David Boies made his name as a litigator helping break up the Microsoft monopoly and fighting for Al Gore in the Supreme Court. Until yesterday, his career helping the wealthy and powerful dispel unwanted scrutiny remained under the radar.
Fresh insights into Boies’ work appeared on Nov. 6 in a bombshell story (paywall) in the New Yorker about Harvey Weinstein, the recently disgraced Hollywood mogul. It details how Weinstein used private investigators and attorneys to prevent journalists from publishing allegations that he had sexually assaulted women, and to undermine the women.
According to the story, Boies and his firm, Boies Schiller Flexner, paid a former intelligence operative who worked under a false identity to wheedle information from journalists and sources alike—among them Rose McGowan, an actor whose allegations against Weinstein played a part in his downfall.
In a letter to his firm’s employees that was shared with Quartz, Boies said that he no longer represented Weinstein. Boies writes that he refused to assist Weinstein in fighting a New York Times story containing rape allegations against the producer. But did he “execute the contract on his behalf” to hire private investigators selected by Weinstein and other, unnamed attorneys.
“[H]is request to contract with investigators seemed at the time, like a reasonable accommodation for a longtime client,” Boies wrote. “I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control.”
This is not the first time that Boies has pushed the boundaries when fighting back against a story. ”That firm’s name has become synonymous with scorched earth intimidation, just brutal, heavy-handed legal maneuverings,” one reporter who has dealt with Boies told me.
In 2015, when the Wall Street Journal was investigating fraud at Theranos—a start-up that promised a revolutionary new blood test—the company hired Boies to push back. At one point, the Journal reported, two attorneys from his firm pressured a Theranos employee (paywall)—a grandson of former US secretary of State George Schultz—to admit that he had spoken to reporters and reveal other employees who had done the same. When he would not, they pressured him to sign a confidentiality agreement.
Boies and a team of lawyers also came to the Journal’s offices to meet with the reporter and editor working on the Theranos stories, Vanity Fair reported. They accused the Journal of possessing trade secrets and threatened a lawsuit. The meeting did not deter the Journal’s reporting, which would win its author, John Carreyrou, a George Polk award, and provoke a wave of lawsuits and investigations into the now disgraced company.
In 2014, Boies’ firm represented Sony after the entertainment giant was the victim of a massive hack. Embarrassing e-mails and proprietary documents were available online and journalists began using them to write stories about Hollywood insiders. Boies sent letters to major media outlets threatening lawsuits if they published. The threats were seen as over-reach, even bluffs, but legal reporter Alison Frankel wrote that the real message, according to media lawyers, was “simply to put news organizations on notice that Sony is watching them.”
“In general, I don’t think it’s appropriate to try to pressure reporters,” Boies told the New Yorker of his work for Weinstein. “If that did happen here, it would not have been appropriate.”
In May 2017, Boies’ law firm sued the Associated Press for defamation on behalf of Oleg Deripaska, a Russian oligarch connected to Russian leader Vladimir Putin. The story in question described Deripaska’s employment of Trump campaign manager Paul Manafort and reported that Manafort did not disclose it, in violation of US law. Manafort was indicted on those charges on Oct. 30, but a DC judge had dismissed Deripaska’s argument weeks before as deeply deficient.
“Deripaska makes an accusation that does not come close to plausibly alleging that the AP acted with actual malice or reckless disregard for the facts when it published the article in question,” Judge Ellen Huvelle wrote in her Oct. 17 decision. “Deripaska has cherry-picked sentences and strung them together to give the AP’s article an effect it does not have when read in full.”
A web of conflicts
Boies’s heavy-handed tactics can be accompanied by apparent conflicts of interest.
After the Wall Street Journal published its first story questioning Theranos’ technology, Boies joined Theranos’ board of directors, a move that drew immediate public attention (paywall) because he would be legally bound to represent both the company’s management and its shareholders. Eventually, he would stop representing the company and leave the board over disputes on legal strategy.
Even as he was helping to kill a New York Times story about Weinstein, Boies was also representing the newspaper in an unrelated matter. The newspaper issued a statement calling the situation “intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.” Boies, in the letter to his employees, says that he was not representing Weinstein when he hired the private investigators. Regardless, he says his agreement with the Times allowed him to “represent clients adverse to the Times on matters unrelated to the work we were doing for the Times.”
Boies also had apparent conflicts of interests vis-à-vis Weinstein himself.
Before the wave of testimony about Weinstein’s behavior, and the subsequent outing of many other powerful men as sexual abusers, Boies was representing him in contract negotiations with the shareholders of The Weinstein Company (TWC). His firm also continued to represent the company itself in legal matters. In 2009, for example, Boies’ firm worked on a legal dispute over the rights to air “Project Runway,” which recently removed any mention of Weinstein’s name and company from its credits.
Independent directors of the company cried foul and told the Financial Times later (paywall) that Boies had blocked their attempts to learn more about past allegations of sexual assault by Weinstein. “If the question is: how was Harvey’s conduct enabled?” one of the directors told the paper. “It was largely enabled by his attorneys and their obfuscatory tactics.” In a response to the FT story (paywall), Boies said that “the board was fully aware and accepted my representation of Harvey Weinstein on certain matters and the company in certain other matters,” and suggested that the directors were attempting to distract from their own tolerance of Weinstein’s behavior.
In yet another conflict, the attorney who eventually reviewed Weinstein’s personnel file on the directors’ behalf was Rodgin Cohen, another powerful lawyer. He told the board it contained no claims that would represent a liability to The Weinstein Company. According to the FT, Cohen’s son was employed by the Weinstein company at the time. (Cohen said the board knew this.)
Separately, Boies invested in a film production company that co-produced at least two movies with TWC, and another that was distributed in Japan by Sony Pictures, another Boies client. The producer who manages the Boies/Schiller Film Group is the son of Boies’ law partner. In a 2015 American Lawyer profile, he said the production company’s name (pdf) is similar to that of the law firm “so that people understand that while I’m a small operation, if people don’t abide by the fee documentation and the spirit of the deals, there’s a caged gorilla in the back of the office.”
“David Boies is the personification of integrity, and that gives them a tremendous advantage in our business,” Weinstein said in the same story.
The other side of Boies
Not every interaction between Boies and the press is characterized by over-the-top threats. Another reporter who worked on a controversial story involving a Boies client told me that their interaction had been a typical of the relationship between journalists and attorneys dealing with sensitive points of fact: Rigorous but not pushing ethical boundaries.
Nor is Boies the only attorney who has attracted attention as he tries to diminish it. Charles Harder, a member of Weinstein’s legal team whose victory over Gawker caused the media site to shut down and chilled the entire industry, is known for pulling no punches. He has since left Weinstein’s team. Another former Weinstein attorney, Lisa Bloom, known for representing victims of sexual harassment suits, also quit representing the movie mogul. She saw her reputation tank while defending Weinstein after he had bought the film rights to a book she had written.
For now, Boies remains best known for feel-good work like his bipartisan defense of gay marriage in 2008 or suing to end the electoral college with law professor Larry Lessig. His work sinking stories about the powerful attracted far less attention until it backfired so publicly.
“I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article,” Boies wrote in the letter to his employees. “That is not who I am.”
This story has been updated to include Boies letter to his employees and his firm’s role in the Deripaska lawsuit.