Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

The NLRB at it Again: Blanket Rules Prohibiting Employees from Discussing Ongoing Investigations Violates NLRA Absent “Legitimate and Substantial Justification”

An article by Eric E. Hobbs of Michael Best & Friedrich LLP regarding The NLRB recently appeared in The National Law Review:

 

The National Labor Relations Board (NLRB or Board) on July 30, 2012, held that a blanket rule prohibiting employees from discussing ongoing internal investigations – for example, of employee misconduct, harassment, or criminal conduct – violates the employees’ rights under the National Labor Relations Act (NLRA) absent “legitimate and substantial justification”.

In Banner Health System, the employer’s human resources consultant, as a matter of course, had asked employees involved in internal investigations not to discuss the investigation’s details, the employees’ roles or what had been said during the consultant’s interviews while the investigation continued. In particular, she had asked employee James Navarro, whom she had interviewed as a part of an insubordination investigation, to maintain his silence. Navarro then filed an unfair labor practice charge against the employer, alleging that the consultant’s request had violated his rights under Section 7 of the NLRA, which protects, among other things, communications between employees regarding terms and conditions of employment.

The NLRB found merit to the charge and issued a complaint, which went to hearing before one of the NLRB’s administrative law judges. The judge found the employer’s conduct not to have violated Navarro’s Section 7 rights because the consultant’s request had been justified by the employer’s concern with protecting the integrity of its insubordination investigation.

The NLRB reversed its judge’s decision on that point. It held that, in order for an employer to justify a prohibition against employee communications regarding ongoing investigation, the employer must demonstrate the existence of a “substantial business justification” that outweighs the employees’ Section 7 rights. And a general concern with protecting the integrity of an investigation, according to the Board, was not substantial enough to meet the bar.

The Board gave examples of justifications that might qualify as sufficiently substantial to outweigh employees’ Section 7 rights: If a witness needed protection; if the employer reasonably believed that evidence might be destroyed or fabricated; or if maintenance of silence was necessary to prevent a “cover-up.” Notably, the Board did not say that those three circumstances were examples only, rather than an exclusive list of potentially adequate justifications. Our best educated guess is that they are examples only.

We do not have to guess, however, that the NLRB would find a blanket prohibition against communication by employees among themselves during the course of an ongoing employer investigation to be unlawful. In fact, a requirement of such silence in any case the employer cannot show substantial business justification for it will be found by the Board to violate the employer’s workers’ Section 7 rights.

The Board’s decision is not without support by its own precedent. In the late 1980s, the NLRB had held that it was unlawful under Section 7 of the Act for an employer to direct an employee who complained of sexual harassment not to talk to anyone other than her supervisors about the matter. The Board found that “anyone” could include the employee’s union representatives and that such a prohibition ran afoul of the NLRA.

The Banner Health System decision, however, greatly expands that principle. Employers now must be careful whenever directing employees not to communicate among themselves about, or to maintain as “confidential” all matters related to, an internal investigation. Protection of the integrity of the investigation is not going to be a sufficiently substantial reason for imposing such a prohibition, and the burden will be on the employer to establish that it had a “substantial business justification” for the prohibition that outweighed its employees’ rights under Section 7 of the NLRA.

In the event you believe it necessary to maintain the confidentiality of an internal investigation, we suggest that you take several steps:

  • First, make sure you are able to articulate a significant concern particular to the investigation that a failure by any witness to maintain confidentiality will result in serious, negative consequences. For instance, where employer, employee or third-party safety might be jeopardized, where a target of or participant in the investigation might become violent, where the target of or participant in the investigation might threaten or manipulate other witnesses, or where evidence might be destroyed or lost.
  • Second, be clear to limit your request for confidentiality. Limit it explicitly to confidentiality of the interview conducted, the facts known to the individual, his or her impressions and opinions, the existence of the investigation, and other of its elements. Make clear that the confidentiality is to be maintained only during the pendency of the investigation, but not afterwards. And, if possible, articulate that the confidentiality is to be maintained not just among employees but also among friends and family members.
  • Finally, do not threaten to discipline employees for breaches of confidentiality regarding the investigation at the time you communicate your confidentiality request, unless the investigation is one that clearly and “substantially” justifies such a threat.

© MICHAEL BEST & FRIEDRICH LLP

NLR 2011 Law Student Writing Competition

The National Law Review would like to remind you of the Winter Law Student Writing Contest deadline is November 21st!

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site.  No entry fee is required. Applicants can submit an unlimited number of entries each month.

  • Winning submissions will initially be published online in November and December 2011.
  • In each of these months, entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month.  Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
  • Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
  • All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Why Students Should Submit Articles:

  • Students have the opportunity to publicly display their legal knowledge and skills.
  • The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
  • Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
  • Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
  • Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
  • For an example of  a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containing useful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

  • Format – HTML (preferred) or Microsoft® Word
  • Length – Articles should be no more than 5,500 words, including endnotes.
  • Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
  • Author Biography/Law School Information –Please submit the following:
    1. Full name of author (First Middle Last)
    2. Contact information for author, including e-mail address and phone number
    3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
    4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
    5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
    6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com. 

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media.  All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Congratulations to our Spring 2011 Law Student Writing Contest Winners!

Spring 2011:

When Can You Claim A Color As Your Trademark?

In its recent decision in Christian Louboutin S.A. v. Yves Saint Laurent America, Inc., the Second Circuit held there was no “per se rule that would deny protection for use of a single color as a trademark in a particular industrial context.”  The Court found that the single color red on the sole of a women’s shoe that contrasted with the color on the upper portion of the shoe could be protected as a trademark in the fashion industry. A Federal District Court in California ruled recently, that a company’s use of the color orange for markings and text on its medical syringe could not be protected as a trademark since the color was “functional” when applied to that product. It determined that the color orange was functional in the medical industry because it signifies that a device is for oral use. So, how does this color-as-a-trademark work?

Many companies have successfully obtained trademark protection for a single color, for example,  United Parcel Service’s registration for the color brown for transportation and delivery services, Reg. 2901090; Tiffany’s multiple registrations for a particular color of  blue used on bags, boxes and various other products and services, Reg. Nos. 4177892, 2359351, 2416795, 2416794, 2184128; 3M’s registrations for yellow as a trademark for telephone maintenance instruments and POST-IT® notes, Reg. Nos. 2619345, 2390667; and Owens Corning’s registrations for the color pink for masking tape, insulation, and other products used in the building and construction industry, Reg. Nos. 3165001, 2380742, 2380445, 2090588, 1439132.

In Qualitex Co. v. Jacobson Prods. Co., the U.S. Supreme Court held that color alone may be protected as a trademark, “when that color has attained ‘secondary meaning’ and therefore identifies and distinguishes a particular brand (and thus indicates its ‘source’).” The Court held color may not be protected as atrademark when it is “functional”. There are two types of functionality: “utilitarian” and “aesthetic.” A color is functional under the utilitarian test if it is essential to the use or purpose of the product, or affects the cost or quality of the product.  A  color is aethestically functional if its exclusive use “would put a competitor at a significant non-reputation-related disadvantage”.   If color “act(s) as a symbol that distinguishes a firm’s goods and identifies their source, without serving any other significant function,” it can be protected as a trademark. So, how do you know if a color you are using or plan to use in your business can be protected as a trademark to the exclusion of your competitors?

Protecting color as a trademark can be a very powerful advantage if the color has no particular function or meaning in the industry in which it is used. However, in order to claim color as a trademark, the color must be showcased as a source indicator for products or services in its marketing campaigns and advertising materials. Good examples of this are UPS’s reference to itself as “brown” in its advertising and Owen Corning’s blatant use of the color pink in its advertising.  Both companies very clearly highlight a color in their ads and identify it strongly with their respective products and services. This type of careful and clever planning, implementation, and marketing strategy is critical to developing a strong, unique and highly recognized color trademark.

Whatever color is used, it must not be “functional” in any respect in the industry in which it is used. Various “functionality” tests have been developed by the courtsover time, and  some include:

  • whether the design (or color) yields utilitarian advantage
  • whether alternative designs (or colors) are available
  • whether advertising touts utilitarian advantages of the design (or color), and
  • whether the particular design (or color) results from a comparatively simple or inexpensive method of manufacture.

Functionality is evaluated within the context of the specific industry in which the goods or services for which color is claimed as a trademark will be offered. Had the markings on the medical devices been red instead of orange in the case before the Federal District Court in California mentioned above, it is possible that there would not have been a finding of functionality. Thus, know your industry before selecting a color on which to focus your marketing and advertising efforts.

Thinking outside the box when selecting trademarks and planning marketing strategy is critical in any industry. The explosion of social media and changes in traditional advertising and marketing methods have changed the way products and services are recognized. Companies need more unique and  nontraditional approaches for a competitive edge. Promoting non-traditional trademarks such as a color, or other unique source indicators such as sounds, scents, flavor, and product shapes, may provide a fresh method to attract and entice a wider audience.

So, get out those color wheels and start plotting a new course.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Rainmaker Retreat: Law Firm Marketing Boot Camp

The National Law Review is pleased to bring you information about the upcoming Law Firm Marketing Boot Camp:

WHY SHOULD YOU ATTEND?

Have you ever gone to a seminar that left you feeling motivated, but you walked out with little more than a good feeling? Or taken a workshop that was great on style, but short on substance?

Ever been to an event that was nothing more than a “pitch fest” that left a bad taste in your mouth? We know exactly how you feel. We have all been to those kinds of events and we hate all those things too. Let me tell you right up front this is not a “pitch fest” where speaker after speaker gets up only trying to sell you something.

We have designed this 2 day intensive workshop to be content rich, loaded with practical content.

We are so confident you will love the Rainmaker Retreat that we offer a 100% unconditional money-back guarantee! At the end of the first day of the Rainmaker Retreat if you don’t believe you have already received your money’s worth, simply tell one of the staff, return your 70-page workbook and the CD set you received and we will issue you a 100% refund.

We understand making the decision to attend an intensive 2-day workshop is a tough decision. Not only do you have to take a day off work (all Rainmaker Retreats are offered only on a Friday-Saturday), but in many cases you have to travel to the event. As a business owner you want to be sure this is a worthwhile investment of your time and money.

WHO SHOULD ATTEND?

Partners at Small Law Firms (less than 25 attorneys) Solo Practitioners and Of Counsel attorneys who are committed to growing their firm. Benefits you will receive:

Solo practitioners who need to find more clients fast on a shoe-string budget. In addition to all the above benefits, solo attorneys will receive these massive benefits:

Law Firm Business Managers and Internal Legal Marketing Staff who are either responsible for marketing the law firm or manage the team who handles the law firm’s marketing. In addition to all the above benefits, Law Firm Business Managers and Internal Legal Marketing Staff will also receive these benefits:

Of Counsel Attorneys who are paid on an “eat what you kill” basis. In addition to all the above benefits, Of Counsel attorneys will also receive these benefits:

Associates who are either looking to grow their book of new clients in the next 6-12 months or want to launch their own private practice. In addition to all the above benefits, Associates will also receive these benefits:

Campaign Money Patterns Entering New Phase in 2012 Judicial Races

The National Law Review recently published an article regarding Judicial Campaigns and Contributions by the Brennan Center for Justice at NYU School of Law:

“Special Interests Are Spending Millions to Capture Our Courts, And They Are Succeeding”

Judicial candidates spent more than $4.6 million in television advertisements this primary season, according to data released by the Brennan Center for Justice and the Justice at Stake Campaign, in an election cycle where changing spending patterns could signal a new phase in the decade-long spending battle to influence America’s state courts.

Ironically, the cumulative effects of a decade of record-setting spending could lead to less spending in some states.  Early reports suggest that some traditionally high-spending states will see less competitive elections, due to the increasing domination of their state courts by a single party after a decade of record spending.

At the same time, traditionally low-cost retention elections will see high levels of spending as interest groups pour money into unseating judges.  Super PACs are also poised to inject money into judicial races, with the potential to transform how campaigns are fought.

“Money and special interests continue to transform judicial elections around the country,” said Alicia Bannon, counsel in the Brennan Center’s Democracy Program.  “We are seeing uncontested races in traditionally high-spending states like Alabama and Ohio, where big money over the past decade delivered the high court to a single party.  In these states, overall spending is likely to be down this year.”

“The new politics of judicial elections is playing out differently in different states, but the threat everywhere is the same,” said Bert Brandenburg, executive director of Justice at Stake. “Special interests are spending millions to capture our courts, and they are succeeding.”

Nationally, there are 20 states with contestable state Supreme Court seats in 2012, with a total of 46 seats at stake, while 25 high court judges in 13 states face one-candidate retention elections, in which voters choose whether to give incumbents another term.

National TV spending data for judicial races, as well as links to ads, are available at “Judicial Elections 2012,” a new web page jointly hosted by the Brennan Center for Justice and the Justice at Stake Campaign.  The site will provide regular updates on TV ads, fundraising, and key political players in 2012 state high-court elections.  Additional analysis is also available at the Brennan Center’s “Buying Time 2012” web page.

EARLY FINDINGS IN 2012

1.  Primary spending on TV advertisements reached new heights, but some traditionally high-spending states are expected to see lower spending overall.

Based on estimates from TNS Media Intelligence/CMAG, TV advertisements this primary season surpassed $4.6 million, with advertisements appearing in seven states(AL, AK, IL, MT, OR, TX, WV).  These figures are more than quadruple the estimated TV spending in 2010’s primaries, when candidates in three states spent just over $1 million, and top the previous record $3.8 million spent in 2004 in nine state primaries.

But a different picture is emerging for the November general elections in Alabama and Ohio, two traditionally high-spending states.  While both states have led the nation in judicial election spending over the past decade, there has recently been a significant drop in Democratic candidates with strong financial backing as Republicans have taken control of both states’ supreme courts (see charts).  November election spending began falling in both states in the latter part of the decade, and spending on this year’s November election almost certainly will continue to fall compared with previous years.

Since 2006 in Ohio, and since 2010 in Alabama, Democrats in Alabama and Ohio have fielded only a few modestly funded candidates.  In Alabama, Republicans hold all nine of the high court’s seats, and Democrats this year have chosen to put forward a candidate for only one of five contested seats.  In Ohio, the only Democrat among the high court’s seven justices gained her seat through a governor’s appointment, and she faces a stiff challenge from a GOP candidate.  By contrast, no Democrats are challenging two Republican incumbents.

At the same time, winning justices in these states continue to depend heavily on a small number of super-spender groups backing their elections.  In Alabama, for instance, the Business Council of Alabama is a top financial supporter of seven of the court’s nine justices, while the Ohio Chamber of Commerce has spent heavily to elect five of the Ohio Supreme Court’s seven justices.  According to a recent study by the progressive Center for American Progress, rulings in Alabama and Ohio have swung sharply toward business interests as candidates backed by the business lobby gained a decisive advantage in state court elections over the last 10-15 years.

“The similarities in Alabama and Ohio suggest that spending on judicial elections may occur in stages,” said Adam Skaggs, senior counsel at the Brennan Center.  “Spending spikes while opposing sides battle for control in key states, and then falls sharply, along with electoral competition, when the court elections lead to a clear winner and a clear loser over several cycles.  In states with captured courts, a decline in overall election spending does not mean that special interests have abandoned their efforts to influence the courts; it just means that one side has won the current phase of the arms race.”

2. While some states are falling back in spending, others are stepping up to take their place.

Despite expected reduced spending in states with captured courts, high-cost judicial races are likely to continue to be seen across the country.

Judicial races will likely remain costly in states where high courts remain closely divided, such as Michigan, which had the nation’s most expensive judicial elections in 2010, and which has three races for Supreme Court seats this year.  In West Virginia, campaign finance disclosures indicate that candidates have already raised more than $2.5 million in connection with races for two Supreme Court seats.

Traditionally low-cost retention election races are also poised to attract special-interest dollars, including in Iowa and Florida.  In Iowa, three state high court Justices lost their seats in 2010 following a $1 million “Vote No” campaign, launched after the court’s unanimous decision legalizing marriage for same-sex couples.  This year, Justice David Wiggins, who also participated in the marriage decision, faces a retention election.  Opponents have announced their intention to campaign for Wiggins’ ouster.

In Florida, a tea party-linked group Restore Justice 2012 has announced a campaign against three Justices who voted with the majority in a ruling rejecting a constitutional amendment to allow the state to opt-out of federal health care reform.  This announcement has already triggered unprecedented fundraising: While no Florida Justices reported receiving campaign contributions between 2002 and 2010, the three Justices facing this year’s retention elections have already reported raising $974,826.

3. Super PACS may influence judicial elections

This election cycle may also see super PACs playing a role in judicial races.  In Illinois, the pro-choice group Personal PAC created the state’s first super PAC in May, following a court victory challenging Illinois’s campaign finance laws.  Prior to the creation of its super PAC, Personal PAC reportedly spent $200,000 in ads in Illinois’s judicial primary, according to the Center for Public Integrity.  And in North Carolina – one of the few states to provide public financing for judicial elections – a super PAC was recently formed in support of conservative incumbent Justice Paul M. Newby, who is also accepting public financing for his race.  With the Court’s 4-3 conservative balance on the line, this race has the potential to attract significant dollars, and usher in a new role for outside money in judicial campaigns.

Spending on TV Ads in 2012 Judicial Primaries

State

Total Spent

Candidates

Candidate Spent

Alabama

$1,391,530

   Tommy Bryan   $271,440
  Charlie Graddick   $412,810
  Chuck Malone   $598,750
  Roy Moore   $108,530

Illinois

$1,334,170

   Joy Cunningham   $135,580
  Mary Jane Theis   $1,198,590

Texas

$1,167,930

   Don Willett   $1,167,930

West Virginia

$586,050

   Letitia Chafin   $325,110
  Robin Davis   $181,350
  Louis Palmer   $28,790
  Jim Rowe   $50,800

Arkansas

$168,410

   Raymond Abramson   $103,980
  Jo Hart   $64,430

Montana

$22,110

   Elizabeth Best   $22,110

Oregon

$3,170

   Nena Cook   $3,170
  TOTAL SPENDING

$4,673,370

Highlights from the Primary Season: Million Dollar Races

  • In Illinois, Justice Mary Jane Theis spent close to $1.2 million on TV advertisements in successfully defending her seat in the Democratic primary, compared with about $136,000 in spending by her opponent Judge Joy Cunningham, and no TV spending by her other two opponents.  The pro-choice group Personal PAC also reportedly spent $200,000 in print ads attacking Theis’s opponent Aurelia Pucinski, according to the Center for Public Integrity.  Theis will face Judge James G. Riley, who ran unopposed in the Republican primary, in the general election.  Sitting Justice Rita Garman will also face a retention election this November.
  • In Texas, Justice Don Willett spent more than $1.1 million successfully defending his seat in a Republican primary.  His opponent, former Supreme Court Justice Steve Smith – who challenged Justice Willett in the 2006 Republican primary and narrowly lost by 1% of the vote – did not spend any money on TV advertisements.  Willett will face Libertarian candidate Robert Stuart Koelsch in the general election; he will not have a Democratic challenger.  In another contested primary, John Devine won the Republican nod following a primary and runoff election.  Neither Devine nor his opponents spent money on TV advertisements; Devine will not have a Democratic challenger in the general election.  In a third race, sitting Justice Nathan Hecht did not face a primary challenger, but will face San Antonio lawyer Michele Petty in the general election.
  • In Alabama, four candidates spent money on judicial advertisements in two primary races, with expenditures ranging from approximately $109,000 to $599,000.  Big spending did not necessarily translate to a win, however:  In the hotly contested race for Chief Justice, former Chief Justice Roy Moore won the nomination while being outspent by his two opponents, incumbent Charles Malone and former Attorney General Charles Graddick.  Moore gained notoriety when he was removed from office in 2003 after refusing to follow a federal judge’s order to remove a Ten Commandments monument from the state judicial building.  In the other contested primary, Judge Tommy Bryan spent $271,440 in defeating his opponent Judge Debra Jones, who did not run any TV advertisements.  Bryan will run unopposed in the general election.  Three other Justices are also seeking reelection unopposed in both the primary and general elections; none of these candidates spent money on judicial advertisements.

TV Methodology

All data on ad airings and spending on ads are calculated and prepared by TNS Media Intelligence/CMAG, which captures satellite data in that nation’s largest media markets.  CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements.  The costs reported here therefore understate actual expenditures.

The Justice at Stake Campaign is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial.  Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom – so judges can protect our Constitution, our rights and the Rule of Law.  For more about Justice at Stake, go to www.justiceatstake.org, or www.gavelgrab.org.

For Additional Information Please Contact: Seth Hoy, Brennan Center for Justice, seth.hoy@nyu.edu, 646-292-8369 or Charles Hall, Justice at Stake, chall@justiceatstake.org, 202-588-9454

© Copyright 2012 Brennan Center for Justice at New York University School of Law

7th Annual ABA GPSolo National Solo & Small Firm Conference

The National Law Review is pleased to bring you information about the upcoming 7th Annual ABA GPSolo National Solo & Small Firm Conference:

When

October 11 – 13, 2012

Where

  • Westin Seattle
  • 1900 5th Av
  • Seattle, WA, 98101
  • United States of America

The Seventh Annual ABA GPSolo National Solo & Small Firm Conference is an educational and professional forum that will discuss legal developments in the law that impact solo, general practitioners, and small firms.  The conference is designed to engage and inform attorneys at all levels of practice.  Attendees will gain practical knowledge from an expert faculty comprised of well-known nationally acclaimed speakers.

This conference will cover a wide spectrum of topics including Practice Empowerment, Technology, and Basic Skills.

Practice Empowerment topics include:

  • Law firm and client development
  • Unbundling of legal services
  • Mastering the courtroom
  • Ethics 20/20 update
  • Estate planning for same sex couples
  • Persuasive legal writing

Technology programs will explore:

  • Using an iPad in litigation
  • The best apps and technology for your practice
  • Virtual offices and cloud computing
  • The ethics of legal technology
  • Building your practice through technology and advertising

The Basic Skills programs are a must for law students, new practitioners, and those looking to change or expand practice areas. Topics include:

  • Immigration
  • Criminal Law
  • Federal Estate Tax
  • Federal Rules of Evidence
  • Bankruptcy
  • Intellectual Property
  • Real Estate
  • Business Law

The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?

The National Law Review recently published an article, The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?, by Brande Stellings of Catalyst Inc.:

 

Women, what if much of the career advice you’ve been given for getting ahead in the workplace is simply wrong?  What if, despite doing “all the right things,” you still find yourself not earning as much or advancing at the same pace as your male colleagues?

Catalyst’s report, The Myth of the Ideal Worker, the latest in its series on high-potential employees, examined the career advancement strategies of women and men to find out what strategies each used and which strategies seemed to make a difference in terms of compensation and promotion. The findings may surprise you. Some of the conventional wisdom about women in the workplace has got it all wrong.

Knowing what will and will not work is vitally important, particularly in the legal profession where women’s advancement within law firms has flatlined. The National Association of Women Lawyers (“NAWL”) annual survey of women in AmLaw 200 law firms shows that women’s representation in the equity partner ranks is 15% – the same percentage since NAWL began the survey six years ago. These numbers are not dissimilar to women in US business generally. The annual Catalyst census of women’s representation of Fortune 500 Board directors and executive officers has also stalled out in the 14-16% range.

So, which career advancement strategies are most effective? Which ones have no impact?

We’ve all heard the maxim that women don’t ask – with its implicit assumption that if women do ask, they will receive. The Catalyst report found, however, that women were more likely than men to ask for career-building experiences and training, andjust as likely as men to negotiate for higher compensation or job placement during the hiring process for their current job.  Nevertheless, the men in the study (which follows the career paths of over 4000 MBA graduates from around the world) made more money and advanced farther and faster than their women counterparts. The $4600 pay gap that separated men from women in their first jobs out of the gate from business school? It grew to over $31,000 several years down the road – even when women were more likely than men to ask for more.

A lot of explanations are proffered about why these compensation and advancement gaps exist. The Catalyst reports have tested for a lot of those common assumptions and in the process busted some myths. Contrary to conventional wisdom, our high-potential pipeline study found these gaps are not due to lower aspirations, motherhood, part-time status, or industry. The problem isn’t with the women, it’s with organizational and social structures and the gender stereotypes that pervade them.

The Catalyst report found two tactics that made a measurable difference for women’s advancement in the study. The first is making one’s achievements visible. Women who were more proactive self-promoters were more likely to have risen faster and increased their salaries, and were more professionally satisfied.  In other words, it pays to toot your own horn.

Of course, we know that advice is not as simple to follow as it sounds. Self-promotion can be tricky, especially for women who run the risk of triggering the gender tripwire of stereotypes. A couple years ago at the NAWL General Counsel Institute, a law firm partner panelist told the audience about her experience writing up her accomplishments in her partner compensation memo. She was asked, “Don’t you think you should be more modest?”

Nevertheless, it’s important for women to find a style that works for them, and to make their achievements known to their bosses and their colleagues, to seek feedback, and to ask for credit and for promotions when due. It’s not enough to do good work. People have to see you and your accomplishments. Importantly, doing so will help attract a sponsor, which is critical to advancement.

The second tactic that predicted women’s advancement was gaining access to powerful others.  Identifying and networking with influential people within a firm, building a network of contacts with important people and working on high-profile assignments impacted women’s advancement in a way that other strategies – such as blurring work-life boundaries, getting training, and career planning – did not.

This tactic also made a difference for the men in our study. For the most part, however, the study found that similar approaches to career management yielded different outcomes for women and men. Even when women do “all the right things,” they still won’t advance as far or get paid as much as their male peers.  Maybe the issue isn’t that women don’t ask, but that men don’t have to.

To learn more about the latest research on career advancement strategies and hear from women leaders in the business and legal world about what strategies worked for them, join me at the NAWL General Counsel Institute on November 8, 2012 for a panel discussion, The Myth of the Ideal Worker: Does Doing the Right Thing Really Help  Women Get Ahead? For more information – Please Click Here.

© 2012 Catalyst Inc.

Consumer Financial Services Basics – ABA Conference

The National Law Review is pleased to bring you information regarding the upcoming Consumer Financial Services Basics Conference sponsored by the ABA:

When

October 08 – 09, 2012

Where

American University

Washington College of Law

Washington, DC

Program Description

Facing the most comprehensive revision of federal consumer financial services (CFS) law in 75 years, even experienced consumer finance lawyers might feel it is time to get back in the classroom. This live meeting is designed to expose practitioners to key areas of consumer financial services law, whether you need a primer or a refresher.It is time to take a step back and think through some of these complex issues with a faculty that combines decades of practical experience with law school analysis. The classroom approach is used to review the background, assess the current policy factors, step into the shoes of regulators, and develop an approach that can be used to interpret and evaluate the scores of laws and regulations that affect your clients.Program FocusThis program will explain each of the major sources of regulation of consumer financial products in the context of the regulatory techniques and policies that are the common threads in a complex pattern, including:

  • Price regulation and federal preemption of state price limitations
  • Truth in lending and disclosure requirements
  • Marketing, advertising and unfair or deceptive conduct
  • Account servicing and collections
  • Regulating the “fairness” of financial institution conduct
  • Data security, fraud prevention and identity protection
  • Consumer reporting: FCRA & FACT Act
  • Fair lending and fair access to financial services
  • Remedies: regulators and private plaintiffs
  • Regulatory and legislative priorities for 2012 and beyond

Who Should Attend…The learning curve for private practitioners, in-house lawyers and government attorneys to understand the basics and changes to CFS law is very steep. This program is a great way to jump up that curve for:

  • Private practitioners with 1-10 years of experience who focus on CFS products or providers
  • In-house counsel at financial institutions and non-bank lenders
  • Government attorneys, in financial practices regulatory agencies
  • Compliance officers (who may be, but need not be, attorneys)

SEC Issues Risk Alert on Campaign Contributions and Pay-to-Play Prohibitions

The National Law Review recently published an article regarding Campaign Contributions written by Paul S. Maco, Laurence A. Levy, Patrick K. Craine, Joshua C. Zive, and Britt Cass Steckman of Bracewell & Giuliani LLP:

 

At the beginning of the Labor Day holiday and in the heart of the campaign season, the SEC’s Office of Compliance Inspections and Examinations issued a Risk Alert targeting compliance by investment banks underwriting municipal bonds with rules limiting political contributions to campaigns of state and local government officials who select firms to be underwriters, remarketing agents, and financial advisors for municipal securities. The Risk Alert is a reminder of existing rules; no new requirements were announced.

The Risk Alert should be of particular interest to:

  1. Candidates for state or local government office and their campaign staff, and candidates for federal office currently holding state or local government office; and
  2. Municipal finance professionals and their firms.

For Candidates

The Risk Alert serves as a reminder to candidates for state and local government office and candidates for federal office who are current state and local elected officials of federal rules that restrict contributions by potential donors to your campaign if (1) those potential donors are firms or certain of their employees that underwrite, act as remarketing agent, or serve as financial advisors for municipal bond offerings and (2) the state or local office you seek or currently hold involves you in the selection of firms for such work. Penalties on contributors are so severe that when made inadvertently, contributors will usually seek return of the contribution.

Municipal Securities Rulemaking Board (MSRB) rule G-37 generally prohibits firms from serving as underwriters, remarketing agents, or financial advisors for an issuer of municipal securities for two years after making a campaign contribution to an official of the issuer who awards or may influence the award of such assignments unless the contribution is no more than $250 per election cycle and the contributor is entitled to vote for the official (the “de minimus exemption”). In addition, such firms and their covered employees, known as municipal finance professionals, are prohibited from soliciting campaign contributions and providing other services for the campaigns of such officials.

The consequences of violation of rule G-37 are serious. One consequence is known as “the death penalty”: firms that act as an underwriter after a covered employee makes a contribution not subject to the de minimusexemption are typically required in SEC enforcement actions to forfeit the gross revenues received from all underwritings for the issuer in the two-year period following the contribution. If the contribution was made inadvertently, firms that discover, report, and recover the contribution may seek – but are not automatically assured of – relief from the death penalty.

Candidates and their campaign staff may wish to be alert to this regulation and avoid accepting contributions which will later need to be reimbursed.

For Municipal Finance Professionals

The Risk Alert serves as a reminder of MSRB rules in place since 1994 on campaign contributions applicable to brokers, dealers, and municipal securities dealers and their municipal finance employees active in municipal securities markets. The Risk Alert specifically intends to call the attention of municipal firms to compliance concerns of SEC staff observed during their examinations, including:

  • Compliance with the two-year ban following a political contribution by a municipal finance professional beyond the de minimus exception;
  • Potentially deficient record-keeping;
  • Failure to file accurate and complete forms G-37 with the MSRB; and
  • Inadequate supervision.

The Risk Alert also identifies practices that certain firms have taken with respect to avoiding pay-to-play practices, including:

  • Providing training to municipal finance professionals;
  • Required knowledge and compliance self-certification by covered employees;
  • Use of internet and other surveillance techniques;
  • Identification and restriction of employees who may become subject to rule G-37 through promotion;
  • Required preclearance, restriction, or prohibition of political contributions; and
  • Separation of surveillance functions to avoid any possibility of adverse action towards an employee based on political preferences.

© 2012 Bracewell & Giuliani LLP

Class Actions National Institute October 24-25, 2012

The National Law Review is pleased to bring you information about the upcoming ABA Class Actions National Institute:

Attendees of the program will:

  • Gain practical knowledge on how judges view class-action lawsuits
  • Review class-action lawsuits in the Supreme Court
  • Learn trial techniques to sharpen their skills as class-action litigators

Who should attend?

  • Attorneys who litigate class-action lawsuits
  • In-house counsel and litigators interested in learning about the current state of class actions, including recent Supreme Court class-action decisions
  • Lawyers who litigate class-certification motions

When

October 24 – 25, 2012

Where

  • Sax Chicago
  • 333 N Dearborn St
  • Chicago, IL, 60654-4956
  • United States of America