Category: News Feeds

More than 50 college football players have opted out of the Fall 2020 season. Some of those players will choose to return to their respective athletic programs in 2021 while others will hire agents and begin preparations for the 2021 NFL Draft.

Notable players who have decided to opt out of the Fall 2020 season include Georgia quarterback Jamie Newman, Virginia Tech defensive back Caleb Farley, Penn State linebacker Micah Parsons, and LSU wide receiver Ja’Marr Chase. The aforesaid individuals, other than Newman, have all already retained agents and will more than likely rely on their representatives to cover their training costs, provide a monthly stipend and offer up a handsome lump sum of cash, referred to as a “marketing advance,” that is technically supposed to be recovered by the agents over time from the marketing revenue that the players are able to generate from off-field endeavors.

Recruiting and representing these high-profile players is an expensive effort for agencies even when global pandemics are not present. This year, with the coronavirus pandemic in play and a growing number of players opting out in August and September, the price to compete for top talent has gone up for sports agents, mainly because the monthly stipend and training cost coverage are being delivered at a much earlier date.

Football insider Neil Stratton suggested that those players projected to be selected among the top 20 picks of the 2021 NFL Draft are likely to command $7,000 to $8,000 per month in the form of a stipend, a separate marketing guarantee that ranges from $150,000 to $300,000, and $30,000 to $40,000 in training expenses, which typically includes a car rental as well as room and board. These are all out-of-pocket costs that the sports agent will incur prior to ever receiving any money from the represented players.

The estimated costs obviously scale down as the players are projected to be selected later in the 2021 NFL Draft. Stratton predicted stipends of roughly $5,000 per month for players pegged at the 21st to 50th slots, a bit less than $4,000 per month for those likely to be drafted at the end of the second round through the third round, and then $1,500 to $2,000 for those who are predicted to be off the board by at least the end of the fifth round. Players selected in these areas will also be seeking marketing guarantees, but there is a big drop off in amounts they should be reasonably able to command as the projections get worse.

The one category of costs that remains rather static for any of the opt outs suggested to be drafted before the end of the fifth round of the 2021 NFL Draft is related to training. Stratton said that it is unlikely that an agent will be able to successfully convince any of these players that they deserve less than full cover for the amount of their training at the facility of their choice, which ultimately will end up running at least $30,000 throughout the duration of the experience.

The little-known fact is that all of these pre-Draft expenses, but for the marketing guarantee, are typically not recoverable by agents, and agents are known to often neglect requiring the marketing guarantee to be reimbursed so long as the players remain signed to the parties’ Standard Representation Agreement (SRA).

If an agent brings a dispute against a player for reimbursement of these expenses, which only occurs when a player leaves the agent (a somewhat common practice), then the agent will have the burden to prove entitlement to reimbursement. The general rule is that, if a player pays the agent the agent’s commission on the NFL team deal negotiated by the agent, then the agent is not entitled to recapturing out-of-pocket costs, including those training costs that the player may have contractually agreed to reimburse in the case that the player terminates the SRA. The justification for this precedent is that it would be tantamount to a double payment that does not comport with notions of justice and equity. A rare exception to the general rule is when there are unusual or extenuating circumstances (such as the representation of an undrafted player and/or a relatively new agent involved in the transaction), and the precedent established within the NFL Players Association arbitration system is controlling on that issue as well.

The vast majority (if not all) of the college football players opting out and selecting agents will be drafted, and drafted quite high. The agents who sign these players are extremely unlikely to be classified as inexperienced. As such, it is much more likely than not that, as long as the players pay their agents the commissions they will be entitled to for negotiating their forthcoming rookie deals (assuming the players do not switch agents prior to such negotiations), these agents will never receive a reimbursement for the training costs and stipends they lay out for these players leading up to the 2021 NFL Draft. Chalk it up to being the cost of doing business in a cutthroat industry.

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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.

If you were a hedge fund manager facing serious allegations of sexual assault, you might think you’d have more important things to do than pontificating on matter macroeconomic to a journalist. Making plans for a decade in prison, perhaps, or ensuring that your deified chickens do not want from your absence. Then again, you probably also thought that Crispin Odey couldn’t do anything to make himself even more unlikeable.

On both counts, you’d be wrong.

“The gap between the rich and the poor has reached an inflection point. The feeling that state schools are victimised by the marking procedure for the academic results, the feeling that coloured people are victimised, and I could go on closer to home,” he said using a term that both the Merriam Webster Dictionary and Oxford Dictionary describe as dated and offensive.

* A judge has ruled that Kanye West will not appear on the presidential ballot in Virginia. Maybe Kanye had his attention on West Virginia anyways… [Hill]

* A former doctor has been convicted of attempted murder for purportedly trying to kill a lawyer who opposed the doctor in two lawsuits. [ABA Journal]

* A Loyola University law student is accused of torching his New Orleans apartment after a heated dispute with her landlord. [Times-Picuyane]

* A disbarred New York lawyer has been charged for allegedly stealing money meant for 9/11 first responders. [New York Law Journal]

* A New Jersey lawyer has been charged with fraudulently obtaining $9 million in COVID-19 relief money and using the funds to buy a mansion and other luxury items. [New Jersey Law Journal]

* The top lawyer for an online retailer has pleaded guilty to stealing around $6 million from his company and used the money to fund his lavish lifestyle. Lots of lawyers behaving badly in the Morning Docket today! [New York Daily 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.

So it seems we’ve got another leaker or two within the walls of Treasury Department, and they’ve got some juicy scoops that President Trump, Steve Mnuchin & co. would prefer never saw the light of day.

The Financial Crimes Enforcement Network (FinCEN) is aware that various media outlets intend to publish a series of articles based on unlawfully disclosed Suspicious Activity Reports (SARs), as well as other sensitive government documents, from several years ago. As FinCEN has stated previously, the unauthorized disclosure of SARs is a crime that can impact the national security of the United States, compromise law enforcement investigations, and threaten the safety and security of the institutions and individuals who file such reports. FinCEN has referred this matter to the U.S. Department of Justice and the U.S. Department of the Treasury’s Office of Inspector General.

Launching today is a company formed to provide cybersecurity, e-discovery, managed review and information governance services to commercial and government organizations, and leading it is the lawyer who formerly served as director of information governance at the White House.

Called Empire Technologies Risk Management Group, the company says its lawyers and technologists have more than 100 years of collective experience in cybersecurity and information governance, with professional staff who have formerly served the Department of Defense, the Federal Trade Commission, the White House, law firms and Fortune 500 companies.

Kenya Dixon

The company’s general counsel and chief operating officer, Kenya Dixon, served until June as director of information governance in the White House. She was formerly at the Federal Trade Commission, where she was assistant director of the Division of Litigation Technology & Analysis.

She was recently among the finalists in voting for the Stellar Women in E-Discovery award, the winner of which will be named by e-discovery company Relativity during its Relativity Fest conference slated for Sept. 21-23.

The company is based in Washington, D.C., and says its plans to soon open additional offices in Chicago and New York.

I was not able to speak with anyone from the company prior to this morning’s announcement. Its LinkedIn page lists no employees other than Dixon and its website also provides no further information about company executives.

A spokesperson told my by email that ETRM Group is a holding company for multiple companies in the data and legal industries, with an overarching cybersecurity focus. It is privately owned and has financial backing from private investors.

The spokesperson said that the company has multiple executives, many of whom are industry executives and some of whom are silent partners. The company’s board of executives consists of executives from the entities rolling up under the ETRM Group Company. Those acquisitions will be announced over the next six months, as will be other strategic partnerships.

Focus on Cybersecurity

In a statement provided by the company, Dixon said:

“The legal marketplace is facing an unprecedented number of cyberattacks and breaches because the data security industry has focused only on secure networking – not a secure working environment. At ETRM Group, we believe that cybersecurity is the foundation of every successful legal process or technology – whether it’s eDiscovery, managed review or adapting to new standards like a remote workforce.”

The company’s website says that the customers it serves are corporations, law firms and government agencies.

The services it provides include:

• Risk management and fraud investigations.
• Cyber security, including development of cybersecurity protocols and information technology governance, design and monitoring of network defense systems, incident response and containment, and remediation.
• Discovery services, including discovery management, data hosting, digital forensics, managed review and paper discovery.

Although the company is officially announcing its launch today, it appears to have soft-launched in May and been operating since then.

Organizations are facing increasingly complex and international threats — from trade-secret exfiltration from countries like China in furtherance of economic espionage and academic advantages, to criminal gangs intent on installing malware on networks to extract hefty ransoms. While the exploits themselves are not new, the pace, the breadth, and the incentives are enhanced, creating heightened concern at the highest corporate and governmental levels. With trade secrets, valuable IP, reputation, and shareholder value on the line, what are best-in-class security teams doing to protect themselves against advanced threat actors?

Know And Protect Your ‘Crown Jewels’

Identifying the ‘crown jewels’ of an organization is often a reasonable first step in understanding how best to protect these treasures, especially for enterprises with mature security teams leveraging threat intelligence, red team, threat hunting, trust and safety, and incident response capabilities. Key customer lists, intellectual property descriptions, business strategy documents, board materials, and network access lists form the basis of corporate value. Understanding where these jewels exist and how they are being protected is critical in protecting them, according to Nisos co-founder Landon Winkelvoss, who worked within the intelligence community fending off nation-state actors.

A flat network where an adversary has natural access or can move laterally to pick up jewel after jewel creates an absolute windfall for the intruder. Reverse this game of cyber ‘pick-up-sticks’ by segmenting critical areas of the network and using creative, customized, and cost-effective monitoring solutions so that intruders are limited in their ability to gain access to and proceed through the corporate bounty.

Develop An “Open-Door” Security Culture

A culture of security awareness is a healthy ecosystem where employees feel empowered to come to a security team or legal department with concerns that a heist is underway. According to the Federal Bureau of Investigation, organizations that ward off intellectual property theft the best do so through cultural and systematic controls which include the following measures:

• Educate and regularly train employees on security or other protocols.
• Ensure that proprietary information is adequately, if not robustly, protected.
• Use appropriate screening processes to select new employees.
• Provide nonthreatening, convenient ways for employees to report suspicions.

Insider Threat Program Manager for Tesla, Charles Finfrock, believes that the highest return on investment for an organization comes from transforming a workforce into a ‘sensor network’ through rigorous training and building rapport so the workforce is comfortable bringing unusual activity to the security team. This culture of heightened awareness and collaboration yielded extraordinarily high dividends for Tesla this summer in uncovering a Russian crime gang’s plot to infiltrate the company’s network to install ransomware via a USB drive. The hero in this incident was a company employee who turned down the $1 million lure and instead reported the event to the security team resulting in the would-be attacker being arrested by the FBI.

According to Finfrock, an effective insider threat program is not so much about having a complex network monitoring solution to ‘boil the ocean’ and find the needle in the haystack as cultivating an ethos of trust and transparency within the workforce.

Indicators Of Compromise

An employee who appears disgruntled, works odd hours, has unexplained absences, and unreported foreign travel may be an insider threat, according to the FBI. Any combination of these may point to a spy in your corporate ranks, and bears investigation. Additional indicators of insider threats include the following:

• Changes in work hours
• Changes in computer asset usage
• Excessively large downloads
• Usage of log clearing software/methods
• Increase in visits to file share or intranet sites
• Installation of high-risk software
• Spikes in inbound/outbound email traffic volume
• Frequent external/personal recipients on emails
• Attachments sent to suspicious recipients
• Removable media alerts
• Modification to remote file share folders/file accesses
• Bursts in printing on weekends and holidays
• Notice of resignation or termination
• Declining performance reviews
• Disciplinary action
• Increase in visits to job search sites
• Increase in outbound email to competitors
• Social media posts
• Financial duress
• Privileged user activity
• Access levels/permissions
• Changes in remote network connectivity/VPN Endpoint behavior alerts
• Sharing passwords or unauthorized use of credentials
• Attempts to access resources outside of job role
• Noncompliance with training requirements
• Policy violations

Like taking apart and rebuilding a plane in flight, organizations cannot simply deconstruct and rebuild their workforces and networks. But rethinking security awareness and empowering security teams to shore up on professionals with high emotional quotients and other characteristics which allow them to gauge the trustworthiness of, and garner the trust of their teams, can be extremely impactful –- not just for organizations and their stakeholders, but for our nation’s technology and its critical infrastructure.

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Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com

Like many other things in our society, “religious freedom” has always been more achievable for Christians than anyone else. If you doubt me, consider that a majority of the U.S. Supreme Court declared with a straight face in Trump v. Hawaii that the “Muslim ban” is religiously neutral. By contrast, the Supreme Court has recently given Christians the right to shill for Jesus during town meetings, block sidewalks outside abortion clinics, lie to pregnant women about being doctors, lie to voters, and fire teachers for getting cancer. This is not a complete list.

Meanwhile, in Miami, Muslim immigrants at ICE’s Krome detention center would just like some decent food. The Miami New Times reported in late August that ICE officials have been giving their Muslim charges halal meals that are expired and rotten. Muslims who don’t want to eat this are permitted to eat the “regular” meal — but the regular meal is often pork-based. Nothing is labeled — because of COVID-19, everything is prepackaged and served in the housing areas — so it’s difficult to tell ahead of time whether they’re eating something haram (“forbidden”).

This presents a conundrum for the detainees, who, like all humans, need to eat food on a regular basis. One detainee described the halal meals as “a chili gravy substance that … looks like dog food.” He ate it anyway and got diarrhea, so now he often doesn’t eat at all.

The problem has existed throughout the pandemic, but it’s becoming public in August because the detainees have repeatedly tried to resolve this through the detention center’s grievance process. The New Times says ICE has ignored multiple complaints; advocate Lily Hartmann of Americans for Immigrant Justice told the alt-weekly, “To us, it seems like they simply don’t care.” Hartmann noted that this kind of callousness is the way that the immigration system was intentionally designed and also suggested it may be a factor that many of the Muslim detainees at Krome are black. (Good thing we have Nikki Haley to remind us that America is not a racist country!)

Hartmann’s organization outlined all of this in an August 19 letter co-authored by the public interest organization Muslim Advocates and the law firm of King & Spalding. Now, the three Muslim members of Congress have taken up the cause. Reps. Rashida Tlaib, D-MI, Ilhan Omar, D-MN, and Andre Carson, D-IN, sent a letter Monday to the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, asking it to investigate the complaint. The three Congressmembers (and their 26 co-signers) noted that forcing people to choose between haram meals and rotten food is a clear violation of their rights under the First Amendment and the Religious Freedom Restoration Act, as well as a violation of ICE’s own Performance-Based National Detention Standards.

The Congressmembers asked the civil rights office to ensure that Muslim detainees have access to fresh pork-free food and look into this across all the detention centers. Given what happens to CBP officers who murder people — usually nothing — and the fiercely anti-immigrant sentiment among DHS leaders, I’m not holding my breath. Here’s hoping members of Congress have the pull to prove me wrong.

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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.

While once the news was filled with reports of icon Britney Spears’s fantastic music, Las Vegas performances coupled with  photos of erratic behavior, and mystifying social media posts, her name is currently synonymous with legal debates as to civil rights, autonomy, and, oddly enough, trusts and estates.

Instagram, newspapers, and even fellow superstars like Cher have voiced their concerns for Spears and her conservatorship, some even expressing objection. The American Civil Liberties Union, on August 19, 2020, tweeted that they were willing to help Spears regain her civil liberties and remove the conservatorship. The tremendous attention paid to Spears, including the #freebritney online campaign, brings important attention to the conservatorship, often called guardianship system.

Simply, when an individual is unable to provide for her personal and/or property needs, a conservator is appointed to assist. Depending on the functional limitations or disabilities of the individual, the conservator, sometimes called a guardian, can exercise total control, or perhaps limited control. Some courts tailor a guardianship to allow the guardian to only act on certain powers.

As a celebrity, the world is intrigued by Spears. We wonder, how is someone with such talent, work ethic, and wealth, in need of a conservator? How does someone who looks so good and healthy need assistance? If someone can work that hard and make that much money, how can they require a conservator? Finally, why does someone so young, with children, require so much assistance and court intervention?

Unfortunately, as the public we do not get to listen to the court hearings and read the confidential reports. As Phaedrus said, “Things are not always what they seem.”

What we do know is that a Los Angeles Court in 2008, after hearing copious amounts of testimony and evidence, decided that Spears required a conservator of her person and property. If we have faith in the justice system, we respect the findings of the court. Further, we know that this matter has remained under the supervision of the court for the past 12 years, with the conservators filings various accountings and reports and parties participating in court appearances.

As of August, the court has ruled that the conservatorship would be continued until at least February 2021. In the past, Spears has voiced her objection to the conservatorship, especially her father, Jamie Spears, serving as her sole property conservator. Spears’s family has been public with their concerns for their loved one, especially her brother Bryan and her sister, Jamie Lynn Spears who at 29 years old is the trustee of Spears’ SLB Revocable Trust. She has been trustee, according to court papers, for the past two years. Recently, Jamie Lynn has filed papers to move all the assets of the SJB Revocable Trust into one or more accounts that she has under her control, with Fidelity Brokerage Services. It is unclear at this point what further role Jamie Lynn will be taking with respect to the conservatorship or what such a transfer of assets would mean to the conservatorship.

Regardless of the legal maneuvers, Jamie Lynn’s very public support of her sister represents the qualities of a competent and sensitive sister and, in this case, trustee. She took to social media to respond to the #freebritney movement and other attention asking for privacy and inferring that their family is just trying to protect their loved one. Wisely she stated: “I pray this doesn’t bring shame to anyone dealing with mental illness, you are not alone, and you are loved.”

Jamie Lynn’s participation in the matter reveals that sometimes family members make good fiduciaries, even when we are dealing with millions upon millions of dollars and public scrutiny. A court should look to Spears’s case and see how she can best be protected, while also making certain that she is comfortable with those who are entrusted with her life management. Assigning a devoted relative, someone who shows compassion, but is strong enough to make decisions, is the right choice for any fiduciary role, whether it be a trustee, conservator, or executor. Sometimes in guardianships, the initial arrangements need tweaking. The personalities involved may not get along or there may diverge in opinions. As Spears ages, her desires may change, and she may better work with an individual different than whom she was assigned she was younger. Perhaps a child will become their parent’s conservator when they grow up. It is imperative that anyone who is subject to a conservatorship feel comfortable with their conservator, be able to speak to the fiduciary, and of course, feel like she is heard.

As the public, we do not know the details of Spears’s conservatorship nor do we know or should we know how she gets along with the various family members and other professionals working on her matter. From what we can see, her siblings are expressing great love and support to her and it would behoove any court to use them as best as they can. Sometimes the best guardians are third parties, separate and apart from the familial entanglements. And sometimes, it is more organic.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

I can’t believe that it’s September already, and we’re in yet another month of “safer at home,” social distancing, masking, working from home, and all the other ways that the virus has impacted our careers and our lives. It will continue to do so until there’s a vaccine or something available that will help us get to whatever “normal” looks like in a post-pandemic world. Whatever is it, it probably won’t look much like life was before. All the things we took for granted are out of our reach, at least for the foreseeable future.

And the future is not foreseeable. Courts ask for trial time estimates, and we give them, but fingers are crossed with an attitude of “please don’t hold me to this” because anything can happen in trial.

I understand the frustration of everyone, especially the young’uns for whom life is just beginning. To come up against the COVID-19 brick wall is galling. And yet there’s nothing we can do about it.

I don’t understand why law students (and college students) are so cavalier about partying, social distancing, and the other guidelines set forth to protect peeps from the disease. You can read David Lat’s columns on ATL about his battle with the virus, and how he is still recovering. I can tell you about two friends in New York City, one of whom almost died, and the other, her husband, was equally ill, but in different ways. I’m sure that many, if not all, of you can share similar stories of illness or even death.

So, when I read about law students partying in defiance of the deadliness of this disease, I want to shout out “What The F—Are You Doing?” If travel wasn’t discouraged, it would almost be worth a trip to Oklahoma (I’ve never been there) to shake some sense into these students. But maybe I should start with the administration and its cavalier attitude about who gets to know and who doesn’t. Although the party was thrown by a 1L, the law school only notified the 1Ls who attended. Isn’t it possible that there were 2Ls, 3Ls, even graduates, and even (surprise surprise) non-Ls? Of course, we know that Ls only like to socialize with other Ls; that’s part of the reason why we have achieved our dubious arrogant reputation.

Where’s the harm in “overcommunicating?” What’s the downside in sharing the news far and wide? How could the Oklahoma administration have made the assumptions it did? It couldn’t.

I understand the feelings of being cheated out of experiences that used to be considered normal, and partying was one of them. There’s nothing like a good party, especially after finals. Also vital is the interaction among students, whether college or law school, and so is the academic life that being on campus provides. I get it.

So, even though social distancing, wearing a mask, and other recommended procedures to prevent the spread of COVID-19 do not have the force of law (to the dismay of some and the delight of others), I wonder whether the disregard shown for these measures would ever factor into the character and fitness evaluation needed for bar admission. Don’t laugh; it’s entirely possible that in the future, questions related to conduct during COVID-19 could show up on the questionnaire. Yes, I know it sounds farfetched now (e.g., now what have I been smoking, drinking, or both?), but we all know that the NCBE marches to its own out-of-step drummer. Even if moral fitness and character don’t trip up admission, reputation is all we have and that follows us during our entire career.

What troubles me about this is the lack of judgment shown by this IL who hosted the party. We dinosaurs do complain about the lack of maturity that some new lawyers have, and this is a classic example of that. Would you want your new associate to demonstrate such a lack of judgment in working with a client? Yes, I know that in Biglaw working with a client does not happen out of the gate, but in most firms, newbies must have some sense of judgment, some sense of responsibility from the get-go. Otherwise, how will they succeed in a practice that is as difficult as ours?

Contrast the Oklahoma response with the concerns expressed by the University of Notre Dame law school dean, G. Marcus Cole, who learned of a planned party that was to be maskless. He warned the students in an email sent law school-wide both about the virus and concerns for their professional reputations. Cole noted that the students’ behavior in law school now will begin to establish their professional reputations.

Just as lawyers, law firms, and the courts have had to make radical adjustments in how they practice and how they operate while maintaining health standards necessary to keep everyone safe, law students need to have more than a clue about what’s happening in the world.

For everyone in the practice, it’s a time to get used to a new normal, one that none of us wanted. When the ball dropped at midnight in Times Square ushering in this dreadful year, no one could have predicted what has happened.

This situation brings out the best (and the worst) in peeps. Moral character? Judgment? Reckless disregard? Think about these things before anyone invites you to a maskless, crowded, no-social-distancing party, or even out to dinner, especially over this upcoming Labor Day weekend. And if those are not enough, then read LA Times sport columnist Bill Plaschke’s encounter with the virus and the things that nobody tells you. Do not overestimate the world.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.