Category: News Feeds

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!

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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.

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.

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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).

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.

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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.

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

Our nation is going through difficult times, as the coronavirus pandemic worsens, millions of Americans remain unemployed, and racial injustice and inequality persist. The need for us to help our fellow citizens runs especially high.

During a period like this, it’s heartening to see how the legal community has stepped up to the plate. For example, during the recent National Pro Bono Celebration, thousands of lawyers and law students across the country participated in volunteer events.

Some lawyers go even further, doing not just occasional pro bono work but dedicating their entire careers to working in the public interest. And hundreds of these lawyers — more than 900 of them, to be more precise — have started their legal careers doing public interest work with the support of Skadden Fellowships.

As we’ve explained in the past, these prestigious fellowships, the public-interest world’s version of Supreme Court clerkships or Rhodes Scholarships, allow their recipients to pursue public interest work on a full-time basis for two years. Skadden Arps started the program in 1988 to commemorate its 40th anniversary as a law firm, and more than 30 years later, it continues to provide its generous support.

Shortly before Thanksgiving, Skadden announced its 2021 class of fellows. These 29 graduating law students and judicial clerks will work in 18 cities in 14 states across the United States, focusing on such issues as education equity, gender-based violence, housing, immigrants’ rights, LGBTQ+ rights, police accountability, voting rights, and workers’ rights.

For the 2021 class of fellows, Harvard led the way with nine fellows, UC Berkeley produced five fellows, and UCLA minted three. The remaining law schools each placed one graduate into the program — including one newcomer to the list, the University of Kansas School of Law.

Congratulations to the new Skadden Fellows — and thanks to them, as well as Skadden Arps, for all that they do in service of the public interest.

(Flip to the next page for the complete list of the 2021 Skadden Fellows, as well as a list of the law schools that have produced the most Skadden Fellows over the years.)

* A Long Island lawyer has filed nearly 100 lawsuits alleging that companies are falsely claiming their products contain vanilla. He should go after restaurants unfairly advertising they sell New York-style pizza and bagels… [Inside Edition]

* A Florida lawyer, who dressed as the Grim Reaper on beaches to promote social distancing, is facing legal setbacks in his lawsuit against Florida’s Governor Ron DeSantis over COVID-19-related measures. [News Service of Florida]

* A number of court proceedings in Durham County, North Carolina have been canceled because a substantial amount of local prosecutors are quarantining after being exposed to COVID-19. [WRAL.com]

* A Michigan funeral home recently settled a lawsuit that led to a major LGBT ruling at the Supreme Court. [Star Tribune]

* Massachusetts is paving the way for marijuana delivery, which may prompt legal action from retailers. Guess Mr. Nice Guy might soon be legal in the Commonwealth… [Mass Live]

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

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

According to Vault’s 2021 rankings, which Biglaw firm gets top marks for transparency?

Hint: The firm, founded in Southern California in 1962, is best known for their litigation work.

See the answer on the next page.

Some things just need to be said: the year 2020 has been (and continues to be) one of the most challenging years of our lifetime — it is a gift that just keeps on giving. Forgive the sardonic take, but it has been one heckuva year to say the least –- and as of the time of this writing, the presidential election continues to drag on due to serious allegations of voter fraud by the Trump campaign amid claims of fraud and growing statistical evidence of anomalies in the voting tallies in many battleground states. Whether or not you agree with the election challenges presented to date, it is hard to miss the significant claims of potential fraud and vote manipulation being made that involve electronic voting (“e-voting”) systems used in the U.S. This situation is leaving many voters with questions over the security and accuracy of these systems, while receiving few answers in the process.

Face it: Most of us casting our votes using e-voting systems do not know where these votes go once we press the “cast your vote” button. To help provide some context, it is worth generally understanding the election process (care of Britannica):

To understand electronic voting, it is convenient to consider four basic steps in an election process: ballot composition, in which voters make choices; ballot casting, in which voters submit their ballots; ballot recording, in which a system records the submitted ballots; and tabulation, in which votes are counted. Ballot casting, recording, and tabulation are routinely done with computers even in voting systems that are not, strictly speaking, electronic. Electronic voting in the strict sense is a system where the first step, ballot composition (or choosing), is done with the aid of a computer.

Most e-voting systems in the U.S. use some type of specially designed machine to either directly record the vote (a direct recording electronic, or DRE machine) or optically scan a paper ballot, or both. Since DRE machines handle composition, casting, and recording of votes and place that data in memory on the device, the recording of this vote (and how it is handled and later tabulated) is invisible to the voter. As a result, there is lingering controversy over the security and integrity of recorded votes using e-voting systems.

This leads to some legitimate questions about e-voting systems that the vendors should address with more than platitudes to assuage fears of both voters, elections officials and candidates. Here are three of them:

Is your e-voting system subjected to regular third-party penetration testing and vulnerability analysis? In my research I have seen a lot of marketing material claiming their systems “meet or exceed” relevant “industry standards,” but that doesn’t cut it. Being tested and certified by the U.S. Election Assistance Commission (EAC) in accordance with federal Voluntary Voting Systems Guidance (VVSG) is great … but not enough. Vendors of e-voting systems have trusted, highly qualified “white-hat” hackers … I mean, contractors … regularly “hammer” their systems to uncover potentially hidden vulnerabilities so that the systems can be hardened against attack and intrusion both locally and in transmission of data. If a vendor already does so, then they have an immediate market advantage. After hearing about alleged Russian interference in the 2016 election for the entirety of President Trump’s first term, and now allegations of Dominion Voting Systems being compromised by Chinese and Iranian rogue actors in the latest election challenge in Michigan, this is not only recommended, but simple common sense.

Does your e-voting system use an immutable audit trail? From what I have been able to gather, most jurisdictions either use a DRE machine or optical scanner technology to tabulate votes into a file for incorporation into a centralized database. The problem is that this data can ostensibly be manipulated or changed (either through malicious software intrusion or otherwise). This should not be possible under any circumstances. Using current technology (such as blockchain), voting records can be recorded in an immutable ledger that can be used for not only securing the record but audit purposes as well. They are not only cryptographically protected, but they are permanent entries in the blockchain and cannot be changed by design. This immutability fosters security and authentic auditability. For example, if any votes are “dumped” into such a system in the wee hours of election night, it becomes an easier task to cross-reference the votes tallied to actual vote records to determine irregularities and whether any of the electronic votes are not authentic. It’s definitely not perfect, but it is better.

Do you escrow your e-voting system source code? I realize this is a delicate topic — as an IP lawyer I have negotiated many source code escrow agreements and provisions and understand the issues on both sides of the fence. The problem here is that the very nature of e-voting systems demands accountability and a certain level of transparency. As I wrote in my prior article, states should negotiate source code escrow provisions that include allegations of improper operation of the software as a triggering event so as to authorize the release of source code to a mutually agreed forensic programmer to perform necessary auditing under strict confidentiality restrictions. To the extent potential software shenanigans have been alleged and enough evidence presented to draw the software into question, such a forensic review can address the allegations while protecting the source code from improper disclosure. Securing the value of the vendors’ IP is critical, but so are our votes.

Don’t misunderstand me: e-voting systems cannot prevent all fraud — these systems merely collect, record, and tabulate input data, so bad actors in the chain of custody will always be a problem. Although no system will ever be perfectly secure, there is no reason e-voting systems can’t be more secure by design. We need to have confidence in our electoral processes, and allegations of vote fraud and vote manipulation by the very systems collecting, recording, and tabulating our votes cannot be casually dismissed — they must be taken seriously. For the sake of our electoral system, I remain optimistic that answers to these and other legitimate questions will be forthcoming. Then again, it’s still 2020….

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

A little bit of yeast leavens the whole loaf. Which essentially means that it only takes a small catalyst to make a big difference. In today’s context, one person can raise the tension in a room just like a few grams of yeast can raise a loaf of dough. It doesn’t take much.

Combine that idea with something Albert Einstein said: “The world is in greater peril from those who tolerate or encourage evil than from those who actually commit it.” Thus, the greatest obstacle of justice is possibly the innocent, but inactive, bystander. What you allow will continue.

Catalytic passivity: the substantial impact or major consequences that follow directly from the inaction of an individual or group.

My first encounter with unprofessional behavior went something like this. I was following up with a senior lawyer after she sent several puzzling, and inappropriate, emails. However, my attempt to query her was cut short by her shouting that she had bigger fish to fry. Being a younger, more daring Olga who perhaps had slightly less wisdom than the Olga of today, I responded with unchecked words and unhindered wit. I apologized to her … for mistaking her for a lawyer when it turned out she was a cook.

She was, of course, not a cook and so she didn’t take that particularly well. No one stood up for me, but I moved on. Over the years I met many associates who had very similar stories about that same person. Apparently, I was not her first. People who knew her before me and long after I shared near-identical tales of her explosive episodes. It really bothered me that such a hostile environment continued to exist for so long — that no change had come about even though so many people were negatively impacted by it. I wondered why nothing changed. After some reflection, I realized that I may have been a part of that problem.

How?

Catalytic passivity.

I called her out on her bullying by pointing out how childish she was being. But I don’t think we should be drawing the line there. For a once-off, I think it is quite apt simply to draw their attention to their behavior and why it was wrong. But for a repeat offender, further action is required.

The second step would be to approach the individual with a colleague. Ensure you’re approaching Dr. Jekyll, not Mr. Hyde, and that you’re not doing so during or immediately after an incident. The only exception would be if there is absolutely no other choice because every conversation escalates into a shouting match and you knew this would be no different. Of course, a toxic environment can be made equally as noxious through whispers or shouts. It is unprofessional, unnecessary, or demeaning behavior — regardless of what form it takes.

The final step would be to approach superiors. Be it their colleague, superior, or HR. A superiority complex may prevent them from listening to you but hearing the words of someone above them may be shocking enough to trigger a change in behavior.

Let’s stop allowing what we do not want to continue because when we do, we endorse it. Maya Angelou so poignantly said that “we are only as blind as we want to be.” At the end of the day, turning a blind eye leaves Lady Justice impaired.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.