Good morning. Merrick Garland is going before a U.S. Senate panel for his AG confirmation hearing; major law firms are looking to reinvest in themselves after enjoying a pandemic-be-damned profits bonanza; the 2nd Circuit is weighing whether to strike down the SEC's settlement "gag order;" and embattled plaintiffs attorney Tom Girardi will get to keep his mansion. It's a new week. Let's get moving!
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Denied SCOTUS spot, Merrick Garland goes before Senate panel for new job: AG
More than four years after Merrick Garland was denied a vote to join the U.S. Supreme Court, the D.C. Circuit jurist finally gets to go before the U.S. Senate Judiciary Committee, just for a different gig: President Joe Biden's attorney general.
The Senate, of course, is now in Democratic control, and despite delays that Democrats on the committee blamed on partisan gridlock, Garland is expected to secure the panel's approval. He was nominated to lead the DOJ in the midst of its ongoing probes into the deadly Jan. 6 storming of the U.S. Capitol by former President Donald Trump's supporters. Garland called the incident "heinous" in his prepared testimony, Sarah N. Lynch reports.
Garland will also face the task of rebuilding a civil rights enforcement program advocates say the Trump administration left in tatters, promoting criminal justice reform following the death of George Floyd, and restoring morale among DOJ employees attacked by Trump as being part of a "deep state."
"He will have his hands full with many different priorities," said Jamie Gorelick, a former deputy attorney general now at WilmerHale who in 1994 tapped him to serve as her principal deputy. Learn more about the hearing.
Law firms reinvest in tech, talent after pandemic profit boom
Major law firms are in growing numbers reporting big profit gains in 2020 despite the COVID-19 pandemic and the economic downturn it fueled. And that's prompting some firms to reinvest that extra cash in technology and talent, Caroline Spiezio reports.
Hogan Lovells CEO Miguel Zaldivarin, whose 2,600-lawyer firm reported a 30% jump in per-partner profits, said a "significant amount" would be reinvested into major technology projects, like remote work support and process automation.
Industry experts said the firm isn't alone, as the pandemic sparks long-term attitude changes toward remote work. "There is somewhat of an expectation that some of this is here to stay, in terms of the remote (work)," said Joe Mendola, senior director of sales for Wells Fargo Private Bank Legal Specialty Group.
Several firms, including Davis Polk and Debevoise, have already shared their added wealth with associates via extra bonuses in late 2020 meant to reward hard work during the pandemic. See how others firms plan to spend their cash.
Industry buzz
- Embattled plaintiffs attorney Tom Girardi will be able to stay in his California mansion, at least for now, as long as his brother and temporary conservator, Robert Girardi, ensures that the property is kept "neat and tidy" and that the utilities are paid. (Reuters)
- Morrison & Foerster is the latest firm to make startup-founder equity issues a pro bono priority. The firm launched Black Venture Accelerator, a program that offers pro bono legal services to Black entrepreneurs and their businesses and will also provide networking opportunities, educational resources and mentorship. (Reuters)
- The 175-year-old Hartford-based firm Robinson + Cole elected Rhonda Tobin to be its first female managing director. Tobin has worked on a number of high-profile cases surrounding the the #MeToo movement, abuse in the Catholic church, and more recently, the COVID-19 pandemic. (Reuters)
- U.S. District Judge Esther Salas said in an interview with "60 Minutes" that Roy Den Hollander, the self-described "anti-feminist" lawyer who killed her son and wounded her husband at their New Jersey home last year, was also tracking U.S. Supreme Court Justice Sonia Sotomayor. (60 Minutes)
- Texas lawyers have been dealing with no power, frozen pipes and other fallout from the winter storm that battered the state. Sheppard Mullin's Bill Mateja said his neighbors came rushing over with towels to help him sop up water and turn off valves. He said any legal work has essentially shut down and it's been "eerie quiet." (Texas Lawyer)
- Last summer's hot streak of financial services and fintech company in-house hiring returned last week, with both Equitable and Coinbase announcing new legal and compliance leaders. (Reuters)
Coming up today
- Under a series of COVID-19 safety precautions, a federal jury in Waco, Texas, is set to convene for an in-person trial in a lawsuit by VLSI Technology accusing Intel Corp of infringing computer chip patents. The trial is before U.S. District Judge Alan Albright, who has been turning the Western District of Texas into a patent-law powerhouse. VLSI, a non-practicing entity owned by hedge fund Fortress Investment Group, is seeking billions of dollars in damages in the cases it has filed, Intel says. VLSI's attorneys, led by Irell & Manella's Morgan Chu, will face defense lawyers led by WilmerHale's William Lee.
- The U.S. Supreme Court will exercise its "original jurisdiction" and hear arguments in a lawsuit by the state of Florida accusing upstream Georgia of unreasonably depleting the flows of the Apalachicola River, whose fresh water the two states share. Florida, represented by Gregory Garre of Latham & Watkins, wants the court to instruct the parties to negotiate a decree limiting Georgia's consumption. Craig Primis of Kirkland & Ellis will argue for Georgia.
- Lawyers for Snap Inc investors will urge U.S. District Judge Stephen Wilson in Los Angeles to grant final approval of the federal piece of an $187.5 million settlement resolving federal and state lawsuits alleging the social media company misrepresented user engagement data ahead of its IPO in 2017. Lawyers for the plaintiffs led by Sharan Nirmul of Kessler Topaz are seeking an award of $41.1 million in attorneys fees and expenses. Ignacio Salceda of Wilson Sonsini reps Snap.
- Environmental and conservation groups Western Watersheds Project and the Cloud Foundation will ask the D.C. Circuit to revive a lawsuit challenging a 2018 Bureau of Land Management decision to round up wild horses from public lands in eastern Nevada. A federal judge concluded their challenge to a 2008 resource management plan that underpinned the decision was time-barred.
- The 2nd Circuit in New York will consider whether smoking-accessories vendor Woodstock Roots can block Woodstock Ventures, the owner of the 1969 music festival and its occasional reboots, from licensing the Woodstock brand to state-legal cannabis operations. A federal judge declined to issue an injunction against Woodstock Ventures, finding that Woodstock Roots' registration of "Woodstock" as a trademark for "smokers articles" expressly disclaimed cannabis. Andrew Sperl of Duane Morris and Edward Colbert of Hunton Andrews Kurth will argue for Roots and Venture, respectively.
Later this week
- Nearly every state in the country is slated to conduct bar exams on Tuesday and Wednesday, with several including New York and California again administering online tests due to the COVID-19 pandemic.
- Poultry company Pilgrim's Pride is slated on Tuesday to plead guilty and be sentenced in federal court in Denver after striking a deal to pay $110.5 million to resolve DOJ charges that it engaged in a scheme to fix prices for broiler chicken products. Its lawyers include Marc Kasowitz, Kevin Arquit and Daniel Fetterman of Kasowitz Benson Torres.
- The full Federal Circuit on Tuesday will hear arguments in a potentially far-reaching dispute between Teva Pharmaceutical Industries Ltd and GlaxoSmithKline over so-called "skinny labels" for generic drugs, which omit uses patented by a brand-name drugmaker to avoid infringement. A 2-1 panel in October revived a $235 million verdict against Teva after concluding its use of a skinny label for a generic version of GSK's heart drug Coreg did not shield it from a patent infringement claim. William Jay of Goodwin Procter will argue for Teva and will face Juanita Brooks of Fish & Richardson for GSK. Learn more about the case.
- The former CEO and the chief operating officer of biotech company MiMedx Group go before U.S. District Judge Jed Rakoff in Manhattan for sentencing on Tuesday and Wednesday, respectively, after being convicted of scheming to inflate the company's revenue. Prosecutors say former CEO Parker Petit and ex-COO William Taylor deserve six and five years in prison, respectively. The defense lawyers - Eric Bruce of Freshfields and Matthew Menchel of Kobre & Kim for Petit and William Weinreb of Quinn Emanuel for Taylor - say no prison is warranted.
- The U.S. Supreme Court on Wednesday will hear arguments in a case concerning whether cops can enter a home without a warrant when pursuing someone suspected of committing a misdemeanor offense. The case concerns retired California real estate agent Arthur Lange, whose garage was entered by a police officer without a warrant following a vehicle pursuit instigated by the officer hearing loud music and erratic horn honking from his car. He is appealing a DUI conviction with the help of Jeffrey Fisher, a Stanford University professor and special counsel at O'Melveny & Myers.
- Lawyers for Google, the DOJ and various state attorneys general on Thursday will appear before U.S. District Judge Amit Mehta in D.C. for a status conference in antitrust lawsuits accusing the $1 trillion company of abusing its market power to maintain a monopoly in the search and search advertising markets. Google is being defended by lawyers including John Schmidtlein of Williams & Connolly, Susan Creighton of Wilson Sonsini and Mark Popofsky of Ropes & Gray.
Hogan Lovells' Katie Ali paved path to partner with pro bono
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Katie Ali Hogan Lovells
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When Katie Ali made partner at Hogan Lovells this past January, it was in the middle of a pandemic with a full litigation practice, much pro bono work, caring for her two-year-old daughter - all the while pregnant with her second child. She's due any day. "It’s definitely been a challenging year," Ali said.
Ali, based in D.C., was drawn to litigation specifically because of its versatility. It's allowed her to dive deeply into many topics, especially in class actions, which have become a major focus of her practice. The ability to apply her litigation skills to a constantly evolving set of topics also drives another important part of her practice: pro bono.
Ali was Hogan's senior associate-in-charge of U.S. pro bono from 2015 to 2017, when she both managed the practice and worked full-time on civil rights cases, including several solitary confinement and capital punishment cases. "Pro bono has always been and always will be a huge part of my practice," she said.
She believes that the pro bono leadership role, coordinating with dozens of clients and with lawyers across the firm, set her up for the path to partner. "It's hard to imagine any experience that could have prepared me better to advance to partner," she said.
"Mr. Romeril could have chosen not to settle if he felt that strongly about it."
U.S. Circuit Judge Denny Chin, who was among the members of a three-judge 2nd Circuit panel in New York that on Friday questioned a lawyer for former Xerox CFO Barry Romeril about why what he contends is a "gag order" in an SEC settlement he agreed to violates his constitutional speech rights. The 2003 agreement contained a common clause that threatened to reopen the case against him should he publicly deny the allegations. Romeril's lawyer, Margaret Little of the New Civil Liberties Alliance, called the clause "profoundly dangerous." (Reuters)
In the courts
- South Carolina's new "fetal heartbeat" ban on abortions was blocked by U.S. District Judge Mary Geiger Lewis a day after Republican Governor Henry McMaster signed it into law. The 6th Circuit on a 2-1 vote meanwhile refused to revive a Tennessee law requiring a 48-hour waiting period for abortions while the state appeals an order striking it down as unconstitutional. (The State, Reuters)
- Italian fashion company Valentino SpA is being sued for $207.1 million by the landlord of its former American flagship on Manhattan's Fifth Avenue, which said it had no right to break its lease and leave the store in disrepair. Lawyers for the landlord including Robert Cyruli of Cyruli Shanks & Zizmor filed the lawsuit in a state court in Manhattan after a judge last month threw out Valentino's own case seeking to void its 16-year lease citing the coronavirus pandemic. Newman Ferrara's Jarred Kassenoff represents Valentino. (Reuters)
- The 6th Circuit upheld the dismissal of a proposed class action claiming GM knowingly sold trucks with dashboards that posed a danger of creating shrapnel in a crash because they were prone to crack. The shrapnel scenario has never occurred, U.S. Circuit Judge John Nalbandian wrote. "Much like Sir Conan Doyle's case of the dog that did not bark, this dispute centers on what we can infer from shrapnel that did not spray," he said. Mark Dearman of Robbins Geller and James McGrath of Seyfarth Shaw argued for the plaintiffs and GM, respectively. (Reuters)
- The U.S. Department of Labor tossed out an opinion letter issued during the Trump administration that had handed a big victory to "gig economy" firms by concluding that workers for an unidentified on-demand service were not the company's employees under the federal Fair Labor Standards Act. (Reuters)
- In one of the first lawsuits to be filed over last week's winter power outages in Texas, a Houston-area couple sued electric grid operator Electric Reliability Council of Texas and electric utility CenterPoint Energy in state court, saying they acted with gross negligence by cutting their electricity with no warning. The lawsuit seeks more than $10 million. (Reuters)
- The D.C. Circuit ruled that the National Labor Relations Board had "miserably failed" to explain why it declined to retroactively apply a Trump-era ruling, which allowed companies to cease bargaining with unions that are rejected by a majority of their members, to a case involving furniture manufacturer Leggett & Platt, repped by A. John Harper of Littler Mendelson. (Reuters)
4th Circuit OKs first-of-its-kind court-ordered divestiture in private antitrust case. Before last week, no appellate court in the entire history of U.S. antitrust litigation had blessed a trial court order demanding that a defendant sued by a private plaintiff divest property to rectify a Clayton Act violation. Alison Frankel takes a look at the first-of-its-kind ruling where the 4th Circuit ruled in Steves and Sons v. JELD-WEN that U.S. District Judge Robert Payne did not abuse his discretion in ordering the defendant to divest a factory it acquired in a 2012 merger, rejecting arguments by JELD-WEN’s appellate lawyers at Kirkland & Ellis that Steves and Sons waited too long to sue and that the balance of interests. Read her full column here.
Court allows public access to NYPD discipline records. What's next? Last week, a unanimous panel of federal appeals court judges rejected a group of police unions’ attempt to block New York City from releasing law enforcement disciplinary records. The law had been on the books for nearly half-a-century. Lawmakers changed the policy in response to nationwide protests over excessively violent policing. The move to increase transparency is a crucial step toward addressing those problems. Hassan Kanu spoke with Molly Biklen, deputy legal director of the New York Civil Liberties Union, about what the decision means and what’s next. Read his full column here.
This trial consultancy brought the Capitol mob into your living room. In a typical trial, the lawyers are the stars of the show, holding center stage with soaring rhetoric or withering cross examinations. And somewhere in the shadows are the trial consultants and graphics experts that help make those performances possible. Enter: DOAR, which chief impeachment counsel Barry Berke said was one of his first calls upon signing on to former President Donald Trump's second impeachment case. Jenna Greene caught up with DOAR CEO Paul Neale about working pro bono on the trial helping the House managers present a powerful, but unsuccessful, case against the president for inciting the Jan. 6 Capitol insurrection. Read her full column here.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: Clarity for an uncommon unfair competition common law claim
Although many California litigators have encountered the unfair competition cause of action in Section 17200 of the Business and Professions Code, its common law cousin remains more elusive, particularly as a stand-alone claim. Skadden's Jason Russell, Hillary Hamilton and Adam Lloyd discuss how a California common law unfair competition claim is narrower, more akin to an intellectual property infringement claim, and propose a three-part test to address them.
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