Good morning and happy Monday! I'm Litigation Daily editor Jenna Greene with your Daily Dicta. You can reach me at [email protected] or find me on Twitter: @jgreenejenna. Read on for my take on the tumult at the CFPB, SCOTUS arguments in Oil States and a cautionary tale about email autofill …

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Who's the Boss?

When 1,600 workers at the Consumer Financial Protection Bureau show up for work on Monday, they won't know who is actually in charge.

Richard Cordray stepped down as head of the agency on Friday, a week earlier than anticipated. Before he left, he appointed his chief of staff, Leandra English, as deputy director. That would make her acting director now that he's gone.

Or not.

Hours later, President Trump appointed budget chief Mick Mulvaney as acting director, though Mulvaney will also keep his job as head of the Office of Management and Budget. (Because in the Trump administration, running the CFPB, which since its inception in 2011 has obtained more than $11 billion in relieffor cheated consumers, is a part-time job? Sure, why not.)

So … this is awkward. Will they fight over who gets the snazziest office at 1700 G Street?

English on Sunday night sued the Trump administration to block Mulvaney's appointment. Represented by CFPB alum Deepak Gupta of Gupta Wessler, she asked the U.S. District Court for the District of Columbia for declaratory relief and a temporary restraining order.

“Ms. English has a clear legal entitlement to the position of Acting Director of the CFPB,” the complaint states. “The President's purported or intended appointment of defendant Mulvaney as Acting Director of the CFPB is unlawful.”

Mulvaney's claim to the job is based on the Federal Vacancies Act, which Georgetown Law Professor Adam Levitin describes in a blog as “the default setting for federal agency succession.” It applies unless the agency's governing statute specifically lays out another plan.

The law lets the president appoint any Senate-confirmed person to serve as acting director (maybe that's why Jared Kushner didn't get the job). That person can run the show for up to 210 days, or as long as a nomination is pending before the Senate. Which as Levitin notes, could be indefinite, so long as Republicans control the Senate.

As my colleague C. Ryan Barber reports, senior Trump administration officials on Saturday said that the Justice Department's Office of Legal Counsel advised them that the vacancies law gives the president the authority to appoint an acting director. One White House official called it “a clear-cut legal question.”

Except there's also a compelling argument that the law does not in fact apply. The Dodd-Frank Act that created the CFPB states that the deputy director “shall serve as acting director in the absence or unavailability of the director.”

Which sounds a lot like an alternate succession plan, especially since the version of Dodd-Frank passed by the House specifically stripped a provision that would have applied the Federal Vacancies Act, per Levitin.

So now what?

Harvard Law School professor Laurence Tribe sees trouble ahead.

See also: CFPB's Deputy Director Sues Trump to Shut Out Pick for Interim Leader

On Deck Today

The U.S. Supreme Court hears arguments this morning in two cases that could upend or reshape patent litigation.

For an excellent oveview, see: Future of Patent Litigation Hangs in the Balance: What to Watch For at Oil States Arguments

Also, join Law.com's lead IP reporter Scott Graham on Tuesday, Nov. 27 for a day-after debrief by conference call. He'll be comparing notes with Orrick, Herrington & Sutcliffe partner Mark Davies. To register, click here.

The Perils of Autofill

A well-known litigation partner at top New York firm recently sent me a gracious email thanking me for my lovely dinner party with a European ambassador and complimenting my chef.

From this, I learned two things. 1) This lawyer has a way better social life than me, seeing as on the night in question, I was home eating pizza and watching “Stranger Things” on Netflix. 2) Autofill can trip up the best of us.

Venable partner Thomas Wallerstein and associate Juan Aragon recently wrote an interesting blog post on the perils of autofill in litigation.

They start with a true anecdote, names redacted. Two former employees were involved in a trade secrets dispute with their former employer, a corporation. One emailed the other, as well as their joint defense counsel, about the case. But when she typed her colleague's name in the address box, her email program autofilled using his old, work-issued email.

The former employer was monitoring his company email, and was thus privy to numerous communications in the email chain between the ex-employees and their lawyer.

So what should lawyers on both sides do in a situation like this?

“This type of inadvertent disclosure raises difficult questions regarding whether to alert opposing counsel of the disclosure, especially if opposing counsel is less than scrupulous,” Wallerstein and Aragon wrote. “On the one hand, alerting your adversary is prudent because it imposes an ethical and likely legal duty upon the adversary to sequester or destroy the inadvertent transmission.”

“On the other hand,” they continued, “if opposing counsel is unscrupulous, notifying them of the inadvertent disclosure only highlights the disclosure (which otherwise might never have been noticed) and makes it more likely that the privileged emails will be reviewed.”

I'd love to hear from any lawyers out there who have been in a similar situation, or who have thoughts on how it should be handled. Email me at [email protected].

Why It's a Total Racket to Use Law Firms as Prosecutors

Southern California resident Cesar Garcia failed to get a building permit for a minor home addition. He brought the work up to code and paid a $900 fine—only to be billed $26,000 for his prosecution by the law firm of Silver & White. It jumped to $31,000 when he appealed.

So begins a shocking story by The Desert Sun about a law firm contracted to serve as city prosecutors in the inland cities of Indio and Coachella.

“Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes—like overgrown weeds, a junk-filled yard or selling popsicles without a business license—then billed them thousands of dollars to recoup expenses,” the story states.

“In most of those cases, the disparity between the crime and the cost is staggering. Defendants who faced no jail time and were fined only a few hundred dollars ended up paying five or 10 times that much to prosecutors who attended a couple of court hearings.”

The story also notes that the homeowners have little choice but to pay, lest the city slap a lien on their property.

Ontario, California-based Silver & Wright claims on its Facebook page that “Our attorneys have developed unique and cutting edge practices to achieve success for our clients and make nuisance abatement and code enforcement cost neutral or even revenue producing.”

Revenue producing for the firm, that is.

According to the paper, the firm refused multiple requests for comment (bad idea) and responded after publication that the piece was inaccurate. But the paper stands by its story.

For example, Silver & Wright said, “The cases are meritorious, and supported by law and evidence, as proven by the convictions obtained and the admissions of guilt by the defendants in the article.”

The Desert Sun responded, “This is also not in dispute. Our article reported that every defendant in every case we identified had pleaded guilty. No one in the story denied their guilt, and all of their criticisms were levied at the prosecution process and fees charged by Silver & Wright.”

Other Legal News

Eric Mahr, DOJ Antitrust Litigation Chief, Departs Agency
Just in time to miss all the AT&T/ Time Warner fun.

How a $20M Wrongful Death Case Ended in a Defense Win
Defense counsel said a focus group and a two-day mock trial predicted the unlikely outcome. Personally, I can't believe it worked.

Judge Appoints Team to Lead Federal Hurricane Harvey Flood Suits
Of the 12 lawyers selected, most are based in Texas, but counsel from Jenner & Block and Kellogg Hansen Todd Figel & Frederick also got the nod.

Former ALJ Claiming Co-Worker Harassed Her With Sex Toy Can Move Ahead With Discrimination Suit
Mr. Testicles? Really? What's wrong with people? But that's not all. Susan Kassapian also claims ALJs were being pressured to issue decisions favoring New York City's consumer affairs department and to impose maximum fines on businesses so that the agency could reap more money.

Court Revives Claims Against Cosby's Lawyer in Accuser's Defamation Suit
This case “is about a woman's right to speak out about sexual assault accusations without being publicly attacked in response,” said Lisa Bloom, who represents supermodel Janice Dickinson.

In Case You Missed It

Daily Dicta: How Sick-as-a-Dog Abbe Lowell Powered Through Menendez Closing
It's hard to imagine a worse-case scenario: closing arguments in a massive, high-profile case, and you've been up all night with an awful stomach virus. After an early morning trip to the urgent care clinic, you drag yourself to court. Now what?

If you're Abbe Lowell in the corruption trial of Sen. Bob Menendez, you power through—with help from co-counsel.

Thanks for reading. See you tomorrow for more Daily Dicta!

Good morning and happy Monday! I'm Litigation Daily editor Jenna Greene with your Daily Dicta. You can reach me at [email protected] or find me on Twitter: @jgreenejenna. Read on for my take on the tumult at the CFPB, SCOTUS arguments in Oil States and a cautionary tale about email autofill …

|

Who's the Boss?

When 1,600 workers at the Consumer Financial Protection Bureau show up for work on Monday, they won't know who is actually in charge.

Richard Cordray stepped down as head of the agency on Friday, a week earlier than anticipated. Before he left, he appointed his chief of staff, Leandra English, as deputy director. That would make her acting director now that he's gone.

Or not.

Hours later, President Trump appointed budget chief Mick Mulvaney as acting director, though Mulvaney will also keep his job as head of the Office of Management and Budget. (Because in the Trump administration, running the CFPB, which since its inception in 2011 has obtained more than $11 billion in relieffor cheated consumers, is a part-time job? Sure, why not.)

So … this is awkward. Will they fight over who gets the snazziest office at 1700 G Street?

English on Sunday night sued the Trump administration to block Mulvaney's appointment. Represented by CFPB alum Deepak Gupta of Gupta Wessler, she asked the U.S. District Court for the District of Columbia for declaratory relief and a temporary restraining order.

“Ms. English has a clear legal entitlement to the position of Acting Director of the CFPB,” the complaint states. “The President's purported or intended appointment of defendant Mulvaney as Acting Director of the CFPB is unlawful.”

Mulvaney's claim to the job is based on the Federal Vacancies Act, which Georgetown Law Professor Adam Levitin describes in a blog as “the default setting for federal agency succession.” It applies unless the agency's governing statute specifically lays out another plan.

The law lets the president appoint any Senate-confirmed person to serve as acting director (maybe that's why Jared Kushner didn't get the job). That person can run the show for up to 210 days, or as long as a nomination is pending before the Senate. Which as Levitin notes, could be indefinite, so long as Republicans control the Senate.

As my colleague C. Ryan Barber reports, senior Trump administration officials on Saturday said that the Justice Department's Office of Legal Counsel advised them that the vacancies law gives the president the authority to appoint an acting director. One White House official called it “a clear-cut legal question.”

Except there's also a compelling argument that the law does not in fact apply. The Dodd-Frank Act that created the CFPB states that the deputy director “shall serve as acting director in the absence or unavailability of the director.”

Which sounds a lot like an alternate succession plan, especially since the version of Dodd-Frank passed by the House specifically stripped a provision that would have applied the Federal Vacancies Act, per Levitin.

So now what?

Harvard Law School professor Laurence Tribe sees trouble ahead.

See also: CFPB's Deputy Director Sues Trump to Shut Out Pick for Interim Leader

On Deck Today

The U.S. Supreme Court hears arguments this morning in two cases that could upend or reshape patent litigation.

For an excellent oveview, see: Future of Patent Litigation Hangs in the Balance: What to Watch For at Oil States Arguments

Also, join Law.com's lead IP reporter Scott Graham on Tuesday, Nov. 27 for a day-after debrief by conference call. He'll be comparing notes with Orrick, Herrington & Sutcliffe partner Mark Davies. To register, click here.

The Perils of Autofill

A well-known litigation partner at top New York firm recently sent me a gracious email thanking me for my lovely dinner party with a European ambassador and complimenting my chef.

From this, I learned two things. 1) This lawyer has a way better social life than me, seeing as on the night in question, I was home eating pizza and watching “Stranger Things” on Netflix. 2) Autofill can trip up the best of us.

Venable partner Thomas Wallerstein and associate Juan Aragon recently wrote an interesting blog post on the perils of autofill in litigation.

They start with a true anecdote, names redacted. Two former employees were involved in a trade secrets dispute with their former employer, a corporation. One emailed the other, as well as their joint defense counsel, about the case. But when she typed her colleague's name in the address box, her email program autofilled using his old, work-issued email.

The former employer was monitoring his company email, and was thus privy to numerous communications in the email chain between the ex-employees and their lawyer.

So what should lawyers on both sides do in a situation like this?

“This type of inadvertent disclosure raises difficult questions regarding whether to alert opposing counsel of the disclosure, especially if opposing counsel is less than scrupulous,” Wallerstein and Aragon wrote. “On the one hand, alerting your adversary is prudent because it imposes an ethical and likely legal duty upon the adversary to sequester or destroy the inadvertent transmission.”

“On the other hand,” they continued, “if opposing counsel is unscrupulous, notifying them of the inadvertent disclosure only highlights the disclosure (which otherwise might never have been noticed) and makes it more likely that the privileged emails will be reviewed.”

I'd love to hear from any lawyers out there who have been in a similar situation, or who have thoughts on how it should be handled. Email me at [email protected].

Why It's a Total Racket to Use Law Firms as Prosecutors

Southern California resident Cesar Garcia failed to get a building permit for a minor home addition. He brought the work up to code and paid a $900 fine—only to be billed $26,000 for his prosecution by the law firm of Silver & White. It jumped to $31,000 when he appealed.

So begins a shocking story by The Desert Sun about a law firm contracted to serve as city prosecutors in the inland cities of Indio and Coachella.

“Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes—like overgrown weeds, a junk-filled yard or selling popsicles without a business license—then billed them thousands of dollars to recoup expenses,” the story states.

“In most of those cases, the disparity between the crime and the cost is staggering. Defendants who faced no jail time and were fined only a few hundred dollars ended up paying five or 10 times that much to prosecutors who attended a couple of court hearings.”

The story also notes that the homeowners have little choice but to pay, lest the city slap a lien on their property.

Ontario, California-based Silver & Wright claims on its Facebook page that “Our attorneys have developed unique and cutting edge practices to achieve success for our clients and make nuisance abatement and code enforcement cost neutral or even revenue producing.”

Revenue producing for the firm, that is.

According to the paper, the firm refused multiple requests for comment (bad idea) and responded after publication that the piece was inaccurate. But the paper stands by its story.

For example, Silver & Wright said, “The cases are meritorious, and supported by law and evidence, as proven by the convictions obtained and the admissions of guilt by the defendants in the article.”

The Desert Sun responded, “This is also not in dispute. Our article reported that every defendant in every case we identified had pleaded guilty. No one in the story denied their guilt, and all of their criticisms were levied at the prosecution process and fees charged by Silver & Wright.”

Other Legal News

Eric Mahr, DOJ Antitrust Litigation Chief, Departs Agency
Just in time to miss all the AT&T/ Time Warner fun.

How a $20M Wrongful Death Case Ended in a Defense Win
Defense counsel said a focus group and a two-day mock trial predicted the unlikely outcome. Personally, I can't believe it worked.

Judge Appoints Team to Lead Federal Hurricane Harvey Flood Suits
Of the 12 lawyers selected, most are based in Texas, but counsel from Jenner & Block and Kellogg Hansen Todd Figel & Frederick also got the nod.

Former ALJ Claiming Co-Worker Harassed Her With Sex Toy Can Move Ahead With Discrimination Suit
Mr. Testicles? Really? What's wrong with people? But that's not all. Susan Kassapian also claims ALJs were being pressured to issue decisions favoring New York City's consumer affairs department and to impose maximum fines on businesses so that the agency could reap more money.

Court Revives Claims Against Cosby's Lawyer in Accuser's Defamation Suit
This case “is about a woman's right to speak out about sexual assault accusations without being publicly attacked in response,” said Lisa Bloom, who represents supermodel Janice Dickinson.

In Case You Missed It

Daily Dicta: How Sick-as-a-Dog Abbe Lowell Powered Through Menendez Closing
It's hard to imagine a worse-case scenario: closing arguments in a massive, high-profile case, and you've been up all night with an awful stomach virus. After an early morning trip to the urgent care clinic, you drag yourself to court. Now what?

If you're Abbe Lowell in the corruption trial of Sen. Bob Menendez, you power through—with help from co-counsel.

Thanks for reading. See you tomorrow for more Daily Dicta!