News

U.S. Mulls Doubling Tariffs on China

According to Business Standard, Recently at the Asia Pacific Economic Co-operation (APEC) summit in Papua New Guinea, U.S. Vice President Mike Pence took a hard line Saturday when asked about China and tariffs stating, "The United States, will not change course until China changes its ways." The U.S. is asking China for improve market access and intellectual property protections for U.S. companies, cut industrial subsidies and slash a $375 billion trade gap. With no end in sight this warning will likely be unwelcome news to financial markets that had hoped for a thaw in relations and maybe even some sort of deal at a G20 meeting later this month in Argentina. For his part, Chinese President Xi Jinping has said, "History has shown that confrontation, whether in the form of a Cold War, hot war or trade war will produce no winners."

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Mark Your Calendars!

Trump Endorses Bipartisan Criminal Justice Reform Bill

President Trump today threw his support behind bipartisan legislation that would loosen some mandatory minimum sentencing laws, The Washington Post reports. The First Step Act, he said, included “reasonable sentencing reforms while keeping dangerous and violent criminals off our streets.” The bill includes language that lowers mandatory minimum sentences for drug felonies, including reducing the “three-strikes” penalty from life behind bars to 25 years. It also would include Senate language that retroactively applies the Fair Sentencing Act of 2010, which reduces the disparity in sentencing guidelines between crack and powder cocaine offenses.
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Judge Blocks Keystone Pipeline Pending Climate-Impact Review

A federal judge in Montana has blocked the construction of the Keystone XL oil pipeline, citing the need for additional review of the impact on climate change, The Washington Post reports. Brian Morris of the U.S. District Court in Montana said the State Department ignored crucial issues of climate change to further the president’s goal of letting the pipeline be built. In doing so, the administration ran afoul of the Administrative Procedure Act, which requires “reasoned” explanations for government decisions, particularly when they represent reversals of well-studied actions. 
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Justice Ginsburg Hospitalized for Fractured Ribs

Justice Ruth Bader Ginsburg fractured three ribs on her left side during a fall yesterday in her office, resulting in her hospitalization, CBS News reports. This is the second time Ginsburg has experienced such an injury, having broken ribs in a fall in 2012. 
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Kavanaugh Formally Takes Seat at SCOTUS Bench

Brett Kavanaugh formally took his seat as the 114th justice at a U.S. Supreme Court investiture ceremony last week, NPR reports. President Trump and first lady Melania Trump attended the ceremony. Justice Anthony Kennedy, whose retirement created the vacancy for Kavanaugh's nomination, also attended.
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Former Baker Aide to be Ambassador to Australia

President Donald Trump has nominated attorney and Tennessee native A.B. Culvahouse Jr. as ambassador to Australia, the Nashville Post reports. The former aide to Sen. Howard Baker also served as legal counsel to President Ronald Regan and was previously chair of international law firm O’Melveny & Myers. “A.B. Culvahouse is an exceptionally fine nominee for Ambassador to Australia,” Sen. Lamar Alexander said in a statement. “His experience as counsel to President Reagan and President Trump and former Senate Majority Leader Howard Baker, and his leadership of one of the world’s major law firms equip him to represent our country well."

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Hardin Steps Down as President of Former U.S. Attorneys Group

Nashville attorney Hal Hardin stepped down as president of the National Association of Former United States Attorneys during the group’s recent annual conference in Nashville. Nashville Mayor David Briley and Tennessee Deputy Governor Jim Henry joined in welcoming NAFUSA to Nashville and proclaimed a “NAFUSA Week” in Nashville. Terry Flynn from the Western District of New York took over the reins of the organization from Hardin.

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SCOTUS Allows Trial in Challenge to Census Citizenship Question

The U.S. Supreme Court has refused to block a trial in a challenge to the U.S. Commerce Department’s decision to add a citizenship question to the 2020 census, USA Today reports. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, while it’s unclear how the other justices voted. Federal district and appeals court judges had approved the depositions and green-lighted the trial, which was set to start soon.
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Ex-Pilot President Denied Christmas Break Before Starting Fraud Sentence

A request from convicted Pilot Flying J former President Mark Hazelwood that he have until after Christmas to begin serving his 12 ½ years in prison for fraud has been denied, Knoxnews reports. "If the court attempted to set (prison) dates that did not conflict with any religious holidays, it would be unable to set any dates at all," U.S. District Judge Curtis Collier said. "Easter, the most important Christian religious holiday, would come just a few short months after Christmas." Hazelwood was convicted in a scheme to rip off small trucking companies of more than $50 million.

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New Videos Available

Need a few CLE hours? Several presentations from this year's Litigation and Appellate Forum are now available online. Take a look at the list below and view one today!

New E-Filing Process and its Impact on Tennessee Rules - Jim Hivner, Clerk of the Tennessee Supreme Court, will discuss the new E-filing process in the Appellate courts and its impact on Tennessee rules.

Open Courts - Judge Brandon Gibson discuss the importance of openness and transparency in the court system and the presumption of openness of government records. 

Oral Argument Preparation Panel - This panel discusses perfecting your appeal before the trial even ends. You will hear about tips and techniques used by some of the most experienced trial lawyers in Tennessee.

Perspectives from the Bench - This presentation will help you the next time you appear in Federal court.

Taking and Defending Effective Depositions - In this presentation you will learn the techniques to successfully take or defend a deposition to your greatest advantage.

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SCOTUS Petitioned to Again Rule in Case Involving Cake for Same-sex Couples

The former owners of an Oregon bakery are asking the U.S. Supreme Court to accept their appeal and decide that they had a First Amendment right to refuse to bake a custom cake for a same-sex wedding, The ABA Journal reports. The decision could resolve a broader question that the Supreme Court didn’t settle in its Masterpiece Cakeshop decision involving a Colorado baker who refused to bake a cake for a same-sex wedding. “The State of Oregon drove Melissa and Aaron Klein out of the custom-cake business and hit them with a $135,000 penalty because the Kleins could not in good conscience employ their artistic talents to express a message celebrating a same-sex wedding ritual,” a cert petition filed Oct. 19 says.
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Pain Clinic CEO Implicated in Medicaid Fraud Conspiracy

The former CEO of the recently shuttered Brentwood-based pain clinic company Comprehensive Pain Specialists (CPS) is accused of plotting to forge the signature of a dead patient so Medicaid could be billed in her name, The Tennessean reports. Former CPS CEO John Davis allegedly emailed about the forgery with an accomplice, Brenda Montgomery, as part of an illegal kickback scheme. Prosecutors have said that Davis’ prosecution has little to do with the direct operations of CPS and are primarily related to a “side agreement” he had with Montgomery, who was the head of a medical device company named CCC Medical Inc. Davis’ attorney has filed a motion for relief regarding the emails in question.

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Basic Tech Checklist for Firms

Law firms attempting to stay competitive and state-of-the-art need to consistently evaluate their use of technology. In addition to staying competitive, technological competency is required. In 2017, the Tennessee Supreme Court amended Rule 8 of the Rules of Professional Responsibility to include this obligation. Above the Law presents a simple and straightforward tech checklist for law firms or lawyers seeking guidance in this area.   

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Park Service Proposes New Rules for Protests

Public comments are being sought on a proposal from the National Park Service that would overhaul rules for protests in front of the White House and at other iconic locations in Washington, D.C. The Hill reports that the proposal would close much of the sidewalk north of the White House to protests, limit the ability for groups to have spontaneous protests without permits in that area and on the National Mall, and would open the door to potentially charging some demonstrating groups fees. The NPS cites its mandate to protect land, saying that it wants to “provide greater clarity to the public about how and where demonstrations and special events may be conducted." Opponents say it is an attempt to limit free speech and that those spaces need to remain welcoming for the First-Amendment-guaranteed right to protest.

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President Names 13 Nominees to Federal Bench, Including One in Tennessee

The White House announced 13 new judicial nominees, including one for a seat in Tennessee, Law.com reports. President Donald Trump nominated Judge Clifton Corker for a seat in the Eastern District of Tennessee. The nominees include five picks for appeals courts and eight for trial court seats.
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New Supreme Court Justice to Begin Hearing Cases

What will be the first cases newly sworn in Supreme Justice Brett Kavanaugh hears? Bloomberg News looks at cases coming before the court this week involving penalties for gun crimes and more. Kavanaugh took the oath of office last weekend.

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Deadline Near for TBA Supreme Court Admissions Event

The U.S. Supreme Court is back in session, so act now to take part in the 35th Annual TBA Academy and Admissions Ceremony, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22 and space is limited.
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Tech Companies Encourage National Data Privacy Laws to Preempt California Law

During a Senate hearing Wednesday, major technology and internet companies — including Apple, Alphabet, Amazon, AT&T, Charter and Twitter — encouraged the passage of federal legislation to protect data privacy that would preempt the tough privacy law that California adopted, set to take effect in 2020, Reuters reports. The companies acknowledged the importance of being more transparent with personal data use and giving users more control over their data, but argue that California’s legislation is too burdensome due to confusing language, making compliance difficult. In addition to California adopting tough privacy laws, the European Union General Data Protection Regulation took effect in May. Violations carry stiff fines in the millions of dollars. The U.S. Commerce Department is seeking comments on how to set nationwide data privacy laws.  

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Arizona Sex Crimes Prosecutor Will Question Kavanaugh, Accuser

Rachel Mitchell, an Arizona sex crimes prosecutor, has been chosen to lead questioning during a hearing involving U.S. Supreme Court nominee Brett Kavanaugh and a woman who accused him of sexually assaulting her when they were teenagers, The Arizona Republic reports. "The goal is to de-politicize the process and get to the truth,” Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said of the choice.
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Bill in U.S. House Would Eliminate PACER Fees

A new bill in the U.S. House of Representatives would prohibit the federal courts from charging for public documents, The ABA Journal reports. The Electronic Court Records Reform Act would require documents in the PACER database to be free, a change from the current 10 cents per page with a cap of $3. “Americans deserve a justice system that is transparent and accessible,” said Republican Rep. Doug Collins of Georgia, the bill’s sponsor.
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Kavanaugh Accuser Invited to Testify Next Week

U.S. Supreme Court nominee Brett Kavanaugh and the woman who accused him of attempting to rape her when they were both high school students have been asked to testify at a hearing next Monday, The Hill reports. The hearing will give lawmakers a chance to “give these recent allegations a full airing,” said Senate Judiciary Committee Chair Chuck Grassley, R-Iowa. Christine Blasey Ford, Kavanaugh’s accuser, has not yet confirmed she will testify.
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DOJ Gets November Deadline to Respond to Alabama Immigrant Census Lawsuit

The federal government has until Nov. 13 to respond to Alabama's lawsuit seeking to exclude immigrants living in the country illegally from U.S. Census counts, The Associated Press reports. A federal judge granted the extension after lawyers said the Department of Justice components needed additional time to finish "evaluating the arguments that the government will make in this matter." Alabama Attorney General Steve Marshall filed the lawsuit against the federal government in June. Marshall argues the immigrants should not be included in census counts used to distribute congressional district.
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Be Sworn In at the U.S. Supreme Court in November

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 35th Annual TBA Academy, Nov. 26-27. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the program, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for participants. The deadline to submit applications is Oct. 22.
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Kavanaugh Dodges Questions on Same-sex Marriage

U.S. Supreme Court nominee Brett Kavanaugh referred to the recent Masterpiece Cakeshop ruling when asked whether he supports same-sex marriage last Thursday, the Washington Blade reports. Sen. Kamala Harris, D-Calif., asked Kavanaugh whether he thinks the Supreme Court’s 2015 decision in Obergefell v. Hodges was correctly decided, to which Kavanaugh responded by referencing five cases on LGBT rights written by former Associate Justice Anthony Kennedy, among them the Masterpiece Cakeshop decision. After being further pressed regarding his feelings on the Obergefell decision, Kavanaugh continued to read a statement from the Masterpiece ruling, stating “In Masterpiece Cakeshop, and this is, I think, relevant to your question, Justice Kennedy wrote in the majority opinion joined by Chief Justice [John] Roberts and Justice [Samuel] Alito and Justice [Neil] Gorsuch and Justice [Stephen] Breyer, the days of discriminating against gay and lesbian Americans as inferior in dignity and worth are over.” The Senate will vote on Kavanaugh’s confirmation in the coming weeks.

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