Good morning. DOJ antitrust enforcers are asking about Google's planned ban on third-party cookies and its impact on rival ad companies as the tech giant's legal woes mount. New York lawmakers are tapping Davis Polk for the impeachment inquiry into Governor Andrew Cuomo, a judge is bemoaning the "staggering" fees being charged in the Boy Scouts of America's bankruptcy, and the D.C. Circuit is saying no more to the Garamond font. We're partial to Georgia as a font, but hey, we're not judges!
Our guest contributor today is Sebastien Malo. Were you forwarded this email? Subscribe here.
Google's cookie ban draws DOJ antitrust enforcers' interest, sources say
Google's antitrust headaches are growing. DOJ investigators have begun asking advertising industry executives about Google's plan to ban third-party "cookies" and whether the move to limit the popular web tracking tool will hobble the tech giant's smaller rivals, Paresh Dave and Diane Bartz report.
Alphabet Inc's Google has said the plan to restrict cookies in its Chrome browser would increase user privacy. But DOJ investigators have been asking whether Google is using Chrome to reduce competition by preventing rival ad companies from tracking users while leaving loopholes for itself to do so, sources said.
That raises the potential for the DOJ to pursue claims beyond those in the antitrust lawsuit it filed in October accusing Google of unlawfully maintaining monopolies in the search and search advertising markets. A source said the feds could either file a new case or join one by a multistate coalition led by Texas Attorney General Ken Paxton alleging Google violated antitrust law to maintain online advertising dominance.
Texas, represented by W. Mark Lanier of The Lanier Law Firm, on Tuesday amended its complaint to, among other things, allege the forthcoming Chome changes are anti-competitive. The revised complaint came as Google's lawyers including R. Paul Yetter at Yetter Coleman prepared to push U.S. District Judge Sean Jordan in Sherman, Texas, today to send that lawsuit to California. Learn more.
Industry buzz
- New York lawmakers have hired Davis Polk to lead an impeachment investigation into claims that Governor Andrew Cuomo sexually harassed multiple women, allegations that Cuomo has denied. The attorneys include partners Angela Burgess, Greg Andres and Martine Beamon. (Reuters)
- The story of Big Law's financial performance in 2020 has increasingly become one of exceeding expectations and booming profits. But what about the firms that accepted funds from the Paycheck Protection Program, which was intended to help small businesses weather the pandemic? In the case of the 250-lawyer Smith Gambrell & Russell, the Atlanta-based firm after accepting a $5.47 million loan reported $139 million in revenue, up 4.2% from 2019, and profits per partner of $1.01 million, a 12% jump. (Fulton County Daily Report)
- Jenner & Block is looking to capitalize on its lack of strong Wall Street ties as well as the financial upheavals sparked by the pandemic by taking on more clients looking to sue major banks. The Chicago-based firm has expanded its financial services litigation practice with new leadership, including Neil Barofsky, who served as special inspector general of the $700 billion Troubled Asset Relief Program created after the 2008 financial crisis. (Reuters)
- Pennsylvania attorney disciplinary officials have dropped their appeal of an injunction that bars them from implementing an anti-discrimination rule governing lawyers' conduct in the state. U.S. District Judge Chad Kenney in Philadelphia last year ruled in favor of Zachary Greenberg, a lawyer with the nonprofit Foundation for Individual Rights in Education, in finding the rule violated the First Amendment. (Reuters)
- Gordon Smith, dean of Brigham Young University's J. Reuben Clark Law School, in an interview discussed why his school often ranks at or near the top of best-value law schools and how student loans can influence what jobs students take or whether they join large law firms. "The way we traditionally measure the success of a law school by what percentage of its students have jobs is not a great measure of the success of your placement," he said. "The real success to me is if a student gets the job they want." (Reuters)
Number of the day:
$100 million
REUTERS/Aaron P. Bernstein
The Boy Scouts of America's bankruptcy is becoming a costly affair, a fact that U.S. Bankruptcy Judge Laurie Selber Silverstein in Wilmington, Delaware, decried during a hearing Wednesday after a lawyer for the youth organization at White & Case reported that BSA racked up nearly $100 million in professional fees since filing for Chapter 11 in February 2020. "I think that is a staggering number," Silverstein said. She stressed the need to resolve roadblocks to the BSA's emergence from bankruptcy and compensate sex abuse survivors as its funds dwindle. The fees, though, keep adding up: Jessica Lauria of White & Case said by August, fees will likely reach $150 million. (Reuters)
Coming up today
- Drug distributors McKesson, AmerisourceBergen and Cardinal Health will urge U.S. District Judge David Faber in Huntington, West Virginia, to conclude the city and the county it resides in cannot establish that their alleged failure to prevent the diversion of addictive painkillers was the proximate cause of the opioid epidemic and resulted in the creation of a public nuisance. The case is one of more than 3,400 nationally and is set for trial on May 3, following several delays due to the COVID-19 pandemic. The distributors are in negotiations to pay a combined $21 billion to resolve various opioid cases, but the West Virginia plaintiffs, represented by Paul Farrell of Farrell Law and others, have said they are pursuing a separate deal.
- Attorneys for Mark Zuckerberg and other Facebook officers will ask U.S. Magistrate Judge Laurel Beeler in San Francisco to dismiss a lawsuit filed by shareholders on the company’s behalf alleging the social media giant’s approach to diversity under the leadership of an all white C-suite "has been characterized by tokenism" and that it failed to curtail anti-Black hate speech on its site. Andrew Clubok and Elizabeth Deeley of Latham & Watkins are defending the executives against claims being pursued by the plaintiffs' attorney, Francis Bottini of Bottini & Bottini.
- That's not the only case involving Facebook in court. U.S. District Judge Lucy Koh in San Jose will hear competing bids to appoint lead plaintiffs and counsel to litigate a proposed class action. The plaintiffs allege the company violated antitrust laws to maintain a social network monopoly by exploiting the data it extracted from users to target smaller rivals for destruction or acquisition. Quinn Emanuel and Keller Lenkner are jostling to co-lead the case, which they initiated, and face competition from Hagens Berman.
- The DOJ will ask U.S. Magistrate Judge Michael Wilner in Los Angeles to force Elon Musk's rocket company SpaceX to comply with a subpoena as part of an investigation into whether it discriminates against non-U.S. citizens in its hiring. SpaceX's attorneys led by Akin Gump's Jessica Ro object to the DOJ's "overreaching" requests for documents.
- The Manitoba Court of Appeal will hear Canadian fashion designer Peter Nygard's appeal of a judge's February decision to keep him in jail pending a U.S. extradition request over charges of sex trafficking and racketeering brought by federal prosecutors in Manhattan.
- The 9th Circuit will consider whether a California law requiring that employees be given meal and rest breaks applies to oil and gas rig workers on the Outer Continental Shelf off the state's coast. Petrochem Insulation, represented by Kent Sprinkle of CDF Labor Law, argues that because the federal Fair Labor Standards Act addresses breaks by saying that they are not compensable if given, it preempts any state-law requirements. But U.S. Magistrate Judge Thomas Hixson in San Francisco in a proposed class action being pursued by lawyers including Michael Strauss of Strauss & Strauss said California’s law was not preempted because the FLSA does not mandate meal and rest breaks.
Video: Pandemic helps fuel a winning streak for online sports gambling
Reporter's notebook: Swiss Verein model key for employment giant Littler's growth
Reuters business of law reporter Chinekwu Osakwe on how one of the largest U.S. employment law firms is becoming one of the biggest globally.
 For Littler Mendelson, the name of the game over the past few years has been rapid growth.
When Littler’s new managing director, Erin Webber, joined the firm in 2001, there were 200 lawyers. Now, Littler, the specialized employment firm, boasts 1,600 lawyers in 25 countries and doesn’t seem to be slowing down anytime soon.
Helping fuel its expansion has been Littler's uses of strategic partnerships and the Swiss Verein model, a structure where constituent firms operate largely independently with different profit pools. Many of the world's largest law firms including DLA Piper, Baker & McKenzie and Dentons use this structure in order to set footholds in countries around the world.
Under this model, the firms that Littler acquires are financially independent. They have the right to hire and fire whomever they want and they use their local firm names when operating in their home jurisdiction.
Littler combined with three European firms in 2020, most recently merging with the 39-lawyer Spanish firm Abdon Pedrajas in November. In December, it gained a foothold in Brazil, which bars lawyers employed by foreign firms from practicing there, through a correspondent counsel partnership with 18-lawyer Chiode Minicucci.
According to Littler, its model is a way to ensure international expertise. "We are local firms," Stephan Swinkels, a Littler shareholder who helps lead the development and integration of the firm’s global practice, told me. "We're going to court every day, we're with our feet in the mud, wherever we need to be for our clients."
"It kind of sent a message that the city of Minneapolis felt that something was wrong, and they wanted to make it right, to the tune of that dollar amount."
One of two jurors who had been seated in the trial of Derek Chauvin, the former Minneapolis police officer facing murder charges over his arrest of George Floyd, who were dismissed on Wednesday after they said news of a $27 million settlement by the city of Minneapolis with Floyd's family meant they could no longer be impartial. The juror, a white man in his 30s, told Hennepin County District Judge Peter Cahill that the settlement's size shocked him and "kind of swayed me a little bit." (Reuters)
In the courts
- Say goodbye to the Garamond font in D.C. Circuit briefs. The court issued a notice that discourages the use of the Garamond typeface in briefs because it appears smaller than others. "Certain typefaces, such as Century and Times New Roman, are more legible than others, particularly Garamond," the notice says. (Washingtonian)
- A coalition of 21 Republican state attorneys general filed a lawsuit in federal court in Galveston, Texas, challenging President Joe Biden's decision to revoke a permit needed to build the Keystone XL oil pipeline, saying he exceeded his authority in doing so. (The Hill, Reuters)
- Billionaire Macau real estate developer Ng Lap Seng has won early release from prison despite prosecutors’ argument that the basis for releasing the 72-year-old from a prison with hundreds of COVID-19 cases was negated after he received Moderna's vaccine. "There’s a certain level of humanity that I’ve decided to exercise," U.S. District Judge Vernon Broderick in Manhattan said during a hearing. Ben Brafman, Ng's lawyer, welcomed the judge's decision to focus on the "humanitarian issue" Ng's case presented. (Reuters)
- Ride hailing app giant Uber Technologies cannot force Pittsburgh motorized wheelchair users suing the company for disability discrimination to arbitrate their claims, a unanimous 3rd Circuit panel ruled. Uber, represented by Bryan Killian of Morgan Lewis & Bockius, argued that the plaintiffs could not have standing unless they opt into Uber's terms of service. Stuart Seaborn of Disability Rights Advocates represents the four individuals who sued. (Reuters)
- In a nearly 12-year-long dispute over a federal trademark for "Pretzel Crisps," the 4th Circuit found that snack maker Snyder's-Lance Inc. is entitled to a new court review of the rejection of its mark by the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board. Paul Clement of Kirkland & Ellis argued the case for Snyder's-Lance against William Barber of Pirkey Barber, a lawyer for Pepsico’s Frito-Lay unit. (Reuters)
- The onset of the COVID-19 pandemic may have disrupted much of America, but when it comes to securities class action settlements, 2020 remained a solid year. Cornerstone Research in a report counted 77 approved settlements, compared to a nine-year average of 72. While April 2020 saw a dip in announced settlements, spikes in May and July picked up the slack, the report said. (Reuters)
- The 2nd Circuit in New York revived a lawsuit accusing 18 banks and financial services companies including Bank of America, Barclays, Credit Suisse and HSBC of conspiring to rig benchmark Singapore interest rates, even though the original two plaintiff funds had already dissolved when the case began. The court said Fund Liquidation Holdings, represented by Eric Citron of Goldstein & Russell, could step into the funds' shoes as their alleged assignee. Cahill Gordon’s Joel Kurtzberg reps Credit Suisse and argued for the banks. (Reuters)
- New Mexico appears poised to bar officials in state court cases from relying on qualified immunity, a legal doctrine often invoked to shield police officers from civil liability, as a defense. The New Mexico Senate voted 26-15 to pass a bill that would allow residents to sue state and local governments for denying their state constitutional rights. It goes now to the New Mexico House of Representatives for concurrence after the Senate amended a bill it passed in February. (Westlaw Today Civil Rights Briefing)
Industry moves
- Securities class action litigator Serena Hallowell has joined Motley Rice in New York as a leader of its securities fraud litigation team. Hallowell, whose past cases include settlements with Barrick Gold, Computer Sciences Corp and Endo International, was previously at Labaton Sucharow. (Motley Rice)
- Intellectual property litigator Paul Tripodi has joined Akin Gump as a partner from Wilson Sonsini. Akin Gump said he will continue to maintain ties to his existing practice in Los Angeles, while practicing primarily in the firm’s Irvine office. (Akin Gump)
- Polsinelli is growing its labor and employment ranks with a team from Littler Mendelson focused on the home-based care industry. The group includes Angelo Spinola, who co-chaired Littler's home health and home care industry group. He is joining Polsinelli's Atlanta office along with Anne Mellen and William Vail. (Reuters)
- Cecilia Miller, whose practice focuses on representing policyholders in insurance recovery litigation, has joined Buchalter as a shareholder in San Diego. She was previously a partner at Procopio, Cory, Hargreaves & Savitch. (Buchalter)
- A four-lawyer data breach team led by partners Gina Greenwood and Brad Moody has joined Nelson Mullins Riley & Scarborough from Baker Donelson. Greenwood and Moody, who will co-head Nelson Mullins' new data breach response team and are based in Atlanta. (Fulton County Daily Report)
 Orrick unplugged: Why the firm is mandating all employees take 40 hours of tech-free leave. Orrick, Herrington & Sutcliffe gave Jenna Greene an exclusive look at a new firm policy that calls for every employee globally to take one unplugged week off this year. That means no peeking at email or checking voicemail…just off. Shocking, right? But wait, there's more. All timekeepers will also get 40 hours of billable credit for doing literally nothing. The firm's chief talent officer explains the rationale behind the plan, which is believed to be the first of its kind in Big Law. Read more here to find out how it will be implemented so no clients are left hanging while their go-to lawyer is blissed out at the beach.
 As MDL cases surpass one million, defense group's push for early vetting heats up. The defense group Lawyers for Civil Justice says that by its calculations, the cumulative number of cases in consolidated multidistrict litigations, dating back to the first MDL in 1968, has now topped one million. Alison Frankel writes that the group is capitalizing on that milestone - and on what it characterizes as exponential growth in MDLs - by intensifying its push for changes in the Federal Rules of Civil Procedure to tighten early vetting of MDL plaintiffs and to allow interlocutory appeals of rulings that could dispose of masses of claims. Frankel also notes, however, that the rule changes advocated by LCJ are not coming any time soon, if ever. Learn more about the call for early MDL vetting.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: A checklist for asset manager M&A considerations
Choosing to sell one's registered investment adviser is a big next step that can infuse the business with new life in the form of fresh capital and talent. But it can also seem a daunting merger and acquisition process. David Tegeler, Steven Peck, Rob Day and Jeremy Naylor of Proskauer Rose in a recent article offer a comprehensive checklist that asset managers can go through to ease the transition. Issues that can arise range from potential negative perceptions from limited partners during the “gap period” between signing and closing, they write, to difficulties at obtaining contractual consents for the transfer of the management relationship. Read more.
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