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May 18, 2021, 12:18 PM Coordinated Universal Time
Leading the News
Freshfields’ Growth Lures Hogan’s Golden to Life Sciences Team

Life sciences dealmaker and IP licensing lawyer Adam Golden is leaving Hogan Lovells to join Freshfields Bruckhaus Deringer, a firm that has made a slew of flashy hires in the U.S. over the past 18 months.

Business of Law
White & Case Wants Part-Time Return to Office in September (1)

White & Case is asking attorneys and staff in the U.S. to return to the office for “two or three days per week” starting in September.

Plaintiffs’ Lawyer in Roundup Cases Shifts to Syngenta Herbicide

Aimee Wagstaff, who was selected to serve as national co-lead counsel in litigation against Bayer AG’s Roundup, is now taking on Syngenta AG and its herbicide, paraquat.

Law Firms
Cooley Bets on the Midwest Venture Scene with New Chicago Office

Cooley’s official launch of a 10-partner Chicago outpost on Monday is a culmination of what firm vice chair Mike Lincoln said was a decade of scoping out the Midwestern venture capital scene, which he believes can support the firm’s full-service office ambitions.

Akin Gump Adds Second Pair of Thompson & Knight Partners (1)

Akin Gump Strauss Hauer & Feld is bringing on another pair of corporate partners from Thompson & Knight as it continues its expansion in energy transactional work in Texas.

Paul, Weiss Advises KKR on Majority Stake Buy in ERM Consultancy

Paul, Weiss said it advised KKR & Co. Inc. on its agreement to acquire a controlling stake in U.K.-based consultancy ERM Group Inc.

In-House
Canadian Pot Producer Cronos Adds Avon Legal Chief (Correct)

Cronos Group Inc., a Canadian pot producer partially owned by cigarette maker Altria Group Inc., has hired a Federal Trade Commission expert as legalized weed continues to make inroads in the U.S.

Ex-TriMas Legal Boss Joins Michigan Truck Maker Shyft Group (1)

TriMas Corp.’s former general counsel Joshua Sherbin has joined specialty vehicle producer The Shyft Group Inc. as chief legal officer and chief compliance officer less than a week after officially leaving his previous job.

Legal Tech
Legal Tech Company’s Computer Fraud Case Axed Over Jurisdiction

A legal technology company lost its chance to pursue a Computer Fraud and Abuse Act lawsuit it filed against one of its business partners in California after a federal judge there ruled the company didn’t have personal jurisdiction in the state.

Judiciary
Colorado Judge Censured, Retires After Second DUI Arrest

A Colorado judge arrested twice for driving under the influence of alcohol agreed to retire and was publicly censured.

Law Schools
Supreme Court Declines Female Law Professor’s Pay Bias Suit

The U.S. Supreme Court Monday decided against reviewing a Florida A&M University law professor’s lawsuit alleging that a pay inequity study showed she was subjected to sex discrimination, and also retaliated against for previously suing for pay bias.

Also in the News
Insights
Shuttering Dakota Access Will Impact More Than a Pipeline

A federal judge will soon decide whether the Dakota Access Pipeline can continue operations while the latest environmental review is completed. The GAIN Coalition’s Tom Magness, a former colonel in the U.S. Army Corps of Engineers, analyzes the potential legal and regulatory implications on future infrastructure permitting and development should the pipeline be shutdown.

A Promising Path to Increase Access to Justice

A promising solution to increase access to legal services for people of modest means is to create the equivalent of nurse practitioners in the legal profession, explain Jason Solomon, executive director of the Stanford Center on the Legal Profession, and Noelle Smith, a third-year Stanford Law student. Several states are considering this, they say, and the result will improve the way the legal system functions.

‘Negative Options’ in Consumer Subscriptions Are Risky

Companies need to re-look at their customer subscriptions and renewals to make sure they stay compliant with rapidly evolving legal requirements, says McDermott Will & Emery partner Brian J. Boyle. He says automatic renewals are getting the attention of federal and state enforcers.

Big Law's Associate Appetite Biting Regional Firms

A deluge of corporate work without enough associates to staff it has sent cash flush Big Law hunting for hires in smaller markets, a dynamic that could threaten regional law firms in the long run.

Big Law Hiring Boom: From January through mid-May this year, there have been 660 lateral corporate associate hires among the top 100 law firms in the country, according to data from Leopard Solutions. This equals nearly all the 662 corporate associate hires made by the same group of law firms during the whole of 2020.

‘Problem for Smaller Markets': Though regional firms haven’t moved to boost compensation and bonuses for their associates en masse, the risk of not doing it and losing top talent to Big Law is a very real threat. That’s especially true as the largest firms get more flexible about where their associates work. “It’s a real problem for smaller markets where these big firms are coming in and kind of upending the business models,” said Dan Binstock of legal search firm Garrison & Sisson.

Big Law’s Associate Appetite Means New Perils for Regional Firms

May 18, 2021, 10:00 AM Coordinated Universal Time

A deluge of corporate work without enough associates to staff it has sent cash flush Big Law hunting for hires in smaller markets, a dynamic that could threaten regional law firms in the long run.

The nation’s largest law firms have thrived in spite of Covid-19, especially corporate practices, like M&A, where demand surged 7.8% in the first quarter of 2021 over the same period last year, according to a recently released report by Thomson Reuters. All that work has made this year’s hiring market for corporate associates the hottest in recent memory.

Since the beginning of the year through mid-May, there have been 660 lateral corporate associate hires among the top 100 law firms in the country, according to data from Leopard Solutions. This equals nearly all the 662 corporate associate hires made by the same group of law firms during the whole of 2020.

Though regional firms haven’t yet moved to increase compensation and bonuses for their associates en masse, the risk of not doing it and losing top talent to Big Law is a very real threat, especially as the largest firms get more flexible about where their associates work.

“It’s a real problem for smaller markets where these big firms are coming in and kind of upending the business models,” said Dan Binstock, a partner at Washington-based legal search firm Garrison & Sisson.

Associates’ Pay Day

Big Law has proved so far in 2021 that it’s willing to dole out the cash to recruit and retain junior talent, as evidenced by the up to $64,000 many firms are offering associates in “special bonuses” this year.

It’s a talent market that’s given well-qualified corporate associates a huge amount of leverage when they sign on with a new Big Law employer.

Corporate, capital markets, and M&A associates “can pretty much go wherever they want on whatever terms they want,” said San Francisco-based Major Lindsey & Africa recruiter Kate Reder Sheikh.

Those terms increasingly include hefty bonuses just to join up. “I have not seen a [signing] bonus lower than $15,000 and I have seen as high as $75,000,” Sheikh said.

“In some cases, people are asking for specific bonuses,” she added. “For example, the amount that would extinguish their student loan debt.”

Big firms are also departing from their salary scales for certain candidates, offering a higher base salary than their associate class year would normally receive through either bumping them up a year or negotiating different salary levels, according to Sheikh.

But Big Law firms are no longer just giving massive salaries and bonuses in major markets like New York, Chicago, or San Francisco.

Jesse Hyde, a Chicago-based director at legal recruitment group Lateral Link, cited Milwaukee as one city where these firms have offered New York-level special bonuses, which he said has not previously been the norm.

In Denver, some Am Law 100 firms will now pay full New York scale in both salary and bonuses, and firms have raised associate salaries in places like Minneapolis, Atlanta, and Ohio to lure talent, Hyde said.

Big Law firms in major markets are going into smaller markets to pick off associates, said Binstock, both throwing more money at them than the going local market rates, and allowing them to work from home.

“If someone is living in Nashville, Tennessee, and getting paid on a New York salary, it’s certainly very hard to turn that down,” he said.

Damned Either Way

After the pandemic shuttered offices and forced lawyers to work from home, the American Bar Association issued an opinion in late December that condoned allowing lawyers to physically work in a state where they aren’t barred or licensed so long as they only practice the law of the state where they are admitted.

The advisory opinion was heralded as a “major step” forward in providing lawyers more flexibility to work from home, and some states that didn’t allow lawyers such leeway before have already followed the ABA’s lead.

But Binstock said one unintended consequence could be the use of changing standards as a recruitment weapon, as they allow firms to hire more flexibly in new geographic markets.

This could help fuel the mobility of associates, even those outside major cities, upward to bigger and richer firms.

“A big chunk of the movement is up market — associates moving up the ladder,” Sheikh said, noting that she has seen associates at firms outside the Am Law 200 head to top 10 Am Law firms.

“I’m not seeing too many lateral moves,” she said. “Only those that are largely a step up.”

Some Big Law firms have been actively hiring remote lawyers even in places where they don’t have an office, a major shift from their previous approach.

Goodwin Procter is hiring associates to work remotely on a permanent basis and has hired in Dallas, Houston, Miami, Hartford, Conn., Richmond, Va., and Charlotte, N.C. Binstock said that he is working with Washington-based firms that are conducting nation-wide searches for talent.

Though firms in regional markets haven’t yet increased associate compensation across the board in response to this new threat, Binstock said it is something they’re considering as the delta between bigger firms and smaller ones could continue to grow.

But there are dangers for smaller firms attempting to match Big Law’s largesse when it comes to salary and bonuses.

“They’re damned if they do or damned if they don’t,” Binstock said. “If they don’t raise, they risk losing, but if they raise and start paying above a comfortable level, it’s going to impact their profitability and then they risk losing partners.”

To contact the reporter on this story: Meghan Tribe in New York at mtribe@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

Leading the News

Freshfields’ Growth Lures Hogan’s Golden to Life Sciences Team

May 18, 2021, 10:45 AM Coordinated Universal Time

Life sciences dealmaker and IP licensing lawyer Adam Golden is leaving Hogan Lovells to join Freshfields Bruckhaus Deringer, a firm that has made a slew of flashy hires in the U.S. over the past 18 months.

Golden will head Freshfields’ U.S. life sciences practice after representing clients such as Novartis AG, Gilead Sciences Inc., and Celgene Corp. He handles license and collaboration deals, M&A, financings, and commercial transactions.

“The firm has really made significant strides in the U.S.,” Golden said of Freshfields. “I see what’s happening and the types of transactions, antitrust matters, litigation and other matters the firm is working on, and it has clearly gotten my attention.”

Freshfields first turned heads in the U.S. with the 2019 hire of former Cleary, Gottlieb & Steen dealmaker Ethan Klingsberg. It has since hired partners from firms including Kirkland & Ellis, Latham & Watkins, Davis Polk, Wilson Sonsini, Willkie Farr & Gallagher.

Last year, Freshfields opened in Silicon Valley with a group move that included recruiting John Fisher from Sidley Austin. Fisher now leads the firm’s U.S. technology and life sciences M&A practice.

Golden’s move keeps alive a hot market for life sciences lawyers in 2021. It comes just a few months after Hogan Lovells partner Asher Rubin, who co-led Hogan Lovells’ life sciences practice, departed for Sidley Austin.

Golden served as head of Hogan Lovells’ New York corporate practice. He worked across the table from Freshfields lawyers on a complex asset swap completed in 2015 between pharmaceutical giants Novartis and GlaxoSmithKline plc.

Jennifer Bethlehem, the London-based head of Freshfields’ healthcare practice, said the firm’s strategy to grow its life sciences business preceded the pandemic. The pharmaceutical industry’s role in the pandemic, along with innovations such as new types of drugs and therapies, has made life sciences even more important.

“I always used to say Adam Golden is my favorite partner that’s not a partner of mine,” Bethlehem said in an interview. “As I’ve been working with the firm to develop our life sciences strategy over many years now, in my mind Adam has always been a part of that strategy.”

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes in Washington at jhughes@bloombergindustry.com

Analysis: Here's Where Debt, Ethics, and Client Well-Being Clash

Attorneys engaged in public-facing legal practices, such as debtors’ attorneys, often feel tasked with the responsibility of remaining mindful of their clients’ mental and physical well-being in addition to providing legal services. But are attorneys obligated to intervene when clients struggle emotionally? What can they do?

ANALYSIS: Here’s Where Debt, Ethics, and Client Well-Being Clash

May 18, 2021, 9:00 AM Coordinated Universal Time

May is Mental Health Awareness Month, and I cannot think of a better time to explore the inescapable intersection between mental well-being and bankruptcy practice. Attorneys engaged in public-facing legal practices, such as debtors’ attorneys, are often tasked with the responsibility of remaining mindful of their clients’ mental and physical well-being in addition to providing the expected legal services. Consumer bankruptcy attorneys frequently meet with clients who are not only at their lowest points financially, but also simultaneously dealing with mental and emotional strains.

The Covid-19 pandemic has added to the mental distress of debtors. According to the National Alliance on Mental Illness, 1 in 5 Americans suffered from a mental illness prior to the pandemic—and that number has now increased to more than 2 in 5. As consumer bankruptcy filings begin to increase, attorneys in this space are bound to encounter more clients dealing with mental health struggles and should equip themselves with resources while caseloads are still manageable.

Current State of Consumer Bankruptcy

March 2021 saw a sharp increase in consumer Chapter 7 case filings of roughly 47%. And in April, for the first time this year, case filings exceeded 2020 numbers. March is typically the consumer bankruptcy “high season,” and April generally sees a noticeable, but not precipitous, decline in consumer Chapter 7 case filings. For now, the case count remains well below historic March peaks as a result of continued economic stimulus and eviction moratoria. We could, however, see a return to historical bankruptcy filing patterns with a steady uptick in bankruptcy filings as the year progresses.

A return to the familiar ebb and flow and overall increase in cases is likely a relief for practitioners, but with it will also come more of the familiar contact with financially and emotionally distressed debtors. Before the long-predicted wave of consumer bankruptcies arrives, consumer bankruptcy attorneys should give considerable thought not just to handling the influx of legal matters, but also to the inextricable emotional labor of serving a consumer client base.

Ethical Versus Moral Responsibility

When it comes to an attorney’s responsibility for the mental health of their clients, there is little guidance. Model Rule of Professional Conduct 1.14(b) provides that “[w]hen the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action…” While the Model Rule does not specifically reference mental illness, it sets a fairly high standard of substantial risk of harm before requiring lawyer intervention. Even when the clients meet that high standard, the Model Rule’s permissive “may” is far from a compulsory mandate for attorneys to act.

But while seeking mental health care for clients is not an explicit ethical requirement, with the societal push for more awareness of mental illness and mental well-being, it could be considered an implicit moral imperative.

A study conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) in 2016 revealed that adults living below the poverty line were more than twice as likely to suffer from serious mental illness than those living above the poverty line. And it should come as no surprise that Americans living below the poverty line also experience higher debt-to-income ratios and higher rates of payment delinquency—a financial state that could lead one to file bankruptcy. Additionally, the stigma of filing personal bankruptcy can itself be a source of mental and emotional distress.

What Can You Do?

Although the link between financial and mental distress is well documented, few bankruptcy courts provide any resources to address this unavoidable intersection between the bankruptcy bar and debtors suffering from mental illness or distress. The Bankruptcy Court for the Eastern District of North Carolina is a rare exception. It has a formal program connecting debtors to mental health resources and a routine practice of distributing informational pamphlets at § 341 meetings, the first meeting of creditors in a bankruptcy case.

I recently spoke with Rohan Pavuluri, co-founder and CEO of Upsolve, a nonprofit that empowers pro se Chapter 7 debtors to file their cases on their own. He said his users have tapped into a widely underutilized resource for debtors who need support during the bankruptcy process: other debtors. According to Pavuluri, approximately 1 in 10 American adults will file bankruptcy in their lifetime. Yet, the average American would have a hard time identifying a friend or family member who they know has filed for bankruptcy protection. “What is often viewed as a tool for corporations,” he said, “is viewed as a shortcoming for individuals, leaving consumer debtors feeling as if they’ve failed morally because of a narrative creditors have created for them.” Pavuluri said this informal take on group therapy could be replicated in private practice with consumer bankruptcy attorneys providing a safe space for willing clients to share their experiences.

If you do not live in a jurisdiction with readily available mental health resources and are not yet ready to create your own, there are other resources. Consider reaching out to your state’s lawyer assistance program or using the SAMHSA locator to find more information on local mental health resources for your clients. Also, maintaining a legal practice is stressful and working with debtors who are experiencing converging financial and mental health crises can be even more so, so it is of the utmost importance for you to attend to your own mental, emotional, and physical well-being. Stay Well!

Bloomberg Law subscribers can find related content on our Practical Guidance: Chapters 7, 9, 12 & 15 page, as well as our In Focus: Lawyer Well-Being page.

If you’re reading this on the Bloomberg Terminal, please run BLAW OUT<GO> in order to access the hyperlinked content, or click here to view the web version of this article.

Wake Up Call

• Sullivan & Cromwell advised AT&T Inc. on its $43 billion deal with Discovery Inc. that will create a new entertainment company. Debevoise & Plimpton advised Discovery, which also got advice from Proskauer Rose. Wachtell Lipton, Rosen & Katz advised a committee of independent directors of Discovery, while Paul, Weiss advised a Discovery shareholder. (Bloomberg News via BLAW)

• Linklaters launched a U.S. data solutions, cyber and privacy practice based in New York and its first hire is former federal prosecutor Erez Liebermann as a partner. (Linklaters)

• Covington & Burling made an unspecified pay-out to former CBS CEO Les Moonves in a settlement over alleged confidentiality breaches stemming from Covington’s work on an internal investigation for CBS into sexual misconduct allegations against Moonves, according to several reports. (American Lawyer) (CNBC) (Vanity Fair)

Read these and other legal industry stories in today’s Wake Up Call.

Wake Up Call: Six Firms Steer AT&T, Discovery Media Merger

May 18, 2021, 12:10 PM Coordinated Universal Time

In today’s column, Linklaters launched a U.S. data privacy practice with experts poached from Prudential; Covington & Burlington is reported to have paid a settlement to former CBS CEO Les Moonves for an alleged confidentiality breach; some firms are going gradual on office returns, but New York-based plaintiffs litigation firm Wigdor wants every everyone back July 6.

  • Leading off, Sullivan & Cromwell advised AT&T Inc. on its agreement to spin off its media operations in an approximately $43 billion deal with Discovery Inc. that will create a new entertainment company, combining assets ranging from CNN and HBO to HGTV and the Food Network. Debevoise & Plimpton advised Discovery, which also got advice from Proskauer Rose. Wachtell Lipton, Rosen & Katz advised a committee of independent directors of Discovery, while Paul, Weiss advised a Discovery shareholder. Fried, Frank, Harris, Shriver & Jacobson acted as counsel to LionTree LLC, financial advisor to AT&T. (Bloomberg News via BLAW)
  • Linklaters launched a U.S. data solutions, cyber and privacy practice based in New York and its first hire is former federal prosecutor Erez Liebermann as a partner. He arrives from Prudential Financial where he was chief counsel, cybersecurity and privacy, joined by counsel Andrew S. Pak, who was VP, corporate counsel in the practice and is also a former federal prosecutor. (Linklaters)
  • While several Big Law firms have announced gradual and flexible returns to the office from Covid lockdowns, New York-based plaintiffs litigation firm Wigdor told employees and lawyers it wants them back for full-time in-office work starting July 6; New York-based litigation boutique Selendy & Gay, created two years ago by former Quinn Emanuel Urquhart & Sullivan partners, announced special associate bonuses of up to $73,600, depending on seniority year, beating the Davis Polk scale by up to $9,600. (Above the Law) U.K.-based Taylor Wessing announced staff special bonuses of 5% of salary. (Legal Cheek)

Lawyers, Law Firms

  • Gibson Dunn & Crutcher and Akin Gump got hired by lenders getting ready for debt talks with private prison operator Geo Group Inc; according to several reports, Covington & Burling made an unspecified pay-out to former CBS CEO Les Moonves in a settlement over alleged confidentiality breaches stemming from Covington’s work on an internal investigation for CBS into sexual misconduct allegations against Moonves. (American Lawyer) (CNBC) (Vanity Fair) Lawyers for Rudy Giuliani are challenging the warrants used by the Manhattan U.S. Attorney’s office to raid his home and office in April. (WSJ)
  • Second Gentleman Doug Emhoff earned about $1.22 million as a partner at DLA Piper in 2020 and $181,627 from Venable, according to a report citing his income tax return. (National Law Journal)

Laterals, Moves, In-House

  • King & Spalding hired government investigations and litigation attorney Cliff Stricklin as a partner in Denver. He’s a former federal prosecutor and arrives after 12 years at Bryan Cave Leighton Paisner; DLA Piper got Baker Donelson health-care regulatory lawyer Tracy Weir as a partner in Washington; K&L Gates hired Crowell & Moring trial attorney Daniel Glassman as a partner in Orange County, Calif., in the firm’s complex commercial litigation and disputes practice. (KLGates.com)
  • Management-side worklaw firm Littler said former shareholder Lori Brown is returning as office managing shareholder in Miami and a member of the firm’s management committee. Brown was most recently CEO of ComplianceHR, a Littler joint venture with automation platform Neota Logic. CHR named its current chief marketing officer, Kimball Norup, to step up to the CEO role. (Littler.com)
  • Skadden, Arps added former IRS official David Farhat in Washington as a partner in its tax group. He specializes in transfer pricing and tax controversy; Sidley Austin brought in renewable energy tax lawyer Hagai Zaifman as a partner in New York. According to his Linkedin profile, Zaifman’s a former tax director at GE Capital and arrives most recently from White & Case. (Sidley.com)
  • CNA Insurance said former Sidley partner Susan Stone, currently top lawyer at insurance brokerage and risk management business Marsh LLC, will become its executive vice president and general counsel June 28, taking the job vacated when CNA’s previous GC, Jose Gonzalez, left for Equitable Holdings in March; Marsh McLennan also announced moves at its subsidiary, Marsh LLC; corporate field service management software provider ServiceMax hired a former senior vice president and general counsel at cybersecurity company McAfee, Nell O’Donnell, to be its new chief legal officer. (PR Newswire)

Legal Education

  • An American Bar Association body approved proposed changes to toughen law school accreditation standards that address diversity, inclusion. (ABA Journal)

To contact the correspondent on this story: Rick Mitchell in Paris at rMitchell@correspondent.bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Darren Bowman at dbowman@bloomberglaw.com

Business of Law

White & Case Wants Part-Time Return to Office in September (1)

May 17, 2021, 10:09 PM Coordinated Universal Time

White & Case is asking attorneys and staff in the U.S. to return to the office for “two or three days per week” starting in September.

The firm will support remote working through Labor Day, White & Case said in a statement Monday. “If you are able to do your job remotely, we will not ask you to return to the office until Sept. 7,” the statement said.

White & Case’s announcement comes after several other large firms asked attorneys to return to offices—in stages—in recent weeks. These include Cooley, DLA Piper, Faegre Baker Daniels, and Fish & Richardson.

Reed Smith plans a reopening that includes working in the office one day a week in June. It then plans a “soft opening” July 6, with a full reopening of its 17 domestic offices in early September. Lawyers and staff won’t need to work an exact number of days in the office though should establish a “regular presence,” the firm has said.

Nixon Peabody has said its return-to-office date in July is flexible and will be eased in over the summer.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes in Washington at jhughes@bloombergindustry.com

Plaintiffs’ Lawyer in Roundup Cases Shifts to Syngenta Herbicide

May 18, 2021, 10:15 AM Coordinated Universal Time

Aimee Wagstaff, who was selected to serve as national co-lead counsel in litigation against Bayer AG’s Roundup, is now taking on Syngenta AG and its herbicide, paraquat.

“I enjoy helping people battle the biggest corporations in the world. I enjoy the satisfaction in fighting the good fight,” said Wagstaff, partner at Andrus Wagstaff PC in Lakewood, Colo.

Aimee Wagstaff

Numerous complaints have been filed in federal district courts from California to Pennsylvania seeking damages for personal injuries from farmers’ alleged paraquat exposure. The herbicide, used in crops like corn, soy, and cotton, is “highly toxic,” according to a Syngenta fact sheet.

The U.S. Judicial Panel on Multidistrict Litigation will hold a hearing on whether to consolidate the paraquat cases May 27.

Like Roundup, which is a glyphosate-based herbicide, paraquat is a weedkiller. Though plaintiffs in the Roundup cases said the product caused cancer, the alleged injury common to all of the paraquat cases is the development of Parkinson’s disease.

Paraquat has been used for decades, but legal complaints are being filed now in part because of the disease’s late onset, Wagstaff said.

“Sometimes the link between exposure and injury takes a while to identify, and then you couple that time with a disease that can sometimes take decades to present itself,” she said.

Leading Litigator

Andrus Wagstaff was one of the first law firms involved in the Roundup multidistrict litigation. Bayer, which acquired Monsanto, agreed to pay as much as $11.6 billion to resolve about 125,000 Roundup lawsuits filed by U.S. consumers and farmers. Some of the money is slated for future claims.

“Monsanto fought us every step of the way. They didn’t concede any point at all,” Wagstaff said.

Wagstaff hadn’t been a plaintiffs’ attorney before she became a founding partner at the firm, but the work “fit my interests and my skill set completely,” she said. She was previously an associate working on corporate litigation for a large defense firm.

The majority of her work is focused on multidistrict litigation and Judicial Council Coordinated Proceedings. She has co-led four national litigations so far, according to her firm.

In 2015, she became co-lead counsel of the first majority women multidistrict litigation plaintiffs’ steering committee. The cases were brought on behalf of women who had been diagnosed with permanent injuries, cancer, and other health issues allegedly caused by a medical device used during a hysterectomy or removal of fibroids.

Judge Kathryn H. Vratil, of the U.S. District Court for the District of Kansas, appointed Wagstaff.

“It paved the way for future courts to follow that path, which has happened a few times since,” Wagstaff said.

She hopes to one day take over the firm, keeping Andrus Wagstaff’s focus and staff.

“I have a very entrepreneurial spirit,” she said.

Syngenta Defends Paraquat

“Syngenta has great sympathy for the health issues faced by the Plaintiffs and others suffering from the debilitating effects of Parkinson’s disease. We care deeply about the health and well-being of farmers and are dedicated to providing them with safe and effective products,” Saswato Das, a spokesperson for the company, said in a statement.

“There is no credible evidence that Paraquat, which has been widely used for more than 55 years, causes Parkinson’s disease. No peer reviewed study, including the largest study which involved 38,000 farmers, has ever concluded Paraquat causes Parkinson’s disease,” he said.

The Environmental Protection Agency “and other government authorities have extensively analyzed this issue and similarly found no evidence that Paraquat causes Parkinson’s disease. The facts simply do not support the Plaintiffs’ allegations, and we intend to defend this product and our legal position vigorously in court,” Das said.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

Law Firms

Cooley Bets on the Midwest Venture Scene with New Chicago Office

May 17, 2021, 7:53 PM Coordinated Universal Time

Cooley’s official launch of a 10-partner Chicago outpost on Monday is a culmination of what firm vice chair Mike Lincoln said was a decade of scoping out the Midwestern venture capital scene, which he believes can support the firm’s full-service office ambitions.

Bloomberg Law reported last month Cooley was poised to open in Chicago with former Winston & Strawn partner Rick Ginsberg and former DLA Piper partner Greg Grossman. The firm said the office will also include former Latham & Watkins partner Laurie Bauer.

Those lawyers represent venture capital firms and emerging companies, a practice that has built Cooley’s national brand and helped it become one of the fastest-growing law firms in the past decade with revenue more than tripling since 2010. Cooley has become the first among a small group of Big Law firms that made their names representing startups in Silicon Valley to put down stakes in Chicago.

Some competitors have privately questioned whether Chicago’s start-up scene is mature enough to reward Cooley for its investment. But Lincoln said in an interview the Midwest has Cooley’s stamp of approval, benefiting recently from the buildup of software engineers and academic institutions that are launching more important companies.

“The time is ripe for taking advantage of that trend,” Lincoln said. “For us, as long as we could identify the right team, which we’ve done, we viewed it as a no-brainer to make this move.”

Market Movers

Chicago’s venture capital investments totaled $2.8 billion last year, up more than 21% from a year ago, according to Pitchbook data. Minneapolis, another Midwest city Cooley partners mentioned as part of their focus, saw $1.6 billion in deals, which was nearly 30% higher than 2019.

Still, Pitchbook says around 80% of venture capital fundraising is consolidated in main tech hubs such as the Bay Area, Boston, and New York—all places Cooley already has large offices.

Cooley’s new partners already have connections to some of the largest venture capital firms and investors in Chicago.

Ginsberg has been a lawyer for Eric Lefkofsky, the billionaire entrepreneur who founded Chicago-based coupon site Groupon Inc., medical data startup Tempus Labs Inc., and third-party logistics provider Echo Global Inc. Grossman has represented a number of prominent Midwest-based venture capital groups, including Pritzker Group Venture Capital, Baird Capital, Lightbank, and Chicago Ventures. And Bauer, who led Latham’s local emerging companies practice is on the board of directors for 1871, a local startup hub.

“Rick, Greg, and I have been doing this here and we are thrilled that Cooley recognized the thing we’d recognized, which is that there are great companies and investors here and that a market already exists,” Bauer said in an interview. “And for Cooley to come to town and be additive to that was an opportunity that none of us could turn down.”

Beyond Startups

Ginsberg and Grossman said that while their group will focus on emerging companies work, the firm plans to service a full range of companies out of Chicago. They said the firm also intends to add litigators to its Chicago office soon.

“Cooley has the sophistication and capability to take companies public and represent massive sophisticated public companies in all of their work,” Ginsburg said. “A lot of our peer firms tend to be more on one side or the other and not combine both early growth stage work and post-IPO work under one roof.”

Also joining from DLA Piper are M&A partner Erin Kirchner and employment partner Ryan Vann.

Christina Roupas and Courtney Tygesson, who specialize in capital markets and public companies, are joining from Winston alongside fund formation partner Zach Robert and New York-based executive compensation and benefits partner Nyron Persaud.

The 10th partner is Yvan-Claude Pierre, a corporate and capital markets attorney who joined Cooley in 2015 from Reed Smith. Pierre led the expansion effort into Chicago and will split his time between Chicago and New York.

Cooley has been in expansion mode this year following a strong 2020 when the firm’s revenue grew nearly 17% to $1.55 billion and its profits per equity partner rose by more than 25% to $3.18 million, according to data from The American Lawyer. Lincoln said the firm already has a base of Midwest clients.

“They already are doing a huge amount of business without even being here,” said Kay Hoppe, a veteran legal recruiter in Chicago. “And it’s not just venture. It’s technology, life sciences, and all the rust belt companies that are becoming tech companies. Anyone who underestimates this opening is missing the point.”

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

Akin Gump Adds Second Pair of Thompson & Knight Partners (1)

May 17, 2021, 5:53 PM Coordinated Universal Time

Akin Gump Strauss Hauer & Feld is bringing on another pair of corporate partners from Thompson & Knight as it continues its expansion in energy transactional work in Texas.

Jesse Betts and Cole Bredthauer are joining Akin Gump as partners in its corporate transactional practice in Dallas and Fort Worth, respectively.

Their hires follow Akin Gump’s additions last month of Wesley Williams, former leader of Thompson & Knight’s corporate and securities practice, and Jessica Hammons in Dallas and Fort Worth. Williams now serves as co-head of Akin Gump’s energy team.

Last month Dallas-based Thompson & Knight said that it was in merger talks with Florida-founded Holland & Knight for a tie-up that would create a nearly 1,600 lawyer firm across 30 offices. The combination is expected to be completed this summer and would create one of the largest firms in the U.S.

Betts, who first joined Thompson & Knight in 2006, works with public and private companies, private equity funds and their portfolio companies as well as private equity-backed management teams in a array of corporate and securities matters, a majority of which are in the energy field, such as upstream, midstream and related water logistics businesses.

Bredthauer, who served as leader of Thompson & Knight’s Fort Worth office, focuses on oil and gas transactions with an emphasis on acquisitions and dispositions of E&P and midstream assets and companies.

There’s been a tremendous backlog in M&A activity throughout the coronavirus pandemic, Betts said in an interview, and there’s a lot of interest from current and prospective clients in deal-making both in the energy industry and outside.

“With the tsunami of M&A activity on the horizon, Akin was really a great fit given their great expertise and deep bench and particularly the expertise in the energy industry,” he said.

As the oil and gas sectors are primed for consolidation, Betts and Bredthauer “possess the skills that our clients will truly appreciate,” said John Goodgame, co-head of Akin Gump’s firmwide corporate practice, in a statement.

Akin Gump, which has expanded from its Texas roots to employ more than 900 lawyers worldwide, has lately made a number of lateral hires in the state where it was founded.

The firm has brought on Haynes & Boone’s Ryan Cox and Eric Williams in Dallas. Cox served as co-head of Haynes & Boone’s capital markets and securities practice, while Williams was head of its M&A practice. The firm also hired Kirkland & Ellis debt finance partner Chad Nichols in Houston.

Betts and Bredthauer are the latest departures from Thompson & Knight since the firm announced its merger talks, though they both said it played no role in their decision to leave the firm. Winston & Strawn last week added capital markets duo Douglas Lionberger and James Brown in Houston.

To contact the reporter on this story: Meghan Tribe in New York at mtribe@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

Paul, Weiss Advises KKR on Majority Stake Buy in ERM Consultancy

May 18, 2021, 10:56 AM Coordinated Universal Time

Paul, Weiss said it advised KKR & Co. Inc. on its agreement to acquire a controlling stake in U.K.-based consultancy ERM Group Inc.

The private equity firm is acquiring its stake in from Canada-based OMERS Private Equity and Alberta Investment Management Corp., which invested in ERM in 2015. Allen & Overy and Ropes & Gray advised Alberta Investment Management.

ERM’s current management team and partners will remain minority investors, according to a statement. No financial terms were disclosed for the transaction, expected to close in the third quarter. Bloomberg News, citing people familiar with the matter, reported the deal values ERM at about $2.7 billion, including debt.

ERM says its over 5,500 partners and employees across over 150 offices in more than 40 countries advise on challenges in environmental health, safety, risk and social matters. Its clients include companies in mining, power, chemical, pharmaceutical and other sectors.

“This long-term partnership with KKR will allow us to expand and accelerate our client impact, and bring new capabilities and technologies to the business of sustainability,” said ERM CEO Keryn James.

To contact the correspondent on this story: Rick Mitchell in Paris at rmitchell@correspondent.bloomberglaw.com
To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes in Washington at jhughes@bloombergindustry.com

In-House

Canadian Pot Producer Cronos Adds Avon Legal Chief (Correct)

May 18, 2021, 9:31 AM Coordinated Universal Time

Cronos Group Inc., a Canadian pot producer partially owned by cigarette maker Altria Group Inc., has hired a Federal Trade Commission expert as legalized weed continues to make inroads in the U.S.

Thomas Cohn, who spent the past year as general counsel for privately held consumer products company Avon Co. in New York, confirmed in an email to Bloomberg Law that he recently joined Cronos as head of regulatory and product.

Cronos sought FTC and Food and Drug Administration expertise for “building disruptive intellectual property by advancing cannabis research, technology, and product development,” according to an online job posting by the Toronto-based company for a head of regulatory affairs, a title Cohn lists on his LinkedIn profile.

In Cohn, Cronos gets a lawyer well-versed in the federal and state claims substantiation protocols required of consumer products companies that lean on advertising and marketing campaigns to expand product lines.

Cronos didn’t respond to a request for comment about Cohn’s new role. Nor did Avon, when asked who has been named to succeed him as its top in-house lawyer.

Avon, which last year completed its $2 billion sale to Brazil’s Natura & Co. Holding SA, initially hired Cohn in 2016 as a director and senior counsel for sales, marketing, and government affairs.

Cohn previously worked at beauty products company Atlantic Coast Brands and vitamin manufacturer Nature’s Bounty Co., in-house jobs he took after serving as a partner at now-defunct LeClairRyan and of counsel at Venable.

Before that, Cohn spent a dozen years at the FTC, where he rose to the level of regional director.

Cohn said he now reports to Xiuming Shum, a former Sullivan & Cromwell associate who has spent nearly the past four years as executive vice president for legal and regulatory affairs at Cronos. The company’s CEO until last September was Michael Gorenstein, another former corporate lawyer from Sullivan & Cromwell who remains its executive chairman.

Gorenstein, who spent over four years as Cronos’ CEO, was head of the company when it became the first Canadian pot producer to be listed on the Nasdaq in 2018. In an interview that year with Bloomberg News, Gorenstein spoke about the $1.8 billion investment that Cronos received from Altria, the parent company of Philip Morris USA and maker of cigarette brands like Marlboro.

Since then, the marijuana market has continue to grow, with Canadian cannabis companies looking south and other cigarette giants like Philip Morris International Inc. and British American Tobacco PLC evaluating their legal weed investments, according to an April report by Bloomberg News.

Murray Garnick, Altria’s general counsel, is a member of the board at Cronos. Gorenstein owns nearly $9.3 million in Cronos stock, according to Bloomberg data.

Gorenstein stepped down as CEO last year as Cronos named his replacement in Kurt Schmidt, a former executive at consumer packaged goods companies Blue Buffalo Co. Ltd., Kraft Foods Inc., and Nestlé SA.

Cronos disclosed in its most recent proxy statement filed in late April that Shum, its legal chief, received roughly $841,100 in total compensation during fiscal 2020. The company noted that in “order to retain executive talent” it gave Shum in November a one-time retention award of Cronos stock valued at about $68,000.

Shum was credited by Cronos in its proxy for leading its legal and regulatory affairs efforts and “overseeing the development and implementation of an integrated global quality management system and a global compliance program.” Cronos said Shum supported the company’s brand and product launches in the U.S., Israel, and Canada by successfully obtaining regulatory licenses for sales and exports.

Within the past year, Cronos has also hired former Sullivan & Cromwell associate Michael Akavan as head of litigation and Charles Goldschmid, a global ethics and compliance lawyer at LVMH, as its head of business conduct and ethics.

To contact the reporter on this story: Brian Baxter in New York at bbaxter@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes in Washington at jhughes@bloombergindustry.com

Ex-TriMas Legal Boss Joins Michigan Truck Maker Shyft Group (1)

May 17, 2021, 5:16 PM Coordinated Universal Time

TriMas Corp.’s former general counsel Joshua Sherbin has joined specialty vehicle producer The Shyft Group Inc. as chief legal officer and chief compliance officer less than a week after officially leaving his previous job.

Sherbin succeeds Shyft’s former CLO Ryan Roney, who held the Charlotte, Mich.-based company’s top legal position since 2018. Sherbin spent 16 years with TriMas, based in Bloomfield Hills, Mich., before leaving on May 11.

“It’s a big win to add Josh to our leadership team, and we look forward to him making an immediate impact based on his decades of global experience in the automotive and manufacturing industries, and his roles supporting public company boards and CEOs,” said Shyft Group president and CEO Daryl Adams in a Monday statement.

Shyft manufactures custom vehicles and operates the brands Spartan RV Chassis, Royal Truck Body, and DuraMag, among others. Increased e-commerce over the last year has led to multiple record quarters for Shyft as shipping companies demand more custom delivery trucks.

“I saw Shyft as a great opportunity to join a company that is at a very dynamic point in its growth and has proven to be a real industry leader in the niche that it serves,” Sherbin told Bloomberg Law.

Before Sherbin’s time with TriMas, he worked for French automaker Valeo and consultancy Kelly Services Inc. He began his career as an associate with law firm Butzel Long.

Last week, TriMas said it had promoted its deputy general counsel, Jodi Robin, to general counsel beginning on May 6. She joined TriMas in 2010 after four years as an associate with Reed Smith, according to her LinkedIn profile. TriMas also hired former DTE Energy lawyer Dana Pierre-Louis as associate general counsel.

Profits and Problems

Shyft reported a profit of $11.6 million for the first quarter of 2020, up from $7.9 million the year before, as the pandemic increased demand for custom vehicles from shipping and delivery companies.

“We are excited with the strong start to the year, as parcel delivery and luxury motor coach continues to exceed our expectations—fueled by innovative products designed to meet our customers’ needs—and ultimately resulted in our backlog increasing over 90% to a record $667 million,” Adams said in the company’s May 6 earnings report.

The Occupational Safety and Health Administration cited Shyft earlier this year for workplace safety violations following an automotive factory inspection. The factory, located in Waterville, Maine, produced aluminum truck bodies for the brand DuraMag, acquired by Shyft last fall.

OSHA said the factory lacked proper fall prevention and hearing protection safeguards and proposed a $393,992 fine. Shyft is now working with OSHA to fix the issues.

“DuraMag represents a recent acquisition for The Shyft Group, and integration actions are underway to ensure this facility meets the high manufacturing standards we have set for our facilities worldwide,” Samara Hamilton, Shyft’s vice president of marketing and communications, told Bloomberg Law last month.

To contact the reporter on this story: Ruiqi Chen in Washington, D.C. at rchen@bloombergindustry.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes in Washington at jhughes@bloombergindustry.com

Legal Tech

Legal Tech Company’s Computer Fraud Case Axed Over Jurisdiction

May 17, 2021, 3:54 PM Coordinated Universal Time

A legal technology company lost its chance to pursue a Computer Fraud and Abuse Act lawsuit it filed against one of its business partners in California after a federal judge there ruled the company didn’t have personal jurisdiction in the state.

Prevail Legal Inc. failed to allege how defendant ShakaCode LLC and manager Justin Gordon acted illegally in California, Judge Beth Labson Freeman wrote in an order filed May 14 in the U.S. District Court for the Northern District of California.

Prevail’s counsel didn’t immediately respond to a request for comment.

Prevail, a remote deposition and transcription platform, hired ShakaCode ...

Judiciary

Colorado Judge Censured, Retires After Second DUI Arrest

May 17, 2021, 5:39 PM Coordinated Universal Time

A Colorado judge arrested twice for driving under the influence of alcohol agreed to retire and was publicly censured.

A public censure is the “appropriate” sanction “in light of the nature and gravity of the underlying offenses,” the Colorado Supreme Court said May 13.

The court also accepted Debra Gunkel’s retirement as a Baca County Court judge.

Gunkel pleaded guilty to DUI and careless driving in 2018. She got probation and was required to have an ignition interlock device to monitor her blood alcohol content, the court said in citing stipulated facts.

She was arrested again for DUI in 2019 ...

Law Schools

Supreme Court Declines Female Law Professor’s Pay Bias Suit

May 17, 2021, 1:41 PM Coordinated Universal Time

The U.S. Supreme Court Monday decided against reviewing a Florida A&M University law professor’s lawsuit alleging that a pay inequity study showed she was subjected to sex discrimination, and also retaliated against for previously suing for pay bias.

The pay study was finalized a few weeks after a jury rejected Jennifer Smith’s first lawsuit. The jury credited Smith’s evidence that she was paid less than similar male professors but found she didn’t prove the difference was because of her sex.

Smith claimed in the new suit that the study confirmed her sex really was the cause as it led to her and 11 other professors receiving one-time salary adjustments.

The U.S. Court of Appeals for the Eleventh Circuit , however, affirmed a lower court’s grant of summary judgment to Florida A&M.

The new suit, under the Equal Pay Act and Title VII of the 1964 Civil Rights, was barred by collateral estoppel, the appeals court said Oct. 8. It was based on alleged discrimination that was considered and rejected by the jury in the first suit, which was presented with all the same pay data the university later used in the study, the court said.

The deans and other personnel who reviewed the study and made the salary adjustments also all testified their intent wasn’t to eliminate sex-based pay bias, it said.

The Eleventh Circuit failed to follow its own precedent and broke with the Fourth, Seventh, and Eighth circuits in reaching its decision, Smith said in urging the justices to take up her case.

The general rule is that a salary adjustment formula derived from specific criteria must be applied evenly across the sexes, she said. That didn’t happen in her case, according to Smith.

The Eleventh Circuit’s ruling “also established a novel, untested ‘outlier’ defense to circumvent pay parity,” and misapplied the collateral estoppel doctrine, she said.

The university didn’t file a brief opposing Supreme Court review.

Smith of Windermere, Fla., represented herself.

The case is Smith v. Fla. A&M Univ. Bd. of Trs., U.S., No. 20-1231, review denied 5/17/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

Also in the News

Insights

Shuttering Dakota Access Will Impact More Than a Pipeline

May 18, 2021, 8:01 AM Coordinated Universal Time

After more than four years of successful operation, the Dakota Access Pipeline (DAPL) is again in limbo as a U.S. district court decides whether the line will be allowed to operate while an additional environmental study is completed. A lot hangs in the balance—for our country’s energy security, economy and, most critically, the integrity of our regulatory system.

The pipeline resurfaced in headlines last summer after U.S. District Judge James Boasberg vacated the pipeline’s easement for a water crossing at Lake Oahe. Boasberg reasoned that the U.S. Army Corps of Engineers should have conducted a more in-depth environmental review, known as an environmental impact statement (EIS), for the site and ordered the pipeline to be shut down and emptied until the study was completed.

The Corps appealed the decision, and an appellate court reversed the shutdown order, citing a lack of “necessary findings.” The appellate court stopped short, however, of upholding the federal easement, putting the fate of the pipeline back in the lower court’s jurisdiction.

Corps Says Pipeline Can Operate During Environmental Review

The U.S. Army Corps of Engineers has declined to independently halt the pipeline while the latest environmental review is completed. The analysis, now underway, is expected to take until early next year to complete. Which means Boasberg will decide whether the pipeline will be allowed to continue to run in the interim. His ruling is expected as early as this week.

The issue reveals the fine line between judicial oversight and regulation from the bench. Our nation’s experts, the engineers at the Corps, have made it clear that DAPL should be allowed to continue operations. But will Boasberg step over the Corps’ regulatory authority to decide whether the pipeline can safely operate until the study is completed?

By precedent and statute, the Corps—an extension of the Executive Branch— has the authority to decide whether the pipeline should continue to operate. There are many examples, from immigration to traffic laws, in which such discretion is held at this level. In fact, a lawsuit filed by North Dakota contends that the Corps did not go far enough to assert its authority. Maybe so. But what’s certain is that the Corps’ support for keeping the pipeline running is not arbitrary.

The Corps is an organization of career, non-partisan professionals. These men and women are tasked with assessing the impact of major infrastructure projects and ensuring the safety of our communities and the environment. Their decisions are based on science and evidence, not political influence.

That the Corps ruled against shutting down the pipeline reiterates its safety, which is further proven by nearly four years of operations without a single major incident. The omitted study was a process oversight, not a safety hazard, for a 1,000-foot section representing less than 0.002% of the total pipeline.

The Justice Department May 3 reaffirmed the Corps’ decision. In a brief to Boasberg, the agency noted: “It is possible that … the Corps would find new information, but to date the Corps is not aware of information that would cause it to evaluate the injunction factors differently than in its previous filing.” In other words, there is no reason to believe the pipeline cannot operate safely while the new study is conducted.

Unfortunately, there is a great deal of political pressure to shut the pipeline. The pipeline has become a lightning rod for activists intent on keeping fossil fuels in the ground, with opponents too often seeking to leverage the judicial system to achieve their goal.

But that’s not what this issue is about. It is a matter of ensuring the integrity of our regulatory system. When a developer follows all the rules, receives the necessary permits, and has proven their ability to operate safely, they should be allowed to continue doing so.

Consequences of Decision

A lot hangs in the balance. DAPL moves over a million barrels of crude oil per day. Those shipments would have to be moved by rail or truck if the pipeline were shut down, which have much less reliable safety records and produce significantly higher emissions. The resulting backlog would cost producers up to $5.4 billion this year, up to $1.4 billion in lost tax revenue for local and state governments, and eliminate as many as 24,000 jobs.

This decision has broad impacts. Mark Fox, tribal chairman of the Mandan, Hidatsa and Arikara Nation, cautioned the court that if DAPL is shutdown, “much of our Reservation’s production will be difficult to move to market and future production will be sharply curtailed.”

The tribe relies on the pipeline to move about 60% of its oil production to markets. Further, more than 80% of the MHA Nation’s budget is made up of oil and gas royalties and tax revenues. The MHA Nation estimates a shutdown would incur losses of over $160 million a year.

The U.S. regulatory process is rigorous. It is entrusted to professionals who put their task of protecting our communities ahead of ideology. It benefits from checks and balances offered by the courts. But it is jeopardized when jurisprudence crosses the line and prematurely usurps regulatory oversight. For that reason, it’s critical that Boasberg stand by the Corps’ decision to keep DAPL running.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Tom Magness is a strategic adviser to the Grow America’s Infrastructure Now (GAIN). He formerly served as a commander in the U.S. Army Corps of Engineers.

A Promising Path to Increase Access to Justice

May 18, 2021, 8:01 AM Coordinated Universal Time

How can we increase access to justice? The problem seems intractable but urgent. Wealthy individuals and big businesses can afford representation; some of our poorest citizens can get help through legal aid. Everyone else is on their own.

There are entire areas of law where people of modest means are largely unserved by lawyers. Imagine going through a divorce, battling for custody, appearing in court—all without help. The same goes for fighting a denial of unemployment or disability benefits, applying for asylum, responding to an eviction notice, or negotiating with a debt collector.

Positive Solution

A promising solution is to create the equivalent of nurse practitioners in the legal profession: trained professionals to handle less complex matters. In medicine, the introduction of nurse practitioners expanded access and lowered cost. We can do the same in law, and many states are considering doing just that.

The model has been successful elsewhere. In Ontario, “independent paralegals” are well-established. Lay advocates in the U.S. handle cases before the Social Security Administration and immigration courts. And research from England and elsewhere shows that specialization and experience (not being a lawyer) predicts success in representation.

In 2012, Washington state launched an innovative program to create “Limited License Legal Technicians” (LLLTs) to help people with family law issues. After completing a specialized family law curriculum and 1,500 hours of supervised training, legal technicians guide average people through the complex family law system at more affordable rates than lawyers. Experienced paralegals could get licensed more quickly.

In a puzzling decision, a divided Washington Supreme Court elected to sunset the program last summer, just as it was demonstrating real success. The 46 licensed legal technicians can continue to practice, but no new legal technicians will be licensed. As it weighs final rule changes to the program, the court has an opportunity to reconsider the decision. And they should.

A Successful Example

In a new white paper from the Stanford Center on the Legal Profession that we co-authored, we find that the program delivers real access to justice for people of modest means.

For example, people who spent years in abusive marriages while struggling to finalize divorces on their own got resolution within months after hiring a legal technician. One technician in eastern Washington devotes the vast majority of her practice to Spanish-speaking clients who have no other real option for help. A University of Washington professor who taught both future attorneys and legal technicians told us that LLLTs—whose curriculum focuses on family law—were better prepared than law school graduates to handle such issues in practice.

Judges find legal technicians save them time and hassle because they know what information the judge needs, and can submit detailed paperwork and proposed orders in advance of a hearing or trial. One judge estimated it cut the length of trial by a third. Some lawyers have hired legal technicians to bring in business they would have otherwise turned away. One lawyer referred to it as an “absolutely symbiotic” relationship.

Did Politics Play Role in Decision to Discontinue?

So given the program’s successes, how did a majority of the Washington Supreme Court get this so wrong? The court made its decision after the treasurer for the Washington State Bar Association asked the court to end the program because it was “tremendously unfair” that Washington lawyers had to pay for administering the program. The “unfair” cost? Just $7 per lawyer per year to provide access to justice for people of modest means, and less than 1% of the bar’s overall budget.

Just a few weeks later, and prior to the completion of a National Center for State Courts evaluation of the program, the court voted to stop licensing new technicians. As Justice Barbara A. Madsen pointed out in her dissent, this occurred without “a single meeting, without question or comment from LLLT license holders, legal practitioners, or the public at large.”

A significant problem in Washington and other states is political and structural. The supreme court justices in Washington are elected, interact extensively with lawyers, and depend on lawyers for campaign contributions.

Some lawyers have expressed concern that legal technicians will encroach on their territory with lower-cost alternatives, ignoring that lawyers and legal technicians serve vastly different populations. And the bar’s role as both a trade association and a regulatory agency means lawyers hold undue influence over who can provide legal services.

So it is no surprise that the court prioritized the interests of lawyers over consumers, leaving the average citizen unheard and unrepresented. The question now is whether judicial leaders in Washington, like Chief Justice Steve González and Justice Mary Yu, will have the courage and independence of mind to reconsider and support access to justice for Washington citizens, even if that upsets some lawyers.

Regardless, other states should be confident. The model works, at least in family law, an area where people face critical legal issues and are able to spend some money on getting help, but can’t afford a lawyer. The use of nurse practitioner-style professionals for law can increase access to justice for people of modest means, and improve the functioning of our legal system.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Jason Solomon is the executive director of the Stanford Center on the Legal Profession and a lecturer in law at Stanford Law School. He previously served as the chief legal officer of the education nonprofit Summit Learning, and as a law professor at William and Mary and the University of Georgia.

Noelle Smith is a third-year law student at Stanford Law School, where she is a senior editor on the law review and a research assistant at the Center on the Legal Profession.

‘Negative Options’ in Consumer Subscriptions Are Risky

May 18, 2021, 8:00 AM Coordinated Universal Time

Subscriptions and automatic renewals are quickly proving to be one of the most important consumer protection law issues of the year. These types of transactions have emerged as a leading area of risk for consumer-facing businesses, including many businesses that have not historically focused compliance efforts on these issues.

Federal and state laws have long imposed limitations on commercial transactions in which sellers treat a customer’s failure to take an affirmative action, either to reject an offer or cancel an agreement, as assent to be charged for goods or services. This category of transactions is known as “negative options,” and can include subscriptions, automatic renewals, membership clubs, trial offers that result in automatic payments, and more. In recent months, however, the legal risks related to negative options have increased significantly.

One trend underpinning this dynamic is the increasing embrace by consumers of subscription-based spending on a widening variety of products and services. Subscriptions are no longer the realm of fitness centers and streaming video services. Mobile apps, cars, massages, and just about everything else a consumer desires can now be had on a subscription basis. According to a recent study, 71% of adults across 12 countries have subscription services, up from 53% just a few years earlier.

The plaintiffs’ bar has clearly noticed this, and recent court decisions suggest that a wide range of companies could soon find themselves facing dramatically increased class action risk in this area.

Class Action, Enforcement Risks

For example, in February a federal district court held that California’s automatic renewal law could apply to a national retailer’s loyalty program, which automatically renewed. Although the defendant in this case argued that its loyalty program was not a “subscription,” and therefore outside the ambit of the state statute, the court defined “subscription” broadly to mean “an arrangement for providing, receiving, or making use of something of a continuing or periodic nature on a prepayment plan.”

This is significant because it suggests that California’s automatic renewal law applies to a wide range of products and services beyond just traditional subscriptions.

Federal and state government enforcers also appear to be ramping up enforcement in this area. Attorneys general in Colorado, Washington, and elsewhere have recently concluded significant enforcement related to automatic renewals.

Moreover, this comes on the heels of the FTC’s announcement in September 2020 that it reached a $10 million settlement with an online learning company that allegedly violated the Restore Online Shoppers’ Confidence Act (ROSCA). According to the FTC, the company failed to clearly disclose that memberships would automatically renew, charging consumers’ credit cards without their express authorization, and making it difficult for consumers to stop those recurrent charges.

State legislatures are also dialing up the pressure. New York enacted a new automatic renewal law, effective Feb. 9, that adds considerable requirements for companies selling products or services on a subscription-like basis, including automatic renewal plans. And New York is far from alone. So far this year, legislation has been introduced in at least 12 states to enact new automatic renewal laws or strengthen existing restrictions.

Given these developments, corporate counsel should carefully evaluate their exposure to negative option laws. In doing so, it is important to look beyond traditional “subscriptions,” and consider whether any of an organization’s transactions could be construed as a negative option. For all negative option transactions, counsel should carefully evaluate compliance in all relevant jurisdictions.

To that end, do not assume that existing consents are sufficient—changes in case law and statutes make compliance in this area a moving target. The data show that subscription-based models can be powerful growth drivers, but they also present increasing risk.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Brian J. Boyle is a partner in McDermott Will & Emery’s Antitrust group. He advises clients on consumer protection and antitrust law and is experienced in complex litigation and investigations, compliance, and government strategies.

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