Category: News Feeds

* The former CEO of McDonald’s is asking to be dismissed from a discrimination lawsuit filed by two former executives. Sounds like he could use a Happy Meal… [Restaurant Business]

* A Connecticut lawyer has been sentenced to prison for allegedly fleecing donors of a veterans’ charity. [Hartford Courant]

* Sources suggest that Senator Amy Klobuchar is being considered as a potential Attorney General in the Biden Administration. [CNBC]

* The first woman has been elected to become the new Maricopa County Attorney, leading the third-largest prosecutorial agency in the country. [Arizona Republic]

* The Los Angeles Times and Tribune Publishing have settled a longstanding pay disparity lawsuit. It must be interesting for the Times to write an article about itself… [Los Angeles Times]

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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 to data collected by Leopard Data Solutions, what percentage of partners at the Top 200 firms are not ethnically or gender diverse — otherwise known as white men?

Hint: Though white men only account for 41 percent of associates at these firms, they’re far better represented in the partnership ranks.

See the answer on the next page.

Epitaphs for Masa Son’s audacity have been written time and again. We ourselves have been guilty of it. After years of disaster after billion-dollar disaster, it really did seem as though the SoftBank chief had essentially given up, with his move into that last refuge of financial scoundrels, the special purpose acquisition company.

Rarely if ever have we been happier to report that we were wrong. You guys, Masa Son is back.

The conglomerate logged a profit of more than $6 billion in the July-September quarter, driven by rising share prices and valuations for some of its portfolio companies…. “We can go on the attack at the same time as we keep strengthening our defenses,” Mr. Son said at a news conference in Tokyo, the first in six months where he spoke to reporters in person.

Oh boy! There’s already a bunch of shit being piled on Jones Day for their role in enabling the legal fantasies of Donald Trump and pretending that the Supreme Court will deliver the election to Trump. And, rightly so. Not the first (or last) time Above the Law has called out the Biglaw giant, but in the grand media pond, we are relatively niche fish — we’re a bunch of former lawyers writing to an audience of practicing lawyers, after all — and it’s been great to see mainstream sources dunking on Jones Day.

And it’s about to get so much worse.

I’ve had my issues with the GOP never-Trumpers turned political action committee, the Lincoln Project, and I stand by the position that liberals should be wary of any “help” from them. But. But, well, this is going to be fun. Today, Greg Sargent at the Washington Post reports that the PAC is launching an ad campaign attacking Jones Day.

Televised anti-Jones Day ads? You know Above the Law is here for that.

The Lincoln Project has said that they will continue to advocate for expanded voting rights and anti-voter suppression laws even in a post-Trump world. And as Sargent notes, this is part of that effort:

“These people have now decided that attempting to undermine the outcome of a just and fair election is perfectly acceptable for their legal practices,” Rick Wilson, GOP strategist and co-founder of the Lincoln Project told me, in a reference to Jones Day and other firms representing Trump and the GOP.

Wilson said the Lincoln Project will “bring a light on that,” noting that such efforts  help Trump in “waging law fare against the American people.”

Oh, and it gets better: there’re also going after Jones Day’s clients. As Wilson says, “I’d like to know how General Motors justifies working with a company that’s aggressively seeking to undermine the validity of a free and fair election.”

As I said, this is going to get fun.

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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).

Whoa, whoa, whoa. I just think we have to be very clear: She’s charging the other side as welcoming fraud and illegal voting. Unless she has more details to back that up, I can’t in good countenance continue to showing you this. Maybe they do have something else to back that up, but that’s an explosive charge to make, that the other side is effectively rigging and cheating. … Not so fast.

— Fox News anchor Neil Cavuto, as he cut away from a press briefing featuring White House press secretary Kayleigh McEnany, who is also a Trump campaign spokesperson (and a former Above the Law columnnist), as she echoed the president’s unsubstantiated claims, without evidence, that Democrats encouraged voter fraud in the 2020 election.

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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.

There were basically three tiers of panic about Amy Coney Barrett’s disgracefully abrupt ascension to the Supreme Court. One tier feared that this was all an effort to guarantee Donald Trump could maintain the White House by judicial fiat. This is likely how it was sold to Trump himself, who might have squandered his only chance of staying in office by falling for this ruse. Others dismissed this — the conservatives had a majority as is — and instead focused on the jurist’s explicit animosity toward reproductive freedom and the Republican desire to get the full transition to Gilead locked in before a possible shift in the Senate. Meanwhile, the third tier, and the one that largely drove the official Democratic response to the nomination, worried that the rapid elevation was all about getting some, pun intended, insurance on the upcoming Affordable Care Act challenge.

It turns out that last argument was probably bunk. It’s often folly to rely on oral arguments for divining the eventual opinion, but this morning’s oral argument on the Obamacare challenge seemed to signal a solid majority unwilling to follow the Republican argument. And the theme that resonated from Chief Justice Roberts — and from Brett Kavanaugh, who followed the Chief’s lead — is that severing the individual mandate provision and allowing the rest of the law to stand is the proper solution.

But why it was a bunk concern offers a telling and tragic story about the state of the United States Supreme Court and the profound absence of any sense of legal consistency among its avowed conservatives. At the end of the day, the judicial philosophy of these justices is about the short-term best interests of the Republican Party. Period, full stop.

To be sure, this was a crisis entirely of Chief Justice Roberts’s own making. Had he upheld the ACA as a constitutional exercise of the interstate commerce clause — like everyone knew it was — then this case wouldn’t be here. But his original opinion was one of those “landmine decisions” where the result was less important than the majority’s showing of its work. Roberts upheld the ACA, not as a commerce clause case, but as a “tax.” This technical shift was lost on most straightforward political observers excited by the outcome, but it allowed Roberts to lay the groundwork for future efforts to undermine the commerce clause, the basis of everything from civil rights to environmental regulation. It also meant that when Congress later zeroed out the tax portion of the bill, Republican lawyers saw a chance to dump the whole thing. Ah, the best laid totally disingenuous plans….

So the crux of this case is “can the law survive by just severing the part where they now have a zero dollar tax or must the whole thing be tossed on the grounds that the mandate was central to the whole reasoning behind the law?”

Chief Justice Roberts made it clear that it could just be cut. “Congress left the rest of the law intact when it lowered the penalty to zero.” In other words, Congress signaled that their intention was to keep the ACA when it had an opportunity to kill it. This was most likely done because they had absolutely zero alternative and had noticed that the ACA had grown in popularity enough that Republicans were now campaigning on pledges to maintain guarantees of coverage for those with pre-existing conditions.

But this is the rub. In Shelby County, John Roberts struck down the primary tool of the Voting Rights Act and declared racism solved. In Justice Ginsburg’s dissent, she pointed out that severability was expressly written into the Voting Rights Act, and that, at worst, the majority could determine that Shelby County, Alabama no longer met the constitutional requirements for the edicts of the Act, but could not let that turn into a facial demolition of the whole legal regime.

And yet Roberts did just that.

A key practical element of the Shelby County severability argument was the fact that Congress had just overwhelmingly and on a bi-partisan basis renewed both the pre-clearance provision of the law and the list of jurisdictions requiring DOJ clearance. It was pretty clear evidence that they did not intend any individual challenge to overturn the Act as a whole. But today, when it’s convenient to John Roberts, recent congressional affirmation is ironclad proof of severability.

Certainly there are high-minded academic pretzels that can be made of how this is all somehow consistent — providing this sort of vapid cover is why the Federalist Society exists — but reduced to brass tacks (or “tax” for the sake of this opinion), John Roberts just said “look, Congress had a chance to strike it all down and didn’t proving they intended the law to survive as a whole” despite ignoring the very same logic when it came to aggressively disenfranchising Black voters.

There is no animating judicial philosophy beyond the political expediency of the Republican Party. And if polls didn’t overwhelmingly show that Republicans would get gutted in their Middle America strongholds if they allowed pre-existing condition guarantees to die, you can bet Roberts and Kavanaugh would have spent today quipping from the bench about the abiding necessity of recognizing this law as fundamentally unenforceable without an individual mandate.

But this is what they were put there to do.

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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.

One day, we won’t have to wade through a bunch of performative junk suits filed solely to appease the ego of a septuagenarian toddler bent on salting the earth before retiring to his Florida golf course. But that day is not today. Today, we’re slogging through a hundred pages of hot mess filed by the Trump campaign in its doomed effort to overturn the will of Pennsylvania voters.

According to the New York Times, the raft of nonsense suits filed by Trump and his minions has caused major internal strife at his go-to firms Jones Day and Porter Wright Morris & Arthur, where one attorney even quit in protest. They’re embarrassed and concerned about the reputational fallout from association with their famous client. And they should be.

The latest excreta landed in the Middle District of Pennsylvania’s punchbowl last night. Donald J. Trump for President, Inc. is suing Kathy Boockvar, the Secretary of Commonwealth, and the Boards of Election in Allegheny, Centre, Chester, Delaware, Montgomery, Northampton and Philadelphia Counties to prevent the state from certifying the results of last week’s election. Or, in the alternative, if the court would just throw out all the absentee ballots from those populous counties where the campaign says poll watchers had to stand too far back, that would be cool, too.

No, that’s not even a joke.

WHEREFORE, in addition to any other affirmative relief that the Court may deem necessary and proper, Plaintiffs ask this Court to enter judgment in their favor and provide the following alternative relief:

i. An order, declaration, and/or injunction that prohibits the Defendant County Boards of Elections and Defendant Secretary Boockvar from certifying the results of the 2020 General Election in Pennsylvania on a Commonwealth-wide basis;

ii. As an alternative to the first request for relief, an order, declaration, and/or injunction that prohibits Defendants from certifying the results of the General Elections which include the tabulation of absentee and mail-in ballots for which Plaintiffs’ watchers were prevented from observing during the pre-canvass and canvass in the County Election Boards;

They’re actually arguing that mail-in ballots themselves violate the Equal Protection clause because in-person voting subjects citizens to greater scrutiny than voting by mail, and thus the 2.6 million mail-in ballots cast in Pennsylvania must be tossed out when allocating the state’s 20 electoral votes.

In the Trump campaign’s telling, any minor deviation in voting procedures between counties amounts to a violation of Equal Protection. So elections officials in “Democratic-heavy counties” who visually inspected sealed ballots and allowed voters who had submitted defective ballots, that is without a signed exterior envelope or an interior “security envelope,” a chance to fix it were actually violating the rights of every other voter in the state.

The Trump campaign insists that county officials who refused to allow voters to cure defective ballots were acting appropriately. But officials who allowed eligible voters to correct errors and cast their ballots — a procedure allowed under Pennsylvania law — were actually violating the Equal Protection rights of residents of other counties by diluting their votes … with legally cast ballots from their fellow Pennsylvanians. And no, the Trump campaign will not be suing the elections officials who failed to allow ballot curing, because letting more people cast ballots is very much not their bag, baby.

The Trump campaign has hung its hopes in Pennsylvania on getting late-arriving absentee ballots tossed out. Attorneys General from several Republican states have joined the suit, including from Kentucky, where ballots mailed by November 3 are accepted for three days after the polls closed. But even if they somehow convinced the Supreme Court to invalidate the late-arrivers, it wouldn’t substantially erode Biden’s 45,000-and-counting margin.

As Bloomberg points out, none of the suits are alleging sufficient error to overturn the apparent results. Republicans are challenging fewer than 200 votes in Maricopa County, as Biden’s margin in Arizona tops 17,000 votes. Even if the Trump campaign’s claims of 3,000 illegal voters in Nevada were true — and they most certainly are not — it’s not going to make up for their candidate’s 36,000-vote deficit.

The Trump campaign can kick up a fuss and pump lies about voter fraud into America’s blood stream, but it won’t change the math. And whatever play they have planned in Pennsylvania to prevent a certification of the count and give the Republican-controlled legislature a chance to nominate its own slate of electors isn’t going to work, either.

In part because of this guy.

And in part because of that pesky math. Losing Pennsylvania’s 20 electoral votes would put Biden at 286. The GOP would have to flip Georgia and Arizona or Nevada. It’s not going to happen.

So batten down the hatches for an ugly, destructive 71 days until the inauguration. But we all know how this story ends.

Complaint

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

Putting on a successful virtual conference in the midst of a worldwide pandemic is not easy. But this year’s LF Dealmakers Forum pulled it off with aplomb. How? A combination of things, starting with a steadfast refusal to broach any compromise on the quality of the conference’s content. From the informative introductory interview with Ashley Keller — which highlighted the continued evolution of litigation finance from single-case “lottery ticket” — funding to a sophisticated asset class — to the various panels focusing on all aspects of modern litigation finance, there was a lot to learn. Since I had the good fortune once again to attend in my capacity as a columnist on these pages, I am happy to share what I think are three very germane takeaways relevant to IP lawyers based on what I heard at the conference.

There is much more to say of course, as it is hard to encapsulate eight panels, plus keynotes, in a single column. That said, there were a couple of recurring themes that arose across the different panels, particularly with respect to how litigation finance firms are thriving across a number of fronts, spurred on by the economic challenges facing their investor and customer base in the current pandemic. Flush with funds as institutional investors look to litigation funders as a noncorrelated play, funders are also enjoying an insatiable demand from law firms and claim holders for their attention. Which allows them the freedom to deploy their capital selectively, while also maintaining the favorable pricing terms they need to obtain in order to generate returns commensurate with the level of risk they take on. And even as competition increases among funders, they continue to work together to properly market, self-regulate, and set standards for responsible litigation finance practices.

So times are good on the litigation funding aside, at least in terms of enthusiasm for what the industry promises to provide to investors and customers (law firms/claim holders.) For IP lawyers hoping to make the most of the opportunities presented by litigation finance, however, there is an increased onus to get to work — both in terms of educating themselves on how the industry operates and in developing relationships with funders. The latter brings us to our first takeaway from the conference, namely the importance of developing good relationships with funders.

But time is short on that front, at least in my views, as funders are more pressed for time than ever just dealing with the influx of matters they are presented with for diligence purposes. At a minimum, IP lawyers should be doing what they can in terms of helping funders understand their practices and client base, especially when presenting a case to a funder for potential funding. It can be helpful to think of funders in the same way Biglaw partners are taught to think of in-house counsel they are pitching in a beauty contest for litigation defense work. You want the audience for your presentation to like you personally, at the same time as they learn about your experience, and most importantly, about your approach to the legal matter at hand. Because alignment of interests is so important to a successful funding relationship, it is absolutely critical that a level of trust and comfort develop between the funder and lawyer. Getting a head start on developing that personal relationship, ideally even before submitting a matter for funding, is a worthy goal for IP lawyers hoping to use litigation finance in their practices. Considering that most relationships where funding is committed are contemplated to last for years — as the case or cases being pursued make their way forward — it was not surprising that multiple funder panelists talked up the value of personal relationships between lawyers and funders. IP lawyers should take heed and consider giving funders the same level of attention as they give legal recruiters. Both can be important to one’s future prospects after all.

Next, and in line with the idea that funders are swamped with “opportunities” (especially IP matters) based in part on the economic turmoil engendered by the pandemic, is the importance of managing both client and colleague expectations as to the odds of getting a funding arrangement in place. While the demand for funding may be going up, the standards of funders evaluating cases are (rightfully) not going down. In fact, it is realistic to expect that with the increased investor focus on the funding sector that funders will become even more selective in terms of allocating the capital they have raised. And they are plenty selective already — to the tune of funding less than 5% of the opportunities they are presented. Put another way, you have a 95% chance of getting rejected by any given funder, even with a strong presentation on the merits. Yes, just like Ivy acceptances the most meritorious will “get in somewhere,” but it is important not to oversell the odds of getting funding to existing or prospective clients. Or even to colleagues who may be counting on you to deliver revenue, or at least justify the amount of time you are spending submitting potential matters to funders. This is not meant as discouragement, only a reminder that being honest when conveying prospects of success remains an important obligation for lawyers when dealing with clients and partners.

Third, IP lawyers must remember their obligation to turn the increased competition among funders to their clients’ advantage at every turn. As important as it is to maintain good relationships with funders, it is also just as important to make sure that the client’s interests are paramount. Which means tough negotiation on funding terms for those rare submissions that get to that stage. And intensive consideration and negotiation of every key term in the litigation funding agreement for the client’s benefit. Believe me, the panelists at the conference know they are in a competitive industry and expect to negotiate terms. At the same time, however, funders also expect that the lawyers they deal with are generally familiar with how litigation funding works — including with respect to the types of financial structures and terms funders need to use to give themselves a fighting chance to generate returns for their investors.

In short, realistic and respectful negotiation, built on a framework of mutual knowledge of the needs of the client and funder, is often the path to successful deals. That said, it is hard to see how an IP lawyer can properly represent their client’s (or law firm’s) interests before a funder without making the investment in learning as much as possible about the current realities of funding. Which makes the time at information-packed conferences like LF Dealmakers Forum — even in a virtual setting — well worth it for IP practitioners. While there is much more to convey about the conference, I hope these three takeaways give a flavor of what was on offer. And hopefully inspire everyone to get as educated as possible about this exciting and increasingly important part of the IP litigation space.

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.

You know, we give Jones Day A LOT of shit around here. And, listen, there are tons of good reasons for that between being the go-to law firm for the Trump administration and their opaque, black-box associate compensation system, well, there’s a lot of fodder. But the truth is, behind the Biglaw firm are a lot of lawyers and plenty of them don’t fuck with Trump’s politics (though have historically been fine with making money off of defending them), and are pretty annoyed with the compensation nonsense. Now we have some Jones Day lawyers who are finally willing to speak up — well, anonymously.

In a new article in the New York Times, they speak with nine senior attorneys — both partners and associates — at the firm who “are worried that [Jones Day] is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections.” Well, no shit. Welcome to the party.

We know that the series of lawsuits filed by the Trump campaign are on… challenging legal grounds. And let’s be honest they’re designed to soothe egos and grift money from right wing supporters to cover campaign expenses. Though the chances of the courts coming to save Trump’s presidency are pretty slim, there’s still harm being done.

It’s the faith in American democracy that’s being eroded. And Jones Day’s involvement in the specious Pennsylvania litigation (you remember, they had to segregate the ballots received after November 3rd, which they were already doing, and there aren’t even enough of those ballots to matter anyway) that finally seems to be giving some Jones Day lawyers pause:

Six Jones Day lawyers said that given the small number of late-arriving ballots involved in the litigation, and the fact that they already had been segregated, the main goal of the litigation seemed to be to erode public confidence in the election results.

Jones Day did not respond to a request for comment.

In recent days, two Jones Day lawyers said they had faced heckling from friends and others on social media about working at a firm that is supporting Mr. Trump’s efforts.

A lawyer in Jones Day’s Washington office felt that the firm risked hurting itself by taking on work that undermined the rule of law. “To me, it seems extremely shortsighted,” the lawyer said.

And you know, if you’re a law student or lateral candidate and you have a choice to go… anywhere else, it’s looking increasingly likely the best and brightest will exercise that option.

The Times also details “discomfort” at another Biglaw firm — the Am Law second hundred firm of Porter Wright — and their involvement in election lawsuits.

Chief among their concerns: How could lawyers, whose profession is based on the rule of law, represent someone who they felt had frequently tried to flout it? One lawyer said he was concerned that the firm might be asked to try to delay the election. Another said he quit in response to the decision to represent Mr. Trump in Pennsylvania.

At two meetings, associates at Porter Wright told the firm’s partners that they objected to the work for the Trump campaign, according to the three current and former employees. They were told that the assignment was limited to the election in Pennsylvania. That assurance struck some attendees as hollow, since the state might decide the election.

Robert J. Tannous, the firm’s managing partner, declined to comment in detail on the work for Mr. Trump. He said, “Porter Wright has a long history of representing candidates, political parties, interest groups and individuals at the local, state and federal levels on both sides of the aisle, and as a law firm will continue to do so.”

But as you know, thankfully a slew of other states besides Pennsylvania voted for Joe Biden, and the Trump litigation strategy would have to master the extremely unlikely feat of invalidating the election results in multiple states to change the results of the election.

At least it’s good to see that some attorneys prioritize the sanctity of elections over the value of billable hours.

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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).