Category: Business Organizations

Updated Merger Guidelines Finalized

On December 18, 2023, the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) jointly issued a significantly revised version of the Merger Guidelines that describes the frameworks the enforcement agencies use when evaluating potential mergers.

The newly finalized Merger Guidelines are the result of a nearly two-year effort that involved both agencies soliciting public input via listening sessions, written comments, and workshops.

The agencies describe the new Merger Guidelines as necessary to address the modern economy and how firms now do business. The Merger Guidelines are broken into multiple sections: Guidelines 1–6 describe the frameworks the agencies use when attempting to identify a merger that the agencies believe raises a prima facie concern, while Guidelines 7–11 explain how to apply those frameworks in specific settings. The guidelines also identify evidence the agencies will consider to potentially rebut an inference of competitive harm. Finally, these guidelines include a discussion of the tools the agencies use when evaluating the relevant facts, the potential harm to competition, and how to define the relevant markets.

The Merger Guidelines are notable for signaling the FTC’s and DOJ’s desire to pursue a more aggressive enforcement agenda, specifically, by lowering the threshold at which proposed mergers will be deemed presumptively anticompetitive by those enforcement agencies. The new guidelines also seek to address relatively new concerns the agencies have identified, such as cross-market transactions and sequences of smaller transactions.

©2024 Epstein Becker & Green, P.C. All rights reserved.
For more on Merger Guidelines, visit the NLR Antitrust & Trade Regulation section.

Can Artificial Intelligence Assist with Cybersecurity Management?

AI has great capability to both harm and to protect in a cybersecurity context. As with the development of any new technology, the benefits provided through correct and successful use of AI are inevitably coupled with the need to safeguard information and to prevent misuse.

Using AI for good – key themes from the European Union Agency for Cybersecurity (ENISA) guidance

ENISA published a set of reports earlier last year focused on AI and the mitigation of cybersecurity risks. Here we consider the main themes raised and provide our thoughts on how AI can be used advantageously*.

Using AI to bolster cybersecurity

In Womble Bond Dickinson’s 2023 global data privacy law survey, half of respondents told us they were already using AI for everyday business activities ranging from data analytics to customer service assistance and product recommendations and more. However, alongside day-to-day tasks, AI’s ‘ability to detect and respond to cyber threats and the need to secure AI-based application’ makes it a powerful tool to defend against cyber-attacks when utilized correctly. In one report, ENISA recommended a multi-layered framework which guides readers on the operational processes to be followed by coupling existing knowledge with best practices to identify missing elements. The step-by-step approach for good practice looks to ensure the trustworthiness of cybersecurity systems.

Utilizing machine-learning algorithms, AI is able to detect both known and unknown threats in real time, continuously learning and scanning for potential threats. Cybersecurity software which does not utilize AI can only detect known malicious codes, making it insufficient against more sophisticated threats. By analyzing the behavior of malware, AI can pin-point specific anomalies that standard cybersecurity programs may overlook. Deep-learning based program NeuFuzz is considered a highly favorable platform for vulnerability searches in comparison to standard machine learning AI, demonstrating the rapidly evolving nature of AI itself and the products offered.

A key recommendation is that AI systems should be used as an additional element to existing ICT, security systems and practices. Businesses must be aware of the continuous responsibility to have effective risk management in place with AI assisting alongside for further mitigation. The reports do not set new standards or legislative perimeters but instead emphasize the need for targeted guidelines, best practices and foundations which help cybersecurity and in turn, the trustworthiness of AI as a tool.

Amongst other factors, cybersecurity management should consider accountability, accuracy, privacy, resiliency, safety and transparency. It is not enough to rely on traditional cybersecurity software especially where AI can be readily implemented for prevention, detection and mitigation of threats such as spam, intrusion and malware detection. Traditional models do exist, but as ENISA highlights they are usually designed to target or’address specific types of attack’ which, ‘makes it increasingly difficult for users to determine which are most appropriate for them to adopt/implement.’ The report highlights that businesses need to have a pre-existing foundation of cybersecurity processes which AI can work alongside to reveal additional vulnerabilities. A collaborative network of traditional methods and new AI based recommendations allow businesses to be best prepared against the ever-developing nature of malware and technology based threats.

In the US in October 2023, the Biden administration issued an executive order with significant data security implications. Amongst other things, the executive order requires that developers of the most powerful AI systems share safety test results with the US government, that the government will prepare guidance for content authentication and watermarking to clearly label AI-generated content and that the administration will establish an advanced cybersecurity program to develop AI tools and fix vulnerabilities in critical AI models. This order is the latest in a series of AI regulations designed to make models developed in the US more trustworthy and secure.

Implementing security by design

A security by design approach centers efforts around security protocols from the basic building blocks of IT infrastructure. Privacy-enhancing technologies, including AI, assist security by design structures and effectively allow businesses to integrate necessary safeguards for the protection of data and processing activity, but should not be considered as a ‘silver bullet’ to meet all requirements under data protection compliance.

This will be most effective for start-ups and businesses in the initial stages of developing or implementing their cybersecurity procedures, as conceiving a project built around security by design will take less effort than adding security to an existing one. However, we are seeing rapid growth in the number of businesses using AI. More than one in five of our survey respondents (22%), for instance, started to use AI in the past year alone.

However, existing structures should not be overlooked and the addition of AI into current cybersecurity system should improve functionality, processing and performance. This is evidenced by AI’s capability to analyze huge amounts of data at speed to provide a clear, granular assessment of key performance metrics. This high-level, high-speed analysis allows businesses to offer tailored products and improved accessibility, resulting in a smoother retail experience for consumers.

Risks

Despite the benefits, AI is by no-means a perfect solution. Machine-learning AI will act on what it has been told under its programming, leaving the potential for its results to reflect an unconscious bias in its interpretation of data. It is also important that businesses comply with regulations (where applicable) such as the EU GDPR, Data Protection Act 2018, the anticipated Artificial Intelligence Act and general consumer duty principles.

Cost benefits

Alongside reducing the cost of reputational damage from cybersecurity incidents, it is estimated that UK businesses who use some form of AI in their cybersecurity management reduced costs related to data breaches by £1.6m on average. Using AI or automated responses within cybersecurity systems was also found to have shortened the average ‘breach lifecycle’ by 108 days, saving time, cost and significant business resource. Further development of penetration testing tools which specifically focus on AI is required to explore vulnerabilities and assess behaviors, which is particularly important where personal data is involved as a company’s integrity and confidentiality is at risk.

Moving forward

AI can be used to our advantage but it should not been seen to entirely replace existing or traditional models to manage cybersecurity. While AI is an excellent long-term assistant to save users time and money, it cannot be relied upon alone to make decisions directly. In this transitional period from more traditional systems, it is important to have a secure IT foundation. As WBD suggests in our 2023 report, having established governance frameworks and controls for the use of AI tools is critical for data protection compliance and an effective cybersecurity framework.

Despite suggestions that AI’s reputation is degrading, it is a powerful and evolving tool which could not only improve your business’ approach to cybersecurity and privacy but with an analysis of data, could help to consider behaviors and predict trends. The use of AI should be exercised with caution, but if done correctly could have immeasurable benefits.

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* While a portion of ENISA’s commentary is focused around the medical and energy sectors, the principles are relevant to all sectors.

Copyright © 2024 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more on Artificial Intelligence, visit the NLR Communications, Media & Internet section

International Trade, Enforcement & Compliance Recent Developments Update (January 17, 2024)

One of the most consistent messages coming from the U.S. government is that multinational companies need to take control of their supply chains. Forced labor, human trafficking, supply chain transparency, OFAC sanctions, even conflict minerals — all are areas in which the best defense against potential violations is strong compliance and due diligence to ensure that companies properly manage their supply chains, rights down to the last supplier. Today’s mix of enforcement actions and guidance from the U.S. government underscores the importance of doing so.

EXPORT CONTROLS AND HUMAN RIGHTS

The Department of Commerce has stated that it has the authority to put companies on the Entity List (requiring special licensing and restrictions) solely for human rights violations. Does your company conduct full due diligence on its suppliers and sub-suppliers to ensure that they are operating in accordance with U.S. forced labor and human trafficking laws?

FORCED LABOR/UFLPA

The Department of Homeland Security continues to add Chinese and other companies to the Uyghur Forced Labor and Prevention Act (UFLPA) Entity List. Does your organization specifically screen against the UFLPA Entity List, as well as have in place UFLPA compliance and due diligence measures?

FORCED LABOR/UFLPA

The U.S. government has issued a pointed six-agency set of compliance guidelines regarding “the Risks and Considerations for Businesses and Individuals with Exposure to Entities Engaged in Forced Labor and other Human Rights Abuses linked to Xinjiang Uyghur Autonomous Region.” Does your organization maintain a compliance policy, vendor code of conduct, supply chain transparency and due diligence procedures, and other measures designed to ensure your supply chain is free of forced labor, human trafficking, or goods sourced from forced labor in the Xingjian Autonomous Region?

CUSTOMS PENALTY FOR ERRONEOUS USE OF FIRST SALE RULE

Due to the imposition of special Section 301 tariffs on most goods from Customs, many companies have begun to use the first sale rule, which allows the reporting of a lower value where there is a bona fide sale to a middleman. Improper application of the rule, however, can be the basis for substantial penalties, as an apparel company that paid a $1.3 million settlement with the DOJ found out. If your company uses the first sale rule, do you regularly review pricing and relevant circumstances to ensure you are meeting all the requirements for all entries?

EXPORT CONTROLS

Pledging “a new era of trilateral partnership,” the U.S., Japan, and South Korea governments have announced expanded collaboration to fight illegal exports of dual-use products, including high-tech products that might be shipped to China in violation of U.S. export controls. Has your organization performed a recent classification review to confirm it is aware of any restrictions that might adhere to the export of any of its products to sensitive countries, governments, or users?

© 2024 Foley & Lardner LLP
For more on Trade and Enforcement, visit the NLR Antitrust & Trade Regulation section.

Recent FinCEN FAQs Provide Additional Guidance on Compliance

The US Financial Crimes Enforcement Network (FinCEN) released several new FAQs this month to provide further clarity on the Corporate Transparency Act’s (CTA) provisions.
Notably, FinCEN provided guidance on who is considered “primary responsible” for directing a filing, as well as what is necessary to qualify under the subsidiary exemption, among other matters.

The CTA’s requirements went into effect on January 1, 2024. As we’ve previously detailed, reporting companies formed prior to that date will be required to file their initial reports with FinCEN no later than January 1, 2025. A reporting company created during 2024 is required to file its initial report within 90 days of its creation or registration, and one created on or after January 1, 2025, will have 30 days to file its initial report. A previously registered company will need to update its registration within 30 days of a change in its beneficial ownership or other information reported to FinCEN. For detailed overviews of the CTA, please visit our earlier posts located here, here, and here.

Company Applicants: Who is “Primarily Responsible” for Directing a Filing?
The CTA requires that reporting companies formed on or after January 1, 2024, disclose their “company applicant.” An individual is a “company applicant” if (1) they directly file the company’s formation or registration documents with a secretary of state or similar office or (2) if more than one person is involved in the filing, they are primary responsible for directing or controlling the filing. A maximum of two individuals can be reported as company applicants.

The FAQs clarify that the person who signs the formation document, such as an incorporator, is not necessarily a company applicant. Instead, the rule focuses on the person responsible for making decisions about the filing, including how the filing is managed, what contents to include, and when and where filing will occur.

FinCEN provides three scenarios to illustrate the rule. In two of the scenarios, an attorney or a paralegal instructed by that attorney completes a company creation document using information provided by a client and sends the document to a corporate service provider to be filed with a secretary of state. In this scenario, the attorney will one of the company applicants, and the employee at the corporate service provider who directly filed the document with the secretary of state will be the other company applicant. In the third scenario, the attorney’s client initiated the company creation directly with the corporate service provider — in this case, the client will be a company applicant (as will the employee at the corporate service provider who directly filed the document).

Subsidiary Exemption: Is Partial Control of a Subsidiary’s Ownership Interests By an Exempt Entity Sufficient to Qualify for the Subsidiary Exemption?
The short answer is — no.

The CTA lists 23 categories of entities that are exempt from the beneficial ownership information (BOI) reporting requirements. A subsidiary of certain categories of exempt entities will also be exempt if the subsidiary is controlled or wholly owned, whether directly or indirectly, by one or more of such exempt entities.

The FAQs clarify what happens when the exempt entity partially controls the subsidiary. Partial control is insufficient for an entity to fall within the subsidiary exemption — a subsidiary’s ownership interests must be fully, 100% owned or controlled by the exempt entity to qualify for this exemption. Thus, control of ownership interests means that one or more exempt entities entirely control all of the ownership interests in the reporting company, in the same way that an exempt entity must wholly own all of a subsidiary’s ownership interests for the exemption to apply.

Selected Additional Matters Covered by the New FAQs
Reporting Company Ownership Subject to Dispute: If ownership of a reporting company is the subject of active litigation, all individuals who own or control (or claim to own or control) at least 25% of the company’s interests are considered beneficial owners, and BOI must be submitted for each individual (in addition to BOI for all individuals who exercise substantial control over the company). If, after the legal dispute is solved, the reporting company has different beneficial owners from those initially reported, an updated BOI report must be filed within 30 calendar days after the litigation is resolved.
Third-Party Couriers or Delivery Service Employees: Third-party courier or delivery service employees who solely deliver documents to a secretary of state are not company applicants, as long as the third-party courier, the delivery service employee, and the delivery service that employs them play no other roles in the creation or registration of the reporting company.
Automated Incorporation Service: An automated incorporation service’s employees are not company applicants if the service solely provides software, online tools, or generally applicable written guidance for the creation of a reporting company and its employees are not directly involved in filing creation documents.
No Photo on Identification Document for Religious Reasons: If a beneficial owner’s or company applicant’s identification document does not include a photograph for religious reasons, the reporting company may submit an image of that identification document when submitting its report, provided that the document is otherwise an acceptable type of identification. If the individual in question obtains a FinCEN identifier, then the burden of providing the identification document to FinCEN would fall on the individual and not on the company (which would only need to report the FinCEN identifier).
No Permanent Residential Address: When a reporting company must report an individual’s residential address, but no such permanent address is available, the reporting company should report the residential address that is current at the time of filing the report. If the address later changes, the reporting company must submit an updated report within 30 days from such change. The use of a FinCEN identifier by the individual will eliminate the company’s need to submit an updated report, although the individual would be required to update his or her address with FinCEN directly.

© 2024 ArentFox Schiff LLP

by: Evgeny Magidenko of ArentFox Schiff LLP

For more news on Corporate Transparency Act Compliance, visit the NLR Corporate & Business Organizations section.

DOL Announces New Independent Contractor Rule

On January 9, 2024, the United States Department of Labor (“DOL”) announced a new rule, effective March 11, 2024, that could impact countless businesses that use independent contractors. The new rule establishes a six-factor analysis to determine whether independent contractors are deemed to be “employees” of those businesses, and thus imposes obligations on those businesses relating to those workers including:  maintaining detailed records of their compensation and hours worked; paying them regular and overtime wages; and addressing payroll withholdings and payments, such as those mandated by the Federal Insurance Contributions Act (“FICA” for Social Security and Medicare), the Federal Unemployment Tax Act (“FUTA”), and federal income tax laws. Further, workers claiming employee status under this rule may claim entitlement to coverage under the businesses’ group health insurance, 401(k), and other benefits programs.

The DOL’s new rule applies to the federal Fair Labor Standards Act (“FLSA”) which sets forth federally established standards for the protection of workers with respect to minimum wage, overtime pay, recordkeeping, and child labor. In its prefatory statement that accompanied the new rule’s publication in the Federal Register, the DOL noted that because the FLSA applies only to “employees” and not to “independent contractors,” employees misclassified as independent contractors are denied the FLSA’s “basic protections.”

Accordingly, when the new rule goes into effect on March 11, 2024, the DOL will use its new, multi-factor test to determine whether, as a matter of “economic reality,” a worker is truly in business for themself (and is, therefore, an independent contractor), or whether the worker is economically dependent on the employer for work (and is, therefore, an employee).

While the DOL advises that additional factors may be considered under appropriate circumstances, it states that the rule’s six, primary factors are: (1) whether the work performed provides the worker with an opportunity to earn profits or suffer losses depending on the worker’s managerial skill; (2) the relative investments made by the worker and the potential employer and whether those made by the worker are to grow and expand their own business; (3) the degree of permanence of the work relationship between the worker and the potential employer; (4) the nature and degree of control by the potential employer; (5) the extent to which the work performed is an integral part of the potential employer’s business; and (6) whether the worker uses specialized skills and initiative to perform the work.

In its announcement, the DOL emphasized that, unlike its earlier independent contractor test which accorded extra weight to certain factors, the new rule’s six primary factors are to be assessed equally. Nevertheless, the breadth and impreciseness of the factors’ wording, along with the fact that each factor is itself assessed through numerous sub-factors, make the rule’s application very fact-specific. For example, through a Fact Sheet the DOL recently issued for the new rule, it explains that the first factor – opportunity for profit or loss depending on managerial skill – primarily looks at whether a worker can earn profits or suffer losses through their own independent effort and decision making, which will be influenced by the presence of such factors as whether the worker: (i) determines or meaningfully negotiates their compensation; (ii) decides whether to accept or decline work or has power over work scheduling; (iii) advertises their business, or engages in other efforts to expand business or secure more work; and (iv) makes decisions as to hiring their own workers, purchasing materials, or renting space. Similar sub-factors exist with respect to the rule’s other primary factors and are explained in the DOL’s Fact Sheet.

The rule will likely face legal challenges by business groups. Further, according to the online newsletter of the U.S. Senate Health, Education, Labor and Pensions Committee, its ranking member, Senator Bill Cassidy, has indicated that he will seek to repeal the rule. Also, in the coming months, the United States Supreme Court is expected to decide two cases that could significantly weaken the regulations issued by federal agencies like the DOL’s new independent contractor rule, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. U.S. Dept. of Commerce. We will continue to monitor these developments.1

In the meantime, we recommend that businesses engaging or about to engage independent contractors take heed. Incorrect worker classification exposes employers to the FLSA’s significant statutory liabilities, including back pay, liquidated damages, attorneys’ fees to prevailing plaintiffs, and in some case, fines and criminal penalties. Moreover, a finding that an independent contractor has “employee” status under the FLSA may be considered persuasive evidence of employee status under other laws, such as discrimination laws. Additionally, existing state law tests for determining employee versus independent contractor status must also be considered.

1 The DOL’s independent contractor rule is not the only new federal agency rule being challenged. On January 12, 2024, the U.S. House of Representatives voted to repeal the NLRB’s recently announced joint-employer rule, which we discussed in our Client Alert of November 10, 2023.

Eric Moreno contributed to this article.

© Copyright 2024 Sills Cummis & Gross P.C.
For more on the Independent Contractor Rule, visit the NLR Labor & Employment section.

Exploring the Future of Information Governance: Key Predictions for 2024

Information governance has evolved rapidly, with technology driving the pace of change. Looking ahead to 2024, we anticipate technology playing an even larger role in data management and protection. In this blog post, we’ll delve into the key predictions for information governance in 2024 and how they’ll impact businesses of all sizes.

  1. Embracing AI and Automation: Artificial intelligence and automation are revolutionizing industries, bringing about significant changes in information governance practices. Over the next few years, it is anticipated that an increasing number of companies will harness the power of AI and automation to drive efficient data analysis, classification, and management. This transformative approach will not only enhance risk identification and compliance but also streamline workflows and alleviate administrative burdens, leading to improved overall operational efficiency and effectiveness. As organizations adapt and embrace these technological advancements, they will be better equipped to navigate the evolving landscape of data governance and stay ahead in an increasingly competitive business environment.
  2. Prioritizing Data Privacy and Security: In recent years, data breaches and cyber-attacks have significantly increased concerns regarding the usage and protection of personal data. As we look ahead to 2024, the importance of data privacy and security will be paramount. This heightened emphasis is driven by regulatory measures such as the California Consumer Privacy Act (CCPA) and the European Union’s General Data Protection Regulation (GDPR). These regulations necessitate that businesses take proactive measures to protect sensitive data and provide transparency in their data practices. By doing so, businesses can instill trust in their customers and ensure the responsible handling of personal information.
  3. Fostering Collaboration Across Departments: In today’s rapidly evolving digital landscape, information governance has become a collective responsibility. Looking ahead to 2024, we can anticipate a significant shift towards closer collaboration between the legal, compliance, risk management, and IT departments. This collaborative effort aims to ensure comprehensive data management and robust protection practices across the entire organization. By adopting a holistic approach and providing cross-functional training, companies can empower their workforce to navigate the complexities of information governance with confidence, enabling them to make informed decisions and mitigate potential risks effectively. Embracing this collaborative mindset will be crucial for organizations to adapt and thrive in an increasingly data-driven world.
  4. Exploring Blockchain Technology: Blockchain technology, with its decentralized and immutable nature, has the tremendous potential to revolutionize information governance across industries. By 2024, as businesses continue to recognize the benefits, we can expect a significant increase in the adoption of blockchain for secure and transparent transaction ledgers. This transformative technology not only enhances data integrity but also mitigates the risks of tampering, ensuring trust and accountability in the digital age. With its ability to provide a robust and reliable framework for data management, blockchain is poised to reshape the way we handle and secure information, paving the way for a more efficient and trustworthy future.
  5. Prioritizing Data Ethics: As data-driven decision-making becomes increasingly crucial in the business landscape, the importance of ethical data usage cannot be overstated. In the year 2024, businesses will place even greater emphasis on data ethics, recognizing the need to establish clear guidelines and protocols to navigate potential ethical dilemmas that may arise. To ensure responsible and ethical data practices, organizations will invest in enhancing data literacy among their workforce, prioritizing education and training initiatives. Additionally, there will be a growing focus on transparency in data collection and usage, with businesses striving to build trust and maintain the privacy of individuals while harnessing the power of data for informed decision-making.

The future of information governance will be shaped by technology, regulations, and ethical considerations. Businesses that adapt to these changes will thrive in a data-driven world. By investing in AI and automation, prioritizing data privacy and security, fostering collaboration, exploring blockchain technology, and upholding data ethics, companies can prepare for the challenges and opportunities of 2024 and beyond.

Jim Merrifield, Robinson+Cole’s Director of Information Governance & Business Intake, contributed to this report.

Copyright © 2023 Robinson & Cole LLP. All rights reserved.
For more on Information Governance, visit the NLR Communications, Media & Internet section.

Why Lawyers Should Prioritize Business Development and Marketing in 2024 and Beyond

Simply being a great lawyer is not enough to be successful as a lawyer today. The modern lawyer must be a multifaceted professional, combining sharp legal expertise with savvy business development and strategic marketing acumen.

Whether you’re a partner or an associate, understanding and implementing effective marketing strategies is vital. It’s not just about attracting clients; it’s about building a robust personal brand, establishing a solid reputation and nurturing a network of valuable connections and referral sources.

In this blog post, I will explore essential tactics and innovative strategies that lawyers can employ to distinguish themselves, enhance their market position and build a sustainable and thriving practice in the legal industry.

BUSINESS DEVELOPMENT AND MARKETING IN 2024 AND BEYOND FOR ASSOCIATES

For associates, learning how to master the art of business development and marketing early on is not just advantageous—it’s imperative. As you lay the foundation of your legal career, it’s crucial to pair your growing legal expertise with robust business development strategies and marketing acumen. These tips are designed to help you effectively build your brand, establish enduring professional relationships and position yourself as a subject matter expert – all of which are important as you embark on your legal career.

  1. Build Relationships Early: Start networking as soon as you enter the field. Attend industry seminars, join legal forums, trade associations and alumni groups, and stay active on Linkedin. Cultivate relationships not just with potential clients but also with mentors and peers. The connections you make early can become your most valuable assets.
  2. Develop a Niche: Specialize in an area of law that interests you. This specialization will help you stand out and attract specific clients. In addition, becoming an authority in a particular legal area can lead to more targeted and effective marketing opportunities.
  3. Mentorship and Learning: Seek mentors such as partners at the firm who your admire who can guide you in understanding the nuances of legal marketing and client relationship management. Learn from their experiences and insights. Being proactive in seeking knowledge and advice will accelerate your growth and confidence in navigating the complex world of legal marketing.
  4. Utilize Technology: Embrace legal tech solutions for efficiency and better client engagement. Understand and leverage social media and content marketing to enhance your online presence. Being tech-savvy can significantly increase your visibility and appeal to a broader client base.
  5. Consistent Personal Branding: Develop and maintain a consistent personal brand across all platforms. Your brand should reflect your professional values, expertise and the unique solutions you provide. A strong, consistent brand will make you memorable and help you stand out in a crowded market.
  6. Pro Bono and Community Service: Engage in pro bono work or community service related to your field. This not only will help you broaden you network but it will also contribute to your personal development, experience, commitment and compassion—qualities that are highly attractive to potential clients and employers.
  7. Feedback and Adaptability: Seek feedback regularly from peers, mentors and clients and be willing to adapt your strategies accordingly. The legal market is continually evolving, and so should your approach to business development and marketing.

BUSINESS DEVELOPMENT AND MARKETING IN 2024 AND BEYOND FOR PARTNERS

As partners, your role extends beyond legal practice to shaping the firm’s strategic direction and business success. With extensive experience and a comprehensive network, you are in a prime position to influence growth and innovation. Here are some practical, impactful ways you can leverage your position to drive business development and market yourself and your firm effectively in an ever-evolving industry.

  1. Lead by Example: Encourage a culture of business development within the firm. Demonstrate your commitment by actively engaging in networking, speaking engagements and thought leadership. Your involvement sets a precedent and motivates junior lawyers to emulate these practices.
  2. Leverage Your Network: Your years in practice have earned you a vast and valuable network. Utilize your established connections for referrals, collaborations and strategic partnerships. Your reputation and relationships can significantly amplify business opportunities and open new doors for the firm.
  3. Innovate and Adapt: Stay abreast of the latest marketing trends, especially in digital marketing, and adapt them to fit the legal industry. Embrace new technologies and platforms to reach wider audiences and offer innovative solutions. Your willingness to innovate signifies a forward-thinking firm that’s prepared for future challenges.
  4. Strategic Client Relationship Management: Deepen relationships with key clients by providing bespoke, value-added services and regular engagement. Use your insights and experiences to anticipate their needs and offer solutions before they arise. Strong client relationships often lead to retention and referrals.
  5. Invest in Talent and Mentorship: Identify and nurture the next generation of lawyers in your firm. Provide mentorship and invest in their business development skills. Their growth will contribute to the firm’s legacy and ensure a steady stream of innovative leaders.
  6. Thought Leadership: Regularly publish articles, speak at industry events and participate in discussions that showcase your expertise and the firm’s capabilities. Thought leadership not only enhances your personal brand but also elevates the firm’s profile.
  7. Evaluate and Refine: Regularly assess the effectiveness of your business development and marketing strategies. Be open to refining approaches based on outcomes and industry changes. A flexible, results-oriented approach ensures that the firm stays competitive and relevant.

HOW TO OVERCOME DISCOMFORT IN MARKETING

You may find the marketing aspect of law somewhat out of your comfort zone. Overcoming this discomfort is crucial for personal growth and the firm’s success. Here are some strategies to ease into effective marketing and business development.

  1. Training and Workshops: Invest time in business development and marketing workshops tailored for lawyers. These workshops can provide valuable insights into the latest trends and techniques, making the process more approachable and less daunting.
  2. Start Small: If the thought of large networking events is overwhelming, begin with more manageable one-on-one meetings or small group gatherings. As you build confidence, gradually increase the size and scope of your engagements.
  3. Collaborate with Peers: Partner with colleagues on marketing initiatives. Collaborating can divide the workload, play to each person’s strengths and make the process more enjoyable and less intimidating.
  4. Mentorship and Coaching: Seek a mentor or coach who has successfully integrated marketing into their legal practice. Learning from their experiences and insights can demystify the process and provide practical steps to follow.
  5. Set Realistic Goals: Establish clear, achievable goals for your marketing efforts. Small victories can significantly boost your confidence and motivate you to tackle more ambitious projects.
  6. Reflect on Successes: Keep track of your progress and take the time to celebrate successes, no matter how small. Reflecting on positive outcomes can reinforce the value of your marketing efforts and diminish discomfort over time.
  7. Leverage Personal Interests: Incorporate your hobbies or interests into your networking and marketing strategies. Connecting over shared interests can make interactions more natural and less forced.
  8. Understand Your Audience: Spend time understanding the needs and preferences of your target audience. Tailoring your approach to what they find engaging can make your efforts feel more genuine and less like a chore.By incorporating these strategies into your routine, you can gradually overcome discomfort with marketing, turning it into a natural and rewarding extension of your professional activities. As you become more comfortable, your ability to effectively market yourself and your firm will undoubtedly grow, resulting in greater business success.

CONCLUSION

For lawyers at any stage, embracing business development and marketing is not an option but a necessity. It’s about building a personal brand, expanding your network and ensuring a steady stream of work. Marketing and business development are powerful tools that can significantly transform a lawyer’s career trajectory. By actively engaging in these practices, lawyers can:

  1. Enhance Visibility: Establishing a strong personal brand makes you more recognizable in the legal community, leading to increased trust and a higher likelihood of referrals.
  2. Expand Client Base: Effective marketing strategies attract a broader client base, including more lucrative and high-profile cases.
  3. Build a Reputation: Consistent business development efforts help in building a reputation as an expert in specific legal fields, making you the go-to lawyer for those particular matters.
  4. Foster Relationships: Through networking, lawyers can foster long-term relationships, not just with potential clients but also with other professionals who can provide referrals.

Key Takeaways

  1. It’s Never Too Early or Late: Whether you’re a junior lawyer or a seasoned partner, now is the right time to start focusing on business development and marketing.
  2. Consistency is Key: Regularly engage in networking, personal branding and strategic marketing efforts.
  3. Adapt and Evolve: Stay updated with the latest marketing trends and adapt them to your practice.
  4. Seek Support: If marketing doesn’t come naturally, seek training or collaborate with colleagues to ease into the practice.
  5. Measure Success: Keep track of your efforts and adjust your strategies based on what works best for you and your practice.
Copyright © 2023, Stefanie M. Marrone. All Rights Reserved.
For more news on Business Development and Marketing for Lawyers, please visit the NLR Law Office Management section.

Beware of Corporate Transparency Act Scams and Fraud

The Corporate Transparency Act’s (CTA) Beneficial Ownership Information reporting requirements are set to take effect on January 1, and bad actors are already using the CTA’s requirements to solicit unauthorized access to Personally Identifiable Information. To that end, the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) recently issued a warning regarding such scams. FinCEN describes these efforts as follows:

“The fraudulent correspondence may be titled “Important Compliance Notice” and asks the recipient to click on a URL or to scan a QR code. Those e-mails or letters are fraudulent. FinCEN does not send unsolicited requests (emphasis added). Please do not respond to these fraudulent messages, or click on any links or scan any QR codes within them.”

© 2023 Varnum LLP
For more news on Corporate Transparency Act Scams and Fraud, visit the NLR Corporate & Business Organizations section.

Beneficial for Whom? Requirement to Provide Beneficial Ownership Information for Business Entities Begins January 1, 2024

On January 1, 2024, the Corporate Transparency Act, a US federal law, will begin requiring certain corporations and limited liability companies to disclose their beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN), a bureau of the US Department of the Treasury. The corporate ownership structures of many gaming companies, particularly those that utilize a private equity or Voteco model, may be subject to the reporting obligations.

Unless an exemption applies, entities subject to these obligations must report information about their beneficial owners, including their full legal names, dates of birth, addresses, unique identification numbers, and an image of one of the following non-expired documents: (i) state driver’s license; (ii) US passport; or (iii) identification document issued by a state, local government, or tribe. Gaming companies should consult with their legal counsel on their specific structures and the applicability of the reporting obligations to their corporate ownership models.

The willful failure to report complete or updated beneficial ownership information to FinCEN, or the willful provision of or attempt to provide false or fraudulent beneficial ownership information, may result in civil or criminal penalties, including civil penalties of up to $500 for each day that the violation continues or criminal penalties including imprisonment for up to two years and/or a fine of up to $10,000. Senior officers of an entity that fails to file a required beneficial ownership information report may be held accountable for that failure.

The obligation to report this information is generally required for entities with at least one beneficial owner who owns 25% or more of the entity or exercises substantial control over it. An individual exercises substantial control over a reporting company if that individual meets any of four general criteria: (1) the individual is a senior officer; (2) the individual has authority to appoint or remove certain officers or a majority of directors of the reporting company; (3) the individual is an important decision maker; or (4) the individual has any other form of substantial control over the reporting company.

Reporting companies created or registered to do business before January 1, 2024, will have until January 1, 2025, to file their initial reports. Under FinCEN’s regulations, reporting companies created or registered on or after January 1, 2024, will have 90 days after their company’s creation or registration to file their initial reports, and those created or registered on or after January 1, 2025, will have 30 days after their company’s creation or registration to file their initial reports.

© 2023 Jones Walker LLP
For more news on the Corporate Transparency Act and Beneficial Ownership Information, visit the NLR Criminal Law / Business Crimes section.

Employment Tip of the Month – December 2023

Q: What obligations do employers have when considering employee requests for time off for religious observances, especially during the holidays?

A: While employers generally are free to approve or refuse employee requests for time off, when it comes to requests for time off for religious observance, they are required by law to provide reasonable accommodations to employees for religious observances that conflict with work requirements at any point during the year, including holidays when there is an increase in such requests, unless doing so would create an undue hardship.

Title VII of the Civil Rights Act of 1964 (Title VII), applicable to employers with 15 or more employees, and similar state laws prohibit employers from discriminating against employees in hiring, firing, and other terms and conditions of employment because of their religious beliefs.

“Religious belief” is interpreted broadly by the Equal Employment Opportunity Commission (EEOC) and the courts to include not only traditional organized religions, such as Buddhism, Christianity, Hinduism, Islamism and Judaism, but also nontraditional religions and ethical and moral beliefs if they are sincerely held. Title VII also requires employers to reasonably accommodate the religious beliefs of employees unless doing so would impose an undue hardship on the employer. Reasonable accommodations can take many forms, from a work schedule modification or shift change to time off, leaving the question: What’s an undue hardship?

Until recently, the threshold to prove undue hardship was defined as “more than a de minimus” expense. Earlier this year, in Groff v. DeJoy, 600 U.S. 447 (2023), the Supreme Court of the United States did away with the “de minimus” threshold and clarified that to establish the undue hardship defense, under which the employer must show that granting the accommodation would result in a substantial burden to the employer, taking into account the particular accommodation at issue and its practical impact on the business. Under Groff, an employer must conduct an individualized assessment of a religious accommodation request and may deny it only if granting the accommodation would result in substantial increased costs in relation to the employer’s business operations.

While permitting work schedule modifications or time off to accommodate religious observances during the holidays can present administrative headaches, such accommodations often have little or no cost – save for the rare occasion when it may be necessary to hire and train a substitute employee. As a best practice, employers should permit employees to modify their work schedules or take time off for religious observation during the holidays.

© 2023 Wilson Elser
By Laura Stutz of Wilson Elser Moskowitz Edelman & Dicker LLP
For more news on Holiday Employment Tips, visit the NLR Labor & Employment section.