Category: News Feeds

Two days following the publication of my last post, in which I discussed the potential implications of the European Commission’s (the Commission) preliminary decision to regulate cannabidiol (CBD) derived from hemp flower as a narcotic drug, Europe’s highest court, the Court of Justice of the European Union (the CJEU), weighed in on the matter.

In a landmark interpretation of the U.N. Single Convention on Narcotic Drugs of 1961 (the Single Convention), the court of five judges held that CBD derived from the entire hemp plant is not a narcotic.

In 2018, the CJEU was asked by the Court of Appeals of Aix-en-Provence to determine whether a prohibition on the marketing of CBD derived from the whole hemp plant was contrary to EU law. At issue in the case was the prosecution of a CBD company that marketed vaping products containing CBD oil extracted from the whole hemp plant, which French law prohibits (only hemp fiber and seeds may be put to commercial use). However, the CBD used in the marketed products was extracted from hemp lawfully cultivated and processed under Czech law.

Although the CJEU acknowledged that “a literal interpretation of the provisions of the Single Convention might lead to the conclusion that […] CBD […] extracted from a plant of the Cannabis genus […] constitutes a cannabis extract [….],” the court also pointed to the fact that:

[S]ince CBD does not contain a psychoactive ingredient in the current state of scientific knowledge …  it would be contrary to the purpose and general spirit of the Single Convention to include it under the definition of “drugs” within the meaning of that convention as a cannabis extract.

Through its ruling (called a “preliminary ruling” because the court was asked to interpret the law of an EU member state), the CJEU lifted the veil on the murky international legal status of lawfully produced CBD by declaring the famous cannabinoid is not a drug under the Single Convention, and thus, under EU law, which expressly refers to the Single Convention.

Consequently, EU member states are precluded from banning the marketing of lawful produced CBD products (i.e., legitimate goods) because these products fall squarely within the EU’s free movement of goods provisions, and as such, should be traded without restrictions between EU member states.

This CJEU landmark ruling is significant because it is binding on all EU member states, not just France. This means that EU governments that are cracking down on the sale and marketing of CBD products will have to amend their laws and regulations. Moreover, the ruling should help clarify and harmonize the fragmented CBD laws and regulation of EU member states. In fact, shortly after the release of the CJEU ruling, EU member states, including a group of German lawmakers, vocalized the need to promptly regulate the manufacture, sale, and marketing of CBD products in the EU.

This legal decision should also be binding on the Commission, which has yet to take a final stance on whether CBD derived from hemp flower should be treated as a narcotic in the context of novel food applications. You may recall from my last post that the Commission’s preliminary consideration for treating CBD as a narcotic drug was based on a literal reading of the Single Convention. Therefore, given the CJEU’s legal reasoning, it is hard to imagine the Commission would deviate from this rationale, though some commentators anticipate the Commission may drag its feet in recognizing the ruling for political reasons. Yet, the Commission’s decision set aside, there is no doubt that the CJEU ruling represents a huge step toward the creation of a more competitive European CBD market, one that may even facilitate the breaking of international trade barriers.

---

Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

Biglaw associates, how should you spend your bountiful bonuses? Perhaps you’re planning to buy a Peloton. Perhaps you’re planning to purchase your own Lawyerly Lair to someday be featured here on Above the Law. Or perhaps you’re planning to completely pay off your law school loans.

If you’re feeling more altruistic, how about making a charitable donation to support a good cause? Today is Giving Tuesday, and it’s a time to give back to your community, whether through donations of your time or your money. Don’t forget that your law firm may be willing to match any of your charitable contributions. Some ideas:

Regardless of whether you go with any of these charities, please consider using some of your newfound money to support a worthy cause. With partners sharing the wealth with associates, associates should share the wealth with those who are less fortunate or need legal assistance.

---

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.

It’s certainly more dangerous language, more dangerous behavior. And the way I look at it is that we are a nation of laws, and I plan to take advantage of those laws. I’ve got an exceptional team of lawyers that win in court, and I think they’re probably going to be busy.

— Christopher Krebs, who served as the Director of the Cybersecurity and Infrastructure Security Agency before he was fired by President Donald Trump for telling the truth about the security of the 2020 election, after being asked during an interview if he’s concerned about his safety following rather inflammatory remarks made by Trump campaign lawyer Joe DiGenova, who called Krebs a “class A moron” who “should be drawn and quartered. Taken out at dawn and shot.”

---

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.

Who could have predicted that a legal team assembled by a guy whose go-to defense is repeating “lots of people are saying” would traffic in hearsay?

Remember when the Trump campaign filed a Gordian knot of hearsay within hearsay that a Michigan judge had to untangle? It was the stuff bad law school issue spotters were made of, except it was happening for real and in a lawsuit purported to hold the fate of the presidential election in the balance.

Well, the Trump campaign takes issue with these judges questioning their grasp of hearsay and have asked higher courts to recognize that their affidavits are perfectly admissible and not hearsay at all.

Unless, of course, you define hearsay as “an out-of-court statement offered to prove the truth of whatever it asserts.” In which case, they’re totally hearsay.

For those who aren’t attorneys or anyone who jettisoned this subject the second they passed the bar and took up M&A so they never had to think about Evidence again, this brief is legal gobbledygook. If this person witnessed some wrongdoing, then so be it, but it’s not evidence to say that she heard someone else say that wrongdoing occurred. And it doesn’t help the matter to say, “But look, the unidentified third person wrote down that they heard about wrongdoing.”

Yes, there are instances where someone can testify to the specific things they heard or saw outside of court, but not when they’re doing so “for the truth of the matter.” For example, one could assert that, “I heard so and so say that Trump’s lawyers molest collies” for the purpose of a defamation claim, but one can’t submit that statement as proof that Trump’s lawyers, in fact, “molest collies.”

In any event, it’s pretty textbook that someone claiming that they heard poll workers say that other poll workers were saying that they were committing crimes is not the sort of thing that avoids hearsay.

But Trump’s team cites caselaw! That must be helpful for their cause right?

Or at least misguided about how to interpret this case.

Let’s credit Alyssa Leader for putting this succinctly:

Things seem to have gone awry over at Trump’s Elite Strike Force Team headquarters. If you’ve heard any rumors about it, feel free to slap them in an affidavit.

The brief is available on the next page. Shout out to the folks at Law & Crime who uploaded it.

---

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 was only a few months ago that mega firm Dentons — we’re talking 10k attorneys worldwide — announced two of their UK offices (Watford and Aberdeen) would be shut down permanently. Employees were allowed to permanently work from home, with the option to travel to other offices (at least two hours away by train) if they choose.

Now, according to Legal Cheek, the firm is engaged in a “redundancy exercise” in the UK that could see up to 24 attorney jobs in London, Milton Keynes, and Glasgow lost. The firm noted that the cuts would be mitigated by the creation of “virtual roles,” that would be in its energy, transport and infrastructure, and non-contentious construction teams. Like the closure of the other UK offices, this move is part of the response to the COVID-19 pandemic and the increase in remote work as a result.

UKME CEO Jeremy Cohen commented: “Considering transformational shifts in the delivery of services sometimes means having to make proposals that, while focused on the need to build a sustainable long-term business, may regrettably impact the lives of some of our colleagues and cause uncertainty.”

He continued:

“The processes themselves are also never easy for our staff and we know that the consultation exercise in these practices will understandably cause a degree of uncertainty for some. We are very focused on supporting all potentially impacted colleagues throughout this process, and our priority now is to work towards providing them with clarity, and removing any uncertainty as soon as possible.”

Good luck to all those that now find their jobs in jeopardy during this difficult time.

---

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).

      

It’s the most wonderful time of the year (all things considered). Thanks to a bonanza of bonus news, the holiday season is off to a great start. Cravath was very merry this year, stuffing associates’ stockings with good cheer and wads of cash. Thanks to the pandemic, law firm holiday parties will likely be pushed onto Zoom, but the virtual celebrations and hefty paychecks pale in comparison to what’s about to get underway: Above the Law’s twelfth annual holiday card contest. We’ve already received several emails asking about when this year’s contest would start. The answer: It starts today.

We are a legal website, so of course there are some rules to follow:

1. Because we are committed to the environment here at Breaking Media, we will consider ONLY E-CARDS. Please don’t send us paper holiday cards via snail mail this year — the Above the Law editorial team hasn’t been in our physical office since March 2020.

2. To submit an e-card, please email either a link to the card or the card itself (as an attachment) — but note that WE PREFER LINKS, if available — to tips@abovethelaw.com, subject line: “Holiday Card Contest.” The subject line is very important because it’s how we will comb through our inbox to collect the entries when picking finalists. If you don’t use the correct subject line, expect a lump of coal in your stocking.

3. Please limit submissions to holiday / Christmas cards that you view as WORTHY CONTENDERS. We’re looking for cards that are unusually clever, funny, or cool; we’re not interested in cards that are safe or boring (e.g., a beautiful winter landscape, a “Happy Holidays 2020,” and the law firm name). We’re seeking cards with some attitude, with that extra je ne sais quoi. If you send us a banal card, don’t be surprised if we make fun of it.

4. In your email, please include a BRIEF EXPLANATION of why this card is compelling — an explanation that we MIGHT QUOTE FROM if your nominee makes the finals (if you want to be anonymous, let us know). If you can’t offer an explanation, please rethink whether the card is a worthy contender (see rule #3, supra).

5. The deadline for submissions is about two weeks from today: FRIDAY, DECEMBER 11, at 11:59 p.m. (New York time). No exceptions. If you’re reading this post after the deadline, then you don’t read Above the Law frequently enough.

We look forward to your submissions. Thank you, and happy holidays!

---

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.

Year-end bonuses shouldn’t be controversial. Indeed, at most firms, seeing as they merely duplicate the already set market rate, the feeling should be “as expected and happy about it.” But when there’s already discontent simmering at the firm, well, even more money isn’t always enough to smooth that over.

Today, Weil Gotshal announced year-end bonuses, in line with the prevailing market rate. The bonus scale is as follows (you can read the full memo on the next page) and, as is typical at the firm, came without an hours requirement:

Back in the fall, Weil was among the Biglaw firms to hand out COVID appreciation bonuses. But Weil had a unique spin on those bonuses — though they were, in theory, very large, they came with a steep billable requirement (compared with other firms that doled out the bonuses based on class year). So, even though those bonuses were in addition to the year-end bonus numbers, it caused quite a bit of consternation among associates. And now with the year-end bonuses simply a match of the prevailing market rate, well, it’s clear attorneys will have to bill a lot of hours to earn themselves full market compensation. As a tipster at the firm noted:

Disappointed in Weil.  They have always paid market bonuses without an hours requirement.  Even though they are having an exceptional year, they are paying below market bonuses for many attorneys.  For a senior associate to make a market bonus, they’d need to bill 2300+ hours.

That’s a lot of hours any year, but in 2020 it seems particularly onerous.

Of course, some folks with particularly high hours were (and remain) happy about using hours rather than seniority to hand out special bonuses. After all, younger associates had to bill far fewer hours to hit or exceed market compensation. But whatever associates thought about the special bonus system, the year-end bonuses hasn’t changed any of that.

The year-end bonuses will be paid on January 29th, 2021.

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.

---

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).

One of the most interesting patent disputes to watch over the course of the past year has been the multifront battle between Google and home-audio darling Sonos. There is a lot at stake, particularly for Sonos, whose CEO testified before Congress earlier this year and decried Google’s embrace of “efficient infringement” at the expense of smaller innovators like his own company. Add in the bitterness engendered by former partnering companies turned competitors/litigation adversaries, and it is no surprise that the dispute has escalated significantly over the past year. From filings in multiple countries and in multiple venues in the U.S., to each side deciding to add more of their own patents to the fray, there is no doubt that both companies are doing their utmost to extract every possible litigation advantage they can.

When I first issued a Markman Advisors blog post on the hostilities back in late June, I noted how even in the first round of moves and countermoves between the combatants, venue was a contested issue. At that point, Google had already made clear its intentions to proceed in San Francisco on its own patent infringement claims against Sonos, “as a counterbalance to Sonos’ filing in Los Angeles.” Google’s desire to keep things in the Northern District of California whenever possible also manifested itself in various Google legal maneuverings over the past few months. In late September, for example, Google filed a declaratory judgment action to try to head off Sonos’ assertion of additional patents in a second infringement case against Google. (More on that filing below.) Moreover, Google tried to have its NDCA infringement case against Sonos related to the declaratory judgment filing. But that effort was rejected by the presiding judge in Google’s affirmative case, the Hon. Edward Chen, who denied Google’s motion to relate the cases in late October.

While Google was trying to get the cases it filed in the NDCA related, Sonos was doing its part to try to get Google’s declaratory judgment filing in the NDCA dismissed, in favor of Sonos’ affirmative case asserting the same patents that was filed the day after in the plaintiff-friendly Western District of Texas. That motion was decided on November 20, 2020, with the NDCA’s Hon. William Alsup electing to stay Google’s declaratory judgment case, pending resolution of Google’s motion to transfer Sonos’ WDTX case to the NDCA. But Alsup did more than just order a stay pending developments in another jurisdiction dealing with the same patents. Why? Because, in his view, Google’s filing of a bare-bones declaratory judgment complaint to try to head off Sonos’ WDTX filing was a blatant example of forum shopping.

Indeed, Alsup made plain that he considered the whole Sonos-Google mutual escalation strategy as “emblematic of the worst aspects of patent litigation.” Noting that “the resources invested into this dispute already are doubtless enormous,” the court made no bones about the fact that it thought those resources could instead have been used to more socially beneficial ends — anticipating that by the time all the legal proceedings concluded “our parties’ legal bills will likely have been able to build dozens of schools, pay all the teachers, and provide hot lunches to the children.” Bromides about wasteful litigation spending aside, Alsup focuses most of his criticism on “Google’s litigation gimmick, to anchor venue with a bare bones complaint and then fix it up by amendment.” As a consequence, the court’s order requires Google to file for leave to file an amended complaint by December 11, with beefed-up noninfringement allegations to support the request for declaratory judgment of noninfringement as to Google’s accused products. While Google assuredly has the resources to pay for that work to get done, it is less than ideal for the company to have its initial approach to seeking declaratory judgment jurisdiction called out so negatively by the judge presiding over the matter.

While Alsup had no qualms about effectively sanctioning Google for its attempt at forum shopping, he also reserved judgment on whether “Sonos is just as guilty of forum shopping here as Google.” At the same time, he expresses some skepticism that Sonos will be able to keep its case in the WDTX in light of Google’s motion to transfer and the recent Federal Circuit decision in In re Adobe — a decision that seemed to involve similar facts and resulted in transfer of a case from the WDTX to the NDCA, just as Google is seeking against Sonos. Content to wait for resolution of Google’s motion, Alsup entered the stay, while ordering that the “parties SHALL keep the Court apprised of material updates in the Texas proceedings and promptly provide Judge Albright a copy of this order” (emphasis in original).

Ultimately, this recent order is just one of many that will issue from various courts handling parts of the global Sonos-Google patent dispute. But it also is indicative of the interconnected nature of the ongoing disputes, as well as the primacy both sides continue to place on litigating before what each party hopes is a favorable venue. They are not alone on that front, of course, since venue is a critical component of patent litigation, from pre-suit seeking of litigation funding to post-filing motion practice. At the same time, Alsup’s willingness to hold Google to its obligations as a responsible litigant, coupled with Chen’s unwillingness to relate Google’s filings, at least indicates that the NDCA may not present the home court advantage Google was hoping for. There is still a long way to go in the worldwide dispute between Google and Sonos, of course. But at least before Alsup, Google’s attempts to stay home have been met with a resounding “not so fast….”

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

---

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Today, as I think about the year of hell coming to a close, I think about possibilities. What could make for a better future? What would make the world a better place?

My seemingly perfectly reasonable wish: Make law school finals about learning and not measuring.

Law school is like playing 18 holes with a pro golfer, only to have the pro tell you on the green of the 18th hole that your grip has been off, and that’s why you double-bogied every hole. Gee, thanks! Or maybe the pro golfer just says “B+ game” without even mentioning your crappy grip. Even if the pro gives you feedback after the front nine, you’re still feeling a little robbed that there wasn’t correction had before then. Then again, being corrected on every hole would be annoying AF — there must be time to incorporate lessons into practice.

Regardless, any of the pro’s efforts would be about improving your game. The goal is to make you better. The pro seeks to make you know your own swing, the mechanics of a proper swing, and yes, visualize success. The pro golfer wants you to win (assuming you aren’t playing them for money).

When law professors hand out final exams, I fear it is not out of that same desire for success. Not that profs don’t want you to win, but often times they aren’t allowed to do so. Law schools require forced curves in many instances.  We are measuring people.

Once a student takes that exam, the only learning that can happen is if the student and the professor meet up again to walk through mistakes and things done right. This is hard to do when the professor is defending the grade. And, depending on how the professor dispatches feedback, it might be hard for the student to learn given the feelings associated with grades.

The golf analogy fails further in that after you play 18 holes you can play again. And again. And again. Each time, you can get better and improve. With law school classes, you only get that one round. That one round is what people seek to use to define you. And it’s wrong.

Those grades are but a snapshot of how well a student did on the exam. And often it isn’t a fair metric. As an example, suppose a student gets an A after devoting much time to studying. Another student, with a knife in their arm, spends less time studying because of the pain of the knife, and receives a B.

Law firms would reward the diligence of the former but not the perseverance of the latter. A well-crafted IRAC gets reward, and the student with the knife wound gets stitches and a brief mention of the knife in a letter of recommendation (if that student is fortunate). That’s how law firms hire people. It’s how judges often hire. Hey, don’t get me wrong — it’s also how law schools hire. (Ooh, look at the scholarly impact!)

So, the benefit of the final exam has nothing to do with learning. It benefits lazy interviewers who are keen to use the same proxies that were used to hire themselves.

The psychological impact of that one round affects the law student in profound ways. The higher-graded students get more vocal, while those who didn’t do as well as they’d expect get soft spoken. Confidence wanes and waxes.

Those with high GPAs might choose to take different classes than they would otherwise take to defend their GPA. Avoid the tougher classes. Take the easier ones. Not stretch the mind. Those with lower GPAs might avoid those same tough classes to try to climb up the GPA. Students might look to grade distributions to choose classes rather than areas of interest.

Learning becomes secondary.

I don’t have a solution here. I wish I did. As it stands, I’ve chosen to make my students play a very difficult front nine, with every trap and flag placement designed to mess up their game. Then I try to show them what they did on those holes, both good and bad.  And, with that knowledge, they hopefully are better able to at least deal with the nine holes they’ll need to play on the final.  It’s not a perfect solution. And it doesn’t justify for even a second the weight the legal profession places on grades.

As we enter grading season, my lament is we would spend more time focused on learning and less time focusing on making sure we get a good grade distribution.

---

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) or Facebook. Email him at lawprofblawg@gmail.com.