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3. Which firms, legal groups, law profs signed…

Law Firms

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

By Debra Cassens Weiss

April 8, 2025, 8:52 am CDT

Amicus briefs supporting Perkins Coie are piling up in its challenge to a punitive order against the law firm signed by President Donald Trump.

The briefs have been filed by more than 500 firms, more than 360 law professors, nearly 350 former judges and a “cross-ideological group” that includes the American Civil Liberties Union and the Institute for Justice, a nonprofit public interest firm, report Law.com (here and here); Bloomberg Law; Reuters (here and here); Law360; and press releases by Law Forward, a nonprofit organization, and the ACLU.

The firm brief is mostly signed by smaller and midsize firms. According to Law.com, larger and well-known firms that signed are:

  • Arnold & Porter Kaye Scholer

  • Covington & Burling

  • Crowell & Moring

  • Davis Wright Tremaine

  • Fenwick & West

  • Foley Hoag

  • Freshfields US

  • Hanson Bridgett

  • Jenner & Block

  • Manatt, Phelps & Phillips

  • Munger, Tolles & Olson

  • Patterson Belknap Webb & Tyler

  • Stoel Rives

  • Susman Godfrey

  • Wilmer Cutler Pickering Hale and Dorr

Perkins Coie sued after Trump issued an executive order that suspended Perkins Coie’s security clearance, limited access to federal buildings by its lawyers, blocked government hiring of firm employees, and required federal agencies to take steps to terminate contracts with the firms and their clients—if the firm provided services in connection with the client contract.

WilmerHale and Jenner & Block also sued after they were targeted with executive orders. Covington & Burling was also targeted in a more limited executive order; it has not filed suit.

As of April 3, four other firms reached deals with Trump to avoid punitive measures. The deals included pledges of pro bono support on issues supported by Trump and the firms.

A Perkins Coie spokesperson told Reuters that the firm was grateful to the firms that signed the amicus brief “in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

Above the Law is compiling firms’ reactions to actions by the Trump administration in its “BigLaw Spine Index.” Law.com has published a timeline of the executive orders and firms’ response to them.

The legal advocacy groups that signed the ACLU brief are:

  • The ACLU

  • The ACLU of the District of Columbia

  • The Cato Institute

  • The Electronic Frontier Foundation

  • The Foundation for Individual Rights and Expression

  • The Institute for Justice

  • The Knight First Amendment Institute at Columbia University

  • The National Coalition Against Censorship

  • The Reporters Committee for the Freedom of the Press

  • The Rutherford Institute

  • The Society for the Rule of Law Institute

Judges who signed an amicus brief include retired state supreme court and appellate justices and former federal judges. Among them are:

  • Retired Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia

  • Retired Judge Diana Gribbon Motz of the 4th Circuit at Richmond, Virginia

  • Retired Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit

  • Retired Judge Thomas I. Vanaskie of the 3rd Circuit at Philadelphia

  • Retired U.S. District Judge Shira A. Scheindlin of the Southern District of New York

Law professors who signed the professor brief are from law schools that include Harvard Law School, Yale Law School, Stanford Law School, the University of California, the Georgetown University Law Center, the Northwestern University Pritzker School of Law, Cornell Law School, the New York University School of Law, the University of Chicago Law School, Columbia Law School and the University of Michigan Law School.

Professors who signed the brief include Michael C. Dorf of Cornell Law School, Mark A. Lemley of Stanford Law School, Owen Fiss of Yale Law School, Harold Hongju Koh of Yale Law School, Leah Litman of the University of Michigan Law School, Eugene Volokh of the University of California at Los Angeles School of Law and Pamela S. Karlan of Stanford Law School.

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3. Federal appeals judge, 97, loses bid to unseal…

Judiciary

Federal appeals judge, 97, loses bid to unseal documents about her suspension

By Debra Cassens Weiss

February 4, 2025, 9:30 am CST

Federal law does not permit a 97-year-old federal appeals judge to unseal documents about her suspension absent consent of the chief judge of her circuit, the U.S. Court of Appeals for the District of Columbia Circuit ruled Monday.

Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit wanted to unseal the documents in an appeal of a federal judge’s July ruling dismissing her challenge to the disability law governing her case, Law360 reports.

Newman was suspended in September 2023 for refusing to participate in medical evaluations to determine her mental fitness.

Newman had told the D.C. Circuit that the only confidential information in the documents concern her medical history, Law360 reported. The Federal Circuit countered that the documents were of “questionable relevance” and will soon be released with redactions.

Newman was investigated after evidence was said to show “troubling signs” of her cognitive decline. Her expert, an editor of the principal neurosurgery textbook, said Newman had an “extraordinarily high level of cognitive ability” and appears to be a “super-ager.”

The D.C. Circuit said the Judicial Conduct and Disability Act generally does not permit disclosure of records related to investigations unless written consent is obtained from the judge under investigation and the chief judge of the relevant circuit.

See also:

97-year-old federal appeals judge should be suspended another year for exam refusal, panel says

Federal appeals judge, 97, who refused to cooperate in fitness probe loses challenge to disability law

Investigations of federal judges are rare and should happen more, former clerk says

Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe

Speaking at ABA meeting, federal appeals judge, 96, doesn’t address her suspension but mentions opinion pace

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3. Can Trump constitutionally install his nominees…

Constitutional Law

Can Trump constitutionally install his nominees with recess appointments? Would Scalia be ‘aghast’?

By Debra Cassens Weiss

November 18, 2024, 11:58 am CST

Updated: Can President-elect Donald Trump use recess appointments to install his Cabinet nominees?

A 2014 U.S. Supreme Court decision that blocked recess appointments by former President Barack Obama shows a path forward. But some commentators are suggesting that conservatives on the current court could repudiate the opinion and narrow that path.

Trump raised the idea of recess appointments in a post on X, formerly known as Twitter, writing Nov. 10 that any new U.S. Senate leader must agree to recess appointments.

“We need positions filled immediately!” Trump wrote.

Article II, Section 2 of the U.S. Constitution provides that a president nominates officers of the United States “with the advice and consent of the Senate,” according to an overview by the Guardian.

The recess appointments clause in Section 2 provides, however, that a president “shall have power to fill up all vacancies that may happen during the recess of the Senate” by granting commissions that expire at the end of the next session.

Trump’s plan could play out with a concurrent resolution by the U.S. House of Representatives to adjourn the House and Senate, according to Edward Whelan, a senior fellow at the Ethics and Public Policy Center, a conservative Washington, D.C.-based think tank and advocacy group.

The Senate could adopt the resolution, with an adjournment of at least 10 days, during which Trump makes his recess appointments, Whelan wrote at the National Review.

An “obscure and never-before-used provision of the Constitution,” Article II, Section 3, could be used if the Senate and the House fail to go along with Trump’s call for adjournment, according to an op-ed in the Washington Post by Whelan. The provision states that “in case of disagreement” between the houses of Congress “with respect to the time of adjournment,” a president “may adjourn them to such time as he shall think proper.”

Trump would then call his adjournment lasting at least 10 days and would make his recess appointments during the intrasession recess.

And if there is a legal challenge, the 2014 Supreme Court decision would come into play, according to a post at Balls and Strikes by Madiba K. Dennie, an attorney, a columnist and the author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back.

The decision, NLRB v. Canning, held that Obama lacked the power to make recess appointments during a three-day recess because the period was too short. Looking to historical practice, the opinion by then-Justice Stephen Breyer said a recess of less than 10 days is “presumptively too short” for a recess appointment.

At the time, the Senate was holding pro forma sessions every Tuesday and Friday in an effort to block recess appointments by Obama.

A concurrence by then-Justice Antonin Scalia would have gone further than Breyer’s opinion, according to Balls and Strikes. Scalia said recess appointments can only be made between formal intersession breaks of Congress—which are the breaks between legislative sessions—and only when vacancies happen during those breaks.

Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito joined Scalia’s opinion.

The Supreme Court might adopt Scalia’s position, Whelan wrote in another post at the National Review. Roberts, Thomas and Alito already indicated that they agree with Scalia’s concurrence.

And “it’s a very safe bet” that Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett would agree if “looking at the issues afresh,” Whelan wrote. They may not be so inclined now, however, because of stare decisis or justiciability issues.

If Scalia was alive today, Whelan wrote in the Washington Post, he “would be aghast at the notion” that a president could call an intrasession recess for bypassing Senate consent to nominations.

The debate over recess appointments came amid Trump’s plan to nominate former U.S. Rep. Matt Gaetz of Florida as the U.S. attorney general. Gaetz withdrew Thursday.

Hat tip to the Volokh Conspiracy and How Appealing.

See also:

House speaker moves to block Senate Judiciary Committee from seeing Gaetz ethics report

Gaetz resigned days before ethics investigation report expected

Updated Nov. 21 at 4:15 p.m. to report on the nomination withdrawal of former U.S. Rep. Matt Gaetz of Florida.

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3. Judge cuts Quinn Emanuel’s $185M fee, an…

Law Firms

Judge cuts Quinn Emanuel’s $185M fee, an amount deemed ‘astronomical’ by objectors

By Debra Cassens Weiss

October 14, 2024, 1:12 pm CDT

A federal judge has slashed a $185 million fee that she initially awarded to Quinn Emanuel Urquhart & Sullivan, an amount that translated to about $18,500 per hour for its work in an insurance class action lawsuit.

U.S. Court of Federal Claims Judge Kathryn C. Davis had initially awarded Quinn Emanuel 5% of a $3.7 billion judgment for about 10,000 hours of work. In an Oct. 10 opinion, she reduced the law firm’s claimed hours by 15% and reduced the award to 2.5% of the recovery, amounting to $92.4 million.

Davis reduced the award after the U.S. Court of Appeals for the Federal Circuit said she failed to properly conduct a “lodestar cross-check.” The cross-check considers hours worked, billing rates and a risk multiplier to compensate for the risk of no or reduced recovery.

Reuters and Law360 have stories.

Quinn Emanuel sought the attorney fee for suing on behalf of two classes of health insurers in litigation under the Affordable Care Act. The insurers said the federal government did not abide by its promise to pay them for losses incurred for the first three years of participation in the law’s insurance marketplace.

Health insurers who opposed the fee amount said it was “astronomical,” according to Reuters. They said Davis should award between $11.77 million and $23.14 million.

Davis said the amount requested by objecting insurers was “so low as to disincentivize attorneys from pursuing class actions.” She said Quinn Emanuel “pioneered” a “novel, winning legal theory” based on “an untested argument.”

After Quinn Emanuel sued, copycat suits followed. They led the U.S. Supreme Court to affirm Quinn Emanuel’s theory, Davis said. The novelty and complexity of Quinn Emanuel’s claim, along with the risk of nonpayment if the litigation didn’t succeed, justify a multiplier of 9.56, Davis said.

The multiplier is calculated by multiplying a firm’s hours by their rates. Davis used the reduced hours and Quinn Emanuel’s 2020 rates to calculate the multiplier.

Quinn Emanuel had obtained “judgment preservation insurance” on nearly $167 million of the $185 million fee award, Bloomberg Law reported in March. Typically, judgment preservation insurance is used to preserve a portion of large awards from being overturned on appeal.

The case is Health Republic Insurance Co. v. United States.

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3. Court scolds Weil partner for brief found…

Appellate Practice

Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document

By Debra Cassens Weiss

February 20, 2024, 1:34 pm CST

A partner with Weil, Gotshal & Manges apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.

The partner, Mark Perry, would have exceeded limits by more than 1,300 words if he had been allowed to “incorporate by reference” nearly 2,000 words from a prior brief in a related case, the Federal Circuit said in its Feb. 16 order, issued sua sponte.

Reuters, Law360 and IPWatchdog have coverage.

When opposing lawyers objected to the attempt to incorporate the material by reference, citing the prior case involving Weil, Perry “chose to do nothing,” the Federal Circuit said.

The better course, when it becomes apparent that a lawyer has violated a court order, would be to bring it to the court’s attention and withdraw the improper argument, the Federal Circuit said.

Instead, Perry had argued that the Federal Circuit never ruled on incorporating an argument by reference when it involves the same party’s brief in a companion appeal.

The position “is unreasonable given this court’s prior opinions,” the Federal Circuit said.

“Since appellee has made this argument, it gets this order,” the appeals court said.

Perry had argued that his intent was to “enhance efficiency,” “streamline the briefing,” and “save the time and resources of the court.” The Federal Circuit said those goals were not served.

“Requiring the court to cross-reference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count. But we accept this mistake was made in good faith,” the appeals court said.

The prior case involving Weil is Microsoft Corp. v. DataTern Inc., a 2014 decision. The Federal Circuit also cited a 2023 decision, Medtronic Inc. v. Teleflex Life Sciences Ltd.

“We hoped not to have to write this order,” the appeals court said. “Rule 28 of the Federal Rules of Appellate Procedure seems clear. Microsoft seems clear. Medtronic seems clear. These cases hold it is improper to exceed the word count through incorporation by reference.”

According to coverage by IPWatchdog, Rule 28 limits most references in appellate briefs to documents that are part of the intrinsic record of the case. Parties may also adopt part of another brief by reference in appeals with multiple appellants or appellees.

Perry’s incorporation by reference was part of a footnote.

“In retrospect, it would have been better not to have included it,” he said in his supplemental brief arguing against sanctions.

The Federal Circuit did not sanction Perry but said “future litigants should appreciate” that future violations will likely result in sanctions.

The appeals court’s order was issued in in patent infringement litigation between Comcast Cable Communications and the Promptu Systems Corp., a speech-recognition technology company. Perry represents Comcast in four related appeals.

Perry and Weil did not immediately respond to an ABA Journal email requesting comment.

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3. Federal appeals judge, 96, fails to overturn…

Judiciary

Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe

By Debra Cassens Weiss

February 7, 2024, 3:32 pm CST

A 96-year-old federal appeals judge who refused to cooperate with medical testing to determine her mental fitness for the bench has failed to persuade a reviewing body that she is entitled to resume deciding new cases.

The U.S. Judicial Conference’s Committee on Judicial Conduct and Disability ruled Wednesday against Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit.

Newman was suspended from hearing new cases for a year in September 2023. The judicial council of the Federal Circuit imposed the suspension because Newman refused to submit to medical evaluations, provide medical records and sit for an interview. Newman had cited the opinions of her doctors, who say she is fit for the job.

The Committee on Judicial Conduct and Disability affirmed the judicial council’s order.

The committee rejected Newman’s argument that the case should have been moved to another circuit, finding that the transfer decision is discretionary. It rejected Newman’s argument that rule violations by the council justified her failure to cooperate. And it rejected her contention that she was denied due process.

“Here, Judge Newman was afforded all the process she was due under the rules,” the committee said.

The committee also cited “voluminous evidence” justifying the order for medical testing. Affidavits and Newman’s emails illustrate interactions “that suggest memory loss, confusion, lack of comprehension, paranoia, anger, hostility, severe agitation and an inability to perform tasks that Judge Newman previously could perform with ease,” the committee said.

The committee also concluded that the one-year suspension of new case assignments, subject to renewal, was appropriate.

“Although the sanction is subject to renewal, unlike other suspensions, Judge Newman has the power to trigger reconsideration or modification if she decides to cooperate,” the Feb. 7 opinion said.

Law360, Bloomberg Law and Reuters have coverage of the opinion.

Bloomberg Law included a comment from Newman’s lawyer, Greg Dolin of the New Civil Liberties Alliance, a nonprofit civil rights organization.

“Obviously, we’re disappointed, but we intend to continue to press our claims” in a separate federal lawsuit pending in Washington, D.C., Dolin said.

The suit challenges the constitutionality of the Judicial Conduct and Disability Act, which governs the proceedings against Newman.

Dolin said Newman is prepared to take her case all the way to the U.S. Supreme Court, if necessary.

See also:

“Speaking at ABA meeting, federal appeals judge, 96, doesn’t address her suspension but mentions opinion pace”

“Investigations of federal judges are rare and should happen more, former clerk says”

“Federal circuit judge, 95, flunked security training, displayed hacking paranoia, exam order alleges”

“Lawyer for federal appeals judge barred from new cases finds orders ‘incredible’ and ‘stunning’”

“Federal appeals judge should be suspended for failing to cooperate in mental fitness probe, report says”

“How can aging judges know when it’s time to hang up the robe?”

“Weekly Briefs: 96-year-old judge must mediate suit to keep job; DOJ reverses stance on Trump shield”

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3. Quinn Emanuel disclosure order highlights…

Law Firms

Quinn Emanuel disclosure order highlights relatively new product: judgment preservation insurance

By Debra Cassens Weiss

January 31, 2024, 3:39 pm CST

Quinn Emanuel Urquhart & Sullivan must disclose terms of judgment preservation insurance that it allegedly bought before distributing a $185 million fee award to partners, according to a U.S. Court of Federal Claims judge.

In a Jan. 30 opinion, U.S. Federal Claims Judge Kathryn C. Davis ordered Quinn Emanuel to disclose the policy document but denied a request for an accounting and safekeeping of the funds, report Reuters and Bloomberg Law.

A group of health insurers that objected to the legal fee had sought the information.

Davis ruled after the U.S. Court of Appeals for the Federal Circuit vacated the $185 million award because she failed to properly conduct a “lodestar cross-check” that considers hours worked, billing rates and a risk multiplier to compensate for the risk of no or reduced recovery. The appeals court said the fee award had an implicit multiplier that was “outside the mainstream” and ordered Davis to reassess the amount.

The award translated to an hourly fee of about $18,500, according to previous coverage of the case.

Bloomberg Law called judgment preservation insurance “a relatively new area of litigation finance” that is becoming more popular. Typically, it is used to preserve some portion of large awards from being overturned on appeal, but details of such polices are mostly under wraps.

A Bloomberg Law article written by an outside contributor described judgment preservation insurance, known as JPL, as “appellate risk insurance.” The insurance can be obtained by a party or a litigation funder, and it kicks in after a judgment is final with no further possibility for appeal.

“It may insure all of the judgment, or it may be targeted at a specific legal issue that is challenged on appeal, such as attorneys’ fees or statutory damages,” the contributed article reports.

Davis said she was ordering the policy disclosure in the interest of transparency. She also said the policy terms would be relevant on remand “if the policy provisions are inconsistent with the court’s objective ‘to ensure an overall fee that is fair for counsel and equitable within the class.’”

Quinn Emanuel received the $185 million fee award in its representation of two classes of health plan insurers in litigation under the Affordable Care Act. The insurers said the federal government did not abide by its promise to pay them for losses incurred for the first three years of participation in the law’s insurance marketplace. The litigation settled for $3.7 billion, and the $185 million represented 5% of the award.

The case is Health Republic Insurance Co. v. United States.