Category: Communication Media & Internet

Is Crypto Collapsing?

November 11, 2022, brought news of yet another massive crypto bankruptcy filing. One of the largest crypto exchanges, FTX, filed a petition for bankruptcy protection in Delaware. FTX, Alameda, and other affiliates estimated in their filings that they have more than 100,000 creditors. With their estimated range of between $10 and $50 billion worth of assets and liabilities, this could well be the largest crypto-related bankruptcy ever filed.

This follows a slew of other big names in crypto which have filed bankruptcy petitions recently, including lender Three Arrows Capital (3AC) and the Celsius crypto exchange. Others have sought similar protections overseas, such as Zipmex’s proceeding in Singapore.

Why are these companies filing bankruptcy? The reasons vary.

  • Business models built on unsustainable growth rates in cryptocurrency prices
  • Collapse in cryptocurrency prices, leading to “runs on the bank”
  • Financial irregularities

Is your crypto safe? That depends on what it is and where you park it. Some newer tokens and wallet software may not have been extensively tested, and so may have weak points that an attacker might exploit. Even “safe” currencies like Bitcoin can be hacked if stored in a hot wallet. Of particular interest, customers of a bankruptcy exchange may find it difficult to recover their crypto deposits because their investments may be treated as mere unsecured claims against the exchange, drastically reducing the odds of recovery.

Filings by crypto-based entities come with a host of thorny issues. The most obvious is whether a crypto exchange’s bankruptcy estate owns the tokens it holds for others. But there are many others, including privacy concerns with respect to what previously were anonymous transactions and questions about the propriety of large financial withdrawals by high-ranking individuals in the days surrounding the filing of bankruptcy petitions.

For More FinTech Legal News, click here to visit the National Law Review.

© 2022 Miller, Canfield, Paddock and Stone PLC

Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications

In their roles as advisors, advocates, counselors, negotiators, and client representatives, lawyers communicate extensively though electronic means, particularly email and increasingly text messages. However, the fact that use of these electronic communication tools is commonplace in legal practice doesn’t mean that attorneys shouldn’t exercise caution when crafting their communications. The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility published a formal opinion this month that advises lawyers to refrain generally from including their clients on emails and texts sent to opposing counsel.

ABA Formal Opinion 503 focuses on ABA Model Rule 4.2, often referred to as the “no-contact” rule. Under this model rule, a lawyer who is representing a client may not communicate about the subject of the representation with a represented person absent the consent of that person’s lawyer unless the law or court order authorizes such as communication. Most states’ codes of professional legal ethics draw heavily upon the ABA Model Rules, so many states have similar “no-contact” rules for lawyers.

The new formal opinion states that lawyers would not be deemed to violate ABA Model Rule 4.2 if they send a “reply all” response to a group email or text sent by an opposing counsel, even if that communication includes the opposing counsel’s client. The opinion states that, “[a]bsent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter impliedly consent to a ‘reply all’ response from the receiving counsel,” the opinion said. “Accordingly, the reply all communication would not violate Model Rule 4.2.”

As a practical matter, Formal Opinion 503 provides a number of options to lawyers who wish to avoid creating an implied presumption of consent to such “reply all” communications from opposing counsel to their clients. These options include:

  • forwarding the electronic communication separately to the client without including opposing counsel as an addressee,
  • informing receiving counsel expressly and in advance that including the client on the electronic communication does not constitute a consent to a “reply all” response, or
  • sending the communication through other means (such as a mailed hard copy letter) where different norms are in place regarding responding to all addressees.

The full text of ABA Formal Opinion 503 is available here.

Article By Electronic Discovery at K&L Gates

For more law office management legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

Five Data Quality Nightmares That Haunt Marketers and How Avoid Them

In this spooky season of vampires, witches and scary clowns, we’d like to add one more to the mix – data quality nightmares – which can be more frightful than a marathon of Freddy Kreuger movies to some of us.

We need data about our clients and prospects in order to create strategic programs that can lead to new business and increased visibility, but maintaining that data on an ongoing basis can quickly turn into a nightmare without the right resources.

Having good quality data is important for success in so many areas of your organization, including:

  • Communicating effectively with core constituencies
  • Successfully planning and executing events
  • Segmenting your target markets, clients or customers
  • Providing superior customer service
  • Understanding the needs of clients or customers
  • Effectively developing new business
  • Improving delivery and reducing costs of postal mailings

The reality is that your data will never be perfect, but there are ways you can address and improve it. The longer you wait to improve your data management, the scarier it will become. Here are some of the most common data quality nightmares we see and how to avoid them:

Data Quality Nightmare 1: Duplicate data

Is your CRM a graveyard for thousands of duplicate company and individual contacts? Data comes from all directions, so it’s important to ensure that data isn’t being duplicated. Dupes make it difficult to coordinate efforts and activities. Duplicate data occurs when customer information appears more than once in the database, or multiple variations of the same individual appear.

Secondly, duplicate data can damage your brand image. It is unlikely that a contact who receives the same information twice will be happy about it. This is an easy way to frustrate customers and prospects and can make your business appear disorganized.

Data Quality Nightmare 2: Missing or incomplete data

Are your contact details ‘ghosting you’? Without good data you can’t target or segment, and your communications and invitations won’t reach the right audiences.

Similar to inaccurate data, incomplete data can also have a negative impact on your business performance.

One way that organizations can help control this data quality nightmare, is by making certain form fields a required entry. That way, data entries will be more consistent and complete.

Data Quality Nightmare 3: Incorrect or inconsistent data

Does incorrect or inconsistent data give you nightmares? Bad CRM data leads to missed opportunities for new customers, and it could create issues for your sales cycle. There is almost no point in engaging with contacts in your database if the information is incorrect.

There are multiple ways to encourage good data habits, depending on your system and method of contact entry. If your firm relies on manual data entry, implement a firmwide Data Standards Guide to inform users how data should be entered (e.g., does your firm spell out or abbreviate job titles?). It can also be helpful to use system validation rules wherever possible to require certain information in new records such as last name, city and email address to ensure your contacts are relevant.

Data Quality Nightmare 4: Too much data

Are you in the ‘zombie zone’ trying blindly to figure out what to do with too much data and/or disparate data from disconnected systems?

Having too much data can be overwhelming – and unnecessary. It’s important to set parameters on what information you truly need about your clients and prospects, and then maintain only that information going forward. This will streamline the process and make everyone’s jobs easier by avoiding data quality nightmares.

Data Quality Nightmare 5: Lack of data quality resources

Does your team run screaming from data quality projects leaving you with a data disaster?

To encourage ongoing system adoption and utilization, data quality and maintenance must be top priorities. Resources must be dedicated – including time, money and people. Processes and procedures need to be put in place to maintain ongoing quality. Most importantly, training and communication are essential to ensure that end users don’t create unnecessary duplicates or introduce more bad data into the system.

Data Quality Doesn’t Have to Be Scary

While it’s easy to become scared by nightmare data, it’s important to put it in perspective. Focus on discreet data and projects that yield real ROI such as:

  • Start with your most relevant records like current clients. Begin cleaning your top 100 to 500 along with associated key contacts.
  • Review frequently used lists to ensure your communications and invitations are reaching the right recipients.
  • Vet bounced emails after each campaign, or better yet, regularly run lists through an automated data process to identify bad emails before a campaign to ensure that information actually reaches your targets in a timely manner.
  • Tackle time-sensitive one-off projects. For instance, an upcoming event often provides a good opportunity to get users engaged in cleanup efforts, particularly if the event is important to them.

It’s also important to remember that because data degrades so rapidly, data cleaning can’t be a one-time initiative. Once your team begins regularly maintaining your data, the cleanup will get easier over time. And remember, because data cleaning never really ends, the good news is that this means you have forever to get better at it.

Article By Christina R. Fritsch JD of CLIENTSFirst Consulting

For more business of law legal news, click here to visit the National Law Review.

© Copyright 2022 CLIENTSFirst Consulting

Biden Administration Expands Public-Private Cybersecurity Partnership to Chemical Sector

On October 26, 2022, the Biden Administration announced that it is expanding the Industrial Control Systems (ICS) Cybersecurity Initiative to the chemical sector. The White House’s fact sheet states that the majority of chemical companies are privately owned, so a collaborative approach is needed between the private sector and government. According to the fact sheet, “[t]he nation’s leading chemical companies and the government’s lead agency for the chemical sector — the Cybersecurity and Infrastructure Agency (CISA) — have agreed on a plan to promote a higher standard of cybersecurity across the sector, including capabilities that enable visibility and threat detection for industrial control systems.”

The fact sheet states that the Chemical Action Plan will serve as a roadmap to guide the sector’s assessment of their current cybersecurity practices over the next 100 days, building on the lessons learned and best practices of the previously launched action plans for the electric, pipeline, and water sectors to meet the needs for this sector. The Chemical Action Plan will:

  • Focus on high-risk chemical facilities that present significant chemical release hazards with the ultimate goal of supporting enhanced ICS cybersecurity across the entire chemical sector;
  • Drive information sharing and analytical coordination between the federal government and the chemical sector;
  • Foster collaboration with the sector owners and operators to facilitate and encourage the deployment of appropriate technologies based on each chemical facility’s own risk assessment and cybersecurity posture. The federal government will not select, endorse, or recommend any specific technology or provider; and
  • Support the continuity of chemical production critical to the national and economic security of the United States. The chemical sector produces and manufactures chemicals that are used directly or as building blocks in the everyday lives of Americans, from fertilizers and disinfectants to personal care products and energy sources, among others.

The ICS Cybersecurity Initiative emphasizes that cybersecurity continues to be a top priority for the Administration.

For more Cybersecurity Legal News, click here to visit the National Law Review.

©2022 Bergeson & Campbell, P.C.

Episode 5: What’s New In Law Firm Thought Leadership? with Alistair Bone, Vice President for Passle

Welcome to Season 2, Episode 5 of Legal News Reach! National Law Review Web Content Specialist Shelby Garrett sits down with Alistair Bone, Vice President with Passle,  to catch up on the latest in law firm thought leadership trends. What are four strategies for content marketing success? How can current events play a role in brand development? And why is thought leadership more important—and competitive—than ever?

We’ve included a transcript of the conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for clarity and readability.

Shelby Garrett

Thank you for tuning in to the Legal News Reach podcast. My name is Shelby Garrett, Web Publication Specialist with the National Law Review, and in this episode I’ll be speaking to Alistair Bone, Vice President for Passle. Would you mind sharing a bit about your background in legal and what you do at Passle?

Alistair Bone

Thank you very much for having me on, firstly, it’s nice to be kind of the interviewee as opposed to the interviewer. Typically, as you might have come across, there’s the CMO Series podcast at Passle and I’ve been heavily involved with that, which is always enjoyable, so nice to be here. A little bit of background for me is that I was previously a professional sportsman playing rugby, I was very fortunate to have done that. But sadly, that all came to an end about three years ago. I then went into headhunting in the world of law, which kind of sparked the initial interest in law firms and professional services. And I learned a huge amount there. But then my sort of interest was really sparked in technology and how that can kind of really enable law firms to further what they’re doing. And that’s where Passle came along. For me, I love relationships, I love meeting people, I am very much a people person, and this kind of seemed to bring all those different worlds together for me. So yeah, that’s kind of how I ended up Passle, and I’m absolutely loving what I’m doing here.

Shelby Garrett

Yeah, I’m really excited to speak with you today. Passle sounds like an amazing tool for professionals, content creation can be an extremely overwhelming process and I think that Passle really removes those roadblocks and kind of simplifies the whole process so that professionals can easily share their expertise

Alistair Bone

Bang on, I mean Passle is a software that has been used by professional services. As you mentioned, we work with Magic Circle firms, Am Law 100, the Big Four accountancies, and fundamentally it’s a platform that makes that critical challenge of demonstrating the firm’s expertise, getting it out to the market nice and quickly and effectively and fundamentally enjoyably.

Shelby Garrett

Amazing, let’s get into a little bit of discussion about thought leadership. Could you give us a nice little definition and why it’s currently a priority for law firms?

Alistair Bone

Yeah, of course, it’s a really nice place to start and hopefully I can give a little bit of an overview. When you come to sort of thought leadership, you know, in professional services, being able to demonstrate your firm’s knowledge and value to the market is really key. Thought leadership definitely sits at the heart of all successful professional service marketing. Really, when you start thinking about it, nearly every growth initiative, business development target, or marketing activity centers around how well that firm can demonstrate the knowledge of its experts. Fundamentally, they want to put out that knowledge to the market. Now, when you start to consider that in terms of what’s happening, we’re really seeing that shift of firms becoming far more global, and certainly more digital. So therefore they’re really starting to prioritize that expertise online and really invest into the thought leadership infrastructure. That said, it’s not happening with everybody. But of the general sort of trends, what we’re really seeing is that the places that have really proved progressive, CMOs are doing very well with it, but also firms are trying to really sort of position themselves in a space or a city and sort of elevate what they’re doing. So hopefully, that’s a nice little bit of an overview of sort of thought leadership and what we’re seeing in the world right now.

Shelby Garrett

When firms start to look into thought leadership, what are ways for them to measure their success, in really cultivating that?

Alistair Bone

So when it comes to how they’re able to sort of really prioritize their thought leadership and what they’re doing, there’s definitely a few reasons sort of behind that in terms of how they can kind of start to prioritize it, and why they might be prioritizing it. For some firms, it’s sort of central to their ethos in their output of what they’re trying to achieve. So if you take, for instance, Reed Smith, they are a global player, they see themselves as a global player in the market, and they want to be first to the market in terms of commenting on what’s happening now, what are those new initiatives, what’s changing in the marketplace. So that’s one way that people are doing it. Again mentioned sort of beforehand, but it can be just that people are wanting to sort of position themselves in a space where they see a really big opportunity. As all law firms know, their clients are really hungry to understand what’s happening in their various markets. And something that at the moment, we’re really seeing that sort of trend of why people are prioritizing it is areas such as your ESG, or your E-Sports are really nice places that people can focus their thought leadership and elevate the sort of teams around that.

A different example is actually, you know, we’ve just launched with Goulston & Storrs, who are a Boston based firm, they’re very established there, but they really want to be recognized in the New York market. And so again, for them thought leadership’s going to be key there to kind of really elevate themselves. So hopefully that’s kind of a nice little bit of a wrap up. I think the other thing that we really noticed with people prioritizing their thought leadership is, we on an annual basis do something called the Digital Performance Index. Now we take a look at a whole host of online activity from law firms, you know, right through from their website, how they’re performing on LinkedIn, etc. And naturally being a thought leadership expert, so to speak, we focus in on that and what we see there is that a lot of firms really sit in sort of amongst their competitors in an area that we would really say is fierce competition. The average attorney in the US and the UK creates one piece of thought leadership a year. So again, firms who want to get themselves out of that fierce competition to be seen as a category leader as kind of mentioned previously, they’re the ones that that are sort of starting to prioritize thought leadership.

Shelby Garrett

Sounds like the measure of success might vary depending on what the goals of the firm are. But is there anything that you’ve noticed that separates successful thought leadership programs from ones that are struggling?

Alistair Bone

Yeah, certainly, I think when you start to measure in what actually makes a successful thought leadership program, as said before, like, those are the reasons that maybe are what made people want to do it. But what’s going to make it successful? I think, before maybe answering that, it’s worth talking about what is a thought leadership program, because it might differ for people. But fundamentally, you know, it’s that sort of concerted effort by firms to demonstrate their expertise to the market. So we’re really fortunate that we get to work on a global scale with the likes of Freshfields, Deloitte, and they’re all having really huge success. On the flip side, we also see what doesn’t work. But fundamentally, success comes down to what we call the four pillars. Within those four pillars, there is the author, there is governance, there’s something that we call “Create Once and Publish Everywhere,” and then your feedback. So that’s a little bit of maybe an introduction in sort of that thought leadership and what makes it successful.

When it comes to considering the author, if we take the first pillar, you really want to ensure that your thought leadership is author-centric when you’re making that publication. So how can you empower them and motivate your authors, your lawyers, your consultants to create that content in a really easy sort of well understood way? The second pillar would be governance. And so it’s really important to be able to make sure that there’s no friction in the process of actually creating the content. So you know, how do you get those nice, quick, efficient approval processes for the content you’re putting out there, you know, making it a matter of hours, as opposed to days? Because you want to be timely, you want to be putting it out there in a really nice format that’s responding to what’s happening in the market. When we come on to “Create Once and Publish Everywhere,” there’s a really nice term we like to refer to, “Cope.” So it’s about actually, you know, how are you guaranteeing the reach of that content, you know, you’ve created this great piece of thought leadership, where’s it going from there? So of course, you know, the lawyers have really strong networks on LinkedIn, it’s a really nice place to push that out. But equally there’s all the sort of online publications. There’s obviously yourself, the National Law Review, great place, you know, want that content on there. But also, if I hope you don’t mind me mentioning, there’s obviously JD Supra, Mondaq, Lexology—again, nice places that you want your content on. So again, how can you really push that out to the market? And then finally, there’s feedback. And in some ways, once you’ve done all of the above, this is actually the most critical part because there’s no point in creating thought leadership and that content and pushing it out there if people don’t know the benefit of what they’ve done. And actually, it’s got to be in a nice layered way. Because when you think about it, there’s multiple stakeholders who want to understand the feedback. So if we take the authors, you know, that’s very personal, they want their clients, they want their prospects, they want to know who’s been engaging with it. If you take it from the firm’s perspective, the management know, they’re probably looking at that bottom line, you know, who’s bringing in the money for them? So are they getting engagement from those key people? And the third and final sort of layer is actually the marketing business development. So again, when you have a look at all of that feedback put together, that starts to demonstrate the success of all of that time that you’re investing into it. So yeah, hopefully, that’s a nice way to understand it. But fundamentally, success comes with aligning themselves to those four pillars and making sure you’re doing each in the best way possible. And that’s what gets, you know, a real virtuous circle of content creation going.

Shelby Garrett

Amazing, that was really great context and a really full theory of success. For firms that might be looking to really transform their thought leadership programs, is there a good place to start? We talked about the four pillars. Is there one first step that they can really use to jumpstart this?

Alistair Bone

I think there’s a few different places that they can start with, but in some ways, it’s actually quite simple. I’ve mentioned those four pillars there, and actually it’s about assessing those four pillars. Are you engaging your authors? You know, is it very easy for them, if you remove those barriers to entry to make sure that they can create their content? Again, when it comes to governance, you know, have you addressed those workflows? Is it again, a simple process for them to be able to actually create that content? And then get that out there? Once it’s done, where are you putting it out? And finally that feedback, are you actually providing feedback to people? I think by taking that step back and taking a look at the sort of overall process of your thought leadership program, and looking at those four pillars, that really allows you to then hone in on actually, “Okay, we’re not enabling and empowering our authors to create content. That’s why it’s not actually happening. So therefore, we need to do that and then we can start to go from there.” It may be that you’re doing all of this, but there’s no feedback. You know, maybe you give something small once a year. I know that if I was doing something I’m putting time and effort into and I got no feedback and didn’t really know the value that I was adding to people, then I probably wouldn’t want to continue doing it. So again, it’s just a nice way to kind of really address it. So I think that’s a really nice place for people to start when it wants to come to, you know, transforming their thought leadership program, or even beginning it.

Shelby Garrett

Yeah, that’s a really great point. I feel like there’s a lot of excitement when starting something new, but you have to take that kind of honest and realistic assessment of what you currently have going on to develop that full game plan. Thank you. That was amazing.

We talked about measurements of success, but are there additional tools and resources that are available for firms that are looking forward to making these changes?

Alistair Bone

I mean, if you look at it from our perspective, on the Passle website, I mentioned it at the top, but the CMO Series podcast is a really nice place for anybody at any level in smart marketing and business development to listen to what’s happening in the market be it from, you know, what it’s like to be a new CMO, be it data, developing your team. So that’s a really nice resource hub. If you think about thought leadership, we have various resources in terms of one-pagers that you can come on, and you can learn a little bit more around what’s happening. Similarly, feel free to reach out, you know, we’re always here to have conversations and discuss what we’re doing here at Passle and how we’re helping a number of different firms with their thought leadership programs and forming that infrastructure for them as they move forward.

Shelby Garrett

Absolutely. Yeah, your website is a great resource, I listened to a couple of those podcasts and you guys have quite the range of guests as well, that are very happy to share their expertise, which is great.

Alistair Bone

Yeah, we’re really fortunate from that perspective. And it’s been a really nice thing to do. I say, normally, I’m sat interviewing people, but it allows myself and my colleagues to ultimately make some great friends throughout the legal world. So it’s been a real success.

Shelby Garrett

Yeah, with those connections you’ve definitely built a lot of knowledge that’s accessible for people in that podcast as well, which is wonderful.

Moving away from the firm focus, but kind of looking at more of a macro lens, what are some of the current trends that are happening in law firm thought leadership programs?

Alistair Bone

I think, you know, if we take it back to the start, the biggest trends that we’re noticing is just people, one focusing on key areas. So, you know, be it new practice areas, such as their ESG, or their E-sports, that’s where people are certainly starting to focus in on. I think the other place is that people are looking at it as career development, which is a really nice place to, you know, help elevate what attorneys and lawyers are doing, as they kind of come through that natural path where you become associate, senior associate, you’re not necessarily doing a lot of business development until you get to partner. So again, it’s a nice chance for you to start to be seen in the network and be seen as those experts. The other place that I think people are starting to focus in on is realizing that there’s always a place for your big white papers. They’re fantastic. There’s so much time, effort, money goes into them. They provide a huge amount of knowledge, but what the market wants on the whole, and certainly what us as individuals out there want in this world now is that nice, short, digestible, timely content. So actually, you don’t want to be writing much more than maybe sort of 200, 500 words. So again, that’s a nice shift that we’re starting to see that people understand that value from that perspective.

Shelby Garrett

 Yeah, absolutely. I have a background in public libraries and having this information available online with these different topics is just so valuable for everybody sharing that information, and your expertise.

Alistair Bone

It’s that chance to kind of dip into different areas of people’s expertise. You know, something’s changed and, you know, the interest rates have moved here in the UK, how’s that affecting your mortgage rate? And what’s the law behind that? Or, you know, unfortunately, there was the big storm, you know, Hurricane Ian down in Florida recently, you know, maybe an employment lawyer might want to put out some recent content or something around, “What are your employment rights around working from home?” or whatever it might be. So it’s a really nice way to kind of start engaging with people, you know, don’t have to look at it in the lens of simply being the law and client alerts and that sort of thing. So as you said, you can dip into these different things and learn something.

Shelby Garrett

Yeah, absolutely. The new iOS update for Apple with the ability to delete text messages and e-Discovery that’s, like, so intriguing to me. And yeah, just as like a public person. I think that’s like, extremely interesting.

When we’re looking at all of these big changes, like you’ve mentioned the hurricane, have you seen law firms kind of shift their content marketing approaches, in light of that?

Alistair Bone

I think on the whole, we are seeing people just start to engage in maybe a slightly different way. I mean, I’ve been fortunate enough on some of those podcasts to have great conversations with people in the industry for a long time and they kind of talked about what they’ve seen the marketing functions of law firms do and the real shift. But I think now people are starting to realize that ultimately it really is about elevating your attorneys and what you’re doing and therefore how can you push out, ultimately their knowledge? I think the other thing to consider in the world we’re all now living in is that a lot more people will be working from home, you know people, or law firm should I say spend a huge amount of money on the infrastructure of offices, office spaces, people aren’t necessarily coming into it, you’re not necessarily having your clients come into it so that online presence is becoming ever more important. So again, what you’re putting out there on the website, what your attorneys are able to do, what your consultants are able to do becomes that bit more important. So yeah, there’s definitely I think that more of a shift online to being able to elevate what people are doing.

Shelby Garrett

Yeah, that kind of ties into with the smaller or the shorter pieces that are being created, you could kind of shift your topics more quickly. Looks like we are nearly coming to a close. But I do want to pull this all together and talk about where Passle exactly fits in and helping these law firms create and share their thought leadership. I know you kind of walked us through the tool that you guys have and your Chrome plugin previously. But if you could explain that a little bit more for our listeners?

Alistair Bone

Sure, well, I’ll give a very brief overview of how Passle works for people who don’t know. Passle is a piece of software that quite simply goes onto the laptop. And as they removed all the barriers of entry for the attorneys, the consultants, your experts to create the content. So it can be used in a host of different ways. Not only you can write content but you can do your podcasts, you can do your videos, you can host PDFs, you can embed different content, there’s so much that you’re able to do with it. And once you’ve got over the fundamental hurdle of people being able to create the content, you can then do a host of different things then in terms of starting to form that infrastructure on the website. So be that plugging into the attorneys’ profiles or consultants’ profiles, plugging it into the practice areas. Yeah, kind of the world’s your oyster, once you get up and running with it, which is, which is really cool. If you want to launch with Passle, the way that we always do it, because we know this is tried, tested, and works incredibly well is we do a Proof of Value that we run over the course of two months. It’s all about that behavioral change, you know, taking a group of 20, 25, attorneys, consultants, experts within your firm, and getting that shift of going from, “I don’t understand thought leadership, I don’t know how to create content, I don’t necessarily want to, I haven’t done it before,” to overnight, shifting them into actually understanding the benefits that come from thought leadership and what they can do with it. So that’s kind of the launch process. I don’t want to bore people too much with it. But hopefully, that’s a bit of an overview of Passle and where it kind of plugs in. But it’s a very exciting time for us. And we’re very fortunate to be working with some of the world’s global firms and some real leading players there.

Shelby Garrett

Yeah, absolutely. I, when you were talking about the four pillars, I certainly could immediately connect it to what you were showing us earlier through your demonstration.

Alistair Bone

I think that’s the thing with Passle is that once you have the opportunity to see it, everything clicks, and you understand the value that it’s going to bring and how easy it is because it’s not just on the attorney side. If you take the marketing, the BD, the communications team, we obviously elevate everything that they’re doing and make it very easy for them. But also because it’s all focused in on one sort of screen. You know, when you have that Passle posts, that completes the content you’ve created approved, the marketing, the BD teams get a notification, it’s all in one place, they can top and tail it, do what they want to before it’s going live on to the website. So you remove that arduous process of back and forth again, which is a really nice place to be. So it’s not just about the attorneys. It’s actually about the marketing, the BD, comms teams and elevating everything they’re doing as well.

Shelby Garrett

It certainly is daunting for lawyers to create their own content. And it’s a large task and Passle makes it a bit of a smoother process I think, at least from what I’ve seen.

Alistair Bone

Everybody has the impostor syndrome, whatever you do. Once you get over that hurdle, you know, it’s pretty smooth sailing.

Shelby Garrett

Yeah, absolutely. How has Passle’s technology been able to help firms succeed over the years? I know we’ve covered it throughout. But if you could really like, bring that all together in a nice little package for us?

Alistair Bone

Yeah, sure. I think what might be the best thing to do, and I thought it might be able to answer it earlier but didn’t have the chance to was, you know, what actually makes a successful thought leadership program? So maybe if I can demonstrate some of the successes people have had, that kind of demonstrates what’s happened over the years. I think success can be defined in multiple ways for different people in terms of what your ultimate outcome is from a thought leadership program. But what we’ve seen is it really differs over time. So in the initial instance, you know it’s that overnight change the behavior change in in the attorneys, you know, you go from individuals never having created content to writing and understanding value. We launched with a law firm here in London called Forsters. One of my fantastic stories I absolutely love from it was one of their senior partners who didn’t like technology, had never used it, didn’t want to engage with it was part of our launch, the Proof of Value. Not only did he write four pieces of content, which again was a huge change, he started using LinkedIn. And even then he got himself an Instagram account, because he understood the value of technology all of a sudden, obviously slightly different to your work stuff. But again, a really nice story of kind of people seeing that change. You then kind of start to look at what’s happening over the next couple of months. And as you get deeper into that sort of thought leadership program, and more success starts to come in terms of the impact on people’s diaries. You know, they’re starting to have conversations with clients, they’re starting to meet prospects, you know, they get engaged with all of the right people. Additionally, and I sort of want to touch on it, as well is there’s that career development I mentioned earlier when you were sort of saying some of the trends, but there’s a real understanding for sort of the associates,  senior associates of how they can help develop their career. So again, a really nice example there was there’s a lawyer, a senior associate called JJ Shaw at a firm called Lewis Silkin in the sports team there and he was sharing with us that actually, you know, from creating content, putting it out there to his network, he started to have people come back to him asking him to post panels to sit on different talks, which is amazing, because all of a sudden, he’s being seen as that go-to expert, and people are actually engaging with what he’s doing. So again, a really nice development tool. And then I just think longer term, it’s fundamentally about winning business. And once you start winning the business, everything you’re doing with that big thought leadership program makes sense. So again, we’ve got a lot of anecdotal examples. One that I know I can share with the public was from Alvarez & Marsal, one of the big US consultancies, and we were fortunate enough to sit down with Linda Orton, who’s the former CMO there. And she shared with us that Mike Carter, who was again, a former Senior Director there had done this post around anti-money laundering, he put it onto LinkedIn, she’d actually invested a little bit of spending into that to sort of elevate what was happening, you know, something like 50 quid, not a huge amount of money. That then led to a conversation, which then led to business and over the past couple of years, that’s actually generated 12 million in revenue. So all of a sudden, admittedly, there’s a whole host of work that went into that. But it’s that understanding that by being seen as those go-to experts elevating what you’re doing, you know, the business starts to come. So hopefully, you know, I know, I’ve broken it down there, but that gives an idea of how actually, we’ve helped firms over the years, and particularly now, just really forming that thought leadership infrastructure for people.

Shelby Garrett

Yeah, amazing. I can certainly see the building the confidence aspect of the technology that you have making it simplified, but also seeing those results really would build your confidence in creation.

Alistair Bone

And it spans throughout firms, because someone else sees that and they want to get involved and do something around it. So it’s really nice.

Shelby Garrett

Yeah, it’s wonderful. Before we wrap up today, are there any final thoughts that you would like to share with us?

Alistair Bone

There’s probably one or two, I just want to keep it really succinct. I think just the main thing is that thought leadership really is for everybody, and is something that everyone should be considering at the moment, I think, whether it’s that you’re really wanting to stand out in a specific field or elevate some of the great work that you’re already doing, you know, whether that is the marketing or BD teams or for the attorneys, there’s so much that you can invest into it. And you know, that online presence has never been more important. So I think those two things are probably the key takeaways for me that hopefully it resonates with people as they listen to this. And you know, if there’s anything that you want to do in terms of understanding more than please feel free to obviously reach out to me via email or on LinkedIn or equally you can visit home.passle.net. There are plenty of places that you can get some information, but hopefully this has been some worthwhile information for people to listen to.

Shelby Garrett

We can’t thank you enough for joining us today and sharing your thoughts. Thank you to our listeners as well for tuning in. We will see you all next time.

Conclusion

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Copyright ©2022 National Law Forum, LLC

Buying, Selling, and Investing in Telehealth Companies: Navigating Structural and Compliance Issues

A multi-part series highlighting the unique health regulatory aspects of Telemedicine mergers and acquisitions, and financing transactions

Investors in the telehealth space and buyers and sellers of telehealth companies need to account for a set of health regulatory considerations that are unique to deals in this sector. As all parties to potential telehealth transactions analyze their long term role in the telehealth marketplace, two of the central issues to any transaction are compliance and structure – both in terms of structuring the telehealth transaction itself and due diligence issues that arise related to a target’s structure.

The COVID-19 pandemic, combined with strained health care staffing and provider availability, have accelerated the growth of the telehealth, and start-ups and traditional health systems alike are competing for access to patient populations in the telehealth space. However, as we adjust to life with COVID-19 as the norm, the expiration of the federal Public Health Emergency (PHE) looms, and the national economy contracts, we expect that the remainder of 2022 and into 2023 will see consolidation as the telehealth market begins to saturate and the long-term viability of certain platforms are tested. Telehealth companies, health systems, pharma companies and investors are all in potential positions to take advantage of this consolidation in a ripening M&A sector (while startups in the telehealth space continue to seek venture and institutional capital).

This is the first post in a series highlighting the unique health regulatory aspects of telehealth transactions. Future installments of this series are expected to cover licensure and regulatory approvals, compliance / clinical delivery models, and future market developments.

Telehealth Transaction Structure Considerations

The structure of any given telehealth transaction will largely depend on the business of the telehealth organization at play, but also will depend on the acquirer / investor. Regardless of whether a party is buying, selling or investing in a telehealth company, structuring the transaction appropriately will be important for all parties involved. While a standard stock purchase, asset purchase or merger may make sense for many of these transactions, we have also seen a proliferation of, affiliation arrangements, joint ventures (JV), alliances and partnerships.  These varieties of affiliation transactions can be a good choice for health systems that are not necessarily looking to manage or develop an existing platform, but instead are looking to leverage their patient populations and resources to partner with an existing technology platform. An affiliation or JV is more popular for telehealth companies operating purely as a technology platform (with no core business involving clinical services being provided). For parties in the traditional healthcare provider sector that provide clinical services, an affiliation or JV, which is easier to unwind or terminate than a traditional M&A transaction, can allow the parties to “test the waters” in a new, combined business venture. The affiliation or JV can take a variety of forms, including technology licensing agreements; the creation of a new entity to house the telehealth mission, which then has contractual arrangements with the both the JV parties; and exclusivity arrangements relating to use of the technology and access to patient populations.

While an affiliation or JV offers flexibility, can minimize the need for a large upfront investment, and can be an attractive alternative to a more permanent purchase or sale, there can be increased regulatory risk. Entrepreneurs, investors, and providers considering any such arrangement should bear in mind that in the wake of the COVID-19 pandemic and proliferation of telehealth, the Office of Inspector General of the Department of Health and Human Services (HHS-OIG) has expressed a heightened interest in investigating so called “telefraud” and recently issued a special fraud alert regarding suspect arrangements, discussed in this prior post. Further, the OIG’s guidance on contractual joint ventures that would run afoul of the federal Anti-Kickback Statute (AKS) should be front of mind and parties should strive to structure any affiliation or JV in a manner that meets or approximates an AKS safe harbor.

Target Telehealth Company Structure Compliance

Where telehealth companies are providing clinical services, and are not purely technology platforms, structuring and transaction diligence should focus on whether the target is operating in compliance with corporate practice of medicine (CPOM) laws. The CPOM doctrine is intended to maintain the independence of physician decision-making and reduce a “profits over people” mentality, and prevent physician employment by a lay-owned corporation unless an exception applies. Most states that have adopted CPOM impose similar restrictions on other types of clinical professionals, such as nurses, physical therapists, social workers, and psychologists. Telehealth companies often attempt to utilize a so-called “friendly PC” structure to comply with CPOM, whereby an investor-owned management services organization (“MSO”) affiliates with a physician-owned professional corporation (or other type of professional entity) (a “PC”) through a series of contractual agreements that foster a close working relationship between the MSO, PC, and PC owner and whereby the MSO provides management services, and sometimes start-up financing. The overall arrangement is intended to allow the MSO to handle the management side of the PC’s operations without impeding the professional judgment of the PC or the medical practice of its physicians and the PC owner.

CPOM Compliance Considerations and Diligence for Telehealth Companies

A sophisticated buyer will want to confirm that the target’s friendly PC structure is not only formally established, but is also operationalized properly and in a manner that minimizes fraud and abuse risk. If CPOM compliance gaps are identified in diligence this may, at worst, tank the deal and, at best, cause unexpected delays in the transaction timeline, as restructuring may be required or advisable. The buyer may also request additional deal concessions, such as a purchase price reduction and special indemnification coverage (with potentially a higher liability limit and an escrow as security). Accordingly, a telehealth company anticipating a sale or fund raise would be well served to engage in a self-audit to identify any CPOM compliance issues and undertake necessary corrective actions prior to the commencement of a transaction process.

Below are nine key questions with respect to CPOM compliance and related fraud and abuse issues that a buyer/investor in a telehealth transaction should examine carefully (and that the target should be prepared to answer):

  1. Does target have a PC that is properly incorporated or foreign qualified in all states where clinical services are provided (based on the location of the patient)?
  2. Does the PC owner (and any directors and officers of the PC, to the extent different from the PC owner) have a medical license in all states where the PC conducts business (to the extent in-state licensure is required)? To the extent the PC has multiple physician owners and directors/officers, are all such individuals licensed as required under applicable state law?
  3. Does the PC(s) have its own federal employer identification number, bank account (including double lockbox arrangement if enrolled in federal healthcare programs), and Medicare/Medicaid enrollments?
  4. Does the PC owner exercise meaningful oversight and control over the governance and clinical activities of the PC? Does the PC owner have background and expertise relevant to the business (e.g., a cardiologist would not have appropriate experience to be the PC owner of a PC that provides telemental health services)?
  5. Are the physicians and other professionals providing clinical services for the business employed or contracted through a PC (rather than the MSO)? Employment or independent contractor agreements should be reviewed, as well as W-2s, and payroll accounts.
  6. Is the PC properly contracted with customers (to the extent services are provided on a B2B basis) and payors?
  7. Do the contractual agreements between the MSO and PC respect the independent clinical judgment of the PC owner and PC physicians and otherwise comply with state CPOM laws.
  8. Do the financial arrangements between the MSO, PC, and PC owner comply with AKS, the federal Stark Law, and corollary state laws and fee-splitting prohibitions, to the extent applicable?
  9. Is the PC owner or any other physician performing clinical services for the PC an equity holder in the MSO? If so, are these equity interests tied to volume/value of referrals to the PC or MSO (i.e., if the MSO provides ancillary services such as lab or prescription drugs) or could equity interests be construed as an improper incentive to generate healthcare business (e.g., warrants that can only be exercised upon attainment of certain volume)?

Telehealth companies considering a sale or financing transaction, and potential buyers and investors, would be well served to spend time on the front end of a potential transaction assessing the above issues to determine potential risk areas that could impact deal terms or necessitate any friendly PC structuring.

Article By Hannah E. Zaitlin, Mitchell D. Lindstrom, David S. Sanders, and Natasha Allen of Foley & Lardner LLP

For more health law legal news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

The Do’s and Don’ts of Data Cleaning – Don’t Drown in Bad Data

Bad CRM data can compound exponentially, impacting marketing and business development. It’s essential to understand the scope of  your data problems and follow a plan for regular data cleaning.  

Have you ever heard the saying, “No man ever steps into the same river twice”? Because a river’s water is constantly flowing and changing, the water you step in today will be different from yesterday. The same is true for the data in your CRM system: people are constantly changing roles, relocating, retiring; companies are opening, closing, moving and merging.

On top of that, new data isn’t always entered correctly. As a result, a database with clean, correct information today will not necessarily be accurate tomorrow. Over time, this bad data can compound exponentially, resulting in ineffective marketing, events and communication campaigns because as your data degrades, you reach fewer members of your target audience.

For professional services firms, poor data quality in your CRM system can also translate into a decline in system adoption. Once your professionals see bad data, they won’t trust the system as a whole and ultimately may outright refuse to use it. This is why we stress the importance of ongoing data cleaning.

Data Cleaning Do’s and Don’ts

Simply put, data cleaning involves identifying incorrect, incomplete and/or dated data in your systems and correcting and enhancing it. If you have a large database with thousands, or hundreds of thousands, of records, the data quality process can seem daunting and overwhelming.

While there’s no magic bullet or quick fix for poor data quality, ignoring data problems until there’s a crisis is not a strategy. Good data quality requires ongoing effort that never ends. The good news is that this means you have forever to get better at it. So, start now. Begin by assessing the scope of your data quality issues. Then, because it’s not always cost-effective or even possible to clean all your data, start by focusing on the highest priority projects.

Identify and Prioritize Your Most Important Data

All contact records are not created equal. For instance, client data is typically more important than non-client data. Additionally, individuals who have recently subscribed to your communications or attended an event are more important than those who last interacted with your firm years ago. Whatever segmenting scenario you select, it’s important to find ways to divide your contact data into manageable pieces because it makes the process more manageable and allows you to better measure progress.

Eliminate Stagnant Records

Related to prioritizing your data, don’t be hesitant about removing records that have been inactive for an extended period. Search your system for contacts that have not been updated for a few years, are not related to or known by any of your professionals, are not clients or alumni, and have not opened a communication or invitation in two to three years. Chances are good these records are not only outdated but also may not be worth the resources it would take to update them. Identify these records and consider removing them from the system. Less mess in your database makes cleanup a bit more manageable.

Your Plan Is Your Life Preserver

Once you’ve prioritized subsets or segments of contacts, identifying and prioritizing your most common data errors can help you decide on the best way to tackle ongoing data cleaning. For example, if you have an important email that needs to be sent to clients, you need to focus on email addresses. Identify records that don’t have an email address, have incorrectly formatted email addresses or have bounced recently.

In addition, if there are contacts you haven’t sent a communication or invitation to for an extended period of time, it’s entirely likely that their email may no longer be valid. It’s important to regularly test emails on your lists because not doing so can cause you to be blacklisted by anti-spam entities or have your account blocked by your eMarketing provider.

Initial Cleaning Cycle

The best place to start your data cleaning cycle is with a contact and list verification and cleansing service such as TrueDQ. This service will evaluate your list data, identify potentially harmful “honeypot” email addresses and even automatically update many of your contacts with current, complete contact information. The data can then also be enhanced with additional missing information, such as industries and locations, to help with targeting and segmenting.

Rinse and Repeat

When one segment or list has been cleaned, move on to the next one – bearing in mind that what’s important on the next list may be different from the last one. For example, maybe you need to send a hard copy postal mailing, so it will be important to ensure the accuracy of physical mailing addresses rather than email addresses.

Bounces and Returns

One of the most common data quality failures at law and other professional services firms is ignoring bounced emails and returned hard copy mailings. Bounces and returns are real-time indicators that can help you keep on top of your data quality. Researching and correcting them is important because sometimes they involve important former clients who could potentially hire the firm again at their new company.

Returned hard mail will often include the forwarding address of the recipient, which should be corrected in your CRM. For emails, use a central email address to collect automatic email replies, since these frequently tell you when a recipient no longer works at an organization.

Ideally, data stewards should regularly review all bounces to take the onus off the professionals. However, it can also be helpful to generate reports on bounced communications and circulate them to professionals or their assistants who may be able to provide updated information – or will at least appreciate knowing which of their contacts have moved on or changed roles.

Finally, if your eMarketing and/or CRM system has a process for automatically isolating bounced records, be sure you have a reciprocal process that automatically reinstates bounced records when the email field is updated.

Prevent Invalid Data

There are multiple ways to encourage good data habits, depending on your system and method of contact entry. If your firm relies on manual data entry, implement a firmwide Data Standards Guide to inform users how data should be entered (e.g., does your firm spell out or abbreviate job titles?). It can also be helpful to use system validation rules wherever possible to require certain information in new records such as last name, city and email address to ensure your contacts are relevant.

Finally, regularly review newly added records for consistency and completeness. This process can reveal issues such as users who may require additional training on contact input best practices. It can also help to catch spam or other potentially dangerous entries that can sometimes flow into your database from online forms that are filled out by bots.

Never, Ever Stop

Just as rivers keep flowing, so does the data in your CRM system – and the data will always need cleaning to ensure that it is fresh. While this may feel like a relentless and burdensome task, never stop – just go with the flow –  because when you’re not regularly cleaning the data, your CRM “river” can become stagnant, and the more polluted it becomes, the longer the eventual cleanup will take.

Article By Christina R. Fritsch JD and Rachel Fields of CLIENTSFirst Consulting

For more business of law legal news, click here to visit the National Law Review.

© Copyright 2022 CLIENTSFirst Consulting

ADA Compliance for Law Firm Websites in 2022

Legal reasoning involves applying the law to the facts to determine the rights and duties of those involved in a situation. Lawyers frequently take the position that the application of rules should settle disputes and that policies will be considered, if at all, only when there is a high degree of uncertainty surrounding the applicability of the rule. The lawyer might take the position that it is always preferable to seek the result that would further the underlying policies, even if that result would be contrary to the clear language of the rules.

But what if no explicit rules currently exist?

That is the issue with website compliance under the Americans with Disabilities Act (ADA). The Act does not offer specific guidelines to follow; however, websites are expected to be easily accessible to everyone, including those who are disabled. The failure to create an ADA-compliant website could expose an organization to discrimination lawsuits, financial liabilities, and severe damage to its reputation.

What is the ADA?

The ADA compels certain businesses, including banks, hotels, restaurants, public transit, law firms, and others to make accommodations for people with disabilities. According to the National Law Review, the Act is divided into three parts:

  • Title I prohibits employers from discriminating against employees based on disability and requires them to provide reasonable accommodation to certain employees under specific circumstances.
  • Title II covers state and local governments.
  • Title III covers “places of public accommodation,” which the ADA does not define, but are generally private businesses or organizations that provide goods, services, facilities, privileges, or accommodations to the public. These places commonly include schools, restaurants, health care providers, social service agencies, law firms, and more.

The ADA is commonly associated with physical locations and the accommodations that certain businesses must make for people with disabilities, which include wheelchair accessibility, reserved parking, and service animals. Companies that fall under ADA Title I and operate 20 or more weeks per year with at least 15 full-time employees, or Title III – those that fall under the category of public accommodation – must be ADA-compliant.

Although physical “brick-and-mortar” locations are nearly always considered places of public accommodation, the debate is ongoing as to whether a business’s website is a place of accommodation. If so, the digital content must be accessible to all users.

A law firm website must be designed so that those who are disabled can access it easily to comply with ADA requirements. While there are no well-defined regulations that describe precisely what an ADA-compliant website should include, businesses that fall under ADA Title I or ADA Title III are required to develop a website that offers “reasonable accessibility” to people with disabilities.

Compliance Tools & Plugins

Because the ADA doesn’t offer specific guidelines for website compliance, many organizations follow the Web Content Accessibility Guidelines 2.0 (WCAG), updated to 2.1 in 2018. While WCAG isn’t a legal requirement, its requirements have been followed in the European Union and other nations since 1999 and still serves as a reference for businesses that want to improve accessibility to their website.

Under WCAG 2.1, website accessibility concerns generally fall into four groups. These include issues that are:

  • Perceivable – issues that affect users’ ability to locate and process the information on a website, e.g., many visually-impaired individuals use screen readers to distinguish between the text and the background to help them navigate online content.
  • Operable – challenges that impair users’ ability to navigate a site, e.g., functions and navigations such as online forms should be accessible via keyboard-only commands, and users who need additional time to complete them should be allowed to do so.
  • Understandable – users should be able to comprehend the information on the site, e.g., error messages that provide an explanation and directions for correcting an error should be offered.
  • Robust – can be interpreted by various devices and platforms according to the varying needs and abilities of users, e.g., the alt text that should pop up to let users know what it is when read by assistive technology when they hover over an image.

Here are more suggestions regarding what to include to help ensure ADA website compliance:

  • “Alt” tags for every media file and map
  • Descriptive HTML tags for online forms
  • Hyperlinks with descriptive anchor text
  • “Skip navigation” links on all website pages
  • Heading tags to organize text
  • Accessible PDF files
  • Subtitles, transcripts, and audio descriptions for videos
  • Accessible fonts for all applications
  • HTML tables with column headers, row IDs, and cell information
  • Captions written in English for audio files
  • Call-to-action buttons with easily accessible names and ARIA labels
  • A website accessibility policy
  • Easy to find contact information

Meeting these guidelines will make a firm’s website more accessible to those with vision or hearing impairments, as well as cognitive, language, or learning disabilities.

Court Rulings Regarding Website ADA Compliance

According to the American Bar Association (ABA), the number of accessibility-related lawsuits filed against websites has increased dramatically in recent years. Plaintiffs are basing these lawsuits on two legal theories:

  1. Title IIIs “equal access and general nondiscrimination mandate
  2. A requirement that places of public accommodation must provide auxiliary aids and services as necessary (for no extra charge)

Although neither Title III nor its regulations mention websites and mobile applications, the phase “auxiliary aids and services” includes “accessible electronic and information technology,” which covers websites and mobile apps.

ADA Title III Lawsuits Filed Each Year Graph
Image by Seyfarth via adatitleiii.com

A recent ABA analysis of court filings related to ADA website compliance found:

  • Federal courts across the country were inundated with more than 8,000 website accessibility lawsuits between 2017 and 2020.
  • In 2020, three states – New York, Florida, and California – brought more than 85 percent of all the ADA website compliance lawsuits.
  • Since 2018, website and mobile app accessibility disputes have accounted for approximately 20 percent of all ADA Title III cases initiated in federal courts, which now regularly exceed 10,000 suits each year.

These statistics do not consider a significant number of website and mobile app cases pursued in state courts, cases settled before filing in court, and DOJ enforcement proceedings that are resolved prior to court filing.

Here are some examples of court rulings related to ADA compliance and websites:

Gil v. Winn-Dixie Stores Inc.

In June 2107, a Florida court ruled in favor of a blind plaintiff who brought an ADA violation lawsuit against Winn-Dixie. The man claimed that aspects of the supermarket chain’s site weren’t compatible with screen readers, leaving him unable to order his medications online or download rewards cards. The trial court agreed that the website was inaccessible to those with impaired vision and ordered that it be brought into compliance with the WCAG 2.0 Level AA.

Although Winn-Dixie complied with the court order, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s decision, finding that Winn-Dixie was not in violation of the ADA because it did not need accessibility aids to conduct business. After that, however, Winn-Dixie posted an accessibility statement on its website that commits to adhere to WCAG 2.0 AA by using testers from the disability community to check the accessibility of their website periodically.

Robles v. Domino’s Pizza

Domino’s Pizza lost a website accessibility lawsuit in 2019 after years of exhaustive litigation when a federal district court in California granted the plaintiff’s motion for summary judgment after it determined that the website was indeed not fully accessible. The court ordered Domino’s to make its website compliant with the WCAG 2.0 to connect customers to the goods and services of Domino’s physical restaurants.

The court held that the ADA applied to Domino’s website and app because the Act requires places of public accommodation, like Domino’s, to offer auxiliary aids and services to make visual materials available to blind individuals. Although customers primarily access the Domino’s website and app outside its physical restaurants, the court found that the Act pertains to the services of public accommodation, not services in a place of public accommodation.

Andrews v. Blick Art Materials

In 2017, Victor Andrews, who is blind, filed a lawsuit against Blick Art Materials for website inaccessibility. Andrews alleged that because Blick’s website was inaccessible, he could not navigate and purchase items on the defendant’s website independently. When Blick made a motion to dismiss the lawsuit, Judge Jack Weisenstein denied it and made this statement:

Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.

The ruling in this case and others illustrates that businesses need to consider their websites equivalent to a place of public accommodation, which puts them at risk of being sued, even without explicit web accessibility regulations.

Latest DOJ Guidelines

In 2010, the Department of Justice (DOJ) launched a rulemaking process to address ADA requirements for website accessibility, including technical standards for accessible websites. However, that effort stalled for seven years during the Obama administration (even though the administration continued to pursue investigations and enforcement actions against businesses with inaccessible websites).

The Trump administration abandoned the process to interpret the ADA entirely in 2017. In 2018, the DOJ revealed that it would not give official guidance regarding website accessibility under the Act, releasing this statement:

The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.

Since the DOJ’s withdrawal, the number of lawsuits involving website accessibility increased dramatically, raising awareness regarding website accessibility among businesses but also causing confusion surrounding what features an ADA-compliant website should include. As a result, numerous website accessibility consulting companies emerged promising inexpensive solutions. However, some have been challenged in court.

In June 2018, some bipartisan members of the U.S. House of Representatives sent a letter to Attorney General Jeff Sessions encouraging the DOJ to release clear website accessibility regulations to diminish the unclear nature of current legislation. On September 25, 2018, the DOJ responded by stating that, at this time, the DOJ would not be issuing web accessibility regulations under the ADA: “The Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”

In March 2022, the DOJ issued further web accessibility guidance under the ADA. The “new” guidance references both the WCAG – which are voluntary – and Section 508 standards, which set standards for federal websites, and indicates that the DOJ supports the notion that sites of public accommodation must be accessible, and in the absence of explicit regulations, websites can be flexible in how they choose to comply with the ADA’s requirements. However, the guidance does not clarify what such flexibility or choice entails and– not necessarily the direction regulation-seekers are looking for, since it provides no substantially new information regarding the vagueness of website accessibility requirements under the ADA.

Final Thoughts

As accessibility regulations for websites remain unclear, it can be easy for organizations to assume that they cannot be sued for noncompliance. However, with no specific standards to follow, law firms and other businesses must do their best to interpret the ADA, practice website accessibility as they see fit, and try to avoid website accessibility-related lawsuits.

One more thing to consider: ambiguity runs both ways, and even though an organization might think its website is accessible, a disabled person might think otherwise, providing the grounds for a lawsuit. Organizations aren’t granted immunity simply because of a lack of clarity in legislation. Instead, uncertainty allows for interpretation by anyone, including the courts.

This article was authored by Jan Hill of Lawmatics.

For more business of law legal news, click here to visit the National Law Review.

©2022 — Lawmatics

Actual Malice in the Age of #fakenews

Public figures are fighting back against fake news.

In the most recent headline from the world of celebrity defamation cases, E. Jean Carroll is suing former President Trump for statements he made after she accused him of sexual assault. In a 2019 book and excerpt in New York magazine, Carroll, a longtime advice columnist for Elle magazine, accused Trump of sexual assault in the mid-1990s. Trump responded that Carroll was “totally lying” and not his “type.” Carroll sued Trump for defamation, claiming his statements had harmed her reputation. But Carroll—like all public figure defamation plaintiffs—has an uphill battle before her. To succeed, Carroll will have to prove that Trump’s statements were false, and—because Carroll is a public figure—she will also have to show that Trump acted with “actual malice.” The actual malice standard often proves to be too high a threshold for most public figures to cross, and most cases are lost on that prong—regardless of whether the statement was false. In fact, Johnny Depp was one of the few public figures in recent years to win a defamation suit.

So, what would it mean if the actual malice requirement was rescinded?

The seminal decision in New York Times Company v. Sullivan and its progeny are the backbone of defamation law in this country. These cases hold that public officials and public figures claiming defamation must prove that the allegedly defamatory statement was made, “with knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, with “actual malice.” On the other hand, a private figure, or one who has not sought out the limelight, need only show the false statement was made negligently. Prior to Sullivan, all plaintiffs fell under the negligence standard.

Public figures who must meet this “actual malice” standard fall into two categories: (1) all-purpose public figures, with “pervasive fame or notoriety,” like Johnny Depp; and (2) limited-purpose public figures, like Carroll, who, in the words of Gertz v. Robert Welch, Inc., achieve their status by “thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” The Court rationalized that both categories of public figures have “invite[d] attention and comment.” Moreover, because “public figures enjoy “greater access to the channels of effective communication” than private individuals, they are better able to “contradict the lie or correct the error.”

In today’s age of social media, do these justifications still hold true? When Sullivan and its progeny came down, there was a clear delineation between public and private figures. Typically, public figures had media access, and private figures did not. Today’s social media landscape muddles that line. We are all just one post, tweet, or TikTok away from becoming public figures.

In 2019, in a case strikingly similar to Carroll’s, the Supreme Court declined to review a defamation case filed by Kathrine McKee against Bill Cosby. In 2014, McKee publicly accused Cosby of forcibly raping her 40 years earlier. In response, Cosby’s attorney authored and subsequently leaked an allegedly defamatory letter. Excerpts of the letter were disseminated via the Internet and published by news outlets around the world. McKee argued that the letter deliberately distorted her personal background to “damage her reputation for truthfulness and honesty, and further to embarrass, harass, humiliate, intimidate, and shame” her. Applying Sullivan and its progeny, the Court concluded because McKee had “‘thrust’ herself to the ‘forefront’” of the public controversy over “sexual assault allegations implicating Cosby,” she was a “limited-purpose public figure” who needed to show actual malice—regardless of whether the statements about her were false.

In a lone dissent, Justice Clarence Thomas noted that “in an appropriate case, [the Court] should reconsider the precedents” requiring public figures to satisfy an actual-malice standard. Justice Thomas later double-downed on his proffer in his dissents in Berisha v. Lawson, and most recently in Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center. In Berisha, pointing to the shift in the media landscape since Sullivan, Justice Neil Gorsuch joined Justice Thomas in calling to review the Sullivan decision, noting our new media world “facilitates the spread of disinformation.”

According to these Justices, in recent years Sullivan has become less of a shield and more of a sword. The “actual malice” standard allows spreaders of conspiracy theories, false accusations, and fake news to be virtually untouchable. In an era where misinformation spreads like wildfire, has the actual malice standard allowed journalists to become sloppy and irresponsible? Under this legal standard a journalist is better off printing a story without fact-checking. In fact, failing to thoroughly investigate, standing alone, does not prove actual malice. If the Court abolished that standard, public figures would be like every other defamation plaintiff and would only need to show that the false statement was made carelessly. In other words, instead of the defendant knowingly printing misinformation, a plaintiff would only need to show that the defendant didn’t bother checking if the information was true or false before making it.

Under this precedent, for years reporters, and individuals alike have been shielded from consequences of publishing falsehoods about public figures. Removing the “actual malice” standard would have sweeping effects on journalists and news platforms, and would make reputable news organizations more vulnerable to attack and open to further scrutiny. But responsible journalists would still remain protected. Truth remains an absolute defense to a defamation claim.

Between 2018 and 2020 the number of defamation suits filed increased by 30%. With “fake news” on the rise, more individuals falling into the “public figure” category, and technology moving at warp speed, the Court may have no choice but to rethink Sullivan. While it is unlikely that that 50 years of settled precedent would be overturned, Sullivan just might, at the very least, be revisited.

Article By Melissa Sarsten Polito of Epstein Becker & Green, P.C.

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Chamber of Commerce Challenges CFPB Anti-Bias Focus Concerning AI

The end of last month the U.S. Chamber of Commerce, the American Bankers Association and other industry groups (collectively, “Plaintiffs”) filed suit in Texas federal court challenging the Consumer Financial Protection Bureau’s (“CFPB”) update this year to the Unfair, Deceptive, or Abusive Acts or Practices section of its examination manual to include discrimination.  Chamber of Commerce of the United States of America, et al v. Consumer Financial Protection Bureau, et al., Case No. 6:22-cv-00381 (E.D. Tex.)

By way of background, the Consumer Financial Protection Act, which is Title X of the 2010 Dodd-Frank Act (the “Act”), prohibits providers of consumer financial products or services or a service provider from engaging in any unfair, deceptive or abusive act or practice (“UDAAP”).  The Act also provides the CFPB with rulemaking and enforcement authority to “prevent unfair, deceptive, or abusive acts or practices in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service.”  See, e.g., https://files.consumerfinance.gov/f/documents/cfpb_unfair-deceptive-abusive-acts-practices-udaaps_procedures.pdf.  In general, the Act provides that an act or practice is unfair when it causes or is likely to cause substantial injury to consumers, which is not reasonably avoidable by consumers, and the injury is not outweighed by countervailing benefits to consumers or to competition.

The CFPB earlier this spring published revised examination guidelines on unfair, deceptive, or abusive acts and practices, or UDAAPs.  Importantly, this set forth a new position from the CFPB, that discrimination in the provision of consumer financial products and services can itself be a UDAAP.  This was a development that was surprising to many providers of financial products and services.  The CFPB also released an updated exam manual that outlined its position regarding how discriminatory conduct may qualify as a UDAAP in consumer finance.  Additionally, the CFPB in May 2022 additionally published a Consumer Financial Protection Circular to remind the public of creditors’ adverse action notice requirements under the Equal Credit Opportunity Act (“ECOA”).  In the view of the CFPB, creditors cannot use technologies (include algorithmic decision making) if it means they are unable to provide required explanations under the ECOA.

In July 2022, the Chamber and others called on the CFPB to rescind the update to the manual.  This included, among other arguments raised in a white paper supporting their position, that in conflating the concepts of “unfairness” and “discrimination,” the CFPB ignores the Act’s text, structure, and legislative history which discusses “unfairness” and “discrimination” as two separate concepts and defines “unfairness” without mentioning discrimination

The Complaint filed this fall raises three claims under the Administrative Procedure Act (“APA”) in relation to the updated manual as well as others.  The Complaint contends that ultimately it is consumers that will suffer as a result of the CFPB’s new position, as “[t]hese amendments to the manual harm Plaintiffs’ members by imposing heavy compliance costs that are ultimately passed down to consumers in the form of higher prices and reduced access to products.”

The litigation process started by Plaintiffs in this case will be time consuming (a response to the Complaint is not expected from Defendants until December).  In the meantime, entities in the financial sector should be cognizant of the CFPB’s new approach and ensure that their compliance practices appropriately mitigate risk, including in relation to algorithmic decision making and AI.  As always, we will keep you up to date with the latest news on this litigation.

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