Category: News Feeds

New Jersey has become the fifth state in the United States to pass legislation allowing college athletes to commercially exploit their names, images, and likenesses for monetary gain and have the bill signed into law by its governor. However, as is the case with the four other bills signed by governors, these rights will not be provided to New Jersey’s college athletes for some time.

In fact, the “New Jersey Fair Play Act” seems to be the slowest of the bunch to give college athletes the same right that all other students on campus currently possess — the right to exploit one’s publicity. The final provision in New Jersey’s very briefly crafted bill indicates that the act shall take effect immediately, but it will only first be applicable “in the fifth academic year following the date of enactment.” Thus, it appears that college athletes in New Jersey will not actually possess the right to be compensated for use of their names, images, and likenesses until 2025, at the earliest.

Florida has a similar law, signed by Governor Ron DeSantis, that becomes effective on July 1, 2021, at which time college athletes may begin to earn compensation for the use of their names, images, and likenesses. The compensation must be commensurate with the market value of the authorized use of such publicity rights.

In Nebraska, any postsecondary institution can actually begin allowing its athletes the ability to exploit their publicity rights for commercial gain as soon as today. However, no schools have decided to take advantage of the provision in its “Nebraska Fair Pay to Play Act.” At the latest, the law requires postsecondary institutions to recognize such rights for college athletes by July 1, 2023.

The other states that have passed bills and had their respective governors sign them into law — California and Colorado — each have effective dates in 2023.

In the meantime, the federal government has been continuously setting up committee hearings to learn more about various college athlete national name, image, and likeness proposals; discuss what role the NCAA should have in the development of national name, image, and likeness rules; and often boast about their prior experience as college athletes themselves. The most recent hearing was held on September 15 by the U.S. Senate Committee on Health, Education, Labor & Pensions. Overall, Capitol Hill seems to still be failing to grasp the situation at hand, with some politicians seemingly not being able to understand that, in many sports, athletes cannot simply decide to play professionally in the United States whenever they wish (i.e., NFL and NBA).

With little faith that the federal government can or will prioritize the debate of actual legislation surrounding college athletes’ name, image, and likeness rights, the task will likely be left to the states or the NCAA itself. New Jersey is now the fifth state to sign legislation on the subject, and over 30 more states are considering similar legislation. While New Jersey’s delay in providing rights to college athletes may not put a lot of pressure on the NCAA to take immediate action, the association is staring at the July 1, 2021, effective date in Florida and wants to do whatever it can to avoid Florida schools having any advantage over other member institutions in other states.

---

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

There are lots of good reasons to fire Ernest & Young as your auditor: They’re not very good at it, for one, and you might want to sue them as a result for another, and you’re more concerned about the conflicts of interest that might arise therefrom than they are. Now, there’s a new reason: You’d prefer that massive $2 billion fraud you’ve been perpetrating not be uncovered.

“Whilst the primary responsibility for the prevention and detection of fraud is with the management and supervisory boards, audits should play more of a role in the future to detect material frauds,” Carmine Di Sibio, chairman and chief executive of EY Global, said in a letter sent out to clients and seen by The Wall Street Journal.

“Even though we were successful in uncovering the fraud, we regret that it was not uncovered sooner,” he said.

* The New York Attorney General has announced a settlement with Dunkin’ over a security breach. I don’t mind others knowing how much pumpkin coffee I’ve been drinking… [CBS News]

* Oral arguments at New York’s highest court were canceled earlier this month because one of the attorneys had a high temperature. [Brooklyn Eagle]

* The Justice Department is looking into whether John Bolton (not Michael Bolton) improperly divulged confidential information in his new book. [Fox News]

* A Texas lawyer has pleaded guilty to smuggling drugs into a jail. [CBS News]

* Facebook apparently may be subject to an antitrust lawsuit sometime this year. MySpace is still a competitor of theirs…. right? [Yahoo News]

* The family of Breonna Taylor has settled their claims against the City of Louisville, Kentucky, for $12 million. [CNN]

* A new lawsuit asserts Bud Light’s Lime-A-Ritas falsely suggest they have tequila. Maybe Bud can assert the “beer before liquor, never sicker” defense. [Fox News]

---

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.

Finally, the Functional PDF Software Lawyers Want and Need

Finally, the Functional PDF Software Lawyers Want and Need

Stephanie Wilkins

Professor Rick Hasen of UCI Law and the Election Law Blog joins us to talk all things election. Following up on his new book Election Meltdown, we cover dangerous media expectations, vote-by-mail rules, how ballots are processed, the “Blue Shift” and the impact COVID is having on an already strained election system.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to a retrospective survey of partner compensation data compiled by Major, Lindsey & Africa, from 2000 to 2018, by what percentage did compensation go up for top-earning partners?

Hint: For low level partners, compensation only went up 15 percent over that same time period.

See the answer on the next page.

E-Discovery software company Relativity announces this week the release of their Aero user interface, a sleek and powerfully new way to navigate documents and data in an industry-leading e-discovery platform. I spent some time recently with the product team and was privileged to see an early demo of the new UI. Because I have not logged into a Relativity workspace for a few years, I learned some things, and I think users will appreciate the new developments as well.

Remember all those tabs across the top of the interface? Gone. Remember how you had to scroll over or select another object to see more options? Gone. Menus have been moved to the left side of the interface in what can only be described as a more functional navigation pane. Click on the little hamburger icon on the bottom-left and it opens access to all menu options.

Rolled out in August to some customers and available more widely this month, Aero will be introduced first in the Relativity One environment.

I pressed the Relativity team on what exactly makes Aero Aero. For me, the name invokes thoughts of flight, spaciousness, and perhaps speed. For the development team at Relativity, the name Aero is not just marketing fluff. “This marks the biggest release of a product update in the history of the company,” Relativity Group Manager Kyle Disterheft told me. “This is more than just a face lift. It is the first release in which we demonstrate how big a deal the user experience is. Aero has the most new features of any prior release and has been tested more widely,” Disterheft added. More than 6,000 new workspaces containing over 700,000 documents are currently using the new Aero UI.

Aero is the culmination of ideas that help tell the story of how Relativity designs and builds software. From what I saw of the new UI, it appears that better, faster, more intuitive navigation was very much in mind. “We literally measured the linear feet of required mouse movement to enable faster navigation,” Disterheft said.

Navigation aside, Relativity has also fundamentally rebuilt the viewer to improve performance. New architecture allows the viewer to immediately load the first few pages of a document while the rest of the document is streaming behind the scenes. This improves document load times and makes page-to-page navigation nearly instantaneous. Relativity is reporting median document jump speeds have improved from 3.8 to 0.4 seconds and forms now load 40% faster.

I asked Liz Lieberman, the product marketing manager for Relativity, to describe a few of the tangible differences that users will see in Aero. “Modern aesthetics, a next-generation viewer, better workflow navigation, and faster performance.”

I did encounter a number of aesthetic alterations during a demo session. In addition to new fonts, colors, and icons, all of the layout and forms pages have been updated. “It’s not just the ‘look and feel’ we’ve updated,” Lieberman said.  “We’ve also improved how users navigate between pages and how they accomplish tasks — all of which follow a more logical workflow,” she added. “And eventually, we’ll be automating tasks like ingestion, processing, and OCR.”

Don’t take my word for it. I also spoke to several Relativity customers who have been using the Aero UI for several months. Liraz Kolnik, the e-discovery operations manager at Control Risks, described Areo as faster, more stable, easier to navigate. “The design of Aero is sleek and makes the platform easier to use. With Aero UI, the quality of life in the system is much higher. Navigation alone is significantly superior and allows the user to more simply and clearly navigate around a workspace.”

In a press release, Relativity’s Chief Product Officer Chris Brown said that one goal of the Aero UI was to improve the user experience by working with customers to improve the UI. Matthew Nelson, the director of litigation support at Littler Mendelson, said, “The Aero team really has done a great job in design and also responding to user feedback and suggestions.” Control Risks’ Kolnik also praised the Relativity development team for working closely with this team and listening to feedback.

Others are praising the Aero UI as well. Jenna Rooney, director of client services at Array (formerly Innovative Litigation) was incredibly enthusiastic. Her team has been using the Aero UI since April. “Relativity has made incredible changes and improvements,” she said. “Ease of use, less buttons; the improved functionality has been a game changer.”

Admittedly, I have not used a Relativity workspace for a few years. But from what I saw during the demo and what I learned from those I spoke to in the past few weeks, Relativity seems to have hit a new stride in software development — one in which customers have a voice.

To learn more about the Aero UI, register for Relativity Fest, the annual user conference for all things Relativity. This year’s conference is virtual and is entirely free to everyone.

---

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

This week, I continue my written interview with Rebecca Berrebi of litigation finance consultancy Avenue 33 LLC, regarding her experience in the legal industry and her decision to launch her new firm. Please see below for Rebecca’s answers to my second and third questions, focused on her view of the rapidly evolving field of litigation finance, especially in light of the stress on legal budgets presented by the COVID-19 pandemic.

As usual, I have added some brief commentary to Rebecca’s answers below but have otherwise presented her answers as she provided them.

GK: 2) Where do you see the litigation funding industry heading over the next few years?

RB: This largely unregulated industry is growing and evolving so quickly — the litigation finance market from six months ago is already different today. First, particularly in response to the pandemic, companies are becoming increasingly interested in using litigation finance as a tool for monetizing assets and smart accounting. Second, as more investors are recognizing the potential value of litigation as a non-market correlated asset, the funding class is expanding from the traditional, single-mandate third-party finance shops to include larger, multistrategy, and special-situations funds, as well as family offices. Finally, more and more law firms are opening up to the possibility of using funding as a way to grow their client base without risking their own bottom line.

But, with growth comes challenges. I expect litigants will ultimately demand more transparency into transaction structure and pricing from funders, and lawyers will face more stringent guidelines for dealing with conflicts, ethics, and confidentiality concerns. As recently as August of 2020, the American Bar Association released a controversial “Best Practices for Third-Party Litigation Funding,” suggesting guidelines that lawyers should follow when dealing with a case that is financed by outside sources; this type of proposed regulation and ensuing debate will continue.  While regional funders outside of the U.S., including the Association of Litigation Funders of England and Wales, have already developed, a larger collective of global third-party financiers, the International Legal Finance Association, just publicly launched as of September 8, 2020.

Despite a lack of a united influence to-date and public disclosure in the industry, at Avenue 33, we do, and will continue to, closely monitor the market and the players so we can advise our clients with well-informed, current information. We also keep up with the expansion of service offerings, so we know what additional providers may be helpful and cost-effective to supplement current efforts. And, as in any developing industry, using an industry expert as a consultant to advise on the particular concerns of the moment can only serve to diminish uncertainty and create value for all stakeholders.

GK: Rebecca makes a compelling case in my view for having expert guidance when it comes to litigation finance. Her characterization of the field (at least in the United States) as a “developing industry” is apt and there is definitely room in the market for someone with an insider’s perspective to consult on prospective deals. As anyone who has interacted with litigation funders knows, once the sheen of the music-to-a-lawyer’s ears of someone willing to pay their bills wears off, the hard work of arriving at a workable deal begins. In those discussions, it seems plain that having someone with experience in the funding industry on your side would be an advantage, or at least preferable to negotiating an unfamiliar contract on your end. Not only is the potential for mistakes minimized, but having someone like Rebecca on the team sends a clear signal to the counterparties that your side is approaching the endeavor with all seriousness.

GK: 3)  Are you anticipating more funding opportunities due to capital inflows into litigation funding because of COVID-19?

RB: Yes. The fact is, we are already seeing an increase of capital available as well as an increase in demand from litigants for funding, and I expect that trend will continue. It makes sense that many investors are seeking opportunities to put capital into assets immune to the volatile market swings that have ensued since the outbreak of COVID-19. Also, it is inevitable that when the global economy falters, there is a rise of disputes, leading to a proliferation of litigation and bankruptcy. I also expect that interest in litigation finance to grow among law firms who have not used funding before, as it is a very beneficial tool to stabilize the legal business and bring cases with the security of payment. Avenue 33 is well positioned to provide expertise to all new entrants in the market, saving them money and time.

GK: Not much to add here, since I am in agreement with Rebecca’s points on the impact of COVID both on investor interest in litigation finance as well as litigant/law firm demand for funds. In fact, the word is already out that there has been an uptick in seeking funding related to patent litigation over the past few months, a trend I am sure is being mirrored in other sectors. At the same time, even with more capital flowing into funder coffers, I don’t anticipate a material lessening of standards among funders when it comes to making investment decisions, especially in such a familiar area (by funder standards) like patent litigation.

My thanks to Rebecca for the insights and cooperation, and I wish her the best of luck with her new — and necessary — consultancy. It is always a privilege to hear from someone who is at the forefront of a key component of the modern IP litigation ecosystem, and I thank Rebecca for agreeing to this interview. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

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

---

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

Last week, word came down that Echo Street Capital Management was getting out of the hedge fund game. In and of itself, this is, of course, not unusual: 304 hedge funds closed their doors in the first quarter of 2020 alone. But Echo Street wasn’t having trouble raising money—it reportedly had a “waiting list of interested investors”—and its performance, while not particularly impressive this year with a 10% drop, has generally been “excellent.” Its founders aren’t retiring to play with his money in a family office; far from it: The firm will continue to run its long-only strategy and will launch a new long-focused vehicle that, frankly, sounds suspiciously like a hedge fund. There’s just one key difference: Running it won’t turn Echo Street’s managers into hollowed-out shells pining for death with each minute of the trading day.

We write now to urge that California administer the bar exam on October 5-6 without remote proctoring and without limits on what materials the student may consult during the exam. Indiana and Nevada took this approach in July for their bar exams. …

The bar exam always is a source of stress for those taking it, but the situation this year is dramatically different. We still are in the midst of the COVID-19 pandemic which has affected many of our graduates and their families. Many are dislocated by the fires and adversely affected by the smoke. We are in the midst of a national reckoning with racism and anti-Blackness. Administering the exam without remote proctoring and in an open book manner would decrease the stress for many taking the bar. In addition, there is a non-trivial risk of significant technical issues or snafus in the planned administration that would be substantially alleviated by this alternative approach.

— an excerpt from a letter signed by the deans of California’s 15 ABA-accredited law schools that was sent to the the California Supreme Court, requesting that the October bar exam, with questions provided by the National Conference of Bar Examiners (NCBE), be open book, without remote proctoring. The NCBE has a remote proctoring requirement for states using its testing materials, and has said that it “supports the California Supreme Court and its decisions regarding administration of the October exam … consistent with NCBE’s interest in jurisdictions administering a secure exam.” The California Supreme Court has yet to respond to the deans’ letter.

---

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.