Good morning. President Donald Trump is pardoning Paul Manafort and Roger Stone, law firm leaders are reviewing vaccine policies, a big drug pricing rule by the Trump administration has been blocked by a judge, and an American Bar Association survey finds that judges nationally are struggling with job-related stress.
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Trump gifts Manafort, Stone with pre-Christmas pardons
President Donald Trump late Wednesday issued more pre-Christmas pardons to associates and allies, granting celemency to his former campaign chairman Paul Manafort, his longtime friend and adviser Roger Stone, and the real estate developer Charles Kushner, the father of Trump's son-in-law.
Steve Holland reports that Manafort and Stone join three other people convicted in relation to Special Counsel Robert Mueller's probe into Russian meddling in the 2016 presidential election to receive pardons from a president who long mocked the probe as a hoax.
Manafort was sentenced to 7-1/2 years in prison for crimes including tax fraud related to his work in Ukraine. Stone was convicted of lying to lawmakers investigating Russian interference.
They are among 41 people Trump has pardoned since Tuesday, including Charles Kushner, Jared Kushner's father, sentenced in 2005 to two years in prison for tax evasion and making unlawful campaign donations. Trump commuted eight others' sentences in full or part.
Others pardoned include Robert Coughlin, a former DOJ official who pleaded guilty in 2008 to breaking conflict-of-interest laws by doing favors for an associate of disgraced lobbyist Jack Abramoff, and two former Hollinger International executives convicted of a fraud scheme involving former media mogul Conrad Black, who Trump pardoned last year. Read more.
Should law firms require employee vaccinations? Three leaders discuss.
With COVID-19 vaccinations now underway, law firms whose lawyers spent much of 2020 working from home now face a decision: To what extent should they require employees to be vaccinated to work in the office? The Daily Docket checked in with three law firm leaders who say they are evaluating the issue.
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David Taylor Locke Lord
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David Taylor, chair of 640-lawyer Locke Lord: "We're looking at that, but we have not made any specific decisions. Obliviously with offices in almost 20 cities, there's going to be different local standards and issues as we've seen all year long. And there's going to be different people who have opportunities to have the vaccine in our firm before others."
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John Adkisson Fish & Richardson
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John Adkisson, president and CEO of 360-lawyer Fish & Richardson: "You can see the arguments on that cutting both ways. You can see people saying 'I want to come back but I don't want to be vaccinated because I just don't feel comfortable getting vaccinated.' But at the same time, especially if you're working in a high density situation, I think you can reasonably say I want to make sure that not only am I vaccinated but the person next to me has been vaccinated."
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Elliott Portnoy Dentons
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Elliott Portnoy, global CEO of 10,000-lawyer Dentons: "As it relates to access, in some jurisdictions, it would be legally impermissible for us to require a vaccine. So each jurisdiction will make a determination as to how to protect the safety and well-being of our people. We've engaged a team of epidemiologists and public health experts to guide our efforts."
Industry buzz
- A bunch of Big Law partners were tapped for White House counsel posts in the Biden administration. WilmerHale's Jonathan Cedarbaum will serve as deputy counsel to the president and national security council legal advisor. WilmerHale's Danielle Conley will serve as deputy counsel to the president. Gibson Dunn's Stuart Delery will be deputy counsel to the president. Jonathan Su of Latham & Watkins will also be deputy counsel to the president. (Reuters)
- Joseph Bachelder III, a New York lawyer who became well known for representing executives in compensation negotiations, has died at the age of 88. Bachelder represented former Merrill Lynch CEO Stan O'Neal in collecting on a $161.5 million golden parachute when O'Neal was forced to resign from the bank in 2007. Bachelder founded the boutique law firm the Bachelder Law Firm in the 1980s. It was closed when he joined McCarter & English as special counsel in 2012. (Wall Street Journal)
- In a roller coaster market, which firms advised on the year's biggest deals? Davis Polk, Kirkland & Ellis and Wachtell, to name a few. (Reuters)
- Seward & Kissel held its inaugural virtual pet show. Naomi Boico's Yoda the chihuahua, Raven Wells-Scott's Snoop the cat and Sagar Patel's Peeps the canary showed off their talents and took home the top prizes for each of their categories, but who took home best in show? Watch here.
- The pass rate for New Jersey's October online bar exam was 66%, up only slightly from the 65% average of past in-person exams. The October test also saw 79% more test takers, likely due to New York's limits on slots for its October online exam. (New Jersey Law Journal)
- Got lost in the flurry of December lateral moves? Catch up with Career Tracker. (Reuters)
Trump's rushed drug pricing rule 'falls flat,' judge says
A last-minute attempt by the outgoing Trump administration to lower drug prices by tying payments by Medicare for some medications to the lowest price paid by certain other countries was blocked on Wednesday by a federal judge at the pharmaceutical industry's request, Brendan Pierson reports.
U.S. District Judge Catherine Blake in Baltimore wrote that she was "not unsympathetic" to the administration's desire to test a new model to rein in Medicare drug costs. But she said it could not dispense with the typical rulemaking procedures simply because it wanted to implement the rule immediately.
Those procedures? Giving the public notice of a new rule and the chance to comment on it. The U.S. Department of Health and Human Services said it had good cause to skip that step, claiming the COVID-19 pandemic created a Medicare drug pricing emergency.
But Blake said that reason "falls flat," adding that significant value exists in letting the public comment on such a long-term change that could affect billions of dollars in drug spending.
The ruling was a victory for groups including the pharmaceutical industry trade association PhRMA, represented by John Elwood of Arnold & Porter Kaye Scholer. Other lawsuits are also pending. Learn more about the litigation.
Coming next week
- The FTC on Monday will go before U.S. District Judge Amy Berman Jackson in D.C. to request that she set a schedule for its lawsuit aimed at stopping Procter & Gamble from buying women’s razors and body care products company Billie Inc that would allow the antitrust case to go to trial on April 12. The schedule is being jointly proposed by the regulator, P&G's lawyers led by John Majoras of Jones Day and attorneys for Billie including Eric Mahr of Freshfields.
- A New York state judge on Long Island will hear arguments on Tuesday in a lawsuit by a group of state judges who say they are being forced to retire because of their age. New York's mandatory retirement age for judges is 70, and this year the state court system largely stopped issuing waivers allowing many of them to serve until they turn 76. Court officials have said the move was necessary because of a budget deficit, but the judges in their lawsuit before Suffolk County Supreme Court Justice Paul Baisley claim they were unlawfully targeted because of their age and are still fit to serve. Y. David Scharf of Morrison Cohen and James Catterson of Arnold & Porter Kaye Scholer are pursuing the case on the judges' behalf.
- The former CEO of the utility company SCANA Corp is scheduled to plead guilty on Tuesday before U.S. District Judge Mary Geiger Lewis in Columbus, South Carolina, to charges that he deceived regulators and customers about the true state of a failed $9 billion nuclear plant construction project in South Carolina. The plea deal with former CEO Kevin Marsh was made public shortly before Dominion Energy, which acquired SCANA in 2019, finalized an agreement to pay a $25 million penalty to resolve related civil charges by the SEC. His attorneys include J. Brady Hair of Hair & Van Raalte and Anne Tompkins of Cadwalader.
- Lawyers for Apple and "Fortnite" creator Epic Games will appear before U.S. Magistrate Judge Thomas Hixson in San Francisco on Tuesday for a hearing in the "Fortnite" game creator's antitrust lawsuit challenging Apple's App Store payment restrictions. Epic's lawyers at Cravath requested the hearing to address disputes surrounding the production of documents and data that Epic has requested. Apple's lawyers are at Gibson Dunn.
- Offshore driller Valaris through lawyers led by Jeffrey Zeiger of Kirkland & Ellis on Wednesday will request approval from U.S. Bankruptcy Judge Marvin Isgur in Houston to begin soliciting creditor votes for its proposed reorganization plan, which would convert existing debt to equity. The London-based company filed for bankruptcy in August with $7.9 billion in debt.
Data dive: Consumer spending on legal services plunges in pandemic
Reuters data journalist Rick Linsk reports updated measurement of legal economy.
New data released on Tuesday from government economists provided another indication of how some segments of the legal industry took a big hit in the pandemic. The data on "personal consumer expenditures" from the U.S. Bureau of Economic Affairs - known more popularly as consumer spending - illustrates how spending on legal services decreased earlier this year and has come back slightly. Consumer spending, considered important because it makes up 70% percent of the economy, doesn't include legal spending by businesses, according to the BEA.
"It is critical to judicial performance that tactics bolstering resiliency and mitigating stress are embraced by the judiciary and key stakeholders."
The authors of a new report in the 2020 Journal of the Professional Lawyer, which cited a recent survey by the American Bar Association to conclude that U.S. judges are struggling with job-related stress. One-third or more of those surveyed reported symptoms such as fatigue, sleep disturbance or disturbed attention and concentration. (Reuters)
In the courts
- The SEC filed a lawsuit accusing a 23-year-old Australian hedge fund founder of defrauding investors in his $92.4 million cryptocurrency arbitrage fund. In a lawsuit filed in Manhattan federal court, the SEC said Virgil Capital founder Stefan Qin fabricated records, failed to redeem $3.5 million in investments and sought to withdraw $1.7 million in investor funds to pay off Chinese loan sharks. His lawyers, Sean Hecker and Shawn Crowley of Kaplan Hecker & Fink, said he intends to cooperate and is "committed to ensuring that no investors are harmed."(Reuters)
- The 4th Circuit has agreed to rehear a challenge to the Baltimore Police Department's aerial surveillance pilot program, which ran for six months this year. A three-judge panel last month declined a request by local activists represented by the ACLU to block the police department from proceeding with the program. (Reuters)
- The Third Court of Appeals of Texas dismissed a lawsuit by Texas Attorney General Ken Paxton state against Volkswagen stemming from the company's "dieselgate" emissions cheating scandal and its installation of "defeat device" software in diesel cars aimed at evading compliance with U.S. emissions standards. The three-judge panel said Texas courts lacked jurisdiction over VW. Defense lawyer Robert Giuffra of Sullivan & Cromwell called the decision "well-reasoned." (Reuters)
- A coalition of Alaska Native tribes and environmentalists filed a lawsuit challenging a new Trump administration policy that opens vast swaths of the largest national forest to logging, mining and other commercial development. The lawsuit being pursued by lawyers at the Natural Resources Defense Council and Earthjustice seeks to reinstate prohibitions on road-building through previously protected areas in the Tongass National Forest of southeastern Alaska. (Reuters)
- Sabre Corp has agreed to pay $2.4 million to resolve a multistate investigation by state attorneys general stemming from a 2017 data breach of its hotel booking system that exposed the data of 1.3 million credit cards. Benjamin Powell of WilmerHale advised Sabre. (AP)
- Softbank cannot assert privilege over 89 emails sent by executives with overlapping duties at Softbank, Sprint and WeWork because they used their Sprint email accounts to discuss Softbank and WeWork, Delaware Chancellor Andre Bouchard ruled. (Alison Frankel's On the Case)
Columnist spotlight: Congress hid a big gift to the SEC in defense spending bill
The National Defense Authorization Act for 2021, which codifies $740 billion in Defense Department spending policies, would rename military bases commemorating Confederate generals and does not repeal liability protections for internet companies like Google, Facebook and Twitter is widely expected to become law despite President Trump’s veto. But hidden in the NDAA is a provision that grants the SEC an extra five years to seek disgorgement from securities fraudsters, doubling the five-year statute of limitations for disgorgement that the U.S. Supreme Court established in 2017's Kokesh v. SEC. Alison Frankel spoke with Baker Hostetler's Teresa Goody Guillén and Kevin Edgar about what this means going forward and how the provision ended up in the NDAA in the first place. Read her full column here.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
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