Hello Lit Daily readers. It’s Wednesday, Aug. 16, and I’m your editor and columnist Ross Todd. As we’ve done the past few times I’ve been out for a spell, we’re running an extra edition of Litigator of the Week—something we’ve dubbed Litigator of the (Past) Week—to avoid jumbling two weeks together into a LOTW battle royale. This past week also happened to bring us an exceedingly impressive group of runners-up and shout outs. So let’s get to them already.
One quick reminder before we do: This week’s nominations close at 5 p.m. ET. Get them to me via email at rtodd@alm.com.
Our first runners-up this week are lawyers at Simpson Thacher & Bartlett and the Southern Poverty Law Center who secured a ground-breaking ruling from the Fifth Circuit holding that a Mississippi law permanently disenfranchising people previously convicted of certain crimes amounted to “cruel and unusual punishment.” Not only does the ruling change the landscape for tens of thousands of Mississippians previously barred from voting, but it potentially paves a path for those who have served out their prison sentences but still face lifetime voting bans in 14 other states that have similar laws on the books. The successful Eighth Amendment challenge to the law—Section 241 of the Constitution of Mississippi of 1890—follows a separate lawsuit raising equal protection clause claims on behalf of the disenfranchised that was rejected by the Fifth Circuit and denied cert by the U.S. Supreme Court. But in a 2-1 decision on Aug. 3, Circuit Judge James Dennis wrote the following for the court’s majority: “By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is thus a cruel and unusual punishment.” The Simpson Thacher team was led by Jonathan Youngwood, global co-chair of the firm’s litigation department, and included senior counsel Janet Gochman, pro bono attorney Nihara Choudhri and former counsel Isaac Rethy, who died unexpectedly while the case was pending.
Peter Karanjia, chair of the administrative law appellate practice at DLA Piper, and Melanie Walker, co-chair of the firm’s corporate & securities litigation practice, get a runner-up spot for securing a federal preemption win for T-Mobile subsidiary MetroPCS. After a bench trial in May, U.S. District Judge James Donato in San Francisco on Aug. 4 found that resolutions adopted by the California Public Utilities Commission were preempted by federal law and issued an injunction permanently barring their enforcement against MetroPCS. The CPUC had been seeking to collect more than $220 million from the company in state surcharges, penalties, and interest under the challenged resolutions. The decision was also the first to address “reasonable” methods for telecommunications carriers to allocate their revenues—an issue with multimillion consequences in a variety of regulatory settings.
Also landing runners-up honors are lawyers at Kirkland & Ellis and Baker Botts who helped Pepsico Inc. beat back a trademark infringement challenge to its Mtn Dew Rise energy drinks brought by Rise Brewing, the maker of canned coffee-based and tea-based drinks. U.S. District Judge Lorna Schofield in Manhattan granted summary judgment to Pepsico on Aug. 2 citing a Second Circuit opinion that found that “the strong logical associations between ‘Rise’ and coffee represent weakness and place the mark at the low end of the spectrum of suggestive marks.” The team previously secured the cited Second Circuit decision last year, which reversed an earlier preliminary injunction decision from Schofield siding with Rise Brewing in the case. The Kirkland team was led by Dale Cendali, Diana Torres, Allison Buchner, Lauren Schweitzer and Saghar Esfandiarifard. The Baker Botts team was led by Susan Kennedy, Paul Reilly and Monica Smith.
Runners-up honors also go to a Pillsbury Winthrop Shaw Pittman led by Bill Sullivan that got a rare dismissal on the grounds of grand jury bias for former Westinghouse Electric Co. nuclear executive Jeffrey Benjamin in a case centering on the construction of the V.C. Summer nuclear power plant in Jenkinsville, South Carolina. Benjamin was indicted on charges that he obscured the status of the project from 2015 to 2017, when it was reportedly behind schedule, to maintain cash flow and liquidity for WEC. But U.S. District Judge Mary Geiger Lewis on Aug. 2 dismissed the indictment finding that the government had failed to identify and recuse the ratepayers to the utilities for whom WEC was constructing the plant—Benjamin’s alleged victims. “It is common sense that in a robbery case, the person who allegedly had their belongings taken would be barred, as a victim, from participating in indicting the accused, no matter if there was a mountain of evidence against the accused or if the victim insisted they could remain impartial,” the judge wrote. “So too must ratepayers be barred from evaluating the superseding indictment as written.” The Pillsbury team also included partners Tom Hill and Pat Hovakimian, counsel Drew Navikas, senior associates Brian Beckerman and Chris Butler, associates Sarah Madigan, Patti Rothenberg-Montz, Philip He, Johnna Purcell and Yona Starosta, senior law clerks Leighton Watson, Kristina Sgambati and Andrea Shang, and attorney Andrew Gibson.
Benjamin Finestone, John Shaffer and Matthew Scheck of Quinn Emanuel Urquhart & Sullivan get a runners-up nod for successfully taking on debtor-in-possession lenders in the Sanchez Energy Corp. bankruptcy on behalf of unsecured creditors. U.S. Bankruptcy Judge Marvin Isgur in Houston on Aug. 3 allocated nearly 70% of the shares in the reorganized and renamed oil company—now called Mesquite Energy—to Quinn’s clients, valuing the unsecured creditors' shares at about $197 million. The DIP lenders, Fidelity Investments and Apollo Global Management, had been seeking control of the entire company.
Shout out to Baker McKenzie partner Jodi Avila and associate Adrienne Harreveld who last week convinced the Eleventh Circuit to revive a claim brought on behalf of their pro bono client Ricky Christmas, a Florida pretrial detainee who claimed his constitutional rights were violated when his mail to his lawyers was scanned into the jail's computer. "Even the possibility that a jail official could read a prisoner's legal mail can violate the prisoner's First Amendment rights," wrote Circuit Judge Robin Rosenbaum. "Though Christmas does not know whether anyone other than he read his mail, he worried that the jail could and may have, since it had access to the computer into which he had scanned his mail. Because that claim is plausible on its face, we hold that the district court erred in dismissing it."
Shout out to Steve Strauss, Erin Trenda and Matt Nguyen of Cooley who got a unanimous ruling from the California Supreme Court on Aug. 3 guaranteeing certain internal governance protections for charities across the state. The court rejected a “continuous directorship” requirement for plaintiff standing under the state’s charity director enforcement statutes. That means that their client Debra Turner, a former director of The Conrad Prebys Foundation, has standing to sue to challenge a $15 million payment the foundation made that she claimed fell outside its charitable charter, despite the fact that she was ousted from the board after the suit was filed.
Shout out to Maeve O’Connor, Elliot Greenfield and their team at Debevoise & Plimpton who knocked out a class action against clients Tether and Bitfinex brought by purchasers of the Tether’s USDT stablecoin. Investors claimed the companies made false statements about the adequacy of the reserves backing the USDT tokens. But Judge Laura Taylor Swain in Manhattan on Aug. 4 found that the plaintiffs failed to indicate the price they paid for their USDT tokens, whether they sold them and at what price, or any corresponding alleged losses tied to the alleged misrepresentations. The Debevoise team on the matter also included counsel Stephan Schlegelmilch and former associates Melanie Burke and Samuel Rosh.
Shout out to Ben Nagin, Eamon Joyce and their team at Sidley Austin. On Aug. 2, the Second Circuit reversed a bankruptcy court ruling that could have opened the door to a nationwide class action against their client Citibank for allegedly violating discharge injunctions. Circuit Judge Richard Wesley wrote that “[a] bankruptcy court’s civil contempt authority does not extend to other bankruptcy courts’ discharge orders in a nationwide class action. The class-wide relief sought by plaintiff is therefore unavailable under the Bankruptcy Code.” The Sidley team on the matter also includes counsel Jonathan Muenz and managing associate James Horner.
Shout out to a team at Skadden, Arps, Slate, Meagher & Flom that got an affirmance last week from the Delaware Supreme Court of an earlier Chancery Court win for client BridgeBio Pharma Inc. and certain company officials. The suit stemmed from the company’s acquisition of 37% of the Eidos Therapeutics’ common stock that it did not already own. The Delaware high court affirmed that the deal was subject to business judgment review, as well as the lower court’s dismissal with prejudice. The Skadden team included partner Cliff Gardner, along with associates Andrew Kinsey and Mallory Phillips.
