The law firm of Jones Day in Washington, D.C. REUTERS/Andrew Kelly

9th Circuit to expedite Jones Day appeal in Orrick subpoena row. But why?

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  • Orrick, Herrington & Sutcliffe LLP
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  • Williams & Connolly LLP
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    (Reuters) – The 9th U.S. Circuit Courtroom of Appeals is each the busiest and the slowest federal circuit in this nation when it comes to deciding civil appeals.

    In accordance to the Administrative Workplace of the U.S. Courts, the 9th Circuit closed practically 1,800 civil instances between September 2019 and September 2020, greater than twice as many because the next-busiest circuit, the 2nd. With that heavy caseload, it is comprehensible that the common time from the discover of appeal to a last order from the 9th Circuit was 15.3 months, nicely behind the next-slowest 12.1-month resolution lag in the tenth Circuit.

    Jones Day, nonetheless, will apparently not have to wait that lengthy for the appeals court docket to determine whether or not it will probably drive Orrick, Herrington & Sutcliffe and two Orrick companions to adjust to its subpoenas in an arbitration that Jones Day has introduced towards an ex-partner who joined Orrick in 2019. On Monday, a 9th Circuit motions panel granted Jones Day’s movement to expedite the appeal. Briefing will conclude in early December and the case might be positioned on the calendar for subsequent February.

    Why the particular therapy for Jones Day’s appeal? I want I may let you know. Jones Day, which didn’t reply to my e mail question on the 9th Circuit case, filed its movement for an accelerated appeal below seal, together with a sealed movement to maintain filings confidential. Orrick’s opposition can also be sealed, as is Jones Day’s reply. All that briefing will stay secret in the intervening time: In Monday’s order, 9th Circuit Judges Margaret McKeown and William Fletcher stated the seal will keep in place till the three-judge panel that may hear the appeal points a ruling on Jones Day’s confidentiality movement.

    I do know, arbitration is meant to be confidential. But it’s too late for secrecy in this case. We already know the important thing details, thanks to Jones Day’s personal efforts to implement its subpoenas for paperwork and testimony from Orrick and Orrick companions Michael Torpey and Mitchell Zuklie.

    As I informed you in August, Jones Day initiated the JAMS continuing in Washington, D.C., in 2020 towards ex-partner Michael Buhler, whom it accused of breaching his partnership settlement and fiduciary obligation when he was in negotiations to depart Jones Day for Orrick. On the time, Buhler was representing a Jones Day shopper earlier than an arbitration panel that included an Orrick accomplice. When Buhler’s potential battle got here to mild, the Orrick accomplice stepped down from the panel, however Jones Day’s shopper informed the agency that Jones Day was liable for the additional price and delay. Jones Day, in flip, desires Buhler to pay.

    These details grew to become public in a decision final Could from D.C. Superior Courtroom Decide Alfred Irving. Jones Day had petitioned the D.C. court docket to implement compliance with the Orrick subpoenas issued by the JAMS arbitrator, retired federal decide Benson Legg. Irving dismissed Jones Day’s petition, ruling that he didn’t have private jurisdiction over Orrick, which relies in California, and that Federal Arbitration Act guidelines required Jones Day to carry its petition in federal court docket. (Further particulars about Jones Day’s battle with Buhler, together with Buhler’s counterclaim for practically $2 million in allegedly unpaid earnings, subsequently emerged in the World Arbitration Overview.)

    Jones Day in August turned to San Francisco federal court docket to implement a re-issued summons for discovery from Orrick. The agency stated the court docket had jurisdiction as a result of, amongst different issues, the JAMS arbitrator, Legg, deliberate to maintain a listening to in California to take the Orrick companions’ testimony. In a publicly filed motion to expedite, Jones Day requested U.S. District Decide Jon Tigar to velocity up the briefing schedule as a result of Legg had set a listening to date in early September. Orrick’s attorneys at Williams & Connolly stated in their opposition brief – which was additionally publicly filed – that Jones Day had created its personal purported emergency by delaying its enforcement petition and pushing for an arbitrary listening to date.

    Tigar ruled on Sept. 7 that he didn’t have the authority to compel compliance with the arbitration subpoenas. The FAA guidelines, he stated, require petitions to implement an arbitration summons to be filed in federal court docket in the district the place the arbitration is “seated,” which, in this case is Washington, D.C. The decide rejected Jones Day’s argument that the seat of the arbitration can transfer to completely different districts for hearings earlier than the arbitrator, although Tigar acknowledged precedent to the opposite from a trial court docket in Manhattan in 2019’s Washington National Insurance Co v. Obex Group LLC, which was affirmed by the 2nd Circuit in 2020.

    In the one public submitting in Jones Day’s appeal of Tigar’s ruling – the agency’s response to the 9th Circuit’s mediation questionnaire – Jones Day stated the primary difficulty on appeal would be the trial decide’s holding that enforcement petitions have to be filed in the district designated because the place of arbitration, relatively than the district in which witnesses have been summoned to seem.

    I get that Jones Day is in a rush to conclude the Buhler arbitration, which, in accordance to a submitting in the trial court docket, had been scheduled for a deserves listening to in September. (Presumably, that date has been pushed again.) Jones Day additionally talked about in a short to Tigar that the JAMS arbitrator had skilled medical points. Maybe that’s the reason it requested the 9th Circuit to expedite its case.

    My level is that we don’t know. We don’t know the way the agency satisfied the 9th Circuit to expedite its case. We don’t even know the way Jones Day justified confidentiality for its movement to expedite, since its movement to seal can also be … below seal. And that’s regardless of the D.C. decide’s public revelation of the details of the underlying arbitration and Jones Day’s personal public movement to expedite the trial court docket continuing.

    The Jones Day appeal will set essential precedent on the Federal Arbitration Act’s definition of the “seat” of arbitration. On the very least, the remainder of us ought to know the rationale for conserving a lid on the agency’s movement to rush the case.

    Learn extra:

    Orrick thumbs nostril at Jones Day in battle over subpoenas in accomplice arbitration

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    Alison Frankel

    Alison Frankel has lined high-stakes industrial litigation as a columnist for Reuters since 2011. A Dartmouth faculty graduate, she has labored as a journalist in New York protecting the authorized business and the legislation for greater than three many years. Earlier than becoming a member of Reuters, she was a author and editor at The American Lawyer. Frankel is the creator of Double Eagle: The Epic Story of the World’s Most Precious Coin. Attain her at [email protected]