Winners and losers in America's opioid era

       As background on the opioid era, please read this post. In summary, three decades ago, pharmaceutical companies recreated the business model that the British used in 19th century China. Except this time, it was American customers instead of Chinese ones. And they didn't use the imperial British navy to fight those standing in their way; they used lobbyists, regulators and lawyers.

       If you have time, please also read or watch Dopesick, a series about how pharmaceutical companies started America's opioid crisis.

       And I use the word America's purposely. Dopesick recounts how pharma companies tried to execute their plan in Europe -- but were rebuffed by European regulators. There is one memorable scene where a top pharma executive becomes angry after learning of Germany's final rejection. As you can see below, opioid deaths are relatively rare in European countries. (For a detailed analysis of the differences between the United States and Europe with respect to opioids, see this OECD report.)

       I've written about O'Melveny's belief that a job in the United States government is something to be "monetized" for your own personal benefit (links one, two, three, four, five and six.) Well, according to Dopesick, this was true among some pharma regulators as well. It portrays them as giving approvals because they wanted lucrative private sector jobs. Dopesick even alleged that some top Department of Justice lawyers were on pharma's side. This all illustrates something quite disconcerting -- that the public may wish to be careful when relying on legal and regulatory officials to protect them.

       China fought wars to rid its country of opioids, and there is a figurative war here as responsible people fight to do the same. This is going to take a while, as the trend shows that things are getting worse. Apparently, an opioid epidemic is one of those things that's easy to start, but very hard to stop. It took China over a century to remove the scourge, a painful century. Although China was in its prosperous High Qing era when its opioid crisis started, the drug helped create the worst period in its history. (I hope that doesn't foreshadow what's in this store for this country over the next few decades.)

       But even in hard times, some do well. Every period is filled with people who suffer, but also those who thrive. Every era has its winners and losers, and so has America's opioid era. The first picture above is of O'Melveny's opioid team. They dressed up and flew to New York City to receive the "Product Liability Litigation Department of the Year" award at The American Lawyer Industry Awards, for their win on behalf of an opioid manufacturer.¹ Beyond the award, the litigation was a financial win for O'Melveny. As its chair Brad Butwin explained, opioid cases are a key component of the firm's revenue strategy.

       The other four pictures are from these articles: (1) Father Revived With Four Narcan Treatments After Overdosing with Son in Car, (2) As Maryland's opioid crisis rages on, so does the grief of the families left behind to mourn, (3) Adults found overdosed with a small child in their car, and (4) Overdose Deaths Far Outpace COVID-19 Deaths in San Francisco.

       Congratulations on your win O'Melveny.

_________________________________________

¹ These prior posts describe the related litigation: one, two, three and four. In summary, O'Melveny lost at trial after being overwhelmed by evidence. But appeals briefs threatened that Oklahoma would be boycotted if it allowed its nuisance statute to be used against opioid manufacturers. Possibly scared of these threats, the appeals court reversed the trial court and held that "nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids."

Richard Goetz, Sabrina Strong, Steve Brody, Amy Laurendeau, Charles Lifland

O'Melveny's suspicious "independent investigation" prompts a coordinated response

       One aspect of the frivolous and entertaining world of sports is that owners will occasionally fire the team’s manager. George Steinbrenner was the archetype of such an owner, firing dozens of managers over his 30+ year tenure. He once changed managers three times in a season. But they were honest firings. As far as I know, the owners didn't try to swindle the manager out of severance payments they were entitled to under their contract. Well, according to reports, O’Melveny may have come up with a scheme to change that, prompting a reaction from National Basketball Association (“NBA”) general managers.

       This all started with O’Melveny commencing a “fair” and “independent" investigation for Portland Trailblazers owner Jody Allen. The investigation will determine whether General Manager Neil Olshey bullied and intimidated staff members. (Yes, O’Melveny is going to judge this -- the firm whose principals praised torture and reportedly threatened rape victims and scientists. If I could tell you all the examples of bullying and intimidation that I heard of or saw at O’Melveny . . ..) O'Melveny will "submit its findings to team owner Jody Allen shortly, and a decision on Olshey’s future will be determined soon after."

       Of course, in reality, the investigation may not be fair or independent. As I explained here, these investigations violate the most fundamental precept of the legal system -- that each side be represented by their own lawyer, who argue before an independent judge. In fact, if you want to know how O'Melveny will rule in an independent investigation, you may wish to figure out who in the organization pushed to hire them, and what that person wants. You may be surprised by how often this technique predicts the conclusions in O'Melveny's report.

       And the NBA's general managers figured out what was going on – that Ms. Allen seems to be looking for a way to fire Mr. Olshey “for cause,” so as to screw him out of the termination payments he is due. As reported by Adrian Wojnarowski and Ramona Shelburne, “many top team basketball executives are fearful Portland is creating a blueprint for other ownership groups to invoke firing for cause and sidestep payment on contracts.”

       The general managers responded by lawyering up themselves. They "are working to finalize the formation of a professional association that would collectively support executives with access to legal defense funds, lawyer referrals and public relations professionals[.]"

       So what was once a relatively gentlemanly relationship between owner and general manager is now a morass of scheming and machinations, with lawyers billing by the hour to cherry-pick and spin for their side. And O'Melveny is quite proud of what they've done here. They advertised this story on their website; presumably gratified by the new revenue stream they've helped to create (and O'Melveny is milking this for all the billable hours they can get; they've already decided that they need to expand and extend the investigation past its original due date.)

       [Addendum: O'Melveny's report concluded that Mr. Olshey violated the Portland Trail Blazers' "Code of Conduct," giving Ms. Allen the justification she needed to terminate Mr. Olshey's employment. The article doesn't say whether Portland also used O'Melveny's report to deny Mr. Olshey's termination payments (but I'm guessing they did.)]

O'Melveny, OMM, Apalla Chopra, white collar practice

Bimal Patel got his money at PayPal

       Bloomberg reports that Bimal Patel just took the job of Chief Legal Officer at PayPal. This is relevant to this blog for a number of reasons.

       Bimal was the person whose anti-Muslim comment and friendship with torture advocate Brian Boyle started the chain of events that led to this blog. He's also the person who taught me about monetizing government. I'm not surprised to see him pursue PayPal. It's one of a handful of companies that pay their lawyer over $10 million per year. I wouldn't expect a person so consumed by money that he viewed not just the legal profession, but also government service, as a means to riches to work anywhere else.

       What's interesting about Bimal, though, is that he was in the same utterly dead bank regulatory practice that I worked in. (If you would like more color on that, please read this prior post.) You may be wondering how someone from such a practice can become the legal officer for PayPal. Wouldn't they want to hire a person with lots of practical experience; a person with a lot of clients, deals and such? Below, I'll explain how that happened. It's a case study on how people monetize government into wealth.

       Actually, before doing that, let me add one more anecdote about what it was like in the group, because it was the first time I learned what kind of person Bimal was . . . One way the practice rain danced for work was by writing articles offering to do any bottom-feeding act for any client if they would just hire us, e.g., this one Bimal wrote offering to defend mortgage lenders accused of racial discrimination.

       One time, Bimal asked me to write such an article for him, but he said to write it without entering my time into O'Melveny's hours tracking system. Back then I wasn't an employee of O'Melveny. Instead, O'Melveny paid me by the hour; $75 per hour. And so attorneys had to get approval from management before assigning me anything because by assigning me work, they increased O'Melveny's expenses by a few hundred dollars (standard O'Melveny cheapness.) But if I didn't enter my time, he could circumvent that system and get me to do the work for nothing.

       And actually, while I'm on this topic, Bimal wasn't the only one who did that sort of thing. I heard that another attorney in the group, Trevor Lain, had tricked two brand new associates from another department into doing a lot of non-billable work. I didn't tell anyone about Bimal's request, but these other associates were vocal, and their complaints led to a mess that required a partner to get involved and apologize to them. (Incidentally, those two associates left O'Melveny a year or two later. Trevor also left O'Melveny a few years later. He tried to take one of O'Melveny's clients with him, hoping to use that revenue to fund his new solo bank regulatory law firm -- hubris that ended as you would think.)

       If I could summarize the bank regulatory practice in a few sentences, it was a group with virtually no work or clients, filled with opportunists using any machination and scheme they could think of to try and get ahead. It epitomized the term, "rat race."

       Getting back to Bimal's career, he knew he wasn't going get anywhere in a dead group. So in 2012, he implemented his "monetize government" strategy and left to take a job at the Federal Deposit Insurance Corporation. He then used strong support from his friend Brian Boyle to parlay that resume entry into a partnership at O'Melveny, which he returned to in 2015.

       But that only created a new problem -- he now ran the bank regulatory practice. I remember him on calls in 2015 and 2016 bemoaning how hard it was to collect on a small project. Pure misery. And again he wrote article after article hoping to land a client. During that time, Mr. Boyle staffed him on ERISA matters to help him stay busy.

       Seeing that he wasn't going to make much money at O'Melveny . . . he once again resorted to his strategy of monetizing government. He used his new title of partner and head of a practice (outsiders didn't know what the practice was really like) -- along with O'Melveny's intimate connections to the incoming Trump administration -- to attain his second government job, this time at the Department of the Treasury. And now, he has used that title to attain the large salary at PayPal, the goal he had been pursuing this whole time.

       Since I'm writing about all of this, let me mention a third attorney in the group -- Todd Arena, as he also had an interesting story. In early 2015, when Bimal was coming back to O'Melveny, Todd worked in the renewable energy and project finance group. One day, the practice head Ted McAniff and I got an email stating that Todd was really interested in our practice, and that he wanted to join the bank regulatory group.

       Todd had apparently met Ted and gotten the wrong impression. Everyone has their essence, and Ted had his. The first day I entered O'Melveny's offices, he told me that he had lied to get me into the firm. Throughout my time with him, he occasionally shared anecdotes about other times he lied, just as a means to an end, or a way to get out of a difficult spot. I'm trying to remember some of the stories; like one when he was working at an ad agency before he went to law school . . . actually, let me move on. I don't need to dredge up those memories.

       The problem was that lying can hurt people. Me, for example. Before I entered Ted's sphere, I had received the award for the top tax student in my law school (granted by O'Melveny, ironically.) Had I known the truth about Ted and his practice, I would have pursued that instead of following him. I wrote more about Ted in this prior post if you're interested. But to add one other bit of detail here, he eventually told me that he worked for no compensation, I assume because the title and having his name on O'Melveny's website led to other opportunities. Once, he told me that he was worried about the firm cancelling his security card and locking him out of the building.

       Seeing how confused Todd was, and worried that he might ruin his career, I had an hour-long discussion with him where I told him the truth. I tried my best to explain how bad it was to work in a slow group. I gave Todd a breakdown of every project we worked on over the past year, and how much we billed. And Bimal wasn't going to change any of this, because he was just trying to add the title of partner to his resume, as a stepping stone to a lucrative job elsewhere.

       Despite my efforts, Todd gave up his position as counsel in the project finance group and joined the bank regulatory group in the lower position of associate. And it turned out exactly like I warned him it would. In a year or so, Bimal left the dead practice to return to government, and so Todd had to leave too. He couldn't go back to the project finance group that he had abandoned so, according to his linkedin, he has been jumping through a series of short-term jobs. I tried to warn him.

       Any way, as you can see, monetizing government works as a strategy. You could be someone with virtually no clients and thus little practical experience; you could be an opportunist; you could get your primary support from a torture advocate who lied to a federal court; and still, despite all of that, you can still monetize government into a large salary. And this is the motivation of an untold number of people in government.
Bimal Patel Paypal email

New rape accusation shows why O'Melveny's "independent investigations" aren't trustworthy

       As I explained previously, one way that O'Melveny makes money is by conducting sham "independent investigations." The risible nature of such investigations is so well-known that it's now in popular television. Just last month in the hit series Succession, an executive was accused of sexually assaulting women who wanted entertainment jobs. (And these were valid accusations; the other executives knew that he did this.) As they strategized how best to get rid of the matter, the company's general counsel suggested hiring a firm like O'Melveny to do an independent investigation.

Chief Executive Logan Roy: Everyone, let's go.

General Counsel Gerri Kellman: Okay. Great. So, I suggest I call DOJ and just right away let them know how horrified we were to learn of these, um, allegations and that we intend to form a special committee and we can tell them which white shoe law firms, I have ideas, we are considering to thoroughly investigate and promptly report back their findings.

Succession, Secession (HBO television broadcast Oct. 17, 2021), script available here. It's another example of the American Bar Association and state bars failing to regulate the profession in a way that maintains the public's esteem. Any way, a particularly brazen example of this just popped up in the news.

       Back in 2018, the actress and model Kate Upton accused Guess founder Paul Marciano of sexual assault. In response, Guess hired O'Melveny to perform an "independent investigation" of her allegations and decide if he had done anything wrong. Shocked that Mr. Marciano's "personal lawyer" would be hired for that role, Ms. Upton protested publicly, after which Guess used another law firm to conduct the investigation. (See this prior post for the relevant links.)

       In January of 2021, another woman accused Mr. Marciano of sexual assault. Who defended Guess in that matter? O'Melveny & Myers. (Oddly, the word O'Melveny doesn't appear in the case's docket, but three of the lawyers fighting the victim, Dan Petrocelli, Catalina Vergara and David Marroso, are O'Melveny lawyers. See links one, two and three.)

       What did O'Melveny do in the case? They filed a motion to force the matter into confidential private arbitration. Some view this as a dirty tactic, as it is designed to move the matter out of the public court system, where a jury would decide, and into into a private forum where a possibly biased arbitrator will decide. In fact, companies such as Facebook, Uber and Microsoft have stopped using this tactic in sexual harassment matters, because it harmed their reputation. New York State even passed a law banning such forced mandatory arbitration in sexual harassment matters. As Justice Ruth Bader Ginsburg wrote, forced arbitration reflects “inequality of bargaining power,” thwarts “effective access to justice” and undermines “the well-being of vulnerable workers.” (Sourced from this article by Justice Goodwin Liu.)

       Unfortunately for the young woman, the judge enforced Guess's mandatory arbitration provision and so we don't have any further updates on her case. But last week, a new woman accused Mr. Marciano of rape. A copy of the complaint is here. The case's docket doesn't yet show who will defend the company, but I have a feeling that it'll be O'Melveny & Myers. [Addendum: Indeed it is O'Melveny. The docket shows the aforementioned Ms. Catalina Vergara filing a document on behalf of Guess on November 16.]

       Remember, O'Melveny -- the firm fighting tooth and nail against the alleged victims -- was going to do an impartial and independent investigation of the sexual assault allegations against Mr. Marciano.

O'Melveny, OMM, Apalla Chopra, white collar, investigation, Dan Petrocelli, David Marroso, Catalina Vergara, sexual assault, sexual harassment

O'Melveny embarrasses their client with a reportedly "absurd" letter

       Last month, Apple terminated a senior engineer after she complained of harassment and other improprieties. I'm guessing O'Melveny played a role in that because a few days later, they sent Ms. Gjøvik the letter stating the basis for her termination. O'Melveny's letter was reportedly so "absurd" and "weak" that it caught the attention of reporters, and this matter turned into a front-page article (links one and two.) The tech website Gizmodo summarized the letter along with its faults. 

       I imagine Apple regrets this needless exacerbation and embarrassment. According to Menlo Staffing Partners, the technology sector has a 13.2% annual rate of employee attrition, and the average Apple employee works there for only two years before leaving. With 147,000 employees, Apple deals with a lot of departures, and you never hear of the vast majority of them because they were handled properly.  

       But before you conclude that O'Melveny is upset about any of this, remember that its partners dream of lengthy litigation. Firms like O'Melveny compete with each other for a relatively small pool of what is called "premium work" (work for clients like Apple, the ones willing to pay biglaw's high billing rates.) They sit around hoping for a such clients to get sued because without such lawsuits, O'Melveny can't get to $2.5 million in annual profits per partner. 

       This is where the interests of Apple and O'Melveny diverge. What follows is complete speculation, for which I have no basis . . . but I would not be surprised if O'Melveny's labor and employment group intentionally mishandled the engineer's situation so as to exacerbate the matter and create or lengthen litigation. Again, that is pure speculation on my part, and I have no evidence that O'Melveny actually did this. But still, if someone has a financial incentive to do something, it's fair to wonder if they ever act on that incentive. 

       It's something to remember about private-sector lawyers -- they're not necessarily there to help you;  they're trying to make money off of you. Lawyers don't necessarily profit by making your life better. An ever-worsening trainwreck in your life will seem like a tragedy to you, but to the lawyers working on your case, it might seem like a gift from the rainmaking gods. 

       It occurs to me that a week ago I wrote about the unpleasantness of the topics on this blog, and here I am experiencing that feeling again, so I'll cut this short. Any way, hopefully Ms. Gjøvik somehow recovers from all of this, and attains some sense of justice.

        

O'Melveny, OMM, labor and employment, employment discrimination, sexual harassment

Why I can't expand this site beyond O'Melveny & Myers

      Sometimes a reader will ask if I can expand this site to cover other law firms. Well, you have to understand that although it's important to shine a light, and although I am grateful to journalists who are willing to gaze into the abyss . . . writing this blog can be an unpleasant experience. (Working on this has taught me that I would not have made a good journalist. I don't really like writing about troubling things.)

      Beyond that, there's the time commitment. In a few hours per month, I can compile and summarize every troubling public story related to O'Melveny (along with private stories that the teller wants me to publish, assuming I can do so without any risk of violating defamation law.) But to do that for the profession as a whole would be a full-time job.

      So if you would like to see other organizations covered, please feel encouraged to set up a site like this about them. If you focus on one, it won't take much time, and you might do some good.

   O'Melveny, OMM

O'Melveny's generous perquisites

       Last week, O'Melveny announced that it would provide Peloton to all of its employees. They then scheduled interviews with reporters to discuss this news, resulting in articles by Law360, Reuters, The ABA Journal, Above the Law, and The American Lawyer. (Incidentally, here is a link to O'Melveny's public relations manager talking about how he manipulates journalists into advertising for the firm.)

       With all that publicity, you're probably wondering what they revealed. Perhaps O'Melveny bought a Peloton bike for each of its employees. The owner of a tiny suburban law firm recently bought his twenty employees Peloton bikes. O'Melveny's partners made an average of $2.5 million each in 2020, so maybe they did the same. No, that didn't happen. Did they pay for Peloton's $39/month "All Access Membership" plan? No, not that either. 

       O'Melveny gave its employees the lowest-tier $12.99/month "Peloton Digital Membership," and an unspecified discount on the $39/month membership and bike. (The amount of that discount is likely trivial, because if it was worthwhile they would have presumably called attention to it during the publicity stunt.)

       This is being offered through Peloton's "Corporate Wellness" partnership, which is a way for Peloton to sell its service to companies in bulk. So O'Melveny's partners will probably not pay the full $12.99, since bulk sales usually cost less per-unit than retail. I would guess that Peloton is picking up a significant portion of the cost as a way of getting companies to make Peloton their primary exercise offering.       

       Also, apropos of this topic, below is a passage from a newly-released best seller. After explaining the benefits of exercise, the author cautions against getting addicted to "running wheels."

It's important to know that running wheels are not necessarily a model for a healthy lifestyle. In short, running wheels are a drug. Mice placed in a complex maze of 230 meters of tunnels including water, food, digging material, nests -- in other words a big area with a lot of cool stuff to do -- as well as a running wheel, will spend much of their time on the running wheel and leave large segments of the maze unexplored. Once rodents start using a running wheel, it's hard for them to stop. Rodents run much farther on a running wheel than they do on a flat treadmill or in a maze, and also much farther than they do during normal locomotion in natural environments. Caged rodents given access to a running wheel will run until their tails are permanently curved upward and back towards their head in the shape of the running wheel. The smaller the wheel, the sharper the curve of the tail. In some cases rats run until they die. 

Dr. Anna Lembke, Dopamine Nation: Finding Balance in the Age of Indulgence, Chapter 7 (2021). 

       I understand why O'Melveny's partners would want their employees to use a Peloton bike. They want attorneys to be at the firm's beck and call, including after hours. So they should exercise on something compact that they can keep near their computer. That way if they get an email in the middle of it, they can quickly get to work.

       But who would have thought that simply going to a gym with varied options or biking in the scenic outdoors, with no one receiving data on what you did,¹ would one day become a bygone luxury.

_________________________________________

¹ Peloton apparently sends companies data on their employees' workouts. The companies "receive aggregated and anonymized data reports that reveal the positive effect Peloton has on employees' physical and mental wellness."

Brad Butwin, George Demos, Brandon Jacobsen, o'melveny, omm, pymetrics

After relying on O'Melveny, California's governor gets blamed for a needless two billion dollar loss

       In 2018, Pacific Gas & Electric's poorly-maintained equipment caused a wildfire that killed 84 people. That catastrophe led to extensive litigation, as well as attention from California Governor Gavin Newsom. Normally the governor relies on the state's internal attorneys for legal advice. But for some reason Gov. Newsom declined their help and decided to use O'Melveny & Myers. That didn't end well; last week, he had to run away from a reporter's questions. 

       Apparently, there were two problems with the work that O'Melveny and the governor's office did together. 

       First, they allowed half of the $13.5 billion payment to past wildfire victims to be paid in PG&E stock. They were given 477 million shares of stock. At $14.15 per share, those shares would be worth $6.75 billion, or half of the settlement amount. Indeed, PG&E's stock was worth more than $14.15 in 2020. And it was supposed to go up from there. In February of 2020, when the stock price was about $16, PG&E's CEO Bill Johnson said he was going to "make sure that stock price is up so that when they sell it, they’re going to get a good price and distribute to the victims.” This gamble was supposed to pay off.

       The problem is that by the time the administrative process pays the victims, the stock will probably be worth much less. Its price has been hovering at around $10 for over a year, and that's during a booming stock market. If it can't climb back to the break-even price of $14.15 in this market, it may never do so. 

       In his Sep. 1, 2021 letter, the Fire Victim Trustee said this poor stock price created a $2.4 billion shortfall. He said this "seems unfair" and asked for "a working group to address what, if anything, can be done to ameliorate" the problem.

       If O'Melveny was going to collect $3 million of taxpayer money to advise Gov. Newsom, the least they could have done was to structure the settlement in a way that avoids this foreseeable risk. (Incidentally, Nancy Mitchell won one of American Lawyer's "Dealmakers of the Year" award for leading the O'Melveny team that advised Gov. Newsom. She left O'Melveny this past April.)

       The second problem has to do with their drafting of AB 1054. That law addresses future wildfires caused by PG&E. It has been criticized for being too friendly to PG&E. One California state official said it's designed to reduce the amount PG&E will have to pay in the event of a fire.

If this had been in place during the 2017, 2018 and 2019 fires, PG&E shareholders would have been on the hook for about $4 billion dollars, not for the tens of billions that they've ultimately ended up paying out[.] 

quoting Nathaniel Skinner, Ph.D., Safety Branch Program Manager at the California Public Advocates Office. This article explains how O'Melveny allegedly "watered down" the bill to harm consumers. It's based on the reporter's review of confidential emails between the governor's office and O'Melveny.

       In summary, if the reports linked above are right, then O'Melveny and Gov. Newsom's work hurt existing victims to the tune of $2.4 billion, and it could hurt future victims by untold amounts. 

       [Addendum: A follow-up article argues that O'Melveny was conflicted, because they represented PG&E prior to being hired by the governor's office to protect the state's and victims' interests.] 

*       *       *

       Virtually all of the above comes from the efforts of reporter Brandon Rittiman of ABC10 in Sacramento. You can find his full coverage here, and a video of his most recent piece is below. 

       As noted in my last post, Afghanistan showed how people can lose faith in a government that's perceived to be corrupt. This seems to have happened to one of the fire victims, Steve Bradley. He said Governor Newsom's response to the wildfires was "really insidious . . . like next-level movie, you know, the bad guy in the background smoking the cigar manipulating all these things." Faith in Gov. Newsom has fallen so much as a result of the above and other issues, that the voters tried to recall him.

       In that post, I also listed three things the United States has to maintain integrity in government: (a) the FBI's anti-corruption unit, (b) a vigilant press, and (c) the right to vote out our leaders. Mr. Rittiman is an example of that vigilant press, a low-paid reporter who works tirelessly to keep the ambitious and perhaps temptable Gov. Newsom accountable to the people he was meant to serve. He's doing more to keep Gov. Newsom on the right path than O'Melveny did.

 

Pacific Gas & Electric

O'Melveny's friend Thomas Barrack got arrested for doing something ingrained in O'Melveny's culture

       Last year, I wrote about a video of O'Melveny's most eminent partner, in which he talked about his friend Thomas Barrack's attractive young wife. Poor Mr. Barrack has fallen on hard times recently. A few weeks ago, he was arrested for trying to use his government connections to alter U.S. foreign policy for an investment fund client. In googling about that story, I also learned that his wife Rachelle filed for divorce. 

       The arrest has nothing to do with O'Melveny (the full indictment is here if you're curious about the details.) And of course these are just allegations; Mr. Barrack might not have done any of the things he's accused of. 

       But the story interested me because I've written about O'Melveny's culture of "monetizing" government connections and experience. There was a public example of this last year, when former O'Melveny partner Brian Brooks hijacked a government office to advance his industry of cryptocurrency, after which he was given his second high-paying job in that industry (links one and two.) O'Melveny is even trying to change case law to make it harder to prosecute public officials who grant favors in exchange for money. 

       Or look at Deputy Attorney General Lisa Monaco's resume. She used to split her time between O'Melveny and WestExec advisors. WestExec's entire business model is premised on using its government connections to advance its clients' interests. One of WestExec's people even bragged about all the clients WestExec expects to get, by advertising its contacts in the new Biden administration.

       "I know someone in government, or I work in government, and if you give me something I will advance your interests there," is a thought that occurs in Washington. That's what Mr. Barrack did. He used his government contacts to advance the interests of one of his fund's investors. So why was Mr. Barrack arrested for doing something that seems commonplace? 

       Well, in reading the indictment, he was allegedly acting on behalf of a foreign government, which requires a special registration that he didn't file. There are additional charges, because he allegedly misled FBI agents when they started investigating the matter -- but his failure to register was what initially got him in trouble. 

       The idea behind this rule is that, if you're going to use your access to government officials to promote the interests of a third party, you should disclose that third party's name. This quote from the DOJ's press release summarizes the spirit of this law: “American citizens have a right to know when foreign governments [are] attempting to exert influence on our government." 

       The rule might be more of a technicality than something with a meaningful impact -- because it's usually obvious who the advocate is working for. In Mr. Barrack's case, his connections with his client were known, and people could have put two and two together. But still, it's one speed bump on the lobbyist's path.

       You're probably wondering how places like WestExec deal with those registration and disclosure rule. This article claims that WestExec uses a legal loophole to avoid having to register and disclose the names of its clients. So they're also violating the spirit of the disclosure rule? Why didn't Mr. Barrack just use that loophole? I don't know. The journalists who wrote that article, Bryan Bender and Theodoric Meyer, appear to be top grade. But I haven't dug into the rules, and juxtaposed them with what WestExec actually does to get to the bottom of it. It would take months of research, and possibly FOIA lawsuits, to understand how WestExec and that whole industry operate, and this is just an article-every-other-month hobby blog. 

       So I'm not sure what to make of all this. I don't know why Mr. Barrack was arrested for doing something that others appear to do. Maybe his was a particularly egregious case. Maybe he's like that person who gets pulled over for going over the speed limit, even though dozens of other cars are also going over the limit. Maybe he's the first in a series of prosecutions. Maybe WestExec is not violating the spirit of the disclosure rule; maybe they do disclose their client names, and the Bender/Meyer article is wrong. I don't know.

       Closing on a positive note, I guess the arrest shows that the FBI is working hard to monitor these things, and using whatever technicality they can find to stop them. And don't forget that we have a vigorous press that scrutinizes the revolving door (there were an endless number of articles about WestExec.) And of course there's the ballot box. These are more than a lot of other countries have. Hopefully they're enough to ensure that the government occasionally does something for us unconnected masses.

       [Addendum: A few weeks after I wrote this post, the government of Afghanistan fell. According to the articles below, too many Afghan politician approached their job with the "monetize government" mindset. The government became so corrupt that the population lost all faith in it. Of course, no one accuses the United States of being as bad as Afghanistan in terms of corruption, but this event makes the obvious point. If government is just a bunch of people trying to profit off of their position, it might not function as well as it could, and it might cause people to lose faith in their country.

       Around that time, I happened to watch the acclaimed biographical movie Vice, about the life of Dick Cheney. According to the film, he was known as a "ne’er-do well" and "dirt bag" in his younger years, and he rose to wealth only after he entered government and used those connections to make money. Per this Atlantic article, he was hired as the CEO of Halliburton despite having "virtually no business experience" because "he had valuable relationships with very powerful people." If that's true, it would be a classic example of monetizing government. The movie suggests that the most problematic decisions of the war were pushed by Mr. Cheney.]  

       [Second addendum: O'Melveny is representing Mr. Barrack in this case. Dan Petrocelli is the lead attorney.]

McDermott, Will & Emery shows how easy it is to game Firsthand/Vault's "best firm to work for" award

       This year's Vault "Best Law Firm to Work For," "Best Law Firm for Diversity" and "Best Summer Associate Program" rankings came out, and McDermott Will & Emery took the top spot from O'Melveny in all three. Last year, McDermott was ranked #41 in the best firm to work for ranking, and unranked in the other two (meaning its score was so low that it didn't even place in the ranking.) 

       So according to Vault, McDermott went from being a middling place to work, with poor diversity, and a subpar summer associate program, to being the absolute best in all three areas -- in only one year.

       Remember, to win these awards, all McDermott had to do was to tell its own associates to give it the highest score on Vault's survey. I imagine McDermott got tired of being disparaged by Vault's flawed methodology, and decided to mimic O'Melveny's gamesmanship. 

       Well done McDermott; you proved how meaningless these awards are.

       [Addendum: McDermott also took the top spot from O'Melveny in the The American Lawyer’s 2021 Midlevel Associates Survey. Last year, McDermott was ranked #29. Like Vault's best firm to work for award, to win this award, all McDermott had to do was to tell its midlevel associates to give it the highest score on the American Lawyer survey.]

 Firsthand, First hand, These are last year's top 50 best firms to work for, O'Melveny & Myers LLP, Orrick Herrington & Sutcliffe LLP, Ropes & Gray LLP, Clifford Chance US LLP, Eversheds Sutherland (US) LLP, Paul Hastings LLP, Latham & Watkins LLP, Gibson, Dunn & Crutcher LLP, Patterson Belknap Webb & Tyler LLP, Willkie Farr & Gallagher LLP, Proskauer Rose LLP, Goodwin Procter LLP, Lowenstein Sandler LLP, Shearman & Sterling, Cleary Gottlieb Steen & Hamilton LLP, Jackson Walker, Choate, Hall & Stewart LLP, White & Case LLP, Morgan, Lewis & Bockius LLP, Gibbons P.C., WilmerHale, Akin Gump Strauss Hauer & Feld LLP, Dechert LLP, Fried, Frank, Harris, Shriver & Jacobson LLP, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Thompson & Knight LLP, BakerHostetler, Goulston & Storrs PC, Munger, Tolles & Olson LLP, Sidley Austin LLP, Cooley LLP, Covington & Burling LLP, Sheppard Mullin, Morrison & Foerster LLP, Milbank LLP, Cozen O'Connor, Fenwick & West LLP, Pillsbury Winthrop Shaw Pittman LLP, Foley Hoag LLP, Linklaters LLP, McDermott Will & Emery, Cadwalader, Wickersham & Taft LLP, Debevoise & Plimpton LLP, Crowell & Moring LLP, Vinson & Elkins LLP, Simpson Thacher & Bartlett LLP, Williams & Connolly LLP Robinson & Cole LLP, Carlton Fields, P.A., Kirkland & Ellis

Follow-up to the Brian Brooks and Bitcoin post

       Last month, I wrote about how former O'Melveny partner Brian Brooks had used his government position to boost the cryptocurrency industry. I then cautioned that despite Mr. Brooks's statements, crypto was burdened with five long-term risks: (a) governments do not want a competing currency, (b) crypto prices are too volatile for it to be a reliable store of value, (c) high transaction and energy costs, (d) one of crypto's key selling points -- privacy, crime and money laundering -- will be gone once governments decode its owners' identities, and (e) crypto isn't really an amazing innovation because it's just a ledger, something that's been around for ages. In the ensuing month, crypto prices coincidentally fell by about 40%, leading to a nationally televised interview of Mr. Brooks.

       In the May 19th interview, Bloomberg's Romaine Bostick asked Mr. Brooks about the crash. Mr. Brooks had previously described Bitcoin as a hedge against inflation. But on that day, Bitcoin was down by 41.6% from its April 15 all-time high, suggesting it's not really a great hedge. So Mr. Bostick was wondering what Mr. Brooks had to say about all this. 

       Mr. Brooks responded that the "Dow Jones" was also falling in "a straight line down." And he asked why reporters were covering the crypto crash, but "not reporting on that [Dow Jones] story." He went on to say that the dollar had "been debased to the tune of about 40% over the last year" leading to "historically insane inflation levels." Again, he asked why reporters were covering the crypto crash, but not the dollar's fall. 

       Someone watching this interview might conclude that Bitcoin investors suffered the same loss as Dow Jones investors, or that the dollar had lost 40% of its value over the past year.

       Here are some facts. At the time of the interview, the Dow Jones was down only 2.5% off of its May 7 all-time high. In addition, for the dollar to debase by 40% in a year, there would have to be 67% inflation in that year. The most recent statistics suggest 4% annual inflation.¹

       If you're wondering why Mr. Brooks would say such things on national television, remember the money involved. His goal as CEO of Binance.US might be to make the same fortune -- nine, ten or eleven figures -- that other crypto exchange CEOs make (by running what looks more like a casino than a trading exchange, with possibly some money-laundering thrown in.) That amount of wealth can be a big motivator.

       [Addendum: Another of the five concerns manifested in an astonishing manner on June 7. On that day, the FBI announced that it had the password for the Bitcoin wallet used by the Colonial Pipeline extortionists. It's not clear how the FBI attained that password (called a "private key.") Normally passwords are hacked using "brute force" computing power, i.e. trying every possible combination of numbers and letters until one works. But that should be practically impossible with a Bitcoin wallet password. Regardless, the FBI got it somehow and recovered the extorted funds.]

       [Second addendum: Brian Brooks left his position as CEO of Binance.US on August 6. Apparently some investors refused to invest in Binance.US unless Changpeng "CZ" Zhao disconnected himself from the company. Mr. Zhao is the CEO of Binance.US's parent, Binance, and he is also a 90% owner of Binance.US. When those investors pulled out, Mr. Brooks resigned. In reading between the lines, I'm guessing that Mr. Brooks was trying to use third party investors to wrest ownership of Binance.US from Mr. Zhao, and that maneuver did not end well for him. To give you a sense of why you should never trust anything Mr. Brooks says, please read this article from just a week before his resignation, where he emphatically lays out his plans for the future of the company.]

       [Third addendum: Mr. Brooks is apparently trying to make his fortune at another crypto company. He became the CEO of Bitfury on November 5.] 

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¹ Here are the numbers if you're curious: On May 7 at 4:00PM EST, the Dow Jones was at 34,778, and by May 19 at 4:00PM EST, it fell to 33,896; 33,896 / 34,778 - 1 = -2.5%. The April 15 4:00PM EST price of Bitcoin was $63,314 and its May 19 4:00PM EST price was $37,002; 37,002 / 63,314 - 1 = -41.6%. To explain the 67% inflation number, assume you could buy a cup of sugar for a dollar a year ago. If the dollar is debased by 40%, you can only buy 60% or three-fifths of a cup of sugar with a dollar. So if you want to buy a full cup of sugar, you now have to pay $1.67, meaning prices rose by 67% over the year

Brad Butwin's Jewish privilege

       Earlier this week, I saw an article about an Iranian woman, Tali Farhadian-Weinstein, who is running for the office of Manhattan District Attorney. In surfing her twitter, I noticed that she went out of her way to talk about how Jewish she was. Every other tweet was about being Jewish, or being connected to a Jewish group. I think I know what this is about. One way for Iranian-Americans to escape anti-Iranian prejudice, is to constantly advertise that they are Jewish Iranians, and not Muslim Iranians.

       I've even known Muslim Iranians (with non-religious names) who did this. One even wore a yarmulke and pretended to be strictly orthodox, even though I knew he wasn't Jewish and he wasn't religious at all. He was one of the more amoral people I knew. He actually got a lot of Jewish clients by doing that. Of course, I have never done that. I always used my Muslim Iranian name, regardless of any anti-Muslim comments and discrimination I heard and felt as a child and adult. When I was blacklisted from the legal profession for protesting my boss's anti-Muslim acts and his public criticism of the Geneva Convention, and later called a "mosquito" by O'Melveny's General Counsel Martin Checov after I asked for help -- I simply changed professions. Principle is worth more than a few legal bucks.

        This brings me to the subject of this post: a letter Brad Butwin co-authored with other law firm chairs protesting anti-Semitism. Of course the attacks we've seen against Jews after the May 2021 Gaza war are abhorrent and illegal, and I imagine the attackers will be prosecuted. I was physically attacked a number of times as a child, for things Iran did as a country. Once I was held hostage by students in elementary school, even though my family had to flee Iran due to an uncle's political connections to the shah. I didn't take it personally; I knew they were just playing around. But for those who take it more personally, I agree that no one should be attacked because of something that happens across the world. 

       But I do wonder about Mr. Butwin's claims of anti-Semitism, and would consider the counter-hypothesis that Jews actually receive quite a lot of privilege in the legal profession. Of course, it's just a hypothesis, not something I've tried to prove, or will try to prove . . . this is just a quick post. But anecdotally I've seen things. For example, right in the letter, you can see that the law firm chairs who signed it appear to be about 50% Jewish, based on their last names.¹ A demographic that is only a tiny percentage of the U.S. population, is roughly half of the law firm chairs. Unless you think Jewish people are genetically and culturally superior in legal ability, and thus deserve these positions, it appears to be evidence that simply being Jewish will help you advance in the profession.

       So like I facetiously applaud those Iranians who pretend to be Jewish for the benefits, I'd like to applaud Mr. Butwin for his Jewishness. It may have taken you further in the law, than you would have gone if you were named Mohammed.

       [Addendum: A few weeks after I wrote this post, Los Angeles Magazine did a story on the influencer Yashar Ali. The article says he was born to an Iranian Muslim family, but tells everyone he is a devout Catholic who attends mass three times a week. The article goes on to describe instances when he was accused of being a con artist and a grifter, acts that seem antithetical to the values of a religious person. Of course, I don't know if the stories are true, but they made me wonder if this was a public example of what I described above.]

       [Second Addendum: Ms. Farhadian-Weinstein lost to Alvin Bragg, after spending a jaw-dropping $13 million on her campaign (including $8 million of her own family's money.) I say jaw-dropping because according to that story, the other seven candidates spent an average of about $1 million each.]

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¹ I guess I should show my work here. Note I am not an expert on Jewish names. Some people are but not me. Once, when I was working retail in college, I mentioned to a customer that my favorite math teacher shared his last name. He asked how it was spelled, and then explained that the teacher's spelling signified a Jewish version of the last name, as opposed to the Scottish version that he possessed. Some people are really good at this, but not me. Any way, I think the following signers are Jewish: Neil Barr (Davis Polk & Wardwell), Bradley J. Butwin (O’Melveny & Myers), Scott Edelman (Milbank), Eric Friedman (Skadden, Arps, Slate, Meagher & Flom), Michael A. Gerstenzang (Cleary Gottlieb Steen & Hamilton), David J. Greenwald (Fried, Frank, Harris, Shriver & Jacobson), Brad S. Karp (Paul, Weiss, Rifkind, Wharton & Garrison), Daniel A. Neff (Wachtell, Lipton, Rosen & Katz), Joseph C. Shenker (Sullivan & Cromwell) and Barry M. Wolf (Weil, Gotshal & Manges). These signers I suspect are not: Barbara L. Becker (Gibson, Dunn & Crutcher), Michael W. Blair (Debevoise & Plimpton), William R. Dougherty (Simpson Thacher & Bartlett), Julie Jones (Ropes & Gray), Kim Koopersmith (Akin Gump Strauss Hauer & Feld), Jami McKeon (Morgan Lewis & Bockius) and Faiza Saeed (Cravath Swaine & Moore). Whatever the exact numbers, I don't think it would disrupt my conclusion that about 50% are Jewish.