Law And More

"Kelli Smith v Merck & Co" - Sanford Heisler law firm takes on another major sex-discrimination lawsuit

Are the human-resources systems in BigPharma rigged against female employees?  That could just be.  Sanford Heisler law firm, which has made its brandname in representing plaintiffs in sex-discrimination lawsuits, is currently representing Kelli Smith in her lawsuit against Merck & Company.  In 2010, Sanford Heisler won a $250 million verdict for female employees at Novartis, which was later reduced to $175 million in a settlement.  In 2007, the firm also represented female employees at GE, which the company settled.

As Reuters reports, "Kelli Smith v. Merck & Co" is both an individual and possibly a class action lawsuit.  It alleges that Merck systematically discriminates against employees who are female.  Smith contends that in 2010 she was demoted after becoming pregnant and taking maternity leave.  Following that her performance reviews were negative. The suit is for more than a $100 million. 

Given the difficulty class actions have been having getting certification - e.g. "Dukes v Wal-Mart" - it will be interesting to follow if this one makes it there.  However, the reality that Sanford Heisler is in the loop on this one should lead us to anticipate that the defendant might seek to settle - early in the game.  The suit was filed last Thursday.

Malpractice Lawsuits Are Sexy: But good care can be compelling legal topic

As an ambitious legal blogger, I know that describing a malpractice medical suit will get me traffic.  That entertains in two ways.  One is showcasing alleged human (or robotic) error.  The other pull force is the cheering for the alleged victim and wishing them a great damage award.

But, after so many national tragedies, there is a growing audience for stories about caring.  First, the lack of caring lead-in. When I got on Medicare I was thrilled. But not for long.  I called medical office after medical office in the New Haven, Connecticut metro area.  The only one which "was taking new patients" was where I would never be seen by a doctor in two years.  Those who did examine and "counsel" me were smug know-it-alls, including smirks.  Medicine a la 1950s.

Then, I checked out the Hartford Metro area, only an hour's ride away.  The Hartford Healthcare Medical Group welcomed me into the system.  I was even going to be seen by a doctor - Judy Chiu.  The medical director is Dr. Spencer Erman. 

Shock.  Dr. Chiu listened.  She provided research to back up my contention that I might not genetically take after the side of my family killed off young by cancer.  After all, here I was in my late 60s, fat but quite healthy.  Dr. Chiu also presented options to me for traditional tests and treatment.  Another shock.  The eating program we discussed is knocking off some of the weight.  Almost unbearable lightness of being.  I could be here blogging at age 150, and model-skinny.

Let's help our healthcare providers through these changing times in medicine.  Maybe lawyers, both plaintiff and defense, can educate them how to be self-protective when it comes to the possibility of malpractice suits.  Caring might be the most important best practice.

One for Preet Bharara: What did Bloomberg News reporters know, when did they know it, and did they trade on information

Uneasy lies the head that wears the crown. 

That's an observation from a play by William Shakespeare.  The royal figures, in terms of wealth and power, associated with Bloomberg terminal and Bloomberg News probably didn't sleep so hot last night. 

As we all know, News Corp's the NEW YORK POST broke the story that Bloomberg News reporters were observing traders' activity on the terminals. Now that the shock is over, we look at implications.  Over in his office, U.S. Attorney Preet Bharara and his team must be considering the issue: What did those Bloomberg News reporters know, when did they know it, did they trade on any of that information on their own or someone else's account, and did gains result?

If there is cause to investigate that issue, Bharara can bag prey bigger than would be SAC hedge fund founder Steve Cohen for alleged insider trading.  This could open a whole new phase in Bharara's career. 

NEWSWEEK Purchase a Mistake, Says Barry Diller - Should he have Tina Brown intern at Abovethelaw.com?

IAC head Barry Diller not only said it was a mistake buying print NEWSWEEK, overseen by Tina Brown.  He added that he didn't have great expectations for its digital compression into the Daily Beast.  If he wants to save the media property he may have a shot at that by sending Brown to Abovethelaw.com (ATL) as an intern.

Clearly, Brown, who uses the anachronistic term "zeitgeist," can't get with the zeitgeist of a digital era. For example, the articles for Daily Beast have too many ideas, as in the olden days, not one idea that is played with in brilliant and provocative ways.

At ATL, David, Elie, Staci, and Joe have down cold the minimalism of driving one message forward until readers are persuaded or resist so aggressively that the piece goes viral, then results in behavior change.  I have a hunch that it was Elie who is responsible for shaking Millennials out of denial that law school had a lousy ROI.  His rhetorical crusade was relentless and it worked, finally.  Applications are down.  

Also, ATL doesn't need the big bucks to operate which burdens Daily Beast.  It has a volunteer army of tipsters who in almost cult-like fashion pony up smug or abrasive memos from law firms.  And, thanks to the new rules on aligning the monthly repayment of law school student loans to monthly income the writers aren't going to bellyache too much about making a lot more.

What could Intern Tina pick up at ATL?  Plenty, including:

Keep it simple.  If the attention span of those who scored in the 99 percentile of the LSATs is low, lower is that of the demographics for Daily Beast.

Throw high earnestness, not money, into coverage.  Human beings are suckers for a wrong that needs to be made right, not sophistication created with money.

Show you're having fun.  Everyone wants to be a part, in some way, of ATL because it seems a throwback to the heady days of the ad business in the 1960s but without the undertow of sadness of "Mad Men." 

Be accessible.  Staci told me it was good to hear from me.   Would the folks at Daily Beast make me feel like a pest?

Who should supervise Intern Tina?  Joe has the ideal temperament for that. In return? Intern Tina can pay off all the ATL members student loans.

 

Gray Economy: Liberals don't cry for us poor

The tenements where we lived in downtown Jersey City, New Jersey buzzed with economic activity. My uncles sold pink plastic umbrellas and shoes they swiped from the docks. The yenta across the street earned commissions on getting your brother out of prison. 

Officially, though, most of us were so poor that we qualified for free clinic visits at the Jersey City Medical Center and two weeks at the  "fresh air" camp in Butler, NJ run by do-gooders. But we had no trouble ponying up tuition for Catholic school, frilly communion dresses, cash for new cars, lavish weddings, and eventually single-family homes in the suburbs. 

The reason was the underground or gray economy. In THE NEW YORKER,  James Surowiecki estimates it's currently worth about $2 trillion, none of which is taxed or figures in employment figures.

Liberals, don't cry for the poor. We always manage to manage.  And, if the officially jobless Millennials, including recent law graduates, get a hang of how to get work in the gray economy they will not turn out to be the lost generation. The trick is understanding how the networks underground operate and conforming.  Unlike those based on Ivy League credentials, measurable income, and conspicuous consumption, gray networks function via instinct, especially about who to trust.  For example, it's well known the snitch winds up in the ditch.

JDs could quickly get up to speed on earning a good buck doing whatever if they move to marginal urban areas.  Everything in terms of services and products is for sale and nothing has a fixed price. Satisfaction is guaranteed with baseball bats.  What the government loses in tax revenues it could gain in eliminating functions like consumer protection performed now by Richard Cordray.

Legal Sector Recruiting: Time to outsource function to BigData

No surprise, the staid legal sector, despite its slow growth and reported internal unhappiness at all levels, is still recruiting the old-fashioned way.  For new associates, law firms go through the familar ritual of screening for summer interns, some of who will get hired.  There is also the trip in-person to law schools to interview those at the top of the class, on law review, and with the look of what will fit in with the organizational culture. For laterals, it's word of mouth, through head hunters, or by newly hired partners dragging along a few buddies. And although it's 6 years since The Crash of the legal industry all those recruits have not turned around, never mind transformed BigLaw, MidLaw, or SmallLaw.

Clearly, the risk is not taking the risk of outsourcing the whole function to BigData.  Today's THE NEW YORK TIMES, in its business section, has yet another one of those articles on how the private sector is turning to algorithms to locate talent which might have been bypassed by traditional recruiting practices.  This new field is called "work-force science."  The approaches tend to remove the conventional assumptions about what makes for a successful hire.

"Bias often takes forms that people may not recognize," says the article's author Matt Richtel.  And it's people, often with enough power held long enough to make them smug, who make the hiring decisions in law firms.  What if those people were removed from the value equation?  Skadden could wind up hiring a woman at the middle of her class in a non-elite law school.  Work-force science could pick up on her ability to notice details no one else has and present them persuasively to the powers-that-be as she had in her third-year pro bono clinic work.  In addition, she seems a natural rain maker who sold used Toyotas to get through college.

Human bias tends to be increased by fear.  Since the legal sector is full of that the time may have come for adopting world-force science.

Richard Cordray: BigData kind of guy

What does Richard Cordray, head of the Consumer Financial Protection Bureau, intend to find out by gathering financial data about 10 million consumers in America? 

According to THE BLOG OF THE LEGAL TIMES, Cordray told the U.S. Senate Committee on Banking, Housing and Urban Affairs the purpose is to analyze consumer financial behavior with the mission of preventing harm.  Republican member of the Committee Mike Johanns objected on the grounds of invasion of privacy.

However, others might cheer Cordray for seeking insight through analyzing BigData, just as the private-sector movers and shakers are.  Through BigData, for example, alternates could be developed for FICO ratings to determine credit-worthiness.  Some social entrepreneurs are focusing on extracting from mobile phone usage patterns to create formulas for identifying from them which applicants for loans would be likely to repay them.

Had Cordray not put his agency's nose into BigData he could be vilified as just not being with the times.

MD AG Douglas Gansler: Brilliant initiative on privacy, social networks, and youth

It is Maryland Attorney General and head of the National Association of Attorneys General (NAAG) Douglas Gansler who initiated the agreement with Facebook for more privacy protections for youth.

TECH CRUNCH reports that the two have formed an alliance "to provide teens and their parents more information and tools to manage their profiles on Facebook and beyond."  As of this time, 19 state AGs have bought in.

The AGs will be issuing public service announcements for their particular states. Those will include a video and tip sheet about ensuring privacy.

Gansler has chosen the right issue at the right time.  His brand could be golden.

Remorse: Why is that still factoring into crime and punishment?

The miscreant is supposed to show remorse, right?  That's the scripting for crime and punishment in the U.S. legal system.  However, remorse, even if it were "sincere," which it rarely is, is a mere feeling. It might even be a fleeting one.  That feeling likely will not go too far in protecting society from future antisocial behavior.

Shouldn't the justice system require a plan of how the miscreant is determined to change behavior - and skip right past demanding a demonstration of remorse? 

The 12-steps of Alcoholics Anonymous, the only available approach which achieves sobriety, are based on taking action.  Among the actions taken are to fix the wreckage of the past and then to stop behaving in the ways which got the drunks into the pickles they are in.  Those range from DUIs to robberies.

When I was a probation in Detroit, there was plenty of remorse in the court room. Then outside on the courthouse steps there was just as much laughter about "fooling the man."

Rosa Parks: Her mindset was legal

"Beginning with Scottsboro - and lasting throughout her life - Parks focused on the mistreatment of African Americans under the law." - Jeanne Theoharis in new biography "The Rebellious Life of Mrs. Rosa Parks"

That iconic defiant act of refusing to go to the back of the bus has entered civil rights mythology as a bit of accidental courage by a nobody working class woman Rosa Parks.  The reality, Theoharis documents in this history of Parks, is that that incident represented a natural choice for a long-time leader in civil rights.  And her approach to change was through taking on the law.

For example, when a black woman had been raped by several white men and the police did nothing, Parks traveled 100 miles to take what in those days was probably the nearest thing to a deposition.  When she was doing that the police kept entering the woman's home threatening both of them.

Parks' legal point of view was partly shaped by her husband Raymond who risked a lot more than his wife did on the bus by championing the cause of the eight Scottsboro Boys, ages 12 to 19, who were sentenced to death for allegedly raping two white women on a train.  He was tireless in his crusade. 

Parks wouldn't have married him had she not also been ready to defy the status quo.  Actually the seeds for this had been growing in her since she was a very young girl and was not comfortable with discrimination.  At one point her mother had to arrange that she live with different set of relatives so that she wouldn't have to walk to school through a white neighborhood where she was known to be ready to push back.

Lawyers and law students who might have become cynical about the law will be absolutely inspired about legal measures which unhinged a very embedded social and economic system.