Category: News Feeds

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

How much money has Perkins Coie, the go-to election litigation firm for Democrats, reportedly made from various Democratic organizations since 2019?

Hint: Led by election law expert Marc Elias, who has been very busy the last few weeks, the firm’s prominence in this practice area has been very profitable.

See the answer on the next page.

The current record-holder for world’s largest IPO had a pretty bad day. The company aiming for its crown had a worse one. Much, much worse.

The Shanghai Stock Exchange suspended the initial public offering of Ant Group, the internet finance spinoff of the Chinese e-commerce giant Alibaba, an extraordinary turn of events for what had been set to be the largest share sale in history.

A meeting called by four financial regulators on Monday changed all that. The People’s Bank of China, the China Banking and Insurance Regulatory Commission, the China Securities Regulatory Commission and the State Administration of Foreign Exchange said late in the day that they had summoned Mr. Ma, Ant’s executive chairman, Eric Jing, and its Chief Executive Simon Hu to a meeting, without providing details.

Ant said Monday that “views regarding the health and stability of the financial sector were exchanged” at the meeting, and that it would embrace regulation and service China’s economy and its citizens.

Professional Development teams play an essential role across all types of firms in keeping lawyers informed both professionally and personally. This month, PLI is recognizing its inaugural PD Appreciation Month, and for this year’s theme, it’s putting the focus on wellness.

“Wellness” is everywhere in the legal community these days — and with good reason. With the uncertainties of the job market, remote work, and schooling, and everyday worry over the pandemic, lawyers and legal professionals may be more stressed than ever. During November, PLI is debuting its Empowering Professional Development 2020: Well-Being in the Legal Industry series. For the first three Thursdays of November, esteemed leaders in professional development and well-being will address these important topics for law school students, attorneys, and professional staff. 

Kirsten Talmage, PLI’s Senior Director for Product Strategy & Development, discussed the program and importance of the PD community. 

Why have a PD Appreciation Month?

PLI has always valued the professional development community; we enjoy a close working relationship with the individuals involved and their consistent feedback has led to the development of new programs, products and other offerings. Over the last three years, we’ve launched the PD Center, which houses content created exclusively for the community, including our PD Insider interview series and PD Interactive webinars, as well as resources on creating effective training and instructional design. We thought it was important to continue to build on the PD Center by offering a dedicated, yearly program to this community and to recognize their tremendous efforts in directing attorney training. 

How did PLI select well-being as the focus of the inaugural program?

We have increased our resources and programs about attorney wellness over the last five years. We’ve also noted and want to be responsive to the increase in instances of attorney depression, addiction and suicide, and feel that we, as an organization, can provide proactive resources to the legal community that promote wellness and provide effective methods for living a healthier lifestyle and understanding and coping with stress and depression. 

The PD community is uniquely situated to promote and advocate wellness at all levels within a firm and to provide training and support to their peers. Many firms now have committees and even departments dedicated to well-being for attorneys and professional staff. So, really, it was an easy decision to focus on well-being.

What will the program cover?

We purposefully split the program into separate panels to focus on three different demographics within the community: law students, attorneys, and professional staff within firms. We thought it was critical to address all three areas, as wellness and the impact of wellness within a firm begins in law school, continues through practice, and implicates everyone within the firm. 

The panel on law schools will address well-being challenges faced by both students and schools and the role that the profession can play in supporting law students’ well-being efforts. The panel on attorney well-being focuses on best practices to incentivize attorneys and staff to attend well-being programs as well as the most (and least) effective live programs, coaching, apps, and online programs. Finally, the panel on well-being for professional staff will help them to find value and fulfillment in the face of declining attorney well-being, and provides tools to manage increased stress caused by always-available technology, attorney mental health or substance abuse challenges, and unrealistic attorney expectations. 

Who is the intended audience? 

The program is intended for anyone in the PD community regardless of experience or title. While we planned the program around the PD audience, all attorneys will certainly benefit from the three panels, and take away a better understanding of why wellness should matter to them, the importance of well-being practices beginning in law school, and the value in having the professional staff also supported in their own wellness journey. We purposefully made the program complimentary for all attendees because we feel that well-being is such a critical topic. 

What other resources does PLI provide that focus on wellness training? 

PLI has a variety of programs that address the area of well-being and attorney mental health, available under “Attorney wellness and stress reduction” on our website. Notably, our December 10 program, Taking Control of Your Well-Being: Mental Health and Wellness for Attorneys, tackles the very important topics of overcoming the stigma of mental health and substance use challenges in the legal profession, and shows how to leverage your legal organization’s wellness program and steps to take if your firm doesn’t have one. 

Note: The American Bar Association has a list of assistance programs by state that provide confidential services and support to individuals facing substance use disorders or mental health issues. If you or someone you know are struggling, reach out to an assistance program or call 1-800-273-TALK (8255) for immediate support. 

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here. 

It is well known by now that hemp-derived cannabidiol (Hemp CBD) cosmetics represent the lowest level of risk for businesses. Indeed, CVS, Walgreens and Sephora are only a few of the major national retailers that now offer these products for sale.

The growing popularity of Hemp CBD cosmetics is due to several reasons. First, the FDA has not expressly prohibited the use of CBD in cosmetics like it has with conventional foods and dietary supplements and has limited its enforcement actions against companies that make egregious medical claims about their CBD products. Second, many state regulators do not seem to take issue with the sale and marketing of these products. Lastly, and maybe most importantly, the cosmetic industry has been poorly regulated for nearly a century. Unlike foods, dietary supplements, and drugs, cosmetics are not subject to premarket approval. Instead, the FDA relies on consumer complaints to monitor this self-policed industry. For example, recalls of cosmetics are voluntary actions taken by manufacturers or distributors.

Nevertheless, some federal laws and regulations apply to cosmetics marketed in interstate commerce. Both the Federal Food, Drug and Cosmetic Act (FDCA) and the Fair Packaging and Labeling Act (FPLA) mandate that cosmetics be safe and properly labeled. Note that most states have adopted and are implementing these very same laws and regulations.

Generally, the FDA will deem a cosmetic is unsafe or “adulterated” if it contains a harmful ingredient. Through its rulemaking process, the FDA has banned a small list of ingredients or substances from cosmetics. However, even ingredients or substances that are not expressly listed in the FDA regulations may be prohibited if proven to be unsafe for their intended use.

In its cannabis FAQs, specifically in answering the question, What is FDA’s position on cannabis and cannabis-derived ingredients in cosmetics?, the agency stated that:

“Certain cosmetic ingredients are prohibited or restricted by regulation, but currently that is not the case for any cannabis or cannabis-derived ingredients.”

Nevertheless, the agency went on to explain that:

“Ingredients not specifically addressed by regulation must nonetheless comply with all applicable requirements, and no ingredient — including a cannabis or cannabis-derived ingredient — can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way.” (Emphasis added).

As such, manufacturers and distributors of Hemp CBD cosmetics should, at a minimum, ensure that their products are free of all substances found in the FDA regulations but also that their products are safe for human consumption before they are placed in commerce. Adopting these good business practices will not only help shield the CBD companies from falling under the scrutiny of the FDA (and that of state regulators), it will also help protect them from strict liability and other types of consumer lawsuits.

Moreover, growing concerns regarding the safety of cosmetics and demands for safer, clean labeled products, have led to the explosion of the global natural and organic beauty market, which includes Hemp CBD cosmetics. Thus, ensuring the safety and quality of Hemp CBD cosmetics does more than mitigate the risk of enforcement actions; it also provides Hemp CBD manufacturers and distributors with an opportunity to increase their revenues by giving consumers what they want and deserve.

In addition to ensuring the safety of their cosmetic products, Hemp CBD manufacturers and distributors must also check that their products are properly labeled or not “misbranded.” A cosmetic is misbranded if it is labeled in a false or misleading way, if it fails to include mandated labeling information, or if it is deceptive in any way.

According to several studies conducted in the past two years, including one recent study led by the FDA, many CBD cosmetics found on the market are mislabeled because they contain false potency claims, specifically lower concentrations of CBD than those listed on their labels. This issue is so prevalent in the industry that several companies, including Charlotte’s Web, have been hit with consumer class action lawsuits.

Another way a cosmetic may be deemed misbranded or mislabeled is if the product label explicitly or implicitly suggests that the product is intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat, or prevent disease, and thus, is a “drug” and not a cosmetic, as might be stated in the statement of identity or in the directions for use. Consequently, CBD manufacturers and distributors of Hemp CBD cosmetics should refrain from making any medical claims regarding the therapeutic value of their products. This, of course, would not render Hemp CBD cosmetics “lawful” under federal law — this won’t be possible until the FDA regulates these products; instead, such practice would further mitigate the risk of enforcement actions.

Therefore, even if Hemp CBD cosmetics represent the lowest level of risk for companies, and even if the FDA has yet to forge a legal path for the sale and marketing of these products, manufacturers and distributors should comply with all applicable safety and labeling requirements to reduce the risk of enforcement actions and to ensure the success and longevity of their business.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

It is a distressing moment for me as a longtime Republican to see a call to disenfranchise so many people. … What the President said [last night] is not only unprecedented and it not only lacks any basis in the law, it really is a disservice to all the other men and women who are on the ballot as Republicans….

— Ben Ginsberg, a veteran Republican election lawyer, commenting on President Donald Trump’s declaration of victory before securing 270 electoral votes, his attacks on legitimate vote-counting efforts that are still ongoing in several battleground states, and his plan to take the election to the Supreme Court.

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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.

I don’t know about you, but I could sure use some good news. I don’t expect an election result, well, any time today, so how about some Biglaw news? Like maybe a Biglaw firm doing an about face on COVID austerity measures and throwing in some extra bonuses for good measure.

Thanks for the election news reprieve Baker Botts.

After previously announcing a plan of “collective sacrifice” to get through the global health crisis, Baker Botts changed course. In July, the salary cuts — 20 to 30 percent based on salary level for counsel, 20 percent for associates, and 0 to 20 percent based on salary level for staff — were reduced by 50 percent (at the associate level, that made it just 10 percent). And now the firm has announced, that effective November 1st, the entirely of the COVID salary cuts will be reversed.

What’s more, when announcing the July rollbacks, they also did a round of interim bonuses for the May 1 – July 31 period. In announcing this rollback, there is another round of bonuses in the offing:

As mentioned in prior announcements, we will also be awarding interim bonuses to non-partner timekeepers who have made exceptional contributions over the past months. Bonus eligibility will be determined based on a number of factors, including utilization and exemplary client service, for the August 1 – October 31 period, as recorded in adherence with the Firm’s time entry policy and deadlines.  To be eligible for this interim bonus, which will be paid before year-end, timekeepers must be in good standing and actively employed at the Firm on the date of payment.

Read the full email on the next page.

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm announces any type of bonus payment for associates, please text us (646-820-8477) or email us (subject line: “[Firm Name] Bonuses”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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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).

Judge Emmet Sullivan ordered the Post Office to deliver ballots yesterday.

The Post Office said that they “declined” to follow this order.

Didn’t… know that was an option.

As it turns out, Judge Emmet Sullivan also hasn’t heard of this bullshit. At today’s hearing:

SULLIVAN: “At some point, I agree the postmaster will have to be deposed or appear before me.”

Someone’s about to have a criminal contempt hearing.

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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.

There’s no question that law and technology are inextricably intertwined. As new demands and unexpected uncertainties continue to arise, the industry’s need for advanced technology continues to grow. 

LexisNexis, a pioneer in the legal tech space, is meeting that need with the introduction of its comprehensive new solution, Lexis+. We recently sat down with Jeff Pfeifer, Chief Product Officer of LexisNexis, to discuss how Lexis+ is leading the industry into the future of legal technology.

Can you give us some background on why you created Lexis+?

We began engaging with clients on the concept of Lexis+ about a year and a half ago, speaking with over 2,000 of our clients about some broad ideas we had. Ultimately, those conversations led us to identify three key themes that became the reason for building Lexis+. 

First, our clients wanted a better user experience in legal products. We regularly heard comments like, “I understand that we’re working in a professional product, but do legal products have to be so dull and boring?” Second, our clients wanted to see tighter integrations and connections between the products we previously offered on a stand-alone basis. The third really big idea that actually predated all of this work by five to seven years was the notion that law was, relative to some other industries, less positioned to leverage data in driving decisions. 

So, as we began to iterate our product concept for Lexis+, we really sought to address each one of those major themes. We wanted to build a modern user experience that compares with any product experience in a consumer environment, while providing better integrations and data-driven insights.

Are there any specific pain points Lexis+ was designed to address?

The themes I just mentioned intersect with a longer-term trend and bigger-picture problem that all major technology suppliers are seeing – namely that the proliferation of information and data from numerous sources is at the largest point it’s ever been, and it’s growing at an increasing rate. 

Traditional functions like search, which have really been at the center of how our customers have interacted with our products for a long time, increasingly have limitations. So we’re also thinking about how a user five years from now will interact with data in very different ways than they do today. Many of those ideas are in this first iteration of  Lexis+. 

How does Lexis+ fit into the existing Lexis universe of products? 

It’s designed to be part of that universe and also introduce new benefits to the user. As an example, a user in Lexis+ might start an activity in the research section of the product and then be guided to additional insights or information in our Practical Guidance collection. Our goal for Lexis+ is for the user to think less about the individual products we offer and more about the questions they’re trying to answer or the tasks they’re trying to accomplish. Lexis+ is designed to help guide them to the best possible insights wherever they exist in the product experience. 

While you might enter fairly straightforward search terms, we’ll increasingly introduce you to other content sets and even things like analytics. The underlying idea is that data-driven insights help you understand not only that you have to do something like draft a motion, but that you also have to think about whether your motion strategy is appropriate for the business situation you’re addressing. 

Are there any particular features of Lexis+ you’d like to highlight?

In total, there are 12 new feature capabilities that are exclusive to the Lexis+ experience and brand new in the legal market. I’ll highlight a couple.

First, in the area of data-driven insights, there’s a feature called Brief Analysis, which allows you to upload a document and get guided recommendations of additional documents that would add valuable research and strengthen your legal arguments. What’s unique about the application in Lexis+ is the custom machine learning models we built to power the recommendation capability. It really helps users feel more confident that they have, in fact, exhausted their research – that they’ve avoided missing that proverbial needle in the  haystack.

In Lexis+, we’ve also really emphasized the use of data visualization as an alternative to help users understand relationships between or among documents that they might not notice in a standard text result view. We’ve introduced data visualization capabilities throughout the product experience. We’ve enhanced Revel View, which is a data visualization that shows citing connections between documents. We’ve found that, in a standard search interaction in Lexis, users typically don’t engage past the 12th document, even though relevant results don’t stop there. But with data visualization capabilities, we regularly see users interacting with the 50th or the 60th document in the result list, and that’s driven by the visual presentation of the connections between those documents. 

Another extensive use of data visualization is in a feature called Code Compare, which allows you to see how a statute or administrative code has changed over time. We illustrate visually through addition and deletion markups what’s happened as a statute has been amended over time. 

Our Lexis+ Answers product is designed to allow the user to enter a fully-formed question into the search box and get a direct answer. This is an early version of what’s likely to happen with search over time – users will begin to engage with a service like Lexis+ in a more human-like way, with it eventually becoming a dialogue.

In parallel within our Practical Guidance collection, we’ve deployed a number of machine  learning capabilities that allow users to mine very large data sets of contracts, find the market standards for a transaction, and review that information in a visual and summary-based way. Collectively, all these technologies help users get insights out of data in ways they never could before with traditional text-based search results.

Finally, we wanted to address the “fear of a black box” – with machine learning, users typically don’t understand what’s happening in the background. We’ve worked hard in Lexis+ to introduce some features that allow users to maintain control of the search experience. One is called Search Tree, which allows users to see visually how a search was interpreted and make modifications to that search to ensure they’re getting the results they’re looking for. The other is called Missing and Must Include. It allows users to force specific terms or ideas to be included in their results. 

What can we expect to see from Lexis+ in the future?

In November, we’re releasing a companion product to Lexis+ called CaseMap Cloud, which takes one of our most popular software tools and reimagines it completely for a cloud environment, so teams can work collaboratively and add data on litigation matters. We’ve accelerated our development on that product with feedback from customers. These are ideas we’ve had for some time, but the pandemic has really emphasized the need to build tools and capabilities that allow for easier data sharing and collaborative document creation. 

Why do lawyers need Lexis+?

Legal users are clamoring for experiences like those they use in their consumer life, and they’ll have that in Lexis+. Also, tools that were previously separated are now tightly integrated in a way that gives users much better guidance and recommendations about how to answer key legal questions. Finally, the world of data-driven insights is really exciting, and Lexis+ helps answer the important questions that need to be answered. 

It makes me indescribably angry that counting every legally cast ballot is considered partisan, instead of, you know, A CENTRAL TENET OF DEMOCRACY, but here we are. I know you know, but as of this writing there has been no declared winner of the 2020 presidential election — despite what the president might say.

Because there’s an unchecked pandemic raging, Democrats launched a PR campaign to get voters to cast early and mail-in ballots. And voters obliged, but that’s left us in a dilly of a pickle with Election Day having come and gone and no winner declared. Of course, declaring a winner is only a modern convention but the president has the attention span of a gnat, so.

Anyway, we’re now advancing to the litigation phase of the election, which, again, is a disgrace. Pennsylvania looks to be a key swing state, and the effort to get ballots tossed out is already underway there. Then there’s the effort to get the Post Office to actually deliver the ballots that were cast, and, yeah that’s not going well. Actually, it’s been a banner year for election lawsuits, with a record breaking 230 filed between January 1 to October 23.

We already have some intel on the Biglaw firms that are working on the Republican election cases, ahem, Jones Day and King & Spalding. While Dems have looked to Greenberg Traurig, Dentons, and of course their go-to election lawyer Marc Elias at Perkins Coie.

And it’s true, as I’ve had to repeat to myself multiple times over the morning, that Joe Biden’s most likely path to victory (some combination of the upper Midwest “Blue Wall” — Michigan, Wisconsin, and Pennsylvania — and Arizona) is still very much viable. But Dems had hoped for a larger margin of victory that would stop Trump from trying to (further) undermine democracy. Because that’s where we are as a nation, we have de jure universal suffrage but the de facto voter disenfranchisement will start to happen in courtrooms.

While I — probably naively — still have faith that the legal challenges will be fruitless and Joe Biden will ultimately be sworn in as our 46th president, it FUCKING SUCKS. Counting ballots isn’t a difficult concept. It shouldn’t mean you’re in the bag for Dems because you want the damn votes cast to be counted. But, again, this is where we are.

Is all this a sign that we’ve entered late-stage democracy? Almost certainly yes. But should you freak out that Biden will lose this particular election? No, at least, not yet.

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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).