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Judiciary

Insurance case is ‘but a speck in the recesses of interstellar space,’ high-profile appeals judge writes

By Debra Cassens Weiss

April 28, 2025, 3:07 pm CDT

In a span of less than a week, a conservative federal appeals judge has written two opinions that are getting attention—for taking a tough stand against the mistaken deportation of an immigrant in one case and for waxing philosophical in another case.

In an April 17 opinion, Judge J. Harvie Wilkinson III took the Trump administration to task for “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process.”

Wilkinson wrote the “blistering” opinion for the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, in the case of Kilmar Armando Abrego Garcia of Maryland, according to the New York Times.

Abrego Garcia was deported to a prison in El Salvador in Central America because of an “administrative error.” The case is Abrego Garcia v. Noem.

Now, Wilkinson is getting attention once again for an April 23 opinion in an insurance dispute involving a man on a lawn mower struck and killed by an underinsured motorist, according to Above the Law and the Judicial Notice newsletter at Original Jurisdiction.

The 4th Circuit held that the man’s estate was entitled to $150,000 under the plain terms of the man’s underinsured motorist coverage—and nothing more.

Wilkinson engaged in “existential, metaphysical musings” at the end of his opinion, according to Judicial Notice.

Here is what Wilkinson wrote: “What after all does it matter? A single, seemingly ordinary, rather technical insurance case. One among the many hundreds of rulings judges make each year.

“What does it matter? A case but a speck in the recesses of interstellar space and in the four-plus billion years since our solar system’s birth. What does it matter, this case deserted by both space and time?

“To be human is to live in the here and now. This small case extracts courageous meaning from the vast impersonality in which it resides. Its immediacy confounds infinity; its passions light the dark. We have given it our best; the litigants have given it their best. The trial court has done the same. We do not overlook for a moment the tragic passing of the insured but neither can we ignore the contract under South Carolina law that defines the insurer’s obligation.”

The insurance case is Owners Insurance Co. v. Walsh.

Wilkinson, 80, was appointed to the 4th Circuit by former President Ronald Reagan, the New York Times reports in a story about his background. He is the “son of a patrician Virginia banker,” an Army veteran and a law grad of the University of Virginia.

He delayed his legal education after one year to unsuccessfully run for Congress in 1970 as a Republican. After law school, he worked as a law professor and in the U.S. Department of Justice.

On the bench, the New York Times reports, Wilkinson has “a long track record of conservative rulings under his belt, having criticized rulings establishing abortion rights while writing approvingly of a broad conception of presidential power.”

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3. Federal judge will no longer tolerate lawyers’…

Trials & Litigation

Federal judge will no longer tolerate lawyers’ barbed briefs and ‘expletive-laden phone calls’

By Debra Cassens Weiss

December 12, 2024, 9:00 am CST

A federal judge in Seattle is fed up with “hyperbole and bluster” in a lawsuit alleging that State Farm failed to pay full policy benefits to homeowners after a house fire.

Lawyers “traded barbs in their briefs and during oral argument” about lack of professionalism and motives, offering competing accounts about who is to blame for a breakdown in communications, said U.S. District Judge Jamal N. Whitehead of the Western District of Washington in a Dec. 4. order. Whitehead was appointed by President Joe Biden.

Law360 has the story.

No matter which story is to be believed, the lawyers’ actions fell short of the required collegiality standard, Whitehead said.

“Expletive-laden phone calls, hang-ups, backing out of prior agreements without explanation, and misleading emails purporting to ‘memorialize’ phone calls demean the integrity of the legal process and show disrespect to all concerned, including the court in having to resolve petty disputes,” Whitehead said in his order.

“Let it be clear: The court will not tolerate such conduct moving forward.”

Whitehead scolded the lawyers before ruling on the plaintiffs’ requests for financial information from State Farm. The plaintiffs hope to learn whether the insurer incentivized claim handlers to place their personal financial gain over the interests of policyholders.

“Setting aside the parties’ hyperbole and bluster,” the communications submitted into evidence show that the parties are at an impasse, Whitehead said. The judge allowed discovery on the incentives program but narrowed the documents that should be produced.

Law360 listed the lawyers for the plaintiffs as Heather N. Derenski of Cedar View Law and Karl E. Malling. The lawyer for State Farm is James D. Hicks of Sinars Slowikowski Tomaska.

None of the lawyers immediately responded to ABA Journal emails seeking comment. Nor did they respond to messages left in voicemails or with law firm personnel.

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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. Former FDIC lawyer who once worked in BigLaw…

Criminal Justice

Former FDIC lawyer who once worked in BigLaw pleads guilty in child-exploitation case

By Debra Cassens Weiss

January 25, 2024, 1:21 pm CST

A lawyer who worked in the general counsel’s office at the Federal Deposit Insurance Corp. pleaded guilty Tuesday in connection with his participation in two online groups that exploited prepubescent girls.

Mark Black, 50, of Arlington, Virginia, pleaded guilty to one count of conspiracy to produce child pornography and one count of coercion and enticement, according to a Jan. 23 press release from the U.S. Department of Justice. The mandatory minimum sentence is 15 years in prison.

Black participated in online groups that tried to find prepubescent girls online and to persuade them to livestream themselves engaging in sexually explicit conduct, according to the press release. Members of the online groups would secretly record the girls and share the videos with each other.

Publications covering the guilty plea included Law.com, Law360, the Wall Street Journal and CNBC.

Black was an employee with the FDIC since 2013, according to Law.com. Most recently, he was a special counsel in the office of the general counsel, his LinkedIn profile said. Before that, he was an attorney at Steptoe for 12 years. He is also a former president of the Arlington Aquatic Club.

The FDIC said in a statement it was “deeply disturbed and shocked to learn of the allegations.” The alleged conduct was “not related to the FDIC and didn’t involve FDIC devices and systems,” the statement said.

A court filing said Black voluntarily began counseling with a sex-offender treatment provider after a June 6 raid on his home, according to CNBC. The provider said Black was “an excellent candidate for continued outpatient treatment.”