Good morning! Lisa Monaco and Vanita Gupta go before a Senate committee today for confirmation hearings, the trial of former Minneapolis police officer Derek Chauvin over George Floyd's death was delayed at least a day, the lawyers who will lead the sexual harassment probe of New York Governor Andrew Cuomo have been tapped, the U.S. Supreme Court says it is cool with suing for nominal damages in a civil rights case, and the head of Fox Rothschild is speaking out about what its post-pandemic future might look like. Let's go!
Our guest contributor today is Nimitt Dixit. Were you forwarded this email? Subscribe here.
Biden's picks of Monaco, Gupta for key DOJ positions face Senate scrutiny
Conservatives largely sidestepped fighting President Joe Biden's pick of Merrick Garland to serve as attorney general. The choice of Vanita Gupta to be the DOJ's No. 3 official is another matter.
The U.S. Senate Judiciary Committee convenes today to consider Biden's nominations of Gupta (pictured) as associate attorney general and Lisa Monaco as deputy attorney general, the No. 2 position. Conservative groups have mobilized to torpedo Gupta's nomination, saying comments she has made about police reform show she is too far left, Sarah N. Lynch reports.
Gupta headed the DOJ's Civil Rights Division during the Obama administration and oversaw investigations into systemic abuses by police departments in Baltimore and Ferguson, Missouri. As head of the Leadership Conference on Civil and Human Rights, she became a prominent critic of former President Donald Trump.
The Judicial Crisis Network is fighting Gupta's confirmation through an $800,000 ad campaign called "Dangerous Appointee," incorrectly claiming Gupta told Reuters last June that she supports defunding police - a statement she did not make.
Counter-advertising has followed, and law enforcement organizations including the Fraternal Order of Police have urged the Senate to confirm Gupta. Monaco, an O'Melveny & Myers partner who served as former President Barack Obama's homeland security and counterterrorism adviser, faces less opposition. Find out more.
Industry buzz
- Joon Kim, a former acting U.S. attorney now at Cleary Gottlieb who as a federal prosecutor in Manhattan helped oversee several high-profile corruption probes, will help lead the investigation into sexual harassment allegations against New York Governor Andrew Cuomo, state Attorney General Letitia James said. Employment-discrimination lawyer Anne Clark of Vladeck, Raskin & Clark will also help lead the investigation. (Reuters)
- Need proof that the COVID-19 pandemic has reshaped law firms' real estate needs? Jenner & Block, which has been in the midst of a pandemic-induced legal fight over rent with its hometown landlord in Chicago, signed a new lease for 67,000-square feet of office space in midtown Manhattan. Its current Big Apple office is 12,000 square feet larger. "We are doing more with less," a firm spokeswoman said. (Reuters)
- President Joe Biden has decided to nominate Lina Khan, an associate professor at Columbia Law School who as an antitrust scholar has become a prominent critic of Big Tech's practices, to the Federal Trade Commission. (Politico Playbook)
- Salle Yoo, Uber's first general counsel, who left the ridehailing company amid a flood of scandals and legal challenges in 2017, has joined quantum computing company IonQ as its top lawyer. IonQ said Yoo will manage its legal and regulatory functions and help grow its global business, citing her experience at Uber expanding "operations from four to over seventy-five countries in under six years." (Reuters)
- Apollo Global Management's multi-billion dollar shopping spree is keeping law firms busy. Paul Weiss and Skadden are representing it on its $11 billion all-stock deal to buy insurance affiliate Athene, which is represented by Sidley Austin. (Reuters)
- For in-house lawyers, providing "fast and actionable" advice isn’t always easy when you're dealing with coworkers who don't have a legal background. WW International Inc’s privacy attorney David Sclar, who was formerly a senior associate at Cooley, says surviving as an in-house lawyer requires attorneys to put emailed advice into "bullet points," to build trust with other coworkers and to get to know the ins and outs of the company. (Reuters)
REUTERS/Jose Luis Gonzalez
Immigration judges hired under the Trump administration ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the Reagan administration, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years. Former President Donald Trump's administration filled two-thirds of the immigration courts' 520 judge positions, a legacy that will pose a challenge for President Joe Biden's efforts to undo many of his predecessor's hardline immigration policies. Of those judges, 42% had no immigration experience - double the proportion hired previously. (Reuters)
Coming up today
- Former Michigan Governor Rick Snyder, a Republican, will ask Genesee County District Court Judge William Crawford to dismiss an indictment charging him with two misdemeanor counts of willful neglect of duty for his role in the lead contamination of the city of Flint's water supply. His lawyer, Brian Lennon of Warner Norcross + Judd, has called the charges meritless.
- Chinese consumer electronics company Xiaomi Corp on Tuesday will ask U.S. District Judge Rudolph Contreras in D.C. to issue a preliminary injunction blocking the Trump administration's mid-January designation of it as a "Communist Chinese military company." John Hall and Beth Brinkmann of Covington & Burling are representing the company, which calls itself the third-largest smartphone manufacturer in the world. They said the designation would bar U.S. individuals from holding its securities after March 15. The DOJ under the Biden administration has continued to defend the designation.
- Directors and officers of Aegean Marine Petroleum Network and its auditors will urge U.S. District Judge Naomi Reice Buchwald in Manhattan to dismiss a proposed class action alleging they participated in a massive scheme that falsely boosted the international marine fuel logistics company’ financial outlook and defrauded investors. Aegean filed for bankruptcy in 2018. The defendants include Aegean founder Dimitris Melissanidis, represented by Boies Schiller’s Matthew Schwartz. Berman Tabacco’s Nicole Lavallee serves as lead counsel to the investors.
- The U.S. Treasury Department's Office of the Comptroller of the Currency will ask the 2nd Circuit in New York to reverse a judge’s ruling holding that it does not have the authority to grant special purpose non-bank charters to fintech companies. The New York Department of Financial Services won that ruling in 2019 after arguing the federal regulator had overstepped its legal mandate to regulate banks, which DFS Superintendent Linda Lacewell argued was limited to deposit-taking institutions.
- The 2nd Circuit will also consider whether to uphold the conviction and nearly 16-year prison sentence imposed on a former executive for a Chinese construction company accused of forcing Chinese laborers to work in the New York area under a form of debt bondage. Dan Zhong is a former Chinese diplomat and the ex-president of U.S. Rilin Corp, a unit of Chinese construction conglomerate China Rilin Construction Group, which is headed by Zhong’s billionaire uncle Wang Wenliang. Defense lawyer Alexandra Shapiro of Shapiro Arato Bach will face Assistant U.S. Attorney Alexander Solomon from Brooklyn.
- Lawyers for an MIT professor accused of failing to disclose his ties to the Chinese government when seeking federal grant money will ask U.S. Magistrate Judge Donald Cabell in Boston to sanction former U.S. Attorney Andrew Lelling for making "numerous false, highly inflammatory statements to the media" about their client and his loyalty to the United States. Attorneys for Gang Chen including Brian Kelly and Robert Fisher with Nixon Peabody argue that Lelling, who is joining Jones Day, should be publicly reprimanded and that a press release about the case should be removed from his former office's website.
At Fox Rothschild, a look to the post-pandemic future
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Mark Morris Fox Rothschild
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Count Mark Morris among the law firm leaders who a year into the COVID-19 pandemic find themselves wrestling with management questions they never expected. Fox Rothschild's managing partner was in the midst of writing an email to employees of the 963-lawyer, Philadelphia-founded firm about planning for a return to the office when The Daily Docket got him on the phone to ask him about the firm's post-pandemic future.
On how to encourage employees to return to the office: "I am going to ask primarily the partners to spend some baseline amount of time in the office on a regular basis, because I think it starts with them. I don't think you can mandate or or even strongly suggest that associates or staff or paralegals or anybody else has to come to the office on certain dates if the partners aren't committed."
On whether the pandemic has changed the firm's real estate needs: "We've signed two leases since the pandemic started and we took less space. We're about to sign two more and we're taking a lot less than we have now."
On whether to require vaccinations: "I think we're leaning towards not requiring it, but I think we're going to see how it goes. The forecast is that by the time we actually get to a set of guidelines or expectations for coming back to the office, the country should be vaccinated."
On holding partnership retreats: "We canceled ours last year, which is usually in May. We couldn't have it this May, that would be too early. So we decided to just cancel it again. But we're definitely going to do it in 2022. We even have the date now."
"We're not doing this to interfere, to slow this down, but it is a very important matter."
Michigan Assistant Attorney General Matthew Frank, explaining to Hennepin County District Court Judge Peter Cahill why prosecutors thought the trial of former Minneapolis police officer Derek Chauvin for the death of George Floyd should be delayed while the defense asks the Minnesota Supreme Court to review a ruling that could result in a third-degree murder charge being reinstated. Chauvin is charged with second-degree murder and manslaughter. Prosecutors fear picking a jury when the number of charges he faces is unresolved could create an appellate issue later, Frank said. Cahill suspended jury selection until at least Tuesday but declined to put the trial on hold otherwise, prompting prosecutors to appeal. (Reuters)
In the courts
- The U.S. Supreme Court ruled 8-1 that a student at Georgia Gwinnett College could sue officials at the public university for violating his rights by barring him from distributing religious literature on campus. The court concluded Chike Uzuegbunam's claims for nominal damages were not moot after the school later changed its policy. (AP)
- Remington Outdoor Co's must make some modifications to its proposed liquidation plan that will make it easier for families of Sandy Hook Elementary School shooting victims, among others, to pursue litigation against the gunmaker's estate, U.S. Bankruptcy Judge Clifton Jessup Jr in Decatur, Alabama said at a hearing. Remington counsel Stephen Warren of O'Melveny & Myers said he would have to consult lenders and other proponents of the plan to discuss the modifications. (Reuters)
- Lawyers for Twitter including WilmerHale's Mark Flanagan filed a lawsuit asking a federal judge in San Francisco to block Republican Texas Attorney General Ken Paxton from investigating the company and its content moderation policies after the social media service banned former President Donald Trump from its platform following the Jan. 6 riot at the U.S. Capitol. (Texas Tribune)
- The SEC issued a rare reversal in a disciplinary case against a former Ameriprise Financial Services broker, saying the self-regulatory organization FINRA had not shown he acted in bad faith in a customer dispute. FINRA had suspended David Tysk for one year and fined him $50,000 for improperly adding to his notes on a customer in the midst of a dispute over a $2 million investment. His lawyer, Brian Rubin of Eversheds Sutherland, called it the first full reversal of a FINRA disciplinary finding by the SEC in at least five years. (Reuters)
- The DOJ sued automobile device manufacturer EZ Lynk in Manhattan federal court, accusing it of selling "defeat devices" to enable thousands of owners of cars and trucks from the likes of Ford, GMC and Chrysler to disable their vehicles' emission controls at the push of a button. Greenberg Traurig's Bernadette Rappold is defending the company. (Reuters)
- Twelve Republican attorneys general led by Missouri Attorney General Eric Schmitt filed a lawsuit in federal court in St. Louis alleging that President Joe Biden exceeded his powers in an executive order that restored the so-called "social cost of greenhouse gases" from the Obama era that must be used when conducting cost-benefit analyses tied to regulatory actions like government permitting and investment. (Reuters)
- The 1st Circuit in Boston upheld Fidelity's victory in a proposed class action by retirement plan participants who alleged they paid more for mutual funds because the company charged the funds fees that were then passed on to plan participants. O'Melveny & Myers' Brad Garcia defended Fidelity on appeal against plaintiffs counsel Alec Berin of Shepherd, Finkelman, Miller & Shah. (Reuters)
- U.S. District Judge Ketanji Brown Jackson in D.C. expressed skepticism about two Altria Group units' bid for a preliminary injunction to block an FDA rule requiring graphic health warning labels on cigarette packages. Representing the companies, Stephen Andrews of Williams & Connolly argued that without an injunction the tobacco companies would be forced to prepare for compliance or risk being barred from the market altogether. (Reuters)
Industry moves
- Jonathan Knipe, who as general counsel for real estate developer Larry Silverstein’s Silverstein Properties helped advise on the rebuilding of the World Trade Center properties after the Sept. 11, 2001 attacks, has joined Cozen O'Connor's real estate practice. (Reuters)
- Willkie Farr & Gallagher's fledgling San Francisco office has brought on board it sixth partner with the addition of Jonathan Patchen, a former Baker Botts partner who served as its tech litigation practice co-chair. (Reuters)
- Womble has recruited Jed Nosal, a former Brown Rudnick partner in Boston who focuses on state regulatory oversight, investigations, compliance and litigation. (Reuters)
- Dinsmore and Shohl has hired another Trump-appointed federal prosecutor, as the outgoing U.S. attorney for the Southern District of West Virginia, Mike Stuart, joins the firm as a partner in its national corporate department. (Dinsmore)
- Finance attorney John Sutton Jr. has joined Haynes and Boone as a partner in its finance practice group and will work out of both its Fort Worth and Dallas offices. He was previously at K&L Gates. (Haynes and Boone)
- Data privacy attorney and litigator Simone McCormick has joined FisherBroyles as a partner in its Palo Alto and Seattle offices. She joins from Lewis Brisbois Bisgaard & Smith. (FisherBroyles)
- Trial attorney Elizabeth Ryan has joined Weil, Gotshal & Manges as a partner in its complex commercial litigation practice. Previously a partner at Lynn Pinker Hurst & Schwegmann, she will be based out of Weil’s Dallas office. (Weil)
- Transactional lawyer Sander Zagzebski has joined Clark Hill’s Los Angeles team as a member in its corporate law practice. Zagzebski has represented clients in the tech, new media and cannabis industries. (Clark Hill)
- Peter Petraro, previously vice president and senior counsel in Goldman Sachs' legal department, has joined Jones Day's financial markets practice as of counsel in its New York office. (Jones Day)
Columnist spotlight: Breyer balks at 'onerous' opt-out requirements in Intuit opinion
U.S. District Judge Charles Breyer made it known in December that he wasn't OK with Intuit’s proposed settlement that would give claimants just $28 each to resolve allegations that the company's Turbo Tax unit duped customers into paying for tax prep services. But with his recently issued opinion, we now know that it wasn’t just the meager payout that Breyer didn't like. As Alison Frankel writes, one of his big problems with the proposed deal was what the federal judge in San Francisco called the "onerous" and "burdensome" process that would have required opt-outs to hand-sign documents and mail hard copies to the settlement administrator. Why, the judge said, should it be harder to opt out of a class action than to file a tax return? The answer, as Frankel notes, may lie in the some 125,000 individual arbitrations in play against Intuit. Find out more about the potential ripples from Breyer's opinion
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: White collar enforcement expected to increase in Biden era
Senior leadership tasked with white collar enforcement under the Biden administration is starting to take shape as defense lawyers brace for an anticipated surge in activity. Katie Hausfeld, Eric Christofferson and Jamie Kurtz of DLA Piper in a recent article examine key areas where the administration may focus its efforts, including securities fraud, foreign corruption and money laundering, False Claims Act cases, cryptocurrency and antitrust. Biden’s pick to lead the SEC, Gary Gensler, could help oversee a renewed focus on large Wall Street firms and public company disclosures and an increase in insider trading enforcement, they said. The administration has also shown a strong interest in antitrust enforcement, suggesting an expanded role for DOJ. "Companies should consider refreshing their risk assessments and compliance programs to ensure they are accounting for changes to their business due to the pandemic and shifting enforcement priorities," they wrote. Read more.
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