Good morning. College basketball lovers will be checking out C-SPAN today to hear the U.S. Supreme Court's big NCAA student-athlete compensation case, a class action against TransUnion could get narrowed by the top court's justices, and California state bar officials have filed disciplinary charges against embattled plaintiffs' attorney Tom Girardi. The big question of the day: Do the justices do "March Madness" brackets and are any still in the game?
Our guest contributor today is Chinekwu Osakwe. Were you forwarded this email? Subscribe here.
SCOTUS takes on NCAA student-athlete compensation fight
Kirby Lee-USA TODAY Sports
The NCAA is trading in the basketball courts of "March Madness” for the high court today, as the U.S. Supreme Court justices take up its bid to preserve limits on education-related compensation for student-athletes that a federal appeals court deemed anticompetitive.
While the case doesn't involve direct payments to players, it comes amid the broader debate over compensation in college sports, Lawrence Hurley reports. Here's what you need to know:
What's the case about? Division I football and basketball players in 2014 sued the NCAA, alleging the intercollegiate sports governing body's restrictions on compensation violate federal antitrust law. U.S. District Judge Claudia Wilken in San Francisco in 2019 concluded that while the NCAA could limit non-education-related compensation, it could not limit education-related benefits such as computers, science equipment and musical instruments. The 9th Circuit affirmed.
What is the NCAA's argument? Its lawyers, including WilmerHale's Seth Waxman, argue the 9th Circuit misapplied antitrust law to endorse "judicial micromanagement" of college sports. The NCAA, with the backing of major college sports conferences, contends rules that are reasonably related to amateurism in college sports are procompetitive.
What about the athletes? Linda Coberly of Winston & Strawn and other lawyers for the players counter that the NCAA wants to avoid close judicial scrutiny of its rules "regardless of the economic realities." Those realities? A multibillion-dollar enterprise that is a "far cry" from what it looked like decades ago. The players say the NCAA effectively wants an exemption from the Sherman Act, the federal antitrust law. Learn more about the case.
Industry buzz
- The California State Bar filed disciplinary charges against the once-prominent plaintiffs' attorney Tom Girardi, accusing the founder of Girardi Keese of misappropriating client funds in several cases, including $2 million owed to the families of victims of the 2018 crash of Lion Air Flight 610 in Indonesia. He was already placed on inactive status after his brother was appointed Girardi's conservator and a psychiatrist said he had Alzheimer's disease. (The Recorder, Los Angeles Times)
- Eugene Scalia, who served as the U.S. secretary of labor during the Trump administration, has rejoined Gibson Dunn as a partner in D.C. and as the co-chair of its administrative law and regulatory practice group. Scalia, the son of the late U.S. Supreme Court Justice Antonin Scalia, will also be a senior member of the firm's labor and employment and financial institutions practice groups. (Reuters)
- After multiple big law firms joined the bonus rat race, Kirkland & Ellis, the world's wealthiest law firm, has decided to match the bonuses that firms like Cravath, Davis Polk and Willkie Farr have given associates. Other firms also awarding bonuses of up to $64,000 now include Sidley Austin and Akin Gump. (Above the Law)
- Pierce Bainbridge, the Los Angeles-based firm managed by John Pierce whose past clients have included Rudy Giuliani and Kyle Rittenhouse, is being sued in New York by a litigation support company after the firm allegedly skipped out on a $159,116 bill. In 2020, the firm faced lawsuits from litigation funders alleging they were owed millions of dollars. (Reuters)
- Alvin Sykes, the legal mind behind the reopening of a number of cold cases, including the murder of Emmett Till, died on March 19 at the age of 64. Though Sykes never took the bar exam and attained his legal acumen by reading legal books at the public library, he was a force in the legal industry and successfully lobbied for governmental reform for years. (New York Times)
The U.S. Supreme Court on Tuesday signaled it could narrow the scope of a class action lawsuit accusing credit reporting company TransUnion of violating the Fair Credit Reporting Act by flagging the names of thousands of people as matching those on a government list of suspected terrorists and drug traffickers.
Some justices appeared to agree with TransUnion's lawyer, Kirkland & Ellis' Paul Clement, that insufficient evidence existed showing that all of the class members had suffered a "concrete injury" to pursue a lawsuit. While 8,185 class members’ names matched ones on the government list, the trial only established that TransUnion revealed that information publicly for 1,853 of them.
"I think you have a good argument with respect to the 1,853 ... but I'm more concerned about 6,632 whose information was not in essence published," Justice Brett Kavanaugh told the plaintiffs' lawyer, Samuel Issacharoff of New York University School of Law. (Reuters, Alison Frankel’s On the Case)
Coming up today
- The conservative-leaning Wisconsin Supreme Court is expected to rule on whether to uphold Democratic Governor Tony Evers' statewide mask mandate. The court last year struck down his "safer at home" order issued to combat the COVID-19 pandemic.
- Federal prosecutors in Manhattan will seek a sentence of up to 27 years in prison for a Canadian trucker who they say helped Mexican drug cartel boss Joaquin "El Chapo" Guzman expand the reach of the Sinaloa cartel by distributing cocaine in the United States and Canada. Mykhaylo Koretskyy, also known as "Russian Mike," will be sentenced by U.S. District Judge Paul Crotty after pleading guilty in December to conspiring to import cocaine into the United States. Guzman is serving a life prison sentence.
- Postmates' lawyers from Gibson Dunn including Theane Evangelis will ask a 7th Circuit panel in Chicago to rule that a group of 200 couriers must individually arbitrate claims that they were misclassified as independent contractors. The plaintiffs' attorney, Warren Postman of Keller Lenkner, will defend a judge's decision holding that an arbitrator must decide whether the couriers can arbitrate their claims as a class.
- Taiwanese plastics company Formosa Plastics will ask the 5th Circuit in New Orleans to overturn a judge's ruling finding that it violated its Texas environmental permit and the federal Clean Water Act by discharging plastic pellets and powders into Texas' Lavaca Bay and nearby waterways. Lawyers for Formosa including John Riley of Holland & Knight argue the ruling stems from a district court judge's "untenable reading" of a 2019 consent decree resolving Clean Water Act claims against the company.
- New York Attorney General Letitia James will ask a bankruptcy judge to block the National Rifle Association from relying on evidence during an upcoming trial that it previously claimed was subject to attorney-client privilege. The April 5 trial before U.S. Bankruptcy Judge Harlin Hale in Dallas will address James' motion to dismiss the NRA's Chapter 11 case. Her office says the NRA is improperly using attorney-client privilege to withhold details of a Jan. 7 meeting during which the NRA says its board authorized its bankruptcy filing.
Video: Sullivan & Cromwell team breaks new ground for domestic violence survivor
Legal columnist Jenna Greene spoke with Sullivan & Cromwell associate Angela Ellis and managing partner Nicolas Bourtin. The firm is featured in this month's Pro Bono Heroes for winning the release of client Tanisha Davis from prison under New York's Domestic Violence Survivors Justice Act. The 2019 law allows domestic violence survivors to apply for reduced sentences in consideration of their abuse. Watch the full interview, and check out Greene's column.
Debevoise's first Latina partner takes aim at novel private equity projects
When Debevoise & Plimpton in June unveiled its newest class of partners, slipped in among the list of seven promotees was a first: Never in the New York-based law firm's 90-year history had a Latina belonged to its partnership.
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Sally Bergmann Debevoise
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Sally Bergmann, a first-generation professional whose mother is Argentinian, came to Debevoise as an intern after graduating from Washington University in St. Louis in 2008 through a scholarship program that offers underrepresented, incoming law school students the chance to work at law firms.
It was during that summer -- the first of three that Bergmann spent at the firm before graduating Georgetown University Law Center in 2011 -- that Bergmann said she first got exposed to private equity work, which she called appealing.
Her deal scorecard includes transactions for buyout-focused clients ranging from Blackstone, Clayton, Dubilier & Rice, and Odyssey Investment Partners. Her recent work has also included less traditional deals, she said, as a growing number of private equity fund sponsors start putting "much more of a focus on strategies that have some sort of positive environmental or social impact."
Those novel projects have included advising a major financial institution on establishing a fund to exclusively invest in women-founded businesses, she said. Another client, Breakthrough Properties, is raising a fund focused on developing laboratory spaces for life sciences.
"It's been pretty exciting to be able to lead these projects, especially with first-time fund sponsors," she said. "Especially when clients are launching a new strategy, it really requires a lot of creative thinking, a lot of problem solving and thinking outside the box."
"This appointment is a long time coming, and I have no doubt Tiffany will inspire Black students, as well as female students of all races, to pursue a career in IP law or on the bench."
Jeanne Gills, an intellectual property lawyer at Foley & Lardner, on President Joe Biden's announcement that he would nominate Perkins Coie patent litigator Tiffany Cunningham to the Federal Circuit, the only federal appeals court to never have a Black judge. Gills, who is Black, said she looks "forward to the day when we are not lauding the 'first' Black woman (or woman of color) to take on a certain role, but rather it is the norm because the playing field has been leveled." (Reuters)
In the courts
- The FTC said it has filed an administrative complaint and authorized a federal lawsuit to try to block Illumina's $7.1 billion proposed acquisition of cancer detection test maker Grail. The agency said the deal would slow innovation for tests that are designed to detect multiple kinds of cancer. (Reuters)
- The DOJ is investigating U.S. Representative Matt Gaetz, a vocal supporter of former President Donald Trump, over whether he had a sexual relationship with a 17-year-old girl and violated federal sex trafficking laws, The New York Times reported, citing unnamed sources. Gaetz on Twitter said "no part of the allegations against me are true" and claimed he was the victim of an extortion plot. (New York Times, Axios)
- Juan Antonio "Tony" Hernandez, the brother of Honduran President Juan Orlando Hernandez, was sentenced by U.S. District Judge P. Kevin Castel in Manhattan to a "richly deserved" sentence of life in prison after he was convicted of drug trafficking and related weapons charges. Defense lawyer Peter Brill of the Brill Legal Group said he plans to appeal. (Reuters)
- The 7th Circuit upheld an NLRB ruling by finding that a winery employee was not racially insensitive when he wore a vest that said "Cellar Lives Matter" in the midst of a union organizing campaign. The ruling was a loss for Constellation Brands, which owns beer, wine and liquor brands including Corona, Modelo, and Svedka vodka, and its lawyers including Karol Walker of Kaufman Dolowich & Voluck. (Reuters)
- Singer-songwriter Ed Sheeran and Sony Music Publishing can't duck one of three lawsuits accusing him of lifting his 2014 smash "Thinking Out Loud" from Marvin Gaye's 1973 classic "Let's Get It On," U.S. District Judge Ronnie Abrams in Manhattan ruled. The lawsuit was filed by Structured Asset Sales LLC, which owns one-third of "Let's Get It On" co-writer Ed Townsend's estate, and its lawyer Hillel Parness of Parness Law Firm. Pryor Cashman’s Donald Zakarin is on defense. (Reuters)
- KPMG has agreed to pay $10 million to resolve a long-running class action lawsuit in Manhattan federal court by female employees who say the professional services firm systematically discriminated against them in pay and promotions. The lawsuit, pursued by lawyers at Sanford Heisler Sharp, at one time sought $350 million in damages. Peter Hughes of Ogletree Deakins Nash Smoak & Stewart has been defending KPMG. (Reuters)
- Three residents of Flint, Michigan, who stand to receive part of a $641 million partial settlement of lawsuits filed by victims of the city's water crisis against the state are urging a federal judge to reject the plaintiffs' attorneys' request for an "excessive" $202.7 million in fees. They're represented by Center for Class Action Fairness at the Hamilton Lincoln Law Institute, founded by the prominent class action watchdog Ted Frank. (Reuters)
- A new offer to lead Hertz's reorganization is now on the table from Centerbridge Partners, Warburg Pincus and Dundon Capital Partners, the rental car company’s lawyers at White & Case said in a filing in federal bankruptcy court in Delaware. The new bid has prompted Certares Opportunities and Knighthead Capital Management to enhance their existing offers. Both plans would provide Hertz with more than $2 billion in liquidity and $1.3 billion in debt. (Reuters)
Industry moves
- Larry Medvinsky, a partner at Clifford Chance for nearly three decades, has joined Morrison & Foerster as a partner in the firm’s corporate department in New York. Medvinsky previously worked on the $929 million initial public offering for the owner of the Empire State Building. (Reuters)
- Healthcare lawyers Torrey McClary and Ranee Adipat have joined Ropes & Gray in San Francisco as a partner and as a counsel, respectively. They were previously with King & Spalding. (Ropes & Gray)
- Yasmin Nelson, a former senior policy advisor to Vice President Kamala Harris when she was in the U.S. Senate, has joined Bracewell LLP as a senior principal in Washington D.C. Nelson is expected to bring her political prowess to the firm’s policy resolution group. (Bracewell)
- Greenberg Traurig has snagged three shareholders from Wilson Sonsini Goodrich & Rosati for its intellectual property and technology and life science practices. Prashant Girinath and David Harburger will be joining the firm’s Boston office and Charles Andres will be joining in Washington D.C. (Law.com)
- Mandana Massoumi, former co-chair of Manatt, Phelps & Phillips' retail and consumer goods group, has joined Seyfarth in Los Angeles. Massoumi, a litigator, will be working for the firm's labor and employment practice. (Seyfarth)
- Former Baker Botts partners Jason Rocha and A.J. Ericksen have joined White & Case's Houston office and will work for the firm's global capital markets practice. Both Rocha and Ericksen advise companies on securities and M&A transactions. (White & Case)
Lawyer speak: Delaware Court of Chancery reminds that shareholder rights plans have limits
Delaware Vice Chancellor Kathaleen McCormick last month declared that a "poison pill" shareholder rights plan put in place by energy company Williams Cos. was not valid. After a pandemic-fueled stock price decline, the company implemented an extremely stringent shareholder plan that the judge categorized as "unprecedented." A number of shareholders filed lawsuits, claiming the company breached their fiduciary duty when enacting the plan. Locke Lord’s Stanley Keller, Michelle Earley, Rob Evans and Eugene McDermott Jr in a recent article discuss the lessons to be learned from this decision. Read more.
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