Category: News Feeds

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

According to the most recent data collected by Law School Transparency, which T-14 law school has the highest underemployment score?

Hint: A startling 14.7 percent of recent graduates of this law school are “underutilizing their skills and credentials” and have not started a professional career, legal or otherwise.

See the answer on the next page.

The Fall bar exam wasn’t the complete nuclear disaster that the lead up to its administration certainly suggested. But while we judge Star Wars films by, “well, it could’ve been worse” it’s not how a profession should judge its admissions process. Frantic examinees worried about uploading documents. Human biology forced people to quit the exam or persevere under horrific conditions. Black and brown folks were routinely told that they weren’t real people by the facial recognition software. California ended up flagging a third of the examinees for cheating because someone fidgeted while sitting for hours on end. That “most” people made it through is not an acceptable answer.

Though I guess for people that consistently misdefine “minimum competency” the way they do, we shouldn’t expect standards to be the strong suit.

So imagine my surprise when, after all that happened in the Fall, I learned that the UBE jurisdictions are subjecting applicants to 200 MBEs, 6 essays, and 2 MPTs for the February exam. In other words, they are making February applicants perform TWICE the work.

So… more people unable to complete the exam because they have to use the bathroom mid-test. More people flagged as cheaters because they shift in their seat during the doubly long test session. More technical concerns as sluggish servers deal with uploading two times the material. Of every problem identified during the last go around, extending the test only exacerbates the issues.

And for what purpose? Since October, bar examiners have stressed that the shorter exam administered in the Fall was more than sufficient as a licensing measure. So I guess they decided that they were lying? If that’s true, should we have reservations about the people who passed it last year?

The correct answer is no. They knew the test was more than sufficient then and they know it would be more than sufficient now. It’s mostly theater anyway. Every credible inquiry suggests building a radically different skills test or — even better — reforming the law school curriculum to guarantee every graduate is license ready upon earning a diploma.

How is this fair to the people that either opted out of October amidst the craziness or got dinged due to the test’s ill-conceived algorithms? As it stands, it just seems like petty revenge upon any applicant who dared to doubt that the October exam would work. Which certainly tracks for a group of people who openly mused about using the character and fitness process to retaliate against critics.

Doubtless, the NCBE and state examiners will find succor among the crowd of boneheads who will point out that the February exam is simply returning to the test format that past applicants had to deal with. And that’s true, except past examinees didn’t have to take the test online with a slapped-together testing system that flags blinking too many times over the course of 90 minutes as cheating. If the conditions of the test aren’t the same then there’s no justification to go back to the same old substance. The test was shortened to work under online conditions for a reason and for all the problems encountered in October, not a single one suggested “this would probably work better if it were longer.”

On the other hand, for those of us criticizing the bar exam process and advocating for better licensing procedures, this move could hardly make the argument against this exam more clearly. The content really doesn’t matter. It could be half as long or twice as long and make no difference to the question of competence. All that really matters to examiners is that their own existence is self-justified. Everyone else is just a pawn in that process.

Earlier: Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
If You’re Menstruating Or Lactating During The Bar Exam You’re Screwed
The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness
Online Bar Exams Rely On Facial Recognition Tech And Guess What? It’s Still Racist!
California Bar Exam Flagged A THIRD Of Applicants As Cheating

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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.

Usually, we find our most specious legal filings in the pro se ranks, but 2021 (nèe 2020) loves proving these are unusual times. Paul Davis, formerly of Goosehead Insurance before a little thing like an attempted coup abruptly ended his career there (Davis claims he was “peacefully protesting” and never entered the Capitol), is showing that yes, attorneys can get caught up in wild conspiracy theories. Maybe Lin Wood and Sidney Powell really are trailblazers.

Davis, along with Kellye SoRelle — a lawyer and failed candidate for the Texas House of Representatives — filed a complaint yesterday in federal court in the Western District of Texas. The complaint has a lot of outlandish claims and seems destined to be thrown out of court. Filed on behalf of Latinos for Trump, Blacks for Trump, as well as a series of individual plaintiffs, the complaint claims it “is not a 2020 presidential election fraud lawsuit” (indeed, it throws its legal predecessors in crazy election lawsuits under the bus, saying in a footnote, “This is not a Sidney Powell lawsuit. This is not a Rudy Giuliani lawsuit. This is not a Lin Wood lawsuit. This is not a Team Trump lawsuit. This is not a Republican lawsuit. This is not a Democrat lawsuit.”) but still seeks to have a federal judge throw out the results of the election.

The complaint alleges that defendants — every single member of the 117th Congress, every state governor and secretary of state, and Mark Zuckerberg, because… reasons — made changes to election laws in advance of the 2020 election in violation of the Help America Vote Act (HAVA) which resulted in civil rights violations. It asks that all actions of the new Congress — including certification of Joe Biden’s win and the second impeachment of Donald Trump — be invalidated.

Adding to its pie-in-the-sky wishlist, the complaint also asks the court to bar the Department of Justice, the Federal Bureau of Investigation, or any other federal agency from taking either Davis or SoRelle into custody for their actions on January 6th “absent a showing for good cause by clear and convincing evidence that said counsel committed some overt and intentional act of violence that directly resulting in substantial injury to the person of another.” As if that’s the legal standard for arrests. It’s cute how they’re just pushing ahead like unlawful entry and trespass aren’t a thing you can get arrested for.

Anyway, the full complaint is a wild ride, and available in full below.

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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).

Never doubt the power of investor excitement. Or assume that the only value of a patent litigation — especially for a publicly traded company monetizing its patents — is the amount of damages at play. Those two lessons were reinforced by a wild day of trading this past Friday for a legendary hardware company that has become very dependent on its huge patent portfolio for revenue generation. The company? None other than BlackBerry, the maker of electronic companions for a generation of lawyers. At one point Friday, the company’s market cap was up over $1 billion, before fading over the course of the day to close up 8%, or the equivalent of (only) a few hundred million added to the company’s value. In addition to the price swing, over 150 million shares traded hands, capping off a frenzied round of trading right before the weekend.

What set off the fireworks? At first it was rumors about a global patent settlement between BlackBerry and Facebook — rumors that were quickly followed by confirmation that a settlement had been reached. As expected, terms of the settlement were announced as confidential, but that did not stop investors from driving up BlackBerry’s share price, perhaps under the assumption that Facebook had agreed to pay a significant amount of money in exchange for patent peace. The declining enthusiasm for the news, at least as reflected in the fade in BlackBerry’s share price as the day wore on, was most likely a reflection of sophisticated investors recognizing that optimistic assumptions about how much Facebook may have agreed to pay were at best speculative. Yes, perhaps a payment by Facebook was agreed to, but that fact (or the amount) will likely not be confirmed until BlackBerry’s next quarterly investor updates at the earliest. Still, Friday’s action in BlackBerry’s share price is a potent reminder of the potential value generation for publicly traded companies embarking on a patent monetization campaign.

While the terms of the settlement may have been confidential, it is worthwhile to consider what a settlement between BlackBerry and Facebook may have looked like. It is even more worthwhile to evaluate how the moves and countermoves (some of which I chronicled on these pages back in 2018) each side employed over the years of litigation between the parties may have contributed to the result reached this past week. While we can speculate that the settlement may have included a cross-license, as well as a global license to BlackBerry’s portfolio that would preclude future assertions against FaceBook, it is hard to really know what the actual settlement terms are — no matter how interested investors are in knowing the details. What we do know is that both sides were able to get to a deal after years of litigation.

From a timing perspective, it is not surprising that the settlement comes on the heels of a negative ruling for BlackBerry in the Federal Circuit. As reported in TheRecorder, BlackBerry’s attempt to overturn unfavorable Alice rulings in its cases against Facebook and Snap appeared to go well as the “Federal Circuit sounded… as if it might revive” those patents. But despite any optimism that may have arisen from the oral argument, the Federal Circuit panel quickly issued a Rule 36 affirmance of the ineligibility determinations. With that fresh setback in hand, it certainly appears that BlackBerry was motivated to call a halt to its campaign against Facebook before more damage was done to the reputation of its patent portfolio.

Despite the setbacks it faced against Facebook, it would be unfair to call BlackBerry’s campaign a total failure. For one, it did get to the point where it could announce a settlement, with a resulting rise in company value as a consequence. It also showed that it could go toe-to-toe with a very skilled patent defendant — one with the resources and will to execute a textbook activist patent defense strategy, consisting of a countersuit, IPRs, and early validity challenges to the BlackBerry patents asserted against it. In short, BlackBerry managed to hang on and live to fight another day, perhaps against a less inclined-to-fight-back opponent.

Assuming that the settlement did not result in Facebook making a substantial payment to BlackBerry, then it is likely that the money spent on Facebook in its own defense paled in comparison to the financial demands BlackBerry may have made at the outset of the case. Which would make the defense costs, no matter how substantial, money well-spent — both in terms of the financial savings relative to BlackBerry’s demands as well as with respect to the deterrent effect against prospective patent monetization hopefuls. The latter objective should not be underestimated, since if Facebook was able to repel the assault of a (former) technology giant armed with a reputation for innovation and many thousands of patents, what hope does a less-pedigreed patent owner have against the company? Yes, patent owners can and do win against the most-dogged of defendants on occasion. But it remains a risky endeavor, especially against a company like Facebook.

Ultimately, in addition to serving as a reminder that even a confidential settlement can bring dividends to a patent owner, this case also reminds us that even the most heated patent disputes can and do settle at some point. The balance of power between plaintiff and defendant may shift over time, as court determinations and market factors make an impact. But settlement is always an option, and skilled litigators do well by their clients by keeping that in mind, while also looking to drive the best bargain available once a settlement window opens. If anything, BlackBerry friending Facebook drives that lesson home.

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.

I think any lawyer would have to tell you there’s nothing in the Constitution that permits it. There’s nothing in the Constitution that prohibits it. The plain language of the Constitution doesn’t limit who we can pardon. Do I think there’s justification for it because of the atmosphere we are in? Practical justification? Absolutely.

— Rudy Giuliani, who currently serves as Donald Trump’s personal attorney, commenting on his client’s ability to pardon himself. Other Trump advisers are wary of a self-pardon because it could open him to civil suits, as the pardon could be seen as an admission of guilt, but Giuliani doesn’t think it’s that big of a deal. “I mean his legal life’s gonna be complicated no matter what,” Giuliani said in an interview with ABC News. “Maybe because I’m more of a criminal lawyer than a civil lawyer, I’d much rather have my civil life complicated than my criminal life.”

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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.

Who among us hasn’t gone insurrectioning after a Facebook message from a random “very cute guy” and wound up facing federal charges? Youthful indiscretion, right?

“I always see all these MAGA rallies, so I said, ‘Heck yeah, let’s go,’” recently arrested rioter Jenna Ryan, 50, told NBC’s Cynthia McFadden. “I mean, who wouldn’t go and get on a private jet?”

And so it was that Texas realtor/life coach/MAGA talkshow host boarded a plane at Denton Municipal Airport headed for D.C. on January 5 and surged into the Capitol with thousands of rioters on January 6 in an attempt to overturn the election results.

In a strategy guaranteed to delight her future counsel, Ryan documented the day extensively on social media, and then went on to give interviews to multiple media outlets describing the conduct for which she was charged.

No doubt the FBI is also pleased that Ryan skipped the face mask in favor of a distinctive hat and scarf.

“We’re gonna go down and storm the capitol. They’re down there right now and that’s why we came and so that’s what we are going to do. So wish me luck,” she said to her hotel bathroom mirror and all of Facebook. But Ryan was quick to disabuse McFadden of the wrongheaded notion that this was an expression of premeditated intent to break the law. “If you look up the term ‘storm,’ you can storm in the kitchen. You can storm in and say, ‘No more,’” she said. “I’m not storming in to kill people. What I meant, life or death, is if someone kills me, I will stand for my truth, even if someone kills me,” she said.

Before entering the Capitol building, she tweeted a photo of herself next to a broken window, saying “Window at The capital [sic]. And if the news doesn’t stop lying about us we’re going to come after their studios next…” And by “come after” she probably meant ” come after is like succeed, you know, like, the news studios will go first, and we’ll come and say stuff on social media after, lol obvs.”

Later she livestreamed the mob entering the building, saying “we are going to fucking go in here. Life or death, it doesn’t matter. Here we go,” before turning the camera on herself to remind the audience “y’all know who to hire for your realtor. Jenna Ryan for your realtor.” Always be closing!

Despite the federal charges, Ryan insists she did nothing wrong, telling McFadden “I, personally, feel innocent in everything that I have done. I feel like I was perfectly within my rights. I feel like the police officers were ushering people into the Capitol. There were thousands of people there. I have no guilt in my heart.”

And while she feels bad about the five people who were killed that day, she knows that the real victim is … Jenna Ryan.

“I do not feel that I did anything wrong. In fact I feel that I did something noble and I’m proud of being there. I have no shame to be there. I feel very persecuted and I feel very misjudged,” she told another interviewer.

“I think we all deserve a pardon. I’m facing a prison sentence. I think I do not deserve that and from what I understand, every person is going to be arrested that was there, so I think everyone deserves a pardon, so I would ask the President of the United States to give me a pardon,” she told yet another news outlet. (Pity her poor lawyer.)

The Justice Department, however, does not appear to be anticipating presidential intervention. It charged her with one count of disorderly conduct and one count of unlawfully entering a restricted building. And, while Ryan complained about the FBI “raiding my house for a misdemeanor,” acting U.S. Attorney Michael Sherwin promises that supplemental charges will be forthcoming for many of the indicted rioters.

And she didn’t even get the guy!

“He was adorable,” Ryan told McFadden. “And there was another adorable girl there, too, and they ended up getting together, darn it.”

Ah, well. Time to take some advice from Jenna Ryan, life coach.

On the bright side, looks like Ryan will be getting another trip to DC real soon! Don’t forget your past … Transmute it.

Charging Documents
Texas real estate agent on Capitol riot: ‘I’m glad I was there’ [NBC]

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

Marijuana and hemp present compelling business opportunities for your clients. But navigating through the haze of regulations and business models can be confusing – and risky. 

Legal Guide to the Business of Marijuana: Cannabis, Hemp and CBD Regulation, from PLI Press, advises attorneys interested in practicing in this area. Co-authors James T. O’Reilly, Professor of Public Health Policy at the College of Medicine of the University of Cincinnati and author of leading references on food and drug law, and Edgar J. Asebey, a founding partner of Keller Asebey Life Science Law and a life sciences attorney with over 20 years of experience, spoke about the treatise. 

What makes the Legal Guide to the Business of Marijuana stand out? 

Edgar Asebey: While the state regulations that govern marijuana and the federal regulations that govern hemp and its derivatives such as CBD are relatively new, the agencies that have crafted and enforce these regulations are not. Our professional experiences give Professor O’Reilly and I a unique perspective.

Jim has been practicing law for over forty years and has been quoted as an expert by the U.S. Supreme Court. My work in natural products (i.e., plants, microbes, and fungi) based therapeutics began in 1992 at the National Cancer Institute at the National Institutes of Health, where I worked with the natural products scientists in charge of discovering new therapeutics.

Today, clients are grappling with some of the same issues at the nexus of science, plant-derived therapeutics and regulations that we were thinking about decades ago. This insight allows us to share valuable context with readers.

Jim O’Reilly: The book also stands out for its structure. We break free of the rigidity of classical law texts, offering practical insights on how regulatory controls can be satisfied with minimal red tape. The appendix lists the segments of state law that readers will actually need.

What are some issues that lawyers starting out in this area might overlook? 

Jim O’Reilly: Criminal activity involving marijuana as seen on TV can catch your attention, but these days it is a distraction from the lawful cannabis business. The focus must be on the actual constraints on commercial activity; in fact, lawfully serving the needs of cannabis consumers is a commendable business initiative. 

Edgar Asebey: The biggest issue that I see is the ongoing misunderstanding of how hemp and its derivatives are regulated. The framework for regulating these products already exists, as can be seen in the annual Warning Letter sent to hemp and CBD companies by both the Federal Trade Commission and Food and Drug Administration. It is great to advocate for new, better rules specifically tailored to hemp and its derivatives. But if a client places their hemp or CBD product into the stream of commerce, that product will be subject to FDA, FTC, and relevant state laws. If you are advising clients, it is essential you understand these regulations.

What do you advise small law firms and individual practitioners who are interested in developing a cannabis practice? 

Edgar Asebey: As regulations continue to evolve, practitioners must become familiar with the Food, Drug and Cosmetics Act as well as the Federal Trade Commission Act. Particularly with regard to hemp/CBD, too many inexperienced attorneys believe that regulation of these products will look like cannabis regulation – i.e., at the state level. CBD products are, de facto, regulated like dietary supplements and OTC drugs (albeit, unapproved). Understanding the FDA and FTC regulatory frameworks will allow attorneys to better advise their clients.

Marijuana has been called “the clear winner” of the 2020 election, with voters in several states approving measures related to possession and cultivation. What trends are you watching at the state and federal levels? 

Edgar Asebey: With regard to hemp and CBD, the FDA has yet to publish a much-anticipated guidance that will address some gray areas such as THC limits, toxicity testing requirements, and claims that can be made for products containing hemp-derived CBD. Some states have filled this void by adopting their own rules regarding hemp and CBD-containing products, including foods. Obviously, these will be superseded by federal legislation when it occurs. Finally, both the states and the federal government will have to grapple with the regulation of newly popularized hemp derivatives. 

Jim O’Reilly: The change in attitudes toward marijuana is remarkable, but for one major hurdle, simply follow the money. The 50-year-old Controlled Substances Act of 1970 blocks federally insured banks from handling the legitimate business needs of lawful cannabis dealers. While culturally, Americans have become more accepting, a political fear of being challenged as “pro-drugs” has held lawmakers back from ending the extremist “Schedule 1” view of cannabis. We will continue to monitor these issues and expect to cover big changes in further editions for years to come.

Bill Barr’s tenure as Attorney General of the United States ended mid-December and it’s unlikely to be remembered in a positive light, seeing the laundry list of crap he pulled and lies he told in furtherance of his political agenda. But in the wake of his resignation, we are learning there’s at least something that’s over the line for him.

That bridge that’s just too far for Barr is the legal theory trotted out in the days and weeks after the 2020 election that there was some sort of massive voter fraud and that Donald Trump was the rightful winner of the election. As reported by Axios, in a December 10th meeting between Donald Trump, Bill Barr and others things came to a head as the president’s hopes for a second term were pinned on a wild legal theory that had no basis in fact — something Barr went on the record with to AP reporter, Michael Balsamo shortly before the fateful meeting:

“These things [election fraud claims] aren’t panning out,” Barr told the president, standing beside his chief of staff Will Levi. “The stuff that these people are filling your ear with just isn’t true.” Barr explained that if Trump wanted to contest the election results, the president’s internal campaign lawyers would have to do it.

The Justice Department, he continued, had looked at the major fraud allegations that Trump’s lawyers had leveled. “It’s just bullshit,” Barr told the president. [White House Counsel Pat] Cipollone backed up Barr by saying the DOJ was investigating these claims.

Trump pointed at the TV and asked if Barr had been watching the hearing. Barr said he hadn’t. “Maybe you should,” the president said. Barr reiterated that the Justice Department was not ignoring the allegations, but that Trump’s outside lawyers were doing a terrible job.

“I’m a pretty informed legal observer and I can’t fucking figure out what the theory is here,” he added. “It’s just scattershot. It’s all over the hill and gone.”

“Maybe,” Trump said. “Maybe.”

And that break between Trump and Barr would signal the end of their working relationship. Barr was out of the position by Christmas.

In what is likely an attempt to retcon his role in enabling a dangerous president, Barr had his first interview since the January 6th insurrection. Of the lie that the 2020 was fraudulent, he said that “was the thing that precipitated the riots on the Hill.” No shit, Sherlock.

But no matter how he tries to distance himself from Trump now, we’ll remember what he did along the way.

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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 National Defense Authorization Act of 2021 weighs in at 1,400 pages, many of them dealing with matters well outside of the ostensible reason for the law, which is to lavish some three-quarters of a trillion dollars on the military-industrial complex. Since one of these was not punishing big tech companies for making President Trump angry, and because another directed the Pentagon to eventually stop honoring the president’s fellow traitors to their country, he petulantly and impotently vetoed the bill, which veto was more or less instantly overridden by Congress because spending more on the military than the next 10 most profligate countries in the world is the last bipartisan issue in America.

Black lawyers remain underrepresented in the American legal system. As law firms and professional organizations talk generally about promoting diversity, the figures show that the population of Black lawyers continues to hover around 5 percent despite Black folks making up closer to 20 percent of the population.

Not to discount the symbolic value of all that talk. When the institutions that hold the power in this field make diversity a priority, it moves the needle. In any event, it’s far better than the era when firms just ignored it completely. But moving from words to action is where entities tend to trip up.

One place where firms — and everyone, for that matter — could go to amplify the impact of their diversity commitment is the Community Fund for Black Bar Applicants, a non-profit organization that targets a small but significant hurdle in the process of expanding Black participation in the legal community.

Bar application and prep fees get bigger every year and amount to a cruel entry barrier to people who’ve already had to immerse themselves in debt to get their law degree and now have one last big outlay before being able to practice their livelihood. The bar application hurdle may not increase the number of Black law school graduates but it can be the difference between making that jump from graduate to practicing attorney.

As long as we continue to insist on the bar exam, it’s exceedingly difficult to guarantee admission trying to tackle the test solo without the help of a prep course. Every time an applicant tries to wing it without a prep course it increases the risk of a law school graduate stuck in limbo and unable to practice for months at a time.

Dr. Octavia Carson founded the fund and secured a matching pledge from Scholarship Junkies for the next $3,000 the organization receives in tax-deductible donations. The group plans to give $500 to applicants to defray bar admission costs (they’re also looking for donations in terms of books, tutoring, housing, etc.).

There are important, big ticket efforts to promote racial justice out there. Just yesterday we learned about the new Marshall-Motley Scholars program to help build the roster of civil rights attorneys by sponsoring 10 incoming law students, but when it comes to promoting diversity, focused programs like the Community Fund for Black Bar Applicants have an important role to play in boosting a greater number of future lawyers. There really can’t be too many different angles when it comes to addressing this problem.

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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.