Tag Archives: Law 360

Will We See A Wave Of White-Collar Litigation?

…And what implications might that have for lateral hiring in the white-collar world?

When we talk about practice areas that might actually benefit from the coronavirus pandemic and its economic fallout, bankruptcy tops the list. And this makes sense, given the big-name bankruptcies that have been filed in recent weeks, including J. Crew and Neiman Marcus.

Here’s another practice that might benefit from current events: white-collar work, both criminal and civil. The space has been a little sleepy in the past few years, as the more robust enforcement agenda of the Obama Administration gave way to a more pro-business, less aggressive approach by the Trump Administration. Just last year, Jack Newsham wrote in the New York Law Journal about a “white-collar slowdown,” fueled by a dip in white-collar criminal prosecutions to their lowest level in 33 years.

(Note: although pundits love to blame President Trump for what they view as an overly lax pursuit of white-collar criminals, it should be noted that the downward trend in white-collar prosecutions began under the Obama Administration. Federal white-collar cases peaked in 2011 under President Obama, and they’ve been declining ever since.)

In the wake of the pandemic, is white-collar work poised for a boom, or at least an increase? From a piece by Tom McParland for the New York Law Journal:

New York lawyers are bracing for a surge of white-collar criminal and civil cases stemming from market volatility caused by the COVID-19 pandemic, former prosecutors told the New York Law Journal this week….

David Miller, a partner at Greenberg Traurig and former assistant U.S. attorney in the Southern District of New York, said investigations of pandemic-related misconduct were likely already underway, but additional cases also would arise from prior acts that are just now being brought to light.

“I think you’re going to see a combination of both criminal and civil law-enforcement actions,” Miller said. “Either way, I think you’re going to see an uptick in civil and criminal enforcement work later this year.”

Growth areas could include prosecutions of False Claims Act and fraud cases related to government aid programs launched in response to the pandemic, insider trading stemming from bigger swings in the stock market, hoarding and price-gouging of personal protective equipment (PPE) under the Defense Production Act (DPA), and Foreign Corrupt Practices Act (FCPA) cases resulting from attempts to procure PPE in foreign markets.

We are already seeing increased activity on these fronts. As reported by Law 360:

U.S. Attorney General William Barr in March directed the creation of a task force to focus on COVID-19-related market manipulation, hoarding and price-gouging, to be staffed by an experienced attorney from each U.S. attorney’s office.

New York federal prosecutors made waves in recent weeks with a number of criminal cases brought against individuals as part of the nationwide crackdown, including the first-ever charges under the DPA since President Donald Trump signed an executive order invoking the law in response to the pandemic.

And it won’t be exclusively federal. State prosecutors play a significant role in pursuing white-collar crime, and defense lawyers told Law360 that they expect to see increased state prosecutions as well.

(A caveat, though: the pace of these new cases could be a bit slow. Prosecutors are working from home, agents aren’t making as many arrests as usual, and although grand juries are still meeting in some jurisdictions (like the Southern District of New York), jury trials and sentencings are generally on hold.)

What could a pickup in prosecutions mean for the market for white-collar lawyers, both firm-to-firm laterals and lawyers coming out of government, such as U.S. Attorney’s Offices and Main Justice? Once firms return to recruiting as usual, the market should be better than it has been. That might not be saying much — in 2019, the market was so challenging that even assistant U.S. attorneys from the legendary S.D.N.Y. had a tough time of it — but any improvement would be welcome.

But white-collar lawyers should keep their expectations modest, and not pop open the champagne just yet. To borrow a term from the real estate market, there’s a lot of “shadow inventory” in white-collar — lawyers who aren’t on the market right now, largely because it hasn’t been a great market, but who will put themselves on the market once it improves. I predict it will still be a buyer’s market, at least for a while.

Which white-collar litigators will be best positioned to get hired? For partners looking to switch firms, the two top factors will be book of business and actual trial experience. For prosecutors looking to enter private practice, trial experience is also critical; it’s a big part of why firms hire former prosecutors, who tend to get far more trial experience than Biglaw attorneys.

Other important factors include a supervisory title and experience, since this helps in garnering clients and press coverage; expertise in the right areas, such as securities, FCA, or FCPA work (more valuable than, say, drug or gang experience); and diversity, which firms are, to their credit, focusing more on in hiring. Having worked on a famous case also helps a lot. See, e.g., the lawyers who worked on Robert Mueller’s Russia investigation, who landed at such firms as Gibson Dunn (Zainab Ahmad), Paul Weiss (Jeannie Rhee), Cooley (Andrew Goldstein and Elizabeth Prelogar), Jenner & Block (Andrew Weissmann), and WilmerHale (Bob Mueller, James Quarles, and Aaron Zebley).

If you’re a white-collar lawyer at a firm who’s thinking of a move or a government lawyer thinking of entering (or returning to) private practice, please feel free to drop me a line. I’m happy to chat with you about the market in general and what you can do to position yourself best for a move once hiring returns to normal and the white-collar market (hopefully) picks up.

Lawyers See Coming Surge in White Collar Criminal, Civil Cases Stemming From Pandemic [New York Law Journal]
COVID Crimes: White Collar Cases To Expect From The Crisis [Law360]

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. David Lat is a managing director in the New York office, where he focuses on placing top associates, partners and partner groups into preeminent law firms around the country.

Amy Savage Quoted In Law360

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Amy Savage Quoted In Law360

Law360, Washington (August 21, 2015, 5:34 PM ET) — While BigLaw litigators can be frustrated by rate inflexibility or stifled by conflict issues born in other sections of their firm, the best litigation boutiques offer ambitious attorneys the same opportunities as bigger firms to work high-stakes cases for top-tier clients, analysts say. 

Many litigation boutiques are the result of first-class BigLaw partners starting their own shops, essentially creating a small, standalone version of the litigation section at their old firms, according to a number of legal recruiters. Freed from some of BigLaw’s constraints — but endowed by the experience and reputation big firms offer — the best litigation boutiques are every bit as attractive to clients and attorneys alike as corporate mega firms.

“Largely, they’re sought out because they’re good and they don’t have conflicts,” said Martha Ann Sisson, of legal recruiting firm Garrison & Sisson. “They’re not competing on price, they’re competing on skill and expertise.”

Here, Law360 looks at eight litigation boutiques that analysts say have all the talent of any BigLaw litigation section.

Robbins Russell Englert Orseck Untereiner & Sauber LLPWith a stellar record at the U.S. Supreme Court, a roster of only 29 attorneys and clients including Northrop Grumman Corp. and the Bank of New York Mellon Corp., Washington-based Robbins Russell is among the cream of the litigation boutique crop, analysts say.

The firm has won 39 of its 50 cases before the Supreme Court since its 2001 founding, according to its website. Part of the firm’s success comes from a careful approach to hiring — taking mostly candidates from other top-tier firms or those with at least one federal clerkship.

“They are very deliberate about their hiring, and I think that makes a big difference. You have to meet nearly everyone at the firm,” Savage said. “People like practicing there, and I think that shows. The client can tell who’s passionate about what they’re doing.”

Specializing in appellate litigation, the firm won a unanimous Supreme Court decision in May on behalf of individual debtors in a bankruptcy case, where justices ruled that post-petition funds held by a Chapter 13 trustee must be returned to the debtor, and not creditors or other parties, after the case is converted to a Chapter 7. In July, the firm won a $380 million decision for BNY Mellon in New York federal court when a U.S. district judge ruled Chesapeake Energy Corp. owed the bank the full make-whole price in a bond buyback.

Hangley Aronchick Segal Pudlin & SchillerFifty-attorney Philadelphia firm Hangley is also selective in who it hires — and in turn it’s the choice of selective lateral movers, said Andrew Ufberg, a managing director in legal recruiter Major Lindsey & Africa’s Philadelphia office.

“If I’m talking to someone from a big, big firm in Philly they’ll say, ‘I’m not interested in doing the same thing across the street, but if Hangley has an opening, I’m listening,’” Ufberg said.

Hangley’s high-end practice and laid-back culture are part of its appeal to talented attorneys, he added. And the firm’s approach to hiring illustrates both. The firm has high standards for hires, often taking applicants who graduated with honors from top-25 law schools, and practically requiring a federal clerkship on an applicant’s resume. But just as important as credentials is personality, Ufberg said, and a jobseeker’s first interview is over lunch, which would be unusual in BigLaw.

“They’re substantive conversations over lunch, but the message is … ‘Who are you as a person? Would you fit in here,’” he said.

This month, Hangley succeeded in dismissing a False Claims Act suit against General Dynamics American Overseas Marine. In May, the firm won a transfer order allowing Rite Aid Corp. to join multidistrict litigation against AbbVie Inc. and Teva Pharmaceuticals Industries Ltd. for allegedly colluding with the maker of a generic cholesterol drug to keep the low-price med off the market.

Keker & Van Nest LLPWhen Greenberg Traurig LLP — the third-largest firm in the U.S., according to a Law360 analysis earlier this year — was hit with a motion for sanctions in California federal court, it turned to Keker & Van Nest for representation, cementing the Bay Area firm’s reputation as litigation specialists on par with firms of any size.

Founding partner John Keker, who prosecuted Col. Oliver North early in his career, has become an icon for white collar defense. His reputation and his charisma are part of the firm’s appeal for talented attorneys, said Paige Drewelow a managing director in Kinney Recruiting LLC’s San Francisco office. That talent spurs further success for one of the top litigation firms in the state.

“What makes them unique is they’ve got some of the best talent in the Bay Area and California,” Drewelow said, adding the firm is a favorite of Supreme Court clerks looking for work in San Francisco, in part because associates are given more responsibility earlier in their career, and in part because of the prestige of the work itself.

“They get amazing work — white collar criminal defense and [intellectual property] litigation and that’s pretty much it,” Drewelow said. “They have a number of people who have gone on to be judges.”

The firm has defended high-profile clients like “Star Wars” filmmaker George Lucas, Enron Chief Financial Officer Andrew Fastow, cyclist Lance Armstrong and Major League Baseball and its teams.

Zuckerman Spaeder LLPWith offices in Washington, New York, Baltimore and Tampa, Zuckerman rose to the top of the litigation boutique world years ago.

“When I first started recruiting 10 years ago, people told me, ‘You’ve got to keep them on your radar because they do really interesting, high-profile cases and attorneys love working with them,'” said Amy Savage, a senior director at recruiter Lateral Link.

The firm is known more for its work on behalf of individuals instead of corporations, Sisson said. Ex-Massey Energy Co. CEO Don Blankenship, who is facing charges related to an explosion that killed 29 employees, is one client. Zachary Warren, the former client relations manager at Dewey LeBoeuf LLP, who was indicted alongside Dewey executives on charges they deceived investors, is another.

“Zuckerman can be tasked with representing, say, a high-profile elected or appointed official who’s done something idiotic,” she said. “They tend to represent individual board members or executives rather than the corporate entity.”

More recently, the firm is representing three former NFL players in a Third Circuit case regarding a settlement with the league over concussion claims.

Petrillo Klein & Boxer LLPIn 2012, Nelson A. Boxer, who had steered Alston & Bird LLP’s white collar practice, joined two other former federal prosecutors, Joshua Klein and Guy Petrillo at their two-year-old firm. Petrillo Klein now has 12 attorneys and has proven a thorn in the side of the U.S. Securities and Exchange Commissionwinning an injunction against the financial regulator earlier this month.

“These are first-chair attorneys who are very good in their practice areas,” said Melissa Galett of Lucas Group’s New York legal recruiting office.

The firm has attracted high-profile clients and talented associates largely on the reputations of its founding partners, she added.

“If they can take on the same issues with the same practitioners they could find at BigLaw at a lower structure or an alternative structure … they’re going to do it,” Galett said of potential clients.

Lankler Siffert & Wohl LLPOf LSW’s nine partners, six are former federal prosecutors, according to the firm’s website. That includes founding partners Frank H. Wohl, who was chief of the civil division and deputy chief of the criminal division in the U.S. Attorney’s Office for the Southern District of New York, and John S. Siffert, who was also an assistant U.S. attorney in New York City.

“Another top litigation firm,” Galett said. “Everyone has top academic credentials and very good first-chair trial experience.”

The 22-attorney firm is known for white-collar defense and complex commercial litigation. In April, Derwick Associates executive Leopoldo Alejandro Betancourt Lopez, a LWS client, was dismissed from a $1 billion bribery suit. Last year, the firm handed star U.S. Attorney Preet Bharaha his first loss in an insider trading suit in five years.

Kellogg Huber Hansen Todd Evans & Figel PLLCAfter splitting from the appellate department at Mayer Brown LLP, Michael K. Kellogg and Peter Huber became two of the founding partners of the Washington-based firm, now a preeminent telecommunications litigation boutique, analysts said.

“It’s certainly recognized for its excellence in litigation,” Sisson said. “While there tends to be a telecommunications center to it, it’s not exclusively that.”

The firm contributed to boutiques’ excellent showing in the 2015 Supreme Court term, winning both cases it argued there. After a remand from the Supreme Court in 2012, the firm won reinstatement of a $45.5 million jury verdict in a Federal Circuit en banc case this month. And AT&T Inc. has enlisted the telecom specialists to fight the Federal Communications Commission’s imposition of a record $100 million fine.

Kobre & Kim LLPWith nine offices spanning three continents, New York-based Kobre Kim bills itself as “the global litigation boutique.” Analysts agree the firm should be on the top of anyone’s short list for bet-the-company litigation.

“They’re the highest-end litigation boutique — I don’t want to say in the world — but they’re really high-end,” Ufberg said. “I think if you would ask colleagues of mine at MLA or other recruiting firms, I think they would probably say Kobre Kim is the best litigation boutique in the world.”

The firm won acquittal in November for former UBS AG executive Raoul Weil, who was accused of helping 20,000 U.S. clients hide $20 billion from the Internal Revenue Service. The firm also represented Chevron Corp. in a suit seeking a consulting firm’s cooperation in litigation over a discredited $9.5 billion settlement in Ecuador.

Kobre Kim’s success comes not just from its top-tier talent and propensity for high-stakes proceedings, but also its client relations, Sisson said.

“They’re not only technically sound, but they’re good at the client maintenance piece of it,” she said.

Michael Allen Featured On Law 360

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Michael Allen Featured On Law 360

Due Diligence Failures Leave Lateral Hires At Risk By Andrew Strickler

Law360, New York (April 01, 2014, 7:20 PM ET) — BigLaw partners considering lateral moves are failing to review records or even speak with a firm financial officer before making the leap, an oversight that could leave them ill-prepared for financial woes if their new firm founders, experts say.

Although high-profile bankruptcies like Howrey LLP’s and Heller Ehrman LLP’s have injected some discipline into the lateral market, far too many partners are still “totally cavalier” when it comes to learning about a firm’s financial health or even reviewing the partnership contract, said Jon Lindsey of attorney search firm Major, Lindsey & Africa, co-author of the 2014 Lateral Partner Satisfaction Survey.

The analysis of 1,775 partner responses reveals “shockingly inadequate” habits when it comes to learning about a firm’s spending habits as well as partners’ potential liability for major office leases and bank loans.

According to the survey, just 40 percent of lateral candidates met with or spoke to a financial officer before they signed on. Less than a third made contact with a benefits manager, and just 36 percent said they reviewed a firm loan document, lease or other financial statement.

Perhaps most troubling, Lindsey said, was the failure of nearly 40 percent of partners to review their firm’s partnership agreement before joining.

If those lawyers “were counseling a client who was considering an investment in a real estate or oil and gas or other partnership, and neglected to look at that fundamental document, multiple alarm bells would go off and malpractice insurers would expire of apoplexy,” the report states. “Leaving aside the very small number of large law firms which have no written partnership agreement, it still leaves well over one-third of all lateral partners who leapt before they looked.”

Despite the lack of research, the survey found, the lion’s share of partners — 86 percent — said they had adequate and accurate information about their firm’s financial health. Nearly four in five said they felt they knew what they needed to do about the compensation system.

The report says that for many attorneys, the high level of confidence is apparently borne out of a review of media reports “and having one or more of the firm’s partners reassure them that the firm was in good financial shape.”

Lindsey said more partners should overcome whatever personal reservations they may have and glean what they can do about bank covenants and major lease obligations.

Firm managers “might think you’re being exceptionally thorough, but I don’t know that many lawyers get criticized for being thorough,” he said.

The issue of firm accounting practices and debt was stirred up again last month by the specter of Dewey LeBoeuf LLP and criminal charges filed against Chairman Steven Davis, Executive Director Stephen DiCarmine and others for alleged fraud committed as the firm tried to stay ahead of creditors and partner guarantees before its implosion in 2012.

Among the report’s other key findings was an overall high level of satisfaction partners had in their current role. Fifty-two percent of lateral partners indicated they were “very satisfied” in their current firm, and an additional 33 percent said they were “somewhat satisfied.” Less than 4 percent of respondents reported being not at all satisfied.

Data pointed to firm culture as a key driver of lateral moves as well as levels of satisfaction. More than 40 percent said not liking their former firm’s culture was the reason they left, compared to nearly 33 percent who cited compensation.

Anticipated compensation at a new firm ranked sixth in importance for partners in the selection of their current firm, following other considerations such as the personality of partners and practice area support.

Michael Allen, managing principal at Lateral Link Group LLC, said that many partners should be more disciplined about their financial due diligence but cautioned against enquiries that go too far afield of a partner’s individual capital stake in the partnership.

“A lot of partners should be doing more than they are, but those kinds of questions … aren’t going to be well- received,” he said.

Instead, Allen said, a lateral should weigh how much capital the firm will require and ask if the firm uses partner contributions for routine day-to-day capital or for more troubling uses such as paying down debt.

A failure to have that information could lead to a bad professional move, as well as complications around seeing that money again when the partner decides to leave.

Beyond the “doomsday” scenario of a bankruptcy, “the real risk is they don’t look at this beforehand because in their mind, they think it’s the last firm,” Allen said. “Even if the firm doesn’t go belly up, they don’t know the restrictions on getting their capital back.”

–Editing by Jeremy Barker and Christine Chun.