Category: Administrative & Regulatory

Intellectual Property Consolidation in the Agriculture Industry

Ever since agencies around the world such as the USPTO, USDA, and Union for the Protection of New Varieties of Plants (UPOV) have started recognizing and enforcing intellectual property rights relating to plants, there has been a slow yet massive consolidation in global seed markets.  This article discusses a brief history of how intellectual property rights and lax antitrust enforcement in the seed industry created one of the largest industry consolidations and how the current Administration seems to be taking steps in the right direction.

Intellectual Property in the Agriculture Industry

In 1930, the United States began granting plant patents and the USPTO issued the first plant patent in 1931 for a rose.  The UPOV is an international organization that was founded in 1961 to acknowledge and make available exclusive property rights for breeders of new plant varieties in all member states to the UPOV Convention. The U.S. Plant Variety Protection Act (PVPA) was enacted by Congress in 1970 to encourage the development of new varieties and to make them available to the public.  The Plant Variety Protection Act established in the Department of Agriculture an office to be known as the Plant Variety Protection Office.  These regulations are all very important for the protection and continued innovation of certain varieties of crops and plants.  However, when genetically modified seeds were introduced in 1996, seed companies began to take advantage of these protections and began to invest heavily in amassing as many seed-related IP rights as they could.  As these companies have merged and acquired smaller businesses, they remove competition from the industry, harming farmers, families, and consumers.

There are many ways that companies protect intellectual property in the agricultural industry.  For example, companies file for utility patents to protect a wide variety of plant-related inventions, such as breeding methods, plant-based chemicals, plant parts, and plant products. Plant patents are unique to the United States and provide protection to any distinct and new variety of plant that has been asexually reproduced, other than a tuber-propagated plant or a plant found in an uncultivated state.  Plant Variety Protection certificates, which are similar to plant patents, provide certain exclusive rights to breeders of any new, distinct, uniform, and stable sexually or asexually reproduced or tuber-propagated plant varieties.  Other rights, known as Breeders’ Rights, exist in other countries outside the United States and are very similar to the Plant Variety Protection regulations.  These protections generally last for 20 years from the date of filing and, according to the World Intellectual Property Organization, the patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected.

The Key Players in the Agriculture Industry

Monsanto was a multinational agricultural biotechnology corporation founded in 1901 and based in the United States.  In 1970, Monsanto scientist John Franz discovered that glyphosate was an herbicide and quickly patented it as such.  In 1974, Monsanto brought the patented glyphosate herbicide to the market using the tradename “Roundup.”  In 1996, Monsanto created the first genetically engineered (GE), glyphosate-resistant crop, causing Roundup-resistant soybeans to be planted commercially throughout the United States.  By 1998, glyphosate-resistant corn was available on the market, and Monsanto became the largest supplier of these new GE, “Roundup-Ready” seeds.  This was such a breakthrough in the agriculture industry that in 2003, Roundup-Ready seeds accounted for about 90% of the genetically modified seeds planted around the globe.

As with many industries, the agriculture industry has those companies that are at the top and those that are not.  The agriculture industry’s “Big Six” companies—Monsanto, DuPont, Syngenta, Dow, Bayer, and BASF—turned into the “Big Four”—ChemChina, Corteva, Bayer, and BASF— after a series of mergers and acquisitions that took place in the last decade with very little oversight from some of the antitrust authorities in the United States and around the world.  As a result of these mergers, the “Big Four” companies now control around 60% of the proprietary seed in the world market.

The Consolidation of the Seed Industry

Dr. Phil Howard from Michigan State University discussed the tremendous consolidation of the commercial seed industry in one of his first publications, 2009’s Visualizing Consolidation in the Global Seed Industry: 1996-2008.  Dr. Howard describes how the hybrid-seed corn industry of 1930, the enforcement of patent-like protections, and especially the commercialization of fully patent-protected transgenic, genetically engineered seeds in the mid-late 1990s triggered a wave of consolidation in the agricultural industry.  To make matters worse, when these companies consolidated and amassed massive intellectual property portfolios, it was not uncommon for seed rights to be bundled with other inputs to protect profits in other, agrochemical divisions.  For example, as Dr. Howard details in Visualizing Consolidation, in order to use Monsanto’s herbicide-tolerant transgenic seed, farmers are required to also use Monsanto’s proprietary glyphosate herbicide, rather than a generic herbicide.  Essentially, if you were buying Roundup-Ready seed, you were buying Roundup herbicide, and if you were using Roundup herbicide, it was probably a good idea to buy Roundup-Ready seed.  This type of competitive business practice is one that eventually creates a multitude of problems for smaller, independent businesses, breeders, and farmers.

Antitrust and Anti-Competition in America

Antitrust laws are not a new concept in American society.  Antitrust laws are statutes and regulations that are designed to promote the overall competition in the market by promoting free, open, and competitive markets.  Congress passed the first antitrust law in 1890 when it wrote the Sherman Act, which made it illegal for companies to enter into agreements to compete with one another, resulting in price fixing and monopoly power.  Several years later, in 1914, Congress passed the Clayton Act and Federal Trade Commission Act to protect American consumers by giving the Federal Trade Commission (FTC) and the Department of Justice (DOJ) the authority to oversee and review mergers and acquisitions that are likely to stifle competition.  Under the Hart-Scott-Rodino Act, the FTC and DOJ review most of the proposed transactions that affect commerce in the United States and either agency can take legal action to block deals that it believes would “substantially lessen competition.”

While these laws are all beneficial in theory, their implementation in the agricultural industry has been lacking to say the least.  According to a study in 2018, Bayer alone is estimated to control 35% of corn seed, 28% of soybean seed, and 70% of cottonseed in the global market!  Even more alarming may be the USDA’s 2014 report citing concerns that glyphosate-resistant crops have become ubiquitous with American agriculture with 93% of soybeans, 85% of corn, and 82% of cotton planted being genetically modified to be glyphosate-resistant.  The herbicides that are used to combat the weeds surrounding the crops, in many cases, are supplied by the same company that provides the seeds.

Promoting Competition in the Agriculture Industry

It has been almost a century since the first antitrust laws were enacted, and yet the problem of corporate consolidations remains in many industries across America.  On July 9, 2021, the Biden Administration signed an executive order aimed to promote competition within various industries in the United States.  The order includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy.  According to the Administration, this order is a “whole-of-government” approach to drive down prices for consumers, increase wages for workers, and facilitate innovation. This was a major step in the right direction to weaken the power that major businesses have obtained as a result of corporate consolidation in industries like healthcare, technology, transportation, and especially agriculture.

This Executive Order also established the White House Competition Council to drive forward the Administration’s whole-of-government effort to promote competition.  On September 10, 2021, the Competition Council held its inaugural meeting to discuss promoting pro-competitive policies and new ways of delivering concrete benefits to America’s consumers, workers, farmers, and small businesses.  During the meeting, the heads of the Department of Health and Human Services, the Department of Transportation, the Department of Justice, the United States Department of Agriculture, and the Federal Trade Commission briefed the council members on their efforts to implement the directives of the Executive Order.

The Challenge of Facing the Consolidated Agriculture Industry

According to an October 20, 2021 report by Thomson Reuters, Tom Vilsack, the U.S. Secretary of Agriculture, said that the Biden Administration plans to take a hard look at the consolidation of the seed industry and figure out “why it’s structured the way it’s structured” and “whether these long patents make sense.”  The White House Competition Council is certainly faced with a difficult challenge to parse through both anti-competition law and intellectual property law.  For centuries these bodies of law have caused great debate.  One body of law restricts monopolization wherein the later grants monopolistic opportunities.

There is no doubt that any changes to the current seed industry scene would shake things up.  But what exactly would that look like?  Are we going to see the “Big-4” morph into another, new identity?  Are changes to the patent law system likely?  Whatever happens, the agriculture industry will likely pay close attention to the actions of the White House Competition Council over the next couple months.

Article By Reinier R. Smit of Summa PLLC

Copyright 2021 Summa PLLC All Rights Reserved

Biden Signs Largest Climate and Resiliency Infrastructure Bill in U.S. History

Today President Biden signed H.R. 3684, the “Infrastructure Investment and Jobs Act” (IIJA), into law after months of negotiations on both the bill itself and the still pending “Build Back Better Act”. These two measures encapsulate the Biden Administration’s legislative priorities, many of which were rolled out during the campaign. The U.S. Senate passed the IIJA on August 10 by a vote of 69-30. Last week, on November 5, the House of Representatives passed the measure by a vote of 228-206. The months long negotiations resulted in bipartisan support for the IIJA in both the House and Senate.

Broadly, the IIJA:

Provides Funding: The funds provided are appropriated dollars, allowing Executive Branch agencies to distribute funds without further legislative action. The funds provided are for both new and existing federal programs for surface transportation, energy infrastructure, transportation safety, transit, broadband, ports and waterways, airports, drinking water and wastewater. ​

Expedites Permitting: There are several new programs created to support transmission development and streamline the permitting of new energy infrastructure, such as electric transmission

Provides New Authorities and Creates New Programs: Various federal agencies are required to develop new programs and processes, all aimed at deploying clean energy or improving cybersecurity​.

The IIJA represents a monumental investment in all types of infrastructure. However, most significantly, it will provide the largest federal investment since the New Deal in the Nation’s infrastructure and in developing the tools to curb carbon emissions and harden infrastructure to increase resiliency against the current global challenge of climate change. The Department of Energy and other federal agencies will receive $65 billion for power and grid related programs, including grid infrastructure, resiliency investments, clean energy demonstration projects and cybersecurity. An additional $7.5 billion will be available for alternative fueling infrastructure for grants to build public fueling systems, including electric and hydrogen fuels, establish alternative fuel corridors, and find ways to recycle used electric vehicle batteries to be reused as energy storage devices.

In July, our team shared the details of the bill passed by the Senate Energy and Natural Resources Committee. As signed into law, this earlier summary still accurately reflects the details of the funding that will be provided.

Implementation and Timing of Funding: Agencies will now be tasked with standing-up new or expanding existing programs to award federal funds to eligible infrastructure projects. Agency offices will work over the coming weeks to establish grant program parameters, develop, and publish solicitations for applications, set timelines for awards and oversee implementation of awarded funds.

The IIJA included deadlines for some agency actions, requiring that programs be established in 60, 90, or 180 days. Note that many of the agency offices, particularly within the Department of Energy, remain functioning without political appointees. For instance, the Office of Electricity, which will be responsible for issuing $3 billion in grants through the Smart Grid Investment Matching Grant Program, is operating under an Acting Assistant Secretary until the Senate confirms the Biden Administration’s nominee for that post. There are no legal or political impediments to getting funding programs up and running without a political appointee heading any federal office, but political influence on the pace and timing for the process may be limited.

Certain programs will automatically send funds to states through existing formula funding programs. Formula grant programs are non-competitive awards based on a predetermined formula. These programs are sometimes referred to as state-administered programs and are found throughout the federal government. Examples include the Environmental Protection Agency’s Clean and Drinking Water State Revolving Loan program, and the Department of Transportation’s Formula Funds for Rural Areas, and Buses and Bus Facilities formula grants programs. Once the states have received their federal allocations they will then make those funds available through their existing award structure, which may be competitive or formula-based.

How Your Organization Can Apply for Federal Funding Opportunities: As agencies establish parameters for new programs or develop solicitations for existing programs, it is important to engage with the agencies in this process to ensure your project will meet agency program criteria for a funding award, and to ensure solicitations are designed to support your infrastructure projects. Our professionals have had significant success in assisting clients through these processes, and successfully assisted clients in the development of grant applications for awards under both Democratic and Republican Administrations. Contact any of our professionals to learn more about what grant programs your organization may be eligible for, how to engage with the agencies, as well as apply and partner with the federal government to ensure funding is awarded for your project.

What’s Next, Human Infrastructure: The IIJA represents only the provisions in the Biden agenda that were able to earn bipartisan support. The remainder of the President’s priorities are encapsulated in a Budget Reconciliation bill, H.R. 5376, the “Build Back Better Act”, (BBBA) developed by House and Senate Democrats and requiring only a 50-vote threshold in the Senate.

For months, the Build Back Better Act and IIJA and were linked in the legislative process by President Biden and House Speaker Nancy Pelosi (D-CA) who demanded that one not pass without the other. This approach resulted in a rift between the Democratic Party’s moderate and progressive members. While the final outcome for the IIJA resulted in bipartisan votes in both the House and Senate, passage only came after a deal was struck between moderates and progressives within the Democratic Caucus to decouple the IIJA and the “Build Back Better Act”.

House Speaker Nancy Pelosi has publicly said that the “Build Back Better Act” will be brought to the House Floor during the week of November 15. Senate Leadership has made no such promise for timely action. In addition, some House Democrats and some Senators have announced they want to see the details of budget scoring – what individual provisions will cost – from the Congressional Budget Office (CBO) and the Joint Tax Committee – before proceeding. Some limited data has begun to be released by the CBO but not any numbers covering many of the most complex and controversial programs. The schedule may be accelerated if Democrats and Republicans cannot come to an agreement to increase the debt ceiling, a must-pass measure that may need to be included in the Budget Reconciliation process. As negotiations continue, the content of the legislation passed by the House is expected to be altered significantly during Senate consideration. Should that be the case, the House will vote a second time on the measure as amended by the Senate.

Article By: Tracy Nagelbush Tolk and Tiffany Ganthier from Van Ness Feldman LLP

© 2021 Van Ness Feldman LLP

POT HOLE: Cannabis Companies Getting Caught in the Mini-TCPA Trap

One of the biggest TCPA trends earlier in the year was the onslaught of suits against cannabis companies related to marketing texts.

After my big interview with the National Cannabis Industry Association, those filings went down as dispensary TCPA awareness went up. (You’re welcome.)

But the trend of high dollar TCPA class suits against pot dealers seems to have moved South for the winter–down to the Sunshine State.

We’ve picked up a few new recent filings brought under the Florida Telephone Solicitation Act (Mini-TCPA). The suits allege that the blast text platforms used to send marketing texts meet the state’s extremely broad definition of an autodialer and require express written consent (which is allegedly missing).

For instance in the latest suit filed earlier today, the allegations focus on the automatic selection and dialing of numbers: Defendant utilized a computer software system that automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.

Notably this suit appears to be brought against a cannabis delivery platform and not an actual dispensary.

Read all about it here: Herban Delivery

Per usual the suit seeks to represent all individuals receiving similar messages in the state of Florida. It is brought by the folks at Shamis and Gentile who file a lot of these things.

© Copyright 2021 Squire Patton Boggs (US) LLP

Article By Eric J. Troutman of Squire Patton Boggs (US) LLP

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

H.R. 3684: Infrastructure Investment and Jobs Act

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

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

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

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

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

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

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

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

Question: How will the money be distributed? 

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

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

Question: Which projects will qualify for funding?

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

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

Article By Katherine M. Caprez of Roetzel & Andress LPA

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

©2021 Roetzel & Andress

Meta Announces the End of Facial Recognition Technology on Facebook

The Facebook company now known as Meta announced this week that it is shutting down the Face Recognition system on Facebook.  Meta stated that this is part of a company-wide move to limit the use of facial recognition technology in its products. What does this mean? If you have a Facebook page and you previously opted-in to be automatically recognized in photos and videos on Facebook, this feature will be disabled. Meta also announced that it is deleting more than a billion people’s individual facial recognition templates.

Meta claims in a press statement released this week that it needs to “weigh the positive use cases for facial recognition against growing societal concerns, especially as regulators have yet to provide clear rules.”  Although Meta doesn’t elaborate on what the details are of the growing societal concerns, the company states that it seeks to move toward narrower forms of personal authentication.

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

For more articles on facial recognition, visit the NLR Communications, Media & Internet section

Law Firm Culture After COVID-19 with McCarter & English [PODCAST]

How has law firm culture changed in the world post-COVID-19? Rachel and Jessica discuss that and DEI with Bernadette DeCelle with McCarter & English law firm.

Read on for a transcript of our conversation, transcribed by AI:

 

Rachel
Hello and welcome to legal news reach, the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO law firm best practices and more.

Rachel

I’m Rachel, Editorial Manager for the National Law Review.

Jess
And I’m Jessica, a web content specialist. And we’re the CO hosts for legal news reach

Rachel
Today Bernadette DeCelle Senior Director of Client Development and Marketing for McCarter and English joins us for a discussion on law firm culture COVID-19, and more. Bernadette, would you like to introduce yourself to our listeners?

Bernadette
Sure. Thank you for having me today. I’m Bernadette DeCelle. I am senior director in charge of client development and I have over 20 years in legal marketing. And before that I started as a graphic designer doing consumer product designs, quite a range of experiences over the past 20 years starting in communications and then learning business development and eventually leading teams at Weil, Gotshal, Herrick Feinstein and now at McCarter.

Rachel
Thank you for joining us today. We’re excited to get your insights. So one of the questions I want to dive in first here was we wanted to learn a little bit more about how what McCarter has done differently in terms of other law firms of its culture compared to other law firms you’ve worked with.

Bernadette
So McCarter is based in Newark, New Jersey. And I think maybe that has something to do with there’s a real lack of pretension among the lawyers, which is refreshing. There are plenty of smart people. We have 27 PhDs on the staff, and we work for very sophisticated fortune 100 clients, but you just don’t get that arrogance that maybe it’s a New York thing, I don’t know. But that sense of down-to-earth quality is really nice to be part of that kind of a collaborative team. There are no lawyers versus staff kind of mentality in our firm. Everybody collaborates together. It’s a real collective team, which is, I think, great for the clients. Because everybody gets together does whatever it takes to solve client problems, I think makes it a lot more rewarding for a lot of the lawyers here working and stuff as well.

Rachel
We want to talk a little bit more about just law firm culture and pro bono in general. So I was curious if you could speak a little bit about McCarter’s DEI initiatives and how that affects law firm culture.

Bernadette
Sure. McCarter has been very involved like most firms in expanding their lawyer ranks, especially on diversity. And they’ve been doing all types of partnerships with different organizations from sponsoring high school programs and debate programs in high schools even adopting a few high schools in each of our cities so that students see what a law career could look like. High school students spent a week in our New York office during the summer, you know, doing intern positions after 2020. And after the murder of George Floyd, it was really great to see our firm, combining the efforts of our pro bono team and our Diversity Committee to create the Social Justice Project. And that has been a great initiative, having McCarter behind ways to really dismantle structural racism. And what we’re going to do is it’s really through we’re looking at it through the lens of criminal expungements Housing and Economic Development. So there are three pillars to the Social Justice Project, which allow both lawyers and staff to do community service and pro bono projects. One of the best things I think about the social justice project has been the educational component so far, because we put on educational webinars that were open to both staff and to clients. And one of the first ones was three of our lawyers giving very powerful stories of what it was like to be a black lawyer in America and in the ratio of things that they’ve faced the hurdles that they’ve overcome, and really poignant stories, some of them had, they said they hadn’t even shared with their own families, but it’s, it was eye-opening, I think, to a lot of us who don’t understand every day what they go through just being a person of color and being treated differently.

Rachel

So how do these pro bono efforts fit into McCarter’s overall Legal Marketing Program?

Bernadette

Our pro bono program is great because it gives us a chance to partner with clients on pro bono projects. Oftentimes corporations and legal departments don’t have the same either time or structure to bring pro bono and to do pro bono internally. So it allows our team our pro bono partner to come up with ways to collaborate with clients on immigration clinics, we do things with veterans, helping them get medical things past appeals, there are things that the VA hospitals have turned down on the business development side always see pro bono as a way to reach out to clients and to do something different with them. And they welcome it helps our without our partners don’t have to do an ask, you know, in terms of getting new business, it’s just a way to work with the clients in a different way. There’s a number of clinics, we’re going to start a housing clinic soon as well. So there’s a bunch of ways we can collaborate with clients. And that’s been huge for business development purposes.

Jess

I just want to comment that I think it’s great, you guys have those initiatives. I know the general public has a really strong distrust for attorney offices in the legal industry, just in general. And the fact that you guys acknowledge and try to host those webinars on minority attorneys can really create a different kind of trust that, oh, this law firm acknowledges that this is something that exists. And I think just saying that you see that and that you want to try to be better with the initiatives you have helps people see that maybe things could change, or, you know, I want to hire this attorney because they’re not ignoring something that I’m worried about. Not me personally, but somebody who’s affected by those things.

Bernadette
I’m impressed that we’re putting our money where our mouth is basically it’s not just saying and putting a statement up on the website, we’ve also hosted two or three webinars where we invited professors from different universities, people from the University of Chicago, who are experts on either criminal reintegration and all of the problems with the prisons or on voting rights. So we’ve had some really interesting speakers from outside, we’ve decided as well to hire a full-time social justice fellow, and part of their role is to help with the educational programming, but to also work with the pro bono committee in terms of doing a lot more pro bono that’s focused on social justice issues. We had a pro bono fellow for the City of Newark, where I’m proud of the fact that we have two full-time lawyers just focused on various social justice issues. It is part of that culture that makes McCarter unique.

Jess
So to dive in on COVID. That’s kind of been a common theme with some of our other interviews with marketing and law firms. On our other episodes of this podcast, how have your guys’ communications and marketing efforts changed since the pandemic started?

Bernadette
Well, it’s been all webinars all the time, it’s really was a complete pivot to what we used to do, or which were so many in-person events, we quickly realized there was such a need for alerts and all the new rules that were coming out. Our lawyers really stepped up and created a lot of content. For the website, two of my team were working almost full time on just webinars last year, it was crazy. It really was amazing that the amount of content they created.

Jess
I’m sure that was a shift by itself. Are there any other surprises that you guys had to deal with also, because of the pandemic?

Bernadette

I was quite surprised by the number of lawyers who actually stepped up and lawyers who didn’t, in the past, write as many alerts became subject matter experts almost overnight, and really read through all those regulations and PPP loans and really became creative in their responses and ways to create short alerts that our clients could digest quickly. I was also surprised at the demand for legal work, everybody thought things would slow down, but it seemed like clients needed our expertise in different areas, Employment Insurance recovery, what they could get back from, you know, their insurance companies. So it really created demands and other areas, which was nice since the litigation, you know, slow down for a while, but then litigation did pick up again, once they figured out how to do courts do everything over zoom.

Jess
And I’m sure anything related to real estate and property and evictions was probably another surprise with COVID especially so it’s good. You guys had that initiative kind of already in place to help those people because that’s going to be a large trend that we see still being talked about, especially when the moratorium was still in place or

Bernadette
Right yeah, once the moratorium lifts me with I think it just lifted right it depends but some states where we are have extended it through the state not through you know, but it is gonna really create a huge crisis, I think. And that’s where our social justice fellow is going to be working with the pro bono fellow in Newark to really work on different things.

Jess
It was definitely a huge worry among people. And, you know, reaching out to attorneys, even just calling I’m sure to ask a question about it. Among those surprises that you guys had, do you still have any challenges that you’re dealing with? In the firm? Now,

Bernadette
I think, you know, keeping our lawyers engaged right now in business development activities a little more challenging, because we don’t see them, we can’t go knock on their office door, you know, they might be working more from home permanently. So it’s as much on our part to reach out to them and communicate and stay top of mind. When they see us. They’re reminded, oh, yeah, I have to write that client alert. I have to, you know, get ready for that presentation. But out of sight, out of mind, I think sometimes and that’s a definite challenge for us.

Rachel
So you spoke a little bit about the surprises brought on by the pandemic, and what you guys have been doing to sort of keep things going, I guess, moving for, like, how do you see things changing the legal industry, in terms of like these topics of like, remote work, like how to keep attorneys engaged? How will we work with people working remotely and be working in the office? I think these are things that are really on top of mind for a lot of firms right now.

Bernadette
I agree. There are so many unknowns out there. And firms are doing it in so many different ways. I’m hoping that a hybrid workforce becomes the norm. Now, I hope law firms get to that point where they realize all of the teams were amazing and productive during the pandemic, at home. So there’s no point in thinking you have to be in the office to be very productive. But I also see real shifts in technology. So my firm went to paperless billing during the pandemic, it was maybe the second month and I applaud my IT and finance department for rolling that out. It was out of necessity, I actually think they never would have gotten it done as quickly had had we been in the office. And I think they agree you know that because it was imperative because nobody wanted to be shipping out bills and having that back and forth. On paper, it really was a success. So I think you’ll see a lot more technology being rolled out a lot easier than in the past because we all know lawyers don’t like change, but technological advances for the better are welcome.

Rachel
And do you think an increasing focus on technology will help law firms be more prepared for future challenges? Like COVID or after COVID? I think one of the things that we’ve talked about in the last episode is really just how to pivot when things like this happen when like these are large disruptions occur?

Bernadette
Absolutely. I think technology’s going to really be a factor in firms that succeed. I think firms that stay nimble, you know, and lose, I think also a lot of the bureaucratic approval processes, there was no time to go through approvals. People just had to get things done. Right. They had to move forward and come up with decisions quickly, whoever was on, you know, committee call made those decisions. They didn’t wait. Slow grinding process of approvals. Staying nimble is really going to be I think, a key to a lot of law firms succeeding in the future.

Rachel
Yeah, so one thing you said earlier about how moving from paperless billing to now using virtual billing. So sort of like it was something that happened because of COVID. And like really sped it along because of COVID. I think that’s something that we’ve heard from other guests, too, that the pandemic really spurred law firms to make these changes that they had been considering for a long time, but just hadn’t had the catalyst to do it. So I think that probably has been a really big lesson as well.

Bernadette
Our IT department had to train everybody over Zoom remotely. And it was tough.

Rachel
Obviously, law firms didn’t really have much of a choice, either switch or you know, stuff doesn’t get done. So sort of like in that same vein of working remotely doing things over zoom. How has McCarter really made hybrid work arrangements work during the pandemic? And how do you think you know, other law firms can really learn from that moving forward?

Bernadette
I think the biggest thing is to trust your team. And so, again, when you have a collaborative culture already that it really helps. Our Managing Partner and our chairman did a great job communicating, especially at the beginning, when everybody was feeling really unsure and not knowing what was going to happen next, they would send almost daily emails, those daily emails and that communication and keeping people in feeling like they’re in touch, we’re really important. Our Chief Human Resources Officer also sent out one to the staff and hers were kind of funny and just kind of motivational to make people feel like they were still part of the team and in touch with each other, you know, should send out Happy Anniversary things. And I think going forward, people just have to maintain that trust in that everybody’s going to rise to the occasion, you know, everybody’s going to do their best job, whether they’re in an office or whether they’re at home, people want to perform and do well, that hasn’t changed. And that’s not going to change.

Rachel
Right. I think that is something really important to move forward with, I think, especially code has shown us that it is possible to have people working remotely. And now that, you know, I think some people have gone back to the office. But if it’s working well now, then I think you can trust that it’s going to work well in the future.

Bernadette
Yeah, we’re back in the office two days. I, you know, I think they want us to get back five days eventually. I hope, maybe four days would be nice. It feels nice to be in the office. But I sure would love to not have that commute.

Rachel
Oh, yeah. I understand that. So we also have a Q&A section here. So if you have any questions you’d like to ask us, we’d be happy to answer them.

Bernadette
Yeah, I was wondering what you guys have seen in terms of any new marketing trends that have emerged since COVID? Or even just in general, not because of the pandemic?

Rachel
Yeah, so we sort of already touched on two of the ones in our conversation so far. But I think one thing that we’ve definitely seen is the sort of switch to virtual events, and also this really big influx of more firms doing webinars and things like that, we specifically have a place on our website where our publishing clients can share their webinars with us. And I think, you know, we’ve had a pretty full schedule of things that people are putting on basically, since last March, when things really started to get really crazy. And I think also, one of the things that I think has been really important Since COVID started is just the focus on social media, lots of people being more active on LinkedIn, people staying connected with their clients and other followers on Twitter. I think that’s a really great way. You know, if you can’t meet in person, you know, you can’t network in person, like just staying connected, when people just can’t physically be in the same room together, I think has been really important.

Bernadette
We’ve been posting a lot more on social media ourselves, it’s a good way to stay in touch. Do you see technology like artificial intelligence? How do you see that in the marketing space changing?

Jess
Well, it’s interesting, because you already mentioned that you guys just switched to electronic billing. And I think that’s been one of the first changes law firms have made with AI, it’s already a difficult task as a firm to keep your clients updated to make sure attorneys are submitting their billables. And if there’s a way to automate that, that just takes maybe one task, but it makes a huge difference. Sometimes when you have such a heavy workload. I know in small ways firms usually have, you know, their chat bots on the websites. So somebody is going on their site has a question, it’ll usually try to divert them to a different way that might be helpful, you know, instead of having a person have to monitor that, or maybe it could bring down some of the call volume. I think some of the concerns that attorneys have when it comes to implementing more technology is, you know, this huge concern with cybersecurity. We see that a lot when it comes to business. A lot of our clients write about that, just because I mean, the more in depth you get with technology, the more you intertwine your business with it, you are opening yourself up to more risks, especially with a law firm, you know, you have very sensitive information, attorney client privilege, you really don’t want someone to hack, even if you’re a smaller firm. So I think some people are really resistant to that part. And I think everybody’s always afraid of technology replacing people. So support staff, if you have AI that can look up case law. There’s a law clerk you didn’t need in your office that can help you with that or your paralegal. So,

Bernadette
Well, one of the heads of our emergent growth practice only says that young lawyers need to be coders because, you know, even just in contract law, there’s a lot of AI starting to do the basic template and contracts. So there goes the junior lawyers work they might need to be coders instead of lawyers.

Jess
I worked at a law firm when COVID first started. And one of the big, I think the first change they made was getting people to be electronic notaries just because everybody was now either in office or not in office. So it’s not technically AI, per se. But just having that, I guess they use something similar to blockchain, to know that someone’s signed it at this specific time on this computer to make sure it’s just as legitimate as in person signature. So that’s kind of been interesting as well, I think can be for the better, though. Now you can reach clients anywhere.

Bernadette
I totally agree, I think there’s gonna be a lot of good changes. But as we all know that lawyers don’t like that they don’t adapt so quickly. So maybe the adaption rate will be quicker. And they’ll say that it’s not so bad after all.

Rachel
Another sort of technology adjacent thing that we’ve been seeing is just lawyers feeling more empowered having more readership analytics available to them, we of course, offer a platform of analytics to our publishing clients. But one of the things that we’ve heard from other people is that, you know, since people are working remotely, especially from like a legal marketing perspective, like just having that information, that data at your fingertips, like sort of informs lawyers on in terms of like how their content is doing, and, you know, trends that they can follow, and things like that. So that’s been another thing that we’ve noticed,

Bernadette
Those kinds of analytics are really helpful, especially for us to say, this is what you should be writing about, you know, with so many great firms out there. And that’s what I try to get my lawyers to understand to differentiate yourself is pretty difficult because there are so many smart, talented lawyers what to you to recommend to, you know, to differentiate themselves on a platform like the National Law Review, how did they go about that?

Rachel
So a few things that we often recommend to people who publish with us is to post regularly. So if you’re going to launch a new blog, don’t just like post one thing on it, and then like, not touch it again, for six months. So that’s, that’s also important. Another thing is to post timely content. So if there’s like a new decision out of I don’t know, the Biden administration, or the EPA or something like that, like right on it ASAP. And basically, as soon as that decision comes out, otherwise, you know, if it’s already been out for a couple weeks, it may not be as successful as article, it was posted pretty quick to win the decision happened. And then also, like, just another thing in terms of like, us being a news website, if at all possible, we try to encourage our clients to publish articles, you know, in the afternoon, like earlier in the day, rather than like, 5pm on a Friday, you know, because often, you know, people just won’t see it. And, um, you know, you put all this effort into something and you know, no one really looks at it. So those are just like a few, just like sort of basic timing, things that we find is useful. And then like moving forward from that, in terms of how the content is format is also important. So we find that like strong use of keywords, bullet points, header status questions, just trying to imagine the piece of content in terms of how your audience will actually find it. So you know, if they’re looking for information on California Employment Law, like trying to imagine the questions they have, and try to work that into your articles, you’ll be more likely to find it that way. And then also, you know, like a wide array of different pieces of content. So a lot of our clients, they don’t just do blog posts, they also do videos and podcasts, things like that, just so they even tie the two together, where have an article that has a video component, or if they post a podcast that also include the transcripts, just sort of making content go farther, and just making it as diverse as possible. And then other thing is just like to make it personal and to sort of tailor it to your audience like trying to imagine who’s going to be reading this, and how can you make it as digestible and relevant as possible. As always, as we discussed earlier, just having a presence on social media, getting your work out there and finding your audience in your platform have all been really important, useful things you find for clients to do.

Jess

One of the most important things to remember is that there are people out there who want the content that you guys would create, like there are people who want that information. They want your expertise. And when law firms maybe specialize in certain areas, that’s a way you can differentiate yourself and produce content that’s really valuable with any website, anything that you’re going to post on any page. If the content is relevant to an audience, and it’s informational and useful. That’s always going to do better with SEO. And just get more eyes on in general because, you know, a lot of legal information on cases and case law is not public knowledge. And the public really wants that they will eat that up at any chance they get, especially if it’s really relevant to what you know this user wants, or this visitor really is looking for specifically.

Bernadette
Do you see a lot more video? And do you see a lot more eyeballs on video on your web, on your platforms, because we’re starting to dip our toe in, but it’s a whole different world for our lawyers.

Rachel

So a lot of our clients do use video really effectively. And they have been successful with video, probably the most prominent example I have is Epstein Becker Green does, like an employment law this week video every week. And I think that’s pretty popular. And they also do a podcast, they do articles, and they’re all sort of under that same umbrella. So it’s just a way for them to sort of integrate video into the written content, and also have a podcast on it. And they have, you know, the same attorney does it every week. So it’s a way for that attorney to really be front and center.

Jess
And I think when it comes to video, you know, the biggest hurdle is when people are hesitant about it, or they’re not comfortable with video, just to remember that putting your face on someone’s screen – clients already like to talk to the attorney directly, whether it’s over the phone or in person. So having a video kind of also tones that need down or takes care of it a little bit better, I think. And if they’re a little hesitant, even just what is the question, our clients are asking a lot, and then just doing a really short video on that just to get started doesn’t have to be a whole event, or it doesn’t have to be a long video with guests. It can just be I’ve seen attorneys just sit down on a video for Facebook, like their Facebook page and just do a real quick video on a very specific topic. And I think people are so used to being visual online now that that tends to garner more interest just because they get to just sit and watch it. That or listening to something.

Bernadette
I think you’re right that people are watching a lot more video on every platform. So even for law firm websites, because people are used to it like maybe eight years ago, and they didn’t want to watch a talking head on a law firm website. But now everybody watches videos pretty much all the time.

Rachel
I think one of the other important facets of it is just like doing what the attorneys are comfortable with. So some attorneys are better talkers than they are writers. So if they’re comfortable being in front of a camera, and sort of speaking about employment law, that’s definitely something they should do. I think, you know, just really thinking of who the attorney is and who their clients are. It’s an important aspect of that.

Bernadette
And that weekly repetition is huge, because that’s one way that you really create an audience. So what are ways that you guys are hearing trends in recruiting? And how are people attracting talent, I know a tight labor market out there.

Rachel
Right. So I think one of the things that we’re definitely hearing the most, and like I said, from other guests, we’ve had on this podcast, a lot of people are finding it really hard to find good talent right now. Um, and I think one of the big trends that we’re seeing is just people wanting to keep the remote flexible working options, sort of going back to our conversation earlier, just the trust that people can work from home, and that they can basically have more control over their schedule. And if they have a really big commute, then they don’t really want to have to sit in the car be pm the train for an hour, I think a lot of people have really realized just how much sense remote work really makes. Um, and so I think firms that embrace that they, you know, are nimble and allow their employees to work remotely and have that flexible hybrid option. I think that will make a big difference. Um, I think also just up on the big trends that we’re seeing is just firms like really strong company values, like diversity inclusion initiatives, um, you know, feeling like you have a voice and that your firm does really great work, I think also helps set it apart.

Bernadette
Making sure people are heard in it during the pandemic and actually our head of human resources sent out a survey on our wellness initiatives and how well we’re doing. So I thought that was really nice today to make sure that what we’re actually doing is what people want. And again, that’s part of communication, which is the world the three of us are in so it all comes down to communicating I think.

Rachel
Yeah, and I’ve heard of other firms just staying connected with their employees sort of like what you mentioned earlier with sending out you know, e cards on anniversaries and birthdays and things like that. I think just finding ways to stay connected and making people feel appreciated is also important. I think especially now that I think because of the pandemic, like workloads are just really high. And I think people might start to feel a bit burnt out, and trying to cope as best as they can.

Bernadette
There’s been so many challenges. And on top of the increased workload is everything. You know, if you have kids at home, and all of the issues that people have been facing, you know, whether people in their family are sick, or whether it’s just been a lot for so many people, it’s important to step back and remember that we’re all we’re all human. And just to celebrate little things like birthdays and anniversaries are really important, just to be with the fact that you remember and recognize somebody’s birthday is always nice. I think we covered a lot today. Thank you. Again, I really appreciate the opportunity to be on the show and look forward to speaking with you and listening to the podcasts later.

Rachel
Yeah. Well, thank you so much for taking the time to come on today. We really appreciate it. So yeah, special thanks to Bernadette DeCelle for joining us today.

 

Copyright ©2021 National Law Forum, LLCNational Law Review, Volume XI, Number 307

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

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

Biden Administration to Open New For-Profit Immigrant Detention Center in Pennsylvania

After Pennsylvania’s York County prison dissolved its contract with Immigration Customs and Enforcement (ICE) in August, it was announced that a new immigration detention center will be opened in Clearfield County. The Clearfield County Board of Commissioners approved and signed a five-year contract with ICE and the GEO Group.

Clearfield County Immigration Detention Center

The prison, which operates for-profit, will convert the former Clearfield County Prison facility into a detention center to process individuals in violation of federal immigration laws. The prison can house roughly 1,900 immigrant detainees, but due to COVID-19 safety requirements, no more than 800 members will be held. “The beds will hold adults. There will not be any children. Primarily males, with some room for females,” said John Sibel, a Clearfield County Commissioner.

Training for prison employees is due to start soon, and the facility is expected to be in full operation within the next two months. Upgrades to the prison’s fencing and other areas will be underway soon.

GEO Group Detention Center and Clearfield County

GEO Group, a private company that ran the former Moshannon Valley Correctional Center, also owns the facility in Philipsburg. The correctional center, a federal prison, was closed in March this year. The closure impacted 300 employees, causing job loss in an already economically disadvantaged area.

Unlike York County, where the facility housed both immigrant detainees and other incarcerated people, the converted facility will house only immigrant detainees. Sibel said, “[t]he signing of the contract guarantees now that property tax revenues will continue to come to Clearfield County, Decatur Township, and the Philipsburg-Osceola School District.”

Safety Concerns for Local Residents

Residents of Clearfield County raised safety concerns over the new facility. However, Sibel reassured them that the GEO Group, which is responsible for running the facility, is in the process of upgrading the perimeter, and will transport immigrants who are released to the locations where they want to return.

“A lot of the folks that will be there, that will go through the processing center, will be there because they violate federal immigration laws, but they won’t necessarily have committed a criminal act… that would have caused them to be in the old prison,” Sibel said.

ICE’s Priorities Guidelines to Be Enforced

The Action field office director Brian McShane said that individuals held in the facility will fall under ICE’s enforcement priorities guidelines. Those priorities are focused on national security, border security, and public safety. “They will have their due process in immigration court if that’s what the law calls for while we go through the process to attempt to effectuate their removal,” he added.

©2021 Norris McLaughlin P.A., All Rights Reserved

Country-Specific International Travel Restrictions Will Be Rescinded November 8, 2021

Beginning November 8, 2021, international travelers subject to CDC country-specific travel restrictions will be able to resume travel to the U.S. without applying for an exemption. The current travel restrictions apply to certain travelers from China, Iran, the European Schengen area (the EU), the United Kingdom, the Republic of Ireland, Brazil, South Africa and India, and prohibit a foreign national who does not qualify for an exemption from traveling to the U.S. if they have been physically present in one of the designated countries 14 days in advance of their arrival to the U.S. These restrictions will be rescinded and replaced by new travel restrictions based on individual vaccination status:

  • Beginning November 8, 2021, all adult foreign national (i.e. non-immigrant, non-citizen) travelers will be required to prove that they have been fully vaccinated against COVID-19 and provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States. There will be very limited exceptions to this policy.
  • U.S. citizens and lawful permanent residents who are fully vaccinated against COVID-19 will still be required to provide proof of a negative COVID-19 test within 3 days of boarding a flight to the United States.
  • U.S. citizens and lawful permanent residents who are not fully vaccinated, or who cannot provide proof of full vaccination, will be required to provide proof of a negative COVID-19 test within 1 day of boarding a flight to the United States.
  • Airlines will verify a traveler’s negative COVID-19 test result and vaccination status.
  • Airlines will be required to collect comprehensive contact information for every passenger arriving in the United States, and provide that information to the CDC on request, and will be required to contact travelers who have been exposed to COVID-19.
  • Children under 18 are exempted from the vaccination requirement.
  • Children between 2 and 17 must present a negative COVID-19 test result.
    • If traveling with vaccinated adult, the 3-day testing requirement applies.
    • If traveling alone, or with unvaccinated individuals, a 1-day testing requirement applies.
  • Proof of vaccination must be a paper or digital record issued by an official source with the traveler’s name and date of birth, and the name and date of the administered vaccine doses.
  • Land travel at the U.S.-Canada and U.S.-Mexico borders is permitted for all fully vaccinated travelers, regardless of purpose of travel. Unvaccinated travelers must continue to demonstrate that their purpose of travel is essential. The essential travel requirement for unvaccinated travelers remains in effect through January 21, 2022. After January 21, 2022, all foreign national travelers, whether entering for essential or non-essential reasons, must be fully vaccinated.
  • Limited exceptions will be provided for the following classes of non-citizen, non-immigrant travelers:
    • Persons on diplomatic or official foreign government travel
    • Children under 18 years of age
    • Persons with documented medical contraindications to receiving a COVID-19 vaccine
    • Participants in certain COVID-19 vaccine trials
    • Persons issued a humanitarian or emergency exception
    • Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
    • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
    • Sea crew members traveling with to a C-1 and D nonimmigrant visa
    • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)
  • Exempted travelers must take a viral test within 3-5 days of arrival and self-quarantine for a full seven days regardless of test result. For those who intend to stay in the U.S. for 60 days or longer, they must become fully vaccinated within 60 days of arrival or as soon as medically appropriate.

This is welcome news for international travelers from the 33 countries affected by the travel restrictions who have not been able to qualify for an exemption. Under the current travel restrictions, set to expire November 8, 2021, U.S. citizens, lawful permanent residents and their spouses are exempt, as well as parents of U.S. citizen minor children (under age 21). Otherwise, affected travelers must apply for a National Interest Exemption through a U.S. Consulate abroad.

For more information on the new travel policies, please view this information from the Department of State and the CDC.

© 2021 Miller, Canfield, Paddock and Stone PLC

Article By Julianne Cassin Sharp, Elizabeth Baker, and Christopher M. Dutot of Miller Canfield

For more articles on immigration, visit the NLR Immigration section

While Democrats Whittle Down Pro-Labor Provisions Of Social Spending Bill, Civil Penalties Remain

As we discussed here, members of the House Education and Labor Committee have been attempting to end-run the procedural hurdles that have prevented the Protect the Right to Organize Act (“PRO Act”) legislation from becoming law, through a process called “budget reconciliation.”  (For a refresher on the PRO Act, see our blog posts on the proposed legislation here and here.)

In September, the Committee released its proposed language for the federal budget incorporating several key provisions from the PRO Act that would have drastically amended federal labor law, such as establishing civil penalties for violations of the National Labor Relations Act (“NLRA”), personal liability for officers and directors, and newly-defined unfair labor practices that would effectively prohibit employers from utilizing some of the economic weapons traditionally thought to be lawful under the NLRA.  Through the budget reconciliation process, these provisions have a greater chance of becoming law where the bill only requires majority support in both the House and Senate and is not subject to a filibuster.

However, as the social spending bill faced challenges from both parties, the Administration presented a revised framework on October 28, 2021, entitled the “Build Back Better Act.”  The new bill  among other major edits, significantly pared down the proposed pro-labor provisions.

Even under the revised framework, there still exists for the first time ever civil penalties for those who commit unfair labor practices. If passed into law in its current form, the Build Back Better Act would:

  • Impose civil penalties of up to $50,000 per violation of the NLRA;
  • Double civil penalties up to $100,000 for NLRA violations that resulted in discharge or serious economic harm where the employer committed another similar violation within the past 5 years; and
  • Assess civil penalties against directors and officers where the facts indicate that personal liability is warranted.

Fortunately, some of the most significant PRO Act-inspired provisions of the prior reconciliation bill have been dropped from this spending bill; specifically, language that would have made it an unfair labor practice to:

  • Permanently replace strikers;
  • Discriminate against a worker who has unconditionally offered to return to work based on participation in a strike;
  • Lockout, suspend, or otherwise withhold employment from employees prior to a strike;
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the Act, such as misclassifying independent contractor or supervisor;
  • Require or coerce employees to attend so-called “captive audience meetings” or other campaign activities;
  • Enter into, enforce, coerce, or retaliate against employees with respect to class or collective action waivers

The revised spending bill framework is now up for discussion and debate in both the House and the Senate. The bill needs majority support in both chambers in order to become law, and the amendments in the proposed language must withstand potential challenges in the Senate (called the Byrd Rule), which (as we discussed here) is intended to limit amendments that change the substantive policy of federal law, rather than limited to taxes or spending.  The significantly narrowed labor law amendments in the revised bill would seem to have a greater likelihood of withstanding a Byrd Rule challenge than the prior iteration.

As always, we will monitor this situation and report updates as they occur.

© 2021 Proskauer Rose LLP.

Article By Steven J. Porzio, Joshua S. Fox and

Elizabeth A. Dailey of Proskauer Rose LLP

For more articles on labor law, visit the NLR Labor & Employment section.

October 2021: Law Firm Hiring, Legal Innovation & Pro Bono in the Legal Industry

Happy Halloween! We’re back with the second edition of the October 2021 Legal Roundup News Column. Read on for the latest news in law firm hiring, pro bono work, and law firm innovation.

Law Firm Additions, Growth and Recognition

Nelson Mullins Riley & Scarborough LLP announced the addition of Wes Scott as a partner to its Nashville office. Mr. Scott  works with capital markets and the securities industry and specializes in corporate governance and mergers and acquisitions law.

“Wes’s securities experience and knowledge of the banking and financial services industry will make him a great asset to Nelson Mullins,” said Neil Grayson, head of the firm’s financial institutions, corporate and regulatory group.

“I’m excited to be joining such a deep and talented team of attorneys. Nelson Mullins’ financial institutions and securities practices are nationally renowned and are flourishing.  I fully anticipate that the Nelson Mullins’ platform will be extremely beneficial not only for my practice but, more importantly, for my clients’ businesses,” said Mr. Scott.

von Brisen & Roper s.c. expanded their Milwaukee office with the addition of four new attorneys:

Susan Lee joined Goodwin’s Life Sciences practice as a partner in their Washington, DC office.  Ms. Lee advises biologics and technology companies on FDA regulatory and compliance matters, and is ranked by Legal 500 US as a Next Generation Partner for life sciences and healthcare.

“Susan’s broad experience in FDA regulatory strategy, commercialization, and issues related to corporate transactions will be invaluable to our clients at all stages of the product and corporate lifecycle. We are thrilled to welcome Susan to Goodwin,” said Mitch Bloom.

Ice Miller LLP n has opened a new office in Philadelphia,  housing the firm’s Intellectual Property practice, which represents pharmaceutical and biotechnology clients in all aspects of patent law.

“We are excited to expand not only our office space, but also the capabilities of our Philadelphia Office. The move signifies the growth of our IP practice, as well as the growth of the firm. I cannot wait to welcome more IP practitioners and attorneys in other practice areas to join our office to better serve our clients in the greater Philadelphia region and elsewhere,” said Philadelphia Office Managing Partner Weihong Hsing, Ph.D.

Rosenburg Martin Greenberg LLP announced Caroline L. Hecker is the new managing partner of the firm. She is the third managing partner of the firm, and the first woman and non-founding member to assume the role. Ms. Heckler started at the firm in 2007, and became a partner in 2013. Currently, Ms. Hecker leads the Land Use and Zoning team and the firm’s Associate Marketing Committee, which helps to establish business development awareness in its attorneys.

“Caroline is an extremely talented lawyer who possesses the leadership skills necessary to ensure Rosenberg Martin Greenberg’s continued success moving forward. Caroline is highly regarded by her colleagues, the firm’s clients, and other professionals. It is an honor to pass the baton to someone with the reputation for excellence and fairness that Caroline has earned through her exceptional work on behalf of the firm, our clients and the Greater Baltimore community,” said Barry Greenberg, the firm’s current managing partner.

Bethany Biesenthal, a partner in Jones Day’s Chicago office, is now a Fellow of the American College of Trial Lawyers (ACTL). Ms. Biesenthal has experience in White Collar Defense and Business & Tort litigation. Fellowship in the College is by invitation only to diverse experienced trial lawyers whose careers exemplify the highest moral conduct, professionalism and civility, and attorneys must have a minimum of 15 years’ trial experience.

“Bethany is a natural talent. She has been a top-notch addition to our ranks since joining us from the United States’ Attorney’s Office and her induction is a wonderful recognition of her overall outstanding skills as an advisor and a trial lawyer,” said Tina Tabacchi, a partner of Jones Day.

Innovation in the Law

Blakes Law firm is the first Canadian law firm to partner with the Mindful Business Charter (MBC) to help alleviate unnecessary stressors in the workplace and to cultivate effective team work by incorporating openness, respect, improved communication, a considerate delegation of tasks and respect for working hours.

“The Charter is simple — be more mindful, more aware, of the impact we have on each other and give each other the permission to talk about it, to be brave, and to ask for what we need to enable us to function at our best and to thrive,” said Richard Martin, on behalf of the MBC Initiative.

“Innovation comes in many shapes. At Blakes, this focus on smart collaboration reinforces our long-standing commitment to fostering the health and productivity of our teams. Enhancing the way we work together will benefit our Firm, our people and our clients,” said Blakes Managing Partner Bryson Stokes.

Lawmatics announced their new Client Portal, which allows users to share documents, signature requests, calendar events and other contact based tasks. Some of the new features available on the portal include automation tagging, e-signature deadline expiration and more.

Legal Industry Serving the Greater Good

Faegre Drinker is the recipient of the Inaugural Law Firm Founders’ Award from the Immigrant Law Center of Minnesota (ILCM). The ILCM is a nonprofit organization that provides pro bono or low cost legal services to those in need of immigration legal assistance, and works to educate organizations about immigration and human rights.

Faegre Drinker’s attorneys are recognized by the ILCM for their pro bono efforts and for their assistance in creating the pro bono program.

Evan J. Lide of Stark and Stark recently accepted a position on the Board of Directors of Lambertville Helping Hands, which provides Hurricane Ida disaster relief. Mr. Lide has experience in the areas of accidents and personal injury law.

“I have seen first-hand the devastation that Hurricane Ida has brought to my town of Lambertville, especially to my neighbors at the Village Apartments. More than half of the residents in town have suffered some amount of flood damage, and the recovery is far from over. Lambertville Helping Hands helped direct the volunteer effort in town, and I am pleased to have been asked to join the Board to help ensure these funds get to the people who need them most,” said Mr. Lide

Frost Brown Todd (FBT) awarded their annual Diversity and Inclusion Scholarships to five students for demonstrating academic excellence and a commitment to diversity and inclusion efforts. The FBT Diversity and Inclusion Scholarships award five $2,000 scholarships to help build a diverse legal pipeline and to give support to underrepresented students.

The five students  selected are:

“We are excited to offer this FBT scholarship to students who are currently law students or intend to attend law school in the future. In the past 11 years, we have handed out this scholarship, we have been inspired by the commitment the recipients have to create a diverse, equitable and inclusive community. We look forward to watching their successes in the future and are proud FBT could provide support in that journey,” said Committee Chair Justin Fowles.

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

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