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    The Lawletter Blog

    Anne B. Hemenway

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    CONSTITUTIONAL LAW:   The First Amendment and Personal Social Media

    Posted by Anne B. Hemenway on Mon, Jul 29, 2024 @ 10:07 AM

    Lawletter Vol 49 No. 2

    Anne Hemenway—Senior Attorney

                On March 15, 2024, the United States Supreme Court decided a pair of cases from Michigan and California on the issue of whether a public official violates the First Amendment by blocking individuals from the public official's personal social media page. In the Michigan case, Lindke v. Freed, 601 U.S. 187, 144 S. Ct. 756, 218 L. Ed. 2d 121 (2024), Kevin Lindke, a private citizen argued that James R. Freed, the unelected city manager of Port Huron, Michigan, violated his free speech rights when the unelected official blocked the complaining citizen from his personal Facebook page. In the California case, O'Connor-Ratcliff v. Garnier, 601 U.S. 205, 144 S. Ct. 717, 218 L. Ed. 2d 138 (2024), two elected school board members blocked from their social media pages the parents who criticized the board of trustees. In both cases, the blocked citizens were outraged that they were barred from the private internet sites.

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    Topics: Michigan, social media, First Amendment

    ELECTION LAW:   Federal District Court Judge Orders Georgia Lawmakers to Redraw Congressional Map for the 2024 Election

    Posted by Anne B. Hemenway on Wed, Dec 13, 2023 @ 13:12 PM

    Lawletter No. 48 Vol. 4

    ELECTION LAW:  Federal District Court Judge Orders Georgia Lawmakers to RedrawCongressional Map for the 2024 Election

    Anne Hemenway, Senior Attorney

            On October 26, 2023, in three cases similar to the U.S. Supreme Court decision rejecting Alabama's congressional map, the Federal District Court for the Northern District of Georgia in Alpha Phi Alpha Fraternity, Inc. v. Brad Raffensperger, No. 1:21-CV-05337-SCJ, Pendergrass v. Brad Raffensperger, No. 1:21-CV-05339-SCJ, and Grant v. Brad Raffensperger, No. 1:22-CV-00122-SCJ, 2023 U.S. Dist. LEXIS 192080 (N.D. Ga. Oct. 26, 2023), wrote a consolidated 516-page Opinion and Memorandum of Decision also rejecting Georgia lawmakers' congressional maps. In a state where the recent population growth has been almost entirely made up of minority residents, the state's congressional and legislative maps presented to the court did not add more majority-Black districts. Accordingly, the federal court concluded that despite the fact that Black voters have more opportunities, "the political process is not equally open to Black voters." Further, the court concluded that the current U.S. congressional maps presented to the court dilute and diminish the Black population's voting power in the Atlanta area.

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    Topics: federal district court, election law

    BANKRUPTCY:   The Bankruptcy Court's Discretionary Authority Under Rule 1016 to Allow Further Administration of a Chapter 13 Case

    Posted by Anne B. Hemenway on Mon, May 1, 2023 @ 14:05 PM

    The Lawletter Vol. 48 No. 1

    Anne Hemenway, Senior Attorney, National Legal Research Group, Inc.

            It is not uncommon for a debtor who filed a Chapter 11 or 13 bankruptcy case to die or become incapacitated during the life of the bankruptcy proceeding. Under Fed. R. Bankr. P. 1016:

    If a reorganization, family farmer's debt adjustment, or individual's debt adjustment case is pending under chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death or incompetency had not occurred.

                Interestingly, the rule is different where the debtor filed under Chapter 7. The death or incompetency of the debtor "shall not abate a liquidation case under chapter 7 of the Code." This is because the death of the debtor has no practical effect on the administration of a Chapter 7 which is in the hands of the Chapter 7 Trustee. See Hawkins v. Eads, 135 B.R. 380 (Bankr. E.D. Cal. 1991).

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    Topics: bankruptcy, bankruptcy court, Rule 1016, Lawletter Vol. 48 No. 1

    BANKRUPTCY: TALC Powder Bankruptcy

    Posted by Anne B. Hemenway on Thu, Nov 11, 2021 @ 10:11 AM

    The Lawletter Vol 46 No 6

    Anne Hemenway—Senior Attorney, National Legal Research Group

                Facing tens of thousands of claims against Johnson & Johnson's ("J&J's") baby powder and other talc products, alleging that the baby powder contains asbestos and causes cancer, J&J put the talc claims into a separate entity called LTL Management LLC, which then filed for Chapter 11 bankruptcy in mid-October 2021 in the U.S. Bankruptcy Court for the Western District of North Carolina. In re LTL Mgmt., LLC, No. 21-30589 (Bankr. W.D.N.C. Oct. 14, 2021). J&J itself is not part of the bankruptcy filing.

                The pharmaceutical company's corporate shuffling and bankruptcy maneuver is known as a "Texas two-step" bankruptcy, whereby J&J split its business through a divisional merger under Texas law and created a new entity to carry the talc liabilities. The Texas law allowed J&J to avoid accountability for the over 40,000 talc powder claims. The State's divisive merger statute, Tex. Bus. Orgs. Code Ann. § 1.002(55)(A), allows a company to divide into two separate entities. Because a divisive merger is not treated as an assignment of assets or liabilities, it is used as a strategic alternative to a traditional spin off or asset sale.

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    Topics: bankruptcy, Anne B. Hemenway, J&J talc claims, Texas two-step bankruptcy, divisive merger

    CIVIL PROCEDURE: COVID-19 Venue Issues and Relevant Practical Problems

    Posted by Anne B. Hemenway on Thu, Feb 18, 2021 @ 09:02 AM

    The Lawletter Vol 46 No 2         

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has caused many state courts around the country to either close down during parts of 2020 and 2021 or dramatically curtail operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

                In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

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    Topics: Anne B. Hemenway, COVID-19, court venue issues, too speculative, pandemic's disparate impact, relevant practical problems

    CONTRACTS:  Contract Excuses and the COVID-19 Pandemic

    Posted by Anne B. Hemenway on Wed, Jun 17, 2020 @ 11:06 AM

    Anne Hemenway, Senior Attorney, National Legal Research Group

         The economic fallout from the COVID-19 pandemic and the sudden and worldwide shuttering of large and small businesses may be felt for a long time.  One of the resulting issues is the applicability of a force majeure clause, or common-law impossibility, frustration of purpose, or commercial impracticability excuses for contract performance and obligations. Force majeure clauses come into effect when events occurring beyond the control of the parties prevent performance of contract obligations. Some contracts include specific force majeure events that will excuse performance at this time, such as a pandemic (the World Health Organization declared a pandemic on March 11, 2020) or when governmental or administrative action is taken that disrupts or precludes performance under a contract.

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    Topics: contracts, COVID-19, force majeure clause, frustration of purpose, excuse for performance

    PATENTS: A Federal Agency Is Not a "Person" for Purposes of Review of the Validity of a Patent Under the Leahy-Smith Act

    Posted by Anne B. Hemenway on Wed, Dec 18, 2019 @ 10:12 AM

    The Lawletter Vol 44 No 6

    Anne Hemenway—Senior Attorney, National Legal Research Group

                In Return Mail, Inc. v. USPS, 139 S. Ct. 1853 (2019), the U.S. Supreme Court held that a federal agency is not considered a "person" for purposes of seeking review of the validity of a patent under the Leahy-Smith America Invents Act of 2011 ("AIA"), 35 U.S.C. §§ 1 et seq.  The AIA, enacted on September 16, 2011, changed the patent system from a first-to-invent to a first-inventor-to-file system.  The transition to a first-to-file system took place over a period of approximately 18 months.

                The AIA also created the Patent Trial and Appeal Board and established three types of administrative review proceedings before the Board.  See 35 U.S.C. § 6.  The reviews include an "inter partes review," a "post-grant review," and a "covered-business-method" ("CBM") review.  See id. §§ 311, 321.

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    Topics: Anne B. Hemenway, patents, Leahy-Smith Act, first-inventor-to-file system

    FAMILY LAW: Admissibility of GPS Surveillance Data in Civil Cases

    Posted by Anne B. Hemenway on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Anne Hemenway—Senior Attorney, National Legal Research Group

     

              When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible.  Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data.

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    Topics: family law, Anne B. Hemenway, GPS, invasion of privacy, exclusionary rule, no consent, admissibility of data

    BANKRUPTCY: Reluctant Judicial Enforcement of Prepetition Automatic Stay Waivers

    Posted by Anne B. Hemenway on Thu, Nov 29, 2018 @ 08:11 AM

    The Lawletter Vol 43 No 7

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

         Courts are reluctant to enforce prepetition automatic stay waivers, but will not rule out the possibility of enforcement. Often found as a clause in a forbearance agreement, a prepetition automatic stay waiver is therefore not per se unenforceable, notwithstanding the fact that its close relative, a prepetition waiver of a bankruptcy filing, is per se unenforceable. See In re Simpson, Case No. 17-10442, 2018 WL 1940378 (Bankr. D. Vt. Apr. 23, 2018). Generally, courts will hold that the debtor must carry the burden of proving that such contractual waiver should not be enforced. In re A. Hirsch Realty, LLC, 583 B.R. 583 (Bankr. D. Mass. 2018). 

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    Topics: bankruptcy, Anne B. Hemenway, enforceability, prepetition automatic stay waivers

    Civil Rights Litigation: The Supreme Court Further Restricts Bivens Actions

    Posted by Anne B. Hemenway on Fri, Dec 15, 2017 @ 09:12 AM

    The Lawletter Vol 42 No 9

    Anne Hemenway, Senior Attorney, National Legal Research Group

                Since the United States Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal courts have allowed individuals to seek damages for unconstitutional conduct by individual federal officers. A Bivens action, as they are known, recognizes an implied cause of action directly under authority of the U.S. Constitution, where there is an absence of any statute specifically conferring the cause of action.

                Recently, in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court recognized Bivens actions but held that it will now take a more "cautious" approach to each Bivens case presented to the Court to determine if the action falls under the previous Bivens claims and will not accept a Bivens action that is brought in a new context. The Court's stated purpose in taking this new cautious approach is to avoid intruding on the role of Congress to enact statutes for claims outside of the current Bivens context. To determine whether a Bivens action falls outside of the current Bivens context and is thus "novel" and not actionable, the Court rejected the Second Circuit Court of Appeals' previous two-part test and instead stated that the proper test for determining whether a case presents a new Bivens context is "[i]f the case is different in a meaningful way from previous Bivens cases decided by this Court." Id. at 1859. 

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    Topics: civil rights, Bivens actions, action outside Bivens context

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