Author: TSA Press

As we get deeper into the thick of the economic upheaval that’s been caused by the coronavirus outbreak, Biglaw firms have been faced with a cruel sort of choose your own (mis)adventure game. From cuts to partner draws and distributions, associate and staff salary cuts, benefits cuts, employee furloughs, and employee layoffs, everything is on the table.

Which will your law firm choose?

We recently heard about an Am Law 200 firm that seems to have taken a bit of a smorgasbord approach to its pandemic reductions. We’ve been told that equity partners at Hodgson Russ almost immediately reduced their draws by more than 30 percent as soon as they had to leave the office environment to do work. Sources say that the following cost-cutting measures at the firm will take effect next week:

• Compensation for all employed attorneys will be reduced by 15 percent;
• Compensation for all executives/director positions will be reduced by 15 percent;
• Compensation for all other employees will be reduced by 15 percent;
• Employees with little/no work who cannot work remotely will be furloughed; and
• All 401(k) matching for employees are indefinitely suspended.

Managing partner Rick Kennedy confirmed these measures, noting the following:

While partner compensation was immediately reduced by more than 30% at the outset of the pandemic, we have, until April 13, kept our entire work force in place at full compensation. We view today’s steps as measured, prudent, and necessary to remain resilient for our clients and colleagues. We hope the pandemic subsides and the world returns to some sense of normalcy very soon. In the meantime, all of our attorneys are fully operational and working remotely. Our clients remain of paramount importance, and clients should expect the same excellent service they are accustomed to despite the current challenges.

We wish the best of luck to the firm as they work through these trying times.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

---

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

We may feel like we are drowning in news, and articles, and thoughts, and social media pieces about the virus (since we are). I’ll try not to add too much to that but use the virus for a point I’ve made before: while we may be in a so-called “thought” profession, we are not beings of pure intelligence, like some race from the original Star Trek series. Those minds are in bodies, and we have emotions, and we need to tend to them. One of the things which my colleagues and I often discuss is the physical reality to our job. Ordinarily, that might mean making sure to take a quick walk every hour, or to actually use our standing desks, or just making sure that quick and healthy snacks are available when we’re in the middle of a crazy day.

The present not-so-ordinary reality where some, like we lawyers, are able to do a lot of work from home, makes this point painfully clear. At least if you go to the office, you might walk a bit to the train, or to go out to get lunch, or even down some long hallways in your office building. When the commute for many of us now can involve collapsing from our bed to the desk in our bedroom, we have to take extra care to find a way to maintain our physical health. If you are able to go outside, do it. Yes, be safe, stay at least six feet from people, wash your hands, all that. But if you can, take walks — a lot — or run, or maybe hike or bike if that’s available. If you are not able to leave home, then find some way to exercise indoors. This could be the time to invest in a treadmill or stationary bike (if you have the space and money). But even if not, walk up and down the halls of your apartment or around your backyard. I take most of my calls while walking or at least pacing back and forth, so without thinking about it I somehow end up with 15,000 steps, even these days.

But there is more than our physical health. There’s our mental or emotional health. If you’re fortunate enough to be a parent, you have to care for your children’s emotional health in a special way these days, and that can make you really feel the obligation to maintain a good attitude, not swim in the negative news. This requires a choice that life before maybe didn’t demand of us. Whether you yield to hope or despair is a straight-up choice. We can make it easier to choose wisely: as noted, you don’t need to check a news app every 20 minutes just to read the same bad news; you can maintain a routine so that you give yourself down time (a problem with not having the routine and working from home is that it can feel like you really should be working every free moment from when you wake until you fall asleep). Do what you need to do to make the choice easier, but keep in mind you have a choice to be hopeful and maintain a good attitude.

If you’re even reading this entry you are very likely among the blessed, who are able to keep working, will hopefully not lose your job, and are able to take steps to keep yourself and your loved ones safe. Be grateful for that, but also be sure you take care of your whole self during this time.

---

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

It’s been quite the whirlwind for Colorado. After telling everyone that bar results would be out at the end of the month, the state accidentally informed everyone through an email blast earlier in the week. After yanking down the results and informing everyone that it was all a Beta test and the results were fake, they’ve now gone ahead and released the real results.

Which, tipsters inform us, appear to be the same results from before.

After toying with the emotions of examinees, officials released this statement assuring folks that the results were not “reliable or accurate.”

This no doubt produced terror in those who thought they’d passed and elation in those fearing that they failed. We argued at the time that keeping people in limbo for another 20 days would be cruel at this point and that if the state was lying about these results being fake, they should come right out and release everything immediately. So at least they’ve done that.

But why the lies? Don’t these folks deserve some candor? As one tipster put it:

At bottom, if an attorney lied to the public like this, they would face serious discipline. Therefore… the attorney regulation counsel should resign, or be fired.

It’s hard to argue with that logic.

State Sends Out Fake Bar Results As Part Of Beta Test

---

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.

The coronavirus pandemic has developed so quickly that the key people involved in dealing with it — including medical staff, scientists, and governments — are still struggling to find the resources to do so effectively. One key issue that has emerged is that there may not be enough ventilators to keep people with the most serious symptoms of COVID-19 alive. The fear is that doctors will have to make on-the-spot decisions about who has priority for the machines that are available — tantamount to deciding who will live, and who will die. The prospect of that terrible burden being placed on medics’ shoulders has led to a global scramble to obtain as many of these machines as possible so that there is a ventilator for everyone who needs one.

The urgency of the situation has led to some unprecedented solutions. For example, major car manufacturers are retooling their vehicle production lines to make ventilators. The US Health and Human Services Department has awarded a contract for $489 million to General Motors to make 30,000 ventilators. Meanwhile, Ford aims to supply 50,000 ventilators in 100 days. The Spanish car-maker Seat, part of Volkswagen, has built emergency ventilators out of windscreen wiper parts. Similarly, Tesla is seeking to re-purpose parts from its own cars to create ventilator systems.

Also noteworthy are a number of open source ventilator projects. The aim is to design models whose 3D plans can be shared freely so that much-needed devices can be built for a low cost around the world. As an article on Hackernoon looking at four projects that are furthest along points out, the complexity of the problem is underestimated by many hoping to contribute in this way. In particular, designing open source ventilators is the easy part: the hard part is rigorous testing and gaining approval from the relevant health authorities.

The obstacles to supplying new devices has led many to concentrate on a better utilization of the ventilators that hospitals already have. However, as an article on the Vice site explains, at a time when most companies are doing what they can to help address the coronavirus pandemic, some manufacturers think protecting copyright and proprietary designs is more important than saving thousands of lives. Specifically, it turns out the lack of a “right to repair” — something covered extensively here on Techdirt — is stopping hospitals from fixing the ventilators they own quickly, and forcing them to ship units back to the manufacturers:

Core to the fight against coronavirus, then, will be keeping the ventilators hospitals do have online. Many of them are not empowered to fix their own machines, however, due to the exact same issue that we’ve outlined before with John Deere tractors and other devices: medical devices, including ventilators, have gotten more complicated over the years. They are now controlled by microprocessors and software. That complexity hasn’t made them inherently more difficult to repair, but manufacturers have artificially put “software locks” on them, meaning that only those who are authorized can make modifications.

Some ventilator manufacturers are going out of their way to make repair difficult. For example, they have tried to keep service manuals out of the hands of independent repair professionals. They have even taken legal action against independent databases of manuals. The site Frank’s Hospital Workshop, which seeks to help people repair medical equipment, has been forced to remove some manuals, replacing them with the explanation: “Download prohibited… Support is not desired.” The argument against allowing hospitals to employ independent technicians is the usual fear-mongering:

AdvaMed, the medical device manufacturer trade group that represents more than 400 companies (including Siemens, GE Healthcare, and Philips, which are among the largest), wrote a letter to lawmakers in Massachusetts claiming that right to repair legislation “could result in maintenance and repairs of medical devices being performed by untrained personnel, and that inappropriate replacement parts may be used.”

In other words, manufacturers are insinuating that there’s a risk that “untrained” personnel might do a bad job, and result in equipment that is dangerous for patients. The US government doesn’t think that’s true: a 2018 Federal Drug Administration report found that many third-party repairs “provide high quality, safe, and effective servicing of medical devices” (pdf). And even if it were true, the choice would then be between putting COVID-19 patients on a repaired, working ventilator that might have some risk, or not having access to one at all, and probably dying as a result. Do manufacturers seriously think people would prefer the latter?

Manufacturers Refuse To Allow Hospitals To Fix Ventilators That Are The Last Hope For Many COVID-19 Patients

More Law-Related Stories From Techdirt:

Corporations Not Happy Innovators Have ‘Hacked’ The Crappy U.S. Binding Arbitration System
Senator Loeffler, Already Accused Of Pandemic Insider Trading, Will Convert All Individual Stock Holdings To Managed Funds
Red Light Camera Company Says It’s Dying Of Coronavirus

Ed. note: Please welcome Darren Heitner to the pages of Above the Law, where he’ll be writing about sports and the law.

Stephen Curry has a base salary of over $40 million for the 2019-20 National Basketball Association season. Curry is joined by six other NBA players, including LeBron James and James Harden, whose base salaries for the season eclipse $37 million. While the base salaries those players’ earn from a single season should easily be more than enough money for the average American to live a very comfortable life, players like Curry, James, and Harden are outliers and not representative of the NBA at large.

The disparity between the NBA’s highest earners and those earning minimum, or close to minimum, salaries was brought up recently by Portland Trail Blazers guard CJ McCollum in reference to how a canceled season due to coronavirus concerns could lead to economic issues for a number of NBA players. McCollum addressed the subject in an interview with former Duke Basketball star and current TV analyst Jay Williams.

“I would say out of 450 players, 150 probably are living paycheck-to-paycheck,” McCollum said.

McCollum was certainly speaking off-the-cuff and without any data in hand nor any deep analysis having been conducted by him or any of his advisors. He also received a fair amount of criticism for expressing his belief, with many people questioning how it could be possible that individuals who are compensated so handsomely could possibly be merely surviving on future paychecks.

While it may not be exactly 33% of NBA players living paycheck-to-paycheck, McCollum’s estimate is likely not a far cry from reality.

“I wholeheartedly agree with that, and I believe the number is about right; however, paycheck-to-paycheck may be a bit of an overstatement,” said Leon McKenzie, president of Sure Sports, which specializes in lending to professional athletes. “Most players like to have some reserves, but missing a full paycheck would create almost immediate hardship, and missing two paychecks would create hardship for a lot of players in the league.”

McKenzie said that the median income in the NBA is $2.5 million, which is also the same as the veteran minimum salary. A lot of players making less than $2.5 million have only been in the NBA for three to four years or less. The are also often the breadwinner and taking care of several adults. Cutting off their income stream would be a very big deal, according to McKenzie.

The 300th-highest base salary for the 2019-20 NBA season belongs to one of McCollum’s teammates, guard Anfernee Simons, per a ranking of base salaries by the contract database Spotrac. Simons is in the second year of a rookie deal that would pay him a total base salary of $2.15 million for the 2019-20 NBA season, after earning $1.835 million for his rookie season one year ago. These are pre-tax salaries that also do not take into account any expenses or fines that players must pay for violating NBA rules.

Simons skipped college and went straight to the NBA through a loophole that allowed him to circumvent the one-and-done rule that typically requires an athlete to spend at least one year at a university before turning pro. He is one example of many current NBA players who likely did not come from wealth, but is now in charge of managing a seven-figure salary. A work stoppage that leads to a reduction or complete halt of payments can be devastating for Simons and the roughly 150 NBA players earning smaller base salaries.

While Simons may not be living paycheck-to-paycheck, consider a player like Chris Silva, who was playing out his first year with the Miami Heat earning a base salary of $467,000. Silva did neither spoke English nor boarded an airplane before leaving his home of Gabon in Africa to come to the United States in 2012. He traveled to the United States with the intention of making an NBA roster and helping out his family back in Gabon. This was his first year earning a decent salary, and it is not surprising that someone like Silva would be living paycheck-to-paycheck.

“I think a lot of guys are going to be hurting, especially people on minimums or people that didn’t just budget correctly and didn’t expect this to happen,” McCollum said, concerning the prolonged shutdown of the NBA season due to COVID-19. “Maybe they loaned money or paid money to family. Maybe they’re taking care of multiple people and now there’s a work stoppage for us and for a lot of people in America.”

McCollum is correct. There are many players, although perhaps not a whopping 33% of the NBA, who are living paycheck-to-paycheck for various reasons. It could be that they come from disadvantaged socioeconomic backgrounds, that they are not properly managing their money or that they are new to the NBA and have the burden of caring for their families.

NBA players have been paid their salaries in full thus far while games are not being played for health and safety reasons. However, that could soon be changing, which is why McCollum’s comments are so relevant. The next scheduled payments for players is April 15, and the NBA had proposed that players take a 50% paycheck reduction starting on that date. A 50% reduction in pay would have likely caused significant hardship for players living paycheck-to-paycheck. However, as of April 9, the NBA agreed that payments would be made in full to players on April 15. Now, players will wonder whether they will also be paid in full on the next pay date of May 1.

“I don’t think most of the players are fully aware of their economic position,” McKenzie said. “We are gearing up for what is going to happen a week or two after April 15. We have not seen any uptick in basketball, but we have seen a big uptick in baseball because they haven’t been paid in six months. In other sports, you learn how to live without a paycheck because you aren’t paid year-round. From the time these guys become pros in basketball, they become used to regular payment all year.”

---

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

You knew it was coming. Let’s do the legal edition of this loathsome meme and get it out of the way. If you’ve been on the internet at all the last week — and let’s face it there’s nowhere else you could have been — you know the rules. You’re in quarantine and you have to choose one house of roommates (or co-clerks? maybe?) to ride out the disease with.

Make your choices, vote in the poll, and tag us on Twitter (@atlblog) with your thoughts.

House #1 Sandra Day O’Connor Eric Holder Jonathan Turley Elizabeth Warren F. Lee Bailey Elena Kagan	House #2 Sam Alito Judge Judy Barack Obama Nancy Grace Brian Leiter Ted Olson
House #3 Clarence Thomas Paul Clement Larry Tribe Greta Van Susteren Amal Clooney Richard Posner	House #4 Michael Avenatti Bill Barr Ruth Bader Ginsburg Jeff Sessions Jeanine Pirro Kimberle Crenshaw
House #5 George Conway David Boies Alan Dershowitz Kamala Harris Kim Kardashian Gloria Allred	House #6 Rudy Giuliani Sonia Sotomayor Adrian Vermeule Robert Mueller Michelle Obama Richard Epstein

There you have it. Vote.

---

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.

Unigestion says we’re looking at another Great Recession. Ray Dalio (and others) say it’s more like another Great Depression.

Welcome to the bandwagon, losers: The Dark Lord of Hedge Funds has seen this coming for years (four years, to be precise, give or take). And he also had an inkling about that thing that may or may not be bringing it about.

On Feb. 1 — a month and a half before New York imposed a statewide lockdown to reduce the spread of the virus — Singer told employees of his $40 billion Elliott Management Corp. they should prepare for a monthlong quarantine…. “We recommend that all employees, in all offices, try to make arrangements so that you do not have to leave your home for a month if that becomes necessary,” Singer, who’s known for his pessimistic outlook and warnings on everything from market crashes to solar storms, said in the February memo…. Singer said employees should focus on “access to sufficient food, water and medicines (China is a significant manufacturer of medicines, so you might want to ensure that you have enough of what you need for several weeks), as well as any other arrangements you need to take now” to avoid having to be in public places.

Auret was also a former member of parliament for the opposition, MDC where he represented Harare West. He cut his political teeth in the seventies when he opposed the then ruling Rhodesian Front. He stood against the party in elections but lost.

A devout Catholic, Auret was married to Diana for 63 years and has left three sons and a daughter who issued the following statement:

A light that shone so brightly with the humility and gentleness of the Saints he so faithfully followed, has finally dimmed. Our much-loved husband, father, grandfather, uncle and brother has gone forward to light the way for us in the dark journey ahead. While our hearts are torn asunder as we face the devastation of his leaving, we celebrate a life lived with such great compassion, activism, meaning, wisdom and above all – with such great love.
Dad was never just ours. We shared him with the Zimbabwe he so loved and fought all his life for, and ultimately with all those whose lives he touched and raised up through the power of his love.

Michael Theodore Hayes Auret was meant to be a catholic priest until he met our mum, Diana, and everything changed. Catholicism, his heroes, Pope John Paul II, Pope Francis and Father Patrick Galvin were the inspiration for his transition from young white farmer trying to make sense of the Rhodesian Civil War to human rights activist. He began by holding the Rhodesian police accountable for the torture of our farm workers, thereafter joining the Catholic Commission for Justice and Peace (CCJP)to expose the atrocities of the senseless war. He also began to oppose the Rhodesian Front politically by standing unsuccessfully as an opposition MP in Bulawayo.
While on a CCJP trip to Rome to discuss peace efforts with the Pope, he was called up to the Rhodesian army. Knowing he could not fight for the Rhodesians he arranged for us to leave the country as refugees and he led us from Rome, through Switzerland and finally to England.

Returning to Zimbabwe at Independence, he threw himself into rebuilding the country with the church and continued his work with CCJP which led him to the work he participated in, with other great Zimbabweans, in the cataloguing of the massacres in Matabeleland contained in the book “Breaking the Silence: Building True Peace.”
Throughout his life in Zimbabwe, he continued to serve and when constitutional discussions took place he was part of the founding of the National Constitutional Assembly (NCA) and served as its vice-chairperson in the first committee under Morgan Tsvangirai. The NCA went on to defeat Mugabe in the only democratic process the opposition was ever allowed to win, the constitutional referendum, pushing back Mugabe’s constitution in 2000.
In the same year, he stood for the opposition MDC in the 2000 elections and won his seat in Parliament for Harare Central.
After his retirement, he continued his love and service to the Catholic church in Ireland where he settled with our mum and his family. He often dwelled on the fight for Zimbabwe and wrote: “From Liberator to Dictator: An insiders account of Robert Mugabe’s descent into tyranny”.

He was always a gentleman, always loving, compassionate and humble. Married to our mum for 63 years, we are all devastated by his passing, but thank God that he chose to take him home after a long and sometimes painful journey, on this day of such significance.
Diana, Peter, Margaret, Stephen and Michael Auret and all our children

Post published in: Featured

* Michael Cohen, President Trump’s incarcerated former lawyer, has been moved to a Special Housing Unit (“SHU”) after a confrontation with another prisoner. Fans of Orange is the New Black should know what that is. [Fox News]

* The Supreme Court is facing challenges about how to function during the ongoing COVID-19 pandemic. [New York Times]

* A Brooklyn judge allegedly balked at social distancing guidelines in his courtroom just two weeks before he died from COVID-19. [New York Daily News]

* Actors playing “Walking Dead” zombies at Universal Studios have sued the park claiming that Universal promotes an environment that encourages guests to fight and grope the performers. [Daily Beast]

* Doulingo, the popular language-learning company, has picked it’s new general counsel. Hope he knows that money is the universal language… [Corporate Counsel]

---

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.