Category: News Feeds

When the SEC last week abandoned its plan to sharply reduce the number of six-week-old hedge fund portfolio reports available to the investing public, it seemed a victim of overwhelming opposition: Not only did negative comment letters outnumber the two dozen positive ones by 100-to-one, but the very people Jay Clayton thought he was helping by increasing the 13F threshold to $3.5 billion in assets under management—the very people he’s hoping will be clients when his miserable four years by the Potomac at last come to an end—the hedge funds themselves weren’t especially keen, either.

* The Supreme Court is allowing an antitrust case against the NFL to move forward. The XFL is still around to compete with the NFL…right? [Chicago Sun Tribune]

* A Texas lawyer has been disciplined for stealing LegalZoom referrals from the firm that employed her. [Texas Lawyer]

* The Attorney General of South Dakota was reportedly distracted before allegedly striking a pedestrian earlier this year. [Hill]

* The Surgeon General of the United States has pleaded not guilty to allegedly being in a park that was closed to slow the spread of COVID-19. [AP]

* A lawsuit alleging that Amazon did not do enough to protect its workers from COVID-19 has been dismissed. [CNN]

* A lot of billable hours may be recorded in the legal battles that may arise after the presidential election. [Fox News]

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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 antitrust list?

Hint: This Biglaw firm, which opened in 1946, has only two domestic offices in D.C. and NYC — perfect for their antitrust practice.

See the answer on the next page.

Unless you have been hiding under a rock lately, you are aware that the CEOs of Twitter, Facebook, and Google were grilled on Capitol Hill last week about their “fact checking” of content and ostensible fight against disinformation on their platforms. At best, it was an opportunity for the American public to hear about these actions taken by these platforms straight from the horse’s mouth, so to speak. At worst, it was a tone-deaf display of arrogance of the highest order, demonstrating an astonishing ambivalence to the inconsistency in application of their own policies and terms of use. In any event, their testimony did not assuage any concerns over Big Tech’s actions. The question is no longer whether Section 230 should be revised, but how it should be addressed and by how much. Unfortunately, the answer is not clear-cut, but the approach to the answer may be simpler than your think.

I first addressed why social media platforms needed to respect Section 230 here, reasons why we need to rethink and re-evaluate the protections here, followed by arguments for repairing Section 230 for the 21st century here. Unfortunately, the testimony presented this past week in the Senate demonstrated that Twitter, Facebook, and Google either do not understand the depth of concern over their actions or they do and do not care. As a result, it seemed appropriate to address some closing thoughts on Section 230 from a different angle — that of its good points, its bad points, and the absolutely ugly points stemming from the law’s failing to keep pace with the platforms.

The Good. No matter the criticisms, there is true value in Section 230. Although the largest social media platforms can easily handle a loss of immunity for content moderation, there are a multitude of other platforms that are fighting for market share in the marketplace (like Parler and Rumble) that absolutely benefit from (and need) such immunity. Section 230 protects online service providers from civil liability for defamatory, tortious, and even illegal content that its users post onto the platform (i.e., comments to posts), but also provides immunity from civil liability resulting from the moderation or restriction of content posted on the platform (such as removing obscene content or content that threatens violence against a person or group). This is a commonsense approach to an ongoing problem. This is why calls for the complate repeal of Section 230 without a reasonable replacement are simply wrong — complete repeal will cause not only social media platforms but a vast number of websites to broadly remove information to avoid liability, resulting in even more censored content. Online service providers (including social media platforms) provide valuable conduits for information exchange and should enjoy a certain level of protection from liability so that the free exchange of ideas and speech are ensured.

The Bad. At least with regard to the largest social media platforms, they are not practicing what they preach. Notwithstanding claims that their “purpose is to serve the public conversation” (Twitter) or Community Standards that claim “to create a place for expression and give people a voice” (Facebook), these platforms have continued a march toward increasing the scope of content removal, reaching a fever pitch this election season, and culminating in actions being taken under the guise of “fact checking” to address “misinformation” (and that is putting it mildly). There are a number of reasons why this has occurred, but one of the biggest ones is due to catastrophically broad Section 230 jurisprudence. Ever since Zeran v. America Online, Incorporated in 1997 (where the Fourth Circuit Court of Appeals affirmed the trial court’s dismissal of the case based upon Section 230 immunity, holding distributors of content online to be a “subset” of publishers and deserving of very broad protection against liability). This interpretation made sense in 1997, but 23 years later the considerations are no longer the same. The internet has matured and its reach has dramatically increased due to the proliferation of mobile devices and the reach of cellular and wireless communications. This evolution helped give rise to social media platforms, whose reach has only grown exponentially, changing the way news and other information is disseminated online. The result, however, has been a slow and steady march away from their own stated policies in support of public discourse and a donning of the “information gatekeeper” mantle.

The Unapologetically Ugly.  In an already highly polarized political atmosphere this presidential election cycle, some of the largest social media platforms took it upon themselves to censor content without, it seems, thinking through the consequences to their actions. For example, Twitter suspended the New York Post’s account for tweets referencing the paper’s expose on questionable dealings by Hunter Biden (the son of presidential candidate Joe Biden) gleaned  from a laptop he abandoned at a computer repair shop. The reason for removal? Violations of Twitter’s hacking policy, even though other sources and the reporting itself demonstrated the information was not hacked. In fact, Twitter changed its policy within 24 hours of the removal claiming “feedback” uncovered concerns about “undue censorship of journalists and whistleblowers.” For similar reasons, Facebook limited the reach of the same NY Post article on its platform. These actions resulted in the CEOs of Facebook and Twitter (as well as of Google) being summoned to testify before the Senate to explain their actions which, on their face, appeared politically motivated. The CEO of Twitter, Jack Dorsey, attempted to justify his platform’s actions under questioning, even claiming that the content in question could now be shared even though that was not the case while Dorsey was testifying, and it remained that way for a period thereafter. Although measured, their testimony failed to address inconsistency in enforcement of their own policies, or otherwise diffuse concerns over perceived political bias as a result.  You can unpack it yourself here (on YouTube, despite the irony), but let’s just say that given then stakes the testimony of these CEOs did not exactly redound to their platforms’ benefit.

I want to make sure that this point is abundantly clear: Social media platforms, as private commercial endeavors, can determine what content they wish to permit on their platforms. That is their right. What they need to understand, however, is that Section 230 is a privilege that they must respect. Based upon their own inconsistent actions, they have abused their privilege due in part to overboard Section 230 jurisprudence that has not kept up with the times, the revisiting of which is long overdue. Further, my biggest concern over their actions is their deviation from their purported purpose and abject inconsistency in application of their own policies and procedures, which is a disservice to its users and the internet community at large. Being consistent in enforcement in good faith supports the intent of Section 230 while simultaneously eliminating perceived bias. They should also avoid the pitfalls of addressing “misinformation” by ceasing to act as gatekeepers and  return to acting like referees. Simply put, allow the conversation consistent with their stated policies and stop being a part of it. Unfortunately for them, their actions do have consequences — in this case, it will be the loss of Section 230 protections in one form or another, whether they like it or not.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Elliott Management founder and anti-snowbird Paul Singer must be a bit surprised to see short-form streaming video service Quibi collapse quite so quickly. He thought it had a pretty good idea, after all. Not the bit about five-minute-long videos, probably, or the actual videos themselves, since no one thought they were particularly good. But that Turnstyle technology that allowed the videos to work seamlessly well in either portrait or landscape, that was great. The only problem, as Singer sees it, is it already belonged to someone else, someone in which Elliott holds a stake and someone whose legal bills Elliott is paying.

You never have to ask anyone permission to lead. You know, I have in my career been told many times, ‘It’s not your time. It’s not your turn.’ And let me just tell you, I eat ‘no’ for breakfast, so I would recommend the same. It’s a hearty breakfast.

— Kamala Harris, Democratic nominee for vice president, in response to a question from a voter on her advice to women, both young and old. Harris is the first African American and South Asian American woman to be nominated for vice president by a major political party. She will again make history if the Biden-Harris ticket wins the election.

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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.

This morning the Supreme Court dodged another bullet in the case of DeRay McKesson, the civil rights activist being sued by an unnamed police officer who was injured during a protest in 2016. In a 7-1 per curiam decision, the court held that the Fifth Circuit should have deferred to the Louisiana Supreme Court to decide whether that state’s law imposes a duty of care on protestors to protect police.

Three guesses which Supreme Court Justice was totally onboard with a novel precedent to impose individual liability on protest organizers for harm caused by third party actors. Hint: It rhymes with Tarence Clomas.

On July 5, 2016, Alton Sterling, a 37-year-old Black man, was shot at point blank range by Baton Rouge police who were trying to arrest him for selling bootleg CDs. The killing was recorded by multiple bystanders, sparking several days of protest, some of which turned violent. On July 9, large crowds blocked Airline Highway, a major thoroughfare in Baton Rouge, and police arrested 120 people, including McKesson, one of the protest organizers. At some point during the evening, Officer Doe was injured by a chunk of concrete thrown by an unknown assailant.

There’s never been any suggestion that McKesson threw the concrete. There’s never been any suggestion that he instructed protestors to harm police. Which is why the trial court tossed Officer Doe’s suit to hold McKesson personally liable for the attack, consonant with the holding in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982) that non-violent protestors cannot be held liable for damages wrought by third parties during the exercise of their First Amendment rights.

But the Fifth Circuit disagreed, citing Louisiana’s tort law to find that McKesson owed Officer Doe a duty of care and that the activist negligently failed to fulfill that duty, since he should have known that the protest would likely turn violent.

It was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was likely to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration. This is not, as the dissenting opinion contends, a “duty to protect others from the criminal activities of third persons.” See Posecai , 752 So. 2d at 766. Louisiana does not recognize such a duty. It does, however, recognize a duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence.

This would allow any state to curtail First Amendment protected speech by statutorily imposing a duty of care on protest organizers, saddling them with crippling personal liability if things got out of hand. And perhaps it still will if the Louisiana Supreme Court agrees with the Fifth Circuit’s interpretation of its law.

But not today. For now, the Supreme Court didn’t reach the First Amendment issues of right to speech and assembly, because it was too busy dropkicking this dumpster fire into the state judges’ laps.

We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place. The dispute thus could be “greatly simplifie[d]” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law.

Translation: Please tell us this cockeyed interpretation of state law is as dumb as it looks so we don’t have to wade into this hot mess of a First Amendment issue.

So get out there and exercise your First Amendment right to assemble in protest. Because you might not get another chance.

DERAY MCKESSON v. JOHN DOE [No.19–1108, November 2, 2020]

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

Just four days before the presidential election, the Trump Administration finalized its long-promised rule requiring insurers to share prices for healthcare services and patient cost-sharing with the public upfront. But payers say the rule will not achieve its aim of lowering prices.

The final rule, released yesterday by CMS, orders healthcare payers and self-insured plans to provide easy-to-understand and personalized information on cost-sharing and to publicly disclose the rates they pay to providers through online tools. Insurers and plans must also make this information available in paper form, if requested.

“Price transparency puts patients in control and forces competition on the basis of cost and quality which can rein in the high cost of care,” said Centers for Medicare & Medicaid Services Administrator Seema Verma in a statement. “CMS’ action represents perhaps the most consequential healthcare reform in the last several decades.”

The rule will provide about 200 million Americans with access to real-time price information, a CMS press release said. The regulation concerning health insurers comes about a year after CMS issued a similar rule requiring hospitals to publicize negotiated rates with insurers beginning in 2021.

But it will be about four years before healthcare consumers in the U.S. gain a full picture of prices from payers. Insurers must disclose negotiated rates and provide personalized estimates of patient out-of-pocket costs for 500 services and items, including drugs and medical equipment, beginning Jan. 1, 2023. Insurers must make that information publicly available for all items and services starting Jan. 1, 2024.

Further, the rule asks insurers to make their data files on healthcare costs available for research purposes. Researchers and technology developers can use the data to create solutions that will help people make healthcare decisions, including tools to compare prices between health plans. Insurers must make these data files public starting Jan. 1, 2022.

America’s Health Insurance Plans, a national payer association, released a statement noting its “disappointment” in the final rule.

The rule “will work to reduce competition and push healthcare prices higher — not lower — for American families, patients, and taxpayers,” the association said. “Competition experts, including the bipartisan Federal Trade Commission, agree that disclosing privately negotiated rates will reduce incentives to offer lower rates, creating a floor — not a ceiling — for the prices that drug makers, providers, and device makers would be willing to accept.”

In addition, the association said that three-quarters of commercial health insurance providers already offer price transparency tools.

Health Care Service Corp. is one of those insurers. The payer, one of the largest in the country, said in an emailed statement that their online tool “allows members to compare costs for over 1,600 healthcare services and understand their potential out-of-pocket expenses and cost-sharing obligations.”

The company is currently reviewing the final rule to determine next steps, including whether any modifications need to be made to the information and tools it currently offers members.

Photo: utah778, Getty images

One thing I won’t miss about the presidential campaign season is listening to long, rambling speeches. I know that some candidates prefer to go … off-script, I can’t help but wish that someone had turned to an editor for help.

I like to imagine all of the different iterations that those scripts would go through — all of the different cross-outs, underlines, and comments in the margins. All of the different versions with different dates, with different authors cautioning against using certain phrases.

It almost feels quaint to imagine a thoroughly political stump speech these days, or even the relevance of having a “speechwriter” at all. But today I want to talk to you about what they would do, and what those stump speeches would look like if a decent speechwriter got their hands on one.

Today, I want to talk about: rrredline.

Sorry, blllackline.

No no, wait, cooommparison.

I should really start changing the way that I say that. But anyway, we’re getting off-tracks, I mean, track. Well both really.

So, what are tracks?

Well, DeltaView gives complex document users an easy way to compare two documents and … hang on, my PR just commented on my script. Well, thank goodness for co-authoring. She says I need to stop confusing people and just focus on one thing at a time. I don’t think she realizes that in the contract world, those are virtually synonyms. People use redline, blackline, comparison, tracks, and DeltaView interchangeably. Furthermore, diff, compare, and ChangePro are used as well.

Confused yet?

But before we get into that, the gist is that, whatever you call them, they simply show the changes between one document and another version of that document. They are what happens when multiple people give input into one or more documents. They’re especially common in contracts.

They make it easier to edit for purposes of grammar, spelling, accuracy, input, and optimization. They can be used within a party to send out a “perfect document” or in conjunction with other parties as part of the negotiation process.

But let us get to the purpose of this post. In fact, in the electoral spirit of the season, let’s take a vote on which name is the one name that will rule them all. What is the official title for this little editorial marking?

Now, you may not see a need to have one predominant name for something like this. You might be thinking this is all just semantics … and you would be exactly right! But the law is simply semantics in a suit — semantics are the building blocks of contracts, the atoms of a world of exchange. To dismiss something because it is “merely semantics” is to throw out jurisdiction as a whole — it would be prejudice against a lesser-known group of language. Anti-semantics!

So, let’s narrow down our options. I got the suggestions of numerous colleagues and competitors, and these are the conclusions I managed to come to in a relatively short space of time.

I think the two most obvious ones to eliminate from the outset would be DeltaViewer and ChangePro. These two are the first to stand out because they are the names of a business-specific system. The process extends beyond any one company name, so we can scratch these names off.

Next is diff — no offense to the guy who came up with this one, but you must either be really bored or really boring. I imagine diff refers to differ but who knows. It could refer to difficult, diffident, diffusivity — even a diff lock. Besides, if we were to campaign for diff’s victory the best slogan, we could come up with would be “diff is kiff” — which is outdated. … Oh wait, my PR is  commenting on my script again. Apparently “diff” is a formally accepted term regarding computing that means, “to compare files in order to determine how or whether they differ.” Which keeps diff in the running for now.

Comparison and her campaign manager, Compare, won’t take us too long. Comparison is not only the thief of joy but also the root of all inferiority; and while some people think a thief would be perfectly appropriate for the industry, no one, particularly lawyers, would allow inferiority within 50 feet of them. Looks like these two are out of the race.

At first glance, Tracks seems like a worthy candidate — succinct, sensible, and simple. But just like when you name a child, you must consider the jokes and nicknames that can be made with it. Opposites a tracks, a tracks athlete, a tracks suit, a-tracks-ia — for the level-headed. There are just way too many potential bad puns to even consider this unlucky contender. And besides, it already has seven different extant definitions.

Finally, we’re down to two: redline and blackline. I don’t want to politicize documentation any more than it already isn’t.

And redline? Well, while diff seems to be the most appropriate, redline is still the most popular, so we can’t just throw her out. After all her slogan is, “the bottom line is redline.”

Which I guess leaves us with a tie.

I guess we’ll have to wait for the Supreme Court to weigh in.

P.S. Remember to vote tomorrow. Every vote counts!

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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.