Category: News Feeds

So, we uh, well, we really went after Jones Day yesterday. And I regret nothing. If you try to overturn the results of a free and fair election with courtroom machinations, well, you’re going to piss some people off.

But between the New York Times article blowing them up, and the Lincoln Project promising an ad campaign targeting not just the Biglaw firm over its election litigation, but their clients too, well, it couldn’t have been a good day to work in their PR office. And Above the Law tipsters from all around Biglaw were noticing the cracks in the firm’s armor.

Like folks taking note of their social media presence during the controversy:

FYI, just thought you should know Jones Day’s Twitter is getting filled with negative comments. Their LinkedIn posts was also getting filled with negative comments until Jones day deleted them all and disabled the comment function!

And quite a few people noted that the firm’s servers seemed unable to keep up with the sudden deluge of attention.

When their website was finally up and working, a link to a Jones Day Statement Regarding Election Litigation appeared. Oh, this’ll be good.

First off, Jones Day issued a strong, categorical rebuke of the negative coverage:

Jones Day is not representing President Trump, his campaign, or any affiliated party in any litigation alleging voter fraud. Jones Day also is not representing any entity in any litigation challenging or contesting the results of the 2020 general election. Media reports to the contrary are false.

Wow. Well, then let us be the first to express our apolo… oh wait, there’s more.

Jones Day is representing the Pennsylvania GOP in pending litigation brought by private parties in April 2020 and the Pennsylvania Democratic Party in August 2020. In that litigation, the Pennsylvania Supreme Court issued an order extending the statutory deadline to return mail-in ballots established by the Pennsylvania General Assembly.

There it is.

Jones Day isn’t representing anyone alleging “voter fraud”… Jones Day just represents the GOP in the case that forms the basis of all the allegations that this is a stolen election. It’s a distinction that seems trivial, but in reality is actually still trivial.

The Republican Party of Pennsylvania, through Jones Day, has sought review in the United States Supreme Court on the ground that the order is unconstitutional because it usurped the Pennsylvania General Assembly’s plenary authority to determine election procedures including the deadline for absentee ballots. The United States Supreme Court is currently deciding whether to grant certiorari. Four justices agreed with our client’s position, and voted to grant a stay, indicating that they believed there was a fair prospect of review and reversal by the Court. Three justices have issued a statement that there is “a strong likelihood that the Pennsylvania Supreme Court’s order violates the U.S. Constitution.” On November 6, Justice Alito ordered Pennsylvania election officials to segregate ballots arriving after the statutory deadline to preserve the issue and to have a record of the vote with and without the segregated ballots.

Basically, Jones Day is shouting to the world that they are not the kind of two-bit outfit that will get caught getting berated over hearsay within hearsay, as if the flack they’re taking from the Times article is for being bad lawyers as opposed to being evil lawyers. They’re taking flack because they are good lawyers trying to disenfranchise thousands of people in the middle of a pandemic.

Jones Day will not withdraw from that representation.

Everyone is entitled to hire the counsel of their choice. And we shouldn’t judge attorneys as attorneys based on the cases they take. However, lawyering is also a business, and part of business is protecting the brand. Jones Day saw a global pandemic that sparked serious public health concerns and thought it was good business to slap their name on forcing people to risk their lives to vote in person rather than voting absentee — a completely safe form of voting — simply because that could improve turnout and undermine the gerrymandered Pennsylvania state legislature that routinely brags about how its unconstitutional voting restrictions were created for the purpose of helping them retain power. Jones Day is welcome to take on that representation… and Jones Day should be prepared to face the associated market backlash for that move.

Or they could whine like children.

Jones Day expects that the media will correct the numerous false reports given the facts set forth above, all of which were readily verifiable in the public record.

I see we’re taking the latter path.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 
Joe Patrice is a Senior Editor at Above the Law and co-host of Thinking Like A Lawyer. Joe also serves as a Managing Director at RPN Executive Search. Feel free to email Joe or Kathryn  any tips, questions, or comments.

It took awhile to declare a winner in the election, and it looks like it’s going to take even longer to declare an end to the election. And that’s nobody’s fault but the lawyers willing to make dubious claims from parking lot rallies and within the bowels of bureaucracy. Joe and Kathryn run down the quasi-lawyering phase of this election season.

Justice Amy Coney Barrett’s sudden confirmation last month raised a potential quandary: What if the ACA was overturned, upending coverage for millions in the middle of a pandemic?

Even with a 6-3 conservative majority, that outcome seems unlikely. In oral arguments on Tuesday, most of the court seemed hesitant to strike down the entire law.  Notably, Chief Justice John Roberts and Justice Brett Kavanaugh questioned whether the individual mandate was so crucial to the rest of the healthcare law after all.

In 2017, Congress reduced the penalty for not getting health insurance to $0.  Because of that, challengers in the case, Texas v California, argued that it could no longer be considered a tax, making the mandate unconstitutional.

They also tried to argue that the individual mandate could not be separated from the rest of the ACA, posing a threat to the healthcare law’s many other provisions if the mandate was overturned. But five justices questioned that line of reasoning, including Roberts and Kavanaugh, a Trump appointee.

“I tend to agree with you that this is a very straightforward case for severability under our precedence,” Kavanaugh told Donald Verilli, a former Obama Administration solicitor general who is defending the ACA for the House of Representatives.

“I think it’s hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Texas Solicitor General Kyle Hawkins on Tuesday. “I think frankly that they wanted the court to do that but that’s not our job.”

Based on her line of questioning, it was less clear Trump’s most recent appointee, Barrett, will fall.

Troy Oechsner, a partner with Manatt, cautioned that oral arguments might not always be indicative of justices’ final decisions. But at least five of the nine seemed to be skeptical of the severability argument.

“You could see a majority of the court saying ‘because the mandate was zeroed out, and there’s no longer any penalty to it, it’s effectively not a tax. We’re going to throw it out. … But losing the individual mandate is not critical to the operation of the rest of the law,’” he said.

In total, the Supreme Court must consider three questions:

• Do Texas and the 17 other attorney generals and governors challenging the law have standing for their case?
• Is the individual mandate, the portion of the ACA that requires Americans to have health insurance, constitutional with a $0 penalty?
• Is the individual mandate inseverable from the rest of the ACA, meaning it cannot be separated from the rest of the law? In this case, if the mandate is determined to be unconstitutional, other provisions of the ACA could be struck down, too.

A significant portion of time was also spent questioning whether the challengers had the standing to bring the case in the first place — whether the states and individual plaintiffs could establish that a $0 individual mandate had caused them any harm. If found to have no standing, the case could be thrown out entirely.

“I don’t think I would say it’s the most likely outcome, but it’s not inconceivable,” Oechsner said. “It might be a way for at least the majority of justices to sidestep all of the thorny issues about whether the individual mandate is still constitutional.”

If the law goes

The worst-case scenario would be for the court to strike down the entire ACA, eliminating not just the individual mandate, but all of the insurance protections that are included in the law. That would remove protections that say insurers can’t deny coverage to patients with pre-existing conditions, and community rating requirements that stipulate that sick people can’t get charged more for coverage, as well as removing limitations on annual and lifetime benefits.

Millions of people would also lose Medicaid coverage in states that had expanded Medicaid. The program has also served as an important lifeline during the pandemic for people who lost their jobs and employer-based insurance. Between February and August, Medicaid enrollment increased by a median of 8.3%, well above pre-pandemic levels, according to an analysis of data from 24 states conducted by Manatt.

If the law stays

If the ACA — or at least most of the law — remains intact, it would serve as the foundation for President-elect Joe Biden’s healthcare policy. So far, the campaign has outlined three key measures, including increasing subsidies for individual buying coverage through the exchanges, lowering the age for Medicare eligibility to 60, and the most ambitious of its policy goals, creating a public insurance option that could compete with commercial insurance plans.

“Assuming the ACA is upheld and the administration isn’t scrambling to fix that, I expect them to pursue that platform,” Oechsner said. “Whether they’ll be able to do that, if the Senate remains Republican, is unknown.”

Photo credit: Matt Wade, Flickr 

Perhaps the most enervating aspect of the Trump era has been the endless feed of endlessly credulous reports that this president most invulnerable to change had managed to do so and escape his impossibly base instincts, had finally grown up, become “presidential” or whatever, had turned the corner on the pettiness and name-calling and temper-tantrums and serial unseriousness to conform to a set of behaviors more befitting of his high office, only to be disabused of the notion within minutes or hours—never any longer when Twitter was open on the commander-in-chief’s phone and Fox News was goading him to resume his petulance at the earliest possible opportunity.

Bonus season has officially arrived — and it’s here SUPER early!

It’s actually a bit shocking that Biglaw bonus season is here so soon. This is actually the third earliest time that Biglaw bonuses have been announced since 2006. But what comes as an even bigger shocker is the fact that Cravath was not the firm to make the first move on year-end bonuses.

Which firm is kicking off bonus season early this year?

This is a nice little Veterans Day gift from … Baker McKenzie. Wow! Even though Baker is the fourth highest-grossing firm in the country with $2.92 billion in revenue in 2019, this is very unexpected behavior. The global firm shocked its associates this morning by announcing this year’s bonuses for its U.S. associates.

So, let’s get into the details. What do the bonuses look like this year?

Class	Bonus
2019	$15,000
2018	$25,000
2017	$50,000
2016	$65,000
2015	$80,000
2014	$90,000
2013	$100,000
2012 and more senior	$100,000

This is the same exact bonus scale that’s been making the Biglaw rounds for years (just as 80 percent of our readers predicted it would be). But who can really complain about getting this much cash during a pandemic? We’ll get to that later.

When announcing its bonus scale, Baker McKenzie not only promised to match any increases in the market should they occur, but the firm also noted that its salary reductions (which took effect on May 1) would end on November 30, 2020, one month earlier than previously planned. On top of all of that good news, the firm will additionally reward top performers during the coronavirus crisis whose practices were impacted by the economic downturn, plus others who “demonstrat[ed] exemplary performance.” We don’t know what those additional monetary rewards look like yet.

(It should be noted, however, that Baker McKenzie did not hand out appreciation bonuses to its associates earlier this fall, and has not committed to offering them at this time, either. Davis Polk set the standard on those bonuses, which ranged from $7,500 to $40,000. That said, Baker McKenzie is technically already offering below-market bonuses. Given that the market increased before the firm even announced its year-end bonuses, will it still make the match? This is a firm that recently conducted attorney layoffs, after all, so suppose we’ll have to wait and see. As we mentioned just yesterday, this year, there will be different tiers set for compensation if not all firms offer additional bonus dollars to their associates on top of their standard bonuses to truly match the market. We just didn’t think it would happen this soon.)

When announcing this year’s bonuses, Colin Murray, Baker McKenzie’s North America Chief Executive Officer, said, “The firm would like to express our sincere appreciation for our associates’ hard work on behalf of clients and also for navigating the many personal and professional challenges brought on by COVID-19.”

Congratulations to everyone at the firm, and congratulations to all other associates who may be receiving bonus news sooner than expected this year.

(Flip to the next page to read the full memo.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, 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 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. Thanks for all of your help!

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

* The former CEO of McDonald’s is asking to be dismissed from a discrimination lawsuit filed by two former executives. Sounds like he could use a Happy Meal… [Restaurant Business]

* A Connecticut lawyer has been sentenced to prison for allegedly fleecing donors of a veterans’ charity. [Hartford Courant]

* Sources suggest that Senator Amy Klobuchar is being considered as a potential Attorney General in the Biden Administration. [CNBC]

* The first woman has been elected to become the new Maricopa County Attorney, leading the third-largest prosecutorial agency in the country. [Arizona Republic]

* The Los Angeles Times and Tribune Publishing have settled a longstanding pay disparity lawsuit. It must be interesting for the Times to write an article about itself… [Los Angeles Times]

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

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Leopard Data Solutions, what percentage of partners at the Top 200 firms are not ethnically or gender diverse — otherwise known as white men?

Hint: Though white men only account for 41 percent of associates at these firms, they’re far better represented in the partnership ranks.

See the answer on the next page.

Epitaphs for Masa Son’s audacity have been written time and again. We ourselves have been guilty of it. After years of disaster after billion-dollar disaster, it really did seem as though the SoftBank chief had essentially given up, with his move into that last refuge of financial scoundrels, the special purpose acquisition company.

Rarely if ever have we been happier to report that we were wrong. You guys, Masa Son is back.

The conglomerate logged a profit of more than $6 billion in the July-September quarter, driven by rising share prices and valuations for some of its portfolio companies…. “We can go on the attack at the same time as we keep strengthening our defenses,” Mr. Son said at a news conference in Tokyo, the first in six months where he spoke to reporters in person.

Oh boy! There’s already a bunch of shit being piled on Jones Day for their role in enabling the legal fantasies of Donald Trump and pretending that the Supreme Court will deliver the election to Trump. And, rightly so. Not the first (or last) time Above the Law has called out the Biglaw giant, but in the grand media pond, we are relatively niche fish — we’re a bunch of former lawyers writing to an audience of practicing lawyers, after all — and it’s been great to see mainstream sources dunking on Jones Day.

And it’s about to get so much worse.

I’ve had my issues with the GOP never-Trumpers turned political action committee, the Lincoln Project, and I stand by the position that liberals should be wary of any “help” from them. But. But, well, this is going to be fun. Today, Greg Sargent at the Washington Post reports that the PAC is launching an ad campaign attacking Jones Day.

Televised anti-Jones Day ads? You know Above the Law is here for that.

The Lincoln Project has said that they will continue to advocate for expanded voting rights and anti-voter suppression laws even in a post-Trump world. And as Sargent notes, this is part of that effort:

“These people have now decided that attempting to undermine the outcome of a just and fair election is perfectly acceptable for their legal practices,” Rick Wilson, GOP strategist and co-founder of the Lincoln Project told me, in a reference to Jones Day and other firms representing Trump and the GOP.

Wilson said the Lincoln Project will “bring a light on that,” noting that such efforts  help Trump in “waging law fare against the American people.”

Oh, and it gets better: there’re also going after Jones Day’s clients. As Wilson says, “I’d like to know how General Motors justifies working with a company that’s aggressively seeking to undermine the validity of a free and fair election.”

As I said, this is going to get fun.

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