BG’s 2022 In Review

Passionately practicing law while doing good work for our clients and communities is at the heart of what we do here at BG.

In our “2022 In Review” newsletter, we highlight the work we’ve done for our valued clients (including a sneak peek of a couple of early 2023 successes), introduce our new partners and associates, and spotlight our pro bono work and diversity initiatives. Thank you for taking just a few moments to flip through its pages – we hope you enjoy it.

Click on the link here to open the newsletter in a beautiful magazine-style flippable format.

Federal Appeals Court Rejects J&J Texas Two-Step Maneuver In Huge Victory For Plaintiffs Harmed By J&J Baby Powder


Washington, D.C.: In a huge victory for individuals grievously harmed by Johnson & Johnson baby powder, the Circuit Court of Appeals for the Third Circuit roundly rejected Johnson & Johnson’s attempt to shovel all 38,000 cases into a brand-new subsidiary which then, within hours of creation, declared bankruptcy. In strong language, the federal appeals court found that the JNJ/LTL petition “has no valid bankruptcy purpose” and dismissed the bankruptcy in its entirety, reversing a ruling by a lower bankruptcy court.

The dismissal of the LTL bankruptcy now allows plaintiffs harmed by J&J’s consumer products to continue pursuing justice before a jury trial of their peers, a right afforded them by the United States Constitution.

Brian A. Glasser, founding partner of the national law firm Bailey & Glasser, LLP, was co-lead counsel to the trial team vindicated by the appeals court. Mr. Glasser states today: “J&J has no special right to put talc victims in a bankruptcy box. It now has to face these claims in front of juries around the nation.”

Specifically, Mr. Glasser argued at trial that Johnson & Johnson’s choice of bankruptcy as means to control its liabilities costs was invalid because “LTL was never in financial distress during its brief existence” because the phantom subsidiary was “eminently solvent” as it enjoyed access to more than $60 billion in Johnson & Johnson funds.

The Third Circuit agreed with Mr. Glasser in its opinion, finding that “we cannot agree LTL was in financial distress when it filed its Chapter 11 petition. The value and quality of its assets, which include a roughly $61.5 billion payment against J&J and New Consumer, makes this holding untenable.” Continue Reading

Selling Your Amazon Business? Not So Fast!

Jeff Craven

The 1970s rock band The Eagles had a verse in their hit Hotel California: “You can check-out anytime you’d like, but you can never leave.”

While Amazon sellers do not face quite the same predicament envisioned by the Eagles, you may feel a bit like you’re trapped in your own “Hotel California” because selling your Amazon business is not a simple process.

Your Amazon Services Business Solutions Agreement (“Agreement”) mandates that “You may not assign this Agreement, by operation of law or otherwise, without our prior consent.” Amazon is well known for not granting consent, at least not with any sense of urgency. You are, however, permitted to assign your rights and responsibilities under the agreement to an Affiliate, (any other entity that is under common control with the Amazon Seller) so long as you remain liable for obligations that arise prior to the assignment.

But if your proposed buyer is not an Affiliate – and they rarely are – you could conclude that the Agreement leaves you without control of your destiny. Not so. Continue reading “Selling Your Amazon Business? Not So Fast!”

“Enough Is Enough”: Female Athletes Secure Settlement Agreement Ensuring Michigan State University’s Title IX Compliance for Years to Come

“Enough is enough” – a two-year battle ended with Michigan State University agreeing to undergo a comprehensive Gender Equity Review and create a Gender Equity Plan to bring it into full Title IX compliance by the 2026-27 academic year. This settlement will positively shape MSU’s athletics program for years to come. Bailey Glasser partners Lori Bullock and Joshua Hammack fought tenaciously to get justice for the MSU female student-athletes and were ready to go to trial in February before MSU decided to settle.

“If It Ain’t Broke, Don’t Fix It” – SCOTUS Examines Expanding the Attorney-Client Privilege for Dual Purpose Communications

Katherine E. Charonko and Elizabeth L. Stryker

The Supreme Court is currently considering a case that could expand the scope of the attorney-client privilege in the context of dual-purpose communications – such as, in this case, communications made to a law firm that also prepares tax returns. The question before the Court is: what is the appropriate test to determine whether a communication involving both legal and non-legal advice is protected by the attorney-client privilege? This case, In re Grand Jury, concerns documents that the Petitioner, a law firm specializing in tax law, claims are privileged. Petitioner asserts that these allegedly privileged materials concern tax law issues that arise upon expatriation from the United States and include legal advice regarding determining ownership of cryptocurrency assets, appropriate methods for asset valuation, and tax filing strategies. The Petitioner law firm also prepared filings for the client, an early promoter of bitcoin, including a certification of compliance with expatriation tax requirements. Continue reading ““If It Ain’t Broke, Don’t Fix It” – SCOTUS Examines Expanding the Attorney-Client Privilege for Dual Purpose Communications”

Bailey Glasser’s Support of the Pension Rights Center

Bailey Glasser was delighted to sponsor the Pension Rights Center’s event on October 26th celebrating the life and legacy of Karen Ferguson. Karen was the Founder of the Pension Rights Center and a tireless advocate who dedicated her life to protecting the retirement security of workers, retirees, and their families. In further recognition of Karen’s legacy, we are also glad to direct a $24,831 cy pres award to the Pension Rights Center to support their mission ensuring individuals receive and retain the retirement benefits they have earned. We have deep experience fighting for the rights of workers and retirees across the country. Our lawyers have recovered hundreds of millions of dollars under the ERISA law for our clients and have fought tenaciously (including winning before the United States Supreme Court) to protect their money and legal rights.

U.S. Supreme Court Rejects Michigan State University’s Appeal, Allowing Title IX Discrimination Case to Proceed


In a Title IX victory for women student-athletes, BG partners Lori Bullock and Josh Hammack successfully defeated cert in the U.S. Supreme Court after the high court rejected Michigan State University’s petition to review the Sixth Circuit’s ruling. This denial from the U.S. Supreme Court paves the way for the Title IX discrimination suit to proceed for the female swimmers and divers who allege MSU violated Title IX by not providing enough opportunities for women athletes to participate in sports.

Bailey Glasser Lends A Helping Hand To A DC Entrepreneur

Congratulations to DC entrepreneur Skyler Kelley for securing lease rights to open a new Brij Coffeehouse kiosk at the Walter E. Washington Convention Center in Washington, D.C. Drawing upon her lived experience as an unhoused single mother, Skyler’s vision includes reinvesting a portion of Brij’s earnings in the community through nonprofits that help neighbors in need. Skyler is passionate about eradicating homelessness and bridging gaps among D.C.’s diverse community. Bailey Glasser attorneys Kurt Gleeson, Michael Murphy, Lorren Patterson, and Greg Payton were delighted to work with Skyler on a pro bono basis to secure the lease and handle several corporate organizational matters for her company.

New Non-Compete Legislation Takes Effect in D.C.

by J. Jeffrey Craven, Michael de León Hawthorne, and Abraham B. Reiss

Introduction and Background

Washington, D.C.’s new non-compete law, the “Non-Compete Clarification Amendment Act of 2022” (the “Amended Act”) went into effect last month. As of October 1, 2022, employers operating in the District of Columbia are prohibited from using most non-compete provisions, with key exceptions. The Amendment Act is not retroactive: non-competition agreements predating October 1, 2022, are not affected, although employers may still want to review such non-compete provisions with their legal counsel.

The new legislation represents a toned-down version of the “Ban on Non-Compete Agreements Amendment Act of 2020,” an outright ban on non-competes covering nearly all D.C. employees, passed by the city council in December 2020. The 2020 ban, which became law in January 2021, would have constituted one of the most employee-friendly non-compete laws in the country. However, significant backlash from D.C. business interests effectively pressured the city council to delay its implementation and draft a more modest version of the law. On June 12, 2022, the council passed the Amended Act, which includes important employer-friendly exemptions that had been requested by the D.C. business lobby.

Covered and Exempted Employees

All current and prospective non-governmental employers in D.C. are prohibited from using non-compete language in agreements with their “covered employees.” Covered employees are defined as workers who do not qualify as “highly compensated” (discussed below) and either spend more than 50% of their work time for their employer in the District or spend a “substantial amount” of their work time in D.C. and not more than 50% in another jurisdiction. Both remote and in-person employees qualify, as well as newly hired employees who have yet to begin working, provided an employer can reasonably anticipate that they will spend most of their work time in D.C.

Employers may use non-compete restrictions for their “highly compensated” employees, defined as those whose total annual compensation, including wages or salaries as well as bonuses, commissions, vested stock, and overtime pay, exceeds $150,000. For medical specialists, the minimum qualifying annual compensation is $250,000. However, non-competes for these employees must clearly stipulate any geographic limitations and the length of time covered after separation is capped at 1 year (2 years for medical specialists). “Broadcast employees” do not qualify as highly compensated, regardless of what they earn and are defined by the Amended Act as any “on or off-air creator (such as an anchor, disc jockey, editor, producer, program host, reporter, or writer)” working at any D.C. station or network that provides broadcast services. Minimum qualifying annual compensation values will be adjusted based on the local Consumer Price Index beginning on January 1, 2024.

The new law also includes an anti-moonlighting provision allowing employers to restrict employees who also work simultaneous, separate employment. Employers may use non-compete provisions for such simultaneous employment when they “reasonably believe” that their employee’s second job would result in a conflict of interest, disclosure of confidential information, or the breach of industry rules or local or federal laws and regulations. The legislation also permits non-competition provisions in the context of long-term incentive agreements in which employers award bonuses, equity, and/or stock as performance-based rewards.

In some professions, governing associations already bar the use of non-competes. For instance, the ethics rules of the American Bar Association (ABA) prohibit non-competition clauses in agreements among attorneys.

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