Presents!!! — See Also

We Have Some Lovely Gifts: Davis Polk is giving associates some nice items and experiences as an extra, non-cash bonus. Some people might rather have the cash, but there’s a nice wellness angle here. Associates are just going to dump the cash into paying off their debt which feels entirely soul-crushing. By forcing them to take a vacation or splurge at Nordstrom, they actually get to recharge their batteries and feel like they got something.

The Deep End Of The Jury Pool: Lawyers assume that the end of the pandemic will reset the world to its 2019 status quo and we’ll all go back to in-person court sessions. And, given the profession’s dogged resistance to change that’s probably true. But online trials have produced a big bump in generational and racial diversity and those are accomplishments that shouldn’t be thrown away lightly.

The RAND Corporation, In Conjunction With… the Saucer People: Parler wants payback from Amazon for killing their site. It’s all a big conspiracy, and apparently one involving time travel because they make numerous allegations based on events that happened before Amazon supposedly did anything. Some very, very rich people paid for Parler and they’re very, very much not using that money on top-flight legal theories.

Getting Roped Back Into The Office: Vaccines are likely to be widespread by the summer and Ropes & Gray is eyeing a September 6 return date. It’s a very good choice for reopening the office — kids heading back to school, vacation weather receding, everyone just starting to not shut up about pumpkin spice — all in all a great time to get back together.

Quantifying The Legal Industry’s Response To The Killing Of George Floyd

(photo by David Lat)

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

According to a new study by the NALP Foundation and the National Business Institute, what percentage of law firm respondents say they created new programs to address racial injustice and civil unrest as a result of the Black Lives Matter protests following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery, and more?

Hint: Plus 43 percent of responding law firms say they redeployed employees to work on diversity and inclusion efforts in the wake of the unrest.

See the answer on the next page.

Sperm Count Is Plummeting, Will Sperm-Related Legal Work Skyrocket?

Forget pandemics. Instead, it’s time to worry about worldwide plummeting sperm counts. The end result could mean the end of humankind. But, in the meantime, will the rapid decline in male fertility mean a rise in sperm-related legal work? Are my priorities backward?

I recently learned of the severe drop (over 50%!) in sperm count worldwide from podcast guest Jonathan Waldman, author of Swimming Aimlessly: One Man’s Journey Through Infertility And What We Can All Learn From It. Reiterating the seriousness of the issue, last week, USA Today came out with an article focused on a study showing a greater than 59% decline in sperm count from 1960 to 2015. Although the author gives a nod to the naysayers, it seems pretty clear that this is happening. Aside from our dystopian Children of Men future becoming more probable, what does this mean for the legal profession?

Regulation. The evidence points strongly to chemicals being the culprit. These substances are used to make plastics soft and flexible, which is great. But many are also endocrine disruptors, and seem to have a side effect of massacring the building blocks of human reproduction.

Shanna Swan, epidemiologist and co-author of some pretty convincing studies on the decline, explained to USA Today her recommended approach to deal with the situation. Regulations. In fact, she recommends throwing out the traditional planet-saving three Rs: Reduce, Reuse, Recycle. Instead, she advocates a new three Rs: Remove, Replace, Regulate. I assume only because “litigate” doesn’t start with an R.

As legislators take the threat to our global sperm supply seriously, expect to see increased regulations on the use of certain chemicals. And increased regulation pretty much always means more work for attorneys.

Will Phthalates Be The New Asbestos? As the causation evidence becomes stronger, the backlash seems focused on the producers and commercial users of these reproductively destructive chemicals. Perhaps, like asbestos, a whole new area of litigation will arise to fight for compensation — IVF, after all, isn’t cheap! — to all those now going through infertility treatment, or unable to have children, due to low or no sperm count proximately caused by chemical exposure.

ART Law On The Rise. With New York’s new surrogacy-friendly law, and fertility fraud becoming an increasingly intriguing field, more attorneys are already heeding the call of assisted reproductive technology (ART) law. Many ART attorneys already spend a significant amount of time representing clients in known sperm donation agreements. These agreements navigate and memorialize the understanding between the donor and recipients as to a myriad of issues. Answering questions like, can the sperm samples be used for an unlimited number of children? Can they be further donated to others for conception purposes? And will the parties be required to disclose future-discovered genetic conditions?

Swan explained that at the current rate, half of men in the most affected areas (such as North America and Europe!), will have no sperm by 2045, and the remaining half will suffer from low counts. That’s a recipe for a DNA diversity disaster, and a lot of sperm donation agreements in the future.

And don’t forget about the embryos. ART attorneys have long been concerned about the million-plus embryos in frozen storage as a result of increased use of in vitro fertilization. Each cryopreserved embryo represents legal risk for the fertility clinic, the storage facility, the gene contributors, and others. However, with the grim projections ahead for the future of our sperm, embryo donation is likely to be on the rise. And those cryopreserved embryos — like the seeds in the Svalbard Global Seed Vault — may become humankind’s last hope for our civilization.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Phil Falcone’s Plan To Revolutionize Long-Term Care Insurance Went About As Well As His Plan To Revolutionize The Wireless Industry

In his day, Phil Falcone was a pretty good hedge fund manager. But he’s not so good at paying taxes, so he had to stop doing that, and unfortunately, just about everything he’s tried since has fallen squarely on the “paying taxes” side of his competency: building the wireless network of the future, making women’s undergarments, (allegedly) meeting loan obligations, (allegedly) paying lawyers and, of course, paying taxes. To this list, one can now add figuring out the long-term insurance care industry, although this is very much someone else’s problem now.

NYC Bar To Rudy Giuliani: Nice Law License You Got There, It Would Be A Shame If Something Happened To It

(Photo by Alex Wong/Getty Images)

The complaints against Mr. Giuliani allege serious misconduct. They do so in great detail, and appear to be substantiated by extensive evidence – consisting in large part of Mr. Giuliani’s own statements. They describe a pattern of misconduct that Mr. Giuliani engaged in both inside and outside the courtroom with the purpose of subverting a Presidential election, culminating in his speech on a podium at the Ellipse in Washington DC on January 6, 2021 when he urged a crowd of angry Trump supporters to engage in ‘trial by combat.’ These allegations require a serious investigation, a hearing, and, if the allegations are substantiated, the imposition of appropriate discipline.

— an excerpt from a statement issued by the New York City Bar Association in support of professional disciplinary investigations into Rudy Giuliani’s conduct related to the 2020 presidential election, specifically his “flagrant disregard for his obligations as an attorney.” Click here to read the statement in full.


Staci ZaretskyStaci 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.

Parler Drops Nutbag Federal Suit Against Amazon, Files BATSH*T Complaint In State Court

If at first you don’t succeed, try try again. But this time add in another thirty pages of gobbledygook state tort claims undergirded by unsubstantiated allegations and causal links that disregard the fixed nature of linear time.

Isn’t that how the old saying goes?

Social media platform Parler has dropped its federal claim against Amazon only to re-file in the Superior Court in King County, Washington. The spiffy new fifteen-count complaint alleges defamation, negligence, breach of contract, tortious interference, political discrimination, as well as various violations of the state’s consumer protection statute.

As in the federal suit, Parler claims that Amazon colluded with Twitter, who is not a named defendant, to head off a potential rival to their “surveillance capitalism” business model.

And how does Parler know this? Well, it just does….

In mid-December 2020, Twitter, entered into a multi-year contract with AWS under which AWS would provide cloud computing services to Twitter in exchange for large sums of money. On information and belief, part of the unwritten agreement between Twitter and AWS was that the latter would use its position as the provider of Parler’s cloud services to minimize Parler’s threat to the internet advertising market.

As evidence, Parler points to an email on January 7 (which comes after “mid-December”) from someone at Amazon asking if the former president had made a Parler account yet. He had not, or at least not one that was verified, but, according to Parler, “it was expected that Trump would move to Parler, bringing many of his 90 million followers with him. And AWS knew that Trump and Parler had been in negotiations over such a move. If this were to materialize, Parler would suddenly be a huge threat to Twitter in the microblogging market, and to Amazon itself in the digital advertising market.”

How Amazon would be better off without the revenue from Parler’s expected exponential growth is unclear. But good on Jeff Bezos for anticipating in December when he inked the deal with Twitter that the platform would be banning Trump a month later and would want to shiv Parler to head off a potential rival. The man really is a genius!

Parler is confident that Amazon’s cancellation of its web hosting contract with Parler on January 12 was a product of anticompetitive collusion. Or possibly illegal political animus against conservatives. Or, you know, could be that they were trying to muzzle Donald Trump. (When you’re trying to establish mens rea, the name of the game is to suggest as many alternative motives as possible, right?)

The company also alleges that Amazon defamed it by leaking the January 9, 2021 termination of contract letter in which Amazon wrote “Recently, we’ve seen a steady increase in this violent content on your website, all of which violates our terms. It’s clear that Parler does not have an effective process to comply with the AWS terms of service.”

Leave aside for a moment exactly how a letter which says “you haven’t complied with our TOS” amounts to defamation. And let’s assume arguendo that Parler will be able to prove that Amazon gave the letter to BuzzFeed. It could happen, right?

We already know from the federal suit that Parler had to be told to take down posts saying things like “Shoot the police that protect these shitbag senators right in the head then make the senator grovel a bit before capping they ass,” and “We need to act like our forefathers did Kill [Black and Jewish people] all Leave no victims or survivors,” and “This bitch [Stacey Abrams] will be good target practice for our beginners.” So the company may have a wee problem establishing that its practice of relying on “volunteers” was sufficient to ensure compliance with Amazon Web Services’ ban on using the platform to incite violence.

There’s also the minor issue that the complaint points to Parler’s ban from Google’s app store on January 8 and from Apple’s store on January 9 as evidence of the reputational harm arising from Amazon’s “defamation,” despite the fact that both occurred before the termination letter leaked late on the evening of the 9th.

And that’s not the only timing problem in this suit. Parler makes a convoluted claim that Amazon is somehow responsible for the embarrassing hack of huge amounts of its user data.

Finally, to add injury to injury, after AWS shut off all services to Parler, AWS left open Route 53, a highly scalable domain name system (DNS), which directed hackers to Parler’s backup datacenters and caused the hackers to initiate a sizeable DNS attack. In other words, AWS essentially illuminated a large neon arrow directing hackers to Parler’s backup datacenters. And the hackers got the message, launching an extremely large attack—one 250 times larger and 12- 24 times longer than the average Distributed Denial of Service (DDOS) attack. Later, AWS would terminate the Route 53 link, but the damage was already done. And this AWS-facilitated attack was a threat by AWS to all future datacenters that, if they were to host Parler, they too would be attacked by unprecedented hacks.

This allegation, which is the basis of multiple contract, negligence, and consumer protection counts, disregards the reality that the intrusion took place before Amazon booted Parler off its servers. As Wired notes:

In the days and hours before that shutdown, a group of hackers scrambled to download and archive the site, uploading dozens of terabytes of Parler data to the Internet Archive. One pseudonymous hacker who led the effort and goes only by the twitter handle @donk_enby told Gizmodo that the group had successfully archived “99 percent” of the site’s public contents, which she said includes a trove of “very incriminating” evidence of who participated in the Capitol raid and how.

By Monday, rumors were circulating on Reddit and across social media that the mass disemboweling of Parler’s data had been carried out by exploiting a security vulnerability in the site’s two-factor authentication that allowed hackers to create “millions of accounts” with administrator privileges. The truth was far simpler: Parler lacked the most basic security measures that would have prevented the automated scraping of the site’s data. It even ordered its posts by number in the site’s URLs, so that anyone could have easily, programmatically downloaded the site’s millions of posts.

So, maybe not so much with Parler’s allegation that Amazon damaged it by enabling a hack which “caused severe reputational and financial harm to Parler as users will no longer trust Parler to keep their private data safe.” Good luck proving to a court that a someone else made you look incompetent when you served your own users up to hackers on a silver platter, complete with geolocation data, of course!

Parler also accused Amazon of “secretly selling Parler user data to anyone with a certain type of Amazon account ” but … that will have to be enough crazy for today. The link’s below if you want even more funtimes.

And, PS, Trump never joined Parler. But he totally would have if it hadn’t been for those damn dirty rascals at Amazon!

Parler, LLC v. Amazon Web Services, Inc. [via Courthouse News]
An Absurdly Basic Bug Let Anyone Grab All of Parler’s Data [Wired]


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

No, You Can’t Do That

We always try to come up with a theme for these shows after the fact and this is clearly the “no, you can’t do that” episode. Paul Davis is back and trying to convince the courts to overthrow the government again. Twitter is banning fan accounts for no reason and getting fun letters in response. And the South Dakota Attorney General is ducking behind the law to protect his political career.

Human Rights: A New Role For The Intelligence Community

Seal of the Office of the Director of National Intelligence

Human rights literally disappeared from former President Trump’s National Security Council (NSC) when he dropped the term from the position once known as the special assistant to the President for multilateral affairs and human rights.

President Biden has appointed a new coordinator for democracy and human rights in the NSC. This firmly reestablishes the issue of human rights as a national security concern and communicates that the administration will focus on human rights as a foreign policy issue. Given this renewed focus, the Intelligence Community (IC) can and should take actions to support the NSC and administration on human rights intelligence.

Some may question whether the IC should focus on human rights. Even beyond the moral component of caring about human rights, there are very practical national security reasons to focus on human rights. Human rights abuses are often indications of other threats and can tell analysts and decision makers much about the stability of nations. There are also real soft power stakes to human rights abuses from information operations to support to alliance building to international organization negotiations.

But, can the IC support human rights intelligence? It can and it already does. Tearline, for example, is a program by the National Geospatial Intelligence Agency (NGA) to share intelligence information with non-profits to support their research, including on human rights. For national security issues, the IC can use classified capabilities, from spy satellites to human intelligence sources, to provide even more detailed human rights intelligence to decision makers. Probably the biggest support that the IC can provide is professional all-source intelligence analysis to connect the dots between sparse information and what is really going on. Classified sources and the ability to connect the dots are increasingly necessary given the extent to which authoritarian regimes like the Chinese Communist Party (CCP) go to censor and hide human rights abuses.

But to fully engage on human rights issues, the IC would need to become even more comfortable working with open-source information, since the vast majority of reporting on human rights is done in the open by non-profits. But to truly work with such non-profits, the IC must rebuild trust, as there are many who see the IC as having been complicit in human rights abuses. Intelligence community leaders must be open to such concerns and make real efforts to rebuild trust with the public.

Importantly, the use of classified intelligence sources and methods may make the information itself classified. This could create significant ethical dilemmas for officials in terms of what to share with the public. However, the IC should welcome this tension. Treating human rights as an intelligence issue will force the IC to come to terms with its own need for transparency.

The atrocities occurring in Xinxiang against the Uighur people by the CCP provide an example of how the IC can support human rights issues. It’s been estimated that well over one million Uighurs have been interned in what amount to concentration camps in Xinxiang by the CCP. Additional human rights abuses have been reported, everything from forced labor to beatings.

China has used its strict authoritarian controls over travel, the media and Internet to make it very difficult to report on what is really going on in Xinxiang. Collecting information in authoritarian nations is what the IC does best. Classified satellites and human intelligence sources could be used to better understand what is going on, while all source analysts connect the dots. This intelligence reporting could be used to better inform China policy and to support outreach to allies with similar concerns. In some cases, the intelligence could be declassified to provide better information to the global public about the CCP’s atrocities.

If the IC is to focus on human rights, it requires customers and budget. The Biden administration has done something great by creating that customer in the NSC. The administration could go even further by issuing an Executive Order to the IC to focus more effort on human rights. Intelligence community leaders will need to translate administration focus into requirements, budgetary choices and decisions to set up new offices, train and equip intelligence officers and devote collection resources.

To really succeed and build an IC human rights capability, Congress must act to provide the funding necessary for the IC to devote the resources it will need.

Anthony Vinci, former associate director and chief technology officer of the National Geospatial Intelligence Agency (NGA), is an adjunct senior fellow at the Center for a New American Security (CNAS).

Juries For Online Trials Are Younger And More Diverse

(Photo by Fred Prouser-Pool/Getty Images)

COVID is going to be with us for a little while longer, but the show must go on and many jurisdictions have moved trials online. While the most entertaining result of this move into uncharted territory is an influx of cat attorneys, it’s also changing the makeup of the juries hearing these cases. And in ways that may have a tangible impact on verdicts.

Sound Jury Consulting looked at the data from King County, Washington, and compared samples of the remote trial jury pool with the in-person jury pool from pre-pandemic times and the results are fascinating.

The most significant difference we noted was in the age category. In-person trials had an average age of 48.5 and median age of 49. With remote trials, the average age drops to 44.8 and the median age drops even further to 41.5. The median age is the more important point of comparison here. As a reminder, the median is the midpoint for all jurors, meaning 50% of the jury pool in remote trials is under 41.5 and 50% is over 41.5. That is a big difference from in-person trials where the median age is 49, but let’s dig a little deeper.

This translates to a jump in millennial participation from 30 to 43 percent. As Sound Jury Consulting’s Thomas O’Toole puts it, this “very well may have stopped the heart of insurers and general counsel reading this post since millennials are often cited as one of the reasons for the recent trend towards nuclear verdicts.” It’s an interesting book-end to a conversation we had with O’Toole back in June about the fact that in-person jury pools during COVID were likely to get more pro-business because the category of people who would show up for an in-person jury and Republicans were close to a perfect circle. We didn’t know what to expect then about juries moving online, but it looks to be the opposite impact.

Turning to the issue of race, we saw other notable differences. In-person jury pools were 81% white, compared to 71% with remote jury pools, which suggests that remote trials could result in greater diversity in our jury pools.

That’s a significant bump in diversity. Seattle is about 65 percent white so the move to remote invites a pool that is much closer to an accurate reflection of the city. It’s the sort of revelation that makes you wonder if remote jury pools might be worth keeping around even after everything returns to normal. The impulse is to run back to the old ways as soon as we receive an all-clear, but if the process of dragging people to a dismal central location to sit around for days only to not be picked has a dramatic impact on the demographics of the pool that’s a big deal. Could remote trials or at least hybrid trials become a fixture for at least some cases? It’s worth thinking about.

At the very least, we could move grand juries online. Having to head to court for a few hours a day over the course of multiple weeks is obnoxious and a drag on people’s workday. Let them log on and listen and then go back to work.

We know we have the technology, we just need the will to use it.

Jury Pool Differences with Remote Jury Trials [Sound Jury Consulting]

Earlier: Juries Are About To Get A Lot More Corporate-Friendly Thanks To COVID


HeadshotJoe 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.

Top Biglaw Firm Sets Its Sights On A September 2021 Office Reopening

Many Biglaw firms have remained mum on both their plans for COVID-19 vaccination and their eventual return to the office, but now one of the most successful firms in the country has announced a target date for their reopening, and it’s possible that other firms will follow in their footsteps.

Late last week, Ropes & Gray — a firm that brought in $1,903,616,000 gross revenue in 2019, putting it in 13th place in the most recent Am Law 100 rankings — issued a memo to attorneys and staff letting them know that permissive office usage will continue until Labor Day. Thereafter, “look[ing] ahead with great optimism as COVID-19 vaccines become more readily available,” it’s likely that everyone will be back to the office for business as usual.

Here’s an excerpt from chair Julie Jones’s memo (available in full on the next page):

We hope that sharing a more certain long-term plan now helps you address some of the logistic stress you and your families may experience as the seasons change and lead to new living, childcare and family obligations.

Even in advance of September 6th, as more members of the Ropes community are vaccinated and safety conditions improve, we hope you will find safe and creative ways to be together in person.   For example, we anticipate that many more of you will begin returning to our offices voluntarily well in advance of September 6th.   We think that you will find that being in the office will be a welcome change; it has been an energizing experience for many of us.

Ropes is being respectful of its employees’ unique homelives and will provide “at least 45 days’ notice before moving from permissive usage to a broader office return.” A source from the firm had this to say about the new return-to-work plans:

I appreciate that the firm is being flexible and understanding with people returning, especially with summer coming. It shows they’re understanding of the situation and that it will take time for everyone to adapt to going back to a workplace setting.

Jones made no mention of Ropes & Gray’s plans for employee vaccination, if any.

Are you ready to return to work this fall? We certainly hope so, because now that a firm like Ropes & Gray has made its intentions known, it looks like that may be what other firms are expecting of their attorneys in just a few months. As with all things having to do with COVID-19, these plans are likely subject to change, but be sure to prepare yourselves for office life once again — just in case.

(Flip to the next page to see the Ropes & Gray memo in full.)


Staci ZaretskyStaci 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.