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Column: Courts finally move to end right-wing judge shopping, but the damage may already be done
Some lawsuits are won by smart lawyers and some on the facts. But nothing spells success as much as the ability to pick your own judge.
That’s the lesson taught by conservative activists who have moved in federal courts to overturn government programs and policies on abortion, contraception, immigration, gun control, student loan relief and vaccine mandates, among other issues.
In recent years they’ve gamed the judicial system to get their lawsuits heard by judges they knew would be sure to see things their way. The process is known as judge shopping, and the committee that makes policy for the federal courts just moved to put an end to it.
The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping.
— Amanda Shanor, University of Pennsylvania constitutional law expert
In a policy statement and official guidance issued last week, the Judicial Conference of the United States said that henceforth, any lawsuit seeking a statewide or nationwide injunction against a government policy or action should be assigned at random to a judge in the federal district where it’s filed.
If that sounds a bit vague to the layperson, its target is crystal clear to legal experts: It’s aimed at right-wing activists and politicians who have filed their cases in federal courthouses presided over by highly partisan judges in Texas. Most of those judges were appointed by Donald Trump.
It would be bad enough if those judges’ rulings applied only within their judicial districts or affected only the plaintiffs. But the judges have issued sweeping nationwide injunctions that block government programs and policies coast-to-coast.
As Ian Millhiser of Vox put it, this is America’s “Matthew Kacsmaryk problem.” Kacsmaryk is the Trump-appointed Texas federal judge who most recently attempted to outlaw mifepristone, a widely used abortion medication, nationwide. His April 2023 ruling has been temporarily stayed by the Supreme Court, but it’s still on the docket, ticking away.
But Kacsmaryk is not alone. As recently as March 8, Judge J. Campbell Barker, a Trump appointee who presides over 50% of the civil cases filed in his rustic courthouse in Tyler, Texas, invalidated a ruling by the National Labor Relations Board broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.
How serious a blow could the judicial conference’s policy be to conservatives aiming to roll back civil rights? Massive, judging from the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Only 48 hours after the conference announced its initiative, McConnell wrote to the chief judges of all judicial districts urging them to ignore the new policy.
This was an audacious move, considering that the presiding officer of the Judicial Council is Chief Justice John G. Roberts Jr., its membership comprises the chief judges of the 12 judicial circuits and one judge from a district court in each circuit, and its role is to set policy for the entire federal court system.
McConnell asserted that only Congress can make the rules for the assignment of federal trial judges, but that’s dubious. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to impose rules of civil procedure in the federal courts, including a rule mandating that all federal judicial districts assign judges randomly to civil lawsuits aimed at statewide or nationwide injunctions. The Judicial Council’s policy isn’t the same as as a Supreme Court rule, but it’s a fair bet that if pushed, the court would issue the rule.
McConnell also asserted that the Judicial Conference had been pressured into acting by Senate Majority Leader Charles E. Schumer (D-N.Y.), but that’s untrue. Although Schumer has spoken out against judge shopping, numerous legal experts and Roberts himself have expressed concerns about the practice.
“The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference’s initiative.
What’s yet unclear is whether the conference’s initiative goes far enough. Its policy statement is described as “guidance,” not a mandate. it acknowledges the district courts’ “authority and discretion” to manage their dockets as they see fit.
Last year, Shanor, with Alice Clapman and Jennifer Ahearn of NYU’s Brennan Center for Justice, proposed that the conference require all judicial districts to use a “random or blind procedure” to distribute cases among all the judges in the district when the litigants seek an injunction or other relief that would extend beyond the district’s borders.
The practice traditionally labeled “forum shopping” is not especially new. The earliest case cited by legal experts dates back to 1842, when a litigant chose to file a lawsuit in federal rather than state court in New York to gain a strategic advantage over his adversary.
Plaintiffs have been known to choose a venue based on local statutes of limitation, or a sense that juries in a region might be more amenable to their case, or because their location may be more convenient for parties or witnesses.
More recently, however, the practice has been heavily abused for partisan and ideological purposes. This results from two trends. One is the increasing partisanship of individual federal judges, especially those appointed by Trump. The second is those judges’ habit of issuing nationwide injunctions against government policies or programs.
Nationwide injunctions can impose parochial partisan ideologies on the whole country. Through 2023, the state of Texas filed more than 31 federal lawsuits challenging Biden administration policies — but not a single one in federal court in Austin, which is the state capital but an island of blue in a red state.
The state had filed seven lawsuits in Amarillo, where by local procedure every one was automatically assigned to Kacsmaryk; six in Victoria, where all civil cases are assigned to Trump appointee Drew B. Tipton; and four in Galveston, where all civil cases come before Trump appointee Jeff Brown.
The rest were filed in divisions with two judges, most of whom are also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Barker issued his NLRB decision, all the cases he doesn’t get are assigned to Judge Jeremy Kernodle, also a Trump appointee.
Although some nationwide injunctions have been lifted by the Supreme Court, that process seldom happens speedily. The result is that the plaintiffs effectively win by losing, as injunctions against government policies can have “the lasting systemic effect of blocking these policies for months or years,” Shanor, Clapman and Ahearn observed.
Kacsmaryk got the mifepristone case for two reasons. First, antiabortion activists knew of his strong antiabortion inclinations. Second, the policy in the Northern District of Texas is to assign cases to judges in the division where they’re filed.
Kacsmaryk is the only judge sitting in the Amarillo division of the Northern District of Texas. So it was an easy call for the mifepristone plaintiffs to file there, knowing that their chance of drawing Kacsmaryk as their judge was 100%.
The same pattern drove plaintiffs to file lawsuits against Biden administration initiatives in the same district’s Fort Worth division, which has two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O’Connor. Both have been sought by conservative litigants. O’Connor also presides over 100% of the cases filed in the district’s Wichita Falls courthouse, where he is the only judge.
Pittman obligingly overturned Biden’s student loan relief program in 2022. Just this month, he ruled the government’s 55-year-old Minority Business Development Agency to be unconstitutional and ordered it opened to contract applicants of all races — obviously a ruling that defeats the purpose of a program designed to help minorities get a start in the business world. O’Connor tried to declare the entire Affordable Care Act unconstitutional in 2018. The Supreme Court overruled him in 2021.
The judicial conference’s initiative is long overdue.
Customarily, rulings by federal trial judges have constituted precedents binding at most on other judges in a particular judicial district or resulted in court orders benefiting only the plaintiffs who filed the case.
Matters are different “when a court effectively can bind the entire nation with an injunction” that applies to “an unlimited range of persons and to conduct occurring in … an equally unlimited array of places,” legal scholar Ronald A. Cass wrote in 2018.
The prospect of sweeping rulings incentivizes “an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.
In its latest incarnation, “litigants effectively have the ability to effectively choose an actual judge,” Shanor told me.
“We don’t know how the policy will be rolled out, what exactly is in it, or how much of it is a recommendation rather than a requirement,” she says. “A policy may be effective, but having a rule would advance the fairness and randomness of the distribution of these nationally important cases, and ensure the perceived legitimacy of the courts.”
One is that the policy won’t apply to cases that have already been assigned to a judge. Another is that litigants can still try to game the system by filing their lawsuits in states from which appeals are heard by circuit courts known to have a particular partisan lean.
That’s a major issue with Texas cases, which are funneled on appeal to the 5th Circuit, sitting in New Orleans. That court has been the source of right-wing decisions so loopy that they’ve been slapped down by the conservative majority on the Supreme Court. Of that circuit’s 17 active judges, six are Trump appointees.
McConnell’s objection to the Judicial Conference’s policy thus should be seen in context. He had more to do than anyone else with embedding Trumpian judges in the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the rich. The conference’s initiative may be the first step toward a more fair-minded judiciary, but it’s a crucial one.
A Los Angeles judge has denied a petition by State Farm and other insurers to dismiss two lawsuits accusing them of colluding to drive homeowners onto California’s FAIR Plan.
The lawsuits, which accuse the insurers of violating the state’s antirust and unfair competition laws, were largely upheld in a decision Thursday by Los Angeles County Superior Court Judge Samantha Jessner.
The judge struck two less significant claims from the lawsuits filed last year, but allowed the case to proceed against more than a dozen major California insurers, led by State Farm General, the state’s largest.
“This is very good news for our people, our plaintiffs, because we’re going to be able to go ahead now with our antitrust claims in both cases,” said Bob Ruyak, an attorney representing the homeowners.
Sevag Sarkissian, a State Farm spokesperson, said the ruling did not “address the accuracy of the allegations” and that the company looks “forward to presenting our case in court.”
The lawsuits allege the companies financially benefited when policyholders were dropped and moved onto the FAIR Plan, since they financially back the insurer that sells more expensive policies which offer less coverage.
One lawsuit led by Todd and Kimberley Ferrier — whose Pacific Palisades home burned down — seeks to compensate 60 homeowners who experienced fire losses exacerbated by the FAIR Plan’s limited coverage.
The other case is a proposed class action that would compensate policyholders for the higher premiums they paid to the plan.
The case has garnered the attention of the federal Department of Justice, which filed a brief this month disputing an argument made by the insurers to have the case thrown out.
The insurers had alleged that they were shielded from antitrust liability under both California and federal law due to a certain legal doctrine.
While the department took no position on the merits of the collusion allegations, it said it files such briefs “where doing so helps protect competition and consumers, including by encouraging the sound development of the antitrust laws.”
The decision by the department to insert itself in the case followed a March post by President Trump bashing State Farm on social media after a visit to Pacific Palisades by administration officials.
The president called State Farm’s treatment of January 2025 wildfire victims “absolutely horrible” and asked EPA Administrator Lee Zeldin for a list of insurers who “acted swiftly” and those that were “particularly bad.”
Also this month, the California Department of Insurance filed an administrative action against State Farm seeking possible suspension of the carrier’s insurance license, alleging State Farm mishandled January 2025 wildfire claims.
The company acknowledges some claims were mishandled but rejected claims it engaged in a “general practice of mishandling or intentionally underpaying wildfire claims.”
The company says the California’s homeowners insurance market is the most “dysfunctional” in the country, with state regulators contributing to “delays and uncertainty that have contributed to fewer choices and higher costs for consumers.”
Andrew here. With President Trump set to arrive back in Washington on Friday, we’re taking a hard look at what his high-stakes summit in Beijing actually achieved. The TL;DR: It didn’t lead to the “grand bargain” many had anticipated.
While there were optics of cooperation between Trump and Xi Jinping, concrete deals — including on Nvidia chips or tariffs — were few. Trump just said that he rejected a proposal from Xi, China’s leader, to help broker a peace between the U.S. and Iran, leaving the critical Strait of Hormuz effectively shut.
Ultimately, the president is coming home to rising oil prices and a slumping bond market.
What was gained (and wasn’t) in Beijing
President Trump departed Beijing a few hours ago, hailing “fantastic trade deals” struck during his two-day summit.
Still, many analysts and investors appear underwhelmed by a lack of details or breakthroughs on key issues like tariffs, Iran and tech restrictions. The summit seems to have fallen short of already diminished expectations.
For the 17 business leaders who accompanied Trump on the trip, the deal flow also appeared thinner than what was announced on his last presidential trip to China, in 2017.
Here are the highlights so far, Grady McGregor writes.
Nvidia and Citi apparently scored wins. Shares in Nvidia, the chipmaker, hit a record on Thursday on reports that Washington had cleared 10 Chinese companies to buy its H200 semiconductors.
That said, Beijing, which is looking to champion domestic rivals like Huawei, has not signaled it would be open to permitting the sales — an issue echoed on Friday by Jamieson Greer, the U.S. trade representative.
And on the eve of the summit, Beijing approved Citi’s application to operate a securities business in China, ending a yearslong regulatory application process. It is unclear whether the presence of Jane Fraser, the bank’s C.E.O., on the trip played any role in Beijing’s decision. Citi shares gained on Thursday.
Boeing landed an order for 200 aircraft, a deal Trump highlighted in a Fox News interview last night.
But shares in the plane maker fell sharply in premarket trading on Friday: The number was short of analysts’ forecasts of at least 300 planes.
The Board of Trade looks like a go. The Washington-Beijing body would manage trade in sectors such as aviation, energy, medical equipment and agriculture. Greer said it would aim to reduce tariffs on roughly $30 billion worth of goods.
He added that he expected the tariff truce the countries struck last fall in South Korea to be extended.
What’s still unclear:
HERE’S WHAT’S HAPPENING
Major cryptocurrency regulation clears a key hurdle. The Senate Banking Committee passed the Clarity Act, which has been promoted by crypto companies and investors like the venture capital firm Andreessen Horowitz. The bill heads to the full Senate, where it faces a less certain fate.
Federal prosecutors will drop criminal charges against India’s richest man. The move to end the case against the businessman Gautam Adani came after one of his lawyers — Robert Giuffra, who is also one of President Trump’s personal lawyers — met with Justice Department officials, The Times reports. (A presentation by Giuffra said that Adani was willing to invest $10 billion in the U.S., though sources told The Times that the withdrawal of charges wasn’t tied to the offer.) A settlement in a parallel case by the S.E.C. was announced Thursday in which Adani agreed to pay $6 million.
Bill Ackman bets big on Microsoft. The billionaire financier said on Friday that he had acquired a major stake in the tech giant and that he believed in the long-term prospects of its productivity software and its spending on A.I. Other hedge fund managers have bet the opposite: TCI, the firm run by Chris Hohn, recently sold off an $8 billion stake in Microsoft.
The OpenAI trial heads to a conclusion
The high-stakes legal showdown between Elon Musk and OpenAI is finally headed to the nine-person jury.
Over more than seven hours of closing arguments, lawyers for each side sought to paint the other as untrustworthy.
Here are some of the highlights of Thursday’s proceedings.
Can anyone trust Sam Altman? That was again the central attack by Steven Molo, Musk’s lead lawyer, who has argued that Altman, the OpenAI chief, deceived Musk, a fellow founder, about plans to convert the company from nonprofit to for-profit.
Molo told jurors that five witnesses had called Altman a “liar,” and he hammered home his point with a creative metaphor:
Imagine that you’re on a hike, and you come upon one of those wooden bridges that you see on a trail, and it’s over a gorge. There’s a river that’s 100 feet below and it looks a little scary, but a woman standing by the entry to the bridge says, “Don’t worry, the bridge is built on Sam Altman’s version of the truth.” Would you walk across that bridge? I don’t think many people would.
Can jurors trust Musk’s version of events? OpenAI’s lawyers, from the law firm Wachtell, Lipton, Rosen & Katz, argued that the billionaire knew about the company’s plans for for-profit conversion earlier than he admitted to and that the statute of limitations for his claims had passed.
Referring to Musk’s claim that he hadn’t read most of a 2018 email about OpenAI’s plans to seek outside investment, Sarah Eddy, a lawyer for OpenAI, said:
Here you have one of the most sophisticated businessmen in the history of the world and he claims he didn’t read a four-page summary term sheet.
The outcome of the trial could drastically alter the A.I. landscape. If OpenAI loses, its operations could be disrupted at a time when rivals are gaining steam.
Figma’s C.E.O. on surviving the “SaaSpocalypse”
The artificial intelligence boom has been a tale of haves and have-nots. Some companies have benefited mightily, most recently the chip maker Cerebras, whose stock shot up 68 percent in its debut. But many enterprise software providers have been walloped.
One of them was Figma, the design-software maker whose shares have tumbled since it went public last year. But as it reported strong quarterly earnings on Thursday, its C.E.O., Dylan Field, spoke with Michael de la Merced about why he believed his company was poised to survive, and even thrive. Here are our takeaways after the conversation.
Remember the “SaaSpocalypse”? Referring to “software-as-a-service,” it referred to investors’ worries that tools like Anthropic’s Claude Code would devastate the entire category of subscription-based software companies, like Figma.
Figma appears to have dispelled at least some of those worries:
The company’s results held up after an A.I.-related change in pricing. For most of its existence, Figma charged companies per user (known as seat-based pricing). But A.I. agents that can do work once reserved for humans promise to drastically reduce how many “seats” customers need to pay for.
In mid-March, Figma switched to a system in which it charged users for how much A.I. they used past a certain amount. The company said that more than 75 percent of its business users kept using A.I. tools despite the cap.
The result: Shares in Figma are up more than 10 percent in premarket trading since the report.
“Market narratives are market narratives,” Field said to DealBook about the SaaSpocalypse sell-off, playing down the investor concern while pointing out Figma’s strong performance.
“The way we see it, A.I. is going to create more software than ever,” he said. He added, “Design matters.”
But Field remains on guard. Makers of A.I. models have muscled into Figma’s territory, notably Anthropic, which in March introduced Claude Design, a tool seen as a competitor of sorts. (Only three days before, Mike Krieger, a senior Anthropic executive, resigned from Figma’s board; Field reportedly complained about the situation.)
“You have to take a company like Anthropic seriously,” Field told DealBook.
Picture of the day
The musical playlist for Thursday’s state dinner in Beijing for President Trump drew big buzz on social media. It contained some Trump favorites, including the Village People hit “Y.M.C.A.”
Talking A.I. with Circle’s C.E.O.
Every week, we’re asking a leader how he or she uses artificial intelligence. This week, Jeremy Allaire, who leads the stablecoin issuer Circle, told Sarah Kessler that he had built a “C.E.O. prioritizer.” The interview has been condensed and edited for clarity.
How do you personally use A.I. at home or work?
One interesting one is a C.E.O. prioritizer. If there’s a request for me to meet someone or do something, you go to the agent and it interrogates you about it and does background research. Then it assigns a one-to-five score, with one being “Completely ignore it” and five being “This is a highly strategic use of your time.”
Circle wants to be part of the infrastructure that helps A.I. agents spend money. Tell me more about that.
The primary units of work in the economic system are going to be executed by A.I. agents. And increasingly, it’s going to be agents that are operating in teams.
You need an economic system to support that. We need a way for one agent to access and use the services of another agent. For example, you might have research data in a particular domain of biology, and I want to make that available to A.I.s to consume. And it’s going to be 5 cents, 10 cents. Whatever it is, you receive that payment, and the A.I. then can consume that data and use it.
And this transaction would take place via stablecoin and not dollars, because there is less friction and these are tiny transactions?
There’s no payment system in the world except for something like USDC that can conduct a transaction for a fraction of a penny. Or even 5 cents or 10 cents. And it’s all programmable.
You said on your latest earnings call that 85 percent of your employees are using A.I. coding and automation tools. What does that look like?
We’re able to basically go through the entire software life cycle with A.I. agents conducting work. Agents are seeing feature requests, picking them up, coding and submitting the code for review. We have other agents that perform code review. Humans then obviously come in to do subsequent reviews.
What about outside of engineering?
It’s in every single function. If you want to build a creative strategy for a campaign, there’s a whole agentic workflow. If you are creating public communications content — we’re a regulated company, so we have very strict guidelines — there’s an A.I. that will vet all of your content and point out the issues with it.
THE SPEED READ
Deals
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Investors led by Egon Durban, a C.E.O. of the tech investment firm Silver Lake, have reportedly struck a deal to buy 25 percent of the Las Vegas Raiders at a $9.9 billion valuation. (CNBC)
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Michael Carr, a longtime top M.&A. banker at Goldman Sachs, died on Tuesday. He was 68. (Bloomberg)
Politics, policy and regulation
Best of the rest
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Boeing and Toyota are said to have donated $1 million each to fund a reality-TV video series starring the transportation secretary, Sean Duffy. (WSJ)
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“In a City of Big Dreams, Many Young Adults See a Cloudy Future” (NYT)
We’d like your feedback! Please email thoughts and suggestions to dealbook@nytimes.com.
The frustratingly unforgettable Kars4kids jingle, which has been worming its way into listeners’ brains for decades, is officially banned from the airwaves in California.
While the 1-877-KARS4KIDS song has been called one of the most memorable jingles in history, a court has ruled it is misleading.
A California man took the group behind it to court, saying he donated an old car to Kars4Kids, thinking its value would be used to help underprivileged children. He didn’t know the money generated was used to support Oorah, a Jewish organization that helps fund young adult trips to Israel.
An Orange County court judge ruled late last week that the New Jersey-based group’s advertisements were misleading because they omitted the company’s religious affiliation and hid the charity’s true mission.
The charity organization violated state laws against false advertising and unfair competition, the court ruled.
“The failure to disclose that funds benefit adults and families — and that this support is contingent upon a specific religious affiliation — is a material omission,” the ruling states.
Kars4Kids must pull its advertisements from the state within 30 days. Any new advertisement in California must clearly disclose the nonprofit’s religious affiliation and specify for whom the money will be used, the court ruled.
A Kars4Kids spokesperson said the ruling is deeply flawed, and the organization will appeal.
“We believe this case was nothing more than a lawyer-driven attempt to siphon off charitable funds for their own gain,” the spokesperson said. “The law and the facts are clearly on our side.”
The jingle first aired in the 1990s and has been loved and loathed by listeners ever since.
It has been the subject of talk show commentary and featured in “The Simpsons.”
Most donations go to help Jewish youth and families, the company’s chief operating executive, Esti Landau, said during her testimony.
Oorah runs a matchmaking program for Jewish youth and funds gap year trips to Israel for 17- and 18-year-olds. The company also used donations to purchase a $16.5-million building in Israel.
“The evidence also shows that children, especially needy or underprivileged children, are not the recipients of the proceeds of the donations,” the ruling states.
Kars4Kids has made it easier to donate old cars to benefit children and families across the country, which includes continued support throughout young adulthood, the company spokesperson said.
This isn’t the first time Kars4Kids has faced accusations of misleading listeners. Oregon, Pennsylvania and other states have also found the charity organization has misleading solicitation practices.
Californians account for a quarter of the company’s funds, yet the nonprofit has limited programs in the state, according to court documents. The organization claims to help thousands of children, including hundreds in California, according to a Kars4Kids spokesperson.
The charity’s infamous tune was catchy enough to convince California resident Bruce Puterbaugh to donate a 2001 Volvo XC. The car was nonoperational and not under his name, but was left in his care.
The car was valued at $250, and Puterbaugh said he felt deceived when he found out the money wouldn’t help young children. He originally sued the company in 2021.
“I feel taken advantage of by the ad and information that was not there,” Puterbaugh said in his testimony.
A donor would have to navigate the nonprofit’s website to learn about its religious mission.
“These omissions are inherently deceptive,” the court ruling states. “Broadcasting this jingle repeatedly over two decades is fraudulent.”
A Kars4Kids spokesperson said that the company’s website clearly states its Jewish affiliation.
The court sided with Puterbaugh and ordered the nonprofit to pay him $250 as restitution for his donated vehicle.
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