Category Added in a WPeMatico Campaign
Shocking Exactly No One: Originalism turns out to be more about the current whims of conservatives than anything original.
The Unmitigated Gall: Donald Trump wants Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves.
#MeToo Victory: A look at the post-Weinstein era.
Law School Or 8th Grade? Which is worse? (Law school. For sure.)
According to bar passage data release by the American Bar Association, the law school that had the lowest percentage of first-time test takers pass the July 2019 bar exam was Western Michigan University Cooley Law School. What percentage of the school’s first time test takers passed the bar exam?
Hint: Nationwide, the first-time test taker pass rate was 74.83 percent. Cooley’s rate was lower. Much lower.
See the answer on the next page.
Given the sheer breadth of the allegations variously lobbed at one another by retiring hedge fund manager Louis Bacon and his Bahamian neighbor, Canadian discount fashion mogul Peter Nygard, over the past decade-plus, it’s easy to the think there is hardly a crime or immorality alleged against one side or both left. After all, Bacon has accused Nygard of environmental degradation, defamation, a campaign of terror and physical violence, vandalism, breaking-and-entering, contempt of court, arson, buying off the Bahamian government and attempted murder, and Nygard has responded with allegations of Ku Klux Klan grand wizardry, deployment of military-grade speakers, narcotics dealing, insider-trading, weaponized journalism, arson, buying off the Bahamian government, attempted murder and actual murder.
There is, however, one explosive accusation yet made: sex trafficking, specifically in underage, impoverished girls. In a way, given how long this has all gone on, its absence from the above list is pretty amazing, given Nygard’s personally-attested sexual voraciousness, the numerous allegations of sexual assault made against him over the decades, and the fact that sexually assaulting children is one reason rich guys own secluded island getaways.
As it turns out, however, Bacon and his team have been working diligently for five years to correct the omission.
In late 2015, they hired TekStratex, a new Texas security firm, to push American law enforcement officials to investigate him for sex trafficking…. The F.B.I. looked into Mr. Nygard twice, but only briefly. In April 2016, the Department of Homeland Security dug in…. Despite the Bacons’ efforts, the Homeland Security investigation fizzled after nine months, suspended because of “unforeseen circumstances” and “lack of prosecutorial evidence,” according to an agency email.
That was a setback, of course, meaning that Nygard wouldn’t be on two wanted lists. But Bacon wasn’t done trying.
Six women went to the Bahamian police — a big step, as law enforcement is considered the most corrupt public institution in the country, according to a 2017 Transparency International study, and sex crimes are notoriously underreported…. The Bahamian police are still investigating.
Nice, but not totally satisfying. And given that Bacon has the money to make it happen, why wait on an entirely unreliable law-enforcement body when you can just have those women make those allegations public in a somewhat less unreliable venue.
This month, a federal lawsuit was filed by separate lawyers in New York on behalf of 10 women accusing Mr. Nygard of sexual assault. The lawsuit claims that Mr. Nygard used his company, Nygard International, and employees to procure young victims and ply them with alcohol and drugs. He also paid Bahamian police officers to quash reports, shared women with local politicians and groomed victims to recruit “fresh meat,” the lawsuit says….
“One time, he was like: ‘I don’t know where you find these girls from, but there’s pretty girls in the ghetto as well,’” recalled Freddy Barr, Mr. Nygard’s personal assistant in the early 2000s. “‘You need to find pretty girls in need.’”
Eventually his staff compiled an invitation list, provided to The Times, with names of more than 700 women. Former workers said they photographed guests when they arrived, uploading the images for their boss’s perusal. Only those who were young, slim and with a curvy backside — which Mr. Nygard called a “toilet” — were supposed to be allowed inside, according to the ex-employees, including Ms. Taylor. (She asked to be identified by her maiden name to keep people from knowing her connection with Nygard Cay.)
The actress Jessica Alba, who attended a Nygard party while filming “Into the Blue” in 2004, later described it as “gross.” “These girls are like 14 years old in the Jacuzzi, taking off their clothes,” she said on a press tour.
Nygard, of course, denies that he’s been anything but a perfect gentleman to any woman he’s ever hosted, worked with, met or seen on the street. And, this being the celebrated saga of “As Lyford Cay Turns,” things are more baroquely complex than they initially seem.
The Times interviewed all the women who eventually signed on to the suit…. Three said they were under 16 at the time, the age of consent there. But two later recanted, saying they had been promised money and coached to fabricate their stories.
On the other hand, Nygard himself has made clear the Times can’t be trusted, so…
How a Neighbors’ Feud in Paradise Launched an International Rape Case [NYT]
The DC office of a top AmLaw firm asked Kinney Recruiting to seek out an associate with at least three years’ experience advising life sciences companies in the US and Europe with significant corporate transactions.
This is an outstanding opportunity for a life sciences corporate associate to join a premier group in DC and gain direct exposure to global life sciences and technology based corporations.
Please apply to this posting by clicking this link or send your resume to jobs@kinneyrecruiting.com to learn more.
(Image via Getty)
Today is the first day of the February 2020 administration of the bar exam. Around the country, wannabe lawyers are sitting for what is likely the most important (and hopefully last) test of their professional lives. No pressure…
Passing the bar exam takes a lot of hard work, and a pinch of good luck — like the State Bar sharing the subject areas to be tested on the essay portion of the exam just days before the test — all coming together to get you into the legal profession. Don’t think it takes a little bit of luck to pass? Imagine if you weren’t fortunate enough to miss the biggest bar exam mishap ever (courtesy of ExamSoft), or you didn’t go into labor mid-exam even though you were heavily pregnant, or you avoided such extreme intestinal distress that proctors put your desk in the bathroom.
In case you weren’t feeling lucky enough, here are some more well wishes:
But here’s the important question: What was the craziest thing that happened during the February 2020 bar exam? If you survived or witnessed some horror story in action, let us know. You can email it to us (subject line: “Bar Exam Horror Story”) or text us (646-820-8477). Maybe your story will inspire others to persevere.
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.
Sometimes even doing everything right gets something wrong. When it comes to video game development, this statement is right on point. It should come as no surprise to those in the video game development and publishing community that a host of considerations must be weighed when developing a video game. From the technical aspects of the program (such as graphics rendering and online multi-user handling) to the story line and gaming construct, developing and publishing a video game in this day and age is no easy task. What is becoming even more important, however, is the importance of the online gaming community to the ongoing success of any gaming franchise. Gone are the days of buying a video game and simply playing it to its conclusion — we are in the age of massively multiplayer online (or “MMO”) gaming platforms, and online gamers that record and monetize their online exploits. It is at this intersection of video gaming and entertainment that some interesting (and unintended) intellectual property issues arise, and like a good MMO game, they are getting some attention.
Video games have come a long way in just the past 10 years. Instead of just interacting with the game and playing against another friend or three present with you at the console, MMO gaming platforms allow large numbers of individual gamers worldwide to compete together in online gameplay from the comfort of a chair at home (or a mobile device for that matter). One of the better-known gaming platforms is Fortnite by Epic Games — an MMO platform that has players glide into a defined world and fight each other in playful combat using characters that they can clothe and customize through its online “shop.” One of the customizations includes the ability to exercise an “emote” — a series of dance moves usually accompanied by music that permits the players to express themselves and their feelings during gameplay. From the somewhat better known (like the “Electric Shuffle”) to the more obscure (“Hootenanny,” anyone?), there are a host of different ones to choose from to reflect the personality (and moods) of the player. As fun and expressive as they may be, the incorporation of such emotes and music have unlocked some issues that can cause some unintended missteps for the video game developer if they are not careful.
Recently, the “Never Gonna” emote was added to Fortnite. For those not in the know, this emote is based upon the 1987 hit Rick Astley song “Never Gonna Give You Up.” The emote basically plays a portion of the song, with the player mimicking the dance moves performed by Rick Astley in his original music video for the song. It also capitalizes on a popular online prank using a disguised hyperlink to the music video in a type of “bait and switch” from the purported content after the click, lovingly referred to as “rickrolling.” This is where things get problematic. First, the incorporation of dance moves comes with some risk — as I have written here a year ago, some artists have sued Epic Games for incorporating their signature dance moves (such as Chance the Rapper and Alfonso Ribiero and his “Carlton” dance). Some of these combinations of movements may (or may not) qualify for copyright protection, so a proper vetting prior to incorporation is prudent. To the extent such personalities have actually registered the copyrights to their dance moves before asserting copyright infringement (courtesy the SCOTUS holding in the Fourth Estate case), any videogame developer seeking to incorporate such dance moves needs to consider an appropriate license prior to doing so. Of course, the same goes for any associated music; however, this is where the law of unintended consequences comes into play.
The problem with emotes and their associate music is best illustrated by looking at the “Never Gonna” emote. Epic Games stepped up their game by licensing this content for incorporation into Fortnite, but in doing so they did not realize that they would be creating potential problems for their players. How? Many online gamers stream their playing on other platforms (such as YouTube and Twitch). Some of these players have developed significant followings of subscribers who enjoy watching this content, which these players are able to monetize through the platforms depending upon the number of subscribers. Therein lies the rub — the license provided to Fortnite covers the public display and performance within the MMO gaming platform, but the streaming of such content (or recording of the gameplay for views on these platforms) rests outside the scope of these licenses. As a result, YouTube’s automated Content ID tool, used to identify potentially infringing content, is flagging such videos, and the content creators are losing the ad revenue generated from such content. In sum, Fortnite’s licensed incorporation of the emote has resulted in potentially unlicensed use by the very gamers who help propagate the popularity of the online MMO gaming platform.
So what is the solution? In the short term, it seems that Fortnite has created a patch that will permit such gamers (a.k.a. content creators) “playing on PC [to] mute licensed emote audio.” Obviously, that “fix” is helpful, but incomplete. Ultimately, the fix will be to account for such secondary streaming and recorded video in any future licensing. YouTube’s Content ID tool will then need to account for such licensing accordingly.
The lesson here is that the videogame developer did not account for the essential part of its gaming community — its creator base. Fortnite’s popularity is due in no small part to the millions of subscribers who view streaming and recorded gameplay by such content creators. Any video gaming developer seeking to incorporate choreography or music should take heed of Fortnite’s experience (and its lead) — avoid stepping on the toes of both licensors and content creators alike by taking the appropriate steps to ensure that the appropriate intellectual property rights are licensed. Such steps will have the respective gaming communities dancing to the right tunes and contributing to a healthy bottom line for the company.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.
As we start 2020, many would (reasonably) argue that the tech disruption of the legal industry is well underway. The pessimists among us, however, will argue that change has been relatively incremental. At a macro level, they would argue that law continues to be practiced in much the same manner as it always has been in the modern era. Where, they would question, is the dramatic change? Where are Tomorrow’s Lawyers? Certainly in a market that seems to sustain ongoing rate increases, one can question not only the impetus for change, but also whether that change is actually occurring at all.
Personally, I think that we get far too caught up with expectations of revolutionary change instead of evolutionary change. Stanford scientist Roy Amara is reputed to have said, “We overestimate the impact of technology in the short-term and underestimate the effect in the long run.” The ubiquitous internet gives us a great example of this phenomenon. The Advanced Research Projects Agency (ARPA) built the beginnings of the internet starting in 1966. The omnipresent connectivity (and associated productivity) that we take for granted took many, many years to infiltrate its way into our lives, but now it’s hard to conceive of life without the internet.
Innovation blogger and author Ralph-Christian Ohr defines evolution as ongoing and incremental innovations, as compared to revolution, defined by radical and discontinuous leaps to completely new offerings. The internet in this model would represent an evolutionary example of evolution, whereas the smartphone could be argued to be revolutionary. When talking about the legal industry, I would make the argument that we are experiencing and will continue to experience evolutionary changes. Legal technology that addresses specific use cases (e.g. document review) is reaching higher rates of adoption and becoming more common, which in turn opens the door to more innovation in the future.
To take another contemporary example, consider the concept of the self-driving car. The reality is that a vehicle with full automation will look very different than the car you have today: there won’t be a need for a steering wheel, mirrors, or other safety features made to prevent accidents caused by human error. While cars made today still have all of those features and are not purely self-driving vehicles, they do have many features that are necessary for a self-driving car: self-correcting navigation, automatic braking, parallel-parking capabilities, and adjusting for traffic in cruise control. These features are all AI-driven capabilities and are aspects of the self-driving car that are materializing right in front of us.
My suspicion is that few of us are ready to get into an automated car with no driver controls at this point, but the incremental changes that we’re experiencing in automotive technology right now will help to make that transition to a fully automatic vehicle much easier, whenever or wherever that moment arrives. I would argue that the same logic can apply to legal practitioners. Incremental adoption of foundational technology will make the process of adoption enabling and even transformational technology much easier in the long run.
Wolters Kluwer’s Future Ready Lawyer survey backs this theory up with some data. The survey found that the adoption of foundational technologies delivers benefits today and sets the stage for integrating more advanced technologies on an ongoing basis. With this argument in mind, I have a couple of recommendations for those interested in driving innovation incrementally, or those looking for the next steps in implementing a higher rate of tech adoption within their organizations.
Adoption today will pave the way for better understanding of new technology tomorrow. Many of us have seen or experienced how a lack of understanding of technology can stand in the way of innovation. There is a reason why the Future Ready Lawyer indicated that technology leading organizations are more likely to overcome this challenge — having experience in adopting tech solutions can open the door for adopting newer, more complex tech solutions as they move toward maturation and become more widely available in the market.
Innovation should foster even more innovation. The legal industry is changing fast, and we no longer live in a world in which having one tech tool makes you innovative. Onboarding one type of technology successfully shouldn’t be the end goal of adoption — rather, it should be the case study in the argument for onboarding future solutions that address specific pain points and use cases for an organization.
We are all interested to see what the future brings us in the legal industry –- and it’s safe to say that no one is certain of how much different it will be in a few years. What we can ascertain is that those who are already using impactful technologies to increase efficiencies and achieve better outcomes are far more likely to benefit from the advantages that technology delivers.
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Drug patents take center stage in the drug price debate. Although the need for cheaper options such as generics and biosimilars is great, pharma companies are often reluctant to let drug patents expire since they can continue to generate revenue.
Pharma bro Martin Shkreli called public attention to the practice of obtaining manufacturing licenses for drugs with patents that expired and boosting their prices. Another approach, known as “Evergreening”, allows drug companies to extend their monopolies and stave off generic competition by obtaining patents to cover new uses for drugs, methods of manufacture and formulations.
From 2016-2020 our biopharma reporters past and present have explored the drug patent terrain. Their articles provide a guide to the drug patents that were set to expire and highlight efforts by the FDA to stimulate the market for generics. They also highlight the challenges of getting cheaper drug options to market.
Fill out the information below to download our latest eBook: What is dead may never die: A review of the afterlife of drug patent expirations.
As an associate at most larger law firms, interactions with the firm’s accounting department are often sporadic at best. Most of the time, you never hear from accounting at all. At some point, when you have been fortunate enough to originate a client or two, you will likely be introduced to someone in accounting, who will likely reach out to make sure that outstanding invoices are in the process of being collected, if at all. Making partner doesn’t change things much — your interactions with accounting typically revolve around billing and collections issues. (While collecting money can be a bear, at least you can also take succor in the fact that you are a partner at a large enough firm to have its own internal accounting staff.)
What about personal taxes for Biglaw lawyers? As a salaried associate or counsel, they are actually quite easy to handle using tax software or a volume preparer — unless you have a spouse with their own business, or have inherited a vast real estate empire that generates income for you on the side. Even as a partner, most of the difficult personal tax issues — such as paying state taxes in each state the firm operates in — are handled by the firm, leaving your personal return relatively simple to handle with minimal outside help. In fact, at least for litigators, you are more likely to have to spend more time dealing with litigation audit requests from accountants for your clients than you need to spend on your personal taxes. Again, assuming your main income is from your Biglaw draw and distributions, without involvement of income-bearing investments of consequence and the accompanying additional tax complexity.
Things change immediately, however, once you decide to leave the big firm cocoon (or if you never entered one, right when you start practicing) to open your own firm. As a service business owner (albeit one that is a bit disadvantaged under current tax law relative to other businesses), one of the first things you need to do is find a good accountant. This can’t be overstated — and is as integral to running a successful law practice as picking the right banking relationship or malpractice insurance provider.
In fact, it is well worth the investment in time to actually interview accountants before selecting one. You can start with practices that come recommended by others and have some familiarity with the types of issues firms like the one you are starting typically encounter. Probably best to talk to at least two so you have some means of comparing options. For firms with established accountants, it is important to continually evaluate your relationship with your firm’s accountant, to make sure you are getting the expertise and service your firm needs to flourish.
Considering how important it can be to have good accounting help, it is also worthwhile to consider what you can do as a client to help your accountant provide optimal service. That starts with recognizing how busy accountants can get, especially during tax season. Which means helping them out by organizing the firm’s finances, collecting 1099s from clients, and assembling whatever other information the accountants will need for the firm’s upcoming return. In addition, an awareness of the accountants’ workload during tax season suggests you should leave the planning and strategy discussions for less busy times. Ideally after filing season has completed, when your discussion can take into account the return that was just filed as well as your performance to date in the current tax year.
As important as a relationship with a solid accountant can be for a firm, it is also important for lawyers to learn from how accountants service their clients. In fact, anytime you, as a lawyer, interact with other service providers, you are provided with an opportunity to learn something. Sometimes, we can emulate what we learn, such as how good accountants really take the time to try to understand a client’s businesses as much as possible. So that advice can be tailored to the particular needs of the client — something any good lawyer should strive to do for all clients. And at other times, a lawyer may be presented with an example of what not to do from a fellow service provider, such as if an accountant is not forceful enough about getting critical documents or information from a client, resulting in errors on a return, for example. Here too, a lawyer can learn how important it is to be persistent about making sure that clients are giving the full picture, so that any advice can be accurate and responsive to the client’s actual needs.
Ultimately, developing a relationship with a good accountant is a must for any firm, as it is with any business. Our practice has benefited from the good advice we have gotten from accountants we have worked with, on issues such as how best to structure licensing deals to whether or not it is worth it to pursue tax refunds from overseas withholdings of monies due our clients by foreign defendants. Just as each and every practice is different, so too will a firm’s needs from its accountants be different. So take the time to find a good one, or periodically consider whether your current accountant is the best match for your firm. For as long as the answer is yes, appreciating the accountants will always be good form.
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.
(Image via Getty)
The main guideline is for people to stay at home if they want to, but if there are reasons they have to come in, they can. There is no news of firms shutting down yet, but it would be absolutely disproportionate to what is going on. If you go around in Milan today, it is not a dead city. Of course people are scared, but I think they’re more scared because of the press coverage.
— a partner at BonelliErede, an Italian Biglaw firm, commenting on what precautions members of the legal profession have been taking due to the sudden coronavirus outbreak in Milan. A partner at Bird & Bird, a U.K. firm with offices in Rome and Milan, said that meetings at the Milan office are “highly discouraged” and “travels from and to our office in Milan are restricted.” The Hogan Lovells office in Milan is still open, but “people have the option to work remotely” during the health scare.
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.