Ed. note: This is the latest installment in a series of posts on lateral partner moves from Lateral Link’s team of expert contributors. Michael Allen is Managing Principal at Lateral Link, focusing exclusively on partner placements with Am Law 200 clients.
For senior associates up for partner, firms have become increasingly focused on business potential and less so on an associate’s ability to outclass others in the courtroom or at the negotiating table.
In the days of yore, the partner track in Biglaw was oftentimes a reward for consistent competence and professionalism. In an era of PPP and RPL, most firms (other than the Cravath, Quinn, or Simpson Thacher types) are less likely to promote associates unless they see real revenue-generating potential.
If you find yourself in your fifth to tenth year and are unsure whether you will make partner, here are four steps to help you steer your career…
On Tuesday, the D.C. Circuit ruled against Matt Sissel, the Iowa artist and entrepreneur who challenged the Affordable Care Act’s individual mandate on the grounds that the law violated the U.S. Constitution’s Origination Clause. Article I, § 7, clause 1 requires that “all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.” Obamacare raises government revenue by billions of dollars, but it was drafted in the Senate. Judge Judith Rogers wrote the opinion in Sissel v. HHS for a panel including two newly minted Obama appointees, Judge Nina Pillard and Judge Robert Wilkins.
This ruling comes in the wake of last week’s dueling decisions in Halbig v. Burwell and King v. Burwell. Another D.C. Circuit panel found that Obamacare subsidies were illegal in the 36 states that refused to set up state healthcare exchanges. On the same day, the Fourth Circuit disagreed. In court battles, Obamacare opponents are winning some and losing some.
n Automated Solutions Corp. v. Paragon Data Systems, 2014 U.S. App. LEXIS 11918 (6th Cir. June 25, 2014), the United States Court of Appeals for the Sixth Circuit provided a close examination of the standards required for the imposition of severe sanctions for failing to preserve evidence. The case involved a dispute between two software companies over the development of software code. Essentially, the plaintiff Automated Solutions (“Automated”) accused Paragon Data Systems (“Paragon”) of utilizing Automated’s code to develop a competing software program. Automated filed a motion for sanctions seeking a default judgment against Paragon for Paragon’s failure to preserve a server and two hard drives utilized in the development of the competing software as well as computer backup tapes. The district court concluded that Paragon was negligent in failing to preserve the materials, but that there was no evidence indicating that Paragon acted with any willful or malicious behavior. Instead of imposing sanctions, the court indicated that it would consider the issuance of an adverse inference instruction against Paragon at trial. After Paragon prevailed on summary judgment, Automated appealed to the Sixth Circuit.
Ed note:CommLawBlog is part of the LexBlog Network (LXBN). LXBN is the world’s largest network of professional blogs. With more than 8,000 authors, LXBN is the only media source featuring the latest lawyer-generated commentary on news and issues from around the globe.
As comments pile up in the Open Internet proceeding, straining the FCC’s systems, a post on the Commission’s blog got us thinking about transparency.
On July 14, 2014 – the day before the original deadline for initial comments in the Open Internet (a/k/a Net Neutrality) proceeding – in the spirit of transparency the FCC’s Chief Information Officer took to the Commission’s blog to tout the agency’s ability to track the numbers of comments flooding in over the transom. According to a couple of files linked in his post, the Commission had received nearly 170,000 Net Neutrality comments submitted electronically through ECFS (the FCC’s online filing system), and another 442,000 or so by email. Those numbers are a moving target, though, and the target is only moving up: according to a post on ArsTechnica, by 11:00 a.m. on July 15, the tally was up to about 670,000.
Ed note: The CommLawBlog is part of the LexBlog Network (LXBN). LXBN is the world’s largest network of professional blogs. With more than 8,000 authors, LXBN is the only media source featuring the latest lawyer-generated commentary on news and issues from around the globe.
Trying to make lemonade out of the lemon handed to it by the Supreme Court, Aereo has come up with Plan B.
The best stories never really end when you think they’re going to, do they? There’s always a nifty twist that keeps the plot chugging along.
So we really didn’t expect that the Supreme Court’s decision was the last word in the Aereo case, did we?
And right we were.
After pulling the plug on its service within a couple of days after taking a seeming knock-out punch from the Supreme Court, Aereo has come up with a plan. According to a letter filed by Aereo with Judge Alison Nathan of the U.S. District Court for the Southern District of New York (where the Aereo saga first got our attention back in 2012), Aereo is now a cable company that is entitled – by Congress, thank you very much – to retransmit over-the-air broadcast programming. As long, that is, as Aereo files the necessary “statements of account” and “royalty fees”required of cable systems. And in its letter Aereo advises that it “is proceeding” to file just those items.
Following the adage about making lemonade when handed lemons, Aereo has taken the Supreme Court’s decision and tried to turn it to Aereo’s advantage. Since the Supremes said that Aereo is “highly similar” to a conventional cable company, well then (according to Aereo), Aereo is a cable system and, therefore, “is entitled to a license” under Section 111 of the Copyright Act.
And even if it’s not entitled to such a license, Aereo’s got another argument. The Supreme Court concluded that Aereo is like a cable system because Aereo provides “near simultaneous” retransmissions of over-the-air programming. So (Aereo reasons) if Aereo’s service were to be limited to delayed (i.e., not “near simultaneous”) retransmissions – providing, instead, essentially an elaborate recording-and-playback service – then Aereo would no longer be like a cable system and would no longer be subject to the terms of the Supreme Court’s decision. (Blogmeister’s Note: Props to the Swami, Kevin Goldberg, for seeing this argument coming.)
Aereo’s argument is far from perfect. For example, while the Supremes did clearly indicate that Aereo is “highly similar” to a cable system, it’s a stretch to conclude (as Aereo does) that the Supreme Court issued a “holding that Aereo is a cable system under the Copyright Act”. A couple of years ago an operation called ivi, Inc., which provided an Internet-delivered system for streaming over-the-air programming and claimed it was a cable system, didn’t make it out of the starting gate. While Aereo’s system is arguably different in certain respects from ivi’s, the fact that ivi didn’t get very far should send Aereo a cautionary message.
How Judge Nathan will react to Aereo’s pirouette remains to be seen.
But, for now, Aereo lives on. It’s into Plan B and its now-proposed service is far from the service that got this melodrama started in 2012. But it’s still with us, at least for a while.
Ed note: The Telecom Law Monitor is part of the LexBlog Network (LXBN). LXBN is the world’s largest network of professional blogs. With more than 8,000 authors, LXBN is the only media source featuring the latest lawyer-generated commentary on news and issues from around the globe.
The Senate is one step closer to a floor vote on cybersecurity legislation that would address information sharing between the private sector and the government. On July 8, the Senate Select Committee on Intelligence approved a contentious cybersecurity bill known as the Cyber Information Sharing Act (CISA).
The proposed legislation would remove legal barriers to allow private companies to share information regarding cyber-attacks “in real time” with other private companies and the government. Companies sharing information for cybersecurity purposes would be shielded from lawsuits by individuals against the company for sharing that data, regardless of terms of service contracts that may prevent such actions without a customer’s consent. In order to receive the liability protection, private entities would be required to submit information directly to the Department of Homeland Security, which could then share the information with other federal agencies as necessary to address the threat. Additionally, CISA would direct the federal government to share classified and unclassified information with the private sector.
CISA also includes several provisions to protect privacy, such as requiring that companies sharing information remove all personally identifiable data (e.g. names, addresses, and Social Security numbers). The Attorney General would be directed to write procedures to limit government use of cyber information received to “appropriate cyber purposes” and ensure that privacy protections are in place. A full synopsis from the Senate Committee Chair and co-sponsor of CISA, Dianne Feinstein (D-CA), is available here.
Adequate privacy protections have been a continuing sticking point for successful cybersecurity information sharing legislation. The Cyber Intelligence Sharing and Protection Act (CISPA) – the information sharing bill counterpart in the House of Representatives – faced strong privacy objections from civil liberties and public interest groups. When CISPA passed the House in 2013, the White House threated to veto the bill unless it included additional privacy protections.
Even with CISA’s added protections, many privacy groups oppose the bill. Similar to CISPA, these groups remain anxious that the legislation could encourage a company, such as Google, to turn over huge amounts of emails or other private data to the government in the name of cybersecurity. The groups fear that the National Security Agency and other government agencies could gain access to even more personal information through this legislation. Moreover, because CISA provides liability protections to companies sharing information, individuals would have little recourse in the event of abuse.
Whether CISA becomes law in 2014 will depend not only on how quickly it can pass a floor vote but also how easily the Senate bill can be reconciled with CISPA, the House counterpart passed last year. Though CISA passed the Senate committee with bi-partisan support, Senate Democrats are already wavering on support due to concerns of insufficient privacy protections. If CISA manages to pass the Senate, there is a chance the House and Senate can agree to a reconciled bill. Representative Mike Rogers (R., Mich.), chairman of the House Intelligence Committee and co-sponsor of CISPA, stated publicly that the committees were close to agreement on harmonizing their respective cyber threat information-sharing bills, and had narrowed down their difference to a few, discrete issues. However, with less than 15 legislative days before the August recess and all eyes focused on the upcoming mid-term elections in November, if this cybersecurity legislation has any hope of moving forward Congress will need to do something it rarely does: act quickly.
How the cupcake crumbles: the once-successful venture of an NYLS grad and her husband needs a rescue.
* “Duke University is not and never has been in the business of producing, marketing, distributing, or selling alcohol.” Some bros down in Durham disagree. [ABA Journal]
* If you see something… sue someone? The ACLU and Asian American civil rights groups, together with some help from Bingham McCutchen, have filed a legal challenge to the Suspicious Activity Reporting database. [New York Times]
* Congrats to David Hashmall, the incoming chair of Goodwin Procter — and congrats to outgoing chair Regina Pisa, the first woman ever to lead an Am Law 100 firm, on her long and successful leadership. [American Lawyer]
* A group of investors might end up devouring Crumbs, the cupcake-store chain founded by New York Law School grad Mia Bauer that suddenly shut down this week amid talk of a bankruptcy filing. [Wall Street Journal (sub. req.)]
Ed note: This piece is from the official blog for the telecom practice of Kelley Drye & Warren LLP.
In the wake of a number of high-profile cybersecurity events — from the Heartbleed bug to the Target breach — cybersecurity has become a red-hot issue in Washington, D.C. Earlier this month, in a major address delivered at the American Enterprise Institute, Federal Communications Commission Chairman Tom Wheeler announced a new cybersecurity initiative to create a “new paradigm for cyber readiness” in the communications sector.
As described by Wheeler, the FCC’s cybersecurity initiative will be led by the private sector, with the Commission serving as a monitor and backstop in the event that the market-led approach fails. In particular, the FCC will “identify public goals, work with the affected stakeholders in the communications industry to achieve those goals, and let that experience inform whether there is any need for next steps.” Chairman Wheeler stressed that the new paradigm must be dynamic, more than simply new rules, and the Commission will rely on innovation by the private sector.
The Commission’s efforts will be guided by four principles, including commitments to:
1. preserving the qualities that have made the Internet an unprecedented platform for innovation and free expression, so that Internet freedom and openness is not sacrificed in the name of enhanced security;
2. privacy, i.e., enabling personal control of one’s own data and networks;
3. cross-sector coordination, e.g., among regulatory agencies; and
4. the multi-stakeholder approach to global Internet governance and an opposition to any efforts by international groups to impose Internet regulations that could restrict the free flow of information in the name of security.
Expect FCC staff actions to be organized around the following elements:
(1) Information Sharing and Situational Awareness. The Commission is looking into legal and practical barriers to effective sharing of information about cyber threats and vulnerabilities in the communications space. Specifically, the Chairman noted that “companies large and small within the Communications communications sector must implement privacy-protective mechanisms to report cyber threats to each other, and, where necessary, to government authorities.” Moreover, where a cyberattack causes degradations of service or outages, the Chairman stated that “the FCC and communications providers must develop efficient methods to communicate and address th[e] risks.” To that end, the Chairman noted that the FCC is actively engaged with private sector Information Sharing and Analysis Organizations, and with other federal agencies, to improve threat information sharing and situational awareness.
(2) Cybersecurity Risk Management and Best Practices. Noting the work of the Communications Security, Reliability and Interoperability Council (CSRIC) in developing voluntary cybersecurity standards, Chairman Wheeler called upon communications providers to work with the Commission to set the course for years to come regarding how companies in that sector communicate and manage risk internally, with their customers and business partners, and with the government. In addition, the Commission will be seeking information to measure the implementation and impact of the CSRIC standards.
(3) Investment in Innovation and Professional Development. Chairman Wheeler has asked the FCC Technological Advisory Council (“TAC”) to explore specific opportunities where “R&D activity beyond a single company might result in positive cybersecurity benefit for the entire industry.” Specifically, the FCC will “identify incentives, impediments, and opportunities for security innovations in the market for communications hardware, firmware and software.” Further, the FCC will work with NIST and academia to “understand the current state of professional standard and accountability,” as well as “where the FCC might positively contribute toward further professionalization of the workforce.”
This initiative could have significant impact on telecommunications and technology companies. Cybersecurity already is a top priority for CSRIC. A new working group was established within CSRIC and work is underway to update the industry’s cybersecurity best practices. The primary goal is to align the industry’s cybersecurity activities with the National Institute of Standards and Technology’s (NIST) Cybersecurity Framework Version 1.0 released in February 2014. Industry members are encouraged to participate in the process. Based on the current timeline, CSRIC will vote to approve the new best practices in March 2015.
Kelley Drye & Warren’s attorneys recently presented a webinar discussing cybersecurity updates and considerations for the telecommunications and technology industries. To listen to a recording of The Cybersecurity Review webinar, please click here.
Jiminy jillickers! ATL editors are going all over the place over the next month or so. Or at least all over the Eastern Seaboard. If we aren’t heading to your neck of the woods on these trips, never fear, we may hit you up on the next time around. We’ve already hit up Houston, Chicago, Seattle, San Francisco, and Los Angeles in the past year.
Kinney Recruiting’sEvan Jowers is currently in Hong Kong for client meetings and still has a few slots available through October 22. Evan will also be in Hong Kong November 14 to December 15. Further, Robert Kinney has been in Frankfurt and Munich this week and is available for meetings with our Germany based readers.
One of our key law firm clients has referred us to one of their important clients in the US, Europe and China – a leading global technology supplier for the auto industry – in order to handle their search for a new Asia General Counsel and Asia Chief Compliance Officer.
Kinney is exclusively handling this in-house search.
This position will have a lot of responsibility and include supervision of eight attorneys underneath them in the Asia in-house team. The new hire will report directly to the global general counsel and global chief compliance officer, who is based in the US. The new hire’s ability to make judgement calls is going to be as important as their technical skill set background.
The position is based in Shanghai and will deal with the company’s operations all over Asia and also in India, including frequent acquisitions in the region.
It is expected that the new hire will come from a top US firm’s Shanghai, Beijing or Hong Kong offices, currently in a top flight corporate practice at the senior associate, counsel or partner level. Of course, the candidate can be currently in a relevant in-house role.
The JOBS Act created new tools for companies to publicly advertise securities deals online. As a result, thousands of new deals have hit the market and hundreds of millions in capital has been raised, spurring a wealth of new business development opportunities for attorneys.
Fund deals, startup capital raises, PIPE deals and loan syndicates are just a handful of the transactions benefiting from the JOBS Act. InvestorID FirmTM is a platform designed to help attorneys equip their clients with the workflow, marketing and compliance tools to publicly solicit a securities offering online. By providing clients with the tools to painlessly navigate the regulatory landscape of general solicitation, InvestorID FirmTM helps attorneys add value above just legal services.
The Jumpstart Our Business Startups Act (JOBS Act) went into effect in 2013 and permits Regulation D offerings of securities to be advertised publicly. This means that funds and companies can now use social media, emails and web sites to market transactions to new “accredited” investors.
However, with these new powers come new pain points. InvestorID FirmTM provides a secure, fully hosted, cloud-based platform with a breadth of tools for your clients, including: