Florida's Anti-Drag Show Bill Not Reinstated - Class Action Attorney Fees Reduced as They Will Recover More Than Clients

• Pages: 10-10
• Date: 01 January 2024
• Author: Hon. Oran F. Whiting (Ret.)
• Subject Matter: Derecho Civil

Florida’s Anti-Drag Show Bill Not Reinstated

Class Action Attorney Fees Reduced as They Will

Recover More Than Clients

U.S. SUP REME COUR T

First Amendment

The Court, via a 6-to-3 vote, with

Justices Thomas, Alito, and Gorsuch

dissenting, refused to reinstate a

Florida state law prohibiting children

from attending performances with

exposure to prosthetic genitals and

breasts. The U.S. Court of Appeals

for the Eleventh Circuit previously

armed a lower court’s blockage of

the law, saying it likely violated the First

Amendment, in part because its vague

language does not def‌ine “lewd con-

duct” or “lewd exposure.”Drag shows

are not specif‌ically mentioned in the

Florida law, but the law allows state

ocials to impose f‌ines and suspend

the business and liquor licenses of res-

taurants allowing children to attend

such performances.Justices Kavanaugh

and Barrett emphasized that the ques-

tion of whether lower courts can block

enforcement of a law against those not

involved in litigation is an important

question, but this case is “an imper-

fect vehicle” for considering that ques-

tion.Grin v. HM Florida-ORL, No.

23A366.

FEDERA L CIRCUIT COU RTS

Second Circuit

The Second U.S. Circuit Judicial

Council, despite a July 2022 directive

from the National Judicial Misconduct

Panel to open a new investigation,

unanimously declined to reconsider its

earlier decision to clear Eleventh U.S.

Circuit Court of Appeals Chief Judge

William Pryor and Birmingham, AL,

U.S. District Judge Corey Maze of mis-

conduct over the hiring of a law clerk

who reportedly engaged in racist con-

duct while employed by a conservative

nonprof‌it.The clerk allegedly texted a

colleague, “I hate Black people,” and

engaged in other racist conduct.

The U.S. Judicial Conference’s

Committee on Judicial Conduct and

Disability, which heard the case due to

AND MORE . . . BY HO N. ORAN F. WHITI NG (RET.), LITIGATION NEWS ASSOCIATE EDITOR

conf‌licts in the Atlanta-based Eleventh

Circuit, previously faulted the Second

Circuit for clearing Pryor and Maze of

misconduct without f‌irst establishing

a special committee to investigate the

allegations.The Second Circuit held the

national committee had exceeded its

authority under the Judicial Conduct

and Disability Act of 1980 in ordering

an investigation because under the rel-

evant statute, the Second Circuit’s dis-

missal order was f‌inal. In re Charge of

Judicial Misconduct, Nos. 21-90142-jm

and 21-90143-jm.

Third Circuit

In a class action involving a signif‌icant

data breach, the Third Circuit vacated

the fee award and remanded the mat-

ter “for consideration of the amounts

distributed to and expected to be

claimed by the class.”The Center for

Class Action Fairness objected to a

settlement in which the arduous claims

process and the required settlement

fund amount in the initial settlement

agreement would have resulted in the

attorneys receiving a disproportionally

larger amount than the members.The

district court initially granted the attor-

ney fees, in full, based on the amount

the defendant made available. An

appeal of that order argued the court

erred in awarding class counsel a fee

based on a percentage of cash that

the class would never actually receive.

Attorneys general for multiple states

f‌iled an amicus brief in support of that

appeal.The Third Circuit panel rejected

the argument that money hypotheti-

cally made available to class members

controls the fee award, f‌inding that

this practice “is not required by history

or precedent.”In re Wawa, Inc. Data

Security, No. 22-1950.

Fifth Circuit

The Fifth Circuit has ruled the Securities

and Exchange Commission (SEC) must

correct def‌iciencies in a May 2023 rule

requiring public companies to disclose

share buyback data to benef‌it the

investing public.The court held the SEC

acted arbitrarily and capriciously by

failing to quantify the rule’s economic

eects and to prove its claims that the

rule would benef‌it the investing pub-

lic.The Chamber of Commerce and

other plainti business groups argued

the rule risks airing important mana-

gerial decisions and violates the First

Amendment and the Administrative

Procedure Act.Chamber of Com. of the

U.S., Longview Chamber of Com., and

Texas Ass'n of Bus., Petitioners v. U.S.

Sec. Exch. Comm'n, No. 23-60255.



U.S. DEPAR TMENT OF

EDUCATION

The U.S. Department of Education f‌ined

Grand Canyon University (GCU), the

nation’s largest Christian university,

$37.7 million for “lying” to former and

current students about the cost of

its doctoral programs—98 percent of

students ended up paying more to

complete certain doctoral programs

GCU falsely advertised at a lower cost.

The department found GSU violated

the Higher Education Act and federal

regulations prohibiting substantial mis-

representations and that GCU failed

to adhere to the f‌iduciary standard

required of a Title IV participant.

U.S. DEPAR TMENT OF JU STICE

Attorney General Merrick B. Garland

swore in six judges of the eight-

member independent Data Protection

Review Court. The court will serve

as the second level of a new redress

process on Enhancing Safeguards for

U.S. Signals Intelligence Activities.The

court will independently review deter-

minations made by the Civil Liberties

Protection Ocer of the Oce of the

Director of National Intelligence in

response to qualifying complaints sent

by individuals through appropriate pub-

lic authorities that allege certain viola-

tions of U.S. law in the conduct of U.S.

signals intelligence.

WINTER 2024 • VO L. 49 NO. 2

10 | ABA LITIGATION SECTIO N

Published i n Litigation News Vo lume 49, Numbe r 2, Winter 2024. © 2 024 by the Americ an Bar Assoc iation. Repro duced with perm ission. All r ights reser ved. This infor mation or any por tion thereof

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