By Law, Everything Is Possible In California

The California Civil Code includes a number of decidedly gnomic provisions.  Section 1597 is one of these.  It purports to answer the question of what is possible:

Everything is deemed possible except that which is impossible in the nature of things.

The problem with the statute is that it doesn’t fully answer the question because to know what is possible, one must know what is impossible and the statute doesn’t provide a definition of impossibility.  In this regard, I am reminded of the following lines from James Joyce’s Ulysses: 

But can those have been possible seeing that they never were?  Or was that only possible which came to pass?

But why define what is possible?  The reason is that Civil Code requires that the object of a contract must, among other things, be possible by the time that it is to be performed.  Cal. Civ. Code § 1596.  When a contract that has a single object that is impossible of performance, the entire contract is void.  Cal. Civ. Code § 1598.

Happy Bloomsday!

Today is Bloomsday.  Joyce chose June 16, 1904 as the day on which most (but not all) of the action in Ulysses takes place.  It is called Bloomsday because the hero of the novel is Leopold Bloom.  It was on June 16, 1904 that Joyce and his future wife, Nora Barnacle, had their first date (and intimate contact).

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Finn’s Hotel in Dublin, where Nora worked in 1904

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP

ERIC Files Amicus Brief Rebutting DOL Attempt to Create New Regulations in Lawsuit, Petitions US Supreme Court on Seattle Healthcare Case

Read on below for coverage of recent law firm news from McDermott Will & Emery.

ERIC Files Amicus Brief Rebutting DOL Attempt to Create New Regulations in Lawsuit

McDermott Will & Emery’s Andrew C. LiazosMichael B. Kimberly and Charlie Seidell recently filed an amicus brief in the US Court of Appeals for the 10th Circuit on behalf of the ERISA Industry Committee (ERIC). McDermott filed the brief in response to a US Department of Labor (DOL) amicus brief that advanced a novel interpretation of its regulations which, if adopted through litigation, would change longstanding procedures for benefit determinations under self-funded medical plans sponsored by large employers. The amicus brief focuses on key arguments against the DOL’s attempted regulatory reinterpretation, including that:

  • DOL may not rewrite its regulations outside of notice-and-comment rulemaking;
  • DOL’s interpretation of its own regulations is inconsistent with the plain text of the regulations;
  • There are good policy reasons underlying differential treatment of healthcare and disability benefits determinations; and
  • DOL’s interpretation of the regulations in its amicus brief is not entitled to deference under the Supreme Court decision in Kisor.

Read ERIC’s amicus brief here.

Read ERIC’s statement here.

ERIC Petitions US Supreme Court on Seattle Healthcare Case

McDermott Will & Emery’s Michael B. KimberlySarah P. Hogarth and Andrew C. Liazos, are co-counsel on a petition for certiorari before the Supreme Court of the United States on behalf of the ERISA Industry Committee (ERIC). The petition calls for review of ERIC’s legal challenge to the City of Seattle’s hotel healthcare “play or pay” ordinance. The ordinance mandates hospitality employers make specified monthly healthcare expenditures for their covered local employees if their healthcare plans do not meet certain requirements. The petition demonstrates that Seattle’s ordinance is a clear attempt to control the benefits provided under medical plans in violation of the preemption provision under the Employee Retirement Income Security Act of 1974, as amended (ERISA). This case is of significant national importance. Several other cities have proposed making similar changes, and complying with these types of ordinances will substantially constrain the ability of employers to control the terms of their medical plans on a uniform basis. ERIC’s petition is joined by several trade associations, including the US Chamber of Commerce, the American Benefits Council and the Retail Industry Leaders Association.

Read ERIC’s petition for writ of certiorari here.

Read ERIC’s statement here.

 

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Supreme Court to Consider Whether the FAA Mandates Arbitration of PAGA Actions

On Dec. 15, 2021, the United States Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana, and likely will decide by summer 2022 whether the Federal Arbitration Act (FAA) preempts California public policy and requires enforcement of arbitration agreements that purport to waive an employee’s ability to pursue representative actions under the California Private Attorneys General Act (PAGA). Employers have been waiting for the Supreme Court to take up this issue and are watching the case with interest.

Currently, per the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, arbitration agreements that waive an employee’s right to pursue PAGA representative actions are considered void and unenforceable. In Iskanian, the California Supreme Court held the FAA does not preempt California state law prohibiting prospective PAGA waivers because PAGA actions are between the employer and the state, not the employee. Thus, the state of California is the real party in interest, not the employee bringing suit, and although the employee may have executed a binding arbitration agreement, the state of California did not. Thus, arbitration agreements that purport to waive the right, expressly or otherwise, to bring a PAGA representative action are not enforceable.

In Viking River, the employee filed a PAGA representative action seeking civil penalties for various alleged violations of the California Labor Code, despite signing an arbitration agreement with her employer agreeing to resolve all future employment-related disputes with the employer via individual arbitration. Relying on the agreement, the employer moved to compel the action to arbitration. The trial court denied the motion, and the Court of Appeal affirmed the denial citing California state law as articulated in Iskanian. The California Supreme Court subsequently denied the employer’s petition for review.

Viking River then petitioned the U.S. Supreme Court for certiorari, relying on the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion and Epic Systems Corp. v. Lewis. These decisions held that courts may not disregard bilateral arbitration agreements or reshape traditional individualized arbitration by mandating class-wide arbitration procedures without all parties’ consent. Viking River argued the Supreme Court needed to review the case to reaffirm the FAA and national policy in favor of arbitration. Viking River further argued review was necessary to ensure that Concepcion and Epic promote bilateral arbitration, rather than simply result in “representational litigation” under PAGA by those who agreed to arbitrate individually. In granting review, the Supreme Court will decide “[w]hether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

This will be a closely watched decision for both sides of the bar and will likely have a groundbreaking effect on California employment litigation. Should the Supreme Court decide in Viking River’s favor, PAGA-only actions, which have become the preference of California plaintiffs’ attorneys in the face of arbitration agreements containing class action waiver provisions, will largely become a thing of the past for those employers who mandate individual arbitration for employees. Although it is by no means certain how the Supreme Court will decide this issue, employers should certainly be ready to revisit any arbitration agreements with California employees and consider what if any changes the ultimate ruling may warrant.

For more litigation legal news, click here to visit the National Law Review.
©2021 Greenberg Traurig, LLP. All rights reserved.

EPA’s Stormwater General Permit is Safe. Does it Matter?

A Colorado-based NGO has dropped its 9th Circuit lawsuit challenging EPA’s Multi-Sector General Permit for stormwater discharges associated with industrial facilities.

On one hand, this is a victory for EPA which apparently offered nothing to settle the case before the NGO threw up its hands.

On the other hand, the General Permit is only applicable in Massachusetts, New Hampshire and New Mexico, the three states that have not been delegated the authority to issue such a permit (as well as tribal lands and other lands not subject to state jurisdiction).

Why did the NGO bring this suit to begin with?  Did it hope that the Biden Administration EPA would, when push came to shove, do something dramatically different than the Trump Administration EPA?

Whatever the reason, the NGO has apparently concluded that the current law and permit give it plenty of grounds to bring suits over stormwater discharges in the 9th Circuit and elsewhere.  There are already several such imaginative suits pending on the west coast.

Are the regulators in Massachusetts less able to issue and enforce stormwater permits than than their colleagues in 47 other states?  The answer is of course not.  They are completely able and more able than most.  And they already have authority under state laws and regulations that are broader in their reach than the federal law.

But the Massachusetts legislature has stood in the way, apparently because it doesn’t want to bear the costs of regulating in this area borne by 47 other states.  Uncertainty and the threat, if not the actuality, of litigation has been the unfortunate result of this dereliction for the regulated community, including the municipalities in which we live.

We deserve better.

The Center for Biological Diversity (CBD) is dropping its legal challenge to EPA’s industrial stormwater general permit that sought stricter regulation of plastics pollution after settlement discussions were unfruitful, according to an attorney familiar with the litigation.

Article By Jeffrey R. Porter of Mintz

For more environmental legal news, click here to visit the National Law Review.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

H.R. 3684: Infrastructure Investment and Jobs Act

On November 5, the U.S. House of Representatives approved a $1.2 trillion infrastructure spending bill that will make historic investments in core infrastructure priorities including roads and bridges, rail, transit, ports, airports, the electric grid, and broadband.

The legislation, titled the Infrastructure Investment and Jobs Act (“IIJA”), will have major implications for states and municipalities of all sizes, as well as the entities involved in responding to governments’ needs for hard and cyber infrastructure.

Improvements to roadways, ports and mass transit are the focus of the legislation and the majority of the funding is targeted at these traditional hard infrastructure projects. U.S. Senator Rob Portman (R-OH) has championed the massive infrastructure bill and pushed for its passage.

This weekend, Senator Portman noted the massive impact the IIJA will have on Ohio, highlighting the bill’s bridge investment program which will award competitive grants to certain governmental entities to improve the condition of bridges. “This additional federal funding means we are one step closer to a solution for the Brent Spence Bridge,” Portman said.

The Brent Spence Bridge, which connects Cincinnati, Ohio with Covington, Kentucky has one of the busiest trucking routes in the nation. Questions about its safety and long shutdowns for repair have long concerned area residents as well as the business owners responsible for the more than $400 billion of freight which passes over the bridge every year.

While hard infrastructure priorities like bridge maintenance, port modernization, freight rail, and highway improvements account for a majority of the new spending appropriated by the bill (which totals $550 billion over five years), a sizable portion is dedicated to the expansion of broadband networks and the improvement of cybersecurity.

The new cybersecurity grant program and record-setting investments in broadband development could be game changing for state and local leaders wishing to modernize and protect their communities in these ways.

The U.S. Senate approved the IIJA in August 2020. Friday’s vote means the infrastructure bill will now move to the desk of President Joe Biden, who has indicated a bill signing ceremony will happen soon. Answers to questions about the billions of dollars in new infrastructure grants and programming are below.

Question: How will the money be distributed? 

Answer: The IIJA contains formulaic allocations of funds as well as earmarks and competitive grants. Some categories and sub-categories contain both non-competitive and competitive grants.

  • NON-COMPETITIVE FUNDING ALLOCATION PROCESSES
    • Formulas dictated by the bill are based on criteria like state population, or, potentially for specific items, users (ex: transit funds potentially determined by ridership)
    • Once the money is directed to the states, the local bureaucrats are able to make the important decisions about which projects deserve the funding.
    • States can also decide to allocate some of the funding to the county or city governments within their state
  • EARMARKS AND COMPETITIVE GRANT PROCESSES
    • Earmarks override state plans for how infrastructure funds should be spent. “Earmarks come out of the money that the state was going to get anyway.”
    • Localities must compete for Competitive Grants via an application process. The U.S. Department of Transportation’s Discretionary Grant Process is officially outlined on their website.
    • Generally, the award of competitive grants can be influenced by advocates who confer with decisionmakers in the Executive Branch about the merits of certain proposals.

Question: Which projects will qualify for funding?

Answer: The bill details specific funding streams for the specific projects included in its provisions. Categories of projects included in the $550 billion in new spending are below.

  • Roads, Bridges, & Major Projects: $110B — Funds new, dedicated grant program to replace and repair bridges and increases funding for the major project competitive grant programs. Preserves the 90/10 split of federal highway aid to states.
  • Passenger and Freight Rail: $66B — Provides targeted funding for the Amtrak National Network for new service and dedicated funding to address repair backlogs. Increases funding for freight rail and safety.
  • Safety and Research: $11B — Addresses highway, pedestrian, pipeline, and other safety areas (highway safety accounts for the bulk of this funding).
  • Public Transit: $39.2B — Funds nation’s transit system repair backlog, which includes buses, rail cars, transit stations, track, signals, and power systems. This allocation also includes money to create new bus routes and increase accessibility to public transit for those with physical mobility challenges.
  • Broadband: $65B — Funds grants to states for broadband deployment and other efforts to address access issues in rural areas and low-income communities. Expands eligible private activity bond projects to include broadband infrastructure.
  • Airports: $25B — Increases Airport Improvement grant amounts for runways, gates, & taxiways and authorizes a new Airport Terminal Improvement program.
  • Ports and Waterways: $17.4B — Provides funding for waterway and coastal infrastructure, inland waterway improvements, port infrastructure, and land ports of entry through the Army Corps, DOT, Coast Guard, the GSA, and DHS.
  • Water Infrastructure: $54B — Provides a $15 billion for lead service line replacement and $10 billion to address PFAS in water, in addition to other items.
  • Power and Grid: $65B — Funds grid reliability and resiliency projects and support for a Grid Development Authority; critical minerals and supply chains for clean energy technology; key technologies like carbon capture, hydrogen, direct air capture, and energy efficiency; and energy demonstration projects from the bipartisan Energy Act of 2020.
  • Resiliency: $46B — Funds cybersecurity projects to address critical infrastructure needs, flood mitigation, wildfire, drought, coastal resiliency, waste management, ecosystem restoration, and weatherization.
  • Low-Carbon and Zero-Emission School Buses & Ferries: $7.5B — Funds and authorizes the adoption of low-carbon and zero-emission school buses, including through hydrogen, propane, LNG, compressed natural gas, biofuel, and electric technologies. Provides support for a pilot program for low emission ferries and rural ferry systems.
  • Electric Vehicle Charging: $7.5B — Funds alternative fuel corridors and a national build out of electric vehicle charging infrastructure. The federal funding will have a particular focus on rural and/or disadvantaged communities.
  • Reconnecting Communities: $1B — Provides dedicated funding for planning, design, demolition, and reconstruction of street grids, parks, or other infrastructure (funding is especially targeted at infrastructure which is deteriorating due to age).
  • Addressing Legacy Pollution: $21B — Funds to clean up brownfield and superfund sites, reclaim abandoned mine lands, and plug orphan oil and gas wells, improving public health and creating good-paying jobs.

Article By Katherine M. Caprez of Roetzel & Andress LPA

For more legislative and legal news, read more from the National Law Review.

©2021 Roetzel & Andress

OFAC Reaffirms Focus on Virtual Currency With Updated Sanctions Law Guidance

On October 15, 2021, the US Department of the Treasury’s Office of Foreign Asset Control (OFAC) announced updated guidance for virtual currency companies in meeting their obligations under US sanctions laws. On the same day, OFAC also issued guidance clarifying various cryptocurrency-related definitions.

Coming on the heels of the Anti-Money Laundering Act of 2020—and in the context of the Biden administration’s effort to crackdown on ransomware attacks—the recent guidance is the latest indication that regulators are increasingly focusing on virtual currency and blockchain. In light of these developments, virtual currency market participants and service providers should ensure they are meeting their respective sanctions obligations by employing a “risk-based” anti-money laundering and sanctions compliance program.

This update highlights the government’s continued movement toward subjecting the virtual currency industry to the same requirements, scrutiny and consequences in cases of noncompliance as applicable to traditional financial institutions.

IN DEPTH

The release of OFAC’s Sanctions Compliance Guidance for the Virtual Currency Industry indicates an increasing expectation for diligence as it has now made clear on several occasions that sanctions compliance “obligations are the same” for virtual currency companies who must employ an unspecified “risk-based” program (See: OFAC Consolidated Frequently asked Questions 560). OFAC published it with the stated goal of “help[ing] the virtual currency industry prevent exploitation by sanctioned persons and other illicit actors.”

With this release, OFAC also provided some answers and updates to two of its published sets of “Frequently Asked Questions.”

FAQ UPDATES (FAQ 559 AND 546)

All are required to comply with the US sanctions compliance program, including persons and entities in the virtual currency and blockchain community. OFAC has said time and again that a “risk-based” program is required but that “there is no single compliance program or solution suitable for all circumstances” (See: FAQ 560). While market participants and service providers in the virtual currency industry must all comply, the risk of violating US sanctions are most acute for certain key service providers, such as cryptocurrency exchanges and over-the-counter (OTC) desks that facilitate large volumes of virtual currency transactions.

OFAC previously used the term “digital currency” when it issued its first FAQ and guidance on the subject (FAQ 560), which stated that sanctions compliance is applicable to “digital currency” and that OFAC “may include as identifiers on the [Specially Designated Nationals and Blocked Persons] SDN List specific digital currency addresses associated with blocked persons.” Subsequently, OFAC placed certain digital currency addresses on the SDN List as identifiers.

While OFAC previously used the term “digital currency,” in more recent FAQs and guidance, it has used a combination of the terms “digital currency” and “virtual currency” without defining those terms until it released FAQ 559.

In FAQ 559, OFAC defines “virtual currency” as “a digital representation of value that functions as (i) a medium of exchange; (ii) a unit of account; and/or (iii) a store of value; and is neither issued nor granted by any jurisdiction.” This is a broad definition but likely encompasses most assets, which are commonly referred to as “cryptocurrency” or “tokens,” as most of these assets may be considered as “mediums of exchange.”

OFAC also defines “digital currency” as “sovereign cryptocurrency, virtual currency (non-fiat), and a digital representation of fiat currency.” This definition appears to be an obvious effort by OFAC to make clear that its definitions include virtual currencies issued or backed by foreign governments and stablecoins.

The reference to “sovereign cryptocurrency” is focused on cryptocurrency issued by foreign governments, such as Venezuela. This is not the first time OFAC has focused on sovereign cryptocurrency. It ascribed the use of sovereign backed cryptocurrencies as a high-risk vector for US sanctions circumvention. Executive Order (EO) 13827, which was issued on March 19, 2018, explicitly stated:

In light of recent actions taken by the Maduro regime to attempt to circumvent U.S. sanctions by issuing a digital currency in a process that Venezuela’s democratically elected National Assembly has denounced as unlawful, hereby order as follows: Section 1. (a) All transactions related to, provision of financing for, and other dealings in, by a United States person or within the United States, and digital currency, digital coin, or digital token, that was issued by, for, or on behalf of the Government of Venezuela on or after January 9, 2018, are prohibited as of the effective date of this order.

On March 19, 2018, OFAC issued FAQs 564, 565 and 566, which were specifically focused on Venezuela issued cryptocurrencies, stating that “petro” and “petro gold” are considered a “digital currency, digital coin, or digital token” subject to EO 13827. While OFAC has not issued specific FAQs or guidance on other sovereign backed cryptocurrencies, it may be concerned that a series of countries have stated publicly that they plan to test and launch sovereign backed securities, including Russia, Iran, China, Japan, England, Sweden, Australia, the Netherlands, Singapore and India. With the release if its most recent FAQs, OFAC is reaffirming that it views sovereign cryptocurrencies as highly risky and well within the scope of US sanctions programs.

The reference to a “digital representation of fiat currency” appears to be a reference to “stablecoins.” In theory, stablecoins are each worth a specified value in fiat currency (usually one USD each). Most stablecoins were touted as being completely backed by fiat currency stored in segregated bank accounts. The viability and safety of stablecoins, however, has recently been called into question. One of the biggest players in the stablecoin industry is Tether, who was recently fined $41 million by the US Commodities Futures Trading Commission for failing to have the appropriate fiat reserves backing its highly popular stablecoin US Dollar Token (USDT). OFAC appears to have taken notice and states in its FAQ that “digital representations of fiat currency” are covered by its regulations and FAQs.

FAQ 646 provides some guidance on how cryptocurrency exchanges and other service providers should implement a “block” on virtual currency. Any US persons (or persons subject to US jurisdiction), including financial institutions, are required under US sanctions programs to “block” assets, which requires freezing assets and notifying OFAC within 10 days. (See: 31 C.F.R. § 501.603 (b)(1)(i).) FAQ 646 makes clear that “blocking” obligations applies to virtual currency and also indicates that OFAC expects cryptocurrency exchanges and other service providers be required to “block” the virtual currency at issue and freeze all other virtual currency wallets “in which a blocked person has an interest.”

Depending on the strength of the anti-money laundering/know-your-customer (AML/KYC) policies employed, it will likely prove difficult for cryptocurrency exchanges and other service providers to be sure that they have identified all associated virtual currency wallets in which a “blocked person has an interest.” It is possible that a cryptocurrency exchange could onboard a customer who complied with an appropriate risk-based AML/KYC policy and, unbeknownst to the cryptocurrency exchange, a blocked person “has an interest” in one of the virtual currency wallets. It remains to be seen how OFAC will employ this “has an interest” standard and whether it will take any cryptocurrency exchanges or other service providers to task for not blocking virtual currency wallets in which a blocked person “has an interest.” It is important for cryptocurrency exchanges or other service providers to implement an appropriate risk-based AML/KYC policy to defend any inquiries from OFAC as to whether it has complied with the various US sanctions programs, including by having the ability to identify other virtual currency wallets in which a blocked person “has an interest.”

UPDATED SANCTIONS COMPLIANCE GUIDANCE

OFAC’s recent framework for OFAC Compliance Commitments outlines five essential components for a virtual currency operator’s sanctions compliance program. These components generally track those applicable to more traditional financial institutions and include:

  1. Senior management should ensure that adequate resources are devoted to the support of compliance, that a competent sanctions compliance officer is appointed and that adequate independence is granted to the compliance unit to carry out their role.
  2. An operative risk assessment should be fashioned to reflect the unique exposure of the company. OFAC maintains both a public use sanctions list and a free search tool for that list which should be employed to identify and prevent sanctioned individuals and entities from accessing the company’s services.
  3. Internal controls must be put in place that address the unique risks recognized by the company’s risk assessment. OFAC does not have a specific software or hardware requirement regarding internal controls.
    1. Although OFAC does not specify required internal controls, it does provide recommended best practices. These include geolocation tools with IP address blocking controls, KYC procedures for both individuals and entities, transaction monitoring and investigation software that can review historically identified bad actors, the implementation of remedial measures upon internal discovery of weakness in sanction compliance, sanction screening and establishing risk indicators or red flags that require additional scrutiny when triggered.
    2. Additionally, information should be obtained upon the formation of each new customer relationship. A formal due diligence plan should be in place and operated sufficiently to alert the service provider to possible sanctions-related alarms. Customer data should be maintained and updated through the lifecycle of that customer relationship.
  4. To ensure an entity’s sanctions compliance program is effective and efficient, that entity should regularly test their compliance against independent objective testing and auditing functions.
  5. Proper training must be provided to a company’s workforce. For a company’s sanctions compliance program to be effective, its workforce must be properly outfitted with the hard and soft skills required to execute its compliance program. Although training programs may vary, OFAC training should be provided annually for all employees.

KEY TAKEAWAYS

As noted in OFAC’s press release issued simultaneously with the updated FAQ’s, “[t]hese actions are a part of the Biden Administration’s focused, integrated effort to counter the ransomware threat.” The Biden administration’s increased focus on regulatory and enforcement action in the virtual currency space highlights the importance for market participants and service providers to implement a robust compliance program. Cryptocurrency exchanges and other service providers must take special care in drafting and implementing their respective AML/KYC policies and in ensuring the existence of risk-based AML and sanctions compliance programs, which includes a periodic training program. When responding to inquiries from OFAC or other regulators, it will be critical to have documented evidence of the implementation of a risk-based AML/KYC program and proof that employees have been appropriately trained on all applicable policies, including a sanctions compliance policy.

Ethan Heller, a law clerk in the firm’s New York office, also contributed to this article.

© 2021 McDermott Will & Emery
For the latest in Financial, Securities, and Banking legal news, read more at the National Law Review.

Top Legal Industry News for August 2021: Law Firm Pro Bono, Hiring & Innovation

Welcome back to another edition of the National Law Review’s legal industry news column. Read on for the latest news on law firm pro bono, innovation and hiring as selected by the NLR’s editorial team.

Law Firm Hiring and Moves

Elizabeth Hermann Smith joined Mayer Brown’s Chicago office as a partner in their Banking & Finance practice group. She represents clients in all areas of the financial industry, including investors, borrowers, administrative agents, lenders and more. Ms. Smith’s specialty is in the field of leveraged finance, where she has focused on buyouts, dividend recapitalizations, and other financial transactions.

“Continuing to expand our leveraged finance capabilities, particularly with private credit funds, is a primary goal of the firm’s Banking & Finance practice. Elizabeth’s addition reflects our commitment to growth and strengthens our global finance offerings,” said Frederick Fisher, a co-leader of Mayer Brown’s global Lending group.

Mayer Brown also added Brett E. Moskowitz as Counsel to the Banking & Finance practice group. Located in the firm’s Charlotte office, Mr. Moskowitz focuses on bilateral and syndicated loan transactions, specializing in acquisition financing, real estate financings, and cash flow and asset-based lending.

Campos Mello Advogados added Antonio Tovo as a partner in the firm’s Corporate Criminal Law, Compliance and Cybersecurity practice group through an agreement with DLA Piper. Mr. Tovo works  in industries such as agriculture, real estate, healthcare, and hospitality.

Mr. Tovo works in Campos Mello Advogados’ São Paulo office. Ricardo Caiado Lima, a partner at Campos Mello Advogados: “We’re delighted to announce that Antonio […]  has joined our team. We’re seeing significant growth in our corporate criminal law and cybersecurity practices, and it is key for us to have highly qualified professionals with extensive experience, like Antonio […] .”

Robinson+Cole  added partner Danielle H. Tangorre to the firm’s Health Law group. At the firm’s Albany office, she will focus on guiding clients through state and federal health law regulations, in particular abuse and fraud laws such as Stark Law and the Anti-Kickback Statutes. Further, Ms. Tangorre has experience in  healthcare transactional matters,  litigation and  HIPAA compliance.

“Danielle has impressive experience and I’m delighted to welcome her to our team,” says Rhonda J. Tobin, Managing Partner at Robinson+Cole. “Continuing to expand the depth and geographical diversity of our health law practice is another step in the execution of our strategic plan to expand some of our strongest practices in our most strategic locations.”

Steptoe & Johnson PLLC opened three new offices in Texas located in Dallas, San Antonio, and Collin County.  Steptoe & Johnson’s new Texas operation includes –eleven new attorneys specializing in an array of fields including  commercial real estate, corporate transactions, energy, and tax law. The Dallas, San Antonio, and Collin County offices will be managed by Elizabeth CromwellKatherine David, and Brad Fletcher, respectively.

Steptoe & Johnson CEO, Christopher L. Slaughter said “These locations represent a strategic investment for the firm to better serve our existing clients in Texas and widen our scope of services to new clients. Our new lawyers bring substantial experience and knowledge to the firm’s practices. They are valued additions to the Steptoe & Johnson team.”

Legal Industry Recognition

Reginald Turner of Clark Hill PLLC is the new President of the American Bar Association (ABA).  Mr. Turner specializes in government policy and labor and employment matters and served as President of the National Bar Association and the State Bar of Michigan in the past. Mr. Turner will serve his role as President of the ABA through August 2022.

“Serving as ABA president and representing the legal profession is an honor. The ABA is committed to advancing the rule of law and increasing access to justice. As president, I will work tirelessly towards achieving those goals,” said Mr. Turner.

Ankura is one of 83 firms to contribute intelligence to the 2021 Verizon Data Breach Investigations Report (DBIR), which provides an analysis of data breaches and security incidents and provides ways to proactively mitigate future risks. The Verizon Data Breach Investigations report is important for law firms because of the technical information and metrics that are associated with cyber-attacks. Ankura’s team provided intelligence related to almost one hundred cyber matters including ransomware, espionage and other financially motivated actions.

“Leaders at every level need to understand technology and the benefits and risks it poses to their organizations.  The 2021 Verizon Data Breach Investigations Report does an extraordinary job capturing many of these risks, and Ankura’s inclusion on the DBIR team is testament to the quality of work and collaboration our team brings to every engagement, every day,” says Hon. Patrick J. Murphy of Ankura’s Cybersecurity practice.

The International Association of Defense Counsel (IADC) announced Adam M. Sheinvold of Eckert Seamans Cherin & Mellott, LLC  their team. The IADC is a legal organization for attorneys who represent corporate and insurance interests designed to help members develop skills, promote professionalism and facilitate camaraderie among clients.

Mr. Sheinvold brings the expertise of commercial and business litigation, regulatory and administrative litigation and product liability defense to the IADC team. “I am honored to be invited as a new member of the prestigious International Association of Defense Counsel and to join my distinguished colleagues of the corporate defense bar who rely on the IADC to provide valuable, high-level education and professional support and development opportunities,” said Mr. Sheinvold.

Legal Innovation & Pro Bono Programs

In July, Ropes & Gray hosted a “Legal Bootcamp” in partnership with BUILD (Broader Urban Involvement & Leadership Development), a Chicago youth development organization that focuses on gang intervention and violence prevention.

“A hallmark of Ropes & Gray Chicago has always been our commitment to the Chicago community,” said office managing partner Paulita Pike. “This dedication is evident by the extensive efforts from our Chicago office family in launching the Legal Bootcamp. We’re thrilled at the positive responses we’ve received from the students and BUILD, and I’m proud of my colleagues.”

Ropes & Gray worked with five high school and college age students to participate in a three week pilot program, which highlighted professions in the legal industry, including judges, attorneys and commercial support professionals. The curriculum included a corporate legal clinic, a speaker series and a preliminary injunction hearing workshop.

“Launching our inaugural Legal Bootcamp, together with BUILD, has been a highlight for our Chicago office over this summer,” said Ropes & Gray litigation and enforcement partner Tim Farrell. “We hope that by giving students who otherwise would not have access to or a background in the legal industry a front row seat at a corporate law firm, we’re advancing our mission of inclusion while hopefully the students are getting a broader perspective of the world of possibilities that lie ahead for them.”

Barnes & Thornburg selected five undergraduate students as members of the first class of its Pre Law Scholars Program, which aims to assist students’ pursuing a law degree. Through the program, Barnes & Thornburg will cover the cost of the students’ Law School Admission Test (LSAT) and LSAT prep coursework, as well as helping with the cost of law school applications. Additionally, attorney mentors from Barnes & Thornburg will work with the students to help guide them through law school.

“We are very excited to welcome the inaugural class of Prelaw Scholars to the Barnes & Thornburg family. They are all amazingly accomplished individuals and we are thrilled to be a part of their journey to law school,” said Sarah Evenson, Barnes & Thornburg’s director of law school programs. “Our hope is this program not only lessens the financial burden and administrative obstacles of applying to law school, but also provides key mentoring connections helping to prepare them for law school and ultimately rocket them to the legal career they desire.”

The Pre-Law Scholar program is presented in conjunction with Barnes & Thornburg’s Racial Justice Committee, which strives to support diverse candidates interested in pursuing law as a career.

“Our core belief as a firm and as a committee was to identify ways to build relationships with a pipeline of diverse legal talent and to mentor these aspiring legal professionals as they prepare to enter law school. The Prelaw Scholars Program does just that and I’m proud to be a part of it,” said William A. Nolan, member of the firm’s management committee and Racial Justice Committee.

The first class includes:

  • Phillip Arrington IV, Loyola University Chicago, B.A. in Political Science

  • Natalie Frazier, Emory University, B.A. in Women’s Gender and Sexualities Studies

  • Esther Oluwapelumi Durosinmi, Loyola University Chicago, B.A. in Political Science

  • Alexa M. Carpenter, Central State University, B.S. Criminal Justice

  • Jasleen Gill, University of California Berkeley, B.A. Philosophy and Legal Studies

Benchmark Litigation included Bradley Arant Boult Cummings partners Leigh Anne HodgeLela M. Hollabaugh and Kimberly B. Martin on its 2021 Benchmark Top 250 Women in Litigation list, developed through client feedback and research.

“Leigh Anne, Lela and Kim continue to demonstrate superior skill and client success in their litigation practices, and we are proud to see them recognized once again in this prestigious list,” said Bradley Chairman of the Board and Managing Partner Jonathan M. Skeeters.

Ms. Hodge is leader of the Litigation Practice Group and a member of the firm’s Healthcare Practice Group and is based in the Birmingham office. She represents clients in the healthcare industry in cases involving product liability litigation, medical malpractice litigation, peer review and staff privileges matters, administrative hearings before licensure boards, ERISA litigation, Medicare Advantage plan litigation, managed care litigation, insurance disputes and insurance fraud cases.

Ms. Hollabaugh works in the firm’s Nashville office, and advises leading natural gas pipeline companies and other infrastructure clients on issues involving location, land acquisition, construction and operations. She recently co-authored an amicus curiae brief to the U.S. Supreme Court supporting the industry’s position on the scope of the Natural Gas Act and the state’s 11th Amendment immunity.

Ms. Martin focuses on general litigation with an emphasis on medical device and pharmaceutical products liability litigation. She is based in the firm’s Huntsville office, and recently served as trial counsel defending a nationwide hospice provider in a three-month False Claims Act trial brought by the Department of Defense, which resulted in a dismissal.

Copyright ©2021 National Law Forum, LLC

Article By Hanna Taylor, Chandler Ford and Rachel Popa of The National Law Review / The National Law Forum LLC

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

Tracey Goldvarg joins the National Law Review as Business Development Director

CHICAGO (PRWEB) SEPTEMBER 15, 2020

The National Law Review (NLR), one of the highest volume business law news services in the United States, announced that Tracey Goldvarg joined the company as Business Development Director. Goldvarg brings extensive legal business development and B to B publishing experience from her previous leadership roles at American Lawyer Media (ALM), Today’s General Counsel, and Inside Counsel. Goldvarg’s wealth of knowledge and legal industry know-how will enhance the National Law Review’s initiatives involving various advertising, promotional and other new product offerings.

The National Law Review is a leading source of information for companies and individuals looking for guidance on compliance and regulatory matters. The NLR’s COVID-19 pandemic coverage garnered over 4.3 million readers in both March and April of this year, and the NLR’s pandemic coverage continues following Congressional and Executive directives and local Coronavirus mandates.

Goldvarg joins the National Law Review at an exciting time, when the company is poised for exponential growth as traffic levels to the National Law Review have tripled in the last year.

Jennifer Schaller, Managing Director of the National Law Review:

“We are excited to welcome Tracey to our team. Her depth of experience in the publishing and in the legal and financial services fields is invaluable as we continue to grow and develop new markets, expand coverage in new areas and amplify our product offerings to our clients and in new verticals. Tracey’s upbeat attitude and exceptional commitment to client service is just what we need to keep our momentum going.”

Goldvarg:

“I am thrilled to be joining such a dynamic and nimble organization at such a pivotal time in its growth. I look forward to continuing our on-going collaboration and welcome the opportunity to join a women-owned organization, that values the insights and talents of its team-members and has such high standards of customer service to its clients. Their client retention numbers are unparalleled.”

The NLR is a certified women-owned business enterprise that reports breaking legal news on emerging and on-going business issues ranging from business immigration to the regulatory and operational challenges of the Coronavirus pandemic.

The National Law Review’s U.S based editorial team publishes around the clock and optimizes legal thought leadership for search engine visibility, and for distribution via news syndication partners. The NLR also promotes our published content through their extensive social media network, and to their over 135,000 daily newsletter subscribers.

About the National Law Review: The National Law Review is a daily legal news website with a mission to provide objective, reliable and practical litigation, legislative and administrative legal news and analysis through partnership with law firms, other legal and business organizations and our own staff journalists. The NLR’s online platform was developed by corporate attorneys and is the online descendant of a legal publication tracing its roots back to 1888. With the talents of our own writers and contributing authors, the National Law Review has grown into one of the highest volume business law publications in the U.S., with an average of 2 million visitors each month. Visit us at www.NatLawReview.com.

Contact:

JENNIFER BUECHELE SCHALLER
E. EILENE SPEAR
708-357-3317

National Law Review: Coronavirus Update

The National Law Review continues normal operations
as we are a virtual company.

If you have any questions or need assistance, please contact us at Info@NatLawReview.com or at 708-357-3317 M-F 7-7 and midday weekends and holidays.
Due to the virus and surrounding legal issues our traffic has soared to over 200,000 visitors and over 250,000 page views yesterday alone. We’re on track to have 1,500,000+ visitors in March.
We sincerely hope for your family and co-workers to remain safe – if you’d like resources about how businesses and individuals are navigating the pandemic, we have a dedicated page with over 200 articles written by the nation’s top law firms on the topic.  Groups including SHRM have directly linked to this resource page.
If your company or professional association needs a consolidated, reliable resource that is updated hourly, we encourage linking to our Coronavirus Resource hub.

Legal News and Updates for January 2020: Law Firm Moves, Legal Industry Trends

Law firms and the businesses that surround them have hit the ground running in 2020, with tons of announcements, big moves by law firms and innovation across the entire field.  Read on for a small taste of some of the exciting developments in the legal industry.

Hiring and Law Firm Moves

Patent preparation and prosecution law firm, Harrity & Harrity, LLP recently announced the firm had added four new patent attorneys: Joseph Lentivech, Patrick Hansen, McCord Rayburn, and Bret Tingey; as well as two new law clerks: Sara Ko and Abigail Troy.

Joseph Lentivech is based in Mobile, Alabama, and returns to Harrity & Harrity to practice after his service as an Administrative Patent Judge at the United States Patent Trademark Office (USPTO).  His practice focuses on the prosecution of patent applications in electrical and computer technologies, encompassing telecommunications and computer hardware and software.  Patrick Hansen will be based in the Raleigh office, and has experience representing petitioners and patent owners in post-grant proceedings, with specialization in patent applications for electrical, computer and mechanical technologies.  McCord Rayburn has international patent experience, coordinating inbound national state patent application filings for foreign corporations, and he will work out of the law firm’s Charlotte office.  Bret Tingey focuses on patent preparation and prosecution in mechanical and electrical technology, with extensive experience writing memos and briefs in IP litigation–including some submitted to the US Supreme Court–and he will be based in Raleigh.  Law Clerks Sora Ko and Abigail Troy both have experience in patent preparation and prosecution before the USPTO and will work out of Harrity & Harrity’s DC office.

Paul Harritiy, a partner in the firm, called the group “superstars” and says, “we are excited for this group to join our team and assist the firm in continuing to provide excellent customer service to our Patent 300 clients.”

Lipson Neilson started off 2020 by announcing it has added nationally-recognized Surety & Fidelity Law attorneys Phillip G. AlberJeffrey M. FrankOmar J. Harb, and Jessica L. Wynn, all four previously with Alber Frank PC law firm. Alber will head up a new Lipson Neilson office in Grosse Pointe, Michigan, and Frank, Harb and Wynn will be based in the firm’s Bloomfield Hills, Michigan office.

Jeffrey Neilson, a co-founder of the firm, says,  “They’re a tremendous and immediate asset to our firm in the area of Surety & Fidelity Law and bring significant expertise in other areas of law and litigation as well. I think their decision to move to Lipson Neilson is a good indication of our reputation, our work and our culture.”

In a move that will strengthen the firm’s healthcare and corporate practices, Manatt announced that Paul A. Carr-Rollitt has joined as a healthcare partner in the Los Angeles office. Carr-Rollitt focuses his practice on corporate healthcare concerns, and his healthcare transaction experience includes mergers and acquisitions, joint ventures, reorganizations, affiliations, public offerings, and private equity transactions.  His practice includes advising non-traditional and traditional health care entities, and his advice is legal, business-oriented, and incorporates strategy as well as policy concerns.  Bill Bernstein, the leader of Manatt Health, calls Carr-Rollitt a “perfect fit” with Manatt’s growing practice.  Bernstein says, “He brings with him an excellent roster of clients and has a national healthcare practice, which encompasses both payers and providers.”

On his end, Carr-Rollitt says Manatt’s blending of strategy with legal advice is an approach he’s always appreciated.  “I am excited to be part of a firm that has a strong understanding of and commitment to the future of the healthcare industry and to work with some of the most forward-thinking professionals from coast to coast,” he says.

Last week, Katten announced that Mitchel C. Pahl has joined its Employee Benefits and Executive Compensation practice as a partner in the New York office. Pahl’s practice concentrates on employee benefits and executive compensation in private and public company M&A’s.  He has also been involved in high-profile corporate transactions in a variety of industries including real estate, health care, and financial services.  Additionally, he has advised clients on the operation and design of qualified retirement plans, equity incentive plans, and other compensation arrangements, as well as on negotiating executive employment agreements and separation packages.

Kate Ulrich Saracene, Katten partner and leader of the firm’s Employee Benefits and Executive Compensation practice, praises Pahl’s decades of experience across complex transactions. “Mitch also brings new capabilities to Katten with his focus on qualified retirement plans, benefit plans for non-profits and experience working with ESOPs,” says Saracene. “With the addition of Mitch, we’ve achieved our goal of building a full-service employee benefits and executive compensation practice, able to advise any type of client on any type of plan or transaction.”

Cornerstone Research started off 2020 by naming  Dr. Yesim C. Richardson as President.  In a departure for the organization, Richardson will share leadership with CEO Rahul Guha, who also took on his role on January 1, 2020.  The duo succeeds Michael E. Burton, who had served in both roles since July of 2014.

Yesim Richardson Cornerstone Research
Yesim Richardson

After a period of succession planning, the organization decided it made the most sense to divide the responsibilities of the CEO and President, and have two individuals fill those roles instead of combining them.  “At this stage in our history,” says Dr. Guha, “we believe splitting the CEO and president responsibilities ensures the most effective leadership structure for our future.” Prior to her appointment as President, Dr. Richardson served on Cornerstone Research’s board of directors, and has been active on firm governance committees.  In her new role as president, she will focus on talent strategies and service delivery, and continue to consult and support Cornerstone Research experts on litigation matters and other consulting questions.  “Cornerstone Research has always lived its values . . .we have been guided by our commitment to deliver top-quality work to our clients, provide exceptional support to our experts, and develop pathways to leadership for our outstanding staff,” says Richardson.  “We have enhanced the way we run the firm to support this commitment even more fully. I am proud and grateful to partner with Rahul as we look ahead to the continued growth and success of this extraordinary company.”

Porter Wright announced last week that Deb Boiarsky was promoted into the firm’s Chief Operating Partner position.  This development comes after the firm has grown, with two new offices and a 30-percent partner increase across the firm.  Boiarsky focuses her practice on employee benefits–specifically ERISA and IRS compliance–but in her role as the Chief Operating Partner, she will work with firm leadership to oversee day to day operations at the firm with an eye towards strategy and securing firm growth and development.   Bob Tannous, managing partner of Porter Wright and the former Chief Operating Partner, indicates that a business mentality is key to success in this role.  “Deb is known for being measured and considerate,” he points out, “and for fostering strong relationships in and outside of the firm.”

Law Firm Innovation and Developments

Kluk Farber, a female-founded law firm in New York and Los Angeles, has partnered with Vivvi Early Learning, a provider of employer-sponsored on and near-site child care, to provide children aged six weeks to five years access to near-site back-up care.  Vivvi has worked in a variety of industries with employers to provide childcare for employees, including hospitality, media, and advertising. Partnering with companies who understand childcare is a major pain point for their employees, and their solution can increase employee morale while lowering turnover and absenteeism.

Kluk Farber, already a progressive leader in the legal industry for providing flex-time and supporting work-life balance, entered into this partnership acknowledging that the way child care is traditionally set up is not ideal for working families.  “Being a female in law is not an easy feat to begin with, but having a family and achieving work-life integration? That’s nearly impossible,” she says.  “We learned of Vivvi’s transformational work through the NYC female founder community, and knew instantly that it was a resource we needed to integrate immediately.”

Norton Rose Fulbright advised on the development and implementation of the world’s first consumer-ready digital fiat currency, assisting NZIA Limited to create the currency for the Central Bank of the Bahamas.  The currency, known as “Sand Dollars” is a central bank digital currency_or CBDC–and is part of Project Sand Dollar.  Sand Dollars will be issued by the state’s central bank, and are the same as legal tender, backed by the government and used by the public.  The currency went live in digital wallets in December of 2019 and was used locally immediately after, as local businesses were onboarded through banks and other financial institutions. Now, the sand dollars are basically, legally, the same as cash.

The Bahamas was one of the first areas to develop a CBDC, and the island nation will benefit in a variety of ways; including inclusion in the financial system of unbanked and improved expenditure and tax systems. Norton Rose Fulbright Vancouver-based partner, John Kim, commented: “The innovative nature of Project Sand Dollar required us to provide equally innovative solutions to our client. Our input resulted in a system that would not only meet the requirements of current financial and regulatory regimes but actually leverage them to provide a CBDC solution that enables people to conduct more secure and instant transactions.”

Paige Justus
Paige Justus

Fortis Law Partners will now offer legal guidance on estate planning practice, assisting clients with asset-protection strategies, gift planning, and tax reduction. Paige K. Justus, a senior corporate associate with the firm, will head the practice, which will also assist clients with wealth protection strategies, wills, living trusts, powers of attorney, guardian designations for minor children and healthcare declarations. Along with individual estate planning strategies, the estate planning practice group will work with nonprofits desirous of obtaining tax-exempt status assistance.

Legal Technology and Industry Developments

Embroker, Inc, a digital insurance company, announced the Lawyers’ Professional Liability platform, ideal for both large and small law practices. This platform allows law firms across a variety of sizes to secure and enroll in legal malpractice insurance quickly, efficiently and affordably.

Embroker CEO Matt Miller says the new Embroker platform can leverage technology to improve a traditionally onerous process.   “They [attorneys] only have to spend a few minutes on each year and receive a quote from an A+ rated insurance provider,” Miller says. “By leveraging Embroker technology, our overhead is less intensive than the traditional decades-old model, and we are also able to provide lower rates that are going to be very attractive.”

Embroker will target law firms with 1-10 attorneys nationally,  as these are traditionally most impacted by the onerous process of purchasing malpractice insurance without large staffs.  The platform is currently available in 31 states, with approval pending in other states as the product is offered nationwide.

Lex Mundi recently released its Global M&A Trends Report, featuring insights from almost 70 Lex Mundi member firms from all over the world.  Each of these firms shared insights on mergers and acquisitions within their purview, focusing on key concerns facing M&A practitioners, deal activity by segment, and 2020 predictions.  The report indicated that due diligence and deal structure rank highly, with 18% and 14% of member firms respectively ranking those issues as major areas of concern.  Matters of cybersecurity and data privacy are spurring concerns in due diligence, as buyer companies are working to mitigate risk across cyber, anti-corruption, and data privacy.

Despite global disruptions such as trade wars, Brexit, and economic instability, the majority of Lex Mundi Member firms (as much as 60%) indicated they expected M&A activity to remain the same in 2020; with the top industries such as energy and power, financial services, manufacturing, technology, healthcare, and life sciences seeing heavy activity.

Last week Jennifer Schaller moderated a panel at the 27th Annual Marketing Partner Forum in Miami, Florida on Client Journey Mapping for Law Firms.  In conjunction with the discussion on Client Journey Mapping, the National Law Review is conducting a survey on elements of client journey mapping, and we will be analyzing and writing up the results.  The survey is still open, so please consider taking a few minutes to add your insights.  All responses are completely confidential.

That’s it for now.  More to come as 2020 progresses!


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For more legal industry news, see the Law Office Management section of the National Law Review.