Author: TSA Press

Pour one out for the Ma ‘n’ Pa Bigot, who just got their trans-bashing rear ends handed to them by the Ninth Circuit. Sorry, Snowflakes, there’s no Fourteenth Amendment privacy right for the Lil’ Bigots to ban transgender students from the locker room. Trans kids just going to school like normal kids — which they are — is neither sexual harassment, nor an infringement on the free exercise of religion. And if Princess and Junior Bigot are so wigged out that they refuse to use the restroom all day, well, that’s on them.

If you’ve ever attended a PTA meeting, you will recognize the plaintiffs in Parents for Privacy v. Barr. They’re the ones muttering loudly about the old days, before everyone got so darn PC and started demanding nut-free snacks. If you’ve ever attended a PTA meeting, you already hated these people before you found out that they sued over a Student Safety Plan because it might one day protect a transgender girl, since “several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”

As for the actual transgender boy going to school in the district, the “harm” suffered by other boys in the locker room was somewhat less than compelling.

Although privacy stalls were available in the bathrooms, these were insufficient to alleviate the cisgender boys’ fear of exposing themselves to Student A, because the stalls had gaps through which “partially unclothed bodies” could “inadvertently” be seen. And an available single-user bathroom was often inconvenient or was considered inferior because it lacked a shower.

As a parent of three teenagers myself, I can promise you that the last time any American kid showered after gym class was in 1988. They have about eight minutes to change and get back to math class, and anyway they’re perfectly happy to spray themselves with Axe and wallow in their own filth for hours on end.

But the Bigots had grievance theater to act out, and they weren’t wavering from the script. After they failed to bully the school out of adopting a plan to keep all students safe from Junior Bigot and his pals, the parents teamed up with anti-trans and anti-sex-ed groups to sue the school district, the state of Oregon, and the federal Department of Education alleging all manner of violations of their state and constitutional rights.

Plaintiffs sought an injunction forcing the district to require all students to use the bathroom corresponding to their gender as assigned at birth. But they were stymied by the district court, which dismissed the case for failure to state a legally cognizable claim. And they didn’t have any better luck yesterday at the Ninth Circuit. Womp womp!

It’s a fun opinion that’s definitely worth a read. But here’s the holding:

We agree with the district court and hold that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth. We also hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender. We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it. Finally, we hold that the school district’s policy is rationally related to a legitimate state purpose, and does not infringe Plaintiffs’ First Amendment free exercise rights because it does not target religious conduct.

God bless Judge Wallace Tashima, who knows a little something about separate but unequal.

Parents for Privacy v. Barr [No. 18-35708 (9th Cir. 2020)]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Earlier this week, the Backstreet Boys performed on Good Morning America, and in honor of the upcoming Valentine’s Day holiday, they helped a young man pop the question to his girlfriend on live television as they sang “I’ll Never Break Your Heart.” The moment was sweet as could be, but there was just one problem: the couple had already been engaged.

Meet Priscilla Consolo, an associate at Kirkland & Ellis, who sources say skipped work to get engaged (again) to her fiancé. Here’s their super-cute second proposal:

Consolo first got engaged to her fiancé, Adam Diamond, back in 2017. After word got out that Consolo had already been engaged, she allegedly told people that she and Diamond had broken up in May 2019. But sources claim that back in November, Consolo told them about having just ordered her save-the-date cards. Her wedding website was taken down recently, but Google saved the date:

We’re told that Diamond even “proposed” to Consolo on Good Morning America with the ring he originally proposed to her with back in 2017 — a ring that sources at Kirkland say she wears to work every day. Here’s more from a tipster at K&E:

She even told people at work she would be unavailable during the day due to something unexpected, so she would not be coming in and would not be reachable by email.

Quit playing games with your Biglaw firm’s heart, Priscilla. We hope Kirkland doesn’t show you the meaning of being lonely. Best of luck on your upcoming nuptials!

Backstreet Boys help man propose to his girlfriend [Good Morning America]
Couple involved in Backstreet Boys proposal on ‘Good Morning America’ has already been engaged [Page Six]
Did Backstreet Boys-Assisted GMA Proposal Play Games With Our Hearts? [Daytime Confidential]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Over the past decade, we’ve seen both corporations and law firms not only accept litigation finance as an option, but embrace it as a powerful tool. The seemingly inexorable growth of the practice has been fueled by myriad factors, including the discard of misconceptions by the profession, favorable legal and regulatory developments, and the hard-to-deny returns achieved by the financiers. 

As it expands and evolves, we at Above the Law continue to strive to better understand the dynamics of the litigation finance industry. For the fourth time, we are asking practicing litigators and their in-house peers for insight into broader industry trends as well as their perceptions of specific litigation finance firms. 

Please take our brief (as always) survey and let us know what drives the decision to seek financing, how adoption varies among industries and categories of companies, and other topics. Regardless of the extent of your experience with litigation finance, we want to hear from you!

Take our survey here, or below!

Okay, Imma be up front about this one. Yes, the allegations involved in this story include some serious stuff. And homophobic “jokes” are categorically unfunny and, more importantly, unacceptable. But. Butt. The image of a Biglaw partner standing up and shaking their tuchus in the middle of a mediation just strikes me as hilarious.

So, let’s get into the meat of this story. Dennis Duffy, a partner in the Houston office of BakerHostetler, represents Chevron in an employment discrimination case. The plaintiff, Alclair White, is represented by Alfonso Kennard Jr. of Kennard Law PC. Kennard filed a motion for sanctions and disqualification for Duffy’s allegedly “intolerable conduct” during a mediation.

As reported by Law360, during the August mediation session Duffy’s alleged behavior included “shaking his behind” in front of Kennard. Additionally, the filing alleges that Duffy mocked Kennard’s ponytail and intimated that because of the hairstyle Kennard would want to have sex with Duffy.

Because of this alleged display of unprofessional behavior, Kennard is asking the judge to remove Duffy from the case:

“As a result of Mr. Duffy’s abusive language, plaintiff’s counsel questions his professionalism and does not want any more instances in the future,” according to the motion.

Kennard “is not convinced that Mr. Duffy can restrain himself in future communications based on his vulgar language. Mr. Duffy’s actions go beyond the pale of anything that should be tolerated anywhere — let alone in a legal proceeding.”

For their part, BakerHostetler is denying the allegations made in the filing:

“While we are unable to comment on anything discussed in a confidential mediation, we strenuously deny the assertions made in Mr. Kennard’s filing,” BakerHostetler said in a statement.

Regardless of the accuracy of the allegations in the filing, my appreciation for irony demands I point out that Duffy’s page on the BakerHostetler website includes, in a prominent position, natch, this quote from Chambers USA, “Clients describe Dennis Duffy as ‘highly professional.’”

**Chef’s kiss.**

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

It’s Pettiness Month in the Trump administration! ATL readers who do not live under rocks are undoubtedly aware of the headline pettiness, in which our only president fired people for testifying accurately against him (or in one case, for being related to someone who did). But if you don’t live in New York, you may have missed some immigration-specific pettiness: Because New York made a law limiting the Department of Homeland Security’s access to driver’s license records, New Yorkers are no longer eligible for DHS’s Trusted Traveler program.

The New York law in question is called the “green light” law, and its main purpose is to let undocumented immigrants apply for driver’s licenses. But another provision in the bill forbids the New York DMV from sharing its records with an immigration enforcement agency without a warrant or court order, and therein lies the “problem.” DHS, in a letter to the DMV, says New Yorkers are now canceled because the green light law “prevents DHS from accessing relevant information that only [the] New York DMV maintains.”

This alleged importance of driver’s license records came as a surprise to anyone who has applied for Trusted Traveler status, which does not require a driver’s license. Applicants’ criminal records are checked through the FBI, which is not a branch of the New York DMV. The DHS letter does, however, mention that Immigration and Customs Enforcement uses DMV records to verify identities and look up criminal histories. Indeed, ICE is fighting New York City in court for information about four former inmates who are immigrants, after the city refused to honor detainer requests under its sanctuary city ordinance.

That gave Gov. Andrew Cuomo some ideas about DHS’s real motives; last Friday, he called it “extortion” and “an abuse of power in a hyper-politicized government.” That impression was bolstered by Acting USCIS Director and breast-phobe Ken Cuccinelli, who on Thursday threatened the state of Washington with similar treatment if it passes a similar bill it’s considering. Not surprisingly, New York Attorney General Letitia James sued DHS on Monday, alleging equal protection and statutory violations, and Cuomo plans to meet with Trump Thursday to discuss it.

Lest you think the “Trusted Traveler ban” is merely an annoyance for rich Manhattanites, please recall that Buffalo is on the other border—you know, the one everyone ignores because white people are on both sides of it. Buffalo Mayor Byron Brown pointed that out in a Feb. 7 letter to DHS, asking “the party of fiscal responsibility” to reconsider before it breaks Buffalo’s heavily border-dependent economy. In an election year, economic issues are supposed to matter — but based on Trump administration practices, Republicans may love racial purity-protecting the homeland more even than they love money.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

It was major legal industry news last April when international business and legal services powerhouse EY entered into an agreement with Thomson Reuters to acquire Pangea3, the legal managed services business.

Now, 10 months later, EY has laid off at least some of the U.S.-based lawyers who came with the deal.

While precise details remain uncertain, reports indicate that EY has let go some 20-30 lawyers who work for it in the Minneapolis-St. Paul area of Minnesota and the Dallas-Fort Worth area of Texas.

At least some of those who were laid off were former Thomson Reuters employees who moved to EY after the acquisition. It is not clear whether any were hired directly by EY after the acquisition.

Reports indicate that the layoffs have been confined to U.S. locations of the former Pangea3 and have not impacted locations elsewhere, including India, where Pangea3 employed a number of legal professionals.

I have reached out to executive-level contacts within EY for an official statement on the scope and reason for the layoffs.

Multiple employees in the two U.S. locations have confirmed to me that they have been laid off. They have estimated that the total number of employees let go is in range of 20-30, with 15-20 of those in the Twin Cities of Minneapolis-St. Paul.

Update: Someone with knowledge of the layoffs said the number affected was approximately 17 in Minneapolis-St. Paul and approximately 30 in Dallas-Fort Worth. The person also said that all affected had been hired by TR before the EY acquisition. 

At least some of these employees were hired by Thomson Reuters early last year as permanent employees. They worked within the Legal Managed Services group (the former Pangea3). They worked on e-discovery review and other projects and performed work for multiple clients.

Outsourcing Pioneer

Pangea3 was founded in 2004 by David Perla, then the former general counsel of Monster.com, and Sanjay Kamlani, the former general counsel and CFO of OfficeTiger. The company pioneered the outsourcing of U.S. legal work to legal professionals in India.

In 2010, Thomson Reuters acquired Pangea3 in deal that media reports valued at roughly $40 million, but that sources familiar with the deal have told me was actually $100 million.

Last year, EY acquired Pangea3 — which TR renamed its Legal Managed Services division — for an undisclosed amount. At the time, Pangea3 employed more than 1,000 legal professionals across eight service delivery locations on three continents.

Also moving to EY as managing directors were the two TR executives who oversaw Pangea3, Joe Borstein and Ed Sohn. Shortly after the deal, the two appeared as guests on my LawNext podcast.

EY’s acquisition of Pangea3 followed its acquisition in August 2018 of Riverview Law, a UK-based alternative legal services provider.

As I said at the outset, details remain sketchy. While I have confirmed that layoffs occurred, I have not confirmed the number affected or the reasons for the move. As I learn more, I will provide updates.

If you’re one of those folks who believe the United States should function, broadly speaking, as a representative democracy, it would stand to reason that over a long enough timeline, the demographics of the organs of government would start to resemble the breakdown of the country. That’s not even the dreaded “identity politics” at work, but simple math. At any given time some groups might be over- or underrepresented (indeed, there’s nothing wrong with Justice Ginsburg’s famous “when there are nine” hope for an all-woman Supreme Court), but generally speaking if 15 percent of the population is X, then about 15 percent of the people in a particular office should also be members of X over the long haul simply by virtue of being 15 percent of the available pool.

But since the folks responsible for staffing the federal judiciary — specifically Leonard Leo and other Federalist Society leaders — believe America’s “representative democracy” should stretch only so far as representing the second-most selective country club in Mississippi, the federal judiciary does not really resemble America. I mean, they don’t even care if their judges are qualified, so seeking diversity enhancements is a tall order for them.

This morning, the Center for American Progress released a major report on the diversity of the federal judiciary titled, “Examining the Demographic Compositions of the U.S. Circuit and District Courts” prepared by Danielle Root. It gathers the receipts for the claim we all vaguely know to be true: the courts are woefully unrepresentative of America.

White people comprise 80 percent of the circuit courts despite comprising around 62 percent of the population. While that’s already bad, because federal judicial appointments are still for life, this is a number that’s only going to get worse. As the share of white people in the country declines relatively, people like Allison Rushing — a 2007 law school grad on the Fourth Circuit on the strength of her resume formerly working for a group that defined homosexuals as a threat to society — will just be reaching middle age with no plans to go anywhere.

Only one circuit is 50 percent female. Only one openly LGBTQ jurist sits on a circuit court. Women of color make up around 20 percent of the population and only 6 percent of active circuit judges.

Around 42 percent of active district court rosters are entirely white. Only 16 percent of district courts have at least half female judges. Openly LGBTQ folks? None. But credit to the Southern District Court of Illinois and the District Court of Hawaii where women of color make up half the bench. So there’s some progress!

But the report breaks down demographics by circuit as well, recognizing that, for instance, the Second Circuit where people of color comprise approximately 42 percent of the general population will have a larger pool of prospective jurists to draw from than, say, the Eighth Circuit where people of color represent around 21 percent of the population. But even controlling for this variances, the judiciary comes up short. The Second Circuit’s active judges are 69 percent white and the Eighth Circuit’s active judges are 91 percent white, both of which are off.

But the most insane offender is the Fifth Circuit where the population is 55 percent people of color but the active judges are 81 percent white. As you might suspect, the Eleventh Circuit isn’t far behind with 45 percent of the population being people of color and 80 percent of the active judges being white. It’s almost like those courts represent parts of the country where systemic racism has been particularly aggressive in preventing upward mobility among non-white people. But that certainly can’t be the case, because Chief Justice Roberts told me racism doesn’t exist anymore in Shelby County.

There’s a lot more detail broken down in the report.

Coupled with a prior CAP report finding that judges of “different races and ethnicities; gender identities and sexual orientations; and even educational and professional backgrounds add immense value to the development of federal common law that is fairer and more humane,” this study sounds the alarm for future administrations and Senators to work overtime to right the ship when it comes to demographic representation. Because numbers like this aren’t a quirk, it’s evidence of pretty deliberate disregard for selecting jurists from the full pool of available talent.

While liberals will naturally be inclined to spit outrage over these numbers, they shouldn’t be allowed to duck scrutiny for their role in getting us here. For years, when they had a hand on the rudder, they’ve distributed federal judgeships to talented attorneys based often on long-standing personal connections or a history of generous donations. This artificially limits the pool of available nominees to high-end attorneys and in-house counsel — jobs that for a whole host of other reasons are not necessarily diverse. Going forward, take a step back, recognize that biases may be compounding, and keep aware of talented attorneys who might not have been your roommate at Duke 40 years ago. That’s what the Democrats need to take away from this.

For the Republicans… well, Leonard Leo’s really psyched about a polo and khaki-clad caddy he just met who swears he’s watched 6 full seasons of Law & Order. Hearings will be scheduled next week.

Examining the Demographic Compositions of the U.S. Circuit and District Courts [Center for American Progress]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

When it comes to small law firms, getting attention from the world at large (read: potential clients) is the first order of business. At Above the Law, we’ve seen plenty of bold, or erm, interesting attorney advertisements that are designed to make you remember them if and when you find yourself in need of legal services.

Two Waco, Texas attorneys, Will Hutson and Chris Harris, have a novel (and harmonized) approach to attorney advertising. The pair, who both come from musical families, opted to sing and perform in lieu of a traditional lawyer blog. And the endeavor has been successful. One of their most popular pieces, Don’t Eat Your Weed, has over 500,000 (and counting) views on YouTube. And as ABA Journal reports, the catchy ditty counsels against destroying evidence which carries a much stiffer penalty in Texas than marijuana possession:

“Tampering with evidence doesn’t make any sense. Let the cops find your weed,” the two sing in a folk-country style, complete with a Waylon Jennings-esque drawl while strumming guitars on their music video, “Don’t Eat Your Weed.” “There’s a kind of probation called deferred adjudication, and there’s lots of other ways to plead. It’s just a misdemeanor. You can hire a cleaner to get it off your record.”

However, if you make the mistake of destroying, swallowing or trying to hide the evidence, it becomes a felony in Texas.

“As the officer approaches, you try to eat your roaches and you throw your weed out the door. Oh no, the cop sees you ’cause that’s what he’s trained to do. And now you’re in big trouble!” they sing.

Here’s the full piece in all its glory:

Harris credits the ploy with helping to humanize them as lawyers. And of course increasing their relevance and the number of inquiries they receive from potential clients:

“I think it’s intimidating for people to call lawyers,” Harris says. “They feel like they get a sense of who we are before they ever talk to us. Trust is huge in our business.”

As for whether the videos have helped the firm’s bottom line, Hutson says he’s received more phone calls and web queries. Harris, meanwhile, says his civil practice probably hasn’t been helped by a song about marijuana. Nevertheless, he says the firm’s web relevance score has increased, and they get inquiries from a broader base of people than before.

Their repertoire is more than just weed-related songs. They also have a popular number about the Fifth Amendment:

And Hutson and Harris also have “secular” songs. The duo perform as Alamo Basement (shout out to Pee Wee’s Big Adventure) and have recently crowdfunded enough money to record an album. The jury is still out on whether any of their “regular” songs are as good as “Don’t Eat Your Weed.”

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

* A California attorney has been busted for selling drugs and guns. Talk about a full-service attorney… [New York Post]

* A New Orleans lawyer is headed to federal appeals court in order to contest the constitutionality of mandatory bar dues. [Associated Press]

* A lawsuit suggests that the e-cigarette company Juul bought ad space targeted at kids on Cartoon Network and other outlets. [Reuters]

* Michael Avenatti’s fate for his shakedown of Nike has been submitted to a New York jury, while a trial date has been set for Avenatti’s alleged fraud against former client Stormy Daniels. Avenatti is quite the belle of the criminal law ball… [New York Post]

* An Oklahoma City attorney at the center of a triple homicide has been suspended from practice. [KFOR.com]

* Paul Weiss is facing a boycott of applicants over the firm’s representation of Exxon. Pretty sure there are plenty of people still willing to work there. [Salon]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Zimbabwe’s economy will overcome the numerous hurdles which lay before us on the path towards prosperity.  These obstacles are patent, and in some cases potent. But with hard work, proper planning, and monetary and fiscal discipline, Zimbabwe will get out of the current economic rut.

Some of these challenges are out of our control. Take Cyclone Idai in March of last year for example. The extreme weather phenomenon destroyed lives and livelihoods. This meteorological mess was followed by another, as drought struck across our lands.  Food output has thus been severely hampered by these outside forces; and we have been left with no choice but to subsidise, import and rely on help from the international community to avoid total crisis. While there were some real achievements in 2019, including a balanced budget for the first time in living memory, we have a commitment to subsidise where necessary to make sure our nation is fed.

As we move into 2020, we will continue to learn from these “unknown unknowns”. We are already investing in ‘climate proofing’ our agriculture, including new irrigation techniques, and drought resistant crops. We must now double up our efforts with our international partners – new and old – to protect our agriculture and food supply.

As we look forward to growing our economy, it is incumbent upon us to rein in inflation as quickly as possible. This is crucial for investment. This is vital for job creation.  Month on month inflation is already stabilising, down to approximately 16%. Of course, annual inflation remains high. We do not hide this, nor was this unexpected. That is what happens when you liberalise a currency. But this process of reforms is a long-term necessity for our economy.

We are taking steps to prop up the currency, drip-feeding in cash injections in a non-inflationary manner. This has involved exchanging electronic currency for the physical currency. We will also be introducing higher denomination notes over the course of 2020 to make it easier for citizens to transact. We know the current environment is tough. But Zimbabwe’s economy needs tough reforms, not superficial ones.

In the current environment, both wages and purchasing power have taken a big hit. Government therefore has a responsibility to support consumers and the private sector as a whole.  As part of the currency reform agenda, we have had inevitable wage compression. This is part of the liberalisation process. We have responded by propping up the wages of the civil servants, and we hope the private sector acts in kind. Dollarisation inertia unfortunately means that retailers are still pricing in USD and simply translating it to the local currency.  This is squashing the purchasing power of current wages. We are closing that gap by allowing wages to rise.

In order to finance these moves and reboot the Zimbabwean economy as a whole, it is crucial to reform state-owned companies.  We have already passed the first hurdle, which was to decide which ones should be partially privatised, which ones should be liquidated, and which ones should be departmentalised, and of course to highlight those which should not be touched.  2020 is now about implementing and enacting these moves. We will advance the partial privatisation of the telecom company (Netone) and motor-vehicle assembly company (Willovale Mazda Motor Industries), capitalise our Silo Foods Industries, privatise banking assets and more. We want to have a private sector-led economy in Zimbabwe. And for the private sector to lead, we must privatise!

Despite all the hurdles and all the barriers, Zimbabwe in 2019 leapt 15 places in the Global Ease of Doing Business rankings. As we look to improve this in 2020, privatisation is a big part of this story.

For the first time in living memory, Zimbabwe achieved a balanced budget. We have our fiscal and monetary fate in our own hands. We have a talented, educated and devoted workforce, ready to get to work. And we have natural resources a-plenty, ready to drive our economy forward. The Zimbabwean future is, therefore, an exciting one. With patience and discipline, we will overcome all the hurdles that lay in our path and build a better future for all.

Post published in: Business