READ THAT BACK: Statistics, Talc, and Friends-of-Friends


It is a sign of our times that despite an IED explosion in the London Underground (and Trump’s “unhelpful” tweets regarding it) and the first stumbling steps toward a legislative solution for the DACA issue, last week felt relatively calm. But with the Supreme Court’s new term rapidly barreling toward us, that seems unlikely to last long—at least around here!

Play Ball!: It’s getting on toward that time of year when court watchers start making analogies to baseball’s opening day (subscription required), apparently, even though it’s closer to the end of the baseball season and it’s football and hockey that are starting up. Look, we do courts, not sports. But baseball statistics can be comforting or revealing, and court watchers can hunger for statistics in much the same way.

It Sounds Like a Joke: What do libertarian groups, journalists, tech companies, and the former proprietor of a cash-only Mexican restaurant have in common? You might think it would be a snappy punchline, and you may be right! But if you are, the Court Reporter hasn’t heard it yet. What we do know they have in common, though, is their position on mobile phone data and the third party doctrine.

Travel Bananarama: It has been a bit of a cruel summer for the on-again off-again to-whom-does-it-apply travel ban, but there’s been a lot of activity about it at the Supreme Court—and a corresponding amount of coverage. (Although believe it or not, there has been more activity in Masterpiece Cakeshop—we’re only halfway through amicus briefing—and that hasn’t even been scheduled yet.)

It’s Everywhere: Once, a long time ago, the Court Reporter was living in a building that was undergoing asbestos abatement. It was kind of like living in that scene in E.T. where they’ve quarantined the house and everyone is running around in environment suits. But with good reason: Asbestos is bad, and it causes bad diseases. Trial begins today (subscription required) in a case against Johnson & Johnson alleging that asbestos in their talc products (a certain kind of asbestos apparently occurs naturally in talc mines; there’d be no reason to add flame retardant asbestos to non-flammable talc) has caused those diseases. Some say the science is sketchy; others think it could be a big problem for the medical giant, as several other talc makers have been forced to pay multimillion dollar judgments.

ICYMI:

  • LGBT rights hero Edith Windsor dies.
  • Fiddy sues his former business advisors for allegedly giving bad advice in his bankruptcy. Does this mean we’ll be seeing him inamillioncommercialssoon? (Y’all, that’s FIVE different links. Apparently, Hammer is 2 Legit 2 Quit making commercials.)
  • A Colorado auto repair shop wins points for truth in advertising—but is still facing charges.
  • Fashion choices can have professional consequences—at least for one judge in Canada. One does rather wonder what kind of point he was trying to make.

And Now…With Friends Like These: Bloomberg raised some eyebrows this week with a three-part series pulling back the curtain on some sketchy (at the very least) practices involving amicus briefs and the people who file them. [Part I; Part II; Part III] But before we get into the details, we need to address the story’s lead:

Chuck Cooper, one of Washington’s top litigators, gives each new lawyer in his firm a full-size broadsword, a reminder of his motto: “Victory or death.”

By the power of Grayskull! This is easily the most jaw-dropping revelation among many jaw-dropping revelations in this story. Law firms are known for their “There can be only one” mentality, but this seems like a bit much. The Court Reporter remembers reporting to work at a law firm on the first day and being handed a laptop, a stack of legal pads, and a book of convenient excuses to give friends and loved ones as to why you would no longer be able to spend time with them. I suppose it takes a Braveheart to be handed an actual freaking sword and come away thinking, “Yeah, this should go well.”

OK, now back to the actual story: It turns out that the ever-increasing stacks of amicus briefs submitted in the Supreme Court and other appeals courts aren’t always prompted by a sense of civic responsibility, or even good old-fashioned self-interest. No, at least some of the briefs are planted by interested parties and filed by third-parties to hide their true origin. The examples in the story include shareholder litigation involving mortgage giants Fannie Mae and Freddie Mac—spearheaded by wealthy investors, and litigation over tax liabilities related to the estate of J. Howard Marshall II, the late husband of Playboy Playmate and “face” of Guess Jeans, Anna Nicole Smith. Here are some highlights:

 

  • “Lawyers at Cooper & Kirk PLLC wrote a legal brief to defuse the threat [from an unrelated case in another court], then recruited another attorney to submit it in her name—effectively hiding their involvement.”
  • That lawyer, Rebecca LeGrand was affiliated with the National Black Chamber of Commerce and said in an interview that “the document was actually written by lawyers at Cooper & Kirk. She said she signed and filed it as a courtesy to a fellow lawyer who wasn’t authorized to practice at the court.”
  • “Presented with information showing lawyers there are authorized to appear, she changed her account. She said in a subsequent email that her memory had been ‘garbled’ and that it was actually the partners at her own firm who requested her help.”
  • Re: the Marshall case and brief submitted in the 5th Circuit: “When the heirs of a Texas oil billionaire went to court in a $75 million tax dispute, they got help from an unlikely ally: Barber-Scotia College, the nation’s first institution of higher learning for black women.”
  • School officials seemed to know nothing about the case. “‘I have a feeling someone forged whatever it was,’ said David Olah, Barber-Scotia’s president, echoing the school’s outside lawyer and its former executive chairman.”

The story weaves a web of Washington insiders, including consulting firm DCI Group LLC—“founded in 1996 by three tobacco-industry operatives who honed their skills creating smokers’ rights groups”—and the founder and CEO of the National Black Chamber of Commerce, Harry Alford. It’s worth a full read for anyone who follows the courts.