Steven Rushing

Want to sound erudite? Begin your next memo or brief with: "The Federal Circuit’s decision that the PTO is not subject to notice-and-comment requirements when issuing rules pursuant to 35 U.S.C. § 2(b)(2) conflicts with this Court’s interpretive precedents applying the anti-superfluity cannon." What's this really about? Whether you have to tell the U.S. Patent and Trademark Office (PTO) your home address if you apply for a trademark as an individual and your physical office address as a business. I have bumped into this issue directly in the past year. Even if the Supreme Court agrees to hear the case, I expect there is a low likelihood that the PTO will change its requirements even if it is required to take notice and comment before the rulemaking because the PTO need only show that its rule is not arbitrary and capricious. The PTO will argue that checking domicile helps prevent fraud and that's a good enough (non-arbitrary and non-capricious) reason. So what's the solution for those who want to protect their physical address from the PTO? A giant trademark owning entity that licenses the trademarks out to the "real" trademark owners. It will be just like MERS for mortgages. You read it here first....

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After the new AMLAW 200 rankings were announced a month or so ago we now get the hotly-anticipated VAULT100 rankings, which are if anything even more relevant. These are the firms that associates in their peer / competitor firms rate as the best 100 law firms in the country, based on research, gut feelings, gossip, feedback etc. Do you agree with these rankings? Should money talk (as it's clearly a significant contributor at the top)?

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'New C-suite roles must be integrated, not balkanized'  Many points raised in Forbes's recent article on Big Law hiring resonate with the findings in our Q3 Technology & Transformation Executive Hiring Analysis. We’re seeing a clear upward trend in hiring at the C-level as law firms drive transformation to stay competitive. We’re in the final stages of completing our report, If you’d like a copy, please register via the link in the comments.

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BREAKING NEWS: Judge Tigar grants plaintiffs in Doe 1 v. Github leave to file interlocutory appeal to Ninth Circuit on whether DMCA CMI claims under Section 1202 are limited to identical copies of the plaintiffs works. Opinion in link below: https://lnkd.in/gXYsEvYY Part of the reason: "To this Court’s knowledge no court of appeal has ruled on this issue, and district courts have reached differing conclusions. See, e.g., Anderson v. Stability AI Ltd., No. 23-cv-00201-WHO, 2024 WL 3823234, at *8 (N.D. Cal. Aug. 12, 2024) (finding DMCA Section 1202(b) claims have an identicality requirement); Beijing Meishe Network Tech. Co., Ltd., v. TikTok Inc., No. 23-cv-06012-SI, 2024 WL 3522196, at *9 (N.D. Cal. July 23, 2024) (declining to dismiss on identicality grounds); ADR Int’l Ltd. v. Inst. for Supply Mgmt. Inc., 667 F. Supp. 3d 411, 427 (S.D. Tex. 2023) (“Based on the plain wording of the statute, the Court is not persuaded that the DMCA includes an ‘identical copy’ requirement.”); Kirk Kara Corp v. W. Stone & Metal Corp., No. CV 20-1931-DMG (Ex), 2020 WL 5991503 (C.D. Cal. Aug. 14, 2020) (adopting an “identicality” standard); Oracle Int’l Corp. v. Rimini St., Inc., No. 2:14-cv-01699-MMD-DJA, 2023 WL 4706127, at *82 (D. Nev. July 24, 2023) (“The Court also rejects Rimini’s argument . . . that a work that removes copyright management information must be an exact copy of the original work. This construction of the DMCA would weaken the statute’s intended protections for copy right holders.”). “One of the best indications that there are substantial grounds for disagreement on a question of law is that other courts have, in fact, disagreed.” Rollins v. Dignity Health, No. 13-cv-01450-TEH, 2014 WL 6693891, at *3 (N.D. Cal. Nov. 26, 2014). Given this split in authority the Court finds there are substantial grounds for disagreement on this issue."

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While this may seem like just another case against the SEC, Bitnomial, with its clean track record, seems to be in a unique position to advocate for a court ruling here that could have significant impacts to the industry. A favorable outcome would not only be another court bolstering Judge Torres' ruling regarding secondary sales, but potentially could extend far beyond that. Should the court rule in favor of Bitnomial, this could establish a precedent that clarifies regulatory jurisdiction within the digital asset derivative space. Such a ruling would confirm that the SEC lacks authority over crypto-based derivatives and, more crucially, affirm that the underlying assets are not classified as securities. Will be interesting to see how this one plays out.

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Excellent article by Esquire Deposition Solutions, LLC highlighting the practical uses of deposition summaries and introduction of the #AI summary tool and benefits. Message me here or [email protected] for a demo of our Intelligent Summary+!

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🚀 Big Law’s Game-Changing Strategies: Clawbacks & Make-Whole Agreements 🚀 Did you know that some lateral partners are entering new firms with compensation packages exceeding $20 million? As competition for top talent heats up, Big Law firms are using advanced strategies like clawback provisions and make-whole agreements to secure and retain their most valuable rainmakers. Here's what you need to know to stay ahead: 🔍 Clawback Provisions: With competition intensifying, firms like Kirkland & Ellis are now using clawback clauses that reclaim compensation if partners leave within a set timeframe. A move that can deter lateral movement, this tactic aims to protect firms’ investments. But for partners, it adds complexity when considering a lateral transition. How can you navigate these new hurdles? 💡 Make-Whole Agreements: On the flip side, many firms are sweetening the deal for incoming lateral partners. Make-whole agreements ensure that new partners don't lose out on deferred compensation or equity left behind at their previous firms. These agreements can include: Sign-On Bonuses: Immediate financial incentives. Guaranteed Compensation: Assurances of a steady income. Deferred Compensation Coverage: Bridging the financial gap from prior firms. 📈 The Stakes Are Rising: As highlighted in a recent Law.com article, "Comp Offers for Lateral Partners Now Show Big Law’s Buying Power" (September 2024), firms are offering packages that soar up to $20 million. This is a clear signal that compensation structures are becoming more complex—and more lucrative. 🔍 What Does This Mean for You? For Partners: If you’re considering a lateral move, it’s more important than ever to understand how clawbacks or make-whole agreements will affect your compensation. For Firms: Are your offers competitive enough to attract high-value lateral partners? These agreements can make or break your hiring strategy. 📞 Let’s Talk: Have you encountered these provisions? Are you looking to optimize your next career move? Reach out to me for a strategy session on navigating these evolving trends. #LegalRecruiting #BigLaw #LateralHiring #PartnerCompensation #ClawbackProvisions #MakeWholeAgreements #PrivateEquityLaw #M&ALaw #LegalTrends #LawFirmStrategy #TalentAcquisition #Lawyers #LawFirmLeaders #LateralPartners

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The DOJ’s bankruptcy watchdog says Kirkland has a conflict that should bar it from representing a genetic test maker as bankruptcy counsel.   Plus, Winston & Strawn settled a rare copyright case against the firm over a court filing; Smartmatic resolved its defamation lawsuit against One America News; and a former DraftKings executive testifying in court denied trade-secret theft claims.   We’re betting it’ll be another busy legal news day. Let’s jump in.   Subscribe to The Daily Docket for the latest legal news: https://reut.rs/4aBvwvO   #legal #legalnews #legalindustry #lawfirms #lawyers #lawschools #lawstudents #judiciary #IP #copyright #bankruptcy

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When Overreach Meets Accountability: 🗽SEC's Dealer Rule Vacated on the Day Gensler Announces Resignation🫡 🔄In a poetic twist of fate, Gary Gensler's SEC tenure ends as the courts deliver a decisive critique of his regulatory overreach. On November 21, 2024, Judge Reed O'Connor of the Northern District of Texas vacated the SEC's controversial Dealer Rule, a decision that reverberates across crypto and financial industries. On the same day, Gensler announced he would step down as SEC Chair effective January 2025. 🛡The Dealer Rule: A Step Too Far The SEC’s Dealer Rule attempted to redefine “dealer” under the Exchange Act, targeting digital asset markets and traders who provided liquidity. The rule’s broad language threatened to sweep DeFi participants—those using liquidity pools, decentralized exchanges, and smart contracts—into the same category as traditional market dealers. But Judge O'Connor’s ruling was a stark rebuke. The Court noted: 🧐The rule erased a century-old distinction between “traders” and “dealers,” violating the Exchange Act’s intent. The SEC overstepped its statutory authority, with Judge O’Connor emphasizing, “The Rule as it currently stands de facto removes the distinction between ‘trader’ and ‘dealer’ as they have commonly been defined for nearly 100 years.” The Impact on DeFi and Innovation DeFi protocols operate without traditional intermediaries, enabling peer-to-peer liquidity through open-source software and smart contracts. The SEC’s attempt to regulate such automated systems as “dealers” was seen as a direct assault on innovation. 😴A Reflection on Gensler’s Leadership Gary Gensler’s tenure at the SEC has been marked by aggressive enforcement, particularly targeting crypto markets. While his policies aimed to increase investor protections, many argue they stifled innovation and lacked clarity. 🫥👮The SEC’s repeated losses in courts—Ripple, Grayscale, and now the Dealer Rule—underscore the growing judicial pushback against regulatory overreach. Gensler’s resignation opens the door for a leadership shift, with potential candidates like Dan Gallagher and Paul Atkins signaling a more industry-friendly regulatory approach. 🧭What’s Next? This ruling is not just a legal victory; it’s a pivotal moment for how regulation adapts to innovation. With Gensler’s departure, the SEC faces a choice: continue on a path of contentious enforcement or work towards a balanced framework that supports both investor protections and technological growth. 🤞🗿For the blockchain industry, this is a reminder that vigilance and advocacy are essential. The Court’s decision reinforces the importance of adhering to legislative intent, especially as regulators grapple with the challenges of emerging technologies. 📢As one of the plaintiffs stated: "This is just the first domino. Innovation must prevail over overreach." #CryptoRegulation #DeFi #SEC #GaryGensler #Blockchain #Innovation

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Our latest blog post is live, sharing important tips on navigating family law matters in Colorado. Whether you are seeking representation or just want to stay informed, click the link to read more: https://wix.to/VXKwHZW ~ #newblogpost #FamilyLaw #ColoradoLaw #LegalConsultation #LegalRepresentation #FamilyMatters #FamilyLawyer #EmpowerYourself

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The United States Court of Appeals 5th Circuit just announced it will not adopt a proposed rule specifically requiring disclosure and other requirements for attorneys who use AI as part of their practice. Upon reflection, and based upon a lot of negative feedback on the proposed rule, they recognized that existing rules already cover the same situations. Specifically, attorneys are enforceably required to stand behind the truthfulness and accuracy of court filings. However, the court admonished litigants and lawyers alike that “I used AI” will not be an acceptable excuse for violating existing rules! Here is the formal notice from the court: https://lnkd.in/gJWyEyxg For color, here also are some recent news articles on this announcement: * Reuters: https://lnkd.in/gJmjWSqv * Bloomberg Law: https://lnkd.in/gaVqCkHi And, since I have it at hand, for your convenience, here is the full statement by the court: “The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.” Personally, I think this court got it right. To the extent existing rules cover situations arising from use (or misuse) or AI, it is a good idea to apply those rules first before seeking to make more rules. In the event of demonstrable failures of existing rules, then perhaps it will be more practical to craft new rules to address the gaps that have been revealed. But it is, apparently, a very good idea to sound the alarm far and wide, loud and clear: sometimes generative AI provides incorrect or otherwise unsuitable information and it remains the duty of the attorney (among others) to carefully review and stand behind any work they pass forward. That concludes my public service announcement for today :-)

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I was interested to see the results of The American Lawyer's Midlevel Associates Survey. Surveys are always engaging and sort of provocative- after all, some firms win and some lose. Surveys can also be sort of flat, though, if they lack proper context. This article by Dan Roe provides that context. It is a spot on and insightful view into the minds and experiences of these midlevel associates. Dan's perspective can also be helpful to partners and firm leaders in thinking about how to keep these midlevel associates happy.

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I am really happy to see an uptick in discussions around Lateral Integration. Lateral hiring is a significant investment that is plagued with unacceptably low success rates—industry wide. I have been working on this problem a lot over the past few months. While each firm has a unique set of challenges, there are a few things that I find help universally: - Prioritizing industry, client and product teams over practice groups in the integration process. This enables your lateral share their experience in a focused way, to address specific issues they can help with and to identify the roles/titles of the people who would hire them. Practice groups play an important role, but let’s face it, they offer a very broad audience that includes, and I’ll say the unspeakable, a lot of internal competitors. - Supporting actionable, hyper-targeted messaging and presentations for each significant audience, internal and external. So, instead of, “I joined the firm because they are investing in their energy practice,” try, “my move is going to benefit you, client, because they have deep ties with key players in the Houston energy market where you are expanding. We’d love for you to join us and a few of our clients at the xx conference this year.”  This requires some business development acumen and resource, but it will pay dividends and your lateral will greatly appreciate the assist. - Creating and tracking a short-term business plan that converts strategy into actionable tactics. This is obvious, but even as we all know that “get 2-3 new deals by Q4” is not a good goal, too many business plans are still not specific enough to be actionable or trackable. And, tracking and follow-up items often fall to the back burner. Here again, some business development resource is required, especially if you want to conserve the non-billable time of your new lateral. Fortunately, there are some technology solutions that can help, and if you pair a coordinator with the more senior BD resource who helps with the plan, that professional could shoulder the lion’s share of the tracking and reminding/nagging. Does your firm’s integration plan have elements that your lateral’s find particularly helpful? If you are working through your firm’s lateral integration process and want to talk about elements that work, I’d love to have a conversation. #lawfirms #businessdevelopment #laterals #recruiting

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Get insight into the aftermath of the Francis Scott Key Bridge collapse! Legal experts weigh in on potential coverage disputes and subrogation claims. Don't miss Partner Michael Savett's analysis!   •   •   •   https://lnkd.in/ebtRFGJD #InsuranceLaw #LegalInsights #Subrogation #ButlerLegal

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This is how litigators, solo practitioners, associates and paralegals across the U.S. are saving hundreds, even thousands, of hours of trial prep using AI. Our best-in-class software summarizes deposition transcripts in minutes, with 100% accurate page/line citations while extracting key admissions and insights. Watch the video to see how easy the process is. Try a free summary at: www.smartdepo.law

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This is such a great read for those who are thinking of changing your career path. For me, I loved the practice of law; I was tired of the business part of it (making clients, keeping books, being ops, etc.). I was addicted to the money and the ‘WINS’. I was burned out; riding super high or low on any given moment. My break up with the practice of law took 5 solid years. Now I get to use my legal skills and leave the rest behind. #career #careerchoices #choices #breakup

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