Category: News Feeds

POP QUIZ:

If the judge grants Defendant’s motion to dismiss, which side won the case?

Do you need more time? Or perhaps remedial CivPro?

Here on Planet Earth, the Defendant is the prevailing party. Yes, even if the Plaintiff “voluntarily” dismisses the case during the 14 days allotted for him to file an appeal, before the trial judge enters a “final order.”

For extra credit, can you guess which razzledazzle libelslander lawyer actually filed a motion claiming that his client had deprived the court of subject matter jurisdiction by dismissing his suit before a final judgment was entered?

Obviously it’s Devin Nunes’s favorite Earthlink lawyer Steven Biss, best known for suing a Twitter cow, with a local assist from Roger Stone’s attorney Robert Buschel. Last year, these two legal eagles sued the Daily Beast on behalf of rightwing “personality” Dan Bongino, who had been cruelly defamed by a story about the end of his business relationship with NRATV (RIP) and needed $15,000,000 to make him whole again.

Or perhaps not. On August 6, U.S. District Judge Jose Martinez granted the Beast’s Motion to Dismiss for filing a case that was procedurally and factually defective in every respect. And worse still, the court awarded the Beast attorneys’ fees for having to defend itself against such a bullshit SLAPP suit.

Not so fast, argued Biss and Buschel. Bongino had until August 20 to file an appeal, but instead he filed a motion to dismiss the case on August 10 so bingo bango bongo, actually there was no winner here and the court should just butt right out.

If we hadn’t seen it with our own eyes:

The Court has no subject matter jurisdiction to consider Defendant’s motion. On August 6, 2020, the Court entered an Order granting Defendant’s motion to dismiss with leave to amend and “prospectively” granting Defendant’s motion to recover costs and fees under Florida’s anti-SLAPP statute “fees based on Plaintiff’s initial Complaint.” Because the Court permitted Plaintiff an opportunity to amend, the Court held off on a final ruling on the matter. [ECF No. 23]. On August 10, 2020, Plaintiff timely filed notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. On August 11, 2020, the Court entered a Final Order of Dismissal and closed the case. Plaintiff had an “absolute” right to voluntarily dismiss the case pursuant to Rule 41(a)(1)(A)(i), which he exercised prior to the Court’s final ruling on Defendant’s motion to recover fees under Florida’s anti-SLAPP law. Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (“a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.”). The District Court was divested of subject matter jurisdiction upon Plaintiff’s filing of the notice of voluntary dismissal.

That … did not go over.

“Plaintiff relies on a single case from 1963, American Cyanamid Company v. McGhee,” notes U.S. Magistrate Judge Shaniek M. Maynard, before going on to cite several cases in the past 57 years which “mak[e] clear that a court can award attorneys’ fees even after a case has been voluntarily dismissed.” Her Honor was no more impressed with the contention that Bongino had somehow fought the Beast to a draw.

“It is of no moment that Judge Martinez granted Defendant’s Motion to Dismiss without prejudice, because when a district court dismisses an action against a defendant, even if that dismissal is without prejudice, the defendant is the prevailing party,” she wrote. “Accordingly, Defendant is the prevailing party in this case and entitled to fees.”

Yeah, no shit.

So Bongino is on the hook for $31,835.00, which is a ridiculously low figure for 91 hours of labor from Davis Wright Tremaine LLP. But even with the bath he’s taking on his investment in Parler, the guy’s posts are routinely in top ten performers on Facebook and he’s got a gazillion listeners for his podcast, so he can afford it.

Ah, well. Sometimes you own the libs, sometimes the libs own you.

Bongino v. Daily Beast Company, LLC [Docket via Court Listener]

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

Two UnitedHealthcare policies are raising concerns among healthcare providers, and the country’s most prominent hospital association wants the government to investigate them.

The American Hospital Association is asking two federal agencies to examine what the association deems is UnitedHealthcare’s anticompetitive conduct as well as payer policies that could block access to care.

But the payer says it plans to take action to alleviate some of the burdens hospitals worry will arise from the policies.

Last week, the hospital association sent a letter to Elizabeth Richter, acting administrator of the Centers for Medicare & Medicaid Services. In it, the association details its concerns about two UnitedHealthcare policies — one that the insurer is planning to implement in 2021 and another that took effect last year.

The first is the payer’s Designated Diagnostic Provider program, which would require outpatient laboratory services to be provided by freestanding and outpatient hospital laboratories that meet certain quality and efficiency criteria, said Tracey Lempner, director of communications at UnitedHealthcare, in an email.

The program, to be implemented July 1, does not apply to lab services provided as part of an inpatient visit or emergency services, Lempner explained further in a phone interview. In addition, it is only applicable to commercial health plans.

“The new benefit designs provide our members with access to quality, efficient care while helping to protect them from higher lab costs,” she said.

But this new program will cause “substantial confusion” for patients about which labs are covered by their health plan, and could result in surprise medical bills, the American Hospital Association said in its letter to CMS’ acting administrator.

If a patient receives services from a non-designated laboratory, UnitedHealthcare can deny coverage and the patient will be responsible for payment.

“In short, the DDP program is attempting to redefine the concept of an ‘in-network’ provider and limit patient access to a much smaller pool of laboratory service providers,” the letter states.

But the payer has plans to help combat the above issues. UnitedHealthcare will educate its members and providers on the new program and offer information on how to identify a designated diagnostic provider, Lempner said.

Further, patients billed for lab services performed by a non-designated entity without their knowledge will be able to appeal the decision.

The potential to limit patient access and give rise to surprise bills aren’t the American Hospital Association’s only issues with the program.

In a letter sent last week to Rebecca Slaughter, acting chairwoman of the Federal Trade Commission, the association said that the program was an example of anticompetitive conduct.

Describing the Designated Diagnostic Provider program as “a bait and switch coverage policy,” the association reiterated the arguments it made in the letter to CMS’ Richter.

“While the AHA supports the provision of safe and efficient care, the DDP program threatens network adequacy, creates the likelihood of confusion for consumers seeking care, and improperly changes UnitedHealthcare’s agreements with enrollees and provider,” the letter states.

The association urged the FTC to put aside its planned retrospective study of mergers between physician groups and healthcare facilities, and instead, focus on these types of anticompetitive behaviors.

The second policy that has providers concerned is related to UnitedHealthcare’s specialty pharmacy coverage.

In the letter to CMS’ Richter, the association said that UnitedHealthcare plans are no longer allowing many providers to buy and store certain drugs per the specialty pharmacy coverage policies.

Instead, the policies require providers to “accept drugs purchased and handled by the health plan, which in turn relies on the OptumRx chain of owned and affiliated specialty pharmacies,” the association said.

The association detailed all the patient care issues this could bring up, from delaying or disrupting drug administration to preventing hospitals from being able to guarantee the safety of drugs firsthand.

Further, under these policies hospitals are no longer responsible for drug purchasing, but will still have to face the consequences of drug shortages, the association said.

But UnitedHealthcare said its specialty pharmacy policies — which went into effect Oct. 1 — will help drive down costs.

“Our data shows that for some outpatient hospitals, the reimbursement rate on some specialty drugs may be over 400% of the reimbursement rate established by CMS for the same drug,” said Trasee Carr, a spokesperson for UnitedHealthcare, in an email. “By requiring outpatient hospitals to source these drugs through an indicated specialty pharmacy, we are driving unnecessary costs out of the healthcare system to help make care more affordable.”

The American Hospital Association has asked Richter to prevent the payer from implementing the diagnostic and specialty pharmacy coverage restrictions for CMS’ insurance products.

Photo: Mykyta Dolmatov, Getty Images

We should be looking for ways to encourage judges to take senior status. I think maintaining their stature is important. If stature would have been maintained, maybe I would have stayed. I don’t know.

— Former Third Circuit Judge Thomas I. Vanaskie, who briefly took senior status before leaving the bench entirely in 2019, commenting on one of the ways to sweeten the pot for federal judges who are interested in senior status but wind up not taking it. Vanaskie said that allowing senior status judges to participate in en banc rehearings would be a “tremendous inducement” for judges to give up their active status on the bench.

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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.

If Sidney Powell ever gets tired of losing lawsuits about election fraud conspiracies, she may want to consider a career in the World Chase Tag league. In a filing noting that Dominion would not object to Powell’s request for an extension in responding to the defamation complaint, Reuters resident court watcher Brad Heath caught this language.

Powell is under no obligation to make service of process easy of course, but Dominion is right to note that when she asks the court for accommodations that drag out the process that she Carmen Sandiegoed herself. An odd move since she’d suggested to the press that she had nothing to worry about from this “abusive” lawsuit:

Powell, in an email, said, “I have not received notice or a copy of a Smartmatic lawsuit.”

“This is just another political maneuver and outrageous abusive ’lawfare” by the radical left that has no basis in fact or law,” she said.

It seems that she might have more concerns than she let on.

How did Dominion catch up with Powell? Even though we all have her home address thanks to these lawsuits, Powell wasn’t ultimately found in Texas, but in North Carolina where Dominion’s private investigators found her. Good work, gumshoes! And now… Rockapella!

At that point, Dominion apparently brought the cops into it:

Where will this international woman of mystery show up next?

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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.

From the way you meet clients to the way you do research, everything’s more virtual in today’s pandemic climate. Practising Law Institute (PLI), known as the industry’s established provider of continuing legal education, also provides authoritative, practical guidance in an online format that makes finding information easy – even if your “office” is in your dining room.  

Alexa Robertson, PLI’s Senior Director of Legal Information Services, answers some questions about PLI’s publishing offerings, including PLI PLUS, PLI’s online legal research system.  

Many lawyers will know PLI for CLE. How would you describe PLI Press and the PLUS platform to those unfamiliar with this side of your organization? 

As a nonprofit learning organization, we’re dedicated to keeping attorneys and professionals at the forefront of knowledge and expertise – this includes not only CLE and other training programs, but publications as well. PLI PLUS is our legal research database. We make all our publications available, so you have the benefit of finding answers in any of our renowned treatises, journals, or program course handbooks and transcripts. Subscribers to PLI PLUS have unlimited access to all PLI publications and course materials.

What makes your offering stand out in the crowded marketplace?  

It is often said in legal publishing that “content is king.” For us, that is especially true. Our authors are experienced thought leaders who provide detailed and practical materials.  

For example, we’ve been told that while there are other titles on regulation of broker-dealers, only the PLI treatise Broker-Dealer Regulation by Clifford Kirsch has a chapter that walks you through the FINRA registration process. These types of elements underscore the practicality of our titles, which can be guides that help you in your day-to-day practice. You can find these standout insights across our titles, including Manning on Estate Planning, Friedman on Leases, Fragomen on Immigration Fundamentals and Trial Handbook.  A PLI treatise is a comprehensive resource.  

What makes PLI PLUS especially useful is that it offers the complete library of these resources, so you can easily find the answers you’re looking for. And though it is a robust database covering 25 practice areas, we’re committed to making it as easy to use as possible so our customers can focus on the content, not the platform itself. For example, we call out the legal forms and checklists in our titles and allow you to download them to Word so they are easy to use. And with the “My Preferences” feature, users can customize the database settings to suit their needs. 

What changes have you seen as a result of the pandemic? 

When the legal world quite abruptly moved to remote work in March, we saw the effects right away; there was no one in their offices to receive our books. We immediately provided PLI PLUS access to print subscribers as a stopgap measure, because attorneys and law schools across the country were shifting to remote work and remote learning. Throughout the summer and fall, we saw a large number of our print subscribers opt for electronic access through PLI PLUS. We hear people talk about the “new normal” and an increasing preference for resources that cater to remote work – that is something we will continue to respond to as we look ahead to the post-pandemic world.   

How can non-subscribers benefit from PLUS? 

Even if you don’t subscribe, we make some content freely available. The PLI Chronicle is our newest publication, aimed at giving voice to the diverse array of professionals working in the legal industry. It features concise articles contributed by legal scholars, practitioners and other experts on a range of timely topics that are practice-specific (such as renewable energy, SEC policy, copyright law, and pro bono advocacy) as well as relevant to the profession (such as negotiation skills, well-being in law firms, and remote work policies). 

We also offer the Journal, which is an essential resource for timely, in-depth and authoritative analysis of topics impacting the law and the legal profession. Articles in this publication are more heavily researched, with footnote citations to relevant case laws and statutes, as well as links to interesting articles for further reading.  

Looking ahead, what enhancements does PLUS have planned for the coming year?

Our enhancements come directly from customer requests we receive throughout the year – we have an ongoing dialogue with our customers that we find very beneficial. Next year we are focusing on integration between our programs and publication products, in response to our customers’ desire for easy access across all formats. We also plan to modernize the PLUS interface so that it is more in line with the main PLI website. We’re looking forward to working with our customers throughout the year to ensure we’re developing an enhanced site that meets their needs.  

Thanks to the pandemic, lawyers must now be wary — very wary — of sharing their computers with their children. Case in point, the latest Zoom court mishap, brought to us by Judge Roy Furgeson of the 394th Judicial District of Texas.

As you can see in the clip below, a cute little kitten made an appearance during a hearing. You need to change your filters right meow, before you’re forced to tell a judge you’re not a cat, as this poor attorney did when he said,  “I’m here live. I’m not a cat.” Check it out for some amusement this afternoon.

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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.

It’s not even been a week since Smartmatic sued Sidney Powell, Rudy Giuliani, Fox, and several Fox anchors for $2.7 billion alleging that the combined defendants engaged in a scheme where the lawyers made knowingly false claims while the news organization enabled the defamation by bringing them on and choreographing questions to lend credence to the damaging lies. And yet Fox has already fired off their motion to dismiss (which you can read here). Seems like someone really wants to get this behind them quickly!

Right after canceling Lou Dobbs — supposedly the highest-rated show on Fox Business — a Kirkland & Ellis team headed by Paul Clement put in a responsive motion from Fox Corporation and Fox News asking to get out of the suit weeks before the deadline. For the cynical out there, the timing feels more than a little like a prelude to settlement talks, offering the carrot of a sidelined Dobbs with the stick of a colorable motion to dismiss from a high-powered attorney.

But if you aren’t convinced that Fox is worried about this lawsuit, consider that the network, beset by en masse defections from viewers heading to OAN and Newsmax because they feel Fox is “too liberal,” crafted their motion around the idea that they questioned Powell and Giuliani repeatedly and never really believed them anyway. In other words, Fox’s defense is that they’re exactly as squishy as their former viewers claim.

• On November 14, Pirro told Powell on Justice with Judge Jeanine: Smartmatic and Dominion have “denied that they have done anything improper[.] … [W]hat evidence do you have to prove this?” (NYSCEF.Doc.No.5, Pls.Ex.3.at.2-3.)
• On November 14, Eric Shawn, another Fox host, explained on America’s News HQ: “[E]lection officials and the government say that [the fraud] is just not true” and that the allegations are “baseless.” (Fox.Ex.14.at.1.)
• On November 15, Bartiromo asked Powell on Sunday Morning Futures with Maria Bartiromo: “Sidney, you feel that you will be able to prove this[?] … How will you prove this, Sidney? You believe you can prove this in court?” (NYSCEF.Doc.No.7, Pls.Ex.5.at.16-17, 22.)

See! They were just reporting the fact that Powell and Giuliani made allegations. Not only didn’t the network take a stand, it openly cast doubt on the accusations. The motion has a whole appendix collecting coverage like this.

And, more or less, Fox is right about that. It’s not defamatory to point out that someone has filed a lawsuit or talk to the lawyers about the allegations. Making pains to keep the record clear that these are unproven allegations further proves that the outlet is merely covering the story. Even pointed commentary isn’t defamatory. It’s opinion to say, “hopefully the Department of Justice” would consider the case — as Pirro did. Unlike OAN, who took Mike Lindell’s money and then indicated that they had reason to believe he was about to lie in what amounted to an extended advert, Fox presented everything in the form of news coverage. A lot of Smartmatic’s allegations hinge on the theory that Fox’s mere decision to foreground this coverage amounts to joining a defamation scheme. While media critics might have a lot to say about using a progressively decaying legal story as a tent pole for primetime coverage is a de facto adoption of false claims, that’s an uphill legal claim.

Unfortunately for Fox, the collected tidbits of responsible journalism they’ve collected don’t exactly tell the whole story. Or perhaps, more to the point, unfortunately for Lou Dobbs and by extension Fox.

Mr. Dobbs then took the initiative and contributed additional falsehoods to the narrative by telling people that Smartmatic and Dominion sent votes out of the country so the voting is not auditable. He had no evidence of this assertion, and Secretaries of State had stated the opposite, but that was another aspect of the false narrative that Defendants ultimately wanted to spread. Mr. Dobbs stated: “And, by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. It won’t permit them being touched.”

That’s from the original complaint and that’s Dobbs going a lot further than hearing Rudy’s side of the story as he volunteers claims about Smartmatic that the company says are false. Or when Dobbs volunteered, “Dominion has connections to U.K based Smartmatic, a voting technology company established in 2000 that had ties to Venezuela’s Hugo Chávez” which is a whole bundle of BS. Or:

Mr. Dobbs: This is the worst in our country’s history. There is no election in our presidential history, our nation’s history in which there were so many anomalies, so many irregularities and so much clear evidence of fraud.

It’s not too hard to read through these filings back to back and imagine an attorney telling the client that one named defendant has a much worse case than the others. There’s a reason Smartmatic doesn’t name Tucker Carlson in this suit and for all the clear MAGA thirst Pirro and Bartiromo exhibited in running wall-to-wall coverage of allegations that had been debunked repeatedly, they avoided the kind of language that lands Dobbs all over this complaint.

Clement also banks on Smartmatic needing to show actual malice. Putting aside whether pegging the company as a conspirator working for a dead dictator exhibits actual malice, can Fox claim Smartmatic is a public figure solely because Fox coverage turned Smartmatic into a public figure? It’s a company that only provided voting machines to Los Angeles this election and somehow got roped into an ever-morphing conspiracy about shifting ballots in multiple battleground states.

This isn’t a totally novel question. In the Richard Jewell cases — back before Lin Wood got mixed up in the same shenanigans we’re talking about here — folks may remember that the media successfully convinced the judge that Jewell had transformed into a voluntary limited purpose public figure by inserting himself into the Olympic bomber story as a hero first, but might forget that they also tried to argue that he was an involuntary public figure. That was, rightly, a hefty standard to overcome. You can’t blame Clement for trying but for a company that was routinely mistakenly conflated with Dominion in comments littering the complaint, it’s hard to say they’re the sort of unmistakable household name that the actual malice standard is designed to protect.

But in any event, Fox wants the court to know that they didn’t defame anybody because they never had the courage to “fight like hell” as Trump might say or engage in “trial by combat” for the president as Rudy might say. They’re just the standard liberal journalists sipping coffee in their local Starbucks refusing to believe anything Sidney or Rudy were saying. Just like OAN and Newsmax suggest.

And if Smartmatic doesn’t buy that, well, they’ve already canceled Lou Dobbs and isn’t that and a modest, undisclosed settlement enough? Asking for a Biglaw attorney team….

(Full brief on the next page.)

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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.

HBR Consulting  just released the 2020 Benchmarking + Legal Information Services Survey (BLISS). The innovative and interactive delivery format is at least as interesting as the content. The survey focused on the core metrics such as staffing, budgets, and resources but also covered hot topics such as innovation and COVID-19 impact. The survey was undertaken during June and July 2020, three months after most law firms were two months into mandatory work from home. That enabled the  survey designers to capture some insights into how law firms were adapting legal research and knowledge services in response to the pandemic.

I asked Colleen Cable, director at HBR Consulting, to provide some insight into HBR’s goal in creating the survey. According to Cable “HBR recognized that there was a need for law firm library benchmarking data that could be utilized to support decision-making within the firm. This type of benchmarking, available by Am Law segment, is not offered anywhere else in the market, so HBR stepped in and BLISS was born.” One of the things I noticed immediately is that this report captured attorney staff ratios. This has been an elusive “holy grail” of library benchmarks that I have been begging for over the many years I have been reviewing library surveys produced by both associations and commercial companies.

BLISS topics include the following:

• Cost management opportunities
• Coordination of print materials
• Supporting firm innovation initiatives
• Research requests
• Work-from-home policies for information professionals

The BLISS survey  includes data from 60 participating law firms across Am Law 100, Am Law 200 and Am Law 200+ segments. The respondents were almost equally allocated across firm size and geography.

The Format’s The Thing

There is no printed BLISS report, but participating law firms can interact with the survey results and view the data based on law firm segment. Users can see how their own responses compare to the data within their firm’s peer group.

• Key features
  • Deliverable is interactive via a website
  • Ability to segment by firm size to review benchmarks based on participant parameters
  • Trending data included
  • Each participant receives a unique password to access the interactive website
  • On the interactive website, the participant’s individual responses appear below each graph and data point for a quick comparison of one’s firm against the overall responses

Key Takeaways

• 27% of respondents did intend to increase staffing in the next 12 to 18 months
• Research requests were up 33% over 2019
• The number of firms having a sole provider in place in 2020 (39%) remained flat from 2019
• Due to office closures and the new work-from-home culture mandated by COVID-19, reduction of various print resources accounted for half of the identified cost savings opportunities
• Though loose-leaf filing is by far the most commonly outsourced library function, there are additional areas where outsourced support is being considered, such as partially outsourced research services (11%) and contract negotiations (16%)
• The top 5 advanced research tools responding firms are considering purchasing are Westlaw Edge, Checkpoint Edge, Casetext Compose, Courtroom Insight, and Lexis Context
• While 68% of respondents indicated that their researchers conduct research directly for clients, HBR notes that this is a 10% decrease from 2019 results
• 2020 collection budgets  increased 4% from 2019, while personnel budgets increased by 3%
• Only 11% of respondents noted increasing resource budgets, while the remaining respondents were evenly split between maintaining and reducing resource budgets
• 82% of responding firms use a resource metering tool, like Onelog or Research Monitor, and 59% of responding firms use a research management system, like Quest, to support staffing alignment, make content decisions, and analyze research statistics
• Even during an economically turbulent year, responding firms spent 4% more on print and digital resources in 2020 than in 2019, with attention to adding tools to support innovation

The Digital Revolution That Stalled

One of the metrics that surprised me most was the percentage of budget still devoted to print resources. E-treatises, ebooks, and online database substitutes have been available for over a decade. While librarians often bear the blame for the high print costs, it is often the partner insistence on the  retention of print that has stalled the revolution. Law librarians who had the foresight to invest in web-enabled catalogs, IP-authenticated e-treatises, and digital desk book shelves over the past decade saved their firms a world of grief and money.

Law firms that had made the digital leap and completely transitioned lawyers to their digital desktops had virtually no start up issues when COVID-19 mandates to work from home were issued last March. By contrast, law firms that still relied on print found themselves locked out of their office libraries and were faced with building the digital libraries and training lawyers during the frantic early WFH days. That inconvenience was coupled with painful cost consequences. Law firms with large print collections were largely stuck with legacy multiyear print-subscription contracts which major vendors such as Lexis and Westlaw refused to cancel or adjust in light of the pandemic and working from home conditions.

Librarians who want to participate in the 2021 survey can register at this link.

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Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

As early as today, the Biden administration will begin contacting the 56 senate-confirmed U.S. Attorneys to ask for their resignations, CNN reports. The only exceptions to the ouster of Trump appointees will be David Weiss in Delaware, who is investigating Hunter Biden for tax issues, and Connecticut’s John Durham, who is still plugging away on the origins of the Trump-Russia probe.

Acting Attorney General Monty Wilkerson, heading the DOJ until such time as Lindsey Graham gets off his high horse and allows Merrick Garland to be confirmed, called Weiss and Durham last night and told them that they would be exempt from the turnover, although Durham will no longer be U.S.A. for Connecticut.

The move has been widely anticipated, with Senators soliciting applications for the expected vacancies for months. Indeed, it is standard practice for presidents to replace political appointees at the Justice Department. Although most administrations handle the transition with more aplomb than Trump, who told Preet Bharara that he could stay at S.D.N.Y, then backtracked, only to have his personal attorney Marc Kasowitz brag that he’d personally gotten Bharara fired.

It’s unclear whether Biden intends to immediately replace acting U.S. Attorneys Audrey Strauss in Manhattan and Seth DuCharme in Brooklyn, both career DOJ employees heading up politically charged investigations in offices that Bill Barr tried to to ratf*ck in spectacular fashion. Ditto for acting U.S.A. Michael Sherwin in D.C., who has been holding down the fort since Barr pushed out Jesse Liu with an offer of a Treasury Job which never materialized, and is now managing the Capitol riot probe.

As for the other offices, according to CNN, “Justice officials have scheduled a call with US attorneys around the country to discuss a transition that is expected to take weeks,” which sounds like they’re aiming to do this in an orderly fashion, rather than shoving everyone out the door post haste.

Competence, it’s so refreshing.

DOJ to ask Trump-appointed US attorneys to resign [CNN]

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

Harvard Law School’s Law Review recently elected its first Muslim president, adding to a series of noteworthy diversity firsts for the school’s prestigious legal journal. The move attracted much fanfare, but it turns out that Harvard isn’t the only T-14 law school to announce a diversity first for its incoming editorial board.

As it turns out, Stanford Law School’s Law Review recently elected its first Iranian-American, Muslim president. Daniel Khalessi ’22 was elected in November 2020, and assumed the role last month. This is what he had to say about his new position in an interview with the Stanford Daily:

I think the hope that I have for my election, if it has any symbolic meaning or anything like that, is that I want people to know that there is a more tolerant America beyond the America that we’ve seen in the last four years. There’s a lot of challenges, there’s so many problems going on and they’re not going to get resolved. But, I think, electing people of color and minorities to these positions and opening doors for others is really important in showing that America can be a very inclusive and tolerant place.

Khalessi, a Stanford graduate who later attended Yale for his master’s degree and spent a year at Peking University in China as a Yenching Scholar, has expressed an interest in constitutional, national security, and international law. He says one of his long-term goals is to become an international legal scholar.

Congratulations to Daniel Khaleesi on his noteworthy achievement.

Q&A: Diversity makes us better, Stanford Law Review president says [Stanford Daily]

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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.