Judicial Notice (06.11.22): Chesa'd Outta Town
A progressive prosecutor gets pulled, Cravath goes to D.C., and other legal news from the week that was.
Ed. note: This week, Judicial Notice is going to both paid and free subscribers, thanks to the sponsored Jobs of the Week at the Institute for Free Speech. The Institute is hiring at least two senior attorneys who can first-chair important free-speech cases—rare opportunities to work in Washington D.C. or remotely with a growing team to litigate for free speech. You can learn more and apply here, or you can help them find good candidates by forwarding this post to anyone suitable for the position.
Going into June, the Supreme Court faced a supreme backlog, with opinions in 53 percent of argued cases still outstanding—the biggest backlog since at least 1950, according to Adam Feldman of Empirical SCOTUS. After four decisions this week, none of them monumental, things look similar. We’re awaiting 29 out of 59 decisions, including complex and controversial ones like Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association Inc. v. Bruen.
Although the Court will issue decisions this coming Monday and Wednesday, I’m not expecting any blockbusters. So—programming note—I’m taking a pseudo-vacation to the Jersey Shore, and I might not write much between now and the next edition of Judicial Notice (unless SCOTUS surprises us).
While I’m gone, feel free to listen to the newest episode of Movers, Shakers, and Rainmakers. My co-host Zach Sandberg and I interviewed Andre Gharakhanian, founder of Silicon Legal Strategy and a leading lawyer to both emerging companies and venture investors. If you follow the startup legal scene, it’s a must-listen.
Now, on to the news.
Lawyer of the Week: Chesa Boudin.
If you have any doubt that San Francisco is basically a failed state (or city), read Nellie Bowles’s piece in The Atlantic, which David French accurately describes as “wonderfully written, haunting, and sad.” Bowles raises the possibility that S.F. “just might be starting to pull itself back together”—and as evidence, she cites the fact that San Franciscans just voted District Attorney Chesa Boudin out of office.
Boudin has a fascinating personal story and impressive pedigree. His parents, Kathy Boudin and David Gilbert, belonged to the Weather Underground, a militant left-wing organization. When Chesa was a young child, his parents received lengthy prison terms for their roles in the Weather Underground’s robbery of a Brink's armored car, in which two police officers and a security guard were killed. Chesa was raised by his adoptive parents, Bill Ayers and Bernardine Dohrn, also members of the Weather Underground. (Another fun family fact: Chesa’s uncle is retired First Circuit judge Michael Boudin, a huge SCOTUS feeder judge back in the day.)
Chesa Boudin graduated from Yale College and Yale Law School (plus Oxford, where he was a Rhodes Scholar). After clerking for Judges Margaret McKeown (9th Cir.) and Charles Breyer (N.D. Cal.), he served for several years in the San Francisco Public Defender’s Office. In 2019, he ran for San Francisco District Attorney on a progressive platform, and he (narrowly) prevailed.
Although overall crime rates haven’t changed much since Boudin took office, many San Franciscans are fed up—with a spike in burglaries, a rise in anti-Asian hate crimes, tent encampments, and public drug use (and defecation). They took it out on Boudin, whom many saw as arrogant or as “a warrior for the downtrodden,” according to former San Francisco mayor Willie Brown, rather than a humble, hardworking prosecutor concerned with quality-of-life issues. So Boudin got recalled, with 60 percent supporting removal.
The Boudin recall was local, but it received national coverage as a reflection of a possible shift in attitudes toward crime. For several years, momentum seemed to be on the side of criminal-justice reform, including the rise of progressive prosecutors like Boudin who emphasized eliminating cash bail, sending defendants to diversion or rehab rather than prison, and not prosecuting certain low-level crimes. But the strong support for recalling Boudin, in a famously progressive city like San Francisco, suggests that the pendulum might be swinging back in the other direction.
Runners-up for Lawyer of the Week:
Ilya Shapiro. The libertarian legal academic got cleared to work at Georgetown Law—but promptly announced that he wouldn’t be going there after all.
Robert L. McKenna III. After making crass and insensitive comments celebrating his win in a medical malpractice case, the California lawyer is getting lots of flak.
David Boies. He’s the latest star litigator whose billing rate has become public: $1,950 an hour. That’s around what Kannon Shanmugam of Paul, Weiss charges—$1,824 an hour, as of July 2021 (so presumably higher now)—but less than the $2,465 an hour of Neal Katyal at Hogan Lovells. Billing around $2,000 an hour is not uncommon these days for top-tier Biglaw partners.
In nominations news, President Joe Biden announced five new U.S. attorney nominees: Adair Ford Boroughs (D.S.C.), E. Martin Estrada (C.D. Cal.), Gregory Haanstad (E.D. Wis.), Sopen Shah (W.D. Wis.), and Natalie Wight (D. Or.).
Judge of the Week: Justice Brett Kavanaugh.
How did an attempt to assassinate a sitting Supreme Court justice get relegated to page A20 of the New York Times? And it got similar treatment online; see this screenshot by Nate Silver (via Professor Josh Blackman, who noted that some 16 stories got better placement). Here’s what happened, per the Washington Post:
Nicholas John Roske, 26, of Simi Valley, Calif., was charged with attempted murder of a Supreme Court justice after he called authorities and said he was having suicidal thoughts and wanted to kill a specific justice, according to federal prosecutors….
He found his target’s address, according to the affidavit, and arrived in front of [Justice Kavanaugh’s] home about 1 a.m. Wednesday. Two U.S. deputy marshals spotted Roske exiting a cab in front of the home, where he looked at them before turning to walk down the street, according to the court documents detailing Roske’s alleged actions and motivations.
He wore black clothing and carried a suitcase and backpack with weapons and other supplies, including a Glock 17 with two magazines and ammunition, a tactical knife, pepper spray, a hammer, a screwdriver, a crowbar, zip ties and duct tape, along with other gear, according to court documents.
Not long after, according to court documents, the Montgomery County Emergency Communications Center received a call from Roske saying that he had suicidal thoughts and came to kill a specific Supreme Court justice.
Roske was arrested shortly thereafter. Yes, Justice Kavanaugh and his family were at home at the time.
These are frightening times for judges. Just last week, Judge John Roemer of Juneau County, Wisconsin, was shot and killed, allegedly by a defendant he sentenced in 2005.
Last month, the Senate passed proposed legislation, the Supreme Court Police Parity Act, to enhance security for the justices and their families. Although the Act flew through the Senate with bipartisan support, House Democrats blocked a Republican effort to pass the bill by unanimous consent. Democrats want the act broadened to protect Court employees. But that can always be done later; the priority, in light of recent events, should be putting something on the books, however imperfect.
In nominations news, the Senate narrowly confirmed two district-court picks, Jones Day lawyer Robert Huie (S.D. Cal.) and Innocence Project lawyer Nina Morrison (E.D.N.Y.). The Senate Judiciary Committee approved five nominees: Judges John Z. Lee (N.D. Ill.) and Salvador Mendoza (E.D. Wash.), up for elevation to the Seventh and Ninth Circuits, respectively, plus Nancy Maldonado (N.D. Ill.), Gregory B. Williams (D. Del.), and Magistrate Judge Stephen Locher (S.D. Iowa).
Ruling of the Week: May v. Shinn.
On Monday night, I headed to the Loeb Boathouse in Manhattan’s Central Park for the annual dinner of the New York Criminal Bar Association (“NYCBA”), which just celebrated its 50th anniversary. At the dinner, the NYCBA launched the Weinstein Award for Judicial Excellence—named after the late Judge Jack B. Weinstein (E.D.N.Y.), who passed away last year at 100, after many years of service to the judiciary—and bestowed the first Weinstein Award upon one of his former colleagues, Judge Frederic Block (E.D.N.Y.).
In his acceptance speech—a rousing paean to the role of criminal defense lawyers as guardians of the Constitution, as well as a critique of certain injustices of our justice system—Judge Block told us to look out for a forthcoming opinion of his that would address similar themes. That opinion is now out, and it’s his concurrence in May v. Shinn, a Ninth Circuit case where he sat by designation.
Judge Block concurred in rejecting defendant Stephen May’s latest attempt to avoid spending the rest of his life in prison, but explored two factors the judge saw as contributing to an unjust result for May: “the strictures of habeas relief,” and “the emotional overlay that contributes to irrational sentencing when the nature of the crime entails sexual misconduct involving children.” You might not agree with all of his analysis, but the concurrence is thoughtful and heartfelt, reflecting the deep concern for justice that made Judge Block a worthy recipient of the Weinstein Award.
Litigation of the Week: United States v. Tarrio.
Rep. Liz Cheney (R-Wyo.), a U. Chicago Law graduate, is a contender for Lawyer of the Week for the coming week, when the televised January 6 hearings resume and pick up steam. So are other conservative legal luminaries, including former Fourth Circuit judge J. Michael Luttig; Greg Jacob, former chief counsel to Vice President Mike Pence; and former Trump Justice Department officials Jeffrey Rosen, Richard Donoghue, and Steven Engel. Although the January 6 hearings are political rather than legal proceedings, they effectively put former president Donald Trump on trial—and they will, I predict, reflect positively on the role lawyers played in protecting democracy from Trump’s attempt to overturn the will of the American people.
The hearings weren’t the only January 6 development in the news this week. On Monday, a D.C. grand jury returned a superseding indictment charging five members of the far-right Proud Boys, including ex-chairman Henry “Enrique” Tarrio, with seditious conspiracy. They join the Oath Keepers, another far-right group, and its leader, Stewart Rhodes, in being charged with seditious conspiracy. As noted by the New York Times and Washington Post, seditious conspiracy is rarely charged and difficult to prove. But depending on what else we learn about January 6—from the FBI, the Department of Justice, and the January 6 Committee—the jackboots just might fit.
Other noteworthy news in the world of litigation:
More than 90 alleged victims of former USA Gymnastics doctor Lawrence Nassar are suing the FBI, claiming it failed to investigate Nassar even after receiving credible information about multiple sexual assaults.
Sterling Jewelers, corporate owner of Jared and Kay Jewelers, will pay $175 million to settle a long-running class-action lawsuit alleging that it discriminated against tens of thousands of women in pay and promotion.
JetBlue Airways and American Airlines must face the antitrust music, after Judge Leo Sorokin (D. Mass.) denied their motion to dismiss. The U.S. Justice Department and several state attorneys general allege that the airlines’ “Northeast Alliance” is anticompetitive.
After many weeks of trial (and delay), the prosecution of former Theranos executive Ramesh “Sunny” Balwani will soon go to the jury.
At the Tuesday arraignment in Albany of several activists for tenants’ rights, pro-tenant protesters released hundreds of Madagascar hissing cockroaches into the courtroom. If I were there, I would have had a heart attack.
Deal of the Week: the Walton-Penner family buying the Denver Broncos for $4.65 billion.
The deal dramas drag on regarding Twitter, Spirit Airlines, and Kohl’s. So let’s turn to a transaction that appears to have more resolution.
Attention, Walmart shoppers! There’s a deal on… professional sports teams?
Members of the Walton-Penner family—billionaires many times over thanks to their stakes in Walmart, the nation’s largest company by revenue—are branching out. A group of family members led by Rob Walton—a Columbia Law alum, by the way—has reached a tentative agreement to buy the Denver Broncos for $4.65 billion from the Pat Bowlen Trust. The late Pat Bowlen, a graduate of the University of Oklahoma College of Law, owned the team for almost 40 years before his death in 2019.
The Broncos sale, expected to set a record for the purchase price of a U.S. professional sports team, generated lots of work for lawyers and law firms:
For the Walton-Penner group: a Hogan Lovells team including Matthew Eisler, Russell Hedman, Michael Kuh, Timothy Aragon, and Mark Weinstein.
For the Broncos: a Proskauer Rose team quarterbacked by Joseph Leccese, Jason Krochak, and Jon Oram.
For the National Football League, which must approve the deal: a Covington & Burling team led by Peter Zern.
For a rival bidding group led by billionaire Todd Boehly and Clearlake Capital Group: a team led by Charles Baker and Irwin Raij of Sidley Austin.
Also notable: the acquisition of practice-management innovator MyCase by AffiniPay, parent of the payments platform LawPay. When I wrote about MyCase’s acquisition of Docketwise in May, I predicted more M&A activity in legal tech—but I didn’t know it would come so soon and involve MyCase, a serial acquirer, changing hands. For a deep drive into the deal, see Bob Ambrogi’s LawSites.
Law Firm of the Week: Stroock & Stroock & Lavan.
Stroock seems… stricken. As reported by Patrick Smith for the American Lawyer, the firm is reeling from the departure of its highly profitable, 43-lawyer restructuring group, which left for Paul Hastings a few weeks ago. But aside from that loss—a significant one, since the group reportedly generated more than $60 million of the firm’s $260 million revenue in 2021—Stroock has been struggling. While many other firms have been posting record profits in the past few years, Stroock has been flat to down in terms of revenue and headcount.
That relatively weak financial performance is complicating Stroock’s effort to find a merger partner. If its real-estate group, which along with restructuring was the firm’s other premier practice, gets picked off, that would leave Stroock with little to offer in a merger. I could then imagine its remaining lawyers getting hired by other firms—whether individually, in groups, or in a so-called “mass lateral hire”—which would mark the end of the venerable, almost 150-year-old firm. (And in the absence of a formal merger in which a successor entity would take on Stroock’s obligations, the Pension Benefit Guaranty Corporation would be left holding the bag for the firm’s unfunded pension, which costs about $6 million a year.)
Lateral Move of the Week: Cravath launching a D.C. office.
Take your hat off to Cravath, Swaine & Moore. Despite being the poster child for the Biglaw Establishment, the tradition-focused, 200-year-old firm is trying new things. Last year, it replaced its strict lockstep compensation system with a modified lockstep model. This month, it announced the launch of a Washington, D.C. office, its first domestic office beyond its New York headquarters. (It opened in London in 1973.)
“A move like this is a big deal,” veteran legal recruiter Dan Binstock told Bloomberg Law. “But when you’re a firm like Cravath, there’s no compromising on the quality, and it can take years to align the right people at the right time.”
Cravath’s new office, which will open in the fall, will be led by heavy hitters with high-level government experience: Jelena McWilliams, former FDIC chair; Elad Roisman, former commissioner and acting chair of the Securities and Exchange Commission (“SEC”); and Jennifer Leete, former associate director in the SEC’s Division of Enforcement. It comes amid an estimated 50 percent increase in demand for SEC defense work, as Amy Savage of Lateral Link told Law360. And it’s a logical expansion for Cravath, which “has always handled ‘bet the company’ matters for our clients with a nexus to Washington,” according to presiding partner Faiza Saeed.
Runners-up for Lateral Move of the Week:
Paul Hastings is on quite the hiring streak. On the heels of bringing aboard that 43-lawyer restructuring group from Stroock and a four-partner financial-services group from Buckley, it hired Eduardo Gallardo, former M&A co-chair at Gibson Dunn & Crutcher, in New York, and real estate partner Pablo Clarke from Latham & Watkins, in Los Angeles.
You know your boutique has arrived when it starts… spawning other boutiques. Kaplan Hecker & Fink (“KHF”) is only five years old, but it already has what I believe to be its first spinoff firm: Bloch & White, founded by Michael Bloch and Benjamin White, who worked as counsel and a senior associate, respectively, at KHF. As Robbie Kaplan told Bloomberg Law, “Both Michael and Ben are talented young lawyers who were wonderful colleagues to all of us here at KHF. We are so proud and will be wishing them every success.”
Jobs of the Week: opportunities at the Institute for Free Speech.
The Institute for Free Speech, which works to protect and defend the First Amendment’s political speech freedoms, is hiring at least two senior attorneys who can first-chair important free-speech cases—rare opportunities to work with a growing team to litigate for free speech. The location for this position is either at their Washington, D.C. office or remotely anywhere in the United States. Applicants must have a minimum of seven years of civil litigation experience, which may include up to two years of federal clerkships. You can learn more and apply here.
In addition, applications are now open for the 2023-2024 term for the Institute’s First Amendment Fellowship, which allows recent law school graduates, judicial clerks, and mid-career attorneys the chance to gain practical experience litigating constitutional challenges. You can learn more about the Fellowship and apply here. Or you can help the Institute find good candidates, for either the senior-attorney roles or the Fellowship, by forwarding this email to anyone suitable for the position.
And now, if you’ll excuse me, I will attempt to begin my “vacation.” If the weather improves, I’ll take Harlan to the pool or the beach this afternoon. I’ll see you next weekend—unless the justices have other plans….