Category: News Feeds

The first presidential debate is about to start, and it strikes me that we usually put together a legally themed drinking game for these events. Honestly, this was a slog to get up the energy for this one. With everything that’s happened in the last every single minute of 2020, it almost seemed too depressing to put one of these together.

But we shall persevere because this is our job here at Above the Law. Moreover, as soon as I did take a few seconds to think about it, this is going to be one of those rare instances where the legal system is likely to garner significant attention and after historically quipping that we’d be lucky if they even mention the Supreme Court, it might well be the first question this time.

So grab a nice beer (or whatever) from the comfort of your own locked down home, take some adderall as a performance-enhancing debate drug, and let’s do this thing.

All references require a sip unless otherwise noted.

“Supreme Court”: Just limiting this to when they say the words could well be enough to put you out before the third question. Sip, um, judiciously.

Mentioning Roberts, Gorsuch, or Kavanaugh: Obviously there will be some mention of Justice Ginsburg, the legal lioness whose passing put us in this mess, but will anyone else get mentioned? The Chief, by default, is more likely than most to get a shout. Gorsuch, whose appointment violated the very rule Republicans demand the country follow today, is another obvious contender. Justice Keggy Assaultington is also a favorite to get namechecked.

Mentioning any other of the remaining Supreme Court justices (finish your drink): An Elena Kagan reference is not coming through that door, but just in case.

“Merrick Garland”: (Take your drink, put it aside, promise not to touch it until after the election, abruptly change your mind and down it all immediately because it must be finished before the election.)

Court packing: It’s been asked about already this cycle, and liberals are asking for it. Could Biden get asked about it point-blank or could Trump try to bring it up to insinuate that Biden is controlled by the pundits?

Candidate touts legal expertise: Biden mentioning his law degree or his tenure on the Judiciary Committee. Trump claiming that since Tiffany went to Georgetown, “a lot of people are saying” he’s as qualified as any other lawyer.

Specific cases from this term: DACA, the tax cases (probably now eclipsed by the release of the returns but whatever), trans rights… all options.

ACA as a subject of litigation: On a healthcare question, this kind of alcohol poisoning could land you in the ICU with no way to pay your bills because of Amy Coney Barrett. But if the ACA is mentioned in the context of the Supreme Court, it’s worth a sip.

Roe: Democrats are working hard to minimize this as a theme of the upcoming Supreme Court fight, which is interesting because reproductive rights poll incredibly well across the country. Apparently not in states they see as battlegrounds though. Still, between Chris Wallace’s moderation and Trump’s adoration for his base at the expense of actual suburban swing voters,one imagines the decision will receive air time.

Michael Flynn: Flynn’s hearing today was bonkers. Is Trump going to clutch Flynn’s admittedly unlawful tunic to his breast? For that matter, take a sip the first time any of Trump’s now convicted fellow travelers gets namechecked: Paul Manafort, Michael Cohen, Roger Stone, etc.

Pardons: Piggybacking off the last one, will someone ask him point blank if he plans to pardon a sophisticated, well-represented defendant who swore under oath that he committed a crime… twice. Or will he get a softball about helping Kim Kardashian pardon some people who then didn’t deserve to be turned into political props? Will he pardon himself for tax evasion?

Anyone asks, “Hey, where’s Kanye?”: Double if Trump declares that it’s “very unfair” how state election boards are treating West.

Crime Bill: Biden’s involvement with the infamous Crime Bill was even more pronounced than Hillary’s. It’s not shocking to think Trump tries to use it to posture himself as the one commuting the sentences of the people Biden helped harm with that law.

Emoluments: I’ve looked back at a lot of Biden debate performances over the years and he has a history of dredging up talking points that have gone out of the public consciousness. It’s like when grandpa talks about the Brooklyn Dodgers out of nowhere. Remember 2016, when this was the Trump crime everyone talked about? We were all so young then.

Florida 2000: Since Trump is being conned into thinking this Supreme Court pick is about avoiding election chaos and it feeds his “don’t trust elections” messaging this moment might sneak its way into the discussion.

A DOJ case without any details: Bill Barr got caught talking about a case involving 1,700 fake ballots that never happened. Then he gave Trump the go ahead to leak about a Pennsylvania discarded ballot case that seems bad but ultimately inconsequential. What case of dubious credibility comes up next?

Anarchy (finish your drink and put on Howling at the Moon by the Ramones because there’s “no law, no law anymore”): Any reference to anarchy or anarchist jurisdiction — the fever dream of the Barr Justice Department designed to strip New York, Portland, and Seattle of public school funds deserves some recognition. Double shot if this is met with a question about how any of this jives with states’ rights.

FBI: James Comey was fired, Trump still complains about former director Bob Mueller, and he’s reportedly considering firing Christopher Wray. If anything about the FBI is mentioned, up to and including the whereabouts of Samantha Mulder you should drink.

Alan Dershowitz (take off everything but your underwear and drink): We’ll see if Trump’s favorite legal scholar is cited approvingly.

Amendments (see description): Shots corresponding with the number of the amendment when mentioned. In other words, one shot for the First Amendment, Two shots for the Second Amendment, etc. God help us if Trump muses about Biden’s health and the Twenty-Fifth.

Enjoy your Twenty-First Amendment rights tonight!

Joe 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.

Justice Ginsburg’s loss is a blow to the profession in almost every dimension. A legendary advocate, a long-tenured Supreme Court justice, and a genuine legal celebrity who provided a familiar touchstone with people mostly closed off from the law and its role in society. Joe chats with former Acting Solicitor General Neal Katyal about arguing before Justice Ginsburg and his experience clerking at the Supreme Court while she was a new justice. Joe and Kathryn also discuss the impact Justice Ginsburg had and the track records of her likely replacements (which was promptly narrowed to Amy Coney Barrett after recording).

A Top Tier International Law Firm in NYC is seeking a senior associate with at least five years of corporate practice experience to join the firm’s General Practice Group.

This is a rare opportunity as this law firm does not usually seek lateral associates. The winning associate will have at least 4 to 6 years of experience advising clients on structuring, documenting, negotiation and executing M&A transactions, including domestic and cross-border public and private acquisitions, business combinations, mergers, divestitures or equity investments.

Must also have experience advising clients on periodic reports under the SEC Act of 1934 and stock exchange listing requirements, compliance with Regulation 13D, etc. This is a business development position as well as train junior and mid-level associates. Must be admitted to practice law in NY.

To be considered, please send your resume to jobs@kinneyrecruiting.com or apply here.

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

According to a new Savills study, by what percentage are leases down in the law firm sector in New York City for the first half of 2020 compared with the same time in 2019?

Hint: “Anecdotally, it appears that fewer transactions are starting unless they have to (such as expiring leases),” the report reads, “and many firms are considering short-term extensions rather than making long-term commitments while awaiting clarity on the full impacts of the Covid-19 crisis.”

See the answer on the next page.

One of the ongoing debates in the patent litigation world relates to whether the deck is too stacked against patentees in this age of Alice and IPRs. What makes it a debate is that there are valid arguments on both sides, vociferously voiced in the media and the halls of Congress by stakeholders pressing their respective positions. At the same time, there is a slower-moving, but very important for both patent owners and accused infringers, real-time game of chess being played out in the various judicial fora entertaining patent disputes. The combatants are often sophisticated (and oftentimes well-funded) nonpracticing entities going up against Silicon Valley stalwarts, themselves practiced in the art of modern patent defense. And the battlefield frequently extends across district courts and the USPTO, with each side looking to press every advantage in order to prevail.

None of the above is news to this readership. That said, it is worth focusing on a relatively recent development in modern patent litigation that has quickly become a hot-button issue — as well as the subject of a recently filed lawsuit pitting four tech giants (Apple, Google, Cisco, and Intel) against the USPTO. For a great laying out of the issues at play I commend Professor (and former interviewee on these pages) Saurabh Vishnubhakat’s Patently-O piece. As he puts it, the plaintiffs are challenging the recent USPTO policy that “allows the PTAB to deny institution of an inter partes review petition based on how far a parallel U.S. district court proceeding on the same patent has already gone.” Also known as the “NHK-Fintiv rule” after the cases that established the policy, since it was articulated patent owners have argued successfully to the PTAB that “it would be best to conserve USPTO resources rather than undertake a largely or entirely duplicative review.”

While I urge consideration of Vishnubhakat’s analysis of the merits of the new lawsuit by readers, the purpose of this column is not to offer thoughts on whether the NHK-Fintiv rule is a good or bad one. Instead, I think it is interesting to focus on why the rule has met such immediate resistance from the plaintiffs in the USPTO lawsuit, while also taking a look at a recent PTAB decision applying the rule to the disfavor of one of the plaintiffs.

First, why the rule is an immediate problem for alleged infringers. Simply put, there is no doubt that having an IPR pathway open is critical to modern patent defense strategies. One of the main benefits to IPRs to petitioners is the potential for quicker resolution of the patent validity questions at issue. And in cases where an IPR is filed in response to a district court lawsuit, a stay request to the district court can — if granted — confer even more benefits to the defense. Patentees hoping to counter that result, however, have found a savior in the form of judges, such as the Western District of Texas’ Judge Albright, who have shown a willingness to get patent cases to trial quickly. Critically, these judges will issue scheduling orders that often feature a trial date that predates the PTAB’s 18-month deadline from petition filing to issue a final written decision in an IPR. Armed with such a quick time-to-trial scheduling order, patentees can argue that IPR petitions should be denied under the NHK-Fintiv rule. An argument that some PTAB panels have accepted, to the immediate detriment of the IPR filer.

One recent example illustrates this interplay while also underscoring why frequent patent defendants have serious concerns about the NHK-Fintiv rule. Back in August, Apple was hit with a $500 million verdict by an East Texas jury. Back in February (before Fintiv, which also featured Apple, was decided), Apple filed an IPR petition against PanOptis’ asserted ‘833 Patent. Post-Fintiv, the panel assigned to the ‘833 Patent IPR petition ordered the parties to brief whether the upcoming August trial date between the parties warranted discretionary denial of Apple’s IPR petition. In a decision dated September 17, 2020, the panel decided against Apple, denying its petition under the NHK-Fintiv rule. Unsurprisingly, the fact that trial had already occurred and that there would be a “thirteen-month gap between the date of the district court jury verdict and the projected due date for a final written decision in this proceeding” the panel found “strongly favors exercising our discretion to deny institution.” In short, perhaps one of Apple’s best chances to avoid a half-billion dollars of liability was blocked, because of the timing circumstances of the case filed against it.

Now, Apple can surely afford to pay PanOptis, assuming it is unsuccessful in its Federal Circuit appeal from the jury verdict. What it can’t do, however, is appeal the PTAB’s IPR denial decision, a circumstance that perhaps contributed to its decision to file suit against the USPTO for its exercise of the NHK-Fintiv rule. On the other hand, patentees welcome every opportunity presented to them for a chance at speedy adjudication of their infringement claims — a process that is often frustrated by the granting of stays pending IPR by district courts. For PanOptis, and other patentees forced to run (and find a way to pay the substantial cost of) the gauntlet of winning in both the district court and the PTAB, the NHK-Fintiv rule contributes to giving patent owners a puncher’s chance of success.

Ultimately, the PTAB’s application of the NHK-Fintiv rule, the rush to secure speedy times-to-trial by patentees, and the pending lawsuit against the PTO all contribute to a heady mix of things to watch for patent litigators and their clients. For its part, PanOptis provides an example of a patent owner who successfully won the race to (and at) trial against a tech giant, while also benefiting from the NHK-Fintiv rule allowing it to block Apple’s shot at the IPR goal. Meanwhile, Apple — together with its fellow tech titans — is doing its best to aim for eliminating the NHK-Fintiv rule as quickly as possible. When it comes to patent litigation today, the race is on.

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.

It’s been about two weeks since Biglaw firms started handing out cash to associates in appreciation for all of their hard work during the pandemic. First came Cooley, which started the COVID bonus trend in the first place. Next came Davis Polk, which blew the Cooley scale out of the water, and others firms quickly fell over themselves to match the generous scale, one by one by one by one. So many firms have matched the bonus scale that we’ve started a bonus tracker here at Above the Law.

All the while, we’ve been wondering: Where is Cravath? Why hasn’t the perrenial bonus leader entered the bonus fray?

Cravath has heard Biglaw’s whispers and has finally entered the COVID bonus wars — but alas, the elite firm seems to be echoing Kirkland’s response. HA.

That’s right, Cravath will not be offering its associates a fall bonus. Cravath, the firm whose equity partners earned $4,414,000 in profits in 2019, is going to be sitting this one out, and unlike Kirkland — which pledged to “take into account … the fall bonuses paid by any other firm” in determining its December bonuses — didn’t even commit to taking the fall bonuses into consideration in announcing its year-end bonuses.

Read the memo for yourself:

Cravath associates are understandably not thrilled by this news:

It’s embarrassing that we bill so much at Cravath, but make less than our peers, especially when you consider our terrible benefits. We’re suckers.

Cravath gave associates the dick punch. No bonuses.

Ouch.

So, what do you think? Is this a sign to other firms not to match? Has Cravath given up its seat as Biglaw’s bonus leader? Feel free to sound off by email, by text message (646-820-8477), or by tweet (@ATLblog). A fun or insightful response — we’ll keep you anonymous — could find its way into an update to this story.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). 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, 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.

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.

Last month, Feit Consulting released a new report on the state of the market for major legal vendors Thomson Reuters. LexisNexis, Bloomberg Law, and Wolters Kluwer. Over the past 30 years, what was once known as the Computer Assisted Legal Research (CALR) market has been dramatically transformed by the integration of workflow, drafting, brief analysis, and analytics tools into knowledge-enabled insight platforms.

My interview with Michael Feit, founder of Feit Consulting, reveals how major legal information vendors have failed to adjust their pricing models to reflect the collapse of cost recovery following the Great Recession of 2008, when law firms faced a buyers’ market and CALR costs became almost 100% overhead.

According to Feit, the response of the two dominant players, Lexis and Westlaw, was to protect their revenue by eliminating “all usage-based pricing and published retail rates. From that point on, pricing from Lexis and Westlaw went rogue.”

As law librarians and knowledge managers prepare their firms’ post-pandemic budgets, Feit has shared insights and negotiation strategies in the interview that follows.

JO: How long have you been in the legal publishing industry?

MF: 30 years. (Wow!) I started my career working at Westlaw. I loved the experience. During the ’90s, it was so exciting and interesting being part of the paradigm shift in legal research from print to online. I finished the decade with Westlaw as Director of Large Law Firm Strategy. In that position, I could see the wide discrepancies in pricing already starting to emerge in the market, and I was advocating for a return to transparency. That is what prompted me to start consulting. I did not like clients being taken advantage of because they did not know the benefits other firms had achieved.

JO: How long have you been a consultant?

MF: I started consulting 20 years ago. I never thought the need for legal information consulting would endure this long. My expectation was that, eventually, pricing would have normalized and therefore need for consultants would diminish. Instead, pricing just got murkier.

JO: What has been the most positive change in the legal publishing industry?

MF: There [have been] many market-changing products emerging from new vendors and start-ups (such as Practical Law, Law360, Intelligize, Ravel, Casetext, Docket Navigator, etc.). Unfortunately, they are often acquired by larger vendors. It would be better for consumers if these new products could survive independently, but that isn’t the nature of the beast in this highly consolidated market.

JO: What is the worst trend that has a negative impact on law firm consumers?

MF: Ironically, since I benefit from it, the worst trend for law firm consumers has been secretive pricing. The need for consultants is largely due to the lack of transparent pricing. Secretive pricing truly hit its stride when the recession hit in 2008. Up until then, more than 90% of law firms had contracts with both Westlaw and Lexis. Law firms were able to afford to have both vendors as roughly 80% of online costs were being passed through to clients.

With the recession raging, firms looking to reduce costs started to only renew with one primary/preferred vendor and using the second one on a transactional basis, as a back-up. In response, to protect their revenue, Lexis and Westlaw decided to eliminate all usage-based pricing and published retail rates. From that point on, pricing from Lexis and Westlaw went rogue. Today, from firm to firm, prices for virtually all of Westlaw and Lexis products vary in an irrational way. Lexis, Westlaw, and, more recently, Bloomberg do not have price plans that can reasonably articulate how they arrive at pricing. This dynamic has had a very negative impact on law firm-vendor trust.

JO: Tell me about the timing of this year’s survey. Did you take advantage of the COVID disruptions to check the pulse of the market — or was it lucky timing?

MF: Both really. We usually field the survey in the first quarter of the year, but it became clear early on that 2020 would be a different kind of year. As COVID forced shutdowns everywhere and anxiety was peaking, we thought it best to let the dust settle a little. By early summer it had become clear that many of the adjustments lawyers and their firms made in response to the pandemic would be long-lasting, if not permanent. Postponing the survey by just a few months allowed us to ask questions to capture those changes and trends.

JO: What surprised you most about the survey results?

MF: I had expected to see a large number of firms who still had contracts with both Westlaw and Lexis looking to cancel one of these in their next cycle. I expected that more firms would be planning to cancel Westlaw — because it is so much more costly than Lexis. I was surprised the survey results showed that, instead, there are four times as many firms considering the cancellation of Lexis than Westlaw. Another interesting surprise was the endurance of print at law firms. The survey showed that pre-COVID, print still represented 18% of the average law firm’s legal information budget.

JO: What is the most important takeaway in planning budgets for the next three years?

MF: Everyone should use this moment to evolve past print and make sure there is a strategy to actually recoup some of the 18% spent on print. Also, try to avoid long-term contracts wherever possible. The market is too dynamic to lock in any one vendor. If you must lock in long term, make sure you have protective language, such as change of circumstances clauses.

JO: Do you anticipate any dramatic change in the legal information market over the next decade?

MF: The best opportunity for dramatic change would be the emergence of a viable competitor to Westlaw or Lexis; perhaps either Fastcase or Bloomberg.  I am hopeful.

Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

I think it means that people are paying attention, that there’s a younger generation that’s definitely paying attention. With 30 some-odd days left to go, people are connecting these major moments in American history with action at the ballot box. I think these terrible losses are translating for people into action, or taking that and doing something and connecting the dots between the world they want to create and voting.

— Vote.org CEO Andrea Hailey, commenting on the surge in voter registrations in the days following the death of Justice Ruth Bader Ginsburg, during an interview with NBC News. Vote.org had 139,046 registration verifications the weekend following Ginsburg’s passing (a 118 percent increase from the weekend prior) and received about 41,000 new voter registrations (a 68 percent increase) as well as nearly 35,000 mail ballot requests (an increase of 42 percent). Hailey said there was also a large increase in voter registrations and mail ballot requests after the first week of protests following the death of George Floyd.

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.

In the late 2010s, economic trends strongly favored corporate development. Since the 2008 recession, which altered headcounts and operations in many legal departments, the U.S. economy had grown substantially. 

Law department operations rode this wave and continued to grow their functions. For example, 10 percent of the respondents to the 2019 Law Department Operations Survey added their first dedicated LDO professional that year, while 10 percent added their first in 2018. 

The strong economy helped the law department operations function to not only grow, but to become more established. When asked to rank the maturity level of their law department operations in general on a scale of 1 to 5, with 5 representing most mature, nearly half of respondents, 47 percent, rated their teams as a 4 or 5.

The big question, however, is whether these trends can hold through the downturn. 

They should, as the law department operations function is a known cost saver and the activities it sponsors are often a good antidote for shrinking profits. 

Many companies, however, are facing hiring freezes, and legal ops can be considered to be a cost center, so it is questionable whether growth can continue. And budget cuts and distractions within the function — such as building work from home and return to work plans — may be impeding the maturity curve. 

Are legal ops functions continuing to grow through rough economic waters? This question and many more will be answered in the 13th Annual Law Department Operations Survey. If you’re an in-house legal ops professional, all you have to do is take the survey, and we will deliver the answers, along with 300+ additional data points, back to you at no charge.

Please follow this link and take the survey today.