Category: News Feeds

Last week, the Supreme Court narrowly agreed not to rescind the DACA program, thus permitting young undocumented immigrants to remain in the United States for at least the near future.

What it didn’t do was rule on the wisdom of DACA or say that the Trump administration cannot lawfully rescind it.

Some background — the Deferred Action for Childhood Arrivals (DACA) program was created in 2012 by President Barack Obama to side-step years of Congressional logjam on immigration reform. It happened through an executive memorandum ordering the Department of Homeland Security to defer the immigration prosecution of certain young people who entered the country without papers. To qualify, the young people had to have lived here since 2007, had to either be students or completed high school, or had to be honorably discharged from the military.

They also had to have committed no serious crimes, not posed a threat to national security or public safety, and be under the age of 31. In 2014, this program was expanded to include people of any age who entered the United States before the age of 16 and lived in the U.S. continuously since 2010. The 2014 changes also attempted to defer the prosecution of parents of U.S.-born children (called DAPA), but this initiative was stillborn when it drew immediate court challenge and was ruled illegal.

The interesting thing about DACA is that all litigants in the recent Supreme Court argument agree that it was unlawfully established. As Justice Clarence Thomas said in his dissent, it was a program created “unilaterally through a mere memorandum,” while it should have been either a legislative decision or drawn up through the normal rule-making process. “To state it plainly,” Thomas wrote, “the Trump administration rescinded DACA the same way that the Obama administration created it,” and according to him, there’s nothing illegal about that.

So why did five justices agree to let DACA survive, if even just for the moment? Their rationale, written by Chief Justice John Roberts (considered to be in the conservative camp), was that it wouldn’t be fair to renege on a promise made by the government, upon which so many relied.

Putting into immediate deportation the over 7,000 young immigrants who have “enrolled in degree programs, embarked on careers, started businesses, bought homes, gotten married and had children,” would be unjust, Roberts said.

He also cited the economic impact rescinding DACA would have. The cost of replacing workers would total $6.3 billion. There’d be a $25 billion loss in economic activity, a $60 billion loss in federal tax revenue over 10 years, and $1.25 billion loss in state and local tax revenue.

The DACA feud got started when the Trump administration wrote its own memorandum rescinding the Obama administration’s memorandum. The thought was, if Obama could create DACA with a mere memorandum, then Trump could rescind it with one.

The majority opinion, however, faulted this logic, saying that for any action to be in compliance with the Administrative Procedure Act (which governs decisions taken by the Department of Homeland Security), it must not be “arbitrary or capricious.” The fact that the Trump memo failed to consider the “reliance interests” of DACA recipients made the decision to rescind “arbitrary and capricious.”

While pro-DACA litigants included an equal protection argument stating that Trump’s overt hostility toward immigrants, who he’s called “criminals, drug dealer and rapists,” was an overt violation of equal protection law,  the majority didn’t find this claim substantiated because Trump’s prior statements were not “contemporary” with the memo. (Justice Sonia Sotomayor was the only judge who would have upheld the equal protection claim.)

The decision is viewed by all sides as political. As President Donald Trump tweeted: “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

The justices have given the Trump administration a roadmap for a second go at getting DACA rescinded. According to the decision, his administration just has to “assess the existence and strengths of any reliance interests and weigh them against competing police concerns” in order to pass muster.

But this might not be so easy. This weighing of interests should take time, at least if it’s to be done right.

Hopefully, the time it takes will be enough for U.S. voters to decide who they want in office when and if the DACA fight is revisited.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

White & Case is facing a discrimination lawsuit filed by a former senior legal assistant. In the lawsuit, filed Thursday in Manhattan state court, Hannah Kim alleges violations of New York City Human Rights Law for pregnancy, gender, and disability discrimination, hostile work environment, failure to accommodate, retaliation, and constructive discharge. She also seeks unpaid wages pursuant to New York labor law.

As reported by Law.com, Kim alleges a pattern of harassment that began before she went on parental leave in 2016:

“Plaintiff was subject to severe harassment by the individual defendants as a result of her need to express milk while at the office,” Kim said in the complaint. “This harassment was continuous and ongoing until Plaintiff stopped expressing milk for her child at work in approximately the fall of 2018.”

Rita Masino, one of Kim’s managers and a named defendant in the lawsuit, allegedly made repeated comments about breastfeeding, including that the plaintiff’s son was a “grown-ass boy,” that breastfeeding was “hink,” and that “formula was invented for a reason.” The complaint also alleges Masino made comments about Kim’s breasts and nursing bras.

According to the complaint, Kim was also prevented from using the firm’s lactation room. Plaintiff further alleges that when she latched her own door for privacy while pumping Carol Grajeda, another supervisor and named plaintiff, repeatedly tried to open the door while she was mid-pumping. Additionally, Kim alleges Masino interrupted her by telephone for seemingly minor issues.

The complaint alleges both supervisors repeatedly told Kim she should “keep her legs closed” to prevent additional pregnancies. Kim also alleges Masino told her she “better not be planning on getting pregnant anytime soon,” because Grajeda would “not put up with that shit.”

The plaintiff also says Grajeda and Masino harassed her following a car accident when she sought a part time work schedule to accommodate her recovery.

Kim says she voluntarily left the firm in February of this year after she was denied a bonus for 2019 and her year-end review was repeatedly put off, which she says are signs she was going to be fired. She also alleges she has not received her last paycheck and unused vacation days.

White & Case has not commented on the lawsuit.

Read the full complaint on the next page.

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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).

A note from Kerriann: This week I am proud to turn my column over to my dear friend Gilbert Bayonne, Esq., to share some of his thoughts on race and the bar exam. I hope he will return soon to share more of his insights and wisdom with us. 

I am a black man in America, the first-born son of Haitian immigrant parents. This article is not the answer to American racism as I do not believe that black Americans should be tasked with solving an age-old problem that we did not create. However, I do believe in the power and great beauty of black narratives told free from the shackles of whiteness.

I do not believe a meaningful conversation can be had about race, racism, and the concept of whiteness without context. In 1857, Chief Justice Roger Taney, in true white supremacist fashion, authored the Dred Scott decision, which legalized the invisibility of black people in America. He wrote, with the confidence of every Karen after him, “[blacks] had for more than a century before been regarded as beings of an inferior order […] and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” This is neither hyperbole nor am I trolling. Squarely, this is our legacy.

163 years after the Dred Scott decision, we still find ourselves in a fight for the recognition of our humanity against an ideology that has infected all of America’s institutions. My colleague and good friend Kerriann Stout, wrote in response to NY BOLE’s prioritization of first-time bar takers over repeat test takers,  “[New York BOLE] is excluding the most marginalized groups of test-takers, and they aren’t telling us why.” As a graduate of one of the six HBCU law schools in the United States, I would argue that NY BOLE has already answered this question. In that, institutional racism is cyclical and, more importantly, purposive. Taney’s words in 1857, from the highest court in this nation, spoke to America’s commitment to the erasure of black people.

How difficult is it to marginalize the marginalized? According to a Florida International University Law Review study, in 2016 nearly half of black law school applicants (49 percent) were not admitted to a single law school. That share is larger than that of any other racial or ethnic group. Irrespective of whether NY BOLE, or anyone else for that matter, has considered the disparate impact this decision will have across racial lines, this policy bares the odor of racial exclusion, nonetheless. Individuals in the legal community, if we actually are one, have the luxury of dancing around the issue of racial exclusion. The others that Taney spoke of do not share in this luxury.

Personally, I attended Southern University Law Center, a law school founded as a result of a lawsuit filed by the great Charles Hatfield against Louisiana State University in 1946 when he was denied admission to law school solely on the basis of race. Prior to 1946, black students could not study law in Louisiana. Interestingly enough, Hatfield never attended law school. After filing his lawsuit, in the heart of the Jim Crow South, Hatfield received constant death threats. Those threats forced Hatfield and his family to seek refuge in Atlanta, Georgia. His law school dream deferred, he, like many other black heroes, was forced into social martyrdom. The luxury of privilege is that it operates like an account filled with unearned assets that one set of people can pull from at any time. Those privileges come at a great cost. And too often, black Americans, like Hatfield, find themselves on the outside of the promises of this country.

I am not sure where we, as a legal community, if we are one, are headed. However, we do know that history has a way of repeating itself, and societal hierarchies are interlocking. As attorneys, precedent is a tool of the trade. We study its impact, and we are forced to interrogate it from all angles. Is there much distance between the words of Taney in 1857, the deferral of Hatfield’s law school dream, the 49 percent of black applicants denied admission to law school, and NY BOLE’s recent decision? Are these things inextricably tied in the wheel of history? For all the illusions of black progress and advancement in the legal profession, I wonder how far we’ve actually come. Perhaps, time has already answered those questions. 

Gilbert Bayonne is the founder of The Bayonne Firm where he is committed to the professional and rigorous representation of clients. His experience includes representing clients in Criminal, Immigration, and Civil Law matters.

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Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

Atkins pitch man and occasional actor Rob Lowe told Conan O’Brien last week that he’s friends with Justice Clarence Thomas which… sure, why not?

Lowe explained that he’d be interviewing the justice on his show, which sounds like a celebration of the sort of neutered both-sides political fantasy befitting a West Wing alum. Where are his kids to troll this move?

If you’re wondering how Lowe met Clarence Thomas, he said that he met the justice at his own induction to the Horatio Alger Society where he described Thomas as “studly” which is lit-rally a ridiculous descriptor for a member of the Supreme Court. The justices may be a lot of things, but “studly” isn’t one of them. Thomas is a nerd lawyer, Long Dong Silver is studly. Get it right.

Lowe dropped the revelation of his friendship with Thomas on Conan’s podcast where he was promoting his own upcoming podcast because podcasts are the sourdough starters of the rich and famous. Let’s take a break at this point to remind everyone to subscribe to the various Above the Law podcasts.

Justice Thomas also gave Lowe his cell phone number:

“And you’re like, ‘Jeez, shouldn’t there be, like, a vetting process?” Lowe joked about getting through to a U.S. Supreme Court judge so easily on the phone.

We don’t really have a real vetting process to put him on the Court in the first place so why should a cell be any different?

Earlier: Rob Lowe’s Son Mercilessly Mocks His Dad’s Legal Acumen On Instagram

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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.

I’m on the board of my apartment building. We voted to require masks when you’re in the building. I run jog (without a mask, out in the streets, more than six feet away from everyone) in the morning. But I carry a mask in my pocket: When I return to the apartment building and walk the thirty steps from the back door to the service elevator, I’m in public. I’m on the board, so I put on a mask for those thirty steps. It may be silly, but it’s only right.

For several years, I served as the chief compliance officer of my company.  During those years (and some would say permanently), I was humorless. You look at the ethics complaints coming up through the system, and you realize that people take offense at damn near everything. As the chief compliance officer, you shouldn’t give offense. So I didn’t. I might have been boring but not giving offense was part of the job. (It’s slightly easier now that I oversee litigation. You’re still in a leadership role, but you can lighten up a little bit.)

So here’s what I don’t understand: The United States is facing one serious policy issue, about which reasonable minds should certainly differ, and one scientific issue, about which reasonable minds could not possibly differ. Why have those two issues become intertwined?

The policy issue is this: For how long should we shut down the economy to reduce the spread of COVID-19?

This is a very hard question. How quickly should we have shut down the economy at the outset? At what speed should we reopen? These are hard trade-offs to consider: If we leave the economy closed people will be out of work, people will be driven into poverty, domestic violence and alcoholism will increase, and so on. If we open the economy, we avoid those social ills — but people will die. How many deaths should we tolerate for how much economic and social cost? (Don’t tell me that’s an immoral question.  Governments make those decisions all the time: Should the speed limit be 20 mph or 70 mph? It depends on how much inefficiency we’ll tolerate for how many deaths. How many safety precautions should we take when digging mines? How tall should we allow a building to be? Governmental decisions will inevitably result in deaths, but we make those decisions.)

Politicians will disagree about the speed with which we should reopen the economy, and both sides can hold reasonable positions. We should encourage that debate, make a reasoned choice, and then move on (informed by new data as that data become available).

The scientific issue, unrelated to the tough policy choice, is this: Should people wear masks in public?

This is not a policy issue about which reasonable minds could differ. There’s plenty of scientific evidence showing that wearing masks reduces the spread of COVID-19. Wearing a mask may be a pain in the neck, but everyone should tolerate a minor nuisance for the greater good of saving lives. This is not an issue as to which politicians, or anyone, should differ.

But somehow they do.

Democrats now generally favor wearing masks; Republicans do not. President Donald Trump says that some people wear masks “to signal disapproval of him.” That may now be true — but, if it’s true, it’s only because the government has already blundered so badly. It is Trump himself who refuses to wear a mask and who suggests that there’s a legitimate argument against wearing masks (by tweeting that there are “[s]o many different viewpoints” on the issue).

I understand that we live in a partisan time. But can’t we occasionally let an issue of universal public health remain nonpartisan?

Or am I wrong, and I can jog without that silly mask in my pocket?

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

As you’d imagine for an operation that’s been in seemingly terminal decline for as long as Deutsche Bank, it does a lot of things wrong. But, then again, who doesn’t? The bank Deutsche’s former CEO once idolized has certainly stepped in it a few times. Even the House of Dimon makes the occasional unforced error.

No, what makes Deutsche Bank such a special, hopeless case is not that it makes mistakes. It’s that it makes the same mistakes, over and over and over again, before getting ordered to do something about the endless making of that type of mistake, and then fails to do even that, establishing a new vicious cycle of meta-mistakes, on and on, ad infinitum. Consider, for instance, the Germans’ little problem with money laundering, as we have, ad infinitum.

* A lawyer in India appeared at a virtual hearing in a T-shirt lying in bed last week. This attorney should have read our earlier coverage of American lawyers making similar mistakes during remote appearances. [Tribune]

* The U.S. Attorney in Manhattan made clear that he was fired and did not voluntary step down. [Reuters]

* Black female YouTube creators have filed suit alleging that the algorithm used for the video-sharing website is racist. [AdWeek]

* Some New Jersey attorneys are in hot water for allegedly agreeing to pay bribes to secure government contracts for legal services. [New Jersey Law Journal]

* A Texas lawyer is now facing a $6 million judgment even though he failed to attend the summary judgment hearing due to scheduling confusion caused by COVID-19. Seems like this attorney has good arguments for a reconsideration motion… [Texas Lawyer]

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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.

The plan, which will end an effective subsidy, will take place as early as June 23 when a currency peg is removed and an auction system for foreign exchange is set to begin, the people said, asking not to be identified because a public announcement hasn’t been made. The plan may be implemented a week or two later when its clear how the new system is working, one of the people said.

The move is an attempt to save the government $100 million of foreign exchange. The country has been beset by persistent fuel shortages as the central bank doesn’t have the money to pay for adequate imports.

The central bank currently provides letters of credit each month to fuel-importing companies. The letters of credit had been issued at a fixed exchange rate of 25 Zimbabwe dollars per U.S. dollar, compared with a black market rate that’s almost four times that.

Gold Subsidy

John Mangudya, the central bank governor, didn’t answer calls seeking comment. “The finance ministry is looking at the exchange rate and they are best placed to comment on the fuel subsidy issue,” Energy and Power Development Minister Fortune Chasi said by phone.

George Guvamatanga, the secretary for finance, didn’t immediately reply to a request for comment.

The southern African nation requires 1.4 million liters (370,000 gallons) of gasoline and 2.5 million liters of diesel daily, according to the Zimbabwe Energy Regulatory Authority.

Earlier this month, the central bank also canceled a gold-subsidy program, flagged by the International Monetary Fund as contributing to excessive money supply which had weakened the Zimbabwean dollar.