Category: News Feeds

“Woke up feeling like I just might run for president / Even if there ain’t no precedent, switching up the messaging / I’m about to add a little estrogen.” — Lizzo

This week, in honor of International Women’s Day, I had the opportunity to reconnect with Anjie Vichayanonda, Founder of Leg Up Legal, whose mission is to disrupt and revitalize the legal industry pipeline by providing meaningful mentorship to everyone.

We covered a wide range of topics, from her latest co-authored book to dealing with COVID-19 one year later. Every time I connect with Vichayanonda, it is always meaningful — as she shares both strategic and tactical advice for our audience to act upon.

Without further ado, here is a (lightly edited and condensed) write-up of our conversation:

Renwei Chung (RC): You recently published a book titled #Networked: How 20 Women Lawyers Overcame the Confines of COVID-19 Social Distancing to Create Connections, Cultivate Community, & Build Businesses in the Midst of a Global Pandemic. Can you provide a brief overview for our ATL audience?

Anjie Vichayanonda (AV): Yes, I had the honor of being a co-author of #Networked alongside 19 amazing women lawyers. We all met on LinkedIn and joined a group DM with 30 other women at the beginning of the pandemic. Our group is diverse in age, ethnicity, and geography. I found myself chatting with all of these ladies in our group DM almost hourly at the beginning of the pandemic in March 2020.

It was fascinating for me to hear the stories of how the pandemic was impacting our daily lives, our law practice, and our businesses. We found solace and support in each other and realized that we were building something really special so 20 of us got together and wrote #Networked, which is a collection of our stories about the early days of the pandemic.

RC: Did any of you know each other outside of LinkedIn?

AV: No, as far as I know, before joining our group DM, none of our members knew each other offline. That’s part of what made this whole experience so impactful for me because I realized that you can really build strong connections through LinkedIn. To get to know each of the women in our group more closely, I had one-on-one Zoom calls with many of them, interacted with them on group Zoom events, followed their posts and content, and participated in the group chat every day.

I now feel closer to many of the women in our group than I do to many of the colleagues and friends from professional circles offline. I’ve laughed with them and cried with them. We’ve celebrated birthdays and professional successes. Many of us have supported each other by collaborating on podcasts, events, and by referring new business to each other. I’m just so surprised about the whole experience because I’ve never been one to have a close-knit group of girl friends, and I found my sisterhood during a pandemic in the oddest of places — LinkedIn.

RC: Several of my mentees have recently inquired about networking after law school. Do you have any tips?

AV: My first tip is don’t wait until after law school! Especially during these times of social distancing, you should be growing your network and finding support right now. My advice is to start reaching out to attorneys for informational interviews. Identify attorneys who you want to connect with through LinkedIn, professional organizations, alumni connections, or bar associations. Invite them to do a 30-minute informational interview on Zoom (and use a scheduling tool like Calendly or Appoint.ly to make scheduling easy for them).

During the informational interview, build rapport with the attorney by asking them questions about their journey instead of just asking about their work responsibilities. Ask them questions like what led you to pursue law school? What was your law school experience like? How did you find jobs during law school and how did you pick which practice areas to pursue? These questions will help you get to know the attorney’s motivations and understand their interests. Ask the attorney for advice and use that advice as an opportunity to follow-up afterwards. Ask them what organizations you can join that are focused in their practice area, or ask them if there are upcoming CLEs or events you can attend to learn more about their practice area.

Then, when you take that advice, write back to the attorney and let them know the result. Keep a spreadsheet or a Notion file of your contacts to keep track of when you last spoke to each contact. Use calendar reminders to help you remember to follow-up with your contacts. For follow-ups, you can send updates of your milestones and successes, ask for more advice, offer to connect your contacts to other people, share relevant articles or events, or praise your contact for a recent accomplishment.

RC: What recommendations do you have for law students and young attorneys for dealing with this pandemic era?

AV: Be more intentional about maintaining relationships. Most humans crave connectivity and belonging so it is important for your well-being to stay connected to others. Invite a classmate or colleague to do a standing Zoom lunch every other week. Find events that you can attend and actively participate during the event.

It’s really easy to attend virtual events and shut your camera off and try to multitask during the event, but you’re not going to get to know anyone that way and you’re not going to take away much value. So, when you attend a virtual event, make sure you at least introduce yourself in the chat box or jump on camera to ask questions and engage with people at the event if possible.

RC: What have you learned about yourself and others over the past year or so?

AV: I’ve learned that one of my superpowers is connecting people and teaching them how to build relationships. Everyone talks about networking as if it is a natural skill, but there’s a lot of awkwardness in building professional relationships. And almost everyone feels intimidated by networking at first, especially if you don’t have a lot of professional experience.

I’ve learned that many people have anxiety about reaching out to other professionals for mentorship or guidance, and even if they build up the courage to reach out once, it is hard for them to find ways to keep up the connection.

RC: I enjoyed our recent Zoom Meetup, what prompted you to start this series?

AV: I started our weekly Zoom Meetups to build a community of prelaw students, current law students, and lawyers who could support each other during these times of social distancing, and give our community information and resources that would help them excel in their careers. Every week, we invite guest speakers, including lawyers, law school admissions professionals, prelaw advisors, career coaches, and more, to share some wisdom with our community.

We always reserve time at the end of each meetup for an open Q&A so that participants can interact with the speaker and each other. To create a dedicated networking opportunity, we also host a biweekly virtual happy hour on Zoom for all prelaw students, current law students, and lawyers. During the happy hours, we split everyone into one-on-one breakout rooms so they can have higher quality interactions, and then we come back together as a group to share information that we learned in the breakout rooms.

RC: In our conversation, many of the same themes have popped up: “finding your tribe,” “getting connected,” and “being intentional about your career.” What tools do you specifically leverage to accomplish these goals?

AV: Luckily, we have so many tools now to help us maintain our relationships and stay connected. I started creating content on social media and hosting virtual events last year to help law students and lawyers stay connected and have networking opportunities.

My content started creating value for my connections so they shared that content across LinkedIn and my network grew very quickly. When you share content on social media, it helps to keep you top of mind among your professional connections. If you don’t have the time to reach out to each of your contacts regularly, social media can be a great tool to reach a lot of your network at once. Specifically, I post on LinkedIn at least three to five times a week, and use a post scheduling tool so that I don’t have to login every day to post. I also post about our events on Instagram and Facebook.

I use LinkedIn and Zoom to connect with new people and invite them to meet with me so I can learn more about them and find ways we can collaborate. LinkedIn will help you expand your network, and video meetings will help you deepen your connection.

My co-authors from #Networked all use a group DM on LinkedIn to stay connected and chat everyday. I speak to a lot of lawyers who simply don’t think LinkedIn is worth the effort or that they don’t have time to use social media professionally, but it’s those same lawyers who tell me that they feel isolated and detached from their community and colleagues. Whether we like it or not, our personal and professional lives have started to move more online during the COVID-19 pandemic and people have started building real communities of support online. So, if you’re feeling disengaged, you may want to consider amping up your social media game.

RC: Thank you for your time today, is there anything else you’d like to share with the ATL audience?

AV: If you are interested in getting a raw and candid perspective of how other lawyers, specifically women lawyers, have juggled their work and personal lives during the pandemic and found ways to connect with others, check out #Networked. It’s available on Amazon here:

And if you’d like to connect with me and the other ladies of #Networked, come find me on LinkedIn.

On behalf of everyone here at Above the Law, I would like to thank Anjie Vichayanonda for taking the time to share her story with our audience. We look forward to following her successes and wish her continued achievements in her career.

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If everyone’s going to be talking about Dr. Seuss, then we need to talk about this terrible decision from the Ninth Circuit a few months ago. Not to validate the idea of “cancel culture” in the particular way it’s often bandied about as a sort of whining over people not wanting to be associated with certain ideas, but because when law takes away the ability to express them in the first place, that’s censorship, it’s an affront to the First Amendment, and it’s something we all should be outraged about. And, as this case illustrates, the law in question is copyright.

We’ve written about this case, Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020), many, many times before: some people wrote a mash-up using Seussian-type imagery and Star Trek vernacular to express new ideas that neither genre alone had been able to express before. And Dr. Seuss’s estate sued them for it.

The little bit of good news: their trademark claim failed. Applying the Rogers test to determine whether the Lanham Act could support such a claim, both the district court and the appeals court agreed: it didn’t.

Under the Rogers test, the trademark owner does not have an actionable Lanham Act claim unless the use of the trademark is “either (1) not artistically relevant to the underlying work or (2) explicitly misleads consumers as to the source or content of the work.” Neither of these prongs is easy to meet. As to the first prong, any artistic relevance “above zero” means the Lanham Act does not apply unless the use of the trademark is explicitly misleading. Boldly easily surpasses this low bar: as a mash-up of Go! and Star Trek, the allegedly valid trademarks in the title, the typeface, and the style of Go! are relevant to achieving Boldly’s artistic purpose. Nor is the use of the claimed Go! trademarks “explicitly misleading,” which is a high bar that requires the use to be “an ‘explicit indication,’ ‘overt claim,’ or ‘explicit misstatement’” about the source of the work. Thus, although titling a book “Nimmer on Copyright,” “Jane Fonda’s Workout Book,” or “an authorized biography” can explicitly misstate who authored or endorsed the book, a title that “include[s] a well-known name” is not explicitly misleading if it only “implicitly suggest[s] endorsement or sponsorship.” Boldly is not explicitly misleading as to its source, though it uses the Seussian font in the cover, the Seussian style of illustrations, and even a title that adds just one word—Boldly—to the famous title—Oh, the Places You’ll Go!. Seuss’s evidence of consumer confusion in its expert survey does not change the result. The Rogers test drew a balance in favor of artistic expression and tolerates “the slight risk that [the use of the trademark] might implicitly suggest endorsement or sponsorship to some people.” [p. 31-32]

Note: as you read the quotes from the decision be aware that the court regularly refers to the mash-up as “Boldly” and the original Seuss work it riffed on as “Go!”

But while the Ninth Circuit was accommodating to artistry on the trademark front, it was hostile on the copyright front and overturned the district court’s finding that the mash-up was fair use. It walked through the fair use factors with its thumb heavily on the side of the copyright owner, willfully blind to any “countervailing copyright principles [that would] counsel otherwise.” [p. 11]. For instance, on the second factor, the nature of the work, it looked at the mash-up with a harsher eye because the original work had been a creative one, rather than one more informational. (“Hence, Boldly’s copying of a creative and “expressive work[]” like Go! tilts the second factor against fair use.” [p. 19])

But what’s most alarming is not just how the court applied the other factors, but how its analysis effectively expanded the power of a copyright holder to shut down others’ subsequent expression, far more than the statute allows, the Progress Clause of the Constitution permits, or the First Amendment tolerates.

For instance, on the fourth factor, because the original work, “Oh, the Places You’ll Go,” targeted the graduation market, the court gave it the power to shut out subsequent works that also might serve the same market by somehow construing the mash-up as a competitor with the original, even though it was a distinctively different creature—after all, there was no Star Trek in the original, and the appeal of the second work was entirely based on consumers wanting both genres combined in one.

The court further hangs this analysis on the fact that one of the exclusive rights a copyright holder has is the ability to license derivative works. But when combined with its flawed analysis on the first factor, transformativeness, and also the third, examining the amount and substantiality of the original used, it lets that right to license derivatives effectively swallow all fair use. The Dr. Seuss estate likes to license its works, the court reasons, including to those who might want to combine them with other genres. But if people could do these sorts of mash-ups for free then the Dr. Seuss estate would have a harder time making money from those licenses.

Crucially, ComicMix does not overcome the fact that Seuss often collaborates with other creators, including in projects that mix different stories and characters. Seuss routinely receives requests for collaborations and licenses, and has entered into various collaborations that apply Seuss’s works to new creative contexts, such as the television and book series entitled The Wubbulous World of Dr. Seuss, a collaboration with The Jim Henson Company, famous for its puppetry and the creation of other characters like the Muppets. Other collaborations include a digital game called Grinch Panda Pop, that combines Jam City’s Panda character with a Grinch character; figurines that combine Funko Inc.’s toy designs with Seuss characters; and a clothing line that combines Comme des Garçons’ heart design with Grinch artwork. [p. 28-29]

Of course, the answer to this concern is “so what”? Because if the court were right, and this were the sort of market harm that would trump fair use, it would mean that the only such combinations we will ever get are the ones that the Dr. Seuss estate deigns to allow—assuming they allow any at all, because, per the court, it’s totally ok if they don’t (“Seuss certainly has the right to “the artistic decision not to saturate those markets with variations of their original.” [p. 29]). If it chooses not to license a mash-up with Star Trek, then the world will never get a Seussian-Star Trek mash-up. Even though that’s exactly the sort of making-something-new-there-hasn’t-been-before creativity that copyright law is supposed to incentivize. Copyright law exists so that we can get new works, but per this Ninth Circuit decision the function of copyright law is instead to obstruct them.

And it won’t just be this particular mash-up that we’ll have to do without. Because with this decision the court is giving copyright holders the power to not only veto subsequent uses of a work but an entire expressive vernacular (and one that may even transcend any particular copyrighted work).

In fact, this lawsuit manages to not even be about the alleged infringement of a particular work. In some ways it is, such as the way the court takes issue with the fact that the mash-up referenced 14 of the 24 pages of the original Seussian “Places You’ll Go” book [p. 20]. Of course, even that view ignores how unfaithful a copy the later work must inherently be given how much got left behind of the original, and how much space the omissions left for something new. But the court was even more put out by the pieces of the work used, objecting strenuously to the detail of the references, even though the use of that detail was so that the reference could be a meaningful enough foundation upon which to convey the new idea of the subsequent work.

Crucially, ComicMix did not merely take a set of unprotectable visual units, a shape here and a color patch there. For each of the highly imaginative illustrations copied by ComicMix, it replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations. ComicMix’s claim that it “judiciously incorporated just enough of the original to be identifiable” as Seussian or that its “modest” taking merely “alludes” to particular Seuss illustrations is flatly contradicted by looking at the books. During his deposition, Boldly illustrator Templeton detailed the fact that he “stud[ied] the page [to] get a sense of what the layout was,” and then copied “the layout so that things are in the same place they’re supposed to be.” The result was, as Templeton admitted, that the illustrations in Boldly were “compositionally similar” to the corresponding ones in Go!. In addition to the overall visual composition, Templeton testified that he also copied the illustrations down to the last detail, even “meticulously try[ing] to reproduce as much of the line work as [he could].” [p. 20-21]

And it wasn’t even the pieces of that work that irked the court. In defending its distaste for these verbatim references, the court cites the mash-up’s inclusion of the illustration of the machine from Sneetches, which was, not incidentally, an entirely different work than the book the defendants were being accused of copying too much from.

For example, ComicMix’s copying of a Sneetches illustration exhibits both the extensive quantitative and qualitative taking by ComicMix. Sneetches is a short Seuss story about two groups of Sneetches: the snooty star-bellied Sneetches and the starless ones. The story’s plot, the character, and the moral center on a highly imaginative and intricately drawn machine that can take the star-shaped status-symbol on and off the bellies of the Sneetches. Different iterations of the machine, the heart of Sneetches, appear in ten out of twenty-two pages of the book. ComicMix took this “highly expressive core” of Sneetches. Templeton testified that “the machine in the Star-Bellied Sneetches story” was “repurposed to remind you of the transporter” in Star Trek. Drawing the machine “took. . . about seven hours” because Templeton tried to “match” the drawing down to the “linework” of Seuss. He “painstakingly attempted” to make the machines “identical.” In addition to the machine, Boldly took “the poses that the Sneetches are in” so that “[t]he poses of commander Scott and the Enterprise crew getting into the machine are similar.” Boldly also captured the particular “crosshatch” in how Dr. Seuss rendered the machine, the “puffs of smoke coming out of the machine,” and the “entire layout.” [p. 23]

In other words, because the machine was important to a (completely different) story, the Dr. Seuss estate got to say no to anyone who wanted to reference that import. Yes, the mash-up referenced it in detail, but that’s how the reference could be recognizable. The court is clearly offended by any verbatim copying of any aspect of the image, but fair use does not forbid verbatim copying or otherwise require deprecating the quality of the original. Yet per the court’s reasoning, verbatim references in “overall composition and placement of the shapes, colors and detailed linework” are off-limits, even though using them did not amount to making an infringing copy of the entire work, page, or even full illustration and ultimately became part of something substantially different from the original. Because even if the original work had certain characters in certain poses that the mash-up emulated, it didn’t have them posed in the futuristic environment that the mash-up expressed. That overall visual tableau was something new and different and transformative.

Above is a representative sample of what the plaintiffs showed to compare the two works so you can see what was literally referenced by the mash-up, and how much was obviously different about its own expression.

But the court also glossed over that transformative quality in its analysis of the first factor, instead focusing only on what was the same about the first work instead of what was different.

ComicMix copied the exact composition of the famous “waiting place” in Go!, down to the placements of the couch and the fishing spot. To this, ComicMix added Star Trek characters who line up, sit on the couch, and fish exactly like the waiting place visitors they replaced. Go! continues to carry the same expression, meaning, or message: as the Boldly text makes clear, the image conveys the sense of being stuck, with “time moving fast in the wink of an eye.”

ComicMix also copied a scene in Sneetches, down to the exact shape of the sandy hills in the background and the placement of footprints that collide in the middle of the page. Seussian characters were replaced with Spocks playing chess, making sure they “ha[d] similar poses” as the original, but all ComicMix really added was “the background of a weird basketball court.”

ComicMix likewise repackaged Go!’s text. Instead of using the Go! story as a starting point for a different artistic or aesthetic expression, Hauman created a side-by-side comparison of the Go! and Boldly texts in order “to try to match the structure of Go!.” This copying did not result in the Go! story taking on a new expression, meaning, or message. Because Boldly “left the inherent character of the [book] unchanged,” it was not a transformative use of Go!. [p. 17-19]

It’s bad enough that it supplanted the district court’s original fact finding with its own dismissive judgment, and that copying of an image from a separate work was bizarrely being used as evidence of infringement of the first. But the cynical determination that the second work was only a “repackaging” of any work designed to “avoid the drudgery in working up something fresh” because of how it used certain elements, including ephemeral elements (composition, posing, story structure), in order to produce something fresh, expands what a copyright holder in a work ordinarily can control and puts all sorts of fair reuse out of reach of subsequent creators.

Boldly also does not alter Go! with new expression, meaning, or message. A “‘transformative work’ is one that alters the original work.” While Boldly may have altered Star Trek by sending Captain Kirk and his crew to a strange new world, that world, the world of Go!, remains intact. Go! was merely repackaged into a new format, carrying the story of the Enterprise crew’s journey through a strange star in a story shell already intricately illustrated by Dr. Seuss. Unsurprisingly, Boldly does not change Go!; as ComicMix readily admits, it could have used another primer, or even created an entirely original work. Go! was selected “to get attention or to avoid the drudgery in working up something fresh,” and not for a transformative purpose. [p. 16-17]

And that’s the crux of the matter, because if a mash-up like this, that merged two aesthetics that had never been merged before, even if to convey a similarly inspirational message (“In propounding the same message as Go, Boldly used expression from Go! to “keep to [Go!’s] sentiment.” [p. 16]), can violate a copyright, then a copyright holder has enormous veto power over all subsequent expression that might use the cultural vocabulary it ever introduced.

And that’s what’s truly canceling.

Oh The Culture You’ll Cancel, Thanks To The Ninth Circuit And Copyright

Court Allows Lawsuit Over Abusive Copyright Trolling DMCA Notices To Move Forward
Thousands Of Security Cameras, Archived Footage Exposed After Surveillance Company Verkada Is Hacked
Utah Legislature Wraps Up Session By Passing Two Unconstitutional Internet Bills

We recently set out to benchmark how remote litigators are approaching their work at the pandemic’s one-year mark.

One videoconferencing question we had to ask, considering recent events: “Would you be able to immediately turn off a cat filter if necessary?” 

Some good news: The “yes” column is over 50%! 

But … it’s actually a little close.

Would you be able to immediately turn off a cat filter if necessary?

Stay tuned in the coming week for our report on how remote litigators are approaching their work — their attire, setup, tech stack, and more.  

Are You A Trial-By-Videoconference Champion? [Above the Law] 

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Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn. 

The Justice Department prosecutors investigating the January 6 Capitol Riot have asked the court for more time to bring the cases to trial citing the sheer quantity of crimes and the mountain of evidence thereof.

As first reported by Politico, U.S. Attorneys in D.C. have filed motions in several cases asking to suspend the 70-day trial requirement. Under a provision of the Speedy Trial Act, the court may grant a continuance upon finding that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”

The court may consider “[w]hether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.” And indeed a possible RICO prosecution of a domestic terrorist group who believed they were obeying the lawful orders of the commander in chief might check a lot of those boxes.

And indeed the evidence appears to be extensive.

Defendants charged and under investigation come from throughout the United States, and a combined total of over 900 search warrants have been executed in almost all fifty states and the District of Columbia. No less than fourteen law enforcement agencies were involved in the response to the Capitol Attack, which included officers and agents from U.S. Capitol Police, the District of Columbia Metropolitan Police Department, the Federal Bureau of Investigation, the Department of Homeland Security, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Secret Service, the United States Park Police, the Virginia State Police, the Arlington County Police Department, the Prince William County Police Department, the Maryland State Police, the Montgomery County Police Department, the Prince George’s County Police Department, and the New Jersey State Police. And even more local, state, and federal agencies and field offices throughout the country have been tasked with carrying out various aspects of investigations. Documents and evidence accumulated in the Capitol Attack investigation thus far include: (a) more than 15,000 hours of surveillance and body-worn camera footage from multiple law enforcement agencies; (b) approximately 1,600 electronic devices; (c) the results of hundreds of searches of electronic communication providers; (d) over 210,000 tips, of which a substantial portion include video, photo and social media; and (e) over 80,000 reports and 93,000 attachments related to law enforcement interviews of suspects and witnesses and other investigative steps.

“The volume of discoverable materials is likely to be significant,” the DOJ notes drily.

Wait ’til that guy who put his feet up on Speaker Pelosi’s desk and screamed at Judge Christopher R. Cooper about having to stay in jail for two months pending trial finds out that the government plans to take its sweet time on this one. Womp womp.

Prosecutors seek a slowdown in Capitol attack cases, calling probe the ‘most complex’ in history [Politico]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Ed. note: This is the latest in a series on the changing practice of law. Click here for the prior installment. 

As the world lives life online more than ever because of the COVID-19 pandemic, data privacy becomes an ever-more-serious concern. 

Above the Law recently connected with Kelvin Coleman, the executive director of the National Cyber Security Alliance, to gain his insight into the many issues surrounding data security and privacy. 

Coleman has two decades of cybersecurity experience, having served in posts at the White House and the U.S. Department of Homeland Security, as well as in the private sector.

Here, he weighs in on biometrics, the regulatory landscape, and how long-standing tactics like “phishing” remain a persistent threat. 

This interview has been edited for length and clarity. 

ATL: Because the pandemic is on everyone’s mind we’ve been hearing a lot about biometrics and safeguarding people’s privacy regarding this type of data. Is there anything happening on that front?

Coleman: The pandemic brought telehealth, telemedicine, and biometrics to the forefront, but we knew before the pandemic that we had to protect this information on two levels. 

One is a cybersecurity level, meaning you want to make sure that whatever information you are collecting is protected from malicious actors, so they are not able to penetrate your systems to get that information. 

The second point with telehealth and telemedicine is that certain individuals may treat your information like money, right? Health information has tremendous value to bad actors. And so we’ve really encouraged individuals and businesses to treat information like money and to protect it for their businesses. 

ATL: Remote work has exploded. Has this brought any particular data privacy concerns to the surface related to remote-work technology?

Coleman: It only expanded what we were already fighting. Cyberattacks were happening, but increased at least 200 percent with the pandemic. Some might be scams saying, “Hey, click here to learn more about the stimulus,” right? Or, “Click here to learn more about vaccines,” or “Click here to find out where you can be tested.”

When a natural disaster happens on a national scale, bad actors will use that as an opportunity to hurt people. That activity has increased in so many ways. 

[In the past few years] we’ve seen a number of massive data breaches involving remote operating structures — healthcare, schools, things of that nature. What the bad actors are getting right now is a target-rich environment because so many people are working from home. They may have a chief information officer or network administrator help them protect that information. 

For students, they all become their own security. So it has changed, but only in the sense that you see so much more activity.

ATL: So, the nature of the attacks is the same, but they are occurring more often?

Coleman: That’s right. When I talk to reporters and others, they want me to tell them about the big, shiny, new threat that’s out there. 

And, you know, I hear crickets when I mention “phishing.” But it works. 

Why change tactics, tools, or techniques, if they’re working? And so phishing is still at the top for bad actors, especially during the times of COVID.

ATL: Given the target rich environment because of remote work structures, are there best practices companies can use to make their remote work apparatus as secure as possible?

Coleman: Absolutely. And again, it’s not as exciting as you would expect. 

First, passwords are still relevant. A robust alpha-numeric password is an important step in blocking bad actors from carrying out their mission to get into your network. 

Second, multi-factor authentication gets you that much more protection. 

Third, make sure you are updating your machines and devices. You need to keep up with the latest updates. And those things usually come automatically. If you have to click “update now,” we encourage people to make sure they’re doing that.

I think those three things alone can have a tremendous impact on making sure you become less of a target. You’re 40 percent less likely to be a victim of an attack. 

ATL: Suppose you were playing the role of a company’s legal counsel and you had to go to the executives and say, ‘This is what we should be doing to safeguard data privacy.’ What kind of advice would you give?

Coleman: Three things come to mind right away to help mitigate the risk of attack. 

One is insurance policies. They’re pretty important should a breach occur. Would your policies cover ransomware payments, damage to digital assets, et cetera? And for law firms, they have personally identifiable information on their clients, information that the clients don’t want anyone else to know. So to review those insurance policies is very important.

Two, [companies and law firms] need to develop and implement a cyberattack protocol. An effective incident response procedure is key for organizations. You have to make sure you’re prepared.

Three, testing your cyberattack protocol is very important. You can hire a certified ethical hacker to conduct routine audits on the firm, to simulate a cyberattack and highlight vulnerabilities.

So, those three things alone are important, but I have a few other things they could do, including onsite data storage and taking an inventory of digital assets. 

We know from the Capitol riot, right? If the offices never conducted a digital assets inventory, they wouldn’t know what was gone. If something happens with a physical breach or some sort of data breach, you need to know what has to be accounted for.

[You also need to] educate your employees, to promote a culture of cyber-hygiene and education. Make running through cybersecurity responses, protocols, and threats part of the culture of your firm. 

Any company that thinks they’re not a potential target for hackers, they’re fooling themselves.

ATL: Do you think it’s important for companies these days to have a dedicated data privacy counsel? Are you recommending that people create these positions?

Coleman: The short answer is yes, but that isn’t surprising coming from the executive director of the National Cyber Security Alliance. It’s a smart move to better protect data every day, all day. 

And you know, for larger firms it may not be a problem at all. They can do that at the drop of a hat and probably already have those positions. But I have spoken to small firms trying to make a margin like everyone else. And I’ve recognized that a chief privacy officer can serve multiple small firms and help them out. 

But the short answer? Absolutely. I totally support that goal.

ATL: California’s new law, the Consumer Privacy Rights Act, has instituted a standalone data-privacy regulator and California is often a trendsetter when it comes to laws. Do you think standalone regulators and more stringent privacy protections are the way of the future? Do you think this kind of thing is going to be nationwide before long?

Coleman: Absolutely, we’re going to see that. [Laws have been passed] in Washington, Michigan, and I think in Texas. So, California is leading the way and we’re seeing other states do it as well. 

[During the NCSA’s recent Data Privacy Day event] I spoke with Sen. Marsha Blackburn (R-Tennessee, a co-sponsor of federal data-privacy legislation), and we talked about this in terms of how it’s nearly impossible for businesses to traverse the different laws. I do think Congress at some point is going to step in or step up to say, wait a minute, maybe we should have a national act or legislation on this so businesses have one standard to meet and not 50 different standards.

I’m pleased the conversation is taking place and I’m very encouraged with the public-private collaboration on this. Now, certainly there are going to be some opposing views that the private sector and the government will have to deal with, but it’s a great change that the conversation is taking place.

ATL: What are the issues on everyone’s lips right now related to data privacy?

Coleman: Education. I think it’s very important that people understand exactly what privacy means and what information needs to be protected, but it’s also a generational thing, right? 

If you’re talking to millennials, or Gen Z or Gen X, these folks have different views on privacy. And we’ve seen that time and time again. 

We have to make sure folks understand what this conversation is about, because in order to make an informed decision you have to have the correct information. As I say, [data privacy] breaks down into three categories: products, processes, and the people in a particular case. I think we need to focus much more on the people part, on education and awareness. That’s certainly the biggest piece in my mind.

ATL: When you talk about the younger generation, are you referring to their willingness to be open with their personal information? The way they don’t even seem to think about it?

Coleman: Yes, and I’m a perfect example. When I go out, I generally turn off the tracking. You know, the mechanism [on a smartphone] that allows you to get better deals or get a suggestion for a good restaurant. 

My daughter, she enables it, because she wants her friends to know where she is and wants to get suggestions. And of course, we’ve had family discussions on being safe with it, on using it wisely. 

But we have different views on privacy. The younger you are, probably, the less likely you are to care about something of that nature. 

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Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.

In the wake of this past summer’s mass protests and demonstrations following the killing of George Floyd, law schools across the country were inspired to offer their students new ways to respond to calls for racial justice and deal with decades of systemic inequity. One of America’s most elite law schools is now doing something that no other top school has done before by creating a required course on racism and the law.

The University of Southern California Gould School of Law announced last month that a course entitled “Race, Racism and the Law” will be a graduation requirement for the class of 2024 and beyond. USC Gould is the first top 25 school to add a mandatory class like this to its curriculum.

Here’s an excerpt from the school’s press release about its new class:

“The Black Lives Matter protests as well as the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and many others all had an impact on our students and faculty. This moment requires that we ask about our obligations to the legal community, to society, and to the world writ large,” says Professor and Vice Dean Franita Tolson, who co-chaired the Academic Affairs subcommittee charged with developing the course. “The course will help students recognize that their obligation as lawyers, regardless of their specialty, is to understand that law does not always operate equally – that race is an enduring part of the legal profession and our everyday lives.” …

“It’s nice to be a trailblazer,” says Professor Ariela Gross, who also co-chaired the subcommittee. “A lot of schools are considering this. Colleagues at many other law schools have been contacting me because they are coming up with proposals. I won’t be surprised to see other schools making announcements about similar courses in the spring.”

Martina Fouquet, a member of the Black Law Students Association, served as student representative on the subcommittee, had this to say: “It is possible, due to the rigor of law school, to graduate without a core understanding of the social context informing why laws are the way they are. First and foremost, I hope this course helps students understand the historical context of race and the law … how a law that might seem race neutral can have an application that is racially skewed.”

USC Gould Law is taking an incredibly important step here by making its Race, Racism and the Law course mandatory. It ensures that all students at the school will learn the important lessons being taught, not just students who would normally choose to take the class as an elective. Hopefully more law schools will soon begin to make courses that teach these essential lessons a requirement.

USC Gould to offer unique required course focusing on race in legal system [USC Gould Law]
USC one of first schools to make racism course mandatory [National Jurist]

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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.

If you listen to the Thinking Like A Lawyer podcast every week (and why wouldn’t you?), you heard our recent discussion of Davis Polk’s “gift bonuses.” Instead of resting on their laurels as the Biglaw firm bonus champion of 2020, DPW went the extra mile and offered associates a selection of gifts or experiences of roughly $1,500 each.

It’s a great idea! Cash might always reign supreme, but big bonuses often disappear directly into student loan payments and can leave lawyers feeling a little empty. With gift packages — that most importantly do not trade off with the normal bonus — attorneys are forced to do a little something for themselves and that’s a big deal after a year that stretched employee wellness to the breaking point.

Anyway, on the show we asked Davis Polk insiders to let us see the full range of options available so we could offer our commentary and y’all delivered. So let’s start breaking down Davis Polk’s offerings.

Peloton… But For Your Wall:

JOE: This seems to be the hottest thing in sports right now, but without the problematic worried face woman. For me, this feels like having the Evil Queen’s mirror on your wall, but every time you ask who’s the fairest it responds, “not you, now drop and give me 20” but I might not be the ideal audience for exercise culture. This is a B+ for me — solid option but not everyone’s cup of tea.

KATHRYN: A- Nothing is going to be everyone’s “cup of tea” — that’s why there are 13 options! But not only is The Mirror trendy (and one with a relatively small footprint that’s appropriate for apartment living), it’s perfect for the COVID life. Like, even if gyms are open, do you want to go to one and wear a mask while working out? No? Hey, here’s a Mirror.

We Get It, You Think We’re Out Of Shape:

JOE: I’ll confess, I’d never heard of the Nike By You program, but apparently they’ll let you design your own shoes? After years of effort selling the world on its own designer shoes, it’s turning over the game to just anyone?

Indeed, Michael.

Still, I’m putting this package on the low end. I’m sure that’s all high end equipment, but it just doesn’t feel as luxurious as some of these other packages. This is a C.

KATHRYN: I’ll agree it doesn’t feel quite as generous, but in my grade inflationary way, I’ll give it a B. But I will also say that one person’s “work out gear” is another’s “loungewear” and upgrading my personal loungewear collection has been one of the few bright spots of 2020/21.

Bill It To Client Development:

JOE: I’d need a little bit more clarity on what constitutes a “memorable course” but could you imagine a golfhead getting a chance to go to, say, Pebble Beach or something? That’s got to be the ultimate trip for someone. So I’ll give it an A because for the right audience this is a dream come true making it a wonderful option.

KATHRYN: Ugh, I guess it might be someone’s dream, so A-. But I can think of many more sporting events I’d personally enjoy more. It seems like a nudge to tell associates, hey, this is also good to schmooze clients.

JOE: I don’t know. Golf is a reasonably popular activity beyond just schmoozing. Obviously, you and I would rather go to the Monaco Grand Prix or something, but people really worship these courses. Commercials call them “hallowed ground” which I think is more appropriate for a place like the Rose Bowl but I get it.

The TV You’ll Never Be Home To Watch:

JOE: My only quibble here is that I’d hope a Biglaw associate has already invested in a solid entertainment system. When I got my first Biglaw paycheck, I immediately purchased a high-end TV and speaker system. Frankly, the latter is a must get for newly affluent associates because while television technology continues to rapidly evolve, an elite set of speakers can last decades as long as you’re upgrading the receiver and keeping the cables in good shape. This is a B- because it’s nice, but I don’t know if it’s an option worth using your pick on.

KATHRYN: B+. It is nice, and working from home all the time probably made some folks realize that their seldom-used system was not up to par when used constantly. And even post-COVID working from home will still be a thing, so a worthwhile investment and pretty good timing on the upgrade.

Since Every Movie Theater Is Out Of Business Now:

JOE: I hated this one until I remembered that not every attorney lives in New York. A 120″ outdoor screen is pretty useless in a studio apartment in a luxury high-rise. But if you have a backyard this is a great gift. Just remember that the projector is useless until it gets legitimately dark outside. No amount of retail projector lumens will overcome even overcast sunlight. Honestly, this might be worth it for the popcorn popper alone. It fits one of my rules for a good gift — something the recipient likes but would never buy for themselves because they’d always talk themselves out of it. Going with a B here because it’s a C if you’re in the city but an A- if you’ve got space.

KATHRYN: Yes, the city mouse/country mouse dichotomy is real. But, Davis Polk is a ginormous firm and there are lots of other options, so A-.

Build Your Own Ribwich:

JOE: I’m not sure the value is here compared to some of the other packages. Depending on the size of that smoker, the equipment involved isn’t approaching the $1,500 value. St. Louis BBQ lessons from professionals is a big deal if that’s your thing, but I’ve always leaned toward Kansas City on this question. It’s good, but maybe buy this on your own and use the free gift elsewhere. Another B, I think.

KATHRYN: BBQ is an art, and lessons from a master sounds amazing. A-.

Obligatory Option For Foodies:

JOE: Le Creuset has gotten to the point that the Dutch Oven might be worth $1,500 alone. Still, I’m not sure about this. The pandemic is coming to an end allowing you to hit the town again, but for now ordering takeout from fine dining establishments seems like a waste. It’s not going to taste right because those restaurants really don’t make their food to travel as Defector’s Drew Magary pointed out recently. Still, this is an B+ because the true food nuts will love it but you’re probably better off with other options.

KATHRYN: At first I thought I was a grade fairy, but no, Joe is a classic tough grader. A. Yes, yes, the equipment is top notch, and no matter how much steam the vaccine rollout gains, there will be PLENTY of opportunities to use that $500 in takeout and sometime, not having to cook tastes DELICIOUS.

Happy Hour, But Classy:

JOE: But what if you only drink wine from boxes? Seriously though, I think this package fits into a weird zone. If you’re really a connoisseur, this is stuff you probably already have, and if you’re a wine noob there’s probably something else on the list you’d want more. Also, who doesn’t finish a bottle of wine when they open one? Do people really want half consumed wine? Won’t that end up drying out the cork eventually? So many questions. I’m going with a B, which could elevate to a B+ depending on the quality of the wine of the month selection.

KATHRYN: A+. MOAR WINE, plzzz.

Billing At 3 AM, But From Home:

JOE: Chalk this one up to “things I could have used last year.” True beanophiles would have cherished this during a year glued to their couches with nary a Starbucks in sight, but with the world opening up, I think they’re going to want to go out for coffee more. Maybe I’m wrong. I’m going C.

KATHRYN: B. It’s not Jot, but still nice.

Post-Zoom, You’ll Need Pants With That Jacket:

JOE: I’ve never enjoyed shopping and that’s why this is probably the number one package from my perspective. Lawyers tend not to be as stylish as they could be, and this gives an actual professional the authority to fix that. And if the associate is already stylish, it’s still $1,000 and someone to chat with while picking out new stuff. I think this is my 1, though I worry I’m being too practical and not really treating myself with this choice. This is an A for me.

KATHRYN: A+. My number one thing to do in the Post is go shopping, in person, and try on clothes, and not have to schlep to the post office when something looks amazing in theory, but awful on my body. To do it on the firm’s dime is just too perfect.

Does This Come With Vacation Days?:

JOE: My work bag used to be a TUMI and it was a fantastic bag. Coupled with $1,000 to travel and this is another contender for top package. Once the vaccine makes the world comfortable, people are going to want to hit the road and vacations go a lot further with a couple of nights pre-paid. Or, if you want to go nuts, one night in the presidential suite somewhere. For me, this is the number 2 option, but I could be persuaded to give it the top spot. Another A offering.

KATHRYN: A+. Everyone wants to travel again. $1K to throw towards the vacation you’ve been dreaming about for a year is a delightful thank you.

A River Runs Through It:

JOE: I’m not nearly outdoorsy enough to rate how valuable this package is. I think if I went rafting it would end up a lot like the time Bart joined the Junior Campers.

I’m going A here because this is basically the above Marriott travel package but for people who get a contact high from an REI.

KATHRYN: I am… not an outdoorsy gal — and I feel judged by people who are. B on principle.

Triple Black Diamond Is The Easy One, Right?:

JOE: The inimitable Slavoj Zizek described my feelings precisely when he said, “You climb a mountain and you slide down. Why not stay at the bottom and read a good book?” Except instead of “reading a book” put “hit the bar.” But I’m trying to be fair and if you’ve decided to embrace the wildly expensive world of skiing, a ticket to slopes “from Lake Tahoe to Switzerland to Japan” sounds pretty amazing. Again, this falls into that A offering for the people who really love this stuff.

KATHRYN: The existence of apres ski takes this from a purely athletic option to a fun trip. A.

Final Thoughts:

JOE: All right, I think if I were choosing I’d go with Nordstrom or the Marriott Travel Package. That said, if I enjoyed skiing or golf those would vault to the top spot.

KATHRYN: Travel, clothes, or wine. That’s my story and I’m sticking with it.

JOE: There’s really no wrong answer and another round of kudos to Davis Polk for injecting this concept into the Biglaw zeitgeist. Whatever you end up choosing, you’re in great shape. Or, you will be if you get the Mirror I guess.

If Above the Law’s Legal Technology Non-Event for Perplexed Lawyers takes place in a virtual conference center, think of the new Non-Eventcast as your main-stage panel.

To kick it all off, our panel of Legal Techxperts joins host Jared Correia to discuss practice management software — the backbone of a modern-day small firm or solo practice. 

Click here and scroll to hear the podcast now.

As our panelists — representing Clio, Filevine, and Matter365, respectively — are well aware, the goal is not to pitch, but to help our audience understand the benefits, options, and latest developments in the space.

Take a listen to ensure you’re up to speed on the latest tech offerings. You will have the opportunity to keep pace with your rivals — and even take part in (a reasonable level of) “fun.” 

In the latest episode of The Jabot podcast, I’m joined by Ifeoma “Iffy” Ibekwe, founder and principal attorney at Ibekwe Law. We chat about how she settled into an estate planning practice, and the turns her career has taken to get to this place. Iffy also offers advice for lawyers who struggle with finding the right practice area for them. We talk about how estate planning can embolden women, and why estate planning is an important tool for building generational wealth. Plus we discuss how Iffy balances her legal practice, being an entrepreneur, family life, and her creative side.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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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).

There is a concept in immigration law called a “crime involving moral turpitude.” In certain situations, this is the legal standard for whether somebody can be deported, regardless of whether they have a green card or would otherwise be eligible for relief from deportation. Given the stakes, you’d think that somebody would have come up with a clear standard for what exactly a “crime involving moral turpitude” is, but you would be wrong. The 9th Circuit refused to void it for vagueness back in 1957, and ever since then, courts have applied it using a SCOTUS-blessed test called the categorical approach that requires them to look carefully at the facts.

The Supreme Court threw this fact-based approach out the window on March 4, giving courts permission to just turn people down when there’s any sort of doubt. In Pereida v. Wilkinson, it held that when it’s not clear from the record whether a crime involved “moral turpitude” (the phrase would be funny if it didn’t ruin lives), immigrants don’t get to make their cases.

Defendant Clemente Avelino Pereida entered the United States without authorization from Mexico in the late 1990s; the federal government started trying to deport him in 2009. He applied for cancellation of removal, which is available to certain people whose deportation would be a hardship for a family member who is a U.S. citizen or green card holder. While that case was pending, Pereida committed the shocking, unforgivable crime of trying to get a job using a false Social Security card. Nebraska charged him with misdemeanor criminal impersonation and he pleaded no contest. According to SCOTUSBlog, he paid a $100 fine and served no jail time.

The government took advantage of Pereida’s conviction to argue that he was not eligible for cancellation of removal because he had committed a crime involving moral turpitude. That’s where the trouble came in. The Nebraska statute of conviction had four parts, and it wasn’t clear to the Board of Immigration Appeals and the 8th Circuit which he was convicted of violating. However they decided that Pereida had the burden of proving he was eligible for relief, and that he hadn’t carried it. The cert petition asked the Court whether that was correct.

Justice Gorsuch — the cuddliest Trump appointee, but a Trump appointee all the same — wrote for the majority that it was. That was based on the plain language of the INA, and I don’t have any issues with reading the law to say what it says. In fact, I urge any courts that are still dealing with Trump-era immigration policies to pay close attention to the text of the INA, since the Trump administration has stretched certain sections well beyond their breaking points.

However, Gorsuch went on to also reject Pereida’s secondary argument that the immigration court should have applied the “modified categorical approach” to interpret the Nebraska statute. This is a precedent that’s been reiterated by SCOTUS several times, which requires courts examining statutes of conviction to decide whether an immigrant can apply for removal based on the statute the immigrant was convicted of. Nonetheless, Gorsuch says courts have to look at the facts rather than the law, which nullifies a law-based categorical approach. Without this approach, fewer people will be eligible for cancellation of removal, which means fewer people will be able to even make their cases to stay in the U.S.

By the way, Gorsuch seems to be concerned that Pereida probably was convicted of a fraud-related crime. But who gives a shit? He applied for a job, using fake papers because that’s what he had to do to get a job. If this is what I, as a suburban white woman, am being protected from at the cost of destroying Pereira’s family, I do not want it. I also think any such concerns (which, admittedly, Gorsuch didn’t express; he’s just tainted by association with Trump) are fake AF. Women are killed by their husbands and boyfriends at alarming rates, but somehow, that never seems to matter when men’s right to post threatening “rap lyrics” is at stake.

This is going to be my last immigration column for ATL; I got a real job. If there’s one thought I want to leave you with, it’s this: keep paying attention. As this decision shows, everything is not magically fixed because Joe Biden is president. Immigration has been messed up for well over a century, and a lot of that is because racism and xenophobia are baked into the systems. Things are not going to change without someone putting in some effort, and that is our job as Americans.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.