HB Litigation News

Category: News

DEI Programs as a Source of Liability for Law Firms and Other Businesses

The Author

William (Billy) JonesMoye White LLP

An experienced and accomplished litigator, Billy’s practice focuses on complex civil litigation and business disputes. He defends business clients involved in product liability defense, franchise and distribution disputes, insurance defense and coverage issues, trust and estate litigation, as well as real estate litigation.

Billy’s practice has also included representation of clients in a variety of appellate courts, including the Colorado Court of Appeals, the federal Fourth and Tenth Circuit Courts of Appeals, the Virginia Supreme Court, and the South Dakota Supreme Court. Billy has tried cases in over 15 states over the lifetime of his career.

Focused and aggressive, Billy represents corporate clients in the variety of claims that arise in the business world. For his clients with interests in manufacturing, product distribution, and retail businesses, Billy has extensive experience defending against manufacturing, design defect, negligence, and breach of warranty claims.

Billy is the former Vice-chair of Moye White’s Trial Section and currently serves as Co-Chair of the Franchise & Distribution Group, representing franchisors in franchise disputes, and providing valuable advice regarding business development and sales, as well as offerings compliance. He is also active in representing clients in Colorado’s burgeoning brewing and distilling markets.

A true advocate, Billy protects the interests of his clients against claims of directors’ and officers’ liability, bad faith, negligence, and other torts. He also has extensive experience in cases involving real estate and associated transactions.

Billy provides exceptional counsel at trial, through appeal, and in mediation and arbitration proceedings. He has extensive experience before the state and federal courts in Colorado, and has represented clients in various federal courts throughout the country.

DEI Programs as a Source of Liability for Law Firms and Other Businesses

Whether internally or with clients, law firms should consider changes to programs that may still meet the goal of increasing underrepresented populations without running afoul of claims alleging racial discrimination. Creative solutions may be available, and attorneys should be discussing these options with their clients.

From a risk management perspective, law firms should engage in an internal review of their own DEI initiatives and programs. Practices and programs that were once compliant with applicable law may no longer be.

Abstract:

Two recent cases against international law firms point to this emerging trend in litigation that could have widespread implications for diversity, equity, and inclusion (DEI) programs. In the wake of this year’s U.S. Supreme Court opinion striking down the use of race in college admissions, there was much speculation about the impact these rulings might have outside of the academic context—and that remains an unanswered question. However, two recent cases filed against international law firms for their DEI fellowships could be indicators of the impact for law firms and other private businesses.

Download the article now!

August 6, 2025
DEI Programs as a Source of Liability for Law Firms and Other Businesses

The Author

William (Billy) JonesMoye White LLP

An experienced and accomplished litigator, Billy’s practice focuses on complex civil litigation and business disputes. He defends business clients involved in product liability defense, franchise and distribution disputes, insurance defense and coverage issues, trust and estate litigation, as well as real estate litigation.

Billy’s practice has also included representation of clients in a variety of appellate courts, including the Colorado Court of Appeals, the federal Fourth and Tenth Circuit Courts of Appeals, the Virginia Supreme Court, and the South Dakota Supreme Court. Billy has tried cases in over 15 states over the lifetime of his career.

Focused and aggressive, Billy represents corporate clients in the variety of claims that arise in the business world. For his clients with interests in manufacturing, product distribution, and retail businesses, Billy has extensive experience defending against manufacturing, design defect, negligence, and breach of warranty claims.

Billy is the former Vice-chair of Moye White’s Trial Section and currently serves as Co-Chair of the Franchise & Distribution Group, representing franchisors in franchise disputes, and providing valuable advice regarding business development and sales, as well as offerings compliance. He is also active in representing clients in Colorado’s burgeoning brewing and distilling markets.

A true advocate, Billy protects the interests of his clients against claims of directors’ and officers’ liability, bad faith, negligence, and other torts. He also has extensive experience in cases involving real estate and associated transactions.

Billy provides exceptional counsel at trial, through appeal, and in mediation and arbitration proceedings. He has extensive experience before the state and federal courts in Colorado, and has represented clients in various federal courts throughout the country.

DEI Programs as a Source of Liability for Law Firms and Other Businesses

Whether internally or with clients, law firms should consider changes to programs that may still meet the goal of increasing underrepresented populations without running afoul of claims alleging racial discrimination. Creative solutions may be available, and attorneys should be discussing these options with their clients.

From a risk management perspective, law firms should engage in an internal review of their own DEI initiatives and programs. Practices and programs that were once compliant with applicable law may no longer be.

Abstract:

Two recent cases against international law firms point to this emerging trend in litigation that could have widespread implications for diversity, equity, and inclusion (DEI) programs. In the wake of this year’s U.S. Supreme Court opinion striking down the use of race in college admissions, there was much speculation about the impact these rulings might have outside of the academic context—and that remains an unanswered question. However, two recent cases filed against international law firms for their DEI fellowships could be indicators of the impact for law firms and other private businesses.

Download the article now!

August 6, 2025
Judge finds flaws in motion for an injunction against Trump’s wind turbine order

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

Judge finds flaws in motion for an injunction against Trump’s wind turbine order

By: Justin Ward

“The plaintiffs need to return to court with more details about specific harms to specific projects in specific states,” said Judge William Young.

The outlook does not look good for a lawsuit seeking to block President Donald Trump’s effective freeze on new wind turbine production. A federal judge canceled a hearing on the plaintiffs’ proposed temporary injunction this week, citing a lack of “specificity” about the harms experienced by the states that brought the suit.

The District Court of Massachusetts will hear the Trump Administration’s motion to dismiss next week. The federal judge’s statements have largely aligned with the Department of Justice’s arguments, so it’s likely that the administration will prevail.

While Judge William Young acknowledged that wind power was an “important industry” and Trump’s hostility to wind was “indisputable,” he said the plaintiffs, which include more than a dozen states, need to return to court with more details about “specific harms to specific projects in specific states.”

Young recognized that if the administration has the power to grant licenses, it is also entitled to withhold them. Trump’s executive order, issued in the first weeks of his term, places a hold on new offshore wind power permits, pending a review. The order does not provide a timeline for that review to be complete, so it would amount to an indefinite freeze on all new wind power in practice.

Trump’s crusade against wind power started during his first term. He has claimed that wind turbines are “kill[ing] the birds” and “driving the whales crazy.” Environmental groups refuted this and other claims in their amicus brief last month, noting that “cats are responsible for thousands of times more bird deaths than are wind turbines.”

However, if the lawsuit does survive next week’s hearing and secures an injunction, legal experts say it will be mostly a symbolic victory because the federal agency that issues permits still has discretion over the speed at which it works, so a freeze will be replaced by a de facto pause.

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

July 29, 2025
Judge finds flaws in motion for an injunction against Trump’s wind turbine order

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

Judge finds flaws in motion for an injunction against Trump’s wind turbine order

By: Justin Ward

“The plaintiffs need to return to court with more details about specific harms to specific projects in specific states,” said Judge William Young.

The outlook does not look good for a lawsuit seeking to block President Donald Trump’s effective freeze on new wind turbine production. A federal judge canceled a hearing on the plaintiffs’ proposed temporary injunction this week, citing a lack of “specificity” about the harms experienced by the states that brought the suit.

The District Court of Massachusetts will hear the Trump Administration’s motion to dismiss next week. The federal judge’s statements have largely aligned with the Department of Justice’s arguments, so it’s likely that the administration will prevail.

While Judge William Young acknowledged that wind power was an “important industry” and Trump’s hostility to wind was “indisputable,” he said the plaintiffs, which include more than a dozen states, need to return to court with more details about “specific harms to specific projects in specific states.”

Young recognized that if the administration has the power to grant licenses, it is also entitled to withhold them. Trump’s executive order, issued in the first weeks of his term, places a hold on new offshore wind power permits, pending a review. The order does not provide a timeline for that review to be complete, so it would amount to an indefinite freeze on all new wind power in practice.

Trump’s crusade against wind power started during his first term. He has claimed that wind turbines are “kill[ing] the birds” and “driving the whales crazy.” Environmental groups refuted this and other claims in their amicus brief last month, noting that “cats are responsible for thousands of times more bird deaths than are wind turbines.”

However, if the lawsuit does survive next week’s hearing and secures an injunction, legal experts say it will be mostly a symbolic victory because the federal agency that issues permits still has discretion over the speed at which it works, so a freeze will be replaced by a de facto pause.

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

July 29, 2025
Class action alleges Ziploc misled consumers about harmful microplastics in its products

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

Class action alleges Ziploc misled consumers about harmful microplastics in its products

By: Justin Ward

“By pairing the ‘Microwave Safe’ and ‘Freezer’ labels on product packaging, SC Johnson implies that this practice is safe,” the suit alleges.

A California woman initiated a class action lawsuit against SC Johnson in May, claiming that the company did not disclose the potential risks of microplastic leaching in its Ziploc brand plastic storage containers and bags. The suit alleges that SC Johnson made a “material omission” when it neglected to notify consumers that its products contain polyethylene and polypropylene, which have been shown to transfer microplastics into food.

In the civil complaint, the plaintiff claims that SC Johnson’s “Microwave Safe” and “Freezer” labels on its storage products mislead consumers to think that it’s safe to freeze and reheat food inside their containers. The lawsuit cites research showing that freezing or reheating food stored in polyethylene and polypropylene containers can accelerate microplastic leaching.

Furthermore, reheating food that has been previously frozen can worsen the “vulnerability to microwaving due to the weakened structure caused by freezing,” according to the suit. By pairing the “Microwave Safe” and “Freezer” labels on product packaging, SC Johnson implies that this practice is safe, the suit alleges.

Though the SC Johnson includes extensive instructions in its packaging on how to safely reheat foods in its Ziploc containers, these contain no warnings about the risks posed by heating the containers themselves. When exposed to high temperatures, polypropylene products can release microplastics at rates up to 16.2 million particles per liter, according to one study on plastic baby bottles.

Responding to the suit, a spokesperson for SC Johnson called the claims “without merit” and stated: “Plastic is in the food we eat, the water we drink, and the air we breathe, and it comes from many sources. That’s why we are strong advocates for plastic regulation, supporting a global plastics treaty, and sharing the latest scientific research.”

However, the plaintiff in this case is not alleging a specific harm caused by SC Johnson’s product, which would be difficult to prove, given the multiple sources of microplastics in the environment. Following the lead of other high-profile “forever chemical” and microplastics class actions, the plaintiff is only contending that SC Johnson failed to warn consumers about potential harms, a more straightforward claim.

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

June 4, 2025
Facing PFAS lawsuit, Apple claims watch bands are safe, but what does the evidence say?

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

Facing PFAS lawsuit, Apple claims watch bands are safe, but what does the evidence say?

By: Justin Ward

The plaintiffs argue that Apple marketed its smartwatch as ‘the ultimate device for a healthy life’—while knowing it contained hazardous forever chemicals.

Apple has been doing damage control ever since a study found that its smartwatch bands contained “elevated levels” of so-called forever chemicals. Lawyers in California also filed a class action lawsuit earlier this year alleging that the company misleadingly marketed the watches as “safe” and “healthy.” The University of Notre Dame tested 22 smartwatch bands coated in fluoroelastomers to make the rubber materials more resistant to sweat and oil. They found that nine of them—including bands used in Apple smartwatches— had “very high concentrations” of perfluorohexanoic acid (PFHxA). This chemical is a polyfluoroalkyl substance (PFAS), known as a “forever chemical” because it breaks down slowly in the environment and builds up in the human body over time, causing health problems. The company has responded publicly, maintaining that the watch bands are “safe for users to wear” and referring to Apple’s “rigorous testing and analysis” of materials before bringing products to the market.

At the same time, the plaintiffs in the class action lawsuit point to studies showing that PFAS can be absorbed through the skin. However, the Notre Dame study notes that research on dermal absorption is “limited,” and other research on durable waterproof clothing containing PFAS shows that forever chemicals are less likely to enter through the skin compared to other pathways, such as eating or drinking contaminated food and water or inhaling dust.

The lawsuit joins other large class action lawsuits alleging that clothing made with PFAS causes lasting health hazards, including cancer. Firefighters have been at the forefront of PFAS litigation nationwide, winning billions in settlements against chemical companies over the use of PFAS in foam. More recently, they’ve turned their attention to protective gear, which is often made by the same companies, including 3M and DuPont. For example, Connecticut firefighters’ unions launched a $5 million lawsuit last summer seeking relief from the companies that produce their equipment. In February, a man in Vallejo sued Gore-Tex for allegedly using PFAS in its raincoats. Notably, REI prevailed in a similar case last year after the plaintiff failed to prove its jackets contained significant levels of PFAS.

Forever chemicals are ever-present in the environment and can enter the body from multiple sources, so the plaintiffs in the Apple lawsuit may find it difficult to establish that they suffered actual damages from wearing Apple watches versus other more common pathways like inhalation or ingestion. Instead, the plaintiffs are focusing on false advertising as their primary cause of action, highlighting Apple’s marketing of its smartwatch as “the ultimate device for a healthy life.” They argue that Apple deceptively advertised their products as “safe” in violation of California’s Unfair Competition Law. The plaintiffs contended that Apple knew forever chemicals are hazardous and that their products contained PFAS.

Apple announced in 2022 that it would completely phase out PFAS in its supply chain but claimed that existing materials containing PFAS are “safe during product use.”

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

April 10, 2025
AI tool that summarizes evidence from cracked phones wades into uncharted constitutional waters

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

AI tool that summarizes evidence from cracked phones wades into uncharted constitutional waters

By: Justin Ward

The Fourth Amendment does not permit law enforcement to rummage through data, but only to review information for which there is probable cause.
— Jennifer Granick, ACLU

Civil rights organizations are sounding the alarm over a newly released platform that leverages generative AI to analyze large volumes of data from confiscated phones and sniff out traces of criminal activity. While evidence obtained using this brand-new technology has yet to be challenged, watchdogs argue the software violates Fourth Amendment protections against illegal search and seizure.

In early February, Israeli digital forensics company Cellebrite announced that it would add generative AI to its Guardian evidence-management platform. Guardian complements the primary service Cellebrite offers to police: the ability to unlock and decrypt cell phones. Cellebrite bills generative AI as a time-saving feature that will help detectives suss out useful information from gigabytes of data by analyzing browser histories, summarizing chat threads, and evaluating relationships with contacts. In their press release, the company cites the example of a pilot program in a small Pennsylvania town that allegedly used the software to delve into data on a package thief’s cell phone and connect him to an “international organized crime ring.”

However, American Civil Liberties Union attorney Jennifer Granick notes that using artificial intelligence to scan an entire phone this way flies in the face of how some courts have ruled on cell phone searches.“The Fourth Amendment does not permit law enforcement to rummage through data, but only to review information for which there is probable cause,” said Granick, who works for ACLU’s Speech, Privacy, and Technology Project. Referencing the case cited in Cellebrite’s press release, she added that “if you have some porch robberies, but no reason to suspect that they are part of a criminal ring, you are not allowed to fish through the data on a hunch, in the hopes of finding something, or ‘just in case.’”

Courts have long upheld that cell phones should be treated differently under the Fourth Amendment than other forms of property. The Supreme Court ruled in Riley v. California that police must obtain a warrant to search a phone. However, that ruling did not establish a standard governing the scope of cell phone searches. As a result, how the Constitution is applied varies significantly across jurisdictions.

Some courts authorize warrants for police to search entire phones if there is probable cause that doing so will yield evidence of any crime. Others may limit searches to specific categories of information — such as call logs, text messages, images — or time periods. For example, in US v. Morton, the Fifth Circuit found that police had sufficient probable cause to search Morton’s contacts, call logs, and messages for evidence of drug trafficking but lacked enough evidence to root through the pictures on his phone and ultimately discover child sexual abuse materials.

Similarly, in Richardson v. Maryland, the Maryland Court of Appeals ruled that a warrant to search the entire contents of a teen’s cell phone was overly broad, arguing that “a search warrant for a cell phone must be specific enough so that the officers will only search for the items that are related to the probable cause that justifies the search in the first place.” So, while some courts limit its application, Cellebrite’s new tool will remain legal to use without restriction in many jurisdictions until the Supreme Court says otherwise.

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

April 10, 2025
Valid Antitrust Concerns or Partisan Objectives: Which Will Guide Trump’s FTC?

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

Valid Antitrust Concerns or Partisan Objectives: Which Will Guide Trump’s FTC?

By Tom Hagy

Will retribution, like that seen with U.S. law firms, play a role in the federal government’s assessment of mergers and acquisitions?

It would have created the largest supermarket conglomerate in the country at a time when the price of groceries appears to be a deciding factor in whether America remains a democratic republic or morphs into a kleptocratic theocratic oligarchic authoritarian regime. Or whatever we want to call it. My current go-to is “shit show.”

In October 2022, Kroger and Albertsons – two of the nation’s largest chains – announced their intention to merge into what could have been called Grocery Goliath Incorporated. The deal quickly attracted the attention of antitrust enforcers, including the Federal Trade Commission and various state attorneys general, who sued to stop it in January 2024. Facing the specter of trial after failing to get the suits dismissed, the companies dropped plans for their $24.6 billion deal in December 2024.

The federal case was brought during the Biden administration under leadership of Chair Lina Khan, who came into the national spotlight with a paper penned during her third year at Yale Law School titled “Amazon’s Antitrust Paradox.” The premise of the piece was that today’s antitrust law framework, with its focus on consumer prices, is ill-suited to address the anticompetitive effects of platform-based businesses like Amazon. The same could be said for Meta and Alphabet and others.

Viewed as a fresh-thinking visionary by the left and an unqualified “antitrust hipster” by the right, the paper and Khan’s subsequent work captured the attention of President Biden who appointed her to the commission and later as head of the whole shebang. But — and this will only be news to anyone lucky enough to be opening their peepers after a five-month nap — the FTC is very different today.

When President Trump took office the Commission shifted to a Republican majority, with two of the five commissioners being Democrats, one of whom was appointed to a Democratic seat by President Trump during his first term. That is how it is done. Historically, the five-member panel was to have no more than three commissioners from the same party. Much like the rest of the government, though, some of the commissioners’ opinions had become increasingly infused with partisan spices.

Now, with Trump’s early firing of Alvaro Bedoya and Rebecca Kelly Slaughter, both Democratic commissioners who were still serving their seven-year terms, the Commission no longer has its historical balance. (I would say it now has a “hysterical imbalance,” but that would be sophomoric wordplay, although that is my sandbox.) And that is new. Slaughter was appointed in 2018 during Trump’s first term; Bedoya was appointed in 2022 by President Biden. Both are planning to sue and are confident they will be reinstated. “The President illegally fired me from my position as a Federal Trade Commissioner,” Slaughter said, “violating the plain language of a statute and clear Supreme Court precedent.”

Bedoya and Slaughter appeared recently on the podcast “On with Kara Swisher,” where they explained the “immense political pressure” they were under regarding the Kroger-Albertsons deal. Some politicians urged them to block it, but many said to allow it, including some Democrats. Bedoya noted evidence of the harm the merger would do. He recalled a Kroger executive saying under oath that the company was already emboldened enough to mark up milk and eggs well above inflation (it always comes back to eggs). The Commission ultimately voted to block the deal because it would decrease competition. That’s how it is done.

“My concern,” Bedoya told Swisher, “is what’s going to happen with the next mega grocery merger? None of that stuff is going to matter. Higher prices, lower wages, doesn’t matter. What’s going to matter is the donors … That is what I’m deathly afraid of happening at the FTC, and it’s going to screw over regular people … not billionaires.”

“And it’s not just Kroger,” Slaughter added. “The amount of political lobbying and pressure around, for example, the Microsoft Activision deal was outrageous.” She said political pressure is nothing new, but, “Up to this point, that had not come from the White House …”

Put differently, the Commission no longer has a minority point of view or the independence Congress intended.

Democrats’ “Assault on American Businesses”

Trump selected Mark Meador to what was still the fifth seat on the FTC, creating the body’s Republican majority. Meador is considered to be relatively moderate, even though decidedly old-school conservative. He has expressed support for underused and unorthodox enforcement tactics, such as reviving the Robinson-Patman Act to target discriminatory pricing. He is a veteran antitrust attorney with experience in private practice, the FTC, the DOJ’s Antitrust Division, and was an advisor to Senator Mike Lee (R-UT) on antitrust matters. He will be on board to pursue aggressive antitrust enforcement against Big Tech. He even drafted legislation to break up Google’s digital advertising business.

But no one would describe Andrew Ferguson, Trump’s pick to succeed Chair Khan, as “relatively moderate.” To be sure, his appointment pleases right-leaning observers and is predicted by some to be less inclined to challenge deals or litigate against anticompetitive conduct, although recent activity suggests more of a status quo. But the year is young.

During the Biden and Khan years Andrew Ferguson frequently dissented in acrid partisan prose. “The Democratic majority’s four-year regulatory assault on American businesses has hindered economic growth and increased costs to the American consumer. The American people resoundingly rejected this approach at the ballot box in November,” he wrote in one case.

He strongly opposed the ban on non-compete agreements, but on grounds of administrative authority. “I am sympathetic to the policy embodied in the Final Rule [banning non-competes]. Anglo-American law has regarded noncompete agreements with deep suspicion for centuries. They cut against the grain of our ancient common-law tradition protecting every man’s right to ply his trade, and may in some circumstances undermine competition and innovation. But beginning with policy puts the cart before the horse. Lawmaking by the administrative state sits uncomfortably in a democracy. Our Constitution assigns Congress the legislative power because Congress answers to the people for its choices. We are not a legislature; we are an administrative agency wielding only the power lawfully conferred on us by Congress.”

Anyone reading tea leaves will see his use of “administrative state” as a partisan belief that the government is being run by bureaucrats who are simultaneously inept lackadaisical buffoons and diabolically gifted political plants hell-bent on manifesting their own nanny-state agendas.

Andrew Ferguson’s record may suggest a higher threshold for challenging deals and litigating against allegedly anticompetitive conduct, but said the following after the Bedoya and Slaughter terminations: “President Donald J. Trump is the head of the executive branch and is vested with all of the executive power in our government. I have no doubts about his constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability for our government. The Federal Trade Commission will continue its tireless work to protect consumers, lower prices, and police anticompetitive behavior.” (I assume, although quizzically, that he used the phrase “democratic accountability” with a straight face.)

On the pro-competition side of the scorecard, the FTC recently issued a statement reaffirming its opposition to an Indiana hospital merger and has sued to block the merger of two medical device companies which the Commission said would harm competition in the market for hydrophilic coatings used in the manufacture of catheters and guidewires. So, there is, at least, that.

First, Executive Order All the Lawyers

A scan through FTC statements and press releases is a bit like watching ping-pong, as focus moves swiftly from fighting monopolies to fighting Democrats and – a new target of today’s executive branch – attorneys and law firms viewed by the administration as anti-Trump. In fact, the entire profession is considered suspect.

In a statement about the American Bar Association, Ferguson explained why he was banning FTC appointments from participating in the organization.

“[The ABA] advances radical left-wing causes and promotes the business interests of Big Tech. If that ceased to be the case, perhaps senior government officials could once again participate in ABA events. But even after conservatives have for years tried to work within the ABA to make it more balanced, the organization has become only more left-wing and radical. The FTC’s senior leadership should not lend a patina of nonpartisan legitimacy to an organization guided by the principles of the Democrat [sic] Party and the priorities of Big Tech. Rather, we will focus on what is important: Fighting monopolies, promoting competition and economic liberty, protecting consumers from fraud and unfairness, and helping President Trump usher in America’s Golden Age.”

I don’t recall such far-out characterizations and juvenile barbs in official statements. (I’m not a political historian so I welcome insights on the subject.) Politics aside, the use of “Democrat” as an adjective offends the grammar enthusiast in me. It’s the Democratic Party. Democratic. Democratic Party. Also, while “common law” is “Anglo-American law,” the latter is not a phrase I’ve seen used often in my reading of case law for four decades. Common law is more common.

As for the Democrats supporting Big Tech, the legal actions taken against them under Democratic leadership speak for themselves.

One more thing. Ferguson said of the ABA that he does not want to “lend a patina of nonpartisan legitimacy” to a “Democrat” organization. Mr. Chair, you do not have such a patina to loan. Neither a borrower of a patina or a lender of a patina be, especially when you are fresh out of patina. Can I interest you in a petunia of bipartisanship?

This and President Trump’s recent threats against several of the nation’s largest law firms for representing his political opponents are severely concerning. Bravo to WilmerHale, Jenner & Block and Perkins Coie for fighting the fight. (And now he is going after, Susman Godfrey, the firm that successfully advanced the libel case against FoxNEWS on behalf of Dominion Voting Systems, scoring a $788 million settlement). Without law firms, we will be lawless. I can’t judge Paul Weiss, Skadden Arps, Milbank and Willkie Farr for what can only be characterized as buckling, but I know the world is more complicated than that. I’ve never run a major law firm that has represented major clients or taken up globally consequential matters. If a firm goes under, what good is it? But I do know that a united front has a better chance than a fractured one and, in the long run, if the sun sets on our democracy, we will have little use for law firms as we know them. After all, united is kind of what we do in America, even if begrudgingly. It’s in our name and everything.

Chair Ferguson has also been vocal about what he sees as Big Tech’s censorship of conservative views and the Democrats’ “trans agenda,” although I will say with zero research that Republicans talk much more about this sliver of the population than any Democrat. Ferguson authored a chapter of The Heritage Foundation’s Project 2025, widely seen (although falsely disavowed during the election) as the roadmap for President Trump’s campaign to seize unprecedented power over the federal government and eliminate big parts of it.

Axes and Pain Killers

While there is evidence that today’s FTC will carry on its pro-markets mission in areas like healthcare, we can expect sharper attacks on Big Tech. That is, unless the “tech bro” CEOs succeed in getting along with the new administration. Bedoya shared with Kara Swisher that his last public statement as commissioner included criticism of Amazon CEO Jeff Bezos for working his people so hard that they had to install pain-killer dispensers in their warehouses. And, who is the new head of the Occupational Safety & Health Administration just appointed by President Trump? A former Amazon executive. You may take your pain-killer now.

The question today is whether efforts to rein in lopsided corporate power will be driven solely by numbers – e.g., the number of players in a market, market shares, price increases, new entrants – or, as the attack on law firms demonstrates, by axes to grind. The latter feels inevitable. Our president has enough axes to fill all the bathrooms and all the ballrooms at Mar-a-Lago. No need to order them from Amazon. They are DIY. And, to put a bow on this, what if one of the president’s least favorite law firms is working on a big merger? You know it is going to happen.

Article updated on 4/11/2025 at 5:30 p.m.

Tom Hagy is a business owner, legal writer, and podcaster living in the Chester County exurbs of Philadelphia. He has covered litigation and created products for litigators for four decades. He is founder of HB Litigation and Critical Legal Content. The thoughts express here are his own. After all, who in their right mind would want them?

April 9, 2025
AI tools may be the cause of the explosion in nuclear verdicts — and also the solution

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Interested in contributing an article? Email us at Editor@LitigationConferences.com.

AI tools may be the cause of the explosion in nuclear verdicts— and also the solution

By: Justin Ward

The rise of nuclear verdicts is being fueled by AI-driven case selection and strategy optimization—giving plaintiff attorneys a powerful edge while forcing insurers and defense teams to rethink their approach.

The popularization of artificial intelligence in the legal industry is a significant source of growth in unexpectedly large payouts known as “nuclear verdicts,” with plaintiff attorneys using software modeling to select cases and optimize their strategies. At the same time, insurance companies and corporate lawyers are also now turning to the same technology to mitigate risks and minimize losses.

According to a report by Allianz Commercial, the number of nuclear verdicts over $10 million has tripled since 2020 and the thermonuclear verdicts over $100 million grew by more than 30 percent over the previous year. Allianz attributes this to several causes, including the normalization of massive verdicts and the adoption of “psychological tactics” like “anchoring” unjustifiably high damage amounts in juries’ minds.

Another notable factor driving the rise in nuclear verdicts is the emergence and adoption of artificial intelligence by plaintiff attorneys in the past two years. Since the debut of ChatGPT in 2022, there has been an arms race in artificial intelligence and machine learning, as companies search for novel practical uses for the technology. Many law firms are already dipping their toes into artificial intelligence, using it to automate menial tasks and reduce non-attorney headcounts, but Thomson Reuters predicts “wide-scale business model changes” in the next decade.

We’re seeing a preview of what that transformation might look like in the proliferation of nuclear verdicts. In addition to using artificial intelligence and machine learning to streamline critical work like document review, law firms are adopting AI-based predictive analytics to decide which cases to take and whether to settle or go to court.

Writing for the American Bar Association, lawyers Ashley Hallene and Jeffrey Allen explained how this works. By leveraging big data assets, law firms can identify cases with the most potential for damages and find the most sympathetic jurisdiction. They noted that lawyers could use a high-powered predictive model to analyze the histories of judges and opposing lawyers dealing with similar cases and provide a probability that specific approaches might succeed.

“Algorithms can be applied to detect patterns in the data, such as how certain judges rule on specific types of cases or which arguments have historically succeeded in certain courts. Through this analysis, AI tools can predict the likely outcome of a case, considering factors like jurisdiction, judge behavior, precedent, and case specifics.

Lawyers on the other side are also using AI to insulate clients against nuclear verdicts. A new platform called NaVeL, short for “nuclear verdict exposure likelihood,” analyzes insurance or government claims data and flags cases with a high chance of going nuclear. The idea is that insurers can detect problem cases earlier and start preparing strategies to prevent the worst-case scenario.

The co-creators are Bob Tyson, a lawyer at a firm specializing in defending against nuclear verdicts, and his sister Denise, an insurance executive.

“Nuclear verdicts are happening to the most experienced and to the best defense lawyers in America, which is very concerning. What that means is that the old ways aren’t working,” Bob Tyson said.

Justin Ward is a Seattle-based investigative reporter specializing in politics, courts, and criminal justice. His work can be found in national and local media outlets, including USA Today, the Southern Poverty Law Center, and The Seattle Stranger. He can be reached at justinwardtexan@yahoo.com.

April 6, 2025
Supreme Court to Reconsider Separate Sovereignties

Emerging Litigation PodcastProduced by HB Litigation

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

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Supreme Court to Reconsider Separate Sovereignties

By Bret Thurman

The Supreme Court’s decision to reconsider the separate sovereignties exception in Barrett v. United States could redefine the balance of power between state and federal prosecutions—reshaping double jeopardy protections for generations to come.

Following a private conference in February 2025, the Supremes agreed to consider Barrett vs. United States, a Second Circuit case that tests the limits of the separate sovereignties exception to the Double Jeopardy clause.

The announcement that the court had granted review in Barrett v. United States came as part of a list of orders released from the justices’ private conference on Friday, Feb. 28. Dwayne Barrett was convicted of Hobbs Act robbery and related charges. In Barrett, the justices agreed to decide whether the Fifth Amendment’s ban on double jeopardy prohibits sentencing him for two different crimes based on the same robbery.

Double Jeopardy and Separate Sovereignties: A Primer

At least in the Western world, the Double Jeopardy clause has a rich history going back to ancient Greece. In 355 B.C., Athenian statesman Demosthenes pronounced that “the law forbids the same man to be tried twice on the same issue.” The Romans picked up the rule, as did the English in the Common Law period.

For some reason, the protection never caught on in the East, neither in ancient (Babylon and Sumeria) or more modern (Muslim) times.

Here in the Land of the Free and the Home of the Brave, New Hampshire’s 1784 constitution was the first document to guarantee this right. Several other states quickly followed suit.

In the 1790s, James Madison’s original double jeopardy clause stated that “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.” Some people objected, claiming that the broad language prohibited retrials after criminal appeals.

Madison, who cared a lot about the constitution but very little about double jeopardy, quickly bowed to this pressure and backed a modified, abstruse version (nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb). Ever since, courts have struggled to define exactly what this provision means.

The Supreme Court carved out the separate sovereignties (dual sovereignty) exception in 1847’s Fox vs. Ohio. That case involved the federal and state prosecution of a woman who was convicted of passing a fake silver dollar. According to prosecutors, Fox violated state fraud laws and abridged on the federal government’s exclusive right to coin money.

The Justices reasoned that states and the federal government are separate and distinct. Therefore, parallel state and federal prosecutions are different “offenses” under the double jeopardy clause, and the decisions of one government on what to prosecute or not prosecute are not binding upon the other.

The Court put an exclamation point on Fox some thirty years later. In 1847’s United States v. Cruikshank, et al., the late great Morrison Waite, who presided over the Court during a very difficult period in American history, rather poetically wrote that “The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws.”

When Can I Use a Double Jeopardy Argument?

The first situation is easy. Simply stated, defendants cannot be tried twice for the same crime, or a substantially similar crime.

Drug possession isn’t substantially similar to drug trafficking, even if the two originate from the same criminal episode. Trafficking has elements that possession doesn’t have. Similarly, conspiring to commit a crime is different from committing a crime.

After that, things get complicated.

Implied Acquittals

Lesser-included offense charges (e.g. first-degree murder and second-degree murder) are very common. For example, after a second-degree murder trial which resulted in a guilty verdict, a witness may come forward with information about the defendant’s premeditation.

The implied acquittal doctrine states that a person convicted on the lesser charge can never again be tried on the greater charge.

Non-Final Judgments

These “judgements” include most mistials, verdicts set aside after a motion for new trial, reversals due to procedural errors, and sometimes, involuntary dismissals.

Oddly, if the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion.

Prosecutors may also appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding verdict for the defendant. A successful appeal simply reinstates the jury’s verdict and therefore doesn’t place the defendant at risk of another trial.

Insufficient Evidence

We mentioned that procedural appeals don’t trigger the double jeopardy prohibition. However, if a court overturns a trial verdict for substantive reasons, specifically a lack of evidence, the state (or federal government) cannot retry the defendant.

The reasoning is simple. If the trial court ruled the evidence was insufficient, the double jeopardy clause would kick in. The appeals court substitutes for the trial court, in this case.

What about affirmative defenses, such as coercion, voluntary intoxication, statute of limitations, and entrapment? The law is uncertain on this point.

Fraud

A fraudulent trial is no trial at all. For example, in 1977, Chicago mobster Harry “Hook” Aleman the September 1972 death of William Logan. Nearly twenty years later, two persons in the Federal Witness Protection program confirmed that Aleman murdered Logan, and he then later bribed the trial judge to return an acquittal.

The Seventh Circuit ruled that Aleman was under no risk of conviction in the 1977 trial and upheld the sentence of 100 to 300 years in prison.

Risk is the key concept. If a defendant “fixes” a trial, the fix doesn’t necessarily guarantee an outcome. Even though the New England Patriots played with rigged equipment, they didn’t win all their home playoff games.

Multiple Punishments

Courts have the power to vacate or reduce sentences. They also have the power to augment sentences without running afoul of the Double Jeopardy clause. However, a court cannot revisit a case and impose the death penalty.

Insanity

This problem is interesting. Usually, a jury can decide that a defendant was “not guilty by reason of insanity” or “guilty but insane.” These two verdicts have vastly different meanings.

In 2012, Damien McElrath allegedly killed his mother and was charged with several offenses under Georgia law (malice murder, felony murder, and aggravated assault). On the malice murder charge, the jury returned a verdict of “not guilty by reason of insanity.” But on the other two, jurors ruled that McElrath was “guilty but mentally ill.”

The Supreme Court later agreed with McElrath that “NGBROI” was an acquittal that precluded his retrial on the malice murder charge.

So, if a client pleads guilty, pay very close attention to what s/he’s pleading guilty to. An arrangement with unsuspecting prosecutors may be in order.

Bret Thurman is a Dallas-based legal writer who practiced law in Texas for over twenty years. His writing focuses on criminal defense, family law, consumer bankruptcy, and personal injury. He obtained his B.A. in history from Baylor University and his J.D. from the University of Texas at Austin. Bret is also an award-winning screenwriter and father of four. He can be reached at Editor@LitigationConferences.com.

April 6, 2025