Category: News Feeds

Sometimes, it’s all just a matter of timing, the confluence of various events coming together. That’s how I view certain events of the past week or so. First, the California Supreme Court lowered the passing score for the bar examination to 1390 from 1440, a permanent change. The hope is that lowering the passing score will allow more minority bar examinees to pass, especially given that this state is minority majority. We’ll have to wait and see. Fingers crossed.

This change comes just about the same time as the state bar released its report on what the members (whoops, licensees) look like, their composition, and how they are doing.  Entitled “Report Card on the Diversity of California’s Legal Profession,” I didn’t see any grade on the report card. My report cards always had grades. Didn’t yours? Maybe I missed something. Regardless, there’s no easy A.

Sad to say, the conclusions reached, based on the data accumulated, were nothing new. For example, the report said that the legal profession does not reflect the state’s diversity. Really?

The report said that the number of attorneys licensed in the past 50 years (i.e., since 1970), who identify either as a women or as a person of color had increased substantially during that period. Of course. As a woman admitted to the bar in 1976, a date that grows more remote with each passing day, it’s not surprising that there have been more women and people of color in the profession over the past 50 years. There should have been a lot more and a lot sooner.

Here’s another nonshocker: “the government and nonprofit sectors are the most diverse, while law firms are the least.” Please tell us something that we don’t already know.

The report summarized what those of us have observed over the years and already knew. Despite significant growth in the lawyer population of women and minority lawyers, it still has a long way to go to look like California. Since nearly three-quarters of attorneys work in the private sector, increasing the number of women and minority lawyers in this section will have a “transformative impact on the profession.” One can only hope.

Another nonsurprise: salaries for government and nonprofit attorneys were among the lowest, and women were overrepresented in these categories. Can you say, “rainmaking?” Can you say, “billable hour requirements?”

The report said that women of color, especially Asian women, were underrepresented in all leadership categories. It was also no surprise that women, people of color, LGBTIQA+, and attorneys with disabilities “consistently report low levels of satisfaction with workplace experiences.”

The second part of the report was entitled a “Call to Action.” Please, not another one. How many of these have we read, seen, and round-filed? I’m tired of exhortations to change, but where is the change? Is anyone else tired of this “same old, same old?”

The Call to Action is divided into two categories: “Workplace Leadership” and “Workplace Satisfaction.” Within those two categories responsibilities for both employers and for attorneys were listed.

For employers, it was the usual admonition to be mindful of increasing diversity within the lawyer ranks and “strive to ensure that new entry level hires reflect this diversity.” For attorneys, among other things, it was taking an active role in advancing inclusion and diversity by “participating in goal setting efforts and holding employers accountable for results.” Just how does a young associate or a junior corporate puppy hold general counsel or senior lawyers accountable for results? And what does that accountability look like? The report didn’t say.

The category of Workplace Satisfaction reads like every report on diversity and inclusion. Employers “must demonstrate a commitment to increasing opportunities and improving the workplace culture for women, people of color, LGBTQIA+, and persons with disabilities.” Blah, blah, blah. That commitment must take the form of hiring, retention, providing interesting work opportunities, mentoring, and the like. In firms, it’s also teaching rainmaking, because without that skill, no one will advance.

The report called upon employers to be curious about what the attorney wants to do, (e.g., career development and the like). They also need to conduct regular salary and compensation reviews to keep pace with the market.

Attorneys need to learn how to advance in the institution and who is ready and able to provide the information and the mentorship needed to navigate the perils and precipices of the organization. It’s learning how to work with the client business people, the decision-makers, so that they will come to trust and respect your advice, even if they disagree with it (and that happens frequently).

The bar reminded attorneys and leaders in the profession that everyone has the responsibility and opportunity “to influence and advance a diverse workplace culture that supports the recruitment, retention and advancement of a diverse workplace.” Platitudes. Tell that to diverse lawyers who are not fully represented in the profession, let alone the leadership ranks.

The only way to influence and advance a diverse workplace culture is to insist that client matters are staffed with diverse teams and whose members are given opportunities to shine. (I’m talking to you general counsels and all others who assign matters and have either the ability or input as to who gets work.)

As an aside: remember when the state bar announced a pilot program to help bar examinees get ready for the exam? The bar has announced that this online program is showing positive results and that the program has improved the likelihood of bar passage up to 10 percent, which is nothing to sneeze at. Given the lowering of the cut score, that “up to 10 percent” could make a difference.

Interested? Online registration for the California Bar Exam Strategies and Stories Program is available until July 31 to all registrants for the October bar exam. Go for it.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

The coronavirus crisis has ravaged the Biglaw scene, with salary cuts, furloughs, and layoffs abound. Some firms are delaying or reducing bonuses, and others are eliminating bonuses (and salary increases) entirely this year. Given the economic fallout of the pandemic, it seemed unlikely that any firm would be offering special bonus payouts — especially firms that had already slashed salaries across the board.

But that’s exactly what’s happening.

Sources tell us that Ogletree — a firm that reduced pay for equity partners (by 20 percent), associates (by 15 percent), and highly compensated staff (by 10 percent) for the remainder of 2020 — is offering a special bonus of $10,000 for associates who bill 1,700 hours in 2020. Associates who bill 1,900 hours will receive an additional $10,000 on top of the special bonus, and those who are able to somehow exceed 2,000 hours during COVID times will qualify for a bonus based on a percentage of their salary (whether that’s their salary before or after the reduction is another question).

In a brief memo about these bonuses (available on the next page), C. Matthew Keen, Ogletree’s managing shareholder, said, “While it is difficult to know what the future will hold, I hope this step demonstrates the firm’s commitment to treat all of our lawyers fairly while recognizing the economic challenges of the current situation.”

What would’ve been really fair here would’ve been for Ogletree to offer this bonus without an hours requirement. Instead, the firm is essentially asking its associates to work even harder to bill hours that may not be available for the chance to see some extra cash — cash they were originally due anyway that’s now going to be taxed as a bonus instead of as regular salary. Don’t expect these bonuses to catch on at firms at the top of the Biglaw heap, because they never cut salaries in the first place.

We reached out to Ogletree for comment, but have year to hear back.

Best of luck to associates as they try to recoup some of the money they’re losing due to the salary cuts through these special bonuses.

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm announces any type of bonus payment for associates, please text us (646-820-8477) or email us (subject line: “[Firm Name] Bonuses”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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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.

Ave Bar Examiners, morituri te salutant!

It’s disputed whether or not gladiators ever saluted anyone with the famous “we who are about to die” language, but it’s a fitting quote for contextualizing the July bar exam administration. Multiple states went forward with exams this week and the results have been mostly surreal and terrible.

This post will serve as your July bar exam coverage hub. We’ll be populating this post with links and social media reports throughout the day.

Now let’s breakdown the news so far…

Not All Hacks Are Bar Examiners

Michigan’s online bar exam crashed yesterday morning and by the end of the day they’d given up on the whole schedule and just gave out the passwords to all the modules at once. It was a chilling omen for the jurisdictions still committed to an October online exam.

But Michigan’s… defense?… is that the software didn’t crash on its own. According to ExamSoft, the vendor running the test, they were the victims of an elaborate cyberattack!

Assuming this is true — and with Indiana’s online exam, run by rival vendor ILG, still not working Occam’s Razor suggests this is really just an inherent problem with the platform — wouldn’t this be worse? If online bar exams are this easily hacked, doesn’t it spell doom for all of the upcoming exams? And even if all of the applicants’ personal data remained secure this time, what confidence is there that this will remain true next time? Remember, Michigan was the only online bar exam this week, meaning ExamSoft could devote immediate attention to resolving the problem. In October, we’re planning on multiple online exams with orders of magnitude more applicants running simultaneously.

Anyway, more about yesterday’s crash here: Today’s Online Bar Exam… Has Crashed

In True Exams The Smallest Distance Is Too Great And The Greatest Distance Can Be Bridged

For those taking the exam in person, many were stunned to learn that the bare minimum of social distancing… isn’t all that distant. In fact, it can appear downright crowded.

Read more about the cramped seating in Montana here: Bar Exam ‘Socially Distant’ Seating Doesn’t Look Much Different Than Its ‘No Cheating’ Seating and North Carolina here: This Is What A Socially Distanced Bar Exam Looks Like… Do You Feel Safe? And check out the report on North Carolina’s happy fun time maskless lunch here: Bar Exam Lunch Appears To Be A Maskless Mess

Who Was That Unmasked Man?

Bar examiners were SUPER SERIOUS about wearing masks during the exam… for about 5 minutes.

Virginia had the same problem:

And North Carolina:

Remember to hit us up at tips@abovethelaw.com with any tips you have about the bar exam administration. We depend on you!

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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.

Departing from the Trump administration in a blaze of glory and harsh words for one’s former masters (and, preferably, a book deal) has been the quickest way to go from sworn enemy of what is good and right and decent to a perceived champion thereof, whatever one’s former crimes against the republic and its citizens. So it was with Geoffrey Berman, the former top federal prosecutor in Manhattan, who caused enough of a fuss on his way out to earn the title Hero of the Pearl-Clutching Moderate Left and ensure that, whatever threats against it Attorney General Bill Barr made, he’ll have a perfectly lucrative and secure career in retirement from federal service. It’s no matter that it seems—even in his own words—that Berman was pushed out not because of his prosecution of the president’s former lawyer or in an effort to obstruct the investigation into the president’s current lawyer (who after all happens to be a former law partner of one Geoffrey Berman), but in a typically Trumpian hamfisted effort to find a new job for a presidential golfing buddy without actually checking with all parties involved. Nor does it matter that Berman was Trump’s handpicked choice (not that he ever bothered to get around to actually nominating him) to replace another fired Manhattan U.S. Attorney, one who probably did actually pose a threat to the corruption and graft and self-dealing that Trump was planning, to the extent that one can call anything the president does “planned.”

* Rapper Master P’s lawsuit against a marijuana investment firm has gone up in smoke. Guess the chances at success were just a pipe dream, and the arguments were half baked (I can go all day). [GeekWire]

* Although Mitch McConnell may be nervous about a large amount of COVID-19 personal injury lawsuits, only a small number of such cases have been filed to date. [Politico]

* Check out the list of Billboard’s top music lawyers for 2020. [Billboard]

* Attorney General Barr had some heated exchanges with House Democrats at hearings on the Hill yesterday. [USA Today]

* A criminal defendant may receive a new trial because a juror who is a lawyer did his or her own legal research on the case. This attorney should know better… [ABA Journal]

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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.

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

Despite being being associated with the Bronx and the other New York professional baseball team, Alex Rodriguez and Jennifer Lopez are reportedly making a bid to buy the New York Mets. What elite Biglaw firm, which handled other legal work for the pair, has the engaged couple tapped for that representation?

Hint: The firm previously represented hedge fund bigwig Steven Cohen in his failed attempt to acquire an 80 percent stake in the Mets. Cohen will reportedly have to find new representation to reenter the Mets bidding.

See the answer on the next page.

If you want a detailed account of what has been happening in Portland, Oregon, from the very beginning in fact, look no further than this long and thoroughly detailed piece by journalist Robert Evans. Even with such detail, there are many, including the current president, who do not care to understand or intentionally misrepresent the facts there. With all that is going on in this country it is understandable that many might not care about Portland, but as far as this president goes, his misrepresentation is not at all surprising. This is a president known to portray areas of the country as literally “rat-infested” hellscapes, despite all available evidence existing revealing the contrary.

The reality in Portland, however, is that over the past several weeks crime has been lower than average. Indeed, up until a couple of weeks ago even the protests in Portland were decreasing. Until the feds showed up that is. Using what can only be best described as alarming and deeply troubling tactics against the protestors. In response to criticism of these tactics (in which camo-clad federal agents snatched a peaceful protestor off the street and put him in an unmarked van), the acting head of the Department of Homeland Security appeared ignorant of what the Fourth Amendment is, or what it guarantees.

It used to be that this sort of jack-booted thuggery from the feds, even when the people on the receiving end were wrong themselves, was something groups like the NRA expressed outrage against. J.D. Tuccille in Reason sums up the hypocrisy going on here perfectly:

Now, violent protests — riots — are spreading beyond Portland to other cities. The federal government’s minions have successfully provoked a nasty reaction in Seattle, Austin, and elsewhere.

That was true in 1995, too. The NRA got its biggest pushback on criticism of federal agents after the Oklahoma City bombing, which was planned and carried out by extremists outraged over lethal federal abuses at Ruby Ridge and during the Waco siege. Then, as now, brutal federal tactics provoked a violent reaction with which defenders of the federal government tried to associate critics of official misconduct.

That’s a shame; if the critics had been taken seriously, we might have avoided more violence and loss of life. That is, correctly calling out “jackbooted thugs” no matter who their targets are could be a good way of trying to head-off a cycle of reactive violence, if the warnings are heeded.

But we live in a time when too many people are concerned about the treatment of their tribe rather than equal protection and decent treatment for everybody. An unfortunate number of gun rights supporters and people on the right who, quite rightly, raged against abusive ATF agents in the past are quiet about or even supportive of federal agents busting the heads of protesters.

To be fair, there is strong evidence we are all victims of the Moralistic Fallacy: Where we reject substantiated evidence in favor of our own moral intuitions. Nevertheless, the best bulwark against this fallacy/bias/trait is still universal rights that, in practice, should not be applied depending on whose ox is being gored.

The good news is that many, including those within the federal government are standing up for these universal rights. As I write this, Army National Guard Major Adam D. DeMarco has released excerpts of his statement to Congress (that I would encourage everyone to read) regarding the violent ejection of peaceful protestors from Lafayette Square so the president could take a photo-op. According to DeMarco, the demonstrators were “engaged in the peaceful expression of their First Amendment rights. Yet they were subjected to an unprovoked escalation and excessive use of force.”

I know how simplistic and cliché this might sound but maintaining our civil liberties simply requires those on the inside and out to stand up and state the obvious as DeMarco and the majority of peaceful protestors in Portland and elsewhere have. Of course, it would be foolish to expect everyone to do this or for hypocrisy to end. But there can be little doubt that public opinion has turned in favor of today’s protestors, unlike yesterday’s. In other words, the time has never been riper to vocally and peacefully defend our rights against jack-booted thuggery.

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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.

In patent monetization circles, patents asserted by (or even just sourced from) leading research universities are among the most sought-after, yet elusive, assets there are. Driving the desirability of university-sourced patents for erstwhile licensors are a number of unique characteristics those patents often demonstrate. There is tremendous jury appeal, for one, in patents sourced from brand-name research universities, partly because of the goodwill associated with their status as bastions of research and education, as well as the perception that academic inventors are truly at the cutting-edge of their fields. Add in that the profit motive is not automatically associated with universities the way it is with corporations (never mind NPEs), and juries seem inclined to recognize innovation arising out of universities even more favorably. As a result, it is no surprise that university-owned patents have led to some of the biggest patent verdicts in history.

Attracted by the hope of replicating those verdicts, a host of patent monetization players are ready and willing to pitch universities on patent assertion. Propelled by the rise of litigation funding, as well as patent marketplaces like Cypris showcasing university patents, entities from law firms to NPEs are approaching universities with confidence, hoping to convince tech transfer offices that patent monetization can lead to revenues for their institutions. Considering the pressure on those tech transfer offices in light of the enrollment and financial challenges presented by the COVID-19 pandemic, it is not hard to imagine that we stand at the precipice of a golden age of university patent assertion. Likely by a host of different types of plaintiffs, from the university themselves, to NPEs that have acquired university patents, to companies that have taken exclusive licenses to university patents for the primary purpose of commercializing the underlying technologies.

One of the challenges for assertion of university patents, however, is that whenever there is any transfer of rights from the university to a patent owner or exclusive licensee, standing issues can arise that can become a problem when part of the reason the university divested or licensed the patent for assertion to a third-party is because the university itself has no interest in participating in patent litigation, even if the litigation costs are being borne by someone else. If confronted by that fact pattern, an alleged infringer will no doubt look to standing as an issue of interest and a potential weak point to exploit against a university-sourced patent. In fact, a 2018 district court decision out of Texas had previously provided defendants with a roadmap for the successful use of a standing defense to get a patent case involving a university-sourced patent dismissed.

Until last week, that is. In a split decision, featuring the rare situation where all three appellate judges on the panel issued written opinions, the Federal Circuit recently overturned that Texas district court decision, finding that there was an abuse of discretion in the decision to dismiss the case because the 11th Amendment sovereign immunity enjoyed by the patent-owning university precluded its involuntary addition to the case as a plaintiff.

A mouthful, I know. Let’s set the scene. In the case, GENSETIX, INC. v. BAYLOR COLLEGE OF MEDICINE, patents that originated with the University of Texas related to cancer immunology ended up exclusively licensed to Gensetix. In 2017, Gensetix brought suit against Baylor, alleging infringement by Baylor, the new employer of the inventor on the patents Gensetix held the exclusive license in. Even though Texas had a contractual obligation with Gensetix to assist in infringement litigation, Texas declined to join the lawsuit as a co-plaintiff. Going further, Texas filed a motion to dismiss, asserting its sovereign immunity as a basis to avoid being forced into the lawsuit involuntarily.

As the defendant, Baylor pressed the issue even further. It argued that Texas was a necessary co-plaintiff, since Gensetix did not own all the rights in the patent. And since sovereign immunity barred Texas from being added to the case as an involuntary co-plaintiff, the case could not move forward against Baylor as a result. The district court agreed, dismissing the case. But the Federal Circuit found otherwise. The majority agreed, as an initial matter, that sovereign immunity applied to Texas, since unlike other state-owned universities who were found to have waived their immunity by asserting their patents, Texas had made clear from the get-go it had no interest in participating in Gensetix’s lawsuit. But while Texas couldn’t be added as an involuntary plaintiff due to its immunity, that did not mean that the district court was right to dismiss the case. First, there was no prejudice to Texas if Genestix’s lawsuit went forward, since the interests of both parties were aligned — both would see financial benefit from a successful result, for one. Next, the contract between the parties precluded Texas from filing a second lawsuit using the patents, considering that Gensetix had already exercised its rights to bring suit. Finally, since Texas was a necessary party, Gensetix had no choice but to try to proceed without Texas. Taken together, the Federal Circuit majority determined that equity principles compelled a result where Gensetix would be allowed to move ahead with its case — despite Texas’ immunity.

In concurrence, Judge Newman disagreed that Texas should have enjoyed sovereign immunity in light of its contractual obligations to Gensetix, but agreed that the case should proceed with or without Texas as a plaintiff. Conversely, Judge Taranto agreed that Texas enjoyed sovereign immunity, but dissented to the finding that the district court had incorrectly dismissed the litigation for failing to join Texas as a result of that immunity. In his view, while Genestix could have a claim against Texas for breach of contract, Texas’ concern about prejudice to its patent rights because of Gensetix’s assertion could not be ignored. Put differently, if Texas wanted to put its patents at risk, it was free to do so, but the decision to waive its sovereign immunity belonged to it alone — and no waiver was required just because a licensee wanted to advance a lawsuit.

Ultimately, the Gensetix decision will likely prove an important one as assertion of university patents becomes more popular with time. The analysis of sovereign immunity as it relates to standing, along with the consideration of whether all substantial rights were given over as part of the supposed exclusive license provides direction to universities and their monetization partners on how to structure deals to avoid standing issues, while allowing the university to preserve its sovereign immunity if it so desires. At the same time, the decision also highlights the complexities inherent in universities partnering with third-parties when it comes to patent assertion. Whether this decision will encourage more universities to go it alone is up for debate. College students may not be sure if they are going back to class. But it is a good bet their schools are considering whether to put their patents to work, COVID-19 be damned.

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.

Crimes of dishonesty or breach of trust have long been no barrier whatsoever to a long and lucrative career as a broker, thanks to FINRA. However, due to the fact that they are subject to an actual regulator that is bound by a law, for 70 years such actions have blocked anyone guilty of such from getting a job as a bank teller or greeter—forever—without written permission from that regulator, the Federal Deposit Insurance Co.

That’s all about to change, thanks to the alignment of the Trump administration’s last-minute deregulatory frenzy, the general desire of his regulators to shirk responsibilities like processing applications for the aforementioned permission, a certain permissiveness towards those things that have defined this president and his life, and, unusually, a genuine desire to do the right thing and open up opportunities to those blocked by a youthful indiscretion, perhaps.