Minimum Competence

Andrew and Gina Leahey
  • 4.8 (13)
  • Daily News
  • Updated Daily

Minimum Competence is your daily companion for legal news, designed to bring you up to speed on the day’s major legal stories during your commute home. Each episode is short, clear, and informative—just enough to make you minimally competent on the key developments in law, policy, and regulation. Whether you’re a lawyer, law student, journalist, or just legal-curious, you’ll get a smart summary without the fluff. A full transcript of each episode is available via the companion newsletter at www.minimumcomp.com. www.minimumcomp.com

  1. 1d ago

    SCOTUS Again Backs Republicans on Political Ad Rates, a Judge Lets the Contractor DEI Order Stand & Eight States Sue OpenAI Over ChatGPT and Kids

    This Day in Legal History: The Clayton Antitrust Act On October 15, 1914, President Woodrow Wilson signed the Clayton Antitrust Act. The Sherman Act of 1890 had banned contracts in restraint of trade and monopolization, but in broad language that left courts to decide case by case what was illegal. Clayton filled in specifics. It prohibited price discrimination that would substantially lessen competition, exclusive-dealing and tying arrangements with the same effect, interlocking boards of directors among competitors, and mergers whose effect “may be substantially to lessen competition.” That last provision, Section 7, is still the main federal merger law today. The Federal Trade Commission was created the same year to help enforce it. Clayton also took on a problem the Sherman Act had created for workers. Courts had used the Sherman Act against labor unions, treating strikes and boycotts as illegal combinations in restraint of trade. Clayton declared that “the labor of a human being is not a commodity or article of commerce,” the line in today’s opening quote, and tried to shield ordinary union activity from antitrust suits and injunctions. Courts read those protections narrowly for years, and it took later laws, like the Norris-LaGuardia Act of 1932, to make them work. The significance of October 15, 1914 is that it established a lasting principle of American regulation: that some sellers can’t charge different prices to different customers when it distorts competition. Our first story today is about a very different pricing rule, one that requires broadcasters to give political candidates their lowest ad rates, and about who else gets to claim that discount. The Supreme Court has sided with Republicans for the second time in a fight over discounted TV ad rates. Federal law requires broadcasters to sell political candidates airtime at the “lowest unit charge,” the same discounted rate a station gives its best commercial advertisers, in the weeks before an election. In March, the Federal Communications Commission, which has a 2-to-1 Republican majority, changed its guidance to extend that discount to party committees, not just candidates. Republican committees, which have a cash advantage this cycle, stand to benefit most. Democrats challenged the change. The Fourth Circuit had ordered the FCC to rule on the Democratic challenge before the November 3 election, which would have let the courts decide the question quickly. In an unsigned order Wednesday, the Supreme Court paused that deadline, accepting the FCC’s argument that it would suffer “irreparable harm” otherwise. Justices Sotomayor and Jackson would have denied the request. In September, the Court had already ruled the challenge was premature. The practical effect is that the dispute is frozen until after the election, and in the meantime the FCC’s guidance stays in place. One complication: according to NBC News, some broadcasters have already been declining to give committees the discounted rate, because they’re unsure the guidance is lawful. So committees may not actually get the discount everywhere, but they also won’t get a ruling to settle it before voters go to the polls. This fits a broader pattern of Supreme Court decisions this year expanding what political parties can do. In June, the Court’s conservative majority struck down longstanding limits on how much parties can coordinate spending with their candidates. Discounted airtime for party committees makes that coordinated spending go further. As with the voting cases we’ve covered all fall, the timing of a court’s decision can matter as much as what it decides. US Supreme Court again backs Republicans in clash over political ad rates | Reuters · Roll Call · NBC News A federal judge in Baltimore has declined to block the President’s executive order targeting diversity programs at federal contractors. The order, issued in March, requires contractors to disavow “racially discriminatory DEI activities” and certify in writing that they comply. Contractors that don’t comply can lose contracts and be investigated under the False Claims Act, which brings the risk of triple damages. Groups representing university faculty and minority business owners sued, arguing that the order effectively treats all diversity efforts as illegal discrimination and chills protected speech. U.S. District Judge Adam Abelson disagreed with that reading. He held that the order “only prohibits contractors from engaging in conduct that is already prohibited by federal law,” namely intentional discrimination on the basis of race or ethnicity, and so the challengers hadn’t shown it was too broad. Here’s what’s interesting about the ruling: both sides can find something to like in it. The administration keeps its order in place. But the plaintiffs’ lawyers at Democracy Forward pointed out that the judge’s reasoning makes clear the order doesn’t broadly prohibit diversity programs. If the order only forbids what Title VII and other civil rights laws already forbid, then programs that don’t involve intentional race discrimination, such as recruiting at a wider range of schools, mentoring open to everyone, or training, aren’t covered. That narrow reading may limit how aggressively the government can use the certification requirement and the False Claims Act against contractors. Narrowing a law to save it is a common judicial move. Courts often adopt the reading that avoids constitutional problems. This was also only a denial of a preliminary injunction, so the case continues, and a separate challenge by 19 states and D.C. is pending in the same court. US judge won’t block Trump order targeting DEI by federal contractors | Reuters · Law360 · GV Wire And finally, eight states have sued OpenAI, alleging that ChatGPT harms children and misleads parents about its safety. Iowa, Kansas, Nebraska, West Virginia, Arkansas, Arizona, Idaho, and Montana each filed separately in their own state courts. The complaints allege that ChatGPT is designed to be overly agreeable and to imitate human compassion, and that this has led it to coach young users toward self-harm, suicide, or violence. Iowa’s attorney general said the chatbot gives dangerous medical advice. West Virginia’s said it lacks adequate safeguards for conversations about suicide, school shootings, and self-harm. The claims rest mainly on state consumer-protection laws, alleging deceptive marketing and harmful design, and the states are seeking changes to how ChatGPT operates, along with penalties and the return of profits made from young users. OpenAI points to its age-based protections and a dedicated teen version of ChatGPT, and says it continues to improve its safety features. Two things are worth noting. First, the strategy. Filing separately in eight state courts, under eight state laws, means OpenAI has to defend on many fronts at once, and it makes it harder to move everything into one federal courtroom. It’s the same approach states have used against social media companies, which led to the Alabama TikTok settlement and the New Mexico verdict against Meta we’ve covered recently. Second, this joins Florida’s case against OpenAI, filed in June, in which Florida has since asked the court to stop the company from developing new models without outside oversight. These suits will also test an open legal question: whether the output of an AI chatbot is treated more like a product, which can be defectively designed, or more like speech, which gets First Amendment protection. How courts answer that will shape AI liability for years. Eight US states sue OpenAI claiming ChatGPT harms children | Reuters · CNBC · Seeking Alpha This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  2. 2d ago

    Qualcomm Beats Arm but Wins $2, Anthropic Asks the Full D.C. Circuit to Rehear Its Pentagon Case & CVS Pays $315M Over Opioid Prescriptions

    This Day in Legal History: The Death of the Great Dissenter On October 14, 1911, Justice John Marshall Harlan died after nearly 34 years on the Supreme Court. Harlan was an unlikely civil rights hero. He was a Kentuckian from a slaveholding family who had opposed the Thirteenth Amendment before the war’s aftermath changed his views. On the Court, he became known as the “Great Dissenter” for standing alone, again and again, against the majority’s narrowing of the Reconstruction Amendments. His most famous dissent came in Plessy v. Ferguson in 1896, when the Court upheld Louisiana’s law segregating railroad cars under the doctrine of “separate but equal.” Harlan was the only justice to disagree. He wrote that the Constitution is “color-blind” and “neither knows nor tolerates classes among citizens,” and he predicted the decision would prove as harmful as Dred Scott. Thirteen years earlier, in the Civil Rights Cases, he had also dissented alone when the Court struck down the federal ban on racial discrimination in public accommodations. The significance of October 14, 1911 is what happened to Harlan’s dissents after his death. Brown v. Board of Education rejected Plessy in 1954, and Congress revived the public-accommodations protections in the Civil Rights Act of 1964. Dissents don’t decide the case in front of the court, but they can shape the law that comes after. That’s worth keeping in mind for our second story, where a 2-1 appellate decision with a dissent is now headed toward review by the full court. A federal jury in Delaware found that chip-design company Arm breached its license agreement with Qualcomm and intentionally interfered with Qualcomm’s business relationship with Meta. Then it awarded Qualcomm nominal damages of $2. Both companies are claiming victory. Qualcomm says the jury found Arm failed to honor its commitments and acted to disrupt its business. Arm says the jury ruled for it on four separate claims and awarded only a dollar on each of the two claims Qualcomm won, which it says shows Arm acted in good faith. Some background: Arm licenses the instruction-set architecture that most of the world’s smartphone chips are built on. Qualcomm holds an architectural license, which lets it design its own custom processors around Arm’s architecture. These companies have been fighting for years. In the first trial, two years ago, a jury rejected Arm’s claim that Qualcomm breached its license after acquiring the chip startup Nuvia. This second trial was Qualcomm’s case against Arm. The legal point worth explaining is nominal damages. In contract law, proving a breach doesn’t automatically get you money. You also have to prove that the breach caused you a measurable loss, and how big that loss was. When a jury finds that a breach happened but the plaintiff didn’t prove actual damages, it can award a token amount, often a dollar, to recognize that the plaintiff’s rights were violated. So a $2 verdict tells you the jury believed Arm did something wrong but wasn’t persuaded Qualcomm proved it lost money as a result. A finding of liability can still matter: it may support other relief like an injunction, affect leverage in licensing negotiations, and help in future disputes between the same parties. But as a matter of damages, Qualcomm won the argument and lost the payout. The markets agreed it was close to a draw: Arm shares slipped about one percent, and Qualcomm’s rose about the same. Qualcomm says jury found Arm breached license agreement | Reuters · CNBC · Yahoo Finance The AI company Anthropic has asked the full D.C. Circuit to rehear its challenge to the Pentagon’s decision to label it a “supply chain risk.” That designation bars the Defense Department and its contractors from using Anthropic’s Claude models for Pentagon work. The fight began in February, when the President ordered federal agencies to stop using Anthropic’s technology, and the Defense Secretary made the formal designation in March. Anthropic has said the blacklisting has cost it billions of dollars in lost business. In September, a three-judge D.C. Circuit panel upheld the designation, 2 to 1. The majority said the Pentagon acted reasonably after Anthropic refused to allow its AI to be used for autonomous weapons or mass surveillance, and it rejected Anthropic’s claim that the designation was retaliation for the company’s public views on AI safety. Anthropic is now asking for rehearing en banc, meaning by all the active judges on the court rather than the three-judge panel. Its argument is that the panel turned a law aimed at hostile foreign actors into one that “presumptively reaches every government contractor,” and that the Pentagon acted with no process before the designation despite strong evidence of retaliation for speech. There are two important questions here. One is statutory: how broadly the government’s supply-chain-risk authority reaches, and whether a domestic company can be cut off on the same terms as a foreign adversary’s suppliers. The other is constitutional: the government generally can’t punish a contractor for its speech, but it has a lot of discretion to choose what products it buys, especially for national defense. Notably, in a separate case in August, a federal judge in California struck down a parallel designation under a different statute, calling the Pentagon’s campaign unlawful retaliation. So two courts have reached different results on closely related facts. Full-court rehearing is rarely granted, and it’s usually reserved for questions of exceptional importance or conflicts in the law. Anthropic is arguing this qualifies on both counts. If the full court declines, the next stop could be the Supreme Court. Anthropic seeks rehearing of case over Pentagon’s security risk branding | Reuters · The Next Web · BusinessWorld And finally, CVS has agreed to pay $315 million to settle Justice Department claims over opioid prescriptions. The government alleged that from 2013 through 2025, CVS pharmacies filled prescriptions for opioids and other controlled substances that had no legitimate medical purpose, then billed Medicare and other federal health programs for many of them. The warning signs cited include unusually large quantities, early refills, and so-called “trinity” prescriptions, a combination of an opioid, a benzodiazepine, and a muscle relaxant that’s widely recognized as a sign of abuse and a serious overdose risk. CVS disagrees with the allegations and isn’t admitting wrongdoing, and it says its pharmacists are highly trained. Two federal laws are doing the work here. The first is the Controlled Substances Act, which gives pharmacists their own legal responsibility, separate from the prescribing doctor, not to fill a prescription they know or should know isn’t legitimate. Pharmacists aren’t just order-takers. The second is the False Claims Act, which makes it unlawful to bill the government for services that don’t meet legal requirements, and which allows triple damages and penalties. This case also shows how the False Claims Act’s whistleblower provision works. It started in 2019 with a lawsuit filed by a former CVS employee, Hillary Estright, on the government’s behalf. The Justice Department joined and filed its own complaint in 2024. Whistleblowers in these cases can receive a share of the recovery, typically between 15 and 30 percent, which is why so many large fraud settlements begin with an insider. For perspective, the Justice Department settled a similar case against Walmart in August for $50 million, and CVS agreed in 2022 to pay nearly $5 billion to settle opioid claims by states, cities, and tribes. Taken together, these settlements show the government holding pharmacies, not just manufacturers and distributors, responsible for their role in the opioid crisis. CVS to pay $315 million to settle unlawful opioid prescription claims, Justice Department says | Reuters · NBC News · Becker’s Hospital Review This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  3. 3d ago

    Federal Agents Search Ilhan Omar’s Home, a Judge Is “Furious” Over Felled Trees at a D.C. Golf Course & Protecting Trump Accounts From Fraud

    This Day in Legal History: In re Turner On October 13, 1867, Chief Justice Salmon P. Chase, sitting as a circuit judge in Baltimore, decided In re Turner. Maryland had abolished slavery in its 1864 constitution, but former enslavers quickly found a workaround: a state apprenticeship law that let courts bind Black children to white employers, often their former masters, without their parents’ consent. White children could not be bound under the same terms. Elizabeth Turner was one of those children, and with help from the Freedmen’s Bureau, her case came before Chase on a petition for habeas corpus. Chase ordered her released. He held that the arrangement was involuntary servitude prohibited by the Thirteenth Amendment, and that the law’s racial distinctions violated the Civil Rights Act of 1866, which guaranteed all citizens the equal benefit of the laws. In a now famous line, he declared that Black Americans were citizens of the United States on the same footing as white Americans. Within a year, the vast majority of Black child apprentices in Maryland had been released, although some state courts kept applying the voided law for several more years. The significance of October 13, 1867 is the idea that citizenship is not something the government can treat differently depending on who you are, and that federal courts will step in when a state uses ordinary-looking legal machinery to undo constitutional rights. Questions about citizenship, and about how the government treats people it views as political adversaries, are at the center of our first story today. Federal agents searched Rep. Ilhan Omar’s home in Washington early Monday. Homeland Security Investigations, the criminal investigations arm of Immigration and Customs Enforcement, executed a court-authorized search warrant obtained by the Justice Department, which said the search was part of an ongoing criminal investigation. According to sources cited in the reporting, the investigation concerns immigration paperwork filled out by Omar’s late father when she was a child, after the family came to the United States from Somalia. Omar is a naturalized U.S. citizen. This was not a deportation action. Her office called the search “an outrageous abuse of power” and an escalation in the “weaponization of federal law enforcement to target political enemies,” and said she has done nothing wrong. House Democratic leaders called it “deeply disturbing.” The President said he had nothing to do with it, but that officials were looking “very carefully” at Omar. A few legal points. First, a search warrant means a federal judge found probable cause to believe evidence of a crime would be found at the location. That’s a real threshold, but it’s a low one, and it isn’t a finding that anyone is guilty. No charges have been reported. Second, if the investigation centers on paperwork prepared by her father when she was a child, there are serious questions about intent and about the statute of limitations for decades-old filings. The Supreme Court held in Maslenjak v. United States in 2017 that the government can’t strip someone’s citizenship over a false statement in the naturalization process unless the falsehood actually mattered to the decision to grant citizenship. Third, the timing is unusual. Justice Department policy has long discouraged overt investigative steps against a candidate close to an election, to avoid influencing the outcome. Taking this step against a sitting member of Congress less than a month before voting will draw scrutiny regardless of what the evidence shows. US launches immigration raid on Democratic Congresswoman Ilhan Omar’s home, Fox News reports | Reuters · CBS News · Axios A federal judge in Washington sharply rebuked Justice Department lawyers after crews cut down hundreds of trees at East Potomac Golf Links, a century-old public golf course on federal land managed by the National Park Service. The President announced plans last year to overhaul the course, and the Interior Department says the work will restore its historic character and open up views of nearby monuments. The DC Preservation League sued in February, arguing the project violates environmental and preservation laws. Back in May, U.S. District Judge Ana Reyes had required the government to give advance notice of any substantive construction work. Then, over a weekend, crews felled roughly 430 to 500 trees, depending on the report, without notifying the preservation group. At a hearing Monday, the judge said she was “furious” and called the removal “inexcusable.” She asked the government’s lawyers, “On what universe did anyone in your office think this was acceptable?” She said the failure to give notice had “cost the government all of its credibility” in the case. She temporarily halted all tree cutting, including routine maintenance, and said she wants sworn testimony from an Interior Department deputy chief of staff and from the superintendent of the National Mall about what happened. She noted that the only reason she hadn’t started contempt proceedings was that her notice requirement hadn’t been put in a written order. This may sound like a small story compared to others we cover, but it raises something important. Notice requirements exist because some actions can’t be undone. You can’t un-cut a hundred-year-old tree. When the government acts first in a way that makes a court’s eventual ruling meaningless, it undermines the court’s ability to provide any remedy at all. And the judge’s comment about credibility matters, because courts often rely on the government’s representations, and that trust is hard to rebuild once lost. Judge blasts Trump’s DOJ over ‘inexcusable’ tree removal at DC golf course | Reuters · CBS News · WJLA And finally, in my column for Bloomberg Tax this week, I look ahead about 17 years, to the day the first Trump Accounts pass into the hands of the young adults they were created for. Trump Accounts work like baby bonds. Eligible U.S.-citizen children born from 2025 through 2028 get a one-time $1,000 federal deposit, families and others can contribute, and taxes on investment growth are generally deferred until withdrawal. Using current birth rates, that’s roughly 14.4 million children and $14.4 billion in seed money, before any investment growth or contributions. My concern is that we’re building a very large target for fraud with an unusual weakness. Many accounts will be set up or claimed by parents almost two decades before the child takes control, and some will be created automatically by the Treasury and sit unclaimed for years. By the time the 2025 group turns 18 around 2043, contact information will be out of date, logins will be long forgotten, and the personal information used to verify identity will have leaked in years of data breaches. And AI-generated fake IDs are already fooling some financial institutions. We’ve seen this before. In 2015, criminals used taxpayer information stolen from elsewhere to pass the IRS’s identity checks for its Get Transcript tool. They didn’t need to hack the IRS to beat it. So I argue the Treasury should plan the handoff now: fresh identity verification that means more than asking the same old questions again, extra security for dormant and never-claimed accounts, protections against last-minute changes to contact or withdrawal information, and a human-reviewed path for beneficiaries who’ve lost access to their original credentials. And Congress should guarantee a right to restoration of unauthorized withdrawals, placing the loss on the institution that approved the transfer, not on the young person whose savings disappeared, with deadlines and appeals so institutions can’t simply deny hard claims. The test of this program won’t be how many accounts get opened. It’ll be whether the people they were opened for can actually get their money without losing it to an impostor. Trump Accounts’ Fraud Vulnerability Calls for Strong Safeguards | Bloomberg Tax This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  4. 4d ago

    DOJ Opens an Antitrust Probe of TV Networks Over Pool Coverage, Lisa Cook Faces a White House Hearing & a Judge Tosses an AI-Drafted Complaint

    This Day in Legal History: The Alex Jones Verdict On October 12, 2022, a jury in Waterbury, Connecticut, ordered Alex Jones and his company to pay about $965 million to the families of victims of the 2012 Sandy Hook Elementary School shooting and to an FBI agent who responded that day. For years, Jones had told his audience the massacre, in which 20 children and six educators were killed, was a hoax staged by “crisis actors.” His followers harassed and threatened grieving parents, some of whom had to move repeatedly to escape them. The judge later added hundreds of millions more in punitive damages and fees. Jones had already lost the case on liability. The court entered a default judgment against him because he repeatedly failed to turn over evidence, so the jury’s job was to decide damages. The verdict, together with an earlier Texas award, became one of the largest defamation judgments in American history, and Jones’s media company later went through bankruptcy. The significance of October 12, 2022 is a reminder of where the First Amendment’s protection ends. American law protects an enormous range of speech, including harsh, offensive, and mistaken speech about public matters. It does not protect knowingly false statements of fact that destroy private people’s reputations. That boundary, between what the government and the courts can’t touch and what they can, is at the center of our first story today, about whether the government can use antitrust law to second-guess how news organizations decided to cover the President. The Justice Department is investigating whether five TV networks, ABC, CBS, CNN, NBC, and Fox News, violated antitrust law when they briefly stopped providing shared “pool” coverage of the President. The New York Times first reported the investigation. Here’s the background. On September 19, the White House barred reporters from CNN, MS NOW, and Politico over their coverage, a ban we’ve followed closely. In response, the networks that rotate responsibility for the White House TV pool, the shared camera crew whose footage all outlets can use, suspended pool coverage for several days. They resumed after a federal judge temporarily blocked the ban. Now the Antitrust Division has demanded the networks’ communications about the pool. A Justice Department spokesperson said the networks “proudly boycotted” covering White House events and that group boycotts by commercial competitors can violate the Sherman Act. Here’s the legal problem with that theory. It’s true that competitors agreeing not to deal with someone can be an antitrust violation. But the Supreme Court has drawn a line between economic boycotts and boycotts that are a form of expression. In NAACP v. Claiborne Hardware in 1982, the Court held that a boycott aimed at political and social goals is protected by the First Amendment. The networks’ decision about whether and how to cover an event is an editorial judgment, which is about as protected as speech gets. And the pool exists because the White House limits access; it’s a cooperative arrangement for gathering news, not a scheme to fix prices or divide markets. One leading First Amendment group called the investigation “nonsensical.” There’s also the context: the Justice Department is defending the press ban in court, and Trump ally Laura Loomer publicly urged an antitrust challenge two weeks ago. Coming alongside subpoenas to Times reporters and the seizure of a Washington Post reporter’s laptop, critics see this as using enforcement power to pressure the press. The investigation is at an early stage, and no charges have been brought. Justice Department probes TV networks over Trump pool coverage, New York Times reports | Reuters · CBS News · CNN Federal Reserve Governor Lisa Cook’s lawyers say a White House hearing on whether she can be removed will show she committed no mortgage fraud, if the hearing is anything close to objective. The President first tried to fire Cook in August 2025, claiming she made misrepresentations on mortgage documents before she joined the Fed. She has denied wrongdoing, arguing the apparent discrepancies were either accurate at the time or inadvertent, and that she disclosed the relevant facts to her lenders. In June, the Supreme Court ruled she could keep serving while her challenge proceeds, without deciding whether the allegations are true. Now the President has created a three-person “committee of inquiry” to hold a hearing at the White House on November 5. Cook can submit a written statement beforehand, the committee can question her or let Justice Department lawyers do so, and it will then report to the President whether there’s legal cause to remove her. Here’s why the process matters. The Federal Reserve Act says governors can be removed only “for cause.” That protection is what keeps monetary policy insulated from day-to-day political pressure, and courts have generally read “for cause” to require some kind of notice and opportunity to respond. The White House hearing looks like an effort to supply that process and build a record that can survive in court. Cook’s lawyers, Abbe Lowell and Norm Eisen, say they have “grave doubts” the hearing is legitimate, because the President has repeatedly said he’s already decided to fire her, and they argue the real reason is her refusal to support lower interest rates. A hearing where the decision-maker has announced the outcome in advance is vulnerable to a due-process challenge. Still, her lawyers say they’re engaging with the process to test whether it can be fair. Whatever the committee reports, this is likely headed back to court, and it will test how much independence the Fed’s “for cause” protection really provides. Fed’s Cook lawyers say hearing will show no mortgage fraud case | Reuters · CNBC · CBS News And finally, another chapter in the story of AI in the courtroom, this time from a different angle. A federal judge in Arizona, U.S. District Judge Krissa Lanham, dismissed a lawsuit a worker filed against the Department of Agriculture alleging retaliation and a hostile work environment. The plaintiff, Shelly George, was representing herself. Judge Lanham wrote that the 67-page complaint appeared to be generated by AI, because it resembled other AI-generated complaints the court had seen. She also found it was a “shotgun pleading”: it repeated claims, made unclear arguments, and didn’t connect the facts to the legal claims. She barred the plaintiff from using AI to draft a new complaint and required disclosure of certain AI use in future filings. A few observations. First, most of the AI cases we’ve covered involved lawyers citing cases that don’t exist. This one is different: the problem wasn’t fabricated law, it was a complaint that didn’t do its basic job. A complaint has to give the defendant fair notice of what it’s being sued for and why, and the federal rules require a “short and plain statement” of the claim. Long, repetitive pleadings that don’t connect facts to claims have been dismissed for decades, AI or no AI. Second, it’s worth noting the court’s AI finding rests on the judge’s observation that the document resembled others, not on an admission or a detection tool. Third, this is a hard issue for people without lawyers. Courts are generally more lenient with self-represented litigants, and AI tools can genuinely help people who can’t afford counsel organize their thoughts and find the right forms. But they can also produce long, confident documents that look like legal pleadings without meeting the legal standards. The likely result is more courts adopting AI disclosure rules, which may protect the courts but also add another procedural hurdle for people already navigating the system alone. Judge dismisses US agency worker’s lawsuit, citing AI hallmarks | Reuters · JD Journal This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  5. Oct 8

    New York Alleges TikTok Ran "Placebo" Safety Tests on Teens, Florida Goes It Alone Against Meta & a Judge Orders Christa Pike Execution Evidence Preserved

    This Day in Legal History: Bostock Is Argued On October 8, 2019, the Supreme Court heard argument in Bostock v. Clayton County and two companion cases. Each involved an employee fired after the employer learned the employee was gay or transgender. The question was whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination “because of sex,” protects against discrimination based on sexual orientation or gender identity. In June 2020, the Court answered yes, 6 to 3, in an opinion by Justice Neil Gorsuch. The reasoning was textualist. Gorsuch wrote that it’s impossible to fire someone for being gay or transgender without considering their sex: an employer who fires a man for being attracted to men, but wouldn’t fire a woman for the same thing, is treating the employee differently because of sex. The Congress that passed Title VII may not have anticipated that result, but the Court held that the words of the statute, not the expectations of its drafters, are the law. That’s the line in today’s opening quote. The significance of October 8, 2019 is the method as much as the result. Bostock shows how an old statute’s plain words can reach situations its authors never imagined. That idea runs through all of today’s stories: states are using decades-old consumer-protection laws against social media companies, and Christa Pike’s lawyers are invoking an Eighth Amendment ratified in 1791 against a modern execution protocol. Newly unsealed filings in New York’s lawsuit against TikTok contain some of the most striking allegations yet in the litigation over social media and young users. Attorney General Letitia James sued TikTok in October 2024 as part of a bipartisan group of 14 states, alleging the company misled the public about its platform’s safety. A judge has now unsealed portions of an amended complaint filed in August. The central allegation involves a feature called “Algo Refresh,” which lets a user reset their recommendations, for example to get away from a feed full of harmful content. New York alleges that in experiments TikTok called “ghost” or placebo tests, some users, including teens and children, were told the reset had worked when their recommendations hadn’t actually changed. The state says TikTok used these tests to measure how a working safety feature affected time spent on the app and ad revenue, and that an internal well-being manager warned the test conflicted with user transparency and control. The filings also allege that a 16-year-old New Yorker who died by suicide in 2022 had been in a group that didn’t receive safety features TikTok was rolling out. Reports differ on the exact dates and sizes of the tests. TikTok disputes the allegations. It acknowledges running tests in which a portion of users keep the original experience, as most tech companies do, but denies that its testing makes the platform less safe. Control groups are standard in product testing, and holding a feature back from some users isn’t by itself deceptive. The allegation that changes things is telling users a safety feature had been activated when it hadn’t. That’s an affirmative misrepresentation, which is exactly what state deceptive-practices laws prohibit. The state doesn’t need to prove the product is inherently harmful; it needs to show the company said something false that mattered to consumers. These are allegations, not findings. But coming two weeks after TikTok settled with Alabama for at least $100 million on the eve of trial, they put more pressure on the company in the dozens of state cases still pending. TikTok gave teens, children ‘placebo’ safety feature in experiment, New York alleges | Reuters · The Next Web · Business Standard Florida has asked a state court to order immediate changes to Facebook and Instagram for teenage users. Attorney General James Uthmeier’s request, filed in Pasco County, would require Meta to find and remove Florida users under 14, cap teen use at two hours a day across all of Meta’s apps, turn off autoplay and infinite scroll for teens, cut off teen messaging once time limits are reached, and stop advertising aimed at teens. Florida wants all of this in place while the lawsuit continues. The context is that in August, Meta settled with 48 other states and Washington, D.C., agreeing to pay up to $18 billion and make changes for teen users. Uthmeier declined to join, calling that deal a “mere slap on the wrist.” Florida’s suit, under its Deceptive and Unfair Trade Practices Act, accuses Meta of designing addictive products for young users and misleading the public about their safety. Meta called the request a “meritless preliminary injunction” and said Florida should be pressing YouTube and TikTok instead. The legal hurdle is high. A preliminary injunction is an early, temporary remedy granted before any trial, so Florida has to show it is likely to win, that teens will suffer irreparable harm without immediate relief, and that the balance of harms and the public interest favor it. Florida is asking for a lot at that early stage, and the relief goes to how the products are designed and who can use them, not just to stopping a false statement. There’s also a First Amendment problem in the background. Courts have blocked several state laws restricting minors’ access to social media on free-speech grounds, finding that they burden both minors’ and adults’ access to protected speech. An age ban and usage cap imposed by court order rather than by statute will likely face similar arguments. Florida’s decision to go it alone is a bet that it can get more through litigation than through the nationwide deal. Whether that bet pays off depends a great deal on how this judge views the request. Florida asks court to force Meta to change Facebook, Instagram for teens | Reuters · The Star · WFTV And finally, the latest in the case of Christa Pike, whose execution in Tennessee failed last week. Her lawyers asked a Davidson County court to order state officials to preserve every piece of physical evidence from the attempt: the drugs and their packaging and lot numbers, the syringes, catheters, IV lines, and the gurney and restraints. They also asked to inspect the equipment and take any remaining drug residue for chemical analysis. The Department of Correction said an order wasn’t necessary because it’s already legally required to preserve evidence. On Wednesday, Chancellor I’Ashea Myles largely sided with Pike’s lawyers, ordering the state to preserve all the drugs, syringes, lines, needles, medical supplies, restraints, and gurneys in the execution room, along with packaging, labels, and manufacturer information. From the reports, it isn’t clear yet whether the defense will be allowed to physically examine or test those items. Pike’s lawyers say she is the first person known to have survived a completed execution attempt in the United States. After two injections of pentobarbital, she was taken to a Nashville hospital critically ill. Her lawyers argue that the attempt amounted to torture in violation of the Eighth Amendment. Under the Supreme Court’s lethal-injection cases, a prisoner challenging an execution method generally has to show that it creates a substantial risk of severe pain. Proving that requires facts: whether the drug was what the state said it was, whether it was potent or degraded, whether it was stored and mixed correctly, and whether the IV lines were placed properly. Those facts are in the syringes, the residue, and the lot numbers. If that evidence were lost or discarded, Pike’s lawyers would lose their best chance to show what went wrong, both for her own claim that the state can’t try again and for other prisoners challenging Tennessee’s protocol. Preservation orders are routine in civil litigation. What’s unusual here is the setting, and what the evidence could show about a state’s capacity to carry out its most serious punishment. Christa Pike’s lawyers demand to see syringes, drug residue from botched execution | Reuters · CBC News · RNZ This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  6. Oct 7

    The EEOC Fights to Keep Its Law-Firm DEI Records Secret, Disney Takes On the FCC & What Sen. Kelly's AI Tax Bill Would Actually Tax

    This Day in Legal History: The Stamp Act Congress On October 7, 1765, twenty-seven delegates from nine of the thirteen American colonies met in New York City for what became known as the Stamp Act Congress. Parliament had passed the Stamp Act that spring, requiring colonists to buy stamped paper for newspapers, legal documents, licenses, and even playing cards. It was the first direct tax Parliament had imposed on the colonies, and the colonies responded with their first organized, intercolonial political meeting. On October 19, the delegates adopted the Declaration of Rights and Grievances. Its argument was legal, not just political. The colonists claimed the rights of Englishmen, including the principle that they could be taxed only by their own representatives. Because they had no representatives in Parliament, they argued, only their colonial assemblies could tax them. The declaration also objected to the use of admiralty courts, which sat without juries, to enforce the act, insisting that trial by jury was a right of every British subject. The significance of October 7, 1765 is that it put the connection between a tax and its legitimacy at the center of American political thought. “No taxation without representation” is about who gets to impose a tax. My column today is about a related question that comes up every time a legislature designs a new tax: what exactly is being taxed, and does the thing being measured have anything to do with the reason for the tax? The administration is asking a federal court to let the Equal Employment Opportunity Commission keep secret the records of its investigation last year into diversity practices at major law firms. Some background. In March 2025, the EEOC’s then-acting chair, Andrea Lucas, sent letters to 20 of the country’s largest firms, including Skadden, WilmerHale, Perkins Coie, Debevoise, and Hogan Lovells, warning that their diversity and inclusion policies might violate Title VII. By April, the EEOC announced agreements with four firms: Kirkland & Ellis, Latham & Watkins, Simpson Thacher, and A&O Shearman. It never disclosed the terms. Those four were among nine firms that together pledged nearly $1 billion in free legal work for causes the White House supports. Public Citizen and two law professors sued for the records. In a filing on Monday, the government said the EEOC can neither confirm nor deny whether any of the firms received a formal charge of discrimination. The legal basis is real. Title VII prohibits the EEOC from making charges of discrimination public and restricts disclosure of information it gathers in investigations, and federal records law lets agencies withhold information that another statute protects. Those confidentiality rules exist so that employers and workers can cooperate with investigations without public exposure. The tension is that this wasn’t a routine investigation of one employer. It was a public campaign by a federal agency against an entire sector of the legal profession, announced in press releases and resolved with agreements whose terms are still unknown. The challengers argue the public is entitled to know what the government demanded and what firms agreed to, especially when the result was hundreds of millions of dollars in pro bono commitments to the administration’s priorities. The court will have to decide whether a confidentiality rule designed for individual discrimination charges can shield the details of a campaign aimed at an entire profession. US seeks to keep law firm DEI probe records secret | Reuters · Hoodline · HCAMag A federal judge in Washington held a two-hour hearing on Disney’s request to block the Federal Communications Commission’s early review of the broadcast licenses for ABC’s eight owned-and-operated TV stations. Earlier this year, FCC Chair Brendan Carr ordered those stations to file license-renewal applications years ahead of schedule. They weren’t due until October 2028 at the earliest. Disney and ABC sued in August, calling the move an “extraordinary assault on free speech” and alleging the agency was trying to punish the network for refusing to bend to White House pressure. At the hearing, Disney’s lawyer said the government is seeking to censor and control ABC’s broadcasts. U.S. District Judge Loren AliKhan didn’t rule. She asked for more written arguments, from the government by October 9 and from Disney by October 14, so a decision isn’t likely before mid-October. Here’s the legal setup. Broadcasters operate under federal licenses, and the FCC renews them based on whether a station serves the “public interest.” That standard gives the agency real authority, and the Supreme Court has long allowed more regulation of broadcasting than of print or the internet because the airwaves are a limited public resource. But the First Amendment still applies. The FCC can’t use its licensing power to punish a broadcaster for the content of its news coverage or its editorial choices. Disney’s case depends on showing that the early review is retaliation for its speech rather than ordinary regulation. The government will argue it is simply exercising its statutory oversight power. The timing of the order and any public statements tying it to ABC’s coverage will matter a great deal. This is the third case we’ve covered in recent weeks about the government using its control over access or licenses to pressure news organizations, after the White House press bans of CNN, MS NOW, and Politico. US judge to hold hearing on Disney bid to block FCC license review | Reuters · Quartz · NBC News And finally, in my column for Bloomberg Tax this week, I look at Sen. Mark Kelly’s Make AI Work for Americans Act, which proposes three new taxes to capture some of AI’s economic gains and pay for programs that help workers and communities hurt by AI-driven disruption. I’m sympathetic to the goal. My concern is that the bill never decides what part of AI activity it actually wants to measure. The first tax is on “computational processing,” and the bill defines a unit of that as 10 kilobytes of data. But bytes measure how much information there is, not how much computing it took to produce it. A short answer can take a lot of processing; a long one can be cheap. And even a perfect measure of computing power wouldn’t tell you how many workers were displaced. So you have one quantity standing in for a second, which stands in for a third. Here’s the analogy I use. If you want to offset the cost of a factory’s water use, taxing each gallon it uses is easy to justify. Taxing the number of times the factory opens its front door each day, and calling that a water tax, needs a lot more explanation. The bill’s second tax, 5% of digital advertising revenue from U.S. users, is easy to administer, but it doesn’t ask whether any of that revenue came from AI or replaced a single worker. It taxes a pot of money held by digital companies that are, at best, AI’s cousins. The third is a 50% excess-profits tax on income above 40% of gross receipts, for companies that meet AI-activity, revenue, and electricity-use tests. That’s closest to a sound theory, taxing unusually high returns, but it still doesn’t isolate profits that came from replacing workers. A company that eliminates jobs with AI could fall outside it, while a very profitable company that hasn’t displaced anyone could owe it. My argument is that until Congress can actually measure AI’s economic harm, it shouldn’t dress up loose proxies as taxes on AI. A cleaner interim approach, which I’ve argued for before, is for the public to take a direct share of the upside, like an equity stake in AI company profits, and then design targeted levies later, once the evidence connects specific AI uses to specific costs. Kelly’s AI Tax Bill Struggles to Link Tech With Economic Harms | Bloomberg Tax This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

    The EEOC Fights to Keep Its Law-Firm DEI Records Secret, Disney Takes On the FCC & What Sen. Kelly's AI Tax Bill Would Actually Tax

  7. Oct 5

    SCOTUS Opens Its Term With Boulder's Climate Case, the Harvard Funding Fight Hits the First Circuit & Poland Charges Google Over Publisher Payments

    This Day in Legal History: Earl Warren Takes the Center Chair On October 5, 1953, which was the first Monday in October and the opening day of the Supreme Court’s term, Earl Warren was sworn in as the 14th Chief Justice of the United States. Chief Justice Fred Vinson had died of a heart attack less than a month earlier. To make sure the Court opened its term with a full bench, President Eisenhower gave Warren, then governor of California, a recess appointment. Eisenhower and Vice President Nixon attended the ceremony. The Senate confirmed Warren the following March, and he took the oath again. The timing mattered. Brown v. Board of Education had already been argued once and was set for reargument that term. Warren spent months building a unanimous Court, and in May 1954 he delivered the opinion holding that racially segregated public schools violate the Equal Protection Clause. Over the next sixteen years, the Warren Court reshaped American law: one person, one vote in the reapportionment cases; the right to counsel in Gideon v. Wainwright; the Miranda warnings; and major expansions of free speech and the rights of criminal defendants. The significance of October 5, 1953 is a reminder of how much depends on who sits on the Court when a term opens. A recess appointment made to fill a seat for opening day put in the center chair the justice who would lead one of the most consequential eras in the Court’s history. And today, exactly 73 years later, is again the first Monday in October, with the Court opening a new term and hearing its first case: our lead story. The Supreme Court opens its new term today by hearing arguments in one of the most important climate cases it has taken up: Suncor Energy v. County Commissioners of Boulder County. In 2018, the city and county of Boulder sued Suncor and ExxonMobil in Colorado state court under state law, alleging that the companies deceived the public about the role of their products in climate change and seeking compensation for local harms like wildfire, heat, and flooding costs. The Colorado Supreme Court ruled 5 to 2 last year that the case could go forward. The oil companies’ argument is preemption. They say that climate change is caused by greenhouse gas emissions from every country on earth, that the Clean Air Act and the federal structure govern interstate and international air pollution, and that a single state can’t use its own tort law to effectively regulate a global problem or impose liability for emissions far outside its borders. Boulder’s answer is that it isn’t regulating emissions at all. It’s suing over deception, a classic state-law claim, and nothing in federal law clearly displaces that. The Court also asked the parties to address threshold questions about whether it has jurisdiction to hear the case at this stage. Two things raise the stakes. First, nearly 60 similar suits by states and cities around the country turn on how the Court resolves this question. A broad ruling for the companies could end most of them; a ruling for Boulder would send them toward trial. Second, as we covered last week, Justice Alito has recused himself, so only eight justices are sitting. If they split 4 to 4, the Colorado ruling would stand, but without setting any national precedent, and the same fight would return in another case. A decision is expected by mid-2027. US Supreme Court weighs bid by oil companies to avoid climate lawsuit | Reuters · Earthjustice · Harvard Environmental & Energy Law Program The administration is asking the First Circuit Court of Appeals in Boston to revive its effort to terminate roughly $2.2 billion in federal research grants to Harvard University. The background: in April 2025, the administration sent Harvard a list of demands, including ending its diversity programs and bringing in outside auditors to monitor academic departments for “viewpoint diversity.” Harvard’s president, Alan Garber, refused, saying no government should dictate what private universities can teach. Within hours, the administration froze Harvard’s grants, citing the university’s alleged failure to address harassment of Jewish students, and it eventually terminated them. A federal district judge ruled for Harvard in an 84-page decision, finding that the administration used antisemitism as “a smokescreen for a targeted, ideologically motivated assault” on the country’s leading universities. That’s a First Amendment retaliation finding: the government can’t cut off a benefit to punish someone for protected speech or for refusing to give up academic independence. On appeal, the Justice Department makes two kinds of arguments. On the merits, it says the government isn’t required to keep funding universities that show “deliberate indifference” to antisemitism. It also argues the case was in the wrong court entirely. Under the Tucker Act, contract claims seeking money from the federal government belong in the Court of Federal Claims, not a district court, and the administration says Harvard’s suit is really a dispute over grant contracts. That jurisdictional argument has worked for the government in other grant-termination cases, so it’s a serious threat to Harvard’s win. The significance goes well beyond one university. This appeal will help decide whether the federal government can use research funding as leverage to force changes in how universities teach, hire, and govern themselves, and whether courts will review that leverage as a speech problem or treat it as an ordinary contract dispute. US appeals court weighs Trump’s block on Harvard research funding | Reuters · US News · Harvard Magazine And finally, Poland’s competition regulator, known by its Polish initials as UOKiK, has charged Google with abusing its dominant position in negotiations with Polish news publishers over payment for their content. The backstory is a 2024 amendment to Polish copyright law implementing an EU directive that gives press publishers a right to be paid when online platforms use their content. In Google’s case, that covers articles and snippets shown in Search, Google News, and Discover. The regulator’s theory isn’t that Google refused to pay. It’s that Google controlled the information needed to negotiate. According to UOKiK, Google didn’t give publishers the data they needed to evaluate its offers, such as how much traffic and value their content generated, so publishers had no real way to judge whether the payment was fair. The regulator said that made the negotiations “illusory,” with Google effectively imposing terms. Its president put it bluntly: big tech companies “cannot place themselves above the law.” This is an interesting antitrust theory, because the abuse alleged is an information imbalance rather than a classic refusal to deal or exclusionary practice. A legal right to payment means little if one side can’t see what the content is worth. A few points of perspective: these are charges, not a final decision, and Google will have a chance to respond. If the regulator finds a violation, the maximum fine is 10% of turnover. And this is separate from the European Commission’s investigation, opened last December, into whether Google used publishers’ content in its AI services without adequate payment or the ability to opt out. Together with the U.S. ad-tech remedy we covered last month, it’s another sign that regulators on both sides of the Atlantic are focused on the economic relationship between Google and the publishers whose content it depends on. Polish regulator suspects Google abused dominant position in publisher payment talks | Reuters · Brandsit · Global Banking & Finance Review This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

  8. Oct 2

    Tennessee Calls Its Failed Execution a "Tragedy," a Judge Strikes Down the Federal Noncitizen-Voting Crime & New Mexico Seeks Up to $40B From Meta

    This Day in Legal History: Thurgood Marshall Joins the Court On October 2, 1967, Chief Justice Earl Warren swore in Thurgood Marshall as an associate justice of the Supreme Court, the first Black justice in the Court’s history. President Lyndon Johnson had nominated him to replace Justice Tom Clark, and the Senate confirmed him that August by a vote of 69 to 11. Marshall arrived at the Court having already changed it from the other side of the bench. As chief counsel of the NAACP Legal Defense and Educational Fund, he argued 32 cases before the Supreme Court and won 29 of them, including Brown v. Board of Education. He had also served as a federal appeals judge and as Solicitor General. Few justices have come to the Court with a record of argument that shaped as much of the law they were about to apply. In nearly 24 years on the Court, Marshall was a consistent voice for equal protection and for the rights of criminal defendants. He was also among the Court’s most persistent opponents of capital punishment. In Furman v. Georgia in 1972 he concluded the death penalty was unconstitutional in all circumstances, and after the Court allowed executions to resume he dissented from death sentences for the rest of his tenure. That position is worth recalling today, because our first story is about what happens when the state’s attempt to carry out a death sentence fails. We have an update on the story we covered yesterday. Tennessee Governor Bill Lee has called the failed execution of Christa Pike “a tragedy,” saying no one wanted it to happen and that it was “deeply disturbing” that it happened in his state. As a reminder, Pike was convicted of the 1995 murder of a fellow Job Corps student, committed when Pike was 18. On Wednesday night, after the Supreme Court lifted a last-minute stay, officials administered two doses of pentobarbital. She lost consciousness but kept a steady heartbeat, and she was taken to a hospital for emergency treatment. Lee has suspended the remaining execution scheduled for this year and ordered a third-party review. The new detail is that, according to reporting from JURIST and the Washington Post, this is the second botched execution in Tennessee this year. That matters legally. Under Baze v. Rees and Glossip v. Gross, an inmate challenging an execution method generally has to show a substantial risk of severe pain and identify a feasible alternative. Courts have often treated a single mishap as an isolated accident that doesn’t prove the method is unconstitutional. Two failures in one year is harder to call isolated, and it gives lawyers for other death-row prisoners evidence that the state’s protocol itself is unreliable. Tennessee has been here before: in 2022, Governor Lee paused executions after the state was found not to have properly tested its lethal-injection drugs. For Pike herself, the hardest question remains whether the state may try again. The 1947 case of Louisiana ex rel. Francis v. Resweber allowed a second attempt after a failed electrocution, but that was a narrow, divided decision from a very different era. Pike’s lawyers will argue a second attempt would be cruel and unusual, and they’ll keep pressing the claim that evidence of her childhood abuse was never properly considered at sentencing. Expect the third-party review, and whatever it finds about the drugs and procedures, to be central evidence in that litigation. Tennessee governor calls failed Christa Pike execution a ‘tragedy’ | Reuters · JURIST · Washington Post A federal judge in Miami has held that the 1996 federal law making it a crime for noncitizens to vote in federal elections is unconstitutional. Two weeks ago we covered the novel defense strategy behind this: several noncitizens charged under the law argued that Congress never had the power to pass it. At that point one Miami judge had rejected the argument. Now U.S. District Judge David Leibowitz has accepted it, dismissing the case against Chelsea Cox, a Jamaican national living in Florida charged with voting illegally in the 2020 election. His reasoning rests on the structure of the Constitution. Article I and the Seventeenth Amendment tie voter eligibility in federal elections to the qualifications each state sets for its own legislature. The Elections Clause gives Congress power over the “times, places and manner” of federal elections, but the Supreme Court said in Arizona v. Inter Tribal Council in 2013 that this doesn’t include power to set who is qualified to vote. On that view, deciding who may vote belongs to the states, and Congress can’t criminalize voting by people the Constitution leaves the states to regulate. The Justice Department’s answer, as we discussed, is that the law is really an exercise of Congress’s broad immigration power, not an election rule. Judge Leibowitz didn’t accept that framing. A few points of perspective. This appears to be the first time any federal court has found the 1996 law unconstitutional. The ruling binds only this case, and other judges, including one in the same courthouse, have gone the other way. Noncitizen voting remains illegal under the laws of essentially every state, so this doesn’t make it lawful; it questions whether the federal government can prosecute it. But the Justice Department has charged at least 60 people under this statute since January 2025, and about 45 cases are pending. Every defense lawyer in those cases now has a written federal opinion to cite. An appeal to the Eleventh Circuit seems very likely, and with judges already split, this could reach the Supreme Court. US judge finds law criminalizing noncitizen voting unconstitutional | Reuters · Al Jazeera · GV Wire And finally, the penalty phase of New Mexico’s case against Meta, which we covered on Monday after a Santa Fe jury found the company misled the state’s residents about Facebook’s data practices in the Cambridge Analytica case. The jury found more than 43 million violations of New Mexico’s Unfair Practices Act. The statute allows up to $5,000 per violation, which puts the theoretical maximum at about $219 billion. At a hearing Thursday, New Mexico asked Judge Francis Mathew to order Meta to pay between $35 billion and $40 billion. The state’s lawyer noted that an award that size would be the largest verdict in American legal history. Meta called the request “astronomical” and asked the judge to cap the penalty at $3.45 billion. So the judge is choosing somewhere in a range that spans more than a factor of ten. This is the legal problem I flagged on Monday: per-violation penalties were written with individual transactions in mind, and they produce enormous numbers when multiplied across a whole state’s population of users. The judge has discretion under the statute, and he’ll likely weigh things like how deliberate the deception was, how long it lasted, Meta’s ability to pay, and what amount would actually deter. There’s also a constitutional ceiling in the background. The Eighth Amendment’s Excessive Fines Clause applies to civil penalties paid to the government, and the Supreme Court held in Timbs v. Indiana in 2019 that it binds the states. A penalty grossly disproportionate to the offense can be struck down, and Meta will almost certainly make that argument on appeal if the number is large. Judge Mathew says he expects to rule later this month. Whatever he decides will be watched closely by every state attorney general with a consumer-protection case against a tech platform, because it’ll show how far these statutes can be pushed. New Mexico wants Meta to pay up to $40 billion in penalties after data privacy trial | Reuters · Bloomberg Law · Law360 This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

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Minimum Competence is your daily companion for legal news, designed to bring you up to speed on the day’s major legal stories during your commute home. Each episode is short, clear, and informative—just enough to make you minimally competent on the key developments in law, policy, and regulation. Whether you’re a lawyer, law student, journalist, or just legal-curious, you’ll get a smart summary without the fluff. A full transcript of each episode is available via the companion newsletter at www.minimumcomp.com. www.minimumcomp.com

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  • Creator
    Andrew and Gina Leahey
  • Years Active
    2023 - 2026
  • Episodes
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    © Andrew Leahey
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