I figured my first Above the Law post should be something aimed squarely at those who generally read this blog: American lawyers. I also figured I should lead with what I do best and that is scaring the heck out of people.
So I am going to write about four common and egregious mistakes my law firm’s China lawyers often see American domestic lawyers make when representing their clients in doing business with or in China, along with a very brief analysis of what causes American lawyers to make each sort of mistake.
1. Many years ago, a lawyer in the Midwest called us to discuss his client’s desire to form a company in China. This lawyer did not even tell us that his client was in the room. The lawyer asked us the minimum capital the Chinese government would likely require his client put into a Chinese bank to be able to start a business (a WFOE) in China. Based on the nature and size of the business, we estimated $6 to $8 million. The lawyer asked us to confirm that a portion of the required $6 to $8 million could come from factory equipment not cash, and we assured him that it could. At that point, he said, “good,” because his client had already purchased $5 million in equipment and shipped it to China.
We then had to tell him those equipment purchases could not count because they had not been previously designated as going to the WFOE. The lawyer then complained about how his client could not afford to come up with another $5 million and how China was putting form over substance. To which we could say little more than, “yeah”…
* Dewey know who Zachary Warren is? Per this failed firm’s insiders, he seems to be a “man of mystery” who apparently worked in the “bowels of the bureaucracy” that ultimately led to D&L’s demise. [Am Law Daily]
* “You can cross-examine the witness. You can’t cross examine an email.” Defense of the Dewey defendants may be tough when it’s time for trial — and you can bet your ass there’ll be a trial. [New York Law Journal]
* Fear not, friends, because Patton Boggs has found a way to weather the storm. It’s the same way most barely buoyant firms stay afloat: more layoffs. Expect more on this news later today. [National Law Journal]
* Paul Ceglia, the man who claims he owns half of Facebook’s fortunes, can’t toss his criminal charges. Sometimes wheeling and dealing with allegedly faux contracts will land you in the clink. [Bloomberg]
* Because no father wants to see his daughter become “tabloid fodder”: Rachel Canning, the New Jersey schoolgirl who sued her parents, is being “savaged” by the public. Aww, poor little Millennial. [Daily Record]
19 Recordings, the entity that enters into record deals with the recording artists who win American Idol, has sued Sony Music for allegedly stealing millions of dollars after underpaying the company in terms of royalties. The 33-page complaint, available after the jump, opens with a list of American Idol success stories and then documents in detail how Sony Music reportedly stole millions from them.
According to the suit, Sony misclassified streaming music sales to pay 19 Recordings less than what the company was owed. Another claim is that Sony was supposed to obtain approval from 19 Recordings after a certain ceiling cost for advertising was reached, but Sony failed to seek that approval before spending 19 Recordings’ royalties without its consent. The remaining allegations similarly claimed underpayment for royalties, improper passing of expenses on 19 Recordings, not allowing 19 Recordings to audit all of Sony’s books, and claims related to royalties for individual artists.
Interestingly, 19 Recordings filed in federal court. 19 Recordings is the little guy in this action — with the backing of name brand stars — and it seems that the company might fare better in state court. The suit comes just after Season 13 of the show premiered on Fox. The suit seeks $7 million in damages and $3 million in prejudgment interest.
With the snow melting in Sochi, “On Remand” looks back to one of the greatest moments in Olympic history. Tomorrow is the 34th anniversary of the “Miracle on Ice.”
In February 1980, the XIII Olympic Winter Games were underway in Lake Placid, New York. But a little-known group of hockey players had been practicing together for months, skating themselves to exhaustion learning coach Herb Brooks’s new, fast, and grueling style of play. Most of the players on Team USA were barely old enough to order a beer, and hardly any had played hockey professionally. In a few months, several would be playing in the NHL. But on February 22, they were underdogs against a Soviet team that had won the gold in every Olympic contest since 1956 — except for 1960, when the Americans stood atop the podium. A week before the 1980 games started, the Soviets had trounced the Americans, 10-3, in an exhibition game.
“Unless the ice melts” or some team “performs a miracle,” a sports writer quipped, the Soviets would win the gold medal again in 1980. And, for most of the U.S.S.R. versus U.S. game, that prediction appeared accurate. But with 10 minutes left in the game, Mike Eruzione, Team USA’s captain, scored a goal from thirty feet, putting the Americans up 4-3. They never relinquished the lead. As the clock ran out, ABC broadcaster Al Michaels delivered his now iconic play-by-play…
* Randy Levine, president of the New York Yankees, has left Akin Gump’s dugout. He hopes to hit it out of the park and slide into his new home at Jackson Lewis. Please, no more baseball references. [Am Law Daily]
* A lawyer won’t have to pay an ex-law student $1M after making a hyperbolic challenge in a TV interview. Better luck reading the Leonard v. Pepsico case next time, pal. [Volokh Conspiracy / Washington Post]
* Protip: when you’ve been recommended for suspension for your “contemptuous attitude,” bragging that one of the judges who disciplined you thinks you’re “probably the best DUI lawyer” isn’t smart. [Santa Barbara Independent]
* If you watch The Walking Dead, you’ve probably wondered if all of the killing was legal — because you’re a lawyer, and you can’t enjoy anything anymore. Here’s your answer, from a UC Hastings Law prof. [GQ]
* If you’d like your chickens to live a life of luxury before you eat them and their eggs, then you’re going to love this law in California. If not, you can move to Missouri. See Elie squawk about it here. [ATL Redline]
* Ian Whittle, a recent George Mason Law grad, took a break from watching the saddest Super Bowl ever to save a little girl from drowning in a pond. Check out the news coverage, after the jump. [CBS 6 WTVR]
Let’s play the game where we spot unenforceable contractual clauses and laugh at people who are afraid of modernity.
Actually, let’s play the game where we marvel at how good it must be to be a university president, even at a small school that most people have never heard of. Then we can imagine all the personal freedoms we’d willingly give up if we could in order to have such a life. Because I can think of a number of unmarried women who would cede control of their bedroom to the state in order to have such a sweet job….
Welcome to Above the Law’s newest feature, Fun With Fine Print. This occasional column will chronicle especially clever or awful examples of legalese, fine print, disclaimers, disclosures, and the like. Our readers who spend so much time toiling over contractual language, drafting it beforehand or litigating it after the fact, will hopefully appreciate — and contribute to — this feature.
We’ll start things off with an example of infamous fine print. Earlier this year, Subway got torpedoed over its regrettable response to a customer complaint. After Australian teenager Matt Corby complained that his “footlong” Subway sub was a mere eleven inches, Subway invoked the following fine print: “With regards to the size of the bread and calling it a footlong, ‘SUBWAY FOOTLONG’ is a registered trademark as a descriptive name for the sub sold in Subway® Restaurants and not intended to be a measurement of length.” Personally speaking, I think eleven inches is more than enough — but based on the uproar and litigation, maybe I’m in the minority.
Now let’s look at legalese worth celebrating, for its cleverness and its clarity. It also comes from a fast-food provider….
Each year, Corporate Counsel compiles a list of the law firms that Fortune 100 companies use as outside counsel. This year, to change things up a bit, it seems like the list has been expanded to cover the entire Fortune 500. From Apple to Yahoo, and every billion-dollar company in between, these corporate clients expect nothing short of the best in terms of legal representation when dealing with high-stakes litigation and deals. If you’re looking to line your firm’s pockets, you better head to the RFP line when these companies seek lawyers.
Up until last year, only the most prominent Biglaw firms (like Cleary, Davis Polk, Cravath, and Simpson Thacher) topped the list of those that had the pleasure of doing business with the country’s biggest companies. Things changed rapidly, however, when Big Business tried to cash in on deals for legal services. The firms that were willing to cave to the pressure of providing alternative fee arrangements won in a big way, and the rest were left in the dust.
Have these prestigious firms changed their ways? Is Corporate America again willing to open its fat wallet for them? Let’s find out…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.
Whether you’re fresh off the bar exam or hitting your stride after hanging a shingle a few years ago, one thing’s for certain: independent attorneys who start a solo or small-law practice live with a certain amount of stress.
Non-attorneys would think the stress comes from preparing for a big trial, deposing a hostile witness, or crafting the perfect contract for a picky client.
But that’s nothing compared to the constant, nagging, real-life kind, the kind you get from the day-to-day grind of being a law-abiding attorney.
Connecticut plaintiffs-side boutique litigation firm (12 lawyers) seeks full-time associate with 2-4 years litigation experience, top tier undergraduate and law school education. Journal or clerkship experience a plus; highest ethical standards and strong work ethic required. Familiarity with Connecticut state court legal practice is preferred, but not required.
The firm handles sophisticated, high-end cases for plaintiffs, including individuals and businesses with significant claims in a wide array of matters. Our cases often have important public policy implications, and are litigated in state and federal courts throughout Connecticut. Representative areas of practice include medical malpractice, catastrophic personal injury, business torts, deceptive trade practices and other complex commercial litigation, and products liability.
Additional information can be located on our website, at www.sgtlaw.com.