Judicial Notice (05.19.24): Wifey Did It

Justice Alito and Senator Menendez blame their spouses, Elon Musk pressures a law firm, S&C raids Skadden, and other legal news from the week that was.

Justice Samuel A. Alito and Mrs. Martha-Ann Alito, attending a September 2020 memorial service for Justice Ruth Bader Ginsburg (photo by Andrew Harnik via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

I had a good but uneventful week. I’m happy to report that I’m feeling much better compared to the prior week—and I thank you for all the recommendations on how to deal with eye strain from staring at screens all day.

So let’s go directly to the latest testimonial for Original Jurisdiction, which comes from Youngjin Choi: “I am a U.S.-trained lawyer working for the in-house legal department of a South Korean multinational company in a highly regulated industry. To excel in my role, I need to stay updated on the current developments of the U.S. legal industry. That is why I rely on Original Jurisdiction, the best legal publication for my needs.”

Thanks to Youngjin for the kind words. By the way, my well of testimonials is running low, so I’d welcome some new ones; please fill out this form if you can help.

Now, on to the news.

Lawyers of the Week: Boris Bershteyn and Brendan McShane.

In my recent conversation with Michele Johnson, Global Chair of the Litigation & Trial Department at Latham & Watkins, she highlighted for me a fascinating issue at the intersection of two super-hot practice areas, antitrust and artificial-intelligence law: “Companies are using AI to, among other things, develop algorithmically influenced pricing. Regulators are asking if it’s anticompetitive if the companies are using similar data. We are on the absolute cutting edge of those cases.”

And so it made sense to me when I saw Ross Todd’s latest honorees as Litigators of the Week, Boris Bershteyn of Skadden Arps and Brendan McShane of Latham. Representing Caesars Entertainment, the casino-hotel operator, and Cendyn Group, which makes pricing software used by the hospitality industry, the two just won a big victory in this area.

After hearing arguments from Bershteyn and McShane last month, Judge Miranda Du (D. Nev.) dismissed, with prejudice, a purported class action brought by private plaintiffs alleging that hotels’ use of AI-powered pricing software violates the Sherman Act. Judge Du ruled that “mere use of algorithmic pricing based on artificial intelligence by a commercial entity, without any allegations about any agreement between competitors—whether explicit or implicit—to accept the prices that the algorithm recommends, does not plausibly allege an illegal agreement.”

This was just a trial-court ruling, so the legal battles will continue—whether in this case or similar ones, including litigation currently pending in federal courts in New Jersey and Tennessee. Eventually we’ll start getting opinions from appellate courts—and maybe even the Supreme Court. So in carving out reputations for expertise in this emerging area of law, Skadden and Latham may have hit the jackpot.

In memoriam:

• Christopher F. Edley Jr., a longtime Harvard law professor and former dean of Berkeley Law, passed away at 71, from surgical complications.

• Jonathan Morris—a partner in the New York office of Morgan Lewis & Bockius, where he served as deputy leader of the firm’s global corporate and business transactions practice—passed away at 50, after battling pancreatic cancer.

May they rest in peace.

Judge of the Week: Justice Samuel Alito.

On Thursday, Justice Samuel Alito filed a dissent, joined by Justice Neil Gorsuch, in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd. (discussed below as Ruling of the Week). But that’s not why everyone was talking about Justice Alito this week.