Cultural Artifacts Returned to Thailand

After a three-year investigation by Homeland Security Investigations (HSI), two hand-carved lintels from ancient temples in Thailand were returned to the Thai government during a joyous ceremony including dancers and prayers at the Royal Thai Consulate-General in Los Angeles.

HSI is the principal investigative arm of the Department of Homeland Security. With a workforce of over 10,000 employees, HSI has Special Agents across the United States and in 53 countries. This presence abroad is “one of the largest international footprints in U.S. law enforcement.” HSI’s Cultural Property, Art and Antiquities Smuggling arm has, since 2007, returned more than 11,000 artifacts to over 30 countries.

The lintels are religious artifacts made of sandstone in the 9th and 10th centuries and are identified as being from the Nong Hong Temple and the Khao Lon Temple in northeastern Thailand – both protected sites. The sandstone lintels weigh about 1,500 pounds each. They were exported from Thailand more than 50 years ago, allegedly in violation of Thai law. They were donated to the Asian Art Museum in San Francisco.

In 2016, the Thai consul general saw the lintels displayed at the museum and asked to have them returned to Thailand. HSI negotiated their return for close to four years. The full provenance is not clear, but the lintels, donated to the museum, are valued at approximately $700,000.

Acknowledging that there is a continuing black market in Thai artifacts, the Thai ambassador to the U.S., Manasvi Srisodapol, hoped that the publicity surrounding the return would raise public awareness and help to stem the removal of cultural patrimony. Ambassador Srisodapol called the repatriation ceremony the beginning of the lintels’ “sacred journey back home.”

Jackson Lewis P.C. © 2021

For more articles on immigration, visit the NLRImmigration section.


The Elements of Your COVID-19 Voluntary Vaccine Policy

About half of the U.S. working age, vaccine-eligible population has now been vaccinated, according to Centers for Disease Control and Prevention (“CDC”) tracking data.  New CDC guidelines allow the fully vaccinated to unmask, except were applicable law or private businesses and workplaces say otherwise.

If that was supposed to be an incentive, it has yet to kick in.  COVID-19 vaccination rates are slowing considerably. There is growing concern for getting everyone safely back to work—and soon— especially among small- to mid-size employers still emerging from the pandemic.

Making vaccinations mandatory is technically an option, but many employers don’t want to go there, and an increasing number of  states are in the process of banning it anyway.  Thus, there is no shortage of ideas for incentivizing employees to get the shot—from on-site opportunities to extra vacation days, and employers are ardent for knowledge about which employees have already been vaccinated.

Nondiscriminatory incentives for getting the shot and a valid mechanism for learning who got it—those points and more can be deployed in a voluntary vaccine policy.  Here are the key elements:

Education:

Anti-vaccine messaging is all over the internet, but the case for the safety and effectiveness of the COVID-19 vaccines gets better every day.  Employers, especially small- to mid-size employers, can leverage both public and private resources to make the case to their employees.  For example, the CDC has done its job in addressing vaccine safetyvaccine benefits, and perhaps most importantly, vaccine myths and facts.  But one of its best educational contributions to date is this video that directly addresses, in compelling fashion, the most common concerns about how the vaccines were safely developed in such a short time, and whether the new mRNA technology is known to be safe.  Beyond public sources, holding private sessions for employees with local professors or doctors of epidemiology can not only make a compelling case for vaccination, but also debunk in real time the growing list of anti-vaccine myths about COVID-19 vaccination.

Voluntary Policy:

With limited exceptions for certain disabilities and religious observances, under current Equal Employment Opportunity Commission (EEOC) guidance (and subject to state law), it is legally permissible for employers to mandate that employees receive a COVID-19 vaccine as a condition of employment.  A voluntary policy should explain that, and state that the employer has opted not to make vaccination a condition of employment.  Instead, the employer strongly encourages all eligible employees to be vaccinated against COVID-19 on a voluntary basis, subject to the individual advice of the employee’s doctor and the recommendations of the CDC and the FDA.  This explanation that the program could be made mandatory but is not will itself be an incentive for some.

Incentives:

As cited above, there are many types of incentives for vaccination—transportation reimbursement, one-day on-site shot clinics, additional days of vacation or other paid leave (a popular option), extra sick days off specific to the aftereffects of vaccination, monetary payments, merchandise or gift card perks, and entertainment events.  Usually any such incentives come with an eligibility time limit—for example, for all employees fully vaccinated by August 1.  The policy should also address proof of eligibility, such as submission of a copy of the vaccination card, or a print screen of the provider’s online record of the vaccination.  Caveat:  Last week, the EEOC issued updated guidance allowing vaccine incentives—so long as such incentives do not unduly pressure employees to disclose protected medical information.

Legal Compliance: 

For any of these incentives to pass legal muster, they should be made subject to existing employer policies, such as advance notice for use of PTO, and separate maintenance of medical records.  In addition, incentive policies should provide for “exception awards” for those employees with a medical condition and/or disability that conflicts with getting vaccinated; and employees with sincerely held religious beliefs, observances, or practices that conflict with getting vaccinated.  Eligibility rules for such awards must be carefully crafted and allow for the employer to engage in the interactive process to seek out accommodations that will enable the employee to be vaccinated.  In addition, the policy should prohibit disclosure of certain information unnecessary to the eligibility for the program—such as genetic information.

Additional Elements: 

Other considerations for a voluntary vaccine policy include the question of whether it will need to be administered annually, which seems likely enough; how time off for the vaccine and any aftereffects will be scheduled; whether employees will be put on notice that they assume the risks—of vaccination or of coming to work unvaccinated; and nondiscrimination and nonretaliation (especially by co-workers) as to those who choose to vaccinate or not vaccinate.

As COVID-19 continues to abate and, as we watch for mutations in the virus as well as in state and federal law, employers must stay up-to-date with their policy guidance and risk management.

© 2021 Foley & Lardner LLP


For more articles on voluntary COVID-19 vaccinations, visit the Coronavirus News section.

Lending Options for Law Firms Even More Relevant During a Crisis: A Q&A with Esquire Bank’s Ari Kornhaber

Plaintiffs’ law firms take cases on a contingency basis and frequently face defendants with deep pockets who can afford to wait their cases out. The COVID-19 crisis has added even more uncertainty to the litigation process and cash flow for law firms.

Large amounts, often in the hundreds of thousands of dollars can come due for plaintiffs’ law firms incurring expenses during drawn-out cases, especially for cases with multiple plaintiffs and cases where expert testimony is required.

For contingency cases, the large sums of law firm capital that are tied up in case costs for many years can limit law firms’ ability to utilize that capital for business expansion or to invest in other fee-generating cases.

Unlike traditional businesses, law firms cannot simply raise capital for operating expenses. Current legal ethics rules prohibit non-attorneys from taking ownership interests in law firms, which eliminates the use of securities as a funding option and while attorneys can borrow funds, it often must be from a non-traditional lender because a potential litigation victory generally falls outside the scope of what is considered acceptable collateral.

This often leads law firm management to pursue alternative lending options from non-traditional lenders like litigation financers or specialty lenders, who emphasize their core differentiator is that they can use a law firm’s case inventory as collateral – however, this often comes with a less-competitive interest rate than traditional banks.

Ari Kornhaber, Esq., Founder, Executive Vice President and Head of Corporate Development at Esquire Bank provides insight on financing options for plaintiffs’ firms and how to ensure your law firm approaches it the right way.

NLR: How have you seen contingency fee law firms maintain their businesses throughout the pandemic?

Kornhaber: The pandemic has forced many trial lawyers to take an honest look at themselves and often rethink their business models. Decisions that made sense pre-pandemic may not make sense now, especially in today’s low-interest-rate environment. As a result, contingency fee law firms are examining whether their current approach to law firm capitalization makes sense. Many lawyers that I speak to are taking a more proactive approach to how they run their business.

NLR: As we emerge from the pandemic, what are plaintiff’s firms worrying about most?

Kornhaber: Now more than ever, lawyers who run contingency fee law firms are concerned about the future. There is a general feeling out there that their businesses haven’t fully felt the effects of the pandemic yet, due to the nature of the business. Cases that are signed up today won’t generate revenue for months or years. The decline in intakes months ago, won’t truly be felt for months, a year, or more. This has self-financed law firms particularly concerned, as their nature is to be debt-adverse. For these self-financed firms, the combination of intakes being down and cases taking longer to settle means they will have to dig deeper into their own pockets. Meanwhile, other law firms with access to capital are using this time to move their businesses forward by investing in new legal technology, infrastructure, and talent.

NLR: What are some key takeaways self-financed law firms should know about their borrowing options?

Kornhaber: The current economy has created a low-interest-rate environment. Going to your bank and asking them what they can do for you is the first thing self-financed firms should do. It is important to note that banks covet law firms as customers because they come with low-cost deposits. Also, trial law is an industry that is classified as ‘recession proof’. Banks and lenders are trying to put their best foot forward for new law firm clients – so there is no better time than right now to speak to a bank to see how they can help.

The catch, however, with speaking to a traditional bank is that they rarely use the value of your case inventory as collateral for lending purposes. This means they will look at your previous financial performance to come up with how much they can lend you – ignoring the revenue your law firm will generate via the cases that are in your inventory today and tomorrow. The final amount of credit offered is often not enough for many lawyers.

NLR: What about specialty litigation finance companies?

Kornhaber: Specialty finance companies play an important role in the equation, as they can often lend to law firms that the traditional banks often ignore. Specialty legal finance companies are more likely to take on these ‘riskier’ clients, but usually at much higher interest rates and fees as compared to banks to compensate for the additional risk.

Higher risk law firm clients frequently have exhausted their options with the ‘mega banks’ and are struggling to fit into the box suited for other types of businesses. A next step after traditional lenders is law firms often speak with finance companies and lawyers are often surprised at the interest rates, fees, and terms they are offered. Often by the time they get to a lender like Esquire Bank, the first question that’s asked out of exhaustion and frustration is – what kind of interest rate can you give me? Although our interest rates are some of the lowest in the industry, there’s a lot more to the conversation. There is real value to working with a financial business partner that has a deep understanding of the business of law and the unique financial challenges faced by contingency fee law firms.

NLR: What factors should be considered when assessing case-cost financing?

Kornhaber: First, project your firm’s cash flow for the next 12, 24, and 36 months. Take into consideration the reduction of new case intakes and possible court delays to figure out what your financial position is going to look like over the next few years. Ask yourself what you need to survive, then what you need to thrive and invest during a ‘down market’ to come out on top. Being realistic is extremely important.

Understand how much money you have out on the street today in your case costs, then figure out how much more money you’ll need to spend on case costs over the next 12 months. This helps you to understand what you will need to commit from your self-financed ‘piggy bank’ to continue your winning record for your clients.

Then, figure out what your average balances are in your depository accounts. If you take this information to your lender, they may try to help you in a meaningful way, especially if you’ve been with them for many years.

Finally, ask yourself if you really need to pay for your clients’ case costs using your firms’ after-tax dollars and whether you could instead, use that money more effectively in other activities that will help your law firm grow. Law firms that leverage case-cost financing often report that they achieve better results for their clients because they have the financial backing to go toe-to-toe with their deep-pocketed adversaries without having to think twice about bringing in the best, most expensive experts. That leads to the greatest results and ultimately justice and maximum compensation for their clients.

  • Ari Kornhaber is the Executive Vice President & Head of Corporate Development at Esquire Bank. Join Ari and a panel of experts at Esquire’s upcoming complimentary webinar, ‘Bold Moves: Growing your Contingency Fee Law Firm Post-Pandemic’ on June 15: Save your spot.

Copyright ©2021 National Law Forum, LLC


For more articles on plaintiff firm financing, visit the NLR Law Office Management section.

As Local Mask Mandates Expire, How Should Employers Respond?

Following the May 13, 2021, and May 16, 2021, guidance from the U.S. Centers for Disease Control and Prevention (CDC) relaxing mask requirements for fully vaccinated individuals outside of healthcare and select other settings, most state and local government mask mandates have been lifted or will soon be allowed to expire. As a result, many employers across the U.S. are exploring their options regarding their masking policy.

Recap of the CDC’s guidance

The CDC’s guidance states that fully vaccinated individuals “can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

Essentially, this means that fully vaccinated individuals can leave their masks at home unless a state or local mask mandate or a business’ policy says otherwise. The CDC also suggests fully vaccinated individuals with compromised immune systems ask their healthcare provider about continuing to wear a mask and/or social distance.

As for unvaccinated individuals, the CDC recommends continuing precautions, including wearing a mask and social distancing.

WHAT DOES IT MEAN TO BE FULLY VACCINATED?

According to the CDC, individuals are considered fully vaccinated:

  • Two weeks after their second dose in a 2-dose vaccine series, such as the Pfizer or Moderna vaccines
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Also at the federal level, the Occupational Safety and Health Administration (OSHA), which oversees workplace safety, directed employers to the new CDC guidance. However, employers should be aware that OSHA continues to consider an Emergency Temporary Standard which may include mask guidance and requirements.

Expiring local orders

State and local laws mandating masks continue to decrease in number and Wisconsin is following this trend. On March 31, 2021, the Wisconsin Supreme Court invalidated the statewide mask mandate. On June 1, 2021, the City of Milwaukee’s mask ordinance will expire, and the City of Madison’s and Dane County’s joint mask requirement ends June 2, 2021.

Three common approaches to changing workplace mask policies

Considering recent changes in state and local mask mandates as well as mounting pressure from employees to make policy adjustments, many non-healthcare employers are changing their mask policies. Although there has been a spectrum of approaches, the following are three common ones:

1. WAIVING MASK REQUIREMENTS FOR FULLY VACCINATED EMPLOYEES

Many employers are sticking closely to the recent CDC guidance by retaining a mask requirement for employees who are not fully vaccinated and allowing fully vaccinated employees to forgo masks. A key decision point for employers when choosing this approach is whether to require proof of vaccination. Many employers are relying on the honor system as there are important legal considerations before asking employees about their vaccination status.

2. RETAINING MASK REQUIREMENTS REGARDLESS OF VACCINATION STATUS

Some employers are retaining mask requirements for all employees. Reasons for this may include: an inability to socially distance in the workplace, uncertainty regarding the potential OSHA standard or a local order requiring that masks remain in place.

3. ELIMINATING THE MASK REQUIREMENT ALTOGETHER

Some employers are eliminating mask requirements for all employees. Reasons for this approach may include: a fully vaccinated workforce, an outdoor work environment or the ability to socially distance during the entire workday with limited crossover. It is important to note that this approach carries the most risk for employers because the CDC still recommends masking in public spaces in certain instances, like being unvaccinated, and OSHA continues to consider an Emergency Temporary Standard.

Communicate any changes and be clear that unmasking is optional

Any changes to an employer’s mask policy should be formally communicated to employees via the same methods used to convey general workplace guidance. Such policy changes should emphasize that unmasking, as allowed by the policy, is optional, thereby allowing individuals who wish to continue masking, for whatever reason, to do so.

Each approach comes with varying legal risks and benefits, depending upon the specific facts related to the workforce, industry and other variables. Employers considering changes to their mask policies should contact legal counsel to discuss these issues and update their COVID-19 safety plans to reflect any changes to their practices.

Copyright © 2021 Godfrey & Kahn S.C.


For more articles on mask mandates, visit the NLRCoronavirus News section.

IRS Guidance Clarifies “Involuntary Termination” for the COBRA Subsidy

In Notice 2021-31, the Internal Revenue Service (IRS) provides broad guidance in a question-and-answer format on the application of the American Rescue Plan Act of 2021 (ARP) regarding premium assistance under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) continuation coverage provisions. Perhaps most critical for group health plan administrators and insurers, the IRS has defined and illustrated the use of the term “involuntary termination of employment,” which is the primary trigger (the other is a reduction in hours) for premium assistance obligations under the ARP.

Background

Section 9501 of the ARP provides for a temporary 100%reduction in the premium otherwise payable by certain individuals and their families who elect continuation coverage due to a loss of coverage as the result of a reduction in hours or involuntary termination of employment under COBRA (and, in certain cases, under state “mini-COBRA” laws). Such persons may be “Assistance Eligible Individuals” for whom group health plan administrators and insurers must provide certain notices and facilitate a premium reduction, if elected. For more background regarding the premium subsidy under the ARP, see our prior article.

What is an involuntary termination of employment?

The notice generally defines an involuntary termination of employment as follows:

a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services

Ultimately, however, the determination of whether a termination is involuntary is based on the facts and circumstances.

What are some examples of an involuntary termination of employment?

  • Good Reason – An employee-initiated termination of employment is involuntary if it occurred for good reason due to employer action that results in a material negative change in the employment relationship for the employee analogous to a constructive discharge.
  • Impending Termination – An employee-initiated termination of employment is involuntary if the employee was willing and able to continue performing services, but the employee initiated termination having knowledge that the employee would have otherwise been terminated by the employer.
  • Illness or Disability – An employer-initiated termination resulting from the employee’s absence from work due to an illness or disability is an involuntary termination if before the action there is a reasonable expectation that the employee would have returned to work after the illness or disability has subsided. However, mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment is not an involuntary termination.
  • Cause – An employer-initiated termination of employment for cause is involuntary. However, if the termination is due to gross misconduct, the termination is not a qualifying event under COBRA and will not result in premium assistance.
  • Change of Work Location – An employee-initiated termination as the result of a material change in the geographic location of employment for the employee is involuntary.
  • Window Program – An employee-initiated termination of employment through a window program that is offered in connection with an impending termination and that meets the requirements of Treas. Reg. § 31.3121(v)(2)-1(b)(4)(v) is involuntary. Such a window program is generally one that provides an early retirement benefit, retirement-type subsidy, Social Security supplement, or other form of benefit for a limited period of time (no greater than one year) to employees who terminate employment during that period or to employees who terminate employment during that period under specified circumstances.
  • Nonrenewal – An employer’s decision not to renew an employee’s contract if the employee was otherwise willing and able to continue the employment relationship and was willing either to execute a contract with terms similar to those of the expiring contract or to continue employment without a contract is generally an involuntary termination. However, if the parties understood at the time they entered into the expiring contract, and at all times when services were being performed, that the contract was for specified services over a set term and would not be renewed, the completion of the contract without it being renewed is not an involuntary termination.

What are some examples of terminations of employment that are not involuntary?

  • Retirement – An employee’s retirement generally is not an involuntary termination. However, if the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s employment, that the employee was willing and able to continue employment, and that the employee had knowledge that the employee would be terminated absent the retirement, the retirement is an involuntary termination.
  • Workplace Safety – An employee-initiated termination due to general concerns about workplace safety typically is not involuntary. However, if the employee can demonstrate that the employer’s actions (or inactions) resulted in a material negative change in the employment relationship analogous to a constructive discharge, the termination is involuntary.
  • Childcare – An employee-initiated termination resulting from the employee’s child being unable to attend school or because a childcare facility is closed due to COVID-19 generally is not involuntary.
  • Death – The death of an employee is not an involuntary termination of employment.

© 2021 Bradley Arant Boult Cummings LLP


For more articles on free COBRA premiums, visit the NLR Coronavirus News section.

CBD Here, CBD There, CBD Everywhere: Tension Between State and Federal Authorities Leaves CBD Companies in Limbo

You can’t miss them: signs reading “CBD PRODUCTS SOLD HERE” are appearing in gas stations and drug stores across the country. Cannabidiol (“CBD”), a naturally occurring non-psychoactive compound derived from the cannabis plant, is a mainstream product marketed as a supplement that provides health benefits to its users. Proponents claim CBD provides pain relief and reduces feelings of anxiety and depression, among other health benefits. In 2018, the United States Food and Drug Administration (“FDA”) approved Epidiolex, a CBD oral solution, for the treatment of seizures associated with Lennox-Gastaut syndrome and Dravet syndrome, diseases that generally appear in early childhood.

While CBD’s effects are promising, the FDA considers CBD a “new drug” under the Food, Drug and Cosmetic Act (“FD&C”). Under the FD&C, it is generally illegal to introduce a new drug into interstate commerce. The question, therefore, begs – if the FDA considers the sale of CBD illegal, then why are we seeing CBD for sale everywhere?

In 2018, the Agriculture Improvement Act (“2018 Farm Bill”) removed hemp from the definition of marijuana under the federal Controlled Substances Act (“CSA”). Consistent with the 2018 Farm Bill, Pennsylvania adopted a Hemp Program. The program permits the Pennsylvania Department of Agriculture to grant licenses to entities to grow, cultivate, and sell hemp. Under the program, licensees are permitted to grow hemp for the purpose of producing CBD. Other states have adopted similar programs, and under lawful state programs, the industrial hemp industry is growing (pun intended). By 2024, the United States CBD market is expected to reach $20 billion in sales. By 2028,  the value of the global industrial hemp market is projected to reach $27.7 billion.

So what’s the hold up? Since 2015, the FDA has issued warning letters to more than a dozen CBD companies for alleged violations of the FD&C. In the warning letters, the FDA claims to have reviewed the companies’ websites (including social media accounts) for evidence of FD&C violations. The FDA explains that the marketed CBD products are “drugs” under the FD&C because the products are “articles intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or intended to affect the structure or any function of the body.” 21 U.S.C. § 321(g)(1). The FDA says that the products are “new drugs” because CBD is not generally recognized as safe and effective. See 21 U.S.C. § 321(p). Under the FD&C, new drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, or unless they are over-the-counter drugs lawfully marketed under 21 U.S.C. § 505G.

Clearly, there is conflict between state and federal authorities. While businesses face exposure under the FD&C, states like Pennsylvania permit CBD production. In the absence of regulation and consistent enforcement, it is likely that the CBD industry will continue to grow.  Due to the complexities in the laws, companies operating in the CBD sector may face difficulties in risk management, banking, and logistics. SMGG is tracking changes in the CBD laws and rulemaking process, and we are ready to advise you or your company in navigating CBD’s complex legal landscape.

©2021 Strassburger McKenna Gutnick & Gefsky


Brain Interfaces Bring Us Closer to a Life of the Mind

As we learn more about the human brain, we can begin to wonder if the rest of the body is necessary. Improved brain-machine interfaces are showing us how much can be accomplished by tapping directly into our thoughts.

While brainwaves can be read and interpreted through electrodes placed on the scalp, this method lacks the spatial detail of implanted electrodes. The recent action in practical thought-to-action science has taken place with direct physical connections.

For example, last summer brain researchers in Australia and the U.S. showed promising results by mounting electrodes on an expandable stent and threading it through blood vessels that lead to the brain. The sensors in the stent could sense when people’s brains signaled an intention to move, the sensors wirelessly sent this information to a computer which interpreted the signals. The interface allowed ALS patients to combine use of an eye tracker to move a cursor plus a thought-controlled click, making their communication faster and easier without surgery to implant electrodes.

Electrode-based therapy is still the gold standard, and Elon Musk’s company Neuralink has announced testing of a wireless implant that could provide a broadly useful direct interface between human brains and computers. Neuralink’s small implants include more than 1000 electrodes designed to send wireless signals to anything digital, like prosthetic hands or automotive controls.  According to a story in Wired last year, “The reason that excites neuroscientists is that right now their tools are relatively crude. The standard is the “Utah array,” a single chip with 64 electrodes on it. Just putting it in or taking it out can damage the tissue around it, and it’s not good at isolating single neurons or covering a large area … At the Neuralink presentation, Musk said that his prototype included sensors for motion, temperature, and pressure and 1,024 thin, flexible wires to pick up the electrical signals neurons put out while they’re neuron-ing.” Currently, this array can be wirelessly connected to a computer to learn to associate outbound signals with specific intentions.

Computer-aided brain-driven prosthetics have been improving by adding an element of touch feedback to the process.  Until recently, a person using a brain-computer interface would use visual cues to pick up objects with prosthetic arms. However, according to this week’s Ars Technica, researchers working with people paralyzed from the neck down added tactile feedback to the systems, allowing the test participants to drastically improve performance. The biggest improvements involved tasks requiring grasping an object. “While we may not always be consciously aware of them, touch and pressure play a major role in everything we do with our hands. By targeting the right area of the brain, the implant takes advantage of the systems the brain already has for managing this kind of sensory input.” As we understand more about these regions of the brain, the Brain/computer/ prosthetic interaction becomes easier and more efficient.

One of the most impressive recent achievements arrives this month out of Stanford and Brown Universities allowing a paralyzed person to type out about 90 characters per minute by imagining that he was writing the characters out by hand. This drastically beats the efficiency of earlier efforts that involve virtual keyboards and cursors. As noted by Wired, “there are other possible routes to getting characters out of the brain and onto the page. Somewhere in our writing thought process, we form the intention of using a specific character, and using an implant to track this intention could potentially work. . . Downstream of that intention, a decision is transmitted to the motor cortex, where it’s translated into actions. Again, there’s an intent stage, where the motor cortex determines it will form the letter (by typing or writing, for example), which is then translated into the specific muscle motions required to perform the action. These processes are much better understood, and they’re what the research team targeted for their new work.”

By placing implants in the premotor cortex, researchers were able to capture the base intentions of the thinker at an earlier, clearer stage than simply the intentions of movement to effectuate the underlying ideas. Conceptually, this is an interesting advance. We had been focused on tapping into the same neurons that allow a person to type a message, but we are finding that, if we can catch the thought before the brain has converted it into a specific physical action, then we can skip a step in the brain’s process and make the brain-computer interface much more efficient. It makes one wonder whether stripping the process back even further, capturing thoughts of entire words, rather than letters, would create further efficiencies.  Right now we can turn intentions toward physical action into the actions themselves.  But this is an advance toward capturing the initial desire before it can be processed further by the action portions of the brain.

As the Wired article stated, “the system shows a very significant speed boost compared to previous implant-driven systems, and the accuracy is quite good. The system also has the potential to be similar to touch-typing, in that a user doesn’t have to actually visually focus on letter production, allowing more normal interactions with the user’s surroundings.” So we proceed closer to the holy grail of brain-computer interface: allowing a person’s brain to drive direct actions without involving the rest of the body at all.

This would be a clear victory for those with bodily impairments, but it also would be an excellent step toward systems that allowed us to manage all parts of our world without needed a body to manipulate our environment.  We could speak to our home temperature control system or direct our automobile without touching anything. Arriving in the midst of a pandemic, the possibility of touchless control of our environments has a special allure. Maybe someday in the not-so-distant future, all we will need is an operational brain to be a fully functioning human.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.


For more articles on the human brain, visit the NLRBiotech, Food, Drug section

May 2021 Legal Industry News Highlights: Attorney Moves, Law Firm Pro Bono Work & Innovation

We’ve returned with another edition of our legal industry news column for May. Read on for the latest news on attorney promotions, law firm recognition, pro bono work and legal technology and innovation:

Attorney Promotions & Moves

The International Financial Law Review (IFLR) recognized Blakes’ law firm partners Pamela Huff and Catherine Doyle as IFLR1000 Woman Leaders for the quality of their advice and the consistent recommendations of their clients and peers.

Ms. Huff is the head of the Blakes Restructuring & Insolvency group and advises on Canadian business law. Ms. Doyle is a leading member of Blakes’ Project & Financial Services group. Ms. Doyle has been a part of some of the most impactful infrastructure deals in Canada.

Jamie M. Ramsey joined Frost Brown Todd as the newest litigation member of the Cincinnati, Ohio office. Mr. Ramsey’s litigation experience includes breach of contract claims and trademark infringement to class action litigation. Mr. Ramsey also has experience helping clients navigate the legal framework impacting the collection, use, and protection of personal information.

“Jamie’s work with everyone from start-ups to Fortune 500 companies will provide our clients additional insight into how to manage risks to both their operations and reputations,” said Cincinnati Member-in-Charge Chris Habel. “He represents companies in both Ohio and Kentucky, and we couldn’t be more excited to have him in our Cincinnati office.”

Marjorie J. Peerce, managing partner of Ballard Spahr’s New York Office, is the new Vice President of the New York City Bar Association (NYCBA). Ms. Peerce served as Chair of the NYCBA Board of Directors since May 2020. She also formerly served as Chair of the NYCBA’s Criminal Law Committee and served on the Mass Incarceration Task Force. The NYCBA, founded in 1870, works to maintain the high ethical standards of the legal profession and includes over 150 committees.

Ms. Peerce is a founder and leader of Ballard Spahr’s Blockchain Technology and Cryptocurrency team, and handles high profile civil and criminal matters in state and federal courts in New York and around the US.

Adrian Cyhan joined Stubbs, Alderton and Markiles, LLP as a partner in the firm’s Intellectual Property & Technology Transactions practice. Mr. Cyhan is a patent attorney who focuses on identifying, protecting and leveraging intellectual property assets and providing related counsel and advice.

Mr. Cyhan manages intellectual property portfolios and handles intellectual property-related transactions such as joint ventures, acquisitions, and divestitures.

“I’ve known Adrian for several years and I’m thrilled we will be working together. He’s an exceptional attorney and a creative thinker. Bringing Adrian on-board reflects SA&M’s commitment to expanding our premier IP and technology law practice,” said Kevin D. DeBré, the Stubbs, Alderton and Markiles’ IP & Technology Transactions practice chair.

Law Firm Pro Bono & Philanthropy

Bradley Arant Boult Cummings LLP attorneys Corby C. AndersonMatthew S. DeAntonioErin Jane Illman, and Jonathan E. Schulz joined the 2020 class of the North Carolina Pro Bono Honor Society. The attorneys each provided more than 50 hours of pro bono legal services in 2020 to North Carolinians in need.

“Our Charlotte attorneys continue to go above and beyond to provide equal access to justice for all,” said Bradley Pro Bono Counsel Tiffany Graves. “We are very proud of their commitment to the community and their well-earned recognition by the North Carolina Pro Bono Honor Society.”

Bradley Arant Boult Cummings attorneys work with the Safe Alliance’s Victim Assistance/Legal Representation Program to help victims of domestic violence and the Charlotte Center for Legal Advocacy, which helps low income residents of the Charlotte metropolitan area and west-central North Carolina.

The North Carolina Pro Bono Honor Society is administered by the North Carolina Pro Bono Resource Center, which launched in 2016.

The American Bar Association (ABA) Standing Committee on Pro Bono and Public Service selected Sheppard, Mullin, Richter & Hampton as an individual recipient of its 2021 Pro Bono Publico Awards. The awards are scheduled to be presented on the opening day of the 2021 ABA Annual Meeting, which runs through Aug. 10.

The Committee selected Sheppard Mullin for its actions following the death of George Floyd. The firm launched the Active Bystandership for Law Enforcement (ABLE) project with Georgetown Law’s Innovative Policing Program, which came from an initiative to teach officers to become active bystanders and prevent misconduct in the New Orleans Police Department.

The initiative led to Sheppard Mullin successfully litigating cases in California to obtain disclosure of records of police misconduct, as well as executing a plan to manufacture and secure face shields for frontline workers in Los Angeles.

The Committee also selected Cynthia Chandler, the director of Bay Area Legal Incubator, Oakland, California, TerryAnn Howell of Nelson Mullins in Miami, Neal Manne of Susman Godfrey LLP in Houston and Rebecca Rapp of the Ascendium Education Group in Madison, Wisconsin as recipients of the 2021 Pro Bono Publico Awards.

Ms. Chandler grew the Bay Area Legal Incubator with the Alameda County Bar Association and Legal Access Alameda to help coach diverse attorneys on how to build successful, affordable law practices serving low and middle-income clients throughout California.

Ms. Howell helped launch a COVID-19 Small Business and Nonprofit Clinic with Legal Services of Greater Miami at Nelson Mullins through Lawyers for Good Government. She also volunteers alongside other Nelson Mullins attorneys at the Tenants’ Equal Justice Clinic (TEJC), a project of Legal Services of Greater Miami.

Mr. Manne dedicated 40 years of his career to high-impact pro bono work. His accomplishments include being recognized by the American College of Trial Lawyers for his pro bono work, as well as being named Attorney of the Year by Texas Lawyer. Most recently, Mr. Manne helped reform Houston’s money bail system and represented two death row exonerees.

Ms. Rapp helps increase access to areas dubbed as “legal deserts” due to a shortage of attorneys, including a project to provide legal help to technical colleges around Wisconsin. She also assists clients at legal clinics and serves on the boards and committees of several access-to-justice organizations. Ms. Rapp also testified before the Wisconsin Supreme Court on removing limitations on pro bono services.

Legal Aid Service of Broward County (LAS) and Coast to Coast Legal Aid of South Florida (CCLA) announced the recipients of their 2021 Annual Recognition Awards.

LAS and CCLA presented the awards in a series of live presentations via Facebook Live May 4–7, 2021.

The 2021 recipients include:

●               Lauren Alperstein, Esq., of Boies Schiller Flexner LLP received the Attorney of the Year Award.

●                Van Horn Law Group received the Law Firm of the Year award.

●               Ofer Shmucher, Esq. and Shera Anderson, Esq. of Shmucher Law, PL received the Spirit of Justice Award.

●               Theresa Edwards, Esq., of American Justice, P.A. received the Commitment to Justice Award.

●                Anthony J. Karrat, Esq., Executive Director of Legal Aid Service of Broward County received the Russell E. Carlisle Advocacy Award.

●               Edwin Cordova, Esq.Supervising Attorney of the Housing Unit at Legal Aid Service of Broward County received the Jacquelyn and Bruce Rogow Employee of the Year Award.

Law Firm Innovation & Technology

Winstead law firm partnered with Texas Health Catalyst at Dell Medical School at The University of Texas at Austin to support entrepreneurs who are in the early stages of developing healthcare technology products.

Winstead provides entrepreneurs with resources on legal matters such as entity formation, licensing from universities, IP strategy, funding, lease agreements, OSHA, privacy/global agreements, as well as educational programming and opportunities to meet and network with other startup professionals.

“Winstead is committed to moving healthcare technology and the latest innovations in the life sciences industry forward,” said Winstead Shareholder Lekha Gopalakrishnan. “Our collaboration with Texas Health Catalyst is intended to advance their mission of addressing unmet needs in healthcare through technology innovation.”

Davidoff Hutcher & Citron LLP (DHC), a New York-based commercial law and government relations firm, formed their Cannabis Practice Group to help clients navigate regulations around adult recreational marijuana in New York State. DHC’s Cannabis Practice Group builds upon DHC’s decades of experience in highly regulated and similar industries, such as New York’s wine, liquor and packaged goods industries.

“The Office of Cannabis Management will be implementing laws and regulations governing the growing and evolving cannabis industry in New York. They will be similar to those that govern entities regulated by the State Liquor Authority, and both will exist under a tiered system,” said Steve Malito, Chair of the Cannabis Practice Group. “Davidoff Hutcher & Citron is uniquely qualified to advise our clients in the cannabis space as they navigate the complexities of these regulations.”

In line with recent Environmental, Social and Governance (ESG) efforts nationwide, Schiff Hardin announced the formation of their new ESG Team to help companies develop programs and company disclosures that incorporate the many ESG principles. Amy Antoniolli leads the team along with key members Sarah FittsJane Montgomery, and Katherine Walton.

“Stakeholders have made clear that corporate responsibility is not just a fad or a slogan, and industry is responding as quickly as possible,” said Ms. Antoniolli. “Schiff has seen ESG quickly become an integral part of a company’s reporting and a significant factor in successful business deals. With stakes this high, companies have the opportunity to meet ESG metrics that protect their bottom line and their reputation.”


Copyright ©2021 National Law Forum, LLC
For more articles on the legal industry, visit the NLRLaw Office Management section.

Judge Looks “Kind”ly Upon Certifying Class in Snack Bar Advertising Suit

In a recent opinion out of the Southern District of New York, Judge William H. Pauley III certified three classes of plaintiffs in New York, California, and Florida who allege that KIND LLC, the manufacturer of KIND Bars, deceptively marketed several products as “all natural” and “non-GMO,” even though they purportedly contain synthetic and genetically modified ingredients.  In re KIND LLC “Healthy and All Natural” Litig., No. 15-md-02645 (S.D.N.Y. Mar. 24, 2021).

The court began its analysis by examining each of the four Rule 23(a) requirements—numerosity, commonality, typicality, and adequacy—and determining that each weighed in favor of class certification.  Most notably, the court found that common questions predominated despite the absence of any uniform definition of the term “natural” because, in its view, all the definitions plaintiffs advanced were consistent with one another.  Plaintiffs offered definitions of “natural” from the dictionary, FDA policy, the USDA, and Congress. In considering these various definitions, Judge Pauley recognized that “these formulations of the definition ‘natural’ differ,” but dismissed these concerns because he believed none “exclude[d] another.”

This decision is somewhat surprising, given the deep reservoir of class certification decisions finding that, where plaintiffs fail to establish a controlling definition for a key term or phrase in the challenged advertisement, individual issues predominate and class certification should be denied.  A number of courts have reached this conclusion in the “natural” labeling sphere:

  • In Astiana v. Kashi Co., the court refused to certify a class bringing “all natural” claims, in part because the plaintiffs were unable to show that “all natural” had a shared meaning amongst the proposed class. 2013 U.S. Dist. LEXIS 108445, *40 (S.D. Cal. 2013)
  • In Thurston v. Bear Naked, Inc., a federal judge in the Southern District of California found commonality and predominance lacking because the plaintiffs “fail[ed] to sufficiently show that ‘natural’ has any kind of uniform definition among class members.” 2013 U.S. Dist. LEXIS 151490, *25 (S.D. Cal. 2013).
  • In Randolph v. J.M. Smucker Co., the court denied class certification where plaintiff had “not demonstrated that an objectively reasonable consumer would agree with her interpretation of ‘all natural,’” while also noting that this failure “unequivocally exposes the fact that there is a lack of consensus” surrounding what constitutes a “natural” product. 2014 U.S. Dist. LEXIS 176731, *14 (S.D. Fla. 2014).

Courts regularly adopt this reasoning in other contexts also. See Pierce-Nunes v. Toshiba Am. Info. Sys., 2016 U.S. Dist. LEXIS 149847 (C.D. Cal. 2016) (holding that the predominance requirement was not satisfied where plaintiffs could not establish a common meaning for the term “LED TV”); In re 5-Hour Energy Mktg. & Sales Practices Litig., 2017 U.S. Dist. LEXIS 220969 (C.D. Cal. 2017) (same based on “energy”); In re Tropicana Orange Juice Mktg. & Sales Practices Litig., 2019 U.S. Dist. LEXIS 102566 (D.N.J. 2019) (same based on “pasteurized”).

The FDA also has not adopted, and has actually declined to adopt, a formal definition of the term “natural,” citing the “many facets of this issue” the agency would have to carefully consider if it were to undertake the task of defining the term.  See 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993).  In doing so, the FDA noted “the ambiguity surrounding use of this term.”  It is difficult to square this ambiguity with the KIND court’s certification decision.

Watch this space as we monitor whether this decision is part of a shifting tide in “natural” certification decisions, or merely an outlier amidst continuing struggles to reach consensus on what “natural” even means.

© 2021 Proskauer Rose LLP.


For more articles on food class actions, visit the NLRLitigation / Trial Practice section.

Not With a Bang but a Whimper

In a non-precedential Order issued by the US Court of Appeals for the Federal Circuit—on remand from the US Supreme Court’s April 2021 decision upholding Google’s fair use defense to Oracle’s copyright infringement claim—the Court recalled its mandate in the case “solely with respect to fair use,” leaving intact the Federal Circuit’s May 2014 judgment favoring Oracle on the question of copyrightability. Oracle America Inc. v. Google LLC, Case Nos. 17-1118; 1202 (Fed. Cir. May 14, 2021)(PER CURIAM). After recalling its mandate, the Federal Circuit issued its order without further briefing by the parties.


© 2021 McDermott Will & Emery

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