Good morning. Newly-unsealed court records revealed a DOJ "bribery-for-pardon" investigation, former Manhattan U.S. Attorney Geoffrey Berman has a new gig at Fried Frank, U.S. Supreme Court justices appeared willing to deliver only a narrow win to Nestle and Cargill in a child-slavery case, and Attorney General William Barr says, surprise, the DOJ hasn't found any widespread fraud despite his boss's contentions. Let's go!
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'Bribery-for-pardon' probe revealed in Trump's final weeks
Federal prosecutors have been investigating a potential "bribery-for-pardon" scheme in which political contributions would be offered in exchange for a presidential pardon, according to court documents unsealed Tuesday.The details came in a heavily-redacted, 18-page ruling released by U.S. District Judge Beryl Howell in D.C. that revealed investigators had also examined a related "secret lobbying scheme" involving unidentified people acting as unregistered lobbyists to senior White House officials, Jan Wolfe reports. Her ruling, first issued Aug. 28, came in response to a request by the DOJ to view certain emails between a lawyer and clients, who were not identified. Howell granted the request, saying attorney-client privilege did not apply in that instance. The order's unsealing came after President Donald Trump last week pardoned his former national security adviser Michael Flynn, the first of what is expected to be a string of pardons in the Republican's final weeks in the White House. A DOJ official said no government official is a subject or target of the probe. Read more about the newly-revealed probe.
Ousted Manhattan U.S. Attorney Geoffrey Berman joins law firm Fried Frank
Geoffrey Berman, the former top federal prosecutor in Manhattan who brought sex trafficking charges against financier Jeffrey Epstein and who was ousted after overseeing probes into President Donald Trump's allies, is returning to private practice and joining Fried Frank.
Berman, who oversaw the Manhattan U.S. attorney's office from January 2018 until his departure in June, will serve on the New York-based law firm's governance committee and lead its white-collar defense, regulatory enforcement and investigations practice, David Thomas reports.
During his tenure, the U.S. attorney's office prosecuted former Trump lawyer Michael Cohen for campaign finance crimes and two associates of Rudy Giuliani, the president's personal attorney.
His departure came after a weekend standoff with Attorney General William Barr, who announced on a Friday night that Berman had resigned, which the prosecutor denied. The next day, Barr said Trump had fired him and said Berman's deputy, Audrey Strauss, would become acting U.S. attorney, a change in plans. Berman then agreed to step down. Learn more about Berman's move.
Industry buzz
- Paul Hastings, Weil Gotshal and Davis Polk all announced year-end and "special" associate bonuses at the market rate set by Cravath last month. Paul Hastings, which normally pays out year-end bonuses in March, will pay them out ahead of schedule this year. (The American Lawyer)
- Boyd Johnson, the top lawyer at Soros Fund Management, the investment firm controlled by billionaire George Soros, rejoined WilmerHale in New York. Before Johnson left the firm, he had been a co-leader of its investigations and criminal litigation group, but the former former federal prosecutor is expected to expand his practice with his return. (Reuters)
- Venable and Dickinson Wright both launched offices in Chicago. Venable brought on a 12-lawyer construction law team from Schiff Hardin, six of whom are located in Chicago. Dickinson Wright acquired Stahl Cowen Crowley Addis, a 12-lawyer firm that focuses on real estate, corporate and litigation work. (Reuters)
- Two more of the 30 states that held the National Conference of Bar Examiners' online bar exam in October have released pass rates: Ohio at 77%, its highest since 2013, and Maryland at 70%, its highest since 2014. (Law.com)
- Dentons, which permanently shut down two UK offices in July, is engaged in a "redundancy exercise" elsewhere in the UK that could cost up to 24 attorney jobs in London, Milton Keynes, and Glasgow, with cuts mitigated by creating more virtual roles. (Above The Law)
- A Michigan man pleaded guilty to emailing a threat to Mark Zaid, an attorney for the intelligence community whistleblower who sparked President Donald Trump's impeachment. (Mlive.com)
- Ana Reyes, co-head of Williams & Connolly's international disputes practice group in D.C., immigrated to the U.S. when she was five. Her teacher, Pat Harkleroad, would arrive at her Kentucky elementary school an hour early every morning to teach Reyes English. After 40 years of wanting to say thank you, Reyes got to thank Harkleroad in person on Nov. 13. (The Washington Post)
SCOTUS weighs child-slavery case against Nestle, Cargill
U.S. Supreme Court justices during arguments on Tuesday appeared wary of completely exempting American companies from liability under a 1789 law that allows foreigners to sue in U.S. courts over human rights abuses, Lawrence Hurley reports.
While the court signaled it may deliver a narrow win to Cargill and Nestle and toss a lawsuit brought under the Alien Tort Statute alleging they helped perpetuate child slavery at Ivory Coast cocoa farms, the justices, including some conservatives, questioned the ramifications of completely barring cases against U.S. corporations, the position Hogan Lovell's Neal Katyal advanced for the companies.
Justice Samuel Alito: "Mr. Katyal, many of your arguments lead to results that are pretty hard to take."
Justice Elena Kagan: "You have a suit against 10 slaveholders, 10 slaveholders decide to form a corporation specifically to remove liability from themselves, and now you're saying you can't sue the corporation?"
Justice Brett Kavanaugh: "The Alien Tort Statute was once an engine of international human rights protection. Your position, however, would allow suits by aliens only against individuals, as you've said, and only for torts international law recognized that occurred in the United States."
Learn more about the case, and check out our video coverage of the litigation.
Coming up today
- The DOJ and Google are set to appear for a hearing in the government's antitrust lawsuit against the search giant as U.S. District Judge Amit Mehta in D.C. weighs how much access the company's employees should have to confidential information that rivals like Apple, AT&T and Microsoft turned over during the investigation. Lawyers at Williams & Connolly, Wilson Sonsini and Ropes & Gray are advising Google.
- The 2nd Circuit will consider whether to revive more than 900 lawsuits by women who said they developed a rare neurological condition after using Bayer's Mirena contraceptive device. Find out more about the arguments.
- The Chemours Co will ask the Delaware Supreme Court to overturn a Chancery Court ruling holding its former parent company DuPont could force the spin-off to arbitrate a dispute over its environmental cleanup liabilities. Wachtell Lipton's William Savett and Skadden's Robert Saunders rep Chemours and DuPont, respectively.
- A bankruptcy trust formed to redevelop industrial land formerly owned by General Motors will urge the 6th Circuit to revive a lawsuit alleging DTE Energy Services Inc failed to maintain a power plant it leased on the property in Pontiac, Michigan. Thompson & Knight's Richard Phillips and Hunton Andrews Kurth's Peter Partee will argue for the trust and DTE, respectively.
- The EEOC will ask the 7th Circuit to revive its lawsuit claiming Walmart violated anti-bias law by reneging on an offer to make a Seventh-day Adventist an assistant manager of a Wisconsin store because he could not work on Saturdays. Philip Kovnat of the EEOC will face King & Spalding's Jeremy Bylund for Walmart.
- A former Insys Therapeutics sales manager is slated to be sentenced after admitting he participated in the opioid manufacturer's vast scheme to pay kickbacks to doctors to prescribe an addictive fentanyl spray. Jeffrey Pearlman faces up to five years in prison, but defense lawyers led by Katten Muchin Rosenman's Scott Resnik argue U.S. District Judge Janet Bond Arterton in New Haven, Connection, should instead impose probation after he cooperated with authorities and testified in two trials.
"To date, we have not seen fraud on a scale that could have affected a different outcome in the election."
Attorney General William Barr, who in an interview with the AP said the DOJ has not uncovered any evidence of widespread voter fraud in the presidential election, despite President Donald Trump's repeated claims. (Reuters)
In the courts
- U.S. District Judge Jeffrey White in San Francisco struck down two Trump administration policies that limited the H-1B visa program. The administration claimed those polices would help combat the economic fallout of the COVID-19 pandemic and preserving jobs for Americans. The ruling came in a lawsuit by business groups including the U.S. Chamber of Commerce repped lawyers led by Paul Hughes of McDermott Will & Emery. (Wall Street Journal)
- The D.C. Circuit upheld the FDA's decision to regulate e-cigarettes as tobacco products, rejecting challenges from manufacturers and vape shops claiming the agency had violated the Constitution. The plaintiffs were represented by the libertarian public interest law firm Pacific Legal Foundation. (Reuters)
- The 2nd Circuit heard arguments over President Donald Trump's bid to halt a lawsuit accusing the president of exploiting his family name to promote a marketing scam targeting poor and working-class people. His lawyer, Thomas McCarthy of Consovoy McCarthy, argued the proposed class action concerning the multi-level marketing company American Communications Network belonged in arbitration. (Reuters)
- Ancestry.com has been hit with a proposed class action accusing the company of misappropriating and misusing individuals' personal information in its database of U.S. school yearbooks without consent. Michael Ram of Morgan & Morgan is pursuing the case in San Francisco federal court. (Reuters)
- Yelp executives including CEO Jeremy Stoppelman must face a shareholder lawsuit seeking to hold them liable to the company for alleged misstatements about its ability to garner advertising revenue in 2017 that prompted an earlier shareholder class action, U.S. District Judge Edward Chen in Oakland, California, ruled. The lawsuit was brought derivatively on the company’s behalf by an investor repped by Shawn Williams of Robbins Geller. (Reuters)
- A lawyer for Bill Cosby told the Pennsylvania Supreme Court that the judge at his 2018 sexual assault trial should have barred five prosecution witnesses who testified he had also drugged and raped them. The lawyer, Jennifer Bonjean, argued the complaints of the five were too dissimilar to those of Andrea Constand, whom Cosby was convicted of drugging and raping. (Reuters)
- The 2nd Circuit upheld the dismissal at the DOJ's request of a whistleblower lawsuit by a former investment fund executive that accused a slew of drugmakers, insurers and pharmacy benefit managers. The DOJ’s decision to seek the dismissal of John Borzilleri's lawsuit over his objections came after it adopted a policy in 2018 aimed at dismissing False Claims Act cases that it did not join more aggressively. (Reuters)
Industry moves
- Former SEC lawyer Thomas Kim joined Gibson Dunn in the firm's securities regulation and corporate governance practice in Washington, moving over from Sidley Austin. (Reuters)
- Environmental litigator Stephen Fitzgerald joined Morgan Lewis as a partner in its Dallas and Houston offices. He was previously with Baker Botts. (Morgan Lewis)
- Shawn Cooley, a D.C. attorney whose practice focuses on managing national security reviews and foreign investment regulatory aspects of cross-border transactions, moved to Weil Gotshal as a partner. He was previously at Kirkland & Ellis. (Reuters)
- Navneeta Rekhi left Kirkland & Ellis and joined the Latham & Watkins Bay Area offices as a partner in the corporate department and member of the M&A and private equity practices. (Latham & Watkins)
- Stephanie Bergeron Perdue, the former deputy executive director of the Texas Commission on Environmental Quality, joined Baker Botts as a litigation partner in Austin in its environmental, safety and incident response group. (Baker Botts)
- Erica Gerson, a former associate director at FINRA, rejoined Steptoe as partner in Washington. (Steptoe)
- Corporate, M&A and securities partner Debra Gatison Hatter joined Norton Rose Fulbright in Houston from Clark Hill Strasburger. (Norton Rose Fulbright)
- Christopher Kinkade left Fox Rothschild and went to FisherBroyles as a member of the litigation and intellectual property practices in Princeton, New Jersey. (FisherBroyles)
- Dennis James joined Blank Rome’s insurance recovery group as of counsel in Washington, departing Perkins Coie. (Blank Rome)
Columnist spotlight: Delaware judge excoriates Gibson Dunn in Anbang/Mirae busted deal ruling
Delaware Vice Chancellor Travis Laster's ruling in AB Stable VII v. MAPS Hotels and Resorts is an exhaustive interpretation of whether the worldwide pandemic permitted South Korea's Mirae Asset to walk away from a $5.8 billion deal to buy luxury hotels in the U.S. from a successor to China's Anbag Insurance. Alison Frankel unpacks the 243-page decision and Laster's unsparing account of the conduct of Anbang's lawyers at Gibson Dunn, who he said deliberately withheld key information from Mirae and its lawyers at Greenberg Traurig and provided "misleadingly incomplete" representations. The firm also "sadly … misled the court," the vice chancellor wrote. Read more about the decision here.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Correction: Tuesday's newsletter reported that Derrick Cephas joined Squire Patton Boggs from Weil Gotshal as a partner. He joined Squire as of counsel.
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