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In Dawson v. Merck & Co., Inc., decided Monday by Magistrate Judge Peggy Kuo (E.D.N.Y.), Reuters sought to unseal exhibits accompanying a Nov. 2017 Daubert evidentiary motion filed in a drug liability lawsuit (related to Propecia); the lawsuit had been settled in Sept. 2018, and Reuters asked to unseal the document in Sept. 2019.

The court concluded that the documents were presumptively supposed to be open, because they were related to a summary judgment motion; and the court concluded that the settlement didn’t change that. Here’s the key passage:

Once filed on the docket, the presumption of access attaches to a document and does not disappear. To conclude otherwise would permit the parties in a case to summarily close the curtain on the public’s view into the judicial branch of government without the court’s ability to weigh the presumption of access against any countervailing interests. The continuing presumption of access allows the public to see what is going into the sausage factory, even if a particular sausage is never made.

For watchdogs who focus not on the immediate news of the day but take a longer view of the judicial process, the Court’s ruling alleviates the need to constantly monitor docket filings in real-time and race to make requests to unseal before the parties settle. Reuters claims to be in such a situation, as it seeks information in the Documents for reporting not only on Propecia but also the role that courts have played in the course of the years-long nationwide litigation concerning the drug. (See Reuters Article “Court let Merck hide secrets about a popular drug’s risks.”)

Even in a fast-moving world, a presumptive right to access should not be fleeting, lasting only as long as the parties wish it to exist. The disappearance of a case or controversy for the court to decide does not mean that its existence at some point and the parties’ conduct of that dispute are no longer newsworthy.

And the broader discussion:

Defendants … argue that because the case had already settled, the court could no longer render any decision on the motion for which the Documents were filed, and the Documents cannot be judicial documents. Defendants rely heavily on Giuffre v. Maxwell, No. 15-CV-7433 (LAP), 2020 WL 133570 (S.D.N.Y. Jan. 13, 2020), reconsideration denied, 2020 WL 917057 (S.D.N.Y. Feb. 26, 2020). The district court in Giuffre held that documents filed in support of undecided motions in a settled case were not judicial documents. The court reasoned that “[t]he essence of the judicial power is … adjudicative” and because the case had settled by the time the motion to unseal was filed, “[a]ll disputes regarding the underlying merits of the action have been rendered moot by the settlement.” Lacking “clear guidance from the Court of Appeals,” the court in Giuffre “cho[se] the path that adheres most closely to the overarching purpose of the presumption of public access. That is, the presumption exists to monitor judicial decision-making.” It concluded that, “[w]ith respect to motions left undecided by [the district judge], there was never, and now never can be, a judicial decision-making process that would trigger the public’s right to access the undecided motions and the documents relevant to them.” The court accordingly found that the motion papers were not judicial documents and denied the request to unseal them.

Reuters argues that Giuffre is contrary to “well-established Second Circuit precedent,” and that “[t]he documents attached to the parties’ Daubert briefing were ‘judicial documents’ at the moment they were filed with this Court, and they did not lose this status merely because the case settled without a decision on the motion.” Ruling otherwise “would lead to the absurd result that a media organization that intervenes prior to settlement would be entitled to a First Amendment presumption of access, while the same entity, seeking the exact same documents, would be entitled to a lesser presumption after the case has settled.”

While the Second Circuit has not expressly addressed the precise timing question here—whether documents filed in connection with an undecided motion retain their status as judicial documents after the parties settle the case—it has held that a “presumption of immediate public access attaches…” upon filing of a judicial document. Thus, the Court has held that a judicial decision is not a prerequisite to finding a presumptive right of public access.

The Second Circuit has also found that a complaint remains a judicial document after settlement even if it was not the subject of a judicial opinion. In support of that conclusion, the Second Circuit reasoned that, “[e]ven in the settlement context, the inspection of pleadings allows ‘the public [to] discern the prevalence of certain types of cases, the nature of the parties to particular kinds of actions, information about the settlement rates in different areas of law, and the types of materials that are likely to be sealed.'” These insights into the judicial process are essential to the public’s understanding of, and ability to monitor, the functioning of the judiciary, even though no actual or potential judicial decision-making is involved.

Although documents in connection with motions are not as central to a case as pleadings, the factors the Second Circuit … identified as favoring the post-settlement survival of the presumption of access for pleadings apply with similar force to motions.

Here, the parties invoked the court’s decision-making authority to adjudicate the Daubert Motion, and Plaintiff filed the Documents in an attempt to persuade the court of his position. “Simply because the parties later filed a stipulation of dismissal does not mean that the parties did not invoke the judicial power upon the initial filing of these documents.”

Once filed on the docket, the presumption of access attaches to a document and does not disappear. To conclude otherwise would permit the parties in a case to summarily close the curtain on the public’s view into the judicial branch of government without the court’s ability to weigh the presumption of access against any countervailing interests. The continuing presumption of access allows the public to see what is going into the sausage factory, even if a particular sausage is never made.

For watchdogs who focus not on the immediate news of the day but take a longer view of the judicial process, the Court’s ruling alleviates the need to constantly monitor docket filings in real-time and race to make requests to unseal before the parties settle. Reuters claims to be in such a situation, as it seeks information in the Documents for reporting not only on Propecia but also the role that courts have played in the course of the years-long nationwide litigation concerning the drug. (See Reuters Article “Court let Merck hide secrets about a popular drug’s risks.”)

Even in a fast-moving world, a presumptive right to access should not be fleeting, lasting only as long as the parties wish it to exist. The disappearance of a case or controversy for the court to decide does not mean that its existence at some point and the parties’ conduct of that dispute are no longer newsworthy.

Accordingly, the Court finds that the Documents are judicial documents to which a presumption of access immediately attached and remains attached notwithstanding settlement by the parties.

The court then concluded that there was no basis for the documents to remain sealed, despite the defendants’ claims that they contained confidential business information.

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For much of the last six years, there has been several Texas v. United States cases floating around the federal courts. In each dispute, Texas has asserted that the federal government’s enforcement of immigration law was unlawful. The latest case, which I flagged on Friday, challenges the Biden administration’s 100 day moratorium on deportations.

Today, a federal judge in the Southern District of Texas has issued the first nationwide injunction against the Biden Administration. Co-blogger Sam Bray wrote about the scope of that injunction. Here, I’d like to flag the Court’s “arbitrary and capricious” analysis.

Texas argued that the January 20 memorandum was issued “without any consideration whatsoever of a [more limited] policy.” And, Texas favorably cited Chief Justice Roberts’s DACA decision. Last June, Regents seemed like a John Roberts special to stop the Trump Administration. It very well may have been. But now, lower courts have been charged with Monday-morning-quarterbacking every change in executive-branch policy.

The federal court in Texas has found that the Biden administration did not engage in “reasoned decision-making” to impose a 100-day moratorium on deportations:

Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations. The January 20 Memorandum states that the 100-day pause is required to assess immigration policies because of the “unique circumstances” present with respect to immigration, including “significant operational challenges at the southwest border as [the United States] is confronting the most serious global public health crisis in a century.” (Dkt. No. 2-2 at 2). DHS specifically cites to its apparent (1) need for a comprehensive review of enforcement policies, (2) need for interim civil enforcement guidelines, and (3) “limited resources” that would necessitate a pause in executing removal orders. (Id. at 2–5). Additionally, the January 20 Memorandum states that the 100-day pause in deportations is necessary to “(1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact.” (Id. at 3). The January 20 Memorandum also provides that DHS “must ensure that [the agency’s] removal resources are directed to the Department’s highest enforcement priorities.” (Id.). DHS, however, never explains how the pause in removals helps accomplish these goals. It remains unknown why a 100-day pause is needed given the allegedly “unique circumstances” to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of “reasoned decision-making.” Allentown Mack Sales, 522 U.S. at 374, 118 S.Ct. at 826. 

Regents may have been a pyrrhic victory for progressives.

Will John Roberts stay true to his 2020 posture in 2021? We’ll see when the Acting Solicitor General files her first stay application in the next few days. (I am presuming the 5th Circuit denies mandamus). The government will have to move quickly, as this TRO expires in 14 days.

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House and Senate Democrats on Tuesday reintroduced a bill to raise the federal minimum wage to $15 an hour by 2025, more than doubling the current $7.25 hourly rate.

The House reportedly plans to include the measure in its upcoming COVID-19 relief legislation. The main problem: That would provide the polar opposite of relief to businesses buckling under the weight of COVID-19 and the associated government lockdowns.

As has been the case over the past year, the congressional aid package is, in part, supposed to resuscitate livelihoods decimated by state-required closures and restrictions. It’s richly ironic that a heightened minimum wage would be yet another mandate that business-owners might need help counteracting. Relief from the relief.

As of September 2020, 100,000 businesses that initially shuttered temporarily were declared dead, a number that has surely expanded through the COVID-19 winter surge. Many other establishments are on their deathbeds. The life support—named the Raise the Wage Act of 2021—could very well do them in, akin to replacing a diabetic’s insulin with a sugary drink and hoping for the best.

The debate around the minimum wage has been muddled by polarized voices on both the left and the right, who struggle to admit that the issue doesn’t fit neatly into a binary. Indeed, studies over the past several years come to entirely different conclusions about the minimum wage’s impact, allowing readers to manipulate the data as they search for the conclusions of their choice.

It was with that mindset that the National Bureau of Economic Research surveyed the existing literature in search of a more concrete understanding. Its main conclusions: There is “a clear preponderance of negative estimates” related to the minimum wage and those effects are “stronger for teens and young adults as well as the less-educated.”

In other words, of course some workers will make more under a higher federal minimum wage. Others, too, will break even or make less as they see their hours reduced, and some still will lose their jobs entirely. The latter group is made up of the lowest-skilled workers—the most vulnerable, and the targets of most Democratic pieces of legislation.

Effects on individual workers and effects on small businesses themselves are, to some extent, mutually inclusive. A stratospheric minimum-wage hike would put yet another financial strain on those businesses, whose owners would have to shoulder a massive increase in labor costs during a time when many entrepreneurs are just hoping they can keep their doors open another day. It might be nice to see a bump in pay, though that benefit evaporates if your employer’s operation no longer exists.

President Joe Biden disagrees. During the final presidential debate, he posited that increasing the minimum wage by more than 100 percent would help small businesses, though he did not explain the particulars. One glaring question: Rural America isn’t operating with the same resources as those in New York City, and states and localities can set their own minimum wages. Why the machete instead of the scalpel?

The bill would also do away with the tipped minimum wage—a lower hourly sum, augmented with gratuity, used in restaurants and other limited service industries. Washington, D.C., attempted to eradicate its tipped minimum in the summer of 2018, though lawmakers overturned that after an outcry from tipped workers themselves, many of whom noted they make far more in tips than they ever would with a minimum wage.

Such a move is particularly inconvenient for this moment, with restaurant patronage hit particularly hard by the pandemic. Danny Meyer, who famously led the way in blitzing gratuities at his New York restaurants, announced in July that he would reintroduce them.

The Democrats’ measure is unlikely to pass in conventional fashion, as it would require the votes of at least 10 Senate Republican to overcome the filibuster. Sen. Bernie Sanders (I–Vt.) said instead that they will pursue a backroad and seek to make it law via budget reconciliation, though the restrictions on that process make success there unlikely as well.

Sanders is undeterred. “Let’s be clear. The $7.25 an hour federal minimum wage is a starvation wage,” he said in a statement. “No person in America can make it on $8, $10, or $12 an hour.” There are a few problems there. The foremost: It’s even harder to make it on $0 an hour.

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President Joe Biden issued an executive order today to phase out the Justice Department’s use of private prisons.

As part of what the White House dubbed “equity day,” Biden signed an order directing the Justice Department not to renew contracts with private prisons, which have long been a target of criminal justice reform advocates.

“Mass incarceration imposes significant costs on our society and communities, while private prisons profiteer off of federal prisoners in less safe conditions for prisoners and correctional officers alike,” the White House said in a fact sheet, according to Reuters.

Civil liberties and criminal justice groups applauded the order, although it was far from their most significant demands of the new administration, which include ending the federal death penalty and ending solitary confinement.

“Today’s executive order validates something we’ve been saying for years: No one should profit from the human misery that is caused by mass incarceration,” David Fathi, director of the American Civil Liberties Union’s national prison project, said in a press release. “Prison privatization increases the potential for mistreatment and abuse of incarcerated people, and this move by the Biden administration will start curtailing this insidious practice.”

In the grand scheme of the U.S. criminal justice system, the order will not have a significant impact. State prison systems hold the majority of the roughly 2.3 million incarcerated people in the country. And of the federal prison population, only 15 percent are held in private prisons.

Fathi noted that Biden’s order will not touch the Department of Homeland Security, which oversees the immigration detention system, nor the private contractors the Bureau of Prisons (BOP) uses for other services, such as medical care. Fathi said that while today’s order is a good first step, “President Biden has an obligation to do more, especially given his history and promises.”

Nor are private prisons the source of the most pressing problems within the federal prison system. Even before the COVID-19 pandemic struck, the BOP was under severe stress due to chronic understaffing, which led to nurses and cooks being pressed into guard duty. There were also persistent problems with corruption, sexual assault, medical neglect, and low staff morale, not to mention the embarrassing death of disgraced financier Jeffrey Epstein in a Manhattan jail.

Reason reported last year on a string of deaths due to alleged medical neglect at FCI Aliceville, a federal women’s prison in Alabama.

The pandemic put all of these problems into even sharper relief, as the federal prison system struggled, and failed, to adequately protect incarcerated people and staff. 

CNN also reported that Biden will sign an executive order reinstating Obama-era limits on the transfer of military equipment to local and state law enforcement. The Pentagon’s 1033 program distributes surplus military equipment to police. Most of those items are mundane things like cold-weather gloves and filing cabinets.

Amid national outrage over images of militarized police in Ferguson, Missouri, the Obama administration limited the program in 2015, prohibiting the transfer of such items as camouflage, .50-caliber ammunition, tracked armored vehicles, grenade launchers, and bayonets. Police departments in possession of these items were asked to return them.

President Donald Trump, who portrayed himself as a staunch ally of the police, rescinded the Obama memo, including tighter reporting requirements, in 2017.

A Brown University study published last year found that the Department of Defense’s (DOD) 1033 program has transferred at least $1.6 billion worth of equipment to police departments across the country since 9/11, compared to just $27 million before the terrorist attack. That equipment includes mine-resistant, armored-protective vehicles, or MRAPs, which are hulking, armored personnel carriers designed to survive bomb blasts on the roads of Iraq and Afghanistan. Thanks to the 1033 program, 1,114 MRAPs are currently in the possession of American police departments. 

The 1033 program is not the most significant federal source of police militarization, though. The program is dwarfed by Department of Homeland Security anti-terrorism grants to local police, as well as shared revenue from property seizures and forfeitures.

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A federal court has ordered Florida law enforcement officials to destroy video footage allegedly featuring New England Patriots owner Robert Kraft and other men getting hand jobs from women the state would go on to convict and seize assets from.

State prosecutors had argued against destruction of the 2019 video on the grounds that the footage might be relevant to an ongoing federal lawsuit brought by patrons who were not charged with criminal spa visits. That group of unnamed plaintiffs allege that “they were innocent Spa patrons and were recorded unclothed,” State Attorney David Aronberg wrote in a December 30 motion. However, “the State believes it is simply a matter of time until the federal lawsuit will eventually be dismissed on the bases [sic] of absolute prosecutor immunity, qualified immunity, and the failure to state a claim,” Aronberg added.

By now, multiple state judges have forbid prosecutors from using the footage that was secretly obtained from Orchids of Asia Day Spa—a massage business in Jupiter, Florida, that authorities shut down as part of a purported human trafficking sting.

Yet Kraft and other patrons were only ever accused of paying for sexual massages from adult women who were all licensed masseuses, legal immigrants, and willing employees of Orchids of Asia. Criminal cases against Kraft and other patrons were eventually dismissed, though the women they patronized were convicted on felony charges.

Still, State Attorney Aronberg sought permission to hold on to the unlawfully obtained video footage.

Judge Rodolfo A. Ruiz II of the U.S. District Court for the Southern District of Florida has now ordered the destruction of the Orchids of Asia video footage. That action came about in response to a lawsuit filed by “John Doe, on behalf of himself and all others similarly situated,” against Aronberg, the town of Jupiter, the Jupiter Police Department, and detective Andrew Sharp, who applied for the warrant to install the surveillance cameras.

In his January 22 order, Ruiz granted John Doe’s motion to compel destruction of the massage room video. Ruiz ruled that the defendants “shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa […] from January 18, 2019 to January 22, 2019, including any body camera footage obtained during associated traffic stops as well as any copies thereof.”

The motion to compel destruction was unopposed, and Ruiz noted that the destruction is “pursuant to the terms of the parties’ settlement agreement.”

Last January, the parties discussed a settlement but decided to await the outcome of a state appeals court fight over the footage, according to a joint status report filed last September. The parties resumed settlement discussions after Florida’s Fourth District Court of Appeal ruled in August 2020 “that total suppression of the video recordings was constitutionally warranted.”

“The  Does  believe  that  a  settlement  is  possible  if  the  recordings  are destroyed  by  order  of  this  Court  or  the  state  court,” the September 2020 status report noted,” and there is some compensation to the Does for their suffering and the legal expenses incurred here.”

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