Category: News Feeds

We’ve all learned a great deal more than we probably ever wanted to about our supply chains over the last few months—specifically, just how brittle and fragile they are, most especially those delivering toilet paper and face masks. Well, those newfound busybodies over at the SEC are also learning about supply chains, and how they are financed. As it turns out, this is often accomplished by something called, well, supply-chain finance: A bank or someone else pays a company’s suppliers, getting them a little bit less money than they’re owed in exchange for getting it to them a bit faster than otherwise, before turning around to the company and collecting the full bill. This seems like quite an important thing. But, as the SEC has learned, you’ll have a hell of a time finding anything about it in a company’s financials, and this strikes the regulator as something of a problem.

* Florida’s Supreme Court says Governor DeSantis overstepped his authority when appointing a jurist to the Supreme Court who wasn’t admitted to the Florida bar for the required 10 years. Seems like this should have come up in a background check… [Hill]

* Seventy-four people are now facing federal charges for protests in Portland, Oregon, that took place after the death of George Floyd. [Los Angeles Times]

* A top ethics lawyer at the Bush Administration is calling for an ethics investigation into Secretary of State Mike Pompeo’s speech at the Republican National Convention. [New York Times]

* A legal defense fund is being established for a teen accused of killing and injuring protesters in Kenosha, Wisconsin. [Daily Mail]

* A defense lawyer in the George Floyd criminal case is requesting a change of venue for the trial. Pretty sure everyone, everywhere has heard of this case. [ABC News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The polling gurus over at FiveThirtyEight pointed out that the NBA work stoppage last night — a response to the horrifying Jacob Blake shooting in Wisconsin — came as white support for Black Lives Matter is waning after soaring to all time highs in the immediate aftermath of the George Floyd killing. When protests broke out across the country over the killings of Floyd and Breonna Taylor, it really felt like something had fundamentally changed in America’s response to police violence. The numbers suggest that weeks later… not so much.

That may be a jarring introduction to a post fundamentally about a legal technology conference, but it sets the stage for one of the recurring idiosyncrasies of this year’s ILTA>ON show. The program already exists in a twilight realm, adjusting its forward-looking perspective to account for the changes brought on by the global pandemic. But part of parsing out what the post-COVID world looks like is figuring out what changes are going to survive the lockdown. There’s a lot of “even after a vaccine…” talk around this virtual conference and it got me thinking: do we really believe that things won’t go back?

For example, people are saying that even after a vaccine, people will still be reticent to pile into conference rooms to look at documents and courts will still be pushing status conferences to remote check-ins. And maybe that’s true, but I’m incredulous. I’ve seen far too many “gamechanging” events creep back to normality to put a lot of faith in the staying power of some of these changes.

Will people keep wearing masks after we’ve conquered this specific virus? Some will. For a month or so. But humans always revert back to complacency if given enough time. As unthinkable as it may be to imagine yourself sitting next to a stranger right now — unless you’re taking the Colorado bar exam, of course — in seven months you won’t think anything of it.

And that’s going to be the biggest challenge in untangling a path forward for legal technology. Working from home, in some form, is going to be more normal if only because lawyers will demand it and firms are going to want to cut back on office space. But we’re not going to see the normalization of a full-time work from home model.

When I was talking to Litera CEO Avaneesh Marwaha, he pointed out that the timing of the pandemic has really shaped how we look at working from home:

Apprenticeships are so important in this industry. It’ll be interesting to see how that evolves going forward. We all have a core relationship with our current peers — how is that trust established? Some form of blending is almost inevitable to build that trust when you hire 200 new people… how’s that going to work?

I’d never considered this before! We all went online with colleagues we’d worked with for at least six months. We knew how they operated, we knew their strengths and weaknesses. But new hires are going to arrive soon and then what happens? It doesn’t seem like a fully virtual orientation is going to fly. We’d already heard firms say that training could be impossible virtually, but just building professional trust is a whole other dimension.

Agglomeration effects are real and eventually firms are going to have to regroup in the office to take advantage of that energy. But how do we draw the lines? When is it acceptable to stay home in that world? How do we make the call without treading upon childcare or medical issues that shouldn’t factor into workplace scheduling? In a lot of ways, these are more important questions than whether or not remote collaboration is “here to stay.” It will be here to stay… but it’s going to look a lot closer to where we were in January than where we are now.

And embracing that backslide is going to be as important to charting the future as understanding the change of the present.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Earlier this week, a lawsuit was filed in the District of Utah’s Central Division by Chicora Life Center and its owner, Chicora Garden Holdings, against their former attorneys, K&L Gates. The billion-dollar firm faces allegations it used fraudulent techniques to boost its billables during a 2016 representation over a failed lease agreement. The complaint alleges the firm billed $1.6 million over six months, despite not being primary counsel on the matter.

According to the complaint, an attorney at K&L Gates told Chicora that the firm teaches an annual seminar to get lawyers to increase their billing. The ABA Journal details the alleged practices:

• Block billing, in which lawyers aggregate multiple smaller tasks into a single block entry. Such billing can inflate total hours billed to a client by up to 30%, the suit says, citing information from a State Bar of California arbitration advisory on detecting bill padding.

• Hoarding, in which an overqualified professional with a high billing rate retains work that could be passed on to lower-paid professionals. “Often, hoarding results in partners doing associate work, associates doing paralegal work, and/or paralegals doing clerical work,” the suit says.

• Multibilling, which occurs when multiple attorneys perform the same task or attend the same event when one lawyer could handle the task.

The complaint alleges that the majority of the drafting in the matter was done by Durbano Law, and K&L Gates was to review those documents. However, the lawsuit alleges, “K&L’s billing records show substantially more time billed for the very documents that Durbano Law initially drafted, with only minimal changes to the papers to show for it.” The lawsuit also says that the Biglaw firm’s “deceptive billing practices” intensified after the lead lawyer on the matter passed away, and a new lawyer took over lead responsibilities for K&L Gates.

As reported by Law360, the complaint also details K&L Gates’s alleged refusal to file an objection in a bankruptcy proceeding which left the company with a $3 million tax liability. The lawsuit alleges breach of contract, breach of fiduciary duty, fraudulent billing, and aiding and abetting a breach of fiduciary duties.

The firm has not yet commented on the lawsuit.

Read the full complaint below.

The pandemic has hastened many changes that were on their way in the legal industry. Law firm partners who once compared hours at the office are now embracing flexible work time, particularly as they witness rates of productivity outside of the office similar to those productivity rates at the office. Law firm owners are reevaluating whether the cost of overhead, such as the office lease, is necessary going forward, and they realize that profits may increase if they are willing to give up office real estate. Other law firm leaders are now forced to acknowledge that both male and female attorneys face challenges when they lack child care and, as employers, firms must permit greater flexibility or solve for the lack of child care in order to keep their lawyers billing.

These responses to the pandemic may create a more tolerable and flexible law firm work environment in the years to come. However, as cases continue to rise and plans to return to the workplace remain in flux, young lawyers should embrace this as a time to reflect on their career, the path they may be on, and the path they ultimately wish to pursue. Given the inevitable slowdown and resulting job losses, young lawyers would serve themselves and their colleagues well to proactively evaluate their careers and their firms sooner rather than later.

— words of wisdom from the Young Lawyer Editorial Board of the American Lawyer, where they encourage young lawyers to reconsider their career paths now that the coronavirus crisis has given them the unexpected chance to do so.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The Regents of the University of California, on behalf of the Department of Intercollegiate Athletics on its Los Angeles campus (UCLA) has sued Under Armour for more than $200 million in damages. The complaint, filed in the U.S. District Court for the Central District of California, argues that a financially troubled Under Armour is seeking to avoid its financial responsibilities to UCLA and is using the COVID-19 pandemic as a pretext to cause an early termination to the parties’ sponsorship agreement.

Under Armour has sought to prematurely end its 15-year agreement with UCLA based on three separate grounds, but the main cause for termination is that a “Force Majeure Event” occurred, which relieved Under Armour from any further obligations under the agreement. The Force Majeure Event — decisions by the NCAA and Pac-12 Conference to pause certain athletic events due to the COVID-19 pandemic — allegedly occurred for more than 100 days, which was a key term in the contract. The “Force Majeure Clause” of the contract contains the following language:

“If a Force Majeure Event continues for more than one hundred (100) days, either Party may terminate this Agreement with immediate effect by written notice.”

Separately, the “Force Majeure Event” provision in the agreement states that the event must be beyond the commercially reasonable control of Under Armour and “render the performance of this Agreement by the affected Party either impossible or impracticable.” As such, a review of California law on the subject of impossibility and impracticability may become important if the case is not resolved by the parties early in the pending dispute.

UCLA’s legal counsel certainly knows that a major focus on those two words is forthcoming and used a portion of the complaint to highlight its position on the meaning that should be provided to the terms in the contract.

“Under Armour was not entitled to terminate the Agreement simply because COVID-19 caused some disruption for more than 100 days,” the complaint states. “Under Armour’s mere dislike of the Agreement’s economic implications during COVID-19 did not mean that its performance under the Agreement was impossible or impracticable.”

California has codified its law of impossibility in Cal. Civ. Code § 1511, which includes excuse for performance of an obligation when it is prevented or delayed by an “irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.” This law may apply whether the performance was impossible or utterly impractical.

Under Armour’s biggest issue may be that it is bound by the specific language that it agreed to within the UCLA agreement. The analysis should not be based on whether COVID-19 rendered UCLA’s performance under the agreement either impossible or impracticable, but instead the allegedly affected party claiming that there was a Force Majeure Event. In this instance, it would be Under Armour tasked with the burden of showing that its own performance under the agreement (mainly, providing compensation to UCLA) was rendered impossible or impracticable. With a market cap of over $4.3 billion and continuing contractual relationships with other athletic departments, including Auburn and South Carolina, that would seem to be a tough argument for Under Armour to make. Those continuing relationships will likely be examined in determining whether the pandemic has truly caused an industry-wide impact for Under Armour, which appears to not be the case.

Ultimately, whether Under Armour’s performance was rendered impossible or impracticable should be a question of law for the court to decide as opposed to a jury, even though a jury demand was made by UCLA with the filing of its complaint.

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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.

Gavin Grimm can finally pee in peace.

Yesterday the Fourth Circuit ruled that it was illegal for schools to exclude students from restrooms appropriate for their identity, in a massive win for LGBTQ rights.

In holding that the Gloucester County High School illegally barred 2017 graduate Gavin Grimm from using the boys restroom, the court cited the recent Supreme Court decision Bostock v. Clayton County. Writing for a 6-3 majority, Justice Gorsuch authored the Bostock decision holding that discrimination based on sexual orientation or gender identity violates Title VII of the 1964 Civil Rights Act.

So, thanks, Justice Gorsuch!

Future law students will recoil in horror at the facts of the Grimm case. After his transition in 2014, Grimm used the boys restroom for several weeks without incident. But then a group of parents got riled up on Facebook and the school board met — without telling Grimm or his parents — to pass a new rule restricting restroom use to the gender listed on a student’s birth certificate.

Grimm could travel to the nurse’s office, or a few single-use stalls in the building for students with “gender identity issues,” which he characterized as a stigmatizing “walk of shame.” But at football games when the school building was locked, he had no appropriate bathroom at all. Grimm suffered multiple urinary tract infections and at one point became so depressed that he was hospitalized for suicidal ideation.

In 2015, the Virginia Department of Motor Vehicles issued Grimm a state ID as a male. In 2016, the state amended his birth certificate to identify him as male. But none of this was good enough for the school board, which continued to insist he was a girl and fought this case through 2020, three years after Grimm graduated, to avoid issuing him a high school transcript reflecting his appropriate gender.

In short, they were assholes. As the Fourth Circuit said in 2016, and the trial court affirmed in 2019 after the Supreme Court sent the case back for review in light of the Trump administration’s reversal of Obama-era guidelines ordering schools to stop being ghouls and just let the trans kids pee already. (This may be a slight paraphrasing of Department of Education language.)

But yesterday the court finally put an end to this madness. Noting that Grimm’s fellow students didn’t care what bathroom he used, and that it was only adults high on the fumes of their own prejudice “act[ing] to protect cisgender boys from Gavin’s mere presence—a special kind of discrimination against a child that he will no doubt carry with him for life,” the court ordered the school district to pay his Grimm’s legal fees and give him a correct transcript.

U.S. Circuit Judge Henry Floyd, writing for the majority, was keenly aware of the importance of this landmark civil rights decision.

The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past. Compare Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), and Bowers v. Hardwick, 478 U.S. 186 (1986), with Brown v. Bd. of Educ. of Topeka, 349 U.S. 294 (1955), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward. The district court’s judgment is AFFIRMED.

Because this was never about the children. They don’t care about who uses what bathroom, or gender pronouns, or the chromosomal makeup of their favorite YouTube influencer. The kids are more than alright, and if we can just stop trying to drag them back to the last century, we adults will be, too.

Grimm v. Gloucester County School Board [USCA4 Appeal: 19-1952, August 26, 2020]

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

The legal profession is usually extremely slow when it comes to the adoption of new technologies — or new anything, for that matter — but the coronavirus crisis has forced everyone to accept the way of the future much more quickly than expected. Remote work has been going smashingly well, prompting some firms to give up real estate and encourage office sharing between partners and associates. Other firms are rolling out new remote work policies for all employees that would allow them to work from home up to 50 percent of the time.

Remember when working remotely was frowned upon in Biglaw? Not any more. Linklaters has announced a global “agile working policy” that will allow all of its employees to work remotely 20 to 50 percent of the time, as long as their team members know their plans in advance.

“The COVID-19 pandemic and our enforced remote working experiment has given us an opportunity to take stock and revisit how we approach agile and remote working,” Andrea Arosio, managing partner of Linklaters in Italy and member of Linklaters’ Global People Committee, said in a statement. “Our recent experience has demonstrated that, whilst we are a people-focused business and collaboration is key, remote working has worked remarkably well and we can deliver high-quality work whilst working remotely.”

Perhaps you’re tired of your COVID quarantine. Under the new Linklaters policy, no one will be forced to work from home if they don’t want to. The firm is also open to exploring other options, like flexible start and end times and otherwise modified hours. “Being agile is essential to our business, meeting the needs of our people and our clients,” Arosio said. “We are committed to fostering our agile culture which encourages our people to develop working arrangements which suit their needs along with those of the firm and our clients.”

Is something like this going on at your firm? Please get in touch with us via email or text — tips@abovethelaw.com or (646) 820-8477) — and let us know. This could be a brand new Biglaw trend in the making.

Linklaters Rolls Out Permanent 50% Remote Work Option [Law360]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.