Category: News Feeds

“We have to have trust in our elections process. It’s essential to a strong stable democracy,” Attorney General Ashley Moody told Fox and Friends’ Steve Doocy this morning. And so, to protect democracy, Moody is launching an investigation of billionaire philanthropist Michael Bloomberg for the dastardly crime of cutting a check to a non-profit that helps restore voting rights to Floridians who were convicted of crimes, served their sentences, and are now barred from voting simply because they cannot afford to pay fines or fees.

In a letter to the FBI and the Florida Department of Law Enforcement, Moody said that she was requesting an investigation at the behest of Republican Governor Ron DeSantis to see if Bloomberg had violated Florida’s ban on vote-buying. And then she hopped on television to tell the world all about it, as one does when one is launching a legitimate criminal inquiry and not a political hitjob.

(For comparison, the New York Attorney General, about whom the Trump administration has bellyached mightily, subpoenaed Eric Trump in May, and the public never heard about it until August when she sued to force him to comply.)

“When you hear words like ‘targeting’ certain voters, ‘investing and adding to a particular column,’ that doesn’t matter what party it is. That triggers Florida law,” Moody told Doocy. “Under Florida law, you cannot directly or indirectly give anything of value to persuade or entice a vote.”

Florida Rep. Matt Gaetz (William & Mary Law, 2007) was even more emphatic, telling Fox’s Sean Hannity, “It’s a third-degree felony for someone to either directly or indirectly provide something of value to impact whether or not someone votes. So the question is whether or not paying off someone’s fines and legal obligations counts as something of value, and it clearly does.”

“If Michael Bloomberg was offering to pay off people’s credit card debt, you would obviously see the value in that. [W]hen you improve someone’s net worth by eliminating their financial liabilities, that’s something of value,” he continued.

“Normally, it would be very difficult to prove that that was directly linked to impacting whether or not someone was going to vote. But they literally wrote their own admission.”

Really? Mike Bloomberg offered cash to voters if they agreed to show up at the polls? That seems … unlikely.

Probably because it never happened. Gaetz and Moody’s purported smoking gun is in internal memo reported by the Washington Post in which the Bloomberg team assessed that the most cost-effective way to increase Biden’s voting share in Florida was by paying the fines of formerly-incarcerated felons.

Prior to 2018, when 64 percent of voters attempted via referendum to restore voting rights to felons who had served their time, one in five Black Floridians was barred from casting a ballot due to a prior conviction. Which was exactly what Florida’s 150-year-old felon disenfranchisement law was designed to do.

Florida’s Republican legislature and governor, who had just squeaked into office on a 0.4 percent margin of victory, responded to the popular referendum by passing a law requiring the payment of all fines, fees, restitution, and court costs before a former felon could register to vote. Then they successfully argued in court that this did not constitute a poll tax, even if had the effect of barring poor and indigent people from the franchise.

And because African Americans are reliable Democratic voters, and because such a huge portion of Black voters in Florida fell into the category of persons barred from voting by inability to pay court costs, the Bloomberg team figured they could get the most bang for their election buck by just dumping cash into paying off those fines.

“We have identified a significant vote share that requires a nominal investment,” the memo said. “The data shows that in Florida, Black voters are a unique universe unlike any other voting bloc, where the Democratic support rate tends to be 90%-95%.”

And perhaps if Bloomberg had simply cut checks to Black Floridians to pay their court costs, Gaetz and Moody would have a point. Although it doesn’t entirely gibe with their assertion that those fines are part of the state’s obligation to punish offenders, and 100 percent, definitely, in no wise a poll tax designed to stop Black Flordians from casting a ballot.

But he didn’t. Instead, Bloomberg raised $16 million for the non-partisan Florida Rights Restoration Coalition, which helps all former felons regain their right to vote, regardless of race or party affiliation.

“Different people may give for different reasons, but we are in this for one reason, and that reason is to place people over politics,” the group’s president Desmond Meade told the Post. “We are concerned with people from all walks of life, from all sorts of politics.”

Bloomberg’s motive in making the donation is irrelevant. He simply calculated the odds that Black Democrats would be heavily overrepresented in the pool of disenfranchised ex-offenders and cut the check, knowing that some portion of it would likely pay off fines for Trump voters, too. The Post bizarrely claims that the donation would “pay the court fines and fees of nearly 32,000 Black and Hispanic Florida voters with felony convictions,” although there is no indication that white, MAGA-hatted Floridians are barred from accessing the fund.

“The right to vote is fundamental to our democracy and no American should be denied that right,” Bloomberg responded in a statement. “Working together with the Florida Rights Restoration Coalition, we are determined to end disenfranchisement and the discrimination that has always driven it.”

Gaetz calls for election bribery probe of Bloomberg over pledge to pay Florida felons’ fines [Fox News]
Mike Bloomberg raises $16 million to allow former felons to vote in Florida [WaPo]

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

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Jean Marie Downing to our pages. Click here if you’d like to donate to MothersEsquire.

I found out that I was pregnant and accepted into law school within a few weeks of each other. Because my husband was in the military, I only had a limited window to attend law school before he would be gone to another duty station. So, that is how I was a new mom and a first-year law student.

It worked out well because my husband was also in school and took classes at night while I took classes during the day. He was in an enlisted to officer program.

Fast forward to my last semester and my husband was being moved to a duty station in Rhode Island. Do we go with Daddy or do I stay to finish law school as a single mom? It was too hard to see my almost 2-year-old saying goodbye to his daddy and choose to be separate when the military separates families so much as part of the lifestyle. So, we decided that my son and I would also move up to Rhode Island. Thankfully, after a great deal of effort, I was permitted to do my last semester at Roger Williams law school and still graduate with my class at Stetson. We got student housing for married couples and were lucky enough to find a spot in a daycare near school — the only day care option, but we got in! It was so lovely!

Then, one day I got the dreaded call! When I went to pick up my toddler at the daycare center, he was in the front office. He was 25 months old and he had bitten another child. I was horrified! He had been bitten before, and now he was the biter. Really, the anger that I felt when my child had been bitten was only topped by the horror I felt when my child was the biter! We talked through the issue with my child. Daddy talked to him about it. We read books about not biting.

And then it happened again. The daycare had a three strikes policy. I felt like I was trapped inside a building crumbling from all sides.

So, I will never forget sitting on the floor of our student housing apartment, crying, and telling my 25-month-old that if he didn’t stop biting his friends that mommy would have to drop out of law school because I would have to stay at home with him. “We don’t have any other options for childcare!” I sobbed. “You were potty trained at 22 months! I’m sure you can handle this!”

I don’t know, maybe it was because he attended all of those law school classes with me while he was in utero, but whatever it was, he didn’t bite anyone else after that.

At the time, it was an intensely stressful situation due to the limited childcare and support options available to my family. Now he is finishing up professional dive school (to work on oil rigs — hardhat surface-air-supply diving) and is enrolled at Gulf Coast State College to be an EMT and we laugh about this story.

To my fellow lawyer moms and dads, I hope you enjoyed my walk down memory lane and it helps you. I see you. I know this pandemic is switching your world into limited choices regarding childcare/school, and I hope you find the support you need — even if that support comes from a toddler finally not biting his friends!

Jean Marie Downing is a criminal trial attorney in Panama City, Florida, where she lives with her retired Navy diver husband, a dancing daughter in high school, and 5 cats. Her two adult sons are in school, one for diving and one for pre-law. She’s against racial disparity in our justice system.  She also supports anonymity for an accused unless charges are proven. Watch Just Mercy and 13th Movie to understand. She can be reached at jdowning@pcbeachlaw.com.

The National Football League Players Association has responded to a putative class action complaint filed by retired NFL players Aveion Cason and Donald Majkowski that attacks the union, the league, the retirement plan board, and the disability and neurocognitive benefit plan board based on the process of agreeing to a new 10-year collective bargaining agreement as well as the effects of the agreement on the benefits that former players will receive under its provisions. The 43-page memorandum of law in support of the filed motion to dismiss is based on lack of standing and failure to state a claim.

Initially, the union addresses the fact that the plaintiffs are retired NFL players and that, under the Employee Retirement Income Security Act (ERISA), the union has no duty or responsibility to maintain any specific level of former player benefits and is prohibited from administering benefit plans. Furthermore, it has no duty to represent the interests of former NFL players in collective bargaining negotiations.

Setting that initial issue aside, the NFLPA argues that the plaintiffs failed to plead any facts to support a claim that a change to the Social Security disability offset would apply to them and that the second benefit change — the whole-person evaluation — will not take effect until 2024 and is thus speculative and not imminent. Additionally, the union says that changes to these benefits were necessary concessions.

“Although legally irrelevant, it bears mention that the NFLPA did not want the Social Security disability offset and whole-person evaluation process, but these were necessary concessions to obtain increases in other benefits as part of the give-and-take of collective bargaining,” states the memorandum in support of the NFLPA’s motion to dismiss. “This is precisely what the NLRA empowers a union to do, and pursuant to the LMRA, courts are prohibited from interfering in this bargaining process.”

The NFLPA also addresses the players’ claim that the union failed to disclose all material facts about the new collective bargaining agreement’s impact on retirement benefits and says the claim is far too speculative to proceed in litigation.

“Their theory — that if the NFLPA had disclosed all such pertinent information, then the retired players might have mobilized to lobby active players to vote against the CBA, and then the active players might have changed their votes in sufficient numbers to change the CBA outcome, and this might have led to the negotiation of a different CBA with the NFL that might have provided Plaintiffs greater benefit — is far too remote and speculative to confer standing,” the memorandum states.

The alleged failure to disclose pertinent information was a hot subject in March when former NFL defensive back Eric Reid tweeted about his lawyers sending a letter to the NFLPA demanding answers as to why language in the collective bargaining agreement was purportedly altered after a vote was submitted. He demanded a new vote and an investigation into the matter. Newly elected NFLPA president J.C. Tretter responded by indicating that the union would re-examine changes to the Total and Permanent Disability benefit, which could cause roughly 400 former players to see their Social Security disability benefits lowered as of January.

The plaintiffs have also claimed that the union breached the collective bargaining agreement, but the union points out that the underlying claim is a complaint about the changes that the new agreement creates relative to the old agreement and that there has not and could not have been an actual breach of the new provisions at this time.

Ultimately, the former players suing the NFLPA are likely to have their case against the union dismissed based primarily on the union’s argument that former players have no cognizable legal interest in the collective bargaining ratification process of a union that only represents current NFL players. While Reid wants answers, it would likely need to be current players who push the union for information surrounding the ratification process, not those who are no longer part of the bargaining unit.

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.

The process of reopening Biglaw offices is bound to be a slow one filled with many stops and starts. Just ask Squire Patton Boggs. The international law firm had to shut down its Manchester office after lawyers tested positive for COVID-19.

According to RollOnFriday, the office was “evacuated after two separate outbreaks of Covid.” Apparently there were two separate attorneys who took COVID tests over the weekend, and were at the office when they got the positive results. Which led to closing the office ASAP:

“Neither individual experienced symptoms while in the office”, emphasised a spokesperson for SPB, adding that the lawyers have not returned to the office while they self-isolate.

The results let to the immediate closure of the office on Monday “out of an abundance of caution” and a deep clean. It re-opened on Wednesday.

Though the office is now reopened, according to a spokesperson it “remains, as it was previously, at limited capacity,” and employees at the office are “doing so on a managed, voluntary basis and in accordance with the health and safety protocols put in place by the firm.”

One of the attorneys who tested positive was reportedly working on a corporate deal when the test result came in. The entire team was immediately sent home, and, as RollOnFriday notes, they had to depend on the kindness of another Biglaw firm to get everything done:

An insider claimed the associates “had to rely on another law firm”, DLA Piper, “to help run the rest of the deal for them”, which “meant a couple of all nighters for the DLAP bods”. Clearly the Blitz Spirit is alive and well, brings a tear to the eye so it does.

We’d like to believe this is the last hiccup in the re-opening of Biglaw, but, it probably won’t be.

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).

Last Friday, the Hemp Industries Association (HIA) and RE Botanicals, a South Carolina hemp CBD manufacturer, sued the Drug Enforcement Agency regarding its recently published interim final rule (the Rule).

The petitioners claim the Rule is unlawful because it exceeds the DEA’s authority and violates the Agriculture Improvement Act of 2018 (the 2018 Farm Bill).

If you follow this column or keep your finger on the pulse of the hemp industry, you may recall that the Rule suggests, in part, that intermediary hemp shall be treated as a Schedule I controlled substance during any point at which its THC concentration exceeds 0.3 percent on a dry weight basis — even fleetingly during the processing phase and before the percentage is brought back into legal compliance for the finished product. This, the petitioners argue, is contrary to the plain language and the intent of the 2018 Farm Bill, which legalized hemp, its derivatives, extracts, and cannabinoids so they could be regulated as agricultural commodities, and thus, fall outside the DEA’s jurisdiction.

In addition, HIA and RE Botanicals argue that Timothy Shea, the DEA’s acting administrator, failed to observe certain administrative procedures imposed under the Administrative Procedure Act (the APA) by implementing the Rule without providing the public with notice and the opportunity to comment before the Rule went into effect — According to the DEA, the Rule “merely conforms DEA’s regulations to the statutory amendments to the [Controlled Substances Act] that have already taken effect, and it does not add additional requirements to the regulations.” (Emphasis added).

While the Rule clearly suggests that the DEA is exceeding its authority and is attempting an illegal power grab over lawful hemp activities, only time will tell whether the U.S. Court of Appeals for the District of Columbia will be receptive to the petitioners’ arguments. Yet, one thing is certain, the hemp industry is determined to protect the lawful production of hemp that Congress established when it enacted the 2018 Farm Bill.

Indeed, this industry-wide effort is not limited to challenging the DEA Rule. For months, hemp stakeholders have challenged state regulations with far-reaching consequences for the industry.

For example, last month, four hemp companies sued the State of Texas for imposing a ban on the manufacture, processing, distribution, and retail sale of smokable hemp products.

Although a 2019 state law tasked the Department of State Health Services (DSHS) with adopting rules prohibiting the manufacturing of smokable hemp products in the state, DSHS exceeded its authority by extending the ban to the distribution and retail sale of these products, despite thousands of comments objecting to the ban.

The Texas district court that heard the case first issued a temporary restraining order (TRO) that prevented the state from enforcing the ban for a few weeks. Then, last Thursday, the court granted a temporary injunction that voided the DSHS regulation prohibiting the production, distribution and retail sale of smokable hemp products until a trial is held in February 2021.

While the issuance of the TRO and the temporary injunction do not mean that the state overstepped its boundaries, these decisions by the Texas court are promising and encouraging for the industry.

Since the enactment of the 2018 Farm Bill, the hemp industry has had to continuously fight state and federal roadblocks to protect its interest and has had to overcome obstacles with which no other legal industry has been confronted. Yet, the industry’s tenacity along with these lawsuits should give federal and state regulators pause as they signal that these agencies cannot flat-out ignore the legality of hemp.

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.

Just because some Biglaw firms are handing out COVID-19 bonus money hand over fist, we mustn’t forget there are still some firms that are dealing with COVID-19 austerity measures, from slashed salary to furloughs to layoffs. Today, those cuts end at one of America’s most profitable firms.

The latest firm to completely roll back its salary reductions is K&L Gates, another member of the billion-dollar club that placed 39th in the Am Law 100, with $1,026,626,000 in 2019 gross revenue.

Back in April, the firm reduced salaries across the board, with equity partners seeing a 20 percent reduction in scheduled advances, and firm leaders taking even larger reductions. Income partners, associates, and allied professionals and staff were subject to a 15 percent reduction in their salary provided their income didn’t fall below a $75,000 floor. In late August, the firm walked back those reductions, with equity partners due to see a 15 percent cut to their advances at the end of September, while all other employees would sustain a 10 percent pay cut starting at the beginning of September (with the income floor shifting to $100,000 for no pay cuts).

Now, thanks to further review of its austerity measures, K&L Gates will be doing away with its salary cuts entirely. Here’s a relevant excerpt from a memo (available in full on the next page) sent by Jim Segerdahl, the firm’s global managing partner:

We are pleased to confirm on behalf of the Management Committee that it is now time to discontinue the Covid-19 salary reduction initiative entirely on a going forward basis, and that we are doing so for all affected allied professionals, associates and income partners effective October 16th (there may be some timing variations in certain markets).  Thus, salaries that were reduced as a result of the special Covid-19 initiative will return to pre-reduction levels on a going forward basis at that point in time.  The special Covid-19 related reductions in the provisional advances made to equity partners will cease on a going forward basis with the advances scheduled for the end of October.

In this memo, Segerdahl once again reminded everyone that K&L Gates is holding open the door for bonuses for those who have made “extraordinary contributions” during the pandemic. (Alas, the firm made no mention of fall appreciation bonuses.)

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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.

Pretty much everything has been said about Justice Ruth Bader Ginsburg that anyone and everyone would care to know. I’m not going to repeat the encomiums, the recitation of all that she did to advance the cause of equal protection, to forcefully advocate for the cause of women and men. Others have said those things much more eloquently than I ever could. I know that, at my age, I will not see the likes of her in my remaining lifetime.

What can I say about her that hasn’t already been said? I can talk about how sex discrimination affected my career and how, if we aren’t vigilant, we could back-pedal (or the favored term of the day “walk back”) the progress that has been made, hard-fought progress, hard-won progress, the incremental progress that Ginsburg favored, to build upon what had been won.

I am a “second wave” feminist, who in the early 1970s, decided to go to law school. My father, a physician and never a bastion of enlightenment or progressive thought, said that I should be a legal secretary rather than a lawyer. Thanks, Dad, for that vote of confidence. But that was the thinking at the time. Women should take subordinate roles in the workplace because they were too delicate, too fragile, too emotional, too (choose your adjective) to be subjected to the rough-and-tumble world of the legal profession.

I remember when the “help wanted” ads were divided between men and women, and most, if not all, of the job opportunities for women were secretaries, nurses, and teachers. Look how hard it was for Ginsburg to get a job when she graduated at the top of her law school class at Columbia. Being a woman and being Jewish didn’t help her cause in the late 1950s. New York firms told her that they didn’t hire women; it was unstated but understood that they also didn’t hire Jews.

It wasn’t surprising that my law school graduating class was 20 percent women, given that the law school had been started by a woman. When we graduated in 1976, there were very few jobs open to us. Some of us started our own firms, worked for small firms, or went into government practice. Those were pretty much the only opportunities available to us all those years ago.

Sex discrimination was rampant and unabashed. After working at a district attorney’s office for a year or so, trying cases back-to-back, the then president of the State Bar of California announced at a meeting that I attended that women did not make good trial lawyers. Probate, family law, those were the areas that women lawyers belonged in, he said, not prosecuting pukes or representing business interests. Phooey on him, I thought.

When I moved to private practice, I was mistaken for the court reporter or the social worker, but never the attorney. Taking notes at meetings where I was the only woman lawyer was not why I went to law school. To add insult to injury in my first in-house job in the early 1980s, I was told that I didn’t have as high a title or would make as much money as a recently hired man because he “had a family.”

It’s been a long haul for women in the profession, and it’s still an uphill battle every day. One recent report says that the pay gap between male and female lawyers in Biglaw has not narrowed but widened. Swell. Sisyphus schlepping that rock up the mountain has nothing on us.

Ginsburg did many mitzvahs for all of us who have sought equal protection under the law. Mitzvah is Hebrew for “a good deed.” She performed many mitzvahs, both on the bench and as a tireless advocate.

It’s fitting that she died on the first night of the Jewish New Year. Is there symbolism that her death came when it did? I think there is. The Jewish tradition of doing good, of making a difference in the world could not have had a better advocate than Ginsburg. She believed in “We the People,” she believed in justice for all, she fought hard to make this world a better place.

What was also so admirable about her was her ability to forge friendships with people with whom she disagreed judicially. Exhibit A was her enduring friendship with Justice Antonin Scalia. Two people with widely divergent judicial philosophies could nevertheless come together as friends. How I wish that people would look at that friendship in this divisive era and learn from it.

She believed that persuasiveness is not the same as partisanship and thought that minds could be changed with thoughtful analysis and understanding the issues of how discrimination affected women and men. Every case that the lawyer Ginsburg brought to the Court was heard by men who were clueless about the challenges that women faced trying not just to get ahead, but just to get a rung on the opportunity ladder.

It’s never been easy being a woman lawyer, and I think the same holds true today. Ask any woman whether she thinks it’s easy. It may be easier (a relative term) today than when future Justices Sandra Day O’Connor and Ginsburg finished law school and looked for employment, but I don’t think that any woman would say that it’s easy today.

Ginsburg made a huge difference in how society viewed equal protection: equal protection of the laws for gender equality, equal pay, same-sex marriage, disability rights, voting rights, reproductive rights, and the like. She used vivid language to tell the Court to unlock the doors that thwarted women, that limited dreams and ambitions. She fought for the things she cared about and showed how to bring others to join her. She exemplified tikkun olam, to repair the world.

I owe her a debt of gratitude that I can never repay, but I can pay it forward. So can we all. May her memory be a blessing.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.