Earlier
today
the
Federal
Trade
Commission
announced
they
issued
“warning
letters”
to
42
Biglaw
firms
noting
“potential
for
liability
under
laws
that
the
FTC
directly
enforces.”
That’s
because
the
Trump
administration
has
decided
to
target
firms
that
participate
in
the
Diversity
Lab’s
Mansfield
Certification
process
under
antitrust
laws.
“Potentially
anticompetitive
collusion
between
law
firms
on
DEI
metrics
can
include
quotas
by
which
they
agree
to
compose
panels
of
job
candidates
based
on
race,
sex,
or
other
personal
characteristics
other
than
the
candidate’s
merit,”
Andrew
Ferguson,
FTC
Chair,
wrote.
“Such
agreements
can
distort
competition
for
labor
in
legal
professions,
including
along
dimensions
like
hiring
decisions,
pay,
and
promotions.”
What
a
load
of
malarky.
The
Mansfield
Certification
program
was
first
launched
in
2018.
Modeled
on
the
NFL’s
Rooney
Rule,
the
program
asks
firms
to
affirmatively
consider
diverse
slates
of
candidates
for
leadership,
governance,
equity
partner
promotions,
and
lateral
hiring.
Then
track
and
publish
how
they
are
stacking
up.
The
impact
has
been
tremendous.
Eighty-five
percent
of
participating
large
law
firms
increased
discussions
around
lateral
partner
hiring
inclusivity;
91%
track
internal
talent
pools
for
discretionary
high-visibility
opportunities;
75%
track
internal
talent
pools
for
promotions.
The
data
is
impressive.
But
if
there’s
one
lesson
from
the
Trump
II
regime,
it’s
that
we
can’t
have
nice
things.
So
of
course,
they’re
using
the
freaking
Sherman
Act
to
attack
a
program
that
merely
asks,
hey,
maybe
you
should
*consider*
hiring/promoting
someone
besides
a
straight
cis
white
male.
The
list
of
targeted
firms
is
as
follows:
Alston
&
Bird,
Arnold
&
Porter,
BakerHostetler,
Cooley,
Covington
&
Burling,
Davis
Polk,
Debevoise
&
Plimpton,
Dentons,
DLA
Piper,
Faegre
Drinker,
Fox
Rothschild,
Gibson
Dunn,
Goodwin
Procter,
Gordon
Rees,
Greenberg
Traurig,
Hogan
Lovells,
Holland
&
Knight,
Husch
Blackwell,
Jackson
Lewis,
K&L
Gates,
Latham
&
Watkins,
Lewis
Brisbois,
Littler,
Mayer
Brown,
McDermott
Will
&
Emery,
McGuireWoods,
Morgan
Lewis,
Nelson
Mullins,
Ogletree
Deakins,
Paul
Weiss,
Perkins
Coie,
Polsinelli,
Reed
Smith,
Sheppard
Mullin,
Sidley
Austin,
Skadden,
Troutman
Pepper,
White
&
Case,
WilmerHale,
Wilson
Elser,
Wilson
Sonsini,
and
Winston
&
Strawn.
Hmmm….
Some
360
firms
are
Mansfield
certified,
and
it
is
interesting
those
that
are
targeted.
You
probably
expected
the
firms
that
have
already
taken
a
stand
against
the
administration
fighting
the
unconstitutional
executive
orders
targeting
Biglaw
to
be
on
this
list,
as
Perkins
Coie
and
WilmerHale
are.
But
it
*is*
interesting
that
several
firms
(Paul
Weiss,
Skadden
and
Latham)
that
have
already
capitulated
to
Trump
—
and
resolved
inquiries
into
their
DEI
practices
(well,
those
initiated
by
the
EEOC,
not
the
FTC)
along
with
it
—
are
also
on
the
list.
Guess
those
deals
with
Darth
Trump
really
do
get
worse
all
the
time.
Read
Ferguson’s
full
letter
below.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
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on
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@Kathryn1 or
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@[email protected].