Author: TSA Press

Comedian Adam Sandler’s “The Chanukah Song” has become a holiday classic for all regardless of whether or they celebrate the Festival of Lights. A familiar refrain (in all four editions of the song) is the affirmation that “instead of one day of presents” the children who celebrate Chanukah “have eight crazy nights!” (also the name of a Sandler holiday movie).

Surely, part of the crazy that Sandler references is the interaction with family, the giving and receiving of gifts, and, in addition, personal reflections on our own lives. In many ways, the holiday season is the perfect time to think about one’s own estate and personal planning, especially as it coincides with the entry of 2020.

And so, my gift to you are eight estate and personal planning topics for you to think about and discuss with your family and friends, one for each night of Chanukah, crazy or not.

1. Sign a Last Will and Testament: If you are over the age of 18, regardless of the size of your assets, it would behoove you to sign a Last Will and Testament. That document dictates who gets your money and possessions and who is in charge of your estate, including your electronic and social media accounts, when you die. If you do not like your immediate family, this is especially important because, without a Last Will, your local probate court will determine who gets the inheritance, subject to state law. Additionally, if you have children, the Last Will and Testament determines who becomes guardian of the minors when you die. If you do not appoint someone under a Last Will, the Court will choose the person for you, and, in addition, the person who is in charge of managing the children’s inheritance. Lastly, just writing a Last Will is not enough. You should sign it with proper witnesses and certifications as prescribed by your state’s laws. An unsigned Last Will is worthless.
2. Sign a Power of Attorney: A Last Will and Testament is the controlling document when you die. But what happens if you become incapacitated during your life as a result of illness or accident? Without a Power of Attorney your loved ones will not be able to access your individual financial accounts nor will they be able to estate plan, sell property, purchase property, or handle a host of other matters.
3. Sign a Health Care Proxy: A Health Care Proxy appoints an agent to make decisions on your behalf for medical purposes in the event you cannot make them for yourself. (Everyone should execute a Health Care Proxy while they are healthy so that in the event of illness or catastrophe, their agent has proper authority.) Further, you must discuss your health care wishes with your agent so that the agent understands your level of comfort in the event surgeries or more aggressive treatments are advised.
4. Purchase life insurance: Life insurance is an invaluable product that hopefully does not get realized for a very long time, if ever. Simply, if you have dependents, purchase a life insurance policy so that in the event of your death the survivors have a benefit that can be used to replace the monies that you brought into the family. This is very important if you have children for whom private schooling, camp, or college are planned. Additionally, if the family house is mortgaged, and you wish for the survivors to remain, then the life insurance proceeds will help to defray the costs. Both spouses require life insurance, as the death of either will surely have an impact on the family finances, regardless of whether a spouse works in or outside of the home.
5. Plan, or at least talk about, the disposition of your final remains: Admittedly this is a macabre topic for the holiday table, however, it is important to note family and religious traditions for the disposition of your final remains. Questions include whether you wish to be buried, cremated, or — in the state of Washington — composted. Perhaps you wish to donate your remains to science. Whatever the case may be, you should discuss it with your loved ones so that your final wishes are carried out.
6. Take an inventory of your assets: If you do not have an inventory of your assets, make one. Generally, a Last Will and Testament does not list individual assets. It can often be an arduous task for an executor to discern a decedent’s assets. If you make a list and keep it with your Last Will or give it to your attorney, there is at least a record of what your assets were on the date of the signing of the estate planning documents. Moreover it provides you with a knowledge and understanding of what you presently have and perhaps to what you may aspire.
7. Schedule doctor appointments: This one is not necessarily a legal discussion, however, it is very important. Part of adulting, whether you are in your twenties or eighties, is taking care of your business, both financial and personal. Get your yearly physical examinations so that any issues can be dealt with promptly. Illness has a way of creeping into life plans at inconvenient times. It is often an impetus for estate planning. My blessing for you is that you use the confirmed absence of illness to finalize your estate planning.
8. Talk to your family about your wishes and about their desires: Use holiday family gatherings to speak to your relatives and close friends about your wishes, should they be nominated as fiduciaries under your documents. Similarly, if you have loved ones who should be planning, encourage them to do so, ask if they have their affairs in order, and encourage them to think about these important issues. Unfortunately, when matters are put off, emergencies are created. At that point, a lot of time and resources can be spent trying to put affairs in order that could have been handled with much ease years prior.

Although the discussion of personal and estate planning may not be so funukkah, when done in good health and peaceful times, it can be a straightforward and pleasant process.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

For many, and according to most holiday TV shows, the holidays are a time for amusing conflicts with family and then Christmas reconciliations where you find the meaning and spirit of the season. Sure, you might have been left behind while your family went to Paris, but you discovered something about independence and love of your family, Kevin. You’ll need it in the sequel when you meet the future president (and only “Home Alone” cast member to be impeached, so far).

That isn’t what many feel during the holidays. For some, it is incredibly isolating. They are estranged from their families. For others, it is a time to remember past family outbursts and clashes because, of course, someone had to ruin Christmas dinner. Others have experienced tremendous loss during the year, and the holidays accentuate that loss. In short, while many thrive during this time of year, others do not. And cannot.

According to WedMD, holiday stress is attributable to: “Stress, Fatigue, Unrealistic expectations, Over-commercialization, Financial stress, the inability to be with one’s family and friends.” I would add to that the following: Expectations of others, and, often, being with those same family and friends. You can feel alone, even in a room full of people because, let’s face it, often times those who we love are those that stress us out the most.

I’m no stranger to having holidays ruined. I remember one fine Christmas someone hit a baby. Another, someone decided to start an argument. One year, I was the culprit by taking the bait. It makes one want to change things up, to do something different, to break free. But it can also cause bad behaviors, such as overeating, drinking one’s self free of the pain, or letting others control your thoughts and emotions to the point where you literally make yourself sick from stress.

As Jeena Cho points out, lawyers are more likely to feel depression during the holidays (and more generally) than the population at large. She offers some great advice about being mindful of your thoughts. It’s great advice, and I am tempted to just stop there and refer you to her post. (Seriously, please read it.) But, I have a few things to add from my own experiences:

5. If you are an introvert stuck in family gatherings, make time for just yourself. It can feel stifling if you are constantly barraged with people wanting to talk to you. If you need time alone, make sure to seek and demand it. Go for a walk. Take a nap. Use headphones to block out the noise and read. Regardless, it’s important to set time aside so you can recharge. Daily.
6. If you are feeling alone, a change of scenery might be necessary. Often, volunteering at a homeless shelter or other charity can trigger compassion that makes you feel more connected to people. It sounds cliché, but helping others is truly a way to help yourself. If possible, also reach out to family or friends. Often times, our (often warped) perception when we are alone and seeking others is that they are too busy, or don’t want to be brought down, and that prevents us from seeking the company we need.
7. Set strong limits with people. Unless your family are friends are all empaths, one or more of them probably likes to push buttons. If you have that one family member who likes to talk about something that you find uncomfortable and fails to understand clues such as changing the subject 50 times, then chances are you probably need to “take a phone call” or otherwise excuse yourself. Yelling isn’t a good option here. Often times people push buttons precisely because they want to control your reaction and emotions.
8. Practice compassion with yourself and others. Everyone is probably on edge a bit during the holidays. So, be compassionate with yourself. As you strive to assure your own self-care, you might feel that you are being selfish at a time of year designed for outward giving. But, as the Dalai Lama’s translator points out: “[It’s] the whole, ‘put [on] your oxygen mask first before helping others’ approach to self care –- which makes a big difference when you are dealing with the demands of raising children, dealing with a difficult boss, or facing a relationship crisis.”The path to wellness, particularly if recovering from psychological trauma, demands self-care. Those with anxiety, or children of alcoholics, know the stresses of being people-pleasers (even to their own detriment). Sometimes it is helpful to remind yourself you have mental health rights, such as those listed here (e.g., “I I have the right to say no to requests or demands I can’t meet; I have the right to change my mind.”)
9. Economize.  Holiday traditions can both be comforting and overwhelming.  If your usual holiday tradition involves baking 30 types of cookies, you should feel free to limit that if you don’t feel like baking. Perhaps it is a bad example, but it is one from my family. Traditions are meant to offer connections to our family and friends, not to bind. If they feel more like the latter than the former, perhaps it is time to change those traditions.
10. Stay in the moment. It can often be daunting meeting the demands of others. Friends texting you — while trying to carry on a conversation you don’t want to have — while you are asked to help with doing this chore — while thinking about stuff you left on the desk at work that … Breathe.  Remember that you are human, and that any person worth having in your life will understand when you need to engage in self-care. You can focus on where you are, and what you are doing.

My mind often meanders to the ghosts of Christmas celebrations past. It takes a great deal of effort not to let those ghosts ruin the present. Or, as the Dalai Lama points out, by focusing on the past or the future, our present is robbed. “There are only two days in the year that nothing can be done. One is called yesterday, and the other is called tomorrow, so today is the right day to love, believe and mostly live.”

I wish you and yours a peaceful and joyous holiday season.

If you are struggling, please seek help. The National Suicide Prevention Lifeline has a chat option, linked here. The phone number is 1 (800) 273-8255.  If you are deaf or hard of hearing, there are options here.

You are not alone.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

Let’s say you’re a bored billionaire who (somehow) just escaped one major self-authored crisis unscathed, in spite of the mortal dangers to your billionaire status. What do you do? Lay low for a while? Focus on making your company some money? Don’t be silly: First, you spend some time editing your Wikipedia page. Then you evade your dwindling band of babysitters, press the home button on your phone, realize your stock price has crested $420, giggle a little, and then indulge in your most self-destructive vice by tweeting out a reminder of two other crises you inexplicably created with your trademark sense of, uh, humor, we guess.

When Cleary fired a group of partners earlier this year while they prepared to bolt for Freshfields, folks started wondering if the era of lockstep partner compensation may have finally come to an end. The true traditionalists out there — including Cleary, Debevoise, and Cravath — continue to adhere to a partner pay model that hands out firm profits based on seniority rather than an individualized assessment of the partner’s value to the firm. It’s a window back to a more collegial time in the profession’s history.

Law.com reports that Debevoise just completed a comprehensive review of its comp before deciding — despite the slings and arrows of modern law firm competition — to stay the course. Moreover, the firm’s partnership agreed unanimously not to make any changes.

[Presiding partner Michael] Blair said he believes lockstep is the best system to attract and retain the best talent. “We think it’s a competitive advantage, and our clients tell us it’s a competitive advantage,” he said. “Our lockstep system frees us from any misaligned financial incentives that could get in the way of delivering to clients the best teams for the project.”

That competitive advantage manifests itself in allowing the firm to offer one-stop shopping to clients, willing to provide services that generate less revenue to address the needs of clients bringing in big money for other practice groups. It allows the firm to avoid a Balkanization of the workforce with associates held in inefficient fiefdoms unable to flow to their best use because of rainmaker demands. And Debevoise has turned those advantages into record profits.

A Law.com source said Cleary had explored a comp change as well, but the firm was more tight-lipped about it that Debevoise — likely because such a review could be cast as reactive given the high-profile firings this year. But it’s more than likely that Cleary sticks with its peer group and holds the line on compensation, if only because bailing now would make the whole Freshfields affair for naught. The extreme move of firing a group of departing partners was a principled stance in defense of a way of life — or at least a way of practice — that’s taking hits across the profession. Don’t give in now.

Lockstep may not be a viable option for everyone, but for the sliver of firms with the wherewithal to make it work, there’s no need to join the nouveau riche.

Debevoise Sticks With Lockstep Partner Pay After Compensation Review [Law.com]

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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.

Back in July of 2017, I wrote a column on these pages discussing the early patent battles between two high-flying biotech firms, Kite and Juno, as both companies raced to bring a miraculous cancer treatment called Car-T therapy to market. Just a month after that column ran — and despite the ongoing threat of Juno’s patent assertion against Kite at that time — Kite was swallowed up by Gilead at an eye-popping valuation of $11.9 billion. By the following January, Juno itself was acquired by Celgene at a price of $9 billion. (Celgene itself was acquired by Bristol-Myers Squibb earlier this year for an astronomic $74 billion; biotech is big business.) Both investors and patients hoped that those acquisitions would help supercharge delivery of each company’s Car-T therapies, with Kite’s Yescarta gaining the first FDA approval for a Car-T treatment in October 2017.

But the initial excitement around Car-T therapies, particularly Yescarta, has dissipated. Sales of the drug have not met expectations, resulting in Gilead having to take a writedown on a portion of Kite’s assets while also making a decision to run Kite as a separate business. Rendering matters worse, Kite’s attempt to invalidate Juno’s seminal ‘190 patent failed in both the PTAB and the Federal Circuit, leaving the company vulnerable to Juno’s pressing of its (along with Memorial Sloan Kettering, where the research underlying the ‘190 was undertaken) infringement claims in a California District Court.

Even back then, the endgame was clear. As I wrote in 2017, “it is clear that Juno’s patent will eventually reach its day of reckoning on the merits” against Kite. Having survived Kite’s IPR, the next day of reckoning of import to patent owners like Juno and Sloan is often a jury verdict. That day has come, with important ramifications for Kite’s value — both to Gilead and as a potential standalone entity if Gilead ever divests the company.

So what happened at trial? In what will likely enter the list of the biggest verdicts in patent history, the jury awarded Juno and Sloan Kettering $585 million in damages for sales of Yescarta, along with a robust 27.6% running royalty on future sales — bringing the total value of the verdict close in excess of $750 million according to reports. While the final damages award, if any, will have to wait for post-trial motions and appeal, the ‘190 patent for now ranks as one of the most valuable ever issued. While also standing as confirmation that royalty rates for pharma patents are among the highest ones going. Making matters worse for Gilead, news of the negative result had an immediate short-term effect on the company’s stock price, as is often the case when patent litigation news comes down for publicly traded companies — especially in pharma/biotech.

While this is just an interim result in the ‘190 patent saga, IP lawyers and their clients can draw some immediate lessons from these developments. First and foremost, this case is the poster child for acquiring companies really needing to account for patent risk — especially when a fundamental challenge to the target company’s core product or service is posed by the patent assertion of a competitor. Here, it was clear at the time of Gilead’s acquisition that the ‘190 patent was a substantial risk. At the same time, even a $750 million verdict pales in comparison to the hit Gilead has taken for overpaying for Kite in the first place. Still, Gilead (and companies in its position who want the short-term benefit of announcing a key acquisition) probably wishes it would have found a way to settle this case, if only to avoid the stock impact of the negative headlines from this trial.

Second, this case also illustrates the risk of filing an IPR in an attempt to dissuade a patent owner from seeking recompense for infringement. Yes, IPRs have proven very successful in eliminating patents for those accused of infringement. But when the IPR kill-shot misses, the repercussions (and the future exposure) are often more serious than if the alleged infringer didn’t take such an aggressive approach. Once a patent is challenged, any patent owner who doesn’t have the luxury of watching it be invalidated will surely fight hard to keep it alive. It will also be emboldened to seek maximum redress when and if the patent survives, as Gilead found out once it lost its IPR on the ‘190 patent.

Ultimately, Gilead has had a run of bad luck on the patent front, with both this verdict and the highly publicized lawsuit filed against the company’s blockbuster HIV treatment offerings by the U.S. government. But all is not lost, however, as the company continues to argue in both the Yescarta and HIV cases that the asserted patents are invalid. Whether those arguments eventually take root is unclear. At bottom, Gilead is surely hoping that the Federal Circuit will see things its way when the respective cases make their way up to that court. Until then, Gilead has surely learned a lesson about flying its kites too close to the sun, in terms of taking aggressive stances against patent assertions raised by powerful patent owners. Because a high-flying infringer’s kite makes a colorful target for a patent missile — especially when flown before a jury.

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.

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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.

It’s not hard to imagine having some ETFs you own stolen. Perhaps the broker you’ve been having an affair with misappropriated your accounts to make all sorts of unauthorized trades, potentially including said ETF shares. Perhaps in a bit of delicious irony, hackers broke into said brokerage account and transferred shares in a cybersecurity ETF with the ticker symbol “HACK” to their own accounts in Switzerland or the Caymans or wherever, demonstrating the value of such an ETF and thereby driving up its value, pouring salt in the wound. Pretty standard stuff.

Lawyers deserve all the flack they get for foisting legalese and other statutory conventions upon society. So when it comes time to explain the meaning of Christmas to a cold-hearted lawyer, maybe we should try to translate for the attorneys out there.

This image was kicking around social media over the last few days…

Alas the spirit of this statute will crumble at the Supreme Court when Justice Alito explains that the original public meaning of naughty was “possessing nothing” and lead the Court in declaring that poor people are automatically on the naughty list.

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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.

Have you considered legal recruiting as a profession? As 2020 gets started, Kinney Recruiting is in growth mode. We (may) want you…and vice versa. Here are a few things about us, what we do, and how we do it that might help you decide whether working with us is for you or for the birds. If interested, write me directly and let’s start a conversation!

First of all, please know that plenty of us, me included, were insulted when someone first said, “You’d make a great headhunter for lawyers.” My first thought was to ask whether the question implied I was not so great at actually practicing law. Now, I can definitely say, “Thanks, Marisa, for raising the idea! You changed my life for the better!” So can everyone who works with us. If you’re a people-person, someone has probably already told you that you should consider legal recruiting. What else does it take?

For us, it’s important that the people on our team be smart but not stuck-up. You’re going to take a lot of abuse if you’re doing what you’re supposed to do. People won’t return your calls, clients will refuse to pay you for deals you are 100% owed a fee for, and people like a certain “Bert” I dealt with awhile back might even accuse you of violating the Canned Spam Act and threaten legal process. If you’re too full of yourself, you won’t make it. On the other hand, every truly successful recruiter I have ever seen has a pretty high IQ, good self confidence, and an even higher EQ. There’s a lot of data you need to know to make matches work. You also have to listen first, talk second, and lead always by example. It’s a delicate balance done right. Our style is not pushy; we try to be the most trusted broker. It works.

At Kinney Recruiting, we back up our trusted broker role with data and back office support. Our knowledge management and support team is second to none. Our recruiters also earn at the highest levels in the industry. We do not have strict restrictions based on territories, and our structure is designed to reward teamwork. Many of our competitors of much larger size are little more than a big brand-sharing arrangement; internally, the work is done in silos. Not us.

This is a full time job and a profession. To do well, you will need to work at least 40 hours per week, travel regularly across town or across oceans, and always be available. Our recruiters don’t just work 9-5 and become hard to reach after hours. We may not be in the office, but people can always reach us.

We have a lot of fun doing what we do, but we don’t do it only for fun. Our recruiters’ average earnings rival or exceed those of the attorneys they typically place. If you think you might be a fit, let us know. If you have a friend who you think would be AMAZING at legal recruiting, refer them to us for a conversation. For any successful referral, we pay a referral fees (the amount will depend on how well they do) which you can keep or donate to the charity of your choice. So, whether for yourself or someone else, get in touch and start a conversation!

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Robert Kinney is the founder of Kinney Recruiting LLC. He can be reached day or night on robert@kinneyrecruiting.com.

The president of the United States was impeached for only the third time in history. Let the obscure legal theorizing begin! Joe and Elie break down the curious argument that the House doesn’t even need to hand over the articles.

And since recording this, Trump’s leaned into the idea that refusing to hand over the articles means the impeachment hasn’t happened, which adds a whole new layer to procedurally stupid to this era in American history.

When I was a summer associate over eight and a half years ago, I received my first smartphone. Even though I was only going to work at a firm for a few months, the firm decided to issue me a brand-new Blackberry, and since I only had dumb phones up until that point, I was really excited to finally get that phone. When I expressed excitement at receiving the device, the technology person at the firm told me that having a smartphone was a blessing and a curse. Although I would now have the convenience of a smartphone, people at the firm now knew that I could be reached around the clock and would expect me to respond to emails outside of normal working hours.

In the present day, pretty much every attorney has a smartphone, and communicating with people outside the office at all times of day is easier than ever. As a result, partners may wish to send emails to attorneys after hours so that associates can begin working on matters as soon as possible. However, barring truly extraordinary circumstances, bosses shouldn’t send emails over holidays or weekends, and that includes the holiday breaks many people in the legal industry take at the end of the year.

It may seem like common sense that bosses shouldn’t send unnecessary emails over weekends or holidays. Just because someone works for an employer does not mean a boss should expect their employees to be on call all the time, and managers should determine if an email is important before sending it over weekends or holidays. However, I have worked with many partners at several law firms who feel it is okay to send nonemergency (and sometimes completely unnecessary) emails whenever they wish, including weekends or holidays.

One time, earlier in my career, I had to attend a virtual training run by one of our firm’s biggest clients. A handful of associates and I attended the virtual training on a Friday, and the training was like pretty much any other type of workplace training in the legal profession. It lasted about an hour, and afterward, all of the associates went about their day.

The next morning (a Saturday), the main boss in our office decided to send an email to the attorneys who attended the training. The partner asked what everyone thought of the training and if there were any suggestions for improvement for future trainings. I was on a run at the time, but because I wanted to impress the boss by showing I was accessible on a Saturday, I stopped jogging and typed out a response on my phone. Within a half hour or so, most of the other associates responded to the partner, since they also probably wanted to impress the boss.

However, one attorney did not respond that day. This associate didn’t even respond to the partner the next day (Sunday). Rather, the attorney waited until first thing Monday morning to respond to the partner. This delay became the scuttlebutt around the office, since the other attorneys wanted to know if that associate had failed to review email over the weekend or if the associate was trying to make a point by not responding sooner.

However, the partner was in the wrong here, and thinking about this story now, I have a lot of respect for that associate. There was no compelling reason for sending that email on a Saturday, since there was absolutely no advantage to receiving feedback about the presentation over the weekend instead of during the workweek. Maybe the partner wanted to send the email out while the presentation was still fresh in everyone’s minds, but that seems like a poor excuse for interrupting everyone’s weekends when we could have provided this feedback on Monday or after the presentation on Friday.

Not all bosses flippantly send emails over holidays and weekends. One time, at a different firm, a partner emailed me on a Sunday about an emergent matter that needed to be handled the next day. An answer needed to be filed in a case, and the partner related some important details about the lawsuit and told me that he had placed relevant materials on my desk. This partner apologized profusely for disturbing my weekend, and I of course understood that the nature of the matter required that the partner email me over the weekend. It was extremely rare to receive an email outside of working hours at that firm, and partners respected their associates’ time off.

In any case, just because associates are accessible through email pretty much all the time does not mean partners should send emails to associates whenever they want. Employees deserve time off, and receiving emails from work can make it more likely that an attorney will burn out and provide less dedication during normal business hours. If a partner wishes to send an email to an associate over a weekend or holiday (or even at night during the workweek), the partner should evaluate if the email is absolutely necessary to send at that time or if it could wait until normal business hours. In that way, partners can respect the work-life balance of their associates while ensuring that emergent matters are handled as soon as possible.

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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.