Category: News Feeds

The legal world is eagerly awaiting the release of the 2022 U.S. News Law School Rankings later this month on March 30. Word on the street is that law school deans have already received their rankings fates under embargo, but the rest of us are still out here trying to analyze our crystal balls for any insight as to how the rankings may shake out this time around.

Over at Spivey Consulting Group, they’ve done the work for us and used available public data to calculate their predictions for the new Top 30 (or so) law schools in the country. Mike Spivey offers a cautionary take, noting that because over 50 percent of the U.S. News rankings comes from private data, these predictions are unlikely to be 100 percent accurate in any way.

Be that as it may, we’re happy to speculate with glee. Is this the new T14?

1. Yale
2. Stanford
3. Harvard
4. Columbia
4. Chicago
6. New York University
7. Penn
8. University of Virginia
9. University of California-Berkeley
9. Northwestern
11. University of Michigan (-2)
11. Duke (+1)
13. Cornell
13. Georgetown (+1)

Click here to see the full list of predictions.

*record scratch*

Make that the new T13, which apparently can be a thing. The last time there was a tie at the bottom of the top like this was seven years ago, back in 2014. Is Georgetown being rewarded in these hypothetical rankings for quickly firing a professor whose racist commentary went viral? No, but this is just a prediction, so we can dream. And what happened with Michigan and Duke?

We’re sure something happened with incoming students’ data and graduates’ employment statistics and bar passage rates at all of the schools that moved up and down in the “T13,” but we’ll have to wait and see if this prediction looks anything like the real-deal rankings in about two weeks. Stay tuned!

2022 U.S. News Law School Rankings Predictions [Spivey Consulting Group]

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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.

The annual ABA TECHSHOW was the last major event I participated in before the world locked down. Right before leaving Chicago in 2020, we all knew that COVID would wreak havoc on the country, but assumed that the combination of a global forewarning and the contact tracing and isolation protocols that successfully stifled the H1N1 outbreak would largely shield the country from devastation. We hadn’t counted on the option that no one in government was going to bother with any of that. There’s a lesson in there about never setting your expectations too high I suppose.

In any event, the world did undergo an extended crisis and the past year saw the legal technology space hypercharged as technoskeptic attorneys had to throw themselves fully into the legal tech world.

And as useful as that’s been for the attorneys themselves, it’s also been a boon for the tech providers themselves to finally have an opportunity to elicit feedback from a new population of lawyers facing new challenges in using these solutions.

Chatting with MyCase about its new developments, it struck me just how much it’s the little things that make practice easier. Or, probably more accurately, it’s the little things from the user’s perspective because what may seem like a small change still requires hours and hours of coding and testing.

For example, MyCase now offers in-app document editing. Users may not have even thought about this before since it’s so easy to grab documents and edit them, but the convenience of keeping everything in one application can’t be understated. Beyond the ease of use, it’s a huge deal for security. Instead of downloading and re-uploading documents, creating bunches of unnecessary copies on a variety of devices, the edited documents get seamlessly synced within MyCase. Word, Adobe, Excel… whatever lawyers are using, all changes made are automatically saved and instantaneously appear in MyCase as a new document version.

Or an internal chat feature so lawyers don’t have to close out of MyCase to ping a colleague. In the small firm world, this may not have seemed like a necessary feature until now. When the partner is just down the hall, there’s no need to keep a chat function open. But with people at home, instant messaging became essential.

One update that MyCase told me about that didn’t have its origins in the response to COVID, but in the changing legal business model, is a billing feature for firms that work on a subscription model. Enter the subscription price and billing frequency, and clients are automatically invoiced on a regular basis.

That’s kind of the theme of the last year in legal tech. No more “our AI product is replacing expert witnesses!” and more “look at how much easier we’ve made this.” And it’s progress that we’ve achieved in no small part by opening up the process to new voices who might not have made the plunge into legal technology but for the pandemic.

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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.

Back in August, I shared some insights from Lex Machina’s PTAB Report, which centered on the early impact of COVID-19 on the PTAB’s activity. As we rue the one-year anniversary (especially in New York City) of COVID-19’s devastating impact, we can also appreciate the tremendous efforts by everyone in the patent litigation community to keep things moving along as well as possible during the pandemic. In fact, in a press release announcing the issuance of their 2021 Patent Litigation Report (available with registration here), one of the report’s authors commented that the effects of the pandemic were not “as prevalent as originally predicted a year ago.” That said, it is important to remember when considering the findings in the report that 2020 was not a normal year — for any of us.

As is my wont, I would like to focus on three idiosyncratic takeaways based on my review of the report. In doing so, I’d like to illustrate some broader themes of what is really happening in current patent litigation, impacted as it has been by the pandemic. First, I’d like to focus on what the report deems High-Volume Plaintiffs. Second, I’ll look at what invalidity defenses have been successful for defendants, especially at relatively early stages of a patent case. Third, I’ll investigate the increasingly outsized role Texas plays when it comes to the handling of patent cases.

We can start with a look at what the report deems High-Volume Plaintiffs. Those come in three flavors. First, you have the patent owners pursuing a quick-hit, volume settlement approach. Where the target is an immediate settlement, often for less than $100,000. That evergreen activity does not seem to have been impacted by the pandemic, and may have been helped by a reluctance for target companies to spend big on hiring defense counsel. But that is low-stakes fare anyway.

More dangerous for operating companies are the second breed of High-Volume Plaintiff, the nuclear-bomb wielding (i.e., funded for bare-knuckle litigation to the end) patent assertion entity. Armed with pedigreed patents and the financial backing to detonate them at trial, this group of plaintiffs may be currently in the minority but are having an outsized impact on the universe of well-heeled defendants that are their targets. As just one example, the report notes that Google was sued in over 20 cases by just two such plaintiffs. Add in the spate of sky-high jury verdicts that were announced in the past year, and it is easy to understand why this slice of the patent litigation market commands so much attention on the defense side.

Perhaps more prosaically, the third type of High-Volume Plaintiff identified in the report falls in what we would normally term the “competitor case” category. One would expect that such a category would be populated by companies operating in a litigious industry, with 2020’s winner apparently being the electronic cigarette space. One of the giants in that industry, Juul Labs, found itself as the plaintiff in 50 filed cases in 2020, as well as a defendant in 30 cases as well. E-cigarettes — a patent litigator’s best friend.

Next, it was very interesting to see the report’s analysis concerning invalidity defenses. While we all know of Alice’s impact on patent litigation, the picture painted by the numbers is a stark one. Over 50 cases in 2020 alone were terminated on the basis of a 101 motion. More importantly, nearly all of those terminations were based on early motion practice — confirming that 101 motions are an effective tool for defendants to clear out weak cases early on. But there is another tool available to defendants that gets a lot less attention but has proven just as effective — the indefiniteness motion, which often gets made on summary judgment (without the need for much discovery as it arises out of the patent language itself) as part of claim construction proceedings. Such motions saw 25 cases terminated in a defendant’s favor last year, which may be a harbinger for more indefiniteness fights in cases going forward.

Finally, if it seems like all patentees would want to be in Texas, it is because that is increasingly true. Last year, the report shows that filings in the next most popular district, Delaware, dropped 26% compared to 2019. Texas, on the other hand, maintained its popularity, with nearly one-third of all patent cases filed in the state in 2020. Considering the restrictions on patent holders filing where they please because of TC Heartland, that is an astounding number. Moreover, I would venture to say that Texas filings comprise a much higher percentage of the “danger cases” — those brought by nuclear High-Volume Plaintiffs as discussed above. It is no secret, for example, that certain litigation funders will only consider funding patent cases that can be brought in Texas. For the foreseeable future, therefore, all eyes will remain on Texas when it comes to patent litigation, especially outside of the pharma/biotech realm.

Ultimately, the great thing about the report is that it has useful information for anyone impacted by patent litigation. And different people reading the report are likely to focus on the takeaways that are most germane to them. At bottom, however, we should be grateful to have had work to do over the past year. As well as thankful to Lex Machina for giving us a snapshot of what our collective efforts resulted in.

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.

Ohio has had it with Centene’s alleged “corporate greed.”

The state filed a lawsuit last week claiming that the St. Louis-based Centene company engaged in an elaborate plot to maximize profits at the expense of its Medicaid department. But Centene denies any wrongdoing, stating that the claims are “unfounded.”

The lawsuit alleges that Centene subsidiary Buckeye Health Plan, a managed care organization, used three subcontractors to provide pharmacy benefits in order to inflate costs. This resulted in millions of dollars in overpayments made by the Ohio Department of Medicaid, the state’s Attorney General Dave Yost said in a statement issued last Thursday. 

“Corporate greed has led Centene and its wholly-owned subsidiaries to fleece taxpayers out of millions,” Yost said. “This conspiracy to obtain Medicaid payments through deceptive means stops now.”

The lawsuit comes several years after a Columbus Dispatch investigation that described how Centene’s Buckeye Health Plan contracted with two companies, Envolve Health Solutions and Health Net Pharmacy Solutions, to administer pharmacy benefits though it had already hired CVS Caremark to manage these same benefits. In other words, Buckeye was double-billing the state by using two different sets of pharmacy benefit managers. 

Pharmacy benefit managers administer prescription drug benefits on behalf of health insurers, Medicare Part D drug plans, large employers and other payers. They essentially act as middlemen and their role in the drug distribution chain has faced increased scrutiny in recent years, according to a 2019 explainer by The Commonwealth Fund. This is largely because pharmacy benefit managers often receive rebates that are calculated as a percentage of the manufacturer’s list price, meaning they get a higher rebate for more expensive drugs.

In this case, suspicions were raised due to the fact that Buckeye charged nearly double for prescription drugs compared with other managed care organizations hired by the state to coordinate Medicaid services.

The attorney general’s office, through outside counsel, investigated Centene and Buckeye and found evidence of several contract violations. These include filing reimbursement requests for amounts already paid by third parties, failing to accurately disclose the true cost of pharmacy services and artificially inflating dispensing fees.

The lawsuit was filed in the Franklin County Court of Common Plea under seal due to a confidentiality and nondisclosure agreement.

In a statement issued last week, Centene said that its pharmacy contracts are reviewed and pre-approved by state agencies before they go into effect. The insurer also claimed that these pharmacy benefit services saved millions of taxpayer dollars for Ohioans.

“We look forward to answering any of the attorney general’s questions,” the insurer said. “Our company is committed to the highest levels of quality and transparency.”

This is not the first time AG Yost has gone after pharmacy benefit managers. Just last year, Yost filed a lawsuit against Express Scripts, accusing the company of multiple contract breaches that allowed it to pocket millions in overcharges to the state.

Photo: Hailshadow, Getty Images

Immigration lawyers are sleeping a little better these days, yes, but I can’t say that our days of anxiety are over quite yet. We are constantly scratching our heads about where our clients fit into new policies. One of the latest conundrums revolves around whether a client is impacted by one of the myriad of bans currently on the books.

President Joe Biden kept his promise and reversed the Trump administration’s infamous Muslim Ban immediately upon taking office, making it possible for immigrants from seven Muslim countries to resume their immigration journeys after four years of being shut out of the United States. But that was only one of several bans that emerged in the past few years, particularly during 2020. People have been banned from obtaining new temporary or permanent visas (green cards). The bans are visa- as well as country-specific. Essentially, COVID-19 gave Trump what Congress wouldn’t — limited immigration.

The pandemic brought all U.S. embassies around the world to a complete halt, postponing interviews and appointments that had taken years to schedule — sometimes one year, sometimes 10 or more.

But rather than creating a national strategy for reducing all travel into the U.S. to curb the pandemic, Trump used the opportunity to ban specific visa categories. Biden recently lifted the ban on those getting new green cards but certain work visas such as H-1B (skilled professionals), H-2B (temporary nonagricultural jobs), L-1 (multinational transfers), and J-1 (short-term visas generally used by trainees and au pairs) remain banned. The ban is in place until March 31, 2021.

At the time, industry leaders objected to the ban on work visas, which left many of the workers they had already hired stranded overseas. Their concerns were borne out in 2021 reports that show that the bans were ineffective in saving jobs and that industries, have in fact been harmed and many jobs went unfulfilled.

The country-specific ban includes 26 European countries collectively referred to as the Schengen area. Bans are in place for China, Iran, Brazil, and South Africa.

There are clear exceptions to these bans, such as for U.S. citizens, green card holders, and spouses and minor children of U.S. citizens and green card holders.

For those who do not meet the above exceptions, a national interest exception (NIE) was created for those subject to the Schengen ban. Initially, the exception was to prove their work serves the “U.S. economic interest.” It applied to certain technical experts and specialists, senior-level managers and executives, treaty traders and investors, professional athletes, and their dependents. It should be noted that treaty investors and traders are citizens from countries with which the U.S. has treaty agreements. Treaty investors (E-2 visa) will on average invest at least $100,000 in their U.S. businesses — often much more — and provide the embassy with business plans for creating American jobs. Treaty traders must prove substantial trade between America and the home country. Such noncitizens make contributions to the U.S. economy even before they arrive here.

On March 2, 2021, the current administration rescinded the above guidance for Schengen countries. The exception of “substantial economic benefit” which was broad and allowed noncitizens to show their economic contributions was beneficial to America, is further restricted and replaced by a narrow and specific standard of “vital support for critical infrastructure.”  This standard requires noncitizens to prove their work will benefit specific infrastructure sectors including healthcare and public sector, agriculture, chemical, transport, energy and more listed in a memo by the DHS Cybersecurity and Infrastructure Security Agency.

Many of the visa applicants, especially treaty visa applicants, who have businesses, financial ties, and contributions in the U.S., will unlikely meet these new requirements. Some embassies have emailed immigration lawyers to expect fewer E-visa approvals, others have updated their website to reflect the change.

We as immigration lawyers have found ourselves doing the visa-ban vs. country-ban game. What visa category are we working with, what country is the client from, and is there a national interest exception? And, if there is a NIE, how is a specific embassy handling the process and what kind of evidence do we need? It’s all rather stressful and complicated, especially as not all embassies have been treating the NIE in the same way.

As things stand, the situation is fluid, frustrating, and difficult. Many people who are awaiting entry into the U.S. can actually help our flagging economy. And though there needs to be a balance between the pandemic and the economy, measures can be put into place to ensure those who enter go through a more stringent COVID-testing procedure rather than restricting the visa exceptions.

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Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

* A Texas brewery has changed its name after another brewery filed a lawsuit claiming the name was too similar to their own. They should have resolved this dispute with a Beerfest-style competition… [San Antonio Current]

* A New York lawyer claims he cannot competently defend his client in court while wearing a mask. [Syracuse.com]

* A Virginia lawyer, who allegedly tried to cultivate a romantic relationship with two clients, has been suspended from practice. [Virginia Lawyer’s Weekly]

* Breonna Taylor’s boyfriend has filed a federal civil rights lawsuit against the Louisville Police Department. [Essence]

* Check out this article on how the lawyer in the Jurassic Park movie differs from the book. Wonder if he still dies in the same memorable way… [Screen Rant]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

As an unprecedented year comes full circle, many businesses are taking the opportunity to reassess their business development strategies, tactics, and goals. For law firms, some trends have become clear – and now is the time to take stock and make sure your firm is keeping up, says business development and marketing expert Deborah Farone.

Assess your technology. “There’s much more stress on the technology that marketing departments are using,” Farone observes. “Because everyone is working from home, people need information online, at their fingertips.” CMOs and partners expect their teams to be able to implement dashboards they can use to access client data, from pitching, to billing, to client service teams.

The tech marketers and lawyers use to connect day-to-day has also found a place in the spotlight. “We’re all pushing the envelope by trying to be more creative in how we engage people,” says Farone. By now, most lawyers know to avoid using cat filters on their Zoom calls – but there’s still plenty to learn. Marketers can lead the way in making seminars and meetings engaging and interactive, using branded backgrounds, chat boxes, polling, and Q&A tools.

Invest in training. This past year has seen a rise in training for lawyers at all stages of their careers. Farone observes: “Firms are realizing that each individual has a value, especially if the firm has downsized or furloughed professionals. Savvy firms are looking at ways to support employees to be the best at what they do. Training helps expand skillsets, but it also sends a message to people that they matter, and that the firm cares about you and wants to invest in your future.” She adds, “Younger lawyers really want to be part of the business and they want a sense of purpose. So I see firms doing more business development training earlier in lawyers’ careers.”

Always connect. By now, if lawyers haven’t gotten into the habit of engaging personally with key clients and contacts, they are putting key relationships at risk. “One-on-one conversations are vital,” says Farone. “If we’ve seen any attribute matter more than ever, it’s empathy.”

At the outset of the shutdown, she advised firms to “Make sure you have a good system to reach out to clients on a regular basis, particularly if you’re not working with them on something. There’s a great value to simply being in touch. Lawyers still can call and ask, ‘How are you doing, is there anything I can do for you?’” They can even offer friendly assistance, such as advice from their IT department or help finding a job for a family member. “Build connections by helping people where it’s appropriate and needed.”

This is another area where marketing teams can be useful, she suggests: “A good marketing department can help develop questions for partners to ask clients, or suggest a few things to offer them – such as joining an online cultural event, or participating in a speaking engagement or webinar.” Personalizing these recommendations is important, of course: “We need to be real and authentic.”

Firms have gotten creative about virtual events, from yoga to gallery tours, to intensive discussions of diversity topics. Still, Farone advises, “You can do all the creative events in the world, but there’s nothing that’s going to replace that personal phone call. I’ve spoken to many general counsel who haven’t gotten these calls, who say how nice it would be if they did. So I think there is a disconnect between the firms saying that they are reaching out, and the clients who are not getting that message.”

Beware of memo fatigue. Building on the “empathy” point, Farone notes, “You really have to understand what your client is going through and provide them with what they need.” Don’t feel obligated to produce client alerts covering every regulatory development – chances are, other firms are doing this already, and clients are overwhelmed with redundant analysis.

“It’s important to ask clients, what kinds of updates do you want? Is it lengthy, in-depth client memos, or would it be better for me to call you, have a weekly meeting with your staff, or host a monthly meeting with others in your industry? Have those conversations and design your outreach based on what your client wants, rather than what we as law firms think they want.”

Look to other industries. Law firms can operate in a bubble, while corporations and other organizations zoom ahead with innovative ways to reach clients. Learn from them, Farone says – for example, focus groups are a great way to gather feedback and spark ideas. Knowledge and a little bit of creativity can spark new marketing ideas.

Get additional insights from Farone and leading law firm partners in Practising Law Institute’s on-demand One-Hour Briefing, Business Development: Best Practices Post-Pandemic.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

Which Biglaw firm took the top spot on Vault’s 2021 Best Law Firms in Southern California ranking?

Hint: The firm was founded by its namesake partners in 1934 to focus on tax and employment law.

See the answer on the next page.