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Daily Dicta: Score One for the Conservative Establishment

For an unconventional president, Donald Trump has now made two conventional Supreme Court picks—respected, well-qualified, conservative judges. It’s easy to imagine almost any Republican leader nominating (or at least shortlisting) Brett Kavanaugh. Considering some of Trump’s other nominees (White House physician Ronny Jackson to lead the VA comes to mind), it’s a notable feat. My colleague Tony Mauro, who covers the Supreme Court, has produced an excellent package of stories on Kavanaugh. Tony describes the 53-year-old judge as “a stalwart conservative with deep Washington roots who has questioned the power of federal agencies and ruled in support of broader gun rights.” He called him a “hard-to-defeat nominee whose Ivy League credentials are similar to those of Neil Gorsuch, the president’s first Supreme Court nominee.” Tony also noted that “While a committed conservative, Kavanaugh has often spoken of the need for impartiality in judging, and he has collegial relationships with liberal and conservative judges alike.” On Twitter, appellate lawyers followed the “If-you-can’t-say-anything-nice,-don’t-say-anything-at-all” rule. Why openly attack a judge you’re likely to appear before? Among Kavanaugh’s fans is Williams & Connolly’s Kannon Shanmugam, who promptly tweeted, “Congratulations to Judge Kavanaugh on his nomination to the Supreme Court. I’m not impartial on this one, because the Judge recruited me to my first job in practice almost 20 years ago and I’ve known him ever since. I’m so thrilled for him and his family.” Hogan Lovells rising appellate star Sean Marotta wrote, “Brett Kavanaugh will be an excellent next Associate Justice of the Supreme Court of the United States.” Other legal luminaries had high praise as well. “Brett Kavanaugh is immensely qualified for the Supreme Court: an outstanding lawyer and judge; a great teacher and serious scholar of the law; and a generous, honorable, kind person,” wrote Harvard Law’s Jack Goldsmith. Bank of America General Counsel David Leitch tweeted, “Had the privilege of working closely with Brett Kavanaugh (and Ashley) for 2+ years in the White House. They’re wonderful people, and he’s a first rate legal mind who should be quickly confirmed and will serve with honor and distinction for years to come.” But Hogan’s Neal Katyal, who wrote a New York Times op ed robustly supporting Gorsuch (and got grief for it in some quarters), didn’t weigh in on Kavanaugh’s nomination on Twitter, at least not initially. And former U.S. Attorney Preet Bharara offered a knife twist of a tweet: “Brett Kavanaugh is a nice guy. So is Merrick Garland, the chief judge on Kavanaugh’s court.”  

Jenna Greene

Tricked into Wiring a Fortune to an Account in China? You Might Be Covered

I’ve been following the saga of a small firm in Pennsylvania, O’Neill Bragg & Staffin, where a hapless partner fell for an email spoofing scam and wired $580,000 from the firm’s Interest on Lawyer Trust Account to the Bank of China, purportedly on behalf of a client. Lest you think ‘Oh, but I’d never be fooled like that,” don’t be so sure. The scammers were crafty. Their email to partner Alvin M. Staffin looked like it came from another partner at the firm, and referred in detail to a pending loan transaction. The message even addressed Staffin by his nickname, “Mel.” When Staffin realized he’d been had, he asked Bank of America to cancel the wire, but it was too late. Now the firm is suing BofA—although the bank makes a strong argument that none of this is its fault. But the firm might take heart in a new ruling by the U.S. Court of Appeals for the Second Circuit. In 2014, mid-level employees at Medidata Solutions Inc. were tricked into transferring $4.8 million to a bank in China based on emails that appeared to come from the company’s president. Again, it was understandable that they were fooled. Company employees had (legitimately) been told of a potential acquisition, and instructed to be ready to respond on an “urgent” basis, so the request seemed plausible. Medidata had an insurance policy to guard against computer fraud and funds transfer fraud. But their insurer, Federal Insurance Co., refused to pay up, arguing that the “imposter did not hack Medidata’s computers, implant those computers with a virus, breach any firewalls or otherwise manipulate Medidata’s computers.” That meant the loss wasn’t covered, the insurer said. U.S. District Judge Andrew Carter Jr. in the Southern District of New York disagreed, granting summary judgment to Medidata, which was represented by McKool Smith’s Adam Ziffer, Robin Cohen and Alexander Sugzda. On July 6, the Second Circuit in a (non-precedential) summary order upheld the decision. “We agree with the district court that the plain and unambiguous language of the policy covers the losses incurred by Medidata here,” wrote judges Rosemary Pooler, Reena Raggi and Peter Hall. “While Medidata concedes that no hacking occurred, the fraudsters nonetheless crafted a computer-based attack that manipulated Medidata's email system, which the parties do not dispute constitutes a ‘computer system’ within the meaning of the policy.” Medidata was represented on appeal by Robert Loeb of Orrick, Herrington & Sutcliffe, with John Jurata, E. Joshua Rosenkranz, Daniel Rubens, Russell Cohen and Evan Rosemon the brief. And in one of the best lawyer name/subject matter matches I’ve seen in a while, Federal Insurance was represented by O’Melveny & Myers partner Jonathan Hacker. The case has made ripples in the insurance bar. Joshua Gold, who chairs the cyber insurance recovery practice at Anderson Kill and was amicus counsel to United Policyholders in the Medidata appeal, called Second Circuit decision “a most welcome result.”  

Lateral Watch

 Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo has snagged two financial services litigators from Greenberg Traurig. Pete Michaels, who co-chaired GT’s financial regulatory and compliance practice makes the move along with longtime colleague David Ward. Comparing law firms to Goldilocks’ porridge, Michaels told my colleague Christine Simmons that Mintz Levin felt right based on its “scalability and the size to be large enough to do what I want to do for my clients, but still small enough where it’s still a community where people know each other and understand each other.” For more, see Greenberg Financial Services Litigators Jump To Mintz Levin   Gibson, Dunn & Crutcher has added securities litigator Michael Celio as a partner in the Palo Alto office.  Formerly a partner with Keker, Van Nest & Peters in San Francisco, Celio has tried more than a dozen cases to verdict. Gibson Dunn chairman and managing partner Ken Doran in a news release said Celio “has successfully defended numerous high-profile clients in federal district and circuit courts throughout the country, and he will add to our deep bench of skilled litigators in Northern California and firmwide.”  But the departure is a somewhat ominous sign for Keker Van Nest—Celio is at least the fourth partner to have left the firm so far this year. For more, see Gibson Dunn Grabs Keker Securities Litigator for Silicon Valley  

What I’m Reading

Trump Picks Brett Kavanaugh, Conservative Stalwart on DC Circuit, for Supreme Court Everything you need to know about Brett Kavanaugh. SCOTUS Nominee Brett Kavanaugh In His Own Words: 'Tune Out the Crowd Noise' The quotable Kavanaugh. Seven Brett Kavanaugh Opinions That Will Find Renewed Attention A look at a handful of his more notable rulings that will come into sharp focus now. Ninth Circuit Turns Back Objections to Massive $10B VW 'Clean Diesel' Settlement “The settlement delivered tangible, substantial benefits to class members, seemingly the equivalent of—or superior to—those obtainable after successful litigation.” Sharp Contrasts Mark Opening of Columbia Business School Sexual Harassment Trial Was the professor a sexual predator who retaliated against a junior colleague when she rebuffed him? Or was her work sub-par, and the lawsuit her “Plan B for getting tenure”? King & Spalding Emerges as Latest Big Law Suitor for IP Litigators IP litigators are hot commodities these days.   A reminder that I’ll be on vacation next week and the week after, which means Daily Dicta will be on hiatus (and I’ll be cruising the Mediterranean…ahhh).