Our Litigator of the Week is Theodore “Ted” Wells Jr. for his win in a headline-grabbing clash of the titans in New Jersey. The Paul, Weiss, Rifkind, Wharton & Garrison partner was tapped by New Jersey Governor Phil Murphy in a face-off against South Jersey politico George Norcross. At issue: the fate of the governor's task force to investigate the state's tax incentive programs.

The case, which has attracted immense public interest, raises unprecedented legal issues that go to the heart of the state's ability to govern. Wells discussed the matter with Lit Daily.

Lit Daily: Can you tell us a bit about the case and what was at stake?

Ted Wells: This was one of the highest-profile cases in New Jersey in years. It involved an attempt to shut down a task force formed six months ago by Gov. Phil Murphy to investigate possible mismanagement issues at the state's Economic Development Authority, which has handed out billions of dollars in tax incentives over the past decade.

On June 17, we argued the case in front of a packed courtroom, filled with press and television cameras, and the proceedings were streamed live, underlining the importance to the state.

The case began on May 21, when a group of plaintiffs who had been awarded state tax incentives sued our clients—the governor, the task force, and its chairman, Ronald Chen, a former dean of Rutgers Law School, and outside lawyers—claiming that they were being unfairly targeted by the investigation. They claimed that they had the right to cross-examine any witness who said negative things about them at the task force's public hearings. They also alleged that the governor did not even have the authority to form the task force, and that the task force in any event had no power to investigate them as private individuals.

On June 6, after the task force announced that it was prepared to release its initial report, the plaintiffs sought a preliminary injunction preventing it from doing so, or from holding a public hearing to discuss its findings. Meanwhile, the programs are set to expire on July 1, 2019, and legislative hearings to determine their fate are ongoing.  

Give us some background on the plaintiff, George Norcross III, and the legal team he assembled.

The press described this as a clash of two of the most important political figures in the state—the governor and Mr. Norcross, who has been described as one of the most prominent political power brokers in New Jersey. The other plaintiffs are four entities that were awarded tax incentives and a law firm that advised them.

In their efforts to enjoin the task force investigation, the plaintiffs recruited what has been described as a legal “dream team,” including former Secretary of Homeland Security Michael Chertoff and Herbert Stern. Both are major national figures, and both had served as New Jersey U.S. Attorneys and as federal judges. They also hired Kevin Marino and Michael Critchley, two of the state's most prominent trial lawyers.

How did you get involved in this case?

Shortly after the complaint was filed, the governor reached out to me and Paul Weiss to represent him and the task force, and I accepted immediately, given the important public policy issues the case raises and the great honor of representing the governor in such an important case.

Another big draw for me was litigating against great lawyers on the other side. I have known each of them for over 30 years and we are close friends who have done many cases together—sometimes on the same side and sometimes against each other. We all respect and admire each other. In fact, we all hugged each other outside the courtroom before the oral argument, and again at the end of the court proceeding.

You had 96 hours to research, draft and file a 40-page rebuttal to Norcross's injunction motion. How did you respond to such a compressed schedule?

We were told by the court on a Thursday afternoon that we had to file our brief opposing the request for a preliminary injunction by Monday at noon. What that meant as a practical matter is that our team had to work night and day, including Saturday and Sunday, to produce an excellent brief on an issue of huge public importance. We worked under intense time pressure, but we had a great team, and produced a great brief.

Oral arguments before Mercer County Superior Court Judge Mary Jacobson lasted more than four hours. Take us into the courtroom. What was the experience like?

It was an extraordinary experience for me. We had cameras pointed at us all day, live-streaming on NJTV. It was a continual reminder at just how intensely the public was focused on this and how important it was to the state.

The plaintiffs had three extraordinarily talented lawyers arguing on their side. I was the only one arguing for the governor. I really had to bring my “A” game.

As a longtime New Jersey resident, I was extremely gratified to be a part of this case. The issues involved go to the heart of the ability of the state government to govern and the people to know about how their government is doing its job.

When you're on the spot like that, what have you learned over the years about how to keep your cool and effectively advocate for your client?

There is no substitute for hard work and preparation. Leading up to oral argument, we spent a lot of time reviewing the case law and legislative history, and developing our strategy. It is much easier to keep your cool when you know you are well-prepared and have thought in advance about how to handle tough questions from the court.

Did you make any unconventional strategic decisions in litigating the case?

The case itself was unconventional in the extreme. The relief plaintiffs were seeking was radical and unprecedented; they were demanding to stop a public hearing of an investigative task force unless they were given “trial-like” cross-examination rights.

Their claims implicated state statutes that had not previously been the subject of much litigation or precedent, and the governor's authority under the main statute at issue had not been litigated before. So much of this was legally uncharted waters.

We adapted our strategy to fit this reality, and it proved very effective. We spent our time in briefing and oral argument detailing the legislative history of these statutes, which itself was somewhat limited, so we also drew on precedents involving analogous statutes outside of New Jersey.

What was your overarching theme in defending the work of the task force?

One theme that we kept returning to was that the governor, under the New Jersey Constitution and state law, has broad authority to oversee and supervise state agencies and officials.

That supervisory authority was especially important here, where prior reviews of the tax incentive programs had revealed significant problems in the oversight of the application process. The judge noted those reviews had painted a “troubling picture of lack of oversight” within the EDA.

At the same time, we highlighted the pressing, critically important public interest in the task force's work. It was essential to inform the ongoing deliberations by the governor, the legislature, and the public about whether to renew the programs and what changes to make.

What happened after Judge Jacobson issued her decision?

The judge ruled in our favor immediately after oral argument, and denied the plaintiffs' application for a preliminary injunction blocking the release of the task force's first report, but I wanted to make sure I understood what my client was permitted to do.

The hearing and the report had been put on hold after the preliminary injunction application was filed, until the court had a chance to rule. So I made sure to ask the judge, who confirmed that there was no restraint against the issuance of the report or conducting future hearings. The task force publicly issued its report shortly after the hearing, and the report's findings became front-page news.

But the case is not yet over. The court's ruling only found that the plaintiffs had not met the burden of establishing a probability of success on the merits. We must still file and argue our motion to dismiss the entire case on the merits. But what is important is that the task force has been permitted to issue its report to the public, the governor and the state legislature, and that the task force can continue its important work.

Tell us about the members of your team—how did you all work together?

We assembled a stellar team on Gov. Murphy's behalf, including my partner Kannon Shanmugam, a nationally renowned appellate and Supreme Court advocate who recently joined Paul Weiss, and Yahonnes Cleary, a rising star in our litigation department. We also had several extremely talented associates on the team: Ben Moskowitz, Alison Benedon, Jamie Witte and Daniel Friel, and some wonderful paralegals. They were tireless. It was a joy to work with all of them.