Good morning. The DOJ is accusing Facebook of discriminating against U.S. workers, The New York Times says the roles of Abbe Lowell and Elliott Broidy were looked at in the DOJ's "bribery-for-pardon" probe, prosecutors in Kenosha, Wisconsin, are questioning attorney John Pierce's role in fundraising for Kyle Rittenhouse, the 11th Circuit appears to be skeptical of voiding Jeffrey Epstein's controversial non-prosecution agreement, and a major immigration case backlog awaits President-elect Joe Biden's administration. It's almost the weekend, yay!
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Trump administration claims Facebook discriminates against U.S. workers
The Trump administration is taking aim at Facebook in a complaint accusing the social media company of discriminating against Americans by favoring temporary foreign workers, including those with H-1B visas, for 2,600 high-paying jobs, Sarah N. Lynch, Nandita Bose and Katie Paul report.
The case filed by the DOJ marked the latest clash between the administration and Silicon Valley over attempts to restrict immigration for foreign workers. The DOJ claims Facebook refused to recruit, consider or hire U.S. workers for jobs it reserved for temporary visa holders it sponsored for "green cards" that would allow them to work permanently.
H-1B visas are often used by the technology sector to bring highly skilled foreign guest workers to the United States. But critics say the laws governing these visas are lax and make it too easy to replace U.S. workers with cheaper, foreign labor.
The DOJ filed its administrative case with the Executive Office for Immigration Review, which is under the purview of the department, following a two-year investigation. A Facebook spokesman said the company disputes the allegations. Learn more about the DOJ's allegations against the tech giant.
Abbe Lowell, lawyer to the powerful, linked to 'bribery-for-pardon' probe
REUTERS/James Lawler Duggan
Abbe Lowell, the D.C. lawyer whose political clients have included Senator Bob Menendez, Jack Abramoff and Jared Kushner, is among those whose roles the DOJ has scrutinized during an investigation into what a judge recently called a "bribery-for-pardon" scheme, The New York Times reported.
The probe's details first emerged Tuesday in a heavily-redacted ruling released from 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.
The Times, citing people familiar with the matter, said the probe related to efforts by Lowell, a partner at Winston & Strawn, and Elliott Broidy, a top fundraiser for President Donald Trump, to secure clemency for Hugh Baras, a California psychologist who had been sentenced to 30 months in prison for tax evasion.
Reid Weingarten, Lowell's lawyer at Steptoe & Johnson, confirmed to Reuters that his client had represented Baras in his unsuccessful efforts and said no bribe was paid. He also said Lowell was never a target or subject of the DOJ's inquiry. "Abbe's lawyering was utterly normal," he said.
Broidy pleaded guilty in October to engaging in a different illegal lobbying scheme. Quinn Emanuel's William Burck, Broidy's lawyer, told Reuters that he "is not under investigation and has not been accused by anyone of any wrongdoing whatsoever." Read more.
Industry buzz
- The question of the hour: What's going on at Boies Schiller Flexner? The firm has lost nearly 60 partners this year, most recently co-managing partner Nick Gravante. The firm announced co-managing partner Natasha Harrison would be its next deputy chair and likely heir to firm founder David Boies. Both seem unfazed by the exits though in an interview with David Lat in his new newsletter. (Original Jurisdiction)
- A survey of 323 non-lawyer staff at law firms and in-house departments released by the legal tech company Athennian found 36% are struggling with mental health issues during the pandemic, which has battered the industry with layoffs and pay cuts. (Reuters)
- Ogletree is paying out "special" bonuses to associates, except they're maybe not so special. In the fall, the firm restored pay and announced a $10,000-plus special bonus for high billing associates but on Thursday announced that the bonus will "more than cover the 5% pay reductions that occurred between May and August." (Above The Law)
- Nelson Mullins partner Nekia Hackworth Jones will take the helm of the SEC's Atlanta regional office next month. (Reuters)
- E-discovery and information governance company Exterro has acquired digital forensic investigation tech provider AccessData. The nine-figure deal was the latest M&A transaction in the e-discovery sector. (Reuters)
Prosecutors say attorney's role in Rittenhouse fundraising 'provides ample opportunity for self-dealing and fraud'
Nam Y. Huh/Pool via REUTERS
Los Angeles-based litigator John Pierce appeared to distance himself from the criminal defense of Kyle Rittenhouse on Thursday after prosecutors in Wisconsin argued his involvement in a fundraising effort for the teenager "provides ample opportunity for self-dealing and fraud."
Pierce took on the 17-year-old as a client in August after Rittenhouse was charged with killing two people during summer protests in Kenosha amid civil unrest sparked by the police shooting of Jacob Blake, a Black man.
But in a motion Thursday, Kenosha County Assistant District Attorney Thomas Binger opposed the admission of Pierce and a colleague at his law firm Pierce Bainbridge. He cited Pierce's "substantial personal debts" and ties to an organization that raised money to benefit Rittenhouse, Caroline Spiezio reports.
Binger argued the money raised through #FightBack Foundation, a Texas-based organization led by conservative attorney L. Lin Wood, "appears to be simply a 'slush fund.'"
After the motion was filed, Pierce on Twitter announced he would be taking over civil matters and orchestrating all fundraising for defense costs, while local lawyer Mark Richards proceeds with the criminal defense. It was unclear if Pierce was leaving the case entirely. He did not respond to requests for comment. Read more.
Coming up today
- A Chinese professor arrested in Texas in 2019 after being accused of stealing technology from a California company to benefit Huawei is scheduled to plead guilty to making a false statement. Bo Mao, a computer science professor at Xiamen University in China who became a visiting professor at the University of Texas, will appear via video for the plea hearing in Brooklyn federal court. Morris Fodeman and Michael Sommer of Wilson Sonsini and Richard Roper of Thompson & Knight represent Mao.
- U.S. District Judge Edward Davila in San Jose will consider whether to approve a class action settlement in which Apple would pay up to $500 million to resolve claims it quietly slowed down or "throttled" older iPhones as it launched new models to induce owners to buy replacement phones or batteries. Apple, the DOJ and attorneys general from 12 states have urged the judge to reject a $87.7 million fee request by the plaintiffs’ firms who pursued the case, Cotchett, Pitre & McCarthy and Kaplan Fox & Kilsheimer.
- The Massachusetts Supreme Judicial Court will consider whether to uphold a ruling requiring Facebook to turn over material to the state’s attorney general about thousands of apps that the social media company suspected may have misused customer data. Attorney General Maura Healey's investigation into Facebook's privacy practices began in 2018 following news that the company let British political consulting firm Cambridge Analytica access data from as many as 87 million users. WilmerHale's Felicia Ellsworth is among those defending Facebook. The arguments can be watched online.
What we learned this week
- Two high-profile lawyers got new jobs. Boies Schiller co-managing partner Nick Gravante, who took the post a year ago, left for Cadwalader. Ex-SDNY chief Geoffrey Berman, who was ousted by Trump earlier this year, joined Fried Frank to head the firm's white-collar defense practice.
- A Michigan funeral home settled a landmark transgender bias case that prompted the U.S. Supreme Court to rule discrimination against transgender workers is a form of unlawful sex bias for $250,000.
- The Trump administration lost two immigration-related cases. A split 9th Circuit upheld injunctions barring the administration's "public charge" rule, that would prohibit immigrants who may need government assistance from receiving green cards or visas and U.S. District Judge Jeffrey White in Oakland, California, blocked the administration from implementing rules designed to limit participation in the H-1B work visa program.
- The Republican governors of five states are prepping to get litigious, vowing to fight Democratic President-elect Joe Biden's climate agenda if he tries to require the power sector to slash greenhouse gas emissions.
- And Hassan Kanu asks, in Biden's criminal justice plan, where’s police reform?
Data dive: Record-breaking immigration case backlog awaits Biden administration
Reuters data reporter Disha Raychaudhuri on the backlog of immigration cases.
When Biden is sworn in on Jan. 20, his administration will inherit a record-breaking backlog of immigration cases. The 2021 fiscal year began with 1.27 million pending civil immigration cases, the highest number to date, according to Transactional Records Access Clearinghouse, a research center at Syracuse University. Nationals from Guatemala, Honduras, Mexico and El Salvador made up the bulk of these pending cases - 918,673 or 72%. Four out of every 10 people waiting for a case hearing were from Guatemala and Honduras.
"In this case, there was no charging document that was brought. So how can we interpret the statute in a way that requires the government to have to notify a victim prior to an accused being named?"
U.S. Circuit Judge Barbara Lagoa, who was among those on the 11th Circuit who during arguments Thursday appeared skeptical of voiding a 2007 non-prosecution agreement with federal prosecutors that shielded Jeffrey Epstein from child sex charges, a deal that one of his alleged victims says prevents her from talking to prosecutors about possible co-conspirators. The court was reviewing the case en banc after a divided three-judge panel in April ruled that federal prosecutors did not violate the Crime Victims' Rights Act by keeping victims in the dark about the controversial non-prosecution agreement. (Reuters)
In the courts
- U.S. prosecutors are discussing a deal with lawyers for Huawei CFO Meng Wanzhou to resolve criminal charges against her, a person familiar with the matter said, signaling a potential end to a case that has strained ties between the United States, China and Canada. She's been subject to extradition proceedings in Canada and faces U.S. bank fraud charges for allegedly misleading HSBC about Huawei's business dealings in Iran, which was subject to U.S. sanctions. (Reuters, Wall Street Journal)
- The U.S. subsidiary of Swiss trading firm Vitol Group agreed to pay $164 million to resolve allegations by the U.S. government that the energy trader paid bribes in Brazil and other countries to boost its oil trading business. Federal prosecutors in Brooklyn said $45 million of the total payment would go to Brazilian authorities to resolve allegations in that country. Simpson Thacher's Jeffrey Knox and Joshua Levine counseled the company in its decision to enter into a deferred prosecution agreement. (Reuters)
- A three-judge 2nd Circuit panel appeared skeptical of arguments by the Democratic-leaning states of New York, Connecticut, Maryland and New Jersey to overturn a cap on federal deductions for state and local taxes that Trump signed into law in 2017 as part of a $1.5 trillion tax overhaul. The so-called SALT cap limits to $10,000 the state and local taxes that households itemizing their deductions could write off of their federal returns. (Reuters)
- Pharmaceutical company Vivus through lawyers led by Weil Gotshal's Matthew Barr obtained approval of its reorganization plan, nearly three months after U.S. Bankruptcy Judge Laurie Selber Silverstein in Wilmington, Delaware, took the rare step of rejecting an earlier version. The plan includes a settlement with an official equity committee, which the judge appointed after questioning Vivus' estimated enterprise valuation incorporated in the initial version. (Reuters)
- A federal prosecutor in Brooklyn pushed the 2nd Circuit during arguments on Thursday to reinstate the fraud convictions of Mark Nordlicht, founder of the defunct hedge fund Platinum Partners, and its former co-chief investment officer, David Levy. But their lawyers - Quinn Emanuel’s William Burck for Nordlicht and Wilson Sonsini’s Michael Sommer - argued the evidence could not support their guilty verdicts. (Reuters)
- McKinsey & Company has agreed to forgo fees incurred during the 2018 bankruptcy of coal producer Westmoreland Coal under a settlement that resolves a probe by the U.S. Trustee’s office - the DOJ’s bankruptcy watchdog - into the global consulting firm’s potential conflicts of interest in the case. Lawyers at Selendy & Gay and Debevoise & Plimpton advised McKinsey. (Reuters)
- The U.S. Supreme Court delivered a blow to California Governor Gavin Newsom’s pandemic-related ban on indoor religious services, siding with a church that defied the policy and challenged it as unconstitutional religious discrimination. The decision came after the justices on Nov. 25 backed Christian and Jewish houses of worship that challenged New York state restrictions in coronavirus hot spots. (Reuters)
Industry moves
- Koorosh Talieh joined Hunton Andrews Kurth as an insurance recovery partner in D.C., moving over from Perkins Coie. (Hunton Andrews Kurth)
- Foley Hoag added Luciano Racco as counsel and co-chair of its trade sanctions and export control practice in D.C. He was previously assistant general counsel, global trade, at Raytheon’s Collins Aerospace and Pratt & Whitney divisions. (Foley Hoag)
- King & Spalding named 16 new partners in Atlanta, Chicago, Denver, London, Los Angeles, New York, Northern Virginia and D.C. (King & Spalding)
Columnist spotlight: What if holiday movies were about lawyers?
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