Category: News Feeds

Amidst all the horrifying images of police violence last week, one of the underappreciated tragedies was the rapid spread of armed vigilante groups roaming the streets and attacking protesters under the pretense of “preventing looting.” The liberal elite may point and laugh at rural communities for busting out machine guns to guard against Antifa busses that exist only in their meth-fueled fantasies, but it’s not like their own cosmopolitan utopias were free of this mentality. The mob in Philadelphia was infamously given a free pass by nearby authorities as they assaulted and threatened people at random. Law enforcement nationwide spent the week claiming that protesters were hoarding bricks and other weapons — though the NYPD could only scrounge up hapless delivery guys with bike tire repair kits — and yet these people carried hammers around with impunity.

New York had its own “armed patrol group” in South Brooklyn and one of its organizers is a self-described conservative law student at Fordham^[1] whose experience putting together a posse should have taught him exactly how problematic his worldview really is.

But don’t worry, it didn’t seem to teach him anything.

The story begins with a post on a school group chat:

Well, if no one else is going to use a baseball bat this year.

Why would anyone loot Sheepshead Bay? Looting was, in the grand scheme of things, fairly rare over the last week but to the extent it happened, Manhattan and its big box stores have everything someone could possibly need. The convenience of one-stop shopping doesn’t, like, cease to be a draw. Sheepshead Bay is where Macy’s sends its junk products.

In a story by NY1, the group’s organizers explained that they were focused on responding to police scanner traffic (which I can personally attest to being rife with specious rumors last week that were debunked within hours) and chasing down people “looking for hidden weapons such as rocks inside of crates, gasoline containers” — a paranoid falsehood spread through right-wing media and the NYC Mayor’s office.

As you can probably guess, the group quickly ballooned into a hive of racist conspiracy theorists posing problems for the student earnestly trying to keep things as civil as a private security force can. As the student would later write in the group chat, “This group went from 2 to 1000 in 2 days so it’s very hard for me to stay on top of it and I am working with other admins to enforce our rules.” Yeah… who would have thought that telling yahoos to arm themselves would bring out the crazies. This should have been the teachable moment, but even Batman couldn’t stop the hockey pads guy from messing around in Gotham, so what chance could this subtle lesson in board moderation have?

One classmate appealed to him over the group chat:

I truly don’t want to think that you have bad intentions, but you should see what people are saying in response to your coalition. I have personally never seen so many openly racist and aggressive people coalescing under one call to action. Do better I am pretty sure i want the same thing as you guys.

Honestly, his response is so meta in the context of a vigilante response to a protest over police brutality that it should collapse the universe:

There are definitely bad apples and we are working to talk to them, explain, etc!

As the other student pointed out that “Bad apples kill people.”

Ultimately, Dean Matthew Diller posted a statement for law students to “express that as a community we should denounce this type of rhetoric and to underscore the inappropriateness of the conduct.” This should have ended this troubling chapter in the school’s history.

Friends, it did not.

However, I wanted to share with you the email that I sent to Dean Diller when I first found out that he might issue a school-wide statement. Please note that even though he took the time to respond to YOU and YOUR CONCERNS, it seems that my side of the story didn’t even merit discussion. So much for a tolerant academic environment where conservative students are treated as equal to their liberal counterparts. I’m really glad that we’re going in this non-tolerant direction as a society (and I don’t mean non-tolerance to racism), it fills my heart with joy (not).

Yeah, it might be less of a liberal-conservative thing and more of a “only one of you created a 1,000-person private army of bad apples” thing.

Also, just want to give a give a quick shout-out to the true hero of Fordham Law, not me, the guy who ended up being an organizer of a community group that has stopped burglaries and made people feel safer, has not confronted not one protestor or any person, and is working to do a lot of good in the community, but actually supposed human-rights attorney Urooj Rahman ’16, who was arrested on May 30 for throwing a molotov cocktail at a police vehicle and passing out incendiary devices at the demonstrations.

Indeed, Rahman is very much in jail for allegedly throwing an incendiary device at an unoccupied police vehicle. Rahman also isn’t a Fordham Law student that the class has to interact with every day and the guy calling for armed civilians to go out and enforce their own subjective sense of the law is. So Dean Diller’s obligations are more properly focused on this situation.

Also, how did he stop burglaries and never confront any person? Not to double up on the Simpsons references, but is this like Lisa’s Anti-Tiger Rock? Maybe there just wasn’t ever any threat of burglaries in the first place.

In any event, this is an opportunity to realize that, regardless of conscious intention, this whole project sprung from racially tinged rumor-mongering. That’s why the group grew so quickly to include so many “bad apples” and it should give the student pause.

Instead… oh no… he’s gonna do it, isn’t he? He’s really going to go to the same bullshit playbook:

Although I am still extremely busy I challenge the school to have the courage to set up a debate/conversation on these issues with myself as one of the participants….

A quote-unquote debate! Someone please call 911 because I’m bleeding from my eyeballs. These aren’t debates, they’re exercises in empty sophistry designed to give the illusion of credibility to crackpot ideas. Don’t fall for it.

… rather than resorting to your usual mob-like tactics and giving in to them. I hope you are all excited about the new world order that you are trying to build.

Please, tell us more about mob-like tactics.

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[1] As we often do with law students who don’t file lawsuits or otherwise post in a public forum, we’re not going to identify the star of this story, even though he’s named in mainstream media stories about the group. We do this gratuitously in the usually vain hope that law students will get their act together before they enter the profession.

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.

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It’s not often you feel bad for federal clerks (I mean, it happens). They’ve basically won one of the great prestige-offs of the legal industry. And when their time learning the profession at the robes of their judge — or not learning it, as the case may be — is over, they can write their ticket to any one of a number of excellent post-clerkship careers. All of which is particularly true if you manage to land a clerkship at the D.C. Circuit, which even in the land of elite clerkships is a goddamned gold star.

But, that doesn’t mean you don’t have to deal with some bullshit. Like, perhaps, when Judge Laurence Silberman decides to email the entire circuit his thoughts about how awful it is that people want to change the names of Confederate monuments. Yup. That really happened.

As reported by The Intercept, on Sunday, Judge Silberman decided to unload his thoughts on Elizabeth Warren’s amendment to the National Defense Authorization Act to strip the names of Confederates from military assets. Yeah, the Reagan appointee is not pleased that in 2020 we are finally having the conversation about removing the names of the losers of the Civil War from military bases and monuments. As he wrote in an email to the entire circuit:

“Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.

The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”

There’s an awful lot to unpack in this wildly inappropriate missive, but why listen to ‘lil old me when an actual D.C. Circuit clerk did all the work of calling him out? That’s right, no one responded to Judge Silberman’s email for a whole day until an unnamed clerk rose to the challenge. Now that takes some guts. And they did it with some real style, as you can read for yourself:

“Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”

“[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.

“In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.

“Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.”

That’s just glorious.

Several judges finally weighed in, most thanking the clerk for their words:

“I know it took courage to send such an email — I am grateful you shared your very important voice and views with me,” a circuit court judge replied.

The Intercept also notes another judge “worked to do clean up for Silberman, noting that, while he couldn’t speak for Silberman, perhaps he only meant to refer to the possibility that the legislation may have applied not just to base names, but also to gravesites.” Of course, Warren has already agreed that actual gravesites would not need to be renamed, but it’s a great out and Silberman jumped onto that life preserver:

“Thank you for your thoughtful message,” he wrote the clerk in a reply all, saying the other judge’s interpretation was “absolutely correct; my concern was limited to cemeteries.” Silberman didn’t explain why he needed to suggest the Civil War wasn’t really about slavery if he had such a minor objection. Silberman did not immediately respond to a message left at his chambers.

Once again, the work of correcting white privilege was left to a black person — and someone pretty far down on the circuit’s hierarchy. That’s a problem. When well-meaning white liberals want to know what they can do to dismantle white supremacy, and are told by BIPOC that they need to call out that stuff when they see it, THIS is exactly what they mean.

Listen, this is a fantastic story because this clerk is awesome and called out a Circuit Court judge. But everybody in the circuit — especially Silberman’s fellow judges — had an opportunity to do something important that they frankly missed.

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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).

Anyone practicing patent litigation knows that attorney’s fees motions at least seem more prevalent than ever for a number of reasons, topped by the fact that district court judges continue to actually award fees by declaring cases exceptional ever more routinely. Spurred by the perceived ease in getting fees awarded, prevailing parties in patent cases continue to file fees motions, both for their perceived deterrent effect against future challengers as well as to simply recoup what they can from what is often an unwilling, aggravating, and expensive foray into the clutches of the legal system. In short, fees motions are a part of modern patent practice, even for those practitioners who would like to see their volume reduced.

Some common scenarios for when an attorney’s fees motion can be expected include cases that: 1) get bounced before they really take flight, leading to a credible argument that the plaintiff should have known better (e.g. Alice motions that are not close calls), 2) go to decision on summary judgment where the losing party has persisted in advancing a rejected argument, such as pressing forward despite an unfavorable claim construction, or, 3) exhibit clear litigation misconduct by the losing party over the course of a case that resolves at trial, or even earlier, (e.g. taking actions designed to increase the cost burden on the opposing party, or where there is demonstrated discovery shenanigans). In truth, the range of situations that have led to attorney’s fees motions in patent cases has broadened. With the usual differences in responses nationwide by district court judges, who have seen their workloads in terms of handling disputes widened by the recent developments. As with all things patent, however, it is the Federal Circuit’s proclamations on issues that give direction to the courts, counsel, and litigants — particularly in fast-changing areas of patent practice. Put another way, in the current environment, when the Federal Circuit issues a precedential decision concerning attorney’s fees, attention must be paid.

Last week, the Federal Circuit issued just such a precedential decision in a long-running competitor IP battle over spill-proof cups for toddlers, Munchkin, Inc. v. Luv N’Care Ltd. et al., case no. 2019-1454. The procedural history tracks that of many modern patent cases. After some maneuvering in district court, an IPR (affirmed in a separate CAFC appeal) invalidated the claims of Munchkin’s patent, leading to Munchkin dismissing its pending infringement claims. Luv N’Care then moved for fees, with the district court “finding the case to be ‘exceptional based on LNC’s arguments in its fee motion that the trademark and trade dress infringement claims were substantively weak, and that Munchkin should have been aware of the substantive weakness of its patent’s validity.” Munchkin appealed, arguing that the district court never really considered the strength and weakness of the merits of Munchkin’s various claims, rendering a grant of fees both unsupported and incorrect.

In its decision awarding fees, the district court found that Munchkin’s trademark, trade dress, and patent claims were all “substantively weak.” Included in the fee award were Luv N’Care’s “attorney’s fees for litigating the IPR… and its associated appeal.” That component was based on the idea that the IPR was a direct result of Munchkin’s decision to initiate litigation, coupled with the fact that the issues in the IPR were not duplicative of those reached in the pending court case. All told, it was a $1 million-plus bill that Munchkin faced for choosing to assert its rights. Thankfully for Munchkin, the Federal Circuit reversed the grant of attorney’s fees — effectively wiping out Munchkin’s liability.

More importantly for other existing and potential litigants, the decision in Munchkin reiterated that attorney’s fees in patent cases are reserved for “exceptional” — rather than just losing — cases. Acknowledging that it usually defers to exceptional case findings made by district courts, the Federal Circuit in Munchkin still expressed concern that Luv N’Care “failed to make the detailed, fact-based analysis of Munchkin’s litigating positions to establish they were wholly lacking in merit.” On the patent claim, for example, the Federal Circuit noted that Munchkin had received a favorable claim construction ruling, which formed the basis for its validity position in both the IPR and court case. Further, the Federal Circuit refused to find fault with Munchkin for continuing to press the district court case while the IPR was pending. Nor was it willing to endorse a rule where a patent owner would face a “§ 285 fee award in a patent suit anytime its patent is canceled in a co-pending IPR proceeding, without any consideration of the relative strength of the patent owner’s legal theories, claim construction arguments, or proffered evidence in defense of the patent.” In short, those hoping for attorney’s fees in patent cases are reminded that they should consider and make a real evidentiary showing that the case itself is exceptional, considering all the circumstances.

Ultimately, the decision in Munchkin is at least a caution to district courts and winning parties that an award of fees in patent cases must be based on evidence, rather than logical shortcuts or a results-oriented analysis. The Federal Circuit’s call for more rigor in attorney’s fees determinations is a necessary corrective to the growing perception that all patent litigation musn’t end unless an attorney’s fees motion is also adjudicated. For now, at least, the Federal Circuit has served notice that the word “exceptional” still carries weight, compelling a prevailing party to substantiate any fees request. In Munchkin, Luv N’Care’s presentation didn’t meet that burden. As a result, there is joy in Munchkinland, despite Munchkin’s otherwise total loss in the case.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

One by one, states are reopening and getting back to business, with law firms trying to figure out how to return to their offices amid the ongoing coronavirus pandemic. Things are kind of getting back to “normal,” but if you thought that Biglaw firms were out of the woods when it comes to austerity measures, then you better think again.

Back in April, Fried Frank’s chairman, David Greenwald, said the firm had “no plans for layoffs or pay reductions in the immediate future.” It’s now mid-June, and Fried Frank, which came in at No. 56 in the most recent Am Law 100 rankings with $776,000,000 in gross revenue, is holding true to that promise — for the most part.

As opposed to layoffs, furloughs, or pay cuts, Fried Frank is offering a voluntary buyout program to all eligible nonlawyers at the firm. Those who take a buyout will receive one week of salary for every year they have worked for the law firm, plus a lump sum. Law360 (sub. req.) has the details:

The offer will be open to employees below the assistant director level that the firm characterizes as business services professionals, such as legal executive assistants and those working in information technology, marketing, recruiting and human resources units, according to Fried Frank.

The payouts will be capped at 24 weeks, to be paid as part of the regular payroll cycle, said firm spokesperson Alejandra Ramirez. Eligible employees will also receive a lump sum payment of $1,000 for every year they have worked with Fried Frank, along with a full year of medical benefits through the Consolidated Omnibus Budget Reconciliation Act, or COBRA, she said.

We wish all of the legal professionals at Fried Frank who accept and are approved for the buyout the best of luck should they seek new jobs in the legal industry.

If your firm or organization is slashing salaries, 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.

Fried Frank Offers To Buy Out Nonlawyers Amid Pandemic [Law360 (sub. req.)]

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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.

The foibles of Texas real-estate investment trusts no longer concern Kyle Bass. His mind is entirely focused on weightier matters, of state, and no longer has any time for the petty concerns that previously occupied his hours and portfolios.

The SEC? These days, it seems, it has nothing but time. And it’s decided to check in on a little matter it seemed to have dealt with definitely back in 2018. You see, after the loud and voluminous fulminations of a short-seller against United Development Funding, the SEC had a little look around. And then the FBI had a look around—unannounced and in person. And what the SEC found is that UDF had inflated the value of two funds, and also used money from one of the funds to pay out to investors of the other. The short-seller thought that sounded an awful lot like a Ponzi scheme, and so he called it one. Unfortunately for that short-seller, who as you have probably guessed by now is none other than Kyle Bass, the plain-language meaning of things have no place in regulatory settlements, and so the SEC was not so base as to use the term “Ponzi scheme” in its deal with UDF. And that, in the ever-amusing world of securities regulation, could make Kyle Bass a market manipulator.

The NCAA and, more recently, the Power Five conferences have begged Congress for an antitrust exemption based on numerous prior lawsuits that have allegedly served to drain their resources. A new 95-page complaint filed in the U.S. District Court for the Northern District of California may add fuel to their fire, even though legislators like Representative Anthony Gonzalez have made it clear that they are not in favor of providing the NCAA the type of blanket relief requested.

The action was brought by Arizona State swimming and diving team member Grant House and Oregon women’s basketball player Sedona Price, who are represented by law firm Hagens Berman. They claim that the NCAA and Power Five conferences have violated federal antitrust laws by prohibiting college athletes from receiving any consideration in exchange for the use of their names, images, and likenesses (NIL).

On June 12, Florida Governor Ron DeSantis signed into law a bill that will allow college athletes in Florida to have those very rights beginning on July 1, 2021, irrespective of whether the NCAA or the Power Five conferences change their current restrictions. However, that is just one state and does not do anything to alter the current landscape, which has prevented college athletes from partaking in an economic system where everyone is earning money except for them.

The lawsuit brought by House and Price begins with a focus on current NBA player Zion Williamson, who was a star during his one year at Duke University. Yet, Williamson was unable to capitalize off of his athletic prowess while Duke was earning millions of dollars from its sponsorship contract with Nike.

The relief requested by the plaintiff is in the form of an injunction that will remove NCAA rules that currently prohibit college athletes from earning compensation from the use of their names, images, and likenesses, as well as monetary damages based on the monies that they should have received in the past for the use of their images on social media and through television rights deals.

“[I]n a system where billions of dollars are generated primarily off the backs (literally, when sponsor[s] pay to outfit student-athletes with branded equipment and apparel) and athletic successes of student-athletes, the restrictions on NIL compensation do not prevent exploitation — they are exploitative … The unfairness in this arrangement grows exponentially with each new multi-million (or multi-billion) dollar television and sponsorship deal, coaching contract, and facility construction, while the selective and blanket restrictions on student-athletes are maintained,” states the complaint.

One industry that would likely engage many college athletes in endorsement deals is composed of shoe and apparel companies such as Nike, Adidas, and Under Armour. The complaint says that, as of 2019, those companies had exclusive rights to outfit 97% of all Division I football and basketball programs, earning schools and coaches millions of dollars annually in income and noncash benefits. Meanwhile, college athletes cannot currently take advantage of similar economic relationships.

The complaint was filed with the intention of being converted into a class action, which seeks to include current or former college athletes who were active for any period since June 15, 2016.

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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.

* Michael Bloomberg is requesting that a judge dismiss a lawsuit filed by former campaign staffers alleging that Bloomberg promised the staffers they would have jobs until November. Maybe Bloomberg was just really optimistic about his prospects… [Hill]

* Check out this interesting profile of the lawyer who is representing the family of George Floyd. [New Yorker]

* Executives at Ebay have been criminally charged for allegedly sending live roaches, spiders, and other nasty items to a couple who criticized the website. [Tech Crunch]

* A transgender woman at the center of a landmark Supreme Court case did not live to see the outcome of the matter. [CNN]

* A former corporate lawyer is now a top instructor at Peloton. Looks like this attorney was on the fast track to success… [Fortune]

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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.

Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

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

According to a survey by the National Association for Law Placement, Inc. (NALP), what percentage of law firm offices intend to hold their 2020 summer associate programs entirely online?

Hint: 82 percent of law firm offices say they still intend to have summer programs this year, whether it is online, in-person, or a hybrid.

See the answer on the next page.