Judicial Notice (08.26.23): This Means War
Trump's latest celebrity lawyer, lawsuits against three top Biglaw firms, another Cravath partner departure, and other legal news from the week that was.
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Sigh. The last full week of August is in the rearview mirror, and we all know what that means: Labor Day, the unofficial end of summer, is around the corner. As someone who loves summer and its relaxed feel, I’m sorry to see it go. My husband Zach vigorously dissents; he’s happy to see summer leave us, and he hopes the door doesn’t hit it on its (disgustingly humid) way out.
If you, like me, are a devoted listener to Advisory Opinions, then you might have heard in the most recent episode that I will be filling in for Sarah Isgur, who will be taking a month of parental leave for the birth of her second son. I say “filling in” rather than “replacing” because Sarah is, as noted by her co-host David French, irreplaceable. I’m honored to be, as David put it, Austin Reaves to her LeBron (but unlike Reaves, I don’t make $14 million a year).
Now, on to the news.
Lawyer of the Week: Steven Sadow.
Although it is literally last week’s news, the Georgia criminal case brought by Fulton County District Attorney Fani Willis against former President Donald Trump dominated this week’s news as well. The media provided extensive coverage of Trump and his 18 co-defendants presenting themselves for booking at the Fulton County Sheriff’s Office in Atlanta, and Trump’s mugshot went viral. Regardless of your feelings about Trump, you must give him props for that arresting expression in his painterly mugshot.
Although it didn’t get as much coverage as his mugshot, Trump made a major change to his legal team: he replaced his lead lawyer, high-flying defense lawyer Drew Findling, with another top trial attorney, Steven H. Sadow. A Trumpworld source told CNN that Findling’s firing wasn’t because of his performance as a lawyer in the case. Trump’s other attorney, former prosecutor and veteran trial lawyer Jennifer Little, will stay on the team and work with Sadow as co-counsel.
Swapping Findling for Sadow struck me as curious, since it’s not like Trump replaced a courtroom brawler with a white-shoe Biglaw partner (or the other way around). Findling and Sadow have similar profiles: both are highly regarded, aggressive courtroom advocates, unafraid of going to trial on behalf of colorful clients, often from the music world. Findling, who refers to himself as the #BillionDollarLawyer on Instagram, has represented the likes of Cardi B, Gucci Mane, Migos, and the late Young Dolph (who gave him the “billion dollar lawyer” nickname). Similarly, Sadow boasts a client roster that includes luminaries like Usher, T.I., and Rick Ross.
It’s true that the politically liberal Findling criticized Trump before having him as a client, at one point calling him “the racist architect of fraudulent Trump University.” But presumably Trump was aware of this before hiring Findling, since the first step in Trumpworld vetting is seeing whether the candidate has ever spoken negatively of the Donald (which explains why many prominent right-of-center lawyers never got to serve in the Trump Administration). And, interestingly enough, Sadow is also left-of-center and a former Trump critic. As noted by Law360, he successfully litigated against Georgia’s anti-sodomy law in 1998, and after last year’s Dobbs decision, he offered pro bono representation to doctors prosecuted for performing abortions. As for his Trump comments, back in 2017 he described himself as “not a DT supporter.”
One possible reason for the switch: Steve Sadow has extensive experience with RICO, the federal anti-racketeering statute, and its Georgia state-law counterpart. One of Sadow’s most high-profile RICO cases involved the Gold Club, a now-defunct strip club where celebrities received sexual favors. Perhaps that resonated with Trump, whose views on what “a star” can get away with are notorious.
Carol Robles-Román—a Latina lawyer in New York who, in the words of Justice Sonia Sotomayor, “devoted herself to public service and made a noteworthy difference both in the lives of Latinos and all New Yorkers”—passed away at 60, from lung cancer.
Justin Peacock—a Yale Law grad and lawyer who wrote an acclaimed novel before transitioning into television writing—passed away at 52, from atherosclerotic cardiovascular disease.
May they rest in peace.
Judge of the Week: Judge Steve Jones.
The last Judge of the Week, Fulton County Superior Court Judge Scott McAfee, was the subject of much media coverage, since DA Fani Willis’s prosecution of Donald Trump was sent to his courtroom. But will Judge McAfee actually end up presiding over the trial—or more likely trials, plural—in this matter?
Of the 19 defendants, five have already requested removal of their cases to federal court under 28 U.S.C. § 1442, the federal officer removal statute—and many expect Donald Trump to seek removal as well. Federal court offers at least two advantages for Trump: (1) a better jury pool, since the jury pool for the Northern District of Georgia, which spans 10 politically diverse counties, is more Trump-friendly than Fulton County, a Democratic bastion; and (2) no cameras in the courtroom.
Who will rule on removal—and, if the cases are removed, preside over the trials? That would be Judge Steve Jones (N.D. Ga.), to whom the case was assigned when former White House chief of staff Mark Meadows filed the first notice of removal. A graduate of the University of Georgia School of Law and former assistant district attorney, Jones served in the Georgia state-court system as a municipal and then Superior Court judge. In 2010, after being recommended by the Democratic members of the Georgia House delegation, Jones was appointed to the federal bench by President Barack Obama.
Mark Meadows and a second defendant seeking removal, former Justice Department official Jeffrey Clark, asked Judge Jones to stay the state-court criminal proceedings against them—and to block Willis from having them arrested by her Friday deadline. Judge Jones denied both requests, explaining that removal requests do not stop state-court proceedings from moving forward; instead, the state proceedings go ahead until federal removal is granted. And while it’s hard to read too much into a pair of succinct, straightforward, six-page rulings, it seems fair to say that Judge Jones is no Judge Aileen Cannon (S.D. Fla.)—i.e., he won’t go out of his way to make rulings favorable to Trump and his allies.
On Monday, Judge Jones will hold an evidentiary hearing on the removal request of Mark Meadows, the first defendant to file. If Judge Jones approves removal, whether for Meadows or one of his co-defendants, what happens next is uncertain. Per the New York Times, whether granting one defendant’s removal request moves the other 18 defendants into federal court is unsettled. And when you toss in a host of other complexities—including requests from some defendants for speedy trials, plus a likely request from Trump for delay—the whole thing looks like a giant mess.
There’s a lot of uncertainty here, but here’s one prediction: if Judge Jones makes rulings that Donald Trump doesn’t like, don’t be surprised if Trump complains that Judge Jones is an “Obama judge” and “racist.” Judge Jones is Black, and Trump has previously branded as “racist” various non-white lawyers and judges who have crossed him, including Fulton County DA Fani Willis and Manhattan DA Alvin Bragg.
That was depressing, wasn’t it? If you’re looking for something cheerful, I refer you to this fun Law360 essay by Judge Jennifer Elrod (5th Cir.), which uses the television show Jury Duty as the jumping-off point for thoughtful, inspiring reflections on the jury as an institution. Regardless of your own feelings about Trump, we can all draw comfort from the fact that the cases against him will most likely be decided by juries.
Ruling of the Week: Bailey v. Iles.
As my regular readers know, I have a keen interest in the intersection of the First Amendment and social media. So of course I can’t help highlighting this interesting new opinion from the Fifth Circuit, Bailey v. Iles (via Professor Eugene Volokh, who filed an amicus brief in support of Bailey).
In March 2020, the first month of the Covid-19 pandemic, a Louisiana man named Waylon Bailey posted this on Facebook (all caps in the original): “SHARE SHARE SHARE!!! JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONLFICT WITH ‘THE INFECTED’ SHOOT ON SIGHT…. Lord have mercy on us all. #Covid9teen #weneedyoubradpitt”
As explained in the opinion by Judge Dana Douglas, the post was a joke. Specifically, it was a zombie joke—and the hashtag “#weneedyoubradpitt,” a reference to the zombie movie World War Z, was intended to highlight that fact. But the police didn’t find it funny, and before he knew it, Bailey was accosted while working in his garage by around a dozen officers with bulletproof vests and drawn weapons. While he was being handcuffed, one of the deputies allegedly told Bailey, “Next thing [you] put on Facebook should be not to f**k with the police.”
Bailey was arrested for “terrorizing” under Louisiana state law, but the district attorney ultimately didn’t pursue charges. Bailey then filed a § 1983 lawsuit, claiming violations of his First and Fourth Amendment rights. He lost before the district court, but the Fifth Circuit reversed.
The court first held that Bailey’s Facebook post was constitutionally protected speech, since it came nowhere near the high standard set by Brandenburg v. Ohio for “incitement” not protected by the First Amendment. Nor did it constitute an unprotected “true threat,” since it “lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt.” Judge Douglas compared Bailey’s post, which didn’t threaten anyone on its face, with United States v Perez, in which the Fifth Circuit held “that Facebook posts made in April 2020 in which the speaker falsely claimed that he had paid a person infected with COVID-19 to lick everything in two specific grocery stores in San Antonio was a true threat.” Ultimately, the Fifth Circuit concluded that there was no probable cause to arrest Bailey for “terrorizing,” it was “objectively unreasonable” to believe that there was a basis for arrest, and the police officers were not entitled to qualified immunity.
I like this opinion for two reasons. First, it reminded me a lot of Nowak v. City of Parma, another “free speech meets social media” case—which went viral, after The Onion filed an epic Supreme Court amicus brief. In Nowak, the Ohio man who parodied his local police department wound up losing, on qualified-immunity grounds. This time around, the First Amendment came back from the dead and—like a zombie—exacted its revenge on overzealous, humorless police officers. Second, I like that the opinion was written by Judge Douglas, President Biden’s first (and so far only) appointment to the Fifth Circuit, joined by Judge James Graves Jr., an Obama appointee, and Judge Patrick Higginbotham, a Reagan appointee. Free speech is not a “conservative” value, but one that transcends ideological divides.
Turning to other interesting opinions, “Circuit Split Alert!” (to quote my friends at Short Circuit):
Horn v. Medical Marijuana, Inc. In this opinion by Judge Gerard Lynch, the Second Circuit held that plaintiffs aren’t barred from suing under RICO “simply because their otherwise recoverable economic losses happen to have been connected to or flowed from a non-recoverable personal injury.” There’s now a split on this issue involving the Second, Sixth, Seventh, Ninth, and Eleventh Circuits—and the Sixth and Ninth Circuit rulings were by divided en-banc courts. Expect this to hit SCOTUS before too long.
In re Bard IVC Filters Products Liability Litigation. This opinion by Judge Bridget Bade addresses a technical but important issue (at least for lawyers in multidistrict litigations, some of the most complicated and high-dollar cases around): when can a district court “order common benefit fund holdback assessments from claimants’ recoveries in non-MDL cases”? If you don’t understand that, neither do I; if you do, you’re welcome. According to Howard Bashman of How Appealing, who argued the case for the losing side, “the Ninth Circuit’s ruling seems to further aggravate an existing circuit split, so perhaps the next step will be for my clients to seek U.S. Supreme Court review.” Game on.
In continuing culture-war controversies, conservatives had a mostly winning week:
In Eknes-Tucker v. Governor of the State of Alabama, the Eleventh Circuit gave the green light to enforcement of Alabama’s ban on hormone treatments and puberty blockers for transgender minors. Judge Barbara Lagoa, a Trump SCOTUS shortlister back in 2020, wrote for a unanimous panel. And in Missouri, Circuit Court Judge Steven Ohmer denied a preliminary injunction to plaintiffs seeking to block a law restricting gender-related medical treatments for minors.
But in their war against the administrative state, conservatives suffered a setback. In Allstates Refractory Contractors v. Su, the Sixth Circuit, in an opinion by Judge Richard Griffin, rejected a nondelegation challenge to Congress’s delegation to the Occupational Safety and Health Administration (OSHA) of the power to set “reasonably necessary or appropriate” workplace-safety standards. Consistent with other circuits, the majority held that Congress giving this authority to OSHA “comfortably falls within the ambit of delegations previously upheld by the Supreme Court.” But in a spirited dissent, Judge John Nalbandian provided a roadmap to the conservatives on the Supreme Court if they want to finally give the nondelegation doctrine some teeth—a longtime goal of many legal conservatives, since it would trim the sails of the administrative state. I agree with Chris Geidner that this case is a decent candidate for en banc review by the Sixth Circuit or, ultimately, SCOTUS.
Litigation of the Week: American Alliance for Equal Rights v. Morrison & Foerster and Perkins Coie.
On Tuesday, the American Alliance for Equal Rights (AAFER)—an organization led by Edward Blum, the affirmative-action opponent who successfully challenged Harvard’s and UNC’s use of racial preferences in admissions—sued two top law firms, Morrison & Foerster and Perkins Coie. And as you can see in the two short complaints—12 pages for Perkins Coie, 11 pages for MoFo—the legal theory is quite simple.
Both firms have “diversity fellowships” that are explicitly available only to students from particular groups. MoFo’s fellowships are reserved for “African American/Black, Latinx, Native Americans/Native Alaskans, and/or members of the LGBTQ+ community,” while Perkins’s are awarded only to “students of color,” “students who identify as LGBTQ+,” or “students with disabilities.” As stated in its press release, AAFER claims that these policies violate the Civil Rights Act of 1866, 42 U.S.C. § 1981, a post-Civil-War statute prohibiting racial discrimination in the making and enforcing of contracts. The Alliance’s lawsuits seek a declaration that the programs violate § 1981, as well as injunctive relief ordering the firms to either end the fellowship programs or revise them to operate in race-neutral ways.
MoFo and Perkins Coie are both super-progressive, even by the standards of left-leaning Biglaw, so perhaps they’ll try to defend their express preferences for certain racial or ethnic groups. But they could face an uphill battle. As Professor Stacy Hawkins told the Washington Post, “What employers are doing now is really not affirmative action. Quite frankly, the most risky thing an employer can do is make any employment decision explicitly on the basis of race or gender.”
The key word here: “explicitly.” What I expect many employers to do in the wake of SFFA v. Harvard, assuming they’re not doing it already, is to have facially neutral hiring criteria, but quietly assign a “plus” for membership in certain groups. Would this still be illegal? Absolutely (and given my own views on racial preferences, I don’t condone it). But proving such discrimination would be much harder. In the case of Biglaw fellowship programs, for example, it would be hard to file a successful follow-up lawsuit if firms adopt facially neutral criteria, don’t publicly announce the names of fellowship recipients, and hire the occasional cisgender, straight white male (but an “ally,” i.e., one with a demonstrated commitment to diversity, equity, and inclusion).
Beyond Biglaw, the AAFER lawsuits raise a larger question: what is the future of affirmative action after the landmark rulings in the Harvard and UNC cases? For one sign of where things are going, keep an eye on the certiorari petition just filed by the Pacific Legal Foundation in Coalition for TJ v. Fairfax County School Board. This challenge to the overhauled admissions process at the Thomas Jefferson High School for Science and Technology, an elite magnet school in northern Virginia, raises the following question: is it legal to pursue “racial balancing” or some similarly race-based goal (like reducing the number of Asian-American students), as long as you use facially race-neutral criteria (like taking family income into account)? Whether and how the Supreme Court answers this question will have profound implications for how whether and how educational institutions comply with the Harvard and UNC decisions.
In an update to a litigation mentioned last week that drew great interest, former Scalia Law professor and FTC commissioner Joshua Wright, who stands accused by multiple women of various forms of sexual misconduct, is suing two of his accusers for defamation (among other claims). Professor Wright admits that he had sexual relationships with the defendants when he was a law professor and they were students, but claims that they were “consenting adults.” In his complaint, he quotes from purported text messages that he claims reflect their consent. In an interview with Professor Irina Manta for Strangers on the Internet, another one of Wright’s accusers, Brandy Wagstaff, responded to the lawsuit—and argued that given the power differential between Professor Wright and his students, it’s not so easy to cry “consent” and be done with it.
Deal of the Week: Roark Capital’s $9.6 billion acquisition of Subway.
Does anyone actually like Subway? They claim to make their sandwiches with love, but some meat would actually be nice. So I’m no Subway fan—but apparently others are, which is how the world’s largest purveyor of farting bread managed to sell itself for $9.6 billion (an impressive sum, although less than the $10 billion that Subway’s founding families sought when they started seeking a sale back in February).
The buyer is Roark Capital, an Atlanta-based private-equity group with extensive investments in fast “food.” Roark hopes to create synergy by merging Subway with two of its other portfolio brands, Auntie Anne’s and Cinnabon, and having the awful aromas neutralize each other.
If you, like me, get a kick when lowbrow brands hire highbrow law firms, then you’ll be amused to see that Subway was represented by Sullivan & Cromwell, with the S&C team led by two top deal lawyers, Frank Aquila and Melissa Sawyer. Meanwhile, Roark turned to the august team of Jeffrey Marell and Sarah Stasny at Paul, Weiss, now a major player in the world of big-ticket M&A. Hopefully the commemorative “deal toys” won’t be shaped like “footlong” subs that are only 11 inches in length.
Law Firm of the Week: Gibson Dunn & Crutcher.
Gibson Dunn & Crutcher was in the news quite a bit over the past few days, for reasons good and bad. Let’s get the bad news out of the way first: Romero Cabral da Costa Neto, a Brazilian lawyer who was spending a year at GDC as a visiting attorney, has been accused of insider trading, in both criminal and civil cases. The U.S. Attorney’s Office for D.C. and the Securities and Exchange Commission allege that he earned more than $50,000 from trading on non-public information involving three Gibson clients. Prosecutors claim that he wasn’t working on any of the deals in question and instead improperly viewed files about the transaction—which raises the issue of what law firms can do to protect such information from internal snooping.
In happier news for Gibson Dunn, it scored a big win in the Ninth Circuit for its client, United Behavioral Health (UBH), in Wit v. UBH—which some have called “the most important ERISA case of the century.” Okay, “some” is actually “the plaintiffs”—but the plaintiffs’ law firms, Zuckerman Spaeder and Stris & Maher, do a lot of healthcare and ERISA litigation, so presumably they don’t say that lightly.
This long-running legal battle went to trial in 2017, and this latest decision is actually the Ninth Circuit’s third ruling in the case; the first two were withdrawn after requests from rehearing from the plaintiffs. It’s a complex opinion that I won’t endeavor to summarize—forget it, Jake, it’s ERISA—but if you want to go into the weeds, read this detailed analysis by Miller & Chevalier, which characterizes it as “largely a win for United Behavioral Health.” Congratulations to acclaimed appellate advocate Miguel Estrada, the longtime GDC partner who argued the case, and his co-counsel at Crowell & Moring. Successes like these are why Gibson Dunn, founded in 1890 in Los Angeles, was just honored as a “California Powerhouse” by Law360.
Also in the news: Kirkland & Ellis. A former K&E associate, IP litigator Zoya Kovalenko, is suing the firm for sex discrimination. And even though she’s proceeding pro se—and up against an Orrick team lead by Lynne Hermle, arguably the nation’s #1 defense-side employment lawyer—Kovalenko made it past the motion-to-dismiss stage. So keep an eye on this “David versus Goliath” case.
Move of the Week: Latham & Watkins hiring Andrew Elken from Cravath.
Partner departures continue at Cravath Swaine & Moore—a storied firm where, for many years, partners didn’t exit except in coffins. The latest to leave is Andrew Elken, a relatively young partner and rising star in M&A, who headed over to Latham & Watkins. Firms that have snatched talent from Cravath in the past few years include Davis Polk, Paul Weiss, and Freshfields, per Bloomberg Law and Reuters. Cravath has made some recent changes in an effort to retain partners—including, most famously, ditching a pure-lockstep compensation system for partners—but whether they can stop the bleeding remains to be seen.
Speaking of another elite firm that has been shedding partners (at an even faster clip than Cravath), Cahill Gordon lost a leading white-collar litigator, former S.D.N.Y. prosecutor Nola Heller, to Milbank. She’s at least the fourth partner to depart from Cahill this year, as well as the second white-collar practitioner. Brad Bondi, who served as co-head of Cahill’s white-collar group, left for Paul Hastings in April.
Outside of Biglaw, we have news of an important government hire. Last week I noted Stuart Delery’s departure as White House counsel, and we already know his successor: Edward “Ed” Siskel. A Chicago Law graduate and former law clerk to Justice John Paul Stevens, Siskel is returning in September to the White House, where he served as deputy counsel to President Barack Obama.
And in academia, my fellow free-speech devotees might be happy to see that Jenny Martinez, the Stanford Law School dean who won praise for her handling of last spring’s disruptive protest of Judge Kyle Duncan (5th Cir.), just got a promotion: she has been named Stanford’s next provost, making her the university’s second highest-ranking official after the president. Law school deans who aspire to serve as university presidents, which is many of them, should note that taking a firm stance in defense of free speech can bring career rewards. And deans should also note recent comments by the new president of the American Bar Association (ABA), Mary Smith, who said that a law school’s commitment to protecting free expression and prohibiting disruptive conduct could become a factor in ABA accreditation.
Job of the Week: Healthcare Litigation Partner Role in Chicago.
Lateral Link is excited to partner with a distinguished Am Law 50 firm in Chicago that is expanding its healthcare litigation group. The firm stands out for both its impressive client engagements and its inclusive, collaborative culture. Many attorneys at the firm have been there for years, underscoring its positive environment. If you’re a seasoned False Claims Act (FCA) defense litigator with a superb reputation and robust client base, reach out to Lateral Link Principals Zain Atassi (firstname.lastname@example.org) and Lauren Smith (email@example.com), who are leading this search.
After securing grandparental and babysitting help for our two sons, Zach and I were out late last night. We returned to Manhattan, our former stomping grounds, for the joint 40th birthday celebration of two friends. After getting home, I stayed up for several more hours working on the newsletter you’ve now finished reading. So your plans for today are probably more exciting than mine, which involve a nice long nap. Enjoy what remains of the weekend, and I wish you a good start to the week ahead.
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