On Sunday night, the U.S. Senate failed to reach a deal. The government remains closed, and for me, it's personal—my husband is among the hundreds of thousands of federal workers who will be furloughed.  And when you've got a mortgage to pay, college tuition for your son, a dog that needs to go to the vet, an oven that needs repairing … let's just say it's a problem to suddenly lose a paycheck.

Depending on how long the lapse in appropriations lasts, it's going to hit the litigation community too.

My colleague Cogan Schneier reported that the federal courts have enough money to stay open until Feb. 9, funded by a mix of revenues from fees and long-term appropriations.

But if the 2013 shutdown is any guide, the impact on litigation will be widespread nonetheless. Almost all of the Justice Department's civil cases will be stayed. A few may proceed—last time, civil forfeiture cases continued, as did a major antitrust case, the $11 billion merger of American Airlines and US Airways, which was headed for trial the following month.

Likewise, U.S. District Judge Richard Leon, who is overseeing the pending AT&T/ Time Warner merger challenge, has already indicated he would not be inclined to stay the case during the shutdown.

The immigration courts will be closed, with the exception of most cases involving people who are being held in detention.

Private practice lawyers appointed by the courts to represent indigent criminal defendants won't get paid. Payments from the Judgment Fund will halt.

Agencies such as the International Trade Commission, the Federal Trade Commission, the Commodities Future Trading Commission and the Equal Employment Opportunity Commission will be at a near-standstill.

The U.S. Securities and Exchange Commission managed to stay open in 2013—unlike most other agencies, its appropriations language provides that its funds “remain available until expended.” But the 2013 shutdown was in the fall, when the SEC still had leftover money from the prior fiscal year. This time, it's less clear: The SEC on its website just says it will remain open and fully staffed “for a limited number of days.”

The Consumer Financial Protection Bureau, which is funded by fees from the Federal Reserve, will presumably be unaffected by the shutdown. Besides, its new director, Mick Mulvaney, last week asked for $0 to cover its second quarter expenses because the agency still has $177 million in a reserve fund.

Yes, essential functions will continue—air traffic will be controlled, prisons will be guarded, borders will be patrolled. But the government (that would be us, the taxpayers) can expect to face liability for forcing these “essential” workers to work without pay during the shutdown, even if they eventually get paid when the government reopens.

After the 2013, shutdown, the feds were hit with a class action for violating the Fair Labor Standards Act. Last year, U.S. Court of Federal Claims Judge Patricia Campbell-Smith ruled that the government owed damages to the 25,000 federal workers who opted into the suit and worked during the shutdown.

In short, this is a frustrating, inefficient and irrational way to govern. I just hope it ends soon—for myself, my family, my country.

See also: Government Shutdown? SCOTUS Is Unfazed.

 

After Rocky Start, Kirkland Lands on Judge's Good Side with Win for Facebook (But Pity the Plaintiff's Counsel)

Lest there be any doubt, Senior U.S. District Judge Nicholas Garaufis is not to be trifled with.

As in, this judge is sort of terrifying.

First, the Brooklyn-based Garaufis in 2016 blasted Kirkland & Ellis for sending junior associate Aulden Burcher-DuPont solo to a pre-motion conference on behalf of Facebook, which was being sued for supporting terrorist organizations by letting them use its platform.

“You tell your folks back at Kirkland & Ellis that I don't much like the idea that they think so little of this court that they didn't send a partner. … I think it is outrageous and irresponsible and insulting,” Garaufis told poor Burcher-DuPont, according to a transcript of the proceedings. “I've been a lawyer for 41 years and I've been a judge for 16 years and I'm not having this discussion with you.”

Last week, the lawyer for one set of plaintiffs suing Facebook, Robert Tolchin of The Berkman Law Office, suffered his own humiliation at the hands of Garaufis—albeit in a more conventional way. That is, the judge ripped his argument to shreds.

In May of 2017, Garaufis dismissed Tolchin's suit against Facebook by U.S. citizen victims of past attacks by the Palestinian terrorist organization Hamas. The suit alleged that Facebook “knowingly provided material support and resources” to Palestinian terrorists who have used the social media site to incite, organize and dispatch would-be killers.

In dismissing the case, Garaufis found Facebook was shielded by the Communications Decency Act. However, he tossed the complaint without prejudice.

So Tolchin tried again—not a shocker, considering his clients claimed $3 billion in damages.

Garaufis was having none of it. In his Jan. 18 opinion, he spent 25 pages tearing down every attempt by Tolchin to persuade him to alter his judgment or permit a second amended complaint.

A sampling:

“Plaintiffs' arguments on this point do not come close to meriting reconsideration.”

“Plaintiffs identify no contrary authority that the court overlooked or misapplied.”

“Plaintiffs plainly misread the court's opinion.”

“Plaintiffs' contention is completely disingenuous.”

“Plaintiffs' contention is flatly refuted by Facebook's briefing on the original motion to dismiss.”

“For Plaintiffs to now turn around and argue that its allegations are largely about content that Facebook itself created borders on mendacious.”

“The court sees no reason to permit relitigation of issues already decided simply because Plaintiffs are dissatisfied with the court's prior decision.”

“Even if Plaintiffs' argument is not waived, however, it is meritless.”

“[T]he argument is unsupported in law or logic.”

“Plaintiffs' suggestion appears to be fundamentally at odds with supremacy of federal law over state law.”

“Plaintiffs are merely attempting to rehash arguments that the court has already considered and rejected.”

“The court sees no reason to reconsider its previous decision dismissing the first amended complaint.”

 

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