Category: News Feeds

Cramming for the CCPA

Cramming for the CCPA

Axiom & Above the Law

On my commute home last night to Cliffside Park, New Jersey (yes, I am one of those bridge and tunnel lawyers and no, I do not live on a specific exit off the Garden State Parkway), I was flipping through an Instagram page dedicated to memes about practicing law and attorney lifestyles, when I came across a seemingly lighthearted post. The post documented an outrageous interaction that the meme creator experienced in his recent litigation practice — the piece related to the signature block of an extremely busy attorney who would only answer calls for 30 minutes per day. I am sure most of you have already seen it. This got me thinking: Why does our profession not only tolerate but empower bad-temperedness? Civility is quickly fading in civil practice.

I have said it before, and I will say it again, the best and worst advice I have ever received from a supervising attorney: “If the law is on your side, argue the law. If the facts are on your side, argue the facts.” This is where the expression should stop, but it does not. “If neither the law nor the facts are on your side, yell louder than the other guy.” Our profession, which requires years of education and a documented history of a high ethical standard, prides itself on resolving matters for our clients in a civilized and intellectual manner. Yet our relations with our adversaries has devolved.

Spend a few hours in the hallways of 141 Livingston and you will swear that lawyers are paid to yell at each other rather than advocate for their clients. Fortunately, this is not the case in all courthouses, but even in the federal courts, civility is losing ground to underhanded tactics and routine abuse of adversaries.

Consider some of the worst abuse you have experienced at the hands of opposing counsel. More likely than not, you have a story about the adversary who made your blood boil. Now think whether the outcome of that case changed in any way due to opposing counsel’s behavior — it likely did not. As previously discussed, it is usually the facts that decide outcomes of cases. So why was such behavior necessary or appropriate in that scenario?

One of my colleagues and I were recently discussing some of the more boorish behavior we have experienced in the field. A few of the stories included a firm whose litigation practice resulted in opposing counsel being fired by his client, much to the delight of that firm; an attorney who would routinely notice motions for the day before court observed holidays so as to inconvenience opposing counsel; and a firm that made a practice of scheduling depositions for Friday afternoons to force additional fees to be incurred when out-of-state opposing counsel would inevitably need to stay over the weekend to conclude the deposition on the following Monday.

While these practices, and many like them, are on the border of what is permissible by our ethical duties, there is a deeper issue underlying them. Whether the root cause of this discourtesy is a lack of empathy among members of the legal profession, or a misguided belief that such actions somehow benefit our client’s goals — which they do not — the fact remains that we, as professionals, can do better.

Andrew C. Bershtein is an attorney at Balestriere Fariello who represents clients in in all stages of litigation, arbitration, and mediation. He focuses practice on complex commercial litigation, contract disputes, and real estate law. You can reach Andrew at andrew.c.bershtein@balestrierefariello.com.

Which Supreme Court justice was the first to have their oath-taking ceremony broadcast live on TV?

Hint: Cameras may not be allowed when the Court is in session, but that doesn’t mean the justices shy away from a TV moment.

See the answer on the next page.

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For partners in Texas considering a change, the time is now. After an unprecedented number of lateral partner movements in 2018, Texas continues to be a hotbed of activity.

There were a whopping 284 lateral partner movements in the Am Law 200 in Texas in 2018. The majority of these took place in the first two quarters, following a fairly typical pattern in years past.

Dallas beat out Houston, with 127 lateral moves to Houston’s 108. In Dallas, the majority of these moves were in corporate practices followed closely by litigation. In Houston, corporate, energy, and litigation were the top three practices areas on the move.

The high number of lateral moves in 2018 were in part driven by several office openings, including Shearman & Sterling LLP in Austin, Katten Muchin in Dallas, Reed Smith in Austin, and White & Case in Houston.

2019 is not quite at the frantic pace of 2018, but is still a very active year for lateral partners. Nearly 100 Dallas partners have lateraled to date, with close to 90 in Houston.

As we roll deeper into the fourth quarter, I expect lateral partner moves to pick up and carry over into the first two quarters of 2020 for several reasons:

1. With a potential recession looming in the background, it is more important than ever for partners to make sure the platform they are on is the absolute best one for their practice and clients.

2. The 1st and 2nd quarter are typically ideal times for partners to move after they have collected any holdbacks, true-ups, profit sharing, or bonuses which are usually paid around that time. As a lateral move can take several months, the high numbers of lateral partners moving in the 1st and 2nd quarter are a result of conversations that started happening around now, in the 4th quarter. The logistics of getting several busy schedules aligned for meetings, the lateral partner questionnaire, conflicts, and executive/management committee votes all take time.

3. A large number of Am Law 200 firms have moved into the market in the past five years in addition to several Texas firms that have been involved with major firm mergers. These big changes continue to have a ripple effect for years as partners evaluate whether their rapidly changing firm continues to make strategic sense for their client base.

4. Many partners with rate-sensitive practices are moving firms, particularly with patent prosecution and labor & employment. Regional or large firms with flexible hourly rates are using the opportunity to aggressively bulk up their groups.

Please reach out to me at mganguly@laterallink.com if you want to discuss Texas. I’m always happy to chat about the market, even if you are not actively looking.

Miranda Ganguly

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Miranda Ganguly is a Director based in Houston, where she focuses exclusively on lateral partner and group movements in major markets across the United States. She went straight into legal recruiting after completing her law degree, practiced law in the late 2000s, then returned to legal recruiting. Over the course of her career, she has placed attorneys in Am Law 200 law firms, Fortune 100 companies, and high-end boutiques in New York, California, Texas, D.C., and internationally in the U.A.E. and South America.

Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click ::here:: to find out more about us.

[It was never one of my career goals to be an] unemployed B-list celebrity. … Because it may distract you, I’m 6 feet, 8 inches tall, it’s a freak show.

— Former FBI Director James Comey, addressing “the elephants in the room” during a speaking engagement at the University of Chicago Law School earlier this week, where he encouraged students to become ethical leaders, his life’s mission ever since being fired by President Donald Trump. “I believe that lawyers and especially graduates of this law school are uniquely suited to be ethical leaders,” said Comey. “My hope for all of you is that you take this amazing education you are getting here, realize the value of it, and use it to participate in the life of institutions of all kinds.”

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.

Ed. note: This is the first article in a two-part series about recent case law related to the False Claims Act (FCA), which signals a heightened need for vigilance by companies (especially government contractors) around the security of their supply chains. Part two will address proactive steps that companies can take to reduce their FCA threat profile. 

When the FCA (31 U.S.C. §§ 3729 – 3733) was enacted by Congress in 1863 in response to concerns about the sale of fraudulent goods (think: Wonky horses, faulty rifles, and rancid rations) to the Union Army, private citizens became empowered to act as whistleblowers by gaining standing and financial incentives to file civil claims (known as “qui tam” actions) against those contractors on behalf of the government. Today, the FCA is gaining ground by empowering whistleblowers (known as “relators” under FCA) to combat cyber threats in government supply chains.

In April 2019, network security company Fortinet paid the U.S. government $545,000 to resolve allegations that it violated the FCA.  Between 2009 and 2016, a Fortinet employee altered the label on certain products so that they would appear compliant with the Trade Agreement Act, which prohibits government contractors from purchasing products that are not entirely from, or “substantially transformed” in the United States or certain designated countries.  The Department of Justice expressed concern with the Chinese origin of the technology underlying the Fortinet components and the concordant need to combat “procurement fraud and cyber risk within U.S. Department of Defense programs.”

In May of this year, the U.S. District Court for the Eastern District of California issued what appears to be the first decision to address the intersection between cybersecurity requirements and the FCA in a case against Aerojet, a supplier of rocket parts.  In this case, Aerojet’s former director of cyber security compliance and controls filed a lawsuit under FCA for Aerojet’s misrepresentation of its compliance with cybersecurity requirements relating to the award of several DOD and NASA contracts.  The whistleblower claims an outside consulting firm audited Aerojet’s compliance with the DOD and NASA cybersecurity requirements in early 2014 and found the company to be “less than 25 percent compliant” with the National Institute of Science and Technology and DFAR standards.  He consequently refused to sign documents affirming compliance with those standards and Aerojet terminated his employment.

Most recently, in July, a whistleblower earned $1.6 million from Cisco alongside a $8.6 million government settlement for exposing security flaws in a video security software product that was sold to the local, state and federal entities within the U.S. government.  The whistleblower had been terminated from his position at a Danish partner company after discovering a series of vulnerabilities and reporting them to Cisco.  These flaws were embedded in the software as early as 2008 and could have created backdoors into an organization’s computer network.  This is purportedly the first time a company has made a payment under the FCA for a failure to meet security standards.

With hundreds of false-claim suits filed every year and cyber flaws now fair game for whistleblowers, technology companies are increasingly at risk of violating the FCA. The sums can be substantial.  These incentives may also have the effect of driving insiders who are aware of internal organizational vulnerabilities towards government reporting and whistleblower rewards, and away from exhausting their company’s internal compliance measures.  Additionally, even though actual knowledge of noncompliance or reckless disregard are the requisite standards to progress a FCA claim, companies that may otherwise rely on a more lenient view towards compliance with government cybersecurity standards should plan to demonstrate more diligence in their compliance efforts.

The Changing Landscape of the Supply Chain

Advances in hardware and software have also significantly increased risk for FCA noncompliance. The more complex the supply chain grows, the harder it is to keep it secure, according to Doug Shepherd, Chief Security Officer at Nisos (disclosure: I work at Nisos). “As storage and computing power get increasingly compact, it’s easier to embed malice in a very small part of a supply chain,” he adds.

The criticality of information security protection in business practices has grown substantially especially in the wake of enforcement actions, causing a trickle-down effect. As noted by Mark Chandler, Cisco’s Executive Counsel: “As networked data becomes core to more and more activities, security failures can endanger national economic and physical security…. The standards by which suppliers are judged are also changing.”

At a CyberScoop talk in Washington, D.C., on October 24, 2019, Cybersecurity and Infrastructure Agency (CISA) director Chris Krebs described the recent creation of a CISA supply chain task force uniting both industry and government infosec leaders as a critical resource for protecting U.S. critical infrastructure, especially for companies with limited security budgets.  The newly formed task force on supply chain will propose improvements to the supply chain compliance model including developing a common framework for the sharing of supply chain risk information and criteria for evaluating products, services, and vendors.

“Ultimately, vendors who prioritize short cuts over national security should be held accountable,” says Chris Brewster, Administrative Counsel of the House of Representatives. “Government contractors have heightened responsibilities — whether associated with the supply-chain, government intellectual property rights or data protection requirements — that are integral to the contracting process under the Federal Acquisition Regulation.”

In part two of this series, I’ll draw upon the guidance of industry experts to address what companies can do to improve their supply chain risk model.  Until then, it’s important to keep in mind that in the eyes of regulators, legislators, judges, and whistleblowers alike, ignorance is far from blissful.  Training and due diligence coupled with accuracy and transparency will help organizations that contract with the government sidestep FCA sinkholes.

Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

Be careful what you wish for.

Alan Dershowitz publicly challenged the women who accused him of partaking in the Jeffrey Epstein sex trafficking scandal to sue him for defamation. Virginia Giuffre went ahead and filed suit, prompting Dershowitz to complain that they have no basis to sue him. The judge told him that his argument was ridiculous, but in the process granted Dershowitz’s disqualification motion arguing that David Boies and Boies Schiller should be disqualified as Giuffre’s counsel because Dershowitz intends to accuse the firm of a conspiracy to blackmail him and that therefore makes them fact witnesses.

The “stratergy” here was a gamble that without Boies on the case, Giuffre would struggle to find competent counsel to keep the claim going. It’s why this disqualification argument was such troubling precedent — if pro bono counsel can get kicked off a case so easily, it can close doors to justice for many litigants. That said, I noted at the time that Giuffre was likely to find another top-notch litigator willing to take on this specific matter and that’s turned out to be true.

Chuck Cooper of Cooper & Kirk filed pro hac papers yesterday looking to take over Virginia Giuffre’s case. This means Dershowitz now faces a seasoned Supreme Court litigator that The National Law Journal ranks as one of the 10 best civil litigators in Washington.

A former Reagan administration DOJ official, Cooper is well-known for representing conservative bigwigs like Jeff Sessions and John Bolton and taking up right-wing causes in federal court from representing the NRA to defending religion in schools in Lee v. Weisman. Cooper was even considered a frontrunner for the Solicitor General post that eventually went to Noel Francisco. In fact, it was Cooper who argued on behalf of California’s Proposition 8 in the landmark marriage equality case won by Boies and Gibson Dunn’s Ted Olson (Cooper would go on to plan his own daughter’s same-sex wedding, so he’s probably happy in retrospect to have lost that one).

For Dershowitz, the defamation case will roll on with another thorough and aggressive heavy hitter in that plaintiff’s counsel seat.

Earlier: Judge Mocks That Bonkers Republication Argument Dershowitz Made
Alan Dershowitz Says He Has A ‘Perfect Sex Life,’ Answering The Question Literally No One Asked
Who’s Up For A Fun Night Out Watching Alan Dershowitz Talk About Sex Trafficking?
Dershowitz’s Motion To Disqualify Boies Schiller Immediately Dumped For Hilarious Reason
Harvard Law School’s Dershowitz Moves To Disqualify Boies Schiller In Sex Trafficking Case
Dershowitz Wanted A Trial Over Sex Trafficking Accusations — He’s Getting One
Some (Tentative) Good News For Alan Dershowitz… And Some More Bad News
I Just Had To Think About Alan Dershowitz’s Underwear And Now So Do You
Alan Dershowitz Says He Thinks He Should’ve Gotten Epstein A BETTER Deal In Wild Doubling-Down Interview
After Publicly Demanding His Accusers Sue Him, Dershowitz Is Arguing That His Accusers Have No Basis To Sue Him

One of the few silver linings of the 2008 financial crisis was that many lawyers were shocked into budget consciousness. Seemingly overnight, lawyers became willing to reassess old assumptions. Maybe they could live without personal copies of treatises. Maybe they would try online resources that they had resisted. The crisis has passed but the changed legal market place remains. Law firms that want to invest in new technologies must subsidize those investments with lean budget practices that continuously reassess all ongoing costs. No product is a “slam dunk” for annual renewal in 2019 without some “due diligence.”

Here are some tips to help your “harvest” saving which can be reinvested in “nextgen” resources.

Focus on ROI. Products such as Research Monitor and Onelog can provide invaluable insights into the number of lawyers who actually use web-based products.  Products are often maintained based on  “anecdotal” statements suggesting that a product is “used by everyone.” Tracking actual product usage may tell a very different story.  Actual product utilization is a more reliable basis for renewal and cancellation decisions. Usage data can also be a powerful lever in negotiations with vendors.

Centralize Procurement With the Experts. The IT team has the expertise to evaluate software and understand network compliance and security issues. Research/KM teams have content and licensing expertise to assess digital resources. An inventory of all resources is a first step toward eliminating redundant products and creating cost accountability system.

Communicate with Practice Groups and Business Units. Provide practice group leaders with a spreadsheet listing the resources that are purchased for the benefit of that practice group. Engage their assistance in eliminating products which have declined in use or which are duplicative.

Work with Business Unit Stakeholders. News and business data is utilized by both lawyers and administrative units. For example, conflicts, research, and marketing teams all need access to business data, but a firm could end up with three different largely redundant products. Assess the workflow and content needs of each team and identify the best product that will meet the needs of all.

Establish Budget Policies and Systems for Approval. Is partner approval required for purchases charged to practice groups? If yes, is there an approval cap? Are there some cost thresholds that need to be approved by the executive director or management committee? Are there any resources such as deskbooks and court rules which any lawyer can request without approval? Having a written policy which explains how to request a new resource and who needs to approve purchases enables lawyers to support budget best practices and policies.

Thwarting Rogue Purchasers. In any organization, there are personalities that routinely find ways to avoid the rules. The Accounting Department can be a powerful ally in frustrating the “rogue” purchasers who try to circumvent the approval and review process by trying to get reimbursement for their unauthorized  purchases. Accounting personnel will be happy to assist in your budget compliance initiatives.

Right Size Your Licenses. If your practice groups have shrunk since the last renewal of a license — look at the “material change” clause in your license — you may be able to cancel products which are no longer needed or shrink licenses which have more seats than you now need.

Avoid Automatic Renewals. Many licenses will auto-renew unless the vendor receives a written notice 30, 60, or even 90 days prior to renewal.  There are contract management products which offer an automatic “tickler system” that alerts contract stakeholders of key dates for contract cancellation and renewal. A simple spreadsheet which lists all license renewal dates and notice of termination deadlines can be used to proactively track and cancel under-performing products.

Replace Print with Digital. Digital resources get a “bad rap” for being costlier than print. Digital resources may be more expensive but they are also offer “virtual library access” available to all lawyers, at any time, from any location with internet access. The true cost of print resources needs to include the costs of maintenance including staff to manage print, upkeep costs such as loose-leaf filing, and space for library storage. The total cost of print often compares unfavorably with the digital alternatives.

Be Proactive — Know the Market. One of the best ways to manage costs is to maintain an expert understanding of emerging products. Proactively seek out products which are less expensive or better than existing products. Engage practice groups in the ongoing evaluation of new products with a view to eliminating inferior legacy products. Use your knowledge of the market in product negotiations with existing vendors.

When the Hot Rainmaker Departs… The Bitcoin Guru came and went — and she may be leaving  suite of high-ticket specialty resources that no one else wants. Have a system for tracking all resources purchased for specific individuals and cancel their legacy resources when you receive the lawyer departure notice. Practice groups are transient too, and niche practice groups are the worst. What will you do with all those equine law resources? Cancel ASAP.

When in Doubt — Cancel. The most telling way to determine the value of a resource is to terminate the license and see if anyone notices. More than once in my career, that expensive product which a lawyer insisted they “used every day” was gone more than a year before the lawyer noticed.

How can you harvest your budget savings? Budget management is an ongoing process which can get easier and more efficient with smart centralization, the collection of ROI data, and effective communication with practice groups and business units. Budgets in most firms remain flat, therefore effective saving strategies may offer the best way to fund the procurement of  “next gen” products which offer AI and analytics features and functionality.

Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.