Author: TSA Press

Two-time NBA Finals MVP. Living proof that one transcendent player can change the fortunes of a franchise by willing it to its first championship. Perhaps the most coveted free agent in a summer where basketball free agency has hit levels of attention and discussion heretofore unseen. Kawhi Leonard’s list of professional accomplishments, as well as his personal legend as one of a handful of stars capable of delivering championships, continues to grow. In fact, you could say that his decision (and the level of interest preceding it) this past summer to forego a return to the champion Raptors in favor of a fresh start with the Clippers confirmed his status in the pantheon of current NBA stars. The one-namers if you will… Kawhi, Lebron, Steph, Kyrie, etc. (What they all share in common? Lucrative sneaker deals showcasing their personal line of kicks.)

But Kawhi’s exploits this summer have not been limited to deciding which team will enjoy his services for the next few years. Now that the hubbub around his free agency decision has started to die down a bit, more attention is being paid to an interesting copyright case between the player and his former sneaker sponsor, Nike. As a preliminary matter, it is good to remind ourselves just how important sneaker contracts are to players, as well as to the shoe companies that offer them. The relationship between star players and sneaker companies starts well before players become stars, with sponsorships of AAU and college teams. It continues when players reach the NBA, with shoe companies vying to tie-up high draft picks in the hopes of locking in the next major star. Needless to say, the numbers are staggering, both in terms of payments to star players and the influence those players have on the purchasing decisions of sneaker customers.

In fact, it was a sneaker contract, not basketball salary, that propelled Michael Jordan into the ranks of billionaire and NBA owner. Likewise, today’s stars know how important their imprimatur is on keeping a sneaker company’s fortunes on the upswing. A transcendent star can even make a brand relevant to youngsters single-handedly, as the case of Steph Curry and Under Armour proves. To that end, star players each have a distinctive logo, prominently emblazoned on merchandise sold in their names. Against this backdrop, it is easy to understand why the recent separation between Nike and Kawhi Leonard has turned acrimonious, with the split between the two parties leading to an IP dispute between them.

There would be no dispute, of course, absent Kawhi’s decision to try and do for New Balance what Curry has done for Under Armour. Namely, to utilize his personal star power to kick off the basketball fortunes of a brand outside the traditional power structure for basketball sneakers. If successful, the potential rewards for both Kawhi and his new sponsor are significant. At the same time, Kawhi wanted to bring over more than just his name from Nike. He also wanted to bring over his logo (seen in this article about the case), which he has already affixed to items since leaving Nike. Unsurprisingly, Nike has said that it owns the actual logo, consistent with its registering of the copyright in the logo without notifying Kawhi that it had done so.

As with any copyright dispute, it is important that we consider exactly each side is claiming it owns. On Nike’s end, it contends that it owns the copyright in the stylized “claw” logo that its designers created based on a rough draft supplied by Kawhi himself. Nike argues that Kawhi himself has previously conceded that Nike’s designers deserve the credit for the logo — consistent with Kawhi’s prior agreement that Nike would own the rights to anything created in the course of its sponsorship. As for the rough draft of the logo? Nike makes no claim to that “artwork” and concedes that Kawhi is free to use it without restriction.

In contrast, Kawhi argues that he owns both the rough draft and the now-copyrighted logo. He complains that Nike registered the copyright without telling him and argues that he should be free to use the logo as he sees fit. In effect, he is arguing some kind of ownership in the idea of a claw logo associated with his name, even though copyright doesn’t protect ideas. Nor does his argument that he shouldn’t be bound by his agreement that Nike owns IP around his sponsorship carry much water in my view. That said, there is still a good chance that the case will settle, because of the business realities Nike faces in terms of having to maintain a player-friendly orientation, even if Kawhi himself has already left Nike’s employ. As with most copyright cases, there is apparent room for compromise on a revised artwork that Kawhi could use going forward. Whether that settlement will happen early or later in the case is as of now unclear. But a settlement of some kind remains likely.

Ultimately, this case provides a good set of lessons for athletes and celebrities, especially when it comes to the IP ramifications of their dealings with more sophisticated sponsors. At minimum, they should develop some level of IP literacy so that they are not left regretting agreements that they may have made while caught up in the understandable excitement of having landed a sponsorship deal. Whether they develop that literacy on their own or in concert with having experienced IP counsel to guide them is their decision. Doing so as early as possible, however, will go a long way towards helping them avoid disputes like the one Kawhi finds himself him. At this point, whether or not he will be able to claw back his logo from Nike is unknown. But he could have given himself a hand by thinking through his potential IP issues before he signed his contract, rather than waiting until after he walked away. As for Nike? They are proving that they won’t let copyrights get clawed away without a fight.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Corporations just keep on moving more and more of their legal work in-house, and it doesn’t look like that trend will stop any time soon. According to a survey by the Corporate Legal Operations Consortium (CLOC), only 46 cents of every dollar went to external legal costs — like law firms — in 2018, compared with external costs taking 62 cents per dollar in 2017. That’s a big swing in only a year.

For the survey, CLOC spoke with 213 companies of various sizes in 32 industries and it showed internal legal operations, technology, and alternate legal service providers are increasingly filling in the gaps. As reported by Law360, legal departments are quickly finding new ways to improve their performance:

“This year’s data shows that the role and function of legal operations continues to grow,” said CLOC President Mary O’Carroll, who also holds the role of director of legal operations at Google. “Technology is changing quickly and more legal operations departments are embracing solutions to improve productivity and results.”

Of the survey respondents, 41 percent said they’ve increased the number of full-time attorneys on staff, and 39 percent of companies said they’re increasing their legal ops staff. And the percentage of companies spending more than $750,000 on technology is now at 37 percent.

Even though the overall external legal spend is decreasing, more and more companies are spending that money on alternative legal service providers rather than traditional law firms. In this year’s survey, 53 percent of respondents said they are using alternative legal service providers a significant jump from the 36 percent from last year’s survey.

Legal problems aren’t getting smaller, but companies are getting smarter (and more frugal) about how they deal with them.

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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).

Both Houses of Parliament will Continue Sitting This Week

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Marriages Bill Gazetted

The Marriages Bill, 2019 [H.B. 7, 2019] was gazetted on Friday 19th July.  The Bill can be downloaded from the Veritas website [link].   For our analysis of the Bill see Bill Watch 36/2019 of 22nd July [link].

Bills In Parliament Last Week

Money Laundering and Proceeds of Crime Amendment Bill [link] and

Coroner’s Office Bill [link]

The National Assembly gave both these Bills their First Readings on Thursday 18th July.  They were immediately referred to the Parliamentary Legal Committee [PLC] for its reports on their consistency or otherwise with the Constitution.

Zimbabwe Investment and Development Agency Bill [link]

Tuesday 16th July saw major progress on the Second Reading stage, with the presentation of a joint report on the Bill, and on the public hearings held on it, from two Portfolio Committees – (1) Industry and Commerce and (2) Foreign Affairs and International Trade.

The joint report was presented by Hon Joshua Sacco, chairperson of the Industry and Commerce committee.  The report [link] welcomes the objective of the Bill – to establish a One-Stop Investment Services Centre – but recommends changes to many aspects of it.  The changes include a time-frame for operationalisation of the One-Stop Centre and time-frames for completion of registration of investments and licensing [five days is suggested]; the extension of the One-Stop Centre’s sector coverage by adding desks representing the health sector, small and medium enterprises, parks and wild life management, tourism and local authorities; changing the composition of the ZIDA Board by having a majority of its members from the private sector, instead of  Government; appointment of the Agency’s CEO by the Board, rather than by the President [in order not to undermine the Board];  relaxation of the Bill’s present restrictions on employment of non-Zimbabweans, so as to allow investors to have senior personnel of their own choice;  the need for ZIDA to decentralise and devolve its operations to provinces and districts under central supervision.

Hon Paradza, chairperson of the other portfolio committee involved in the report, underlined the need to implement the report’s recommendations, saying that “the Bill, in its present form, is not a good Bill at all”.  He also emphasised the disquiet felt among committee members when the Office of the President and Cabinet prematurely – before ZIDA has a legal existence – advertised for applicants for appointment to a senior post in ZIDA.

Hon Nduna made one of his trademark “clarion calls”, this time for the ZIDA Board’s composition to reflect the preponderance of women in the population, asserting that “what men can do, women can do better and they are more trustworthy”.   See further under Coming up in Parliament This Week, below.

Education Amendment Bill [link]

This Bill was not dealt with at all last week.  Its status remains as it was described in Bill Watch 35/2019[link].   See further under Coming up in Parliament This Week, below.

Bills being prepared for gazetting

The following Bills are not presently available from Veritas, but will become available once they have been gazetted:

Zimbabwe Media Commission [sent to Government Printer 27th June]

Reserve Bank of Zimbabwe Amendment [sent to Government Printer 10th July]

International Treaties [sent to Government Printer 22nd July]

Other Business in Parliament Last Week

National Assembly

NSSA Forensic Audit Report was not tabled

Although it could have been expected, there was no announcement about when the Minister of Public Service, Labour and Social Welfare would table this report in Parliament [for background see Bill Watch 34/2019 [link]].  This was despite the Speaker holding her to her promise let Parliament know by 11th June when she would present it.

Welfare of MPs   On 18th July MPs debated a condolence motion following the death of Hon Kaston Gumbwanda, ZANU-PF MP for Zaka East on 25th June.  Besides lamenting the passing of their colleague, MPs of all parties used the occasion to complain about the Government’s general lack of proper regard for the welfare of MPs and for Parliament as a State institution.

Report of Public Accounts Committee on Ministry of Finance and Economic Development shortcomings [link]  Hon Biti, chairperson of the Public Accounts Committee [PAC] presented the committee’s hard-hitting report on a long list of Ministry of Finance and Economic  Development’s “non-compliance issues” identified by the PAC.  The report indicates where literally billions of US $s have not been accounted for.  It is shocking to read.  The PAC also criticised the attitude of senior officials who had appeared before it.  The list of issues reported cites failures by the Ministry and its officials to comply with the Constitution, the Public Finance Management Act and the Public Debt Management Act.

Senate

The Senate had no Bills to consider.

Senator Wunganayi presented a motion calling on Government to urgently allocate foreign currency to local authorities for water infrastructure development and water treatment chemicals.

Senator Tongogara presented her motion calling on Government and stakeholders, in particular traditional and religious leaders to vigorously enforce the law against child marriages and inculcate cultural values, saying that before Independence such marriages were a rare occurrence.

Senator S. Ncube moved that the Senate take note of the Thematic Committee on Gender and Development’s Report on Cancer Treatment and Control in Zimbabwe [link].

Coming up in the National Assembly This Week

Bills

Zimbabwe Investment and Development Agency Bill [link]

This Bill is item 1 on the Order Paper for Tuesday 23rd July, for continuation of the Second Reading debate with further contributions from MPs and, possibly, the Minister’s winding-up speech responding to the numerous suggestions made for the improvement of the Bill  The Minister has already had much to think about on that score [see above for the portfolio committees’ joint report [link] and MPs’ contributions so far.

Education Amendment Bill [link]

Continuation of the barely-started Committee Stage is item 2 on the Order Paper for 23rd July.  Most of the seven pages of amendments [link] proposed by the chairperson of the Portfolio Committee on Primary and Secondary Education, Hon Misihairabwi-Mushonga still have to be considered].  The Minister of Primary and Secondary Education has already told the House [when winding up the Second Reading debate on 18th June] that he will accept most of the amendments recommended by the Portfolio Committee – see Bill Watch 31/2019 of 21st June [link].

Maintenance of Peace and Order Bill [link]

If, as expected, the PLC report is received, the House can be expected to make a start on theSecond Reading stage of the Bill.

Motions

Like last week, items 3, 4 and 5 on the Order Paper are continuation of the adjourned debates on Government motions to take note of: (3) the Judicial Service Commission’s annual report for 2018; (4) the Zimbabwe Human Rights Commission’s report on the 2018 Harmonised Elections [link]; and (5) the Zimbabwe Electoral Commission’s report [link] on the same elections.  Item 6 is continuation of the long-running debate on the President’s speech at the opening of the current Parliamentary session ten months ago.

Items 7, 8 and 9 are private members’ motions that have been waiting in line for a long time: (7) Hon Khumalo’s call on the Government to improve the lot of war veterans, war collaborators and ex-detainees and specifying how; (8) Hon Mushoriwa’s proposal to transfer to local authorities the collection of vehicle licence fees and toll fees currently [accruing to ZINARA] as a means of improving road maintenance in urban areas; and (9) Hon Dr Nyashanu’s call to Government to stimulate economic development with incentives for the productive sector.

Question Time [Wednesday]

Over 80 written questions with notice await Ministerial responses, some from as long ago as November 2018.  Recently added questions include one asking whether the Minister of Home Affairs and Cultural Heritage is considering extending the opening period of Seventh Street/Borrowdale Road past State House in Harare, from the current 6 am to 6 pm to 6 am to 9 pm in view of the high volume of traffic using this roadway. Another is asking the The Minister of Justice to consider reducing the fees charged by the Master of the High Court on deceased estates.

Coming Up in the Senate This Week

Bills  Senators will again be waiting for Bills to be transmitted from the National Assembly.

Motions

Item 1 on the Order Paper for 23rd July is Senator Timveos’ call on Government to establish an adequately empowered entity to address challenges facing pensioners and insurance policy holders following the Justice Smith Commission of Inquiry on Pensions and Insurance Benefits.

Adverse PLC report on Command Agriculture Regulations

This item has dropped to item 7 at the very end of the Order Paper.  As the end of the present session is near, one wonders whether it is going to be allowed to lapse and be forgotten.

Question Time [Thursday]

The number of written questions on the Order Paper has risen to 27.  Senator Mavetera has several questions for the Minister of Lands, Agriculture, Water, Climate and Rural Resettlement seeking information about the funding and yields of Command Agriculture this season, wheat farmers and incentives to undertake wheat production, maize delivered to GMB by A2 farmers in the 2018-2019 season, and whether there are repercussions for A2 farmers who underutilise their allocated farms.

Government Gazettes 19th July 2019

Regular Gazette No. 56

Statutory Instruments [SIs]

Epworth Local Board by-laws

SIs 149-151, respectively, gazetted the Epworth Local Board’s Protection of Marginalised Land [149], Anti-litter [150] and Control of Worship in Open Spaces [151] by-laws.

Gazette Extraordinary No. 57

General Notices [GNs]  Only two GNs were gazetted, notifying the President’s appointment of Mr Gumisai Gapare as Zimbabwe’s Ambassador to Brazil [GN 1166/2019] and the Minister of Finance and Economic Development’s signature of a Currency Framework Agreement with Zimborders in connection with the Joint Venture Project for the Modernisation of the Beitbridge Border Post [GN 1167/2019].

Gazette Extraordinary No. 58

General Notice [GN]  GN 1168/2019 [link] notifies the appointment by the Minister of Finance and Economic Development of members of the Board of the Infrastructure Development Bank of Zimbabwe [IBDZ].  The eight persons named include only one woman, which is at odds with the national objective of Gender Balance [Constitution, section 17].

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

The Global Assembly is the highest decision-making gathering of the movement which takes places annually.

The meeting will take stock of the world’s human rights, discuss policy proposals and adopt new policies to guide its future human rights work.

Former Deputy Chief Justice of South Africa, Dikgang Moseneke, a former prisoner of conscience, will deliver the opening key note address on Friday 2 August at Birchwood Hotel, Kempton Park. The Global Assembly is scheduled to take place between 2 and 4 August 2019.

Amnesty International’s Secretary General, Kumi Naidoo, youth activists fighting to protect the climate, LGBTI rights, refugee rights and the right to protest in countries such as Turkey, Venezuela and Afghanistan, among others, will be available for interviews.

Activists who have been persecuted for their work in countries such as Turkey, Venezuela, Zambia and Zimbabwe will also attend the meeting.

Background

Amnesty International is a global movement of more than 7 million members and supporters who campaign for a world where human rights are enjoyed by all.

Post published in: Featured

I haven’t read about a good civil trial in a while. The truth is that trials are rather boring when you’re sitting there in the courtroom. Not for the lawyers, though; and not for a trial technician, either. Although civil trials are exceedingly rare and the vast majority of cases settle before trial, I thought it would be useful to write something about trial preparation and presentation.

Trial presentation is kind of the ignored stepchild of the EDRM. Legal operations professionals spend so much time and money collecting, processing, and reviewing documents that sometimes we forget that the whole point of those processes is to eventually present evidence in court and win on the facts and the law.

When a case does go to trial, a great deal of preparation is necessary.

A trial is like any other legal project. It is necessary to plan. A trial team should meet to discuss, among other things, the roles of each person involved, the objectives and the processes necessary to achieve those objectives, communication, and the role technology will play in the trial. Operations professionals will appreciate that there should be discussion about:

• The location and length of the trial;
• The number of witnesses and the timing and scheduling of testimony;
• The documents, exhibits, video, or other materials needed for use at trial; and
• The equipment, tools, and resources needed in the courtroom and war room.

We spend a great deal of time in discovery using sound processes to identify the handful of truly important documents for presentation in a courtroom. Defensible processes don’t stop there. An attorney must be able to establish the authenticity of a document, lay a proper evidentiary foundation, and use the document without objection. That does not happen flying by the seat of one’s pants.

To avoid obstacles and help trial counsel prepare for a trial, several things need to happen:

• Deposition transcripts and videos must be digitized and synchronized;
• Designations highlighting deposition testimony for use at trial need to be prepared and exchanged with other parties;
• Video clips of deposition designations should be created;
• Exhibits need to be exported from the document review platform in which they were initially reviewed and prepared for use at trial;
• The final list of exhibits needs to be prepared and distributed to the parties;
• Laptops (and backup laptops) must be prepared and configured for use at the trial site;
• Contact court staff to coordinate the use of equipment in the courtroom;
• Equipment (copy machines, scanners, monitors, projectors) must be ordered; and
• Arrangements need to be made for office or hotel space, food, and beverages.

Modern courthouses today have policies and procedures for the use of technology during a trial. These policies and the judge’s local rules should be consulted in advance of trial.

Witness outlines are typically used by trial attorneys who will examine witnesses, including questions they will ask and the exhibits they will use during witness testimony. Get access to these outlines and review them prior to the witness testimony. Exhibits should be organized in a way that makes them easily accessible during presentation in the courtroom.

Witness preparation frequently takes place prior to testimony. For this, be sure to set up a laptop, projector, and screen in a small room so that the attorneys may walk through the testimony with the witness and preview any exhibits or videos.

Lastly, attorneys usually like to rehearse opening and closing statements. Again, get an outline and prepare exhibits and video clips they may want to play during the course of their argument.

It used to be that legal teams arrived in court with an entourage of associates and paralegals, boxes, binders, and legal pads. Today, they arrive carrying laptops or tablet devices. The entourage is gone, the boxes and binders have been replaced by computers, and a trial technician presents evidence in the courtroom on a computer screen. The days of the ELMO projector have been replaced by digital cameras, elaborate and sometimes expensively crafted animations, and devices that can display, move, manipulate, or change images, pictures, and videos in seconds.

There are not many trials anymore because trials are expensive, they require a great deal of resources, and they are time consuming. Juries are also unpredictable.

When your operations team does have a case on trial, remember that having a plan and defined processes will lead to smoother, less frenetic outcome. Presenting evidence has also become much more efficient in the courtroom, thanks in large part to the increased demand for and use of technology.

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Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

Absolute chaos erupted in an Ohio courtroom when former juvenile judge Tracie Hunter was sentenced to six months in jail.

According to prosecutors, the former judge improperly received documents about a teenager who complained they were struck by Stephen Hunter, the judge’s brother, who worked as a youth corrections officer and then passed them on to her brother. Tracie Hunter was convicted of a fourth degree felony, unlawful interest in a public contract. The conviction came down in 2014, but a series of appeals and legal maneuvers kept her out of jail until now.

On Monday, the former judge appeared before Judge Patrick Dinkelacker who ordered she should serve the six-month sentence imposed in 2014. But, as reported by WCPO Cincinnati, there was a lot of pressure on Dinkelacker to not execute the sentence against Hunter. Judge Dinkelacker said he received 45 postcards at his home asking him not to send Hunter to jail, and local politicians also made their appeal:

In a letter, Mayor John Cranley asked Dinkelacker to not execute Hunter’s sentence.

Cranley said Hunter should not be placed in jail because she’s been punished enough professionally and because she has not committed a violent crime.

“I appreciate that she has been convicted but serving prison time seems to me to be disproportionate to her crime,” Cranley said.

Vice Mayor Chris Smitherman also wrote a letter to Dinkelacker asking him not to execute Hunter’s sentence.

Smitherman asked if Dinkelacker imposed the sentence that he would consider a court order that would allow for an early release at Sheriff Jim Neil’s discretion.

But Dinkelacker said he would not bow to pressure and imposed the jail sentence.

Hunter has said she believes her prosecution was politically motivated:

“I violated no laws, I did not secure a public contract, I did not secure employment for my brother who worked for the court for about seven years before I was elected judge. They need to drop these unrighteous and I believe unlawful charges against me.”

When Dinkelacker ordered Hunter taken into custody, her supporters in the courtroom began shouting in anger. At least one of the supporters wearing a “Justice for Judge Hunter” shirt was taken into custody after she rushing officers. Hunter stands, then appears to go limp as officers drag her out of the courtroom.

You can watch the scene as it develops below.

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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).

The Three Stooges practiced fictional law as the firm, “Dewey, Cheatem and Howe.” The premise of the sketch was that no one would seriously trust any law firm named “Dewey.”

Kidding aside, the Stooges were playing off the idea that lawyers are all on the verge of cheating their clients. So any attorney unlucky enough to be named “Cheatham” probably should expect the spotlight to shine just a little brighter on his actions and conduct himself accordingly. Unfortunately for one Anthony Cheatham, he chose another path.

Cheatham just entered a guilty plea after facing charges that he stole hundreds of thousands of dollars from elderly clients. Cheatham had his license suspended last year and was disbarred in October when investigators found more problems:

“While Cheatham was suspended from the practice of law, he received into his IOLTA account a wire transfer of $140,600 from the purchasers to fund the purchase; he had also received a $1,000 check as earnest money. He converted the funds to his own use and commingled the funds with his personal funds,” the high court said.

Come closing time on July 13, 2017, Cheatham “did not have sufficient funds to promptly disburse the proceeds of the sale to the seller. Instead he made incremental payments and misled both the seller and purchasers about the reasons therefor. He issued one check for $56,880 on July 25, 2017, but stopped payment on the check the next day because he knew there were insufficient funds in his IOLTA account.”

Cheatham has made full restitution and will be released soon — having spent the last year in custody already.

Ex-Lawyer Pleads Guilty to Stealing From Clients [Daily Report Online]

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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.

An interesting scoop from Politico reveals something that we’ve somehow known about for years: Wilbur Ross is an exhausted 81-year-old man who is very bad at being Commerce Secretary

[Wilbur] Ross doesn’t hold routine meetings with senior staffers, according to a person familiar with the department’s inner workings and a former outside adviser — a departure from past practice that one source attributed to the secretary’s lack of stamina.

“Because he tends to fall asleep in meetings, they try not to put him in a position where that could happen so they’re very careful and conscious about how they schedule certain meetings,” said the former outside adviser. “There’s a small window where he’s able to focus and pay attention and not fall asleep.”

Well, to be fair, government work is boring for a guy who just wants to go finish his days helping the Bank of Cyprus do its good works, maybe get married one last time, and never ay income taxes again. Plus, he’s basically wearing pillows on his feet…you can’t expect him not to doze off now and then.

‘It’s a disaster over there’: Commerce reaches new heights of dysfunction [Politico]

About a billion years ago, give or take an epoch, I interned at a now-defunct entertainment magazine. My internship largely consisted of stuffing envelopes for some fundraiser or another, updating mailing lists, and dodging the grabby paws of the creative content director. This experience yielded several valuable nuggets including my now long-held belief that the concept of an internship program is great in theory, tricky to pull off in practice, and often ends in a half-ass attempt at structure and a bored-ass intern. Which is why I never suggest we hire one for our Legal department. It’s not that I don’t want to give back and foster the next generation. It’s that I know my limits.

Lucky for me, my business partners do not. It’s closing in on August and I’ve already had a half-dozen “I’m the intern for [insert name of business partner now dead to me] and I’d like to discuss the [insert horribly ill-defined project of questionable value]” meetings. In other words, it’s time for the annual foisting of interns onto Legal and other service functions.

Despite my utter lack of time to nurture the newbs, I always remind myself that at some point I was so shiny and new that the fact that I was taking up valuable office oxygen asking asinine questions was an annoyance to some seasoned vet. So, I try and tamp down my unique blend of snark and charm. But it can be really challenging.  Especially given what comes out of the mouths of these babes.

Take Taylor for example. Taylor is a products intern, who has made it abundantly clear that she’d rather be a marketing intern. To further add to her general dissatisfaction, Taylor has been saddled with assembling a playbook for onboarding component suppliers, i.e., a document that will be used by no one since the process is so simple and there’s very little effort involved. Still, as part of this exercise, Taylor has been asked to summarize the supplier terms and conditions. These are one page long. Taylor sends me a summary that is six pages long. But I want to be a good egg and build up “no parking tickets” karma, so I schedule a meeting with Taylor, who promptly informs me that her summary would be a lot shorter if we took out indemnification and the warranty. And even though I can feel the little vein in my forehead tapping out a frantic “get out while you can, Tay, shit’s about to get real,” I explain why we’d need such provisions even if they’re long. When I’ve finished what I think is a basic, pared-back explanation, she counters, asking why we’d need both, because you know, we could just sue the hell out of them. After mentally agreeing with Taylor that she should have been a marketing intern, I go down the rabbit hole of explaining why we don’t actually want to sue the hell out of anyone, citing exorbitant costs, the general uncertainty of the outcome, and potential bad press. She shrugs and says that sounds like Legal’s problem, not hers. And I have to agree.

Then there’s Kitteridge (Kit for short, he insists, though I’m not sure that makes it any better). Like Taylor, Kit’s been assigned a rather pointless task, this one centering around creating an FAQ for our new T&E policy. But unlike Taylor, he knows his assignment is useless and he treats it with the enthusiasm of one preparing for an invasive medical procedure. That is to say, he tries to get around doing it in every way he can imagine, including at one point, asking me to just do it for him and he’ll “review my work and clean it up.” Seriously, this kid has a death wish. Still, I remember all the times I did stupid, stupid things and I try to give Kit the benefit of the doubt by turning it back on him and offering to review and clean up his work. Kit is not impressed and later I get a call from his supervisor demanding to know why I’m not willing to work with his interns. All I can say at this point, dear reader, is that Kit is a marked man.

I’m not going to spend much time talking about Craig except to mention that the guy grabbed me by the elbow and asked me if I could copy some documents for him.  Instead, poor Craig got an earful about respectful workplace behavior and making assumptions about people’s roles. See? I’m shaping the future generations. I sincerely doubt that Craig will ever make eye contact with a female employee again.

I’m about to write off this year’s entire intern class as no-good-future-sales-team-wannabes, but Monique throws a wrench in my plans. From the minute she shows up in my office on time with a notebook (an honest-to-goodness paper affair and not a tablet or smartphone), I know I’m sunk. Like the others, Monique has been given an unenviable task of locating and summarizing all of this year’s sales contracts. I kind of want to ask her who she pissed off to merit such a Sisyphean task, but I can’t because she’s come prepared with a list of thoughtful questions. And before long, I’m promising to help Monique summarize these dumpster fires (and yes, all of the sales contracts are dumpster fires). Hell, by the end of it, I’m offering to take her to lunch. And I’m not talking about eating lunch at my desk, precariously balancing a cafeteria salad over my keyboard and hoping for the best. No way, I’m talking about one of those Biglaw type lunches where you actually sit down for a full hour and the company picks up the tab.

I guess maybe interns aren’t so bad, and they serve as good reminders as to how shiny and new we all used to be.

Except Kit. Kit is a dead man.

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Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

After exhausting all appeals at the state level, Michelle Carter — who was convicted of involuntary manslaughter for urging her depressed boyfriend Conrad Roy to commit suicide — has petitioned the United States Supreme Court to decide her case. Because there is a split among the states whether words that encourage another to commit suicide alone can be criminalized, I expect or would at least find it helpful if the Supreme Court took this case and settled the dispute. In my opinion, the Supreme Court should also take the case in order to overturn a flawed First Amendment precedent established by Massachusetts courts. In order to understand the flaw, however, we will need to get into the necessary legal background.

Although states can and do criminalize assisted suicide, Massachusetts had no such statute at the time Carter was convicted. Moreover, although assisted suicide was/is a common law crime in Massachusetts, as with many state statutes, the common law was explicitly tailored around doctor-prescribed suicide. Accordingly, Carter’s case is inapplicable to all Massachusetts’s law relating to assisted suicide because unlike doctor-prescribed suicide, Carter neither provided the means nor physically participated in the act. In fact, it was the older Roy alone who would research the method of suicide, obtain the means to do so, and in the end, physically carry out an act he had attempted multiple times before. In other words, it was Carter’s speech alone that formed the basis of her conviction, but not for the crime of assisted suicide as many might think. Rather, Carter’s conviction was based on a common law standard of behavior categorized as wanton and reckless “verbal conduct” constituting involuntary manslaughter.

Creating a category of “verbal conduct” within common law involuntary manslaughter allowed the Massachusetts courts to argue Carter’s speech belongs within the supposedly but not really at all well-defined and narrowly limited “speech integral to criminal conduct” federal exception to free speech protection. And it is the decision by the Massachusetts courts to place Carter’s speech within this unconstitutionally vague state court-created category of wanton and reckless “verbal conduct” that is the flaw I mean to identify in this piece.

That a conviction for involuntary manslaughter could be maintained based on speech alone is a troubling precedent for federal free speech protection without even having to look at how narrowly tailored the state common law is. As Robby Soave explained in a 2017 column for the New York Times after Carter was initially convicted by a trial judge:

[S]peech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger. Nor is it akin to threatening to kill the president, which is specifically prohibited by law—and in any case, only considered a felony if done “knowingly and willfully.” (Merely expressing hope that the president dies isn’t enough.)

Judge Moniz’s verdict is a stunning act of defiance against this general principle. By finding Ms. Carter guilty of involuntary manslaughter—rather than some lesser misdeed, such as bullying or harassment—the court has dealt a blow to the constitutionally enshrined idea that speech is not, itself, violence.

Ultimately, however, it appears as though the U.S. Supreme Court may decide the case on whether the standard set by Massachusetts for Carter’s conviction is too vague as to what constitutes criminal speech relating to suicide to adequately inform not only the public, but law enforcement. In the petition, Carter’s lawyers take a great deal of time to stress that the Massachusetts courts have “offered no clear, meaningful, and constitutional way to determine” the line between criminal and permissible encouragement of suicide. Moreover, the Massachusetts Supreme Judicial Court acknowledged that not all instances of encouraging suicide are the same. Accordingly, per Carter’s petition:

The only thing standing between defendants, like Carter, who face prosecution for involuntary manslaughter and individuals who are considered to have helped their long-suffering loved ones die with dignity is the mercy of a prosecutor. Putting such great power in the hands of prosecutors not only risks nonuniform execution of that power across time and geographic location but also threatens to undermin[e] the necessary confidence in the criminal justice system, because the public fears arbitrary prosecution (internal citations omitted).

Perhaps most importantly, recent Supreme Court jurisprudence has shown us that the majority of the Court will strike down vague criminal laws that “provide no reliable way to determine which offenses qualify as crimes” as a violation of constitutional due process. Carter’s petition may therefore be strong as it devotes quite a bit of time to this point.

In my view, Carter’s words should be held insufficient to sustain an involuntary manslaughter conviction under the First Amendment because no involuntary manslaughter standard that could convict based on words alone could ever be theoretically narrowly tailored enough so that it did not criminalize vast amounts of socially healthy speech. Additionally, direct regulation of physical conduct is always preferable to criminalizing indirect speech. This is because direct regulation can be consistently shown to be “more effective” at ameliorating harms. In fact, the Supreme Court has for nearly a century understood that removing morality-based repression of speech furthers the “avoidance of class conflict, the protection of private property, and the perpetuation of free markets.” Direct regulation also has undeniably “fewer collateral consequences for socially useful information.” Finally, direct regulation is simply “more transparent, leading to greater political and moral accountability” than a court-created common law standard susceptible to wildly different levels of accountability can provide. We will have to wait and see if the Supreme Court agrees to take this complex case.

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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.