Category: News Feeds

Nationwide protests in the wake of the killing of George Floyd have reignited a public debate over police brutality in this country. Alongside calls for police reform have emerged other demands, demands of defunding the police.

The call to defund the police is, of course, a financial issue, but it is also about building constructive police alternatives. It is a call to reinvest in communities and explore new and more equitable solutions.

This is precisely what the City Council of Portland, Oregon, tried to convey last Thursday, when it approved an amendment to a proposed budget that would divest approximately $27 million from marijuana tax revenue funds from the city’s police department to programs focusing on restorative justice initiatives.

Back in 2016, Portland passed Recreational Marijuana Sales Measure 26-180, a measure that allocated marijuana tax dollars to substance misuse treatment, public safety, and small business development, a 2019 report from the Portland City Auditor revealed that 46 percent of marijuana tax revenue has gone directly to the Portland Police Bureau.

This misallocation of marijuana tax revenue is paradoxical in that the money is funding the very institution that has disproportionately targeted communities of color — particularly black and brown men — in the enforcement of marijuana laws.

Since the 1970s, enforcement of marijuana possession laws has been carried out with staggering racial bias. According to a 2013 report published by the American Civil Liberties Union (ACLU), nearly half of all drug arrests made in 2010 were for marijuana possession. Although marijuana use was roughly the same among blacks and whites, blacks were nearly four times as likely to be arrested for marijuana possession.

As Jason Ortiz, President of the Minority Cannabis Business Association (MCBA) and a police accountability activist, stated in a recent press release, “[t]his [misallocation of marijuana tax revenue] is not just an Oregon problem, this is a national disgrace.” Ortiz explained that the MCBA expects jurisdictions across the United States to follow Portland’s lead and encouraged all national cannabis justice advocates to investigate their municipal finances and local cannabis company investments to determine if and how marijuana tax revenues intended for community uplift are in fact allocated.

Indeed, the proper allocation of marijuana tax revenue is part of the national issue of cannabis reform. Throughout the United States, conversations have been taking place regarding the relationship between marijuana prohibition and racial injustice.

According to Marijuana Moment, Representatives Earl Blumenauer, D-Ore., and Barbara Lee, D-Calif., recently circulated a “Dear Colleague” letter that urged their fellow lawmakers to consider federal marijuana reform to further promote racial justice as they debate policing reform legislation.

Last month, the House of Representatives introduced a resolution condemning police brutality and racial profiling and calling for the adoption of “sound and unbiased law enforcement policies that would reduce disparate impact of police brutality and use of force on Black and Brown people and other historically marginalized communities” that stem, in part, from the War on Drugs.

States have also been vocal about the role of marijuana reform in fighting racial injustices.

During a recent press conference, California Governor Gavin Newsom highlighted California’s legalizing of recreational marijuana as a “civil rights” issue. This statement was echoed by Virginia Governor Ralph Northam, who stated that the enactment of cannabis decriminalization legislation in May was intended to reform criminal justice and address racial inequalities.

Other states, including New York, are pushing for the passage of criminal justice reform legislation, including the legalization of marijuana.

The calls for change coming from weeks of sustained anger and grief following George Floyd’s murder have sparked national conversations that must be honored. Recognizing the devastating damage caused by decades of cannabis prohibition along with the restorative potential of legalization, with strong attention paid to ensuring resources are reinvested in communities most harmed by prohibition, is a fundamental aspect of honoring these calls and to abolishing racial inequality in Portland, Oregon, and throughout the country.

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Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. Nathalie is also a regular contributor to her firm’s Canna Law Blog.

The last few months brought major disruptions to the practice of law throughout the country. Locking attorneys out of their offices and shutting down major sectors of the economy ushered in both a technological leap forward for law firms trying to stay active remotely as well as layoffs and paycuts that could linger over the practice for years. But there are also changes happening in the profession that might not be readily apparent.

Did you know divorce attorneys are actually dropping the adversary role in order to forge creative solutions to the economic hit COVID leveled on marital assets? Or that juries are likely to take a distinctly pro-business turn for the next several months?

Talking about these unexpected changes to the legal landscape is what our special report podcast, the “ATL COVID Cast,” is all about. Each week, Kathryn Rubino and I chat with guests about their corner of the legal world and how the pandemic is changing it in unexpected ways.

So, subscribe and spread the word. We’ll be doing this for as long as this crisis continues.

At first glance, TCW Group seems like a fairly staid place to work. Quietly managing $200 billion for the most conservative of institutional investors from sleepy downtown Los Angeles, even the name induces snores, for TCW aren’t the initials of some freewheeling dealmaker from L.A.’s “Chinatown” days, but an acronym for Trust Company of the West.

And yet, behind one door you’ve got the entire contents of a Hollywood adult emporium and dispensary, with women (allegedly) doing naughty things with their undergarments. And behind another, you’ve (allegedly) got this:

For many young (and not-so-young) lawyers, working as in-house counsel is a professional promised land. And even if this view might be somewhat idealized, one can understand the attractions of life as corporate counsel: no billable hours, the ability to focus on serving a single client, the opportunity to learn more about the business world, and (generally) more reasonable hours than Biglaw.

Because the demand for good in-house legal jobs among a certain sector of the legal profession exceeds the supply, these jobs can be very hard to get. I have previously offered my three tips for the in-house job search, but they’re just general pointers; there’s so much more to the process.

So how can you land a great in-house gig? And how can you do a great job once you’re there?

To get answers to those questions from an expert, I recently spoke by phone with David Stiepleman, a cofounding partner of Sixth Street Partners. After graduating from Columbia Law School and working at Cleary Gottlieb, David worked as an in-house lawyer at Goldman Sachs and Fortress Investment Group, en route to his current role as co-president and COO of a global investment business with approximately $34 billion in assets under management.

Here’s a (lightly edited and condensed) write-up of our conversation.

DL: You’ve had an accomplished career, starting off in Biglaw and winding up as a business builder. Many lawyers would love a professional path like yours, including stints at a top law firm, top investment bank, and top fund manager, culminating in helping start a multibillion-dollar business as its COO. Can you begin by telling us a bit about your journey?

DS: When I started out as a summer associate at Cleary Gottlieb, I didn’t know what I wanted to do. In the summer of 1996, the firm sent me to Ireland for two weeks, where I tried to follow along watching a senior lawyer do a deal. It was a great experience — figuring out what the parties wanted, how to reconcile their divergent interests, and how to get a deal done. I saw that and thought: I can do this. And it was a relief, finding something that I really wanted to do.

DL: So you spent five years at Cleary as an M&A generalist, learning about different industries and working on different deals, and you were doing well. How -– and why -– did you make the jump in-house?

DS: I got the opportunity to spend time at Goldman Sachs through a secondment, and after a few months, the Goldman folks said to me, “Why don’t you stay?”

I had expected to return to Cleary, but at that point I had an “a-ha” moment. I thought to myself: this job is so much fun, I deal with 16 different topics in a day, there are so many smart people here, and it’s busy and crazy and intense. But at the end of the day, I can go home and have dinner with my family, while great outside lawyers do the work that I used to do. So I stayed.

I became the lead counsel of the Americas Special Situations Group, which is where I first worked with my partner Alan Waxman, who led the business and who would later get our core group back together at Sixth Street. This is when I really started getting into building a business, helping grow the Special Situations Group within Goldman.

DL: And then you continued to move toward the business side of things.

DS: Yes. In 2007 I went to Fortress, where among other things one of my mandates was going to Japan to help a new team build a real estate business. I had no prior experience working in Japan or building a real estate business, but we figured things out. And it was really fun.

Then in 2010, I got a call from Alan, who said he wanted to get the band back together to rebuild the Special Situations group as part of TPG. I said to him that I’m a New Yorker, I can’t move to California. But my wife said take the meeting.

I took the meeting, and then the job, and that was over 10 years ago. We founded Sixth Street, which fortunately thrived — and which now after our recent deal with TPG is a completely independent business.

DL: Over the course of your career, as both a lawyer and a business executive, you have hired many in-house lawyers. What do you look for when building a legal department?

DS: For in-house roles, you need nimble lawyers who can migrate from one field to the next and who are comfortable with change. As investors, if we find an opportunity, it will only last for a certain period of time –- so we need to be nimble to take advantage of it.

At Sixth Street, we have a predilection for M&A generalists. We find that they have the nimbleness and the skill set we need, which is all about managing risk. Over the years, we have brought in some very talented senior M&A associates from firms who have grown with Sixth Street. One lawyer who came out of a New York firm and has been with us for five-plus years became our general counsel earlier this year.

That’s our model: take people who are good lawyers with good skill sets, and get them to become cross-disciplinary and comfortable with things they may not have done before.

DL: When do you think you went from being a “lawyer” to being a “businessperson”?

DS: It was an evolution, not a specific moment in time. I realized that I was clinging to certain aspects of my identity –- for example, “I’m a lawyer,” or “I’m a New Yorker” –- that I didn’t necessarily need to cling to.

By the time we were starting Sixth Street, not only was I fine with not being a lawyer, but having and using those business-building skills was an imperative. As a small team starting a new business, everyone had to go outside their comfort zone and be OK taking the lead on new things, and that’s something we’ve focused on keeping as we’ve grown.

DL: As a former in-house lawyer and a business executive who works with many in-house lawyers, what advice would you give to in-house lawyers? And what mistakes get made?

DS: First, work for a company and for people you can really get behind. Knowing that your internal clients care about the right things is crucial. Since we had all worked together before, I knew that our partner group would do our best not only to invest well but also explicitly to want to make the right decisions, the ethical decisions.

In investing, there are ways to make money that aren’t super-great. We don’t want to be in a situation where we are underwriting to some misunderstanding or some “gotcha” point hidden in a deal.

Second, get your reps. Know how to conduct yourself as a professional and as a lawyer. Don’t go in-house too early and think you can just wing it. Reach a point where you can be useful and commercial.

What’s valuable is someone who can perform pattern recognition. If you’ve only seen six deals, and they’ve all been bond offerings, that’s not a good fit, at least not for us. Try to get broad experience, so even if you come across a type of deal you’ve not done before, you can figure it out by comparing it to something you have done.

Third, learn how to manage your time. Law firms and law schools don’t teach this. There’s too much to do, and if you try to do everything, you’ll do none of it well. Figure out what’s important and what outside resources you need, and get them to do those things.

[For more advice from David Stiepleman to corporate counsel, see this excellent memo, Who the Best In-House Lawyers Are.]

DL: So that brings up the subject of outside counsel. What advice do you have for external counsel? And are there any “pet peeves” of yours when it comes to your outside law firms?

DS: First, if you’re representing us, we want you to care about this deal or project like it’s your own business. We want you, at least to some degree, driving yourself a little bit nuts thinking about the risks, looking around corners — not just pumping out documents, but thinking about substantive issues. We want to partner with law firms that are helping us manage risk.

Second, we want firms that understand the importance of teamwork. You’re colleagues; talk about and think through things together. Don’t just tell me to go talk to so-and-so at your firm. Talk to so-and-so yourself and work on our issues collaboratively.

A pet peeve of mine: law firm partners who always say, no matter what, “We definitely do that.” Really? Have you done it before? How many times have you done it before? With what results?

There’s nothing wrong with tackling a unique or novel legal problem, but you need to be honest about your expertise and whether you’re the right firm or lawyer for the job. We really appreciate hearing, “We aren’t the best at this, but we can introduce you to the experts.” That’s the spirit of partnership we value.

DL: Let’s turn to current events. Today’s environment, in which so many people are working remotely, presents challenges in terms of running a business. Can you talk about how you’re navigating this?

DS: Our priorities have been safety — of our own people, as well as the whole community — and making sure our business continues to run seamlessly.

With everyone scattered, our focus turned to doubling down on relentless, nonstop communication, as we tried to spot risks and opportunities across our business. We went from standing meetings to more frequent communication, in quicker bursts. We also have a proprietary platform for communicating that everyone feeds information into, which has been an advantage in this environment.

DL: Also regarding recent events, I saw the very thoughtful and heartfelt note you sent within Sixth Street in the wake of the horrific killing of George Floyd, which itself came after the killings of Ahmaud Arbery and Breonna Taylor. What was your thinking in making this communication and sharing it beyond Sixth Street?

DS: Because it was the right thing to do. As a group of partners, we have diverse views on many things, but there was no disagreement on this. We’ve been sickened by what we’ve been seeing, and we wanted to make sure our people knew that — not just our black professionals or professionals of color, but everyone who is a part of our diverse workforce of almost 300 professionals around the world.

We wanted to stand up and be counted and for our ecosystem — including our external lawyers and everyone else — to know about our culture, our values, and what we stand for.

We’ve been exploring ways to address the problem of underrepresentation in our industry for some time. Two years ago, a number of us across Sixth Street started working with Sean Mendy and his team at Concrete Rose, which is an early-stage investing business focused on underrepresented founders and talent. They’re building a great platform, and we’re confident you’ll be hearing a lot more about them over the next decade.

At Sixth Street, our culture is the most important thing to us. It’s the hardest thing to maintain, it’s what makes us a great place to work, and it also helps us hopefully invest and manage risk well. We are focused on maintaining an open, collaborative, respectful culture, where people think like owners and act with integrity. That’s what we are all about.

DL: Well stated. Congratulations on your success and the success of Sixth Street, David, and thank you for taking the time!

Earlier: 3 Tips For The In-House Job Search

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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.

Amidst all the horrifying images of police violence last week, one of the underappreciated tragedies was the rapid spread of armed vigilante groups roaming the streets and attacking protesters under the pretense of “preventing looting.” The liberal elite may point and laugh at rural communities for busting out machine guns to guard against Antifa busses that exist only in their meth-fueled fantasies, but it’s not like their own cosmopolitan utopias were free of this mentality. The mob in Philadelphia was infamously given a free pass by nearby authorities as they assaulted and threatened people at random. Law enforcement nationwide spent the week claiming that protesters were hoarding bricks and other weapons — though the NYPD could only scrounge up hapless delivery guys with bike tire repair kits — and yet these people carried hammers around with impunity.

New York had its own “armed patrol group” in South Brooklyn and one of its organizers is a self-described conservative law student at Fordham^[1] whose experience putting together a posse should have taught him exactly how problematic his worldview really is.

But don’t worry, it didn’t seem to teach him anything.

The story begins with a post on a school group chat:

Well, if no one else is going to use a baseball bat this year.

Why would anyone loot Sheepshead Bay? Looting was, in the grand scheme of things, fairly rare over the last week but to the extent it happened, Manhattan and its big box stores have everything someone could possibly need. The convenience of one-stop shopping doesn’t, like, cease to be a draw. Sheepshead Bay is where Macy’s sends its junk products.

In a story by NY1, the group’s organizers explained that they were focused on responding to police scanner traffic (which I can personally attest to being rife with specious rumors last week that were debunked within hours) and chasing down people “looking for hidden weapons such as rocks inside of crates, gasoline containers” — a paranoid falsehood spread through right-wing media and the NYC Mayor’s office.

As you can probably guess, the group quickly ballooned into a hive of racist conspiracy theorists posing problems for the student earnestly trying to keep things as civil as a private security force can. As the student would later write in the group chat, “This group went from 2 to 1000 in 2 days so it’s very hard for me to stay on top of it and I am working with other admins to enforce our rules.” Yeah… who would have thought that telling yahoos to arm themselves would bring out the crazies. This should have been the teachable moment, but even Batman couldn’t stop the hockey pads guy from messing around in Gotham, so what chance could this subtle lesson in board moderation have?

One classmate appealed to him over the group chat:

I truly don’t want to think that you have bad intentions, but you should see what people are saying in response to your coalition. I have personally never seen so many openly racist and aggressive people coalescing under one call to action. Do better I am pretty sure i want the same thing as you guys.

Honestly, his response is so meta in the context of a vigilante response to a protest over police brutality that it should collapse the universe:

There are definitely bad apples and we are working to talk to them, explain, etc!

As the other student pointed out that “Bad apples kill people.”

Ultimately, Dean Matthew Diller posted a statement for law students to “express that as a community we should denounce this type of rhetoric and to underscore the inappropriateness of the conduct.” This should have ended this troubling chapter in the school’s history.

Friends, it did not.

However, I wanted to share with you the email that I sent to Dean Diller when I first found out that he might issue a school-wide statement. Please note that even though he took the time to respond to YOU and YOUR CONCERNS, it seems that my side of the story didn’t even merit discussion. So much for a tolerant academic environment where conservative students are treated as equal to their liberal counterparts. I’m really glad that we’re going in this non-tolerant direction as a society (and I don’t mean non-tolerance to racism), it fills my heart with joy (not).

Yeah, it might be less of a liberal-conservative thing and more of a “only one of you created a 1,000-person private army of bad apples” thing.

Also, just want to give a give a quick shout-out to the true hero of Fordham Law, not me, the guy who ended up being an organizer of a community group that has stopped burglaries and made people feel safer, has not confronted not one protestor or any person, and is working to do a lot of good in the community, but actually supposed human-rights attorney Urooj Rahman ’16, who was arrested on May 30 for throwing a molotov cocktail at a police vehicle and passing out incendiary devices at the demonstrations.

Indeed, Rahman is very much in jail for allegedly throwing an incendiary device at an unoccupied police vehicle. Rahman also isn’t a Fordham Law student that the class has to interact with every day and the guy calling for armed civilians to go out and enforce their own subjective sense of the law is. So Dean Diller’s obligations are more properly focused on this situation.

Also, how did he stop burglaries and never confront any person? Not to double up on the Simpsons references, but is this like Lisa’s Anti-Tiger Rock? Maybe there just wasn’t ever any threat of burglaries in the first place.

In any event, this is an opportunity to realize that, regardless of conscious intention, this whole project sprung from racially tinged rumor-mongering. That’s why the group grew so quickly to include so many “bad apples” and it should give the student pause.

Instead… oh no… he’s gonna do it, isn’t he? He’s really going to go to the same bullshit playbook:

Although I am still extremely busy I challenge the school to have the courage to set up a debate/conversation on these issues with myself as one of the participants….

A quote-unquote debate! Someone please call 911 because I’m bleeding from my eyeballs. These aren’t debates, they’re exercises in empty sophistry designed to give the illusion of credibility to crackpot ideas. Don’t fall for it.

… rather than resorting to your usual mob-like tactics and giving in to them. I hope you are all excited about the new world order that you are trying to build.

Please, tell us more about mob-like tactics.

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[1] As we often do with law students who don’t file lawsuits or otherwise post in a public forum, we’re not going to identify the star of this story, even though he’s named in mainstream media stories about the group. We do this gratuitously in the usually vain hope that law students will get their act together before they enter the profession.

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.

We invite you to join this free webinar on the emerging role of product counsel on June 18th, at 1 p.m ET / 10 a.m. PT.

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Our expert panel will tackle such topics as:

• Defining the role of product counsel
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It’s not often you feel bad for federal clerks (I mean, it happens). They’ve basically won one of the great prestige-offs of the legal industry. And when their time learning the profession at the robes of their judge — or not learning it, as the case may be — is over, they can write their ticket to any one of a number of excellent post-clerkship careers. All of which is particularly true if you manage to land a clerkship at the D.C. Circuit, which even in the land of elite clerkships is a goddamned gold star.

But, that doesn’t mean you don’t have to deal with some bullshit. Like, perhaps, when Judge Laurence Silberman decides to email the entire circuit his thoughts about how awful it is that people want to change the names of Confederate monuments. Yup. That really happened.

As reported by The Intercept, on Sunday, Judge Silberman decided to unload his thoughts on Elizabeth Warren’s amendment to the National Defense Authorization Act to strip the names of Confederates from military assets. Yeah, the Reagan appointee is not pleased that in 2020 we are finally having the conversation about removing the names of the losers of the Civil War from military bases and monuments. As he wrote in an email to the entire circuit:

“Since I am about to be interviewed I thought it would be appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves,” Silberman wrote.

The interview Silberman referenced was part of a series of chats judges do, open only to court staff. Silberman went on to explain that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania. “It’s important to remember that Lincoln did not fight the war to free the Slaves Indeed he was willing to put up with slavery if the Confederate States Returned,” he wrote (lack of punctuation and errant capitalization in the original, and throughout). “My great great grandfather Never owned slaves as best I can tell.”

There’s an awful lot to unpack in this wildly inappropriate missive, but why listen to ‘lil old me when an actual D.C. Circuit clerk did all the work of calling him out? That’s right, no one responded to Judge Silberman’s email for a whole day until an unnamed clerk rose to the challenge. Now that takes some guts. And they did it with some real style, as you can read for yourself:

“Hi Judge Silberman,” began the career-risking reply-all email, “I am one of only five black law clerks in this entire circuit. However, the views I express below are solely my own,” they went on. “Since no one in the court’s leadership has responded to your message, I thought I would give it a try.”

“[M]y maternal ancestors were enslaved in Mississippi. While the laws of this nation viewed my ancestors as property, I view them as hostages. In a hostage situation, when someone does something that leads to the freeing of the hostages, I am not sure if the hostages would be concerned as to whether the person that saved them, actually intended to save them. In this instance, as people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality. For them, and myself, race is not an abstract topic to be debated, so in my view anything that was built to represent white racial superiority, or named after someone who fought to maintain white supremacy (or the Southern economy of slavery), see Photo of Liberty Monument attached, should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.

“In your message, you talked about your ancestors, one that fought for the confederacy and one that fought for the Union. This seems to be a true example of a house divided. However, it is very clear what the Confederacy stood for. In 1861, at the Virginia secession convention, Henry L. Benning (for whom Fort Benning is named) in explaining the reasoning for Georgia’s decision to secede from the United States stated, “[it] was a conviction … that a separation from the North was the only thing that could prevent the abolition of her slavery…[I]t is probable that the white race, being superior in every respect, may push the other back.” Unfortunately, in this scenario, no matter how bravely your uncle fought for the Confederacy, the foundation of his fight was a decision that he agreed more with the ideals of the Confederacy, than he did with those of the Union. And in the end, he chose the losing side of history.

“Finally, I will note that the current movement to rename Government owned facilities is in line with your previous opinions on the importance of names and what they represent. In 2005, you publicly advocated for the removal of J. Edgar Hoover’s name from the FBI Building due to the problematic material you came across in your review of his FBI files after his death. You equated it to the Defense Department being named for Aaron Burr. In view of your opinion of J. Edgar Hoover’s history and your advocacy for renaming the FBI building because of the prominence it provides Hoover’s legacy, it is very strange that you would be against renaming our military facilities, since the legacy of the Confederacy represents the same thing. This moment of confronting our nation’s racial history is too big to be disregarded based on familial ties.”

That’s just glorious.

Several judges finally weighed in, most thanking the clerk for their words:

“I know it took courage to send such an email — I am grateful you shared your very important voice and views with me,” a circuit court judge replied.

The Intercept also notes another judge “worked to do clean up for Silberman, noting that, while he couldn’t speak for Silberman, perhaps he only meant to refer to the possibility that the legislation may have applied not just to base names, but also to gravesites.” Of course, Warren has already agreed that actual gravesites would not need to be renamed, but it’s a great out and Silberman jumped onto that life preserver:

“Thank you for your thoughtful message,” he wrote the clerk in a reply all, saying the other judge’s interpretation was “absolutely correct; my concern was limited to cemeteries.” Silberman didn’t explain why he needed to suggest the Civil War wasn’t really about slavery if he had such a minor objection. Silberman did not immediately respond to a message left at his chambers.

Once again, the work of correcting white privilege was left to a black person — and someone pretty far down on the circuit’s hierarchy. That’s a problem. When well-meaning white liberals want to know what they can do to dismantle white supremacy, and are told by BIPOC that they need to call out that stuff when they see it, THIS is exactly what they mean.

Listen, this is a fantastic story because this clerk is awesome and called out a Circuit Court judge. But everybody in the circuit — especially Silberman’s fellow judges — had an opportunity to do something important that they frankly missed.

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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).

Anyone practicing patent litigation knows that attorney’s fees motions at least seem more prevalent than ever for a number of reasons, topped by the fact that district court judges continue to actually award fees by declaring cases exceptional ever more routinely. Spurred by the perceived ease in getting fees awarded, prevailing parties in patent cases continue to file fees motions, both for their perceived deterrent effect against future challengers as well as to simply recoup what they can from what is often an unwilling, aggravating, and expensive foray into the clutches of the legal system. In short, fees motions are a part of modern patent practice, even for those practitioners who would like to see their volume reduced.

Some common scenarios for when an attorney’s fees motion can be expected include cases that: 1) get bounced before they really take flight, leading to a credible argument that the plaintiff should have known better (e.g. Alice motions that are not close calls), 2) go to decision on summary judgment where the losing party has persisted in advancing a rejected argument, such as pressing forward despite an unfavorable claim construction, or, 3) exhibit clear litigation misconduct by the losing party over the course of a case that resolves at trial, or even earlier, (e.g. taking actions designed to increase the cost burden on the opposing party, or where there is demonstrated discovery shenanigans). In truth, the range of situations that have led to attorney’s fees motions in patent cases has broadened. With the usual differences in responses nationwide by district court judges, who have seen their workloads in terms of handling disputes widened by the recent developments. As with all things patent, however, it is the Federal Circuit’s proclamations on issues that give direction to the courts, counsel, and litigants — particularly in fast-changing areas of patent practice. Put another way, in the current environment, when the Federal Circuit issues a precedential decision concerning attorney’s fees, attention must be paid.

Last week, the Federal Circuit issued just such a precedential decision in a long-running competitor IP battle over spill-proof cups for toddlers, Munchkin, Inc. v. Luv N’Care Ltd. et al., case no. 2019-1454. The procedural history tracks that of many modern patent cases. After some maneuvering in district court, an IPR (affirmed in a separate CAFC appeal) invalidated the claims of Munchkin’s patent, leading to Munchkin dismissing its pending infringement claims. Luv N’Care then moved for fees, with the district court “finding the case to be ‘exceptional based on LNC’s arguments in its fee motion that the trademark and trade dress infringement claims were substantively weak, and that Munchkin should have been aware of the substantive weakness of its patent’s validity.” Munchkin appealed, arguing that the district court never really considered the strength and weakness of the merits of Munchkin’s various claims, rendering a grant of fees both unsupported and incorrect.

In its decision awarding fees, the district court found that Munchkin’s trademark, trade dress, and patent claims were all “substantively weak.” Included in the fee award were Luv N’Care’s “attorney’s fees for litigating the IPR… and its associated appeal.” That component was based on the idea that the IPR was a direct result of Munchkin’s decision to initiate litigation, coupled with the fact that the issues in the IPR were not duplicative of those reached in the pending court case. All told, it was a $1 million-plus bill that Munchkin faced for choosing to assert its rights. Thankfully for Munchkin, the Federal Circuit reversed the grant of attorney’s fees — effectively wiping out Munchkin’s liability.

More importantly for other existing and potential litigants, the decision in Munchkin reiterated that attorney’s fees in patent cases are reserved for “exceptional” — rather than just losing — cases. Acknowledging that it usually defers to exceptional case findings made by district courts, the Federal Circuit in Munchkin still expressed concern that Luv N’Care “failed to make the detailed, fact-based analysis of Munchkin’s litigating positions to establish they were wholly lacking in merit.” On the patent claim, for example, the Federal Circuit noted that Munchkin had received a favorable claim construction ruling, which formed the basis for its validity position in both the IPR and court case. Further, the Federal Circuit refused to find fault with Munchkin for continuing to press the district court case while the IPR was pending. Nor was it willing to endorse a rule where a patent owner would face a “§ 285 fee award in a patent suit anytime its patent is canceled in a co-pending IPR proceeding, without any consideration of the relative strength of the patent owner’s legal theories, claim construction arguments, or proffered evidence in defense of the patent.” In short, those hoping for attorney’s fees in patent cases are reminded that they should consider and make a real evidentiary showing that the case itself is exceptional, considering all the circumstances.

Ultimately, the decision in Munchkin is at least a caution to district courts and winning parties that an award of fees in patent cases must be based on evidence, rather than logical shortcuts or a results-oriented analysis. The Federal Circuit’s call for more rigor in attorney’s fees determinations is a necessary corrective to the growing perception that all patent litigation musn’t end unless an attorney’s fees motion is also adjudicated. For now, at least, the Federal Circuit has served notice that the word “exceptional” still carries weight, compelling a prevailing party to substantiate any fees request. In Munchkin, Luv N’Care’s presentation didn’t meet that burden. As a result, there is joy in Munchkinland, despite Munchkin’s otherwise total loss in the case.

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.