When researchers at University of Washington pulled together a clip of a faked speech by President Obama using video segments of the President’s earlier speeches run through artificial intelligence, we watched with a queasy feeling. The combination wasn’t perfect – we could still see some seams and stitches showing – but it was good enough to paint a vision of the future. Soon we would not be able to trust our own eyes and ears.
Now the researchers at University of Washington (who clearly seem intent on ruining our society) have developed the next level of AI visual wizardry – fake people good enough to fool real people. As reported recently in Wired Magazine, the professors embarked on a Turing beauty contest, generating thousands of virtual faces that look like they are alive today, but aren’t.
Using some of the same tech that makes deepfake videos, the Husky professors ran a game for their research subjects called Which Face is Real? In it, subjects were shown a real face and a faked face and asked to choose which was real. “On average, players could identify the reals nearly 60 percent of the time on their first try. The bad news: Even with practice, their performance peaked at around 75 percent accuracy.” Wired observes that the tech will only get better at fooling people “and so will chatbot software that can put false words into fake mouths.”
We should be concerned. As with all digital technologies (and maybe most tech of all types if you look at it a certain way) the first industrial applications we have seen occur in the sex industry. The sex industry has lax rules (if they exist at all) and the basest instincts of humanity find enough participants to make a new tech financially viable. Reported by the BBC, “96% of these videos are of female celebrities having their likenesses swapped into sexually explicit videos – without their knowledge or consent.”
Of course, given the level of mendacity that populism drags in its fetid wake, we should expect to see examples of deepfakes offered on television news soon as additional support of the “alternate facts” ginned up by politicians, or generated to smear an otherwise blameless accuser of (faked) horrible behavior. It is hard to believe that certain corners of the press would be able to resist showing the AI created video.
But, as lawyers, we have an equally valid concern about how this phenomenon plays in court. Clearly, we have rules to authenticate evidence. New Evidence Rule 902(13) allows authentication of records “generated by an electronic process or system that produces an accurate result” if “shown by the certification of a qualified person” in a particular way. But with the testimony of someone who was wrong, fooled or simply lying about the provenance of an AI generated video, the false digital file can be easily introduced as evidence.
Some Courts under the silent witness theory have allowed a video to speak for itself. Either way, courts will need to tighten up authentication rules in the coming days of cheap and easy deepfakes being present everywhere. As every litigator knows, no matter what a judge tells a jury, once a video is seen and heard, its effects can dominate a juror’s mind.
I imagine that a new field of video veracity expertise will arise, as one side tries to prove its opponent’s evidence was a deepfake, and the opponent works to establish its evidence as “straight video.” One of the problems in this space is not just that deepfakes will slip their way into court, damning the innocent and exonerating the guilty, but that the simple existence of deepfakes allows unscrupulous (or zealously protective) lawyers to cast doubt on real, honest, naturally created video. A significant part of that new field of video veracity experts will be employed to cast shade on real evidence – “We know that deepfakes are easy to make and this is clearly one of them.” While real direct video that goes to the heart of a matter is often conclusive in establishing a crime, it can be successfully challenged, even when its message is true. Ask John DeLorean.
So I now place a call to the legal technology community. As the software to make deepfakes continues to improve, please help us develop parallel technology to be able to identify them. Lawyers and litigants need to be able to clearly authenticate genuine video evidence to clearly strike deepfaked video as such. I am certain that somewhere in Langley, Fort Meade, Tel Aviv, Moscow and/or Shanghai both of these technologies are already mastered and being used, but we in the non-intelligence world may not know about them for a decade. We need some civilian/commercial help in wrangling the truth out of this increasingly complex and frightening technology.
The National Football League Players Association (NFLPA) has announced a partnership with the National College Players Association (NCPA) to jointly explore the marketing and licensing of all college athletes and how they can be paid for the use of their name, image and likeness through the NFLPA’s licensing affiliated entity, REP Worldwide.
Seeking to maximize the value of California’s Fair Pay To Play Act, recently signed into law by California Governor Gavin Newsom, which has empowered California student-athletes to seek financial opportunities relating to the marketing of their name, image and likeness beginning in January 2023, NFLPA Executive Director DeMaurice Smith stated, “We are proud to partner with the NCPA and offer the services of REP Worldwide to offer all athletes the same world class service that NFL players receive. For the first time, a legislature has indicated that these students have rights just like everyone else and we support this continuing movement towards fairness. Regarding the NFLPA’s new partnership with the NCPA, Smith added, the new relationship
“will explore opportunities for merchandise, gaming and other officially licensed products. We will also review how recent developments impact television broadcast revenues in pursuit of fairness.”
Ramogi Huma, former UCLA Bruins linebacker and current NCPA Executive Director, commented as well. “I am grateful that college athletes will finally have representation that cares only about fairness for the athletes.” He continued, “We are on the right side of history and invite the NCAA’s commercial partners to join us. It’s time to embrace a new beginning.”
Despite the announcement of the partnership, the potential relationship between these two entities and college athletes is still unclear.
While representatives of the NFLPA and NCPA continue to express their future role as one of “representation,” college athletes as a group are not viewed as employees and are neither unionized nor legally recognized as a collective group. Neither the National Labor Relations Act nor the Fair Labor Standards Act recognizes student-athletes within their definition of employee.
How and if, the NFLPA, Rep Worldwide and the NCPA can represent all college athletes and serve as their collective voice in exploring group marketing opportunities is a question that remains to be answered.
On October 16, 2019, the University of Surrey, United Kingdom, announced that its researchers have partnered with colleagues from France, Germany, and Spain to start working on a new technique to tackle plastic waste. According to the university’s article, this novel technique may revolutionize the recycling industry. The plan is to create engineered microbial communities that will digest two types of plastic polymers — polyethylene terephthalate (PET) and polyurethane (PU) — and transform them into molecules that can be used to develop a more environmentally friendly material called Bio-PU. This more environmentally friendly material is often used as a construction and insulation material.
According to the University of Surrey, current physical or chemical methods to degrade PET and PU are inefficient. Impurities in PET polymers and high energy costs associated with the high temperatures required to break down the material make its degradation very difficult. Similarly, degradation of PU is limited due to the difficulty in breaking down urethane bonds in the material. Given these challenges, University of Surrey Senior Lecturer in synthetic biology Dr. Jose Jimenez highlights that “[m]oving away from the reliance on single use plastics is a positive step; however, the problem of how we deal with current plastic waste still needs to be addressed.” Hence, the project will investigate the ability of microorganisms to digest plastic waste and turn it into a more environmentally friendly material that can be recycled.
Two of the three dominant college textbook publishers – McGraw-Hill Education, Inc. and Cengage Learning Holdings II, Inc – have agreed to merge, creating a virtual duopoly in the college textbook market and setting the stage for a potential antitrust fight with the Antitrust Division of the U.S. Department of Justice. McGraw-Hill and Cengage claim the new company will generate global growth, improve margins, and produce efficiencies that will lead to more affordable education materials for students.
But several student and consumer groups disagree, arguing the merger will lead to decreased competition and higher prices for college textbooks. They also claim the post-merger entity will implement digital strategies (e.g., all-access digital subscriptions) that will: (1) force smaller competitors out of the market; (2) eliminate the secondary textbook market, which provides students a lower cost option for purchasing or renting textbooks; and (3) allow the two dominant publishers to collect and monopolize certain types of student data, including data showing students’ learning styles, students’ understanding of core concepts, students’ need additional assistance, and/or students’ risk of dropping out.
The Scholarly Publishing and Academic Resources Coalition (SPARC) has been one of the loudest critics of the merger. On August 14, 2019, SPARC sent a letter to the DOJ urging it to block the merger, arguing that it will “significantly decrease competition in a market already rife with anti-consumer behavior.”
In its section titled “The Textbook Market is Broken,” SPARC explains that college textbooks are sold in a “captive market” because students are forced to purchase the materials selected by their professors. This system “effectively hands the three major companies who currently dominate the market a blank check to develop expensive materials without regarding the preferences, needs, or financial circumstances of students. The textbook industry’s current state of dysfunction results from years of consolidation, unsustainable practices, and lack of price competition.” SPARC points to textbook pricing as an example of this dysfunction, as prices “have increased 184% over the last two decades — three times the rate of inflation.”
In a separate letter sent to the DOJ at the end of July, U.S. PIRG Education and student leaders from colleges across the country raised similar concerns. Specifically, the students explain they have “directly felt the impacts of skyrocketing textbook prices, further exacerbated by Cengage and McGraw-Hill’s efforts to remove cost-cutting options for students by undermining used book markets,” and that “[t]o maintain profit margins, publishers have put out custom or frequent new editions to make it difficult to find a used book for our classes ….” Citing a rather shocking statistic, the students claimed that “65% of students have skipped buying a book at some point in their college career because of cost despite 94% of them knowing it would hurt their grade.”
The students also identified several specific harms caused by “innovative” digital models employed in the textbook industry:
The publishers issue expiring access codes to paid online platforms that students must also use to submit homework and test answers, destroying the used book market;
Students cannot sell their materials at the end of the course or keep them or future reference, harming students who already cannot afford books;
Automatic billing or so-called “inclusive access” means that students are automatically charged for materials, eliminating their ability to price shop; and
Based on contracts proposed at some schools, publishers will continue to raise prices at the same rate that has led to the current affordability crisis.
The potential anticompetitive impacts of this merger are obvious and significant. Assuming the relevant market is the U.S. college textbook market, the merger is between two entities that each control more than 20% of an already highly concentrated market. Under relevant case law and the DOJ’s/FTC’s Horizontal Merger Guidelines, the merger presumptively increases market power for the post-merger entity and violates Section 7 of the Clayton Act. Moreover, the merging entities have made clear they intend to develop an all-access digital subscription service that, if adopted en masse, will likely eliminate both smaller competitors and the secondary market for college textbooks. Finally, by creating a virtual duopoly, the merger increases the likelihood of coordination among rivals. Considering these issues, the DOJ must take a very close look at this merger and implement conditions that address these issues if the merger is approved.
With fall officially upon us, the legal industry continues to whirl with change, innovation and movement. Read on to learn about some of the developments from the past two weeks, covering law school changes, law firm updates and legal technology developments.
Law Firm Moves: Mergers, Practice Group Additions and New Hires
Boston law firm Anderson & Kreiger LLP recently announced Lon F. Povich has joined the firm as Counsel. Povich is former Chief Legal Counsel to Massachusetts Governor Charlie Baker.
Mr. Povich says: “As I return to the private practice of law, I wanted to join a firm that offered challenging work in both the public and private sectors as well as an inclusive and supportive culture that prioritizes practicing law with the highest professional standards.”
As Chief Legal Counsel, Povich oversaw the confirmation process for 130 judges across the commonwealth, including 4 on the Supreme Judicial Court. Additionally, he counseled on the regulation of new industries, such as gig economy staples like Uber, short term rentals like Airbnb and the legal marijuana industry. Povich also contributed to the 2018 criminal justice reform bill and the 2015 reforms for the Massachusetts Bay Transit Authority (MBTA). David Mackey, Managing Partner at Anderson & Kreiger says, “Lon will bring to the firm experience with the wide variety of issues he dealt with in the Baker administration as well as a diverse set of experiences in the private sector and as a federal prosecutor. We know that he will be an excellent colleague and he will further strengthen our ability to serve our clients.”
James V. Drew has joined Katten in the firm’s New York office as a partner in its Insolvency and Restructuring practice. Drew has fifteen years of experience advising clients across a variety of industries on insolvency matters. He has particular experience in “conflicts counsel” or as an independent director role on investigations or litigations of claims and causes of actions on behalf of debtors, secured and unsecured creditors and indenture trustees. Additionally, he has experience handling matters as lead counsel for debtors, lenders and other creditors, equity holders, liquidators and defendants in avoidance actions or bankruptcy litigation.
Steven Reisman
Steven J. Reisman, the head Katten’s New York Insolvency and Restructuring practice, says, “Jim is a highly skilled attorney who is respected by his clients for his practical advice and business-minded approach to addressing their most pressing insolvency and restructuring issues.”
DLA Piper attorneys Claire Hall (Los Angeles), Richard Hans (New York), Marc Horwitz (Chicago) and Isabelle Ord (Los Angeles) are leading the firm’s new LIBOR Transition practice, assisting companies with impact assessment and advising on benchmark reform implementation across multiple jurisdictions and products. This transition from interbank offered rates to alternative reference rates poses challenges to companies that are operational, legal, related to taxes, accounting and compliance. DLA will assist companies with these challenges by monitoring developments across industry working groups and addressing benchmark transition across jurisdictions like ISDA, SFIG/SFA, LSTA, SIFMA and the ARRC.
Hans points out that DLA Piper, with its track record of advising some of the largest financial services companies and institutions on operations and strategic planning, is well suited to assist with the LIBOR transition. He says, “Our LIBOR transition team will be able to assist clients in creating and implementing strategic and customized action plans that lay out the steps needed to implement benchmark transition.”
Karen Mangasarian
Karen Mangasarian has joined Haley Guiliano, a boutique IP law firm as a Partner. She will join the firm in their New York office, but she was attracted to the firm’s presence in not only New York, but also Silicon Valley and London. She says: “I was attracted by Haley Guiliano’s entrepreneurial spirits and business value-based approach to intellectual property, as well as its commitment to diversity and the mentoring of junior lawyers and technical advisors.”
Mangasarian has over twenty years of experience in life sciences practice, including patent filing and prosecution, freedom to operate and landscape analyses, and contested proceedings in the USPTO and other patent offices. Mangasarian earned her JD from New York Law School while working as a post-doctoral fellow in microbiology at the New York University Medical Center. She has also studied pharmacology, earning a Ph.D., and a BS Degree in Biochemistry from the University of Wisconsin.
Jim Haley, head of the Life Sciences practice at Haley Guiliano, says “Karen is a marvelous addition to our firm and to our Life Sciences practice.”
Full-service business law firm based in Portland, Oregon, Ater Wynne will merge practice into Buchalter, bolstering the latter’s presence in the Pacific Northwest. Ater Wynne’s 22 attorneys will join Buchalter on in October, bringing Buchalter to roughly 300 attorneys in nine locations across the country, and adding Buchalter’s second office in the Pacific Northwest in under three years.
Todd A. Mitchell, Ater Wynne’s Managing Partner will become Managing Shareholder of the Portland office and a member of Buchalter’s Board of Directors. Mitchell calls the move “an opportunity to provide stronger counsel to our clients in Portland and the surrounding region,” and he says the two groups have a strong cultural fit.
Adam J. Bass, President and CEO of Buchalter, has overseen more than 130 attorneys added to the firm and has opened offices in California and in Washington State. He calls the move a chance to “stay ahead of the curve. This move is about looking to the future and the right cultural and business fit.”
Law Firm Awards, Recognitions and Achievements
Zuckerman Law principal Eric Bachman was named to the prestigious “Top Lawyers in America” list for 2020 by Best Lawyers in the field of Labor and Employment. Lawyers are nominated for this achievement, and then evaluated by their peers based on professional expertise. Bachman was included in the 2020 Edition of Washington D.C.’s Best Lawyers.
Bachman is the Chair of the discrimination and retaliation practices at Zuckerman Law, and prior to his work with Zuckerman he served in senior roles at the Department of Justice Civil Rights Division and in the U.S. Office of Special Counsel where he worked on class actions and whistleblower protection act settlements.
Preeminent workplace law firm Jackson Lewis once again was listed on the BTI Litigation Outlook 2020 report, earning “Powerhouse” rankings in Complex Employment Litigation and the Employment Litigation categories. These rankings are based on in-depth interviews with legal decision-makers, involving data from more than 9,000 corporate counsel client interviews.
Jackson Lewis is on track to have a record number of trial victories in 2019, and this is in part due to the firm’s forward-thinking approach through innovative programs like its Advanced Trial Techniques Academy, which enhances the already strong litigation strength of the firm’s attorneys.
Firm Co-Chairs Kevin G. Lauri and William J. Anthony: “Jackson Lewis remains committed to staying abreast of national litigation trends faced by employers and delivering the best possible results, by both providing exceptional client service and retaining a deep bench of top-notch litigators.”
BTI reaches out to legal decision-makers at large organizations, with more than $1 billion in revenue, targeting decision-makers in the industries that have the largest legal spend, consulting Chief Legal Officers, Chief Legal Operating Officers and other executives with a say in the selection of outside counsel. BTI’s 2019 report indicates an expectation of growth in litigation for the third year in a row. More information about the BTI Litigation Outlook 2020 report can be found here.
The law firm of Sills Cummis & Gross received top ranking as one of the “highly recommended” New Jersey litigation firms in the 2020 edition of Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms & Attorneys. This is the third year in a row Sills Cummis & Gross received this honor. Focusing solely on litigation in the United States, this guide is published by Euromoney Institutional Investor PLC. Firms recognized are chosen based on interviews with the country’s leading private practice lawyers and in-house counsel. Thirteen members of Sills Cummins & Gross were also included.
MoginRubin LLP is representing a class of non-bank ATM operators across the United States arguing that Visa, Mastercard and its affiliated banks conspired to fix ATM fees, requiring anticompetitive overcharges for network processing fees, resulting in higher ATM surcharges and foreign transaction fees when customers use ATM’s not associated with their bank.
The proposed class represents 60% of the U.S. ATM market and includes the following: ATMs of the South, Inc., Business Resource Group, Inc., Just ATMs USA, Inc., Wash Water Solutions, Inc., ATM Bankcard Services, Inc., Selman Telecommunications Investment Group, LLC, Scot Gardner d/b/a SJI, Turnkey ATM Solutions, LLC, Trinity Holdings Ltd, Inc., and T&T Communications, Inc. and Randal N. Bro d/b/a T&B Investments. Roughly five years ago Visa and Mastercard attempted to have the case dismissed, even taking the matter to the U.S. Supreme Court, however, the Supreme Court found that the companies had changed their argument after the court granted certiorari and dismissed the writ as “improvidently granted.”
Jonathan Rubin of MoginRubin LLP calls the rules governing the fees “absurd” designed to punish consumers who choose less expensive networks or the defendant’s competitor’s networks. He says, “The independent ATM operators and regional networks are providing a necessary service that banks are unwilling to provide or to invest in, but Visa and Mastercard are using their market power to impose anti-competitive fees and bleed the operators and consumers for their own profit,” he added. “Mastercard and Visa have no business telling independent ATM operators what to charge.”
Legal Industry News, Law School Updates
Leading legal publisher Fastcase announced today the acquisition of NextChapter, the cloud-based bankruptcy software for attorneys and paralegals.
Bankruptcy Paralegal Janine Sickmeyer used her expertise in preparing bankruptcy cases to create NextChapter, teaching herself to code and building the application from the ground up, launching in 2016. The service became known as “the turbo tax for bankruptcy filings” and its success was built on the efficiency created by understanding the best workflows and practices into an easy to use, full-circle solution used by several thousand law firms across every district in the U.S. Upon Fastcase’s acquisition of NextChapter, Sickmeyer will become Managing Director and Founder of NextChapter and Director of Practice Workflow at Fastcase. She calls the acquisition “a dream come true” and she voices her admiration for Fastcase leadership. She says, “it’s invigorating to collaborate and continue to build NextChapter’s company and products alongside them. Fastcase and NextChapter share the same core beliefs on customer-focused products. I know this opportunity will allow us to continue serving our mission.”
The UCI Law Graduate Tax Program and Alteryx Inc. Announce Tax and Data Analytics Partnership, designed to train future tax attorneys on ways big data analytics can work in tax law.
Students in the UCI Law Graduate Tax Program will learn on the program already used by in-house tax departments–Alteryx Designer, and will learn how to use the data analytics platform to generate data-based legal tax advice, earning a certification for successful completion. This practicum is the first time Alteryx will work with a law school, and the group will provide software licenses to students who participate in the program. Omni Marian, Professor of Law and the Academic Director of the UCI Graduate Tax Program, says the program is a way to prepare students for the way practicing tax law will be in the future. He says, “Alteryx for Good’s generosity allows us to help our students to become future leaders of the legal tax profession.”
Bachelor’s Degree Center which provides a free guide to bachelor degree programs across all disciplines, recently released four guides to the best Paralegal bachelor degree programs in the United States, including the 25 Best for 2020, the 15 Best Online Paralegal Programs, the 10 Fastest Online Paralegal Programs, and the 10 Most Affordable Paralegal Bachelor’s Programs.
The top 3 Best Paralegal Bachelor’s Programs for 2020 are:
Auburn University
Quinnipiac University
Montclair State University
The Top 3 Online Paralegal Bachelor’s Programs for 2020 are:
Tulane University
University of Central Florida
University of Massachusetts Lowell
The Top 3 Most Affordable Paralegal Bachelor’s Programs for 2020 are:
Bellevue University
Charter Oak State College
Peirce College
The guide points out that while law schools have been graduating new attorneys facing an uphill battle in the legal marketplace, paralegals are still very much in demand. A standard entry into the profession is a two-year associate degree, however, many paralegals combine work with further study, and a bachelor’s degree in legal studies can be the key to moving ahead in the profession. Whether an online program or a traditional program, this guide provides important information so students—non-traditional or otherwise, can make the best choice for their situation.
That’s it for now. We’ll be back in a few weeks with more updates on the legal industry.
While California Governor Gavin Newsom considers placing his signature on Senate Bill 206 and making his state the first state in the country to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status, the legislation is already having an impact nationally. In response to the unanimous support for Senate Bill 206,
two South Carolina State Legislators intend to make South Carolina the second state to recognize the rights of student-athletes to profit from their name, image and likeness.
South Carolina State Senator Marlon Kimpson and Representative Justin Bamberg have announced that they intend to introduce a bill similar to California SB 206 when the South Carolina General Assembly reconvenes in January. Their proposal would allow the state’s largest schools to pay $5,000 a year in stipends to athletes in profitable sports like football and basketball. It would also allow other student-athletes who would be eligible to receive athletic scholarships benefits, but not the stipend, an opportunity to earn money from potential sponsorships and sales of their personal autograph.
In response to questions about introducing his proposed legislation, Senator Kimpson said, “The legislation passed in California is a sign of the time. The NCAA is not an amateur sports league. This is a multibillion dollar sports empire where everyone involved makes money except the players on the field who earn it.”
In an interesting twist to current law, Senator Kimpson also said his bill would compensate players for their hourly work, allow them to make money from using their likeness to sell merchandise, and establish a fund to assist players who suffer from sports-related injuries later in life.
Despite California’s success is achieving unanimous support from its Legislature for its bill, it is thought that South Carolina Legislators will voice strong opposition to Kimpson and Bamberg’s bill. Prior efforts put forth by South Carolina legislators, including legislation introduced by Senator Kimpson in 2015, to allow student-athletes to receive compensation beyond their athletic scholarships have failed to gain support.
University of South Carolina Athletic Director Ray Tanner has already expressed opposition stating that any such proposal “gives him angst.’ In addition, Clemson Head Football Coach Dabo Swinney, who recently signed a multi-year contract extension making him the highest paid college football in the nation, has already publically stated that if college players are paid, “I’ll go do something else because there’s enough entitlement in this world as it is.”
Despite anticipated opposition, South Carolina Senate Education Committee Chairman Greg Hembree, the head of the committee that will initially consider the bill when it is introduced, said he is open to the idea, comparing the NCAA student-athlete to Olympic participants and their rights to benefit from their name, image and likeness.
Representative Bamberg expressed his feelings as to why he believes the bill is an important measure for South Carolina to consider. “Our job is to take care of our citizens, our schools, our players. If another state wants to continue the proverbial football farm, that’s their problem.” He added,
That extra money — even just a few thousand dollars a semester — could go a long way for underprivileged athletes and their families.
Student loan borrowers commonly wonder whether they should refinance federal loans into private loans. There are many factors to consider in the case of federal loans, such as interest subsidies and possible forgiveness (but often with income tax consequences) paired with interest rates that are often lower in the case of private loans. Knowing the differences between federal and private student loans is imperative when making this decision.
Most notably, federal student loans are generally forgiven upon death whereas private lenders will pursue an estate for amounts owed by deceased borrowers.
Before refinancing your federal student loans into private ones, consider the cost of the extra life insurance you will need to purchase to cover the debt and, if you have already refinanced, be sure that your insurance coverage is adequate so that amounts intended for your family do not instead pay back creditors. When planning for federal student loan forgiveness, do not forget to account for any associated cancellation of debt income and purchase adequate insurance to cover the anticipated tax burden. The income tax on cancellation of debt income regarding federal student loans forgiven due to death was eliminated by the 2017 Tax Cuts and Jobs Act but this change is set to expire at the end of 2025 unless extended by Congress.
Similarly, consider any federal interest subsidies that may be available before refinancing. In some cases, the offset of the federal interest subsidy combined with the cost of the additional life insurance needed to cover the private loan debt makes refinancing a disadvantageous move.
In all cases, be sure to discuss the extent and type of your student loan debt and your repayment plan with your estate planning attorney. Planning for federal student loans is notoriously difficult because they are a moving target. The rules surrounding forgiveness, associated income tax consequences, repayment plans and interest subsidies can be changed at any time by any administration. Until a borrower’s loans are actually forgiven or paid off, the rules may be changed in the middle of the game which can make planning very dynamic. It is imperative to monitor the laws surrounding student loans and how they may affect repayment options, forgiveness options and associated income tax consequences.
Under federal law, borrowers who have been determined by the Secretary of Veterans Affairs to be unemployable due to a service-connected condition and who provide documentation of that determination to the Secretary of Education are entitled to the discharge of such debt. For the last decade, veterans seeking loan discharges have been required to submit an application to the Secretary of Education with proof of their disabilities obtained from the Department of Veterans Affairs. Only half of the approximately 50,000 totally and permanently disabled veterans who qualify for the discharge of their Federal student loan debt have availed themselves of the benefits provided to them.
The Memorandum directs the Secretary of Education to develop as soon as practicable a process, consistent with applicable law, to facilitate the swift and effective discharge of applicable debt. In response, the Department of Education has said that it will be reaching out to more than 25,000 eligible veterans. Veterans will still have the right to weigh their options and to decline Federal student loan discharge within 60 days of notification of their eligibility. Veterans may elect to decline loan relief either because of potential tax liability in some states, or because receiving loan relief could make it more difficult to take future student loans. Eligible veterans who do not opt out will have their remaining Federal student loan debt discharged.
U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.
What Is STEM OPT?
STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.
What Is a Site Visit?
ICE conducts site visits to ensure that STEM OPT students receive the structured and guided work-based learning experiences required by the regulations. The purpose of the site visit is to confirm that information reported on the F-1 student’s Form I-983 training plan is accurate and being executed by the employer.
ICE generally notifies employers at least 48 hours prior to conducting a STEM OPT site visit. However, ICE is authorized to conduct unannounced site visits in the event that the agency receives a complaint or other evidence of noncompliance with STEM OPT guidelines. ICE has been sending emails directly to the managers of F-1 student STEM OPT trainees with an attached Notice of Site Visit. These communications contain:
The date of the scheduled visit;
A list of F-1 students whose STEM OPT training has been selected for inspection;
A request for a copy of each F-1 student’s Form I-983, Training Plan for STEM OPT Students; and
A request for other documentation related to the organization’s STEM OPT training program.
If you receive any communication from ICE or the Department of Homeland Security, please notify your attorney immediately before responding. This is to ensure both the legitimacy of the correspondence as well as to ensure that an appropriate response is submitted to ICE.
What Will Happen During a Site Visit?
The purpose of the STEM OPT site visit is to ensure that the employer and F-1 student are following the training plan as outlined in the Form I-983, and that the employer possesses the ability and resources to provide the structured and guided work-based learning experiences outlined in the training plan. During a site visit, ICE may review several aspects of the F-1 student’s STEM OPT training plan, including a review of pay documents to ensure that the student is being paid properly, a review of the Form I-983 training plan, and a review of the trainee’s workspace.
The inspection may include individual interviews with company personnel, a review and discussion of the F-1 student’s training plan and its implementation, and a review of the F-1 student’s skills and degree in relation to the STEM degree. ICE may also request to view F-1 student workspaces or receive a tour of the premises.
It is important that students and STEM OPT employers accurately and comprehensively complete the Form I-983 training plan, and that the F-1 student, the student’s immediate manager, and the immigration contact are all familiar with the contents of the Form I-983 training plan. Inconsistencies between the opportunity as described in the training plan and what the student is actually doing can have serious consequences for students and employers.
While this type of site visit should focus exclusively on STEM OPT, if evidence of other immigration-related violations is found during the site visit, ICE may address the violation or refer it to the appropriate agency or ICE unit for further review.
How Can I Prepare for a Site Visit?
At each worksite where an F-1 STEM OPT student is being trained, your organization should designate a point of contact, such as a human resource or immigration manager, to receive ICE officers. Receptionists and security personnel should be advised to complete the following steps should an ICE officer arrive to conduct an inspection:
Notify the designated point of contact to inform him or her that an ICE officer has arrived to conduct a site inspection;
Verify the officer’s identity: ask to see and take note of the officer’s identification, including badge, name, and ID number. Ask for the officer’s business card and call the number on the card to verify the identity of the officer. Officers should expect this and it is important that the officer’s identity is verified before disclosing or discussing employee information;
Wait for the designated point of contact to arrive before releasing any information.
During the visit, the officer will ask questions, request documentation, and may take photographs. The designated point of contact should remain with the officer throughout the visit and take detailed notes, including the name, title and contact information of each officer; the names and titles of anyone interviewed by the officer; questions asked during interviews; any company documents provided to the officer; worksite areas visited by the officer; and any photographs taken by the officer. If company documents are provided to the officer, the designated point of contact should be sure to list the documents provided and retain copies. If the officer takes photographs of the worksite, the designated point of contact should ask for copies. The officer may request that the designated point of contact not be present during interviews with the F-1 student or managers. In this instance, the designated point of contact should remain available to answer any questions that may arise.
Managers, supervisors and F-1 students should be prepared to answer questions on the following topics:
The information provided in the trainee’s Form I-983 training plan;
The nature of the F-1 student’s job duties at the organization;
How the job duties relate to the F-1 student’s degree and academic program;
Why the F-1 student is qualified for the position;
What qualifications managers look for when hiring for similar positions;
How the manager supervises the F-1 student and executes the training plan; and
If the F-1 student is placed at a third-party worksite, how does the manager supervise the F-1 student and implement the training plan.
Special Note for California Worksites: Immigrant Worker Protection Act (AB 450)
Employers who have worksites in California are also required to comply with portions of the Immigrant Worker Protection Act. In 2017, California passed the Immigrant Worker Protection Act (AB 450), placing requirements on how public and private employers could interact with Federal immigration authorities. On March 6, 2018, the U.S. Department of Justice filed a lawsuit challenging the Immigrant Worker Protection Act, and on July 5, 2018, the U.S. District court enjoined California from enforcing portions of the law related to worksite inspections and employment eligibility as it applied to private employers. This means that private employers cannot currently be prosecuted for:
Allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;
Voluntarily allowing the federal immigration enforcement agent access to employee records; or
Re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.
Private employers are still required to comply with the notice requirement provisions of the Immigrant Worker Protection Act. An explanation of the Immigrant Worker Protection Act, and information regarding the Act’s notice requirements, can be found here.
In a landmark decision, a Pennsylvania jury ruled in favor of the defendant National Collegiate Athletic Association (NCAA) in the first sports concussion case tried to verdict. In a 10−2 decision, the jury in Onyshko v. NCAA, No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA) (filed 6/27/14, originally filed in federal court on 12/17/13) found that the NCAA was not negligent in its dealings with plaintiff Matthew Onyshko when he was a student at California University of Pennsylvania.
In 2008, five years after his college football career ended, Onyshko was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease usually diagnosed between age 40 and 70. Onyshko and his wife sued NCAA for claims of negligence and loss of consortium. The complaint stated that, during his college football career, Onyshko experienced numerous, repeated blows to the head, lost consciousness for at least 30 seconds on three separate occasions, and that repeated blows to the head caused him to develop ALS.
The NCAA is the main regulatory body for college sports to promote safe participation. According to Onyshko, the NCAA knew from at least the 1980s that football-induced brain injuries cause long-term damage, but it failed to adequately supervise, regulate, and minimize the risk of long-term brain injury resulting from repeated head impacts.
NCAA’s pre-trial motion to dismiss, which argued that the complaint failed to adequately plead the existence of the legal duty, was denied by the court on December 3, 2014. Subsequently, NCAA moved for summary judgment, arguing that (1) the action was barred by the statute of limitations, (2) NCAA did not have a duty to plaintiff, (3) NCAA did not breach a duty to protect against the long-term risks of concussion and (4) plaintiff’s alleged head injuries incurred while playing college football did not cause his later development of ALS. In denying the motion, the court found that plaintiffs’ expert opinions created a genuine issue of material fact about whether concussive and sub-concussive blows to the head while playing collegiate football could cause ALS.
After years of litigation and substantial discovery, the case went to trial, with jury selection beginning on April 29, 2019. During the trial, which lasted almost a month, Onyshko, now 38 years old, used a computerized device controlled by eye movement to give testimony. According to Onyshko, he sustained at least 20 concussions as a college football player during which he blacked out, but was never taken off the field in a stretcher. He further testified that he did not report the episodes to a trainer because he did not know that these were an issue. He said that the diagnosis of ALS in 2008 was a shock because it did not run in his family.
During cross-examination, the NCAA’s attorney brought up Onyshko’s deposition testimony that Onyshko first experienced headaches, dizziness, and memory problems in 1999, before he played any collegiate games. Video recordings of games in which plaintiff played were shown to refute plaintiff’s claims of the multiple head injuries he allegedly sustained.
In his closing statement, plaintiffs’ attorney requested compensatory damages of $9.6 million. Deliberation began the afternoon of June 5, 2019. After seven and a half hours, the jury found in favor of NCAA on liability. The plaintiffs announced plans to appeal and re-file the matter as a wrongful death case under Pennsylvania law when Onyshko dies.
Bachman is the Chair of the discrimination and retaliation practices at Zuckerman Law, and prior to his work with Zuckerman he served in senior roles at the Department of Justice Civil Rights Division and in the U.S. Office of Special Counsel where he worked on class actions and whistleblower protection act settlements.
Bankruptcy Paralegal Janine Sickmeyer used her expertise in preparing bankruptcy cases to create NextChapter, teaching herself to code and building the application from the ground up, launching in 2016. The service became known as “the turbo tax for bankruptcy filings” and its success was built on the efficiency created by understanding the best workflows and practices into an easy to use, full-circle solution used by several thousand law firms across every district in the U.S. Upon Fastcase’s acquisition of NextChapter, Sickmeyer will become Managing Director and Founder of NextChapter and Director of Practice Workflow at Fastcase. She calls the acquisition “a dream come true” and she voices her admiration for Fastcase leadership. She says, “it’s invigorating to collaborate and continue to build NextChapter’s company and products alongside them. Fastcase and NextChapter share the same core beliefs on customer-focused products. I know this opportunity will allow us to continue serving our mission.”
