Category: News Feeds

ACT I

(Phone rings violently.)

Lawgrad: Hello?

Bar Tutor: Hi, my name is Bar-Bree, I’m the bar exam tutor for your law school.  We couldn’t help but notice it is 9:05 a.m. and you haven’t logged in to the bar-prep course yet. Are you okay?

Lawgrad: Yes, I just decided to sleep in …

Bar Tutor: Oh. I see. You know the bar exam passage rates … I mean, your bar passage is important to us at the law school. We are calling you to offer encouragement and support. So if you keep sleeping in you are going to fail and we will all be very disappointed in you. Do you want that?

Lawgrad: Okay, okay! I just slept in today.

Bar Tutor: That’s how it starts. We monitored your Wi-Fi and noticed you were watching old episodes of “Ally McBeal.” That isn’t going to help.

Lawgrad: You … are monitoring my Wi-Fi?

Bar Tutor: Yeah, it’s in the bar prep course agreement. You didn’t read it, did you?

Lawgrad: Okay, I’m getting up.

Bar Tutor: Nothing too sugary for breakfast.

(Lawgrad takes a practice exam, scores a 65. Phone rings violently.)

Lawgrad: Hello?

Bar Tutor: Do you see why you shouldn’t sleep in? You have some work to do. I’m here to offer support and encouragement. Also, I’m throttling your Wi-Fi so you can’t watch Netflix. It’s in the bar prep agreement. And you had a DONUT. What were you thinking?

Lawgrad: Sigh. Wait, how did you know …

Bar Tutor: Again, if you read the terms, you know your alma mater can watch you take tests.

(Scene ends with Lawgrad banging head against the wall.)

ACT II

(Lawgrad is now taking the bar exam at the designated bar exam service center.)

Bar Exam Administrator: Welcome to the bar exam! This is a very profound moment in your professional lives. We will now commence with the dress code check.

(Inspection of bar examinees lined up by bar exam number begins.)

Bar Exam Administrator: Your bow tie is crooked.

Lawgrad: Why do I even need to wear a tuxedo for the bar exam? And why are all the women in formal wear?

Bar Exam Administrator: Please don’t ask questions. It goes against your character and fitness. But fix your bow tie. This is a dignified process, and you must dress professionally.

(Inspection completes, and the Bar Examinees await further instructions.)

Bar Exam Administrator: Okay, please assemble in your rooms. Each group of examinees is clustered by gender and height. Please take your assigned examination seats after completely removing your clothing.

Lawgrad: What?????

Bar Exam Administrator: You heard us. How can we monitor for cheating if you all have clothes on?

Lawgrad: What kind of desk chair is that? It looks like a toilet.

Bar Exam Administrator: It’s dual functionality!  We found that people cheat during the bar exam. So we’ve decided to install dual-functional seats, for waste and for administering the exam. Did you not get the notice about not bringing toilet paper? We will provide a single sheet. Sorry, still no feminine hygiene products after the great tampon scandal last year.

Lawgrad: I heard it was just blood.

Bar Exam Administrator: Lies! We inspected it and determined it to be coded runes for the rule against perpetuities!

Lawgrad: This is sick! It’s demeaning! It’s unprofessional!

Bar Exam Administrator: This is to assure your professional competence. And National Board of Conference Examiner profits!

(Bar Examinees take seats.)

Bar Exam Administrator: Okay, thank you for taking your seats. Please always keep your eyes on the desk. Do not move your neck for any reason to assure you are not subject to review and to respect the privacy of anyone going No. 1 or No. 2 during the exam.

Lawgrad: What if we need more toilet paper?

Bar  Exam Administrator: You can use the provided scrap paper, but it must be turned in at the end of the exam.

Lawgrad: Sigh.

Bar Exam Administrator: No sighing. We think that taking in extra oxygen is cheating. That’s why we stopped asthmatics from taking albuterol.

Lawgrad: But that just allows asthmatics to breathe equally.

Bar Exam Administrator: Ridiculous. Next you’ll want to take it, too. Doctors will prescribe anything.

Lawgrad: Isn’t that against their professional ethics?

Bar Exam Administrator: Yeah, we don’t believe those do anything.

(Scene fades, with bar examinees starting day one of the exam.)

You might think I’m exaggerating. But how close to this are we already? And for what purpose?

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at lawprofblawg@gmail.com.

The United States Supreme Court ruled Monday that the structure of the country’s patent adjudication tribunal was unconstitutional but declined to eradicate it, instead sending the medical device case at issue to the U.S. Patent and Trademark Office director for further review.

The case centers on whether the decisions of Administrative Patent Judges (APJs) are constitutional under the appointments clause.

In its ruling, the majority held that because APJ determinations during inter partes review (IPR) were not reviewed by the tribunal’s presidentially appointed director, their authority was “incompatible with their appointment by the Secretary of Commerce to an inferior office.”

SCOTUS’ solution? Make sure that someone appointed by the president can overrule their decisions. The justices’ choice? The USPTO director.

“In the end, seven justices said they agree with the court’s proposed remedy, so that is the part of the decision that will have lasting impact: The director now has review authority over all written decisions that PTAB will put out in inter partes reviews,” said Christopher Ricciuti, partner at Oblon, a law firm specializing in intellectual property, in a phone interview. “What remains to be seen is how and how often that power will actually be used.”

According to the justices’ opinion, Smith & Nephew, Inc., and ArthroCare Corp. petitioned for inter partes review of an Arthrex, Inc., patent, and three APJs found the patent invalid. Arthrex appealed, claiming the structure of the PTAB was unconstitutional under the appointments clause.

The Supreme Court has ordered the present case be sent back to the currently acting director, Patent and Trademark Office Commissioner Drew Hirshfeld, for review.

In doing so, it gave Hirshfeld and his followers the authority to review all cases that go through the tribunal moving forward — most notably, its cases centering on inter partes review.

Through inter partes review, PTAB allows companies to challenge existing patents outside of the lengthy patent litigation process by asking the tribunal to reconsider whether they satisfy the requirements that inventions be “novel” (new) and “nonobvious” (i.e., difficult for the average person to come up with on their own). This process has invalidated over 2,000 patents since its inception in 2011.

The ability to do this has been a crucial tool for generics and biosimilars companies seeking to challenge brand medicines’ monopolies without placing their own infringement at issue.

But the question of whether PTAB’s administrative judges are allowed to issue such determinations at all has lingered.

Adjudicating Above Their Constitutional Station

As the court explained in its decision, the APJs were making decisions that should lie with “principal officers.” The problem there is that principal officers must be appointed by the president under advice of the Senate, according to the Constitution’s appointments clause.

The clause allows Congress to assign appointment of “inferior officers,” but those officers are not politically accountable and should therefore have their decisions reviewed by someone in the president’s chain of command, according to the Constitution.

At the PTAB, judges are chosen and overseen by a director who is selected by the president. However, their decisions, which the court called “the final word in the executive branch,” are only reviewed by their fellow APJs, not the director.

“This restriction on review relieves the director of responsibility for the final decisions rendered by APJs under his charge,” the court said.

Chief Justice Roberts delivered the majority opinion, joined in parts I and II by Justices Alito, Gorsuch, Kavanaugh and Barrett, but dissented to in part III by Justice Gorsuch. Justice Breyer issued a separate decision concurring in part and dissenting in part, joined by Justices Sotomayor and Kagan, and Justice Thomas dissented, joined by Justices Breyer, Sotomayor and Kagan as to parts I and II.

The Key: Finality of Decision-Making

The court analyzed its decision on whether PTAB administrative judges were principal or inferior officers based on its prior ruling in Edmond v. United States, which required them to be directed and supervised by someone appointed by the president.

While the Federal Circuit had focused on the director’s role as a supervisor and advisor, SCOTUS said the key to making this determination is where final decision-making power lies. The court looked to its own precedent in Edmond to say that IPR judges were not, at present, acting as inferior officers because their determinations were not evaluated by the tribunal’s director, who is an executive officer.

In their March arguments before the court, the government and Smith & Nephew reasoned that the PTAB director held soft power through the ways they could influence IPR: The director could hire APJs predisposed to deciding “in his preferred manner,” for example.

But, the court countered: “Such machinations blur the lines of accountability demanded by the Appointments Clause and leave the parties with neither an impartial decision by a panel of experts nor a transparent decision for which a politically accountable officer must take responsibility.”

“APJs exercise executive power, and the President must be ultimately responsible for their actions,” the court said.

The Federal Circuit’s Solution? Threaten to Fire Them

The court below wanted to solve the problem by invalidating APJs’ existing tenure protections, saying the Secretary of Commerce could fire them at will.

But SCOTUS said this failed because the Secretary was only allowed to terminate them “for such cause as will promote the efficiency of the service,” not because she disagreed with their rulings.

“The most important practical result of Arthrex for the PTAB’s day-to-day operation is that the tenure protections of administrative patent judges are restored,” said Saurabh Vishnubhakat, a professor at Texas A&M Law School, in an email. “Even for those who thought a constitutional problem existed, making impartial adjudicators decide cases under a cloud of political removal hardly seemed like good public policy — at most, it solved one problem while creating another.”

The High Court’s Fix

To remedy the situation without eradicating the PTAB, the Supreme Court sent Smith & Nephew and Arthrex’s case to the United States Patent and Trademark Office (USPTO) director for review. It further gave the USPTO director power to “issue decisions himself on behalf of the Board,” moving forward.

Notably, while this remedy seeks to maintain the political accountability required in the appointments clause, the current acting PTO director, Drew Hirshfeld, was not politically appointed. Nor is he officially “acting,” according to the Biden administration. He is simply “performing the duties and functions” of a director since Trump-appointed director Andrei Iancu left the position in January, according to an email obtained by Bloomberg.

Still, the court refers to him as “acting director” and is giving him the power to decide whether to rehear Smith & Nephew’s petition, along with a number of others waiting in the wings.

“I expect the director will have the opportunity to decide whether to rehear a number of other cases that were previously remanded to the PTAB and stayed (which had left the status of those patents in limbo pending a decision in Arthrex),” said William H. Milliken, a director at Sterne, Kessler, Goldstein & Fox who issued the firm’s client alert on the case. “However, the mechanics of this review process remain to be seen.”

A Fix With Its Own Potential Problems

“My observation of the USPTO is that in the past, you had the people doing the work on the merits, the APJs, and then the director working on policy objectives — he would never delve into the weeds on the merits of any matter,” said Ricciuti, the Oblon lawyer. “Not only is the director going to be making the policy decisions, but the merit decisions at some level will also rest with the director.”

This seemingly procedural change could raise the stakes on the appointment of USPTO’s next director, Ricciuti explained.

“This decision makes the choice of USPTO director more political: It potentially allows for more lobbying, with interested parties making sure the person is aligned not only on high-level policy but on particular decisions,” Ricciuti said. “There are stakeholders that get their claims brought before PTAB a lot and they might have an interest in swaying the choice of director.”

Recently, top members of the House Subcommittee on Courts, Intellectual Property and the Internet expressed concern with the idea that the USPTO director held such a wide, implicit scope of influence over APJ decisions without the legal authority to do so. The Supreme Court just rendered that power explicit — and legal.

“For those that want to see politics taken out of patent adjudication and protect APJ impartiality, I don’t think this decision necessarily helps,” Ricciuti said.

Smith & Nephew declined to comment on the ruling.

The case is United States v. Arthrex, — S.Ct. — (2021)

The story was updated with a response from Smith & Nephew.  

This should be a wake-up call to partners everywhere: the cost of not enhancing the value proposition for associates can now be quantified as the multiyear decline in PPP resulting from this latest transfer of monies from partner profits to fixed associate comp.

— Law firm strategist Hugh Simons, commenting on the fact that there are other ways to attract and retain associates, aside from huge salaries. Perhaps if associates had been offered other perks, they’d be more inclined to remain with their current firms than enter the lateral market.

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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.

A top Am law firm focused on litigation is seeking a mid-level IP litigator with strong writing, analytical and research skills. Must have 3-4 years of experience managing discovery and involved with taking/defending depositions and engaging in motion practice. Must have a technical background and/or experience in litigation in the life sciences, computer sciences or electrical engineering areas. Must have comparable big law firm experience and excellent academic credentials. Position is in Palo Alto. To be considered, please submit your resume to jobs@kinneyrecruiting.com.

A lot of law firms have adopted law practice management software, in order to more effectively manage their clients, but attorneys still pay very little attention to managing leads.

Even so, law firms that track and follow up with leads more effectively close more business. 

So, what gives? The fact is that most lawyers don’t understand how CRM software works.

In the latest Non-Eventcast, host Jared Correia discusses what CRM software is and does with Erik Bermudez, Vice President of Strategic Partnerships at Filevine.

The conversation includes the biggest challenges law firms face and real life examples of how your firm can maximize lead engagement — and ultimately win more business.

Highlights

• CRM: Customer Relationship Management Software – 1:40
• What allows a CRM – 2:05
• CRM are cloud-based – 2:22
• A lot of law firms are not using CRMs – 2:55
• One of the biggest challenges that they have – 4:18
• Having a CRM in place – 7:19
• How legal operates – 10:13
• Managing your leads better – 13:45

It was just yesterday afternoon that we listed the few Am Law 50 firms that had yet to match the new $205K salary scale, and today, we’re now able to cross yet another firm off that roster. “Arnold & Porter finally matched the market,” one relieved associate told us.

Welcome to the club, A & P!

The firm landed at No. 46 in the most recent Am Law 100 ranking, bringing in  $961,900,000 gross revenue in 2020. That sum is apparently more than enough to support new wages for associates and senior associates, because this is what the firm’s pay scale will look like as ot July 1:

• 2021: $202,500
• 2020: $205,000
• 2019: $215,000
• 2018: $240,000
• 2017: $275,000
• 2016: $305,000
• 2015: $330,000
• 2014: $350,000
• 2013+: $365,000

Congratulations to everyone at Arnold & Porter!

(Flip to the next page to see the full memo from Arnold & Porter.)

We depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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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.

Everyone who has spent some time in Biglaw knows it takes more than just associates to make a successful firm. There’s an entire infrastructure in Biglaw, though sometimes, with all the excitement surrounding associate raises, it can be easy to forget that.

One firm that hasn’t forgotten all the people it takes is Sheppard Mullin. The firm recently announced a recognition bonus for staff attorneys and special counsel. The bonus will be equal to 8 percent of their annual salary and payable in November.

Let’s hope this becomes as big a trend as associate raises.

You can read the full memo on the next page.

Remember everyone, we depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Raises”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Associate compensation is going through the roof with more and more Biglaw firms stepping up to the plate and handing out big bucks to associates.

Steptoe & Johnson is currently ranked 97th on the Am Law 100 taking home $393,914,000 in gross revenue last year. And the firm is showing that’s more than enough to keep up with the generous raises making their way through Biglaw.

As of July 1, the following compensation grid will be in effect at Steptoe:

You can read the full memo on the next page.

Remember everyone, we depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Raises”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Every raise cycle brings excitement and congratulations for associates and frowns and consternation for counsel. If raise announcements even acknowledge the existence of counsel, it’s to say that counsel will be hearing about compensation individually… eventually. Not exactly encouraging.

Sometimes this works out to counsel earning less than senior associates.

We’ve now heard from Shearman & Sterling, and it’s a match of the new associate scale as expected. But there’s one exciting tidbit for the counsel.

First, the grid:

As usual, counsel are not included in that grid, but the memo takes the extra step of acknowledging the firm’s counsel as human beings and professionals:

We are committed to attracting and retaining the best associate talent. In this regard, we will also be increasing our counsel base salaries by $15,000.

Great news! And recognition that treating counsel right is key to recruiting the best associate talent. Not to crib from an NCAA commercial, but there are a lot of Biglaw associates and most of them are going pro as something other than a Biglaw partner. Demonstrating that the firm will honor loyal senior attorneys in the counsel role sends a positive message to associates about the place.

Congratulations to all.

Please help us help you when it comes to salary news at other firms. As soon as your firm’s memo comes out, please email it to us (subject line: “[Firm Name] Salary”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

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

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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.

It’s only the second full week that Biglaw’s summer 2021 raise season has been in effect, and everyone is trying to get in on the action, even boutique law firms. This time around, it’s Ross Aronstam & Moritz, a Delaware litigation firm founded by lawyers from Wachtell, Weil, and Kellogg Hansen. This small, specialized firm has been paying out big-time salaries to its attorneys for quite some time — and now it’s on board with a Davis Polk match.

Here’s what salaries for associates at Ross Aronstam will look like as of July 1:

• 2021: $205,000
• 2020: $205,000
• 2019: $215,000
• 2018: $240,000
• 2017: $275,000
• 2016: $305,000
• 2015: $330,000
• 2014: $350,000
• 2013: $365,000

Back in April, the firm announced special bonuses in line with those that dominated the market. Check out the firm’s bonus scale, below:

Congratulations to everyone at Ross Aronstam!

(Flip to the next page to see the full memo from Ross Aronstam & Moritz.)

We depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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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.