“If you don't like the law, change it” is a fine slogan—but what if doing so is a way to duck an otherwise valid Freedom of Information Act request and shut down the flow of information to the public?

That's the question before the Illinois State Supreme Court today. Represented pro bono by Kirkland & Ellis, the Institute for Justice is challenging an appellate court decision that greenlighted a maneuver by the state legislature when faced with a FOIA request it didn't want to comply with.

One extra-cool thing about the argument: It's happening at the University of Illinois Urbana-Champaign's performing arts center as part of an effort by the court to better inform the public of its work by “riding circuit”—and the tickets have been snapped up.

Kirkland's client has nine amici on its side, including the Illinois ACLU, Better Government Association, Illinois Press Association, Illinois Policy Institute, Reporters Committee for Freedom of the Press, Chicago Council of Lawyers and Chicago Appleseed Fund. Still, lead partner Jeffery Lula will have a tough fight on his hands.

In 2013, the Institute for Justice sought information from the Illinois Department of Financial and Professional Responsibility about complaints about licensed cosmetologists and hair braiders. (Part of the group's mission is to go after what it sees as “unreasonable licensing requirements,” using quantitative research on the impact of such regulations as ammunition.)

The state agency first ignored the request and then refused to comply, citing six blanket exemptions—none of which it continues to assert.

Instead, the state now points to a law enacted 16 months after the FOIA request, which limited the disclosure of exactly the information the group sought.

What a fortuitous coincidence.

Why the state would even care about shielding complaints involving hair braiders from the public isn't clear from the court papers. But that's not really the point.  

“This ruling could create a 'Deny Now—Lobby Later' mentality,” Lula wrote. “The public body can deny any request with impunity, knowing that it can lobby to change the law if the FOIA requester has the resources and stamina to pursue litigation. This approach may be particularly appealing to frustrate requests by unpopular or politically adverse groups.”

It's also bad news for lawyers, who often agree to pursue FOIA cases because there is a fee-shifting provision in the statute. Indeed, the institute won the first round at Chancery Court and was granted $35,000 in attorneys' fees and costs—money which was subsequently stripped when it lost at the appellate level.

“Under the law at the time of filing, it is undisputed that IJ should have prevailed and been awarded its fees. But the law changed after filing,” Lula wrote. If the appellate ruling stands, it will create a “race to and through the courthouse … and will place a burden on judges to resolve cases faster than the Illinois General Assembly can pass a bill.”

The state of Illinois argues it did nothing improper, and that the court isn't actually being asked to apply the law retroactively.

“The disclosure of information 'takes place only in the present or the future … not in the past,'” wrote assistant attorney general Aaron Dozeman. “A FOIA action resolves whether the plaintiff is entitled to information, not whether it was entitled to information.”

“No one is arguing that laws can somehow be applied before they become effective,” Dozeman continued. But the plaintiffs “fail to recognize that applying these intervening amendments to a claim for solely prospective relief is not properly characterized as a retroactive application of law to begin with.”

He added, “And attorney fees have nothing to do with the scope of a person's right to information under FOIA. Fee awards are determined by the disposition of the case.”

 

Wilmer; Cooley; Davis Wright on Tap in Theranos Suit

Lawyers from Wilmer Cutler Pickering Hale and Dorr; Cooley and Davis Wright Tremaine took the lead in squaring off against the U.S. Securities and Exchange Commission in one of the agency's biggest fraud cases of the year: charges against Silicon Valley-based blood testing company Theranos Inc., its founder and CEO Elizabeth Holmes, and its former president Ramesh ”Sunny” Balwani.

Theranos tapped a pair of Wilmer partners: Thomas Strickland is a former U.S. Attorney for Colorado who also served as a senior Interior Department official in the Obama administration, and Christopher Davies is a vice chair of the firm's securities department.

Holmes turned to Cooley's John Dwyer. He's the partner-in-charge of the firm's Palo Alto office, with a roster of clients that includes Adobe, Dow Chemical, eBay, Ernst & Young and Morrison & Foerster.

Both Theranos and Holmes settled with the SEC without admitting or denying wrongdoing. Each was hit with a $500,000 penalty, and Holmes was stripped of control of the company she founded. She is also barred from serving as an officer or director of a public company for 10 years.

Balwani didn't settle, and the SEC is pursuing charges against him in U.S. District Court for the Northern District of California. The agency alleges he was part of a scheme to deceive investors that the company had successfully developed a commercially-ready portable blood analyzer that could perform a full range of laboratory tests from a small sample of blood.

He is represented by Jeffrey Coopersmith, who is based in Davis Wright's Seattle and Los Angeles offices. A former federal prosecutor, Coopersmith was a partner at DLA Piper before joining Davis Wright in 2012.

For more, see SEC Charges Theranos, CEO Holmes, and Former President With Investor Fraud

 

When Gibson Dunn Stops Being Polite

The gloves are in a trade secrets suit filed by Gibson, Dunn & Crutcher in Manhattan federal court on behalf of pharmacy startup Blink Health against competitor Hippo Technologies.

It's one of those blistering complaints that's just fun to read.

As in, “Defendant Hippo is a rogue and fraudulent enterprise that is trying to cheat its way into the market by outright thievery. Defendant is attempting to side-step the process of honest business development and competition on the merits, in favor of stealing and misusing Blink's valuable trade secrets,” wrote the Gibson team, which includes partners Orin Snyder and Alexander Southwell, of counsel Angelique Kaounis and associate Babak Ghafarzade.

“Lacking any ingenuity of its own, Defendant's second-rate copycat competitor business appears to be premised entirely on a blatant and cynical misappropriation of all aspects of Blink's unique and proprietary business model.”

Blink wants compensatory damages of no less than $50 million and punitive damages of $200 million as well as other relief.

Hippo co-founder Gene Kakaulin told my colleague Scott Graham that Blink's claims reflect its “toxic corporate culture.”

Read the full complaint here.

 

What I'm Reading

 What It's Like to Be Ben Brafman: Confessions From a Big-Time Criminal Defense Lawyer

A delightful profile by Susan DeSantis of “the last of the big-time defense attorneys.”

Burford Investors Get Rich as Financier Deepens Am Law 100 Ties

In two years, Burford's shares have risen more than 500 percent. Are you kicking yourself for not investing?

When Scalia Died: New Documents Capture Confusing Day

One email exchange seems to reflect concern that the Marshals Service would get in trouble for not being with Scalia at the ranch.

Average Shareholder Settlement Value Dropped 75 Percent Last Year, Report Says

More than half the settlements last year were $5 million or less—a number and proportion not seen in the past decade. Sad.

Judge Cites 'Troubling' Morgan Lewis Conduct, but Firm Skirts Disqualification

The San Francisco-based judge said Morgan Lewis would be prohibited from cross-examining several would-be witnesses.

Delta Passenger Indicted for In-Flight Sexual Assault

Pervert.

Chadbourne Settles Sex Bias Case That Shined Light on Big Law Pay Gap

The defendants will pay $1 million to former Washington, D.C.-based Chadbourne partner Kerrie Campbell, $750,000 to New York-based Mary Yelenick and $250,000 to former Ukrainian partner Jaroslawa Johnson, as well as $1.08 million in attorney fees to plaintiffs firm Sanford Heisler Sharp.

Parents of Murdered DNC Staffer Seth Rich Sue Fox News Over Pulled WikiLeaks Story

“The pain and anguish that comes from seeing your murdered son's life and legacy treated as a mere political football is beyond comprehension.