Category: News Feeds

The nation’s governors have banned mass gatherings to stop the spread of the deadly coronavirus, and the Justice Department is on the case! Not to give them the support they need to keep Americans safe. Don’t be silly, Donald Trump has been very clear that the federal government isn’t a “shipping clerk” for the states. No, the DOJ is busy threatening any state or municipality which might infringe on the sacred right of Christians to assemble during a pandemic.

“AG Barr is monitoring govt regulation of religious services,” tweeted Department spokeswoman Kerry Kupec, who came to the DOJ from Alliance Demanding Freedom, where she spent her days attacking laws that protect trans kids because, “Big business shouldn’t be advocating for boys to share the girls’ locker rooms and showers — and vice versa — in our public schools.”

Ain’t she a peach!

“Expect action from DOJ next week!” Kupec promises vaguely, warning that Big Brother Barr is keeping an eye on those pesky states. Which is entirely consonant with Barr’s recent ramblings to Laura Ingraham that, “A free society depends on a vibrant religious life by the people, so any time that’s encroached upon by the government, I’m very, very concerned.” But not entirely consonant with facts or law.

Because here on Planet Earth, no one is “singl[ing] out religious orgs” for persecution. Kansas’s Governor Laura Kelly actually removed an exemption for churches from the ban on mass gatherings, and had to sue the legislature to enforce it. The difference between cars parked at the grocery store and cars parked in a church parking lot during a stay-at-home order is obvious to anyone but a 38-year-old wingnut judge in Kentucky auditioning for a spot on the Supreme Court. And curtailing the spread of contagion by barring large assemblies is a reasonably well-tailored measure to advance a “compelling governmental interest,” such that it clearly satisfies the strict scrutiny requirement for laws affecting religion.

“A Justice official” was duly dispatched to CNN to clean up Kupec’s tweet.

A Justice official said Barr is examining multiple instances around the country, not just the case of Louisville’s, where it appears religious institutions may have been singled out in Covid-19-related public gathering restrictions.

Government can legally limit assemblies, including religious gatherings, to protect health and safety, the official said. But the government may not impose special restrictions on religious activity that do not apply to similar nonreligious activity.

If a municipality imposes fewer or no restrictions on movie theaters, restaurants, concert halls and other comparable places of assembly, it may not order houses of worship to close or limit their congregation size, according to the official.

Ah, yes. In the very real town of Thatneverhappenedville, BS, the evil Democratic mayor has allowed the local multiplex to remain open, but arrested the pastor and his wholesome, cornfed family for assembling to honor the Lord. You bet!

The Department’s Voting Section appears to have done exactly nothing in three years besides issue mandatory reports to congress. But for spurious efforts to protect “religious freedom” to spread disease during a pandemic, Uncle Bill’s got all the time in the world.

DOJ says to ‘expect action’ next week on social distancing regulation and religious services [CNN]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

While the legal academy moves overwhelmingly to a mandatory Pass/Fail approach this semester, the public law schools in Georgia continue forging ahead with letter grades despite, from what we hear, the recommendations of faculty and administrators. The root of the problem appears to be the University System of Georgia’s Board of Regents, a group of political appointees taking their cue from the Governor’s Mansion and trying to remain willfully ignorant of the scope of the crisis on the schools they ostensibly run.

For Governor Kemp, it was bending over backward not to learn that the disease was spread by asymptomatic cases, while for the Board of Regents, it’s all about not listening to the academic professionals at the schools about what steps must be taken to put students in the best position to further their careers after this passes. There’s also a petition with over 600 signatures — over half the total number of public law students in the state — asking the Board of Regents to wake up to academic reality.

Word on the street is that the USG claims that Atlanta Biglaw is pushing them to maintain letter grades. The Billable Hour Rules Everything Around Me, indeed. Except this doesn’t really sound plausible. Even if this was true at one point early in the crisis, times change and it’s hard to imagine anyone is adamant about this point now. Firms are laying off their existing staff and campus interviews are getting rescheduled — hiring strategies are going to get a serious reevaluation after all this is over and “Spring 2020 letter grades” are going to be the least of the concerns.

Indeed, supposed Biglaw pressure did not stop Emory from going mandatory Pass/Fail, a move that all but invalidates the USG position — employers are not going to blanket disregard a bunch of Emory applicants in favor of someone from Georgia State with a B+. The path to screwing over law students is in positioning them as outliers compared to their peer candidates.

But USG’s intransigence on the grading question comes with an even dumber twist. Instead of soldiering ahead with the standard curve — a bad enough idea — the schools are allowed to modify the curve, upping it to a 3.7-3.9 based curve. Apparently, in the eyes of the USG, Pass/Fail lacks academic integrity but naked grade inflation doesn’t. So… to serve the needs of employers who claim they need to know where students really stand, they’re going to let people get As who wouldn’t have gotten As? This is just nonsense.

And, yes, adjusting the curve is the best solution available from the perspective of the law schools who are trying to cushion the fallout that months of upheaval will wreak upon exams. But it’s not the ideal solution — shown to us by the wisdom of law school crowds — and it fails to cure the only issue that USG claims to be concerned about.

It’s almost like law schools staffed with professional legal educators should have the authority to set law school policy instead of a bunch of bankers beholden to Georgia politicians.

Weird.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Law firms are being forced to adapt at an unprecedented pace to the unfolding global pandemic. Traditionally, firms were deliberate and late to respond to change, whether it be technological innovation or shifting market conditions. Today, however, law firms have no choice but to reprioritize and reconfigure their workflows and client relationships due to the COVID-19 outbreak. Further, there is a heightened imperative to honestly communicate and manage the expectations of the firms’ partnership and staff.

We want to get a sense of how associates are perceiving their firms’ responses to our current circumstances.  In partnership with our friends at Major Lindsey & Africa, we are fielding a brief survey that looks to gain insight into such topics as:

• Communications transparency;
• Technological resources;
• Preferred methods of communication; and
• Long-term effects on the profession.

The question of how, exactly, law firms should deal with the economic uncertainty surrounding COVID-19 remains an active one. While we’ve seen a range of responses from Biglaw, from layoffs, to furloughs, and associate salary cuts, one of the more vexing question remains what to do with staff who are dependent on physical locations to do their job and cannot work from home.

Sheppard Mullin, currently clocking in at 56th in the Am Law 200 ranking, just announced furloughs for a small amount of their staff. Those impacted are those that cannot work from home, and, in a statement from the firm, they’ve revealed staff members will continue to have medical benefits and will receive a bridge fund grant (funded by partners’ personal funds):

Sheppard Mullin today furloughed 33 of our 823 staff. We furloughed these team members because they cannot perform their jobs (such as receptionists, support services and file center employees) from home. These personnel have been on payroll through the four weeks of our Work From Home program. They have been told to expect to return to work in 60-90 days. Given the levels of unemployment insurance available, none of those furloughed will experience reduced compensation. During the furlough, Sheppard Mullin will pay for full medical benefits and will not require the furloughed employees to contribute to the insurance costs. In addition, because of the lag time between when an employee is furloughed and when unemployment benefits are received, partners and senior management have contributed personal funds to create a Bridge Fund to provide full equivalent take-home pay during the wait. These bridge funds are a grant, not a loan, and will not be paid back.

And that’s it for austerity measures, at least for now. The firm says while layoffs are off the table, pay cuts or other measures haven’t been decided. The firm statement goes on:

Aside from the furlough of these staff members, we have made no other decisions regarding additional furloughs or a reduction in hours or compensation. We have no intention of doing any layoffs. Our goal is to treat all of the Sheppard Mullin family fairly and with consideration, while making sure we remain a strong firm.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

We look forward to welcoming our newest colleagues to the firm. We are confident that, together, we will be able to meet the challenge of the months ahead and hold a Summer Program and a 1L Fellowship Program, in whatever form those programs take, that are rewarding, successful, and engaging.

— Abid Qureshi, chair of Latham’s global recruiting committee, in a statement given as to the status of the firm’s incoming summer associate class. Latham still plans to hold its annual program, but the form it will take remains up in the air. The firm remains fully financially committed to all of its summer associates.

(Recall that in 2009, during the height of the Great Recession, Latham laid off 440 employees — 190 associates, 250 staff — in a single day. From then on, “Lathamed” became slang for getting laid off.)

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

“Soon we’ll be living on basic income and just podcasting at each other all day.”

That prediction, delivered two weeks ago by lawyer and writer Mike Whelan on Twitter, was no doubt tongue-in-cheek. But now, it is also seeming prescient, as a cooped-up community of legal professionals with new-found time on their hands launch ever-more and ever-more-frequent podcasts.

The most telling evidence of this is that, in the space of three weeks, we have gone from zero daily legal podcasts to three daily legal podcasts.

Of this new crop of daily podcasts, Greg Lambert, already a podcaster with his and Marlene Gebauer’s show The Geek in Review, was the first to make the most of his sheltering in place by launching a podcast about — what else — sheltering in place and working from home. Started March 22, Lambert calls it In Seclusion.

Two days later, on March 24, and just a day after he recorded an episode of my LawNext podcast, Jack Newton, cofounder and CEO of practice management company Clio, launched Daily Matters, a podcast (with video) devoted to exploring the new normal for law firms.

Not to be outdone, Laurence Colletti, executive producer of the Legal Talk Network, apparently not content with being holed up in sunny San Diego, launched his own “dailyish” podcast, Legal Talk Today, featuring short episodes covering essential legal issues.

I’m not one to talk, as I recently launched a second podcast, Legaltech Week. But, honestly, I’d been thinking about this before the pandemic hit. Like my other podcast, it is weekly, not daily, and I am trying to keep each episode mercifully short at 15 minutes or less.

And I also should acknowledge that I have blood in the game, so to speak, insofar as my son Ben Ambrogi, the producer of my shows, has now formally launched Populus Radio, a company that is in the business of producing podcasts.

But it does sometimes seem that we are getting to the point where having a podcast is de rigueur.

For instance, when Dan Lear, former director of industry relations for Avvo, announced last week that he was taking a leadership role with epayment company Gravity Legal, the announcement came with the news that he would also launch a podcast related to the role, Financially Legal.

It is difficult to know just how many law-related podcasts there are these days. But here is the irony: Even as sheltering in place gives us all more time to make podcasts, there are indications that people are spending less time listening to them.

I conducted my own Twitter poll on this question. I asked whether sheltering in place had caused to people to listen to more or fewer podcasts. Fifty-six percent said they are listening less, and 22.5 percent said they are listening more.

The company Podtrac, which tracks podcast downloads and audience growth, found that both were down starting from March 9. Podcast downloads decreased 1% the week of March 30-April 5, 4% the week of March 23-29, 2% the week of March 16-22, and 1% during the week of March 9-15, across all its measured podcasts.

Audience also decreased over most of that same period, decreasing 5% the week of March 23-29, 8% the week of March 16-22, and 2% the week of March 9-15. Audience rose by 1% for the week of March 30-April 5.

Worth noting, however, is that even with these recent drops, Podtrac says that podcast downloads have grown by 24% and audience has grown by 9% since the start of the year.

Does this plethora of podcasts mean listeners will lose interest or that the field will be glutted?

This was a question that was also often asked in the early days of blogging, as the number of legal blogs grew from a dozen or two to hundreds and then to thousands.

My answer for podcasts is the same as it was for blogs. If you create content that is of consistently good quality and of interest to your intended audience, the readers or listeners will come.

In fact, in this time of seclusion, podcasts may be more relevant than ever. They connect us not just through words, as on a printed page, but also through the sounds of the voices that speak those words, creating a kind of intimacy that only audio can.

For me, this was most striking during my LawNext interview this week with David Lat, the founder of Above the Law, about his battle with COVID-19 and his 17-day hospitalization. His voice, still hoarse from intubation, conveyed the pain and emotion of his experience in a way his written words never could.

So are we all destined to be podcasters now? Maybe. And maybe it wouldn’t be the worse thing that could happen.

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

As quarantine circumstances go, Neel Kashkari’s got it pretty good. The Minneapolis Fed president isn’t in a COVID-19 hotspot, has plenty of room to socially distance and mountain bike at his rustic northern lodge, enjoys the company of two extremely large dogs to stave off loneliness, and has plenty of cheap beer and seasoned wood (and, presumably, Gilette Fusion razors) to keep himself warm (and bald) for however long this lasts. And that’s good, because the most interesting man in central banking thinks this is going to last for a long time.

Professor Stephen Bainbridge is quick to point out that he’s “no Darth Vader” when it comes to internal Federalist Society politics, but the UCLA professor is still eager to pass along some of the worst ideas circulating. So maybe it’s more fair to cast him as the Kylo Ren of this operation — just out in Darth Vader cosplay taking all the wrong lessons from Vader’s arc.

As with everything these days, this is a tale about COVID-19, a subject where a Corporations professor is decidedly not an expert. But he’s got takes!

Dude, he can’t even get the animals right. While the “bat” still enjoys a lot of play in the right-wing echo chamber, the prevailing wisdom is that it was pangolin consumption that carried the disease to humans. Regardless of the specific animal, despite the fervent desire among the American right-wing to construct the pandemic as the result of “backward” cultural forces in China, most Chinese citizens are already in favor of regulating or banning this practice and far from a “traditionalist” practice, the market for these goods suggest that wildlife consumption is increasingly the domain of the upwardly mobile classes flaunting wealth. In a sense, it’s not too different from the American hunting culture where it’s the wealth management VPs dressing in designer camo to take down walking venison steaks.

While trafficking in “oooh, they eat wild animals” tropes may conveniently distract from the role economic liberalization and a dangerous commitment to small government and slashed public health expenditures played in all this, it’s not particularly informative except as a means of scapegoating an other for eating “the bad wild animals” as opposed to Americans who eat “the good wild animals.” Which are good animals because we kill them with our constitutional rights, obviously.

But he thought Twitter might be a good place to muse that his Chinese students may have given him COVID-19:

No one else at the school got sick, but he still thought despite this that it was worthy of posting to a public forum that one of his Chinese students might have given him the virus. Let that sink in. As a matter of professional judgment, he thought it was a good idea to suggest that students at the school were spreading the disease even though he had no evidence to support this claim and, admittedly, compelling evidence that it wasn’t true.

Except they were Chinese, so… here we are.

As he maintains, Bainbridge is no Darth Vader. He didn’t come up with this xenophobic shorthand. He just passes it along through his feed. But it’s almost as if the original source of the bad idea isn’t as troubling as those who choose to continue spreading it without thinking about it. If only there were some sort of scientific corollary to someone acting as a vector to spread something so we could see how repeating bad ideas is as problematic as being the original source.

Barring that sort of instructive analogy, maybe just don’t go around Tweeting accusations about students.

Blaming China for coronavirus isn’t just dangerous. It misses the point [The Guardian]

Earlier: Law School Profs Throw Fit On Twitter Over Having To Answer Basic Reporter Questions

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Hey, all you cool cats and kittens! How was your weekend? I sure hope it was relaxing and you were able to put a pin in all of the bad news the pandemic has brought to your door. But whether you had a great holiday weekend or if you (understandably) couldn’t put the creeping horror to bed for the weekend, more Biglaw austerity news is sure to ruin your Monday morning vibe.

The latest firm to enact cost-cutting measures is Kilpatrick Townsend & Stockton. The Biglaw firm notched $450,324,000 in 2018 gross revenue, making it 78th in the 2019 Am Law 200 ranking. But as we’ve repeatedly seen during the COVID-19 economic downturn, no amount of previous success can really insulate you from cash flow concerns during the pandemic.

So what, exactly, is going down at Kilpatrik? The firm is cutting partner draws by 10 percent. Associates and other attorneys are seeing a 5 percent pay cut. Hourly staff members are having their hours trimmed by 20 percent. Staff who cannot work remotely have been furloughed.

The firm reportedly had the following to say about the “proactive” cost-cutting measures:

“We have decided to take some proactive steps to adjust our expenses that we feel are prudent under these circumstances,” Kilpatrick said in the statement. “On the financial front, we are a fiscally conservative firm that is well-positioned to work our way through this challenging time.”

Kilpatrick is making the cash-conserving pay reductions after a healthy fiscal performance in 2019 that the 640-lawyer firm said extended through the first quarter of this year. “We had a very strong first quarter and were running at full speed before the pandemic,” it said in the statement.

“We, like most if not all law firms, anticipate that our revenues will decrease as a result of the economic turmoil that the COVID-19 global health crisis is causing. Our goal is to find the best way to build a bridge over the anticipated economic downturn and come out strong on the other side,” the firm’s statement said.

The good news, such as it is, is that the firm has established a hardship fund where employees who need additional assistance during the global pandemic can apply for moneys. A reduced-hours schedule is also available for “anyone having challenges working a full schedule in a remote-working environment.”

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

The former New England Patriots and current Tampa Bay Buccaneers quarterback, Tom Brady, has filed a couple of trademark applications with the United States Patent and Trademark Office that are generating quite a bit of buzz. Brady has filed to register the marks “TOMPA BAY” and “TAMPA BRADY” with the stated intention for use with the sale of clothing, headwear, and footwear.

Brady filed the applications under his corporate entity, TEB CAPITAL MANAGEMENT, INC., which has successfully applied for and registered numerous “TB12” trademarks that cover commercial use for everything from dried fruit and nut-based energy food bars to bedsheets. He also previously failed miserably in an attempt to register the mark “TOM TERRIFIC” for use with apparel, trading cards, and posters.

Brady said that he regretted filing to register the “TOM TERRIFIC” mark after many people expressed anger that the name instead belongs to Hall of Fame pitcher Tom Seaver. He also admitted that it was a “good lesson learned” and that he would “try to do things a little different in the future.”

Filing trademark applications to register “TOMPA BAY” and “TAMPA BRADY” is Brady’s first attempt to do things a little differently with regard to boosting his intellectual property portfolio. Has he learned from his mistakes of the past?

When Brady filed to register “TOM TERRIFIC” he did so only in an attempt to prevent others from using it. In fact, he indicated that he did not like the nickname and did not truly have an intent to use it in commerce. Thus, Brady tacitly acknowledged that he filed the trademark applications for an improper purpose.

An applicant must demonstrate a bona fide use of a mark in commerce for a trademark application to progress from pending status to becoming registered. While an applicant has the right to file an intent-to-use application with the United States Patent and Trademark Office, the application means little to nothing if it never becomes registered, and it cannot be registered unless the applicant eventually offers a statement of use that demonstrates the applied for mark being used in commerce in connection with the goods or services listed in the application.

While Brady apparently never intended to actually use “TOM TERRIFIC” in commerce, he seems to be genuinely interested in receiving registrations for “TOMPA BAY” and “TAMPA BRADY,” even joking with New Orleans Saints quarterback Drew Brees that he never understood why Brees was not making Drew Orleans shirts. This time, people are not taking issue that Brady is palming off another person’s notoriety, as was the case with “TOM TERRIFIC,” but Brady is still the butt of many jokes surrounding the filings.

Gotham Sports Network associate editor Brett Herskowitz tweeted, “Anyone who wears a ‘Tompa Bay’ shirt deserves to be shunned from society.”

Jokes aside, Brady has a strong likelihood of succeeding on registering his two new filings. That is true even though The Dan Patrick Show had been selling “TOMPA BAY” T-shirts on its official website prior to Brady’s filings and despite two individuals applying to register the mark “TOMPA BAY” before Brady submitted his paperwork with the United States Patent and Trademark Office.

On March 18, an Arizona man named Todd Borowsky filed an intent-to-use trademark application to register “TOMPA BAY” for use with athletic apparel. On March 31, a Florida man named Vincent Scotti also filed to register the mark with intended use in conjunction with the sale of hats and shirts. Each application, while it remains pending, could stall Brady’s filing from proceeding. The examining attorney who is eventually assigned to Brady’s “TOMPA BAY” filing could issue a Suspension Notice that would stall the filing while Borowsky’s and Scotti’s applications are reviewed. However, neither Borowsky’s nor Scotti’s application has any real chance of success.

An example of why neither Borowsky nor Scotti should succeed comes by way of NBA veteran Jeremy Lin, who was affiliated with the term “LINSANITY.” Another individual jumped the gun and tried to register “LINSANITY” for use with eyeglasses and lenses. The examining attorney at the United States Patent and Trademark Office rejected his application for the same reasons that examining attorneys, once they are assigned to the applications filed by Borowsky and Scotti, will likely discard the previously filed “TOMPA BAY” applications.

With “LINSANITY,” the examining attorney refused registration because the mark included a name of a particular living individual (Jeremy Lin) whose written consent to register the mark was not of record and because the mark falsely suggested a connection with Lin.

“[T]he term LINSANITY points uniquely and unmistakably to Jeremy Lin and the phenomenon surrounding his accomplishments,” stated the examining attorney’s Office Action. “Therefore, goods bearing the term LINSANITY will be associated with Jeremy Lin because he is so well-known that the public would assume a connection.”

It would be very surprising if Borowsky and Scotti do not receive similar Office Actions, rejecting their applications because of a false connection and a lack of Brady’s consent to register the mark. Brady is more well known to the general public than Lin and “TOMPA BAY” is unmistakingly connected to Brady. There is no prior pending application for “TAMPA BRADY,” and thus Brady should have no issue receiving a registration for that mark once the application progresses and a statement of use is submitted.

Similarly, Dan Patrick’s use of the mark in commerce should not lead an examining attorney to refuse Brady’s “TOMPA BAY” filing based on a likelihood of confusion with Patrick’s sale of apparel. This would be true for the same reasons set forth above. Patrick could be alleged to have been using a mark that is so connected to Brady that Brady’s consent is required. Further, there is arguably a false connection being made.

That said, hopefully Brady did learn some good lessons from the “TOM TERRIFIC” filing and makes the choose to not be a trademark bully with Patrick.

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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.