In an underappreciated ruling, District of Columbia Judge Amit Mehta ruled that the multinational law firm Covington & Burling must comply with an SEC subpoena requiring the firm to give up the names of clients, publicly-traded corporations, in order for the SEC to investigate whether there was any trading on non-public information. This didn’t arise because of suspicious trades or other red flags on the corporate side of the ledger, but because hackers working for China launched a successful cyber attack on Microsoft which ultimately gave them access to the firm’s internal records.

This case concerns the intersection of a federal law enforcement agency’s interest in rooting out possible law violations and a law firm’s ethical obligations to its clients. On March 21, 2022, the Securities and Exchange Commission (“SEC” or “the Commission”) served a subpoena on Covington & Burling, LLP (“Covington”), a multinational law firm headquartered in Washington, D.C. The subpoena sought information relating to a cyberattack on Covington’s information technology systems that had occurred a year prior. Covington largely complied with the subpoena. It balked, however, in one key respect. Citing its ethical obligation to protect its clients’ identities, Covington refused to disclose the names of its nearly 300 public company  clients whose files had been compromised by the attack.

Continue reading →

Neither I nor my children benefited from legacy admissions. Indeed, if anything, we were the group left behind, neither rich enough to be anywhere near the top one-tenth of one percent who enjoy privileges of real wealth, nor poor or ethnic enough to enjoy the largesse of the elite. So as far as self-interest goes, it would be mine to join in the chorus of voices condemning the sham of elite schools feigning meritocracy when, as this report of a story in the New York Times concludes, “being rich is its own qualification.” Continue reading →

In earlier days of the internet, review sites like Yelp fought against businesses buying positive reviews to bolster their online reputation. One tool they used was badging businesses with a “consumer altert” when they found a business engaging in fraudulent reviews.

“The bigger Yelp gets, the more incentive there is to game the system,” said Eric Singley, its vice president for consumer products and mobile. “These notices are the next step in protecting consumers.”

Continue reading →

With Trump indicted in Florida and New York City, and another indictment almost certainly coming in D.C. and possibly Fulton County, Georgia, if DA Fanni Willis can find the time, a lot of people are breathing a sigh of relief. Despite the two plus years of near silence, breeding wonderment as to why a Democratic attorney general hadn’t lifted a finger to do anything, the new stoic hero of the fair-weather friends of law and order, Jack Smith, is doing the job everybody thought Merrick Garland was doing in deep secrecy, but he wasn’t.

But now we’ve got him? Continue reading →

If there is any concrete claim against the current Supreme Court lineup, it’s that President Obama’s nominee, Merrick Garland, didn’t get his hearing before the Senate. While it may not have been unlawful for then-Majority Leader Mitch McConnell to game the Constitution by denying Garland his hearing, it flouted norms and the Senate’s responsibility. That he got away with it doesn’t mean it was the right thing to do. Continue reading →

Granted, it was in response to a ridiculously baseless argument. Granted, it was in a civil case. Granted, the civil case was against Donald Trump. Granted, the outcome, that the $5 million dollar verdict in favor of E. Jean Carroll was hardly excessive. Still, Judge Kaplan’s ruling is troubling.

So why does this matter? It matters because Mr. Trump now contends that the jury’s $2 million compensatory damages award for Ms. Carroll’s sexual assault claim was excessive because the jury concluded that he had not “raped” Ms. Carroll. Its verdict, he says, could have been based upon no more than “groping of [Ms. Carroll’s] breasts through clothing or similar conduct, which is a far cry from rape.” And while Mr. Trump is right that a $2 million award for such groping alone could well be regarded as excessive, that undermines rather than supports his argument. His argument is entirely unpersuasive.

Continue reading →

It was a shocking revelation, even if it’s unclear how seriously it should be taken.

Case in point: a new Newsweek poll on misgendering. In the poll—given to 1,500 eligible voters in the U.S. in early July by Redfield & Wilton Strategies—people were asked whether “referring to someone by the wrong gender pronoun (he/him, she/her) should be a criminal offense.”

A shocking percentage of younger survey respondents said that it should.

Continue reading →

Its physical plant is a dump. Its size is unmanageable. Its leadership, from the mayor to the Department of Corrections to its senior staff, has never demonstrated the will to do more than make it through another day. The district attorney with jurisdiction over it has largely turned a blind eye toward the crimes committed against prisoners. The union representing corrections officers has long been corrupt and shielded its members from consequences for their actions and inactions.

And now, the United States Attorney for the Southern District of New York is moving under a consent decree to have Judge Laura Taylor Swain, overseeing the consent decree, appoint a federal receiver to take control of Rikers Island, the primary complex of New York City jails. Continue reading →

Hans Bader raises a bill that passed with overwhelming support in the California Assembly and is now under consideration in the Senate that would authorize judges to take the race of a defendant into account in sentencing.

The bill would add a section to the Penal Code of California requiring courts, whenever they have the authority to determine a prison sentence, to “rectify” alleged racial bias in the criminal justice system by taking into account how historically persecuted minorities are affected differently than others. Continue reading →

It’s valuable for a knowledgeable person to take the contrarian view* of something that almost everyone finds unconstitutional and anathema to foundational notions of legal propriety, so it’s good that former AUSA, George Washington Law adjunct and Washington Post columnist Randall Eliason challenged the near-universal view that sentencing defendants for conduct underlying a crime for which the jury acquitted is wrong.

My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges.  There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t.  If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it.  Judges are not mere passive conduits through which prosecutors work their will. Continue reading →