How Can Biden Get More Federal Judges On The Bench? Make Senior Status More Appealing

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.


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.

Sidney Powell Stars In Process Server Edition Of ‘Catch Me If You Can’

(Photo by Drew Angerer/Getty Images)

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?


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.

Get The Knowledge You Need During The ‘New Normal’ Of Remote Work

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.  

‘I’m Not A Cat’: The Best Zoom Court Mishap Yet

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.


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.

Fox News Offers A ‘We’re Left-Wing Journalist Cucks’ Defense In Smartmatic Suit

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.)


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.

HBR Releases Interactive Library Benchmarking Survey With COVID Insights

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.


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.

Biden Cleans House At DOJ

(Photo by Drew Angerer/Getty Images)

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]


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

Stanford Law Review Elects Its First Iranian-American, Muslim President

Stanford Law School (Photo by King of Hearts via Wikimedia)

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]


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.

Top Law School Announces On-Campus Interviews Will Return To The Summer

It’s become downright trite to say COVID-19 has “massively changed” some aspect of everyday life we used to take for granted. Seriously, anyone who has been around for the last year or so already knows that — hell, even infants know something’s up. But with everything thrown into a tizzy, it is easy to forget all the “massive changes” that have been racked up, unless they directly impact you. That’s just the normal way human brains deal with overwhelming amounts of information. So, unless you’re actively involved in law student recruitment, how it’s being dealt with in pandemic time easily could have slipped your mind.

Anyway, back in the spring of 2020 (when we are so naive that many believed the length of the pandemic would be tracked in weeks, not years), many law schools and Biglaw firms made the move to change the dates of their on-campus interviews. Most elite law schools traditionally have a week in the late summer/early fall dedicated to getting top Biglaw firms in search of the next generation of legal talent to meet with their rising 2Ls for summer associateships following the upcoming academic year. But as in-person meetings and non-essential travel were verboten in August 2020, those were largely pushed to January.

That’s what happened at Duke Law. But even though hiring for summer 2021 was moved, folks wondered what would happen for summer 2022 hiring. With slow vaccine rollout, that Zoom-life isn’t going anywhere anytime soon but Duke has decided how it’ll handle the next recruiting season.

Rather than stick with the later January date, Duke is moving back to August for on-campus interview week. Though, as detailed in the email below, the August OCI will still be virtual.

While we haven’t heard much about how other top law law schools will handle the next recruitment season, I predict they’ll also move back to the summer. There’s a bit of a herd mentality, and if this is what one elite law school is doing, others are sure to follow.


headshotKathryn 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).

Judicial Notice: February 6, 2021

A courtroom in the Pioneer Courthouse in Portland, Oregon (photo by David Lat).

Ed. note: This column originally appeared on Original Jurisdiction, the new Substack publication from David Lat. Judicial Notice is a weekly review of notable legal news that appears each Saturday. You can register to receive Judicial Notice and other updates from Original Jurisdiction through this signup page.

As Original Jurisdiction hits the two-month mark, I’m happy to report that I’m just a few readers shy of 2,000 subscribers. Thanks to all of you for subscribing and helping to spread the word.

Now, on to the news.

Lawyer Of The Week: New York State Senator Brad Hoylman

The obvious picks for LOTW honors would be the lawyers involved in the Trump impeachment trial — the nine house managers, all lawyers; their outside advisors, including Barry Berke and Joshua Matz; and Donald Trump’s defense team, including Bruce Castor and David Schoen. But you don’t read Judicial Notice to learn about the obvious.

So I’m going in a different direction and naming New York State Senator Brad Hoylman, a Rhodes Scholar and Harvard Law School graduate, as Lawyer of the Week. Hoylman, Chair of the Senate Judiciary Committee, just secured the repeal of New York’s notorious “walking while trans” law — an overbroad anti-loitering statute that gave rise over the years to police abuse and harassment, especially of women of color, many of them transgender. Hoylman — a Democrat who represents the 27th District, and a member of the LGBTQ community himself — was lead sponsor of the bill, which was sponsored by Amy Paulin in the Assembly.

As you might expect from a lawyer, Hoylman looks out for the legal profession as well. He’s also the lead sponsor of Senate Bill S8682A, which would create a form of diploma privilege in New York State, sparing thousands of law school graduates from having to take the bar exam in the midst of the coronavirus pandemic — an increasingly popular option given the challenges of administering a bar exam during a global public health crisis.

Runner-up: Perkins Coie associate Zachary Newkirk, who will appear on Jeopardy’s tournament of champions later this year after winning almost $125,000 over six episodes in 2020. Good luck, Zachary!

Judge Of The Week: Judge Lynn Hughes

Judge Lynn Hughes (S.D. Tex.) strikes (out) again. As reported by Alison Frankel of Reuters (via Howard Bashman of How Appealing), the frequently reversed Judge Hughes just got benchslapped yet again by the Fifth Circuit, this time in Miller v. University of Houston. These tweets, by Raffi Melkonian and Orin Kerr, say it all:

You can read the full opinion here (also via Howard). It’s a doozy.

Runners-up: Judge Juliet Howard and Judge Norma Jennings, both of New York City Housing Court. When Judge Howard takes the bench later this month, they will become the first married same-sex couple appointed to the same court in New York, according to the Richard C. Failla LGBTQ Commission of NY Courts. Matthew Skinner, executive director of the Commission, commented that the duo “really add something wonderful to the bench in New York City.” Congratulations, Your Honors!

Ruling Of The Week: Tsao v. Captiva MVP Restaurant Partners LLC

The Supreme Court issued some interesting rulings this past week. It gave California churches partial relief from COVID-19 restrictions, ruled in favor of Germany in a closely watched case over Nazi-era art, and held that federal courts can review an administrative board’s refusal to reopen a case denying disability benefits to a railroad worker. That third case, Salinas v. U.S. Railroad, was the first 5-4 ruling in an argued case this Term, and the line-up was interesting; Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal justices to rule for the plaintiff.

But big-ticket rulings from SCOTUS are obvious. And, as noted, you don’t come here for the obvious.

So for Ruling of the Week, I’m actually going with the Eleventh Circuit’s decision in Tsao v. Captiva MVP Restaurant Partners LLC, which I’d file under “seemingly boring but actually important.” The case presented two questions. First, did plaintiff Tsao, patron of a fast-casual restaurant chain whose information was stolen in a data breach, have standing to sue because of exposure to the future risk of identity theft, absent any actual misuse of his information? Second, were Tsao’s efforts to mitigate the risk of future identity theft, such as canceling a compromised credit card (and losing out on reward points), a concrete injury sufficient to establish standing?

Judge Gerald Bard Tjoflat, writing on behalf of himself and Judge William B. Traxler (4th Cir.), answered no to both questions. Judge Adalberto Jordan concurred in the judgment, ending his concurrence by all but begging SCOTUS to get involved: “Hopefully the Supreme Court will soon grant certiorari in a case presenting the question of Article III standing in a data breach case.”

I believe that the Court will — and should — take such a case. As practicing litigators know, standing, which might seem dry and boring, is actually of critical importance. And as data breaches become increasingly common, the issue of who can sue over a breach and when will only grow in significance.

Litigation Of The Week: State Attorneys General Versus McKinsey

McKinsey & Company, the Cravath of management consulting, just announced a massive $573 million settlement with the attorneys general of 47 states, the District of Columbia, and five territories. The settlement resolves investigations into McKinsey’s role in helping its clients “turbocharge” their opioid sales, which fueled the opioid epidemic in the United States. The company also struck separate deals with Washington State, for $13 million, and West Virginia, for $10 million. (Nevada has not settled and continues to pursue its own opioid investigation.)

As noted by the New York Times, the settlement is striking because it’s rare to see McKinsey held accountable for its work on behalf of clients — clients who, McKinsey likes to stress, receive McKinsey advice but ultimately make their own decisions. The terms of the settlement are also noteworthy: although McKinsey admits no wrongdoing, which is standard for such deals, it agreed to abide by court-ordered restrictions on its work with certain addictive narcotics, to retain emails for five years, to disclose potential conflicts of interest when bidding for state contracts, and to put tens of thousands of pages of documents about its opioid work onto a publicly available database.

This settlement, while sizable and sweeping, does not represent the end of McKinsey’s legal woes. It doesn’t preclude local governments from suing the consulting giant, nor does it bind the federal government — so stay tuned to see whether the Biden administration takes action.

Speaking of the Biden administration, my first runner-up for Litigation of the Week is the Department of Justice’s lawsuit against Yale University, challenging the school’s affirmative action policy as discriminating against white and Asian-American applicants — a lawsuit the new administration just dropped. Keep an eye out for similar shifts in government positions over the weeks and months ahead.

Second runner-up: election technology maker Smartmatic’s $2.7 billion lawsuit against Fox News and three of its anchors, Maria Bartiromo, Jeanine Pirro, and Lou Dobbs (now a former Fox anchor). The 276-page complaint was filed on Smartmatic’s behalf by J. Erik Connolly of Benesch, Friedlander, Coplan & Aronoff LLP. (In case you’re wondering why Smartmatic filed in New York Supreme Court rather than in a federal court, it’s because Smartmatic and Fox News, both Delaware corporations, lack diversity.)

Deal Of The Week: Stone Point Capital And Insight Partners Buying CoreLogic

On Thursday, a pair of private equity firms, Stone Point Capital LLC and Insight Partners, announced their purchase of real estate-data provider CoreLogic Inc. for $6 billion — a handsome 51 percent premium to CoreLogic’s share price last summer, which is when shareholder activists showed up on the scene and started making noise.

Congratulations to the three law firms advising the principals: Skadden Arps for Corelogic, Kirkland & Ellis for Stone Point, and Willkie Farr for Insight. But note that the deal isn’t quite done yet. Rival bidder CoStar Group Inc., another player in the real estate-data space, is reviewing its options — which could include a new bid or a proxy fight. So more work for law firms might still be on the way.

Runner-up: Bayer AG’s $2 billion settlement of future claims that its widely used weedkiller, Roundup, causes cancer. Settlements of litigations are, of course, deals — and sometimes the dollar amounts involved can dwarf those of M&A or capital markets transactions.

Law Firm Of The Week: Kaplan Hecker & Fink

This week, whenever there was some interesting legal matter in the news, lawyers from Kaplan Hecker & Fink — the elite New York boutique led by Robbie Kaplan, Sean Hecker, and Julie Fink — were there.

On Tuesday, the House impeachment managers delivered their 77-page brief laying out their case against former President Donald Trump. Although former KHF partner Joshua Matz is mentioned only in the final footnote thanking him for his “invaluable assistance,” Matz — who, along with Professor Laurence Tribe, literally wrote the book on impeachment — surely played a major role in this effort. (Matz is working on the impeachment trial in his personal capacity — just as he did when he worked on Trump’s first impeachment trial, he resigned from Kaplan Hecker & Fink before going to help out the House managers — but don’t be surprised if he returns to the firm yet again when this is all over.)

Also on Tuesday, Pornhub issued a statement announcing what it described as “a series of industry-leading safety and security policies,” which it enacted in the wake of a scathing New York Times expose alleging that the online porn purveyor essentially turned a blind eye to the proliferation of illegal content on its platform. The new policies and procedures reflect the results of KHF’s independent review of Pornhub’s moderation procedures and other safety protocols. Some might find representing a porn platform to be distasteful — but like it or not, porn isn’t going away anytime soon, so it’s important to make sure that what’s out there is legal and consensually produced.

On Wednesday, Judge Norman Moon (W.D. Va.) set an October 25 trial date for Sines v. Kessler, the landmark litigation brought by KHF against the neo-Nazis and white supremacists responsible for the August 2017 Charlottesville car attack that killed Heather Heyer and injured 19 others. The lawsuit, first filed back in 2017 by Robbie Kaplan and Karen Dunn (then of Boies Schiller Flexner), raises the interesting and important issue of where to draw the line between protected free speech and illegal incitement to violence.

When I interviewed Robbie Kaplan back in 2017 about the launch of her new firm, she spoke about her desire “to fuse together a private commercial practice with a public interest practice for the mutual benefit of both.” Almost four years into the venture, it looks like she and her team are doing just that.

Lateral Move Of The Week: Biglaw Spawning Boutiques

We’re still in the first quarter, so not surprisingly, lateral movement remains brisk. The intellectual property space was especially active. Jenner & Block hired three partners — Mark Davis and Ron Pabis from Goodwin Procter, and Alex Hadjis from Oblon, McClelland, Maier & Neustadt — to launch an International Trade Commission (ITC) practice group. And two former administrative patent judges of the Patent Trial and Appeal Board (PTAB) found new gigs: Phil Hoffmann joined Ropes & Gray as a senior attorney, and Scott Kamholz left Covington & Burling, where he had been of counsel, to join Flagship Pioneering’s Tessera Therapeutics as vice president of intellectual property.

There were also a number of notable office openings, fueled by partner poaching. K&L Gates launched in Nashville, after hiring 27 attorneys from area firms Waller Lansden Dortch & Davis, Butler Snow, Dickinson Wright, and Bass, Berry & Sims; Quinn Emanuel launched in Atlanta, after hiring antitrust partner Debra Bernstein from Alston & Bird; and Holland & Knight launched in Orange County, California, after hiring seven litigators previously with the Enterprise Counsel Group.

But I think the biggest moves of the week were three groups breaking away from Biglaw to launch boutiques. This continues what I see as a decade-long trend of partners leaving large firms in search of more autonomy, more collegiality, fewer conflicts, less overhead, and — at least in some cases — more money. Specifically:

  • Eight partners, including international arbitration practice founder and head Emmanuel Gaillard, left Shearman & Sterling to form Gaillard Banifatemi Shelbaya Disputes. The new firm, which will have offices in Paris, London, and New York, will reportedly take with it some $30 million to $40 million in revenue, as well as 30 or so associates. (They seem to be leaving on good terms; Shearman even issued a press release about the departures.)
  • Seven partners — Andrew Glenn, Lyn Agre, Jed Bergman, Trevor Welch, Olga Fuentes, Michael Bowen, and Marissa Miller — left Kasowitz Benson to form Glenn Agre Bergman & Fuentes. The new firm is subletting space from Boies Schiller Flexner in New York and San Francisco, and Glenn Agre and Boies Schiller plan to work on cases together as well. (Name partner Olga Fuentes is married to Boies Schiller partner Peter Skinner.)
  • Former Texas Solicitor General Scott Keller left Baker Botts, where he served as head of the firm’s Supreme Court practice, to form Lehotsky Keller with Steven Lehotsky, who left his role as chief litigation counsel at the U.S. Chamber of Commerce. Both former Supreme Court clerks (Keller for Justice Anthony M. Kennedy and Lehotsky for Justice Antonin Scalia), they will focus on complex litigation, including practice before the Supreme Court and challenges to federal and state laws and regulations.

Congratulations to these three exciting new firms. Several developments over the past decade or so, including improvements in ediscovery technology and the rise of vendors and alternative legal service providers who focus on large-scale discovery, have made high-end litigation much easier to handle without all the bodies of Biglaw. You just need the brainpower — which is why I’m betting on boutiques as the future of high-end, cutting-edge litigation.


DBL square headshotDavid Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. You can read his latest writing about law and the legal profession by subscribing to Original Jurisdiction, his Substack newsletter. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. Before entering the media and recruiting worlds, David worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.