Category: News Feeds

The amicus brief in the Michael Flynn case is in, and it is scathing.

After the Justice Department moved to dismiss false statement charges against the president’s former National Security Advisor on the eve of sentencing, U.S. District Judge Emmet Sullivan appointed retired Judge John Gleeson, currently of Debevoise & Plimpton, to brief the court on the (im)propriety of the government’s actions, much to the chagrin of Attorney General Bill Barr, who had hoped to put an end to this unpleasantness and spare his boss the indignity of having to expend further political capital to bail out his pals from 2016.

There’s also the matter of whatever October surprise jowly Roy Cohn is cooking up with the Durham Report on the origins of the Russia investigation. Wouldn’t want to step on those headlines about a Russia hoax witchhunt with a reminder of the Trump campaign’s extensive contacts with the Kremlin and screamingly obvious attempts to cover them up!

The case has been on extended junket to the D.C. Circuit, where Judges Rao and Henderson agreed with the government assertion that the court lacks discretion regarding a motion for dismissal — it’s really a demand for dismissal, right Neomi? — only to be disdainfully overruled by their colleagues sitting en banc. 

Which brings us to today, where Gleeson delivered his assessment of the government’s eleventh-hour reversal after three years, during which the defendant pled guilty and admitted to the charges under oath at least three times.

To describe the Government’s Motion to Dismiss as irregular would be a study in understatement. In the United States, Presidents do not orchestrate pressure campaigns to get the Justice Department to drop charges against defendants who have pleaded guilty—twice, before two different judges—and whose guilt is obvious. And the Justice Department does not seek to dismiss criminal charges on grounds riddled with legal and factual error, then argue that the validity of those grounds cannot even be briefed to the Court that accepted the defendant’s guilty plea. Nor does the Justice Department make a practice of attacking its own prior filings in a case, as well as judicial opinions ruling in its favor, all while asserting that the normal rules should be set aside for a defendant who is openly favored by the President.

OUCH.

The president has publicly pressured the Justice Department to drop charges against his former NSA for years. As Gleeson notes, the Special Counsel investigation was arguably triggered by Donald Trump’s request that then-FBI Director James Comey “go easy” on Flynn back in February of 2017. Moreover, the government’s assertion that it is just treating Flynn like any other defendant is belied by Barr’s personal intervention in the Flynn case and that of Trump’s longtime pal Roger Stone, who was later pardoned.

Is there another federal defendant who has confessed multiple times to the crime, whose conduct is not in doubt, who has received the benefit of counsel, and against whom charges were dropped post-plea because the government decided it might not be able to prove the conduct already admitted to under oath? Come on.

“It is hard to imagine another case in which the Government has employed such specious reasoning to cast doubt on its own case,” Gleeson notes.

The Justice Department argued that it was entitled to a dismissal of the case without having to explain its reversal after years of arguing that Flynn’s lies to FBI agents about his communications with the Russian ambassador were both deliberate and material. Despite the manifest irregularity of the Department’s conduct, any interrogation of its position is an illegal encroachment on executive authority, they insist.

Gleeson disagrees, writing, “While the Executive is entitled to protect its privileges and deliberations, it is not entitled to offer pretextual reasons and demand that the Court mechanically accept them.”

Later he adds, “As demonstrated by history, Rule 48(a)’s requirement that the Government explain itself exists partly to smoke out the corrupt dismissal of criminal charges against the politically well-connected precisely because they are well-connected.”

Beyond interrogating the government’s motives for dismissing the case, Gleeson urges Judge Sullivan to penalize Flynn for his false statements under oath, both regarding his own conduct, and in accusing the Justice Department of extorting a plea by threatening Flynn’s son.

“The Court can now restore fairness and impartiality to the administration of justice by denying the Government’s motion and accounting for Flynn’s perjurious conduct at the sentencing stage,” he wrote.

So the Flynn case lives to fight another day. Countdown to that pardon in 3…2…

Reply Brief for Court-Appointed Amicus Curiae [USA v. FLYNN, No. 1:17-cr-00232-1 (D.D.C. Sep 11, 2020)]

---

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

An APOLOGY, that is how I start 30-60% of my emails. 

My inboxes, DMs, and chats “feel like an avalanche falling on your head.”

INBOX ZERO

It is NOT meant to reference an actual number of messages in your inbox. 

⚠️ Merlin Mann: it is “the amount of time your brain is in your inbox.”  

Time and attention are finite.

Inbox is NOT a “to do” list. 

❓ What is your best Inbox Zero tip?

---

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

During a 1997 investor-state dispute, a Canadian attorney noted that “it wouldn’t matter if a substance was liquid plutonium destined for a child’s breakfast cereal. If the government bans a product and a U.S.-based company loses profit, the company can claim damages under NAFTA.” The corporate lawyer’s statement summarizes the power of Investment State Dispute Settlement (ISDS) systems, which allow corporations to sue governments in secretive ad hoc tribunals. How depressing that international white-shoe firms continue to push corporations toward claims that threaten to undermine the public good. With the help of their lawyers, corporations are preparing to shake down governments around the world for adopting regulatory measures addressing the health and economic effects of the COVID-19 pandemic.

For decades, economists and human rights advocates have argued against the inclusion of ISDS clauses in free-trade deals. The tribunals allow foreign companies to extract dubious lost or expected profits from governments that have promulgated regulations involving water access, land rights, and labor disputes. The governments cannot exert their own claims to fight violations by corporations because the tribunals create one-way rights. Moreover, the ISDS system has often exposed weaker economies to the greed of investors involved in third-party litigation funding. No wonder that a former European Union trade commissioner once declared ISDS as the “most toxic acronym in Europe.”

The efforts to reform investor-state legal mechanisms are too slow. As the Columbia Center on Sustainable Investment (CCSI) argued in May, we need an immediate moratorium on all ISDS claims during the COVID-19 pandemic and its aftermath. As autumn approaches, there is no doubt that governments need to continue directing their capital and legal resources to the public health emergency. Law firms, however, have ignored the alarm from the CCSI and 650 other civil society groups. For example, Ropes & Gray has been working on pro bono COVID-19 matters while alerting paying clients to consider actions under investment treaties. As Anand Giridharadas, who critiques the way elites treat philanthropy, has said: the arsonists are not, in fact, the best firefighters.

Professor Robert Howse at the New York University School of Law tweeted that “we need to start getting the World Bank, IMF on side to establish that debtor countries w[ith] Covid-fragile economies should NOT be paying ISDS awards.” Enforcement jurisdictions, Howse argued, need to take legal actions to bar ISDS payouts. Similarly, we need major law firms to reconsider their international practices. It is difficult to imagine that corporations would sue and expect damages from governments over COVID-19 regulations without the aggressive and nauseating marketing from firms.

As a recent law graduate, I recognize that there is a role for law students and professors to play here as well. As the pandemic disrupts the fall semester and bar examinations, the legal academic community must speak up against the egregious ISDS practices. They can refuse to let ISDS profiteers recruit on-campus during the crisis. The Me Too-related campaign that started on law school campuses to end the use of mandatory arbitration clauses at Orrick, Skadden, and other firms also serves as a practice guide for how law students can monitor corporate behavior.

As we reach almost 1 million deaths worldwide and 30 million COVID-19 cases, we cannot afford to let corporate lawyers weaken public health efforts. How lawyers shape their international practices over the next few weeks matters.

---

In early 2016, the cable industry quietly launched one of the most misleading and successful lobbying efforts in the industry’s history. The target? A plan concocted by the former FCC that would have let customers watch cable TV lineups on third-party hardware. Given the industry makes $21 billion annually in rental fees thanks to its cable box hardware monopoly, the industry got right to work with an absolute wave of disinformation, claiming that the FCC’s plan would put consumer data at risk, result in a “piracy apocalypse,” and was somehow even racist (it wasn’t).

At one point, the industry even managed to grab the help of the US Copyright Office, which falsely claimed that more cable box competition would somehow violate copyright. Of course the plan had nothing to do with copyright, and everything to do with control, exemplifying once again that for the US Copyright Office, public welfare can often be a distant afterthought.

Once in office, the Pai FCC dutifully got to work dismantling the Wheeler-era FCC proposal, coordinated with and justified by cable providers which promised their own “free market alternatives” would make the proposal irrelevant. More specifically, they promised that you’d be able to order Comcast or Spectrum’s cable lineup through an app, making cable boxes irrelevant. But this promised alternative never showed up:

“Last June, Big Cable made an appealing offer for viewers and regulators. Companies would provide consumers with free apps to watch TV rather than making them pay monthly fees for cable boxes. But the cable companies didn’t do this out of the kindness of their hearts — they wanted to stop the Federal Communication Commission from passing regulations making them ship apps.

A year after that “Ditch the Box” pledge, two things have changed. There’s now zero threat of federal regulators requiring cable operators to give subscribers free apps to replace rented boxes, and the industry’s “Ditch the Box” plan seems to have disappeared.”

Funny how that works. This week the FCC put the finishing touches on scuttling the proposal, while also eliminating the need for cable providers to support CableCARD, technology that lets you avoid buying a traditional cable provider cable box, and instead using hardware like TiVo. It’s a tech the industry always under-supported because it took revenue away from cable box rentals. And now that too is largely dead, buried under (false) claims it was no longer necessary because streaming is now so gosh darn competitive:

“In explaining why it killed off Wheeler’s plan for good last week, the FCC largely regurgitated cable industry talking points. The agency said it had “serious and unresolved concerns” about security and copyright protection (concerns that consumer advocacy groups have disputed), and reiterated the same argument it used against CableCARD: Customers already have the ability to watch cable programming on their streaming devices, so there’s no need for more regulatory intervention.”

While it’s true that streaming providers have brought some helpful competition to the sector, much of the content is still owned by consolidated telecom/cable/media giants like AT&T Time Warner and Comcast NBC Universal. And while they’re very slowly losing their dominance thanks to cord cutters, these gatekeepers have enough power that they’re still doing everything in their power to lock you inside their walled gardens, tracked by their data tracking systems, using clunky old cable boxes if you want the “best experience”:

“Sure, if you’re a Comcast subscriber, you can use the Xfinity Stream app in place of a cable box on Roku devices, Samsung TVs, and LG TVs. But that same app isn’t available on other streaming platforms such as Apple TV, Amazon Fire TV, Android TV, or Chromecast. A report last year by BestAppleTV claimed that Comcast is more interested in building up its own X1 platform than supporting more third-party alternatives such as Apple TV, and while Comcast disputed the story, it hasn’t launched any new streaming apps in more than a year.

Likewise, if you’re getting TV service through Spectrum, you can use the Spectrum app on Roku, Apple TV, Samsung TVs, and Xbox One consoles, but not on Fire TV, Android TV, or Chromecast. Meanwhile, Dish Network only offers live TV and DVR on Amazon Fire TV devices.”

The ideal solution to this problem continues to be to vote with your wallet and cut the cord. But for those who can’t do so (due to a desire to watch live sports, or lack of a fast, uncapped broadband line for streaming), you’re still going to find yourself stuck, more often than not, renting a dated, crappy, expensive, locked-down cable box. And with the FCC’s help, the cable industry continues to work overtime to ensure that’s the most expensive proposition possible, charging you major monthly fees to use their cheap, clunky, proprietary, locked-down hardware.

FCC Formally Kills Rules That Would Have Brought Competition To The Cable Box

More Law-Related Stories From Techdirt:

Addison Cain Really Doesn’t Want You Watching This Video About Her Attempts To Silence Another Wolf Kink Erotica Author
Could A Narrow Reform Of Section 230 Enable Platform Interoperability?
T-Mobile Merger Approval Violated Every Last One Of the DOJ’s Updated ‘Antitrust Principles’

In the world of Biglaw, things are getting better. Many law firms are reversing their Covid cuts, in whole or in part, and are expecting 2020 to be better than they expected (at least during the dark days of March).

As Zeughauser Group consultant Kent Zimmermann predicted to Dan Packel of the American Lawyer, while maybe 20 percent of Am Law 100 firms will see a significant hit to revenue and profits, more than half will be within 5 percent of last year’s numbers (in either direction). And a small group of firms, perhaps those with busy bankruptcy and restructuring practices, could see profits per partner increase.

Besides the reversal of austerity measures, another sign that law firms are faring better than many expected in the spring is the uptick in lateral hiring. Here at Lateral Link, we have been meeting with more and more firms to discuss their return to the talent market — and no, it’s not just all bankruptcy. (For example, if you’re a midlevel capital markets associate interested in joining a thriving, top-tier practice in New York, please drop me a line.)

With fall just around the corner, and with firms getting a better sense of their priorities for both the rest of this year and next year, new lateral searches are opening up. Some of these are publicly posted on firms’ websites, and some are needs that firms have mentioned to select recruiters whom they trust (and here at Lateral Link, we are lucky enough to be trusted by many top Biglaw firms and boutiques).

To take advantage of the lateral hiring that we are already starting to see, which we expect to continue to the end of this year and into next year (knock wood), we have made a number of great additions to our team. Without further ado, we proudly present:

1. Melissa Cohen (Atlanta). Melissa specializes in placing general counsels, other in-house lawyers, and equity partners, domestically and internationally. Like many of Lateral Link’s consultants, she is a former practicing lawyer and a seasoned legal recruiter, with a track record of success in both Australia and the United States. She earned her law degree from Florida Coastal School of Law and lives in Atlanta with her husband, Sam, and mini-Schnauzer, Tory (her true love).

2. Stephen Damato (Washington, D.C.). Before entering recruiting, Stephen practiced as a corporate associate in Gunderson Dettmer’s Boston office and an M&A and private equity associate in Jones Day’s New York office. He graduated from the University of Pennsylvania and Georgetown University Law Center, cum laude. He is an avid D.C. sports fan (Washington Capitals above the rest) and is forever working on his golf game. (For more on Stephen, read my earlier interview with him.)

3. Michelle Fassberg-Lush (Los Angeles). A graduate of USC’s Gould School of Law and a member of the California bar, Michelle focuses on partner placements at leading law firms, while also handling in-house and associate placements. A former law firm and in-house lawyer herself, Michelle leverages her knowledge and experience to make successful placements.

4. Jennifer Lemberger (Miami). Jennifer, a South Florida native, earned her law degree from Nova Southeastern University Law, passed the bar, and worked in real estate for several years. She then began her recruiting career in Washington, D.C., placing attorneys, contract managers, and paralegals into law firms and corporate legal departments. She resides with her husband and daughter in Miami, where in her free time she enjoys playing tennis and cheering on her Florida Gators.

5. Megan Penrod (Washington, D.C.). After earning her J.D. from Saint Louis University School of Law, where she received a certificate in health law from the nation’s premier health law program, Megan lived and worked in Washington, Houston, and Austin, before starting her legal recruiting career in 2017. Outside of work, Megan enjoys writing, reading, spending time with her golden retriever, perfecting new recipes, and playing the piano.

6. Karen Wenzel (Minneapolis). Karen is a Midwest-based recruiter with a background as a corporate attorney in both private practice and in-house. She graduated from the University of Minnesota Law School, where she served as a Managing Editor of the University of Minnesota Law Review. Karen practiced at the law firm now known as Lathrop GPM in Minneapolis, then worked in-house with two Fortune 500 companies, also in the Twin Cities. She and her husband are the proud parents to a son and a daughter.

And we are very proud of the newest additions to our team. Please feel free to reach out to Melissa, Stephen, Michelle, Jennifer, Megan, or Karen. They are eager to hear from and work with you, whether you are an employer seeking great talent or a lawyer seeking a new opportunity. Despite all the turmoil in the world, today is actually an excellent time to be in the market — so don’t let it pass you by.

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a managing director in the New York office, where he focuses on placing top associates, partners and partner groups into preeminent law firms around the country.

Prior to joining Lateral Link, David founded and served as managing editor of Above the Law. Prior to launching Above the Law, he worked as a federal prosecutor, a litigation associate at Wachtell Lipton Rosen & Katz in New York, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. David is a graduate of Harvard College and Yale Law School. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

---

Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

I appreciate the President’s confidence in listing me as a potential Supreme Court nominee. But as I told the President, Missourians elected me to fight for them in the Senate, and I have no interest in the high court. I look forward to confirming constitutional conservatives.

— Senator Josh Hawley (R-MO), in a tweet following his inclusion on President Donald Trump’s latest shortlist of 20 potential U.S. Supreme Court nominees. Hawley, 40, is a Yale Law graduate and is the youngest current U.S. senator.

---

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.

Denise George, the attorney general of the U.S. Virgin Islands, is leaving no stone unturned in her quest for justice for all of the children in whose sex Jeffrey Epstein trafficked on his private not-so-virgin island in the U.S. territory. And every stone she turns seems to have a prominent hedge or private equity fund or their leaders under it. And so out go subpoenas to Leon Black and Apollo Global Management. And, of course, out go subpoenas to Highbridge Capital Management, whose sale to JPMorgan Chase was for some reason arranged in at least part by Epstein, when he wasn’t busy having sex with and/or pimping out children. And also to Eva Andersson-Dubin, an Epstein ex-girlfriend and wife of Highbridge founder Glenn Dubin.

Of all the revelations to come out of the pandemic, one of the most troubling has to be the toxic brew of laziness and vacuousness that dominates so many state supreme courts. Faced with a deadly affliction, cruel and arbitrary delays, and a well-meaning but seemingly broken online bar exam plan, an emergency diploma privilege regime at least deserves consideration. That it’s supported by so many academics and practitioners, with new research concluding that it would pose no threat to the public, only strengthens the seriousness of the proposal.

And yet, we keep seeing state supreme courts meet these petitions with intellectually empty opinions, if we get an opinion at all. No matter how much of a no-brainer these requests may seem, denying these petitions isn’t nearly as troubling as the refusal to engage them. Instead, courts have shrugged their shoulders and refused to subject themselves to the arduous task of justifying their reasoning. This is disappointing since “explaining their reasoning” is, like, 90 percent of a state supreme court’s job.

Yesterday, Pennsylvania’s Supreme Court — a state where the state bar association was already on board with diploma privilege — joined the party by responding to a lengthy and well-evidenced petition for diploma privilege with the following considered order:

That’s it. That’s the whole decision. I’d say, “that’s it, that’s the tweet” but it’s longer than a tweet… by a mere 25 percent.

Say what you will about Minnesota’s opinion but at least they garbled out some nonsense for a few pages to make it look like they tried. This is a complete abdication of the court’s duty. The Pennsylvania Supreme Court was more professionally engaged when they were looking at porn all day on the taxpayer’s dime.

And remember, the Pennsylvania diploma privilege petition was one of the most detailed and weighty petitions to date, hinging on the NCBE’s own statements that claimed online exams would not pass muster as proper professional gatekeeping instruments. Without the NCBE’s imprimatur, any unproven half-measure would violate Pennsylvania’s constitutional restriction on restraining the pursuit of one’s chosen trade. In other words, the bar exam is only constitutional because the NCBE pumps out ample psychometric data to justify it that the courts can say the exam clears the heightened threshold for a restriction and without that, the online exam is unconstitutional. It’s a very clever argument that had the benefit of being accurate. The respondents certainly couldn’t figure out a good answer.

At the time it was hard to imagine how the court would navigate these arguments and come up with a solution that allowed the online exam to pass muster under the court’s own standard.

Little did we know that the court would solve the riddle by simply ignoring it.

Earlier: New Petition Uses NCBE’s Own Logic To Support Diploma Privilege Bid
Bar Examiners Attempt Mind Trick On Diploma Privilege Petition, Fail

---

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.

No matter how big or successful a law firm is, the pandemic took no prisoners when it came to the economic upheaval it caused. Even the world’s largest law firm — the Biglaw behemoth known as Dentons — fell prey to COVID-19’s casualties.

Back in May, the megafirm made compensation cuts across the board, including a reduction in draws of at least 20 percent for partners (and in some cases, a reduction much higher than 20 percent for the firm’s most highly compensated partners) and progressive salary cuts for lawyers and staff, starting at 0 percent and reaching 20 percent for those who earn more than $190,000. At the time the original cuts were made, Dentons announced that a “bonus mechanism process” would be rolled out to ensure that high performers during the pandemic would be able to recover some — or all — of their salary cuts.

In a memo sent out earlier this week, after four months of living through its austerity measures, the firm announced that it would be reducing those compensation cuts by half for everyone, ranging from staff to partners. Dentons is keeping its bonus plan in play, and all payouts will depend on the firm’s overall financial performance in 2020.

At the same time Dentons announced it was dialing back its salary cuts, the firm also announced a voluntary retirement program for business services staff and paralegals. As noted earlier here at Above the Law, many Biglaw firms are looking to cut headcount, and buyouts are the kinder, gentler way of doing so (opposed to layoffs).

We wish all of the legal professionals at Dentons who accept and are approved for the buyout the best of luck should they seek new jobs in the legal industry. Congratulations to everyone else on the restoration of the bulk of their salaries.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

---

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.

Back in 2018 at the Academy Awards ceremony, Francis McDormand called attention to something called an inclusion rider as a way to increase diversity in Hollywood during her acceptance speech for Best Actress. In the latest episode of The Jabot podcast, I chat with Kalpana Kotagal, partner at Cohen Milstein, and co-author of the Hollywood “inclusion rider.”

We talk about what it was like when her work was suddenly thrust onto the national stage, the importance of networking, how the principles behind the rider can be applied to other industries (particularly the legal industry), and practical tips for dealing with inequality in the workplace.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

---

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).