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December 2022

Business

As Roads Split In 2022 Stocks, One Trade Made All the Difference


With inflation and Fed policy dominating news flows, investors contended with an all-or-nothing market where fundamentals of individual companies retreat to the backseat. Lockstep stock moves, one day up and the next down, swept through the market like storms, as paranoia over inflation alternated with optimism the economy can weather the Fed’s battle against it. For 83 separate sessions in 2022, at least 400 members in the S&P 500 moved in the same direction, a rate that tops all but one year since at least 1997. 





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Technology

Despite myriad flaws, US remains top spot for Black startup founders seeking VC dollars • TechCrunch


Despite, well, everything, the U.S. is still the best place in the world for Black startup founders to raise money. The check sizes are bigger, the market more mature, the ambition oversized. There are more funds, more options, more opportunities, more, more, more.

It’s quite easy to harp on the dismal funding and often discriminatory treatment that Black founders receive in the U.S. Through the haze, though, the reality is that the heart of the American Dream is still beating.

For example, Lotanna Ezeike, a serial founder, said he’s looking to fundraise for his new startup in the U.S., despite raising more than $1 million for his U.K.-based fintech, XPO.

“Across the pond in the U.K., thinking tends to be very limited, especially around the seed stage,” he said, adding that a seed in the U.S. is a pre-seed or family round in the U.K.

“I think this is because of how small the U.K. is compared to other regions, so the mind can only dream so big. It’s a spiral really — less wealth, less capital, fewer ideas that become unicorns.”

Cephas Ndubueze, who is from Germany, echoed similar sentiments. He said he still looks to the U.S. for venture funds for his startup because there are more success stories of Black founders in the U.S. than in Europe, meaning a greater chance of him finding his own path compared to Germany.

“I can definitely say the U.S. is a better environment for Black founders,” he told TechCrunch. “Why? More diverse investors in the U.S. More investors are investing in nontraditional businesses. More institutional investors are providing ticket sizes from $100,000 to $500,000 in the idea stage, more opportunities to build a founder network, and more investors that have already invested in Black founders in the past.”

While the reception of Black founders may appear warmer in the U.S., the numbers show more of the same. (France and Germany do not track race data, though founders and venture capitalists interviewed by TechCrunch revealed anecdotal evidence of persistent racism in both markets.) As an ironic result, founders look to the U.S. for networking opportunities.





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Law \ Legal

Why 2022 Is Already A Term Like No Other


cartoon The Supreme Court architectureThis is a historic year for the Supreme Court. After a second term with a conservative supermajority, the Court is once again positioned to make key decisions along ideological lines.  While the Roberts Court will be remembered for its ideological splits and key decisions in the areas of individual rights and liberties, it will also be remembered for its slow decision making process and curtailed number of decisions each term. This term follows the same trajectory.   

This story could be about the 52 cases slated for argument so far this term and the possibility that the Court will once again undercut its lowest production ever in terms of argued cases. Instead, it is about the lack of decisions so far this term.  The Court has yet to release a single slip opinion thus far in the 2022 Term. This in and of itself is a record for the slowest release time in the Court’s history. When we look at opinions in argued decisions and the lack of any decided cases, the distinction between this term and all others is incredibly stark as is evident below.

Feldman12_27_01

The graph above tracks the number of days between the first oral argument in a term and the first decision in an argued case since 1870 (decisions prior to 1870 were reached even quicker). The earliest that we will see a decision in an argued case this term is on January 3, 2023. That date marks 92 days since the first argument this term on October 3, 2022.  The most time the Court has taken for its first decision in past terms was 65 days and so this marks minimally a 40% increase in time for this term.

What are the mechanisms at work here? One might point to the friction on the current Court as a possible rationale. Last term, however, the Court’s first opinion in an argued case was released in fewer than 50 days after the first argument and the Court’s composition was ideologically the same (swapping in Jackson for Breyer). This then may be an unsatisfying explanation for the Court’s slow productivity this term. 

Other indicators do not shed much light on the difference between this term and all others either, although they do show how differences in the current Court may have set the stage for this kind of production. When we look at the average time between arguments and decisions across terms, we see the steady rise in time.

feldman_12_27_02 

Several of the blips in previous terms are because of arguments that were not resolved in previous terms and when you remove such outliers the incline to the current times to decisions are more pronounced.

From this we might expect a steady rise in the time it takes the Court to make decisions but not a huge jump in any one year.  Another explanation may be that the justices write so many separate opinions each term, which slows down the time it takes to release decisions. This explanation appears unsatisfying as well.  If we look at the total number of arguments divided by the total number of majority and separate opinions each term, we see a drop in this ratio over time but not a huge plunge.

Feldman_12_27_03 

This in and of itself is not a great predictor of aberrations in the pace of decision releases. One might also aggregate the data on the number of pages per opinion to track if longer pages per decision each term slows down the Court’s production. This still would not explain the difference between this term and all terms prior to this one. Add to this the fact that we are likely to see several unanimous decisions when the first opinions are finally released this term as we have seen in the past and the bevy of pages the Court releases overall in a term would not help explain why the Court has been so slow to release a single decision this term.

What can we expect? One thing that the past should shed light on is who we should expect to write the first decisions this term. The graph below shows the fastest authoring justices on this or recent Courts.

Feldman_12_27_04

 Justice Sotomayor is the most obvious choice of a justice to author the first decision this term. If the first decision has few if any dissents as can be expected, then it is likely to be delegated to one of the liberal justices as they will most likely author decisions with the fewest dissents this term. Since we do not have any data to base suppositions on Justice Jackson’s authoring pace and Justice Kagan tends to take more time with her authorship, Justice Sotomayor is an obvious choice for the author of the Court’s first decision.

We will not likely ever have a concrete answer for why the Court has been so slow in releasing opinions this term, but this is not surprising given the Court’s opaque nature in general. Since the Court has already significantly cut down its total decision output each term though, this is another crystal clear sign of the decreased productivity of the modern Court.

* The US Supreme Court Database was used to locate decision dates for this post.

Read more at Empirical SCOTUS….


Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.comFind him on Twitter: @AdamSFeldman.





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Sports

Georgia coach Kirby Smart sends stern warning to Ohio State before CFP


Georgia Bulldogs head coach Kirby Smart sent a warning Ohio State’s way before their College Football Playoff matchup.

Kirby Smart is ready to hunt some Ohio State Buckeye on Saturday night.

OSU serves as a tough first-round College Football Playoff matchup for UGA, as the Buckeyes have an elite offense with targets for C.J. Stroud all over the field. If Ohio State finds some footing offensively, look out. This could be a closer game than expected.

Of course, the Dawgs are favored, as they should be. Georgia has looked relatively flawless all year long, and have the best defense in the country, bar none. Smart has kept his team honest since the matchup was announced, but on Saturday, he sent a clear message.

“You have to come out swinging,” Smart told ESPN. “Hungry hunters – I think that’s the only way to hunt. You have to eat. I am sure Ohio State feels the same way.”

Kirby Smart, Georgia hungry for win over Ohio State

UGA is mid-dynasty, potentially, as back-to-back National Championships would put them in the same conversation as the Alabamas of the world. The Crimson Tide are nowhere to be found in this year’s CFP, as Nick Saban’s bunch had to settle for a Sugar Bowl matchup against Kansas State.

With the Bulldogs on the rise, and Alabama on a slight decline, this could be a changing of the guard moment in college football.

However, Smart knows nothing is guaranteed. Georgia didn’t play its best brand of football in the SEC Championship Game, and will need to be better on Saturday.

“We didn’t play our best game the last time we were out, but our offense picked us up,” Smart said. “We didn’t have the perfect SEC Championship Game, so we have things to work on.”

There’s always room for improvement in Athens, where they preach perfection.



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Business

WHO Asks China To Regularly Share Data On Covid-19 Situation


The World Health Organization has again urged China to regularly share specific and real-time data on the Covid-19 situation in the country, amid a surge in coronavirus cases after Beijing relaxed its strict ‘Zero-Covid’ policy.

The global health agency has asked Chinese health officials to share data on genetic sequencing, hospitalisations, deaths and vaccinations.

A high-level meeting took place between officials from WHO and China on the current surge in Covid-19 cases to seek further information on the situation, and to offer WHO’s expertise and further support, a WHO statement said on Friday.

“WHO again asked for regular sharing of specific and real-time data on the epidemiological situation — including more genetic sequencing data, data on disease impact including hospitalisations, ICU admissions and deaths —and data on vaccinations delivered and vaccination status, especially in vulnerable people and those over 60 years old,” it added.

WHO reiterated the importance of vaccination and booster doses to protect against severe disease and death for people at higher risk.

The statement said that high-level officials from China’s National Health Commission and the National Disease Control and Prevention Administration briefed WHO on China’s evolving strategy and actions in the areas of epidemiology, monitoring of variants, vaccination, clinical care, communication and R&D.

WHO called on China to strengthen viral sequencing, clinical management, and impact assessment, and expressed willingness to provide support on these areas, as well as on risk communications on vaccination to counter hesitancy.

“Chinese scientists are invited to engage more closely in WHO-led Covid-19 expert networks including the Covid-19 clinical management network,” the WHO statement said.

It said that the WHO has invited Chinese scientists to present detailed data on viral sequencing at a meeting of the Technical Advisory Group on SARS-CoV-2 Virus Evolution on January 3.

“WHO stressed the importance of monitoring and the timely publication of data to help China and the global community to formulate accurate risk assessments and to inform effective responses,” it said.

Millions of Chinese have been infected in the current surge of Omicron variants in the country, causing an alarm over the world.

China’s health officials on Friday discussed with the WHO experts the current surge of the Covid-19 cases in the country after the organisation’s chief Tedros Adhanom Ghebreyesus asked Beijing to share more information.

The WHO tweeted on Thursday: “As I said at our most recent press conference — in order to make a comprehensive risk assessment of the Covid-19 situation on the ground in China, @WHO needs more detailed information”.

He also defended various countries, including India, to take protective measures against people arriving from China to prevent the virus from spreading.

“In the absence of comprehensive information from China, it is understandable that countries around the world are acting in ways that they believe may protect their populations,’ he said.

India has joined the United States, Japan, Italy and Taiwan in imposing mandatory Covid tests for travellers from China, amid a Covid-19 surge there after authorities relaxed strict ‘Zero-Covid, rules.

“We continue to call on China to share data and all hypotheses about this pandemic remain on the table,’ the WHO chief said, referring to the origin of the coronavirus which was first reported in Wuhan city of China in late 2019.

His remarks came against the backdrop of China criticising the countermeasures taken by various countries including the US, Japan and India requiring travellers from China to undergo the required tests.

Official Covid-19 figures from China have become unreliable as less testing is being done across the country following the recent easing of the ‘Zero-Covid’ policy.

Beijing’s decision to lift all travel restrictions, including scrapping of quarantine for inbound travellers from January 8 ahead of Chinese New Year, has caused alarm around the world.

Millions of Chinese are expected to travel to various parts of the world for holiday during this period.





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Technology

Meta acquires Luxexcel, a smart eyewear company • TechCrunch


As Meta faces antitrust scrutiny over its acquisition of VR fitness developers Within, the tech giant is making another acquisition. Meta confirmed to TechCrunch that it is purchasing Luxexcel, a smart eyewear company headquartered in the Netherlands. The terms of the deal, which was first reported in the Belgian paper De Tijd, have not been disclosed.

Founded in 2009, Luxexcel uses 3D printing to make prescription lenses for glasses. More recently, the company has focused its efforts on smart lenses, which can be printed with integrated technology like LCD displays and holographic film.

“We’re excited that the Luxexcel team has joined Meta, deepening the existing partnership between the two companies,” a Meta spokesperson told TechCrunch. It’s rumored that Meta and Luxexcel had already worked together on Project Aria, the company’s augmented reality (AR) research initiative.

In September 2021, Meta unveiled the Ray-Ban Stories, a pair of smart glasses that can take photos and videos, or make hands-free, voice-controlled calls using Meta platforms like WhatsApp and Facebook. By absorbing Luxexcel, Meta will likely leverage the company’s technology to produce prescription AR glasses, a product that has long been anticipated to come out of Meta’s billions of dollars of investment into its Reality Labs. However, a report this summer stated that Meta was scaling back its plans for consumer-grade AR glasses, which were initially slated for 2024. Meta did not comment on these rumors at the time.

When building its AR and VR products, Meta’s corporate strategy has been to acquire smaller companies that are building top technology in the field. Even Meta’s flagship headset, the Quest, comes from its acquisition of Oculus in 2014. Given the FTC’s attempts to block Meta’s purchase of Within, it’s possible that the purchase of Luxexcel could spark the same scrutiny.



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Crypto

Bitcoin Will Trend Lower Because Whales Are Still Selling


The impact of bitcoin whales and their activities has always been felt in the general market. This goes from buying to selling, and just the way they move their coins. Once again, these whales still hold sway in the market and their activity could spell a bottom signal.

Santiment Says Bitcoin Whales Are Selling

In a recent community post on the Santiment website, the activity of whales is analyzed in depth. This time around, a look at the balances of large holders shows that they are still selling. These whales who hold between 1,000 and 10,000 BTC have reduced their holdings from almost 8 million BTC back in December 2021 to less than 7 million BTC in December 2022.

Even in the last couple of months, they have reduced their balances by more than 200,000 BTC, showing that they are still selling. Given this sell trend among these large holders, the report predicts that the market will see “sideways or even lower prices for BTC in the next 6-12 months.”

Bitcoin whales

BTC whales are still selling | Source: Santiment

If this selling from large investors flows into 2023, then it is likely that the digital asset would start out the year seeing prices below $16,000. It is also important to note that the analysis in the report of whale addresses shows that the bottom of the market may not be reached yet.

BTC Bottom Is Still Not In

Now, the activity of whales is important to watch as accumulation by them could lead to a rally, and vice versa. One of the ways to try to pinpoint the bitcoin bottoms is with whale activity. At the very bottom of a bear market or at least close to it, whale address activities have historically declined.

However, the Santiment report notes that the average 7-day transaction count was still hovering around 10,000 presently. Compared to the previous bear markets when the market had marked its bottom, whale transaction counts had declined to 1,200 and 2,500. 

“This may mean that we need to wait for the average to drop further before we can conclude that even the big players are giving up,” the report reads.

Bitcoin price chart from TradingView.com

BTC price succumbs to selling pressure | Source: BTCUSD on TradingView.com

Another metric that the report points to is volume gaps. These usually show where the whales are accumulating and unfortunately, both volume gaps identified in the report lie well below the current trading price of bitcoin. The two key gaps identified were the $14,600 and $12,200 price levels, which could be a possible accumulation level for whales.

Essentially, the advice was to put off buying until whale transactions fall lower, as well as wait for the current selling pressure to subside. “To sum up, the activity of BTC whales and the presence of volume gaps at 14,600 USD and 12,200 USD may be worth watching,” Santiment said.

Featured image from Crypto Insiders, chart from TradingView.com



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Law \ Legal

Planning On A Lindt And Godiva Spread At Your End Of The Year Party? I’d Pay Attention To This Lawsuit First


1281645089_chocolate-souffle.jpgThere’s an old proverb about not learning how the sausage gets made. While it had a good run, I think that it is time to retire the phrase. Not only are there trends suggesting an increase in people reducing their meat consumption, companies like Beyond Meat being in the public imaginary mean that newer generations are more likely to associate the sausage making process petri dishes and lab coats over the Oscar Mayor jingle. If I had to pick a replacing phrase, it would have to be “Don’t check chocolate’s ingredient list.” The toxicity that inspires this phrase isn’t just a metaphor for the slave labor that goes into your little bars of dopamine. There’s lead in that shit.

Hershey Co (HSY.N) has been sued by a consumer who accused the company of selling dark chocolate that contains harmful levels of lead and cadmium.

In a proposed class action filed on Wednesday, Christopher Lazazzaro said he would not have bought or would have paid less for Hershey’s Special Dark Mildly Sweet Chocolate, Lily’s Extra Dark Chocolate 70% Cocoa and Lily’s Extreme Dark Chocolate 85% Cocoa had Hershey disclosed their metals content…Lazazzaro, a resident of Nassau County, New York, sued two weeks after Consumer Reports unveiled the results of scientific testing of 28 dark chocolate bars for lead and cadmium.

The magazine said that while all 28 contained the heavy metals, 23 including chocolate from Dove, Godiva, Lindt and Trader Joe’s contained potentially harmful levels of lead, cadmium or both for people who eat one ounce of chocolate a day.

If you’re anything like me, reading “an ounce of chocolate” is just a reminder of how bad at conceptualizing measurements you are. Fret not! I found the conversion for you! An ounce is pretty close to a serving. If you’re thinking back to how much chocolate you and your kids binged last October, I can understand your likely concern.

Lazazzaro said reasonable consumers would be turned off by such levels because they pose a “serious health risk,” and that consumers rely on Hershey to be truthful about ingredients in its products.

Now that is an understatement. Considering that lead and cadmium exposure in children can have well documented disastrous effects, I wouldn’t be surprised if many a trick or treater tried to join in on this class action lawsuit. Is this why wicked witches hand out candied apples to children instead of kisses? Unlike massive global corporations, witches know better than to poison the treats they plan on eating.

If you are interested in seeing how this case develops — who am I kidding, of course you are, keep your eyes on Lazazzaro v Hershey Co, U.S. District Court, Eastern District of New York, No. 22-07923

Hershey Sued Over Chocolate Containing Heavy Metals [Reuters]


Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.





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