Category: News Feeds

Since the Supreme Court moved into its own building in 1935, when was the first time they closed their doors and sat elsewhere as a Court?

Hint: The Court heard oral arguments at a nearby federal courthouse during this time.

See the answer on the next page.

Joe chats with Joey Seeber and Leigh Vickery of Level 2 Legal Solutions about taking a small, boutique approach to large legal department and Biglaw problems. Legal work goes on during a lockdown, and Level 2 is busy assisting its long-term partners in getting stuff done. It takes creative problem solving and a nimble business culture to thrive in times like these.

With the news today terribly focused on death, it is refreshing to focus on life, if just for a minute. The State of New York, which has been plagued by the horror that is COVID-19, has given us a brief respite from darkness as it has just legalized paid gestational surrogacy. As a result, individuals and couples can enter into agreements with surrogates who will become pregnant and birth babies on their behalf. Commercial gestational surrogacy is when a  woman is paid to become pregnant and birth a child to whom she is not biologically related.

This legislation is significant because, prior to its passing, hopeful New York parents were compelled to retain surrogates in other states or countries. This resulted in tremendous cost and difficulty for individuals who would often have to fly to doctor appointments and rely on video conferencing to interface with surrogates, lawyers, and doctors. Considering New York’s general political and legal progressiveness, the ban on surrogacy was confusing, if not disappointing.

The bill, known as the Child-Parent Security Act, was passed as part of the New York State 2020-21 budget. The legislation was proposed years ago by Manhattan State Senator Brad Holyman and Westchester Assembly Member Amy Paulin. New York residents can enter into paid surrogacy contracts beginning  February 15, 2021. The new legislation ended a 28-year ban on commercial surrogacy whose law forbade New York state residents from entering into paid surrogacy contracts. Punishments included a fine of up to $10,000 and even felony charges against any individual or agency involved in the surrogacy.

There was opposition to the instant bill as some felt that the surrogates and egg donors were not sufficiently protected. The passed bill does include  certain protections for the surrogate, including detailing the surrogate’s right to make her health  decisions throughout the pregnancy. The parents in the surrogacy arrangement must pay for the surrogate’s legal counsel and health and life insurance during the pregnancy and for one year following the birth of the child.

The LGBTQ community celebrated the news along with individuals and families who suffer from infertility, including many cancer survivors. Arizona and Michigan remain the two states where surrogacy arrangements are not permitted. In passing the budget, the New York State Assembly also banned hydrofracking, plastic foam containers, and flavored vaping, in addition to enacting other legislation. Also significant during the COVID-19 crisis is the Emergency Disaster Treatment Protection Act, which provides limited immunity for healthcare facilities, administrators, and workers from civil or criminal liability during the COVID-19  epidemic.

Gov. Andrew Cuomo supported the bill, and he was praised for his efforts by many, including several celebrities, including Bravo Network’s Andy Cohen, who fathered a child via a California surrogate and who is currently recovering from COVID-19. Cuomo and the State of New York have given us a glimmer of hope as we continue to pray for and think of those suffering from COVID-19. The late and great Nobel laureate and Holocaust survivor, Elie Weisel, who himself lived unimaginable darkness stated: “Just as despair can come to one only from other human beings, hope, too, can be given to one only by other human beings.” During this epidemic and with the passage of the Child-Parent Security Act, those words eerily ring true. As we physically detach from one another, we also understand that to get through these troubling times and proceed into the future, we need our friends, families, and, for many, our surrogates.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

One of the hats I’ve worn in my career is that of an educator. Whether it was training new attorneys and paralegals, teaching academic classes, or just coaching someone in a current or future role, I’ve been teaching for decades.

And I’ve spent the better part of the past 10 years working to convince law school and paralegal school leaders -– frankly, anyone who’d listen — that online education (aka distance learning) is the future. It’s the big disrupter that the education business needs. Now, with the unprecedented COVID-19 virus, it seems that all of the schools in the world, from K-12 to undergrad and graduate ones, have transitioned online inside the course of a few weeks. Amazing!

But a viral outbreak should not be the reason we finally and fully embrace online education. Sure, it’s convenient right now. In fact, it’s downright safe. But what happens when the virus fades? Will educational institutions return to the status quo?

For the uninformed, distance learning has been around forever. It originated hundreds of years ago with correspondence courses in which instructors sent assignments and received student submissions by mail. Fast-forward to the 1920s and Penn State was offering content on the radio. In the 1960s, ’70s, and ’80s, we saw a lot of fairly crude intranets pop up in academia that enabled professors and students to collaborate using phone lines. Then, in the late 1980s and ’90s, AOL and CompuServe provided portals to online learning. Since then, the internet has really become a rich source for online learning. Why then have we not embraced it more fully?

The truth is that we have, and it has been growing, but it has been a slow growth. Today, over 95% of schools use some form of online learning, even if it’s a single course. And obviously, the big online schools offer elaborate degree programs. But not everyone is onboard.

While it’s possible not every college course can be taught online (I can’t think of one), what is clear is that there are distinct advantages to learning online. First, for those who are truly looking to learn something, it provides unparalleled opportunity to focus without distractions. There’s something about the ability to take in a lecture, complete a reading, or write a paper in the peace and quite of a comfortable location. I personally discovered — unfortunately, later in life — that I absorb instruction better and learn a great deal more from online classes.

Second, there’s none of the social pressures and distractions that young people put largely on themselves during campus life. I mean, let’s face it, some of us couldn’t wait to go away to school or get away from our parents or escape our neighborhoods. For many, it is the first opportunity to think and act independent of our home environments. But if you think about your 18-year-old self, how comfortable are you today with the judgment that you were old enough, mature enough, emotionally intelligent enough to effectively live on your own at that age (even if the bills were being paid by someone else)? Maybe some are, but definitely not all.

Next, online education is, frankly, more convenient. People who work for a living don’t have the time or the resources to juggle school and work or go from work to a college campus. If you’re a working professional looking to get ahead, online education is a no-brainer. And think about the disenfranchised and the less fortunate. Notwithstanding some of the predatory lending and fraudulent schools, for many people, online education has opened up real opportunities.

And finally, there’s the cost — and this is the killer. ATL readers in particular will appreciate this point. You see, the dirty little secret is that education has become big business. I’m pretty sure that it was not originally intended to be a commercial enterprise. Indeed, I can recall a time when the path to becoming a lawyer — and many other professions — was not through the hallowed halls of academia. You would clerk with or basically intern for a practicing attorney for a few years, learn the profession, and then you could seek admission to the bar. Obviously, there was more to it than that. But it certainly did not cost hundreds of thousands of dollars; that’s for sure.

And the question of why higher education costs so much today should be discussed if not outright disrupted. To be fair, I’m not sure that entirely free college for all is economically feasible, either; but the conversation should be had. I was talking with a colleague about the cost of college today, and we concluded that one reason college has become so expensive is the administrative bloat that has been created to support these institutions.

Online education removes a lot of bloat. It also eliminates the expense of brick-and-mortar real estate, which I have no doubt is also a large line item in any school budget. A virtual classroom today is no different from an in-person classroom. There’s an instructor, students, and a blackboard or screen-sharing feature. We can do online almost everything an on-campus professor can do. So, is there really any need for a college campus anymore?

Colleges across the country have sent students and faculty home and suddenly embraced online education. I don’t know what will happen once this virus subsides. But I do know that if the one good thing could come of the coronavirus it is that academic leaders and school administrators could finally wrap their arms and their minds around a proven academic model that frankly works better for all involved.

I’ve always been a glass-is-half-full kind of guy.

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Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

Martin Shkreli may be an absolute POS, but he’s not an idiot.

He’s watched Rod Blagojevich sweet talk himself into a presidential pardon via Fox News. He’s seen the Trump administration grasping wildly for something, anything that might let them walk out of this nightmare as the “heroes” who saved America, rather than the incompetent lunatics who botched the pandemic response and got hundreds of thousands of people killed. And he knows that Americans are easy prey for a snake oil salesman promising a miracle cure after decades of being told that every ailment could be solved using THIS ONE WEIRD TRICK THEY DON’T WANT YOU TO KNOW.

And so he’s “authored” a new paper from his cell at Allenwood Federal Correctional Complex with his business partner Kevin Mulleady and several other “citizen scientists.” Published in the, um, vaunted annals of ProsperoPharma.com, Shkreli and his co-authors purport to have used computers — and their own prodigious brains — to zero in on the likeliest treatment for coronavirus.

Using a custom HPC cluster provisioned with Autodock Vina, we screened 130,778 compounds in parallel batches for ability to bind to 2019-nCoV RdRp (nsp12). Our pre-selected screening library was sourced from the ZINC15 public access database[7], with the majority of candidates having drug-like properties according to Lipinski’s Rule of Five.

Being simple country lawyers, we have absolutely no idea what any of those words mean. But STAT News, which broke the story, writes that “Shkreli’s work is ‘not crazy, but neither is it particularly groundbreaking, either, at least to my eyes,’ said Derek Lowe, a medicinal chemist employed by a pharmaceutical company and a well-known drug industry blogger.”

Nevertheless, Shkreli is marketing himself as the “I Alone Can Fix It” Man for our troubled time.

The industry response to COVID-19 is inadequate. All biopharmaceutical companies should be responding with all resources to combat this health emergency. Donations from these very valuable companies do not go far enough. The biopharmaceutical industry has a large braintrust of talent that is not working on this problem as companies have deprioritized or even abandoned infectious disease research. Medicinal chemists, structural biologists, enzymologists and assay development and research biology departments at EVERY pharmaceutical company should be put to work until COVID-19 is no more. I am asking for a brief furlough (3 months) to assist in research work on COVID-19.

UH HUH. Shkreli, who has no medical or science training, started a company whose entire business model was a “your money or your life” stick up scheme based on jacking up the price of off-patent medicines that patients needed to survive. He famously hiked the price of Daraprim, an anti-malarial drug (hey, wait a minute …) by 5,000 percent. But please, tell us more about those greedy pharma guys trying to profiteer off the coronavirus pandemic.

I am asking for a brief furlough (3 months) to assist in research work on COVID-19. Being released to the post-COVID world is no solace to even the incarcerated. As a successful two-time biopharma entrepreneur, having purchased multiple companies, invented multiple new drug candidates, filed numerous INDs and clinical trial applications, I am one of the few executives experienced in ALL aspects of drug development from molecule creation and hypothesis generation, to preclinical assessments and clinical trial design/target engagement demonstration, and manufacturing/synthesis and global logistics and deployment of medicines.

Smart! Don’t try this sh*t with a real judge, who’ll just laugh you out of court. Put it out in a “scientific paper” with a bunch of charts and graphs pitching yourself as a disrupter uniquely placed to crack this disease wide open. All it takes is getting it to the right people, maybe Sean Hannity or Rudy Giuliani, and then Bill Barr will be springing the Pharma Bro in no time. For the good of the country.

Oh, it’s funny, ‘cuz it’s true.

In silico screening for potential COVID-19 beta-coronavirus non-nucleoside RdRp inhibitors [ProsperoPharma.com]
Martin Shkreli is trying to use the coronavirus pandemic to get out of prison [STATNews]

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

This is certainly not how I expected to be celebrating becoming a Skadden partner. That being said, we are adapting to the new normal. The traditional toasts have been replaced by online video chats and virtual congratulations, but it has certainly been a memorable experience.

— Tracey Chenoweth, a member of the banking practice group at Skadden, commenting on her ascension to the firm’s partnership during the COVID-19 pandemic. Earlier this month, the firm announced its new partnership class: Chenoweth, Dohyun Kim (M&A), and Jennifer Permesly (international arbitration) in New York; David Clark (M&A) and Marcie Lape (litigation) in Chicago; Paul Schockett (tax) and Julia York (antitrust/competition) in Washington, D.C.; Peter Mair (real estate) and Virginia Milstead (litigation) in Los Angeles; Shu Du (China corporate) in Hong Kong; Andrew Good (white collar crime/government enforcement) in London; Ken Kumayama (IP) in Palo Alto; and Jenness Parker (litigation) in Wilmington, Delaware. Congratulations!

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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.

On Friday, the federal government’s small-business rescue loan program began. Bank of America got $22 billion in applications. For its part, JPMorgan Chase had already approved some $25 billion in credit extensions last month.

Wells Fargo, which is famous for sharing its limited wealth with the needy, opened its small-business loan portal on Saturday—and all but closed it yesterday.

“While we are actively working to create balance sheet capacity to lend, we are limited in our ongoing ability to use our strong capital and liquidity position to extend additional credit,” Chief Executive Charlie Scharf said in a statement…. The San Francisco-based lender said it has likely reached its $10 billion limit based on the applications it has already received, and will prioritize giving loans to non-profits and businesses with fewer than 50 employees.

Included among the undisputed heroes of the COVID-19 lockdown are the dedicated employees of Amazon. Without their dedicated work keeping deliveries going, brick-and-mortar stores would be more crowded, as more of us would have to venture out for essentials. Having taken an Amazon factory tour this past summer (highly recommended if we ever get to be around other people in groups again), I can vouch for the complexity of Amazon’s delivery operations, based on my viewing of just a small part of that complex web firsthand. With all the technological wizardry I encountered in the warehouse, from the scanners to the conveyor belts to the robots, not one package would get delivered without the human employees conducting it all and making sure that the right packages are routed to the right destinations. It seemed to me that most Amazon factory workers had an exciting and stressful job back then. Now, with the added weight of the virus, the stressful aspect must be tuned to max volume. All we can do is be grateful for their efforts.

Amazon is much more than an e-commerce platform, of course. Whether it is Prime Video keeping us entertained (e.g. Fleabag) or Amazon Web Services performing yeoman’s work in giving us the internet we all (desperately, at this point) depend on as we know it, Amazon touches our daily lives in many ways. Even without Alexa listening in on all our Zoom conferences nowadays.

What is true about Amazon generally is also true about Amazon from an IP perspective. I have personally spent much time thinking and writing (for a 2017 example) about Amazon’s potential — and current — role as an IP adjudicator, as well as the increasing importance for IP owners of protecting their brands and IP on Amazon’s platform. While there is always more to say on those topics, it is important to take a step back and realize that there is at least one pending case that may answer one of the key threshold questions about Amazon: Is Amazon putting products into the stream of commerce, or is Amazon itself a stream of commerce?

One of our best hopes for a reasoned formulation of an answer to that question is the 3rd Circuit’s en banc consideration of Oberdorf v. Amazon, where the entire court is considering whether a woman blinded in one eye by a defective dog collar purchased from a third-party seller on Amazon can sue Amazon under products liability claims. The District Court said no, holding that Amazon was not a “seller” under Pennsylvania law, even though the identified third seller, the Furry Gang, has apparently been AWOL for years. The original 3rd Circuit panel reversed, leading to the entire court taking the case en banc, with oral argument taking place in late February. (It is worth a watch, even for those who don’t consider themselves appellate argument groupies, if only for the novelty of seeing an en banc oral argument in action.)

Without forgetting the severity of the plaintiff’s injury, as well as the very real risk to consumers nationwide from defective products purchased on Amazon, the case raises some very interesting questions — about both separation of powers and how best to define Amazon. The former question is straightforward. Should the 3rd Circuit rule on this case, or perhaps certify the question to the Pennsylvania Supreme Court? Or is everyone better off waiting for the state legislature to act? While it seemed that the 3rd Circuit judges may differ on the proper course of action, it was also evident from the oral argument that the court recognized the important role Amazon and other online marketplaces play in the modern consumer economy. Especially with respect to their role as a platform connecting third-party sellers around the world with local consumers. The policy questions are important, and the answers will likely be provided by all three branches of our state and federal governments. Tellingly, even Amazon’s counsel suggested that the true answers must come first from the legislature, where I surmise that Amazon has a (probably nationwide) lobbying effort ready to go to present the company’s position on proposed legislation.

As for how to define Amazon’s role in selling — and therefore its liability for any torts that selling results in — products to customers, the debate before the en banc 3rd Circuit was an intense one. Often more between the judges than between the bench and the lawyers arguing the appeal. On the one hand, everyone agreed that Amazon exerts at least some level of control over third-party sellers, including the right to control pricing as well as in the IP context to police infringement claims. At the same time, it was striking to hear that Amazon was unable in this case to identify the offending third-party seller, even though it went so far as to send an investigator to Nevada to locate it. That fact alone seemed to raise eyebrows with some of the judges, especially those who were taking an expansive view of the level of control Amazon exerts over sellers.

Ultimately, IP owners will have to closely watch this case and others like it, if only because of the importance Amazon and other online marketplaces have gained as shopping destinations for American consumers. By now, sophisticated purchasers on Amazon know the difference between buying products sold by Amazon.com, buying products sold by third-party sellers that are fulfilled by Amazon, and buying products shipped directly by the third-party sellers. Until now, Amazon has taken great care to protect itself from claims arising out of sales by third-parties on its platform. But how long can that continue where there are cases of real harm caused by products sold on the platform? Or when the availability of counterfeit products continues? Yes, we all benefit from the convenience and competition on Amazon — now more than ever. But we also need our courts and lawmakers to provide us clear answers on what Amazon’s legal status is and should be.

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.

That the NCAA is now a multibillion-dollar industry is “no accident. It was planned.” It was planned around a commonsense system of capitalism that has made anyone who is allowed to participate immensely rich. The glaring problem with the NCAA model, however, is on full display in HBO’s recent documentary, The Scheme. The players who create literally all of the wealth are not allowed to participate in what would otherwise be an equally beneficial market. The result is a guaranteed black-market economy similar to how drug-war prohibition laws produce thriving black markets.

The fault with the NCAA is a long-recognized one. In his immensely influential work On Liberty, John Stuart Mill argued “there should exist a general presumption against paternalistic attempts to interfere with an individual’s self-regarding conduct for their own good.” The NCAA goes against this general presumption in every conceivable way by prohibiting adult players from profiting off of their own highly developed or inherent skills, in an already existing multibillion-dollar private market. A market that naturally wants the players to be involved. Just as shoe companies sign apparel and advertising deals with coaches and schools, our existing professional sports organizations already demonstrate these market industries will seek individual players for mutually beneficial contractual deals. The college system is only different because the NCAA structures a system of prohibition against player-involved commerce.

In every sense of the definition, the prohibition against players from participating in these rich legal markets amounts to exploitation. I’ll let attorney and college basketball analyst Jay Bilas explain:

The NCAA states that it protects players from being exploited commercially. Does that ring true to anyone? The NCAA uses the players as billboards for apparel deals and uses their names and likenesses to sell the product, and to sell media-rights deals. The NCAA continues benefiting from this multibillion-dollar business, while the players get only a scholarship, and the only ones exploiting the athletes are the NCAA and the member institutions. When you use a person to make money while at the same time limiting that person from making money, you exploit. Players are certainly not mistreated, but they are exploited.

However, the prohibition and exploitation are also destructive. As the HBO documentary makes clear, the players are worth gigantic amounts of money to private industry. Not allowing players to engage in commerce with legitimate market players and mechanisms such as contract remedies to utilize their undeniable economic value ensures that bad actors will inevitably fill the void. The result is often damaging, with people in jail who were only guilty of trying to facilitate universally beneficial commerce for others.

The lesson of how paternalistic interference in the lives of others can be more damaging than the harms the interference is trying to prevent is too well documented to be excused now. It has become a matter of choice as to whether institutions want to continue with an obviously unintelligible, grossly exploitative and damaging system over an equally obvious universally beneficial one. When it comes to the NCAA, maintaining the exploitation is the most logical factor for entrenchment within their current system. But documentaries like The Scheme gives anyone who cares to look a direct insight into how damaging and destructive the NCAA system is.

Obviously, the NCAA is a private organization and can make its own rules. That fact doesn’t put the NCAA’s structure above scrutiny, however. The amount of mutually beneficial commerce the NCAA is prohibiting should anger everyone. Even more enraging should be our government using its tax dollars to bend the law to enforce the NCAA’s seriously flawed rules. Another obvious point to be made though, is that every NCAA athlete is a grown adult with a unique set of personal skills. Limiting their ability to profit off of those skills confers no offsetting social benefit to anyone, it only ensures a select few others calling themselves a nonprofit have a monopoly on the immensely profitable market.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.