Judicial Notice: April 3, 2021

Notable legal news from the week that was.

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.

Happy Easter (if applicable). We’re spending the holiday weekend with my parents, who are within our “pandemic pod” and also vaccinated, as am I. Tomorrow our son will have an Easter egg hunt for one.

As some of you know, Covid-19 took a toll on my physical fitness. But now that I’m vaccinated, I feel comfortable going back to the gym, especially in light of the enhanced safety measures and reduced capacity. Feel free to join me if you too have put on some pandemic pounds that you want to shed in anticipation of a post-vaccination, post-Zoom world. At one point I was 20 pounds above my pre-Covid weight, but I’ve now gotten it down to around 10 extra pounds, which I hope to lose between now and Memorial Day.

Now, on to the news.

Lawyer of the Week: Glenn Stephens III.

Glenn Stephens III is a lawyer in Washington, D.C., who told ethics regulators that it would be an “honor” for him to get disbarred. So they gave him his wish:

Stephens’ comment about disbarment came after he received a notice of ethics charges from the Office of Disciplinary Counsel of the D.C. Bar in April 2017. The charges arose from Stephens’ representation of himself and others in litigation. He responded in this March 2018 email:

“Please don’t kill trees, waste taxpayer resources and ODC personnel on me. ODC has no credibility or legitimacy to me. Or the drivel you generate. You are simply dishonest lawyers who do nothing to regulate dishonest lawyers. And racists to boot. Rather than wasting time, money, and paper on your sophistries, please disbar me. Disbarment by ODC would be an honor. To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt. But a disbarment letter from ODC will be framed and go up right alongside those diplomas. Please do me the honor of disbarring me. I will be so very very proud.”

Congratulations, Mr. Stephens, on the additional honor of being our Lawyer — or make that Ex-Lawyer — of the Week. Feel free to print out this page and frame it.

Runner-up: Rep. Matt Gaetz (R-Fla.). The Department of Justice is reportedly investigating whether Gaetz, an outspoken ally of former president Donald Trump, broke federal sex trafficking laws. Yikes. You don’t need a law degree (Gaetz is a graduate of William & Mary Law) to know that federal sex trafficking laws are serious — and come with serious penalties.

Judge of the Week: Judge Ketanji Brown Jackson.

On Monday, President Joe Biden announced his eagerly anticipated, very impressive first slate of judicial nominees. My quick take: they’re eminently qualified and impressively diverse, and the fact that President Biden moved so quickly to nominate them is a sign that his administration intends to prioritize judicial nominations. (For more detailed analysis, please see my lengthy Twitter thread, based in part on a media briefing with a senior White House official to which I was kindly invited.)

Our Judge of the Week, a runner-up for JOTW back in February, is the most prominent of the new nominees: Judge Ketanji Brown Jackson, currently serving on the U.S. District Court for the District of Columbia, now nominated to the U.S. Court of Appeals for the D.C. Circuit (for the seat formerly held by Attorney General Merrick Garland). The D.C. Circuit is widely regarded as second only to the Supreme Court in power and prestige, as well as a stepping stone to SCOTUS. Of the dozen most recent justices, a third — Justices Scalia, Thomas, Ginsburg, and Kavanaugh — warmed the D.C. Circuit bench before moving on up to One First Street. [UPDATE (10:00 p.m.): The statistic remains unchanged, but the justices should actually be Chief Justice Roberts and Justices Ginsburg, Thomas, and Kavanaugh.]

Judge Jackson, 50, has a platinum-plated resume: Harvard College and Harvard Law School, both with honors; three federal clerkships, including a SCOTUS clerkship with another recent JOTW, the possibly retiring Justice Breyer; stints at two top Biglaw firms, Goodwin Procter and Morrison & Foerster; service in federal government, as a federal public defender and on the U.S. Sentencing Commission; and finally, eight years as a highly respected district court judge. And as a Black woman, Judge Jackson might very well be President Biden’s next nominee to the Supreme Court, given his campaign promise to place the first Black woman on SCOTUS.

She has issued some rulings in high-profile cases that Republican senators will likely grill her about at her hearings, but I predict that she will be confirmed in the end. So congratulations to Judge Jackson on her nomination, and good luck to her in the confirmation process.

Runner-up: Judge Don Willett of the Fifth Circuit. It’s not every day that you see Mark Joseph Stern, writing in the pages of Slate (via How Appealing), offer praise for a conservative, Trump-appointed judge. But as Stern explains, Judge Willett deserves commendation for his “impressive and even courageous crusade for police accountability, challenging Supreme Court precedents that shield both state and federal law enforcement from liability when they brutalize civilians.”

And here is a sad update about last week’s Judge of the Week, Judge Paul Feinman. On Wednesday, just a week after stepping down from the New York Court of Appeals, he passed away of acute myeloid leukemia, at the age of 61. May he rest in peace.

Ruling of the Week: Facebook v. Duguid.

Last week was an exciting week in the judiciary; this week, not so much. Here are some of the more interesting decisions (courtesy of Howard Bashman’s How Appealing and the Institute for Justice’s Short Circuit):

  • the Fourth Circuit’s decision upholding the constitutionality of the FBI watchlist;

  • the order from Justice Alison Tuitt of New York Supreme Court directing New York prison officials to immediately begin offering Covid-19 vaccines to all incarcerated people;

  • the Second Circuit’s en banc ruling in a closely watched Fair Housing Act case; and

  • the Third Circuit denying en banc review in United States v. Safehouse (an interesting case about the legality of supervised drug-injection sites, which I discussed earlier this year).

For Ruling of the Week, though, I’m going with Facebook v. Duguid, for three reasons. First, it was the most interesting Supreme Court decision from this week, even if there wasn’t much competition (from a water rights dispute between Florida and Georgia and a challenge to FCC media ownership rules, both decided unanimously — yawn). Second, it involved celebrity advocates on both sides: former U.S. solicitor general Paul Clement, representing Facebook, and leading lexicographer Bryan Garner, representing Duguid. Third, it could have practical consequences for all of us — annoying ones, unfortunately.

Facebook v. Duguid presented a rather knotty question of statutory interpretation: what qualifies as an “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA), the federal law that bans robocalls and robotexts. The TCPA defines “autodialers” as equipment with the ability “to store or produce telephone numbers to be called, using a random or sequential number generator.” At oral argument, the justices struggled with the question of whether the clause “using a random or sequential number generator” modifies both of the two verbs that precede it (“store” and “produce”), as Facebook claimed, or only the closest one (“produce”), as Duguid claimed.

In the end, the justices wound up on the same side, voting 9-0 for Facebook. In her opinion for eight justices (Justice Alito concurred in the judgment), Justice Sotomayor conducted a textualist analysis and concluded that “[b]ecause Facebook’s notification system neither stores nor produces numbers ‘using a random or sequential number generator,’ it is not an autodialer.” So Facebook wins.

Here’s the annoying practical consequence for all of us. Per Ars Technica (via SCOTUSblog), this ruling has the potential to unleash a flood of new robocalls, since hardly any autodialers being used to spam people today use an “automatic telephone dialing system” as defined by the Court. In other words, the statutory language no longer reflects the technological realities of robodialing.

But it’s not the Supreme Court’s job to update the statute, putting us at the mercy of robocallers until the TCPA gets updated. Help us, Congress — you’re our only hope!

A final comment on Facebook v. Duguid:

In fairness to Bryan Garner, it’s not his fault; he did an excellent job in his maiden voyage at One First Street. As we all know, by the time a case gets to SCOTUS, it’s almost always about the law and the facts, not about the advocates and their performances (and I say this as a leading fanboy of the Supreme Court bar).

But still, congratulations to the Kirkland & Ellis team, led by Paul Clement, and their co-counsel from Latham & Watkins, led by Andrew Clubok. You can view the names of all the team members — it’s an impressive roster — on the cover of Facebook’s opening brief. The next time you get a spam call or text, these are the people to blame.

Litigation of the Week: NCAA v. Alston.

Going into this week, I had my eye on Goldman Sachs v. Arkansas Teacher Retirement System as a possible Litigation of the Week. As Tom McParland noted over at Law.com, it’s a “closely watched” and “high-stakes” case, with “the potential to reshape the landscape of securities class actions across the country.” The Wall Street Journal editorial board warned that “more businesses will be looted [by plaintiffs’ firms] if the Justices don’t restrain… dubious shareholder class actions” based on generic, aspirational statements in securities filings. And SCOTUS doesn’t take securities cases very often, even though they loom large in Biglaw litigation practices — so when the Court does grant in a securities case, it’s generally worth watching.

But based on the oral argument — which featured two stars of the Supreme Court bar, Kannon Shanmugam and Tom Goldstein, plus a rising star, Sopan Joshi of the Office of the Solicitor General — it sounds like this case could end up being a bust. As Adam Liptak noted in the New York Times, the three advocates seemed to agree on most of the overarching legal principles, disagreeing mainly on what should happen in this specific case. I wouldn’t be shocked if this case gets dismissed as improvidently granted or if it results in a boring per curiam and a “get out of our faces” remand to the Second Circuit (a la IBM v. Jander).

As I’ve mentioned in these pages before, I’m both ignorant of and indifferent to almost all sports (with the possible exception of tennis). But in honor of the annual insanity known as “March Madness,” I’m selecting NCAA v. Alston as Litigation of the Week.

The question presented in this case is whether National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. The resolution of this long-running case could have important implications for the world of college sports — and also the March Madness tournament, which generates more than $800 million for the NCAA every year.

Here’s what’s interesting, noted by Robert Barnes in the Washington Post: at least based on the oral argument, the ruling probably won’t break along partisan lines. Instead, the justices — several of them sports fans — asked what Barnes described as “tough questions” that “did not conform to the usual ideological patterns.” So how SCOTUS resolves this case is a real jump ball. (Did I use that metaphor correctly?)

Deal of the Week: the Frontier Airlines IPO.

Yes, it’s hard for me to resist Donuts — as in Donuts Inc, a top-level domain provider. Advised by Morrison & Foerster, private equity firm Ethos Capital LLC is acquiring a controlling stake in Donuts from Abry Partners, advised by Kirkland & Ellis.

But for Deal of the Week, I’m going with the initial public offering of Frontier Airlines, the well-known, Denver-based budget airline. It involved a significant sum of money — before the start of trading, Frontier said it expected to raise $266 million — and more importantly, it suggests that a recovery in the travel sector, beaten down during the coronavirus pandemic, might be underway (at least in the personal, budget-travel space of Frontier; high-end business travel will take longer to bounce back).

Who were the advisors on the deal? As you can see from Frontier’s Form S-1, two titans of the capital markets world: Latham & Watkins, a leading law firm for issuers, and Davis Polk & Wardwell, a go-to firm for underwriters.

Runner-up (announced on March 26, so I guess it should have been in last week’s round-up): the plan of Madison Square Garden Entertainment, which owns Madison Square Garden Arena, to buy MSG Networks, which broadcasts New York Knicks games to local fans, for around $900 million. The advisers on the deal were Debevoise & Plimpton, which advised billionaire James Dolan and his family, the owners of Madison Square Garden Entertainment; Davis Polk, which advised the special committee of MSG Networks; Wachtell Lipton, which advised the special committee of Madison Square Garden Entertainment; and Paul, Weiss, which advised Moelis & Company LLC, financial advisor to the Madison Square Garden Entertainment committee (along with The Raine Group).

Law Firms of the Week: the 50 or so firms that have announced special bonuses for their associates this year.

[UPDATE (4/5/2021, 1:15 pm.): Whoops, how embarrassing — I completely forgot to name a Law Firm of the Week! I’m writing this after the fact. I’ll just go with the roughly 50 firms that have announced special bonuses for their associates this year, which is a good way to acknowledge this significant news development.]

Lateral Moves of the Week: a pair of private-equity pickups by Milbank and Sidley.

This was the most competitive category of the week, given the tremendous amount of lateral movement. I’ll discuss them in categories.

First, two high-powered partners returned to Biglaw from government service. But both Eugene Scalia, former Secretary of Labor, and Andrei Iancu, former director of the U.S. Patent and Trademark Office, returned to their former firms — Gibson Dunn and Irell & Manella, respectively — so their moves weren’t particularly exciting or surprising. (Somewhat more interesting: the move of Heath Tarbert, former chairman of the Commodity Futures Trading Commission (CFTC), to Citadel Securities, where the former clerk to Justice Thomas will become chief legal officer.)1

Second, there was a whole lot of in-house lateraling going on:

  • McDonald’s hired a new general counsel, Desiree Ralls-Morrison, formerly of Boston Scientific (and one of just 50 Black lawyers in the top legal role at Fortune 1000 companies);

  • Coinbase hired two prominent in-house lawyers, Ian Rooney from Morgan Stanley and Molly Abraham from Kitty Hawk (the flying car startup), ahead of Coinbase’s planned IPO this month; and

  • Truveta Inc., a healthcare data startup, hired Microsoft veteran David Heiner Jr. as its chief policy officer and general counsel.

Third, there were several notable Biglaw moves, including but not limited to the following:

  • Baker Botts hired Avner Bengera, global chair of M&A at Hughes Hubbard & Reed, to co-head Baker’s cross-border M&A practice in New York;

  • Kirkland & Ellis hired Christine Okike, a young star of the bankruptcy bar, from Skadden Arps in New York;

  • Greenberg Traurig hired Adam Hoffinger, a white-collar specialist and former federal prosecutor, from Schulte Roth & Zabel in D.C.; and

  • King & Spalding and Latham & Watkins made notable pharma/life sciences hires for their D.C. offices, specifically, Eva Temkin (from the U.S. Food and Drug Administration) and Christopher Schott (from Hogan Lovells), respectively.

For Lateral Moves of the Week, though, I’m going with two high-profile hires in the red-hot private equity space:

Both Schulte and Ropes are longtime leaders in representing investment funds. But as these recent raids reflect, with the boom in PE M&A showing no signs of abating, they’ll need to protect their partners from poaching.

This frenzy of lateral partner hiring all took place against the backdrop of ongoing associate bonus wars, reflecting a fierce fight for associate talent as well. Will the lateral market and Biglaw more generally remain this hot, or is the system starting to overheat? Keep reading Judicial Notice each week (and please spread the word about it to friends and colleagues), and I’ll keep you posted.

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.



[UPDATE (8/27/2021): I received this interesting reader comment about Heath Tarbert’s move quite some time ago, but I neglected to add it until now. Here it is:

“There one was one recent lateral move I thought would have garnered more attention. I work in the futures and commodities space, and this was something a lot of folks in my world are talking about.”

“Citadel Securities, the massive market making giant, picked up former CFTC chair Heath Tarbert as its Chief Legal Officer. Citadel Securities is of course connected to the hedge fund Citadel Advisors. The CFTC is the federal agency that regulates commodities and futures trading, as Tarbert's move to Citadel came just weeks after Tarbert, a Trump appointee, stepped down. It's not super common to see top federal regulators in the finance world jump directly to a market participant, as they usually go to Biglaw. It's also noteworthy in light of Citadel's recent troubles with GameStop and Melvin Capital, and perhaps a signal of the fund's intentions in the futures and commodities trading space.”]