Category: News Feeds

It’s pretty clear the economic impact of the COVID-19 global pandemic is pretty bad. Biglaw’s been reeling — instituting salary cuts, reductions in partner draws, furloughs, and even layoffs to maintain their cash flow to weather the coronavirus storm. But beyond the prudent financial decisions most in Biglaw are willing to admit to, there are whispers and rumors that more is going on.

That’s right, it looks like stealth layoffs are coming back to Biglaw. Made popular during the 2009 recession, firms often feel it is a way to save face and cut costs at the same time. But while what we’re hearing is still in the rumor stage, Above the Law thought it best to give everyone a refresher on the insidious nature of stealth layoffs to help you spot it when it happens at your firm.

What are stealth layoffs:

Due to their, well, stealthy nature, they’re a little hard to define. But basically it’s when a firm wants to cut headcount but doesn’t want blowback from announcing actual layoffs. So, they’ll give the associates X number of months/weeks to find a new job and the firm may even couch the reductions in performance review terms, making those let go doubt their lawyering skills.

When are they used:

Well, pretty much all the time. But they’re the most prevalent during economic downturns. Rather than signal some perceived weakness, a firm tries to cut overhead without making a splash.

Why are they awful:

It’s not us, it’s you. That’s the message of the stealth layoff. Often the attorneys who find themselves suddenly out of work have not previously had a negative performance review. Despite that history, the firm decided they were the chaff that needed to be cut, never mind that in robust economic times they’d continue to receive good performance reviews.

Are firms using stealth layoffs now:

If the ATL tips line is anything to go by, hell yes. Some firms, in assuring associates that purely economic layoffs were not forthcoming, seemed to signal that headcount reductions in guise of performance review were on the table.

But the challenge is confirming exactly where they’re happening. The firm’s go to media response is that there are no economic-based layoffs (because they believe the line that they’re only letting go of associates because of performance issues). And by refusing to acknowledge to the fired attorneys that economics beyond their control are fueling the employment decision, they’re creating a sense of shame the firms depend on to keep news of their stealth layoffs from circulating. No one wants to tell the world they were fired for being a crappy attorney and that’s what firms are depending on when they feed that fiction.

So, please keep Above the Law in mind when attorneys are suddenly let go and the firm insists there’ve been no layoffs. You can email us or text us (646-820-8477). Even if we are unable to verify the move, we are listening.

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

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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).

Hey, Counselor No Pants, cut that out! No one on earth wants to see you at a video conference in your jammies, least of all Judge Dennis Bailey of the Broward County Circuit Court.

“One comment that needs sharing and that is the judges would appreciate it if the lawyers and their clients keep in mind these Zoom hearings are just that: hearings. They are not casual phone conversations,” His Honor wrote in a letter posted to the Weston Bar Association’s website. “It is remarkable how many ATTORNEYS appear inappropriately on camera.”

“ATTORNEYS?” Do tell!

“We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc,” he continued. “One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.”

So many questions! Were Mr. Sunsout Gunsout and Ms. Florence Nightgown at the same hearing? Would it have been preferable for the female attorney to get out from under the covers? If the Court objects to “ill-grooming” in April, exactly what does it expect will happen in May when we’ve all been cruelly separated from barbers and hair salons for two straight months?

And where besides the bedroom are parents of small children supposed to lock themselves for a few seconds of peace and privacy during a hearing? Not outside by the pool, apparently!

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit,” Judge Bailey warned. “So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

“I would want [attorneys] dressed showing some respect for their recognition that this is a court hearing,” the man who shows up for work every day of the year in a shapeless black smock told the Miami Herald.

In conclusion, no muumuus, no stubble, no PJs, no visible bedroom furniture, and NO SHOES, NO SHIRT, NO SERVICE.

A Letter from the Honorable Dennis Bailey [Weston Bar Association]
Broward judge tells lawyers to get out of bed and wear a shirt for Zoom hearings [Miami Herald]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

While Utah is on track to become the first state to shift to “diploma privilege plus” because of the logistical hurdles presented by the COVID-19 crisis with other jurisdictions openly considering following their lead, it was inevitable that we’d hear from the NCBE — the folks with the biggest vested interest in maintaining the bar exam. The organization that’s dominated the bar exam game since the 1930s released a report last week entitled “Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020,” and surprising no one, they take a dim view of anything that impacts their monopoly alternative licensing paths.

After offering the requisite lip-service to the plight of students who will enter the workforce without having an opportunity to take an exam and then be forced to leave their jobs  to prepare for a future test — which could be long off due to space restrictions — the NCBE proceeds to violently attack a bundle of straw they’ve heaped together.

Why, they muse, some diploma privilege proposals are silent on character and fitness review! Probably because these proposals all assume that existing character and fitness procedures remain unchanged… and have nothing to do with the NCBE anyway. How can attorneys move to a new state without the UBE!? Attorneys managed to survive without the UBE for the first couple centuries of American legal practice, so they’d probably find a way to survive afterward.

As those charged with the important responsibility of regulating the legal profession understand, public protection remains a priority even in this time of crisis. Diploma privilege in effect removes the public protection function vested in the courts and places it with the law schools, but with no independent, vetted, objective, or consistent final check on whether graduates are in fact competent to provide legal services. The public, and certainly legal employers, rely on passage of the bar examination as a reliable indicator of whether graduates are ready to begin practice.

No, it doesn’t. It removes the subject-matter competency function of the NCBE and local bar examiners and places it with the law schools. The courts would still evaluate character and fitness and, in many models of diploma privilege, the outcome of the applicant’s supervised practice period as part of executing the public protection function. And while subject matter competency plays an important role in public protection, the bar exam has always been a clunky way of ensuring it. Corporate lawyers cramming Family Law minutiae into their heads for a summer and promptly dumping it? Trusts & Estates lawyers showing their mastery of search and seizure caselaw? Law schools may fail to turn out “practice-ready” attorneys — because it’s impossible to do through subject matter instruction alone — but the bar exam does no better on that score.

In a thrilling victory for the power of tautology, the NCBE contends that the ABA’s accreditation process could never successfully replace the bar exam because the ABA wouldn’t be able to use bar exam results to make accreditation decisions. Of course!

Admittedly, law school accreditation would have to markedly change if the bar exam were replaced in the long-term. Coincidentally, this is what Wisconsin has already done — setting high, core competency standards for UW and Marquette and then allowing graduates diploma privilege admission. In fact, one could plausibly argue that the reason we have diploma mill schools out there ripping off students is because regulators have largely abandoned (or at least been sidelined) rigorous law school accreditation because they shrug and say, “we’ll let the bar exam sort it out” after students are $100K+ in debt. But for the bar exam’s insistence that it’s better than law school at creating lawyers, we’d have a better law school regime.

While this is not the place to respond to the unfounded and unsubstantiated criticisms that some commentators are directing at the bar exam….

I feel seen. Not to give the NCBE a little practice tip, but when you throw in adjectives like that it only risks flagging that you think the coming argument is too weak to stand on its merits. There’s a time and a place for adjectives and adverbs in adding flair, but when they just sit like puds — redundant ones at that — they’re better skipped.

In this case, they were unconsciously correct — the argument was weak. And more than a little racist and sexist.

Regarding disproportionate impact, it is true that differences in average performance on the bar exam tend to be observed across racial/ethnic groups. However, the same or greater differences in average performance across racial/ethnic groups also tend to be observed in performance in law school (law school GPAs), on the LSAT, and in undergraduate GPAs…. To say that the bar exam disadvantages particular racial/ethnic groups ignores the bigger picture of educational pipeline-related differences in performance that are observed in law school and prior to law school. These differences are not eliminated, nor are they exacerbated, by the bar exam.

Yes, academic achievement differentials have a great deal to do with disparities further up the pipeline. Throwing students under the bus in first grade compounds it and it’s difficult if not impossible for students to catch up by throwing more resources into higher education. But… what does this have to do with the outlined criticism?

The bar exam is functionally distinct from the other examples. Undergraduate GPAs, the LSAT, and law school grades are measures of relative achievement that exist because there’s some actionable value to the distinction — someone goes to Yale and someone doesn’t. But there is no Bendini, Lambert & Locke out there only hiring the person with the best bar score. The bar is a minimum competency test. The pool of applicants is roughly smooth by this measure. These are all law school graduates and even if there are lingering advantages and disadvantages that could be charted on a letter grade scale (an if that should not be given the sort of blanket treatment shown in this report) it doesn’t matter in a test when clearing the, pun intended, “bar” here. If there’s a marked difference in result here, it’s either the fault of the exam or the fault of predatory schools — which, as described above, exist largely because of the bar exam’s outsized importance to our licensing schemes.

The social responsibility concerns ring so hollow. Earlier in the report, over the span of two paragraphs, the NCBE goes from arguing that supervised practice would grossly discriminate against “first-generation law students from socioeconomically disadvantaged families” to arguing that it’s a perfectly fine solution as long as it ends in a bar exam. It’s almost as if the concern is less about those students than in maintaining the exam. Which, of course, is the whole point to this report.

Oh, and “for the ladies,” apparently you suck at taking multiple choice tests:

Similarly, gender differences in average performance observed on the bar exam are also observed in law school and on the LSAT: men tend to perform better, on average, on multiple-choice exams (like the MBE and the LSAT), and women tend to perform better, on average, on essay exams (like the MEE and MPT portions of the bar exam).

So it’s just too bad the results of multiple choice tests make up the bulk of the bar exam, a fact that a few pages earlier was hailed as the value of the bar exam because law schools and their essay tests lacked “quality and reliability.” Also, you know what the practice of law isn’t? A multiple-choice profession! Reliably testing the competency of a new attorney would require the complex problem-solving and argument crafting skills displayed by essays. But that would be too hard to test, so I guess the women have to suffer. Assuming there’s a value to this distinction they’ve casually tossed out there without citation, which we should not concede.

America isn’t ready right now to permanently move to diploma privilege admission. Sure. However, we’re more than capable of doing so with thoughtful adjustments like those proposed by the “diploma privilege plus” regime and that’s what has the NCBE so concerned that it turned out this screed. They understand that if the diploma privilege experiment manages to work, it casts doubt on the whole logic of the whole bar exam model. Maybe there is a continuing role for a bar exam, but it’s irresponsible at this point to just shrug off an opportunity to critically reconsider the licensing process from the ground up.

Earlier: First State Opts For Emergency Diploma Privilege Plus Admission

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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.

As the world enters an indefinite state of quarantine due to COVID-19, remote work has become the new norm. From Slack messages to Zoom meetings, cloud applications have become the lifeblood of business communication — accelerating their adoption rates like never before. Business leaders have had to think fast to keep operations afloat, and for many, rolling out these new technologies has been the key in doing so. 

But rapidly onboarding new tools at such a monstrous scale has created mass amounts of new data to govern. And governing data, even without remote work vulnerabilities, isn’t easy. The systems we stood up so quickly and the data we’re creating now, we may come to find are insecure and unpreserved in a couple of months. But before that happens, there are plenty of measures you can take to prevent this problem — and we’re here to tell you how.

The current situation 

Lucky for us, we can still operate anytime, anywhere with the use of cloud applications like Slack, Office 365, GSuite, Zoom, and more. We can send a message, share a file, or join a call at the drop of a hat. Yet, every time we perform an action within these applications, we produce data. Even under normal circumstances, enterprise data can accumulate fast. Now, take a mandatory quarantine forcing hundreds of thousands of businesses to work remotely? You can pretty much guarantee data production will skyrocket. 

Not only is our data accumulating rapidly, but it’s also accumulating in a ton of different places. From our chat platforms to our file-sharing platforms, to even our personal devices, our information is scattered, leaving it unorganized and undiscoverable. Put simply, it’s already easy for enterprise information to slip through the cracks, but our current situation makes it even easier. 

So what?

The bottom line is that our world went into crisis mode overnight. As a result, businesses may have missed certain configurations from these newer, non-traditional data sources that are vital to compliance and eDiscovery. Now that the dust has settled, it’s time to address any gaps. From future discovery requests to the rising heat of GDPR and CCPA, enterprises need to ensure their data is secure, accessible, and useful now more than ever. There’s no time to slack on due-diligence — the actions enterprises take now, will dictate their ease of data management in the months to come.

Step-by-step: How to establish control over your enterprise data

So how do we stop this runaway train of enterprise data? If you follow the steps below, you’ll be well on your way to securing, organizing, and finding the data you need amongst your newly adopted collaboration tools. Let’s get started:

1. Assemble the right team

The first step in tackling this initiative is assembling the right team. When managing this new surge of enterprise data, you’ll need a fair mix of IT and legal folks to create your “COVID-19 task force.” Recruit team members you know will be responsible owners of your new data sources throughout this time and beyond. These are the people who will act as liaisons between support teams and legal teams, ask the right questions, build processes, and assess the solutions that will make your tech stack enterprise-ready.

2. Outline security policies

To ensure your employees are using their new collaboration tools with security in mind, you’ll want to outline a company security policy. These are simply guidelines on how to use these tools within company security standards. Some guidelines might include how login credentials are shared, how sensitive information like PII is shared, password strength, and setting up two-factor authentication. Some tools are more vulnerable to security threats than others, so making sure employees understand these vulnerabilities is critical. If you already have a security policy outlined — great! As a next step, we recommend hosting a company-wide security training on all of your new tools to mitigate risk and make sure everyone’s on the same page.

3. Get to know user permissions

Different tools have different user permissions, and your new data sources are no exception. Whether you’re an admin, a super user, a member or a guest, each tool has their own take on user titles and the permissions they’re granted. Understanding what each user permission means from the get-go is key to understanding who has access to what. Not only is this important for efficiency’s sake, but it’s also crucial to data loss prevention (DLP), combating security breaches, and is a compliance must-have. When it comes to company-wide collaboration tools, responsible IT teams follow the Principle of Least Privilege, or only giving users the access they need to do their job. This reduces a company’s risk of compromising sensitive data, and is a good rule of thumb when it comes to user permissions.

4. Understand retention settings

Depending on the tool, there will be different default settings for data retention. Retention periods can last anywhere from five minutes to five years, so you’ll want to address this area as soon as possible to ensure it’s aligned with your company’s data retention best practices. With the surge of data being created, it’s important to outline the criteria for data to be preserved, archived, and deleted. Whether retention criteria is based on the age of the data (ex. five years old), the type of data (ex. Microsoft Teams messages), or a mixture of both, make sure it’s being enforced within your new tools to prevent data loss and compliance issues.

5. Understand data dynamics

Cloud collaboration tools have countless unique capabilities, therefore, they have unique data. When you think about everything you can do in Slack for example, there’s a lot to unpack: direct messages, channels, threads, file sharing, emojis, edits and deletes, and so much more. Typically, the more unique tools’ capabilities are, the more complex their dataset is to process and search across. However, by learning the ins and outs of your new tools now, you’ll be able to gauge how hard it is to find the information you need. You may come to find that you need to connect to Slack’s APIs for example, or outsource help for processing and search, but it’s better to find out now than six months down the line. 

6. Set up an eDiscovery plan

The data your company is creating at the moment could be relevant to an eDiscovery request in the coming years or even months. To make sure you’re prepared for what can be a tedious and expensive process, it’s a good idea to begin exploring the eDiscovery options your new collaboration tools offer. Don’t be surprised if a few fall short in the EDRM process, or require extra steps to process all that complex data we talked about previously. Luckily, there are plenty of eDiscovery softwares for new collaboration tools. Whether it’s Slack eDiscovery or Box eDiscovery, we recommend choosing the solution that’s compatible with most of your tech stack. This way, you’ll save time and money, and you’ll feel confident knowing you can collect from your new data sources when the time inevitably comes.

These steps toward enterprise data control may take time, but they’re time well spent. By doubling down on your preservation, security, and eDiscovery efforts now, you’ll feel more in control of your data throughout this tumultuous time, and come out on the other side better than before. 

About Onna

Onna is a data integration platform that centralizes enterprise information from today’s most popular emerging cloud apps. Built with a powerful API infrastructure, we help some of the biggest names in tech secure, access, and search across their information in an easy, streamlined way. Search across multiple apps at once, personalize retention policies, set compliance actions, collaborate in workspaces, export data into the review platform of your choice, and so much more. Once connected to Onna, your data is limitless.

If your organization has recently onboarded new cloud applications, we’re here to help you gain control and access of your data. Download our eDiscovery Guide for Emerging Applications to learn more or go ahead and contact us!

The hits keep coming for Biglaw firms thanks to the coronavirus pandemic, and this time, an Am Law 200 firm has found itself battered and bruised.

Sources tell us that Ballard Spahr, currently ranked at #91 in the Am Law 100, recently announced firmwide salary adjustments in light of the COVID-19 outbreak. We’ve been told the firm is cutting salaries by 10 to 15 percent for all employees, except for those who make less than $75,000 annually (i.e., staff members). Specifically, staff members will see a 10 percent pay cut, while associates will see a 15 percent pay cut. Partners are also bearing some of the brunt here, reducing their draws by 25 percent. In perhaps the worst news of all, we’re told that the firm will not be issuing its annual raises in July.

We reached out to Ballard Spahr several times for comment, but have not received a response. We will update this article if and when we hear back from the firm.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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

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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.

Just like that, another firm bites the dust when it comes to COVID-19 salary cuts.

Sources tell us that Am Law 200 firm Kelley Drye has instituted firmwide salary cuts to ensure its “economic vitality” during the upheaval that’s been caused by the coronavirus crisis. Kelley Drye is the 179th highest grossing law firm in the world, but as we know all too well, high revenue is no match for a pandemic.

Here’s an excerpt from an email (available in full on the following page) that all Kelley Drye employees recently received from James Carr, the firm’s chairman:

The economic impact of the coronavirus crisis is beginning. Our clients are focusing on their business needs first, as is expected, and we are seeing a slowdown in payment of our invoices. As a result, and given the uncertainty around when we might return to our offices and when all businesses will be operating at full capacity, Firm management will take the following steps:

• Equity partners’ draws will be reduced on a proportional basis by as much as 20%, effective April 30;

• There will be an across-the-board, prospective salary reduction of 10% for all other lawyers and employees earning over $100,000, effective May 15, 2020. Please note that no one subject to this reduction will be cut below $100,000 annually; and

• The July 1 administrative staff salary increases will be postponed.

Kelley Drye did not immediately respond to requests for comment. We will update this article if and when we hear back from the firm.

In his memo, Carr notes that these salary cuts come in addition to the firm’s earlier cost-cutting measures, including shortening its summer program, deferring the start date of their incoming first-year associates, and postponing the hiring of non-essential employees. Perhaps most importantly, according to Carr, “We hope to be in the position to revisit and possibly restore salaries to pre-COVID levels at some point in the future, once the crisis abates and our practice returns to its normal rhythm.” On that note, one distraught source said, “They’re never going back.” Ouch.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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

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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.

“The situation is difficult for many people, but it is better for me because I have a job. If I was not working, things would be worse.”

Loveness’ story

Loveness January is a 52-year-old widow who lives in Seke communal lands in Mashonaland East Province, roughly 50 kilometres from Harare. Her husband died in 2008 leaving her with two twins to raise who are in secondary school.

She works as a first aid assistant at a solar company where she earns ZWL400 ($25). Her salary is sent via mobile money to her phone, which means she has to pay a two percent tax on each transaction, further eroding her income.

“I want my children to further their studies, to eat good food, but the situation is so bad that we have resorted to having two instead of three meals a day,” she says. “We have stopped buying non-essentials like sugar.”

Loveness walks to work, which is roughly three kilometres from her home, to save a little more money.

Gardening and livestock rearing typically provide extra income for people in the communal lands, but this year has been particularly bad due to drought. Loveness’s well dried up, her maize crop failed, and she lost her three cattle to red water disease. She was forced to sell the remaining four goats to raise the exam fees for her two children.

Loveness doesn’t anticipate the economy will improve any time soon, and sees further hardship ahead. “The rainy season is upon us, but I can’t afford to buy seed or fertiliser,” she says.

Design patents are different. While that is something IP lawyers and their clients know, an information gap relating to design patents persists relative to their utility brethren. Thankfully, design patents are starting to garner more attention, driven in large part by younger academics interested in the interplay between design generally and IP law, as well as by a changing marketplace for consumer products. More on the former in a bit. As for the latter point, there are a number of reasons that design patents have become a more important piece of the IP picture — especially for IP owners in the business of selling products to consumers.

In fact, design patents are more attractive than ever to makers and sellers of consumer products. The rise of sales online — which will only accelerate as the prolonged COVID-19 lockdown turns us all into even more avid online shoppers — puts a premium on the “look” of products, which encourages manufacturers to develop unique design elements for their products wherever possible. Gotta have unique thumbnail pics to stand out, after all. Add in the ease of enforcing design patents on online marketplaces like Amazon and eBay, and you have a recipe for increased attention to design patents by online sellers. Furthermore, the consolidation (destruction?) of brick-and-mortar retail, which has resulted in fewer and fewer options for shoppers, also puts a premium on distinctive product design for the reduced subset of products blessed to vie for limited shelf space.

Design patents are also attractive to companies that seek to take advantage of quicker manufacturing times, as well as the compression of the supply chain that allows an American consumer to open the mailbox and find a gadget (usually made somewhere in China) wrapped in that magic thick silver masking-tape “envelope” many of us have come to know. Moreover, the lower cost and greater odds of allowance make design patents an alluring “starter IP asset” for smaller companies to pursue. Especially since there is no risk of being ensnared in Alice’s siren song when dealing with a design patent.

Enough about the qualities that make design patents important in the current marketplace. Let’s talk about how they accomplish their function. For a patent, this is usually a pretty simple analysis. On one hand, you have the soft marketing benefits of a patent — increased attractiveness of the IP owner to investors, or of the patented product to customers, etc. On the other, more fundamental hand, you have the basic raison d’etre of any patent — the right to exclude others from practicing the invention without permission. Also known as enforcement. While utility patent enforcement is a relatively open book (with many data services purveyors happy to sell subscriptions to you to make sure you never miss a page) things have traditionally been more opaque when it comes to design patent enforcement. True, there are many fewer design patent cases, and the ones that get filed are usually considered lower stakes (with some rare exceptions). But that doesn’t mean that IP lawyers get a pass from knowing as much as they can about design patent litigation anyway.

I was glad, therefore, to see an upcoming Alabama Law Review paper from Northwestern Law’s David Schwartz and current Kirkland associate Xaviere Giroud called “The Secret World of Design Patents.” While I commend the whole article, I was especially interested in the answers it provided to a number of basic questions about design patent enforcement, which will be discussed below in no particular order.

Let’s start with the “who?” — as in what types of entities enforce design patents. In contrast to utility patents, where nonpracticing entities seem to have cornered an ever-increasing share of the enforcement market, when it comes to design patents “the top asserted design patents are assigned to practicing entities, not NPEs.” This fundamental difference between design patent vs. utility patent enforcement manifests itself in “how” design patents are enforced as well. For one, the article recognizes that most “design patent litigation occurs between small and medium entities than any other pair category,” meaning that the David v. Goliath dynamic at the heart of many utility patent battles may be missing in the design patent context. Moreover, the authors surmise that design patents “may be sufficient to successfully litigate against counterfeiters, who intend to deceive consumers,” which is consistent with how we use our own design patent clients’ assets to police infringement online, for example.

The distribution (or “where?”) of design patent case filings also differs from that of utility patent disputes. As the article states: “Design patent cases are clustered in different districts than utility patent cases, namely the Central District of California and the Northern District of Illinois, rather than the Eastern District of Texas and the District of Delaware.” At a minimum, the locus of cases near design and manufacturing hubs — as opposed to courts that are perceived as patent-owner friendly — suggests that design patent owners are less likely to engage in forum shopping when bringing their cases. At the same time, it can be challenging for design patent litigants to conform their cases to the existing “local patent rules”-based case management approaches that have arisen in courts nationwide. Tellingly, the article suggests that the design patent bar could benefit from an addition of more experienced practitioners with a focus on design patents, as opposed to having design patent cases being handled by utility patent litigators as a matter of course.

Ultimately, there is a need for continued scholarship around design patents, especially as they increase in commercial importance. No longer can we afford to treat design patents as part of a “secret world” hiding in plain sight. Nor can we ignore the power of design patents to curb the counterfeit crisis, particularly when it comes to products ordered online. As the authors of the subject article correctly noted, design patent litigation deserves the same level of analysis as what utility patent litigation receives, with their article another incremental step in that direction. Because it is not enough to realize that design patents are different. Our clients depend on us to know how to use them wisely as well.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Another day, another round of salary cuts among some of America’s wealthiest and most well-known law firms. As opposed to conducting layoffs en masse like happened during the Great Recession, to combat the economic toll of the coronavirus crisis, many law firms have decided to institute pay cuts across all employee levels instead.

Today, we have news from Am Law 200 firm Smith Gambrell, which last year posted a record 17 percent increase in revenue to $133.4 million and a 32.4 percent increase in net income to $49.7 million. Unfortunately, these successes are no match for the COVID-19 storm to come. The firm is cutting pay for all employees by 10 percent and deferring partner draws by 20 percent. The pay cuts took effect on April 1.

Smith Gambrell has reportedly decided against furloughs and layoffs, even though it’s not feasible for some of its employees to do their jobs in a work-from-home setting.

The firm’s ethos is “we are in this together,” [chairman Stephen] Forte explained. “We want the team fully intact when the curtain comes down on the virus.”

“Prudent management in the face of this approaching tsunami-pandemic motivated us to get ahead of the curve, while we are all working hard to flatten it,” Forte said. He added that one of his favorite quotes, which he’s been repeating to Smith Gambrell’s lawyers and staff, is: “Disasters remind us that we depend on each other.”

Smith Gambrell reported record revenue and profit in 2019, and Forte said that for the first quarter, “we are well ahead of last year’s record performance.” That gives the firm a financial buffer as the pandemic’s economic toll continues.

On the bright side, Smith Gambrell has “committed to equitably restore lost compensation due to the adjustment when we see our way clear of the effects of this crisis.” At least employees have true-up bonuses to look forward to when this is over.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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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.