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Legal News for Thurs 12/28 - Apple Watch pause ban, New York legal landscape changed, rise of PFAS litigation, and the FTC sues Grand Canyon University

Legal News for Thurs 12/28 - Apple Watch pause ban, New York legal landscape changed, rise of PFAS litigation, and the FTC sues Grand Canyon University

Pause on Apple Watch ban but fight continues, the NYC legal scene enters 2024 looking different, more litigation on “forever chemicals” forthcoming, and the FTC sues Grand Canyon University.

An Apple Watch, an American Flag, and the Grand Canyon, pencil sketch.

This Day in Legal History: Pledge of Allegiance

On December 28, 1945, a significant moment in American educational and legal history occurred when Congress officially recognized the Pledge of Allegiance, urging its recitation in schools nationwide. The Pledge, originally composed in 1892 by Francis Bellamy, a Baptist minister, was intended to mark the 400th anniversary of Columbus Day. It underwent a critical change in 1954 when Congress added the words "under God," reflecting the era's heightened religious sentiment during the Cold War. 

This inclusion of "under God" in the Pledge later sparked legal challenges, notably involving Michael Newdow, who contested his daughter's school district's policy of daily Pledge recitation. Newdow argued that this practice infringed upon the separation of church and state. His case eventually reached the United States Supreme Court, which, in a pivotal decision, ruled that Newdow lacked standing, thereby not addressing the constitutional issue he raised.

The legal journey of the Pledge of Allegiance illustrates the dynamic relationship between national identity, religion, and education in the United States. Over the years, the Pledge has been both a symbol of unity and a point of contention, reflecting the nation's evolving perspectives on patriotism and religious expression. The Pew Forum on Religion and Public Life, among other institutions, has provided extensive resources and insights into the ongoing debates surrounding the Pledge.

The recognition of the Pledge by Congress in 1945 marked a formal endorsement of a practice that had already taken root in many schools. It solidified the Pledge's role in American culture, embedding it into the daily lives of millions of students. This action by Congress highlighted the importance of patriotic rituals in fostering a sense of national unity, especially in the aftermath of World War II.

Today, the Pledge remains a staple in many educational institutions, symbolizing allegiance to the nation while also serving as a reminder of the ongoing discussions about the role of religion in public life and the meaning of patriotism in a diverse society.

Apple Inc. is engaged in a complex legal and technical battle following a U.S. International Trade Commission (ITC) ruling that some of its Apple Watch models infringed patents held by Masimo Corp., a medical-device maker. The ban initially led to a halt in U.S. sales of the Apple Watch Series 9 and Ultra 2, but Apple won a temporary reprieve from a federal appeals court, allowing the sales of these models to resume.

Apple's multifaceted strategy to counter the ban includes appealing the ITC decision, developing software modifications to avoid patent infringement, and submitting these changes to U.S. customs for approval. The company hopes this approach will enable it to continue selling non-infringing versions of the devices. The Federal Circuit has given the ITC until January 10 to respond to Apple's request for a stay of the ban for the duration of the appeal process.

Despite the current pause in enforcement of the ITC's decision, the import ban stands. The outcome of the upcoming Customs tribunal will be crucial, as a favorable decision would reinforce the ITC's original ruling and could impact the ongoing appeal. Apple's legal efforts are accompanied by attempts to find technical workarounds, such as software updates that might modify or disable the contested pulse-oximetry feature.

This situation is unusual, as large companies like Apple typically settle such disputes rather than endure prolonged legal battles and sales disruptions. The company's assertive approach may indicate a strategic decision to demonstrate its unwillingness to settle in patent disputes. Apple is also pursuing legal action against Masimo in Delaware district court, alleging infringement by Masimo’s W1 watch.

The appeals court's pause is expected to last around three weeks, coinciding with Customs' decision on the redesigned products. If Apple does not receive a favorable ruling from Customs, it has the option to appeal to the US Court of International Trade and potentially further to the Federal Circuit. This protracted legal battle illustrates the intricate interplay between patent law, technological innovation, and corporate strategy.

Apple’s ‘Unusual’ Watch Fight Continues After Pause on Ban

In 2023, New York's legal scene, often a trendsetter for the U.S. legal industry, experienced significant changes and challenges, raising questions for the year ahead. Two of New York's oldest law firms, Stroock & Stroock & Lavan and Shearman & Sterling, faced major transitions. Stroock is dissolving, while Shearman plans a merger with Allen & Overy, indicating a shift in the legal landscape.

These developments reflect broader industry headwinds such as intense competition for talent, inconsistent client demand, and a slowdown in the global mergers-and-acquisitions market. Consolidation became a notable trend, with numerous law firm mergers throughout 2023, including high-profile combinations like Maynard Cooper & Gale with Nexsen Pruet, and Holland & Knight with Waller Lansden Dortch & Davis. A total of 41 law firm combinations were completed in the first three quarters of 2023, compared to 37 in the same period in 2022.

In response to a slower growth environment and cost pressures, small and regional law firms are expected to pursue more mergers and acquisitions in 2024. Meanwhile, the end of 2023 saw major law firms, starting with New York's Milbank, raising associate salaries, with first-year associates now starting at $225,000. These salary hikes have raised concerns about whether less profitable firms can keep pace.

Another significant shift is occurring in the structure of law firm partnerships. The traditional single-tier partnership model, where all partners share ownership, is dwindling. Firms like Cravath and Paul, Weiss, Rifkind, Wharton & Garrison are reportedly adding or considering salaried partner tiers. However, some firms, like Cleary Gottlieb Steen & Hamilton, are holding onto the single-tier partnership model for now.

These changes mark a transformative period for New York's legal firms, reshaping how they operate, compete, and adapt in a rapidly evolving industry.

New York legal scene faces tests after tumultuous 2023 | Reuters

In 2023, lawsuits against major chemical companies for polluting U.S. drinking water with PFAS, or "forever chemicals," resulted in over $11 billion in settlements. These chemicals, used in numerous consumer and commercial products, are known for their persistence in the environment and human body. With new federal regulations and growing awareness, 2024 is expected to see an increase in litigation and settlements related to PFAS contamination.

Companies like 3M, Chemours, Corteva, and DuPont de Nemours have faced thousands of lawsuits, many consolidated in multidistrict litigation (MDL) in South Carolina. These include claims by water utilities for cleanup costs and personal injury claims linked to health issues caused by PFAS exposure. A significant settlement was reached in June, with 3M and water utilities agreeing to a $10.3 billion settlement, followed by another involving DuPont, Chemours, and Corteva for $1.19 billion.

U.S. District Judge Richard Gergel, overseeing the MDL, has warned that these lawsuits could pose an existential threat to companies facing PFAS claims. The litigation's potential liabilities could lead defendants to settle to avoid large verdicts or seek bankruptcy protection, as seen in the case of Carrier Global subsidiary Kidde-Fenwal Inc in May.

In 2024, legal experts anticipate more PFAS-related lawsuits, including those against consumer brands and more personal injury claims. At least one trial is scheduled in August in the MDL, focusing on firefighting foam manufacturers. Additionally, the process for selecting bellwether trials for personal injury cases is underway, with trials expected for various PFAS-related health issues.

Outside of South Carolina, other trials are anticipated, including one involving North Carolina residents and another by Maine homeowners against a local paper mill. More settlements between chemical firms and state attorneys general are also expected, following the trend set by New Jersey and Ohio in 2023.

The number of consumer class action lawsuits against companies producing PFAS-containing products like clothing, dental floss, and food wrappers is also on the rise. With the EPA moving forward with regulations that could set enforceable limits for PFAS in drinking water and potentially designate some as hazardous under the U.S. Superfund law, a surge in litigation is likely to continue into 2024 and beyond.

‘Forever chemicals’ were everywhere in 2023. Expect more litigation in 2024 | Reuters

The U.S. Federal Trade Commission (FTC) has filed a lawsuit against Grand Canyon University for engaging in deceptive advertising, illegal telemarketing practices, and misrepresenting itself as a nonprofit organization. The lawsuit, filed in the U.S. District Court for the District of Arizona, targets Grand Canyon Education Inc (GCE), its CEO, and the university.

The FTC's complaint alleges that the university misled prospective doctoral students regarding the cost and course requirements of its doctoral programs. It also accuses the university of deceptive and abusive telemarketing practices. The FTC contends that despite claims of being a nonprofit, Grand Canyon University operates for the profit of GCE and its stockholders, with GCE receiving 60% of the university's revenue.

The Arizona-based university has denied these allegations, calling them unsubstantiated, and expressed confusion over the federal government's decision to target a Christian university positively addressing issues in higher education.

This lawsuit follows a significant $37.7 million fine imposed on the university by the U.S. Education Department for misrepresenting the costs of its doctoral programs. According to the Education Department, fewer than 2% of the school's doctoral program graduates completed their program within the advertised cost, and almost 78% of these students took five or more continuation courses. The university has stated its intention to refute the allegations vigorously.

US FTC sues Grand Canyon University for deceptive advertising, illegal telemarketing | Reuters

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at