Author: TSA Press

This is the interview the MDC Deputy National Spokesperson, Luke Tamborinyoka had with the ZBC on Friday, 18 October 2019. ZBC in its wisdom or possibly lack of it decided not to flight the interview.

I am long on record as hating Halloween. Halloween involves: children begging in the streets like vagrants, white people offending me with their face, unleashing “sexy” costumes in a pathetic attempt to make up for 364 days of sexual repression, an entire movie industry that revolves around white people being too complacent to react appropriately to supernatural events, the shaming of sex offenders, rapidly rotting gourds, and, as a parent, an intense amount of time, effort or money spent on meeting the fickle imaginations of your children. If I could exorcise one feature of our culture… well, it would be Republicans. But Halloween would be in my top five.

The only good part about Halloween, for me, is that I’m a content producer and Halloween always brings opportunities to talk about people who screw up, incredibly and publicly, when trying to make something out of this dead-ass holiday. And “Halloween came early” this year, thanks to the creative geniuses at the Atlanta District Attorney’s Office.

The Paulding County DA put up a little Halloween display in their lobby. When I first saw the story, I didn’t know what the big deal was. Here it is from WSB-TV:

Crime scene, skeleton, Halloween. This checks out. I mean, who cares? Who even goes to the DA’s office anyway… OH WAIT:

Channel 2’s Aaron Diamant talked to a local ethics expert, who called the display wildly unprofessional and said it has the potential to retraumatize crime victims who have to come to the office to talk to prosecutors.

Diamant spoke to the woman who took the picture. Lauri Newsome said she went to the district attorney’s office with a few family members to try to get a meeting with District Attorney Dick Donovan about a sensitive case.

She was outraged to find the fake crime scene.

“You step back. It startles you,” Newsome said. “It doesn’t help how you’re feeling. I think if I’d had a family member murdered it would have affected me worse.”

Newsome fought back tears as she described being startled by the display.

I mean, I wouldn’t have thought of it this way. But, there again, this is why I don’t truck with Halloween. What the hell is the upside? “I really feel better about the administration of justice, now that I know my local D.A. can be SPOOKY!”– said no one, ever. Even though I feel like this woman’s complaint is a little overwrought, the value of D.A. lobby skeletons is so de minimus that I can’t understand why anybody would bother in the first place.

‘Cause that’s the other thing about Halloween, people who screw up VOLUNTEERED to do this to themselves. Last year, I dealt with people — white people, MULTIPLE white people — asking me if it was “okay” for them to PAINT THEIR KIDS IN BLACKFACE so they could go as Black Panther. Like, blackface UNDER the Black Panther mask… JUST IN CASE! And, after saying “JESUS CHRIST WHAT’S WRONG WITH YOU?” the question that always rattled around in my head was why. Why would you volunteer to do anything slightly questionable for the sake of Halloween? How drab is your life that you need to spice things up with this kind of forced BS? If you need to dress up that badly, go see Rise of Skywalker dressed as Chewbacca LIKE A FREAKING ADULT.

Anyway, I’ve lost my train of thought about the D.A. Umm… yeah, don’t spookify murder victims when your business involves meeting with the families of murder victims. Seems like a solid rule.

Another good rule: If you are not 100 percent confident that you know all the rules, just sit on your pumpkin and ride this holiday out.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

In the compliance world — especially as it relates to deal-making and neutralizing corruption — due diligence is risk assessment commandment. When, however, is enhanced due diligence warranted? What motivates firms to decide if a third party should undergo an even stricter, more refined level of scrutiny? What are the costs and challenges?

The importance of enhanced due diligence is borne out in results from the recently completed Compliance Week Survey on Anti-Bribery and Corruption, conducted in conjunction with Refinitiv.

The pitch for an EDD program is a straightforward one: No enhanced due diligence investigation is ever the same. By undertaking a detailed review of new and existing customers and third parties, you can help guard against reputation and regulatory risk.

Nearly 90 percent of respondents to the survey said they put at least some of their third parties through these enhanced reviews with an eye toward safeguarding their reputations and complying with both foreign and domestic legal demands. The goal: Reducing uncertainty and risk and making more informed, safe, and profitable business decisions.

What were the biggest challenges firms face at the enhanced due diligence stage of their screening process? Responses included cost of enhanced checks (30.7 percent); lack of knowledge (31.3 percent); delivery time (16.9 percent); and data security (14.5 percent). On a scale of 1-5 (where five was the strongest), respondents were asked which factors weighed heaviest in their decision on whether enhanced due diligence was needed. Top answers included geographical risk, political risk, industry-related risk, past behavior, and the importance of the third party to the business. To grasp when enhanced due diligence — increased screening and analysis of otherwise standard data collection — is necessary, we turned to Kevin Bogdanov, Director of Market Development – Risk, Americas for Refinitiv’s customer and third-party risk management business. He is currently exploring how data, technology, automation, and AI will disrupt and redefine of Know-Your-Customer and third-party risk compliance.

“Enhanced due diligence really just fulfills a role within a certain stage of the due-diligence cycle,” he says. “You’ve got a risk assessment that your company will usually leverage and using that assessment you will determine what is risky for your business, in terms of cyber-security, inquests, bribery, corruption, or whatever. So, off the back of that, you might want to determine where there might be heightened exposure that requires greater due diligence to make sure that you really go out to those problematic areas.” “These are just a couple of examples,” he adds. “But if any of these criteria or a combination of these criteria exist, then that is going to necessitate a greater level of due diligence. You would ideally have a risk matrix and risk assessment from the onset to determine what matters to you in terms of where your risk is and then, if any of those criteria are established in the available data, you would obviously go ahead and warrant some deeper diligence.”

Once committed to that process, does enhanced due diligence retain a given life span? The answer: “Sort of.” “There is a process here, an end process, ideally,” Bogdanov says. “Obviously, you can’t sort of screen, or take your diligence at a point in time, and assume that nothing changes. However, if you just look at a couple of examples of things that can change — ownership structures, loans, joint ventures, new product lines, and new markets that the businesses will enter — any one of these changes may be a trigger. Another big one is mergers and acquisitions.” “Any of these types of changes will fundamentally upend in the level of risk and the type of risk that is inherent in a third party. So, what you need to do is you need to establish a cadence and framework for continuous monitoring of those parties.”

Keep reading / access the full report…

A second woman, this one a former Human Resources manager at the firm, has come forward with allegations of inappropriate behavior against former DLA Piper partner Louis Lehot. The woman anonymously filed a complaint with the Equal Employment Opportunity Commission alleging Lehot intimidated her and that she was “physically afraid” to be around him, going so far as to say she was uncomfortable being in the building when Lehot was in the office.

The HR manager further alleges that when she complained about Lehot’s inappropriate behavior she was told “Louis is just Louis.” She also says that despite a history of positive performance reviews she was fired from the firm after she complained about Lehot.

Earlier this month, DLA Piper partner Vanina Guerrero released an open letter to the firm, and filed a complaint with the EEOC, alleging that Lehot, repeatedly sexually assaulted her. She also wants the firm to release her from their mandatory arbitration agreement so she can pursue her claims in court. The firm has been conspicuously silent on the forced arbitration agreement — despite the attention their arbitration stance in this case has garnered, but, they did announce that Lehot had been let go from the firm. Then the firm put Guerrero on leave, saying they’d uncovered allegations unrelated to Lehot during their investigation of her claims. Lehot released a statement yesterday contesting the allegations against him and saying Guerrero was “exploiting” the #MeToo movement.

As reported by Law.com, Jeanne Christensen, partner at Wigdor who represents both women, took the opportunity to lash out at the firm’s response to the allegations against Lehot, saying, “The era of DLA Piper protecting its male rainmaking partners at the expense of the physical and emotional safety of the firm’s female employees must come to an end.” She went on to say:

“How many more women must come forward with tales of abuse by Louis Lehot before DLA Piper stops retaliating against female employees who dare report misconduct by male partners?” said Wigdor partner Jeanne Christensen, who represents both women. “Having now watched DLA Piper engage in a public campaign of victim-blaming and retaliation against Ms. Guerrero, it would come as no surprise if other women at DLA Piper with relevant information are terrified of coming forward,” she said in a prepared statement.

DLA Piper responded to the latest round of allegations, saying this development was designed to distract from the firm’s investigation into Guerrero and contesting the allegations:

“Consistent with Ms. Christensen’s previous communications with the media, her most recent letter is filled with inaccuracies and falsehoods, which will be demonstrated through the proper channels at EEOC,” the firm said.

Lehot has not yet responded to these new allegations.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

To presidential candidate Andrew Yang, automation is a looming nightmare for American workers, particularly for truck drivers (all 3.5 million of them and the 3.5 million service workers who support them). During the most recent presidential debate, Sen. Elizabeth Warren, arguably the Democratic front-runner, pushed back against Yang’s dire warnings, arguing that bad trade policies represent a larger, or more “real” threat to future employment than automation. The all-too-brief exchange has thankfully led to a larger discussion over what Americans face in a 21^st century economy, with some experts viewing Yang as being completely “full of it.”

I agree with these critics of Yang who point out that an increase in the prevalence of automation in society has coincided with sharp declines in poverty and that all signs indicate poverty will continue to decline at the same rapid pace. Accordingly, I do not share Yang’s fearful vision of mass unemployment. Moreover, Yang’s proposed policy solution to the threat of automation of a human dividend (otherwise known as Universal Basic Income or UBI) has also received significant skepticism.

Simply put, UBI is a policy of free money. The only condition would be, as Rutger Bregman describes, that you “have a pulse.” For what I assume are obvious reasons, UBI is rather controversial. For example, the same critic I cite who doubts Yang’s claim regarding the fear over automation describes Yang’s proposed solution of UBI as “lazy.” Yet when one examines the results of UBI wherever implemented in real life, as historians like Bregman cite, the policy can demonstrate limited, but also discernable benefits.

Of course, some claim UBI will cost more than the numbers put forth by Bregman. Indeed, if the policy of UBI were applied in a true universal sense here in the U.S., as in every American received an income, then the costs soar into multiples of trillions. Accordingly, I don’t believe anyone can make a reasonable case that a true universal form of UBI is currently a viable policy, yet. More targeted versions of UBI become more reasonable in cost, yet it is likely such skepticism over cost will continue to present insurmountable obstacles to policies such as Yang’s UBI, or Warren’s universal healthcare/free college America. Equally common is the answer that such costs can be borne by a necessary increase in taxes, primarily on the wealthy. Entirely missing from the discussion of cost is the impact of emerging human access to off-Earth resources can have in a 21^st century economy.

I suspect that by including humanity’s increasing ability for space travel, it might seem as though I am introducing more uncertainty, or perhaps more sensationalism into the discussion. In reality, the benefits of an investment in space are far more certain than any economic proposal proposed by Warren or Yang — or any politician, for that matter. To explain, we currently have the capability of implementing fully automated missions that can map, sample, analyze, and bring back material from near-Earth objects. Objects that exist in numbers that are hard to fathom and contain every mineral and substance (including water), humans value. In other words, the human struggle over scarcity of materials and dependence on finite Earth resources is over, yet, this fact never seems to enter discussions regarding a 21^st century economy. I suspect the silence is due to the fact that the benefits of space likely sound more far-fetched to the average American than human Earth-based policies like UBI, or universal healthcare. But as I keep trying to illustrate, human access to what amounts to a limitless quantity of resources in space is guaranteed; indeed, we have already achieved this access. What’s needed is more understanding and discussions over the extent to which this access alters human economies/societies.

Try to stay with me here, but this is how it will likely play out in the 21^st century. Remember, we currently possess the ability to map, sample, and mine near-earth objects: The first near-Earth object that we would want to mine would be an iceteroid or comet, given they contain copious amounts of the two main ingredients of rocket fuel (hydrogen and oxygen). Even better would be directing an iceteroid or comet into one of Earth’s stable Lagrange points, where its materials could then be processed into a refueling station for spacecraft launched into low Earth orbit via ever cheapening and cost effective reusable Earth rockets. With such a refueling station at one of earth’s L-points, the cost of traveling far beyond Earth orbit drops dramatically, allowing for the even cheaper capture of more iceteroid’s or mineral based objects. These resources can then be assembled in other L-points — without having to exploit human labor or fragile earth ecosystems — to create giant habitats, large enough to have adequate radiation shielding and spin for gravity. Such a habitat could then be set on an orbit that continually travels between Earth and Mars, possibly utilizing gravity assist to maintain velocity instead of traditional fuels. We could even send such habitable structures to other planets within our solar system such as Jupiter or Saturn that have moons which contain large oceans of water that could be made habitable or simply extracted via space elevators that, while not feasible here given Earth’s strong atmosphere, could possibly operate in the far less dense atmosphere of Mars.

Again, I know how this might sound to some. But given that multiple candidates for president are promoting policies like universal healthcare, free college, green new deals, and eliminating dependence on fossil fuels — policies that would require trillions upon trillions of capital investment — before presenting a viable plan for how to pay for it all, that I can use reasonable evidence to prove my kooky-sounding space-mining plan will indeed pay for itself should make it more credible, right?

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.

On a far too frequent basis, members of the legal profession see news reports about partners at some of the largest law firms in the world who have allegedly committed acts of sexual harassment, misconduct, or assault against their associates and fellow partners. Some forward-thinking firms are seeking ways to stop this sort of foul behavior from happening in the first place.

One Biglaw firm has finally come to terms with the fact that money is the motivating factor for attorneys to remain within their hallowed halls, and the powers that be plan to hurt these partners where it matters most: Their wallets.

According to Legal Week, Freshfields Bruckhaus Deringer will be setting up a “conduct committee” and doling out stiff financial penalties for partners who have been warned about their behavior. How stiff are we talking? Here are the details:

According to a person with knowledge of the matter and documents seen by Legal Week, a new “conduct protocol” would mean partners who are subject to an internal investigation process that results in a final warning about their behavior would face an “automatic fixed financial penalty” of 20% of their profit share for a period of 12 months. …

The new conduct protocol, which, according to the person, was deliberated over by the partnership council within the last two weeks, is designed to “reset the collective understanding around the expected standards of behavior” and to demonstrate the partnership’s “commitment to improving our culture.”

In a statement given to Legal Week, senior partner Edward Braham said: “We are committed to improving behavior and inclusiveness. For more than a year we have been running a global behaviors program to drive culture change, which includes reviewing and adjusting our HR processes, governance and systems across the firm. We want to ensure that positive behavior is consistently valued and that inappropriate behavior is called out and acted upon. The plans for a conduct committee and protocol are part of this ongoing program across the firm.”

Will more Biglaw firms be inspired to tie partner pay to behavior-based incentives? If it does something to stem the tide of partners’ sexual improprieties, we certainly hope so. We’ll be closely watching this new program to see what comes of it.

Freshfields to Establish Financial Penalty for Attorneys’ Bad Behavior [Legal Week / American Lawyer]

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 California Consumer Privacy Act,  the most significant privacy regulation ever enacted in the United States, takes effect in January 2020. In order to help in-house counsel and legal departments learn what they need to know about the implications of the new law, we’re hosting our free “Cramming for CCPA” webinar on November 13 at 11:00 a.m. ET.

Our expert panel, led by Dave Feldman, Director of Offerings, Axiom who will be joined by global privacy experts, will provide insight into how their organizations’ CCPA implementation plans are proceeding. What key actions are they undertaking? What major roadblocks and challenges are they facing? What advice can they provide their peers regarding how to move swiftly and strategically to get their companies CCPA compliant?

In addition to these real world case studies, our program will also address:

• Where to start and the minimum requirements for compliance;
• Winning management buy-in for building your privacy program;
• How to set up a mechanism for consumers to exercise their rights; and
• The penalties for noncompliance and data breach.

Brian Dalton, VP of Research at Above the Law, will host the discussion.

Is there anything that Justice Sonia Sotomayor can’t do? Raised by a single mother in a Bronx housing project, she graduated from Princeton (summa cum laude) and Yale Law School, worked as a prosecutor in the legendary Manhattan District Attorney’s Office, and served on two of the nation’s most prestigious courts (the Southern District of New York and the Second Circuit) — all on her way to becoming the Supreme Court’s first Latina justice.

Her talents as a writer go beyond judicial opinions. In 2013, she published a bestselling, critically acclaimed memoir, My Beloved World. Earlier this year, she published a bestselling, critically acclaimed children’s book, Just Ask! Be Different, Be Brave, Be You.

Given her tremendous professional success, Justice Sonia Sotomayor is an excellent source of career advice. Even when she’s not providing tips for professional success per se, we can learn so much from her — as I did this past weekend, when I returned to Yale Law School for my 20th law school reunion and had the chance to hear her speak.

On Saturday afternoon, Justice Sotomayor, a member of the YLS class of 1979, sat for a public interview with Dean Heather Gerken (a trailblazer in her own right, as the law school’s first female dean). Actually, “sat” isn’t the right verb; Justice Sotomayor likes to walk, so the two conducted much of their conversation while ambling about the auditorium Oprah-style, wearing lavalier microphones.

Their free-ranging discussion was frank, fascinating, and funny — and it felt quite relaxed, even though it took place in the vast and formal space of Woolsey Hall, before an audience of more than 1,500. Justice Sotomayor and Dean Gerken didn’t set out to provide career advice — but their conversation inspired within me the following four tips for professional success.

1. If you don’t understand, just ask.

Why did Justice Sotomayor give her children’s book the title Just Ask? Here’s how she explained it to NPR (an explanation she shared with the YLS audience):

Supreme Court Justice Sonia Sotomayor was diagnosed with Type 1 diabetes early in life, and ever since has given herself insulin shots before she eats, to help manage her blood sugar levels. No big deal. But some years ago, she had an upsetting experience at a restaurant.

She was in the restaurant bathroom, just finishing up her injection, when another woman walked in. They both returned to their dinners, but as Sotomayor left the restaurant, she heard the woman from the restroom [tell her dining companions]: “She’s a drug addict.”

Sotomayor stopped, turned around, and said: “Madam, I am not a drug addict. I am diabetic, and that injection you saw me give to myself is insulin. It’s the medicine that keeps me alive. If you don’t know why someone’s doing something, just ask them. Don’t assume the worst in people.”

The justice’s book, Just Ask, explains a dozen different challenges faced by children — including diabetes, dyslexia, and asthma — so kids can learn to understand and celebrate, rather than fear or hide, what makes them different.

“Just ask”: Wise advice for kids and for life, but applicable to adults and careers as well. Young lawyers — for example, junior associates at law firms, or law clerks to judges — frequently make the mistake of not asking enough questions. As a partner or judge explains how they’d like something done, the young lawyer, not wanting to appear ignorant, doesn’t ask questions to clarify what’s unclear. The resulting confusion then causes the young lawyer to waste a lot of time, make mistakes in the project, or both.

As explained by another legal luminary, former Manhattan U.S. Attorney Preet Bharara, in his own bestseller, Doing Justice, asking questions is how we learn and grow. So don’t be afraid to ask “dumb” questions; the answers might surprise you.

2. Keep yourself open to possibility.

I’ve written about this before, but it bears repeating. In telling the story of her amazing career, Justice Sotomayor offered an excellent example of the role that chance plays in our professional lives — and how we must be ready to seize the chances offered to us.

As a 3L at YLS, Sonia Sotomayor did not have a job lined up for after graduation, and she was trying to figure out what to do. Walking down the main hallway of the law school one day, she spied some delicious cheese plates inside a classroom — refreshments for a panel discussion and reception about public service careers. Overhearing that the last speaker was being introduced, she saw an opportunity to enjoy some free cheese and snuck into the back of the classroom.

That speaker was none other than Bob Morgenthau, at the time the Manhattan District Attorney. In his remarks, he told the students, “If you come to my office, you’ll have more responsibility at age 25 than any of your classmates.” That pitch appealed to the young Sotomayor.

When she spoke with Morgenthau at the reception afterwards, he urged her to apply. She did, she got the job, and she embarked upon a successful career in public and government service. The rest is history — and it all started with some plates of cheese.

3. Prepare, prepare, prepare — but be prepared to pivot if necessary.

When she was a young prosecutor in the Manhattan DA’s office, her senior colleagues repeatedly emphasized the importance of preparation. The best trial lawyers think about every possible eventuality and prepare accordingly.

But even the best-laid plans often go awry. You might have prepared a beautiful presentation as a prosecutor, but trials are unpredictable things — and in just a few minutes, a single witness can blow up your entire case. And when that happens, you need to adapt.

The same goes for your career. You pick a practice area based on extensive research — but when you actually start working in it, you discover it’s not what you expected. You select a firm after ample due diligence — but two years in, you get laid off.

When these unfortunate surprises happen, ruining your carefully constructed plans, you can’t just curl up into the fetal position and cry. You need to regroup, figure out another path, and move forward.

4. If you’re unhappy in your job, then do something about it.

People don’t like to admit when they’re wrong — and this is especially true of lawyers. But as Justice Sotomayor told the YLS audience, “Don’t be afraid to say, ‘I’ve made a mistake.’”

In the career context, she explained, this failure to acknowledge error often leads lawyers to stay too long in jobs they don’t enjoy. But it doesn’t have to be this way.

“Take chances,” the justice said. “As a talented lawyer, you can change paths at any time.”

Disclosure: All links to books in this post are affiliate links.

Earlier:

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.

As we approach the end of the 2010s, one of the defining features of the decade for patent lawyers has been the increased willingness of the Supreme Court to hear and decide patent cases. In contrast to the first decade of this century, where seven out of 10 years saw one or fewer Supreme Court patent decisions, most years this decade have seen three or more patent decisions by the Supreme Court. Which is an important development, because while some of the Court’s recent patent decisions have been more impactful than others, it is indisputable that there are significant ramifications for IP owners whenever the Supreme Court speaks. 

Considering that on balance the Supreme Court’s pronouncements have been perceived as negative for patent holders, it is hard to ignore the Court’s arguable contribution to the well-documented decline in patent values over the past decade. A decline particularly exacerbated in the minds of many by the Court’s Alice and Oil States decisions, on the issues of patent eligibility and IPR constitutionality, respectively. Or TC Heartland for that matter, which has erased venue-based advantages previously enjoyed by patent owners, by limiting patent enforcement to venues where the alleged infringers are incorporated or have a physical presence. Taken together, the Court’s recent jurisprudence has shifted the patent litigation landscape on a number of critical fronts. Ask any patent lawyer or patent owner if you need confirmation.

In light of the Court’s increased attention to patent issues, it is fair to ask what factors may be behind the phenomenon. Increased division of opinion at the Federal Circuit is one likely contributor, as has been the need to resolve issues arising out of the passage and implementation of the America Invents Act. A recent Iowa Law Review article by Boston University’s Paul R. Gugliuzza suggests another interesting factor at work as well. In his view, “[E]lite lawyers’ remarkable success in obtaining certiorari may help explain why the number of patent cases heard by the Supreme Court has increased so substantially over the past decade.” While I agree with his thesis, we must first clarify what he is getting at with his reference to “elite lawyers.”

Professor Gugliuzza defines an “elite Supreme Court lawyer as someone who has presented oral argument at the Court in five or more cases in the current and ten preceding Terms, combined.” As you can imagine, that is rarefied company. And that small cadre of elite lawyers handled around half of all Supreme Court oral arguments in one recent term. Moreover, that small group of lawyers has increasingly found clients interested in hiring them for patent matters, whether to argue Federal Circuit appeals or to file cert petitions in the Supreme Court. The latter activity has more than doubled this decade as compared to last, perhaps as clients have seen better results when using an “elite lawyer” to petition the Supreme Court. With more patent-based petitions being filed by top-drawer Supreme Court practitioners, it is not surprising that we have seen more uptake of patent cases by the Court. 

Likewise, the increased participation of Supreme Court expert advocates at the Federal Circuit level may also contribute to better positioning of cases in terms of attracting Supreme Court interest. One consequence of this shift from patent specialists to appellate luminaries for handling patent appeals, as noted by Professor Gugliuzza, is that ”patent law — particularly at the appellate level — is being shaped by the most notable generalist litigators at the country’s most prestigious law firms.” Whether or not that is a good thing is up for debate.

For Professor Gugliuzza, one important benefit of the increased activity amongst “elite lawyers” in patent cases is in helping to provoke necessary Supreme Court oversight over the Federal Circuit. In his view, “elite advocates can pick and choose specific legal issues on which settled Federal Circuit law is particularly in need of reform and that the Supreme Court might be willing to disrupt.” Adding to the Court’s comfort in dealing with such important issues is its confidence that “elite lawyers” will handle such difficult cases with aplomb. 

At the same time, there is also the danger that both non-patent specialist “elite lawyers” and the Court will focus more on those patent law questions that center on procedural or statutory issues, rather than important technological elements, such as questions of validity. As noted in the article, “the Court’s agenda in patent law doesn’t always focus on the core issues that are most salient to the day-to-day administration of the patent system. Indeed, it took more than a decade and numerous unsuccessful cert. petitions before the Court finally tackled (and overturned) perhaps the most important and controversial ruling the Federal Circuit ever made: that patent claim construction is a pure question of law subject to de novo review on appeal.” Put another way, when the Supreme Court’s patent agenda is being shaped in part by elite generalist lawyers, there is always the danger that key issues take longer to receive necessary attention.

Ultimately, Professor Gugliuzza’s article is a fantastic example of academic scholarship that practitioners and their clients should be reading and thinking about. For one, much has been made of the impact of lobbying by industry interests on Congress when it comes to patent law changes in the past decade. At the same time, the increased role of “elite lawyers” in patent matters can be viewed as a subtle type of judicial lobbying by the clients with the good sense and resources to hire those advocates for their appellate patent needs. The consequences of this shift towards “elite lawyers” thereby resonates down to the entire patent ecosystem. The supreme solicitor club may be a small one, but like the Court itself, their reach is both deep and wide in the patent space.

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.