Trump Suggests Ruth Bader Ginsburg’s Dying Wish Came From Liberal Operatives

(Photo by MANDEL NGAN/AFP/Getty Images)

I don’t know that she said that, or was that written out by Adam Schiff, Schumer, and Pelosi? I would be more inclined to the second. That came out of the wind, it sounds so beautiful … but that sounds like a Schumer deal or maybe Pelosi or shifty Schiff … maybe she did and maybe she didn’t.

— President Donald Trump, casting doubt upon Justice Ruth Bader Ginsburg’s dying wish that she “not be replaced until a new president is installed,” during an interview on “Fox & Friends.” Clara Spera, Ginsburg’s granddaughter, confirmed that her grandmother made the remark shortly before her death Friday evening, as did Ginsburg’s doctor.


Staci ZaretskyStaci 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.

No, Seriously, Amy Coney Barrett Would Be A Dumpster Fire Of A Supreme Court Justice

Amy Coney Barret. Photo via Wikimedia Commons

Ah, the rehabilitation of Supreme Court front runner Amy Coney Barrett has begun! Even in Above the Law’s own digital pages, there’s a piece written by David Lat that breathlessly touts Coney Barrett’s (and other SCOTUS contenders’) elite pedigree and sparkling personality.

In the subtweet of the blogging world — an uncredited link — Lat references the issues that myself and others have with a potential Justice Coney Barrett:

She’s very conservative and very Catholic, and so liberals and progressives are freaking out over how she might rule as a justice, especially on such precedents as Roe v. Wade (which she is bound to follow as a lower-court judge, but able to revisit as a Supreme Court justice).

But here’s the thing, as I said in my initial article, I don’t care that Coney Barrett is “very Catholic” — that isn’t the problem, it’s her jurisprudence. Not that FedSoc talking points actually pay attention to nuance. Certainly not when crying “religious freedom” can “galvaniz[e] evangelicals and Catholics in midwestern battleground states.”

But if you want more proof her religion isn’t the problem: I don’t even mention the (utterly batshit) point about her membership in the religious group that ACTUALLY inspired The Handmaid’s Tale. Our country is basically on the Gilead Express and it doesn’t get a mention. Also, of note, my very favorite Supreme Court justice is Catholic — Sonia Sotomayor. (And no, it’s not an insult to RBG’s memory, she was great, but progressives don’t have to be a monolith.)

And we should realize in the fawning profile of Coney Barrett zero words are written about the kind of Justice she’d be (but progressives are the ones that are reacting without analysis, ummm, okay). Not about the deeply troubling “life begins at conception” comment or her disregard for precedent or that she doesn’t seem to believe in Miranda rights. But her penchant for winning people over? Yup, that makes the cut.

Nobody cares if your nominee is nice. We care about what her tenure on the Court will look like. At least Lat makes some sort of tacit acknowledgment in the piece that Coney Barrett is being set up to be the Justice that overturns a woman’s right to choose, not that it changes his opinion of Coney Barrett as someone whose “advantages are manifest and manifold.” Because what’s such a minor quibble as a woman’s right to choose in the face of someone so charming!?!?!

Here’s the thing — this is a really, really big deal. It’s not just because as someone with a uterus, it is impossible for me not to oppose the approaching erosion of reproductive freedom. But this is only the tip of the iceberg — one the right has been priming the public for since Coney Barrett was one year old. There will surely be other marginalized groups that see their hard won rights take a hit as a very particular sort of conservative philosophy keeps tightening its grip on American jurisprudence. You shouldn’t need your own rights on the chopping block to see the problem with empowering this jurisprudence.

And it’s not just progressives that see a dangerous trend. Eric Posner and Lee Epstein recently made this argument in the New York Times:

The religious right has made no secret of its expectation that President Trump will choose a socially conservative successor to the seat held by Ruth Bader Ginsburg. And the president will likely deliver, further confirming the power of the religious right.

The conservative legal movement, which at one time was libertarian in spirit, has been hijacked by the religious right. This religious version has left a deep mark on the Supreme Court under the leadership of Chief Justice John Roberts.

A potential Justice Coney Barrett — and the 40+ years she could sit on the Court — is so much more than the final nail in the coffin of women’s reproductive freedom.


headshotKathryn 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).

Meet The 5 Finalists For President Trump’s Next Supreme Court Nomination

Judge Amy Coney Barrett (screenshot via YouTube)

On Friday, September 18, Justice Ruth Bader Ginsburg passed away at the age of 87, after a valiant battle with pancreatic cancer. She was a legendary litigator for gender equality, an inspiration to countless girls and women, and a “jurist of historic stature,” in the words of her longtime colleague, Chief Justice John Roberts. Her death is a great loss, not just to the Supreme Court and to the legal community, but to our country and to the world.

Over the weekend, on Twitter, I highlighted some of the wonderful tributes and testimonials to Ginsburg. There are so many amazing ones, and I’m sure I missed a good number, but this essay by Nina Totenberg, the renowned Supreme Court correspondent and longtime friend of Ginsburg, is one of my favorites. Linda Greenhouse’s New York Times obituary for RBG is also well worth reading.

As many of us noted on Friday, Ginsburg’s passing also has major implications for the future of the Supreme Court and the November elections. I didn’t want to get into them right away, instead wanting to take at least the weekend to focus on RBG’s extraordinary life and legacy. But now that several days have passed and many legal and political commentators have started exploring what Justice Ginsburg’s death means for the Court, I will join the fray.

Here are my thoughts on the five individuals — all women, pursuant to President Donald Trump’s promise to nominate “a woman, a very talented, very brilliant woman” — who are reportedly under consideration as his Supreme Court nominee.

Amy Coney Barrett: 1-to-1 odds (50 percent)

Age: 48 (born January 28, 1972)
Current role: Judge, Seventh Circuit (since November 2, 2017)
Education: Rhodes College (B.A.), Notre Dame (J.D.)
Clerkship(s): Judge Laurence Silberman (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 55-43
ABA rating: Majority Well Qualified, Minority Qualified

In a Friday night phone call with Senator Mitch McConnell after the news of Ginsburg’s death broke, Trump mentioned just two possible nominees: Judge Barrett and Judge Barbara Lagoa (11th Cir.). Barrett has been on Trump’s radar for quite some time. He interviewed her two years ago, in the summer of 2018, for the Supreme Court nomination that ultimately went to Brett Kavanaugh, even though she had been on the Seventh Circuit for less than a year by that point. And she apparently came very close to getting it.

At the time, I suggested that Barrett should acquire more judicial experience and be nominated for a future vacancy. And I specifically suggested, back in June 2018, that she could be nominated to replace Ginsburg: “There’s no denying that replacing a woman — and historic crusader for women’s rights — with a man, and probably a straight white man at that, isn’t a great look. Better to save Barrett for the future, by which point she will have more judicial experience under her belt.”

It seems that Trump liked that idea. In March 2019, Axios reported that Trump said of Barrett, “I’m saving her for Ginsburg.” And now that time has come.

Trump has wasted no time in meeting with Barrett, who made her way to the White House and met with the president yesterday. According to the New York Times, Trump “spent much of the day with her and later told associates that he liked her, according to people close to the process, who considered her increasingly likely to be the pick.”

(One wonders whether having them spend so much time together was an attempt by Barrett backers to get Trump more comfortable with her. At their prior interview back in 2018, the thrice-married, not-very-religious Manhattan billionaire and the devoutly Catholic, midwestern mother of seven reportedly lacked “chemistry,” concluding their conversation before their allotted time was up.)

What are the advantages of nominating Barrett? Well, how much time do you have?

I could write a whole other post about why she is Trump’s best pick, in terms of someone who would be both a superb nominee, measured in terms of (1) political advantage and (2) confirmability, and a superb justice, measured in terms of (1) brilliance and (2) conservatism (in a Republican administration; replace this with “liberalism,” or maybe “progressivism,” in a Democratic administration). For now, I will simply refer you to this excellent analysis by conservative commentator Sohrab Ahmari, who makes a comprehensive and compelling case for Barrett.

Her advantages are manifest and manifold. It’s easier to talk about her disadvantages — or really her disadvantage, singular. The only area where Barrett doesn’t lead the list of contenders is confirmability. She’s very conservative and very Catholic, and so liberals and progressives are freaking out over how she might rule as a justice, especially on such precedents as Roe v. Wade (which she is bound to follow as a lower-court judge, but able to revisit as a Supreme Court justice). She was confirmed by a vote of 55-43, with just three Democrats — Joe Donnelly, Tim Kaine, and Joe Manchin — crossing the aisle to vote for her. She might not win the votes of Susan Collins and Lisa Murkowski, moderate female Republican senators who favor abortion rights.

But in this highly politicized time, winning Senate confirmation is like passing the bar exam: you just need to do it, and nobody cares about the margin. And the Republicans should have the votes. It’s quite possible that even a senator who has said there shouldn’t be a vote before the election will, if such a vote is called, cast her vote in favor of the nominee, or at least abstain.

(For example, note that the statement by Collins on the Supreme Court vacancy simply expresses her belief that there should not be a Senate vote prior to the election; she does not commit to voting no if such a vote takes place over her objection. And despite her support for Roe, it’s possible that Collins could be won over by Barrett — who seems to win over everyone she meets — just as Collins was won over by then-Judge Kavanaugh.)

Because of Barrett’s credentials and conservatism, combined with the political advantages for Trump in terms of galvanizing evangelicals and Catholics in midwestern battleground states, she is the odds-on favorite.

Barbara Lagoa: 3-to-1 odds (25 percent)

Age: 52 (born November 2, 1967)
Current role: Judge, Eleventh Circuit (since December 6, 2019)
Education: Florida International University (B.A.), Columbia Law School (J.D.)
Clerkship(s): none
Senate vote history: 80-15
ABA rating: Unanimously Well Qualified

Judge Lagoa is less well-known than Barrett, since this is her first time in the SCOTUS spotlight. For an excellent overview of her superb credentials and record, see this op-ed by her fellow Floridian, former Acting Associate Attorney General Jesse Panuccio. (He wrote it in support of her Eleventh Circuit nomination, but the analysis carries over to her SCOTUS candidacy.)

Lagoa’s resume — Columbia Law School, Columbia Law Review, and service as both an assistant U.S. attorney and a state appellate judge, on both the Third District Court of Appeal and the Florida Supreme Court — is very strong. It might not be as dazzling as Barrett’s — Barrett clerked for Justice Antonin Scalia, while Lagoa didn’t clerk at all — but it’s worth noting that the ABA committee on judicial nominees unanimously rated Lagoa “Well Qualified” for the Eleventh Circuit, while rating Barrett “Well Qualified” by a mixed vote.

What might give Lagoa the edge over Barrett? There are two possible factors.

First, Lagoa was confirmed to her current post on the Eleventh Circuit by a vote of 80-15 — an overwhelming margin in these highly partisan times, when superbly qualified judges squeak by with party-line votes — and she was confirmed very recently, less than a year ago (on November 20, 2019). It would be difficult for the Democrats to oppose a nominee who many of them supported just last year.

Second, Lagoa is Latina (Cuban-American) — the first Latina to serve on the Florida Supreme Court — and she is very popular in her home state. Florida is, of course, a big-time battleground state, which Trump carried in 2016, but where Joe Biden now holds a narrow lead in the polls. Nominating Lagoa to the Supreme Court could excite the Cuban-American community, a crucial conservative constituency in Florida, and help Trump take back the Sunshine State.

But in the end, despite being extremely impressive, Lagoa isn’t quite as compelling as Barrett. The political considerations — shoring up conservative support and increasing turnout in midwestern battleground states, versus shoring up conservative support and increasing turnout in Florida — are probably a wash. Lagoa is also slightly older than Barrett, turning 53 in November (while Barrett doesn’t turn 49 until January). So Barrett still has the edge.

Allison Jones Rushing: 9-to-1 odds (10 percent)

Age: 37-38 (born 1982)
Current role: Judge, Fourth Circuit (since March 21, 2019)
Education: Wake Forest (B.A.), Duke Law School (J.D.)
Clerkship(s): Judge Neil Gorsuch (10th Cir.), Judge David Sentelle (D.C. Cir), Justice Clarence Thomas
Senate vote history: 53-44
ABA rating: Majority Qualified, Minority Well Qualified

Judge Rushing has strong support from White House Chief of Staff Mark Meadows, her fellow North Carolinian, as well as social conservatives tied to the Alliance Defending Freedom (ADF), a conservative Christian group she interned for during law school. Like the other contenders, she has excellent credentials, having clerked for not one but two current members of SCOTUS — then-Judge Neil Gorsuch, and Justice Clarence Thomas. Before taking the bench, she was a partner at the high-powered D.C. law firm of Williams & Connolly, where she worked closely with Kannon Shanmugam, a leading Supreme Court advocate (who has himself been mentioned over the years as a possible SCOTUS nominee).

Rushing’s main advantage: she’s 38. Rushing’s main disadvantage: she’s 38.

Rushing also has less judicial experience than Barrett or Lagoa, having served on her current court for less than a year. Barrett has been on the Seventh Circuit for three years as of November, an entirely respectable tenure (and longer than, say, Thomas’ year and a half on the D.C. Circuit). Lagoa has been on the Eleventh Circuit for less than a year, but she has been an appellate judge since 2006, when she was appointed to the state bench.

I’ll say of Rushing what I said of Barrett a few years ago: save her for a future vacancy (maybe that of her former boss, Thomas — although he has made it clear that, rumors notwithstanding, he’s not going anywhere). Nominating her now will give the Democrats too much grist for their mill, including many puns about “rushing” her elevation to the high court.

Joan Larsen: 19-to-1 odds (5 percent)

Age: 51 (born December 1, 1968)
Current role: Judge, Sixth Circuit (since November 2, 2017)
Education: University of Northern Iowa (B.A.), Northwestern Law School (J.D.)
Clerkship(s): Judge David Sentelle (D.C. Cir.), Justice Antonin Scalia
Senate vote history: 60-38
ABA rating: Unanimously Well Qualified

I’m surprised Judge Larsen isn’t getting more buzz in the SCOTUS sweepstakes. She would be a great nominee and a great justice.

First, she has impeccable credentials: she graduated first in her class from Northwestern Law, clerked for Scalia, worked at Sidley Austin, and served in the Justice Department’s prestigious Office of Legal Counsel, before joining the faculty of the University of Michigan Law School. Second, she has ample judicial experience: three years on the Sixth Circuit (she became a judge on the same day as Barrett), preceded by two years on the Michigan Supreme Court. Third, she hails from the battleground state of Michigan, where she is a popular figure, having won her seat on the state’s high court with almost 60 percent of the vote. Fourth, she’d be tough to oppose, having been confirmed to her current seat by a solid margin of 60-38, after the ABA unanimously rated her Well Qualified.

At 51, Larsen isn’t the youngest of the finalists, with Barrett and Rushing as her juniors. But she’s not the oldest either, with Lagoa a year her senior.

Why isn’t she getting more traction? Beats me. But for whatever reason, she’s not in the tippy-top tier of contenders — and with Trump planning to announce a nominee on Friday or Saturday, there’s not much time for her to change that.

Kathryn Comerford Todd: 19-to-1 odds (5 percent)

Age: 44-45 (see her 2004 New York Times wedding announcement, when she was 29)
Current role: Deputy White House Counsel
Education: Cornell University (B.A.), Harvard Law School (J.D.)
Clerkship(s): Judge J. Michael Luttig (4th Cir.), Justice Clarence Thomas
Senate vote history: N/A
ABA rating: N/A

Trump likes familiar faces and prizes loyalty, so one shouldn’t count out Kate Todd, who has served in the White House Counsel’s office since 2019, playing a crucial role in judicial nominations. Like the others on this list, she has a gold-plated resume: Cornell, Harvard Law (magna), a SCOTUS clerkship with Thomas, and partnership at a leading law firm (Wiley Rein).

The challenge for Todd, compared to the four other finalists, is that she isn’t currently a judge. There have been many excellent justices with no prior judicial experience — e.g., Justice Elena Kagan, who served as Solicitor General but not as a judge. But it does give Democrats a talking point, during a time when not giving them talking points is a priority. Also, because Todd has spent much of her career “inside the Beltway,” nominating her might not offer as much political advantage to the president (although as you can see from her New York Times wedding announcement, her family is from Peru, Indiana, where her father retired as an assistant chief of the Peru Fire Department — a nice biographical detail to trot out at a SCOTUS nomination announcement).

My suggestion: if he’s elected to a second term, Trump should reward Kate Todd for her White House service by nominating her to the D.C. Circuit (something I floated as a possibility as early as 2017). Like her former boss Thomas, she could serve on the D.C. Circuit for a year or two, then be nominated for a future vacancy.

The field: 19-to-1 odds (5 percent)

As we’ve learned over the past four years, Trump’s mind can change quickly. He has shown more steadiness on the Supreme Court than on many other matters, perhaps realizing its importance to his electoral fortunes. But the former reality TV star always enjoys putting on a show, including one with a big reveal, so there’s a chance — rather small, but not nonexistent — that he’ll go with someone other than the five finalists.

I do think, however, that Trump will at least stick to his not-so-short shortlist, which has now swelled to 45 names, after his release earlier this month of a fourth list with 20 more names. So for those of you keeping track at home, the seven women on the Trump list who are not listed above are, in alphabetical order, Judges Bridget Bade (9th Cir.), Allison Eid (10th Cir.), Britt Grant (11th Cir.), Martha Pacold (N.D. Ill.), Sarah Pitlyk (E.D. Mo.), Margaret Ryan (Armed Forces App.), and Diane Sykes (7th Cir.).

In this group, I’d say that Grant, 42, has the best shot at breaking out. She’s a Stanford Law grad, a former Kavanaugh clerk (from his time on the D.C. Circuit), the former Solicitor General of Georgia, and a former Georgia Supreme Court justice.

If Trump really surprises us by nominating a man — which I don’t think he can do, having just promised us a woman, but Trump has often done things that people said he couldn’t or wouldn’t do — then I think the pick will be Judge Amul Thapar (6th Cir.), who would at least make history as the first Asian and South Asian American justice.

But let’s not overthink this or get caught up in wild speculation. Trump’s first two Supreme Court picks were longtime leading contenders, consistent with conventional wisdom, and his third one will probably be too.

Judge Amy Coney Barrett, all eyes are on you.


DBL square headshotDavid 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.

Banks’ Airtight Compliance Procedure Involves Laundering Money, Sending Report That Won’t Be Read, Collecting Fees, Laughing All The Way Back To Themselves

Great Outfits in Fashion History (Beauty Edition): In Appreciation of Ruth Bader Ginsburg’s Commitment to the Scrunchie

Who says you can’t change the course of history *and* cultivate a signature beauty look?

Who You Calling Counterfeit?

(Image via Getty)

Over the summer, I spent some time reading the works of Wharton’s Jonah Berger, which I think have relevance to any litigator. We do have to persuade people after all. But this is not a column about persuasion techniques, or even my main takeaways from Berger’s oeuvre. Instead, I want to focus on an observation that I recall reading in one of his works, related to Apple’s continued success in helping shape customer preferences through design decisions made with respect to their products. In one famous example, Steve Jobs himself was involved in deciding the orientation of the Apple logo on the back of the MacBook — so that the logo would look best when viewed by others while the user of the laptop had the cover flipped open. Apple’s attention to such small details has been a major contributor to the outsized success enjoyed by their products.

As another example, we can consider the ubiquitous (but not cheap, and unfortunately very easy-to-lose) Apple Airpods. A simple device, with a host of competitive options available to consumers. But despite their simplicity and the stiff competition in the headphone/earbud space, Airpods have taken off in a huge way. One contributor to that consumer uptake, at least according to Berger’s outlook on drivers of customer behavior, was the decision to make Airpods white. Why? Because we as customers are influenced by the decisions of other shoppers. Being white, Airpods are easily spotted in the ears of their owners. Seeing them in the ears of others spurs non-Airpods owners to buy their own pair, while also validating the decision of existing owners to purchase the product. Put another way, the white color of Airpods helps them stand out in a crowded marketplace (or pre-COVID subway car,) while providing incentive for an ever-greater cohort of consumers to join the club by choosing Airpods for their audio-delivery needs.

Considering the popularity of Airpods, it should not be a surprise that Apple has taken legal steps to help stem the tide of unauthorized Airpods alternatives flooding the market. First and foremost, Apple has trademarks on the Airpods name, as well as the brand name Apple. Those are critical to Apple being able to stop counterfeit Airpods from flooding the market. And by counterfeit, I mean real counterfeits, not just non-Apple branded knockoffs that are easily recognized by customers as Fairpods (or fake Airpods). But even with respect to Fairpods, Apple also has design patents in its arsenal to stop potential infringement, as well as a recently registered trade dress registration (Reg. No 6072526) for the configuration of the Airpods. Or in trademark speak: “configuration of a pair of ear buds in a charging case, featuring smooth, rounded edges and an oblong head for the ear buds, a rectangular shape with smooth round edges for the case, and hinged lid that opens at the top of the case.”

This product configuration mark for Airpods made the news (in both the tech press and for some reason, a leading travel blog) last week, in a very interesting context — where U.S. Customs and Border Protection (the CBP, whose IP protection efforts have been chronicled on these pages) announced the seizure of “counterfeit” Airpods. While such seizures are likely fairly routine due to CBP’s diligent efforts, this one got a lot more attention. Primarily because the products seized were not counterfeit Airpods at all, but rather (pretty expensive) branded alternatives from the large Chinese smartphone maker OnePlus. But product similarity was not really the main story, at least initially, with most outlets choosing to bash CBP for promoting its seizure as one of “counterfeits.” But those same bashers had less to say about whether CBP was correct in seizing the OnePlus Buds for trade dress infringement. While the seized OnePlus Buds clearly sported OnePlus-branding — and were thus not counterfeits — they had also been heralded as “cheap Airpods for OnePlus phones,” at least according to a review that touted their “Airpods-like rigid design.” Such comparisons make CBP’s seizure a lot more plausible.

Like other media outlets, I reached out to CBP’s press agent the day of the seizure announcement and was provided the following statement: “Upon examining the shipment in question, a CBP Import Specialist determined that the subject earbuds appeared to violate Apple’s configuration trademark.  Apple has configuration trademarks on their brand of earbuds, and has recorded those trademarks with CBP.  Based on that determination, CBP Officers at JFK Airport have seized the shipment under 19 USC 1526 (e). CBP’s seizure of the earbuds in question is unrelated to the images or language on the box. A company does not have to put an “Apple” wordmark or design on their products to violate these trademarks. The importer will have many opportunities through the adjudication process to provide evidence that their product does not violate the relevant recorded trademarks.” In short, CBP was doing its job and enforcing Apple’s registered trademark, which was apparently also properly recorded with CBP. Again, considering that at least one prominent review of the OnePlus Buds noted their design similarity to Airpods, it should not be a surprise that CBP took action.

Ultimately, while Apple is happy — and OnePlus not pleased — with CBP’s latest seizure, this entire situation reinforces a few things of interest to IP lawyers and their clients. For one, it underscores the importance of building as much IP protection (over time) for hit products as possible, if only to take advantage of such benefits as summary seizures by CBP of potentially infringing products. Second, it adds fuel to the fire around whether CBP has too much power to make such summary adjudications (with immediate consequences for alleged infringers) or whether Congress should be giving even more bite to CBP’s bark when it comes to IP protection — such as with respect to design patents, as discussed in my column on the topic last December. There, I wrote that “[G]reat care would be needed to avoid gaming of the system by design patent owners, in terms of having CBP adjudicate infringement against competitors without the legal protections afforded by an ITC or District Court case.” In considering that important question, evaluating whether this recent Airpods episode led to a desired result should be part of the analysis undertaken by Congress, along with the views of IP academics who have studied these issues. In the view of at least some, CBP has proven up to the task of policing IP infringement. Others have taken a more critical view. For now, however, CBP has served notice that it can and will exercise its ability to deem products as counterfeit and seize them based on visual comparison with registered marks recorded with CBP. Good news for IP owners, as well as a warning to infringers, particularly those who depend on importing their wares into the United States.

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


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

Begun The Bonus War Has

What was a nice trickle has turned into a tsunami. Law firms are falling over themselves to hand out big time bonuses to associates to show the world how they’ve weathered COVID. And yet some firms are being forced to admit that they aren’t able to keep up with the Biglaw Joneses. Speaking of Joneses, we also check in on a Jones Day associate likely bound for the federal bench despite all normal rules of the profession.

Deshaun Watson Will Need To Prove Fair Use To Avoid Being Sacked In Copyright Case

Houston Texans quarterback Deshaun Watson, who recently signed a $177 million contract extension, has been sued for copyright infringement after allegedly using copyrighted photos, without consent, on his social media pages. Unfortunately, Watson is merely one of the latest professional athletes to find himself named as a defendant for republishing photography on Instagram, Facebook, and Twitter. It is a pervasive issue that needs to be fixed so that athletes can avoid being named defendants for publishing content on social media.

The complaint was filed by photographer Aaron M. Sprecher in the U.S. District Court for the Southern District of Texas. The single count copyright infringement case filed by Sprecher, an independent contributor to the Associated Press who has since been denied credentials by the Texans, is premised on Watson publishing three photos, two of which were shot by Sprecher on September 14 during a game between the Texans and the Cincinnati Bengals and the third of which was taken on January 23 surrounding the 2020 Pro Bowl, to his roughly 1.4 million followers across his social media accounts.

Sprecher is asking for a permanent injunction against Watson from copying, displaying, distributing, advertising, promoting, and/or exploiting in any manner the copyrighted works. He also seeks statutory or actual damages under the Copyright Act, including damages incurred as a result of his loss of licensing revenue.

The lawsuit against Watson is extremely similar to the case brought against LeBron James by photographer Steven Mitchell. In March, James was sued in federal court for not seeking permission prior to publishing one of Mitchell’s photographs on James’ official Instagram account. On August 10, James filed an answer, affirmative defenses, and counterclaims against Mitchell, with the main affirmative defense seeking protection under the fair use provisions of the Copyright Act. Watson should similarly focus his defense on the potential application of fair use.

The first prong of the fair use test looks at the purpose and character of the use, and the biggest hurdle for Watson here is that it appears he merely republished the original content, which means that the use was not transformative. While many individuals have submitted commentary on each post’s comments section, that commentary would likely not be deemed to be new information or insight that amounts to transformative use. Watson’s use would need to be for the purpose of commenting on the actual images themselves in order for the use to potentially be deemed transformative. However, it does not seem that Watson republished the photos in bad faith; he was merely trying to spark conversation on social media surrounding pictures featuring him in his trade. There is an unanswered question as to whether Watson’s use of the photos on his social media, which he has profited from by way of endorsement opportunities, is commercial use. That could be the key component in determining whether the first prong weighs in favor of the plaintiff, defendant, or is a neutral part of the equation.

While the photographs were previously published, Watson does have some strength with the second prong of the fair use analysis, covering the nature of the work. Unfortunately, this factor rarely plays a significant role in the determination of a fair use dispute. The fact the Sprecher was photographing events around him as they occurred could support for a finding of fair use on this issue. He did not create the scene or stage his subjects. Candid shots in public settings often weigh against the creativity element of this prong.

However, the third prong — the amount and substantiality of the portion used — will not be a strength in Watson’s defense. Watson used each individual photograph in its entirety. His saving grace may be that this factor tends to weigh less in a fair use analysis when considering the use of a photograph as opposed to another type of content. At best for Watson, the court could determine this factor to be neutral because no more of the works were taken than necessary.

Finally, and most importantly, the fair use analysis will focus on the effect of the use upon the market for or value of the original. A presumption of market harm would likely apply because Watson’s use does not seem to have been transformative. The court’s concern should be whether Watson’s use usurps the market of the original work. In other words, has Watson’s use brought to the marketplace a competing substitute for Sprecher’s original photograph? This prong not only focuses on the market harm caused by an infringer but also the harm that would result from unrestricted and widespread conduct of the same sort. The whole case could boil down to this fair use factor. Is Watson’s use emblematic of the only market Sprecher’s photographs could reasonably have — licensing to individuals like Watson? Is there already or likely to be a market developed for this sort of activity? Sprecher is affiliated with the Associated Press, which then licenses his content. If Watson and others do not need to pay for such a license, could this destroy Sprecher’s main source of revenue?

Again, the bottom line is that athletes should not be put in this sort of situation where they are using others’ copyrighted material without a license. It should be on the leagues and/or players’ unions to ensure that the athletes have the tools at hand to quickly clear intellectual property issues so that they can celebrate their accomplishments with their fans and further their engagement without running the risk of inviting additional legal exposure.


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

Thanks To COVID-19, Biglaw Summer Associates Are Very Concerned About Job Security, Money

The summer of 2020 was pretty strange for summer associates. Thanks to the coronavirus crisis, law students who normally would have been wined and dined by their Biglaw firms all summer long instead found themselves at home, anxiously experiencing law firm life through their computer screens. But for all that was unusual about this past summer, law students made the most of it. According to a new survey from the American Lawyer, this year’s crop of summer associates were generally satisfied with their virtual experiences in Biglaw. One summer associate at an Am Law 50 firm perfectly summarized law students’ experience in this sentence: “It was the best you could do in this situation.”

So, which Biglaw firms were on top during COVID-19’s summer of sadness? Unfortunately, the summer associate program rankings are yet another thing that the novel coronavirus has taken from us. Although there is no formal ranking this year, the following firms stood out above the rest in the minds of summer associates:

  • Proskauer Rose
  • Morgan, Lewis & Bockius
  • Shearman & Sterling
  • Dorsey & Whitney
  • Clifford Chance

So, what were this year’s summers most concerned about, all things COVID considered? It’s all about the money, honey (and mental health, too). After having witnessed their programs be shortened and austerity measures rolled out across the Biglaw landscape, about half (48.4 percent) of the 2,500 summers polled by Am Law said job security was their top concern. (Last year, summers cared the most about work-life balance. It’s nice to remember when things were so simple, isn’t it?)

Some summers were properly peeved that their paychecks were discounted based on their shortened programs because they were “counting on being paid” for the full length of the program — after all, other firms did paid full freight, despite cutting weeks from their summers’ schedules.

“This probably saved them some money (and maybe they needed it), but after talking with the other summers, I think most of us were really financially hurt by this. Overall, I am not sure that move was worth it because it really hurt the summers financially and it hurt their confidence in the firm,” the associate continued.

That sentiment played out in respondents’ assessments of their firms’ finances. Most of those assessments were glowing. But summers who faced pay cuts had a gloomier perspective. Some saw the reduced compensation as a reflection of their firm’s ability to weather a storm—or, in this case, a pandemic.

On top of pay issues, summer associates were having trouble staying busy. Not only were their hours down — they worked 42 hours a week and billed 20 hours on average, compared to last year, when they worked 43 hours a week and billed 24 hours on average — but the quality of the work just wasn’t up to snuff. Summers were not only working virtually, but they were doing simulated work on fake deals. Why’s that? To protect associate hours. Eeek.

Next up, we’ve got mental health, which is an understandable concern for people who were working alone and feeling isolated during a pandemic. Around 48 percent of respondents said they were concerned about their mental health, up from 39 percent last year. Thankfully, summer associates say their firms have taken their mental health seriously and given it proper focus during these tough times. Seventy-one percent said that mental health seemed like a priority at their firms during the pandemic (up from 63 percent last year).

What do these Biglaw firms have in store for their 2020 summers — most of whom have already received offers of permanent employment — in the future? COVID-19 isn’t quite done with the legal profession yet, so we’ll have to wait and see. In the meantime, congratulations to all of the firms that earned the respect and appreciation of their summer associates.

‘The Best You Could Do’: Summer Associates Rate Their Unusual, COVID-Influenced Experiences [American Lawyer]


Staci ZaretskyStaci 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.

Don’t Freak Out About Applying To Law School During The Pandemic

I know you know this, but it’s a weird time to be alive right now. Nothing is typical and that includes law school admissions. Instead of the standard LSAT that generations of law school applicants have learned to love/hate, COVID-19 has forced the advent of the LSAT-Flex.

The LSAT-Flex is similar to the traditional LSAT but is composed of three 35-minute scored sections instead of five 35-minute sections (four scored and one unscored). It’s an online exam available on any computer with a Windows or Mac operating system, and is proctored through webcam and microphone. All of which is nice — especially if the length of the traditional LSAT was a challenge for you — but how is the new test going to play out when it comes to the competitive admissions decisions?

Good news, prospective law students! According to a new Kaplan survey, it’s really not going to negatively impact your law school chances. Kaplan asked ~100 U.S. law schools how they plan on evaluating the LSAT-Flex compared to the regular LSAT and an overwhelming 92 percent said applicants will be assessed equally regardless of the variety of LSAT the applicant sat for. Plus a second survey found 60 percent of law schools believe an online LSAT “would produce a fair, reliable score for test-takers that I would have confidence in as an admissions officer evaluating applicants.” Only 13 percent disagreed with that proposition, and the 27 percent balance didn’t have a clear opinion one way or the other.

Jeff Thomas, executive director of legal programs at Kaplan, breaks it down for wannabe law student:

“The most asked question we’ve received from pre-law students this year has been, ‘Should I take the LSAT-Flex or wait until I can take the regular LSAT again?’ Now we have an answer. Almost every law school reports that a strong score is a strong score no matter which version of the test you take. There has been lagging skepticism among some prospective law school applicants, but hopefully these survey results erase those doubts,” said Jeff Thomas, executive director of legal programs, Kaplan.

Mr Thomas continues: “At Kaplan, we strongly encourage aspiring law school students to take advantage of the at-home version of the LSAT instead of waiting for testing centers to reopen. Not only is the exam significantly shorter than the regular LSAT, but there’s also no telling when the regular LSAT in testing centers will be offered again, as LSAT-Flex is the only version being administered through the end of 2020. The bottom line is that not only is LSAT-Flex your best option, but it’s your only option until at least early 2021.”

So there you have it — COVID-19 doesn’t mean you have to put your law school plans on hold. And it looks like plenty of applicants plan on taking advantage of that fact.


headshotKathryn 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).