Truth be told, we find the stock options backdating story a little boring. But every now and then, it results in mildly interesting news.
From the Recorder:
A fourth-year associate at Orrick, Herrington & Sutcliffe inadvertently disclosed a sensitive document about stock option backdating that the firm has spent the last five months fighting to keep under seal.
The document — a complaint in a shareholder derivative action against former executives of Mercury Interactive Corp. — contains explosive allegations against the executives and quotes extensively from e-mails in which the executives allegedly discuss backdating their own stock options….
The complaint, Morillo v. Abrams, 1:05-cv-50710, had been filed under seal on Sept. 22 as part of a confidentiality agreement with the executives’ lawyers — but without judicial approval. The Recorder and two other news organizations have been trying since then to unseal the complaint and its supporting exhibits.
But a Dow Jones News Service reporter discovered Friday that Orrick associate M. Todd Scott had inadvertently filed the complaint publicly with a motion to stay the derivative action in October. The Wall Street Journal posted the complaint on its Web site over the weekend and wrote a story about it on page A-4 of Tuesday’s print edition.
Whoops! There goes five months’ worth of legal battles.
Our personal view is that filing under seal is greatly overused, even abused. But if you’re going to file under seal, then file under seal.
(We do feel bad, however, for Mr. Scott. We’re guessing he was operating under inadequate sleep. And when associates are exhausted and overworked, mistakes will get made.) Oops! Orrick Associate Lets Slip Mercury Backdating Document [The Recorder via Law.com]
A quick follow-up to yesterday’s post about Judge Richard Posner’s opinion in the “Giftes” free speech T-shirt case.
Thanks to the commenter who brought the two drawings in the opinion exhibits to our attention. We reprint them after the jump. And we look forward to seeing them in the august pages of the Federal Reporter.
The email reprinted below, from Dean Katharine T. Bartlett, just went out to everyone at Duke Law School. It was forwarded to us by a source at the school.
Yes, we know: the partner who pulled a Michael Richards used “the n word” in the context of telling a story, in which the racial epithet was uttered by a character in the story. He didn’t use “the n word” to refer to any student or interviewee.
We don’t know the nature of the story being told by the partner. But unless the story was about, say, the partner’s pro bono representation, in a civil action for damages, of a hate crime or police brutality victim who was attacked and called “the n word,” it was hugely inappropriate for the partner to use a racial slur in this context (or, for that matter, any other context).
>>> Kate BARTLETT / 11:21 AM >>>
To The Duke Law School Community:
The purpose of this letter is to address a recent incident of concern arising out of a law firm recruitment visit to Duke. A Duke student reported that a partner from Fulbright & Jaworski who was meeting students on campus told a story in which “the n word” was attributed to one of the characters in the story. Understandably, the use of the word offended the student.
Upon learning about this episode, pursuant to the Law School’s Anti-discrimination Policy, http://www.law.duke.edu/career/pdf/discriminationcomplaintform.pdf, the Career Center staff immediately asked the student if they could approach the employer to investigate the incident. The student agreed, and Tia Barnes called the recruiting manager to say that this was a serious situation that needed to be promptly addressed.
The hiring partner called back within minutes, clearly upset at the behavior of his partner. Shortly thereafter he reported back that he raised the issue to the highest levels of the firm, that the firm was taking internal measures dealing with the individual involved, and that the offending lawyer will not be permitted to return to Duke to meet with students.
The offending lawyer admitted his use of the word in question and reportedly recognizes that it was wrong to do so. The firm also sent an official apology to the student through us, as the student wished to remain anonymous.
As part of its remediation efforts, a partner at the law firm has asked to come to Duke to meet with students to describe the incident, to apologize to the community publicly, and to explain the measures that the firm has taken. Bruce Elvin has arranged for this meeting to take place tomorrow, February 22, at 4:30, in Room 3041.
This situation is ongoing, but to help the community better understand what has occurred thus far in the face of stories circulating on the grapevine, we asked for the student’s permission to describe what happened and to write this letter, and the student agreed. As is understandably often the case, the student still wishes to remain anonymous, and we have done our best to respect that wish, particularly given the importance of ensuring that our follow-up to incidents of this sort encourages students in the future to come forward to report such incidents, and does not discourage them from doing so.
This incident creates an opportunity to restate that the law school does not tolerate offensive or discriminatory conduct behavior by employers, whether occurring during interviews, mock interviews or summer employment. Pursuant to our policy, complaints of such behavior are investigated and we evaluate the response by employers to determine if their remedial action in response to the behavior is adequate. If you experience such behavior, please let us know either in person or by using the complaint form referenced above.
I appreciate the strong feelings this incident has raised and seek to work with the community as an ongoing matter to facilitate communication about how to make our climate here free from discrimination in the career services context and in all other dimensions of our Law School.
Katharine T. Bartlett
Dean and A. Kenneth Pye Professor of Law Duke University School of Law Update: We now have more details and context about the incident — and it’s not as bad as it initially sounded. Details here.
Last week we wrote about how John Jay Osborn, a law professor and author of The Paper Chase, sniffily dismissed One L, by Scott Turow. “One L is competent,” he said. “But it doesn’t have a HEART.”
Now a prominent blogger has come to Turow’s defense. In this Times Select column, grande blogress diva Ann Althouse defends Turow — and, in the words of a tipster, “cattily trashes John Jay Osborn, author of the Paper Chase, for his suggestion that law profs not teach via the Socratic method in order to make students ‘happier.’”
Money quote, comparing Osborn’s “The Paper Chase” to Turow’s “One L”:
I preferred the memoir [of One L], the account of an ordinary man as he encounters some interesting, fallible human beings who did the work that both Osborn and I do now.
Though none of the law professors I know are much at all like Kingsfield, Osborn chided us law professors for making our students so unhappy: stop calling on them; listen only to volunteers; don’t dictate how they should think; let them tell their own stories.
Law should connect to the real world. But that doesn’t mean we ought to devote our classes to the personal expression of law students. The cases we read for class are always based on factual disputes that arose in real life….
So law is not abstract unless one makes the mistake of turning it into an abstraction. We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.
The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.
Good stuff (even it it’s not as catty as we had hoped). It’s worth noting that Professor Althouse, whose own excellent blog is less academic than many other law professor blogs, is not opposed to “personal expression.” It’s just that she believes, and rightly so, that there’s a time and place for everything.
P.S. Random aside: Professor Osborn’s daughter, Meredith, is a Harvard Law grad now clerking on the Ninth Circuit.
P.P.S. We had the pleasure of meeting Professor Althouse at the NYLS conference last week (see photo at right).
More photographs from the conference, of superior quality, are available at Althouse and Soloway. ‘A Skull Full of Mush’ [Times Select] At the “Writing About the Law” conference [Althouse] Ripped From the Headlines [Soloway] Earlier: John Osborn to Scott Turow: “Game On, Bitch”
The LIST OF SHAME has been whittled down to thirteen firms (ranked by Vault 100 placement; AmLaw 100 placement indicated parenthetically):
43. Baker & McKenzie (3)
50. Fulbright & Jaworski (36)
58. Vinson & Elkins (39)
70. Hunton & Williams (43)
75. Nixon Peabody (64)
77. Bryan Cave (56)
82. Reed Smith (33)
83. Dorsey & Whitney (68)
86. McGuireWoods (65)
90. Baker & Hostetler (73)
92. Mintz Levin (91)
95. Dickstein Shapiro (80)
100. Seyfarth Shaw (66)
The latest departure from the list: Kelley Drye & Warren. Their pay raise, which will be reflected in the March 15 paychecks, is retroactive to January 1. Bonuses for 2006 will be paid on February 28 (which strikes us as late; but better late than never).
The complete KDW announcement email appears after the jump.
* The standard for predatory-bidding claims is the same as that for predatory-pricing claims, and Ross-Simmons didn’t meet it. [U.S. Supreme Court (PDF)]
* A certiorari petition to the U.S. Supreme Court does not toll the 1-year statute of limitations for seeking federal habeas relief from a state-court judgment. [U.S. Supreme Court (PDF)]
* Juries can’t punish defendants for harm done to nonparties. [U.S. Supreme Court (PDF)]
* James Brown to finally be buried. [CNN]
* But the fight for the right to bury Anna Nicole Smith continues. [CNN]
On our recent trip up to New York, we dropped by the Orion — the luxury high-rise apartment building that celebrated plaintiff Aaron Charney calls home. We previously profiled Aaron’s apartment in these pages, for our Lawyerly Lairs column.
We briefly entertained the thought of entering the building, going up to the reception desk, and telling the doorman we were here to see Aaron Charney. Maybe he would then invite us up for a visit, and we could check out the extensive collection of parental photographs decorating his pad.
But then we thought that such an action might put us on the receiving end of a temporary restraining order. And Aaron is no stranger to TRO practice, having been slapped with one by Sullivan & Cromwell earlier this month.
So we just loitered outside the building for a while, and took a few photographs. Here they are:
* Filet-O-Fish creator never got a dime off his religion-inspired fish sandwich, yet remains grateful for all he did achieve. That is the spirit of Lent (which starts tomorrow!). [Cincinnati Enquirer]
* No one disses Nike. [The Guardian]
* Inventor of the Electric Slide says Teri Hatcher is doing it all wrong. [MSN Technology via Sivacracy.net]
* Flasher invokes the “These pants always do that” affirmative defense… [IndyStar.com]
* …while Peeping Tom sticks with the less creative “What? This is the women’s bathroom?” defense. [The Milwaukee Channel]
* EMI and Warner Music — on again! [The Daily News]
If you’re getting tired of our stories about the DOJ’s Shanetta Cutlar and S&C’s Alexandra Korry, we have a new name to add to our rotation of delightfully high-powered, imperious females. Meet Judge Vanessa D. Gilmore (at right), of the U.S. District Court for the Southern District of Texas.
Whisper her name out loud: “Vanessa Gilmore.” Doesn’t it even SOUND diva-licious? If she weren’t a federal judge, couldn’t she be a character on “Dynasty”?
But we have reasons other than the sound of her name for declaring this rather attractive jurist to be a judicial diva. From a helpful tipster:
I’d like to bring another judicial diva to your attention: Judge Vanessa Gilmore of the Southern District of Texas. You probably have already read about Judge Gilmore’s ruling in the Enron broadband case vacating Howard’s conviction. I’m not sure she’s a match for Shanetta Cutlar, but she’s no slouch either when it comes to divadom.
[R]umors about her include:
* She has thrown her keys in open court at an attorney (I believe it might have been an AUSA) for calling her “ma’am”;
* She ordered an AUSA to have John Ashcroft personally write her a letter explaining the DOJ’s reasons for seeking the death penalty against one defendant but not others [the Williams case, discussed in more detail below];
* When she didn’t like the particular font counsel used, she told him that she threw his motion in the trash without reading it, and then she ruled against him;
* During trial she is happy to make findings contrary to stipulations of the parties; and
* She encourages ex parte contact with the court and attempts to prevent record-making: any discovery “motions” must be way of a one-page letter to the court. She will then have a hearing which she considers an “oral motion to compel.” She will happily rule without actually seeing any of the discovery propounded.
More about Judge Gilmore, including a discussion of how she got benchslapped by the Fifth Circuit, after the jump.
P.S. We welcome colorful anecdotes about strong personalities within the legal profession regardless of their race, gender, etc. It just so happens that lately we’ve been getting information about women. If you want to tell us about your workplace abuse at the hands of a man — e.g., Eric Krautheimer, of Brokeback Lawfirm infamy — we’re all ears.
Back by popular demand: the LIST OF SHAME.
Since the last publication of the list, one week ago, there have been some changes. Baker Botts has matched market in New York, so they are kinda-sorta off the list — “kinda-sorta” because we don’t think they’ve raised in other offices, including their Texas offices.
(Some of you have bitched about that, in poesy as well as prose.)
Thelen Reid is off the list, as of today. They were so eager to be removed from the LIST OF SHAME that they issued a press release touting their associate pay raises.
So here’s the latest list. If you see inaccuracies, please email us (with supporting documentation). Thanks.
40. Baker Botts
43. Baker & McKenzie
50. Fulbright & Jaworski
58. Vinson & Elkins
70. Hunton & Williams
75. Nixon Peabody
77. Bryan Cave
82. Reed Smith
83. Dorsey & Whitney
90. Baker & Hostetler
91. Thelen Reid
92. Mintz Levin
95. Dickstein Shapiro
98. Kelley Drye
100. Seyfarth Shaw Thelen Reid Brown Raysman & Steiner LLP Increases Associate Salaries [Thelen Reid (press release)] Earlier: Prior ATL coverage of associate base salaries (scroll down)
Watch to find out what some of our subscribers received in their May box!
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We currently have a number of active openings for associate roles at US and UK firms in HK / China, Singapore and two new in-house openings. As always, please feel free to reach out to us at email@example.com in order to get details of current openings in Asia, as well as to discuss the Asia markets in general and what we expect for openings later this year. Our Evan Jowers and Robert Kinney will be in Beijing the week of March 25 and Evan Jowers will be in Hong Kong the week of April 1, if you would like to meet them in person.
The US associate openings we have in law firms are in the usual areas of M&A, cap markets, FCPA / white collar litigation, finance, and project finance. The most urgent of our top tier (top 15 US or magic circle) law firm openings in Asia (among many other firm openings that we have in Asia) are as follows:
• 2nd to 5th year mandarin fluent M&A associates needed in Beijing and Hong Kong at several firms;
• Korean fluent 2nd to 4th year cap markets associate needed in Hong Kong;
• 2nd to 5th year Japanese fluent M&A associates needed in Tokyo;
• 4th to 6th year mandarin fluent cap markets associate needed in Hong Kong;
• 2nd to 4th year M&A / cap markets mix associate needed in Singapore.
The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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