Category: News Feeds

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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. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

The rise of the novel coronavirus has the world on edge as it struggles to mitigate what might be a devastating global pandemic, or a more severe seasonal flu. 

Nonetheless, we can have preparedness without panic. Firms are already adopting measures to combat the spread of the virus. Dentons, which famously swallowed up the 4,000 strong Chinese firm Dacheng in 2015, has temporarily closed its Wuhan office and many Biglaw firms are directing their attorneys in China to work remotely. Orrick, Norton Rose, Duane Morris, and Baker Botts are either canceling or imposing restrictions on their upcoming conferences and retreats in the U.S. and abroad. 

In Shanghai, Quinn Emanuel and Squire Patton Boggs are reimbursing attorneys for taxi expenses should they have to travel to their offices to dissuade them from taking public transportation. In Milan, Biglaw firms Baker McKenzie and Squire Patton Boggs are encouraging their attorneys to work from home as the virus spreads in Italy, and Baker McKenzie has closed their London office after one employee returned from Italy sick.  

Justin Flowers, our Principal in Hong Kong, has been monitoring the situation closely since the outbreak. He notes that the initial panic has mostly subsided, and despite market turmoil, there is a feeling that the gears are shifting and a return to normalcy has begun. On Monday, many firms in Hong Kong and Shanghai are expected to begin implementing return-to-work policies and Beijing will likely follow suit. 

Across the globe, other countries are enacting isolation measures. Japan announced schools will close for at least a month to reduce transmission of the virus. Schools in China have already closed, affecting 200 million children. The U.S. is taking a more reactionary approach, waiting for cases to appear before closing down communal spaces. 

Forecasting how the virus might impact Biglaw relies on a myriad of assumptions. Currently, the Dow Jones is plummeting in response to the virus’s corporate shrapnel. Thursday saw the largest point drop in the index’s history. The ripple effect could be wide-reaching – China’s carbon footprint has dropped 25 percent compared to the same period last year, reflecting the slowdown in factory production in China. 

Supply chain disruptions have already had a tangible effect on companies with major footprints in China like Apple, whose stock is down 16.4 percent from its record high in mid-February, and has reported slowdowns in their Chinese factories. Unlike many of its peers, Apple’s reported cash reserves of $250 billion dwarfs even Smaug’s river of gold in the Lonely Mountain, a prescient policy harkening back to Apple’s near bankruptcy in the late 1990s. For the rest, the hope is that the rhetoric surrounding the coronavirus will be mostly sound and fury, similar to the H1N1 outbreak of 2009 that stirred up visions of global doom. 

Forecasting what the disease progression might look like has been difficult. As of right now, there are 51 countries with confirmed cases of the virus. There have been many attempts to quantify how contagious and how deadly the virus is. On Monday, an article published in the Journal of the American Medical Association (JAMA) gave an update on the severity of the disease. Using data from the Chinese Center for Disease Control and Prevention, they found that the overall case fatality ratio (CFR) – deaths per cases confirmed by RT-PCR or other assays – was 2.3 percent . Compared to the CRR of Middle East Respiratory Syndrome (MERS) (9.6 percent) and SARS (34.4 percent), the disease is assumed at this point to be much less deadly. What distinguishes the coronavirus (SARS-CoV-2), is how rapidly and widely it is spreading. Even though the disease is presumably much less deadly than both MERS or SARS, it has already led to more total deaths because it is spreading much quicker. 

There have been many attempts to quantify the infectivity of SARS-CoV-2, but the limited datasets and differences in statistical modelings have created a wide range of proposed outcomes. Epidemiologists use a measure called R0 (R naught) to estimate the spread of a disease. R0, also known as the basic reproduction number, tries to measure how many new cases one case of the virus will cause. Currently, most models estimate the basic reproduction number to be between 3-5, substantially higher than the WHO’s estimate of 1.4–2.5.

Should the virus continue to spread in the U.S., we expect Biglaw firms to institute isolation policies and encourage their attorneys to work from home. The good news is that technology has made remote working more productive than ever. In fact, recent studies have shown that remote employees are more productive. Deal flow may slow if market turbulence continues, but we expect firms will maintain their status quo in billings and laterals by introducing flexible solutions and realigning priorities. 

We have had lateral candidates seeking to expatriate from China, asked to observe a 14-day domestic quarantine before interviewing to ensure the virus is not spread. As an interconnected recruiting firm with a global full-service platform, we make use of a plethora of different technology platforms including a proprietary video conferencing solution to facilitate the type of effective communication that twenty years ago, was only possible by sharing an office. We will work with our law firm clients to ensure their strategic goals are accomplished, even in the wake of a worsening pandemic, by offering our technology platform and comprehensive services in coordinating remote attorney interviews and by offering flexible solutions through our sister company Bridgeline Solutions to help firms scale their workforce as needed. 

Part of strategic realignment will likely come with an emphasis on bankruptcy, restructuring, litigation, and labor & employment if demand for corporate work slows. Typically, we see these countercyclical practices buoy firm financials in times of recessions. Assuming we actually do see a recession, firms will pivot their lateral hiring strategy to emphasize these practices, which could impact junior attorneys. 

Lateral Link recruiter Jon Kahn who survived three recessions as a Biglaw partner and associate retooled his practice to survive the recession. As corporate work dried up in the early 1990s, Jon was forced into Fried Frank’s litigation practice to save his career. Unhappy in the practice, a recruiter approached him and brokered a deal for Jon to join Cahill Gordon as a capital markets attorney, after taking a small experience haircut. We have a long track record of success in moving associates across practice areas and we are happy to help if you are considering a move to another firm or another practice. 

If you are an experienced attorney looking to lateral, time is of the essence. Firm administration is preoccupied with plotting their strategic response to different potential outcomes of the virus life cycle. Consequently, submitting an unsolicited resume right now for a lateral move is a waste of time. We are finely attuned to our law firm client’s needs across the U.S. and globally and we are happy to help you navigate the lateral market in this uncertain time. At the end of the day, though these may be trying times, the world is not ending, and Biglaw will subsist, and as the early Am Law 200 reports indicate, thrive. 

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Michael Allen is the CEO of Lateral Link. He is based in the Los Angeles office and focuses exclusively on Partner and General Counsel placements for top firms and companies. Prior to founding Lateral Link in 2006, he worked as an attorney at both Gibson, Dunn & Crutcher LLP and Irell & Manella LLP. Michael graduated summa cum laude from the University of California, San Diego before earning his JD, cum laude, from Harvard Law School.

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Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, 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.

It took me four, five years just to learn how to cope with attorneys. I’ve seen attorneys try to just take a judge off just by doing some really outrageous things, and trying to get the judge to lose their temper so they can get that judge recused. It happens all the time, and some people are just diabolical in the way they act, just to get the judge to make a mistake like that.

— Former Miami-Dade Circuit Judge Ronald Dresnick tells Law.com being a judge means being tested by attorneys all the time and being “goaded” by advocates trying to get recusals. The pressure of the robe often means high blood pressure, insomnia, stress, and other health issues, according to a study by the American Bar Association’s Commission on Lawyers Assistance Programs.

People are dying, the stock market is tanking, and we’re being told to stock up on water and anticipate major disruptions. But, hey, at least the cops in Wisconsin are keeping a sense of humor about this whole pandemic thing!

The Washington Post reports that the Merrill Police Department posted this public service announcement to Facebook on Wednesday.

P.S.A
WARNING: If you have recently purchased Meth, it may be contaminated with the Corona Virus. Please take it to the Merrill Police Department and we will test it for free. If you’re not comfortable going into an office setting, please request any officer and they’ll test your Meth in the privacy of your home. Please spread the word! We are here for you!

Get it? The criminals will bring their drugs into the police station for a virus scan, and then the cops will yell, “Gotcha!” and slap on the cuffs.

Note that the post was updated a day later to “bring this full circle” after the entire public health establishment collectively shouted, “WHAT THE F*CK WERE YOU THINKING?”

“This is a time when people need to be taking public health authorities very seriously,” Prof. Stefano M. Bertozzi of the University of California at Berkeley’s School of Public Health told the Post. “They’re undermining their credibility that will be very much needed if and when an epidemic comes to their community.”

And the cops in Merrill weren’t the only ones squandering their own credibility in a potential health crisis for a few yuks on the outside chance that someone would be dumb enough to believe the police. According to the Post, “Departments in St. Francis County, Ark., Johnson City, Tex., Tavares, Fla., and Decatur County, Kan., have all blasted out the warning, in some cases grabbing straight-faced headlines from local TV news outlets that ran the story like a police news release without a hint of skepticism.”

Back in Merrill, the cops were real sorry you took it wrong, and they hope this “conversation” is a “catalyst for getting people into a better place.”

Just to give you some history, we have actually experienced people report their illegal drugs being stolen, being ripped off in a drug deal, being sold a look-a-like illegal substance, etc. We have even experienced drunk drivers coming to pick up arrested drunk drivers as their “sober responsible party”. So this attempt, although a long shot, still had some possibility behind it. We will take those easy grabs at removing poison from our community whenever we can. That is our role which we un-apologetically must fulfill.

See, there’s absolutely no difference between this and sending people with outstanding warrants invitations to come and collect a plasma TV they “won.” Likewise, no diminution of institutional credibility is too great if it gets even one gram of meth off the streets. They had to do it, or else the terrorists win!

Police are issuing fake warnings of meth tainted with coronavirus. Public health experts say please stop now. [WaPo]

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

Well, isn’t this awesome news?

Tulane Law School dean David Meyer announced yesterday that the law school’s Women’s Prison Project (WPP) has received almost $2 million from an anonymous donor. The WPP clinic is a unique one that helps women at the intersection of domestic violence and the legal system focusing on cases where a survivor of domestic violence is charged with killing an abuser or for crimes under an the coercion of their abuser.

And what’s all the money going to buy Tulane Law? Two clinical professors and three professional staff members. That will allow the program to help even more women.

“We could not be more grateful to the generous donors for their vision and partnership in making this possible,” Meyer said.

Tulane President Mike Fitts echoed Meyer’s gratitude for the gift and the important work it will fund.

“This gift supports the kind of bold, impactful and transformative efforts that are at the heart of Tulane’s educational mission,” Fitts said. “We prepare our students to do good, to promote justice and to improve the human condition, not only as future leaders, but here and now, through a hands-on, life-changing curriculum.”

The WPP was founded by Professor Becki Kondkar, director of Tulane’s Domestic Violence Clinic, and Professor Katherine Mattes, director of Tulane’s Criminal Justice Clinic. They recognized the unique legal issues faced by abused women, and are excited to have found a donor who appreciates that. Kondkar said, “We are so fortunate to have a donor who supports the bold action and expansive vision necessary to address this problem.”

And Mattes explained why the project is essential:

“There are so many women in Louisiana sentenced to die in prison for defending themselves. We have a lot to do, but we have a lot of hope,” said Mattes. “Hope because the time is ripe for reform; hope because there is a growing awareness about intimate partner violence; and hope we get from these women who, despite everything, haven’t given up.”

Congrats to Tulane Law and the WPP. That’ll be money well spent.

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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).

Senate Finance Committee leaders have threatened to subpoena Cigna if it doesn’t turn over information on how it negotiates insulin costs. The request is part of a larger investigation on rising insulin prices, launched last year by Senators Chuck Grassley (R-Iowa) and Ron Wyden (D-Oregon).

Prices for the lifesaving drug have spiked dramatically in the past decade, despite the fact that it was discovered nearly a century ago. Insulin prices doubled between 2012 and 2016, from $2,864 per person to $5,705, according to a report by the nonprofit Health Care Cost Institute. The rising cost of the drug has taken some patients to extreme measures, including skipping doses or rationing their supply of it.

Grassley and Wyden said they first sent a letter requesting information from Express Scripts on April 2 last year. In a letter addressed to Express Scripts President Timothy Wentworth, they said they would give the company until March 10 to respond. At that point, the committee would issue a subpoena.

“Cigna has failed to even attempt to answer many of the questions that we posed…” they wrote, highlighting questions on Express Scripts’ formulary placement and rebate negotiation processes. “Families are struggling to keep up with rising costs, and they do not understand why they continue paying more money for a therapy that has remained largely unchanged for decades. Americans are demanding answers from PBMs and pharmaceutical companies, and we expect your company to begin providing them promptly.”

In an emailed statement, a Cigna spokesperson wrote, “We take the Committee’s inquiry very seriously and have been engaged with them on this request. We are committed to being cooperative.”

Express Scripts is one of the largest PBMs by market share. Cigna closed its $67 billion acquisition of the company in late 2018.

Last year, one day after Grassley and Wyden submitted their request for information to Express Scripts, the company announced it would cap insulin prices. The PBM said it had partnered with insulin manufacturers to cap insulin copays at $25 per month. The cap applies to the insulins that are listed on a plan’s formulary, which can vary, but all three major insulin manufacturers are participating.

Others have launched similar initiatives to keep insulin prices under control. Insurance startup Oscar Health recently announced it would decrease the cost of insulin from $350 per month to $3 per month by switching from Levemir to Novolin N.  Both drugs are manufactured by Novo Nordisk.

State legislators have also started their own efforts. Colorado first passed legislation capping insulin costs at $100 per month, followed shortly with similar legislation in Illinois.

Photo credit: eromaze, getty Images 

Ed. note: Litigation finance is transforming the fields of both law and finance. To help our readers gain a better understanding of what litigation finance entails, we’ve partnered with Lake Whillans to present a new series so you can better understand how litigation funding works, its pros and cons, and its past, present, and future.

The growth of litigation finance (also known as litigation funding or third-party funding) has been a hot topic in recent years, but even if you’ve heard of the general concept, you may be less familiar with the range of litigation finance options. Much like other forms of finance, there are different structures that can meet the needs of a particular claimholder, matter, and/or firm.  This article will review the basic features of a litigation finance investment and describe some of the different structures or “flavors” of litigation finance. Lake Whillans has and will transact in any of the “flavors” described below.

The Cone – Non-recourse capital

All forms of litigation finance share a common feature, which is the non-recourse provision of capital in connection with a legal claim (or set of claims).  That means that the funder receives a return on its investment only if the underlying case or set of claims is successful, but if the case fails, the funder is owed nothing.  In the successful scenario, the litigation financier recovers its invested capital, plus a portion of the litigation proceeds. The allocation of proceeds between the claimholder and the funder (and counsel where counsel has a contingent stake) will depend on terms negotiated at the outset and memorialized in the funding agreement, which is generally structured as a purchase of the claim proceeds.  Lake Whillans aims to structure deals such that the majority of the proceeds remains with the claimholder.

Plain Vanilla – Single-Case finance

In the simplest structure, the funder enters an agreement with the claimholder to pay the legal fees and expenses associated with litigating a single case (e.g., lawyer and experts). This enables the claimholder to remove from its balance sheet the risk of pursuing the claim: because the claimholder does not spend its own capital on legal expenses, there is no hit to the balance sheet on an unpredictable and ongoing basis. Although the claimholder must keep the funder apprised of developments as the case progresses, the claimholder maintains independent control over case strategy.  For example, the claimholder decides whether to accept any settlement offer. Lake Whillans funds single cases pending in U.S or Canadian courts, or in an arbitration proceeding worldwide. For a single case investment, we generally invest between $1-$15 million and a flexible rule of thumb is that the anticipated damages should exceed the invested amount by a factor of ten.

One variable in a single-case litigation finance deal is how much risk the claimholder’s counsel takes on.  At one end of the spectrum, the funder is paying 100% of the legal fees at the counsel’s standard hourly rate as amounts come due as well as the other expenses associated with the litigation or arbitration.   At the other extreme, counsel may agree to take the case on a full contingency for the legal fees, and the funder is only paying for other expenses associated with the litigation (e.g., experts and other out-of-pocket expenses).  Often a deal will fall somewhere in the middle: the lawyers will be guaranteed a certain payment from the funder (either a percentage of its earned fees or all its fees up to a cap), but will still have some “skin in the game,” generally either as a contingent percentage of proceeds or an additional percentage on the unpaid fees. The flexibility to negotiate such arrangements with counsel and a funder makes it possible for a claimholder to select from a wider range of counsel than if it were to choose only among lawyers willing to work on full contingency, and allows firms to offer alternative structures that balance the need for certain and ongoing income with sharing in potential upside.  Unlike some funders, Lake Whillans does not require that the firm take risk in order for us to fund a matter, but we are open to sharing risk with a firm. 

Rum Raisin – Defense-Side Funding

Most often, in a single-case financing, litigation funders are financing the claimholder who is seeking monetary damages, from which the funder can take its share if successfully obtained.   However, in some instances, we are able to finance a defendant.  Funding is available to a defendant when a “win” for that defendant allows it to continue to hold some right or asset, which is tied to an income stream that can be shared with the funder.  A common fact pattern we encounter is when a defendant is sued for breach of contract and the plaintiff seeks a declaratory judgment that the contract is terminated, and a “win” for the defendant means it continues to hold the right to continue to perform the contract and reap its benefits.  For example, that could be the continued exclusive right to sell or distribute a product in a certain geography pursuant to a distribution agreement, or continued rights to valuable IP under a license agreement. Lake Whillans’ return in those examples would come from the revenue earned from the product sales that were able to continue after successfully defending the claims.  (Or from a settlement that included a buy-out of the contractual rights). Other examples where defense-side funding might work include disputes over ownership of real estate or companies or other monetizable assets.

Neapolitan – Portfolio Finance

Although single-case funding dominated litigation finance in its early years, portfolio funding has become increasingly central to the industry as it has matured.  In a portfolio funding deal, the litigation financier invests in a set of claims either held by the same claimholder or litigated by the same law firm. By aggregating claims, a claimholder can generally obtain funding at a lower cost of capital: the funder is willing to accept a lower return because investing in a portfolio is less risky than investing in a single claim with a binary outcome.  

For companies, portfolios may include a few larger claims or a number of smaller claims that may not otherwise have been pursued.  The financing may be used not only to support the costs of the portfolio of affirmative claims, but may also include additional amounts given directly to the company that can be used to pay legal costs for matters in which the company is a defendant.

For a law firm, a portfolio funding deal can enable it to take cases on contingency or grow a book of contingency cases at reduced risk to the firm.  The funder will provide capital to the firm based on the expected contingent fees it may receive from the portfolio. The firm can use this capital to pay the recurring expenses of the firm, smooth cash flow, and/or grow the firm while the cases are ongoing.  This type of funding can be particularly useful for firms involved in a number of cases that have many years ahead before likely monetization or for a firm that is actively growing in order to service existing cases and attract new ones. For firms just beginning to build a contingency portfolio, either internally driven or because of client-pressures to do so, funding can ease the cash flow challenges and mitigate the risk of contingency arrangements.  The structure and pricing of these transactions can vary depending on the size of the portfolio, the risk associated with it, the quantum and timing of cash flows, whether the case portfolio is fixed or growing, as well as other factors.

Cookie Dough – Monetization of claims

Whether a litigation funding agreement covers a single case or a portfolio of cases, it may include monetization of underlying claims.  This means that the funder will pay a portion of the anticipated recovery directly to the claimholder based on the claim’s expected value and time to monetization.  The capital provided to the claimholder need not be used for the litigation costs, but by the claimholder for an array of purposes, including operating expenses, servicing debt, R&D, or a host of other purposes.  Monetization could be part or all of a single case or portfolio finance deal. For example, this structure may be attractive to a claimholder after it has secured a judgment or arbitration award, but is facing a lengthy appeal or collection battle and would benefit from obtaining capital today rather than waiting months or years.  Lake Whillans is also able to make outright purchases of claims that are susceptible to valuation, but still carry litigation and timing risk, for example, claims for class members in large antitrust matters (e.g., we are able to purchase or finance claims in the pending Visa Mastercard antitrust litigation).

For a claimholder with limited resources, upfront monetization can provide non-recourse capital to fund operating expenses of the business while it endures the potentially lengthy litigation of its claim.   For a large corporate, this structure can be useful to self-fund the legal department with respect to other legal expenses, and thus mitigating the legal department’s status as a pure cost center.  

* * *

Ultimately, every litigation finance deal is unique, and the structure and terms will depend on a broad range of variables.  These include the value at stake relative to the projected litigation cost, the strength of the claims, the finances of the claimholder and defendant, the stage of the litigation, and anticipated obstacles to enforcing a favorable judgment.  An experienced provider of litigation finance like Lake Whillans will tailor a funding agreement to meet the needs of the claimholder, counsel, and funder. The best way to determine what structure best fits the needs of your situation is to contact us.

The stock market is down, way down. The Dow Jones suffered its largest single-day drop in history. Thanks to escalated fears about the rapid spread of the coronavirus outbreak, it’s beginning to look like the days before the financial crisis began. People are panicking and have gone into crisis mode — even Biglaw firms.

As the coronavirus continues its onslaught across the globe with at least 82,000 people infected thus far, the world’s largest law firms have gone on the offensive, initiating measures to ensure that employees are protected from contracting the illness. More firms have issued travel restrictions, more firms are encouraging employees to work remotely, and some firms have even closed their doors entirely.

In addition to the firms we previously reported on, these are the latest to give instructions to employees on how they’ll be dealing with the threat of coronavirus:

• Shearman & Sterling – the firm has issued a travel ban for China and Hong Kong, and will limit lawyers’ nonessential travel to Italy, Japan, and South Korea, with orders for remote work having been given for all employees in Asia and Italy
• Dorsey & Whitney – the firm is encouraging lawyers and staff in Beijing, Shanghai, and Hong Kong to work remotely, and has distributed laptops to all lawyers and staff to enable them to do so
• Sullivan & Cromwell – the firm has told lawyers to check in with managing partners or office directors if they plan to travel to any of the countries that have had major coronavirus outbreaks and to be aware that they may have to self-quarantine upon their return
• Morgan Lewis – the firm has encouraged associates and partners in Asia office to work remotely, restricted all nonessential travel, and shipped supplies directly to its offices in Asia
• Baker McKenzie – the firm has limited nonessential travel for lawyers and has put remote working protocols in place
• Pillsbury – the firm hasn’t closed its Asia offices in Hong Kong, Shanghai, Taipei, Taiwan, and Tokyo, but has sent respirator masks from the U.S. and has ordered hand sanitizer stations for all of its offices in an attempt to help protect its employees
• Hogan Lovells – while the firm is restricting nonessential travel, it hasn’t closed its Asia offices or office in Milan, Italy, and will permit employees to work remotely if they “have concerns”
• Latham – the firm has canceled a March 5 client reception at the American Museum of Natural History in New York, New York, “[o]ut of an abundance of caution”
• Quinn Emanuel – the firm is paying for employees to take taxis rather than public transport if they must go to the office
• Squire Patton Boggs – the firm is paying for employees to take taxis rather than public transport if they must go to the office

Some firms have temporarily closed their doors due to the coronavirus taking hold:

• Dentons – the firm temporarily shut down its office in Wuhan, China, where the virus was first identified
• Faegre Drinker – the firm temporararily shut down its offices in Shanghai and Beijing, but has since reopened them
• Baker McKenzie – the firm was the first in London to temporarily close its doors following a coronavirus scare, telling employees to work from home after someone at the firm didn’t feel well upon returning from Italy

What is your firm doing to protect its employees from potential exposure to coronavirus? Please email us or text us (646-820-8477). Stay safe, everyone.

More Big Law Firms Respond as the Coronavirus Continues to Spread Globally [American Lawyer]
Baker McKenzie Closes in London Following Coronavirus Scare [Law.com International]

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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.

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol’s use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.

So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.

That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.

Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez’s survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was “involved in an illegal border crossing attempt” and “pelting” him with rocks.

The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong – that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.

Hernandez’s parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court’s request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.

The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling

[PDF]:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

This sounds positively Solomonic until you read the next paragraph of the ruling, along with some context that isn’t discussed in the ruling.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross-border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.”

That 2014 date is key. That’s the same year the Border Patrol was given new use-of-force guidelines while simultaneously rejecting the findings of an outside investigation that said agents used their weapons far too often in situations that either didn’t require deadly force (rock throwing) or created new dangers (shooting at moving vehicles). The US government also cleared Agent Mesa of any wrongdoing, which suggests it has zero desire to hold its own people accountable for extrajudicial killings of foreign citizens — something that can be easily accomplished by firing bullets from the US side of the border into Mexico.

In conclusion, the Supreme Court recommends trying not to get shot on the wrong side of the border.

Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either.

The 5-4 majority says too much is at stake in terms of border security and international relations to come to any other conclusion. Since it’s not going to legislate from the bench, US government employees can kill people in other countries without fear of being held personally responsible for their rights violations until Congress steps in — something it’s obviously in no hurry to do.

The concurrence, written by Justices Thomas and Gorsuch, is mainly annoyed the Court wasted time discussing a Congressionally-created escape hatch for federal officers and suggests tossing the Bivens doctrine altogether, further limiting lawsuits brought against federal officers/agents for Constitutional violations.

The dissent, however, points out this isn’t an extension of Bivens across the border. While Hernandez may have died in Mexico, the bullets were fired by an officer on United States soil.

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.

Even the government concurred a Bivens action could be brought against Agent Mesa if one key element had been satisfied.

The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.

“Wrong place, wrong time” shouldn’t be the determining factor.

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.

[…]

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

If Bivens is neutered, there’s nothing left for plaintiffs. And the agency benefitting from this already does next to nothing to deter misconduct by its agents.

Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.

Zero accountability, blessed by two government branches. Here’s the third branch doing the same thing. The message it sends is this: if you’re going to kill a Mexican citizen, make sure they’re still in Mexico. And that message means the case coming up from the Ninth Circuit is going to give another Border Patrol agent a free pass on taking a foreigner’s life.

Supreme Court Says It’s OK For Border Patrol Agents To Kill Mexican Citizens As Long As They Die In Mexico

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Ed. note: Please welcome Sarah Feingold to our pages. She’ll be writing about her experiences working as in-house counsel for startup companies.

Company name: biggest print.

First name, last name, and job title: small print.

I didn’t spend money to attend this conference, but I was afraid I was about to pay dearly. I slip the nametag over my neck, the wrong way, so that my shirt reads my personal information. The check-in professional doesn’t notice as she’s now taking information from the lawyer behind me in line.

I have much experience working in a small subset of the legal profession. I’m an in-house attorney at a well-funded or well-known tech company. That means that along with the zip-up hoodies, engineer talk, office dogs, and hand-crafted cold brew on tap, comes my least favorite perk. I’ll be one of the most popular people in a room full of esquires. I’m a potential client. I assume I look exactly like walking, talking, name-badge-wearing money. Money that may be small today, but has the potential to grow up to be significant cash flow. I’m a guppy in a room of hungry sharks and I’m in no mood to be eaten.

I take my seat, usually in the very front row. Instead of chatting with attendees, I hope to absorb all the content in this narrow and deep area of law. I feverishly jot down notes to report back to my team and CEO.

According to Wikipedia, “a unicorn is a privately held startup company valued at over $1 billion.^[1] The term was coined in 2013 by venture capitalist Aileen Lee, choosing the mythical animal to represent the statistical rarity of such successful ventures.”^[2][3][4][5] A baby unicorn is defined (by me) as a company that investors or the press thinks, one day, hopefully soon, may mature into a unicorn.

In 2007, I was the 17th employee and first lawyer of a baby unicorn, Etsy. For nine-plus years I supported Etsy through its unicorn trajectory to public company status. And then I landed the role of Vroom’s general counsel and first lawyer. The only way I could have avoided malpractice and stayed sane throughout this process is through my carefully cultivated network of similarly situated magical in-house tech attorneys and hand-selected outside counsel.

All outside counsel must have a common mission for the long-term prosperity of my fragile, rare, golden-horned relative of a horse. Not all relationships have gone as planned. I’ve hired, fired, and worked with dozens of law firm lawyers.  I have stories to tell.

I write this column to share some pro tips for nourishing a rare client creature so that when a fledgling animal is spotted out in the wild, cold emailed, or introduced, you will know what to do. Pull up a seat in the front row. Take some notes. Because nametags often flip.

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Sarah was the General Counsel / first Lawyer at Etsy and Vroom.  She’s a co-founder of The Fourth Floor, a creator and producer of Legal Madness, an NYU Law School Engelberg Center fellow, a board member, an investor, and a speaker. You can also find Sarah hammering silver, eating candy, and chasing her child. sarahfeingold.com.