Judicial Notice: March 27, 2021

Notable legal news from the week that was.

Lynn Goldsmith’s photo of Prince (left), from the court filings, and Andy Warhol’s “Orange Prince” (right), from Wikicommons (both via Law.com). Use of them here constitutes fair use in the context of news reporting; being able to see and compare the images is essential to understanding the Second Circuit’s opinion.

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.

Happy Passover (if applicable). My husband and son and I just finished our Seder with my parents-in-law. They’re within our “pandemic pod,” my husband and I already had Covid, my parents-in-law are vaccinated — and so am I, as of this past Monday. I had a strong reaction to the first dose of the Pfizer vaccine (often the case for folks who already had Covid), but for the second dose, I had nothing more than mild fatigue for a day or two. I’m grateful to the National Guard, nurses, and other healthcare workers at the Javits Center who have vaccinated more than 250,000 of us here in New York.

Now, on to the news.

Lawyer of the Week: Michael D. Jones.

Some lawyers in the news last week:

  • Rob Bonta, just selected by Governor Gavin Newson as California’s new Attorney General (the first Filipino-American to hold the office, which I’m pleased to see as a fellow Fil-Am; also, we overlapped in law school);

  • Damian Williams, Breon Peace, and Trini Ross, the likely nominees to serve as U.S. Attorneys for the Southern, Eastern, and Western Districts of New York (with Williams as the first Black lawyer to serve in the role);

  • Rita Glavin, who recently left Seward & Kissel to launch her own firm, and who is now representing embattled New York Governor Andrew M. Cuomo; and

  • Joshua L. Thomas, a Pennsylvania lawyer who recently got reprimanded by the Third Circuit for what Judge Thomas Hardiman referred to as a “copy-and-paste” appeal — ouch.

For Lawyer of the Week, congratulations to Michael D. Jones, the Kirkland & Ellis partner who’s on the brink of settling a pro bono case he has worked on for more than a dozen years. In 2009, Jones and co-counsel from the Lawyers Committee for Civil Rights Under Law filed a lawsuit challenging decades of inadequate funding and resources at Maryland’s four historically Black colleges and universities. The next 12 years of litigation included two trials, five mediations, a Fourth Circuit appeal, three legislative hearings, and more than 25,000 hours work by Kirkland lawyers.

But now the battle is nearing its end — on excellent terms for Jones and his clients. On Wednesday, Governor Larry Hogan (R-Md.) signed legislation that will provide $577 million over a decade to Maryland’s four HCBUs. With funding now in place, a final settlement is expected in short order.

As Jones explained to Jenna Greene of Reuters (who named him Pro Bono Hero of the Month), the case has special resonance for him as a graduate of a historically Black school himself (Dillard University in New Orleans). He described this litigation as “the longest, most difficult case of my career” — which is saying a lot, considering that Jones has been practicing for some 35 years. But the challenges Jones has faced in his career “pale in comparison to the obstacles my predecessors had to overcome” — including his great-grandfather, who was born an enslaved person and fought in the U.S. Colored Troops during the Civil War. Congrats again to Jones and his K&E colleagues on prevailing in this hard-fought battle for a noble cause.

Judge of the Week: Judge Paul Feinman.

On Thursday, several sitting federal judges from a wide range of backgrounds, including former Judge of the Week James Ho, testified before the House Judiciary Committee about the importance of diversity in the judiciary. As Judge Carlton Reeves (S.D. Miss.) put it, “When our courts are diverse, they better understand the complexity of the American experience embedded in every case that comes before them. When our courts are diverse, they reinforce public trust in our system of government.”

So it’s fitting and proper to recognize Judge Paul Feinman, the first openly gay man appointed to the New York State Court of Appeals, as Judge of the Week. On Tuesday, Judge Feinman retired from the bench, citing health issues. Chief Judge Janet DiFiore hailed him as “an exceptional judge and a magnificent human being who has made an extraordinary contribution to this institution during his tenure.” Judge Feinman dedicated 25 years to judicial service, first becoming a civil court judge in Lower Manhattan in 1996. He then rose through the New York state judiciary, culminating in his joining the New York Court of Appeals, the state’s highest court, in 2017.

Runner-up: another openly gay judge, Judge Patrick Bumatay of the Ninth Circuit. In his feisty dissental in East Bay Sanctuary Covenant v. Biden, a challenge by several public-interest groups to a Trump immigration policy, Judge Bumatay wrote this:

We are not “Platonic Guardians” of our nation’s public policies. See L. Hand, The Bill of Rights 73 (1958). As judges, we have no business standing athwart the choices of the political branches no matter how misguided we believe them to be.

Thumbs up on the Learned Hand citation. You can always count on those gay Filipinos to have a way with words!

Ruling of the Week: Andy Warhol Foundation v. Goldsmith.

The Supreme Court had a busy week:

  • it ruled against against Ford Motor, holding that courts in Minnesota and Montana had jurisdiction over products-liability lawsuits against the automaker because of what Justice Elena Kagan colorfully described as “a veritable truckload of contacts” with both states;

  • it ruled in favor of a New Mexico woman who was shot by police as she drove away from them, holding that the police committed a “seizure” under the Fourth Amendment (with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberal justices to form a 5-3 majority); and

  • it agreed to review the First Circuit’s decision overturning the death sentence of Dzhokhar Tsarnaev, who carried out the 2013 Boston Marathon bombings.

Interesting things happened in the lower courts as well. Important decisions on the Second Amendment came down from the Sixth Circuit and Ninth Circuit, the latter sitting en banc. Significant opinions about the First Amendment in the context of higher education came down from the Sixth Circuit and Eighth Circuit.

For my money, though, the most interesting ruling of the week came from the Second Circuit in Andy Warhol Foundation v. Goldsmith. What constitutes “fair use” in copyright is a critical question in the world of intellectual property, and this decision will become one of the touchstones in the space. The appeal was ably argued by two top litigators, Thomas Hentoff of Williams & Connolly and Luke Nikas of Quinn Emanuel, and because of its importance, multiple amici weighed in as well.

Judge Gerard Lynch wrote on behalf of the rather impressive panel, which included Judge Dennis Jacobs and Judge Richard Sullivan (and Judge Jacobs and Judge Sullivan also wrote concurrences of their own). It’s great to see three leading legal minds dig into the issue of fair use, an important and complex topic that I wish courts wrote about more frequently.

The case concerns a series of silkscreen prints and pencil illustrations by Andy Warhol, based on a 1981 photograph of the iconic musician Prince that was taken by Lynn Goldsmith. Goldsmith claimed that Warhol infringed on her copyright; the Warhol Foundation defended by arguing that Warhol’s works are “transformative” and as such fair use. The Second Circuit ruled for Goldsmith, delivering what the Hollywood Reporter described as a “huge victory” for Goldsmith and similarly situated creators with copyright claims. (You can look at Goldsmith’s photo versus Warhol’s prints, shown at the top of this post, and judge for yourself.)

Whether you agree or disagree with the Second Circuit, Andy Warhol Foundation v. Goldsmith is definitely an important new precedent on fair use (as reflected in all the media coverage it received, helpfully collected by Howard Bashman/How Appealing). Thanks to the court for giving guidance to lower courts — and to creators — on how to think about fair use in the twenty-first century.

Litigation of the Week: United States v. Moore-Bush.

One case that garnered headlines last week was Dominion Voting System’s defamation lawsuit against Fox. But it was widely expected — I asked Fox chief legal officer Viet Dinh about it in our recent interview, even before it was filed — and it’s similar to Dominion’s lawsuit against Sidney Powell, a prior Litigation of the Week. (In that lawsuit, Powell is getting criticism for defending it by arguing that “no reasonable person” would view her claims about Dominion as statements of fact.)

Libel lawsuits arising out of the 2020 presidential election are quite common by now. Less common: the First Circuit sitting en banc, which is what it did this past Tuesday in United States v. Moore-Bush. (Interestingly enough, the First Circuit is the smallest of the federal appellate courts, with just six authorized judgeships — so when it sits en banc or as a full court, it’s not that much bigger than a standard three-judge panel.)

Moore-Bush raises an interesting and important question: can the police install a secret video camera outside someone’s home and record everything that happens there for eight months, without getting a warrant? The original three-judge panel said yes, relying on precedent holding that you can’t have a reasonable expectation of privacy in something that happens outside your home and in public. But there’s an argument, advanced by the defendants, that more recent precedents like the Supreme Court’s ruling in Carpenter v. United States require a more nuanced and holistic analysis.

As technology makes surveillance easier and cheaper, and as surveillance becomes increasingly common and even ubiquitous, cases like Moore-Bush will become increasingly important. They will determine the contours of our right to privacy — or what remains of it — in the digital age.

Deal of the Week: Canadian Pacific and Kansas City Southern’s $29 billion merger.

Deals involving special purpose acquisition companies (SPACs) continue to proliferate. If you’re trying to get a handle on all the SPAC-ulation and figure out what it means to Biglaw, check out this excellent primer by Dan Packel for the American Lawyer (in which I’m quoted).

Not surprisingly, I’m experiencing SPAC fatigue, and I can’t give Deal of the Week to yet another SPAC transaction. So sorry, WeWORK, but no DOTW honors for you and your $7.9 billion, go-public merger with BowX Acquisition. (In case you’re wondering, the firms on the deal are Skadden Arps for WeWork, Cooley for BowX, Paul Hastings for the placement agents, and Morrison & Foerster for SoftBank Group.)

Instead, Deal of the Week goes to a public M&A deal with a big price tag: the $29 billion merger of Canadian Pacific and Kansas City Southern. The new company, Canadian Pacific Kansas City, will operate 20,000 miles of rail across the United States, Mexico, and Canada, boasting revenue of roughly $8.7 billion. And it’s expected to grow even more, as the three nations bounce back from the pandemic.

Who were the legal advisors? Canadian Pacific sought counsel from Sullivan & Cromwell, Bennett Jones, and David L. Meyer (who focuses on antitrust and regulatory work for railroads). Kansas City Southern received legal advice from Wachtell Lipton, Baker & Miller, Davies Ward Phillips & Vineberg, WilmerHale, and White & Case.

Congratulations to these firms on their involvement in this historic transaction — and also on what should be robust legal fees. Public M&A deals often generate nice paydays for law firms — or at least better paydays than private M&A deals, which tend to involve cost-conscious private equity firms that keep their legal fees down by using their leverage as repeat customers to extract bargains from Biglaw.

Law Firm of the Week: Gupta Wessler PLLC.

As the founder of Above the Law, I helped turn Biglaw bonus battles into a spectator sport. But I don’t find the latest bonus battle to be particularly interesting. It’s a sign of how well Biglaw is doing, as well as great news for hardworking associates, but there’s not much more to say beyond that. So no, I’m not giving Law Firm of the Week to Davis Polk — which previously won in January and then again earlier this month — just for setting the bonus scale that everyone else is now scrambling to follow.

Law Firm of the Week is often but not always a Biglaw firm; I’ve recognized boutiques in the past, including Clare Locke and Kaplan Hecker & Fink. And today I’m honoring a boutique again: Gupta Wessler PLLC, which accurately describes itself as “the nation’s premier appellate boutique for plaintiffs and public-interest clients.”

Gupta Wessler has around eight lawyers, but it had the kind of week that would make an 800-lawyer firm proud. The previously discussed, unanimous Supreme Court ruling in Ford Motor Co. v. Montana Eighth Judicial District Court was a Gupta Wessler win — and Justice Kagan’s opinion for five justices (three others concurred in the judgment) reflects several points raised by name partner Deepak Gupta in both the argument and the briefing.

That was on Thursday, but it wasn’t the firm’s first big win of the week. On Monday, the Supreme Court declined to hear a high-profile privacy case against Facebook. The case had some promising ingredients for a grant of certiorari — a cert petition by the estimable Jeffrey Fisher, a decision from the Ninth Circuit, by one of its more liberal members — but Gupta Wessler’s opposition to cert carried the day.

On Tuesday, Gupta Wessler prevailed in the Montana Supreme Court, on behalf of injured railroad workers arguing that their claims weren’t preempted by federal law. On Wednesday, the firm won the aforementioned case of Young v. Hawaii, in which the en banc Ninth Circuit held that the Second Amendment does not guarantee a right to openly carry firearms for self-defense — over a vigorous dissent by Judge Diarmuid F. O’Scannlain, who argued that the majority “reduces the right to ‘bear Arms’ to a mere inkblot.” Judge O’Scannlain has a strong track record of getting SCOTUS to reverse his colleagues, so this might not be the final chapter in Young. For now, though, it’s an impressive victory for Gupta Wessler — a small firm that scores big wins.

Lateral Moves of the Week: Desmarais opening in D.C., and Lehotsky Keller opening in Austin.

There was an embarrassment of riches in terms of lateral moves last week, including notable hires by DLA Piper (Geoffrey Levitt and Scott Fischer), Jenner & Block (Ann O’Leary), Foley Hoag (Stephen Younger), and the White House Counsel’s Office (a slew of impressive young lawyers, from top firms like Skadden, Wachtell, and Boies Schiller). But for Lateral Moves of the Week, I’m going with two elite boutiques opening up shop in two new cities: Desmarais LLP launching in Washington, D.C., and Lehotsky Keller LLP launching in Austin, Texas.

Desmarais, the 65-lawyer intellectual property boutique launched by superstar IP litigator and former Kirkland partner John Desmarais, is opening its D.C. office with three partners from Troutman Pepper: Goutam “Gooch” Patnaik, Tuhin Ganguly, and David Shaw. They’ll be joined by current Desmarais partner Justin Wilcox, relocating from New York to D.C. to manage the office. This will allow the firm to grow its practice before the International Trade Commission (ITC), an increasingly important and influential venue for IP litigation.

Lehotsky Keller, founded by former SCOTUS clerks Steve Lehotsky and Scott Keller, has a similarly impressive pedigree. It’s opening its Austin office with Jonathan Urick, another former SCOTUS clerk (and Chamber of Commerce alum like Lehotsky), and Todd Disher, coming from the Texas Attorney General’s Office. The firm has strong ties to Texas — Keller is the former Texas Solicitor General, and he wears cowboy boots without irony — so launching in the Lone Star State is logical.

Good luck to Desmarais and Lehotsky Keller. Spring is a time for new beginnings, and spring 2021 — with Covid deaths declining, vaccination expanding, and massive fiscal stimulus on the way — looks like an auspicious time for novel ventures.


Thanks for reading 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 share this post or subscribe to Original Jurisdiction using the buttons below.

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