Ah, constitutional law. Where judges can reach back to George Washington and Thomas Jefferson in defense of the proposition that it's OK to smoke (as opposed to eat or vape) medical marijuana.

On Friday, a team from Boies Schiller Flexner and Morgan & Morgan convinced a judge in Tallahassee that Florida lawmakers violated the state constitution by limiting the means of ingesting cannabis.

Quoting both George Washington's farewell address of 1796 and an 1803 letter by Thomas Jefferson, Second Judicial Circuit Judge Karen Gievers wrote a high-minded (sorry I couldn't resist) opinion striking down the statute.

“Just as no person is above the law, the legislature must heed the constitutional rights Floridians placed in the Constitution in 2016,” she wrote.

More than 71 percent of Florida voters backed an amendment to the state constitution that allows people with cancer, HIV, epilepsy and other conditions to use marijuana if it's recommended by their doctor. The only stipulation was that it couldn't be smoked in public places.

The state legislature responded in 2017 with enacting legislation that lets sick people eat or vape cannabis, but forbids them from smoking it, period.

It reminds me of how in much of Europe, 16-year-olds can drink wine and beer, but not hard alcohol—even though the last time I checked, they can all get you equally drunk (notes the mother of a 16-year-old going to Europe this summer). But wine and beer somehow seem more innocuous.

The ban on smoking medical marijuana may be similarly conceived. However, it's not what the Florida voters approved when they amended the state constitution. The plaintiffs also argue that for some patients, smoking is the most effective method of delivery.

In striking down the statute, Gievers noted that the constitutional amendment “recognizes there is no right to smoke in public places, thereby implicitly recognizing the appropriateness of using smokable medical marijuana in private places,” she wrote.  “The ability to smoke medical marijuana was implied in this constitutional language and is therefore a protected right.”

(Dude.)

The Boies Schiller team, which represented People United for Medical Marijuana, includes Jon Mills, Karen Dyer, Marcy Norwood Lynch and George Coe. Also on the case: John Morgan of Morgan & Morgan.

The state of Florida has already appealed the ruling.

Want more reading on marijuana legalization and what it means for lawyers? Sign up for Higher Law, a new briefing by Cheryl Miller on cannabis as a practice.

Shout-Out: Sullivan & Cromwell Seals Bayer's $66 Billion Deal

Much as I love big antitrust trials, kudos to lawyers from Sullivan & Cromwell and Arnold & Porter, who hammered out a settlement with the Justice Department that allows their clients Bayer AG and Monsanto Co. to merge.

The $66 billion deal had obvious antitrust issues—and not just the squishy vertical kind. Rather, the agricultural giants compete head-on across multiple fronts.

DOJ apparently drove a hard bargain, insisting on a record $9 billion in divestitures. But the bottom line is, the companies got to do their deal—which makes this a win in my book.

The settlement is subject to approval by U.S. District Judge James Boasberg in Washington, D.C.

As counsel for Bayer, Sullivan & Cromwell's Steve Holley, Bradley Smith and Dustin Guzior led the way. Jonathan Ian Gleklen of Arnold & Porter represented Monsanto.

 

(Almost) Quote of the Day

Plaintiffs co-counsel Paul Gelller of Robbins Geller Rudman & Dowd was quick to trash-talk Facebook and its lawyers from Mayer Brown after U.S. District Judge James Donato in San Francisco on Tuesday denied the company's request to stay a pending class action alleging privacy violations.

“Facebook publicly says it 'intends to defend the case vigorously' yet it continues to try to avoid doing just that by seeking stays and delays,” Geller said in a written statement. “From our perspective, July 9th can't come soon enough; we're looking forward to putting a jury in the box and trying the case, and Facebook can defend itself like it claims it wants to do.”

Alas, by the end of day, Facebook scored another delay. The U.S. Court of Appeals for the Ninth Circuit granted Facebook's emergency motion for interlocutory review of the class certification ruling.

For more, see Ninth Circuit Pumps the Brakes on Facebook Biometric Trial

 

Defense Contractor to Pay $20M to Settle FCA Claim

Navy contractor Inchcape Shipping Services agreed on Tuesday to pay $20 million to settle charges that it knowingly overbilled the U.S. Navy for services provided to Navy ships from 2005 to 2014 in ports around the world.

The three whistleblowers, represented by Vogel, Slade & Goldstein and Katz, Marshall & Banks will receive $4.4 million, or 22 percent of the settlement proceeds. The government, which elected to intervene in the case, was represented by Department of Justice lawyers Brian Hudak and Robert Chandler.

According to the plaintiffs—former employees who quit after management allegedly ignored their concerns about overbilling—Inchcape routinely inflated the prices on multiple vendor invoices by 15 to 20 percent or more and pocketed the difference as profit.  

Inchcape was represented by Arnold & Porter's Craig A. Holman, J. Kirk Ogrosky, Murad Hussain and Sonia Tabriz, according to court papers.

 

Lateral Watch

It's practically Arnold & Porter day here at the Lit Daily. The firm just added two new partners to its white collar and government contracts practice (which is apparently busy—see above).

Craig D. Margolis and Tirzah S. Lollar join from Vinson & Elkins in Washington, D.C..

A former federal prosecutor in the Eastern District of Pennsylvania, Margolis specializes in defending False Claims Act matters, as well as health care, tax and securities fraud, political corruption and Foreign Corrupt Practices Act cases. Lollar also focuses on FCA and white collar defense.

“Both Craig and Tirzah are exceptional additions to our team and outstanding resources for our clients,” said John Nassikas, co-head of the firm's white collar defense practice. “They each have substantial trial and FCA experience and demonstrated track records for handling significant investigations and enforcement matters.”

 

What I'm Reading

'Boys' Network Slowly Making Room for Gender Diversity in MDL Leadership

A provocative piece by Amanda Bronstad on (slow) changes in the 'Good Ol' Boys Club' that is MDL leadership.

Judge in Case Over State Street Overbilling Is Considering Appointing New Class Counsel

On Wednesday, U.S. District Judge Mark Wolf in Boston will decide whether to appoint new class counsel following a special master's report into potential overbilling in a $75 million attorney fee request.

Special Master Eying Cohen Raid Materials Hands in $47K Invoice for April

Her rate—$700 an hour—seems reasonable.

Amid Anthem Debate, NFL Players Disclose Top Legal Billers

The players' union has some high-powered counsel at its disposal including Gibson Dunn, Latham, Quinn Emanuel and Winston & Strawn.

Pa. Law Firm Sues Bank of America Over Hacking-Related Wire Transfer

The bank failed to cancel a wire transfer made to China after the firm's account was infiltrated by hackers.

Quinn Emanuel Rebuilds Summer Associate Program With On-Campus Recruiting

With its new recruitment strategy, Quinn Emanuel is hoping to have two or three times as many summer associates next summer as it is hosting this year.

Harvey Weinstein's Attorney Worried About Ability of Grand Jurors to Keep Open Mind

Benjamin Brafman also said he was concerned about outside pressure being brought on Manhattan DA Cyrus Vance Jr.'s office to indict his client, calling it inappropriate and unprecedented.