Extreme cold causes widespread court closures in Midwest; one governor says US is ‘getting soft’

Judiciary

Closed sign.

Many courthouses throughout the the Midwest announced closings Wednesday as an arctic blast settled on the region.

Both local and federal courthouses reported closings. The 7th U.S. Circuit Court of Appeals at Chicago announced a Wednesday and Thursday closing, along with courthouses in the Northern District of Illinois.

Also closed were federal courts in the Central District of Illinois, the Eastern District of Wisconsin, the Kalamazoo courthouse in the Western District of Michigan, all but one court in the Eastern District of Michigan, several courts in the Northern District of Indiana, and the Pittsburgh and Erie divisions of the Western District of Pennsylvania.

Many state courts in Chicago and suburban counties were closed, the Chicago Tribune reported, although there were exceptions for bond hearings and juvenile detention hearings in Cook County. Some downstate Illinois towns reported closures (including here and here).

Several state courts also announced closings in Michigan, Wisconsin, Pennsylvania, Indiana and Ohio.

At least one public official thinks some government bodies are overreacting to the weather. Kentucky Gov. Matt Bevin criticized school districts in his state for closing amid wind chills of minus 15, the Washington Post reports. “We’re getting soft,” Bevin said in a radio interview.

But Bevin added that it’s better to err on the side of being safe. “But it does concern me a little bit that in America—on this and any number of other fronts—we’re sending messages to our young people that if life is hard, you can curl up in the fetal position somewhere in a warm place and just wait until it stops being hard,” he said.


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Lax tenure standards may have high costs at elite law schools

Law Schools

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Schools usually apply strict standards for tenure, granting it only to the most talented and productive professors. But that is generally not true at the country’s top 14 law schools, where at least 95 percent of professors hired on the tenure track receive it, according to a paper by three University of Chicago Law School academics published Wednesday.

“This results in unproductive faculty occupying some of the world’s most valuable academic real estate while leaving more productive scholars under-placed and preventing new scholars from breaking into the legal academy,” according to the paper. Titled Rethinking Law School Tenure Standards, the paper was written by Jonathan Masur, a law professor; Adam Chilton, an assistant law professor; and Kyle Rozema, a Wachtell Lipton fellow at the school.

Increasing tenure denials by 10 percentage points would increase the academic impact of a law school’s median professor by more than 50 percent, the authors found. For analysis, the paper relies on an annual list from the Association of American Law Schools of professors at the top 100 schools who received tenure between 1970 and 2007. Rankings are from U.S. News & World Report. Articles written by the professors were pulled from the HeinOnline database, as well as information about citations to the articles.

Out of the 3,931 law professors in the sample, the authors found HeinOnline database pages for 1,720. To verify, research assistants manually searched for the subjects’ websites and curriculum vitae, twice, and if neither piece of information could be found, the law professor was dropped from the sample. Ultimately, the research found 29,694 articles and 1,070,092 citations.

A law professor’s pre-tenure research record made a “fairly accurate” prediction about their post-tenure academic impact and post-tenure outside options, according to the paper. Based on their research, the authors determined that even “modest increases” in tenure standards would be meaningful for increasing a law school’s academic impact, and the costs would be modest.

The paper acknowledges that tenure provides professors with economic security, shields those researching important yet unpopular topics from political pressure, and encourages faculty to hire good professors because they don’t have to worry about a new professor outshining them and eventually pushing them out.

“But tenure also commits a faculty spot to a scholar for decades, which requires millions of dollars in compensation and the corresponding lost opportunity to hire other scholars. And, in protecting faculty from dismissal, it decreases incentives to produce research,” the authors wrote.


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Judge in Yahoo data breach case criticizes ‘unreasonably high’ attorney fees

Attorney Fees

A federal judge in San Jose, California, on Monday refused to approve a class action settlement in litigation over a series of Yahoo data breaches, citing a lack of transparency and the possibility of “unreasonably high” attorney fees.

U.S. District Judge Lucy Koh cited several problems with the proposed settlement, including a failure to adequately disclose the size of the settlement fund and settlement class. The opinion is here.

Koh was considering a settlement agreement that covered the federal multidistrict litigation before her and parallel litigation in California state court. The Recorder, Reuters, Courthouse News Service and Ars Technica have coverage.

The plaintiffs had proposed a $50 million settlement fund, but the proposed notice to class members did not disclose the costs of creditor monitoring services or costs for class notice and settlement administration, Koh said.

The proposed settlement authorizes attorney fees of up to $35 million, to be paid separate and apart from the settlement fund. Because fees don’t come from the fund, an award of less than $35 million would mean the leftover amount would revert to the defendants rather than to the benefit of the class, Koh said.

That wasn’t the only problem Koh had with the fees. Class counsels calculated fees for 143 attorneys from 32 firms, including 24 firms working on the multidistrict case before Koh and eight firms working on the state case. Yet Koh said she had given approval for just five law firms to work on the multidistrict case.

Koh said the scope of class counsels’ work in the federal case “was substantially limited by the parties’ agreement that California law governed and by the small number of counts in the complaint, many with overlapping elements.” In addition, Koh said, “the legal theories involved were not particularly novel.”

Court filings were few, and discovery was limited, Koh said. “Specifically, the court finds that class counsel prepared limited legal filings with numerous overlapping issues, and that class counsel completed limited discovery relative to the scope of the alleged claims,” Koh said. “Moreover, class counsel fails to explain why it took 32 law firms to do the work in this case.”

The proposed attorney fees amount to 40 percent of the total payout, which consists of the fees, the $50 million settlement fund figure, and $2.5 million allotted for attorney costs and expenses, Koh said. That’s much higher than the 25 percent benchmark standard governing her court, she said.

Kohn tallied the court filings by class counsels and summarized the discovery.

Federal court filings by class counsels consisted of a complaint, an amended complaint, opposition to two motions to dismiss, a motion for class certification, and a motion for preliminary settlement approval. Class counsels also prepared four expert reports, took seven Yahoo depositions, and reviewed 9 million pages of discovery.

Class counsels in the state case filed a complaint, opposed a motion to stay, opposed a demurrer, and filed a motion for class certification.

Yahoo has acknowledged that its entire user database was for sale on the dark web in 2016, and Yahoo purchased it using bitcoin. As a result of the hacks, Verizon got a $350 million discount when it purchased Yahoo’s internet business in 2017.


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Gender bias plaintiff takes new tack with state court complaint

Law Firms

gender bias

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A previous plaintiff in a gender bias suit against Ogletree, Deakins, Nash, Smoak & Stewart is taking a new tack in a new lawsuit.

The plaintiff, former sports broadcaster Tracy Warren, has filed a gender bias suit in California state court under the state’s Private Attorneys General Act, report the American Lawyer, Law360 and Bloomberg. The law allows employee lawsuits for violations of the state labor code.

The suit is filed on behalf of Warren and other current and female lawyers at Ogletree who are employed in California.

Warren, a former equity shareholder at Ogletree, is now a Buchalter shareholder.

Warren is also a plaintiff in a previous federal lawsuit that claims Ogletree discriminates against female partners in pay, promotions and opportunities. The suit was originally filed by nonequity shareholder Dawn Knepper, who is also a current Buchalter shareholder. Sanford Heisler Sharp is handling both lawsuits.

Bloomberg points out an important difference between the two lawsuits: Suits under the California law cited in Warren’s suit are not subject to mandatory arbitration. The state law also allows representative actions that are similar to class actions, according to Law360.

Knepper’s federal case has been transferred from San Francisco to Santa Ana, California. Ogletree filed a Jan. 22 motion to compel arbitration that notes a San Francisco judge’s finding that the arbitration agreement applied.

According to the American Lawyer, Warren’s Jan. 23 suit “rehashes many of the claims made against Ogletree in Knepper’s earlier suit.” Her new suit claims that Ogletree fired her in retaliation after she complained about discriminatory policies and practices.

Knepper filed suit in January 2018. That same month, Warren says in her suit, Ogletree authorized its general counsel to conduct a “sham investigation” of her in connection with one of her clients. In reality, the suit alleges, the firm wanted to discredit and fire Warren before she joined Knepper’s suit or sued on her own.

The investigation concerned the client company’s former president and chief operating officer, who had threatened litigation against the company. Warren says she informed the president, who had been fired, that she could not represent her because of ethical constraints, yet the president sent Warren additional details about her complaints against the company.

Warren recommended the former president seek counsel and provided an appropriate referral, the suit says. Warren then provided an analysis to the corporate client’s board of directors and warned of the risk of litigation.

Warren’s description of her conduct has similarities to the allegations in a malpractice suit filed against her and Ogletree in Los Angeles superior court, Law360 points out. The malpractice suit was filed a week before Warren filed her Jan. 23 complaint against Ogletree. A Geragos & Geragos lawyer who filed the malpractice suit confirmed the filing to the ABA Journal.

The malpractice suit, filed by jewelry company Alex and Ani, says Warren was negotiating employment agreements for Alex and Ani while at Ogletree, yet she also represented an Alex and Ani employee whose interests became adverse to the company.

The suit says Warren presented a demand letter for payment to the corporate board on the employee’s behalf.

The demand letter said the company had to pay the former employee by Jan. 15, 2018, according to the malpractice suit. After Alex and Ani complained to Ogletree, the law firm acknowledged the misconduct, and fired Warren, according to the complaint.

Sanford Heisler chairman and co-founder David Sanford, who represents Warren in the suit against Ogletree, provided a statement about the malpractice suit to the Journal. “Based on our review of the documents and the entire situation, we can confirm that our client has not committed malpractice or any unethical conduct,” Sanford said. “Ogletree manufactured a pretext for termination, and now Alex and Ani is capitalizing on that pretext.”

In a statement provided to the Journal, Ogletree said it has a commitment to diversity, and Warren was fired after it received a complaint of “unprofessional and unethical conduct.” Here is the statement:

“Equal opportunity has been a core principle of Ogletree Deakins since the firm’s founding, and we do not tolerate discrimination of any kind—gender or otherwise. We take the allegations very seriously. However, the decision-making process that governs our compensation system is both fair and equitable. In fact, we are proud of our ‘open compensation’ system under which all shareholders in the firm know what every other shareholder earns—and the factors that support those determinations.”

“Ms. Warren was terminated shortly after the firm received a client complaint that she had engaged in unprofessional and unethical conduct. Following an investigation and with the input of outside counsel, Ms. Warren was expelled on a vote of the equity shareholders. We will confidently defend the firm against these claims as we remain steadfast in our commitment to equal opportunity for all. Women comprise more than half of the people in our firm and, over the last five years, the majority of attorneys promoted to shareholder in the firm have been women. Further, women are among our most successful lawyers, serving in leadership positions as members of our board of directors and compensation committee, office managing shareholders, and practice group chairs.”


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Lawyer’s suit says FaceTime bug allowed secret recording of deposition, caused emotional trauma

Privacy Law

A Houston lawyer filed a lawsuit against Apple Inc. on Monday alleging that a FaceTime bug allowed the recording of a private deposition.

The suit by Larry Williams II does not give any details about the recorded deposition, but it says the breach caused “permanent and continuous injuries, pain and suffering and emotional trauma.” The suit also says Williams faces “a diminished capacity for the enjoyment of life.”

The suit, filed in Harris County, Texas, also says the product was unreasonably dangerous. Courthouse News Service, Bloomberg and USA Today have coverage.

Apple disabled group FaceTime and promised a fix on Monday after media reports revealed the bug in Apple iPhones running versions of iOS 12.1.

People who wanted to surreptitiously record audio of another person could call on FaceTime, swipe up to add a person, and then type in their own phone number, USA Today explained. After that, FaceTime automatically answered for the person called and audio recording began. If the person called pressed the power button from the lock screen, video began recording.

A 14-year-old Arizona teen had discovered the bug Jan. 19, but Apple didn’t immediately respond to a warning sent the next day to Apple support by the teen’s mother, lawyer Michele Thompson, the New York Times reported.

When she didn’t hear back, Thompson also emailed and faxed Apple’s security team and posted on Facebook and Twitter. On Jan. 25, Apple’s product security team encouraged Thompson to create a developer account to send a formal bug report.

Williams’ suit seeks damages for negligence, design defect, failure to warn, breach of express and implied warranties, fraudulent and negligent misrepresentation, fraudulent concealment and unjust enrichment.

Williams is represented by Houston lawyer James Mattox III in the lawsuit.


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