Category: News Feeds

Cultural norms and religious values often guide testators when considering provisions for their last wills and testaments. In some cultures the eldest child is deemed to receive more as a result of his birth order. In other cultures sons receive more than daughters. The latter practice was the center of a recent lawsuit in British Columbia, Canada wherein four sisters challenged a last will and testament wherein they were bequeathed only 1.7 percent of their parent’s estate worth $6.8 million (U.S. Dollars). Their two brothers were bequeathed 93 percent between them.

Last month a British Columbia Supreme Court granted each sister approximately $1 Million, overturning the contested last will and testament, to bring each one’s share to 15 percent. The brothers each received 20 percent as a result of the ruling.

The last will’s fairness was challenged on the basis of “tradition-based preference.” British Columbia’s Wills Estates and Succession Act (WESA) includes a provision that allowed the sisters to challenge their parent’s last will because of unequal treatment based on their sexes. In response to this kind of objection, certain parents argue that based on their tradition, it is common to treat sons and daughters differently under a last will and testament and such inequity should be allowed. In British Columbia, this has been a recurring issue especially amongst the East Asian population.

In the instant case, the East Indian family owned a farm. Although the parents’ wills did not explain the imbalance between the sons’ and daughters’ bequests, in prior legal documents pertaining to the family farm, the father referenced the custom of leaving property just to sons. Although the last will and testament was silent on the imbalance, the British Columbia court held that the distribution “fell far short of the moral standards of Canadian society, which provide for men and women to be treated equally.” The daughters aptly noted that there was no actual reason given in the testamentary document  for their unequal gifts, e.g. a failed relationship or disappointment. Often children are disinherited because of lack of contact, dispute or other issues. In this case, there was no reason for the imbalance in the testamentary scheme except for the parents’ cultural views of son and daughter inheritance which gave them standing to object under the WESA statute. The Court readjusted the percentages, ultimately giving little more to the brothers than their sisters, a nod to the parents’ cultural beliefs.

This case and others like it demonstrate the tension between testamentary intent and what is acceptable under the law. For example, one cannot disinherit her spouse. Jurisdictions have statutory mechanisms, often called a “right of election” to allow a disinherited spouse to claim one-third of a deceased spouse’s estate. This includes assets passing through a will and also outside of a will, via operation of law (notably WESA does not pertain to assets passing outside of probate). In right of election and WESA cases, public policy dictates how you may or may not treat your closest family members.

The British Columbia case highlights issues that arise in estate planning for individuals in many cultures and religions. Throughout  history we have seen different variations of the concept of priomogeniture, the right, by law or custom, of the firstborn son to inherit the parent’s entire estate which was a common practice in various monarchies.

The directive to give a firstborn son “extra” is rooted in the Book of Deuteronomy: “He (the father) must acknowledge the firstborn . . . and give him a double share in all that he possesses, for he (the firstborn son) is the first fruits of his strength; the right of the firstborn is his.” Deuteronomy 21:17. For observant Jewish testators the practice of giving the eldest son a double portion, is an issue that must be resolved in light of the parent wanting sons and daughters (who do not inherit under Biblical law) to be treated equally. There are several mechanisms employed to equalize the inheritance including the creation of a debt to the children (who receive a lesser share in accordance with the law) for a significant sum of money, larger than the expected value of the estate. The debt becomes due one hour preceding the testator’s death. The debt passes to the legal heirs and it includes a provision voiding the debt if the legal heirs equally share their inheritance with the others.

Inheritance is already a source of tension without religion and cultural customs interfering. In addition to the actual property at stake, so are emotions and feelings. It would behoove all testators to consider the ramifications of any unequal treatment in a last will and testament as it will surely give rise to some form of conflict among the family.

–CORI A. ROBINSON

Even though we’re not even into the fourth quarter yet, many folks are looking ahead to 2020 — and beyond. For example, the political and journalistic worlds are intensely focused on the 2020 presidential election right now, even though it’s more than a year away. Many people are ready for a new administration (and not just die-hard Democrats, but independents and even Republicans who are tired of Donald Trump).

If and when we see President Trump replaced by a Democrat — say, President Joe Biden or President Elizabeth Warren — expect the U.S. Department of Justice to be flooded with applications from young (and not-so-young) lawyers. Whether justified or not, many attorneys who would otherwise be interested in government service are steering clear of the DOJ right now, either because they disagree with the Trump DOJ agenda or because they don’t want to be accused of complicity with the regime (even though Honors Program spots are career positions rather than political appointments, and most of what line attorneys do in the DOJ, which includes U.S. Attorney’s Offices as well as Main Justice, has nothing to do with Trump).

How can you get into the federal government before the stampede begins? Try applying now, while applications might not be at peak volume — and, if you’re eligible, consider the DOJ Honors Program.

As I’ve explained in the past, the Justice Department’s Attorney General’s Honors Program is “the largest and most prestigious federal entry-level attorney hiring program of its kind.” Unlike fellowships of a defined length (e.g., Skadden Fellowships for public interest work), Honors Program positions are generally positions of permanent employment (subject to just a few exceptions). So once you enter the DOJ through the Honors Program, you can build your entire legal career in government if you so choose. (One famous example: former Deputy Attorney General Rod Rosenstein, who joined the Department through the Honors Program in 1990 and remained in DOJ employ for the next three decades or so, until stepping down as DAG this past May.)

For the 2019-2020 Honors Program, there appear to be 221 positions (not counting the 20 to 22 possible slots for informal participants, mainly at U.S. Attorney’s Offices — which generally don’t hire entry-level attorneys, making the Honors Program especially enticing). This figure of 221 represents a slight uptick from last year’s cycle, when there were around 195 positions. The application deadline is September 8, 2019 — so if you’re interested, get a move on.

In writing about last year’s program, Elie Mystal complained about the high number of slots in the Executive Office for Immigration Review (EOIR), which he branded Trump’s “Deportation Forces” — 131 out of 195 positions . This year, the total number of Honors Program jobs is up, and the number of EOIR jobs is down — 102 out of 221 positions. So EOIR posts have gone from representing more than two-thirds of Honors Program slots (67 percent) to under half (46 percent).

(It should be noted that EOIR’s domination of Honors Program hiring is not a Trump Administration phenomenon. For example, back in 2016, the final year of President Barack Obama’s administration, EOIR slots also amounted to 46 percent of Honors Program openings.)

If you’re interested in government opportunities beyond the Justice Department, you have options as well. For example, here are other governmental honors programs and their deadlines (click on each department’s or agency’s name for more information):

These are just examples. For more opportunities, surf over to USA Jobs. Some of the deadlines are almost here, so act fast.

What about the Consumer Financial Protection Bureau? Whether the CFPB will be doing any Honors Program hiring remains unclear.

In December 2017, the CFPB renamed its Honors Program, changing it from the Louis D. Brandeis Honors Attorney Program to the Joseph Story Honors Attorney Program (i.e., going from a liberal legal icon to a conservative one). In 2018, it seems that the renamed program didn’t do any hiring. As of now, the CFPB website tells prospective applicants to “check here starting fall 2019” (even though historically the CFPB Honors Program is usually taking applications by now, ahead of a mid-September deadline).

So has the Trump Administration quietly killed off the CFPB Honors Program? It wouldn’t be shocking, given the administration’s mixed feelings about the agency itself.

But if so, don’t count on it being dead forever. I’d expect robust hiring at the CFPB — for both the Honors Program and otherwise — under a President Elizabeth Warren.

The Attorney General’s Honors Program [U.S. Department of Justice]

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

There’s no question that advanced technology, and machine learning in particular, has revolutionized the way attorneys handle discovery and trial prep. Few legal tech companies have made greater advances in this area than the folks at Everlaw.

As always, Everlaw is committed to providing attorneys with a quick and easy-to-use experience that allows them to get the most value out of their time, while at the same time ensuring security and understanding the vital importance of keeping confidential data confidential. Everlaw has always kept the end user in mind when developing its tools, and it shows in their latest enhancements and features.

From making core discovery even easier, to implementing more machine learning capabilities, to adding a number of features to ease the burden of managing large eDiscovery projects, Everlaw has been busy making their sophisticated platform better than ever.

Enhancements to Core Discovery Functions

Everlaw shines when it comes to the basics of eDiscovery, perfecting the tasks that lawyers and discovery professionals have been doing for years — uploading files, getting them in useable formats, finding the relevant information within them, and producing them. By incorporating the power of machine learning, Everlaw allows attorneys to create ideal workflows from early document searching and review all the way through trial prep.

Maintaining its focus on simplicity of design, Everlaw has reimagined the way attorneys find relevant information, creating visual results out of intuitive drag-and-drop searches. Searches follow the logic you use to determine the documents you want to see, which makes it easy to craft even complex searches and get quick results.

What really sets Everlaw’s results apart from the competition is its customizable dashboards that offer visualizations of your searches broken down by factors like custodians, dates, coding parameters, or document types.

Click image to enlarge

 You can select and order the visualizations you most want to see in order to obtain a quick understanding of any given set of documents with just a glance. From within the visualizations you can run filters or make changes to the documents making up your search set. 

Users can also customize their full-screen document review page, choosing what information or tools are most relevant to their workflows for a given matter. Even better, Everlaw has rebuilt its PDF viewer to decrease load time and make it easy to scroll through documents rather than having to click page by page.

Predictive Coding Through Machine Learning

Recognizing that most eDiscovery tasks are still performed by people, Everlaw aims to provide the best tools to help those people get the most out of their review within limited time constraints. This is where machine learning plays a vital role. 

It’s often cost-prohibitive to review every single possible document, particularly in complex cases, so Everlaw uses predictive coding derived from models that use active learning to help identify the documents that are most likely to be responsive.

Click image to enlarge

Users don’t need a background in data analytics to effectively use the predictive coding tool. The tool automatically prioritizes documents so users see first the ones that are most likely to be relevant but have not yet been reviewed. Through a combination of statistics that show how well the tool is working in terms of accuracy and how many relevant documents may have been missed due to the thresholds you set, you can determine with confidence whether your review is complete.

In order to approach opposing counsel or the court with that determination, you need the most rigorous statistics possible. That’s why Everlaw has introduced a new Rigorous Mode, which automatically enforces a particular ordering on your document set that requires you to have viewed all the documents necessary to make sound decisions about your review.

Building Your Case

Everlaw continues to offer users the most effective tools for building a case once review is complete. With the game-changing StoryBuilder tool, your team can collaborate to use your documents to tell the best story of your case.

Click image to enlarge

StoryBuilder starts with a chronology and overlays key events, so you can see exactly where your documents fall in relation to those particular events. You can organize your documents, add descriptions, retitle them, and export them to deposition, cross-examination, or other outlines. There’s no easier way to collaborate with colleagues and co-counsel to use your documents to actually argue your case, all in one easy place.

New Features that Make eDiscovery Management Even Easier

Many of Everlaw’s newest developments revolve around the goal of making the management of eDiscovery easier. Particularly for those at larger organizations, coordinating multiple projects and large review teams can quickly become an administrative hassle. Everlaw has introduced a number of new features to help alleviate those burdens and ensure consistency across reviews and teams.

Everlaw’s new administrative view gives users who are managing projects and overseeing teams better tools for all aspects of a review — the ability to manage lists of users and projects, project sizes, and uploads, as well as seeing reviewer activity and access history.

Click image to enlarge

The platform now also includes project templating, which allows administrators to copy settings from previous projects or from pre-set templates when creating the parameters for a new review database. This not only saves time, it ensures consistency from project to project.

Click image to enlarge

What you want to copy is up to you — users, project settings, user groups, permission settings, coding sheets, or production protocols.

With respect to permission settings, Everlaw has overhauled those, too. Administrators now have granular control over the access permissions given to users or groups, allowing them to tailor different permissions for internal employees, contract employees, outside counsel, or even individual users.

Finally, Everlaw has removed one of the major roadblocks to coding consistency by adding new auto-code settings that apply conditional coding based on how certain documents relate to other documents. 

Click image to enlarge

Now, administrators can ensure that reviewers code consistently across document families or attachment groups by setting rules that will automatically code all documents in such groups the same way. These auto-coding rules are also an invaluable tool for protecting privilege, as the settings can be used to automatically code duplicate documents as privileged as soon as the first document receives that tag.

Everlaw’s newest features and enhancements are game-changers for clients with large teams and several concurrent matters, including sensitive Data Subject Access Request (DSAR) matters that require quick, accurate, and consistent treatment of PII for GDPR compliance.

Everlaw was already making it easier to handle your eDiscovery and build your case. Now they’ve made it possible to be even more confident in the accuracy, efficiency, and consistency of your review. When you want the most cutting-edge eDiscovery suite on the market, you want Everlaw.

At this point, everyone in the legal profession knows we’re an unhappy bunch. But for those with law school loans to service, ditching it all and opening up a scuba shop in the Caribbean isn’t really an option. So, is there any way to find a modicum of happiness or satisfaction and still be a top flight attorney?

Well, the American Lawyer’s annual midlevel satisfaction survey may give you a little direction. They’ve asked third through fifth year associates how satisfied they are with their firm on a variety of different questions: compensation and benefits; training and guidance; relations with partners and other associates; interest in and satisfaction level with the work; the firm’s policy on billable hours; and management’s openness about firm strategies and partnership chances. The resulting list gives a little insight into what it’s really like to practice at some of the best firms in the country.

Now, let’s get down to the rankings — we all know that’s why you clicked on this article in the first place. The full list is available here, but these are the firms that make the top 25 in terms of midlevel satisfaction:

1. Schulte
2. Paul Hastings
3. Drinker Biddle
4. O’Melveny
5. Blank Rome
6. Susman Godfrey
7. Proskauer Rose
8. Gibson Dunn
9. Cadwalader
10. Kirkland
11. Morgan Lewis
12. Latham & Watkins
13. Eversheds Sutherland
14. Cahill
15. Akin Gump
16. Williams & Connolly
17. Thompson & Knight
18. Ropes & Gray
19. Dechert
20. Carlton Fields
21. Orrick
22. Kramer Levin
23. Goulston & Storrs
24. Alson & Bird
25. Robins Kaplan

Congratulations to all the firms that made the list! And congratulations to the midlevels who have jobs they don’t hate.

The National Report [The American Lawyer]

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).

As my social media presence grows, so too do the number of trolls that seek to engage with me.  It doesn’t matter what I tweet.  It can be about cake.  However, most of the time it’s lawyers who tend to be the most vicious trollers.  Within minutes, someone will jumps out from nowhere (most often someone who doesn’t even follow me) to raise critical issues with my tweet. 

As it happens so frequently, I thought I would save myself and #Lawtwitter time and draft a form letter to respond to trolls.

“Dear Prospective Social Media Monitor:

Thank you for your interest in my tweet.  Sadly, I must reject your gracious offer to be my prospective social media monitor (“Troll”).  As you know, a quality Twitter account such as mine receives hundreds if not thousands of offers to be the exclusive trolling provider.  Unfortunately, your reply does not meet my standards of quality for the following reasons (checking all that apply):

____ 1.  While you are absolutely correct and I was out of line, you raised the issue in such a boorish and rude way, I am forced to both correct my tweet or delete it AND cease contact with you.  No further interaction is required.  Please accept my apologies for the inconvenience I caused you.  If you follow me, you may wish to unfollow me to avoid any further misunderstandings.  I should point out if you had used some tact, I would have thanked you, corrected my error, and not considered you a troll at all. 

____ 2.  You insulted me without raising any arguments.  No further interaction is needed because I’ve been called names since junior high, most way more clever than the one you chose to call me. 

____ 3.  You appear to have misread my tweet.  Please go back and review the tweet carefully for literary devices such as satire.  No further interaction is required, because I have faith you will come to understanding and enlightenment.  I’m optimistic that way.

____ 4.  My tweet was a matter of opinion.  That means if I tweet “I like cake,” you cannot dispute it, unless you somehow think I’m lying about it.  We will be unlikely to make headway.  “There ain’t no good guys, there ain’t no bad guys, there’s only you and me and we just disagree.”  No further action is needed, except to maybe get that Dave Mason song out of my head.

_____ 5.  You made a moral judgment about something related to my family.  Unfortunately, the position of moral judge of my life is the exclusive dominion of friends and family members.

_____ 6.  You claim facts that are not true in this universe.  Please return to the parallel universe from which you came so that you can live a happy and fulfilling life where you speak the truth.

_____  7.  You merely labeled me something. You did so without discussing the foundation of my argument, presumably so that you could dismiss it out of hand.  No further interaction is needed, except between you and the refills of your label maker.

______ 8.  You pivoted to a discussion beyond the scope of my original tweet.  You should start your own thread about that topic.  No further interaction is required.

______ 9.  SEA LION.  No further interaction is required.  Please visit your local aquarium for support.

_______ 10.  You demanded data knowing full well you were going to reject any data I sent to you.  Thus, after my initial data submission, no further interaction is needed. 

_______ 11.  You appear to be really busy moving goalposts, so I hope you have a wonderful time in your career with the NFL.  However, no further interaction is required, but I really care little or not at all for your goalposts.  It is not my job to convince you of anything.  I am not Sisyphus. 

________12.  I tried to follow you on the slippery slope you embarked us upon, but I injured my leg in the process.  As I seek medical attention, I will not have time to interact with you.  I couldn’t keep up, as the slippery slope you are on is so steep and the coefficient of friction (logic) so little that you’re down the mountain already.

________13.  You ruined Wizard of Oz for me.  I really liked the Tin Man.  (As singer Tracy Chapman sang, “Remember the Tin Man, found what he had what he thought he lacked.”)  But you are a very big fan of the Strawman.  No further interaction is needed.  We can’t get past this.  You are too efficient at making a strawman. 

________ 14.  All right.  You caught me.  I admit it!  My evil plot to destroy lives and take over the planet was foiled by your reply to my tweet.  Were it not for you, the other meddling kids and that one dog (the one who isn’t so Scrappy), I could have conquered the world.  But I’ll be back!  Just wait and see.  And maybe you’ll be defending against people like me somewhere else on Twitter.  Then my plans will come to fruition!  Until then, no further interaction is required. 

Thank you for your interest and obsession with my Twitter feed.  I hope you continue to enjoy #Lawtwitter and realize that your colleagues and clients can see what you post.

Very truly yours,

Lawprofblawg

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

So, you’re thinking of being a lawyer — congratulations (or maybe condolences) are in order. But where is actually the best place to start your legal career? While many default to the country’s largest cities because that’s where Biglaw has settled, the best place to be a lawyer may not be so cut and dry.

Enter the latest ranking into the legal space. Everyone knows lawyers love them some rankings and SmartAsset has run with a new ranking that assesses the best states (and the District of Columbia) to practice law. Their methodology balances six factors: the number of lawyers per 1,000 workers, average annual income, five-year earnings, five-year job growth, median home value and the percentage of law offices relative to total businesses. With home values thrown in there, you know some of the bigger legal markets — think New York and California — will take a bit of a hit but lawyers are packed into those jurisdictions so one imagines they’ll still make the cut.

So which states top SmartAsset’s list of the best place to work for lawyers? Here’s the top 10:

1. Illinois
2. Massachusetts
3. District of Columbia
4. California
5. Florida
6. New York
7. Georgia
8. Colorado
9. Texas
10. Connecticut

And way down at the bottom of the list is a tie for last between Idaho and Maine (Delaware and North Dakota were excluded from the ranking due to insufficient data). Other fun data from the ranking is that D.C. has the highest average annual income for a lawyer at $192,530 (California comes in #2 and New York 3).

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).

Everyone loves a good ending. Doesn’t matter if we are talking about a television show, sporting event, or IP case. Ok, so maybe the latter is more of a niche interest, but for those who care, a good ending to a heated IP dispute is still something to savor. Since the overwhelming majority of IP disputes settle, it is often easy to determine when a dispute has come to a close. While the terms of most disputes remain confidential, the interested public can usually at least glean that an agreement was reached between the former combatants. And for those of us who represent clients, negotiating (hopefully) favorable settlements for our clients is a critical aspect of IP practice, due to the importance of ending disputes in a way that allows clients to move forward with their businesses and interests better off than they were going into the case. 

As everyone recognizes, settling cases brings finality, even when the parties assume ongoing obligations as part of their agreement to settle. The alternative to settlement is usually additional litigation, which in IP cases can drag on interminably, sometimes through multiple rounds of appeal and remand. This phenomenon can lead to interesting circumstances in some cases, where one party is desperate to declare at least part of a case “over,” while the other fights to keep proceedings going so that they can avoid having to pay on a big verdict, for example. The point is that closing out cases that actually go to trial is difficult; in contrast to settlements that tend to end matters immediately, providing some element of closure to the dispute between the parties.

The truth is that getting to final judgment in a patent dispute is a difficult road, navigated successfully by only the most dogged of patentees. It is nearly always far easier to just settle matters, rather than have to deal with the difficulties of enforcing a judgment. But sometimes hands are forced, requiring a patentee to move the trial court for an order allowing it to collect on a judgment. As one would suspect, such maneuvering is usually reserved for the most valuable of cases, where the amount in controversy justifies protracted legal wrangling between parties. It is the rare case indeed where the parties bring as much vigor to the fight four or five years into the case as they did when hostilities commenced. But it happens on occasion, with those circumstances worth studying as both a roadmap laying out how to proceed when trying to enforce a judgment, as well as a caution to those who hold to the belief that fighting to the bitter death is a road worth taking.

Take a recent decision out of the District of Kansas (not a patent hotbed, in case anyone was wondering) that dealt squarely with the issue of when a patent judgment can be enforced. While also reminding everyone just how long big-ticket patent cases can take to resolve — absent settlement, of course. The case — a patent dispute between Sprint and Time-Warner on technology for handling telephone calls over a network, was filed back in 2011. In a split decision, the Federal Circuit affirmed the damages awarded at trial of $140mm (big verdict) and declined to find the patents invalid for lack of written description. That decision was rendered on November 30, 2018, seven years after the case was filed. Since then, Time Warner has brought on leading Supreme Court advocate Paul Clement to file a petition for certiorari (good discussion here) based primarily on the idea that the awarded damages were too high due to a lack of apportionment by Sprint’s damages expert. (Whether or not that petition will be accepted is as of now unclear, though the issues presented are important — particularly the apportionment issue, which has readthrough to many patent cases that are ongoing or that will be filed.)

At the same time as Time Warner waits for the Supreme Court to decide whether it is interested in reviewing the damages award, Sprint filed a motion back in the district court — following the Federal Circuit’s affirmance — seeking to enforce the judgment it had received in March 2017 for about $140mm or so in damages. The trial judge granted the motion, finding that it no longer had the power to extend a stay of judgment pending Supreme Court review, since that power rested in the hands of the Federal Circuit, as the court whose order was being appealed to the Supreme Court. The judge granted the motion, even though he was sympathetic to the fact that it had appeared that Sprint had previously consented to a stay through a Supreme Court review, but no longer wanted to agree to such a stay once the Federal Circuit ruled in its favor. Either way, the judge found that even if he wanted to, he couldn’t extend the stay. Whether or not Time Warner actually has to pay the $140mm before the Supreme Court actually rules in uncertain. What should be clear, however, is that Sprint has been waiting a long time to see their money. And this is with Sprint having a winning patent hand.

Ultimately, the Sprint case confirms that even the most persistent patentees face a long road before they can collect on a judgment from a dogged, well-resourced defendant. While serving as a public service announcement in favor of settlement, cases like Sprint also caution against both patentees and litigation funders getting their hopes too high that a trial win is all that is needed to get a reluctant defendant to pay. Indeed, that trial win is often just one incremental step on the long march to actually getting paid on a final judgment. Want real finality? Settle.

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.

A court in Oklahoma has ordered Johnson & Johnson to pay more than half a billion dollars over allegations that it helped to fuel the opioid crisis.

The Cleveland County District Court in Norman, Oklahoma, issued a civil judgment requiring the drugmaker to pay $572 million. Judge Thad Balkman ruled that J&J had created a “public nuisance” in the state.

The company said it plans to appeal the decision, which it called “flawed.”

“Janssen did not cause the opioid crisis in Oklahoma, and neither the facts or the law support this outcome,” J&J general counsel Michael Ullman said in a statement, referring to the drugmaker’s Janssen Pharmaceutical Companies subsidiary. “We recognize the opioid crisis is a tremendously complex public health issue, and we have deep sympathy for everyone affected.”

J&J went on to say in its statement that the decision was not consistent with the facts or the law. It said the state failed to present evidence that J&J’s products or actions caused a public nuisance in Oklahoma. It also said the state disregarded 100 years of precedent in public nuisance law, adding that it had traditionally been applied to resolve property disputes rather than lawsuits involving the sale of goods.

Shares of J&J were up nearly 2 percent in after-hours trading on the New York Stock Exchange following the ruling.

In a note to investors, SVB Leerink analyst Ami Fadia wrote that although the amount is higher than the $270 million that Purdue Pharma had to pay, or the $85 million judgment against Teva Pharmaceutical Industries, it is still much lower than the $17.2 billion that Oklahoma Attorney General Mike Hunter had been seeking. Moreover, citing numbers from IQVIA, Fadia wrote that J&J’s opioid sales historically were lower than those of Purdue and Teva.

The relatively modest size of the penalty against J&J means that the stocks of other companies with opioid exposure – such as Teva, Endo Pharmaceuticals, Mylan and Amneal Pharmaceuticals – may be up in the markets Tuesday, Fadia wrote.

Fadia also wrote that the negative ruling against J&J has little direct read-through to the outcome of the upcoming multidistrict litigation, or MDL. For one, she wrote, J&J’s opioid sales were mainly in branded products, while the sales of the other companies have been primarily or even exclusively generics. Also, Balkman did not grant generic preemption, and the MDL could provide a more comprehensive forum for generic drugmakers to present their arguments.

Photo: fstop123, Getty Images

Both Houses of Parliament Will Resume Sitting on Tuesday 27th August

The Senate’s Special Sitting on 14th August

Recalled from their recess by the President to conduct special business [see Bill Watch 45/2019 of 12th August [link] – Senators assembled on Wednesday 14th August for a single sitting that lasted for just over eight hours, with the adjournment until Tuesday 27th August coming at 10.37 pm.  The special business specified by the President was passing the Appropriation Supplementary (2019) Bill, the Finance (No. 2) Bill and the Maintenance of Peace and Order Bill.

Fast-tracking

Senators began by approving a Government motion to fast-track all three Bills by suspending all Standing Orders that might otherwise prevent them from taking all stages of the Bills the same day.  Asked by the President of the Senate to give reasons for the motion, the Minister of Justice, Legal and Parliamentary Affairs briefly referred to the fact that the Second Session of the present Parliament would be starting in September, that the Government wished Parliament to complete the Bills before the end of the current Session and that the Maintenance of Peace and Order Bill, part of the Government’s “legislative reform agenda which had been outstanding for a long time”, had already been subjected to a long delay by the Parliamentary Legal Committee [PLC].   He did not, however, mention the special need for the Finance (No. 2) Bill to be gazetted as law on or before 21st August – which we explained in Bill Watch 45/2019 [link];  as things turned out, this deadline was met [see below under Acts gazetted].  

Maintenance of Peace and Order Bill

The Senate first tackled the Maintenance of Peace and Order Bill.  The Minister of Justice, Legal and Parliamentary Affairs piloted the Bill through the Senate instead of the Minister of Home Affairs and Cultural Heritage, who is the responsible Minister.  In his speech commencing the Second Reading stage the Minister explained to Senators the changes that had been made to the Bill by the National Assembly [link] before it reached the Senate.   Discussion of the Bill took until after 9 pm, with a fifteen-minute “re-energisation break” just after 8 pm.  Opposition Senators bombarded the Minister with criticisms of the Bill and suggestions for improvements.  The Minister, however, made only one concession – he accepted an amendment to clause 7(5), which will now read as follows:

‘Any person who knowingly fails to give notice of a gathering in terms of subsection (1) or of the postponement or delay of a gathering in terms of subsection (3) shall be liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding one year or to both”.

The MDC-A Chief Whip in the Senate, Senator Lilian Timveos, warned that the Opposition considered the Bill to be so inconsistent with the Constitution that challenges in the Constitutional Court were inevitable.

Eventually, the amended Bill was referred back to the PLC for a report on the amendment’s consistency with the Constitution.

Finance (No. 2) Bill [link] & Appropriation Supplementary (2019) Bill [link]

These two Bills were approved by the Senate as passed by the National Assembly, but not without protests and questions from Opposition Senators.

Protests centred on complaints that some Senators had not had been supplied with copies of the Bills and had, therefore, been unable to study them.

Questioned about the new PAYE tax-free threshold of $700 per month, Minister Ncube said the figure of $700 had been suggested to his Ministry during consultations with all the important National Employment Councils and accepted as fair, but, if it proved to be too low during the next few months, could be raised in the next Budget.  On whether new allocations of funds for provincial and local government bodies were constitutionally compliant he said they were, and pointed out he had ensured that the sum allocated to provinces and local authorities achieved the constitutional minimum of 5% of national revenues for the financial year, as fixed by section 301(3) of the Constitution.  But disbursement of funds allocated to provinces would depend on the enactment of new legislation for Provincial Councils, who would between them be getting one-quarter of that 5%.  Minister Ziyambi added that the constitutional provisions for devolution contained inconsistencies that needed to be corrected; this would be dealt with in the Government’s proposed omnibus Constitution Amendment Bill, which would also attend to “a lot” of other things, such as the timing of delimitation of constituencies and other areas for electoral purposes.

Acts gazetted   On 16th August Parliament sent both these Bills to the President and on 21st August both were gazetted as Acts, having received the President’s assent – Finance (No. 2) Act, 2019 (No. 7 of 2019) [link] and Appropriation Supplementary (2019) Act, 2019 (No. 8 of 2019) [link].  The former Act’s re-enactment of the Presidential Powers (Temporary Measures) (Amendment of (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, 2019, Statutory Instrument 33/2019, became law only hours before the expiry of the statutory instrument.

Coming Up in Parliament This Week

According to the Parliamentary Sitting Calendar, MPs should have been enjoying a recess from 2nd August to 10th September, the day scheduled for the opening of the Second Session.  Instead, both Houses had to sit in the week commencing 5th August, and Senators were recalled for a late night sitting on 14th August, described above.  And Committee members are presently conducting public hearings around the country on the Freedom of Information Bill and Marriages Bill.  This week both Houses face at least three more days’ overtime.

Whether this will be the last week of sittings in the First Session – and whether the next Session will open on 10th September or be postponed – remained uncertain at the time of writing.  But three days are unlikely to make an impressive improvement to this Session’s output of Bills.

In the Senate

Maintenance of Peace and Order Bill  Senators await the PLC’s report on the amendment the Senate made last week to clause 7(5) of the Bill [see above].  If, as expected, it is a non-adverse report, the amended Bill will nevertheless have to go back to the National Assembly for its approval.  So Parliament may not be able to finalise the Bill this week.

Report of the Thematic Committee on Human Rights on Visits to Police Stations and Border Posts  Item 1 on the Order Paper for 27th August is the motion by committee chairperson Senator Sekeramayi for the Senate to take note of this report.

Motions  The Order Paper also lists resumption of adjourned debates on motions on protection of the environment; the need for a legislative framework on pensions and insurance benefits; enforcement of the law on child marriages; perennial shortages of safe, clean and potable water.

Question Time  New questions listed for Thursday afternoon include one seeking an explanation from the Minister of Higher and Tertiary Education, Science and Technology Development regardinguniversity students’ loans, including disbursement agency, selection criteria and repayment modalities; and another asking the Minister of Foreign Affairs and International Trade when the Government will sign the AU’s Malabo Protocol on the Pan-African Parliament.

In the National Assembly

Bills

The first four items on the Order Paper for 27th August concern Bills:

Zimbabwe Investment and Development Agency Bill – for resumption of the Committee Stage.  There are several pages of proposed amendments to the Bill to be considered.

Money Laundering and Proceeds of Crime Amendment Bill – for commencement of Second Reading Stage.  There is pressure coming from the international Financial Action Task Force for this Bill to be passed.

Coroner’s Office Bill – for commencement of Second Reading Stage.

Education Amendment Bill – for consideration of the adverse report by the PLC on the amendments to the Bill made during the Committee Stage.  At this stage the contents of the adverse report are not known.

International Agreement for Approval: Beijing Treaty on Audio-Visual Performances

Item 5 on the Order Paper is a lengthy resolution presented by the Minister of Justice, Legal and Parliamentary Affairs seeking approval of the Beijing Treaty on Audio-Visual Performances (2012).  The resolution states that the Treaty recognises the rights of performers against unauthorised use of their performances; facilitates the protection of culture, folklore and cultural diversity by contributing to the protection of traditional cultural expressions and national folklore; and also helps strengthen local audio-visual industries by its international system of protection, thereby creating employment.

Committee Reports on Petitions to Parliament

Several take-note motions are listed regarding Portfolio Committee reports: (1) The Budget, Finance and Economic Development Committee’s report on Mr Ganagana’s Petition on Progress on Implementation of Recommendations of the Smith Commission of Inquiry into the Conversion of Insurance and Pension Values from Zimbabwe Dollars to US Dollars; (2) the Defence, Home Affairs and Security Services Committee’s report on the Petition by the Gwanda Community Youth Development Trust on access to primary documents; (3) the Public Service, Labour and Social Welfare Committee’s report on a Petition regarding Delays in Operationalising of SI 125/2013, the Non-Public Service Probation Officers Regulations; and (4) the Local Government Committee’s report on Gwanda Residents’ Petition on violation of rights to human dignity, water and clean environment.

Question Time [Wednesday]

97 questions with notice are listed, some dating from as long ago as November 2018.  Hon Matsikenyere asks the Minister of Youth, Sport and Recreation to state the Government’s position on the dissolution of the Zimbabwe Cricket board by the Sports and Recreation Commission and whether her Ministry has plans to engage the International Cricket Council to rescind its decision to suspend the Zimbabwe cricket team.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured