Category: News Feeds

The birth of a baby — yes, even a famous one — should be a cause for celebration and positivity. There’s simply no room for hatred, racism or ill-intent. But as Prince Harry and Meghan Markle, the Duke and Duchess of Sussex, are all too aware, people can be trash.

The couple recently announced the birth of their daughter, Lilibet “Lili” Diana Mountbatten-Windsor. And they’ve received comments that are… less than congratulatory in response. One of the objectionable “wishes” the royals have received is from family law barrister, Joanna Toch — and she’s been suspended from her law firm as a result.

So what exactly transpired? In response to journalist Julie Burchill’s also incredibly offensive Tweet (“What a missed opportunity. They could have called it Georgina Floydina!?”), Toch responded with, “No Doria? Don’t black names matter?” (Doria is Markle’s mother’s name.)

According to reporting by Legal Cheek, Toch has been suspended “pending an internal review” by Family Law Cafe (FLC). The firm went on to note the Tweet was “offensive, unacceptable and highly contradictory to the inclusive manner in which FLC has always and will continue to work with members of all communities in managing the challenges of matrimonial and family dispute.”

Toch has indicated she will cooperate with the investigation, and has apologized for the unkind words:

“I am very sorry for the comment and what I saw as a joke. I’ve fought during my professional life against racism which is abhorrent. I’m not a judge and I have children of colour and I apologise unreservedly.”

She also appears to have deleted her Twitter account.

It’s unclear what other consequences Toch may face, but the Bar Standards Board has issues social media guidance saying that comments that “demean or insult are likely to diminish public trust and confidence in the profession.”

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Kathryn 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).

There’s no question that data and analytics have forever changed the way we practice law. The days when we fished around for anecdotal information to make major case and strategy decisions are long gone. Technology has put vast mountains of data at our fingertips, and Lex Machina has been leading the charge when it comes to using data analytics to turn that data into winning case assessments and strategy.

Now, Lex Machina is raising the data bar even higher with Quick Tools, the easiest way to get instant access to Lex Machina’s underlying data and the most comprehensive analytics on the market, specifically curated to give you the information you need, right when you need it.

When you need an answer now, you need Quick Tools.

What is Quick Tools?

Here’s a scenario you probably know all too well: your client calls you up with an obscure legal question out of the blue (probably late on a Friday afternoon) and wants an answer immediately, even though it’s not related to your current matter or possibly even to your area of expertise. In the past, you probably found some way to put them off with an answer that wasn’t really satisfactory to anyone involved. Then you started making calls or roaming the halls to question people who might know, followed by a stressful weekend of trying to prepare a solid answer for your client on Monday. But what if there was actually a way to find the answer and relay it in a matter of minutes?

Quick Tools is that way. It puts a universe of highly curated, in-depth litigation strategy information at your fingertips – information it might otherwise take you hours to cobble together. You get to demonstrate expertise to your clients while also having the confidence that you found the right answer quickly.

Of course, the phone call scenario is just one example of how Quick Tools is changing the way lawyers access information. Quick Tools gives you immediate access to data and intelligence that you won’t find anywhere else, via nine specific default tools that have been built based on customer feedback that Lex Machina has gathered over the years:

• COVID-19 Impact Analyzer
• Parties Comparator
• Courts & Judges Comparator
• Law Firms Comparator
• Early Case Assessor
• Motion Kickstarter
• Attorney Team Analyzer
• Patent Portfolio Evaluator
• Expert Witness Explorer

How It Works

Your landing page for Quick Tools exists as a tab within the bigger Lex Machina platform, and on it you’ll see the full collection of legal analytics tools that have been created to give you instant access to information in nine discrete areas.

Quick Tools is a more curated experience than you’ll get in the main Lex Machina platform, though it’s backed up by the same rich data, which is still available in the other tabs across the top of your screen. You can also link to the data in other areas of Lex Machina through the information displayed in Quick Tools. These tools are exclusive to Lex Machina – you won’t find this kind of curated analytics experience in any other product.

When you click into an individual tool, you’re guided through fields where you input basic information to get to the data you want, which is then produced in a report that can be viewed on a single scrollable page and easily shared. The comprehensive report is made up of analytics that typically take more than one search to replicate in the main Lex Machina platform, but you get it in a matter of minutes.

A Closer Look

Each of the nine Quick Tools is designed to give you quick access to curated information in a very specific area.

For example, if your client was sued in a contract case in Vermont and was wondering if they might fare better in California courts, you can go into the Courts & Judges Comparator and answer exactly that question in under two minutes.

Almost instantly, Quick Tools will show you the different contract case loads between your chosen jurisdictions, as well as how long those cases tend to last, what the typical damages are, and much more. If you have specific judges in mind within a given jurisdiction, you can compare on that level, too. With Quick Tools, you have data at your fingertips to make quick, informed decisions about the best way to proceed with cases from the instant they’re initially filed.

Quick Tools is also a powerful tool for onboarding new clients and matters. The Early Case Assessor is a great place to get valuable data that can help you understand what lies ahead, even if you’re not sure where to start with a new engagement. Just start by inputting the basic information about the opposing party like party name, opposing counsel, and type of case.

What you get in return is a comprehensive overview of the party’s history in similar matters – the most recent cases of the same type for that party, opposing counsel’s history representing that party, how often the cases reached trial, and much more.

While no one can ever guarantee litigation outcomes with complete certainty, the Early Case Assessor gives you a good, immediate snapshot of likely outcomes when your client is served and you get that dreaded Friday afternoon phone call asking you to predict the future. Quick Tools offers valuable data that’s integral to decision-making at all stages of your case, from inception through strategic decisions like motion practice and expert witnesses. 

The COVID-19 Impact Analyzer even gives you insight into which areas of law were most heavily impacted by the upheaval of 2020.

Whether you’re an in-house lawyer or outside counsel, you’ll find a Quick Tool that offers insight in some area of your practice that’s going to make your work easier, whether that’s assessing internal threat levels and litigation risks or deciding whether it’s worth it to bring a particular motion on your client’s behalf. If you’re less involved in day-to-day legal strategy, Quick Tools is designed to help you, too – when you’re not in the weeds on daily decision-making, Quick Tools is where you want to go to get up to speed quickly. If you spend all day every day litigating over patents, Quick Tools will curate the in-depth patent data you used to spend time amassing from multiple sources.

Lex Machina was already a powerful weapon to have in your arsenal, and Quick Tools makes it even better. Instant access to curated data that you can refine and immediately share – it’s hard to imagine a more useful tool for today’s busy lawyer.

When it comes to reopening plans in the wake of the COVID-19 pandemic, it looks like the majority of Biglaw firms are going with a phased-in approach to their return to the office. Flexibility remains a priority at most firms, and the only thing up in the air is the number of days employees will have to be physically present in the office. Now that a bit of uniformity seems to have been established in the market, let’s check in with another firm to see what they’ve got planned.

Arent Fox — ranked No. 107 in the most recent Am Law 200, with a 2020 gross revenue of $333,600,000 — recently announced its own phased-in return to the office. “The goal is for Arent Fox to be fully open as of September—after Labor Day,” said managing partner Cristina Carvalho in an interview with the American Lawyer. On July 6, all of the firm’s U.S offices will be open, and according to Carvalho, employees will likely come in once a week, and eventually, work their way up to coming in twice a week. While it’s expected that all personnel will maintain a “routine physical presence” in the office when the firm has fully reopened, flexibility is still on the table.

Carvalho said Arent Fox isn’t planning to define for staff and lawyers how many days they must spend in the office. Instead, she is confident that colleagues will find a mix that suits them, both personally and professionally.

“It’s not my intention to micromanage and say which day people are going to be in the office. Ultimately, we all understand what we need to do and, ultimately, we’re all here in the business of servicing our clients. Everybody at the firm has good judgment. And everyone will keep that ultimate goal in mind,” said Carvalho, who added that some staff and practice areas with responsibilities will likely find they need to spend more time in the office, but that the decision will be left to the individual and their managers.

Calvalho noted that flexibility must be a two-way street. “The firm will provide for a flexible schedule for everyone but, lawyers and the staff should also be flexible,” she said. “Sometimes there’s emergency situations or impromptu meetings or client demands where colleagues might need to make unscheduled trips in. That’s the nature of the business.”

What has your firm announced as far as a reopening plan is concerned? The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to work.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.

Arent Fox and Baker McKenzie Emphasize Individual Responsibility in Return to Office Policies [American Lawyer]

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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.

As Biglaw firms are plotting out their return to physical office plans, it’s clear they’re taking different paths. How many — if any — days will be required is a hot button issue, but so is the question of who gets to take advantage of flexibility. In determining their post-COVID plans, Stroock & Stroock & Lavan has decided to include their admin staff as beneficiaries of hybrid work.

In a Law.com article, Alan Klinger, firm co-managing partner made clear that breaking down “class barriers” between attorneys and staff was part of the rationale for the decision:

“Our admin side of the firm worked productively during the pandemic as well, so we aren’t taking it on blind faith,” Alan Klinger, co-managing partner and chair of government affairs and regulatory support, said of the decision to allow everyone to have some remote days. “We are doing this in part because we are trying to break down the class barriers that exist in many organizations, and we have come to believe that if we treat people professionally and fairly they will respond in kind.”

The other co-managing partner, Jeff Keitelman, echoed that sentiment:

“We wanted to do our best to solve for the problems that people have: child care, school schedules and the like. Staff are people too. We wanted everyone to have the benefit,” Keitelman said.

To make this work, the firm has paired up support staff so that one half of the duo can provide in-person coverage at all times:

“The nature of the work can be done in part remotely,” Klinger said. “We have secretaries working in pairs for larger numbers of people. We will make sure someone is physically in the office each day, and if something happens, like an illness, we expect the other side of the pair to cooperate.”

At Stroock they seem aware that this level of flexibility isn’t something afforded staff at other firms, but they seem determined to make it work:

“We aren’t privy to the nuances of other firms, but we know what works at ours. We took the information we had, and we think it is going to work just fine,” Keitelman said.

So flexible work arrangement for all employees at Stroock — seems like a pretty good plan to me.

What has your firm announced as far as a reopening plan is concerned? The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to work.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.

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Kathryn 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).

To mark his first 100 days in office, President Joe Biden implored Congress to act on immigration reform. Immigration, he said, has always been essential to America, and it’s time we ended the exhausting war over it. “For more than 30 years, politicians have talked about immigration reform and we’ve done nothing about it,” he said. “It’s time to fix it.” I agree wholeheartedly. Now is the time to be bold, to make lasting and impactful changes — especially to our employment-based immigration system. Let’s consider a complete overhaul and introduce a merit-based system to replace the broken one we have now.

It’s not a new concept. In 2013, the Senate passed S.744, a comprehensive immigration reform measure. It was introduced in the House but didn’t get far. It sought to create a merit-based system for employment-based green cards, and in my opinion, was a good starting point. It was a reasonable foundation for jump-starting a new debate to finally bring about needed reform. It awarded points for skills, work experience, education, and more. It would likely be more transparent than the current system that relies on a convoluted process of proving that there are no other suitable American workers for the job. And will likely be more equitable than the current system — only if created well. It would be less burdensome, costly, and stressful for all parties involved, including the government agencies that adjudicate this process.

Employers seeking to sponsor a noncitizen employee for a green card must first test the labor market and prove a qualified U.S. worker isn’t available for the position. Known as Permanent Labor Certification applications (or PERM), the process is long, exhausting, and expensive. 

From beginning to end, it can take 18 months — often longer. Only after the labor market has been tested can the employer file a green card sponsorship application with the U.S. Citizenship and Immigration Services on the worker’s behalf — which has its own costs, tediousness, and often lengthy time frames. Sometimes expedited fees can be paid, but not always.

But before employers can even test the market, they must analyze the position, the duties, and the skills required for that job. The Department of Labor (DOL), which oversees PERMs, has a list of job codes for almost any job you can imagine — from teachers to doctors to computer programmers. But not all. Oddly enough, there’s no code for one of the hottest jobs on earth, data analyst. Those codes determine the salary, duties, and other factors associated with that job. Get the code wrong and the application goes up in smoke. This creates a problem for jobs that don’t have a nicely fitting cookie cutter code, such as a data analyst.

Employers test the market by advertising available positions and sifting through the resulting job applications. If someone even minimally qualified is found, the application process ends, and the employer must either hire that person or stop the process and restart it in the future.

Part of the PERM process requires an application to the DOL to seek a wage level for the job, otherwise known as the “prevailing wage determination” (PWD). There are four levels of wages, entry level or level one to very experienced or level four. Before the pandemic, such a request took four to six months.

In May 2021, the DOL introduced an updated version of Form 9141, which is used to make this request. The change came with little notice and no opportunity to comment on the form. It originated with the Trump administration, but the Biden administration is allowing it to take effect. In essence, the updated form will collect detailed additional information about the position that was not previously required. DOL said it would help streamline the process by collecting more information. Practically, I think it will make the process more difficult — both in preparation by employers and lawyers and adjudication by the agency.

So, what’s the solution here?

President Biden and this administration are eager to overhaul the immigration system. The American public is ready for change. Reform brings the opportunity to implement new concepts and programs that have the promise to be more effective and beneficial for the U.S. economy. The current system is a burden on businesses, individuals, and the agencies alike. These apparently small changes will make the burden significantly worse.

Therefore, in my opinion, the administration should set aside this new form and allow the current process to continue while a complete system overhaul is considered. A merit-based immigration system, created properly, can be good for the country. Canada and Australia have such systems. We can learn from them and establish our own to fit.

I suggest that Congress and the administration revive the merit-based provisions of Senate Bill S.744 and work toward real reform, rather than attempt piecemeal “improvements” that do exactly the opposite. Make immigration reform benefit the United States and its economy at a time it is most needed.

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Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

Ed. note: This column originally appeared on Original Jurisdiction, the latest Substack publication from David Lat. You can learn more about Original Jurisdiction on its About page, and you can subscribe through this signup page.

Welcome to the latest installment of Notice and Comment. As previously explained, this feature is an opportunity for me to hear from you, the subscribers of Original Jurisdiction, and for you to discuss interesting and important topics amongst yourselves, in the reader comments to each post. (Original Jurisdiction hosts reader comments, as Above the Law did in the early days, but you must subscribe in order to comment.)

I’m sharing an email I recently received from a senior associate at a Biglaw firm. This individual encouraged me to publish it, in the hope of starting a conversation, but asked to remain anonymous.

What do you think? Is this person an insightful truth-teller, or an entitled whiner? Please sound off, in the comments.

And if you have some thoughts of your own on a current topic that you’d like me to consider for Notice and Comment fodder in the future, please email me: davidlat@substack.com. Thanks!

Before we get into this week’s column, a quick programming note. I am very interested in hearing about how other IP professionals and law students navigated the COVID-19 pandemic, so I welcome emails sharing any experiences that readers are willing to discuss. I also invite IP associates and law students interested in IP practice to email me for tips on how to succeed in the law firm environment as we, thankfully, enter the post-COVID era. Now back to my interview on a timely and fascinating topic.

This week, we continue my written interview with Jeremy S. Goldman, a partner at Frankfurt, Kurnit Klein + Selz PC. Please see below for Jeremy’s answer to my last question, focused on the types of legal issues raised by Non-Fungible Token (NFT) commercial activity.

As usual, I have added some brief commentary to Jeremy’s answer below but have otherwise presented his answer as he provided it.

GK: What legal issues do NFTs raise?

JG: Not surprisingly, the law has not yet caught up with NFTs. While federal and state regulators have issued guidance and brought enforcement actions in connection with cryptocurrency projects, I’m not aware of any NFT-specific laws, regulations, or enforcement actions yet on the books.

That said, NFTs raise a host of legal issues. Here are a few of the top ones:

Intellectual Property. At a fundamental level, it is important to understand that an NFT is not the same thing as the digital object with which the NFT is associated. When you buy an NFT, you own the digital token, but you do not own the digital object, much less any copyright or other interest in the digital object. That default rule may be changed by the NFT’s terms, but absent those terms, you are just acquiring a token — like a receipt — that points to the object.

Once you get past that distinction, the IP issues tend to fall into two categories: inbound rights and outbound rights. Inbound, the question is whether you have all the rights that are necessary and prudent to mint an NFT associated with the digital object. Is the work original, or does it incorporate third-party material arguably protected by copyright, trademark, or right of publicity? If so, do you need a license or is there a fair use/First Amendment argument? If you are not the individual who created the work, do you have the necessary work-for-hire, transfer, or license to mint and sell the NFT?

Outbound, you are asking what IP rights — if any — are being granted to the NFT owners. While NFTs typically authorize no more than personal use of the IP and the right to market and sell the NFT, some go further, allowing commercial use and even granting exclusive rights.

Then there’s the issue of unauthorized NFTs: what happens when someone mints and sells an NFT associated with another person’s work without permission? DC Comics circulated a letter to its freelancers asking them not to mint NFTs of their superhero art, and the Basquiat estate shut down an unauthorized NFT auction. Given the immutability of the blockchain, IP enforcement raises some vexing questions in this field.

Financial — Whenever you are dealing with blockchain-based projects, you have to consider securities, banking, tax, and other finance-related issues. Is your NFT project creating or facilitating an “investment contract” and thus triggering securities law requirements? A class action lawsuit recently filed against NBA Top Shot claims just that. Is your platform subject to anti-money laundering (AML) and know your customer (KYC) requirements? What are the tax implications of your enterprise? Some NFT projects are riskier than others, and it’s very important to identify, address, and mitigate these risks upfront.

Consumer — It is important that you communicate to consumers what they are buying and what they are not buying when they purchase an NFT. This involves publishing clear and conspicuous disclosures, and understanding any laws or regulations that may apply to the NFT offer. It is also vital to structure the user experience in a way that will maximize the likelihood that a court will enforce whatever terms and conditions you wish to govern the transaction.  This can get tricky given the decentralized nature of blockchain transactions, where intermediaries are not required, and tokens may be sold on the secondary market.

GK: As we can see from Jeremy’s response, the legal issues around NFTs are myriad and complex. What does that mean for IP lawyers who may not be practicing in the area yet? At a minimum, developing as deep an awareness as possible around potential issues that their clients may face. Along with developing the conviction to warn clients to avoid the temptation to rush headlong into the NFT market before developing a holistic understanding of all the legal issues involved. We all know that what follows market interest in a particular area — and NFTs surely qualify on that front — is often the twin challenges of regulation and litigation, with some of that litigation surely to have some kind of IP component. As a result, the more initiative IP lawyers show in educating themselves on the NFT phenomenon, the better. Hopefully, this series of columns and Jeremy’s insights will help advance that educational experience for this readership.

My thanks to Jeremy for the insights and cooperation, and I wish him the best of luck with continuing to build his practice in this fascinating area. It is always great to see lawyers jump at the opportunity to service others with respect to a fast-developing area of IP law. 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.

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.

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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.

* R. Kelly’s attorneys are requesting to withdraw as his counsel and say it is “impossible” to properly represent him. Bet the lawyers hope they aren’t “trapped” in the courtroom… [Fox News]

* A prominent West Virginia attorney passed away this week following a car crash. [Metro News]

* The Department of Justice says it will defend former president Trump in a private defamation lawsuit. [Forbes]

* Stormy Daniels says her attorneys are cooperating with investigators looking into the operations of the Trump Organization. [Hill]

* A Boca Raton attorney was allegedly intoxicated around four times above the legal limit when she was involved in a car crash. Wild even by Florida standards… [Boca News Now]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According data collected as part of the Am Law 200 ranking, how many firms in the Second Hundred, i.e., #101-200, posted double-digit increases in gross revenue in 2020?

Hint: The Top 100 fared better, with 21 Biglaw firms hitting that threshold.

See the answer on the next page.