Judicial Notice: April 10, 2021

Notable legal news from the week that was.

The Lil Nas X Satan Shoes (by MSCHF). Note the Nike swoosh. If you were the judge, would you find trademark infringement or dilution?

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can register to receive updates on this signup page.

This past week was a good one for me. It started off well, with Original Jurisdiction getting a great shout-out from media columnist Ben Smith of the New York Times on Monday, and it ended well, with a smooth closing for my husband and me on our new house on Friday.

I’ve also been very busy with writing. Since last week’s installment of Judicial Notice, I’ve written no fewer than four stories for these pages:

I put an immense amount of work into Original Jurisdiction — I spent pretty much all of today researching and writing what you’re now reading, for example — which brings me to an announcement. When I first launched this publication last December, I mentioned that I’d eventually start charging a small subscription fee for certain content, as many if not most writers on Substack do. I’ve now settled on a date for implementing that change: Monday, May 3.

More details — including information about the additional features and content available for paying subscribers — will follow. I very much hope that you can and will support Original Jurisdiction, just as more than 500,000 paying subscribers support thousands of different writers on Substack.

Now, on to the news.

Lawyers of the Week: the 36 members of the new Presidential Commission on the Supreme Court of the United States.

I acknowledge the corrosive effect that elitism has upon the legal profession, but I’m still a sucker for a superb CV. So for Lawyers of the Week, I’m selecting the 36 members of the new Presidential Commission on the Supreme Court of the United States, announced on Friday by the White House. The purpose of the Commission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

The Commission has garnered copious coverage in the media, which Howard Bashman of How Appealing has helpfully collected. Here are a few different takes:

  • Josh Blackman (“a well-balanced commission with no actual mandate”);

So there’s no consensus on what, exactly, this Commission is supposed to do, or whether it’s a good or bad thing. But when everyone who’s anyone in the legal world is talking about you, that makes you Lawyer of the Week.

And who are the Commission’s members? It’s an elite group, consisting largely of leading legal scholars. As noted by Kimberly Robinson of Bloomberg Law, around 80 percent of the members are graduates or otherwise affiliated with just two top law schools, Harvard and Yale. The Commission is being led by two distinguished co-chairs — Bob Bauer, former White House Counsel in the Obama Administration, and Cristina Rodríguez, a professor at Yale Law School and former Justice Department official — and the other 34 members are legal luminaries as well. Check out the full lineup on the White House website.

Runners-up for Lawyer of the Week:

Hastings passed away on Tuesday at the age of 84. May he rest in peace.

Judge of the Week: Judge Patrick Bumatay.

Judge Patrick Bumatay of the Ninth Circuit, a runner-up for JOTW back in March, takes the crown this week. Last night, he was vindicated by the Supreme Court in Tandon v. Newsom, in which the Court, by a vote of 5-4, lifted California’s restrictions on religious gatherings in private homes. When Tandon was before the Ninth Circuit, Judge Bumatay dissented, arguing that the restrictions were unconstitutional.

I previously noted that Judge Bumatay has a way with words. And Adam Liptak of the New York Times seems to share my view, considering how extensively he quoted from Judge Bumatay’s dissent in writing up the SCOTUS ruling:

In dissent, Judge Patrick J. Bumatay wrote that the state was not free to impose harsher restrictions on religious study than on “barbershops, tattoo and nail parlors, and other personal care businesses.”

“The one thing California cannot do is privilege tattoo parlors over Bible studies when loosening household limitations,” he wrote.

“The Constitution shields churches, synagogues and mosques not because of their magnificent architecture or superlative acoustics, but because they are a sanctuary for religious observers to practice their faith,” Judge Bumatay wrote. “And that religious practice is worthy of protection no matter where it happens.”

Whether or not you agree with Judge Bumatay — and reasonable minds can differ on where to strike the balance between free exercise and public-health measures during the pandemic — you can’t deny that he writes with clarity, vigor, and flair.

Ruling of the Week: Gil v. Winn-Dixie Stores, Inc.

Yes, I’m aware of Google v. Oracle. A multibillion-dollar copyright case pitting two tech giants against one another doesn’t come along every day — and Google actually touted it as “the copyright case of the decade.” But the resolution turned out to be… kinda lame. The key issue was whether and when software code is copyrightable — “but the big issue got punted,” as Steve Vladeck wrote on Twitter, since SCOTUS assumed the code here was copyrightable and decided the case on other grounds. (I’ll leave the discussion at that; for more, check out the excellent Advisory Opinions podcast, featuring David French and Sarah Isgur.)

If I picked Ruling of the Week based on sheer length, the clear winner would be Brackeen v. Haaland. Over 325 pages of opinions, the Fifth Circuit, sitting en banc, considered the constitutionality of the Indian Child Welfare Act. What did the court decide? It’s… complicated. As noted by Howard Bashman, “The decision begins with a five-page per curiam scorecard because the judges’ opinions that follow thereafter may be too complex to readily decipher the en banc court’s actual holdings.” Yikes.

For Ruling of the Week, I’m selecting Gil v. Winn-Dixie Stores, which has just the right combination of importance and interestingness (yes, that’s a word). In a 2-1 decision, the Eleventh Circuit held that a supermarket chain can’t be held liable under Title III of the Americans with Disabilities Act (ADA) for having a website that’s inaccessible to customers with visual disabilities who rely upon screen-reading software. From Judge Elizabeth Branch’s very cogent and thorough opinion:

The statutory language in Title III of the ADA defining “public accommodation” is unambiguous and clear. It describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA. Therefore, Gil’s inability to access and communicate with the website itself is not a violation of Title III.

Judge Jill Pryor, in a very cogent and thorough dissent, stressed the breadth of the ADA and argued that in a day and age when websites and apps are more important than ever, the majority’s holding “cannot be squared with the ADA.”

This is a tough case about an important issue for millions of Americans. Both Judge Branch and Judge Pryor have written persuasive opinions, and they aren’t the first judges to disagree on these questions: there’s now a six-circuit split on this issue.

Lawyers for Juan Carlos Gil, the plaintiff in this case, told Law360 that “the 11th Circuit’s landmark decision effectively closes the internet’s doors to the blind” — and they might seek Supreme Court review. In light of the circuit split and the significance of the question presented, as well as the proliferation of similar lawsuits across the country, I bet SCOTUS will take the case if certiorari is sought.

Speaking of the Court, here are two other interesting things from the past week:

  • Justice Clarence Thomas’s concurrence in Biden v. Knight First Amendment Institute, a case about the (now moot) question of whether former president Donald Trump violated the First Amendment by blocking users on Twitter. As George Will sums it up, Justice Thomas “warned his eight colleagues that they have a coming rendezvous with a boiling controversy that implicates constitutional guarantees” — specifically, the power of Big Tech and how to regulate it.

  • The Court’s denial of a request by the Office of the Solicitor General to present argument in an upcoming case, for the second time in under a year. As Kimberly Robinson of Bloomberg notes, this has rarely happened over the past two decades, so it’s a bit of a snub.

Litigation of the Week: Nike, Inc. v. MSCHF Product Studio, Inc.

Perhaps this should have been Litigation of the Week for the prior week, since that’s when it was filed. But I feel free to discuss it since it was settled on Thursday — which is too bad, because it would have been fun and interesting to follow.

Lil Nas X is a 22-year-old (as of yesterday — happy birthday!) rapper and media personality. He recently released a new single and music video, Montero (Call Me By Your Name), in which he descends into Hell and… gives the devil a lap dance.

Yes, seriously — watch for yourself (and if you’re Catholic like me, go to confession afterwards).

To promote the release of this song and video, Lil Nas X collaborated with MSCHF, a Brooklyn-based design firm, to release so-called “Satan Shoes” — souped-up, satanic-themed Nike Air Max 97 shoes, each containing a drop of human blood, and offered for $1,018 a pair (the price an homage to Luke 10:18). The limited edition — of 666 pairs, natch — sold out in less than a minute.

This stunt didn’t sit well with Nike, which was besieged with complaints and boycott threats from consumers accusing the shoe company of being in bed with Satan. So Nike, represented by Arnold & Porter Kaye Scholer, filed a trademark lawsuit against MSCHF, alleging trademark infringement, dilution, and unfair competition.

MSCHF, represented by Debevoise & Plimpton, argued that the shoes were works of art protected by the First Amendment. But Nike won the first legal skirmish, with Judge Eric Komitee (E.D.N.Y.) issuing a temporary restraining order barring MSCHF from selling the Satan Shoes (or whatever pairs of them that hadn’t shipped).

On Thursday, the parties settled, with MSCHF agreeing to conduct a “voluntary recall” in which it would take back any pairs of the Satan Shoes and offer full refunds in exchange. But in light of how the controversy has surely driven up the value of these sneakers, I suspect most buyers will tell MSCHF to go to hell.

Deal of the Week: Andrade Gutierrez’s $820 million debt restructuring.

M&A is back — big time. In the first quarter of 2021, global M&A activity totaled $1.1 trillion, a whopping 53 percent increase over the same period last year. Four firms topped the league tables, advising on more than $100 billion of deals each: Wachtell Lipton ($110.4 billion), Kirkland & Ellis ($103.8 billion), Cravath Swaine & Moore ($103.3 billion), and Skadden Arps ($102.3 billion).

But for Deal of the Week, I’m going in a different direction. Instead of picking yet another M&A transaction (and yet another SPAC deal), I’m going with a debt restructuring. Just as M&A tends to dominate our discussion of transactional practice, equities tend to dominate our discussion of capital markets. When we talk about “the market,” we’re almost always talking about the stock market. But bonds and other debt instruments are also incredibly important, so let’s give them some love this week.

Andrade Gutierrez SA, the second-largest construction company in Brazil, is a giant business with billions of dollars in revenue. Alas, it appears that its pandemic-battered revenue isn’t sufficient to service its massive debt — which is why it has hired Davis Polk & Wardwell to help fix the situation.

The company has more than $820 million in debt — $480 million in international bonds, plus another $330 million in local bonds — so the situation is a bit of a mess. But if anyone can fix it, Davis Polk can, given its expertise in both capital-markets work and Latin and South America practice. Good luck, DPW.

Runner-up (because seriously, you can read about Kim Kardashian West in so many other outlets besides Original Jurisdiction): the latest round of funding for Skims, the shapewear brand launched by Kardashian in 2019. This $154 million raise values the company at $1.6 billion, making the reality TV star turned entrepreneur officially a billionaire (just like her soon-to-be ex-husband Kanye West, who’s worth $1.8 billion).

Law Firms of the Week: Holland & Knight and Thompson & Knight.

It has been a while since we’ve seen a big-ticket Biglaw merger, so I was excited to learn on Friday about the merger talks between Holland & Knight and Thompson & Knight. If all goes well, the deal will close in the next 90 days, creating a law firm with 1,600 lawyers across 30 offices.

Despite their similar names, they’re very different firms, at least by the numbers. As noted by the American Lawyer, Thompson & Knight, with 252 lawyers and 2020 revenue of $195 million, is much smaller than Holland & Knight, with 1,159 lawyers and 2020 revenue of $1 billion.

Given the size differential, the “merger” really amounts to Holland & Knight absorbing Thompson & Knight, so I’m sure the new firm will simply be called “Holland & Knight.” But at least Thompson & Knight can claim, “Hey, the ‘& Knight’ in ‘Holland & Knight’ comes from us!”

Although they diverge greatly in terms of size, the firms claim similar cultures, including strong commitments to excellent client service and diversity. The merger will give Thompson & Knight greater scale and stability (in the wake of some recent partner departures), and it will give Holland & Knight a greater presence in the oil and gas space and in Texas, the home state of Dallas-based Thompson & Knight.

Congratulations to the Knights, and best of luck to them in finalizing their combination.

Lateral Move of the Week: D. Casey Flaherty joining LexFusion.

Last week brought lots of interesting movement within Biglaw and leading legal departments, including former government folks finding jobs in the private sector:

  • Robert Hur, the former U.S. Attorney for Maryland, joined Gibson Dunn & Crutcher, in Washington, D.C.;

  • David Burns and Kyle Hawkins, former Acting Assistant Attorney General of the Criminal Division and former Texas Solicitor General, rejoined Gibson Dunn, in D.C. and Houston, respectively;

  • Arjun Garg, former chief counsel of the Federal Aviation Administration, joined Hogan Lovells, in D.C.;

  • Greg Jacob, former chief counsel to former vice president Mike Pence, returned to O’Melveny & Myers, in D.C.;

  • Sonia Nath, former senior counsel in the Food and Drug Administration chief counsel’s office, joined Cooley, in D.C.;

  • Thomas M. Johnson, former general counsel of the Federal Communications Commission, joined Wiley, where he will co-chair the appellate practice;

  • Nathaniel Smith left the U.S. Attorney’s Office for the Eastern District of Virginia, where he served as an assistant U.S. attorney for more than four years, and joined Tesla, where he’ll be Managing Counsel for Litigation; and

  • Jones Day picked up its usual slew of Supreme Court clerks — this time around, nine of them.

But the legal world includes much more than Biglaw firms and in-house legal departments. The latest Lateral Move of the Week involves a high-profile move in the vibrant field of legal technology aka legal tech.

As reported by Bob Ambrogi over at LawSites, D. Casey Flaherty just left Baker McKenzie, where he served for the past two years as director of legal project management, to join LexFusion, a go-to-market collective of legal technology companies launched last October by Joe Borstein and Paul Stroka. Flaherty will serve as chief strategy officer, working closely with Borstein, LexFusion’s CEO, and Stroka, the company’s chief customer officer. Here’s how Ambrogi describes LexFusion:

[LexFusion seeks] to change the paradigm for how legal departments and law firms purchase technology, and thereby turbocharge their adoption and use of innovative technologies. The company serves as the go-to-market representative of a collective of legal technology companies that it has thoroughly vetted and selected as best-in-breed in each company’s category. LexFusion represents just one company per category, so that all of the companies are complementary, not competitive.

The explosion of the legal tech sector has been a blessing in many ways, with law firms and corporate legal departments able to choose from more vendors than ever in any given segment. But it also presents the challenge for buyers of figuring out which technological solutions to adopt and how to integrate them. That’s the valuable service that LexFusion seeks to provide — and Flaherty, with his encyclopedic knowledge of legal tech and many years of experience in the space, is uniquely well situated to help.

That’s a wrap. Will the next week in legal news be as exciting and eventful as this one was? Tune in next time….

Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.