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The District of Columbia federal district court just ruled that the AT&T merger with Time Warner can move forward. The deal had been on hold for nearly a year and a half, and the massive ruling explicitly stated that if the government sought to stay the ruling pending appeal, the court would deny that motion.

While this merger has been a lightning rod for controversy since being announced in 2016, it seems that all the hoopla was for naught. The district court's opinion placed no conditions on the merger, unlike prior mergers between exclusive content license holders and media networks.

D.C. Cir. Affirms, Reverses in APA 'Assessment Fee' Case

The American Psychological Association (APA) is a nonprofit organization, so it can't use membership dues for lobbying. That's why the APA established a subsidiary, the APA Practice Organization (APAPO), to engage in the lobbying that the APA can't. Of course, the APA still can't shuttle any part of its membership dues into the APAPO, so it came up with a new tactic: including a line item for a separate "special assessment fee" in its members' dues statements. You can see where this is going: The special assessment fee doesn't go to the APA; instead, it goes to the APAPO.

APA members discovered that they actually couldn't be required to pay this special fee, even though their dues statements never said they didn't have to pay it. Several members sued under unjust enrichment and false advertising. The district court granted the APA's motions to dismiss. This appeal to the D.C. Circuit followed.

Plaintiff-appellant Larry Klayman found a page on Facebook three years ago entitled "Third Palestinian Intifada." The page "called for Muslims to rise up and kill the Jewish people." Klayman contacted Facebook to remove the page, which it subsequently did, but apparently not quickly enough, reports Business Insurance.

Klayman sued Facebook and Mark Zuckerberg (collectively "Facebook") for intentional assault and negligent breach of a duty of care that allegedly, Facebook owed Klayman.

Want to spend more time practicing, and less time advertising? Leave the marketing to the experts.

Charter School Managers Pocketed Millions in Scam: Lawsuit

Managers for the Options Public Charter School are accused of diverting millions of dollars in government funds toward their own businesses, and the District of Columbia is suing them for it.

According to The Washington Post, the Options school was intended to serve "the District's most troubled teens and students with disabilities," but at least $3 million earmarked for the school were allegedly siphoned away by sophisticated contracting scam.

The District's complaint claims these school managers funneled state money into their own private contracting businesses and much more.

Polar Bear Trophy Ban not Unbearable: D.C. Cir.

Polar bear trophies are still verboten after an opinion by the D.C. Circuit this past Tuesday upheld a federal Fish and Wildlife Service ban on importing items like polar bear rugs.

This opinion comes on the heels of the D.C. Circuit's ruling in March which upheld a 2008 decision to keep polar bears as a "threatened" species under the U.S. Endangered Species Act, reports Natural Resources Defense Council.

If you promised your spouse a new pair of real polar bear slippers after a trip to Canada, you may want to reconsider.

Court Rules in Favor of Exxon Mobil, Against Franchisee

The U.S. Court of Appeals for the D.C. Circuit affirmed the District Court’s ruling in favor of Exxon Mobil Corporation, in a suit brought by one if its former franchisees.

Metroil was a gas station franchisee and operated a gas station located next to the Watergate in Washington D.C. The gas station was owned by Exxon and in 2009, the company sold the station to Anacostia, a gasoline distributor. Metroil continued to operate the station.

No Protection for Trojan Condom Maker From FTC Probe

In the eyes of the law, size does matter.

The D.C. Circuit Court of Appeals ruled in favor of the Federal Trade Commission on Tuesday, holding that the agency's subpoena and civil investigative demands of Trojan brand condom maker Church & Dwight Co. were appropriate.

The large subpoena suit is part of a long-running dispute with federal trade regulators regarding the company's possible monopolistic tactics in the condom market.

The company argued that the scope of the FTC probe was just too broad.

In US v. Baugham, No. 07-3145, the court of appeals affirmed defendant's sentence for various federal drug and conspiracy offenses, on the grounds that 1) defendant never asserted that a misstated name in the information caused him any hardship or confusion; 2) while the district court erred in neglecting the 18 U.S.C. section 851(b) colloquy, the error was harmless; and 3) the district court's reasoning did not exhibit vindictiveness.

Menominee Indian Tribe v. US, No. 09-5005, concerned a breach-of-contract action by a government contractor.  The court of appeals reversed the district court's dismissal of the action, on the grounds that 1) the limitations period in 41 U.S.C. section 605(a) was subject to equitable tolling in appropriate cases; and 2) the district court incorrectly calculated the length of the tribe's delay in filing suit.

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Also, Decisions in Administrative, Contract, Copyright, and Employment Matters

US Ex Rel. Miller v. Bill Harbert Int'l. Const., Inc., 08-5390, involved a False Claims Act (FCA) action claiming that five companies and one individual rigged the bidding on three contracts in Egypt funded by the U.S. Agency for International Development.  The court of appeals affirmed judgment for plaintiff in part, holding that 1) the government's claims concerning one contract were not barred by the statute of limitations because they related back to plaintiff's original timely complaint; 2) although the false claims provisions of the Foreign Assistance Act and the FCA did overlap, the two statutes were fully capable of coexisting.  However, the court reversed in part, holding that 1) certain of plaintiff's claims were barred by the statute of limitations because he added them after the limitation period had run; and 2) allowing the government to contradict a factual stipulation called into question the credibility of defendant's counsel, severely impeding counsel's ability to effectively advocate for his client.

Recording Indus. Assn. of Am. v. Library of Cong., No. 09-1075, involved a petition for review of the Copyright Royalty Board's decision instituting a 1.5 percent per month late fee for late royalty payments, and implementing a pennyrate royalty structure for cell phone ringtones, under which copyright owners received 24 cents for every ringtone sold using their copyrighted work.  The D.C. Circuit denied the petition, on the grounds that 1) the Board appropriately took market evidence into account when imposing a late fee; 2) a copyright owner's ability to terminate a section 115 license in no way barred the imposition of a late fee; and 3) even if it were true that divided interests in a copyright made it difficult to make timely payments to each copyright owner, that fact would in no way counsel against the imposition of a late fee.

Armstrong v. Geithner, No. 09-5172, concerned an action alleging that Department of the Treasury employees violated the Privacy Act, 5 U.S.C. section 552a, by disclosing the details of an investigation into plaintiff's conduct.  The court of appeals affirmed summary judgment for defendants, on the ground that plaintiff failed to establish that the information disclosed had been retrieved from a record held in a system of records, as required in an action for damages under the Privacy Act.

Schaefer v. McHugh, No. 09-5187, involved an action arguing that the Army Correction Board's decision rescinding plaintiff's discharge from the Army was arbitrary, capricious, and contrary to law.  The court of appeals affirmed summary judgment for defendant, holding that 1) the Board reasonably concluded that plaintiff was not lawfully discharged from the Army on September 14, 2001; 2) plaintiff failed to show that he suffered any prejudice from the Army's alleged error regarding which entity could technically revoke the authorization for his discharge; and 3) Article 3(b) applied only to individuals who were actually "discharged from the armed forces" and then returned to the military to face court-martial.

Gonzalez v. Dept. of Labor, No. 09-5195, involved an action challenging the Department of Labor's decision that plaintiff was required to pay the Department a share of the proceeds from a personal injury action.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the settlement agreement clearly showed that the parties' mutual intent was to have both spouses release their respective claims against defendants; 2) it was for Labor to determine how much of plaintiffs' settlement proceeds should be allocated to plaintiff's loss of consortium claim; and 3) plaintiffs offered insufficient evidence to substantiate their claim for costs.

RLI Ins. Co. v. All Star Transp., Inc., No. 09-7027, concerned an interpleader action by an insurance company to determine its obligations to pay truckers hired by its bankrupt insured under a surety bond.  The court of appeals affirmed summary judgment for defendant, on the ground that Form BMC 84, which governed such bonds, plainly stated that the face value of the bond was the sum of $10,000.

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Florida Gas Transmission Co. v. FERC, No. 07-1533, involved petitions for review of the Federal Energy Regulatory Commission's (FERC) orders establishing new gas quality and interchangeability standards for Florida Gas's interstate natural gas pipeline system.  The D.C. Circuit granted one such petition, holding that 1) the Commission had no authority under section 5 of the Natural Gas Act to impose the new standards on gas flowing from the Western Division into the Market Area; and 2) the Commission failed to identify any mechanism through which Florida Gas (or any other pipeline) could maintain a compliant commingled stream without controlling the quality of upstream deliveries.  However, the court denied another petition, holding that, even assuming FERC had jurisdiction to establish a cost-recovery mechanism, it provided an adequate alternate rationale for refusing to establish any cost-recovery mechanism.

Athridge v. Aetna Cas. & Sur. Co., No. 08-7145, concerned an action against an insurer to collect a judgment entered against the insured responsible for an accident.  The D.C. Circuit affirmed judgment for defendant, on the grounds that 1) under District of Columbia law, an insurer may be estopped from denying coverage only if its participation somehow prejudiced the insured by undermining his ability to defend himself; 2) defendant's policy did not require the payment of interest on a judgment for which defendant had been adjudged to have no liability; 3) under District of Columbia law, issue preclusion did not apply where issues were only similar, but not identical, or where the determination of an issue was "dictum" and not "essential to the judgment"; and 4) there was no abuse of discretion in the magistrate judge's bifurcation of the case.

Coalition of Battery Recyclers Assoc. v. EPA, No. 09-1011, involved a petition for review of the EPA's revision of air quality criteria and national ambient air quality standards (NAAQS) relating to lead.  The court of appeals denied the petition, holding that 1) given the recent scientific evidence on which it relied, EPA's decision to base the revised lead NAAQS on protecting the subset of children likely to be exposed to airborne lead at the level of the standard was not arbitrary or capricious; 2) EPA reasonably explained why it relied more on the evidence-based framework than on the risk assessment model results; and 3) petitioners failed to show that EPA's conclusions regarding the lead NAAQS level were valid only for exposures to lead averaged over a period of one year.

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