Law, disrupted｜法律访谈 - 节目列表

How did one article in the newspaper turn into a $12bn case? It starts with the Affordable Care Act, the “risk corridors program” incentivized insurers to enter the new health insurance marketplace by agreeing to backstop outsized losses in the first three years of the exchange’s existence. The Government was refusing to pay amounts in full, losses mounted, and bankruptcies stacked up across the health insurance industry and the country. One little article covering such a bankruptcy crossed JD Horton’s desk and…the rest (all $12 billion of it) is covered in this podcast! In this episode of Law, disrupted, John joins Quinn Emanuel partners Stephen Swedlow & J.D. Horton, who led the recovery of billions of unpaid funds owed under the program in a case that went all the way to the US Supreme Court. In their discussion, they describe how they developed the statutory claim against the federal government under the Tucker Act, and reveal why health insurance companies were reluctant to sue the government and “bite the hand that feeds them.” Highlighting some of the challenges and push-back that they faced along the way, Stephen talks about crisscrossing the country to get 150 entities to join the claim he and Horton were heading, despite competition from several leading healthcare specialist law firms. Tune in for a blow-by-blow description of the tactical decisions they made that led them to victory! The first to file a “risk corridors” case in the nation for reneging on Obamacare’s promise, John’s guests detail how they worked together to drive their prosecution all the way up to the highest court in the land, and win!

John is joined by Hisaya Kimura, Senior Counsel in the Tokyo office of Nagashima Ohno & Tsunematsu. They discuss aspects of the Japanese legal system, including Japan’s historical adoption of the German civil procedure system and subsequent incorporation of elements, such as cross-examination, of the American system. They also discuss how Japanese litigants typically exchange multiple detailed briefs covering both factual and legal issues in detail for years before trial followed by trials that last less than a day with only one witness testifying for each side. They also discuss key differences between Japanese and American litigation, including the absence of discovery, juries, and punitive damages in Japan as well as the application of the beyond reasonable doubt standard in civil litigation. Finally, they discuss recent changes to the legal profession in Japan, including the expansion of Japanese law firms beyond litigation to include advice on regulatory, M&A and competition issues, the expansion of leading Japanese firms into international markets and the impact foreign firms have had by opening Japanese offices.

ESG—or environmental, social, and governance—criteria seems to be everywhere these days. With social issues more visible than ever in our interconnected world, consumers and investors alike are paying more attention to how the businesses they support will help or hinder greater progress for society as a whole. With new metrics for assessing social and environmental impact evolving and targets being embedded into corporate strategy, ESG data is informing decision-making around the world. In this episode of Law, disrupted, John and his guests discuss navigating the evolving ESG legal landscape. This episode features Andrew Malk, the Managing Partner of Malk Partners, a consulting firm focused exclusively on advising private equity firms and investors to create, protect and monitor value through ESG management. John also welcomes Anthony Alden and Julianne Hughes-Jennett, Partners in Quinn Emanuel’s Los Angeles and London offices. During their conversation, John’s guests share insights on how we got to where we are today, what to expect in the future, and what they are seeing from a reputational, regulatory and litigation perspective. They discuss whether society is expecting more accountability from businesses, and highlight a potential shift in the way we view the social contract between businesses, corporations, and individuals. With the rise of concern over sustainability and climate change, companies are experiencing increased pressure to make “green” claims and commitments. The three explore the emergence of various ESG rating systems that aim to meet such demands for transparency and discuss the inherent challenges in simplifying and standardizing comparable metrics. They then consider the SEC’s landmark proposal, which would require public companies to disclose extensive climate-related information in their filings, and debate what matters, and what should be measured. In this conversation, John and his guests detail how ESG considerations are surfacing in the US legal landscape compared with that of the UK and Europe, and highlight an uptick in greenwashing claims as we look to the future wave of ESG litigation.

John is joined by Bill Price, partner in Quinn Emanuel’s Los Angeles office, and Steig Olson, partner in Quinn Emanuel’s New York office. They discuss the landmark $110 million jury verdict, trebled to $330 million under antitrust law, Bill and Steig recently won in the U.S. District Court for the District of Northern California. The award will be increased to compensate for the costs and attorney’s fees incurred by the plaintiff. The dispute arose when Commercial Metals, a Texas-based competitor of Pacific Steel, purchased and shut down California’s only rebar mill, creating a regional monopoly in the rebar market—a critical component in construction. Pacific Steel planned to disrupt this monopoly by building a state-of-the-art, environmentally friendly steel mill using advanced Italian technology. However, Commercial Metals allegedly pressured the Italian supplier to block plaintiff Pacific Steel from accessing the necessary technology by creating a 500-mile radius “exclusivity” zone for the Italian technology around the steel mill they bought and shut down. Victory at trial hinged on simplifying a complex antitrust narrative into a clear, compelling story. Bill and Steig narrowed their case by focusing on the core issues, cutting extraneous expert testimony to streamline the presentation. They used an adverse witness, the former CEO of Commercial Metals, to expose the company’s internal communications, which highlighted its intent to maintain market dominance by obstructing Pacific Steel’s plans. Bill’s cross-examinations proved pivotal in exposing contradictions and discrediting the defendants’ narrative. The defendants primarily argued that the relevant market extended beyond California and that their exclusivity agreements were standard competitive practices. However, the jury found these defenses unconvincing, especially in light of evidence of deliberate efforts to suppress local competition and inflate prices. They also discuss the skillful collaboration between Steig, a rising young trial attorney, and Bill, a seasoned litigator renowned for his many trial victories. This case underscores the importance of strategic focus, persuasive storytelling, and adaptability in high-stakes litigation.

Nearly 300,000 United States service members and veterans are suing technology and manufacturing giant 3M over claims that their supply of military earplugs caused soldiers to suffer hearing loss, tinnitus, and other hearing difficulties. The dual-ended Combat Arms Earplugs (CAEv2) were standard issue equipment for US soldiers in Iraq and Afghanistan for over 10 years. In this episode of Law, disrupted, host John Quinn and his guests, Matt Hosen and Bryan Alystock, discuss how this defective earplug litigation started and evolved into the largest consolidated mass tort litigation in history. To open the episode, Matt Hosen shares how, as a second year Quinn Emanuel associate, he found, buried in a large document production in an antitrust case in which the firm represented a company called Moldex-Metric, an internal 3M document which became known as “The Flange Report.” He 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. Matt goes on to describe how Hal Barza, a former Quinn Emanuel partner, used the Flange Report in depositions of 3M laboratory employees to great effect; leading not only to the resolution of the antitrust case, but also the commencement of a whistleblower False Claims Act (Qui Tam) case brought against 3M on behalf of the U.S. government. In connection with this Qui Tam lawsuit, the Flange Report was brought to the government’s attention, leading to the United States Department of Justice’s intervention in the case. 3M entered into a settlement with the U.S. government in 2018 agreeing to pay $9.1 million to resolve allegations it knowingly sold the earplugs to the U.S. military without disclosing the CAEv2 defects. The DOJ issued a public press release in July 2018 announcing the Qui Tam settlement. Bryan Aylstock, managing and founding partner of Aylstock, Witkin, Kreis & Overholtz, based in Pensacola, Florida, then joins the conversation to explain how this DOJ press release led to the plaintiffs’ mass tort bar filing cases all over the United States on behalf of U.S. service members alleging product defect, failure to warn and fraud claims. These cases were later consolidated into a multidistrict litigation (MDL) in Pensacola before Chief District Court Judge Casey Rodgers. Judge Rodgers appointed the Alystock firm to lead a Plaintiff Leadership Committee consisting of over three dozen law firms, including Quinn Emanuel. Judge Rodgers oversaw all aspects of discovery in the MDL, and with input from plaintiffs’ and defendants’ counsel, selected individual service members to serve as bellwether plaintiffs. Bellwether trials began in April, 2021. Plaintiff service members have achieved victory in 9 of the 15 bellwether trials to date, receiving over $222 million in damages. In the most recent bellwether trial, a Gainesville, Florida jury found in favor of the army veteran on all counts and awarded $2.2 million in compensatory damages. If the average awards in these bellwether cases, including the defense verdicts, are applied across the nearly 300,000 service member lawsuits currently pending, 3M’s total exposure would be over $1 trillion. With the bellwether process almost concluded, the guests explain how hundreds of individual lawsuits are now completing discovery, prior to being remanded to federal judges across the country for trial.

Cryptocurrencies are tearing up the financial and technological playbook with new projects breaking ground every day. Despite recent fluctuations, the popularity of all things crypto continues to grow in leaps and bounds. Parallel to this astronomic growth is the mounting interest in a cryptocurrency regulatory framework to curb the potential for money-laundering and other crimes in this here-to-stay financial system. This week, Law, disrupted is tackling these very issues. In this episode of Law, disrupted, John Quinn is joined by Katie Lemire, Partner at Quinn Emanuel Urquhart & Sullivan’s New York City office, and Ellen Zimiles, partner at Guidehouse, where she heads the Financial Services Advisory and Compliance practice. Together they discuss issues surrounding the crypto industry’s legal and regulatory frameworks, diving into the role of financial regulators and institutions in the crypto realm. They speak to the historically mandated role of banks in preventing money-laundering and terrorist funding, and how crypto will operate successfully if required to do the same. They analyze compliance at both federal and state levels, with the New York state regulatory framework for cryptocurrency being a leading example for the other 49 states. They chew over the legal risks from a regulatory and compliance standpoint and finish by noting how regulators can keep up with crypto’s explosive growth, as well as highlighting the future of anti-money-laundering compliance tools.

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 Lori to provide some advice to current or prospective college athletes about what to expect when trying to navigate the NIL laws. Among other advice, she suggests that athletes exercise caution with their NIL rights, as a misstep in this field could jeopardize their eligibility. She also suggests that they consult frequently with their school athletic director to learn the school’s policies in addition to the NCAA’s rules and the applicable state law.

John Quinn is joined by Karl Hennessee, Senior Vice President and Head of Litigation, Investigations, and Regulatory Affairs at Airbus. Karl supervises Airbus’s criminal investigations, regulatory cases, product liability cases, and commercial arbitration disputes, covering incidents as significant as air crashes, as well as other disputes. He discusses the importance of maintaining a “hundred-year view” of issues that includes overseeing issues that arose 50 years in the past while preparing for regulatory challenges 50 years in the future. His team includes specialists in AI, aircraft certification, and arbitration, all of whom share a “democracy of ideas” approach to developing case strategies. Karl identifies three core principles that guide Airbus’s dispute management: viewing disputes as tools for managing risk rather than ends in themselves; “strategic empathy” — understanding opposing interests and perspectives to improve outcomes; and humility in handling high-stakes, high-profile cases. In house lawyers need to earn trust by translating legal issues into actionable insights for business leaders, often by first understanding the technical aspects of Airbus’s products. Public relations play a critical role in managing disputes, especially for a company under constant public scrutiny. There must be close collaboration with communications teams to present balanced narratives and build public trust even in adverse situations. John and Karl also discusses emerging areas of concern such as ESG regulations and the recent breakdown of international norms of comity and deference to foreign judicial decisions, especially with respect to the effect of international sanctions. Karl has extensive experience in international arbitration and is the former Chairman of the Governing Body of the ICC Court of International Arbitration. He offers his insights about potential improvements in arbitration, particularly requiring shorter case timelines, having early case assessments to weed out hopeless frivolous cases and other suggestions summarized in a recent paper published by the London Court of International Arbitration. Finally, he shares advice on work-life balance, emphasizing the importance of dedicating time to personal interests and preserving a sense of fulfillment in both professional and personal life.

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 guns and how they’ve become the choice guns for criminals in the USA, with law enforcement seizing more and more ghost guns. Duane highlights Quinn Emanuel’s involvement in a lawsuit against a ghost gun company, Polymer80, a case that is set for trial next year.

John Quinn is joined by Alex Spiro, partner in Quinn Emanuel’s New York and Miami offices and one of the best-known trial lawyers in the U.S. Alex explains that his approach to trial preparation is to immerse himself into the evidence as trial approaches. He reads every relevant document to understand even tangential details, rather than just looking for “hot docs.” This deep dive helps him construct a narrative that, if all goes well, leads the jury to a collective “Eureka” moment, where the verdict becomes clear. Alex also explains that he does not rely on mock juries and external validation because his themes must resonate with his own beliefs to be compelling. Instead, he prefers to bounce ideas off colleagues who may suggest course corrections. Alex says that understanding human psychology is crucial because the motivations behind actions often matter more than the actions themselves. The discussion turns to how Alex balances the demands of multiple cases while remaining completely focused on the next upcoming trial. He credits his ability to compartmentalize and work long hours, as well as strong support from trial teams. He also explains to clients from the outset that during their “moment of truth,” he will prioritize their case entirely, but before then, he might be prioritizing the impending trials of other clients. The discussion then turns to criminal justice reform, a subject Alex is passionate about. He describes the criminal justice system as structurally biased, especially against marginalized communities. He identifies the most urgent priorities for reform as bail reform, sentencing disparities, and changing the current system’s backward-looking nature, which he believes perpetuates outdated and discriminatory standards. When asked about AI’s role in sentencing, Alex expresses concerns that AI could reinforce existing biases by relying on historical data, potentially leading to harsher outcomes, particularly for first-time offenders. Finally, John and Alex discuss that it has become harder for lawyers to represent controversial clients but emphasize the importance of doing so

In this episode of Law, disrupted, John is joined by Tom Clare, founder of Clare Locke LLP. Clare Locke specializes in defamation cases and was recently in the news for representing Daniel Michalow in his claim against Wall Street hedge fund, D.E. Shaw & Co. This episode delves into Mr. Michalow’s case in which Mr. Michalow was accused of sexual harassment. The case resulted in a $52 million FINRA award against de Shaw and Co. John starts the conversation by asking why more claims similar to Mr. Michalow’s aren’t asserted. When Tom responds, he explains in detail the burdens an individual plaintiff faces in bringing such a claim, including protracted litigation (in this case, four years) and enormous costs that most individuals cannot afford. Tom also provides the listener with a background to FINRA and arbitration under FINRA’s rules. John and Tom then dive deep into the case, first discussing the factual background, with Tom noting how D.E Shaw terminated Mr. Michalow’s contract at the hedge-fund firm citing allegations of inappropriate conduct in the workplace. Tom notes that this was not an employment case; Mr. Michalow did not dispute his termination. Rather, Mr. Michalow objected to the hedge fund’s statements to Business Insider that Mr. Michalow had engaged in gross violations of the firm's standards and values and that his employment was swiftly terminated as a result. These statements were made after Mr. Michalow had written to the head of the firm and asked that the firm tell the truth about his situation. John and Tom discuss that while the firm’s statements did not explicitly say that Mr. Michalow engaged in sexual misconduct, that is what the public understood the statements to mean. The discussion turns to the arbitration process itself, including the 25 days of hearings and extensive discovery conducted by the parties. Tom describes the burden of proving that his client did not engage in sexual misconduct as well as the differences in proving defamation claims for public figures as opposed to private figures. He also explores the importance of suggesting why a defendant was motivated to act as it did, even when that is not strictly an element the plaintiff must prove to make a claim. John and Tom turn to the role expert witnesses play in defamation cases. They explore the interplay between experts who testify to the linguistic history of the words at issue and those who testify to the real-world interpretation of words and how the latter now use social media comments to show the way people in the real world react to certain terms. They then turn to the results of the arbitration including the $52.1 million award and the findings posted on FINRA’s website. John and Tom then engage in a conversation about the role of reputation in today’s society in the workplace, within a professional community, at church, at home and in neighborhoods. They also discuss the legal obstacles to bringing a defamation claim, including that name calling, hyperbole and opinions are not actionable. Finally, the two discuss Tom’s decision to found his own firm devoted to bringing defamation claims, other high profile cases his firm is handling and his recommendations to individuals who find themselves facing defamatory statements. Tom explains the importance of creating a written record, warning the defaming party of the consequences of its actions and promptly demanding retractions of defamatory statements.

John is joined by four members of the trial team that obtained a dismissal of all charges in the recent New Mexico manslaughter case against Alec Baldwin. Mr. Baldwin was charged by the State of New Mexico with involuntary manslaughter following the death of cinematographer Halyna Hutchins on the set of the film Rust when a prop gun Mr. Baldwin was holding accidentally discharged. They discuss the events of the tragic accident and the initial investigation by the District Attorney’s office, which did not suggest any intent to charge Mr. Baldwin with a crime until about ten minutes before the press release announcing the manslaughter charges. They also discuss the resignation and replacement of the first Special Prosecutor, the FBI’s destruction of the gun while testing it and the prosecution’s subsequent dismissal of charges without prejudice, only to suddenly refile the charges later. Luke describes the team’s pretrial motions to dismiss based upon the destruction of the gun, the withholding of evidence from the defense, and improper conduct by the prosecution before the grand jury. On the question of why there was live ammunition on a movie set, a critical breakthrough came during trial when witnesses testified that a former law enforcement officer had informed the prosecution that he had stored live ammunition for the film’s prop supplier. The testimony revealed that these live rounds were potentially mixed in with dummy rounds used to train actors on other movie sets, offering a plausible alternative explanation for the live bullets found on the Rust set. The prosecution withheld this information from the defense before trial even though it cast doubt on the prosecution’s theory that the film’s young armorer was responsible for introducing live rounds to the set. The judge, after learning that the concealed bullets matched the type used in the fatal shooting, ruled that the prosecution had failed to disclose critical evidence and dismissed the charges mid-trial due to prosecutorial misconduct.