Mike Brown Withdraws As Acquisition Nominee – Breaking Defense

Mike Brown, right, has withdrawn as the nominee to be Under Secretary for Acquisition and Sustainment. (DoD photo)

WASHINGTON: Mike Brown, the Defense Innovation Unit head who had been nominated earlier this year to be the Pentagon’s top acquisition official, has withdrawn his candidacy.

In a letter to Defense Secretary Lloyd Austin, obtained by Breaking Defense, Brown cited an ongoing investigation by the Office of Inspector General — first reported in April by Defense One — as the reason for withdrawal. That investigation appears poised to take more than a year, Brown said, tying up the nomination process. 

“While I am confident the Office of Inspector General will ultimately find no wrongdoing on my part, I know there are other qualified candidates who can focus on the urgent business of making our acquisition processes faster and more cost-effective,” Brown wrote in the letter. “I must put the interests of the Department above my own enthusiasm for serving as the Under Secretary for Acquisition and Sustainment.” 

Brown, a former CEO of cybersecurity firm Symantec, joined the DoD in September 2018 to lead DIU, a small office dedicated to increasing ties between the department and commercial technology firms. The rare Trump administration appointee to have been kept on at the Pentagon by the Biden team, Brown over the years has gained a reputation in Congress as a China hawk thanks to his co-authorship of a departmental report that warned Beijing is actively trying to buy into the defense supply chain.

His nomination was backed by a number of notable defense figures, including Ellen Lord, who served as A&S head during the Trump administration, and former House Armed Services Committee chairman Mac Thornberry. 

The IG complaint, filled by a former DIU official, targeted Brown’s hiring practices, claiming his team improperly hired individuals and that DIU altered contracts to award bonus funds to specific employees at some companies. Sources in DIU have consistently said the complaints are without merit and have described the complainant as more disgruntled employee than whistleblower. 

Regardless of how the report pans out, the process has scuttled Brown’s chances. He intends to return to running DIU, which he described as being key to “challenge the status quo” for the department. Stacy Cummings will continue to perform the duties of the A&S role, which she has been filling since Lord’s departure in January. 

For The First Time In Ages, Associates Are In Control Of The Market

Right now firms are just feeling like, ‘We don’t really have that much of a choice.’ And I think the lawyers realize that and are going to be pushing for as much as they can get.

[Firms are] very cognizant of who has the leverage right now because they’re so busy, they literally can’t find enough people to get all the work done. That’s why you see these tremendous signing bonuses to associates, and the recent salary wars escalating again. [Firms are] very concerned about putting a line in the sand.

Here you may have a situation where the desires of the client are diametrically opposed to the wishes of a larger number of attorneys at the firm, both associate and partner alike. That has the potential to create significant tension within the firm and may even cause some attorneys to vote with their feet.

— Jeffrey Lowe, global practice leader of the law firm practice at Major, Lindsey & Africa, commenting on “very pro-attorney market” that law firms are dealing with in the wake of the pandemic. Individual associates and partners have more power, leverage, and autonomy now than they ever did before.


Staci ZaretskyStaci 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.

Kraken Lawyer Siccing Private Investigator On Michigan Election Clerks

A Kraken lawyer has dispatched a private investigator to accompany a Michigan sheriff’s deputy on secret interrogations of election clerks about the 2020 election.

Just … WTF?

Bridge Michigan reports that Barry County Sheriff Dar Leaf has sent private investigator Michael Lynch out accompanied by a sheriff’s department employee to harass election workers about the 2020 election.

Leaf previously made news by suggesting that the plot to kidnap and execute Governor Gretchen Whitmer was perhaps just a plan to carry out a totally legal (huh?) citizens’ arrest. He worked with the Kraken legal team in an effort to seize the voting machines in Barry County (pop. 61,157), where Trump took 65 percent of the vote. And he filed one of the more amazingly ridiculous election suits of the season, attempting to halt election certification based on warmed over “Sharpiegate” allegations from Arizona.

Denying Leaf’s request for a restraining order, Chief U.S. District Judge Robert J. Jonker said the application “contain[ed] only introductory comments, a section regarding subject matter jurisdiction, a section on the parties, and then proceeds straight to an analysis of Rule 65 and a request for relief. The Applications are not verified either.”

He went on:

Plaintiffs’ Applications invite the Court to make speculative leaps towards a hazy and nebulous inference that there has been numerous instances of election fraud and that Defendants are destroying the evidence. There is simply nothing of record to infer as much, much less conclude that irreparable injury will occur before the defendants can be heard.

Finally, the Applications do not satisfy the Court that Rule 65’s notice certification requirement has been met. Plaintiffs state they made a “reasonable effort” to serve the Applications via email to counsel representing the Defendants in a separate action currently pending in the Eastern District of Michigan. But a “reasonable effort” does not notice make.

Three guesses which Kraken Krackerjack filed this POS suit on Leaf’s behalf.

Hint: It’s the same one who put her name on that insane brief insisting that an e-signature didn’t count as actually appearing in the case.

That’s right, it’s Stephanie Lambert Junttila, most recently seen in these pages getting castigated at last week’s Kraken sanctions hearing for failing to cite any cases in support of her argument that the First Amendment allows lawyers to say absolutely any insane bullshit in the course of zealous client representation.

Previous FOIA requests show Leaf cahootsing with Junttila and other members of the Kraken Krew via his attorney Carson Tucker. And so it’s perhaps no surprise that Junttila hooked Leaf up with a civilian investigator to participate in this wildly inappropriate fishing expedition in the company of a law enforcement official, so as to give it the apparent coercive endorsement of state imprimatur.

“I was told by my clerks that they were told not to say anything to each other or to me,” Barry County Clerk Pam Palmer, a Republican, told Bridge. “So I don’t know what (Leaf and his team) are trying to hide. I’m told by the investigator that they’re doing this under the element of surprise.”

There’s a lot that’s unclear here, including who is paying Lynch to interrogate these county employees as apparent state actors and what Junttila’s role is in the scheme. But it certainly appears that she’s communicating on Lynch’s behalf.

Leaf has refused to disclose an initial complaint that he said prompted the investigation. The local media has quoted Leaf as saying his office is not paying Lynch, the private investigator who is working with his office and has questioned local government officials alongside a sheriff’s deputy.

In a brief phone interview Thursday, Lynch told Bridge Michigan he is “part of” the Barry County probe but declined to say who hired him. He said he was about to have a meeting and would call back. He has not.

Instead, Junttila responded by email to a separate Bridge inquiry, describing Lynch as a “certified fraud examiner” and “licensed investigator” who “was previously employed at DTE for 40 years with 20 years spent serving as the director of security.”

“Michael Lynch has not been paid to investigate election fraud in Barry County,” Junttila wrote.

She did not respond to follow-up questions, including whether Lynch is being paid to investigate anything else. Lynch did not answer a phone call on Friday and did not respond to questions via text message, telling Bridge Michigan that “Ms. Lambert (Junttila) sent you a response.”

Diiiiiiiiiiiirty.

It’s always the ones you most suspect, right?

Michigan sheriff enlists private eye to grill clerks in vote fraud probe [Bridge Michigan]


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

Salaries Are On The Rise At Yet Another Law Firm

The new market standard salary may have taken effect at most firms on July 1, but we’re still hearing from associates at firms across the country about compensation changes in the wake of Davis Polk’s bombshell salary increases that have now become the status quo.

That’s where real-estate boutique Duval & Stachenfeld — the home of our former longtime columnist, Bruce Stachenfeld — comes in. We’ve heard that during a firmwide Zoom call earlier this month, managing partner Terri Adler announced that D&S would be matching the DPW scale. In case you’ve somehow forgotten, this is what that salary scale looks like:

  • 2021: $202,500
  • 2020: $205,000
  • 2019: $215,000
  • 2018: $240,000
  • 2017: $275,000
  • 2016: $305,000
  • 2015: $330,000
  • 2014: $350,000
  • 2013: $365,000

Congratulations to everyone at Duval & Stachenfeld!

We depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

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Staci ZaretskyStaci 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.

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Elite Firm Will Require Vaccination, But Other Reopening Policies Are Very Flexible

One by one, Biglaw firms have announced plans to return to the office, but not many have announced that all associates must be vaccinated. The majority of firms have strongly encouraged vaccination, but firms that are outright mandating vaccination seem to be few and far between. Today, we have news on a firm that’s not only requiring vaccination, but also has a relatively flexible remote work policy as well.

This past Friday, Clifford Chance announced an agile working policy for its American offices, with a return to office-based working to start on September 13. That plan involves up to two remote days each week for both attorneys and business professionals (and time spent with clients outside the office will be considered time in the office). Once or twice a month, all employees will be expected to be in the office on specific days for specific events. The firm’s plan is relatively simple so that employees can “reap the benefits without heavy bureaucracy.” That’s a nice change of pace from what we’ve seen at most firms.

Next comes the firm’s vaccination policy, which is also short and sweet: get vaccinated by September 13 and get ready to provide proof. Similar rules will soon be implemented for clients and non-employees who expect to enter the firm’s U.S. offices.

Sources we’ve heard from at the firm say they’re pleased with the firm’s “very flexible and reasonable” new policies and really “appreciate” the firm’s stance on vaccination against COVID-19.

What has your firm announced as far as a reopening plan is concerned? The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to work.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.


Staci ZaretskyStaci 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.

Hospitals sue surgical robot maker, saying it forced them into restrictive contracts  – MedCity News

Several hospitals have filed class action antitrust lawsuits against Intuitive Surgical, one of the largest surgical robot makers, alleging that it used its market power to force them to sign restrictive repair contracts and buy replacement parts at inflated prices.

Despite limited evidence that they work better than other minimally-invasive surgeries, more hospitals are buying surgical robots. As of last year, Intuitive had installed 3,720 of its da Vinci surgical robots in the U.S., according to a filing with the Securities and Exchange Commission. These devices are expensive, costing up to $2.5 million each, and often come with thousands of dollars in additional annual costs.

In a complaint filed earlier this month, 13-hospital system Franciscan Health said it had to sign a five-year service contract,  which could be voided if it sought out third-party repair services for its da Vinci surgical robots. These services cost between $80,000 and $190,000 per year.

According to the lawsuit, as first reported on by Axios, one customer that had tried to use a third-party robot repair service found its device stopped functioning during an operation, forcing the surgeons to finish the surgery manually.

Franciscan Health alleged that some hospitals who try to use third-party services receive cease-and-desist letters from Intuitive threatening to refuse future maintenance, and in some cases, even threatening to disable the robot.

In a separate lawsuit filed this month, New York-based Kaleida Health said independent robotic repair companies also received cease-and-desist letters demanding that they not contact its customers to offer repair services.

Both lawsuits focused on limitations in maintaining and re-using EndoWrist surgical instruments that come with the robots. Each one comes with a series of attachments that resemble traditional laparoscopic surgical tools, such as a scalpel and scissors, but they also have an embedded chip to track how many times the device is used. In some cases, the instruments could only be used 10 times before the hospital had to purchase more devices, both lawsuits claimed.

In an emailed statement, Intuitive Surgical said it does not have the ability to shut down a surgical system during a procedure underway, but there are circumstances where the device might shut down if operated in an unsafe manner.

As for its restrictions on third-party repairs, the company cited risks in deviating from processes cleared by regulators.

“Continued use beyond the instrument’s determined useful life may reduce safety, precision and dexterity. Further, third parties may use incompatible or unvalidated parts or processes in servicing or repairing the systems, which could cause damage and put patient safety at risk,” a company spokesperson wrote in an email.

Still, these service contracts and accessories are a big source of revenue for Intuitive Surgical. It brought in $2.46 billion in instruments and accessories alone last year, and another $724 million in services, collectively making up more than half of its total revenue. 

Both class action lawsuits are seeking a judgment that Intuitive Surgical violated antitrust law, and treble damages.

The cases are Kaleida Health v. Intuitive Surgical Inc. and Franciscan Alliance Inc. v. Intuitive Surgical Inc. Both were filed in the U.S. District Court for the Northern District of California.

Image from flickr user Roswell Park

Trump’s Lawsuits Against Social Media Companies: What About ‘Typicality’?

(Photo by Evan Vucci-Pool/Getty Images)

A couple of weeks ago, Donald Trump filed putative class-action lawsuits against Facebook, Twitter, and YouTube (and their top executives) alleging that the social media companies violated the First Amendment when they banned Trump from their platforms.

Constitutional scholars promptly noted that the First Amendment applies only to governmental actors, not to private companies, and the complaints did not state a claim. No one’s ever confused me with a constitutional scholar, but that sounds about right to me.

Other commentators joined the fray, talking about discovery. If these lawsuits proceed into discovery, then Trump will have to give deposition testimony about his conduct before and after January 6. Although Trump says that he’d be happy to give that testimony, he’s bluffing. Cooler heads will prevail, and he won’t agree to testify under oath in civil cases against social media companies.

Within a year, either the courts will dismiss these lawsuits on First Amendment grounds or Trump will voluntarily dismiss the cases before his deposition is taken. You heard it here first.

But here’s another angle about which pundits have not yet spoken:  Typicality.

People who are speaking to the general public can talk only about the First Amendment and discovery, because those are topics that the general public can understand. Given my audience here at Above the Law, I can dig (just slightly) deeper. I assume that most readers of Above the Law know that cases can proceed as class actions only where the members of the class are sufficiently numerous, legal issues are common to the class, the class representative’s claims are typical of the claims of others in the class, and the putative class representative is an adequate representative of the class.

I’m focusing here on the third requirement of Federal Rule of Civil Procedure 23(a):  The so-called “typicality” requirement.  I have two thoughts.

First, I bet it’s terribly hard to prove that Trump’s claims are “typical” of other members of the putative class. Facebook and Twitter probably throw people off their platforms for a multitude of different reasons, and those reasons almost surely vary from person to person. Trump was suspended, I assume, because he fomented insurrection (or some such thing). Other members of the putative class were probably suspended because — and here I’m just guessing — they spewed racist or sexist stuff, they advocated the violent overthrow of the government, they published links to child pornography or directions on how to construct nuclear or biological weapons, and God knows what else. This is one of many areas where my imagination probably isn’t up to the task, but discovery will surely reveal that each person is banned from social media platforms for very individualized reasons.

Second, as a practical matter, why does Trump want himself to be deemed “typical” of this class? This class surely includes people from both ends of the political spectrum. I’m confident that Twitter and Facebook ban bomb-throwing anarchists and riotous communists of the left as quickly as the platforms ban white supremacists and would-be autocrats of the right.  Trump would be asking a court to decide that he was “typical” of a class of people that almost surely consists largely of lowlifes that the average person wouldn’t care to associate with, let alone be deemed typical of.

So here’s my bet: These cases will be dismissed, either by a court or by Trump voluntarily, before Trump’s deposition is taken. But, if I’m wrong, the typicality analysis will pose both a legal obstacle and a public relations nightmare for Trump.  Trump’s claims probably can’t be typical of this class, and he probably doesn’t want a court to hold that they are. That’s yet another reason why these lawsuits are doomed to fail.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Biglaw Firm Raises Salaries AGAIN, And Enhances Its Bonuses To Boot

This past spring, before Davis Polk entered the scene with its glorious $205K starting salary scale, numerous firms raised associate salaries in the wake of DLA Piper’s move to a national payscale (the former prevailing $190K salary scale) for all of its offices. Slowly but surely, other firms began to follow in DLA’s footsteps: first came Alston & Bird, then came King & Spalding, and third in line was Taft Law (the firm formerly known as Taft Stettinius & Hollister prior to its merger with Briggs and Morgan).

With salaries now even higher than they were in April when the firm made its move, Taft has decided to increase salaries yet again. Since the firm’s first set of raises weren’t effective until July 1, management is going to allow those to marinate for a bit before enacting its new salary structure, which will be effective October 1.

  • Chicago: From $190,000 to $195,000
  • Cincinnati, Columbus, and Dayton: From $135,000 to $140,000
  • Cleveland and Indianapolis: From $145,000 to $150,000
  • Minneapolis: From $150,000 to $180,000

Note that while all of these starting salaries aren’t matching the Davis Polk scale, that bump for Minneapolis associates really packs a punch.

According to a press release, in addition to increase for first-year attorneys, the firm will offer “corresponding increases in salaries for all associates throughout the firm, together with an enhanced firm-wide, incentive-based bonus program for all associates to reward both objective and intangible contributions to Taft.”

They may not be match the major market salaries, but more money is more money, so congratulations to all associates at the firm.

We depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.


Staci ZaretskyStaci 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.

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Law School Student Charged With Murder

Justin Medof (Las Vegas Metropolitan Police Department)

Last week, Las Vegas police arrested Justin Medof and charged him with one count of open murder with a deadly weapon in the death of his girlfriend, Stephanie Duarte, after responding to Medof’s 911 call. Medof claims that he called for help after awakening to find his girlfriend “beaten, bloody and unconscious” and was attempting CPR when authorities arrived. However, police say Duarte appeared to have died of blunt force trauma hours before.

According to tipsters and Medof’s own social media, he’s a Chapman Fowler School of Law student in the class of 2022.

Local Vegas media reports that Medof told police that the pair had gotten into a disagreement on Fremont Street. They arrived back at the hotel separately around two in the morning and guests reported sounds consistent with a loud fight for the next hour.

Medof is being held without bail. He is scheduled to appear in court again on August 2.

California man charged in death of girlfriend at central Las Vegas Valley motel [Fox 5 Vegas]
Man accused of beating girlfriend to death told police he woke to find her ‘beaten, bloody and unconscious’ [8 News Now]


HeadshotJoe 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.

Lawyer Heading To Jail After Telling Judge ‘F*ck You’

(Image via Getty)

There are some things — no matter how frustrated you may be in the moment — you just shouldn’t say to a judge. Pretty much the top of that list, is cursing out said judge. A lesson a St. Louis attorney is learning the hard way.

Missouri medical malpractice attorney Eugene H. Fahrenkrog Jr. has been ordered to spend a week in jail in a contempt order issued last week. According to the order, issued by St. Louis County Circuit Judge John N. Borbonus, the attorney told the judge, “Fuck you!”

Yeah, that’ll get you in some hot water.

From the order:

On July 14, 2021, at a scheduled hearing in the above-entitled Court and in the immediate view, hearing and presence of Circuit Judge John N. Borbonus, St. Louis County Circuit Court, Clayton, Missouri, Attorney Eugene H. Fahrenkrog, Jr., Missouri Bar Number 22309 did state directly to Judge John N. Borbonus, “Fuck you!”

As reported by Law and Crime, Borbonus went on:

“Said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt proceedings of this Court and to impair the respect due its authority,” the order filed the same day those verboten words left the lawyer’s lips alleges.

“Therefore, this Court having presented Eugene H. Fahrenkrog Jr. with oral notice of the act so charged, and this Court having presented Eugene H. Fahrenkrog Jr. with an opportunity to answer to the criminal contempt, the Court finds beyond a reasonable doubt is guilty of direct criminal contempt,” the order concludes before issuing directions to law enforcement to detain the attorney in the Department of Justice Services of St. Louis County “until released according to law or until further order of the Court.”

While the exact dispute that led up to the curse out isn’t known, it doesn’t matter much. As an attorney, a courtroom is your professional setting and the judge is the person in charge. So… yeah. Keep the f-bombs out of it.

As of Thursday, Fahrenkrog hadn’t begun his sentence.


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).