Category: News Feeds

Every few years, a patent case comes around that captures the attention of retail investors. For those unfamiliar with the concept of a retail investor, the term is used to distinguish those playing the stock market with their personal capital from the professionals managing money on behalf of others, otherwise known as institutional capital. In the popular conception, a retail investor is usually depicted as someone using their retirement money (outside of a 401k or mutual fund) or other personal savings to buy stocks, usually in the hopes of scoring an outsized return — or at least a better return than what buying a index fund or some sort of other safe investment promises. Compared to investment professionals, retail investors are often derided for taking unnecessary risks with money they can usually ill-afford to lose, seduced by the siren song of a particular stock’s potential to generate a large return on their investment. Every so often, there is a patent litigation that promises to materially impact the fortunes of a publicly traded company — a potential binary result that can attract the attention of retail investors chasing a big winner.

In the early half of last decade, a number of publicly traded patent-holding companies attracted a lot of investor interest — on the strength of their patent litigation prospects in cases involving well-heeled defendants. While institutional investors also participated, the wild swings in share price brought upon by the changing fortunes of those companies in their respective patent litigations were often driven by retail investors. In the typical scenario, a thinly traded patent-holding company would have a case on file against a large defendant where the damages potential was significant relative to the company’s market capitalization. When even the smallest incremental victory was announced in the case for the patent holder, there would be an immediate bounce up in the share price. Likewise, when there was negative news from the case, there would often be a significant turn to the downside almost immediately. Even though such investing was not for the faint of heart — and the overall success rate for those companies was not the greatest — there were definitely those who made a killing riding the patent enforcement wave, often by getting out of the investment as soon as there was a spike in the share price on some favorable news.

In addition to those exemplar lottery-ticket enforcement situations where patent litigation and retail  investor interests intersect, there is another scenario where the potential for retail investors to either make or lose a lot of money in a short while due to patent litigation is found. Namely, pharmaceutical cases, especially where patents protecting monopoly revenues on a branded drug are being challenged by one or more drug companies looking to sell generic versions of that branded drug. The potential for stock price volatility as a result of that litigation activity is heightened where the targeted drug is a major contributor to the revenue stream of the publicly traded patent owner. As one can imagine, if the patents protecting that revenue stream don’t hold up, and generic competition is introduced as a result, the financial fortunes of both the branded drug company and its shareholders can be negatively affected in a significant way. And because retail investors are often attracted to volatile, high-growth potential pharmaceutical and biotech companies, those investors can often be in for a bumpy ride once patent litigation involving a company they invested in ensues.

As with all litigation, sometimes the patent-holding drug company wins and sometimes it loses. When it loses, the immediate downturn in the share price can be an unwelcome bombshell for investors — and disproportionately destructive to the retail investor base of that company. Often, those retail investors have no choice but to lick their wounds and resolve to do a better job managing their exposure going forward. But sometimes, they are motivated to do more. In a very interesting recent example involving branded drug company Amarin, a motion to challenge a negative patent ruling involving Amarin’s patent portfolio was filed by “an ad hoc group of physicians, patients, Amarin retail shareholders, and other concerned persons.” Definitely not something you see every day — or ever — in the patent world, but when a patent ruling sends a stock crashing 70%, you can imagine that at least some of that company’s shareholders will be motivated to try to take action. And in Amarin’s case, they did, with the consortium of interested parties filing a motion to intervene into Amarin’s failed case against the generics, coupled with a motion to vacate the negative patent ruling.

Unfortunately for the retail investors in the consortium, the effort proved a quixotic one, even though Amarin itself confirmed that it “did not provide [EPADI] with any support, whether substantive or financial, in the preparation of either motion.” Despite that disclaimer by Amarin, the district court did not look kindly on the consortium’s attempt to intervene, finding that it was both untimely and lacked standing. On the timeliness question, the court noted that the motion failed to make a winning showing on any of the three timeliness factors, in large part because the motion was filed a year after the court had issued its order invalidating Amarin’s patents following a bench trial.

Making matters worse for the filers, the court did not credit their argument that they had a significantly protectable interest in the case — despite the money that they lost due to the court’s invalidity ruling.

Nor did the court indulge the argument that the generics had somehow perpetrated a fraud on the court in their patent challenge. Instead, the court agreed with the defendants “that EPADI has no protectable interest in the property or transaction that is the subject of the suit because this is a patent case, and EPADI admits it has no legal interest in the patents-in-suit.” As such, intervention — even had it been a timely request — was denied, thereby also dooming the motion to vacate as well. At bottom, the court declined the invitation to incorporate the arguments of a group of nonpatent holders in a contested patent case, even when that group was largely made up of investors in the patent holder.

Ultimately, while the retail investor’s motion may have been an unusual one for a judge in a patent case to deal with, the circumstances do underscore a number of important points about patents. First and foremost, that patents can and do materially contribute to the value of a company, including publicly traded ones. As a result, investors in companies who can be impacted by patent litigation events must do their utmost to monitor those cases and calibrate their investment decisions accordingly. Second, that a patent is a piece of intellectual property that belongs to a legal owner — and even though others may have financial interests in that owner, including retail investors, when it comes to patent litigation those nonowners must content themselves with a view from the sidelines. As the effort by Amarin’s retail investors demonstrated, patents are personal.

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.

A longstanding battle between a private equity-owned hospital operator and Rhode Island reached new heights with the former threatening to close two hospitals in the state rather than submit to the attorney general’s conditions.

Los Angeles-based Prospect Medical Holdings, owned by private equity firm Leonard Green & Partners, runs 17 hospitals in five states, including Roger Williams Medical Center and Our Lady of Fatima Hospital in Rhode Island. In October 2019, Leonard Green announced plans to sell its 60% stake in the for-profit hospital chain to Prospect CEO Sam Lee and his business partner for $12 million. The ownership change is subject to state regulators’ approval — and while four states have approved, Rhode Island has not.

Following an analysis of Prospect’s finances, the attorney general’s office said it would impose a condition of approval that would require Prospect to put $120 million to $150 million in escrow “to purportedly ensure the financial viability of the hospitals,” according to an April 29 letter from Prospect to the attorney general.

“The imposition of such an escrow is unreasonable and unacceptable, [and] will adversely affect Prospect operations throughout the United States, and would leave Prospect with very little choice but to start the process to sell the hospitals in Rhode Island to an acceptable third party (and if the sale process is unsuccessful, to ultimately close them),” the letter states.

The Rhode Island Department of Health and attorney general’s office hired national accounting firm PYA to analyze Prospect’s financial statements. The firm found “long-term financial viability risks,” including that Prospect has reported limited liquidity and a highly leveraged position in recent fiscal years.

But Prospect argues that it is well-capitalized with liquidity and resources, and has approximately $325 million in cash and an unused J.P. Morgan line of credit of $200 million.

Rhode Island Attorney General Peter Neronha blasted the hospital chain and its private equity owners in an April 30 news release.

Neronha accused Leonard Green of wanting to walk away with $12 million “more in its pockets and absolved of billions of dollars in debt.”

“The people of Rhode Island deserve the truth. It is a hard truth: that those who claimed to care about healthcare here in Rhode Island and around the country cared much more – orders of magnitude more – about lining their own pockets than about the people they purported to serve,” he said.

The financial assurance his office is seeking is necessary for the continued operation of the hospitals, Neronha said.

“Under the proposed transaction, majority owner Leonard Green, having made its money at the expense of the financial health of the hospitals, now wants out. So be it. But that choice comes at a price: remedy the malady you have created,” he said. “You chose to get into healthcare. Act like you believe in it.”

On April 30, Prospect asked the attorney general for an additional short window to show they are prepared to provide the guarantees of financial security, which Neronha has granted.

Photo: santima.studio, Getty Images

The best way to prove that you’re totally competent is to refuse to take a psych evaluation. And if you really want to show ’em that you’re the compos-est mentis on the block, you sue the person asking you to get your head examined.

Just ask Lin Wood, the embattled attorney currently embroiled in litigation against 21 members of the Georgia State Bar’s Disciplinary Board, in both their individual and official capacities.

It’s been a wild year for Wood, who filed multiple suits seeking to overturn the election, opined that Vice President Mike Pence should face execution by firing squad, and floated a bizarre theory that Chief Justice John Roberts was a pedophile about to be brought down by Jeffery Epstein (who is still alive in this fever dream).

After Wood’s increasingly erratic behavior got him sued by his former law partners, the bar sent him a note in February saying, “Pursuant to Bar Rule 4-104, the Board hereby requests that you consent to a confidential evaluation by a medical professional” and threatening further action by the Board if Wood refused.

Spoiler Alert: He did just that. And then he sicced his thousands of followers on the members of the Disciplinary Board.

“I could use the help of an Army of Patriots due to the time limitation,” he said, sharing personally identifying information on Board members and asking for help tracking down links to Democrats or his nemesis, Dominion Voting Systems.

Wood posted almost 1,700 pages of confidential Bar proceedings outlining his alleged professional misconduct on Telegram, after which he filed the instant suit alleging violations of his constitutional privacy rights, seeking an injunction against the Board, and demanding compensatory damages for all the pain and humiliation he suffered when he himself revealed the sealed investigation to the wider public.

At which point, Lin Wood found himself back in the courtroom of U.S. District Judge Timothy Batten, Sr.

Judge Batten already had the pleasure of Mr. Wood’s company in December when the lawyer sued Georgia’s Secretary of State Brad Raffensperger over voting procedures for the senate runoffs. In that case, the court dismissed Wood’s claims as “astonishingly speculative.” The judge was similarly unimpressed by Wood’s legal work on the Georgia tentacle of Sidney Powell’s cracked Kraken, which was also dismissed in short order.

In his own motion seeking to disqualify Judge Batten, Wood admits that he was never sanctioned for his conduct in either of the above suits. Nevertheless, because the Bar makes mention of Wood’s behavior in the Kraken case, Wood insists that he must now depose Judge Batten to prove how extremely not crazy he really is.

“Plaintiff L. Lin Wood, Jr. intends to call Judge Batten as a material witness and testify in the State Bar of Georgia disciplinary proceedings and in this case,” he writes in his motion for judicial disqualification, adding later that “Plaintiff is in dire need of issuing Judge Batten a witness subpoena in this matter, but cannot do so, at this time, due to Judge Batten’s delay in recusing himself.”

Unfortunately, he’ll have to wait a bit longer. Or perhaps a lot longer, since Judge Batten denied the motion, noting that “information learned in court proceedings is not grounds for recusal” and making it entirely clear he has no intention of testifying as a witness in this case.

Further, the Court agrees with Wood’s assertion that it never sanctioned Wood for inappropriate or unprofessional conduct or otherwise took action or filed a complaint that would call Wood’s professional conduct or mental stability into question based on Wood’s 2020 cases in this Court. This obviates the need for the undersigned to testify as a witness.

Finally, nothing in the Court’s handling of Wood’s earlier cases would lead to impartiality, prejudice, or bias that would require recusal. The motion to expedite is denied as moot.

Can’t you just hear the eye roll?

Lin Wood v. Paula Frederick, et al. [Docket via Court Listener]

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

Ed. note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.”

To what extent are judges politically motivated in their decisions? Life tenure was part of the constitutional structure designed to insulate federal judges from such pressures.  Nonetheless, the party of the appointing president dictates much usable information on how judges at all levels of the federal judiciary vote.  The party of the appointing president used to be a common predictor for federal judicial votes before more advanced metrics were created to measure this element of judging.  

This is the second post in a series about Supreme Court monitoring of federal courts of appeals decisions. This post examines how political party is a useful proxy in assessing the ideology of current Supreme Court justices and looks at the practical relationship between appointing political party and the justices’ votes. It also presents one of the first comparative pictures of new Justice Amy Coney Barrett’s voting so far on the Supreme Court.

The data from this post are based on the justices’ votes in cases decided below by federal courts of appeals panels.  The courts of appeals judges are all coded as Democrat or Republican depending on the party of their appointing president.  The first figure looks at the justices’ votes so far in the 2020 Supreme Court Term. The metric shown is the percentage and count of the justices’ votes that disagree with the lower court judges’ votes. This means a justice voted to reverse or vacate in a case where the lower court judge was in the majority or the justice voted to affirm a decision when the lower court judge was in dissent.

Based on her votes so far this term, Justice Coney Barrett disagreed with votes by lower court Democrat-appointed judges more frequently than any other justice at 94.44% (she actually aligned with Justices Thomas and Gorsuch in all of her votes this term. The reason for her greater disagreement with Democrat-appointed judges is due to the cases she did not render a vote in.) She disagreed with lower court Republican-appointed decisions in a similar frequency to those of Justices Roberts and Gorsuch. Each of the six more conservative justices disagreed with lower court Democrat-appointed judges more frequently than with Republican-appointed judges. The conservative judges’ disagreement frequencies with Democrat-appointed judges in descending order were Justice Barrett, then Kavanaugh, Roberts and Gorsuch (tied), Thomas, and then Alito. All disagreed with Democrat-nominated judges more than 70% of the time.

The three more liberal justices were more balanced in their disagreement with Republican- and Democrat-related judges. Justice Kagan disagreed equally with Democrat- and Republican-nominated justices at just under 89% each. Justices Breyer and Sotomayor each disagreed with Republican-nominated judges a bit more than with Democrat-nominated judges with Sotomayor’s difference in disagreement with Republican- and Democrat-nominated judges a bit greater than Justice Breyer’s.

When we look from the 2018 term through the present, Justice Coney Barrett’s votes that disagree with those from Democrat-appointed court of appeals judges are even more pronounced compared to those from her colleagues on the Court. 

Across these two plus years of data the justices aside from Coney Barrett appear more balanced in their disagreement with Republican- and Democrat-appointed judges.  All more conservative justices disagreed with Democrat-appointed judges more than with Republican-appointed judges, and the opposite is true for the more liberal justices. Justice Kavanaugh is the most balanced justice with only a fraction of a percentage point difference in his disagreement with Republican- and Democrat-appointed judges. The maximum amount of disagreement was between Justice Barrett and Democrat-appointed judges at 94.44% and the minimum amount of disagreement was between Justice Thomas and Republican-appointed judges at just over 48%. 

Another way to look at this data is from the perspective of majority author for the Supreme Court. The next figure tracks the disagreement only between the majority authors on the Supreme Court and the lower court judges’ votes.

The majority author metrics do not show the same correlation with partisanship as the votes do. Here Justice Thomas’ opinions have a wide level of difference in disagreement with the votes of Republican- and Democrat-nominated judges. Justice Ginsburg has a high level of disparity in the other direction. Both are expected findings. Many of the other justices are more balanced.  Justices Alito’s opinions actually disagreed with Republican-nominated judges’ votes more often than with Democrat-nominated judges’ votes. Justices Sotomayor, Ginsburg, and Kagan’s opinions each disagreed with Democrat-nominated judges’ votes more than they did with Republican-nominated judges’ votes.

Peering at the micro level, the following figure shows which justices’ votes consistently agreed or disagreed with lower court judges’ votes in at least four instances.

We can see partisan relationships in many judge/justice relationships at this level. Justice Thomas for instance agreed with two Republican-nominated judges (compared to one Democrat-nominated justice) and disagreed only with three Democrat-nominated judges. In the opposite direction, Justice Sotomayor only disagreed with Republican-nominated judges.  Justice Alito was the only other justice to disagree with only judges nominated by presidents of one party and not surprisingly he only disagreed with only Democrat-nominated judges (like Justice Thomas he also only disagreed with judges on the Ninth Circuit this often).

We see in these data that party of appointing president is telling about judges and the decisions they make. This is especially apparent when we look at dual levels of judging. The insights on Justice Barrett are illuminating as they are some of the first datapoints we have of her as a Supreme Court justice that convey how she might vote moving forward. We see through this lens that Democrat- and Republican-nominated judges often disagree but not in every instance. We also see that judges and justices that are more ideologically moderate disagree less frequently than their more ideological counterparts. Finally, we see relationships between individual judges in the federal judicial hierarchy are meaningful as the justices voted in multiple cases with the same judges and often agreed or disagreed with them repeatedly.

Click here for data from the post.

Since childhood, I’ve had an intense fear of the ocean. Part of that fear stems from watching Jaws one too many times, but another part is a result of not being able to see or touch the ocean floor the further out you go from the shore. I acknowledged and recognized this fear about nine years ago when I was training for a race and decided to do an open water swim in Biscayne Bay in Miami on a Saturday morning. I still remember the panic I felt in not being able to see the bottom of the bay or what lied below my feet.

The fear of swimming in the ocean or bay is only one example of a seemingly obvious risk aversion. I’ve always weighed options to a fault and agonized when making decisions that present an “unknown.” When I pack for a trip, I think about every possible scenario that can happen, so I overpack toiletries, medicines, and clothing items, 75% of which don’t get used. Sometimes, my own anxiety about making decisions creates “analysis paralysis.” All the “what ifs” play over like a broken record in my mind.

Where did all this stem from? Since when did I become so hyper-focused on the fear of the unknown?

Lawyers, by their very training, are conditioned to be risk averse. From the time we enter law school, we are confronted with issue spotting hypothetical scenarios (i.e., the piano falling out of the window of the 80th floor of a building), delving further into seeing things from many angles, and always answering with, “It depends.” I chuckle as I think about the time in the bar exam prep course when the instructor said, “You will reach a point when you’re down to two choices, A and B. You agonize over which one to pick. A? B? A? B? Circle one and move on.” In theory, he’s right, but if you’re anything like me, you will agonize for a good five to seven minutes in the timed exam, select one, analyze that choice, analyze it some more, and contemplate changing it before you’re ready to move on.

I grappled with the fear of the unknown for many years into the practice of law and in my legal career — the uncertainly of not knowing what was on the other side of law as well as the uncertainty of what people would say if I left law to do something else. Yet, I had lots of mental roadblocks for nearly 12 years that hindered my happiness. What if this happens, then what do I do? What if I go this route, where will I end up? What will I be giving up instead?

My overanalytical nature prepared me well when I made my departure plans to leave law.

What if I didn’t bring in enough monthly cash flow from client projects? I created a nest egg to keep me afloat. I looked at where I was spending extra money and started to get honest with my finances. I began to live more frugally and made a financial plan before I would leave law. I gave myself a time frame to save up before taking the leap.

What if a recession hit and I stopped getting my target clients? I made an action plan on how I could pivot and leverage writing for new clients or leveraging my writing in new ways. It forced me to continue building up my writing portfolio and diversify it.

As time went on and I made my plans to leave the practice of law, all the “what ifs” started to feel less heightened. I thought of potential situations and I wrote solutions out. I made lists of pros and cons. I cross-referenced a checklist of goals. I had my life jacket ready for the next open water swim. Then I just did it. I stopped being so risk averse because I knew that if I didn’t take the leap in my career, I would always be left wondering what could have been. I would have rather failed and said at least I took the leap, than sat with paralyzed fear wishing I had done it.

If you’re at the point of wanting to leave law or wanting to take your legal career in a different direction such as going from Biglaw to in-house, here’s my advice: make your plan and act. The only thing that’s holding you back is your risk aversion.

Wendi Weiner is an attorney, career expert, and founder of The Writing Guru, an award-winning executive resume writing services company. Wendi creates powerful career and personal brands for attorneys, executives, and C-suite/Board leaders for their job search and digital footprint. She also writes for major publications about alternative careers for lawyers, personal branding, LinkedIn storytelling, career strategy, and the job search process. You can reach her by email at wendi@writingguru.net, connect with her on LinkedIn, and follow her on Twitter @thewritingguru.  

Ladies and gentlemen, it’s time to feast your eyes upon the best of the best in the 2021 law revue video contest. This year, the competition was superb — so superb, that for the twelfth edition of this contest, we decided to narrow down the competition to the top three videos.

Not only were these law students able to carry a tune, but they also had excellent comedic timing, and provided us with professional-grade production values. Our finalists’ videos were an absolute joy with recent rap earworms paired with a Broadway hit, providing an excellent soundtrack for this year’s law revue stylings. You stayed current, and the results were amazing. Nice work!

This year, your reviewers will be Staci Zaretsky, Joe Patrice, and Kathryn Rubino. We issue only advisory opinions; you hold all the power.

Who will follow the winners of years past into the annals of Law Revue history? It’s up to you, our readers! Do the right thing: vote early, and vote for the best.

Videos are listed in alphabetical order by school. Voting will close on SUNDAY, MAY 16, at 11:59 P.M. (Eastern time).

1. NYU LAW – GUNNER/SAVAGE

STACI: This was absolutely fantastic, and this line 100% nails the gunner experience in law school: “Sit back, listen to my stance, eyes roll every single time I raise my hand.” I really appreciated the near-perfect Megan Thee Stallion “AH.” Excellent job.
JOE: Concept is great, production is great. If I have any quibble it would be that it might need a lyrical bridge… maybe give the penultimate chorus a different set of lyrics to add a little variety as the song closes in on 4 minutes. But when I’m focusing on that, you know it’s pretty close to perfect.
KATHRYN: Well, isn’t this fun? Historically, the best law revue videos have the ability to transport even the most jaded senior lawyers back to their law school days with their succinct and relatable lyrics — this does that perfectly. And man, this song is a bop, gotta love it.

2. UT LAW AUSTIN – YOU GAVE BACK

STACI: The lyrics here are witty, and serve as a reminder that your law school is going to come after you for donations when you least expect it. Good production for a purely Zoom presentation.
JOE: It’s a risk to walk into the Hamilton songbook. Everyone knows it, it’s been done brilliantly by people before you, and there’s almost only risk of disappointment when you tread here. And yet… Texas pulls it off. The production values for a Zoom presentation are great with cute captioning to keep the audience visually engaged better than the default subtitles, a healthy variety of jokes between verses, all while maintaining a consistent overall theme. Fantastic.
KATHRYN: There’s a lot good in this submission, but what really gets me is the uniquely quarantine vibe — it’s the ultimate in Zoom performance. The graphics aren’t merely perfunctory, they add to the jokes. After a year+ of online living, I truly appreciate that.

3. UVA LAW – WAC

STACI: You know something is great when the chorus from the parody song gets stuck in your head. Elena K’s speed rapping is resume worthy.
JOE: Kagan’s verse is one of the best bits of the whole competition. That’s not a knock on the rest of the fantastic performances here, but Kagan’s whole bit got me genuinely laughing out loud.
KATHRYN: Apparently featuring the musical stylings of Megan Thee Stallion gave entrants a distinct advantage this year, and I’m HERE FOR IT. As others have noted, the skillz in the UVA submission are noteworthy, but the deft weaving of commentary is what really puts this one over the top for me.

It’s time to vote, everyone. Polls close on SUNDAY, MAY 16, at 11:59 P.M. (Eastern time). Click HERE to get out the vote among your friends and family.

Ed. note: A version of this column originally appeared on Original Jurisdiction, the latest Substack publication from David Lat. You can learn more about Original Jurisdiction on its About page, and you can subscribe through this signup page.

Bill Gates, the co-founder of Microsoft Corporation and the fourth-richest person in the world, made this announcement on Twitter on the afternoon of Monday, May 3:

His wife, Melinda Gates — actually, make that Melinda French Gates (she just added her maiden name to her Twitter bio) — posted the exact same statement at the exact same time. Given the size of the Gates fortune, estimated by Forbes at $130.5 billion, inquiring minds want to know: do the Gateses have a prenuptial agreement, aka a prenup?

At first glance, it might appear that the answer is no. If you look at the petition for divorce that Melinda French Gates filed against Bill Gates on May 3 (via TMZ), you’ll see question 11 and the parties’ response to it:

Question 11 refers to “a prenuptial agreement” and a “separation contract” as two different things. And they appear to be governed by two different statutory provisions, RCW 26.09.070 (separation agreements) and RCW 26.16.120 (“agreements as to status,” a category that includes prenups).

But the New York Times reported that the Gateses “are believed to have a prenuptial agreement.” So this made me wonder: could there be more going on here?

After tweeting out some preliminary thoughts on this, I heard from Thomas Kretchmar, a partner at Chemtob Moss Forman & Beyda, LLP in New York. Here’s what Tom, who specializes in matrimonial and family law, shared with me (standard caveats: he doesn’t practice in Washington state, none of this is legal advice, etc.):

Perhaps the situation is what it appears to be at face value: no prenup. But it seems to me that it’s equally plausible that what’s really going on is that there was a prenup, but the separation agreement expressly supersedes the terms of the prenup in its entirety, as an updated and more comprehensive settlement of the parties’ financial matters. Separation agreements commonly do that, or variations on that: they either supersede a prenup in its entirety, or they incorporate by reference an existing prenup either in whole or in part. It seems plausible to me that if the Gates separation agreement superseded the prenup in its entirety such that, in effect, the prenup no longer exists, then the attorneys who prepared the petition may have felt it unnecessary or even inappropriate to mention a prenup in that section of the petition.

If the document has been superseded out of existence, perhaps Washington state practice provides that you don’t make reference to it in that section. This is just a theory; I could be mistaken and perhaps there’s just no prenup at all. But for anyone who thinks that that doesn’t make sense, and that there must have been a prenup, then the theory above certainly reconciles some of the disconnect created by what the petition appears to indicate.

It may also be worth noting that a separation agreement is really, for all pertinent intents and purposes, a final settlement agreement. Matrimonial attorneys use the term “separation agreement,” but when you think of it as a final settlement agreement (which is really what it is), that helps understand why a separation agreement could and would supersede and/or incorporate a prior agreement such as a prenup or a postnup.

Thanks to Tom Kretchmar for these excellent insights. You can follow him on Twitter at @tkretchmar, and you can read additional analysis from him in this interview with Town & Country magazine.

So TMZ’s confident declaration that “there is NO PRENUP,” which numerous other media outlets have relied upon in reporting the same, might not be correct. As Bill Clinton famously quipped, “It depends upon what the meaning of the word ‘is’ is.” Maybe there “is” no prenup, but there was a prenup, and it just got superseded — fancy legal-speak for “supplanted” or “replaced” — by a separation agreement.

Would Bill and Melinda French Gates have wanted or needed a prenup when they got married back in 1994? According to CNET, citing Forbes, “By the time they were married in 1994, Gates was already the richest person in the US, with more than $9 billion in assets.” As Rafal Konopka similarly noted on Twitter, “At the time of his marriage, Bill Gates was already [one of the richest men in the United States]. He forced his wedding [vendors] to sign NDAs. This is not the kind of man who would risk losing control of his company to the whims of a local court.”

If we really want to know if the Gateses ever had a prenup, we’d need to ask one of the many lawyers involved in this divorce (although they’re probably not talking, having been well paid for their discretion). Melinda French Gates is represented by no less than three different law firms:

Meanwhile, Bill Gates is represented by a trio of firms as well:

• Ted D. Billbe, like Sherri Anderson, a seasoned divorce lawyer based in Bellevue, Washington;
• Wendy Goffe, a trusts and estates partner in the Seattle office of Stoel Rives; and
• Ronald Olson, Robert Denham, and Eric Tuttle, partners at the high-powered, super-elite law firm of Munger, Tolles & Olson.

This might seem like an awful lot of legal firepower for what appears to be an amicable divorce. But $130.5 billion is an awful lot of money.

If there is/was a prenup, then I’m guessing that Melinda French Gates will not end up with the $36 billion that Mackenzie Bezos received upon divorcing Amazon founder and CEO Jeff Bezos (although I wouldn’t worry too much about French Gates; she has already received $2.4 billion in publicly traded securities since the divorce). And I’m guessing that she’ll be okay with that.

If Bill and Melinda Gates wanted to maximize their fortunes, they wouldn’t have already given away so much of their money to the Bill and Melinda Gates Foundation, which has an endowment of $50 billion. And they wouldn’t have created and signed the Giving Pledge, promising to give away at least half of their fortune.

Regardless of who’s getting what, and even if it’s for the best, it’s always sad to see a longstanding marriage dissolve. The Gateses were married for 27 years and have three children together, ages 18 to 25. May Bill and Melinda Gates find happiness in their separate lives going forward, and thanks to them for the great charitable work that they have done and continue to do.

David Lat, the founding editor of Above the Law, is a writer and speaker about law and legal affairs. You can read his latest writing about law and the legal profession by subscribing to Original Jurisdiction, his Substack newsletter. 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. Before entering the media and recruiting worlds, David 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 davidlat@substack.com.

There are less than two months until five states begin allowing athletes within their respective jurisdictions the ability to monetize their names, images, and likenesses for commercial gain. Those athletes will have the ability to hire agents to assist them with procuring and negotiating marketing and endorsement contracts. Agents are starting to question what that representation will look like and whether they will be permitted to use a tool that is commonly referred to as a “marketing advance.”

What Is A Marketing Advance?

A marketing advance is a sum of money that is offered and provided by a sports agent to an athlete with the stated intention that it be paid back by the player to the agent as the player earns endorsement and marketing income. Often, the player either never earns enough money off-the-field to fully reimburse the agent the full amount of the advance, or the agent, as long as the player remains a client, chooses not to enforce the reimbursement provision in a contract containing the marketing advance. Occasionally, such a contract will stipulate that the player must fully reimburse the agent if the player ends the player-agent relationship.

Why NFLPA Contract Advisors Shouldn’t Provide College Athletes With Marketing Advances

Many sports agents, in particular those who represent NFL players, have asked me whether they should feel comfortable providing college athletes with marketing advances to be recouped against future NIL activity. The answer is that they would be wise stay away from such activity.

If such activity would serve to jeopardize a player’s eligibility, then it would certainly violate the NFL Players Association’s Regulations Governing Contract Advisors. At a minimum, such a payment would likely be deemed an inducement payment for the player to enter into a standard representation agreement at a later date, which is prohibited under the regulations.

Section 3(B)(2) of the regulations prohibits contract advisors from “providing or offering money or any other thing of value to any player or prospective player to induce or encourage that player to utilize his/her services.”

Section 3(B)(3) of the regulations prohibits contract advisors from “providing or offering money or any other thing of value to a member of the player’s or prospective player’s family or any other person for the purpose of inducing or encouraging that person to recommend the services of the Contract Advisor.”

How Do NFLPA Contract Advisors Get Away With Providing Marketing Advances To Professional Athletes?

Marketing advances have been upheld in NFLPA arbitration and are not deemed to be, per se, improper inducements in violation of NFLPA regulations. However, timing tends to be of penultimate importance concerning classifying the marketing advance as something other than an inducement.

A marketing advance has not been interpreted as an improper inducement under the regulations for an agent to enter into a standard representation agreement with a player if the advance is provided at the same time that the standard representation agreement is entered into by the parties. No NFLPA contract advisor is known to have been disciplined for providing a marketing advance as long as it was provided when signing the standard representation agreement or afterward.

If an agent were to provide a marketing advance to a college athlete, it would be well before executing a standard representation agreement and thus putting the agent at risk of exposure. For example, under Florida’s name, image, and likeness law, a university may not prevent an athlete from obtaining professional representation by a sports agent strictly to secure compensation for the use of the athlete’s name image or likeness. However, agents are not permitted to enter into more expansive representation agreements, such as the NFLPA’s standard representation agreement, with college athletes or else the college athletes will forfeit their remaining eligibility to participate in intercollegiate athletics competitions.

Therein lies the rub. A marketing advance must be offered to the college athlete at the same time or after the player signs a standard representation agreement, and thus an agent offering such a marketing advance to a college athlete runs the risk of being disciplined by the NFLPA.

This should be enough of a reason to cause agents to keep clear from offering and providing college athletes with marketing advances. That said, agents would also potentially be violating state athlete agent laws as well as the federal Sports Agent Responsibility and Trust Act by engaging in such activity.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

As more and more firms announce their plans to bring associates back to their newly reopened offices on hybrid schedules, at the same time, more and more firms are hiring associates who will be completely remote. This hiring trend just goes to show that flexibility is key in the new normal.

Firms are seeking talent in markets outside of their office locations partly due to the recent skyrocketing demand for associates, particularly in areas such as corporate work and intellectual property. The pandemic pushed many young lawyers out of Big Law or the profession entirely, adding to the crunch.

“Firms came out of the doldrums and they’re raring to go,” said Andrew Glynn, a recruiter and managing director with Major, Lindsey & Africa’s associate practice group. “They’re hiring at a rate that I have not seen in five years.”

Firms like Husch Blackwell, Orrick, and Perkins Coie already employed attorneys outside of their existing office spaces, but after the past 15 months, they’ve been inspired to onboard even more remote employees. How’s that been going?

At Orrick, they’re creating a commission to put in place policies for a virtual office to create structure for more remote associate hires. Siobhan Handley, the firm’s chief talent officer, noted in an interview with the American Lawyer that the firm’s last five new partner classes included attorneys who lived and worked in places without Orrick offices. “We were ahead of the game in knowing that physical presence in an office does not equate to success,” she said. “Now there’s a lot more widespread appetite for it.”

Over at Perkins Coie, chief talent officer Jennifer Bluestein says she recently approved remote associate offers in several different states. “Matters and clients require us to work across offices anyway, so dictating where we hire someone seems to be a fairly artificial construct,” she said. “That doesn’t mean we’re ready to hire for every position in any state. But we’re not going to say, ‘You’re in X state, we’re not going to talk to you.’”

Husch Blackwell, after announcing the opening of its virtual office (referred to as “The Link”) in July 2020, now has 57 attorneys working remotely without a home office. “It’s a tremendous opportunity to open up our pipeline of new talent and cast a wider net than ever before,” [products liability partner J.Y.] Miller, who serves as managing partner of the new office, told Am Law. “When we post positions now and post them for The Link, we’re getting resumes from people all over the country. It’s really opened up a new level of talent and interest.”

With associate hiring all the rage, will your firm be hiring remote employees?

More Large Law Firms Are Embracing Remote Associate Hires [American Lawyer]

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.