Good morning. The one-year anniversary of George Floyd's death has arrived, capping a period of reflection about race in America that has forced law firms to confront their long-simmering diversity shortcomings. The end of the blockbuster trial between Epic Games and Apple saw U.S. District Judge Yvonne Gonzalez Rogers questioning what role she should play in policing the smartphone market. Skadden is laying out return-to-work policies that include a requirement that unvaccinated employees be tested. And Guam came out a winner at the U.S. Supreme Court.
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As Epic Games v. Apple trial ends, judge questions upending Apple's App Store
The courtroom showdown between "Fortnite" developer Epic Games and Apple wrapped up on Monday with lawyers delivering unconventional, debate-style closing arguments to U.S. District Judge Yvonne Gonzalez Rogers, who said it could take her months to ultimately rule in the closely-watched antitrust case.
Throughout the trial, Epic has alleged that Apple enforced its App Store policies in a monopolistic way to extract as much as a 30% cut of developers' app sales. A lawyer for the game maker, Gary Bornstein of Cravath, urged Gonzalez Rogers to open up the iPhone to competing app stores and bar Apple from requiring developers to use its in-app payment system.
Stephen Nellis reports that the Oakland, California-based judge at times questioned some of Apple's practices and whether they were anti-competitive. But the judge said she was "concerned" that Epic's proposed changes would result in the company paying Apple nothing. She pressed Epic on whether there was legal precedent for intervening so deeply in a company's business model as it wanted, saying that "courts don't run businesses."
Veronica Moye, a lawyer for Apple at Gibson Dunn, argued that a ruling for Epic would bar consumers from making an even bigger choice between Android devices that can run third-party apps and Apple's sealed ecosystem. "The relief requested here is to force Apple to take a competing product off the market," she said. Learn more.
Industry buzz
- Skadden is reopening its offices with a flexible return-to-work plan and is requiring unvaccinated personnel to get tested before they come in, seemingly making it the first Big Law firm to ink rules around testing unvaccinated workers returning to the office. (Reuters, Above the Law)
- Cohen Milstein, a plaintiff-side complex litigation firm, disclosed that it had "discovered unusual activity on certain computer systems" on Jan. 23, potentially risking the security of some data. The firm said it investigated the incident and isn't aware of any misuse of information. (Reuters)
- Allison Murphy, the former chief oversight counsel of the House select subcommittee on the coronavirus crisis, is set to join Kirkland & Ellis. Murphy also served as associate counsel in former President Barack Obama's Office of White House Counsel and has worked as counsel for the non-partisan, non-profit Protect Democracy. (Reuters)
- Jodie Shihadeh, a former entertainment partner at the Davis Firm, is branching off to start her own law firm, Shihadeh Law P.C. Her clients include producers and songwriters that have worked with the likes of Megan Thee Stallion, Dua Lipa, Lil NasX and Nick Jonas. (Reuters)
- Thirteen former Bryan Cave lawyers, including 11 partners, are decamping to Harrison & Held's newly-launched Atlanta, Denver and St. Louis offices. The moves come as trust and estates practices continue to shrink at major U.S. law firms. (Reuters)
- Republican Missouri Governor Mike Parson selected Eastern District Appeals Court Judge Robin Ransom to be the first Black woman to serve on the Missouri Supreme Court. She'll be the only the third Black judge to ever serve on the state's top court. (AP)
- The Florida Supreme Court has given New Jersey attorney Thomas Restaino, counsel at the Law Office of Tong, Rea, Bentley & Kim, the green light to practice law in the state remotely under a strict set of rules. The court's approval of the advisory opinion is sparking big conversations about legal practices and remote work as law firms ease into hybrid work models. (Wolters Kluwer Intellectual Property Law Daily)
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Number of the day:
$160 million
The U.S. Supreme Court revived a lawsuit by the territory of Guam that sought to force the federal government to help cover the cleanup costs of a landfill it inherited from the U.S. Navy. The 9-0 court’s ruling, written by Justice Clarence Thomas, overturned a lower-court decision that had left Guam on the hook for the $160 million cleanup. Guam's attorney, Gregory Garre of Latham & Watkins, said the decision "paves the way for the United States to pay its fair share for the cleanup of the Ordot Dump." (Reuters)
Coming up today
- The U.S. Senate will vote on whether to confirm Kristen Clarke to lead the DOJ's Civil Rights Division. Clarke, who has led the Lawyers' Committee for Civil Rights Under Law, has faced fierce Republican opposition, with 11 on the Senate Judiciary Committee voting against sending her nomination to the full Senate. That prompted Democratic Majority Leader Charles Schumer to use a discharge petition to bring her nomination to the floor. Learn more about her.
- The New York Appellate Division, First Department will hear New York City's appeal of a ruling that cleared the way for a judicial inquiry that’s set to begin July 19 into the death of Eric Garner, who was in 2014 filmed saying "I can’t breathe" as an officer held him in a chokehold. Alvin Bragg, the co-director of the Racial Justice Project at New York Law School, will argue for the petitioners seeking the inquiry, who include Garner's mother and sister. If allowed to proceed, the inquiry before Manhattan Supreme Court Justice Erika Edwards could include public testimony from Mayor Bill de Blasio and former NYPD Commissioner James O'Neill.
- The 4th Circuit in Richmond, Virginia, will consider whether to uphold the conviction and death sentence of Dylann Roof, the white supremacist who killed nine Black people at a South Carolina church in 2015. His lawyers have argued he was too mentally ill to stand trial or represent himself at sentencing. Sapna Mirchandani, a federal public defender from Maryland, will argue his appeal and will face Bonnie Robin-Vergeer of the DOJ.
- Lawyers for security systems provider Secure Home Holdings led by Skadden’s Van Durrer will ask U.S. Bankruptcy Judge J. Kate Stickles in Wilmington, Delaware to approve its prepackaged reorganization plan, through which senior lenders will take control of the company.
- In other pre-pack news, The Collected Group, which owns fashion brands Joie and Current/Elliott, will ask U.S. Bankruptcy Judge Laurie Selber Silverstein in Wilmington, Delaware, to approve its prepackaged reorganization plan, which puts secured lenders in control of the company. The Collected Group, represented by lawyers led by Brian Hermann of Paul Weiss, expects to reduce its $185 million in secured debt to $30 million.
- The hack of Texas software company SolarWinds, whose systems were hijacked to break into government agencies and steal thousands of officials' emails, will be the subject of a hearing of a U.S. House of Representatives Science, Space, and Technology Committee subcommittee.
How George Floyd's death became the 'spark' for renewed push to diversify law firms
A year has passed since the death of George Floyd under the knee of a Minneapolis police officer. For large law firms, the death and the protests over systemic racism in America that followed added fuel to a long-running conversation about the need to diversify the legal profession.
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Joseph West
Duane Morris
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That cause has been core to Joseph West's career. He spent nearly five years as the head of the Minority Corporate Counsel Association before joining Duane Morris in 2015 as a partner and its chief diversity and inclusion officer. He spoke with The Daily Docket about Floyd's impact and the road ahead.
On how Floyd's death increased momentum for addressing law firm diversity: "George Floyd's murder was a spark. But I think there were some embers that were already smoldering before that. You saw in the legal profession, particularly in the corporate legal sector, a movement towards an understanding and a recognition both of the business case for diversity, as well as sort of collective ownership responsibilities for meaningful diversity and inclusion in corporations and in law firms."
On how client attention on the lack of diversity in law firms has increased: "A year or so before George Floyd was killed, there was this highly publicized open letter that more than 170 general counsel published basically saying, we want our firms to get serious about diversity or we will fire them. You didn't see that five years before that, you just saw a handful of companies doing that."
On why Floyd's death had such an impact: "If you're a Black man of a certain age in this country, you know what deep, systemic racism and the ugly side of racism looks like. What the pandemic did was democratize that level of empathy. Everybody understood what it felt like to be fearful that you could risk your life just by going to the grocery store."
On what his firm is currently focused on: "One of the things that we've been focused on is providing additional leadership opportunities for diverse lawyers within the firm. And we've improved on that significantly. We have a very diverse partners board, which is the managing body of the firm, and we want that body to become even more diverse."
"None of those people can turn back the biological clock to where they were before that day."
Dena Sharp of Girard Sharp, who during her opening statement in San Francisco federal court, urged a jury to hold cryopreservation tank manufacturer Chart Industries Inc liable for the failure of a tank at Pacific Fertility Center, which had resulted in the highly-publicized destruction of thousands of embryos and eggs. The trial centers on claims by five plaintiffs out of more than 200 patients who sued over the 2018 tank failure. John Duffy, Chart's lawyer at Swanson, Martin & Bell, argued the facility ignored clear warning signs that the tank could fail and improperly kept using it. (Reuters).
In the courts
- The DOJ in a court filing said it would appeal a decision that faulted former Attorney General William Barr's handling of the 2019 special counsel report on then-President Donald Trump. U.S. District Judge Amy Berman Jackson in D.C. as part of her ruling had ordered the release of an internal memo that Barr said he relied on in deciding how to handle the Mueller report. The decision to partially appeal the ruling was seen as an early test of Attorney General Merrick Garland's willingness to defend the DOJ's actions during Donald Trump's presidency. (Reuters)
- The U.S. Supreme Court declined to allow a Missouri death row inmate with significant health problems to pursue his effort to face execution by firing squad instead of lethal injection for his conviction in a 1994 triple homicide. The court’s three liberals dissented, with Justice Sonia Sotomayor saying that the 8th Circuit in ruling against Ernest Johnson “has sacrificed the Eighth Amendment’s chief concern for preventing cruel and unusual punishment.” (Reuters)
- Gordon Sondland, the former U.S. ambassador who testified against President Donald Trump during his first impeachment trial, sued former Secretary of State Mike Pompeo and the federal government in D.C. federal court seeking $1.8 million in legal fees. Pompeo "made a legally binding promise" to reimburse his fees, his attorney Mark Barondess of Miller Barondess wrote in the complaint. (Reuters)
- The Ohio Supreme County in a 6-1 ruling ordered the Republican-dominated board of commissioners of Stark County to acquire new voting machines made by Dominion Voting Systems that were selected by its elections board after it resisted doing so. Dominion has been pursuing litigation against Fox News and others over false claims that it rigged the 2020 election against former President Donald Trump. (AP)
- U.S. District Judge Jed Rakoff in Manhattan rejected a bid by MiMedx Group to force former CEO Parker Petit and former COO William Taylor to pay it $40.2 million in restitution, saying the biotech company wasn't a victim of the scheme they were convicted of orchestrating to defraud investors. MiMex's lawyers including Sidley Austin's David Rody had sought to recoup the millions of dollars in legal fees it advanced to pay the executives' attorneys. (Reuters)
- JBS USA LLC will pay $5.5 million to settle a longrunning federal lawsuit by the EEOC in Colorado accusing the meatpacking company of firing scores of Somali Muslims who had sought longer prayer breaks during the holy month of Ramadan. JBS, represented by Heather Fox Vickles of Sherman & Howard, denied wrongdoing. (Reuters)
- Columbia University has agreed to pay $13 million to resolve a lawsuit by employees and retirees who accused the Ivy League school of causing participants in its 403(b) retirement plan to pay excessive fees for administrative and investment services. The proposed settlement in Manhattan federal court was the latest to result from a series of similar cases that Schlichter Bogard & Denton pursued over college retirement plans. Columbia, represented by Mayer Brown's Brian Netter, denied wrongdoing. (Business Wire)
- A committee of individuals and government entities with opioid-related claims against Mallinckrodt are objecting to a request to begin soliciting votes for its restructuring plan, saying the drug company needs to provide more information and time for them to determine whether they will vote in support of the proposal. U.S. Bankruptcy Judge John Dorsey in Wilmington, Delaware, is holding a hearing on the request by the company's lawyers at Latham & Watkins on Wednesday. (Reuters)
Industry moves
- Two Thompson & Knight partners are making an exit ahead of the firm's planned merger with Holland & Knight. The former head of Thompson & Knight's Dallas office, Holt Foster, will jump to Sidley Austin to co-lead the firm’s energy practice. And Craig Carpenter, who was promoted to partner at Thompson & Knight in March, is heading to BakerHostetler. (Reuters)
- Winston & Strawn has lost its M&A practice co-head Christopher Zochowski and private equity associate Bradley Noojin to Shearman & Sterling, where Noojin will be a partner. The pair will be based in the firm's D.C. office as it tries to bounce back from revenue losses and partner departures. (Reuters)
- Ashley Aull is heading back to Munger, Tolles & Olson as a partner after serving nine years as the chief of the criminal appeals section in the U.S. Attorney’s Office for the Central District of California. She will be based in the firm’s Los Angeles office, where she will join the white collar litigation and government investigations practice. (Munger Tolles)
- Day Pitney is getting a new practice chair from Dentons. Scott Brian Clark will chair the firm's multistate tax practice, which is based in New York. Clark, who will be based in Stamford, Connecticut, will split his time between the Big Apple, Greewich and West Palm Beach. (Day Pitney)
- Former Katten aviation partner Tom Healey has landed at Hughes Hubbard & Reed's D.C. office. (Hughes Hubbard)
- Labor and employment litigator Christine Tenley is now a partner in McGlinchey Stafford's New Orleans office. Tenley leaves Burr & Forman where she was a partner in the firm’s Atlanta office. (McGlinchey)
Columnist spotlight: Instagram class action by photographers wants to upend online publishing
A group of plaintiffs that could turn out to include thousands of photographers filed a proposed class action last week against Instagram, accusing the social media site of enabling online publishers such as Buzzfeed and Mashable to infringe their copyrighted images by embedding links to photographers' Instagram accounts. Online publishers have long claimed that Instagram licensed them the right to embed the links – and that Instagram users agreed to the sublicenses when they signed up for accounts. But as Alison Frankel explains, Instagram parent Facebook disclosed last year that there are actually no such sublicense deals. Read here to find out why that disclosure is the key to the photographers' case.
Lawyer speak: Supreme Court limits community caretaking doctrine
The U.S. Supreme Court recently ruled that the community caretaking doctrine does not allow police to conduct a warrantless search of a home to seize firearms. RumbergerKirk partner J. David Marsey advises law enforcement officers to refrain from conducting any residential searches based on the community caretaking doctrine regardless of the circumstances. Read more.
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