Author: TSA Press

* “This is not a game for us. This is deadly serious. We’re here to find the truth, to uphold the Constitution of the United States.” House Speaker Nancy Pelosi will not hold a full vote to authorize a formal impeachment inquiry into President Trump — yet. [POLITICO; CNN]

* Rudy Giuliani, President Trump’s personal lawyer, has officially failed to comply with a congressional subpoena. According to Giuliani, despite the fact that he’s reportedly the subject of numerous federal investigations, Jon Sale is no longer repping him, saying, “At this time, I do not need a lawyer.” Good luck with that, bro. [The Hill]

* You may remember Mossack Fonseca from the Panama Papers case, but now you’ll remember the firm as the one that sued Netflix for libel and trademark infringement for portraying its attorneys as villains in the new movie “The Laundromat.” Catch the flick this Friday from your couch. [Big Law Business]

* Students from Penn Law are marching to demand that Professor Amy Wax be shown the door. “We’re hoping that today people will join our call to fire her just to create a more inclusive space at the Law School that actually rectifies the harm that is being done.” But will it work? [Daily Pennsylvanian]

* In case you missed it, jurors recommended life in prison for Sigfredo Garcia after finding him guilty of murdering Professor Dan Markel, and a judge another 30 years on top for conspiracy to commit murder. Prosecutors still intend to retry Katherine Magbanua. [Tallahassee Democrat]

* Sign up here if you’d like to take part in a conversation between best-selling author John Grisham and former U.S. attorney Preet Bharara (S.D.N.Y.) tonight. I’ll be there to cover the event for Above the Law, and I hope to see you there. [TimesTalks]

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.

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

Calling All Legal Ops Leaders: The 2019 LDO Survey Is Live

LDO and Above the Law

Joe and Elie discuss the in-house world. Lawyers and law students often daydream about what they perceive as the cushy world of going in-house. But these lawyers face their own challenges. A recent comprehensive survey of corporate legal departments reveals confusion over privacy requirements and complaints over outside counsel costs.

BYOD practices at companies and firms can be a huge headache for IT professionals. A few weeks back, I had the opportunity to present the counterpoint to arguments in support of so-called Bring Your Own Device policies. We were in Chicago for the PREX Conference — an event devoted to corporate legal professionals  — and my friend and colleague David Cohen made the argument in favor of BYOD.

I took the position that allowing employees to connect their personal devices to company systems creates unnecessary security risks; they impact legal, compliance, and management decisions every organization has to confront, and they create a huge burden for IT professionals, with negligible cost savings. Moreover, I argued, allowing employees to connect personal devices at work encourages personal activity on company time, and it could give rise to wage and hour claims.

For those legal operations readers who were not in Chicago for PREX, I thought it may be useful to recap the three big reasons BYOD policies are problematic.

Security. Under BYOD policies, employees are accessing company information on their phones, tablets, and laptops. Some would say that Apple devices are pretty secure, while Android devices are less so. It’s easy to swap out a SIM card on an Android device.

There’s also all the WiFi and hotspot connections all over the place. Anyone who’s even marginally paying attention has heard horror stories about hacked WiFi connections. It is true that if a hacker really wants to get your data, they can. The question is: Why make it easier?

Laptops present a whole other dimension of security risk. In a virtual desktop environment, it’s better; but with VPN connections, there is data going back and forth and applications are running on the laptop. It’s just another opportunity for a hacker to intrude.

BYOD policies basically surrender control of the device to the user and experience tells us that do so more often than not results in bad outcomes.

Inconvenience. It is a logistical nightmare to manage employee devices under a BYOD policy. Some people may have two or three devices. IT professionals need to support all these devices, with different operating systems, and there are software incompatibility issues. Consequently, IT folks need to buy Mobile Device Management programs, hire additional staff, and constantly push out updates and security patches to all these different devices. If you’re a small organization, this affects scalability and impacts organization infrastructure, not to mention costs.

Legal. BYOD policies implicate storage, retention, data transfer under the GDPR, and other regulatory schemes. And there are privacy issues. What about legal holds? Legal holds, incident response, and data breach — it’s difficult to imagine three more important risks that legal operations professional face. How do you put a legal hold in place when every employee has three devices and they are geographically dispersed? In today’s interconnected world, these devices often contain the most critical evidence.

Lastly, wage and hour claims have been on the rise in part because of BYOD policies. Hourly or non-exempt staff may need to be instructed not to answer emails after hours unless you want to pay them overtime, and even that may not suffice.

In short, BYOD policies are not more secure. With company-issued devices, the company can control them and dictate the terms of their use. BYOD policies are also not more convenient. In fact, they present a logistical and management nightmare for IT folks. And lastly, the legal risks simply outweigh the benefits of having a BYOD policy.

And frankly, it is not at all clear if BYOD polices are more cost-effective because IT can bulk purchase devices and employees insist that employers pay for data plans and software licensing.

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

— Justice Sam Alito took the unusual, for him, step of noticing that corporate interests sometimes have preferred outcomes in Supreme Court cases. If only he could have used this “excessively cynical” lens before going along with Citizens United.

What law school was again named the 2019 Best Value Law School by preLaw magazine, a National Jurist publication?

Hint: The ranking is based on ultimate bar pass rate and two-year pass rate (15 percent); employment rate (35 percent); tuition (25 percent); cost of living (10 percent); and average indebtedness upon graduation (15 percent).

See the answer on the next page.

I graduate at the top of my class at Harvard Law School. Afterward, the university’s president shuts down the school, since its mission of educating the best legal mind has been fulfilled.

I get a summer internship clerking for Ruth Bader Ginsburg. She’s so inspired by meeting me that she lives for another hundred years. …

I become a senator, a Supreme Court Justice, and the President of the United States—all at the same time. The Constitution allows for that now; the country amended it because I’m so polite, dress extra nicely, and send prompt thank-you notes after interviews.

I die peacefully in my sleep at a hundred and seven years old, surrounded by my loving family. As I look back on my long and successful life, my final words are, “I’m so grateful that my mom told me not to pursue comedy, an unrealistic and fanciful career choice.”

— Johnathan Appel, a comedian and writer, telling the world how great his life would have been if he went to law school, according to his mother, in a hilarious piece published in the New Yorker.

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.

Although the term “originalist” could in theory describe virtually every current member on the United States Supreme Court, for many supporters of traditional conservative originalism, the moment of triumph for the judicial philosophy occurred on Monday, April 10, 2017, when prominent originalist Justice Neil Gorsuch joined the nation’s highest court. With the addition of Brett Kavanaugh, another avowed textualist/originalist, one would likely expect originalism to exist at its all-time pinnacle of influence on the Court. Yet, when the most consequential cases involving some of our most fundamental liberties from the last couple of years are examined, entirely missing from the Court’s and often from the most prominent originalists’ analysis is an intellectual support based on original public meaning.

Instead, what has dominated the Court’s most consequential opinions are modern-based (politically conservative) value judgments that can stand in direct conflict with the lawful original intent of Congress. Take, for example, the case I was involved with last term, Nieves v. Bartlett. Here, the Court was determining whether a viable 42 U.S.C. § 1983 claim existed, yet, the only side, our side, that listed the language from the statute as a source of authority, lost. Unfortunately, the result in Bartlett can be found in most 1983 cases, where “the Supreme Court has taken a straightforward statute, plainly providing that any state official who violates someone’s rights ‘shall be liable to the party injured,’ and concocted an atextual, ahistorical doctrine,” to deny a remedy Congress plainly intended. Although Justice Gorsuch dissented, in part, from the Court’s Bartlett opinion based on originalism grounds, Justice Brett Kavanaugh joined the atextual, ahistorical majority opinion in full.

Contrast the shamelessness (even by self-proclaimed originalists such as Kavanaugh) of unilaterally altering the lawful, enumerated intent of Congress in the Bartlett case to strike down claims of police misconduct, with the Court’s stubborn refusal to “second-guess lawmakers’ judgments” when it comes to gerrymandering based on factors such as race, and you don’t need to be a constitutional expert to see the judicial activism going on here.

To be clear, and for whatever it is worth saying at this point, I subscribe to the view of constitutional originalism as the preferred dominated method of judicial analysis. But what I see in practice today, even from prominent originalists, is simply not originalism.

This upcoming term, a case will seemingly require the Court to weigh a textual conflict over whether discrimination against members of the LGBT community counts within the plain meaning intent of Congress to prohibit “sex discrimination.” As Nicholas Little explains, although it might seem counterintuitive to some, there is a powerful textualist, even originalist argument in favor of a definition that includes protection for LGBT people:

Focusing on the category of sex, here, we can see that if a woman is fired from her position because she is married to another woman, whereas a man would not be fired for being married to a woman, then the termination is the result of the woman’s sex. She is treated differently for not being a man. Similarly, if an employer permits women to wear skirts to work, and refuses to promote an individual who the employer sees as a man, because that individual chooses to wear skirts to work, that individual is being discriminated against for not being what the employer defines as “a woman.”

“But wait,” many people say. “There’s no way in 1964 Congress intended to protect gays or transgender folk.” And they aren’t wrong. In 1964 homosexual relations were criminal in much of the country – Illinois in 1961 was the first state to decriminalize such sexual activity by repealing its sodomy laws. But lack of intent doesn’t matter to textualists such as Justice Neil Gorsuch. To them, all we need to interpret a law is the law itself. The words passed by Congress, and their plain meaning, is what defines the scope of the law.

Under that analysis, it’s very tough to argue that firing a lesbian, or a transgender person, isn’t discrimination based on their sex. The Supreme Court has long held that gender stereotyping is covered by Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), refusing to make a woman partner in an accounting firm because of her lack of femininity was held to violate the law. Requiring the plaintiff to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” as her supervisor advised her, violated the law. Men would not be required to act in that fashion to be promoted. There is nothing in the text of the law that suggests the same analysis should not apply to men and women simply because of their sexual orientation or gender identity. The law is the law – you can’t make hiring and firing decisions based on stereotypes of femininity and masculinity.

Yet despite this straightforward textual argument, Little, like myself, has serious doubts Justice Gorsuch will act with “intellectual integrity.” The reason is because of what Little calls Justice Gorsuch’s “position on religious exemptions.” I have been more blunt than Little and stated that when it comes to cases involving religious liberty, Justice Gorsuch has actively tried to supplant original public meaning and intent with his own personal views favoring religious belief at the great expense of free conscience rights of non-believers. The reason Justice Gorsuch suddenly flips from his avowed interpretive doctrine when it comes to the subject of religious liberty is entirely speculative. A logical inference, however, can likely be derived from the recent statements of our last two attorney generals, who, after being appointed by the same man, have portrayed Madisonian separation, i.e., secularism, as a dire threat to our Constitution and our country that must be stopped lest American morality crumble.

I will admit, the reason I am such a proponent of original, Madisonian religious liberty, is that it represents the best bulwark against religious bigots like former Attorney General Jefferson Beauregard Sessions and current AG William Barr who want to treat me as some kind of threat to my country’s “traditional values” unless I subscribe to their Abrahamic religion. Adherence to original public meaning has other virtues, of course, other than protecting oneself against the bigoted views of the Sessions and Barrs of the world, I just won’t expect to be seeing them in practice anytime soon.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

I usually limit my “3 Questions For…” written interviews to three questions. But when you have the opportunity to correspond with one of the country’s best lawyers in a leadership capacity at one of its most successful law firms, you gladly make exceptions. Welcome to the inaugural “3 More Questions For” column, whereby we continue our discussion with Boies Schiller’s Bill Isaacson, who generously agreed to discuss some of his headline-making past victories. You do not become famous and successful winning the easy cases, of course. The cases discussed by Bill below were anything but easy — but that is what makes them important for us to learn from. Whether it is taking the initiative to uncover a price-fixing scheme by Chinese vitamin makers to taking on the NCAA on behalf of student-athletes, Bill has consistently proven that a true trial lawyer must demonstrate diligence and curiosity in equal measure — and that winning a case is very much predicated on the preparation that took place pre-trial.

As with last week, I have added some brief commentary to the answers below, but have otherwise presented Bill’s answers as he provided them.

1) One of your notable professional successes was succeeding in the first antitrust action against Chinese companies for price fixing, based on their manufacture and sale of vitamins into the U.S. You personally investigated and uncovered the price-fixing scheme at issue. Today, Chinese-U.S. relations are at the forefront of economic news, with a key issue being alleged Chinese theft of U.S. IP. Did you learn anything in the vitamin case that can help us think about how to relate to IP issues and China?

We learned from investigations into the formation of export cartels in China that following China’s accession to the WTO, companies in China were given a free hand to engage in all sorts of new commercial practices without the oversight of the government.  Ironically for a communist regime, it became the Wild West, to some extent. When I see the air pollution in China from the lack of environmental regulation, I connect it to the same type of changes. Theft of IP fits within that same framework, to my mind. 

GK: In case any of us ever forget the power we have as lawyers to effect positive change, it behooves us to recall Bill’s work in the price-fixing case against the vitamin makers. Rightly hailed as a landmark achievement, it reminds of the power of curiosity and initiative as precursors to using the legal process in order to right a wrong. And his observation that IP theft is a symptom of the Chinese government’s inability to contain the massive economic changes they have fostered is spot on. 

2) Another notable success of yours was your work on behalf of college athletes in the O’Bannon v. NCAA case. One of the key issues in that case involved the NCAA profiting off the images and likenesses of athletes in video games. In this age of video games and social media, it seems like celebrities and athletes should be more mindful than ever over how their likenesses can be used to generate commercial value for others. What do you think are the next steps for college athletes looking to get their fair share of the enormous revenues generated by their athletic exploits?

The possibility of state legislation, such as is being considered in California, looms large for this issue.  But there is still the prospect for more private antitrust litigation. It is worth remembering that the antitrust case against the NCAA is not that universities must pay college athletes; it is that universities may not form a cartel or agree not to pay athletes, including for their names, images, and likenesses.  Can you imagine the reaction if technology companies all agreed among themselves to accept new programmers only through unpaid internships with scholarships to cover their living expenses? By providing educational internships and important training, the companies could claim to provide as much educational benefits as many colleges, but no one would tolerate such a system.

One next step forward challenging NCAA rules may come when a top college athlete files an action to protect his rights.  Two years ago, when Trae Young played basketball for his single season at Oklahoma, or last year, when Zion Williamson played his one year at Duke, their names and images were everywhere on ESPN and regional conference networks promoting NCAA games.  It is hard for me to believe that each of those individuals did not have a strong case to challenge the exploitation of their names, images, and likenesses. I also wonder if it could all change quickly if a college football team just agreed not to play their bowl game as a protest against the restrictions imposed on them. 

GK: The exploitation of college athletes in revenue-generating sports is a continuing injustice. While an incremental step, Bill’s victory against the NCAA has helped create the conditions for a future sea change in the way those athletes are treated. Protesting exploitation is a necessary first step towards getting it to stop. Fortunately for the athletes in the NCAA case, they had a lawyer of Bill’s caliber to make their case. 

3) Large copyright infringement verdicts are pretty rare, with your 2015 verdict for Oracle a high-profile example. What was your favorite part about trying a copyright case to a jury?

The case we tried for Oracle against Rimini Street was, to my mind, about theft of IP.   Our goal at trial was to break down the walls that we contended Rimini was using to hide what it was actually doing.  Achieving that required both intense technical work and precise cross examination of witnesses, both of which were gratifying.  The Ninth Circuit in the last month affirmed an important injunction against Rimini’s continued use of Oracle’s copyrighted software that was another important step in that litigation. 

GK: Here again, we see the value of curiosity and hard work as essential components of a trial victory. At the same time, winning at trial often involves weaving a moral narrative, particularly in IP cases, where themes such as rewarding the innovator or punishing the copycat are so often used before judges and juries. Telling that story persuasively is always easier for the trial lawyer when they share in the sense that their client’s cause is a just one. It is no surprise, therefore, that Bill was able to generate such a significant verdict for Oracle, believing as he did that Oracle’s IP was stolen.  

Thanks again to Bill for being so generous with his time and observations for this audience. It is always a privilege to hear from those at the very top of our profession, especially when they have such interesting perspectives to share on a broad range of topics. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer. La Cheeserie to all!

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.