Category: Administrative & Regulatory

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.

Copyright ©2021 National Law Forum, LLC

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

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

How the Labor Shortage is Impacting the Supply Chain: Would Immigration Reform Help?

As the COVID-19 pandemic continues to present challenges to the US economy, labor shortages are contributing to the ongoing supply chain disruptions facing many industries. Companies are finding it difficult to find the right candidates for the jobs they’re looking to fill while millions of Americans are quitting their jobs or threatening to strike or walking out for better working conditions.

One industry in particular affected by the labor shortages brought on by COVID-19 is the   shipping and warehousing industry. At the Port of Los Angeles, for example, there aren’t enough workers to unload goods from ships, causing shipping delays across the US. Additionally, a shortage of truck drivers is contributing to the problem. Ninety percent of leaders who spoke to the U.S. Chamber of Commerce said labor shortages are impacting economic growth in some areas.

To help remedy the problem, President Joe Biden announced the Port of Los Angeles will be open 24/7, with logistics companies FedEx and UPS making similar pledges. Another potential solution is increasing immigration through offering more worker visas in order to bring in more workers to the country.

Difficulty Hiring During COVID-19: Labor & Visa Shortages

US Chamber of Commerce Chief Policy Officer Neil Bradley told CNN Business that immigration is one of the key ways to solve the labor shortage. However, despite immigration’s potential to add additional employees to the workforce, the number of immigrants US employers can hire has remained flat. Additionally, while there are options for workers with a high level of education, there aren’t as many visa options for employers needing seasonal or temporary worker visas or workers in many service industry roles.

The Chamber of Commerce requested Congress and the White House to double the cap on employment-based visas, specifically to double H-1B temporary worker visas and H-2B visas for seasonal workers.

“When we see these workforce gaps in the nonprofessional roles for instance, US companies are not typically able to turn to the US immigration system to help fill that need,”  said Caroline Tang, immigration shareholder in the Austin office of Ogletree Deakins.  “Across the board, there’s just a tighter labor market now in terms of candidate availability, people willing to do certain types of work or wanting to come back to work in environments where they will be more physically closer to other people, which oftentimes are the roles that really heavily impact our supply chain.”

Also contributing to the ongoing supply chain disruptions is the labor shortage that’s impacting  a wide variety of industries. Some of the factors impacting the labor market during the COVID-19 pandemic include the demand for higher wages as the prices for goods and services rises, as well as better benefits and protections for workers. Additionally, some workers aren’t able to come back to work because they’re taking care of family members sick with COVID-19, or are sick with the virus themselves or childcare problems. Many workers are also leaving their jobs in record numbers, and are delaying coming back to work. For example, in August, 4.3 million Americans quit their jobs.

“I think everyone has been impacted by the Great Resignation as people are calling it. And certainly, that has impacted a lot of the industries that impact our supply chain and a lot of areas in the US,” Ms. Tang said.

Specifically, Ms. Tang said the semiconductor industry in particular is impacted by the labor and supply chain shortages. The shortage is expected to last until 2022 and beyond, and impacts a variety of industries from the automotive industry to appliances and toothbrushes.

“I work extensively in the semiconductor industry. They have definitely been impacted by pandemic related supply chain issues, which we can tell from the cost of automotive prices here in the US since all these cars rely on microprocessors,” she said.

Even though many of the supply and labor shortage issues are expected to last for many years to come, companies can take steps to help mitigate some of the problems they’re facing, Ms. Tang said.

US Company Workers Offshore Solve Some of the Visa Quota Issues

“For the companies that have international offices, they have a wider footprint and have some options with staffing their workers in other countries. So, for instance where companies hire some college graduates from the US who are not able to get one of those H1-B visas, they might potentially work in the person’s home country where they don’t need a visa to work. And that way they can keep that person working on the same project and still contributing research and development efforts for that company,” Ms. Tang said.

If a company doesn’t have international offices, handling visa shortages and delays may be a little harder.

“If a company doesn’t have an international footprint, it’s hard. I’ve been talking to employers that say, ‘Hey, we are just sort of living with the fact that we might only have these employees on our payroll for two to three years because of their visa limitations.’ We need to be considering what we’re going to do about succession planning and making sure that we diversify our employee population as much as possible. I think it’s definitely requiring a lot of creativity from employers,” Ms. Tang said.

How US Immigration Policy Affects the Labor Shortage 

One potential method for addressing labor shortages is to alter current U.S. immigration policy. Despite the ongoing need for workers in all industries, visa caps have remained relatively static, limiting the number of foreign nationals allowed to work in the U.S. long-term. Changes to such policies would be a considerable boon for the supply chain especially, allowing companies to quickly fill roles left empty by the pandemic.

The most likely target for change might be the H-1B visa, which allows employers to hire foreign workers for positions that require particular skills or specialized knowledge. “The annual quota on H-1B visa numbers – it would certainly be helpful to increase that quota,” said Ms. Tang. “That 85,000 number has been static for many, many years. It’s not a fluctuating number based on any sort of economic conditions or economic or supply or demand. So, I certainly think it would be beneficial for the government to have some sort of system where that quota number can have a fluctuating number depending on our economic conditions.”

How Does US Immigration Policy Impact the US’ Supply Chain Woes?

Of course, changes to H-1B policy intended for highly skilled employees, are only helpful to a certain point. Some sectors of the U.S. economy are in dire need of employees for non-professional roles, such as the retail and service industries, where highly specialized knowledge is not as critical. According to the Bureau of Labor Statistics (BLS), foreign-born workers were more likely than native-born workers to be employed in service occupations; natural resources, construction, and maintenance occupations; and production, transportation, and material moving occupations. Companies often utilize the H-2B visa to fill these gaps; again, however, logistical considerations and static caps stand in the way. In May, the BLS released updated statistic revealing that employment fell by 2.7 million among the foreign born from 2019 to 2020, a decline of 9.8 percent.

Ms. Tang points to manufacturing as a key example of an industry for which immigration reform would be a windfall. “For the non-professional roles, I think there is certainly an area where perhaps the government needs to create some sort of a work permit to fill these specific demands that our manufacturers are seeing in that area, with respect to the need to staff their manufacturing facilities,” she said. “A visa that’s available that’s for seasonal or peak load work, but again, there’s a quota on that visa as well.”

Per the BIS, the demographic composition of the foreign-born labor force differs from the native-born US labor force. In 2020, men accounted for 57.3 percent of the foreign-born labor force, compared with 52.1 percent of the native-born labor force. By age, the proportion of the foreign-born labor force made up of 25- to 54-year-olds (71.8 percent) was higher than for the native-born labor force (62.2 percent). Labor force participation is typically highest among persons in the 25-54 age bracket.

“It can be very difficult to get the perspective of timing, and oftentimes, employers who are trying to pursue this H-2B visa, if the pursuit of that visa is unsuccessful and they miss the quota, then they’re out of luck with respect to being able to staff the staff in these areas that really require someone to be doing the frontline work.”

In considering how to alter U.S. immigration practices to address supply chain woes, it is also vital that American workers are not forgotten. Policy changes must take into account a variety of factors to ensure a fair playing field. “There have been some proposals in the past, that number be moved up or down based on for instance, the unemployment rate in the United States, so that you were not disadvantaging US workers,” said Ms. Tang. “But in years when unemployment is extremely low, and clearly we are having labor shortage issues, perhaps we can increase the quota numbers there for the H-1B.”

Aging Workforce and the US Losing its Ability to Attract and Keep Top Talent – Is Immigration Reform a Solution?

The US Census Bureau (USCB) projects that one in every five US residents will be older than age 65, by 2030. Additionally, by 2030 the USCB projects that net international migration will overtake birthrate as the primary driver of population growth in the United States, a first for the US. Accordingly, US will have to rely more on foreign workers as our workforce ages. If the labor shortage continues, the Chamber of Commerce said it’s possible the shortage will pressure lawmakers to act to raise the cap on workers. 

Additionally, bringing in more foreign workers in the US could help boost the economy, as foreign workers tend to be more focused in the service industries and more likely to be of prime workforce age, can fill job shortages and create additional jobs to alleviate the strain on the supply chain. Who wants to live in a country with shortages of basic supplies and poor infrastructure, if they have a choice to live elsewhere?  If lawmakers don’t act, the US risks losing talent and entrepreneurs to other countries that have more flexible immigration policies.

“I think we’re going to see some brain drain from the US to other countries that are perceived as having more favorable immigration systems and policies – for instance, Canada,” Ms. Tang said. Entrepreneurs need workers for their enterprises and have global mobility, and the US’ worker shortage for both service workers and specialized high skilled workers, limits the US’ ability to compete in the world marketplace.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa, Chandler Ford, Jennifer Schaller of The National Law Review / The National Law Forum LLC

For more articles on immigration and hiring, visit the NLR Labor & Employment section.

Disability in the Workplace: The Key to Equal Access and Accommodations

The month of October is designated as National Disability Employment Awareness Month (NDEAM) to educate the public about the issues faced by people with disabilities in pursuing, obtaining, and keeping employment. 

There are approximately 5.5 million employees in the United States who have some type of disability, according to the U.S. Bureau of Labor Statistics, and these employees account for at least 4% of the employed population. It is likely that almost all large employers have had disabled employees at some point in time. This has not always been the case, however. Until the passage of the Americans With Disabilities Act (ADA) in 1990, disabled persons in the United States were often denied employment opportunities. And even today, despite the passage of the ADA, there are millions of individuals with disabilities who cannot find meaningful employment despite their capabilities and skills.

The Rehabilitation Act of 1973 was the first legislation to address the idea of equal access for individuals with disabilities through the removal of architectural, employment, and transportation barriers. But the Rehabilitation Act only reached those businesses and employers who received federal funding — the vast majority of businesses were not impacted by it. But the advances created by the Rehabilitation Act marked the first time that the exclusion and segregation of persons with disabilities was recognized as unlawful discrimination. The Rehabilitation Act recognized that although there are major physical and mental variations in different disabilities, people with disabilities as a group faced similar discrimination in employment, education, and social access.

Thus spurred on by the advances achieved through the Rehabilitation Act, the disability rights community was determined to expand these rights to the larger general population. Their efforts culminated in the signing of the ADA in 1990, which is a watershed event in U.S. history. The ADA is premised on a basic presumption that people with disabilities want to and are capable of working, want to be members of the community, and that the exclusion and segregation of people with disabilities would no longer be tolerated in our society.

Although the ADA reaches many parts of our lives, it has brought profound changes to the workplace. No longer is it legal for employers to refuse to hire applicants with disabilities, terminate employees who becomes disabled, or otherwise treat disabled employees differently than other employees in the terms and conditions of employment. And not only must employers treat disabled employees equally, the ADA requires them to affirmatively accommodate their disabilities in order that the disabled workers can participate equally with other employees in the workplace.

The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The ADA defines a physical impairment as a physiological disorder that affects a body system and a mental impairment as a psychological or mental disorder, such as emotional or mental illness, developmental disorders, and learning disabilities. An impairment that is episodic or in remission, such as cancer or HIV, is a disability if it would substantially limit a major life activity when active. Major life activities include almost everything we do, such as seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Employers are required under the ADA not only to not discriminate against disabled employees but to also provide reasonable accommodations to them so they can perform the essential functions of their jobs. A reasonable accommodation is a modification or adjustment to a job or to the work environment that enables an individual with a disability to have an equal opportunity not only to get a job, but to successfully perform their job tasks to the same extent as people without disabilities. Reasonable accommodations should not be viewed as “special treatment,” and they often benefit all employees. Examples of reasonable accommodations include making existing facilities accessible, job restructuring; part-time or modified work schedules, acquiring or modifying equipment, changing training materials or policies, and providing qualified readers or interpreters. Many job accommodations cost very little and often involve minor changes to a work environment, schedule, or work-related technologies.

Employers should always engage a disabled employee in a discussion to find a mutually acceptable reasonable accommodation that will permit the employee to perform their job but not create an undue hardship on the employer. Although employers do not necessarily have to provide the accommodation requested by the employee, they should take into account the employee’s wishes and attempt to accommodate unless such an accommodation would create an undue hardship. There are as many accommodations as there are individuals with disabilities, and the employer’s responsibility is to make sure they have looked at all reasonable accommodations before deciding that providing an accommodation would be an undue hardship to the employer. The undue hardship standard is very high and should be used very sparingly and only when all other accommodation efforts have been exhausted.

In conclusion, the passage of the Rehabilitation Act and the ADA have provided great benefits to our society and have given opportunities to millions of individuals who in the past would have been unfairly and discriminatorily excluded from the workforce.

This article was written by Debbie Whittle Durban of Nelson Mullins law firm. For more articles about employee accommodation, please visit here.

Eliminating Use of PFAS at Airports May Be Harder Than Congress Thought

Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are subject to increasing environmental regulation and legislation, including legislation to outright ban their use in certain products. Congress directed the Federal Aviation Administration (FAA) to stop requiring PFAS in the foams used to fight certain fires at commercial airports, and to do so by Oct. 4, 2021. In complying with this order, FAA shows the difficult tightrope it has to walk to meet the “intent” of Congress’ directive, while not really meeting the goal Congress had hoped for.

The FAA issued Certification Alert (CertAlert) 21-05, “Part 139 Extinguishing Agent Requirements,” addressing the continued use of aqueous film-forming foam (AFFF) in order to meet the Oct. 4 deadline. In Section 332 of the FAA Reauthorization Act of 2018, Congress directed that after this date, FAA “…shall not require the use of fluorinated chemicals to meet the performance standards referenced in chapter 6 of AC No: 150/5210–6D and acceptable under 139.319(l) of title 14, Code of Federal Regulations.”

The CertAlert directs airports to continue using AFFF with PFAS unless they can demonstrate another means of compliance with the performance standards stablished by the Department of Defense (DoD) for extinguishing fires at commercial airports. The FAA alert also reminds airports about the need to test their firefighting equipment. Airports can perform the required testing by using a device that has been available since 2019 which does not require the discharge of any foam. Finally, the FAA also reminded airports to comply with state and local requirements for management of foam after it has been discharged.

The FAA reported in its communication that it began constructing a research facility in 2014 that was completed in 2019 and that it has been collaborating with DoD in the search for fluorine-free alternatives for AFFF. The FAA reported that it has tested 15 fluorine-free foams and found that none of them meet the strict DoD performance specifications that also are imposed on commercial airports. More specifically, FAA said the tested alternative foams had the following failings:

  • Increased time to extinguish fires
  • Not as effective at preventing a fire from reigniting
  • Not compatible with the existing firefighting equipment at airports

AFFF was developed to fight fuel fires on aircraft carriers where the ability to suppress fires as rapidly as possible and keep them suppressed is vital to the health and safety of pilots, crews, firefighters and the ship. The military specification (commonly known as MilSpec) for effective firefighting foams for fuel fires is in place for both military and civilian airports.  For many years, the consequences of the use of AFFF to fight aircraft fuel fires – most specifically, the adverse impact on groundwater and surface water – was not fully appreciated. Only recently has this threat been understood and only even more recently has the management of firefighting debris been directly addressed.

Congress may have thought it was eliminating a threat with the legislation directing the FAA to no longer require airports to use AFFF. But FAA’s latest messaging on AFFF highlights just how difficult it is to find suitable replacements, especially when they also have to meet the DoD’s stringent performance standards. The FAA did invite any airport, if they identify a replacement foam that meets the performance standards, to share that discovery with the FAA. However, it is unclear what that would accomplish when it is the DoD and not the FAA that certifies a particular foam’s performance.

In essence, FAA could not solve the challenge that Congress gave it (approve a fluorine-free foam) and instead used the CertAlert to approve airports to use such foams if they can find them on their own. The bottom line is that inadequate progress has been made to fulfill congressional intent to stop using AFFF at commercial airports, and airports are left with no choice but to use PFAS containing foams.

There is legislative activity in many states to ban products with PFAS and at the federal level there have been legislative actions targeting the same – like removing them from MREs. The FAA’s removal of its mandate to use AFFF without offering a PFAS-free alternative is a particularly visible example of the challenge in transitioning away from reliance on PFAS chemicals.

© 2021 BARNES & THORNBURG LLP
For more on travel and transportation, visit the NLR Public Services, Infrastructure, Transportation section.

Knock Your Socks Off: A Conversation with EEOC Leaders

Mandatory vaccinations, harassment and retaliation charges, and guidance and enforcement priorities are just some of the important issues U.S. Equal Employment Opportunity Commission (EEOC) officials addressed at Ward and Smith’s Fall Employment Law Update.

I moderated the discussion that was led by Tom Colclough, Deputy District Director of the EEOC Charlotte District Office, and Glory Gervacio Suare, Director of the EEOC Raleigh Area Office.

Over his 25 years with the EEOC, Colclough has investigated charges and complaints of discrimination, led high-performing teams, and served in various leadership positions. Currently, he plays a key role in fulfilling the agency’s mission through strategic enforcement, management, and planning.

Gervacio’s background includes serving as the director of the EEOC’s Honolulu office. Her career with the Commission began as an enforcement investigator in 2001, and she continually provides outreach and educational assistance to various committees in her jurisdiction.

The conversation began with an analysis of how many charges the EEOC handles in an average year, and of those charges, how many go through mediation, conciliation, or litigation. “We normally receive between 65,000 and 100,000 charges per year,” said Colclough. “This year, it was around 65,000. In our district, we received about 5,500 charges this year.”

Of that amount, Colclough explained that the EEOC:

  • Resolved 17.8% of cases through the negotiated settlement process;
  • Completed approximately 500 successful mediations;
  • Issued a ‘no cause’ determination for 65% of cases; and
  • Dismissed around 29% for untimely filing or because a summary review of the Charge allowed the investigator to determine that a violation did not occur.

The leading types of charges last year included retaliation, followed by disability and race. “This is interesting because, in the previous year, race was the second type of charge that was filed,” commented Gervacio. “So I think we’re seeing a trend because of COVID, and with reasonable accommodation requests and vaccination mandates, we’re probably going to see more disability charges in the near future.”

Enforcement Priorities

The local EEOC district office focuses their efforts in part on supporting six national strategic enforcement priorities, says Colclough. These enforcement priorities include:

  • Eliminating barriers in recruitment and hiring;
  • Protecting immigrants, migrants, and other vulnerable workers;
  • Addressing emerging and developing issues;
  • Enforcing equal pay laws;
  • Preserving access to the legal system; and
  • Preventing harassment through systemic enforcement and targeted outreach.

Colclough indicated his district has developed a complement plan to address issues that are important to the local community: “For the most part, we’re looking at vulnerable workers, also emerging issues dealing with the ADA. As you know, COVID is an emerging issue that continues to develop every single day. And retaliation is the number one priority.”

Retaliation goes beyond someone receiving an adverse result after objecting to a form of harassment or discrimination. “There’s more to retaliation than just the mirror opposition or exercising a right to complain,” noted Gervacio. “Disability is on the rise, and there’s a component of retaliation when somebody requests a reasonable accommodation due to their disability.”

COVID Vaccinations

The subject of mask mandates and vaccination requirements is still on employers’ minds and continually evolving. Generally, officials at the EEOC expect to see a substantial increase in COVID-related charges and inquiries pertaining to reasonable accommodations.

For those who watch the news every day, it’s clear that vaccination mandates remain a hot button issue, explained Colclough. “One thing I’d like to folks to know is that, on our website, we clearly state that federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

Gervacio illuminated the subject with an analysis of a recent case involving United Airlines, in which a court order placed a temporary stay on the company’s vaccination mandate. Basically, the judge ordered that placing employees on unpaid leave for requesting an exception to the airline’s vaccination mandate due to a disability or religious exemption is not a reasonable accommodation.

“We are still waiting on guidance from our headquarters on how to address that,” said Gervacio, “so it is unfolding as we speak.”

In light of this development, employers should understand that it is doubtful that placing an individual who requests an exemption to a vaccine mandate on unpaid leave is a reasonable accommodation. Until the EEOC provides updated technical guidance, a potential best practice for employers is to go through an interactive process for all disability and religious-related exemption requests.

Is Long COVID a Disability?

Recently, the EEOC stated that it would be adopting the Department of Health and Human Services position on “long COVID” is to classify it as an ADA disability. The determination ultimately turns on whether or not it substantially limits one or more daily activities.

Employers should educate themselves on what “long COVID” is and its symptoms and understand that since it could potentially be classified as an ADA disability, they should be prepared to engage in an interactive discussion with the employee.

Working from Home

At the pandemic’s start, many employers suddenly had to transition the majority of their workforce to a remote or a virtual environment. With that in mind, the question of which positions are appropriate for telework remains relevant.

Given a choice, many employees would choose to work from home, but that may not be in the employer’s best interest. “Telework as a reasonable accommodation “might be the gold Cadillac standard of what an individual wants,” explained Colclough, “but that’s not necessarily what the employer has to provide.” Employers only need to consider whether an accommodation allows the individual to perform the essential job functions.

“Telework is just one of many tools of accommodation an employer has in their toolkit,” adds Colclough. Employers may sometimes feel that the employee is driving the interactive process and that they have to comply with the employee’s preferred accommodation.

Ultimately, however, it is up to the employer to decide what accommodations are reasonable based on the needs of the business and what will allow the employee to perform the essential job functions. Employers have various options for those who are averse to getting the vaccine, whether their request for an exception is ADA-related or due to a religious exemption. As far as reasonable accommodations, the following are listed on the EEOC’s website as technical guidance on potential reasonable accommodations to vaccine mandates:

  • Social distancing, e., placing an individual in their own office;
  • Modifying shifts to limit interactions with other employees and customers;
  • Periodic testing; and
  • Reassignment.

Gervacio pointed out that “[t]here are many examples of reasonable accommodation listed on the Job Accommodation Network. This service provided by the U.S. Department of Labor’s Office of Disability Employment Policy offers technical guidance on various types of accommodations for certain disabilities, including specific COVID-related issues from telework.”

An unexpected outcome the EEOC has seen after the rise of telework is an increased number of sexual harassment complaints over the past 18 months. These complaints have originated from Zoom meetings, Facebook, and other forms of social media.

Employers should consider developing standards for how employees are expected to behave in a virtual environment, advised Colclough. “We’ve got to convince people to get back to being as professional as they were in person,” he said. “And perhaps that will help some harassment complaints go down.”

Gervacio recommended that employers train their managers and supervisors. “A lot of the charges we get, it seems the manager or supervisor is not aware of their roles and responsibilities, and whether or not they need to take action,” commented Gervacio. “This training should be tailored to the workforce because you want them to be engaged.”

Another update the EEOC leaders mentioned included a change to the notice of right to sue. When the EEOC decides to close an investigation, it issues what is commonly referred to as a notice of right to sue, which allows the charging party to file a federal lawsuit if they want to pursue the claim further.

Finally, the EEOC leaders shared that recently, the regulations were amended to make digital service an acceptable form of communication for this notice. “Doing it digitally is much, much faster,” added Colclough, “and we get an almost instantaneous notice when parties take a look at it. This helps us ensure the right to sue got into the right hands.”

© 2021 Ward and Smith, P.A.. All Rights Reserved.

Article By Hayley R. Wells of Ward and Smith, P.A.

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

How COVID-19 is Impacting Global Supply Chains & How Companies Can Cope

Despite the positive impacts of ongoing safety measures and the development of effective vaccines, global supply chains are continuing to face unprecedented logistical challenges because of the COVID-19 pandemic. Since the emergence of the coronavirus in early 2020, supply chains across the world drastically slowed down for a variety of reasons, including but not limited to disrupted shipping lanes, labor and material shortages and fluctuating demand. Every sector of the economy is affected to some degree, most notably the automotive, tech and medical supply industries.

Global markets face many unknowns as the supply chain returns to normal. The impacts of COVID-19 are far reaching, and it is difficult to determine precisely how long the disruptions will last. Further, late deliveries or no supplies of materials or labor presents a number of legal implications, and many companies affected by the disruptions are looking for guidance on how to proceed.

How Has COVID-19 Impacted the Global Supply Chain? 

According to the Bureau of Labor Statistics (BLS), 4.3 million U.S. workers left their jobs as of August 2021. This 3 percent decrease in the U.S. work force is especially impacting the supply of truckers and warehouse workers which particularly impacts the supply chain. As variants of COVID-19 continue to spread throughout the globe, vaccine mandates and required coronavirus testing leaves employers scrambling to stay compliant amidst being short staffed. These actions are also occurring after a year-long closure of major manufacturers all over the world.

Even with President Biden’s Executive Order 14005, which aims to strengthen domestic supply chains, issues with cybersecurity and labor resignations continue to cause bottlenecks at U.S. ports. Without the necessary workforce to transport goods across the U.S., some ports are facing an 80 percent increase in congestion. As the global supply chain grows more chaotic, President Biden met with officials last Wednesday to discuss the nationwide supply chain bottlenecks, announcing that the Port of Los Angeles will begin operating 24 hours a day, seven days a week to help deal with the bottlenecks. Additionally, major retailers such as Walmart and Target committed to increasing shipping operations during off-hours, with logistics companies FedEx & UPS making a similar pledge.

“In my 40 years of living and working in Southern California, I have never seen container ships off the coast of Malibu, and yet there they are, because there is no more room for them in the parking lots that are the ports of LA and Long Beach,” said Brad Hughes, Member of the Transportation & Logistics Practice at Clark Hill PLC.

How Long Will COVID-19 Supply Chain Disruptions Last? 

It remains to be seen precisely how long the effects of COVID-19 will be felt on supply chains. In many cases, the answer is industry-specific since different industries rely on the global supply chain in different ways. However, in general, it does appear that the problem is unlikely to be resolved before the end of 2021.

“Unfortunately, the supply chain problem is not likely to be resolved before Christmas,” said Mark Andrews, Senior Counsel and member of the Transportation & Logistics Practice at Clark Hill PLC. “There are many grinches involved, from port bottlenecks, driver and truck shortages, to high freight costs and tariffs. These are compounding problems that need simultaneous attention but will take different times to resolve.”

Industries reliant on highly specific, specialized goods, such as semiconductors or rare earth metals, face a particularly long return to normal. Over 60 percent of businesses in the manufacturing industry reported domestic supplier shortages, followed closely by construction companies at just under 60 percent.

“While many project with cautious optimism a mid-2022 chip supply recovery, we do anticipate other supply chain woes well into late-2022,” said Scott Hill, Executive Partner and member of the Corporate Practice Team at Varnum LLP. “Supplies of raw materials such as resin, aluminum, and steel have become unreliable in this volatile market. Long lead times and increased prices for raw materials, especially in the auto space, are projected which will cause significant disruption when a full restart is demanded. Those who have the ability to order materials now will be better positioned to sell to the market.”

How Can Companies Handle COVID-19 Supply Chain Disruptions? 

The supply chain disruptions brought on by the COVID-19 pandemic have wide reaching legal implications, specifically the web of state and federal laws surrounding transportation.

“I would identify uniformity of federal and state transportation law as a badly needed element of ‘legal infrastructure’ to reduce transportation costs and delays,” Mr. Andrews said. “Examples include driver hours, worker classification and up-supply-chain liability for ‘negligent selection’ of motor carriers involved in traffic accidents.”

With there being no signs of the supply chain disruptions ending anytime soon, companies can take steps to manage their supply chain operations. Potential solutions include moving from a sole-source supply chain to a multi-source supply chain, according to Varnum’s Mr. Hill.

“Since the onset of the pandemic, we have worked closely with our clients to optimize their supply chain, whether they were operating under sole-source or multi-sourcing strategies. As you may imagine, multi-sourcing and on-shoring to the extent possible has been particularly important with bottlenecks in the chain across the globe,” he said.

Another consideration for companies experiencing supply chain disruptions is handling claims of delayed delivery, specifically for those in the automotive supplier industry. Mr. Hill said his clients are working daily to remedy automotive industry supply chain issues to ensure expectations are met.

“Many of our clients are in the automotive supplier space and the semiconductor shortage continues to warrant attention and necessitates daily if not hourly conversations up and down the chain to reflect good faith efforts to deliver under the terms of supply agreements,” he said.

Currently, federal agencies and the Biden Administration are responding to supply chain issues, specifically through President Biden’s executive order. The order addresses many of the issues facing supply chains right now, including directing heads of federal agencies to conduct a one-year review on supply chain vulnerabilities.

Conclusion

Even though many of the challenges presented by the supply chain disruptions are ongoing, the announcement from the Biden Administration that ports and retailers are committing to increasing operations to deal with supply chain issues may help ease some of the strain. Additionally, companies can expect more regulatory actions to come later in the year from other agencies.

“Federal agencies are actively undertaking a range of actions in response to recent executive orders and other presidential direction on the nation’s supply chain issues,” said Anthony Campau, Counsel and Director of Government Regulation for Clark Hill.

“Some of those measures are already public, but more detail will likely become visible this fall when the Office of Information and Regulatory Affairs (OIRA) releases the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions, which will list all regulatory actions currently under development at federal agencies. That publication should offer a helpful window into planned regulatory responses to the nation’s supply chain woes,” he said.

Copyright ©2021 National Law Forum, LLC

For more articles on supply chain, visit the NLR Antitrust & Trade Regulation section.

Oh the Horror: No Work for Hire in Friday the 13th Screenplay

The US Court of Appeals for the Second Circuit affirmed a summary judgment grant, ruling that an author was an independent contractor when writing the screenplay for a horror film and entitled to authorship rights, and therefore entitled to exercise his copyright § 203 termination right. Horror Inc. v. Miller, Case No. 18-3123 (2d Cir. Sept. 30, 2021) (Carney, J.)

Victor Miller is an author who has written numerous novels, screenplays and teleplays. Sean Cunningham is a producer, director and writer of feature films and is the general partner of Manny Company. Miller and Cunningham were close friends who began working together around 1976 and collaborated on five motion pictures in their first five years working together. Miller was a member of the Writers Guild of America, East (WGA) and was a signatory of their Minimum Basic Agreement (MBA), which was the collective bargaining agreement at the time.

In 1979, the success of the horror film Halloween inspired Cunningham to produce a horror film. Cunningham reached out to Miller and they orally agreed that Miller would write the screenplay for their upcoming project. The two came to an agreement using the WGA standard form. Miller then began developing the screenplay and the two worked closely together in discussing ideas for the film. Miller picked his working hours but was responsible for completing drafts based on the production schedule of the film. Cunningham had no right to assign additional works to Miller beyond the screenplay.

The dispute concerns whether, for Copyright Act purposes, Miller was an employee or independent contractor of Manny Company, of which Cunningham was the general partner. Cunningham argued that he taught Miller the key elements of a successful horror film, that he gave significant contributions and that he had final authority over what ended up in the screenplay. Miller agreed that Cunningham gave notes but stated that Cunningham never dictated what he wrote. The parties agreed that Cunningham did provide the ideas for making the movie killings “personal,” that the killer remain masked and that they kill a major character early. Miller received “sole ‘written by’ credit” as the screenwriter.

Horror Inc. (successor to Georgetown Horror) financed the project and was given complete control over the screenplay and film. Manny assigned its rights in the film and screenplay to Horror, which registered the copyrights. In the registration, Horror was listed as the film’s work made for hire author with a credit given to Miller for the screenplay. The initial film was a huge hit and has spawned 11 sequels.

In 2016, Miller attempted to reclaim his copyright ownership by invoking his termination rights under 17 U.S.C. § 203 and served notices of termination to Manny and Horror. The two responded by suing Miller and seeking a declaration that the screenplay was a “work for hire,” and therefore Miller could not give a valid termination notice. The district court granted summary judgment to Miller, stating that Miller was the author as he did not prepare the screenplay as a work for hire and that Miller’s termination notice was not untimely. Manny and Horror appealed.

In its de novo review, the Second Circuit considered the district court’s determination as to whether Miller was an employee or an independent contractor based on its balancing of the 13 factors established by the Supreme Court in its 1987 ruling in Community for Creative Non-Violence v. Reid. Because a “work made for hire” is a statutory exception to the general rule of author ownership of a copyright, the party claiming the exception bears the burden of proving that the exception applies.

Manny and Horror argued that the screenplay was a work for hire as Miller was an employee under his WGA membership, that the district court erred for not considering the WGA collective bargaining agreement within the Reid factors and that the court incorrectly balanced the Reid factors by not giving more weight to Miller’s membership in the WGA or his collective bargaining agreement.

The Second Circuit found that Miller was not an employee, explaining that a finding of employment status for copyright claims is determined under copyright law and not labor law. The Court determined that Miller’s employment status under the National Labor Relations Act (NLRA) and the terms of his membership in the WGA do not remove the determination of employment status under the Copyright Act and principles of agency. The Court found that the district court correctly declined to consider NLRA arguments and was correct to focus on common law principles and the Reid factors.

After finding that the WGA membership was not dispositive, the Second Circuit determined that the WGA collective bargaining agreement should not be considered as an additional Reid factor. The Court found that although Miller’s WGA membership could play a role in how the relationship between the parties played out, membership itself would not alter the Reid factors analysis.

The Second Circuit approved the district court’s application of the Reid factors and its refusal to accord “great weight” to Miller’s union membership. Rather, the Court rejected the proposition that the WGA membership should be given “great weight,” explaining that the membership was not to be treated as a separate factor and that union membership was relevant only to the extent it played into the analysis of the Reid factors. Ultimately, the Court concluded that Miller was an independent contractor and had sufficiently rebutted the statutory presumption given to Georgetown’s copyright registration listing the work as for hire.

© 2021 McDermott Will & Emery

Article By Joshua Revilla of McDermott Will & Emery

For more articles on IP law, visit the NLR Intellectual Property section.

 

Consequences of Brexit: Not to Be Underestimated

After the fuel shortages, will there be a shortage of mineral water in UK restaurants…?

In July, the UK made it clear that no EU mineral waters can be exported to the UK from January 7, 2022, unless the UK authorities grant formal approval to do so in the coming months. (The decision does not apply to exports marketed exclusively in Northern Ireland). Brands such as Evian and San Pellegrino would be affected if the UK doesn’t give approval.

If no approval is passed in the UK, the EU will almost certainly hope to adopt an equivalent measure of non-recognition of the UK’s natural mineral waters previously marketed within the EU.

© 2021 Keller and Heckman LLP

Article By Food and Drug Law at Keller and Heckman

For more articles on Brexit, visit the NLRGlobal section.

Legal Implications of Blockchain in Supply Chain: What’s Law Got to Do With It?

Blockchain in Supply Chain: Article 6

The advent of new technology brings along with it the murkiness of how the American legal system will treat such technology.  Before the rise of blockchain for instance, businesses were uncertain how courts would treat electronic records and signatures until the federal legislature enacted the E-Sign Act on June 30, 2000.1 To provide even more clarity to businesses, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Electronic Transactions Act (the “UETA”)2 to provide states with a framework to enact laws governing the enforceability of electronic records and signatures.  Now, almost every state in the U.S. has adopted some form of the UETA,3 and industry heavily relies on electronic contracting.

The legislative process has already begun for blockchain technology. Arizona and Tennessee both enacted laws stating that (1) a blockchain technology signature is considered an electronic signature, and (2) a blockchain technology record is considered an electronic record.  Further, these laws say that courts may not deny a contract legal validity because the contract contains a “smart contract” term.4  Other states are also attempting to adapt their current commercial laws to blockchain technologies.  Wyoming, for example, is breaking ground by addressing blockchain’s impact on the attachment, perfection, and priority rules of Article 9 of the Uniform Commercial Code.5  Similarly, Delaware and Maryland have amended their general corporation and limited liability company laws to permit the use of blockchain technologies for creating and maintaining company records with respect to equity interests.6

Beyond when and how legislatures and courts will solidify blockchain technology as a valid platform for contracting, there are other possible legal questions and ramifications for the use of blockchain in the supply chain. Some possible areas of legal considerations follow below.

Potential Modifications to Contract Terms in Supply Agreements

As companies begin to implement blockchain solutions, drafters should give thought as to what contract terms to adjust in supply agreements and other commercial contracts related to the use of blockchain in the supply chain.  Some potential modifications to consider follow:

Blockchain Governance

Parties to a supply agreement will need to decide whether a supply agreement should detail which transactions can (or must) occur on the blockchain, or whether the parties should set forth which transactions should occur on the blockchain in a separate agreement governing the implementation, governance, funding and maintenance of the supply chain blockchain. Flexibility will be important as blockchain technology continues to evolve and becomes more prevalent, so it may be most practical for both parties to execute an addendum listing transactions that the parties can agree to update.

Requirements on Suppliers and Sub-suppliers

A buyer may consider whether it would be beneficial to contractually require its suppliers to join the buyer’s supply chain blockchain.  A buyer could take this approach a step further and extend it to sub-suppliers as well. A contract could require both the supplier and its suppliers to join the buyer’s supply chain blockchain, which would provide the buyer a deeper visibility into its supply chain. For smaller suppliers and sub-suppliers, the ability to keep up and participate in this evolving area may present a challenge that impacts their ability to compete for certain business.

Confidentiality

With multiple member blockchains, the parties may want to explicitly state whether or not a receiving party adding certain confidential information of a disclosing party to the blockchain would be considered a permitted disclosure by the receiving party.  The parties must also consider the contract’s provisions on removal and return of confidential information at the end of a contract with the immutability of blockchain in mind.

Purchase Orders and Payment Terms

If a buyer must place purchase orders or releases through the blockchain system, the parties will need to revise the ordering mechanism of the contract to reflect this process.  Additionally, if the parties plan to handle payment by blockchain smart contracts, the parties will need to revise the traditional approach of invoicing after shipment and paying within a certain period to account for the terms of any smart contract.

Product Acceptance

If the buyer will make payment automatically via smart contract at the time of product acceptance, the supply agreement should be very precise as to when product acceptance occurs.

Indexing and Shipping Costs

Many supply chain contracts use some form of indexing for raw materials or other cost inputs to adjust pricing periodically. Blockchain has the potential to significantly streamline this process by allowing parties to modify contract pricing that is linked to an index faster and easier by using a smart contract to rewrite the new price to the ledger and automatically update payments via blockchain based on the new contract pricing. Although traditionally raw materials have been the focus of indexing provisions, given the recent massive fluctuations in freight and container costs, contracting parties can share risk for fluctuating shipping costs by indexing through blockchain technology as well.

Force Majeure

When drafting force majeure provisions, the parties may want to explicitly define whether issues with the blockchain such as smart contract malfunction or compromise of a party’s access to the blockchain would be considered a force majeure event that can be relied upon by a party to excuse from performance under the contract. In most cases, parties may want to align this issue with whether existing language covers IT system issues.  If such issues are included as force majeure events, the parties should consider adding a threshold requirement that a party cannot claim force majeure for issues resulting from the party’s own failure to maintain industry-appropriate protective measures.

Effect of Termination

In the event of termination of a supply agreement, the parties will want to explicitly set forth any requirements to unwind the blockchain or terminate the related smart contracts. Alternatively, the effect of termination provisions could point to a separately executed agreement specifically dedicated to blockchain governance which would cover the rights and responsibilities of the parties if the supply agreement dictates the parties must unwind the blockchain.

Conflicts

In the resolving conflicts section of the supply agreement, which provides the order of precedence of contract terms in the event of conflicting language, the parties should detail how to resolve a conflict between a coded smart contract or other blockchain terms and conditions and the text of the supply agreement.

Entire Agreement

When drafting the entire agreement section of a supply agreement, the parties will want to identify what, if any, terms and conditions set forth in the applicable blockchain network are part of the agreement between the parties and then provide that all other terms are not part of the agreement.

Service Level Credits

For logistics agreements, the parties may want to define key performance indicators (KPIs) or service level agreements (SLAs) based on data from the blockchain, because that data is considered trusted.  For instance, the parties could define processing time to receive inventory to a warehouse (i.e. “dock-to-stock” time) as the difference between the date and time of receipt of product at the warehouse and the date and time of stock of product in the warehouse, in each case, based on the data uploaded by any applicable IoT device to the supply chain blockchain.

Data Privacy Considerations for Blockchain

While blockchain is considered a highly secure means of data storage, paradoxically, some of blockchain’s other attributes (being decentralized and immutable), pose a compliance barrier with many data privacy regulations, such as the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.105) (“CCPA”) and the EU’s General Data Protection Regulation (“GDPR”).

Blockchain’s decentralized platform makes it tricky to determine which privacy laws apply.  The nature of a decentralized platform permits processing of an individual’s information in any number of locations around the world, because an individual’s personal data (such as a person’s full name, social security number, or email address) could be located on different nodes, each of which could exist in a different jurisdiction.  As each jurisdiction regulates the processing of personal data differently, attempting to manage the plethora of privacy laws, some of which may conflict with others, could be a daunting, if not impossible and cost-prohibitive effort.

The immutable nature of blockchain also poses a potential issue for data privacy.  For instance, Article 17 of the GDPR as well as the CCPA set forth the “right to be forgotten.”  The GDPR and CCPA require that processors of personal data erase the personal data of a person under certain circumstances, including if the person withdraws consent for the processing of their personal data.7

Because of the decentralized and immutable nature of blockchains, some potential approaches to handling personal data related to transactions on the blockchain are to store the personal data completely off the blockchain, or store only a hash of the personal data (a one-way mathematic function that represents the personal data, but from which the personal data cannot be determined) on the blockchain while storing the actual data on a private encrypted database.  Taking another approach, programmers could write smart contracts to allow for the revocation of access rights or deletion of information on the blockchain.8  Companies would have to customize any supply chain blockchain solution for data privacy compliance issues based on what personal data will be stored, what jurisdictions the data will be stored in, and the nature of the related blockchain concept.

Blockchain Hash Creation

Smart Contracts

Smart contracts are not necessarily contracts in the traditional sense.  Rather, a smart contract is a computer program stored on a blockchain that performs an action when triggered by an event. Smart contracts take the agreement of two adverse parties to the next level.  When two parties execute a traditional written agreement, they are promising to act in accordance in that agreement.  When two parties implement a smart contract, it is not a mere promise; they have already effected an outcome.

As previously discussed, certain states such as Arizona and Tennessee have laid the groundwork for courts to enforce smart contracts.  If blockchain continues to become more prevalent in business, the need for decisive regulations will pressure other states to follow suit and address smart contracts through legislation.

See Article 5 of this “Blockchain in Supply Chain” series for more information on smart contracts.

Antitrust Considerations for Blockchain

Blockchain provides an avenue for competitors to cooperate, particularly in a consortium or other permissioned structure.  As with any collaboration or joint venture among competitors, such collaboration raises potential antitrust risks and can create a slippery slope to claims of collusion and anticompetitive exclusionary conduct, among other anticompetitive practices.

For most blockchain collaborations among actual or potential competitors, the greatest practical antitrust risk involves collusion and implicates Section 1 of the Sherman Act.9  Section 1 prohibits agreements that unreasonably restrain trade, such as agreements among competitors to fix prices, rig bids or allocate customers or markets.  Oftentimes, courts can infer such anticompetitive agreements based on the exchange of competitively sensitive information among the participants.  Blockchain participants therefore must be mindful of the heightened antitrust risks that come into play should the blockchain arrangement involve the sharing of competitively sensitive information, such as pricing, costs, output or customer specific information.

To minimize this antitrust risk, particularly in a blockchain consortium involving competitors, participants should either avoid the exchange of competitively sensitive information altogether or narrowly tailor the information exchanged and adopt other appropriate safeguards where reasonable. Safeguards to consider include setting up permissions so that only intended recipients of data have access to a block of information and adopting read permission restrictions to prevent employees who have responsibility over pricing, marketing, strategy and competitively important strategic decisions from accessing competitively sensitive information shared on the blockchain.  Aggregating or anonymizing sensitive data or limiting the information exchange to historical information only (instead of current or future data) could also minimize the antitrust risks associated with any information exchange that is necessary to the blockchain arrangement. In any event, participants in a blockchain arrangement should be prepared to articulate why the participants need to exchange the specified type or level of information to achieve pro-competitive benefits of the blockchain arrangement.

Consortium blockchain participants may also face antitrust liability under Section 1 if they reach an agreement to exclude competitors from the blockchain collaboration where accessing a blockchain has become essential to doing business in a particular market or industry. Participants should document and consistently enforce well-defined and reasonable criteria for membership.  Participants should also exercise additional caution in restricting membership if development of the blockchain technology or any related applications involve standard-setting or the adoption of standard, essential patents, both of which present unique antitrust risks.

Relatedly, antitrust scrutiny may also extend to the way in which consortium members approve transactions.  Nodes (or members of the supply chain) validate transactions to be added to a blockchain in accordance with certain pre-determined validation rules.  Then, nodes only add transactions to a blockchain if the rules for adding a block to the blockchain are satisfied (“consensus”).  Antitrust risk can increase where these consensus mechanisms prioritize clearance of transactions by certain members or decline to validate transactions by particular parties without a legitimate and objective basis for doing so. Participants should ensure the validation and consensus mechanisms use objective criteria and that no single participant controls these processes.

In addition to the most prevalent antitrust risks highlighted above, participants should consider other potential antitrust complications when forming or participating in a collaboration with competitors to develop blockchain technology and related applications.  Participants should be mindful of these risks and consult antitrust counsel early in the process as they harness the benefits of blockchain technology to meet their supply chain needs.

1The Electronic Signatures in Global and National Commerce Act (E-Sign Act), FDIC Consumer Compliance Examination Manual – January 2014

2 Final Act, With Comments: Uniform Electronic Transactions Act (1999), Uniform Law Commission (last retrieved on September 8, 2021)

3 Uniform Electronic Transactions Act (UETA), Practical Law (last retrieved July 22, 2021)

4 ARS § 44-7061; TN Code § 47-10-202

5 Wyoming’s Digital Assets Amendments: Marked Out or Missed Out? A Review of Recent Amendments to Article 9 of the Wyoming UCC, American Bar Association (October 1, 2019)

6 Id.

7 Art. 17 GDPR and Cal. Civ. Code § 1798.105

8 GDPR & Blockchain: At the Intersection of Data Privacy and Technology, BDP (Iast retrieved July 22, 2021)

9 15 U.S.C. § 1

Co-authored by Vanessa L. Miller. Aaron K. Tantleff. Peter Vogel. Eugenia Wang. Kathleen E. Wegrzyn.

© 2021 Foley & Lardner LLP

Legal Marketing Budgets with Good2BSocial [PODCAST]

Rachel and Jessica meet with Guy Alvarez, founder and CEO of Good2BSocial, to review legal marketing budget changes since the beginning of the COVID-19 pandemic.

Please read on below for a transcript of our conversation, transcribed through artificial intelligence.

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, legal marketing, SEO, law firm best practices, and more.

Rachel

So my name is Rachel, a web content specialist for the National Law Review.

Jessica

And my name is Jessica and I do about the same.

Rachel

In this episode, we’ll be taking a look at legal marketing budgeting post COVID-19, with Guy Alvarez, founder and CEO of Good2bSocial. Would you like to tell our listeners a little bit about yourself?

Guy

Sure, Rachel. So as you said, my name is Guy Alvarez. I am a former practicing attorney. And currently I am the founder and chief engagement officer at Good2bSocial. Good2bSocialis a digital marketing agency that specializes in the legal industry. And basically what we do is we help our clients, law firms, as well as legal vendors and others, to leverage digital technology to accomplish their business objectives.

Jessica

We’ve worked with you guys before just on various things. So this is great, we get to have you in here and talk to you today. I’m excited, I’m excited to get started. Some things that are on legal marketers’ mind at this point with the covid 19 pandemic, hopefully coming to a close, what is the way they can handle their marketing budget? How has the pandemic affected the budgeting?

Guy

A great question, Jessica. And that’s a question I get a lot from both small firms as well as large law firms. So obviously, what’s changed significantly with COVID is the inability to really see other people in person, right. So a lot of firms in the past have dedicated their marketing budget, a lot of it has gone into conferences, or trade shows, or live events. And obviously, for the most part, those things aren’t happening today. Or if they’re happening, they’re happening in a very limited way. Also, people don’t really like to travel or travel as much. So that’s also made an impact in terms of their marketing budget, from the business development side. A lot of budget in the past has gone to client entertainment, right? So lawyers taking out clients dinners, or sporting events or theater or things like that. And those things aren’t happening either. So what we’re seeing is really a shift in terms of budget from the real world into the virtual world. And as a result, we’re seeing law firms spend a lot of their budget on digital marketing, right ways that they can enhance their website, ways that they can communicate to their clients and prospects, their knowledge, their experience, and basically stay top of mind and develop strategic relationships. So we’ve seen a lot of investment into webinars, it looks like almost every law firm is doing webinars these days, law firms are spending money on and creating podcasts like this one. So we’re working with a lot of firms who have decided to create one or more podcasts and they want to put it out. And then also firms are spending money on online advertising. More and more firms are struggling to take a dip into online advertising, whether that is paid social media like LinkedIn, and Facebook and Instagram, as well as Google ads and other forms of online advertising.

Jess

How much in general should a law firm look to spend on their marketing budget?

Guy

Great question. Historically, we have seen firms spend somewhere between two to 3% of their overall marketing budget on marketing activities. What we’re seeing now is firms are investing more closer to five to 6%. And the reason for that is because beat they don’t have the ability to get in front of their clients in person. So they’re looking to spend money to get in front of their clients through digital means.

Jess

That seems kind of interesting, especially since it’s shifting to online versus in person. Is that normal that it would double even though it’s digital now instead of you know, the wining and dining that hadn’t before?

Guy

Unfortunately, I feel like a lot of firms don’t know what they’re doing. So they’re wasting a lot of money, right? They’re spending money on advertising online without really understanding how to do it. So I’ll give you a perfect example. A lot of firms, especially corporate law firms right now are experimenting with LinkedIn advertising because LinkedIn is a great way to get in front of a professional audience. If you go to LinkedIn or if you talk to the LinkedIn sales people, they’ll basically tell you to spend as much as you possibly can, so that you can reach your target audience. So let’s say, let’s say you’re trying to reach in House counsel in the state of California, right? Let’s say you have a firm, and you really want to reach in House Counsel, and you go to LinkedIn, and LinkedIn will give you a recommended budget of between, let’s say, eight, and $20 per click, you know, that’s what they want you to bid, right. And so if you talk to LinkedIn, they’ll say, Oh, well, in this case, you should fit the $20. That way, you can make sure that your ad is going to be seen by your target audience. But the reality is, it doesn’t really work that way. Sure, if you’re going to bid more money, there is a possibility that more people will see it. But that’s not necessarily the case, you could bid less money. And if you have a really good offer, or a really good ad or post, people aren’t going to click on it, and then more and more people aren’t going to see it. It’s the same as if like, let’s say you went to an art auction, right? And someone’s was auctioning a painting. And the auctioneer said, Okay, we’re going to start the auctioning at $1,000 for this painting. And you raise your hand and you say, you know, a million dollars? Well, why would you do that? What you don’t know yet, you know, maybe you put it in for $2,000 $3,000 $10,000. So that’s why firms are spending money, but they’re not spending it in a productive, efficient manner. And part of the reason for that is that they’re just not familiar with how paid LinkedIn or other forms of advertising online, really work. And so that’s why we’re seeing more and more money spent, but not necessarily the most efficient type of spending.

Jess

So this is kind of a good Segway into my next question that I had. So how do firms know how to spend for a new law firm versus an established one?  A new law firm probably isn’t going to have the necessary background and know how to spend their money wisely.

Guy

So there’s two ways that you can, you know, make sure that you’re doing the best you can. One is you can hire an agency like ours, who has experience and knowledge and knows what they’re doing and has done it a billion times. Or you can train your team, right? invest in training, invest in getting them up to speed, so that when, when they’re doing it, they know what they’re doing.

Jess

I’m not surprised to hear that from you. I’m sure how many people you work with,they need help knowing how to budget. And that’s great, because that’s what you guys are there for to help guide them through that.

Guy

Yeah, and they could spend a little bit of money with us managing it, but at the end of the day, they’re getting a much better bang for their buck, because they’re not wasting a ton of money. I’ll give you another example. I see a lot of law firms that are doing Google advertising. And Google advertising can be really expensive, right? But what they’re doing is when they create the ad, they’re linking their ad back to their websites. And that’s a big No, no, you don’t want to link an ad back to your website, you want to link the ad to a landing page, where the visitor really has the option of either filling out a form or picking up the phone. If you’re sending them back to your website, they might forget why they thought there, they might start to explore other things. And all of a sudden, you wasted a ton of money, and you’re not getting the results that you wanted. So that’s just another simple example, of firms not knowing how to spend their money and spending their money in a non efficient way.

Rachel

So to sort of go off of that, we’ve spoken a little bit about how law firms should allocate their budget, and how they can best use their marketing dollars. But I was wondering if you could talk a little bit about what are the most important areas to focus on right now in terms of legal marketing spend.

Guy

Or so as I said, a lot of the money that used to go to trade shows conferences, sponsorships, you know, it’s not being spent anymore, because, you know, people aren’t going to real world events. So from my perspective, the best way to spend money is to give your audience your target audience and it could be either existing clients or new potential clients is to communicate to them the knowledge and the experience that your firm and that your attorneys have. And that’s why content is so important. Right, a lot of firms I know are like, Oh, you know, we want to improve our search engine visibility, we want to, you know, but they don’t understand that the only way to do that is by creating really good, valuable content. That’s the number one priority. Same thing with social media, if you’re not creating client centric, valuable thought leadership content, you’re not going to have a very successful social media strategy. So really, the focus should be first and foremost, on creating that really great content. And the way to do that is to really understand what your audience is interested in. They’re not necessarily interested in your awards, or your new hires or your qualifications, sure, that matters to them down the road. But right now, what they’re most interested in is, what their business and the problems or issues that they’re facing. So the more that you can put yourself in the shoes of your clients or your prospects, and create content that’s going to be really valuable and interesting to them, the more you’re going to have success from a marketing perspective. So I think first and foremost, the investment should be around client centric, thought leadership content. That’s number one. Number two, is I think you need to invest in a way to measure everything you’re doing, right? If I’m spending a ton of money, and then I asked you, well, you know, how are you doing? What are you getting out of it? And you don’t have an answer, then how can you possibly improve on what you’re doing? So you need the tools and technology to properly measure the effectiveness of your legal marketing? expenditures. And a lot of firms don’t have that, right. Some firms might measure and say, Oh, yeah, we look at Google Analytics. And I said, Great, well, what do you do after that? What do you do with the data? We send it to our lawyers, okay. And then what happens? Nothing happens. So if all you’re doing is looking at data, and not analyzing it, and not coming out with some meaningful insights out of it, then you’re not really gaining much. So you need to invest in technology. And in people that understand what’s working, what’s not working, and what you can do to adapt or change so that you can get the results that you want.

Rachel

We talked a little bit about measuring ROI and measuring how these campaigns are performing. What metrics should they be paying attention to? And how can they really get started?

Guy

That’s a great, great question, right? A lot of times, I speak to marketers, and they’re really frustrated, cuz they say to me, God, you know, we just got, you know, 1000 new followers on LinkedIn, or we just got 20 new likes on Facebook, or we just improved our traffic, we’re getting now 2000 unique visitors to our website. But the lawyers don’t care, right. And the reason the lawyers don’t care is you need to be able to tie your metrics to actual business objectives, right? lawyers don’t care how many likes or follows or shares are bought, they don’t care. They care about, did we get any new business? Or were we mentioned in an article or publication, or you know that we get a new speaking opportunity? So you need to closely tie your digital metrics into real business objectives? In order to really be able to quantify, yes, we did this invested investment, and this is what resulted out of it. And I’ll give you another example. So as I said earlier, a lot of firms, especially over COVID, you know, have invested heavily on webinars, it looks like every firm was doing a webinar almost every day. But if you ask most of them, you know, what did you do after the webinar? How did you follow up, most of them may be sent out an email, thanking everyone. And that’s it. So now you spent all this time, effort and money in creating a webinar, and you did nothing to follow up. And so that is the types of things you need to do is make sure that you’re not only investing in the creation, but also measuring the execution afterwards and have a plan for how you’re going to be able to turn website or webinar visitors or registrations into potential clients.

Jess

That’s interesting. So that long game of follow up, is that one of the ways these firms can make sure that they’re getting the desired ROI Is that just one of the techniques? or What else could they implement?

Guy

Yeah, that that’s a very important technique, right? Because one of the things I tell law firms is, don’t think about it just because you weren’t you attend a webinar, it doesn’t necessarily mean you’re ready to hire someone, you know, you might just be interested in the topic, or maybe your boss has asked you about it, but they may not be ready to hire you. So you have to invest in the long term. And you got to make sure that okay, we did the way when it was about 100 registrations, and out of those 100 registrations 50 people showed up. So now you’re gonna have to have a strategy for those people that showed up, you should have a strategy for the people that didn’t show up. And what you want to do is you want to stay top of mind, so that when the timing is right, when they actually have the need, they’re going to be like, Oh, yes, this firm, that they continue to email me about this topic, they certainly know what they’re doing. Let me reach out to them. Right. So that is, that is definitely one of the ways to do that. The other thing is, you need to be able to repurpose your content, right? There is a process called cope, which talks about create once publish everywhere, right? What that means is for every piece of content you create, you should find a way to repurpose it. So if we’re doing this podcast right now, maybe we can take the transcript of the podcast and create a blog post. And maybe since we’re doing a podcast and a video, now we can chop up this video into little segments. And maybe out of that you can have, you know, 2030 different social media posts. So again, it’s really about how you’re investing in the content creation, find a way to repurpose it, because the other thing is, everyone likes to consume content in a different way. Some people like to read, some people like to listen to podcasts, other people like to watch videos, other people like to look at infographics. So you should be able to repurpose that content in as many different ways as possible, so that people can consume it in whatever way they choose to consume.

The follow up part seems to be just like an industry thing. I think they’re trying to pump out as much content, especially being new to webinars, I’m sure they’re just cranking those out doing a webinar series and not thinking about, well, how do we stay on people’s minds, the content is valuable, right, because the people go to the webinar to gain insight on that topic that they’re interested in. But once they leave, that has now no longer occupies the brain at that point,

Right, or they’ll make the mistake while they’re doing a webinar, but they don’t record it the right. And so just because you had 100 people show up, there’s a lot of value to that webinar. So you should take that webinar, you should post it to your website, you should email about it. I mean, again, it’s not just a one time thing. Every time you build content, it’s another asset that you can build on. So that eventually people will find you and hire you.

Jess

When these law firms that are having all these issues with their budgets, when they come to you guys and ask for your help to any firm that may listen to this episode with you guys on it, what do you want to tell them? like three things that your expertise, you know, is a tried and true? What would you want to say to them?

Guy

So that’s a really great question. You know, one of the things that we’re really different about other agencies and other companies like us, is we don’t take a cookie cutter approach to any of our clients, right? I have a lot of times prospective clients will call call me and say, okay, we need to, we need to do some SEO on our website, or we need to create a podcast, or we need to redesign our website. And I said, Okay, well tell me more about that. What Why do you want to do that? What are your what is the business objective, right? So just because they think of something that might not necessarily be the best way to accomplish what they’re trying to accomplish. So we start off with every one of our prospective clients, we start off by having them fill out a questionnaire, and then we do an audit of their digital properties to kind of see where they’re at, where their competitors are at, and what their business objectives are, and we don’t charge for that. That’s something that we do. And once we do that, then I have another conversation and I say, Okay, this is what we saw, this is what you told me, based upon that on that this is what we would like to do. And then we come up with a very specific strategy for them. That would enable them to accomplish their goals. And sometimes this gets frustrating for some clients or prospective clients are like, well, I just want to quote How much does it cost? And I’m like, I’m sorry, you I’m not just going to give you a call.  I need to understand more about what you’re trying to do, what your competitors are doing and where you’re at today. And, you know, that’s worked really well for us. So the one thing I would say is, if you come to us, you’re going to be treated as a unique, very distinct client. And we’re gonna develop a unique and intuitive strategy, just for you, that is going to be different from any other clients.

Jess

I think that’s definitely the biggest part of marketing. If you want to be different, you can’t do the same old tried and true, or maybe what used to work, you know, even with this post COVID environment, you got to change it up. And yeah, I’m glad you mentioned that every client’s needs are very specific. And budgeting is one of them. And I’m sure that changes how you approach marketing for them. So it’s interesting that you will look at all those metrics for free. And then you also have your own podcast, which is free for legal marketing, the legal marketing, 2.0 podcast. So you guys offer a lot of valuable insight for people. And that’s why we wanted to have you on this podcast so that if our clients or anybody else who listens knows that this is an option out there that they can use, because I think marketing is such a big thing, digitally, especially right now probably forever at this point.

Guy

Yeah, we’re big believers in in providing valuable information for free. You know, we publish a blog post every day, we do a weekly podcast, we do monthly webinars. We do other things. We publish free ebooks all the time. And the reason why is we want to educate our audience as much as possible, so that when they need someone, they may know a little bit about how to do it. But if they really want to do it, well, they’ll think of us first. And if they don’t, at least they get that really good information. And eventually that ends up helping them down the road to help sauce.

Rachel

So one thing that I was curious to get your point of view on is sort of the through line that we’re trying to focus our inaugural season our podcast on, which is sort of how legal marketing has both changed because of COVID. And also, where legal marketing is going post COVID are sort of in this weird Limbo state where we’re on the cusp of both things, going back to normal, or people starting to think about going back to normal. Also, things aren’t back to normal yet. So I was just curious, like, what have you seen change over the past year? And how do you see things changing more moving forward?

Guy

So it’s interesting, a couple of things. One is COVID has definitely accelerated the trend towards digital, there’s no question about that. So we were already starting to see that before COVID, more and more firms were investing in digital, you know, sprucing up their website, creating more content, blah, blah, blah. So that has definitely happened. It accelerated it to a point where a lot of CMOS and marketing directors that were complaining because they couldn’t get their attorneys to create content, all of a sudden, they were inundated by huge amounts of content, right? It was like they couldn’t put it out there quickly enough. You know, things settle down a little bit. So you’re starting to see less of that. But there’s still a ton of content that’s being created. And the problem is, you know, just throwing up a bunch of content and see what’s going to stick is really not a great strategy. So what I think is going to happen, what we’ve already started to see happen is firms are going to start to take a step back and say, wait a minute, it’s great that we’re creating content, but what’s the strategy behind it? You know, who do we really want to reach? We can’t market to everyone, right? So you got to really figure out like, what are the strengths of your firm? What are the markets that you really go out want to go after? What is your ideal client profile look like? You know, what are the types of companies that hire you, where you’re really profitable? And then so what they’re gonna start to look at is creating content and strip marketing strategies that focus on their ideal customer profiles, and then measuring everything that you do. So I think that’s really what’s going to ship is a focus on strategy, and narrowing that focus to your best potential client, and then creating strategies around those clients. So, you know, the only thing I would say is, you know, that’s the change into the digital world is, a lot of times I see firms get very stressed out about all these new technologies. And they want to make sure they don’t miss out on anything. And, you know, a few months back, everyone wanted to be on clubhouse/ Well, you know, clubhouse is a good new property, and there’s certainly value to it. But just because it’s out there doesn’t mean that you have to be on it, right. So I think the important thing is to really be measured in how you approach new technology and new channels. But most importantly, I think, if you’re going to improve your marketing, the one thing that I would recommend, is to focus in on your clients, and really gaining an understanding of what it is they really need. Right? That is the most valuable thing. And I don’t think that law firms spend enough time figuring that out, they don’t spend enough time doing research on their clients. Because if you talk to a client, they typically want three things. They want a firm that understands their industry, they want a firm that understands their business, and they want a firm that understands them, that individual that you’re dealing with. And the only way that you can do that is by spending some time doing research. And once you get that information, then you can create the nominal marketing strategies that really have an impact. So I think that’s something that firms are starting to realize. And I think that’s the right way to go. So if you’re a CMO at a firm, or marketing director of a firm, convince your lawyers to spend some time and some budget, really researching your existing clients, so that you can come up with strategies that are really going to make an impact.

Rachel

Great, thank you for giving that great takeaway. I think our listeners will be really interested to sort of really hone down on the direction that they should take their marketing, especially now that everything is going digital online, it’s more important than ever to have a strategy for that. So yeah, thank you for joining us today. That about wraps up our episode on legal marketing budgets, posts COVID-19. And Special thanks to Guy Alvarez with Good2bSocial for joining us.

Guy

Thank you, Jessica. And thank you, Rachel, it’s been a pleasure. And if any of your listeners want more information, go to good2bsocial.com. And check out our blog posts or podcasts, webinars, etc. Thank you.

Rachel

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlawreview.com We’ll be back soon with our next episode.

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

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