Category: News Feeds

The attacks on the post office by Donald Trump and his army of nouveau authoritarian Republican goons are based on only one thing: voter suppression. Like he always does, Trump said the quiet part out loud the other day, and made yet another public announcement that would have been an administration-ending scandal for anyone else had it been discovered in a secret email: Donald Trump said he is trying to deny funding to the Postal Service in hopes of stymieing its ability to make mail-in voting work during the election this fall.

In their other go-to strategy of “throw everything at the wall and see what sticks,” Trump and his allies have also claimed repeatedly that the Postal Service “is in a financially untenable position,” and that Trump’s postmaster general is only gutting the agency he was tapped to lead in an effort to “rein in expenses.” That is a lie. The current Postmaster General Louis DeJoy is a major Trump donor, is the first postmaster general in nearly two decades who was not a career Postal Service employee, and is trying to ruin the mail not because he gives a damn about expenses, but because Trump thinks keeping people’s votes from counting will help him win the election.

It’s sad. A bought-and-paid-for political hack sits in the office once occupied by Benjamin Franklin, who was appointed as America’s first postmaster general in 1775. And if you know your history, you know that means what we now know and love as the United States Postal Service predates both the Declaration of Independence and the U.S. Constitution.

But when the Founders did finally get around to effectuating our Constitution in 1789, they were sure to make room for what even people centuries ago considered an essential government service. Article I, Section 8, Clause 7 of the United States Constitution is known as the Postal Clause, and it gives Congress the power “To establish Post Offices and post Roads.”

Note that the Postal Power doesn’t include any caveats like “as long as the Postal Service generates enough revenue to cover its own expenses.” That’s a weird way to think of a government service — any government service. Imagine if we started cutting the military every time we called attention to the fact that it doesn’t generate a profit.

Nonetheless, the Postal Service has been the victim of decades-long attacks pertaining to its fiscal situation. This helps make the current postmaster general’s excuse for his actions sound a bit more plausible. The Postal Service has also been subjected to a lot of weird funding-related requirements by lawmakers over the years, like having to prefund its retiree health benefit payments. That is not required of any other public or private entity, and it actually worsens the current financial situation of the Postal Service.

Still, I’d say the Postal Service is doing a pretty bang-up job on saving taxpayers’ money compared to other federal entities. For fiscal year 2019, the U.S. Postal Service reported operating revenue of $71.1 billion, compared to operating expenses of $79.9 billion. $8.8 billion is a lot of money. But a budget deficit of $8.8 billion doesn’t sound so bad when you consider that U.S. military spending for 2019 was about $718.69 billion, which was not offset by any revenue at all.

The mail is a service that every American is using, has used, or will use at some point in the future. That can’t be said about many government services. Of course, the people mailing things should have to pay for delivery of their things, and yes, those payments should help offset the costs of the Postal Service. But the Postal Service is not a business, and it never was. The Postal Service has been integral to our democracy since before the founding of our democracy. It should not matter whether the post office generates a profit.

The Postal Service has fulfilled many roles since the birth of our nation. This year, hopefully, it will allow millions of us to vote safely without spreading COVID-19. But don’t buy the lies from the Trump administration about cuts and mail shutdowns being the result of a budgetary crisis. If we want a government service funded, all we have to do is fund it. The attacks on the Postal Service are really about voter disenfranchisement, and nothing else.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

August is almost over, and thanks to the coronavirus crisis, Biglaw firms have had their fair share of summertime sadness over the austerity measures put in place to combat the economic downturn caused by COVID-19. After enduring salary cuts, furloughs, and layoffs, associates and staff at many Biglaw firms have been waiting for the day when their lives would return to normal. Months have passed, and some firms are now walking back their cuts.

About four months ago, Sheppard Mullin — a firm that placed 54th on the latest Am Law 100 ranking — conducted two rounds of austerity measures, first furloughing staff and later putting all of its employees’ salaries on the chopping block. If you recall, those cuts were 12 percent for associates, special counsel, and staff attorneys, while staff members making more than $90,000 had cuts of 10 percent and staff members making between $70,000 and $90,000 saw their salaries cut by 5 percent. The firm said the partner cuts would be at a “meaningfully greater percentage.”

Now, employees at Sheppard Mullin are finally receiving some good news on the salary front. Here’s an excerpt from a memo that was sent out earlier this week (available in full on the next page):

Because of our strong performance the Executive Committee is reducing by half the COVID-related compensation adjustments for Associates, Special Counsel, Staff Attorneys, and Staff that began in May.  The 5% and 10% reductions absorbed by some of our staff will become 2½% and 5%, and the 12% reductions incurred by our Associates and most of our Staff Attorneys and Special Counsel will be reduced to 6%.  The changes will all be effective the payroll period starting August 31, 2020, paid on September 18, 2020.

The new percentage reductions are scheduled to stay in effect through the end of 2020.  The Executive Committee will continue to monitor our performance each month, and depending on results and our view of the pandemic’s impact on the future, sooner adjustments may be possible. As stated at the time of the reductions, our Partners have pledged to take the greatest burden on compensation during this COVID-affected business cycle.

We’re sure those impacted by the salary news at the firm must be thrilled –and wondering when their salaries will be fully restored. (On the flip side, all of the firm’s secretaries, except in Chicago and Washington, DC, will remain on its workshare program until the end of the year, and only two of the 51 employees who were furloughed have returned to work.)

Let’s hope more firms are able to roll back COVID-19 austerity measures.

(Flip to the next page to read the memo in full).

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.

When the SEC last month announced plans to effectively cut the number of 13F disclosures of hedge fund stock holdings journalists have to play with from a few thousand to a few hundred, we thought of it more as an amusing little parting gift from Jay Clayton to his once and future clients than something to get really worked up about. After all, as even Jim Cramer knows, the usefulness of these filings is at best questionable. After all, by the time they are made—no later than 45 days after the end of a quarter—it’s highly unlikely that they offer an accurate picture of what a particular hedge fund owns at the moment of their release. Indeed, it’s entirely possible for a hedge fund to sell everything on the first day of the next quarter and build an entirely new portfolio containing none of its former holdings, making as stark as possible the fact of what a 13F is: a snapshot—and a very old one by the time of its disclosure at that—of what a hedge fund held at a specific, increasingly distant moment, with no bearing on what said fund is actually doing now, or has been doing for the last six weeks. Plus, let’s be honest: No one really cares much about what a hedge fund with less than $3.5 billion was doing a month-and-a-half ago, and so all of the celebrity portfolios you’d like a peek at will still be coming to you anyway. (That all being said, 13Fs are the only window the public gets into these things, and for all of their out-of-dateness Goldman Sachs has managed to build a pretty successful portfolio out of them.)

* A New York attorney, who billed himself as the “lottery lawyer,” is accused of swindling lottery winners out of millions. Hey, you never know…your attorney’s allegedly bilking you. [NBC News]

* The top employment lawyer at Target is going to be the new top attorney for Minneapolis. [Minneapolis Business Journal]

* A suspect in Florida walked out of a hospital just hours before he allegedly killed an Orlando-area attorney. [Fox News]

* A ton of states are suing the United States Postal Service over anticipated delays in mail delivery. [Bangor Daily News]

* A petition of certiorari has been filed at the Supreme Court for a copyright case involving Led Zepplin’s iconic song “Stairway to Heaven.” Hopefully the justices will demand a live performance. [Billboard]

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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.

No, this is not a column on the latest gizmos for controlling your television or air conditioner. Even though the newest generation of cable box remotes seem to have the same amount of buttons you would expect to see in an Airbus A320 cockpit. With voice control to boot, for those of us who prefer to proclaim “Yankees game” — at the risk of being diverted to AMC or Turner Classics’ latest showing of “A Magnificent Yankee” — over pressing in a channel number. While the debate over whether the increasing technological complexity of simple devices is a boon or a bane is an interesting one, for purposes of our professional lives as IP lawyers it is much more important to keep abreast of practice developments. For litigators, those developments have centered heavily on managing the impact of COVID-19 on pending cases.

For IP litigators, many of whom have far-ranging practices in terms of pending matters in different federal courts, keeping track of the new procedures and rules can be a challenge. Unlike lawyers who may focus their practice on proceedings before a particular court, in a particular geographic location, an IP litigator may find themselves needing to review the latest COVID-19 guidance out of the Southern District of Florida before lunch and the Eastern District of Texas’ before their afternoon tea and pastry. (Or pastries, for those for whom lockdown has coincided with a break in dietary discipline.) Add in what appears as a concerted (but understandable, and befitting their need to manage their personal dockets) effort among district court judges to make idiosyncratic procedural changes on top of the general guidance put out by their respective courts and it is a lot to keep track. But we must do so, while also looking for COVID-19 specific decisions that may be applicable to other situations that may arise in our practices.

It was interesting, therefore, to see the District of New Jersey’s Magistrate Judge Tonianne J. Bongiovanni endorse on August 12 a “Stipulated Order Governing the Taking of Remote Depositions” in a patent dispute between Takeda and generic challengers Zydus and Cadila Healthcare. In fact, Bongiovanni also signed off on a similar stipulation — on the same day — in another pharma patent case, this one between Boehringer Ingelheim and Lupin. Just because the Takeda stipulation is longer, we will focus on it for purposes of this column. Considering that the stipulation was signed off on by a judge with a lot of experience managing discovery in patent cases, on top of being negotiated by sophisticated patent litigants, there is a lot to learn from reviewing its key terms.

As an initial matter, it is explicit in the stipulation that the need for remote depositions is COVID-19’s fault, while also acknowledging that the regular rules of deposition procedure and evidence are not being tossed aside as a result. In that vein, the parties agreed that the stipulated procedures would cover all the remaining depositions in the case. At the same time, the order makes plain that adherence to whatever health guidelines are in place at the time of the deposition is a paramount concern. To that end, the stipulation sets forth the agreed-to provider for the remote deposition provider, as a means of leveling the technological playing field for each side. Importantly, it is acknowledged that any time spent dealing with any technological snafus will not count toward the witness-questioning time limits under the FRCP. To avoid those snafus, the parties agreed to do a “test run,” with a critical component of that test run being to make sure that the witness has the same technological tools to participate as the well-heeled lawyers attending the deposition.

What about costs? As is traditional, the taking party bears primary responsibility for getting the remote deposition set up and carried out, with the defending party on the hook for their own orders of the transcript and video copy. Considering the significant travel cost that many depositions in patent cases entail, there is at least a reasonable probability that the shift to remote depositions — even with the technological costs for setting them up and having them run smoothly — could result in a net cost savings for litigants. But any such savings would be a pittance, at least in the context of a pharma patent dispute, where cost is often no object.

Perhaps most interesting is the requirement that counsel and the witness abide by the honor system in terms of not sneaking a peek at the exhibits before the deposition. At the same time, it is not uncommon to ship exhibits in advance of a deposition to opposing counsel — and I at least have never had an issue where someone on the other side acted in anything other than an honorable manner with respect to exhibit handling. While the witness is obviously allowed to look at the exhibits as they are presented during testimony, looking at outside information sources (without the express permission of counsel) is verboten.

A typical source of conflict during depositions is the practice of coaching witnesses during breaks, even in those jurisdictions where the rules against such behavior are more strictly enforced. With a remote deposition, that becomes a bit more difficult to police, even as the stipulation calls for strict avoidance of anything that approaches witness coaching. During testimony, the stipulation forbids any communication with the witness. At breaks, defending counsel is allowed to talk to the witness, as long as it is in “the manner permitted” under local and federal rules governing conversations in between giving testimony.

Ultimately, both the first and last paragraphs of the stipulation convey the main thrust of the situation. Depositions are an important discovery tool and essential for trial preparation, but we are in the midst of a pandemic. At the same time, the accommodations that allow for remote depositions to proceed are not an excuse for any lapse in adherence to the “typical rules of professionalism and etiquette during depositions” by counsel on either side. While stipulations governing remote depositions can meet favor with judges, the allowances carry with them responsibility that counsel and litigants must adhere to. During COVID-19 it’s remote depositions yes, but the control over how they are handled remains with the court.

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.

Like some of his peers, Jacob Ma-Weaver still believes that Tesla will eventually be subject to the same facts, logic and market forces as other listed enterprises. As such, the Cable Car Capital chief is shorting its shares. This has not gone well.

Tesla’s stock jumped as much as 6% in after-hours trading Tuesday after the company announced a five-for-one stock split, set to go into effect on August 31…. Tesla’s stock is on a roll this year, despite challenges presented by the coronavirus pandemic. Shares have risen more than 200% since January to $1,374, and its market capitalization has surpassed the likes of Disney, Toyota and Coca Cola.

This coming weekend, my husband and son and I will return to Manhattan.

For the past four and a half months, since my discharge from the hospital on April 1, we’ve been away from New York, dividing our time between my parents in New Jersey and my parents-in-law in Massachusetts. But we feel that it’s finally time to come home.

Of course, we could certainly stay away for longer if we wanted to. My husband and I could continue working remotely, since our employers have not yet reopened their offices. Our son is not yet old enough to be required to go to school (and for kids who are, school reopening plans remain unclear).

And many of our fellow New Yorkers have decided that they will stay away for longer — much, much longer, like forever. These New Yorkers have decided that they are tired of being New Yorkers. If they’re not required to be in the city for work, and if many of the cultural and culinary attractions of New York are either still closed or only partially reopened, why put up with the difficulties, inconveniences, and high cost of city living?

I have previously written about how the coronavirus pandemic has made Biglaw more open to working remotely. Forced to go virtual, law firms have discovered that it’s not so bad — and even has its advantages. Lawyers who no longer have to commute have more time to bill; in my work as a recruiter, I’ve spoken to a number of partners and associates who have hit records in terms of monthly billing during the pandemic. And work is more tolerable when, say, you can take a break in the afternoon to play with your kid or jog on the beach.

So let’s play this out a little. Even after the COVID-19 crisis is behind us, law firms will be more tolerant of working remotely, and individual lawyers will increasingly expect — and even demand — the ability to work remotely (at least for part of the time, or for specified reasons). From the Commercial Observer:

In 2017, brokerage Cushman & Wakefield asked 500 law firms a question: Do you anticipate your attorneys will work more remotely in the next five years? Of the respondents, 62 percent said yes. The brokerage asked the same question in January 2020. This time, the figure jumped, with 78 percent responding yes.

And that was before a pandemic.

When the brokerage asked the question amid the coronavirus outbreak this spring, some 120 firms, large to small, responded — and 96 percent said yes, they anticipated their attorneys will work more remotely in the next five years.

Even before COVID-19, law firms were already moving in the direction of smaller offices. Post-pandemic, the trend will accelerate, as law firms try to reduce their real estate costs — one of the biggest expenses of a law firm — by taking advantage of the fact that more of their employees will be working remotely, for more of the time.

I suspect that some law firms will move to either “hoteling” or “hot desking,” two models in which employees don’t have their own set offices or desks. (In hoteling, you make a “reservation” for a space, like you would for a hotel room; in hot desking, it’s more “first come, first served,” where you grab an open space.) For example, check out what Freshfields has in store for employees in its new London office, as reported by Law.com:

Freshfields Bruckhaus Deringer lawyers face a new challenge when the firm completes its move into its new London office later this year. The firm is planning to operate an ‘office release system’ which means someone else can use your office if you are working remotely.

“If you’re not there, you give your office up,” said London managing partner Claire Wills of the office-wide rule.

The system, which will mean junior lawyers or colleagues from overseas can use a partner’s office if it is empty, will be a cultural change for the top U.K.-based firm…. However, [Wills] said that the pandemic has accelerated such cultural changes, with technology and paper-free working fast becoming the norm.

Note the reference to “paper-free working,” a key component of the equation. Lawyers previously justified having private offices, which they could lock when they left for the day, because of all the (often sensitive or confidential) documents in their offices. But now that those documents are largely digital, whether housed in servers or in the cloud, the case for proprietary desks and offices is much weaker.

And maybe that’s not a bad thing. Going paperless has forced me, a paper pack rat — see the photo of me in my office as a law clerk at the top of this post — to clean up my act. Today I can find documents much more easily, whether they’re on my MacBook or in Google Drive, than I could when they were in disorganized stacks on my desk. I suspect I’m not alone.

So far, so good. The ability for more people to work remotely, whether permanently or on as-needed basis — e.g., because you’re sick, your child is sick, or you have to wait for the cable guy (or gal) — seems like a good thing. The ability of law firms to spend less on office overhead also seems like a good thing. They can (and will) spend some of the savings on technology, of course — more telecommuting requires better tech — but some of the savings will surely find a way back to the pockets of partners, associates, and staff.

But here’s what worries me: the future of our cities. Consider this portrait of midtown Manhattan — the greatest agglomeration of major law firms in the United States, if not the world — from the New York Times:

Midtown Manhattan, the muscular power center of New York City for a century, faces an economic catastrophe, a cascade of loss upon loss that threatens to alter the very identity of the city’s corporate base. The coronavirus’s toll of lost professions, lost professionals and untold billions of lost income and tax revenue may take years to understand and resolve.

Now, midtown has never been the most charming neighborhood — the West Village it is not — so maybe some might say, “Good riddance.” But that ignores the economic toll that collapsing commercial centers and dying downtowns inflict upon the cities in which they’re situated.

If you’re in the mood to read something depressing and disturbing, check out this post by James Altucher, a longtime New Yorker. Here’s his response to the “New York comes back, it has always come back” argument:

[T]his time is different. You’re never supposed to say that but this time it’s true. If you believe this time is no different, that NYC is resilient, I hope you’re right….

[T]his time is different. One reason: Bandwidth.

In 2008, average bandwidth speeds were 3 megabits per second. That’s not enough for a Zoom meeting with reliable video quality. Now, it’s over 20 megabits per second. That’s more than enough for high-quality video.

There’s a before and after. BEFORE: No remote work. AFTER: Everyone can work remotely.

And, for better or worse, many people will. As more residents leave, no longer required to live in New York, it will become a less attractive place to live and work. New York and cities like it will lose their cultural cachet — they will no longer be where the “cool kids” live — and some people will leave for that reason. The remaining residents will face higher taxes, and some of them will leave too.

This coming weekend, my husband and son and I will return to Manhattan. Our (almost) 3-year-old son can’t wait; for weeks he has been saying, “Tomorrow we’re going back to New York City.”

We still believe in New York. We hope our belief is justified.

Earlier: What Good Might Come Out Of The Coronavirus Crisis?

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

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

According to data collected by Law.com for the 2020 Am Law 100 ranking, what is the only firm with revenue per lawyer over 2 billion dollars?

Hint: RPL at the firm blows other Biglaw firms out of the water at $3.329 billion.

See the answer on the next page.

The first week of Zoom school last spring, one of my own children changed his image to a black square with white lettering that said “Click here to end call.” Which is exactly what the teacher did, several times. Everyone laughed, even the poor teacher … eventually.

Because teenagers are assholes. And if being obnoxious were against the law, we’d have to throw all of them in jail.

But according to the Atlanta Journal Constitution, that’s exactly what the cops in Henry County, Georgia are threatening to do after reports of kids posting porn onscreen during remote classes.

“Students: If you stream pornography in an online class, myself and the Henry County GA Sheriff’s Office will find you and charge you with life-altering charges,” the original post read. “We’re 24 hours in, and I’m over it.”

It appears to have been edited now to include reference to specific Georgia statutes, before being removed altogether once the story hit the papers.

Luckily, the internet is forever.

How standard 9th grade dipshittery is transformed into “manufacture and distribution of child pornography charges, child molestation charges, and hav[ing] to register as a sex offender” is not entirely clear.

Georgia’s obscenity distribution laws are generally applied to commercial sale, rather than a 14-year-old holding his phone up to the webcam to flash a photo during math class. Law enforcement declined to elaborate on the “incident” currently under investigation by a Henry County Sheriff’s Office school resource officer. But if it involved the bog standard, consenting adult porn that’s never more than a click away, it’s not clear how the child pornography statutes might apply.

O.C.G.A. 16-6-4 criminalizes showing porn to kids under 16 “with the intent to arouse or satisfy the sexual desires of either the child or the person.” So being a little twerp trying to get a rise out of your classmates is probably not going to satisfy the mens rea requirement. And, by the by, the sex offender registry statute specifically states “conduct which is adjudicated in juvenile court shall not be considered a dangerous sexual offense.” So kids 16 and under specifically excluded.

But other than that, bang up legal work there, fellas! Zoom school sucks, but somehow the Henry County Police Department managed to make it even worse.

Cops say students are streaming porn during virtual class [AJC]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.