The National Law Journal

Automakers reached a record-high average for fuel economy in their 2023 model year but only BMW and Mercedes achieved the fuel economy standard the Biden administration set in 2021, the U.S. Environmental Protection Agency stated this week in its annual automotive trends report. The average fuel economy of new vehicles increased 1.1 miles per gallon to an average of 27.1 mpg, the EPA found. But BMW and Mercedes were alone among large manufacturers in reaching the 6.5% year-to-year improvement in fuel economy for 2023 model cars that President Joe Biden's EPA set. Auto companies, “despite having ample time, ample money, and relatively light regulatory duties, still fail to follow the law,” said Dan Becker of the Center for Biological Diversity. The manufacturers with the best fuel economy and least polluting were electric-car maker Tesla (120.6 mpg), Kia (30.4 mpg) and Hyundai (29.8 mpg), according to the EPA. Those with the worst fuel economy and the most polluting were Stellantis (21.8 mpg), General Motors (22.4 mpg) and Ford (23.2 mpg), the EPA added. Auto makers that fail to meet emissions standards can use carbon credits. Credits can be earned by having carbon-saving features on cars, Becker said. 𝗙𝘂𝗹𝗹 𝘀𝘁𝗼𝗿𝘆: https://lnkd.in/e_-45kua

In picking Linda McMahon as the possible next head of the Department of Education, President-elect Donald Trump appears intent on making good on his promise to dismantle the federal agency. However, according to several litigators with active education practices, unraveling the DOE will be much easier said than done. But regardless of whether Trump is ultimately successful in taking down the agency, litigators see challenges on the horizon for a number of education-related issues, including how funding and enforcement of education policies will play out. Kayleigh Baker, an attorney and senior consultant with TNG Consulting and a member of the Advisory Board for the Association of Title IX Administrators, told Law.com that the Trump Administration and some Republican lawmakers have vocalized their desire to dismantle the DOE. However, she said, this does not guarantee that they will have the votes of the 60 U.S. senators required to abolish the department. “It is more likely that the Trump administration will find ways to strategically de-emphasize the role of the Department of Education, and this could include shifting enforcement to other federal departments,” Baker said. “For example, they may shift enforcement of Title IX to the Department of Justice, which already has the authority to enforce in particularly serious allegations or situations that otherwise make sense for the DOJ to investigate.” Elizabeth Troutman, a partner with Brooks, Pierce, McLendon, Humphrey & Leonard in Greensboro, North Carolina, advises and litigates in state and federal courts for public school boards, private institutions, and colleges and universities. She said choosing McMahon, who is more experienced in business than education, could signify that the Trump administration is interested in removing the federal government from the business of education. “I do not think it is as simple as announcing that the department be dismantled,” Troutman said. “There are still federal laws on the books that have to be administered—the Elementary and Secondary Act, the Individuals with Disabilities Act, the Higher Education Act. How will those laws be followed with no department?” Full story from Colleen Murphy: https://lnkd.in/eqiM8-Xe

The U.S. Department of Justice's request for a trust-busting remedy to end Google’s alleged internet search monopoly is “very, very dangerous and very, very problematic,” counsel for the tech giant said Tuesday in District of Columbia federal court. DOJ’s proposed solution would force Google to sell off its web browsing business and would “dampen and discourage a lot of innovation” in artificial intelligence applications, Google's attorney told U.S. District Judge Amit P. Mehta. Mehta in August ruled that “Google has violated Section 2 of the Sherman Act by maintaining its monopoly in two product markets in the United States—general search services and general text advertising—through its exclusive distribution agreements.” As Google prepares to file its own proposed remedy by Dec. 20, the Mountain View, California-based company wants DOJ to produce a complete list of named witnesses whom the department intends to call at a future remedies hearing. Mehta gave DOJ a Dec. 10 deadline to produce a presumptive witness list and warned the agency not to seek “water cooler discussion” documents from Google as the government demands “formal and informal” internal communications ahead of an evidentiary hearing scheduled to begin in April. The status conference in Mehta’s courtroom Tuesday followed Monday’s closing arguments before U.S. District Judge Leonie M. Brinkema in Google’s advertising tech bench trial in the Eastern District of Virginia. Full story from Sulaiman Abdur-Rahman: https://lnkd.in/epEhj-2N

The federal government wasted little time in pressing the U.S. Court of Appeals for the Fifth Circuit to publish its Monday ruling that a convicted felon did not have a Second Amendment right to possess a gun. The U.S. Department of Justice filed a motion—also on Monday—asking Judges Edith Jones, Don Willett and Kurt Engelhardt to publish the unpublished per curiam decision that revived felon-in-possession charges against James Bullock, who was convicted in 1994 for aggravated assault and manslaughter. Gun law expert Eric Ruben said the lower court’s holding from last year had garnered an outsized amount of media attention. In it, U.S. District Judge Carlton Reeves of the Southern District of Mississippi said the government failed to show that the historical tradition of firearms regulation supported disarming Bullock for his previous crimes, as required under the U.S. Supreme Court’s landmark New York State Rifle & Pistol Association v. Bruen decision. According to the U.S. Department of Justice's motion, Reeves’ ruling has been cited by various courts nearly 200 times. “In light of all the attention the district court ruling received and the outcome in that case, which would have far-reaching consequences for the most litigated federal gun law, it's not surprising that the government would want to make very clear in a precedential opinion that that outcome was wrong,” said Ruben, an SMU Dedman School of Law professor. “This isn’t your ordinary case challenging the felon in possession law," he added. "This is a case that has garnered a lot of public attention.” Full story from Avalon Z.: https://lnkd.in/esEiGXU8

The Federal Trade Commission has reached a settlement with a security screening device maker as part of the FTC's 'Operation AI Comply" program to crack down on companies' allegedly deceptive claims about the artificial intelligence capabilities of their products. But the proposed settlement with Evolv Technologies on Tuesday may be the FTC's most controversial resolution yet, by giving some customers the ability to unilaterally cancel their contracts. While all five FTC commissioners voted to file the complaint, Republican Commissioner Melissa Holyoak dissented on the FTC's proposed notice to customers giving them the right to cancel their Evolv contracts. "The notice, in effect, creates a cancellation right in Evolv's contracts where one does not otherwise exist," wrote Holyoak. "The majority includes this provision in the proposed order even through the commission has no authority under Section 13 (b) of the FTC Act to change contractual terms—whether through recission or reformation of contract remedies—or seek refund of monies." Holyoak and fellow FTC Commissioner Andrew Ferguson, also a Republican, are said to be among those President-elect Donald Trump is considering to replace FTC Chair Lina Khan, a Democrat. Full story from Chris O'Malley: https://lnkd.in/epe7rYWs

Parisa Karaahmet’s firm, Fragomen, is an immigration-focused firm with almost 800 lawyers worldwide. She anticipates delays in resolving cases and “stricter adjudications” of business immigration cases from the incoming administration. “Therefore, it’s important to be prepared for variable outcomes to an extent,” she said. She said the incoming administration could be more likely to scrutinize H-1B visas from applicants who are not as “highly skilled.” An example would be “any entry-level position where the degree is not clearly indicated to be an occupation where there’s a challenge to whether that role qualifies as a specialty occupation,” she said. “We anticipate more challenges. We anticipate potentially more denials,” Karaahmet said. Bernhard Mueller, co-chair of the immigration practice group with labor-focused Ogletree Deakins, agreed that employers will see more delays and challenges. He estimated that clients could see delays from six weeks to eight months for final decisions on H-1B cases. “We will likely see more delays in adjudication, more critical review of those petitions, more challenges to those petitions where immigration services comes back to us and says, ‘We are not convinced,’” Mueller said. Full story from Tom Spigolon: https://lnkd.in/eAjJbrpd

Partner exits and cuts, years after mergers, are common. But of the 39 lateral partners who left this year for other law firms, 31 went to firms with higher profits per equity partner than BCLP’s latest figure of $950,000, indicating many of the exits were high-performing partners. In interviews, sources familiar with BCLP say they believe the firm’s lagging profitability and inability to retain valuable U.S. partners has put the firm in a position to seek out another merger. “I think the firm needs a merger or some other transaction,” one source said. “It’s not apparent to me it will be able to continue on its present course in the long run.” Several people said the firm had engaged with early-stage approaches from other firms, but it is unclear whether they developed. In a statement, a firm spokesperson said BCLP does not comment on “market rumors” but remains “focused on pursuing growth opportunities and adding scale and strength in locations and practices where there is a high concentration of clients and strong demand for our services.” BCLP has been losing position on the global stage, having year-on-year edged down the Global 200 rankings of the world’s largest law firms year-on-year from 57th in 2019 to 74th in 2023. Unlike its rivals, the firm’s gross revenue has fallen over that four-year period. The decline comes on the back of partner exits from the firm’s U.K. and U.S. businesses, a listless global real estate market, and the firm’s withdrawal from Moscow, which has culminated in flattening revenue on its most recent results, posting a 0.6% decline to $840 million and a 0.1% decline in revenue per lawyer (RPL) in 2023. However, firm global CEO Steve Baumer and global senior partner Segun Osuntokun said they expected the firm’s financial results to be positive this year. Full story from Dan Roe: https://lnkd.in/eUkNnB6X

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U.S. District Judge Tanya Chutkan on Monday granted Special Counsel Jack Smith's motion to dismiss without prejudice the criminal case against President-elect Donald Trump over his conduct after the 2020 election, citing a sitting president's broad immunity from prosecution. "When a prosecutor moves to dismiss an indictment without prejudice, there is a strong presumption in favor of that course," wrote Chutkan, who sits in Washington, D.C. "Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office." Smith, in moving for dismissal, sought advice from a key Department of Justice office. In papers submitted to Chutkan on Monday, Smith asked for the dismissal of four felony charges his office has brought against Trump for his efforts to stop the certification of President Joe Biden’s victory in the 2020 election. Separately, Smith has dropped his appeal to reinstate charges against Trump over his alleged retention of classified documents that had previously been dismissed by U.S. District Judge Aileen Cannon of the Southern District of Florida. “It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President,” Smith wrote in his motion in D.C. federal court. Full story from Jimmy Hoover: https://lnkd.in/e3xgiJ9W

An 86-year-old attorney who spent six discipline-free decades advising clients in estate law matters can no longer practice law in his home state. A unanimous Maryland Supreme Court on Friday disbarred Francis Edward Yeatman for failing to communicate with clients and respond to bar counsel. “We have considered that Respondent practiced law for 60 years without receiving any prior discipline,” Justice Jonathan Biran wrote for the court. “It is unfortunate that Respondent ended his career as he did. However, the aggravating factors significantly outweigh the mitigating factors in this case,” Biran added. “From a client’s perspective, professional misconduct is no less problematic at the end of a legal career than it is at the beginning. That is our perspective as well.” The state Attorney Grievance Commission’s bar counsel filed a petition for disciplinary or remedial action against Yeatman in February for alleged violations of professional conduct, according to the high court’s decision. Yeatman “effectively abandoned his clients” when he stopped communicating with the estates of Ben Petree and Margaret McNulty, the court held. The high court found five aggravating factors, including Yeatman’s “refusal to acknowledge the wrongful nature of the misconduct” and his “substantial experience in the practice of law.” Full story from Sulaiman Abdur-Rahman: https://lnkd.in/eJdyE9hU