By John Ryan | November 5, 2019 | Lawyer Limelights, News & Features, Wachtell Lipton Features
Many of the best lawyers we’ve written about knew they wanted to be lawyers at an early age, perhaps following in a parent’s footpath. For others, their entry in the legal profession is rooted more in chance. That was the case for Elaine Golin, who after abandoning an academic career – the path favored by her parents – found a job as a research librarian at Cravath. That Golin became hooked on the law will come as no surprise to anybody who has followed her career at Wachtell Lipton. Among her many achievements, Golin played a lead role in orchestrating Bank of America’s creative and successful settlements of the massive claims arising from Countrywide-issued mortgage-backed securities. These days, the Columbia Law School graduate is putting her experience to work for Cardinal Health in claims related to the opioid epidemic.
Lawdragon: Can you tell our readers about what types of matters are taking up your time these days?
Elaine Golin: One thing that is consuming a lot of my time is the wave of litigation surrounding the opioid epidemic. I, together with my partners Jeff Wintner and Bill Savitt and a great team here at Wachtell Lipton, serve as strategic and governance counsel to Cardinal Health, a pharmaceutical distributor. We are guiding them through a challenging litigation and regulatory environment.
In addition to advising on overall strategy, including making sure we are putting our best litigation foot forward, part of my job in these situations is to explore and evaluate whether there are resolution opportunities that make sense for my clients, so that they can begin to put a tough moment in time behind them. I also try to help assess risk and advise on governance and risk going forward.
In this way, my work on the opioid epidemic, which is obviously very different than the financial crisis, has some similarities from a counseling perspective to my work on mortgages. For better or worse, when there is a national problem, a number of parties, including governmental entities, look for institutions to blame. The judicial system may not be the best place to address these issues, but that’s where many of them end up. In those situations, it’s important for companies to take a holistic view of addressing the problem at hand, and that’s a very important part of what I and my colleagues at Wachtell Lipton do.
LD: What is the status of the RMBS litigation?
EG: Though the financial crisis seems very long ago, RMBS litigation is not over. Most of the major cases and issues have been resolved, but some matters continue to wind their way through the court system. And opportunistic lawyers and investors are still trying to come up with creative legal strategies to try to squeeze the last dime out of those securitizations. When the plaintiffs get creative, I have to get creative! So I still spend time on that, and on counseling my bank clients on other issues that are the legacy of the financial crisis.
LD: Let’s talk more about that and some of the topics raised in your recent “Lessons Learned” article. Given the depth of the financial crisis, and some of the bad facts and resentment against financial institutions, why do you think you and other lawyers for the institutions were able to successfully manage the potential fallout that such massive litigation threatened?
EG: I think there were several things that were key there. There were some court decisions that really helped, and of course some that hurt. Early on, we won, on behalf of Bank of America and Countrywide, the Walnut Place case, which clearly established that RMBS investors couldn’t bring breach of contract suits in their own right, but had to comply with the contracts and work through the securitization trustees. That was key in limiting the amount of litigation that was filed. There was also very good law developed at the First Department and the New York Court of Appeals on the statute of limitations, and other key points. Together, those things helped limit the size of the problem.
Another key factor in any of these situations is the importance of being both honest and tough in the wide range of negotiations that you find yourself in with a wide variety of governmental and private actors. Relationships of trust – in the sense of integrity – are key, but you also can’t be seen as a pushover.
Finally, but not least important by any means, the client is key. The leadership that I worked with at Bank of America, both the legal team and the business people, were creative and thoughtful and empowered to try to get results. Not every company is going to respond well to crisis, but they really did.
LD: You’ve mentioned how lawyers on both sides used legal “innovations” to help successfully move through and settle the claims. Can you explain more what you mean by that?
EG: Together with our settlement counterparties at Mayer Brown and Gibbs & Bruns, I and my colleagues at Wachtell dusted off older principles and statutes pertaining to trust law, and were able to use what are really hornbook trust law concepts to settle RMBS claims in bulk. In the case of Countrywide, our 530-trust settlement, which was approved in full by the New York State Appellate Division, First Department, was the first bulk settlement of its kind. If 530 cases had had to wind their way through litigation, it would have been enormously taxing to the parties on both sides, as well as overwhelming for the court system. That was eight years ago, but I’m still proud of that.
In general, I think that the challenge that all parties faced with RMBS is that – as is likely the case in many commercial contexts – the contracts that formed the basis of the relationships were not carefully scrutinized by many market participants, and certainly not the subject of litigation, until that world collapsed. Then, everyone had to figure out how to make their best arguments under the complex provisions of those contracts, writing on a blank slate from a case law perspective much of the time. It brought out some good thinking on both sides!
LD: What would seem to be incredibly complicated about working on that litigation is all the different groups of claimants and government agencies involved. Can you comment broadly on the challenges of handling that on the defense side?
EG: The first thing any Board of Directors wants to know before approving any large settlement is “What’s left – how much peace are we achieving?” That’s true in any situation, but magnified multiple times when you have the scale of the mortgage crisis. One of the challenges (and satisfactions) of working with clients in those situations is helping internal business and legal people build out the whole jigsaw puzzle. That’s why I say this kind of work needs to be approached holistically.
In the mortgage crisis, I often worked with amazing lawyers from other law firms who were handling one case or set of cases for Bank of America. I love those relationships, and it has been a privilege to see some of the best legal minds in the country at work. But my role is to see how the implications of an argument, a ruling, a settlement or anything else would play out across the entire gamut of challenges the Bank faced, and in some cases is still facing. It’s very interesting.
LD: The regulatory environment has changed since the crisis. Can you share some big-picture thoughts about how another crisis – even if not as severe – might unfold differently litigation-wise as a result of reforms or an otherwise altered landscape
EG: I think the approach to risk has changed. Financial institutions are more willing to include “lessons learned” in the planning stages of decision making. But human nature is human nature – if investors lose money in another crisis, they are going to look for ways to get someone else to pay. But I do see a very considered approach to risk, and contracts, and an increased voice for internal and external legal in business decision making which one hopes would mitigate the impacts of a future crisis.
LD: Did you think of doing anything different after getting a degree in literature? How did your interest in law school develop? Did you know during law school that you wanted to be a litigator?
EG: Interestingly, in college, I always thought I’d get a Ph.D. and teach literature. My parents were academics and I loved my undergraduate studies at Yale. But then I went to Scotland to do graduate work in literature, and found that the isolating nature of graduate studies was not for me. Working alone in a library for weeks on end didn’t bring out the best in me – I needed people and interaction and collaboration and even conflict. I came back to New York, and looked for work while I tried to figure out a different plan. Thanks to some prior experience with online research, I fortuitously ended up with a job as a research librarian at Cravath. In those days, 1992 -1993, librarians were the only ones who really knew how to use Lexis, and Westlaw, and the other emerging online databases. So I worked very closely with a lot of the Cravath lawyers on research projects. I loved it – I loved reading cases, I loved being part of a team with incredibly smart lawyers, and I loved the crazy ‘round-the-clock adrenaline energy of a great law firm. I took the LSAT… and the rest is history.
LD: Can you discuss your path to Wachtell? Why did you want to practice here and what has kept you?
EG: I like to say that I came for the work and stayed for the people. As a law student, I was very intrigued by the then one-to-one partner-associate ratio and the reputation the firm had both for getting the “bet-the-company” work and for giving people very substantive work early on. I had a lot of loans, and the compensation structure did not hurt either. The work did not disappoint – it was as exciting as I expected and I had a lot of responsibility, and a lot of voice, from day one. While the quality of the lawyering did not surprise me, the friendships I formed and have kept did. The firm’s structure, and lockstep compensation at each level of seniority, really promote collaboration rather than competition, and that is pretty unique these days.
As a partner, I could not ask for more interesting and challenging work, or for better, more appreciative clients. I am one of the few people I know who enjoys coming to work most mornings. And I continue to benefit from the firm’s unique structure, including getting to work with some of most talented associates in the world. I also can’t overemphasize the excellence of the support staff here – everyone, from my assistant to the people in accounting to the paralegals to the folks in the mailroom, is truly outstanding.
I get approached about going elsewhere, but no woman is an island. I know that I could not be the lawyer I am without all of the other people I work with at Wachtell, lawyers and non-lawyers alike.
LD: Was there a case early in your career that stands out as particularly memorable or important to your development as a lawyer?
EG: There were several! But for these purposes, I’ll mention IBP v. Tyson. In that case, in an extremely expedited Delaware Chancery proceeding, we won, after trial, specific performance of a merger agreement on behalf of our client IBP. In the best Wachtell fashion, it was a great team effort that brought together a sort of “Who’s Who” group of our litigation partners, with a lot of input and collaboration from our corporate colleagues. I was a junior associate, but I learned an enormous amount – by doing – about managing discovery, prepping witnesses, defending depositions, writing briefs on an incredibly tight schedule and putting on a trial. I was very grateful to the judge, then Vice Chancellor Leo Strine, who recognized all the “invisible labor” that junior associates put in, and refused to hold argument on certain discovery disputes unless I was present to do the arguing. That was when I got comfortable on my feet in a courtroom.
LD: Along those same lines, were there any mentors who played a big role in your career?
EG: Again, many, and I hate to leave someone out. The judge I clerked for, Judge Sandra Lynch of the First Circuit, was tough, practical and a very crisp writer. I knew that there wouldn’t be a lot of women role models at Wachtell in 1997, so I sought out a female judge, and she was a great teacher. Barbara Robbins, was, when I joined the firm, our only female litigation partner, and she was a wonderful mentor as well. But I have been fortunate to have had the generous mentorship of many of the male partners at Wachtell who have pushed me to do my best, and who have given me a voice and opportunities for leadership from the very beginning. My firm sometimes in the past got a bad rap on gender issues – it was an issue I had many questions about when I was interviewing, such as where are your women lawyers? But these partners wanted me to succeed as much as I did myself. There are too many to name, but Bernie Nussbaum, Eric Roth, Ted Mirvis, and Marc Wolinsky certainly stand out from my time as an associate.
LD: Are there ways you can discuss in which you have sought to mentor younger lawyers yourself?
EG: I think the best mentorships are organic. I get to know the associates I work with very well, and I try to always be a real human being with them, and not just a boss. I let them see how the sausage gets made, and try to encourage them to take responsibility and ownership. The nature of law firm practice is that many more associates end up leaving than staying, and an important part of mentoring is helping people figure out what career path is right for them. It’s great to watch my former associates flourish all over the country. I have an alumni party (almost) every year for the veterans of my matters, and it’s one of my favorite things.
I also get different opportunities to speak to groups of young women, and that’s very rewarding. I try to encourage young women, whether lawyers or not, to perceive the world as a place of adventure and challenge, and not as a potential source of trauma. I tell them to take up space in the world, and to “say it with confidence.” I think they think I’m an old-fashioned sort of feminist, but that’s ok.
LD: Beyond mentoring in the law, can you please talk about your interest and role in the Sadie Nash Leadership Project, or any other public interest or community engagement.
EG: I’ve been on the Board of the Sadie Nash Leadership Project for about six years now, and just joined the Board of Mobilization for Justice this year. I’m a firm believer that we should be giving back, all the time. Sadie Nash is a great organization – unabashedly feminist leadership education for high-school-aged New York City and Newark women, primarily young women of color. I like the positivity and sense of community that is fostered at Sadie Nash, and that 80% of our alumnae complete college, almost all as first-gen college goers. What I bring to the table is my practical lawyer sensibility. I ask the tough questions. It’s a good fit.
Mobilization for Justice is a legal services organization here in New York City, and I’m still learning the ropes of what is a much bigger and better established organization than Sadie Nash. But in this era, giving less empowered populations good legal representation is more important than ever, and I’m proud to support the work that Mobilization for Justice does.
LD: Can you tell readers a few ways in which you keep yourself busy outside the office?
EG: My passions are travel and food. I’m always planning my next adventure; this Christmas it’s Thailand and the Philippines. I love to cook – it relaxes me – but I also love eating out all over the country, and since I travel a lot for work, I get to explore new cities and their restaurant culture all the time. I also love reading, and debating with the online community at Goodreads. I try to keep up with recent literary fiction in both English and Italian, so that’s a project! But really, people are the most important thing, and working the hours that I do, it’s important to devote my free time to the people I love and that have stuck with me on this crazy journey. So, mostly when I’m not working, I’m spending time with family and friends, enjoying a good meal at home or in a restaurant, or sipping something delicious while debating politics with my significant other. Like many lawyers, I have a repressed novelist living inside me, but she will have to wait for retirement to spread her wings.
About the author: John Ryan (firstname.lastname@example.org) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.