Pittsburgh-based Biglaw firm K&L Gates has been steadily losing attorneys all year long, reports Above the Law, citing ALM Intelligence data.

The data show that “from December 2018 through October 2019, the firm lost a total of 96 partners, while only picking up 32 in that timeframe. That net decrease represents 7.9 percent of the total partnership. And across all attorneys, the firm is net down 56 lawyers.”

During that period the firm hired more associates than it lost — 164 hires and 154 departures.

Read the Above the Law article.

Bloomberg Law reports that at least a dozen in-house lawyers were among the 2,400 layoffs last week at the parent of co-working giant WeWork.

“The WeWork layoffs followed an aborted $3.5 billion initial public offering, the departure of former CEO Adam Neumann, and a tentative $9.5 billion bailout by Japan’s SoftBank Group, which has temporarily saved the faltering company,” writes Bloomberg’s Brian Baxter.

WeWork lawyers in New York and San Francisco, along with some in outlying offices, were let go, one of the in-house lawyers told Bloomberg.

Read the Bloomberg Law article.

The New York Post reports that a New York man who was acquitted of rape has won $280,000 against his former attorney for branding him an “a-hole” and a “dangerous jerk” online.

Citing published reporting, the Post writes that Donald Glassman was awarded the payout against Robert Feldman after a 10-day trial ruled that the lawyer committed legal malpractice and defamed him.

In an online posting, Feldman called his former client a “tragedy,” “total a-hole,” “dangerous jerk” and a “scary person” with “severe emotional and mental problems” including Asperger’s syndrome.

Read the  NY Post article.

A recent New York case sheds some light on the use of contract clauses that cover cardinal changes in construction, according to an alert by Henry L. Goldberg for Moritt Hock & Hamroff.

The case involves a $5,320,000 subcontract for masonry on a project. In a dispute that arose during the project, the subcontractor alleged that the general contractor had interfered with its work and wrongfully deleted an excessive portion of the subcontractor’s work in material breach of the subcontract. In other words, in its defense it asserted the “cardinal change doctrine.”

“The standards for finding a cardinal change are imprecise; courts have wide discretion,” writes Goldberg. “What, in fact, is the ‘essential identify’ and ‘main purpose’ of your contract? Here, the court failed to find the subcontractor in breach for walking off the job.”

Read the article.

Stroock senior counsel Joel Cohen — a veteran prosecutor, white-collar defense lawyer and author on legal ethics topics — considers what it means to take an oath as well as the implications of adhering to one in his new book: “I Swear: The Meaning of an Oath.”

The book, available from Vandeplas 2019, asks the reader to consider the consequences of varied oaths, along with the respective oath-takers’ duties under diverse circumstances.

The book includes 11 profiles of a wide-ranging group of Americans who took oaths of personal intent and professional requirement, including former Central Intelligence Agency Director Richard Helms; Dr. Samuel Mudd; and former President Franklin Delano Roosevelt.

“The book is intended to make us think about the oaths we ourselves take alongside those taken by members of professional societies,” said Cohen. “In this particular time and place in our country, it is important to understand the impact oaths have on society and consider whether the sanctity of one declaration surpasses another.”

Cohen is a white-collar criminal lawyer and has spent the last 30 years of his career at Stroock. Prior to joining the firm, Cohen served as a prosecutor in the New York State Special Prosecutor’s Office and as an assistant attorney-in-charge with the U.S. Justice Department’s Organized Crime & Racketeering Section. Cohen is a regular contributor to the New York Law Journal, The Hill and Law & Crime, among other publications.

“I Swear” is available on Vandeplas, Amazon and Barnes and Noble.

Greensfelder, Hemker & Gale, P.C. announced that Dawn M. Johnson, an officer and a leader of the firm’s Franchising & Distribution industry group, has earned the Certified Franchise Executive (CFE) designation from the International Franchise Association (IFA) Institute of Certified Franchise Executives.

In a release, the firm said the CFE designation “exemplifies a commitment and passion toward franchising and the franchising community,” according to the IFA. The designation requires a high level of participation in initial and ongoing educational programs intended to provide in-depth insights into every aspect of franchising. The IFA is the world’s oldest and largest organization representing franchising worldwide. IFA works through its government relations and public policy, media relations and educational programs to protect, enhance and promote franchising and franchise establishments.

A longtime member of the IFA, Johnson has represented national and international franchisors for more than 20 years. She focuses her practice on all aspects of the dealer, distributor and franchise relationship, including termination and non-renewal, claims under state and federal relationship laws, and claims such as breach of contract, fraud, tortious interference, antitrust pricing, and trademark infringement. Among her clients, she has represented oil refiners in numerous state and federal courts. Johnson also handles a range of general business litigation disputes for clients. In addition, she is co-leader of Greensfelder’s Appellate practice.

Smart lawyers find ways to get multiple uses out of their best marketing efforts by recycling their content in a variety of other formats, writes Amy Boardman Hunt for Muse Communications.

“Recycling your best content – particularly ‘evergreen’ content that’s not tied to a breaking news story, such as a court ruling or current event – can save you time and effort and give you valuable material that you can use for months or even years,” she explains.

She gives examples of ways to turn existing content into multiple formats and how to produce content that has lasting value.

Read the article.

Venable LLP announced that Stacie E. Tobin, a partner in the Commercial Litigation Practice, has been named partner-in-charge of the Baltimore office.

The firm said Tobin has litigation experience spanning a diverse range of matters and has tried dozens of cases to verdict while serving as first-chair counsel or co-counsel before federal and state courts across the United States. She represents companies, manufacturers, and financial services clients as part of her commercial litigation practice. She has also counseled heavy equipment manufacturers, automobile and watercraft manufacturers, pharmaceutical companies, and tobacco companies in product liability disputes.

Tobin leads Venable’s Electronic Discovery Task Force and the women’s affinity group for the Maryland offices; she also serves on several Venable committees related to attorney recruitment, promotion, and compensation. She has served on the boards of numerous nonprofit and civic organizations, including Special Olympics Maryland, Live Baltimore, Executive Alliance, and the Greater Baltimore Cultural Alliance. She is a 2016 graduate of the GBC LEADERship program. She has been recognized by Best Lawyers for Commercial Litigation (2013-2020); Best Lawyers Business Edition’s Women in Law for Commercial Litigation (2017-2019); The Daily Record in its Maryland’s Top 100 Women list (2019), and by the Girl Scouts of Central Maryland for its Distinguished Women’s Award (2018).

Bradley Arant Boult Cummings LLP announced that Robert Fordhas joined the firm’s Houston office as a partner in the Litigation Practice Group. The Houston office has added 13 new attorneys since April of this year.

The 2020 edition of U.S. News – Best Lawyers “Best Law Firms” recently awarded Bradley Tier 1 national rankings for four practice areas (Commercial Litigation, Construction Law, Litigation – Construction, and Mass Tort Litigation / Class Action – Defendants) and Tier 1 metropolitan rankings across 70 practice areas. In addition, “Best Law Firms” named Bradley the nation’s “Law Firm of the Year” for Construction Law.

In a release, the firm said Ford represents plaintiffs and defendants and has handled all facets of trial as lead counsel in all manner of high-stakes civil matters. These include complex commercial litigation fiduciary disputes, business torts, personal injury suits, product liability claims, construction litigation, and legal malpractice actions. He has a particular focus in cases involving Chapter 95 of Texas’ Civil Practices & Remedies Code (which limits commercial premises owners’ liability for injuries and deaths sustained by independent contractors), trade secrets cases, and motions and appeals under the Texas Citizens’ Participation Act (TCPA), Texas’s anti-SLAPP statute.

Licensed in Texas and Louisiana, Ford practices in state and federal courts throughout Texas and the Gulf Coast. He is a Fellow of the bar foundations of Texas, Houston and Louisiana; the Texas Bar College; and the Trial Lawyer Honorary Society of the Litigation Counsel of America. Prior to joining Bradley, he was a partner at Fogler, Brar, Ford, O’Neil & Gray LLP.

Ford received his J.D. (with honors) from the University of Texas School of Law and his dual Bachelor of Arts (in philosophy and political science) from Loyola University New Orleans.

Sarah M. Anderson has joined Freeborn & Peters LLP’s Tampa office as an associate in the Litigation Practice Group and as a member of the Insurance and Reinsurance Industry Team.

Prior to joining Freeborn, Anderson served as a law clerk to Judge James D. Whittemore and Judge Timothy J. Corrigan in the U.S. District Court for the Middle District of Florida. She also served as the tobacco judicial law clerk in the Middle District of Florida and was responsible for the district’s docket of Engle progeny cases against the Big Tobacco companies over injuries suffered over the health effects of smoking.

Anderson received her J.D. (summa cum laude) from Nova Southeastern University, Shepard Broad Law Center and her Bachelor of Science from Cornell University.

Hogan Lovells announced today that Raj Panasar will be joining the firm as a capital markets partner in the Corporate practice in the London office. Panasar will be joining from Cleary Gottlieb on Jan. 1, 2020.

In a release, the firm said Panasar has experience representing multiple issuers, including major emerging market and blue chip international companies, on their IPOs and London listings, as well as representing investment banks as underwriters of high-profile capital markets transactions.

He has also led Cleary Gottlieb’s pro bono efforts in Europe, according to the release.

With esports revenues and viewership mounting, industry insiders believe the market is poised for continued growth as investors increasingly jump in, revenue sources evolve and technology rapidly advances. That’s according to the second annual Esports Survey of more than 200 executives conducted by law firm Foley & Lardner LLP and The Esports Observer.

The report can be downloaded.

This surge in esports investment is expected to come primarily from private equity and venture capital firms and from traditional professional sports teams and leagues, athletes and celebrities. Advertising and sponsorships are expected to drive the greatest portion of the industry’s revenue growth, followed by in-game purchases and media rights. Still, esports insiders worry about cheating and match fixing, are considering whether a small group of game developers has too much control and are maintaining a focus on compliance amid legal risks surrounding intellectual property rights, data protection and players’ rights.

The 2019 Esports Survey was completed by 204 professionals, primarily from esports and traditional professional sports teams and leagues, media companies and agencies.

Strong Investment Signs for Esports

Nearly half of respondents (47%) anticipate increased investment in esports from private equity and venture capital firms over the next year. That’s up from 39% in the 2018 survey, an indication that the sector is mature enough to draw an array of investors looking for big paydays.

“The increased involvement of private equity and venture capital firms is a clear sign that traditional investors believe in the longevity of the space and have made the financial judgment that esports is now part of the culture,” said Bobby Sharma, special adviser to Foley’s Sports & Entertainment Group. “Investors are betting on the opportunity here given the massive scale of the global competitive video gaming audience.”

47% of respondents also said traditional professional sports teams and leagues, athletes and celebrities would increase their investments. While that is down from the 57% that said the same in the 2018 survey, that should not be viewed as a sign of bearishness, but as an acknowledgement of the big bets these groups have already made. In fact, when respondents who believe the traditional sports apparatus (teams, leagues, owners, athletes, celebrities) will increase their investment in esports over the next 12 months were asked the extent to which they would do so, 88% said to a significant or moderate degree.

“We continue to see significant interest from traditional professional sports in investing in esports, particularly hard assets such as venue development, streaming and technology,” said Lisa Glahn, vice chair of Foley’s Construction Practice and member of the Sports & Entertainment Group. “Given the labor issues facing teams and the lack of clarity around their business model, the teams, leagues, owners and athletes who have been on the sidelines until now are often focused on deploying their funds in areas they perceive as more stable and less risky, like facility and venue construction.”

Threats to the Industry

While growth in esports investment has been sizeable and impressive, risks abound in the maturing market. When asked what poses a threat to esports’ legitimacy and growth, more than two-thirds of respondents (68%) pointed to cheating and match fixing. These concerns are driven primarily by inadequate fraud detection (47%), vulnerability to technology hacks (36%), susceptibility of players to bribes (36%) and the lack of a governing body (33%).

There are also worries about the grip a small number of game developers has on esports, with just 5% of respondents saying they do not perceive this as a problem. Respondents pointed to a variety of potential negative impacts of this dynamic, mainly publishers controlling access to data and Application Programming Interfaces (APIs) and publishers restricting team participation in tournaments or leagues, which were each identified by 47% of respondents. This was followed closely by the potential to halt startup development if publishers enforce IP rights (45%).

Similar to the 2018 survey, most respondents (70%) said their organizations prioritize keeping up to date on legal issues in esports and ensuring that they comply with laws and regulations. But there was an interesting change regarding specific legal issues that respondents are worried about. 61% of respondents said that IP rights and licensing issues is the top risk, up from 50% in 2018. Likewise, respondents are more worried about contracts that do not provide adequate player protections, up to 54% from 43%.

“The issue of player rights and the potential for increased union organizing are among the most prominent legal issues currently facing esports,” said Jon Israel, co-chair of Foley’s Sports & Entertainment Group. “As players have become more sophisticated in asserting their rights and ensuring fair contracts, there has been greater attention to such issues as individual endorsements and team sponsorship deals, health insurance and restrictions placed on players.”

What’s Driving Revenue Growth?

As it did in the 2018 survey, advertising and sponsorships topped the list of areas that respondents most expect to drive esports revenue growth over the next year, with 51% selecting it as the most promising area in 2019, up from 41%.

“Many stakeholders in esports, such as teams, personalities and tournament brands, create their primary value in the currency of attention, brand awareness and reach, rather than in products and services. Consequently, advertising and sponsorships offer significant opportunities to generate revenues,” said Tobias Seck, business analyst at The Esports Observer. “In addition, as big brands continue to enter esports by engaging in sponsorships, it becomes easier for new brands to move into the space by relying on the experience and insights gained by early corporate entrants.”

Media rights, which ranked second among areas expected to drive revenue growth in last year’s survey, moved to the third spot in 2019 as in-game purchases and revenue moved up to the second-ranked spot.

“While this year’s survey saw a slight drop in the amount of esports revenue growth that respondents think will be driven by media rights in the near-term, this area is likely to be among the best long-term plays,” said Kevin Schulz, co-chair of Foley’s Sports & Entertainment Group. “As game publishers work to expand the reach of their games and as traditional television networks and distributors seek to tap lucrative advertising revenue around gaming leagues, interest in media rights deals will only continue to grow.”

Respondents expect increased M&A activity across several categories of the esports industry, including streaming and broadcasting (62%), events and tournaments (60%) and franchised teams (59%).

“The wide range of areas in which respondents expect a rise in esports M&A activity indicates a fluid, Wild Wild West-type industry,” said Michael Wall, of counsel in Foley’s Sports & Entertainment Group. “Esports is growing rapidly, led by interest from various types of investors and both endemic and nonendemic brands. As the industry continues to mature and stabilize, we’d expect to see a decrease in M&A volume.”

Ryan Fayhee has been identified as one of the 25 most respected sanctions lawyers in Washington, D.C. by Global Investigations Review (GIR).

The firm said GIR surveyed dozens of practitioners and reviewed publicly available information to discern which individuals are working on the most significant cases. The list was trimmed down to 25 DC-based practitioners at the top of the field, with a maximum of one lawyer per firm.

Fayhee leads the Sanctions, Export Controls & Anti-Money Laundering practice group at Hughes Hubbard and is a former official and senior prosecutor with the U.S. Justice Department (DOJ). Fayhee’s practice focuses on government and congressional investigations, crisis management, cross-border compliance, corporate governance, and white collar criminal defense.

Forbes reports that the national average annual wage of an lawyer is $144,230, according to the Bureau of Labor Statistics’ Occupational Outlook Handbook, which is not far from being three-times the average annual salary for all occupations, $51,960.

But Forbes contributor Andrew DePietro explains that average salary is for the U.S. overall, which hides significant differences depending on geography, from state to state.

For example, the average lawyer salary in California, $171,550, is about double the salary in Montana, which is $88,600.

The report lists average salaries for all states.

Read the article.

The mean scaled score for the July 2019 multistate bar exam increased this year, according to the National Conference of Bar Examiners and reported in the ABA Journal.

“But for a small number of schools found to be out of compliance with an ABA accreditation admissions standard, some have concerns that even with bar pass rate improvements, they still may not meet a new standard that requires pass rates of at least 75% for graduates who took a bar exam in the past two years,” writes the Journal‘s Stephanie Francis Ward.

Read the ABA Journal article.

Image by Steve Jurvetson

CNBC reports that Tesla CEO Elon Musk is headed to court to answer a defamation lawsuit filed by a British rescue diver he called a “pedo guy.”

U.S. District Judge Stephen Wilson in Los Angeles ordered the jury trial to begin Dec. 3.

The plaintiff is Vernon Unsworth, a diver who helped with the rescue of a boys soccer team in Thailand.

The dispute between Musk and Unsworth erupted after Unsworth criticized Musk’s efforts to send a submarine to help rescue the team from a cave in Thailand where they were trapped, according to CNBC’s Annie Palmer. In response, Musk called Unsworth a “pedo guy” on Twitter and a “child rapist” in an email to a reporter.

Read the CNBC article.

A Texas court of appeals ruled that “oil or gas” is not limited to “crude petroleum,” but includes refined petroleum products gasoline and diesel, according to Charles Sartain, writing in Gray Reed’s Energy & the Law.

The case involves a pipeline easement that allows a production company to transport oil or gas across the plaintiff’s property. The property owner contended that “oil and gas” referred to crude petroleum, but not refined products.

The court researched definitions of “oil” and “gas” and found that refined petroleum products “fell within the commonly accepted meaning of the terms oil or gas at the easement’s approximate date.”

Read the article.

The outcome of a suit involving a contract between a general contractor and a subcontractor hinged on an apparently missing apostrophe in the agreement, writes Keith Paul Bishop in the Allen Matkins California Corporate & Securities Law blog.

The provision reads: “Ten percent (10%) of Subcontractor’s contract amount shall be withheld and will be released 35 days after completion of subcontractors work.”

The subcontractor abandoned the job, but later argued that the reference to “subcontractors” (no apostrophe) must mean any subcontractor, not just itself.  Thus, it was entitled to payment of the retention when the replacement subcontractor finished the job, the original sub argued.

Read the article.

Peter M. Gillon, writing in Pillsbury’s Policyholder Pulse blog, discusses an important decision in the world of professional liability (including D&O and E&O policies).

He explains that the Seventh Circuit recently held that a “contractual liability” exclusion—i.e., an exclusion for claims “based upon or arising out of … breach of contract”—when inserted in a professional liability policy, that is, a policy intended to insure professionals for services they perform under contract, renders the coverage “illusory.”

He adds that the court concluded that the exclusion as written eliminated all coverage under this professional liability policy for the very kinds of claims the policyholder sought to insure—on its face, not just as applied to the particular claim.

Read the article.

The U.S. Court of Appeals for the Sixth Circuit held that employers cannot by contract shorten the statutory limitations period (i.e. the time period within which a claim must be brought) under Title VII, writes Fiona W. Ong for Shawe Rosenthal’s E-Updates.

Ong explains:

“In Logan v. MGM Grand Detroit Casino, the employee signed a job application containing a provision that established a six-month limitations period for bringing any lawsuit against the employer and that waived any applicable statutes of limitation. The employee, 216 days after her resignation, filed a charge of discrimination with the EEOC, and after she received a notice of right to sue, brought suit in federal court. The employer moved to dismiss her lawsuit because it was not timely filed within the contractual six-month period.”

Addressing the issue for the first time, the court found  that contractual limitation in Title VII cases to be unenforceable.

Read the article.