Amid criticism for deciding too many cases on its “shadow docket,” the Supreme Court nonetheless agreed to hear two lawsuits on Monday challenging Texas’s ban on abortions after six weeks. The Justices are generous to grant the plaintiffs expedited review, but neither legal challenge belongs in federal court.
Despite what you read in the press, abortion rights aren’t directly at issue in either case. The Court rejected Texas’s request to discuss the law’s merits on abortion. Instead, the Court will consider in Whole Woman’s...
The Supreme Court building in Washington.
Photo: J. Scott Applewhite/Associated Press
Amid criticism for deciding too many cases on its “shadow docket,” the Supreme Court nonetheless agreed to hear two lawsuits on Monday challenging Texas’s ban on abortions after six weeks. The Justices are generous to grant the plaintiffs expedited review, but neither legal challenge belongs in federal court.
Despite what you read in the press, abortion rights aren’t directly at issue in either case. The Court rejected Texas’s request to discuss the law’s merits on abortion. Instead, the Court will consider in Whole Woman’s Health v. Austin Reeve Jackson whether Texas can dodge federal court review by outsourcing enforcement to private parties. The question in U.S. v. Texas is whether the Justice Department can seek an injunction in federal court against the state.
The Texas law prohibits enforcement by state officials, instead authorizing private citizens to sue anyone who performs, aids or intends to perform or aid an abortion after a heartbeat is detected, which is usually around six weeks. Citizens who prevail are entitled to at least $10,000 in damages and legal fees.
The law in our view is clearly unconstitutional under the Court’s abortion precedents. But here’s the rub: Federal courts don’t have jurisdiction to hear the lawsuit by the abortion providers or the Justice Department. Full stop. Federal courts only decide cases and controversies between parties, and both plaintiffs lack legal standing to sue.
The Justice case is the easiest to dispense with. Justice says it sued because the law precludes pre-enforcement challenges by other plaintiffs. But the federal government hasn’t suffered a “concrete” and “particularized” injury—two requirements for standing. Justice says federal agencies that help arrange abortions could be harmed, but the federal government isn’t an abortion provider. In any case, federal officials have said in depositions that they are unaware of any harm or disruption to federal programs from the law.
Even if the Texas law is “unprecedented,” as Justice claims, the Constitution’s Supremacy Clause doesn’t grant the feds the freewheeling power to sue states whenever it believes they are abridging the constitutional rights of citizens. If that were the case, a GOP Justice Department could sue to enjoin Democratic state gun-control laws. Federal courts would then be dragged into arbitrating myriad political fights.
Justice also claims it can sue to vindicate the interests of the federal government under the “canonical precedent” In re Debs (1895). In that case, the U.S. sought a federal court injunction against the Pullman railroad strike, which was interfering with interstate commerce and mail delivery. The Texas law doesn’t interfere with U.S. sovereign powers or interests.
The problem for the abortion providers is that they have no one to sue. State officials aren’t enforcing the law, so the providers can’t sue them. The press is full of stories that the number of abortions has fallen in Texas since the law passed, but clinics can still perform abortions—albeit at the risk of a lawsuit.
But the minute a suit is filed, an abortion provider’s lawyer can move to dismiss on grounds that the law violates Roe v. Wade. Then there would be a proper case or controversy in state court. Texas courts could uphold the law, but such a decision by the state’s highest court would be reviewable by the U.S. Supreme Court.
Abortion providers say it could take months or years of litigation before the law is enjoined. But an immediate injunction is also possible given the threat to a constitutional right as long as the Supreme Court’s abortion precedents haven’t been overturned.
One mystery is why the Court agreed to take these cases. Five conservative Justices were criticized, including by their colleagues on the bench, for declining to enjoin the Texas law in September. Perhaps they want to elaborate beyond the language of that terse order so the public can better understand the legal principles at stake.
The Texas law will almost certainly be struck down in due course as long as Roe v. Wade remains the law of the land. But upholding the Supreme Court’s standing principles is also crucial to the rule of law, as Chief Justice John Roberts in particular has long held. In dismissing the importance of legal standing, progressives sound like Donald Trump when he derides the Court for refusing to hear his challenges to the 2020 election results. A bad Texas law doesn’t justify setting a bad judicial precedent.
Journal Editorial Report: Justice is way over the line with school parents. Image: Tom Brenner-Pool/Getty Images The Wall Street Journal Interactive Edition
WASHINGTON -- The Supreme Court is preparing to hear a gun rights case that could lead to more guns on the streets of New York and Los Angeles and threaten restrictions on guns in subways, airports, bars, churches, schools and other places where people gather.
The case the justices will hear Wednesday comes as gun violence has surged, and it could dramatically increase the number of people eligible to carry firearms as they go about their daily lives. The case centers on New York's restrictive gun permit law and whether challengers to the law have a right to carry a firearm in public for self-defense.
Gun control groups say if a high court ruling requires states to drop restrictions, the result will be more violence. Gun rights groups, meanwhile, say the risk of a confrontation is precisely why they have a right to be armed for self-defense.
Gun rights advocates hope that the court with a 6-3 conservative majority is poised to side with them. They want the court to say the New York law is too restrictive, as are similar laws in other states. Gun control advocates acknowledge the court’s composition has them concerned about the outcome.
“The stakes really could not be higher,” said Jonathan Lowy, chief counsel at the gun control group Brady.
The court last issued major gun rights decisions in 2008 and 2010. Those decisions established a nationwide right to keep a gun at home for self-defense. The question for the court now is whether there’s a similar Second Amendment right to carry a firearm in public.
The question isn’t an issue in most of the country, where gun owners have little difficulty legally carrying their weapons when they go out. But about half a dozen states, including populous California and several Eastern states, restrict the carrying of guns to those who can demonstrate a particular need for doing so. The justices could decide whether those laws, "may issue” laws, can stand.
The fact that the high court is hearing a gun rights case at all is a change after years in which it routinely turned them away. One gun case the justices did agree to hear ended anticlimactically in 2020 when the justices threw out the case.
But following the death of liberal Justice Ruth Bader Ginsburg last year and her replacement by conservative Justice Amy Coney Barrett, the court agreed to wade into the gun debate again.
Eric Tirschwell, the legal director at Everytown for Gun Safety, said there’s “reason to be concerned” for groups like his that “a type of law that the court was not interested in or willing to review in the past, they now are.”
The New York law the court is reviewing has been in place since 1913 and says that to carry a concealed handgun in public for self-defense, a person applying for a license has to demonstrate “proper cause,” an actual need to carry the weapon. When local officials issue a gun license, it’s either unrestricted — allowing the person to carry a gun anywhere not otherwise prohibited by law — or restricted, allowing the person to carry a gun in certain circumstances. That could include carrying a gun for hunting or target shooting, when traveling for work or when in backcountry areas.
The New York State Rifle & Pistol Association and two private citizens challenging the law have told the Supreme Court that it “makes it effectively impossible for an ordinary, law-abiding citizen to obtain a license to carry a handgun for self-defense.”
Lawyers for the group say the text of the Second Amendment, along with history and tradition, supports their argument that there’s a right to carry a gun outside the home. The group also says that New York’s law has discriminatory origins, that it was originally intended to give officials wide latitude to keep guns out of the hands of newly arrived immigrants from Europe, particularly Italians.
New York, for its part, denies that and says that the Second Amendment allows states to restrict the carrying of guns in public. It, too, points to history, tradition and the text of the Second Amendment. The state says its restrictions promote public safety, pointing to research that says that places that restrict the public carry of guns have lower rates of gun-related homicides and other violent crimes. New York says its law isn’t a flat ban on carrying guns but a more moderate restriction.
Tom King, president of the New York State Rifle & Pistol Association, said in an interview that part of the problem with New York’s law is that the chances a person will get an unrestricted permit depend on whether he or she is in a rural or more urban area of the state.
Both gun rights and gun control advocates say that it’s unclear how broadly the court might be willing to rule and that they will be closely watching arguments for clues, particularly from the court’s three newest members.
The three appointees of former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Barrett — are conservatives but were not on the court when the justices last issued major gun rights rulings. Their actions so far have given gun rights advocates reasons to be hopeful, however.
In 2011, as an appeals court judge, Kavanaugh argued in a dissent that the District of Columbia’s ban on semi-automatic rifles and its gun registration requirement were unconstitutional. Last year, he urged the court to take up another guns case soon, saying he was concerned that lower courts were not following Supreme Court precedent.
Gorsuch, for his part, would have decided the 2020 gun case his colleagues threw out. And Barrett, as an appeals court judge, wrote in a dissent that a conviction for a nonviolent felony shouldn’t automatically disqualify someone from owning a gun; she said her colleagues were treating the Second Amendment as a “second-class right.”
Gun control groups hope, however, that conservatives might still vote to uphold New York's law. A group of prominent conservatives, including former federal appeals court judge J. Michael Luttig, has urged the court to do so in a brief to the court. And earlier this year, in a 7-4 decision, judges on the 9th U.S. Circuit Court of Appeals rejected a challenge to Hawaii’s permit regulations. Conservative judge Jay Bybee wrote that a “review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square.”
The court’s three liberal justices are widely expected to side with New York.
Depending on what the justices ultimately say, other states’ laws could also be affected. The Biden administration, which is urging the justices to uphold New York’s law, says California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island all have similar laws. Connecticut and Delaware also have “may issue” laws, though they are somewhat different.
If the Supreme Court is to reverse course after refusing to block the law in September, at least one conservative justice must change positions. Justice Kavanaugh is the most likely candidate.
WASHINGTON — Exactly two months after the Supreme Court let Texas effectively outlaw most abortions in the state, it will hear a pair of arguments on Monday that could allow it to reverse course. Much of the attention will be on Justice Brett M. Kavanaugh.
The court’s call for what amounts to a do-over suggests that something is afoot among the justices, said Mary Ziegler, a law professor at Florida State University. “Someone who was not on the fence is probably back on the fence,” she said.
The vote the first time around was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.
If the outcome is to be different, at least one of the members of the conservative majority will have to switch sides. The most likely candidate, legal experts said, is Justice Kavanaugh, who has come to wield enormous power as the justice at the court’s ideological center, shares some of the chief justice’s concerns for protecting the institutional authority of the court and is sensitive to public opinion.
Over his Supreme Court career, which began in 2018 after a bruising and partisan confirmation fight, Justice Kavanaugh has been in the majority 87 percent of the time in divided decisions in argued cases, beating the career records of all justices appointed since 1937.
At his ceremonial swearing-in at the White House, after an introduction by President Donald J. Trump, Justice Kavanaugh made a point of saying that he was a fan of the chief justice. “Chief Justice Roberts is a principled, independent and inspiring leader for the American judiciary,” Justice Kavanaugh said.
He went on to vote with Chief Justice Roberts at a very high rate. In divided decisions in argued cases last term, for instance, the two men voted together 91 percent of the time, the highest rate of agreement among pairs of justices, one tied only by two members of the court’s liberal wing, Justices Stephen G. Breyer and Sonia Sotomayor.
All of this suggests that Justice Kavanaugh’s vote will be the crucial one in the two challenges to the Texas law to be argued on Monday, one from abortion providers and the other from the Biden administration.
“Kavanaugh is probably the most susceptible to changing positions, mostly because I see him as most closely aligned with the chief’s institutional-protection instincts,” said Michael C. Dorf, a law professor at Cornell. “But I don’t think he’s very susceptible.”
The very fact that the court agreed to hear the appeals to be argued Monday on an extraordinarily fast track is an indication that at least one member of the original majority may be in play, said Lawrence Baum, a political scientist at Ohio State.
“The recent surveys showing a decline in approval of the court among the general public seem to have made some justices more sensitive to how people outside the court are reacting to its decisions,” he said.
The Texas law bans abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. In a novel structure intended to insulate the law from federal court review, it bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
The patient may not be sued, but doctors, staff members at clinics, counselors and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it, and they are entitled to at least $10,000 and their legal fees if they win. Defendants who win their cases are not entitled to legal fees.
The Supreme Court’s earlier encounter with the case, culminating in an order issued just before midnight on Sept. 1, left the justices bitterly divided. In an unsigned opinion in that earlier case, the five-justice majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.
“The negative reactions to the Sept. 1 decision probably surprised some of the justices in the majority,” Professor Baum said, “so that one or more of them felt a need to dispel the perception that they were responding to challenges to the Texas law in a cavalier way that simply reflected their attitudes toward abortion.”
Where does that leave Justice Kavanaugh?
He is, for starters, the member of the court most likely to acknowledge the power of the other side’s argument.
“There are very strong interests on both sides here, which is what makes the case difficult, obviously,” he said last year at an argument over whether employers with religious objections could refuse to provide insurance coverage for contraception.
“There is religious liberty for the Little Sisters of the Poor and others,” he said, referring to an order of nuns that did not want to provide the coverage. “There is the interest in ensuring women’s access to health care and preventive services, which is also a critical interest.” (He later joined a majority opinion ruling in favor of the nuns.)
Justice Kavanaugh’s questions on Monday may give few hints about where he stands on the Texas law, much less on whether he is prepared to vote to overrule Roe v. Wade.Erin Schaff/The New York Times
Dissenting last year from a decision protecting L.G.B.T. workers from employment discrimination, Justice Kavanaugh said that result was required by the text of the relevant statute. “The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’” he said, quoting an opinion by Justice Anthony M. Kennedy, whom he replaced in 2018.
That last statement, Professor Ziegler said, was part of a pattern suggesting that Justice Kavanaugh is sensitive to how he is seen beyond the court.
“There’s an effort to distance himself from the politics of the ruling and to show that he is a sympathetic person and a good man,” she said.
“Kavanaugh does care about his own personal legacy, and he cares about how he’s perceived — and not just by others who are in the conservative legal movement,” she added.
That sometimes makes his fellow conservatives nervous, Professor Dorf said. “The way that the right constructs this is that it’s a kind of weakness or vanity,” he said. “The more sympathetic view is that he wants to be persuasive to a broad swath of informed opinion.”
Justice Kavanaugh had moved easily in elite circles before his confirmation hearings, during which he heatedly denied accusations of sexual misconduct.
Understand the Texas Abortion Law
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The most restrictive in the country.The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.
Citizens, not the state, will enforce the law.The laweffectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.
At his second hearing, after the accusations against him surfaced, he said Democratic senators had sent him into a kind of exile.
“I love teaching law, but thanks to what some of you on this side of the committee have unleashed, I may never be able to teach again,” he said.
That turned out to be only partly true. Justice Kavanaugh has not taught at Harvard since he joined the court (or at Georgetown or Yale, where he had also taught), but he has offered courses at George Mason University’s Antonin Scalia Law School, which has a conservative reputation.
Liberal activists protested outside Justice Kavanaugh’s home in suburban Washington in September, calling on him to support abortion rights. That move drew criticism from senators of both parties.
“Here’s the thing to understand about Kavanaugh: He wants to be liked and admired,” Ruth Marcus, the author of a book about the justice, wrote in The Washington Post. “Unlike some of his conservative colleagues, he enjoyed being part of, and respected by, the legal establishment.”
Justice Kavanaugh’s questions on Monday may give few hints about where he stands on the Texas law, much less on whether he is prepared to vote to overrule Roe v. Wade. Indeed, the arguments in the Texas case will probably address the fate of the constitutional right to abortion only in passing, if at all. The court will turn to that question in earnest on Dec. 1, when it will hear arguments in a case challenging Mississippi’s 15-week abortion ban.
In that case, the court has been asked to overrule Roe, the 1973 decision that ruled that the Constitution does not allow states to ban abortions before fetal viability, or around 23 or 24 weeks.
By contrast, the questions the court has agreed to decide in the Texas case are procedural ones about whether abortion providers and the federal government can sue to challenge a law written to evade review.
Over his Supreme Court career, which began in 2018, Justice Kavanaugh has been in the majority 87 percent of the time in divided decisions in argued cases.Stefani Reynolds for The New York Times
The court will provide live audio, as it now does in all arguments.
“It’s going to be bewildering to the average person,” said Professor Dorf, who filed a friend-of-the-court brief supporting the Justice Department. “The question that this case really poses is the hardest question in a federal-courts course, which is: When does a constitutional right entitle one to a judicial remedy and what kind of judicial remedy?”
Tara Leigh Grove, a law professor at the University of Alabama, said the questions before the court were weighty but technical. But she added that the larger issues in the case cast a shadow.
“Procedure is never just about procedure,” she said. “Jurisdiction is never just about jurisdiction.”
Professor Ziegler agreed, adding that the court’s earlier order in the Texas case was telling.
“As much as Texas’ law was ingenious and as much as there were actual real procedural hurdles there,” she said, “it just beggars belief that if there were another constitutional right at issue the court would have behaved in the same way. So it was definitely about Roe.”
(CNN)The South Pacific island nation of Tonga reported its first case of Covid-19 on Friday, spurring thousands of people to get vaccinated amid warnings of a national lockdown.
Tonga was one of only a few countries that had not reported a single Covid case since the start of the pandemic. But on Friday, Tonga's Prime Minister Pohiva Tu'i'onetoa confirmed its first positive case from a passenger who had traveled from New Zealand.
The infected traveler arrived in Tonga on Wednesday having flown from Christchurch, according to New Zealand's Health Ministry.
The passenger was fully vaccinated, had tested negative in New Zealand prior to the flight's departure, and was discovered among travelers staying at a hotel used for managed isolation and quarantine for new arrivals into the country.
Tu'i'onetoa said all airport staff who were in contact with any of the passengers on the flight have been quarantined and he warned Tongans to prepare for a potential national lockdown following the case, according to news website Matangi Tonga.
"We should use this time to get ready in case more people are confirmed they have the virus," he reportedly said.
Following the news of the positive case, thousands of people rushed to vaccination centers to get their Covid shots, Matangi Tonga reported.
Tonga's Minister of Health 'Amelia Tuʻipulotu said the high turnout over the past few days will boost the nation's vaccination coverage.
"More people are coming forward because now we have coverage of first dose of about 86% and a second dose of about 62%, so this is a major turnout today and will boost the overall coverage of first and fully vaccinated," Tuʻipulotu said, according to Matangi Tonga.
Tonga is a Polynesian country of more than 170 South Pacific islands and home to about 100,000 people. The archipelago lies about 800 kilometers (497 miles) east of Fiji and 2,380 kilometers (1,480 miles) from New Zealand.
Though it hasn't reported a Covid case until now, the island nation declared a state of emergency in March 2020 and shut its borders to foreign nationals.
Like other Pacific island nations, Tonga's early action protected it from Covid outbreaks that could have devastated the country, where 22.1% of the population live below the national poverty line and medical facilities and equipment are limited.
But the strict travel measures have severely impacted the economies of Pacific island nations, especially those that rely on tourism.
The Pacific nations of Tuvalu and Naura are among the only countries in the world not to have reported a Covid infection. Turkmenistan and North Korea have also not officially reported any cases, though experts say those claims are unlikely to be true.
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Case
The University of Florida denied three of its professors permission to testify in a voting rights case against the state, saying it was a "conflict of interest" and "adverse to UF's interests." Jeff Greenberg/Universal Images Group via Getty Images
Jeff Greenberg/Universal Images Group via Getty Images
Three University of Florida professors were denied permission from the school to testify in a major voting rights case against the state, documents filed in federal court show.
The plaintiffs in the case, which was filed in May, are a coalition of voting rights organizations that are suing Florida Secretary of State Laurel Lee. The groups argue that a new state law, which severely limits the ability to vote through a drop box or vote by mail in the state, discriminates against voters of color and violates the Voting Rights Act.
Gov. Ron DeSantis signed S.B. 90 into law in the first week of May.
As part of the testimony, the plaintiffs were seeking three professors from the university — Dan Smith, Michael McDonald and Sharon Austin — to testify as expert witnesses. All three specialize in voting rights and behavior and election law.
How the University of Florida responded
The documents filed Friday, though, reveal that the University of Florida denied all three professors permission to testify, saying it was a "conflict of interest" — marking a departure from normal procedure and bringing up a concerning limitation of free speech.
The professors' requests to appear as expert witnesses were filed through the university's conflict of interest office, which requires faculty to "report any outside activities and interests." Guidance from the university shows that serving as an expert witness is considered to receive "low scrutiny" and is "generally approved" as long as it is "not likely to adversely impact UF's interests."
Responding to McDonald and Austin's request to testify, the university said that "litigation against the state is adverse to UF's interests," according to the documents the plaintiffs filed Friday.
For Smith, the university said, "Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida."
The plaintiffs say that since DeSantis is the head of the state's executive branch, they intend to ask if the governor's office was involved in the university's decision.
The professors' attorney, Paul Donnelly, sent a letter to the university on Friday calling the school's decision "unacceptable."
"Faculty do not forfeit their First Amendment rights as citizens by accepting an offer of employment with UF," Donnelly wrote. "Professors Smith, McDonald, and Austin testify as expert witnesses in their fields on their own time. Their testimony does not interfere with any of their job duties. There are no conflicts of interest."
The professors' lawyer calls the decision chilling for free speech
In an interview with NPR, Donnelly said that "it's unprecedented in American history for a public institution to attempt a ban like this. ... It's chilling the exercise of free thought and speech."
The University of Florida released a statement on Saturday saying it has a "long track record" of supporting free speech.
"It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin," the school said in an email to NPR. "Rather, the university denied requests of these full-time employees to undertake outside paid work that is adverse to the university's interests as a state of Florida institution."
The university has strong ties to DeSantis. The chair of the board of trustees at the school, Mori Hosseini, is an adviser to DeSantis and a major Republican donor.
In recent years, New York-based attorney Spencer Sheehan has filed more than 400 lawsuits targeting products in almost every aisle of the grocery store over what he says are misleading claims on advertising and packaging. Spencer Sheehan
Spencer Sheehan
This week, it was strawberry Pop-Tarts — with a lawsuit claiming damages over what it calls "deceptive" marketing by Kellogg's of its pastries that contain just as much apple and pear as strawberry.
Before that, there were the fudge lawsuits, with claims against Keebler and Betty Crocker and others over "fudge" cookies and baking mixes that contained no milkfat.
And of course, the 120 or so vanilla lawsuits, each alleging that consumers have been duped by companies marketing "vanilla" products that contain little to no actual vanilla bean.
If the flavor on the label doesn't match the ingredient list, that may lead to a lawsuit. Andrew Burton/Getty Images
Andrew Burton/Getty Images
These suits and scores of others were all filed by the same lawyer, a New York-based plaintiffs' attorney named Spencer Sheehan. In recent years, Sheehan has filed more than 400 lawsuits targeting products in almost every aisle of the grocery store, all alleging that corporations are misleading consumers with claims on advertising and packaging that, Sheehan says, don't hold up to scrutiny.
His prolificacy has almost single-handedly caused a historic spike in the number of class action lawsuits against food and beverage companies — up more than 1000% since 2008 — in an effort that has vexed food companies and won respect from consumer advocacy groups.
"I guess I've always been the type who would become annoyed [and] never liked it when companies cheated people for small amounts it would be difficult to recoup," Sheehan told NPR this week.
He files about three lawsuits a week
The breadth and pace of Sheehan's efforts are remarkable: He filed suit against Frito-Lay alleging it didn't use enough real lime juice in its "hint of lime" Tostitos. He accused Coors of suggesting its pineapple-and-mango-flavored Vizzy Hard Seltzers are sources of Vitamin C "nutritionally-equivalent" to actual pineapples and mangos. He said Snack Pack pudding — which is advertised as being "made with real milk" — misled consumers because it is made with fat-free skim milk.
And that was just May 2021. Sheehan filed six other suits that month, and in the months since, he has filed at least 70 more, at a rate of about three per week.
He has become so well-known that everyday people now reach out to him with tips for possible lawsuits, he says.
How much lime is in a hint of lime? screenshot from court filing
screenshot from court filing
"Like when the police set up a tip line, 95% of the tips they're going to receive are garbage from people that don't have anything, but there may be a good one in there," he says. "I try to not overlook things that might have some value."
"I think there is some merit to his work," said Bonnie Patten, the executive director of Truth In Advertising, an organization dedicated to consumer education about deceptive marketing. "Sitting here today and seeing all the press that has been given to this issue, knowing that education is the best way to help consumers not be deceived – I think he's done an amazing job at spreading the word."
Though Sheehan has dabbled in other areas like T-shirts and bike helmets, the vast majority of his suits concern food and drinks.
This year could set a record for suits against food companies
Class action suits against food and beverage companies have spiked dramatically in recent years, rising from 19 in 2008 to more than 200 last year in spite of a pandemic-related dip in other areas of civil litigation, according to Perkins Coie, a law firm that tracks such cases and represents corporations in litigation.
2021 is on track to shatter that record, with more than 280 total suits filed to date, according to Tommy Tobin, a lawyer with the firm.
"We certainly know of Mr. Sheehan," said Tobin, who has represented companies in litigation brought by Sheehan, as have other lawyers at Perkins Coie. The firm has previously represented General Mills and Molson Coors — two companies currently facing lawsuits from Sheehan.
He really doesn't like false labeling of vanilla
Sheehan's most visible work is his series of lawsuits about vanilla, which have been covered by the Wall Street Journal and Business Insider. He has filed cases targeting vanilla products of all kinds — soda, soy milk, yogurt, ice cream — all of which use synthetic vanilla or other flavors alongside or in place of the more expensive natural vanilla. Perkins Coie says several dozen lawsuits focused on products that are marketed as vanilla in the past two years were overwhelmingly filed by Sheehan.
In the strawberry Pop-Tart case, the Kellogg Company, the maker of Pop-Tarts, has asked the judge to dismiss the case, citing several of Sheehan's other, unsuccessful suits.
"Kellogg's reference to one ingredient (strawberries) on the labeling of Frosted Strawberry Pop-Tarts does not plausibly suggest that strawberries are the only fruit in the product or imply that they are present in a greater amount than they are," the company's lawyers wrote.
The judge has not yet ruled on that motion. Lawyers representing Kellogg did not return a request for comment.
He says his goal isn't money. But these suits are lucrative
Sheehan says that his goal with the Pop-Tart case, and all his others, isn't money — but rather, he wants companies to market their products honestly.
"When something is regulated, there should be less space for [companies] to walk around and try to weasel around," Sheehan said. "Hopefully they fix their labeling [to] truthfully represent what's in the product."
However, winning or settling even a small percentage of cases can be lucrative.
Most of Sheehan's suits, including the strawberry Pop-Tart cases, allege damages based on the so-called "price premium theory," which says that products are sold at higher prices than they would have otherwise commanded had the companies marketed them honestly.
What does real milk on the label promise? screenshot from lawsuit
screenshot from lawsuit
He often claims at least $5 million in total damages to consumers nationwide.
While the total is high, the alleged damage to individuals is small — perhaps a dollar or even less for each product purchased — meaning any potential payouts to consumers would be tiny, Sheehan acknowledged.
"We have to accept, for better or worse, that yes, in these types of cases — the money that they get back is — they're not going to be able to retire," Sheehan said. "Sometimes people may get back $5, $10, $20."
By contrast, as the plaintiffs' attorney, Sheehan is able to take home a significant chunk of any winnings or settlement.
"Generally, the plaintiff's attorney will be taking home between 25 and 33%," said Patten of Truth In Advertising. "The vast majority of consumers will get absolutely nothing, and a very small percentage will get next to nothing."
Most cases are settled rather than go to trial
Dozens of Sheehan's cases have been "voluntarily dismissed" this year, meaning Sheehan requested the judge dismiss the case. Voluntary dismissal, experts agreed and Sheehan acknowledged, typically indicates a settlement.
Asked whether settlements suggest that Sheehan may be onto something with his claims, defense lawyer Tobin demurred.
"To whir up the machinery of a litigation department is expensive and time-consuming for the company," said Tobin. "For many cases, a nuisance kind of settlement might be advantageous compared to more extensive litigation costs."
If Sheehan's goal is truly to change company practice, Patten says, class action suits are not the most effective strategy — either judges dismiss the cases or companies reach settlement agreements.
"A lot of time with these class actions, they settle and put a lot of money into the pockets of plaintiffs' attorneys. And in the end, defendants get great settlement agreements that protect them from future deceptive marketing claims," she said.
When asked about his most successful case, Sheehan points not to any settlement, but instead to a case against the makers of A&W root beer.
In that case, Sheehan sued over the claim that A&W's root beer and cream soda are "made with aged vanilla." In fact, the sodas are made with a synthetic vanilla flavoring. (The company has since dropped the claim from its labels and cans, according to court documents.)
And, as of July, it is his first case in which the judge certified the class – an important step in any class action lawsuit that allows the suit to proceed to discovery, and potentially, a trial.
The criminal case against former state representative Aaron von Ehlinger is moving forward to District Court after Ada County Magistrate Judge Kira Dale found probable cause for two criminal charges against him.
Von Ehlinger faces two felony charges of rape and sexual assault.
The criminal complaint against him stems from allegations that the former Republican lawmaker had non-consensual oral sex with a 19-year-old legislative staffer in March, and that he pentrated her with his finger. He said the sex was consensual.
The state requested Friday afternoon’s preliminary hearing be closed to protect the privacy of the alleged victim, but the court denied that request.
The hearing took place at the Ada County Courthouse. In-person attendance was limited due to coronavirus restrictions, and the hearing was also live-streamed.
Prosecutors brought forward two witnesses Friday. Anne Wardle is a sexual assault forensic exam nurse with the Faces of Hope Victim Center in Boise. She examined the alleged sexual assault victim, Jane Doe. Wardle detailed what Doe told her about the alleged assault and what she learned when she did an exam of Doe.
She said Doe complained of pain on one of her arms where von Ehlinger allegedly placed one of his knees, and that she had tenderness on the back of her head from hitting the headboard when she tried to pull away. Wardle also took swabs on different parts of the alleged victim’s body, including her stomach where von Ehlinger allegedly ejaculated. The results from that swab were confirmed to most likely match von Ehlinger’s DNA, the prosecutors said.
The second witness, Monte Iverson, is a detective with the Boise Police Department. He testified that von Ehlinger’s lawyer at the time confirmed von Ehlinger participated in sexual acts with the alleged victim, though von Ehlinger said it was consensual.
Von Ehlinger will be arraigned in District Court on November 8.
Since the last update on Friday, October 22nd, there have been 9 new confirmed or probable cases in San Juan County. The current case count is now 353. Of these 9 new cases, initial investigations indicate that 3 appear to have occurred in fully vaccinated individuals. There are approximately 41 unvaccinated close contacts of positive cases currently in quarantine in the islands.
There is 1 new case on Lopez Island since the last update. There is one positive case under active monitoring on Lopez Island. There are 6 new cases on Orcas Island since the last update. There are 12 positive cases under active monitoring on Orcas Island. There are 2 new cases on San Juan Island since the last update. There are 2 positive cases under active monitoring on San Juan Island. Cases continue to persist in the islands. While initial transmission is often through unvaccinated children or adults, the disease spreads quickly through family groups, even if some members of the family are vaccinated. There have been several islanders lately who have been hospitalized due to their COVID symptoms. While most people experience symptoms that are not severe, remember that COVID is a serious illness for some people.
Final approval has been given for Moderna and Johnson & Johnson boosters. Those who are eligible for boosters may sign up for upcoming clinics (happening the week of Nov. 15) at the County COVID Vaccine Page.
(Bloomberg) — The Albany County sheriff said he has a “solid case” against former New York governor Andrew Cuomo, who was charged with a misdemeanor sex crime two months after resigning from office.
“We have an overwhelming amount of evidence,” Sheriff Craig Apple said at a press conference on Friday. Apple said his office had conducted a “methodical” investigation over almost four months, including search warrants, data collection, numerous witness interviews and the review of thousands of documents.
Cuomo was charged Thursday by the sheriff’s office with forcible touching or placing his hand under an unidentified woman’s blouse and groping her in the governor’s mansion on Dec. 7. He has been ordered to appear in Albany City Court on Nov. 17.
Cuomo resigned in August after Attorney General Letitia James released a report detailing a pattern of alleged harassment against female state employees and other women. Several local district attorneys, including Albany District Attorney David Soares, said at the time they would launch criminal investigations.
‘Specious’ Claims
Representatives of Cuomo have sharply criticized the sheriff for failing to coordinate the criminal complaint with Soares, who said on Thursday he was “surprised” by the filing.
“What Sheriff Apple did not say today is that the allegation is totally uncorroborated, and has been evolving since March,” Cuomo’s lawyer Rita Glavin said in a statement Friday. “What Sheriff Apple did say about doing a ‘separate’ investigation from the DA, with ‘our victim,’ speaks volumes about his professed objectivity.”
Glavin said Cuomo never assaulted anyone and that the filing of the charge, the day before James announced her candidacy for governor, suggested “the heavy hand of politics.” She said Cuomo would “challenge every aspect of the specious, inconsistent and uncorroborated allegations made against him.”
Read More: New York AG Letitia James Announces She’ll Run for Governor
James has defended her investigation.
“From the moment my office received the referral to investigate allegations that former Governor Andrew Cuomo sexually harassed multiple women, we proceeded without fear or favor,” she said in a statement Thursday. “The criminal charges brought today against Mr. Cuomo for forcible touching further validate the findings in our report.”
‘Apolitical Organization’
Apple said at the press conference that a document summarizing the evidence against Cuomo that his office had sent to Albany City Court for review was leaked. Otherwise, he said, he would have discussed the matter with Soares before proceeding and notified Glavin.
The sheriff said he would probably meet with the DA’s office next week to turn the case over and was confident Soares would move ahead with the prosecution. He said the confusion caused by the leak didn’t reflect the quality of the case.
“We knew everybody would be watching this investigation,” Apple said. “We try, every single investigation, to conduct it the same way, and our primary goal is to protect the people and protect the victims and complainants.” He said the sheriff’s office is “an apolitical organization.”
Soares’s office didn’t immediately respond to a request for comment Friday afternoon.
Ignominious End
James’s report brought to an ignominious end Cuomo’s decades-long political career, only months after it had arguably reached its zenith. Widely praised for his daily press conferences in the early months of the pandemic, Cuomo was considered a possible future Democratic presidential contender.
But James’s investigation found that he had violated multiple federal and state harassment laws based on allegations from accusers who said Cuomo had engaged in unsolicited hugs, kisses and touches and made inquiries about their sex lives. He allegedly even asked one woman to play strip poker while on a government plane.
Cuomo has admitted being “too familiar” with people but has denied sexually harassing or groping anyone. Calling James’s report biased and politically motivated, Glavin earlier this month asked for a new investigation into his conduct.
By resigning, Cuomo avoided what was expected to be lengthy impeachment proceedings in the state assembly, which said there were constitutional barriers to impeaching a governor who was no longer in office.
For Cuomo, that also meant he was legally able to run for office again, and some have suggested he may seek a political comeback. But if he’s convicted of a felony or misdemeanor, he would be barred from holding public office in New York, according to the New York State Unified Court System website.
At his court appearance next month, Cuomo will be processed and likely released, Apple said.
The case is People v. Cuomo, Albany City Court (Albany, New York).
(Updates with further details from press conference in third section.)
More stories like this are available on bloomberg.com
New documents filed in the federal case against Nebraska Congressman Jeff Fortenberry will keep certain information restricted under a protective order.
The acting United States attorney filed the protective order in the congressman's federal case Wednesday. It shields certain information that could identify informants or witnesses involved with Fortenberry's indictment. The Republican representative was charged October 19 for allegedly lying about illegal campaign contributions from a foreign national.
In the document, the US attorney stated the order was necessary to protect sensitive information involved in other investigations related to public officials.
A statement from Fortenberry's attorney, John Littrell, said this isn't unusual given the case's circumstances.
"This is not an unusual step at all. The prosecution proposes an order like this in any case involving the use of confidential informants. The protective order does not limit the Congressman's access to information, and it will not inhibit our ability to defend this case," Littrell said.
The public may not hear more about the evidence and accusations against Fortenberry until the case goes to trial, which is scheduled for December 14.
In a video published in October, Fortenberry said he was shocked by the indictment and will fight the charges.
According to a lawsuit filed in May by a former Chicago Blackhawks player -- Kyle Beach, who came forward this week as "John Doe" from the suit -- former video coach Brad Aldrich sexually assaulted him and another player during the 2010 Stanley Cup playoff run.
In June, the Blackhawks commissioned an independent law firm, Jenner & Block, to conduct a thorough investigation. That investigation was led by Reid Schar, a former assistant U.S. attorney, and the results were handed over to the Blackhawks organization on Monday.
In the time since the release of the report, key personnel involved with the team in 2010 -- whether still in Chicago or elsewhere -- have resigned or otherwise been relieved of their duties. Here is where things stand now, as well as what could be coming next.
What are some of the main findings from the report released this week?
According to the report, on May 8 or 9 in 2010, John Doe -- who Beach has since revealed to be himself -- had a sexual encounter with Aldrich. Both men confirmed to investigators that an encounter happened; Beach said it was not consensual, while Aldrich said it was.
The report says that days later, then-senior director of hockey operations Al MacIsaac was told there might have been a sexual encounter between the coach and player, and separately that Aldrich might have sent an explicit text message to another player. On May 23, 2010, a group in Blackhawks leadership -- including then-president John McDonough, MacIsaac, general manager Stan Bowman, executive VP Jay Blunk, assistant GM Kevin Cheveldayoff, head coach Joel Quenneville and mental skills coach James Gary -- met to discuss what happened. There were varying accounts of what was said in that meeting. However, no action was taken against Aldrich directly after that meeting. He stayed with the Blackhawks through their Stanley Cup celebrations, and was even given a day to celebrate with the trophy.
The report also says Aldrich made a sexual advance to a 22-year-old Blackhawks intern -- after the organization was made aware of the initial allegations.
Several details in the findings implicate individuals from Blackhawks leadership in 2010. Bowman recalled that after learning of the incident, "Quenneville shook his head and said that it was hard for the team to get to where they were, and they could not deal with this issue now." The report also says that numerous Blackhawks players and staff members knew of the allegations but did not act. Additionally, some teammates reportedly teased Beach about the allegations and used anti-gay slurs.
According to the investigation, the Blackhawks' director of human resources met with Aldrich on June 16 and gave him the option to undergo an investigation or resign. Aldrich chose to resign, and no investigation was conducted. -- Emily Kaplan
In a statement earlier this week, Bowman said he resigned because he didn't want to become a distraction as the team focuses on the future. Over the last several months, according to sources, Bowman was convinced that he would survive this scandal, and believed that the culpable party was then-president and CEO McDonough, who allegedly told Blackhawks leaders that he would handle the allegations.
The Blackhawks were alerted that the Jenner & Block investigative findings were available last weekend, and as recently as Monday -- the day before they were publicly released -- Bowman thought he could remain in his role, according to sources. Bowman, the son of legendary coach Scotty Bowman, has been with the Blackhawks since 2001. He recently completed building a new condo close to the United Center, a sign that he thought he still had a long-term future with the franchise. However, once Blackhawks ownership digested the report, it became apparent to them that Bowman needed to step down. Bowman discussed his actions in a statement released through the team.
"Eleven years ago, while serving in my first year as general manager, I was made aware of potential inappropriate behavior by a then-video coach involving a player," Bowman said in the statement. "I promptly reported the matter to the then-president and CEO who committed to handling the matter. I learned this year that the inappropriate behavior involved a serious allegation of sexual assault. I relied on the direction of my superior that he would take appropriate action. Looking back, now knowing he did not handle the matter promptly, I regret assuming he would do so. I am confident that this organization and the Wirtz family will continue to do what it takes to win championships, with integrity and with the goal of doing what is right."
The circumstances of MacIsaac's ouster are less clear, but it appears that he was forced to resign as well. The team's current front office is clear of anyone who was working there in 2010. -- Emily Kaplan
How did the NHL determine the $2 million fine for the Blackhawks?
Through a news release by the league, NHL commissioner Gary Bettman said the $2 million fine "represents a direct and necessary response to the failure of the [Blackhawks] to follow-up and address the 2010 incident in a timely and appropriate manner. And, this response should send a clear message to all NHL Clubs and all NHL personnel that inappropriate acts must be addressed in a timely fashion."
Half of the fine will be allocated toward organizations in and around the Chicago community "that provide counseling and training for, and support and assistance to, survivors of sexual and other forms of abuse." -- Kristen Shilton
When did the Blackhawks' owners find out about the allegations?
In a news conference last week, owner Rocky Wirtz -- and his son, Danny, the team's CEO -- said they were only made aware of the allegations when "John Doe" filed the lawsuit against the team this May. Nothing in the Jenner & Block report would suggest otherwise.
Rocky Wirtz has been the principal owner of the Blackhawks since 2007, taking over after the death of his father, Bill. Danny, meanwhile, has been in an official capacity with the team since 2020, when he took over as CEO. However, Danny has been an "active adviser" to the Blackhawks over the past decade. -- Emily Kaplan
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Former Blackhawks draft pick Kyle Beach emotionally reflects on his alleged sexual assault by former video coach Brad Aldrich.
What's the latest on the Blackhawks' GM job?
Kyle Davidson is serving as interim general manager. Davidson, 33, had been viewed as a rising star in the Blackhawks organization before the scandal broke. He has worked with Chicago for the past 11 years and was promoted to assistant GM in 2018. Over the past five to six years, Davidson has been involved in every key personnel decision the Blackhawks have made. According to sources in Chicago, Davidson has the full support of the organization and will be considered for the full-time position.
The Blackhawks intend to lead a search for external candidates, but there's no urgency on ownership's end. There is also a chance that the Blackhawks look for two candidates: a general manager and a president of hockey operations (Bowman held both titles at the time of his resignation). Danny Wirtz will oversee the search, and Jamie Faulkner -- who replaced McDonough as team president -- is expected to be involved as well. -- Emily Kaplan
Will the Blackhawks split their front-office jobs?
There's a sense around the league that the team would like to split the two titles Bowman held because there's so much triage to be done for the organization on and off the ice. The president of hockey operations role could be a front-facing one, filled by an individual with name recognition who carries the kind of respect necessary to help facilitate an image change. Former Blackhawks player and current Turner Sports analyst Eddie Olczyk -- a popular individual in Chicago -- was an early name linked to that job. Other potential candidates include ESPN insider Kevin Weekes, Anaheim Ducks GM Bob Murray, and Jim Rutherford, who won Stanley Cups as a top executive of the Carolina Hurricanes and Pittsburgh Penguins.
Rutherford, 72, has filled both roles in the past, like Bowman did with the Blackhawks. If hired in a similar capacity, it would be in the short term: Sources close to Rutherford said his preference is to work as a president of hockey operations rather than day-to-day GM. But if he were to serve as general manager briefly, expect a similar setup to what he originally had in Pittsburgh, where Rutherford oversaw potential replacements (until he decided to keep the gig himself). Davidson could be one of the replacement candidates. Another interesting name: Patrick Burke, currently with the NHL Department of Player Safety, who has a background both in player personnel and in the kind of hockey culture changing that will be necessary in Chicago.
Don't discount the potential of one person taking both roles; one NHL source said it could be a matter of finances. The Blackhawks undoubtedly will still need to compensate Bowman after he stepped aside. Paying a president of hockey operations and a general manager, after losing money for the last year, might not be their aim. If Chicago does split the roles, expect names such as former New York Rangers GM Jeff Gorton, St. Louis Blues VP of hockey operations Peter Chiarelli and former Vancouver Canucks GM Mike Gillis to be in the mix. -- Greg Wyshynski
What's the latest on Joel Quenneville?
After meeting with Bettman on Thursday, Quenneville announced his resignation as head coach of the Florida Panthers. Quenneville was in his third season behind the bench in Florida, and had led the Panthers to a 7-0-0 start to the season. In resigning, Quenneville left two years and more than $15 million remaining on his contract.
"I want to express my sorrow for the pain this young man, Kyle Beach, has suffered," Quenneville said in a statement. "My former team, the Blackhawks, failed Kyle and I own my share of that. I want to reflect on how all of this happened and take the time to educate myself on ensuring hockey spaces are safe for everyone."
Bettman acknowledged that "all parties" agreed it was no longer appropriate for Quenneville to remain coaching once word of his involvement in the scandal came to light. Further to that, Bettman said no further action would be taken against Quenneville now, but that if Quenneville does look to get back into coaching down the road, Bettman "would require a meeting with him in advance to determine the appropriate conditions under which such new employment might take place." -- Kristen Shilton
What about Kevin Cheveldayoff?
Currently the GM of the Winnipeg Jets, Cheveldayoff met with Bettman on Friday and the commissioner decided that he would not be disciplined because he was not responsible for improper decisions made in 2010.
The league released a statement saying it has "concluded that Cheveldayoff was not responsible for the improper decisions made by the Chicago Blackhawks related to the Brad Aldrich matter in 2010, which decisions resulted in the Club's delayed and inadequate response to a report of serious, inappropriate conduct as between Aldrich and Blackhawks' prospect, Kyle Beach."
In his then-role as assistant GM for the Blackhawks, Cheveldayoff was present for the meeting on May 23, 2010 with Bowman, Quenneville, McDonough, MacIsaac and Blunk. The Jenner & Boone investigation found that, while witness interviews were inconsistent about what was said specifically, details of Beach's allegations against Aldrich were shared with everyone present. From there, no action was taken against Aldrich.
This July, Cheveldayoff released a statement saying he had "no knowledge of any allegations" against Aldrich, contrary to what the investigation concluded. Cheveldayoff said he wasn't made aware of the situation until being asked about it toward the end of his two-season tenure with Chicago.
Cheveldayoff released a statement Friday expressing support for Beach.
"He was incredibly brave coming forward to tell his story," Cheveldayoff said of Beach. "We can all use his courage as an inspiration to do a better job of making hockey a safer space for anyone who wants to play the game." -- Kristen Shilton
What has Kyle Beach said after coming forward as "John Doe" from the lawsuit?
Beach released a statement on his Twitter account (@KBeachy12) Thursday night, thanking well-wishers for their support and reflecting briefly on his case becoming public:
"I have immense gratitude for the outpouring of endless love and support that has come through within the past 48 hours," Beach's statement read. "Although the results of the private investigation have been released, and the Blackhawks have apologized, my battle is really just beginning as the Blackhawks continue to attempt to destroy my case in court. While I take this time to reflect and continue the healing process, it is a reminder that this is not about me as an individual. This is to promote open communication that will facilitate change for the future -- to promote safety, as well as the health and well-being of society as a whole. Thank you." -- Kristen Shilton
Beyond the Blackhawks, what is the NHL doing at a leaguewide level?
After Beach's interview aired on TSN, the NHL sent out a leaguewide memo Wednesday night titled "Fostering a Safe and Inclusive Culture."
The document stated that anyone associated with the NHL is "required to immediately report" any conduct that is "clearly inappropriate, unlawful or demonstrably abusive" directly to Bettman and deputy NHL commissioner Bill Daly.
One day prior to the memo going out, the NHL disclosed it had set up a confidential and anonymous hotline for league personnel to share any misconduct they encounter. -- Kristen Shilton
