Author: TSA Press

Please explain to me why this country could land men on the moon and have them walk on the lunar surface 50 years ago, and women today still can’t break the glass ceiling in a  profession that still hinders us from gender parity.

Since most of the ATL readers were born at least a dozen or so years after the moonwalk (and I am not talking about Michael Jackson’s), it’s hard for millennials and those younger to understand how momentous that occasion was for us dinosaurs. We were in the middle of the Cold War and Russia had been beating the pants off of us in space, at least until President Kennedy said, essentially, “Enough, we’re going to beat the pants off Russia before the end of the decade.” And we did.

To see the nation and indeed the world hold their collective breaths was remarkable and those who witnessed the moon landing and moonwalk will never forget them. We had lived through a decade of turmoil: Vietnam, both the war and the anti-war protests; assassinations of President Kennedy, the Reverend Martin Luther King, and Senator Robert Kennedy; cities burning. I could go on. We all wanted something to hold on to, to show each other and the world that we could collaborate, come together as a team to do something that was unimaginable even a few years before. We had the will, the perseverance, the determination for Apollo 11 to succeed and it did. So did we.

Where is our will, our perseverance, our determination for gender parity in the profession? Don’t look at me. I’ve been jumping up and down about this for years, as have many of my dinosaurial colleagues (both women and men). Jumping up and down after a while gets tiring, and I’m tired, in fact, I’m pooped. So are many others.

Where is the leadership? I don’t care who it is and where it comes from.  It could be a one-eyed, one-horned, flying purple people eater.

I am tired of hearing how much progress we’re allegedly making in law firms. Please, spare me. Yes, we’re doing better in corporate, academia, and the judiciary, but I don’t think such achievements point the way to parity.

There have been a number of articles in newspapers and elsewhere — “think pieces” is what journalists call them — about why it’s so unlikely that we will, in my lifetime, and maybe even yours, ever see anything like Apollo 11 again. A recent article in the Los Angeles Times talked about why what happened 50 years ago could not be replicated now, and I think comments apply to our profession’s seeming reluctance to move forward.

What made Apollo 11 possible? It was a number of factors, including a tolerance for risk, a leadership culture, and a collaborative political environment, things that do not exist today. It was management, national commitment, and the personal motivation of the participants.

Speaking at Rice University in Houston in 1962, President Kennedy said that “we choose to go to the moon, not because it is easy, but because it is hard.” Yes, gender parity is not easy to achieve, yes, it is hard, but we need leadership, commitment, and personal motivation, to move the needle more than just a little bit. Do we have leadership, commitment, and personal motivation to make that happen? You tell me.

Yes, things have improved for women lawyers in the past 50 years. True, but only up to a point. More than 50 percent of current law students are women. It also doesn’t explain why, as women move up the ranks, their numbers dwindle, nor does it explain why women compose less than 25 percent of equity partners. Women fare better in leadership positions in both corporate and academic environments, not to mention the judiciary.

So, we put men on the moon, but we seem to be unable and/or unwilling to do what needs to be done for gender parity here on earth. For those of us who were sentient 50 years ago, who watched the lunar landing from wherever we were at that time, it seemed like the nation and the world were, for a few precious moments, one. That’s certainly not true today.

Gerry Griffin, an Apollo-era flight director, who later became head of the Johnson Space Center in Texas, said that the risk-taking culture of the time propelled the man on the moon project forward. That culture didn’t know what a comfort zone was. As he said in the Los Angeles Times article, “The leadership pushed decisions down in the organization, they didn’t elevate them. They trusted people below them. The idea was, let’s not worry about who gets credit; let’s not second-guess everybody.” That doesn’t sound familiar today.

Regardless of what some people say, gender parity is not a “pipeline” problem; there are plenty of women who can succeed in law firms, but who aren’t given opportunities to do so, and who then drop out the higher they rise. It’s not just leaving to take care of the family and/or the kids or to pursue other opportunities. It’s fights about origination credits; it’s reluctance to share the work. The biases are real. When women lead, men are more likely to react badly, using the old tropes of “bossy,” “aggressive,” or other similar unflattering and demeaning adjectives.

The moon is approximately 240,000 miles away. That distance may well be easier to span than closing the gender parity gap. As President Kennedy said, we need to do this “not because it is easy, but because it is hard.” We do lots of hard things, but gender parity needn’t be one of them.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

In the past few weeks, multiple lawsuits have been filed regarding the epic embryo mix-up scandal. That scandal, in case you hadn’t heard, involves three couples and a fertility clinic in Los Angeles called CHA Fertility Center (“CHA”). Last week, I wrote about the federal complaint filed by a New York couple — anonymously identified as “A.P.” and “Y.Z.” The complaint describes how A.P. became pregnant with twins as the result of two embryos transferred to her by CHA. A.P. and her spouse believed A.P. was carrying her and her spouse’s own genetic children. When an ultrasound revealed that the twins were both boys — contradicting the embryo testing results prior to transfer that both embryos were female — the couple was concerned. However, CHA reassured them that ultrasound results are often inaccurate, and that they were definitely having two girls. Okay, well that’s that.

Oh wait. When the babies were born, not only were both babies male, but they were of a different race than A.P. and her spouse. To make matters even more complex, not only were the twins not related to the woman who gave birth to them, they were not even genetically related to each other!

Cut back to California. Last week, in a public statement, we learned another side of the story. Anni and Ashot Manukyan held a press conference to answer questions about their roles as victims of CHA and the egregious mix-up. They, too, were filing a lawsuit against CHA. The Manukyans described how they hoped for a child, and entrusted CHA with their embryos. Unfortunately, a successful pregnancy did not result from the embryo transfers that they underwent at CHA. One of such transfers occurred on August 20, 2018 — the same day, and same location as the embryo transfer with the New York couple. Now, it’s unclear whether Anni Manukyan might have had someone else’s embryo transferred to her! But that seems likely.

Several month later, in April 2019, CHA staff asked the Manukyans to come into the clinic for some “routine quality control” testing, and to have a cheek swab DNA test completed. Why? Oh, no reason. Except we now know that the testing was anything but routine. Instead, the clinic was surreptitiously working to determine who were the genetic parents of the twins born to the New York couple. The Manukyans were a match! The couple was soon informed — in person, with a mental health professional present — that they (surprise!) had a genetic child recently born to another woman in New York. Congratulations, right? Well, talk about shocking news.

Now We Get To The Positive Part

So this story seems pretty traumatic all around so far. But I had a chance to speak with New York Attorney Eric Wrubel for a different, more positive, perspective. (Wrubel has previously been a guest on the podcast I co-host, I Want To Put A Baby In You, for his landmark family law cases in New York State.) During the Manukyans’ press conference, Anni referenced Wrubel and his work representing her and her husband in the process of obtaining legal parental recognition of their surprise son.

When I spoke to Wrubel, his focus was not on the clinic’s actions or inactions. Instead, he was proud to report that New York law has developed to such an extent as to fully understand the legal implications of assisted reproductive technology, what had occurred, and to properly recognize the legal parents of the child. While the Manukyans were not legally recognized as the parents of their son until he was almost six weeks old, that is frankly lightning speed when it comes to the law’s usual pace. Wrubel described how New York law has evolved to recognize that families don’t always come in the traditional configuration — but families are formed in many different ways, and technology aids many families. Wrubel further described the lengths he and his clients went to in order to finalize the unification process in a manner that prioritized the well-being of the children. This included implementing a transition plan designed by a mental health professional. It is good to hear Wrubel’s report that, among the mess, professionals were there to help the victims and focus on the well-being of the children.

Perspective

By contrast, a similar situation previously occurred with a very different outcome. In Italy, in December 2013 (not that long ago!) two women — with similar names — underwent embryo transfer procedures on the same day at the same clinic. “Woman 1” didn’t become pregnant, but “Woman 2” became pregnant with twins. During the pregnancy, it was discovered that Woman 1 and her spouse were the genetic parents of the twins carried by Woman 2. Woman 2 gave birth to the twins and fought to keep the babies. Under Italian law, surrogacy is illegal, and a woman who gives birth to a child is the legal parent. As a consequence, the Italian judge ruled against Woman 1 and her spouse, and declared the birthing party and her spouse as the legal parents of the children. While issues of genetics and parenthood are complicated, most of us can likely agree that that was not the just outcome — resulting in Woman 1 and her spouse as genetic donors against their wishes and their genetic child being raise by another couple.

So at least that didn’t happen here. It is good to see a little ray of hope, that some elements — correcting the legal parental presumptions — were handled professionally and expeditiously. Thanks to Wrubel and New York law, a terrible situation was not made even worse.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Holding placards and singing songs denouncing the country’s finance minister, about two dozen union leaders representing teachers, nurses and other government workers gathered in front of the finance ministry offices in central Harare. A few police officers monitored the protest from a distance.

Leaders of the civil servants union said government workers would be unable to continue showing up for work if their salaries are not adjusted to match inflation.

“We have become slaves of the government. We just came as the leadership today but we will paralyze government operations if our demands are not taken seriously,” said Cecilia Alexander, leader of the workers’ union.

The inflation rate increased dramatically from 97% in May, according to figures released by the government’s statistics agency Monday.

Civil servants earn an average of 500 Zimbabwe dollars (about U.S. $50), just enough to buy 80 liters (21 gallons) of gasoline. They have rejected a “cushioning allowance” offered by the government that would have given an added 97 Zimbabwe dollars a month to each of the more than 300,000 civil servants.

The government has said it is reviewing the salaries.

Zimbabwe’s economy has been worsening in recent months, with prices of basic items such as cooking oil rising above the means of many while bread, gasoline, electricity and water have become scarce. Inflation accelerated following last month’s decision to re-introduce a Zimbabwean currency as the country’s sole legal tender.

Zimbabwe had not used its own currency since 2009 when the Zimbabwe dollar was abandoned after hyperinflation reached 500 billion percent. Since then the country operated with the U.S. dollar and other foreign currencies until the return to the Zimbabwean currency.

The re-introduction of the Zimbabwe dollar was praised by President Emmerson Mnangagwa as a “return to normalcy.” But for many who lost savings and pensions a decade ago, the move triggered widespread fears of a return to the hyperinflation days.

Hunger is growing in Zimbabwe, with a report on rural food vulnerability released Monday showing that 59 percent of the rural population, representing just over 5.5 million people, is food insecure due to drought and the unaffordability of basic food items.

Some have resorted to selling livestock and land, spending savings, withdrawing children from school and begging, according to the report compiled jointly by the Zimbabwe government, U.N. agencies and aid organizations.

Post published in: Business

It’s often noted that the Food and Drug Administration usually reaches decisions in line with recommendations from its advisory committees, though it is not required to do so. But until now, little has been done to fully quantify how frequently that happens and why it sometimes does not.

A study published Sunday in the Milbank Quarterly journal found that around 80 percent of the time, Food and Drug Administration decisions regarding drugs and devices were in accordance with the recommendations from advisory committees, also known as AdComs; about 20 percent of the time they were not. The study looked at 376 AdCom meetings regarding 298 products or product classes that took place between 2008 and 2015.

AdComs are panels of outside experts that the FDA sometimes convenes when it requires additional expertise before reaching a decision, such as whether or not to approve a drug or device or update an existing product’s label.

AdCom recommendations and FDA decisions take into account a multitude of factors related to a product’s safety and efficacy profile. Yet, the only major predictor of the FDA not following an AdCom recommendation was when the AdCom vote did not reach consensus, said lead study author Dr. Joseph Ross, a professor of medicine at Yale University, in a phone interview.

“When we looked at what predicts that discordance, that was the only variable that came up,” Ross said. More surprising, given the prior literature on the matter, was the lack of statistical significance for characteristics like media attention and conflicts of interest among committee members.

It was slightly more common for the FDA to reach decisions more cautious or restrictive than AdCom recommendations than it was for the agency to be less cautious, the study found. In 23 percent of cases when an AdCom gave a favorable recommendation, the FDA reached a decision that was more restrictive, while the agency reached decisions less restrictive than AdCom recommendations in 19 percent of cases.

A recent example of the FDA being less restrictive occurred July 3 when it granted accelerated approval to Karyopharm Therapeutics’ Xpovio (selinexor) for heavily pretreated patients with the blood cancer multiple myeloma. In that case, the Oncologic Drugs Advisory Committee, or ODAC, voted 8-5 to delay approval based on Phase IIb data and instead wait until Phase III data were out due to concerns about safety and other issues.

The FDA approved the drug anyway, based on data from the Phase IIb study as well as confidential early data from the Phase III trial provided by the study’s independent data safety monitoring board. The decision proved controversial, drawing criticism from hematologists who saw the FDA’s decision as incorrect based on what they saw as insufficient data to demonstrate Xpovio’s safety and efficacy. An ODAC member also criticized the decision, saying it should have been delayed until the Phase III data were publicly available, while also criticizing the lack of stronger warnings about Xpovio’s side-effect profile.

Ross compared the controversy surrounding Xpovio to that of Sarepta Therapeutics’ Exondys 51 (eteplirsen), which the FDA approved in September 2016 for Duchenne muscular dystrophy despite an AdCom voting against recommending its approval.

“This is a challenging gray area because what value is there in the company obtaining approval if the clinicians don’t feel like there’s sufficient evidence to support prescribing a drug?” Ross said.

Xpovio was priced at $22,000 per month, which several doctors also criticized given what they saw as insufficient evidence to support such a price.

Even if clinicians are willing to try such a drug, it may not pass the payers’ smell test. “If the evidence isn’t strong enough for the advisory committee, you have to wonder if it’s strong enough for the payers,” he said.

Photo: FDA, Flickr (free of all copyright for use and redistribution without restriction)

This presidential election cycle is unique in a lot of ways. For example, it is unusual to have an angry racist ham sprinkled with yellow Easter grass running against something like 7,000 people you’ve never heard of.

But the uniqueness spills over into more substantive areas as well, and one of those is how the candidates are building their election war chests. We have definitely seen the influence of small online donors in previous elections. But this is really the first presidential election in which they have become such a driving political force.

All the presidential candidates had to file paperwork with the Federal Election Commission detailing their second quarter fundraising totals by (literally) the end of the day on July 15. I guess anyone who didn’t meet the midnight deadline turned into a pumpkin or something. But a number of the candidates were getting their work done early, and that included Trump, whose campaign announced well in advance of the deadline that their second quarter haul would be more than $100 million. As of the reporting deadline, the Trump campaign and the Republican National Committee raised a combined $108 million during April, May, and June. That outpaced the $85 million combined fundraising total of President Obama and the Democratic National Committee during the equivalent period of 2011.

Of course, it’s not all that surprising that the party of big money, well, brought in a lot of big money. The Republican donor class, many of whom turned up their noses at Trump the last time around, are now flocking to him in droves. For example, one percent of the combined Trump and RNC second quarter haul came from just three people:

• Stephen Rosenberg, founder and CEO of real estate company Greystone, contributed $360,600 to the Trump Victory Committee, a joint Trump and RNC fundraising apparatus.
• Billionaire Isaac Perlmutter, chairman of Marvel Entertainment, also gave $360,600 to the Trump Victory Committee.
• Perlmutter’s wife, Laura Perlmutter, offered her own matching $360,600 contribution. Isn’t it cute when couples share a pastime together, like handing out more money than most working people make in a decade to fund a xenophobic presidential campaign?

Even though the Trump campaign fundraising efforts are supported by a solid bulwark of the one percent, his appeal among the unwashed masses is nothing to scoff at either. According to Trump campaign officials (who probably didn’t totally make up their stats, but maybe take the exact numbers with a grain of salt), individual online donations to reelect Trump averaged $48 apiece during the second quarter, and a total of 725,000 small donors contributed. That is only two-tenths of one percent of the U.S. population. Still, nearly a whole Seattle-worth of online donors at this stage in the election cycle is a pretty solid base of donor support.

The Democrats were all over the map, which is not at all unexpected given that Americans, except maybe those with that tree-man disease, have fewer digits than Democratic presidential candidates at the moment. But the top tier candidates all did quite well. The top five, by second quarter fundraising total, were:

• Mayor Pete, with $24.8 million (for your reference, if this is the first time you’re hearing about him, his last name is pronounced “boot-edge-edge”);
• Former VP Joe Biden, despite a few notable gaffes, at $21.5 million;
• Senator Elizabeth Warren policy-hounded her way to $19.1 million (she has a plan for that);
• Senator Bernie Sanders came in with $18 million, not bad but no political revolution either; and, finally,
• Senator Kamala Harris leveraged her strong debate performance at the end of the quarter to pull in just shy of $12 million.

Out of those, the most impressive total to me is actually Elizabeth Warren’s, because out of the top three Democratic fundraisers, she is the only one who has largely eschewed big-donor events and PAC or lobbyist money.

I’m not going to go into the rest of the Democratic candidates individually, because I only have a limited number of words to hold your attention in these articles and who cares about the rest of the candidates anyway, but suffice it to say that the next 15 Democratic candidates combined raised about $33.6 million. That puts the total for all of the Democratic candidates at $129 million, and that does not even include however much the DNC raised in Q2 (which will be less than the RNC raised, but will still be several million dollars).

Trump’s second quarter campaign fundraising total is impressive, no doubt. But when you add up what all the Democratic candidates are generating, they are outraising him, and by quite a lot. The likelihood of an ultimate Democratic fundraising victory, of course, depends on the willingness of Democratic donors to coalesce around a smaller and smaller group of candidates as the field is slowly winnowed down. Only time will tell if “anyone but Trump” will be a strong enough rallying cry to again entice veteran Democratic donors after their candidates of choice drop out.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

The IRS is now beginning its crackdown on people holding Bitcoin and other cryptocurrencies. There have been reports that some taxpayers have received a letter from the Service specifically addressing their cryptocurrency holdings. The letter is known as Letter 6174.

The letter begins by stating that the IRS has information that the recipient has or had one or more accounts containing virtual currencies. It is unclear what exactly the IRS knows. But in 2016, the agency issued a summons to popular crypto exchange Coinbase seeking the identities of their account holders. Other exchanges may have disclosed information to the IRS.

The letter also states that virtual currencies mean cryptocurrencies and non-crypto virtual currencies. I am not sure why they needed to distinguish these two. It might be because some might be confused and think both are the same. Non-crypto virtual currencies are usually in-game currencies in online role-playing games where there is a two-way conversion mechanism between real money and the game’s own currency. Two popular examples of non-crypto virtual currencies are the Second Life Linden and the Entropia Universe PED. Over a decade ago, there were reports of a few people who supposedly made a fortune selling items in-game and then cashing out their earnings into real money. The most well known example was Anshe Chung.

The letter then states that the IRS treats virtual currencies similar to non-cash property. In other words, anything other than money. This means that trading a virtual currency for anything else is a taxable event, even trading one virtual currency for another. More details can be found in IRS Notice 2014-21.

So purchasing 1 Bitcoin at $100 is not a taxable event. But if you later trade it for $1,000 worth of Ripple, you will realize a gain of $900 and will have to pay income tax on that gain. But since the IRS only accepts U.S. dollars for payment, you will have to cash out the Ripple to pay it. Suppose you cash out your entire Ripple holding for $900 to pay the tax. That is also a taxable event and you will realize a $100 loss since you obtained the Ripple when it was worth $1,000.

The above is a simple example, but it can get very confusing if you have done multiple trades on different exchanges and have multiple crypto accounts or “wallets.” While there are apps that track your trades for tax purposes they are not foolproof.

Also, Notice 2014-21 does not address what happens when the cryptocurrency splits or “forks.” Some have suggested that they be treated similar to nontaxable stock splits when one stock splits into two.

The letter advises the recipient to file amended or delinquent tax returns reporting all virtual currency transactions. But unlike regular returns, they advise the recipient to write “Letter 6174” on top of the returns and mail them to a special address. The letter also warns that not filing accurate returns can subject them to future civil and criminal enforcement activity.

So what does this mean? Given the special treatment of these tax returns, it is likely that they will be given special scrutiny. It is also likely that those with large transactions have a higher chance of being audited.

The IRS may use the returns and subsequent audits to investigate and study crypto transactions. This can lead to finding others who are willfully noncompliant. The IRS’s criminal investigation division has set up a special division for crypto transactions.

But all might not be as dire as it seems. In May, IRS Commissioner Charles Rettig sent a letter to members of Congress telling them additional guidance on cryptocurrencies will be forthcoming. The guidance will address determining cost basis and the tax consequences of forks. Unfortunately, there is no word on when these new guidelines will be released.

Also, there are some in the tax professional community who question whether the rules in Notice 2014-21 should be challenged in light of the crypto boom in the last few years. For example, there are over 1,000 cryptocurrencies and most of them are worth less than used toilet paper. Should trading Scamcoin for Fakecoin be taxable events if both are worth nothing? The possibility of litigation might incentivize the IRS to provide additional guidance as soon as possible.

For those holding cryptocurrencies, you may one day receive a Letter 6174 from the IRS. If you receive one, contact a tax professional for guidance and submit amended or delinquent returns as soon as possible. Even if you don’t get this letter, you should still file correct tax returns the old-fashioned way. The IRS’s criminal division and the Department of Justice will eventually make an example out of someone who does not comply.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

Lawyers are integral to almost every large-scale event, including the Democratic primary. And it makes sense, since all those candidates need attorneys to advise them on all manner of election issues — they wouldn’t want to inadvertently collude with a foreign nation or anything. Thanks to campaign finance disclosure, we are getting a sense of which firms are doing the most business with Democratic candidates for president.

As reported by Law.com, the Biglaw firm of Perkins Coie is really raking in the fees. Elizabeth Warren has paid the firm $320,000 dollars. And she isn’t the only candidate turning to Perkins Coie. Kamala Harris also paid the firm this season — to the tune of $90,000 — and the head of Perkins Coie’s political law practice, Marc Elias, is the campaign’s general counsel. Jay Inslee spent approximately $110,000 with Perkins Coie. Kirsten Gillibrand and Amy Klobuchar spent more than $85,000 at the firm according to financial disclosure documents. Plus Julian Castro spent $23,000 with Perkins Coie and John Hickenlooper racked up a $4,000 legal bill with the firm.

That’s nearly $750,000 in billables for advising Dems this season. Not bad at all.

While Perkins Coie had an eye-catching haul, they aren’t the only firm out there advising Democrats. Pete Buttigieg paid more than $320,000 to Jenner & Block, and he has a Harvard classmate and partner at the firm, Previn Warren, as the campaign’s general counsel. Bernie Sanders spent $260,000 on legal services, the majority of it going to Garvey Schubert Barer.

Utrecht, Kleinfeld, Fiori, Partners also got in the game, receiving $15,000 from Michael Bennet as well as $40,000 from Inslee and $45,000 from Castro. Covington & Burling got almost $68,000 from Joe Biden’s campaign. John Delaney split his $30,000 legal spend between Arent Fox, Ballard Spahr, and Cozen O’Connor.

And, for the sake of completeness, we’ll go through they rest of the candidates’ legal spend. Sandler Reiff Lamb Rosenstein & Birkenstock got $64,114 from Beto O’Rourke. Andrew Yang spent $10,000 with Dentons. Tim Ryan spent $8,500 with Venable. Tulsi Gabbard’s $7,500 in legal spending was divided between Bergeson and Blank Rome. Trister, Ross, Schadler & Gold got ~$3,500 from Bill de Blasio.

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).