Trademark Infringement in the Metaverse: Nike Sues Online Resale Platform Alleging Infringing Use of Logo in StockX NFT

In the 3D virtual world known as the metaverse, pioneering enterprises are exploring ways to capitalize on this new frontier’s growing popularity. As expected, the use of company marks and brands is becoming an issue to watch. Take Nike’s recent lawsuit against online resale platform StockX. The suit alleges StockX NFTs that incorporate images of Nike sneakers infringe on Nike’s famous trademarks. The complaint presents novel legal issues that, once decided, have the potential to define the scope of trademark rights in the world of NFTs.

What is an NFT?

Before we get into infringement, we need to understand the landscape in play. Non-fungible tokens, or NFTs, are unique digital assets stored on the blockchain, which is a digital and non-centralized ledger that publicly discloses who owns a particular NFT. NFTs act as a digital representation of ownership of tangible and nontangible items in the real world, such as artwork, real estate, and video game skins. Each NFT has a unique address associated with its owner that enables proof of ownership. NFTs can exist in any form of digital media, ranging from images to songs. Among some of the famous examples are the Bored Ape Yacht Club NFTs, which act as both a digital avatar and a ticket to an exclusive online social club.

Bored Ape Yacht Club NFTs are represented by a digital avatar of a uniquely designed ape. The middle image is a Bored Ape owned by Tonight Show host, Jimmy Fallon, who purchased the NFT for over $200,000.

While the first NFT was minted back in May 2014, they have only recently gained mainstream attention following celebrity buy-in and reports of NFTs selling for millions of dollars. In 2021, a crypto entrepreneur purchased Twitter founder Jack Dorsey’s first-ever tweet as an NFT for $2.9 million. As pricy NFTs garnered mainstream attention, many were left wondering why someone would pay millions of dollars to purchase what appears to be a simple image or video that is readily available to view online for free. While it is possible to screengrab and download copies of digital art that someone has purchased as an NFT, the NFT purchaser still remains the owner of the original work and such ownership is recorded on the blockchain. While someone may have a print of one of Monet’s impressionist landscapes hanging in his or her living room, only one original copy of the painting exists and ownership of that original carries significant value despite the existence of copies.

Nike Swooshes In

Nike brought an action in February 2022 for trademark infringement against StockX, a large online resale marketplace. StockX is a streetwear reseller that, unlike other marketplaces, also acts as an intermediary that provides authentication services to its customers. Recently, StockX expanded this authentication service by launching its own collection of NFTs, which it claims are linked to authenticated physical goods. Many of the NFTs being minted by StockX are comprised of images of Nike sneakers. Nike alleges such use of Nike’s famous marks constitutes trademark infringement, false designation of origin, and trademark dilution, among other violations.

StockX’s Nike NFTs.

The case hinges on whether StockX’s NFTs represent proof of ownership of physical goods or whether the NFTs themselves are virtual products.

StockX contends its NFTs are simply a method to track ownership of physical Nike products sold on the StockX marketplace and held in StockX’s custody. In denying that its NFTs are virtual products, StockX points to its redemption process in which NFTs may be redeemed by an owner at any time in exchange for delivery of the physical shoes. Importantly, this novel method for tracking ownership facilitates a more efficient and sustainable resale process. Instead of physical goods that are frequently sold and traded among consumers being repeatedly shipped following each sale, users can simply sell and exchange an NFT.

Nike argues that StockX’s Nike-branded NFTs are themselves virtual products, and not simply a representation of ownership of physical Nike sneakers. While StockX touts its customers’ ability to redeem an NFT in exchange for possession of the physical product as evidence that their NFTs act simply as proof of ownership, such redemption process is currently unavailable, with no indication as to when, if ever, such service will become available. Instead of presenting a new and efficient method for trading goods, Nike alleges that StockX is minting NFTs to profit from Nike’s goodwill and reputation in the streetwear scene. Indeed, the potential profit from selling Nike-branded NFTs is significant – a physical pair of Nike Dunk Low shoes have a resale price of $282 on StockX, but the StockX NFT purportedly linked to this shoe has traded for over $3,000, an almost 1,000 percent price difference between the physical shoe and the NFT. Nike concludes that the StockX NFTs are collectible virtual products, created and distributed by StockX using Nike branding without authorization.

Nike has a particularly strong interest in avoiding brand confusion in this case, as it recently acquired RTFKT Studios (pronounced “artifact”), a digital art and collectibles creative studio engaged in the creation of NFTs, in the hopes of combining blockchain technology with sneaker culture and fashion. Through this new acquisition, Nike has released NFTs through RTFKT, including collectible digital sneakers. Notably, Nike additionally has multiple pending trademark applications before the US Patent and Trademark Office to register its sneakers as virtual goods.

The Nike case is poised to be key to the development of metaverse jurisprudence because of its potential to address the scope of a trademark owner’s right to regulate unauthorized uses of its marks in NFTs. While the outcome of this case remains to be seen, other major brands are already seeking protection of their branding in this emerging space by filing trademarks to specifically protect virtual goods and services. Given the nascent uncertainty of how our current legal framework will apply in the metaverse, seeking registration for virtual goods and services is a prudent step for brand owners as we conduct business in the fast-growing digital economy.

©2022 Katten Muchin Rosenman LLP
For more articles about copyright infringement, visit the NLR Intellectual Property Law section.

New Jersey Employers Are Now Required to Provide Written Notice Before Using Tracking Devices in Employee-Operated Vehicles

Earlier this year, New Jersey Governor Phil Murphy signed into law Assembly Bill No. 3950, which requires employers in the State to provide written notice to an employee before using a tracking device on a vehicle used by the employee. The new law, which went into effect on April 18, 2022, recognizes that employers may have a legitimate business interest in being able to track their workforce’s whereabouts—particularly when traveling or working offsite—while also reconciling that with the protection of workers’ privacy rights. At the very least, the days of covertly tracking employee vehicles appear to be a thing of the past.

The law defines “tracking device” as any “electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device,” with a specific carveout for devices used solely for the purpose of documenting employee expense reimbursement.

Significantly, the written notice requirement applies to the use of tracking devices in any vehicles used by an employee. It does not matter whether it is an employee’s personal vehicle (whether owned or leased) or company-owned or provided. Written notice must be provided regardless.

Failure to comply with the law’s notice requirements can carry substantial penalties. An employer who knowingly makes use of a tracking device in a vehicle used by an employee without providing written notice to the employee shall be subject to a civil penalty up to $1,000.00 for the first violation, and then up to $2,500.00 for each subsequent violation. These fines can add up quickly, especially for service businesses with large vehicle fleets, among others. Additionally, it is possible that failure to comply with the law’s notice requirements may implicate employee privacy rights that could lead to further civil exposure.

Private employers within the State must ensure they have appropriate policies and procedures in place to comply with the new law’s requirements and insulate their businesses from potential liability for violations. While it does not specify what the required “written notice” must look like or how it must be conveyed to employees, at minimum employers should update their employee handbooks as well as provide a stand-alone, written notice to employees, with signed confirmation and acknowledgement of receipt. Additionally, rule and regulations regarding GPS tracking of employee vehicles may vary from state to state, so employers with a multi-state presence or service area need to be aware of the different laws that may apply to them depending on where their employees are working.

Employers who have not yet updated their forms and procedures should immediately contact counsel and take steps to ensure that they are in compliance. Similarly, it may be prudent for employers who drafted their own policies to have experienced employment counsel perform a policy or handbook review and provide advice and guidance regarding employer responsibilities and obligations, including but not limited to ensuring compliance with New Jersey’s new vehicle tracking device law.

COPYRIGHT © 2022, STARK & STARK
Article By Cory Rand with Stark & Stark.
For more articles about New Jersey Legislation, visit the NLR New Jersey law section.

SEC Targets Companies Conducting Cryptomining

The SEC recently doubled the size of its Crypto Assets and Cyber Unit.  Since its inception in 2017, the SEC’s Crypto Assets and Cyber Unit has launched more than 80 investigations resulting in over $2 billion in monetary penalties.  With more dedicated investigative attorneys, trial counsel, and fraud analysts, the SEC’s cryptocurrency-related investigations are expected to substantially rise in the months and years ahead.

The tip of the spear will include the areas that the SEC said would be its focus moving forward:

  • crypto asset offerings
  • crypto asset exchanges
  • crypto asset lending and staking products
  • decentralized finance (DeFi) platforms
  • non-fungible tokens (NFTs); and
  • stablecoins

View SEC press release here.

Given the heightened scrutiny, however, even companies outside of the traditional cryptocurrency industry may find themselves subject to enforcement actions and penalties.  For example, the SEC recently announced that it reached a $5.5 million settlement with technology company NVIDIA Corporation for the company’s alleged failure to disclose on its Form 10-Q for fiscal year 2018 that cryptomining was a significant element of its revenue growth. View release here.

NVIDIA is not a cryptocurrency-related company, but rather is a technology company that markets and sells accelerated computing technologies, including graphics processing units (GPUs) for PC gaming, the company’s largest specialized market.  The SEC alleged that, as interest in cryptocurrencies began to increase in 2017, NVIDIA customers increasingly began using gaming GPUs for cryptomining of Ether (ETH), which rose in price from under $10 to nearly $800 between 2017 and 2018.

In its Form 10-Q for fiscal year 2018, despite knowledge (discerned by the SEC from internal company documents and communications) of cryptomining as a significant driver of its GPU sales growth in its gaming division, the SEC alleged that NVIDIA failed to disclose that this growth was largely driven by demand for gaming GPUs to use in cryptomining.  The SEC further alleged that this failure to disclose misled investors about the growth of NVIDIA’s gaming business in violation of Section 17(a)(2) and (3) of the Securities Act of 1933 and the disclosure provisions of the Securities Exchange Act of 1934.

As the SEC steps up its cryptocurrency related investigation and enforcement actions, publicly traded companies must exercise increased diligence in disclosure of activities that touch cryptocurrency assets.   Even internal dialogue about revenues or other disclosable material that touches cryptocurrencies, as happened to NVIDIA, could subject companies to increased scrutiny and significant monetary penalties.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLP
For more articles about cryptomining, visit the NLR Financial Institutions & Banking section.

Top Legal Industry News for Spring 2022: Law Firm Hiring, Industry Recognition, Women in Law

We’re back with another edition of our legal industry news roundup. Read more below for the latest updates in law firm hiring and expansion, legal industry awards, and recognition of leading women in the field today.

Law Firm Hiring and Expansion

Keller and Heckman added Counsel Daniel P. McGee to the firm’s Tobacco and E-Vapor practice. Mr. McGee’s experience includes counseling companies on a broad range of complex tobacco industry and U.S. Food and Drug Administration (FDA) regulatory matters and developing strategies to help companies bring new products to market.

“Daniel’s expertise and industry perspective will be invaluable to Keller and Heckman clients who are carefully navigating the challenges and pitfalls of a highly regulated and rapidly evolving legal landscape,” said Azim Chowdhury, a Partner in the firm’s Tobacco and E-Vapor and Food and Drug practices. “In addition to expanding our tobacco and e-vapor capabilities, we are especially looking forward to utilizing Daniel’s expertise in state law compliance, particularly for clients expanding into the hemp and CBD categories.”

Richard Mann, Chair of Keller and Heckman’s Management Committee, expressed excitement over Mr. McGee’s joining the firm, saying. “The addition of Daniel to our practice demonstrates Keller and Heckman’s commitment to helping our clients understand and comply with continuously evolving regulations in this growing field.”

Mr. McGee said he’s looking forward to collaborating with the Tobacco and E-Vapor team at Keller and Heckman.

“After spending the bulk of my legal career as in-house counsel to the tobacco industry, I made a strategic decision to focus on the industry as a whole and join a law firm that is a leader in tobacco regulatory compliance and public policy initiatives.”

Norris McLaughlin, P.A. welcomed Michael J. Willner as a Member in the firm’s New York office. Mr. Willner joined the firm’s Real Estate, Finance, and Land Use Practice Group.

Mr. Willner works with individuals and entities involved with managing real estate assets, as well as condominiums and co-ops. He specializes in condominium and cooperative law, commercial and residential real estate transactions and related litigation.

Holtzman Vogel Baran Torchinksy & Josefiak PLLC opened a new office in Phoenix, Arizona. The firm held its ribbon cutting ceremony on April 26 for the office at the Esplenade with the Arizona Chamber of Commerce.

The office is led by resident Partner Christine Fort and Dallin M. Holt, Of Counsel.

“After over 20 years representing high-profile clients in all aspects of political and regulatory law, we are grateful to now open our fourth office to help support our growing roster of clients in the West,” said Managing Partner Jill Holtzman Vogel, former Chief Counsel for the RNC and a sitting member of the Virginia General Assembly. “We could have chosen anywhere to expand our reach, but Arizona and the Phoenix metro area is dynamic and fast-growing – just like our team. This is absolutely the right place for Holtzman Vogel to put down roots, and we are thrilled to open the doors and get started.”

Goldberg Segalla added Ian G. Zolty to the firm’s Workers’ Compensation group in Princeton, N.J.

Mr. Zolty has experience counseling and defending employers, insurance carriers, and third-party administrators in workers’ compensation matters throughout New Jersey, including hospitals, insurance companies and school boards, among others.

Legal Industry Recognition

City & State New York named three shareholders at Greenberg Traurig, LLP to its 2022 Energy & Environment Power 100 listSteven C. RussoDoreen U. Saia, and Zackary D. Knaub. The recognition spotlights significant legal professionals in the New York area that are “reshaping the energy industry – and rescuing our environment.”

Mr. Russo is the co-chair of the firm’s Environmental Practice, focusing his practice on environmental law, the National Environmental Policy Act, the State Environmental Quality Review Act, and more. Ms. Saia is the chair of the Albany Office’s Energy & Natural Resources Practice, where she focuses her efforts on supporting national and international electricity corporations and aiding in related financial transactions. Mr. Knaub is a shareholder in both the Environmental and the Government Law & Policy groups, practicing specifically in energy and environmental legal and government affairs matters, including litigation, dispute resolution, government procurement, and regulatory matters.

Tammie Alexander, chair of the Business Department at Steptoe & Johnson PLLC, is a 2022 Bar Foundation Fellow, appointed by the West Virginia Bar Foundation Board of Directors.  Recognizing lawyers and judges in West Virginia with noteworthy dedication to the practice of law, the Bar Foundation has nominated only 450 out of 6,000 eligible individuals since 1999. Since the program’s inception, 22 Steptoe & Johnson attorneys have been selected as fellows.

Ms. Alexander, located in the firm’s Morgantown office, focuses her practice on an array of topics, including banking, real estate, commercial transactions, title insurance, and construction matters. She primarily assists with large scale projects that involve multiple property owners, governmental agencies, and financial investors.

The South Carolina School of Law provided the Platinum Compleat Lawyer Award, the school’s highest alumni honor, to Erna Womble, retired litigation partner at Womble Bond Dickinson (US) LLP. Established in 1992, the Compleat Lawyer Awards are meant to recognize alumni for notable professional, civil, and legal accomplishments. Recipients are members of the field who exemplify professional competence, ethics, and integrity.

Erna Womble, who graduated from the University of South Carolina School of Law in 1986, joined Womble Bond Dickinson in 1987. Today, she serves as the Co-President of Clearly Bespoke Strategies, Inc., a strategic advising company. Ms. Womble said of the award: “I am profoundly honored by the award from the law school which began my career as a lawyer-in-training. One of my excellent professors often admonished that when lawyers cease to learn, they cease to be good lawyers. More than three decades later, I’m still a lawyer-in-training. I am forever grateful to my beloved firm which afforded me the singular privilege of raising children whilst working with scions of industry and holders of the public trust in serving some of the firm’s best clients.”

Women in the Legal Industry

The Los Angeles Business Journal announced their “Women of Influence: Attorneys,” list which included Stubbs, Alderton & Markiles’ Heather Antoine. The list highlighted lawyers working for large businesses in legal areas such as data protection and intellectual property law.

Heather Antoine focuses her law firm practice on corporate property and data protection as Chair of the firm’s Trademark & Brand Protection practice, and Co-Chair of the Privacy & Data Security practice group. Some of her credits include features in the Los Angeles Times and CNBC.

Robinson & Cole LLP voted partner Britt-Marie K. Cole-Johnson to join the firm’s Managing Committee, allowing her to participate in the firm’s policy and practice strategic development. This comes after a series of noteworthy recognitions in the legal field: Cole-Johnson was recently presented with the Distinguished Leader Award by the Connecticut Law Tribune’s Connecticut Legal Awards, and she was additionally selected as an honoree for The 100 Women of Color Gala & Awards.

“[Ms. Cole-Johnson] is well-known for her talents as a legal advisor but also for her deep commitment to community organizations. She joined the firm thirteen years ago after law school and has been a true and constant champion for equitable and inclusive business practices within the firm, with her clients, and within the community. I look forward to her bringing that leadership and perspective to our Managing Committee,” said Robinson & Cole colleague Rhonda J. Tobin.

The accolades followed a recent appointment by Connecticut Governor Ned Lamont for the Connecticut Paid Leave Authority board.

Romer Debbas, LLP formed an all-female, diverse Agency Lending & Affordable Housing Department, focusing on representation in the property market. Partner Carmen I. Pagan, and Associates Catherine M. Azevedo and Pamela U. Norbert lead the new team with years of legal knowledge in real estate financing, commercial property law and lending service providers.

The new department expanded the firm’s practice areas in bankruptcy, corporate and business law, immigration, litigation, taxation and trusts and estate law.

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

Copyright ©2022 National Law Forum, LLC

Episode 2: The Importance of Data in Legal Business and Legal Marketing with Laura Leopard of Leopard Solutions [PODCAST]

Rachel and Jessica speak with Laura Leopard, the Founder and CEO of Leopard Solutions: a service that provides law firms with data to improve hiring and marketing for the business of law.

Be sure to take the Women Leaving Law Survey HERE and sign-up for the Women Leaving Law webinar on June 2, 2022 to hear the results of their survey.

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

INTRO  00:00

Well, hello, and welcome to Legal News Reach the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends, illegal marketing, SEO, law firm best practices, and more.

Rachel  00:15

My name is Rachel,

Jessica  00:16

And my name is Jessica.

Rachel  00:18

And we’re the co-hosts for the podcast. Today we’re speaking with Laura Leopard Founder and CEO of Leopard Solutions. Laura, would you like to tell our listeners a little bit about yourself and your organization?

Laura Leopard  00:28

Of course, of course, we are a legal intelligence company that monitors law firms and attorneys. And we have been doing it for nearly 20 years. And we have grown from a simple attorney list to a detailed current and historical account of attorneys and their movements. And of course, we now offer competitive and business intelligence for law firms and the market in general. And I have been at the helm for nearly 20 years.

Rachel  01:02

We’re excited to get your insight into some of those more data-driven trends here in the industry. So the first thing that we want to focus on is the importance of data and legal marketing and legal business. One of the things that I hear pretty often is that law firms are data-rich and information poor. So can you explain a little bit about why that is and how law firms can solve for that problem?

Laura Leopard  01:26

Well, I think that was more generally true in the past. But today, many law firms are correcting that issue, because they’re hiring intelligence professionals to come in and help them mind and understand their own data. The other side of the coin is gathering external data on their competitors so that they can benchmark their own shortcomings and successes properly. And that’s where we come in. We measure law firms across the board, and we deliver those benchmarks that they need. Well, several years ago now, we had prepared a detailed report on a law firm and the top 200, about their ROI on lateral hiring and entry-level hiring. And we showed it to you know, prospective law firm. And we offered to write one for their firm, and then also a list of their competitors, you know, of their choice. And their response was, “this is very interesting, but I’m not sure what we could do with it.” And it just proved to me at that time that firms and leopard both needed to do a better job of explaining the value of the data, and how it could be used. So we developed firm scape, which is our competitive intelligence platform. And it’s filled with great data. And people were very excited to see it. But then again, only people who could readily understand what it offered, really benefited from it in really meaningful ways. So when we wrote our Business Intelligence platform, we wanted to just carefully lay out what everything meant, in clear, concise terms, so that meaningful measurement would be readily understood. You know, everyone gets very excited about data. You know, “big data, big data, data-data-data.” But not everybody understands the application of that data, what that data could mean. And that’s where we have hoped to sort of democratize data in a sense of laying it out in a way that anybody can understand it, not just data people.

Rachel  03:36

Yeah, I think just being empowered to look at it is also really great. Because I think some people can get a little intimidated by data like, “Oh, it’s just a lot of numbers,” like what the numbers mean. So one of the trends that we’ve seen, and that we’ve talked about recently is women leaving the legal industry and what that means for the profession. We published a Q&A that you did with Stefanie Marrone, about this topic. We’ve had her on the podcast before; I was curious if you could dive into this trend and talk about why this is happening and how law firms can respond to it?

Laura Leopard  04:07

So we did a survey, and it’s still in progress. We’ve had about 170 responses so far. And I have to tell you, it was incredibly depressing to read the comments and the answers that they had about why they left their top 200 law firm. And a lot of it was much of what you might suspect, you know, lack of opportunity, lack of mentorship, a feeling of not being included, you know, in the group and just really lack of opportunity stood out, you know, a great deal. So we decided, well, we can’t just we can’t just, you know, do a report. We’re gonna do a presentation in May about this at the Art conference. We really wanted to dig in deeper. So we’ve been doing interviews with women who have succeeded in the top 200 Who are partners at their firm, and they’re leading women’s initiatives, and they’re doing some really great things. And we’re learning a lot in the whole process, I didn’t want to just say, here’s a big problem, you should fix it. It’s like, Here are ideas about how you can fix it. And here are examples of where those ideas are actually succeeding in top 200 law firms. But I think the really important thing that we took away after reading a lot of this was these same problems exist for attorneys who are also underrepresented, and from who are ethnically diverse. And there are also, you know, white men at the firms that have issues because they have a family members who is ill, and they have to step away. And there’s lots of there’s, there’s lots of problems here. But there are ways to fix them. And that’s what we’re working on. Right now. We are doing some great interviews, we’re coming away with some really positive ideas. And we have some firms that are really doing some great work. And we want to share that with everyone. This is not a problem that cannot be fixed. This is a problem that can be fixed, if one wishes to fix it, and everyone is determined to see it through. And for us, it’s really important to talk about this topic, we are a woman-owned business. I’m a woman entrepreneur, we have all experienced, you know, sexism, we have all experienced some lack of opportunity in our lives. And this is really important for us to start this conversation again, or remind people this conversation needs to be ongoing and continuing. So after our presentation, we’re going to we’re going to do a webinar at leopard, we’re going to invite some great folks to speak at that webinar, we’re also going to do a full white paper. But this is one of one of something that’s really, really important to us. And I really hope it can open a lot of eyes and help move the needle to helping women succeed in those top 200 firms and in law in general.

Rachel  07:13

We talked on the show before about how COVID has sort of given people the opportunity to make change that their law firm their ongoing, I think, you know, we did speak in the past year about how COVID did push women out of the workplace. But like, I think moving forward past that and not using that as like an excuse to go back to the way things were and to make long-lasting change, I think is really important. So I was curious if you could share maybe some of the solutions that you know, law firms could implement to help remedy this problem, or if that’s something that will come later with with your white paper and after your presentation?

Laura Leopard  07:48

You know, having a strong mentorship program is really important. And you can have assigned mentors, but you also have those sort of like those volunteer mentors on the side. And not just not just women mentoring women, but men also being mentors to women. The same problem exists for those who are ethnically diverse, if you have a program in place, or everyone is assigned a mentor, then you’re you’re going to help them overcome that hurdle, flex time paternity and maternity leave and not just saying we offer maternity leave, but by saying we encourage you to take maternity leave, right? If as many men took maternity leave, as women take maternity leave, it sort of removes that stigma from a woman having to take that time off, there are some really concrete things that can be done that can make a huge difference. And, you know, the women did not just leave these firms due to COVID. They left because it became untenable to stay for many different reasons. And a lot of it had to do with flexibility on the job, right? Yes, they were. Some of them were home with children. But a lot of people that answered this survey didn’t have children at home. But this entire pandemic caused people to think differently about their lives and their situations. Women are not alone in feeling this way. Right. So there are lots of young people now that are coming, you know, coming into law firms that are saying, I don’t I don’t want to work 80 hours a week. I like being home. I like having time to myself, that’s important to me. And the pandemic showed a lot of people how important that other part of your life is, right? It’s it’s a big bargain to make when you say I’m gonna work this hard for this long and I’m gonna make partner but some of the people that responded to our survey says, here’s here’s a here’s a newsflash when you make partner, that doesn’t get any better. If anything, it gets worse. worse, there are more responsibilities on top of you, you have to continue to work those crazy hours. And you have to do business development and you have administrative duties. And and and so if you are questioning, you know if this is the lifestyle for you. And I actually did have someone say that. So if you really care about having a lifestyle with your family and friends that may be this, this choice isn’t for you, I’m gonna flip it back on its head and say, Do you really want well rounded, happy, well adjusted people working for you, somebody that’s working 80 hours a week is not going to fit that bill, right? Because that’s all they do. That’s their single focus. And they’re going to burn out, and they’re going to leave you just when you need them. So taking a more holistic view, and saying, you know, and this was this was a quote, I had a partner say, I was told when I, you know asked for flex time, my partner said, I would rather have you at 50% of your normal time than many of the people that work for me at 100%. Because you do the job that I need you to do. It’s it’s time that law firms start thinking about the future, things never stay exactly the same, right? The whole hierarchy of law firms that we know now was created, what 100 years ago, when men were the only people that were lawyers, and they had wives and housekeepers and stuff at all. Right? That’s not the world we live in anymore. And we’re also beginning to question, you know, all the young people coming up are questioning everything. They’re questioning authority, they’re questioning why they have to do this and why they have to do that. And when they say, this isn’t a life, that’s for me, I don’t want to be partner. What does it do to that old model? You know, you’re there, there’s going to have to be an inflection point where they start to think about what is going to happen at their firm five years from now 10 years from now, when this generational divide, you know, really takes place. And here’s another newsflash. According to our data for the last three years ago, I think entry level hiring coming out of law school was about 5050 men and women, then the women edged out the minute, then the women rose again, there are far more women in college and far more women in law school than there are men, and they are outnumbering men being hired on that entry level position. But if those women don’t stay, and if those women leave, because you are asking, you’re creating an untenable situation for them, what’s going to happen to your partner track, then what is going to happen to that wealth of knowledge that that person brought to your firm, and she’s gonna walk away with, there’s, there’s going to be a reckoning in the industry, because times have changed, and people have changed. And it’s going to be interesting to see how it plays out. But we can see by looking in the data that they’re, they’re going to be, there’s going to be some shockwaves. And as we start, at the Women’s seminar, we’re going to be, you know, measuring all kinds of exit data and comparing it, you know, one against the other. But it’s time that firms really start to have more of a forward view about what kind of law firm they’re going to be 10 years from now, because that’s really going to impact one thing they care about most. And that’s their bottom line.

Rachel  13:46

What has been the impact that you’ve seen, like this, this lack of information?

Laura Leopard  13:54

I think we all can say, you know, pretty clearly, if you are not using data to make decisions, you’re gonna pay a price for it. You know, data improves decision making, and it can help you predict, you know, competition stresses, and then by tracking industry trends, you can begin to predict future moves a little more successfully. Of course, you have to be, you have to have really, really good data, right? If you’re using bad or incomplete data to make decisions, you might as well not use it at all. So, data quality has been very central to our business. Our data is checked and rechecked and continually updated in order to offer the best possible dataset. But I think data itself should be demystified you know, to a certain extent, by making it clear why a particular dataset matters, right? firms should care about employee turnover because it costs their bottom line and I’m not just talking about a few dollars here and there. I’m talking about Millions of dollars. And firms should care about where their competitors are opening new offices because it shows possible opportunity that they didn’t see, firms should care about who their competitors hire, to see where their next focus will be. And perhaps they should look there as well. Are, is there a competitor building up a practice that competes directly with them in their city? Are they looking at your people to possibly, you know, recruit out of them? Lack of data and insight just leaves a firm operating blindly, just by their instincts and granted, instincts are great, but they can go horribly wrong. If you look in our growth decline report now, which kind of shows that winners and losers by you know, headcount, you will see firms in the bottom of that tear that you never would have guessed would be there just a few years ago, those other firms saw an opportunity that the others didn’t, and they seized it. So data can really make or break, you know, your company, relying on your gut and anecdotal data that people bring you. It’s just not effective. I, you know, law firms love to call around and ask a recruiter. So what’s hot right now? Or what’s what’s going on right now, this was one of my favorite stories. They they talked to a recruiter, the recruiter said, Oh, the Chicago market is so hot right now. It is so hot. It’s just on fire. And I look back and I looked at our data and and like, it’s, no, it’s not, there isn’t more movement, there isn’t more job openings, that one recruiter happened to be a lot busier in Chicago than anybody else. So all of that anecdotal data like that is meaningless when you can compare that against really hard, true facts. And that’s what they really need to start doing.

Jessica  17:00

Without giving away the “secret sauce” if you will, the metrics that these firms are using for hiring specifically is that, you know, the number of job openings, like you said. I mean, what are what would you say are maybe 1-2-3 of the big numbers they’re paying attention to with hiring specifically?

Laura Leopard  17:16

Well, you know, on our platform, one of one of everyone’s favorite, you know, reports is, is that growth decline report so they can see who is who is growing quickly, and adding a lot of people to their firm. You also can see firms who who are in churn, right, they lost 100 people, they hired 100, people, and firms will use that report to find firms that it might be easier to pry people away from, right. So if you have a firm, that’s negative 15, in headcount, and people are exiting that firm like crazy, well, you have an opportunity to go pick up those people there. You also can look at our lateral reports. And you can see where the hot markets are, you can slice and dice it by practice area by specialty, you know, by far by all different kinds of metrics. You even can look at, you know, gender movement, and those who are ethnically diverse, there’s lots of different ways to look at it, but it gives you a good market view. And of course, we do have, we have a job program where we are looking at over 1000 law firms every day in real time. And I’ll tell you, you know, when the pandemic happened, we normally had like six to 7000 jobs and our job program. During the pandemic, I think in like July of 2020, that number went down to about 3000. And most of them, I don’t think were really real openings. Anyway, there were openings, they just sort of left on their website. And now we have over 12,000, approaching 13,000 openings in a program. So that will just tell you the velocity, they also can. And our job program is great for CIA too, because you can go in and see how what your competitors are looking for how they’re framing that position, like right now, we know everyone’s looking for corporate m&a people, right? How are they framing that job? How can you make yours look more attractive? What can you do to you know, sort of get an edge in that market. And there’s lots of other reports that we have that can help them gain advantage. But those are probably, you know, the top the top three, just seeing what’s going on in the market.

Jessica  19:31

With all the changes in the legal industry, I think there’s a huge focus right now, not only in just data and the services you guys offer, but also diversity in the workplace. So I would love to know–I know you mentioned a little bit of it, but being able to see you said gender maybe changes are hiring, how to make it attractive to certain diverse populations of people so that you know, the law firms represent their communities, if you will. Could you explain a little bit more of that? I would love to definitely learn more.

Laura Leopard  20:00

For years, we had been asked to have diversity information in our database. But we just thought it would be incredibly hard, we weren’t sure how we wanted to do it, it was it’s it, you know, having that kind of information in the database is a little risky. To a certain extent, you have to be really careful and really think things through. Then the summer of George Floyd happened, we were in the middle of a pandemic, things were kind of crazy. But when that happened, we all you know, on our, our, you know, our little community of folks at leopard said, we have to do something, we have to do something. So we put all of our heads together. And we said, well, here’s how we might do it. And we knew about the Mansfield rule and, you know, diversity lab who are great folks. And we knew how they handled their data. And they really, were asking for data, they really wanted law firms to be able to go in and find people that were diverse in order to bring them into the hiring game. So we took a page out of their playbook, and we said, Okay, if we put diversity in our database, we’re only going to show it to people who we think are going to use it correctly. So if a law firm is a member of the Mansfield rule, they get the diversity data, we don’t charge an extra penny for any of this, we spent months doing research on every single person in the US in our database, to see if they might be ethnically diverse. And what we did was we, we went on a probability score. So if we look at where they’re from languages, they speak committees that they belong to, like we sort of look at all of their data points, then we can come back and say, Okay, we think there was a high probability, this person could be ethnically diverse. If you are a member of the Mansfield rule, you can access and you can view those attorneys. If you’re not, then you can sign the leper diversity pledge. And with that, you are promising to use that data in the correct way, which is to include not exclude, and to really look at these people, you know, in order to bring them in front of the hiring committee of a law firm, in order to move that needle. We also put safeguards in the database in place, so that those people could never be excluded from a search, they could only be included, you can only see them when you want to find them. And we did the same thing for gender. So we moved because there were other gender issues that we wanted to recognize and acknowledge. So you have a high probability of being gender diverse or low probability of being gender diverse. So now, because because we took those steps, we are also able to report on diversity, and every single law firm in our system. And that means if you are a diverse candidate, you’re going to you’re going to be able to know, you know, or a recruiter can show you or the law firm can show you what their diversity score is, in comparison to the other law firms that they may be considering. Everyone. Everyone gets a score, everyone sees you know, how well they’re doing or how poor they’re doing. And law firms can use this in their conversations with people that they want to bring in. And let them know that they are growing diversity within their firm, you can see it in the growth decline report, you can see who’s growing in ethnic diversity numbers, who’s growing in women numbers, it’s all right there for the world to see. And we use the same scoring across the board for every firm. So it’s so it’s all equal. But that was an incredibly important thing for us to do. We spent months with, you know, all hands on deck, getting this data in, and it’s something that we continue to work on all the time. You know, there are people that we have as, as we consider sort of, we don’t have enough information to go either way. Well, we continually go back to see if there’s more information that’s available about that attorney, so we can label them properly, high or low. But being able to do that also led us fold in diversity into our leopard law firm index. So we decided that the normal way that firms are assigned, you know, a grade of excellence, where those scores coming from a once a year list, you know, are really not helpful in today’s fast paced world. We have always seen firms go out of business in the top 200 of emerging they, you know, they go away, they go under, and we wanted something that was real time that would go up as the firm was improving and if the firm Um, you know, hit a bad patch than their score would also show that we have firms in the leopard top 250 that are not in the top 200. We have, we also have firms that are in the top 200 that are not in the leopard top 250 Because our scoring scoring methods are very different. And they’re really database and one of those data points is a diversity number, how well are they doing with diversity. So it is become a part of everything that we do in almost every single report. And in our last leopard law firm index, how well a firm is doing on ethnic diversity is incredibly important. And we wanted to show that by using it as many as many different ways as possible.

Jessica  25:49

I think it’s great to have so many different options of metrics, because I think casting that wide net, as far as what you’re able to keep track of for your firm, allows you to pick up any alarm bells of things that maybe aren’t going as well, like you said of, you know, growth, maybe it’s going down in this area or what have you. So I’m curious to know what some of those alarm bells would be or like red flags in the data that maybe law firms should pay attention to or could affect their business model and moving forward for their growth?

Laura Leopard  26:22

Well, I think all those items that are in that, you know, law firm index, and the score that we give because of it. So we look at metrics that really don’t change over time in the in the sense that we do look at only one little tiny piece of the financial puzzle, which is the revenue per lawyer, but it’s scored over a five year period, because that is really there just to show Oh, it’s going up, oh, it’s going down. So that is available there, and part of that index, but we also use items, the growth decline and attorney headcount, we use the average attorney tenure increases or decreases in that RPL, as I just mentioned, and the ROI, the success and lateral recruitment, and the success and entry-level recruitment. And for the index, we only look at it in the prior 12 months. Because if you are having problems retaining people, the first year they join that firm, we see that we think that is a red flag of something going on at the firm, which is why it’s in the index, we also look at promotions to partner and we look at ethnic diversity within the firm. And one reason that we do that is that companies have said over and over again, they care about ethnic diversity, and they want to work with firms that have a good ethnic diversity number, if that’s true, and if they hold their feet to the fire, then that really must be in the index. And there are other items that we’re looking to fold into that index. But those are the ones that help give that score. There are so many other things, that ROI that I talked about, like in the index, we look at the past 12 months, but you can go back and look, look three years ago, how well did you do in your hiring three years ago? How well did you do that the year before that, because we’re talking about millions of dollars that these firms are losing because they only have a 70% retention of people that they just hired two years ago. And and that is a huge red flag that they really must pay attention to. So then the question is, you know, where’s my problem? Right? So we wrote a report in the in the BI Suite, that really helps you break it down? Is it a practice area issue? Is it a particular office that has an issue, and you can benchmark your firm against your competing firms? I think sometimes when people say, Oh, we have a 80 80% retention rate, that’s pretty good. Well, it’s good until you compare it against some of your competitors who have a much higher number. And it’s also good until you realize exactly how much that attrition is costing your firm, millions and millions of dollars. You know, I’ve also I once had a recruiter and a law firm say, they really didn’t mind the attrition because it was sort of job security for them. Because they kept busy. But really, job security for them is not just it’s making sure you have a successful hire. It’s making sure that those people are happy and they’re getting what they need, is looking to see, you know who might be on the cusp of leaving. We have something in our attorney database called the probability The move, right? So we’re looking at people that have moved in the past and similar circumstances and JD, your range, practice area and all that good stuff. So you can run it on your own firm. And you can see who has a very high probability at your firm that allows you to play defense with those people and help to see if they’re getting what they need, are they happy? Do they need to look at some new kind of schedule? Are they unhappy in their practice area, and they’re not getting an opportunity to change it, there’s a lot, a lot of things that firms can do, if they start to use that data to help see where they might have a problem. And we’ve written many reports that could help them do that, again, again, even with the law firm index, it’s not about calling out oh, this is the big winner, this is the big loser, it’s like, you might have a problem. And we’re gonna help you find where your problem is, because this report will show you where you are, you know, far beneath your competitors, this is an area that you have to look at. And that’s what it’s there for is to really help them do better. And we can show them the metrics that say, this is where you should begin looking.

Rachel  31:15

We’d spoke a little bit about at the beginning of our conversation, how law firms are starting to really start to adopt this technology to integrate more data and things like that into their business. I was curious to get your thoughts on how the legal industry has changed over the course of your career in terms of how this technology has been adopted? Have you seen like a paradigm shift in the past couple of years? Or how has that been?

Laura Leopard  31:37

They certainly have changed, but it hasn’t been a change overnight, you know, law firms, both now. And then they use several different kinds of technology for several different purposes. And, you know, data was housed in silos, you know, with multiple programs used by multiple people. And today, you see firms hiring technology teams, to better integrate and manage that data. So that’s a step in the right direction. You know, I have seen firms that have very little data about their own firm, and about, you know, their own alumni. And they’re beginning to recognize that, that puts them at a disadvantage, right. So that recognition is a huge step, and getting the task of just getting all the data in a proper form, and then the right system, that’s a really big undertaking, and only the largest firms can really, you know, kind of take those steps and hiring that technology department, you know, lucky for others, we can kind of step in and provide that market data that CEI intelligence for them. And even for the firms that have, you know, their own CI department, they still need data on their competing firms to use to create that proper analysis and benchmarking. And that’s where we step in to fill that bill. But technology has been getting much, much better in in many law firms, but not all law firms, there will always be some that are sort of lagging behind.

Rachel  33:11

I wonder, you know, when is going to be the point where these people who are lagging behind will start to realize that, you know, if if you don’t change, then you die, essentially, you know, it’s because eventually just not going to be able to keep up with everyone else around you. So I think one of the technologies that in addition to data that we’ve been hearing about is the use of artificial intelligence in you know, recruiting and and other operations. I was wondering if you could speak a little bit about like your experience in using artificial intelligence and recruiting and things like that, and how it can improve those processes.

Laura Leopard  33:46

We have a product that uses AI, that sort of analyzes a possible merger, right, so it can produce possible candidates. And then when you select one, we use all of the data from all the past mergers that we’ve seen in our database, to really say, Well, this is how we think this merger would go based on attrition rates. And then we highlight all the risks points, you know, of that particular acquisition or merger. And that’s, that’s in the BI Suite. An AI for hiring is kind of tricky. So while it sounds like you know, oh, we’re going to use AI and it’s going to eliminate bias. The problem is there will be inherent bias baked in, depending upon the data set that AI is based on. And the legal industry has historically been predominantly white and male for decades. So an AI hiring system based on that data set is going to have bias unless you work to overcome it. If you’re parsing resumes and cover letters is going to need to be trained on you know, being neutral on titles and verbiage. And you know, was key words. Now we like to look at data patterns, which can prove to be, you know, maybe even more helpful than that kind of AI. You know, there’s different processes that firms do almost without thinking, you know, firms do a lot of institutional hiring. And we can show that in data and tell that story. And these are the types of data patterns that you know, I would like to see kind of shake up that hiring model, the one that, you know, may not be serving the firm as well as they thought. But an AI for hiring has always been tricky. And we’ve, we’ve explored some of this ourselves. And then at the same time, we said, Well, wait a minute, it could very well be that the best person at the firm, the one that succeeds the most is always going to be that white male partner that came on 30 years ago. So this is something that we’re working on. And we’re working to see how we could eliminate bias in that kind of report. But it’s, it’s a tricky thing. And it’s I know, a lot of companies outside of law firms have used it. And there have been a lot of issues with using AI in that process. So it’s something you have to watch very closely.

Rachel  36:17

Yeah, I think there’s this misconception that AI is just like, you know, it’s not a person. So how can it you know, make these questionable decisions. But the problem is that, like a person has to build the AI. And it has to be based off of, you know, it has to learn these things from something else. So I can see how that would be a slippery slope. So with that in mind, like do you see…Or I guess, like what technologies do you see changing these processes moving forward? What do you expect the role of technology will be like, in the future?

Laura Leopard  36:49

There are many, there are many hiring issues. And we are working now on a really cool piece of technology. To help with one of those, you know, I talked to I talked to a lot of law firm people who have to do a lot of work, before the hiring partner sits down with the candidate. Because so often that hire can be blown if that hiring partner doesn’t know what to say that I care. So much about lateral hiring is about convincing that person to join your firm. And competition right now is at an all-time high. So what sets your firm apart? You know, why would this top-notch corporate m&a attorney, choose your firm over the five others that he’s looking at, you really have to tell them and you can’t just say, Oh, we’re a great firm with great people and a great culture, you really have to say, how your firm has, you know, grown over your competitors. Let’s say you’re interviewing a woman who’s an IP associate and wants to make partner, well let her know how many women IP partners you have in your firm in relation to her current firm. And if that number isn’t as great, maybe the percentage of growth is great, right? Just convince them that your firm is the best choice by using data to confirm that back. There are always good stories that can be told with data. And we are trying to help firms uncover those and help that hiring partner convey those really positive things. And right now, you can do that. But you’d have to run several reports. And then you’d have to write the analysis and then hand it to the to the hiring partner. So we are developing a tool called the Coach’s Corner, that’s going to do just that. And it’s going to analyze the firm that seeking to hire against the firm with the attorney currently works. And it’s going to map out all the positives that we have in the data for your firm. And that is a really important part of the conversation. Right now the competition is so tight, and it’s so everything is moving so quickly, that they all need, you know, as as much help as they can to paint their firm in the right light if they’re gonna get that higher. So there’s a lot of power on the job seeker right now, especially in certain practice areas and in certain areas of the country. And they want to make sure that they’re making the right choice. All that there’s a lot of strange decisions going on out there. There’s, there’s a race for, you know, who’s getting paid the most. But if you’re all paying the most, how do you decide between one and the other, you have to look at all of that other data to say overall, our firm would be the better choice for you because of a B, C, D, and E. And that’s what we’re trying to do is give them the data for all of those points. So you may see people making decisions based on all of those metrics, and all of those things that that firm offers, as opposed to just monetary decisions, right? Am I going to be happy where I go? Am I going to be able to live the kind of life that I want to leave, all of that’s going to happen and that those firms that are doing that are going to change the dynamic of the rest. So it’s not all about starting salary, and it’s not all about the PPP. There’s a lot more in the mix now. And there may be a reshuffling of firms, as some firms begin to realize they need to change how they do business in order to have, you know, people that stay with them and people who want to join them.

Rachel  40:48

There will be an interesting thing to watch here in the coming years, especially as your company continues to roll out these new tools.

Laura Leopard  40:54

As a group as a women working in law firms, as men working in law firms, we have to look and demand and ask for that change to happen.

Rachel  41:04

Excellent. Well, that’s why we’re so excited to have you on as a guest today to get these ideas and these topics out there! So special. Thanks to you, Laura, for joining us today. We really appreciate it.

OUTRO  41:19

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

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Legal News Reach – Season 2, Episode 1: Immigration & Its Impacts on the U.S. Labor Market with Raymond Lahoud [PODCAST]

Welcome to our first episode of Season 2! Rachel and Jessica speak with Raymond Lahoud, a Member of Norris McLaughlin, P.A., focusing on immigration law. Immigration issues are complicated enough, but how does that factor into boosting the U.S. economy?  Listen to our last episode to find out more.

Be sure to also check out the latest episode of Mr. Lahoud’s podcast, “Immigration Matters.”

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

Full Transcript

INTRO  00:02

Hello and welcome to Legal News Reach, the official podcast for The National Law Review. Stay tuned for our discussion on the latest trends, legal marketing, SEO, law firm best practices, and more.

Rachel  00:15

Today’s episode is the first of the second season, where we’re broadening our focus to trending topics in the legal industry. Today we’re speaking with Ray Lahoud, Member of North McLaughlin about the impact of COVID-19 on immigration and labor shortages. Ray, would you like to tell our listeners a little bit about yourself?

Raymond Lahoud  00:30

Well, thanks for having me, Rachel. It’s really awesome to be here on this podcast and to talk about such an interesting area of law right now, in the world, particularly immigration law. I’m a partner at Norris McLaughlin, where I serve as the Chair of the Immigration Law Group here. I handle employment-based immigration matters, removal defense, employment, verification, I noncompliance all types of immigration matters, a broad spectrum with my great team of attorneys, paralegals, and assistants here at North McLaughlin. So thank you again for having me. It’s great to be here.

Rachel  01:05

One of the first topics we wanted to focus on here is immigration’s impact on labor shortages. You’ve written a lot about the impacts on the U.S. economy due to labor shortages. Can you explain how immigration can help remedy the situation?

Raymond Lahoud 01:18

I think we can all agree that without labor without employees, without people to go and work in whatever company, whatever organization, whatever place that exists out there that that needs to provide services or goods to the American public needs, needs employees. Without labor, there’s no economy, immigration right now is really a huge part of the employment demand, or the employment shortage share. There’s a lot of Americans who are able to legally work who just don’t want to work or have you know, taken different decisions or different approaches on life or what they want to do with their life. But we still need people to perform some of these essential functions from farming, to nursing care to handling, you know, mushroom picking to manufacturing, immigration is the way that has long proven to be a way to solve that through temporary visa programs through you know, green card programs that existed out there. And under the Trump administration. And when COVID hit, things really got hit pretty hard and really slowed down the ability for people to bring in international employees to the United States that fill that gap.

Rachel  02:29

This has been an ongoing issue. So are there any policy changes on your radar that will help solve this issue, either through immigration or otherwise?

Raymond Lahoud 02:38

The only way to solve this issue is through comprehensive immigration reform. For over a decade now, we’ve been using the number of 11 million people that are in the country without documentation, I think we can all agree that that number is significantly higher, probably 20, or 30 million people, step one is going to be trying to figure out how we handle those 20 to 30 million people or even Federalists 11 million people that 11 to 20 million people that we have the United States without documentation. And that means that some people are going to have to be deported, who you know, may have certain crimes may have certain issues in terms of their background, but a significant number of these individuals have been in the country for a long time, working without authorization, pleading taxes. So there has to be a process of legalization for those individuals, which is the big issue. We don’t what is legalization for them. And then there also has to be a secure border where people can’t just cross the border without any documentation. I mean, every country has borders, borders are important. We can all see how important borders are right now with what’s happening in Ukraine. You know, comprehensive immigration reform includes having an ability for individuals to come into the United States to work to claim asylum if they have to, to help our employers here in the United States who need employees because people are just not taking part or not applying to Americans are just not applying to take on these jobs. The great resignation has, for some reason taken over the United States and it continues. So what do we need? We need comprehensive immigration reform? How do we get there? It’s getting members of Congress to agree daily, I’m talking to clients who will arrive in Pennsylvania and they’ll say how do I start working here I just crossed the border assuming that because they heard on Facebook before they came up here are on TikTok are though like that it would be very easy for them to claim asylum. So I’m dealing with a lot of clients and potentials and individuals who have just recently crossed the border now feel that they’re stuck in the United States because they can’t leave because they have to go through proceedings and they can’t work. I mean, there’s also in this representation, let’s say that we keep hearing the numbers, millions are coming to the United States. There are millions of encounters. So you may have one person try to come to the United States four or five times and each one is considered an encounter. And this is a problem that we see from President to President, by the way, and this is why I say we need comprehensive immigration reform. Because let’s go back to 1986. Ronald Reagan was going to deal with the immigration problem we had, you know, millions of people here in the United States back then. And he did put three amnesty 1213 14 million people were granted permanent resident status, they say that cost the turn of California to a blue state once they became citizens top political. In the end, they’re like going back to that every President has made immigration, much tougher, actually very tough. Actually, it was the administration that puts some of the toughest policies when it comes to what’s called the public charge rule. The way our system is written right now is that the executive branch just has so much ability and authority discretionary ability and authority over what to do or what not to do, what they can do what they can’t do in terms of immigration. And then every time a new president comes in, something changes drastically. So you had Obama come in, then he puts in place DACA, you know, gives eight 900,000 people, you know, a temporary quote-unquote, status, and you have President Trump come in, and he takes it away. And then you have President Biden come in. Again, it goes back to comprehensive immigration reform. It’s all just been patchwork since after ’86. Now we have 11, 12, 13, 14, 20 million people here. So it’s-I think the distaste is, is that we’re going to grant people status, and it’s just going to happen, again, has to be a two-fold fix as to be true, comprehensive immigration reform where we’re not, you know, 10 years down the road, we don’t have another 15 million people that don’t have documentation here.

Rachel  06:34

What can companies do to help deal with this shortage of immigrant labor or just labor in general?

Raymond Lahoud 06:39

Every day, I probably field 20 to 30 calls from employers who cannot find employees. It’s the biggest problem. I think that’s facing our country right now. And I’m not sure where it comes from, I really don’t understand what this great resignation is, I don’t know how people can live. Right now, there are several legal immigration processes that are available. One is the H Tubi. system, which is a great way of bringing in seasonal employees for farms for landscaping, contractors, painters, manufacturing work, which we bring workers over here year after year. The H1-B lottery is another visa process. So there’s visa processes that are out there, it’s good to avail as an employer to not be afraid of these processes to you know, when you’re recruiting globally recruit, and when you find a candidate, seek out an immigration attorney and say, Hey, is there a way that I can bring this person over legally sponsor them? Is there a pathway and there are. You have companies like the bigger tech companies that are getting all the big H1-B visas, you have the bigger farming companies that are getting all the H2-B visas, because the smaller ones are not really availing themselves, the legalized programs that exist there, we have a lot of people who are coming into the country across the border, these individuals, they’re turning themselves into the Customs and Border Protection. So there’s an expectation at some time that, you know, some of them have fears of returning, I mean, that they’re going to start going through processes. These are individuals that will likely have employment authorization documents, within a year or so don’t forget about the American worker offer good wages, offer good benefits offer time off the world’s change right now in terms of how things work. So if there’s, you know, remote operations that you can offer, do that offer child care services, if you could, but you have to be creative.

Jessica  08:25

So I would love to get your perspective since you’ve been involved in immigration law for so long, and you definitely have a great grasp on the history of a lot of immigration policy changes. I know with COVID, you know, the legal industry got backed up in general; just court cases being rescheduled, I would really like to know what the last two years for immigration law has looked for you how has it changed because of the pandemic updates on border restrictions? I’d love to get your take on that.

Raymond Lahoud 08:52

When the pandemic hit immigration really became incredibly, incredibly busy from the travel restrictions to a title 42 at the border expulsions to people that were detained in immigration custody that were getting COVID It was a disaster for a long time for a lot of people. A lot of people out there who are stuck in other countries, you know, travel bans were coming up and moving and changing by the minute. And companies. You know, the companies that we represent, the employers that we represent that keep operating there were essential. They were central companies and they were healthcare companies. They were companies that do industrial manufacturing or handle electricity and the like, so they needed their employees here. So during COVID, we spent a lot of time trying to figure out the ways to bring a lot of these employees into the United States through the waivers that existed. They’re reaching out to the State Department to seek special exemptions. And then at the same time, you know, the immigration to the deportation defense part of it really came to a halt. court hearings were halted for all like non detained cases, which took an already incredibly backlogged immigration court system and took it about I have four more years behind now. So you’re probably looking at a good 10 years before an immigration judge for a trial. And after continuances and the, like 10 cases COVID really spread pretty heavily, we have to file lots of petitions and requests to try to get clients that were detained by immigration out of custody within the United States. So a lot happened during COVID. And when it came to immigration, in those days, there were nights where I was awake at, you know, two, three in the morning, making sure a client was able to get back in.

Jessica  10:34

We’re in such an interesting environment at this point, especially more recently with the Ukraine crisis, but we also had a changing of the hands in the White House, all the different elections. So there’s been a lot of transition period. And you know, we touched on it a little bit already. But the changes moving forward, I mean, now that the pandemic is having some type of release, besides needing that comprehensive immigration law changes, do you see any other changes now that we’re getting out of the pandemic, whether that’s Ukraine specifically, or just in general? What do you think is gonna happen here?

Raymond Lahoud 11:07

I think that we’ve, we’ve moved on to our next disaster with our next emergency, we’ll say, which is Ukraine right now. This is all that we hear about on the news, there aren’t COVID numbers at, you know, at the bottom, how do people are dying, how many people died and the like, I just feel that, you know, Ukraine has as taken over COVID. Now COVID brought on a time of remote hearings, which are still continuing now. The immigration courts, making fun of them with, you know, video, WebEx hearings in Zoom hearings, are able to move them quicker through the system and the like, and I have some serious issues. When it comes to remote hearings. You know, there’s huge due process concerns and having my client be able to testify in person where the judge can see his or her face. You know, there’s some very serious concerns in that. So they’re changes that, you know, came about from COVID, in terms of remote operations and the like, but I don’t know if they’re necessary to our benefit, even for, you know, immigrants work were coming in. And also, you would think that we really learned how to process things a lot faster. You know, what, we’re kind of hit with the crisis, and we just aren’t, you know, our embassies are still in a huge backlog when it comes to processing visas and, you know, fiance petitions and merit-based petitions and the like, but we are seeing movement here stateside within that, honestly, in terms of change. I mean, you just, it’s all patchwork.

Jessica  12:27

If memory serves me correctly, I know the Biden administration has put more emphasis on visas for STEM. I think people coming either for schooling or for employment, if I’m remembering correctly, do you think that’s a step in the right direction, I know it’s another “patch,” but…

Raymond Lahoud 12:43

 The United States has a huge number of international students in the United States, even locally here in what’s called the Lehigh Valley, Pennsylvania, Lehigh, Lafayette, Cedar Crest Moravian, their F huge international student populations and international student populations are critical to cultural diversity to you know, just to the growth of the school and it’s bringing the world together. So as part of it, so students will come here from abroad, Saudi Arabia, countries, China, Japan, Australia, they’ll come to the F1 visa complete their courses here to get a bachelor’s degree. And if they typically, if you come in under the f1 visa, regardless of your degree, you’ll get 12 months of what’s called occupational practical training. And that’s because you 12 months of just training in your, your area of of studies, when you were in school, if you earned a STEM degree science, tech, engineering or math degree, you can get an additional 24 months of occupational practical training. To me, that’s great to me for bringing people here, and we’re educating them, we should keep them here and you know, give them jobs here. I mean, we there’s no reason that you know, we should be training talent and, you know, bringing in talent from across the world, and then just sending them, you know, back to, you know, their home country, particularly if they’re willing to stay and work here and become members of society in good standing that contribute pay taxes. Why not? Even if you were you came in, you knew you were coming in across the border, see, you’re still a kid, and then you turn over all of your information to the government when you’re 17 or 18 years old. And then, you know, four, eight years later, the Trump ministration says that they are going to get rid of it and it goes through courts who put it back in and take it out and put it back in and then there’s an injunction lifted, and these are hundreds of thousands of lives in people’s hands. People really have to recognize that there are faces to these individuals that have deferred action that have temporary protected status that there are faces to them. And it’s more than just politics. But could you imagine if you were in that position with deferred action, not knowing should I finish going to college should I spend the money should I take a job, what do I do next?

Jessica  15:01

COVID already caused a very large limbo feeling if you’re coming from another country, or you’ve been here, and then you might be told, “oh, you gotta go back to where you came from.” And I can’t imagine being young when you come here and then going back to a country you don’t even really know.

Rachel  15:17

So we wanted to get your viewpoints on Ukrainian refugees and immigration, how does this compare to other refugee crises that we’ve had in the past

Raymond Lahoud 15:27

Ukraine refugee crisis has brought the US government to its peak when it comes to refugees, and the like, they’ve acted very quickly, to bring in them what’s called Temporary Protected Status. You compare it to you know, what happened in Afghanistan and the lake, there are a lot of differences, I would say just that how quickly they are granted temporary protected status. You know, if you’re from Ukraine, there’s countries that are setting up policies like Canada to try to bring in people from Ukrainian. And I hope that these policies that these countries are putting together to help refugees in times of crisis will stay for other countries to beyond Ukraine’s. Hopefully this won’t be the last time that you’ll see other countries open their doors to help people. My mom and dad are both born in Lebanon and immigrated here during the civil war in the late 70s. And it was devastating. And the US opened its doors to the Christians from the north, they came in and became an integral part of the society life here in Pennsylvania, it’s good to see that in Ukraine, but we’re going to have other countries that are going to have similar issues. And who knows where, you know, President Putin may stop, we just really have to think long term about it. Because we also have to be realistic. And we can only handle so many people in our country. I hate to say that.

Rachel  16:49

How does that factor into maybe some of the more, like, long-term policy changes that the country could implement? Is there a need to sort of rethink how we bring in refugees, and how many people we can take and how that process really goes?

Raymond Lahoud 17:02

There is, there is, but how do you rethink that? You know, how do you it’s even just saying, you know, how many people can we take in I know you just feel I feel internally bad because you don’t want to turn anybody away, that’s really hurting, you know, and but we have to, thankfully, I’m not in Congress to make up those decisions. But I think there has to be, you know, some sense of reason, and balance. And I’m not really sure what that is.

Rachel  17:29

Like the US has to work together with other countries to make sure that we help them out of people that need to be helped. I don’t think it’s realistic for one country to sort of shoulder most of the burden.

Raymond Lahoud 17:38

It’s very hard to get refugee status. I mean, you don’t just kind of come into the United States and walk-in and may take years to go through I mean, if you’re going to the Iraqi refugee have to go in through the United Nations refugee program, there’s a huge process you have to go through, it’s not easy. The things that happened in Afghanistan kind of made known the issues with our you know, the refugee program and the lake. But it’s not, it’s not an easy process to go through. You can’t just walk into an embassy, US Embassy and say, Hey, I’m I’m afraid of where I’m living, I want to go to United States,

Rachel  18:09

Right, yeah. And I imagine on top of even having to be in a situation where you have to flee your home.

Raymond Lahoud 18:15

Anybody that goes through pain, like a harm or fear, you know, I mean, whether it’s domestic violence, and those are the worst of cases where I have clients who are coming in suffered extreme domestic violence, like at the hands of their spouses and the like, and, and with those, you know, you know, what you do, you can send them back, you know, when that when the spouse is going to kill them on, you know, they’re dead on arrival. And so those are cases that we’re dealing with inside the United States right now. It’s like we have refugees coming in. But we also have asylees, here in the United States that were people who are in here applying affirmatively for asylum, we have a lot of people in the United States that are here on like a protective status we do. We do so much. And other countries are recognizing that if you take a look at Australia, so people are coming into the to Australia, they don’t go into the country, they sit off-island for a long period of time for they claim asylum or anything like that. The other countries that are out there, I think that they all have some pretty unique set of circumstances that are there, and in ours has a lot of issues that we have to really work through.

Rachel  19:16

So you’ve written about policy changes in Pennsylvania aimed at helping undocumented immigrants, you know, entrepreneurs, people who are getting driver’s licenses, things like that. I was curious to get your insight on how you see these changes impacting both immigrants in the state as a whole, like what sort of have been the changes there?

Raymond Lahoud 19:33

Driver’s licenses in Pennsylvania, we’re seeing a movement. New Jersey, just fair aware, they pass legislation in the implement to the driver’s licenses, people who may not have a social security number or the like, right now in Pennsylvania. I believe it’s in the House Committee. It’s being discussed. I don’t see it moving out of there given the current makeup of the legislature. I don’t foresee it happening in Pennsylvania anytime soon. It does keep coming up a lot by members of the State House, I think it’s a good idea because people are driving. Let’s get real. There are people without papers in the United States. I mean, if we don’t realize that, I think that we’re just fooling ourselves. So, you know, it’s if it’s a way for them, they’re voluntarily providing their information, you know, why not register it, they can get their insurance. It’s not a federal issue. It’s a state issue as the as right to get driver’s licenses, it’s state-by-state. Pennsylvania considers that they look at it, they bring it up, but it always fills in committee doesn’t go anywhere. Pennsylvania, has the political planet as a swing state, as we all know, and immigration is a hot topic issue here.

Rachel  20:37

I’m glad to hear that at least it’s even if it’s not, you know, moving forward, I think it being on people’s minds is a good thing. So in terms of changes like that, and maybe large scale changes, like we spoken about how we just need really large scale immigration reform, I was wondering, we could talk about the changes that you think need be made to both attract and retain immigrants in the United States, I think there’s a lot of talk about specifically, after the Trump administration, a lot of international students to stop coming here, you know, the United States is losing talent to countries like Canada and other places like that. So I was curious to get your thoughts on that.

Raymond Lahoud 21:14

COVID-19 opened up a different way of kind of operating, we had spoken earlier, where, you know, these companies are now recognizing that they could get that global talent opened up a facility in India or, you know, have somebody remote in from Canada, or actually just physically move their locations to Canada, or their offices or their manufacturing sites to another country, because it’s easier to bring labor in. I think that other countries are starting to embrace certain kinds of immigration, like I know that Canada is, you know, they’ve implemented that another investment-based immigration system, they’ve made it easier for Indian workers a certain kind of ticket during COVID in the light. So there are countries that are taking no more proactive approach to bringing in people but during the Trump administration, people from abroad really felt they weren’t welcomed in the United States. And I saw that a lot with students, and there was a significant number. It’s coming back, and I’m seeing the numbers come back, and just from the schools locally, that that we’re working with. So in terms of the International Student Program, you know, I do feel that it’s picking back up after COVID. And after the Trump administration, I just think we have to kind of keep going with it to make sure that, you know, we know that the people that we’re inviting into our country, we know that we have to welcome them here and treat them kindly, and work with them. Because we’re just we are one world one people. I’m really just, I think it’s a realist here, and that, you know, you have immigration lawyers who, you know, will just, you know, push things to like an end and say, No, open borders, and you have no people on another end that would say, you know, close everything to anybody. And but I think we have to have recent ability. I mean, you just can’t close the United States to everything. I mean, you can’t close the United States to the globe’s cultures, we just have to find a middle ground. And I hope that, you know, I was able to kind of present some of that reason that no middle ground, that’s there being immigration where it’s hard to take, you know, some things that Trump did weren’t necessarily I’m going to do but if somebody heard me say that, and I will now, you know, they would be shocked at it. But I think that’s what the issue is, is that there’s no meeting of minds. People just become enemies, because somebody has a different political opinion. You know, I think there really has to come a realization that we just can’t shut the borders down completely. And you can’t open the borders up completely. There just has to be a middle ground that we all have to reach in. Our members of Congress really have to grow up and hopefully, they will. And hopefully, they’ll work with the Biden ministration. We’ll get somewhere.

Jessica  23:52

I actually have an interesting question. Since you’re located in Pennsylvania; Lancaster’s, a certified welcoming status for refugees. Do you think that’s helpful in situations like Ukraine? And like if more cities did that, do you see that as a positive direction?

Raymond Lahoud 24:06

I do, I do. I mean, like…Philadelphia has, like a welcome center for Lancaster was one of the counties like that. It’s really what they do with it is, yeah, it certainly hops. The more the better. Governor Wolf has actually taken very proactive actions towards the Ukrainian community here, even locally. But again, there’s more than just the Ukrainian community that are suffering from prosecution. So hopefully, it’ll open our minds to how we deal with other areas and in the future when this happens and how other countries can work together with it. But yeah, it does. It does help because it shows that we care you know, things like that only they can start shows that we care. You know, even if you know, New Jersey, they couldn’t give them give people a real ID driver’s license, but they gave them a license to drive and pencil and they can leave the state drive and add to it, it’s still a driver’s license so they can give What they want to know as much as they can give them and if that’s what Lancaster was able to give them, that’s what it was. They can’t give driver’s licenses but um, you know, that opens up a door for immigrants and to have stuff like that it’s good for them to have programs like that is good.

Rachel  25:14

Well, excellent. Thanks again, Ray for joining us today. We had a great conversation.

Raymond Lahoud 25:20

 It’s really been good being here talking about immigration. It’s an interesting topic. And hopefully, we’ll see things changing in the years to come and I’m here to talk to you whenever. Yeah, thank you for having me.

OUTRO  25:40

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

Copyright ©2022 National Law Forum, LLC

A Lawyer’s Guide to Integrated Marketing

Like many lawyers, I did not learn about marketing in law school. I knew nothing about communications or media relations before law school, either. When I graduated and began practicing at a boutique matrimonial law firm, there was no internal or external marketing resource, and no direct conversations or plans about public relations or branding. One founding partner talked about the importance of reputation for connecting with potential clients and how his connections in the legal community resulted in many referrals, but he never mentioned marketing.

Yet, as I tagged along to bar association meetings, drafted articles that the partner published in a legal journal, and received encouragement to network at Inns of Court sessions, I saw this side of legal practice come to light. We didn’t call it marketing, or PR, and it was well before social media, but I understood that the partner was intentionally marketing the practice and generating awareness of the firm’s experience — an effort that resulted in new client engagements.

When I decided to leave law after a few years, I enrolled in a New York University course about marketing for professional services. As luck would have it, the instructor was Deborah Brightman Farone, an extraordinary legal marketer then and now — she was inducted into the Legal Marketing Association’s Hall of Fame at the organization’s 2022 annual conference. Deborah introduced me to the field of law firm marketing, and since then, I have worked with hundreds of lawyers and professional marketers on business development and integrated marketing plans, and have helped them make marketing part of their daily practice.

Most lawyers need to understand what this marketing thing is all about. I see firsthand their appreciation for the importance of building client relationships, cross-selling expertise within the firm, and networking. However, I don’t see an understanding of the terms and tactics of legal marketing as often. I think that with so much to learn in law school, there just isn’t time to learn the business side of law. Once a lawyer is practicing law, there may be little direction about how to reach prospects and referral sources, stand apart from other lawyers doing similar work, and find time to “market oneself.”

I frequently read articles where lawyers describe their routes to becoming partner or managing a practice or office. The words “PR” or “marketing” may not appear in their answers, but as someone who has advised lawyers about practice growth for more than 20 years, I know that positioning themselves as knowledge leaders played a role in the success of their relationship-building and practice development. And that, of course, is marketing.

This article will take you through five steps I always examine with lawyers who are just getting started with marketing, or participating in a firmwide marketing program.

  1. Acknowledge the Need for Education

Earning a JD and passing the bar exam prepare a lawyer for the practice of law, but not the business of law. My colleague Vivian Hood recently wrote, “Law schools focus on teaching the art of law, and not so much on the art of connections.” Courses about marketing, public relations, or social media are not part of the law school curriculum. Rather, law school teaches students to read cases and apply precedent, analyze facts and frame arguments, and spot the real issues and see the red herrings. Likewise, legal writing courses, moot court competitions, internships, and other hands-on work prepare them for practicing law. Their understanding of marketing may extend to billboards they see on their way to work, law firm ads in legal journals, or networking events with bar associations.

Lawyers know how to practice law, but do not know what marketing is or how it supports business development and revenue. Education is the first step to heightening awareness. On many occasions, I have explained how PR works so lawyers understand the events that result in being quoted in a trade publication, or the behind-the-scenes steps that go into earning a speaking engagement at an industry event.

  1. Discuss Perceptions of Marketing

The only way to know how an attorney perceives marketing is to ask, and then provide guidance about worthwhile and suitable marketing efforts.

Lawyers often shy away from marketing because they associate it with sales. My colleague Glennie Green explains, “Most attorneys envision some sort of sales when the idea of marketing and business development comes up. They see car salespeople, or aggressive pitches for timeshares. But that is the wrong mindset. Business development is not sales. Business development is cultivating and nurturing relationships.”

Relationships can be built in many ways. A common misconception is that marketing success is based on the ability to be a natural rainmaker who can walk into any room and instantly make connections for the firm. That belief can create unrealistic expectations and undue stress, because rainmakers are few and far between. Relationships can be built and nurtured without that unique rainmaker quality. Everyone adapts to situations differently ­— some of us are introverts, others extroverts, or a combination of traits.

  1. Assess the Impact of Previous Experiences

Lawyers may base their perceptions of marketing on prior experiences. Lawyers have told me, “I wrote many articles in the past, and they never amounted to any new business.”

“I traveled to speak at a conference, and not a single attendee turned out to be a new client.”

“I did an interview with a reporter who misquoted me.”

“I have a LinkedIn profile, but I’m not interested in doing anything with it; it’s just like Facebook.”

Many people fear failure, and many transactional lawyers and litigators are driven by winning. It is no surprise, then, that lawyers question the value of something that has not been a winner in the past. Understanding and acknowledging these hesitations can lead to productive discussions about marketing and, more specifically, about techniques that may be better suited for the lawyer.

  1. Discuss the Time Commitment

The billable-hour model of legal practice can affect a lawyer’s availability to market their practice. Too many business-driving commitments will inevitably frustrate a lawyer and diminish the success of marketing. It’s better to work with a distinct set of action items that can take only a few minutes a day rather than many hours each week.

Glennie Green has helped lawyers identify their advocates — assistants, paralegals, the firm’s librarians; people they can partner with to achieve their action items. One managing partner with a busy practice serves as an example of this effort. “He has made a commitment to conduct a certain number of meetings a month with current and potential referral sources,” she says. “He enlists a paralegal in the office to help schedule those meetings, as well as maintain his ‘marketing’ calendar. This allows him to keep his focus on his practice and manage the firm. He regularly checks his calendar for new appointments, and he says he looks forward to seeing whom he will meet with next. Once he realized that he didn’t have to do it all and enlisted some help, his plan and marketing goals became not only manageable but systematic.”

  1. Find the Comfort Zone

Marketing efforts must be tailored to a lawyer’s personality and interests. Everyone has a different comfort level. Some lawyers love to speak at conferences, and others would rather research a case and write an analysis for a journal. One lawyer may already enjoy engaging on social media, and another may feel crushed for time but would be amenable to doing a 30-minute interview with a reporter. Perhaps a lawyer may enjoy participating in an association’s events or committees. Green explains, “Knowing a lawyer’s areas of confidence, and recognizing what causes any discomfort, is crucial to establish the right marketing plan with the flexibility to change direction as needed.”

The avenues for marketing include website content and branding, social media posts and engagement, media relations, published quotes and articles, rankings submissions and awards, conferences and speaking opportunities, networking, events, and more. The questions and conversations I’ve provided lead to more precise choices of marketing tactics, as well as more informed expectations of results. An integrated marketing and business development program offers lawyers a selection of tactics, with deliberate matching to their preferences and the flexibility to change as needed.

© Copyright 2008-2022, Jaffe Associates

Cryptocurrency As Compensation: Beware Of The Risks

A small but growing number of employees are asking for cryptocurrency as a form of compensation.  Whether a substitute for wages or as part of an incentive package, offering cryptocurrency as compensation has become a way for some companies to differentiate themselves from others.  In a competitive labor market, this desire to provide innovative forms of compensation is understandable.  But any company thinking about cryptocurrency needs to be aware of the risks involved, including regulatory uncertainties and market volatility.

Form of Payment – Cash or Negotiable Instrument

The federal Fair Labor Standards Act requires employers to pay minimum and overtime wages in “cash or negotiable instrument payable at par.”  This has long been interpreted to include only fiat currencies—monies backed by a governmental authority.  As non-fiat currencies, cryptocurrencies therefore fall outside the FLSA’s definition of “cash or negotiable instrument.”  As a result, an employer who chooses to pay minimum and/or overtime wages in cryptocurrency may violate the FLSA by failing to pay workers with an accepted form of compensation.

In addition, various state laws make the form of wage payment question even more difficult.  For example, Maryland requires payment in United States currency or by check that “on demand is convertible at face value into United States currency.”  Pennsylvania requires that wages shall be made in “lawful money of the United States or check.”  And California prohibits compensation that is made through “coupon, cards or other thing[s] redeemable…otherwise than in money.”  It is largely unclear whether payment in cryptocurrency runs afoul of these state requirements.

Of note, the U.S. Department of Labor (“DOL”) allows employers to satisfy FLSA minimum wage and overtime regulations with foreign currencies as long as the conversion to U.S. dollars meets the required wage thresholds.  But neither the DOL nor courts have weighed in on whether certain cryptocurrencies (e.g., Bitcoin) are the equivalent, for FLSA purposes, of a foreign currency.

Volatility Concerns

When compared to the rather stable value of the U.S. dollar, the value of cryptocurrencies is subject to large fluctuations.  Bitcoin, for example, lost nearly 83% of its value in May 2013, approximately 50% of its value in March 2020, and recently lost and then gained 16% of its value in the span of approximately 15 minutes one day in February 2021.

Such volatility can give payroll vendors a nightmare and can, in some instances, lead to the under-payment of wages or violation of minimum wage or overtime requirements under the FLSA.

Tax and Benefits Considerations

Aside from wage and hour issues, the payment of cryptocurrency implicates a host of tax and benefits-related issues.  The IRS considers virtual currencies to be “property,” subject to capital gains tax rates.  It has also confirmed in guidance materials that any payment to employees in a virtual currency must be reported on a W-2 based upon the value of the currency in U.S. dollars at the time it was delivered to the employee.  This means that cryptocurrency wage payments are subject to Federal income tax withholding, Federal Insurance Contributions Act (FICA) tax, and Federal Unemployment Tax Act (FUTA) tax.

For 401k plan fiduciaries, the Department of Labor recently issued guidance that should serve as a stern warning to any fiduciary looking to invest 401k funds into cryptocurrencies.  Specifically, the DOL wrote: “[a]t this early stage in the history of cryptocurrencies, the Department has serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct investments in cryptocurrencies, or other products whose value is tied to cryptocurrencies.”  Given the risks inherent in cryptocurrency speculation, the DOL stated that any fiduciary allowing such investment options “should expect to be questioned [by the DOL] about how they can square their actions with their duties of prudence and loyalty in light of the risks.”

Considerations for Employers

Given the combination of uncertain and untested legal risks, employers should consider limiting cryptocurrency compensation models to payments that do not implicate the FLSA or applicable state wage and hour laws.  For example, an employer might provide an exempt employee’s base salary in U.S. dollars and any annual discretionary bonus in cryptocurrency.

Whether investing in cryptocurrencies themselves to pay employees or utilizing a third-party to convert US dollars into cryptocurrency, employers should also stay abreast of the evolving tax and benefits guidance in this area.

Ultimately, the only thing that is clear about cryptocurrency compensation is that any decision to provide such compensation to employees should be made with a careful eye towards the unique wage, tax, and benefits-related issues implicated by these transactions.

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

Apple Smartwatch Antitrust Case Survives, Showing ‘Freedom of Design’ is Not Absolute

Judge Cites ‘Associated’ Anticompetitive Conduct Claims

It’s a case that challenges the limits of the “freedom of design” usually enjoyed by companies accused of product design changes alleged to harm competition. Ordinarily, a design change is not the kind of conduct that runs afoul of the antitrust laws, but on March 21, U.S. Judge Jeffrey S. White from the Northern District of California denied Apple Inc.’s motion to dismiss an antitrust case brought against it by AliveCor Inc. The suit alleges that Apple unlawfully maintained its monopoly in the market for heart rate analysis apps by updating WatchOS, the Apple Watch operating system on which AliveCor’s heart rate analysis app runs. (AliveCor, Inc. v. Apple Inc., No. 21-cv-03958-JSW, N.D. Calif.).

Heart rate analysis apps analyze the user’s heart rate in real time using a sensor close to the user’s wrist and determine whether the user’s heart rate is normal or irregular. The app runs constantly while the device is worn and alerts the user when a situation arises requiring an ECG recording and medical analysis. AliveCor also sells an electrocardiogram-capable wrist band for the Apple Watch and related WatchOS software that analyzes reading from the band. AliveCor claims that its products—the ECG-wristband hardware and software and its heart rate analysis app—“helped change the perception of the Apple Watch from an accessory to a personal health monitoring tool.”

AliveCor calls its heart rate monitoring app “SmartRhythm.” According to AliveCor, when sales of SmartRhythm took off Apple was inspired to announce an update to WatchOS with its own heart monitoring app designed to exclude AliveCor from the U.S. market for WatchOS heart rate analysis apps.

SmartRhythm works by using data from the Apple Watch’s heart rate algorithm. According to the complaint, Apple’s update to WatchOS altered the heart rate algorithm in a way that prevents third-party developers from being able to detect heart rate fluctuations and irregularities. As a result of these changes, SmartRhythm could not provide accurate heart rate analysis, and AliveCor removed it from the market.

Consequently, Apple is a monopolist in the WatchOS heart rate analysis app market, which AliveCor claims Apple is maintaining with exclusionary design changes to WatchOS, in violation of Section 2 of the Sherman Act, California’s Unfair Competition Law, and Section 17200 of California Business and Professions Code.

The court denied Apple’s motion to dismiss AliveCor’s monopolization claim in what it characterized as the “[single brand] aftermarket for WatchOS apps.” Applying the factors enumerated by the court in Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1044 (9th Cir. 2008), the court found that the WatchOS app aftermarket was wholly derivative from the primary smartwatch market, the alleged restraint applied only to the aftermarket, Apple’s aftermarket power was not obtained through contract terms reached in the primary market, and that competition in the smartwatch market does not discipline anticompetitive practices in the WatchOS app aftermarket. Accordingly, the court ruled that AliveCor’s market definition met the Newcal standards for a “single product” relevant market.

Apple argued that a company that improves a product to the benefit of consumers does not violate antitrust laws “absent some associated anticompetitive conduct,” citing the leading “freedom of design” case of Allied Orthopedic Appliances Inc. v. Tyco Health Care Group LP, 592 F.3d 991, 998-99 (9th Cir. 2010). The court quoted the holding of Allied: “If a monopolist’s design change is an improvement, it is necessarily tolerated by the antitrust laws, unless the monopolist abuses or leverages its monopoly power in some other way when introducing the product.”

Apple argued that its update to WatchOS was purely a design change that benefitted users, with no associated anticompetitive conduct. It observed that AliveCor hadn’t established that consumers use Apple’s app instead of some third-party app, or that Apple rejected any third-party apps, or that no other third-party heart apps are available to Apple Watch users. But the court rejected those arguments, noting that Apple failed to provide any legal authority that would require such allegations.

Apple ignored AliveCor’s allegations that Apple abused or leveraged its monopoly power “in some other way” by changing its heart rate algorithm to make it effectively impossible for third parties to inform a user when to take an ECG. AliveCor contended that Apple’s updated heart rate algorithm, which was pushed out to all earlier Apple Watch models, did not improve user experience. Its purpose was to prevent third parties from identifying irregular heart rates and offering competing apps based on that data. “These allegations present the type of ‘associated conduct’ that makes product design changes cognizable under antitrust law. Plaintiff’s allegations plausibly establish that Apple’s conduct was anticompetitive,” Judge White held. A case management conference set for May 20.

Commentary

It is truly difficult to see how some separate, “associated” conduct by Apple other than its design change to WatchOS violates Section 2. It seems more straightforward to consider the design change itself to be a cognizable anticompetitive act. It may be time to drop the fiction maintained in Allied v. Tyco that design changes are “never” antitrust violations unless accompanied by some “other” conduct. Here, Apple has created the market itself in the form of an OS platform used by millions of consumers who depend on it to access all manner of competing complementary products. Under those circumstances, it should be uncontroversial to hold a platform operator liable under the antitrust laws for design changes that exclude competitors or foreclose participants from the market, without indulging in the fiction of “associated” conduct.

© MoginRubin LLP

The DOJ Throws Cold Water on the Frosties NFT Founders

The U.S. Attorney’s Office for the Southern District of New York recently charged two individuals for allegedly participating in a scheme to defraud purchasers of “Frosties” non-fungible tokens (or “NFTs”) out of over $1 million. The two-count complaint charges Ethan Nguyen (aka “Frostie”) and Andre Llacuna (aka “heyandre”) with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956.   Each charge carries a maximum sentence of 20 years in prison.

The Defendants marketed “Frosties” as the entry point to a broader online community consisting of games, reward programs, and other benefits.  In January 2022, their “Frosties” pre-sale raised approximately $1.1 million.

In a so-called “rug pull,” Frostie and heyandre transferred the funds raised through the pre-sale to a series of separate cryptocurrency wallets, eliminated Frosties’ online presence, and took down its website.  The transaction, which was publicly recorded and viewable on the blockchain, triggered investors to sell Frosties at a considerable discount.  Frostie and heyandre then allegedly proceeded to move the funds through a series of transactions intended to obfuscate the source and increase anonymity.  The charges came as the Defendants were preparing for the March 26 pre-sale of their next NFT project, “Embers,” which law enforcement alleges would likely have followed the same course as “Frosties.”

In a public statement announcing the arrests, the DOJ explained how the emerging NFT market is a risk-laden environment that has attracted the attention of scam artists.  Representatives from each of the federal agencies that participated in the investigation cautioned the public and put other potential fraudsters on notice of the government’s watchful eye towards cryptocurrency malfeasance.

This investigation comes on the heels of the FBI’s announcement last month of the Virtual Asset Exploitation Unit, a special task force dedicated to blockchain analysis and virtual asset seizure.  The prosecution of the Defendants in this matter continues aggressive efforts by federal agencies to reign in bad actors participating in the cryptocurrency/digital assets/blockchain space.

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