Category: News Feeds

Biglaw salaries are very much in flux in 2020. After COVID-19 tanked the economy, lots of firms played it cautious and slashed salaries. Now that things have largely settled, at least in the legal industry, more and more firms are reversing those cuts. And since transparency is paramount and folks are eager for information as they try to figure out exactly what is going across the industry, we’ll be covering all of the ups and downs that might come to Biglaw.

The latest firm to reverse course on salary cuts is Fisher Phillips.

Back in April, Fisher Phillips announced salary cuts across the board with no end date. Associates and salaried staff had their paychecks cut by 20 percent, while hourly staff members had their hours cut by 20 percent, and those who are unable to work remotely were furloughed. Partners also took a pay cut, though the exact amount was unknown.

Though the cuts were for an indefinite period of time, tipsters at the firm report that after four months, Fisher Phillips is done with the austerity measures. Salaries will be fully restored “effective in the second half of August.” And decisions on bonuses/true-up payments will be made at the end of the year.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

---

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).

As NBA, NFL, and MLB players use their platforms to promote racial justice and ballot access, eight University of Nebraska football players are setting their sights closer to home. Yesterday they filed suit in the District Court of Lancaster County, Nebraska, to reinstate the fall season claiming breach of contract and tortious interference with business expectancies with the goal of getting a declaratory judgment ordering the Big 10 to reverse itself and let the games begin in September.

Because the real victims of COVID are college athletes forced to attend class like every other student.

The theory of the case is that the Big 10’s bylaws require it to put the decision to postpone the season to a vote, and several participating coaches said no such vote took place.

“Our Clients want to know whether there was a vote and the details of any vote, and whether the Big Ten followed its own rules in reaching its decision,” the plaintiffs’ attorney Mike Flood said. “Sadly, these student-athletes have no other recourse than filing a lawsuit against their conference.”

Claiming that the Big 10 is subject to personal jurisdiction in Nebraska because it hosts games there, the players seek what amounts to a nationwide injunction from a state trial court to force the conference to reinstate play in eleven states stretching from Nebraska to New Jersey. The country is a patchwork of quarantine orders for out-of-state travelers; nonetheless these students demand that a local court give them the right to traverse it at will.

As to standing, the plaintiffs claim to be third party beneficiaries of the conference’s bylaws. Flood attempted to bolster this assertion yesterday in a hearing on a motion to expedite discovery by citing the players’ scholarship obligations to the university, which are “subject to your full compliance with this institution’s policies and the rules, regulations, bylaws, and other legislation of the Big 10 Conference and the NCAA.”

How the students’ contracts with their own school binds the Big 10 to disclose internal deliberations to the players is … unclear. Nor is it clear how supposedly amateur athletes have a cognizable commercial business interest in playing football during a pandemic to “develop their brand and market themselves,” particularly when they are subject to draconian punishment if they even think about monetizing their sport.

But the suit alleges that the Big 10 “intentionally interfered with the Student Athlete Plaintiffs’ business expectancies” and points to the purported lack of compliance with internal bylaws as proof of intent to harm.

The players pooh-pooh the assertion that the conference canceled fall sports to protect the health of athletes and coaches, because big strapping lads like themselves are impervious to disease.

No, really.

Upon information and belief, the Big 10 relied heavily on a study of the health effects of COVID-19 that involved COVID-impacted patients who bear little resemblance to the Student Athlete Plaintiffs, who are much older than the Student Athlete Plaintiffs, and who are not in similar condition as the Student Athlete Plaintiffs. Upon information and belief, the study relied upon has no clinical significance. The purported reliance on such data, which has been sharply criticized nationally and internationally by numerous medical professionals, is also unreasonable and unjustified, and arbitrary and capricious, because it does not take into account significant countervailing safety issues that actually went to the college football environment a safer place for the student athlete plaintiffs when compared to an environment where college football is not being played.

How the players are “safer” crossing state lines to roll on the ground with young men from other states, rather than simply practicing on their own turf, the complaint does not specify. But because the season was originally scheduled to start next week, they’re seeking expedited discovery of the internal deliberations that led to the postponement.

The conference is none too eager to set a precedent opening its internal deliberations to students.

“We are of the strong view that there is no claim here,” said Andrew Luger of Jones Day, who represented the conference at yesterday’s hearing. “Eight students out of hundreds — eight students from one school out of 14 — are seeking to overturn a decision that will affect thousands of people. And they are doing so under the most stretched legal theories that one can imagine.”

Later he added, “These plaintiffs disagree, I understand that,” Luger said. “But that’s not a basis to pick apart (Big Ten) internal processes, to get documents that nobody has a basis to see, for a lawsuit that we are firmly convinced will fail on the merits.”

At the conclusion of the hearing held virtually to protect the parties from coronavirus — of course! — Judge Susan Strong gave the defendant until Monday to file a reply brief.

Lotsa luck, fellas.

Husker football players sue Big Ten; conference says ‘lawsuit has no merit’ [Omaha.com]
Garrett Snodgrass et al. v. The Big 10 Conference, Inc. [Complaint]

---

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

From salary cuts, furloughs, and layoffs to the concept of online schooling and working from home while on lockdown, the pandemic has brought a lot of change to the legal profession as a whole. Here’s one more interesting change that could come to fruition sometime in the next year: a law school merger.

Cleveland State University and the University of Akron recently announced that they’re forming a working group to determine the feasibility of creating a “unified” law school. To think, this all started with an idea to cross register classes between the schools for the Fall 2020 semester. The last time we saw one of these was back in 2015, when Minnesota-based law schools William Mitchell and Hamline joined forces amid a nationwide collapse in enrollment to become Mitchell Hamline Law.

Here’s an excerpt from the press release on the potential merger:

A joint operating model would potentially create the largest law school in Ohio and one of the largest public law schools in the country. UA and CSU would jointly own and operate the newly organized law school, making it the only law school in the United States to be part of two different urban public research universities. …

The physical proximity of the two campuses would allow students to take in-person courses at both locations; students also could choose from many online offerings. The combined faculty would bring enormous depth and breadth to the school’s curriculum and scholarly output and its capacity to serve the Northeast Ohio community through clinics, educational programming, pro bono work and legal expertise would be unmatched.

Cleveland State is currently ranked at #102 by U.S. News, while Akron Law follows at #141. Employment prospects at both schools were similar for the class of 2019: at Akron, 63.6 percent of graduates found full-time, long-term jobs where bar passage was required, while 62.5 percent of Cleveland State’s graduates found similar jobs. Akron’s ultimate bar passage rate for 2020 is 83.02 percent, while Cleveland State’s is 81.03 percent. The two law schools really are quite similar.

From the sounds of it, both schools would remain open, so there would hopefully be no layoffs to worry about. Let’s see what the future holds for these law schools.

University of Akron and Cleveland State University to Explore Creating Unified Law School [University of Akron]

---

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.

Time’s been funny during the pandemic. It can seem like not much has changed since we first shuttered our doors and began working exclusively from home back in March. But judging by the fortunes of Biglaw firms, things are improving. Increasingly, we are seeing Biglaw firms that cut salaries in the opening days of the pandemic change course, and rollback those cuts.

That’s exactly what’s happening at Kilpatrick Townsend.

Back in April, the firm cut partner draws by 10 percent. Associates and non-partner salaried employees saw a 5 percent pay cut. Secretaries moved to a 0.8 schedule but were not subject to the firmwide 5 percent salary reductions. But now it looks like the fears of a 15 percent revenue shortfall were overstated, and a rollback is in order.

Kilpatrick Townsend announced that associate salaries are being fully restored to pre-pandemic levels effective on September 1st, and reflected in the September 15th paycheck. Attorneys that had mandatory FTE reductions are being considered case by case, and secretaries will be returning to full time status.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

---

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).

Given the state of race relations in this country, I guess this isn’t surprising. But I have to write about another law school professor willfully ignoring the violent history of the N-word and deciding to use it in a classroom setting pretty frequently. It’s unsettling.

In any event, the latest incident happened at UC Irvine School of Law, where according to a statement signed by senior members of the law school administration, an unnamed faculty member used the N-word in class, and then again — multiple times — in conversations with the Dean. And that prof apparently won’t “apologize or acknowledge wrongdoing.”

The statement strongly condemns the words of the unnamed faculty member, but suggests the banner of “academic freedom” is being flown to prevent any consequences for the professor:

[O]ne one of UCI Law School’s faculty members yesterday used the “N” word in a class and then again multiple times in a conversation with the Dean. Although confronted by the harm this action caused to Black students specifically and the law school community more generally, the faculty member has yet to apologize or acknowledge wrongdoing.

Many members of the Senior Administrative team have spent much time over the last 24 hours listening to Black students so traumatized that they could not focus and attend class. Our Black students are once again bearing an unacceptable and unnecessary burden.

Academic freedom may technically permit a professor to use the “N” word, but we call for our community to do better. We say we are different, but we must BE different. We should not add to the pain of our students in the name of academic freedom. We condemn without qualification the classroom utterance of terms, such as the N-word, that are loaded with histories of pain and oppression. Human decency and respect for the feelings of others require as much.

Let’s put aside the red herring of academic freedom, and look at the glaring thing this message leaves out: the faculty member’s name. That means there’s no public record of which professor thinks it’s just fine to throw around the N-word and prospective and future students (because this person isn’t going anywhere) do not have that valuable bit of information. That means they could unwittingly walk into the professor’s classroom — or be assigned to the professor’s class (there’s no information about whether this prof teaches mandatory 1L classes) — without being forearmed with the knowledge that the prof likes to drop the N-word.

I’m sure a lot of current students are in the know and have heard who this is, but it’s about more than just the folks at UCI right now. It is disturbing that the senior administrative team isn’t willing to name the professor. Academic freedom means a lot of things to a lot of different people, but it certainly doesn’t guarantee you anonymity for using racial slurs.

Read the full email below.

---

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).

Stop me if you’ve heard this before, because I’ve definitely written it before. A state experiencing a surge in COVID infections issues both state and local occupancy restrictions to control the spread of the deadly disease and then issues exemptions for the in-person bar exam to crowd people into a room as if JDs were f**king inoculation records. Get ready to spin the wheel kids to figure out what state we’re talking about this time…

It’s Hawai’i!

There’s a 200 applicant in-person bar exam coming up in September. And don’t worry, they’re sticking with the two day format so we’re forcing people from across the state to get hotel rooms and spend a good 72-hours casually spreading illness around the state capital. There’s a 5-person occupancy limit in the city. The convention center is closed to the public.

But not for the bar exam! No, for the bar exam every bet is off.

And Hawai’i State House of Representative John Mizuno, who chairs the Health Committee, has slyly called out the Judiciary Committee for being asleep at the wheel with a public statement of his own:

I say this with sensitivity and sincerity, we are in the greatest pandemic since the 1918 Spanish Flu, with a death toll of over 800,000 worldwide and over one hundred seventy- eight thousand fatalities in the United States. The current surge in COVID-19 cases along with the strict stay-at-home order issued for the island of Oahu makes an in-person exam unreasonable. Any future in-person exam while COVID-19 remains active would have to be carefully administered to ensure full protection of participants. I don’t know if I would have an adequate reply to a loved one of a husband, wife, partner, parent, or child who died because of COVID-19 and it could have been prevented by alternatives.

Mizuno isn’t necessarily calling for diploma privilege, though he cites it as an option. He’s taking the “I don’t know the answer but it sure as hell ain’t this” approach, which is desperately needed in these times.

And yet, we’ve not seen enough prominent voices on that train. Hop on folks, there’s plenty of room.

We can even socially distance.

Law school grads fear catching COVID-19 during bar exam [Star Advertiser]

---

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.

I am always excited to meet and interview lawyer entrepreneurs who have wonderful stories about their “a-ha” moment — usually a moment of profound frustration while sitting at their desk at work on an assignment. Universally, they describe an interior voice yelling, “There has got to be a better way.” I am especially excited today to be having my first interview with a female legal tech entrepreneur: Nicole Clark, CEO of Trellis. 

My conversation with Clark reminded me of a quote from Goethe: “Whatever you do, or dream you can, begin it. Boldness has genius and power and magic in it.”  Nicole has no small dreams. She describes her product as the “Google of legal analytics” and proclaims that Trellis “will own the state court data and analytics space” in the future.

Trellis’ website describes their mission as “Democratizing access to the law by making state trial court records and legal data more accessible … [to bring] greater transparency to our judicial system.”

At first glance, it appears that Trellis entered the market to compete with Lex Machina, Thomson Reuters, and Gavelytics, each targeting an aspect of the state court analytics market. However, my discussions with Clark revealed a bold and unique approach to the development of her product, and a unique market strategy, to outwit the long procurement cycle in large law firms.

CEO Nicole Clark and Chief Product Officer Alon Shwartz, the co-founders of Trellis, initially launched in California in early 2018 with $2 million in seed funding. Recently, they expanded coverage to state trial courts throughout New York, Florida, and Texas.

JO: What is what is your vision of Trellis and where does it fit into the legal market?

NC: I see Trellis as really owning the entire trial court space eventually.  There are so many challenges associated with acquiring, aggregating, and analyzing state court data which is housed separately by every county court. Because this is such a big undertaking, its important to prioritize tackling the state trial court system — which is the largest and most fragmented court system in the nation.

JO: So what inspired Trellis? 

NC: Trellis grew out of my own frustration as an associate trying to access trial court data. I did a lot of class action, wage, and hour work, and I was litigating constantly at the state court level. I just couldn’t believe that there wasn’t a better way to access information about trial court judges, motion practice, and my opposing counsel. I was often the associate tasked [with] building intel on a judge, which meant sending out emails asking colleagues for insights and experiences, and then turning those anecdotes into strategic recommendations for partners. It just blew my mind that we were using internal anecdotes to make these decisions when there was clearly so much hard data out there on how judges were actually ruling. So really the idea of needing better data started percolating early on in my career.

JO: What was your a-ha moment?

NC: I started collecting my own data about judges while I was working as an associate in order to try to be more strategic and proactive. Trellis was born when I was writing a complicated motion for summary judgment late one night. I didn’t know our judge, and I wasn’t sure the best way to structure the motion. After consulting a colleague, I learned that he had appeared before my same judge a few years earlier. His case file included a ruling that was written by my judge, on my issue, on my motion. I suddenly felt like I been given a “cheat sheet” on how to write this motion for this judge. I wrote the Motion for Summary Judgement in half the time, and my motion was granted. I realized that no one had been collecting, archiving, and analyzing the treasure trove of trial court data that’s out there. The state court litigation market is huge. There are 30 cases filed in a state court for every one case filed in a federal court. But with the federal courts there is one unified system (PACER) whereas with the state trial courts, no one had stepped up to create a single searchable interface for all state trial court data.

JO: How did you make the transition to entrepreneur?

NC: I’ll be honest, I was risk averse. I did not wake up saying I’m going to be an entrepreneur. As a lawyer, I really thought that my career options were to change firms. I started very small, with myself as customer number one. I had software developers start aggregating trial court data for me to use in practice, as my own secret weapon. I continued to practice for a number of years using Trellis data. It had such a dramatic effect on my motion practice, my winning streak. That’s actually what gave me the courage to leave practice. It became obvious to me that there was a massive opportunity here to build a thriving, scalable, legal data company and that this opportunity was so much bigger than my career as a litigator. I ended up ultimately feeling that remaining a litigator would actually be a riskier move than taking this opportunity head on.

JO: What is distinctive about the Trellis business model?

NC: We came at building our product from a standpoint of how do we make this super intuitive? Lawyers don’t have billable hours to waste learning new products. We also knew that selling into large law firms was difficult and [an] incredibly slow process. So very early on we moved toward a bottoms-up sales approach. I rejected the Lexis and Westlaw model of only selling enterprise licenses, instead opting to embrace internal champions at the largest firms.

Everyone in legal knows that firms have a painfully long procurement cycle which has been the death of many start-ups in the legal space. As a VC-backed start-up, your only real finite resource is time, you have a limited amount of time to demonstrate to investors that you can grow the company dramatically. So much of the business as a startup is starting with an assumption, and then testing that, and then shifting strategies. One of our earliest hypotheses was that lawyers were starting their research on Google. Often they want to get some basic information before they spend a chunk of hours diving into Lexis/Westlaw and conducting traditional court of appeals research.  So, we started with this hypothesis that lawyers were starting their cases by googling their judge. We began making our judges biographies searchable on Google. That worked, and we started to see more and more traffic where lawyers were coming into our site organically.

Instead of hiding the product entirely behind a paywall, we wanted to make the documents and information very easy to find organically. Prior to Trellis, my cofounder, Alon Shwartz had been CTO of a company called Docstoc, which was the largest database of contract and legal documents for small businesses. Docstoc was ultimately acquired by Intuit. But in growing that company, Alon gained so much invaluable experience that we get to benefit from every day at Trellis. This ranges from search engine optimization, like with our judge biographies, to the technical, business, and leadership challenges of growing a rapidly scaling business.

JO: How did you come upon the freemium approach?

NC: Based on our experiments with judge biographies, we knew that if we could get more lawyers to the website, where they could actually see and experience the power of this data, the value would be obvious. Moving toward a freemium customer acquisition model allowed us to leverage lawyers’ natural behavior of googling information about their case, their judge, their opposing counsel. Then, we offer a free trial period to take away any risk. It’s important to let users discover and recognize the value themselves … it’s a “show” versus “tell” mentality.

Initially, it was very, very scary allowing Google to ingest our data. I felt very protective of our intellectual property particularly when some of this data includes what I call “disappearing data” such as the judicial tentative rulings that nobody else had collected.

Ultimately this strategy helps us at large law firms as individual associates and partners find Trellis useful on their cases and become our best advocates. We are able to sell using a “bottoms up” strategy leveraging these champions.

Once we have multiple users from the same law firm signing in regularly, we know its time to reach out to the library or knowledge management directors to chat about moving the account to enterprise with additional features and benefits for the whole team. With this “bottoms up” approach we’re able to enter both the large and small ends of the market simultaneously without a large sales force.

JO: What distinguishes Trellis from the competition? You appear to be approaching the marketplace differently than your competitors. You are not just focused only on trial analytics you are focused on the documents in the trial courts.

NC: While others may focus exclusively on analytics, we think analytics are only one piece of the pie. Successful litigation strategy requires a 360 vision, it requires data, only when you have that base layer of data and transparency can you provide insights. Analytics without context simply aren’t actionable.  This is why we focus on aggregating filed court documents and make the body and text of the docs searchable before downloading.  Great insights require rich data. Trellis focuses heavily on the data, having the most comprehensive state trial court platform available. Whether you’re looking for a particular docket, analytics on your judges, or you want to pull every MSJ your opposing counsel has filed in similar cases, across counties — we have the data, simple, searchable, easily accessible through a single interface. At our core we are a data company. We believe that better access to trial court data will lead to better decision making.

JO: What is next for Trellis?

NC: We’re moving fast. We started in California and recently added state trial courts across New York, Texas, and Florida (with searchable filed documents in each state). We’ll be expanding to Delaware and Illinois by the end of the year. In the next few months we’ll also be rolling out an entirely new judge analytics dashboard with even deeper insights ranging from timing and disposition analysis to ruling tendencies across case types and practice areas. Expect law firm and party analytics to follow. As always, we’ll continue focusing on the data, and on fostering accessibility, so everyone can make better decisions.

---

Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

Firm Measures Taken Who Is Affected? Baker Botts Salary Cut Reductions
Special Bonuses Staff, Associates, Counsel (prior salary cuts — 20 to 30 percent based on salary level for counsel, 20 percent for associates, and 0 to 20 percent based on salary level for staff — will be reduced by 50 percent; special bonuses for exceptional performance of non-partner timekeepers, with special staff bonuses to be awarded later) Bryan Cave Leighton Paisner Salary Cut Reductions Staff, Associates (in April, salaries for anyone making over $40K were cut by 15 percent, but in July, the firm rolled back the severity of the salary cuts, going from 15 percent to 7.5 percent cuts) Cadwalader Salary Cut Reductions Staff, Associates, Partners (in March, the firm slashed associate compensation by 25 percent and staff compensation by 10 percent; on top of those cuts, partners and senior counsel chose to forgo distributions entirely; as of August 1, everyone’s prior salaries restored) Cozen O’Connor Salary Cut Reductions Partners (partner distributions on hold in the spring, but as of July 1, partners’ pay checks were back to normal) Crowell & Moring Salary Cut Reductions Staff, Associates, Counsel (in April, associates and counsel got a 15 percent cut, and staff making $100K+ took cuts in the range of 5 to 20 percent; on September 1, all compensation will revert to pre-pandemic amounts) Fox Rothschild Salary Cut Reductions Staff, Associates, Partners (in May, the firm enacted a tiered salary reduction of between 10 percent and 15 percent for all attorneys and staff making more than $100K would take effect in May, while partners reduce their monthly draws between 10 percent and 20 percent; as of September 1, all of those cuts will be ruduced by 50 percent) Holland & Knight Salary Cut Reductions Staff, Associates (the firm restored 30 percent to 50 percent of the original 17.5 percent (associates, counsel, and senior professionals), 15 percent (staff making $150K+) or 10 percent (staff making $75-$150K) cuts at the end of June, with all associates receiving a 30 percent restoration of their salaries) Husch Blackwell Special Bonuses Associates (associate client development bonus that was supposed to be deferred until January 2021 under the auspices of the firm’s COVID cuts.was unexpectedly paid on August 15) Katten Muchin Salary Cut Reductions Staff, Associates (in May, the firm slashed salaries for staff and attorneys making over $100K by 20 percent; in mid-August, the firm walked back its salary cuts, reducing them by 50 percent) K&L Gates Salary Cut Reductions Staff, Associates, Partners (in April, the firm reduced salaries across the board, with equity partners seeing a 20 percent reduction in scheduled advances, and firm leaders taking even larger reductions; income partners, associates, and allied professionals and staff were subject to a 15 percent reduction in their salary provided their income didn’t fall below a $75K floor; at the end of September, equity partners will see a 15 percent reduction in advances; at the beginning of September, all other employees’ salary cuts will be reduced by 10 percent, with the floor shifting upward from $75K to $100K) Kennedys Salary Freeze Rollback
Special Bonuses Staff, Associates (staff were supposed to have their salary reviews in May, while attorneys were supposed to have their salary reviews in September; all employees will now have their salary reviews in November and all bonus commitments will be honored) Loeb & Loeb Salary Cut Reductions Staff, Associates, Partners (income partners, senior counsel, of counsel, associates, and senior staff had their salaries cut by 15 percent and paralegals and other staff saw 10 percent cuts; those cuts will be reduced by 60 percent on September 1) Lowenstein Sandler Salary Cut Reductions Partners (after halting partner distributions from February through April, the firm was able to pay higher than usual distributions in May and June) Munck Wilson Mandela Salary Cut Reductions Staff, Associates, Partners (in May, the firm reduced compensation for all employees, while some partners voluntarily deferred the entirety of their compensation for three months; as of July 1, the firm returned all employees back to their standard compensation) Ogletree Special Bonuses Associates (special bonus of $10K for associates who bill 1,700 hours in 2020; associates who bill 1,900 hours will receive an additional $10K on top of the special bonus; associates who exceed 2,000 hours in 2020 will qualify for a bonus based on a percentage of their salary) Pillsbury Salary Cut Reductions Staff, Associates, Counsel (all salary cuts made in May will be reduced (adjusted salary cuts for associates and counsel are now 15 percent, down from 20 percent; for staff making more than $100K, the pay cut is 10 percent, down from 15 percent; for staff making between $75K and $100K, the pay cut is 5 percent, down from 10 percent); all reductions in compensation incurred in the first half of 2020 are being repaid in full Reed Smith Salary Cut Reductions Staff, Associates, Counsel, Partners (on September 1, for professional staff earning more than $100K, a current 10 percent cut will become a 5 percent cut; a 15 percent cut for associates will remain at that level (it was supposed to increase to a 20 percent cut on September 1); and a 20 percent compensation cut for fixed-share partners and counsel will be reduced to 15 percent) Sheppard Mullin Salary Cut Reductions Staff, Associates, Counsel (in April, the firm cut salaries by 12 percent for associates, special counsel, and staff attorneys, while staff members making more than $90K had cuts of 10 percent and staff members making between $70K and $90K saw their salaries cut by 5 percent; all of those cuts will be reduced by 50 percent starting on August 31) Stoel Rives Salary Cut Reductions Staff, Associates, Partners (current compensation reduction for all associates, staff, and of counsel lawyers will change from 20 percent to 10 percent; staff salaries and schedules will be modified as follows: staff with a 20 percent reduction will change to 10 percent, staff with a 15 percent reduction will change to 7.5 percent, staff with a 10 percernt reduction will change to 5 percent, staff with a 5 percent reduction will return to full salary and schedule; third quarter partner distributions will be reduced by 15 percent instead of the 20 percent reduction in Q2)

As you may have heard, last week Robert F. Kennedy Jr. and his anti-vax organization “Children’s Health Defense” filed a supremely stupid lawsuit against Facebook, Mark Zuckerberg, and fact checking organizations Poynter and Politifact among others. It was filed early last week and I’ve wanted to write it up since someone sent it to me a few hours after it was filed, but, honestly, this lawsuit is so incredibly stupid that every time I tried to read through it or write about it, my brain just shut down. I’ve been incredibly unproductive the last week almost entirely because of this silly, silly lawsuit and my brain’s unwillingness to believe that a lawsuit this stupid has been filed. And, as regular readers know, I write about a lot of stupid lawsuits. But this one is special.

The basis (if you can call it that) for this lawsuit is that Kennedy is mad that Facebook is blocking the medical disinformation he and his organization publish. Because it’s wrong. And dangerous. And stupid. They have every right to do this, of course, so the lawsuit has to come up with the dumbest possible reason to argue as a basis for a lawsuit. We’ve covered lots of other bad lawsuits about content moderation, but the knots Kennedy and his team tie themselves in to make this argument is truly special (and I don’t mean that in a positive way):

This is a case about how an officer and an agency within the U.S. Government “privatized” the First Amendment by teaming up with Facebook to censor speech which, under the Bill of Rights, the Government cannot censor. In February 2019, Democratic Congressman Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act unless Facebook implemented algorithms to “distinguish” and suppress “vaccine misinformation” and advertising. The Centers for Disease Control and Prevention (“CDC”) and, under its aegis, the World Health Organization (“WHO”) then collaborated at length with Facebook to suppress vaccine safety speech with a “warning label” and other notices that appear to flag disinformation, but in reality censor valid and truthful speech, including speech critical of those agencies and their policies. A judicial remedy is urgently required to redress that system of prior restraint which will otherwise go unredressed.

Try to read that without having your brain drip out of your ears. It’s really difficult. To reiterate, Kennedy is arguing that the 1st Amendment has been “privatized” (?!?) because one Congressman threatened to remove Facebook’s 230 protections if it didn’t deal with vaccine misinfo. Now, to be clear, I’ve complained for well over a decade that it’s totally inappropriate for elected officials to tell internet platforms how to moderate specific content. But, even if there were an issue here, the complaint would be with Adam Schiff, not Facebook.

I’m just as annoyed by Schiff threatening 230 over this as anyone, and I believe that pulling 230 would not help the situation at all. But it’s simply laughable to argue that Schiff’s demands turned Facebook into a government actor. Yet that’s what the lawsuit argues.

Facebook making the decision that it does not want to be the central source for spreading anti-vax nonsense is something that it is free to do on its own. There is no legitimate argument for suing Facebook over this decision.

Here, government actors actively partnered with one of today’s leading “printing presses” (Facebook) to censor Plaintiff’s speech critical of government policy. The framers were familiar with the English struggle and enacted the First Amendment to establish and preserve the right of the People to full information about the doings or misdoings of their government. Grosjean, 297 U.S. at 247-49. This case mirrors the framers’ concerns. The government cannot accomplish indirectly what the Constitution forbids it to do directly.

THEN SUE THE GOVERNMENT. But, he did not. He sued Facebook and Zuckerberg. Why? For [reasons].

This is also a case of corporate fraud against Facebook and its Chairman Mark Zuckerberg, inter alia, for their smear campaign against Plaintiff consisting of false content that Facebook itself created, as well as knowingly false suggestions, and other acts of fraud and deception on or concerning Plaintiff’s Facebook page. At a time when the social media platform and its creator claim to be exponents of free expression and the scientific method for discovering truth, this case reveals the opposite: that they are indeed censors, and opponents of real science and open debate.

Sir, this is a Wendy’s. A case of corporate fraud against Facebook? And that’s why you’re suing Facebook? What are you even talking about?

Children’s Health Defense (“CHD”) and its founder Robert F. Kennedy, Jr. (“RFK, Jr.”) have built CHD’s good name and reputation as a public health advocate for complete candor as to both the risks of environmental toxins, vaccines, 5G and wireless networks, and the conflicts of interest in government oversight of those products and services. Plaintiff’s online reputation is important to its standing as a preeminent leader in the health reform movement. CHD seeks $5 million or more in treble and punitive damages against the Facebook defendants for their deliberate use of the “known lie” to damage Plaintiff’s reputation and organization.

Oh shut the fuck up. You spew misinformation, Facebook is getting hammered from every direction for being a key venue through which such bullshit is spewed. Facebook, for good reasons, decides it doesn’t want to host your nonsense. Don’t like it? Go somewhere else.

Also, a lawsuit is no place to spew more nonsense conspiracy theories, but that’s what we’ve got here:

This case arises in a pandemic when the need for public debate on health issues has never been greater. CHD’s vision is a world free of childhood chronic health conditions caused by environmental exposures. Plaintiff highlights harms associated with the current vaccine program, pesticides, and deployment of 5G and other wireless technologies. Zuckerberg’s professed “moon shot mission” is “to cure all disease on the planet within the Facebook chairman’s children’s lifetimes.” Yet, defendants’ first giant leap for humankind is to censor CHD’s viewpoint which competes with Facebook’s business plan for pharmaceutical ad revenue, vaccine development, and 5G and wireless networks. One may question on that basis the sincerity of their vision in this and all things.

First of all, fuck off with the 5G conspiracy nonsense. Don’t spread bullshit. Second, this paragraph stupidly conflates the efforts Mark Zuckerberg is working on privately from his own foundation with the mission of Facebook itself. And they’re not moderating your content because it “competes with Facebook’s business plan.” Because what the fuck, dude? It’s not all about you.

And, even if for some reason Facebook was worried that you would somehow cut into its ad revenue (and it does not), so what? Under what bizarre legal standard do you actually think that Facebook is somehow required to host your nonsense? Oh, of course. A misreading of Packingham. [smacks forehead]

In Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017), Justice Kennedy wrote of the potential harm that users of social media sites like Facebook can do, but his words ring true of the “mastermind” of that platform:

In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” [. . .] While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. [. . .] the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. [. . .] For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. [. . .] So it will be with the Internet and social media.

Id. at 1735-36 (emphases added). Now comes this case to fulfill Justice Kennedy’s prediction, but with an unexpected twist. One of the titans of the internet age has exploited that new technology as an instrument to commit fraud and censorship.

Packingham was about why the government cannot pass a law that bars people from social media. It has zero effect on whether or not a private platform can call out bullshit and moderate the content on its platform as it sees fit. And, of course, in relying on Packingham, this case ignores the much more on point (and recent) ruling in Halleck that made it clear that private companies get to moderate as they see fit, and aren’t state actors just because you want them to be.

The complaint goes on and on about how awful it is that Facebook’s actions against vaccine nonsense got support from the dreaded CDC and the WHO. Now, the CDC and the WHO have, at times, said dumb things. And they are not the be all, end all of health information. But this filing makes it out like whatever the CDC and the WHO say is the exact opposite of what people should pay attention to all the time. And seems to suggest that in Facebook setting up rules to follow CDC and WHO guidelines, that it is somehow evidence of nefarious intent.

Honestly, so much of this 115 page lawsuit is like a legalistic version of the utter nonsense that shows up in our comments any time we call out anti-vax nonsense. Idiots with way too much free time on their hands and way too little understanding of evidence, statistics, data, and science, who spew utter nonsense with links they don’t understand, studies they haven’t read, and medical mumbo jumbo they do not grasp. It’s bullshit.

At some point about halfway through the filing, the lawyers finally recognize that Section 230, which allows Facebook to moderate however they want, may be a problem, and they try to address that in the most laughable way possible: by citing the famous Roommates.com case. We’ve talked about that case for many, many years. It was the first ruling that punched a bit of a hole in CDA 230, but it also (mostly) upheld content moderation. All it said was that if the site was involved in creating content that itself violated the law, then it might be liable for that content alone. In the Roommates case, that was content regarding the preferred race of a roommate, which violated fair housing law. There is nothing in Roommates that helps Kennedy here, even if he claims otherwise:

Facebook has an undoubted right “to control its own product, and to establish the terms with which its users, application developers, and advertisers must comply in order to utilize this product.” Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076 (S.D. Cal. 2016). But, here, even Facebook cannot avoid liability for provable injury to Plaintiff’s property rights and intangible assets based on fraud and misrepresentation. See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc) (service provider may be liable where it makes answering discriminatory questions a condition for doing business on its site).

Thus, Facebook’s ownership of its platform does not give it free rein to develop, create, and publish false and misleading content on CHD’s page, or to create tags which mislead third-party users about the truthfulness of content on CHD’s pages, or to drive traffic from CHD’s page to the CDC, to advance Facebook’s adverse business interests. Facebook’s control over the manner in which its users view its website does not encompass the right to commit acts of censorship, false disparagement, and fraud.

That is… not what the Roommates case says or means. It’s also not what Facebook is doing.

Over the past fifteen months or longer, defendants have carried out a fraudulent scheme to misrepresent, censor, and exclude CHD’s viewpoint on vaccine and 5G network safety.

Lol. No. That’s not how any of this works.

Most of Kennedy’s anger is over what he considers to be a “falsely disparaging warning label.” Of course, out here, in the real world, that’s what’s known as protected opinion under the 1st Amendment.

As alleged supra, on September 4, 2019, after “several months of discussion” with the WHO (Vaccine Misinformation: Statement by WHO Director-General on Facebook and Instagram, supra, https://www.who.int/news-room/detail/04-09-2019-vaccinemisinformation- statement-by-who-director-general-on-facebook-and-instagram), Facebook published a Warning Label in bold black letters at the top of CHD’s Page, which states:

This Page posts about vaccines

When it comes to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC) has information that can help answer questions you may have about vaccines.

Go to CDC.gov

Remember: that warning is what Kennedy calls “falsely disparaging.” What is false in the statement? What is disparaging? All it does is add more information and recommend people visit the CDC website. That’s neither false, nor disparaging. We get that kooks like Kennedy think the CDC is a problem, but that doesn’t make the label either false or disparaging.

Hell, given that, in this very lawsuit, Kennedy whines that Facebook is against hearing all sides of an issue, it is totally laughable that their main complaint is that… Facebook suggests people research other viewpoints from those presented by Kennedy and his merry band of gullible idiots.

Facebook’s warning label conveys in clear terms to any user that what they see on CHD’s page is not reliable and not up-to-date, and it directs the user instead to “go to CDC.gov” for reliable and up-to-date “information” about vaccines. Any user visiting a webpage scans the immediately-visible content before scrolling down to view the remainder of the content. Consequently, the top banner space of any webpage is valuable “screen realestate” where prime content can be shown. Facebook’s intended effect is to deprive CHD of this screen space and to redirect users away from CHD’s page to the CDC website.

Yeah, well, if you don’t like it, don’t spread debunked nonsense. Also, it does not convey that at all. That’s your own paranoia speaking.

Next, Kennedy gets upset that Facebook blocked a video of him ranting nonsensically about pharma giant Merck after their fact checking partners (co-defendants in the lawsuit) pointed out that the video was not accurate.

Facebook’s warning label on RFK’s January 15, 2019 videotape critical of Merck, Inc. was materially deceptive, in that the videotape is accurate with respect to its assertions of fact and is otherwise an expression of RFK, Jr.’s opinions, and not “False Information” as Facebook claims. Facebook’s warning label also omits material facts by failing to disclose its advertising-client relationship with Merck, Inc. See T. Staton, The top 10 pharma companies in social media, FIERCEPHARMA, https://www.fiercepharma.com/specialreport/ top-10-pharma-companies-social-media-0 (last accessed Aug. 14, 2020). Merck, Inc. is one of the top 10 social media spenders among pharmaceutical companies and heavily leverages Facebook as an advertising platform.

Facebook wasn’t removing the video because Merck is an advertiser. It’s removing the video because it’s kook nonsense, debunked by actual scientists. And even if it wasn’t, Facebook has every right to host what content it wants and not whatever RFK wants.

The lawsuit goes on and on and on whining about each time fact checkers called out nonsense and Facebook blocked videos. Again, Facebook has every right to do so. And then it complains about Facebook shutting down Kennedy’s group’s fundraising page and rejecting its many attempts to appeal that decision.

And then, of course, you get to the conspiracy theories. Because what else would you expect from a group deeply mired in spreading nonsense conspiracy theories, other than a lawsuit that spreads conspiracy theories. And so it is with Facebook supposedly “shadow banning” Kennedy’s group. Shadowbanning is the bogeyman of idiots online who insist there must be some grand conspiracy against them online when people don’t want to hear their nonsense. Shadowbanning, as a technique, is something that was tested relatively early on by Reddit, but which basically every online site that has experimented with it has found doesn’t do much and isn’t that useful. Idiots love to scream about how they were “shadowbanned” because it makes them seem like a victim when they can’t prove anything real happened. The “proof” here is that Facebook got a patent for moderating content.

On or about May 1, 2019, Facebook began covertly to demote and/or ban content (“shadow-ban”) that CHD posted to its Facebook page, effectively limiting its visibility and reach, and secondarily reducing ad revenue to CHD. Facebook owns a patent on social media shadowbanning. See United States Patent No. 10,356,024, Kanter et al. (Moderating content in an online forum), USPTO Patent Full-Text and Image Database, UNITED STATES PATENT AND TRADEMARK OFFICE (Jul 16, 2019), http://patft.uspto.gov/netacgi/nph- Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/searchbool. html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 (last accessed Aug. 15, 2020). The patent describes the mechanism by which shadowbanning is accomplished: In one embodiment, the social networking system blocks banned comments by analyzing the text of the comments. For example, if a comment includes a profane word, as provided in a list of banned words, the social networking system will not display the comment to other users of the social networking system.

Additionally, in one embodiment, Facebook also performs a “sentiment analysis” to identify whether a comment includes sentiment that is banned under Facebook’s community standards, e.g., derogatory racial epithets. Finally, Facebook’s patent permits it to train a machine learning classifier to block comments based on Facebook content moderators’ actions of manually deleting comments or unblocking comments in the online forum. In one embodiment, the blocked comments are not displayed to the wider community of Facebook users. However, the blocked comments are displayed to the commenting user and his or her friends within the social networking system. As such, Facebook’s software creates a simulacrum in which the “offending” user — here CHD — is not aware that their comment or content is not displayed to other users of the forum. Since May 2019, Facebook has utilized this deceptive scheme in order to covertly limit or block CHD’s content while misrepresenting the visibility and reach of that content to CHD itself, and misrepresenting the totality of CHD’s content to all third-party users.

Newsflash: just because a company got a patent, it doesn’t mean that it’s being used. And certainly not in the way that you think.

Then, hilariously, Kennedy points to a document revealed by a “whistleblower” (and, it should be noted that this “whistleblower” info came from… the less than trustworthy Project Veritas organization, which has a long history of totally misrepresenting things) that proves Facebook is (*gasp*) experimenting with methods to limit the spread of undesirable information. Why is this a surprise? Why do you need a whistleblower. I’ll tell you straight up that every such website is experimenting with such methods because that’s part of what they do. Yet here, Kennedy reveals two internal slides from a low level Facebook employee suggesting ways to deal with trolls by making things annoying for them. Let’s be clear, this is the kind of thing that every single internet website thinks about at one point or another, because dealing with trolls is a fucking nuisance.

There is no evidence that this was ever actually implemented. But discussing and brainstorming around these kinds of techniques happens all the time. But it really says something when Robert Kennedy Jr. looks at these actions explicitly targeting trolls and assumes “yup, that’s what’s happening to me.” It seems he’s admitting that he knows he’s a troll.

From there, the lawsuit attacks various fact checkers. It claims that because the French organization Science Feedback is paid by Facebook to designate certain pages as having “false” or “partly false” info, that the site has incentive to categorize sites like that… in order to generate content to their own sites. That is… again… not how any of this works. Do fact checkers sometimes make mistakes? Absolutely. But they’re not doing it to generate clicks.

Under this arrangement, Facebook pays Science Feedback to classify content, and Facebook flags content for Science Feedback to evaluate and classify as part of their partnership. Science Feedback is paid by Facebook to find false stories, and here willfully marked Plaintiff’s content as “false” or “partly false” in order to generate traffic to its website through the warning and link, and to further its contractual partnership with Facebook. The “fact-checking” system Facebook created encourages this type of mislabeling. The Science Feedback fact-checkers have an obvious incentive to categorize a post as “False” rather than an accurate but less damaging classification of “Opinion,” because that is the only way Facebook will insert the clear warning with a prominent link to Science Feedback’s oppositional article. Facebook deceives its users by materially misrepresenting that its “fact-checkers” are “independent,” contractually or editorially. Significantly, the arrangement also permits Facebook and Science Feedback to create categorical exemptions from “fact-checking” where it suits Zuckerberg’s political or other biases, e.g., the “opinion” exemption for climate science deniers.

After this there’s a long section repeating a bunch of debunked nonsense about both vaccines and 5G. And if you’re going to be one of those idiots in the comments arguing about this, just go away. You’re too stupid and ignorant to be on this site.

Finally, at page 87, we get to the actual claims. The first claim is that there are 1st and 5th Amendment violations… by the private company defendants (Facebook and the fact checkers). Again, that’s not how any of this works. They’re arguing that these are Bivens violations, which is a reference to the famous Bivens case that established a cause of action against the federal government. You might notice an immediate problem. Facebook and the fact checkers are not the government. Here, Kennedy completely tries to muddy the waters with an insanely confusing claim, arguing that it really is the government because of Schiff’s comments. But he’s not suing the government. This… is really bad lawyering.

The second claim is… Lanham Act violations. What the fuck…? They’re claiming that the anodyne messages on the top of Kennedy’s page suggesting people also look to the CDC website is “false promotion.” Really. I wish I were joking. Let’s just say, this is utter nonsense:

The Lanham Act is not strictly limited to conduct that is unfair to a direct competitor, if defendant is affiliated with a competitor. Here, it suffices that defendants have actively cooperated with the CDC and WHO, with whom Plaintiff competes in the marketplace of ideas concerning genuine scientific inquiry into vaccine safety, and that Plaintiff competes with defendants in that same marketplace with respect to 5G network safety. Facebook is engaged in promoting competitive products through its pharmaceutical manufacturer advertisers, and competitive services through its affiliation with the CDC and WHO.

I feel bad that a judge has to actually read this shit.

The complaint then argues that CDA 230 doesn’t protect Facebook… because of reasons that do not match what any court has ever said about 230:

In publishing its false “warning label” and “fact-checks,” Facebook has acted, and continues to act, both as an interactive computer service provider and as “content provider.” Section 230(f)(3) defines an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to content that a website service provider creates itself, or is responsible in whole or in part for creating or developing, the website is also a content provider. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc); Fraley v. Facebook, 830 F. Supp. 2d at 801-02. Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label and its other affirmative content-creation far exceed “a publisher’s traditional editorial functions,” Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that content-creation of question-and-answer-sets which the Ninth Circuit found sufficient in the Roommates.com case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to immunize “the creation of content.”) (emphasis added). Facebook has no immunity from liability for actionable harms arising from its fraudulent course of conduct.

And, there is a subtle point here that I will grant Kennedy. Section 230 does not protect the specific content of the warning label that Facebook applied to Kennedy’s page. It protects all of the moderation decisions, including the decision to put such a label on their page. But, what does protect the content is the 1st Amendment. There is nothing that violates any law for Facebook to recommend people visit the CDC’s website.

Kennedy then cites the President’s nonsense Executive Order on social media — which does not change the law in any way — as supporting this case.

Next up, Kennedy argues (you guessed it) RICO violations. And to that we’ll just respond with the necessary response from Ken “Popehat” White: IT’S NOT RICO, DAMMIT. It’s not. It’s not even close. There’s no conspiracy. There’s no enterprise. There’s no racketeering activity. The complaint argues that Facebook and Zuckerberg were trying to engage in a scheme to defraud through false or fraudulent pretense, but the only false or fraudulent pretenses seem to be coming from the plaintiff in this case.

The whole thing is insane. The lawyers (including Robert F. Kenney Jr., Mary Holland, and Roger Teich) should feel bad. This is not good lawyering. This is garbage. And, as filed in California, stupidly, it might even subject Kennedy and his group to California’s anti-SLAPP law, since they explicitly claim their complaint is with Facebook’s constitutionally protected speech suggesting people visit the CDC’s website. This case is likely to be thrown out, and it’s even possible that Kennedy will end up paying Facebook’s expensive legal bills.

(Check it out on the next page…)

Robert F. Kennedy Jr.’s Insanely Stupid Lawsuit Against Facebook

Federal Court: No, You Fucking May Not Force Your Way Into A Home And Strip Search Six Very Young Children
Aldi, Brewdog Brand War Ends In The Best Possible Way: Collaboration
Lindsey Graham Says We Need To Get Rid Of Section 230 To Sue ‘Batshit Crazy’ QAnon. That’s Not How Any Of This Works.

California Assemblymember Mark Stone, Chair of the Judiciary Committee, took the podium on Wednesday to advocate for HR 103, the resolution imploring the California Supreme Court to reconsider its bizarre decision side-stepping the petitions before it to close off any retroactive application of the new cut score.

Stone outlines the longstanding diversity issues with the California bar and the access to justice problem that an influx of highly talented attorneys — they would still have to have an absurdly high 1390 to be admitted under this plan — could address. But most persuasively he sits on the argument that the California bar already accepts five-year-old scores as fully valid and indicative of the applicant’s bar exam acumen, rendering it silly to deny entry to scores within that period that meet the new score.

Kevin Baker of the ACLU of California testified to the lack of diversity in the legal profession and the value of applying the new cut score retroactively. Improving diversity is, of course, one of the biggest advantages of opening up California’s bar exam threshold. Contrary to some of the dumber commentary out there, this isn’t “racist” or assuming that minority candidates score lower as much as recognizing that in any pool, minority representation will go up by absolute numbers if more people are accepted.

Cooley LLP’s John Crittenden, also an adjunct professor at UCLA School of Law, testified to the brain drain of the state’s old cut score detailing how one of his best students bolted to D.C. after failing the California bar and how his own son relocated to Oregon rather than deal with California’s protectionism. It’s just one more vector of evidence against the value of the bar exam — if attorneys go to other jurisdictions with lower scores and continue to excel at being lawyers then the bar exam has not only done nothing to protect the public, it’s actually done more to harm by depriving the public of talented advocates.

Evan Miller, a 2019 graduate, speaks for a lot of the California legal community when he says, “It almost feels unreal that a member of our state’s legislature is being so responsive to our problem” Still, he was a little concerned about the committee:

It was concerning to hear certain members of the committee making comments that showed they did not do their research on this issue. Especially when one member conflated it with the issue of reciprocity which is completely irrelevant. Although the majority of the committee that supported the resolution clearly knew what they were talking about.

Welcome to politics!

After the state supreme court’s order though, those ill-informed legislators are actually closer to the mark than the judges. So… count it as a win?

The video is available here and the discussion of HR 103 begins at 2:29:34.

Earlier: California Bill Recommends Lowering Cut Score Retroactive To 2015
California Supreme Court Refuses To Apply New Cut Score Retroactively

---

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.