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Thankfully, fortunately, and mercifully, the 2020 election is now over (and maybe even President Donald Trump is starting to acknowledge this). We can now start thinking about what to expect from a Biden-Harris administration.

For example, who might President Biden nominate to the U.S. Supreme Court, if he’s fortunate enough to have the opportunity? During the Democratic primaries, he publicly pledged to put a Black woman on the Supreme Court. I agree with the many legal analysts, such as Noah Feldman and Joe Patrice, who have identified Justice Leondra Kruger of the California Supreme Court and Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia as the frontrunners. They’re impeccably credentialed, highly respected, eminently confirmable, and sufficiently young (Kruger is 44, Jackson is 50).

An outside pick, as I suggested on Twitter, might be Judge Leslie Abrams Gardner, of the U.S. District Court for the Middle District of Georgia. Judge Gardner is the sister of Stacey Abrams, former Minority Leader of the Georgia House of Representatives, whose voter registration efforts played a major role in helping Biden prevail in Georgia — and the President-elect owes the Abrams family a debt of gratitude. (Stacey Abrams has also occasionally been mentioned as a possible SCOTUS justice herself — she’s a lawyer, and she and I were law school classmates, in fact — but Stacy’s interests lie elsewhere.)

Of course, whether President Biden even gets a Supreme Court nomination remains to be seen. I highly doubt that any of the Republican-appointed justices plan on retiring during the next four years. And since the oldest among them, Justice Clarence Thomas, is just 72 — a spring chicken by SCOTUS standards — I’d be surprised to see any of them leave the Court involuntarily.

We do know, however, that President Biden will get to pick an attorney general — which brings me to my topic for today. Who will serve as attorney general during the Biden-Harris administration? As I did for the most recent Supreme Court nomination, I’ll handicap the field.

One caveat: the AG pick will not be made in a vacuum. Because Democratic presidents generally care more about diversity than Republican presidents, they have a harder time putting together a Cabinet. Making sure the Cabinet is diverse in terms of race, ethnicity, gender, sexual orientation, disability status, and other considerations — possibly including party affiliation, if Biden decides to include a Republican as a gesture of goodwill — can turn into an LSAT logic game from hell. So who gets the nod as attorney general will depend not just on her own qualifications for the role, but how she fits in demographically with the rest of the Cabinet.

Doug Jones: 3-to-1 odds (25 percent)

Age: 66
Current role: U.S. Senator from Alabama (since January 3, 2018)
Education: University of Alabama (B.A.), Samford University (J.D.)
Prosecutorial experience: U.S. Attorney for the Northern District of Alabama (1997-2001); Assistant U.S. Attorney (1980-1984)

I consider Jones, who recently lost his re-election bid in super-conservative Alabama, to be the frontrunner. As a former AUSA and then U.S. Attorney, he has extensive prosecutorial experience and an impressive record as a prosecutor, winning acclaim for successfully prosecuting two members of the Ku Klux Klan for their roles in the 1963 16th Street Baptist Church bombing. He’s also a friend of the President-elect, having worked on Biden’s first presidential campaign back in 1988.

Doug Jones is not only extremely qualified, he’s also the easiest to confirm. Senators tend to be nice to their former colleagues when it comes to confirmation; recall how Hillary Clinton, one of the most controversial figures in modern politics, was confirmed as Secretary of State by a vote of 94-2. And Jones is well-liked within the chamber, not just within his own caucus but among Republicans as well (partly because of his strong record of bipartisanship in sponsoring legislation).

Jones’s main (and perhaps only) liability: he’s a straight white guy. So whether he gets the nomination will depend in significant part on whether there’s enough diversity in the rest of the Cabinet.

Sally Yates: 3-to-1 odds (25 percent)

Age: 60
Current role: Partner, King & Spalding
Education: University of Georgia (B.A., J.D.)
Prosecutorial experience: Deputy Attorney General (2015-2017); U.S. Attorney for the Northern District of Georgia (2010-2015); Assistant U.S. Attorney (1989-2004).

Like Jones, Sally Yates is amply qualified to serve as attorney general. And she actually held the role in an acting capacity for 10 days early in the Trump administration, during which she became a hero of the resistance after getting fired for refusing to defend President Trump’s so-called “Muslim ban” (i.e., his executive order barring entry to the United States by foreign nationals of seven predominantly Muslim countries).

This controversial capstone to her career in government shouldn’t overshadow the fact that Yates has more than 25 years of prosecutorial experience, dating back to her hiring as an AUSA by then-U.S. Attorney Bob Barr (yes, that Bob Barr, later a prominent Republican congressman). As an AUSA, Yates gained fame from prosecuting Eric Rudolph, the domestic terrorist responsible for the Centennial Olympic Park bombing.

Yates is definitely a top contender — as reflected in the prominent speaking role she was given in the Democratic National Convention that nominated Joe Biden. Her main liability, at least compared to Doug Jones, is that she might be a somewhat heavier lift in terms of confirmation. Even though she’s really a career prosecutor and shouldn’t be controversial, some Republican senators, especially those beholden to President Trump and his base, might oppose her because of her “insubordination” in refusing to defend the Muslim ban.

I think Yates could still win confirmation. The filibuster of executive-branch nominees is no longer a thing, at the end of the day, I think she’d win support from at least some combination of Senators Collins, Murkowski, and Romney.

Xavier Becerra: 4-to-1 odds (20 percent)

Age: 62
Current role: Attorney General of California (since January 24, 2017)
Education: Stanford University (B.A., J.D.)
Prosecutorial experience: Attorney General of California (2017-present); Deputy Attorney General, California Department of Justice (1987-1990)

Becerra doesn’t have as much prosecutorial experience as either Jones or Yates — and he has never been a federal prosecutor, just a state prosecutor — but he’s definitely in the mix. He’s popular among progressives, based on his track record not just as California AG but as a member of the U.S. House of Representatives for 24 years, and as a Mexican American, he’d add diversity to the Cabinet.

His odds as AG would be better if not for the fact that he’s also in the running for two other plum posts. First, Governor Gavin Newsom might want to appoint Becerra to the Senate seat that will be vacated by Kamala Harris in January (and Becerra previously replaced Harris as California AG). Second, Becerra could end up being nominated for Secretary of Homeland Security.

Tom Perez: 4-to-1 odds (20 percent)

Age: 59
Current role: Chair, Democratic National Committee (since February 25, 2017)
Education: Brown University (A.B.), Harvard University (J.D., M.P.P.)
Prosecutorial experience: Assistant Attorney General, Civil Rights Division (2009-2013); Deputy Assistant Attorney General, Civil Rights Division (1998); Attorney, Civil Rights Division (1989-1995)

If Perez were to become attorney general, it would be his second stint in the Cabinet, since he previously served as Secretary of Labor under President Obama (2013-2017). Perez has significant DOJ experience, having served as both AAG for the Civil Rights Division in the Obama administration and as a line attorney and later deputy assistant attorney general in the CRD in the Clinton administration. He’d also bring diversity to the Cabinet, as the son of two first-generation immigrants from the Dominican Republic.

But Perez’s current role as chair of the DNC hasn’t endeared him to Republicans. And even before this, he wasn’t the most popular on the other side of the aisle; he was confirmed as Labor Secretary without any Republican support, the first time in history that a Cabinet nominee won confirmation on a strict party-line vote. So he’s a bit of a long shot for AG (plus it’s possible he could get nominated for a return engagement as Labor Secretary instead).

The field: 10-to-1 odds (9 percent)

In craps, the field is a sucker bet — and that’s probably the case in the Biden AG sweepstakes too. The four frontrunners are so far ahead of the other contenders that two separate Cabinet speculation stories, those of the New York Times and Politico, feature the same four names.

But even if they might be long shots, some of the contenders in the field would actually be very solid picks for AG. One is Jeh Johnson, current Paul Weiss partner and former Secretary of Homeland Security (and former General Counsel of the Department of Defense; I had the pleasure of profiling him when he held that role). A second is Senator Amy Klobuchar, who served as Hennepin County Attorney before joining the U.S. Senate. A third is Judge Leslie Abrams Gardner (mentioned above), who served as an assistant U.S. attorney (2010-2014) before taking the bench.

All are qualified to serve and all would, I believe, serve admirably in the role. But there are challenges to their AG chances. Jeh Johnson is a victim of his own success: he’s in the running for Secretary of Defense (and would make history as the first Black SecDef), as well as Director of National Intelligence. Amy Klobuchar’s record as Hennepin County Attorney — during which she increased prosecutions, except against police officers accused of misconduct — garnered much criticism from civil-rights groups both during her presidential run and when she was being considered as a possible Biden VP (in the wake of the horrific killing of George Floyd in Minneapolis — part of Hennepin County, her former jurisdiction). And Judge Gardner, a relatively new judge (appointed in 2014), might not want to give up a lifetime appointment to the federal bench for an AG stint of uncertain duration.

So there’s a lot of uncertainty and fluidity in the race for attorney general. But one thing’s for sure: when it comes to possible AG picks, President-elect Biden enjoys an embarrassment of riches.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Jay Clayton’s Christmas list is pretty short: He wants the U.S. Attorney’s job for the Southern District of New York. Unfortunately for him, his patron and golfing buddy, the president of the United States, is very much on the naughty list for 78 million (and counting) American voters, and so the office he seeks is no longer really in Donald Trump’s gift. Unlike many others in the president’s orbit, Clayton seems to realize that the party’s over, as demonstrated by just how little he seems to care about his current job, chairman of the Securities and Exchange Commission.

It all started so innocuously. Just a simple batch of a dozen-and-a-half patent infringement lawsuits filed in East Texas. All asserting a single patent, aimed at porn content providers for providing content to a website that enabled certain video tagging functionality. In a column back in August, I discussed the strategic thinking behind the choice of defendants and venue, while noting that the true target, Internet porn megalith Pornhub, was itself embracing an active defense approach to the patent owner’s claims, as evidenced by its filing of a Delaware declaratory judgment lawsuit of its own. I foresaw that filing the DJ complaint would be just one element of what I expected Pornhub’s defensive approach would entail, forecasting that “I would not be surprised to see Pornhub file an IPR in short order” as part of Pornhub’s taking advantage of “the panoply of options available to a determined accused infringer, even what that party is initially attacked indirectly.”

Predicting that Pornhub’s active defense would include an IPR filing was not a hard call to make. So I was not surprised when an IPR was filed (against the initial patent asserted in the East Texas cases) in late September by Pornhub’s parent company. IPRs are a first-line defense for accused infringers in modern patent litigation after all. But the battle between Pornhub, its content partners, and patent owner Haulstars has escalated even further, giving us a prime opportunity to consider how patent owners and accused infringers aim to gain a legal advantage over each other in today’s patent litigation landscape. For now, it seems that mutual aggression is the order of the day, with neither side failing to seize an opportunity to expand the battle map.

We can assume that the end result of the legal wrangling will be some kind of settlement, as it is in the majority of patent disputes. To get there, however, determined opponents like Pornhub and Haulstars are engaging each other ever more often in a rapid-fire series of legal entanglements, spanning different courts and the USPTO. Which is precisely the state of affairs in our patent battle of interest. In addition to the original East Texas and Delaware patent cases, in a span of a few months we have added the assertion of eight additional patents against Pornhub by Haulstars in a West Texas filing docketed — a case filed on the same day as Pornhub’s own IPR filing. Four legal venues, nine total patents at issue, all before a single decision on the merits. Welcome to patent assertion circa 2020.

One easy conclusion is that neither of the combatants is scared to escalate against the other, with each espousing the view that projecting strength is the path to victory. Take Haulstars’ decision to add eight patents into the fray, while opening up a second Texas front, as an example. The message is clear — Haulstars sees this dispute as worth digging deep into its portfolio and putting its patent assets at risk in order to get the results it seeks. To that end, its complaint lays out a detailed invention story explaining how the patented technology is at the core of Haulstars’ own success in providing the  “de facto industry standard for interactive video.” In addition, the complaint goes into extensive detail as to how interactive video technology is used by Pornhub to make money, presumably lots of it. The signal is an obvious one. Haulstars is seeking “real money” from Pornhub, and will do all it can to get it. Just as Pornhub is doing its best to negate the threat from Haulstars with its own filings of the IPR and DJ complaint.

Along those lines, it was not surprising to see Haulstars itself decide to take an active approach in terms of trying to preserve its choice of Texas as its preferred venue for the adjudication of its claims. To that end, it filed a (still-pending) motion to dismiss in the Delaware declaratory judgment action, arguing that its Texas lawsuits against Pornhub’s content partners does not give rise to declaratory judgment jurisdiction. At the same time, those content partners have filed a motion to stay the original East Texas lawsuit pending the resolution of Pornhub’s IPR filing. Yes, it is a dizzying pace of filings and counter-filings, for a set of cases that are in their infancy. But that is how the patent litigation game is now played, at least for cases that are important to the parties.

Ultimately, absent settlement, these are just the opposing salvos in what is shaping up to be a multiyear battle by these companies across multiple fronts. In the interim, we can hope that Pornhub users will remain (blissfully?) unaware of the patent wranglings. For IP litigators interested in seeing how sophisticated litigants thrust-and-parry against each other, however, these cases are already very interesting to watch. We will see how things turn out as this patent porn war plays on.

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.

It’s officially Biglaw bonus season (even though only one firm has announced 2020 bonuses thus far), so why not give employees the added bonus of eliminating COVID-19 austerity measures and reinstating all salaries in full?

That’s what’s happening at Schiff Hardin, a firm that brought in $186,437,000 gross revenue in 2019, ranking 158th on the Am Law 200. If you recall, back in April, the firm instituted some of the largest associate pay cuts we’d heard about during the coronavirus crisis. While the majority of attorneys saw a 15 percent compensation cut, certain practice areas took an astonishing 50 percent hit. Staff making $100,000+ were also subject to up to a 15 percent cut, and the firm also laid off some staff members.

After months of suffering, all of this bad news is finally coming to and end.

A spokesperson for Schiff Hardin provided the below statement, which details all of the steps the firm took to make associates and staff whole:

Like other firms, Schiff Hardin has been carefully managing its business in response to the economic impact of the pandemic. Beginning in April we reduced some attorney and staff salaries. Despite the challenges 2020 has presented, the firm has performed well. We restored everyone’s salaries for the second quarter in August and for the third quarter in October. We are pleased that we will also restore salaries for the fourth quarter at the end of December, so that our attorneys and staff receive their full salaries for the entire year.

Congratulations to Schiff Hardin for its excellent performance. With their salaries restored, the firm’s employees are sure to have an extra happy holiday season.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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.

Mukuru, Africa’s leading remittance and money transfer provider, is extending its physical presence and agent network across Southern Africa. The African fintech company’s highly successful deployment of orange booths in the region underscores the true scalability of the Mukuru payments platform, which in turn, is being supported by the digitisation of key Mukuru functionalities. Despite the economic and political hardships in the region, which have been deepened by the global pandemic, Mukuru remittance flows across African borders have remained remarkably resilient in recent months – highlighting not only the growing trust in both physical and digital money transfers, but also the lifeline that remittances are providing to many families and communities at this time.

“As we grow our physical footprint in Southern Africa and bring our services to more people by way of booths and an entrepreneurial agent network, this growth is being complemented by the progressive digitisation of key steps in the Mukuru payments process,” explains Andy Jury, CEO, Mukuru. “With more and more digital access points over USSD, WhatsApp and the Mukuru App, for instance, customers are becoming increasingly comfortable with things like self-sign up, including digital KYC and onboarding, which is not only raising our brand presence, but is shifting customers that much closer to financial inclusion and higher levels of financial transaction sophistication.”

For instance, since the early days of the global pandemic and social restrictions in South Africa, almost half of Mukuru’s new SA sign-ups have come via digital self-sign up – indicating the appetite and need for such a capability.

African DNA, homegrown solutions

As a homegrown African fintech provider, Mukuru has underpinned its successful customer engagement strategy with the ability to ‘speak the language’ of its users, so to speak, and gain a grassroots understanding of the unique pain points that customers face in each market. Notably, customers are always able to talk to a Mukuru agent about any challenges or difficulties with the platform, whether it be a Mukuru agent in a booth, in a branch, over the telephone or via a virtual live chat function (in a language of the customer’s choosing, and often in their mother tongue).

“There is a balance that has to be achieved as a fintech provider that is both ‘high tech’ and ‘high touch’, particularly because Mukuru has been built on top of a homegrown African DNA that has always taken its cue from what customers are asking of us at any given moment,” says Jury. “In this way, by constantly gaining customer feedback and participation, we have been able to build a highly robust and resilient financial payments infrastructure across Southern Africa – with our physical presence now unlocking new value in the digital sphere and providing important, value-added services to our loyal customers.”

Testament to this impact, Mukuru has seen a 20-fold increase in monthly transactions within Zimbabwe over the past few months, for instance, as well as impressive year-on-year financial growth despite the global economic volatility. This growth has been cemented by dynamic regional partnerships, and strengthening relationships with regulators, major banks and other remittance and money transfer providers.

“Our partnerships continue to be a source of both innovation and steady growth in the region, with our homegrown technology solutions continually evolving to meet the day-to-day needs of our customers,” adds Jury. “We meet customers wherever they are, which today includes a variety of both physical and digital touchpoints.”

Post published in: Economy

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