Author: TSA Press

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Robyn Smith to our pages.

Years ago, an older male attorney advised me — kindly, I suppose — to stop bringing cookies into the office or I would never be taken seriously as a civil litigator.  It was the best advice he had for me, but we both knew there was no chance I would take it.  At that point in my life, I had a little girl at home who baked with me every week on Wednesday night, and the cookies I brought were her leftovers.  His point, though, was that the cookies drew attention to my gender, my family role, and my pronounced disadvantages that came from each.  I was a mother.  I would never be a great litigator.

But last year, pregnant with my second child, I tried three cases to jury verdicts over the course of my second and third trimesters.  As a lawyer, I was okay in those trials.  As a mother, though, I won about three million dollars in judgments for my clients.

I represent workers in cases involving discrimination, retaliation, wage abuse, and medical leave interference.  In 2018, my pregnancy changed the way I try cases forever.

Before this pregnancy, my trial mode was pretty typical for a litigator.  I ate very little, slept even less, and locked in on the facts of my case — to the exclusion of all of life’s other details.  You can’t do that when you’re pregnant.  So, for the three week-long trials in 2018, I ate plenty of food and slept at least seven hours a night.  But more importantly, I cared for the people I represented as a mother would. With the support of my trial teams, I let that basic principal guide my heart and my head.

The first trial of my pregnancy took place at the beginning of my second trimester.  I had made it past the fatigue and nausea of that first third of my pregnancy, and I was focused.  My client was a disabled worker who had been berated and bullied by a boss, then fired for reporting the harassment.  I had been called in to co-counsel the case when one of the previous attorneys had a personal emergency.  I’d known the client for about a month when the trial began.  Maybe it was the hormones, but by the first day of trial, I had become her surrogate mother.

Cross-examining her harasser, I was confronting my own child’s schoolyard bully.  Cross-examining the owner of the company, I was indicting the school principal who had turned a blind eye to the bad behavior, but then punished my child when she protested her own mistreatment.  More than once, at counsel table, I noticed my hand resting on my client’s forearm, reassuring her subconsciously.  Every night, when I prayed for my baby’s health, I prayed that my client would also grow confident and strong.

Getting up to address the jury for closing arguments, I felt my eyes fill up with tears.  Not now, damn it, I thought to myself.  It seemed like those days, everything made me cry.  The day before, it had been a quick glimpse at a stray dog on my drive home.  This time, it was the adrenaline that comes from standing in front of a jury to ask a bunch of strangers to determine that your disabled client had been victimized.

I quelled the surge and opened my mouth to argue my client’s case.  What came out was not quite the sermon I had practiced.  What came out was my mother’s voice.  For the next 40 minutes, I channeled my maternal outrage and love to ask a jury to vindicate my client.  I urged the jury to correct a great wrong.  I promised the jury that my client was determined to stand tall and move forward, no matter what.  And for a moment, the jury and the courtroom fell away as I locked eyes with my client and told her, as I would tell my own daughter, that she was a star.  It wasn’t until the jury’s unanimous verdict came back, awarding my client several hundred thousand dollars (a veritable fortune in a Kentucky courtroom) that I mused that my mom really had always known what she was talking about.

The last trial of my pregnancy took place in the sweltering summer, when I was eight months pregnant.  I scurried around the courtroom on swollen ankles and flat shoes, and all I wanted to eat was fruit and anti-heartburn tablets.

My client was a black woman who had been fired after complaining of race discrimination in her city job.  The city’s agents spent the week of trial describing her as “hostile,” “combative,” and “angry.”  By the time I took the floor to close our case, I was determined to set the record straight.  As I pointed out the subtle stains of racism in the city’s evidence, testimony, and argument, I felt my youngest child kicking along supportively.  I thought instantly of my oldest child, and I considered the horror of ever seeing her dehumanized and demeaned.  I implored the jury to see my client as a person, despite the city’s use of dog-whistle coding to portray her as a creature.  Again, I felt the threat of tears.  As I blinked them down, I looked at our jury and saw them nodding, glaring at the city’s representative, and writing down the numbers that they would later write on the verdict forms.

There’s no trick to it.  You have to speak from your heart and occupy an authentic space as an advocate.  In my case, that space is defined by my motherhood, because that informs every conviction, every desire, and every sense of purpose that I can truly express to 12 strangers.  I’ll never be a legendary litigator, as those things go.  I’m just a mother who doesn’t turn that part of myself off, ever. I could be any mother — and for all you know, I am the mother that you’re going to face next Monday at your hearing, or who is defending your next deposition, or who is reviewing your unreasonable written demand.  You are free to pay attention only to the baby bump, or the sensible shoes, or the plate of cookies.  I’ve never let them be disadvantages, and I have no plans to start now.

Earlier: Mothers At Law: Achieving Meaningful Success In The Legal Profession

---

Robyn Smith is a partner at Bishop Friend Smith & Beilman in Louisville, Kentucky, where she and her partners are building a practice model centered around universal human dignity and empowerment. The daughter of a firefighter and a nurse, Robyn represents workers in their matters involving discrimination, harassment, retaliation, workplace endangerment, opportunity and pay deprivation, and whistleblowing. In 2018, Robyn tried three employment cases in Kentucky, all to plaintiffs’ verdicts. She also persuaded the Kentucky Supreme Court to deliver a unanimous opinion embracing the rights of workers to recover against employers who wrongfully interfere in their unemployment benefits applications. The Kentucky Trial Court Review named Robyn runner-up for Plaintiffs’ Trial Lawyer of the Year. Throughout these professional adventures in 2018, Robyn prepared for the arrival of her youngest child (who was not, after all, born in the courthouse). Some of Robyn’s favorite people started off as her clients, and she enjoys few things more than helping them celebrate their personal triumphs over adversity.

Following the 2018 general elections and the violence that marked its aftermath, the Mnangagwa regime once again resorted to coercion in the face of the protests in January 2019. The protests were in response to the deepening economic crisis in the country, and part of the opposition strategy to contest the legitimacy of the government.

The response of the state to the protests was swift and brutal. Seventeen people were killed and 954 jailed nationwide. In May the state turned its attention to civic leaders, arresting seven for “subverting” a constitutional government. The repressive state response was felt once again on 16 and 19 August, when the main opposition Movement for Democratic Chance (MDC) and civic activists were once again prevented from marching against the rapid deterioration of Zimbabwe’s economy.

These coercive acts represent a continuation of the violence and brutality of the Mugabe era.

At the same time Mnangagwa has pursued his objective of global re-engagement and selective national dialogue. This is in line with the narrative that has characterised the post-coup regime.

In tracking the dialogue strategy of the Mnangagwa government, it is apparent that it was no accident that key elements of it were set in motion in the same period as the agreement with the International Monetary Fund (IMF) on a new staff monitored programme.

The purported objective is to move the Zimbabwe Government towards an economic stabilisation programme. This would result in a more balanced budget, in a context in which excessive printing of money, rampant issuing of treasury bills and high inflation, were the hallmarks of Mugabe’s economic policies.

The dialogue initiatives also took place in the context of renewed discussions on re-engagement with the European Union (EU) in June this year.

But, Mnangagwa’s strategy of coercion and dialogue has hit a series of hurdles. These include the continued opposition by the MDC. Another is the on-going scepticism of the international players about the regime’s so-called reformist narrative.

Dialogues

Mnangagwa has launched four dialogue initiatives.

• Political Actors: This involves about 17 political parties that participated in the 2018 elections. They all have negligible electoral support and are not represented in parliament. The purported intent is to build a national political consensus. The main opposition party, the MDC, boycotted the dialogue, dismissing it as a public relations exercise controlled by the ruling Zanu-PF.
• The Presidential Advisory Council: This was established in January to provide ideas and suggestions on key reforms and measures needed to improve the investment and business climate for economic recovery. This body is largely composed of Mnangagwa allies.
• The Matabeleland collective: This is aimed at building consensus and an effective social movement in Matabeleland to influence national and regional policy in support of healing, peace and reconciliation in this region. But it has come in for some criticisms. One is that it has been drawn into Mnangagwa’s attempt to control the narrative around the Gukurahundi massacres. These claimed an estimated 20 000 victims in the Matabeleland and Midlands regions in the early 1980’s. Another criticism is that it has exacerbated the divisions within an already weakened civic movement by regionalising what should be viewed as the national issue of the Gukurahundi state violence.
• The Tripartite National Forum. This was launched in June, 20 years after it was first suggested by the Zimbabwe Congress of Trade Unions. The functions of this body set out in an Act of Parliament, include the requirement to consult and negotiate over social and economic issues and submit recommendations to Cabinet; negotiate a social contract; and generate and promote a shared national socio-economic vision.

The establishment of the forum could provide a good platform for debate and consensus. But there are dangers. The Zimbabwe Congress of Trade Unions warned of the long history of the lack of “broad based consultation on past development programmes”. It insists that

reforms must never be deemed as tantamount to erosion of workers’ rights.

The strategy

In assessing the central objectives of the various strands of Mnangagwa’s dialogue strategy, three factors stand out.

The first is that the Political Actors Dialogue, the Presidential Advisory Council and the Matabeleland Collective were developed to control the pace and narrative around the process of partnership with those players considered “reliable”. Major opposition and civic forces that continued to question the legitimacy of the Mnangagwa boycotted these processes.

Secondly, the formal establishment of the long awaited Tripartite National Forum may serve the purpose of locking the MDC’s major political ally, the Zimbabwe Council of Trade Unions, into a legally constructed economic consensus. The major parameters of this will likely be determined by the macro-economic stabalisation framework of the IMF programme.

When brought together, all these processes place increased pressure on the political opposition to move towards an acceptance of the legitimacy of the Mnangagwa regime, and into a new political consensus dominated by the ruling Zanu-PF’s political and military forces, thus earning them the seal of approval by major international forces.

The MDC has responded with a combined strategy of denying Mnangagwa legitimacy, protests as well as calls for continued global and regional pressure. The MDC believes that the continued decline of the economy will eventually end the dominance of the Mnangagwa regime.

As part of its 2018 election campaign, the MDC made it clear it would accept no other result than a victory for itself and Chamisa. That message has persisted and is a central part of the de-legitimation discourse of the opposition and many civic organisations. The MDC has regularly threatened protests since 2018.

What next

The MDCs strategies have not resulted in any significant progress. The hope that the economic crisis and attempts at mass protests to force Zanu-PF into a dialogue are, for the moment, likely to be met with growing repression. Moreover, the deepening economic crisis is likely to further thwart attempts to mobilise on a mass basis.

The EU, for its part, is still keen on finding a more substantive basis for increased re-engagement with Mnangagwa and will keep the door open. Regarding the US, given the toxic politics of the Trump administration at a global level, and the ongoing strictures of the US on the Zimbabwe government have contributed once again to a closing of ranks around a fellow liberation movement in the Southern African Development Community (SADC) region.

Mnangagwa’s recent appointment as Chair of the SADC Troika on Politics, Peace and Security in Tanzania will only further cement this solidarity.

There is clearly a strong need for a national dialogue between the major political players in Zimbabwean politics. But there is little sign that this will proceed. Moreover, the current position of regional players means that there is unlikely to be any sustained regional pressure for such talks in the near future.

Post published in: Featured

Harvey Weinstein would like his sexual assault trial moved to Albany. Or Long Island. Or maybe to the moon. Anywhere but New York City, where the accused sexual predator is sure he can’t possibly get a fair hearing in the “circus-like atmosphere [that] has been created by government officials and political activists who view this matter more as a political, cultural, and social event than a criminal trial.”

One can almost make out the spittle flecks on the Motion for Venue Change filed by Weinstein’s lawyer Arthur Aidala as he inveighs against “MeToo” and “Times Up” (scare quotes original), “the so-called women’s march,” and “the rallying cry ‘believe all women,’ a position that is antithetical to due process.” Abandon hope all ye men who enter here, into this Amazonian hell of bra burners, where the defendant nonetheless spent enough time to be credibly accused of harassment and assault by multiple women.

Aidala bizarrely claims his client, who boasts a long history of supporting Democratic political candidates, is entitled to a trial somewhere in Red State America because, “Polls show this activism disproportionately impacts the opinions of democrats [sic], the largest demographic group in New York City.”

Citing programs on Hulu and Netflix, upcoming books on harassment that will be on prominent display in every Barnes and Noble in America, and the protests against his former lawyer Ron Sullivan at Harvard (which we assume is still in Massachusetts), Aidala argues that Weinstein can’t possibly get a fair hearing in New York City. The only solution is to move the trial upstate, forcing Court TV to cancel its planned coverage when the on-air talent refuses to spend the night at some crappy motel outside Albany.

Has a venue change ever been granted due to celebrity intimidation? After what Marisa Tomei did to Joe Pesci in “My Cousin Vinny,” isn’t her very presence a form of witness intimidation? Clearly, the court has an obligation to make it really inconvenient for “the celebrities and the activists [to] take advantage of the location in downtown Manhattan to show support for the complainants.” It’s the only way to achieve legal transparency.

It is safe to say that New York City is the least likely place on earth where Mr. Weinstein could receive a fair trial, where jurors could hear evidence, deliberate, and render a verdict in an atmosphere free of intimidation from pressure to deliver a result that the politicians, the activists, the celebrities, and the media demand.

It’s not entirely clear why Harvey Weinstein thinks that he’s any more popular 120 miles north on I-87. Is there some mythical upstate paradise where the air is clear and the internet is all dial-up and no one ever heard of sexual harassment?

Insisting that the trial has to be moved out of the city “to protect the privacy and confidentiality of the alleged victims of sexual assault in this case” is a nice touch from the guy who hired Israeli intelligence company Black Cube to spy on his accusers.

#LotsaLuck, buddy.

People v. Weinstein [Affirmation]
Harvey Weinstein Wants Rape Trial Moved Out Of NYC; Desires Venue “Free Of Intimidation” & Media Spotlight [Deadline]

---

Elizabeth Dye lives in Baltimore where she writes about law and politics.

The federal government has charged a pharmaceutical company that makes women’s health drugs with violating disclosure rules.

The Securities and Exchange Commission said Tuesday that it had charged Boca Raton, Florida-based TherapeuticsMD with violating regulations that govern sharing of nonpublic information. In particular, the SEC alleged, the company selectively shared material information with sell-side analysts without also making it public.

The allegations in the order concern the dyspareunia drug Imvexxy (estradiol vaginal inserts), which previously went under the development name TX-004HR and was approved last May, and interactions between the company and sell-side research analysts that took place in June and July 2017.

The SEC noted that the company had consented to its order without admitting or denying the findings and was ordered to cease and desist from future violations of the rule in question, Regulation FD, as well as agreeing to pay a $200,000 penalty.

Shares of the company fell 6 percent on the Nasdaq Tuesday following the SEC’s announcement.

“We are pleased to have resolved the matter,” TherapeuticsMD vice president for investor relations Nichol Ochsner wrote in an email, adding that the company has revised policies and procedures related to public disclosure of information and enhanced relevant training. “With the settlement behind us, we look forward to continuing our mission of advancing the health of women and championing awareness of their healthcare issues.”

The SEC noted that at the time of the alleged information disclosure, the company did not have policies or procedures regarding Regulation FD compliance.

According to the agency, the day after a June 14, 2017 meeting with the Food and Drug Administration concerning a complete response letter it had received for its application for Imvexxy, the company allegedly informed at least six sell-side analysts that the meeting was “very positive and productive.” On June 16, 2017, shares of the company rose 19.4 percent, prompting an inquiry by the New York Stock Exchange about whether disclosure of material information might be affecting the price.

A month later, on July 17, TherapeuticsMD issued a press release stating that it had submitted additional information to the FDA, but did not have a clear path forward regarding its approval application for Imvexxy, and its shares fell 16 percent in pre-market trading. But the SEC alleges that in a call and emails to sell-side analysts after the press release was issued, the company again selectively shared undisclosed details about the June meeting and information it submitted to the FDA. The analysts then published research notes containing the details, and the company’s shares rebounded, closing down only 6.6 percent.

Photo: Brendan Smialowski, Getty Images

We all know that a legal education can land the average law school graduate in up to six figures of debt (to be specific, 2018 graduates of private law schools racked up $123,511 in student loans while 2018 graduates of public law schools racked up $86,747 in student loans), and we all know that egregiously high tuition costs are to blame. According to the latest data from U.S. News, the average cost of tuition and fees at private schools for the 2018-2019 academic year was $48,869, while the average in-state and out-of-state cost of tuition and fees at public schools was $27,591 and $40,725, respectively.

But which law schools had the most costly tuition for the 2018-2019 academic year?

The Short List blog of U.S. News has compiled a ranking for that, and it’s not at all shocking that all 10 schools that made the list are private. At these law schools, the average tuition and fees for the 2018-2019 academic year was at least $64,000.

Here are the top 10 law schools with the highest tuition and fees:

SCHOOL		TUITION AND FEES (2018-2019)		U.S. NEWS RANK
Columbia University		$69,916		5
New York University		$66,422		6
University of Pennsylvania		$65,804		7
Cornell University		$65,541		13
Harvard University		$64,978		3
University of Southern California (Gould)		$64,908		17
Duke University		$64,722		10 (tie)
Northwestern University (Pritzker)		$64,402		10 (tie)
Yale University		$64,267		1
University of Chicago		$64,089		4

It’s certainly worth noting that the private law schools that made this list are among the best in the country. At highly ranked schools like these, you get what you pay for, and in the law school world, that usually means a high-paying paid job as an attorney that will allow you to service your enormous debt obligations in a timely fashion — and to be quite frank, with up to six figures of debt to pay off, that’s priceless.

No matter where you decide to go to law school, make sure that you evaluate what your payoff will be when graduation time rolls around. Given the information that’s readily available online, will you be able to find a job? Will you be able to make ends meet while making payments on your law school loans? If you don’t think the answer to these questions are “yes,” then you may want to consider another school.

10 Most Expensive Law Schools [The Short List / U.S. News]

---

Staci 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.

Monty Python and the Holy Grail is one of my favorite movies of all time. I lost count a long time ago of how many times I’ve watched it. I even went to a special screening of it a few years ago featuring a live Q&A with John Cleese afterward. All the comedy troupe’s films (and their show) are great, but Holy Grail stands above the rest for me.

But what does Holy Grail have to do with employment law?

Exempt v. Non-Exempt Employees

A very important area of employment law that creates a lot of misunderstanding among people who aren’t full-time employment lawyers is the classification of employees as exempt or non-exempt. Most of the time, exempt employees can be paid a flat salary and are not entitled to overtime when they work over 40 hours in a workweek. Non-exempt employees are usually paid hourly and are entitled to time-and-a-half for all hours worked over 40 in a workweek.

A common misconception is that a company can simply pick one or the other. Tired of paying all that overtime? Just call the employees exempt, pay them a flat salary, and voila, no more overtime! Right?

Wrong.

The federal Fair Labor Standards Act and the U.S. Department of Labor’s regulations have very specific rules that govern when employees can be classified as exempt and not be entitled to overtime pay. There are a limited number of exempt classifications for employees. The most common are found in section 13(a)(1) of the FLSA which provides exemptions for employees working in executive, administrative, and professional roles. (There are other types of roles that may be exempt as well, but these are three of the most common.)

To qualify for one of the exemptions, an employee must meet two tests: (1) the salary test and (2) the duties test. The salary test is easy. The employee must be paid on a salary basis at not less than $455 per week (although that amount will be going up soon with updated regs from the U.S. Department of Labor). That’s it.

The duties test is more complicated. To qualify for one of the exemptions, the employees must perform certain job duties and have certain levels of responsibility within an organization. The U.S. Department of Labor has a detailed explanation here of each of the exemptions.

I’m going to use examples from Holy Grail to show how these exemptions work in this article and in parts two and three in the coming weeks.

The Executive Exemption

Let’s start with a relatively easy one.

To qualify for the executive exemption, the first prong of the test is that an employee’s primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise. The second prong requires that the employee also customarily and regularly direct the work of at least two or more other full-time employees or their equivalent.

Finally, the third prong is that the employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight. The employee must meet all three of these requirements to qualify for the executive exemption.

King Arthur easily meets all the requirements for the executive exemption. First, he manages the enterprise. After all, he is the one who came up with the idea for the Knights of the Round Table and he was the one who was assigned the quest for the Holy Grail by God himself (“A blessing, a blessing from the Lord!”). He is in charge of the other knights and they all follow his directives. Arthur therefore manages the enterprise and satisfies the first prong.

The other knights might meet this prong because, after joining with Arthur, they each go on to “manage” their own piece of the quest and their own adventures. For example, during Sir Lancelot’s quest, he (on his own) valiantly attempts the rescue of Prince Herbert. He was not directed by King Arthur to do this. One could argue then that each of the knights are in fact managing at least a subdivision of the enterprise by doing their own individual quests.

Turning to the second prong of the executive exemption, King Arthur also meets this part of the test because he directs the work of the other knights and his servants (e.g., Patsy). He thus regularly manages two or more subordinates.

The other knights also satisfy this prong because they each have their own band of servants and hangers-on they direct. (For example, Sir Robin’s Minstrels. Although it’s not clear how much actual control Sir Robin has over them.)

King Arthur also has the authority to hire and fire employees, and so he meets the third prong of the test. As the opening scene demonstrates, he and his faithful servant Patsy begin their adventures by traveling the land (on their horses) in search of knights to join Arthur at Camelot (although Arthur later dubs it “a silly place”). As he encounters and evaluates his eventual Knights of the Round Table, he alone has the authority to hire these other knights. He does not consult with anyone or need anyone’s permission.

But the other knights don’t seem to have that authority. At no point in the film do we see the other knights recruiting others to join their court at Camelot or otherwise “hiring” anyone else. Instead, they go off on their own adventures in the business of the enterprise (namely, seeking the Holy Grail) and sort of do their own thing. While they might have some say in the hiring or firing of the other knights or others, that’s not clear in the film. So the other knights probably don’t meet the final prong of the executive exemption and would either have to be classified as non-exempt or maybe meet one of the other exemptions.

King Arthur is thus probably the only one who meets the requirements of the executive exemption. And that is how it usually is in most organizations: Typically, only the highest-level folks qualify for that exemption.

In the upcoming parts of this article, I’ll illustrate the other exemptions and some other wage-and-hour issues.

---

Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

JOHANNESBURG – Zimbabwe’s governing Zanu-PF says recent protests masquerading as a coup won’t be tolerated.

Kennedy Mandaza, the party’s spokesperson in South Africa, stopped short of condemning the excessive use of force by police against protesters in Harare last week.

He says security forces stepped in to restore order.

“There are a host of freedoms enshrined in the Constitution and Bill of Rights and Zanu PF believes in them. But what we must be clear of is that these rights are not absolute, only to those in the opposition and urban areas. When someone decides to express his constitutional right and this is what we have seen in the past,” said Mandaza.

The Movement for Democratic Change (MDC) planned rolling mass demonstrations in different cities starting last Friday. It accuses President Emmerson Mnangagwa’s government of mishandling the economy, which is facing its worst crisis in a decade, and repression.

A protest in Bulawayo was called off on Monday following a police ban supported by a court order.

Last week, officers fired teargas and brutally dispersed demonstrators in Harare.

CITES is the UN Convention on International Trade in Endangered Species.

Zimbabwean President Emmerson Mnangagwa shakes hands after addressing a meeting attended by white Zimbabwean farmers and businessmen on July 21, 2018 in Harare. WILFRED KAJESE/AFP/GETTY IMAGES