Category: News Feeds

Mitt Romney stated he will support reversing the “McConnell Rule,” claiming that the “historical precedent” is that the Senate can confirm a nominee of their OWN party in an election year but not a nominee of the opposing party. This is, as you might imagine, a complete lie. Who was the last Supreme Court justice confirmed by the opposing party during an election year?

Hint: The seat opened up the year before, but there were some hijinks in the process that ended with the nominee being voted on in an election year.

See the answer on the next page.

You know what’ll put a little pep in an associate’s step when it’s close to 5 p.m.? A special bonus! Hooray!

Elite firms have been falling all over themselves to match the generous Davis Polk scale for COVID appreciation bonuses (a trend that was first started by  Cooley), and one by one, firms like Milbank, Irell, Hueston Hennigan, Sullivan & Cromwell, and Debevoise have opened up their coffers.

Who’s up next to fatten associates’ wallets? Not to be outdone by anyone, the latest firm to show associates the money is Simpson Thacher. We’ve been wondering where you’ve been. Welcome to the party! Simpson will be matching the DPW scale up to the class of 2012, and in a memo (available in full on the next page), the firm praised associates and counsel. “We are immensely grateful for your hard work and perseverance under these trying circumstances,” chairman Bill Dougherty wrote.

Here’s the scale, in case you’ve forgotten:

• Class of 2019: $7,500
• Class of 2018: $10,000
• Class of 2017: $20,000
• Class of 2016: $27,500
• Class of 2015: $32,500
• Class of 2014: $37,000
• Class of 2013: $40,000
• Class of 2012: $40,000

Simpson associates in good standing across the world will receive these special bonuses on October 15. Not to worry, because it’s unlikely the special bonuses will have an impact on year-end bonuses at the firm. (Specifically, Dougherty wrote, “We do not anticipate this special bonus will impact year-end bonus levels, which we expect to be at least consistent with last year’s amounts.”)

Congratulations to everyone at the firm.

P.S. In case you’re wondering where Cravath’s special bonus money is… so are we. Is the prestigious firm planning to come over the top or pull a Kirkland? We suppose we’ll have to wait and see.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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.

Oh, Florida.

Governor Ron DeSantis convened a press conference yesterday to announce that his state was “not going to go down the road that other places have gone.”

What road would that be? Apparently the road to the First Amendment’s right to assemble and engage in constitutionally protected free speech. Speaking at the Polk County Sheriff’s Office, DeSantis announced his intent to pass the “Combating Violence, Disorder and Looting and Law Enforcement Protection Act.”

What does Governor DeSantis have in mind for his constituents?

There’s collective punishment, if “7 or more people are involved in an assembly and cause damage to property or injury to other persons.” Will all seven protesters be liable if only two smash a window? Unclear!

He’d like to immunize drivers who run over protesters “if fleeing for safety from a mob.” Dozens of people have been rammed by cars driven by opponents of racial justice protesters, but now they’ll be able to assert the defense that they were fleeing.

Shouting at people in restaurants? A felony.

Throwing a water bottle at a cop during a protest? Mandatory six month sentence in jail with enhancements for being “an individual from another state.”

And no bail either for anyone charged with participating in a “violent or disorderly assembly.”

DeSantis wants to terminate “state benefits” for anyone “convicted of participating in a violent or disorderly assembly.”

He wants to waive sovereign immunity, but only as to jurisdictions “where the local government is grossly negligent in protecting persons or property.” (Really? Might want to think that one through a little more.)

He’s threatening to withhold “state grants or aid” — i.e. funding for everything from public schools to Medicaid — to municipalities which fail to maintain level funding for their police departments when COVID has decimated county budgets.

And, in the coup de grace, he wants to charge “anyone who organizes or funds a violent or disorderly assembly” with THE RICO. So everyone from a local college student organizing a Black Lives Matter rally to George Soros, whom DeSantis is convinced funds protests, despite exactly zero evidence, is involved in a criminal enterprise to … exercise their first Amendment right of assembly. It just makes too much sense!

Although DeSantis’s surprise announcement seems to have left some of his own party non-plussed.

“I can’t see someone who throws a brick at law enforcement not getting six months without a mandatory minimum,” Sen. Jeff Brandes (R-St. Petersburg) told the Miami Herald. “While I agree we have to support law enforcement 100%, we also have to recognize the right afforded to citizens to peacefully protest.”

But DeSantis was having none of that namby-pamby Constitution stuff.

“If you do it, and you know that a ton of bricks will rain down on you, then I think people will think twice about engaging in this type of conduct,” DeSantis said yesterday.

Harvard Law, Class of 2005, FTW.

DeSantis proposes crackdown on protesters, penalties to cities that ‘defund’ police [Miami Herald]
DeSantis calls for ‘ton of bricks’ penalties on protesters who commit illegal acts [Politico]

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

I don’t know that she said that, or was that written out by Adam Schiff, Schumer, and Pelosi? I would be more inclined to the second. That came out of the wind, it sounds so beautiful … but that sounds like a Schumer deal or maybe Pelosi or shifty Schiff … maybe she did and maybe she didn’t.

— President Donald Trump, casting doubt upon Justice Ruth Bader Ginsburg’s dying wish that she “not be replaced until a new president is installed,” during an interview on “Fox & Friends.” Clara Spera, Ginsburg’s granddaughter, confirmed that her grandmother made the remark shortly before her death Friday evening, as did Ginsburg’s doctor.

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.

Ah, the rehabilitation of Supreme Court front runner Amy Coney Barrett has begun! Even in Above the Law’s own digital pages, there’s a piece written by David Lat that breathlessly touts Coney Barrett’s (and other SCOTUS contenders’) elite pedigree and sparkling personality.

In the subtweet of the blogging world — an uncredited link — Lat references the issues that myself and others have with a potential Justice Coney Barrett:

She’s very conservative and very Catholic, and so liberals and progressives are freaking out over how she might rule as a justice, especially on such precedents as Roe v. Wade (which she is bound to follow as a lower-court judge, but able to revisit as a Supreme Court justice).

But here’s the thing, as I said in my initial article, I don’t care that Coney Barrett is “very Catholic” — that isn’t the problem, it’s her jurisprudence. Not that FedSoc talking points actually pay attention to nuance. Certainly not when crying “religious freedom” can “galvaniz[e] evangelicals and Catholics in midwestern battleground states.”

But if you want more proof her religion isn’t the problem: I don’t even mention the (utterly batshit) point about her membership in the religious group that ACTUALLY inspired The Handmaid’s Tale. Our country is basically on the Gilead Express and it doesn’t get a mention. Also, of note, my very favorite Supreme Court justice is Catholic — Sonia Sotomayor. (And no, it’s not an insult to RBG’s memory, she was great, but progressives don’t have to be a monolith.)

And we should realize in the fawning profile of Coney Barrett zero words are written about the kind of Justice she’d be (but progressives are the ones that are reacting without analysis, ummm, okay). Not about the deeply troubling “life begins at conception” comment or her disregard for precedent or that she doesn’t seem to believe in Miranda rights. But her penchant for winning people over? Yup, that makes the cut.

Nobody cares if your nominee is nice. We care about what her tenure on the Court will look like. At least Lat makes some sort of tacit acknowledgment in the piece that Coney Barrett is being set up to be the Justice that overturns a woman’s right to choose, not that it changes his opinion of Coney Barrett as someone whose “advantages are manifest and manifold.” Because what’s such a minor quibble as a woman’s right to choose in the face of someone so charming!?!?!

Here’s the thing — this is a really, really big deal. It’s not just because as someone with a uterus, it is impossible for me not to oppose the approaching erosion of reproductive freedom. But this is only the tip of the iceberg — one the right has been priming the public for since Coney Barrett was one year old. There will surely be other marginalized groups that see their hard won rights take a hit as a very particular sort of conservative philosophy keeps tightening its grip on American jurisprudence. You shouldn’t need your own rights on the chopping block to see the problem with empowering this jurisprudence.

And it’s not just progressives that see a dangerous trend. Eric Posner and Lee Epstein recently made this argument in the New York Times:

The religious right has made no secret of its expectation that President Trump will choose a socially conservative successor to the seat held by Ruth Bader Ginsburg. And the president will likely deliver, further confirming the power of the religious right.

The conservative legal movement, which at one time was libertarian in spirit, has been hijacked by the religious right. This religious version has left a deep mark on the Supreme Court under the leadership of Chief Justice John Roberts.

A potential Justice Coney Barrett — and the 40+ years she could sit on the Court — is so much more than the final nail in the coffin of women’s reproductive freedom.

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).

On Friday, September 18, Justice Ruth Bader Ginsburg passed away at the age of 87, after a valiant battle with pancreatic cancer. She was a legendary litigator for gender equality, an inspiration to countless girls and women, and a “jurist of historic stature,” in the words of her longtime colleague, Chief Justice John Roberts. Her death is a great loss, not just to the Supreme Court and to the legal community, but to our country and to the world.

Over the weekend, on Twitter, I highlighted some of the wonderful tributes and testimonials to Ginsburg. There are so many amazing ones, and I’m sure I missed a good number, but this essay by Nina Totenberg, the renowned Supreme Court correspondent and longtime friend of Ginsburg, is one of my favorites. Linda Greenhouse’s New York Times obituary for RBG is also well worth reading.

As many of us noted on Friday, Ginsburg’s passing also has major implications for the future of the Supreme Court and the November elections. I didn’t want to get into them right away, instead wanting to take at least the weekend to focus on RBG’s extraordinary life and legacy. But now that several days have passed and many legal and political commentators have started exploring what Justice Ginsburg’s death means for the Court, I will join the fray.

Here are my thoughts on the five individuals — all women, pursuant to President Donald Trump’s promise to nominate “a woman, a very talented, very brilliant woman” — who are reportedly under consideration as his Supreme Court nominee.

Amy Coney Barrett: 1-to-1 odds (50 percent)

Age: 48 (born January 28, 1972)
Current role: Judge, Seventh Circuit (since November 2, 2017)
Education: Rhodes College (B.A.), Notre Dame (J.D.)
Clerkship(s): Judge Laurence Silberman (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 55-43
ABA rating: Majority Well Qualified, Minority Qualified

In a Friday night phone call with Senator Mitch McConnell after the news of Ginsburg’s death broke, Trump mentioned just two possible nominees: Judge Barrett and Judge Barbara Lagoa (11th Cir.). Barrett has been on Trump’s radar for quite some time. He interviewed her two years ago, in the summer of 2018, for the Supreme Court nomination that ultimately went to Brett Kavanaugh, even though she had been on the Seventh Circuit for less than a year by that point. And she apparently came very close to getting it.

At the time, I suggested that Barrett should acquire more judicial experience and be nominated for a future vacancy. And I specifically suggested, back in June 2018, that she could be nominated to replace Ginsburg: “There’s no denying that replacing a woman — and historic crusader for women’s rights — with a man, and probably a straight white man at that, isn’t a great look. Better to save Barrett for the future, by which point she will have more judicial experience under her belt.”

It seems that Trump liked that idea. In March 2019, Axios reported that Trump said of Barrett, “I’m saving her for Ginsburg.” And now that time has come.

Trump has wasted no time in meeting with Barrett, who made her way to the White House and met with the president yesterday. According to the New York Times, Trump “spent much of the day with her and later told associates that he liked her, according to people close to the process, who considered her increasingly likely to be the pick.”

(One wonders whether having them spend so much time together was an attempt by Barrett backers to get Trump more comfortable with her. At their prior interview back in 2018, the thrice-married, not-very-religious Manhattan billionaire and the devoutly Catholic, midwestern mother of seven reportedly lacked “chemistry,” concluding their conversation before their allotted time was up.)

What are the advantages of nominating Barrett? Well, how much time do you have?

I could write a whole other post about why she is Trump’s best pick, in terms of someone who would be both a superb nominee, measured in terms of (1) political advantage and (2) confirmability, and a superb justice, measured in terms of (1) brilliance and (2) conservatism (in a Republican administration; replace this with “liberalism,” or maybe “progressivism,” in a Democratic administration). For now, I will simply refer you to this excellent analysis by conservative commentator Sohrab Ahmari, who makes a comprehensive and compelling case for Barrett.

Her advantages are manifest and manifold. It’s easier to talk about her disadvantages — or really her disadvantage, singular. The only area where Barrett doesn’t lead the list of contenders is confirmability. She’s very conservative and very Catholic, and so liberals and progressives are freaking out over how she might rule as a justice, especially on such precedents as Roe v. Wade (which she is bound to follow as a lower-court judge, but able to revisit as a Supreme Court justice). She was confirmed by a vote of 55-43, with just three Democrats — Joe Donnelly, Tim Kaine, and Joe Manchin — crossing the aisle to vote for her. She might not win the votes of Susan Collins and Lisa Murkowski, moderate female Republican senators who favor abortion rights.

But in this highly politicized time, winning Senate confirmation is like passing the bar exam: you just need to do it, and nobody cares about the margin. And the Republicans should have the votes. It’s quite possible that even a senator who has said there shouldn’t be a vote before the election will, if such a vote is called, cast her vote in favor of the nominee, or at least abstain.

(For example, note that the statement by Collins on the Supreme Court vacancy simply expresses her belief that there should not be a Senate vote prior to the election; she does not commit to voting no if such a vote takes place over her objection. And despite her support for Roe, it’s possible that Collins could be won over by Barrett — who seems to win over everyone she meets — just as Collins was won over by then-Judge Kavanaugh.)

Because of Barrett’s credentials and conservatism, combined with the political advantages for Trump in terms of galvanizing evangelicals and Catholics in midwestern battleground states, she is the odds-on favorite.

Barbara Lagoa: 3-to-1 odds (25 percent)

Age: 52 (born November 2, 1967)
Current role: Judge, Eleventh Circuit (since December 6, 2019)
Education: Florida International University (B.A.), Columbia Law School (J.D.)
Clerkship(s): none
Senate vote history: 80-15
ABA rating: Unanimously Well Qualified

Judge Lagoa is less well-known than Barrett, since this is her first time in the SCOTUS spotlight. For an excellent overview of her superb credentials and record, see this op-ed by her fellow Floridian, former Acting Associate Attorney General Jesse Panuccio. (He wrote it in support of her Eleventh Circuit nomination, but the analysis carries over to her SCOTUS candidacy.)

Lagoa’s resume — Columbia Law School, Columbia Law Review, and service as both an assistant U.S. attorney and a state appellate judge, on both the Third District Court of Appeal and the Florida Supreme Court — is very strong. It might not be as dazzling as Barrett’s — Barrett clerked for Justice Antonin Scalia, while Lagoa didn’t clerk at all — but it’s worth noting that the ABA committee on judicial nominees unanimously rated Lagoa “Well Qualified” for the Eleventh Circuit, while rating Barrett “Well Qualified” by a mixed vote.

What might give Lagoa the edge over Barrett? There are two possible factors.

First, Lagoa was confirmed to her current post on the Eleventh Circuit by a vote of 80-15 — an overwhelming margin in these highly partisan times, when superbly qualified judges squeak by with party-line votes — and she was confirmed very recently, less than a year ago (on November 20, 2019). It would be difficult for the Democrats to oppose a nominee who many of them supported just last year.

Second, Lagoa is Latina (Cuban-American) — the first Latina to serve on the Florida Supreme Court — and she is very popular in her home state. Florida is, of course, a big-time battleground state, which Trump carried in 2016, but where Joe Biden now holds a narrow lead in the polls. Nominating Lagoa to the Supreme Court could excite the Cuban-American community, a crucial conservative constituency in Florida, and help Trump take back the Sunshine State.

But in the end, despite being extremely impressive, Lagoa isn’t quite as compelling as Barrett. The political considerations — shoring up conservative support and increasing turnout in midwestern battleground states, versus shoring up conservative support and increasing turnout in Florida — are probably a wash. Lagoa is also slightly older than Barrett, turning 53 in November (while Barrett doesn’t turn 49 until January). So Barrett still has the edge.

Allison Jones Rushing: 9-to-1 odds (10 percent)

Age: 37-38 (born 1982)
Current role: Judge, Fourth Circuit (since March 21, 2019)
Education: Wake Forest (B.A.), Duke Law School (J.D.)
Clerkship(s): Judge Neil Gorsuch (10th Cir.), Judge David Sentelle (D.C. Cir), Justice Clarence Thomas
Senate vote history: 53-44
ABA rating: Majority Qualified, Minority Well Qualified

Judge Rushing has strong support from White House Chief of Staff Mark Meadows, her fellow North Carolinian, as well as social conservatives tied to the Alliance Defending Freedom (ADF), a conservative Christian group she interned for during law school. Like the other contenders, she has excellent credentials, having clerked for not one but two current members of SCOTUS — then-Judge Neil Gorsuch, and Justice Clarence Thomas. Before taking the bench, she was a partner at the high-powered D.C. law firm of Williams & Connolly, where she worked closely with Kannon Shanmugam, a leading Supreme Court advocate (who has himself been mentioned over the years as a possible SCOTUS nominee).

Rushing’s main advantage: she’s 38. Rushing’s main disadvantage: she’s 38.

Rushing also has less judicial experience than Barrett or Lagoa, having served on her current court for less than a year. Barrett has been on the Seventh Circuit for three years as of November, an entirely respectable tenure (and longer than, say, Thomas’ year and a half on the D.C. Circuit). Lagoa has been on the Eleventh Circuit for less than a year, but she has been an appellate judge since 2006, when she was appointed to the state bench.

I’ll say of Rushing what I said of Barrett a few years ago: save her for a future vacancy (maybe that of her former boss, Thomas — although he has made it clear that, rumors notwithstanding, he’s not going anywhere). Nominating her now will give the Democrats too much grist for their mill, including many puns about “rushing” her elevation to the high court.

Joan Larsen: 19-to-1 odds (5 percent)

Age: 51 (born December 1, 1968)
Current role: Judge, Sixth Circuit (since November 2, 2017)
Education: University of Northern Iowa (B.A.), Northwestern Law School (J.D.)
Clerkship(s): Judge David Sentelle (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 60-38
ABA rating: Unanimously Well Qualified

I’m surprised Judge Larsen isn’t getting more buzz in the SCOTUS sweepstakes. She would be a great nominee and a great justice.

First, she has impeccable credentials: she graduated first in her class from Northwestern Law, clerked for Scalia, worked at Sidley Austin, and served in the Justice Department’s prestigious Office of Legal Counsel, before joining the faculty of the University of Michigan Law School. Second, she has ample judicial experience: three years on the Sixth Circuit (she became a judge on the same day as Barrett), preceded by two years on the Michigan Supreme Court. Third, she hails from the battleground state of Michigan, where she is a popular figure, having won her seat on the state’s high court with almost 60 percent of the vote. Fourth, she’d be tough to oppose, having been confirmed to her current seat by a solid margin of 60-38, after the ABA unanimously rated her Well Qualified.

At 51, Larsen isn’t the youngest of the finalists, with Barrett and Rushing as her juniors. But she’s not the oldest either, with Lagoa a year her senior.

Why isn’t she getting more traction? Beats me. But for whatever reason, she’s not in the tippy-top tier of contenders — and with Trump planning to announce a nominee on Friday or Saturday, there’s not much time for her to change that.

Kathryn Comerford Todd: 19-to-1 odds (5 percent)

Age: 44-45 (see her 2004 New York Times wedding announcement, when she was 29)
Current role: Deputy White House Counsel
Education: Cornell University (B.A.), Harvard Law School (J.D.)
Clerkship(s): Judge J. Michael Luttig (4th Cir.), Justice Clarence Thomas
Senate vote history: N/A
ABA rating: N/A

Trump likes familiar faces and prizes loyalty, so one shouldn’t count out Kate Todd, who has served in the White House Counsel’s office since 2019, playing a crucial role in judicial nominations. Like the others on this list, she has a gold-plated resume: Cornell, Harvard Law (magna), a SCOTUS clerkship with Thomas, and partnership at a leading law firm (Wiley Rein).

The challenge for Todd, compared to the four other finalists, is that she isn’t currently a judge. There have been many excellent justices with no prior judicial experience — e.g., Justice Elena Kagan, who served as Solicitor General but not as a judge. But it does give Democrats a talking point, during a time when not giving them talking points is a priority. Also, because Todd has spent much of her career “inside the Beltway,” nominating her might not offer as much political advantage to the president (although as you can see from her New York Times wedding announcement, her family is from Peru, Indiana, where her father retired as an assistant chief of the Peru Fire Department — a nice biographical detail to trot out at a SCOTUS nomination announcement).

My suggestion: if he’s elected to a second term, Trump should reward Kate Todd for her White House service by nominating her to the D.C. Circuit (something I floated as a possibility as early as 2017). Like her former boss Thomas, she could serve on the D.C. Circuit for a year or two, then be nominated for a future vacancy.

The field: 19-to-1 odds (5 percent)

As we’ve learned over the past four years, Trump’s mind can change quickly. He has shown more steadiness on the Supreme Court than on many other matters, perhaps realizing its importance to his electoral fortunes. But the former reality TV star always enjoys putting on a show, including one with a big reveal, so there’s a chance — rather small, but not nonexistent — that he’ll go with someone other than the five finalists.

I do think, however, that Trump will at least stick to his not-so-short shortlist, which has now swelled to 45 names, after his release earlier this month of a fourth list with 20 more names. So for those of you keeping track at home, the seven women on the Trump list who are not listed above are, in alphabetical order, Judges Bridget Bade (9th Cir.), Allison Eid (10th Cir.), Britt Grant (11th Cir.), Martha Pacold (N.D. Ill.), Sarah Pitlyk (E.D. Mo.), Margaret Ryan (Armed Forces App.), and Diane Sykes (7th Cir.).

In this group, I’d say that Grant, 42, has the best shot at breaking out. She’s a Stanford Law grad, a former Kavanaugh clerk (from his time on the D.C. Circuit), the former Solicitor General of Georgia, and a former Georgia Supreme Court justice.

If Trump really surprises us by nominating a man — which I don’t think he can do, having just promised us a woman, but Trump has often done things that people said he couldn’t or wouldn’t do — then I think the pick will be Judge Amul Thapar (6th Cir.), who would at least make history as the first Asian and South Asian American justice.

But let’s not overthink this or get caught up in wild speculation. Trump’s first two Supreme Court picks were longtime leading contenders, consistent with conventional wisdom, and his third one will probably be too.

Judge Amy Coney Barrett, all eyes are on you.

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Over the summer, I spent some time reading the works of Wharton’s Jonah Berger, which I think have relevance to any litigator. We do have to persuade people after all. But this is not a column about persuasion techniques, or even my main takeaways from Berger’s oeuvre. Instead, I want to focus on an observation that I recall reading in one of his works, related to Apple’s continued success in helping shape customer preferences through design decisions made with respect to their products. In one famous example, Steve Jobs himself was involved in deciding the orientation of the Apple logo on the back of the MacBook — so that the logo would look best when viewed by others while the user of the laptop had the cover flipped open. Apple’s attention to such small details has been a major contributor to the outsized success enjoyed by their products.

As another example, we can consider the ubiquitous (but not cheap, and unfortunately very easy-to-lose) Apple Airpods. A simple device, with a host of competitive options available to consumers. But despite their simplicity and the stiff competition in the headphone/earbud space, Airpods have taken off in a huge way. One contributor to that consumer uptake, at least according to Berger’s outlook on drivers of customer behavior, was the decision to make Airpods white. Why? Because we as customers are influenced by the decisions of other shoppers. Being white, Airpods are easily spotted in the ears of their owners. Seeing them in the ears of others spurs non-Airpods owners to buy their own pair, while also validating the decision of existing owners to purchase the product. Put another way, the white color of Airpods helps them stand out in a crowded marketplace (or pre-COVID subway car,) while providing incentive for an ever-greater cohort of consumers to join the club by choosing Airpods for their audio-delivery needs.

Considering the popularity of Airpods, it should not be a surprise that Apple has taken legal steps to help stem the tide of unauthorized Airpods alternatives flooding the market. First and foremost, Apple has trademarks on the Airpods name, as well as the brand name Apple. Those are critical to Apple being able to stop counterfeit Airpods from flooding the market. And by counterfeit, I mean real counterfeits, not just non-Apple branded knockoffs that are easily recognized by customers as Fairpods (or fake Airpods). But even with respect to Fairpods, Apple also has design patents in its arsenal to stop potential infringement, as well as a recently registered trade dress registration (Reg. No 6072526) for the configuration of the Airpods. Or in trademark speak: “configuration of a pair of ear buds in a charging case, featuring smooth, rounded edges and an oblong head for the ear buds, a rectangular shape with smooth round edges for the case, and hinged lid that opens at the top of the case.”

This product configuration mark for Airpods made the news (in both the tech press and for some reason, a leading travel blog) last week, in a very interesting context — where U.S. Customs and Border Protection (the CBP, whose IP protection efforts have been chronicled on these pages) announced the seizure of “counterfeit” Airpods. While such seizures are likely fairly routine due to CBP’s diligent efforts, this one got a lot more attention. Primarily because the products seized were not counterfeit Airpods at all, but rather (pretty expensive) branded alternatives from the large Chinese smartphone maker OnePlus. But product similarity was not really the main story, at least initially, with most outlets choosing to bash CBP for promoting its seizure as one of “counterfeits.” But those same bashers had less to say about whether CBP was correct in seizing the OnePlus Buds for trade dress infringement. While the seized OnePlus Buds clearly sported OnePlus-branding — and were thus not counterfeits — they had also been heralded as “cheap Airpods for OnePlus phones,” at least according to a review that touted their “Airpods-like rigid design.” Such comparisons make CBP’s seizure a lot more plausible.

Like other media outlets, I reached out to CBP’s press agent the day of the seizure announcement and was provided the following statement: “Upon examining the shipment in question, a CBP Import Specialist determined that the subject earbuds appeared to violate Apple’s configuration trademark.  Apple has configuration trademarks on their brand of earbuds, and has recorded those trademarks with CBP.  Based on that determination, CBP Officers at JFK Airport have seized the shipment under 19 USC 1526 (e). CBP’s seizure of the earbuds in question is unrelated to the images or language on the box. A company does not have to put an “Apple” wordmark or design on their products to violate these trademarks. The importer will have many opportunities through the adjudication process to provide evidence that their product does not violate the relevant recorded trademarks.” In short, CBP was doing its job and enforcing Apple’s registered trademark, which was apparently also properly recorded with CBP. Again, considering that at least one prominent review of the OnePlus Buds noted their design similarity to Airpods, it should not be a surprise that CBP took action.

Ultimately, while Apple is happy — and OnePlus not pleased — with CBP’s latest seizure, this entire situation reinforces a few things of interest to IP lawyers and their clients. For one, it underscores the importance of building as much IP protection (over time) for hit products as possible, if only to take advantage of such benefits as summary seizures by CBP of potentially infringing products. Second, it adds fuel to the fire around whether CBP has too much power to make such summary adjudications (with immediate consequences for alleged infringers) or whether Congress should be giving even more bite to CBP’s bark when it comes to IP protection — such as with respect to design patents, as discussed in my column on the topic last December. There, I wrote that “[G]reat care would be needed to avoid gaming of the system by design patent owners, in terms of having CBP adjudicate infringement against competitors without the legal protections afforded by an ITC or District Court case.” In considering that important question, evaluating whether this recent Airpods episode led to a desired result should be part of the analysis undertaken by Congress, along with the views of IP academics who have studied these issues. In the view of at least some, CBP has proven up to the task of policing IP infringement. Others have taken a more critical view. For now, however, CBP has served notice that it can and will exercise its ability to deem products as counterfeit and seize them based on visual comparison with registered marks recorded with CBP. Good news for IP owners, as well as a warning to infringers, particularly those who depend on importing their wares into the United States.

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.