Jan. 8, 2021

Good morning. Fallout from the violent mobbing of the U.S. Capitol is continuing to mount, and now the leaders of a major law firm, Crowell & Moring, are calling on their peers to push for President Donald Trump's removal. In other news, law schools are seeing a surge in applications particularly from prospective students of color, Boeing is paying billions to resolve criminal charges over the 737 Max's fatal problems, and liberal activists are pushing for Justice Stephen Breyer's retirement. Let's get through this Friday together people!

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Trump supporters who mobbed Capitol could face sedition charges, prosecutor says

The top federal prosecutor for the District of Columbia says charges including sedition are "on the table" for those who participated in the violent pro-Trump riot at the U.S. Capitol on Wednesday, as calls for President Donald Trump to resign or be removed from office mounted, Sarah N. Lynch reports.

"We're not going to keep anything out of our arsenal," Acting U.S. Attorney Michael Sherwin told reporters when asked about possible charges of sedition, rioting or insurrection. He said the DOJ has filed 55 cases about events this week, and more are coming.

The news came as shock continued to spread through the legal profession about the mobbing of the Capitol, prompting a call from one major law firm's leaders for their peers to urge for Trump's removal from office before President-elect Joe Biden is sworn in on Jan. 20.

As Democrats weighed impeaching Trump for a second time, D.C.-based Crowell & Moring's management board issued a statement going a step beyond other law firm leaders who have condemned the riots by calling on Vice President Mike Pence and the Cabinet to invoke the 25th Amendment to remove Trump from office, Caroline Spiezio reports. Its management board urged other lawyers to join its call, and at least one other firm, Phillips Nizer, said it would. Learn more.

Students of color drive spike in law school applications

REUTERS/Adam Hunger

Law schools are seeing a surge in applications, especially from prospective students of color, a trend experts attribute in part to the economic effects of the coronavirus pandemic and racial justice movement sparked by the death of George Floyd.

Rick Linsk reports that about 33% more prospective students have applied for the fall 2021 cycle compared to the same period the previous year. The trend among Black applicants is even stronger, with the Law School Admission Council reporting that applications are up 39%.

"I've never seen anything like this," said Andrew Cornblatt, dean of admissions at Georgetown Law School, where as of December applications were up about 60% from a year earlier.

He said 2020 saw a "perfect storm of events" that has impressed on students "that law is involved in everything, and not just most things, but everything, and that means lawyers are involved in everything."

The trend is up in other demographics as well. Hispanic and Latino applicants increased 33%, while Asian applicants were up 31% as of Dec. 22. The overall spike was consistent across every region of the country and was especially strong from applicants in New England and the Midwest. Find out more about who is applying.

Industry buzz

President-elect Joe Biden is considering U.S. District Judge Ketanji Brown Jackson, a Black woman, to replace D.C. Circuit Judge Merrick Garland should he be confirmed as attorney general, according to two people close to Biden's transition team. Jackson, a Harvard-trained lawyer and former public defender, has served on the D.C. district court since 2013. (Reuters)
Jerome Marcus, the lawyer representing the Trump campaign in a election-related lawsuit in Pennsylvania, asked to withdraw as counsel asserting that his services were used to perpetuate a crime. Porter Wright withdrew from the same case in November. (Reuters)
Goosehead Insurance said it no longer employs in-house lawyer Paul Davis, after he was identified as one of the hundreds of pro-Trump rioters who stormed the U.S. Capitol this week. Davis previously worked at Andrews Kurth, since merged to become Hunton Andrews Kurth. (Reuters)
A Perkins Coie lawyer went viral Wednesday amid the chaos in D.C. Senior counsel Peter Tracey was caught on camera yelling at rioters and commiserating with a neighbor over their shared anger about the unprecedented assault unfolding at the U.S. Capitol. Barred in D.C. found “Porch Guy,” as the internet dubbed Tracey, and snagged an interview about how he ended up momentarily internet famous. (Barred in D.C.)
A partner at Fox Rothschild who participated in Trump's call on Saturday in which he asked Georgia election officials to "find" enough votes to overturn his election loss in the state has resigned from the firm. The attorney, Alex Kaufman, and his father, Robert Kaufman, were in its Atlanta office and have departed "to pursue new professional opportunities," the firm said. (Philadelphia Inquirer)
And in "normal" news, Cadwalader announced its associate bonus scale, which ranges from $15,000 to $100,000 with more cash paid out to top billers. The firm, however, did not mention anything about "special" bonuses. (Above The Law)
Boies Schiller Flexner lost another partner. Josh Riley departed the firm, which saw nearly 60 partners leave last year, for Jenner & Block's D.C. office. Riley joins the government controversies and public policy litigation and the complex commercial litigation practices. Four other Boies partners, Dawn Smalls, Lee Wolosky, Douglass Mitchell and David Pressman, joined Jenner last year. (Reuters)
Contingency Capital, a legal finance firm founded a few months ago, hired Jeff Cohen, a partner and managing director at Southpaw Asset Management, as a partner and managing director. The third-party litigation and legal finance industry has seen growth in the number of players in the space over the past few years and existing ones bulking up with new talent. (Reuters)

Liberal activists call for Breyer's SCOTUS retirement after Democratic wins

REUTERS/Joshua Roberts

With Democrats having secured control of the U.S. Senate, Justice Stephen Breyer is facing calls from liberal activists to retire so President-elect Joe Biden quickly can appoint a successor to the Supreme Court's oldest member, Lawrence Hurley reports.

Stung by how President Donald Trump was able to replace liberal Justice Ruth Bader Ginsburg when she died at age 87 with a conservative, Amy Coney Barrett, activists on the left want to ensure that Breyer, 82, is succeeded by a fellow liberal. He has served on the top court since his 1994 nomination by Democratic President Bill Clinton.

Brian Fallon, executive director of the liberal advocacy group Demand Justice, noted Biden has pledged to put the first Black woman on the nation's top court. "Timing his retirement in the coming year would guarantee that opportunity, and it would be wise to do so because the window may prove a narrow one," he added.

Breyer told Slate last month he would "eventually" retire, adding "it's hard to know exactly when." Potential Biden nominees include Leondra Kruger, who serves on the California Supreme Court, and Ketanji Brown Jackson, a federal district court judge in Washington who served as a law clerk to Breyer. Learn more.

Coming up today

U.S. Supreme Court justices will hold a private conference to review petitions for the top court to take up new cases. Among the case up for conference is the DOJ's bid to reinstate Boston Marathon bomber Dzhokhar Tsarnaev's death sentence and a challenge to a Trump administration rule that deprives clinics that provide abortion referrals of Title X family planning funds.
A federal judge in Chicago will hold a hearing to discuss scheduling proceedings to potentially hold two former Girardi Keese attorneys in civil contempt for their respective roles in failing to distribute $2 million in settlement proceeds to the families of four victims of 2018’s plane crash in Indonesia involving a Boeing 737 Max. U.S. District Judge Thomas Durkin already held famed plaintiffs' attorney Tom Girardi and his law firm in civil contempt, entered a $2 million judgment against them, frozen their assets and referred the matter to federal prosecutors. The law firm Edelson PC, which first accused Girardi of wrongdoing, is urging the judge to hold ex-GK attorneys David Lira and Keith Griffin in contempt as well.
L'Oréal will urge the Federal Circuit to overturn an injunction that bars it from selling nine different hair-care products, following judgment for its competitor, Olaplex, in a lawsuit accusing it of willful patent infringement and misappropriation of trade secrets. L'Oréal has filed a separate appeal of the $50 million verdict and $14 million fee award in that case, and obtained a Patent Trial and Appeal Board ruling in December that invalidated the asserted patent. Stephen Kinnaird of Paul Hastings and Sanford Weisburst of Quinn Emanuel will argue for L’Oreal and Olaplex, respectively.
Car rental app company Turo Inc will urge the Massachusetts Supreme Judicial Court to overturn an injunction obtained by Massachusetts Port Authority from facilitating vehicle rentals at Logan International Airport in Boston. Turo argues it is immune from liability under the federal Communications Decency Act because Massport's claim is based on information provided by customers using its online platform to arrange peer-to-peer car rentals. A coalition of national tech groups including Technology Network, Electronic Frontier Foundation and NetChoice have filed an amicus brief backing Turo, which is represented by Cooley's Adam Gershenson. David Mackey of Anderson & Kreiger represents Massport.

Video: What it's like to work with Merrick Garland

Former Republican Oklahoma Governor Frank Keating worked with Biden’s pick for AG on the investigation into the Oklahoma City bombing in 1995. Keating talks about what it was like teaming up with Merrick Garland and how they later reconnected after Garland was nominated to the Supreme Court. Watch the full video here.

What we learned this week

Several high profile lawyers and law firms, including the leaders of Perkins Coie and Paul, Weiss, Rifkind, Wharton & Garrison, condemned the assault on the Capitol.
Congress certified the electoral college votes, bringing a chaotic election cycle to an end. Jenna Greene took a look back at some of the "Trump" judges overseeing the long-shot election litigation who refused to side with the man who appointed them.
Cleta Mitchell made a quick exit from Foley & Lardner after participating in President Trump's phone call pressuring Georgia's top election official to "find" enough votes to overturn his defeat in the state.
The 7th Circuit revived a pay bias case but didn’t stop there. The appeals court made clear that courts must examine the root cause of pay inequality and that after-the-fact rationales cannot justify actions that began with discrimination.
And Chapter 11s soared, but overall bankruptcies hit a historic low in 2020.

"Boeing's employees chose the path of profit over candor by concealing material information from the FAA concerning the operation of its 737 Max airplane and engaging in an effort to cover up their deception."

Acting Assistant Attorney General David Burns, in announcing that Boeing will pay over $2.5 billion to resolve the DOJ's investigation into two deadly 737 Max crashes that killed 346 people. The company was not forced to plead guilty to criminal charges, though, and instead entered into a deferred prosecution agreement filed in federal court in Dallas. Mark Filip of Kirkland & Ellis and Richard Cullen of McGuireWoods led the defense teams at their firms for the company. (Reuters)

In the courts

A Russian hacker was sentenced to 12 years in prison for his involvement in a massive computer hacking scheme that targeted JPMorgan Chase & Co and other financial services companies. U.S. District Judge Laura Taylor Swain in Manhattan called the sentence for Andrei Tyurin, 37, appropriate, given his involvement in a "sprawling financial criminal enterprise" that prosecutors say harvested the personal information of 138 million people for use in other schemes. (Reuters)
Subsidiaries of Johnson Controls International have agreed to pay $17.5 million to resolve a class action lawsuit in federal court in Charleston, South Carolina, by some 200 households in northern Wisconsin who claim a nearby site that tests firefighting foam contaminated their drinking water with a toxic chemical. Paul Napoli of Napoli Shkolnik, who represents the plaintiffs, called the agreement the first settlement of its kind in litigation related to film-forming foams. (Reuters)
Junior creditors of auto parts maker Garrett Motion represented by lawyers led by Brian Pfeiffer of White & Case are opposing equity holders' request that the company cover certain legal fees of two potential investors, saying the money would likely come out of the creditors’ own payouts. Sullivan & Cromwell’s Andrew Dietderich is Garrett’s lead counsel in the case before U.S. Bankruptcy Judge Michael Wiles in Manhattan. (Reuters)
Tobacco distribution company Greenlane Holdings won the dismissal of a shareholder lawsuit alleging it failed to disclose ahead of its initial public offering in 2019 San Francisco's then-pending ban on e-cigarettes at a time when much of its sales were coming from vaping company Juul Labs. "The Securities Act does not impose a duty on issuers to teach investors about investing or to warn them about everything that could go wrong in the world," U.S. District Judge Roy Altman in Fort Lauderdale wrote. Jerry Linscott and Douglas Greene of Baker & Hostetler represented the company. (Reuters)
One of railroad operator Union Pacific's main unions was blocked by a federal judge from going on strike over its concerns about its efforts to protect employees from contracting COVID-19. U.S. District Judge Brian Buescher said the Brotherhood of Maintenance of Way Employees Division must address its concerns through contract talks. Union Pacific's lawyers include Robert Hawkins of Cozen O'Connor, while Richard Edelman of Mooney, Green, Saindon, Murphy & Welch repped the union. (AP)
The DOJ has charged surgery center operator Surgical Care Affiliates, a subsidiary of UnitedHealth Group, with violating antitrust laws by agreeing not to solicit competitors' employees. The indictment filed in federal court in Dallas stemmed from what the DOJ called an ongoing investigation. (Reuters)

Industry moves

Marisa Maleck rejoined King & Spalding as a partner in its FDA and life sciences team in D.C. She was most recently senior counsel at e-cigarette company Juul Labs. (King & Spalding)
Regulatory attorney Kathryn Edgerton joined Davis Wright Tremaine as counsel in the firm’s healthcare team in Los Angeles. She was previously with Nelson Hardiman and rejoins her colleagues Stacie Neroni, Hope Levy-Biehl and Christine Johnson, who moved over in early 2020. (Davis Wright Tremaine)
Jesse Myers joined Willkie Farr & Gallagher’s Houston office in its corporate and financial Services department, focusing on private equity transactions and in particular ones involving energy projects. He was at Latham & Watkins. (Willkie Farr)
Idan Netser and Andrew Harper have joined Sidley Austin as transactional partners in its Palo Alto office. They were at Fenwick & West. (Sidley Austin)
White collar and government investigations defense attorney Steven Aaron has joined Rimon in its Kansas City, Missouri, office. He was previously at Dentons. (Rimon)

Columnist spotlight

Google's union could be a major force for workplace rights. The recent rollout of an employees’ union at Google and it’s parent company, Alphabet Inc, was met with much fanfare. But can the Alphabet Workers Union successfully galvanize a diverse cross-section of Google's roughly 100,000 workers to potentially become one of the most influential labor organizations in the country? It's a tall order. Hassan Kanu takes a look at the early days of the AWU and spoke with several Googlers who have raised concerns about whether the newly-announced union can take an authentically inclusive, anti-racist approach to workplace organizing. Read more here.

For Giuliani, a trial by history. Less than three years ago Rudy Giuliani was a partner at 2,200-lawer Greenberg Traurig, where he was global chair of the firm’s cybersecurity and crisis management practice. Jenna Greene looks at Giuliani’s ruinous decline cemented by the attack on the U.S. Capitol. "It's hard to imagine a more perfect example of how the rule of law has suffered under the Trump administration than the president’s personal lawyer goading on an angry mob," Greene writes. Read more here.

Walmart denies suit v. DOJ intrudes on prosecutors' discretion. Can a prospective Justice Department target use a preemptive declaratory judgment suit to shape the parameters of the government’s case? Or must defendants wait to be sued in an enforcement action to contest DOJ's interpretation of the law? Alison Frankel takes a look at one of the key questions in what she calls "a fierce and highly consequential fight" between Walmart and the U.S. government, which alleges Walmart violated the Controlled Substances Act by failing to police opioids prescriptions. The government is seeking maximum penalties. Read more here.

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

Lawyer speak: Will the EEOC's proposed rule on conciliation withstand a change in administration?

The future of the Equal Employment Opportunity Commission's proposed changes to its presuit conciliation process with employers is up in the air. The comment period is over and the EEOC will review the comments and may amend it prior to issuing a final rule. However, as Baker Donelson’s Elizabeth Liner notes, the impending change in administration could slow or halt the approval of a final rule if it’s viewed as too employer-friendly.

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