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Houston Methodist, a Texas-based health system, is facing legal pushback for its policy requiring all employees to receive the Covid-19 vaccine or risk losing their jobs. In the face of this opposition, the health system is defending the policy, stating that it is the “duty” and “privilege” of healthcare workers to do what it takes to protect patients — including getting vaccinated.

About 117 employees have signed on to the lawsuit, filed Friday, rebutting the health system’s policy ordering employees to get vaccinated by June 7 or face suspension, and eventually, get fired.

The vaccination policy is forcing Houston Methodist employees to be “guinea pigs” in a medical experiment as none of the Covid-19 vaccines available in the U.S. have received full Food and Drug Administration approval, the lawsuit alleges. Though several vaccine developers have filed for full approval, none have received it as yet and vaccines are still approved under emergency use authorization only.

Further, the policy violates the Nuremberg Code, a medical ethics code established during the Nuremberg trials after World War II that requires informed consent to participate in a medical experiment, the suit claims.

The health system did not “inform its employees that they are taking part in a medical experiment and that their consent is required for this under the Nuremberg Code,” the lawsuit states. “This [vaccination], as a matter of fact, is a gene modification medical experiment on human beings, performed without informed consent.”

The primary reason for this policy is to boost profits, the suit claims. The health system is promoting this policy in its marketing materials to entice patients.

Houston Methodist denied these allegations, stating that the policy is meant to protect patients and that it is legal for healthcare organizations to mandate vaccines, as they have done with the influenza vaccine since 2009.

In addition, “Covid-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental,” said Dr. Marc Boom, president and CEO of Houston Methodist, in an emailed statement Friday. “More than 165 million people in the U.S. alone have received vaccines against Covid-19, and this has resulted in the lowest numbers of infections in our country and in the Houston region in more than a year.”

As of May 28, 99% of Houston Methodist’s 26,000 employees have received the Covid-19 vaccine, Bloom said.

“We are extremely proud of our employees for doing the right thing and protecting our patients from this deadly virus,” he said. “It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way.”

Legally, U.S. employers can require all employees physically entering the workplace to be vaccinated for Covid-19, according to guidance issued Friday by the federal Equal Employment Opportunity Commission. However, they do have to provide “reasonable accommodations” for those who cannot get vaccinated due to religious beliefs or for medical reasons.

Houston Methodist is allowing religious and medical exemptions for those who qualify and is also making exceptions for pregnant employees or those undergoing fertility treatments, said Gale Smith, a health system spokesperson, in an email.

But the employees suing the health system want the Covid-19 vaccination policy struck down completely. They are also requesting that the court award them injunctive relief and attorneys’ fees.

Photo: LarisaBozhikova, Getty Images

Biglaw firms are doing everything they can to hire new associates in this super-competitive, post-COVID market, and to snatch top talent, some of them are expanding their searches outside of their traditional recruitment criteria. If you work in a sought-after corporate practice area but don’t have a degree from a top law school or have never worked at top Am Law firm, then it may be time to brush off your resume because opportunity apparently awaits.

“In the past, they would have easily gotten a rejection,” said Katherine Loanzon, New York-based managing director of Kinney Recruiting, in an interview with Bloomberg Law. “But now, because the talent is so tight, they’re getting a response. They’re getting hired.” Michelle Fivel, a partner at Major Lindsey & Africa, elaborated, saying, “The last time I saw this really happening to the degree that it’s happened was back before the last recession. Those are things that only happen when it’s a white-hot market—and it is a white-hot market right now.”

Typically, Am Law 50 firms poach associate talent from peer firms. But over the last few months, associates from regional firms are getting scooped up by top firms. Those firms are primarily concentrated in corporate transactional groups like capital markets, financing and mergers and acquisitions, said Loanzon.

“It’s so unusual because in the past, its almost unheard of, and now it’s great for these associates who may never have had that opportunity to go to a global law firm,” Loanzon said. This is particularly true if they have the right experience in terms of M&A and capital markets, she said.

Firms are also straying from their T14 law school fanaticism as they expand into secondary market searches because a top law school in a smaller market isn’t necessarily one of the nation’s most elite. Just ask Jennifer Bluestein, chief talent officer at Perkins Coie, who says, “Somebody who took a scholarship and went to a lower ranked law school because they didn’t have the finances and didn’t want to take the risk of $120,000 in loans is still the same person had they gone to the more expensive T14 law school.” How nice that firms have finally come to this realization.

The pandemic has given some associates more freedom to work remotely, and now it’s giving others opportunities to work for global law firms. For those looking for a chance to hit it big, let’s hope this curve isn’t one that gets flattened.

Some Law Firms Change Hiring Habits in Hunt for Associate Talent [Bloomberg Law]

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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.

In some ways, this is the tale of two judges.

Judge Kenneth K. Lee wrote the opinion in Briseño v. Henderson, but looming over the whole sad filing was Judge John B. Owens, who joined Judge Lee on the panel.

Judge Owens has a reputation in these pages for dropping occasional pop culture nuggets into opinions, like comparing the complexity of the Guidelines to “reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls” or citing a classic Twilight Zone to warn of the dangers of judging aesthetics through the eye of the beholder. It’s nerdy, it’s funny, but it’s most importantly reserved and deployed mostly to demystify by drawing upon the grammar of our times.

Judge Lee must have wanted to emulate that vibe. It goes over like New Coke.

We can perhaps sum up this case as “How to Lose a Class Action Settlement in 10 Ways.”

That’s the opening line of the opinion just to set the tone. And while left in the wilderness this might come off like the canned opening of that one wedding speech everyone dreads, it’s just the opening salvo of non-stop cringe.

While courts should not casually second-guess class settlements brokered by the parties, they should not greenlight them, either, just because the parties profess that their dubious deal is “all right, all right, all right.”

Second paragraph! He knows who Matthew McConaughey is, which passes as clever because… Memberberries.

Still hoping to strike oil…

The case is a class action about canola oil. Get it?

In early 2018, the Smucker deal hit an insurmountable regulatory jam.

To be clear, I possess a disturbingly high tolerance for dad jokes and have devoted the latter part of my legal career to the cause of lawyers taking themselves less seriously and this is grinding upon my last nerve. Alas, we’re just getting started.

Only one class member opted out of the settlement. M. Todd Henderson, a law professor at the University of Chicago…

Just when you thought this case couldn’t get any dumber, Todd Henderson makes an appearance. The Algonquin Roundtable this case is not.

Not that the substance of this case matters all that much, but canola oil made false claims on its label, the class action settled, and because so few people opted into the settlement, the lawyers ended up taking home more money than the class. So Henderson and class action critic Ted Frank pushed back in the continuing effort to erode the incentives behind public protection lawsuits.

ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory. [FN: As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.]

That simile was more forced than making Rey change her name to Skywalker. Is he making a metareference to his own proclivity for forced, unnecessary asides rammed into the text for no reason other than a cloying nostalgia play?

Every year, tens of thousands of first year law students learn about Erie R. Co. v. Tompkins, and, soon after that, they become second-and-third-year law students with poor understanding of the doctrine. 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938). Some of these students take the bar exam, fail, and try again or do other things. Others pass and become attorneys who still do not understand Erie. Granted, the difference between substantive and procedural law is sometimes fuzzy.

I just want everyone to understand this imagined journey from 0L to failing the bar exam exists solely as preamble to “Erie is not implicated here.” Maybe work on a tight five before planning a Netflix special.

Now comes the conclusion. Let’s play a game… what pop culture ephemera do you think gets clumsily bolted onto the end of this opinion?

A) The Theme Song From The Facts Of Life (you take the good, you take the bad)
B) Something Snide About The Room Where It Happens From Hamilton
C) The Arthur’s Sister Meme About Not Being Able To Read
D) “Class action counsel, in many ways, resembles Leeroy Jenkins…”

Congratulations Hamilton folks.

Ugh.

Professor Kreis says it best:

And “measurably” doesn’t even have to be “substantially.” Judge Owens throwing in something about a Raiders reference didn’t add much more than just calling the Guidelines “a puzzle” or something but it evokes a clear feeling. Compare with “here’s the basis of a bad SNL skit about Matthew McConaughey.”

I’ll even go one step further than Professor Kreis, it doesn’t even have to add to the opinion as long as it doesn’t detract from it. If Judge Lee ends after that atrocious “lose a guy in 10 days” reference — holy hell, can we take a second to remember that he took time to reference that train wreck? — we’d all write it off. It’s almost like he put together a writers’ room to workshop jokes and references he thought Judge Owens might potentially make and then decided to use every single one of them.

The point is, Your Honor, don’t quit your day job.

Wait a minute, what am I talking about? He’s a Trump judge rammed through on a straight party line vote. Absolutely quit your day job. Frankly, we think you’re basically the next Carson.

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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.

In the aughts, those bucolic early days of the internet, people would frequently be confuddled by The Onion. That whole “satire” thing can be rough for the uninitiated and not everyone is familiar with Snopes. And don’t even get me started on the shitshow of April Fool’s Day, when even reputable news sources try to play “gotcha!” But in the 20s, the downside is up, we’re through the looking glass, and demonstrably false conspiracy theories are mainstream.

All of which is to say, in the age of Q, you have to debunk even the dumbest stories, because I mean, I would have thought “the Democrats are running a child trafficking ring through a pizzeria” was sufficiently batshit to not need formal fact checking, but well, time makes fools of us all.

Anyway, there’s a OBVIOUSLY FAKE rumor circulating that Amy Coney Barrett has been placed under house arrest by the military. And as these things do, it’s been making the rounds, appearing on Instagram (complete with a disturbing slew of hashtags), posted to Facebook, and on YouTube.

In addition to the sheer level of absurdity in the piece, Coney Barrett has been seen, in public, after the date of her supposed arrest. Plus, the post has been traced back to a website that claims to be satire, as reported by USA Today:

The outlet that published the claim has previously published false claims about the arrest of high-profile politicians. Real Raw News defines itself as an “independent publisher” that “explores content often avoided by the mainstream media.”

A disclaimer on the site’s “About Us” page says information on the site is for informational, educational and entertainment purposes and its content contains “humor, parody, and satire.”

Despite the disclaimer buried on the About Us page, the story has been shared with the claim that the site is “generally very accurate.” But, we live in an era where outrage is currency and the former president’s adherence to a lie about the election has spurred very real voting rights restrictions around the country. So, as the Supreme Court looks ready to take an unpopular stance and demolish reproductive freedom, “satire” that drums up some good, old fashioned outrage against liberals and paints Coney Barrett as a martyr (and let’s be honest, Coney Barrett is probably going to pen the decision overturning Roe) is likely designed to play a much larger role in the culture wars.

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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).

More law firms announce that they aren’t expecting associates to be back full-time in the office in the fall. More law schools announce that they aren’t expecting enrolled law students to be in class at all. And more Kardashians announce that they aren’t lawyers yet.

For almost as long as this website has been around, it has been writing about the impending death of the carried-interest loophole. It has been a priority of administrations Democratic and Republican, pretty much rhetorically in the latter case but rhetorically important, all the same, because it seems like such an obvious fix, directed as it is against rich and politically unpopular hedge and private equity fund managers to close what looks like an incredibly unjust windfall, being taxed on the money they earn for earning other people money at a much lower rate than the money earned by, say, their janitors for keeping their offices clean. And, best of all, it’d be almost entirely symbolic, both because it wouldn’t really raise very much in revenue and because everyone knows the aforementioned rich and politically unpopular hedge and private equity fund managers will find some other way to avoid paying the full freight on the millions and billions they earn each year.

* Dominion Voting Systems is trying to hold MyPillow liable for statements made by its CEO about the election. Might be time for MyPillow to hit the mattresses… [Business Insider]

* Derek Chauvin is purportedly financially unable to hire a lawyer to fight off federal civil rights charges. [Insider]

* A Maryland lawyer has been disbarred for allegedly failing to file an appeal and then lying to a client about the situation. [Daily Record]

* The New York Attorney General is ordering the CEO of Kodak to testify about alleged insider trading. [CNBC]

* An asparagus recipe was inadvertently included in a Belgian legal database. Would have expected a waffle recipe… [CNN]

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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.

What’s The Reopening Plan? Paul Hastings, Kelley Drye, and Dechert announce their plans.

Judge Complains About Consequence Of Saying The N-Word: Says the punishment was “personal.”

These Folks May Not Understand The Constitution: Just a theory.

The Path To A Sexy Legal Career: Maybe it isn’t as glamorous as you’d hoped.

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

According to data collected as part of the Am Law 200 ranking, by what percentage did headcount decrease in the Second Hundred, i.e., firms ranked 101-200 on the list, in 2020?

Hint: A large chunk of headcount loss came from the nonequity partner tier, which equity partners increased by 2.6 percent.

See the answer on the next page.

One of the more fascinating IP stories of 2021 is unfolding before our eyes, tying together the disparate strands of patents and copyrights with the unbelievable market focus on monetization of blockchain technology. On May 27, 2021, UC Berkeley announced that it was jumping on the Non-Fungible Token (NFT) bandwagon, with an upcoming auction on June 2, 2021, of patent invention disclosures owned by the university that are tied to Nobel Prize-winning inventions. With proceeds going to fund continuing research, the effort by Berkeley is clearly intended to capitalize on the frothy market for NFTs of all stripes, led by the notorious sale of a Beeple NFT for nearly $700 million and the sale of NBA highlights on NBA Top Shot for hundreds of thousands of dollars each.

I freely admit that I could benefit from a deeper understanding of NFTs and how we got to this point, where a major research university is promoting an auction of patent invention disclosure NFTs. I know enough to realize that Berkeley is not actually allowing a buyer to purchase any of the underlying patent rights and that, if there is a market for the NFTs, it behooves Berkeley to try to bring some money in from them. At the same time, I believe that I and this audience can benefit from hearing from a lawyer with deep experience in this area, who has published on the topic and is actively representing clients working on NFT platforms and projects. Thankfully, I found one, and he has graciously agreed to share some insights with this audience.

My interviewee is Jeremy S. Goldman, a partner at Frankfurt, Kurnit Klein + Selz PC with more than 15 years of experience counseling clients and litigating disputes primarily in the media, entertainment, and technology industries, with significant subject matter expertise in intellectual property, First Amendment, contract, business, and partnership law. Jeremy leverages his background as an early digital native and lifelong computer whiz to advise clients on novel issues at the intersection of IP and technology. He helps clients design and execute IP protection strategies and is a lead counselor on NFTs, representing platforms and creators in this exciting new field. An extensive writer and speaker in these areas, The Legal 500 has recognized Jeremy for his work on high-profile copyright and privacy matters.

Despite his busy practice, Jeremy was kind enough to agree to this interview, which I am honored to present to this audience.

As usual, I have added some brief commentary to Jeremy’s answer below but have otherwise presented his answer to my question as he provided it.

GK: How did you become an NFT lawyer?

JG: My NFT practice is the culmination of a few life trajectories. I got into computers and networking at a very young age and discovered the Internet long before most people had heard of it. I spent the late 90s working at Internet startups, which is when I learned about this new law called the Digital Millennium Copyright Act. I decided to become a lawyer, and for the past 15 years have been an IP, media, and entertainment litigator who also counsels clients on legal issues at the intersection of technology and law.

At the beginning of this year, my law school classmate and blockchain guru, Professor Aaron Wright, tipped me off about NFTs before they went mainstream and caught the interest of the wider legal community. As a lifelong technologist and IP lawyer, I immediately recognized NFTs’ potential to serve as an incredible new vehicle for intellectual property. I published a Primer on NFTs and Intellectual Property, which went pretty viral — at least for a legal piece. Because of my background, I find I’m able to bridge two worlds by explaining IP and legal concepts to the blockchain community and blockchain concepts to the IP and legal community. I’ve now had the opportunity to work with dozens of existing and new clients on their NFT and blockchain-driven platforms and projects.

GK: What a great story of how Jeremy’s disparate experiences and talents have led him to focus on this exciting new area. As for his publication, I feel lucky to have stumbled on Jeremy’s primer in my LinkedIn feed. It has been fascinating to see the media stories about big-ticket NFT “sales” and the primer does a wonderful job of highlighting the various IP issues arising as a result of the market popularity of NFTs. Read it — you will learn something.

GK: What is an NFT?

JG: NFT stands for Non-Fungible Token. At its most basic level, an NFT is a digital asset associated with another object, typically a digital one. The ownership of an NFT is recorded on a blockchain (Ethereum is the current leader), which is a list of transactions — like a ledger — distributed and replicated across multiple networked computer systems. Blockchain transactions are immutable, meaning there’s no undo button. Unlike cryptocurrencies, which are fungible tokens traded on blockchains, each NFT is unique because of its reference to a particular object.

NFTs have been created for an ever-expanding list of new and existing intellectual property, including digital and programmable art, collectibles, video game assets, sporting moments, virtual real estate, music albums, Tweets, fast food, memes, and more. NFTs are typically purchased with cryptocurrency (like Ether) and stored in cryptowallets (like MetaMask).

What makes NFTs special is that they enable scarcity — or at least the perception of scarcity — of digital objects, which to date have been defined and plagued by the ease of their replication and proliferation (think Napster).  While anyone can view and download a piece of digital art, only one person may be on record as the owner of the NFT connected to that object. For the same perplexing reasons that humans ascribe value to other rare objects, people have ascribed value — sometimes millions of dollars’ worth of value — to certain NFTs. There are now dozens of marketplaces, auction houses, and specialty shops that deal in NFTs, with more platforms and projects popping up daily.

GK: Perplexing is a great word to use when we think about some of the recent economic activity associated with NFTs. But even if we don’t fully understand the market appeal, informed IP lawyers would do well to learn about the topic. Whether the NFT phenomenon has legs may be an open question, but as Jeremy implies, the daily arrival of more NFT-focused platforms and projects demands our current attention.

Next week, we will hear from Jeremy about what IP and other legal issues are implicated by NFTs.

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.