Good morning. U.S. Senator Chuck Schumer wants three Black lawyers to lead U.S. Attorney's Offices in his home state of New York, including for the first time in SDNY with Damian Williams. Litigation funder Burford Capital is due to report its 2020 results, the U.S. Supreme Court is taking up a case concerning police search powers, Derek Chauvin's trial now has a jury, and Michael Sherwin is taking heat over the interview the former top D.C. federal prosecutor gave to "60 Minutes" about the U.S. Capitol riot probe. All that and so much more!
Our guest contributor today is Chinekwu Osakwe. Were you forwarded this email? Subscribe here.
Schumer recommends first Black U.S. attorney in SDNY
Source: U.S. Attorney's Office for the Southern District of New York
For the first time in nearly 232 years, the top federal prosecutor in Manhattan could be a Black man, after U.S. Senate Majority Leader Chuck Schumer on Tuesday recommended to President Joe Biden that Damian Williams serve as U.S. attorney for the Southern District of New York.
Williams, 40, was among the three Black lawyers suggested by New York's senior Democratic senator to head up federal prosecutions in the state. If confirmed, Williams would take charge of a key office known for its high-profile cases and with a reputation of independence that has earned it the nickname the "Sovereign District of New York."
Presidents typically defer to the recommendations of a state's congressional delegation in selecting U.S. attorneys. Schumer also asked Biden to name Cleary Gottlieb's Breon Peace to serve in Brooklyn and Trini Ross, an official with the National Science Foundation's Office of Inspector General, to serve in Buffalo.
Williams today heads SDNY's securities fraud unit. Brooke Cucinella, a former prosecutor who worked with Williams before joining Simpson Thacher, told The Daily Docket that she expected he would bring an emphasis to both public corruption and white collar prosecutions, while other types of cases would continue.
"Having his energy and approach will be really important for this moment of justice reform, particularly sentencing reform, and I think it will be interesting to see what direction he takes the office in," she said. Learn more about Williams.
Industry buzz
- The 300-lawyer firm Day Pitney created an 14th East Coast foothold through the acquisition of Howland Evangelista Kohlenberg in Rhode Island. The boutique trust and estates firm will be bringing nine attorneys to Day Pitney’s individual clients department. (Reuters)
- Jones Day, after being targeted by law school students and anti-Trump organizations for its role during the 2020 election, is now the third-ranked firm in a U.S. law firm brand ranking, falling two positions from last year. Kirkland & Ellis took the top spot and Latham & Watkins came in second in the Thomson Reuters-owned Acritas' U.S. Law Firm Brand Index 2021 report. (Reuters)
- Silicon Valley law firm Fenwick & West is jumping into the Big Law bonus war, matching the $12,000 to $64,000 special bonuses that New York-based Davis Polk a day earlier said it would award its associates based on seniority in two separate payments. An internal Fenwick memo said the bonuses were to recognize the lawyers' contributions to the firm's "remarkable performance over many months in the midst of a pandemic." (Above the Law)
- A former regional IT director at the litigation-focused Quinn Emanuel sued the firm in Manhattan federal court, alleging he was the victim of years-long racial discrimination and that his mental health deteriorated amid constant "harassment, ridicule and abuse" by the firm's then-chief information officer. (Reuters)
- A psychiatrist filed a federal lawsuit claiming Yale University's medical school unlawfully refused to renew her contract over a tweet she posted questioning the mental state of prominent lawyer and law professor Alan Dershowitz, who defended former President Donald Trump at his first impeachment trial. (Reuters)
- McCarter & English has been awarded almost $1 million in unpaid fees, about half of what the 400-lawyer firm claims to be owed by Jarrow Formulas, which refused to pay the fee after losing a six-year-long trade secrets case. The company claimed there was no valid agreement between the company and the firm. U.S. District Judge Michael Shea in New Haven, Connecticut, said a jury will determine whether or not Jarrow must pay McCarter any more money. (Reuters)
Sarah Silbiger/Pool via REUTERS
"I found it troubling that sources within the Department of Justice were detailing the possibility of additional charges in a pending criminal case and an ongoing criminal investigation."
U.S. District Judge Amit Mehta, who during a hearing in D.C. on Tuesday criticized the DOJ for speaking to the media about the ongoing investigation into the Jan. 6 riot at the U.S. Capitol by Trump supporters. Mehta said he was "surprised" by remarks that former Acting U.S. Attorney Michael Sherwin made to the CBS program "60 Minutes," and troubled by an article in The New York Times that cited anonymous DOJ sources. A prosecutor, John Crabb Jr, said that Sherwin's interview was being referred for review to an internal watchdog, the DOJ's Office of Professional Responsibility. (Reuters)
Coming up today
- The U.S. Supreme Court will take up a case on the scope of police search powers arising from an incident in which officers seized a man's gun from his house without a warrant because of concerns he was suicidal. The man, Edward Caniglia, sued the city of Cranston, Rhode Island, and officers involved in the incident, saying they violated his Fourth Amendment rights through the warrantless seizure. But the 1st Circuit said a "community caretaking" exception to the warrant requirement extends to the home. Skadden's Shay Dvoretzky will on Caniglia's behalf urge the justices to reject that finding. He's going up against Marc DeSisto of Anthony DeSisto Law Associates in Providence and Assistant U.S. Solicitor General Morgan Ratner.
- Litigation funder Burford Capital is expected to announce its full-year 2020 financial results, the first it has reported since it debuted on the New York Stock Exchange in October. Burford, one of the largest outfits to provide third-party financing for litigation, previously reported preliminary half-year results in which the firm said it generated $486 million in cash and net receivables, up 35% from the first half of 2019. It also trades on London's AIM exchange.
- The U.S. House of Representatives Committee on Oversight and Reform will hold a hearing to examine the impacts of sex-based pay disparities and other forms of gender inequality. Witnesses include World Cup-winning soccer player Megan Rapinoe, who sued the U.S. Soccer Federation for paying male players more than women, and the heads of the Institute for Women's Policy Research and the National Domestic Workers Alliance. President Joe Biden will later host a event with Rapinoe and members of the U.S. Soccer Women's National Team to mark Equal Pay Day.
- Offshore driller Fieldwood Energy will ask U.S. Bankruptcy Judge Marvin Isgur in Houston to allow it to begin soliciting creditor votes for its proposed reorganization plan, which includes the sale of certain assets and a lender takeover of the remaining business. The company, with $1.8 billion in funded debt, filed for bankruptcy for the second time in two years in August with help of lawyers led by Weil Gotshal's Alfredo Perez.
- Lawyers for GlaxoSmithKline at Shook, Hardy & Bacon will appear before U.S. District Judge F. Dennis Saylor in Boston for a status conference in litigation by more than 400 women who say GSK failed to warn them about the risks of birth defects posed by taking its anti-nausea drug Zofran during pregnancy. On the agenda are arguments on GSK’s motion to toss 300-plus cases involving alleged heart defects due to what the company says is a lack of admissible evidence showing the drug caused that condition. The plaintiffs are repped by lawyers at Motley Rice, Pogust Millrood, Grant & Eisenhofer and Hausfeld.
- A former oil trader at mining company Glencore is expected to plead guilty to conspiring to manipulate fuel oil prices. The ex-trader, Emilio Jose Heredia Collado, will enter his plea before U.S. District Judge Charles Breyer in San Francisco. Ted Cassman of Arguedas, Cassman & Headley is defending him.
- The D.C. Circuit will hear a challenge by homeopathic drugmaker MediNatura to an FDA policy requiring homeopathic drugs, previously regulated separately from conventional drugs, to undergo review and banning imports of certain types of those products on the grounds that they are risky. Those include an injectable drug that MediNatura marketed as an opioid alternative. Morgan Lewis' Douglas Hastings will argue for the company and will face Courtney Dixon of the DOJ.
Video: COVID lawsuits favor insurers over businesses so far
University of Pennsylvania Carey Law School Professor Tom Baker tracks lawsuits filed against insurers by businesses seeking financial assistance because of COVID-19 shutdowns. He spoke with Alison Frankel about the results and some of the key legal arguments. Watch the video.
Data dive: A divided nation on damages caps
Reuters data journalist Rick Linsk on which states cap damages.
When the New Mexico Supreme Court last week upheld the state’s $600,000 cap on the non-medical, non-punitive damages in medical malpractice lawsuits, it was just the latest court to rule on the validity of long-running defense-focused lobbying efforts aimed at limiting what plaintiffs can recoup at trial.
A report last year by the Center for Justice & Democracy, a consumer organization based at New York Law School, found that six states have laws that cap total damages in a case; 23 states cap non-economic damages; and 22 states plus the District of Columbia have no caps, including nine states where courts have found caps to be unconstitutional. This map shows which states have caps and, if so, what types
Number of the day:
$188.7 million
Boston Scientific has agreed to pay $188.7 million to resolve an investigation by state attorneys general into allegations that it misled consumers about the safety and effectiveness of its surgical mesh devices. The deal, negotiated with the help of defense lawyers Joseph Rebein of Shook, Hardy & Bacon and Amy Fiterman of Faegre Drinker Biddle & Reath, follows settlements between other companies and state attorneys general and in multidistrict products liability litigation by women who said they were injured by the devices. (Reuters)
In the courts
- The last member of a full jury of 12, along with three alternates, was seated in the trial of Derek Chauvin, the former Minneapolis police officer facing murder charges in the arrest and death of George Floyd last year. They include six white women, three white men, three Black men, one Black woman and two multiracial women, according to court records. Hennepin County District Judge Peter Cahill said should all 15 show up on Monday when opening statements are expected, he will dismiss an alternate. (Reuters)
- U.S. Supreme Court justices during arguments on Tuesday expressed concern about public safety if tribal officers lacked the power to stop and detain non-Native Americans on reservation land. The case focused on drug-related charges brought against a man named Joshua James Cooley, who is not a Native American, after a Crow tribal police officer in Montana in 2016 found methamphetamine and firearms in his vehicle, which was parked on a roadside on reservation land. Cooley argued that tribal police lacked jurisdiction over him as a non-Native American. (Reuters)
- A Fresenius Kabi unit pleaded guilty in federal court in Nevada to concealing and destroying records before an FDA inspection and has agreed to pay $50 million to resolve a DOJ investigation. The company, represented by James Ellison of Hyman, Phelps & McNamara and Trevor Waite of Alverson Taylor Mortensen & Sanders, said all necessary remediation actions at the plant at issue were implemented several years ago. (Reuters)
- The publisher of conservative online magazine The Federalist through lawyers at the New Civil Liberties Alliance asked the 3rd Circuit to overturn an NLRB ruling that said its owner violated federal labor law by tweeting that he would send employees "back to the salt mine" if they unionized, saying it was satirical and a valid expression of free speech. (Reuters)
- North Carolina hospital operator Atrium Health is immune from a class action lawsuit accusing it of illegally discouraging patients from using lower-cost alternatives, thanks to a federal law shielding local government entities from antitrust damages, the 4th Circuit ruled. The ruling was a victory for James Cooney, who argued the case for Atrium and whose firm Womble Bond Dickinson represented the company with Boies Schiller Flexner. Eric Citron of Goldstein & Russell represented the patient who filed the case. (Reuters)
- The 2nd Circuit rejected bids by the state of New York and the Sierra Club to overturn orders by the Federal Energy Regulatory Commission holding that the state’s Department of Environmental Conservation waived its authority to deny National Fuel Gas Supply Corp a certification for a $500 million natural gas pipeline. Sidley Austin's Eamon Joyce argued the case for the company. (Reuters)
- U.S. District Judge Joseph DiClerico in Concord, New Hampshire, ruled that the U.S. government's sovereign immunity bars claims that the IRS breached a taxpayer's constitutional rights when it obtained records of his cryptocurrency transactions from the crypto exchange Coinbase. The ruling was a loss for James Harper, who with the help of the New Civil Liberties Alliance had sued the IRS. (Alison Frankel's On the Case)
Industry moves
- Daniel Rubinstein, formerly the chair of Winston & Strawn's litigation practice, has joined Sidley Austin as the global co-leader of the firm’s white collar, government litigation and investigations practice in Chicago. (Reuters)
- Freshfields Bruckhaus Deringer added former Kirkland & Ellis partner Joseph Halloum to the firm's Silicon Valley office. The office, which opened in July 2020, now has 16 lawyers and is the firm’s third U.S. office. (Reuters)
- Greenberg Traurig has beefed up its corporate, M&A, and private equity practices with the addition of Jaclyn Ruch, a former Ropes & Gray associate, who will be joining the firm’s New York office as a shareholder. (Greenberg)
- International mid-size firm Kobre & Kim has brought on Edward Bibko as global general counsel. Bibko was previously general counsel of EMEA and Asia at Jefferies International Limited and the European head of capital markets at Baker & McKenzie. (Kobre & Kim)
- Florida-based firm Akerman grew its IP practice by adding former McDonnell Boehnen Hulbert & Berghoff partners Jeffrey Armstrong and Benjamin Urban. Both Armstrong and Urban represent electrical, software and telecommunications innovation entities and will be joining the more than 700-lawyer firm in Chicago. (Akerman)
- Former Jones Day partner David Gay is the 10th attorney to join Greenberg Traurig's intellectual property and technology and life sciences and medical technology practices in the last four months. Gay joins the firm's Los Angeles office and will continue to advise biotechnology and pharmaceutical companies. (Greenberg)
- Tax and estate lawyer William Keeler Jr has joined Los Angeles-based law firm, Buchalter, in its Portland office. Keeler, a former principal at Foster Garvey, represents families and individuals across the west coast. (Buchalter)
Columnist spotlight: Using dead Delaware companies for IPO shortcut? VC Laster has questions
A "capital markets entrepreneur," in the description of Delaware Vice Chancellor Travis Laster, has just run smack into the judge's skepticism about reverse mergers and federal securities laws. Alison Frankel writes about the business that has provoked Laster's concerns, Synergy Management, which petitions for custody of abandoned corporations in order to "give private companies access to the ability to go public via (a) reverse merger without a costly IPO," according to its website. What could go wrong? A few things, Laster worries. Find out more about reverse mergers through dead companies.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: Delaware Supreme Court finds internal fraud is insurable
After a Delaware judge found in shareholder litigation that Dole Food Company's CEO fraudulently drove down the company’s market price, one of the insurance companies for Dole and its officers and directors, RSUI, fought to not have to pay for the subsequent settlement since it stemmed from fraud by internal parties. But earlier this month, the Delaware Supreme Court concluded that internal wrongdoing can be covered by insurance policies. Matthew Gold and Marc Rosen of Kleinberg, Kaplan, Wolff & Cohen broke down the court’s decision and the implications for companies looking for D&O insurance. Learn more.
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