Author: TSA Press

* A lawyer who got ejected from the Second Circuit last year is asking the Supreme Court to hear his case. Since the high court is conducting arguments by phone currently, maybe he’ll just get hung up on. [New York Law Journal]

* A lawyer who stole $128,000 from a mentally ill client has been suspended from practice. [Bloomberg Law]

* Missouri has become the first U.S. state to sue China over the COVID-19 pandemic. Not sure this is a distinction to be proud of. [U.S. News and World Report]

* A Texas judge has been forced to take down a rainbow flag after an attorney filed a complaint and compared the symbol to a swastika and Confederate flag. [Hill]

* Attorney General Barr has called stay-at-home orders “disturbingly close to house arrest” and the Justice Department might take actions against states that go too far. [NBC News]

* Lawyers are having a difficult time determining if COVID-19 is an act of God. Maybe they should subpoena the Almighty to get more clarity… [Bloomberg Law]

---

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.

Zimbabwe has 20 universities and a number of polytechnics. Once well-reputed, the quality of education they offer has been called into question, not least when former president Robert Mugabe’s wife Grace was improperly awarded a PhD by the flagship University of Zimbabwe seven years ago.

Now though, with its doors closed to students, UZ is producing hand sanitisers and there are plans for it to produce intravenous fluids.

Helping save lives

Africa University, just outside the eastern city of Mutare, has a Facebook feed full of pictures of the hand sanitiser the institution’s department of public health and nursing is producing with funding provided by Old Mutual Zimbabwe, a finance company. The department expects to be able to provide 550 bottles per day.

Lab technician Chipo Mazangairi told the university’s website: “I see it as helping save lives and serve the nation.”

In the north of the country, the Chinhoyi University of Technology – of which young opposition MP Joana Mamombe, 27, is an alumnus – has got its Fashion Textile Department producing 3,500 face masks per day.

Prototype ventilator

Meantime – and to some scepticism – the Harare Institute of Technology has produced a prototype oxygen ventilator. Zimbabwe, like many countries in Africa, is critically short of the machines.

Officials at the HIT say their prototype is still to undergo trials.

“With this unit we can begin to respond to patients as they come in. As we respond to them, we can try to reduce the burden on the ICU-grade ventilator units,” said one of the HIT designers, Edmund Maputi, in a video posted on the institute’s Facebook page.

Zimbabwe universities are more often seen by locals as degree factories in a country where skilled job opportunities are limited due to economic turmoil. Their function as generators of research and innovation is less well known.

Ivory towers no more

“Are we turning universities into production plants and test centres now?” asked one bemused Twitter user, when it was reported at the end of last month that the National University of Science and Technology’s laboratories – located in Bulawayo – were suitable to test for Covid-19.

Other Twitter users jumped in to defend the new role for the country’s tertiary institutions.

“That’s what universities are for. Research and availing their knowledge and skills to the people. Not mere ivory towers giving people papers, gowns and caps,” said one.

“This is a positive thing with our universities,” Norman Matara, secretary general of the Zimbabwe Association of Doctors for Human Rights told RFI.

“They were producing academics who do not actually provide practical solutions to the problems that we are facing in the country. This Covid-19 pandemic has actually brought about the innovation – that universities play a positive role in terms of assisting the nation.”

Import substitution

President Emmerson Mnangagwa himself says the coming together of local universities and companies to provide essential materials for the health sector is a “silver lining to the present global health crisis”.

“It is commendable that local industries and universities have become hubs for import substitution,” he said in a televised address to mark the country’s Independence Day on Saturday.

Zimbabwe, at the last count, had fewer than 30 cases of coronavirus, three of them fatal. But with limited testing going on, there are fears the disease is a lot more widespread.

Import substitution will prove vital in helping the country weather the storm.

On April 18, as Zimbabweans look back on 40 years of independence from British colonial rule, it is a fitting time to reflect on the country’s human rights record. Born a few months before independence, I have no personal experience of the liberation struggle. But my father often regaled me with colorful accounts of the fight for justice, equality and non-discrimination. From those accounts and my experience as a lawyer and human rights advocate, it seems that Zimbabwe has fared poorly in its duty to respect and ensure basic rights and freedoms.

For the first 37 years of independence, until November 2017, Zimbabwe was under the iron-fist rule of one man, the late President Robert Gabriel Mugabe. For some, Mugabe remains a hero, for championing the liberation struggle against colonial rule, empowerment of the landless poor, and his investment in education in the early years of his rule.

But others remember Mugabe’s rule for widespread human rights violations, near-total impunity for those responsible, and destruction of the country’s economy. Even as Mugabe’s government promoted universal access to education and health, and ensured the country’s food security in the early 1980s, it used manipulation and repression to hold on to power. From the time the country became independent, the ruling ZANU-PF party has used its supporters, as well as the army and the police, to commit acts of violence against opponents and use state institutions for political ends.

The first post-independence overt military involvement in serious abuses in Zimbabwe was between 1982 and 1987, when the Mugabe government deployed a section of the army, the Fifth Brigade ostensibly to quell dissident disturbances in the Midlands and Matabeleland provinces. This unit, trained by North Korean instructors, was code named “Gukurahundi,”– the rain that washes away the chaff.

It appears ZANU-PF used the pretext of the disturbances to unleash violence on the supporters of the Zimbabwe African People’s Union (ZAPU) to ensure the dominance of ZANU-PF and to render ZAPU irrelevant. According to the Catholic Commission on Justice and Peace, the Fifth Brigade carried out widespread atrocities such as torture and extrajudicial executions of more than 3,000 people. The ZAPU leader, Joshua Nkomo, and human rights groups put the figure at 20,000.

Mugabe in 1983 set up the Chihambakwe Commission of Inquiry into the Gukurahundi atrocities. Its damning findings were leaked but never officially made public and its recommendations on the security sector were never carried out. In 1988 the ZANU-PF government issued Clemency Order Number 1, granting amnesty to all those involved in human rights violations  between 1982 and 1987, benefiting mainly the army and the state security agency, the Central Intelligence Organization (CIO), which at the time of the atrocities was overseen by the current president, Emmerson Mnangagwa.

Successive election periods were characterized by impunity for widespread political violence mainly  by ZANU-PF, its allies, and government agencies, including sections of the army and the CIO. In 1993, Mugabe granted amnesty to two state agents convicted of attempted murder of  Patrick Kombayi  an opposition candidate for   the 1990 elections. In 1995 Mugabe again issued an amnesty for all politically motivated crimes and human rights abuses, including beatings, arson, kidnapping and torture. On October 6, 2000, following widespread political violence during parliamentary elections, Mugabe pardoned those responsible for politically motivated crimes committed during the January-July 2000 campaign period.

In the lead-up to the June 2008 presidential runoff elections, elements in the security forces and ZANU-PF supporters orchestrated widespread political violence throughout the country against the opposition Movement for Democratic Change (MDC) led by the late Morgan Tsvangirai. This violence resulted in the killings of hundreds of perceived MDC activists and supporters and the beating, torture, and forced displacement of thousands more.

In 2000, with support from the government, ZANU-PF and its allies carried out violent invasions of white-owned farms in which several farmers and farm workers were killed. In 2005 the government carried out an unprecedented campaign of forced evictions in urban areas,  “Operation Murambatsvina”  — which means “clear the filth” in Shona, causing a massive internal displacement crisis in which an estimated 700,000 people lost their shelter, livelihood or both. In 2007 incidents of police violence and intimidation increased significantly, culminating in the arrest and beating of more than 50 opposition activists in police custody. As with previous state-sponsored political violence, the authorities failed to hold accountable those responsible, entrenching impunity within the security forces.

In addition to the close political alliance between the leadership of ZANU-PF and the security forces, another driving force for political interference and human rights abuses by security forces appears to have been the need to protect ill-gotten wealth and other vested economic interests. This has included control of revenue from Marange diamond fields, where sections of the army directly owned and operated mining companies.

Since taking over after Mugabe was forced out of power in November 2017, President Mnangagwa has repeatedly voiced his commitments to human rights reforms.  But his administration remains highly intolerant of basic rights, peaceful dissent, and free expression. The security forces have continued to commit serious and intensified violations, including violent attacks, abductions, torture, and other abuses against the opposition and civil society activists.

The Motlanthe Commission of Inquiry, set up by President Mnangagwa following the post-election violence of August 1, 2018, found that 6 people died and 35 others were injured as a result of actions by the state security forces. Some commission recommendations, which have yet to be carried out, include ensuring that those responsible for the violence  are held accountable and that a special committee is established to compensate families of those who were killed and  who lost property.

Human Rights Watch investigations found that state security forces used excessive and lethal force to crush nationwide protests in January 2019. During and after the protests, the forces fired live ammunition that killed 17 people, and at least 17 women were raped. No security force personnel have been arrested or prosecuted for these abuses.

Even outside of politics, Zimbabweans have not fared much better in terms of their rights. For decades, Zimbabwe has grappled with a shortage of skilled professionals and healthcare staff and  an eroded infrastructure with ill-equipped hospitals and a lack of essential medicines and commodities.  Violations of the right to food, through acute food shortages, persist. According to the United Nations, 7.7 million people (60 percent of the population) are food insecure. Around 5.5 million of these people live in rural areas and 2.2 million in urban areas.

Last September, the Harare City Council shut down its main water treatment plant, known as Morton Jaffray, due to shortages of imported water treatment chemicals and low water levels at Lake Chivero,  southwest of the city. This exposed millions of Harare residents to the risk of water-borne diseases like cholera, which have ravaged the city in the past. In 2008, a cholera outbreak in Harare claimed more than 4,200 lives. The conditions that contributed to the spread of cholera during the latest outbreak in September 2018, and another outbreak a decade earlier, still exist.

The Zimbabwe Human Rights Commission, chaired by Dr. Elasto Mugwadi, seems to be a silver lining in the dark cloud of rights abuses in the country. The commission, with constitutional responsibilities to ensure the promotion and protection of human rights in Zimbabwe, has boldly carried out extensive human rights investigations and has frequently spoken out against abuses by state agents. The commission investigated the 2019 public protests against the economic collapse and their aftermath and concluded in a report published in September that armed and uniformed members of the Zimbabwe National Army and the Zimbabwe Republic Police systematically tortured suspected protesters.

Zimbabwe needs more state institutions that deliver justice. The judiciary and the prosecution authority need to be independent, professional, and non-partisan to ensure that human rights are protected and promoted.

Zimbabwe authorities need to reform the security forces, completely end their involvement in partisan politics, and ensure that they act professionally, and in a rights-respecting manner. For the serious human rights abuses since independence – including arbitrary arrests, torture, murder, and rape — the government should order prompt investigations. It should carry out recommendations stemming from these investigations and by commissions established to protect rights.

This includes prosecuting implicated members of security forces in accordance with national law and international standards. Given the scale of human rights abuses in which security forces are implicated, the establishment of an independent complaint system under the 2013 constitution, to receive and investigate complaints from members of the public, is long overdue.

Reform should include human rights training and education, with international assistance, for members of the security forces and other state agencies. All training should be consistent with international human rights standards, such as the United Nations Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

With the necessary political will, it is possible for the Zimbabwe government to build on its existing constitutional human rights framework, to enable millions of Zimbabweans to realize one of the main objectives of the struggle for independence, the enjoyment of fundamental human rights and freedoms.

Post published in: Featured

As reports of new infections and deaths because of Covid-19 trickle in and the nation continues a broad lockdown, Zimbabwe is facing its worst economic crisis in more than a decade. Regional economic analysts say there is nothing that points to relief in the short term. International medical researchers are racing to find a vaccine to the coronavirus, and poorly resourced African countries such as Zimbabwe can only pray that a breakthrough comes soon.

Zimbabwe had recorded 23 coronavirus cases and three deaths as of April 16, but many fear that the true numbers could be much higher because of the lack of Covid-19 testing capacity here.

The Zimbabwe Association of Doctors for Human Rights raised an alarm about the lack of government preparation and the absence of testing for coronavirus on April 7. In countries with more efficient health-delivery systems, a quick turnaround of Covid-19 tests has been credited with saving lives.

But in a country of 14.5 million people, Zimbabwe had only one testing center, located in the capital, Harare, until one was established in Bulawayo, the nation’s second city, on April 12. That means blood samples of suspected Covid-19 cases from across the country were being sent to the capital across the country’s inadequate road system.

Zimbabwe had recorded 23 coronavirus cases and three deaths as of April 16, but many fear that the true numbers could be much higher because of the lack of Covid-19 testing capacity here.

Tweet this

Government doctors have already gone on strike to protest the lack of personal protective equipment, and other life-saving equipment like ventilators are difficult to find in government hospitals.

Zimbabwe authorities instituted a 21-day national lockdown on March 30 to reduce public transmission of the coronavirus. That measure was always going to be difficult to enforce in a country where labor unions have said as much as 90 percent of the population do not have jobs in the formal economy.

Effie Ncube is a human rights defender and coordinator of Citizens Covid-19 Monitor, an initiative launched by residents in Bulawayo to address the pandemic. “Government failed us, as the country had ample time to put countermeasures [in place],” he told America.

Owing to the lack of food security and access to tap water in the majority of Zimbabwe’s households, “the lockdown itself was going to be extremely difficult to enforce,” Mr. Ncube said. “People cannot sit in their homes without ‘mealie meal,’” he added, referring to an easy-to-prepare porridge that is a staple of the Zimbabwe diet.

The majority of Zimbabwe’s poor subsist in the informal sector where incomes are not guaranteed. It was no surprise when the lockdown was violated countrywide, provoking acts of police and military brutality.

“Zimbabwe’s response to Covid-19 has been sloppy,” said Dewa Mavhinga, the southern Africa director for Human Rights Watch. He pointed out in an interview conducted over email that the Zimbabwe Association of Doctors for Human Rights had to go to court for an order “compelling the government to provide health workers in all public hospitals with personal protective equipment and adequately equip public hospitals to combat the Covid-19 outbreak.”

The majority of Zimbabwe’s poor subsist in the informal sector where incomes are not guaranteed. It was no surprise when the lockdown was violated countrywide, provoking acts of police and military brutality.

Tweet this

“The heavy-handed enforcement of the lockdown by the police and army raises questions on whether the government is fully aware of the adverse impacts of its Covid-19 response on food security,” he added. Violations of the lockdown have continued across the country as people leave their homes to look for food even as Zimbabwe’s president pondered whether or not to follow other southern African neighbors that extended their national lockdowns.

In a statement defending the government’s preparations for a potential Covid-19 outbreak, Vice President Kembo Mohadi, chair of Zimbabwe’s ad hoc committee on Covid-19, suggested U.S. sanctions first instituted in 2003 were hampering the government’s response. “As you know, we are under sanctions, and we don’t have everything that is required,” Mr. Mohadi said.

“What we have is our own resilience as Zimbabweans,” he said. “What we have is our own way of looking at this thing and observing what is supposed to be done so that we minimize as much as we can the spread of this pandemic, and I am sure together as a team…we are going to prevail.”

In 2008, Zimbabwe endured world-record hyperinflation—the World Bank describing Zimbabwe’s rate as something rarely seen in a country not at war. Because of its dilapidated infrastructure and a poorly funded health service that regularly features walkouts by doctors and nurses, locals have for years known that they cannot afford to get sick. Even death itself seems beyond the reach of many in Zimbabwe because a coffin can cost anything above $200 (U.S.), more than a teacher’s monthly salary.

“Zimbabwe has experienced a gradual recession that has led to the closing of industries and companies, foreign investor flight [and] job losses, leading to an escalation of poverty,” the Zimbabwe Catholic Bishops’ Conference noted in a pastoral letter released on April 2.

Because of its dilapidated infrastructure and a poorly funded health service that regularly features walkouts by doctors and nurses, locals have for years known that they cannot afford to get sick.

Tweet this

“Now with Covid-19 there is need for outright and vigorous efforts to fight and prevent this pandemic, which if it is not carefully handled in our country, may spell doom to the whole of our nation, where hospital structures are not fully equipped and ready to combat it,” the bishops said. “Our only line of defense is prevention. Let us be active and save lives.”

Covid-19 has only reminded citizens just how bad things are in Zimbabwe three years after the fall of its longtime strongman Robert Mugabe, ousted in a coup in 2017 after 37 years in power. The late president had been widely blamed for ruining what was once considered one of Africa’s brightest economic hopes.

President Emmerson Mnangagwa took over in 2017 with the promise of undoing Mugabe’s poor economic and human rights record, issuing lofty pronouncements about turning the country into a middle-class economy by 2030.

Critics have by now dismissed those ambitions as mere populism. Little has been achieved toward that goal of rapid economic transformation. Zimbabwe’s Catholic bishops have joined other civil society actors alleging that rights abuses have escalated under the new administration. Its human rights record so far has not helped efforts to attract international investors, Brian Nichols, the United States ambassador to Zimbabwe, said in a recent statement.

As if following the script of Mugabe’s misrule, the current administration is failing to pay government workers, allowing poverty levels to spike and tolerating human rights abuses. The sometimes violent methods used to enforce the coronavirus lockdown have only reminded citizens of the police brutality normalized during the Mugabe years.

Government officials were already aware of simmering public anger because of economic hardships accelerated by the crisis—a loaf of bread that last year cost $1.45 in Zimbabwean dollars commanded as much as $34 last week. Its decision to lock down the population may have had as much to do with containing public anger as limiting the spread of the coronavirus.

“We are already dying of hunger. How can we be afraid of coronavirus?”

Tweet this

But in a March report, the Zimbabwe Peace Project, a human rights nongovernment organization, said there was an escalation of rights abuses soon after the lockdown was announced.

The project recorded a total of 145 human rights violations during the month of March alone. “These included Covid-19 related violations, intimidation and harassment, [and] discrimination, among others,” the report said.

Amid the gloom, Mater Dei Hospital, established by Franciscan nuns in 1953 in Bulawayo, was identified by well wishers, including the former education minister David Coltart, as the only institution that had the capacity to deal with coronavirus cases.

Catholic hospitals have been on the forefront of health delivery in Zimbabwe since even before the country’s independence in 1980; Covid-19 seemed to serve a reminder of the work being done by faith-based health institutions.

Campaigners were quick to mobilize funds locally and abroad for Mater Dei Hospital to serve the city of Bulawayo when, according to city health officials, the Zimbabwe central government was failing to upgrade its own hospitals in readiness for an anticipated wave of Covid-19 patients.

“We are already dying of hunger. How can we be afraid of coronavirus?” complained Gilbert Siziba, a Bulawayo resident, echoing the sentiment of many residents who have continued to breach the lockdown and left their homes to find food and to earn a living.

Bad as it is, Covid-19 is not the only hardship facing Zimbabweans. An ongoing drought has depleted reservoirs so badly that the municipal government in Bulawayo announced it would be extending a program to conserve water by reducing access. Some communities around the city will have to brace for up to eight months cut off from the municipal water supply.

“How can they do this to us in the middle of coronavirus? Have they not told us to wash our hands regularly as a way to avoid contracting the virus?” asked Jane Shambare, a housewife and mother of three. According to Bulawayo’s mayor, Solomon Mguni, the city council has asked the central government to declare the water crisis a national disaster, a designation that would unlock government funds to help address the issue. Mr. Mguni said city officials have so far received no response.

Without having first dealt with these and so many other underlying public health concerns, said Mr. Ncube, it remains unclear how the national government will be able to respond to a pandemic spreading across Bulawayo, a city of two million, and other high-density communities across Zimbabwe.

That’s why the current chaos caused by the coronavirus could have wide-ranging economic repercussions. A lot of businesses have seen huge downturns in their revenue in a short space of time, which in turn means they will be paying a lot less tax next year. This, coupled with the increased costs levied at the government in order to deal with the coronavirus, means that there could be a big shortfall over the next 12 months.

One of the biggest industries to suffer is online betting. With Kenyan online betting sites providing a big proportion of tax revenue for the country, this current crisis is likely to see a lot of African nations increasing their national debt in order to pay for coronavirus security measures. With all of this in mind, let’s take a closer look at the tax levels across Africa.

Latest Tax Figures

According to the latest figures from the OECD, Africa is actually well below the global average in terms of the amount of tax revenue generated. With the worldwide average standing at $409 billion per year, and the current average across Africa being well below $200 billion per year, there is a big shortfall in tax revenue getting brought in.

The instability caused by the coronavirus means that the African average is likely to fall for next year, but there’s a high chance that this will occur in other countries across the world, too. The economic impact of this virus could go on to make the 2008 global crash look like a minor event.

In terms of tax revenue, Kenya, Nigeria and Morocco are three of the biggest earners across Africa. They are also three countries that have a relatively strong tourism trade. So, not only will there be a shortfall in tax revenue, but income from tourism in these countries is also likely to see a drop over time, too.

Industries that have been Hit Hardest

One of the biggest industries to suffer during the coronavirus’s colossal upheaval is the gambling industry. This is especially worrying to countries such as Kenya, where tax revenue from gambling is a very big earner. As the coronavirus has led to lots of sporting events being cancelled, gambling has taken a sharp downturn for the time being.

For Kenya in particular, this is a big problem. Why? Because taxes from online gambling are taken two ways in Kenya. The first is a 20% tax rate on all turnover by gambling companies. Tax is placed on turnover instead of profit as an attempt to stop companies from hiding profits through unnecessary expenses, which is a sneaky way to avoid paying tax.

There is also a 20% tax on all wins which players receive when taking part in online gambling. As there is almost a blanket ban on sporting events, this has reduced the tax revenue for Kenya in a big way. Depending on how long this current crisis takes, it could lead to gambling companies going out of business, which means there will be big gaps in the market once the crisis is over.

These gaps, however, will cause a major problem, as tax revenue won’t be generated until they are filled. That could take a lot of time.

The tourist industry is another aspect that will be hit hard across African countries. Not only does tourism bring in a lot of money, with tourists spending lots of cash on their travels, but it also generates a large amount of tax. The profits from tourism companies are all taxed in African countries, and with tourism currently on hiatus, these taxes won’t be paid until the industry is able to get up and running again.

Post published in: Featured

As the legal industry continues to navigate uncharted waters and biglaw offices remain physically closed throughout much of the world, many of our candidates have asked us what the interview and onboarding process looks like during this trying time. Although dramatically throttled down, lateral hiring at major firms and premier boutiques has not entirely ceased and firms are actively interviewing. We continue to represent candidates, primarily in bankruptcy, executive compensation, specialty litigation, life sciences, healthcare, and other niche practices. As you would expect, the interview process has shifted toward cell, Skype and Zoom calls, but candidates continue to navigate the process toward a successful result. So, what if you are one of the lucky candidates to actually interview, receive, and accept a job offer with a major law firm during this weighty time of COVID-19? How will your new firm bring you onboard and what should you expect once you start? We asked two of our very recently placed candidates: both mid-level financial restructuring associates who joined Amlaw 50 law firms (one in Texas, one in New York) about their experiences virtually onboarding and working remotely at their new shop. Here are the takeaways:

The experience has been surprisingly smooth. Our Texas candidate conducted orientation via phone and Skype over two days filled with set appointment times. He also had a call with his firm’s IT department and they FedEx’ed him a work computer that same day. Upon receipt, he had a follow-up call with the IT department and they had him up and running a few hours later. Our New York candidate also recalled a smooth transition. The law firm FedEx’ed his laptop to the firm’s Hong Kong office (where he is currently stuck) and he was able to onboard remotely with the firm’s IT team in NY. 

In terms of getting first work assignments, our Texas candidate tells us that this process has not been all that different from his previous firm. His practice group dials-in for a team meeting every week, and since he is working with partners in various offices, they communicate via phone and (mostly) email. For one of his work matters, he says the project team has a weekly Zoom call offering another opportunity to interact with new colleagues in various offices. 

But what about the more personal aspects of joining a new firm, such as getting to know your colleagues on a personal level? Our Texas candidate tells us that it “really hasn’t been a problem getting to know my team.” He has received personal calls from most members of his practice group offering assistance in getting to know more about the firm. He has also spoken to other attorneys in his office who have offered recommendations about his new city. In all, our Texas candidate describes his arrival as “very friendly.” Our NY candidate says the firm’s associates and partners have been very supportive of his situation and other than the time difference, as he acclimates to working NY hours, his transition to working remotely with the NY team has been seamless. 

And might there even be some benefits to onboarding and working remotely? Our Texas candidate says, “I think I have more time in my day right now. My commute is just a walk down the hallway. It used to take me up to 45 minutes a day. And my daily life is also less expensive. I am not eating out or buying daily lunches.” He did mention that he made an exception for a BBQ brisket takeout order.

His advice for those going through the lateral process: “I would say to just relax. Law firms understand this is a very weird time right now and they are responding the best they can. It is in your and their best interest to get you on board as quickly as possible, so try to relax and be patient. And now that firms have had a month to deal with this unprecedented situation, I think for attorneys starting in April or May, [onboarding remotely] will be an even smoother process.” Our NY candidate, who also has a down-to-earth personality, agrees with the sentiment that it is best to relax and make the most of the situation. 

But, of course, not all lateral transitions are going so smoothly in this unprecedented time. A candidate of ours in Brazil was set to start at her firm in March, but has been delayed due to the closure of the OAB, the Brazilian Bar Association, the authority granting foreign attorneys authorization to practice. So, as this candidate calmly sits in wait for her final approval to begin practicing in Brazil, she is using this downtime to polish her Portuguese language skills, which will help tremendously once she is able to start at her firm. 

The takeaway is that law firms are nimble, IT departments have more tools than ever, associates are generally tech savvy, and certain practice areas continue to churn during this pandemic. Efficient, remote onboarding of attorney hires is a natural extension of these factors. And with the diminishment of ‘20 summer associate programs and delay of first-year starts in the fall, we expect the lateral market to continue to improve (albeit through competitive and narrow opportunities, at first) once stability returns and firm personnel are able to return to their physical spaces. For those seeking any career advice or representation in a lateral move, you know where to find us. Just like you, we are at home and thankful to be able to continue doing our work. We look forward to connecting. 

When Sam Houston ran across Representative William Stanbery on the street in 1832, he viciously beat the Ohio congressman with his cane. Stanbery pulled a gun on Houston, but it misfired prompting Houston to wail on Stanbery even more. Then Houston went to the theater, leaving the bloodied Stanbery in the street. Houston was convicted in the ensuing trial, despite the efforts of what famed attorney?

Hint: While an accomplished lawyer, many know him better for his music career.

See the answer on the next page.

Whether you want to believe it or not, the sheer amount of material resources that passes within humanity’s current reach in space, speaks for itself. These resources include materials already in abundance here on Earth, such as iron. But there also exists an inexhaustible amount of precious metals that are currently classified as “rare” on Earth such as platinum, palladium, and iridium. Moreover, exploiting human labor in order to obtain these materials does not make any economic sense in the harsh environment of space where robots are far cheaper to functionally sustain. In addition to these raw materials, copious amounts of water can also be extracted and utilized for rocket fuel. Which brings me to another inexhaustible resource in space humanity can already extract: energy.

The most obvious, and abundant supply of energy in space is our sun. The International Space Station which has maintained constant human presence in space for decades currently runs on more solar energy than it needs, enough to power 40 homes in fact. When you combine this limitless source of energy with our current ability to extract inexhaustible amounts of raw materials, you can understand how we can already begin to start making powered structures in space that can take the form of massive factories or areas that can maintain huge agricultural capabilities, all powered by an inexhaustible sun.

But in addition to solar energy there also exists fossil fuels in inexhaustible supply within our solar system. As Charles Wohlforth and Amanda Hendrix point out, on Titan, boundless oceans of fossil fuels exist under a protective nitrogen-rich atmosphere. We are probably decades out from sending humans to live on Titan, but sending machines is already within our current capabilities. In other words, right now we possess the technological ability to create hordes of robots that we can send to Titan to extract literally inexhaustible amounts of fossil fuels. All without having to impact fragile Earth ecosystems. Again, this is not science fiction, but our current reality.

Of course, sending hordes of resource harvesting robots to Titan and back would take years to plan and execute. Moreover, obvious realities mean there are many hurdles and problems humanity would have to overcome in order to achieve this level of resource allocation. These institutional, rather than scientific or technological hurdles are what Wohlforth and Hendrix consider to be humanity’s largest barriers to achieving inexhaustible abundance, including “an indifferent political establishment.” To put our institutional indifference to space in perspective, the United States currently spends around $51 billion annually to wage a colossally failed War on Drugs. NASA, meanwhile, gets less than half that level of funding. In other words, our society has chosen to prioritize locking people up in violent cages as a response to ingesting products less harmful to society than legally available alcohol, at twice the level we fund the agency tasked with getting us to space, and a limitless resource reality.

The only reason I still have hair from not ripping it out in a constant fit of rage at the callousness of our current fiscal priorities is because I also know human progress toward becoming a spacefaring species is inevitable. Indeed, market forces are already taking over without me having to convince anyone. In other words, even if I still rage at the current level of human stupidity that stunts the process, I still have a lot of reasons to be confident humanity will get to the abundance of space relatively soon. What’s left to discuss is why it matters that we prioritize this process more than we currently are.

But if a once-in-a-century pandemic, where the threat of human contact is so overwhelming that otherwise singleminded, nonaltruistic corporate entities are voluntarily shutting down rather than risk overwhelming basic human health systems, does not convince a majority of the country to prioritize access to the limitless reality of space, then there are probably no other drastic events that can do so. This means a slower process of gradually winning over hearts and minds through continuous appeal and basic, capitalist greed is all one can expect to get us there. I just hope I have hair left by the time we get around to prioritizing it.

---

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Compliments of Lex Machina, I was fortunate to get an early look at its just-released 2020 Trade Secret Litigation Report, covering the past decade in trade secret litigation in district courts nationwide. Because of the passage of the Defend Trade Secrets Act (“DTSA” — signed into law by President Barack Obama in May 2016) during the coverage period of the report, reviewing it is especially useful since it allows us to consider what changes in trade secret litigation the DTSA has wrought. Put another way, by focusing on the developments in trade secret litigation post-DTSA, we can acquire some useful insights into “modern” trade secret litigation as it has developed nationwide.

Before diving into the report’s findings, some thoughts on trade secrets generally, from two perspectives. First, from the perspective of a litigator who has handled trade secret misappropriation cases in federal and state courts: Trade secret cases are fun to litigate, especially when they involve alleged theft of technology. In some ways, they share the best characteristics of patent cases, in terms of presenting the opportunity to engage experts and acquire a deep understanding of valuable innovation. Likewise, trade secret cases, as with their patent brethren, demand learning about the competitive dynamics in the client’s industry, an inquiry that I have always found invigorating.

At the same time, trade secret cases can also mimic some of the more distasteful aspects of patent litigation, starting with the potential for unrealistic expectations by the IP owner as to the value of their contribution or the damage done by the alleged misappropriation. Another difficulty that trade secret litigation often presents is the potential for interminable fights over what the contours of the alleged trade secrets at issue actually are, an exercise in unproductive posturing often exacerbated by procedural tricks or difficulty in getting the court onboard with prioritizing the endeavor. This is not to say that zealous litigation around the identity and scope of the trade secret at issue is not warranted. Only that, as with claim construction in patent cases, the path to resolution of this threshold issue can sometimes resemble taking the smelly staircase rather than the sleek elevator to get up to your hotel room. (Remember hotels?)

Second, from the perspective of someone who teaches trade secrets to high school students as part of a year-long IP survey course: Teaching trade secret law can be tricky. On the one hand, students readily grasp the value to their owners of the classic trade secret examples like the Coca-Cola or Mrs. Fields recipes. But perhaps because of their lack of workplace experience, the idea that much of trade secret law revolves around employment contracts and questions of employee mobility can offend the sensibilities of younger students. At the same time, the students do tend to get their moral ire up at prominent examples of misappropriation, such as clear-cut corporate espionage. That same ire, however, was strangely missing when I discussed with them the ongoing case between luxury hotels in Beverly Hills that I profiled in these pages last month. (The Peninsula doesn’t want my students on their jury, if that case ever gets that far.)

The report, however, confirms that employment-related issues and trade secrets are often intertwined. A connection that manifests itself in a number of interesting ways. For example, I was a bit surprised to learn that the most active current plaintiffs in trade secret disputes are “insurance and financial services companies” because they often “use a licensing or franchising system where individuals or small groups maintain privately owned offices using the companies’ name and materials.” Which results in misappropriation claims when users “fail to pay the requisite fees or move to another company without returning the materials.” Less surprising was the fact that many trade secret cases also include claims for breach of contract, either in the form of an NDA violation or a failure to abide with an employment contract’s provisions; the latter usually when an employee departs for a new opportunity, but with a fully loaded thumb drive in the back pocket, for example.

Considering the employment-related nature of many trade secret claims, it was not a surprise to see that the most active law firms handling trade secret cases “tend to be law firms known for their employment practices.” Or that trade secret cases are widely distributed nationwide, even as the “most active districts tend to be large population centers,” where large corporate employers and trade-secret savvy startups are likely to have offices. Moreover, the resource imbalance between trade secret owners and ex-employees accused of misappropriation is a major contributing factor to the high numbers of trade secret disputes that are resolved by consent injunction. It is probably also a factor in the high 80% grant rate for permanent injunctions in contested cases, especially considering the ease in showing irreparable harm to the trade secret owner if the trade secret misappropriation is allowed to continue. Finally, it probably also contributes to the fact that damages in trade secret cases that do not involve other claims trend to the lower side, at least in relation to patent disputes. In short, trade secret cases tend to settle or resolve in favorable terms for the IP owner when an employee defendant or their new employer can’t afford a protracted fight.

Thanks to the data available from Lex Machina and others, it is easier than ever to quickly get a snapshot of historical litigation activity concerning trade secrets. While the past decade introduced a new paradigm with the DTSA, it also provided some prominent examples of the importance of trade secrets in protecting developing technologies — such as the mega-dispute between Google and Uber on self-driving car technology. At the same time, the stats are clear regarding the origin of most trade secret disputes in employer-employee relations. Considering the major changes the ongoing pandemic has already brought to the modern “office,” it will be very interesting to see what impact the changing workplace dynamic will have on trade secret cases in the near future. Until things shake out, we should remember that learning from the past is perhaps the best preparation for an uncertain future.

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.