Category: News Feeds

Et tu, Centennial State?

Yes, home DNA kits are revealing all kinds of secrets we never expected. One of those secrets is that apparently it was all too common for doctors to claim to be using “anonymous” sperm — generally from a fabricated “medical student” — to assist patients with infertility. All the while, these male doctors were instead using their own, personal, freshly provided sperm to impregnate their patients.

Sadly, my own state of Colorado is the latest to uncover victims of this practice, and its own local perpetrator, Dr. Paul Jones of Grand Junction, Colorado. In a new lawsuit, attorney Patrick Fitz-Gerald — don’t forget the hyphen in his last name if you’re searching for this case by attorney name — alleges in Mesa County district court that four plaintiffs were the victims of this type of medical fraud. The defendants are Dr. Jones and his medical practice, Women’s Healthcare of Western Colorado, P.C.

Plaintiff Maia Emmons-Boring, like so many similarly situated plaintiffs, discovered through a home DNA kit that the man who raised her, and who she believed to be her biological father for the last 39 years of her life, was not, in fact, genetically related to her. Instead, she seemed to have numerous half siblings that she did not previously know. That led to her find out that, instead of the man she knew as dad, her mother’s doctor was both her and her sister’s biological father.

Emmons-Boring’s mother, Cheryl Emmons, explained the situation to her daughter, acknowledging that when she and Emmons-Boring’s father were unable to conceive, they sought the assistance of Dr. Jones. Dr. Jones informed the couple that he would use “fresh sperm” from an anonymous sperm donor in good health “who was either a medical student or law student.” (Despite the icky circumstances, I am proud to see that “law student” made the cut here as a proxy for “good genes.”) The complaint explains how Dr. Jones would not permit Cheryl Emmon’s spouse to be in the room during the procedure, but would instruct the couple to go home and “make love” that night, so that they could never really be sure whether the husband was the father to their child or not. *major eye roll*

Of course, with the advancement of medical technology and DNA testing, we can be oh-so sure now. And Emmons-Boring’s suit complains that Dr. Jones committed an act that, at the very least, should be subject to civil liability. The complaint, which includes Emmons-Boring, her sister, and her parents, seeks damages for medical negligence, lack of informed consent, fraud, negligent misrepresentation, breach of contract, battery, and extreme and outrageous conduct.

I spoke with Fitz-Gerald about his client’s case. Fitz-Gerald is also representing at least 11 other plaintiffs who may be victims of Dr. Jones’ shady medical practices. He expects to brings similar claims in those cases. Fitz-Gerald explained that they alerted the Attorney General of Colorado about the situation, and that just this past Friday, Dr. Jones voluntarily gave up his medical license. Despite this minor victory, Fitz-Gerald described how the victims are frustrated that Colorado law does not clearly define the doctor’s gross acts of deception as a crime. But that may soon change.

Colorado State Representative Kerry Tipper has been looking into the gaps in Colorado law in the reproductive technology field. Representative Tipper expects to propose new legislation in the upcoming session, starting in January 2020, to close those gaps. She explained to the Denver Post that her colleagues from both sides of the aisle were surprised to learn that this kind of behavior is not already unambiguously illegal in the state.

For his part, Fitz-Gerald expects that the fertility industry may not be a fan of new additional regulations, but noted that people’s lives and families are deeply affected in the most fundamental and devastating of ways by these scandals, and that they are currently without clear recourse under the law. Fitz-Gerald argued that it would be naïve to think that this is merely just a problem of the past, and that no doctor would do this kind of thing today.

The positive news is that Colorado can look to other states for successful fertility fraud legislation. This past year, both Texas and Indiana passed new laws to curb this type of behavior after each state discovered that it had its own bad-doctor problem. The podcast that I co-host has an excellent interview with a gross-doctor survivor, and the driving force behind the Texas legislation, Eve Wiley.

Texas passed a fertility fraud bill that added jail time to the books when a medical professional transfers reproductive cells to a non-consenting patient. Unfortunately, despite this progress, the Texas doctor who was specifically outed for this conduct continues to practice medicine, without any repercussions. In fact, the Texas Medical Board shockingly initially declined to investigate claims against Dr. Kim McMorries, despite his admissions that he had been using local sperm (like, very local, in that it was his own) to impregnate patients. However, last week the complainant, out-of-state expert Professor Jody L. Madeira, received news from the Texas Medical Board that its Disciplinary Process Review Committee voted to re-open the matter and would investigate the alleged violations of unprofessional and unethical conduct. That’s a positive step.

So, come on, Colorado. Here’s our chance to both call and raise Texas in the quest for better medical practices.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

It has been a while since we revisited the Isaac Royall controversy at Harvard Law School. For new people, Isaac Royall Jr. was the first benefactor of Harvard Law School. He was a wealthy man in pre-Revolutionary Massachusetts and, upon his death in 1781, he bequeathed a large part of his estate to Harvard University, for the study of law or medicine. Harvard went with the “law” option and more or less, Harvard Law School was born. Royall is remembered through an endowed professorship and his family crest used to be the seal emblazoned on the seal of the law school.

As a wealthy white man in the 18th century, it should come as no surprise that Royall was a slaver. Research into Harvard’s founding resurfaced Royall’s oppressive past, and Harvard was pressured to divest itself of all memory of Royall. Eventually, Harvard did change the seal, marking a huge victory for students and alumni who pressed the university to get right with its past.

That was back in the spring of 2016. In the fall of 2016, America elected an open bigot as President of the United States. In 2017, Harvard put up a plaque recognizing “the enslaved whose labor created wealth that made possible the founding of the Harvard Law School.” On a personal note, I’ve seen the plaque. It appears maybe five steps away from where I once stood, as a black student at Harvard Law School, protesting Kiwi Camara’s use racial slurs in a class outline and the law school’s refusal to take disciplinary action against him. Life is long, strange, circular, and generally pointless.

I kind of lost the plot on whether we were still supposed to care about properly remembering 18th century slavers and their wheat insignia when their racist ideology so clearly lives on in modern times. Isaac Royall seems like an asshole, sure. But alleged attempted rapist Brett Kavanaugh is just sitting on the current Supreme Court, and I don’t feel like the great legal minds at Harvard Law School are doing nearly enough to make that not a thing.

But apparently, the Prime Minister of Antigua and Barbuda, Gaston Browne, has not lost the plot. Additional research has shown that Royall’s slaves most likely came from those islands. Prime Minister Browne doesn’t want a damn plaque, he wants backpay. From the Harvard Crimson:

Browne’s letter calls for Harvard to send reparations as recognition and compensation of Antiguan slaves in establishing the Law School.

“Reparation from Harvard would compensate for its development on the backs of our people,” Browne wrote. “Reparation is not aid; it is not a gift; it is compensation to correct the injustices of the past and restore equity. Harvard should be in the forefront of this effort.”

We are hopefully past the point where demands for reparations are met with cries of “impracticality.” In fact, Browne’s letter points out that the University of Glasgow and the Princeton Theological Seminary have already committed to some form of compensation for their roles in the Caribbean slave trade. I’m a Harvard man; I do not believe in a world where Princeton can figure out how to do something but Harvard can’t.

Harvard University President Lawrence Bacow responded to the Prime Minister’s letter with concern, but not cash:

Bacow said he considers the memorial’s establishment — along with the removal of the Law School’s seal containing the Royall family crest in 2016 — to be in “significant steps” toward acknowledging Harvard’s history, but noted the need for additional work.

“We recognize that there is more work to be done,” Bacow wrote. “Indeed, Harvard is determined to take additional steps to explore this institution’s historical relationship with slavery and the challenging moral questions that arise when confronting past injustices and their legacies. Harvard is also committed to working with other educational institutions to study slavery and its legacy.”

There are so many ways HLS can pay this debt. Off the top of my head, I can imagine: A Harvard legal clinic in Antigua and Barbuda along the lines of Harvard’s Ghana Project; a center for Caribbean Legal Studies at Harvard that could advance the scholarship around this overlooked area of law; scholarships for Antiguans seeking LL.M.s; setting up pipelines for Antiguans who want to apply to the law school; AND cash-money to Antigua and Barbuda from Harvard’s impressive endowment. Harvard could do them ALL.

This demand for reparations is an opportunity for Harvard to think critically and creatively about what it can do to fight against the legacy of slavery from which it has profited. Let’s hope they don’t waste the chance.

Prime Minister of Antigua and Barbuda Demands Reparations for Harvard’s Association with Slavery in Letter to Bacow [Harvard Crimson]

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.

Yesterday, we reported on a recently filed racial discrimination case against white-shoe Biglaw firm Davis Polk. The plaintiff is former associate Kaloma Cardwell, who alleges as an African-American he was not provided the same opportunities for career advancement — he says he was routinely left off deal emails and excluded from conference calls — as his white colleagues. The complaint further alleges that negative performance reviews were “retroactively created after Plaintiff engaged litigation” in order to create a pretext for firing him.

While we are still far away from any formal, filed response from the firm, they have broken their silence. Yesterday afternoon, all Davis Polk employees received an email from managing partner Neil Barr letting them know the firm would “defend [itself] vigorously and will show, based on the record, that the claims are not supported by the facts or the law.”

He also defends the firm’s diversity efforts, and touts that as a core value of the firm. You can read his entire email below:

Dear Colleagues:

As you may have seen, a lawsuit against Davis Polk and several individuals was filed last night by a former associate, Kaloma Cardwell, which alleges racial discrimination and retaliation.

Mr. Cardwell’s termination had nothing to do with his race. He was terminated for legitimate, non-discriminatory reasons following negative performance reviews given in the ordinary course. We will defend ourselves vigorously and will show, based on the record, that the claims are not supported by the facts or the law.

Diversity and inclusiveness in the workplace are core values and commitments of Davis Polk. We have worked hard to develop Firm-wide  training and development programs for lawyers across the seniority spectrum, and we have devoted substantial resources to the recruitment, training, and development of diverse talent. For many years, we have had a dedicated group of partners and administrators working on these issues.

I believe, as the Firm does, that having a diverse and inclusive work environment that promotes equality is not only the right thing but also leads to a more qualified workforce and delivers better and more innovative lawyering that is more responsive to clients’ needs.

I know you understand that given the pendency of this litigation, we are unable to provide additional information at this time. We will, however, keep you updated on developments as necessary. If you receive any inquiries related to the lawsuit, please refer them to Tenley Chepiga at our office of general counsel.

Best regards,

Neil Barr

We’ll be following along with the case as it develops.

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).

We want to be flexible for our clients. Bitcoin is an easy and secure way to transfer funds, and we embrace it.

— John Quinn, founding partner of Quinn Emanuel, commenting on the firm’s recent decision to accept Bitcoin and other cryptocurrencies as payment for legal services. Less than a handful of other Biglaw firms (e.g., Perkins Coie, Steptoe & Johnson, and Frost Brown Todd) have publicly announced accepting payment via cryptocurrency.

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.

There’s a bird loose in the Harvard Law School library, prompting Joe and Elie to have an impromptu debate over whether or not libraries are still essential in a world of digital research. Speaking of the internet, Deadspin’s entire staff resigned last week and the duo discuss the legal and policy implications of the blogosphere’s loss. Labor law, private equity business models, the bankruptcy code… it’s all involved in the otherwise straightforward demise of a venerable publication.

And Elie complains about Halloween.

Special thanks to our sponsor, Logikcull.

Thanksgiving is almost upon us, and before you gobble down some turkey, why not gobble down some new law school rankings? The Princeton Review recently released its annual law school ranking, covering the best 167 law schools in the country (up from 165 last year, and disregarding the fact that there are ~200 law schools with varying degrees of accreditation by the American Bar Association). Our condolences to the thirty-odd law schools that were unable to make the cut for the Princeton Review’s 2020 edition of the rankings — it must sting knowing that your institution is part of the small sliver of law schools that aren’t among the “best.”

We’ve focused on one of the 14 rankings categories that we thought people would be the most interested in: The law schools where graduates have the best career prospects. It wasn’t long ago that the Princeton Review’s loose definition of “career prospects” meant an entire class of law graduates could be putting the “bar” in “barista,” but thankfully the methodology was changed about four years ago, and these career rankings actually mean something now.

Princeton Review’s “Best Career Prospects” results are now based on highly relevant data reported by law school administrators, including median starting salaries, the percentage of students employed in jobs requiring bar passage (and not employed by the school), and the percentage of students who were able to pass the bar exam on their first try. The Princeton Review also relies on responses from student surveys.

Here are the top 10 law schools on the Princeton Review’s “Best Career Prospects” list for 2020. Things really changed for T14 schools over the course of the past year:

1. New York University School of Law (no change)
2. University of Virginia School of Law (ranked #4 last year)
3. Duke University School of Law (not ranked last year)
4. Stanford University School of Law (ranked #9 last year)
5. Harvard University Law School (no change)
6. Northwestern University Pritzker School of Law (ranked #7 last year)
7. University of Chicago Law School (ranked #3 last year)
8. Columbia University School of Law (ranked #2 last year)
9. University of Michigan Law School (ranked #8 last year)
10. University of Pennsylvania Law School (ranked #6 last year)

What on earth happened here to create such a huge shakeup in the rankings? For the answer, let’s return to Princeton Review’s methodology. Each law school was given a “career rating,” which on top of all of the statistical data reported by law school administrators, includes the following information:

This rating measures the confidence students have in their school’s ability to lead them to fruitful employment opportunities, as well as the school’s own record of having done so. … We ask students about how much the law program encourages practical experience; the opportunities for externships, internships, and clerkships; and how prepared to practice law they expect to feel after graduating.

Princeton Review continues to rely much too heavily on students’ feedback over actual data. Once again, people who felt like they’d get great jobs were more important than the people who were actually able to get great jobs. This may explain why Stanford Law, with 81.9 percent of the class of 2018 employed in full-time, long-term jobs where bar passage was required (discounting six school-funded positions) rose in the rankings, while Columbia Law, with 92.7 percent of the class of 2018 employed in full-time, long-term jobs where bar passage was required (discounting three school-funded positions), sank.

Did your law school or alma mater make the cut? If it did, do you think it was ranked fairly? If it didn’t make the list for best career prospects, do you agree with that assessment? Please email us or text us (646-820-8477) with your thoughts. Thanks.

Best Law Schools 2020 [Princeton Review]
Best Career Prospects 2020 [Princeton Review]

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.

The California Consumer Privacy Act,  the most significant privacy regulation ever enacted in the United States, takes effect in January 2020. In order to help in-house counsel and legal departments learn what they need to know about the implications of the new law, we’re hosting our free “Cramming for CCPA” webinar on November 13 at 11:00 a.m. ET. CLE credit will be available.

Our expert panel, led by Dave Feldman, Director of Offerings, Axiom who will be joined by global privacy experts, will provide insight into how their organizations’ CCPA implementation plans are proceeding. What key actions are they undertaking? What major roadblocks and challenges are they facing? What advice can they provide their peers regarding how to move swiftly and strategically to get their companies CCPA compliant?

In addition to these real world case studies, our program will also address:

• Where to start and the minimum requirements for compliance;
• Winning management buy-in for building your privacy program;
• How to set up a mechanism for consumers to exercise their rights; and
• The penalties for noncompliance and data breach.

Brian Dalton, VP of Research at Above the Law, will host the discussion.

Here at Above the Law, time and time again, we’ve warned both prospective and current law students about the dangers of student loans. According to the most recent data available for the class of 2018, the average law school graduate has a debt of $115,481 (that’s an average of $89,962 for public schools and an average of $130,900 for private schools). With debt loads that large, it is imperative that law school graduates secure employment with salaries high enough to service those loans, lest they risk defaulting on their debts. Given the disheartening employment statistics that some law schools have continued to post year after year, it seems obvious that graduates will have issues when it comes to repaying their debts; some graduates will allow their loans to fall into delinquency, and other graduates will default on their loans outright.

The consequences of student loan default are severe, and can range from wage garnishments to Treasury offsets to acceleration of the entire debt owed. This is not a situation that anyone would want to deal with at any time in their lives, but some law school graduates have been forced to endure the disastrous repercussions of default.

Are graduates of your law school at risk of defaulting on their student loans?

The latest information from the U.S. Department of Education may provide some guidance. During the tracking period for Fiscal Year 2016 — which includes data from October 1, 2015 to September 30, 2018 for borrowers who entered repayment in 2016 and defaulted in 2016, 2017, or 2018 — more than 20 freestanding law schools (i.e., law schools that aren’t affiliated with any college or university) reported student loan default rates of up to 5.5 percent. For what it’s worth, reliable data is currently unavailable for law schools affiliated with undergraduate colleges or universities because those default rates are included with their parent schools’ rates.

According to data collected by LendEDU, these are the freestanding law schools with the highest student loan default rates for Fiscal Year 2016 (some of these schools are unaccredited by the ABA, one is on ABA probation, and one has closed entirely):

If you’re having financial difficulties and you’re afraid that you will default on your student debt obligations, there are things you can do to take control of the situation. If you’re struggling to make your payments, call your loan servicer and figure out how to change your repayment plan. There are several income-based options that may be of considerable help to you. You can also enter into a deferral or a forbearance that will allow you to temporarily stop paying your loans to avoid default (although we must warn you that the interest on those loans will continue to pile up).

While you may not be able to control your employment opportunities, the federal government has provided loan holders with many opportunities to avoid default. Use them wisely, and you may be able to save your financial future from further damage.

Law school loan default rates low, with median below 2% [National Jurist]
A Look at Student Loan Default Rates by School & State [LendEDU]

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.

Taylor Swift and Lizzo are two shining stars occupying different spaces in the pop stratosphere, but they share the dubious distinction of being recently embroiled in legal spats over the allegedly unauthorized exploitation of short literary works written by other authors.

Never before have short literary works held so much value, importance, and cachet. The ability to express one’s self in a creative but pithy fashion drives online content creation, and public opinion now exalts tweets over long-form journalism.

So, in an age where tweets and Instagram captions reign supreme over most other forms of literature, it is in no way surprising that legal disputes have started to bubble up over the purloining of short written works.

But jurisprudence addressing such works has always been more Keats than tweets, with courts assessing poems and other works that while “short” are still pages or stanzas long. Only now, when literary works are shrinking to match the attention spans of this age, have courts begun to more carefully consider the creativity — and protectability — of pithy passages. Two recent cases, one in litigation and one settled, have thrust this issue into the public spotlight.

The first, and more developed, case involves T. Swift and can be summed up by the adage that “judges gon’ judge,” even when doing so improperly introduces the artistic sensibilities of the jurist into the legal process. While it has long been the rule that judges considering art and music copyright issues should consider only applicable legal doctrines and not whether a particular song is a bop, Swift’s case finds an appellate court again chastising a district court for letting its artistic sensibilities drive its decision.

Sean Hall and Nathan Butler had alleged that Taylor Swift’s “Shake it Off” copied without consent “a six-word phrase and a four-part lyrical sequence from their Playas Gon’ Play,” as the Ninth Circuit describes the dispute. The plaintiffs had written the song “Playas Gon’ Play” for the group 3 Little Women, more commonly known as 3LW. While they are now largely forgotten, 3LW was a major pop force at or around the turn of the century. In fact, the Playas Gon’ Play album, released in 2001, was certified platinum after selling more than a million copies.

The district court was unmoved by Hall and Butler’s claims, writing that the section that was allegedly copied was “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” On that basis, the case was discarded, at least for a brief moment, into the rubbish can of history

The Ninth Circuit, though, only a couple of weeks after hearing oral argument on the issue, axed the district court’s order, holding that Hall and Butler’s complaint plausibly alleged originality. The Circuit also reiterated that originality is normally a question of fact and drops a classic Bleistein bomb on the district court. In 1903’s Bleistein v. Donaldson Lithographing Co. decision, the Supremes’ instructed that a legal education does not an art critic make, and that jurists should stay in their lane when deciding cases involved art, confining their analysis to legal questions and not those sounding in art criticism.

In the ruling, Judge Oliver Wendell Holmes, Jr. wrote compellingly (and, somewhat ironically, with great artistic flair) that:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke…. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge…. [A]nd the taste of any public is not to be treated with contempt.

Here, the district court flexed too much artistic judgment in deciding that the plaintiffs’ work lacked creative merit. While it is axiomatic that copyright protects a given expression of an idea, not the idea itself, and 37 C.F.R. § 202.1(a) holds that “words [or] short phrases such as names, titles and slogans” are not copyrightable, in applying those doctrines, the district court strayed into adjudging the artistry of the literary work at issue.

The issue is not a simple one, as there is no bright-line rule defining the number of words that an author must employ to qualify a short literary work for copyright protection. And the issue is complicated further by the fact that certain works are revered and considered particularly creative because of the fact that they express a feeling in a minimum number of words. Consider Billy Shakes, who wrote, “A rose by any other name would smell as sweet” — an expression of an idea that is beautiful, creative, and less than 10 short words long. Even Hemingway, that gruff old bear, extolled the virtues of brevity, noting that a work’s value can be judged not by the words used but those left out. We will look more closely at what was left out of the works at issue in the Swift and Lizzo cases when we reconvene.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.