This Day in Legal History: The First Act of Congress
On this day in 1789, President George Washington signed the first statute ever enacted by Congress under the new Constitution — “An Act to Regulate the Time and Manner of Administering Certain Oaths,” codified at 1 Stat. 23. The substance was modest: the law prescribed the form of the oath that members of Congress, federal judges, and executive officers were to take to support the Constitution, and gave the states a window in which to swear in their own officials. But the symbolism was enormous. It was the first time the new federal government did the thing governments actually do, which is to pass a law and require people to obey it, and the choice of subject was telling.
Before Congress regulated commerce, levied taxes, or built courts, it bound its own officers to the Constitution by oath. The oath clauses in Article II and Article VI have been doing quiet doctrinal work ever since: they ground the Supremacy Clause, they undergird Marbury’s claim that judges are bound to follow the Constitution as supreme law, and they sit at the center of the Fourteenth Amendment, Section 3 disqualification debate that the Supreme Court took up in Trump v. Anderson just two years ago. The Oath Act of 1789 is not the kind of statute that gets quoted on bar exams, but it is the original instance of Congress speaking in legal form, and everything the federal government has done since rests on top of it.
Uber went after one of its own bellwether plaintiffs Friday in the sprawling multidistrict litigation over alleged passenger sexual assaults, asking U.S. Magistrate Judge Lisa J. Cisneros in the Northern District of California to impose sanctions on plaintiff B.L. and her counsel at Wagstaff Law Firm for what Uber called “pervasive bad faith” in discovery.
The headline accusation, made by Kirkland & Ellis’s Michael Vives for Uber, is that B.L.’s privilege log cites cases that don’t exist — what Vives suggested may be “hallucinated case law” generated by an AI tool — and Vives floated that as an independent basis for sanctions on top of the alleged document withholding, redactions, and undisclosed witnesses Uber catalogued in its April motion.
he legal vehicle here is Federal Rule of Civil Procedure 37, which gives a federal court a tiered menu of sanctions for discovery misconduct — fees and costs at the low end, adverse-inference instructions and claim preclusion at the high end — and Uber is asking the court to throw B.L.’s case out of the next bellwether wave entirely. Judge Cisneros noticed during the hearing that what struck her about the briefing was the pattern, not any single incident; she pointed to one example where the plaintiff identified a person as a “friend” and only later produced a fuller set of text messages showing the person was actually a therapist.
The judge ordered the plaintiff to file a sur-reply by Thursday before ruling, which means a sanctions order is now teed up. The case sits within In re Uber Technologies, Inc., Passenger Sexual Assault Litigation (MDL No. 3084) before Judge Charles R. Breyer, and any sanctions ruling will set the tone for how the rest of the bellwether pool conducts discovery. If the hallucinated-caselaw piece sticks, this also becomes one of the first real Rule 11 / Rule 37 hybrid sanctions vehicles for generative AI misuse in the MDL context — and the bar will be reading it closely.
‘Pervasive Bad Faith’: Uber Targets Sex Assault MDL Plaintiff | Law360
The Seventh Circuit on Friday told the Northern District of Illinois that the now-standard practice of serving Chinese e-commerce defendants by email in “Schedule A” trademark cases doesn’t fly under the Hague Service Convention — at least not when the convention applies, which is a question the district court has to actually answer first. The dispute came up in Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., No. 25-2205, where the hat-maker Kangol sued more than twenty Chinese vendors for trademark infringement and identified them on a sealed “Schedule A” exhibit attached to the complaint — the same procedural pattern that drives the enormous Schedule A docket in Chicago’s federal court.
Kangol got a default judgment after serving the defendants by email, but one defendant, Hangzhou Chuanyue, appeared and moved to vacate, arguing that the Hague Convention prohibits email service in China and that the convention applies because Hangzhou’s address is discoverable. The legal hook is Article 10(a) of the Hague Service Convention, which permits service “by postal channels” only when the destination state has not objected — and China has affirmatively objected to Article 10(a), full stop.
The Seventh Circuit, citing the Supreme Court’s 2017 decision in Water Splash, Inc. v. Menon, held that whether or not email counts as a “postal channel,” Article 10(a) is unavailable in China, so email service in this case was improper if the convention applied at all. The panel — Judges Thomas Kirsch, Candace Jackson-Akiwumi, and Doris Pryor — reversed the denial of Hangzhou’s motion to vacate and sent the case back for the threshold question the district court skipped: did Kangol make reasonably diligent efforts to find Hangzhou’s address, which would have triggered the convention.
The practical fallout will reach hundreds, possibly thousands, of pending Schedule A cases in Chicago that rely on email service as a matter of course, and plaintiff firms in this space will be scrambling to redo their service strategy.
7th Circ. Revives Chinese IP Defendants’ Email Service Case | Law360
The Judicial Panel on Multidistrict Litigation on Thursday transferred Randall King’s proposed class action — the vehicle for a proposed $7.25 billion Roundup settlement with Monsanto — into the Northern District of California MDL before Judge Vince Chhabria, despite vehement objections from absent class members who want the case to stay in Missouri state court.
The case-within-a-case is unusual: the King action was filed and preliminarily settled in Missouri state court, then a group of objectors (represented by Keller Postman) removed it to federal court under the Class Action Fairness Act, and the JPML then tagged it for transfer to the consolidated Roundup MDL. The legal hook here is 28 U.S.C. § 1407, the JPML’s transfer authority — paired with CAFA’s removal rules, which the settling plaintiffs argue were misused because the objectors aren’t “defendants” within the meaning of § 1453 and so cannot remove.
The objectors counter that the $7.25 billion deal “launders a liability-management scheme through the courts” by funneling claims of Roundup cancer victims through a Missouri state-court class that an MDL judge would never approve, and they want federal-court scrutiny under Rule 23 and the standards Judge Chhabria has spent years developing in the Roundup litigation. Monsanto, for its part, is on the objectors’ side of the venue question — at least tactically — telling Law360 that the case should go back to Missouri state court and it will move to oppose the transfer order.
The whole fight is also tied up with the Supreme Court’s pending decision in a separate Monsanto case that will determine whether the deal survives at all, because the proposed $7.25 billion is structured around what the Court does there. Whichever way this remand/transfer fight comes out, it is going to be cited in every future class-settlement-jurisdiction tug-of-war for the rest of the decade.
$7.25B Roundup Deal Sent To Calif. MDL | Law360
A U.S. district judge in Florida said Saturday she will take a closer look at the settlement the Trump administration has reached with itself — or more precisely, with President Trump in his personal capacity — over a long-running IRS lawsuit, scheduling further proceedings to examine whether the deal can stand.
The procedural posture is what makes this one interesting: the case involves a federal agency under the President’s control settling claims with the President personally, which raises immediate questions about whether anyone is actually adverse to anyone, and whether the resulting consent decree or stipulation can carry the legal weight a normal settlement does.
The legal mechanism the judge appears to be invoking is the federal court’s inherent supervisory authority over consent decrees and settlements involving the federal government, an authority that runs through cases like Local No. 93 v. City of Cleveland and that the Tunney Act formalizes for antitrust settlements — though here there is no Tunney Act, just the general principle that a federal court doesn’t have to rubber-stamp a settlement when there are serious questions about whether the United States was actually represented in the negotiation.
The hearing on the issue was set for late May in Miami, with the judge reportedly skeptical that the deal can be approved without further factual development. The political stakes are obvious, but the legal stakes are arguably bigger: if the court can refuse to approve the settlement on the ground that the executive branch was not adverse to itself in any meaningful way, it would create a precedent that constrains every future administration’s ability to make its own personal litigation go away through agency action. Expect this one to generate appellate motion practice within weeks.
US judge orders review of Trump’s IRS lawsuit settlement | Reuters
