Good morning. Trump ally Sidney Powell suffered two big election-related court losses, employers are weighing their risks for mandating COVID-19 vaccines as Pfizer and Moderna seek emergency authorization of theirs, health lawyers are buzzing about California Attorney General Xavier Becerra's potential new gig as secretary of health and human services in the Biden administration, and David Boies says he isn't worried about the mounting partner losses at the eponymous Boies Schiller Flexner. Let's go!
Were you forwarded this email? Subscribe here.
'Kraken' attorney Powell suffers more court losses over election
Conservative attorney Sidney Powell's promise to "release the Kraken" through lawsuits challenging President Donald Trump's loss at the ballot box suffered a pair of defeats on Monday, with one judge saying: "The people have spoken."
U.S. District Judge Linda Parker in Detroit and U.S. District Judge Timothy Batten in Atlanta ruled that Republican voters repped by Powell lacked standing to bring the lawsuits and that the cases were filed too late, Tom Hals and Makini Brice report.
Those rulings are the latest in a series of court losses by Trump and his allies. The two lawsuits sought to decertify Democratic President-elect Joe Biden's victories in Michigan and Georgia.
Batten during a hearing said the plaintiffs "want this court to substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden, and this I am unwilling to do."
Parker in a blistering ruling said the Michigan case "seems to be less about achieving the relief plaintiffs seek - as much of that relief is beyond the power of this court - and more about the impact of their allegations on people's faith in the democratic process and their trust in our government." Read more about the cases.
Legal questions arise over whether employers can mandate COVID-19 vaccines
Can employers require workers to take a COVID-19 vaccine? That question has taken on a new urgency as the FDA gears up to consider granting emergency use authorization for vaccines developed by Pfizer and Moderna.
While it's not clear what federal regulators will advise employers to do, there is some precedent for allowing companies to mandate vaccines: In 2009, the EEOC put out guidance that said employers may generally require employees to get a flu vaccine. Daniel Wiessner spoke with Kasowitz Benson Torres employment partner Jessica Taub Rosenberg about whether the COVID-19 vaccine would be different.
"I think that makes it a bit trickier for the EEOC and OSHA to decide how to guide employers," she said. "There's much more certainty (when the FDA formally approves a vaccine) because the standard is that the vaccine is effective. With this emergency use authorization, the standard is it may be effective." Read on to learn about the liability risks employers could face, and check out our video interview with Rosenberg.
Industry buzz
- Selendy & Gay promoted two of its associates to partner for the first time ever. Joy Odom and Oscar Shine were among the first associates to join the firm when it opened in February 2018 and will become partners on Jan. 1. (Reuters)
- Littler Mendelson pledged to double the percentage of women, people of color and LGBTQ+ identifying people in its top-paid ranks within the next five years, making it among the first law firms to introduce a diversity and inclusion plan explicitly focused on compensation. (Reuters)
- The parade of year-end bonus news arriving in Big Law associates' inboxes is continuing:
-
Sullivan & Cromwell, having already doled out special bonuses in the fall rush, is offering associates year-end bonuses of up to $100,000, matching the market rate set by New York rival Cravath last month. (Above the Law).
-
Kramer Levin announced year-end bonuses for associates of up to $100,000 plus "special" bonuses but with a caveat. The firm will pay out $7,500 to $40,000 to associates who billed 1,800 bonus-eligible hours, of which at least 1,600 hours must be some combo of time spent on billable matters and partner-directed business development. (Above the Law)
-
Fenwick & West also matched the prevailing market rate for year-end and special bonuses but will give an additional $20,000 to associates, counsel and of counsel who billed over 2,300 hours, plus additional cash for relaxation. (Above the Law)
- Benjamin Moore laid off its entire four-person legal department. A source told Corporate Counsel that the paint company for financial reasons decided to outsource its legal department, including to Littler Mendelson and independent contractors. (Corporate Counsel)
Health lawyers ready for Becerra as potential new HHS chief
With news that President-elect Joe Biden had tapped California Attorney General Xavier Becerra as his nominee for secretary of health and human services, The Daily Docket asked some health attorneys their thoughts on the choice and what they're anticipating for policy changes.
|
Nancy Taylor Greenberg Traurig
|
Nancy Taylor of Greenberg Traurig: "Becerra is a very thoughtful, measured thinker and cares a lot about healthcare issues. I think he will be on the run immediately on issues related to COVID-19 vaccine disaster preparation, without a doubt. He was a member of Congress during consideration of the Affordable Care Act, and he'll want to see it strengthened."
|
William McConagha Skadden
|
Bill McConagha of Skadden: "Beyond COVID, there are other pressing issues, and the new administration will have to take stock of the policies developed by the Trump administration on prescription drug importation, price transparency, vaping products, and most favored nation. The new administration is also clearly poised to revisit the Affordable Care Act, but political dynamics and legal challenges are certain to impact what's possible"
|
Delphine O'Rourke Goodwin Procter
|
Delphine O'Rourke of Goodwin Procter: "Women's health, increasing access to affordable health insurance coverage and ensuring high quality care for all Americans will be top priorities for the Biden administration. The appointment of Xavier Becerra will pivot the current philosophy, regulations and practices around access, delivery, payment and investment, and we expect much more partnering between the federal and state agencies."
Video: Inside retail bankruptcies
Reuters journalist Alex Cohen spoke with lawyers who work on bankruptcies and others who track them about the struggles of the retail sector during this key holiday shopping season. Watch the full video here.
Coming up today
- The U.S. Supreme Court hears oral arguments over a bid by Facebook to stave off a class action accusing it of violating a federal consumer protection law by sending certain unsolicited text messages. Paul Clement of King & Spalding will argue the case for Facebook and will face Bryan Garner of Garner & Garner for the plaintiffs. The arguments can be heard live on C-SPAN at 10 a.m. ET.
- Trade associations for Puerto Rico's cockfighting industry will urge the 1st Circuit to strike down a federal ban on the territory's "national sport," which went into effect last year as part of the annual Agriculture Improvement Act. Edwin Prado-Galarza of Prado, Nunez & Associates will argue for the groups and will go up against Jeffrey Bossert Clark of the DOJ, who will defend the federal ban. The arguments can be watched via YouTube at 2 p.m. ET.
- The city of Berkley, California, during a virtual hearing will push U.S. District Judge Yvonne Gonzalez Rogers to dismiss a lawsuit by the California Restaurant Association challenging a ban it imposed last year on the use of natural gas in newly constructed buildings. Lawyers at Reichman Jorgensen, Weinberg Wheeler Hudgins Gunn & Dial and Kellogg, Hansen, Todd, Figel and Frederick are pursuing the case for the industry trade group.
- The 4th Circuit will consider the responsibilities immigration judges have to develop the record in asylum cases when applicants do not have legal representation. Susan Baker Manning of Morgan Lewis will argue on behalf of Miguel Arevalo-Quintero, an El Salvadorean national who represented himself in immigration court, that the judge who denied his asylum application had a heightened duty to determine whether the facts presented placed him within a protected social group. Jenny Chong Lee of the DOJ will argue for the government. The arguments will stream live on YouTube at 9:30 a.m. ET.
- Ascena Retail Group through lawyers at Kirkland & Ellis and Cooley will ask U.S. Bankruptcy Judge Kevin Huennekens in Richmond, Virginia, to approve the proposed sale of its Ann Taylor, LOFT, Lane Bryant and Lou & Grey brands to Sycamore Partners for $540 million. Sycamore's offer was announced last month.
"This adds yet another gaping hole to the Swiss cheese the Trump administration has been systematically making of our country’s essential civil rights protections."
Jennifer Pizer, director of law and policy at LGBT group Lambda Legal, in response to a final rule the U.S. Department of Labor released on Monday that expands a religious exemption from anti-discrimination laws for federal contractors. LGBT groups and other critics say the rule will give businesses a license to discriminate. (Reuters)
In the courts
- U.S. District Judge Carl Nichols in D.C. has become the second judge nationally to block the U.S. Commerce Department from imposing restrictions on Chinese-owned short video sharing app service TikTok that would have effectively barred its use in the United States. The Trump administration contends TikTok, represented by lawyers including Covington & Burling's John Hall, poses national security concerns as the personal data of U.S. users could be obtained by China's government. (Reuters)
- The 9th Circuit nixed the approval of what could become the country's first offshore oil production facility in federal Arctic waters. The court found the Bureau of Ocean Energy Management botched various environmental analyses before authorizing HilCorp's 70,000 barrels a day project off the northern coast of Alaska. The environmental groups Center for Biological Diversity and Earthjustice pursued the challenge. (Reuters)
- U.S. Supreme Court justices heard arguments in the two cases involving Germany and Hungary arising out of World War Two that hinge upon the Foreign Sovereign Immunities Act, which limits the jurisdiction of American courts over lawsuits against foreign governments. Those cases include a lawsuit against Germany over medieval artwork that its former Nazi government pressured Jewish art dealers to sell in the 1930s. (Reuters)
- Mr. Cooper Group Inc, the largest non-bank mortgage servicer in the United States, agreed to pay $28.6 million to settle allegations by federal and state regulators that it engaged in deceptive servicing practices between 2010 and 2015. The CFPB in a lawsuit alleged the company, previously known as Nationstar Mortgage, unlawfully foreclosed on homes and engaged in other unfair practices. Its lawyers include Thomas Hefferon and Matthew Riffee of Goodwin Procter. (Reuters)
- U.S. Bankruptcy Judge John Dorsey in Wilmington, Delaware, during a hearing told Mallinckrodt's lawyers at Latham & Watkins that he has concerns about the drugmaker's request to cover legal costs incurred by creditors including state and local governments suing over the opioid crisis after they signed on to its proposed restructuring. (Reuters)
- Class action watchdog Ted Frank of the Hamilton Lincoln Law Institute urged the 9th Circuit to throw out a class action settlement over ConAgra's labeling of Wesson cooking oil as "natural" in which plaintiffs' lawyers got $6.8 million while class members got less than $1 million. "A seven-to-one ratio is just simply unacceptable," he said. (Reuters)
Industry moves
-
White & Case picked up two restructuring partners from Ropes & Gray, including the firm's New York managing partner and restructuring practice co-chair Keith Wofford. Wofford joins in New York and Stephen Moeller-Sally joins in Boston. (Reuters)
- Bernard McNamee, who recently stepped down from serving as a commissioner on the Federal Energy Regulatory Commission, has rejoined McGuireWoods as a partner in its Richmond, Virginia, office. (Reuters)
- Courtney Devon Taylor joined Hogan Lovells as a partner in the litigation, arbitration and employment practice in Philadelphia and New York, moving over from Schnader Harrison Segal & Lewis, where she was vice-chair of the firm's securities litigation practice group. (Reuters)
-
K&L Gates added Paul Eckles as a partner in the litigation and dispute resolution practice. He joins the firm's Charleston office from the New York office of Skadden, where he practiced for 25 years. (K&L Gates)
-
Nick Marchia joined Allen & Overy as a partner in the firm’s private equity group in New York, moving over from Baker McKenzie where he was chair of the transactional practice group. (Allen & Overy)
Columnist spotlight: Transition pains, or worse, at Boies Schiller?
With nearly 60 partner exits this year, Boies Schiller Flexner, and its future, have been the topic of much speculation. Firm founder David Boies spoke with Jenna Greene this past weekend and touched on everything from why the partner losses don’t worry him, his confidence in the firm's overall finances, his faith in co-managing partner Natasha Harrison to take the reins as deputy chair, and the firm's culture moving forward. "The predominant view has been and is that we think we have a unique culture of collegiality, of world-class dispute resolution," Boies told Greene. "We are not conflict-free, but we reduce conflicts by being litigation-only focused - and we preserve collegiality by not being part of a 1,000-lawyer firm." Read Greene's full column here.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: The treatment of unpaid federal income tax claims in bankruptcy
Copyright © 2020 Thomson Reuters. All rights reserved. 610 Opperman Drive, Eagan, MN 55123
Want to change how you receive these emails? You can unsubscribe from this list here.
|