Minimum Competence - Daily Legal News Podcast
Minimum Competence
Thurs 7/20 - Cotton v. DEI, DoorDash Hourly Wages, Gun Advocates v. MA, Trump stuck in state court and Elon's Emails

Thurs 7/20 - Cotton v. DEI, DoorDash Hourly Wages, Gun Advocates v. MA, Trump stuck in state court and Elon's Emails

Cotton threatening Big Law DEI initiatives, DoorDash goes hourly wage, gun rights advocates challenge MA law, Trump fails to get case moved to federal court and Tesla to to turn over Elon's emails.

On this day in history, July 20, 1990, Supreme Court Justice William Brennan retired. 

William Joseph Brennan Jr., an influential American jurist, served as an Associate Justice on the Supreme Court of the United States from 1956 until 1990, making him the seventh-longest serving justice in history. To add some color to that run, he was appointed by President Eisenhower and his successor was appointed by George H. W. Bush. Brennan, originally from Newark, New Jersey, pursued economics at the University of Pennsylvania before studying at Harvard Law School, later practicing law privately in New Jersey and serving in the U.S. Army during WWII. He was appointed to the Supreme Court of New Jersey in 1951 and was placed on the Supreme Court by President Dwight D. Eisenhower in 1956 via a recess appointment.

On the Supreme Court, Brennan was recognized for his progressive stance, opposing the death penalty, advocating for abortion and gay rights, and dissenting in over 1,400 cases where the court declined to review a death sentence. Brennan penned several landmark case opinions such as Baker v. Carr, Eisenstadt v. Baird, Craig v. Boren, and New York Times Co. v. Sullivan, significantly influencing American jurisprudence. His ability to negotiate votes and shape varied opinions led to his recognition as one of the court's most influential members, with Justice Antonin Scalia naming him "probably the most influential Justice of the [20th] century." He retired in 1990 and was succeeded by David Souter. Justice Brennan passed away in 1997 

Senator Tom Cotton, a prominent critic of progressive initiatives, has cautioned law firms and their clients regarding their use of Diversity, Equity, and Inclusion (DEI) programs. Following the US Supreme Court's decision to nullify affirmative action in higher education institutions, the Arkansas Republican issued warnings to 51 national and global law firms, stating that their continued endorsement of DEI programs could potentially breach federal law. Cotton, who sits on the Senate Judiciary Committee, predicted that both Congress and private entities would use their respective powers to examine the surge in race-based employment practices.

He also communicated to the firms, including Allen & Overy, Greenberg Traurig, and Hogan Lovells, that they should be prepared to answer to Congress if they persist with race-based programs. The notice extended beyond law firms, with Republican Attorneys General from several states also cautioning Fortune 100 CEOs against racially motivated hiring and recruitment practices. Cotton has previously issued similar warnings, including a communication to Target's CEO, advising against the company's DEI practices. Alongside other Republicans, Cotton had issued a warning in November to the same law firms concerning the risks associated with their Environmental, Social, and Governance practices.

Big Law’s Diversity Efforts May Be Illegal, GOP Senator Warns

DoorDash Inc., a major player in the gig economy, is testing a new hourly wage option for its drivers, which could potentially reshape their classification under federal labor laws. Currently, most gig economy companies, including DoorDash, categorize their workers as independent contractors, who do not receive the same protections as employees under federal employment laws. This new pay model might suggest DoorDash exercises a significant amount of control over its drivers, a key factor in determining whether a worker is an employee or a contractor.

DoorDash maintains that the new payment structure gives drivers more choices and control over their pay, signifying an independent contractor status. This comes amidst ongoing debates about worker classification, with claims that companies exploit the independent contractor model to avoid the obligations associated with hiring employees.

It's worth noting that both the Internal Revenue Service and the Department of Labor (DOL) suggest hourly pay may indicate an employment relationship. This discussion arises as the Biden administration seeks to define the independent contractor status under federal wage laws. However, it's too early to predict how the DOL or courts will interpret DoorDash's move and what influence it might have on other gig economy companies.

DoorDash Tests Gig-Economy Model With New Hourly Wage Option

Gun rights advocates are challenging Massachusetts' firearm regulations, sparking scrutiny from the US Supreme Court. These challenges follow last year's Supreme Court decision, New York State Rifles & Pistol Association Inc. v. Bruen, which altered how firearms laws are evaluated and left many questions unresolved. Four active suits are currently testing the interpretation of this decision.

In one case, Granata v. Healey, gun owners and manufacturers are challenging the state's restrictions on malfunctioning handguns. Another case seeks to have Massachusetts' ban on assault weapons and large-capacity magazines declared unconstitutional.

At the state level, one lawsuit argues that the law allowing a licensing authority to revoke a person's gun license if it deems them unsuitable is too vague under Bruen. Another case aims to apply Bruen's test to the state's law prohibiting people from carrying switchblades.

The Supreme Court has agreed to hear United States v. Rahimi, a case concerning the constitutionality of a federal law barring persons subject to a domestic-violence restraining order from possessing guns. This case could provide more guidance on the implementation of Bruen. However, attorneys note that it will take years for courts to refine Bruen's boundaries, and many details, especially concerning weapons that did not exist in the 18th century, remain unresolved.

Gun Rights Battles Brew in Massachusetts in Supreme Court’s Wake

A U.S. judge has denied former President Donald Trump's attempt to move his criminal case from New York state court to federal court. The case is related to hush money payments made to porn star Stormy Daniels before the 2016 presidential election. Trump was indicted in April in Manhattan on 34 counts of falsifying business records to conceal a $130,000 payment to Daniels, facilitated by his then-lawyer Michael Cohen.

Trump, currently a front-runner for the 2024 Republican presidential nomination, argued that the case should be in federal court as it relates to his 2016 presidency and involves federal election law. However, Judge Alvin Hellerstein refuted these claims, stating that the case involves a personal matter unrelated to Trump's official acts as president.

The judge also dismissed the argument that Trump has immunity and that the state charges were pre-empted because they were intended to defraud the voting public during a federal election. Trump's trial is set for March 2024 in the New York State Supreme Court, and it is yet to be confirmed whether he will appeal. Trump continues to argue that the case is politically motivated.

Trump loses bid to move New York hush-money case to federal court | Reuters

Tesla has been instructed to turn over some of CEO Elon Musk's emails to JPMorgan Chase as part of an ongoing lawsuit. The case originates from a dispute over a bond contract that came about after Musk's 2018 tweet about potentially taking Tesla private. JPMorgan claims that Musk communicated about this plan through his SpaceX account. The bank has accused Tesla of breaching a 2014 contract related to stock warrants that it sold to JPMorgan, which it alleges increased in value due to Musk's tweet.

The bank has sued Tesla for $162.2 million, arguing it had to reprice the warrants after Musk's tweet, and the subsequent increase in Tesla's stock price necessitated payments that Tesla has not made. Tesla counter-sued JPMorgan, accusing the bank of seeking a "windfall" when it repriced the warrants.

Musk, who bought Twitter for $44 billion in 2021, agreed as part of a 2018 deal with the U.S. Securities and Exchange Commission to get preapproval for certain tweets from a Tesla lawyer. His attempt to terminate this agreement is currently being considered by a federal appeals court.

Tesla to hand over Musk's emails to JPMorgan in lawsuit over 2018 tweet | 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