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It does not take much these days to be labeled by evangelicals — or the nation’s highest court and legal figures — as being hostile to religion. In a U.S. Supreme Court opinion, Justice Anthony Kennedy found government hostility towards religion based on a single commissioner’s statements that the refusal of a baker to bake any custom wedding cake for a gay couple simply because they were gay, was an improper or “despicable” form of religious discrimination used by others “throughout history.” Whatever your thoughts are on a finding of hostility in that case (I personally agree with the Court that government hostility existed, but based solely on its second finding of animus), it is just a simple fact that religion has indeed been used to justify every form of discrimination. James Madison, the Founder most credited with establishing free conscience liberty, knew this fact well and in his infamous Memorial and Remonstrance Against Religious Assessments, Madison spoke about the nature of religion’s past when it was supported by the state:

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.

The solution to this history of religious bigotry, according to Madison and other Founders, was to propose a restoration of religion’s “primitive state” where dependence on the state did not exist and funding was dependent on “the voluntary rewards of their flocks.” To Madison, however, returning religion to this primitive state would cause many to predict religion’s downfall. Which brings me to William Barr, our current attorney general.

Recently, Barr gave a speech where, among other claims, he asserted that secularism, or a separation of church and state, was targeting religion for destruction. Barr would also claim that non-religious Americans, or those who reject the religious teachings of Judaism and Christianity in particular, were directly responsible for every societal ill including “depression and mental illness,” “suicide,” “senseless violence,” and furthering “a deadly drug epidemic.” Although Barr’s claims that non-believers are responsible for all societal moral failings are provably false, the response to Barr’s speech by evangelicals was, to my knowledge, universally positive. Even the evangelicals who claim to dislike this president nevertheless proclaimed gratitude that “a man of William Barr’s convictions is heading up the Department of Justice,” and used Barr’s speech as justification for supporting the current president.

I ask my fellow citizens of all beliefs to think about this reality for one second: The Attorney General of the United States blamed citizens who do not subscribe to his religious beliefs/convictions as being directly responsible for the worst elements in society (including violence), and evangelicals universally cheered. Moreover, think about how if you were to replace the word “secularists” in Barr’s speech with say, “Catholics” or “Christianity in general,” how different the reaction would have been. In other words, if any AG had said the teachings of Catholics or Christianity was directly responsible for the country’s violence, drug abuse, and mental illness, can there be any doubt evangelicals would have no problem denouncing that person as a bigot?

Yet, evangelicals see no hypocrisy in celebrating Barr’s speech demonizing those who do not share their beliefs. In many ways, evangelical bigotry is nothing new, as evangelicals today regularly burn secular books, discriminate against secular Americans from giving invocations, force non-believers and those of other faiths to be taxed for the maintenance of Christian monuments, force states to fund property enhancements for churches, force all objecting non-religious people to use currency that conveys upon them a belief and trust in some God they do not have in order to participate in commerce, and force the ever growing non-religious population to subsidize church functions and religious clergy in the billions. Yet, evangelicals with no shame are resolute that they are the greatest victims of society and bias application of the law.

For any student of history, this tactic of the powerful playing the victim while demonizing and discriminating against those who do not share their beliefs is also nothing new. The cause of this latest version is due, in part, to religion’s (particularly Christianity) rapidly declining membership in American society. Like others, however, I expect this decline to stabilize so that in all likelihood by 2030, “[t]he size of most religious groups in America are predicted to be almost exactly the same as they are now.” But for evangelicals who are used to Christian dominance in American politics, law, and social society, this leveling process is a terror. I’ll let Maajid Nawaz, an individual who knows a bit about religious extremism, explain:

When the powerful are being leveled, they become scared. Petrified of losing the deference they believe they are entitled to, they cast themselves anew as the oppressed. Used to receiving preferential treatment, they suddenly feel discriminated against.

And so it has come to pass that every time a powerful group is equalized during times of great social upheaval, they cast themselves as victims.

Combining this kind of fear and bigotry continues to be a central tenet of this administration. The attorney general prior to William Barr (Jeff Sessions), was an equally clear religious bigot who regularly described those who did not believe in his religion as a threat to the country that must be stopped. The current vice president demands that his view — that homosexuality belongs in the same immoral category of unacceptable sexual behavior as pedophilia — should be accepted without criticism, but that “criticism of Christian education in America should stop.” In other words, it is clear from this administration that the concern over religion has nothing to do with “liberty” for all Americans, but rather on maintaining Christian ideological dominance over non-believers.

The combination of fear and bigotry also explains why the same evangelicals who lamented for literal years that Amy Barrett was asked a question once about her religious views, say nothing about Barr’s and Sessions’s more overtly bigoted statements about non-believers. As long as evangelicals continue to install and celebrate religious bigotry in power out of fear, portraying all non-believers as threats coming to get them, things are going to get much, much, worse. However, the only and best recourse we have to such bigotry is an appeal to the Constitution and Madison’s principles of free conscience liberty for all.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Big patent cases take many forms. Sometimes cases earn the moniker “big case” because of the parties (e.g., Qualcomm v. Apple, to take a recent example) involved, or the high-profile nature of the technology (e.g., the CRISPR wars) at issue. Other cases are deemed important because they lead to important changes in the law (e.g., Alice,) or because they end up generating large damages awards. One of the leading contenders in the latter category is the long-running dispute that Bloomberg Law recently referred to as “Merck & Co.’s failed patent infringement case against Gilead Sciences Inc.” over high-priced treatments for Hepatitis C.  (I commend the Bloomberg article to those interested in the potential impact of the latest decision in that saga on life science patents, as well as for the astute comments provided by my partner Zach on the Federal Circuit’s decision to invalidate Merck’s patents.) While the legal ramifications of the decision on the potential validity of many biotech patents are interesting, I think what the case has to teach us about how difficult patent valuation can be is even more important.

For those unfamiliar with the case, the story behind it is an interesting one. In 2011, Gilead purchased a biotech company called Pharmasset for $11B, in the hopes of commercializing Pharmasset’s Hepatitis C treatment. The acquisition was a big success for Gilead, with FDA approval for the Hep C drug Solvadi issued in late 2013. That FDA approval was followed by Solvadi becoming a true blockbuster, with sales in the billions filling Gilead’s coffers almost immediately after approval. With a treatment population of hundreds of millions of people worldwide needing a cure, Gilead’s acquisition of the rights to Solvadi looked like a big win.

With the success, however, came some negatives. For one, Gilead’s pricing for Solvadi, at over $80,000 per course of treatment, came under fire — including from high-profile politicians like Brooklyn’s favorite Bolsheveik and current presidential candidate, Bernie Sanders. (Though because Solvadi is a true cure for Hep C, Gilead’s recent financial performance has suffered for lack of repeat customers.) Second, Gilead’s financial success with Solvadi attracted patent lawsuits, filed by companies hoping for some royalties on Solvadi sales. One company, Idenix, was perhaps the most aggressive with its patent assertion, filing suit against Gilead almost immediately after Solvadi’s FDA approval was announced in December 2013. With billions at stake, the case immediately became one to watch — for both life sciences IP lawyers and investors in both Gilead and Idenix.

While the case has taken years to unfold, Idenix enjoyed an immediate benefit from its tangle with Gilead, with Merck acquiring the company at a hefty premium in 2014. How much the Gilead case played into Merck’s valuation at the time is an open question. (Since then, Merck has taken a heavy write-off on its Idenix acquisition, fueled by the commercial failure of Idenix’s Solvadi competitor.) Either way, the case proceeded on a fairly typical track, albeit with a transfer to Delaware from Massachusetts where it had been filed, culminating in a two-week jury trial at the end of 2016. The headline from that trial was the absolutely massive $2.5B verdict rendered by the jury after less than two hours of deliberation. 

But as with most good news for patentees over the past half-decade (at least), the good times did not last long for Merck. In fact, not only was the damages verdict wiped out on post-trial motions, but the patent asserted by Merck was invalidated by the district court for lack of enablement. That decision was affirmed recently by the Federal Circuit. In a split decision, the patent worth billions was confirmed as worthless. Interestingly, the majority decision never even mentioned that the jury’s verdict had been such an unprecedented and large one. Instead, the court focused on whether or not the patent was enabled based on the claim construction used by the district court. The majority concluded that it was not, since the patent didn’t teach one of skill in the art how to make the accused compound without undue experimentation. Going further, the majority also found the patent invalid for lack of written description — an ignoble “double death” thereby dealt to what a jury had recently considered one of the most valuable patents of all time. Taken together with the majority’s failure to mention the billion-dollar verdict in its opinion, it is not hard to imagine that finding the patent invalid on multiple grounds was a way of insulating the panel’s decision from criticism around rendering worthless a patent that was subject to one of the biggest verdicts of all time.

As is her wont, however, the Federal Circuit’s Judge Pauline Newman was unafraid to criticize her colleagues in a passionate dissent. Criticizing the majority’s approach to conducting the appeal, Judge Newman argued that the threshold question in any patent case is how the patent should be construed. Concluding that the construction advanced by the district court and carried through by the majority was wrong, Judge Newman’s dissent argued that the “claims, correctly construed, are valid and not infringed.” In short, in Judge Newman’s view the patent is valid, but Merck would take nothing from Gilead since there was no infringement under the proper construction.

Ultimately, it is telling that under either approach advanced by the Federal Circuit panel, Merck’s patent would be worthless. So did Merck get it wrong to the extent the value of Idenix’s patent portfolio influenced its decision to acquire the company? Or did Merck do the right thing in persisting with the Gilead lawsuit until now? The answers are not clear, especially since one can argue that the Idenix patent asserted at least had a potential value of over $2B, even though that valuation couldn’t withstand the pressure exerted by the crucible of intensive litigation through trial and appeal. Not every patent will go from billions to zero, of course. But it behooves all patent owners to remember that no patent is immune from potentially going to zero. And that choosing to enforce a patent is the quickest path to determining what its true value is. 

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.

It’s not easy being a criminal defense attorney. If you work for a public-defender organization, the case load is high, the pay not great, and frustrations abound.  It’s difficult to win; often you’re not favored by the judge or the law, and sometimes your client thinks you’re less than a “real” lawyer simply because he’s not paying for you.

You’re not only unappreciated but you might also be the target of physical attacks, anything from being spit on to being punched in the nose (as happened to a colleague) after a jury verdict.

With all that stress, no wonder there’s burnout caused by the direct stress of the job — what the attorney has to put up with on a day-to-day basis.  But then there’s also the indirect stress of dealing with traumatized clients.  Compassion fatigue, secondary traumatic stress (STS), and vicarious traumatization (VT) are all terms referring to the stress that occurs from working with traumatized people in terrible straits.

Being exposed to histories of abuse, neglect, poverty, and violence can affect attorneys.  According to studies on burnout (referred to in one study with the unfortunate acronym “BO”), dealing with trauma-exposed clients causes  “an accumulation of stress and the erosion of idealism characterized by fatigue, poor sleep, headaches, anxiety, irritability, depression, hopelessness, aggression, cynicism and substance abuse.”

A survey done in the early 2000s by Pace University found that in comparing criminal defense attorneys with mental health providers and social service workers (who also work with traumatized populations), the criminal defense attorneys experienced more symptoms of STS than the others.  This may be because their case loads are higher and they’re expected to come up with a very specific outcome — a win for the client.

I recently spoke to a public-defender organization in New York where new attorney hires were feeling the initial burn of BO and decided to address their administrators about it.

Instead of just telling the new attorneys to “man up,” office managers brought in an expert on post-traumatic stress.  Senior attorneys poo-pooed the idea as a sop for coddled millennials.  But after attending, even senior attorneys noted that that they, too, suffered symptoms of STS — clipped emotional bandwidth, short-temperedness with family, disturbed sleep, withdrawal, exhaustion, anxiety, and helplessness.  In spite of their initial skepticism, they found the session helpful.

It’s clear that, given the nature of the job, direct and indirect stress go with the territory.  What can be done about it?

Step one is recognizing secondary traumatic stress is real, and should be addressed rather than repressed.  Providing forums for the “regular ventilation” (as the Pace study put it) of such feelings is a start.

Whether it’s training sessions with experts or simply grabbing a beer with colleagues to discuss the week’s high and lows, encouraging people to talk is a good idea.

Next, putting a ceiling on the number of cases any attorney can handle will do wonders.  Fewer cases equals less stress and less burnout.

There’s a certain machoness that goes along with criminal defense.  “Give me the toughest case and I’ll represent the guy,” is the general attitude.  But this if-you-can’t-stand-the-heat-get-out-of-the-kitchen perspective leads to a speedier onset of BO, a no-win for everyone.

I find the attorneys who stick with the job of criminal defense the longest are those who know how to compartmentalize.  Leave the job at the office, go home, develop a fully separate life and set of passions that permit a respite from the day to day.

I don’t know any defense attorney who hasn’t cried (whether on the inside or the outside) at some point of his or her career.  But unless you come up with a way to deal with the pain of others, it’s time to explore other areas of law.  There’s always mergers and acquisitions.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

A new lawsuit filed against the white-shoe firm of Davis Polk alleges the firm participated in racial discrimination and then retaliated against the associate who complained.

The plaintiff is former associate Kaloma Caldwell, who began at the firm in 2012 as a summer associate and then was a lawyer at the firm from 2014 to 2018 and worked in various corporate groups during his time there. According to the complaint, as an African-American, Caldwell was concerned about the firm’s lack of diversity before he began at Davis Polk, but new initiatives at the firm and assurances from leadership that black associates would have opportunities to excel at the firm convinced him to accept the job. However, Caldwell alleges a firm culture that allowed implicit biases to flourish, and minimized opportunities for black associates to advance at Davis Polk. Caldwell alleges that as an associate at the firm, he was regularly left off of team emails for deals he was assigned to and was not invited to participate in conference calls. He also says that more experienced attorneys at the firm would ignore diverse associates, even avoiding eye contact with them.

Caldwell says he complained about the discrimination and implicit bias at the firm on numerous occasions, but rather than fix the problem, it made it worse. Caldwell alleges that the firm actually doctored performance reviews — in the words of the complaint, they were “retroactively created after Plaintiff engaged litigation” — to manufacture a reason to fire him after he complained about the alleged discrimination. Caldwell says that in addition to these negative performance reviews that were inconsistent with the feedback he received in real time, he was increasingly isolated, and not given any work, which the complaint describes as a “barrage of direct and indirect forms of harassment and humiliation.”

Davis Polk has not yet issued a comment about the litigation.

Read the full complaint below.

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).

On Sunday, an eagle-eyed observer, pun intended, managed to snap near simultaneous shots of not one but two birds inside the Harvard Law School library.

For those of you just catching up with this story, there’s been — we thought — a solitary bird loose inside the library and defying all efforts to get it kicked out by munching on student food and keeping its energy up. The library asked students to stop letting the bird get access to their food, which prompted the bird to take to social media to lodge its objections.

We have received one disturbing report that a severed wing was spotted in the library. Hopefully this was just a lost feather and not an injury occasioned by a botched humane capture effort. Still, even if one bird was taken out of commission, two more may rise in its place!

This picture suggests Langdell Bird may already have an accomplice — another soldier in the ever-growing Avian Army.

Processed with MOLDIV

If cinema has taught us anything, it’s that Harvard is about to get massacred by a bird uprising. Sorry Harvard, we don’t make the rules.

Congratulations to Stanford on your USNWR ranking bump.

Earlier: There’s A Bird Loose Inside Harvard Law School… Time To Call Cat Lawyer!
The Harvard Law School Bird Has A Twitter Account And He’s NOT Happy About The Food Situation

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.

Law Jobs for Humans 2.0, our second first-of-its-kind legal professional development conference, is coming up next week (November 15 in New York City) and tickets are almost sold out! Almost is the operative word though – because there just happen to be 15 left, and we are sure they are going to get snatched up quick.

The event will be bringing together legal innovators, law school educators, law school students, and non-traditional legal professionals for discussions about the changing legal employment landscape and on how to create a career path for the 21st century;  if you’re someone who is interested in fresh and unique jobs in the new frontier of legal careers, this event is for you.

So you’d better act fast! If you haven’t purchased your tickets yet, you can buy them here – you won’t want to miss this!

One of the conversations I became engrossed in during Relativity Fest a few weeks back is the idea of corporations taking a more aggressive approach to moving their data — specifically, their electronic discovery data — to the cloud. It’s conversation I’ve been having for years and one that I’ve had several times since I left Chicago.

The question is what are corporations doing in this area?

And let’s set this up with some context. I’ve always been sort of old-school when it comes to the cloud. I think it stems from my many years working at law firms. Lawyers, we all know, are some of the more risk averse professionals in the world. I think some of that rubbed off on me.

But like any good, progressive-thinking person working in legal technology, I like to think that I’m able to evolve. And when I really think about it, law firms have been saying no to the cloud for many years, not because they enjoy investing millions of dollars every year in infrastructure, but because their clients were objecting.

Now, I think we are seeing a seismic shift and the corporations — and legal operations professionals in particular — are taking control. The cloud is not so scary anymore. With the rise of cloud-based Office 365 and a host of other applications, it seems to me that in five years most of our data will be in the cloud.

But is your organization ready to make the move?

I spoke recently with Chris O’Connor, William Belt, and Sue Tang at Complete Discovery Source, a New York-based company providing the full spectrum of eDiscovery services across the legal industry to corporations, law firms, and the government. Among the services CDS provides is assisting corporations to migrate their data to cloud and SaaS-based systems.

O’Connor, CDS’s Director of eDiscovery Strategy, agrees that corporations are retaking control of their data. “Corporations fear risk and cost,” he says. “Clients, even in the financial services space, are coming around and developing a go-to-cloud strategy.”

Security has always been a concern, of course, and CDS has made the strategic choice to take advantage of the Relativity’s new SaaS-based offering RelativityOne. For them it came down to not only having the geographic reach and ubiquity of a leading product, “but also the baked in maintenance and the security,” says Bill Belt, CDS’s Director of Consulting. “Do you want your data at 10 different law firms, or would you prefer that would-be hackers face the prospect of going up against Microsoft’s security?” asked Belt rhetorically.

O’Connor recommends that organizations exploring a move to the cloud, particularly to RelativityOne, “have a clear and thorough understanding of the organization’s current platforms, data sizes, technical and business requirements.” He says that among the first things any company needs to do is prepare a clear and detailed project scope, including a project overview, assumptions, timelines and deliverables. Roles should be defined, and milestones should be set “so everyone has a clear understanding of what to expect,” he says.

For those considering a move to RelativityOne, it’s important to walk through the platform to identify areas where your organization needs to make design decisions for workflow and template creation, including field mapping and other areas where users must make decisions. Another recommendation from O’Connor is to prepare user acceptance training scripts that mirror the workflow and design decisions for the various roles within an organization. Finally, it is necessary to properly track the migration process, report on current status, and conduct quality control checks.

“Detailed planning, documentation and management is key to a successful implementation,” says O’Connor.

Over the course of the past decade we have seen tremendous growth in cloud-based applications. Gartner predicted just a few years ago that half of all enterprises would adopt an all-in cloud strategy by 2021. My guess is that in the next five years, that number will only trend upward. If your organization does not have a roadmap for a move to the cloud, it may be time to start developing one.

Mike Quartararo

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

* R. Kelly has hired a lawyer who specializes in plea negotiations. He might be singing a different tune about case strategy. [Chicago Tribune]

* President Trump has been sued for defamation for statements made about sexual assault allegations. [Rolling Stone]

* The lawyer defending a Brooklyn judge on obstruction charges has been implicated in the case, according to federal prosecutors. This might be a case where a lawyer needs a lawyer. [New York Post]

* The Justice Department has warned the anonymous author of an upcoming expose on the Trump Administration that she or he could be in legal trouble. Hence, why this person has remained anonymous. [Deadline]

* A White House lawyer has indicated that he will not comply with an impeachment inquiry subpoena. [The Hill]

* An Oregon public defender refused to press charges against a homeless man who stole her coat while in court for drug charges. This lawyer can definitely say she’s kind enough to offer the coat off her back… [Oregonian]

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.

A notice received from police by the Apex Council of public sector unions said the protest could go ahead but also warned that police would stop the march if it turned violent.

“The regulating authority still reserves the right to stop the gathering should it turn out to a public order threat or violent. Police will monitor,” Oscar Mugomeri, police commander for Harare central district, wrote in the letter.

Mugomeri could not be reached for comment on Monday.

Unions say Mnangagwa’s government has not responded to demands for U.S. dollar-indexed salaries to cushion public sector workers against inflation that economists say reached 380% in September.

Daily life in Zimbabwe is getting harder, with prices of basic goods, fuel and electricity rising as hope fades for a quick economic recovery under Mnangagwa, who took power after the late Robert Mugabe was ousted in a coup in 2017.

Mnangagwa has banned several opposition protests and faces accusations that he is using Mugabe’s heavy-handed tactics.

Police have been on high alert since January when fuel protests turned violent and at least a dozen people were killed during a security crackdown.

Unions want the lowest government employees paid the equivalent of $475 (7,251 Zimbabwe dollars) a month compared to the 1,023 Zimbabwe dollars they earn now.

Finance Minister Mthuli Ncube, who projects the economy to contract by 6.5% this year, has said the government cannot meet the workers’ demands.

Charles Chinosengwa, spokesman for the Apex Council, which represents 230,000 workers – excluding the health and security sectors – said unions were mobilizing members from across Zimbabwe.

“This is strictly a labor issue. We don’t need support from politicians, we are saying hands off to politicians,” he said.

Shortages of foreign currency, fuel and power are among the most visible signs of a crisis that has revived memories of 2008, when hyperinflation wiped out savings and forced the government to abandon its currency.

Mnangagwa says Zimbabweans should be patient while his government pursues economic reforms, including gradually cutting subsidies on fuel and electricity and the re-introduction of the domestic currency.

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