Category: News Feeds

After 17 years, Andrea Mackris, the former Fox producer who accused Bill O’Reilly of sexual harassment, is breaking her silence.

“I may not get the past 17 years back, but there is one way I can retrieve my power from this storm of lies, loss, greed, and grief,” Mackris told The Daily Beast earlier this month, describing her decision to abrogate the $9 million non-disclosure agreement she signed back in 2004.

But Bill O’Reilly, who eventually lost his job at Fox but has been mounting a comeback in recent years, is determined to put a stop to Mackris’s revelations.

According to TDB, O’Reilly sought and obtained a restraining order from the New York State Supreme Court in Nassau County last night, arguing that “Mackris intends to further materially breach her legal obligations tomorrow morning, live on national television.” ATL has been unable to verify the order, which does not appear on the court’s website and may have been filed under seal.

Likewise, the events as laid out by Diana Falzone are somewhat confusing.

Mackris was scheduled to appear Wednesday morning on ABC’s daytime talk show The View, but on Tuesday evening O’Reilly was granted a temporary restraining order against his ex-staffer, effectively canceling her TV hit in the process.

“We were notified late yesterday about a temporary restraining order issued by a court against Andrea Mackris. We decided to postpone her interview pending further developments,” an ABC spokesperson said in a statement to The Daily Beast. “We look forward to welcoming her to The View at a later date.”

So ABC, which was not a party to the suit, canceled an appearance by Mackris after being “notified” of the order’s existence? Even though Mackris herself was never served with the order?

“I have not been served with anything, but apparently Bill O’Reilly was able to interfere with my appearance on The View,” Mackris told The Daily Beast on Wednesday morning. “I hope the days of the law allowing the silencing of women are over. I will continue to fight for my voice.”

But somehow The Daily Beast, whom O’Reilly accused in court of “coaching” Mackris, does have a copy of the order?

Bizarrely, the restraining order was not served directly on Mackris. Instead, O’Reilly’s counsel suggested The Daily Beast should forward the court documents to her—a scenario shot down by the court, which wrote that O’Reilly’s team must notify the former producer.

UH HUH.

We have questions. Like WTF is going on here? Has O’Reilly sued The Daily Beast for daring to air Mackris’s allegations? And is this a case of a state court judge blundering into a First Amendment morass? And what is the price of speaking your truth?

Because it’s all well and good for Mackris to say “My act of breaking [the NDA] is almost an act of self-defense. You know, it’s like, no matter what [O’Reilly] tries to do to me, I’m going to be OK.” But $9 million is a whole lot of money, and that’s before she has to hire counsel for an actual self-defense in court.

It’s a hot, confusing mess. And the sooner somebody sends a copy of that restraining order to tips@abovethelaw.com, the better.

O’Reilly Silences Accuser Again, Blocks ‘View’ Appearance [The Daily Beast]

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

Amid reports of widespread noncompliance with the federal hospital price transparency rule, the Centers for Medicare & Medicaid Services is proposing stringent penalties.

Included in the 2022 Hospital Outpatient Prospective Payment System and ASC Payment System Proposed Rule, hospitals found to be flouting the price transparency final rule could be penalized with a fine ranging from $109,500 to $2 million per hospital per year.

The agency is proposing a minimum penalty of $300 per day that would apply to hospitals with a bed count of 30 or fewer; and a penalty of $10 per bed per day for hospitals with more than 30 beds. For the latter, CMS would institute a maximum daily dollar amount of $5,500.

Despite strong pushback from provider groups, the hospital price transparency final rule went into effect on Jan. 1. The rule requires hospitals to present pricing information — including prices negotiated with payers — in two ways. First, as a machine-readable file with all items and services, and second, as a display of shoppable services in a consumer-friendly format.

But several studies and surveys have shown that compliance with the rule is lacking. Most recently, The Washington Post published findings from a patient advocacy group that reveals 471 out of 500 hospitals studied were not compliant.

The government is aiming to drive compliance with its newly proposed penalty.

“No medical entity should be able to throttle competition at the expense of patients,” said HHS Secretary Xavier Becerra, in a news release. “I have fought anti-competitive practices before, and strongly believe healthcare must be in reach for everyone. With today’s proposed rule, we are simply showing hospitals through stiffer penalties: concealing the costs of services and procedures will not be tolerated by this administration.”

In addition to the penalty, CMS is proposing that hospitals’ machine-readable files support automated searches and direct downloads.

Further, the agency is seeking public input on a variety of issues, including methods to identify and highlight exemplar hospitals and improving standardization of the machine-readable files.

The latter could prove necessary as there has been some uncertainty about how effective the rule is in allowing patients to make informed cost decisions when seeking care. An analysis published in April suggested that the price of a service from one provider might not be directly comparable to that of the same service from another, largely due to inconsistencies in how hospitals are presenting the data.

Photo credit: Waldemarus, Getty Images

As Congress tries to negotiate an infrastructure spending bill, one point of contention is $40 billion allocated to the Internal Revenue Service to increase enforcement of the tax laws. It is widely believed that the funding will pay for itself and more to help pay for the infrastructure costs. Not only that, it will reduce the “tax gap” — the difference between the tax that people owe and what they actually pay. But the funding proposal was dropped due to pushback from Republican politicians.

There are a number of reasons for Republican opposition. They see this as a backdoor tax increase due to overzealous auditors shaking down businesses. As a result, some may choose to pay the extra tax rather than spend the time and money to fight. Others believe that the IRS will use its broad investigatory powers to invade taxpayer privacy. Finally, tax collectors will have more power to forcibly take money and property from struggling taxpayers or from businesses that may want to use that money to invest in employees or expansion.

There is some merit to some of these talking points. Many may still remember the congressional hearings in the 1990s where aggrieved taxpayers testified about abusive actions from IRS staff. The testimony resulted in the passage of the IRS Restructuring and Reform Act of 1998 which limited IRS collection powers, created an oversight board, and, as the name implies, generally restructured the IRS operations to be more efficient and taxpayer friendly.

Some of the funding would likely be used to improve existing technology to improve service. Most IRS staff use slow and outdated IT equipment. This may be why some IRS offices only accept paper submissions and faxes instead of CDs or flash drives containing digital copies of documents. The improved technology can be used to process tax returns (and refunds) faster. It can also be used to detect suspiciously prepared tax returns while minimizing false positives.

The funding can also be used to hire representatives who can answer taxpayer questions about their accounts. In recent months, the hold times at the IRS were worse than usual. On most days, the IRS will not even take your call (despite the above mentioned callback feature) due to the backlog. The increased staff will reduce hold times and improve taxpayer satisfaction.

One convenient tool the IRS recently implemented was a callback feature to mitigate the inconvenience of long hold times. If you call the IRS and are expected to have a long hold time, the IRS will call you back when you are next in line to talk to a representative. If you don’t pick up the first time, then they call you back in 10 minutes. This was implemented by California’s Franchise Tax Board and the feature was welcomed as it minimized inconvenience to taxpayers.

Finally, the increased funding can be used to improve enforcement on the wealthy through audits, collections, or both. While closely monitoring the top 1% is likely to be favored by 99% of the population, the IRS will have to audit a large control group to determine whether a taxpayer belongs in the 1% (at least for tax purposes). Some may be underreporting their income not only to avoid taxes because they think that it will avoid IRS scrutiny. There has been some talk about requiring banks to report more transactions to the IRS in order to more efficiently determine whom to audit.

What does the private tax professional community think about this? One might think that they would be happy with a feeble IRS. But most are actually in favor of increasing funding as it will save them time and be beneficial for most of their clients. They agree that the increased funding would result in a net positive return on investment to the federal treasury. They also want funding to increase staff in order to eliminate long hold times. And they support hiring additional auditors so long as they are fair and reasonable to taxpayers.

Most agree that increasing funding to the IRS could reduce the tax gap that will help fund the infrastructure spending bill. But in order for the bill to appease at least some Republican members (or their constituents), it should be sold to them in a way that highlights improved taxpayer service. Technology upgrades will result in faster refund processing and more efficient detection of returns that need a second opinion from an auditor. The funding can be used to hire front line staff that can reduce hold times for taxpayers and professionals. While the hiring of additional auditors will result in pushback, both parties should take this opportunity to discuss how auditors can be fair to small business taxpayers who might not have the resources to prepare an adequate audit defense. If this can be accomplished, it can be the first step in reducing the tax gap without putting taxpayers in fear of an IRS reign of terror.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

People are looking forward to having the ability to come back to the office, but there is a real desire to have flexibility built into the new office work model. We have found that lawyers and others at a firm can work at a very high level to support the clients outside of the office in other settings.

[W]e do anticipate that most of our lawyers and consultants will work two or three days per week on average in the office, from the firm office or client location or traveling for client service. This is all evolving. I don’t think any of us could predict what the environment will be even two months from now, so you have to show flexibility.

— Andrew Kassner, co-chair of Faegre Drinker, in comments given about his firm’s hybrid work schedule, which is set to commence after the Labor Day holiday. As part of the plan, lawyers will be able to choose their own work schedules, and staff will work all remotely, all in-office, or a combination of the two. Faegre Drinker currently has a voluntary vaccination policy, in that those who are fully vaccinated may request exemption from the firm’s mask mandate, while those who are unvaccinated must wear masks unless alone or taking a socially distanced meal/beverage break. All employees in the office must complete daily health screenings.

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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.

When attorney Natalie Simpson grabbed three-year-old boxer Layla off the street in broad daylight, she was barking up the wrong tree, according to Ontario Superior Court Justice Eugenia Papageorgiou in a recent ruling.

According to the opinion, Simpson and fellow attorney Michael Duboff were in a common law relationship for four years between 2015 and 2019. Layla was adopted in 2018. After the couple split, Duboff would occasionally leave the dog with Simpson to look after, owing to the couple’s amicable split.

That “amicable” part seems to have disintegrated in early 2020 when Duboff started dating someone new.

Simpson didn’t see the dog for about five months before…

Approximately one year after their separation and five months after Natalie had last seen Layla or communicated with Michael, Natalie saw Layla being walked by someone who she did not know on St. Clair Avenue. It was Julieta Mandelbaum (“Juli”), Michael’s new girlfriend. Natalie stopped her car, ran across the street and struck up a conversation with Juli. She then took Layla’s leash and ran across St. Clair Avenue to a car where one of her co-workers was parked. Juli telephoned Michael and followed Natalie, begging for her to return Layla but Natalie put Layla in the car and drove away.

Bold.

That gave rise to a civil proceeding over dog custody that unintentionally serves as a warning against ever dating a lawyer… ever. From the opinion:

This matter was very important to the parties. Natalie even had two lawyers representing her. Each of Michael’s and Natalie’s closing submissions were approximately 75 pages long.

Do they not know aboot page limits in Canada? Because they’re useful.

In the end, Duboff prevailed. As Court Report Canada explains:

Simpson argued that the couple made joint decision about Layla’s care, citing emails and texts that suggesting the dog was jointly owned, including a message where Duboff wrote that he had “found a dog for you,” and an email to the vet announcing, “Natalie and I are getting a new puppy.” But Justice Papageorgiou was not convinced:

“I agree with Michael that, in the context of all the other evidence before me, these texts are not evidence of ownership but rather communications between a committed couple. Layla was their family dog, but it does mean that she was jointly owned,” she concluded.

And as a dog rather than a child, Layla has to belong to someone else the courts get involved in supervised visits which would strain judicial resources even more than wading through 150-pages of filings about a dog.

As it’s not possible to talk about Layla without a coda, Justice Eugenia Papageorgiou concludes:

If the parties cannot agree on costs, they may make submissions no longer than 5 pages each, Michael Duboff within 7 days and Natalie within 7 days thereafter.

So this ugly episode can end with the heartwarming news that she’s learned her lesson about page limits.

Toronto lawyer must return dog-napped boxer to ex-partner, judge rules [Court Report Canada]

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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.

Figuratively and literally, artificial intelligence can be a welcome companion.

For lawyers, it can mine time spent on projects, assist with document management and eDiscovery, and even bolster research capabilities, among many other functions.

But with so many advancements — and a sometimes-loose definition of what “AI” actually refers to — it can be challenging to bring its benefits to your practice. 

To help your evaluation process, we’re pleased to bring you the Artificial Intelligence installment of our Legal Technology Non-Event. 

Join us here for expert commentary, featured coverage, and the best buyers guide around — all in plain English and geared to meet your fully booked schedule.  

See how machine learning can free you up for the high-level work your clients expect. It’s one click away.

The Premier Spot for Tech-Perplexed Lawyers

For most lawyers, the prospect of a tech conference triggers thoughts of boredom and missed billables. And as a group, attorneys’ tech adoption is often begrudging, at best.

That’s why we’ve launched the ATL Non-Event.

We’re bringing the technology conversation to lawyers directly: in plain English and geared to meet a fully booked schedule.

The Non-Event is conducted in partnership with our affiliate Evolve the Law, as well as Legal Tech Publishing, whose buyers guides are the go-to resource for all purchasers of legal tech.

This month, you’ll hear from:

• iManage
• LegalSifter
• Onit
• Reveal
• SimpleLegal
• Time by Ping

Swag bags, unfortunately, are still a work in progress.

When did the Renaissance end? While some epochs in history are very definitively punctuated (the Roaring Twenties, for example, by Black Tuesday), others tend to decline and fade more gradually, the dramatic moments more signposts than endpoints, more symbolic than certain. So, when did the Renaissance end? With the Bonfire of the Vanities? Da Vinci crossing the Alps? The sack of Rome? The founding of the Inquisition? Or with all of them and none?

On July 12, the S&P 500, the Dow Jones Industrial Average, and the Nasdaq Composite all hit record highs. The previous record highs were achieved the previous trading day, July 9.

The next week saw gains modestly pared, until July 19, when stocks plummeted. Before lunchtime, the Nasdaq Composite was down 1.7 percent, the S&P 500 fell by 1.9 percent, and the Down Jones Industrial Average shed 2.2 percent. Major news outlets cited COVID-19 jitters, and shareholders in companies that would be especially hard hit by another round of lockdowns, like airlines, and hotels, took a special form of pummeling.

By the end of the day, the Down Jones Industrial Average had its worst day since October 20, 2020. Headlines poured out blaming the spread of the delta variant and an uptick in COVID-19 cases amongst the unvaccinated.

Then, on July 20, stocks rebounded sharply. The Dow Jones Industrial Average soared by 550 points — not quite reaching its pre-July 19 heights, but getting pretty close. The S&P 500 essentially gained back everything it had lost a day earlier. The Nasdaq not only erased its Monday loss, it finished Tuesday half a percentage point higher than it ended the day on Monday.

Now the headlines proclaimed that stocks were recovering in spite of “COVID anxiety.” How could the prevailing views of the deadly delta variant and the massive shifts in COVID-19 risk calculation have changed so jarringly in just a single day?

Well, they didn’t. Sure, things that happen in the day-to-day news can affect the stock market, but not as much as you might think, and not really for the long-term. More often, what is happening is that financial writers have to write something about big changes in the major stock indexes, so they look around at what is going on in the world at the same time as the stock market movement, blame that, and get a few quotes from financial industry people who are doing the same thing. I’ve probably been guilty of that myself.

But the truth is, the vast majority of the time, we simply do not know why the stock market does what it does on a daily basis. It is far too complex a system for that. Even so, it is uncomfortable for human beings to acknowledge that the fate of our entire economy depends on a system that we do not understand and cannot fully explain.

At any rate, I can prove that it wasn’t an actual uptick in COVID-19 cases that led to the July 19 stock dip. The daily COVID-19 case numbers don’t come out until the following day, so any effect the actual updated number of COVID-19 cases may have on stocks would be slightly delayed. On July 17, 35,509 new cases were reported in the U.S. On July 18, 33,837 new cases were reported in the U.S. On July 19, there were 34,830 new cases — a slight increase from the previous day, but a stock trader would not have known that until July 20, when stocks saw huge gains. As far as someone trading stocks on July 19 knew, new COVID-19 cases were trending down in the immediate past, and the delta variant was certainly no more contagious on July 19 than it was on July 18.

If there was going to be a truly COVID-related stock dip over the past few days, it should have happened on July 20, once people knew that there had been a slight uptick in cases. Or it should have happened much earlier in July, when stock indexes were hovering near records but new COVID-19 cases were increasing far more sharply than they are now. The top one-day high for new cases so far this month was 40,853 on July 16.

Yes, there are still lingering concerns from many about the coronavirus, and yes, stocks go up some days and down others. Are those two things related? Probably, but mostly in ways that are far too complex for a human being to comprehend. We can say for certain that if the July 19 stock dip was related to COVID-19 fears, those fears were irrational, because they should have logically come on a day when COVID-19 cases were known to be steeply climbing rather than slightly falling.

So maybe we should stop pretending, after-the-fact, that there are easy answers and that we can clearly explain why the stock market did what it did. If we were that good at explaining the behavior of the stock market, we’d know beforehand what it was going to do rather than always scrambling to come up with the rationale afterward.

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Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Over the course of my career, I have worked for both large and smaller law firms. Some people may think that bigger law firms have all the advantages in litigation since they can deploy the most resources and talent to handle a given legal issue. However, smaller firms have many advantages of their own and can adopt strategies to effectively litigate cases against larger law firms. There are a few strategies that lawyers at smaller firms can employ when litigating against larger firms that may have more resources.

Plan

One of the benefits of larger law firms is that they can put numerous lawyers and other legal professionals on a project in order to produce work product on a tight deadline. Smaller law firms may have difficulty producing work product in a short amount of time because smaller law firms usually have fewer attorneys and less bandwidth that can be devoted to legal matters. Of course, there are ways in which that work can be farmed out to other lawyers, but that might not be an option depending on the finances of a case.

However, if small firm lawyers plan, conduct research, and begin writing work product early enough, they can be on an equal, if not far superior, playing field against bigger law firms. For instance, earlier in my career, I believed that I would be on the receiving end of a massive motion to dismiss filed by a large law firm. In order to prepare for the inevitable motion practice, I started beginning my opposition research even before the lawsuit was filed. This also had the added benefit of allowing me to review copious materials related to my causes of action, and I was able to bolster my papers prospectively in order to account for arguments that could be made against my causes of action.

Of course, lawyers cannot predict everything that another attorney will argue in motion practice. In addition, it rarely makes sense to write a facts section or other elements of papers too far in advance, and if a motion is never filed, the work done on opposition research is mostly wasted. However, if the finances of the case permit work to be performed far in advance, it often pays to perform such work, especially since this could offer numerous benefits to the representation.

Attack Procedural Issues

One of the easiest ways to defeat motions is to point out how the motion or other part of the litigation process is procedurally defective. Lawyers at Biglaw firms may not know as much about the procedures of certain jurisdictions, especially state courts, since they do not often engage in the same volume of cases as small-firm lawyers and are often in federal court where bigger cases are usually litigated. Earlier in my career, I remember watching a partner at a large law firm being forced to attend CCP in Brooklyn and being befuddled by the procedures there, even though any street lawyer would have been able to handle the process with ease.

In any event, judges love to decide matters on procedural grounds since they often need to do less work this way, and showing how Biglaw lawyers made procedural mistakes can be a good method of asymmetrical litigation. For instance, I once had to oppose a nasty motion to compel and spoliation motion, and the papers were very well written. However, the jurisdiction required that lawyers submit an affirmation noting how they tried to resolve a matter before seeking judicial intervention, and this was not adequately done in our case. I pointed out to the court that the required affirmation had not been supplied, and this was the basis for denying the motion. In this way, a few paragraphs of argument were able to defeat a motion that was dozens of pages long.

Financial Pressure

In some ways, lawyers at small firms can use the financial pressures of litigation in order to face off against larger law firms. Biglaw firms often charge several times more per hour than smaller firms. Moreover, smaller law firms are far more likely to have alternative fee arrangements with their clients which might eliminate financial burdens from the equation of pursuing strategies in litigation. Of course, in some matters, large clients will pay any cost in order to be successful in litigation, and in such cases, financial issues may not make a large impact on cases.

However, in smaller and medium cases, smaller firms can sometimes play a war of attrition against larger law firms because each motion, deposition, discovery demand, and other aspect of the litigation may cost the client of a large law firm several times more than the client of a smaller law firm.

All told, larger law firms definitely have many advantages in litigation, and there is a reason why many large companies hire large law firms for serious matters. Nevertheless, smaller law firms can still litigate against larger law firms using a variety of asymmetrical litigation tactics which can have benefits to clients of smaller law firms.

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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.

While some Biglaw firms have mandated that associates and staff members return to the office on a regular, everyday basis, others have simply put an end to the five-day, in-office workweek, encouraging employees to come to the office a few times a week, with no pressure for facetime. But what if your firm let you know that you didn’t have to go back to the office for the rest of the year?

That’s exactly what’s happening over at Cooley. In a memo sent earlier this week by Mark Pitchfield, the firm’s administrative and legal practice partner, he noted that thanks to the pandemic, the firm had “evolved to such a degree that our workplace of the future will be neither fully remote nor fully in person.” What does that mean for Cooley going forward? Here’s more from the memo:

Consistent with that evolution, for the balance of 2021 across our US offices, we will not institute a mandatory return date or require a minimum number of in-office days for those whose job duties permit remote work. For the remainder of this year, we welcome all whose personal circumstances and comfort levels permit to begin reacquainting yourselves with office life and with one another. With everyone’s health and well-being as our essential priority, and with the goal of making our workplaces as safe as reasonably possible, by Labor Day everyone working in or visiting one of our US offices must be fully vaccinated.

Cooley associates need not return to the office anytime this year, but the firm expects that anyone who plans to go back to the office be vaccinated. We’re noticing a trend here that more and more firms are expecting employees to be vaccinated before returning to the office. Will your firm be mandating the vaccine for all?

Getting back to Cooley’s “reopening” in name only…

We will remain a workplace for the future, characterized by trust, support and agility – a place that best suits our people, our clients and our culture. To those ends, we are committed to staying on the leading edge of creativity and flexibility while ensuring our ability to deliver world-class legal services. Given this, and the fact that we must remain vigilant about our health and well-being, now is not the time to delineate precisely what the post-pandemic work environment will look like. We will, of course, provide more information about 2022 closer to the end of this year.

Kudos to Cooley for recognizing that things are still up in the air when it comes to the pandemic, and for realizing that the firm should not let all the lessons learned during their time away from the office go to waste. We look forward to seeing what the firm’s hybrid office policy looks like in 2022.

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 the office.

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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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.