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I’m not big on apologies in my professional life. Mainly, because I’ve learned that nothing good ever comes of them. This tried-and-true life experience is compounded by the issue of having lady parts. I don’t want to make any broad, sweeping generalizations here (hint: I’m going to anyway), but I think those of us with lady parts apologize too much, and it’s not a good look. So, I have worked long and hard to eradicate this word from my knee-jerk reaction list (which includes such gems as, “Why in the hell would you do that,” “It’s your funeral,” and my patented look of equal parts of horror and disgust).

For me, an apology boils down to a formal admission of wrongdoing. I don’t know about you, but when it comes to my business partners, there’s about a zero chance I’m going to open myself up to that. Like dogs, bees, and toddlers, business partners can smell weakness, and who in the hell has time for that? I waste enough oxygen and brain cells justifying to business partners why we should do something when I’m in the right. That leaves me no time to grovel when I’m in the wrong.

The same goes for the word “sorry.” Because we lawyer types are word nerds, I’m in the camp that thinks there’s a subtle different between an apology and a sorry. Sorry implies an additional requirement of regret and remorse, and, frankly, I have even less time for that. Yes, I may have effed up, but I like to take the comparative negligence approach. If I’ve effed up, chances are that the business partner has effed up even more. Do you really think the sales rep is going to say he’s sorry for leaving out half the conversation he had with a vendor and making you look like a baboon’s ass in front of their counsel? I think not.

So I avoid apologies and sorry like the plague. Nor do I ever expect them from business partners because, again, that would imply some realization of wrongdoing or remorse. And there’s nothing quite like a half-assed apology that someone offers when they need something from you. “Kay, I’m so sorry I sat on this request for a month, but I really do need that merger agreement in four hours.” See? It’s like being punched in the intellect and the stomach at the same time.

But far worse than a half-assed apology, is a forced one.

We have this shiny, new sales SVP and like most of our sales SVP, this guy looks and sounds like he just got his learner’s permit. He’s been brought in to “shake things up.” Read: break the current system without any analysis as to what is working well. I give Thom about nine months before he’s out for failing to shake things up.

In the meantime, Thom has posted these larger-than-life, Technicolor canvas boards all over his team’s walls with such inspirational offerings as, “You miss 100% of the shots you don’t take,” and “Great things never come from idling in your comfort zone.” My personal favorite (the one over by the restroom) is “DREAM BIGGER.” I’m just saying that I probably wouldn’t have posted this one over by the men’s restroom. Snicker.

Well, I’m sorry to report that despite all these snazzy signs designed to inspire his team, I got into an epic showdown with one of Thom’s direct reports. I’m not going into the gory details, but let’s just say it involved changing a significant amount of language in a settlement agreement after it was approved by Legal. Let’s just say those changes were caught after the document was signed by the vendor but before we inked it, and a shitstorm ensued. The immediate result was me spending my Friday night and weekend renegotiating with a righteously (and rightfully) pissed vendor’s counsel. This resulted in me being righteously (and rightfully) pissed at Thom’s direct report for ruining my weekend because he decided that being a sneaky ass waffle was the way to go, rather than find an adult when the deal went south.

The following Monday morning, I was treated to a meeting in which the offending business partner was forced to apologize to me in front of Thom. Absent from the proceedings was an admission of wrongdoing or sense of remorse. Not only that, the ass waffle in question couldn’t make eye contact with me, and I got the distinct impression that it wasn’t remorse, but general pissiness, that was preventing him from looking me in the eyes. The lowlight (there were no highlights) was Thom wasting twenty minutes of my life explaining what it’s so important to take ownership of one’s mistakes and learn from them. I’m just going to say that I have lived through some awkward shit in my career (including having to coach a Midwestern-born VP that he couldn’t refer to his female employees as “gals” no matter how highly he regarded them), but this was up there.

Unsurprisingly, this didn’t fix anything. If anything, Thom’s direct report has been more of an ass waffle than before. He now starts every call and meeting with, “Kay, am I allowed to do the following, I wanted to check first, it’s not like I have ten years of experience in this field or anything …” in the snottiest tone imaginable. As if I’m the one who made this guy apologize or who tried to sneak one by his boss with a bogus settlement agreement. Nope, nope, nope. I’m just the poor sucker who spent her weekend fixing the mistake and her Monday morning listening to an SVP who clearly wanted to be one of those college basketball coaches making impassioned speeches to his team on the sidelines.

This experience, while mortifying, did give me a great outlet for my creativity. If you do happen to find yourself by the men’s restroom on the second floor of our building, you’ll find a new sign. It’s not as fancy as Thom’s airbrushed ones, but I think my, “SORRY IS NOT ENOUGH, SOMETIMES, YOU ACTUALLY HAVE TO CHANGE” sign gets the job done.

Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

In a recent column, I shared some IP-related takeaways from a major litigation finance-focused conference I attended recently, the LF Dealmakers Forum. A few weeks ago, the team behind that conference hosted the latest installment of the IP Dealmakers Forum, the 6th annual edition of that event. As always, it was a well-attended gathering of IP professionals representing law firms, IP owners, IP media, and litigation financiers. Like with LF Dealmakers, the organizers were gracious enough to allow me to attend in my capacity as author of this IP column. My attendance was limited to just two sessions, however, as I was laid low for days before the conference by a resilient bout of the flu. 

Truth be told, I was definitely not feeling my best during my short stint at the conference. But that did not stop me from enjoying two excellent panels on the closing day of the event. The first discussed how startups and established companies are looking to leverage their IP to drive growth. And the second addressed how corporations are approaching IP monetization in the ongoing challenging environment that today’s IP practitioners find themselves in. (I have no doubt that the other material presented at the conference was of a similar high caliber, just as I am sure that the one-to-one meetings that are an important part of the conference for attendees will lead to some actual deals.) In fact, these panels were the ones I circled when I first had a look at the conference agenda, so I was glad I was able to drag myself to catch those discussions. They did not disappoint.

For one, there were a wide range of perspectives offered by the panelists, with representatives from multinational corporations sharing the stage with domestic-based IP owners. Both panels featured frank discussion of the challenges the panelists and their companies face in an IP market defined by licensee skepticism and significant legal risk to IP assets, particularly in the United States, where both IPRs and Alice continue to confound patent owners looking to monetize their expensive (to obtain and maintain), wasting assets. As interesting as it was to hear about the challenges, however, it was more interesting to hear how the different companies represented are attempting to solve for them. As one can imagine, a number of different approaches were discussed.

We can start with the insights shared by the inimitable Raymond Millien, chief of IP for Volvo. He emphasized the importance of the IP department working closely with company engineers to identify promising internally developed technologies for outbound licensing, or to identify areas where inbound licensing could help improve the company’s product offerings. He also spoke about the importance of a company’s IP professionals helping to spread the message, both internally and externally, that the company’s IP is valuable. This marketing function may seem trivial in the grand scheme of things, but I for one agree that in a challenging IP environment it is important to maintain a company’s internal IP morale and competitive positioning as an innovator. Doing so helps give the company a head start when the IP environment becomes more favorable, while continuing to ensure the company’s inventors to keep inventing. His insights were echoed by others, particularly in terms of demonstrating how important it can be for startups to develop IP early on in their corporate lifecycle, in order to both attract outside investment and to give the company options if confronted by infringers or IP claims raised by others.

On the monetization front, it was interesting to hear certain themes echoed over and over. At the forefront was the message that companies interested in monetization are best served by having a concrete strategy in place for their efforts — one that takes into account how the company will handle the costs of their monetization efforts while remaining realistic about the expected returns and the company’s place in the IP ecosystem. At the same time, even representatives from non-traditional IP plaintiffs evinced a greater willingness to consider IP assertion, either directly or through divesting assets to non-practicing entities skilled in that endeavor. At least one panelist, Siemens’ Gerhard Tschiedel, spoke of an evolution within his company in its approach to patent divestment, including an increased willingness to divest assets generally — especially those generated by business units no longer offering products — as well as a willingness to at least explore use of litigation finance. Likewise, other corporate representatives indicated similar developments at their own companies, including at least one panelist who conceded that their company had come to understand that successful monetization will typically involve at least some level of investment by the IP owner, especially in the face of recalcitrant licensees. Interestingly, there was a consensus that while IPRs are a challenge for patent owners, they are also potential vehicles for unlocking patent value, considering that patents that survive IPR gain an immediate boost to their licensing prospects as a result.

Ultimately, IP conferences are only as good as the willingness of the presenters to speak frankly about how they and their organizations are dealing with the fluctuating market conditions in our field. At that level, IP Dealmakers did not disappoint, as both panels that I attended contained panelists that were more than willing to tell the truth about what is happening in the IP market. While it is sometimes more important as a conference attendee to confirm that the right questions are being asked, it is also helpful when fellow professionals at least attempt to share some of the answers to those questions. Yes, today’s IP dealmakers are dealing with a challenging market and significant obstacles to unlocking maximum value from IP. But it is heartening that there is a cadre of dealmakers still willing to deal. For those interested, seeking out those fellow dealmakers is more important than ever.

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.

To be honest, I do not care if Don McGahn ever actually testifies in front of Congress. The House Judiciary Committee screwed up the McGahn testimony a long time ago. As soon as the Mueller report was released, they should have compelled him to testify. As soon as he refused, they should have arrested him and sued him. Instead of playing hardball with Donald Trump’s reluctant accomplice, Democrats played footsie. They didn’t sue him until August. We’ve had to wait until November for his whackadoodle, blanket assertion of executive privilege to be rejected by a court. The government will now appeal to the Supreme Court. Even if the Supreme Court eventually rules against him, McGahn’s actually testimony will basically be a series of questions McGahn refuses to answer, citing various privileges. Moreover, McGahn is a key witness to Trump’s obstruction of justice, a charge that Democrats have all but abandoned in their new search to convince Trump Republicans to finally do the right thing and hold the criminal president accountable.

We must continue to pursue McGahn on general principles, but his part in this drama is no longer relevant.

Former National Security Adviser John Bolton still has a part to play. The McGahn ruling gives all the legal cover Bolton needs to testify in the impeachment inquiry about his knowledge of the bribery scheme implemented by President Trump and his personal lawyer, Rudolph Giuliani. Unfortunately, Bolton still appears to be too chickenshit to do the right thing. From the New York Times:

Charles J. Cooper, a lawyer who represents Mr. Bolton, said that a court decision on Monday ordering another former White House official to appear before Congress under subpoena did not apply to Mr. Bolton because of the nature of his job. Mr. Cooper said Mr. Bolton would therefore wait for another judge to rule in a separate case that could take weeks more to litigate…

“Any passing references in the McGahn decision to presidential communications concerning national security matters are not authoritative on the validity of testimonial immunity for close White House advisers” whose “responsibilities are focused exclusively on providing information and advice to the president on national security,” Mr. Cooper said.

John Bolton is most well-known for his aggressive foreign policy positions. There’s nary a problem on the global stage that Bolton doesn’t think can be bombed or shot out of existence. But Bolton’s reticence to provide Congressional testimony — a timidity not shared by his deputy Fiona Hill or former ambassador Marie Yovanovitch or ambassador Bill Taylor or Lt. Col. Alexander Vindman or numerous others who willingly told the truth to the American people — exposes Bolton as a cheap schoolyard bully. He’s happy to fight when he enjoys an advantage of institutional strength over his adversary. But when the odds are even? When the outcome is unclear? No, Bolton shrinks from that challenge to hide under the apron of his lawyer.

To be clear, the argument from Bolton and lawyer Charles Cooper is a bad one. They’re contemplating the same kind of blanket immunity from testimony that was just rejected in the McGahn case. If anything, as not only a top adviser but a lawyer, McGahn has a stronger legal argument to avoid testimony all together. If McGahn can be expected to at least sit there and be asked questions, whether or not he’ll answer them, so must Bolton. Nobody is going to ask Bolton about national security secrets. Trump already declassified his solicitation of bribes; Bolton will just be asked to confirm the obvious.

But Bolton doesn’t want to do his duty — he wants to be a diva. He wants to drag this out. He wants to sell his book. He wants to avoid being seen by fellow Republicans as the man who sunk Trump’s presidency. John Bolton doesn’t want cover, he wants to run away like a coward.

Ruling Will Not Lead Bolton to Testify Soon, Lawyer Says [New York Times]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

While we all understandably fixate on salary and bonuses, benefits can be just as critical to an attorney’s job satisfaction. To the extent we talk about benefits at all, we usually talk about parental leave expansions, but there’s a much wider array of offerings firms could be putting on the table for associates — benefits that will impact attorneys with far more regularity than parental leave. Unless you’re a Duggar or something.

Goodwin just announced its You@Goodwin program with a number of new benefits for employees in its U.S. offices. Given that we’ve not heard about bonuses from Goodwin yet, most associates probably saw the email to all and felt a little teased when it was just a benefits announcement, but keep your heads up because there’s some good stuff in here:

Expanded paid parental leave policy. All lawyers will be eligible to take up to 18 weeks and all GO! Team members will be eligible to take at least 12 weeks of paid child bonding leave. In addition, all birth mothers will be eligible to take at least six additional weeks of disability leave.

Of course parental leave is still getting top billing. At 18 weeks, the policy falls a little shy of some others, but it’s certainly following the trend toward expanded leave. The policy does reflect the industry-standard gap between attorneys and staff, which never makes sense because “having a baby” seems to have very little to do with post-graduate degrees. Even vacation tiers make sense — attorneys are under more stress day-to-day than staff and may need more vacation — but there isn’t much reason to tier parental leave. Maybe to reflect that they’ll be home more often during the first year? I guess that makes some sense, but is it six weeks’ worth?

The firm is also offering 12 weeks of leave to all employees for close family members with serious health conditions.

Modified vacation policy. Lawyers will move to flexible vacation, while full-time non-exempt GO! Team members and paralegals with five or more years of service will be eligible to accrue up to 20 days per year. There will  be no specified limit to the total number of vacation days in a calendar year for lawyers.

Unlimited vacation, y’all. Realistically though, attorneys are rarely going to take all 20 days offered to staff let alone something on top of that. But it does open the door to a mid-level ahead on hours to book the sort of once in a lifetime two-month trek that attorneys can only afford once they’re working too hard to actually take. If you find yourself in this boat, why not try to get to South America or Africa to close out the year?

For its part, the firm is serious about pushing associates to at least take some sustained vacation:

First, we will encourage all of you to take a vacation of two consecutive weeks per year, in addition to other vacation time you take during the course of the year. Taking the time to relax and recharge is essential –  especially in our fast-paced industry. We firmly believe that well-being and balance are fundamental to our ability to do our best work for clients.

Even if work schedules find a way to mess that up, just making the statement represents a critical shift in thinking about mental health that too few firms would be willing to put out there.

Substance abuse and depression assistance. As an early signatory to the American Bar Association’s pledge to advance well-being in the legal profession, Goodwin will continue to offer training on signs of substance abuse and depression, and how to get help.

One of the more welcome trends in Biglaw is the institutional commitment to the obstacles the profession puts on mental well-being. And while we’re on record as disagreeing with Goodwin’s decision to go teetotaler in an effort to curb both substance abuse and reduce the risk of sexual harassment, we’ve also lauded the commitment to getting ahead of the problem. The new program offers services to the entire firm and household members including on-site behavioral health counselors.

Speaking of health, the firm announced an expansion in voluntary health plan add-ons and expanded elder care and special needs services.

Perhaps most importantly for young associates, the firm expanded its student loan refinancing options.

Congratulations to Goodwin employees on their new benefits, and a reminder to attorneys everywhere to keep us abreast of any new benefits.

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.

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. … This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. …

[A]s far as the duty to appear is concerned, this Court holds that Executive branch officials are not absolutely immune from compulsory congressional process—no matter how many times the Executive branch has asserted as much over the years—even if the President expressly directs such officials’ non-compliance.

This result is unavoidable as a matter of basic constitutional law…. Today, this Court adds that this conclusion is inescapable precisely because compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law.

— Judge Kentanji Brown Jackson (D.D.C.), ruling in a sharp rebuke to the Trump administration’s repeated assertions that both current and former presidential aides — like former White House counsel Don McGahn, whom you may recall decided to resign after President Trump allegedly asked him to “do crazy shit” — have “absolute immunity” from compelled testimony as part of the House’s impeachment inquiry. McGahn’s lawyer said his client would comply with the ruling unless it is stayed pending appeal. The Justice Department has vowed to appeal.

(Flip to the next page to read the ruling in full.)

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.

* A federal judge has ordered former White House Counsel Don McGahn to testify in front of the House impeachment inquiry, stating that “Presidents are not kings.” [CNN]

* A North Carolina woman has been charged with pretending to be a lawyer in court. She probably told the judge her name was Jerry Callo (can’t resit a good My Cousin Vinny reference). [Charlotte Observer]

* It looks like there won’t be any more episodes of “Serial” — the Supreme Court announced yesterday that the high court would not be hearing the case of Adnan Syed, the subject of the viral podcast. [Vox]

* Justice Ruth Bader Ginsburg was back at the Supreme Court yesterday after a brief stay at the hospital over the weekend. [Reuters]

* More than a thousand Americans have signed onto a lawsuit against a number of companies for allegedly supporting terrorist groups. [Full Measure]

* Devin Nunes has threatened to sue CNN and the Daily Beast over news stories about him. Mr. Nunes may want to brush up on his First Amendment law (or just watch John Oliver). [Vox]

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.

By the end of this month, as more and more experts weigh in on the deep trauma suffered by captured elephants, a treaty governing international animal trade will halt the export of live elephants from Zimbabwe and other countries in Southern Africa.

Severe shortages of foreign currency, fuel and electricity have sent inflation soaring to its highest since 2008, and dashed hopes the economy might recover under President Emmerson Mnangagwa, who took over from Robert Mugabe in 2017.

“The decision to exit Zimbabwe was based on the continued adverse macroeconomic conditions affecting trading and the weakening currency,” Pepkor’s statement said.

Its Zimbabwe business made a loss of 70 million rand ($4.8 million), including the full impairment of the disposal of the group’s assets, it added.

Overall, Pepkor, 71% owned by scandal-hit retailer Steinhoff International, said its profits grew by 14.5% in the year to Sept. 30.

Headline earnings per share, the main profit measure in South Africa that strips out certain one-off items, stood at 96.8 cents, verses 84.5 cents a year earlier. Revenues from continuing operations grew by 9% to 69.6 billion rand.

Pepkor flagged earlier in November that it would need to take a 1.2 billion rand charge related to its building materials unit that has struggled in a tough market.

Leon Lorens, Pepkor’s CEO, said the company was satisfied with its performance given the difficult retail environment in South Africa.

Consumer finances have been constrained amid stagnant growth, rising living costs and unemployment that stands at nearly 30%.

“We see many opportunities for market share expansion,” Lorens said, adding the company was also focused on cutting costs. ($1 = 14.7075 rand) (Reporting by Emma Rumney; editing by Richard Pullin)

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