#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Attias v. CareFirst, Inc.

Docket: 19-7020

Opinion Date: August 11, 2020

Judge: Katsas

Areas of Law: Civil Procedure, Class Action

Plaintiffs filed suit against CareFirst after hackers allegedly stole sensitive customer information from the health insurer's data system, alleging tort, contract, and statutory claims. The district court dismissed all claims of five plaintiffs and most claims of two plaintiffs. At issue was whether the district court permissibly certified the dismissed claims under Federal Rule of Civil Procedure 54(b), so as to make the dismissal order final and immediately appealable. The DC Circuit held that it lacked appellate jurisdiction over the certified claims of the Tringlers and of the other plaintiffs. Under basic principles of claim preclusion, the court explained that the Tringlers could not have litigated to judgment one action involving the claims still pending before the district court and another involving the claims already dismissed. Under Tolson v. United States, 732 F.2d 998, 1001–03 (D.C. Cir. 1984), they likewise cannot sever the latter claims for an immediate appeal under Rule 54(b). In regard to the non-Tringler claims, the court stated that it is unclear whether the district court would have certified these claims for immediate appeal had it properly declined to certify the claims of the Tringlers. Therefore, the court cannot determine whether the district court would have certified only the non-Tringler claims, much less whether it could have come up with a permissible justification for doing so.

Johnson v. Copyright Royalty Board

Docket: 19-1028

Opinion Date: August 11, 2020

Judge: Patricia Ann Millett

Areas of Law: Copyright, Entertainment & Sports Law, Intellectual Property

In these consolidated appeals, appellants challenge the royalty rates and terms established by the Board for the period of January 1, 2018 through December 31, 2022. Appellants challenged numerous aspects of the Board's final determination: the Streaming Services argue that the Board's decision impermissibly applies retroactively; the Streaming Services challenge the Board's rate structure and the specific rates applicable under that structure; the Streaming Services and the Copyright Owners each object to the Board's definition of certain terms; and songwriter George Johnson challenges the Board's acceptance of the Subpart A settlement, as well as its adoption of the final rate structure. The DC Circuit rejected the Streaming Services' retroactivity objection and the challenges brought by the Copyright Owners and George Johnson. However, the court agreed with the Streaming Services that the Board failed to provide adequate notice of the final rate structure, failed to reasonably explain its rejection of the Phonorecords II settlement as a benchmark, and failed to identify under what authority it substantively redefined a term after publishing its initial determination. Accordingly, the court affirmed in part, and vacated and remanded to the Board in part because it failed to give adequate notice or to sufficiently explain critical aspects of its decisionmaking.

Allen v. District of Columbia

Docket: 18-7177

Opinion Date: August 11, 2020

Judge: Katsas

Areas of Law: Education Law, Government & Administrative Law, Legal Ethics

Congress enacted an appropriations rider in 2009 prohibiting the District of Columbia from paying more than $4,000 in attorneys' fees for any past proceeding under the Individuals with Disabilities Education Act (IDEA). At issue in these 11 consolidated cases was whether the District must pay interest on amounts that exceed the payment cap. After determining that the District did not forfeit the interest issue, the court held that the District cannot be compelled to pay interest on the portion of fee awards that it has been legally prohibited from paying off. The court explained that this case implicates a well-established common-law principle: If the law makes a debt unpayable, then interest on the debt is also unpayable. Furthermore, the court had no basis to conclude that 28 U.S.C. 1961(a) abrogated this background rule. The court reversed the district court's judgment requiring payment of interest on above-cap fees, affirmed the district court's judgment in all other respects, and remanded for further proceedings.

National Security Counselors v. Central Intelligence Agency

Docket: 18-5047

Opinion Date: August 11, 2020

Judge: Srikanth Srinivasan

Areas of Law: Government & Administrative Law

This appeal arose from NSC's three lawsuits raising 45 claims against six federal agencies arising out of numerous Freedom of Information Act (FOIA) requests initiated by NSC. Through a series of decisions, the district court ruled in favor of the government on all the claims. In this opinion, the DC Circuit individually addressed three of NSC's claims: two claims concerning distinct FOIA requests made to the CIA and a third claim concerning the DOJ's assertion of attorney-client privilege in response to a FOIA request. The court held that the CIA and the district court correctly concluded that, as drafted, the request for all CIA records pertaining to the IBM supercomputer named Watson called for an unreasonably burdensome search. In regard to the request seeking OLC opinions pertaining to various statutes including FOIA itself, the Privacy Act, and the Federal Records Act, the court held that there was no waiver of the attorney-client privilege with regard to the two OLC opinions at issue. The court did not separately discuss NSC's remaining claims, but found that they lacked merit. Therefore, the court affirmed the district court's judgment in all respects.