Author: TSA Press

Ed. note: This post was originally published on December 1, 2017. We have republished this article to bring peace of mind to our law school audience during this stressful period.

“Without a wrinkle in today, cuz there’s no tomorrow/Just a picture perfect day that lasts a whole lifetime.” — Jay-Z

I haven’t read it. The House Judiciary Committee released a report early Monday morning, detailing (again) the case for impeachment of Donald Trump, and explaining the two charges that the full House will vote on this week. The report is listed at 182 pages, but when you pull it up in Adobe it’s 658 pages and… I haven’t read it. I don’t think I’m going to. I have been defeated by the Republican Party. I do not know what it would take to make elected Republicans perform even the most basic and cursory execution of their Constitutional duties, I doubt I will find anything buried in a 658 report that will change their calculus.

If there are still persuadable voters, I doubt they will read this latest report. Indeed, to still be “persuadable” at this point requires such a devoted avoidance of hearing and processing information that expecting such people to even read a snippet of the report is like expecting dog to use a toilet. People who have been paying attention have already made up their minds, people who haven’t been paying attention are not going to start now, and are certainly not going to start with this.

A Senate trial would be an opportunity for low-information voters to get more knowledge about the various crimes and abuses committed by President Trump. But, that is precisely why Mitch McConnell and Republican Senate lapdogs will have no such trial. To know more about Trump is to learn additional details about why he is unfit for office. The Republicans do not want people to think too critically about what is going on here, and so they won’t provide an opportunity to think about, or deliberate, these charges.

They won’t even put on a defense of their guy and their eventual vote to acquit. In a normal political universe, a President would want an opportunity to put on a defense. Senators poised to acquit him would want to put on some sort of a showing to justify their eventual votes. But it appears that Republicans are not interested in any of this. They’re confident that their base wants Trump to get away with his crimes, and they seem supremely confident that they will suffer no electoral retribution for being in Trump’s pocket.

What I’ve gleaned from the House Judiciary report, through topic sentence skimming and the reports of others who have read the thing, is that it contains additional arguments making the case that Trump committed actual crimes: namely bribery and wire fraud. I feel like that has been obvious for some time. If waving around a giant report makes people feel more confident when saying that, I guess that’s a good thing.

As for me, I feel like Gandalf at the Bridge of Khazad-dûm. Swords are no more use here. Neither are facts. Trump is a Balrog, a demon of the ancient, authoritarian world. Republicans are goblins, cowering and scattering in fear of his might. Do the Democrats have a wizard? No? Then I think we’re all going to die.

---

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

With primary filing deadlines flying past, we at Dealbreaker are slowly coming to a painful realization: While Mike Bloomberg is not going to be the next president of the United States, Jamie Dimon is not going to be, either, on account of his not running. (This also means that Marianne Lake is probably not going to be the first female CEO of a top bank, but that’s for another time.)

Since he’s apparently staying put at JPMorgan, JD has to find some way to occupy his time, now that he’s already revolutionized the U.S. healthcare industry and gotten to work on some new digs more befitting of his grandeur. And that was is by horning in on his competitors’ wealth management businesses.

This is the fourth article in the monthly “An Interview With” series! In this series, I  connect with people from all parts of the legal profession and at all stages of their legal careers to learn who really makes up the legal community and what they are actually doing with their legal degrees. 

This month, I am talking with Logan O’Reilly, who is a Tax Consultant at Ernst & Young. Logan is a 2017 graduate of the Elisabeth Haub School of Law at Pace University and 2019 LL.M. graduate of Georgetown Law. In addition, Logan has a vision condition called Stargardt’s macular dystrophy, colloquially known as juvenile macular degeneration. The disease is progressive and causes Logan to slowly lose his central vision acuity until he will be legally blind. In this interview, Logan shares valuable insight into his experience as a lawyer and law student with a vision impairment.   

KS: Please share what your journey navigating law school, the bar exam, and your LL.M. program was like in light of your vision impairment. Please speak specifically to any challenges that arose and how you overcame them. 

LO: My vision problems started in high school where I realized that I had trouble seeing who was walking toward me, and I had trouble seeing the whiteboard. Flash forward to law school: my eyesight got worse, and my struggles with accommodations began. At the time, my law school did not have a Director of Disabilities on-site, and the individuals who managed the accommodations did not do so full time. This made it difficult because working with someone who is ADA-knowledgeable is helpful as they would have ideas on how to handle accessibility issues and devices you never knew existed.

My vision problems also caused a financial burden. I needed electronic versions of all of my reading materials. In order to get the rights for these, I would have to buy all of my books brand-new. I ended up spending close to $1,000 on my books each semester, which really hurt my budget.

Furthermore, many professors did not understand my disability, which is understandable as my disability was invisible, and they didn’t see an apparent need for my accommodations. However, it was difficult not having enlarged handouts in class and not being able to see the projector, especially in legal research. I still don’t know how to Bluebook, and citations scare me! I was also contributory negligent (throwing bar exam terms out there) because I didn’t know how to advocate for myself. I tried and was met with resistance. My final exams in the first year were a disaster! I had to use scantrons and I did not know where the line was that I was supposed to fill out. Luckily for me, I used this experience as a learning lesson and I helped teach the Registrar’s office about my disability. I became very close with the people in the Registrar’s office.

The bar exam was not so difficult to get accommodations for because I had about 80 pages of medical documentation. However, the process of getting bar exam accommodations required endless doctor’s signatures and forms to be filled out. If you’re taking the bar in July, start getting all of the materials and applications together in the fall. For those of you applying for accommodations for the [New York] bar exam, be prepared to have to take it in Albany! This was such a hassle because when you’re visually impaired, how does one get to Albany?

It was during my LL.M. at Georgetown Law where I truly accepted my disability. Georgetown has a team dedicated to students with disabilities. It was here where I learned how to advocate for myself. I was given an office with assistive technology, and I was told where I could go within the city to get services. Furthermore, I was finally comfortable using a red/white cane to put people on notice that I am an individual with a disability. 

I currently work at a firm that sees me beyond my disability and has worked with me to get my accommodations put in place. 

KS: As one of the most positive people I know, I’d love for you to talk about any ways you feel your vision impairment has been a strength to you. 

LO: I learned compassion which allowed me to look at everyone in a different light. Everyone works differently! My low vision has allowed me to learn material differently and given me the chance to prove people wrong. This experience has proven that having a disability doesn’t mean you are weak but makes you work 100 times harder to prove yourself.

KS: What inspired you to go to law school?

LO: I wanted a career in which I would always be learning and be challenged. As a gay man, there were so many obstacles I saw individuals have to break down for equality. When I was in college there were only a handful of states which allowed same-sex marriage. I wanted to help build a more equal country. 

KS:  What are some challenges you have faced in your first year as a tax consultant and how have you overcome them? 

LO:  As a tax consultant, I come up with plans that companies can use to minimize their tax liability. I write advisory opinions on how likely a company is to be taxed and how their worldwide income will be taxed to the state. One of the struggles I deal with is the compliance aspect of tax. There are times where I have to use an Excel spreadsheet to figure out how one subsidiary’s income will affect the whole parent and subsidiary’s combined return. Excel is hard for me to use as rows can go on for pages and with my magnification software, I can’t always see the headers. 

KS: What, if anything, did you do in law school that you found really helpful in preparing you for your first year of practice? In retrospect, is there anything you wish you had done differently to be better prepared? 

LO: I think the classes offered by your school’s academic support team are a must! They really teach you how to analyze and to think like a lawyer. I think another great thing to do is network and build a network of people who will support you and give you career advice. Also, don’t be afraid to ask for help. It took me to my 2L year to gather the courage to go to my academic support center, and, once I did, I made lifelong friends there. They helped me with everything through my finals to the bar exam, and with all of my interpersonal issues in between.

KS: I can say from knowing you through law school and the bar exam that there is no challenge that will knock you off the path or make you back down. However, I  think a lot of people in your situation might have given up or not gone to law school in the first place because of the difficulties and challenges. What advice do you have for law students who need to overcome challenges? 

LO: Talk to people about your challenges. Let them lift you up and encourage you. Don’t give up on your dreams. Use your challenge as a way to find a new, more innovative solution. 

You can connect with Logan here.

Know someone who would be great to profile in this series? Send an email to info@vincoprep.com with “An Interview With” in the subject line.

---

Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

 

The overall view across the firm is that the result has given certainty. It removes what has been holding businesses back. Overwhelmingly, partners would rather have remained in the EU. But it’s now got to a point where we can see a stable government and the pound going up, so we’re now optimistic and hopeful.

Litigation has retained business, but transactional work has been challenging. But those concerns, we hope, are now lifted. We’re hoping for a Brexit bounce. There has been a political paralysis, and that wasn’t good for confidence and overseas clients.

— Michael Chissick, managing partner at Fieldfisher, tells Legal Week what law firms expect following the stunning UK election. Other legal heavyweights agree, the increased political certainty following Boris Johnson’s win will lead to more deals that have been languishing as the will-they-or-won’t-they question is now resolved.

---

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).

Marry Mubaiwa was arrested on Saturday evening and will likely appear in court on Monday, ZACC spokesman John Makamure said. He declined to give further details.

Mubaiwa could not be reached for comment on Sunday.

Appointed by President Emmerson Mnangagwa this year, ZACC is under pressure to show that it can tackle high-level graft, which watchdog Transparency International estimates is costing the country $1 billion annually.

An internal ZACC memorandum of the charges seen by Reuters showed that between October 2018 and May this year Mubaiwa is accused of unlawfully transferring $919,000 to South Africa under the guise of importing goods, which it claims she never did.

The timing of Mubaiwa’s arrest will likely raise eyebrows after local private media reported two weeks ago that she was going through a divorce with her husband Chiwenga.

The ZACC memo accused Mubaiwa of fraudulently obtaining a marriage certificate without Chiwenga’s consent earlier this year when the vice president was ill. The two have been married under Zimbabwe’s customary law since 2011 and have two children.

Chiwenga returned home last month after spending four months in China receiving medical treatment for a blocked esophagus. He has not been seen with Chiwenga in public, including at the annual ruling party conference that ended on Saturday.

Critics of ZACC say the agency is conflicted because its head judge, Loice Matanda-Moyo, is the wife of Zimbabwe’s Foreign Minister Sibusiso Moyo, a top ally of President Emmerson Mnangagwa.

Post published in: Featured

One of the two companies that markets CAR-T cell therapies for blood cancer will have to pay more than $700 million to a competing company and a cancer hospital over allegations that its product violated one of their patents.

A jury in the U.S. District Court for the Central District of California in Los Angeles ordered Gilead Sciences subsidiary Kite Pharma to pay $752 million to Juno Therapeutics – now part of Bristol-Myers Squibb – and New York’s Memorial Sloan Kettering Cancer Center after finding that Kite’s Yescarta (axicabtagene ciloleucel) violated an MSKCC patent that Juno had licensed. The suit was filed in 2017.

The award includes $585 million in damages and 27.6% of running royalty on sales of Yescarta. Sales of Yescarta were $264 million in 2018. Gilead acquired Kite for $11.9 billion in 2017.

On Friday, shares of Gilead closed down 2.75% on the Nasdaq from their Thursday closing price.

The patent in question, U.S. Patent No. 7,446,190, concerns the processes used to encode T cells with chimeric antigen receptors, or CARs, costimulatory domains and other components that enable them to target CD19. CD19 is a protein widely expressed on the surface of cells in certain blood cancers, particularly acute lymphoblastic leukemia and non-Hodgkin’s lymphomas. Kite won approval for Yescarta in October 2017 as a treatment for diffuse large B-cell lymphoma, a form of NHL. The other marketed CAR-T therapy is Novartis’ Kymriah (tisagenlecleucel), for DLBCL and acute lymphoblastic leukemia. Juno’s lead product candidate is lisocabtagene maraleucel, for which it intends to file for FDA approval by the end of this year.

In an emailed statement, Gilead said, “We remain steadfast in our opinion that Sloan Kettering’s patent is infringed and is invalid. Given that Kite independently developed Yescarta and assumed all of the risk in its discovery and development, we do not believe Sloan Kettering and Juno are entitled to any level of damages.”

In an emailed statement, a BMS spokesperson said the company was pleased with the verdict. “Bristol-Myers Squibb is committed to defending its intellectual property and that of its research partners and protecting the incentives that drive innovative research, including our pipeline of CAR-T therapies,” the statement read.

Kite had sought to invalidate the claims in the ‘190 patent by filing an inter partes review in August 2015. However, the Patent Trial and Appeal Board upheld the patent in its final decision, in December 2016. Kite subsequently partnered with researchers at the National Cancer Institute, and Juno alleges in its complaint that it used MSKCC’s patented research to develop its own CAR-T construct, Yescarta, which at the time carried the development name KTE-C19.

In a note Friday afternoon, Baird analyst Brian Skorney wrote that investors expect Gilead to divest Kite, following an announcement by CEO Daniel O’Day that Gilead would have the company operate as a separate business.

“All told, we continue to expect that, regardless of the ultimate outcome of this litigation, the $12B acquisition of Kite by Gilead will ultimately be viewed regrettably (if it isn’t already),” Skorney wrote. “The market for CAR-T therapies simply does not seem to be large enough to support the high price Gilead paid for Kite and the [cost of goods sold] now (should this order hold) are likely to make any future margin close to non-existent.”

Photo: Getty Images

Back in my wilder days, one of my favorite books was “The Modern Drunkard” by Frank Kelly Rich. Boy that book had a lot of good advice. Also, a lot of terrible, terrible advice. Anyway, one of the better pieces of wisdom in there really stuck with me over the years: if you can’t afford to tip, you can’t afford to drink in a bar. Go to the liquor store.

Apparently neither Christopher Ashbach nor his lawyer, Jon Farnsworth, ever read “The Modern Drunkard,” or if they did, they certainly didn’t get as much out of it as I did. Ashbach recently had the shocking experience of dining at a restaurant, and then (gasp!) facing the horrifying prospect of having to pay a three percent surcharge on his bill that was disclosed in advance on the menu. And all of this just so that the people making and serving his food could stay alive! You couldn’t blame the guy for being outraged, or Farnsworth for thinking there was a decent lawsuit to squeeze out of the whole ordeal.

Blue Plate Restaurant Co. is the entity being sued, and I’ve been to a number of their fine establishments. Menu prices vary, of course, but at almost any of their locations, you can get out for under $20 if you just want a burger and a beer. In fact, you’d be hard-pressed to run up a tab of over $100 even if you came in for a relatively fancy dinner for two. So, if we’re giving Ashbach the benefit of the doubt, he saw maybe an extra three dollars on his tab. Then, instead of going to some other restaurant next time or cooking at home (or, you know, just living with the fact that going out to eat costs money and three dollars is not a lot of it), he decided to become the named plaintiff in a class action lawsuit.

The three percent charge in question is what is referred to as an “employee wellness surcharge” among the restaurants in my neck of the woods that have started tacking it on to the end of customers’ bills. As in a lot of other big metro areas around the country, in Minneapolis and St. Paul, the local minimum wage has been increasing, and businesses like restaurants have also been increasingly required to pay for healthcare coverage for their employees. Restaurants on the West Coast first pioneered the idea of adding an employee wellness surcharge to customers’ bills so as to both provide health insurance to employees and stay in business. In 2017, the idea caught on in the Twin Cities.

Now, someone finally worked up the courage to put together a class action about the employee wellness surcharge. Why would someone think that it is illegal to disclose that you are going to charge an extra three percent before you actually charge an extra three percent? Well, to paraphrase Dr. Ian Malcolm from Jurassic Park, lawyers find a way.

To be fair, the complaint alleges “fraud, misrepresentation, and deceptive practices.” To the extent a restaurant could be said to be being deceptive by just writing on the menu, where the dumb might not read it, that there would be a three percent surcharge, well, fair enough. Still not a great argument, but I get it. The one actually good point Farnsworth made thus far is when he told Twin Cities Business magazine that “there’s a fundamental lack of disclosure about who’s getting the benefits and where that money is going.” If the restaurants had just jacked up the price of everything on the menu by three percent, instead of wanting to get goodwill points by flagging to their customers that the price increase is so that the people handling their food have healthcare, there wouldn’t be any dispute about the legality of the whole thing. I guess if you want the credit by calling it an employee wellness surcharge, you better actually be applying the proceeds to employee wellness. Even so, I don’t think forcing a restaurant to spends tens, and maybe hundreds, of thousands of dollars defending against a lawsuit is a good way to ensure they have money set aside for people’s health insurance.

All things considered, this is a dumb and miserly lawsuit, especially for this time of year. Running a business costs money, for workers’ healthcare and lots of other stuff. Just pay the three dollars, man, or if you really can’t stomach that, stay home and cook. Maybe “The Modern Drunkard” isn’t for you, maybe give Dickens a try. I believe the Ghost of Christmas Future had a lesson about Tiny Tim’s fate if Scrooge didn’t pay for some goddamn family health coverage for his worker.

---

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.

How many people should attend the meeting?

At a law firm: The smallest number possible, consistent with getting the job done. Why invite extra people to a meeting?

I suppose I’ll add one caveat: Very occasionally, an associate, whose time will not be billed, will be invited to a meeting to get a sense of what’s happening behind the scenes. But generally, the fewer people who attend a meeting, the better. The meeting will be more efficient and will cost less.

At a corporation: Invite lots of people.

We should invite people who are irrelevant to making the decision, just to make sure that they’re in the loop — or not offended by having been left out of the loop.

We should invite a few junior people. If they have the time to attend, why not? And attending will give them exposure to some of the muckety-mucks and let the junior folks see how we make decisions. And the junior folks might be interested in some of the topics that we’ll discuss.

Everyone’s time is costless — because you’re generally not being billed out by the hour — and many people could be interested in the meeting, or offended by not having been invited, or whatever. So the group expands.

But then it gets funny.

What’s the proper length for the memo describing the decision reached at the meeting?

At a law firm: It’s okay to create a 10-page memo.

Recipients of the memo will want to know the thought process that went into the decision-making. Recipients will want to see that you considered various permutations and that you excluded those permutations for good reasons. We don’t mind if the memo’s a little long — readers can always skim — but be sure to cover all the relevant content for those who are interested.

At a corporation: Three bullet points.

Are you kidding? People are busy. Nobody’s going to read an email that goes into a third or fourth paragraph. That takes too long, and it’s too much to digest. Anyway, people are accustomed to reading bullet points, and people almost never receive memos. Distill the decision down into the things that matter, and convey those things in a few bullet points. Maybe one PowerPoint slide. Without too many words on it. People might read that much, but you can’t take too much of their time.

I’m really not passing judgment on this. There are good reasons for different organizations operating in different ways. I’m just observing. Maybe there’s something to be learned from the observation.

---

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Being Tesla’s top lawyer certainly seems hard from the outside. There are the tweets, and the subsequent lawsuits, and subsequent SEC negotiations, and subsequent lawsuits, and the tweets, and the subsequent lawsuits, and the subsequent difficulties in trial prep, and the tweets, and the combustible solar panels, and the tweets, and the flamethrowers, and the tweets. And, apparently, it is as hard as it looks, as faithful adept of the Cult of Elon Jonathan Chang becomes the third Tesla general counsel to resign in just one year.