Author: TSA Press

The most baroquely partisan U.S. Attorney General since John Mitchell, if not ever, has made clear that he’s not the slightest bit interested in any wrongdoing on the part of any Republicans during this very sensitive time for his chief concern, the reelection of his boss, Donald Trump. But even Bill Barr can’t look at the very suspiciously timed trades of essentially the entire net worth of Sen. Richard Burr, saving the North Carolina Republican a suspicious quarter-million dollars or more just before the coronavirus pandemic he said was no big deal tanked the markets after Burr got some confidential briefings on said pandemic without saying, “Come on.”

* A federal judge has dismissed a copyright infringement lawsuit filed by a tattoo artist who claims his work was copied when the video game NBA 2K depicted Lebron James with his tattoo. That’s a fact pattern worthy of a law school exam. [New York Post]

* A Nebraska attorney has been disbarred for punching his 83-year old father in the face. [Bloomberg Law]

* A federal judge in Texas has blocked the state’s ban on non-essential abortions amid the COVID-19 pandemic. [CBS News]

* A federal judge has agreed to advance a lawsuit against Panera alleging that it misled customers when it allegedly only used trace amounts of blueberries in its blueberry muffins. Please tell me they don’t only use trace amounts of chocolate in their chocolate chip muffins… [Reuters]

* An attorney who interrupted a deposition around 145 times and made 106 objections has been sanctioned $1,000. [ABA Journal]

* In-house counsel at a variety of companies, including The Cheesecake Factory, are facing pay cuts because of the COVID-19 pandemic. Not even joking, I would gladly accept their cheesecake as part of a compensation package. [Bloomberg Law]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

According to 2019 financial data collected by ALM, which Biglaw firm saw profits per equity partner rise 16 percent to reach $3.79 million in 2019?

Hint: The firm’s revenue was also up 13.3 percent to $776 million and revenue per lawyer was up 8.2 percent to over $1.4 million.

See the answer on the next page.

“Does it even make sense to change from my snowflake pajamas if I’m working from home all day?”  asked one of my team members.

“I just left groceries at my mother’s door and left. I was worried that interacting with her would endanger her health. Is that normal?” asked another.

Although they would have sounded crazy just a few weeks ago, these are good, logical, and even important questions. 

It Is Okay Not To Feel Normal

As we’re all still settling into a new normal, if there is such a thing, I noticed that many of my calls start with the references to the “end of the world” or “apocalypse,” as a joke to defuse tension and discomfort. Of course, every joke has a kernel of truth in it.

I’ve also noticed a lot of anxiety. Some feel very cooped up at home. Others worry whether they do enough to prevent getting infected. And others are worried about their children, significant others, and parents. Anxiety is in the air.

Indeed, times are strange. It is normal to not feel normal and to ask questions that you have never asked before. It is okay to check in with yourself and others. It is okay to go easy on yourself and go easy during this time of uncertainty and transition.

Working From Home (Or From Anywhere!) Is A Learned Skill And Habits

Just because we have homes, and many even have home offices, does not mean that we know how to work from home. Many of us are still struggling with the working-from-anywhere routine. How do I dress for a workday from home? It is now a persistent question and discussion.

Others are not yet comfortable and proficient with the technology. For example, video technology is new and uncomfortable for many professionals. Feeling camera shy is common. Worrying about one’s unprofessional home arrangement is another persistent theme. Are kids allowed in the background of your video meeting? Pets?

These are logical responses to what we are seeing at a societal level. It is normal to have questions when routine is disrupted. The good news is that many of these habits and skills, including how to come across professional on camera, are learned. More good news: learning video technology pales in comparison to passing a bar exam or mastering the rule against perpetuities.

 Supportive Hiring Practices, Infrastructure, Culture, Training, And Policies

Finally, we as lawyers can learn from others how to identify, influence, and implement best practices in our organizations. For example, I recently interviewed Marc Kaufman of Rimon Law about building a distributed law practice. It turns out that working from anywhere must be by design. According to Kaufman, the hiring practices, infrastructure, culture, training, and policies make a huge difference in whether an organization can work from anywhere effectively and whether it can seamlessly transition from a physical to a virtual working environment. In other words, working from anywhere will only become normal if the organization embraces working from anywhere by design.

The global coronavirus –- and government responses to it -– have thrown all of our lives into chaos. We are now making changes in our lives that were unimaginable just a few weeks ago. In making those changes, it’s essential that we remain proactive and not reactive. If we want to succeed in our workplaces, we must make choices by design, thinking strategically about what we want. If we do, we might even learn a thing or two for after the crisis.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology.  Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Truly, we live in amazing times. While the coronavirus has shuttered trading floors around the world, trading goes on apace—and thensome. Working (and socializing) from home has become so easy people can’t get enough of stocks called “Zoom,” even if they’re the wrong Zoom. And services that enable banks and others to the phone calls traders make to, you know, trade are booming.

Unfortunately, like our healthcare infrastructure in the face of a pandemic, our technological infrastructure isn’t exactly up to the task of everyone working from home. This means a lot of dropped or malfunctioning calls. This may not seem like a big deal, but in light of, you know, certain things, regulators are pretty prickly about not being able to listen in those calls. Luckily, the FCA and ESMA have a solution that doesn’t rely on such finicky technology.

Pirates have been known to pillage and plunder others’ treasures, but these are not actions normally attributed to states of the United States. On its face, pirates and states don’t seems to have anything in common, but given a recent ruling by the Supreme Court of the United States, one may be inclined to think otherwise. In Allen v. Cooper, SCOTUS recently upheld a Fourth Circuit ruling that the Copyright Remedy Clarification Act of 1990 (CRCA) does not validly abrogate state sovereign immunity under the 11th Amendment. In essence, SCOTUS held that since Congress unconstitutionally attempted to take away state sovereign immunity under the CRCA, states could continue to assert sovereign immunity from damages resulting from their infringement of valid copyrights. Although many practitioners are viewing this ruling as a huge win for the states and an equally huge problem for copyright holders, I think there is more buried here than meets the eye.

The background of this case is worth a look. In 1996, Intersal Inc. (a marine salvage company) discovered a shipwreck off the North Carolina coast that was determined to be the Queen Anne’s Revenge, the flagship of notorious pirate Edmund Teach (more commonly known as Blackbeard). Since the ship was located within the state territorial waters of North Carolina, the state of North Carolina contracted with Intersal to conduct recovery operations.

To document the recovery efforts, Intersal hired videographer Frederick Allen, who thereafter recorded videos and took photos of the recovery for more than a decade, registering copyrights in all of his works in the process. When North Carolina published some of Allen’s works on the state’s website, Allen objected, and the parties reached a settlement.

Unfortunately, North Carolina later posted some of his copyrighted videos online as well as some of his photos in a state newsletter without Allen’s permission. When North Carolina refused to admit wrongdoing, Allen filed suit in federal court for copyright infringement.

To make a long story short, North Carolina moved to dismiss the case based on sovereign immunity — “the general rule that federal courts cannot hear suits brought by individuals against non-consenting States.”  Allen responded that under the CRCA, Congress revoked the states’ sovereign immunity from lawsuits such as his copyright infringement case.  The CRCA  provides that a state “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. Although the district court agreed with Allen, the Fourth Circuit disagreed and reversed, holding the CRCA invalid.

In a 9-0 unanimous decision authored by Justice Kagan (with concurring opinions by both Justice Thomas and Justice Breyer joined by Justice Ginsburg), the court stated that:

“[this] court has permitted a federal court to entertain a suit against a non-consenting State on two conditions. First, Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit….[S]econd, some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is ‘a valid exercise of constitutional authority.’

Although SCOTUS found that Congress clearly intended that a state (such as North Carolina) could be sued for copyright infringement in the same manner as a private individual, the Court held that that the second prong could not be met and that Congress exceeded its authority under Section 5 of the 14th Amendment because “the statute aims to ‘provide a uniform remedy’ for statutory infringement, rather than to redress or prevent unconstitutional conduct.” As a result, the court affirmed the 4th Circuit’s holding.

As a result of this ruling, many practitioners have expressed concern about states running roughshod over copyright owners’ rights to their works. Here are three takeaways from Allen v. Cooper that should help put such thoughts into perspective:

States Can Be Still Be (Kind Of) Sued For Copyright Infringement. Although the CRCA has been held unconstitutional, states can still be sued for declaratory judgment and injunctive relief (just not for monetary damages).  Further, a state may have waived its sovereign immunity under certain circumstances (such as an express contractual waiver or other “clear indication” of submitting to Federal court jurisdiction). Granted, this is not perfect, but it’s something.

States Are Not Flagrantly “Pirating” Copyrighted Works. Believe it or not, states have not been in the habit of flagrantly disregarding third-party intellectual property rights. Although states have been known to interpret the fair use doctrine regarding unlicensed use of copyrighted works, overt, intentional infringement of such works is not the norm. Don’t believe me — before passing the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report on the impact of the 11th Amendment on copyright enforcement. Although the Oman Report cited concern over immediate and irreparable harm based on comments it received, the SCOTUS review of the Oman Report in the present case found very few examples of state infringement. In fact, “Oman acknowledged that state infringement is ‘not widespread’ and ‘the States are not going to get involved in wholesale violation of the copyright laws.’” Again, this is not a guarantee against abuse, but if history is any indication, the present case is not likely going to open the floodgates to willful state copyright infringement.

Third Parties Working With States Can Be Held Liable. Although a state may enjoy sovereign immunity in a specific case, third-party facilitators to such infringement enjoy no such protection. For example, a state may contract with a marketing firm to reproduce specific works for a state tourism flyer — absent contractual considerations to the contrary, the marketing company may be held liable for copyright infringement. Further, this simple fact may induce third-parties to ask for contractual assurances (or even waivers) when dealing with copyrighted works and state entities. Simply put: don’t miss the jungle for the palm trees.

Although Allen v Cooper is not a win for copyright owners by any stretch of the imagination, it is not the end of the world either. We can all agree with SCOTUS that Congress needs to readdress this issue by “linking the scope of its abrogation to the redress or prevention of unconstitutional injuries — and [create] a legislative record to backup that connection” (although I wouldn’t hold my breath on that possibility for very long). Notwithstanding the foregoing, this decision should operate as a wake-up call to copyright owners to be cognizant of potential unlicensed state use of copyrighted works and think creatively when addressing potential copyright infringement. It may take a little more digging, but something tells me it may uncover some gems and be worth the effort in the long run.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Over the past couple of weeks, I’ve joined a video lunch to talk about how legal services professionals around the world are continuing to work and continuing to find ways to communicate effectively during the global pandemic.

Early in discussions, it was clear there was an attorney/staff division at law firms. That’s wrong, but not so surprising. What I found galling is what little regard some firms had for support staff early on in the crisis and how the divide grew in the days that followed.

While many attorneys were allowed to work from home almost immediately, support staff were required to come into the office to retrieve, print, and ship documents to the lawyers working remotely. It’s also clear that while many firms worked hard to find ways to create flexible work environments for attorneys, those same firms haven’t done the same for their support staff.

Treating support staff as second-class citizens is a mistake. And how firms communicate with and treat their workers — all workers — will define them and reverberate for months and years to come.

Billionaire Mark Cuban made the observation this week in terms of larger corporate brands, cautioning that putting business over safety will define a company for decades. “Not only is it smart to take care of your employees, but it’s also good business and that’s the way I’m looking at it,” Cuban told MSNBC.

We’ve already seen backlash and backstepping by firms too quick to try to go back to business as usual. In fairness, many firms have been doing right by their employees from the very start. They were quick to cut nonessential activities and make accommodations and adjustments for their support staff. And, importantly, when some employees were treated differently than others, they explained why and worked quickly to address the disparities.

But many others have employees who’ve been grumbling and outright angry about how they are being marginalized. This comment continues to stick with me: “My life is not as valuable as our attorneys.”

This is a good time to think through how you’re communicating and how you want your firm and its management decisions remembered during this crisis. Some ideas to think through follow:

• Put safety and people first.
• Be quick with the latest news and updates. Silence feeds paranoia, guessing, and rumors.
• Let employees at all levels know you care by communicating that management is working to find ways to adapt and address the needs of all employees.
• Be sure that managers at every level are doing regular check-ins with all employees.
• Be direct and transparent about your firm’s state of affairs. You never know where a good idea is going to come from. An employee invested in the firm’s future will be more willing to jump in with creative ideas to support business continuity.
• Model safe behavior. If you are only rewarding employees who take safety risks to continue operations, then the message is clear: the firm values business and profits over people.
• Finally, continue to monitor how and whether you’re reaching employees in the most effective way. And don’t forget to invite feedback, hear out and address concerns with respect and empathy.

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Molly McDonough is a longtime legal affairs writer and editor. Before launching McDonough Media, she was editor and publisher of the ABA’s flagship magazine, the ABA Journal. She writes about access to justice at A Just Society.

It was a noise that could not be unhear. As the Zoom meeting moderator continued on gamely and politely last week, one attendee repeatedly issued a hog-like nasal snort, so loud and frequent that it distracted from the topic at hand.

Many of us are taught that only the person who has not sinned should cast the first stone, and when it comes to making inappropriate breathing noises, I surely have sinned, having suffered respiratory blockages since a young age. So, in raising this, I do not mean to cast aspersions on someone for whom snorting may have been beyond control.

But there is one critical difference that separates me from the snorter, and that is my facility with the mute button. Fifteen years of podcasting has taught me an essential skill that translates well to our new reality of daily Zoom meetings — knowing when to mute myself and, equally as important, knowing when to unmute myself.

So as Zoom becomes our new conference room, water cooler, and happy-hour gathering place, allow me to share ten video conferencing blunders you can easily avoid.

1. Don’t snort. On Zoom, the mute button is your friend. Whatever noises you might make, it is there to keep you from sharing them. It is in the lower-left corner of your screen and looks like a microphone. Let’s be blunt. Some of us snort. Some of us are heavy breathers. Some of us talk to ourselves out loud. Thankfully, through the miracle of the mute button, we need not share any of that with our fellow conferees. But there is an important proviso attached to the mute button, and that is that you must not forget to unmute yourself when the time comes to convey your brilliant contribution to the meeting.

2. Don’t look bored. When videoconferencing with the senior partner or a key client, try your best to look interested and engaged. The trick here is all in the eyes. If, rather than looking at your computer screen, you are reading texts on your iPhone, they will see your inattentiveness. Keep your eyes focused in the general direction of your webcam, and no one will ever have to know how bored you actually were.

3. Don’t forget you’re on camera. There is a lesson for all of us in the heart-wrenching tale of #PoorJennifer. On a Zoom conference last week, while all the participants were arrayed in gallery view, she apparently forgot she was on camera as she carried her laptop to the bathroom, placed it on the floor, and proceeded to use the toilet, for all to see. Video of the mishap made its way to Twitter, where it had 7 million views before being removed. The lesson here is remain mindful of the fact that you are on camera. And if the call of nature cannot last until the meeting ends, remember that you can easily turn off your camera –- right there next to the aforementioned mute button.

4. Don’t play Solitaire. The meeting moderator is sharing her screen, showing a PowerPoint on your practice group’s business development plans. But your eyes are focused on your second screen, where you’re amusing yourself with a game of Solitaire. Suddenly, the moderator asks you, “Why aren’t you paying attention?” How did she know? Turns out, Zoom has a sneaky feature called Attention Tracking. It allows the meeting host to see when a participant does not have Zoom in focus for more than 30 seconds. The good news: It only works during screen sharing, so you’re free to multitask the rest of the time.

5. Don’t share the wrong screen. The moderator’s presentation is over, and now it’s your turn to share your screen. On one monitor, your PowerPoint is ready to go. On the other, well, there’s still that game of Solitaire. When you select the Share Screen button in Zoom, it lets you select which screen or open window to share. I can’t tell you how many times presenters have mistakenly shown me their email inboxes or something else I shouldn’t have seen.

6. Don’t ignore your background. Makeshift home offices are the new normal. That means you may be working at a desk where you see your computer, but others see your unmade bed or kids’ dirty laundry. Before you get on a videoconference, turn on your camera and see what others will see. In Windows, click the Start button, then Camera. On Macs, use the Photo Booth app. If it ain’t pretty behind you, you might want to consider a Zoom virtual background. Palm trees beat laundry baskets any day, but you’ll need a fairly recent computer for the virtual background to work well.

7. Don’t take a call. Amazing how often this happens. We hear the participant’s phone ring, see the iPhone to the ear, hear the quick explanation that they’re on a conference and can’t talk, and then hear and see the extended conversation regardless. If you were in a face-to-face meeting, you would not take the call. Why take it on Zoom? If you must, remember the points above about muting your mic and video.

8. Don’t forget about lighting. On a Zoom video conference last week, a principle speaker was a faceless silhouette against a floor-to-ceiling window. The view was spectacular, but not of the speaker. Check your lighting in the same way that you check your background. Avoid bright backlighting if you can. If you can’t, put a light on your desk and shine it at your face.

9. Don’t forget to alert your housemates. Sure, it’s cute when the little kids come in and want parent time. But it’s not so cute when your significant other yells from the other room about your failure to pick up your dirty clothes. Before you join a conference, make sure those you live with know. And if the room you’re in has a door that locks, then lock it.

10. Don’t forget to moderate. For all the potential blunders I’ve described above, the worst videoconferences, like the worst face-to-face meetings, are those where the moderator fails to moderate. Set an agenda for the meeting in advance. Cut people off who go on too long. Keep things moving. And if you can end it early, by all means do.

Just don’t forget to click “End Meeting.”

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

All around us, our friends and neighbors are stepping up in ways big and small to meet the challenges of these times, if only we have the courage to open up our eyes and see them. But let’s not just see them, let’s appreciate them. Shoot, let’s not just appreciate them, let’s be them. Because ultimately, each one of us – young or old, trained or untrained, and yes, healthy or sick – has a role to play in both halting the spread of the virus and furthering the spread of compassion. …

I don’t know when I’ll be better, when we’ll be better, or when all of this will just be a crazy, mixed-up memory. But until then, I know that we already have everything it takes within our society and within ourselves to day by day, moment by moment, do right by our community. So let’s get better together.

— Zack Kaplan, a second-year student at Duke Law School, in comments made on the Progressive Pulse blog of North Carolina Policy Watch, after he tested positive for COVID-19. Kaplan stresses that everyone must “fulfill a noteworthy civic duty” to contain the spread of coronavirus and flatten the curve.

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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.