Whistleblower Rewarded Over $2 Million for Exposing Contractor of Military Helicopters That Provided Unsafe Helicopters, Risking the Lives of Military Members Deployed to War Zones

An Illinois-based aviation services company and its subsidiary in Florida have agreed to pay the government $11,088,000 to resolve allegations that they violated the False Claims Act by breaching their contract to maintain military aircraft that were “fully mission capable.”

The aviation service companies own and maintain helicopters.  They had contracted with the Department of Defense to supply helicopters for use in transporting cargo and personnel in support of missions in Afghanistan and Africa.  However, according to a whistleblower, the aviation companies schemed to maximize profits by failing to provide the resources needed to maintain the helicopters.  This resulted in the helicopters not being airworthy.  Yet, the companies continued to certify the helicopters as “fully mission capable.”  Thus, it was alleged, the companies knowingly risked the lives of military personal who were using the aircraft while deployed in war zones and committing fraud against U.S. taxpayers.

The same companies also paid an additional amount to resolve a separate matter brought by the Federal Aviation Administration (FAA) against them for deficiencies in helicopter maintenance work.

This lawsuit originated from a former employee of the aviation service companies who brought suit under the qui tam, or whistleblower, provisions of the False Claims Act. Whistleblower lawsuits allow private parties, known as “relators,” to bring suit on behalf of the government and to share in any recovery, usually 15% to 25% of the settlement amount.  In this case, the whistleblower will receive $2,162,160.  The False Claims Act allows the government to intervene and prosecute an action, as it did in this case.  Fraud in government contracting is often exposed by individuals with knowledge that the fraud is occurring, as in this case. Whistleblowers may be employees, clients, or competitors of the wrongdoer.  Such individuals can use their inside knowledge to bring fraud to the attention of the government, saving lives and protecting taxpayer money.


© 2021 by Tycko & Zavareei LLP

CDC Changes Masking Guidance for Fully Vaccinated Individuals

The Centers for Disease Control (CDC) announced on July 27, 2021 that it will adjust its advice to recommend that vaccinated people in substantial or high transmission areas of COVID-19 (defined below) wear masks in indoor public spaces. This guidance will substantially alter the CDC’s May 13 guidance that largely exempted fully vaccinated individuals from the indoor mask requirement. There has been no change in the outdoor masking recommendations at this time. In changing its masking recommendations, the CDC asserts that current scientific information indicates that the delta variant can be spread despite vaccine status, warranting an adjustment to its prior guidance.

Below is a summary of the updated guidance based on the media telebriefing:

  • In public indoor settings in areas of substantial or high transmission, all are to wear masks – including fully vaccinated individuals.
  • All individuals in K-12 schools must wear a mask, regardless of vaccination status, including teachers, staff, and visitors.
  • There should be a continuing effort to strongly encourage vaccination to reduce the spread of COVID-19, including the delta variant.
  • Community leaders should encourage universal masking and vaccination nationwide, regardless of whether or not in a substantial or high transmission area.

Despite the updated guidance, CDC Director Dr. Rochelle Walensky emphasized that wearing a mask is a “personal choice” and no “stigma” should attach to the decision whether or not to wear a mask. Moreover, Dr. Walensky acknowledged that the renewed indoor masking requirement would “weigh heavily” with individuals who are already fully vaccinated. The White House has not provided additional comment on the CDC guidance as of this writing.

The definition of a substantial or high transmission area is based on the CDC’s COVID-19 Data Tracker, which tracks the level of community transmission by county nationwide. Notably, the updated guidance does not apply to areas of moderate or low transmission.

While the CDC guidance is not mandatory, employers are advised to evaluate their workplace policies to determine the extent to which it may be prudent to alter workplace masking requirements. Additionally, states and cities are free to institute their own legally binding masking requirements, regardless of the CDC guidance. Employers are advised to closely monitor state and local developments. We also note that it is unclear what, if any, impact the CDC guidance will have on OSHA’s recent healthcare emergency temporary standard for healthcare employers or its enforcement of its safe workplace standards.


©2021 von Briesen & Roper, s.c

Article By John A. Rubin and Robert J. Simandl at von Briesen & Roper, s.c.

For more CDC COVID-related guidelines, see the National Law Review Coronavirus News section.

Will Louisiana’s New Laws for Self-Driving Delivery Devices Prevent Accidents?

Retail chains, grocery stores, and restaurants have been actively developing methods to deliver products faster. With inventions like self-driving cars and drones, it was only a matter of time before delivery services took advantage. But with any new technology comes safety concerns.

Republican Sen. Rick Ward sponsored a new bill to outline how driverless delivery devices are allowed to operate on Louisiana streets. Governor John Bel Edwards signed the bill and it went into effect immediately. With these new laws in place, Louisiana lawmakers hope to keep motorists and pedestrians safe as they share travel alongside self-driving delivery devices.

Self-Driving Technology

Self-driving cars have been in the works since the 1920s. Carnegie Mellon University’s Navlab and ALV projects built a computer-controlled vehicle in 1984. Since then autonomous technology has expanded to other devices to serve various markets.

Autonomous Cars

When most people think of self-driving technology, they think of autonomous cars. This type of self-driving machine can go long distances and carry larger cargo. Autonomous cars typically transport people while vans may transport smaller self-driving bots.

Surprisingly, the largest safety risk posed to autonomous cars is human unpredictability. The vehicles are programmed to obey strict safety guidelines along with the rules of the road. In theory, that should be adequate to ensure safety. In reality, these vehicles are bullied by human motorists who drive aggressively.

Drones

The first modern drone was developed in 1935. These small, unmanned aircrafts transformed from military equipment to personal aerial cameras. In June 2021, Kroger became the next company to utilize self-driving devices by launching their first drone flight to deliver groceries.

Airborne drones can fly over traffic jams or obstructions. This would allow them to make deliveries in rural areas that traditional delivery trucks cannot reach. Potential complications arise from privacy issues and Federal Aviation Administration (FAA) regulations.

Last-Mile Bots

Last-mile bots, also known as ground drones, are typically small robots that travel short distances. They may cross streets but otherwise tend to remain on sidewalks as they complete a delivery’s last leg of the journey. These robots are designed to navigate sleep inclines, curbs, and unpaved surfaces.

The biggest limitation of last-mile bots is the size and weight of the deliveries they can carry. Severe weather may also pose challenges. Companies like DoorDash and Postmates successfully use last-mile bots to make multiple short deliveries that delivery drivers typically don’t want to accept.

Louisiana’s New Laws for Self-Driving Delivery Devices

As new technologies emerge, so do new laws to govern their usage. Under Louisiana’s Senate Bill 147, self-driving delivery devices must move at low speeds. They cannot exceed 20 miles per hour. They are limited to 12 miles per hour in pedestrian areas, which is roughly the speed of a person jogging.

These autonomous delivery robots must yield to pedestrians. They cannot obstruct the flow of traffic. They must also be equipped with lights on the front and rear.

The companies utilizing robot delivery must ensure each vehicle carries at least $100,000 insurance coverage. Additionally, these devices are not permitted to transport hazardous materials.

Are Self-Driving Delivery Devices Safe?

Due to the high standards of robotics developers, driverless vehicles are generally safer than cars with human drivers. Safety is paramount, since according to a car accident lawyer in New Orleans, nearly 14% of Louisiana drivers don’t have auto insurance.

Louisiana’s new laws aim to prevent accidents both to motorists and pedestrians. Multiple states have passed similar legislation to protect people sharing space with these vehicles. However, Louisiana’s bill permits governing officials and airport authorities to establish additional laws or ban self-driving delivery devices if they pose a danger to public safety in the future.

Who Is Liable When a Self-Driving Delivery Vehicle Causes an Accident?

At this time, no delivery vehicles that are 100% automated are in use, so there are no laws or regulations to determine who would be liable in an accident. However, if there were an accident involving a self-driving delivery vehicle and it could be proven that the vehicle’s operators were negligent, in theory, they would be legally liable.

There are several ways a company’s negligence could lead to an accident. For example, they could fail to maintain the vehicle or to perform critical software updates. Just as with any other type of vehicle on the road, self-driving delivery vehicles can and will get into accidents. When it happens, expect to see increased regulations and lawsuits.


© Laborde Earles Law Firm 2021

CPSC Sues Amazon to Force Recall of Hazardous Products Sold on Amazon.com

The U.S. Consumer Product Safety Commission (CPSC) announced on July 14, 2021, that it filed an administrative complaint against Amazon.com, “the world’s largest retailer, to force Amazon to accept responsibility for recalling potentially hazardous products sold on Amazon.com.” CPSC claims that the specified products sold through Amazon’s “fulfilled by Amazon” (FBA) program are defective and pose a risk of serious injury or death to consumers and that Amazon is legally responsible to recall them. According to the complaint, the products include “24,000 faulty carbon monoxide detectors that fail to alarm, numerous children’s sleepwear garments that are in violation of the flammable fabric safety standard risking burn injuries to children, and nearly 400,000 hair dryers sold without the required immersion protection devices that protect consumers against shock and electrocution.”

CPSC filed the complaint under the Consumer Product Safety Act (CPSA). According to the complaint, Amazon acts as a “distributor,” as defined by CPSA, of its FBA products by: (a) receiving delivery of FBA consumer products from a merchant with the intent to distribute the product further; (b) holding, storing, sorting, and preparing for shipment FBA products in its warehouses and fulfillment centers; and (c) distributing FBA consumer products into commerce by delivering FBA products directly to consumers or to common carriers for delivery to consumers.

The complaint states that after CPSC notified Amazon about the hazards presented by the specified products, Amazon took “several unilateral actions,” including:

  • Removing the Amazon Standard Identification Numbers (ASIN) for certain of the specified products; and
  • Notifying consumers who purchased certain of the specified products that they could present a hazard. Amazon also offered a refund to these consumers in the form of an Amazon gift card credited to their account.

According to the complaint, these actions “are insufficient to remediate the hazards posed by the Subject Products and do not constitute a fully effectuated Section 15 mandatory corrective action ordered by” CPSC. The complaint states that “[a] Section 15 order requiring Amazon to take additional actions in conjunction with the CPSC as a distributor is necessary for public safety.” The complaint asks CPSC to:

  1. Determine that Amazon is a distributor of consumer products in commerce, as those terms are defined in the CPSA;
  2. Determine that the specified products are substantial product hazards under CPSA Sections 15(a)(1), 15(a)(2), and 15(j);
  3. Determine that public notification in consultation with CPSC is required to protect the public adequately from substantial products hazards created by the specified products, and order Amazon to take actions set out in CPSA Section 15(c)(1), including but not limited to:
    1. Cease distribution of the specified products, including removal of the ASINs and any other listings of the specified products and functionally identical products, from Amazon’s online marketplace and identifying such ASINs to CPSC;
    2. Issue a CPSC-approved direct notice to all consumers who purchased the specified products that includes a particularized description of the hazard presented by each specified product and encourage the return of the specified product;
    3. Issue a CPSC-approved press release, as well as any other public notice documents or postings required by CPSC staff, that inform consumers of the hazard posed by the specified products and encourage the return or destruction of the specified products;
  4. Order that Amazon facilitate the return and destruction of the specified products, at no cost to consumers, to protect the public adequately from the substantial product hazard posed by the specified products, and order Amazon to take actions set out in CPSA Section 15(d)(1), including but not limited to:
    1. Refund the full the purchase price to all consumers who purchased the specified products and, to the extent not already completed, conditioning such refunds on consumers returning the specified products or providing proof of destruction;
    2. Destroy the specified products that are returned to Amazon by consumers or that remain in Amazon’s inventory, with proof of such destruction via a certificate of destruction or other acceptable documentation provided to CPSC staff;
    3. Provide monthly progress reports to reflect, among other things, the number of specified products located in Amazon’s inventory, returned by consumers, and destroyed;
    4. Provide monthly progress reports identifying all functionally equivalent products removed by Amazon from amazon.com pursuant to the CPSC Order, including the ASIN, the number distributed prior to removal, and the platform through which the products were sold;
  5. Provide monthly reports summarizing the incident data submitted to CPSC through the Retailer Reporting Program;
  6. Order that Amazon is prohibited from distributing in commerce the specified products, including any functionally identical products; and
  7. Order that Amazon take other and further actions as CPSC deems necessary to protect the public health and safety and to comply with CPSA and the Flammable Fabrics Act (FFA).

CPSC “urges consumers to visit SaferProducts.gov to check for recalls prior to purchasing products and to report any incidents or injuries to the CPSC.” CPSC published the complaint in the July 21, 2021, Federal Register. 86 Fed. Reg. 38450.

Commentary

In CPSC’s July 14, 2021, press release, Acting Chair Robert Adler states that the decision to file an administrative complaint is “a huge step across a vast desert — we must grapple with how to deal with these massive third-party platforms more efficiently, and how best to protect the American consumers who rely on them.” According to The Washington Post, CPSC issued the administrative complaint “after months of behind-the-scenes negotiations between regulators and Amazon as the agency tried to persuade the company to follow the CPSC’s rules for getting dangerous products off the market, according to a senior agency official who spoke on the condition of anonymity to comment on internal discussions.” This same official stated that “Amazon officials refused to acknowledge that the CPSC has the authority to compel the company to remove unsafe products.”

As reported in our February 16, 2018, blog item, “EPA Settles with Amazon on Distribution of Unregistered Pesticides,” the U.S. Environmental Protection Agency (EPA) and Amazon entered into a Consent Agreement and Final Order (CAFO) whereby Amazon agreed to pay $1,215,700 in civil penalties for approximately 4,000 alleged violations under Section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for the distribution of unregistered pesticide products. EPA later issued stop sale, use, or removal orders (SSURO) to Amazon and eBay for selling certain pesticide products that EPA claims are unregistered, misbranded, or restricted-use pesticides, and pesticide devices that EPA asserts make false or misleading claims. More information on the SSURO is available in our June 17, 2020, blog item, “EPA Issues Stop Sale, Use, or Removal Orders to Amazon and eBay for Unregistered and Misbranded Pesticides and Devices, Including Products with Claims Related to COVID-19.”

As reported in our October 9, 2020, blog item, Representatives Frank Pallone, Jr. (D-NJ), Chair of the House Committee on Energy and Commerce, and Jan Schakowsky (D-IL), Chair of the House Energy and Commerce Subcommittee on Consumer Protection and Commerce, requested that Amazon Chief Executive Officer (CEO) and Chair Jeff Bezos launch an investigation into the safety of Amazon’s product line, AmazonBasics, and answer a series of questions pertaining to the company’s product safety and recall practices. The Committee’s October 7, 2020, press release notes that the request comes after a CNN investigation found that many of AmazonBasics’ electronic products “have exploded, caught fire, sparked, melted, or otherwise created hazardous situations at rates well above comparable products.” According to the press release, many of these products were never recalled and continue to be sold.

CPSC’s administrative complaint is just the latest indication of the pressure on Amazon to ensure the safety of the products the platform hosts. These federal agency and Congressional efforts will almost certainly cause more pressure on product manufacturers to ensure the products they offer for sale on Amazon are compliant with the relevant regulations.


©2021 Bergeson & Campbell, P.C.

Article By Lynn L. Bergeson, Lisa M. Campbell and Carla N. Hutton at Bergeson & Campbell, P.C. For more CPSC news, see the Consumer Protection section of the National Law Review.

Iced Out: Use of Ice Cube’s Image and Catchphrase Was Not Endorsement

Rapper and actor O’Shea Jackson, professionally known as Ice Cube, lost his day in court (for now) on claims of false endorsement against trading platform Robinhood because he failed to plausibly allege that Robinhood’s use of his image and catchphrase implied endorsement.  Robinhood had published a newsletter on its website “Robinhood Snacks” which featured an article discussing market corrections for technology stocks with an alteration of Ice Cube’s lyric and catchphrase “Check yo self before you wreck yourself”—here, “Correct yourself before you wreck yourself”—along with the below image of Ice Cube from Are We Done Yet? (2007):

In response, Ice Cube filed a complaint in the U.S. District Court for the Northern District of California, alleging that Robinhood’s article falsely implied that he had endorsed Robinhood and its services.  He claimed false endorsement under the Lanham Act as well as misappropriation of likeness and unfair competition under California law.  Robinhood filed a motion to dismiss the complaint for lack of standing and a motion to strike the state law claims under California’s Anti-SLAPP statute as protected speech.

As noted by the court, to establish standing a plaintiff must demonstrate an “injury in fact,” meaning the plaintiff suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  Citing Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992), the court further held that “a celebrity whose endorsement of a product is implied through the imitation of a distinctive attribute of the celebrity’s identity, has standing to sue for false endorsement” under the Lanham Act.

While the court acknowledged that a celebrity could establish standing under Waits, Robinhood argued that Ice Cube failed to plausibly plead (1) his celebrity status, (2) he was deprived of compensation, and (3) use of his identity and catchphrase implied endorsement.

In ruling on the motion to dismiss, the court found that Ice Cube sufficiently pleaded celebrity status.  It discredited Robinhood’s argument that Ice Cube lacked such status because he relied on his music in the 1980s and movies in the 1990s.  The court questioned why Robinhood would have used Ice Cube’s image and catchphrase in the first place if he had no status as a celebrity.  The court also found that Ice Cube robustly alleged he had commercialized his celebrity status and therefore adequately pleaded economic injury.

In the end, however, the court held that Ice Cube did not plausibly plead that the use of his likeness or catchphrase suggested he endorsed Robinhood’s products.  Although Ice Cube cited Robinhood’s other celebrity endorsements from rappers Nas and Jay-Z, the court found those endorsements were irrelevant.  It also contrasted Robinhood’s use of his likeness and catchphrase with other cases cited by Ice Cube, which all involved explicit endorsements.  Furthermore, without explaining the distinction, the court noted that the article was part of a newsletter, not an “advertisement” as Ice Cube claimed, and that under such circumstances no other court had found standing.  Thus, the court concluded that Ice Cube lacked standing because “he did not allege how Robinhood’s use of his identity created the misapprehension that the plaintiff sponsored, endorsed, or is affiliated with Robinhood.”

Although the court granted Robinhood’s motion to dismiss, it allowed Ice Cube to amend his complaint, which he amended and refiled on July 6, 2021.   Whether Ice Cube has now plausibly pleaded endorsement remains to be seen.

The case is Jackson v. Robinhood Markets, Inc., No. 21-CV-02304-LB (N.D. Cal. June 15, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

For more articles on trademark misappropriation, visit the NLR Communications, Media & Internet section.

FBI Issues Cyber Attack Alert Against Tokyo Olympics Service Providers

On July 19, 2021, the Federal Bureau of Investigations issued a Private Industry Notification to service providers and “entities associated with the Tokyo 2020 Summer Olympics that cyber actors who wish to disrupt the event could use distributed denial of service (DDoS) attacks, ransomware, social engineering, phishing campaigns, or insider threats to block or disrupt live broadcasts of the event, steal and possibly hack and leak or hold hostage sensitive data, or impact public or private digital infrastructure supporting the Olympics.”

According to the Notification, “Malicious activity could disrupt multiple functions, including media broadcasting environments, hospitality, transit, ticketing, or security.”

The Notification points out that large events attract extra attention from cybercriminals and nation-state actors such as the attacks during the 2018 PyeongChang Winter Olympics. The FBI indicted Russian-based actors for intrusions during the Winter Olympics, including one that disrupted the Opening Ceremony.

The FBI encourages “service providers and other relevant partners to maintain business continuity plans to minimize essential service interruptions, as well as preemptively evaluate potential continuity and capability gaps…the FBI encourages regularly monitoring networks and employing best practices.” The Notification then provides details on what those best practices are.

Frankly, the list of best practices provided by the FBI are best practices for all companies, including those supporting the Tokyo Olympics.

Copyright © 2021 Robinson & Cole LLP. All rights reserved.

For more articles on cybersecurity, visit the NLRCommunications, Media & Internet section.

Don’t Count Your Lamborghinis Before Your Trademark is in Use

The US Court of Appeals for the Ninth Circuit affirmed a grant of summary judgment, finding that a trademark registrant had alleged infringement of its trademark without having engaged in bona fide use of the trademark in commerce, as required by the Lanham Act. The Court found no material issue of fact as to whether the registrant had used the mark in commerce in a manner to properly secure registration, and the alleged infringer therefore was entitled to cancellation of the registration. Social Technologies LLC v. Apple Inc., Case No. 320-15241 (9th Cir. July 13, 2021) (Restani, J., sitting by designation)

This dispute traces back to a 2016 intent-to-use US trademark application filed by Social Technologies for the mark MEMOJI in connection with a mobile phone software application. After filing its application, Social Technologies engaged in some early-stage activities to develop a business plan and seek investors. On June 4, 2018, Apple announced its own MEMOJI software, acquired from a third party, that allowed users to transform images of themselves into emoji-style characters. At that date, Social Technologies had not yet written any code for its own app and had engaged only in promotional activities for the planned software.

Apple’s MEMOJI announcement triggered Social Technologies to rush to develop its MEMOJI app, which it launched three weeks later (although system bugs caused the app to be removed promptly from the Google Play Store). Social Technologies then used that app launch to submit a statement of use for its trademark application in order to secure registration of the MEMOJI trademark. The record also showed that over the course of those three weeks, Social Technologies’ co-founder and president sent several internal emails urging acceleration of the software development in preparation to file a trademark infringement lawsuit against Apple, writing to the company’s developers that it was “[t]ime to get paid, gentlemen,” and to “[g]et your Lamborghini picked out!”

By September 2018, Apple had initiated a petition before the Trademark Trial & Appeal Board to cancel Social Technologies’ MEMOJI registration. Social Technologies responded by filing a lawsuit for trademark infringement and seeking a declaratory judgment of non-infringement and validity of its MEMOJI registration. When both parties moved for summary judgement, the district court determined that Social Technologies had not engaged in bona fide use of the MEMOJI trademark and held that Apple was entitled to cancellation of Social Technologies’ registration. Social Technologies appealed.

Reviewing the district court’s grant of summary judgment de novo, the Ninth Circuit framed its analysis under the Lanham Act’s use in commerce requirement, which requires bona fide use of a mark in the ordinary course of trade and “not merely to reserve a right” in the mark. The issue on appeal was whether Social Technologies used the MEMOJI mark in commerce in such a manner to render its trademark registration valid.

The Ninth Circuit then explained the Lanham Act’s use in commerce requirement, which requires “use of a genuine character” determined by the totality of the circumstances (including “non-sales activity”), and explained that mere adoption of a trademark, without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark. The Court reviewed supporting case law, distinguishing between cases where mere promotional activities or internal sales were determined not to constitute use in commerce, and cases where continuous use of a mark as a business name, in public relations campaigns, in sales presentations and in media coverage together sufficiently established bona fide use in commerce. The Court explained that looks for “external manifestation” and “sufficiently public use” to warrant trademark protection.

On the facts of the case before it, the Ninth Circuit found that the record evidence clearly demonstrated that Social Technologies’ use of the MEMOJI mark had not been bona fide use in commerce. With respect to its activities prior to Apple’s June 2018 MEMOJI announcement (which included no software code, the unsuccessful solicitation of investors, and no “association among consumers between the mark and the mark’s owner”), there was not sufficient use to entitle Social Technologies to trademark protection. The Court found that Social Technologies failed to put forward evidence that its admittedly rushed release of the software following Apple’s 2018 announcement was for a genuine commercial purpose warranting trademark protection, rather than mere “token use” in an attempt to reserve a right in the mark.

Affirming the district court’s grant of summary judgment, the Ninth Circuit concluded that Social Technologies did not engage in bona fide use of the MEMOJI trademark in commerce, that its registration was invalid, and that Apple was entitled to cancellation of Social Technologies’ MEMOJI registration.

© 2021 McDermott Will & Emery
For more articles on IP law, visit the NLR

July 2021 Legal Industry News: Attorney Hiring, Law Firm Awards & Innovation

Happy July! We’re back with another edition of our legal industry news roundup. Read on for the latest law firm hiring, pro bono, and legal innovation news.

Law Firm Hiring & Moves

Much Shelist Law announced new management committee members and practice leaders for their firm.

Sheryl Jaffee Halpern, the chair of Much’s Labor and Employment group, joined the Management Committee. In her labor and employment practice, Ms. Halpern provides guidance to employers, devising practical solutions for complicated legal and business problems.

“The Much culture allows each individual to grow and develop, and I look forward to fostering our people-first philosophy as a member of our senior leadership team,” said Ms. Halpern. “I’m proud to be part of a firm that understands the power of diverse viewpoints when it comes to building a creative and collaborative workplace.”

Courtney E. Mayster, the chair of Much’s Real Estate group, joined the management committee. Ms. Mayster a commercial real estate attorney guides lenders, property owners, and investors through complex projects.

“Client relationships are at the heart of our firm,” said Ms. Mayster. “As a member of the Management Committee, I’m excited to lead Much’s efforts to enhance the client experience and ensure we continue bringing our clients smart, practical advice and innovative ideas.”

Mitchell RothSteve BlonderGreg MannMichael Shaw, and Glenn Taxman were all re-elected to Much’s Management Committee.

Much also named six attorneys as vice chairs of their respective practice groups:

Mayer Brown named John Nadolenco as managing partner of the firm’s Los Angeles office. Mr. Nadolenco joined Mayer Brown in 1995 and whose civil litigation and trial practice focuses on high-stakes cases and class action defense.

“It’s a tremendous honor to assume the responsibility of leading the Los Angeles office, which is a key strategic geography of the firm’s West Coast footprint,” said Mr. Nadolenco.

“John is an exceptionally talented litigator who has held a number of key leadership roles at Mayer Brown, and is highly regarded in the Los Angeles business community and throughout the firm,” said Jon Van Gorp,  the chair of Mayer Brown.

Kennedy’s Global Law firm added Judith A. Selby as a partner in their New York office. Ms. Selby brings a wealth of knowledge and almost 30 years’ experience in the insurance litigation field, with a concentration in cyber and data privacy, and adds to Kennedys’ growing US niche in cyber incident response and data privacy compliance.

“I’m delighted to join Kennedys’ global Cyber and Privacy practice. Increasingly, cyber and privacy issues are international and have no borders. My clients will benefit from the firm’s deep bench and global resources as they confront today’s most challenging cyber, privacy, and technology-related issues,” said Ms. Selby.

“We couldn’t be more pleased to have Judy join Kennedys. Given her reputation in the US and globally, she will be a critical addition to our growing Cyber and Data Privacy practice in the US and globally throughout Kennedys,” said Meg Catalano, Kennedy’s U.S. Managing Partner.

Manatt, Phelps & Phillips, LLP added Ted Hunter as a real estate partner in its New York office. Mr. Hunter advises on investment, funding and joint ventures, with work ranging from acquisitions, dispositions and leases to financings, workouts and development transactions.

“A respected figure across the commercial real estate sector, particularly in New York and New Jersey, Ted excels at navigating complex real estate deals by finding common ground between his clients and other involved parties,” said Donna L. Wilson, Manatt’s CEO and Managing Partner.

“Manatt’s holistic approach to the real estate industry—which includes both comprehensive legal and advisory offerings—and the firm’s long-standing focus on servicing clients in this space make it the ultimate one-stop shop for my clients,” said Mr. Hunter.

Pro Bono & Recognition

The Public Interest Law Initiative’s (PILI) Pro Bono Recognition List recognized Barnes & Thornburg’s pro bono efforts, alongside 47 other law firms.

“We are deeply grateful for the recognition that PILI has bestowed on us for the sixth year in a row. We have worked diligently in the Chicago office to increase and enhance our pro bono activities. This recognition is a testament to our firm’s long-standing tradition of providing pro bono services to those in need,” said Kevin Driscoll, pro bono administrator for Barnes & Thornburg’s Chicago office.

Steptoe & Johnson PLLC is one of more than 160 law firms participating in the Mansfield Rule 5.0 certification process. The Mansfield certification process ensures firms are considering at least 30 percent women, racially and ethnically diverse disabled and LGBTQ lawyers for promotions and leadership roles.

“Mansfield certification is the gold standard for law firms that are committed to increasing diversity among their lawyers and professional ranks, and in leadership roles,” said Steptoe & Johnson CEO Christopher L. Slaughter.

“Our clients have made diversity and inclusion a crucial part of their business and they expect the same from their legal counsel.  As a firm, we have made great strides in our diversity and inclusion efforts and obtaining Mansfield certification is the next step in that journey,” said Michael E. Flowers, the Director of Diversity and Inclusion at Steptoe & Johnson.

Foley & Lardner partnered with Boys & Girls Clubs of America to spread the message of diversity and inclusion, and help kids meet their potential. Through the partnership with Foley, the Boys and Girls club will work to advance their diversity, equity and inclusion initiatives which offer culturally relevant programs and resources for children.

“We look forward to expanding our work with Boys & Girls Clubs of America and the kids they serve. The work Boys & Girls Clubs of America does every day is part of the change needed to provide equitable opportunity to all,” says Jay O. Rothman, Chairman and CEO of Foley & Lardner.

Foley also engages in pro bono work for Boys & Girls Clubs of America on legal matters helping local clubs to offer more programs to a broader range of children.

Law Firm Awards & Innovation

The Chicago Daily Law Bulletin and Chicago Lawyer Magazine recognized Susan A. Capra, a partner at Clifford Law Offices, as one of the 50 Salute! Woman in Law in 2021.

The Law Bulletin/Chicago Lawyer selection committee, Ms. Capra’s peers, and a Women’s Advisory Board selected Ms. Capra for the award from a pool of over 400 nominees. The committee selected the awardees  “for their work to mentor and promote other women in the profession, their success in the legal community and being a shining example of leadership.”

Ms. Capra, who is also a registered nurse, focuses her practice on hospital and medical negligence litigation.

“I am honored to be among those recognized for this honor in a profession to which I have dedicated my life,” she said.

The Legal 500 United States included 90 Katten Muchin Rosenman law firm attorneys on its 2021 guide. Katten received recognition as leader in 21 practice areas.

Katten ranked highly in the following areas:

  • M&A: Middle-Market (Sub-$500 Million)

  • Structured Finance: Derivatives and Structured Products

  • Structured Finance: Securitization.

Katten attorneys also made The Legal 500’s “Leading Lawyers” list, including:

Additionally, the Legal 500 selected Associate Brett J. Seifarth as a “Rising Star” for making major contributions to his practice.

The Legal 500 analyzes the strengths of law firms across the world, basing its rankings on feedback from 300,000 clients worldwide and a team of researchers.

FFor the 10th year in a row, DLA Piper ranked among the best law firms for women by Working Mother. Specifically, DLA Piper ranked highly for hiring and retaining women, providing flexible working arrangements and promoting the advancement of women in law.

“It is our responsibility as a firm to ensure that our leadership pipeline is made up of a diverse group of lawyers who are well equipped to face the challenges of helping lead a global law firm, and programs like DLA Piper’s Leadership Alliance for Women (LAW) are a crucial factor in our ability to meet that goal. These initiatives and policies promote a more inclusive firm culture, allowing us to better serve our clients across all industries,” said Jackie Park, co-US managing partner of DLA Piper.

LAW focuses on helping women attorneys through networking, leadership skill development, and business development opportunities.

Copyright ©2021 National Law Forum, LLC

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The Secondment Trap: When Should Law Firms, Legal Departments & Attorneys Avoid a Traditional Law Firm Secondment?

For more than half a century, corporate law departments and law firms have used secondment arrangements as a way to solve the law department’s need for high-caliber, interim additional counsel to alleviate leaves of absence or sudden increases in legal work. These law firm-provided flexible talent arrangements have largely been considered symbiotic, with each side convincing itself how happy it is with the deal. As it turns out, however, many of these attorney staffing arrangements are not, in fact, strategic and often negatively impact clients, law firms and the lawyers who serve as secondees.

Why law firm secondments? Secondments are sometimes perceived as a viable flexible talent solution when additional bandwidth is needed in-house, but where hiring new team members doesn’t make sense for the legal department. Typical circumstances include major litigation and during pre- and post-merger integration phases. Secondments are also frequently used to fill the role of existing team members who take time off due to illness, military or family leave. Some companies use law firm secondments when headcount limitations or hiring freezes preclude adding a needed permanent hire.

What makes a secondment symbiotic? For law firms, secondments can sometimes provide a means to accommodate a good client’s request, with the potential added benefit of having a law firm team member embedded at the client, presumably producing enough revenue to at least cover the firm’s cost of employing the attorney. For the law department, its immediate needs for additional resources are filled by a talented, high-quality attorney, as vetted by one of its prestigious law firms.

Law firm secondment arrangements are symbiotic when the goals of firm and client are aligned. For example, a secondment can sometimes offer a convenient avenue for in-house teams to embed knowledge of the company at their law firm and for the law firm to gain greater visibility regarding its client’s needs. It may also be a way to help young attorneys develop experience “on the business side” before moving back into the firm to better serve the client in the future. In some cases, the company is test-driving a potential future hire for the company and the firm doesn’t mind losing the attorney permanently based on the expectation that new work will flow back to the firm if the attorney moves in-house permanently. Sometimes a firm is happy to simply outplace an attorney who is not a long-term fit with the firm.

But there are many instances—most of the time, actually—where the disadvantages of secondments outweigh the benefits. Clients often seek secondment arrangements—and firms agree to them—simply because “that’s the way it’s always been done.” A deeper analysis indicates secondments are often not actually beneficial for law firms, clients or especially the lawyers who serve as secondees.

Let’s start with law firms. First, secondees are usually billed at deep discounts, resulting in the firm taking a substantial financial hit. Often, firms bill out secondees much closer to the cost of their employment than their bill rate. In these cases, the firm misses out on the revenue that attorney could have earned for the firm by billing out at normal market rates. This often results in the firm’s loss of hundreds of thousands of dollars in profits for each secondment.

Second, clients also often request a firm’s most talented or marketable associates, leaving them unable to serve other important clients. A top associate may be working with multiple clients simultaneously; devoting them full-time to a single client may disappoint the other clients or, at a minimum, impact the workflow on those projects. That workflow disruption often results in the firm writing off hours so clients do not bear the cost of substitute personnel getting up to speed. Then, when – or if – the secondee comes back, the same workflow difficulties arise again as the attorney is reintegrated.

Third, pulling an associate off a team can have the same feel as if you lost them to another job (as is often what, in fact, occurs). For smaller teams, especially, the effect can be pronounced, including lowering morale on already stressed team members, and risks further attrition due to burnout. There is also the issue of a potential drop in the quality of work product caused by the transition.

From a client’s perspective, attorneys made available by law firms are often junior attorneys. And even if they are more senior attorneys, they almost never have experience working in-house. That limits the secondee’s near-term effectiveness and results in increased stress on the existing in-house team, which must devote time to training the secondee to practice law in a new way. Attorneys with in-house experience understand that the skills necessary to be an outstanding associate at a law firm are not necessarily the same skills needed to immediately be an outstanding in-house attorney. Law firms seek analysis of many issues that require detailed thought, consideration of many different permutations of issues, precise drafting – and the layered review of work product by sometimes multiple more senior attorneys. Firms are looking for precise answers to legal questions – and this takes time.

Law departments, on the other hand, are required to work at “the speed of business.” In-house counsel need to provide actionable answers, often immediately, consistent with the business objectives and risk tolerance of the company. Law departments are looking for answers to business questions – as quickly as possible. The shift between the law firm style of practice and in-house practice often takes time and training – yet legal departments often turn to secondments because they need an attorney who can begin taking work off others’ plates immediately.

Finally, even when a secondee is provided at a significant discount, law firm resources are not cheap and typically significantly more costly to the law department than comparable alternatives.

Perhaps most importantly, secondment agreements can also negatively impact the lawyers that serve as secondees. Many associates who agree to serve as secondees do so with the perception that it will be an easier way of fulfilling their billable-hour requirement or that in-house work will be less demanding. However, as discussed above, the skill sets needed in-house are different than those at a firm. That may frustrate the client, but it can also be a big shock to the secondee.

Second, from the perspective of their law firm career, the time seconded is time not generating the same revenue as their peers due to discounted work. That can be problematic, depending on the stage of the attorney’s career and the firm. While partners may understand that less revenue was generated because the attorney was seconded, it does not change the fact that many of the secondee’s peers will have far outpaced them in billings and in exposure to decision-making partners. (Secondees that are out of sight are also out of mind.) Upon their return, secondees often find they have been passed by other associates, have difficulty getting back onto the same client teams or are now out of the loop with other clients because they have missed key events. In some instances, upon their return secondees can face resentment from their peers who had to pull their weight while they were gone. Some returning secondees can even be considered failures for not having been permanently hired by the client.

Third, that period in-house likely requires the attorney to pause or at least deprioritize up to a year of traction toward being able to originate their own business. This often makes it more difficult to make partner.

In an era when law firm and corporate leaders are striving to better develop young attorneys, secondments can in many situations have the opposite effect on a promising young attorney’s career. In short, as often as not, a secondment opportunity is not in a young associate’s best long-term interest.

The legal industry is moving into a new era, with many new options for getting work done. So why are nonsymbiotic secondments often still used? Sometimes it is due to not being aware of other, better options, and often it is due to both firms and clients not fully understanding the disadvantages to all involved. Some, however, continue to be hesitant to embrace alternative means due to concerns over the quality of lawyers outside of traditional law firms. We are past the days when only law firms and legal departments employ top-tier attorneys, so there is no need to compromise on quality. There are now many outstanding attorneys with sophisticated Big Law and in-house backgrounds available on a flexible basis. These attorneys have track records of success that enable them to embrace the type of very well-compensated, flexible practice that is only available to the most accomplished attorneys.

While in the past law firms may have had little choice but to accede to a client secondment request despite the negative consequences to the firm and secondee – or refuse and risk driving the client into the arms of a competing law firm – now law firms have great alternatives to traditional secondments. Likewise, legal departments no longer have to press their law firms for a secondment and can instead preserve that request for a favor for other occasions.

With the growing pace of legal teams requiring highly developed specialties and rapidly changing activities, including the rise in proactive investigations and ESG-related compliance, there has never been more need for attorneys with a Big Law pedigree to bridge the gaps for corporate legal departments. But, in an increasing number of instances, traditional law firm secondments are not the best model. Instead, it will be imperative to find legal team members that can quickly and cost-effectively start working and fit in with the existing in-house team, without putting undue pressure on law firms or negatively impacting the careers of promising law firm attorneys. And flexible talent legal service companies may provide the key to filling in the gaps and avoiding those costly traps.


© 2021 Latitude. All Rights Reserved.
ARTICLE BY Ross Booher and Tim Haley of Latitude
For more articles on the legal industry, visit the NLRLaw Office Management section.

Judge Again Finds DACA Program Illegal, Blocks New Applications, Allows Renewals

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Jackson Lewis P.C. © 2021

For more articles on DACA, visit the NLRImmigration section.