Judicial Notice: January 15, 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.

Happy Friday. We just closed out another eventful week, the last full week of the presidency of Donald J. Trump, so let’s dive right in.

Lawyer of the Week: Mike Pence.

Our latest Lawyer of the Week is not a popular person; Vice President Pence has plenty of people who loathe him on both the left and the right. But Pence — a lawyer by training, who graduated from Indiana University’s Robert H. McKinney School of Law in 1986 — has been an incredibly important person in the past few weeks. And importance, newsworthiness, or buzz generation is what "Lawyer of the Week” is all about, which is why recent “winners” have included L. Lin Wood and Jenna Ellis. In this sense, the award is like Time’s Person of the Year, which has been “won” over the years by such figures as Adolf Hitler and Joseph Stalin.

Pence’s certification of President-elect Joe Biden’s victory in the Electoral College paved the way for the (rather belated) presidential transition. Pence’s refusal to invoke the 25th Amendment paved the way for Trump’s second impeachment. The decisions of Mike Pence are, for better or worse, controlling the direction of the country right now.

This past week, we learned about the incredible pressure brought to bear upon Pence by Trump and his toadies, as described in this fascinating New York Times article by Peter Baker, Maggie Haberman, and Annie Karni. As Trump reportedly told Pence in urging him to overturn the election results, “You can either go down in history as a patriot, or you can go down in history as a pussy.” John Eastman, the (now former) Chapman University law professor, insisted to Pence that he did have the authority to act as Trump asked. But Pence, after four years of catering to Trump’s every whim, did the right thing in this particular situation.

Interestingly enough, Pence was aided in this by J. Michael Luttig, the prominent conservative lawyer and former Fourth Circuit judge, who I will declare the runner-up for Lawyer of the Week. Per the Times:

The next morning [after Pence’s meeting with Trump and Eastman], hours before the vote, Richard Cullen, Mr. Pence’s personal lawyer, called J. Michael Luttig, a former appeals court judge revered by conservatives — and for whom Mr. Eastman had once clerked. Mr. Luttig agreed to quickly write up his opinion that the vice president had no power to change the outcome, then posted it on Twitter.

Within minutes, Mr. Pence’s staff incorporated Mr. Luttig’s reasoning, citing him by name, into a letter announcing the vice president’s decision not to try to block electors. Reached on Tuesday, Mr. Luttig said it was “the highest honor of my life” to play a role in preserving the Constitution.

Now, Pence’s critics on the left have assailed him — justifiably, in my opinion — for not standing up to Trump at any point over the past four years. Or standing up to Trump between November 3 and January 5, in a way that could have averted the events of January 6, for which Pence bears some of the blame. But Pence did act correctly in the very end, with major consequences — and being consequential is what Lawyer of the Week is all about.

[UPDATE (1/16/2021), 11:15 a.m.: The above discussion of Lawyer of the Week was significantly revised after my Twitter exchange with Jed Shugerman, who made some fair points.]

Judge of the Week: Judge Donald M. Middlebrooks.

Here’s the abridged version (since the issue is slightly complicated). Back when grand juries were temporarily suspended because of Covid-19, federal prosecutors in the Southern District of Florida tried to exploit a dismissal rule in order to get around the imminent expiration of the statute of limitations for a crime. They charged the defendant by information three days before the expiration of the five-year statute of limitations, then immediately sought dismissal without prejudice, so they could refile the charging document at a more convenient time — albeit one after the expiration of the statute.

Judge Donald Middlebrooks was having none of it. Dismissing the charges with prejudice, he issued an eloquent statement about fidelity to the constitution and the rule of law:

I appreciate the historical moment we are living through, which gave rise to the temporary suspension of grand juries, which prevented the government from obtaining indictments in this district from approximately March 26, 2020 to November 17, 2020. But our legal system has experienced public emergencies before, and it will experience them again.

Allowing the applicability of our constitutional norms to ebb and flow with the times is not becoming of a democracy under the rule of law. Indeed, if our laws are to carry any force, they must stand despite the trials and tribulations of society.

Congratulations to Miami criminal defense lawyers David Oscar Markus and Lauren Doyle, whose client benefited from Judge Middlebrooks’s decision.

Ruling of the Week: Food and Drug Administration v. American College of Obstetricians and Gynecologists.

The Supreme Court of the United States — remember them? Given all the recent drama involving the executive and legislative branches, the least dangerous branch of government has also become the most overlooked.

But SCOTUS still has plenty of power. And it flexed that power on Tuesday in FDA v. v. American College of Obstetricians and Gynecologists, issuing an order granting the FDA’s request to reinstate a federal requirement that an abortion-inducing pill must be picked up in person from a healthcare provider. The three liberal justices would have denied the request; Justice Sonia Sotomayor wrote a lengthy and blistering dissent, which Justice Elena Kagan joined (but Justice Stephen Stephen G. Breyer did not, for some unknown reason).

The ruling itself might not have much practical effect, since there’s a good chance the Biden Administration will do an about-face and waive the requirement. But together with last week’s Ruling of the Week, the Eighth Circuit’s decision in Little Rock Family Planning Services v. Rutledge, it’s a harbinger of changes that are likely to come to the Supreme Court’s abortion jurisprudence, now that conservatives hold a 6-3 majority at the Court.

Runner-up: the Third Circuit’s ruling in United States v. Safehouse, in which the panel majority, in an opinion by Judge Stephanos Bibas, blocked the opening of the nation's first supervised drug-injection site in Philadelphia because it would violate federal drug laws — specifically, 21 USC § 856, which makes it a crime to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.”

Judge Bibas is, for my money, one of the clearest and most engaging writers on the federal bench today. He begins his opinions with concise and cogent openings, from which these paragraphs come:

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safe injection site will break the law. Although Congress passed § 856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference….

Safehouse admirably seeks to save lives. And many Americans think that federal drug laws should move away from law enforcement toward harm reduction. But courts are not arbiters of policy. We must apply the laws as written.

Judge Jane Roth dissented, arguing that Safehouse’s purpose was not drug use, but drug treatment. It’s an interesting issue of statutory interpretation; check out the dueling opinions and see where you come down.

Litigation of the Week: Parler LLC v. Amazon Web Services, Inc.

Twitter’s decision to boot Donald Trump from its platform was accompanied by Amazon’s decision to boot Parler from its hosting services. Parler — a Twitter alternative that has become a darling of the right, which some speculated might become the new social-media home for Trump — then sued Amazon in federal court in Seattle (W.D. Wash.), filing a 19-page complaint alleging antitrust violations, breach of contract, and tortious interference with contract.

This high-profile lawsuit sits at the intersection of many interesting issues, including the power of Big Tech, freedom of speech in the digital age, and the growing political polarization of our country. Judge Barbara Rothstein did not issue the temporary restraining order that Parler had requested, but said she will rule on issuing a preliminary injunction “as quickly as possible.”

How will Judge Rothstein rule? On the Sherman Act claim, the sexiest of the three, Alison Frankel of Reuters thinks Parler faces an uphill battle in trying to allege a “conspiracy” based on the actions of a single company, with no apparent co-conspirators: “Amazon’s apparently unilateral decision to boot Parler does not constitute an antitrust conspiracy. Without additional evidence, Parler’s Sherman Act claim is not going to get the site reinstated through Amazon web services.”

Deal of the Week: Silver Lake Partners raising $20 billion for a new fund.

Yes, I realize I have an M&A bias when it comes to picking Deal of the Week. But this just reflects the bias toward M&A in Biglaw transactional practices, where M&A work sits at the top of the pecking order in terms of prestige and profitability.

But M&A deals wouldn’t be possible without all the lawyers who rustle up all the money needed to consummate these deals. So this week I’m going to honor a money-raising transaction.

Congrats to Simpson Thacher & Bartlett, which advised Silver Lake Partners on raising a whopping $20 billion for a new technology-focused buyout fund. Silver Lake Partners VI (“SLP VI”), which on Wednesday announced reaching its hard cap for limited-partner capital commitments, is believed to be the largest-ever technology-focused private equity fund. The STB team, twenty lawyers strong, was led by corporate partner Jonathan Karen, who represented Silver Lake in 2017 when it established Silver Lake Partners V, which at $15 billion set the previous record for the largest tech-focused buyout fund.

Runner-up: the $8.7 billion go-public merger of Social Finance Inc. with a special purpose acquisition company (SPAC) founded by Facebook alum Chamath Palihapitiya. Goodwin Procter and Wachtell Lipton advised SoFi, and Skadden Arps advised Palihapitiya’s entity. The SPAC hotness of 2020 shows no signs of letting up.

Law Firm of the Week: Latham & Watkins.

Last week, I honored Davis Polk & Wardwell as Law Firm of the Week, after DPW topped Refinitiv’s 2020 M&A league tables. But DPW’s $448 billion in deals included its work advising financial advisers, which isn’t as interesting (or as lucrative) as advising principals.

Who topped Bloomberg’s 2020 M&A league tables, based on advising principals? Latham & Watkins took top honors, advising on 552 deals worth a whopping $358.8 billion — edging out Wachtell Lipton, which advised on 69 deals worth $309.8 billion. (This means that Wachtell’s average deal last year was worth $4.5 billion, compared to $650 million for Latham; WLRK works on lots of big-ticket public M&A, while Latham works on a higher number of smaller private equity deals.)

Last week brought other good news for Latham as well. The American Lawyer honored Latham as Litigation Department of the Year - California, and two other Latham litigators, Jamie Wine and Amanda Reeves, were finalists for Litigator of the Year and Best Mentor – Law Firm, respectively. (I interviewed Jamie Wine for my deep drive into Latham’s litigation practice back in 2019.)

Far from resting on these laurels, Latham continues to work hard, last week announcing a nice pro bono win for minority voting rights and its involvement in a slew of transactions. The most noteworthy was advising Proterra Inc. in its $1.6 billion go-public merger with ArcLight Clean Transition Corp. — yes, you guessed it, another SPAC.

Lateral Moves of the Week: Orrick’s hiring hat trick.

Last week, Orrick Herrington & Sutcliffe announced its hiring of a trio of corporate partners, who came from three of Biglaw’s biggest names: Leah Recht from Kirkland in San Francisco, Edward Dyson from Cooley in London, and Mark Mushkin from Cravath Swaine & Moore.

Here’s what I like about these moves, which Orrick accurately described as the hiring of “Rising Stars”: they involve a top firm investing in young talent, taking on — as partners — lawyers who might have hit ceilings at their prior firms. Recht was a non-share partner at Kirkland, Dyson was an associate at Cooley, and Mushkin was a senior attorney at Cravath. It’s nice to see Orrick giving them a chance to build their own practices, as partners, on its platform.

Non Sequiturs

  • This just in: two leading litigators, Barry Berke of Kramer Levin Naftalis & Frankel and Joshua Matz of Kaplan Hecker & Fink, will serve as chief impeachment and impeachment counsel, respectively, for Trump’s second impeachment. Berke and Matz previously worked together on Trump’s first impeachment. (To be technical, Matz has resigned from the firm, so he is formerly of KHF — his bio is already gone from the firm website, and he’s already updated his LinkedIn page — but don’t be shocked if he returns to the firm afterwards. As for Barry Berke, he’s still on the Kramer Levin website, but his bio identifies him as “currently on leave of absence.”)

  • Also on the impeachment team: Delegate Stacey Plaskett of the Virgin Islands, selected as an impeachment manager by Speaker Nancy Pelosi. As the representative of a U.S. territory, Plaskett was unable to vote for Trump’s impeachment in the House — but now she can make the case against him, before the Senate. When she (unsuccessfully) argued for a role as impeachment manager the first time around, in 2019, Plaskett made this observation: “The party says that black women are the base and our primary support, and there are five black women in the House who are attorneys and only two of us are former prosecutors.” It’s nice to see her on the team today.

  • Elsewhere in high-profile outside appointments, Yale law professor Abbe Gluck, a top expert in health law, has been named special counsel to Biden’s Covid-19 team.

  • Meanwhile, after a 17-year tenure, Ed Whelan is stepping down as president of the Ethics and Public Policy Center (EPPC), to be replaced by Ryan T. Anderson.

  • Congratulations to Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, on being named Attorney of the Year, and congrats to all the other winners of the 2020 American Lawyer Industry Awards.

  • Here are five concrete steps that law firms can take to advance diversity, equity, and inclusion, courtesy of Yusuf Zakir, Chief Diversity and Inclusion Officer at Davis Wright Tremaine.

  • In the wake of the siege of the Capitol, Biglaw is taking a big pause on political contributions.

  • Well, this is embarrassing: Aaron Mostofsky, hit with federal criminal charges for his alleged participation in the Capitol riots, is the son of a New York state court judge, Judge Steven (Shlomo) Mostofsky of New York Supreme Court (Kings County, aka Brooklyn).

  • Along similar lines, Linda Greenhouse wonders: what does Chief Justice John Roberts think of his former law clerk, Senator Josh Hawley (R-Mo.), after the Capitol attack?

  • In happier SCOTUS news about the Chief Justice, he has already received both doses of the Covid-19 vaccine, and his colleagues “are in the process of getting vaccinated,” according to longtime Court spokesperson Kathy Arberg.

  • Could the Donald’s “deplatforming” lead to litigation against Twitter? Here are some thoughts from Bill Murphy Jr.

  • Thomas Girardi, part of the legal team that inspired Erin Brockovich, is now starring in a legal drama of his own — and the allegations against him are ugly, as described in this engrossing article by Matthew Goldstein of the Times.

  • In memoriam: Peter Huber, founding partner of Kellogg Huber (now Kellogg Hansen); Jack Nusbaum, former chair of Willkie Farr & Gallagher; and Deborah Rhode, longtime professor at Stanford Law School, and the nation’s most-cited scholar in legal ethics. Requiescat in pace.

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.