Feb. 15, 2022

Good morning. The jury is still out on Sarah Palin’s defamation case against the New York Times, but U.S. District Judge Jed Rakoff has made up his mind. We’ve got the latest from the court, and a snapshot of the judge. Plus, a Johnson & Johnson subsidiary is back in court today to defend a bankruptcy strategy that plaintiffs’ lawyers declared “rotten.” The ABA's House of Delegates backs accommodations for lactating women, and Facebook and its lawyers at Gibson Dunn could soon face a sanctions bid in a privacy class action. It’s Tuesday, and we’re on a roll. Let’s jump in!

Our colleague Karen Sloan, who reports on law firms, law schools and the business of law, is cowriting The Daily Docket while Diana Novak Jones is on parental leave. Were you forwarded this email? Were you forwarded this email? Subscribe here.

'My job is to apply the law,' judge says in plan to dismiss Palin's NYT complaint

REUTERS/Eduardo Munoz

The Manhattan federal judge’s plan to dismiss Sarah Palin’s defamation complaint against the New York Times — while the jury was deliberating — was unusual but reasonable and will likely hold up on appeal, a legal expert told Reuters. "It is very difficult for plaintiffs to prevail in defamation cases," Gautam Hans, a Vanderbilt University Law professor, said. "That's one reason you see some antipathy toward the current state of the law, including from some Supreme Court justices."

U.S. District Judge Jed Rakoff concluded that the Times, in the editorial at the center of Palin’s lawsuit, did not maliciously link the former Republican Alaska governor and 2008 Republican U.S. vice presidential candidate to a mass murder, our colleagues Jody Godoy and Jonathan Stempel report.

Rakoff plans to enter a formal dismissal after jurors reach their own verdict. The 2nd Circuit "would greatly benefit from knowing how the jury would decide it," Rakoff said. The judge said he was "not altogether happy" about dismissing Palin’s complaint. He called the op-ed "an example of very unfortunate editorializing on the part of the Times." Rakoff added: "My job is to apply the law. The law here sets a very high standard for actual malice, and in this case the court finds that that standard has not been met.”

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Making lactating mothers pump in bathroom stall is not OK, ABA says

REUTERS/Callaghan O'Hare

A dearth of clear policies and accommodations for breastfeeding mothers is yet another barrier women face in the legal profession. That’s the message the American Bar Association’s House of Delegates heard Monday before overwhelmingly approving a resolution urging legal employers, law schools, bar examiners and bar associations to provide “reasonable and accessible” accommodations for lactating women, Karen Sloan reports.

All too often, women are forced to pump in inconvenient or unsanitary spaces such as bathroom stalls, proponents told delegates. The ABA in 2019 urged courthouses to add lactation rooms, and now it’s time for other corners of the industry to step up and do better, they said. That includes one “off the clock” 30-minute break every three hours; a private or semiprivate place to pump that is not a bathroom; and clear signage directing people to the accommodation area, according to the resolution. And mothers should be allowed to bring pumps into bar exam and law school testing rooms.

“This is a matter of access to this profession and dignity for our colleagues,” said Kentucky lawyer Michelle Browning Coughlin, founder of the nonprofit advocacy group Mothers Esquire.

Industry buzz

The American Bar Association adopted a new rule that law schools provide students with training in bias, racism and “crosscultural competency” at the beginning of their legal studies, and once more before they graduate. (Reuters)
Paul Weiss was counsel to Apollo Global Management for its purchase of a majority stake in packaging company Novolex Holdings from the Carlyle Group. Lawyers from the firms Nelson Mullins and Latham represented Novolex. Latham also represented Carlyle. (Reuters)
Apple’s lawyers at Paul Weiss say class counsel at Hagens Berman should get millions of dollars less in fees than they’ve asked for as part of a $95 million settlement in California federal court alleging deceptive consumer practices. (Reuters)
Law firm Dykema Gossett has opened its fifth Texas office, poaching three attorneys from Dallas-based midsize firm McCathern, Shokouhi, Evans, Grinke to establish a Houston outpost. (Reuters)

Number of the day:

$100,000,000

REUTERS/Dado

That’s the amount that a subsidiary of crypto company BlockFi has agreed to pay the U.S. Securities and Exchange Commission and 32 states to settle charges in connection with a retail crypto lending product the New Jersey company offered to nearly 600,000 investors. BlockFi, represented by Steven Peikin, head of Sullivan & Cromwell’s securities enforcement and investigation practice, neither admitted nor denied the SEC’s allegations. Read more about the settlement.

Columnist spotlight: Sanctions threat looms for Facebook and Gibson Dunn in privacy class action

At a hearing last week in a class action accusing Facebook of selling user data to Cambridge Analytica and other business partners, U.S. District Judge Vince Chhabria said he was strongly inclined to make the company — and its lawyers — pay for “stonewalling” plaintiffs on hotly contested discovery. Alison Frankel got hold of a transcript of the hearing. Her take: Facebook and its lawyers are learning that fierce litigation tactics can provoke equally fierce blowback.

Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.

"The cases they brought against professors had nothing to do with spying or espionage. It was simply racial profiling."

—U.S. Representative Ted Lieu, Democrat of California, remarking about a series of U.S. Justice Department cases against professors launched in 2018 under the label “China Initiative.” The DOJ is completing a review of the initiative, which was aimed at combating Chinese espionage and trade secret theft. Former officials and critics of the initiative said they expect the DOJ’s examination will result in a shift away from targeting academic researchers, our colleagues Sarah Lynch, Nate Raymond and Jane Lanhee Lee report. Read more about the collapse of several cases and blowback from civil rights groups

Coming up today

Jury selection is expected to begin in Ann Arbor, Michigan, federal court in the first bellwether trial in the Flint water crisis. The plaintiffs are four children who lived in Flint and were exposed to lead-contaminated drinking water. The defendants are engineering companies accused of professional negligence. Four bellwether trials are expected to take place following last year's approval of a partial settlement worth $626 million for victims. U.S. District Judge Judith Levy is presiding over the litigation.
Roger Ng, former head of investment banking for Goldman Sachs in Malaysia, returns to Brooklyn federal court for the second day of his trial on charges that he conspired to launder money and to violate an anti-bribery law. Prosecutors on Monday accused Ng of seeking to make millions of dollars laundering money looted from Malaysia's 1MDB sovereign wealth fund. Ng has pleaded not guilty and his lawyer has said he is a "fall guy" for one of the biggest financial scandals in Wall Street history. The trial could last up to six weeks.
Billionaire activist investor Carl Icahn's investment firm Icahn Partners will ask Chancellor Kathaleen McCormick of the Delaware Chancery Court to order Southwest Gas Holdings and its board to produce documents showing when the gas distributor learned about Icahn's hostile tender offer, which sparked a proxy contest, and how the board has defended against the challenge. Southwest Gas, represented by Morrison & Foerster, contends that the Icahn firm is using the discovery request to "obtain a potential information advantage in a fight over corporate control.” The law firm Thompson Hine represents Icahn Partners.

Court calendars are subject to last-minute docket changes.

In the courts

Johnson & Johnson subsidiary LTL Management came under attack in New Jersey court for attempting to use the bankruptcy process to resolve tens of thousands of claims that its baby powder and other talc-based products caused cancer. "At its core, this case is rotten," Jeffrey Jonas, a lawyer for one of the plaintiffs' committees said. J&J maintains that its consumer talc products are safe. (Reuters)
Boeing must defend itself for a second time from accusations that it stole trade secrets from a contractor that it allegedly bankrupted, the 11th Circuit says. Craig Primis at Kirkland advocated for Boeing, and Laurie Daniel of Holland & Knight was counsel to Alabama Aircraft Industries. (Reuters)
The Texas attorney general’s office, working with the law firms Keller Lenkner and McKool Smith, is suing Meta’s Facebook in state court over allegations the social media company violated state privacy protections with facial-recognition technology that collected the biometric data of millions of Texans without their consent. (Reuters)
Country singer Dwight Yoakam and Warner Music settled their copyright dispute just hours before the parties were scheduled to present arguments to a federal judge. Yoakam sued Warner last year, claiming the record label refused to accept that he was reclaiming his copyrights to his early works — which is allowed in some circumstances after 35 years under U.S. copyright law. (Reuters)
Cooley client Noom will pay $62 million to end a lawsuit accusing the weight loss app of deceptive practices over automatic subscription renewals. Plaintiffs’ firm Wittels McInturff Palikovic said in a court filing it will not seek more than about $18 million in attorneys’ fees as part of the settlement. (Reuters)

Industry moves

Cadwalader brought on Helen Maher as a New York-based partner from Boies Schiller, where she led the sports and gaming practice. (Reuters)
Kelly Gibson, who spent 14 years at the U.S. Securities and Exchange Commission and served as acting director of its enforcement division, will join Morgan Lewis as co-leader of the securities enforcement practice in May. She will be based in the firm’s Philadelphia and New York offices. (Reuters)
Paul Hastings hired New York-based financial technology partner Chris DeCresce, former co-leader of the securities and capital markets practice at Covington. (Reuters)
Shearman & Sterling added former Jones Day international arbitration partner Matthew Skinner in London. (Reuters)
Reed Smith has added 12 attorneys to its real estate financial services group from Akerman, including partners Randy Eckers, Michael Estreicher, Taila Martin, Alexander (A.J.) Sokoloff, and Samuel Lee. The group is based in New York. (Reed Smith)
Former Assistant U.S. Attorney Kenya Davis joined Boies Schiller in Washington, D.C., as a partner in the investigations and white-collar crime group. (Boies Schiller)
Latham & Watkins added partner Barrie VanBrackle to its emerging companies practice in Washington, D.C. She was previously a partner at Orrick. (Latham & Watkins)
McGuireWoods said healthcare partner Kristen McDermott Woodrun joined the firm’s Atlanta office. She was previously a partner at BakerHostetler. (McGuireWoods)

Lawyer speak: Ethics and vaccine information: a playbook for the pandemic

The COVID-19 pandemic has raised myriad ethics questions for lawyers, writes Sateesh Nori of The Legal Aid Society. Should attorneys share information with clients about masks, vaccines and public health policies? Should attorneys encourage our clients to get vaccinated? Plus, Nori writes, ethical duties to protect privacy and avoid conflicts of interest raise questions around knowing the vaccination status of a client. Read more about the ethics questions in play, and what factors should help to guide lawyers.

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