New York Bill Seeks Temporary Open Book Bar Exam And Everyone Else Should Too

While there are some jurisdictions throwing caution to the wind during the pandemic and telling applicants that toughening up and not dying of respiratory failure builds professional character, most are sticking with the online version for the time being. Was the online exam a horrid mess? Absolutely. But it didn’t kill anybody and clearing that extraordinarily low bar is shockingly what passes for “good” these days.

But it shouldn’t be. It’s better than an in-person exam, and has the potential to be a perfectly viable substitute, but the national experience with the October exam — racial bias, massive cheating flags, applicants urinating on themselves or being forced to quite because of mensuration, a woman sat still through LABOR to avoid getting dinged by the software — managed to get most people through a truncated test, so bar examiners decided to try it again.

In fact, they decided to double down! Despite acute problems stemming from proctoring algorithms that flagged applicants for blinking excessively during a shortened version of the bar exam, jurisdictions decided to tackle the full exam this time around. Because the bar examiners had to take the full test (unless you’re the people writing the bar exam), so these kids have to do the same thing. Except it’s not the same thing. Just as I didn’t take the bar exam walking uphill both ways in the snow — it was July, but you get the point — I also didn’t take it under buggy surveillance during a global pandemic. This isn’t even in the same ballpark of testing experience.

But the full test it will be. Sit longer without bathroom breaks staring at the screen without moving… or else! And remember that disability accommodations provide for more time so this extends their forced panopticonic imprisonment even longer still.

New York Assemblymember Jo Anne Simon introduced legislation to allow the bar exam to be administered open book if the exam is remote. It’s not an entirely novel concept. Indiana was forced by circumstances to offer an open book exam when its online provider failed and the state was forced to give the exam over email.

This would all be obviated by administering the bar exam as an open book exam. Lawyers practice law by reference to texts, not by memory. Not only would this reflect the reality of law practice but would eliminate the need for the intrusive remote monitoring software, including facial recognition of test takers, during the upcoming February 2021 bar exam.

Let’s all say it again: “the practice of law is an open book exam.”

The resistance to open book exams exposes the critical lie at the heart of the bar exam industry. We can’t have open book exams, because too many people might all get sufficiently similar “right” answers. And this presents problems because despite billing itself as test of minimum competency, the test actually scales itself to ensure a certain percentage of people fail, thus justifying the need for the test in the first place (to keep out the people who it decided to fail).

An open book test is a more realistic simulation of the practice of law; it would yield — assuming no post hoc thumbs on the scale — results that better gauge the achievement of minimum competency, and would avoid almost all of the pitfalls of online exams.

If you’re in New York, get out there and advocate for this common sense bill. If you’re in another jurisdiction, send this bill to your own legislators and ask them to follow suit. The harm to the public is not in “lawyers who know how to research,” it’s too many who try to invoke “normal scrutiny” from memory.

Test lawyers like you want them to practice. Test lawyers like human beings. Test lawyers open book.

Earlier: California Bar Exam Flagged A THIRD Of Applicants As Cheating
Online Bar Exams Rely On Facial Recognition Tech And Guess What? It’s Still Racist!
Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness
Indiana Junks Online Bar Exam Format, Will Run Test Over Email
ExamSoft Tells Senators That Facial Recognition Problems Are Everyone’s Fault But Theirs
The Nation’s Top Defender Of The Bar Exam Knows Exactly How To Value Diploma Privilege Systems


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.

New York Lawmakers Want To Take Paul Singer’s Toys Away

Paul Singer certainly had a lot of fun with Argentina a few years ago. But while Elliott Associates made a not particularly small, albeit painfully patient, fortune by combining the lack of a collective action clause in the country’s defaulted debt with the pari passu boilerplate no one had previously bothered to read, let alone take seriously, every sovereign nation on earth learned an important lesson, which was to make goddamned sure to include the former in all future issuance, unless you are, for some reason, Jamaica, so as to be able to impose your restructuring terms on any hedge fund who might want to hold out which 99.9% of your other creditors thirst eagerly for however many cents on the dollar you’re willing to pay out.

Morning Docket 02.10.21

(Image via Getty)

* A woman is apparently considering a lawsuit against the maker of Gorilla Glue after she purportedly sustained damage from using the product in her hair. Not sure the claims will “stick”… [Fox News]

* Alan Dershowitz added his own voice to the chorus of commentators who believe Donald Trump’s impeachment lawyers did not do a good job on the first day of the impeachment trial. [Yahoo News]

* An animal rights lawyer is accused of hiring a hitman to kill her ex-husband and his girlfriend. [New York Daily News]

* The Senate has set a hearing date to advance the nomination of Merrick Garland to be Attorney General of the United States. [Hill]

* The union that represents performers who dress up as Disney characters is facing some legal challenges. It would be interesting to see those union members walk a picket line… [ABC News]


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.

Texas Holding ‘Em

Nothing says 2021 patent litigation like a good venue dispute. As I have pointed out on these pages numerous times, including in a December column on the Google/Sonos patent wars, “venue is a critical component of patent litigation, from pre-suit seeking of litigation funding to post-filing motion practice.” For good reason, as a patent owner’s likelihood of success — either from settlement or in terms of getting to trial — can differ dramatically depending on where the case is heard. From scheduling to summary judgment odds to likelihood of transfer, it is well-known that different districts approach patent cases very differently. It is also established that the most attractive current district for patent owners is the Western District of Texas, where the Honorable Alan Albright has instituted some plaintiff-friendly measures in patent cases. Perhaps more importantly, by filing cases in the Waco Division of the WDTX, plaintiffs can ensure that Judge Albright will handle their case, an advantage not found in other jurisdictions, especially in those that randomly assign cases using the electronic version of the old SDNY wheel.

One of the key advantages for patent owners in Albright’s court has been his willingness to defer decision on transfer motions. Since sophisticated patent defendants nearly always look to transfer cases — especially out of Texas — to hometown districts, Albright’s refusal to allow such transfer motions to derail progress of the cases before him puts significant pressure on defendants. For one, settlement might start looking more attractive if a defendant faces not only claim construction proceedings (as is typical early on in WDTX cases) but maybe even discovery as well. Not that Albright is the inventor of this approach to handling transfer motions, as his colleagues in the Eastern District of Texas have long been known to take a similar slow-walk approach on the issue. Add in that Texas courts have shown a general unwillingness to transfer cases, unless absolutely forced to, and it is easy to understand why patentees continue to view Texas as a preferred forum for their case filings.

In a recent twist, however, Albright’s practice of refusing to make decisions on pending transfer motions a “top priority” came under withering assault from the Federal Circuit. The underlying procedural facts are straightforward. Netlist, a seasoned patent plaintiff, filed a lawsuit against Korean-semiconductor giant SK hynix in March of last year. In May, SK hynix moved to transfer the case from the WDTX to the Central District of California. Despite SK hynix’s efforts to have the case stayed pending resolution of its motion to transfer, it saw itself barreling rapidly toward a March 2021 Markman hearing. So it filed a petition for mandamus in the Federal Circuit, which was addressed in a February 2 order. An order which excoriated the district court for its “egregious delay and blatant disregard for precedent” by allowing SK hynix’s transfer motion to linger “unnecessarily on the docket while the district court required the parties to proceed ahead with the merits.” As relief, the Federal Circuit ordered the district court to “stay all proceedings concerning the substantive issues in the case until such time that it has issued a ruling on the transfer motion capable of providing meaningful appellate review of the reasons for its decision.”

Because the district court had already set a hearing on the motion to transfer before the Federal Circuit’s order, a decision on the merits of SK hynix’s motion was not long in coming. The day after receiving the Federal Circuit’s order, Albright issued a 17-page decision denying SK hynix’s motion to transfer in its entirety. First, the court rejected SK hynix’s argument on the first-to-file rule compelling transfer to California (where prior cases involving patents from the same family as those asserted in Texas were filed by Netlist), since the patents at issue were related, but not identical to, those that had been previously asserted. Moreover, the earlier California actions in question had been stayed pending IPR decisions, with no Markman or trial dates set, in contrast to the substantive progress towards decision on the merits that had already taken place on Albright’s watch. Likewise, the court refused to transfer the case for convenience purposes, crediting the local interest in resolving disputes and the quicker time to resolution by having the case stay in Texas. Finally, the court rejected SK hynix’s request to at least transfer the case from Waco to Austin, since the Waco courthouse remains open while Austin’s is closed due to COVID-19.

In addition to denying SK hynix’s transfer motion, Albright tightened the vise by accelerating the claim construction schedule — and by setting a July 6 trial date. In response, we can assume that SK hynix will ask for mandamus review of Albright’s decision on the transfer motion, following the lead of companies like Apple, which won a hotly contested mandamus motion of its own on transfer back in November. The battle lines are clear. The Federal Circuit has indicated a concern for fair treatment of defendants in the WDTX, while Albright continues to push for the expeditious handling of patent cases on the merits. We can expect that defendants will continue to push to get out of Texas at every opportunity. For now, however, Texas is holding ’em whenever it can.

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.


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.

A Couple Of Companies Get Popped For Infringing On This Football Brand’s Trademarks

(Image via Shutterstock)

Pop Warner, the popular brand known for its involvement with football competitions for 5- to 16-year-olds, is beginning to get very aggressive with enforcing its intellectual property rights. In the past couple of weeks, Pop Warner Little Scholars, Inc. and Pop Warner Authentic, Inc. have fired off a couple of trademark infringement lawsuits, one against Hanesbrands, Inc. and the other naming BSN Sport, LLC as the defendant.

The case against Hanesbrands, Inc. is pending in the U.S. District Court for the Central District of California and takes the position that the defendant, through its subsidiary brand Champion, has been offering merchandise using the Pop Warner word mark without a valid license in place. Hanesbrands, Inc. is also accused of unlawfully using the word mark to advertise football uniforms and for improper search engine optimization by including Pop Warner in the title of its paid advertisements on Google.

The plaintiffs claim that Hanesbrands, Inc.’s products are substantially similar in style and substance to those sold and licensed by the plaintiffs and that this is clear misappropriation of plaintiffs’ “brand of academic and athletic excellence.”

The case against BSN Sport, LLC is pending in the same federal district court but is based on a claim that BSN continued to use rights that it once had, beyond the term of an expired agreement. BSN Sport was once a licensee of the Pop Warner brand but, according to the complaint, the rights afforded to BSN in the licensing agreement expired on December 31, 2016. However, BSN’s website, as recently as the end of December 2020, was offering merchandise using Pop Warner’s word and design marks.

The biggest question in both cases will likely revolve around whether the use by each defendant is a trademark use or merely describing the products for sale. If Hanesbrands, Inc. was actively placing the Pop Warner marks on the clothing that it manufactures and sells, without consent, then a consumer may be likely to falsely believe an association or endorsement with the Pop Warner brand. Alternatively, if it, or BSN Sport, is merely describing uniforms intended for use with Pop Warner events, and the consumer is not likely to be confused as to Pop Warner’s association, then there may be an appropriate defense on such grounds.

For instance, the exemplar attached by the plaintiffs in the BSN Sports complaint does clearly indicate that the uniforms are by a separate company. That said, the same exemplar demonstrates that BSN Sports is advertising that Pop Warner has partnered with BSN Sports to serve as the official distributor of Pop Warner football uniforms, which appears to be a false advertisement if, in fact, their official relationship ended at the close of 2016. Either way, each company has a federal lawsuit that it must now defend against based on use of another brand’s registered trademarks without consent.


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.

Federal Court Confirms That Dan Bongino Is A Total Loser, Orders Fees In Daily Beast SLAPP Suit

POP QUIZ:

If the judge grants Defendant’s motion to dismiss, which side won the case?

Do you need more time? Or perhaps remedial CivPro?

Here on Planet Earth, the Defendant is the prevailing party. Yes, even if the Plaintiff “voluntarily” dismisses the case during the 14 days allotted for him to file an appeal, before the trial judge enters a “final order.”

For extra credit, can you guess which razzledazzle libelslander lawyer actually filed a motion claiming that his client had deprived the court of subject matter jurisdiction by dismissing his suit before a final judgment was entered?

Obviously it’s Devin Nunes’s favorite Earthlink lawyer Steven Biss, best known for suing a Twitter cow, with a local assist from Roger Stone’s attorney Robert Buschel. Last year, these two legal eagles sued the Daily Beast on behalf of rightwing “personality” Dan Bongino, who had been cruelly defamed by a story about the end of his business relationship with NRATV (RIP) and needed $15,000,000 to make him whole again.

Or perhaps not. On August 6, U.S. District Judge Jose Martinez granted the Beast’s Motion to Dismiss for filing a case that was procedurally and factually defective in every respect. And worse still, the court awarded the Beast attorneys’ fees for having to defend itself against such a bullshit SLAPP suit.

Not so fast, argued Biss and Buschel. Bongino had until August 20 to file an appeal, but instead he filed a motion to dismiss the case on August 10 so bingo bango bongo, actually there was no winner here and the court should just butt right out.

If we hadn’t seen it with our own eyes:

The Court has no subject matter jurisdiction to consider Defendant’s motion. On August 6, 2020, the Court entered an Order granting Defendant’s motion to dismiss with leave to amend and “prospectively” granting Defendant’s motion to recover costs and fees under Florida’s anti-SLAPP statute “fees based on Plaintiff’s initial Complaint.” Because the Court permitted Plaintiff an opportunity to amend, the Court held off on a final ruling on the matter. [ECF No. 23]. On August 10, 2020, Plaintiff timely filed notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. On August 11, 2020, the Court entered a Final Order of Dismissal and closed the case. Plaintiff had an “absolute” right to voluntarily dismiss the case pursuant to Rule 41(a)(1)(A)(i), which he exercised prior to the Court’s final ruling on Defendant’s motion to recover fees under Florida’s anti-SLAPP law. Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (“a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.”). The District Court was divested of subject matter jurisdiction upon Plaintiff’s filing of the notice of voluntary dismissal.

That … did not go over.

“Plaintiff relies on a single case from 1963, American Cyanamid Company v. McGhee,” notes U.S. Magistrate Judge Shaniek M. Maynard, before going on to cite several cases in the past 57 years which “mak[e] clear that a court can award attorneys’ fees even after a case has been voluntarily dismissed.” Her Honor was no more impressed with the contention that Bongino had somehow fought the Beast to a draw.

“It is of no moment that Judge Martinez granted Defendant’s Motion to Dismiss without prejudice, because when a district court dismisses an action against a defendant, even if that dismissal is without prejudice, the defendant is the prevailing party,” she wrote. “Accordingly, Defendant is the prevailing party in this case and entitled to fees.”

Yeah, no shit.

So Bongino is on the hook for $31,835.00, which is a ridiculously low figure for 91 hours of labor from Davis Wright Tremaine LLP. But even with the bath he’s taking on his investment in Parler, the guy’s posts are routinely in top ten performers on Facebook and he’s got a gazillion listeners for his podcast, so he can afford it.

Ah, well. Sometimes you own the libs, sometimes the libs own you.

Bongino v. Daily Beast Company, LLC [Docket via Court Listener]


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

Why hospitals want CMS, FTC to examine two UnitedHealthcare policies – MedCity News

Two UnitedHealthcare policies are raising concerns among healthcare providers, and the country’s most prominent hospital association wants the government to investigate them.

The American Hospital Association is asking two federal agencies to examine what the association deems is UnitedHealthcare’s anticompetitive conduct as well as payer policies that could block access to care.

But the payer says it plans to take action to alleviate some of the burdens hospitals worry will arise from the policies.

Last week, the hospital association sent a letter to Elizabeth Richter, acting administrator of the Centers for Medicare & Medicaid Services. In it, the association details its concerns about two UnitedHealthcare policies — one that the insurer is planning to implement in 2021 and another that took effect last year.

The first is the payer’s Designated Diagnostic Provider program, which would require outpatient laboratory services to be provided by freestanding and outpatient hospital laboratories that meet certain quality and efficiency criteria, said Tracey Lempner, director of communications at UnitedHealthcare, in an email.

The program, to be implemented July 1, does not apply to lab services provided as part of an inpatient visit or emergency services, Lempner explained further in a phone interview. In addition, it is only applicable to commercial health plans.

“The new benefit designs provide our members with access to quality, efficient care while helping to protect them from higher lab costs,” she said.

But this new program will cause “substantial confusion” for patients about which labs are covered by their health plan, and could result in surprise medical bills, the American Hospital Association said in its letter to CMS’ acting administrator.

If a patient receives services from a non-designated laboratory, UnitedHealthcare can deny coverage and the patient will be responsible for payment.

“In short, the DDP program is attempting to redefine the concept of an ‘in-network’ provider and limit patient access to a much smaller pool of laboratory service providers,” the letter states.

But the payer has plans to help combat the above issues. UnitedHealthcare will educate its members and providers on the new program and offer information on how to identify a designated diagnostic provider, Lempner said.

Further, patients billed for lab services performed by a non-designated entity without their knowledge will be able to appeal the decision.

The potential to limit patient access and give rise to surprise bills aren’t the American Hospital Association’s only issues with the program.

In a letter sent last week to Rebecca Slaughter, acting chairwoman of the Federal Trade Commission, the association said that the program was an example of anticompetitive conduct.

Describing the Designated Diagnostic Provider program as “a bait and switch coverage policy,” the association reiterated the arguments it made in the letter to CMS’ Richter.

“While the AHA supports the provision of safe and efficient care, the DDP program threatens network adequacy, creates the likelihood of confusion for consumers seeking care, and improperly changes UnitedHealthcare’s agreements with enrollees and provider,” the letter states.

The association urged the FTC to put aside its planned retrospective study of mergers between physician groups and healthcare facilities, and instead, focus on these types of anticompetitive behaviors.

The second policy that has providers concerned is related to UnitedHealthcare’s specialty pharmacy coverage.

In the letter to CMS’ Richter, the association said that UnitedHealthcare plans are no longer allowing many providers to buy and store certain drugs per the specialty pharmacy coverage policies.

Instead, the policies require providers to “accept drugs purchased and handled by the health plan, which in turn relies on the OptumRx chain of owned and affiliated specialty pharmacies,” the association said.

The association detailed all the patient care issues this could bring up, from delaying or disrupting drug administration to preventing hospitals from being able to guarantee the safety of drugs firsthand.

Further, under these policies hospitals are no longer responsible for drug purchasing, but will still have to face the consequences of drug shortages, the association said.

But UnitedHealthcare said its specialty pharmacy policies — which went into effect Oct. 1 — will help drive down costs.

“Our data shows that for some outpatient hospitals, the reimbursement rate on some specialty drugs may be over 400% of the reimbursement rate established by CMS for the same drug,” said Trasee Carr, a spokesperson for UnitedHealthcare, in an email. “By requiring outpatient hospitals to source these drugs through an indicated specialty pharmacy, we are driving unnecessary costs out of the healthcare system to help make care more affordable.”

The American Hospital Association has asked Richter to prevent the payer from implementing the diagnostic and specialty pharmacy coverage restrictions for CMS’ insurance products.

Photo: Mykyta Dolmatov, Getty Images

How Can Biden Get More Federal Judges On The Bench? Make Senior Status More Appealing

We should be looking for ways to encourage judges to take senior status. I think maintaining their stature is important. If stature would have been maintained, maybe I would have stayed. I don’t know.

— Former Third Circuit Judge Thomas I. Vanaskie, who briefly took senior status before leaving the bench entirely in 2019, commenting on one of the ways to sweeten the pot for federal judges who are interested in senior status but wind up not taking it. Vanaskie said that allowing senior status judges to participate in en banc rehearings would be a “tremendous inducement” for judges to give up their active status on the bench.


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.