Category: News Feeds

The last few years have all been good years anyway, so now we will be at or above last year, and that’s good news for legal education. We’re busier at this time of year than we have ever been in our history. We’ve seen a good surge both for this fall, and already for the next fall.

— Kellye Testy, president of the Law School Admission Council, commenting on the surge in law school applications that have been submitted over the past six weeks of the pandemic. More than 61,500 people have now applied to attend ABA-accredited law schools for the upcoming academic year. The online LSAT-Flex and a challenging job market likely impacted the rush of applications.

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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.

Chief Justice Roberts was hospitalized for a head wound and managed to keep the news from the public for weeks. But it didn’t seem to slow him down on the final day of the Supreme Court season, authoring two opinions punting on Trump’s subpoenas, kicking things back for a nice, long, litigious delay. The rule of law is upheld theoretically if not practically and that’s just where Roberts likes it. Also, we catch up on the looming in-person bar exams, which have crossed into farce refusing public health warnings while issuing dress code modifications.

Judge Alvin Hellerstein ditched the preliminary approval of a proposed settlement in the Harvey Weinstein matter today, deciding that a $46.8 million compensation fund with funds set aside to help Weinstein fight off any accuser who doesn’t join the settlement didn’t make a whole lot of sense.

And Judge Hellerstein didn’t pull punches when describing his feelings about the structure of the deal:

“The idea that Harvey Weinstein can get a defense fund ahead of the claimants is obnoxious,” he said. “The idea you can regulate the claims of people not in the settlement — I can’t subscribe to that.”

The whole effort seemed flawed from jump in a matter where decades of abuse appears to have taken place. The agreement seemed like a rush job to secure releases for the Board members. Hellerstein refused to let this become a class action where a special master would assign value to the claims of women with wildly disparate stories.

The result was welcomed by lawyers representing individual women against Weinstein. From The Hollywood Reporter:

Douglas H. Wigdor and Kevin Mintzer, who represent several women who accuse Weinstein of abuse and harassment, were the first attorneys to issue a statement following Hellerstein’s decision. “We have been saying for over a year and a half that the settlement terms and conditions were unfair and should never be imposed on sexual assault survivors,” it reads. “We were surprised that class counsel and the New York Attorney General did not recognize this fact but are pleased that Judge Hellerstein swiftly rejected the one-sided proposal. On behalf of our clients, we look forward to pursuing justice against Harvey Weinstein and his many enablers.”

This opinion has ripple effects in other litigations. The NYAG gender discrimination action was going to be resolved as part of this settlement — that presumably will be back on. Insurance litigation over Weinstein’s company policies will also see new life. From Variety:

“There’s been numerous discussions in various circles about what to do next,” said Jeffrey Schulman, who represents Weinstein in the insurance case. “This remains quite fluid… I think we’re all going to need to resharpen our pencils and figure out what to do next.”

Judge Rejects Harvey Weinstein Settlement: ‘I Can’t Subscribe to That’ [Variety]
Judge Rejects Proposed Weinstein Class Action Settlement [Hollywood Reporter]

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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.

If you though Joseph Otting spent his entire two-and-a-half years as U.S. Comptroller of the Currency taking the “community” (read: uppity people of color who think they ought to have a say in things in their neighborhoods) out of the Community Reinvestment Act, think again: He also spent it making sure no bank would ever have to suffer the pain and embarrassment of public disclosure of racist lending practices, let alone a fine.

Since President Donald Trump took office, the OCC has quietly shelved at least six investigations of discrimination and redlining, according to internal agency documents and eight people familiar with the cases…. In each case, despite staff recommendations that fines or other penalties be imposed, the OCC took no public action and closed the investigations quietly….

The OCC has historically prioritized the well-being of banks over bank customers, said current and former examiners, but the balance has shifted even further under the Trump administration.

The battle for the Equal Rights Amendment — a constitutional amendment to guarantee equal treatment based on sex — has been going on for over 100 years. Now that 38 states have ratified the amendment, the ERA is closer than ever, but it’s far from a given. There’s a whole lotta legal wrangling that has to happen first.

I chatted with Linda Coberly, Chicago Office Managing Partner for Winston & Strawn as well as the Chair of the ERA Coalition’s Legal Task Force, about the ongoing fight for the adoption of the Equal Rights Amendment. She talks about the recently filed amicus brief in support of the adoption of the ERA, the history of the amendment, why it’s taken so long, how Winston & Strawn got involved in the effort, and about the importance of Biglaw pro bono efforts.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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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).

Corporate governance is one of the most crucial aspects of corporate law, with entity ownership and corporate structure having serious implications on taxation, regulatory matters, and more. Unfortunately, though, it can also be one of the most time-consuming aspects of corporate law. 

The global entity management experts at Diligent are changing all that. With two sophisticated tools created for the legal industry – Diligent Entities and EquityEffect – Diligent makes it easy for lawyers to manage entity and subsidiary information for even the largest companies across the globe. Diligent Entities makes it easy to keep tabs on entity organization, with comprehensive books and records and corporate structure information stored in one easily accessible place. EquityEffect allows you to manage cap tables through streamlined software that puts an entity’s legal vitals relating to share ownership and valuation at your fingertips. 

Efficiently managing corporate records and equity without writing off tons of hours used to seem like an impossibility. Diligent has made the impossible possible, empowering attorneys to do more with less and demonstrate extra value to their clients in the process. Diligent helps your law firm centralize, manage, and effectively structure your client’s cap tables and corporate record in order to deliver a personalized customer experience with better information, at scale. With Diligent Entities and EquityEffect, you can achieve better entity management in a fraction of the time. 

Diligent Entities – Who Does the Company Own?

The first part of Diligent’s corporate governance offering is Diligent Entities, which essentially functions as a digitized corporate record. The tool is a centralized, web-based place that houses the vital information for companies that you manage.

Company information that was previously scattered now lives in one place – addresses, who’s on the board, all the minute book documents, and all the decisions you’ve made throughout the course of managing an entity. From the main page, you can click into a single entity record to drill down on a specific company.

On any given entity page, you’ll see company vitals like its name, tax ID, the company type, where it’s incorporated, and any other custom fields relevant to your specific organizational needs, such as internal tracking information.

For every entity, you can store basic corporate documents, like articles of association, board resolutions, or other matters of corporate record, for easy access whenever you need to provide them to regulators or respond to lawsuits.

One of the most important – and most time-consuming – aspects of tracking entity relationships is ascertaining corporate structure. This is particularly true when you’re dealing with a massive organization with hundreds of subsidiaries. To ease the pain of what once took hours and hours of work, Diligent Entities is rolling out a new org charting tool that will exist right within the system. With this tool, you can quickly and easily generate ownership structure from the information that already resides in Diligent Entities.

The result is a clean visualization of organization structure and ownership. These easily accessible charts will have huge implications for global taxation issues and for satisfying KYC obligations, among other things. By the end of the year, they’ll also be offering a document assembly tool which will provide templates for creating regular corporate documents and filings, automating a process that typically takes days to complete.

Entity management was once a burdensome and largely administrative task. With Diligent Entities, it’s an intuitive and customizable process that eliminates hours of work and allows both law firms and corporate legal departments to do more with less.

EquityEffect – Who Owns the Company?

The other half of Diligent’s corporate governance offering is EquityEffect. Cap tables are critical to understanding a company’s ownership and equity distribution among limited partners, employee shareholders, and other investors. Companies pay anywhere from $6,000 to $20,000 a year for cap table management software that offers limited functionality. Law firms that try to manage cap tables for those companies typically employ several disparate processes that waste time.

EquityEffect allows law firms to manage all their client cap tables in a single place, with one login for all lawyers, paralegals, and staff. From a main dashboard, the firm can see a list of all the companies they represent and easily navigate through a long list via a search box.

Clicking on any company takes you directly into their cap tables, so you can immediately see high-level ownership and value information.

EquityEffect is designed with legal teams in mind with an emphasis on ease of use, making it stand out from standard cap table management solutions. While it can typically take a law firm partner two hours to gather the information necessary construct a waterfall analysis for a client, with the complete cap tables already in EquityEffect, the analysis can be done in a matter of seconds. Simply enter an exit amount and an exit date, and you have a full waterfall analysis available for any client.

You can run these analyses as often as you want, with whatever exit dates or total proceeds you desire, to compare different scenarios. For example, if a client is contemplating raising capital for future equity rounds, an attorney can go into EquityEffect, create a fictional round, include it in a particular scenario (you can create an unlimited number of scenarios), and provide your client or shareholders with total transparency into how the cap table would look after each potential scenario.

When it comes to time and efficiency, there’s no better way to provide this valuable advice to your clients. You can create fictional rounds in seconds, with tailored parameters and documents attached, and run as many side-by-side comparisons as it takes to get your client to the answer they need.

Robust reporting features allow you to immediately report out summary cap tables with formulas, stockholder lists, single shareholder reports, and more with just a click. You can even give your clients the ability to run reports themselves if you prefer. Document storage, automated accounting tools that generate 409A reports in under 10 minutes, and the ability to tailor system permissions round out the picture, making EquityEffect the only cap table management platform you’ll ever need.

EquityEffect not only rolls all clients up into a single interface, it also lets law firms offer their clients access to the software. EquityEffect typically costs just 10-20% of the retail price that clients pay for less powerful software on the open market. Providing access to EquityEffect is a valuable service that will set you apart from your competitors.

Simply put, EquityEffect gives law firms a streamlined way to offer both institutional-level intelligence and demonstrable value at a time when clients are particularly sensitive to wasted hours and high legal bills. By enhancing your corporate secretarial and cap table service offerings with technology-enabled professional services, you can further differentiate your organization from the competition and increase new customer acquisition.

Better Corporate Governance at Your Fingertips

In today’s competitive legal market, the pressure is always on to provide increased efficiencies at lower cost. In the realm of entity management, Diligent makes it possible. Streamlining the process of managing cap tables, entities, and their regulatory needs without compromising security gives legal specialists the ability to do more with less, leading to better operational efficiency and improvements in your law firm’s bottom line.

Whether it’s information on who owns an entity or what companies that entity owns, Diligent has essentially taken mountains of information that used to reside in file cabinets and placed it in a centralized place that can be immediately and efficiently accessed through Diligent Entities or EquityEffect. Stop writing off wasted hours and start demonstrating value to your clients by letting Diligent handle your entity management.

On July 7, Harper’s Magazine published A Letter on Justice and Open Debate signed by prominent writers and academics from a broad range of political backgrounds. The expressed goal of the letter is to raise objection to “a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.” As one of the signees will tell you, some of the reactions to the letter present a powerful argument as to why it was necessary in the first place. Although any sane person can see that things can, and have, gone too far when it comes to even the most prominent of our writing institutions. The central idea expressed throughout the letter that the “free exchange of information and ideas […] is daily becoming more constricted,” is profoundly and demonstrably untrue.

If viewed from a legal perspective in fact, the premise that speech is under some kind of threat is nothing less than absurd. Beginning with Justice Oliver Wendell Holmes’ dissent in Abrams v. United States, the modern era has since witnessed an ever-increasing expansion of free speech protections. Put simply, Americans have never, and I mean never, enjoyed this much freedom to speak without fear of government retaliation. Of course, the authors of the Harpers letter are not warning against legal threats by an oppressive government but limit their criticism to cultural forces they insist are restricting debate. But even viewed from a purely cultural perspective, the argument that our society is experiencing the “stifling atmosphere” the letter claims is tough to agree with or find evidence to support.

For one thing, as Mike Masnick puts it in TechDirt, there is simply no evidence that fewer people are participating in open debate. In fact, all available evidence indicates more people than ever before are participating in the marketplace of ideas. Per Masnick:

“There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it’s “more constricted” has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly — even if sometimes it’s to point out that the supposed wisdom of others is anything but. There is no real evidence of any “constriction.” There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.”

As with the guarantee of free speech itself, however, greater participation acts as a kind of double-edged sword. While empowering those who were once suppressed with the ability to speak more freely is a great thing, enabling the greater exchange of information does not mean the information or ideas will be moral or tolerant. Nevertheless, allowing intolerance and immorality into the debate also arguably offers overall value.

John Stuart Mill in On Liberty proclaimed that the “evil of silencing the expression of opinion,” even the wrong opinion, is that you deny others “the clearer perception and livelier impression of truth, produced by its collision with error.” In other words, bad ideas, intolerance, and immorality are arguably a necessary part of the market of ideas in that they help us discern their opposite. Of course, the Harper’s letter expressly denies the authors are trying to silence anyone. In fact, they claim they are refusing “any false choice between justice and freedom, which cannot exist without the other.” But as Masnick counters, the entire purpose of the Harper’s letter betrays this statement: “The only ones trying to silence anyone are those in this letter, saying that public shaming is somehow beyond the pale. It’s almost as if they don’t really want ‘argument and persuasion’ while pretending that’s exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it’s actually bad, without claiming it’s an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails.”

I must admit that when I first read the letter, I read it similarly (and as cynically) as Masnick. It appeared to me as one giant false antithesis where almost every statement within it contradicted the broader proposition of the letter itself. Noted free speech lawyer Ken White has called the Harper’s letter a “motte-and-bailey argument” stating it uses “the very widespread feeling that people shouldn’t get fired for (say) retweeting an academic paper” and tries “to apply it when someone calls out blatant overt yelling-at-stranger-in-a-restaurant racism. Which is a thing.”

As I cited at the beginning of this piece, of course you or I could point to many instances where public shaming has been misplaced or gone too far. Indeed, it is no coincidence that many of the authors of the Harper’s letter have been victims of what is now called “cancel culture.” Take Steven Pinker, I know it may sound cliché to write this, but this man’s work literally changed my whole view of humanity. Yet, even though Pinker is an outspoken proponent of all the Enlightenment ideals that progressives purport to value, Pinker is also the victim of (in my opinion at least), a misplaced progressive “purity posse.”

When you compare the (unsuccessful) attempts to professionally smear Pinker though, with other, indisputably more serious threats to free speech, you’re forced to take some measure of perspective. Perhaps if we all took a little more perspective, we might understand that more speech, and more participants, means more of the good and the bad.

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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.

Alabama posted its two highest daily infection rates in the last week and its most COVID deaths in a day a mere four days ago. So, obviously, the in-person July administration of the bar exam will go forward as planned!

The state supreme court just issued an order requiring the Alabama State Bar to adhere to safety precautions and make arrangements for an alternative September bar exam that applicants can opt into. But the July bar exam is still going to happen regardless of the data pouring in daily.

Not even Lou Saban could stop the bar exam at this point.

But while the order begins “having considered the COVID-19 pandemic, and its potential impact on applicants for the July 2020 administration of the Alabama Bar Exam,” in reality the court appears to have… not done that. Nor did it take stock of every available sign along the way warning them not to go forward with this perilous plan.

For example, the venue becoming a ghost town on them. The Alabama bar is held in one location — the Birmingham-Jefferson Convention Complex — and while the site officially puts on a brave face about working to provide a safe environment, the color scheme of their schedule really says it all:

The Masked Singer won’t even show up AND THEY’RE ALREADY WEARING MASKS. In the exam’s defense, there is more than enough room in the empty BJCC to give everyone a wide berth. People could be positioned 20 feet from each other if they wanted. But distance is only half the battle with infectious diseases. There’s still the lines to get in, the crowds moving in and out, the bathrooms, the recycled air… and just bringing people from all different corners of the state into one place and then promptly sending them back to spread the bug. The World Deer Hunters are the only other group that thinks anything is going to even be safe by the end of August and that seems, appropriately, like a game of Russian Roulette.

If that wasn’t enough, a hotel where bar applicants were encouraged to stay cancelled all reservations this week. Where are all these people supposed to stay when they come in for the test? And even if this is just one hotel, it should concern the bar examiners because hospitality businesses tend to follow the pack and one cancellation portends more to follow. At best it means a further crowding of applicants into fewer hotel spaces opening a disease vector independent of the testing venue.

There’s a classic joke about a guy who dies in a hurricane after denying help from a neighbor, a boat, and a helicopter, waiting for God to save him and upon reaching the afterlife having God scolding him, “I sent your neighbor, a boat, and a helicopter!” Infections are up. The venue is all but closed. No responsible entity — or Nick Cannon — wants to risk it. The hotels are shutting down. Seriously, how many more signs does Alabama need?

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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.

Traditionally summer is peak wedding season. Good weather, pretty flowers, and lots of vacation time make this time of year the perfect setting for nuptials. While COVID-19 has put a damper on large affairs, weddings are still managing to persevere in untraditional locations. Regardless of how one ties the knot, marriage always involves the the blending of two individuals’ lives, along with their families, assets, and values.

Pre-nuptial agreements are an important consideration for a marrying couple, regardless of their age, net worth, or family disposition. Often people forgo the pre-nup, because of their lack of wealth, young age, or the host of other items they have to deal with before the big day. In the age of COVID-19, many other considerations come into play before marriage. Given everything our society has faced during this pandemic, I maintain that executing a pre-nuptial agreement along with estate planning documents should be an engaged couple’s priority.

A pre-nup is an important document for many reasons, most notably because it dictates the distribution of assets and income in the event of a dissolution of marriage. For those who are not focused on money matters, a pre-nup, at the very least, encourages a couple to talk about their finances, disclose their financial health, and, albeit scary, address various possibilities their marriages may take.

Pre-nups generally focus on the dissolution of marriage, however, they also can determine how assets are distributed upon death. Divorce and death — two topics every engaged couple is eager to discuss. Often a pre-nup will indicate that assets will be distributed via intestacy or by last will and testament, assuming the latter is written. Usually, attention is given to the right of election, which is the statutory right of a surviving spouse to elect against the deceased spouse’s estate in the event she is disinherited. In other words, public policy dictates that you cannot disinherit your spouse. Depending on the state, a spouse, even if not included in an estate plan, can file an election in the probate court to receive a percentage, oftentimes, one-third, of the estate.

For those who marry when they are young, it is possible that the spouses will wish to leave their estates to people other than their new spouse, whom they may not know for a long period of time. Pre-nups will often include waivers to to the rights of election in the other’s estate in favor of parents or other relatives receiving the monies. If it is a second marriage, a waiver may be agreed upon so that the children from another relationship receive without any monies going to the surviving (second) spouse.

Having a pre-nuptial agreement, however,  is not a replacement for a last will and testament. When writing the latter, an attorney should inquire as to the existence of a pre-nuptial agreement and use it in her analysis of the estate plan. A last will and testament executed following the execution of a pre-nup will govern, however, one must be wary of waiving his or her right of election. It is possible that a last will will leave a bequest to a surviving spouse but not sizeable enough to the survivor’s liking. If the waiver is executed, he or she will not be able to elect against an estate.

Additionally, attention should be paid to whether a spouse will serve as executor under a last will. Beneficiaries under retirement plans should also be considered. If spouses are not going to serve in those capacities, special waivers may be needed.

With so much to do prior to getting married, a pre-nup is often put off. The idea of speaking with lawyers and discussing divorce and death do not seem to be in the spirit. A post-nuptial agreement, however, is also an option for those who do not get around to the execution before walking down the aisle. Once married, however, relationships undoubtedly change. The longer one waits to concretize an agreement, the more families change and assets may be commingled. Of course, children may be born, thus complicating relationships even more and perhaps lessening the feelings one had with regard to the holding of assets, prior to marriage.

It is important to note that one can revise, in writing, prenuptial agreements if situations change. The same goes for last wills and testaments. Like the execution of a last will, power of attorney, and health care proxy, executing a pre-nuptial agreement is prudent regardless of age, estate size, or family makeup.

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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.

There are many different and exciting ways to rank law firms. How prestigious are they? How much money are they making? How much take-home cash do partners earn? How big are they?

Yes, size matters, especially during these crazy COVID times. Amid furloughs and layoffs — acknowledged and stealth — firms could still be cutting associates while putting up big head count numbers.

The New York Law Journal recently unleashed its annual NYLJ 100, a ranking of largest law firms in New York covering the previous calendar year. As luck would have it, many Biglaw firms increased their New York City head counts by more than 10 percent in 2019, and now here we are, facing down austerity measures due to a pandemic. If you’ve ever wondered about head counts, this is the ranking for you.

The NYLJ 100 ranks the 100 largest firms by number of lawyers in the state of New York. All private law offices in the state are considered … irrespective of where the firm is headquartered or where it claims a home office. Non-U.S.-based law firms are considered equally with domestic U.S. firms; the sole criterion for inclusion in the NYLJ 100 is the size of a firm’s New York state presence.

The top 15 biggest firms (numbers show attorneys in New York) are not surprising. Let’s take a moment to gawk at Manhattan’s Biglaw behemoths:

1. Paul, Weiss, Rifkind, Wharton & Garrison: 832
2. Davis Polk & Wardwell: 700
3. Skadden, Arps, Slate, Meagher & Flom: 656
4. Kirkland & Ellis: 646
5. Simpson Thacher & Bartlett: 601
6. Weil, Gotshal & Manges: 563
7. Sullivan & Cromwell: 543
8. Cravath, Swaine & Moore: 496
8. Cleary Gottlieb Steen & Hamilton: 496
9. Debevoise & Plimpton: 481
10. Latham & Watkins: 480
11. White & Case: 433
12. Sidley Austin: 429
13. Milbank: 425
14. Fried, Frank, Harris, Shriver & Jacobson: 381
15. Willkie Farr & Gallagher: 380

Congratulations to Paul Weiss for employing more lawyers in New York than any other firm. This firm wins the award for putting the “big” in Biglaw in the Big Apple.

Head to the New York Law Journal if you’re curious about the firms ranked 16-100.

NYLJ 100: The Largest Firms in New York by Number of Lawyers [New York Law Journal]

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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.