Law, disrupted is a podcast that dives into the legal issues emerging from cutting-edge and innovative subjects such as SPACs, NFTs, litigation finance, ransomware, streaming, and much, much more! Your host is John B. Quinn, founder and chairman of Quinn Emanuel Urquhart & Sullivan LLP, a 900+ attorney business litigation firm with 29 offices around the globe, each devoted solely to business litigation. John is regarded as one of the top trial lawyers in the world, who, along with his partners, has built an institution that has consistently been listed among the “Most Feared” litigation firms in the world (BTI Consulting Group), and was called a “global litigation powerhouse” by The Wall Street Journal. In his podcast, John is joined by industry professionals as they examine and debate legal issues concerning the newest technologies, innovations, and current events—and ask what’s next?
Section 1782—US Style Discovery for Cases in Foreign Courts
In this episode of Law, disrupted, John is joined by Lucas Bento, Of Counsel in Quinn Emanuel’s New York office. Bento is the author of The Globalization of Discovery: The Law and Practice under 28 U.S.C § 1782 (Section 1782), the first and only book to discuss the law pertaining to that Section. John and Lucas discuss how, under Section 1782, parties to proceedings outside of the US can invoke discovery procedures inside the US in aid of those foreign proceedings. John notes how many foreign lawyers he talks to complain about the relatively burdensome US discovery system. Yet they also envy it, especially if you’re a plaintiff. US law has a procedure to achieve US-style discovery of evidence or witnesses located in the US – Section 1782 of Title 28 of the United States Code.
The conversation begins by outlining what exactly Section 1782 is. Lucas notes it's a federal statute that allows a party to a foreign proceeding to gain access to US discovery procedures and evidence (including documents and depositions) for use in the foreign proceeding. Historically, one would need to use letters rogatory or go through the Hague Convention on the Taking of Evidence. But Section 1782 provides many advantages over those tools. For example, under the Hague Convention, US-style depositions are not available; however, under Section 1782, if there is a witness subject to the jurisdiction of the US courts, they could be served with a subpoena and get a complete US-style deposition. Lucas highlights how powerful a tool §1782 can be, working as a global evidentiary X-ray machine.
John asks how one invokes §1782, with Lucas highlighting the application process and the necessary requirements that must be met in order for the application to be processed successfully. If the court authorizes the application, the discovery target can be subpoenaed immediately, making it a very contentious issue. They dive deep into the logistics and Intel discretionary factors of Section 1782 and how these can impact the success of an application.
John notes how US discovery is not loved around the world – with foreign jurisdictions hostile to the US’s broad processes. In discussing the types of foreign proceedings that qualify under Section 1782, Lucas states that you can obtain US-style discovery as long as the foreign proceeding is pending or within reasonable contemplation – something you can’t typically do in the US. However, there are some limitations and boundaries in place, such as the fact that people can’t use §1782 to fish around and see if someone has a claim in the first place, or use it for private arbitrations.
The conversation moves on to discuss what the future of the law surrounding Section 1782 will look like in the future. Lucas believes its trajectory is on the assent, with more applications being made, which only gives the courts more issues to unpack and define. He argues that Section 1782 is now becoming a routine consideration across the entire legal industry, noting that the statute can be a bastion of truth in a world struggling with fake news and widespread disinformation. The use of legal tools, such as Section 1782, to discover facts can be a means to achieve fairer and more just decisions around the world.
Finally, John and Lucas discuss how foreign litigants must act fast and hire qualified US counsel to assist in the use of Section 1782. Lucas notes how relevance is important, although it is still a very broad term in general, and explains why the timing of the application is crucial.
$450 Million Settlement for Data Breach: Data Breach Litigation Comes of Age
In this episode of Law, disrupted, John is joined by Norman (Norm) E. Siegel, partner at Stueve Siegel Hanson LLP in Kansas City, Missouri. He is the lead plaintiffs’ counsel in the $450 million settlement of a data breach class action against T-Mobile. Norm has been involved in many high-profile data breach cases, and served as lead counsel in the three largest data breach settlements reached to date: cases against T-Mobile, Equifax, and Capital One. Together, these settlements totaled over $2 billion in cash and other relief. Norm was recently named by Law360 as a “Titan of the Plaintiff’s Bar” for his work in class action litigation.
The conversation begins by discussing how data breach litigation has evolved in the past 10 years. John asks about the type of claims that are typically asserted in these nationwide class actions. Norm explains that plaintiffs typically assert common law tort claims in these cases, especially negligence, breach of confidence and invasion of privacy. He adds that when the plaintiffs have an express contract with the defendant, such as when they have accounts with the defendant, they will often assert claims for breach of an express or implied contract that the defendant would keep the plaintiff’s information confidential.
John and Norm turn their focus to recent California legislation establishing statutory damages for data breaches in general, as well as for breaches involving medical information. Because both acts are relatively new, the case law interpreting them is still developing. John and Norm discuss the role that expert testimony, California Attorney General’s Guidelines, and FTC recommendations play in determining what data security measures the defendant should have implemented in these cases. They also discuss how to navigate the complexities of having both a nationwide class and a subclass of California plaintiffs who have recourse under these statutes in the same case.
The conversation then moves to legislation in other states, as well as the prospects for federal legislation establishing uniform national standards regarding data security similar to the standards in Europe under the GDPR. John and Norm discuss recent attempts at such legislation and the obstacles that have prevented it from passing this far.
They then discuss standing issues in data breach cases, and the key decisions, including Spokeo and TransUnion, that have recently clarified how standing may be established. They also discuss the issue of whether a defendant owes a duty to protect confidential information if it has no contract with a plaintiff and how that issue impacted the Equifax and Capital One cases.
John moves the conversation to the issues that discovery tends to focus on in data breach cases. Norm explains that defendants’ discovery has evolved from focusing on the measures they took to guard data to deposing plaintiffs about what damage they did or did not suffer because of a data breach. Norm adds that the plaintiffs’ discovery focuses primarily on their damages, but also on the defendant’s history of previous security breaches.
This leads to a discussion of damages theories and how they have evolved in the past five years. John and Norm discuss alternatives to just compensating for out-of-pocket losses, including damages for the lost benefit of the bargain in contract cases, unjust enrichment, the time and effort spent to repair the breach, and nominal damages. They also explore the benefits to the plaintiff class of requiring the defendant to take specific measures to prevent future security breaches and to help plaintiffs to protect themselves when breaches occur.
Finally, John and Norm discuss the settlement process, including how to allocate settlement amounts among the plaintiffs and the process to get a successful settlement for both sides. Norm believes that settlements result from always putting out high-qualit
Litigation Practice in Delaware Chancery Court
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.
Patent litigation in Germany - the second most important jurisdiction in the world
In this episode of Law, disrupted, John is joined by Dr. Marcus Grosch, managing partner of Quinn Emanuel’s German offices. Together, they discuss German patent law. Marcus is regularly awarded top ratings in leading international and German-ranking publications, and both Chambers Europe and Chambers Global have listed him as a “highly regarded patent litigator.”
The conversation begins with John noting how Germany is arguably the world’s second most important patent litigation jurisdiction after the U.S. They highlight how major technology disputes in the U.S. district courts are often seen in parallel proceedings in Germany. Marcus notes that Germany is integral to the patent litigation world due to the sheer number of cases it receives, as the German economy is far more resilient and bigger relative to its other European counterparts. He touches on how Germany’s significance in the field of patent litigation can be traced back as far as the 1950s.
Marcus explains how Germany’s time to trial is also far quicker than in other major European nations, with the fastest trials taking place in Munich and Mannheim, which only take twelve months. He highlights how at least 50% of the patents, whose validity is challenged, are either entirely revoked or significantly amended. Marcus argues that district courts have to be more conscious of the consequences of their decisions, therefore, they have to be more prudent and look more closely into the validity issues, which they are generally ready to do.
Then, John asks Marcus for advice for other lawyers involved in patent litigation in the U.S. and parallel proceedings in Germany. Marcus highlights how in the U.S., the work has to be done ahead of the filing, which is very different from Germany – most of the cases in America need a notice pleading in the first step, whereas Germany requires a case to be complete from the outset. He also points out how different cases are in Germany compared to the ones in the U.S. The most significant difference is that Germany, like all continental European jurisdictions, does not have a trial-based system, so the parties’ arguments are not exclusively presented to the trier of fact through evidence, like witness examinations. Rather, more like in an appellate hearing, the lead counsel, guided by questions and introductory remarks from the bench, has to address all relevant issues of law and fact in the main hearing. The taking of evidence is limited to specific instances, in which contested issues of fact are directly relevant for the court’s decision. However, many factual issues are not in dispute at the end of the process, which is the result of specific pleading standards and flexibly shifting the burden of proof. This is also important since all continental European jurisdictions have no general pre-trial discovery system. All issues of law and fact are addressed in the main hearing, with no separate motions to dismiss or claim construction decisions ahead of the main hearing.
This requires significant preparation and time in court, which Marcus highlights vary depending on the case, with the average patent case being four hours. He notes how sometimes the preparation can take significantly longer than the actual hearing. In addition, he explains how he deals with a ‘hot bench’ over 90% of the time, as judges are very ambitious, prepared and equipped with all of the information and specific details.
Finally, John and Marcus discuss European law and how there is no civil litigation at the European level, so patents need to be litigated in national courts. This will now be fundamentally changed with the Unified Patent Court (UPC), which will start in the second quarter of 2023. This UPC will entertain patent litigation (civil litigation) and a court system that is genuinely supranational and separate from the national systems
US/China Audit Access Agreement - What’s Next?
In this episode of Law, disrupted, John is joined by Sarah Heaton Concannon, Partner in Quinn Emanuel’s Washington D.C office and Co-Chair of Quinn Emanuel’s SEC Enforcement Defense practice, and Xiao Liu, Co-Managing Partner in Quinn Emanuel’s Shanghai office and Chair of Quinn Emanuel’s China Practice.
Currently, 200 Chinese companies are publicly listed in the U.S. Those firms face the prospect of being delisted under the Holding Foreign Companies Accountable Act due to a disagreement between American and Chinese authorities on the ability to conduct investigations and access audit work papers in China. John, Xiao and Sarah discuss the terms of the China-United States agreement whereby Chinese accounting firms can share certain information with American regulators about the finances of Chinese listed companies. Is it a done deal?
John opens the conversation by asking Sarah what exactly has been agreed to by U.S. and Chinese officials. She talks about how the agreement gives them the ability to conduct on-site inspections in Hong Kong and touches on how Chinese privacy and security statutes have made it impossible for the SEC and the PCAOB to conduct their routine examinations of auditors. Sarah notes how this new agreement enables the PCAOB to have its inspectors on the ground as early as mid-September, seemingly giving the auditors free reign over which audits to inspect and unfettered access to audit work papers.
John then asks Xiao why this deal and special rules are needed and queries whether it could be construed as an example of the U.S. picking on China. Xiao talks about how the history of the relationship between the two nations is an important factor to consider in understanding the relationship between the PCAOB, USA and China. He dives into how, on the one hand, there is Chinese law supposedly prohibiting these audit firms from scrutinizing these materials, and on the other hand, U.S. law, which states these audit firms do have the obligation to turn over papers. Xiao highlights how Chinese authorities have a strong interest in enforcing state secrets laws and personal privacy protection laws. However, at the same time, they care about public statements regarding agreements with U.S. authorities, especially those impacting the Chinese state-owned companies whose shares are listed in the U.S.
Together, John, Sarah and Xiao dive deeper into how Chinese issuers have typically tapped the Hong Kong-based affiliates of the Big Four companies, granting the PCAOB access to working papers and the right to take testimony from audit company staff in China. Sarah talks through her predictions on the future timeline of events, noting that she expects the PCAOB to draft a shortlist of companies that were already front of mind in the enforcement space and that they will quickly try to move through those audit records.
The conversation shifts to a more financial perspective of the issue with John asking Xiao whether these Chinese companies will continue to want the ability to be listed in the U.S. Xiao explains how China is now comfortable with allowing PCAOB access to Chinese companies’ audit papers as China has strengthened its own state secrets laws, personal privacy laws, and cybersecurity laws. China has taken the necessary steps to protect itself from issues that they have encountered in the past with the U.S. before reaching the agreement.
Finally, John asks what's next and what the future holds. Sarah believes that there will be some caution to see if the PCAOB is satisfied, but only time will tell how this agreement will play out.
Executive accused of sexual harassment recovers $52m in defamation case
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.
Camille Vasquez was great
I kept a close eye on the Depp trial. So I was really glad someone had interviewed his lawyer. Camille Vasquez came across so well and was really good and respectful. John is a great host too. Would love more interviews like this.
Genuinely interesting and educational
The great thing about John’s podcast is that he is obviously a very experienced and battle-hardened litigator, so you definitely feel ‘in on the action’ with the asides and recaps of amazing wins. Even from the perspective of a non-lawyer, and not being connected to the profession in any way, it gives a different side to what we read about in the papers and allows an educated discussion without feeling like I’m being talked down to.
Especially enjoyed the episode on the Oscars from early on, which provided so much insight into the awards and history that I had absolutely never heard discussed before. Similar with the episode on Chinese investment—no sensationalism or click-bait here. Just genuine interest.
Most recent episode on Camille Vasquez, Johnny Depp’s lawyer wins the ticket for me though. Such a fantastic listen, and warmer than most people would expect from a law podcast. Worth a listen.
Top legal podcast!
John is a great host and interviews guests who are at the top of their fields. Enjoy tuning in each week to learn more about the legal industry