The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause.

In 1994, Liebeck v. McDonald’s Restaurants sparked a nationwide tort reform debate after a jury found McDonald’s liable for a consumer’s injuries after she spilled McDonald’s coffee on herself. At the time, many commentators predicted a wave of frivolous lawsuits and large judgments against businesses. But 25 years later, those predictions have not materialized. While consumers continue to sue, the doctrine of proximate cause limits the liability that businesses face from claims for injuries related to hot drinks.

Liebeck v. McDonald’s Restaurants

In 1992, Stella Liebeck bought a cup of hot coffee from a McDonald’s drive-through in New Mexico. While parked, she placed the cup of coffee between her legs and attempted to peel the cap off. The coffee spilled and Ms. Liebeck sustained second- and third-degree burns.

Liebeck sued McDonald’s, alleging that the hot coffee was defectively manufactured, that it violated the implied warranties of merchantability and fitness for a particular purpose, and that the defect caused her injuries. At trial, Liebeck’s attorneys offered evidence that McDonald’s asked franchisees to brew coffee at 180-190 degrees Fahrenheit. Additionally, the attorneys offered evidence that McDonald’s had received more than 700 reports of burns resulting from coffee spills out of billions of hot coffees sold during the time period.

The jury ruled in favor of Liebeck and awarded her compensatory damages of $200,000 and punitive damages of $2.7 million. But the jury determined that Liebeck was 20 percent at fault for her own injuries, and the court reduced the punitive award significantly, resulting in compensatory damages of $160,000 and punitive damages of $480,000.

Shih v. Starbucks

Shih v. Starbucks presents a similar set of facts, but with a different outcome. In June 2016, Tina Shih went to Starbucks with a friend, and each ordered a hot tea. Each tea was given to Shih in a double-cup – one full cup placed within an empty cup. Neither cup had a sleeve. Shih carried both teas to her table and sat down.

Shih claimed that because the cup of tea was filled to the top and was very hot, she did not want to lift it. Instead, she pulled the lid off the cup and moved her chair back to sip from the cup while it was on the table. Shih pushed her chair back to lean over the cup, lost her balance, and put her hand on the table to steady herself – causing the hot tea to spill in her lap. Shih sustained second-degree burns from the incident.

Shih sued Starbucks. She alleged that the double-cup without a sleeve was a manufacturing defect, which – combined with the cup being filled to the brim with hot tea – caused her injuries. Starbucks moved for summary judgment on Shih’s claims, arguing that Shih could not prove the alleged manufacturing defect proximately caused her injuries. The court agreed, granted Starbucks’s motion, and entered judgment in favor of Starbucks. In 2020, the appeals court affirmed.

Proximate Cause is Key the Difference

The differences between Liebeck and Shih are the litigants’ defect claims and their respective theories of proximate causation. The proximate cause inquiry examines the relationship between the defendant’s alleged conduct and the plaintiff’s injury: if the defendant’s conduct is too attenuated from the consumer’s injuries, the defendant cannot be held liable for those injuries. Proximate cause exists when the defect in question increased the risk of harm to the consumer, and the consumer sustained injuries resulting from the increased risk. Courts generally test proximate cause by looking at whether the harm was a foreseeable result of the defect – meaning the business could reasonably have predicted the harm.

Liebeck’s attorneys successfully argued that the coffee was defective because it was served too hot and that the excessively hot temperature put Liebeck at an increased risk of burns. Liebeck established proximate cause by showing that her burn injuries were a foreseeable result of the alleged defect – the coffee being served very hot.

Shih could not establish proximate cause because the court held that the alleged defect was too attenuated from her injuries. Shih’s attorneys argued that the lack of a cup sleeve and the fact that the hot tea was full made it defective. Specifically, Shih would not have removed the tea lid, leaned forward, moved her chair, lost her balance and grabbed the table – causing it to wobble and spill the tea on her – if Starbucks had given her a cup sleeve or not filled the cup to the brim.

The court held that the alleged defect did not increase the risk of Shih being burned or otherwise injured by the hot tea; therefore, the defect was not the proximate cause of her injuries. The lack of a sleeve and the fullness of the tea did not increase Shih’s risk of losing her balance “while attempting to execute [this] kind of unorthodox drinking maneuver,” and spilling the tea on herself. The court’s use of “unorthodox” illustrates that, in the court’s view, Shih’s injuries were not a foreseeable result of the alleged defect. The court noted that while it is foreseeable that consumers could lose their balance and spill their drinks, losing one’s balance is not “within the scope of the risk” created by Starbucks’ decision to use a double cup and to fill the cup to the brim. Thus, Shih could not prove Starbucks’ actions proximately caused her injuries.

Twenty-five years after Liebeck sparked a national conversation about hot coffee and corporate liability, Shih demonstrates that courts continue to follow public policy limitations like proximate cause to protect businesses from unforeseeable consumer injuries.

© 2021 Schiff Hardin LLP

Article by Emilie McGuire and Jeffrey Skinner with Schiff Hardin LLP.

For more articles on class action lawsuits, visit the NLR Litigation section.

Wealth Planning in 2021: Preparing For a Changing Tax Landscape

Since President Biden took office at the beginning of this year, there has been much buzz and conjecture regarding what the tax policy under the Biden-Harris Administration would look like.  In light of the recently released Department of Treasury’s General Explanations of the Administration’s Fiscal Year 2022 Revenue Proposals, commonly known as the “Green Book,” we now have a better idea of the proposed tax law changes that the Administration will focus on implementing in the coming year.

While the Green Book contains various tax proposals that could significantly affect estate planning, it interestingly does not include a proposal to decrease the estate and gift tax exemption, which was a major topic of discussion during last year’s election cycle (click here to review our advisory on Estate Planning and the 2020 Election).  However, some Democrats in Congress nonetheless continue to argue for this reduction.  For example, Senator Bernie Sanders’ proposed legislation, For the 99.5% Act, would reduce the gift tax exemption to $1 million per person and the estate tax exemption to $3.5 million per person and would also impose new progressive estate tax rates ranging from 45% to 65%.

In any event, the Green Book contains the proposed tax laws that reflect the Administration’s top priorities and are more likely to be enacted than those proposals not included in the Green Book.  The Green Book proposals seek to reverse many of the tax laws included in the 2017 Tax Cuts and Jobs Act enacted under former President Trump, such as a proposed increase to individual income tax rates and an end to certain capital gains tax preferences, discussed in further detail below.

Green Book Proposals That Would Affect High Net Worth Clients:

Increase Top Marginal Individual Income Tax Rate for High-Income Earners.  The top marginal income tax rate would increase from 37% to 39.6% for taxable income in excess of the top bracket threshold.  For taxable years beginning January 1, 2022, this would apply to income in excess of $509,300 for married individuals filing jointly and $452,700 for single filers, and thereafter be indexed for inflation.

Tax Capital Gains for High-Income Earners at Ordinary Income Tax Rates.  For taxpayers with adjusted gross income of more than $1 million, long-term capital gains and qualified dividends tax rates would increase to match the proposed ordinary income tax rates.  To the extent that a taxpayer’s income exceeds $1 million, rates would go from 20% (or 23.8% including the net investment income tax (“NIIT”)) to 39.6% (or 43.4% including NIIT).  This proposal currently includes a retroactive effective date of April 28, 2021.

Treat Transfers of Appreciated Property by Gift or at Death as Realization Events.  This proposal would eliminate the so called “step up in basis loophole,” which allows for an asset transferred at death to be “stepped up” to fair market value for cost basis purposes resulting in no capital gains tax imposed on the asset’s appreciation through date of death.  Instead, the transfer of an appreciated asset by gift or at death would be treated as sold for fair market value at the time of the transfer, creating a taxable gain realization event for the donor or deceased owner.  There would, however, be a $1 million per person (or $2 million per married couple) exemption from recognition of capital gains on property transferred by gift or at death, indexed for inflation.  In addition, certain exclusions would apply, including:

  • Residence.  $250,000 per person (or $500,000 per married couple) would be excluded from capital gain on the sale or transfer of any residence.
  • Surviving spouse.  Transfers by a decedent to a U.S. citizen spouse would carry over the basis of the decedent and capital gain recognition would be deferred until the surviving spouse dies or otherwise disposes of the asset.
  • Charity.  Appreciated property transferred to charity would not generate a taxable gain; however, the transfer of appreciated assets to a split-interest charitable trust would generate a taxable gain as to the share of the value transferred attributable to any non-charitable beneficiary.
  • Tangible personal property.  No capital gain would be recognized on transfers of tangible personal property (excluding collectibles).

Although the tax imposed on gains deemed realized at death would be deductible on the estate tax return of the decedent’s estate, deductions are not equivalent to tax credits and in high tax states such as New York, the additional tax could be substantial.

Impose Gain Recognition on Property Transferred to or Distributed from an Irrevocable Trust.  Any transfers of property into, and distributions in kind from, an irrevocable trust would be treated as deemed recognition events subject to capital gains tax.  In addition, while the generation-skipping transfer (“GST”) tax exempt status of a trust would not be affected, gain would automatically be recognized on property held in an irrevocable trust which has not otherwise been subject to a taxable recognition event within the prior 90 years.  The first possible recognition event would be December 31, 2030 for any trust in existence on January 1, 1940.  This proposal would also apply to transfers to, and distributions in kind from, partnerships and other non-corporate entities.  Elimination of Valuation Discounts.  The valuation of partial interests in property contributed to a trust would be equal to the proportional share of the fair market value of all of such property.  In other words, no discounts for lack of marketability or minority interests would be allowed in valuing transfers of partial interests in LLCs, corporations, partnerships or real property.

Summary

The legislative text of the Administration’s tax proposals will likely not be available until the fall.  It is important to note that any proposed tax law changes face a split 50-50 Senate, which means that the prospect of passing any tax reform at all is uncertain.  Commentators believe that the Green Book proposals will be the subject of extensive negotiation over the next several months, including significant opposition to large increases in capital gains tax rates.  In the meantime, we at Wiggin and Dana [link to PCS attorneys page] are available to discuss the Green Book proposals in more detail and to make proactive, tailored recommendations in light of the current changing tax law landscape.

© 1998-2021 Wiggin and Dana LLP


Article by Michael T. Clear, Veronica R.S. BauerRobert W. Benjamin, Daniel L. Daniels, and Helen C. Heintz with Wiggin and Dana LLP.

For more articles on taxes, visit the NLR Tax section.

Get with The Program – China’s New Privacy Laws Are Coming

The People’s Republic of China (PRC) passed the Personal Information Protection Law (PIPL) on Friday the 20th of August 2021. The new privacy regime strengthens the protection around the use and collection of personal data and introduces a new requirement for user consent.

The PIPL, closely resembling the European Union’s General Data Protection Regulation, prevents the personal data of PRC nationals from being transferred to countries with lower standards of data security; a rule that may pose inherent problems for foreign businesses. The PIPL was introduced following an increase in online scamming and individual service price discrimination – where the same service is offered at different prices based on a user’s shopping profile. However, while businesses and some state entities face stronger collection obligations, the PRC state security department will maintain full access to personal data.

Although the final draft of the PIPL is yet to be released, the new law is set to commence on the 1st of November 2021. Companies will face fines of up to 50 million yuan ($7.6 million USD), or 5% percent of their annual turnover if they fail to comply. For an in-depth discussion of the Draft PIPL released in August 2020, see our K&L Gates publication here.

Ella Richards also contributed to this article.

Copyright 2021 K & L Gates

Article by Cameron Abbott with K&L Gates.
For more articles on international privacy law, visit NLR Section Cybersecurity Media & FCC.

Agencies and Regulators Focus on AML Compliance for Cryptocurrency Industry

This year, regulators, supported by a slate of new legislation, have focused more of their efforts on AML violations and compliance deficiencies than ever before. As we have written about in the “AML Enforcement Continues to Trend in 2021” advisory, money laundering provisions in the National Defense Authorization Act for fiscal year 2021 (the NDAA) expanded the number of businesses required to report suspicious transactions, provided new tools to law enforcement to subpoena foreign banks, expanded the AML whistleblower program, and increased fines and penalties for companies who violate anti-money laundering provisions. The NDAA, consistent with Treasury regulations, also categorized cryptocurrencies as the same as fiat currencies for purposes of AML compliance.

In addition, as discussed in the “Businesses Must Prepare for Expansive AML Reporting of Beneficial Ownership Interests” advisory, the NDAA imposed new obligations on corporations, limited liability companies, and similar entities to report beneficial ownership information. Although the extent of that reporting has not yet been defined, the notice of proposed rulemaking issued by FinCEN raises serious concerns that the Treasury Department may require businesses to report beneficial ownership information for corporate affiliates, parents and subsidiaries; as well as to detail the entity’s relationship to the beneficial owner. Shortly after passage of the NDAA, Treasury Secretary Janet Yellen stressed that the Act “couldn’t have come at a better time,” and pledged to prioritize its implementation.

Money laundering in the cryptocurrency space has attracted increased attention from regulators and the IRS may soon have an additional tool at its disposal if H.R. 3684 (the bipartisan infrastructure bill) is signed into law. That bill includes AML provisions that would require stringent reporting of cryptocurrency transactions by brokers. If enacted, the IRS will be able to use these reports to identify large transfers of cryptocurrency assets, conduct money laundering investigations, and secure additional taxable income. Who qualifies as a “broker,” however, is still up for debate but some fear the term may be interpreted to encompass cryptocurrency miners, wallet providers and other software developers. According to some cryptocurrency experts, such an expansive reporting regime would prove unworkable for the industry. In response, an anonymous source from the Treasury Department told Bloomberg News that Treasury was already working on guidance to limit the scope of the term.

In addition to these legislative developments, regulators are already staking their claims over jurisdiction to conduct AML investigations in the cryptocurrency area. This month, SEC Chair Gary Gensler, in arguing that the SEC had broad authority over cryptocurrency, claimed that cryptocurrency was being used to “skirt our laws,” and likened the cryptocurrency space to “the Wild West . . . rife with fraud, scams, and abuse” — a sweeping allegation that received much backlash from not only cryptocurrency groups, but other regulators as well. CFTC Commissioner Brian Quintez, for example, tweeted in response: “Just so we’re all clear here, the SEC has no authority over pure commodities . . . [including] crypto assets.” Despite this disagreement, both regulatory agencies have collected millions of dollars in penalties from companies alleged to have violated AML laws or BSA reporting requirements. Just last week, a cryptocurrency exchange reached a $100 million settlement with FinCEN and the CFTC, stemming from allegations that the exchange did not conduct adequate due diligence and failed to report suspicious transactions.

With so many governmental entities focused on combatting money laundering, companies in the cryptocurrency space must stay abreast of these fast-moving developments. The combination of increased reporting obligations, additional law enforcement tools, and heightened penalties make it essential for cryptocurrency firms to institute strong compliance programs, update their AML manuals and policies, conduct regular self-assessments, and adequately train their employees. Companies should also expect additional regulations to be issued and new legislation to be enacted in the coming year. Stay tuned.

©2021 Katten Muchin Rosenman LLP

Oregon Bans Home Buyers’ ‘Love Letters’ to Sellers

As a potential harbinger of the future, Oregon has become the first state in the nation to ban real estate “love letters.” The new law goes into effect January 1, 2022.

The State of Oregon passed a law (HB 2550), and it signed by Governor Kate Brown, that, among other things, states the following:

In order to help a seller avoid selecting a buyer based on the buyer’s race, color, religion, sex, sexual orientation, national origin, marital status or familial status as prohibited by the Fair Housing Act (42 U.S.C. 3601 et seq.), a seller’s agent shall reject any communication other than customary documents in a real estate transaction, including photographs, provided by a buyer.

What exactly is the Oregon legislature seeking to prevent a seller’s agent from communicating? The new law prohibits buyer’s agents from providing the seller’s agent with what is known as “love letters,” letters written by the buyer with the intent of wooing sellers to accept their offers. The use of such letters has become a common tactic to pull at sellers’ heartstrings, especially in a sellers’ market, where many buyers are bidding for a property (often significantly over the asking price).

The practice usually involves the buyers writing about how much they love the home, and how they imagine their family living there. However, these letters may include descriptive details and family photos, which could reveal protected characteristics, such as a person’s race, national origin, skin color, sex, religion, sexual orientation, familial status, or marital status. The rationale behind a ban like Oregon’s is that information in these letters could be used by the seller, whether consciously or not, and create potential unlawful biases in the seller’s decision-making process as to whose offer to accept.

Concerns over housing discrimination has been around for decades. Yet, recently, there have been increased federal, state, and local enforcement efforts directed toward eradicating it. The Oregon statute may represent a growing trend against these types of “love letters.” For instance, as The Real Deal reported, the National Association of Realtors and Ohio Realtors have issued warnings and frowned upon the practice. Whether other states and real estate industry groups will follow suit remains to be seen, but it sounds like the Oregon ban may not be the last.

Brokers should provide regular training to their agents and employees on housing discrimination issues and ways to avoid liability under fair housing laws that, among other things, increase awareness of how materials submitted in support of a home purchase offer like these kinds of letters might do more harm than good and open the door to claims of housing discrimination and bias.

Jackson Lewis P.C. © 2021

Article By Jeffrey M. Schlossberg and John A. Snyder of Jackson Lewis P.C.

For more articles on property law, visit the NLR Real Estate section.

Collapse of Afghanistan – Operational and Compliance Considerations

Measures to mitigate current foreseeable impacts

The unprecedented speed of the collapse of the former Afghan central government is a humanitarian tragedy. The magnitude of which is rightfully distracting from the immediate near-term and long-term legal issues that those who supported the coalition efforts in Afghanistan are compelled to address as the immediate human concerns fade from the spotlight.

In particular, U.S. government (USG) contractors are going to face a variety of legal implications from the events unfolding in Afghanistan — which will vary depending upon the existence of assets, facilities, contracts, or personnel in Afghanistan. This alert addresses several common issues arose over the last 72 hours in assisting clients that had operations in Afghanistan. This alert is by no means exhaustive of the issues that will be faced by those with assets, facilities, contracts, or personnel related to USG business in Afghanistan.

U.S. Sanctions

It is probable that the U.S. will issue economic sanctions in the very near term based on the likelihood of widespread human rights violations and atrocities. U.S. sanctions will likely be levied against the Taliban, known leaders of the Taliban, and entities owned or controlled by the Taliban – including former private businesses subjugated to Taliban control. Typically, there is a permissible wind-down/extraction period, but such a grace period may not be afforded with possible Afghanistan sanctions based on the terrorist history of the Taliban. As a result, USG contractors should consider terminating business and contacts with Afghan entities to be able to comply with U.S. sanctions if or when levied.

Recovery of Investments

Based on the departure of the president and other key officials of the now displaced Afghan central government, it is probable that former officials will make a claim that they remain the legitimate government of Afghanistan in exile (though the Biden administration is already offering to recognize the Taliban if they respect women’s rights – which is unlikely.) It is also probable that the same displaced officials transferred assets out of Afghanistan to mitigate risk in the event of an overthrow. If so, there will be competing claims against limited assets. As a result, it may be necessary to work to recover any funds, capitalization or guarantees tied to any Afghan entities as soon as practicable.

Shutdown of Afghan Entities

At this time, the Afghan Embassy in Washington, D.C., still appears to be operational and is reportedly using electronic platforms to continue consular processes. The U.S. State Department is also advising that its interactions with the Afghan Embassy in D.C. for business-related matters are continuing, though it is likely that such operations and processes will be impacted or even come to a halt based on the above observations. As a result, the ability to “legally” shutdown an Afghan legal entity via the U.S. Afghan Embassy will become increasingly difficult or unlikely.

USG contractors that don’t have any personnel, facilities or assets in Afghanistan could be relegated to shutting down Afghan operations by actions in the U.S. and documenting such for U.S. sanctions and export control compliance purposes. Such documentation may also be useful for reimbursement claims from the U.S. government (which could be proposed for those supporting USG directives in Afghanistan if the Afghan presence was to support USG actions). Such documentation may be helpful in supporting U.S. tax deductions for losses or costs related to the “forced” Afghan shutdown.

To effectuate and document the shutdown of Afghan operations by actions in the U.S., it may be necessary that the board of directors for any Afghan subsidiary and its direct U.S. parent resolve to shut down the Afghan business, regardless of the ability to effectuate such in Afghanistan or with the Afghan Embassy in D.C. It will be important to maintain records of such to document compliance with possible future U.S. sanctions or changes in U.S. export control requirements.

U.S. Export Control

USG contractors should also determine if there are any U.S. export licenses or Technical Assistance Agreements (TAAs) in place. If so, they may need to be terminated. If the U.S. origin items or information covered by such licenses or TAAs is in Afghanistan, and is either unrecoverable or otherwise compromised, then the U.S. exporter may need to make a voluntary disclosure of such. We recommend the retention of outside counsel to complete a proper attorney-client privileged assessment of the specific facts related to the exporter’s situation and covered items, as well as possible voluntary disclosure based on the Taliban’s act of war.

As noted, additional issues and considerations will likely arise as more information becomes available about the immediate near-term and long-term situation in Afghanistan. USG contractors and other U.S. entities with business, operations or connections to Afghanistan will need to be mindful of the real-time changes in Afghanistan and the U.S. and international responses, and be prepared to adapt and implement policies, procedures and controls to address such.

© 2021 Bradley Arant Boult Cummings LLP

O Say Can You See? Federal Courts Say Military Members Entitled to Paid Leave

This week, the federal appellate court in Pennsylvania ruled that workers who take leave to serve in the military must be paid for that time if their employers offer other forms of comparable short-term paid leave. The Third Circuit Court of Appeals held that paid leave is a “right and benefit” under the Uniformed Services Employment and Reemployment Rights Act (USERRA). That is, if an employer provides paid leave for some reasons (such as jury duty, bereavement, and illness), then it must also pay servicemembers who are on military leave.

The decision was issued in a case brought by a Navy reservist who sued his employer seeking regular wages for the time he spent on military leave. He claimed that his employer violated USERRA—the federal law granting job protections to those who serve in the military—by providing paid leave to employees for various reasons but not for military leave. The Court sided with the reservist, concluding that USERRA “does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”

The decision in the Third Circuit case is similar to a Seventh Circuit case from February in which a United Airlines pilot who served on reserve duty for the U.S. Air Force brought a class action lawsuit on behalf of himself and other pilots who took periodic unpaid leaves of absence to attend military training.

These decisions are only legally binding in Pennsylvania, New Jersey, Delaware, Illinois, Indiana, and Wisconsin. However, with consistent decisions by these two influential federal appellate courts, it is likely that courts nationwide will rule similarly in the inevitable future cases.

We are recommending that all employers begin reviewing their military leave policies and assess the benefits being provided to employees. That is, if you pay employees for some kinds of absences, you’ll likely need to pay for military leave as well.

©2021 Roetzel & Andress

Article By Monica L. Frantz of Roetzel & Andress LPA

For more articles on paid leave, visit the NLR Labor & Employment section.

The 4 Step Checklist to Ensure Your Law Firm Website is Mobile Friendly

Nearly everyone has a cell phone these days, and the vast majority of people use smartphones to search for the businesses and services they need. When potential clients are searching for you online from their phone, you need to be sure that your law firm’s website is mobile-friendly. Your website should be the go-to resource for your clients whether they are on desktop or mobile. Neglecting to optimize your website for mobile is one of the most common mistakes law firms make. Over half of all general website traffic comes from mobile, so that means if your site doesn’t load clearly or quickly, you’re losing business.  Here are four simple steps to ensure your law firm website is mobile-friendly.

Step 1: Check Your Website’s Mobile Responsiveness

The first thing you should do to find out whether your website is mobile-friendly is taking Google’s Mobile-Friendly Test. Google loves when you use its products. And when you make updates and changes to your website to accommodate the suggestions made by Google, it can only help your site.

One of the biggest issues law firms run into is their website’s mobile responsiveness. You might run into this problem if you wanted to include large images or videos that require Flash, for example. The good news is that making your web design responsive is a relatively easy fix. The website is coded so that the contents will automatically adjust to the length, width, and screen resolution of a mobile device. However, don’t be fooled. This could involve an entire redesign of your law firm’s structure and layout. Making the decision to go with a responsive web design can only benefit your website in the long run.

Step 2: Keep Your Web Design Clean and Simple

It can be tempting to go with a flashy web design that you think will make your law firm stand out amongst the competition. But if your web design is complicated or uses poor design elements, it can hurt your rankings and make your website respond poorly on mobile.

Arguably the most important aspect of a mobile-friendly website is its ability to load quickly. Users simply don’t have the time, patience, or inclination to wait for a page to load. And if they click out of your page before it has time to load, this can increase your bounce rate. To make sure that your web pages load quickly, avoid using large ads, fonts, and images. These are heavy files that will slow your website down and negatively affect your rankings on Google.

Content on your website should flow on the mobile screen so that the user doesn’t have to turn their phone into landscape mode to see the page’s content. Font style should be clean and the size shouldn’t be too large either.

Step 3: Make Sure Your Website is Easily Navigable on Mobile

If you want to give your prospective clients the best experience on your law firm’s website, make sure it’s easy to navigate. Little is more frustrating to an internet user than being unable to find the information they are looking for. If they can’t find navigation buttons or your CTA buttons are hard to click, it’s going to cause your user to click out of your page and look somewhere else— which could mean your competitor’s law firm if you don’t take the necessary steps.

Choose your menu style wisely. Will your clients prefer a tab pattern or hamburger menu? The hamburger button can be hard to find when you hide your navigation menu behind it. If this is an issue for your law firm website, opt for a drop-down menu, sidebar, or move your top nav to the bottom of the page.

Make your website stand out among your competing law firms by adding a search bar to your navigation. The ability to easily search for keywords your potential client is looking for is a great way to lead them directly to the content that will best serve their needs— and make them a client of yours.

Step 4: Don’t Block CSS Files, JavaScript, or Image Files

Blocking image files, CSS files, and JavaScript can have a negative impact on your website’s mobile performance. These media improve the functionality of your law firm’s web pages. When the files aren’t placed correctly, they can be blocked which can have a devastating impact on how fast your web page loads. Make sure these aren’t blocked by using the URL Inspection Tool in Google Search Console.

© 2021 Denver Legal Marketing LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

A Simple Guide to Legal Website Hosting

There has been a surge in the number of potential clients searching for legal services online.  74% of all potential clients visit a law firm’s website to take action.  Any law firm that wants more incoming clients needs to be online. Every firm without a high-quality website is losing leads because relying on word of mouth lead generation is no longer an option. Legal website hosting basics are essential for every firm to know – from choosing a hosting platform to search engine optimization.

What is website hosting?

Website hosting is renting or purchasing space on a server to host a website.  All of the images, content, and code that make a website is stored in this space– which is then accessible through the World Wide Web.  To better understand it, think of website hosting like online real estate. People rent or buy a home to live in and that home is attached to an address so it can be found.

But with web hosting, a website’s address is called a domain name or URL (uniform resource locator). Then that URL is connected to the server space, using DNS (domain name system). Once it’s all connected, search engines index the site, then it’s accessible on the internet.

Fortunately, setting up hosting doesn’t have to be as complicated as it sounds. Many hosting platforms simplify the process or even set it up for the site owner.

When it comes to hosting platforms, there are many options to consider. Each platform offers multiple plans with varying features. Deciding which is the right one should be based on a few different factors.

Purpose and planning

Every hosting service has different capabilities, features, and services. That’s why deciding the purpose of the site is an essential first step.

So, consider what the site will need to do before looking into hosting services. Will it need to host multiple email inboxes for lawyers?  How many pages does it need to host?

Another thing to think about is the goal when a prospect lands on the page. This should help answer some of the questions above. Knowing this information will also help when choosing a hosting plan.

Build or buy a site

One of the next things to consider is who will build and maintain the site. For do-it-yourselfers, ease of use should be a priority. Most hosts provide some sort of website builder in the hosting plan. However, these site builders all vary immensely in how easy they are to use. Some simplify the process so anyone can quickly build an aesthetically pleasing site. Others cater to the technically inclined and require coding in HTML.

There are even some drag-and-drop site builders available. Some products, like WordPress, utilize plug-ins that can change the building interface. Services like that make the process more user-friendly for novices.

Depending on what the site needs to do, the possibilities are limitless.

How to set up hosting

The next issue is deciding how to set up the hosting. Just like with building the website, hosting set up varies by platform.

Most domain name sellers like GoDaddy and NameCheap also offer hosting. Although the platform is typically more limited, the DNS and domain are connected as part of the purchase.  As such, the simplest way to set up hosting is to purchase it when buying a domain name. This option is ideal for do-it-yourselfers because of the ease and convenience. All the complicated setup is completed, leaving only the page build to handle.

The other option is using an independent hosting service such as BlueHost or HostGator. This option leaves the site owner to attach the hosting space and domain. It isn’t extremely complicated to do, but it is a more hands-on setup than GoDaddy or NameCheap. YouTube has countless tutorials and walkthroughs that simplify the process.

This host setup is primarily ideal for people with time, skill, or tech interests. The main upside to hosting companies like this is storage and features. These companies offer more features, optimizations, site security, and storage than other domain sellers do.

Plans and cost

No matter which hosting option you choose, they all offer a wide selection of prices. Your firm should base this decision on your needs, features, and overall budget. Website hosting prices can vary drastically for standard service and the more advanced types, like dedicated hosting, can be very costly.  Fortunately, most platforms offer lower rates to first-time customers.

However, cost should never be the deciding factor when selecting a plan or type of hosting. It all comes down to what best suits your firm’s needs.

Plan options

There are different hosting plans intended to cater to different needs. This is why knowing the purpose and needs of the site is essential. Most hosting plans include a set amount of storage on the server, but that storage is shared by the site’s pages, photos, and content. Then storage is further used up by email inboxes for people in the organization. So, the larger an organization is, the larger the required storage.

Depending on the hosting service provider, there are many optimizations available.  Some providers may include some optimizations in the hosting package. Others offer them as addons for an additional fee.

Search engine optimization

Search engine optimization (SEO) improves a website’s location in search query results. By improving it, a website climbs closer to the top of the search results. The higher on the list a site is, the more traffic it receives.

Good SEO ranking is crucial in lead attraction, but when it comes to SEO, not all hosting services are created equal. Some even limit a website’s ranking, making SEO an important consideration when choosing a hosting platform.

There is a lot to consider when choosing a legal website hosting service. No two platforms are built the same, so it’s important to identify what your law firm’s specific needs are in a website and use that to guide your decision. You’ll also need to consider skill level and the amount of time you have for setup.

With this guide and a clear plan of your firm’s needs, you’ll be on your way to holding a domain in the digital space.

© Copyright 2021 PracticePanther

Article By PracticePanther

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Is it Secret, Is it Safe? What Employers Need to Know About the California Privacy Rights Act

In most contexts, employees should have a low expectation of privacy in the workplace. Their computers, desks, and other common areas may be subject to strict company control and their conduct subject to workplace policies. There are many aspects of employee privacy and related laws, of which California employers must be aware. One such area with rapidly approaching deadlines, is the California Privacy Rights Act (“CPRA”).

In November 2020, Californians voted in favor of the CPRA, further expanding employee and consumer privacy rights for California residents. Following consumer privacy trends like Europe’s Global Data Privacy Regulation, California has been on the move to enhance privacy, not just for consumers, but for employees. The CPRA amends the California Consumer Privacy Act (“CCPA”), which the California legislature passed in 2018 and went into effect January 1, 2020. Unlike the CCPA, which was amended in 2019 to have a limited application to employees, job applicants and independent contractors, the CPRA will extend various individual rights to employees, job applicants and independent contractors. Consequently, employers subject to the CPRA will need to start preparing in the near future to ensure they have the necessary procedures, policies and contract amendments in place by the CPRA’s January 1, 2023 effective date.

What Is the CCPA?

In general, the CCPA was enacted to enhance the privacy rights of California residents by providing them with notice of how their personal information is being processed, the purpose for such processing, and allowing them greater control of their personal information. While the CCPA provides California residents the right to access, to deletion and to opt-out of “sales” of their personal information, it did not extend most of these rights to California employees. It did, however, expand employee rights in two significant ways: (1) it requires mandatory privacy notices and disclosures about the data collected by employers and purpose for collection; and (2) it provides for statutory damages ranging from $100 to $750 if certain personal information is breached. Further, the CCPA requires businesses to have “reasonable security procedures and practices” in place to protect their California employees’ personal information.

Which Employers Are Subject to the CPRA?

The CPRA amends the CCPA’s definition of a covered “business” to minimize its impact on small to medium sized businesses. The CPRA applies to for-profit organizations that collect personal information on California residents, determine the purposes and means of processing the personal information, do business in California and satisfies one of the following thresholds:

  1. as of January 1, had annual gross revenues in excess of $25 million in the preceding calendar year; or
  2. buys, sells or shares the personal information of at least 100,000 California consumers or households; or
  3. derives at least fifty percent of its annual revenue from selling or sharing consumers’ personal information.

It is important to note that an employer does not need to have a physical location in California to be subject to the CPRA, but rather it must only satisfy the definition above.

What Is the CPRA and How Does It Impact the CCPA?

The CPRA materially amends the CCPA by adding a number of provisions to expand employee privacy rights. However, like the CCPA, the CPRA does not apply to personal information collected from an individual acting as a job applicant, an employee, owner, director, officer, staff member or contractor, with regard to benefits administration and maintenance of emergency contact information.

New Business Definition. Although it contains many of the same definitions as the CCPA, the CPRA changes one of the thresholds for an entity to meet the definition of a “business” subject to the law – in that it changes threshold from 50,000 to 100,000 or more consumers or households, and removes devices from the threshold.

Sensitive Personal Information Definition. The CPRA includes “sensitive personal information” as a defined term and requires businesses provide notice to employees when such information is processed, the purposes for the processing, whether the information will be sold or shared, and the length of time the business intends to retain each category of sensitive personal information. The term is broadly defined to include social security and driver’s license numbers, financial account information, credit card numbers, account passwords, geolocations, genetic data, biometric information, records of products purchased, internet browsing history, and content of emails and text messages. See Cal. Civ. Code §1798.140(ae).

Individual Rights. The CPRA also provides for new and modified individual rights, which impact employees. It imposes restrictions and requirements on personal information, including disclosure requirements, opt-out requirements, opt-in consent for use and disclosure, and limitations on purposes for which information may be used. For example, the CPRA includes a right to correction, whereby consumers may request corrections to personal information if it is inaccurate. It provides a right to opt out of the use of automated decision-making technology (including profiling in connection with decisions related to work performance, economic status, health, personal preferences, location or movements). It also provides the right to restrict or limit the use and disclosure of sensitive personal information for secondary purposes, such as prohibiting businesses from disclosing certain information to third parties.

Flow-down Provisions. The CPRA also contains flow-down provisions that require employers to understand how third parties use, share and secure consumer data. Employers should identify third parties and vendors that receive their employee or applicant personal information (e.g., payroll companies, health/benefits/wellness providers, HR consultants, staffing agencies, etc.) and conduct vendor inquiries and diligence about how those third parties use, share and secure the employee personal information. The CPRA requires businesses with such vendors to enter agreements to ensure compliance with the CPRA, including the right to, upon notice, take reasonable steps to remediate unauthorized use of personal information.

Data Retention. The CPRA requires businesses to inform California residents of the length of time they will retain each category of personal information and sensitive personal information or the criteria used to determine that period.

Expanded Right of Action for Breach of Login Credentials. Moreover, the CPRA expands the types of data breaches for which a California resident can recover statutory damages to include breaches of personal online login credentials (such as passwords or security questions that permit access to an online account). The existing right to recover statutory damages, particularly when coupled with this expansion, provides covered employers a strong incentive to enhance their security measures.

Yeah, But, What if We Don’t Comply?

Failure to comply with the CCPA (and later the CPRA) can carry significant fines. The CCPA currently charges the Office of the Attorney General (OAG) with issuing regulations and enforcing the CCPA. The OAG can bring civil actions to enforce the law and impose penalties up to $7,500 for intentional violations and $2,500 for unintentional violations. The CCPA also contains a private right of action, allowing for $100 to $750 in damages for each incident of breach. These penalties can add up quickly, particularly in a class action context. There is, however, a 30-day cure period in which an employer can cure a violation and provide an express written statement that the violation has been cured, to avoid penalties. Cal. Civ. Code §§1798.150(b); 1798.155(b).

Under the CPRA, the 30-day cure period no longer applies to general violations of the law, but rather only as a means of preventing individual or class-wide statutory damages as part of a private right of action for security violations. In addition, the CPRA creates a new enforcement mechanism and establishes the California Privacy Protection Agency (CPPA). The CPRA expands rulemaking and enforcement power to the CPPA, which includes the authority to require businesses to submit annual privacy and security risk assessments and to audit those assessments. The CPPA will be governed by a five-member board, which was appointed in March.

When Does the CPRA Go into Effect?

The CPRA will become operative on January 1, 2023, and enforcement actions are slated to begin on July 1, 2023. However, it is important to recognize that the CPRA includes a one year “look back provision” which requires that when a business receives a request on January 1, 2023 (the day the law goes into effect), it must be prepared to provide responsive information going back to January 1, 2022. With these deadlines looming, California employers should prepare their CPRA compliance workplans as soon as possible, and begin taking the necessary steps to come into compliance.

How Do Employers Prepare for the CPRA?

It will take most businesses at least 12 months to become substantially compliant with the CPRA. With the CCPA already in place, employers should already be on the move to update their privacy compliance practices. However, below is a checklist to help build effective privacy and security programs to prepare for the CPRA:

  • Determine if your organization is a covered business under the CPRA.
  • Create a team consisting of members from HR, Legal, Compliance and IT to lead your CPRA compliance project.
  • Map and classify personal information and identify sensitive personal information.
  • Revise (or develop) workforce disclosures to include new definitions and rights.
  • Develop workforce request workflows for rights to access, correct, opt-out of sharing and sales, and delete personal information.
  • Put in place contractual provisions with workforce vendors including diligence and contractual indemnity.
  • Develop, enforce and audit document retention policies.

Although new rulemaking may impact the exact confines of the CPRA, employers should create a plan now and start to take the necessary steps to come into compliance as 2023 will soon be upon us.

©2021 Greenberg Traurig, LLP. All rights reserved.

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