Judicial Notice (04.19.26): Please Stop!
A judge’s excited utterances against Trump, a sweeping verdict against Live Nation’s predations, a halt to a high-profile contempt inquiry, and an impressive new boutique.
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Last Wednesday, I flew up to Ithaca to speak about Trump v. Biglaw to the Cornell Federalist Society. I didn’t know they had invited the controversial conservative lawyer John Eastman to address them on Thursday—and on Wednesday night, just hours after his disbarment was upheld by the California Supreme Court, Eastman joined me and some of the FedSoc officers for dinner.
I was nervous about the prospect of dining with Dr. Eastman, since I have criticized him somewhat harshly in the past. But we wound up having a perfectly pleasant dinner, despite our differences on everything from January 6 to birthright citizenship.
While I understand that many Eastman critics would be unwilling to break bread with him, I believe it’s important to spend time with people we disagree with. I also used the occasion to do some reporting, asking him about his disbarment. He told me he plans to appeal—and he believes that the U.S. Supreme Court’s recent ruling in Chiles v. Salazar, aka the conversion-therapy case, supports his claim that his election-related legal work for Donald Trump was a proper exercise of his free-speech rights as a lawyer. As Justice Neil Gorsuch wrote in Chiles, “the First Amendment’s protections extend to licensed professionals much as they do to everyone else.”
A housekeeping note (based on reader correspondence I’ve recently received): if you need to update the email address where you receive OJ, simply follow these instructions (or email support@substack.com with the old and new addresses, and they’ll fix it). If you subscribe, I want to make sure you’re getting your full value.
Now, on to the news.
Lawyers of the Week: Jeffrey Kessler, Eva Cole, Jen Parsigian, Josh Hafenbrack, Johanna Hudgens, Jonathan Hatch, Adam Gitlin, and the entire trial team in United States v. Live Nation.
Not many Biglaw partners get profiled and interviewed by Rolling Stone. But not many partners qualify as legal “rock star[s],” to use the sobriquet that publication bestowed upon Jeffrey Kessler, co-executive chairman of Winston & Strawn, and—when he’s not busy running that 1,000-lawyer firm—a top trial lawyer, focusing on antitrust as a practice area and sports and entertainment as an industry.
Given his expertise in trying cases, antitrust, and sports and entertainment, Kessler was a perfect choice to pick up the plaintiffs’ case in United States v. Live Nation, the sprawling, complex, years-long antitrust case against the world’s largest live-entertainment company (and owner of Ticketmaster, the concert giant that merged with Live Nation in 2010). Why did Kessler and Winston need to step in? As I explained last month, the U.S. Department of Justice was leading the charge in this case—but after the Trump administration and six states reached a surprise settlement with Live Nation in early March, the 33 other states (and D.C.), which wanted to continue pursuing Live Nation, needed a new quarterback for the trial team.
Kessler had only eight days to get up to speed with the case, which was already being tried before a jury and Judge Arun Subramanian (S.D.N.Y.). Kessler and his colleagues pulled off that feat, then went on to score an across-the-board win for the plaintiffs in this landmark antitrust litigation. As you can see from the lengthy verdict form, the jury found liability on all claims—a combination of federal and state antitrust, unfair trade practices, and consumer protection laws. (In a statement, Live Nation emphasized that the jury’s verdict “is not the last word,” and the company will be disputing both liability and damages in post-trial motions and on appeal.)
In an interview with Ross Todd of Am Law Litigation Daily, which named him Litigator of the Week, Kessler shared the victory with the members of his “trial SWAT team.” That group included Eva Cole, Jen Parsigian, Josh Hafenbrack, and Johanna Hudgens, from Winston; Jonathan Hatch and Adam Gitlin, from the New York and D.C. AG’s offices, respectively; and, in Kessler’s words, “a group of hard-working lawyers from the 34 states that remained in the case.”
In light of her role in this epic, plaintiff-side win, I’m looking forward to speaking with Eva Cole on May 6. I’m moderating a panel about Biglaw’s move into plaintiff-side litigation, featuring Cole, Paul Hastings partner Ryan Phair, and Burford managing director Evan Meyerson. For details and to RSVP, head over to the event page.
Other lawyers in the news:
Speaking of top trial lawyers, Hailey Fuchs penned a fun profile of David Oscar Markus for Politico. His highest-profile client right now isn’t as sympathetic as states going after Ticketmaster: Markus represents Ghislaine Maxwell, the convicted sex offender and ex-paramour of Jeffrey Epstein. (If you enjoy Fuchs’s piece, give a listen to my podcast interview of Markus.)
Speaking of lawyers who great results for clients, kudos to Roberta Kaplan and her team at Kaplan Martin—including Brandon Trice, Max Crema, Avita Anand, Thomas Lloyd, and Olivia Berci—for getting the Trump administration to release $60 million in withheld funding for Manhattan’s Second Avenue subway extension. (As a straphanger myself, I’m personally thankful for this win.)
Maria Medetis Long (S.D. Fla.), an experienced career prosecutor, is no longer part of the investigation into former CIA director turned Trump critic John Brennan. According to CNN, which first reported on her departure, she was removed by the DOJ; according to The Times (gift link), she withdrew over concerns about the viability of the potential case against Brennan. The investigation into Brennan—which reportedly focuses on allegations that he made willfully false statements about the DOJ investigation of Russian interference in the 2016 election, during a 2023 congressional deposition—will now be led by former U.S. attorney Joseph diGenova, an outspoken critic of the Russia probe.
In memoriam:
Ishmael Jaffree—the plaintiff in the famous school-prayer case of Wallace v. Jaffree, as well as a lawyer himself—passed away at 80. He actually died in 2024, but his passing didn’t become public until last week, when it was reported by The New York Times (gift link, via SCOTUStoday).
Former Virginia lieutenant governor Justin Fairfax killed his wife, Cerina — and then himself—in their home on Thursday morning, as reported by The Washington Post (gift link). A graduate of Columbia Law, former federal law clerk and prosecutor (E.D. Va.), and Biglaw alum, Fairfax was a rising star of the Democratic Party, until his career was derailed by sexual-assault allegations. He and Cerina, a dentist who was devoted to her patients, were divorcing.
May they rest in peace.
Judge of the Week: Judge Richard Leon!
Last weekend, the D.C. Circuit remanded the legal challenge to Trump’s White House ballroom project to Judge Richard Leon (D.D.C.), who had ordered a halt to the controversial construction project. The panel majority, consisting of Judges Patricia Millett and Bradley Garcia, directed Judge Leon to take another look and clarify certain aspects of his ruling. Judge Neomi Rao dissented; she would have stayed the preliminary injunction entirely, allowing the construction to proceed.
On Thursday, Judge Leon issued a new ruling, which Reuters described as “peppered with his trademark exclamation marks and sarcasm.” He once again ordered a halt to construction, but stayed his order to allow time for appeal. Donald Trump, a fellow devotee of the exclamation point, promptly took to Truth Social to trash Judge Leon:
The White House doesn’t have a Ballroom (No Taxpayer Money!), which Presidents have desperately wanted and desired for over 150 years, but a Trump Hating, Washington, D.C. District Court Judge, a man who has gone out of his way to undermine National Security, and to make sure that this Great Gift to America gets delayed, or doesn’t get built, is attempting to prevent future Presidents and World Leaders from having a safe and secure large scale Meeting Place, or Ballroom….
This highly political Judge, and his illegal overreach, is out of control, and costing our Nation greatly. This is a mockery to our Court System! The Ballroom is deeply important to our National Security, and no Judge can be allowed to stop this Historic and Militarily Imperative Project. Thank you for your attention to this matter!
The D.C. Circuit gave its attention to this matter. In a two-page order, the panel expedited the appeal, with oral argument set for June 5, and administratively stayed Judge Leon’s preliminary injunction—i.e., construction can continue for now.
This isn’t Judge Leon’s first entanglement with the Trump administration. Last year, he ruled against the administration in WilmerHale’s challenge to the executive order against it, as well as the Pentagon’s attempt to reduce Senator Mark Kelly’s retired military rank and pension pay (after Kelly urged troops to reject unlawful orders).
As noted by Reuters, Judge Leon, 76, has “conservative bona fides.” Prior to his 2002 appointment by George W. Bush, he worked for Republicans on Capitol Hill and at the DOJ during the Reagan administration. He also counseled now-Justice Clarence Thomas, a college classmate, during his contentious confirmation—and I can’t help wondering what Judge Leon thinks of his old friend’s votes and opinions in Trump-related cases. (As for Judge Leon’s own writings, I’m with Advisory Opinions: “No more exclamation points in judicial opinions!!!”)
In other news about judges and the judiciary (with my usual thanks to Howard Bashman of How Appealing, who was quite busy this weekend):
As reported by Fox News and confirmed by Jan Crawford of CBS News, Justice Samuel Alito is not retiring from the Supreme Court this year (nor is Justice Clarence Thomas, but we already knew that). I’m relieved by the reported correctness of my predictions—and by not having to cover a SCOTUS retirement and confirmation in this already exhausting year, barring something unforeseen. (But if we do have a surprise vacancy, Donald Trump said he’s ready, with a list of potential candidates already prepared.)
Speaking of the Court, Jodi Kantor and Adam Liptak published a fascinating article in The New York Times (gift link), based on leaked memos (gift link), about a 2016 case that they and some legal scholars view as “the birth of the modern shadow docket.” (But see, e.g., this thread by Sarah Isgur—author of Last Branch Standing, and my most recent podcast guest—noting pre-2016 examples of newsworthy rulings on the interim docket.) I’ll have more on this later; I agree with Ed Whelan that the significance of the memos’ substance is debatable, but “the fact that someone leaked them to NYT is very newsworthy.”
To her credit, Justice Sonia Sotomayor apologized for what she described in a statement as “inappropriate” remarks about a colleague—unnamed in the statement, but known to be Justice Brett Kavanaugh. (I’ve updated my stories discussing her comments, last week’s Judicial Notice and my Isgur interview.)
To his credit, Chief Justice John Roberts, while at the University of Virginia to receive an award, made surprise visits to two UVA Law classes—to the disbelief of students, one of whom “thought it was a prank at first.”
Congratulations to Judges J. Paul Oetken (S.D.N.Y.) and Jesse Furman (S.D.N.Y.)—not on their track records as Supreme Court feeder judges (although they are), but on being named the #1 and #2 favorite federal judges of New York litigators. Kudos also to Chief Judge Laura Swain (S.D.N.Y.) and Judge Frederic Block (E.D.N.Y.), who took third and fourth place in the poll by Bloomberg Law.
In nominations news, the Senate confirmed two state-court judges to district-court seats, Judges John Shepherd (W.D. Ark.) and Chris Wolfe (W.D. Tex.). Fun fact: John Shepherd is the son of Eighth Circuit Judge Bobby Shepherd, one of around 18 Republican-appointed circuit judges who’s eligible to take senior status but hasn’t.
Job of the Week: an opportunity for a corporate M&A associate in Chicago.
Lateral Link is assisting a repeat client, a top-ranked Am Law 25 firm, in its search for a corporate M&A associate with 2–6 years of experience. The role involves advising public and private companies, as well as private equity sponsors and their portfolio companies, on a broad range of transactions—M&A, stock and asset purchases, LBOs, platform and add-on acquisitions, joint ventures, and growth equity investments. Associates receive hands-on deal experience, meaningful responsibility, and early client interaction, with strong long-term partnership and in-house opportunities. Interested and qualified candidates should submit their résumé here or email Jesse Hyde at jhyde@laterallink.com.
