Author: TSA Press

Fidelity Investments’ evolution from mutual fund giant donating money to white nationalists to cryptocurrency player with correspondingly less money to donate to white nationalists took another step forward last week. The New York State Department of Financial Services, presumably in between howls of laughter, awarded Fido a crypto license. Obviously, fake money immediately took another nosedive, with bitcoin falling to its lowest level in six months as the Chinese once again took a large needle to the bubble and others recognized the Fidelity news as the contraindicator it is, once again putting John McAfee’s penis in mortal danger.

Despite encroachment from the GRE, the LSAT is still the first step for most people on their journey to becoming a lawyer. The November administration of the LSAT, which is today, is the largest of the year with over 26,000 people taking the test. But unfortunately for some of them, it isn’t quite that simple.

There are some issues with the latest administration of the LSAT. Though the exam recently moved over to an all-digital version of the test, it isn’t tech issues causing the snafu. Nope, it’s some good, old-fashioned people power slowing things down.

In a letter from Kellye Testy, president and CEO of the Law School Admission Council (LSAC), the folks who administer the LSAT revealed that there were insufficiently qualified proctors at 30 testing locations (out of over 500). As a result, there’s a massive disruption for those who signed up to take the test in one of those centers.

LSAC is offering those impacted to take a make-up exam, on paper, on December 8th. And those who opt-in for that special administration will have their scores released on the same date as the November administration. If that doesn’t work, they can sign up for a regularly scheduled future administration of the test at no cost or get a refund if they decide to back out of the LSAT entirely. To apologize for the inconvenience, LSAC is also offering affected students four free score reports to the law schools of their choice.

Read Testy’s full letter, as tweeted by PowerScore CEO Dave Killoran, below:

As Testy’s letter concludes, they can and must do better. At least this level of transparency is a step in that direction.

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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).

We’ve been talking about innovation in law for a long time. And even though we agree that we have a long way to go, still not much actually gets done.

Has innovation in law become like intimacy in high school? Everyone talks about it, but very few, if any, do it.

For all the focus on people, process, and technology in the collective discourse, let’s discuss what innovation in law is not.

One, social media activities. Posting about opportunities to improve, funny technology moments, and complaining that nothing has changed in law since the dark ages is fun. It may even engage your followers and lead to some productive discussions on- and off-line. But at some point, you to have a specific discovery, plan, and execution that applies to your people, process, and technology. Things have to change. Social media is not a meaningful substitute for the time, commitment, and investment of resources that it takes to modernize your legal department or legal practice.

Two, volume discounts. So, you’ve made a couple of changes. Maybe even now your vendors and law firms give you some volume discounts. You report to your CEO that you were able to save around 10 percent. That’s great! Really, it is — we all start somewhere, and cutting costs around the edges is a great starting point. But make no mistake, it is just that — a place to start! Even with all those new savings, you still have a long way to go. The people, process, and technology await! And if you are serious about saving money, I am certain that you can save even more, much more, if you innovate.

Three, awards. I get it, I love shiny reminders of achievement, too! And, it’s fun to celebrate an occasion with well-dressed friends and colleagues, especially around a good meal and good wine. And yes, the pictures look fantastic on LinkedIn. But again, let’s be clear: Awards and award ceremonies, even those that recognize innovation, are not themselves innovation. After you receive an award, you return to the same office where archaic processes have reigned supreme. And whether you prominently display the shiny plaque in your office or reception area, the cold reality is that to modernize your legal department or legal practice you will need to focus on (yep, you guessed it!) people, process, and technology. Things will need to change.

Change is hard. On the one hand, everyone wants a change. On the other hand, everyone is afraid of it. But true innovation cannot happen without meaningful change. That’s the point, after all — to end up with a product, process, or system that’s fundamentally different from what you started with. Innovation has to go beyond appearances, to the building blocks of any successful enterprise and department. And the building blocks of any successful enterprise? People, process, technology.

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

There are a lot of reasons why law students petition to keep a professor from teaching at the school and almost all of them are bad news. Title IX issues, racially antagonistic language, being Amy Wax — all valid reasons to want a teacher out of a law school, but also all signs of something having already gone wrong at the school.

NYU Law students and graduates are petitioning one former professor not to return to the school for a much different reason. SEC Commissioner Robert Jackson Jr. saw his appointed term expire in June, but can remain on the Commission through 2020 or until a successor is confirmed. With Democrats in the Senate dragging their heels on nominations and no guarantees that Trump would perform his duty and actually appoint the Senate Democratic nominee, liberals and progressives alike want the independent Jackson to remain on the Commission as long as possible to avoid a vacancy that could become open season on Wall Street rules.

As Bloomberg reports, the NYU Law community flocked to a petition to urge the school to allow Jackson to remain at his post and, indirectly, to urge Jackson to stay there.

“It’s extremely important that he stays to protect the people’s interest because the Republicans are protecting corporate interests,” said Leo Gertner, director of field services at the American Federation of Musicians Local 802 and a 2016 NYU Law graduate. “His teaching duties can wait.”

For the school’s part, Dean Trevor Morrison has told petitioners that the school is not putting any pressure on Jackson to get back to teaching:

“I can confirm that, although the NYU community is certainly excited for Commissioner Jackson to return to campus, we have placed no restrictions on his public service leave and continue to support the decisions he makes about his work in Washington,” Morrison wrote.

Whether or not Jackson agrees is still up in the air.

NYU Students Beg Teacher to Stay at SEC as Wall Street Adversary [Bloomberg]

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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.

One of the world’s largest drugmakers will acquire a firm developing a drug for cholesterol for nearly $10 billion.

Basel, Switzerland-based Novartis said Sunday it would acquire Parsippany, New Jersey-based The Medicines Company for $9.7 billion, or $85 per share. Shares of The Medicines Company opened 22.5 percent higher on the Nasdaq Monday morning following the news.

The Medicines Company’s lead product candidate is inclisiran, which it is developing under a partnership with Cambridge, Massachusetts-based Alnylam Pharmaceuticals. The drug is an RNA-interference agent designed to prevent production of PCSK9, which is the molecular target of two approved drugs made by Amgen and a partnership between Sanofi and Regeneron Pharmaceuticals. Amgen’s drug is Repatha (evolocumab), while Sanofi and Regeneron’s is Praluent (alirocumab). Inclisiran is administered twice per year, whereas Repatha and Praluent are administered once every two to four weeks.

“With tens of millions of patients at higher risk of cardiovascular events from high LDL-C, we believe that inclisiran could contribute significantly to improved patient outcomes and help healthcare systems address the leading global cause of death,” Novartis CEO Vas Narasimhan said in a statement. “The prospect of bringing inclisiran to patients also fits with our overall strategy to transform Novartis into a focused medicines company and adds an investigational therapy with the potential to be a significant driver of Novartis’ growth in the medium to long term.”

Two weeks ago, The Medicines Company presented data at the American Heart Association’s annual meeting from the Phase III ORION-9 and ORION-10 studies of inclisiran, respectively testing the drug in patients with heterozygous familial hypercholesterolemia (HeFH) and atherosclerotic cardiovascular disease (ASCVD). In ORION-9, inclisiran achieved 50 percent lowering of LDL cholesterol with time-adjusted reductions of 45 percent over 18 months. In ORION-10, it showed a 58 percent lowering, with time-adjusted reductions of 56 percent sustained over 18 months of treatment. Both studies compared the drug against placebo.

The company said that it expects to file for Food and Drug Administration approval during the fourth quarter of this year, followed by European filings in Europe in the first quarter of 2020.

In a note to investors Monday, B. Riley FBR analyst Mayank Mamtani wrote that inclisiran’s reduced cost, medication burden and logistics are particularly attractive in the context of the primary care setting, which accounts for around 70 percent of patients with high cholesterol and 95 percent of prescriptions for lipid-lowering drugs. Mamtani pointed to several factors driving that attractiveness. In particular its overall pricing comes in below that of antibodies and is competitive with oral drugs, It is available as a pre-filled syringe and doesn’t require refrigeration, which would enable long-term storage in the clinic or even at home, enabling healthcare providers to offer in-home administration enabled by technology platforms like Uber and Google. And the buy-and-bill mechanism comes into play, with providers motivated to participate in patient care and patients not bogged down with out-of-pocket co-pays.

Photo: Kritchanut, Getty Images

Woohoo. The days before Thanksgiving — and (hopefully) some well-deserved time off — threatened to drag out like a game a Quidditch with a missing snitch, but thankfully a Biglaw firm decided to drop a bonus memo and snap us out of the doldrums.

And which firm has decided to delight its associates (well, at least the ones in New York, D.C. and Sao Paulo)? It’s Allen & Overy, who issued a match of the Milbank scale today. That grid is as follows:

Class of 2019 – $15,000 (pro-rated)
Class of 2018 – $15,000
Class of 2017 – $25,000
Class of 2016 – $50,000
Class of 2015 – $65,000
Class of 2014 – $80,000
Class of 2013 – $90,000
Class of 2012 – $100,000
Class of 2011 – $100,000

Bonuses will paid on January 15, 2020. (Full memo on the next page.)

Remember, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for all salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for your help!

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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).

When a prospect faces a choice between different law firms, the decision can come to rest on one critical factor: Trust. But that trust must extend to every level of the law firm, from the top attorney to the receptionist. And trust comes from professional credibility.

With 77% of consumers saying that they want to know about a lawyer’s experience and credentials before they make their choice, it’s clear that credibility plays a crucial role. 

Establishing credibility isn’t something you can achieve overnight, but there are several steps you can take to start building a strong reputation for your firm.

Provide a great customer experience

Delivering a great experience at every touchpoint is one of the most effective ways to establish credibility for your business. Your reputation is built on the experience of your clients, so it’s crucial that their impression of you is positive. 

Talking to people in a caring and professional manner is a vital part of excellent customer service, and this is especially true in the legal profession. It’s important to remember that people are often calling in difficult circumstances, so combining efficiency and empathy is key. People want to feel their concerns are being taken seriously and know you will be with them every step of the way. 

Just as important, however, is maintaining that professional experience across every stage. If the first phone call goes well but you don’t follow up, clients will start to lose trust. Eighty-two percent of people say that a timely response when they first contact a lawyer is important to them, so don’t forget about consistency. 

A case management system like Clio or PracticePanther can be a great way to keep everything organized so that nothing slips between the cracks. Using technology to streamline your processes can help you stay on top of things and enable your firm to be more proactive about different client touchpoints. 

Above all else, people simply want to feel heard. From a new prospect’s very first call to ongoing correspondence with clients, people need to know that when they choose your firm, they’ll be taken care of. Prove it to them in the very first impression and always remember that the first impression could be the last impression. 

Client reviews

More great reviews = more credibility. Reviews allow people to see at a glance whether or not they can trust you. With 92% of consumers saying they hesitate to make a purchase when there are no customer reviews, it’s clear that reviews are a hugely influential factor when it comes to business credibility. 

Well-known third-party reviews provide a stronger form of social proof than anything you post on your own website, so try to ensure there are a few different ways for people to leave reviews of your business, such as Google, Trustpilot, and Facebook. 

Of course, we all want reviews that describe us as geniuses, miracle workers, and superstars, but the reality is not everyone will deliver such high praise. 

But negative reviews can still be a great opportunity to build credibility and trust. For one thing, a total absence of negative reviews can appear suspicious. But negative reviews are also an opportunity for you to reply to and address concerns. By responding to negative reviews in a thoughtful way, you can demonstrate your compassion and ability to take feedback. It might even result in better ratings overall, so don’t be disheartened. 

Testimonials and success stories

A more in-depth version of reviews, testimonials and client success stories are great ways to demonstrate your value to potential clients. By showcasing detailed examples of your work, you can take the reader on a journey and allow them to get a clearer view of how you could help them.

It’s best to focus on clients with whom you have the strongest relationships for these types of endorsements, as they’re likely to make the best case studies. If you know that your firm added value to someone and had a positive impact, don’t be afraid to ask them to feature. 

The more endorsements and testimonials you are able to show, the more people will be able to visualize themselves having the same great experience. 

Deliver on your promises

When you’re trying to build credibility for your practice, it’s important to ensure that you can deliver on your promises. People value an honest approach, so your messaging should be consistent and realistic. 

Don’t make any overly bold claims on your website — it’s great to showcase your achievements, but don’t cross the line into exaggeration and embellishment.

Demonstrating that your work is consistent, reliable, and caring is the best way to build respect and credibility for your firm. People will see through you if you claim that you can move mountains, so avoid anything that sounds over-the-top or boastful, and let your real accomplishments shine through. 

Be available

To enhance your credibility, you need to make yourself available. Forty-two percent of consumers say that if they like the first lawyer they speak with, they won’t need to speak with any others. So if you want to make a great impression, you’ll have to pick up the phone in the first place. 

Eighty percent of people hang up on a business when they reach a voicemail. It’s easy to miss the opportunity to show prospective clients why you’re the best person to represent them. If nobody answers your phone or your availability is inconsistent, clients are unlikely to trust you in their time of need. 

A live legal answering service can enhance your business credibility, allowing every caller to be met with a caring, professional receptionist who will help you build and maintain strong client relationships. It’s also crucial that a live person answers your calls 24 hours a day because many times people call during the off hours. Missing these calls can mean missing the opportunity for the case in turn hurting your credibility. A legal reception service like LEXReception can help with your calls. Visit LEXReception to find out how trained legal receptionists can help your firm to provide exceptional customer service, every time. 

While establishing credibility is a long-term strategy, by following these steps, you can start building a reputation to be proud of. 

For the last four decades or so, the American metanarrative has more or less blindly accepted that deregulation is the answer to everything. America deregulated the airlines… and gutted routes to small and mid-sized airports while creating airline gate monopolies while claiming to have lowered ticket prices (which it mostly did not, the invention of high bypass ratio turbofans and automation did). America deregulated cable companies and stacked the FCC with industry stooges… and now those companies function as geographic monopolies that are getting taken to court for actively subverting local governments. The cheerleaders for deregulation prefer to use struggling immigrant small-business owners as a fig leaf for oligarchic corporations, but for every irrational regulation on a nail salon, there’s a swath of dying employees to remind us why we had those regulations in the first place.

Like every other industry, the legal profession has gotten the deregulation bug lately and true to the deregulation story, it’s all about the “widows and orphans” on the wrong side of the access to justice gap. “If only we didn’t have all these regulations on the practice of law, they could get the legal help they need!” It’s a well-meaning argument and there’s no denying that a lower cost alternative is necessary for the growing gap — which now extends beyond the indigent — but opening up the floodgates is not a particularly attractive solution.

Andrew Arruda of ROSS Intelligence recently took on this subject:

The legal system has been regulated so tightly that it has led to a world where only a fraction of the citizens who require legal services can access them. Consequently, the current regulatory scheme has led to a black market of legal services and innovation stagnation in the evolution of legal services.

Unfortunately, as Arruda points out, the anecdotal tales of black market scams are hyperbolic and are often presented in ways that play on thinly veiled racism. When some unscrupulous actor tried to take advantage of poor immigrants by offering doomed legal advice for a fee, it often gets framed as a reason to lock out anyone willing to offer legal help to these communities rather than a sign that many more people are trying to offer genuine assistance and are hamstrung by the current regulatory framework.

But the answer isn’t to unleash professional anarchy on the most vulnerable. The legal industry needs to begin from the premise that regulation is good and necessary to protect the public and then recognize that the current regulatory regime is incredibly bad and replace it.

We need to reregulate as it is clear that our current framework, which requires an all-out prohibition of legal assistance by anyone other than a lawyer, only serves to strengthen the systemic racism that these groups already face on a daily basis.

In typical lawyer fashion, we have allowed perfect to become the enemy of good. A lack of tiering and specialization of labor in the legal industry then creates an innovation vacuum as lawyers have been forced to become jacks of all trades and are unable to collaborate, delegate, or systematize their practices. Through an absolute prohibition on nonlawyer ownership of law firms, we have created a system where an individual who has worked hard to earn their Juris Doctor must also simultaneously perform the functions of someone who has earned a degree in business, in accounting, in computer science, in social work, and in psychology. How can we expect thoughtful innovation, with or without technology, within law when we freeze out those who specialize in what lawyers most need assistance with? I imagine a world where an attorney can team up with an MBA recipient, a social worker, and a computer scientist to open a highly profitable law firm where each of them benefits equally as owners. Again, our professional regulation as it currently stands does not allow this.

Arruda and the IAALS Unlocking Legal Regulation project is not aiming to just remove prohibitions, but to transform them. The industry should have tiered practitioners the way medicine does. State bars should be devising regulatory schemes to allow that in a manner that protects against abuse. These licensing programs should be able to move out of the law schools to 4-year and even community colleges that meet appropriate standards to allow practitioners to be trained without carrying a debt-load that prevents them from making a living serving the community.

The deregulation mindset takes as a given that if any regulatory policy is bad, then all regulations must be severely curtailed. It’s thoroughly busted logic and usually peddled cynically by folks trying to take advantage of the resulting anarchy. The cure for bad regulation is good regulation — or at the very least better regulation — not no regulation. That’s a lot harder work than just tearing everything down, but thankfully there are some people out there willing to take it on. Now the rest of the profession has to join in.

Reregulation, Not Deregulation [IAALS]

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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.

Sometimes making the right call doesn’t mean getting the right result.  This is how the grant of certiorari by the Supreme Court of the United States (SCOTUS) in Google v. Oracle feels to me right now. As I have written before here, the dispute between Google and Oracle regarding the copyrightability of application programming interfaces (APIs) is a big deal for business.  Let’s face it — virtually every business today uses some form of software in providing its goods and services to its customers. From custom-developed mobile applications to software-as-a-service solutions, computer software no longer serves a supporting role, but is in many cases the leading business need.  So it is no surprise that the ongoing battle between Google and Oracle on this issue has reached the SCOTUS; however, it is the result that they will inevitably reach that has me worried.

The background of this battle demonstrates the inevitability of SCOTUS review.  Although previously written about here, a quick summary is in order for context.  As part of Google’s ongoing mobile platform development after Google purchased Android, Inc. in 2005, Google sought compatibility of Java programs within its Android mobile operating system environment.  Notwithstanding a majority of Java being available via open source, not all of it was publicly available, so Google tried to license the remaining Java components from Oracle’s predecessor-in-interest, Sun Microsystems.  Unfortunately, the parties could not come to terms so Google did the next best thing — write its own version of Java.  In so doing, Google essentially copied the same names, organization, and functions as the Java APIs, ostensibly to save development time.  Oracle Corporation purchased Sun Microsystems (and its Java assets) a few years later, and Oracle proved even less inclined to come to license terms with Google for the remaining Java components.  This action for copyright infringement followed not long thereafter.

The dispute essentially pivots around whether APIs are protectable copyrightable expression, and if so, whether Google’s use of the Java APIs constitutes “fair use” under copyright law. The last Federal Circuit opinion summarizes the procedural history best:

Oracle America, Inc. (“Oracle”) filed suit against Google Inc…. in the United States District Court for the Northern District of California, alleging that Google’s unauthorized use of 37 packages of Oracle’s Java application programming interface (“API packages”) in its Android operating system infringed Oracle’s patents and copyrights. [In] the first trial, the jury found that Google infringed Oracle’s copyrights in the Java Standard Edition platform, but deadlocked on the question of whether Google’s copying was a fair use. After the verdict, however, the district court found that the API packages were not copyrightable as a matter of law and entered judgment for Google. Oracle appealed that determination to [the Federal Circuit] court, and [the Federal Circuit] reversed, finding that declaring code and the structure, sequence, and organization (“SSO”) of the Java API packages are entitled to copyright protection. [The Federal Circuit] remanded with instructions to reinstate the jury’s infringement verdict and for further proceedings on Google’s fair use defense and, if appropriate, on damages.

Google subsequently filed a petition for certiorari on the copyrightability determination…[but the] Supreme Court denied certiorari in 2015.

Upon remand, the lower court found in favor of Google on its fair use defense; however, the Federal Circuit overturned the lower court’s finding of fair use by Google (again) and Google sought review by SCOTUS (again) to hopefully settle the issue once and for all. Well, they got their wish.

What SCOTUS will (hopefully) address is the nature of what an API really is, and if copyrightable, whether Google’s use constitutes fair use.  The arguments on both sides are vocal, with Google’s arguments parsing the two key components of APIs (the “declaration” and the “implementing code”) as making all the difference.  I won’t get into detail regarding that position (as I did so previously here), but suffice it to say that eminent computer scientists (and Google) feel strongly that APIs should be rated differently than programs because they do not “run” per se — they only specify what a program does, not how it does it.

I realize that some pretty informed minds disagree with Google’s position (and if you do, you are in good company), but the issue from my perspective cannot be viewed in a programming vacuum.  Instead, it revolves around what APIs are intended to do.  The whole point of APIs is to facilitate interoperability.  What this means is that APIs, by their very nature, help interface one software program (or platform) to another.  The whole point of APIs is to allow this interoperability to occur.  Restricting API use without an express license goes against the intended purpose of APIs — if a company did not intend for another company’s programs to interface with it, why have the API set? At the very least, access to the APIs can be restricted without a license. It’s no wonder Google feels strongly that copyright should not extend to APIs under Section 102(b) of the Copyright Act (as well as the merger doctrine), and if it does, re-implementing APIs should be fair use — a reasoned analysis that the lower courts took pains to address that Google feels the Federal Circuit did not appreciate or understand.

I respect that a good number of you may disagree with my take on this issue (and in the interests of full disclosure, my experience in the industry may be influencing me accordingly).  That said, I can understand the other side of the argument in favor of copyrightability and the owner’s exclusive rights to determine how such elements should be licensed. In fact, the United States (in its amicus curaie brief) argued against the need for SCOTUS review. My concern is that this issue is a nuanced one that, quite frankly, SCOTUS may not fully elucidate.  I don’t know whether this case will represent “the copyright case of the decade” (as Google puts it), but it is definitely worth watching.  How SCOTUS will rule is anyone’s guess, but when it comes to waiting for this decision,  I know for sure is that I won’t be the only one doing so.

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