Category: News Feeds

George Guvamatanga, secretary of Zimbabwe’s Ministry of Finance and Economic Development, said the Zimbabwean government met a delegation from China Eximbank in October to review current and future projects.

Thousands gather in Zimbabwe for Mugabe’s funeral

Cramming for the CCPA

Cramming for the CCPA

Axiom & Above the Law

“Are pilots running airlines?” asks Lourdes Slater, the CEO of Karta Legal, a woman-owned consultancy firm with a focus on legal process improvement. “Lawyers are skilled at their art but many not possess the business know-how or time transform their practices,” she says. 

Lourdes’s mission is simple — to innovate the practice of law following this sequence: People, process, and then technology. She uses design thinking and business process improvement tools such as Lean Six Sigma and Agile Legal Project Management to get you there. So, how do you teach the proverbial old dog new tricks? Lourdes shared three insights.

Why v. Way: Identify Your Challenges

“The first step is to identify the nature of the barrier to innovation,” Lourdes says. She continues, “We collaborate with our clients to determine if the barrier is a lack of will — not being sold on the ‘why’ — or not knowing the ‘way’ — lacking the know-how to get there.” According to Lourdes, those are different challenges that should be addressed differently.

Shift From Warrior to Business Mentality

If motivation is intertwined with reward value and reward value is influenced by past experience, we can easily see why lawyers need a reboot. “Lawyers traditionally have been rewarded for perfection. The ‘leave no stone unturned’ approach is taught early and forcefully. Mistakes are frowned upon, a missed legal authority in a brief is not easily forgiven, and the consequences can be serious.” Lourdes observes. 

She explains, “We are never taught efficiency, but the opposite. Early on with the Socratic method in law school, what we are taught are the virtues of resiliency and over preparation. Generally speaking, lawyers don’t see themselves as business people but as warriors.” Lourdes believes that lawyers must shift their mindset from warriors to business professionals, who get rewarded on efficiency and value creation.

A Third-Party Facilitator May Be a Perfect Reality Check

According to Lourdes, “For innovation to take hold in your organization, we need to make the business case loud and clear and present the innovative behavior as rewarding.” She explains, “There are many ways we can accomplish this depending on the type of innovation and organization implementing it. In every instance, however, you have to start at the top of the chain. Without ‘the will’ of the owners and stakeholders, your initiative will fail.” 

She recommends, “If you are neither the owner or the stakeholder, but are tasked with change management at your organization, because the owner/stakeholder has heard this is the ‘thing to do,’ not because they are truly ‘willing’ to change, seek outside help to facilitate the engagement and commitment of the key players, owners or stakeholders of your organization.” According to Lourdes, a facilitator with the experience and ability to communicate the reason for the “will” and the path for the “way” to your owners and stakeholders may be the key to success.

Pilots, in fact, do not run airlines. Likewise, in the era of the Digital Revolution, lawyers can’t afford to run firms and departments in the same way we have been doing in the past. We need to bring strong business and operational skills into the mix. With that in mind, Lourdes’s mission is to work with organizations to facilitate innovation. Finding the obstacles, whether internal or external; changing the mindset, from warrior to business person; and assisting you to get the buy-in you need to get you there. 

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

When it comes to trademarks, descriptiveness is not good thing.  It makes sense — when a term or phrase describes some ingredient, quality, or characteristic of the goods or services in question, it does not lend itself to being a source identifier.  When terms or phrases are so descriptive that they cannot function as a source identifier, then such terms or phrases are deemed “generic.”  For domain names that operate as trademarks, this begs the question: Can the addition of a generic top-level domain extension (such as .COM) to an otherwise generic term create a protectable trademark?  This seems to beg the question presented to SCOTUS in United States Patent and Trademark Office v. Booking.com B.V.

The facts here are quite simple. Amsterdam-based Booking.com (a division of Booking Holdings, Inc.) is a travel aggregator website operating as a metasearch engine for hotel reservations.  The website began using the name back in 2006 and began its journey for federal trademark protection in 2011.  To make a long story short, the United States Patent and Trademark Office (USPTO) rejected the applications claiming that the term “booking.com” was generic for hotel booking services.  For example, the USPTO did not mince words in its final Office Action refusing the trademark application Ser. No. 79122365, claiming that the addition of the .COM top-level domain to “the generic wording adds no source-identifying significance but retains only its significance as a TLD,” thereby failing to serve as a source identifier.  The refusal was affirmed on appeal to the Trademark Trial and Appeal Board, and the matter proceeded to the United States District Court for the Eastern District of Virginia.

This is where things get bit interesting — the district court sided with the company.  Although the district court recognized that “the term ‘booking’ is generic” for hotel reservation services, the district court held that top-level domains (such as “.COM”) “are generally source identifying and that a mark composed of a generic [second-level domain] and a [top-level domain] is a descriptive mark eligible for protection upon a showing of acquired distinctiveness.” Yep — the district court basically relied upon favorable survey evidence to conclude that the trademark had acquired secondary meaning.  The Fourth Circuit Court of Appeals affirmed the finding, and now SCOTUS has granted certiorari to hear the case.

This case is interesting because it goes to the heart of whether generic terms can shed their “genericness” by the addition of a top-level domain and acquire secondary meaning over time.  We are not talking about merely descriptive terms here that describe the nature, quality, ingredient, or other characteristic of the term for the class of goods or services that are not inherently distinctive but can, in some cases, acquire secondary meaning in the marketplace. Unlike such merely descriptive terms, generic terms go a step farther.  Generic terms are common names that an ordinary consumer understands primarily as describing the family (or “genus”) of the trademark applicant’s goods and/or services.  By definition, such terms cannot indicate the source of goods and/or services, and cannot qualify for federal trademark registration.  This makes sense — the terms “corn flakes” or “restaurant” describe a general type of goods or service, not whose goods or services from which they emanate.

So what gives here?  As evident from the petition for certiorari to SCOTUS, it seems that the Fourth Circuit “concluded that BOOKING.COM, taken as a whole, is not generic because the relevant public would primarily understand the term to indicate [Booking.com’s] brand… [relying] in significant part on [the] Teflon survey, rejecting the USPTO’s argument that such survey evidence is irrelevant to the question whether BOOKING.COM is generic.”

Although the appeals court acknowledged that a term previously held to be generic cannot have that designation changed by subsequent consumer recognition of the term, the court nevertheless held that such a rule only applies where “a prior court” held the term to be generic or was “previously commonly used” by the public. In essence, a term that has been held generic or is otherwise commonly used by the public will not qualify for registration, but somehow miraculously does not qualify as generic (and can acquire secondary meaning) if it does not meet those criteria?  If you are scratching your head, rest assured, I am too.

At first glance, the district court and Fourth Circuit seem to have been persuaded by survey evidence that weighed in favor of the company.  I don’t know about you, but I don’t think that survey evidence can render a generic term like “restaurant” registrable.  Perhaps that is the point — the term “booking” may be a term well-known in the hospitality industry for placing a reservation, but maybe the term is not really generic.  For example, the term “booking” is not solely relevant to the hospitality industry; it arguably operates as a term of art in law enforcement for placing an arrestee into the criminal justice system.  I guess reasonable minds will differ. Let’s just hope that SCOTUS provides some much-needed clarification in the process.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

This year, bonus season came early, what with Milbank jumping the gun and announcing bonuses very early — November 7th, to be precise. But with bonus levels the same as last year, lots of folks were actually disappointed about the static amounts and thought Milbank had work to do to live up to its “Thrillbank” moniker.

So with the first bonus volley welcomed, but a little lackluster, Biglaw waited for perennial compensation leader, Cravath, to make their move. If they up the ante, then that becomes the new industry standard for those firms wanting to prove their position at the top of the Biglaw heap. If they hold the line, well, with fears of a recession looming, who could blame them? But either course would shape the tone of the rest of the bonus season.

Well, the wait is over. This afternoon, they announced, and, well, here are the numbers:

Class of 2019 – $15,000 (pro-rated)
Class of 2018 – $15,000
Class of 2017 – $25,000
Class of 2016 – $50,000
Class of 2015 – $65,000
Class of 2014 – $80,000
Class of 2013 – $90,000
Class of 2012 – $100,000

Yup, it’s the same as Milbank (and last year’s bonuses). So, for the time being at least, Cravath is letting Milbank set the standard. It seems likely that now that these two compensation powerhouses have weighed in, the rest of the industry will fall in line. (Read the full memo on the next page.)

Early reactions from ATL tipsters are similar to the murmurings from Milbank’s announcement:

Cravath announces bonuses and they’re the same. Cravath associates disappointed given many recent successes for the firm and the fact that 2018 compensation was higher with summer bonus.

But the economy is in a precarious position, and this move is right on-brand for a traditionally risk adverse industry (and still generous despite them being the same as last year’s bonuses).

What do you think about Cravath’s 2019 bonuses? Sound off by text us (646-820-8477) or email, funny or otherwise interesting thoughts could make it into an update or follow up to this story. Speaking of contacting Above the Law, remember, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for all salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for your help!

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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).

I am sure that some of you (perhaps all of you) wondered whether Elie Mystal had finally spiked my column for good. No such luck, kiddos. I am presently recovering from extensive back surgery (not my idea of a fun time). I tried to keep up with what was happening, but with the anesthesia brain (yes, there is definitely such a thing, at least for me), the drugs (including but not limited to prescribed opioids), and the constant interruptions while confined to a hospital bed (a place populated by efficient and pleasant vampires), it was not just my eyes that were glazed over. As a wise man once said, “You don’t get any rest in a hospital.” So true.

I’ve provided unsolicited advice on any number of topics over the past few years, and so, here’s some more. The subject is one that we don’t want to think about, but shit happens, as it did to me.

What is your contingency plan if you become ill and are unable to work? What are you going to do? How will you keep your practice going? Who will make appearances for you?  Who will get the work done? How will you pay your bills?

These are not idle questions. They are questions that can and do bring you up short if you have never given them any thought, and I doubt that many of us have, especially the younger among us, who think and act as if they are invincible. They aren’t; we aren’t. Life can turn on a dime.

Not only do we have to have answers to these questions, we also need to be mindful that we need to make sure that our clients don’t think we’ve abandoned them if we are not responsive to their inquiries. Just pile on a disciplinary complaint to add to your misery at the same time you’re trying to recover so that you can return to work and respond to client inquiries, if someone hasn’t already done so.

How many complaints does a state bar receive about a lawyer’s lack of communication?  And how many of those could be prompted by a lawyer’s disability, whether temporary or permanent?

What I am suggesting is a different kind of succession planning, one not for a permanent transition, but for a temporary one, one that covers the time when you are unable to work. You can think — and many do — that it won’t happen to you, but don’t be overconfident. You are not immune. Slipping on a banana peel, a variation of what I did, is easier than you think and leaves you vulnerable, something that we all hate to be.

We are reluctant to let colleagues know that we have workload issues; we are just as reluctant to ask for help on a temporary basis. We fear losing clients, losing work, losing income, but sometimes, we have no choice. For those in solo practice or small firms, benefits do not necessarily include short-term and/or long-term disability insurance.

There is no one right way to handle this situation. Should you continue to work while temporarily disabled? Are you on medication? Are you competent to practice while on drugs?  You tell me.

Remember that a state bar’s disciplinary body doesn’t give us a “get out of jail free” card if we screw up while using the “temporarily disabled” excuse.

So, here’s my unsolicited advice (isn’t it always?):

1. Have a contingency plan in writing (don’t rely on a drug-addled haze to communicate your plan).
2. Give copies of the plan to several colleagues you trust. Hopefully they have some inkling if not more of your practice areas. Don’t ask a transactional lawyer to handle your litigation calendar — and the reverse is equally true.  Some subject matter expertise is always a help.
3. Even if it pains you financially and personally, don’t go back to work until drugs are out of your system, and whatever anesthesia brain you may have had is gone. As a dinosaur, the effects of anesthesia can linger for some time and the cognitive effects are not to be dismissed.
4. Have a “rainy day” fund available. It may not be much, but every little bit helps for those copays and deductibles.

As for me, I get sprung out of my back brace in less than five weeks, but I am not taking any mediations right now. I think that to do so would be a disservice to the attorneys and clients who hire me to resolve cases. I’m not patting myself on the back for what I have decided. It’s a desire to limit reputational risk, and what I think is the right thing for me to do. It may not be the same for you. Anyway, patting myself on the back is not something that I can easily do these days.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Another day, another court loss for Donald Trump in his ongoing attempts to shield his tax returns from lawful subpoenas.

In the gallery of epic benchslaps Trump has received from federal courts (so far my favorite is still the 75-page smackdown from U.S. District Judge Victor Marrero), the beating administered to Trump today is pretty tame. U.S. District Court Judge Carl Nichols kicked one of Trump’s arguments about the laws passed in New York regarding tax returns from his court in D.C. It was purely a jurisdictional ruling. Here’s the conclusion from the ruling:

Based on the current allegations, Mr. Trump has not met his burden of establishing personal jurisdiction over either of the New York Defendants. The Court therefore need not reach the question of proper venue. Accordingly, the New York Defendants’ Motion to Dismiss is GRANTED, and Mr. Trump’s Amended Complaint is DISMISSED without prejudice as to them. Mr. Trump may press his claims against the New York Defendants in this Court should future events support the exercise of personal jurisdiction over them, or he may opt to pursue those claims in an appropriate forum.

Trump’s legal arguments are almost always wrong and usually offensively bad. This one is no different. There was literally no reason for him to bring this suit in D.C., and Judge Nichols said so.

The only interesting thing here is that Nichols falsified records and switched the samples to bring you Provasic. Just kidding, that was Dr. Charles Nichols, not Judge Carl Nichols. But Judge Nichols is notable for being a judge appointed by Trump. Most of Trump’s federal losses are handed to him by judges who were appointed by other presidents. Nichols was confirmed this past May. Having one of Trump’s crazy and stupid arguments kicked by a fresh-faced Trump judge is not something we’ve seen before.

That’s probably also why Nichols’s decision was so openly begging Trump’s lawyers to refile in New York. But, I don’t think it will do much good in New York as the Second Circuit has already weighed in on the dumbass arguments Trump is making up there.

We’re all just waiting for the administration to ask different Trump judges — Neil Gorsuch and alleged attempted rapist Brett Kavanaugh — to bail him out.

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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.

HBO’s Last Week Tonight and its host, John Oliver, have been in a years-long litigation battle with coal magnate, Bob Murray. Earlier this year, Murray finally removed his lawsuit, which allowed Oliver to go full anti-SLAPP on his show:

It’s a pretty epic response. Oliver explains why we need federal anti-SLAPP laws, while also torturing Murray with jokes knowingly crafted to comport with all defamation standards. Lawyers will note how many times Oliver says “I would argue” in the segment, a turn of phrase that is not natural to Oliver’s show yet is dutifully repeated throughout. It’s funny, but it’s also an important piece about how people like Murray use frivolous lawsuits to chill free speech and journalism.

I didn’t really laugh, though. Without the protection of federal anti-SLAPP legislation, or HBO’s bankroll, I live in near constant fear of people like Bob Murray. It’s cathartic to make fun of them, but ultimately they’re winning. The law has not kept up with the strategy of quelling journalism through lawsuits. Oliver can say, “Come at me, bro.” I can’t risk that heat.

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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.

We’ve heard the story so many times. Many potential clients ask questions and, seemingly, are looking for free legal advice. But not all of them. In fact, most of them are genuinely seeking legal counsel. But how do you know who is ready to hire?  Well, the first step is actually responding to them.

Remember, for most people, legal matters can feel overwhelming. And technology is making it increasingly simple to research law firms online. So the initial interaction can be quite impersonal. The trick is to bridge the electronic gap and try to build rapport with these potential clients. In this infographic, you will get some tips on how to do just that. Whether it’s now or later, give these potential clients a reason to engage your firm. And, even better, give you a positive online review and refer your firm to others, too. Technology is a method to connect people, but not a real connection.

(Juliana Lamar, a recent graduate of Belmont University College of Law, interned with Dinkins during her first year of law school, and was mentored by him as a 2L. Sarah Martin, one of Lamar’s law school classmates, filmed the swearing-in ceremony, and noted that not only did her friend gave birth to her son during their third year, but that she was a “badass” who was “back at school within a week of an emergency c-section before she was even allowed to drive or climb stairs.” Congratulations!)

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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.