(NY Times) This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.
For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.
The frenzy has even pushed the nation’s top firms, a tradition-bound coterie, into discussing how to reform the recruitment process with an earnestness that would have been unthinkable just years ago.
In a stunning turn of events on what could be one of the largest Qui Tam cases in US history, the First Circuit Federal Appeals Court released it's opinion today reinstating a part of the whistleblower claim against Ortho Biotech, the Johnson & Johnson subsidiary, regarding the alleged kick back scheme for it's drug Procrit.
This case was spearheaded by Attorney Jan Schlichtmann on behalf of the relators Duxbury and MacClellan and when the trial court dismissed the claim, the appeal was filed and argued in mid 2008 and today's decision affirmed part of the decision but cleared the way for the Duxbury claim on kick backs and rebating tied to the off label marketing and use of Procrit in oncology clinics and hospitals.
In this exclusive interview, Duxbury and McClellan's attorney Jan Schlichtmann discusses the courts ruling, shares his thoughts on the elements that were affirmed as well as the next steps in this long dormant but now front page Whistle Blower case regarding Procrit and the marketing of it's off label use. As long time readers of this page will recall this was also featured in a Wall Street Journal profile on the case at about the time of the original trial in 2007 and while many had given the case up for dead, the Appeals Court has done a comprehensive analysis of what the bar is to filing a Whistle Blower claim and brought in a real stunner on what could be a massive potential claim against Ortho Biotech.
BOSTON - A jury in a high-profile federal copyright infringement trial here ordered a Boston University graduate student to pay $675,000 to several record companies for illegally downloading and distributing 30 of their songs.
Joel Tenenbaum appeared stoic as the jury announced that each of the 30 counts of willful infringement would cost him $22,500. The tab— while steep — is far less than the $4.5 million that the companies could have received had the jury imposed the maximum per-song damages allowed under law. Copyright law allows for damages of $750 to $30,000 for each copyright infringement and up to $150,000 for each willful infringement.
Tenenbaum said he was happy the verdict wasn’t in the millions and “not displeased with the jury given how the trial went.”
Tenenbaum’s attorney, Harvard Law School professor Charles Nesson, whose case has faced several setbacks in recent weeks, closed his eyes just before the jury read the verdict. Nesson said he expects to appeal the judgment – and contends that U.S. District Judge Nancy Gertner’s ruling that Tenenbaum couldn't cite fair use, or the legal use of copyrighted works under certain circumstances, is “vulnerable.” That ruling was issued the morning jury selection began.
“It’s not a fair verdict because the jury never got to consider the fairness issue,” Nesson said. “We had a pretty darn good argument.”
Nesson himself tangled with plaintiffs lawyers after the jury left the room Friday. The lawyers — Matthew Oppenheim of the Oppenheim Group in Potomac, Md. and Timothy Reynolds of Denver-based Holme Roberts & Owen — sought sanctions against Nesson for posting deposition excerpts on the Internet.
Nesson said the plaintiffs’ side offered to drop the sanctions motion if he destroyed the materials at issue. But he said he wanted to use at least some of the materials for teaching purposes. Oppenheim told Gertner that he and Reynolds didn’t want to be a part of Nesson’s classroom materials or to be a party to any Internet distribution of the information. Gertner asked Nesson to send her a letter by Aug. 10 outlining his plans for the material.
Throughout closing arguments on Friday, Nesson, tried to convince the jury to keep damages low. He argued that Tenenbaum was “addicted” to downloading music, and that the college student was only taking advantage of available technology. He was not, Nesson said, attempting to deprive the record companies of profits. Declining profits at record companies, Nesson said, was caused by their inability to keep up with technological change.
“Progress happens, it’s not Joel who is responsible,” Nesson said. “There’s no reason for [the industry] to put their calamity off on kids.”
Near the end of three hours of testimony on July 30, Tenebaum admitted liability for downloading and distributing the songs at issue in the case. After Tenenbaum’s testimony, Gertner ruled that the jury had only to decide whether infringement was willful and how much Tenenbaum should pay in damages.
In a statement for the plaintiffs’ side, the RIAA said the organization “appreciates that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work...We only wish he had done so sooner rather than lie about his illegal behavior.”
The District of Massachusetts case, Capitol Records Inc. v. Alaujan, is one of many that record companies and the Recording Industry Association of America have filed against college students for making illegal Internet music downloads. (The companies involved in the case at this point are: Arista Records LLC, Sony BMG Music Entertainment, Warner Bros. Records Inc., and UMG Recordings Inc.)
Most have settled, but Vivendi-owned The Universal Music Group took home a $1.92 million verdict in June when a Minnesota jury decided Jammie Thomas-Rasset should pay $80,000 for each of 24 songs she posted on a Web site for others to download.
The final day of trial focused on damages after an earlier order by Gertner ruling for the plaintiffs on the issues of copyright ownership and liability.
On Friday, Nesson called ethnomusicologist Wayne Marshall, a Mellon Fellow at the Massachusetts Institute of Technology, as his sole witness to demonstrate the current ease of buying an MP3, or digital song, from Amazon.com for 99 cents.
Gertner directed Nesson to do a trial run of Marshall’s testimony without the jury because the plaintiff’s team expressed concerns about the late addition of Marshall as a witness.
Later, during his closing argument, Nesson said Tenenbaum “didn’t have the option of getting an MP3 song in a sleek and easy way” as late as August 2004, when the record companies captured images of 800 songs Tenenbaum infringed.
Gertner sustained a few of the numerous objections the plaintiffs lobbed at Nesson during his closing, including his advice that the jury had “the power not to fill in the boxes” on the jury form, which asks jurors to list damages for copyright infringement of each of the 30 songs.
Nesson said the form looks like “a kind of school exam,” but he said, “justice is in the bottom line, the total number.”
“If that bottom line is just and appropriate, then you’re doing your job,” Nesson said. Nesson also said that because Tenenbaum was distributing music downloaded from others as opposed to posting the first copy, he wasn’t responsible for the companies’ lost revenue. “[As for the] value of the copyright to Joel, I submit it’s 99 cents [for each song],” Nesson said. “That’s what he has to pay for it if he purchases it from Amazon.”
The plaintiffs' attorney, Reynolds, painted Tenenbaum as a “hard-core, habitual, long-term infringer.”
Reynolds also disputed Nesson’s arguments that Tenenbaum’s sharing simply passed along other people’s downloads. He said Tenenbaum downloaded 600 to 5,000 songs onto a Goucher College shared network while he was an undergraduate and before the Baltimore-based school shut down online song sharing.
He also noted that Tenenbaum continued making illegal downloads for at least a year-and-a-half after the record companies notified him he’d been caught. Illegal downloading has caused lost sales, significant layoffs and harmed the record companies’ ability to develop new products, he said.
“The need for deterrence here is great,” said Reynolds.
Scott Drake Interviews Harvard Law professor Charles Nesson.
Scott Drake speaks with RIAA plaintiff lawyer Matthew Oppenheim
Sales rose to an annual rate of 384,000 in June, the Commerce Department reported, up 11 percent from May. * Housing inventory fell to 8.8 months of supply, compared with 9.6 months a year ago. * The rise in sales and the declining inventory is another indication the housing sector, which led the United States into the current recession, may have hit bottom and is starting to rebound. * Despite the encouraging data, the median sale price for a newhome fell to $206,200, down 5.8 percent of the previous month, and down 12 percent from a year ago.
Real Estate and Financial expert James Ponte in Scottsdale is interviewd by LBN host Scott Drake. They discuss the current state of the housing market which Ponte says probably won't start recovering until mid 2011.
The U.S. Supreme Court took a major step toward ending a 17-year legal battle Thursday, saying lower courts made a mistake by focusing too much on forcing Arizona to spend more money to help students who haven't yet learned to speak, read or write English.
Scott Drake interviews Luis Bartolomei a partner with Reyes, Bartolomei and Browne in Dallas.
(Arizona Daily Star) The U./S. Supreme Court ruled Arizona lawmakers don't have to provide more funds to teach English to students statewide.
The justices accepted the arguments by attorneys for state School Superintendent Tom Horne that it was improper for a federal judge in Tucson to issue a statewide injunction without evidence that school districts throughout Arizona were violating the Equal Education Opportunity Act. That law requires states to ensure that all students have an opportunity to learn, an opportunity which specifically requires states to take "appropriate action'' to help students become proficient in English.
Justice Samuel Alito, writing the majority decision, said the only thing that is relevant is whether the Nogales Unified School District -- the district at issue when the lawsuit was filed in 1992 -- is now doing a better job of teaching English to its students.
The ruling most immediately absolves the state of funding an additional $40.6 million to schools. But it also opens the door to lawmakers actually being able to decrease some of the extra dollars they have given schools in the past to help students classified as "English language learners.''
In fact, Alito said that U.S. District Court Judge Raner Collins overstepped his authority in all of his mandates to the Legislature to provide more money, several of which were enacted under the threat of monetary penalties, orders that were repeatedly upheld by the 9th Circuit Court of Appeals.
Monday, September 14, 2009 at 04:39PM 
(NY Times) This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.
