Insurer Spending On Lawyers Rather Than, You Know, Healthcare

Episode Notes

Transcript

Joe Patrice:

Hello, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law.

Kathryn Rubino:

It’s the 401st edition of Thinking Like A Lawyer to be specific, but yes, I’m Kathryn Rubino, also of Above the Law.

Chris Williams:

Chris Williams. Still work here.

Joe Patrice:

So yeah, we are Above the Law editors and we do this show every week to give you a quick rundown of some of the big stories that we’ve been following for the last week in the world of Legal of the Week. That was, as we say, to give you the quick and dirty catch up. Let’s begin our small talk segment so that we can prove that we are real people and not one of those podcast AI things that they do you ever listen to one of those?

Chris Williams:

I know what I want to talk about the Super Bowl.

Kathryn Rubino:

Thank you Sports ball. Boy.

Chris Williams:

Yo, it was great. There was all sorts of dribbling and puck moving shouts out to Jalen Hertz. Speaking of who’s hurting? Oh, I can already hear Taylor Swift writing the breakup song. It was so good. Love it. There was a picture of a dude giving Trump the finger and he was a Chiefs fan, so they’re not all bad. It was so good. So the last time my team won the Super Bowl, which is the only time I really care about sports ball is when the Eagles win.

Kathryn Rubino:

I respect that. Listen, I’m not an Eagles fan, but I can respect that.

Chris Williams:

It’s okay to be wrong. It’s okay to be wrong, but yeah, so 2018, the Eagles won. I was in Camden, which is across the bridge, but funny enough is not in the city, so I got to see what was happening and functionally real time, I was watching what was happening on Twitter, but I wasn’t there to see with my actual eyes. So this year I said, I’m going to be there with my actual eyes, all four of them to see what’s going down if and when we win, or God forbid if we lose because I don’t know if you’ve seen what Philly fans do when they’re happy. Well, Philly, yeah, so I go there and it was great. I was at a pen and pencil shout outs to the longest, continually running journalist bar.

Joe Patrice:

Nice

Chris Williams:

Bar none. I have my drinks, I leave, somebody compliments my sweater, not even an eagle sweater, just a swaggy sweater. I get had a white claw and it’s totally not legal to drink in the streets of Philly, so I definitely didn’t do that. Somebody was walking around with a potted plant above their head. There were people climbing fixtures, some people saying dual flip, other people caring for them. But it was nice. It was beautiful to see. It was beautiful to see, and after I had enough of that, I felt like a red blood cell and a clotted artery. It was just so many people, so that I politely pushed my way back to theBar and drank until it died down a little bit. But it was good. It was so good. Oh, and the Kendrick. Oh, the Kendrick,

Joe Patrice:

Yes. That was so much. Well, when you said who’s hurting, I assumed you meant Drake, but

Chris Williams:

Well, he likes him young. Did you hear?

Joe Patrice:

Yeah, we did here.

Chris Williams:

Just remember to anybody that might be going through a rough breakup right now, just know your main opponent did not call you a pedophile in front of a hundred million people. What felt like a hundred million people also sang that part and your ex crypt walked to the, it was so good to see Serena Williams.

Kathryn Rubino:

I mean, I thought Samuel L. Jackson really, that was I think took it to a very artistic level that I really appreciated.

Chris Williams:

Oh yeah, he was there as Uncle Tom Sam trying to condition Kendrick to respectability politics and the whole time he’s like, I don’t know, they like to sue teasing the active backlash against it, like the flag falling down with the one black dude being up. And it was a point where I was like, maybe this is going over people’s heads, but then I was like, there was something, I went on Twitter and it was this popular talking head like, oh, this is a DI performance. I was like, yes, this is it. This is it. This is pissing off the right people. It’s so good. The volume might’ve been low, but they were very loud with their disapproval and I think that means that it hit the mark. So power to attention.

Kathryn Rubino:

I also thought it was interesting because this I think really marks a moment where the halftime show is not geared towards boomers. Even in other performances which may have had chronologically younger artists, they were still the sorts of artists that might also appeal to boomers, and I think the performances were done in such a way to appeal towards a wide demographic, but this was very specific. It was like, I don’t need you.

Joe Patrice:

For several years, the Super Bowl halftime show was digging up artists where I was like, I did not know they were still alive. So this was very different

Kathryn Rubino:

Who ended that era? I think even before the Kendrick performance, which is what kind of opened up the door, I think, for the Kendrick invitation in the first place. But this was my Facebook feed is filled with old white people being like, this was the worst ever. And I was like, I bet you think so

Chris Williams:

That

Kathryn Rubino:

You

Chris Williams:

Do. There’s an old Tony Morrison clip. I think it’s something along the lines of the question of why aren’t black writers considered to be American writers or what have you? And she talks about centering the periphery. And to your point, I do feel like this was one of the rare performances where it wasn’t catered towards boomers, but also that it felt very black. It was deliberately irreverent, and I think that was a beautiful thing. Also shouts out to whoever flew the free Gaza free Sudan flag before security had them tackled down. Nothing says Americana, like black folks doing the flag and the one black folk with the flag that isn’t America or Israel being tackled. So it’s speaking to the political climate. It was really good.

Kathryn Rubino:

I mean, if we still have higher education in five or 10 years, I think that dissertations will be written about this performance. I think it had a ton of material and I think it’ll be really interesting when academia kind of digs into it.

Chris Williams:

One thing that made me mad, seeing that performance, walking down the streets of Philly with all the crowd got me really mad at Democrats because I’ll try to link it. I don’t think it’s abstract. When it was Maxine Waters and all these people, they were like, they’re not letting us into the Department of Education. It was some bald dude in a brown polo I think I was in a crowd of, in a crowd. They were like 50, 60 deep. They could have pushed him out the way you can just do things. The guy that flew the free Sudan, free Gaza, he just did that. They’re like, oh my God, they’re blocking members of Congress, have a security detail and if not, y’all can’t push this man. So just being in that crowd and seeing what a crowd can do to one person, it just made me get really pissed off at them being like, they’re not letting us in.

Joe Patrice:

Right. Well, because it would be trespassing and the argument,

Kathryn Rubino:

I didn’t think there was a crime anymore.

Joe Patrice:

Well, I mean that’s the issue. That’s the issue. The intellectual argument that we’re in structure we’re trying to build is that January 6th was a bad thing, and so we don’t want to cross that line. I don’t know,

Chris Williams:

President of South Korea instituted a military coup. The people

Joe Patrice:

Ran

Chris Williams:

Down Congress, I think they’re criminal ran down.

Joe Patrice:

I’m just not sure what Maxine Water’s being able to get inside the treasury building accomplishes that protesting outside of it doesn’t. Frankly, I don’t know what it does that being able to say I wasn’t allowed in doesn’t. I actually think that’s probably a more powerful statement than if she got in the office. It’s like, what’s she going to do? Control, alt, delete on the computers? I don’t think she can do anything in there.

Chris Williams:

Pushback is meaningful. When those white supremacists, fascists, I don’t know, Elon, people in Ohio got actual pushback and had to retreat into a U-Haul that meant something if they were like, oh my God, the police are just allowing this, so what do something, action. Action is important. And if they’re action with them saying, oh my God, our hands are behind our back.

Joe Patrice:

I just think the visuals of being able to say that you couldn’t get in seem more striking than whether or not you actually did. If anything, if I were the administration, I’d let them into the building and just be like, and what did you do while you were here other than be annoying?

Chris Williams:

It was a dude with a bandaid on his neck and his arms crossed. That’s all it took to stop you. That’s the image.

Joe Patrice:

Yeah, sure. But it is more powerful to be able to tell this narrative that dark sinister forces are preventing you from getting into the building than the alternative

Chris Williams:

When your opposition is calling you a bunch of cooks.

Joe Patrice:

Is that really the position? Well, I mean, the cuing was for a week and a half, nobody even bothered to try and get in. Now that people are actually trying to get in and being told no, that’s actually creating this For a long time. The democratic response was, well, we could go down there, but I’m sure they won’t let us in, so we won’t do anything.

Kathryn Rubino:

We won’t even try. So

Joe Patrice:

We’ve now crossed over that threshold at least. Anyway. Well, we should actually move to talking about this week’s stories, which I guess have some overlap to these issues. Anyway, well let’s transition from that. Talk about UnitedHealthcare a company that has had some news over the last while, but this is a different,

Kathryn Rubino:

Well, it’s a different spin. Obviously. The biggest news story of the last several months involving UnitedHealthcare is the murder of their CEO Brian Thompson. And as a result of that, we all know there’s been a lot of feelings about UHC specifically and the healthcare industry generally, and apparently the UnitedHealthcare has decided to lawyer up. They hired defamation boutique law firm, Claire Locke, and going after people on social media particularly, they sent sort of a cease and desist letter to an attorney, not an attorney, I’m sorry, to a doctor Dr. Jessica under Dr. Jessica Potter saying that she did a social media posting that she was called out of a surgery in order to take a phone call from United because they said that the patient did not have clearance to stay in the hospital post surgery. And according to UnitedHealthcare, the claims that she was called out of surgery are false.

There’s no insurance related circumstance that will require this, but it’s really interesting that they’re going after this because they’re requiring or asking for an apology, a correction to her post and to condemn the sort of pile on that UHC has gotten as a result of this, and I’m sure other posts as well, and the doctor is wildly uninterested in doing anything about it, saying that she’s not going to be silenced, that these are just attempts to threaten and harass her. So very much leaning into the no, this is what happened kind of a thing. This is I think, and follow up in a lot of ways. One of your stories, Joe, about what UHC has done legally in the aftermath of the murder of Brian Thompson. You wrote about them going or somebody at least in the UHC name going after.

Joe Patrice:

Yeah, I mean, look, it is all reputation control at this point. There was a story a while ago that we talked about where somebody claiming to be UHC at least whether or not it was or not, was going around the social medias filing DMCA requests and stuff like that to have takedowns of people talking about bad things that UHC is doing or making parodies of UHC,

Kathryn Rubino:

And it was also artwork, right? That involved

Joe Patrice:

Artwork using the same parody artwork of C’S logo and stuff. This is a gross abuse of the copyright system, but it is nonetheless something they were doing in order to protect their, to try and rehabilitate their reputation after everything that happened. So the facts of this case are super interesting in that I like it as a lesson in how in legal things can be technically true but wildly disingenuous. I am positive that UHC did not say, you need to leave surgery to take this call. I am also positive that it was clear to the doctor that there was an exploding timeline on this and that

Kathryn Rubino:

If they didn’t

Joe Patrice:

Did this with the purpose of saying, well, this doctor’s not going to get out of surgery, so therefore we can do this without any pushback. The idea that you could try to build a defamation response claiming that the truth is, well, this didn’t really happen based on something that is so wildly disingenuous is the sort of abuse of the system and the laws that you see when you start digging into fact patterns of cases like these. And it’s common. It’s a real problem because I don’t think our system is quite built to deal with defamation in a rational way, and I think we’re going to see a lot more of it, especially in the political climate. Also with this going on with the way in which the DMCA basically gives carte blanche to organizations to nuke stories without much pushback. It’s a real problem.

Kathryn Rubino:

Yeah, I think you’re right that this is a way that people are using the legal system and we’ll see. I don’t think that any amount of legal maneuvers really changes the zeitgeist, though. This is bigger than a takedown. This is bigger, whether it’s DMCA, whether it’s for other reasons. I think that this kind of continues and this only feeds it in a negative way on for UHC.

Joe Patrice:

Yeah, I mean, we had, I guess the new push here is so Steve Wynn of the win casinos and whatever massive Trump supporter he has now reached out to, he’s pushing a petition at the Supreme Court to get rid of New York Times v Sullivan, which just brings us back to

Kathryn Rubino:

His defamation case that he had filed was dismissed because he did not plead actual

Joe Patrice:

Malice. And this is yet another, I mean, we’re talking about the brokenness of defamation law. This is going to be the next domino to fall most likely given that, especially with, we’ve already had the Alito Thomas wing of the court make rumblings that they might want to get rid of

Kathryn Rubino:

This. Well, specifically Thomas and Gorsuch have actually been on record specifically saying that the court should revisit the Sullivan precedent.

Joe Patrice:

There’s some real weaponization of defamation happening here, and we have not been good about it for a long time, and it’s very likely to get worse. Alright, so moving from the private corporation world and in-house counsel and yada, yada yada. Let’s move to big law. We had a story that was kind of sadly inevitable, I think, but we’ve all been really waiting to see with the administration moving towards making a lot of noise about trying to use the power of the Department of Justice to crush private companies employment decisions in particular, say getting rid of DEI, which they don’t understand what that means,

Chris Williams:

Black people.

Joe Patrice:

Well, that’s where I was going to go with it was I read something the other day, some social media outcry from conservatives who were talking about we’re being confronted with the fact that DEI includes veterans, pregnant women, stuff like that. They’re like, well, that’s not DEI that’s covered by other laws. And I’m like, well, there are laws for all of this, right? DEI is a corporate buzzword, speak for putting them all together under one umbrella. But I think as you kind of pointed out, Chris, the most folks have determined that DEI is just their socially acceptable way to use slurs. But given that the administration has authorized and ordered the DOJ to start looking into building new legal theories by which they can prosecute private companies for their hiring decisions, which let’s be clear, it’s going to become a weird justify. Your hires, even if there’s zero affirmative action involved or whatever the DOJ is going to start saying, it seems going to start saying, you have a black employee, we are going to assume that that’s illegal, which is very

Kathryn Rubino:

Most certainly what they did about their own firings. They fired the head of the Coast Guard because that person was a woman.

Joe Patrice:

So this is real bad now. So with all that out there and the risk of it now moving beyond the federal government’s own inside to the outside, we’ve been waiting to see if there would be law who would start changing their policies in order to curry favor or at least avoid retaliation from the federal government. The first of these, so far I’ve been kind of casually looking at firm sites to see what happens, trying to figure out if anything changed for the first couple weeks, nothing really had, and I was kind of impressed by that. But then we finally hit on one KL. Gates used to have language at the top of their website about their commitment to diversity that has been scrubbed. They had a diversity and inclusion part of their website that has been changed to opportunity in inclusion, and a lot of the language of it has been retweaked explicit references to L-G-B-T-Q, for instance, have been scrubbed from it. The committee has been renamed. A lot of the language just got made much more generic than anything specific word trans was removed in one place. So we are seeing a firm withdraw in an effort to get out of this. Now, to be clear, a lot of the resources are still on their website, but they are being pushed into a corner of the website so that they’re harder to see rebranded, et cetera.

Kathryn Rubino:

I’m sure, and I think part of the reason why you found this is because we anticipate even more companies, firms, et cetera, making similar moves because of the political climate that we’re currently in. But it’s incredibly disappointing to see, listen, law firms are uniquely positioned. They actually have the resources and the legal acumen to fight these sorts of things, and I think it’s telling the firms that have decided that they are not spending their resources in this to make the defense of what they’ve done for years.

Joe Patrice:

Yeah. One of the points, I really made two kind of overarching points about all of this, but I’ll go to the second one first, which is one of the problems with this is I think I’m giving the benefit of the doubt. I do think that the firm probably still holds these commitments and that’s why some of these resources are still there, but they’re trying to hide it for these political reasons, and I understand the existential argument that they must be feeling, but ultimately you can’t say, oh, we still are really committed. We just have hidden it. Because when you’re talking about inclusion, the hiding, it is kind of the point. If you are publicly not standing by your people, you’ve kind of given up the ball game there. That’s the element that I think a lot of firms are going to start to have to deal with is realizing that these initiatives weren’t just, Hey, we do this, but the fact that we are public about doing this is the point.

Kathryn Rubino:

And I think that public nature of it is also really interesting because what are they communicating not just internally amongst the leadership team, but to their rank and file employees to people that they’re potentially trying to recruit to come into the firm? These things are not unrelated questions, and I think that it really speaks to one another and kind of spirals from there.

Joe Patrice:

Yeah. I’ll also say that the second overarching point I had, and this is one that we kind of address, is Sullivan and Cromwell. Now, after fairly, not officially, but rumors are 99% confirmed, had rejected trying to be tied to representing Trump in the past is now all over it. The thing that has shifted is that the first Trump administration, despite the fact that he had been elected corporations, seemed very wary of trying to tie themselves to him. Brands wanted no part of it. They didn’t want their law firms to have it, so have a part of it so that they didn’t want to be out there saying that they’re somehow aligned. That seems to have disappeared this time, and I think it is a function of not so much that the mood changed or views of him have changed as the approach to the Department of Justice in particular, but other regulators has changed.

It is now increasingly clear, at least based on what’s being said and the pace of executive orders following that up. In the past, Trump has said things but then never done anything. This time around, there’s a lot of action. It does seem as though a lot of these corporations, whether they want to or not, have decided that if they do not try to curry favor, they are in trouble. And to that end law firms that do their best to tie themselves to the administration have a business leg up to say, oh, we have the ear of these folks, the remarkably pristine ear that didn’t actually get hit by a bullet, but despite what they say, that’s the mood now, and that’s a change and a problematic one from an obeying an advance perspective. But here we are,

Chris Williams:

Quick shout out to firms that are doing the opposite of scrubbing, DEI from their sites and appear to be doubling down. I think that one firm that’s been doing a great job of this least this is what I see on LinkedIn is Davis Wright tma. I feel like part of the lore might be like, oh, another firm is taking this down. Another firm is taking this down. But it’s also important to talk about like, wait, this firm is risking being sued, committed to this shit, and I think it’s good to see and just wanted to show some love to them

Joe Patrice:

For that. That’s an excellent point. The Costco Award

Chris Williams:

Call it.

Joe Patrice:

Yeah. The firms that are, because it’s one thing to not make a change, and it’s another to make public, this goes back to the point we were just making about in an inclusion game, saying it is as important too. Yeah. Alright. The A BA just had their mid-year meeting. They did a lot of business there. There were a lot of interesting resolutions to come out of it as there almost always are, but let’s talk about one in particular of interest is that the A BA has voted that the Supreme Court needs to have an ethics rule.

Kathryn Rubino:

Welcome to the party, A, B,

Joe Patrice:

A. Yes. This is one of those things that is somewhat obvious, but also I think it should matter more to people. If the largest organization in the country of lawyers has never felt up until now they needed to do this. It’s a testament to how up until now, nobody thought that this would get this bad. But now we have now in the wake of the revelations, which we’ve been reporting on for a couple of years now, Clarence Thomas getting a free house for his mom and tuition and vacations and an RV and not disclosing any of it, and Jenny taking money off the books from the Fed SOC folks. Well, that wasn’t technically fed. There was a Leonard Leo thing through his consulting,

Kathryn Rubino:

But to people related to Fed Soc. Yes, thats

Joe Patrice:

Accurate. Right. To be fair, then Alito taking luxury vacations without disclosing those. Now that we’re in this position, and the response of John Roberts to it is to say, everyone needs to mind their own business.

Kathryn Rubino:

I mean, has an individual ever embodied the shrug emoji more clearly than John Roberts on this issue?

Chris Williams:

Maybe Clarence? Yeah,

Kathryn Rubino:

No, he’s like a twirling mustache, kind of a, yep, I’m doing this kind of thing. John Roberts obviously sees what’s happening, isn’t a fan. Otherwise, he would also be taking these trips and luxuries, whatever. If he was on board, he would be doing it, but he sees it happening and he’s just like, Ooh.

Chris Williams:

Yeah, okay, I hear you. I hear you. But question in response, what would Scalia’s emoji would’ve been because he was doing this? I he’s

Kathryn Rubino:

When he started

Chris Williams:

It, no,

Joe Patrice:

He has an emoji. It’s to comicy the famous image of him doing that to the

Kathryn Rubino:

The Italian. The

Joe Patrice:

Italian, yeah. Yeah. That’s the emoji for him.

Chris Williams:

For the listeners at home, it was like a hand flick under the chin.

Kathryn Rubino:

It’s like, go freak yourself.

Chris Williams:

Is this a no fuck podcast? There’s no cursing it. No.

Kathryn Rubino:

I feel like there’s something very Italian American and about being like frigate. Okay. That is very much what that is.

Chris Williams:

I respect the diversity and inclusion there, making it culturally appropriate. Be careful the show get canceled.

Kathryn Rubino:

No, there’s just something I don’t know visceral about. I can hear cousins in the back of my head saying it that way.

Joe Patrice:

Yeah, no, I mean that’s exactly what that was. So that’s what he embodied. Not sure I agree necessarily with twirling mustache for Thomas. It is something though, but it’s

Kathryn Rubino:

Something more evil, right? There’s something more deliberate, at the very least about what Alito or what Thomas are doing. Whereas Roberts sees it and is just like, oh, well,

Chris Williams:

I think y’all are wrong on Clarence’s emote. I think his is just sipping from a fresh cold can of Coca-Cola. Oh, good. I’ll be here all week people. Yeah.

Joe Patrice:

With that said, yeah, so the A BA has done this, I assume, given that the largest organization, professional organization of lawyers in the country has said this, that the Supreme Court will laugh and throw it away, their response to this sort of

Kathryn Rubino:

Thing. No, I think you’re wrong. Very wrong there, Joe.

Joe Patrice:

Oh, okay.

Kathryn Rubino:

You are definitely wrong. What is going to happen is there’ll be a footnote to it in the next letter from the Chief Justice saying that this kind of questioning of the ethics of inappropriate the Supreme Court inappropriate is wildly inappropriate and out of line.

Joe Patrice:

Yeah, that is interesting. Towards the end of the year, we should have a betting pool prop pool on Will Robert’s annual report be ignoring glaring ethics issues and writing a missive on typewriters, which he’s done before, or will it actually address it only to say, screw all of you. I have contempt for every attempted ethical. I

Kathryn Rubino:

Do what I want.

Joe Patrice:

I

Chris Williams:

Think it’s going to be, let’s ask what Trump thinks. Our king should determine what we can do.

Kathryn Rubino:

Well, listen, it’s only the second week of February. We have a long ways to go before the next letter from the Chief justice, and so many terrible things can happen. Could easily

Joe Patrice:

Happen. All right, well, I think that brings us to the end for this week. Thanks everybody for listening. Subscribe to the show so you can get them whenever they come out. You should give reviews. That’s always useful. Everybody always hears that and goes, yeah, but it really takes only a second or two and is valuable. If you haven’t done it already, do that. You should be reading Above the Law. Read these and other stories before we talk about ’em. You should check out the Jabo Catherine’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable. We’re on various social medias, although I guess mostly bluesky, which is at Above the Law dot com. At Joe Patrice at Catherine one at writes for rent. Twitter presence is basically the same, except for me being, except for the publication is a TL blog there. And I’m Joseph Patrice over there because I forgot how to log into Joe Patrice. Well, I was on Twitter when there were like 500 people on Twitter, so yeah. Well, all right. And the point is I then nothing was going on, so I gave up on it. I forgot how to log in.

Chris Williams:

Are you sure your password isn’t just like Master Debater with an eight?

Joe Patrice:

It definitely was not that, but yeah, no, I couldn’t figure it out. And then when I, to recover it one time, a long time ago, it’s like, oh, so your recovery email associate with this account is, and it had it. I was like, huh, I don’t even remember that account for sure. It was like my NYU student account.

Chris Williams:

Oh yeah, it’s done. Yeah. Yeah. That’s dead.

Joe Patrice:

Yeah. Anyway. Alright, well, with all, so we’re done. We will talk to you all. Next. Go Eagles.

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