Law, disrupted – Details, episodes & analysis

John is joined by Jon Ballis, the Chairman of Kirkland & Ellis, LLP, one of the world’s leading law firms with approximately 3,500 attorneys around the world.  Jon describes his path to leadership at the firm, from joining Kirkland in 2005 from another firm as an M&A lawyer without aspirations for management, to his election to the Management Committee and his elevation to Chairman in January 2020.  Jon explains Kirkland’s governance, emphasizing the firm’s flat organizational structure and the absence of many formal titles which he believes encourages organic leadership development.  He also explains Kirkland’s unique Nominating Committee system, which seeks to avoid entrenchment and favoritism by allowing members to serve on the Nominating Committee only once in their careers.  They also discuss Kirkland’s strategic focus, particularly its approach to talent management and strategy.  Jon says that the firm’s strategy is client-driven, evolving organically based on where its clients are heading, rather than adhering to a rigid, top-down plan and how this client-focused approach has led to Kirkland expanding its private equity practice to include areas like energy, infrastructure, and private equity credit.  Jon then explains Kirkland’s approach to compensation and lateral hiring, dismissing the idea that Kirkland "buys business" through offering high compensation for laterals based on their “book of business.”  He says that the firm focuses on hiring talent to meet growing client demand.  He says that Kirkland’s litigation business grossed almost $2 billion last year and operates at close to the same margins as its transactional business.  Jon then discusses the merit-based compensation system at Kirkland, which is subjective and not formulaic.  Every two years, the firm conducts a review and assigns each partner a set number of points that determine that partner’s compensation for the next two years.  Jon explains Kirkland has two classes of nonequity or income partners, one class that are on track to either become equity partners or move on and a second class of permanent income partners.  Finally, John and Jon discuss the challenges of maintaining leadership in the legal industry, including the importance of continuous improvement, innovation, and a willingness to take risks to maintain excellence.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

John is joined by three of Quinn Emanuel’s newest partners, K. McKenzie Anderson, Partner in Quinn Emanuel’s New York office; Jodie Cheng, Partner in Quinn Emanuel’s San Francisco office; and Ryan Rakower, Partner in Quinn Emanuel’s New York office. They discuss the very different paths they took to becoming partners at the firm. Ryan grew up and went to law school in New York City where, after clerking for a judge, he joined Quinn Emanuel’s New York office. His practice centers on civil commercial disputes representing private investment firms and insurance companies and he has spent his entire career at the firm. McKenzie grew up in Oklahoma, the latest in a long line of lawyers in her family, swearing that she would never become a lawyer. She worked in Moscow, Russia, for several years before eventually going to law school and starting her legal career at Quinn Emanuel’s New York office. She became a prosecutor with the U.S. DOJ for several years before returning to Quinn Emanuel where she practices in white collar criminal defense work and investigations as well as regulatory matters while working remotely from her home in Oklahoma. Finally, Jodie grew up in San Francisco in a family of engineers and became intrigued with intellectual property litigation. She spent the first four to five years of her legal career at one of the largest law firms in the world then pivoted to become a solo practitioner for four years before joining Quinn Emanuel where she does intellectual property litigation in the semiconductor and chip design, AI and machine learning, and medical device industries. They also discuss their motivations to be the best at what they do and the importance to them of working in a collaborative environment. Finally, they discuss the inherent anxieties of life as an associate and offer their suggestions to younger lawyers on how to succeed despite those anxieties.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

John is joined by Kathleen M. Sullivan, senior counsel in Quinn Emanuel’s Los Angeles office and Founding Chair of the firm’s National Appellate Litigation practice, and Derek L. Shaffer, partner in Quinn Emanuel’s Washington, DC office and Co-Chair of the firm’s National Appellate Litigation practice. Together, they discuss what appellate lawyers do: how they reverse bad trial outcomes, preserve good trial outcomes and help trial teams to make sure the trial record includes everything necessary for a successful appeal.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by a professor of Ethics and Finance at NYU’s Stern School of Business and a director of the Center for Business and Human Rights, Michael Posner. He is also joined by Julianne Hughes-Jennett, Head of Quinn Emanuel’s ESG practice and experienced litigator of business and human rights issues. Together, they discuss what we really understand the term “human rights” to mean for business and the current challenges regarding human rights implementation across the business world.

The three begin by delving into the meaning of “human rights” and their legal ramifications for business, including whether “human rights” means different things in different jurisdictions.

Michael moves the conversation towards due diligence in relation to human rights and enforcement of human rights in connection with business, noting recent legislative examples, including the Uyghur Forced Labor Prevention Act, which was created to make sure the US doesn’t support forced labor among ethnic minorities in the Xinjiang region. Julianne picks up with recent EU developments, including the Corporate Sustainability Due Diligence Directive and legislation such as the Failure to Prevent Act in France. She also posits whether the UK Bribery Act’s section 7, failure to prevent offense, could be a model for a provision for a mechanism for a failure to prevent human rights impact by the business. This could bring greater legal certainty for businesses and victims, alike.

Finally, the trio mulls over the meaning of ESG and how it has evolved since its creation around 20 years ago. Michael notes that companies often heed such guidelines cynically in the name of ROI. He also emphasizes the financial implications of social issues related to labor supply chains.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Assistant Professor of Law at Southern Methodist University, Dedman School of Law, Eric Ruben, Duane R. Lyons, a partner in Quinn Emanuel’s Los Angeles Office, and Stacylyn Doore, a partner in Quinn Emanuel’s Boston Office. Together, they discuss three main topics surrounding guns: Supreme Court Second Amendment cases, regulation at both the state and federal levels, and pending litigation. Guns and the rights of US citizens to bear arms is a hotly contested policy issue in the USA, which has only become more relevant due to the recent mass school shooting in Uvalde, Texas, and the recent New York State Rifle & Pistol Association, Inc. v. Bruen Supreme Court decision.

They begin by discussing how the Supreme Court held in Bruen ruled that the New York gun safety law at issue is unconstitutional. This law required a license to carry concealed weapons in public places and provided for discretion in the state’s provision of such licenses. Eric outlines the landscape, pre-Supreme Court decision – he touches on the lay of the land, outlining the historical context, as well as explaining how firearm regulation and control have primarily been executed at a state and local level, rather than federal, and that there has been a long history of gun control at the local/state level in the US, citing to registration requirements in the 1930s and long before. There have only been a handful of significant federal laws that would count as “gun control.” The recent bipartisan federal legislation was an exception. It was several decades earlier when the last federal gun safety law was passed.

The conversation moves on to discussing the Heller case, another US Supreme Court decision which held that the Second Amendment guarantees an individual the right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home. Duane notes that there are members of the courts that view guns and gun rights completely differently than people in large metropolitan areas and that many court decisions seem results driven. They move on to discuss the difference between where the focus should be and where the focus will actually be for future gun control regulation and litigation.

Stacylyn moves the discussion toward future applications of Heller and Bruen, noting how we’ve seen a lot of historical analysis in the cases thus far and asking how much more there is to mine and to what extent comparable historical analogs are now required in all future gun regulation cases. Eric answers by discussing the means and scrutiny approach to Second Amendment cases, explaining that once the Second Amendment is in play, the government has to find historical analogs in order to justify modern-day gun regulation. However, Eric highlights that times have changed, noting that historical analogs may not suffice given the technological advancements in the intervening centuries.

Duane moves the conversation towards whether there are any historical analogs showing that firearms were prohibited in some parts of the country. Eric notes how Britain in the 1300s had strict firearm laws, as well as other restrictions, such as Texas gun laws in 1871, which banned the public carry of pistols and public weapons. John touches on age limitations being a potential appropriate response in light of Bruen, as well as increased reliance on mandatory training and designation of sensitive areas. 

Finally, the conversation comes to a close, with Duane discussing ghost

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by Lori Odierno, the lead lawyer and business affairs negotiator across WME’s sports division, to talk about the ability of college athletes to exploit their name, image, and likeness (NIL) rights.

The conversation begins by discussing how the phenomenon of college athletes being able to exploit NIL rights resulted from antitrust litigation against the NCAA and a Supreme Court ruling that did not address NIL rights. They explain how the Supreme Court struck down NCAA restrictions on the extent to which colleges could reimburse athletes for educational expenses, and how that decision became the impetus for the NCAA to pivot its policy on NIL rights in a sweeping and unexpected way. 

Together, they dive into how the business and legal framework have evolved into, as Lori described it, “a web of complicated and ambiguous rules and laws” that are very hard for student-athletes to navigate. Lori explains that when the NCAA removed its restrictions on NIL rights, it set new rules for athletes to maintain eligibility. One of those rules requires athletes to comply with state laws concerning NIL rights. However, this can be difficult, as 24 states adopted NIL legislation or executive orders, and those laws were far from uniform.  

The discussion moves on to examples of how law varies across states, including California and Texas, two of the richest recruiting territories in the country. They touch on how California encourages and promotes high school students engaging in NIL activity, whereas Texas prohibits them from doing so. In other states, an athlete’s NIL rights might be restricted by the state association for a given sport. In those states, if an athlete is at high school that is a member of the state association for a particular sport, the athlete may lose eligibility for engaging in NIL activity based on the state association’s rules.

Lori and John also discuss the restrictions in some states that NIL contracts cannot extend past an athlete’s college eligibility. They observe that the intent behind such restrictions is likely to prevent large, powerful brands from locking young athletes into low-value long-term contracts early in their careers before they’ve established their personal brands. However, they also discuss the anomaly that these restrictions might prevent athletes from monetizing their NIL rights after their playing careers are over, but when their name, image, and likeness still have value.

The discussion then turns to how agencies now analyze their potential opportunities with an athlete, by looking at NCAA rules, the laws of any states that might be involved, and the individual school’s policies. Lori and John note that despite the recent changes to NIL rights, athletes still cannot get paid to play a sport or for achieving certain benchmarks while playing.

Lori and John then explore the arrangements that some booster clubs have at universities where they create collectives that provide NIL opportunities for athletes. These collectives are currently under investigation by the NCAA and vary widely in how they operate. The two compare collectives that offer the same income opportunities to every athlete and those that offer more to certain star players than to others. They also discuss the potential that these differently structured collectives have for affecting team chemistry over time. They explain that while boosters may form collectives for exploiting NIL rights, the schools the athletes attend cannot form such collectives as that would violate rules against offering students financial inducements.

Finally, John asks

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by the Mayor of New York City, Eric Adams, as well as the Mayor of Miami and Counsel to Quinn Emanuel, Francis Suarez. Together, they discuss legal issues in crypto-currencies, low-income housing, and homelessness.

The conversation begins with Mayor Suarez touching on the legal issues related to receiving compensation in crypto rather than legal tender, and discussing the use of applications that have the option to automatically or periodically convert money into crypto. Mayor Suarez also explains how SEC oversight requires that public officials avoid advocating for the use of crypto in any way, shape, or form. Mayor Adams provides the perspective of New York City, which states that people cannot be compensated directly in crypto, but allows them to convert to crypto after receiving the actual paycheck. He adds that his goal is to get to the point where city employees can be paid directly in crypto.

John and both mayors then discuss the legal offices that serve their respective cities, including the size of the offices, the complexity of the issues they face, and their use of outside counsel.  They then focus on the challenging legal issues involved in creating low-income housing. Mayor Adams notes that zoning changes and location are the biggest challenges faced by the department for housing and other government departments, with many people not wanting new developments in their community. He observes that all of these issues must be navigated in the context of New York’s Uniform Land Use process. Mayor Suarez talks about a housing boom in Miami, which comes with its own legal issues, such as increased rental prices and Community Benefits Agreements, which allow developers to increase their zoning if they give back to the community. This raises constitutional issues involving property rights if the government tells a developer that the only way they can get more favorable zoning is if they make more of the building income accessible.

The discussion then turns to the issue of rent control, which is prohibited in Florida, but long-established in New York. The two mayors discuss the pros and cons of rent control as a policy matter and the procedures New York City has in place to help it run properly.

Finally, the episode turns to legal issues surrounding homelessness. Mayor Adams begins the conversation by touching on the fact that homelessness has unfortunately been a problem that New York City has faced for many years, which has only worsened due to COVID-19. Together, they chew over the legal process surrounding improving conditions for the homeless, with Mayor Adams highlighting the issue of how much say those homeless people who suffer from serious mental illnesses should have in determining where they live. He notes that there is a vocal minority who believe that the government should have no input in these decisions.

Mayor Suarez then talks about the Miami city perspective where the local government was sued by the ACLU in the Pottinger case with the result that the police cannot arrest a person for being homeless. Mayor Suarez details how Miami is trying to adjust to the Pottinger decision through a new homelessness policy, which created a decentralized set of homeless assistance centers where people could be housed, receive drug and mental health treatment, and receive vocational training to be reintegrated into society. Mayor Suarez goes on to explain how this policy resulted in the federal court lifting the injunction that had been in place as a result of the Pottinger case.

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Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

In this episode of Law, disrupted, John is joined by distinguished lawyer, professor, author, and former partner at Quinn Emanuel, Susan Estrich. Together they discuss the legal issues surrounding women’s rights, Roe v. Wade, gun rights, and the hijacking of ‘Me Too’.

The podcast was recorded on the day the Supreme Court announced its decision overturning the 50-year-old precedent of Roe v. Wade and allowing individual states to determine whether abortion is legal or not. As a long-time advocate for women’s rights and veteran of many political campaigns, Susan expressed that she had seen this decision coming, but she recognized that many were surprised by the decision because in addition to overturning 50 years of precedent, she believes that roughly 60/70% of the US population supports Roe v. Wade now, as opposed to 40 years ago when the decision did not have that level of support. 

Together, John and Susan discuss how precedents have been overturned in the past, but human rights and individual liberty have been expanded in the process. They then contrast the current situation in which, for the first time, an older generation in the US will have more individual rights than younger generations. They then go on to discuss how access to abortion will depend on wealth, socioeconomic status, and where one lives, with the new laws ignoring the rights of lower class, vulnerable women, and teenagers, but not affecting upper-class and wealthy women.

The conversation then turns to the Supreme Court’s decision earlier in the week striking down the New York law on carrying handguns in public. The two discuss how the Court’s ruling ran counter to public opinion in the wake of the horrendous events in Uvalde, Texas. Finally, John and Susan examine the rationale set forth in the Heller opinion that first recognize an individual’s right to bear arms.  

The conversation moves to what Susan describes as the ‘Hijacking of Me Too.’ Susan passionately argues that Amber Heard was wrong to call the verdict of the Johnny Depp v. Amber Heard trial, “a defeat for the whole Me Too movement.” She opines that the verdict in that case was a defeat for Amber Heard individually rather than for the movement as a whole. She also observes that women who claim to represent the movement, but get caught lying about their individual cases might discourage legitimate victims from coming forward with their own stories. 

The discussion turns to how the owner of the Washington Commanders was pilloried in the press for hiring his own private investigator to look into allegations of sexual misconduct made against him. The two discuss the dangers to the legal system that will ensue if investigating allegations is considered proof of guilt and even rumors of misconduct against a prominent figure become impossible to survive.

The two discuss the role that confidentiality provisions have in settling misconduct claims and how if confidentiality provisions are not respected, defendants have little incentive to settle. They touch upon California’s recent legislation prohibiting employers from requiring employees to arbitrate harassment claims and the effects that will have on settlements.

They discuss the Bill Cosby and Harvey Weinstein cases and the danger of the cases as precedent. In particular, they examine the dangers of admitting into evidence everything from a man’s sexual past as well as a presumption that NDAs are automatically admissible. They then speculate whether an accuser’s previous history of making accusations should also be admissible. 

Finally, John and Susan discuss

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

Major universities are essentially huge businesses with massive infrastructure and numerous employees. They are large housing, food, athletic teams, and healthcare providers and are engaged in construction projects. All public and private roles within universities that receive federal funds are subject to government regulation with the same kinds of human resources problems as regular businesses. Legal issues besiege many universities; unlike corporations, which are used to a regulatory environment, universities are often not well equipped or staffed to address the myriad of legal issues they are facing now.

 In this episode of Law, disrupted, John is joined by American lawyer and academic administrator Michael K. Young, and partner at Quinn Emanuel’s Los Angeles office, former Ambassador Crystal Nix-Hines. Together they discuss the legal issues surrounding higher education.  

Firstly, they discuss issues surrounding the changing landscape of universities' role in protecting their students and what those institutions are doing to protect themselves from legal cases and liabilities they are sent. They briefly touch on the cases against Penn State regarding sexual harassment. Does the changing landscape raise questions about the fine line between universities' duty to protect students on and off-campus incidents?

 This issue leads to John asking whether the political sphere plays a role in this. Former Secretary of Education, Betsy DeVos, changed the law, shifting away from the law created by the Obama administration around sexual harassment, with universities highlighting concerns that Secretary DeVos’s standards made it more difficult for students to pursue claims against their alleged offenders.

 Together they touch on the issues surrounding higher education and sports teams. Athletics budgets have been reduced in recent years, paired with the question of equality of opportunity for all genders, which has made it difficult to pinpoint what equality looks like from a legal point of view. 

They turn to legal issues surrounding diversity in admissions, and standardized tests, with litigation on this going back a decade. They discuss why the mission of equality is so vital to modern universities and consider the Supreme Court’s upcoming consideration of the lawsuits brought against the admissions policies of Harvard and the University of North Carolina. They debate whether the Supreme Court is likely to overturn or reaffirm its prior holding in Grutter v. Bollinger, which upheld the affirmative action admissions policy of the University of Michigan Law School. Will the Court decide that race cannot be considered a factor in admissions at all?

Finally, John wraps up the podcast by asking about the types of issues being litigated in universities right now, with the majority of claims coming from the COVID-19 pandemic; 370 suits against 200 universities as a result of universities shifting to remote learning during the pandemic lockdowns.

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Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

One of the most difficult tasks facing our legal system is determining the compensation to provide individual victims of many of the large-scale tragic events that our country has faced in recent years.  In this episode of Law, disrupted, John is joined by attorney Kenneth (Ken) Feinberg, a mediator extraordinaire who has settled some of the most high-profile mass tort and disaster disputes the US legal system has ever seen as well as managing the claims administration programs for terrible events that did not result in litigation. He has managed the victim compensation funds in high-profile tragedies including the 9/11 Victim Compensation Fund, the BP oil spill fund, and the victim assistance funds established in the wake of the Boston Marathon bombings and the Sandy Hook shooting. Mr. Feinberg also resolved victim compensation issues in the General Motors ignition switch cases, the VW diesel emissions cases, the Boeing 737 MAX crash cases, the Eli Little DES cases, the Shoreham Nuclear Plant cases, Agent Orange, asbestos, among many others.  

The conversation begins with exploring the ways that cases come to Mr. Feinberg, including defendants who realize they need to resolve a situation but first have to resolve how to divide the money they have available, plaintiffs who wish to avoid years of uncertain, costly litigation or when the government allocates money to compensate victims of a tragedy without any adversarial proceedings at all.  The two then discuss the need to establish consensus on clear procedures for the mediation before turning to the merits of the dispute and why 90 percent of cases settle on the second day of mediation.

Mr. Feinberg and John then explore the extremely emotional and complicated problem of allocating the money among hundreds or thousands of claimants in these cases.  In particular, they explain the crucial role that transparency of the process plays in assuring claimants that there is no hidden agenda in how the proceeds will be divided up.  They detail how issues of criteria of eligibility, the methodology for calculating damages, proof requirements, and the right to a hearing all must be established at the outset for a settlement to succeed.  They then turn to objective ways to calculate damages for the death of a loved one and injury damages for large numbers of claimants without evaluating medical charts for every claimant.

The two men then explore how these principles played out in high profile cases including the Boston Marathon bombings, the Pulse Nightclub attack, the Virginia Tech shootings, the 9/11 fund and the BP oil spill.  They explain how, in some cases, the number of potential cases might require hiring thousands of claims adjusters to determine which claimants are eligible for compensation and to screen for fraud as well as the need for a procedure to hear the appeals of those who believe their compensation under the process is not adequate.  Mr. Feinberg also explores in detail why, despite the magnitude of the disaster, the speed at which the families of the affected would receive the payment is vital in maintaining trust and belief in the entire process.

Together, Mr. Feinberg and John examine potential court oversight to the process including situations such as 9/11 where there was no such oversight, identifying comparisons with the examples of the BP oil spill and the General Motors car recall. Throughout the podcast and especially at the end, Mr. Feinberg provides specific examples of the devastating personal stories he has heard from the victims of these horrific events and they discuss the emotional toll claims can and have had on Ken.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi