Minimum Competence - Daily Legal News Podcast
Minimum Competence
Fri 11/24 - UN Comes for DuPont and Chemours, Apple Settles with DOJ Over Hiring, Biden Admin. Defends West Point Race Conscious Admissions and AI Guidelines for Appeals Court

Fri 11/24 - UN Comes for DuPont and Chemours, Apple Settles with DOJ Over Hiring, Biden Admin. Defends West Point Race Conscious Admissions and AI Guidelines for Appeals Court

UN eyeballing DuPont and Chemours over PFAS, Apple settles with DOJ over hiring bias, Biden administration defends West Point’s race-conscious admissions, and appeals court proposes AI guidelines.

Velvet Revolution in Czechoslovakia, pencil sketch.

On this day, November 24, in legal history, a pivotal event unfolded in Czechoslovakia, marking a significant turning point in the country's journey towards democracy. In 1989, the leaders of the Communist Party of Czechoslovakia, under mounting pressure and facing an undeniable surge for change, resigned from their positions. This resignation was a direct response to the widespread protests and political movements demanding democratic reforms, a wave that had been sweeping across Eastern Europe following the decline of Soviet influence in the region.

Central to this movement in Czechoslovakia was Vaclav Havel, a distinguished playwright and political dissident, who emerged as a leading figure in the opposition. Havel, who had long been an outspoken critic of the Communist regime, played a crucial role in the Velvet Revolution, a peaceful series of protests that ultimately led to the end of 41 years of Communist rule in Czechoslovakia. His actions, characterized by non-violent resistance and powerful advocacy for human rights, not only symbolized the yearning for freedom and democracy but also inspired a nation to strive for these ideals.

The resignation of the Communist Party leaders on this day was a landmark victory for the Velvet Revolution and paved the way for significant legal and political changes in Czechoslovakia. This event marked the beginning of a transition from a one-party system to a parliamentary democracy, a transition that culminated in the election of Vaclav Havel as the first democratically elected President of Czechoslovakia in December 1989. His presidency represented not only a new era for Czechoslovakia but also symbolized the triumph of democratic principles over authoritarian rule in the post-Cold War era.

The United Nations Special Rapporteur on toxics and human rights, Marcos A. Orellana, has initiated an investigation into three companies historically linked to DuPont, along with the governments of the Netherlands and the United States. This probe concerns the human rights and environmental impacts stemming from the release of per- and polyfluoroalkyl substances (PFAS) from a Fayetteville, North Carolina plant. In letters sent to these entities, Orellana expressed deep concern over the apparent disregard for human rights and environmental protections demonstrated by DuPont de Nemours Inc., the Chemours Co. LLC, and Corteva Agriscience LLC in their handling of PFAS, known for their potential harmful effects.

Chemours responded with details of their efforts to control PFAS release at their Fayetteville Works factory, including significant pollution control measures and water treatment systems, which have cost over $200 million. They also highlighted a barrier wall to prevent chemical migration to local waters and provided data showing decreasing PFAS levels in the adjacent Cape Fear River. Corteva, on the other hand, clarified that it is an independent agricultural company and has neither produced nor sold the PFAS in question, though it inherited some liabilities related to PFAS under a 2021 settlement.

The Netherlands detailed its compliance with international law in its dealings with Chemours, including requesting U.S. EPA permission for PFAS waste export from a Dutch Chemours plant to the North Carolina facility, a move highlighted by Orellana as potentially exacerbating the problem.

Orellana criticized the U.S. for inadequate health and environmental protections, alleging that American regulatory failures have deprived North Carolina communities of essential information to prevent harm and seek reparation. He pointed out that legal actions against the companies have been insufficient, with enforcement and remediation measures falling short. This, according to Orellana, undermines the community members' rights to information and effective remedies. As of the report, responses from the U.S. government and DuPont were not immediately available on the UN's website.

You will remember we reported on 3M’s $10.3 billion PFAS settlement back in September, it appears likely as more is learned about PFAS that more litigation and ultimately more settlements will be in the offing. 

UN Probes DuPont, Chemours Over Human Rights Harms From PFAS

A $25 million settlement between Apple Inc. and the Department of Justice (DOJ) over allegations of hiring bias against U.S. citizens has underscored a broader dilemma in Big Tech regarding compliance with immigration laws. The case highlights a disconnect between the Department of Labor (DOL) and the DOJ in enforcing these laws, particularly in the context of sponsoring foreign workers for lawful permanent residency. Apple's case is the second major enforcement action against a U.S. employer for biases in sponsoring foreign workers, following a similar case with Facebook in 2021.

Under the PERM (Permanent Labor Certification) program, companies sponsoring foreign workers must meet additional DOL recruiting requirements, which some attorneys find outdated, such as advertising in Sunday print newspapers. Despite adherence to DOL regulations, companies like Apple find themselves scrutinized by the DOJ for potential recruitment failures. The DOJ alleged that Apple took measures to depress applications from U.S. workers, including requiring paper applications and not advertising PERM positions on its external website.

Large tech firms are particularly vulnerable to such scrutiny due to their heavy use of the PERM process and the H-1B visa program. For many foreign workers employed in the U.S. on temporary visas, progress toward permanent residency is crucial for renewing their temporary status, especially given the long wait times for green cards. 

The DOJ's position is that employers are not permitted to deter job applications based on citizenship or immigration status. However, this has raised concerns among immigration attorneys who argue that complying with the letter of DOL laws might still invite DOJ enforcement actions, creating a challenging environment for employers to navigate.

The Apple case, following the Facebook settlement, signifies a growing enforcement trend by the DOJ and raises questions about the consistency and clarity of regulations governing the sponsorship of foreign workers for permanent residency. It also suggests the need for federal agencies to harmonize their approaches and update recruitment mandates to reflect modern hiring practices.

Apple’s Hiring Bias Case Reveals Big Tech Foreign Worker Dilemma

The Biden administration has defended the race-conscious admissions policy of the U.S. Military Academy at West Point in a recent legal challenge. In a brief filed by the U.S. Department of Justice, the administration argued that the academy's affirmative action policies are crucial for ensuring a diverse and effective military force, which is integral to national security. This stance comes despite the U.S. Supreme Court's June ruling that struck down similar race-conscious admissions policies used by civilian colleges.

The lawsuit, filed by Students for Fair Admissions (SFFA), a group founded by affirmative action opponent Edward Blum, alleges that West Point's practices discriminate against white applicants, violating the equal protection principle of the U.S. Constitution's Fifth Amendment. However, the Justice Department contends that SFFA lacks legal standing to sue and points out critical differences between civilian universities and military academies in their use of race in admissions.

The administration emphasizes that diversity in the Army officer corps, fostered in part by West Point's admissions practices, results in a more effective, lethal, and legitimate force in the eyes of the nation and the world. The lawsuit seeks to end an exemption that allows military academies to consider race as a factor in admissions, an issue the Supreme Court did not address in its recent ruling.

The Justice Department's brief highlights the racial disparities in the Army, noting that while Black and Hispanic people make up a significant portion of active duty enlisted personnel, they are underrepresented in officer positions. In contrast, white individuals constitute a larger percentage of officers compared to their representation in the enlisted corps. The case, which will have arguments heard on December 21, raises crucial questions about the role of race in military academy admissions and its impact on the composition and effectiveness of the U.S. military.

Biden administration defends West Point's race-conscious admissions policy | Reuters

The 5th U.S. Circuit Court of Appeals in New Orleans is proposing a rule requiring lawyers to certify their use of artificial intelligence (AI) in drafting legal briefs. This proposed rule, a first among the nation's 13 federal appeals courts, aims to regulate the use of generative AI tools like OpenAI's ChatGPT. Lawyers would need to confirm that any AI-generated text in court filings has been reviewed for accuracy, particularly citations and legal analysis. Failure to comply could result in filings being stricken and potential sanctions.

This move comes as the legal community increasingly grapples with the implications of AI in the courtroom. The need for such a rule was highlighted by an incident in June, where two New York lawyers faced sanctions for submitting a brief with fictitious case citations generated by ChatGPT. The 5th Circuit's initiative follows similar actions by district courts in its jurisdiction, including the Eastern District of Texas, which recently announced a rule requiring lawyers to verify any computer-generated content.

These measures reflect a growing awareness of the potential inaccuracies in AI-generated legal content and the importance of ensuring that AI tools do not replace the critical thinking and problem-solving skills required in legal practice. The 5th Circuit is currently seeking public comment on this proposal until January 4.

US appeals court proposes lawyers certify review of AI use in filings | Reuters

Minimum Competence - Daily Legal News Podcast
Minimum Competence
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