Wake Up Call: Still Standing • No Whey! • Census Confusion

This week, the United States Law Week First Move is 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!

Rosenstein Still Standing

U.S. Deputy Attorney General Rod Rosenstein at the Department of Justice July 13, 2018 Chip Somodevilla/Getty Images

Taking His Lumps: Deputy Attorney General Rod Rosenstein is still around after months of threats by President Trump’s allies.

  • 11 House conservatives have filed articles of impeachment

High Anxiety: Is Rosenstein in the clear?

  • Rep. Dennis Ross of Florida sees no enthusiasm for taking definitive action against the No. 2 official at the Justice Department—either now or nearer to the November midterms.
  • Republican Sen. Lindsey Graham of South Carolina says it’s “more likely” he will end up “in the NBA playing basketball” than Rosenstein losing his job because of impeachment.

See You in September: When House lawmakers return to Washington in September—roughly 60 days before the November elections—there will be little appetite for contentious votes on impeachment or contempt of Congress.

Billy House of Bloomberg News has the story.

Salmonella in the Whey

Expanded Recalls: There may be more recalls of foods containing salmonella-tainted whey powder, the FDA warned. Potentially contaminated lots of the milk byproduct have already caused recalls by the manufacturers of Ritz crackers, Goldfish, Hungry Man frozen dinners, and other products.

Questioning the Tests: Food safety lawyers say the recall of whey powder produced by Associated Milk Producers raises more questions than it answers. The company said it issued the recall out of an abundance of caution, but a top food safety lawyer tells Bloomberg Law the reported testing results were “odd.”

Rapid Response: No illnesses have been reported, but FDA gained voluntary recalls from food manufacturers Mondelez Global LLC, Pepperidge Farm Inc., Flowers Foods Inc., and Pinnacle Foods Inc. Widespread consumption of the products, some of them popular with children, was a factor in the agency’s early intervention, the FDA said.

Bloomberg Law’s Steven Sellers has the story.

Suit Over Census Citizenship Questions Advance

2020 Census: A challenge to the Commerce Department’s decision to ask U.S. residents about their citizenship status as part of the 2020 census is moving forward.

  • The American Civil Liberties Union and more than a dozen states, cities, and counties have filed suit.

U.S. District Judge Jesse Furman found the citizenship question has been properly used in the past.

  • But the judge said the plaintiffs may be able to mount a due process case.
  • Court is allowing plaintiffs to seek documents intended to shed light on the process that led to the Commerce Department’s decision.

Discriminatory Animus: To succeed, the plaintiffs will have to show the decision was motivated by discriminatory animus and that its application will result in a discriminatory effect

Bloomberg News’s Chris Dolmetsch has the story.

From Our Notebooks

Amazon Eclipse Glasses Suit: A South Carolina couple has to individually arbitrate claims that they suffered eye damage after viewing last summer’s eclipse through flawed glasses sold by the online retailer. Amazon provided enough notice of the mandatory arbitration provision and class action waiver, a federal court says. The ruling joins a host of others that have allowed companies to bind consumers to arbitration by hyperlinking to terms of use and including a notice that hitting “buy” means agreement. Bloomberg Law’s Julie Steinberg has the story.

People wear solar viewing glasses during a solar eclipse on Aug. 21, 2017 avid Paul Morris/Bloomberg via Getty Images

Police Can Be Sued for Arrest After Facebook Post: A gun control advocate arrested after responding to a friend’s post about what kind of guns he’d use in certain situations can sue the cops who arrested him. The police should have known he didn’t make a true threat, a federal appeals court held. Bloomberg Law’s Melissa Stanzione has the story.

No Arbitration for Student Loan Claims: A Chapter 7 debtor’s class action claim that Navient and Sallie Mae unlawfully tried to get borrowers to repay private student loans even though the obligations were wiped out in bankruptcy doesn’t have to go to arbitration, a federal bankruptcy court in New York ruled. Arbitration would be an inherent conflict with the Bankruptcy Code and its objective to give debtors a “fresh start.” Bloomberg Law’s Diane Davis has the story.

Punitives No Help in Legal Malpractice: Because legal malpractice plaintiffs can’t recover punitive damages in Illinois, they won’t count toward the $75,000 minimum needed to sue in federal court. Legal ethics reporter Mindy Rattan has the story.

Convicted Fraudster Seeks Love Letters: Keenan Hauke, a hedge fund manager serving 10 years for securities fraud, is fighting for access to emails his ex-wife and defense lawyer exchanged while carrying on a secret affair that could provide a basis for vacating Hauke’s conviction. The ex-wife, now married to Hauke’s former lawyer, filed a July 25 motion asking a federal judge to quash subpoenas to her email providers. Legal ethics reporter Samson Habte will have the story.

Around the Web

Shook, Hardy & Bacon lawyer Paul Reid objected when a pregnant opposing lawyer sought a continuance because her due date coincided with a planned trial, the ABA Journal reports.

Paul Weiss attorneys Colin Kelly and Aubry Smith are moving on to Fried Frank and Mayer Brown, respectively, American Lawyer reports.

Brouse McDowell is adding a dozen lawyers from Thacker Robinson Zinz, the Akron Beacon Journal reports.

White House Ethics Lawyer Stefan Passantino is departing his position, Vanity Fair reports.

Space Lawyers —as in outer space—are battling over extraterrestrial real estate, including Earth’s moon, Hot Air 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