Category: News Feeds

New York attorneys aren’t in their offices right now, but vaccine distribution is underway and it’s not a stretch to think folks will start creeping back into their offices, if only informally, to find some peace and quiet from a year of working at home.

Over at 565 Fifth Avenue, this could result in a few uncomfortable elevator rides. The Executive Chamber, the technical term for Cuomo and several top administration officials, has hired Elkan Abramowitz of Morvillo Abramowitz to deal with both the ongoing nursing home data scandal (involving Cuomo and multiple Executive Chamber officials) and the mounting sexual harassment claims against the governor.

Meanwhile, Anne Clark, one of the investigators hired by the AG’s office to probe the sexual harassment claims, has an office in 565 Fifth Avenue. One tipster even suggested that Clark’s firm may be subtenants of Morvillo. In any event, as long as they’re using the same elevator bank, there will be some run-ins.

I once had a matter where another co-defendant was represented by our office subtenant. Their testimony on a few details deviated from each other meaning that while we all felt aligned, every time either of us got extra cagey in the office it became very weird. Being on opposite sides of the table would be so much worse.

They should all just run crazy fire drills at random times to freak each other out. Just send a bunch of people in on the weekend and don’t explain why.

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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.

It’s getting harder and harder for hedge fund managers to find an edge of any kind, black or otherwise. I mean, sure, there are still the SPACs, but so many advantages of years past have gone by the wayside, victims of better and faster computers (and better and faster access to better and faster computers), better regulatory and prosecutorial strategies, and, frankly, their own success, at least at raising money—leading to too much money chasing too little opportunity etc. The expert networks are on watch, the direct lines to directors are dangerous, the favor from well-loved vendors hard to come by—even a little chat on the fairway is susceptible to suspicion. For heaven’s sake, you can hardly even sell short anymore.

The legal profession is set up to be relatively territorial because attorneys are licensed to practice law in certain states and cannot ordinarily offer services in locations where they are not licensed. However, even among lawyers who are admitted to practice law in a given state, lawyers can be relatively territorial about out-of-town attorneys who come to their areas to provide services. Although we can kind of understand lawyers wishing to protect local legal work, being hospitable to out-of-town lawyers can be a profitable move in many circumstances.

I first became aware of the territorial nature of the legal profession when I was a “road lawyer” spending 70 nights a year in hotels working on mass torts matters earlier in my career. In this role, I had to travel all over the states in which I practice law — sometimes to locations throughout the East Coast. Many of the local attorneys I met were extremely nice to me, and I had some amazing dinners and evenings out with local counsel I met along the way. This is especially true when I traveled to more rural areas, and the lawyers applied their country hospitality to our professional relationship.

However, some of the lawyers did not appreciate out-of-town attorneys coming into their areas to practice law. Some attorneys would lord over the fact that they knew special procedures in the area in which they practiced and had relationships with judges and other attorneys in the area. Since the terminology of practice varies somewhat from jurisdiction to jurisdiction, some attorneys would jump on other lawyers who did not use the correct verbiage to describe a situation. Again, most lawyers welcomed out-of-town lawyers, but there was sometimes friction with lawyers who swooped into an area to handle a matter.

This phenomenon is not restricted merely to litigation either. I have completed many real estate closings over the years, mostly in the area around my home and office. On occasion, I conducted closings in locations that were not in my exact geographic area. Of courses, procedures are different in every jurisdiction when it comes to closings, the filing process for documents related to closings, and some of the responsibilities that are related to closings.

Some local counsel expressed frustration at even the slightest sign of unfamiliarity with local issues. This extended to bank attorneys, title professionals, and other parties involved in the closing process. Of course, most of the time people were courteous and were more than happy to help an out-of-town lawyer, but in other instances, there was friction because an out-of-town attorney was handling a matter.

Judges and court officers can also sometimes be hostile to out-of-town lawyers who come into their venues in order to argue matters. Indeed, there is a trope in many movies and television shows about the “big city lawyer” who needs to argue matters in a country court, and the judges do not appreciate the tactics of such attorneys. Perhaps judges are a little hostile to outside lawyers because of a desire to protect a local legal community, which is understandable.

There have been a few instances in my career in which judges seemed overtly hostile to out-of-town lawyers. One time in my career, I was in a court on a case that involved numerous defendants. One of the defendants’ national counsel flew up from far away to argue a matter. The judge made a joke that it was odd that the lawyer had to make the trek when there were numerous lawyers in the area who could have handled the work.

Another time, I was at a conference with a bunch of lawyers, and a judge lamented the fact that out-of-town lawyers wished to stay in chain hotels farther away from the courthouse during trials than at smaller hotels closer to town, which could have supported local businesses. I do not think this judge understood that the lawyers were probably just trying to score travel points they could use on vacations with their families. I have also seen judges in New York City be chummier with attorneys who live in the borough where the court is located and who they otherwise see more often than lawyers who work elsewhere.

It is unfortunate that lawyers are so hostile to out-of-town attorneys because being hospitable to such counsel can help expand one’s practice. Indeed, there are always times when it is not worth the drive or flight to perform legal work outside of one’s usual area of specialization, and in such instances, work can be delegated to local counsel. By building relationships, local counsel can also have trusted lawyers available to help clients who may need an attorney in another area.

All told, lawyers, like other professionals, can be somewhat territorial at times because lawyers may feel threatened by out-of-town attorneys taking work away from local counsel. However, being hospitable to out-of-town lawyers can help attorneys expand their practices.

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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.

* A lawsuit has been filed in Alaska claiming that 21 poultry companies ran an illicit cartel. Maybe the chickens are coming home to roost… [Insurance Journal]

* Twitter has sued the Texas Attorney General, claiming the AG started investigating Twitter after the platform banned Donald Trump. [NBC News]

* An Ohio lawyer has been disbarred for stealing millions from clients and using the money on cosmetic surgeries, gambling, and other expenses. [Journal-News]

* Prosecutors allege that an attorney in the Jussie Smollett criminal case has a conflict of interest. [Chicago Tribune]

* A lawyer, who was arrested over allegedly breaching the Capitol on January 6th, seemingly asked the judge during a bail hearing whether he could have a drink with his friends after his release. Alcohol should be the least of his issues. [Law & Crime]

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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.

The Whitest Law Schools: An actually useful ranking.

Unpaid Jobs Are A Societal Ill: Oh, look! There’s one at the DOJ.

Biglaw Partner To Investigate Cuomo: This doesn’t look good for the governor.

Biglaw Firm Tries, Fails To Celebrate International Women’s Day: Social media is hard, y’all.

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

Of the 50 Biglaw firms included in Above the Law’s Law Firm Transparency Directory, powered by Leopard Solutions, which five firms are tied with the lowest promotion rate?

Hint: Promotion rate is defined as the percentage of eligible members of an associate class promoted to partnership in the most recent year, and at these firms, it’s a dismal 1 percent.

See the answer on the next page.

Billion-dollar verdicts in patent cases are rare. Two-billion-dollar verdicts — like the one secured by a Fortress-backed entity called VLSI against Intel in the Western District of Texas — are rarer still. When they happen, however, they call for immediate commentary. Even though there is apparently no record of a $1 billion-plus verdict getting sustained on appeal in toto or otherwise ending up in a settlement for less than the awarded verdict. Still, as I wrote in a column about the $1 billion-plus Caltech v. Apple/Broadcom verdict last February, a billion-dollar verdict in a patent case is a patent event that will “really command broad media attention.” Indeed, the VLSI/Intel verdict was quickly reported out by a variety of media outlets, from the usual IP-focused media to Bloomberg to the Washington Post.

All the attention on the value of patents — at least in Texas courtrooms — is typically hailed as a welcome change in the pro-patent community from the mainstream media’s allegedly antipatent bias. Indeed, huge verdicts are perhaps the best opportunity for the pro-patent crowd to celebrate. As I wrote when discussing the Caltech verdict, big verdicts “give a boost to the entire patent ecosystem, if only because they remind everyone that certain patents can actually be considered very valuable, at least by a jury.” And there is no doubt that the latest verdict will also give a form of boost to the patent ecosystem, at least for the next year and a half or so until the appeal is decided (assuming there is not some kind of expedited appeal process.) At minimum, enthusiasm for getting to trial against well-heeled defendants will be high.

In the short term, my sense is that there are at least three immediate takeaways that arise out of the awarding of this megaverdict. First, I think this verdict will embolden nonpracticing entities that hold patents from pedigreed sources to take more cases to trial if their settlement demands are not met. Second, litigation funders interested in investing in patent cases will benefit from this verdict in a variety of ways. Third, patentee demand for — and defendant desperation to avoid — moving forward in the Western District of Texas will reach feverish levels. Let’s take each point in turn.

To start, this verdict shows that juries are prepared to award big verdicts even when the current patent holder is a nonpracticing entity. Moreover, they are prepared to do so even when the defense does a good job of painting the asserted patents as “zombie patents” held by a nonpracticing entity, as reporting from the trial by observers confirmed that Intel convincingly argued. In my view, the main counterbalance to that argument is that the jury will often convince themselves that the patents must be valuable if the nonpracticing entity purchased them in the first place, especially if those patents come from a pedigreed source such as another large technology company. Add in that the patentee was obviously prepared to engage in a long and expensive litigation process, as well as the huge damages demand being made based on the patents — and it all contributes to an underlying sense by the jury that these must be unusually valuable assets. Combating that is a hard thing for a defendant to do, as Intel’s game, but unavailing, attempt demonstrates.

Next, even if you don’t consider Fortress a typical litigation funder, there is no doubt that litigation funders benefit in a number of ways from these $1-billion-plus headline verdicts. For one, large verdicts and the possibility of a corresponding windfall return help attract investor interest into parking money with litigation funders. Likewise, demand for litigation funding to take cases to trial would also be expected to rise, giving funders a broader and deeper pool of investment opportunities to diligence.

Moreover, big verdicts like this one encourage parties that have cases already funded to persevere toward trial rather than settle. Which means that they use more of the funder’s capital and thereby increase the funder’s potential return. Conversely, defendants in funded cases — and it is now more than ever super-important for defendants to determine as EARLY AS POSSIBLE in a case whether the patentee has access to the resources to get to trial — come under increased pressure to settle, which will allow funders to get some of their funded cases resolved earlier. On all fronts, this verdict should be a boon for funders.

Finally, it is already well-known that the Western District of Texas is already a hotbed for venue-related litigation, with plaintiffs desperate to stay and defendants equally desperate to say goodbye for greener pastures. As I couched it a few weeks ago, the Federal Circuit has already called for Judge Albright to make disposition of transfer motions a “top priority.” There is no doubt the VLSI/Intel verdict will increase scrutiny on his handling of transfer motions, as all sides now have headline-grabbing proof of the potential consequences for a patent defendant getting in front of a West Texas jury. At the same time, it is also clear that those consequences will continue driving filing of patent cases in that court, with even more frenzied attempts by defendants to avoid having those cases stay there. Just another example of how the billions boost will play out in patent cases going forward.

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.

What information is “material” under securities law involves a very large gray area. Whether or not a publicly-listed company is going to make or miss earnings estimates, however, seems pretty clearly in the black: It is, after all, the kind of thing investors look out for on a quarterly basis, and one that usually has some impact on the price of a company’s stock. And, five years ago, AT&T was very much about to miss, and for the third time in a row. That the company considered this material seems clear from the fact that it felt the need to do something to prevent it. That something was not find an extra $76 million in revenue and quick, but to call all of the analysts covering AT&T and to tell them the not-yet-public information that their earnings estimates were too damned high. A clearer example of the selective dissemination of material nonpublic information that Regulation FD very specifically prohibits one can hardly imagine, unless, apparently, you are one of the analysts getting that information, or are anyone at AT&T not working in the compliance department.

Judge F. William Cullins, chief judge for the Fourteenth Judicial District in Kansas, describes himself as “salty.” In a recent 37-page disciplinary opinion, the Supreme Court of Kansas determined that it went a bit further than that.

Like, a lot further than that.

And yet, the final punishment — a one-year suspension — is reducible to a mere 60 days if the judge drafts an acceptable proposal for a workplace training program. It’s an accommodation that seems fair when you’re on page 1 of the per curiam opinion… much less so by the time you reach page 10. And downright bonkers by the time you’re at page 36.

The opinion, filed a couple weeks ago, is quite the journey. Keith Lee did a rundown on this opinion this morning and it’s safe to say he was a little flabbergasted.

For better or worse, the legal profession lends itself to some uncouth talk. But there’s a difference between being told to “find me a f**king case for this” in the ordinary course of business and injecting that into a formal performance review. It may not be acceptable to bully an employee with profanity as they work, but informality can seep into day-to-day work. That simply has no place in a formal human resources talk. As the court’s account continues, it seems the judge doubled down on his disregard for the review process:

Respondent did not give Mr. Carter an opportunity to address Mr. Carter’s concerns about the evaluation. When Mr. Carter tried to speak, Respondent told him, ‘Keep your fucking mouth shut. You don’t have the right to defend yourself here. Don’t say another fucking word. Go see Joni Pratt. Get the fuck out of my sight and shut the fucking door on your way out.’ Mr. Carter left the room.

To this whole exchange, the judge says he was “too stern” but said that he was “gruff” because the clerk was also “gruff.” You know, the way clerks are always “gruff” with their judges. He also contends that the use of profanity isn’t all that bad, which the opinion notes misses the point — it’s not that he uses profanity, it’s that he uses it in wildly inappropriate contexts.

It will shock you not at all that the aforementioned Joni Pratt, the former chief clerk, also has issues with the Judge Cullins, who apparently berated her over basic building renovations, and during a subsequent conversation told her, “If you think I’m going to fucking apologize to you, I’m not.” Pratt went so far as to bring another judge with her to resign because she was so concerned about the reaction Cullins might have.

But does Judge Cullins have a problem with women? Who knows… but there’s this:

Former Attorney General Curt Schneider, now a lawyer practicing in Coffeyville, heard Respondent use the terms ‘”bitch”, “cunt”, et cetera’ in referring to females.

The testimony of any attorney on this point should be significant — and there is testimony on this exact point from others — but someone who served as the attorney general elevates this to full blown red flag level. In response, Cullins argued that more witnesses hadn’t heard him use that language, which is a curious defense. He also argued that whatever he may have said doesn’t constitute bias in the course of his judicial duties. A minority of the court bought that, but not enough to salvage Cullins’s case.

Schneider’s assistant had her own encounter with Judge Cullins:

Ms. Rooks memorialized her conversation with Respondent as follows: ‘When I called Judge Cullins to set the hearing and told him the names of the parties, he said, “Oh fuck. Them again?” Then he asked if Mr. Schneider represents “the dude or the chick.” When I told him Mr. Schneider represents [client], he said, “Oh, fuck . . . really? She’s fucking crazy.” He then went on to say, “I used to think the guy was ok, but the longer this goes on, I’m starting to think he may be fucking crazy too.”‘ Ms. Rooks’ memorandum was admitted without objection.

All right… this isn’t appropriate but it’s totally understandable. There are a lot of litigants that are legitimately crazy and I’m impressed that judges don’t lose their temper over those people more often. That’s not to say either of these litigants were out of line, but I’m not sure I’d ding a judge for an off-the-cuff outburst like this. Though as it turns out, this seems to be more of a pattern than an outburst.

Oh, and he referred to a Black man in his courtroom as “boy.” Judge Cullins claims that he meant it colloquially in the same way he’d refer to himself as a “Chautauqua County boy” which seems an awfully convenient excuse, but even if true evinces a complete lack of respect for the solemnity of the occasion of presiding over a criminal case. And the transcript isn’t helping the judge:

THE COURT: “Can I assume you’re not even a Kansas boy?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “That’s right. We pay for this community college and they don’t even have Kansas boys play their football or their baseball. They invite these people from out of state.” Where are you from?”
THE DEFENDANT: “North Carolina.”
THE COURT: “From North Carolina to—can I take a wild guess? Did you have a felony record before ICC gave you a scholarship?”
THE DEFENDANT: “No, sir.”
THE COURT: “Juvenile trouble?”
THE DEFENDANT: (Shaking head.)
THE COURT: “Really?
THE DEFENDANT: (Shaking head.)
THE COURT: “You just started out this big?”

So we’ve got assuming a Black person couldn’t be from Kansas, assuming that he’s an athlete, and assuming he must have a criminal record to throw into the mix with using a word that’s long been used as a slur. That’s a context that the state supreme court agreed constitutes a “reasonable perception of bias.”

But how many opportunities does a judge need to get before Kansas is willing to put some teeth into discipline? A one-year suspension already seems light. Being a judge is a privilege and not a right. Removing Cullins from the bench seems justified based on the cumulative weight of the findings — he can return to private practice and continue to make a profitable livelihood. But the fact that the one-year cooling off period is paired with a reprieve if he commits to workplace training courses that people can and do attend and ignore all the time? That smacks of a failure to consider the depth of the temperament problems here.

Cullins may well benefit from training sessions. After he’s successfully completed those, perhaps he could return to being a judge who would make the state proud. But that should be a precondition for serving as a judge again, not an option to slice off the bulk of his suspension. It’s cliché to cite the title of Thomas Frank’s fantastic book, but…

What’s the matter with Kansas?

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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.

We want to be mindful of and supportive of the associates for whom return to the office may be difficult this year. What happens beyond 2021 is anybody’s guess in terms of how the pandemic shapes the way we work.

— Tom Cerabino, co-managing partner of Willkie Farr, commenting on the fact that his firm will not require any of its attorneys to return to the office for in-person work in 2021. Wilson Sonsini will not be requiring any of its attorneys to return to the office this year, either. “The reality is our teams have adapted very well to working virtually and remotely,” managing partner Doug Clark said. “[W]e as a firm will be much more flex with alternative work arrangements than we ever imagined we’d be in the past.” Both Willkie and Wilson Sonsini lawyers who want to go back to the office may do so, as long as they follow local regulations and health precautions.

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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.