Judicial Notice: February 27, 2021

Notable legal news from the week that was.

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Last week was nice and normal for me. I spent much of it away from Twitter, instead focusing on getting together all the paperwork needed for the mortgage my husband and I are now applying for. I also managed to cook three Blue Apron meals. Yay!

Now, on to the news.

Lawyer of the Week: Cyrus R. Vance Jr.

On Monday, Manhattan District Attorney Cyrus Vance finally got his hands on former president Donald Trump’s tax records, after an 18-month legal battle that made its way all to the U.S. Supreme Court.

Last July, in Trump v. Vance, the Court rejected Trump’s broad claim of absolute immunity from state criminal process, but allowed him to “raise further arguments as appropriate” on remand. Trump subsequently raised additional objections to the subpoena, which were quickly rejected by Judge Victor Marrero (S.D.N.Y.) and a unanimous panel of the Second Circuit. Then on Monday, the Supreme Court rejected Trump’s final effort to get help from SCOTUS, in a brief, unsigned order that noted no dissents. As a result, Cy Vance finally received the documents later that same day.

Now, this is just the beginning of a very long road. Going through the records — eight years of material, millions of pages — will take time. Vance and his talented team — including Mark Pomerantz, the highly respected ex-prosecutor now on loan to Vance from Paul Weiss — have a lot of work ahead of them. But obtaining these records was a critical first step. So kudos to Vance for finally prevailing, after a year and a half of a hard-fought legal battle.

Runner-up: Judge Merrick B. Garland, whose confirmation hearings for U.S. attorney general took place last week (but were not terribly eventful).

Law student of the week: Lesley Pilgrim, a 3L at Chapman Law, who the DMV accidentally allowed to be photographed for her driver’s license wearing a face mask. Oops!

Judge of the Week: Judge Jed S. Rakoff.

The obvious pick for Judge of the Week would be Justice Clarence Thomas, whose dissent from the denial of certiorari in Republican Party of Pennsylvania v. Degraffenreid garnered significant attention (as well as some criticism, for giving too much credence to Trump’s claims of election fraud). But as I’ve mentioned before, you don’t read Original Jurisdiction for the obvious.

So instead I’m bestowing JOTW honors on Judge Jed Rakoff (S.D.N.Y.), author of a widely acclaimed new book, Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System. Judge Rakoff, a leading intellectual of the federal bench, has long been concerned with the operation of our justice system, including where it fails and how it can be improved — and his new book represents, in the words of top trial lawyer Gary Naftalis, “the finest and most incisive critique of the shortcomings of our criminal and civil justice systems.”

If you share Judge Rakoff’s interest in and concern for our system of justice, this is a book worth checking out. To get a sense of the book and its arguments, see Judge Rakoff’s recent interviews with Joel Cohen for Law & Crime and Randy Maniloff for the ABA Journal.

Ruling of the Week: Brownback v. King.

There was lots of competition in this category for this week. In addition to the aforementioned cases of Trump v. Vance and Republican Party of Pennsylvania v. Degraffenreid, the past week also saw the Second Circuit’s refusal to grant rehearing en banc in Mandala v. NTT Data, Inc., regarding whether a company’s ban on hiring convicted felons had a disparate impact on Black job applicants in violation of Title VII, as well as the Ninth Circuit’s decision to grant rehearing en banc in Duncan v. Becerra, regarding the constitutionality of California’s ban on so-called “large capacity magazines” that hold more than ten rounds of ammunition.

But those rulings were really more procedural in nature. So I’m selecting the Supreme Court’s decision on the merits in Brownback v. King as Ruling of the Week.

In July 2014, James King, at the time a 21-year-old college student, was choked and brutally beaten by a detective and an FBI agent who mistakenly thought he was a fugitive they were seeking (even though King looked nothing like the fugitive). King sued the federal government, under the Federal Tort Claims Act (FTCA), and the officers individually, under Bivens. The district court dismissed the FTCA claims based on qualified immunity, then dismissed the Bivens claims based on the FTCA’s so-called “judgment bar,” which provides that “the judgment in any action” under the FTCA “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”

This ruling, while technical in nature, is important. As Jonathan Feinberg, vice president of the National Police Accountability Project, told Bloomberg Law, “The court’s ruling does have a significant impact on civil rights litigation in the future… [and] unfortunately will provide the government with a powerful method to prevent victims of misconduct at the hands of federal officers from holding them accountable.”

James King’s particular case, however, isn’t over. As noted by Jacob Sullum over at Reason, a footnote in Justice Thomas’s opinion and a concurrence by Justice Sonia Sotomayor make clear that King on remand can raise certain other arguments (properly preserved, and not previously decided). So as King told Sullum, “I'm looking forward to being back in court. The officers who assaulted me are not above the law and neither is anyone else, simply by virtue of being employed by the government.”

Litigation of the Week: the battle over race-conscious college admissions.

Lots of competition here too. My four runners-up:

  • the almost 50 GameStop-related class actions, which drew a star-studded cast of Biglaw litigators to appear before the U.S. Judicial Panel on Multidistrict Litigation;

  • VLSI Technologies v. Intel (W.D. Tex.), a billion-dollar patent case that’s one of the few matters being tried in person in the middle of the coronavirus pandemic;

  • Lange v. California, a difficult case just argued before the Supreme Court, regarding whether “hot pursuit” for misdemeanors allows police to enter a home without a warrant; and

  • Dominion Voting Systems v. Lindell (D.D.C.), the $1.3 billion defamation action filed by the voting-machine manufacturer against Mike Lindell, accusing the MyPillow CEO of propounding false and damaging conspiracy theories about Dominion’s voting machines.

But sometimes I have no choice but to go with the obvious: the pending legal challenges to the consideration of race in college admissions.

Two important developments happened last week in these cases — both on Thursday, actually. First, in Students for Fair Admissions, Inc. v. Harvard, SFFA filed for certiorari. The cert petition, by the conservative legal powerhouse of Consovoy McCarthy, calls upon SCOTUS to “overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions.”

Second, after the Department of Justice dropped its lawsuit charging Yale with discriminating against Asian-American and white applicants, SFFA stepped in to file its own case against Yale. This could provide a model for other situations where the Biden Administration reverses course from the Trump Administration: a private party can step forward and fill the void.

What will SCOTUS do in the Harvard case? It’s hard to say. On the one hand, with a 6-3 majority, the conservatives might have the votes to deal a death blow to affirmative action. And Chief Justice John Roberts, who is generally most likely to defect to the left, might not do so in this case, given his famously strong feelings about racial preferences in education: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

On the other hand, race in admissions for higher education has been going on for more than 50 years, and the precedents that govern it are some of the most famous cases in Supreme Court history: Bakke, Grutter, Fisher. Does Chief Justice Roberts — and Justice Brett Kavanaugh, who shares the Chief’s concern for the Court’s reputation and institutional legitimacy, and has his own well-known commitment to diversity in elite institutions — really want to go there?

If I were Chief Justice Roberts or Justice Kavanaugh, I’d vote to deny cert in the Harvard case and kick the can down the road. But it takes just four votes to grant cert — and I could easily see the four other conservatives voting to grant, hoping that they can win the vote of either the Chief or Justice Kavanaugh. Stay tuned.

Deal of the Week: Parallel Inc.’s merger with a Canadian SPAC.

Again, an embarrassment of riches. The contenders included:

  • ReNew Power Private’s $8 billion, go-public merger with a special purpose acquisition company (SPAC), starring Latham & Watkins for ReNew, Skadden Arps for the SPAC, and Cleary Gottlieb for Goldman Sachs, ReNew’s largest shareholder;

  • M&T Bank Corp.’s $7.6 billion, all-stock acquisition of People’s United Financial Inc., starring Sullivan & Cromwell for M&T (of course) and Simpson Thacher for People’s United;

  • Apex Clearing Holdings’s $4.7 billion, go-public merger with yet another SPAC, starring Sidley Austin for Apex and Graubard Miller for the SPAC (the names of these things really don’t matter);

  • Carlyle Group’s creation of a $4.1 billion private equity credit line, focused on promoting board diversity — a great idea, given the research on the performance of companies with diverse boards — starring Latham & Watkins for Carlyle; and

  • Wilson Sonsini’s deal with Morgan Stanley, which will give the investment bank access to the law firm’s proprietary capitalization management software.

Also, I’d like to give a shout-out to two big-ticket settlements (also deals, just deals that happen to resolve litigation): the Adam Neumann/SoftBank settlement, which clears the way for a WeWork IPO, and the latest Facebook privacy settlement, this time for $650 million. Congrats to Edelson, Robbins Geller, and Labaton Sucharow, counsel to the Facebook plaintiffs.

But for Deal of the Week, I’m picking the merger of Parallel Inc., an Atlanta-based cannabis producer led by chewing gum billionaire William “Beau” Wrigley Jr., with a Canadian SPAC, Ceres Acquisition Corp. The combined company will be listed on Toronto’s NEO Exchange and be worth almost $1.9 billion. Yes weed can!

Sounds like one kushy engagement. Congrats to Greenberg Traurig and Toronto-based Aird & Berli, who advised Parallel, and Manatt Phelps & Phillips and Montreal-founded Stikeman Elliott, who advised the SPAC.

Why did I go with this deal? It’s not because I think dope is dope; truth be told, I’m more of a teetotaler than a toker (and I find the smell of secondhand marijuana smoke to be disgusting). But with billionaires backing the bud, IPOs lighting up the markets, and the Biden Administration more positively disposed toward pot than the Trump Administration — Vice President Kamala Harris has famously admitted to inhaling, much to her father’s chagrin — there’s no doubt the grass is now greener for grass.

Law Firm of the Week: Clare Locke.

Clare Locke is no stranger to these pages. The high-powered litigation boutique, arguably the nation’s top plaintiff-side defamation firm, has been all over the news lately, for its representation of Dominion Voting Systems in libel lawsuits against the likes of Rudy Giuliani, Sidney Powell, and Mike Lindell.

But even before the Dominion cases, Clare Locke had one of most interesting practices around. Since leaving the partnership of Kirkland & Ellis to found their firm in 2014, the husband and wife team of Tom Clare and Libby Locke have handled headline-making cases, including Sarah Palin’s lawsuit against the New York Times and former UVA dean Nicole Eramo’s successful suit against Rolling Stone (which settled after a jury awarded Clare Locke’s client $3 million). To learn more about Clare Locke, check out this very interesting profile by Erik Larson, published last week by Bloomberg Law.

On a lighter note, Clare Locke penned a PAW-some demand letter to Twitter, after Twitter took down the account of @TheOvalPawffice, a fan/parody account dedicated to the Biden family’s presidential pets. The letter, full of canine-themed puns, was very funny — but also effective. Twitter promptly reinstated the account.

Lateral Move of the Week: Foley & Lardner hiring Louis Lehot and six other lawyers.

Foley & Lardner just significantly expanded its presence in northern California, hiring seven new corporate lawyers: partners Natasha Allen, Brandee Diamond, Nicole Hatcher, and Louis Lehot; senior counsel Eric Chow; and special counsels Alex Ravski and Catherine Zhu. Joining the firm along with eight other legal professionals, they will be based in Foley’s San Francisco and Silicon Valley offices.

It’s an impressive group, but not without controversy. As some of you might recall, Louis Lehot, formerly a top rainmaker at DLA Piper, was accused of sexual assault by a fellow DLA partner, Vanina Guerrero. Lehot denied the allegations, saying their relationship was consensual, but “acknowledge[d] poor judgment in developing an emotional relationship” with Guerrero. Foley & Lardner’s Chairman and CEO, Jay Rothman, was asked about the allegations against Lehot, in an interview with Bloomberg Law. He told the outlet, “We certainly vetted it and are very comfortable with where we ended up.”

The hiring of Lehot is noteworthy because in general, scandal-averse Biglaw firms shy away from lightning rods. After the allegations arose in October 2019, DLA Piper and Lehot parted ways, and Lehot founded his own boutique — a common career move for partners who leave Biglaw amid controversy (that and “consulting”).

So it’s interesting to see Lehot return to Biglaw, since it doesn’t always happen in such circumstances. On the bright side for Foley, Lehot did move with an entire team, including several women and people of color — which allowed Jay Rothman to state, in Foley’s announcement of the move, that the hires “represent[] meaningful progress towards our ongoing commitment to increase diversity and inclusion across the firm.”

The legal world is full of surprises, which is what makes following it so interesting. I look forward to seeing what the coming week has in store for us. Until next time.


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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