Finished Business – The SEC’s New Pay Versus Performance and Clawback Rules – Practising Law Institute

In
the
late
summer
and
fall
of
2022,
twelve
years
after
passage
of
the
Dodd-Frank
Act,
the
SEC
finished
the
last
two
rulemakings
required
by
the
statute. 
The
first
(“Pay
versus
Performance”) 
requires
relatively
complex
disclosures
to
compare
compensation
“actually
paid”
to
executive
officers
to
various
company
performance
measures. 
The
second
requires
securities
exchanges
to
adopt
standards
that
require
listed
companies
to
adopt
policies
for
the
recovery
(i.e.
“clawbacks”)
of
“erroneously
awarded
incentive
compensation”
received
by
both
current
and
former
executive
officers. 
Both
sets
of
rules
require
complex
judgments
and
decisions
as
companies
adopt
new
policies
and
prepare
new
disclosures. 
Please
join
Gary
M.
Brown
of
Nelson
Mullins
Riley
&
Scarborough
LLP
and
SEC
Institute
Director
George
M.
Wilson
as
they
discuss
the
details
of
these
complex
new
rules
and
the
implementation
steps
required.

In
this
Briefing
faculty
will:

  • Review
    the
    details
    and
    implementation
    challenges
    of
    the
    SEC’s
    new
    pay
    versus
    performance
    rules

    40
    Minutes
    • Overview
      the
      format
      of
      the
      required
      tabular
      information
      and
      related
      disclosures
    • Discuss
      the
      required
      line
      items
      for
      the
      principal
      executive
      officer
      and
      averages
      for
      named
      executive
      officers
      in
      the
      table
    • Discuss
      issues
      in
      identifying
      other
      required
      financial
      performance
      measures,
      including
      computation
      of
      peer
      group
      total
      shareholder
      return
    • Review
      complexities
      in
      computing
      “compensation
      actually
      paid”
    • Review
      required
      financial
      performance
      measure
      disclosures,
      including
      total
      shareholder
      return
      and
      a
      “Company-Selected
      Measure”
    • Identify
      challenges
      in
      disclosing
      the
      relationship
      between
      compensation
      “actually
      paid”
      and
      the
      financial
      performance
      measures
      presented
      in
      the
      table
    • Explain
      Inline
      XBRL
      tagging
      requirements
    • Review
      compliance
      dates
  • Review
    the
    details
    and
    implementation
    challenges
    of
    the
    SEC’s
    new
    compensation
    recovery
    or
    clawback
    rules

    20
    Minutes
    • Explain
      the
      requirement
      for
      exchanges
      to
      adopt
      listing
      standards
    • Discuss
      provision
      for
      companies
      to
      adopt
      policies
      required
      by
      the
      listing
      standards
      • Requirements
        within
        such
        policies
    • Describe
      how
      an
      accounting
      restatement
      triggers
      the
      requirement
      to
      recover
      “erroneously
      awarded
      incentive
      compensation”
    • Explain
      three-year
      period
      considerations
    • Review
      application
      to
      both
      “Big
      R”
      and
      “Little
      r”
      restatements
    • Discuss
      measuring
      amounts
      and
      related
      challenges
    • Overview
      practicality
      exceptions
      to
      requirement
      to
      pursue
      recoveries
    • Review
      disclosures
      required
      by
      the
      new
      rule
    • Explain
      Inline
      XBRL
      tagging
      requirements
    • Review
      compliance
      dates


Who
Should
Attend:

 Accountants
and
attorneys
who
deal
with
SEC
reporting
and
disclosure
and
related
accounting
issues,
including
CFOs,
controllers
and
their
staff,
internal
auditors,
partners
of
public
accounting
firms
and
their
staff,
in-house
counsel,
outside
attorneys


Program
Level:
 
Update 


Prerequisites:
 
None 


Advanced
Preparation:
 
None

Case Status, Mobile Client Portal and Messaging App, Raises $5M Series B, For Total Raise of $11M


Case
Status
,
a
mobile
client
portal
and
messaging
platform
with
a
primary
focus
on
consumer
law
firms,
has
raised
$5
million
in
a
Series
B
round,
bringing
its
total
funding
to
over
$11
million. 

Last
January,
the
company

raised
$3.5
million

in
a
Series
A
venture
capital
round,
and
it
had
previously

raised
of
$1.5
million
in
seed
funding
 in
2020
and $750,000
in
funding
in
2019
.

This
latest
round
was
led
by

Panoramic
Ventures
,
which
also
participated
in
its
Series
A
round.




Learn
more
about
Case
Status
in
the
LawNext
Legal
Technology
Directory
.

Cofounder
and
CEO

Andy
Seavers

said
it
has
never
been
more
important
for
law
firms
to
scale
client
service,
and
that
includes
what
he
calls
the
“legal
technology
triad”
of
their
businesses:
intake,
case
management
and
client
service.

While
many
businesses
use
generic
customer
service
software
such
as
Zendesk,
Hubspot
or
Intercom,
he
said,
Case
Status
is
specifically
designed
as
a
dedicated
platform
to
support
client
service
in
the
legal
industry.


Case
Status
was
cofounded
in
2017
by
lawyer 
Lauren
Sturdivant
,
who
later
returned
to
law
practice
but
remains
chairman
of
the
board,
and

Seavers,
who
was
its
CTO
before
becoming
CEO
after
Sturdivant’s
departure. 

Its
primary
customer
focus
is
on
consumer
law
firms
in
the
United
States
and
Candada
offering
services
on
a
flat-fee
or
contingency
basis.
Its
customers
include
firms
in
personal
injury,
immigration,
family
law,
and
more,
as
well
as
professional
services
organizations
outside
the
legal
profession,
such
as
veterans
affairs
and
senior
living.

Its
mobile
app
serves
as
a
mobile
client
portal
and
provides
clients
with
case
updates,
text
messaging,
appointments,
and
more,
all
delivered
securely
on
their
phone.

It
also
integrates
with
a
number
of
practice
management
platforms.

Sturdivant
told
me
that
the
company
continues
to
exceed
its
projections
for
growth
and
is
being
implemented
in
some
of
the
largest
firms
in
the
U.S.

“Case
Status
updates
are
turning
into
the
new
norm
in
legal,”
she
said,
“which
is
how
it
should
be.”

The Beat Of Unchecked Egos Goes On … And On – Above the Law

(Image
via
Getty)

I
guess
that
Michael
Avenatti

the
California
lawyer
who
represented,
among
other
clients,
Stormy
Daniels
in
her
claims
against
Donald
Trump

never
learned
the
Eighth
Commandment,
that
is,
do
not
steal.
It’s
bad
enough
when
anyone
steals,
but
when
a
lawyer
steals,
embezzles
funds
from
his
client
trust
account,
and
then
pleads
guilty,
it’s
anyone’s
guess
as
to
what
the
sentence
might
be.
We
had
a
saying
in
the
district
attorney’s
office
where
I
worked:
“don’t
do
the
crime
if
you
can’t
do
the
time.”

The
guessing
is
over.
A
federal
judge
here
in
Orange
County

gave
Avenatti
a
very
stiff
sentence

(well-deserved)
for
theft
of
client
funds
and
defrauding
the
IRS
out
of
payroll
taxes.
So,
he’ll
be
spending
14
years
in
the
pokey
to
run
consecutively
with
the
five-year
sentence
he
is
currently
serving
for
the
Nike
extortion
caper
in
New
York.

Although
Avenatti
expressed

remorse
for
his
conduct


and
the
shame
it
brought
upon
his
family,
friends,
and
the
profession

he
also
claimed
that
at
no
point
in
time
did
he
set
out
to
bilk
his
clients.
(I
wonder
if
he
was
able
to
say
that
with
a
straight
face.)
His
bilked
clients
would
disagree
since
he
took
their
funds
and
lived
an
extravagant
lifestyle
at
their
expense.
Sounds
like
another
disgraced
Southern
California
lawyer,
doesn’t
it?
But
Tom
Girardi,
diagnosed
with
Alzheimer’s,
spends
his
days
in
an
assisted
living
community,
not
prison.

Was
Avenatti’s
downfall
narcissism?
Did
he
believe
his
own
press
and
think
that
he
wasn’t
going
to
get
caught?
That’s
the
feeling
of
a
lawyer
who
formerly
worked
in
Avenatti’s
firm.
The
Los
Angeles
Times
article
quoted
Andrew
Stolper,
who
said
that
“None
of
it
makes
any
sense
other
than
he
deluded
himself
into
thinking
he
could
get
away
with
it.
If
you
sit
down
and
try
to
rationally
figure
out
why
a
successful
lawyer
would
resort
to
stealing
money
from
his
clients
and
at
the
same
time
elevate
himself
to
the
national
stage,
there’s
not
enough
hours
in
a
lifetime
to
figure
that
out.”
Well
said.

Do
you
think
that
ATL
will
ask
for
the
return
of
its

2018
Lawyer
of
the
Year
Award
given
to
Avenatti
?
BTW,

the
article

does
not
mention
Michael
Avenatti
as
a
previous
awardee.

From
time
to
time,
every
lawyer
has
told
a
client:
STFU.
However,
some
clients
just
can’t
help
themselves
and
find
themselves
with
terminal
cases
of
foot-in-mouth
disease.
At
least
several
clients
are
in
the
news
right
now
whose
egos
apparently
do
not
allow
them
to
take
lawyerly
advice.
Of
course,
all
of
them
are
smarter
than
the
lawyers
anyway,
until
they
stand
before
the
judge.
Then
humility
and
groveling
replace
the
overweening
egos.

So,
it
was
nothing
new
when
the
lawyer
who
had
represented
Bernie
Madoff
(remember
him?)
told

Samuel
Bankman-Fried
,
CEO
of
his
now-defunct
crypto
empire
FTX,
to
say
nothing,
zero,
zip.
We
all
learned
in
evidence
the
power
of
an
admission,
which
takes
a
lousy
case
from
metal
to
gold.
Bankman-Fried’s
self-styled
apology
tour
will
do
him
no
good,
especially
if
he
hopes
to
stay
out
of
jail.
He’s
a
classic
example
of
two
things:
a
client
who
won’t
take
his
lawyer’s
advice,
and,
while
wielding
a
shovel,
keeps
digging
his
own
grave.
We’ve
all
had
clients
like
that.
Clients
always
think
that
they
know
best.
How
will
Bankman-Fried’s
“it’s
all
a
big
mistake”
defense
play
out
in
bankruptcy
court?
In
any
criminal
case
that
might
be
filed?
Any
other
litigation
that’s
sure
to
arise?

And
then
there’s
another
client
with
a
ginormous
ego.
If
you
were
to
compare
egos
between
the
former
president
now
trying
to
get
back
into
the
White
House
(through
the
front
door,
a
side
door,
or
however
else)
and
Elon
Musk,
I
think
it
could
well
be
a
dead
heat.
Should
the
number
of
legal
issues
staring
at
each
of
them
be
used
for
comparison?

Trump
certainly
has
his
share:
the
Trump
Organization
convictions
in
New
York;
the
E.
Jean
Carroll

defamation
lawsuit
,
also
in
New
York;
cases
arising
from
the
search
warrant
at
Mar-a-Lago;
and
any
criminal
referrals
the
January
6th
Commission
will
be
making
to
the
DOJ.
(I
am
sure
I
have
missed
some.)
Right
now,
Musk’s
biggest
legal
headache
appears
to
be
the
severance/not
severance
mishigas
he
has
gotten
himself
into
when
firing
or
rehiring
employees.

California
has
both
federal
and
state
WARN
acts
and
precisely
complying
with
both
can
make
your
head
explode
if
not
done
correctly.
I
won’t
bore
you
with
mind-numbing
details;
suffice
it
to
say
that
Musk
cannot
just
ignore
WARN
Act
requirements
and
any
other
severance
claims
included
in
the
Twitter
acquisition
agreement.
Having
been
involved
in
four
acquisitions
(both
on
the
acquirer
and
acquiree
side),
there’s
a
whole
laundry
list
of
things
to
be
done
within
certain
time
constraints
to
comply
with
WARN,
certain
head-counting,
location-counting,
and
providing
information
to
certain
agencies
as
to
who
stays
and
who
goes.

Does
anyone
think
it’s
a
little
ironic,
or
perhaps
more
than
just
a
little,
that
an
attorney
for
a
bunch
of
pissed-off
Twitter
employees
has

posted
his
demand
letter
to
Musk

on
behalf
of
those
employees
on
the
Twitter
website?

Clever
use
of
the
Twitter
platform.
Your
thoughts?
I
think
it’s
perfect.




old lady lawyer elderly woman grandmother grandma laptop computerJill
Switzer
has
been
an
active
member
of
the
State
Bar
of
California
for
over
40
years.
She
remembers
practicing
law
in
a
kinder,
gentler
time.
She’s
had
a
diverse
legal
career,
including
stints
as
a
deputy
district
attorney,
a
solo
practice,
and
several
senior
in-house
gigs.
She
now
mediates
full-time,
which
gives
her
the
opportunity
to
see
dinosaurs,
millennials,
and
those
in-between
interact

it’s
not
always
civil.
You
can
reach
her
by
email
at




oldladylawyer@gmail.com
.

One Of Biglaw’s Top Firms Enters The Bonus Races With A Match – Above the Law

Bonuses
keep
dropping
across
the
Biglaw
landscape,
and
associates
seem
to
be
enjoying
the
annual
holiday
cash
grab.
Earlier
this
week,
Simpson
Thacher
&
Barlett,
one
of
Biglaw’s
premier
firms,
got
in
on
the
action.

Simpson
Thacher
brought
home
$2,224,191,000
gross
revenue
last
year,
putting
it
in
13th
place
in
the
most
recent
Am
Law
100.
Now,
the
firm
is
coming
in
hot
with
a
bonus
match.

Here’s
the
STB
scale,
in
case
you’ve
forgotten
what
it
looks
like:

  • Class
    of
    2022:
    $15,000
    (pro-rated)
  • Class
    of
    2021:
    $20,000
  • Class
    of
    2020:
    $30,000
  • Class
    of
    2019:
    $57,500
  • Class
    of
    2018:
    $75,000
  • Class
    of
    2017:
    $90,000
  • Class
    of
    2016:
    $105,000
  • Class
    of
    2015:
    $115,000

Congratulations
on
your
bonuses,
Simpson
Thacher
associates!

Remember
everyone,
we
depend
on
your
tips
to
stay
on
top
of
important
bonus
updates,
so
when
your
firm
announces
or
matches,
please
text
us
(646-820-8477)
or email
us

(subject
line:
“[Firm
Name]
Matches”).
Please
include
the
memo
if
available.
You
can
take
a
photo
of
the
memo
and
send
it
via
text
or
email
if
you
don’t
want
to
forward
the
original
PDF
or
Word
file.

And
if
you’d
like
to
sign
up
for
ATL’s
Bonus
Alerts
(which
is
the
alert
list
we
also
use
for
salary
announcements),
please
scroll
down
and
enter
your
email
address
in
the
box
below
this
post.
If
you
previously
signed
up
for
the
bonus
alerts,
you
don’t
need
to
do
anything.
You’ll
receive
an
email
notification
within
minutes
of
each
bonus
announcement
that
we
publish.
Thanks
for
your
help!



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
.


Bonus Time

Enter
your
email
address
to
sign
up
for
ATL’s

Bonus
&
Salary
Increase
Alerts
.


Tips For Closing Out The Year As In-House Counsel – Above the Law

With
only
a
week
or
two
left
of
the
year,
it
can
be
tempting
to
get
as
much
done
as
possible
to
take
things
off
your
to-do
list
before
2023.
At
the
same
time,
as
business
comes
to
a
close,
there
are
a
few
things
you
may
want
to
consider
intentionally
doing
instead
that
could
better
set
you
up
for
success
next
year.


Gratitude

This
is
a
great
time
to
reflect
on
your
work
relationships

and
express
heartfelt
gratitude,
especially
to
those
who
help
make
your
life
easier
or
more
enjoyable.
‘Tis
the
season
after
all.
This
could
show
up
as
sending
thank
you
notes
or
treating
a
colleague
to
coffee
or
a
thoughtful
gift
or
sharing
positive
feedback
with
someone’s
manager.
Relationships
are
everything
in-house,
and
small
gestures
can
go
a
long
way.


Organizing

While
this
may
sound
terrible
to
some,
I
find
that
investing
time
in
organizing,
especially
when
it
comes
to
“systems”
I
use
often,
pays
off
in
time
and
frustration
saved
in
the
future.
For
example,
you
may
want
to
revisit
your
document
management
system
and
organize
your
frequently
used
files,
especially
if
you
have
used
them
like
a
“junk
drawer,”
saving
things
just
in
case
you
need
them
later.
Purge
them
of
duplicative
emails
and
rename
emails
for
easier
future
searches,
especially
if
their
subject
line
has
a
lot
of
“FW”
or
“RE”
in
them.
While
you’re
at
it,
you
may
want
to
move
documents
off
of
your
hard
drive
to
your
document
management
system
or
cloud-based
repository.

Other
systems
to
consider
organizing:
One
Note,
One
Drive,
Teams,
Dropbox,
Contacts.
Think
of
what
you
use
often
and
consider
how
you
can
optimizing
their
functions
to
better
your
workflow.


Reflection

The
end
of
the
year
is
a
good
time
to
check
in
with
yourself,
as
you
review
what
you
accomplished
at
work
or
otherwise.
From
a
performance
perspective,
how
would
you
rate
yourself?
What
impact
did
your
work
have?
What
did
you
learn?
How
did
you
develop?
Coming
up
with
a
“done”
list
can
help
you
determine
the
kind
of
projects
you
want
to
ask
for
next
year.
Besides
work
performance,
reflect
upon
your
satisfaction.
Did
you
enjoy
the
work?
Was
it
challenging?
Of
course,
don’t
forget
to
evaluate
how
you
are
feeling
mentally.
Were
you
bored?
Are
you
burnt
out?
Did
you
use
your
vacation?
While
it
is
difficult
to
make
time
to
reflect,
consider
it
as
an
investment
in
yourself.


Updating

If
you
don’t
already
have
a
regular
cadence,
consider
using
the
end
of
the
year
as
an
opportune
time
to
revise
your
resume,
update
your
LinkedIn
profile
or
spruce
up
your
bio.
This
is
a
bit
like
organizing.
You
don’t
want
to
wait
until
there
is
a
position
that
you’re
interested
in
because
you
may
be
swamped
with
work
and
unable
to
devote
as
much
time
or
attention
as
you
would
now.


Scheduling

Last,
but
not
least,
you
may
want
to
go
ahead
and
block
off
dates
in
2023
when
you
plan
on
using
vacation.
For
example,
for
my
own
mental
health,
I
like
to
schedule
at
least
one
day
quarterly
just
for
me
(and
not
family
vacation).
You
may
want
to
go
ahead
and
schedule
doctor
and
dentist
appointments,
prioritizing
your
preventative
care.
From
a
work
perspective,
because
I
also
travel
to
meet
clients
on
a
regular
cadence,
I
pencil
in
when
those
weeks
might
be
so
that
my
husband
won’t
also
book
work
travel
those
same
weeks.
You
may
want
to
include
conferences
that
you
know
you
want
to
attend.

Here’s
to
being
intentional
now
so
that
your
2023
self
may
thank
you
later.




Meyling Mey Ly OrtizMeyling
“Mey”
Ly
Ortiz
is
in-house
at
Toyota
Motor
North
America.
Her
passions
include
mentoring,
championing
belonging,
and
a
personal
blog:
TheMeybe.com.
At
home,
you
can
find
her
doing
her
best
to
be
a
“fun”
mom
to
a
toddler
and
preschooler
and
chasing
her
best
self
on
her
Peloton.
You
can
follow
her
on
LinkedIn
(
https://www.linkedin.com/in/meybe/).
And
you
knew
this
was
coming:
her
opinions
are
hers
alone.

The Parental Leave Rule: Give It A Fighting Chance – Above the Law

(Image
via
Getty)


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
Jennifer
Feld
and
Alexandra
Paez
to
our
pages.
Click



here


if
you’d
like
to
donate
to
MothersEsquire.

A
small
firm
practitioner
on
hospital
bed
rest
was
thrown
into
panic
after
her
motion
to
continue
a
trial
was
denied
without
hearing.

A
partner
at
a
large
firm
was
asked
by
opposing
counsel
to
relinquish
handling
a
case

for
which
she
had
specifically
been
credentialed

in
order
to
expedite
a
deposition
during
her
maternity
leave.

In-house
counsel
was
sanctioned
with
attorney’s
fees
on
an

ex
parte

motion
to
compel
late
discovery
responses
due
during
her
properly
noticed
maternity
leave.

Lead
counsel
for
a
major
sports
stadium
group
was
forced
to
file
motions
containing
increasingly
personal
information
after
his
request
for
a
paternity
leave
continuance
was
denied
three
times
and
even
then
only
after
a
widely
publicized
article
criticizing
the
judge’s
ruling.

In
many
other
cases,
COVID-19
administrative
orders
were
issued,
some
denying
requests
for
continuances
without
a
hearing.


Does
The
‘Parental
Leave
Rule’
Carry
Any
Weight
At
All?  

I
remember
the
day
clearly,
in
December
2019,
when
I
celebrated
the
ruling
by
the
Florida
Supreme
Court:
the
landmark
adoption
of
Florida
Rule
of
Judicial
Administration
2.570.
Leading
up
to
the
hearing
in
August
2019,
I
had
the
good
fortune
and
privilege
to
participate
in
the
many
hours
of
writing,
gathering
testimonials,
and
preparing
counterarguments
for
the
hearing.

Fla.
R.
Jud.
Admin.
2.570,
affectionately
referred
to
as
the
“Parental
Leave
Rule,”
states
that
the
“court

shall

grant
a
timely
motion
for
continuance”
in
the
absence
of
a
written
finding
by
the
court
that:
“(1)
another
party
would
be
substantially
prejudiced
by
the
requested
continuance;
or
(2)
the
requested
continuance
would
unreasonably
delay
an
emergency
or
time-sensitive
proceeding
or
matter”
(emphasis
added
).

Effective
as
of
January
1,
2020,
there
is
no
doubt
that
the
Parental
Leave
Rule
was
a
win.

Unfortunately,
two
and
a
half
months
after
its
implementation,
the
world
shut
down. 
Courts
closed,
Zoom
had
its
heyday,
trials
were
continued,
and
attorneys
worked
from
home.

Simply
put,
the
Parental
Leave
Rule
was
never
tested.
Until
now.
In
the
wake
of
the
onslaught
of
COVID-19
administrative
orders,
the
Parental
Leave
Rule
is
finally
being
put
to
the
test.
However,
given
the
aforementioned
anecdotes,
the
Parental
Leave
Rule
appears
to
have
come
up
wanting.

In
May
2021,
the
Florida
Association
for
Women
Lawyers
published
a
statement
regarding
their
concern
regarding
the
Parental
Leave
Rule
in
the
wake
of
the
new
COVID-19
administrative
orders.
“With
so
many
cases
waiting
in
the
wings
to
move
forward,
in
most
circumstances,
a
three-month
continuance
pursuant
to
Rule
2.570
should
not
prejudice
any
one
case
over
the
many
others
that
could
be
scheduled
in
its
place.
Particularly
where
there
is
no
objection
to
the
continuance
by
the
opposing
party,
the
courts
should
not
deprive
a
client
of
its
lead
counsel. 
The
adoption
of
Rule
2.570
was
an
important
step
forward
for
gender
equality
in
our
profession.
FAWL
encourages
the
judiciary
to
continue
this
path
forward,
even
under
the
unusual
circumstances
of
these
times.”

FAWL
goes
on
to
suggest
that
a
specific
note
to
the
court
should
be
submitted
along
with
proposed
case
management
orders.
“FAWL
suggests,
upon
agreement
of
the
parties,
that
a
date
up
to
three
months
out
is
proposed
in
the
case
management
report
with
a
note
to
the
court
that
the
date
outside
of
the
time
required
by
the
administrative
order
is
due
to
the
birth
or
adoption
of
a
child
and
that
a
motion
pursuant
to
Rule
2.570
will
be
filed
contemporaneously
with
the
case
management
report.”

Id.

The
problem
is
that
the
Parental
Leave
Rule
specifically
requires

a
motion

and
therefore

a
hearing
.
As
many
of
us
in
the
legal
field
know,
timing
is
everything.
I
just
casually
checked
hearing
dates
on
the
local
court
docket
and
found
that
they
are
booking
about
two
to
three
months
out.
I
decided
to
switch
gears
and
look
to
courts
on
Florida’s
east
coast

where
I
stumbled
upon
an
article
on
Law.com
called
“Fast
Burn:
Understaffed
South
Florida
Courts
are
Denying
Continuances,
Rocketing
Through
Dockets.”
Seems
like
an
attorney
requesting
a
hearing
would
not
have
much
luck
there
either.

If
a
rule
of
judicial
administration
requires
a
motion
and
hearing,
but
an
administrative
order/case
management
order
dictates
that
those
motions
will
likely
not
be
granted,
which
prevails?

The
authority
to
issue
administrative
orders
is
established
by
Article
V,
section
2(b)
of
the
Florida
Constitution.
The
chief
justice
of
the
Florida
Supreme
Court
has
unilateral
discretion
on
whether
to
recognize
an
emergency
that
justifies
entry
of
“such
order
or
orders
as
may
be
appropriate
to
suspend,
toll,
or
otherwise
grant
relief
from
time
deadlines.”
See
Fla.
R.
Jud.
Admin.
2.205(2)(B)(4),
(5).

According
to
the
most
recent
Supreme
Court
Order
No.
AOSC21-17,
chief
judges
“Must
direct
all
judges
within
their
circuits
to
strictly
comply
with
Florida
Rule
of
General
Practice
and
Judicial
Administration
2.545
(a),
(b),
and
(e),
which
respectively
require
judges
to
conclude
litigation

as
soon
as
it
is
reasonably
and
justly
possible
to
do
so
,
to
take
charge
of
all
cases
at
an
early
stage
and
control
the
process
of
the
case
thereafter
until
it
is
determined,
and
to
apply
a
firm
continuance
policy
allowing
continuances
only
for
good
cause
shown.”

Fla.
R.
Jud.
Admin.
2.545(e)
provides
the
general
policy
for
continuances:
“Continuances.
All
judges
shall
apply
a
firm
continuance
policy.
Continuances
should
be
few,
good
cause
should
be
required,
and
all
requests
should
be
heard
and
resolved
by
a
judge.
All
motions
for
continuance
shall
be
in
writing
unless
made
at
a
trial
and,
except
for
good
cause
shown,
shall
be
signed
by
the
party
requesting
the
continuance.
All
motions
for
continuance
in
priority
cases
shall
clearly
identify
such
priority
status
and
explain
what
effect
the
motion
will
have
on
the
progress
of
the
case.”

The
Parental
Leave
Rule
is
the

only

other
mention
of
continuances
in
the
Rules
of
Judicial
Administration.
The
rules
were
amended
in
2019
to
provide
this
special
amendment.
The
effect
of
the
promulgation
and
codification
of
the
Parental
Leave
Rule
is
that
it
presumes
good
cause.

The
trial
courts
are
misinterpreting
the
Supreme
Court’s
emergency
orders.
The
Supreme
Court
in
its
emergency
administrative
orders
provides
guidance
on
general
continuances
under
Rule
2.545
(e),
but
does
NOT
explicitly
limit
good
cause
continuances
under
Rule
2.570. 
Again,
parental
leave
is
obviously
a
good
cause
for
a
continuance,
because
the
Supreme
Court
itself
adopted
the
rule.

Without
an
opportunity
for
a
hearing,
and
with
the
courts
stifling
continuances,
the
Parental
Leave
Rule
has
not
even
been
given
a
fighting
chance.
We
encourage
the
courts
to
grant
good
cause
continuances,
as
they
comply
both
with
the
Supreme
Court
Order
No.
AOSC21-17
and
Fla.
R.
Jud.
Admin.
2.570.
It
is
also
the
right
thing
to
do.
Being
a
lawyer
is
a
noble
profession,
but
at
the
end
of
the
day,
it
is
just
that

a
profession.
Welcoming
a
child
into
this
world,
which
likely
only
happens
once
or
twice
in
a
career,
is
a
time
to
be
cherished.
The
toll
that
the
emergency
administrative
order
takes
on
the
mental
health
of
lawyers
who
are
balancing
learning
to
become
a
parent
while
juggling
often
too
many
cases
is
overwhelming.

The
need
to
move
cases
along
is
understandable,
and
I
am
sympathetic
to
judges
who
are
under
pressure
to
keep
their
dockets
moving.
However,
it
should
not
be
done
at
the
expense
of
the
mental
health
and
well-being
of
litigators.
I
do
not
know
of
a
single
litigator
who
is
not
overworked,
overburdened,
stretched
too
thin,
or
stressed
out.
Stress
is
one
of
the
most
significant
challenges
faced
by
Florida
attorneys,
particularly
in
the
post-COVID
practice
environment.
A
story
concerning
mental
illness
suffered
by
a
practicing
Florida
attorney
even
recently
appeared
in
the
national
news.
The
courts
must
not
lose
sight
of
the
fact
that
the
litigators
are
people
too,
with
families
and
children
that
sometimes
require
their
needs
to
be
put
first.
That
is
one
of
many
reasons
why
the
Parental
Leave
Rule
was
created.
That
is
sufficient
good
cause.

There
is
a
sufficient
basis
to
assert
that
courts
denying
continuances
based
on
parental
leave
without
a
hearing
is
in
violation
of
the
Florida
Parental
Leave
Rule,
provided
that
the
aforementioned
criteria
have
been
met.
However,
the
Florida
Supreme
Court
has
not
made
an
explicit
ruling
as
to
this
apparent
conflict.
Until
a
specific
ruling
has
been
made,
it
is
up
to
litigators
to
continue
fighting
for
their
right
to
parental
leave
and
the
trial
courts
to
enforce
Fla.
R.
Jud.
2.570.

In
short,
the
Parental
Leave
Rule
should
prevail
despite
the
COVID-19
administrative
orders,
and
courts
should
grant
these
continuances
for
good
cause.




Jennifer FeldJennifer
Feld
is
a
full-time
Florida
Supreme
Court
Certified
Circuit
Civil
mediator
at
Feld
Legal.
As
a
full
shareholder
at
a
firm
with
over
200
attorneys
in
Florida,
Jennifer
was
a
civil
litigator
for
over
a
decade.
Jennifer
is
an
advocate
in
and
out
of
the
courtroom.
Her
experiences
as
a
mother
and
a
trial
attorney
have
made
her
a
pioneer
for
maternity
leave
and
lactation
space
awareness.
As
a
devotee
to
community
service,
Jennifer
holds
a
position
on
Statewide
FAWL
(Florida
Association
for
Women
Lawyers)
as
the
Lactation
Task
Force
Chairperson.
She
sits
on
the
Boards
of
PJ
Library
and
TJFS,
which
provides
a
community-wide
food
bank,
financial
and
social
wellness
services
to
those
in
need.



Alexandra
Paez
serves
as
Of
Counsel
at
Kubicki
Draper.
She
graduated
cum
laude
from
the
University
of
Florida,
where
she
earned
her
Bachelor
of
Arts
in
Political
Science
and
History.
She
earned
her
Juris
Doctor
from
the
University
of
Florida
Levin
College
of
Law,
graduating
cum
laude.
Alexandra
practices
in
the
areas
of
bad
faith
and
claims
administration
defense,
automobile
negligence
and
premises
liability.

Law Firm Sues Associates For Not Billing Enough – Above the Law

If
you’re
a
frustrated
M&A
associate
watching
your
bonus
slip
away
because
the
economic
downturn
robbed
you
of
precious
billable
hours,
take
heart
that’s
all
you’re
losing!

Out
in
North
Dakota,
the
law
firm
of
Larson
Latham
Huettl
sent
bills
to
two
former
associates
alleging
“overpayment”
when
the
associates
didn’t
bill
enough.
The
firm
took
both
to
court
and
won

both
cases
are
on
appeal
(which
you
can
check
out

here

and

here
).

The
key
language
from
the
firm’s
employment
agreement
reads:


Hours
Billed
Discrepancy
.
In
the
event
that
Associate
bills
out
less
than
the
base
quota
for
a
three
month
[sic]
period,
the
Associate’s
salary
will
be
reduced
appropriately
at
the
discretion
of
LLH
in
order
to
make
up
for
any
discrepancy.
Any
discrepancy
where
the
actual
hours
billed
is
less
than
the
base
hours
required
will
be
considered
to
be
a
debt
owed
by
Associate
to
LLH
at
the
end
of
the
calendar
year
or
at
the
termination
of
employment.

There
are
factual
and
legal
disputes

which
is
why
these
are
on
appeal!

not
the
least
of
which
is
the
fact
that
this
agreement
was
slapped
in
front
of
the
lawyers
in
March
2020.
I
don’t
know
if
you
all
remember
March
2020,
but

some
stuff
went
down
.
Stuff
that
(a)
made
associates
terrified
of
losing
their
jobs,
and
(b)
made
partners
eager
to
find
new
revenue
streams
to
deal
in
the
face
of
a
drastic
drop
in
work.

But
that’s
all
for
the
courts
to
work
out.
For
our
purposes,
let’s
just
take
this
language
in
a
vacuum.

And…

what
in
the
actual
fuck?

This
is
some
real
“owe
my
soul
to
the
company
store”
nonsense.
In
a
functional
society,
the
remedy
for
not
keeping
your
hours
up
is
getting
fired.
If
folks
aren’t
bringing
money
into
the
firm,
the
job
of
a
boss
is
to
cut
them
loose
or
accept
it.
But
under
the
terms
of
this
agreement,
the
firm
is
actually
best
off
keeping
people
on
the
payroll,
knowing
that
the
partners
get
paid
either
way.

During
a
pandemic
slowdown,
hiring
associates
to

not

work
and
then
billing
them
for
their
“debt”
later
would
be
a
reasonably
lucrative
business
model!

But,
wow,
it’s
an
objectively
awful
one.


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
.

Insider-Trader Chooses Friendship Over Freedom

As
we
discussed
back
in
January,
it’s
good
to
have
friends
who
know
things.
In
particular,
it’s
good
to
have
friends
who
know
material
non-public
things
about
publicly-traded
companies
thanks
to
their
board
member
cousins
and
parents
when
you’re
running
a
hedge
fund,
like
Kris
Bortnovsky
does.
At
least,
it’s
good
until
the
Feds
figure
the
whole
thing
out
and
that
friend
fingers
you,
as
Bortnovsky’s,
David
Schottenstein,

did
.

But
do
you
know
what’s
even
better?
When
that
friend-turned-foe

decides

prison
will
be
less
deleterious
to
his
fragile
mental
health
than
having
to
make
good
on
turning
on
his
buddy.

Schottenstein
last
week
withdrew
from
his
cooperation
agreement,
saying
psychologists
and
a
therapist
advised
him
that
testifying
against
his
friend
Shapiro
at
his
May
2023
trial
would
“exacerbate”
his
mental
health
issues….
Prosecutors
left
open
the
possibility
of
renewing
the
charges,
saying
their
investigation
was
ongoing.

This
also
means
that
the
aforementioned
Ryan
Shapiro,
founder
of
inmate
transfer
service
provider
JPay,
won’t
have
the
opportunity
to
do
some
on-the-yard
testing
of
his
product,
at
least
for
now.


U.S.
Drops
Insider
Trading
Case
Against
Two
Florida
Men

[Reuters
via
U.S.
News]


For
more
of
the
latest
in
litigation,
regulation,
deals
and
financial
services
trends,

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up

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Morning Docket: 12.08.22 – Above the Law

Amy
Wax

*
Enrollment
in
Amy
Wax’s
classes
is
dropping.
Haha
Bozo.
[The
DP
]

*
What?
Companies
may
have
to
actually
moderate
the
content
they
host?
[Yahoo!]

*
Considering
a
state
job?
You
might
not
be
as
able
to
keep
up
on
those
new
dancing
trends…
[CBS
News
]

*
The
Swiftie
to
Sherman
Act
enforcer
pipeline
is
a
strange
one.
[Business
Insider
]



Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s
.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor
,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at cwilliams@abovethelaw.com and
by
tweet
at @WritesForRent.

Conservatives On Supreme Court Very Worried That OTHER Courts Might Be Too Political — See Also

Maybe We Will Have A 2024 Election: Sam Alito fears some supreme court somewhere might become too political. Meanwhile, Justice Ketanji Brown Jackson distilled today’s independent state legislature case down to various versions of this question and Alito’s crew seemed to have no answer.

Paragraph One Of The Complaint: When Elon Musk lets it publicly leak through his press agent — currently played by Matt Taibbi — that Twitter fired an in-house lawyer for trying to prevent the company from stepping face first into potential legal trouble… that’s going to complicate his defenses.

Taking It Up A Notch: After some questionable legal moves at trial, Amber Heard is bringing in Biglaw for her appeal.

Bonus Watch: Kramer Levin. Weil Gotshal.

The post Conservatives On Supreme Court Very Worried That OTHER Courts Might Be Too Political — See Also appeared first on Above the Law.