Judicial Notice (12.02.23): Trailblazers

A billionaire lawyer and a judicial giant pass away, a Biglaw pay raise takes hold, and other legal news from the week that was.

Then-Judge Sandra Day O’Connor, at her 1981 confirmation hearing to serve on the U.S. Supreme Court (photo by David Hume Kennerly via Getty Images).

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Happy birthday to… Judicial Notice. Three years ago, I published the first installment of this weekly legal news roundup. I’m pleased to celebrate this anniversary with an announcement: thanks to ShareFile for becoming the first sponsor of Judicial Notice. I previously participated in a LinkedIn Live event they sponsored in September, The New Legal Paradigm: Challenges, Trends, and Strategies for Success, and after the success of that collaboration, we’re pleased to be working together again. (Please note that although ShareFile is sponsoring this edition of Judicial Notice, the views expressed herein are solely my own, as are any errors or omissions.)

As for my week, the highlight was heading down to Duke Law School to discuss free-speech issues in the legal profession with Professors Doriane Coleman and Ernie Young. I thoroughly enjoyed the discussion and my overall visit (despite the weather, surprisingly chilly for Durham). Now, on to the news.

Lawyer of the Week: Charlie Munger.

In the three years I’ve been writing Judicial Notice, I’ve recognized only a handful of Lawyers of the Week and Judges of the Week posthumously. This week, however, my selections in both categories are posthumous—and deservedly so.

On Tuesday, Charles T. Munger—longtime vice chairman of Berkshire Hathaway, Warren Buffett’s spectacularly successful investment company—passed away at 99. Although Munger, worth an estimated $2.6 billion, was overshadowed by Buffett, worth an estimated $120 billion, Munger was a fascinating figure in his own right, and his passing received extensive press coverage. (Of the various tributes and obituaries, I especially enjoyed Jason Zweig’s Wall Street Journal piece, Charlie Munger’s Life Was About Way More Than Money.)

Although Munger made his name (and his billions) in business, he had a short but distinguished career in the law, and he contributed to the legal profession throughout his long life. After serving in the Army during World War II, he matriculated at Harvard Law (despite never having obtained an undergraduate degree), graduating magna cum laude in 1948. He then moved to California, where his wife’s family was from, and began practicing at a firm known for its antitrust expertise, Wright & Garrett (a predecessor to the current Musick Peeler).

In 1962, Munger struck out on his own and founded what is known today as Munger, Tolles & Olson (MTO), an Am Law 200 firm with approximately 200 lawyers across offices in Los Angeles, San Francisco, and Washington, D.C. Although it’s not huge by Biglaw standards, MTO is a top firm in terms of prestige, selectivity, and the quality of its work—and Charlie Munger’s having founded such a powerhouse is by itself an ample legal legacy. As name partner Ron Olson stated, the world “has lost a giant, and our firm has lost one of its founders, a man whose name we proudly bear.”

Besides founding Munger Tolles, Charlie Munger contributed to the legal world in myriad other ways. He donated millions not just to Harvard Law but to two other schools he never even attended, Stanford Law and Michigan Law. Deeply interested in and appreciative of legal journalism, in 1977 he purchased a sleepy Los Angeles publication called the Daily Court Journal and grew it into the Daily Journal Corporation, a leading publisher of California legal news. As noted in his Daily Journal obituary, “Long after he stopped practicing law, Munger remained interested in the profession and was devoted to the idea that the U.S. legal system was a positive force that should not be taken for granted.”

In addition to Charlie Munger, the legal profession lost two other greats last month. Ronald Fischetti, one of New York’s top criminal-defense lawyers, passed away at 87. David Stoll, a leading trusts and estates lawyer who was a partner at Milbank, passed away at 57, after a long series of illnesses. May they rest in peace.

Judge of the Week: Justice Sandra Day O’Connor.

On Friday, the world lost a judicial giant. Justice Sandra Day O’Connor, the first woman to serve on the U.S. Supreme Court, passed away at 93, from complications of dementia. Appointed by President Ronald Reagan in 1981, she served on SCOTUS for almost 25 years before retiring in 2006.

The tireless Howard Bashman has been collecting coverage of Justice O’Connor’s passing at How Appealing. I commend to you the obituaries by Linda Greenhouse for the New York Times, Jess Bravin for the Wall Street Journal, and Nina Totenberg for NPR, as well as an assessment of her judicial legacy by Adam Liptak and a piece by Jesse Wegman about her post-SCOTUS work to defend judicial independence. Also check out this interesting video interview Justice O’Connor gave to the Times in 2008, with the understanding that it would be published only after her death.

What to make of Justice O’Connor’s jurisprudence? It was perfectly captured by the original headline given to Jeffrey Toobin’s thoughtful Times essay, “Sandra Day O’Connor Never Stopped Being a Politician” (now titled “Sandra Day O’Connor’s Other Legacy”). Before joining the Court, Justice O’Connor was the first woman in United States history to serve as a majority leader in a state legislature—in her case, the Arizona senate—and she took this political background to One First Street.

This was a virtue to some—like Ruth Marcus of the Washington Post, who wrote that Justice O’Connor “was a politician in the best sense of that word, using her experience as an Arizona state legislator both to craft consensus among her colleagues and to take the pulse of a nation whose buy-in, she understood, is essential to maintaining the court’s legitimacy.” To others, it was problematic—like Eric Segall, quoted in the Times obituary as saying that Justice O’Connor’s rulings, “taken as a whole, threatened rule-of-law values…. [H]er reluctance to articulate principles governing cases, as well as her inconsistent treatment of legal doctrine, failed to provide enough stability, predictability, or transparency to differentiate legal rules from personal preferences.” (Segall wrote these words back in 2006, and he now has a different—and less negative—assessment of the justice.)

Regardless of your views on her jurisprudence, there’s no disputing that Justice O’Connor was a committed public servant, a trailblazer for women in the law, and an indefatigable advocate for civic education. How many justices helped design video games to teach children about SCOTUS? In 2009, my then-colleague Kashmir Hill and I had the privilege and pleasure of interviewing Justice O'Connor about this side project, for the Washington Post—and we were struck by her energy, spunk, and real sense of fun. Justice O'Connor, rest in peace.

In nominations news, the Senate confirmed five district-court appointees: Minnesota Court of Appeals Judge Jeffrey Bryan (D. Minn.), Hawaii First Circuit Court Judge Shanlyn Park (D. Haw.), and three federal prosecutors, Margaret Garnett (S.D.N.Y.), Jamel Semper (D.N.J.), and Micah Smith (D. Haw.). The Senate Judiciary Committee (SJC) also approved five more nominees, including First Circuit nominee Seth Aframe, currently serving as an assistant U.S. attorney in New Hampshire.

In other SJC news, the Committee authorized subpoenas for conservative power broker Leonard Leo and Republican donor Harlan Crow, under scrutiny for their ties to Justices Clarence Thomas and Samuel Alito. The subpoenas generated intense anger from Republican members of the Committee, as well as outside observers—like conservative lawyer Mark Paoletta, who predicted that the subpoenas “will come back to haunt the Democrats”—who have their own friends and contacts to be subpoenaed the next time the SJC is in Republican hands.

Rulings of the Week: Blassingame v. Trump and United States v. Trump.

It wasn’t a good week for Donald Trump’s broad claims of immunity from suit. In Blassingame v. Trump, a unanimous panel of the D.C. Circuit held that civil lawsuits seeking to hold Trump liable for the January 6 attack on the Capitol can proceed, at least for now. Distinguishing between acts a president undertakes in his official versus personal capacities, Chief Judge Sri Srinivasan wrote that “President Trump has not [yet] demonstrated an entitlement to dismissal of the claims against him based on a President’s official-act immunity,” but as the case moves forward in the district court, he “will have the opportunity to show that his alleged actions in the run-up to and on January 6 were taken in his official capacity as President.”

Chief Judge Srinivasan’s opinion struck me as clear and logical, and its holding was joined by a second Democratic appointee, Judge Judith Rogers, and one of the D.C. Circuit’s more conservative members, Judge Gregory Katsas. Judge Rogers declined to join portions of the opinion giving guidance to the trial judge, Judge Amit Mehta, on how to proceed going forward, which she viewed as “premature and unenforceable dictum.” Judge Katsas joined the opinion in full but wrote a separate concurrence emphasizing that the inquiry into whether acts are official should focus on objective factors, not on “the President’s motive for the speech at issue” or “how political the speech appears on its face.” A former lawyer in the White House Counsel’s Office under Trump, Judge Katsas added that “[t]he President’s official duties are so pervasive that he may occasionally render official speech even during a typical campaign event.” So although the court rejected Trump’s broadest claim of immunity, hope is not (yet) lost for him in this case.

Also on Friday in D.C., but on the criminal side of the ledger, Judge Tanya Chutkan (D.D.C.) denied Trump’s motions to dismiss the federal election-interference case against him based on presidential immunity and various constitutional grounds. Rejecting Trump’s assertion of “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” as president, Judge Chutkan declared that “nothing in the Constitution’s text or allocation of government powers requires exempting former Presidents” from criminal justice. She also turned away claims that the indictment violates the First Amendment, double jeopardy, and due process.

Judge Chutkan’s rulings didn’t surprise Trump’s attorneys, but the legal sparring might still prove useful to the ex-president. A claim of immunity from prosecution is immediately appealable, and Trump can now seek review by the D.C. Circuit and ultimately the Supreme Court. Depending on how quickly they rule, the trial could get delayed until after the 2024 election—and Trump, if he returns to the White House, could order his attorney general to drop the case.

Three other rulings worth noting:

• United States v. Abbott. In an opinion by Judge Dana Douglas, President Biden’s one appointee to the Fifth Circuit, and over a dissent by Judge Don Willett, the panel ordered Gov. Greg Abbott (R-Tex.) to remove a controversial floating barrier in the Rio Grande aimed at blocking migrants from Mexico.

• In the Matter of the Application of Donald J. Trump. The First Department, the state appellate court with jurisdiction over New York Attorney General Tish James’s civil fraud case against Trump, reinstated the gag orders blocking the former president and his lawyers from attacking trial-court staff.

• Alario v. Knudsen. Judge Donald Molloy (D. Mont.) enjoined Montana’s statewide ban of TikTok from going into effect next year, holding that it “oversteps state power and infringes on the [First Amendment] rights of users and businesses.”

Litigation of the Week: Securities and Exchange Commission v. Jarkesy.

On Wednesday, the U.S. Supreme Court heard oral argument in Securities and Exchange Commission (SEC) v. Jarkesy. The case presents the constitutionality of the SEC using its own internal tribunals, rather than federal trial courts, to hear certain enforcement actions that can impose civil penalties for securities-law violations. As explained by Ron Mann at SCOTUSblog, the Fifth Circuit identified three constitutional problems, holding that (1) “the Seventh Amendment right to a jury trial does not tolerate the imposition of civil penalties in an SEC administrative proceeding”; (2) “Congress cannot properly delegate to the SEC the decision whether it should use administrative action, rather than a civil action in a court, to redress alleged misconduct”; and (3) “the statutory procedures for appointment of the SEC’s administrative law judges violate the Constitution’s appointments clause.”

Most of the two-hour-plus argument focused on the Seventh Amendment claim, and the Court’s three most conservative members—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—sounded sympathetic to it. The three liberals, led by an animated Justice Elena Kagan, appeared ready to uphold the administrative tribunals based on a 1977 precedent, Atlas Roofing Co. v. OSHA. As for Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, Ron Mann of SCOTUSblog wrote that they “seemed open to the possibility of accepting the statutory apparatus.” But they also asked questions evincing openness to Jarkesy’s view, as reported by Adam Liptak in the Times and Greg Stohr of Bloomberg Law, with Justice Kavanaugh saying that what the SEC offers “doesn’t seem like a neutral process.” It’s hard to say how the case will ultimately turn out.

What’s the significance of Jarkesy? It’s one of several cases this Term questioning the power of the administrative state, along with a challenge to the funding mechanism for the Consumer Financial Protection Bureau and a frontal assault on Chevron deference to administrative agencies. Observers on the left fear Jarkesy could have wide-ranging implications for agency power. Writing in Slate, Alan Morrison declared that if the Court affirms the Fifth Circuit, it would be “devastating” and “likely make adjudications by most federal agencies (and not just the SEC) a thing of the past.”

But observers on the right argued that Jarkesy could be narrowly decided, with limited applications outside the securities context. As Peggy Little of the right-of-center New Civil Liberties Alliance told Bloomberg Law, the justices seemed very focused at argument on the specific application of the Seventh Amendment in the securities-fraud context, suggesting that “the scope of the ruling could be pretty narrowly circumscribed” and “the thought that this is going to have some cataclysmic effect across agencies is overblown.” So stay tuned.

Deal of the Week: AbbVie’s $10.1 billion acquisition of ImmunoGen.

Healthcare and pharmaceutical transactions continue to buoy up the M&A market, thanks in part to companies in these sectors being flush with cash from Covid-19 vaccines and therapies. This trend continues with the latest Deal of the Week, AbbVie Inc.’s $10.1 billion purchase of cancer drug-maker ImmunoGen Inc. Congrats to the legal advisors: Wachtell Lipton for AbbVie, Ropes & Gray for ImmunoGen, and Fried Frank for Goldman Sachs and Lazard, ImmunoGen’s financial advisors.

But there are signs of life in other industries as well. Blackstone Inc., advised by Kirkland & Ellis, is paying $2.3 billion to acquire online pet-care marketplace Rover Group Inc., advised by Wilson Sonsini. The Adelson family—of the late casino magnate Sheldon Adelson, not the murderous dentist Charlie Adelson—is buying a majority stake in the Dallas Mavericks NBA franchise from Mark Cuban. And other possible deals are in the pipeline, with Occidental Petroleum considering an acquisition of Permian Basin energy producer CrownRock and Saks Fifth Avenue trying to buy Neiman Marcus (so far unsuccessfully, but now the luxury retailer is in play). Biglaw transactional lawyers have reason to be optimistic about 2024—which is a good thing considering the latest associate pay raise, to which we now turn.

Law Firm of the Week: Cravath Swaine & Moore.

Milbank announced a pay raise and year-end bonuses on November 7, and for three weeks… crickets. But after Cravath announced a pay raise and year-end bonuses on November 28, everyone hopped to it. The new Cravath salary scale runs from $225,000 for first-years to $420,000 for seventh-years, matching Milbank for junior associates but beating it for midlevel and senior associates by $15,000 to $20,000. As for 2023 annual bonuses, Cravath matched Milbank.

As of this writing, more than two dozen firms, a combination of Biglaw behemoths and leading boutiques, have basically followed Cravath. I say “basically” because there are some minor tweaks—for example, firms with longer partnership tracks specified a salary for eighth-years (generally $435,000), and some firms announced extra money for high billers or top performers. If you’re interested in the details, see Staci Zaretsky’s handy chart over at Above the Law.

Outside the compensation context, Foley & Lardner rescinded its job offer to 2023 Georgetown Law grad Jinan Chehade, based on statements about Israel and Palestine in her public social-media posts that Foley deemed “inconsistent with our core values.” In response, Chehade filed a discrimination charge with the Equal Employment Opportunity Commission, accusing Foley of retaliation and discrimination on the basis of her nationality and religion, and her lawyer Rima Kapitan said Chehade also plans to file a lawsuit in federal court in Chicago, where she would have started working for Foley. (And in a quick update to a similar story, Winston & Strawn’s rescission of its job offer to NYU Law Student Bar Association president Ryna Workman, Workman got ousted as SBA president after 60 percent of NYU law students voted for removal.)

Move of the Week: Joel Ferdinand and Michael Pierson leaving FisherBroyles to launch a new firm.

In the world of virtual aka distributed law firms, FisherBroyles is arguably #1. In 2021, it became the first distributed firm to crack the Am Law 200, the nation’s top 200 law firms ranked by revenue. The following year, it posted one of the largest revenue gains of any Am Law 200 firm. But it appears the trajectory of FisherBroyles has changed dramatically—and not for the better.

On Friday, Joel Ferdinand and Michael Pierson, former global managing partners of its litigation and corporate practices, respectively, announced their departures. And sources tell the American Lawyer that as many as 140 FisherBroyles lawyers could follow them to their new firm, expected to be called Pierson Ferdinand. Yikes.

Other noteworthy moves:

• To lead its public-company advisory practice, Goodwin Procter hired David Lynn, who joins from the D.C. office of Morrison & Foerster.

• Seeking to diversify beyond the leveraged-finance space it has historically dominated, Cahill Gordon brought aboard Frank Weigand, former general counsel at HSBC Securities (USA), to launch a new trading and markets practice.

Job of the Week: Pharma Patent Litigation Associate in Washington, D.C.

Lateral Link is supporting an Am Law 50 firm, recognized for its Chambers-ranked patent litigation team, that seeks a pivotal associate in Washington, D.C. This role is ideal for candidates with experience in Hatch-Waxman/ANDA litigation, although this is not a strict requirement. A bachelor’s degree in life sciences, chemistry, or biology is essential. The position offers significant trial involvement; a highly competitive salary and bonus package; the opportunity to work with a varied client base, from innovative startups to Fortune 100 companies; and ample client contact, enhancing prospects for future in-house roles. The firm is committed to filling this position before the end of the year and open to negotiating compensation to account for any pending year-end bonuses. For those seeking a career-defining move to a dynamic and forward-thinking legal environment, please send your resume to Lateral Link Managing Director Steven Rushing at srushing@laterallink.com.

And so we’ve come to the end of another edition of Judicial Notice. Given the dreary, rainy weather here in northern New Jersey, we may have no choice but to hit the mall. Thanks for your readership and support over the past three years, thanks to ShareFile for its sponsorship, and I’ll see you in the new week.

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