Category: News Feeds

I love the Times. I know that journalism is hard, and deadlines are short. So I when I asked the Times to correct these two false and defamatory statements, I fully expected they would, and I fully expected that would be the end of it. And I so I was astonished when they not only refused to fix the mistake, but doubled down on the absurdity of their justifications. For example: Because I was supporting Joi [Ito, former director of the MIT Media Lab], I was therefore supporting what Joi did. Wow. So if the Times criticizes the assassination of Suleimani does that mean the Times supports what Suleimani did? I was criticizing the scapegoating of Joi. I was not supporting what Joi did.

— Professor Larry Lessig on suing the New York Times for claiming he wrote an essay justifying fundraisers taking money from Jeffrey Epstein. The essay at issue wasn’t exactly clear but it’s impossible to say he was giving a moral pass to fundraising off of Epstein. Still, it’s not really “clickbait” to say Lessig’s article endeavored to suggest how MIT could have best handled its bid to separate a pedophile from his money — frankly, making Epstein poorer without giving him public credit for it sounds like a good thing!

Check out the complaint on the next page…

Professor Dan Markel was murdered in his driveway in 2014, and while the men who pulled the trigger are in jail today, the “middle woman” who allegedly set the hitmen on a collision course with Markel awaits retrial and the family that prosecutors claim paid for the hit are not only free but enjoy unfettered access to Markel’s kids.

After Dan’s murder, sole custody of his children fell to his ex-wife, Wendi Adelson, even though prosecutors continue to argue that Adelson’s brother arranged the killing in a bid to… get Wendi sole custody of the kids. Adelson then changed their last name and cut off their contact with Markel’s family.

Florida State Senator Jeff Brandes just introduced legislation to remedy at least the last part of the ongoing horror. The Grandparent Visitation Rights bill would give grandparents access to petition the courts for visitation rights, something they mostly lack at present as long as the children have a living parent. The one exception comes from a 2015 law that gave grandparents the right to petition for visitation if the remaining living parent is convicted of a felony, which creates a gap in a legal morass like the Markel killing where prosecutors are holding out the Adelsons as unindicted coconspirators at this point.

“This is, at its core, an access to courts issue. The ability for grandparents to petition courts is no guarantee of visitation,” Brandes stressed. “Rather, courts must remain strongly deferential to the living parent’s authority and must take into consideration the relevant factors prior to determining what is or isn’t appropriate.”

A press release for the announcement of the bill notes that advocates see it as a means “to create a disincentive for other families who may see murder as a way to gain total control of children” which is a tragically sad sentence to suggest that we need to set up additional procedural disincentives to get people to abide by the whole “don’t murder people” rule. You’d think that one would hold up without additional window dressing, right?

On the other hand, the threshold for a grandparent’s successful showing under this new law is certainly lower than the constitutional requirements for a criminal conviction. So this might actually have some teeth for anyone who thinks they’ve worked out the perfect crime but also don’t want to ever see their mother-in-law again.

It’s the “wrongful death” tort for people whose only real wish is seeing their grandkids again. While that may not sound as powerful a disincentive to murder as life in prison, for some people the probability of a family law defeat might functionally outweigh the magnitude of a criminal sentence.

Earlier: The Dan Markel Case: Answers To Your FAQs
Trial Begins In Murder-For-Hire Plot That Killed Law School Professor
The Dan Markel Case: Trial Approaches

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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.

BARR: “This concept of imminence is something of a red herring. [When] there is a campaign that involves repeated attacks on American targets, I don’t think there’s a requirement, frankly, for, you know, knowing the exact time and place of the next attack.”

— Ryan Struyk (@ryanstruyk) January 13, 2020

The impact on human daily life from a transition to the virtually unlimited resource reality of space cannot be overstated. However, when it comes to the law, a minimalist, dare I say libertarian, approach appears as the only applicable system.

In the words of NASA, “2020 promises to be a big year for space exploration.” Yet, as Rand Simberg points out in Reason magazine, it is actually private American investment that is currently moving space exploration to “a pace unseen since the 1960s.” According to Simberg, due to this increase in private investment “We are now on the verge of getting affordable private access to orbit for large masses of payload and people.” The impact of that type of affordable travel into space might sound sensational to some, but in reality the benefits that space can offer are far greater than any benefit currently attributed to any major policy proposal being discussed at the national level. The sheer amount of resources available within our current reach/capabilities simply speaks for itself. However, although those new realities will, as Simberg says, “bring to the fore a lot of ideological issues that up to now were just theoretical,” I believe it will also eliminate many economic and legal distinctions we currently utilize today.

For example, the sheer number of resources we can already obtain in space means that in the rapidly near future, the distinction between a nonpublic good or a public good will be rendered meaningless. In other words, because the resources available within our solar system exist in such quantities, all goods will become nonrivalrous in their consumption and nonexcludable in their distribution. This would mean government engagement in the public provision of a nonpublic good, even at the trivial level, or what Kevin Williamson defines as socialism, is rendered meaningless or impossible. In fact, in space, I fail to see how any government could even try to legally compel collectivism in the way Simberg fears.

Similar to many economic distinctions, however, it appears that many laws, both the good and the bad, will also be rendered meaningless as soon as we begin to utilize the resources within our solar system. For example, if every human being is given access to the resources that allows them to replicate anything anyone else has, or replace anything “taken” from them instantly, what would be the point of theft laws? If you had virtually infinite space in which you can build what we would now call luxurious livable quarters, all without exploiting human labor or fragile Earth ecosystems when you do it, what sense would most property, employment, or commercial law make? Again, this is not a pipe dream, no matter how much our population grows for the next several millennia, the amount of resources within our solar system can sustain such an existence for every human being.

Rather than panicking about the future, we should try embracing it, or at least meaningfully preparing for it. Currently, the Outer Space Treaty, or as some call it “the Magna Carta of Space,” is silent on the issue of whether private individuals or corporate entities can own territory in space. Regardless of whether governments allow it, however, private citizens are currently obtaining the ability to travel there, and if human history is any indicator, private homesteading will follow, flag or no flag. We Americans know this is how a Wild West starts, where most regulation becomes the impractical pipe dream. But again, this would be a Wild West where the exploitation of human labor and fragile Earth ecosystem makes no economic sense, where every single human can be granted access to resources that even the wealthiest among us now would envy, and where innovation and imagination become the only things we would recognize as currency. Only a libertarian-type system, that guarantees basic individual rights to life, liberty, and the pursuit of happiness could be valued and therefore human fidelity to a set of laws made possible, in such an existence.

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

Effective IP litigators stay abreast of trends in their area of practice. They can then make sure that they are advising clients based on current, rather than stale, information. Thankfully, there is no lack of easily accessible statistics for IP litigators to digest these days, whether via the IP media or from IP-focused organizations, such as law firms or IP service providers. At the same time, we know that statistics can be manipulated, requiring us to try and assign some color and context to any data we confront. Especially at this time of year, when it seems like every IP-centric information source is either releasing a 2019 year-in-review, or a host of predictions for 2020. With the caution of trying to interpret statistics as thoughtfully as possible in mind, let’s take a look at one of the more interesting 2019 year-in-review reports, Unified Patents’ 2019 Patent Dispute Report.

With thanks to Shawn Ambwani, one of Unified’s co-founders and current COO and SVP of Legal, who sent me a copy by email, it is readily apparent to any reader of the report that Unified has done yeoman’s work in trying to tell the story of NPE and IPR activity in 2019. Which is not a surprise, given Unified’s mission of helping its members fend off NPE patent assertions through Unified’s identification and targeting of NPE patents for IPR filings. As the report notes, Unified itself remains one of the top five IPR filers by numbers of petitions, coming in third with 43 IPR petitions. In contrast, the next most recognizable third-party NPE-fighting entity, RPX, only filed two petitions — albeit as a direct result of the adverse AIT PTAB decision that RPX received on the critical issue of real-party-in-interest and IPR-filing time bars. Since Unified has yet to lose on that issue, it makes sense that they are drawing a contrast with their competition on that point. Put another way, one of Unified’s claims to fame is its IPR filings, and it clearly advertises its prolific nature in that regard as a competitive advantage.

Our first takeaway, therefore, is a straightforward one. Just as NPEs (or competitors, for that matter) have to consider elevated IPR risk when they target one of the top IPR filers like Apple, Google, Microsoft et al., so too should patent owners consider whether they can expect Unified as an IPR filer for any enforcement campaign they hope to bring. Common sense dictates that the risk of a Unified IPR is increased if the asserted patent falls within one of Unified’s advertised activity “zones,” or if the campaign targets a known Unified member. Likewise, patents asserted in what Unified deems the “High-Tech” (High-Tech equaling technologies relating to software, hardware, and networking) space are likely to at least draw Unified’s attention and review. In short, considering the volume and scope of Unified’s IPR practice, no informed patent enforcer should find themselves surprised if one of their patents is the subject of a Unified IPR petition.

Second, it remains interesting to see that the overall number of IPR filings declined to its lowest point ever since the AIA’s institution (23% lower than in 2018 according to the Unified report), even though the rate of IPR success for petitioners remained constant at over 60%. On the one hand, the PTAB “remains the most popular venue for patent disputes overall” according to Unified’s report, confirming the continued importance and impact of IPR practice on modern patent litigation. On the other hand, it appears that as time goes by, more potential IPR filers are either determining that actually committing to the cost and 18-month potential time period of an IPR trial is unnecessary. Which suggests that the very effectiveness of IPR filings for defendants makes the threat of them a more potent deterrent for patent plaintiffs — and is probably leading to more early settlements in patent cases. At the same time, because IPR filing continues as the first-line defense for defendants who are unable to force early settlement on favorable terms, the PTAB remains a powerful force in today’s patent litigation ecosystem.

Lastly, it says a lot that NPE activity increased, even as the overall number of patent case filings was down in 2019. In short, NPEs are gaining market share, with “NPE activity in the High-Tech sector alone” resulting in “more new patent infringement cases than all non-NPE patent litigation combined.” That should not be a surprise, considering the extreme challenges patent owners of all stripes face in today’s enforcement environment. It makes sense that patent owners will increasingly turn to the “experts” in patent enforcement in order to try and monetize their patents, rather than take the risk of embarking on an enforcement campaign themselves. Add in that many sophisticated NPEs also do a lot of work in terms of convincing patent owners to part with enforceable patents — including some that those very same patent owners would never have otherwise trying to enforce — and it is clear that NPEs themselves are active participants in increasing their litigation market share. This is particularly acute in the High-Tech space, where “90% of all High-Tech litigation in 2019 is attributed to NPE assertions against High Tech companies.”

Ultimately, love them or hate them, companies like Unified perform a service for the entire IP industry when they publish reports of this type. I thank Shawn again for bringing it to my attention, while extending my sincere hope that 2020 is a year that brings balance to the patent industry, where those with good patents are rewarded — while the work of culling out bad patents via the PTAB and other legal mechanisms continues apace. As someone with the privilege to represent both patent owners and defendants, all I can hope is that by absorbing 2019’s lessons we will all be in a better position to improve the state of patent litigation in 2020 and beyond.

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.

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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.

* The Attorney General has asked Apple to unlock iPhones belonging to a Pensacola, Florida navy base shooter. [Engadget]

* A wrongful death lawsuit has been filed relating to a 2019 boat fire that resulted in 34 deaths. [ABC News]

* Former UN Ambassador Samantha Power had a unique path to Harvard Law School. [Coverage Opinion]

* The Florida Bar is seeking to disbar a lawyer who cleared out his attorney trust accounts and left his clients in the lurch. [ABC News]

* The Supreme Court has declined to review a “free the nipple” case concerning women who were arrested for showing their nipples in public even though men may freely do so. The record in this case must be very interesting. [The Hill]

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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.

Chiwenga made the admission while contesting an application by his estranged wife, Marry Mubaiwa, to be granted access to several properties after the former army general sent soldiers to block access to properties the couple own, denying her access to their three children and personal items including clothes.

The 38-year-old former model said in a court filing last week that Chiwenga had turned her into a destitute after she was released from prison following her December 14 arrest on charges of money laundering and the attempted murder of her husband in a South African hospital in July.

She returned to the matrimonial home in Borrowdale Brooke but was denied access. She said soldiers had also been deployed to her business premises in Domboshava where the couple is building a private hospital, while some of her personal belongings had been taken away from the Orchid Gardens by a “military vehicle”.

Chiwenga, through his lawyer Wilson Manase, is contesting his wife’s claim to several vehicles, and also denies that she is destitute.

But his revelations on how he came to be in possession of some luxury vehicles will reignite debate around the Command Agriculture scheme, and allegations of “state capture” which have dogged Tagwireyi.

Mubaiwa claimed in her court filing that the Lexus was her regular vehicle, but Chiwenga says in response that it given to him “under the Command Agriculture programme to supervise the programme countrywide.”

Chiwenga, as vice president, already has over a dozen official vehicles allocated for his use by the state. It is not clear why he had to be allocated another vehicle under Command Agriculture, through which a parliamentary committee said USD$3 billion was spent between 2017 and 2018, without any paper trail.

Tagwireyi’s Sakunda Holdings was the chief financier of the Command Agriculture scheme, which the new Finance Minister Mthuli Ncube last October admitted was “opaque”.

Ncube has since revised the model. Instead of Sakunda providing the whole funding as a loan to the government, farmers will now access finance directly from three commercial banks, with government only providing the necessary guarantees.

Tagwireyi, the local partner of Trafigura of Singapore, is also shown in the court documents to have given Chiwenga a Mercedes Benz E350 “as an escort vehicle for the children”.

The revelations will raise fresh questions about Tagwireyi’s influence over the country’s top politicians which has led to allegations that he has “captured the state”.

In 2018 when President Emmerson Mnangagwa announced his new Cabinet in which he dropped several top Zanu PF figures like Patrick Chinamasa and Obert Mpofu, he said that these senior officials would be re-assigned to the party’s headquarters with the same perks as ministers. It was Tagwireyi who bought over a dozen Toyota Land Cruiser V8 vehicles – the same as those issued to ministers – for issue to the dropped former ministers who were given Zanu PF portfolios.

Last year in September, Sakunda’s bank accounts were temporarily frozen after the company was accused of pouring huge sums of money into the parallel forex market to mop up United States dollars, in the process almost collapsing the country’s currency.

The accounts were later quietly unfrozen, and no action was taken against Tagwireyi or his companies.

Post published in: Featured

Zimbabwean finance minister Mthuli Ncube. Picture: REUTERS

Paul Singer has a knack for getting his way. Whether his reputation precedes him, or through force of personality or argument or fear, or stubbornness, or patience, or elections, or holographic armies, companies eventually come around to his way of thinking (or are replaced by those who do). Which is all to say if you want to be one of the few Elliott targets to escape unscathed, it’s best not to hand it any extra ammunition. This, apparently, did not occur to Capgemini CEO Paul Hermelin.

In a recent interview, he drew attention to a fairness opinion commissioned by the Altran board which concluded the company was worth about 13 euros a share. That’s hardly going to make shareholders feel an urgent need to take 1 euro a share more…. Some Altran shareholders may dislike the offer and yet feel compelled to accept for fear of being stuck in a minority if their fellow investors gave Capgemini those minimum acceptances. Hermelin has himself eased such concerns by indicating that a simple majority holding would be sufficient to enable Capgemini to harvest financial benefits from Altran. In that case, minorities who stayed on board would be compensated as they would enjoy the value creation. And Capgemini has promised minority shareholders the chance to change their mind and accept the offer in March anyway.

When Elliott’s After You, Don’t Give It Ammunition [Bloomberg]