Author: TSA Press

Not since Florida’s hanging chad debacle of 2000 has there been an electoral clusterf*ck like last night’s Democratic caucus in Iowa. It’s been a full 12 hours since they finished playing musical chairs down at the VFW Hall, and the Iowa Democratic Party (IDP) has released zero official results.

Maybe jamming all the voters in a phone booth and having them knock the crap out of each other is actually … a bad way to choose a presidential nominee?

Iowa is home to about 700,000 registered Democrats, who are invited to caucus at one of 1,678 precincts (or 99 satellite sites in places as far afield as Tbilisi, Georgia). Candidates must win the support of 15 percent of attendees to be considered viable, and the threshold is higher in smaller precincts.

After the first round, supporters of viable candidates are locked in and cannot switch teams. Oddly enough, if the “Uncommitted” group has 15 percent or higher, those people are also committed to their “no candidate.” Then supporters of viable candidates fall on the supporters of the also-rans and try to browbeat them into joining a team for the second alignment. And in its infinite wisdom, the DNC will report both of these numbers publicly.

But wait, there’s more! Each caucus precinct is awarded a predetermined number of state delegates based on Democratic turnout for the general elections in the 2016 presidential race and the 2018 Iowa gubernatorial election. That delegate allocation will not change no matter how many people show up to caucus. So if 18 people show up at one precinct, and 81 people show up at another, they can still wind up splitting the same number of delegates depending on historical turnout data from elections past.

Moreover, the division of delegates seems entirely arbitrary. How can Sanders, Buttigieg, and Warren all wind up with two delegates in this scenario?

Who could predict that such a logical and streamlined process would break down? And yet, it did.

Smarting from accusations the it had rigged the nominating process for Clinton in 2016, the DNC bent over backwards to make this caucus as transparent as possible. They planned to publicize the first and second round data, along with the final delegate tallies, and they whipped up a cool new app for precincts to report their results. Silicon Valley saves the day again!

Or, maybe not. The app crashed, and the IDP’s phone line was deluged with phone calls from 1,700 precinct captains desperately trying to hand in their homework. There are also multiple complaints of miscounts because precinct captains didn’t understand that the new rule locking in supporters after the first viability threshold meant that they could leave and still have their votes counted.

As of this morning, the Party was manually retrieving caucus results and inputting them into their system. IDP Chair Troy Price promises to release half the results at 4 p.m. this afternoon, a result which should please exactly no one.

Particularly not Joe Biden, who appears to have suffered a massive loss, failing to reach the 15 percent cutoff in multiple precincts. The last thing he needs is two news cycles reporting his Iowa collapse before the New Hampshire primary next Tuesday, so he’s demanding a full investigation before any results are released.

And if the DNC was hoping to avoid charges that the primary was rigged, it seems to have managed to do exactly the opposite.

And when they finally put out the dumpster fire, this flawlessly equitable process will yield 11,402 county delegates, who will be winnowed down to 41 representatives to the Democratic National Convention in July where they’ll join 3,938 other state delegates to determine who will be the Democratic nominee in November.

That’s right, all this rigamarole, from a state which will almost certainly vote for Donald Trump, is for a whopping ONE PERCENT stake in the Democratic nomination. Just as the Founders intended.

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

It’s the most amazing and underrated perk to be able to do things like that instead of waiting until you retire.

— Al Saikali, a partner in Shook Hardy & Bacon’s Miami office, commenting on some of the wonderful things he was able to do during his three-month sabbatical from the firm, like taking his teenage daughter to the movies at noon. At Shook Hardy, lawyers are eligible for these sabbaticals every six years once they’ve spent seven years at the firm. Saikali also took a once-in-a-lifetime trip to the Middle East during his time away from the firm.

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.

For the past 30 to 40 years, much of the country’s discussion regarding prohibition has focused on adult-use cannabis. The increasing abandonment of cannabis prohibition that we see today reflects a growing trend of social acceptance of its use. As Bonnie Kristian at “The Week” points out, “Americans understand why prohibition is ineffective and indefensibly inhumane” when it comes to substances like cannabis which possess wide cultural acceptance. However, as soon as you ask Americans to apply the same reasoning regarding prohibition to substances “associated with people unlike ourselves” suddenly the history of prohibition’s abject harm and failure no longer seems to factor into the discussion.

Take cannabis and gun prohibition for example. Similar to cannabis, the prohibition of guns has possessed two glaring flaws throughout history: 1) Prohibition has disproportionately and negatively impacted minority communities, and 2) Prohibition has been grossly ineffective in achieving its stated, self-defined goals. Yet, despite these remarkable similarities the view towards the necessity or efficacy of each policy of prohibition differs wildly depending on which political tribe one belongs to.

Another similarity between gun prohibition to cannabis is the amount of disinformation or outright lies that one sees in the discussion. No doubt many have seen presidential candidate Michael Bloomberg’s Super Bowl ad regarding gun violence. The problem is, the ad is riddled with dishonest figures and claims. To be clear, I am not a Second Amendment absolutist. But asking that we be honest about gun violence (spoiler alert: violent crime overall is decreasing despite guns being more prevalent than ever and the abandonment of gun control policies), when discussing gun control could get me labeled as a gun rights “nut.” Furthermore, it should not be controversial to ask that any framework of gun control take into account the history of its failures and the disproportionate impact it has placed on certain demographics.

The need to have an honest discussion regarding prohibition is important because if one applies any sort of scrutiny to prohibition, the justifications used to prop it up can quickly collapse under the weight of demonstrable evidence. Nowhere is this more evident than on the subject of immigration, where current arguments for prohibition are quite literally collapsing before our eyes. The same goes for prohibitionist policies related to abortion, so-called “hard drugs,” and alcohol. However, it may not be enough to simply prove prohibition doesn’t work in these cases or even that better alternatives exist.

As Eric Boehm at “Reason” points out, the true purpose behind the president’s prohibitionist policy tool of implementing a border wall, for example, “has little to do with drugs or immigrants.” How could it when it can be conclusively proven a substantial majority of immigrants here illegally do not cross the border where a wall would be but overstay their visas, and that most illegal drugs pass through existing checkpoints that already have walls and armed guards. The reason the prohibitionist policy of a massive border wall persists is, according to Boehm, because for the current president:

“[I]t’s a political symbol more than anything: a way to appeal to border hawks, a neat hook for the crowds at his rallies to chant. What does it matter if the wall can’t stand up to a gusty desert wind? The whole project has always been just a lot of hot air.”

Of course, not everyone who supports prohibition is just full of hot air. As I have said myself to anti-prohibitionist voices, one has to acknowledge the logical appeal of prohibition in certain circumstances in order to have any meaningful discussion regarding its merits. Drugs, guns, and alcohol all cause immense societal harms, particularly alcohol, and to say otherwise is also a lie. Accordingly, it is natural and, in fact, logical for human beings to reason that the appropriate response to these harms is to prohibit the substances that “cause” them. But after over a century of trying, we simply know enough now to understand that prohibition does not work in the way we logically might expect it to.

What becomes inexcusable is placing your head in the sand and intentionally ignoring the fact that alternatives to legal prohibition have been tried. That these alternative have proven, over lengthy periods of time, to be more successful in alleviating harms. Until and unless we detach prohibitionist policies from their association with tribal identity, however, the status quo of intentional ignorance likely isn’t going anywhere. Apparently, it is still too much to ask most Americans when assessing a policy of prohibition to simply look at whether the policy actually works and produces positive results. Which isn’t a comforting thought.

Did I also mention the San Francisco 49ers lost a Super Bowl where some terrible calls were made at crucial, crucial, moments? So, anyways, if you need me, just look in a pit of sports despair.

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.

At 82, Judge Raymond C. Clevenger III of the Federal Circuit has no more patience for your bullshit and has no reservations about letting you know. When a Department of Justice attorney tried to dance around his question about the government collecting “blatantly illegal” PACER fees, he got brutal.

It’s an embarrassing exchange for the DOJ, but lucky for them no one is going to pay PACER to see it.

Monday’s argument is the latest in the ongoing battle over PACER fees. In 2018, Judge Huvelle determined that the ludicrous fees the government charges to access public documents exceeded the legal mandate to charge only what’s necessary to cover the costs of operating the system. Since then, the courts have gone on the offensive, telling Congress that PACER can never be free and backed its words with the vaguest nod to maybe possibly having data that no one else can see possible. Judge Audrey Fleissig told legislators last year that the system cost over $100 million to operate which conveniently tracked the roughly $140 million in revenue the system generates. But there were far fewer answers as to why a website is costing 100 million anything to run.

Judge Clevenger asked the DOJ attorney if, as most suspect, the government is siphoning money from the PACER largesse to fund the federal judiciary generally. As he put it, “redecorating the office” or “gold-plated toilets” improvements that should only be made with funds directly allocated by Congress as opposed to the profits of public record paywalls. Someone’s got to pay so the next Judge Kozinski doesn’t have to keep his porn on a private server!

When the DOJ attorney tried to spin her way out of it, Judge Clevenger got biting, asking her if she struggles as much in life as she does in court. It’s a good dig, but how about a little sympathy for how hard it is to answer questions in day-to-day life? When you’re in court at least you’ve done the research and have your talking points rehearsed. Imagine the sorts of questions you have to face as a DOJ lawyer just interacting with the world on a daily basis. “How are you going to pay off these loans?” “When should you make the jump to the private sector?” “What is it like to defend throwing children in internment camps?”

It’s rough out there generally in life.

Cranky Federal Judge to DOJ Lawyer: Do You Have Trouble Answering Questions in General or Just Here? [Law & Crime]

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.

As engineering schools go, it is hard to think of more than a handful that can compete with the prestige of Caltech. Not only is the school one of the most difficult to get into — don’t even bother applying without near-perfect SAT scores, or math and science grades — it also has the most faculty citations of any university in the world. No surprise then, that Caltech can boast of over 70 Nobel Prize winners among its researchers, faculty, and alumni, while continuing to foster an environment of research for both faculty and the student body. That research has led to the university earning thousands of patents, with the school reporting that it receives more invention disclosures (descriptions of potentially patentable inventions submitted by an inventor or inventor group) per faculty member than any other domestic university.

Like an increasing number of other prestigious research universities, Caltech has not shied away from trying to increase its multibillion-dollar endowment via patent licensing and enforcement. At the apex of those efforts is the case filed in 2016 by Caltech against Apple and its WiFi-chip supplier Broadcom. Nearly 2,000 docket entries — and both IPRs and resultant CAFC appeals — later, a Los Angeles jury issued a huge verdict in Caltech’s favor of over $1 billion, based on Apple and Broadcom’s infringement of five claims from three Caltech patents. The verdict, reported as the sixth-largest of all time in a patent case, could have been worse for the defendants had the jury found their infringement willful. Despite that incremental victory in the midst of a rough defeat, the immediate reaction to the verdict, particularly from Broadcom investors, was not what the defendants had hoped for.

From a news cycle perspective, two main types of patent events really command immediate broad media attention. Billion-dollar verdicts, despite their rarity in patent disputes, definitely make the cut, no doubt due to the inarguably immense amount of money that appears destined to change hands as a result. To a lesser extent, Supreme Court patent decisions can also garner media attention, with the amount of discussion of any such decision in the mass media dependent on how arcane the issue of law involved is. Returning to billion-dollar verdicts, it is interesting to note that this is the second one earned by a major research university against multinational technology operating companies in just the past few years. (Carnegie Mellon achieved one against Marvell Semiconductor a few years back.) If that doesn’t wake up some other tech transfer offices, I don’t know what will.

At the same time, it is important to remember that getting to a billion-dollar verdict is not easy. Nor has a billion-dollar verdict ever been paid without being modified on appeal or the case settling according to at least one report. On the first point, just one look at the number of lawyers appearing on Caltech’s behalf from Quinn Emanuel proves how intensive these types of high-stakes patent cases are. And how important it is for the university to find a funding partner for the case — whether that be a megarich firm like QE willing to work on some kind of  contingency arrangement, or through third-party litigation funding. For patent owners, both options come at significant cost, albeit only if a successful result occurs. Verdicts like this one, however, should at a minimum serve to increase the appetite for funders and firms to get behind university enforcement campaigns.

As for whether this verdict will stand up on appeal, that is a much more involved question. One critical issue on appeal will be damages, with the jury awarding $1.40 per Apple device in royalties as part of getting to their huge verdict. In response, the defendants raise two significant arguments. The first one, which to me at least is more legally compelling, is that the jury awarding damages against both Apple and Broadcom is inconsistent with the hypothetical negotiation construct for patent cases and is incompatible with the idea of patent exhaustion. I can only imagine that the Federal Circuit will need to grapple with that question absent settlement. Second, the defendants argue that the $1.40 royalty rate is grossly inflated, considering the amount of technology in smartphones and other consumer electronic devices that contributes much more to the demand for those products than what Caltech’s patents teach. Instead, they argue that a $.01/product royalty is more appropriate, though Apple has had mixed results challenging jury verdicts on awarded royalty rates in the past few years.

As for settlement prospects, there is recent precedent from the Marvell case for a university earning a multihundred-million-dollar windfall based on a settlement following a billion-dollar verdict. But that case presented some unique issues around extraterritorial sales that are very different than the damages issues that Apple and Broadcom face against Caltech. Add in that Apple has historically never paid big (more than $25 million or so as far as I am aware) to settle a patent case filed against it by a nonpracticing entity — Qualcomm doesn’t count, since they are an Apple supplier too — and we are in uncharted territory here. On one hand, it seems like Apple could decide that paying off Caltech will not set a bad precedent for its dealings with other nonuniversity NPEs. On the other hand, why start paying big money until you absolutely need to? Should be fascinating to see how things develop.

Ultimately, verdicts like this give a boost to the entire patent ecosystem, if only because they remind everyone that certain patents can actually be considered very valuable, at least by a jury. Absent settlement, we know that the legal wrangling is likely to continue for some time, as with any contested verdict in a patent case. We will see how things turn out. For now, however, we can sit back and watch as Caltech celebrates its billion-dollar bonanza. For as long as it stands, at least.

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.

Take a seat, #BabyNut, we’ve got some important legal matters to attend to. Lawyers are known for putting out over-the-top commercials during the Super Bowl, and this year was no different.

Just before halftime, small personal injury firm Maloney-Lyons aired this amazing commercial in the Mobile, Alabama area. In the commercial, name partner David J. Maloney announces that he’d like to become the “Godfather of Personal Injury,” and his associates proceed to gun down all of the major insurance company mascots.

They’ve made insurance companies offers they couldn’t refuse.

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.

“Uneasy lies the head that wears a crown,” in the famous words of Shakespeare. Applied to the world of law firms, it could be translated as follows: “It’s not easy being a managing partner.”

Managing partners have a lot on their minds these days. And last Thursday, at a lively panel at the annual meeting of the New York State Bar Association (NYSBA), five law firm leaders let us into their world.

Skillfully moderated by my colleague Craig Brown, Managing Principal of Bridgeline Solutions (Lateral Link’s temporary staffing arm), the panel featured Daniel Connolly, Managing Partner of the New York office of Bracewell; Louis DiLorenzo, Managing Member of the New York office of Bond, Schoeneck & King; Ronald Shechtman, Managing Partner of Pryor Cashman; Marc Landis, Managing Partner of Phillips Nizer; and Richard Scarola, Managing Member of Scarola Zubatov Schaffzin. The featured firms run the gamut in terms of size from Bracewell, a Biglaw firm with 400 or so lawyers; Pryor Cashman, a midsize firm with just under 200 attorneys; and Scarola Zubatov Schaffzin, a boutique with a dozen lawyers.

What did the panelists discuss? Here are some highlights (with thanks to Jack Newsham of Law.com for his excellent write-up).

1. Managing millennials.

Like it or not, in less than a decade, millennials will make up about 75 percent of law firm staff. So managing partners need to know how to manage millennials (and it won’t be long before millennials themselves are managing partners of major firms, since the oldest millennials are approaching 40).

According to Daniel Connolly of Bracewell, there is some truth to the view that millennials value work-life balance more than their predecessors. Sabbaticals, family time, and flexible-work arrangements all appeal to millennials — and, to be honest, who can blame them? But in a client service business, this does have implications for the business aspects of law firms — a topic the panel also tackled.

2. Developing business.

It’s harder and harder to be a “service partner” in this day and age. Ronald Shechtman said that at Pryor Cashman, 40 percent of partners originate $1 million or more in business, and two-thirds of partners originate $500,000 or more. While the need for a $4 million or $5 million book of business may be exaggerated, firms definitely want partners who can at least “pay for themselves.”

3. Keeping up the culture.

In the words of Shechtman, “The greatest management challenge for our firm is to maintain the culture that we have.” And I suspect that many managing partners would agree with him.

Of course, “culture” will vary from firm to firm (although every firm will claim to be “collegial”). At Pryor Cashman, for example, collaboration is key — which translates into a culture that values presence in the office. The firm also has low leverage, a partner to nonpartner ratio of about 1:1, which Shechtman credits for the firm’s strong retention.

But other firms have very different cultures, and they also manage to succeed. For example, an increasing number of Biglaw firms accommodate working remotely, which can help firms attract and retain talent (e.g., lawyers with significant family responsibilities).

4. Planning for the future.

Law firms are, to their credit, increasingly focused on succession planning. So it should come as no surprise that the topic came up at the managing partner panel.

Some firms have a mandatory retirement age, which they believe helps encourage (or even forces) older lawyers to transition business to the next generation. At the same time, in an age where people are living longer and healthier lives, some older lawyers can and want to remain very active.

Bracewell balances these considerations by having what Daniel Connolly described as a “mandatory but discretionary” retirement age — which encourages lawyers to make way for the next generation, but allows for some exceptions. All older partners must develop a plan for handing off business to their younger colleagues, however, regardless of when they plan to retire.

5. Advancing diversity.

The lack of diversity on the panel did not go unnoticed. As Marc Landis of Phillips Nizer put it, “You’re looking at five white men.”

But how — and how quickly — will law firms change on this front? Alas, that is the subject for another, much longer discussion.

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

I have not yet figured out a way to write about politics in a way that does not piss off friends on the other side of the aisle. I mean, look at the state of affairs in the country. Regardless of where you fall on the political spectrum — Democrat, Independent, Republican — I think everyone can agree that something is broken. You know what? I say vote them all out and start over.

But you know what subject is not a political to me? Privacy.

I have never fully understood why in the U.S. we place such a different value, a lower value, on privacy. Young people today seem hell-bent on displaying their entire lives on social media, they never hesitate to plug their personal or financial information in the latest app to purchase something, and some people have literally made a living out of having cameras in their homes.

Older Americans are not immune. Moms and dads, grandmothers and grandfathers, in a kind of odd attempt to keep up with young people, have taken to some of the same habits. I’m guilty of it too.

And I think I get it. The world has changed. We have all these new tools to communicate, to exchange our thoughts, promote stuff, and conduct the business of our daily lives. Tools that largely did not exist 25 years ago. So, some might say this is just a natural progression of societal needs or wants. This is the new normal.

But how did almost no one think that there might be some problems with this? That there may be consequences to the sacrifices we make on privacy?

I’m not that old, and in many ways, I feel blessed to have lived through the transition from the analog to the digital world, but I remember a time when privacy seemed to have greater value in the U.S.

So, when the National Institute of Standards and Technology issued a privacy framework last month, I was pleased to read it and even more pleased I could actually understand it. The NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management is “a voluntary tool intended to help organizations identify and manage privacy risk so that they can build innovative products and services while protecting individuals’ privacy.”

The Privacy Framework, which does not have the force of law, is designed to enable organizations to prioritize their privacy protection activities and outcomes to address a diverse array of privacy concerns and develop more effective solutions that may lead to better outcomes for individuals and organizations.

According to the NIST website, the Privacy Framework is intended to be used by organizations of any type or size, and it is sector agnostic, meaning it does not matter if you’re in legal, manufacturing, services, or software. Current technology trends, such as artificial intelligence and the Internet of Things, are a little scary for privacy and security professionals. But the Privacy Framework, which is designed to be compatible with any legal or regulatory scheme, can provide some guardrails for development in these areas as well.

Privacy, I think, has become a choice. And everyone gets to choose. The question, then, becomes what you’re going to choose (or sacrifice) in order to maintain some semblance of privacy?

Mike Quartararo

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

Today brings us unfortunate news from Japan, where a Freshfields attorney was killed in an avalanche during a backcountry ski trip. Barnaby Levy, 34, was a senior associate with firm who advised corporations and financial institutions throughout the Asia-Pacific region on transactional tax issues.

The South China Morning Post has additional information:

Barnaby Levy (Image via LinkedIn)

Levy was backcountry skiing with his brother and a local guide on the southern flank of 703-metre-high Mount Pinneshiri in the town of Nakatombetsu, in northwest Hokkaido, when the avalanche struck around 11:30am on Saturday.

Local emergency services responded to reports that a group had been caught in an avalanche and scrambled a helicopter to recover Levy from the mountainside and transfer him to a nearby hospital, national broadcaster NHK reported. Levy was pronounced dead a short while after being admitted.

Levy’s brother and the guide both survived. An avalanche warning for Mount Pinneshiri had been issued due to “unseasonably warm winter conditions,” but Levy and his brother went on an off-piste ski route nonetheless. According to local media, now an investigation has been opened into why they went ahead with those plans.

The firm released the following statement upon receiving news of the senior associate’s death: “Barnaby Levy was a wonderful colleague, friend and lawyer. We are shocked and saddened by this news and he will be greatly missed. Our hearts go out to his family and many friends at this difficult time.”

We here at Above the Law extend our condolences to Barnaby Levy’s family, friends, and colleagues during these trying times.

British lawyer who worked in Hong Kong dies in Japan avalanche [South China Morning Post]
Big-Law Senior Associate Killed in Japan Avalanche [Law.com International]

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.