Judicial Notice: January 23, 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’ve had an exciting week here at Original Jurisdiction. My most recent story, The Federalist Society And The Capitol Attack: What Is To Be Done?, wound up getting good traction. It was shared widely on social media, especially Twitter, and it even got a nice shout-out on national television from Chris Hayes. Thanks to all of you who read the piece and shared it with others.
You might be wondering: why am I seeing Judicial Notice on a Saturday? Isn’t it supposed to appear on Friday night? But as I’ve mentioned before, Original Jurisdiction is still a work in progress, and nothing is set in stone.
One thing I’ve been wondering is whether I should publish Judicial Notice on Friday or on Saturday. A second thing I’ve been wondering is whether I should publish Non Sequiturs, my collection of interesting legal links and recommended reads, separately from Judicial Notice, which can sometimes run a bit long.
So this week, I’m trying things differently. I’m publishing Judicial Notice on Saturday instead of Friday, and I’m publishing Non Sequiturs as a separate post later. Which approach do you prefer? Please take this two-question survey.
Now, on to the news.
Lawyers of the Week: Jeffrey A. Rosen, Steven A. Engel, and the other Justice Department lawyers who stood up to Donald Trump.
On Friday night, Katie Benner of the New York Times broke some crazy news. You should really just read her story, but here’s the abridged version.
Donald Trump wanted the Department of Justice to investigate and challenge the 2020 presidential election results. Jeffrey Rosen, the deputy attorney general who took over as acting attorney general after Bill Barr’s departure, and Richard Donoghue, the acting deputy attorney general, refused to go along.
A Pennsylvania politician introduced Trump to Jeffrey Clark, assistant attorney general for the DOJ’s environmental division, who was more amenable to Trump’s plans. Clark and Trump hatched a plot in which Trump would fire Jeff Rosen as acting attorney general and replace Rosen with Clark, so Clark could then use the machinery of the Justice Department to try and stop the certification of the Electoral College results in favor of Joe Biden.
Yes, I know. It’s cray cray.
Luckily, Trump’s judicial appointees weren’t the only folks willing to stand up to him post-election; his Justice Department appointees were too. A group of them — including Jeff Rosen, Richard Donoghue, assistant attorney general Steven Engel, and other senior leaders still at the department — all agreed that if Trump fired Rosen, they would resign en masse.
Thankfully, their threat to walk out worked, and a 2021 version of the Saturday Night Massacre was averted:
Mr. Engel advised Mr. Trump that he and the department’s remaining top officials would resign if he fired Mr. Rosen, leaving Mr. Clark alone at the department.
Mr. Trump seemed somewhat swayed by the idea that firing Mr. Rosen would trigger not only chaos at the Justice Department, but also congressional investigations and possibly recriminations from other Republicans and distract attention from his efforts to overturn the election results.
After nearly three hours [in a White House meeting with top DOJ and White House lawyers], Mr. Trump ultimately decided that Mr. Clark’s plan would fail, and he allowed Mr. Rosen to stay.
I’m sure we’ll all have our disagreements with the Biden Administration, but I’m so glad Donald Trump is no longer president. Aren’t you?
Judge of the Week: Judge Robert A. Katzmann.
Usually the Judge of the Week is a jurist who did something notable on the bench. But our latest Judge of the Week made news for, well, leaving the bench.
Effective Thursday, Judge Robert Katzmann took senior status on the U.S. Court of Appeals for the Second Circuit (and joined the faculty at NYU Law, where he has taught as an adjunct professor for many years, as a professor of practice). Judge Katzmann was appointed to the Second Circuit by President Bill Clinton back in 1999, and he served as its Chief Judge from 2013 to 2020.
Why is Judge Katzmann’s move noteworthy? Because it creates a vacancy that President Joe Biden will be able to fill on the Second Circuit, one of the country’s most powerful and prestigious courts.
After President Trump’s appointment of 54 circuit judges in four years, just shy of the 55 judges President Obama appointed in eight years, there are precious few vacancies on the federal appellate bench for President Biden to fill: just three, counting Katzmann’s former seat, or four, if Judge Merrick B. Garland of the D.C. Circuit is confirmed as attorney general. (The other vacancies, in case you’re wondering, are the late Judge Juan R. Torruella’s seat on the First Circuit, and Judge Joel M. Flaum’s seat on the Seventh Circuit.)
With Democrats controlling the Senate, expect additional Democratic appointees to head for the exits, at least if they want their successors to be appointed by a Democratic president. Scarred by the experience of Justice Ruth Bader Ginsburg being replaced by Justice Amy Coney Barrett, many Democrats are now urging Justice Stephen G. Breyer to retire, while their party controls the chamber.
(Interestingly enough, it appears that Justice Breyer has hired just one clerk for the next Term, and he usually hires out pretty far. But if you have any SCOTUS clerk hiring news not reflected in my most recent write-up, about Justice Breyer or any other member of the Court, please email me: davidlat@substack.com.)
[UPDATE (12:30 p.m.): Justice Breyer has actually hired at least two clerks for OT 2021, Elizabeth Deutsch and Joel Wacks — but it wouldn’t be hard for him to defer one of them to OT 2022.]
Congratulations to Judge Katzmann on his retirement, and thanks to him for more than two decades of active service. Will other judges follow his lead? The answer to that question will determine the direction of the federal judiciary for years to come.
Ruling of the Week: American Lung Association v. Environmental Protection Agency (EPA).
In American Lung Association v. EPA, the D.C. Circuit, in a per curiam opinion, vacated the 2019 Affordable Clean Energy Rule, the Trump Administration’s attempt to relax restrictions on greenhouse gas emissions from power plants. This gives the incoming Biden Administration greater leeway to impose tighter restrictions on emissions, instead of having its hands tied by the prior administration, in an effort to address climate change — which the D.C. Circuit, quoting the Supreme Court, referred to in the opening of its opinion as “the most pressing environmental challenge of our time.”
The case is complex, and the opinions — the per curiam opinion, joined by Judge Patricia Millett and Judge Nina Pillard, and the separate opinion of Judge Justin Walker, concurring in part and dissenting in part — total almost 200 pages. If you’re an administrative or environmental law junkie, knock yourself out; otherwise, just read a few of the news articles helpfully collected by Howard Bashman over at How Appealing (which, I must confess, is what I did).
First runner-up (and remember, Ruling of the Week just means a decision is important or noteworthy, not necessarily good): the Supreme Court’s unsigned decision in United States v. Higgs, which allowed the execution of Dustin John Higgs to proceed.
Justice Sonia Sotomayor, who has taken up Justice Thurgood Marshall’s mantle as the leading death-penalty dissenter, issued a dissent that, like her dissent in last week’s Ruling of the Week, got noticed:
Second runner-up: the Fifth Circuit’s decision in Gonzalez v. CoreCivic, Inc. In an opinion by Judge James Ho, no stranger to these pages, a divided panel of the Fifth Circuit ruled that a private prison company accused of forcing immigrant detainees to work for just $2 a day must face a lawsuit alleging it ran forced labor camps. Liberals might have expected a conservative, Trump-appointed jurist like Judge Ho to rule in favor of a private prison company — but according to Judge Ho, the law just wasn’t on CoreCivic’s side.
“Judges are not legislators,” Ho wrote. “Legislators write laws — judges faithfully interpret them.” And the law in question here, the Trafficking Victims Protection Act, does not contain any detainee-labor exemption, as CoreCivic tried to argue.
Here are two other odd aspects of the ruling. First, Judge Andrew Oldham, another noted conservative and Trump appointee, dissented (on a somewhat technical point). Second, Judge Ho responded to the dissent in a concurrence to his own majority opinion, instead of in the majority opinion itself. (Why didn’t the third member of the panel, Judge Jerry Smith — for whom Ho once clerked, by the way — join Ho’s analysis refuting Oldham, and spare Ho the awkwardness of having to concur with his own majority? I have no idea.)
Litigation of the Week: BP v. Mayor and City Council of Baltimore.
File this one under “boring but important.” On Tuesday, the Supreme Court heard argument in BP v. Mayor and City Council of Baltimore, presenting this issue:
Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
Sounds rather dry and technical, right? But as John Schwartz explains in the New York Times, the Court’s ruling could shape the fate of almost two dozen cases filed around the country that seek to hold fossil fuel companies responsible for the costs of climate change.
How will the Court come out? Hard to say. Both Kannon Shanmugam, the veteran SCOTUS advocate who argued on behalf of the oil and gas companies, and Victor Sher, the prominent environmental litigator who argued on behalf of Baltimore, faced tough questioning (as did Brinton Lucas of the Solicitor General’s Office, which sided with the companies). So this case is one to watch.
Deal of the Week: Longford Capital raising $435 million for its third fund.
A major trend transforming the worlds of both litigation and finance is the rise of litigation funding. In a nod to the importance of litigation finance, I’m picking Longford Capital’s recent raise of $435 million for Deal of the Week, which reflects the reality that litigation finance has become big business.
Longford had other news as well this week: Bill Strong, the former Morgan Stanley executive who helped Longford grow to $1 billion in assets under management, just resigned as chair of the firm. He’s stepping away from the day to day, but he will remain involved with Longford as a member of the firm’s general partner entities and a limited partner in its three funds.
Law Firm of the Week: Kirkland & Ellis.
Congratulations to Kirkland, the Biglaw firm that benefited the most from last year’s bankruptcy boom. According to an analysis by Roy Strom and Bloomberg Law, based on a database maintained by UCLA School of Law and Professor Lynn LoPucki, there were 57 bankruptcies filed by publicly traded companies with more than $330 million in assets last year — and Kirkland represented 23 of them, or 40 percent. It earned $200 million in fees for representing these companies prior to their bankruptcy filings, which means that K&E will earn millions more representing them during and after their actual Chapter 11 cases.
And Kirkland was in the news last week for lots of other reasons as well. The cast of characters in the tale of how Trump tried to weaponize the DOJ in his fight against the election results? Almost all the major players — Jeff Clark, Jeff Rosen, and Steve Engel, plus White House lawyers Pat Cipollone and Pat Philbin, who also opposed the Trump/Clark plot — are K&E alums (and no, I don’t know why almost all of them are named Jeff or Pat).
On the transactional side in the past week, Kirkland advised Wrike, a leader in the SaaS collaborative work management space, on its $2.25 billion sale to Citrix Systems, and the firm advised Naver Corporation on its $600 million acquisition of Wattpad, a global multi-platform entertainment company. K&E also advised Pontem Corporation and Authentic Equity Acquisition Corp., two special purpose acquisition companies (SPACs), on their IPOs, which raised $690 million and $230 million, respectively. On the lateral front, Kirkland hired Dr. Mengyu Lu, a Chambers-ranked capital markets partner, away from Sidley Austin in Hong Kong. The firm had a very good week.
In a boom or in a bust, count on Kirkland to be killing it.
Lateral Moves of the Week: Paul Weiss expanding its northern California team.
There were a ridiculous number of lateral moves announced last week. In a slower news week, any one of them could have been the Lateral Move of the Week.
The lateral market truly feels like a game of musical chairs right now. For example, Latham & Watkins hired Gianluca Bacchiocchi and Guido Liniado, Latin America-focused deal lawyers, away from Clifford Chance, which in turn hired Renée Latour, an international trade regulatory and national security lawyer, away from Greenberg Traurig.
And the revolving door between Biglaw and government continues to spin, in both directions. In terms of lawyers leaving government, Craig Carpenito, former U.S. Attorney for New Jersey, returned to Biglaw and joined King & Spalding in New York, and Raquel Fox, former director of the SEC’s Office of International Affairs, joined Skadden Arps in D.C.
As for returns to government, Elizabeth Prelogar — a former member of special counsel Robert Mueller’s team, a rising star of the Supreme Court bar, and a former law clerk to not one but two SCOTUS members (Justice Ruth Bader Ginsburg and Justice Elena Kagan) — left Cooley for another tour of duty at the Office of the Solicitor General. Prelogar will serve as principal deputy solicitor general (as well as acting SG for now, until the Senate confirms a new SG).
So it was tough to pick a winner this week. But since that’s my job, I’m going with Paul Weiss hiring four heavy hitters for its new northern California office: Melinda Haag, Walter Brown, and Randy Luskey, litigation partners coming over from Orrick, and Jeremy Veit, a corporate partner coming over from Kirkland.
Melinda Haag, former global chair of litigation at Orrick and former U.S. attorney for the Northern District of California, is particularly prominent. But Walter Brown, who chaired the white-collar practice at Orrick, and Randy Luskey, who has defended clients in health care fraud matters and complex class actions, are big names too. As for Veit, he was a share (equity) partner in Kirkland’s market-leading private equity practice. Nuff said.
Of course, this is just how the lateral market works. Kirkland can hardly complain, having been one of the biggest buyers of lateral talent for years now. And Orrick, while not as aggressive as Kirkland, has done its fair share of lateral hiring too. In fact, last week’s highlighted lateral hiring was Orrick picking up three young corporate partners from Kirkland, Cooley, and Cravath.
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