Category: News Feeds

We have some unfortunate news to report from Florida, where a former prosecutor turned criminal defense attorney recently passed away unexpectedly during a court hearing being conducted via Zoom.

Patrick Trese, 50, is said to have collapsed during an early-termination-of-probation hearing when he was overcome by a heart attack. Trese later died as a result of the heart attack. The Daily Business Review has additional details on whether Trese’s death will be part of the record in that case:

“We do not know if the video from the Zoom hearing is part of the official records or not,” [Sean Ford, an attorney that worked at Trese’s law firm,] said. “Are the court reporters getting the Zoom video or are the court reporters getting audio from the courtroom and transcribing off the audio? And is the video part of the official record of the day?”

Sanford L. Bohrer, a partner at Holland & Knight in Miami, said the horrific event was likely not recorded by video.

“In criminal court, there is usually an official court reporter who took down the words to make sure they have accuracy, but unless there were witnesses, I don’t think anyone would care to record the video,” Bohrer said. “That type of transcript shouldn’t get filed because of the nature of the hearing.”

Trese is remembered by colleagues as a kind and compassionate man who “knew the law, but he also understood human behavior” so he could achieve “good, reasonable, just outcomes.” Another former colleague who became a personal friend referred to Trese as “phenomenal.” Ford said that in the past 30 years, Trese was “one of the best attorneys [he’d] worked for.”

We here at Above the Law would like to extend our condolences to Patrick Trese’s family, friends, and colleagues during this incredibly difficult time.

Broward Lawyer Collapses on Zoom Call, Dies of Heart Attack Suffered During Hearing [Daily Business Review]

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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.

Given the way things are going, Jay Clayton is probably not going to be Securities and Exchange Commission chairman for very much longer. (He’s also probably not going to be a U.S. Attorney, either.) To give him credit, he’s made the most of his last few months, but at this sad point, he is really quite out of fucks to give. So while even in June, he and soon-to-also-be-unemployed buddy Bill Barr were still at least going through the motions of trying to bring the folks who so roundly humiliated Clayton’s SEC by hacking it and then making millions trading on what they found before Clayton & co. even realized—despite having more or less admitted he wasn’t that interested in bringing them to justice—with the days getting shorter both literally and figuratively, he’s decided he’s not interested in giving his successor an excuse to dig any deeper into how shoddily run the old SEC was under his watch.

Many pundits have seen only clouds over our 2020 presidential race:  The coarsening of our national discourse, distrust in elections, nasty partisanship, autocracy.

Isn’t there anything good on the horizon?

Here’s the silver lining that I spy:

COVID-19 caused America to try mail-in voting on a large scale. That experiment worked. We had massive turnout in this election, and at least part of that increased turnout was because we didn’t have to worry about the usual hassles of in-person voting: The weather on Election Day, getting the kids off to school and still getting to the poll on time, waiting in long lines, broken voting machines, and the rest.

I don’t think we’re going back to mandatory in-person voting. Mail-in voting works, and it’s here to stay.

So I offer one silver lining of this election that I’m pretty confident about, and one about which I’m less sure.

I’m confident that we will, in future elections, have more civic participation than we had in the past. If a person can receive a ballot in the mail, leave the ballot on the kitchen table for a couple of weeks, study the ballot (and any other materials) at their convenience, and then drop the ballot in the mail, then more folks will vote than if we require in-person voting.

I view civic participation as a good thing, and I’m delighted to see in the clouds of this election the silver lining of more voters.

Here’s the second silver lining that I see, far more speculative than the first.

If we regularly have higher turnout for elections, then the parties will no longer plot to win elections by “turning out the base” — hoping that a small number of motivated partisans will decide elections in which overall turnout is low. That strategy will no longer work, because turnout will be high.

If parties can’t win elections by turning out the base, what will they do instead?

Here’s a thought: Try to persuade voters on the issues.

This would force the parties to the center, trying to win elections by assembling coalitions that range from the center-left to the center-right.

If this speculation is correct, then perhaps we’ll come to enjoy the new environment. Perhaps the moderation prompted by increased turnout will offset in part the nasty partisanship, fueled by social media and certain media outlets, that makes us all hate each other.

One last thought:

As Donald Trump concludes his time in office, there will be plenty of entertainment as he thinks about his future: Does Trump pardon himself for all federal crimes? (I bet yes; there’s plenty of upside, and very little downside given that he’s already lost the election.) Or maybe Trump resigns the presidency on January 19 and has President-for-a-Day Mike Pence pardon him on the morning of January 20? (I bet no; although that course would eliminate some of the Constitutional objections to self-pardon, Trump couldn’t bear the indignity of resigning, and Pence wouldn’t sacrifice his political future by agreeing to grant the pardon.)

Then comes the afternoon of January 20, and it’s a new day in Washington.

If, as I fervently hope, we don’t hear from President Joe Biden for weeks at a time during his presidency, we can all calm down. Thank God.

But what will we do for entertainment?

Will Trump announce his candidacy for 2024? Will we see campaigns for Don Junior and Ivanka for high office? Will Trump use his high profile to heckle the Republicans from within and the Democrats from without? Will Trump be tried in civil cases ranging from defamation to sexual assault? Will Trump be tried in criminal cases ranging from campaign finance violations to tax fraud to God knows what else? (If you thought the O.J. Simpson case was the trial of the century, you were wrong.  You ain’t seen nothin’ yet.)

Ah, silver linings.  I love ’em.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* Kanye West is facing a lawsuit for reportedly failing to pay individuals who worked on one of his performances. If true, “how could you be so heartless?” [OK Magazine]

* Lawyers representing Stephen Bannon in his criminal case moved to withdraw from the representations after Bannon seemed to suggest beheading Dr. Anthony Fauci and others. [Hill]

* A South Florida lawyer tragically died of a heart attack after collapsing during a court hearing held through Zoom. [Daily Business Review]

* President Trump is making little headway in his post-election lawsuits. [New York Times]

* A man who is accused of threatening the Attorney General of Israel claims that autocorrect is to blame. This is a creative defense. [Haaretz]

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

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

According to Vault’s 2021 practice area rankings, which Biglaw firm tops the Media, Entertainment, and Sports list?

Hint: This Biglaw firm, which opened in 1875, counts Major League Baseball, the National Football League, the National Hockey League, and the National Basketball Association among their clients.

See the answer on the next page.

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

Back in 2015, frustration at John Deere’s draconian tractor DRM culminated in a grassroots tech movement dubbed “right to repair.” The company’s crackdown on “unauthorized repairs” turned countless ordinary citizens into technology policy activists, after DRM (and the company’s EULA) prohibited the lion’s share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for “authorized” repair, or toying around with pirated firmware just to ensure the products they owned actually worked.

Of course the problem isn’t just restricted to John Deere. Apple, Microsoft, Sony, and countless other tech giants eager to monopolize repair have made a habit of suing and bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own. This, in turn, has resulted in a growing push for right to repair legislation in countless states.

The movement scored another big win this week on the news that 74.8% of Massachusetts voters (so far) just approved an expansion to an existing Massachusetts law, resulting in one of the most comprehensive right to repair laws in the nation. The original law was the first in the nation to be passed in 2013. The update dramatically improves the law, requiring that as of 2022, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device.

More simply, that means users can take their vehicle to any repair shop and have easy, transparent access to vehicle data, without running into obnoxious restrictions or having to visit a more expensive dealership mechanic using proprietary tools. The auto industry, as you might expect, tried really hard to scuttle the law, at one point falsely arguing it would “aid sexual predators” (seriously). Apple, Microsoft and others eager to boost revenues via repair monopolies have also, routinely, tried to falsely portray basic repair rights as somehow nefarious and dangerous.

Needless to say, right to repair advocates like iFixit CEO Kyle Wiens were very happy with the law’s passage:

“Kyle Wiens, iFixit CEO, is thrilled. “Modern cars can send maintenance information directly to the manufacturers, cutting out local mechanics. Question 1 makes sure that consumers can continue to fix their own vehicles, or get them fixed at the shop of their choice.”

That means that independent repair shops will have a level playing field with car makers and dealerships, which have turned increasingly to locked-down wirelessly collected repair data, or telematics. Car owners, too, will be able to see their cars’ maintenance information through a smartphone app. And it opens the door for innovations, like wireless diagnostic apps for iOS and Android.

The more companies attempt to lock down their systems, bully independent repair shops, and otherwise erode consumer choice (all to detrimental environmental impact) the greater this movement grows. And companies and industries out there trying to frame basic consumer tech rights as somehow dangerous and nefarious clearly haven’t quite gotten the message yet.

Massachusetts Voters Overwhelmingly Support Expanded ‘Right To Repair’ Law

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First, the good news: The firm is no longer run by an accused sexual assaulter and admitted racist.

Crispin Odey, founding partner of hedge fund firm Odey Asset Management, will take the helm of a newly-launched fund aiming to protect against inflation as he steps down from running the business after three decades.

And now, the bad news, which you could probably intuit from the above:

The manager, who heads up a further six funds including LF Odey Opus, Odey European Inc and Odey Swan, said he wants to “focus entirely on running his funds” rather than managing the wider business.

Despite their abject failure so far getting courts to intercede to STOP THE COUNT!, the Trump campaign has vowed to fight on in the courts. Whom they plan to fight and where is not entirely clear — what venue is appropriate when you’re suing MATH? But the war continues, with Republican National Committee Chair Ronna Romney McDaniels promising a battle to overturn Biden’s margin in Michigan, which currently stands at 143,000 votes.

With Nevada and Arizona on the brink of being called (as of this writing) Biden will have 270 electoral votes without Pennsylvania or Georgia. Nevertheless, the Trump campaign is aiming most of its firepower at Philadelphia, as the city’s electoral officials tabulate a massive haul of mail-in ballots transforming the “red mirage” into a “blue wave.”

Errr, make that “firepower.”

Cain, a current member of the Texas House of Representatives and former member of his high school’s varsity cheerleading squad, announced his plans from an account which was restored from a 141-day suspension in January after he tweeted “My AR is ready for you Robert Francis” at then presidential candidate Beto O’Rourke. We look forward to reading about what happened when he hopped off the plane and started sh*t-talking the Eagles to his Uber driver. Probably.

And Cain isn’t the only member of Trumpland pinning his hopes on vague threats to sue over uhh, something. Here’s Lou Dobbs demanding that the Justice Department send in goons to stop the counting.

“Where isn’t the Republican party en masse demanding the Department of Justice move in here? It’s been absent for the entire process. Can you give us an answer to that?” the Fox Business host demanded of former Director of National Intelligence/current Team Trump apparel model Ric Grenell.

“Look, I …,” stammered Grenell, “What I can say is that some of those individuals you mentioned have absolutely reached out and said what can we do and are fully involved.”

“I’m not asking for a little sweetheart letter,” thundered Dobbs, “I’m asking why aren’t they demanding the Department of Justice a political crime as it occurs.” He then cut short the interview, apologizing for “delaying your legal action.”

Later Dobbs interviewed Harmeet Dhillon, co-chair of Women for Trump and former clerk for Judge Paul Victor Niemeyer on the Fourth Circuit.

First Dhillon grossly mischaracterized the status of poll watchers in Philadelphia, accusing canvassers of counting votes “without Republican election monitors there to witness it,” a fact contradicted by the Trump campaign’s own counsel that very day in federal court.

“It is an outrage that those people are in contempt of court,” Dhillon continued, despite no finding of contempt by any federal or state judge.

“Meanwhile we’re waiting for the United States Supreme Court, which the president has nominated three justices, to step in and do something. And hopefully Amy Coney Barrett will come through and pick it up,” she continued.

Here on Planet Earth, the only case the campaign has pending before the Supreme Court pertains to late-arriving mail-in ballots, which aren’t likely to wipe out Biden’s margin of victory in Pennsylvania even if the campaign manages to convince SCOTUS to toss them.

Last night the Republicans in Nevada filed yet another lawsuit challenging the use of machines to verify signatures in Clark County, alleging without evidence “over 3,000 instances of ineligible individuals casting ballots.” And the Trump campaign has filed yet another suit in federal court alleging that the Silver State allowed over “10,000” ineligible voters to cast ballots.

Their main witness is an elderly woman who appeared with Grenell at a press conference yesterday claiming her ballot was stolen, only to have the story be immediately debunked.

Time for a Hail Mary pass.

Well, it can’t hurt. And it’s probably no less effective than this raft of garbage lawsuits. AMEN.

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