Judicial Notice: March 20, 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.
What did I do last week? On Wednesday, I published an interesting interview of Viet Dinh, chief legal officer at Fox Corporation, who is one of the most powerful in-house lawyers — or lawyers, period — in the United States. On Thursday, I returned to NYU Langone, where a year ago I was hospitalized with Covid-19, to donate blood for research looking at whether patients who already had Covid can get just one dose of mRNA vaccines like those of Pfizer and Moderna, instead of the standard two doses. If patients recovered from Covid-19 can get by with just one shot, millions of vaccine doses could be freed up for others.
Now, on to the news.
Lawyer of the Week: Katherine Tai.
A number of lawyers made headlines last week:
Former California attorney general Xavier Becerra, who was confirmed by a 50-49 vote to lead the Department of Health and Human Services;
Associate attorney general nominee Vanita Gupta, who pledged to sell off her $14.5 million stake in a chemicals company led by her father (a stake that’s just a fraction of her total fortune, estimated at $42-$187 million); and
Senator Sheldon Whitehouse (D-R.I.), who called upon Attorney General Merrick Garland to investigate what Whitehouse refers to as the “perhaps fake FBI investigation” into Justice Brett Kavanaugh.
The Wall Street Journal editorial board doesn’t love Whitehouse’s move, but that’s no surprise. But even among people who believe an investigation of the investigation is warranted, Asha Rangappa — who is not only a leading legal commentator, but also a former FBI agent herself — points out that Whitehouse’s call may be misdirected. [UPDATE (3/21/2021, 6:30 a.m.): The preceding paragraph referencing Rangappa’s piece has been revised to clarify my view on it.]
Law students of the week: the eight Black law students, seven of them women, selected as editors-in-chief of their schools’ top law reviews; and Agnes Lee, the new editor in chief of the Georgetown Law Journal, who is believed to be the first openly undocumented immigrant to be selected as editor in chief of the flagship law journal at a top U.S. law school. Congratulations.
But for Lawyer of the Week, I’m going with Katherine Tai, unanimously confirmed as President Joe Biden’s U.S. trade representative. The vote was 98-0, and the two absent senators both supported her nomination, so Tai was the first member of the Biden Cabinet to be confirmed without opposition. It’s a testament to her superb credentials, which include degrees from Yale and Harvard Law, two federal clerkships, stints at several leading law firms (including Sidley Austin and Baker McKenzie), and experience as a trade lawyer in both the executive branch (the Office of the U.S. Trade Representative) and on Capitol Hill (the House Ways & Means Committee).
The daughter of Taiwanese immigrants, Tai will be the first Asian American, Taiwanese American, and woman of color to serve as U.S. trade representative. She is also, after the withdrawal of Neera Tanden’s OMB nomination, just one of two Asian Americans in the Biden Cabinet (the other being Vice President Kamala Harris).
Last week, eight people, including six Asian American women, were killed by a 21-year-old gunman — so it was in many ways a horrific week for those of us in the Asian American community, Asian American women in particular. But it might also be, as Vivia Chen suggests in her inaugural column for Bloomberg Law, a tipping point for Asian American lawyers, as well as a chance to open up a candid discussion about the hatred that we often face. And amidst the tragedy, we shouldn’t overlook the fact that an Asian American woman made history as well. Congratulations to Katherine Tai on her confirmation, and best of luck to her in her new role.
Judge of the Week: Justice Stephen G. Breyer.
Justice Breyer, all eyes are on you — and those big bronze doors at One First Street.
The week began and ended with op-eds in two of the nation’s top newspapers calling upon Justice Stephen Breyer, 82, to retire from the Supreme Court. On Monday, in a New York Times op-ed, Professor Paul Campos called upon Justice Breyer to step down from SCOTUS — ASAP, in case the Democrats lose their Senate majority because of an unforeseen event like a death or illness. Earlier today, Paul Waldman issued a similar call for Justice Breyer to retire, in the pages of the Washington Post (via Howard Bashman).
There are some dissenters. Professor Noah Feldman, for example, wrote a piece for Bloomberg Opinion essentially telling everyone to lay off poor Justice Breyer: “Every column or television comment — the more prominent, the worse — traps Breyer into having to stay put so as not to appear to be acting as a partisan.”
Speaking of the Supreme Court, SCOTUSblog is running a fun March Madness tournament to pick the greatest Supreme Court justice of all time. So head over there and cast your vote. (My take: Justice Robert Jackson, who SCOTUSblog acknowledges came very close, definitely should have been included; I can think of at least five justices who did make the tourney whom I’d jettison in his favor.)
And speaking of vacancies, in response to my question from two weeks ago about who will get the newly vacant Vermont seat on the Second Circuit, the consensus seems to be Justice Beth Robinson of the Vermont Supreme Court. As one reader wrote:
Justice Robinson played an iconic role in the marriage equality battle in Vermont, from litigating and arguing the Baker case to then leading the battle for a decade in the state legislature to go from civil unions to marriage. She could also be first lesbian on any federal appellate court, depending on if/when Judges Alison Nathan or Pamela Chen get nominated to the Second Circuit.
If Justice Robinson does get nominated — and President Joe Biden’s first slate of judicial nominees is expected as early as next week — you heard it here first.
Runner-up: Judge Lawrence VanDyke, a recent Trump appointee to the Ninth Circuit, who DGAF. See the two fiery dissents he filed on the same day, in an employment discrimination case and an immigration case.
Many of President Donald Trump’s appointees are strong, stylish writers, and I’d count Judge VanDyke among them. I have just one small suggestion, Your Honor: maybe cut back a bit on your use of italics for emphasis. When you emphasize everything, you emphasize nothing.
Ruling of the Week: Tah v. Global Witness Publishing, Inc.
There were no rulings from the Supreme Court last week. Interestingly enough, though, some of the justices met in person for their Friday conference, for the first time in a year. (An unspecified number of justices participated remotely, but it sounds like most of them made their way to One First Street.)
Since SCOTUS didn’t give us anything last week, let’s about a mile to the west to the D.C. Circuit for our Ruling of the Week. Here’s a concise summary of Tah v. Global Witness Publishing, Inc., from the invaluable Short Circuit:
Two former Liberian government officials sue a human-rights organization for defaming them, saying that the group suggested they took bribes when they are, in fact, totally righteous dudes. D.C. Circuit: This lawsuit is barred by the First Amendment. Dissent: Shouldn’t it matter that there’s no evidence anyone was bribed? Also, by the by, New York Times v. Sullivan is “a threat to American Democracy.” Also, the media is biased against Republicans, and Candy Crowley was a bad debate moderator in 2012.
The opinion — or really, to be more accurate, the dissent — generated tons of online commentary, collected at the always essential How Appealing.
Why so much buzz? The dissent’s author, Judge Laurence H. Silberman, is an iconic figure in legal conservative circles, a mentor to everyone from Justice Clarence Thomas to Justice Amy Coney Barrett to Fox Corporation chief legal officer Viet Dinh. And in his dissent, Judge Silberman laid into the Supreme Court’s famous First Amendment decision in New York Times. v. Sullivan (cleaned up):
After observing my colleagues’ efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.
Gee, Judge Silberman, tell us how you really feel!
Whether or not you agree with Judge Silberman — I think he makes some fair points, but his over-the-top rhetoric ultimately does them a disservice — you should read his dissent, since tout le monde is talking about it.
And while we’re discussing the D.C. Circuit, you know what else everyone is talking about? The court’s hatred for Garamond. Next time you file a brief in the D.C. Circuit, use any font but Garamond (well, except for Comic Sans).
Litigation of the Week: In re Purdue Pharma.
Yes, I know, I’ve featured opioid-related cases as Litigations of the Week on two prior occasions. But considering the scale and scope of the opioid epidemic, which has claimed hundreds of thousands of lives, this sadly shouldn’t surprise.
Shortly before midnight on Monday, the most infamous manufacturer of prescription opioids, Purdue Pharma, filed its bankruptcy restructuring plan. In a nutshell, the plan calls upon the billionaire Sackler family to give up its control of the company — which the Sacklers must surely be happy to do (they’ve already sucked their billions out of it) — and turn Purdue into a company whose revenue would be devoted to addressing the opioid epidemic that its flagship painkiller, OxyContin, helped spawn.
The concept makes sense, but the devil is in the details, and confirmation of the plan is expected to be contentious. This should mean lots of work for the law firms involved in the case, which include Davis Polk, counsel to Purdue Pharma, and Akin Gump and Cole Schotz, counsel to the committee of unsecured creditors.
Deal of the Week: eToro’s $10.4 billion go-public SPAC merger.
Law students and young lawyers, I have one word to you, just one word: fintech.
Whether it’s the future or just a fad, financial technology aka “fintech” is all the rage among transactional types these days. So for Deal of the Week, I’m recognizing the go-public merger of eToro Group Ltd., a social investment platform, with FinTech Acquisition Corp. V — which is, as you can tell from its rather banal name, a SPAC.
I’m not familiar with eToro, but it sounds like a Robinhood for the rest of the world, with over 20 million registered users in over 100 countries. It was advised by Skadden Arps and the Meitar Law Offices (out of Israel, where eToro was founded). The SPAC was advised by Morgan, Lewis & Bockius and Gornitzky & Co., another Israeli firm.
Law Firm of the Week: Orrick, Herrington & Sutcliffe.
The obvious pick would be Willkie Farr & Gallagher, which on Friday announced “special bonuses” that follow the scale of special bonuses established last year by Davis Polk (from $7,500 to $40,000, depending on seniority). Willkie also announced that these spring bonuses will be without prejudice to the usual year-end bonuses, which is great.
Not so great: Willkie is paying out these bonuses in two installments, the first on June 30, more than three months away, and the second on September 30, more than six months away. This strikes me as a not-so-subtle way of pressuring Willkie associates not to leave the firm during a super-hot market for lateral talent. I wonder whether other firms will announce similar special bonuses, but pay them out promptly.
Also, given the busy deal markets, it was only a matter of time before some Biglaw firm announced special or spring bonuses. So there’s nothing particularly novel about Willkie’s move (except for the unwelcome holdback).
Instead, I’m giving Law Firm of the Week honors to Orrick, which just announced a series of new initiatives to promote mental health and wellness and to address the challenges of working from home. The most notable is “Unplug Time,” 40 hours of bonus-eligible time for both lawyers and staff to stop working and to get off email, phone calls, and Zoom. The “unplugging” strikes me as the key element; for many lawyers, “vacation” means taking half a day instead of half an hour to respond to an email or call. Being “unplugged” might actually give Orrick lawyers and staff the chance to truly get away from it all — which is more important than ever in a time when there’s no longer any boundary between the office and the home.
Also notable: Orrick’s “Focused Fridays” program, which discourages scheduling non-time-sensitive internal meetings on Friday afternoons. This strikes me as a great idea as well. It will give lawyers and staff the chance to work on projects that require a lot of focus, such as writing a brief, without interruption. It will additionally give Orrick employees the chance to catch up on work ahead of the weekend so that they might be able to, you know, actually enjoy the weekend.
I’m not surprised to see this coming from Orrick, which has a history of innovation when it comes to talent management. In 2015, it announced a best-in-Biglaw parental leave policy that many firms quickly emulated (or tried to emulate). Will other firms adopt “Unplug Time” or “Focused Fridays” — which benefit not just associates, but also staff and partners? Here’s hoping.
Lateral Move of the Week: Crowell & Moring’s absorption of Kibbe & Orbe.
Crowell & Moring is acquiring the financial services boutique of Kibbe & Orbe. As a result of the deal, some 24 lawyers from Kibbe & Orbe will join the offices of Crowell in New York, London, and Washington, D.C.
The news was presaged by developments previously mentioned in these pages. Back in December, the Lateral Move of the Week was Perkins Coie’s hiring of 17 litigators away from what was then Richards Kibbe & Orbe. The remaining lawyers, focused on transactional and financial regulatory work, became Kibbe & Orbe — but at the time, many of us wondered how long that would last.
It’s hard out here for a boutique — well, at least a transactional boutique. Litigation boutiques can survive (and even thrive) based on one-off representations, but with deal-focused firms, clients constantly seek a wider range of services — services that Biglaw behemoths excel at providing, all under one brand.
So I wasn’t surprised to see Kibbe & Orbe get absorbed, and I wasn’t surprised to see Crowell doing it. Last month, Crowell won Law Firm of the Week honors based in part on its incredible financial results from 2020. I noted at the time that “spurred by these strong results, Crowell plans to expand in 2021, possibly through picking up partner groups or acquiring boutiques” — boutiques like Kibbe & Orbe.
Congratulations to Crowell & Moring and Kibbe & Orbe on their combination. Whether with law firms or with people, we’ve seen many fewer unions during the pandemic — so maybe this marriage is a sign that we’re turning the corner, with more good news to come.
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