Category: Administrative & Regulatory

At-Home COVID-19 Testing Options and Alternatives

In fulfillment of President Biden’s promise to make at-home COVID tests more available for all of us, two significant action steps have now occurred:

  1. Every U.S. household has access to free at-home COVID-19 tests. As of January 18, 2022, any individual with a residence in the United States may request up to four (4) at-home COVID test kits.  There is no cost to register or for the kits themselves.
  1. At-home COVID-19 testing is available at no cost without a prescription under an employer’s group health plan. On January 10, 2022, the Department of Labor (DOL) released updated guidance and an FAQ that, as of January 15, 2022, now extends an employer’s obligation to cover all types of COVID-19 tests, between those performed or prescribed by a physician or other health care provider,  and for in-home COVID-19 tests provided without a doctor’s order.

Key Points:

All group health plans and insurance carriers must now cover the cost of at-home COVID-19 test kits, passing none of that cost to employees or individuals covered under the plan, and without requiring a medical diagnosis or prescription from a health care provider.

  • The plan or insurer need not provide this coverage to employees not covered under the employer’s plan.
  • For these purposes, the coverage can be provided through an employer’s medical plan, pharmacy benefit plan/PBM, or both. Employers should discuss the options and costs for administering this arrangement under their particular plan with their brokers and consultants or insurance carriers.
  • The guidance allows a plan or insurer to meet this coverage obligation in one of two ways:
    • The plan can work with its insurance carrier or third-party claims administrator (TPA) to create “direct contract” arrangements with retailers (e.g., Walmart, RiteAid, Walgreens, etc.) and other insurance network providers to provide COVID tests to covered individuals at no cost to the individual at the counter; costs are negotiated and paid between the plan/insurer/TPA with the retail service provider directly.
    • Individuals can also purchase COVID tests through any other resource and submit the receipt for reimbursement through the plan or insurer’s established process, either through the insurance carrier, TPA or PBM. The maximum amount to be paid in reimbursement is the lesser of: (a) the actual cost of the COVID test; or (b) $12 per test (note: if the COVID kit comes with two tests, the cost to be reimbursed would be per test or a maximum of $24).  The plan or insurer does not have to reimburse for COVID tests purchased before January 15, 2022.
    • Suppose a plan or issuer is unwilling or unable to satisfy the above criteria in providing the opportunity to receive COVID testing coverage under either of the above criteria. In that case, the plan or issuer must still provide reimbursement of at-home COVID tests without the above cost limitations.
  • The plan or insurer can limit the total number of COVID tests to 8 per person per month (or 4 kits if the kit includes two tests). A separate limit applies for each covered family member (e.g., a family of 4 could receive up to 32 tests per month (or 16 kits, if it includes two tests each).  There is no annual maximum limit.
  • An individual need not provide proof of medical need, but the plan can require the individual to attest that they are purchasing only for personal use (not for resale).
  • Employers are encouraged to communicate to all covered individuals about the alternatives available and processes for seeking reimbursement of purchased tests.
  • The obligations for coverage of at-home COVID tests remain in effect for at least the remainder of the Public Health Emergency period, which has now been extended to at least April 15, 2022.
  • COVID testing and other related costs provided at a health care provider or other health care facility as part of a medical assessment must still be covered 100 percent by the plan or issuer without being subject to the test or cost limits that apply for over-the-counter COVID tests, under previous guidance under the CARES Act, and the First Families Coronavirus Response Act (FFCRA).

Employer sponsors of group health plans are likely to have received at least some information from their TPA, insurance carrier, or other brokers and consultants about the steps to be taken related to the guidance provided under the most recent DOL FAQ.

Jackson Lewis P.C. © 2022

Article By Brian M. Johnston of  Jackson Lewis P.C.

For more articles on at home COVID-19 testing, visit the NLR Coronavirus News section.

A Very Simple Proposal to Tweak the FLSA to Benefit Both Employees and Employers

A number of years ago, I received a kind note around the holidays from my opposing counsel in a wage-hour class action, thanking me and my firm for being their “partners” in addressing employment issues.

Maybe the word he used wasn’t “partners,” but it was something close to it.

At first, I must admit that I thought he was joking.

Then I realized that this attorney, for whom I have great respect, got it.

He got that employers are not looking to violate employment laws, and that the attorneys who represent them are not trying to help their clients violate the laws.

He got that the opposite is true – employers are trying to comply with the laws, and their attorneys are trying to help them do so.  No employer is hoping to get sued.  Not one.  And lawyers advising employers on how to violate the laws will soon be looking for new clients.  Or a malpractice attorney.

The general public may not understand this notion, and, unfortunately, many employees and plaintiffs’ lawyers may not, either.

The desire of employers and their counsel to comply with the law plays out thousands of times every day, to the great benefit not just of employers, but of employees.

All management-side employment lawyers worth their salt have stories about how they worked with their clients to prevent a manager from terminating an employee’s employment, or cutting an employee’s pay, or implementing a problematic policy, by explaining the law and the potential repercussions.  Some lawyers have hundreds of these stories.

“You should give the employee another chance,” is an expression that may as well be on a tape recording, it’s used that often.  “Document the problem, sit down with the employee to explain how they need to do things differently, and give the employee another chance.”  “If you make that change, you’re walking right into a class action that you will have difficulty defending.”

Often – usually – employers will understand and follow their counsel’s advice once distanced from the heat of the moment.

They’re looking to do the right thing, to treat their employees fairly.  And, yes, to comply with the law.

It’s an approach that works in virtually every context except perhaps one – the Fair Labor Standards Act (FLSA).

The FLSA actually works to dissuade employers from working with employees to correct many wage issues.

Why is that?

Because, unlike other employment laws, the FLSA generally doesn’t permit employers and employees to resolve wage disputes, short of the very litigation or agency complaint that neither employers nor employees really want.

The FLSA generally forbids the very amicable resolutions that would benefit both employers and employees.

And perhaps it’s time to change that.

In a perfect workplace, if employees have issues, whatever they might be, they would speak with their managers or with human resources and resolve their disputes amicably.

And, for the most part, the law not only permits them to do so, but encourages them to do so.

If employees believe they have been harassed, they can take their concerns to their employer and let their employer investigate and take corrective action, if appropriate.

If employees believe they have been discriminated against, they can share their concerns with their employer and resolve their disputes.

And if part of the resolution is a payment of some sum that the employer and employee agree to be fair, they can enter into a settlement agreement whereby those claims are resolved.  That is, the employee can accept some agreed-upon sum of money and sign a release.  And the employee can review the settlement agreement with his or her attorney beforehand in deciding whether the terms are fair.  If not, the employee won’t sign it.

But these very same employees who are able to amicably resolve virtually any dispute with their employers generally are not allowed to do so with FLSA claims.

If employees believe they were not paid for all time they worked, they cannot simply speak with their managers or human resources personnel to resolve the issue, get the problem fixed, and move on.  No, generally speaking, the only way they can resolve the issue is to file a lawsuit or a complaint with the Department of Labor (DOL).

If employees believe their overtime pay was miscalculated, the only way they and their employers can resolve the claim is by suing or going to the DOL.

If employees believe that they have been misclassified as exempt, they can’t resolve the issue with their manager or human resources personnel.  No, they have to sue or file a DOL complaint.

And if employers identify an issue – an error on someone’s paycheck, or a concern that an employee might have been misclassified – the best they can do is to correct the issue and pay the employee, then sit back and hope that the employee doesn’t turn around and sue about the very issue the employer wanted to resolve, but couldn’t.

It’s a system that is built to increase litigation, often unnecessarily, at the expense of amicable resolutions of issues that may arise.

There is no good reason that employees can be trusted to resolve other employment disputes without litigation or an agency complaint, but can’t be trusted to do so with regard to wage claims.

None.

There is no good reason why employees can be allowed to amicably resolve a race or sex discrimination concern, for instance, but the same employees can’t be allowed to resolve a wage claim – not even as part of the resolution of the race or sex discrimination concern.

None.

The argument that an employee wouldn’t understand the nuances of the FLSA flies about as far as a turkey.  The FLSA is no more nuanced than Title VII or the Americans with Disabilities Act, and employees are allowed to resolve those claims outside of litigation or an agency complaint.

And don’t forget that employees could always have an attorney review a proposed FLSA settlement before they ever enter into it.  If it wasn’t fair, the attorney would surely tell the employee that and try to negotiate better terms, right?

Ultimately, it’s the employees’ decision.  If they don’t like the terms of a proposed resolution of FLSA claims, they can always file suit or a DOL claim then.

If you assume that employers and employees would like to have the opportunity to try to resolve their FLSA disputes prior to litigation or a DOL claim, then it is time to amend the FLSA to give them to right to do so.

And the blueprint for what legislation could look like is easy to find – it’s right in the Age Discrimination in Employment Act (ADEA).  Or, more specifically, it’s right in the Older Workers Benefits Protection Act (OWBPA) amendments to the ADEA.

For reasons that remain somewhat mystifying, releases of age discrimination claims under the ADEA require specific terms that releases of other types of federal discrimination claims do not.  Among other things, such releases must specifically reference the ADEA, they must advise employees that they have the right to consult with an attorney, they must provide the employee with 21 days to consider the release (or 45 days under some circumstances), and they must provide the employees with 7 days to revoke an agreement after signing.

There is no reason that the FLSA couldn’t be amended to permit private settlements along the same lines – with a requirement that the release specifically reference the FLSA, that it advise employees that they have the right to consult with an attorney (or the DOL), that they have 21 days to consider the release, and that they may revoke the release within 7 days.

Don’t like the settlement proposed by your employer?  Don’t sign it.

Don’t understand it?  Talk with a lawyer or the DOL.

Need time to think about it?  You’ve got plenty of time.

Have second thoughts after signing the agreement?  Revoke it.

If such bells and whistles are sufficient to protect older workers who wish to settle age discrimination claims, they should be sufficient to protect all employees who wish to resolve FLSA claims.

Employees would benefit from a system that would encourage employers to address wage issues – and, not incidentally, by which they might not have to share 30-40% of their settlement with lawyers.

Employers would benefit from a system that would help them address those issues while avoiding litigation – saving on paying attorney’s fees to attorneys like me.

The courts and the DOL wouldn’t be clogged with claims that cry out for resolution.

The only people who wouldn’t benefit from this proposed amendment would be the lawyers.

And if you’re worried about us lawyers, you should call a doctor.

©2022 Epstein Becker & Green, P.C. All rights reserved.
For more articles on employment laws, visit the NLR Labor & Employment section.

SDNY Allows Skechers to Walk Away from Trademark Claims

After Skechers began selling open-back women’s shoes under the name “Commute Time” in August 2018, Easy Spirit, owner of the mark TRAVELTIME for similar shoes, sued Skechers in April 2019 for trademark and trade dress infringement under the Lanham Act and New York law.  In January 2021, the U.S. District Court for the Southern District of New York granted summary judgment on the trade dress claims for Skechers, and the remaining trademark infringement claims—trademark infringement under 15 U.S.C. § 1114(a), false designation of origin under 15 U.S.C. § 1125(a), and common law trademark infringement under New York state law, proceeded to trial.  Following a twelve-day bench trial, the district court dismissed the trademark infringement claims, finding no likelihood of confusion existed between the marks.

As the opinion recounted, to succeed on a claim for trademark infringement under 15 U.S.C. § 1114(a), Easy Spirit needed to prove the validity of its mark (which Skechers did not contest) and a likelihood of confusion between the marks.  Analyzing likelihood of confusion, the court assessed the eight factors used by the Second Circuit:  (1) strength of the prior owner’s mark; (2) similarity between the marks; (3) competitive proximity of the products; (4) likelihood that the prior user will bridge the gap; (5) actual confusion; (6) defendant’s good faith; (7) quality of the defendant’s product; and (8) buyer sophistication.

First, in analyzing the strength of Easy Spirit’s TRAVELTIME mark, the court examined its inherent distinctiveness and acquired distinctiveness in the marketplace.  Regarding inherent distinctiveness, the court found that TRAVELTIME was “modestly” inherently distinctive because it was plainly suggestive.  In other words, the mark required some imagination for a purchaser to “go from ‘travel time’ to the idea of movement, then to what one might need when moving, and finally to the product, an open-back comfort shoe.”

As to acquired distinctiveness, which the court explained referred to the recognition that the mark earned in the marketplace as a designator of Easy Spirit’s goods, the opinion analyzed six factors used by the Second Circuit:  (1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) unsolicited media coverage of the product; (4) sales success; (5) attempts to plagiarize the mark; and (6) length and exclusivity of the mark’s use.

Here, the court noted that Easy Spirit did not provide advertising expenditures or other evidence showing how many consumers its TRAVELTIME-specific advertising reached, as opposed to Easy Spirit advertising generally.  Regarding unsolicited media coverage, the court stated that Easy Spirit presented only one piece of evidence from before 2018, so it was unclear if the mark acquired secondary meaning before Skechers started selling its Commute Time shoe that year.

The sales success factor favored Easy Spirit however, as the court cited evidence that the TRAVELTIME shoe became the number-one-selling shoe in U.S. department stores in 2016 and amassed $26.3 million in sales between July 2017 and March 2019.  The court also determined that length and exclusivity moderately weighed in Easy Spirit’s favor because whole Easy Spirit had sold TRAVELTIME shoes continuously since 2004, other shoe companies routinely used marks containing the words “time” or “travel”—including Easy Spirit for its other products.

Thus, the court concluded that Easy Spirit had not provided strong evidence that TRAVELTIME acquired secondary meaning before Skechers began using the Commute Time mark, and accordingly the strength of the mark factor weighed “only moderately” in favor of a likelihood of confusion.

Second, the court held that the marks were not similar based on their overall impression on consumers.  It found several differences in their appearance, including that:  (1) TRAVELTIME is one word while Commute Time is two; (2) TRAVELTIME generally appears in all capital letters but Commute Time does not; and (3) TRAVELTIME is written on one line yet Commute Time generally appears on separate lines.  The court also found that TRAVELTIME appeared on a minimalist beige box with simple orange lettering alone, while Commute Time appeared on a jewel-toned patterned box with various shapes, accents, and other Skechers marks.  And the opinion noted that “travel” and “commute” neither sounded the same nor were synonymous.

Third, the court found no evidence of actual confusion.  It pointed out that Easy Spirit did not submit any consumer survey showing confusion, and while Easy Spirit did not need to, the absence of a survey was evidence actual confusion could not be shown.  The opinion also emphasized Skechers’ survey showing 0% confusion, which Easy Spirit failed to adequately rebut or discredit.  Specifically, the court rejected Easy Spirit’s concern as to the universe of participants, that the survey showed participants the parties’ websites and not those of third-party retailers, and incentives given to participants.  It held that the survey properly targeted consumers beyond women 55-years-and-older because prospective customers should be counted, any marketplace could be replicated given the parties sold their shows on multiple platforms, and incentives are commonly accepted for surveys.

Fourth, the court examined whether Skechers acted in bad faith or with an intent to deceive consumers about the source of its product.  It determined that evidence showing Skechers based some measurements of its shoe on TRAVELTIME but included several aesthetic and functional differences demonstrated an intent to compete rather to deceive.  The court noted that companies in the shoe industry commonly incorporate features of other products in order to compete.

Fifth, the court determined that the customer sophistication factor also weighed in Skechers’ favor.  As neither party presented direct evidence of consumer sophistication, the court stated it could rely solely on indirect indications of sophistication, such as nature of the products or their price.  The court rejected Easy Spirit’s argument that because its customers were older women they were not sophisticated consumers of women’s shoes, finding it borderline “offensive” and contrary to common sense.  It also found the price points of the shoes sufficiently high to indicate thoughtful purchases.

Finally, while Skechers did not contest that the proximity of the goods factor weighed in favor of a likelihood of confusion, the court independently found this factor weighed in Easy Spirit’s favor because the Commute Time shoe was sold to the same class of purchasers, thorough the same marketing channels, and for approximately the same price as the TRAVELTIME shoe.  It did not assess the remaining two factors—bridging the gap and disparity of goods—because the parties agreed they did not apply.

In closing, the court held that no likelihood of confusion existed given the absence of any direct evidence that customers were actually confused or survey evidence of actual confusion.  Accordingly, it dismissed the federal trademark infringement claim.  And because the federal false designation of origin and common law trademark infringement claims also required a likelihood of confusion, the court dismissed those remaining claims too.

The case is Easy Spirit, LLC v. Skechers U.S.A., Inc., No. 19-cv-3299 (JSR), _ F. Supp. 3d _, 2021 WL 5312647 (S.D.N.Y. Nov. 16, 2021).

© 2022 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
For more articles about trademarks, visit the NLR Intellectual Property Law section.

Friendly Reminder: New Limitations on Non-Competes in Oregon Are Now in Effect

Employers, take note: certain amendments strengthening Oregon’s existing statutory restrictions on non-compete agreements, went into effect on January 1, 2022 – as previewed in our previous blog post.  Coupled with existing limitations in ORS 653.295, the newly-effective amendments mean that a non-compete entered into with an Oregon employee after January 1, 2022 will be “void” ab initio if:

  • The non-compete period extends longer than 12 months;

  • It applies to employees earning less than $100,533.00 in 2021 dollars adjusted for inflation;

  • It was not provided in writing to a new employee at least two weeks before the employee’s first day;

  • The employer did not provide the employee with a copy of the signed non-compete agreement within 30 days following the employee’s termination;

  • The employee is not engaged in administrative, executive, or professional work, performing predominantly intellectual, managerial, or creative tasks; further, the employee must exercise discretion and independent judgment; and be paid on a salary basis;

  • The employee does not have access to either trade secrets or sensitive confidential business or professional information; or

  • The employee is employed as an on-air talent in broadcasting.

Employers of Oregon employees should take steps to ensure they do not run afoul of the above conditions.  If unsure on these points, or about the reasonableness of non-competition restrictions more generally, employers should seek legal assistance.

©2022 Epstein Becker & Green, P.C. All rights reserved.
For more about employer requirements, visit the NLR Labor & Employment section.

7 Tips to Avoid Employer Mandate Assessments and Penalties under the Affordable Care Act

As we discussed in a prior article, it is now more important than ever for employers to ensure they fully and accurately complete IRS Forms 1094-C and 1095-C — forms required to be filed and/or furnished to employees under the Affordable Care Act. A failure to do so can lead to eye-popping proposed employer shared responsibility payment (ESRP) assessments, as well as information reporting penalties.

To avoid such costly mistakes, employers should keep the following seven tips in mind when completing or reviewing Forms 1094-C and 1095-C:

Form 1094-C

  1. Be very sure that the “Yes” box is checked on Line 23, column (a) to state that minimum essential coverage was offered for all 12 months.

This is far and away the single most important data entry on both forms. The box should always be checked for an employer who provides minimum essential health coverage to all full-time employees in accordance with the Affordable Care Act (ACA). Failing to check this box may result in an automatic ESRP assessment of up to $2,700 per full-time employee for 2021. The amount is adjusted annually.

  1. Know when to check the box on Line 22 for “Qualifying Offer Method.”

If an employer is eligible to use the Qualifying Offer Method, it should check this box only if it is reporting offers of coverage on Forms 1095-C using code 1A.

Form 1095-C

  1. Conduct a coding audit and know where to prioritize.

Each of the below tips and other points of review for Forms 1095-C should be addressed prior to the furnishing and filing of the forms. Only by reviewing and understanding the codes can an employer have confidence that it will avoid an ESRP assessment or accuracy-related information return penalties. Of course, depending on the number of employees, reviewing the coding for all employees may be impracticable. Thus, employers should prioritize the following situations for review:

  • Forms for employees who were hired, terminated, or who experienced a change in status during the year;
  • Forms where code 1H is reported; and
  • Forms for employees who are more likely to be eligible for the premium tax credit (e.g., employees earning less than $51,040 in 2021).
  1. Review for “red flag” coding combinations on lines 14 and 16.

The following code combinations are triggers for an ESRP assessment and should never be used by an employer who provides minimum essential health coverage to all full-time employees: 1H/__, 1H/2C, 1H/2F, 1H/2G, and 1H/2H. All of these code combinations report that no offer of coverage was provided but fail to state a valid reason for why an ESRP should not apply. Where no offer of coverage is made, only one of the following code combinations should be used: 1H/2A, 1H/2B or 1H/2D.

  1. Review for incomplete coding on lines 14 and 16.

For employers who are not using the Qualifying Offer Method, both code series (series 1 and series 2) on lines 14 and 16 should always be completed for all months on the Forms 1095-C of all full-time employees. However, if an employer is using the Qualifying Offer Method, then it will be acceptable in many instances to use only code 1A and to leave the series 2 code blank.

  1. Make sure the safe harbor code reported on line 16 actually applies.

In more recent years, the IRS has begun scrutinizing the series 2 safe harbor codes reported by employers on line 16. For example, the IRS will automatically reject an employer’s use of code 2G, the federal poverty line safe harbor, if the monthly employee required contribution reported on the Form 1095-C exceeds $104.53 for a month in 2021.

  1. Ensure the waiting period is coded correctly on lines 14 and 16.

If an employee is in a waiting period on any day of a month, the month should be coded as 1H/2D to signify that the employee is in a limited non-assessment period. This code can only be used for up to four consecutive months for each period of employment. If an employee was terminated and rehired in the same year, the employer should determine whether the waiting period and code 1H/2D can be applied again under the rules for determining periods of employment.

© 2022 Bradley Arant Boult Cummings LLP

SCOTUS Cert Recap: Civil Procedure, Bankruptcy, And Worker’s Comp

This week, the U.S. Supreme Court granted three of the cert. petitions it considered at its first conference of the new year.

The Court agreed to hear issues involving: 1) the grounds for relief from a final judgment under Federal Rule of Civil Procedure 60(b)(1), 2) the limits on Congress’ authority to apply different bankruptcy rules to different parts of the country, and 3) the scope of states’ authority to apply their workers’ compensation laws to federal facilities.

Such issues are not the most high-profile the Court will address this term, as underscored by the absence of cert-stage amicus briefs in all three of the cases (though this is less uncommon than one might think; by our calculations, about 40 percent of the cert. petitions granted for plenary review last term lacked cert-stage amicus briefs). For governmental entities, bankruptcy practitioners, and federal court civil litigators, however, the cases are worth noting and following.

Rule 60(b) Motions for Relief from Final Judgment

In Kemp v. United States, the Court finally agreed to resolve what the cert. petition characterizes as a 50-year circuit split on whether the “mistake” prong of Rule 60(b)(1) authorizes relief based on a district court’s legal error. Rule 60(b) sets out six categories of reasons why a district court may relieve a party from a final judgment, including “mistake, inadvertence, surprise, or excusable neglect” under 60(b)(1) and “any other reason that justifies relief” under 60(b)(6). The lower courts agree that 60(b)(1) and 60(b)(6) authorize relief for at least some legal errors, but disagree about which of those provisions does so.

And that seemingly picayune distinction can matter. The Federal Rules require all 60(b) motions to be made “within a reasonable time” but set a hard one-year time limit for relief sought on 60(b)(1) grounds. This means that if Rule 60(b)(1) does not encompass legal errors, motions alleging legal errors would fall under Rule 60(b)(6) and would not need to meet the bright-line one-year rule – though such motions would then be subject to the Supreme Court’s additional requirement that 60(b)(6) motions establish “extraordinary circumstances” justifying relief. Accordingly, the question in this case can mean the difference between a timely and untimely 60(b) motion, and civil litigators should be on the lookout for the Court’s answer.

Congress’ Authority to Adopt “Uniform” Bankruptcy Rules

The Court will also take up Siegel v. Fitzgerald, where it will consider the meaning of the Constitution’s Bankruptcy Clause, which authorizes Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The petitioner in this case contends that Congress violated this “uniformity” requirement by dividing the nation’s bankruptcy courts into two slightly different categories. Most operate under the U.S. Trustee program, while six (all in North Carolina and Alabama) operate under the Bankruptcy Administrator program.

In 2017, Congress increased the quarterly fees paid by debtors in large Chapter 11 bankruptcies from $30,000 to $250,000, and while this increase was immediately applicable to all pending and future cases in Trustee districts, it was imposed in Administrator districts nine months later, and then only to future cases. In Siegel the Court will decide whether this difference renders the 2017 statute unconstitutionally “non-uniform” (and, if the Court concludes it is unconstitutional, there will be a further difficult question to tackle concerning how such a defect should be remedied). Notably, even the respondent (who is represented by the U.S. Solicitor General) urged the Court to take this case, observing that though Congress eliminated the difference in 2020, the question presented in this case could affect the status of approximately $324 million in quarterly fees imposed nationwide under the 2017 statute.

In light of such figures, bankruptcy professionals across the country – especially those with cases subject to the 2017 statute – will likely have a strong interest in what the Court will say.

Limits on States’ Application of Workers’ Compensation Laws to Federal Facilities

In United States v. Washington, the Court agreed to hear the federal government’s challenge to a Washington workers’ compensation law that applies exclusively to contractors at a federally owned nuclear-waste cleanup site. Under longstanding principles of intergovernmental immunity, state regulation of federal facilities is generally permissible only where such regulation is clearly authorized by Congress. And the federal government contends that the relevant statute here – which allows states to regulate workers’ compensation at federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State” – does not permit states to single out federal facilities for unique treatment. The state of Washington, meanwhile, counters that states routinely apply different rules to different employers, and it argues that the federal statute simply authorizes such context-sensitive regulation at private and federal facilities alike.

The dispute accordingly consists of competing interpretations of a narrow federal statute (40 U.S.C. § 3172(a)), and it is therefore difficult to see how the case could have much broader significance outside the workers’ compensation context. Contractors working at federal facilities, however, may be interested to see whether the Supreme Court opens the door for future challenges to state workers’ compensation laws.

© 2022 BARNES & THORNBURG LLP

Article By Kian Hudson of Barnes & Thornburg LLP

For more articles on SCOTUS, visit the NLR Litigation / Trial Practice section.

Let’s Eat Grandma = Let’s Eat, Grandma?

To the possible dismay of grammar purists, a federal court recently found that an insurance policy provision meant the same thing whether or not it included a comma before a key phrase. After poking fun at insurance policies (“long been the butt of jokes”), the court recognized that they can “provide fodder for scores of attorneys, grammarians, and logophiles” like when “the placement (or omission) of one comma can make the difference.” This case is an example.

The policy covered Constantin for claims related to “services directed toward expertise in banking finance, accounting, risk and systems analysis, design and implementation, asset recovery and strategy planning for financial institutions.” Constantin sought coverage for an underlying litigation that involved “services directed toward expertise in . . . accounting.” But that litigation did not involve services “for financial institutions.”

So the question was whether “for financial institutions” applied just to the service immediately preceding it or to all services identified in the provision, including accounting services. The court found that it modified the entire series, explaining that “while commas at the end of a series can avoid ambiguity, the use of such commas is discretionary.”

Bottom line: While a comma can save grandma’s life, it couldn’t save coverage here.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Article By Patrick M. McDermott and Casey L. Coffey of Hunton Andrews Kurth

For more articles on insurance, visit the NLR Insurance Reinsurance & Surety section.

How Does SEO Help Law Firms? 10 Benefits

How Does SEO Help Law Firms?

Search Engine Optimization (SEO) is one of the most effective marketing strategies for law firms. Think about it: What better way to reach potential clients than in Google?

After all, people use Google to search for lawyers and legal service providers in their area – more than any other platform. SEO empowers law firms to rank high in the search results and attract clients who are already looking for services like theirs.

But SEO doesn’t just help law firms attract new clients. There are many benefits to adopting a law firm SEO strategy.

1. Organic Traffic

SEO is first and foremost focused on improving a website’s Google rankings and driving organic traffic. Most often, the goal is to rank high, consistently, in Search and earn organic visitors for the long term.

Lawyers can optimize their website for the search terms (“keywords”) people are using to search for their services. For example, if you are a family lawyer in Denver, you can attempt to rank for “denver family lawyer,” “family lawyer in denver,” “family law attorney denver” and the like.

Organic (unpaid) marketing is great because it doesn’t require a hefty ad spend in order to yield results. You can adopt your own SEO strategies to rank your website or choose to hire an SEO professional to aid the process.

2. Improved User Experience

Believe it or not, SEO is not just about pleasing the Google gods. In actuality, your goal should be to provide the best website experience, content, and information to your prospective visitors. Google’s algorithm serves to rank content that best matches what users are searching for.

SEO necessarily improves user experience (UX) because UX is included in Google’s known ranking factors. The speed, interactivity, and accessibility of your website are all important in terms of pleasing visitors and letting Google know your website is optimized.

A great UX keeps users on your website for longer and encourages them to “opt in” (contact you) rather than going to your competitors.

3. Faster Website Speed

Google assesses a website’s Core Web Vitals in order to determine that a website is fast and that its content is easily rendered to users. In other words, it wants to ensure that when users land on your site, it doesn’t take decades for your content to load.

Slow website speed can be a huge deterrent to potential clients. If your website takes too long, they are likely to go elsewhere. Also, slow website speed often means you have “heavy” images and code on your site, which can essentially glitch out or fail to load when users interact with them.

An effective SEO strategy works to improve your website’s Core Web Vitals across the board so you’re sure to provide a fast, user-friendly website experience to your visitors.

4. Better Content Marketing

The success of your SEO is largely driven by content. The content on your web pages and on your blog posts work to attract the right kinds of users to your site, improve your site’s authority, and so much more.

When you care about SEO, you care about your content, and in turn, create better content for users and for search engines. Better content not only ranks higher in Search, but it is more readily shared by users. Plus, your written content is often what ultimately convinces people to hire you.

5. Earned Links and Authority

Backlinks (links from other websites) are essentially votes of confidence from outside sites that your website is informative, factual, and valuable to users. Every SEO strategy aims to earn these authority-boosting links to show Google your website is legit.

Earned authority can improve your website’s appearance in search. At the same time, links from other websites can drive additional traffic to your website. Blogging, content marketing, and outreach are just a few ways law firms can earn backlinks for SEO.

6. Referral Traffic

Referral traffic is traffic that comes in via outside links or from other websites. SEO can help drive referral traffic to your site, because other sites begin to notice your content and want to link to it.

At the same time, most law firms adopt a localized SEO strategy that involves submitting their business information to local directories. These directories can then send more visitors (and leads) to your website.

Also, publishing expert-level content can grab the attention of other blogs and publications, which may then choose to feature you. Then, you can get this referral traffic via interviews, podcasts, and guest posts.

7. More Phone Calls

Law firm SEO often requires a localized strategy in order to target users in a specific service area. To do this, law firms can produce geo-specific content on their websites, submit to local directories, and even create a Google My Business listing.

Local SEO helps law firms get noticed in local search. With local listings, law firms can share their business contact information to drive more phone calls and leads.

In short, visitors don’t even need to visit your website if they are able to find your phone number directly from Google!

8. Improved Client Intake

Website optimization makes it far easier to collect lead information and file it away for better client intake. By including contact forms and contact information on your website, you can generate more digital leads and save this information to your client management system.

If you are strictly relying on phone calls, you’re likely missing out on a ton of potential leads. Contact forms, chat bots, and opt-ins make it easier than ever to gather lead information in real-time. You can even automate text messaging or email follow-up to reach potential clients faster.

9. Local and Foot Traffic

Local SEO also makes it easier for potential clients to find your physical office. You’re able to post your address and other business information so people can visit you in person, without ever having to go to your website.

Localization also sends geo-specific “cues” to Google telling it where your business exists and the areas it serves. If you have this information, it makes it more likely you will appear in the right local search results for the right audience. This is especially true if you work in a competitive market, but your competitors have not implemented SEO.

10. Reviews and Ratings

Reviews and SEO present a “chicken and the egg” situation; great reviews influence SEO, and SEO helps law firms earn reviews. There’s no way to go wrong!

Positive client reviews indicate to Google (and users) that your law firm is trustworthy, real (important!), and highly revered. SEO, in turn, encourages law firms to reach out and generate more positive reviews so they can improve their rankings.

Think those 5-star ratings don’t matter for Search? Think again! Not only do potential clients want to see those shining reviews, but Google values your business’s reputation as well. So don’t forget about reviews when it comes to your SEO.

SEO helps put your law firm on the map

SEO helps law firms beyond just traffic and lead generation; it provides a well-rounded marketing strategy that improves your business’s overall digital presence. And a better digital presence means more opportunities to attract new legal clients!

Every law firm should adopt SEO in order to improve user experience, website speed, content, and local visibility. This is one of the best ways to drive sustainable, organic traffic and put your website on the (Google) map.

Copyright 2022 © Hennessey Digital

Article By Jason Hennessey of Hennessey Digital

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

What Should Your COVID-19 Vaccination/Test Policy Contain?

Every employer who employs at least 100 employees is anxiously awaiting the decision from the United States Supreme Court on OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS). One thing that cannot be avoided is having a policy in place/ready to go given that the January 10, 2022 enforcement date from OSHA is here.

Specifically, the ETS requires employers to have a written policy on COVID-19 vaccinations. Employers are able to decide whether to have a policy that mandates vaccinations for employees. Such a policy must address the following:

  1. The requirements to be vaccinated against COVID-19,
  2. Exclusions for medical reasons/accommodations based on disabilities and/or religious beliefs,
  3. Information required to be submitted regarding the employee’s vaccination status and how to provide the information to the employer,
  4. Paid time for vaccination purposes (up to four hours of leave for each dose that is not deducted from the employee’s leave bank) and sick leave for the vaccine’s side effects of up to 2 days (which can be deducted from the employee’s leave bank, if leave is available),
  5. Obligations to notify the employer of a positive test result and removal COVID-19 positive employees from the workplace, and
  6. Discipline for failure to comply with the policy.

For employers who choose not to mandate vaccines, they still have to have a policy that provides for the information above but allows employees to choose to submit to weekly COVID-19 testing and wear a face covering. Notably, of course, the weekly testing obligation for those who are not vaccinated is not in effect until February 9, 2022. However, if the ETS survives Supreme Court scrutiny (oral arguments were held last Friday, January 7, 2021), employees who report to the workplace weekly must submit to testing once every 7 days or within 7 days of reporting to the workplace if they do not work in person weekly.

The policy should inform employees of the testing obligation and that employees cannot both self-administer and self-read a test unless at least one step is observed by the employer or an authorized telehealth proctor.

With no guarantee as to how and when the Supreme Court will rule and given these enforcement dates, it is past time for employers to be developing their policies, collecting vaccination information, and informing employees who are not fully vaccinated, that they will be required to wear face coverings (and that weekly testing will begin in February).

© 2022 Foley & Lardner LLP

Article By Carrie Hoffman of Foley & Lardner LLP

For more articles on vaccination, visit the NLR Coronavirus News section.

COVID-19: Cameras in The Courtroom: Public Access to Appellate Proceedings Post-COVID-19

INTRODUCTION

While federal and state appellate courts have historically been cautious about allowing cameras in the courtroom, the COVID-19 pandemic has pushed courts toward live audiovisual broadcasting to preserve public access to proceedings. Appellate courts’ new practices for virtual arguments and live audiovisual broadcasting1 present expanded opportunities for client engagement in the appellate process.

HISTORY OF PUBLIC ACCESS TO APPELLATE PROCEEDINGS

The founders did not countenance secret justice, believing that the operations of the courts were “matters of utmost public concern.”2

In the early years of the federal judiciary, Supreme Court justices lived this value when they rode circuit—traveling the country and hearing appeals in different courts. This allowed the public to view courtroom proceedings, showing the ways in which the new government, and its appellate judges, could serve their needs.3 Since circuit riding ended, however, both federal and state judiciaries have lagged in ensuring public access to court proceedings.

Only in 1980 did the Supreme Court first recognize a constitutional right to courtroom access. In Richmond Newspapers, Inc. v. Virginia,4  a criminal defendant on trial for murder asked that the courtroom doors be closed to the public, and the judge granted that request.5 A local newspaper sued, raising the issue of whether the public had a right to access the trial court’s proceedings.6 The Supreme Court said yes: The press and the public have a First Amendment right to access criminal trials.7 

The public may have the right to attend criminal trials, but the Fourth Circuit is the only federal court to hold that the public has a constitutional right to attend appellate court proceedings.8 The Ninth Circuit and Seventh Circuit, the only two other federal courts to address the issue, stopped short of finding a constitutional right, instead concluding that there is a presumption of public access to appellate proceedings.9 Among the states, about half have general and presumptive “open court” constitutional provisions or statutes.10 Only six states have specifically addressed the issue of public access to appellate proceedings — Connecticut, Maine, Missouri, New Mexico, and Rhode Island each have rules of appellate procedure that call for public access to appellate court proceedings.11 The Florida Supreme Court recognizes a “presumption of openness [that] continues through the appellate review process.”12 The Nevada Supreme Court has stated that it agrees with other courts’ recognition of a public policy towards public access to appellate proceedings.13

Even among appellate courts that recognize or practice public access, however, there has been disagreement as to whether that access should include live audiovisual broadcasting.

APPELLATE COURTS’ CONCERNS ABOUT CAMERAS

Until recently, many, if not most, litigators, judges, and scholars opposed allowing cameras in the courtroom.14 They worried that lawyers and judges would grandstand in the presence of cameras, becoming more dramatic, argumentative, or long-winded knowing that their image was being broadcast on television.15 Other lawyers and judges might feel self-conscious and limit their arguments or their questions.16 Justice Kennedy expressed concern that allowing audiovisual broadcasting in the Supreme Court would encourage lawyers and justices to engage in sound bites rather than make legal arguments.17

Another concern has been that cameras would create a “circus” atmosphere and undermine the seriousness of or politicize the matter before the court.18 The American Bar Association in 1937 drafted a model rule for state bar associations that admonishes judges:

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.19

This rule—or, more accurately, ban—was adopted by all federal jurisdictions and all but three states.20

Incremental change began in the 1980s. After demonstrations urging the Supreme Court to permit cameras in the courtroom and a letter from C-SPAN offering to help make that a reality, Chief Justice Rehnquist formed an ad hoc committee in 1988 to study the issue.21 From 1990 to the mid-2010s, federal circuit and state supreme courts began to explore the idea of cameras in the courtroom. A pilot program began in 1991 in which the Second and Ninth Circuits televised appellate arguments.22 While the program did not result in the Judicial Conference mandating cameras in all courtrooms, the Ninth Circuit was permitted to continue using cameras.23 State supreme courts followed similar test-and-see approaches. The Pennsylvania Supreme Court, for example, spent six months testing audiovisual broadcasting before formally approving oral arguments to be broadcast live on the Pennsylvania Cable Network.24

Nonetheless, many courts remained cautious about allowing cameras in the courtroom. For example, the Alabama Canons of Judicial Ethics prohibit live audiovisual broadcasting of proceedings unless authorized by the presiding judge.25 Such authorization requires obtaining advance consent from the attorneys who would be recorded and establishing a plan to ensure that the live broadcasting will not detract from the “dignity of the court proceedings.”26 The Fourth Circuit, despite having expressly recognized the public’s right to access appellate proceedings, refused to permit cameras in its courtrooms, instead opting to broadcast only audio of oral arguments.27

Such hesitancy has largely evaporated during the COVID-19 pandemic.

THE RISE OF LIVE BROADCAST VIRTUAL ORAL ARGUMENTS DURING THE PANDEMIC

The COVID-19 pandemic pushed judicial proceedings, including appellate proceedings, onto virtual platforms. This encouraged appellate courts to consider their commitments to open access and adjust accordingly. Federal courts, including the Supreme Court, instituted live audio broadcasting.28State supreme courts took this opportunity to bring cameras into the courtroom.

Now, nearly two years into the COVID-19 pandemic, 38 out of the 50 state supreme courts are offering live audiovisual broadcasting of oral arguments:

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oregon

Pennsylvania

South Carolina

Tennessee

Texas

Washington

West Virginia

Of the states that have adopted a live audiovisual broadcasting system in response to the COVID-19 pandemic’s impact on court access, public engagement has greatly increased. For example, hundreds of viewers logged on to the Hawaii Supreme Court’s first-ever live audiovisual broadcast oral argument regarding a water rights case.29 Will a return to in-person arguments prompt retrenchment, or is the genie now out of the bottle? We cannot know for sure, but fear of the unknown and dark predictions of grandstanding have lost much of their power in the debate over cameras in the appellate courtroom.

HOW PUBLICLY ACCESSIBLE, VIRTUAL ORAL ARGUMENTS HELP CLIENTS

Live audiovisual access to appellate proceedings promotes public access and transparency. No audience has a bigger stake in these proceedings than the clients that are a party to them. Here are just a few ways they benefit from audiovisual access:

  • Attorneys can share recordings of or links to live audiovisual broadcasts with clients that are new to appeals, so they can learn what to expect of the proceedings.
  • Clients no longer have to travel to watch oral argument, saving them significant money and time.
  • Clients can view the work of counsel they are interested in hiring, the approach of opposing counsel, and the ways in which appellate judges and justices engage with attorneys, all of which audio recordings and written transcripts only imperfectly reveal.

Clients should, therefore, welcome this development and encourage its continuation.

1 This client alert uses the term “live audiovisual broadcasting” to describe both live television broadcasts and livestreaming of video as well as audio content via the Internet.

2 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535 (1978); see also JOHN ADAMS, A DISSERTATION ON THE CANON AND THE FEUDAL LAW, NO. 3 (1765), https://founders.archives.gov/documents/Adams/06-01-02-0052-0006 (last accessed Jan. 3, 2022) (“[L]iberty must at all hazards be supported. . . . And liberty cannot be preserved without a general knowledge among the people, who have a right from the frame of their nature, to knowledge . . . of the characters and conduct of their rulers. Rulers are no more than attorneys, agents and trustees for the people; and if the cause, the interest and trust is insidiously betray[ed], or wantonly trifled away, the people have a right to revoke the authority, that they themselves have deputed, and to constitute abler and better agents, attorneys and trustees. And the preservation of the means of knowledge, among the lowest ranks, is of more importance to the public, than all the property of all the rich men in the country.”).

3 David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1716–17 (2007).

4 448 U.S. 555, 100 S. Ct. 2814 (1980).

5 Id. at 559–60.

6 Id. at 562–63.

7 Id. at 580.

8 United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[T]he First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”).

9 United States v. Sedaghaty, 728 F.3d 885, 892 n.2 (9th Cir. 2013) (recognizing a “strong public policy in favor of public access to judicial proceedings” to explain why it heard nearly all of the issues on appeal in open court); In re Krynicki, 983 F.2d 74, 75–76 (7th Cir. 1992) (“Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”).

10 ALA. CONST. ART. I, § 13; COLO. CONST. ART. II, § 6; CONN. CONST. ART. I, § 10; DEL. CONST. ART. I, § 9; FLA. CONST. ART. I, § 21; IDAHO CONST. ART. I, § 18; IND. CONST. ART. I, § 12; KY. CONST. § 14; LA. CONST. ART. 1 § 22; MISS. CONST. ART. III, § 24; MONT. CONST. ART. II, § 16; NEB. CONST. ART. I, § 13; N.C. CONST. ART. I, § 18; N.D. CONST. ART. I, § 9; OHIO CONST. ART. I, § 16; OKLA. CONST. ART. II, § 6; OR. CONST. ART. I, § 10; PA. CONST. ART. I, § 11; S.D. CONST. ART. VI, § 20; TENN. CONST. ART. I, § 17; TEX. CONST. ART. I, § 13; UTAH CONST. ART. I, § 11; WA. CONST. ART. I, § 10; W.VA. CONST. ART. III, § 17; WYO. CONST. ART. I, § 8; IOWA CODE § 602.1601 (2018).

11Conn. R. App. P. § 70-9; M.R. App. P. 12B(e); Miss. Sup. Ct. Op. R. 20.02(c); N.M. R. App. P. 12-322; R.I. Sup. Ct. R. 22(b).

12Barron v. Fla. Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988).

13Whitehead v. Comm’n on Jud. Discipline, 111 Nev. 70, 119–21 (Nev. 1995) (citing In re Krynicki, 983 F.2d at 75, and Barron, 531 So. 2d at 118,, in justifying its decision to refuse to seal its review of charges of judicial misconduct).

14 Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 ARIZ. ST. L.J. 1489, 1514–17 (2012).

15 Id. at 1514.

16 Id. at 1515.

17 Id. at 1514–15.

18 Id. at 1517.

19 ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1937); see also Richard B. Kielbowicz, The Story behind the Adoption of the Ban on Courtroom Cameras, 63 JUDICATURE 14, 14 (1979).

20 Kielbowicz, 63 JUDICATURE at 14.

21 Lysette Romero Córdova, Will SCOTUS Continue to Livestream Oral Arguments and are Cameras Next? Let’s Hope So., AM. BAR ASS’N (Aug. 24, 2021), https://www.americanbar.org/groups/judicial/publications/appellate_issue….

22 History of Cameras in Courts, U.S. Cts., https://www.uscourts.gov/about-federal-courts/judicial-administration/ca… (last accessed Jan. 3, 2022).

23 Id.

24 Amy Worden, Pennsylvania Supreme Court to Allow Cable TV Cameras, PHILA. INQUIRER (Aug. 15, 2011), https://www.inquirer.com/philly/news/breaking/20110815_Pa__Supreme_Court….

25 Ala. Canons Jud. Ethics 3.A(7); 3.A(7B), https://judicial.alabama.gov/docs/library/rules/can3.pdf (last accessed Jan. 3, 2022).

26 Id.

27 Electronic Device Policy, U.S. Ct. of Appeals for the Fourth Cir., https://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic… (last accessed Jan. 3, 2022).

28 U.S. Sup. Ct. Audio Broad., https://www.supremecourt.gov/oral_arguments/live.aspx (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the First Cir. Audio Broad., https://www.youtube.com/channel/UCiq_Kg0zEPrjMFK_s-KP5_g (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Second Cir. Audio Broad., https://ww2.ca2.uscourts.gov/court.html (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Third Cir. Audio Broad., https://www.youtube.com/channel/UCLSXp4JMYiFc7BHD_ln3d-w (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fourth Cir. Audio Broad., https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fifth Cir. Audio Broad., https://www.ca5.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast links posted weekly); U.S. Ct. of Appeals for the Sixth Cir. Audio Broad., https://www.ca6.uscourts.gov/live-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Seventh Cir. Audio Broad., https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eighth Cir. Audio Broad., https://www.ca8.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast public access telephone numbers posted weekly); U.S. Ct. of Appeals for the Tenth Cir. Audio Broad., https://www.youtube.com/c/theuscourtofappealsforthe10thcircuit (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eleventh Cir. Audio Broad., https://www.ca11.uscourts.gov/live-streaming-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Dist. of Columbia Cir. Audio Broad., https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Calenda… (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fed. Cir. Audio Broad., https://www.youtube.com/channel/UC78NfBf28AQe3x7-SbbMC2A (last accessed Jan. 3, 2022). The Ninth Circuit is the only federal appellate court to date to offer audiovisual broadcasting. U.S. Ct. of Appeals for the Ninth Cir. Audiovisual Broad., https://www.youtube.com/c/9thCircuit (last accessed Jan. 3, 2022).

29 Madison Adler & Allie Reed, All U.S. Appeals Courts Embrace Argument Streaming Due to Covid, BLOOMBERG (Aug. 4, 2020), https://news.bloomberglaw.com/pharma-and-life-sciences/all-u-s-appeals-c….

Copyright 2022 K & L Gates

Article By Robert B. Mitchell and Monica A. Romero of K&L Gates

For more articles on COVID-19 in the courtroom, visit the NLR Coronavirus News section.