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On January 27, 2021, the U.S. Court of International Trade (CIT) issued an opinion in which it dismissed all but one claim challenging on various grounds a proclamation by former President Donald Trump (Proclamation 9980) that imposed 25% tariffs on, inter alia, various imported products made of steel pursuant to Section 232 of the Trade Expansion Act of 1962. However, the CIT will continue to consider the claim that President Trump implemented additional and new duties on certain steel derivative products after the statutory time period for such action had lapsed.

PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, filed a complaint (subsequently amended) in the CIT on February 4, 2020, arguing that President Trumps Proclamation 9980 was unlawful and unconstitutional. See Update of February 14, 2020. On March 20, 2020, the U.S. Department of Justice (DOJ) filed a motion to dismiss the complaint, arguing that the new tariffs did not violate the Section 232 procedural requirements or PrimeSources right to due process. See Update of March 31, 2020.

In its January 27, 2021 order, the CIT dismissed PrimeSources claims that: (i) the imposition of Section 232 duties on the derivative products was procedurally deficient; (ii) the secretary of commerce violated all of the Section 232 statutory provisions; (iii) PrimeSource was deprived of its Fifth Amendment due process constitutional rights; and (iv) Section 232 is unconstitutional as it unlawfully delegates legislative authority from Congress to the president.

The CIT did not dismiss PrimeSources claim that Proclamation 9980 was issued 638 days after the transmittal of the Section 232 steel investigation report to the president (well after the 105 days set forth in 19 U.S.C. 1862(c)(1)) and is thus null and void. Despite DOJ arguing that the president has the authority to modify Section 232 tariffs at any time to protect national security (including adjusting imports of articles not addressed in Proclamation 9705 that the president designated as derivatives of identified steel articles), the CIT found that this claim rests upon a plain meaning interpretation of the statute. The opinion states that DOJs flexible reading of [19 U.S.C. 1862(c)(1)] would require us to interpret the action taken by Proclamation 9980 and that taken by Proclamation 9705 as parts of the same action, which presents several interpretive problems. The opinion concludes that there is no flexible reading of [19 U.S.C. 1862(c)(1)] Section 232(c)(1) that suffices to allow the President to adjust, through new tariffs, imports of derivatives of previously-affected articles outside of the time limits Congress imposed, and the appellate decisions on which defendants rely do not lend support to any such reading.

The parties now have until February 26, 2021, to file a joint schedule that will govern the briefing and hearing schedule for the remaining unresolved factual issues of this claim.

Originally posted here:
CIT Dismisses All but One Claim in Section 232 Steel Tariff Dispute - Lexology

At the beginning of 2020 the Supreme Court appeared poised to take on multiple patent cases, but a series ofcertdenials resulted in only one decision from the High Court in 2020. The Supreme Court avoided entering the Section 101 debate by denyingcertiorarifor a number relevant patent cases includingAthena Diagnostics Inc. v. Mayo Collaborative Services, LLC,No. 19-430 (2020) (IP Update, Vol. 22, No. 2) andChamberlain Group, Inc. v. One World Techs., Inc., No. 19-1299 (2019) (IP Update, Jan. 2020). The Court also deniedcertin various cases relating to whether the America Invents Act (AIA) violates the Takings Clause of the Fifth Amendment, includingCollabo Innovations v. Sony Corp.No. 19-601 (2019) (IP Law Year in Review 2019).

The only patent decision to come from the Supreme Court in 2020 wasThryv, Inc. v. Click-to-Call Techs., LP, 590 US ___ (2020), in which the Court held that 35 USC 314(d) precludes judicial review of the Patent Trial and Appeals Boards (PTAB)application of 315(b)s one-year time bar. The Court largely reiterated its reasoning inCuozzo Speed Techs., LLC v. Lee, 579 US ___ (2016) (IP Update,Vol. 19, No. 7) stating that because the 315(b) time bar is closely tied to the application and interpretation of statutes related to the institution determination, a party may not appeal the PTABs application of the one-year time bar of 315(b). In a lengthy dissent, Justice Neil Gorsuch argued that 314(d)s prohibition on appeal applied only to the subsections under this section of 314, as explicitly stated in the text of the statute, especially given the strong presumption

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2020 at the Supreme Court - Lexology

Brad Petrishen|Telegram & Gazette

WORCESTER A former Rutland police officer serving 28 years in jail on two rape convictions has been denied a bid for a retrial he requested in November.

Jason D. Briddon, who was 40 when sentenced on the second of two rape convictions in 2012, would not have prevailed had his wife been asked to testify as an alibi, a judge ruled, because she would not have testified on account of perjury concerns.

It took two trials for a jury to convict Briddon in his second rape case, which centered on allegations Briddon raped a woman he met at a bar in 2007.

Briddons wife had testified as his alibi in the first trial thatended in mistrial but by the second trial, the two were in a contentious divorce, and Briddons lawyer, David R. Yannetti, elected not to call her.

Briddon argued Yannettis decision was a mistake, noting that he didnt bother to reach out to the wife to see whether she would, again, testify as an alibi at the second trial.

The state appeals court agreed, and ordered Worcester Superior Court Judge Daniel M. Wrenn to determine whether the wifes testimony might have proved helpful.

In a Jan. 26 ruling he wrote after hearing from the wife in a closed-door hearing, Wrenn said the woman would not have testified at a second trial because of perjury concerns.

Had (she) been subpoenaed to testify at the (second) trial as an alibi witness she would have invoked her fifth amendment privilege based on her concern of facing potential perjury charges with regard to her testimony at the first trial, Wrenn wrote.

The woman had testified at the first trial that Briddon had come home around 3 a.m. the night in question, which conflicted with the time frame the rape victim had detailed.

Wrenn also noted that because the wife had testified untruthfully at the first trial, his lawyer would have been precluded from introducing that testimony at the second trial in 2012 if he was aware it was untruthful.

Briddons 2012 conviction led to an 18-to-20-year sentence from Judge John S. McCann, who remarked at the time that Briddon took an oath "to protect society and not to rape one of its citizens.

That sentence is to run after a separate, 10-to-12-year sentence Briddon received in 2010 after being found guilty of beating and raping a prostitute in 2008.

Briddon worked as a part-time police officer in Rutland for about three years, and was employed there at the time of the 2008 rape, records show.

Link:
Former Rutland cop denied new rape trial after ex-wife, citing perjury concern, declines to provide alibi - Worcester Telegram

Update:

Key Points:

Background

On September 22, 2020, the Trump administration issued EO 13950 prohibiting federal agencies, federal grant recipients, and federal contractors from endorsing divisive race and gender concepts as we discussed in our commentary on October 6, 2020. EO 13950 forbids diversity and inclusion training that promotes or endorses divisive concepts as defined in EO 13950. On December 22, 2020, the U.S. District Court, Northern District of California granted Plaintiffs motion for a preliminary injunction in part and issued an Order in Santa Cruz Lesbian and Gay Community Center, et al, v Donald J. Trump, et al., imposing a nationwide preliminary injunction that enjoins the federal agencies named as Defendants (federal government) from enforcing EO 13950s provisions under 4, directed at federal contractors, and 5, directed at federal grant recipients. The Order is effective immediately and directs the federal government to provide notice to all federal contractors and grant recipients as well as sub-contractors and sub-grantees covered by EO 13950 of the injunction imposed by the Courts Order.

Basis of the Courts Order

The Plaintiffs in this class-action lawsuit are non-profit organizations and a subcontractor that provide health care and critical services to the lesbian, gay, bisexual and transgender community and people living with the human immunodeficiency virus (HIV). Plaintiffs claim that EO 13950 violates their rights under the Free Speech clause of the First Amendment because it impermissibly chills the exercise of constitutionally protected speech based on the content and viewpoint of their speech and violates their rights under the Due Process clause of the Fifth Amendment because EO 13950 infringes on their protected right to free speech and fails to provide adequate notice of the conduct it purports to prohibit.

The Court agreed that Plaintiffs are likely to prevail on their claim that EO 13950 violates their First Amendment rights because:

Regarding Plaintiffs claims of due process violations under the Fifth Amendment, the Court agreed that the vagueness of the prohibited conduct inhibits the exercise of Plaintiffs freedom of expression and that the federal governments own interpretation of the scope of the prohibited conduct creates even more uncertainty. It concluded that the Plaintiffs established a significant adverse impact on their organizations and clients as a result of the loss of opportunities and income based on Plaintiffs and their clients understanding of the effect of EO 13950. The Court noted that the federal governments dislike of the speech at issue, while irrelevant to the analysis, permeated its briefs.

EO 13950 Provisions Enjoined by Court's Order

The Order explicitly bars the federal government from taking any action intended to effectuate or enforce 4 and 5 of EO 13950, including but not limited to the specific actions enumerated in the Courts Order. The Courts Order specifically prohibits the federal government from taking the following actions:

Workplace training: The federal government is prohibited from requiring the inclusion of express provisions in government contracts that prohibit the discussion of concepts defined as divisive race and gender concepts in workplace training programs, and from enforcing such express provisions that have been included in government contracts since the issuance of EO 13950.

Notice requirements to labor representatives and unions: All notice requirements imposed on federal contractors to labor unions or employee representatives are enjoined.

Penalties and enforcement procedures based on non-compliance: The federal government is prohibited from imposing sanctions, including but not limited to canceling, terminating or suspending a contractors or subcontractors federal contract in whole or in part, or declaring a contractor or subcontractor ineligible for federal contract awards.

Mandatory flow-down contract clauses: The federal government is prohibited from requiring contractors to include a contract clause prohibiting divisive race and gender concepts in subcontracts and supply agreements with subcontractors and vendors that provide services and supplies under the contract. Contractors also cannot be required to enforce such contract clauses against subcontractors and vendors.

Collecting information and investigating non-compliance: The federal government is precluded from initiating investigations, taking other agency action to implement EO 13950, and taking enforcement actions under EO 13950 and is barred from using its hotline to collect information regarding non-compliance with the provisions of EO 13950.

Requests for Information: The federal government is enjoined from seeking all information from any entity regarding training, workshops or programming provided to employees of government contractors and subcontractors with respect to the provisions of EO 13950 and related regulations issued by the Office of Federal Contract Compliance Programs (OFCCP).

Requirements applicable to federal grant recipients: The federal government is proscribed from:

What this means to you

The Courts nationwide injunction has delayed the investigative and compliance actions and enforcement actions authorized under EO 13950. The election of Joe Biden will likely result in President-elect Biden overturning EO 13950 shortly after taking office on January 20, 2021. As a result, the prohibitions, compliance actions, requests for information and enforcement actions imposed on federal contractors and federal grantees under EO 13950 and by the OFFCP are in abeyance until either the injunction is made permanent or lifted, or the executive order is overturned. The federal governments hotline established to receive complaints regarding violations of EO 13950, states that it is no longer accepting complaints in accordance with the Courts December 22, 2020 Order. It does allow callers to continue to leave messages and refers callers who desire to file complaints of discrimination to another phone number or to a page on their website.

[View source.]

Go here to read the rest:
Federal Judge Bars Enforcement Of EO Related To Diversity Training - UPDATED - JD Supra

San Antonio venue owners can attest that the live performance industry has been among those hardest hit by the coronavirus pandemic. Bans on large gatherings shut venues down in the spring and when they were later allowed to reopen by state governments, it was under crippling capacity restrictions.

You couldnt have anything more dire, said Blayne Tucker of the situation faced by live performance venues across the nation. Tucker owns The Mix music club and bar on the St. Marys Strip and is an active industry advocate.

The first round of federal coronavirus relief included the employee-focused Paycheck Protection Program (PPP), but with performances still impossible in many cases due to a lack of the touring acts many venues depend on, it made little sense to keep people employed.

Tucker and other venue operators throughout the country recognized the specific problems faced by live performance venues early on and banded together to seek solutions as the National Independent Venue Association (NIVA). Their work produced the Save Our Stages (SOS) Act introduced to Congress in July, an emergency relief funding program with provisions specific to the live performance industry. Along with other potential relief, the SOS Act would languish in a stymied Congress.

Dec. 27, Just before the original CARES Act was set to expire, a new economic stimulus package was signed into law. The SOS Act was included as the Shuttered Venue Operators Grant program administered by the U.S. Small Business Administration (SBA), which will dedicate $15 billion to help performance venues nationwide survive the uncertain months ahead.

A wide range of venues, organizations, and individuals will be eligible for the new grant funds, including live performance venue operators and promoters, performing arts organizations, theatrical producers, talent representatives, motion picture theatre operators, and some nonprofit museums.

This is really a make or break for the industry, Tucker said, while lamenting venues that have already closed permanently including notable Austin music clubs and Margin Walker Presents, a promoter of touring acts for several San Antonio venues, that would have been eligible for relief funding.

Tucker pointed out that potentially months of uncertainty remain, with already-suffering venues nearing the brink. We dont really know necessarily when the finish line is here. This is a great step toward providing some relief to an industry that needed it, but I dont think were out of the woods yet.

Venues are eligible for funds up to $10 million depending on annual revenue, and range from small music clubs such as The Mix, Paper Tiger, and the Lonesome Rose, to black box theaters such as Jump-Start Performance Co. and the Classic Theatre, to larger concert halls, theaters, and producers including the Majestic Theatre and the Tobin Center for the Performing Arts and its resident companies such as the San Antonio Symphony.

Stipulations intended to focus on smaller, locally-based venues include a limit of 500 or fewer full-time employees, and locations operating in no more than 10 states. The amount of grant funds available to each venue will equal 45% of 2019 gross earned revenue.

Applications are not yet open, though the SBA is preparing workshops in advance of opening its two-tiered application process, expected to roll out in early- to mid-February.

Eligibility requirements are fairly strict, in keeping with the programs goals of supporting venues that base most of their income and activity around live performance, Tucker said.

Working with Dana Frank, owner of the First Avenue music club in Minneapolis and NIVA president, Tucker helped advise on program provisions that define eligibility to ensure funds will be distributed first to those venues most in need, and that set aside $2 billion of the $15 billion fund specifically for what he called mom and pop venues that employ 50 or fewer full-time employees.

Once the program officially opens, the first two-week application tier is intended for venues that have lost 90% or more of revenue between April 1 to Dec. 31, 2020, as compared to 2019 revenue for the same period, and the second two-week tier is for applicants that have lost revenues of 70% or more. After that, any eligible venue or organization can apply.

Mike Fresher, Tobin Center president and CEO, said the grant funds would make a world of difference to the performing arts hall, which he estimates has suffered $15 million in lost revenue during 2020. That amount would mean the Tobin could recoup $6.75 million from the program to help in keeping all our employees employed and things moving forward, he said.

Fresher is waiting to learn more specifics on what income qualifies as revenue for the program, and whether the second round of PPP in the stimulus package would benefit the Tobin Center more than the Shuttered Venue Operators grants.

Tobin Center resident company the San Antonio Symphony is also waiting to learn more about the grants, according to Corey Cowart, its executive director. Venues cannot receive both a second round of PPP funds and Shuttered Venues grants.

Cowart said the fact that banks already have the experience of distributing one round of PPP funds makes that option attractive, but what will ultimately decide which program works best for the Symphony is what the math looks like.

The Lonesome Rose honky-tonk will be applying in the second tier, according to co-owner Hillary Woodhouse. The venue has been able to open its large backyard patio for occasional music events, but overall has lost in the range of 70% in revenue as compared to the previous year.

Previous small grants have enabled the owners to pay rent during the closure, but any additional money is going to help us ensure that we stay open for the future, Woodhouse said.

The club has had no break on rent, she said, and has stopped booking shows for the moment due to the uncertainties of winter weather. Earlier grants have helped keep the bar afloat, she said. Were really grateful to be still here. I think itd be a shame [if we had to close] because theres nothing else really like us, Woodhouse said of her venue that focuses on Texas music.

Tucker said Texas played a key role in getting the legislation through Congress, despite a traditional resistance in the state toward government aid and bailouts. An argument for help based on the Fifth Amendment might have made the difference. The amendments takings clause stipulates just compensation when private entities suffer losses on behalf of the public good.

That approach in part won the support of key Texas Republicans Sen. John Cornyn (R-Texas) and Rep. Roger Williams (R-Austin), who penned an initial letter of support in May, then ultimately co-sponsored the bill alongside Democrats Sen. Amy Klobuchar of Minnesota and U.S. Rep. Peter Welch of Vermont, in a rare show of true bipartisanship.

It was a nationwide effort, among all my colleagues in different states, Tucker said. But Texas really came through in taking the lead on making this happen. Tucker also said the issue bridges the divide between traditionally Democratic-leaning cities and traditionally Republican-leaning rural areas, both of which depend on thriving music and performance venues for entertainment.

Now that the funding is on its way, Tucker said its the difference between an entire industry permanently shuttering and giving it some relief.

According to music industry magazine Billboard, venue operators interested in applying can prepare by pulling together information about monthly revenues and a list of how you would use funds if awarded them, with a reminder to contact local SBA district offices for additional help.

A Jan. 14 SBA webinar, available for viewing on YouTube, also explains the provisions of the grant program.

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Federal relief for live performance venues finally on the horizon - San Antonio Report