Judicial Notice (08.20.22): Florida Man

Here’s a non-paywalled sample of Judicial Notice, the weekly legal news roundup I send to paid subscribers of Original Jurisdiction.

Governor Ron DeSantis of Florida (photo by Jeff Swensen via Getty Images).

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Getting old: isn’t it the worst? Aside from dying, I guess.

This week I went to the gym to take a class I’ve taken countless times, and I threw out my back. Public service announcement: if you’ve spent the whole day in front of your computer, don’t jump into an exercise class without warming up or stretching first.

My injured state is part of why I’ve been less prolific than usual this week. When you’re not feeling great, it’s hard to summon up the energy to work. And August is not a motivation-filled month; many of my readers are on vacation (and if you’re one of them, I hope you’re enjoying the time away).

On the bright side, my back is already feeling much better. And taking it easy for a few days has given me lots of time to follow the legal news, to which I now turn.

Lawyer of the Week: Andrew Warren.

Speaking of getting old, Florida—a destination of choice for retirees fleeing colder climes—dominated the news this week. Let’s start with Lawyer of the Week: Andrew Warren, State Attorney for Hillsborough County (Tampa).

Or make that former Hillsborough County State Attorney. After Warren joined other progressive prosecutors around the country in signing a pledge declaring that he wouldn’t enforce “prohibitions on sex change operations for minors” and “any laws related to protecting the right to life”—like Florida’s 15-week abortion ban—Governor Ron DeSantis, a top contender for the 2024 Republican presidential nomination, suspended Warren. DeSantis cited the Florida state constitution’s provision allowing him to “suspend from office… any county officer, for malfeasance, misfeasance, [or] neglect of duty.”

On Wednesday, Warren fought back, suing DeSantis in the Northern District of Florida (Tallahassee). Represented by Shumaker Loop & Kendrick and Perkins Coie, Warren alleges in his 28-page complaint that his suspension was unconstitutional. Specifically, Warren argues that he enjoys the prosecutorial discretion to decide which cases to bring and that DeSantis suspended him not for any valid reason, but for exercising his First Amendment rights.

In the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the balance of power between state and local officials when it comes to enforcing state abortion laws is now a critical issue. Almost 100 other prosecutors signed the same pledge that Warren signed, and several of them work in states led by Republican governors. So watch Warren and his lawsuit, a bellwether for how this issue gets sorted out in other states across the country.

On the celebrity-justice front, Amber Heard has hired new lawyers to appeal the verdict against her in the defamation case brought by her ex-husband, Johnny Depp. She’s turning to David Axelrod and Jay Brown Ward of Ballard Spahr, a top defense-side firm for media and First Amendment litigation. One of the lawyers who represented Heard at trial, Ben Rottenborn, will continue to represent Heard as co-counsel, while Elaine Charlson Bredehoft is exiting the case.

In memoriam:

• Andrew Maloney, the former U.S. Attorney (E.D.N.Y.) who successfully prosecuted Mafia boss John Gotti, passed away at 90.

• John Eastman—no, not that John Eastman, but the high-profile entertainment lawyer who represented such boldface names as Paul McCartney, Billy Joel, and Willem de Kooning—passed away at 83.

• Sebastian Graber—who argued before the Supreme Court less than six years out of law school, winning a landmark free-speech case allowing protest on the public sidewalks around SCOTUS—passed away at 70.

May they rest in peace.

Judge of the Week: Justice Juan Manuel Merchan.

Florida made headlines this week, as did everyone’s favorite Florida Man, former president Donald Trump. His legal troubles continue—and he’s having a hard time finding counsel, since any defense lawyer worth their salt is just saying no. And you can’t blame them: one former Trump attorney, Rudy Giuliani, is now a target in the criminal investigation into election interference in Georgia.

Trump’s latest negative news: Allen Weisselberg, former chief financial officer of the Trump Organization, pleaded guilty to all 15 felonies charged by the Manhattan District Attorney’s Office. He admitted to participating in a long-running scheme to avoid paying taxes on valuable, off-the-book perks, and agreed to testify against the Trump Organization at the company’s trial in October (but not against Trump personally). He must pay almost $2 million in taxes, penalties, and interest, and he will likely receive a five-month prison sentence, of which he’s expected to serve 100 days.

The New York Times published a behind-the-scenes look at the negotiations that led to the plea deal, which shows the important role played by Acting Justice Juan Merchan of New York Supreme Court:

Justice Merchan, a former prosecutor who has been on the bench for more than a decade, offered a crucial piece of guidance to Mr. Weisselberg’s team: He said he did not think that white-collar criminals deserved to be spared prison time. And if Mr. Weisselberg was convicted, the judge warned that he would order him into custody that same day. The only way to avoid serving time behind bars, the judge indicated, was if Mr. Weisselberg cooperated and pleaded guilty.

This information helped Weisselberg’s lawyers, Nicholas Gravante Jr. and Mary Mulligan, convince their client that taking the plea agreement was in his best interest. Neither side got exactly what they wanted—Weisselberg isn’t avoiding prison, while Manhattan DA Alvin Bragg isn’t getting testimony from Weisselberg against Trump personally—but that’s often the hallmark of a fair and reasonable deal.

A quick update on last week’s Judge of the Week: as I mentioned on Twitter, Judge David Hurd (N.D.N.Y.) got (justifiably) called out by Latinos for a Fair Judiciary for trying to “rescind” his decision to take senior status. It’s not just inappropriate as a matter of judicial ethics, which was my issue; it also effectively nixes the nomination of Jorge Alberto Rodriguez, “a highly qualified [nominee] who would also make history as the first Latino judge” on the Northern District. It would be great if Judge Hurd would reconsider, but I’m not holding my breath.

Ruling of the Week: Honeyfund.com, Inc. v. DeSantis.

Returning to the Sunshine State, Governor DeSantis, and the First Amendment, Chief Judge Mark Walker (N.D. Fla.) dealt a setback to one of the governor’s signature initiatives, the “Stop WOKE Act.” This Florida law, aimed at combating “woke indoctrination,” tries to tell both private businesses and public-sector educators how they can talk about sensitive topics related to race and sex. (“WOKE” is an acronym for “Wrongs to Our Kids and Employees.”)

In a lawsuit brought by two Florida businesses, the online wedding registry Honeyfund.com and Ben & Jerry’s franchisee Primo Partners, Judge Walker ruled that provisions of the law telling private employers how to teach diversity and inclusion violate the First Amendment. Here’s the opening of the 44-page opinion, widely quoted because of the Stranger Things reference (which I personally think works, but you might disagree; pop-culture references in opinions can be polarizing):

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.

Judge Walker then invites readers to compare NetChoice, LLC v. Moody, which enjoined parts of Florida’s law forcing social-media companies to host speech that violates their standards, with the Stop WOKE Act. Judge Walker was absolutely right to point out the ridiculousness here—and to enjoin enforcement of the Stop WOKE Act’s employer-focused provisions.

A DeSantis spokesperson told the Washington Post that the state plans to appeal, but I wouldn’t bet on reversal; I agree with the law professors who opined to the New York Times that Judge Walker got it right. And the Eleventh Circuit is not the Fifth Circuit; compare how the two courts ruled on similar Florida and Texas social-media laws, with the Eleventh Circuit (correctly) finding Florida’s law unconstitutional.

Alas, Judge Walker’s ruling doesn’t cover the Stop WOKE Act’s provisions targeting educators, which I view as similarly unconstitutional (as explained by the Foundation for Individual Rights and Expression). But a lawsuit was recently filed challenging those provisions too, which I don’t expect to survive First Amendment scrutiny.

Other noteworthy rulings:

• Williams v. Kincaid: The Fourth Circuit held, in an opinion by Judge Diana Gribbon Motz, that gender dysphoria is covered by the Americans with Disabilities Act (“ADA”). Judge Marvin Quattlebaum Jr. dissented, pointing out that the ADA explicitly excludes from its coverage “gender identity disorders not resulting from physical impairments.”

• CREW v. U.S. Department of Justice: In an opinion by Chief Judge Sri Srinivasan, the D.C. Circuit held that the DOJ must release the full, unredacted version of the Office of Legal Counsel memo discussing whether then-President Trump obstructed special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.

• Guffey v. Mauskopf: I like Short Circuit’s summary of Judge Justin R. Walker’s opinion: “Can the government forbid employees of the Administrative Office of the U.S. Courts from engaging in off-hours partisan activity in order to preserve the judiciary’s reputation for impartiality? D.C. Circuit (over a dissent): The only way for Administrative Office employees’ activities to affect the judiciary’s reputation would be if the public knew the Administrative Office existed in the first place, which is… contestable.”

• Nekrilov v. City of Jersey City: The Third Circuit, in an opinion by Chief Judge Michael Chagares, rejected a Takings Clause challenge to a Jersey City ordinance limiting the ability of property owners to operate short-term rentals (aka Airbnb). Check out Judge Stephanos Bibas’s concurrence, which I’d describe as “Newsome-esque”: it explains why the current state of regulatory-takings jurisprudence is “a mess” before reimagining it from the ground up, based on the original public meaning of the Takings Clause.

• Young v. Hawaii: Does Hawaii’s “may issue” permitting scheme for guns violate the Second Amendment? The Supreme Court remanded to the Ninth Circuit for reconsideration in light of New York State Rifle & Pistol Association, Inc. v. Bruen, and the Ninth Circuit remanded to the district court. Judge Diarmuid O’Scannlain dissented, arguing that no remand was needed; the Ninth Circuit’s marching orders are pretty clear post-Bruen.

• Cordero-Garcia v. Garland: More fun from the Ninth Circuit, in an immigration case featuring a barn burner of a dissent—the latest in what Howard Bashman of How Appealing wryly describes as Judge Lawrence VanDyke’s “continu[ing] campaign to win the Ninth Circuit‘s Mr. Congeniality award.”

Litigation of the Week: In re: Sealed Search Warrant.

Sticking with the Sunshine State, the drama surrounding the August search of Mar-a-Lago continues. Under U.S. Justice Department policy, the DOJ avoids taking investigative or prosecutorial steps that could be perceived as partisan within 90 days of an election—so don’t expect an indictment of Trump before midterms (if ever). But that policy doesn’t preclude the Department from opposing the efforts of numerous news organizations to unseal the affidavit supporting the Mar-a-Lago search warrant, as the DOJ is now doing.

The August 8 search of Mar-a-Lago is a legally and politically significant event that has generated massive public interest. It has raised many unanswered questions—questions that we likely won’t be able to answer unless we see not just the (already unsealed) search warrant but also the affidavit, which would shed light on why the government believed the search was justified.

I’m optimistic that Magistrate Judge Bruce Reinhart (S.D. Fla.), who approved the search warrant and will rule on the request to unseal the affidavit, will do the right thing. At a Thursday hearing, he declared that he’s leaning in favor of releasing the affidavit in redacted form, then gave the Department until this coming Thursday to suggest redactions.

I expect the DOJ to propose redacting the affidavit to within an inch of its life—and senior DOJ official Jay Bratt already said as much, telling Judge Reinhart that the Department’s redacted affidavit would contain “nothing of substance.” But my guess (and hope) is that Judge Reinhart, after considering the DOJ’s proposed redactions, will make public a version that properly balances the public’s right to know with the Department’s interest in the integrity of its investigation. (I would add that the investigation is likely in its final stages; a search warrant tends to come fairly late in the game, after most other investigatory steps have been completed.)

Runner-up for Litigation of the Week: the bench trial before Judge Florence Pan (D.D.C.) in the antitrust case brought by the DOJ to block the acquisition of Simon & Schuster, one of the so-called “Big Five” publishing houses, by Penguin Random House, the nation’s biggest book publisher. The trial offered us a fascinating inside look at the glamorous but often opaque world of publishing. Expect a decision sometime this fall.

Deal of the Week: Bed Bath & Beyond’s billion-dollar debt restructuring.

I love me some 20-percent-off coupons from Bed Bath & Beyond (NASDAQ: “BBBY”). Alas, it appears that not enough consumers share this love, which is why Bed Bath & Beyond is in danger of heading off to the Great Beyond.

Bed Bath & Beyond posted a massive first-quarter loss: $358 million. But some of its investors have made a killing, after BBBY became a so-called “meme stock,” a darling of retail investors who bid up the stocks of certain companies just for the hell of it—i.e., independent of their (often awful) financial fundamentals. For example, take Jake Freeman—a 20-year-old math major at the University of Southern California who just earned almost $110 million from trading BBBY.

Also about to earn money from Bed Bath & Beyond: Kirkland & Ellis, recently hired by BBBY to help restructure its more than $1 billion in debt. One of the nation’s top restructuring firms, K&E is very good at what it does—and charges accordingly. It might not make $110 million, but based on its publicly disclosed billings in past bankruptcy cases, expect a bill well into the eight figures.

Law Firm of the Week: Holland & Knight.

Let’s return once again to Florida, the headquarters and largest market for Holland & Knight. After the 2021 merger between Florida-founded Holland & Knight and Texas-founded Thompson & Knight—thanks to the “Knight” in both names, no name change was necessary—the firm boasts some 1,700 lawyers and $1.4 billion in revenue, good enough to make #30 in the Am Law 100.

Bigger firms face bigger issues, and that’s the case with H&K. In a wide-ranging interview with Justin Wise of Bloomberg Law, managing partner Steven Sonberg addressed the challenge the firm confronts in dealing with contentious social issues: “We try and stay basically out of the politics and really focus on our job as lawyers and representing clients. It’s more challenging today than it was maybe 10 years ago.”

A top issue facing the firm right now: abortion. After the Supreme Court’s decision in Dobbs, several Biglaw firms announced that they would cover costs for employees to travel out of state for abortions if necessary. But H&K is still mulling things over, setting up a committee to consider the issue.

So far, most firms to address the issue have come out in favor of covering abortion-related healthcare costs. But I’m guessing that at some point, a major Biglaw firm will refuse—and I wonder whether H&K, by setting up a committee, is trying to wait until passions cool before saying no. If it does, it will be interesting to see whether it experiences any fallout from either clients or potential recruits for its decision.

Lateral Move of the Week: King & Spalding hiring Randy Mastro away from Gibson Dunn.

Just two weeks ago, I named King & Spalding’s hiring of banking litigator Matthew Biben away from Gibson Dunn & Crutcher as Lateral Move of the Week. I try to mix things up in this category, so I usually wait a while before featuring a firm again. But the latest lateral hire by K&S, also out of GDC, is too prominent not to feature.

As reported by Jack Newsham of Business Insider, star litigator Randy Mastro is leaving Gibson to join the New York office of King & Spalding. Mastro was a fixture at GDC, where he spent almost his entire career since first joining the firm in 1989 (aside from a stint as deputy mayor under then-NYC Mayor Rudy Giuliani, from 1989 to 1993). Mastro led Gibson’s litigation practice for more than 20 years, and he served on the management committee and also the executive committee—from which he had to step down last year, after hitting age 65.

Why did Mastro leave? Talking to David Thomas of Reuters, Mastro cited Gibson’s mandatory retirement age for equity partners of 68—which he’s just two years away from, turning 66 this month. King & Spalding has no mandatory retirement age—which suits Mastro just fine, given his intent “to practice for a long, long time.”

Two other notable moves, both involving in-house lawyers with challenging bosses:

• David Searle stepped down as acting head of legal at Tesla, per Bloomberg—making him the mercurial Elon Musk’s fourth top lawyer since Tesla’s last full-time general counsel, Jonathan Chang, left in 2019. Bloomberg initially reported that Searle had left Tesla entirely, but updated its story after Tesla tweeted, “This Bloomberg article is false. David Searle has not left Tesla.”

• Andrew Weissmann, a former member of Team Mueller, departed last month from MacAndrews & Forbes, less than a year after Ron Perelman hired Weissmann to lead legal and corporate affairs at the private holding company.

That’s all for this installment of Judicial Notice. I’m now stepping away to celebrate my dad’s birthday (and eat some cake). I’d like to wish him a very happy birthday—and enjoyable weekends to all of you, as summer draws to a close.

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