Author: TSA Press

Law firms — like all of us — are feeling the impacts of the coronavirus outbreak.

But legal professionals aren’t concerned only for themselves; they’re standing alongside their clients in crisis. With entire industries at risk of grinding to a halt, lawyers are facing an uptick in demand. They can’t afford to close their doors when clients need them, even when the reality is mandating their own difficult business decisions. Baker McKenzie, Faegre Drinker, Quinn Emanuel, and other law firms have temporarily closed their offices. Conferences and events have been canceled due to bans on travel and group assembly.

What are the main challenges firms are facing as they work to avoid an interruption of client services and even ramp up their availability to clients who are experiencing increased short-term needs while simultaneously protecting their employees and encouraging responsible social distancing practices?

Over the next few weeks, experts from the Litera team will be reviewing these challenges and giving advice on how to help your firm adapt to the changing work environment and be ready for the next global crisis.

1. How is the firm empowering employees to work remotely?

During this massive shift in business operations, technology is here to help and has created the possibility of allowing employees to work remotely.

This is more than just sending people home with their computers. Lawyers need to feel empowered to do their jobs just as well as they would in the office. In addition to basic IT equipment, productivity and communication tools are necessary to set them up for success.

Working remotely also means there needs to be a level of self-sufficiency. Technology can be leveraged to reduce the reliance on others, especially while drafting documents, while collaboration platforms are key to enabling multiple people in different locations to work together effectively.

2. How are clients continuing to be served when face-to-face meetings and travel are restricted or eliminated?

Understanding and meeting client demands is always the top priority of the firm, but in times where there is limited in-person access this becomes challenging.

Restrictions on travel or market uncertainties can lead to projects being delayed, postponed, or canceled completely. The coronavirus threat has already derailed countless transactions and business deals. Notably, the $1 billion sale of a San Francisco development has been postponed by at least a month due to delays in the completion of due diligence checks. Warner Music Group and Cole Haan have both suspended their IPOs.

Perhaps your clients are operating on a smaller scale, but they’re likely feeling similar tremors.

Technology offers the option to conduct many tasks remotely — beyond just the ability to collaborate — eliminating the need to physically sign and mail documents, and holding meetings virtually can keep relationships strong and allow projects to move along without any major interruptions.

Not only does this save time and avoid potentially risky travel and meetings, but it also removes some of the burden from delivery pathways that are under unprecedented stress.

3. How does the firm update outdated and manual processes that are ingrained in the culture?

A lot of the day-to-day work done at law firms was built for a bygone era. Many firms have not fully modernized processes which were put in place years, maybe even decades ago. This latest global pandemic is changing the way we live and work. Just as people are learning the importance of proper hand-washing and other basic hygiene practices, lawyers are learning that reliance on paper and manual processes is problematic during severe workplace disruptions.

Firms should capitalize on this as an opportunity to review how things are done and find ways to improve. Reducing internal processes that are manual and paper-driven, or require in-person interaction, helps future-proof the firm, and will have a lasting impact on the productivity and effectiveness of its workforce.

4. What is the business continuity plan and what is technology’s role?

If there is one thing we learned over the past two weeks it’s that you can never be too prepared. Having the right plan and the right technology in place can be a differentiator when the IT department is overloaded with requests. Not only does being prepared have a positive impact on the employees, but also on their clients and families.

Identifying the key vendors that provide crucial services can make all the difference. It simplifies the process of deploying and maintaining software and gives firms one team to work with for account management and support.

Litera is helping firms maintain business continuity even when facing an unknowable future. Our forthcoming blog series dives into these challenges and will look at how Litera Desktop and Litera Transact can help provide what law firms need, even when their teams are prevented from traveling, required to work remotely, or otherwise disrupted.

About Litera
Litera is the leading provider of software for law firms and document-intensive organizations across the globe, helping them satisfy the demands of clients. Our document drafting products empower users to create, proofread, compare, clean, and distribute high-quality content quickly and securely, from any device, while our transaction management platform converts the manual, tedious process of managing transactions by creating a secure, collaborative workspace and automating the entire signature process. Learn more at litera.com.

They call it the “sport of kings,” and few things embody this reference to horse racing in America more than the Kentucky Derby. Held annually at Churchill Downs in Louisville, Kentucky, on the first Saturday in May, the “Run for the Roses” (named for the blanket of roses draped on the winning horse) has been held there since 1875. The event is not only the first race of what’s known as the “Triple Crown” but also a grand spectacle with many traditions. From drinking mint juleps and eating burgoo to the ladies’ wearing of elaborate hats and the box seats known as “Millionaires Row,” the Kentucky Derby is a grand spectacle indeed. Another treat associated with the Kentucky Derby is a decadent chocolate-and-walnut tart that has caused a stir recently due a trademark associated with the original, leaving a bad taste in the mouth of the trademark owner yet providing a valuable, satisfying lesson about the nature of trademark infringement worth digesting.

A little history is necessary for context.  The original “derby pie” is a special pastry originally created in 1954 at the Melrose Inn in Prospect, Kentucky, by its owners Walter and Leaudra Kern.  After a great deal of experimentation and the assistance of their son George Kern, they arrived at the perfect recipe and they dubbed the creation “derby pie” after pulling names out of a hat (go figure).  In 1968, Kern’s Kitchen registered the trademark “DERBY-PIE” for this delicious confection, and seems to guard the use of this trademark as diligently as it guards the pie’s secret recipe, having filed over 25 trademark infringement lawsuits over the years to protect its “DERBY PIE” trademark, including one in 2013 against Bon Appetit magazine.

This brings us to the present day and yet another lawsuit brought by Kern’s Kitchen, against the Louisville Courier Journal. Basically, the newspaper published two articles on the day of the 2017 Kentucky Derby.  According to the court in Rupp v. Louisville Courier Journal:

On the same day as the 2017 Kentucky Derby, Defendant published an article (“Article 1”) with the headline, “Bourbon makes this Derby pie a state original.” [DE 1-2 at 10]. In the article, Defendant provided the recipe—courtesy of the “fine folks up rivers at Captain’s Quarters—for a “Derby chocolate-walnut pie”.

* * *

In June 2017, Defendant published an article (“Article 2”) about Derby City Macarons, an independent, locally owned shop specializing in macarons, the “French almond flour pastry.” [DE 1-3 at 12]. Below a photograph of assorted macarons, Defendant wrote: “Derby Pie, Mint Julep and Peach Tea macarons from Derby City Macarons.”

Taking exception to the newspaper’s ostensible reference to its trademark in both Article 1 and Article 2, Kern’s Kitchen filed suit against the newspaper in federal district court for trademark infringement under Sections 1114 and 1125 of the Lanham Act.  The newspaper later moved to dismiss the case for failures to state a claim.

After considering the arguments, the district court dismissed the case. Why? Because when push comes to shove, the newspaper’s use of the term “Derby pie” simply was not a trademark use. As I have written numerous times previously when explaining trademarks, the court stated that a “trademark” is defined under the Lanham Act as “any word, name, symbol, or device … used by a person … to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” The court then pointed out that a successful assertion of trademark infringement under Section 1114 requires that the “[p]laintiff must allege that: 1) he owns the registered trademark; 2) Defendant used the mark in commerce; and 3) the use was likely to cause confusion” (emphasis added). In the present case, this required the court to address the pivotal (and preliminary) question: Did the newspaper use the plaintiff’s trademark in a way that identifies the source of their goods?  The district court found that the use was a nontrademark use and that the trademark laws do not apply — no reasonable reader would think that the newspaper’s references in Article 1 and Article 2 reflect the newspaper’s sale of products it is attempting to pass off as Derby Pie pies. I am not addressing the trademark dilution claim (which the plaintiff withdrew) or the dismissal of the fraud claim (as the court held that plaintiff failed to state the elements of the claim), as they are ancillary to my basic point here: Trademark infringement requires trademark use.

I can’t question Kern’s Kitchen for bringing the claim — trademark owners have a duty to police their trademarks, and it seems they have not been timid in doing so over the years. What is important to note, however, is that the court did not address classic fair use or nominative fair use arguments (and rightfully so) — the plaintiff’s attempts to preempt these potential defenses by the newspaper were a lot of smoke and mirrors that ignored the fundamental reality that the newspaper’s use of the phrase “Derby pie” was not a trademark use. One cannot cause confusion in the marketplace by using a term in a non-trademark way.  In my over 25 years of law practice, I have seen this mistake made quite often because it can be easy to miss the forest for the trees in such cases (or in the present case, missing the pie for the chocolate and walnuts). So the next time your company (or client) is pushing for an infringement action against an alleged infringer, address and answer the preliminary question about trademark use at the outset. Odds are the answer to this question will be more helpful than you think.

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.

If it hasn’t become readily apparent by now, the coronavirus outbreak isn’t a hoax. Thus far, while more than 35,000 Americans have been diagnosed with COVID-19, it’s likely that hundreds of thousands more are carriers who have yet to be tested or formally diagnosed. One of the latest people to receive such a diagnosis is the husband of a former Democratic presidential candidate.

Earlier today, Senator Amy Klobuchar (D-MN) announced that her husband, John Bessler, a professor at the University of Baltimore School of Law, tested positive for coronavirus. Here’s what the senator said on Twitter this morning:

On her official Medium page, she explains what happened to her husband:

John started to feel sick when I was in Minnesota and he was in Washington D.C. and like so many others who have had the disease, he thought it was just a cold. Yet he immediately quarantined himself just in case and stopped going to his job teaching in Baltimore. He kept having a temperature and a bad, bad cough and when he started coughing up blood he got a test and a chest X-ray and they checked him into a hospital in Virginia because of a variety of things including very low oxygen levels which haven’t really improved. He now has pneumonia and is on oxygen but not a ventilator.

Klobuchar herself is outside of the 14-day infection period, and she doesn’t plan to be tested. Bessler remains hospitalized, and Klobuchar describes him as being “exhausted and sick but a very strong and resilient person.” Baltimore Law has yet to post an announcement about Bessler’s diagnosis on its website, but the school moved all of its classes online starting today. It is unknown whether Bessler had any contact with students or faculty over the course of the past two weeks.

“I love my husband so very much and not being able to be there at the hospital by his side is one of the hardest things about this disease,” Klobuchar wrote. “I know so many Americans are going through this and so much worse right now. So I hope and pray for you, just as I hope you will do for my husband.”

Best wishes to Professor Bessler for a speedy recovery.

Statement from Senator Amy Klobuchar [Medium]

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.

The legal industry writ large is struggling to figure out the best method to continue working remotely. Mega firms can rely on their equally large IT professionals to forge a smooth transitions. High-tech boutiques can rely on their nimble infrastructure to pivot quickly to a virtual presence. But in the middle are a lot of small practices that have never planned for a world where they can’t meet clients face-to-face at the office.

A month ago, our Clio talk mostly centered around CEO Jack Newton’s new book, The Client-Centered Law Firm (affiliate link). The legal industry never really got the Dale Carnegie/Six Sigma moment — while the rest of corporate America took the time to get introspective on the philosophy and practice of business success, the legal profession was still too busy “being lawyers” to systematically break down how to build a successful business. Armed with lessons learned from Clio’s partnership with over 150K users and his own experience building a business, Newton aimed to give the legal industry that practical and philosophical touchstone.

Now Newton’s got a chance to show how the client-centered approach works in a crisis. Clients still need lawyers during a pandemic. Indeed, some clients need lawyers now more than ever. For those firms caught thinking they would never need a robust work-from-home plan — and not just from a technological perspective, but from an all-around mental health perspective too — Clio is offering help in the form of committing “$1 million to help law firms navigate the difficulties that lie ahead.”

In a statement released this morning, Newton explained that the industry is about to “compress change that would have transpired over the course of years into change that needs to happen over a course of weeks.” That’s a tall order.

If your firm needs to figure out how to maintain business continuity or collaborate across a newly-remote workforce while still providing quality services to your clients, we’ll help you navigate that. If you are a legal organization or charity providing mental health support during this stressful time, we want to assist. If you are part of the legal community and have expertise to share or are looking for best practices from an industry leader, we want to help bridge that connection.

Clio’s vision for this aid takes a number of forms from offering help getting set up on Clio’s platform to educational support to direct financial aid to assist firms and legal support organizations and charities with the transition.

Hear more from Newton and if you’re interested in applying or just learning more about the program, check it out here:

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.

Here are three thoughts about the novel coronavirus.

First, the novel coronavirus was present at the Mar-a-Lago birthday celebration for Donald Trump Jr.’s girlfriend, Kimberly Guilfoyle. How many of you, like me, read this story and immediately thought of The Masque of the Red Death?

Second, in a sane corporation, who gets the praise?

In case that question wasn’t as rhetorical as I thought it was, the answer is:  “The lower-level employees.”

The seven people at the top of the corporation do not take the stage at large corporate events to congratulate each other and give each other awards.

The seven people at the top of the law department do not run town halls at which they praise their own leadership and give each other bonuses.

This is bad form.

No one does it.

If awards are to be handed out, or accolades bestowed, you eliminate the top-ranking people from consideration. Those people don’t need awards. They’re recognized as leaders; they’re paid a great deal of money; they’re running the joint. The leaders recognize and reward the lower-level employees, both because lower-level employees do the work and because one morale is maintained by talking about people other than yourself.

So why am I watching all of these press conferences where Vice President Mike Pence first says what a great job the president has done and then says we should all recognize the heroic efforts of those on stage with Pence?

This is not how it’s done. The leaders should recognize the efforts of the thousands of hardworking people who are not standing on the stage; those are the people who deserve kudos. Those people don’t get the spotlight or the fame; you give them recognition.

Everyone knows this.  (Except, perhaps, politicians and jerks. Or do I repeat myself?)  Can’t someone mention this to Pence?

Finally, do you think something good (on the legal front) might come of this crisis?

Take annual meetings, as just one example. Corporations hold annual meetings at big hotels in New York for a reason. Anyone who wants to ask a question of the executives must travel to New York, pay for a hotel, and then stand up in a big room and ask a question. That’s hard, and it tends to suppress the questioning. (Maybe corporations conduct annual meetings this way for a reason, no?)

If corporations conducted virtual annual meetings, then anyone could submit a question costlessly. That would encourage shareholder participation and make annual meetings more meaningful.

COVID-19 may force some corporations to hold virtual annual meetings.

And people may well decide that virtual annual meetings make sense (for shareholders, anyway). That could be the wave of the future.

Annual meetings are not the only thing that may be improved by the novel coronavirus. I suspect that many corporations are learning that employees can conveniently and effectively work from home. More employees may work from home after the crisis ends.

Similarly, many corporations may realize that “nonessential” business travel is actually “nonessential.” Companies that forbid all nonessential travel will fare just fine in the marketplace and incur lower costs. Perhaps we’ll see less nonessential business travel after this ends.

It’s novel that a virus had to crash the party to teach us those things.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* An attorney has sued the Governor of Florida for not closing Florida’s beaches earlier. So this is the guy who cancelled Spring Break? [CBS News]

* New York courts are having a difficult time administering justice in the current environment. [New York Times]

* The Ohio Attorney General has sent letters to abortion clinics telling them to stop all non-essential abortions. [Cleavland.com]

* The Supreme Court has reported that all nine justices are healthly, and all participated in the most recent conference. [Fox News]

* The maker of Purell is facing a class action lawsuit alleging that it misled customers when it said that Purell can kill 99.9% of germs. Any recovery would simply be a fraction of the money Purell is printing right now because of the COVID-19 pandemic. [NBC News]

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.

Linda Ncube has migrated from flood irrigation to drip irrigation which saves nutrients and water in the wake of recurrent droughts [Farai Matiashe/Al Jazeera]

With the death toll from the disease mounting exponentially, the UK government has banned public gatherings, closed cafes and bars and advised that social interaction and travel be kept to a minimum. Scientists and medical experts here say conditions may be relaxed in four months but warn that it may be a year before normal life resumes.

Vigil activists want to continue the campaign for a better Zimbabwe and the Vigil is looking at ways we can do this without physically meeting on the street. We are particularly anxious to continue fundraising for our sister organsation Restoration of Human Rights in Zimbabwe.

We will keep you informed through the Vigil diary, which will continue to comment on how we see the situation in Zimbabwe, which appears to be reaching another crunch point with the arrival of the coronavirus, apart from the ever-devaluing currency and ever-rising inflation (now put at over 1,000% by American observer Professor Steve Hanke).

All shall be well says President Mnangagwa but can you trust his word?  He has just flown off to Namibia for the inauguration of President Hage Geingob despite having said the government would observe a travel ban (See: http://english.ahram.org.eg/NewsContent/2/10/365721/World/Africa/Zimbabwe-president-defies-own-travel-ban-over-coro.aspx).

This week he also banned all public gatherings attended by more than 100 people but the next day he addressed a rally attended by thousands of supporters (see: https://www.newsday.co.zw/2020/03/ed-breaks-own-covid-19-decree/).

Earlier he told visitors to his farm: ‘At this farm, we have plenty of livestock including cattle, sheep, goats, pigs and countless poultry. From all those we eat whatever we want when we feel like’ – this despite recently telling Zimbabweans to eat vegetables and potatoes because ‘meat is not good for you’ (see: https://nehandaradio.com/2020/03/14/i-eat-plenty-of-meat-at-my-farm-mnangagwa-tells-starving-villagers/).

At least Mnangagwa is consistently inconsistent!

Other points

EVENTS AND NOTICES:

• The Restoration of Human Rights in Zimbabwe (ROHR) is the Vigil’s partner organization based in Zimbabwe. ROHR grew out of the need for the Vigil to have an organization on the ground in Zimbabwe which reflected the Vigil’s mission statement in a practical way. ROHR in the UK actively fundraises through membership subscriptions, events, sales etc to support the activities of ROHR in Zimbabwe. Please note that the official website of ROHR Zimbabwe is http://www.rohrzimbabwe.org/. Any other website claiming to be the official website of ROHR in no way represents us.
• The Vigil’s book ‘Zimbabwe Emergency’ is based on our weekly diaries. It records how events in Zimbabwe have unfolded as seen by the diaspora in the UK. It chronicles the economic disintegration, violence, growing oppression and political manoeuvring – and the tragic human cost involved. It is available at the Vigil. All proceeds go to the Vigil and our sister organisation the Restoration of Human Rights in Zimbabwe’s work in Zimbabwe. The book is also available from Amazon.
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