Category: News Feeds

Lawyers with clients in the consumer financial services sector know that regulatory, enforcement, and economic factors are constantly shifting — and this means there’s always something new on the horizon. With a new administration on deck for 2021 and the COVID-19 pandemic keeping a tight grip on the economy, there’s never been a better time to get an update from insiders.

Danielle Bersofsky Cohen, Senior Program Attorney with Practising Law Institute (PLI), spoke about the upcoming 25th Annual Consumer Financial Services Institute. This popular two-day program, scheduled to take place via live webcast December 7–8, features as faculty representatives from federal and state regulatory and enforcement agencies, experienced defense and in-house counsel, and consumer advocates.

The Trump administration brought changes to the leadership and priorities of the CFPB, FTC, OCC and FDIC and federal banking agencies. What are some of the biggest changes that practitioners in this area should be aware of?

The Consumer Financial Protection Bureau (CFPB) has changed its focus to resolving more matters through supervision rather than enforcement. It has also focused on clear-cut violations instead of using its Unfair, Deceptive or Abusive Acts or Practices (UDAAP) authority to create new requirements not expressly found in statutes or regulations. The Office of the Comptroller of the Currency (OCC) and Federal Deposit Insurance Corporation (FDIC) have taken a more bank-friendly approach to how they have used their National Bank Act (NBA)/Federal Deposit Insurance Act (FDIA) authority, and also seem to have been less aggressive in the use of their enforcement authority.

What is expected to change in the first months of the incoming Biden administration?

The leadership of the CFPB and OCC will fall under Democratic control, so the effect of change may be felt most immediately there. We will find out in the next couple of months how the party balance will shift among the Federal Trade Commission (FTC) Commissioners and at the FDIC.

All agencies may take a more aggressive approach to enforcement, particularly in the area of fair lending. It is anticipated that the CFPB will try to reinstate the ability to repay provisions in the Small Dollar Lending Rule. The CFPB may also try to make the recently finalized Debt Collection Rule more consumer friendly. It is also possible the CFPB will embark on a course to supervise installment lenders.

How has COVID-19 affected the industry?

The pandemic has caused the financial services industry in general to take a more conservative approach to implementing new products and making other changes due to the combination of economic uncertainty and staffing constraints. It has also resulted in new Fair Credit Reporting Act requirements.

Overall, we have seen a rise in state regulatory and enforcement activity, perhaps as a reaction to any perceived lack of activity at the federal level.

What are the main areas in which the risk of private litigation, including class actions, remains high?

The Fair Debt Collection Practices Act, Telephone Consumer Protection Act, and Fair Credit Reporting Act all remain very much on the radar. There is likely to be more litigation against creditors, particularly mortgage lenders, if the economy continues to be challenged. At this year’s program we will again hear from leading consumer advocates about the cases they have been working on and their litigation priorities going forward.

What are some key things that attorneys should know about technological innovations like Blockchain and their effects on the industry?

Technological developments such as the use of alternative data and the increasing prominence of online and mobile-app customer experiences raise new challenges, including Unfair or Deceptive Acts or Practices (UDAP), UDAAP, and privacy issues. Our program looks at the intersection between new technologies and new products and existing regulatory frameworks.

What makes PLI’s conference unique?

This is the 25th year PLI will be offering this conference, which has become known as the premier consumer financial services CLE program in the country thanks to our exceptional faculty who represent a wide range of perspectives. This year’s event will commence with a keynote address by former CFPB Director Richard Cordray, who released a book shortly before the pandemic took hold in the United States titled Watchdog: How Protecting Consumers Can Save Our Families, Our Economy, and Our Democracy. We will also feature an all-new one-hour panel addressing diversity and inclusion/elimination of bias issues in the legal workplace (one hour of this type of credit will be offered), and we will continue to offer a full hour of Ethics credit as well.

Click here to learn more and to register for the 25th Annual Consumer Financial Services Institute.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

There will be change. Change is hard. And it’s especially hard when we’ve got a model of a state-by-state licensing and testing process. It may not be possible to make everyone happy. But we have definitely listened and considered everything we’ve heard.

— Kellie Early, chief strategy officer for the National Conference of Bar Examiners, commenting on changes that will eventually be coming to the bar exam through the organization’s Testing Task Force. Early has hinted that the bar exam of the future will be computer-based and that lawyering skills, rather than rote memorization skills, will be focused on. “It will be different in what it tests and how it tests. I don’t think it’s going to be something that is unrecognizable to our stakeholders,” she went on to say. “But I think it will be more changed than potentially some people are expecting. We’ve heard that some people think [the Testing Task Force] is not going to lead to any change. To them I’d say: ‘I hope we haven’t spent the past three years and all the work and effort that has gone into this for naught.’”

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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.

In August 2016, National Football Museum, Inc., which does business as the Pro Football Hall of Fame, was sued in federal court after it canceled the scheduled Hall of Fame Game between the Green Bay Packers and the Indianapolis Colts, leaving ticket holders empty-handed. After more than four years since the original complaint was filed, the named plaintiff has finally received class certification, allowing the case to proceed toward a trial.

There are numerous interesting components to the case that has likely been forgotten by many based on the sheer number of years that it has remained pending. One such fact is that the named plaintiff, Carmelo Treviso, is represented by attorney Michael Avenatti, who is awaiting his sentencing for attempting to shakedown roughly $25 million from Nike.

However, the case itself revolves around an initially waged claim that National Football Museum, Inc. and the National Football League scheduled the 2016 Hall of Fame Game on an unsafe playing surface, they knew well in advance of the scheduled game that the field was unsafe to play on, they hid this important information from fans who had purchased tickets to the game and likely traveled from afar to witness the game in person, and these actions resulted in damages to those fans. The specific alleged damages are laid out on the fourth page of the original complaint. It states:

As a direct result of the incompetence of Defendants, Plaintiff and similarly situated fans have suffered damages including but not limited to: (1) the out-of-pocket cost of the tickets to attend the game; (2) lodging and travel expenses to attend the game; (3) costs associated with items purchased on the day of the game, including but not limited to items purchased while Defendants purposely concealed the fact that the game had already been cancelled; and (4) missed hours and days of employment for certain fans who took vacation to attend the game.

The case was initiated in the U.S. District Court for the Central District of California. In March 2017, after motion practice surrounding the defendants’ attempt to transfer venue, the court ruled that the plaintiff did not meet the burden to demonstrate the existence of personal jurisdiction concerning National Football Museum, Inc., and the case was transferred to the Northern District of Ohio, where it currently is being adjudicated.

An amended complaint was filed in 2018, but not before the parties agreed to terminate the NFL as a defendant in the action. That amended complaint replaced the original named plaintiff with the aforementioned Treviso and revised the defined alleged class to be certified as all persons who paid for and/or acquired tickets to the 2016 NFL Hall of Fame Game. One of the many affirmative defenses stated by National Football Museum, Inc. was that it was permitted to revoke the licenses granted to ticketholders as long as it offered a refund, which it did, and many individuals accepted the refund.

For the past two years, since the filing of National Football Museum, Inc.’s answer and affirmative defenses, the focus has surrounded the plaintiff’s effort to certify a class for the purpose of converting the case into a class-action lawsuit. In September 2018, the court initially denied the plaintiff’s motion, noting that the class definition included those who had already settled with National Football Museum, Inc. and that “the highly individualized nature of the damages sought by Plaintiff demonstrates the class issues do not predominate over individualized issues.”

In November 2018, the plaintiff made another attempt at certifying a class by way of filing a renewed motion for class certification and appointment of class counsel. The motion referenced the court’s prior conclusion that the numerosity, commonality, and adequacy components for class certification had been met, and thus focused on whether subclassing was necessary to establish typicality as well as how damages should be handled at trial. An amended motion was then filed on October 2019, almost a full year later, which directly responded to the court’s inquiry as to why a particular lawyer was believed to be adequate counsel to represent the potential class.

And here we are, almost a year after that amended motion was filed, with the court finally issuing an opinion and order that allows the case to be converted into a class-action lawsuit. The court was pleased that the plaintiff revised the class definition to exclude those ticket holders who had settled with National Football Museum, Inc. and suggested that the court consider certifying a liability-only class.

Maybe now, after over four years of the case pending in federal court, it will progress toward a trial.

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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.

Desperation is setting in over at the federal judiciary as leaked documents show the Administrative Office is trying to convince federal judges to make outrageously false claims to lawmakers in a last-ditch effort to save their PACER cash cow.

Over the last two years, folks have started to wake up to the fact that the PACER system that has nickel and — quite literally — dimed us all for decades is massive ripoff. A class action on behalf of pro se and non-profit litigants consistently disadvantaged by the high sticker price filing system prompted Judge Raymond C. Clevenger III to bark at the government attorney defending the 10 cent charge, “Do you have a lot of trouble answering questions generally in life or just when you come in front of the Court?” Congress even woke up from years of rubber stamping judiciary budgets to ask about PACER fees, prompting Judge Audrey Fleissig to make the implausible claim that the Web 1.0 system costs $100M/year to operate.

As everyone started digging into the PACER boondoggle it looked as though the judiciary used the revenue as a slush fund for projects beyond its authority to charge the fee to maintain the filing system. The Federal Circuit agreed with the plaintiffs but passed the issue to the legislature for a solution.

And, miraculously, Congress has one! The Open Courts Act is a bipartisan proposal to make PACER free so the public can access the documents its court system generates every day.

So, obviously, the judiciary is freaking out and trying to snuff out this threat to its stash.

The Administrative Office has sent out “talking points” to judges — obtained by Fix the Court — to get them to act as foot soldiers in the bid to save the system. I wonder if they sent this to Judge Clevenger, because he might have some choice words right about now.

Thank you for your interest and support of the federal judiciary. I am bringing to your attention our concerns that the [House/Senate] may give floor consideration to H.R. 8235, the Open Courts Act (“OCA”) during the lame duck session. The Judiciary adamantly opposes this bill.

• This bill would force the Judiciary to create a completely unnecessary new electronic filing and public access document system, estimated to cost at least $2 billion.

• To pay for it, litigants in civil and bankruptcy cases will have to pay double, triple, or even more in additional fees — just to file their cases in court.

• These new costs would break the financial backs of many litigants, essentially closing the courthouse doors and denying them access to justice.

There are a lot of frightening claims in there, but all of them flow from the claim that it would cost $2 billion to make a free, working database. A letter sent to the Judicial Conference chairs from leading technologists spills truth juice all over that wacky claim:

We are confident that under no circumstance would building and implementing the new system described in the OCA cost $2 billion or even several hundred million dollars. We estimate the cost to be in the $10–$20 million range over 36 months to build and then $3–$5 million annually to continue to develop and maintain.

Yes, a database hosting static PDFs does not cost $2 billion. Indeed, the entire Internet wouldn’t be feasible if costs ran that high. Wikipedia does its magic holding out a hat for $1 donations but a workable PACER would cost as much as a couple F-35s? Please.

To be charitable, as the experts envision a few million in annual maintenance, the system actually would cost $2 billion over a long enough timeframe. But that time frame is 400 years.

Asking federal judges to lobby Congress to save a judiciary slush fund is ethically dubious. As Fix the Court notes:

Judiciary policy states that judges should only lobby on issues they are “uniquely qualified to address” (p. 155) that would not compromise their impartiality (cf., Canons 3 and 4A[2]). But judges are not experts on modernizing government IT systems, and they are hardly impartial about preserving what’s widely considered to be the judiciary’s own slush fund, as PACER brings in more than $140 million annually.

On the other hand, there are now a bunch of federal judges who aren’t uniquely qualified to address much of anything and they’re out here explaining science to virologists and religion to the Pope so maybe this is all par for the course.

Earlier: PACER Is Getting Dragged And I’m Here For It
‘Do You Have A Lot Of Trouble Answering Questions Generally In Life Or Just When You Come In Front Of The Court?’
Appeals Court Confirms What You Already Knew: PACER Is A Rip-Off
Why The Federal Circuit’s PACER Ruling Is A Mixed Bag

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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.

The U.S. Supreme Court has curiously given a little too much attention to a case coming out of Indiana. Styled Box v. Henderson, the case involves eight same-sex female couples, who are either currently married, or who were married at the time that their children were born, and who brought suit in Indiana after one spouse of each couple was denied recognition as a parent on their child’s birth certificate.

Indiana law, like most states, has a “marital presumption of paternity,” which confers a presumption of parentage on the spouse of a woman giving birth. This was historically the husband of the woman giving birth, but states have updated their laws with the changing times, or at least their interpretation of such laws, to a gender-neutral stance. Most states that is. Except the Hoosier State.

Post-Obergefell and another case called Pavan, this case shouldn’t merit any attention whatsoever by the Supreme Court. It has already held that same-sex couples are entitled to marry and to enjoy the constellation of benefits that come with marriage — including parenting rights and identification on birth certificates. However, the Court went ahead and asked for additional briefing from the parties anyway. Right now, the case is scheduled to go to conference for a vote on December 11, 2020, on the issue of whether to hear the case.

What is Indiana trying to say? A lower court and the 7th Circuit Court of Appeals both found that Indiana applied the marital presumption to heterosexual couples regardless of genetic connection (aka if a sperm donor was used, the husband still gets to go on the birth certificate), and that the law was being applied in an unconstitutional discriminatory fashion by excluding same-sex couples. Despite this, the Indiana Attorney General has asked the Supreme Court to take the case, asking the Court to enable Indiana to exclude same-sex female couples from the marital presumption of parenthood.

It’s common sense! The Attorney General for Indiana argues that the state has a “biological” basis for the difference in treatment, and that the Supreme Court should know that its reasoning and arguments — despite seemingly nonsensical and difficult to follow at times — are common sense! We should be persuaded that they are common sense based on the repeated use of the term “common sense” in the Attorney General’s brief.

Confusingly, the Attorney General claims that the martial presumption does not, in fact, apply to a heterosexual married couple when a sperm donor is used. Instead, Indiana argues that any birth mom filling out a birth certificate application would know that she could not appropriately check “yes” to the question “are you married to the father of the child,” since her husband is not technically the biological father. I suspect, based on the court rulings to date in this case, that Indiana heterosexual couples who used sperm donors would be surprised to hear that they may have broken the law.

Is it really the child’s biological connections at issue? Adding to the confusion are Indiana’s arguments concerning one particular set of plaintiffs that conceived through reciprocal IVF — meaning one woman went through an egg retrieval, an egg was fertilized in vitro with donated sperm, and a resulting embryo was transferred to the uterus of her spouse. The woman who carried the child to birth is not the genetic parent of the child. So while the Attorney General argues that the state’s interest is in a simple and efficient process and of recognizing a child’s biological parents, in this couple’s case the state denied recognition of the genetic parent on the birth certificate. The State explained that birth mom cannot say she is married to the “father” of the child — since even though her spouse is literally the baby’s genetic mother, she is not the “father,” and therefore cannot be included anywhere on the child’s birth certificate. In this scenario especially, the State undercuts its own arguments that a child’s birth certificate should reflect the child’s genetic parents.

Time to cite the travel bloggers. It gets worse. Blowing my mind as to what constitutes support for a legal argument in a brief before the Supreme Court, the Attorney General’s reply brief cites a Florida man’s blog post as support for the only possible meaning of “father” as biological father. The “Dadtographer” posted on his cruise-review blog explaining the difference between a “Dad” and a “Father.” Dadtographer’s interview with his 9-year-old son is cute, and he makes a sweet point about a “Dad” being involved with his kids (and the article is popular online) — but does that actually support Indiana’s position? The author didn’t think so. Dadtographer himself, Daniel Ruyter, explained that he is very much for equal rights and protections when it comes to same-sex couples and parents. He opposed his words being used to limit the rights of any parent “no matter if they were in a traditional or nontraditional family relationship.”

We should be worried, but not panicked. The Court’s personnel have changed since its 5-4 ruling in Obergefell in 2015. Only three justices from the majority in that case remain on the Court. And even with Chief Justice Roberts’ apparent move toward Obergefell as binding precedent in Pavan, that still only gives the same-sex parents in this case four solid votes. So far, the Court has only asked the same-sex parents to brief the issue of whether the Court should hear the case in the first place. So maybe that’s no big deal. Maybe they will vote against granting it once they convene and have a chance to discuss it. Let’s hope they follow that course. Indeed, why waste time on a confusing, internally inconsistent birth certificate process in one state?

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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.

Krakens aren’t particularly successful.

As mythological creatures go, the Kraken is one of the big losers of the genre. The Midgard Serpent gets to live until the end times. Krampus is always there to punish naughty boys and girls. Even the very Kraken-like Cthulhu just gets to chill out in the lost city of R’lyeh. But the Kraken is always the loser. Tennyson said “In roaring he shall rise and on the surface die.” In Clash of the Titans, Harry Hamlin bested the Kraken with the help of a tragic haircut. The point is, Krakens aren’t actually indomitable forces of nature, but blustery spectacles that amount to minor speedbumps.

Sidney Powell has embraced the “Release the Kraken” catchphrase from that Hamlin film and is faring about as well as her cinematic counterpart at this point.

Yesterday, Powell filed a new lawsuit challenging the election results in Wisconsin on behalf of proposed Trump Elector Bill Feehan and local candidate Derrick Van Orden. This is the first point where things went off the rails:

That’s not a great start!

It wouldn’t get much better as one waded through the meandering conspiracy theory-laden complaint and tried to discern the requested relief:

Immediate production of 48 hours of security camera recording of all rooms used in the voting process at the TCF Center for November 3, 2020 and November 4, 2020.

The TCF Center is in Michigan. Maybe Wisconsin can ask them nicely for a copy.

Powell filed a simultaneous motion for injunctive relief. Today, Chief Judge Pamela Pepper issued an order on that motion and takes us on a wild ride.

The motion indicated that the specific relief the plaintiffs were requesting was laid out in an attached order. Dkt. No. 2 at 1. This language was highlighted and in a larger font than the rest of the motion. There was no order attached. At the end of the motion, under the words “Certificate of Service,” the following statement appeared (also highlighted): “This is to certify that I have on this day e-filed the foregoing Plaintiffs’ Motion to File Affidavits Under Seal and For In Camera Review with the Clerk of Court using the CM/ECF system, and that I have delivered the filing to the Defendants by email and FedEx at the following addresses:”. Id. at 2. No addresses were listed below this statement and no documents were filed under seal. There was no request for in camera review.

Surely there’s an explanation?

At 3:15 that afternoon, the plaintiffs filed another document. It appears on the docket as a motion to amend or correct, but the document itself is captioned, “Plaintiffs’ Corrected Motion for Declaratory, Emergency, and Permanent Injunctive Relief.” Dkt. No. 6. This motion indicates that the earlier motion was an inadvertently filed draft and acknowledges that the referenced proposed order had not been attached.

There we go. So now everything makes sense and we can move on to a hearing, right?

There is a proposed order attached to the afternoon’s amended motion. Dkt. No. 6-1. The proposed order asks various injunctions, declarations and orders. It does not ask for a hearing.

Uh oh. Can we at least entertain the motion?

Because the afternoon motion indicates that the plaintiffs “will” provide electronic notice to the adverse parties, the court does not know whether the plaintiffs have yet provided notice to the adverse parties or when they will do so. Until the plaintiffs notify the court that they have provided notice to the adverse parties, the court will not take any action because the motion does not comply with the requirements of Rule 65(b).

Emails are close to instantaneous, so that can be cured quickly and then we can move forward with this forthwith…

If the plaintiffs have provided notice to the adverse parties, under Civil Local Rule 7(b) (E.D. Wis.) those parties have twenty-one days to respond to the motion and under Civil L.R. 7(c) the plaintiffs have fourteen days to reply. While the caption of the motion includes the word “emergency” and the attached proposed order seeks an “expedited” injunction, neither the motion nor the proposed order indicate whether the plaintiffs are asking the court to act more quickly or why. As indicated, the motion does not request a hearing. It does not propose a briefing schedule.

Honestly, check out the whole order on the next page. At this point, Team Kraken should just provide boilerplate to plaintiffs acting pro se. At least then the courts would theoretically bend over backward to overlook the most glaring screw-ups.

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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.

2020 has been a helluva year. Even though the world is seemingly upside down, law school has trudged on. Sure, classes are online at a whole host of elite law schools, but issues will not spot themselves and the education of America’s next generation of lawyers has continued apace.

Much like in previous years, this year’s law schools somehow struggle to give students their final exam. Yes, it seems like a basic element of administering a course, but, well, pretty much every year Above the Law hears stories of exam debacles. From law professors reusing exam questions (a confoundingly common problem), to using shocking and tragic hypotheticals, to forcing students to defend segregation — well, a lot can (and does!) go wrong all the time. But it wouldn’t be 2020 without an extra special awful twist.

Around 6:30 p.m. last night, 1Ls in Professor Winnie Taylor’s section of contracts at Cornell Law School received instructions for the final exam scheduled for 9 a.m. the following day. The only problem? In addition to the instructions, the admin also sent along a copy of the exam questions. D’oh!

A few hours later, the issue was “rectified” with the announcement that Professor Taylor would have to re-write the exam and the exam would be pushed to 3 p.m. to accommodate the change.

Professor Taylor, some of you may remember, was involved in a bit of a situation last year when she re-used previous exam questions, leading a tipster at Cornell to quip:

Poor Winnie Taylor having to pull an all nighter like the rest of us.. guess she could always use the help of her previous exams.

It’s also striking that Cornell hit upon this particular solution to its problem. It assumes that their students’ schedules are open, save for exams. Of course — particularly in 2020 — law students could easily have other obligations (childcare or sick family members) that have to be scrambled at the last minute to deal with this mistake. Especially since the entire section received the exam questions, the same questions easily could have been used in a take-home / 24 hour format that would have afforded the students more flexibility.

But, alas. That wasn’t meant to be, and it fact — it got worse.

Tipsters report that at least one other section had THE EXACT SAME ISSUE.

The error by Cornell was not learned from as 30 minutes after the remedy email went out, instructions for another section of contracts were given out and the attachment for that instruction email contained… you guessed it: the Final exam questions. So after the previous effort to try and recall the email the first time, the registrar again tried to rescind the second official leak of the finals. However, it was too late and the mockery of this year multiplied as now 120 out of 180 first year students have seen the exam questions they are supposed to take in 12 hours. So, the fun of 1L during a pandemic, chaotic election, and doing it all under the fun of the curve has become an absolute joke of an experience for a T14 “elite experience.”

Wow. It was… quite the mistake the first time. After that, you just have to laugh at the incompetence.

So, in the end, multiple exams were spoiled by the school’s administration and have to be delayed and re-written as a result. I mean, this is the most 2020 thing ever. Good luck to those impacted. Hopefully dinosaurs don’t attack mid-exam.

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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).

Some time ago, someone I know posted a picture of himself at a pro-Trump rally. As with many of these events, most didn’t wear masks, and there was no distancing. Now, as far as I’m concerned, whatever people do is their own business, and they can live with the consequences. But what made his case special was that he was a nurse and should have known better. So I asked him why he was attending this rally knowing this could potentially be a health risk?

His response was that he did not believe the COVID-19 hype and that because of his faith, he is covered by the blood of Jesus.

For many people, including some Christians, the above response is cringeworthy and even dangerous during a pandemic. And this, along with the recent surge in cases and hospitalizations, is why some are calling for strict restrictions on religious gatherings or even a temporary ban. But the freedom to practice the religion of our choosing is expressly stated in the Constitution and many guard this right with the same passion that others would when defending the right to have an abortion. But why should religious organizations be treated more strictly than others?

This is partly because some of the earliest coronavirus outbreaks were traced to religious gatherings. Attendees can spread the virus by singing hymns, sitting in close proximity to each other, and socializing afterward.

Some have argued that religious gatherings are not as essential as businesses that provide necessary goods and services. After all, a benevolent, omnipotent, and omniscient god is likely to understand if worshipers cannot personally attend services.

Lastly, religious gatherings might encourage behavior that can spread the virus. There are people who continue to believe — as in my example above — that their religious beliefs will protect them from the virus. Or that the virus is an attempt by the government to suppress religion. Putting these people together could provide a safe space and legitimacy for their questionable beliefs.

Regardless of these concerns, any government regulations restricting religious activities must be mindful of the constitutional right to practice the religion of one’s choosing. While courts prefer to give deference to the legislature and public health orders shutting down or limiting business operations to contain the spread of COVID-19, they have warned that religious groups must have the same accommodations that are given to businesses that provide essential goods and services. If supermarkets, hospitals, mechanics, and banks are allowed to operate so long as they follow certain safety procedures, religious organizations should also be allowed to operate under similar guidelines.

Thankfully, there have been some progress. Since the beginning of the outbreak, religious organizations have changed how they conducted their services to meet health and safety guidelines. Many give virtual services online. Others continue to have in-person services although gatherings have been limited. Attendees are required to wear masks and socially distance themselves from others. And some have even allowed drive-through services where attendees stay in their cars.

Are religious services essential enough to require special accommodations? That depends on who you ask. Atheists and some believers will say it is not since they can worship safely through online services. But older people do not have access to the internet or cannot use it because they are happy with their Apple IIe or their PCs running on Windows 95 and an Intel Celeron processor. And the devout believe that congregating with others who share their values and faith provides relief from the sense of prison-like isolation.

As for the people who think that prayer and faith will shield them from the coronavirus, according to science, they are misguided. Today, being covered with the blood of Jesus will not protect you from evil. It will make you a murder suspect. God, Jesus, and deities of other major religions have been hiding for the past several centuries. In the modern era, they may be playing more of a behind-the-scenes role. But we have not seen anything that defies the laws of physics and suggests a divine presence, such as spontaneous burning bushes (except on occasion in Southern California), or anything resembling the plagues of Egypt from the Old Testament. No one in modern times has been able to turn water into wine or feed 5,000 people with five loaves of bread and two fish. If someone today claims to have seen or spoken to Jesus, even religious leaders would recommend seeing a psychiatrist.

Would the presence of people like this justify shutting down or limiting the number of people who can attend service? It is possible but it would depend on how much influence these people have on the general congregation. So long as they are a small extremist fringe, and the pastor withholds the wine during communion, it’s likely that services won’t be forcibly closed.

I was raised Christian so I believe Jesus was real and someday there will be a real-life sequel of the Passion of the Christ. Or better known as P2: Judgment Day. While we live in the age of science, religion provided the basic moral codes which became the foundation for modern society along with the technological advances it brought. I like to believe that religion and science can co-exist since both seek to find the truth. But there are those who strictly want a separation of church and state. The founding fathers understood the importance of practicing the religion of one’s choice. And over the centuries, many immigrants fled to the United States for this reason.

But this freedom is not absolute. Reasonable accommodations should be given for religious services during a pandemic. But if the virus continues to spread, our right to not be placed on a ventilator at a hospital ICU comes first.

If this controversy interested you, the Westside Bar Association is hosting a virtual MCLE event this Thursday evening featuring prominent scholars and civil rights leaders with much more knowledge on constitutional law. Speakers include Alan Dershowitz, Erwin Chemerinsky, Noah Feldman, Susan Herman of the ACLU, and Professor Kim West-Faulcon. The panelists will discuss upcoming and potential constitutional issues the government will face in 2021. Registration is free (Zoom access required) and California attorneys will receive two hours of MCLE credit for attending.

Hope to see you there. I’ll be hiding along with God and Jesus.

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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.

It’s easy to become jaded during Biglaw bonus season. Yes, there are so many firms giving out huge bonuses, but Biglaw likes to play follow the leader. So, it tends to be the same numbers (which, were also the same scale as last year — and well, every year since 2014) over and over. But it represents a lot of hard work — and billable hours. And the industry-wide transparency created by sharing each bonus announcement (and any stipulations that accompany it) helps law students looking to start their careers in Biglaw and those that find themselves on the lateral market.

Now Willkie has announced year-end bonuses, and yes, because of course, they are matching the prevailing market rate. The bonus scale is as follows (you can read the full memo on the next page):

Class of 2019: $15,000
Class of 2018: $25,000
Class of 2017: $50,000
Class of 2016: $65,000
Class of 2015: $80,000
Class of 2014: $90,000
Class of 2013+: $100,000

Year-end bonuses will be paid on December 18th.

Back in October, Willkie was among the Biglaw firms blowing off Cravath’s decision to wait on special fall bonuses (though Cravath eventually made their associates whole) and they went ahead and handed out COVID appreciation bonuses. Those special bonuses range from $7,500 to $40,000, depending on class year, and are in addition to the year-end bonus numbers. So yeah, Biglaw associates have a lot to be thankful for!

As always, we depend on you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) 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 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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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).

Back in September, Davis Polk really raised the bar on special bonuses, offering associates up to $40,000 based on class year in recognition of their hard work throughout the pandemic. These bonuses weren’t consequential for Davis Polk associates alone — now almost all firms have adopted the Davis Polk special bonus, lest they be left in the dust when it comes to offering market compensation.

And now, the top 20 Am Law firm that brought about 2020’s bonus big boom has announced its year-end bonuses. Unsurprisingly, the firm has matched the prevailing market rate that was first announced by Baker McKenzie and later echoed by Cravath. Here’s the Davis Polk bonus scale for 2020:

Year-end bonuses at the firm will be paid on December 15. Congratulations to everyone at the firm on a great year. Davis Polk certainly have the thanks of almost every other associate across the Biglaw landscape for stuffing their bank accounts full of special bonus bucks during this nightmare of a year.

(Flip to the next page to read the Davis Polk bonus memo in full.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, 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 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. Thanks for all of your help!

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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.