Category: News Feeds

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

According to data collected by Law.com for the 2020 Am Law 100 ranking, Wachtell comes in first at profits per lawyer (PPL) with $2.03 million in profits per lawyer. Which Biglaw firm comes in second by PPL?

Hint: Wachtell more than doubles the second place firm’s PPL, but that firm made a respectable $943,000 in PPL in 2019.

See the answer on the next page.

This past week saw the deaths of former Illinois Governor James “Big Jim” Thompson and former Finley Kumble partner, Steven Kumble. First, Thompson, who deserved the name “Big Jim” as he was 6’ 6″. As U.S. Attorney for the Northern District of Illinois, before serving four terms as governor, Thompson’s office prosecuted a variety of political corruption cases. He did not lack for case selection, given the Democratic machine that had run Chicago for years.

He was one of the reasons why I decided to go to law school. In 1973, I was in Chicago working as a radio news reporter. I covered the trial of then Seventh Circuit Judge Otto Kerner, former governor of Illinois, who was on trial for political corruption. Thompson represented the government, and Judge Kerner was represented by Paul Connolly of the D.C. firm, Williams, Connolly and Califano. These names won’t mean much if anything to millennials and those younger. Kerner was convicted.

To see Thompson and Connolly represent their respective clients was to watch grace in action, always courteous to each other, often deferential to witnesses, but I knew that I was watching masters at the game, and I decided that that was what I wanted to do, to try cases.

Steven Kumble was a partner of one of the very first large nationwide law firms in the ’80s. For those readers who are not of dinosaurial vintage, the name will mean nothing, but for those of us who practiced way back in the 1980s and before, the name meant something. Kumble was the managing partner of what was one of the very first “megafirms,” but the firm’s story was also a cautionary tale of what can happen when a big firm goes awry.

Finley Kinble grew and grew and grew, and at the end it had more than 700 lawyers, but its foundation wasn’t very solid. It crashed and burned toward the end of the decade, filing bankruptcy and then a subsequent liquidation. Was it a harbinger? IMHO, the firm did not have a particularly good reputation; the lawyers were not courteous (at least not in my experience here in Los Angeles); dealing with them was no fun. The firm ditched the collegial attitude, which had been the way of practice, for a contentious approach. In the end, that approach did not serve the firm well. Schadenfreude.

I often wonder if the megafirms of today have learned the lessons of Finley Kunble, especially in this teetering economy, where partners are clawing back work that they would have, in flusher times, given to associates. Remember it’s all about the billables. Always has been and always will be.

Why do you want to go to law school? Is this a good time to spend the next three/four years waiting out the economic mess learning how to lawyer? Are you willing to take the financial risk on an uncertain future?

The employment rate for lawyers in 2019 was the highest it had been since 2007. But 2019 is not 2020. Uncertainty looms large, not just in employment opportunities, but even if there will be bar exams in some states, and if not, how will the 2020 graduates get to practice. Diploma privilege?

Given the fiascos of summer 2020 bar exams to date, with Florida being the latest to crash and burn, I wonder if California will have same or similar issues with its bar exam, now set for early October. What happens if there are any glitches (and I would be surprised if there aren’t some snafus.) Is there a contingency plan?

And it’s not just the legal profession that is in a state of flux. There’s a cautionary tale in a New York Times media column about the slashing and burning of senior Warner Bros. executives. AT&T, which acquired Warner Bros. several years ago, has told these employees that the landscape has changed, they have been unceremoniously shown the door, and the new is not at all like the old. Streaming services now rule the landscape and the old Hollywood, the one of movie studios, is on life support. The days of the Hollywood moguls are history, as is the way it distributed content. Why do I mention this?

If you haven’t been paying attention to how the legal landscape has been changing and will continue to do so, you need to start paying attention now. The profession I joined more than 40 years ago is just about unrecognizable in many years. It’s rife with innovation. From the various forms of technology now available, artificial intelligence, alternative legal service providers, data analytics (?), even such prosaic things as office equipment and the ability to work from home (even before the pandemic), the delivery of legal services is now more competitive, more price sensitive than ever before, and changes will continue.

While the legal profession is not a declining industry in the way that Hollywood seems to be, if you are not willing to keep up with change, it will leave you in the dust of old law library books. (Remember those?) Make sure that your choice to go to law school is not just a place marker until things improve, a date yet to be determined. Don’t waste your time and money if it’s not something you really want to do. It’s never been an easy way to make a living and it will be even harder in the years ahead.

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

On one side, 14 of America’s largest companies; on the other, a scrappy small town attorney and the sister of an opioid addict.

This is the story of a fight between rural West Virginians and the drug distributors that profited from their suffering. At the center is an unfortunately dying breed: small town lawyers.

If we want to attract new lawyers to these rural legal deserts, it’ll take a larger policy response than tax breaks and student loan relief. Do we have the stomach for what’s really needed?

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Episode Resources:

ABA’s 2020 Profile of the Legal Profession
Death in Mud Lick

This past week, Debora L. Spar — Senior Associate Dean at Harvard Business School — penned an interesting opinion piece in the New York Times on the future of family structures, thanks to the emerging technology of “IVG.” What is IVG? Wait, hold on a second. I’m getting there. In the opinion piece, Spar posits that IVG “will dismantle completely the reproductive structure of heterosexuality.” Okay, you have my attention, Ms. Spar. Go on.

What’s The Latest Acronym All About? 

Since you’ve been patient, let’s back up and unpack the newest assisted reproductive technology acronym. With in vitro fertilization (IVF) eggs and sperm combine — outside of the body — to create an embryo that can be implanted in a uterus. Well, in vitro gametogenesis (IVG) is a little more mind-bending. In IVG, an ordinary adult cell, such as from skin or blood, is reverse-engineered to what’s called an induced pluripotent stem cell (iPSC), essentially, an initial embryonic stage of a cell before it becomes a spleen cell or toenail cell. iPSCs are then turned into eggs or sperm, and from there, regular IVF can combine the eggs and sperm into embryos.

Seems a little too futuristic? This latest technology has successfully taken mice cells, differentiated them into sperm and eggs cells, and created embryos, which later resulted in baby mice. Aww. This technology has also been used to create immature human eggs — not quite ready for fertilization, but definitely demonstrating potential in human cells. And this advancement has demonstrated potential to become a giant leap forward in technology. Not to mention the sci-fi futures we can imagine. Any cell, from anyone, can become a sperm or an egg? Wow. Once an effective artificial womb has been invented, our children will be ordering their own siblings from Amazon through the kitchen Echo.

The Dismantling Already Occurred

I agree with Spar that IVG technology, whenever it comes to fruition, will be a game-changer. But in some ways, the game has already changed. Spar argues that IVG will dismantle the reproductive structure of heterosexuality. But that train has left the station. IVF, and the increasing use, and acceptance of use, of donor, egg, sperm, and embryos, has already decoupled reproduction and heterosexuality. Not to mention that the law has generally moved in favor of supporting these changes, particularly in the United States and Canada. The law has increasingly evolved to acknowledge that parents do not need to be genetically related to their children in order to received legal acknowledgment and protection of their relationship.

If anything, IVG could push the dial back to intended parents being more often able to be genetically related to their children. The complications of donated gametes and embryos emerged because hopeful parents couldn’t use their own gametes and had to turn to other options for sperm or eggs. If there is an option for parents to use their own cells through IVG, the use of donated gametes will decrease, possibly and ironically returning more parents to the more traditional parenting arrangement of being genetically related to their children.

The Changing Family

The larger and more complex family structures that Spar refers to — with more than two parents — largely have already come about because of the use of donor gametes. We have seen jurisdictions like Ontario, Canada, allow a child to have up to four parents, and a number of states have recognized more than two. This is frequently because of donor gametes and the disassembling of the reproductive structure of heterosexuality. These arrangements are often a same-sex female couple or a same-sex male couple or both, that choose to have the genetically related donor-parent and their spouse or partner, all part of the supportive family structure raising the child. If two women or two men in a same-sex couple could choose to both be related to their child, they most likely would — assuming costs or other factors aren’t a barrier. That is likely to reduce some potential parenting groups back to two, versus increasing two-plus parenting groups, in contrast to Spar’s theory.

When Is The Brave New World Arriving?

While some accounts argue that IVG technology is only a few years off, others, probably more reliably, argue that with safety testing and other steps it is more likely 20 to 40 years off. With that timeline, I won’t close up my donor legal practice yet. But I will be watching with anticipation for the amazing new things we will be able to do in the future to solve current problems. And, unlike Spar, I’m not worried about a dystopian future. We already have the technology for that.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Another day, another Trump campaign lawsuit to force Americans to cast their votes in person during a viral pandemic.

Last week the campaign sued Pennsylvania alleging that ballot drop boxes violate the Equal Protection Clause. Yes, really.

The week before, the president called a mail-in voting law enacted by both houses of the Nevada legislature and signed by the governor a “late night coup” and filed a claim to have it overturned on grounds that it postponed the election by counting ballots received after November 3.

And now it’s New Jersey’s moment in the sun (or at least the orange glow of a tanning bed) with a lawsuit contesting Gov. Phil Murphy’s emergency executive order that ballots be mailed to every registered voter.

As in the Nevada suit, the New Jersey complaint points to a handful electoral fraud prosecutions as evidence that the crime is both widespread and hard to detect. Which isn’t entirely logical, but when you’re accusing your opponent of a “brazen power grab” to “dilute the votes of honest citizens and deprive them of their right to vote in violation of the Fourteenth Amendment,” fact-free histrionics are kind of the point.

Here again the Trump campaign makes the argument that mail-in voting, which is supposedly rife with fraud, violates the Equal Protection Clause by diluting the voice of “real” voters. To prove that fraud is endemic, the Trump campaign refers to an Asbury Park Press investigation which “found a full 2,460 active voters who had been dead for at least five years, and nearly sixty of them had apparently cast votes after they died.” No link is provided, but a simple Google search kicks up the source article which reaches the exact opposite conclusion, finding that voter fraud is vanishingly rare. Most of the cases kicked up by the Asbury Park Press when it compared the Social Security Death Index to the state’s voting rolls could be attributed to clerical error or mistake, such as a son with the same name as his father inadvertently voting under his father’s name.

Not that the Trump campaign would seek to deceive the court. Perish the very thought!

How does the existence of in-person “fraud” militate in favor of forcing voters to cast their ballots in person? The plaintiff doesn’t say! Nor does it explain how cases of vote buying under the state’s existing absentee ballot system will be prevented if Gov. Murphy were enjoined from sending out ballots to all voters.

But the campaign is certain that Murphy’s order is unconstitutional and violates the Constitution’s Elections Clause by usurping the power of the state legislature to determine the time and manner of elections. Murphy’s order specifically cites several different emergency powers conferred by the legislature, but none of those use the magic words “we hereby grant the governor the right to make voting safer during a viral pandemic which has killed almost 16,000 New Jersey residents already,” so obviously the governor’s move is an assault on the Constitution itself.

The order specifically attempts to prevent fraud by forcing those who do choose to vote in person to cast their ballots provisionally so their names can be compared to a list of ballots cast by mail, but here again the campaign infers sinister motive. In a Wall Street Journal editorial, deputy Trump campaign manager Justin Clark decries the relegation of in-person voters to “second-class status” and warns darkly — but without evidence — that “Citizens who want to vote in person face a real threat that their ballots won’t be counted.”

The pleading itself goes even further down the rabbit hole, with an exercise in bootstrappery that PROVES! … err “proves” that this anti-fraud protection measure actually violates the Equal Protection clause.

See, if every in-person vote is cast by provisional ballot, then more provisional ballots will be cast.

And if more provisional ballots are cast, not only will in-person voting take longer, but counting those votes will also be delayed. (Forget about the fact that lines will be shorter at polling stations because everyone will have already voted by mail, that’s not important now!)

And if there are lots of provisional ballots, “It will be impossible for county officials to properly inventory, transport, and canvass the massively increased volume of provisional ballots by the prescribed statutory process.”

And if counties are overwhelmed by all those provisionals, they will obviously resort to “arbitrary and varying procedures” to count the votes.

And if counties are taking shortcuts, then obviously they will do it willy nilly, which violates the Equal Protection Clause.

So obviously Democrats are trying to steal the state of New Jersey from Donald Trump, who lost it in 2016 by 14 points, by allowing voters to cast their votes by mail.

Complaint for Declaratory and Injunctive Relief [Donald J. Trump for President, Inc. et al v. Phil Murphy, et al, No. 3:20-cv-10753 (D.N.J., August 18, 2020)]

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

While there has been no shortage of reading material for copyright scholars and nerds during the prolonged pandemic pause, one opinion out of the Second Circuit stands out like a bandaged and bloodied thumb. The opinion is the brainchild of a brilliant jurist, and the analysis accurately addresses almost all questions at issue. But, one of the crucial conclusions reached was the wrong one, one that harkens back to the jurist’s earlier work, and one that will no doubt wreak havoc on artists trying to bring meritorious claims against evasive copyright infringers.

In Joseph Sohm v. Scholastic, Inc., a photographer sought to vindicate his rights in 89 photographs that he licensed to a book company. The book company completely disregarded the scope of the license and exploited the photographs in far more books than was agreed.

This was one of those copyright cases where it was almost undisputed that the artist’s infringement claim was meritorious, and the infringers’ attorneys were left scurrying for a loophole to slither through in order for their corporate client to avoid making proper payment to the artist.

And, with the aid of the Second Circuit, they found one. The license that allowed Scholastic to include Sohm’s photographs in its books was executed in 2004. Sohm, who was not privy to Scholastic’s sales records, did not discover Scholastic’s infringement for many years, at which point he filed his 2016 lawsuit.

In general, the Copyright Act’s statute of limitations is three years, and the clock starts running when the artist discovers (or reasonably should have discovered) the infringement. This “discovery rule” has been the law for a very long time, and was confirmed again by the Second Circuit in 2014 in Psihoyos v. John Wiley & Sons, Inc.

Scholastic, though, saw an opening. Seizing on dicta from the Supreme Court’s six-year-old Petrella v. Metro-Goldwyn-Mayer decision, Scholastic argued that Sohm’s damages should be limited to only those that accrued within the three years before he filed his complaint.

The Petrella opinion states that “‘[u]nder the [Copyright] Act’s three-year provision, an infringement is actionable within three years, and only three years, of its occurrence,” and that “the infringer is insulated from liability for earlier infringements of the same work.” Scholastic argued that Sohm should not be able to seek damages for the entirety of its infringement because it was “insulated” from damages flowing from any infringement that took place more than three years before the filing of the complaint. If the Second Circuit bought the argument, Sohm would be denied many years of rightful payments.

Most observers saw little chance of Scholastic’s argument succeeding. It was not a particularly creative or persuasive position, and it had been tossed up to check its sticking power by numerous infringers’ counsel since Petrella was announced in 2014. Almost every court to consider the argument rejected it as sounding as dicta, because as the court in Grant Heilman Photography, Inc. v. McGraw-Hill Companies, Inc. concluded, Petrella “was a case about laches, and the holding is limited to that issue.” Indeed, courts from New York, in PK Music Performance, Inc. v. Timberlake to Kentucky, in Mitchell v. Capitol Records, LLC, to Illinois, in Panoramic Stock Images, Ltd v. McGraw-Hill Glob. Educ. Holdings, LLC, and beyond all rejected the argument Scholastic made to the Second Circuit. Indeed, the cited dicta had only the most attenuated relationship to the actual issue before the Petrella court, which was whether laches is a viable defense in a copyright infringement case. (It isn’t.)

To be sure, Scholastic itself lost this very same argument last last year in another case, Menzel v. Scholastic, Inc., in the Northern District of California, with the court expressly rejecting the position Scholastic tried again at the Second Circuit. 

The argument also seemed doomed because in Petrella it was undisputed that the plaintiff filed her suit more than three years after she discovered the infringement, so the “discovery rule,” which allows full recovery by an artist who files her suit less than three years after she discovers the infringement, even if the infringement commenced more than three years ago, had no place in the analysis. In other words, Petrella was limited to the three-year window simply because she discovered her claim more than three years before filing her complaint. To be sure, the Supreme Court endorsed a copyright owner waiting years or decades to file so that “she can estimate whether litigation is worth the candle.” And Petrella never even sought damages outside of the three-year window.

Sohm presented the other side of the coin, as there was no evidence that Sohm had discovered his claims more than three years before filing. Thus, per the discovery rule, he should have been accorded the right to seek all damages related to the infringement. The Ninth Circuit, in Polar Bear Products v. Timex Corp. rejected any limitations on damages in similar circumstances, adroitly noting that “[i]t makes little sense … to bar damages recovery by copyright holders who have no knowledge of the infringement, particularly in a case … in which much of the infringing material is in the control of the defendant.”

Yet, the Second Circuit took the bait, with the Honorable Richard J. Sullivan concluding that Sohm’s claim for damages was limited to the three years before filing the complaint. It noted Petrella  held that damages “outside the three-year window” before the complaint’s filing could not be recovered, and that Petrella’s “plain language explicitly dissociated the Copyright Act’s statute of limitations from its time limit on damages.”

This seems erroneous. As discussed, it was undisputed that Petrella was aware of the infringement more than three years before she filed her complaint. Sohm was not. Thus, she could not recover beyond the three-year window, but he, per the discovery rule, could so recover.

And the “three-year window” discussed in Petrella simply referenced the default language in the Copyright Act, with said discussion expressly excluding the impact of the “discovery rule.” This rule, by its very nature, expands that window. It also takes a tortured reading to conclude that Petrella “explicitly dissociated” the statute of limitations from damages. Petrella addressed the laches defense and took no position on how the statute of limitations affected damages for those who discover the infringement within three years of filing their complaint.

One of Sullivan’s former S.D.N.Y. colleagues, in PK Music Performance, Inc. v. Timberlake, rejected this same argument, noting that Petrella simply recognized the injury rule and that it later acknowledges, in a footnote, that “nine Courts of Appeals have adopted, as an alternative to the incident of injury rule, a ‘discovery rule[.]’” Petrella then expressly held that it was not deciding the question of which rule should be applied. As such, it is simply not possible to read Petrella to require a three-year limitation on damages when applying the discovery rule.

Thus, the discovery rule should still stand and allow recovery of damages for infringing acts that occurred more than three years before the filing of the complaint in cases where the artist files her complaint within three years of the infringement’s discovery. Yet, Sohm creates a right without a remedy by precluding damages for those earlier acts that the discovery rule allows to be prosecuted.

Indeed, the Second Circuit strangely reads Petrella’s “analysis” of the discovery rule to allow only what is already allowed under the default language of the Act — three years of damages — and fails to acknowledge that the entire point of the discovery rule is to allow infringement to be prosecuted in full when discovered later than three years from its commencement.

In attempting to ascertain how the Second Circuit mishandled this issue, with a decision that places it in conflict with its own precedent and the precedent of other circuit courts, we may be wise to look at the personnel involved.

In Papazian v. Sony Music Corp., Sullivan, then sitting as a district court judge, was one of the vanishingly few judges persuaded by this three-year limitation argument. The reasoning in Papazian is opaque, but Sullivan there concluded that the Supreme Court’s references in Petrella to the “discovery rule” were dicta while the three-year limitation language was not.

Years later, Sullivan, now elevated to the Second Circuit, and via a twist of fate, ends up deciding this same question in Sohm. Consistent with his Papazian decision, he again holds that Petrella’s decision on laches should be expanded to address claims unrelated to laches and should limit damages for both those plaintiffs that earlier knew of the infringement (like Petrella) and those that did not (like Sohm).

By the numbers, Sohm was massively unfortunate to draw the only judge on the Second Circuit who had previously adopted this position. There is currently a petition for rehearing pending, which should be granted to rectify the apparent flaws in the panel decision. If not, the Supreme Court may be asked to clarify Petrella and address the conflict created by the Second Circuit’s new “three-year lookback” rule.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Last Thursday, Epic Games, creator of the hit game Fortnite, announced a discount for the purchase of V-Bucks — its in-game currency. For iPhone and Android smartphone users, you had to purchase the V-Bucks through its own payment portal instead of Apple’s App Store or Google’s Play Store to get the discount.

Both Apple and Google were not happy with Epic’s action because they claim that it breaches their contract. It states that apps must exclusively use Apple’s App Store or Google’s Play Store to receive payment from customers. The issue is that both stores charge a 30% commission from the sales price, which Epic has called a tax. Epic’s discount is essentially removing Google or Apple as the middleman.

As a result, Apple and Google removed Fortnite from the App Store and the Play Store. This means that the game cannot be downloaded for new users. And for those who already have the app installed on their phones, they cannot be updated automatically. While it is possible to download and install these games on the iPhone or an Android phone, it will have to go through several security checks before it is installed. Also, upgrading the software must be done through the creator’s website which is likely to make the process more cumbersome.

Epic Games responded by suing both Apple and Google for antitrust violations. While Epic is not seeking monetary damages, it is seeking an injunction ordering both companies to stop engaging in allegedly anti-competitive behavior, including forcing Epic to accept payment only through the App Store and the Play Store.

Soon after filing the lawsuit, Epic Games released a 40-second video parodying Apple’s iconic 1984 commercial. The video depicted Apple as the monolithic villain. They also issued a press release to their fans and to the news media. In essence, they anticipated Apple’s and Google’s response and chose to fight them. Epic Games is represented by the white-shoe firm Cravath, Swaine, and Moore led by Christine Varney, who was the former FTC commissioner.

The timing of this lawsuit is interesting as most of us are staying at home more often and playing a video game is one of the few ways we can enjoy ourselves without violating a governmental stay-at-home rule. And since many of us have reduced income or no income at all due to COVID-19, a discount on just about anything is welcome news.

But is Apple and Google’s behavior really monopolistic? I have my doubts.

Let’s first look at the 30% surcharge which does sounds shocking. But I don’t think it was because of monopolistic behavior. If you look at most smartphone apps, they sell for small amounts of money. Most are less than $10. Thus a 30% surcharge is not particularly painful. Any lower than that means that the commission margins will be so small that Apple and Google may not be willing to support these apps.

Also, while Epic Games is unquestionably providing its customers with a choice in payment, I am not convinced that this promotes competition that the antitrust laws were designed for. Epic Games controls how V-Bucks are created and spent. And the company alone sets the price. Apple and Google do not control the price of V-Bucks but instead charge a supplemental fee for using payment service. If Epic Games wants competition that benefits customers, shouldn’t it design a system that allows market forces to determine the price of V-Bucks? Since Epic alone creates and controls the price of the very currency they are trying to sell, it makes the company look more like the monopolist.

Next, Google and Apple must be allowed to control which apps should be approved in order to maintain the integrity and public reputation of their platforms. Otherwise, the flood of crap apps could result in people switching phones or damaging the smartphone market altogether.

A good historical example is the video game market crash of 1983. In the early years of the video game industry, sales of software and hardware were booming. But this resulted in companies quickly making poor quality games in the hopes they would sell. People complained about the quality and some of them switched to personal computers which did many other things in addition to playing video games.

When Nintendo revived the industry in 1987 with the introduction of the Nintendo Entertainment System (NES), one of the things the company did to avoid another crash was to control which games were playable on the system. They did this by including a “lockout” chip in the system which prevented unauthorized games from being playable on the NES.

Accordingly, Google and Apple should be allowed to reject substandard apps. This is particularly important when it comes to payment processing. If there are numerous payment processing apps that compete with the App Store or Play Store, eventually one or more will cut too many corners to save money. This means that payments cannot be processed reliably, or worse there can be a hack and credit card information can be disclosed to hackers.

And finally, since we are on the subject of payment processors, there is speculation that Epic Games is doing this to create and install their own alternative payment system on the Apple and Google phones. Other game companies can use this system to receive payments at a lower commission than Apple and Google. If this is the case, then why stop at a payment processor? They should just create a smartphone for gamers. The phone will have its own operating system that is more intuitive to gamers. And gaming “whales” that spend a lot of money on games like Fortnite should be eligible for a subsidy on these phones.

Epic Games’ battle royale lawsuit against Google and Apple will indeed be epic. But I think this battle should be decided by the players’ wallets and not in an antitrust lawsuit.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

[A]ssociates at Big Law have an advantage compared to a decade ago: job stability. Letting people go is expensive, and when business picks up and you are missing people, you now have to train someone from scratch. It is fair for associates to be concerned? Yes, but we need to keep things in perspective. Things could have been a lot worse.

— Professor Eli Wald of the University of Denver Sturm College of Law, commenting on the fact that Biglaw associates have largely lucked out during the economic downturn caused by the pandemic compared to what happened during the Great Recession when associates were subject to layoffs. Wald went on to note that associates shouldn’t worry about the pay cuts their firms have instituted since normal pay structures will likely resume in 2021.

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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.

With Election 2020 just a few months out and voter suppression efforts a great concern amid the continuing coronavirus crisis, it’s important for large law firms to do their best to make sure their employees perform their civic duty and vote and volunteer to help others do the same. Several law firms have already made commitments to do just that.

Earlier this week, Fenwick & West announced that it would be rolling out a Voting Rights Initiative where it would provide all employees with a paid civic holiday on Election Day, designed to allow employees the time to vote and volunteer. According to the American Lawyer, Mintz is doing the same thing, and will be giving all of its employees a paid day off to vote and volunteer to get out the vote on November 3. “It isn’t unusual for firms to give a couple of hours at the beginning or end of the day,” said managing partner Bob Bodian. “[B]ut I didn’t see anything where firms were giving the whole day.”

We’ve recently learned that yet another Biglaw firm will be closing its doors on Election Day to increase voter turnout. Orrick is instituting a day of service on November 3. Here’s an excerpt from an email about the the firm’s commitment to voting rights that was sent out earlier this week (available in full on the next page):

[T]o help ensure each of you and your families are able to vote – and to provide you with the option of doing a day of service – our firm will be closed in the United States on Election Day, November 3, 2020. If you decide to use the day for community service, please choose any kind of pro bono work or volunteerism that is meaningful to you (the needs are many and acute across our communities). For anyone who would like ideas for how to work on voter registration and poll access, we are collaborating with our Public Policy and Supreme Court & Appellate groups and Rene Kathawala to assemble a list of local opportunities and resources that we will share soon. Of course, you can do this service on any day (although November 3 is the day we will designate as off for this purpose). And, we would greatly value hearing from you about your volunteer experience and what you take away from it.

We hope that our collective efforts make an impact by helping to ensure the voices and votes of all Americans, regardless of political views or affiliations, are counted and heard.

As with most Biglaw trends, we’ll be tracking exactly which firms are giving time off for employees to do their civic duty. If your firm is giving time off for Election Day or otherwise supporting voting rights, 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).

(Flip to the next page to see the full email from Orrick.)

Mintz, Fenwick Announce Paid Day Off, Structures to Aid Voter Turnout in 2020 Election. Will Others Follow? [American Lawyer]

Earlier: Biglaw Firm Announces Election Day Will Be A Paid Holiday

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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.

If you’re a hedge fund or other such “sophisticated” investor and you hold nine figures worth of debt from a failing cosmetics company, it’s safe to assume that you know exactly how much money that company has in the bank. And so if you and your fellow creditors wake up one morning and find that company has repaid you more than twice that figure, it’s safe to assume that you’d assume something strange had happened. At least, Citigroup hopes you’d assume that, and then quickly return the money, because of course the bank did just that, paying off those hedge fund creditors in full almost immediately after it and Revlon, the distressed company alluded to above, were sued over that money, and the collateral backing it that Revlon had allegedly moved out of harm’s way.