Author: TSA Press

Don’t you just love it when two of your interests overlap? The Venn diagram of Ninth Circuit watchers and folks disappointed by the final season of the HBO hit Game of Thrones got a shout out in a recent decision.

The case was Banks v. Northern Trust Company, which is about the interpretation of the Securities Litigation Uniform Standards Act of 1998. But really the substance of the case is besides the point. Suffice it to say the defendants wanted the court to read a case without looking to a case in the same line that amended the interpretation provided in the original case.

The Ninth Circuit shut that down right quick:

Northern would like us to read Dabit [Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit] without considering its clarification in Troice [Chadbourne & Parke LLP v. Troice]. But we will not render Troice meaningless the way that Game of Thrones rendered the entire Night King storyline meaningless in its final season.

Though it seems not everyone was thrilled about slipping pop culture into opinions:

The opinion was written by Judge John Owens, because of course it was. This isn’t the first time he’s used pop culture to make a point in an opinion. Hell, he’s even gone to the Game of Thrones well before, but it’s always fun to see a cultural touchstone referenced in a case. And that it throws shade at such a highly anticipated, but ultimately disappointing final season of TV, so much the better.

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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).

Yes, California is still here, shaken, not stirred, as James Bond would say about his martinis. Whether we’re been sufficiently stirred to get ready for the Big One is unlikely. Meanwhile, Las Vegas may well someday be the future site of Pacific Ocean beachfront.

People do freak out about earthquakes and justifiably so; there is no early warning system, no chance to evacuate beforehand as in tornados and hurricanes. It’s literally a matter of rolling with the punches (pun intended). However, having grown up in tornado country, I’ll take my chances here. And as one seismologist noted dryly, “Why pack a go-to bag, where are you going to go?” Exactly.

How big a jolt you feel in any earthquake is directly related to how close you are to the epicenter, which in the case of the two quakes this past holiday weekend, was approximately 150 miles northeast of Los Angeles. So, we felt it, but not anything like at the epicenters in Ridgecrest and Trona in what we call the high desert.

To me, it was nothing like the 1994 Northridge quake, which was centered in Northridge, about 20 miles northwest of here. (Dozens of people died, massive (read billions) amounts of damage, and part of the Santa Monica freeway connecting downtown with Santa Monica came crashing down.) Hurricanes are given names, earthquakes are named by location and/or fault line.  Caltech (just down the road from me) seismologists are warning, once again, that the Big One is overdue, but as one reporter noted, we suffer from earthquake amnesia.

There are earthquakes of all different kinds, not just the geological variety. If you look at how the profession is changing, the earth is shifting underneath our feet (just like a real earthquake). Steven Chung’s ATL column last week discussed that the State Bar of California is considering substantive and substantial changes to the practice of law in this state, including allowing non-lawyers to practice law, non-lawyers to have an ownership interest in law firms, and technology-driven legal providers to provide legal advice.

What’s the definition of “earthquake” in its non-seismic sense? How about “a sense of upheaval?” That fits.

These proposals, as Steven points out, are not necessarily going to improve “access to justice.” They’re upheavals, but not necessarily in a good way. In fact, it may just be the opposite. Read the recent warning on the State Bar website about the plethora of notarios, unlicensed attorneys, who are engaging in the unauthorized practice of law, taking money from those who can least afford it while promising to avoid deportations.

Another upheaval: the American Bar Association is molting, changing how it serves a lawyer population less interested in membership by, among other things, simplifying its dues structure. Good idea, but long overdue. We, as a profession, do not seem to have any sense of urgency.

That prompts another question: are local bar associations still necessary? They are undergoing their own upheavals. Are they still desirable? Useful? Or are networking groups and bar associations centered around practice areas better for business development in these days of specialization? Way back when, local voluntary bar associations were not just seen as vehicles for business development, but for leadership opportunities, CLE, and pro bono. We all know “bar junkies,” or even might be one.

How about this for yet another upheaval for us? Dinosaurs will remember, with varying degrees of fondness, our mandate to “look it up” when we had a question or didn’t know the answer. So, off we trudged to the law library to “look it up.” Remember law libraries? Those cost-sucking, space-sucking repositories of legal knowledge?

There’s a new company called Hotshot which is setting out to change how junior lawyers learn. Instead of “look it up” in the traditional sense, it’s watch a video about the subject matter. Watching a video does make sense since the world, especially the younger members, are so screen oriented. Bill Henderson wrote about this company in his most recent blog.

Is this the best way for newbies to both learn and retain what they’re learning? It’s “just in time learning.” Dinosaurs may remember that Dell Computers, when it first produced laptops in the long-ago 1990s, touted itself as the company that would make what was needed “just in time,” so there was no need for inventory.  But inventory is different from knowledge.

So now, “just in time learning” is coming to the profession. But what happens when a court asks a question and the attorney who learned whatever she needed to learn “just in time,” can’t answer the court’s question without reference to the video? I understand that the purpose of Hotshot is to help to learn substantive law on a particular topic, but is that enough?

This earthquake in legal education, so to speak, is, as one law professor noted in Henderson’s blog, based on the failure of legal educators to do what they are paid to do: educate. The ground is shaking under their feet along with ours too. In the past, we felt that the earth underneath our professional feet was secure. Now we know better. Is the Big One for the profession yet to come?

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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.

A legal case involving a Department of Health and Human Services rule adopted in May that requires television ads to include drugs’ list prices is likely to find its way to the Supreme Court after a judge ruled against the Trump administration Monday, a legal expert said. That could potentially set up a clash over how courts defer to regulatory agencies.

Judge Amit Mehta of the District Court for the District of Columbia ruled Monday that HHS lacked the authority to enact the rule under the Social Security Act. “Neither the Act’s text, structure, nor context evince an intent by Congress to empower HHS to issue a rule that compels drug manufacturers to disclose list prices,” he wrote.

The administration issued the rule requiring drugmakers to list the wholesale acquisition cost, or WAC, of drugs in television ads. The move drew opposition from the industry, which expressed concern that it would lead to consumer confusion and sticker shock. That led to a lawsuit filed last month by Amgen, Eli Lilly & Co., Merck & Co. and the Association of National Advertisers.

“The battle is on,” University of California Hastings law professor Robin Feldman said in a phone interview. “No one doubted that the pharmaceutical industry would fight the administration’s proposal to put drug costs in ads, and pharma has won the first round.”

Mehta emphasized that he was not calling into question HHS’ motives in adopting the law or expressing any view on the wisdom of requiring drug companies to disclose prices. He even acknowledged the possibility that such a rule could be effective in halting rising prescription drug costs. “But no matter how vexing the problem of spiraling drug costs may be, HHS cannot do more than what Congress has authorized,” he wrote. “The responsibility rests with Congress to act in the first instance.”

While Mehta ruled that HHS lacked authority to issue the rule, he did not rule on the plaintiffs’ other objection, that it constituted compelled speech and thus violated the First Amendment. While expecting that the courts would have to address that issue, Feldman said the industry will have a difficult time arguing that the HHS rule is about core political speech.

“First Amendment protections are far weaker outside that traditional area,” she said. “With compelled speech, we usually worry about government trying to force people to make a political statement – revealing price information is a bit far away from that.”

Feldman said the case is likely to go to the United States Court of Appeals for the District of Columbia Circuit and ultimately go before the Supreme Court.

The case, she said, involves deference to agencies, which is Justice Stephen Breyer’s area of expertise. It also involves the landmark 1984 case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which gave rise to the administrative law doctrine known as “Chevron deference.” The doctrine calls for courts to defer to regulatory agencies’ interpretation of statutes. Justice Neil Gorsuch has written opinions against Chevron deference, such as when he sat on the U.S. Court of Appeals for the Tenth Circuit.

In other words, the ruling sets up a potential clash of views on agency deference, Feldman said. “I think this case will be irresistible to the Supreme Court.”

Photo: traveler1116, Getty Images

In many ways, the last 10 years of the U.S. economy has been a story of success. Starting in June of 2009, the GDP started growing, and it hasn’t yet stopped. As of the beginning of July, 2019, the United States has enjoyed 121 months of economic expansion, a new record. The previous record for the most consecutive months of economic expansion, 120, was set from March of 1991 to March of 2001, according to figures from the National Bureau of Economic Research.

This record-setting period of growth has expressed itself in many positive ways. The S&P 500 index recently hit a new high. As of May, the national unemployment rate was just 3.6 percent, the lowest it has been since 1969. We’re now collectively spending more than $36 billion a year on video games, the most ever. Progress, right?

However, despite the overall economic successes of the past few years, anyone with eyes, who even occasionally spends time outside the confines of a private golf club, can see that the purported economic recovery of the past 10 years has affected different segments of the population very unevenly.

It’s not just those at the absolute bottom of the economic ladder who aren’t getting a fair shake. Almost all of us continue to get a smaller and smaller piece of the pie, even as new growth records are shattered. According to a Reuters analysis of data from the Federal Reserve Washington Center for Equitable Growth, the top one percent own about 38.6 percent of the total U.S. wealth. The next nine percent own about 38.5 percent of the wealth. The other 90 percent of us get to divvy up just 22.9 percent of the total wealth our supposedly roaring economy is generating.

In fact, the share of the wealth enjoyed by the bottom 90 percent of Americans fell over the course of the entire economic recovery following the Great Recession. In 2007, the top one percent, the next nine percent, and the bottom 90 percent owned 33.6 percent, 37.8 percent, and 28.6 percent of the wealth, respectively. By 2013, the wealth gap had widened further, with 35.6 percent of the nation’s wealth in the hands of the top one percent, 39.5 percent held by the next nine percent, and just a quarter of the wealth left over for everyone else. The trend continues to this day, and nothing, at least not in the immediate future, looks likely to reverse it.

Even though the bottom 90 percent’s share of the wealth keeps going down, certainly some individual circumstances have improved marginally over time. Wages have grown moderately over the course of the economic expansion, ticking up by about two percent per year over most of the past ten years. More recently, wage gains have reached closer to three percent annually (wage gains hit 3.1 percent over the past year, for instance). When the pie is getting bigger, sometimes even a smaller piece of it is an increase from what you had before. Still, historically, economic boom times have routinely posted annual wage gains for workers at a much healthier four percent.

Wage gains have not been the only tepid part of the economic expansion. While the expansion is record-setting in terms of its length, it is far from remarkable in terms of its strength. Since the current expansion began in 2009, the American GDP has grown by about 25 percent. For comparison, by the end of the shorter expansion that started in 1991, the GDP had gained 42.6 percent. A number of other 20^th century economic expansions, while shorter than the current one, led to greater overall increases in GDP.

What we have is an unusually lengthy, but unusually weak, economic expansion in which the vast majority of the proceeds have gone to the top ten percent. The super-rich are doing even better than just the run-of-the-mill rich, with the wealthiest 400 Americans — the top 0.00025 percent — owning as much as the bottom 60 percent, some 150 million U.S. adults. So, when you hear the talking heads touting this great, historic economy, keep in mind who it’s been great for, and what actually makes it historic.

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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.

After staking their entire strategy on the claim that the census question had to be expedited and that America cannot afford even a moment’s delay, the Justice Department asked the court to authorize a wholesale substitution of its legal team days before briefs are due. As one might suspect, the judge was more than a little confused:

But [Judge] Furman said that before lawyers can get off a case, court rules require them to explain why they wish to withdraw and that the DOJ request was “patently deficient.” That’s especially true, he said, given that legal briefs are due in a few days on whether the judge should issue an order preventing any action by the government to put the question on the form.

Part of the reason this motion was so patently deficient is that there’s no honest reason to swap out attorneys. What’s most likely happening is the attorneys working this case have rightly come to the conclusion that the Supreme Court has spoken and the case is all but dead. That doesn’t work for Barr and Trump so they’re looking to replace the team quick with some hatchet men and women willing to just make stuff up in a desperate bid to keep the census ball in the air. But “we’d like to withdraw because we cannot make the unprincipled arguments coming next” isn’t the rationale the DOJ wants to put on paper no matter how honest it might be.

Judge Furman gave the DOJ a second bite at this apple if they can concoct some good reasons to replace the legal team. Though if you’ve been following this case, you know that “believable pretexts” are exactly this crew’s strong suit.

Federal judge blocks Justice Department from removing lawyers in census case [NBC News]

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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.

China’s investments in the country should be reviewed, as they are skewed in favor of the Chinese, Temba Mliswa, an independent member of Parliament for Zimbabwe’s Norton Constituency, told The Epoch Times.

“They [Chinese companies] don’t comply with our labor laws. They are causing environmental degradation, they are violating human rights, and are involved in corruption. If Chinese investment is so good for Zimbabwe, why is the Zimbabwean economy still struggling?” Mliswa said.

China’s ambassador to Zimbabwe, Guo Shaochun, in April praised China’s relationship with the southeast African nation, hinting that China did Zimbabwe a favor by vetoing a U.N. Security Council resolution that would have imposed sanctions on Zimbabwe. In 2008, China vetoed proposed U.N. sanctions on Zimbabwe’s government, which had just overseen the reelection of autocratic President Robert Mugabe; Beijing argued that the sanctions would complicate rather than ease conflict in the country.

Vetoing the sanctions doesn’t give the Beijing regime permission to exploit Zimbabwe’s people and its resources, Mliswa said.

“Our government has been signing deals with the Chinese, but at what cost? Some of these Chinese companies are not honest. They claim to be brick molding when, in actual fact, they are mining gold. Our leadership is letting us down,” he said.

Mliswa has vowed that “the days of Chinese companies in Zimbabwe are over,” adding, “God will command us to take back our resources.”

1/ Why was Sunny Yi Feng Tiles awarded National Project status? Which other local tile manufacturer has been bestowed with such? What criteria was used? Value addition? So what investment is the country realising if there are such tax exemptions? pic.twitter.com/KuIFVmNKm3

— Hon. Temba P. Mliswa (@TembaMliswa) July 3, 2019

Mliswa claims that he was detained recently at Sunny Yi Feng Tiles (Zimbabwe), a Chinese ceramics company in Norton, following a confrontation with company executives over allegedly poor working conditions. Mliswa also accused a Chinese worker at Sunny Yi Feng Tiles of assaulting a local traditional leader, Chief Chivero.

While the worker has been deported, the assistant manager of the ceramics company, Gong Wei Lin, denied the assault allegations and told a press conference in Norton that the chief had assaulted a security guard.

The deputy chief of mission of the Chinese Embassy in Zimbabwe, Zhao Baogang, told state-owned newspaper The Herald in May that Sunny Yi Feng Tiles’ investment in Norton is one of the projects under China’s “One Belt, One Road” initiative (OBOR), an ambitious multi-continent infrastructure plan.

Regardless of importance, Mliswa said that all Chinese companies across the country need to adhere to the law.

“This mustn’t end in Norton. It’s a national issue that affects many. If Norton can be used as a case study to assist all, then it’s a start. We’ll be visiting all the Chinese-owned companies in Norton to assess the working conditions,” he said.

He added, “While my priority is ensuring regularization in Norton, many are affected and I’ll debate this matter in [the Zimbabwe] Parliament for national benefit.”

China’s investments in Zimbabwe have been growing in the past decade, but former Zimbabwe Finance Minister Tendai Biti recently warned African countries about China’s “unorthodox methods of lending to African countries.” 

“They [Chinese] also tend to take some shortcuts; their due diligence is a mixture of politics and economics. So there’s no set objective standard when it comes to Chinese loan contraction. But Chinese debt is huge and Chinese debt is now populating the balance sheets of most of these African states,” Biti said, during a conference entitled “Southern Africa’s Debt Conundrum” in Johannesburg, on July 2. 

Post published in: Business

The year is half over, Summer is here, and we’re already a third of the way through July. As you contemplate the rest of the year and what you may be planning in terms of conferences, professional development training, and continuing legal education, it makes sense to consider some of the popular upcoming legal industry events that are worth attending.

ILTACON (August 18-22) Orlando, FL

The International Legal Technology Association (ILTA) puts on ILTACON every August and have been doing so for about 30 years. It is one of the largest legal technology conferences held each year and it is usually well attended by law firm information technology leaders and staff, litigation support professionals, corporate legal departments, government, and other tech-oriented people in the legal industry. ILTA boasts over 1,400 member entities and a strong corps of volunteers who develop content and events across the legal operations spectrum.

Every year, the leadership and about 40 volunteers come together to plan and develop content for the four-day educational conference. This year, the sessions feature everything you might need in legal technology, from issues facing the C-Suite to knowledge management and core IT infrastructure or security issues. There are sessions for corporate legal department professionals, litigation support, business analytics, marketing, and innovators. ILTA’s website does a good job of outlining the areas of interest, and you can register here.

PREX 2019 (September 17-19) Chicago, IL

Hosted by the great people at Zapproved, the PREX Conference is also an educational conference that brings together corporate legal operations professionals, lawyers, judges, and other experts from across the legal industry. Zapproved, of course, brought its flagship product, Legal Hold Pro, to the eDiscovery industry 10 years ago. Today they offer a suite of eDiscovery software tools designed to empower in-house legal teams to efficiently and sensibly manage ediscovery projects.

PREX is well attended by corporate legal personnel and the session speakers invariably feature a cornucopia of the industry’s best and brightest judges, lawyers and legal operations professionals. The conference starts with the ZDiscovery User Group, a workshop for users of Zapproved software. Session tracks include best practices in eDiscovery, eDiscovery 101, and a leadership track. PREX often features quality keynote addresses and this year is no different. PREX began as a conference on preservation excellence; today, it is that and a whole lot more. Check out the sessions on the website and register here.

Relativity Fest (October 20-23) Chicago, IL

Early on, it became apparent that Relativity Fest was not a typical legal industry conference. It started largely as a user conference for what back then were kCura customers. Now Relativity’s conference has the feel of a high-end tech show with a focus on product, but it’s also got lots of education and training. And it has grown significantly. Today “Fest” boasts thousands of attendees from every corner of the globe, including litigation support professionals from firms, the government, corporate legal, and service providers. Lawyers, judges, paralegals, legal operations, and IT administrators also attend Fest.

Relativity Fest has a few unique offerings, including training workshops and certification exams and lots of hands-on sessions developed to increase proficiency in their software at various levels of skill. They also have a developer summit, a legal industry education track, and a professional development track. All the session content can be viewed on the conference website, and registration is available here.

These brief summaries are not a review or comparison of these conferences. Each has its own features and strengths. Rather, as someone who has attended and presented at each, I am confident that legal operations folks — and indeed the broader legal community — will find value and useful information at all three.

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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.

Once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.

In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

— Judge Barrington Parker, writing for a unanimous three-judge panel of the Second Circuit, upholding a lower court ruling against President Donald Trump for his efforts to block his critics and detractors from following him on Twitter. Such behavior is not only discriminatory, but it also violates the First Amendment.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

Which Biglaw firm was ranked #1 in the Vault’s 2020 practice area rankings in the area of tax?

Hint: The firm was founded in New York in 1948 by three men whose names are still on top of the masthead. Two more attorneys got the distinction of name partner in 1960.

See the answer on the next page.