Wake Up Call: Four for Four • Five-Percent Solution • School Board Prayer

This week, the United States Law Week First Move will be filling in for the Wake Up Call column. First Move is a morning email available as part of your Bloomberg Law or United States Law Week subscription. Hope you enjoy!

Embracing Change

Solicitor General nominee Noel Francisco attends his Senate Judiciary Committee confirmation hearing on May 10, 2017. Mark Wilson/Getty Images

Solicitor General Noel Francisco went four for four in Supreme Court cases where the federal government switched positions, and more changes are likely on the way.

  • “What’s distinctive” about this rookie SG is his focus on “attacking the size and scope of the federal government,” law professor David Noll tells Bloomberg Law.
  • Win rate: Francisco has won about 57 percent of cases at the high court according to research conducted by Bloomberg Law, not including mixed results, compared to the Obama administration’s win rate of about 44 percent.
  • Attorney Chuck Cooper, who turned down the SG gig, says his former subordinate Francisco’s “record of success speaks for itself.”

Bloomberg Law’s Patrick Gregory has the story.

Calls for SCOTUS Response

One-in-a-Thousand: Every term, the Supreme Court gets upward of 7,000 requests to review cases. The justices agree to hear fewer than 70.

  • Closer Look: One indication the court is taking a closer look is a “call for response.” When that happens, the grant rate goes from under 1 percent to nearly 5.

(Not) Risky Business: Respondents often choose not to file a response to a request for Supreme Court review, given that the vast majority of such requests are turned away. That’s usually not risky, as the court will typically call for a response if at least one justice believes the case has merit.

  • Not All Alike. The grant rate following a CFR increases more if it’s a “paid case”—that is, where the petitioner isn’t indigent and can pay the court’s filing fees.
  • 10 Percent: The grant rate following a CFR in paid cases is just under 10 percent, whereas filings by indigent petitioners—”in forma pauperis” petitioners—is around 2 percent.

Bloomberg Law’s Kimberly Robinson has the story.

Bayer Essure Suits Skyrocket

Severe Pain: Bayer faces more than 16,000 suits from women who say the permanent contraceptive caused severe pain, allergic reactions, organ damage, and other harm.

  • No More Sales: The company recently said it will stop selling Essure in the U.S. this year, but stands by the safety profile of the device, an alternative to surgical sterilization.

Bloomberg News’s Jef Feeley and Margaret Cronin Fisk have the story.

Choosing Courts: Bayer lost two recent battles to keep Essure suits in federal courts in Pennsylvania and Indiana. Bayer didn’t show justification for a federal court to hear the suits, according to two orders sending the cases back to state courts.

  • Plaintiffs generally prefer to litigate in state court, and Essure litigation has been no different. Essure plaintiffs–overall–have generally been successful in getting cases sent back to state courts.

Bloomberg Law’s Julie Steinberg provides coverage.

From Our Notebooks

Remington Trigger-Defect Deal OK’d: A plan to notify rifle owners about a class action settlement was adequate, and the deal sufficiently benefited class members, the Eighth Circuit ruled. The decision ends an appeal by objectors alarmed by a low rate of requests to fix Remington Arms Co. rifles that are allegedly prone to unintentional discharge. Numerous state attorneys general joined the fight as friends of the court on both sides of the appeal. Martina Barash has the story.

Remington shotguns during the NRA Annual Meeting & Exhibits on May 5, 2018 in Dallas Justin Sullivan/Getty Images

NJ Judge Chats with Bloomberg Law: There is greater diversity at New Jersey’s federal district court since Chief Judge Jose Linares joined the bench in 2002 but the lack of judges due to unfilled vacancies is straining its resources, Linares told Bloomberg Law’s Melissa Heelan Stanzione. This worries Linares especially because of how it will impact the poor, who don’t have the resources to “weather the storm,” he said. Cases are piling up and we’re “heading towards a judicial crisis,” Linares said.

Ex-NHL Players Ice Appeal: Retired NHL won’t appeal denial of class action status for their concussion claims against the league, lead counsel for the players told Bloomberg Law. Bloomberg Law’s Steve Sellers has the story.

School Board Prayer: A California school board’s religious activities during public meetings ran afoul of the Constitution’s establishment clause, the Ninth Circuit ruled. The board’s practice was a far cry from the “legislative-prayer tradition” that the U.S. Supreme Court has previously blessed. Kimberly Robinson has the report.

Trump Setback on Emoluments: A judge has ruled for a second time that President Trump must face a lawsuit accusing him of improperly profiting from his posh downtown Washington hotel. Bloomberg News has coverage.

Tiered Fee Approach OK’d: Caribbean Cruise Line and others settled a robocall class action for $56 to $76 million, depending on how many class members make claims. Now the Seventh Circuit says it’s acceptable to award class counsel at least $15 million in fees using a sliding-scale formula that gives them 36 percent of the first $10 million recovered by the class, 30 percent of the second $10 million, and so on. Perry Cooper has the story.

Fewer Bankruptcies, More Chapter 11s: Overall bankruptcy filings continue to drop, but Chapter 11 cases increased in the 12-month period ending June 30, as compared to last year, according to statistics published by the Administrative Office of the U.S. Courts. A law professor looks to watch these figures in light of uncertain effects from possible trade wars. Bloomberg Law’s Daniel Gill reports.

Around the Web

King & Spalding is adding as partners consumer class action attorneys Livia Kiser and Michael Shortnacy, both from Sidley Austin, American Lawyer reports.

Holland & Knight is substantially reducing its office space in Chicago, Connect Chicago reports.

Big Law: Law firms in “reasonably large cities,” like Seattle, St. Louis, Minneapolis, Denver and Atlanta, perform “just as well as or better” than firms in the largest, most expensive cities, like New York and Los Angeles, American Lawyer reports.

Greenberg Traurig’s fee request was substantially cut in a coop shareholders suit after a judge called the request “highway robbery without the six-gun,” Habitat Magazine reports.

Cozen O’Connor: Miguel Pozo, the former head of litigation for Mercedes-Benz USA, is joining Cozen O’Connor as a partner, Legal Intelligencer reports.

To contact the reporter on this story: Jessie Kokrda Kamens in Washington at jkamens@bloomberglaw.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com