Law, disrupted｜法律访谈 - 节目列表

In this episode of Law, disrupted, John is joined by Michael A. Barlow, partner at Abrams & Bayliss LLP, and Silpa Maruri, partner at Quinn Emanuel’s New York office. Together, they discuss litigation in Delaware, which John briefly highlights as the epicenter of both corporate America and high-end corporate litigation. The conversation begins with John asking Michael how Delaware managed to stake out a unique position of being the jurisdiction of choice for corporations, which has led to high-end and high-stakes litigation in Delaware courts. Michael notes the answer is two-fold. The first answer is former President Woodrow Wilson. He explains that Delaware largely adopted the same revolutionary law of New Jersey by the then Governor Wilson. The second answer is that Delaware has worked hard since to stay at the forefront by annually updating its laws and court system. They touch on how Nevada is trying to mimic Delaware but, unfortunately, is proving to be unsuccessful so far. Silpa explains the difference between the two types of courts in Delaware: the Court of Chancery and the Superior Court. Silpa highlights how the former is a court of equity; therefore, it hears matters sounding in equity, whereas the latter is a court of law. Together, John, Michael, and Silpa chew over the role of the Delaware Court of Chancery, analyzing the history of the courts as a foundation for understanding the wider role of the courts. John asks Silpa what lawyers and litigants should expect when they’re litigating cases in Chancery Court, with Silpa noting that all trials are bench trials. She highlights how the Court of Chancery is especially bespoke in that not only is it the case that you’re going to have the fact-finder be the judge, but that judge is going to be actively involved in deciding even minor things like motions to compel. The conversation is then steered towards what a trial is like in the Court of Chancery. In many jurisdictions, the date set for a trial is often moved and shifted, but Silpa notes that this specific court respects set trial dates. In addition, she notes that the Vice Chancellors are proactive during the trial. Finally, John, Michael & Silpa discuss the importance of certainty and predictability on matters of Delaware corporate law. Michael briefly notes how Delaware handles a significant number of sophisticated corporate transactions in the Court of Chancery. However, he notes that the court has a much broader role as a court of equity. Michael notes that there’s a pretty broad set of cases that the court handles with the same attention to detail and focus that it brings to these corporate disputes.

John is joined by Philippe Pinsolle, Head of International Arbitration for Continental Europe and partner in Quinn Emanuel’s Geneva office, and Simon Vorburger, partner in Quinn Emanuel’s Zurich office. They discuss the €14 billion international arbitration award, one of the largest arbitration awards ever, that Philippe and Simon obtained for Quinn Emanuel client, Uniper, a German gas supplier, against Gazprom Export, a Russian gas company. The case began in mid-2022 when Gazprom unexpectedly halted gas supplies to Uniper, which severely impacted the German energy market, as Gazprom had been supplying 40% of Germany’s gas. Uniper then had to purchase gas at prices as high as ten times the previous price to fulfill its obligations, leading the company to the verge of bankruptcy. Gazprom’s justification for stopping the gas was based on force majeure, claiming that unforeseen events, such as the ongoing war in Ukraine and damage to the Nord Stream pipeline, made it impossible for Gazprom to deliver the gas. These justifications lacked credibility because, for among other reasons, some of the claimed force majeure events occurred after Gazprom stopped delivering the gas. Philippe explains that the arbitration process moved quickly with the arbitration beginning in November 2022. The arbitration hearings were held in The Hague, but Gazprom did not participate directly, opting to obtain an anti-arbitration injunction from a Russian court. Despite Gazprom’s absence, the team had to rigorously prove up their case, because default judgments are not permitted in international arbitration. This made the UNIPER’Sclaimant’s burden more challenging in some ways in that without an opponent making specific claims, the Quinn Emanuel team had to convince the arbitrators that there were no plausible defenses to Uniper’s claims and despite every force majeure event Gazprom had asserted, it still could have fulfilled the contract at issue. Another key legal challenge was Uniper’s “take-or-pay” contracts, which required Uniper to pay for gas whether it was delivered or not. The team convinced the tribunal to allow Uniper to terminate these contracts. Philippe addresses the challenge of staying focused on the contractual claim at issue despite the broader geopolitical context of the arbitration, including the 2022 European energy crisis and Russia’s role in manipulating gas supplies to Europe. The podcast concludes with a discussion about the German government’s bailout of Uniper and that the proceeds of the arbitration will benefit the German state.

In this episode of ‘Law, disrupted,’ John is joined by Vinit Nijhawan, Managing Director at MassVentures – a venture capital firm focused on fueling the Massachusetts innovation economy. Vinit also runs the Mass Transfer Center, which helps universities and institutions of higher learning commercialize their unused intellectual property rights. John and Vinit begin by discussing a study that Vinit co-authored that examined how effective or ineffective universities were at commercializing their patent portfolios. One key conclusion of the study was that approximately 60% of the patents held by universities are never licensed. This can send a message to faculty members that the university will not back up their efforts to develop and obtain patents by enforcing them. John and Vinit then examine the best practices at universities that successfully commercialize their patent portfolios. They discuss the entrepreneurial systems at MIT and Stanford, where individual faculty members who develop inventions create a market for their patent either through licensing to an existing company or by creating a startup that venture capitalists invest in. They also discuss universities with activist technology transfer offices that often have funding to help advance projects towards commercialization. These technology transfer offices actively connect faculty members with entrepreneurs and venture capitalists to let them know what technologies the universities have available. The conversation moves on to the steps universities must take to understand which of the 60% of unlicensed patents they should seek to commercialize. Vinit explains that focusing on potential infringement cases helps to identify areas where there is an established market for a given patented technology. John and Vinit discuss in depth how MassVentures helps universities identify areas of their unlicensed patents they should seek to commercialize. Vinit explains that they have used over 200 analysts, primarily engineers, to review patents according to a set scoring system. They go into the elements of this scoring system and how it measures the strength of a patent’s claims, the size of the market opportunity, and how good the story on infringement appears to be. They note that the size of the market opportunity often changes over time and requires periodic re-examination to identify cases where an invention was far ahead of the market when it was first patented. Over time, though, the market may catch up, and a patent that was too early once may become timely and valuable over time. John and Vinit then explore what MassVentures does once it has identified an unlicensed patent that appears to be infringed. Vinit explains that this often involves bringing on board a litigation funder and/or a law firm willing to work on a contingency basis to help make the case for pursuing the infringer. They also discuss the importance of investing in reverse engineering the infringing product before approaching the infringer to be certain that the university has a solid case. John and Vinit explore the reluctance some universities have to initiate patent litigation. They discuss the fear some universities have of adverse publicity and particularly the fear that such publicity would impact public funding. They also examine the impact that having prominent alumni associated with an infringing company or its research grants from that company can have on the decision-making process. John and Vinit then discuss licensing negotiations between the university and the infringer prior to initiating a lawsuit. They compare the relatively low revenues most universities currently receive from licensing efforts with Vinit’s experience at Boston University, which, over five and a half years, launched eight companies that raised over $350m. Finally, John and Vinit explore special purpose entities and their potential in commercializing patents. Vinit notes that in the future, such entities might become the best way to lower a university’s percentage of unlicensed patents, as they could essentially create a technology transfer office that is shared among several universities.

In this episode of ‘Law, disrupted,’ John is joined by Eric Winston, a Quinn Emanuel partner in the Los Angeles office. Eric is one the firm’s insolvency and restructuring partners. He is based in Los Angeles and appears in case around the country. Together, they discuss the Aearo bankruptcy case in Indianapolis, Indiana – a case where Aearo’s (solvent) parent, 3M Company, tried (but failed) to use Aearo’s bankruptcy to enjoin the largest MDL litigation in the federal court – the Combat Arms Earplugs MDL in Pensacola, Florida. This may be the first time in the recent history of “mass tort” bankruptcy cases that tort victims were able to defeat an injunction to protect non-debtor parent companies. The conversation begins with events leading up to the bankruptcy and the MDL, comprising over 250,000 product liability claims relating to defective earplugs sold to the US military. The discussion highlights the work of Quinn Emanuel associate Matt Hosen who found, buried in a large document production in a prior (and successful) antitrust case against 3M, an internal 3M document that became known as “The Flange Report.” John explains that the report by a scientist at 3M revealed that the earplugs that 3M had been selling to the U.S. military for over 15 years were defective. The report led to the filing of a False Claims Act suit against 3M and became important evidence in the resulting lawsuits filed by a quarter million active and former US service members. John and Eric then discuss Quinn Emanuel’s role in the ensuing mass tort litigation against 3M and Aearo, consolidated in an MDL proceeding in Pensacola, Florida. They recount the jury verdicts in “bellwether trials” and the sudden bankruptcy of just Aearo, in Indianapolis, as well as Aearo’s immediate efforts to extend the “automatic stay” protections of a bankruptcy filing to 3M, even though 3M itself was not in bankruptcy. John asks Eric what 3M was trying to accomplish by the bankruptcy filing. Eric explains that 3M’s goal was to use controversial bankruptcy tools, including the automatic stay, claim estimation or channeling injunctions into a bankruptcy plan, and forcing plaintiffs to file proofs of claim. These tools have been used in other major mass tort cases, such as in the LTL/Johnson & Johnson litigation, where a subsidiary holding the mass tort liabilities files for bankruptcy, but the solvent parent does not. In these cases, the debtors have been overwhelmingly successful in protecting the non-debtor parents. John and Eric discuss why this matters. As Eric explains, 3M wanted to channel the resolution of all the tort claims into bankruptcy and, in turn, force plaintiffs to take less than they would usually get in civil court litigation, resulting in 3M keeping more money. Eric and his colleagues were able to defeat this strategy. Together, John and Eric then cover the Aearo bankruptcy case, including the bankruptcy discovery, trial, and important cross-examinations, including the importance of a key funding agreement between 3M and Aearo. The discussion then turns to what happened in the MDL before and after the bankruptcy court denied the injunction Aearo sought for 3M’s benefit. This included the motions Quinn Emanuel filed in the MDL to stop 3M from arguing that it was not 100% directly and independently liable for all earplug litigation. Finally, John and Eric discuss Eric’s experience working more broadly with the plaintiff lawyers in their bankruptcy arena and their different approaches to litigation, as well as the impact the Aearo case may have in future “mass tort” bankruptcies, before concluding their discussion.

John is joined by Patrick D. Curran, Partner in Quinn Emanuel’s Boston and New York offices. They discuss the emerging issues regarding artificial intelligence currently before the courts, legislatures and government regulators and that, while many critical questions are pending before courts and regulators, clear answers are still few and far between. First, they discuss how despite the billions of dollars being invested in developing large language AI models, patent law often does not protect those investments because patents generally do not cover general ideas, mathematical concepts, or algorithms. They also discuss the question of whether an AI generated invention may be cited as prior art that would invalidate a human-generated invention. Patrick then explains that companies are increasingly relying on trade secret protections to safeguard their AI innovations, even though this approach comes with challenges. Patrick further explains that trade secret protection may extend indefinitely, unlike patents which expire after a defined term, but notes the difficulty inherent in detecting when competitors might be using proprietary models, making trade secrets harder to enforce. They also discuss AI’s role in invention, noting that while AI may create invent things, such as new molecules, if there is no human involvement in the process, the discovery cannot be patented. They then examine the legal challenges regarding the use of copyrighted material in training AI models, including whether using copyrighted material for AI training constitutes fair use, the degree to which companies can limit data scraping through their terms of service, and the role that technical safeguards against scraping might play in future disputes. They also discuss recent defamation claims based upon AI generated content and the difficulties of proving intent when human input to the content is minimal. The discussion then turns to recent regulatory developments, including recent legislation in US cities such as cities like New York City and Portland, Oregon, states including Colorado and California and international efforts like the European AI Act and the “Brusselization” of GDPR requirements. Patrick describes the industry’s divided stance on regulation, with some companies calling for stricter oversight while others fearing that regulation will stifle innovation. Finally, both John and Patrick agree that as courts and regulators tackle these complex issues, the legal landscape surrounding AI will continue to evolve rapidly.

In this episode of Law, disrupted, John is joined by Michael D. Hausfeld. Michael is widely regarded as one of the leading plaintiffs antitrust lawyers in the world. This episode examines how he achieved a $2.67 billion settlement, as well as market-changing injunctive relief for Blue Cross Blue Shield (BCBS) subscribers. The conversation begins with John and Michael discussing the background of the case, noting that BCBS is the single largest national provider of healthcare insurance with over a hundred million subscribers. Together, they discuss how Hausfeld LLP first came to be involved in the case more than 14 years ago, with Michael describing how a number of firms, including firms that compete with Hausfeld LLP, came to him with suspicions of anti-competitive behavior, asking if he could see whether or not there was an antitrust violation. They then discuss how BCBS structured its “Blue Network” so that each individual Blue Cross entity was considered an independent entity, yet none could compete for healthcare insurance in any state outside their designated territory. They explain how these ostensibly separate entities had essentially allocated markets between themselves and agreed not to compete with each other in violation of antitrust laws. John and Michael cover the extensive discovery taken in the case, including the numerous depositions taken and the millions of documents produced. Michael describes the privilege disputes over hundreds of thousands of documents and the mostly favorable rulings the plaintiffs obtained before a Special Master who examined every document in dispute. John and Michael then discuss the battle of experts in the case and how, unlike a traditional cartel case where the experts need only determine a “but, for” price, this case required the experts to actually model the marketplace and identify which areas within a state a competitive entity would have entered first, how that might grow, etc. The experts then modeled or extrapolated those results for all 49 other states. Michael explains the judge’s novel process for resolving expert disputes in which he had two economists educate him off the record on the factors that each side’s economists focused on in making their determinations. John and Michael then explore how the judge’s ruling on a motion to determine the applicable principle of law, later affirmed on appeal, set the stage for settlement negotiations to be productive. Michael explains how the scope of injunctive relief rather than arriving at the $2.67 billion settlement amount was the most difficult issue to negotiate. They examine how the injunctive relief obtained requires BCBS to restructure its Blue Network so that national BCBS accounts can obtain multiple bids at their choice. They also discuss how, because the national account market is the benchmark for the remaining portions of the market, that will affect competition for all insurance markets: national, regional and local. They then discuss the new cases Michael is now working on, including one involving whether or not a branded manufacturer of HIV drugs unlawfully extended the life of its patents so that it could control pricing, another involving whether or not the major rail carriers agreed not to compete on imposing a fuel surcharge, and a mass tort climate change case on behalf of a number of global south countries against major carbon emitters. Finally, John and Michael discuss Michael’s view that big tech, including Amazon, Microsoft, Google, and Meta will be a focus of a great deal of antitrust attention for some time into the future. Podcast Link: Law-disrupted.fm Host: John B. Quinn Producer: Alexis Hyde Music and Editing by: Alexander Rossi​

In this episode of the series “The Career Path of a Large Firm Associate,” John is joined by Homin Ban, a first-year associate in Quinn Emanuel’s Los Angeles Office. Together, they talk about Homin’s first sixth months at the firm. Homin shares with John his journey from law school to Quinn Emanuel, including Homin’s unique summer associate experience working remotely in South Korea as a result of the COVID-19 pandemic. They then discuss Homin’s time as a first-year associate, including navigating Quinn Emanuel’s “Work From Anywhere” policy, Homin’s first interactions with clients and partners, and the different types of cases and opportunities he has had thus far. ​

In the second episode of the series “The Career Path of a Large Firm Associate,” John is joined by Matt Arrow, a mid-level associate at Quinn Emanuel who joined the firm in 2021. They discuss life as a young associate, his progression into a mid-level role, and the support he received along the way. Matt discusses the impact of remote work on young associates and the adaptations he and the firm have made. Matt discusses his work experiences in just over a year at the firm, including his first deposition experiences, an upcoming arbitration, and some of the opportunities provided to him as early as day one at the firm. Podcast Link: Law-disrupted.fm Host: John B. Quinn Producer: Alexis Hyde Music and Editing by: Alexander Rossi​

In this episode of the series “The Career Path of a Large Law Firm Associate,” John is joined by Jack Baumann, who was elected a partner in the firm in 2022. John and Jack discuss his progression from associate to partner. Jack takes us through his transition from his 9th Circuit clerkship to joining the firm. They discuss Jack’s initial expectations as a new associate and his many firsts, including depositions, hearings, trials and other stand up opportunities and the mentorship he received along the way. Jack offers tips for managing stress and workload.

John is joined by Zina Bash and Ashley Keller, both Partners at Keller Postman, LLC which, with the Texas Attorney General, represented the State of Texas in an enforcement action against Meta Platforms for violations of Texas’s biometric privacy law. They discuss the landmark $1.4 billion settlement they obtained from Meta for capturing and using biometric identifiers like face geometry without consent, the largest settlement ever by a single state. They explain how Texas’s biometric privacy law differs from the better-known Illinois biometric privacy act because in Texas, there is no private right of action; only the state attorney general can bring lawsuits. Ashley explains that the claims against Meta concerned capturing biometric identifiers, such as the face geometry, of millions of Texas residents without informed consent, disclosing this data without permission, and failing to delete it after use. Among other defenses, Meta argued that because Facebook is a free service, it did not collect this information for commercial purposes. The State argued that Meta’s actions were clearly tied to its business model. Meta also argued that it should not be penalized for scanning the faces of non-Facebook users because Meta could not obtain informed consent from non-users. The court rejected this argument, ruling that this was still a violation of the Texas law. They then discuss how the settlement followed a fast-track 18-month litigation process, a stark contrast to a similar Illinois case against Meta, which lasted five and a half years. Zina attributed the speed of this case to the aggressive approach of the Texas attorney general’s office, which had been investigating Meta for over a year before the suit was filed. She explains that a major turning point was the Texas court’s decision requiring Meta CEO Mark Zuckerberg to sit for deposition. Zina explains that Meta faced potentially ruinous damages of $25,000 per photograph that appeared on Facebook or Instagram. The discussion then turns to broader privacy concerns. Ashley and John note that Americans’ attitudes towards privacy seems to have evolved, particularly regarding the intrusive data collection practices of tech giants like Meta. In the past, people might be willing to trade personal data for free services like social media, but more recently people are increasingly wary of how their information is being used without consent, especially as companies like Meta monetize that data. Finally, they note that most users don’t fully read or understand the terms of consent they agree to in user agreements, raising questions about how genuinely informed their consent truly is.

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.

In this episode of Law, disrupted, John is joined by John Hueston and Moez Kaba, Co-Founders and Partners at Hueston Hennigan LLP. Chambers has described John Hueston as “one of the top trial attorneys” in the United States and Moez as “a master in the courtroom.” Together they discuss an arbitration in which they obtained both a $175 million plus 5% ongoing royalty (an estimated $50 million annually) award in arbitration – one of the largest U.S. trademark awards ever – and a federal jury trial verdict for more than $271 million (a potential record for a Lanham Act case) for clients Monster Energy and Orange Bang against Vital Pharmaceuticals, Inc. (VPX), the maker of Bang energy drinks. The conversation begins with John Hueston explaining the background of the dispute. He discusses how for 40 years, Orange Bang had a widely known trademark for the term “Orange Bang” as a beverage. He then explains that VPX licensed the use of the term “Orange Bang” but only in connection with creatine-based beverages in the nutrition market. The discussion turns to the rise of VPX to become the third largest competitor in the energy drink market, thanks to their product, Bang Energy. The discussion then turns to the issues in play in the arbitration, including how John and Moez had to prove both the licensing agreement’s validity and that the trademark had been infringed. They explain their strategy of making the three-week arbitration about the science creatine and how they used VPX’s own documents and witnesses’ depositions to work in their favor. They also explained how they boxed in VPX’s CEO into questioning the ingredients of his own energy drink. Moez and John discuss how they proved trademark infringement using survey evidence, historical admissions, and strong equitable stories, including how VPX signed the licensing agreement knowing confusion would ensue. They explain why they decided to take a conservative approach to monetary damages rather than asking for more than $1 billion, which expert analysis could have supported. This approach resulted in an award of $175 million plus 5% royalties going forward. John then moves the discussion to the Lanham Act jury trial. Moez begins by noting the nine-month time difference between the arbitration and the federal trial and that Monster had filed its lawsuit in California in 2018 before the arbitration proceedings began. In the lawsuit, Monster alleged that VPX advertised its product as a game-changing beverage, which was “nothing short of a miracle drink that delivers benefits and cures that have evaded scientists for decades.” Monster also alleged that VPX had misappropriated Monster’s trade secrets by hiring Monster employees and telling them to bring Monster’s confidential information over with them and interfered with Monster’s contracts with retailers by removing Monster’s products from shelf space it paid for and putting Bang into that shelf space. John Hueston and Moez then explain their unique approach to mock jury exercises in which they overweight the other side’s arguments to help develop their approach both before starting discovery and to prepare for the trial. They also discuss the strict time limits the Court placed on the trial and how they were able to present their case involving complex health, science, and legal issues. Moez explains how they developed their themes that VPX was lying to consumers about what they put in their beverages, cheating competitors by taking confidential information and stealing shelf space away from Monster Energy in supermarkets. They discuss how instead of calling VPX’s CEO to the stand first, they targeted high-level executives who could confirm VPX’s false statements first and then sandwich the CEO’s examination between experts who admitted that Monster’s scientific claims were correct. Finally, the discussion turns to the two critical points of the trial that gave John & Moez the confidence to believe the jury would rule for them: the jury’s reaction to John Hueston’s cross-examination of VPX’s CEO and Moez’s ability to reduce the scientific issues to a level that was understandable and compelling to a working-class jury. Ultimately, the jury awarded Monster more than $271 million on its Lanham Act claim. Podcast Link: Law-disrupted.fm Host: John B. Quinn Producer: Alexis Hyde Music and Editing by: Alexander Rossi​