Judicial Notice: February 13, 2021

Notable legal news from the week that was.

Welcome to Original Jurisdiction, a new 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.

I hope everyone had a good week. Mine was eventful and (mostly) enjoyable. It started off on an unfortunate note — I had to have a fractured and infected tooth extracted (ouch), which caused me to miss a speaking engagement (a panel hosted by Yale’s chapter of the American Constitution Society) — but it got better from there.

On Wednesday, my husband and I left Manhattan to spend the afternoon in suburban New Jersey for a home inspection; we’re moving to the Garden State later this year, fingers crossed. On Friday, I spoke at the UVA Federalist Society’s third annual Originalism Symposium, and this morning I spoke at the 2021 Harvard APALSA Conference. Thanks to these organizations for the kind invitations; it’s always a pleasure to speak to and meet with law students, even if just virtually.

Now, on to the news.

Lawyer of the Week: Rod Ponton.

Who’s Rod Ponton? He’s this guy — aka #LawyerCat:

Thanks to Ponton for much-needed laughs — and for having a good sense of humor about the whole episode. As he told the TODAY Show, “I got as big a laugh out of it as everybody else.” And it turns out that there’s a positive takeaway from all this, as noted by Judge Roy Ferguson, who presided over the proceedings (and helped Ponton turn off that cat filter):

Now, as often happens when a person goes viral, some less positive aspects of Ponton’s past have surfaced. We learned about his firing as Brewster County District Attorney, amidst a controversy over claims he made of misconduct by the Alpine Police Department, as well as questions about his billing practices. And we heard about allegations from Ilana Lipsen, who claims that back when Ponton was a prosecutor, he ordered an allegedly improper and harassing search of her smoke shop in Alpine, Texas, years after they had a brief sexual relationship (which she claims she ended after he became “creepy”). For his part, Ponton denies they had a relationship, denies that they even had sex, and claims that the charges against Lipsen “were brought by the police and the authorities” and “handled professionally.”

Runners-up: prominent conservative lawyers who took positions adverse to President Donald Trump and his defenders during the impeachment trial. They include Ted Olson, who told the National Law Journal that he favored conviction; Chuck Cooper, who didn’t go quite that far, but did write a much buzzed-about Wall Street Journal piece arguing that the Senate did have the authority to put Trump on trial, despite his having left office; and Peter Keisler, who co-authored a piece for The Atlantic (with Richard Bernstein) arguing that the First Amendment in no way precluded the Senate from convicting Trump for “odious speech that rapidly and foreseeably resulted in deadly violence.”

Surprising no one, the Senate just voted 57-43 in favor of acquittal. But with seven Republican senators crossing the aisle, the vote represented the most bipartisan vote for convicting a president in history.

Judge of the Week: Justice Amy Coney Barrett.

Late on Thursday night, the Supreme Court refused to vacate an injunction from the Eleventh Circuit that prohibited Alabama from executing Willie Smith without his pastor by his side. Justice Elena Kagan wrote an opinion defending the Court’s decision, which was joined Justices Breyer, Sotomayor, and… Barrett?

Yes, Justice Amy Coney Barrett, the newest member of SCOTUS. Expected by many to be a lockstep conservative, Justice Barrett sided with the liberals in this high-profile case. Many might speculate as to why; perhaps her own personal religious commitments made her sympathetic to Willie Smith’s plight. But regardless of the reasons, Justice Barrett did break with her fellow conservatives — including Justice Brett Kavanaugh, who dissented.

Based on how Dunn v. Smith turned out, we know that at least one of the two remaining justices, Justices Alito or Gorsuch, voted with Justice Kagan and the liberals (and my money is on Gorsuch). But that justice or justices did not join the Kagan concurrence, while Justice Barrett did. As Professor Josh Blackman told Bloomberg Law, her decision to sign on to the Kagan opinion was “significant,” and sent a message: she makes up her own mind about matters.

Runner-up: Judge Ketanji Brown Jackson, the subject of a glowing opinion piece by Ruth Marcus of the Washington Post entitled “You probably haven’t heard of Judge Ketanji Brown Jackson. That’s going to change.” Per Nina Totenberg of NPR, Judge Jackson is likely to be nominated to fill the D.C. Circuit seat that will soon be vacated by Judge Merrick B. Garland after he’s confirmed as U.S. attorney general. And as the ABA Journal noted, Judge Jackson was previously considered for SCOTUS, for the nomination that went to Judge Garland — and might be considered again, should a vacancy arise during the Biden presidency. (It would be fitting for her to replace Justice Breyer, for whom she clerked, just as Justice Kavanaugh replaced Justice Kennedy, for whom he clerked.)

Ruling of the Week: Amgen Inc. v. Sanofi.

On Thursday, the Federal Circuit affirmed a decision by Judge Richard G. Andrews (D. Del.) holding that two Amgen patents, relating to its cholesterol medication Repatha, are too broad to be enabled. The ruling was a nice win for Sanofi and also fellow defendant Regeneron (which shot to fame last year for its antibody cocktail treatment for Covid-19 that was touted by Trump).

The closely watched case will have significant implications for what can and can’t be patented going forward, which is why it generated significant industry interest. Bristol Myers Squibb and Merck filed amicus briefs in support of Amgen, while Eli Lilly and Pfizer weighed in on the side of Sanofi and Regeneron.

The case also ginned up lots of legal work. Amgen was represented by lawyers from a slew of outside firms, including MoloLamken, Cravath, McDermott Will & Emery, Schertler Onorato, Young Conaway, and Quinn Emanuel. Sanofi and Regeneron were represented by Arnold & Porter and Kirkland & Ellis.

Runner-up: Lucio v. Lumpkin, in which a sharply divided Fifth Circuit, sitting en banc, denied federal habeas relief to a mother who was sentenced to death for killing her two-year-old daughter. The vote was 10-7, with Judge Andrew Oldham writing an opinion joined by six other judges, Judge Leslie Southwick writing a concurrence joined by two other judges, and four judges — Judges Jennifer Elrod, Catharina Haynes, Patrick Higginbotham, and Stephen Higginson — writing separate dissents.

The line-ups are noteworthy; Judge Elrod is quite conservative, Judge Haynes is a moderate conservative, and you don’t often see them dissenting from their colleagues in criminal cases. The 115 pages of opinions explore, with great thoroughness, how to properly apply the standards of the Antiterrorism and Effective Death Penalty Act for granting federal habeas relief. (Gavel bang: Howard Bashman/How Appealing.)

(Speaking of Judge Elrod, in case you missed it, check out her great performance with Judge Charles Eskridge (S.D. Tex.) of a pandemic-inspired rendition of “You’ll Be Back” from Hamilton.)

Litigation of the Week: Donald Trump’s impeachment trial.

While not a conventional litigation, former President Trump’s trial before the Senate sucked all the oxygen out of the proverbial room. So I’m naming it Litigation of the Week, but I don’t have much more to say about it. If you want a good recap, just read George Conway’s Washington Post write-up.

I will simply say that yes, the opening statement of Bruce Castor, one of Trump’s two main defense attorneys, really was as terrible as everyone said it was. Don’t believe me? Here’s the transcript — judge for yourself.

Deal of the Week: Archer’s merger with Atlas Crest Investment Corp.

Archer Aviation is a cool company: it aspires to be the world’s first electric airline. Atlas Crest Investment Corp. is, you guessed it, a SPAC — a special purpose acquisition company. The two are merging, and after the transaction, Archer will be a publicly traded company. So this transaction, involving a post-merger entity with a huge market cap ($3.8 billion), a sexy industry (electric planes), and a hot Wall Street trend (the SPAC attack), checks all the boxes for Deal of the Week.

Which law firms are involved? The leading law firms for these types of players: Cooley, for the tech company, and Kirkland & Ellis, for the investment vehicle. In addition, White & Case is serving as aviation counsel for Archer, as well as representing Archer in a contemporaneously announced deal with United Airlines, in which United will both invest in Archer and put in an order for $1 billion in Archer aircraft.

Taking a step back, is all this SPAC-ulation a good thing? Andrew Ross Sorkin has this excellent explanation of why SPACs are so appealing — to their sponsors, who make out well even if the investment does not. For investors in SPACs, they’re more of a mixed bag, and the jury is still out on whether they’ll be a good thing overall for the markets or the economy writ large.

Law Firm of the Week: Latham & Watkins.

Yes, I know — I gave Law Firm of the Week honors to Latham not that long ago. But what can I say? When you’re hot, you’re hot. Latham’s legendary litigation practice scored two major wins this month.

On Wednesday, Latham scored a huge victory on behalf of client LG Chem Ltd., before the U.S. International Trade Commission (ITC). LG accused SK Innovation, a rival South Korean maker of lithium ion batteries, of stealing its battery-making secrets — and asked the ITC to ban SK’s South Korean-made batteries from the U.S. market for 10 years. Why is this a big deal? Lithium ion batteries are the ones used to power electric cars, and the market for them is booming.

The ITC did impose such a ten-year ban on SK batteries from South Korea, finding it to be appropriate punishment for SK’s destruction of evidence that LG claimed it needed to prove its case. President Joe Biden can overturn the ruling on public policy grounds, but if he does not, it will take effect in 60 days — and deal “a big blow” to SK, according to Bloomberg Intelligence analyst Horace Chan. Congrats to the Latham team of Bert Reiser, David Callahan, Gabriel Gross, Jeffrey Homrig, Joseph Lee, and Sarah Gragert.

This win came on the heels of another Latham triumph in a high-profile, high-technology case. In the first week of February, in the first virtual patent bench trial in Massachusetts, Judge Allison Burroughs (D. Mass.) ruled in favor of Latham’s client, Astellas Pharma Inc., bringing to an end a long-running dispute with ImStem Biotechnology Inc. over inventorship on patents related to the production of human mesenchymal stem cells, an exciting new frontier in medical therapies. The team consisted of partners David Frazier, Michael Morin, Charles Sanders, and Brenda Danek, and associates Reba Rabenstein, Lauren Sharkey, Yi Sun, and Jenny Wang. Two of the associates, Rabenstein and Sun, had major stand-up roles, examining Latham’s lead fact witness and the other side’s patent law expert, respectively.

Latham’s prowess in the courtroom shouldn’t overshadow its success in the boardroom. Just yesterday, in a new ranking from MergerLinks of Europe’s top ten private equity lawyers, London corporate practice co-chair Farah O'Brien took the number-one spot, handling eight deals worth almost £31 billion ($43 billion). The firm’s strength in PE work, rather than being limited to the United States, is global in scope.

Lateral Move of the Week: Wells Fargo’s hiring of a trio of deputy GCs.

I tend to focus on law firm lateral moves in this column, but notable movement happens in the in-house world too. So kudos to Wells Fargo for successfully recruiting new deputy general counsels from three of its leading competitors — American Express, Barclays, and JPMorgan Chase:

  • J. Bertram “Bert” Fuqua, Americas general counsel for Barclays, will join Wells Fargo next month as deputy general counsel for corporate and investment banking;

  • JPMorgan’s George Thompson, general counsel for Chase consumer and community banking, will become Wells Fargo’s deputy general counsel for consumer lending when he comes aboard this spring; and

  • Tangela Richter, who spent four and a half years in-house at Amex, joined Wells Fargo in late January as deputy general counsel for enterprise functions.

Runner-up: Proskauer Rose’s hiring of Will Chuchawat, former head of Sheppard Mullin’s M&A practice. He was drawn to Proskauer as a platform because of its handling of some of 2020’s biggest deals, such as ForgeLight’s acquisition of a majority stake in Univision. For its part, Proskauer was impressed by what firm chair Steven Ellis described as Chuchawat’s “entrepreneurial, inclusive, fire-in-the-belly energy and drive.” Despite all of the uncertainty of last year, 2020 was a record year for Chuchawat in terms of number of deals, and he expects the activity to continue into 2021.

As always, thank you for reading. Early wishes for a happy Presidents’ Day, and enjoy the long holiday weekend.


Thanks for reading Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction on 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.

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