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The Trump administration is definitively over now, and those involved are looking at a post-government service life. For many of the lawyers of the Trump admin, they’re looking to distance themselves from that experience. Biglaw might be part of those plans, if they can manage it. But another quick way to refresh the ol’ resume and come out smelling fresh and new is a quick stint in legal academia.

As the gold standard of elite schools, Harvard is a prime target for those looking for their next chapter — and remember Sean Spicer’s post-Trump career included not only a stop on Dancing With The Stars but also time at Harvard’s Kennedy School. But law school students and alumni are asking Harvard Law School to refuse to participate in the rehabilitation of reputations for those in the Trump administration:

Harvard Law School must refuse to serve as a tool to launder the reputations of those who crafted and enabled the Trump administration’s anti-democratic, anti-immigrant, racist, and morally reprehensible abuses. We call on Harvard to commit that it will not hire or affiliate with any senior official in the Trump administration or Congressional leader who was complicit in the administration’s immoral actions.

Harvard Law School must make a clear statement that people who condone and participate in anti-democratic, racist, xenophobic, and immoral practices have no home at Harvard.

Advocacy group People’s Parity Project spoke with several signatories of the petition about why it is so important for HLS to take a stand:

“At the start of the year, Dean Manning and the law school stated a commitment to ‘understanding and addressing the moral and legal crises confronting this nation.’ As we usher in a new presidential administration, the police presence around the Capitol building is just one stark reminder of the damage done by senior Trump officials and their supporters in Congress,” said Emma Leibowitz, a 1L at HLS. “To give Harvard’s seal of approval to anyone who attempted to subvert the democratic process, enact xenophobic and racist policies, and attack fundamental rights enshrined in our Constitution would demonstrate the insincerity of that commitment.”

Some pointed to the long-term damage of the January 6th insurrection and how that’d rub off on HLS:

“Harvard Law School has a choice. It can set an example in preventing future attacks on our democracy and creating a safe academic environment for people of all backgrounds,” says Beth Feldstein, a 3L at HLS. “Or it can abdicate its role and allow these officials back into polite legal society without consequence. If it does, it will be a blemish on the school’s history for generations to come.”

While the family separation policy was paramount for others:

“The Trump administration undermined the democratic values and moral ideals that Harvard Law claims to hold as foundational,” said Kurt Walters, a 3L at HLS. “If Harvard calls itself an institution committed to justice, dignity, and respect, it must prevent the architects of policies that illegally tore immigrant families apart, rolled back the clock on civil rights, and demolished protections for workers from using the Harvard name to wipe themselves clean of the harm they wrought.”

Harvard Law School has yet to issue a statement responding to the petition, but they also haven’t offered their name to a former member of the Trump administration.

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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).

The coronavirus crisis brought unprecedented changes to the legal profession, with some firms instituting salary cuts and others opting for furloughs and even layoffs. But at the end of the day, the biggest and most successful of Biglaw firms came out ahead, posting record revenues, the world’s financial difficulties be damned.

Which top-ranked Am Law 100 firm recently announced its seventh consecutive year of financial growth?

That would be Greenberg Traurig, a firm that’s currently ranked at No. 14, having brought in $1,641,790,000 gross revenue in 2019. According to a press release, in 2020, the firm brought in revenue of $1.73 billion, representing a 5.48% increase compared to 2019.

Richard A. Rosenbaum, Greenberg Traurig’s Executive Chairman, had this to say of the firm’s financial success in 2020:

2020 was a year of unprecedented human challenge, but was also a year of unprecedented strength for Greenberg Traurig: financially, achieving both record revenues and record profits, with a profit-per-partner increase in excess of 6%; culturally, becoming closer than ever; and qualitatively, elevating our excellence and the consistency of our service worldwide.

Congratulations to Greenberg Traurig for coming out ahead during the pandemic. We wonder when other Biglaw firms will begin to humbly brag about their success in these trying times.

Greenberg Traurig Reports 7th Consecutive Year of Record Revenue, Announces Elevations [Greenberg Traurig]
Greenberg Traurig Posts $1.73 Billion in Revenue for 2020 [Bloomberg Law]

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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.

Last November, George Gascón was elected as the new Los Angeles County district attorney. He campaigned on criminal justice reform on the basis that the status quo does not reduce crime and instead disproportionately harms the Hispanic and Black populations. If elected, he promised to address this by reducing sentences, eliminating cash bail, and increasing the use of mental health services as an alternative to incarceration.

As soon as he took office, he issued a number of special directives instructing deputy district attorneys on how to exercise prosecutorial discretion on whether to charge crimes, charging juveniles, requesting bail, or adding enhancements to criminal charges and sentencing. In sum, almost all his directives favor defendants, just as he promised during his campaign. I am certain that every criminal defense attorney in the county will memorize these directives by heart just in case the prosecutor needs a little reminder.

Some deputy DAs didn’t like Gascón’s directives, and the Deputy District Attorneys Union sued to block implementation. The union argued that following Gascón’s directives to decline from prosecuting certain crimes would violate state laws that makes prosecution mandatory. Last Monday, a judge granted a preliminary injunction in favor of the union and blocked the implementation of most of Gascón’s directives. Gascón said that he would appeal but will respect the ruling in the meantime.

The new DA is in a tough spot. He wants to make changes to the criminal justice system as he promised to do if elected. He does not have the power to change the penal code. But he has a big say in who can be prosecuted criminally by using prosecutorial discretion. The problem is that enough of his staff did not like his policies and were able to get their labor union to file suit. It’s very possible that some judges are opposed to them as well.

If the deputy DAs do not like the policies of their new boss, shouldn’t they work elsewhere? They could, but perhaps they like being prosecutors and don’t want to change careers or switch to the defense side. Leaving their government jobs might also mean losing PSLF status and thus jeopardize their student loan forgiveness plans. And they are unionized, so firing them will not be easy.

But also, Gascón’s opponents may have good reasons for their positions. Police and prosecutors might be less motivated to spend time and resources investigating a complex violent felony case if the suspect is likely to get at most a few years in home confinement plus a mandatory visit to a social worker. Some might feel emboldened to commit crimes thinking that they will get a slap on the wrist.

I think it’s important to know that Gascón has experience and street cred, unlike the average Twitter superposter. He started his career as a police officer in Los Angeles. He moved up the ranks and became assistant chief of the LAPD. Gascón assumed command of the LAPD training unit in April 2000 at the height of the infamous Rampart scandal where 70 police officers were investigated for corruption and misconduct. He later became the police chief in Mesa, Arizona, before becoming San Francisco’s police chief. He was later appointed to be the district attorney for San Francisco when Vice President Kamala Harris was elected California’s attorney general. This does not mean one has to agree with Gascón’s proposals because of his experience. But his claims and proposed solutions could be credible since they come at least partially from knowing the inner workings of the police culture and the prosecutor’s office instead of from solely listening to podcast rants.

What Gascón should have done was speak to his deputies at length about his proposals before implementing them. His special directives were issued soon after he took office, which implies that these decisions were made unilaterally or with little input from his deputies. Most of them probably would not have changed their minds, but it could have resulted in modest changes that could have avoided the lawsuit.

In the final analysis, Gascón — as the DA — is accountable to the voters, not to his staff. He should be allowed to use prosecutorial discretion if it is more likely to result in fairness and justice as opposed to strictly following the law. Prosecutors are not supposed to convict as many people as possible. However, applying prosecutorial discretion on a broad basis in essence means that certain criminal code sections will not be enforced at all, which I think is a policy decision a district attorney should not be making. Since the use of prosecutorial discretion usually results in dismissals or reduced punishment, it should be used sparingly depending on the circumstances.

Gascón can accomplish many of goals he outlined. But to do that, he will have to work with his staff instead of unilaterally writing special directives that have the effect of negating laws passed by the legislature.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

While there are some jurisdictions throwing caution to the wind during the pandemic and telling applicants that toughening up and not dying of respiratory failure builds professional character, most are sticking with the online version for the time being. Was the online exam a horrid mess? Absolutely. But it didn’t kill anybody and clearing that extraordinarily low bar is shockingly what passes for “good” these days.

But it shouldn’t be. It’s better than an in-person exam, and has the potential to be a perfectly viable substitute, but the national experience with the October exam — racial bias, massive cheating flags, applicants urinating on themselves or being forced to quite because of mensuration, a woman sat still through LABOR to avoid getting dinged by the software — managed to get most people through a truncated test, so bar examiners decided to try it again.

In fact, they decided to double down! Despite acute problems stemming from proctoring algorithms that flagged applicants for blinking excessively during a shortened version of the bar exam, jurisdictions decided to tackle the full exam this time around. Because the bar examiners had to take the full test (unless you’re the people writing the bar exam), so these kids have to do the same thing. Except it’s not the same thing. Just as I didn’t take the bar exam walking uphill both ways in the snow — it was July, but you get the point — I also didn’t take it under buggy surveillance during a global pandemic. This isn’t even in the same ballpark of testing experience.

But the full test it will be. Sit longer without bathroom breaks staring at the screen without moving… or else! And remember that disability accommodations provide for more time so this extends their forced panopticonic imprisonment even longer still.

New York Assemblymember Jo Anne Simon introduced legislation to allow the bar exam to be administered open book if the exam is remote. It’s not an entirely novel concept. Indiana was forced by circumstances to offer an open book exam when its online provider failed and the state was forced to give the exam over email.

This would all be obviated by administering the bar exam as an open book exam. Lawyers practice law by reference to texts, not by memory. Not only would this reflect the reality of law practice but would eliminate the need for the intrusive remote monitoring software, including facial recognition of test takers, during the upcoming February 2021 bar exam.

Let’s all say it again: “the practice of law is an open book exam.”

The resistance to open book exams exposes the critical lie at the heart of the bar exam industry. We can’t have open book exams, because too many people might all get sufficiently similar “right” answers. And this presents problems because despite billing itself as test of minimum competency, the test actually scales itself to ensure a certain percentage of people fail, thus justifying the need for the test in the first place (to keep out the people who it decided to fail).

An open book test is a more realistic simulation of the practice of law; it would yield — assuming no post hoc thumbs on the scale — results that better gauge the achievement of minimum competency, and would avoid almost all of the pitfalls of online exams.

If you’re in New York, get out there and advocate for this common sense bill. If you’re in another jurisdiction, send this bill to your own legislators and ask them to follow suit. The harm to the public is not in “lawyers who know how to research,” it’s too many who try to invoke “normal scrutiny” from memory.

Test lawyers like you want them to practice. Test lawyers like human beings. Test lawyers open book.

Earlier: California Bar Exam Flagged A THIRD Of Applicants As Cheating
Online Bar Exams Rely On Facial Recognition Tech And Guess What? It’s Still Racist!
Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness
Indiana Junks Online Bar Exam Format, Will Run Test Over Email
ExamSoft Tells Senators That Facial Recognition Problems Are Everyone’s Fault But Theirs
The Nation’s Top Defender Of The Bar Exam Knows Exactly How To Value Diploma Privilege Systems

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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.

Paul Singer certainly had a lot of fun with Argentina a few years ago. But while Elliott Associates made a not particularly small, albeit painfully patient, fortune by combining the lack of a collective action clause in the country’s defaulted debt with the pari passu boilerplate no one had previously bothered to read, let alone take seriously, every sovereign nation on earth learned an important lesson, which was to make goddamned sure to include the former in all future issuance, unless you are, for some reason, Jamaica, so as to be able to impose your restructuring terms on any hedge fund who might want to hold out which 99.9% of your other creditors thirst eagerly for however many cents on the dollar you’re willing to pay out.

* A woman is apparently considering a lawsuit against the maker of Gorilla Glue after she purportedly sustained damage from using the product in her hair. Not sure the claims will “stick”… [Fox News]

* Alan Dershowitz added his own voice to the chorus of commentators who believe Donald Trump’s impeachment lawyers did not do a good job on the first day of the impeachment trial. [Yahoo News]

* An animal rights lawyer is accused of hiring a hitman to kill her ex-husband and his girlfriend. [New York Daily News]

* The Senate has set a hearing date to advance the nomination of Merrick Garland to be Attorney General of the United States. [Hill]

* The union that represents performers who dress up as Disney characters is facing some legal challenges. It would be interesting to see those union members walk a picket line… [ABC News]

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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.

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

According to a new Law360 survey of partner compensation, what percentage of respondents said they expect a compensation bump of 20+ percent by moving to a new firm?

Hint: Only 11 percent said they expected a decrease in compensation by lateraling.

See the answer on the next page.

Nothing says 2021 patent litigation like a good venue dispute. As I have pointed out on these pages numerous times, including in a December column on the Google/Sonos patent wars, “venue is a critical component of patent litigation, from pre-suit seeking of litigation funding to post-filing motion practice.” For good reason, as a patent owner’s likelihood of success — either from settlement or in terms of getting to trial — can differ dramatically depending on where the case is heard. From scheduling to summary judgment odds to likelihood of transfer, it is well-known that different districts approach patent cases very differently. It is also established that the most attractive current district for patent owners is the Western District of Texas, where the Honorable Alan Albright has instituted some plaintiff-friendly measures in patent cases. Perhaps more importantly, by filing cases in the Waco Division of the WDTX, plaintiffs can ensure that Judge Albright will handle their case, an advantage not found in other jurisdictions, especially in those that randomly assign cases using the electronic version of the old SDNY wheel.

One of the key advantages for patent owners in Albright’s court has been his willingness to defer decision on transfer motions. Since sophisticated patent defendants nearly always look to transfer cases — especially out of Texas — to hometown districts, Albright’s refusal to allow such transfer motions to derail progress of the cases before him puts significant pressure on defendants. For one, settlement might start looking more attractive if a defendant faces not only claim construction proceedings (as is typical early on in WDTX cases) but maybe even discovery as well. Not that Albright is the inventor of this approach to handling transfer motions, as his colleagues in the Eastern District of Texas have long been known to take a similar slow-walk approach on the issue. Add in that Texas courts have shown a general unwillingness to transfer cases, unless absolutely forced to, and it is easy to understand why patentees continue to view Texas as a preferred forum for their case filings.

In a recent twist, however, Albright’s practice of refusing to make decisions on pending transfer motions a “top priority” came under withering assault from the Federal Circuit. The underlying procedural facts are straightforward. Netlist, a seasoned patent plaintiff, filed a lawsuit against Korean-semiconductor giant SK hynix in March of last year. In May, SK hynix moved to transfer the case from the WDTX to the Central District of California. Despite SK hynix’s efforts to have the case stayed pending resolution of its motion to transfer, it saw itself barreling rapidly toward a March 2021 Markman hearing. So it filed a petition for mandamus in the Federal Circuit, which was addressed in a February 2 order. An order which excoriated the district court for its “egregious delay and blatant disregard for precedent” by allowing SK hynix’s transfer motion to linger “unnecessarily on the docket while the district court required the parties to proceed ahead with the merits.” As relief, the Federal Circuit ordered the district court to “stay all proceedings concerning the substantive issues in the case until such time that it has issued a ruling on the transfer motion capable of providing meaningful appellate review of the reasons for its decision.”

Because the district court had already set a hearing on the motion to transfer before the Federal Circuit’s order, a decision on the merits of SK hynix’s motion was not long in coming. The day after receiving the Federal Circuit’s order, Albright issued a 17-page decision denying SK hynix’s motion to transfer in its entirety. First, the court rejected SK hynix’s argument on the first-to-file rule compelling transfer to California (where prior cases involving patents from the same family as those asserted in Texas were filed by Netlist), since the patents at issue were related, but not identical to, those that had been previously asserted. Moreover, the earlier California actions in question had been stayed pending IPR decisions, with no Markman or trial dates set, in contrast to the substantive progress towards decision on the merits that had already taken place on Albright’s watch. Likewise, the court refused to transfer the case for convenience purposes, crediting the local interest in resolving disputes and the quicker time to resolution by having the case stay in Texas. Finally, the court rejected SK hynix’s request to at least transfer the case from Waco to Austin, since the Waco courthouse remains open while Austin’s is closed due to COVID-19.

In addition to denying SK hynix’s transfer motion, Albright tightened the vise by accelerating the claim construction schedule — and by setting a July 6 trial date. In response, we can assume that SK hynix will ask for mandamus review of Albright’s decision on the transfer motion, following the lead of companies like Apple, which won a hotly contested mandamus motion of its own on transfer back in November. The battle lines are clear. The Federal Circuit has indicated a concern for fair treatment of defendants in the WDTX, while Albright continues to push for the expeditious handling of patent cases on the merits. We can expect that defendants will continue to push to get out of Texas at every opportunity. For now, however, Texas is holding ’em whenever it can.

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.

Pop Warner, the popular brand known for its involvement with football competitions for 5- to 16-year-olds, is beginning to get very aggressive with enforcing its intellectual property rights. In the past couple of weeks, Pop Warner Little Scholars, Inc. and Pop Warner Authentic, Inc. have fired off a couple of trademark infringement lawsuits, one against Hanesbrands, Inc. and the other naming BSN Sport, LLC as the defendant.

The case against Hanesbrands, Inc. is pending in the U.S. District Court for the Central District of California and takes the position that the defendant, through its subsidiary brand Champion, has been offering merchandise using the Pop Warner word mark without a valid license in place. Hanesbrands, Inc. is also accused of unlawfully using the word mark to advertise football uniforms and for improper search engine optimization by including Pop Warner in the title of its paid advertisements on Google.

The plaintiffs claim that Hanesbrands, Inc.’s products are substantially similar in style and substance to those sold and licensed by the plaintiffs and that this is clear misappropriation of plaintiffs’ “brand of academic and athletic excellence.”

The case against BSN Sport, LLC is pending in the same federal district court but is based on a claim that BSN continued to use rights that it once had, beyond the term of an expired agreement. BSN Sport was once a licensee of the Pop Warner brand but, according to the complaint, the rights afforded to BSN in the licensing agreement expired on December 31, 2016. However, BSN’s website, as recently as the end of December 2020, was offering merchandise using Pop Warner’s word and design marks.

The biggest question in both cases will likely revolve around whether the use by each defendant is a trademark use or merely describing the products for sale. If Hanesbrands, Inc. was actively placing the Pop Warner marks on the clothing that it manufactures and sells, without consent, then a consumer may be likely to falsely believe an association or endorsement with the Pop Warner brand. Alternatively, if it, or BSN Sport, is merely describing uniforms intended for use with Pop Warner events, and the consumer is not likely to be confused as to Pop Warner’s association, then there may be an appropriate defense on such grounds.

For instance, the exemplar attached by the plaintiffs in the BSN Sports complaint does clearly indicate that the uniforms are by a separate company. That said, the same exemplar demonstrates that BSN Sports is advertising that Pop Warner has partnered with BSN Sports to serve as the official distributor of Pop Warner football uniforms, which appears to be a false advertisement if, in fact, their official relationship ended at the close of 2016. Either way, each company has a federal lawsuit that it must now defend against based on use of another brand’s registered trademarks without consent.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.