Author: TSA Press

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.

Attorney Sharan Rene Boudreau has filed a lawsuit against her former employer, telecommunications giant Nokia. The federal lawsuit, filed last week in the U.S. District Court for the Northern District of Texas, alleges Boudreau was the victim of gender and age discrimination and was fired by Nokia for complaining about the discrimination when she was passed over for a promotion.

The complaint alleges Boudreau’s issues began in 2016 when she applied to be the temporary head of customer operations legal and compliance for North America. Though she did not get that position, Nassib Abou-Khalil, the global head of customer operations, legal, and compliance, invited her to apply to be the permanent head of customer operations, legal, and compliance for North America when the position became available. Boudreau did not get that position either, and, according to the complaint, Abou-Khalil cited her lack of managerial experience in denying her the position, despite her having direct reports and prior managerial experience at other jobs. As reported by Corporate Counsel, complaint alleges this is not how other male employees were treated at Nokia:

She claims that is inconsistent with how male employees in the legal department were treated. The complaint cites three instances where men in the legal department went from having no direct reports to being promoted to manager positions. The head of customer operations legal and compliance for North America position remained open until January 2018 when Jody Bishop, who came from outside of the company, was hired for the role. Boudreau met Bishop through a video call before he started and said he looked 10 years younger than her. In the complaint Boudreau says Bishop became uncomfortable when she started asking about his experience.

Boudreau is being represented by Hal K. Gillespie of Gillespie Sanford, who described the case as “gender discrimination of the worst kind.”

In August of 2018, Boudreau filed a gender and age discrimination complaint against Nokia with the Equal Employment Opportunity Commission and the Civil Rights Division of the Texas Workforce Commission. Boudreau says she was fired in October of that year for complaining about the alleged discrimination.

Nokia has not yet commented on the lawsuit.

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 rule from the Department of Health and Human Services requiring drugmakers to include the list price of their products in television ads was struck down by a federal judge.

U.S. District Judge Amit Mehta in Washington, D.C. ruled in favor of pharma companies challenging the rule in court because of what he said was a lack of statutory authority from the HHS to govern drug marketing.

The rule, which was announced by HHS Secretary Alex Azar in May, would require that drug manufacturers disclose the wholesale acquisition cost (WAC) of a 30-day supply of any drug that is covered by Medicare and Medicaid and costs at least $35 a month. The idea was that forcing drugmakers to disclose prices publically would potentially shame companies into lowering prices.

The change was scheduled to go into effect on Tuesday, and is one part of the Trump Administration’s blueprint for lowering rising drug prices that was unveiled last year.

The legal challenge to the rule was brought by Merck, Eli Lilly and Co., Amgen and the Association of National Advertisers.

HHS argued that the Social Security Act gave the organization the authority to adopt as part of its mandate to ensure effective administration of Medicare and Medicaid programs, which was being threatened by rising prescription drug prices.

In his opinion, Mehta said while federal agencies have wide latitude to formulate rules in their areas of administration, that authority is not unbounded.

“The court finds that HHS lacks the statutory authority under the Social Security Act to adopt the WAC Disclosure Rule. 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. The Rule is therefore invalid,” Mehta wrote.

Metha made no claims on the potential effectiveness of the rule itself, which he said “very well could be an effective tool in halting the rising cost of prescription drugs.”

The ruling is likely to be appealed by HHS to the United States Court of Appeals for the District of Columbia Circuit.

The pharma industry and some drug pricing experts have expressed concern about the rule saying that the disclosed prices did not accurately reflect the cost of the drugs to patients, potentially leading to consumer confusion and decreased medication use.

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Want to strike fear in a patentee’s heart? Just mention the PTAB, the USPTO’s judicial arm responsible for adjudicating IPR petitions filed by patent challengers. True, the perception that the PTAB is an automatic patent-killing machine has moderated a bit over time. But that changed perception in the public consciousness is of little solace to patent owners forced to run the PTAB gauntlet in the hopes of keeping their assets alive. It is therefore unsurprising that patentees, especially those in the midst of patent-enforcement efforts, will do almost anything to avoid being dragged into a PTAB battle where avoiding a premature end to an enforcement campaign is the primary goal.

For most patentees, there is not much they can do to avoid being dragged into an IPR defense. Especially if they are looking to recover more than nuisance value for a license to their patents. (As has been noted in this column and elsewhere, IPRs have done more to reduce the amount of money considered nuisance value in patent litigation than perhaps any other legal development in the patent space). Nowadays, it is almost a given that a defendant will file at least one IPR within the one-year time limit against any patent asserted against that defendant in litigation. And some defendants like to push the PTAB to the limits, by filing multiple IPRs (six in one case I know about) against a single patent. In short, IPRs are de rigeur in modern patent litigation.

Every so often, however, a patentee has the ability to try and stop IPRs in their tracks. The motivation to try and do so is clear. Eliminating the single greatest threat to an asserted patent is always worth the effort, especially in those high-value cases where the patentee is hoping for a real, rather than nuisance value, level of recovery. In fact, two recent decisions help define the contours around when a patentee may be able to keep a filed IPR from proceeding. Both cases involved contractual language involving the parties in the litigation — but also led to different results based on the different postures of the parties in each case.

The easier case perhaps is where the defendant had previously agreed not to challenge the validity of the patent, while also agreeing to a forum selection clause. In an April opinion, the Federal Circuit upheld the grant of a preliminary injunction requiring the defendant (MerchSource) to withdraw three filed IPRs against patents asserted against them by a small VR headset seller called Dodocase. Dodocase had entered into a licensing arrangement with MerchSource, with the governing license agreement containing a forum selection clause specifying that any disputes arising out of the licensing agreement would be litigated in California. Such a dispute arose when MerchSource decided to stop paying royalties. Which led Dodocase to sue, followed by MerchSource filing IPRs. The Federal Circuit agreed that the district court had not abused its discretion by interpreting the forum selection clause as excluding MerchSource’s ability to challenge the patents in the PTAB. 

In contrast to the result in Dodocase, a plaintiff called NuCurrent (designer of wireless charging solutions) was unable to stop Samsung IPRs targeting each of NuCurrent’s asserted patents. Like Dodocase, NuCurrent filed a motion for a preliminary injunction asking the court to order Samsung to withdraw the IPRs, based on an NDA that had been entered into by the parties a few years prior. That NDA had a forum selection clause requiring that any cases arising out of the NDA be filed in New York and no other jurisdiction — which would ostensibly include the PTAB. Here, however, the operative contract — the NDA — had expired a year before Samsung filed its IPRs. Accordingly, the SDNY’s Judge Denise Cote found that Samsung was not in breach of any obligations when it filed its IPRs. Without a breach by Samsung, no preliminary injunction could issue.

Interestingly, Judge Cote also decided to address the other preliminary injunction factors, providing a glimpse into how she views IPRs in the process. With respect to factor two, likelihood of irreparable injury, Judge Cote found that the AIA specifically contemplates IPRs proceeding concurrently with patent infringement cases. Add in the PTAB’s unique role in determining the validity of already-issued patents, and there was no basis for arguing that NuCurrent faced irreparable harm if the IPRs proceeded.

Similarly, the balance of hardships also tilted in Samsung’s favor, since it would face a time-bar against filing new IPRs if the preliminary injunction issued. Finally, Judge Cote found the public interest was satisfied if Samsung was allowed to challenge the patents via IPR, rather than being forced to litigate validity solely before her.

Ultimately, the role of IPRs in modern patent litigation shows no signs of abatement. Litigants on both sides, therefore, will continue to look for every advantage when it comes to IPRs. What Dodocase and NuCurrent demonstrate is that parties must show extreme caution when negotiating forum selection and non-aggression clauses — particularly where a patent dispute between the parties may end up in court.  For patentees, getting prospective defendants to agree to forum selection clauses that preclude those entities from filing IPRs is a worthwhile effort. And those worried about infringement claims should be very careful about agreeing to any restrictions on their ability to file IPRs in the future. Because defendants know that patentees will do everything they can to dodge the PTAB. Best not make it an easy dodge.

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.

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.

New York City Pride has concluded. Although many of the rainbow banners and decorations have been removed from storefronts and apartment terraces, the celebration’s energy continues throughout the city’s downtown neighborhoods. This year’s Pride was especially festive as it celebrated  the 50^th anniversary of the Stonewall riots. A precursor to Pride, one month after the Stonewall riots in 1969, a “Gay Power” demonstration was held in Washington Square Park. In 1970, Christopher Street Liberation Day commemorated the one-year anniversary of Stonewall.

Since the Stonewall riots, gay rights, like Pride, have grown. Perhaps the greatest advancement has been United States v. Windsor, a landmark United States Supreme Court case which held that the Defense of Marriage Act (DOMA) in its denial of the recognition of same-sex marriage, was a violation of due process.  “Love Wins!” was the popular message that emerged from Windsor. I imagine that most do not realize that Windsor involved a trusts and estates issue, as it applied to a married, same-sex couple. During Pride, I often reflect on the case and how an issue as mundane as estate tax could spark something as powerful as Windsor and its aftermath.

Edith Windsor and Thea Spyer married in Canada in 2007 after a decades-long relationship. Their home state of New York recognized the marriage. When Spyer died, in 2009, Windsor could not claim a marital deduction for estate tax, a deduction that was available for a heterosexual married couple. As a result, Windsor had to pay estate tax when Spyer died. In 2010, Windsor sued the federal government. The lawsuit sought to have DOMA declared unconstitutional and also to refund Spyer’s estate’s paid tax in the amount of $350,000. In a majority decision, Justice Anthony Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that DOMA was “a deprivation of the liberty of the person protected by the Fifth Amendment.”

Trusts and estates issues arise during the most difficult times in people’s lives. While mourning the loss of her spouse, Windsor was denied recognition of the relationship by something as stoic and ministerial as the IRS and its treatment of an estate tax deduction. In the past, same-sex couples suffered even worse inequities including inheritance laws that excluded same-sex spouses and partners. Couples who spent their lives together for decades were denied standing as next-of-kin in courts and unable to receive inheritances. Same-sex couples could not gift freely between each other without incurring tax, unlike heterosexual couples. Same-sex spouses were denied decision-making authority in end-of-life situations. Adoption by same-sex couples was difficult if not impossible.

Many of the aforesaid issues were dealt with by establishing a last will and testament  and advanced directives.  A proper estate plan will ensure your assets are distributed to whom you want, when, and how you want. Decisions will be made by your nominee and not whom the law dictates to be your decision maker. This is foundational to the practice of trusts and estates. The best way to ensure how to dispose of your assets is to express your wishes in a last will and testament, regardless of whether you are married or single. Similarly, a health care proxy is necessary to appoint an individual whom you choose to make medical decisions. Asserting one’s wishes in a last will and testament and health care directive guard not only against statutes, but also family members who may not be supportive or accepting of your life choices.

Pride, through the context of Windsor, provides several lessons. Although “Love Wins!” is the popular takeaway, we are also reminded that through family composition, relationship, and asset level, it is incumbent upon each of us to take care of our estate plan and further to be protected and treated equally by the law.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

People like to talk about Merrick Garland’s stolen seat and Keggy McAssaulterton’s dubious ascent to the Supreme Court, but people are largely sleeping on the lower courts that have been systematically restocked with FedSoc Pizza Managers. Elie, working on a big upcoming piece on this subject in The Nation, shares some of his thoughts on the state of the judicial system.

HARARE – Zimbabwe lawmaker Job Sikhala, vice-chairman of the opposition MDC party, was on Tuesday charged with treason after allegedly saying the party would overthrow the government before the next election, his lawyer said.

“He has been formerly charged with attempting to overthrow the government unconstitutionally,” his lawyer Obey Shava told AFP, saying his client denied the charges.

Zimbabweans have little faith in the economic record of the ZANU-PF government, which was led by President Robert Mugabe until 2017 when he was ousted in favour of current President of Zimbabwe Emmerson Mnangagwa.

The country has recently endured another bout of sharply rising prices, with official inflation now at nearly 100 percent – the highest since the hyperinflation era when it hit 500 billion percent.