Category: News Feeds

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The scrutiny from botching the confirmation process for Amy Coney Barrett (twice, if you think about it) and keeping the assault allegations against Brett Kavanaugh under her hat for months appears to have finally convinced Dianne Feinstein that she’s really not cut out for this whole “leading the Senate Judiciary Committee” thing. She’s announced she will not seek the chair or ranking member seat next year.

As the California Senator attempts to write a Hollywood ending for herself, today’s trivia question asks what award-winning film featured Feinstein as a character?

Hint: The was nominated for eight Oscars and won two.

See the answer on the next page.

Regrets, he’s had a few. But then again, they were probably all the fault of the Lamestream Fake News Media, which is always talking about Covid Covid Covid and never covering the very big case which is going to be filed next week in Pennsylvania. Or possibly Georgia. Then again, it could be Michigan.

NBC reports that the president has come to the belated realization that putting his election litigation in the hands of the Elite Strike Force Super Friends Task Team was possibly a misstep. According to an NBC source, Trump worries that Rudy Giuliani, Jenna Ellis, and Sidney Powell are “fools that are making him look bad.”

Gosh, what gave him that idea? Was it the press conference in an industrial park between a landscaper’s yard and a porno shop? Maybe the humiliating loss at the federal court in which his esteemed attorney demanded “normal scrutiny?” Did Rudy’s head leaking as he re-enacted a scene from the movie “My Cousin Vinny” bring a flush to the presidential cheek? Was it Jenna Ellis taking a break from getting dunked on by every practicing attorney on Twitter to accuse Frank Luntz of having a “micropenis?” Or perhaps it was Sidney Powell ranting to OANN that Georgia Governor Brian Kemp stole the election from Trump and probably took a bribe to do it?

That last one resulted Powell being cut loose to humiliate the president in private practice. But Giuliani and Ellis are still chugging along, misstating basic facts and law.

So, why doesn’t the guy whose tagline was “You’re fired” just, you know, fire them?

“Who the fuck knows?” responded the NBC source.

Meanwhile, the Trump campaign lawyers have dropped several hundred pages on the Third Circuit arguing that U.S. District Judge Matthew Brann abused his discretion by denying them the right to file a Second Amended Complaint. Never mind that the relief sought was an injunction on Pennsylvania’s certification of the vote count, which has, as of this morning, already occurred. Their theory is that Judge Brann abused his discretion by not inferring that the real deadline was December 8, the electoral college’s “safe harbor” date.

Or … something? Honestly, it’s hard to tell. But here’s a terrific gazillion-tweet thread on everything wrong with this emergency application for a temporary restraining order from someone who waded through all 277 pages of it — starting with the fact that they’re asking the appellate court for a TRO.

In an “Emergency Motion for Temporary Restraining Order and Preliminary Injunction Pending Appeal to Stay Effect of Certification and Expedited Response,” Giuliani and local counsel Marc Scaringi demand that the Third Circuit halt the state’s certification of the election result, or, since it already occurred, “halt the effect” of that certification. Whatever that might mean.

The court should grant this relief based on a Second Amended Complaint which so far exists only in Rudy Giuliani’s head, since it’s never appeared on any federal docket. Appellants nevertheless recite the substance of Rudy’s imaginary complaint at length, including a claim of standing based on “vote dilution” which was explicitly rejected by the Third Circuit two weeks ago.

And Rudy’s still going. Here’s what he told Fox Business’s Lou Dobbs last night.

Our theory of the case to get to the Supreme Court, now in four places and it’s soon going to be in two others—and there will be an overall lawsuit—is basically misconduct of the election by state officials in at least five or six different states in which the misconduct of the election involved deprivation of constitutional rights for the president.

Well, if the president isn’t embarrassed, we are.

Behind the scenes, Trump frustrated with his legal team’s maneuvers [NBC]

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

No, this is not a Black Friday-themed column. My only feeling on that front is that we all should support local businesses to the extent we can. That shopping suggestion aside, I’d like to focus this week on an interesting recent Federal Circuit decision on one of my favorite topics, patent damages. I am always on the lookout for Federal Circuit treatment of damages issues, if only because damages remains an underdeveloped area of patent law relative to its importance to most disputes between litigants. Part of the reason for that of course is that so few patent cases actually get to trial and verdict, which makes damages appeal decisions uncommon.

Thankfully, however, at least some damages disputes do make their way up to the Federal Circuit. And when they do, they tend to present interesting factual circumstances. In our case of the week, Vectura Limited v. GlaxoSmithKline LLC (opinion here), the parties had some prior licensing history that ended up looming large on the resolution of the appeal. The case came to the Federal Circuit from the District of Delaware, where Vectura had won a jury verdict of nearly $90 million, based on a 3% royalty on GSK’s sales of inhalers containing magnesium stearate-coated lactose particles. It is upon those coated particles that the active ingredient particles are deposited according to the asserted Vectura patent. The presence of the magnesium stearate helps with the dispersion of the drug in the patient’s lungs, making the technology a key component of GSK’s inhalers, which themselves generated nearly $3 billion in the damages period through trial. In all, a $90 million damages award represents a significant verdict, both in terms of case value and the importance of the patented technology to the products at issue.

On appeal, the Federal Circuit affirmed the finding of infringement before turning to the two damages questions presented. First, GSK argued that a new damages trial was warranted because Vectura’s damages theory was legally flawed. That theory was based on an allegedly “comparable license” that Vectura and GSK had previously entered into in 2010 for similar magnesium stearate usage in inhalers. At trial, Vectura’s damages expert opined that — based on that 2010 license — GSK would have agreed to an uncapped 3% royalty rate applied to GSK’s total sales of inhalers. The presence of the 2010 license as a comparable license was critical, because without it, the use of GSK’s total sales as the royalty base would have been inappropriate without an accompanying apportionment analysis. Noting the “rather unusual circumstance” in this case, however, the Federal Circuit credited the testimony of Vectura’s damages expert on the comparability of the licenses, thereby negating the need for apportionment.

Further, the Federal Circuit also credited Vectura’s damages expert on the question of whether the royalty rate should be capped, finding “that by 2016 the accused inhalers had already become hugely successful, which would have increased Vectura’s leverage in the hypothetical negotiation.” Accordingly, even though the 2010 license between the parties had a cap on the royalty rate (with no royalties due on GSK sales over 500 million pounds), the outsized success of the accused products gave credence to the jury’s decision to not apply a royalty cap to Vectura’s awarded damages.

Next, the Federal Circuit addressed a common issue in big-ticket patent cases, namely, the allegedly prejudicial effect of having the jury hear references to an infringer’s huge total revenues. While that issue is usually the subject of pretrial motions in limine, GSK had only asked for exclusion of its foreign sales figures in this case. At trial, however, it objected to mentions by Vectura’s damages expert of the $3 billion in U.S. sales at issue. Those arguments gained some traction with the trial judge, who expressed displeasure with use of the $3 billion in total sales, especially in connection with a “pennies on the dollar”-type argument as a basis for Vectura’s damages. But since the “the total revenue was an appropriate base that the jury needed to hear to understand Plaintiff’s damages expert’s analysis,” there was no reason to overturn the jury verdict according to the trial judge. And the Federal Circuit found no “basis to second-guess the judgment of the experienced trial judge in this regard.” Verdict upheld in full, even as the Federal Circuit agreed in principle that “pennies on the dollar”-type damages pleas were improper, just like references to a defendant’s total revenues when the “total amount of sales of the accused products” was not an appropriate royalty base.

Ultimately, the Vectura case provides some important context for evaluating comparability of licenses as part of the analysis regarding apportionment. It suggests, at minimum, that prior licenses involving the parties themselves may support a finding of comparability even when there are differences in license scope or in the patents being licensed. With the increased number of well-capitalized NPEs targeting the same pool of deep-pocketed defendants over and over, the odds of prior licenses between litigants coming into play in a later trial over different patents increases by the day. Here, that dynamic ended up cutting against GSK, even as it had successfully negotiated a favorable royalty cap in the prior license found by both the trial court and the Federal Circuit as otherwise “comparable.” At bottom, defendants should probably assume that comparison shopping with prior licenses at trial will not lead to lower damages awards. In such cases, therefore, it might be a pretrial settlement that would be the real bargain.

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.

Dov Charney (allegedly) wreaked havoc on his fair share of lives both before and after his ouster from the t-shirt and leggings company he founded, American Apparel, with a special focus on those who worked for the company and the hedge fund he rather foolishly believed could save him from himself. Well, Papa Charney and others in Dov’s vastly-reduced orbit says that hedge fund, Standard General, is seeking to return the favor.

“The goal is to make Dov’s life miserable…” a source with knowledge of the case told The Post….

He’s so down on his luck, his dad told The Post, that he’s been living out of the LA Apparel warehouse in South-Central LA.

“Dov does not have his own address or bank account,” said the senior Charney in a phone interview.

“Dov is not having a normal life. I have told him it’s wrong. He is living the life of someone who has a judgment over his head,” said the dad

Libertarian champion Rand Paul is in a dither today after learning that the United States Attorney’s Office in D.C. won’t be pursuing charges in the case of the people who “attacked” him after the RNC while they protested on behalf of Breonna Taylor.

Well, that’s not exactly true. The only person who could remotely be charged with anything was already arrested. But Paul’s concern is the BIG picture. The senator took to Twitter to complain that Michael Sherwin — a prosecutor hand-selected and installed without Senate approval by Bill Barr by the way — is standing athwart the demands of justice because this “attack” is only the tip of the iceberg in a vast interstate criminal conspiracy funded by… someone. We’ll just assume he means George Soros and forgot which anti-Semitic reference to make here.

It certainly sounds like he’s got an airtight case. I mean… how could there be so many Black people in a Washington D.C. without having been flown in specifically for this? And how could they have “fresh new clothes” without the aid of a mysterious benefactor? If you’re playing a white supremacist rhetoric drinking game, you need to call an ambulance right now.

This is, of course, a non-story. But to the dingbat brigade, Rand is asking important questions! A search for today’s “Rand Paul” news finds Fox News, the New York Post, the Washington Examiner, The Blaze, Newsmax all hot on the trail of the vast conspiracy that’s now managed to ensnare the Justice Department. No credible outlet is touching it. Except to troll him, of course.

Here’s the video of the event:

The only thing approaching “violence” is when a cop uses his bike as a battering ram to hit someone — presumably the man they ultimately arrested — and gets pushed back for it. It’s hard to imagine a more mundane and toothless “attack.”

And that’s what makes this all so galling. Rand Paul got the hell kicked out of him by his neighbor in an attack that left him with broken ribs so he knows what a proper attack looks like. Wading through protestors and being within arms length of someone being pushed is not an “attack” and it’s certainly not an interstate criminal conspiracy.

Though DHS Secretary cosplayer Chad Wolf is on board with the conspiracy:

“This is something that I have talked to the AG personally about,” Wolf told Fox News’ Tucker Carlson in early September, saying the department was focused on “targeting and investigating the head of these organizations, [and] the individuals that are paying for these individuals to move across the country.

“What we know, Tucker, is that we have seen groups and individuals move from Portland to other parts of the country,” he continued.

A reminder that the Justice Department may be broken but still clings tenuously to a reality that the rest of the government abandoned long ago. After all, they have enough phony voter fraud conspiracies to look into to get bogged down in phony protest conspiracies. PRIORITIES!

The irony of Paul’s situation is that he’s one of the very few Republicans who could have directly engaged that protest. He actually introduced the Justice for Breonna Taylor Act and consistently opposes the no-knock warrants that ultimately killed her. If he just had the courage to stand up and say, “I’m actually with you and I’m also disgusted by the rest of my Party on this issue” he might have gotten somewhere.

It’s also a little weird that an organized conspiracy would target Rand Paul on the only issue where he was plausibly aligned with the crowd. You’d think the big money folks behind the secretive Antifa movement would have done a better job of planning on that one.

Almost makes you think this is all nonsense being spouted by a dolt trying to land a 5-minute hit on Newsmax tonight, huh?

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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.

You came, you saw, you voted, and one submission absolutely dominated in this year’s legally themed Halloween costume contest. Our winner ran away with 65 percent of the vote this year. Making legally themed Halloween costumes isn’t an easy feat, and this year’s submissions were quite creative. As usual, we applaud the brave souls who subjected themselves (and their children and pets) to our judgment.

And now, the moment you’ve been waiting for. Who won our annual costume contest?

It’s none other than Ruth Baby Ginsburg. What a fitting tribute to the late, great justice. Her mother said of Her Adorableness, “She’s not in law school (yet). Her grandfather is Principal Deputy General Counsel of the Air Force, so it’s in her blood.”

Congrats on winning our annual costume contest. Email us to collect your prize.

Thanks to everyone for submitting costumes and for voting. We sincerely hope you’ll submit a costume again for next year’s competition. Our readers are part of what makes Above the Law such a great website.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

If you’re like most attorneys, fulfilling your CLE requirements probably isn’t at the top of your list of favorite activities. Historically, CLE has been little more than a long series of talking-head videos and a button you have to click every 15 minutes. Thankfully, that’s no longer your only option.

The folks at Quimbee have taken the traditional CLE model and turned it on its head. You may already know and love Quimbee from using their course materials in your law school days, and if you do, you’ll be excited to know they’ve entered the CLE game. If you don’t know Quimbee yet, you’re in for a treat. Simply put, Quimbee makes learning fun.

Fun CLE? Yes, you read that right. You won’t find the standard talking head here. Quimbee uses their unique illustrations, backed by learning science, to create an enjoyable, easy CLE experience that’s unlike anything else on the market.

The Quimbee Experience

Quimbee has revolutionized the typical CLE experience in a number of ways. For starters, it’s visually appealing, with fun illustrations that keep you entertained while you learn and help immerse you in your topic (they currently offer CLE in approximately 20 legal practice areas, with more being added in 2021).

Quimbee’s illustrations aren’t just fun to look at, though. Quimbee has an entire team of instructional designers who work on ensuring that viewers retain the information they see and hear, so they’re actually able to learn a completely new area of law and use it in their practice. Accompanying the illustrations are engaging audio tracks that introduce the material with the help of things like puns and rhymes, and proceed through the material in a way that keeps you engaged – basically, it feels like anything but a droning lecture.

While Quimbee CLE may be new, the company has years of experience techmaking videos, backed by a team that’s well-versed in learning theory. Instructional designers build the foundation for Quimbee’s courses, giving learners an additional means of coding the information. The style mirrors that of Quimbee’s successful law school offerings – meaning that, if you loved Quimbee then, you can keep them in your life as you advance through your career.

Along with the illustrations, you get quick and easy access to the course materials and slide handouts.

This allows you to follow along with the presenter and take notes, as well as having direct links to supplement materials like relevant statutes and case law without having to do any extra digging, so you can use them in your practice or pass them along to your clients.

You can even save them directly to your computer for later reference.

The presenters are experts in their field, but you don’t have to take Quimbee’s word for it – the course material includes bios and even the ability to contact your presenter with any questions you might have.

Better yet, they’re adding more top-notch presenters all the time, building out a comprehensive CLE course catalog that’s focused on the practice areas in highest demand in each state.

Quimbee’s courses aren’t just entertaining, they’re also convenient in a way that most other CLE isn’t. When you’re doing a Quimbee course, you can pick when you want to watch it, pausing and restarting as many times as you need. That means there’s no more having to start over from the beginning if you get a phone call and fail to click that annoying “continue” button that usually pops up every 10 or 15 minutes. It’s also important to note that your access to purchased courses never expires, and if a course’s accreditation expires in your state, a new one is automatically added to your bundle. You get to fulfill your CLE requirements on your schedule, and you get your certificates immediately. They currently offer mobile access and will soon be adding access via their app. There’s even closed captioning available.

When it comes to CLE, Quimbee really has thought of everything. It’s hard to imagine CLE courses that are more accessible, not to mention being a refreshing breath of fresh air in a sea of boring lectures.

The Logistics

Quimbee allows attorneys the flexibility to choose a CLE plan that works for them. You can select from all-inclusive CLE bundles of courses, allowing you to knock out all of your state’s requirements in a single purchase. These give you all your required credits, including specialty credits like ethics and diversity, as well as fundamentals in a variety of practice areas and some of Quimbee’s most popular and interesting courses.

If you only need a few credits, you can opt to buy online CLE courses individually or in smaller groupings. A single course costs just $49, bundles of 12 credits or fewer cost $99, 12 to 23 bundled credits cost $149, and anything above that is only $199. These competitive prices make it easy to craft the CLE plan you need to meet your next reporting requirements.

Are you licensed in multiple jurisdictions and tired of having to keep all your CLE requirements straight? Quimbee’s got you covered there, too. They actively help attorneys licensed in multiple jurisdictions to complete all of their requirements without needing to purchase additional courses or bundles. This not only removes some of the burden of compliance, it saves you a lot of time and money, too.

Perhaps best of all, Quimbee lets you try it before you buy it. You can always preview any course before you purchase it, so you know you’re getting courses you want and are interested in.

It’s about time someone revolutionized the world of CLE. The company that has long supported law students through their grueling school days is now on hand to help attorneys through the entire lifecycle of their careers.

There’s no reason not to give Quimbee CLE a try. You just might never look at CLE the same way again.

Which Biglaw firm is the true gold standard of Biglaw compensation? That’s the kind of esoteric question we here at Above the Law spend entirely too much time contemplating. Cravath is sorta the default answer, even though they aren’t, strictly speaking, the top of the market. And that reputation took a further hit this year when Cooley started the COVID fall bonus trend followed by Davis Polk coming over the top of that scale, while Cravath opted to wait until the end of the year. Now year-end bonuses at Cravath have been announced, and while their associates will get full market scale, it’s clear they’re not about making any waves this year.

But there’s another firm that’s been making their pitch to be the compensation leader. Milbank’s the firm that brought about the $190K salary scale, and last year, they were the first to move on year-end bonuses. So they’ve definitely proven they have what it takes to set the standard in Biglaw compensation. Now they’ve released their year-end bonuses, and well, we shouldn’t get too excited:

Yup, these are the bonuses we expected, on the same scale as last year’s (and the year before’s too). But, considering the freaking pandemic — and those fun COVID appreciation bonuses folks at Milbank got back in the fall — we imagine associates are pretty happy. Year-end bonuses will be paid on or before December 31st, and you can read the full memo on the next page.

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).

This year will likely go down as one of the worst in recent memory. The COVID-19 pandemic continues to rage and has led to an unfathomably high level of loss and suffering. In addition, even though the economy has recovered from its low of several months ago, many people are still out of work and in trouble financially. Yet, numerous lawyers still have many reasons to be thankful this Thanksgiving season.

Lawyers are extremely lucky that our industry has not been as affected by current conditions as much as other parts of the economy. Indeed, many law firms are able to continue operating, albeit with some challenges. This distinguishes us from retail, hospitality, and other industries that have been completely devastated by the ongoing COVID-19 pandemic.

The fact that lawyers are able to more or less continue operating at a similar level as before the pandemic has softened the financial pain many lawyers have felt. Of course, many law firms instituted layoffs, furloughs, and salary cuts at the beginning of the pandemic. However, as this website has detailed at length in several prior articles, many firms have eliminated salary cuts, and some have even reimbursed lawyers for money they were not paid earlier in the year. Some firms have reversed course on furloughs as well. Of course, the legal industry, like many other sectors of the economy, has endured permanent job losses as a result of the pandemic, but the financial impact of the COVID-19 pandemic has not hurt lawyers as much as it has individuals in other industries.

Many lawyers should also be thankful because we are capable of working remotely (for the most part). Many workers need to show up in person to complete their jobs. This not only includes healthcare workers, but also individuals who work in hospitality, real estate, and even some other office jobs. Being able to work remotely means that many lawyers are able to complete their jobs while minimizing their risk of being exposed to COVID-19. In addition, being able to work from home means that attorneys have an easier time juggling child care, healthcare needs, personal matters, and everything else all of us are contending with.

Of course, some attorneys and support professionals are being forced back to offices, which I predicted would happen toward the beginning of the pandemic. Sometimes, there are legitimate reasons to return to offices, but many times, managers are forcing workers back to offices to supposedly increase their productivity or since they can’t bear the thought of paying for an unused office (more on this in a future article). Nevertheless, the vast number of lawyers are able to work from home, which has made dealing with the ongoing pandemic far easier.

Numerous lawyers should also be thankful that we are doing better financially than individuals in many other industries. Of course, some practice areas have definitely slowed because of the COVID-19 pandemic. Indeed, there are fewer real estate deals occurring in the present environment, litigation has slowed, and any cyclical practice areas are suffering as the economy has faced challenges in recent months. However, numerous practice areas have remained steady, and some practice areas have expanded because of the ongoing pandemic. Many firms have adapted to meet the current needs of their clients, and some firms may be able to expand their expertise in the future because of their experiences during the pandemic.

Lawyers should also be thankful because many law firms were able to take part in government assistance programs designed to help businesses impacted by COVID-19. For instance, many law firms were eligible to participate in the Payroll Protection Program, and judging from my LinkedIn feed, many law firms big and small of which I am familiar took part. In addition, numerous law firms also took advantage of programs sponsored by FEMA and the SBA in order to make it through the earlier parts of the pandemic. Many businesses were unable to participate in such programs, since restaurants, hotels, and other businesses were unable to keep the requisite number of people on the payroll to obtain the benefits of these initiatives. Of course, businesses of all types and sizes also took part in such programs, but lawyers should count themselves lucky that they had the support of these initiatives.

Naturally, the legal profession has suffered due to the COVID-19 pandemic, just like any other industry. Some titans of our profession passed away due to the virus (and other valued lawyers were thankfully able to recover from COVID-19). In addition, lawyers, just like everyone else, have had to deal with the everyday suffering and inconvenience caused by the COVID-19. However, as we begin the Thanksgiving holiday, lawyers should recognize that we have many reasons to be thankful this season.

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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.