Kasowitz Benson Told To ‘Peddle [Their] Scare Tactics Elsewhere’

(Photo by Alex Wong/Getty Images)

Say what you will about the never-Trumpers turned into a political action committee marketing machine, The Lincoln Project, but they sure have made this election cycle interesting. Even those outside of the confines of Manhattan heard about their latest endeavor, a pair of Times Square billboards taking aim at Jared Kushner and Ivanka Trump and the Trump administration’s COVID-19 response.

And Kushner and Trump? Well, they’ve gotten a little lesson in the Streisand effect.

You see, when The Lincoln Project put up the billboards featured below, Kushner and Trump decided to call in the lawyers.

The pair are represented by the Biglaw firm of Kasowitz Benson Torres. And none other than name partner Marc Kasowitz penned a cease and desist letter calling the billboards defamatory and threatening to sue: “Of course, Mr. Kushner never made any such statement, Ms. Trump never made any such gesture, and the Lincoln Project’s representations that they did are an outrageous and shameful libel. If these billboard ads are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages.”

And though that legal move got even more people talking about the billboards, it wasn’t enough to stop The Lincoln Project. Their own lawyer, Matthew Sanderson of Caplin & Drysdale, went to town tearing the proposition that the billboards in question would lead to any liability for the PAC. Saying, “Please peddle your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster.”

The first, and most obvious, line of attack is that the First Amendment has repeatedly been held to project criticism of public figures. And the letter notes, “Your clients are no longer mere Upper East Side socialites, able to sue at the slightest offense to their personal sensibilities.”

“Public officials have periodically tried, as Kr. Kushner and Ms. Trump do here, to evade accountability and muzzle dissent by threatening or filing defamation lawsuits against critics. Fortunately, substantial constitutional protections are afforded to those who speak out about public officials.”

And besides, that “actual malice” standard is a pretty high bar.

But though sufficient, that is far from the only defense Sanderson has. “The Lincoln Project billboards are, in any event, are entirely accurate.” And then refers to a Vanity Fair article for the Kushner quote used in the billboard, and Trump’s Instagram account to refute the bizarre claim that she never made “any such gesture.”

The letter also drops a footnote arguing that Kushner and Trump are libel-proof, which is a delightfully subtle way of dealing with the issue. But the closing, well, it seems that the PAC is more than willing to go to court over this issue:

“The Lincoln Project would welcome the opportunity to further establish the truthfulness of its Times Square billboards through litigation and discovery, so sue if you must. In the meantime, may I suggest that if Mr. Kushner and Ms. Trump are genuinely concerned about salvaging their reputation, they would do well to stop suppressing truthful criticism and instead turn their attention to the COVID-19 crisis that is still unfolding under their inept watch. These billboards are not causing Mr. Kushner and Ms. Trump’s standing with the public to plummet. Their incompetence is.

This isn’t over. Mr. Kushner and Ms. Trump will hear more from The Lincoln Project soon.”

A simple “come at me, bro” would have done the same job in fewer words.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Wells Fargo May Deprive Investors Of Its Peerless Service And Customer Care

107-Year-Old Biglaw Attorney Dies Of Coronavirus Complications

(Image via Getty)

There comes a time in every lawyer’s life when they wish they could leave their firm because it feels like they’ve been there forever. Mordecai “Mordie” Rochlin, a tax and estates lawyer at Paul Weiss who retired about 37 years ago, but still worked at the firm as of counsel, was at his firm forever, and he credited the firm with enriching his very long life.

Rochlin, 107, recently passed away due to coronavirus complications (specifically respiratory failure, with viral pneumonia caused by COVID-19). According to research done by the firm, Rochlin was 20th oldest man in the country. He was just six weeks shy of his 108th birthday. Firm chairman Brad Karp referred to Rochlin as a “real treasure,” calling him the “embodiment of the history of Paul Weiss.”

Born in 1912, Rochlin was one of the oldest lawyers in New York, and until his death on October 23, he was the only person to have known and worked with all five of the name partners at Paul, Weiss, Rifkind, Wharton & Garrison.

Rochlin would spend a few days a week at the firm in his office on the 32nd floor signing checks, reading memos, and making phone calls, but would stay there for an hour and a half at most — after all, at his age, doing that kind of work was tiring. He remembered Paul Weiss history with “uncanny detail” and one of his stories appears in the New York Law Journal:

During his 107th birthday celebration last year, Rochlin also recalled the fortuitous meeting of firm partners right after the death of Louis Weiss, who worked as Marshall Field’s attorney and was the firm’s most prominent rainmaker. Rochlin, who had just been named a partner, sat on the floor of a room with the other partners at the Gramercy Park Hotel to discuss the firm’s future.

“The first question to be decided was are we going to remain as a firm despite the enormous loss of Louis Weiss,” Rochlin said. He said Simon H. Rifkind, a former federal judge who’d joined the firm earlier that year, was critical in making the case the firm could carry forward.

“It was a tremendous event in my life and the life of the firm,” Rochlin said.

At his last birthday celebration, Rochlin said, “Without the firm, I would have probably shriveled up somewhere in a nursing home and have long been put away.”

We here at Above the Law would like to extend our condolences to Mordie Rochlins’s family, friends, and colleagues during this difficult time.

Mordie Rochlin, Who Embodied Paul Weiss’ History, Dies at 107 [New York Law Journal]


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

White House Planning SECOND Superspreader Event For Amy Covid Barrett!

(Photo by Chip Somodevilla/Getty Images)

Once more unto the breach, dear friends!

A month ago, the White House held a massive outdoor gathering to celebrate nominating a Supreme Court justice in direct contravention of the rule they made up four years ago. It was primo grade trolling, unveiling a judicially batty nominee, before the prior justice was even buried, while flouting public safety protocols in the midst of a pandemic. It was an unnecessary spectacle foisted upon the country to performatively own the libs by showing that no amount of decorum, professionalism, or common sense is too little for this administration.

And then everyone got COVID.

After throwing a superspreader event that put the President of the United States on experimental drug cocktails for a week and forever marked the nominee as Amy Covid Barrett, they’re going to do it all over again!

Frankly, it’s crazy to have assumed that this wouldn’t happen. Anything else would imply that the White House made a mistake the first time and nearly killing Chris Christie is not something they’re prepared to consider an error. Besides, everyone’s immune now… maybe….

So bring everyone back over and throw another rally on the lawn!

What could possibly go wrong?

The White House Is Planning Another Outdoor Event for ACB Tonight and People Are Going Nuts [Washingtonian]

Earlier: ‘Amy Covid Barrett’ Discovers How Nicknames Actually Work


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Surprise! It’s Completely Wasteful For Clients To Impose Bespoke Billing Requirements.

Over the years, in-house counsel have gotten more persnickety about law firm billing. And while it’s true that the days of “further work” diary entries took advantage of the relationship between firms and clients, the modern era led to clients producing tomes of idiosyncratic billing guidelines to micromanage the process. Legal departments claim it’s about efficiency, but at the end of the day it’s just gumming up the whole process and creating unnecessary waste.

There are providers out there helping law firms cope with these billing bibles. The iTimeKeep system, for example, gives guidance at point of entry that something might violate a client’s specific billing rules. But for all the technological help out there, there’s reason to believe that it’s not going to be enough to stay ahead.

Because at a certain point these variations are going to be too much for the technology to police and then firms and clients are going to have to bring on people to sort it out.

Human error may be one problem that e-billing technology never entirely trumps. Lisa Pizzo Maki, the director of legal administration at Fiserv, noted that some law firms “will always be sloppy.” And while LEDES may continue to roll out new billing codes as the need arises, there’s no guarantee that a firm will use them. “For example, if I told my law firm ‘I want you to use e-discovery codes.’ What if they don’t?” she said.

But to be sure, law firms may also be struggling with certain aspects of the e-billing process themselves. HBR Consulting’s Clem pointed out that a firm may be grappling with a large roster of clients, all with different variations on billing guidelines. How a legal department feels about paying for first-year associates, for example, could vary from company to company.

Yet it is the tragedy of dealing with lawyers that “our billing system has gotten so complex and time-consuming to manage” is met with “so let’s throw more resources at it” rather than “maybe we should reconsider the mess we’ve made.

[Nathan Wenzel of SimpleLegal] believes that the value in ALSP bill review is the ability to go a step beyond an analysis of whether a bill complies with a specific set of guidelines. “[ALSPs] are going to bring in legal knowledge to identify if that work should have been done at all. And that is very powerful,” he said.

So now we’re hiring ALSPs to look at the bills that the software already reviewed to see if there are other arcane mistaggings and — more incredibly — to second guess whether the work should have been done in the first place? Make no mistake, no one is questioning Skadden’s bills. This is where that gap between the law firm haves and have nots grows with clients nickel and diming the Am Law 51-200 firms to death while never daring to question the elite firms that they hired in bet-the-company matters just to avoid taking any heat from the board.

This isn’t to say that there aren’t bad actors out there in the billing game, but if clients want cheaper options to remain viable they need to start reevaluating this drive to micromanage the billing process. Firms are already investing in tech and wasting more of their days complying with varying policies. Adding a whole other layer of cost in order to catch a sliver of overbilling and to compromise the firm-client relationship by challenging whether or not a research project was even necessary seems like a wasteful pursuit.

Can we all just get back to building a service relationship based on mutual trust? Is that too much to ask?

Legal Department Challenge: E-Billing Can’t Fully Automate Guideline Compliance [Law.com]

Earlier: In-House Counsel Make Increasingly Arcane Billing Demands And It’s Costing Firms Money

Layoffs Come To Kirkland & Ellis, The World’s Wealthiest Law Firm

Kirkland & Ellis is not only the richest firm in the world, it’s also one of the nation’s greatest law firms. But outside of the firm’s compelling combination of prestige, profitability, and pay, something seems to be going on at K&E. Even for a firm with more than 1,000 partners, Kirkland has lost an unusually high number of them in 2020. On top of that, the firm was the first to refuse to offer special fall bonuses to associates, leading some to question why K&E was unwilling to share the wealth during a reportedly banner year.

Now, we’ve received word that the firm has been conducting layoffs.

During the coronavirus crisis, several firms have opted to let staff go to through a series of outright layoffs — be it to rightsize their ranks or account for the new realities of working remotely — during these tough times. This seems to be what’s happening at Kirkland, but under the auspices of secrecy.

Numerous sources have reached out to Above the Law to let us know that support staff at Kirkland & Ellis are being quietly pushed out. Here is what is happening at the firm. First came the general alerts about layoffs at the firm. (Potentially identifying information of those laid off has been redacted from their accounts.)

Kirkland had a round of layoffs this week for staff. Several people from several offices.

Kirkland Houston is laying off staff. They’re being very cagey about the reasons, but it seems like COVID cuts. I don’t have a reliable number yet — I’m asking around internally, but management is trying to keep things quiet.

Wanted to let you know anonymously that despite Kirkland having an amazing year, they have started letting staff go, even after the weekly emails from John Ballis assuring us of how amazing the firm is doing and how all of our hard work is so appreciated.

Stealth staff layoffs at Kirkland & Ellis. Not sure if attorneys are on the chopping block. Makes sense now why they didn’t want to pay the fall bonuses, as they have presumably had this planned for a while.  Pretty disgusting though, considering the year K&E is having.

Then, more and more tips continued to pour in, each one more and more detailed:

I was told today that my position was eliminated due to COVID-19 at Kirkland & Ellis LLP. I’m sure I will not be the only person to receive a phone call and I’m sure they’ll be making cuts throughout the week.

A list has gone around to some senior employees that were let go and the numbers have been updated to between 54-58 staff members from various departments. Some to be let go tomorrow and others before December 31st.

Last week (Wed./Thurs.) Kirkland & Ellis fired ~50 employees from its Chicago office staff (legal assistants/paralegals, IT personnel, legal secretaries, photocopy dept., and other admin./staff positions. Evidence suggests firings occurred in its other offices, as well, but how many or from which of the 14 other offices is unclear at this time. There are rumors floating around that another wave of firings is slated before year-end. No one feels safe and tension is high.

This account was even posted on TheLayoff.com three days ago, around the same time the staff layoffs were happening at the firm:

I myself am a support staff person who was “let go” because of performance issues. It’s simply not the case. I had a lot of admiration for Kirkland during my time there but I am now glad that I am free from that toxic greed.

Sources have told us that they will receive assistance with COBRA payments from the firm as well as generous severance packages, but have cautioned that their separation agreements reportedly state that said severance will be withheld if they discuss the reason for their departure with anyone.

When Sullivan & Cromwell made staff cuts this summer, the firm’s executive director refused to comment on personnel matters. Kirkland seems to be refusing to comment, at all. We’ve reached out to the firm several times via phone and email for a statement but we’ve yet to hear back. If and when we do, we will publish an update here.

Best of luck to all those affected by the staff layoffs at Kirkland & Ellis.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

A Lack Of (Good) Faith III: Rethinking Section 230 For The 21st Century

Who would have thought that the current election season would have vaulted Section 230 of the Communications Decency Act into the forefront of the electoral conversation? Then again, social media platforms like Twitter and Facebook have brought intense scrutiny on themselves. As I recently began writing about the issues with Section 230 here and here, I have been dismayed by the intentional content manipulation engaged in by social media platforms under the guise of “fact checking” and curtailing “disinformation.” I would have never thought in my wildest dreams that I would witness the blatant exercise of editorial content manipulation by such platforms that claim to be the ostensible public square for free speech over the past few weeks. How so? How about the intentional refusal of Twitter to initially permit the posting of New York Post exposés related to alleged misdeeds by former Vice President Joe Biden’s son Hunter Biden, along with explosive evidence of potential profiteering off of the elder Biden’s position while vice president (and that is putting it mildly). Facebook also limited the spread of the same information. The result has been a maelstrom of criticism and divisiveness, and a chorus of calls to either repeal or reform Section 230.

First, let us dispel the notion that these platforms can’t take such actions on the content posted on their platforms — they can (and now frequently) do so. The issue is whether they should, and if they do, whether they should enjoy the immunity provided by Section 230 as a result. As confirmed by the United States Supreme Court in Manhattan Community Access Corporation v. Halleck, free speech protections afforded under the First Amendment guard against governmental abridgment of speech and do not apply to private platforms. That said, the actions of these platforms fly in the face of their own policies — Twitter’s own rules claim that its “purpose is to serve the public conversation,” while Facebook’s own Community Standards claim “to create a place for expression and give people a voice.” Public conversation and free expression, indeed.

Next, the calls to repeal Section 230 are simply misplaced — it is a knee-jerk reaction that ignores the fundamental need for a mechanism to protect free expression online. Section 230 rightly shields online service providers from civil liability for defamatory, tortious, and even illegal content that its users post onto the platform (such as in comments in forums or to news articles). A mechanism to permit reasonable, good-faith moderation of such content that is obscene, lewd, violent, etc. without fear of liability furthers such freedom of expression. The problem is that the statute was not only written broadly, but initially interpreted by the courts even more so in Zeran v. America Online, Incorporated, creating a string of jurisprudence that reads “too much immunity” into the statute as so aptly stated by Justice Clarence Thomas in his recent statement respecting denial of certiorari in Malwarebytes, Inc. v. Enigma Software Group USA, LLC. 

Some are correctly calling for Section 230 reform, but approaching it in different ways. For example, some seek to simply treat online service providers as publishers (as opposed to distributors), but this ignores the point of Section 230’s elimination of the distinction under Section 230(c)(1) and its necessary interoperation with the moderation protections afforded under Section 230(c)(2). Others have advocated for tinkering with the criteria for moderation of content, such as a longer laundry list of content that can be moderated, or replacing certain definitions in Section 230(c)(2) dealing with removal of content; however, these recommendations also miss the mark. First, any attempt at enacting a larger statutory laundry list applicable to all online platforms is a tall order (let alone one acceptable to the currently hyperpartisan Congress). Further, Section 230 protections have always excluded federal criminal law, and limiting the moderation to the current list as well as illegal content is helpful, but does not go far enough.

Personally, I remain an advocate of simple approaches where possible, and Thomas has the right idea. His plain reading of the statute is on point: “the statute suggests that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain third-party content in good faith, it is protected by§230(c)(2)(A).” Amen. This reading leads to three significant and necessary conclusions that are the crux of rethinking Section 230 from my perspective:

  1. Content creators remain liable. It’s easy to miss the forest for the tress here, but we need to remember that Section 230 protects online service providers from being held liable for third-party content. Section 230 does nothing to prevent affected parties from being held accountable for their own actions online.
  2. If you insert your platform into the conversation, don’t expect immunity for it. The premise here is simple and flows from the above point — if you engage in the conversation, then you should expect to be held accountable for your actions. Section 230 immunity is a privilege — online service providers (including social media platforms like Twitter, Facebook, and YouTube) only enjoy this legally conferred benefit if they meet the criteria for it. By taking the steps to limit or otherwise prevent political content from circulating on their platforms, these providers are acting as publishers — they cannot expect to not be treated as a publisher when they act like one.
  3. If you moderate content in bad faith, you lose your immunity as well. Online service providers have the right to run their platforms as they see fit, but that doesn’t mean that they can do so in a manner inconsistent with their terms and policies. From my perspective, an online service provider that chooses to limit certain speech under its terms must enumerate objectionable content in its policies, moderate such content fairly, and do so consistently in good faith. For example, if Twitter doesn’t like certain content because it feels the information is uncorroborated, then it needs to take the same position on other uncorroborated content, period. That said, we need to be careful here — content moderation will never be perfect and we don’t want to second-guess such actions (or worse, have the services do so themselves to such as degree that it encourages them to overly moderate content).

From my perspective, online service providers should avoid the issue entirely and stick to their policies rather than play politics with their content. Quite frankly, I find the recent actions not only catastrophically ill-conceived, but just plain stupid. Congress expressly sought to encourage online platforms to offer a “forum for a true diversity of political discourse” based on the legislative history of Section 230. Bad faith content moderation flies in the face of this intent. Social media platforms need to act more like a referee in the game, not one of the players — inserting themselves into the conversation is not their place. Of course, they are free (and absolutely have the right) to do so; however, don’t expect to be shielded from liability in the process.


Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

The Law Fusion Paradigm

I have a lawyer friend, who is incredibly indecisive, sometimes irritatingly so. He is so indecisive that he thinks those assorted biscuit trays are works of the Devil, put on this Earth to plague him, reminding him of his apparent inability to choose. He is often jokingly told that he could change the world if only he decided what he wanted to change. Now I know “many a true word is spoken in jest” but I think there is an underappreciated, contrary truth to be told in that adage as well. What I call the Fusion Paradigm.

Let’s talk about the incredible results that stem from combining seemingly disparate terms. A reflection that led to the establishment of the Fusion Paradigm.

According to Merriam-Webster, fusion is, “a merging of diverse, distinct, or separate elements into a unified whole.” A paradigm is a pattern or model. You may already have heard of fusion. If you’re a “foodie” then you’ll know that in the culinary world it means different foods in unusual combinations.

If you’re a real nerd then you’ll know about nuclear fusion — basically the energy process inside stars. And no, I don’t mean the influencer Frappuccino or Starbucks’ pumpkin spiced latte. I mean the big, fiery spheres of hot gas that the world revolves around, though I guess that applies to celebrities as well. Anyway, food is more popular than astrophysics so let’s talk about food fusion.

It’s normally a clash of cultures — mixed traditional dishes from different nations — but they can also simply be against the norm — like mac and cheese waffles. Some of you may be drooling right now, but I am certain there are others who are wondering who on Earth would think to make a macaroni and cheese waffle. I am willing to bet it’s people like my friend who, through the frustration of their indecision, decided to combine the things they couldn’t decide between. It has been so successful that it has initiated a new food industry.

My personal favorites are fruit sushi, ramen burgers, and miso avocado toast. I haven’t tried the mac and cheese waffles. But food is only a portion of the Fusion Paradigm that can be defined as “combining seemingly disparate entities in a complementary manner, such that the outcome is unusual yet incredible.”

Now, let’s talk about law fusion. Recently I crowdsourced law fusion to the legal community to find what it means to my colleagues.

Law fusion simply combines law with, well, anything else. It is the intersection of law and the rest of the world.

My favorite is obviously law and tech. My entire career is built on this fusion. And, I have to say, it is an amazing flavor. The law + tech fusion enriches and adds color to the practice, making it more efficient and accessible. It really gives you the headspace to increase your impact on law and business.

Of course, the law could be combined with psychology, business, management, motherhood, and coaching, to name a few. Really, you are limited only by your imagination! Rest assured, you will have fun at the intersection of law and the rest of the world. So, try it sometime!

In the end, the Fusion Paradigm can be an adventure, a quirk, or even a career. You can really have fun at the intersection of law and the rest of the world.


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Is Record Whistleblower Award A Lavish Reward Or Major Screw Job?

Morning Docket: 10.26.20

(Photo by Jason Kempin/FilmMagic)

* Johnny Depp’s lawyer has been reportedly thrown off a defamation case for revealing information covered by a protective order. Maybe the information was “pirated” or the judge should make the attorney “walk the plank”… [Courthouse News Service]

* A lawyer for the Lincoln Project told Ivanka Trump and Jared Kushner to “peddle their scare tactics elsewhere” after the couple threatened to sue the anti-Trump group over billboards in New York City. [Wrap]

* An Ohio lawyer has been arrested on human trafficking, racketeering, and related charges. [Cincinnati Enquirer]

* The Trump Campaign and the Nevada GOP have filed a lawsuit aimed at blocking election officials from counting early votes. [Business Insider]

* A photographer has filed a lawsuit after being hit with the horns of a steer after the 2019 Sugar Bowl. Sounds like a law school hypothetical… [AOL]


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.