Category: News Feeds

The most practical and realistic federal legislation focused on providing college athletes the right to exploit their names, images, and likenesses (NIL) for commercial gain was just recently co-authored by a Democrat and a Republican. The bipartisan bill, written by Representative Anthony Gonzalez (R-Ohio) and Representative Emanuel Cleaver (D-Mo.) may be cited as the “Student Athlete Level Playing Field Act” and its main purpose is to prohibit the NCAA and universities from preventing college athletes from participating in athletics because they enter into endorsement contracts or agency contracts.

The concept is not new. New Jersey recently became the fifth state to promise NIL rights to college athletes, and Florida is currently situated to be the first to actually afford college athletes such rights as of July 1, 2020. If passed and signed into law, the federal Student Athlete Level Playing Field Act would preempt states like New Jersey and Florida from enforcing their respective laws and regulations that seek to provide their own set of rights to college athletes.

The law proposed by Gonzalez and Cleaver seeks to provide widespread rights to college athletes, with a few restrictions. Tobacco brands (including vaping products), alcohol companies, sellers and distributors of controlled substances (including marijuana), adult entertainment businesses, and casinos or entities that sponsor or promote gambling activities would be completely off-limits. It is not yet clear whether that would include season-long and daily fantasy sports operations. Additional restricted categories are likely to be suggested by a new 13-member commission that is proposed to be established by the law and then be terminated roughly three years after its creation. Twelve members of the commission are to be appointed by various high-ranking members of Congress and then those members are to select a 13th member who will serve as the chair of the commission.

College athletes, under the suggested law, will not be able to wear any third-party-provided items of clothing or gear during athletic competitions or university-sponsored events. However, they shall not be barred from entering into contracts with companies that may be deemed competitors of brands that have business relationships with the universities. For instance, the Florida Gators football program has a deal in place with Jordan Brand. Under the bill sponsored by Gonzalez and Cleaver, a football player at the University of Florida would not be able to wear Adidas accessories on the field, but he could wear Adidas-branded shoes at his apartment and post about Adidas on Instagram in exchange for compensation.

What is deemed to be permissible compensation in those categories that are not off-limits remains the tricky part in providing these rights to college athletes. Perhaps the standard of “I know it when I see it,” uttered by Justice Potter Stewart in 1964 to explain what constitutes obscenity in the realm of hard-core pornography prevails. It is not at all clear at this point. What is clear is the intention of the federal government to prohibit improper payments by boosters (commonly sponsors of an athletic program) to college athletes to cause the athletes to enroll or remain at a specific university. While that may be justified in theory, it could be hard to implement in practice.

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

(Bryant Johnson, Justice Ruth Bader Ginsburg’s personal trainer of more than 20 years, did three push-ups in her honor this morning while the late justice lied in state at the U.S. Capitol. In 2017, Johnson published The RBG Workout: How She Stays Strong … and You Can Too! (affiliate link). Ginsburg is the first woman and first Jewish person in U.S. history to lie in state at the Capitol.)

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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.

Spoofing, as we have established, is awfully hard to prove in a court of law. Far, far better to come to a more or less amicable arrangement that makes clear that spoofing is very much not OK, but without the hassle of building a case or making an argument or potentially losing and having spoofing become de facto, if not de jure, OK, while also setting a very expensive precedent for those whose spoofing efforts far exceed those of Jamie Dimon’s people, however creative they’ve been.

JPMorgan Chase & Co. is poised to pay close to $1 billion to resolve market manipulation investigations by U.S. authorities into its trading of metals futures and Treasury securities…. A penalty approaching $1 billion would far exceed previous spoofing-related fines. It would also be on par with sanctions in many prior manipulation cases, including some brought several years ago against banks for allegedly rigging benchmark interest rates and foreign exchange markets.

Staring down a potential nightmare of an online bar exam, the California Supreme Court rejected the idea of emergency diploma privilege for law school graduates in the state that took “having the most COVID cases in the country” and add being on goddamned fire to the mix. As far as the court’s concerned applicants are encouraged to rub some dirt on it and get back out there.

But not all is lost! Applicants were thrown a bone when the California State Bar’s Board of Trustees approved a provisional licensing plan.

Wow! That’s…

OK, it’s not totally worthless, but let’s consider the requirements for this new program.

Applicants for California’s provisional license program must be 2020 graduates of California law schools or of schools outside the state, if such graduates are permitted to sit for the bar exam under California law. There are no limits on the number of times an applicant may have taken and not passed the bar exam.

Participants must also be employed by, or have an offer from, an employer with an office located in California, and they also must agree to practice under a supervising lawyer who is an active licensee in good standing of the State Bar.

But folks are able to perform most tasks under the supervision of a licensed attorney now. So when you require them to be employed and agree to practice under a supervising lawyer you’ve really just formalized the status quo. These folks will have to refer to themselves as “provisionally licensed” in conversations with clients which is, I suppose, better than being titled a “Law Clerk” or “Paralegal” but other than appealing to vanity there’s not much to this.

At least they’re considering offering this to those who got a 1390 in the past — which would qualify for passing today — even if they aren’t willing to apply the score retroactively like their system already contemplates.

Meanwhile, California is starting to come to grips that being a smoldering wasteland might impact the online exam:

Everyone who needs assistance should reach out to all the examiners to comprehend how big this problem truly is. If the bar sees just how destructive this all is maybe they’ll take action and… extend provisional licenses for an extra month or two.

California Bar OKs Temporary Law Licenses in Place of Bar Exam [Bloomberg Law]

Earlier: Technical Support Adopts Innovative ‘Stop Answering The Phone’ Strategy
State Adds ‘Practice Waiver’ To The Least Useful Stage Of Bar Admission Process

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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.

As one Cooley insider told Above the Law, “It was nice being the market leader for a day.”

So, what’s going on at the firm? If you remember way back to last week, Cooley started the COVID appreciation bonus game, offering associates between $2,500 and $7,500 as a special thank you from the firm for their hard work during the pandemic. But then Davis Polk got involved with a new standard, and it just blew away the Cooley scale. Their bonuses started at $7,500 and went all the way up to $40,000. And firms quickly started piling on this new bonus scale.

Though there was a notable outlier. Kirkland — the world’s richest law firm — begged off fall special bonuses, and seemed to be asking the market not to follow the trend.

All of which sets the backdrop for speculation at Cooley. Will the firm pony up the difference between their bonuses and the newly emerging market standard?

It doesn’t look like associates seeking extra cash are in luck. Tipsters report the message from the partnership is, “We’re not matching DPW, but we’re also not matching Kirkland.”

Here’s some perspective from inside the firm:

It’s a bummer, especially after hearing the update on the firm’s numbers. We’re apparently up 8% productivity YoY for August, and down only 1% from this point in the year in 2019 (but rapidly gaining ground after a brief lurch during the early COVID era). There was some reassurance that marketplace total compensation will be taken into account for year end bonuses, but that rings hollow considering Cooley pays individualized bonuses.

We reached out to Cooley for comment, and will update the story if we hear back.

At least Cooley associates got some money — there’s a lot of Biglaw that’s still wondering if their firm will say thank you in the form of some cold, hard cash.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). 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, 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.

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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).

The Law Department Operations Survey, conducted by the Blickstein Group, is the original and most respected benchmarking tool in the in-house legal  department operations space.  

If you are your organization’s operations head, we’re pleased to invite you to participate in this year’s report.  

Participants will receive exclusive access to proprietary results — an unparalleled resource for insight into legal operations trends. 

The survey was created in 2008 to provide law departments with insights into what was then an emerging field, allowing corporate counsel to compare their legal operations practices with those of their peers. 

All individual responses will be kept strictly confidential, and the data will be used only in the aggregate form. 

Not going to lie, it’s been a little frustrating to see that, when confronted with a constitutional crisis over the future of the Supreme Court, Democrats are mostly split between doing absolutely nothing or giving Mitch McConnell the power to pack the Court “to own the cons.” Which is why I was a little taken aback this morning to find that some people in Congress actually have a head for strategy and have taken the first steps toward building a fight around staggered term limits.

Fix the Court reported this morning that Reps. Ro Khanna, Don Beyer, and Joe Kennedy III are introducing the “Supreme Court Term Limits and Regular Appointments Act of 2020” to institute staggered, 18-year terms for active duty Supreme Court justices. Technically this isn’t the FIRST term limits bill — that came in 1807 — but it’s the first that has any value for our current predicament.

Rather than allow the constitutional fabric of the country to be dictated by a life-tenured proto-nobility, the Court would reflect the will of the voters on a lagged basis. Every president gets two picks per term. Nomination fights are capped by requiring the Senate to vote within 120 days or waive their right to weigh in on the nominee, and senior justices would remain to deal with contingencies.

A term limits proposal may not solve the problems with the Court next year, but it solves the problems for the next 50 years which is far more important. The fact that term limits — as opposed to court expansion — enjoys broad public support and influential media backing from the Washington Post, Boston Globe, and L.A. Times makes this the most strategic fight for Democrats to take on.

While there will be constitutional pushback on whether or not this would impinge on the definition of “good behavior,” let the Supreme Court tell that to an American public heavily in favor of this legislation. Consider the institutional damage of that opinion. “Yeah, we know you all voted for this, but since we want to have power forever we’re ignoring you”? I’m not sure as many justices are willing to unleash that firestorm as one might think.

That is, if a case even ever got brought. Who, exactly, has standing, as this Court has defined it, to bring that case? I’m not sure even the notoriously lax ethical rules of the Supreme Court would allow a justice to rule on a case they brought themselves and beyond that, I’m not sure who could file a hypothetical case like this.

And that’s before we consider straight-up jurisdiction stripping the Court from hearing challenges to this statute — a clause that’s not in the current bill but looms as a perfectly constitutional remedy to any mischief from any entrenched justices who wouldn’t want to go.

Court expansion advocates will surely complain loudly about this bill as “giving up” for trying to take power away from the president and Senate rather than embrace wildly oscillating Supreme Courts flipping precedent every election until the Republic falls. For these folks, the trauma of the slow and anti-majoritarian conservative takeover of the Supreme Court — with five justices soon-to-be on the bench who were appointed by presidents who came to office without winning the popular vote^[1] — has created the same mania that drives Wile E. Coyote. And, like the Coyote, they are adamant that this time blowing up the rules because they have the numbers will never backfire on them spectacularly.

But don’t give into that thinking. It’s time to fix this forever.

Obviously this bill is going nowhere with the current Senate. But bills like these are important because they generate steam among the public who — to the extent they even know what the Supreme Court does — mostly ask, “Why do we have anyone get jobs for life in a democracy?”

Which is a pretty good question.

(The bill is available on the next page.)

Earlier: Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier

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[1] George W. Bush’s justices were appointed in his second term where he did win the popular vote… but would he have been there without the power of incumbency? Even if we bracket Roberts and Alito for this discussion, we’re still talking about a third of the Court.

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.

Law.com recently published its latest edition of the Global 100, a ranking of the world’s 100 largest law firms by total revenue. (Even an important ranking like this — released on September 21 — was easy to miss amid the news that Justice Ruth Bader Ginsburg had passed away.) How did these firms do in the year that was? As we learned from the most recent Am Law 100 rankings, 2019 was a pretty good year for Biglaw firms, with some of the planet’s top-grossing firms setting financial records. What are we looking at in terms of the big picture?

Overall, the Global 100’s gross revenue grew by 4.7 percent, bringing the collective earnings of these firms up to $119.6 billion. Of course, this is nowhere near the heights reached in 2018, when gross revenue for the Global 100 increased by 8.1 percent, but when Biglaw is up by $5.4 billion, there’s not much room for complaints. The United States continues to dominate the list, and this time around, 50 firms had more than $1 billion in revenue — and the vast majority of those firms are based in the U.S.

Here are the top 10 firms of the 2020 Global 100 (i.e., the top 10 firms ranked by 2019 revenue). Each of these firms has their most lawyers in the U.S. — except Dentons:

1. Kirkland & Ellis: $4,154,600,000
2. Latham & Watkins: $3,767,623,000
3. DLA Piper: $3,112,130,000
4. Baker McKenzie: $2,920,000,000
5. Dentons: $2,899,600,000
6. Skadden Arps: $2,632,615,000
7. Sidley Austin: $2,337,803,000
8. Clifford Chance: $2,302,070,000
9. Morgan Lewis: $2,265,000,000
10. Hogan Lovells: $2,246,050,000

What about the closely watched profits per equity partner rankings? Among the Global 100, profits per equity partner came to about $1,723,068 in 2019 (a tiny 0.4 percent increase). These are the 10 firms that produce the world’s richest partners:

1. Wachtell Lipton: $6,330,000
2. Kirkland & Ellis: $5,195,000
3. Paul Weiss: $4,699,000
4. Sullivan & Cromwell: $4,653,000
5. Quinn Emanuel: $4,556,000
6. Davis Polk: $4,514,000
7. Simpson Thacher: $4,417,000
8. Cravath: $4,414,000
9. Weil Gotshal: $4,028,000
10. Skadden Arps: $3,919,000

Finally, here are the top 10 of the 2020 Global 100 when ranked by head count:

1. Dentons: 10,977
2. Yingke: 8,862
3. Baker McKenzie: 4,809
4. Jingsh Law Firm: 4,183
5. DLA Piper: 3,894
6. CMS: 3,765
7. Norton Rose Fulbright: 3,266
8. King & Wood Mallesons: 3,258
9. Albright: 3,178
10. DeHeng Law Offices: 2,820

Expect things to look a lot different when the 2021 edition of the Global 100 comes out, as 2019 was the calm before the never-ending storm that is the coronavirus crisis. Revenue will likely be down, profits per equity partner will likely be down, and head count will almost certainly be down. Enjoy looking at these financials while you can.

For the Global 200, Last Year Was the Calm Before the Storm [Law.com International]
The 2020 Global 200: Ranked by Revenue [Law.com International]
The 2020 Global 100: Ranked by Profits Per Equity Partner [Law.com International]
The 2020 Global 200: Ranked by Head Count [Law.com International]

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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.

As the nation pays its respects to Justice Ruth Bader Ginsburg this week, we remember her as much for her story as for her scholarship. How she dated and eventually married Martin Ginsburg, a man who actually cared that she had a brain and viewed her career as important as his own. How she was rejected from every law firm job that she applied to even though she graduated at the top of her class, and how that experience propelled her to make the jurisprudence of gender equality her life’s work. How she heroically stayed on the high court until her very last breath to protect the integrity of the Court and its precedent from unraveling.

In law school, we learn the law but not the stories behind it. So it’s not surprising that legal conferences run much the same way, where speaker after speaker discusses statutes and rules and precedent but rarely the backstory. Occasionally, lawyers will share more hands-on information, such as how they use a product or how they started a firm, but not so much as a story but as a “do it my way” guide to success.

Which is all well and good, but sometimes, I crave real stories. The kinds of late-night stories you shared with your roommates in college. The story about your first time on an airplane or the bongo drum player you met on the bus trip back to school or the stories of your dating history that you dole out bit by bit, when you’re falling in love. Those are the stories that move.

When Jeena Belil and I conceived the Lawyer Mom Owner Summit, we designed an event that would celebrate and empower women lawyers who are struggling to manage parenting and practice in the midst of a global pandemic. To this end, we created panels focused on practical topics like considerations related to running a firm remotely, or how to market when we can no longer meet colleagues or clients in person. And like Justice Ginsburg, who spoke openly about her family life, we also recognized that law intersects with life, and included sessions on personal finance and dealing with challenges of homeschooling and illness. The conference programming offers value to both women and men who are experiencing some of the same concerns.

But most importantly, we wanted to leave space for women to share their stories. Stories of challenge and struggle and success, and leaping at opportunity; and also failure and setbacks and feeling small. Stories of overcoming odds and sticking to principles and doing work that matters.

In the time since Ruth Bader Ginsburg attended law school, we’re still a long way from achieving gender equality in the legal profession. Bar association proclamations, law firm committees, and annual reports sharing the abysmal data have still failed to move the dial. Maybe our women’s stories will.

Some details on Lawyer Mom Owner Summit: The Summit is a first-of-its-kind virtual event to celebrate and empower lawyer moms and all parents struggling to find balance between parenthood and practice in the pandemic.

Scheduled for September 30-October 1, the Summit will deliver two days of programming on topics related to law practice and life: Running a practice in the pandemic and marketing when you can’t meet clients IRL as well as getting control over financial planning and managing challenges like illness, homeschooling, and special needs education. In addition, recognizing that the pandemic and politically divisive environment have prompted personal introspection, the Summit features a panel on transitioning to other legal careers and women currently breaking barriers in law. The entire Summit will be recorded, and the sessions and all content will be available on an evergreen basis to anyone who registers before noon ET Tuesday, September 29. To register, click here. #LMO20

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Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.com since 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.

You may not have known that Bill Murray, beloved cultural phenomenon, has a line of golf shirts. It’s a logical business move as Caddyshack forms the molten core of a golf fan’s worldview. But Murray’s brand also, apparently, runs ads for these shirts with the song “Listen to the Music” by the Doobie Brothers, which is exactly the sort of Yacht Rock that you can imagine blasting from a Mercedes pulling into a country club parking lot.

Unfortunately for Murray, he never bothered to secure any, you know, RIGHTS to use this song. Which brings us to 2020’s clubhouse leader for cease and desist letter of the year.

Eriq Gardner posted the letter on Twitter yesterday. It’s written by Peter Paterno of King, Holmes, Paterno & Soriano, and is a work of art. Taking down a cultural icon this way may feel harsh, but not unlike sending children to the gas chamber, Paterno didn’t want to do it, he… felt he owed it to him. Let’s break it down.

We’re writing on behalf of our clients. the Doobie Brothers. The Doobie Brothers perform and recorded the song Listen to the Music, which Tom Johnston of the Doobie Brothers wrote.

So far so good. Entirely standard opening. As Joseph Campbell taught us, the hero’s journey must begin from a place of familiarity. This is what grounds the audience. What’s more, here we start to realize that there are two audiences taking this journey: Murray and we the legal writers of the world.

It’s a fine song. I know you agree because you keep using it in ads for
your Zero Hucks Given golf shirts.

Uh oh. There’s a something wrong in the zone of familiarity. This could still be a thank you note… but despite appearances, it feels like something else is about to happen. We feel the tension mount as Paterno initiates the call to join him in this adventure.

However. given that you haven’t paid to use it, maybe you should change the company name to “Zero Bucks Given.”

We have crossed the first threshold, people. Not only for Murray’s tale but also for anyone expecting a run-of-the-mill cease-and-desist letter. A lawyer just made a joke? Welcome to the liminal state, motherf**kers!

We understand that you’re running other ads using music from other of our clients. It seems like the only person who uses our clients’ music without permission more than you do is Donald Trump.

The next stage of the hero’s journey has many names, but one of the most common is “trials, friends, and foes.” The hero is tested and meets the allies and adversaries that will define their journey into the realm of the unconscious. Murray’s in trouble. The Doobie Brothers are seemingly only one of his new enemies. And it seems like his only buddy right now is Donald Trump. Uh-oh.

This is the part where I’m supposed to cite the United States Copyright Act,
excoriate you for not complying with some subparagraph that I’m too lazy to look up and threaten you with eternal damnation for doing so.

The realm of the magical mentor is where the hero meets someone who teaches them the ropes of this new world. In a normal letter, as Paterno points out, this is where the lawyer would act as teacher and inform us of the law. But in this wild journey into the unconscious of legal writing, Paterno’s here to teach us that we can let go of that 1L legal writing baggage and not cite chapter and verse to make our point because, you know, the lawyer on the other end will know full well what this means! After all, it’s not going to be… Lost in Translation. Hey yo!

But you already earned that with those Garfield movies.

With the mere mention of Garfield, we have most definitely reached the lowest point for Murray. As writers know, this is what Campbell would call the meeting with the Goddess. Down is up here. All we thought we knew about writing letters is cast aside and while disoriented there is a pull that makes us almost want to stay here in this moment of pure ownage that Paterno has given us.

This is probably that super awkward scene where Carl and Ty meet in the shed that was tacked onto the film despite the fact that Bill and Chevy famously hated each other. So… cannonball!

We’d almost be OK with it if the shirts weren’t so damn ugly. But it is what it is.

Alas, we cannot remain. The journey back begins. “It is what it is.” Now we return to the familiar of home… yet changed by the experience.

So in the immortal words of Jean Paul Sartre. “Au revoir Golfer. Et payez!”

This is a standard C&D letter after all! Even if it’s one that takes one of Carl Spackler’s most famous lines and converts it into the demand. And we are all richer for the experience.

Except Bill Murray, of course. He’s going to have to pay.

(The whole letter is available on the next page.)

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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.