Category: News Feeds

Parental leave is designed to afford workers an opportunity to take care of tiny humans, it’s not supposed to be a time when you get assigned additional high-stakes work. But that’s exactly what happened in the St. Louis prosecutor’s office.

A murder case against Brandon Campbell was dismissed last week by St. Louis Circuit Judge Jason Sengheiser, because the prosecutor’s office had “abandoned its duty to prosecute those it charges with crimes” after the office no-showed for three separate court hearings and missed a court-order production deadline. Campbell was recharged with crimes, but it begs the question — why didn’t anyone show up in the first case? It turns out the attorney assigned to the case, Kimberly Arshi, was only given that assignment a week after she’d already begun maternity leave.

Circuit Attorney Kimberly M. Gardner blamed the dismissal of charges against Campbell on “internal policies and procedures regarding family medical leave.” She said “corrective measures are needed to further prevent any future repeat occurrence of the incident in question,” but failed to give any reason why no one else was assigned the case while Arshi was on leave.

Besides this case, St. Louis Post-Dispatch reports Arshi was also assigned at least nine (9!) other felony cases while on leave including a death penalty murder case, two other murders, three robberies, and two assaults. This is more than a simple administrative slip up. This is a massive miscarriage of justice, especially given the lack of a plan to have someone cover while she was gone.

Peter Joy, a law professor at Washington University, told the Post-Dispatch that 12 weeks — a common length for maternity leave — “is not a long time in felony cases. It would depend on what the trial date is, and also when the person is anticipated back. So it may be reasonable because experienced trial lawyers may be able to pick up a case and get it ready in a couple months.” But still not a reason why no one was assigned to cover Arshi’s cases.

Nick Zotos, a defense lawyer in one of the cases Arshi was assigned while away, said, “It’s just a small reflection of what’s going on in the office. Either they don’t care or they’re sloppy.”

And he’s not the only one with that opinion:

Matt Waltz, a public defender for clients in at least two cases recently assigned to Arshi, said that when he took medical leave some time ago, his office did not assign him any new cases. He speculated that assigning Arshi cases while she’s on leave was a stall tactic until she returned.

Earlier this week, Arshi reportedly resigned from her position. Hopefully her next job will do a better job respecting parental leave.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).

The NXIVM sex cult case somehow managed to get wilder.

The organization’s former leader Keith Raniere watched on via teleconference from prison in Arizona while his lawyer, Marc Fernich and Judge Nicholas Garaufis got in a yelling match followed by half an hour of a silent staredown.

At issue was Fernich’s request to delay the hearing by an hour to attend the funeral of his friend and mentor. While that’s a valid reason for a delay on paper, Judge Garaufis denied the request because the funeral was in the morning and the hearing wasn’t until 2 p.m. Commuting from Queens can be a nightmare, but it’s not a four-hour nightmare. Add in that this hearing required moving a prisoner around on the other side of the country and any requested delay should be strongly disfavored.

Even though this was all settled over the weekend, Fernich decided to raise it again at the hearing itself and that’s when things got real:

Fernich said the denial of his request for an hour’s delay to the proceeding to allow him to attend the funeral violated “human decency and professional courtesy.”

Garaufis stood up from his chair, picked up a box of tissues and pointed at the attorney during a screaming match.

That is both incredibly funny and… probably inappropriately harsh. The requested delay was properly denied and it was absolutely inappropriate to try and relitigate it at the hearing itself, but this might be too mean. And when it comes to the boundaries of acceptable snark, I’m a frighteningly lenient audience.

After Fernich offered what Judge Garaufis clearly saw as grandstanding, the judge shouted, “Be seated or I’ll have you arrested.” One more trade of barbs and…

Garaufis then sat back down and the courtroom fell into a deep silence.

The court sat virtually mute for 30 minutes.. Raniere, live over a video feed from his Arizona penitentiary, scratched his face and crossed his arms as the awkward silence reigned.

The quiet ended when Fernich stood and apologized to the judge, ending the stalemate.

Everything about this case is a circus. Raniere was ultimately ordered to pay $3.5 million in restitution to his victims. If this upsets him, Judge Garaufis has some tissues for him.

Brooklyn federal judge in courtroom screaming match with sex cult lawyer who wanted hearing delayed to attend colleague’s funeral [NY Daily News]

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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.

What do associates at major law firms care about more than money? Prestige, of course. But, at the end of the day, sometimes being a leader when it comes to compensation is enough to boost a firm’s prestige. As luck would have it, the closely watched Vault 100 rankings are here to remind lawyers at the nation’s largest law firms about exactly which ones are considered the most prestigious.

In last year’s Vault 100 rankings, Cravath — the firm that matched Milbank’s $190K associate salary scale three summers ago with over-the-top monetary compensation for senior associates and matched the generous new salary scale set by Davis Polk this summer — managed to retain its number 1 spot, with Wachtell Lipton edged out of second place by Skadden for the first time in the history of the Vault rankings. Was Cravath able to keep its cachet as the most prestigious Biglaw firm in the country in the latest Vault rankings?

Of course it was. Here’s what Mary Kate Sheridan, Vault’s senior law editor, had to say about Cravath’s placement in the latest rankings: “Cravath and prestige go hand in hand, with the firm securely atop the Vault Law 100 year after year and also within the top 10 of multiple practice area rankings including the top position in General Corporate Practice. When Cravath speaks, other firms follow. The firm has established industry standards on hiring and compensation for years, and even when it isn’t the first to move, Cravath’s decision to join influences the market—as with this year’s compensation and special bonus announcements.”

Biglaw may be on the Davis Polk scale, but Cravath remains the namesake for salaries because of its prestigious pull, with survey respondents referring to the firm as an “industry trend-setter” and a “compensation leader.”

Although Cravath stayed on top, this year, there was some movement when it came to the Top 10 in the Vault rankings. Here are the Top 10 Most Prestigious Law Firms based on Vault’s Annual Associate Survey for 2022:

1. Cravath, Swaine & Moore
2. Wachtell, Lipton, Rosen & Katz
3. Skadden, Arps, Slate, Meagher & Flom
4. Sullivan & Cromwell
5. Latham & Watkins
6. Kirkland & Ellis
7. Davis Polk & Wardwell
8. Simpson Thacher & Bartlett
9. Paul, Weiss, Rifkind, Wharton & Garrison
10. Gibson Dunn & Crutcher

This is the fourth year in a row that these firms have been in the Top 10, but as you can see, we had a two pairs of flip flops among them. At the tippy top, Wachtell has reclaimed its No. 2 position after losing the spot for a blip in time last year, and because fame is sometimes fleeting, Skadden is back with a bronze medal in hand. At the bottom of the top, Paul Weiss and Gibson Dunn have traded places. Surprised Davis Polk didn’t move? The Vault Associate Survey was conducted between March and May 2021 — before the firm’s monumental salary move. Perhaps we can expect it to move up a few spots in next year’s ranking.

Click here to see the rest of Vault’s prestige rankings.

Congratulations to all of the Biglaw firms that made the latest edition of the Vault 100 rankings. How did your firm do this time around? Email us, text us at (646) 820-8477, or tweet us @atlblog to let us know how you feel.

Vault’s Top 100 Law Firms For 2022 [Vault]
Introducing Vault’s 2022 Top 100 Law Firms! [Vault]

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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.

On July 11, 2021, Israel took a significant step forward to protect LGBTQ+ parenthood equality. Its Supreme Court ruled that hopeful gay dads-to-be — just like heterosexual couples and single women — must be permitted to access surrogacy to have a child, and must be able to do so within six months of the ruling.

You see, the court had already ruled in favor of gay couples being able to engage in a surrogacy in Israel. A year earlier, the court found that the Israeli law that expanded access to surrogacy to single women but excluded single men and gay couples “disproportionately harmed the right to equality and the right to parenthood,” and was thus unlawful under Israeli law.

The court gave the legislature a year to rewrite the law. Initially, the deadline was March 2021. Then it was extended to September 2021. However, the legislature failed to make progress on the court’s mandate — not only under the leadership of previous Prime Minister Benjamin Netanyahu (recently ousted), whose coalition always included religious conservative factions who consistently opposed any form of LGBTQ+ equality but also under the recently formed government. The new leadership was supposed to bring winds of change, but it quickly concluded that it would not be able to do much better on this front.

The new government gave its official notice to the Supreme Court that it would be politically unfeasible to advance such a bill — and the court responded only a few days later by issuing the latest ruling that the surrogacy law must be read to include single men and gay couples. The court gave six months for the Ministry of Health to engage in any necessary rulemaking to effectuate the change.

For an excellent summary of the fraught road that led up to the ruling, check out this article by U.S. surrogacy attorney Rich Vaughn of the International Fertility Law Group.

First Comes Love, Then We Skip Straight To The Baby Carriage

Israel joins the list of countries that have a patchwork of laws treating LGBTQ+ families inconsistently, at best. The latest Israeli ruling is a positive step for hopeful LGBTQ+ parents-to-be, for sure, but fascinatingly, those same couples who are now permitted to use surrogacy-assistance to expand their families, are still not permitted to marry within the country. It’s a little meshuga.

Israel does not even permit same-sex civil marriage. Marriage, in Israel, is considered a religious institution, and must be completed (same as divorce) under applicable religious rules. Gay couples may, of course, marry abroad in jurisdictions like the United States that permit it, and a foreign marriage does receive some level of recognition within the country.

Israel demonstrates that marriage equality and the right to parenthood by surrogacy do not always go hand-in-hand. In the United States we, of course, have both. Kind of. LGBTQ+ couples have a right to marry (as determined in 2015 to be a constitutional right in the Obergefell case) and are permitted to form their families by surrogacy in most states. There are exceptions, like Louisiana where the state’s questionable law permit only married heterosexual couples using their own gametes (no donor egg or sperm) to use a surrogate.

In other countries, like Spain and France, same-sex marriage is in, but surrogacy — for any sex, orientation, or marital status — is completely out. And in Russian and Ukraine, surrogacy is fine, and it is fine to compensate the surrogate, but only for married heterosexual couples.

So confusing!

This Is Really Big

Victoria Gelfand, an Israeli family formation attorney, described her reaction to the court ruling in an interview. She found the ruling almost an “unbelievable” success. She explained that this lawsuit, fighting the discriminatory nature of the surrogacy law in Israel, started in 2010 — over a decade ago! Partial verdicts and various initiatives have come and gone, without much success.

Gelfand has assisted hundreds of couples forming families through surrogacy abroad since 2005. In 2014, with a hopeful initiative in the works then, she recalls asking couples if they were considering waiting for the law to change in Israel, instead of spending more money to go abroad. Some responded that they didn’t trust the government’s agenda to change any time soon. Their pessimism, of course, was right. Now, because of the Israeli judiciary, couples in the surrogacy process abroad have a big decision to make — keep going, or wait for six months to see if this really happens. Those hopeful parents will also have to weigh how feasible it will be to move forward when a surrogate-gestated baby boom strikes Israel with greater force than ever experienced in the country since the enactment of the law on surrogacy in 1996.

With many positive signs — including the support and positive reaction of the Ministry of Health — this looks like it is the real deal. Six months from now, single men and gay couples in Israel should be able to form their families through surrogacy without leaving the country. Let’s hope nothing goes fakakta in that time.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

* McDonald’s facing $500M class action sexual harassment suit. I thought this was a family establishment? [Bloomberg Law]

* Missouri continues very American tradition of discussing how to talk about race with no spoken input from Black folk. [Kansas City]

* Suddenly, vaccinations are bipartisan. Should we expect more mandates? [The Atlantic]

* District Judge blocks Arkansas law that bans most abortions. [PBS]

* Balancing Privacy and Profit is hard to do amid COVID, but it will get done. Hopefully. [Bloomberg Law]

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

Jerking Off To A Supreme Court Decision? And a random one at that.

More Raises: For Blank Rome, Duane Morris, and Eversheds.

Have A Great Time While You Can, Summer Associates: Because it won’t last.

Explosive New Sexual Assault Case: Against a former New York Judge.

The bigger they are, the harder they fall. And Michael Avenatti was big.

In 2018, ATL named him “Lawyer of the Year” after he dominated headlines and delivered the goods. He managed to prove that Trump had paid Stormy Daniels for her silence about the affair, laundering the money through his eponymous company. And Avenatti unearthed bank records proving that Michael Cohen had used his proximity to the president to extract cash from multiple companies with business before the Trump administration.

And then … things went totally off the rails.

This month, Avenatti was sentenced to 30 months in prison for attempting to extort Nike. Next year, he’ll face charges of stealing Stormy Daniels’ book advance in New York. And today he’s on trial in California for allegedly stealing a multi-million dollar settlement won for a paraplegic client. Also bank fraud, failure to file tax returns, wire fraud, etc.

And that’s where things went even more off the rails.

Thanks to live tweets by Law.Com reporter Megan Cuniff, we know that US District Judge James Selna has just accepted Avenatti’s request to represent himself pro se, relegating his highly capable attorney H. Dean Steward to “standby counsel.”

Naturally this prompted the entirety of Law Twitter to double over laughing at Avenatti’s dogged determination to screw over one last client. And who doesn’t appreciate a good belly laugh, right?

The kerfuffle commenced a couple of hours ago, before the potential jury pool was dismissed for lunch.

Avenatti was famously arrested during his own disbarment hearing, and was suspended from the practice of law in California a year ago. Nonetheless, Steward moved that Avenatti should be able to participate as co-counsel.

But prosecutors argued that this might be confusing to the jury, and the court agreed.

Faced with the choice of shutting the hell up or exploding his case, Avenatti formally requested to represent himself pro se. Under questioning, Avenatti admitted that, in a long career as a civil litigator, he’d never actually tried a criminal case. Although he did cite to his participation in his own trial in New York just recently.

And although he confessed to being unfamiliar with all the elements of the many crimes alleged in the 36-count indictment, Avenatti got his wish. When the jurors returned, Judge Selna informed them that the defendant would henceforth be representing himself, and that that they were to take no inference therefrom.

Not being members of the jury pool, though, we will take the obvious inference that Avenatti has lost his damn mind.

Well … good luck to him!

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

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

According to a new survey of 1,200 U.S. employees by TalentLMS and The Purple Campaign, what percentage of respondents said they experienced unwelcome sexual contact online during COVID-19?

Hint: What’s most interesting is that men reported online sexual harassment much more frequently than women.

See the answer on the next page.

One of our best clients, the Dallas office of a top national firm, seeks a litigation associate with 2 to 5 years of business litigation experience to join their sophisticated Litigation practice. This is an opportunity to assume immediate responsibility in a busy trial group and to work collaboratively with partners as a key member of the team.

Deposition and motion practice experience are strongly preferred. Candidates should have a strong academic record from a nationally respected law school and an equally impressive undergraduate degree, as well as large law firm experience and excellent references. Federal District Court or Appellate clerkship(s) a plus. Strong verbal and written communication skills, including legal research and writing, are also required. Interested and qualified candidates should apply online to this posting, or email your resume in confidence, or with additional questions, to:  dallas@kinneyrecruiting.com.

Rest assured that your resume never goes anywhere without your prior approval.

One of the funny things about modern patent litigation is that there is, at least on the nonpharma side of things, a pretty narrow stable of “big” defendants that patent owners take aim at. I do not have to name the usual suspects, but they do tend to share a number of characteristics. If they are consumer-facing brands, a dead giveaway of a big defendant is the operation of their own multiunit retail stores or a presence in nationwide mass-market retail (Walmart, Best Buy, etc.), or both. Add in the major suppliers to such brands, as well as the major social media and web search purveyors and you pretty much have the list of major targets, particularly for well-funded NPEs looking for a big payday. In support of those NPEs is a veritable host of litigation funders, ready and able to deploy capital in support of the rare patent case they deem fundable. To counter this threat, most — if not all — of the frequently targeted defendants tend to have a roster of both in-house and outside counsel litigation talent to call on, as well as a willingness to litigate hard in the face of what they deem unreasonable demands by patent plaintiffs. With these capabilities supplemented by the third-party patent defense impresarios, we end up with a pretty even playing field when it comes to funded NPE v. prominent defendant big-ticket patent litigation.

Level playing field aside, cases actually getting to trial against a big defendant are relatively rare. Whether it is because the parties reached a settlement or because the defendant was successful in an IPR or via motion practice, getting to trial is unlikely in the vast majority of patent cases. While I have consistently advanced the idea that a lot can be learned from how those rare trials involving big defendants turn out, there is also a lot we can glean from the pretrial maneuverings of the parties — particularly in a case involving a disclosed litigation funder. (As to the latter, it is becoming easier than ever in certain jurisdictions to find out whether there is a litigation funder involved in some capacity since disclosure of financially interested parties is compelled under certain local rules at time of case filing.)

One such case currently pending in the Central District of California, Pinn v. Apple, fits the bill as one where a litigation funder — styled as an “investor” on the mandated disclosure — was identified early on in the matter. And as the case approaches trial, various and sundry pretrial matters, including disposition of motions in limine, have taken place. Of significant interest, in a July 14 decision by the Hon. David O. Carter, a number of rulings on motions in limine made by a special master were addressed, including with respect to discussion of the presence of litigation funding in the case, among others. While we will discuss the court’s comments on the litigation funding aspect in a bit, it was also interesting to see that the plaintiff’s motion in limine regarding the location and size of the law firms involved were granted — perhaps reflecting a concern by Pinn about having Texas-based trial counsel commented on by Apple in a California matter. In any event, the court found: “Locations and sizes of counsel and their law firms is irrelevant.” Not a surprising holding by the court, considering the wide variety of more important issues for trial in a patent case.

What about the litigation funding piece? There, Pinn had filed a motion in limine seeking to bar evidence or argument on “Attorney compensation, litigation funding, or contingency arrangements.” The special master recommended granting of the motion “regarding: (a) litigation funding (if, however, Defendant believes at trial that Plaintiff has ‘opened the door’ by presenting evidence or argument that is calculated to tell a so-called ‘David vs. Goliath narrative,’ Defendant should raise the issue at trial so that the Court can evaluate the issue at that time); and (b) compensation arrangements for Plaintiff’s trial counsel (including any financial interest Plaintiff’s trial counsel may have in Plaintiff or in the outcome of the present litigation).” Carter affirmed the special master’s conclusion, adding “that litigation funding and compensation arrangements for counsel are collateral matters and would be unduly consumptive of time at trial.” In short, Carter indicated that he has no appetite for discussion of financial interests at trial, irrespective of the local rule in his district compelling disclosure of those interests. At minimum, his ruling suggests that the utility of early financial interest disclosure is most pronounced early in a case, but that by the time trial is imminent, such disclosures are a sideshow.

This latest ruling on admissibility of funding arrangements will be heartening to litigation funders, as it serves as further proof that there is little appetite in many judicial quarters for making funding arrangements a centerpiece of patent cases. Informed perhaps by a recognition that patent trials are often compressed enough for time due to the myriad issues requiring attention, it is clear from Carter’s ruling that carving out additional time at trial to deal with financial interests — whether they be of a litigation funder or contingency counsel or both — is a nonstarter, at least in his court. Considering how the weight of decisions regarding discovery around litigation funding arrangements continues to illustrate just how little interest most courts have around the topic, this decision is in line with a developing consensus that patent cases are crowded enough with issues requiring adjudication so as to make spending time on litigation funding arrangements a hard sell — during both discovery or at trial itself. Put another way, if the case itself is the show you have on your DVR, litigation funding is the commercial you fast forward through.

Ultimately, decisions like the one in Pinn are yet more evidence that big defendants must be strategic about their approach to funded plaintiffs, at least with respect to allocating resources toward discovery regarding litigation funding arrangements. Yes, it is good to know as a big defendant that the case against you is funded; even better when you know who the funder is. But unless there is reason to believe that the funder has settlement control or input, or that a separate deal with the funder that would get them to withdraw funding is advisable or even possible, there is really not much use for spending defense dollars toward pressing the issue, at least under the current legal framework. Better to take that knowledge and see whether you can drive early settlement, before the funder’s expensive capital alters the financial landscape of the dispute too much. At the same time, because of the lack of empirical evidence around the deployment of litigation funding in patent cases, the prevailing wisdom that patent cases are harder to settle if a funder is involved might also find support in the fact that Pinn is headed for trial. For now, however, we know for a fact that at least in one California court, litigation funding is a “collateral matter” and not worth a minute of trial time to pursue.

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.