Category: News Feeds

Back in early March, which feels like ancient history at this point, Senator Chuck Schumer appeared at a rally for abortion rights and called out the politicization of the Supreme Court. Mainstream media devoted hours to complaining about Schumer’s “inappropriate” comments and showcasing Trump and John Roberts clucking their tongues over Schumer’s gall. And they struck gold when they could point to Larry Tribe echoing the Chief’s concerns, giving the news a proper bipartisan moment to harp on.

Then the entire world collapsed and everyone promptly forgot about it.

Except the National Legal and Policy Center, who kept laser-focused on the truly important issue of Chuck Schumer saying ouchy words about the integrity of the Supreme Court. It filed a complaint with New York’s Attorney Grievance Committee hoping for some redress. Unfortunately for them, the disciplinary authorities looked at the situation and issued a collective “why are you wasting our time?” in the form of a one-paragraph dismissal.

To recap, Schumer said, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.” There’s some vaguely threatening rhetoric there but in context this was a riff on exactly what Kavanaugh told the United States Senate during his confirmation hearings. One might think that if these words are problematic there’s probably a big ethical problem with a Supreme Court justice using them to describe the legislative branch drafting the laws he’s supposed to interpret, but I digress. Armed with that context, the Grievance Committee offered a tepid nod toward the idea that the comments were “concerning” before ultimately writing the whole thing off as a political dispute, noting that the Republican majority of the Senate could have censured Schumer and even they didn’t think this amounted to anything substantive.

This is where most folks would let this go since this is now beating a horse so dead its glue doesn’t even stick anymore, but the NLPC is still incensed and is appealing. Because they literally can’t find any more egregious ethical lapses in Washington than a Senator complaining about the Supreme Court.

Schumer didn’t suggest that the Supreme Court didn’t have the authority to bind the other branches of government… like some people. Far from prejudicing the administration of justice, Schumer’s complaints presuppose that the Court does wield ultimate judicial authority and that abusing that authority is bad for constitutional order. These comments were so inconsequential that I can’t believe we’re still talking about them at all months after the fact.

But we are because there are some people who have a lot invested in preserving the mythos of the Supreme Court. That’s not the same as preserving the Supreme Court as an institution any more than the Senate’s authority requires the people to swallow the “world’s greatest deliberative body” bromide. Conservatives need the judiciary to be sheltered from political inquiry because otherwise it might undermine the 40-year project to pack it with ideologues.

Even if it means they have to keep pushing this weaksauce ethics complaint like FedSoc Sisyphus.

Earlier: Chuck Schumer Exposes John Roberts With Donald Trump Impersonation

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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.

Earlier this year, I had the chance to interview Tom Livne, the founder and CEO of Verbit. At the time, the legal-tech oriented Verbit had just secured $31 million in Series B funding to continue growing its AI-powered transcription and captioning service, which had already turned into a category-leader in just three years since the company was founded.

When I spoke to Livne in February, Verbit’s story had followed the traditional model of start-up success. Then March came, and the world shut down. But while most industries were in a scramble to deal with the new challenging reality of coronavirus, Verbit suddenly found itself deeply in demand. Like fellow pandemic success story Zoom, Verbit’s live-captioning and quick-turnaround transcription technology are tailor-made for a world where business has moved from the boardroom and courtroom to the webcam and chatroom.

Verbit was doing well before the pandemic, and it is now poised for exponential growth. What’s remarkable is the way it got those extraordinary results wasn’t from a happenstance encounter with Mark Zuckerberg or Tim Cook at a Silicon Valley espresso bar; it was from good old-fashioned business discipline and hard work.

Figuring It All Out

After finishing his service as a former special forces paramedic and paratrooper in the Israeli Defense Force, Livne trained as a lawyer. Livne worked closely with entrepreneurs and told me he quickly realized “I don’t want to be their advisor. I want to be the entrepreneur myself.”

As a junior attorney, Livne found himself frustrated with the slow turnaround time and inaccuracy of traditional court reporting technology. Livne thought of speech-to-text as a natural solution to this problem. But timing is everything, and in 2012, when the idea that became Verbit was born, the time wasn’t right. Speech recognition software simply wasn’t mature enough to significantly replace or supplement traditional court reporters, and Livne himself didn’t have the business skills or experience to bring such an idea to market.

Livne left the law, and one MBA from Yale later found himself working at Leumitech, an Israeli tech banking and investment firm out of Tel Aviv. While there, an engineer approached him with an idea that became AppInsight, a mobile application security tool. Livne told me “it seemed like an opportunity, and I was opportunistic.” He joined AppInsight as a co-founder to help it launch, but he had no personal passion for the project or background in the field. Livne told me that was a mistake. AppInsight found initial funding, but Livne’s co-founder fell ill, and Livne chose to return the investors’ funding rather than press forward on a project he didn’t feel passionate enough about to work on alone.

Livne took away from this first failed attempt at entrepreneurship that passion isn’t just a bonus: it’s a necessity. We spend too many long hours building the companies and teams we lead to not care deeply about what we’re doing.

Verbit Takes Flight

The time was finally right for Verbit. Armed with business training and tech investment connections from his time at Leumitech and AppInsight, Livne had the personal tools to build his start-up. Livne dusted off his old idea for an automated transcription service. “For transcription, I did have that passion, because I had been a frustrated customer.”

By 2017, the tech had finally caught up as well. Speech recognition software remained underdeveloped for Verbit’s purposes, but advances in machine learning and AI meant the software could now train itself over time to get better. Verbit paired its AI speech recognition software with human editors. The AI currently does roughly 90% of the legwork, and the humans correct and edit the remaining 10%. Each round of corrections makes the AI smarter, better, and faster at its part of the job for future transcriptions. While Livne believes human review will always be part of the process, Verbit’s AI will continue to automate more and more of the process as it develops.

Success came rapidly once the prototype was up and running. Initial friends-and-family funding was enough to get a viable product to market and obtain paying customers. While Livne had a background in the legal field, Verbit doesn’t target law firms, which are notoriously slow to adopt new tech. Instead, Verbit targeted court reporters themselves, building out a suite of software to automate their transcription work. Having an actual revenue stream was a game-changer when it came to fundraising: Livne said it changed their pitch to VCs from “why you should invest in us” to “why we should take your money.”

Livne told me in February that education was one of Verbit’s most important verticals, specifically captioning and transcribing web-based teaching. Demand for web-based teaching solutions has grown by orders of magnitude in the COVID-ified world, so those Series B investors (and Livne himself) must be feeling pretty good about their investment right about now.

Lessons Learned

I asked Livne what advice he would give to fellow entrepreneurs or businesspeople, and his “secret sauce” is really no secret. Verbit is the product of time- and battle-tested principles being embraced and executed with precision and dedication.

Correct course quickly. Livne figured out early on that he didn’t want to continue to be a lawyer. Rather than waste years bemoaning getting his law degree and begrudgingly moving up the law firm ladder, Livne figured a new path. Mistakes happen; it’s correcting them that matters.

Find the right problem to solve. When looking for an opportunity or a business idea, “you are looking for a problem with high friction and low efficiency.” Figure out what isn’t being done well, and then figure out a new way to do it. Making others efficient is a great way to build a market.

Try passionately or don’t try at all. If you’re not passionate about what you’re doing, you’re not going to get it done. Find something you care so much about that you’ll devote the hundreds of hours it takes to get an idea off the ground. Even great ideas perfectly executed will experience failure and roadblocks, and passion is what will see you through.

Timing is everything. The best idea in the world won’t survive bad timing. Striking too soon or too late can be equally fatal. Move intelligently and with commitment.

Teams matter more than anything. You need people with the right background, who are committed to the problem you’re trying to solve, and who have the resilience to deal with setbacks. “It’s all about the people you hire, surround yourself with, and learn from.”

None of this advice is revolutionary. We’ve all heard these chestnuts before, but it’s good to be reminded from time to time that the reason we’ve heard them before is because they work. Whether in building a tech start-up, growing a law firm, or building out an individual attorney’s book of business, good ideas, dedication, team-building, and execution matter more than anything.

Get those right, and the opportunities will come.

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James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Four p.m. on August 6 passed, and the window for National Football League players to opt out of the 2020 regular season because of COVID-19 concerns was closed. A total of 66 players believed that they were putting their health and safety above enhanced economic security, making an irrevocable choice to sit out of the league year as many wonder whether a full season will even be played.

Sixty-six players opting out may not seem like a large number at first glance. However, considering that there are 53 active players for each team in every game and 32 NFL teams, the opt outs account for roughly 4% of the league. The total number of opt outs was also likely diminished due to the small timeframe that players had to come to an incredibly important decision on whether they would suit up for the 2020 NFL season.

Detroit Lions linebacker Jamie Collins clearly stated that the players needed more time to make a determination. He believes that the deadline day will not mean anything, because there will still be problems down the road and, if the virus affects someone close to a player, the player will want to opt out. Collins is technically correct. A player may still opt out after the deadline if a close family member gets seriously sick with COVID-19 or if the player is newly diagnosed with a high-risk condition.

It is clear that specific position players and their families were more concerned about their potential for contracting the coronavirus and suffering its effects than others. Twenty of the 66 players who opted out are listed as offensive linemen, and 11 of them play on the defensive line. These individuals line up right in front of each other, in very close proximity to their own teammates, with heavy breathing, sweating, and spitting all givens during every game and practice. Many of these players also weigh over 300 pounds, putting them in a high-risk category for a number of ailments that health experts encourage people to avoid and which could predispose them to COVID-19 and its sometimes terrible effects. The vast majority of the athletes that fall into this category are still preparing to participate during the 2020 NFL season.

The true challenge for the league will be what comes next. On August 6, the Miami Dolphins added six players to its COVID-19 list, which means that, as of today’s date, a total of 14 Dolphins players have at one point been placed on the list since the league began requiring testing of players in late July. Being placed on the list does not necessarily mean that a player has contracted coronavirus; merely being in close contact with a teammate who has tested positive could cause a player to land on the list. However, if players find themselves on the COVID-19 list during the regular season, then it could cause significant roster changes on a week-by-week basis, affecting competitive balance even more than the existing influence of 66 players opting out of the season by the August 6 deadline (eight of the 66 players are signed to the New England Patriots).

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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.

A whistleblower lawsuit accuses Cigna of receiving “billions” in overpayments for its Medicare Advantage plans. The amended complaint, filed by the Department of Justice in the U.S. District Court for the Southern District of New York a year ago, was unsealed on Wednesday.

A former service provider for Cigna’s Medicare Advantage subsidiary alleged that the company sent providers to patients’ homes to conduct a health assessment, which was then improperly submitted to the Centers for Medicare and Medicaid Services for risk adjustment. The whistleblower was a former officer for Texas Health Management, a now-defunct company that worked with Cigna-Healthspring between 2012 and 2017.

Cigna acquired HealthSpring in 2012, and currently offers Medicare Advantage plans in 17 states under this brand.

Commercial insurers who offer Medicare Advantage plans receive a monthly capitated rate from CMS for each of their covered members, which they use to cover the cost of care. For older and sicker patients — who have higher risk scores — they receive a higher rate.

A patient’s risk score is based on diagnoses assigned to the patient in the prior year. To be submitted, a patient must have had a face-to-face encounter with a provider, and the patient must be cared for or assessed.

According to the plaintiff, Cigna ran an assessment program that sent nurses and nurse-practitioners to patients’ homes, where they were expected to see 35 patients per week and generate 20 or more diagnoses per visit. They were reportedly not allowed to provide care, prescribe medications or make referrals to specialists.

The complaint described the program as “…a  data-gathering exercise used to improperly record lucrative diagnoses to fraudulently raise risk cores and increase payments from CMS.”

According to court documents, Cigna-HealthSpring used analytics to sort members into different priority categories based on their medical histories. The company also reportedly sought to recruit primary care physicians to complete the assessments, at one point offering a $150 bonus per completed exam to provider who performed a certain volume of assessments each year

The Department of Justice decided not to intervene in the case in February. Specifically, the government declined to claim that Cigna violated the False Claims Act by conducting nurse home visits that did not involve providing medical treatment.

Cigna did not respond to requests for comment at the time of publication.

This isn’t the first time a Medicare Advantage plan has come under scrutiny for payments.

Last year, the Office of Inspector General reviewed “billions” in estimated Medicare Advantage payments that raised concerns. Looking at 2016 encounter data, the OIG found that Medicare Advantage Organizations almost always used chart reviews to add diagnoses, and that diagnoses reported only on chart reviews — without any service records — resulted in roughly $6.7 billion in risk-adjusted payments for 2017.

Of that, an estimated $2.7 billion in payments were based on diagnoses that did not link to a specific service provided to the member.

Photo credit: zimmytws, Getty Images

* President Trump’s former attorney Michael Cohen apparently has a job offer to be a political consultant after he is released from jail. Seems like he landed on his feet after being disbarred. [SF Gate]

* A federal court has dismissed a lawsuit aimed at tossing the new proxy voting system adopted by the House of Representative amid COVID-19 concerns. [USA Today]

* Simon Property Group, one of the nation’s largest shopping center landlords, has filed claims against the Gap for allegedly “taking opportunistic advantage” of the COVID-19 pandemic to avoid paying rent. [Bloomberg]

* The New York Attorney General is suing to have the National Rifle Association dissolved because of allegedly fraudulent practices. [New York Times]

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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.

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

Which T-14 law school has changed its stance on in-person instruction, announcing on July 29th the law school would be full online after previously announcing there would be at least some in-person classes?

Hint: The law school also announced a 5 percent tuition cut as a one-time adjustment for those negatively impacted by the pandemic.

See the answer on the next page.

For 16 months, President Trump has fought tooth and nail to prevent Congress or the Manhattan D.A.’s office from knowing more about his finances than he does. And, in spite of the fact that he and his crack legal team haven’t been able to put together even a hint of a colorably constitutional argument as to why he should be the only person in the country not subject to the subpoena powers of lawmakers and law enforcers, it’s worked: Trump’s tax returns remain hidden from view—for now—as do his financial records from, among others, Deutsche Bank.

Imagine working with teenagers all day and thinking you could threaten them into keeping quiet. That you could simply shout “There will be consequences!” into the PA system, and kids would just stay off social media and stop telling the world about the spectacular debacle of their school reopening in the middle of a pandemic. That you could open a 2000-student school, after multiple students and faculty have already tested positive for COVID-19, and no one would ever find out about it.

Spoiler Alert: They found out.

After photos of crowded halls packed with unmasked teenagers at Spaulding High in Griffin, Georgia went viral this week, Paulding County Schools Superintendent Brian Otott defended his district’s decision to re-open as Georgia’s infection rate spikes.

The halls aren’t usually so crowded as all that, Otott told the Washington Post, and then bizarrely claimed that the risk clock only started ticking after “being within 6 feet of a sick person with COVID-19 for about 15 minutes.”

He also defended his decision not to require masks for students.

“Wearing a mask is a personal choice, and there is no practical way to enforce a mandate to wear them,” he told the Post. “What we will do is continue to strongly encourage all students and staff to wear masks.”

That strong encouragement is convincing about a third of the students to make the personal choice to wear a mask, according to 15-year-old Paulding High student Hannah Watters.

Which is… not encouraging.

This is not an approach the school takes when it comes to dress code, though. Apparently the length of skirts worn by students in the district is not a personal choice, and it can be enforced. The school requires that skirt hems extend no less than “3” from the top of the kneecap as measured by a ruler or the length of a 3 x 5 index card” and even goes so far as to specify the maximum rise of a skirt’s slit.

Any girl who has been forced to kneel on the floor for a skirt check or spend the day in an extra-large T-shirt from the Lost and Found will remember the humiliation forever. But safeguarding the tender eyes of her fellow students is an academic priority, not a “personal choice.” Unlike, say, slowing the spread of a virus during a deadly pandemic.

And speaking of slowing the spread, Superintendent Chalmers Otott has hit upon a brilliant plan to quash online criticism of his school.

There will be consequences!

In fact, there already have been consequences. As BuzzFeed reports, Hannah Watters was suspended for five days because she violated the school’s policy on phones in schools and posting images of other students without their permission.

And while students do surrender some of their First Amendment rights at the school door, the school can’t violate its own policies just to suppress criticism and hide what’s going on in its halls.

“I think my punishment’s severity was excessive, but I do understand that I violated a code of conduct policy,” Watters told BuzzFeed reporter Lauren Strapagiel. “We have a progressive discipline system. When disciplining me and the other student, they skipped level one and went straight to two.”

Watters told BuzzFeed that she and her family plan to fight the suspension.

Viral photo of crowded Georgia high school hallway lacks context, superintendent says [Washington Post]
A Georgia High School Suspended Two Students For Posting Photos Of Crowded Hallways [BuzzFeed]

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

I know that I am dealing with some form of low-grade depression. Not just because of the quarantine, but because of the racial strife, and just seeing this administration, watching the hypocrisy of it, day in and day out, is dispiriting. …

I’d be remiss to say that part of this depression is also a result of what we’re seeing in terms of the protests, the continued racial unrest, that has plagued this country since its birth. I have to say that waking up to the news, waking up to how this administration has or has not responded, waking up to yet another story of a Black man or a Black person somehow being dehumanized, or hurt or killed, or falsely accused of something, it is exhausting. And it has led to a weight that I haven’t felt in my life, in a while.

— Former First Lady Michelle Obama, in comments given during “The Michelle Obama Podcast” on Spotify, where she discussed how the pandemic, political dissension, and racial injustice in America have affected her. Obama previously discussed similar feelings in her memoir, Becoming, when she told the world how much she hated being a lawyer, referring to document production as being “deadly.”

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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.