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If we needed a reminder of how our world has shrunk, the current coronavirus scare has provided one in spades. While the locus of the concern over spread of the sickness is squarely centered in Wuhan on China’s mainland, the effects are undoubtedly global, with personal ramifications for people around the world, including my little corner — Brooklyn, New York. Put aside the news coverage of cruise ships docking just across the Narrows in Bayonne, New Jersey, with passengers needing medical assistance to disembark. Or the visible presence of Chinese-Americans wearing face masks alongside me on the F train into Manhattan. My immediate family has already been affected, with both my father and brother needing to cancel important business trips to China. It is still unclear whether the flow of goods from China to the United States will be substantially affected, as Chinese factories and businesses hesitate to bring their workers back after the long Chinese New Year holiday period.

The impact of the current China slowdown has also affected our IP clients, as our firm has a number of ongoing client matters with Chinese counterparties. Negotiating with domestic Chinese companies has long been a challenge. The current conditions have made things that much harder, with serious questions about whether those businesses are even open — much less in a position to deal with IP issues arising out of their commercial activity in the United States. While these concerns pale next to the loss of life and the ongoing struggle of those living under quarantine, they help to illustrate the interconnectedness of today’s global economy, as well as China’s central role in serving the US consumer the goods that our economy is built on consuming.

While the gap between the US and China has grown wider due to the coronavirus scare (at least in terms of ongoing commercial activity that is under threat until China returns to normal), an ongoing legal trend in IP disputes has in its own way made that gap seem a bit smaller. Especially for owners of US IP rights, who have long encountered challenges serving domestic Chinese companies in IP disputes filed in the US. In the traditional example, Chinese companies have traditionally been well-positioned to avoid being served with US IP complaints, aided at least in part by the Chinese authorities and their demands for strict compliance with the Hague Convention for international service of process. In fact, a well-worn tactic for smaller and midtier Chinese companies that do business in the US but are concerned about IP lawsuits has been to avoid opening offices in this country, so as to force any prospective plaintiffs to serve under the Hague Convention — thereby almost guaranteeing a six-month to two-year delay in an IP dispute even kicking off.

The challenges of serving Chinese companies have surely had a deterrent effect on IP owners hoping to bring suit against those companies for infringement. Which has led to more litigation against US customers of those Chinese companies. That approach helps solve the service issue, but often presents significant delay as indemnification issues are sorted out. At the same time, the increased direct-to-consumer activity by Chinese companies — particularly online — has put a greater premium on US companies being able to quickly take legal action in an attempt to stop infringement. While the online dispute resolution mechanisms offered by marketplaces like Amazon and Ebay don’t really implicate service issues because the Chinese sellers are easily identified by those platforms, it still remains a challenge for a plaintiff seeking redress in district court to effectuate service against Chinese infringers. Considering that the lone path to damages from those infringers lies in the court process, service remains a key issue of concern.

Thankfully for US IP holders, courts have increasingly been willing to allow for alternative service of process against accused Chinese infringers, despite the putative requirements of the Hague Convention. In just the latest example, Judge Boyko of the Northern District of Ohio authorized service by email — to the alleged infringer’s registered seller email addresses on Amazon, Ebay, and Facebook — on a Chinese company that in the Court’s words had thus far “chosen to ignore all communications from Plaintiff.”

In the case (N.D. OH Case No. 1:19CV1855,) filed by experienced patent plaintiff the Noco Co., the Chinese defendant was accused of selling infringing lithium battery jumpstarters on Amazon, Ebay, and through Facebook Messenger. Motivated to serve, NOCO had done extensive research on the location and contact information of the accused defendant, but was frustrated in every attempt to communicate with the defendant in the hopes of securing a waiver of service. Accordingly, the plaintiff asked the Court for permission to serve one of the Chinese defendants through that defendant’s registered email address on Amazon, Ebay, and Facebook, in the hopes of then getting the contact information of the second defendant as well.

Acknowledging that service pursuant to the Hague Convention was preferred, the Court nonetheless noted that email service is not prohibited under the Hague Convention — and was thus a viable alternative where the plaintiff had demonstrated diligent and exhaustive attempts to contact the defendant without success. Add this case to a growing body of law recognizing the inherent challenges of serving Chinese companies, where courts also acknowledge the commercial realities of Chinese sales activities in the United States — and are thereby willing to set aside the formalities of the Hague Convention in order to assist US IP owners in getting their IP complaints heard in a more timely manner. Especially where the Chinese defendant is clearly aware of the lawsuit based on direct contact from the plaintiff or through a third-party platform that the defendant is doing business with.

Ultimately, we live in a world where a US consumer can order all manner of gizmos directly from a factory in China and expect to receive that product in short order. Increasingly, courts are less willing to insulate those same sellers from reasonably quick service of process in the context of an IP dispute, just because they are based overseas in a country where service has traditionally been conducted under the Hague Convention. For US IP owners, being able to confront infringers as quickly as possible is a business necessity. Every time a court allows them to bypass service under the Hague Convention, it is a huge help. And another sign of a shrinking world.

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.

Kinney Recruiting is working with the DC office of a top AmLaw 100 firm to recruit a corporate associate with at least one year of experience to join its practice. Its attorneys represent companies in all areas of securities, corporate, and finance transactions and a candidate should have a background with a large firm’s M&A group.

This firm works with clients at every stage of the business cycle and associates are given meaningful hands on legal work at every stage of their careers.

To learn more, please apply to this posting, or send your resume to jobs@kinneyrecruiting.com.

Taking the bar exam is stressful enough. Registering for the exam shouldn’t be.

After joining the ranks of Uniform Bar Examination jurisdictions, the Board of Law Examiners created the New York Law Exam to test on NY specific law. The NYLE joined the MPRE as a test applicants were required to pass before sitting for the bar exam. To make it easy, all a prospective attorney needs to do is watch a mandatory video by the deadline and then take the NYLE.

The published deadline is today and the mandatory video is… unwatchable because the website is kerfunkered.

Multiple tipsters report that for the last several days they’ve been unable to access the mandatory video series. While there’s no official explanation for the outage, the volume of traffic in the days before the deadline is likely either the cause or a contributing factor. And you can’t blame folks for waiting until the last minute — the series clocks in at around 17 hours and most of the people we’ve heard from have been dutifully slogging through it and only had an hour or two left before technological calamity struck. According to a public chat post, one law school didn’t even alert students about the video until yesterday which would make for a rough dash to the deadline even if the site worked.

Users started getting “connection timed out” messages and being told “thank you for logging out” when they tried to respond to prompts. Some reported changing browsers improved the chances of a watchable video, but others couldn’t get anything to work. Folks on Law School Memes for Edgy T14s were reporting that they’d been told that if applicants are having issues they have to submit a verified petition signed by a notary describing the problem because bar examiners are the last people on the planet carrying a torch for the awesome eldritch power of a Public Notary.

As the quagmire continued, BOLE finally put out the notice:

Due to unexpected technical issues with a server the New York Law Course (NYLC) is currently offline. We are presently working on the server and as soon as updates have been completed the NYLC will be back online. The work will be completed as quickly as possible but at this time we do not have a specific time when the NYLC will be back online. We apologize for the inconvenience.

This was a useful announcement, however BOLE put it on their website, prompting one frustrated commenter looking for the notice to respond, “YOU CAN’T EVEN GET ON THE HOME PAGE!!” Sorry, it’s the mailbox rule.

Of course at the time of this announcement, BOLE still wasn’t extending the deadline. At some point before 8 p.m., the notice above was amended to declare that:

The Board is aware that many applicants have been attempting to complete the NYLC before the February 11th deadline to register for the March 2020 NYLE. This deadline will be extended after the NYLC is back online.

So no word on when yet, which is frustrating but better than extending it before the site actually works.

Good luck to everyone out there. Stay strong.

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.

* The New York Attorney General is suing DHS over restrictions on the access of New York residents to Global Entry and Trusted Traveler Programs. JFK and LaGuardia are a mess already… [Fox News]

* Boies Schiller is facing partner departures amid leadership changes at the firm. [American Lawyer]

* A lawyer has been suspended from practice for backdating a filing. Maybe this attorney hopped in his DeLorean and the papers were timely filed? [Virginia Lawyers Weekly]

* Michael Flynn’s disagreements with his former counsel have delayed his sentencing. [Talking Points Memo]

* Harvey Weinstein’s lawyer has confirmed that Weinstein definitely needs a walker and has not watched Curb Your Enthusiasm recently. Really need to check out the latest season of Curb. [Deadline]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The Zimbabwe government has for years maintained a ban on the importation or growing of genetically modified maize, but the current food shortages in the country have forced the government to change its policy stance. The ban on GM maize imports was lifted on the 31 January 2020 as the country seeks to improve local supplies following yet another poor harvest season.

Zimbabwe’s maize production fell by 53% y/y in the 2018/19 production season to 800,000 tonnes, according to data from the United States Department of Agriculture. This was far below the country’s annual maize consumption of between 1.8 and 2.0 million tonnes. Therefore, the country had to import at least a million tonnes of maize in order to meet the local supply requirements.

But the dearth of timely and credible data has made it a challenge to track the maize importation activity into Zimbabwe. Observing from reports of food shortages at the beginning of 2020, I am inclined to believe that the country was unable to import the required maize volume for the 2019/20 marketing year (this corresponds with the 2018/19 production season which was a drought year).

Zimbabwe imported 100,000 tonnes of maize from Tanzania in 2019, according to Japhet Hasunga, Tanzania’s Agriculture Minister, and 79,283 tonnes from South Africa between May 2019 and January 2020, according to data from the South African Grain Information Services. This data supports my view that Zimbabwe has thus far imported less than the required maize quantities to meet consumption requirements. The slow pace of imports might have been caused by fiscal constraints on the back of the country’s ongoing macroeconomic crisis. The stringent regulations on the importation of GM maize might have also contributed to the slow pace of imports.

South Africa had about 1.2 million tonnes of maize available for export markets in the 2019/20 marketing year which ends in April 2020. However, roughly 80% of its maize is produced from GM seeds. This means that South Africa was inhibited from supplying the Zimbabwean market under its stringent GM policy. This is evident from South Africa’s maize exports data; the country exported 900,585 tonnes of maize between May 2019 and January 2020. But Zimbabwe imported only a 9% share of this total volume.

With international humanitarian organisations such as the World Food Programme actively assisting Zimbabwe to avert the current food crisis, the lifting of the GM maize import ban could accelerate maize import activity into Zimbabwe in the coming months. The maize might originate from South Africa and other leading maize exporting countries such as the United States, Brazil, Mexico and Russia, among others, who have in the past exported maize to Zimbabwe.

The challenge for countries aside from South Africa and Mexico is that they are not major white maize producers, which is the preferred maize variant across southern Africa. Hence, the recent GM policy change will benefit maize exporters from South Africa and Mexico in the near term. Moreover, Zimbabwe’s maize deficit might not end in May 2020, which would have marked the end of its harvesting period. The country’s 2019/20 maize production season began on a bad footing because of delayed rainfall. The plantings were delayed and so far, the area planted and the expected maize harvest in the 2019/20 production season remains unclear, but on the lower end.

Fortunately for Zimbabwean consumers, neighbouring South Africa and other major maize producing countries are expected to remain maize exporters in the 2020/21 marketing year (this corresponds with the 2019/20 production season). The locust infestation in East Africa could limit surpluses from that region, but overall global maize exports remain awash. For instance, at the Agricultural Business Chamber of South Africa (Agbiz), we estimate that South Africa could see its maize harvest improving by at least 11% from the 2018/19 season, reaching 12.5 million tonnes. Here we’ve applied the preliminary maize planting data of 2.5 million hectares (up 10% y/y), at an average yield of 5.0 tonnes per hectare, which is plausible with current soil moisture.

This means South Africa could have more than a million tonnes for export markets in the 2020/21 marketing year, which begins in May 2020. Part of these supplies will help ease pressure on Zimbabwean consumers, and trade should be more free-flowing now with the GM ban having been lifted.

These measures could assist in the near term. In the long run, the Zimbabwean authorities should consider legalising the growing of GM maize in order for domestic farmers to produce higher yields such as South Africa, Brazil, the United States and other GM-growing countries.

The ultimate beneficiaries of such a policy shift would be consumers, as an increase in Zimbabwe’s maize production would lead to relatively lower prices. Moreover, in seasons of unfavourable weather conditions, GM crops wouldn’t be as badly affected as the conventional seeds that are currently grown in Zimbabwe. Indeed, necessity is the mother of invention. DM

Post published in: Agriculture

Why would a lawyer ever imagine it’d be okay to lie to and threaten a judge? This sounds like the exact opposite of how you’re supposed to act. And it looks like that was a lesson Georgia attorney James A. Dunlap had to learn the hard way.

Dunlap was temporarily admitted to practice in the state of Tennessee, but after his representation of a wannabe methadone clinic went off the rails, the Tennessee Supreme Court suspended him for one year. The court found that Dunlap had violated professional ethics rules against dishonesty and mandating candor to the court.

The disciplinary action stems from a company trying to open a methadone clinic in Tennessee. As part of that effort, in 2013, Dunlap filed an action with a state agency as well as cases in federal court for the clinic permits. Big Law Business has the details of just how Dunlap’s, erm, zealous advocacy for his client ran afoul of ethics rules:

After the state denied the certificate, Dunlap appealed and administrative judge Kim Summers stayed the hearing pending the outcome of the federal suits, the court said. But when Summers asked for updates on the federal cases, he stated there were no new developments when in fact one case had been dismissed and another had been stayed pending the administrative hearing.

When the state agency filed a motion to set that administrative hearing in 2014, Dunlap allegedly said to Summers there was no need for a hearing for the certificate and that he might have to ask the U.S. Justice Department to file an enforcement action against her, the court said. He also allegedly told her that if she held a hearing, she might be perceived as a “fixer” for the opposing parties and as “aiding and abetting” them.

The state professional responsibility review board did not take kindly to Dunlap’s actions, saying they amounted to “bullying and [were] prejudicial to the administration of justice.” They also found that Dunlap was “unapologetic and saw nothing improper in his conduct during the administrative appeal before Judge Summers.”

All of which is a long way of saying the Tennessee Supreme Court found a one-year suspension was warranted.

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).

When it comes to the internet, the online collection, use, and disclosure of personal data has become the rule, rather than the exception. Personal data is being collected and used by online providers in a myriad of ways, and for companies in the United States, such practices have been subject to only limited disclosures of their data collection and usage practices. Times, however, are changing. In 2016, the European Union adopted the General Data Protection Regulation that fundamentally updated data privacy practices in the EU (as I have written about most recently here and here). The United States, unfortunately, has yet to enact such comprehensive legislation federally. The states, however, may be forcing change, and California is relating the change with the California Consumer Privacy Act (CCPA). CCPA compliance, however, is not without its pitfalls, and it’s easier to slip into these traps than you may think.

By now, most of you have heard about the CCPA. Enacted in California in 2018, the CCPA created a plethora of enumerated consumer rights regarding access to and control over California residents’ personal information as collected by businesses covered by the law. More specifically, the CCPA gives California residents the right to (i) know what personal information is being collected, used, shared, or sold about them, (ii) know whether and to whom their personal information is sold or otherwise disclosed, (iii) access and review their personal information, (iv) opt-out of the sale of their personal information, and (v) non-discrimination in the level of service and pricing despite exercising any of their privacy rights. Such responsibilities under the CCPA, however, only apply to those businesses that meet one or more of the following criteria: (a) gross annual revenues in excess of $25 million; (b) buy, receive, or sell the personal information of 50,000 or more consumers, households, or devices; and/or (c) derive 50 percent or more of annual revenues from selling consumers’ personal information.

The reach of the CCPA cannot be underestimated — businesses outside of California are not necessarily outside the scope of the CCPA. More specifically, to the extent a business collects the personal information of California residents and meets the any of the requirements set forth above requirements, it is likely subject to the CCPA requirements. Why? Because the focus of the statue is to protect the rights of California residents.  Although a California statute, the extent of its reach becomes clear — for example, a business based in New Jersey that does business online with California residents and otherwise meets any of the business qualification elements set forth above will need to comply with the CCPA. Given the size of California’s economy (which has been ranked as fifth-largest in the world) and the extent of business contacts to that state, some could argue that the CCPA operates as a de facto federal law. Moreover, the CCPA also confers a private right of action to affected consumers against companies that violate the law, providing for statutory damages between $100 and $750 or more if such damage can be proven (all in addition to any declaratory or injunctive relief). In sum, the reach of the CCPA is extensive.

Given the scope and reach of the CCPA, it comes as no surprise that most  companies in the United States that do business with California residents and meet any of the qualification criteria are scrambling to comply. Such compliance, however, is not an easy proposition — care must be taken to address the nature of disclosures as well as the architecture necessary to respond to requests from consumers to know, delete, and opt-out within specific timeframes. This has led to a ton of questions regarding the fit of existing practices as well as the changes otherwise necessary for a business to comply with the CCPA. Although there is precious little guidance given the statute only became effective on January 1, 2020, the potential pitfalls that need to be navigated for CCPA compliance are far easier to identify. Here are three of the biggest issues to traverse regarding CCPA compliance that will require your company (or client) to tread carefully:

Being GDPR Compliant Does NOT Mean Your Company Is CCPA Compliant. It may come as a surprise to some, but GDPR compliance does not guarantee CCPA compliance. In fact, your company (or client) may have additional obligations under the CCPA. For example, the CCPA definition for “personal information” is actually more expansive than the GDPR. This difference alone may impact the data mapping that was performed under GDPR compliance efforts and whether additional qualifying data under CCPA is properly inventoried so the appropriate disclosures can be given. GDPR compliance is definitely a good thing, but simply does not guarantee CCPA compliance.

Compliance Favors The Turtle, Not The Hare. Given the scope of the CCPA, it’s easy to get caught up with moving as quickly as possible toward compliance. Although it’s good to grab the CCPA bull by the horns, ensuring the proper steps are being taken to achieve compliance is extremely important. The CCPA cannot be enforced by the California Attorney General until July 1, 2020, so at least there is time to achieve compliance without the threat of an enforcement action in California. That said, the dragging of feet is not an option either — determine where your client (or company) currently stands with regard to the CCPA-defined “personal information” it collects, how such information is collected, stored, handled, and disclosed and whether current policies meet those requirements. Be methodical.  Remember: Slow and steady wins the (compliance) race.

Right To Be Forgotten Does Not Mean Forget Your Policy. This point is worth stressing — too many companies fail to recognize that data privacy is an ongoing process. Once the policies implemented by your company (or client) have been updated to address CCPA requirements, those policies must not be set in stone. The CCPA may give the consumer the right to delete personal information held by businesses (or their service providers), but this “right to be forgotten” does not extend to the privacy policies of your company (or client). Revisit these policies on a regular basis to update them based upon guidance from enforcement actions, newly promulgated regulations or potential modifications to the statute.

Of course, the foregoing pitfalls aren’t the only ones, but are illustrative of the point that companies need to be methodically proactive in their CCPA compliance. The CCPA is forcing qualifying companies to take stock of consumer personal information in different ways than they may have previously done. Such companies need to address and update their personal information handling practices, but should do so carefully. There is a lot to consider regarding CCPA compliance, and any other approach may be a risky move. So take heed: it will be far easier (and less costly) to avoid these pitfalls than help your company (or client) to climb out of them.

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.