Category: News Feeds

The Fresh Prince and DJ Jazzy Jeff may have lamented that parents just don’t understand, but at least one Second Circuit judge thinks that it’s lawyers who just don’t understand.

Judge Barrington D. Parker Jr. wrote for the majority in a case that revolved around graffiti and the Visual Artists Rights Act of 1990. The Second Circuit upheld the district court decision awarding a $6.75 million judgment in favor of a graffiti artist whose work was whitewashed over as part of a real estate developer’s attempt to bring (more) high rise apartments to Queens. The court found that the developer “willfully” violated the VARA by whitewashing the 5 Pointz complex in Long Island City, Queens, which had been used since the 1990s as a display space for the works of graffiti artists.

The decision turned around whether or not the art had taken on “recognized stature,” and Judge Parker commented on the fluid nature of that standard, and made an… interesting comparison:

“Since recognized stature is necessarily a fluid concept, we can conceive of circumstances under which, for example, a ‘poor’ work by a highly regarded artist—e.g., anything by Monet—nonetheless merits protection from destruction under VARA,” Parker wrote in the 32-page decision.

A lot of people took that line to be a healthy dose of shade at Claude Monet, the French impressionist master. But Parker insists that wasn’t what he meant at all.

Speaking with New York Law Journal, Parker said the intention was only to demonstrate that even lesser-quality works by greats like Monet would still get “recognized stature.” But rather than try to fight on behalf of his real meaning in the court of public opinion, Parker decided the more prudent course of action was just to remove the reference:

Parker, who professed a great appreciation for the arts, clarified that Monet is an “absolutely great artist,” and said it was best to delete the reference, which was incorrectly seen as a criticism of Monet.

“I love Monet, and I’m very heartbroken that I was misunderstood,” he said. “It was easier to just change it.”

The amended opinion has indeed removed the Monet reference.

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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).

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It feels safe to say that Wells Fargo is a pretty miserable place to work these days. The hateful or pitying looks from customers, regulators, family, friends, potential CEOs, Warren Buffett, Jamie Dimon and other outsiders. Sharing an office with 25,000 other people reduced to eating only Popeyes. The bonuses, or lack thereof. The waiting around to see if you’re among the next crop of sacrificial lambs offered up in response to the next fuck-up by someone else. An HR department that sees its role as collecting, rather than addressing, complaints.

I just keep getting disappointed. I got about five friends left.

— Former New York mayor Rudy Giuliani, who currently serves as President Donald Trump’s personal attorney, in comments made after he thought he hung up the phone with a reporter from the New York Daily News. After aligning himself with the president, Giuliani has reportedly become “political poison” among his former circle of friends.

Without realizing he forgot to hang up the phone, Giuliani was carrying on a conversation where he spoke negatively about former New York governor George Pataki, who claims in his upcoming book that Giuliani asked him to call off New York City’s 2001 mayoral election so he could remain in office to handle the aftermath of the 9/11 attacks. “He’s trying to sell a book,” Giuliani said, unaware that the Daily News reporter was still on the line. “Even if we would have had that conversation, it would have been privileged between a mayor and a governor … He’s an honorable guy. I can’t believe he would do that. [He’s trying to make me] sound like a power-hungry politician.”

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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.

As of Tuesday, more than 80,000 people around the world have become infected with the novel coronavirus, originally designated 2019-nCoV and now called SARS-CoV-2, according to the World Health Organization. The overwhelming majority of those cases – and the estimated 2,700 deaths – are in China, particularly around Wuhan, China, where the virus was first detected. However, large outbreaks in South Korea, Italy and Iran have fueled fears of a potential global pandemic, and the Centers for Disease Control and Prevention has said an outbreak in the U.S. is inevitable.

Government health authorities and drugmakers have quickly mobilized to develop drugs to treat patients with COVID-19, the disease caused by the virus, and vaccines to prevent infection. While it will likely be some time before the Food and Drug Administration approves one, several clinical trials are underway. The following are some of the companies that either have product candidates in the clinic or have announced partnerships to develop them with the U.S. Department of Health and Human Services.

Moderna
Headquarters: Cambridge, Massachusetts
Market cap: $10.3 billion
Product: Vaccine (mRNA-1273)
Stage: Phase I trial to begin soon

The company said on Monday that it had released the first batch of its investigational vaccine, mRNA-1273, for use in a Phase I trial among healthy volunteers. A page for the trial was posted on ClinicalTrials.gov the next day, with the National Institute of Allergy and Infectious Diseases – part of the National Institutes of Health – acting as sponsor. The trial page gives an estimated start date of March 6, though NIAID Director Anthony Fauci told The Wall Street Journal Monday that it could start in April. One site, run by Kaiser Permanente, is listed.

Gilead Sciences
Headquarters: Foster City, California
Market cap: $94 billion
Product: Drug (remdesivir)
Stage: Phase II trial initiated

Based on mouse studies showing that an investigational Gilead drug, remdesivir, has broad-spectrum activity against coronaviruses – particularly the SARS and MERS viruses – followed by a report of a COVID-19 patient’s symptoms resolving after taking it, there are now multiple clinical trials testing the drug in patients infected with SARS-CoV-2. The most recent one is a Phase II study that just opened at the University of Nebraska, sponsored by the NIAID, and other studies had previously been initiated in China.

Johnson & Johnson
Headquarters: New Brunswick, New Jersey
Market cap: $379.2 billion
Product: Drug
Stage: Discovery/preclinical

J&J’s Janssen subsidiary is one of several companies that have partnered with HHS’ Biomedical Advanced Research and Development Authority (BARDA), part of the Office of the Assistant Secretary for Preparedness and Response (ASPR), to develop vaccines and drugs for the COVID-19 virus. HHS said in a Feb. 18 announcement that BARDA and Janssen would work together to identify drugs that can be used to reduce the severity of COVID-19 illness and treat infections. HHS said the company would also identify compounds with activity against the virus. Prior to that, J&J Chief Scientific Officer Paul Stoffels said in a Jan. 27 interview with CNBC’s “Squawk Box” that the company was “pretty confident” it could develop a vaccine and had begun working on one two weeks prior. Janssen will work with the Rega Institute for Medical Research in Leuven, Belgium, to screen compounds.

Sanofi
Headquarters: Paris
Market cap: 113.6 billion euros ($123.7 billion)
Product: Vaccine
Stage: Discovery/preclinical

Also on Feb. 18, HHS said it had partnered with French drugmaker Sanofi to develop a vaccine against SARS-CoV-2. Under the partnership, BARDA is providing its expertise and allocating money to fund the vaccine’s development, while Sanofi is using its recombinant DNA-based and egg-free vaccine development system to produce a vaccine candidate. Sanofi and BARDA have had a partnership to develop vaccines since 2004.

Regeneron Pharmaceuticals
Headquarters: Tarrytown, New York
Market cap: $50.5 billion
Product: Drug
Stage: Discovery/preclinical

Like Sanofi, Regeneron is another company that had an existing relationship with BARDA, dating back to 2014. HHS said Feb. 4 that the two would use part of Regeneron’s VelociSuite monoclonal antibody discovery system to rapidly look for mAbs against the COVID-19 virus. The technology platform was previously used to develop monoclonal antibodies against the Ebola virus, used in a recent outbreak in the Democratic Republic of the Congo, and the MERS coronavirus. The system, HHS said, helped shorten processes like antibody discovery and selection and manufacturing for preclinical and clinical studies.

Photo: Stefano Guidi, Getty Images

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Lindsay Kennedy back to our pages.

I live in South Korea with my young daughters and husband. I work remotely as a federal tax attorney, a job I started only one month ago and already adore. I am experiencing the euphoric sense of truly finding my calling in the legal world. Yet, here I sit dealing with the struggles of switching from SAHM to remote, part-time working mom and getting to navigate this new thing called the Coronavirus.

I have lived in Korea for eight months, so I am not an expert by any means. I have had the pleasure of learning about the Korean culture and falling in love with it. The Koreans absolutely adore children. Every face lights up when a kid walks into a room — including and especially store workers, which tend to give kids a different look in the United States. The Korean people have always, from the moment I arrived in Korea, highly prioritized germ prevention. It comes as no surprise to me that a virus with a new name would be treated with such a high degree of concern.

I treated this new thing like any attorney smack dab in the middle of it –- I researched it. I learned the coronavirus spreads like the flu, has symptoms like the flu, kills the same demographic of people as the flu (those with already compromised immune systems), and lasts about the same amount of time in the body as the flu. Since no one in my family has a compromised immune system, I don’t find the possibility of contracting the virus to be all that scary.

I made sure before I started working, I had proper care for my kids lined up -– back-ups plus back-ups to my back-ups and a team of support from friends. This virus has eliminated each option one by one.

The Korean school my 3-year-old attends was the first to close until further notice. The American school was next to close, informing parents at 7:30 the night before it closed for the rest of the week. Then, the back-up childcare facility let me know at 8:38 the night before it closed until further notice.  Friends that have been great assets in trading childcare have chosen to completely isolate themselves. They are scared and are choosing isolation as a means to find control. I am only on day two of having my kids at home and so far, I am lucky that they are being good about playing together and allowing me to work. I am also very lucky to have such a supportive boss.

Everywhere we have gone in the past three weeks, every single person is wearing a mask. Masks are never uncommon in Korea, but they have not been this overt. Hand sanitizers are everywhere. Every elevator has a bottle hanging in it, every store counter, everywhere.

My kids and I have allergies that are flaring up. We ran out of medicine just as the temperatures went from 50 degrees to a chilly rain. Since our allergy symptoms (runny nose, sneezing, coughing watery eyes) are similar to the common cold, flu, and coronavirus, I am scared of being seen.

I am not scared of contracting coronavirus; I am scared of sneezing in public. I do not want to be quarantined for 14 days. The easy solution was for my husband to get our refills. But I do not like feeling terrified that at any moment I could be detained, even temporarily for mandatory coronavirus testing.

The military is doing an amazing job at keeping families informed using social media in the perfect manner. In order to drive onto the military installation, we are now asked a series of questions and our temperatures are checked. Some of the gates to get on post have been closed. Getting on post used to take me three minutes, today after two hours, we were still not on post and gave up.

The airports and train stations all have thermal scans set up. A team stands on the side checking temperatures. I see very few people riding the public buses that are normally full.

There is a general panic in the air. I see the desperate pleas on Facebook by military spouses wanting to leave Korea. For the past few weeks, the Korean school has been sending me daily messages urging and begging families to not take children out of the house. The military has requested individuals not to leave their homes for social reasons, only if completely necessary. Of course, upon hearing this, the lawyer in me immediately started overanalyzing the definition of “social” versus “necessary.”

I used to live in Watertown, N.Y., home of massive snowfalls measured only in feet. When there was a massive overnight snow, we endured a sort of lockdown, as most families experience from time to time. But this is different.

There is a strong sense of panic in the air. Most businesses are closed. I get shameful looks when expressing a desire to take my family sightseeing in Korea. Things continue to change hour by hour. And, most challenging, there is not an end in sight.

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Lindsay Kennedy recently took a position with Eaker Perez Law, doing exclusively U.S. federal tax law. She is also the Executive Director of MothersEsquire. Lindsay’s favorite thing, besides her family, is working to support changes in the legal profession to allow for more non-traditional options so both parents are afforded the opportunity to enjoy their family. She’s a proud mom of two beautiful girls and married to a loving and supportive husband. You can reach her at lindsay@eakerperezlaw.com

Well, well, well. Looks like that English teacher who told you using potty words was unprofessional was wrong.

During Supreme Court oral arguments earlier this week, a Biglaw partner dropped a “damn” to, um, colorfully illustrate his point. It’s no F-bomb, but it’s a victory for all of us who’ve been accused of being foul mouthed.

It happened during the arguments in Opati v. Republic of Sudan. Sudan’s lawyer, White & Case’s Christopher Curran, was in an exchange with Justice Stephen Breyer when he argued SCOTUS had previously held the retroactive assessment of punitive damages was unfair and a “draconian step.” That’s when the juiciness happened:

“So before we attribute that intention to Congress, we’re going to ask Congress to say it pretty damn clearly,” said Curran, paraphrasing the 1994 decision in the case Landgraf v. USI Film Products.

But, I’m sure Justice Breyer wasn’t too scandalized — he did use the word in 1997 during arguments in Richardson v. McKnight. And Chief Justice William Rehnquist let it fly in arguments in Donnolley v. Dechristoforo (1974). In fact, according to Law.com, “damn” has been said a handful of times during oral arguments from 1950-2015. However, the majority of the times it was used it was in quoting the record of the case. But at least one other advocate used “damn” for emphasis:

The one usage was by the late Tim Weaver, counsel to the Confederate Yakima Nation in the 1989 zoning case Brendale v. Confederate Yakima Nation. Weaver told the justices: “What happens on this piece of property directly affects what happens on the next piece of property. If someone wants to build a garbage dump next to your house, it’s pretty damn difficult for you to say to the zoning authority: ‘Gee, you ought to just stick on that piece of property and not let that use override onto my property.’”

Now, the use of “damn” is far from scandalizing, but that doesn’t mean appellate muckety-mucks don’t have thoughts on Curran’s word choice. Gibson Dunn’s Ted Olson said, “My personal opinion is that things like that, unless carefully considered, can distract from the substance of the message being conveyed. I try to avoid any slang, vernacular, argot, colloquialisms, street language, triteness or hyperbole. There may be times when something like that works, but very rarely, it seems to me.”

Paul Smith, vice president of litigation strategy at the Campaign Legal Center, expressed his disapproval, saying, “Supreme Court arguments can be done well in a conversational style, but this just seems a little jarring to me.” And David Frederick, a partner at Kellogg Hansen and author of Supreme Court and Appellate Advocacy, said, “I’m not a fan of using swear words in any court, much less the Supreme Court. It’s impolite and draws attention away from the substance of the argument.”

But Curran seems to be taking it in stride. He reportedly laughed when asked about the usage, saying, “I think the term speaks for itself.”

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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).

Earlier this week, Americans received a rather stark warning from federal health officials about the inevitable spread of coronavirus in the U.S. “[T]his could be bad,” Dr. Nancy Messonnier, director of the National Center for Immunization and Respiratory Diseases, said during a press briefing. “It’s not so much of a question of if this will happen anymore but rather more of a question of exactly when this will happen.”

Biglaw firms across the country are taking the news seriously, echoing the actions of their colleagues abroad and imposing travel restrictions and canceling events.

According to the American Lawyer, the following firms have either postponed or outright canceled their partner meetings and retreats:

• Orrick – the firm’s partnership retreat in San Antonio, Texas, has reportedly been rescheduled over coronavirus concerns
• Norton Rose – partners from certain locations (e.g., China) were not permitted to travel to the firm’s partners meeting in Austin, Texas, due to coronavirus fears
• Duane Morris – the firm’s Asia partners meeting has been canceled, but a firmwide meeting is still planned to be held in Atlanta, Georgia, next month
• Baker Botts – partners from Asian offices will not be permitted to attend the firm’s partner conference in Scottsdale, Arizona

Other firms are prohibiting and limiting travel to and within countries that have been stricken by coronavirus outbreaks:

• Baker Botts – the firm is not permitting any employees to travel to mainland China and will limit travel to Hong Kong to trips made for “essential business purposes” only, and such trips must be approved by management
• Paul Weiss – the firm will not allow any “non-essential” business trips to and from Mainland China, Hong Kong, South Korea, Japan, and Italy, and anyone who has traveled to or from those countries (or who was in close contact with someone traveling to or from them) must work from home for at least 14 days after traveling and may return to the office only if they are symptom-free

Work travel and meeting attendance come second when your health could be at stake.

“This is not something we came up with on our own. This is the advice we are giving to clients,” [Michael] Delikat, [an employment partner at Orrick,] said. “The focus has shifted to preventing transmission.”

He said clients, similarly, are canceling management retreats, banning all travel and rethinking other large gatherings of employees, except for mission-critical travel. Companies are no longer just limiting travel to China, he said, mentioning the possibility of employees, during a work trip, possibly coming in contact with travelers who may have been exposed to coronavirus in a number of countries.

What is your firm doing to protect its employees from potential exposure to coronavirus? Please email us or text us (646-820-8477). Stay safe, everyone.

Paul Weiss Restricts Travel, Orrick Postpones Partner Retreat Over Coronavirus Fears [American Lawyer]

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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.

Donald Trump may not be able to define (or spell) “irony,” but he has nonetheless set up a solid lesson in irony through the Department of Homeland Security. Starting this past Monday, his administration has started implementing its “public charge rule,” which denies immigrant visas and adjustment of status — including green cards, which confer lawful permanent residency — to immigrants the government thinks are likely to depend on public benefits.

And in a neat little catch-22 worthy of The Bad Place itself, U.S. Citizenship and Immigration Service’s rewrote its rules for implementation to say that applying for a green card makes immigrants more likely to depend on public benefits and should officially count against them. Thus, applying for a green card now makes you less eligible for a green card.

It’s just what the Framers wanted!

Some background, for those of you who don’t walk around in a permanent state of immigration-law-related outrage: The public charge rule is actually a part of the Immigration and Nationality Act, but the Trump administration has redefined it to make it harsher. It says immigrants are ineligible for visas or admission to the U.S. if they are “likely at any time to become a public charge.” Previously, the implementation guidance on this gave decision-makers a list of four assistance programs and told them to exclude people who used those programs for more than half of their income.

But DHS under Ken Cucinnelli — the definitely-not-a-racist who rewrote “The New Colossus” to say the opposite of what it means and then argued that it was only supposed to apply to Europeans anyway — has expanded it considerably. According to the Catholic Legal Immigration Network Inc., immigrants are now considered public charges if they are “more likely than not” to participate in cash assistance programs, food stamps, Medicaid, and rental assistance for more than 12 months in total out of any 36. There’s more, but you get the idea: Down with the poor! To underscore the point, the rules even let immigrants who have the means buy their way out of the policy by making a large deposit.

Of course, this being the Trump administration, the actual point is to exclude as many people as possible from immigrating. The Migration Policy Institute calculated in 2018 that the public charge rewrite would expand the number of noncitizens deemed inadmissible to 47% from 3%. And it’s already scaring immigrants into avoiding public benefits programs, even the ones that aren’t on the list, like free and reduced school lunches. Medical policy wonks are particularly worried about the public health effects of keeping a bunch of people uninsured, underfed, and in poor housing.

Immigrant advocates have sued to stop this at least eight times, but the Supreme Court overturned a nationwide injunction in the matter in January, with Justices Gorsuch and Thomas writing to explain that they were rilly rilly concerned about nationwide injunctions. If this sounds familiar, it may be because they abandoned that fig leaf of an argument this week by blocking an injunction that only applied to Illinois. That’s what triggered Justice Sotomayor’s excellent dissent calling out the majority for rubber-stamping every stay the Trump administration asks for, and then Trump’s call for Sotomayor (and Ginsburg, for good measure) to recuse themselves from anything related to him.

On the plus side, Trump managed to spell “recuse” correctly. Hey, when you cover immigration, you have to grasp for whatever silver linings you can find.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

Yesterday, the Justice Department announced the formation of a new section to enforce the president’s MAGA agenda. The Department’s Civil Division will now house a dedicated Denaturalization Section, working to strip American citizenship from “terrorists, war criminals, sex offenders, and other fraudsters.” The government needs full-time staff for all the people we’re going to be chucking out of the country.

“While the Office of Immigration Litigation already has achieved great success in the denaturalization cases it has brought, winning 95 percent of the time,” reads the DOJ press release, “the growing number of referrals anticipated from law enforcement agencies motivated the creation of a standalone section dedicated to this important work.”

“When a terrorist or sex offender becomes a U.S. citizen under false pretenses, it is an affront to our system—and it is especially offensive to those who fall victim to these criminals,” Assistant Attorney General Jody Hunt announced. Which certainly makes it sound like they’re going after scary bad guys, to keep Americans safe.

Except most of the time, they aren’t.

Operation Janus, the denaturalization task force partnered with Citizenship and Immigration Services (USCIS), has combed databases to revoke American citizenship from people who pose no danger whatsoever to their communities.

People like Norma Borgono, a 64-year-old grandmother living in Miami for the past 30 years. The Complaint to Revoke Naturalization against her alleges that, “Between at least April 2003 until May 2009, Defendant conspired to obtain more than $24 million in fraudulent loan transactions from the U.S. Export-Import Bank (“Ex-Im Bank”).”

But according to The Miami Herald, Borgono was a secretary making $500-a-week, who helped her boss prepare fraudulent loan applications, testified against him, and took a plea deal.

Working two jobs, she paid off her restitution and was relieved of her sentence early. Two years after she put it all behind her, Borgono received the letter notifying her that the U.S. government wanted to take away her citizenship.

The stated reason was that Borgono became a U.S. citizen after the fraud scheme started. Although she had not yet been charged when she applied for citizenship, the Department of Justice is now arguing that she lied by not divulging her criminal activity on her application.

“Had the threat to her citizenship been brought up,” during the original case, Borgono’s daughter, Urpi Ríos, told The Herald, “we would have gone to trial or found some way to fight it.”

The Justice Department’s press release trumpets its successful denaturalization of Guillermo Mondino, Borgono’s boss, for “conspiring to defraud the U.S. Export-Import Bank of more than $24 million, resulting in more than $12 million in unrecovered losses.” It fails to mention the ongoing effort to rid this nation of his secretary, a church-going abuela with kidney problems who never pocketed a cent from the scheme.

No one is unhappy that Sammy Rasema Yetisen aka Rasema Handanovic aka Zolja was denaturalized because she failed to disclose that she had been part of a firing squad that executed six Bosnian Croat civilians in 1993. But we managed to do it without a Denaturalization Section. And, unless the feds are expected a wild upswing in undiscovered terrorists and sex traffickers in our midst, the “growing number of referrals anticipated” will probably look more like Norma Borgono than Sammy Yetisen.

With his travel bans, fearmongering about scary caravans of brown people storming the border, declarations of a national emergency as justification to raid military funds for his border wall, and weekly lists of immigrants convicted of crimes, Trump has done everything he can to stoke fear of the OTHER. And there’s no reason whatsoever to see this new Denaturalization Section as anything but a continuation of these racist, xenophobic policies. Particularly when Bill Barr just announced that he would be looking into state prosecutors who “undercharge” defendants to avoid making them deportation-eligible.

What’s the opposite of “benefit of the doubt?” Because this administration has definitely earned it.

The Department of Justice Creates Section Dedicated to Denaturalization Cases [DOJ Press Release]
Miami grandma targeted as U.S. takes aim at naturalized immigrants with prior offenses [Miami Herald]

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