Jan. 6, 2021

Good morning. Democrats are on the brink of controlling the U.S. Senate after Georgia's runoff election, conservative political law attorney Cleta Mitchell is leaving Foley & Lardner's partnership after participating in President Donald Trump's controversial call to Georgia's secretary of state, a Reuters review finds a series of COVID-19 outbreaks occurred at workplaces despite complaints to the U.S. Occupational Safety and Health Administration, and new league tables show Davis Polk and Latham & Watkins ended 2020 among the top legal deal advisers. Let's go!

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Cleta Mitchell leaves Foley & Lardner after blowup over Trump's Georgia call

C-SPAN/Handout via REUTERS

Foley & Lardner on Tuesday said Cleta Mitchell resigned from the law firm, a day after it said it was "concerned" about her involvement in a call in which President Donald Trump pressured Georgia's top election official to "find" enough votes to overturn his defeat in the state.

Caroline Spiezio reports that the 1,000-lawyer firm in a statement said that Mitchell, a Republican political law attorney in D.C., "concluded that her departure was in the firm’s best interests, as well as in her own personal best interests."

Her resignation came after the firm faced blowback on social media for her involvement, including from The Lincoln Project, a group of anti-Trump Republicans that on Twitter urged its 2.7 million followers to call the firm.

That call overshadowed Tuesday's runoff U.S. Senate election in Georgia, where Democrats won one race and hold a narrow lead in another, putting them closer to control of the chamber.

During the call, Mitchell, on Trump's behalf, can be heard asking Georgia officials for voter data and raising concerns that dead people and non-residents may have accounted for thousands of Georgia votes against Trump, allegations officials said they had investigated and found to be unfounded. Find out more about her role in the affair.

COVID-19 outbreaks came amid failures of U.S. workplace safety regulators

REUTERS/Caitlin O'Hara

As the COVID-19 pandemic gripped the United States, many workers worried about their employers' lax safety practices took their concerns to the U.S. Occupational Safety and Health Administration.

But an examination by Reuters found dozens of cases where regulators largely disregarded employee warnings about slipshod pandemic safety practices around the time of outbreaks.

Chris Kirkham and Benjamin Lesser identified at least 106 workplaces where there were outbreaks and employees had sounded alarms -- yet regulators either never inspected the facilities or in some cases waited months to do so. More than 4,500 workers were infected and 26 died at 70 of the workplaces where OSHA never did inspections.

Those instances include a Tyson plant in Indiana where nearly 900 employees contracted COVID-19 around the time workers sent 13 complaints to OSHA.

"This is the sort of workplace crisis that OSHA was invented to address," said David Michaels, who led OSHA during the Obama administration and is now a professor at George Washington University's school of public health. "OSHA needed to be more forceful and creative to use the tools it has, but it decided not to." Learn more about how OSHA responded.

Industry buzz

Robin Cohen and her 12-lawyer insurance recovery team are departing 150-lawyer McKool Smith to launch New York-based boutique Cohen Ziffer Frenchman & McKenna with more than 20 lawyers and staff. (Reuters)
Gayle Klein, McKool Smith's financial litigation co-chair also left the firm to join Schulte Roth & Zabel in New York. Klein, who was on McKool Smith's executive committee, said her departure was unrelated to the insurance recovery team exit. (Reuters)
Last year saw only 65 law firm mergers, a 43% drop from 2019's record-breaking 115, but Altman Weil, a law firm consultancy that tracks law firm merger announcements, is expecting to see more deals reached in 2021 after the pandemic smothered activity last year. (Reuters)
Yasmin Waljee, who currently co-leads Hogan Lovells' social impact practice and manages its worldwide community investment program from London, was named the firm’s first Europe-based pro bono partner as part of Hogan’s 25-member partner class. (Reuters)
Chicago-based litigation funder Delta Capital Partners has brought on Peter Cornell, a former managing partner of Clifford Chance who went on to work in private equity, to serve as its president. (The American Lawyer)

Many of Trump's immigration policies will be on the chopping block in 2021

The Trump administration dramatically transformed the U.S. immigration system, enacting dozens of policies, and the pace of change only accelerated in 2020, when the administration used the pandemic to justify further restrictions. President-elect Joe Biden has vowed to undo many of them. What will he likely tackle first? Read Dan Wiessner's full report or watch the video here.

Davis Polk, Latham lead on global M&A

Davis Polk ended 2020 as the top-ranked law firm advising on mergers and acquisitions globally as ranked by dollar value in a year that saw a dealmaking decline.

Data from Refinitiv shows that Davis Polk led with 167 announced deals valued at a combined $448.02 billion. It was followed closely by Latham & Watkins, which Caroline Spiezio reports led the industry by deal value on transactions that had any U.S. involvement, passing perennial leader Wachtell Lipton.

Overall, worldwide M&A activity totaled $3.6 trillion, down 5% compared to 2019. That deal tally marked the lowest amount seen for dealmaking since 2017. An early-year slump in M&A during the onset of the pandemic gave way to a bounce-back in mid-2020 and a deal frenzy in September. Learn more about how firms stacked-up on M&A.

Coming up today

Celebrity attorney Michael Avenatti is expected during a status conference before U.S. District Judge James Selna in Santa Ana, California, to seek to have delayed by at least six months his Feb. 23 trial on charges that he defrauded several clients, lied to the Internal Revenue Service and defrauded a Mississippi bank. Avenatti faces a separate trial in Manhattan federal court on April 26 on charges he defrauded adult film actress Stormy Daniels out of proceeds from a book contract. He was convicted last year of trying to extort up to $25 million from Nike.
Former New England mob boss Francis "Cadillac Frank" Salemme and an associate will ask the 1st Circuit in Boston to overturn their convictions and life sentences for the 1993 murder of a nightclub owner whose remains were discovered buried in Rhode Island more than four years ago.
The 1st Circuit will also consider whether to revive a proposed class action by 401(k) participants accusing Fidelity of engaging in a pay-to-play scheme that allowed the investment giant to reap fees from third-party fund managers in violation of its duties under the Employee Retirement Income Security Act. Alec Berin of Shepherd Finkelman Miller & Shah and Bradley Garcia of O'Melveny will argue for the plaintiffs and Fidelity, respectively.
Canadian fashion mogul Peter Nygard is expected to ask a judge in Winnipeg, Manitoba, to grant him bail after spending several weeks in jail on U.S. sex trafficking and racketeering charges. Jay Prober, his lawyer in Winnipeg, has said he "vehemently denies all the allegations." He is repped in New York, where the federal case was filed last month, by Elkan Abramowitz of Morvillo Abramowitz Grand Iason & Anello.

"Everybody has seen the video. And so from their perspective, they have tried this case, at their computer screen or in their living room. As a professional, I am called upon to talk about how to try this case, in a real jury room in a real court."

Kenosha County District Attorney Michael Graveley, in announcing prosecutors had cleared Rusten Sheskey, a white police officer, of criminal charges in the shooting of Jacob Blake, a Black man, from behind in the presence of his young children. Protests broke out last summer in response to viral cellphone video that showed Blake walking around the front of his car with Sheskey following and opening fire after Blake opened the door. (Reuters)

In the courts

A British judge rejected a request to release WikiLeaks founder Julian Assange after ruling against extraditing him to the United States on the grounds that his mental health problems meant he would be at risk of suicide. The DOJ has charged Assange in connection with the release by WikiLeaks of vast troves of confidential U.S. military records and diplomatic cables which they say put lives in danger. (Reuters)
A federal judge in Alaska ruled the Trump administration’s planned auction of oil drilling leases in the Arctic National Wildlife Refuge could proceed as planned today. The order by U.S. District Judge Sharon Gleason comes after environmental groups and the indigenous people of northeastern Alaska sought a preliminary injunction to block the sale in the ecologically sensitive area. (Reuters)
Overall bankruptcy filings in 2020 were at their lowest since 1986 and saw a 30% drop from 2019, though Chapter 11 cases climbed to new heights, indicating that the COVID-19 pandemic had a different financial impact on individuals versus corporations, according to federal court data analyzed by the American Bankruptcy Institute. (Reuters)
Oracle has agreed to drop its lawsuit claiming the U.S. Department of Labor lacks the power to prosecute discrimination cases against government contractors. The move comes after the agency lost a high-profile case accusing the tech company of widespread pay discrimination. Andrew Silverman of Orrick represented Oracle. (Reuters)
Democratic attorneys general in seven states and the District of Columbia filed a lawsuit in Manhattan federal court seeking to void a rule by the Office of the Comptroller of the Currency they said could encourage predatory lending by preventing them from enforcing state laws against exploitative interest rates. (Reuters)
The 8th Circuit upheld an order blocking Arkansas state restrictions on abortions after 18 weeks and abortions performed because of a fetal test indicating Down syndrome. The ruling was a victory for abortion provider Little Rock Family Planning Services and the lawyer who argued the case for it, Kendall Turner of O'Melveny & Myers. (Reuters)
The string of court losses businesses have suffered in lawsuits against insurers who refused to cover their losses for COVID-19 shutdowns has continued into 2021 with at least four dismissals in three states already. Most recently, U.S. District Judge Joseph Goodwin in Charleston, West Virginia, tossed a proposed class action filed by a restaurant against State Automobile Mutual Insurance Co, represented by lawyers at Jenkins Fenstermaker and BatesCarey. (Alison Frankel's On the Case)

Industry moves

Internet and data privacy attorney Tod Cohen has joined O'Melveny as a partner in its D.C. office. He previously served in in-house legal positions at several well-known tech companies, most recently Twitter, where he was deputy general counsel and vice president. (Reuters)
Litigator Steven Feldman has joined Latham & Watkins as a partner in its litigation and trial department and resident of its Los Angeles and New York offices. He was previously with Hueston Hennigan. (Latham & Watkins)
M. Chadwick Stackhouse has joined Cadwalader, Wickersham & Taft's fund finance practice in D.C. He was previously with Troutman Pepper, where he led the firm’s fund finance practice and was formerly the managing partner of its D.C. and Tyson Corner, Virginia, offices. (Cadwalader)
Jason Ben joined Freeborn & Peters' bankruptcy and financial restructuring practice as a partner in Chicago, moving over from Goldstein & McClintock. (Freeborn)
Davis Wright Tremaine added satellite and telecom lawyer Lafayette Greenfield as a partner in its Washington, D.C. office. He joins from Milbank. (Davis Wright)
Douglas Landy also left Milbank, where he led the fintech and regulatory practices, and joined White & Case's financial services regulatory practice as a partner in New York. (Reuters)
Willkie Farr & Gallagher added Britt Mosman, former attorney-advisor at the U.S. Department of Treasury, as a partner in the global trade and investment practice group in Washington, D.C. (Willkie)

Columnist spotlight

Take it from the "Trump" judges: There was no election fraud. President Trump and his lawyers have struck out again and again in court. Their record is 1-62 in post-election lawsuits. But Trump and his allies still refuse to concede defeat in the 2020 election. In her latest column, Jenna Greene takes a moment to salute the "Trump" judges who have declined to side with the man who appointed them, including 3rd Circuit Judge Stephanos Bibas and U.S. District Judge Jeremy Kernodle of the Eastern District of Texas. Instead, they've acted (as Supreme Court Chief Justice John Roberts once put it) as neutral umpires, "to call balls and strikes and not to pitch or bat." Read her full column here.

$550 million busted deal trial between private equity funds kicks off in Chancery Court. Another "material adverse effect" trial kicked off in the Delaware Court of Chancery (via Zoom) on Tuesday, a venue where such cases have previously been pretty rare. It's the second full-blown MAE trial in the court since the onset of the pandemic. Alison Frankel takes a look at the latest case, where in the first day of testimony a partner from private equity fund Snow Phipps accused counterparts at Kohlberg & Company of lying to him when Kohlberg said that its funders were no longer willing to back Kohlberg's $550 million acquisition of the Snow Phipps portfolio company DecoPac. Who could have predicted that MAE trials would be a symptom of the pandemic? Read her full column here.

Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.

Lawyer speak: The IoT Cybersecurity Improvement Act is federal law … now what?

Last month, President Trump signed the Internet of Things Cybersecurity Improvement Act into law. It aims to limit the risks to government and incentivizing manufacturers to address security gaps and requires the National Institute of Standards and Technology to develop standards and guidelines for use of IoT devices by federal agencies. Baker Donelson's Gabriel Kotch discusses the draft NIST guidelines and what the new law could mean for government contractors.

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