In the Weeds? Humira “Patent Thicket” Isn’t an Antitrust Violation

The US Court of Appeals for the Seventh Circuit affirmed that welfare benefit plans that bought the drug Humira did not have valid antitrust claims against the patent owner. The Court found that amassing patents by itself is not enough to give rise to an antitrust claim, and that the welfare benefit plans would need to prove that the patents were invalid. Mayor and City Council of Baltimore, et al. v. AbbVie Inc., et al., Case No. 20-2402 (7th Cir. Aug. 1, 2022) (Easterbrook, Wood, Kirsch, JJ.)

AbbVie owns a patent covering Humira, which is a drug used to treat arthritic and inflammatory diseases. Humira is not covered by the Hatch-Waxman Act because it is a biologic drug, rather than a synthetic drug. Biologics are covered by the Biologics Price Competition and Innovation Act (BPCIA), under which a competitor must ask the US Food and Drug Administration for permission to sell a “biosimilar” drug based on certain guidelines. From the first sale of the original drug, the competitor must wait 12 years to enter the market. If the original drug seller believes that a patent blocks competition and initiates litigation, the competitor is still free to sell its biosimilar drug. The competitor sells at risk of an adverse outcome in the litigation.

The original Humira patent expired in 2016, but AbbVie obtained 132 additional patents related to the drug. After the 12-year BPCIA requirement passed, none of AbbVie’s competitors chose to launch a biosimilar. Instead, competitors settled with AbbVie on terms to enter the US market in 2023. In exchange, AbbVie agreed that enforcement of all 132 of its patents would end in 2023 even if they were not set to expire.

Welfare benefit plans that pay for Humira on behalf of covered beneficiaries accused AbbVie of violating Sections 1 and 2 of the Sherman Antitrust Act. The payors argued that AbbVie’s settlements with potential competitors established a conspiracy that restrained competition in violation of Section 1, and that AbbVie’s “patent thicket” allowed AbbVie to reap unlawful monopoly profits from Humira after expiration of the original patent in violation of Section 2. The district court dismissed the complaint. The payors appealed.

The issue on appeal with respect to Section 2 was whether the payors had to prove that all of AbbVie’s Humira-related patents were invalid. Under the Walker Process antitrust doctrine, a party may be liable for an antitrust violation if it knowingly asserts a fraudulently procured patent in an attempt to monopolize a market. The payors did not argue that all 132 of AbbVie’s patents were fraudulent. The Seventh Circuit reasoned that because the patent laws do not set a cap on the number of patents a person (or company) can hold, the payors would need to prove that each of AbbVie’s 132 Humira-related patents were invalid to succeed in showing a violation under Section 2. Not only did the payors fail to prove that all 132 patents were invalid, but they did not even offer to do so. The Court thus agreed with the district court that AbbVie did not amass a patent thicket to maintain monopoly profits from Humira.

The issue on appeal with respect to Section 1 was whether AbbVie’s settlements with potential biosimilar competitors were anticompetitive. The Seventh Circuit found that the payors could have a Section 1 claim if they were injured by the terms of AbbVie’s settlements with its competitors (for example, by showing that AbbVie overpaid a competitor to defer entry). The terms of AbbVie’s settlements allowed the competitors immediate entry to the European market, and AbbVie agreed to US market entry before its last Humira-related patents expired. The Court found that those terms, as well as the payors’ failure to show that AbbVie overpaid the competitors to delay their entry, rendered the settlements lawful.

The Seventh Circuit therefore affirmed the district court’s dismissal.

© 2022 McDermott Will & Emery

Estate Planning Marketing: Tips & Tricks to Grow Your Practice

To be successful, estate planning law firms must have a comprehensive marketing strategy. We’ll dive into marketing tips that will help you attract new clients and grow your estate planning business. We will begin by addressing estate planning and then discuss the skills required to work in this area. After that, we will dive into a variety of digital marketing tips that you can use to attract more clients. These tips include social media, SEO, email chains, and many others. Finally, we’ll provide a few words about Lawmatics – an online marketing platform designed specifically for lawyers.

As an estate planner, getting in front of as many potential clients as possible is key to a successful practice. But how do you do that? This blog post will discuss tips and tricks for marketing your estate planning law firm. We will begin by addressing estate planning and then discuss how to market your firm using social media, SEO, and email chains. We will also discuss the benefits of using Lawmatics services to help grow your practice!

The rising number of individuals aged has contributed to the increasing demand for estate plan services. Is your estate planning practice effective at attracting more clients? A successful estate planning campaign should incorporate all relevant marketing methods. The best plan for lawyers beginning their clients’ development should be based on a clear plan to leverage their knowledge to gain clients.

Overview of Estate Planning Law

Estate planning is a process that helps individuals and families protect their assets while also ensuring that their wishes are carried out after death. It can encompass various activities, including estate tax planning, drafting wills and trusts, and creating estate administration plans.

A solid estate plan should take into account everything you own. To get you in the proper frame of mind, consider the many forms of property that make up your estate:

  • Real estate and property (e.g., houses, land)
  • Personal property (e.g., cars, artwork, jewelry)
  • Bank accounts
  • Retirement assets, stocks, and securities
  • Life insurance policies

Many individuals overlook all of the aspects that go into a finished estate plan. Estate planning entails more than simply putting your last will and testament in motion. You’ll help families anticipate as many circumstances as possible.

Skills Required to be a Good Estate Planning Lawyer

Estate planning law is a specialization within the legal field that deals with estate-related tasks such as estate tax planning, drafting wills and trusts, and creating estate administration plans. As an estate planning lawyer, you must comprehensively understand these areas to provide sound advice to your clients. In addition, you must also be able to communicate with your clients and understand their needs effectively.

You Think Ahead

Estate planning lawyers must think long-term because they often work with clients for many years. During this time, estate planners are responsible for helping their clients safeguard their assets and ensure their wishes are fulfilled after they die.

You Like to Help People

Some estate planning lawyers work with families through generations. When one client passes away, estate planners may be enlisted by any surviving family members, which means decades of service. Your client relies on you to safeguard their family assets. They entrust you to craft the plan that aligns with local and federal laws, manages taxes, and passes most of the wealth to the beneficiaries upon death.

You Like Dealing with Financial, Trust, and Taxation Issues

You must also communicate with your clients about their financial situation and estate planning goals. Many estate planners need to track a client’s assets, liabilities, and estate taxes.

Why Implement a Marketing Strategy For Estate Planning Attorneys?

Estate planning attorneys face a competitive marketplace that makes attracting clients difficult. An effective marketing program that attracts new business clients will be essential for achieving the company’s objectives and growth.

Beating Out the Old Guard

It can be challenging to break into markets with an “old guard.” Established players in a market often have a decisive advantage, and it can be hard to dislodge them. This is especially true in estate planning, where many attorneys have been practicing for years. Young attorneys must be prepared to work hard and develop creative marketing strategies to attract new business.

Competing Against Do-It-Yourself (DIY) Options

Many individuals may be tempted to take on writing their will themselves to avoid paying for a lawyer’s services. After all, many online resources, like LegalZoom, RocketLawyer, and other DIY kits, are available to help people create a comprehensive estate plan without legal assistance.

Competing with Financial Industry

The financial industry has been increasingly targeting estate planning to expand services. As a result, estate planners must continuously adapt their marketing strategies to stay ahead of the competition. There are many estate planning law firms, but how do you make yours stand out from the rest?

However, we know that estate planning is a complex process that requires the expertise of a qualified lawyer.

Foundations of Marketing Best Practices

A well-crafted marketing strategy can help you attract new clients, expand your client base, and grow your estate planning law firm.

Track Your Leads with Call Tracking

Call tracking is a valuable tool that estate planning law firms can use to track the success of their marketing campaigns. By monitoring the number of calls generated by a campaign, your estate planning law firm can measure the effectiveness of your marketing efforts.

Use a call-tracking service that offers local or toll-free number options, call recording, and detailed reporting.

Use a CRM to Manage Relationships

A CRM, or customer relationship management system, is a valuable tool that estate planning law firms can use to manage their qualified leads and clients.

A CRM can support your estate planning law firm’s marketing efforts by helping you keep track of all the essential details about your clients. With detailed information about each client’s assets, liabilities, and estate, your estate planning law firm can more effectively market to them. Additionally, a CRM can help you track the progress of your estate planning services, so you can more effectively measure the success of your marketing campaigns.

You can attract and retain clients more effectively by using a CRM to support your estate planning law firm’s marketing efforts.

Nurture Leads with Email Campaigns

One of the most effective ways to keep potential estate planning clients in mind is through email nurture campaigns. An email nurture campaign involves sending targeted emails to potential clients to persuade them to become clients. Creating a simple birthday email campaign can delight and remind your potential clients.

Each of the three foundations of marketing efforts – call-tracking, CRM, and email nurture – is necessary for estate planning law firms to succeed in attracting new clients.

5 Channels to Market Your Estate Planning Firm

Estate planning law firms have a unique opportunity to market their services in various ways. Networking, Google My Business, Content Marketing, Social Media, and Paid Advertising are five effective methods that estate planning law firms can use to reach more clients and grow their business.

Estate planning law firms should create a marketing plan that encompasses all of these strategies based on your goals, budget, and target audience.

1. Referrals, Online Directories, & Local Involvement

Start your marketing strategy by leaning on and growing your network. You can’t just sit and wait for clients to come to you. You need to be proactive and generate leads by getting the word out about your law firm.

Referrals and Networking

Start your marketing efforts by tapping into your network and community.

One of the best ways to market your estate planning firm is to receive referrals from other professionals. Financial advisers, accountants, insurance agents, and other attorneys are all potential sources of referrals for estate planning law firms.

Get Involved in Local Events

Attending and sponsoring local events allows estate planning law firms to gain exposure and build relationships with the community. Consider sponsoring a Fun Run or 5k that donates to cancer research, a local choir, theater, or museum, or buy a little league’s baseball shirts.

You show that you care and are committed to the community. Sponsoring local events is also a great way to get links to your law firm website.

When another website links to your estate planning law firm’s website, it is called a backlink. This strongly indicates to Google that your website is an authority on the topic and should be ranked. Backlinks are essential to SEO, and estate planning law firms should take advantage of them to improve their website’s ranking.

Online Directories

One of the most effective ways to market your estate planning firm is by listing your firm in online directories. Online directories are websites that allow businesses to list their contact information, products, and services. Listing your estate planning firm’s online directories can help you reach more clients and grow your business.

Some standard legal online directories you should consider are:

  • Avvo
  • Nolo
  • Justia
  • Lawyers.com and Lawyer.com (yes, they are different)
  • HG.org
  • Martindale-Hubbell

2. Google My Business

While, in a sense, Google My Business (GMB) is an online directory, it is also the best way to get in front of your community. It allows you to control your estate planning law firm’s appearance in search results and Google Maps.

The best part about using Google My Business is that it is a free business listing.

Claim & Fill Out Your GMB Profile

Claiming your GMB profile is the first step in taking control of your estate planning law firm’s online presence. To claim your business, you must log in to Google and either claim an existing profile or create a new one. You will need to coordinate with Google to receive a verification code to verify your profile. The default method for obtaining the code is by postcard to the address.

After you have claimed your listing, it is time to fill out your GMB profile. Your GMB profile should include:

  • Your business name
  • Your contact information (i.e., address, phone, website)
  • A description of your estate planning services
  • Your hours of operation
  • Answer questions

When filling out your Google My Business profile, include keywords that people may use to search for your services in the description.

Use GMB Like It’s Social Media

Did you know that you can post on GMB? When you post new content on your GMB profile listing, you provide local customers with helpful information about your company. This contributes to increasing your local authority.

Treat posts as additional ways to answer FAQs, promote your website, and add additional keywords.

Add Photos and Videos to your GMB Listing

Showcase your firm’s office, team, and services by adding pictures to your profile. Adding photos allows potential clients to understand you and your firm better.

Take it one step further and get 360 photography of your law office- think Street View, but indoors. To get 360 photos on your Google My Business, you must work with a Google Trusted Photographer.

3Optimize Your Website

Creating and updating content on your website will increase your authority on Estate Planning in the search results. The more information you provide on your website will help your site appear prominently online.

Practice Area Pages

When we talk about web content, we don’t only mean blogging. Make sure your website details all of your practice areas. Explain your topic and how you would handle that issue, and end with a call-to-action (e.g., “call today for a consultation).

Blogging for Busy Lawyers

An estate planning firm should consider blogging to keep its website up to date with relevant content. Use your blog to answer questions that your clients ask you over and over again. A blog is a great way to show your expertise on the topic and can also act as a resource for potential clients.

Experiment with other forms of content

Once you’ve built your website and started blogging as part of your estate planning marketing strategy, you can experiment with different media.

Estate planning can be a complex process, and many people have questions about it. Try filming a video to answer some of the most common questions. This is a great way to show your expertise and help potential clients understand estate planning better.

You can also create long-form, helpful content like an eBook that people can download. This is a great way to show your expertise and provide potential clients with additional information about estate planning.

4. Social Media and Reviews

Estate planning lawyers can use social media to connect with potential clients and build their businesses. Estate planning lawyers can attract new clients and grow their practices by creating interesting, engaging content.

Go Where Your Clients Already Are

Your prospective clients are online. They are watching videos, reading articles, and checking social media. Social media can be highly effective for keeping in touch with existing clients, reaching new ones, and expanding your referral network. That said, choosing the proper social media channels is important.

It makes sense for estate planning lawyers to be visible on social media platforms like Facebook, Twitter, and LinkedIn. Lawyers can use these platforms to share blog posts, answer client questions, and connect with potential clients.

Linkedin, Where Everybody Knows Your Game

LinkedIn is the most useful channel for estate planners. LinkedIn users are usually more professional, more established, and better educated, so it’s only natural to have a presence on this platform.

Like most social platforms, you can use it to share analyses or insights about changes in legislation or other timely news. You can promote your new blog articles, share information about your business, and add videos or images to enhance your posts.

Regular posts will help you establish yourself as an estate-planning expert and help you reach more potential clients.

Ask Your Clients for Reviews

Online reviews are incredibly important and give social proof to prospective clients. Make it easy for your clients to leave a review by providing them with a link to your online profiles to leave a review.

In an ideal world, every happy client would leave a 5-star review on Google, but sometimes clients are shy about leaving reviews on Google because it will list their name publicly. If your client feels more comfortable leaving a review on LinkedIn, Facebook, or even an online directory like Avvo—encourage them to do so.

5. Social Media and Reviews

As with all marketing strategies, you want to strike a balance in your approach. SEO and social strategy require consistency over time. Building strong relationships through networking and community involvement also take time.

Paying for advertising is a great way to ensure that your company is always at the top of the search results, and it can keep the phones ringing when your firm is in a slump.

Paid Advertising Campaigns for Estate Planning Attorneys

Law firms can also consider using paid marketing strategies to reach potential estate planning clients. Placing ads in relevant online and offline publications or websites targeting your desired audience can be extremely effective.

Additionally, law firms can use targeted online advertising, such as pay-per-click advertising or display advertising, to reach individuals interested in your services.

Use a Dedicated Landing Page to Track and Convert Leads

If you are investing in paid advertising, you need to take the extra step to include a dedicated landing page for each of your paid campaigns.

If you choose to have your landing page on your website, remove all site navigation so the lead will stay on that page and convert. You can also build out landing pages on platforms that specialize in converting PPC leads.

Your PPC landing page will be specifically designed to capture the contact information of individuals interested in learning more about estate planning services.

The advantage of using a landing page is that you can track how many people are visiting the page and how many are filling out the contact form. This data will be extremely valuable as you assess your ROI for your paid campaigns.

Test Google Local Service Ads

Google Local Service Ads is a relatively new advertising platform that allows you to place ads for their services in the local search results. These ads appear as a sponsored listing at the top of the search results and include a call-to-action button that allows potential clients to contact the law firm quickly.

To be eligible to participate in Google Local Service Ads, all of the attorneys at your firm must meet specific requirements, such as being licensed and insured. Additionally, your firm’s attorneys must undergo a background check conducted by Google.

Despite the effort, Google Local Service Ads can be an extremely effective way to reach potential estate planning clients who are searching for estate planning services in your area because you will appear at the top of search results (even above other PPC ads), and Google will have verified you.

Grow Your Estate Planning Practice With Lawmatics

Some of the most effective marketing strategies for an estate planning practice include creating helpful, optimized website content to address FAQs, sponsoring local teams or charities, and filling out your Google My Business. These strategies will help you reach prospective clients and connect you to the community.

FAQs

? What are the best places for estate lawyers to have an online presence?

There are several great places estate planning lawyers can have an online presence.

A website is a must-have. Your website should accurately represent your practice and what you provide. Consider an search engine optimization (SEO) strategy to optimize your website so that potential consumers may locate you online with ease.

You should also consider social media sites, as they are ideal for establishing connections with potential clients. LinkedIn is a fantastic platform for estate planning professionals to network and develop relationships with new clients.

? How can Google attract clients who need help with wills & estate planning?

You can use Google products like Google My Business and Google Local Service Ads to get in front of prospective clients.

To start, you need to claim and verify a Google My Business listing and optimize it for search engines, making it easier for prospective clients to find you. Once you have your GMB listing, you can write posts related to estate planning.

Google Local Service Ads will display your law firm information at the top of the search results page and push people to call you.

©2022 — Lawmatics

U.S. Government Pursues More Aggressive Action to Curb Espionage at Universities

The U.S. Governmental Accountability Office (GAO) thinks the FBI and other agencies are not doing enough to address the espionage threat on U.S. university campuses. It issued a report, “Enforcement Agencies Should Better Leverage Information to Target Efforts Involving U.S. Universities” on June 14, 2022, urging the FBI, the Department of Homeland Security, and the Department of Commerce to step up their outreach efforts to address the threat. Commerce, DHS, and FBI have all concurred with GAO’s recommendations. As a result, U.S. colleges and universities to face yet another organizational risk: an increase in campuses visits by export control and law enforcement agents.

The threat: U.S. export control laws consider the disclosure to non-U.S. persons of technology, software, or technical data to be exports, even if the disclosure occurs in the United States.

The overwhelming majority of non-U.S. persons studying and working at U.S. universities are not security risks and are valued members of their academic organizations. But U.S. intelligence agencies have long warned that foreign state actors actively acquire sensitive national security data and proprietary technology from U.S. universities.

A lot of the technology flow abroad from U.S. universities is perfectly legal, for two reasons: First, most university research, even in cutting-edge technology, is exempt from export controls under an exemption known as “fundamental research.” Second, even in cases where the fundamental research exemption does not apply, it takes time for the U.S. government agencies to add new items to the export control lists they enforce; namely the U.S. Munitions List, administered by the U.S. Department of State, Directorate of Defense Trade Controls; and the Commerce Control List, administered by the U.S. Department of Commerce, Bureau of Industry and Security.

But at the same time, either through inadvertence or outright espionage, unlawful transfers of technology to foreign nationals take place. A 2006 report by the U.S. Office of the National Counterintelligence Executive found that a significant quantity of export controlled U.S. technology is released to foreign nationals in the United States unlawfully each year.

Clash of values: One important issue for higher education in addressing trade controls compliance is cultural in nature. U.S. universities value open, collaborative environments which drive and accelerate innovation. For those institutions, the idea of cutting off information flows conflicts with those cultural norms. By contrast, U.S. export controls aim to protect U.S. national security by hindering the flow of sensitive information to potential adversaries.

GAO’s recommendations: The GAO report recommends that U.S. trade control agencies take more aggressive steps to curb foreign access to sensitive technologies at U.S. universities. The recommendations include steps to enhance risk assessment and ranking of universities by risk, and steps to increase agency cooperation in planning and conducting outreach visits to universities. As a direct result of this report, U.S. universities are going to receive more visits from U.S. government agents.

Practical takeaways:

  • Universities: Consider reevaluating your risk. The threat has evolved, and the U.S. government response is also evolving. A risk evaluation using modern tools such as a premortem can help you know where to dedicate resources to update your export control policies, procedures, and training. Any unlawful escape of technology or technical data are much more likely to be detected and punished under the new regime, in part based on the GAO report. Organizations have to evolve with the threat.
  • Students, faculty, and administrators: Consider how to jealously guard your academic freedom, but be wary of the national security risks of sensitive technology falling into the wrong hands.
  • Research sponsors: More and more U.S. university research is sponsored by U.S. companies and government agencies. Research sponsorship agreements play a major role in striving for both national security and academic goals of the U.S. university system. Sponsors need to be sensitive to how these agreements are drafted. Sponsors must be aware of the espionage threat to their technology. But imposing too many restrictions in the contract may undermine the applicability of the fundamental research exemption and hinder the success of the project.

Conclusion: In the face of organizational threats, institutions do best when they heed their values. In the realm of protecting sensitive technology, we must constantly evolve with the threat. But we must also continue to carefully balance national security considerations with our bedrock values of academic freedom and openness.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Law Firm Specialization: Why It Matters

While in theory, the idea of casting a wider net may lead you to believe that you’ll catch more fish, the truth is it doesn’t always apply to business. When it comes to catching customers, the more you appeal to one specific kind of customer, the higher your success rate, and the more qualified you’ll be at what you do. Practicing law is no exception. In today’s age, more and more law firms are starting to recognize legal specialization as a necessity for tapping into their target market. Not only does it benefit clients, but it also benefits legal professionals. 

Benefits for Lawyers

Better Client Relationships

When you specialize in an area of law, you intimately know your niche, whether that be corporate law, health law, criminal law, environmental law, or international law.  As such, you can provide the best possible representation to your clients and better pinpoint solutions to their problems as a certified specialist. Exclusively specializing also means that you are well informed of all of the latest updates, news, legal issues, strategies, and changes in that area of law. When compared to having a general understanding of the law, this is a tremendous benefit to your clients since you offer tailored legal guidance unique to their circumstances. A law practice that has handled hundreds of cases similar to their clients’ can anticipate and navigate the nuances of such a case on a much deeper level than someone who doesn’t have the same kind of experience under their belt.

Less Competition

As an expert in a very specific area of law, you effectively position yourself as the easy choice to opt for you over a competing attorney with a more generalized approach. In essence, your competitor pool shrinks significantly. General practice attorneys with a wide breadth of practice areas are going to be competing with every other such law office within a ten-mile (or more) radius. Yet, if your law practice specializes in boat accident cases, you’re likely one of few options, if any, in your respective region, thereby lowering your marketing costs, and potentially increasing client acquisition volume for this legal specialization. Assuming your reputation is top notch, the more specific you can be about your legal services, the more challenging it is for competitors to keep up with you.

Improved Visibility

Law firms that choose to specialize don’t just stand out, but are often featured in publications related to their practice area. The more you can partner with local businesses that are related to or adjacent to your area of expertise, the greater your sphere of influence. For instance, if your practice focuses solely on estate planning for the highly wealthy, you’ll likely opt to leave business cards where the wealthy are bound to spend time, like country clubs, civic clubs or auctions. Get creative with candidates in your referral network; it’ll pay dividends over the lifetime of your business.

Greater Satisfaction

As the saying goes, “do something that you love and you’ll never work another day in your life.” When choosing what you want to specialize in, consider an area that speaks to you on an emotional and even philanthropic level. One of the benefits of choosing a niche is doing something that you truly enjoy day in and day out. Not only will you get a real sense of fulfillment on the best days of your profession but clients can easily sense when your practice area originated from a true passion of yours. Plus, it’s always more advantageous to be a big fish in a small pond as opposed to a small fish in a big one.

Increased Expertise

Expertise involves becoming a thought leader in your area of law. Naturally, mastery requires experience. Attorneys who bounce between different types of cases don’t have the same familiarity with the nuances and challenges as someone who handles the same type of legal representation every time. While it’s always a good idea to have legal malpractice insurance, specializing in one niche area of expertise may also lessen the chances of your law firm having to put it to use. When you are recognized as an expert in your specialization area, you don’t just attract more clients, but you also win more referrals through client trust.

Better Efficiency

Completing the same workflows and legal documents over and over again in quick succession equates to faster completion, since you know them inside and out. As such, specialized lawyers can master the administrative side of running their law firm in a fraction of the time.

In today’s legal climate, more and more legal professionals are turning to automation tools to streamline recurring processes such as client intake and billing. Time-consuming document generation, for instance, can now be done in a matter of seconds rather than hours thanks to automated workflows.

Greater Profitability

When your practice is specialized you’ll increase your value thanks to the power of referrals.  Concentrating on one type of case brings extra knowledge and experience to the table that clients yearn for, who will in turn refer you to their friends and family. Since 80% of a law firm’s business typically comes from referrals, the more targeted you are, the more your practice may benefit from word of mouth.

As a result of your greater understanding of the inner workings of certain cases, you’ll develop a strong reputation for getting clients the results they’re after, ultimately increasing your overall profitability. The more you can offer experience paired with efficiency, the more work you can take on, increasing your overall revenue.

Benefits for Clients

Improved Guidance

When a client seeks out a legal professional that is well versed and focused on their particular needs, they in return receive much better guidance for their specific context. Beyond the legal support that a specialist offers, also comes a deeper understanding of the emotional needs of their client. For more turbulent cases such as divorce cases or immigration, a specialized lawyer can be an enormous benefit to the mental well being of those they have trusted with their case.

Increased Network

Specialists have a wide network of other experts that they can use to the client’s advantage. Because they have a more comprehensive list of contacts to support their case, clients have greater access to leading experts who can provide adjacent services and even strengthen their case.

Better Success Rate

There’s a reason why general practitioners in the medical field typically don’t perform spinal surgery — because it requires unique skills. The same logic can be applied to law. Attorneys specializing in a particular field generally have a higher rate of winning cases in court or settling successfully. Specialized lawyers who see the same case types day in and day out can offer a much higher success rate based on experience and dedication. Those who hire specialized attorneys generally are more at ease knowing they’re in good hands when it comes to their legal proceedings.

When is a Good Time to Consider Specialization?

It can be unnerving to dive into specialization from a generalized legal focus, so it’s important that you read the room first. In order to ensure that whatever you choose to specialize in will deliver the kind of demand that you hope for, answer the following questions using the data at your disposal:

  • What trends are you seeing in the types of cases you currently manage?
  • What is your success rate in those cases?
  • How satisfied were the clients?
  • Which cases have been the most lucrative for you?

If you notice that you take on a considerable amount of one type of case that’s yielding happy clients, then it’s a good indication that it would make a great choice to specialize in. If you don’t feel like you have the experience or know-how to call yourself an authority on one particular niche yet, then allow yourself more time to grow.

Ultimately, there is no defining moment that is the same for every lawyer who chooses to specialize. It all comes down to how much knack and drive you have for one kind of legal resource.

How to Identify Your Specialization Niche

1. Create a Vision

Every achievement starts with a vision. Your vision will be the very foundation of your overall success, and how you are perceived as a brand. When creating your vision, take into account not only your skills but also what drives you. How do you see yourself representing your clients and what do you hope to achieve for them? Are you passionate about one type of law specifically, such as civil rights, intellectual property, or family law? What do you love about practicing law and why? Let these answers be your guiding light when forming a vision for how you hope to stand out.

2. Consider Your Experience

First and foremost, it’s ill-advised to choose a niche that you have no experience in. Choosing to specialize in something that you aren’t well versed in would not only be setting yourself up for failure, but it’s a risk to any potential clients who choose to come your way.

One of the greatest tools you have for narrowing down your choices is consulting with other more experienced lawyers and mentors. Ask them for their advice based on personal stories, recommendations, and experience-based guidance.

Talk to other lawyers that specialize in the area you’re considering and pick their brains. Be direct and ask the questions that matter most like:

  • What are the biggest challenges in this area of law?
  • What are the greatest rewards?
  • What is the success rate?
  • What are the long-term implications?

When you hear about the advantages that law firm specialization can offer, it may be tempting to jump in head first. Yet, it’s important to step back and assess all of your choices. Weigh out the pros and cons, and go back to your overall vision.

Rushing in too quickly can lead to prematurely pigeon-holing yourself into something that ultimately restricts you from your full potential and passions.

Pick a Specialization and Pursue it

There are many advantages to becoming a specialized legal professional. If you can manage to pick a niche and master it, you won’t just find yourself with less competition, but you’ll have a greater devotion to practicing law.

©2022 — Lawmatics

Episode 3: How Law Firms Can Benefit From CRM Technology With Chris Fritsch of CLIENTSFirst Consulting [PODCAST]

Welcome to Season 2, Episode 3 of Legal News Reach! NLR Managing Director Jennifer Schaller speaks with Chris Fritsch, Founder of CLIENTSFirst Consulting, about how law firms can thoughtfully and successfully integrate customer relationship management systems, or CRMs, into their daily operations—boosting contact management, business development, and client service in the process.

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

INTRO  00:02

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

Jennifer Schaller

Thank you for tuning into the Legal News Reach podcast. My name is Jennifer Schaller, the Managing Director of the National Law Review. In this episode, I’ll be speaking with Chris Fritsch, who’s the CRM and Marketing Technology Success Consultant and Founder of CLIENTSFirst Consulting. She’s going to talk to us about CRM technology, specifically how it impacts law firms. Chris, would you like to introduce yourself?

Chris Fritsch

Happy to do so! I am Chris Fritsch, I’m actually a CRM Success Consultant. And no, that is not an oxymoron. For the last over 15 years, my team at CLIENTSFirst has helped hundreds of top firms succeed with CRM and related and integrated technology. I’m actually a little bit of a recovering attorney, which is sort of how I got into the industry. And it’s just been a great 15 years working together with top law firms.

Jennifer Schaller

What prompted you to start CLIENTSFirst Consulting?

Chris Fritsch

You know, that’s a good question. I actually worked at a CRM company years ago, and those companies are terrific at building and selling and installing and implementing software…not necessarily as great at being able to take the time to get to know each law firm to really understand the firm’s needs, the requirements, the culture in order to really help them succeed with the technology. So I saw that was a real opportunity to be able to help clients succeed. The company’s called CLIENTSFirst. And so we’re really focused on sharing information, ideas, best practices for success gained from years of experience doing this, and it has been a great 15 years of growth. And the most important part is we get to help clients.

Jennifer Schaller

So what are the main reasons that prompt law firms to implement CRM systems?

Chris Fritsch

CRM systems are about communication, coordination, and client service. And of course, business development. Law firms of all types and sizes really are focused on those areas. So I think that’s why CRM has been such an important piece of technology over the years.

Jennifer Schaller

What are the most common uses of CRMs in law firms?

Chris Fritsch

Use in most firms starts with contact management and list and event management. Those are some of the fundamental capabilities that CRM systems provide. You know, in law firms we write, we speak, we do events and webinars and seminars. That’s a really big need, and CRM fills that need very, very well. These are things that are maybe not exciting, but essential. So that’s creating a centralized repository of information that can be clean and correct and easily updated. That’s usually where firms start. Being able to have marketing build and manage the list to be able to get all the events done and managed, to be able to allow the attorneys or assistants to update lists, and just basically making sure that clients and prospects and other contacts are getting the information that the attorneys and the law firm need to put out there. You know, because as attorneys, if we can’t share information about our experience and our expertise and changes in the law and capabilities, then it makes it really challenging to develop business. And so that’s where CRMs start, but what we’re seeing more recently is a focus on more advanced business development features. Business development has taken a little bit longer in legal than in some other professional services, but I think we’re getting there. So we’re seeing a lot more emphasis on those tools right now. A lot of people right now are actually switching CRM systems because they want to get some more of these advanced business development features.

Jennifer Schaller

What are some of the features law firms should be implementing but that aren’t being utilized enough, in your opinion? Or does that kind of piggyback on business development stuff?

Chris Fritsch

Yeah, that’s a big piece of it. The big thing is activity tracking. That’s one of those things that everybody agrees, it would be incredibly valuable to know who’s taking who to lunch, who are we doing proposals with? Who are we having phone calls and meetings with? But the challenge with that is those have to be entered manually. A lot of things in CRM we’ve been able to automate, but that’s one that you really just can’t because the information lives in the attorney’s head, right? So it’s got to be done, and you can’t have computers or even assistants doing that really well. But everybody wants the information. So I think that has been a big challenge. Probably one of the biggest firm challenges is to get attorneys to sort of function that way and think like salespeople, whereas outside of legal, you know, you can mandate behavior and do reporting on activities. In a professional services, specifically, in a law firm model that’s a little more challenging, there’s sort of a hesitancy to mandate anything. So we do have challenges with that. That also sort of turns into adoption. You know, that has always been a challenge as well. In a law firm time is money, literally. And so anything that they have to do in terms of technology that takes away from serving the clients and frankly, billing time, there’s got to be a lot of value there. Any of the features that require them to do data entry are going to be challenging because we have taken a little bit longer to be focused on business development. There are really advanced pipeline features in a lot of the CRMs, outside of legal, and now in some of the ones that are vertically focused for law firms, but getting attorneys to enter data into a pipeline is probably going to be challenging, and it may not be the highest and best use of their time. And so a lot of firms that are dealing with implementing pipelines, they’re having internal business development resources actually do the data entry, and then just getting the information related to reports and pitches and things. Let them give that information to the attorneys to use when they need it.

Jennifer Schaller

These people are billing their time in six-minute increments. What are some of the built-in features of CRMs that help law firms capture the things that lawyers are reluctant to do other than…. obviously, there needs to be a culture change. But what are some of the things that make it smoother?

Chris Fritsch

So there’s actually a tool that I’m a big fan of called ERM, or enterprise relationship management. And it is a technology most of the CRMs in the legal vertical do have built in, but there are also some freestanding systems. And what they do is they create the contacts from the signature blocks of the emails. So the attorneys don’t have to deal with contact data entry and collection and updating. In the past, the systems worked with sort of an Outlook Sync process where the contacts would flow in, but lately, people don’t use Outlook like they used to. I mean they still use it for email and for calendar, but not so much address books. So the problem with address books was people were putting data in but never removing it. And so you just ended up with more and more contacts. And you know, they’re not particularly relevant anymore. These ERM systems will create good contacts, because frankly, if you just got a signature block, the information is probably good. And so you enter that data–it does it automatically. And so attorneys don’t have to do data entry, which is great. But it also creates a who-knows-who relationship, which is something we really want to be able to capture. You know, if you want to pitch some client or get a connection in a corporation, you might want to know who in the firm knows that person. The ERM uses an algorithm based on recency and frequency of communication to tell us not just who, but how well they know that person based on frequency and recency of communication. There are also some calendar capture features that are available; I think ERM is really the one that has changed the game. Also being able to have a connected email and e-marketing and event management tool that allows the data to flow seamlessly between the systems is incredibly important, because otherwise you end up with disconnected databases and double data entry, and I think e-marketing systems are also a really big deal.

Jennifer Schaller

Okay, wow, I didn’t know the depth of that. That’s really interesting. One of the things that you’ve touched on is lawyers and law firms and culture and change, so how large, or substantial or established, does a law firm need to be to benefit from a CRM?

Chris Fritsch

Pretty much any firm can benefit from CRM, because again, it is the fundamental communication coordination, client service, business development that’s important to every firm. So they’re different types of software for different sizes of firms. And I’ve worked with the largest firms in the world, and we help them find systems that meet their needs. But every once in a while, I’ll work with a solo or small firm, and they have different needs, and, of course, different budget requirements. And so they have different types of products that make sense for them. But I think pretty much anybody from the largest firm in the world to a solo can benefit from CRM.

Jennifer Schaller

Knowing that small law firms are not a homogenous group, meaning that intellectual property law firms or even a solo can have different needs than a family law practitioner, what would be some of the core features that even smaller law firms can look for in CRM systems, or should kind of have as, like, table stakes?

Chris Fritsch

Smaller firms for the longest time had challenges trying to implement CRM because they were licensed models, they require a lot of professional services to install and implement, and they required a lot of staff to manage, and that’s contrary to the small firm model. Ideally, in a perfect world, they want a less expensive option that doesn’t require as much training and ongoing sort of care and feeding. And what’s happened is most of the software providers have gone to a subscription model because it makes it easier to budget for the software over time, you don’t have a big upfront cost, and a lot of them have also moved to the cloud.

Jennifer Schaller

You’ve touched a couple different times about large law firms having multiple data stewards and dedicated CRM people, but smaller firms or firms that are not in the select 100 may not have those resources. What type of staff is required to succeed with CRM technology, or what tasks would need to be at a bare minimum assigned to somebody within their teams to get it up and running or to make it a viable option within the firm?

Chris Fritsch

The larger the firm and the more complex the system and processes required, the more staff and the more resources that are going to be needed, the more training that’s going to be needed, the more communication and planning and strategy. That’s always important. But right now we’re working with a firm that has a database with 7 million records. They’re bringing together information from databases all over the world, that’s a big undertaking. Whereas the most essential staff in bigger firms with a bigger implementation, you’re going to need perhaps a CRM manager, whereas a smaller firm with a smaller implementation that’s less complex, you’re not going to need a CRM manager, perhaps you might just need someone part time. The most important staff though, is in the area of data quality, because data degrades rapidly. And now with all the changes taking place, people are changing jobs left and right. So data is degrading faster than ever, and you’ve made this investment in the technology. But as an attorney, I can tell you, if the data is bad, then the system is bad, and I’m not going to use it. So you definitely have to focus on that data to get the return on investment from the technology. And you know, firms don’t necessarily want to hire a data steward, but it’s super important to focus on.

Jennifer Schaller

So firms are stretched, and plus, you touched upon too, everybody’s changing jobs. So it’s really tough for smaller firms to hire, any smaller organization to hire. So how does the firm stretch their existing staff to implement or, you know, make viable a useful CRM system, because as you mentioned, it’s only as good as its data?

Chris Fritsch

You know, one of the biggest trends we’re seeing is the move to outsourcing and having that really escalate. You know, firms have been outsourcing data stewards for decades, well, for at least the 10, 15 years that I’ve been around, because not every firm has the luxury of being able to hire a data steward or an experienced CRM manager who’s done a rollout before. Again, most firms don’t have the ability or even the desire to have their internal people doing data work. And so they’re turning to outsourcing to fill these positions, because the great thing about it is you can get the experience and the expertise, and just the amount of hours that you require. So especially for smaller firms, you wouldn’t want to hire a 40 hour a week data steward anyway. But with outsourcing, you can get you know, 10 hours a week, 20 hours a week, whatever you need during the rollout, and then you want to focus ongoing you might need even less, but you need to dedicate those resources, and you don’t have to do it with internal people, because data quality work is not particularly fun, and a lot of people don’t enjoy doing it. But yeah, we outsource a lot of data stewards. It’s actually our highest growth area right now because of the focus on outsourcing.

Jennifer Schaller

Okay, so a part of lawyers is–speaking lawyer to lawyer—a bit of a control freak. You might not have noticed or heard about it, but you know, anyway. So outsourcing is kind of a scary thing to them, meaning, you know, a smaller firm might be in the devil of not being able to hire somebody or being able to hire too much of somebody, as you indicated. So with outsourcing, what would they look for?

Chris Fritsch

I think number one is experience and reputation. All of our folks that do data work, you know, we try to hire the right people that have the aptitude to actually enjoy the work and then train them, train them and retrain them. We spend a lot of time really getting them to understand not just how to use the CRM tools and how to do the data quality, but also to do the research and how to also understand the law firm. There’s a lot of complex relationships in terms of financial institutions, I think that’s a really big piece of it, you know, having a lot of knowledge and experience doing it. For a lot of our clients, very, very large law firms, they have often significant privacy and security issues, so we have a team of US based people, because that helps them with challenges around GDPR. So you may want to ask, where are your people based? Can they do background checks is a really big important thing.

Jennifer Schaller

Oh, wow. That’s true, yeah, especially if they’re doing government or any type of work. You brought up some really good points there. So you mentioned training, so law firms that would consider outsourcing would be then benefiting from the training not only that they receive from a company like yours, but experience that they’ve picked up from other law firms along the way.

Chris Fritsch

The training is challenging. So you know, you have to train and retrain, you know, things are changing all the time with the software and systems. And it really is a big component, making sure that you have good experienced people. And then we also have a team that does quality checking as well, because I think in law more than any other industry even more than in other professional services, you mentioned earlier, you know, being a little bit of a control freak, we want good data. Outside of legal people are thrilled to have data quality of 70% . “We have automated data sources that’ll get you 70% correct data.” In a law firm 70% would get you fired! Right?

Jennifer Schaller

We got 70% of your lawsuit correct! That tends to not be an acceptable thing for attorneys, and I think they tend to hold anybody else that they work with or any product that they use to similar standards. It’d be really challenging. What are some of the things, not that there’s any silver bullet–and I’m sorry, legal marketers, there isn’t–to kind of overcome some of the, you know, maybe they were at another firm, or they had a friend who had a problem with it. Lawyers actually talk amongst each other and have a tendency to, well, they’ll discount it for their own clients, other people’s experiences, but if they have a lawyer friend who went through something, and it was negative, that’s, you know, good as gold. How do you overcome some lawyers’ reluctance, because of bad data quality, which seems to cause the problems to incrementally kind of chip away at that?

Chris Fritsch

You know, we used to think—and these things are tied together–so bad data is a big challenge. And adoption is a big challenge, getting attorneys to “use” the system, right? So we forever have defined adoption as attorneys would get trained, they would go through their data, they would, you know, mark the ones that they wanted to share or didn’t want to share, the assistants had to get involved and it all sort of fell down because again, we’re busy, and you know, time is money, literally. You know, I think the adoption challenge is tied to the data. Because again, if the data is bad, they don’t want to use the system. So going to these more automated ERM systems that pull in good data, I think it’s time that we really need to redefine adoption from attorneys doing data entry, which is probably not the highest and best use of someone’s time who’s billing $500, $200, $1,000 an hour, whatever it might be, let’s do more automation. And the other thing with the data is, it used to be the researchers would say 30% was degrading each year. Now it’s got to be closer to 50% with, you know, the Great Realignment and you know, staffing and people working from home and hybrid and people are moving and companies are starting and ending and getting acquired. So if you don’t focus on the data, if you don’t have good data, it’s going to hinder adoption, and it’s sort of all tied together. So we have to really sort of think through things, and that’s, again, why we are so focused on the ERM methodology. It minimizes attorney data entry, it maximizes good data, it automates the process, it really just is a very helpful tool.

Jennifer Schaller

That’s really interesting. Anything that can be used to make it simpler to get it off the ground. You mentioned data quality. And you mentioned ERM software implementations or kind of pairing it with the CRM system or having a CRM system that has that built in as a way to help with data quality. What is the part, you mentioned, that’s still gonna leave maybe 20 to 30% of the data in there? How are ways that law firms or outsourcing groups or, maybe I got the statistic wrong, cleaning up the balance of that, or is that, even within law, acceptable?

Chris Fritsch

What we’ve arrived at is a process that I have named True DQ, and it’s a multi-step process. For some firms, it might just be one step, an outsourced data steward. But for some firms, it’s multiple steps. First thing that you need to do is assess the mess. Figure out how bad is your data, if you’re getting a new system, right, you may not want to move, if you’ve had your system, 10, 15 years, you probably don’t want to move all that data, you definitely don’t want to clean all that data, it can cost more than the CRM system. So helping figure out strategically, what are the right contacts to move, key client data, top lists, getting all that data together and getting it cleaned and deduplicated  because, again, as, attorneys, we all know the same people. Some of us have good data, some is bad, and it’s got to be researched but you want to minimize the amount of data so you want to do a really strong assessment process upfront. And that’s if you’re changing systems, or if you’re just trying to clean your existing system, you want to focus your limited time and resources where you can get the most value. So then there’s an automated data quality process. So you know, as I said earlier, automated, you know, only gets you part of the way there. But when you’re doing projects, like, sometimes we’re doing projects, where there’s 7 million records. You couldn’t hire enough people or have enough money or time to clean all that data. So you can take an automated process that will get you quickly and cost effectively part of the way there. And then you know, at each step in the process, you can say that’s good enough, or I want a cleaner, I want it better. And for a lot of law firms, they want it as clean as possible. And so the final step would be to add data stewards to kind of finish off the remaining data that couldn’t be automatically matched. And also we have a quality checking process to quality check the results of the automated process as well. There’s a lot that goes on to keep good data clean and correct and complete, but it’s absolutely imperative and essential to CRM success and people are investing a lot of money in these systems. They should be getting value from them.

Jennifer Schaller

I know you can’t, us lawyers are all profound individuals, lump them all into one group–

Chris Fritsch

We’re all special snowflakes.

Jennifer Schaller

We are all special snowflakes! But if you have noticed one trend, is it if the data is better, there’s more chance of a successful adoption in use, or does that tend to be one of the biggest hurdles to overcome?

Chris Fritsch

A lot of the new systems that are ERM focused, the adoption model changes a little bit. So before with sort of the CRM systems that have been around longer, the idea was an Outlook Sync. And then everybody used Outlook. And so the contacts–you know, in a law firm, things are sort of inside out, we don’t just join the firm and get given the keys to the CRM, here are the contacts and clients. Instead, they come in with the attorney and new lateral joins, and the contacts are with them. And so we’ve had these tools to bring in Outlook data, and that required training and installations at the attorney level, and then the data would sync back. And if it was wrong, and it changed somebody’s Outlook, you’d hear about it. With the new ERM methodology, and or maybe a one-way sync, so we’re not, you know, pushing potentially incorrect or what people think might be incorrect data back into the Outlook for the attorneys to see, instead we’re gathering the data through an electronic process, we’re getting good data from the signature blocks, we’re bringing that data in. For some of us, what we do is we actually enhance the data with things like industries, because industry marketing is a big priority for a lot of firms. And nobody says they do it really well, you either have to spend a lot of money to get subscriptions, or you have an automated process, or you can do it manually. And so we try to help firms think through strategies to enhance the data when their data stewarding it with company information, size of company, industry of company, so then you don’t have to rely as much on the attorneys. Like they’ll come and say, “Hey, we want to pull an energy list. Because we’re doing an energy seminar.” Well, you can’t do that. “We want to pull a list of clients.” But without a time and billing integration, you really can’t do that. So these new tools are really helping automate that process, so suddenly, maybe I can’t pull 100% perfect energy or manufacture or whatever, pharmaceutical industry list, but I can get you at least a really good start, and then you can add individuals to it. These are tools we didn’t have years ago. And they really are taking the attorneys out of the process and taking them out of the data entry role. And instead, let’s give them the data they want. Let them be consumers of the data, let’s get them the reports that they need to do what they need to do and minimize the time required. Sometimes it’s staff that are helping to support these processes as well. So never underestimate the power of having good folks to help the attorneys get what they need. And so we’re going to define it instead of attorneys entering data into the system, it’s going to be attorneys getting value out of the system. And that’s how I think adoption needs to be redefined.

Jennifer Schaller

So once they see the value in it, they begin to adopt and of course they see another attorney getting value out of it.

Chris Fritsch

And while you might use ERM, when you implement a CRM you have to consider both a macro and a micro. So we’ve got to be able to get the contacts to do the list to do the events. That’s sort of a core component of it. And if you don’t get that data, you can’t do the other things like the fundamental who-knows-who and the business development. So a lot of firms are going to, “Okay, let’s do an ERM model and capture the context.” And most of the attorneys then don’t have to be users of the system. Instead, you can give licenses to key business developers or practice group leaders or whoever might need the information. And they have the data that they need to do what they need to do. But the day-to-day work of the attorneys is they can focus on the clients.

Jennifer Schaller

That’s interesting to hear, and good to hear actually, that it’s rolling out a lot better. You founded CLIENTSFirst Consulting 15 years ago. I’m not trying to age you, you must have founded it when you were 15 and, you know, even more of a prodigy. Name some of the ways that not only things have changed over the last 15 or so years, but some of the incremental successes I mean, it might have been a small firm, it might not resonate, but what are some of the wins that you’ve had, or some of the ways that you’ve been able to help firms succeed over the years?

Chris Fritsch

A key thing that we do, I think, that firms have found particularly valuable is called a CRM Success Assessment. And so whether you’re getting your first CRM system or you’re looking to change systems, or just improve your current implementation, we come in really getting to know the firm. So we do meetings with key stakeholders throughout the firm to really understand their different needs and requirements, and document that. The last thing you want to do is oh, we need a CRM, let’s figure out what everybody else is using, because that has proven over time to be a recipe for disaster. Instead, it’s all about your unique firm, your needs, requirements, and culture. And so we document that for the firms and then we help them go through a selection process where we take the information from the assessment and turn that into what we call a vendor demo roadmap that we can provide to the providers so that they can follow a roadmap during the demonstration. “Hey, focus on these things that the firm really cares about. Let’s compare apples to apples. Let’s put together the right proposal and get the right technology.” Because that’s the first thing is making sure you get the right system. The other thing is back many years ago, success was defined as, “We’re going to roll it out all at once and everybody’s going to use it.” Right? All the attorneys are going to log in every day. Well, I think it’s been 20 years, and it hasn’t happened yet. So again, we’re sort of redefining success doing the macro for the whole firm, but then really being able to, and this sounds a little counterintuitive at a big firm, but you really focus on the micro. Let’s get the macro right, you know, lists and events. But then let’s find the strong leader that has a problem to solve or a process to improve. And the beauty of CRM is it can do 1,000 things, the problem has been it can do 1,000 things, you should probably do three, or maybe even one. And so you get all these tools, but you only want to implement one here. And then you know, each group might want to do something a little differently, one group may actually track activities, there’s a big firm, we’ve worked with that one group is really focused on activity tracking. And so then configure the system to support that one thing, build the reports out the processes around it, the training materials around it, and you train that group on that thing, and maybe just that thing. You know, but then you might have, you know, a labor and employment group that does a lot of events, and webinars and seminars. Let’s show them how to manage the invitation process and add people to lists because they care about that. And so you focus on special snowflake scenarios, one group at a time, and you call them a pilot group. I had a smart Managing Partner say to me, you do a pilot group, and you get them success, you communicate that success, and you do another pilot group, and everybody feels like a special snowflake. Everybody gets their needs met. But it’s not quick. But it’s not designed to be quick, because CRM is not a project. It’s not an initiative, it is a fundamental improvement in how the firm manages its most important asset, its relationships. So as a result, it never really ends. And so if you do it in little pilot groups, you know, you’ve got forever to get better at it. You know, a lot of it is sort of daunting, you’re like, “Oh, our data is terrible.” Well, that’s okay you know, you don’t have to clean it up 100% right now, you want to do it in pieces and get successes, do it in increments, focus on top clients, focus on, you know, one group is doing an event, focus on their lists. There are a lot of different ways to do it to be effective, and get incremental successes, because they do they all add up.

Jennifer Schaller

Start with a coalition of the willing. Thank you, Chris, for going through some of the pilot groups at larger law firms, that sounds like a good way to find some early successes and kind of replicate it, but maybe in a customized form with different groups within a firm. But again, the majority of law firms are small. And while it’s great to learn from what the larger firms are doing, are there any initiatives, you know, to help smaller firms, either within your company or industry-wide, to work with CRMs?

Chris Fritsch

There are definitely some products out there for smaller firms. But what I have seen over the years is it’s been a little challenging because of the resource constraints and the staffing constraints. And so for years, smaller firms would come to me and say, you know, can you help us find a system? And you know, now the software is less expensive because of the subscription model. But the professional services has always been $50,000 plus dollars. And for a smaller firm, that’s without integrations. You’re looking at a lot of money to do the professional services. And so we’ve actually come up with a new piece of software we’re about to come out with that, hopefully, is going to make it easier for smaller firms to get a system to do what they need to help capture and augment the data and do lists. And so we’re pretty excited about that.

Jennifer Schaller

Okay, so if I can ask, what are some of the features in the product that CLIENTSFirst has coming out that helps small firms?

Chris Fritsch

As you can imagine, because I talk so much about it, I really think ERM is a fundamental piece of it. And we’re also going to be doing data cleaning, because obviously that’s a big focus for us as well and data augmentation with the things that we talked about, business information and industry information. And we’re going to make sure the data is clean and correct and complete. And we’re also going to have a built-in email functionality too. So it’s all integrated into a single platform to help smaller firms succeed as well. So the largest firms in the world, they need a certain type of software, and we thoroughly enjoy helping them succeed. And we just think that the smaller firms could benefit from some additional options.

Jennifer Schaller

That’s good to hear. Otherwise, a whole portion of the market is underserved. As always, thanks to Chris Fritsch from CLIENTSFirst Consulting for joining us today and for updating us on the nuances of CRM, specifically in the legal world or in the law firm environment. Law firms have such a challenging time to know where to start or what to do with what they already have. And thank you for helping us understand some of those steps or decision trees that go into law firms or especially smaller firms picking a CRM system. Thanks, Chris.

Chris Fritsch

Happy to help and thank you for the invitation to be here.

OUTRO 

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What Employers Need to Know in a Post-Dobbs Landscape

On June 24, 2022, in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned both Roe v. Wade and Planned Parenthood v. Casey and held the access to abortion is not a right protected by the United States Constitution. This article analyzes several employment law issues employers may face following the Dobbs decision.

Federal Law

The Pregnancy Discrimination Act (PDA) prohibits employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” In construing the PDA’s reference to “childbirth”, federal courts around the country have held the PDA prevents employers from taking adverse employment actions (including firing, demotion, or preventing the opportunity for advancement) because of an employee’s decision to have an abortion as well as an employee’s contemplation of an abortion. The PDA also prohibits adverse employment actions based upon an employee’s decision not to have an abortion. So, for example, an employer would violate the PDA if it pressured an employee to have, or not to have, an abortion in order to keep her job or be considered for a promotion.

State Law

Several states have implemented “trigger laws,” which impose restrictions or categorical bans on abortion following Dobbs. In addition, states such as Texas have enacted laws that allow individuals to file civil actions against entities that “knowingly engage in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the cost of an abortion through insurance or otherwise.” Relying on that law, Texas legislators have already threatened at least two high profile employers for implementing policies which reimburse travel costs for abortion care unavailable in an employee’s home state. Although the Texas statute is currently being challenged in court, its text provides for statutory damages “in an amount of not less than $10,000” for “each abortion . . . induced.”

Although the issue has not been litigated yet, courts will likely have to decide how the PDA’s protections interact with a state’s anti-abortion laws.

Employer Handbook Policies and Procedures

The Dobbs decision may also impact workplace morale and productivity. Accordingly, employers should consider reviewing their handbooks as well as policies and procedures, with human resources and managers to ensure requisite familiarity with the employer’s social media policy, dress code, code of conduct, and how the employer handles confidential health information. Employers should be prepared for increased public expression from the workforce—including social media posts, discussions with other employees and third parties, and wearing clothing or other accessories reflecting strong opinions. Human resources should also be prepared for an increase in leave requests and employee resignations.

Travel Benefits for Employees Seeking Reproductive Care

In the wake of Dobbs, many businesses in states where access to abortion will be prohibited or highly restricted are considering—or have already implemented—benefit or employee expense plan amendments that would cover travel and lodging for out-of-state abortions. Ultimately, the legal and regulatory future for such plans remains unclear; especially in states where abortion laws are the most restrictive and contain “aiding and abetting” liability.

At a high level, employers seeking to enact such benefit or expense plans may find some comfort in a statement contained in Justice Kavanaugh’s concurrence in Dobbs. Specifically, Justice Kavanaugh wrote:

  • Some of the other abortion related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.

Thus, it appears that outright travel bans or similar prohibitive restrictions would face significant legal challenges, and could be declared void.

At this early stage in the post-Roe era, there appear to be several ‘paths’ emerging for employers seeking to provide travel benefits. Each comes with its own set of potential issues and considerations that employers, in conjunction with their counsel and benefit providers, should evaluate carefully. Below is a brief discussion of some of the travel-reimbursement plans employers have begun to implement or consider in the wake of Dobbs:

  1. Travel and lodging benefits under existing group health plans.
    • Assuming the plans are self-funded and subject to ERISA, they must also comply with other applicable rules such as HIPAA and the ACA.
    • Such benefits may not be available under non-ERISA plans in states restricting abortion access.
    • Generally would be limited to individuals enrolled in the employer’s plan.
  2. Travel and lodging benefits under Health Reimbursement Arrangements (HRA’s).
    • An HRA is a type of health savings account offering tax-free reimbursement up to a fixed amount each year.
    • HRA’s are generally subject to ERISA and cannot reimburse above the very minimal IRS limits (Section 213), such as mileage (.18 cents) and lodging ($50/per day).
    • Should be integrated with other coverage or qualify as an “Excepted Benefit HRA” or else it may violate certain ACA rules that prohibit lifetime annual dollar limits for certain benefits.
  3. Employee Assistance Programs (EAP’s).
    • EAP’s are voluntary benefit programs some employers use to allow employees access to certain types of care without accruing co-pays, deductibles, or out of pocket costs. Historically, EAP’s have been predominately used for mental health benefits such as therapy or substance abuse counseling.
    • In certain circumstances, EAP’s are exempt from the ACA. To be an “excepted benefit,” the EAP:
      • Cannot provide significant benefits in the nature of medical care or treatment;
      • Cannot be coordinated with benefits under another group health plan;
      • Cannot charge a premium for participation; and
      • Cannot require cost sharing for offered services.
    • The first of the above requirements (significant benefits of a medical nature) is highly subjective and may create risk for employers because it is difficult to determine whether a benefit is “significant.” Accordingly, it may be difficult to locate a third-party vendor or provider that would administer travel and lodging benefits through an EAP.
  4. Travel and lodging benefits to employees as taxable reimbursements.
    • Taxable reimbursements—up to a certain amount annually—for travel to obtain abortion or other medical care not available in the employee’s place of residence.
    • Some employers are requiring only receipts for lodging, but are not requesting substantiation of the employee’s abortion procedure. Some argue this might insulate an employer from liability in states with statutes prohibiting “aiding or abetting” an abortion, on the grounds that the employer does not know what the employee is using the benefit for. Ultimately, whether that is true remains largely untested and unclear.
    • Likely more costly for the employer, because the benefit is broader in scope. In addition, employers may run the risk that a payroll reimbursement of this kind could qualify as setting up a “new medical plan,” thereby raising compliance and other related issues.

Additionally, employer travel-and-lodging benefits of this type present innumerable other questions and issues. Such questions should include:

  1. Is the employer’s benefit plan subject to ERISA?
    • ERISA is the federal law applicable to qualifying employee benefits plans, including employer-sponsored group health plans. Plans subject to ERISA must also comply with HIPAA, the ACA, and other applicable rules and regulations. So-called self-funded employer plans are subject to ERISA.
    • With some exceptions, ERISA preempts or blocks the implementation of state laws that ”relate to” the ERISA plan.
    • However, ERISA does not:
      • Preempt a state law that regulates insurance companies operating in the state; or
      • Preempt state criminal laws of general applicability.
    • If a plan is self-insured and subject to ERISA it may not be required to comply with state laws related to abortion services based on ERISA preemption.
    • However, the impact of new and untested civil and/or criminal penalties remains unclear.
  2. What procedures does the plan cover?
    • In this environment—especially in states with the most restrictive abortion laws—employers should have a firm understanding of what specific type of abortion procedures the plan covers.
  3. Specific or “general” travel stipends?
    • As noted above, some companies are choosing to provide travel/lodging stipends and benefits to access abortion care in jurisdictions where the procedure is lawful.
    • Some employers are making this travel stipend more general—i.e., not requiring the stipend be used for abortion, or otherwise naming abortion in the benefit program. As an example, a policy that provides a stiped for an employee to “travel to receive medical care that is unavailable within 100 miles of the employee’s place of residence.”
    • Note that out-of-plan reimbursements to employees are likely taxable as wages. Some employees may choose to gross up such stipends to compensate.
  4. What about privacy concerns?
    • Employers should think carefully about how to provide any benefits or stipends while protecting employee privacy, not violating HIPAA, and—where applicable—not running afoul of so-called ‘aiding and abetting’ legislation.
    • To that end, as noted above, some companies are requiring only that employees provide travel receipts—not documentation of the underlying procedure—to qualify for the benefit, reimbursement, or stipend.
    • Of course, without any verification, there is always the potential for abuse—or otherwise using the program for something well beyond its core intent, such as travel, elective plastic surgery, etc. However, some employers may evaluate the risk of abuse as worth the potential lessening of privacy and other concerns.

Protected Activity

Employers must also be aware that certain speech in the workplace—including speech about abortion—may be legally protected. Although the First Amendment generally does not extend to private companies, the National Labor Relations Act (NLRA) prohibits retaliation against employees who discuss the terms and conditions of employment, commonly referred to as “protected concerted activity.” Thus, employees (1) discussing or advocating for an employer to provide benefits to women seeking reproductive and abortion-related healthcare services, (2) advocating for the employer to take a certain public stance on the issue, or (3) protesting the employer’s public position on the issue, may constitute protected activity under the NLRA.

Contacts and Next Steps

Employment law issues will continue to arise and evolve in the coming months following the Dobbs decision. The EEOC, DOL, and HHS may provide further guidance on how Dobbs impacts employment laws such as the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and PDA. Employers should consult with legal counsel concerning these developments.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.

Summertime 2022 Legal Industry News Roundup: Law Office Hiring and Expansion, Legal Industry Awards, and Diversity, Equity, and Inclusion Initiatives

Welcome back to another edition of the National Law Review’s law firm news roundup. We hope you are staying safe and healthy – please read more below for the latest updates in law firm hiring and expansion, legal industry awards and recognition, and diversity and inclusion initiatives!

Law Firm Hiring and Expansion

Beveridge & Diamond has added two new environmental litigators and regulatory advisors, Jackson Garrity and Tim Nevins.

Mr. Garrity handles natural resource management and litigation at the firm’s D.C. office, with a special focus on state and federal compliance under the Clean Air ActAdministrative Procedure ActCERCLANational Environmental Policy Act, and Federal Land Policy and Management Act. He advises clients on matters such as compliance, litigation, administrative enforcement actions, and more. Mr. Nevins, who works out of the firm’s New York office, practices environmental litigation and provides regulatory guidance to his clients. He has a background in toxic torts, groundwater, administrative rulemaking, and site remediation.

“We are thrilled to have Jackson and Tim as part of the B&D team,” says Paula Schauwecker, Beveridge & Diamond’s Chief Talent Officer. “Their past experiences have enabled them to hit the ground running at B&D. We are excited to see how they will continue to help our clients and contribute to B&D’s long success of being a leading environmental law firm.”

National law firm Dykema has selected Commercial Litigation Practice Group member Isaac Villarreal as Managing Member of the newly established Houston office. Mr. Villarreal is a 13-year complex commercial litigator who frequently works as outside general counsel for midmarket businesses. A highly successful trial attorney, Mr. Villarreal has won a majority of the over 50 cases he has served as first-chair counsel for. He is well-known in the Houston legal community for his work with groups such as the State Bar of Texas Litigation section and Houston Bar Association Alternative Dispute Resolution section. He has been recognized in publications such as Houstonia MagazineH-Texas Magazine, and Texas Super Lawyers.

“It’s been an absolute thrill to be a member of the group establishing Dykema’s Houston office,” Mr. Villarreal says. “The firm’s culture, strong national presence, bench strength of top-notch attorneys, and its pragmatic approach to building upon that foundation in a market where I have practiced extensively throughout my career have helped make the launch of the Houston office an early success.”

Michael Kornak has joined the Partner Recruiting Practice Group as a Managing Director at Major, Lindsey & Africa, in order to assist with the international firm’s legal search and lateral recruitment efforts. Mr. Kornak joins the Chicago office after more than two decades of experience as a litigation and hiring partner, managing professional reviews, work allocation, and various business law practices.

Expressing excitement for Kornak’s arrival, Partner Practice Group Executive Director David Maurer said, “We are thrilled Mike decided to join the Chicago Partner Practice Group. He has extensive firsthand knowledge of all aspects of partner recruiting, including compensation and conflicts analysis, and can adeptly identify opportunities as well as potential issues for both partners and firms.”

Manatt, Phelps & Phillips has added two tax incentive financing experts to the firm’s Impact Investing and Community Development practice. D.C.-based Corenia Riley Burlingame and John Dalton each have over a decade of experience managing tax credit construction and preservation projects for stakeholders interested in benefiting communities through low-income housing, historic preservation, and energy-efficiency investments. Ms. Burlingame assists clients with issues related to resyndication, scattered-site portfolios, and year 15 properties, while Mr. Dalton assists with energy and New Markets tax credits, Opportunity Zone investing, and post-closing asset management concerns.

“As developers, lenders and investors place greater emphasis on social impact investment opportunities, Corenia’s and John’s deep understanding of the nuances within each respective transaction, and their impressive backgrounds guiding clients through these sophisticated matters, further solidifies Manatt’s position as a leader in these types of tax credit deals,” said Neil Faden, leader of Manatt’s Impact Investing and Community Development Practice.

Industry Awards and Recognition

Frank E. Schall of Moore & Van Allen PLLC has been recognized as a leading litigator by Benchmark Litigation. Mr. Schall, who focuses his practice on white-collar, internal investigations, and regulatory defense work, is listed in Benchmark Litigation’s 40 & Under guide to the nation’s most notable up and coming litigation attorneys. He has significant experience in a wide range of matters, including healthcare litigationcommercial litigation, and financial services.

“We congratulate Frank on being recognized by Benchmark Litigation as one of the top young litigators in the country,” said John A. Fagg, Jr., Co-head of Litigation and White Collar Defense & Investigations practice. “We are very proud of Frank’s successes and achievements for our clients.”

ArentFox Schiff LLP was awarded the Chapter 11 Reorganization of the Year by The M&A Advisor at their 16th Annual Turnaround Awards. Of more than 250 participating companies, The Turnaround Award nominees were judged by an independent panel of industry experts. ArentFox Schiff LLP was selected for their work as counsel to CoverFX, a high performance, vegan, and cruelty-free cosmetics company. Partners George Angelich and Justin Kesselman, and Associate Patrick Feeney served as counsel.

Roger Aguinaldo of The M&A Advisor said, “The award winners represent the best of the distressed investing and restructuring industry in 2021 and earned these honors by standing out in a group of very impressive candidates.”

Los Angeles Business Journal has recognized Partners Roland Juarez and Anne Marie Mortimer of Hunton Andrews Kurth in the 2022 Leaders of Influence: Top Litigators & Trial Lawyers list. The list recognizes 76 litigators chosen by the LABJ as “lawyers who go to the proverbial mat to fight for their clients before judges and jury [and] have their own unique set of skills.”

Notably, Mr. Juarez was recognized as a top litigator, handling high-stakes labor and employment cases for California’s largest and most high-profile employers. He has served as Chief Counsel of the US Hispanic Chamber of Commerce for nearly a decade. At Hunton Andrews Kurth, he developed two mentorship programs for minority lawyers.

Diversity and Inclusion in the Legal Field

In conjunction with CT ConsultantsShumaker Advisors has awarded $10,000 worth of scholarships to three minority college students for the Fall 2022 semester. Since 2008, Shumaker and CT Consultants have offered more than $100,000 to minority engineering students attending accredited Ohio universities; this year, the organizations were able to offer the $5,000 Edwin B. Hogan Memorial Scholarship, as well as two $2,500 Ohio Minority Engineering Student Scholarships.

“We are extremely proud of this year’s awardees,” said Ami Williams, Shumaker Advisors Director of Client Relations and Administrator of the CT Scholarships Program. “The field was highly competitive and we look forward to supporting these well-deserving students as they continue their education.”

Foley & Lardner LLP has been awarded with the 2022 Gold Standard Certification for promoting gender diversity in the legal industry. The Women in Law Empowerment Forum, which issued the award, grants Gold Standard recognition to major firms that meet specific objective criteria regarding the number of women among equity partners, in firm leadership positions, and in the ranks of their most highly compensated partners.

Foley has now been recognized with this honor for three years in a row. In order to meet 2022’s certification metrics, firms had to satisfy two mandatory criteria: 25% of equity partners or, alternatively, 40% of the attorneys becoming equity partners during the past 12 months are women, and 10% of women equity partners are women of color or 4% of women equity partners are LGBT. Firms additionally had to meet two of the following for criteria:

  • 20% of the firm and U.S. branch office heads are women.
  • 25% of the firm’s primary governance committee are women.
  • 25% of the firm’s compensation committee or its equivalent are women.
  • 20% of the top half of the firm’s equity partners in terms of compensation are women.

Yvette Loizon, a partner at Clifford Law Offices, has been recognized by the Law Bulletin Publishing Company as one of the Top Women in Law in 2022. On July 20th, the Chicago Daily Law Bulletin and Chicago Lawyer Magazine recognized Clifford’s Ms. Loizon at the 2022 Salute! Top Women in Law Awards Celebration.

The honorees were chosen by the Law Bulletin Media selection committee for their noteworthy efforts in the legal field, more specifically their “work to mentor and promote other women in the profession, their success in the legal community, and being a shining example of leadership.”

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

Copyright ©2022 National Law Forum, LLC

GAO Publishes Report on Technologies for PFAS Assessment, Detection, and Treatment

The U.S. Government Accountability Office (GAO) published a report on July 28, 2022, entitled Persistent Chemicals: Technologies for PFAS Assessment, Detection, and Treatment. GAO was asked to conduct a technology assessment on per- and polyfluoroalkyl substances (PFAS) assessment, detection, and treatment. The report examines the technologies for more efficient assessments of the adverse health effects of PFAS and alternative substances; the benefits and challenges of current and emerging technologies for PFAS detection and treatment; and policy options that could help enhance benefits and mitigate challenges associated with these technologies. GAO assessed relevant technologies; surveyed PFAS subject matter experts; interviewed stakeholder groups, including government, non-governmental organizations (NGO), industry, and academia; and reviewed key reports. GAO identified three challenges associated with PFAS assessment, detection, and treatment technologies:

  • PFAS chemical structures are diverse and difficult to analyze for health risks, and machine learning requires extensive training data that may not be available;
  • Researchers lack analytical standards for many PFAS, limiting the development of effective detection methods; and
  • The effectiveness and availability of disposal and destruction options for PFAS are uncertain because of a lack of data, monitoring, and guidance.

GAO developed the following three policy options that could help mitigate these challenges:

  • Promote research: Policymakers could support development of technologies and methods to more efficiently research PFAS health risks. This policy option could help address the challenge of limited information on the large number and diversity of PFAS, as well as a lack of standardized data sets for machine learning;
  • Expand method development: Policymakers could collaborate to improve access to standard reference samples of PFAS and increase the pace of method and reference sample development for PFAS detection. This policy option could help address the challenges of a lack of validated methods in media other than water, lack of analytical standards, and cost, which all affect researchers’ ability to develop new detection technologies; and
  • Support full-scale treatment: Policymakers could encourage the development and evaluation of full-scale technologies and methods to dispose of or destroy PFAS. This policy option could help address the challenges of cost and efficiency of disposal and destruction technologies and a lack of guidance from regulators.

GAO notes that these policy options involve possible actions by policymakers, which may include Congress, federal agencies, state and local governments, academia, and industry.

©2022 Bergeson & Campbell, P.C.

Federal Bill Would Broaden FTC’s Role in Cybersecurity and Data Breach Disclosures

Last week, the House Energy and Commerce Committee advanced H.R. 4551, the “Reporting Attacks from Nations Selected for Oversight and Monitoring Web Attacks and Ransomware from Enemies Act” (“RANSOMWARE Act”).  H.R. 4551 was introduced by Consumer Protection and Commerce Ranking Member Gus Bilirakis (R-FL).

If it becomes law, H.R. 4551 would amend Section 14 of the U.S. SAFE WEB Act of 2006 to require not later than one year after its enactment, and every two years thereafter, the Federal Trade Commission (“FTC”) to transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report (the “FTC Report”).  The FTC Report would be focused on cross-border complaints received that involve ransomware or other cyber-related attacks committed by (i) Russia, China, North Korea, or Iran; or (ii) individuals or companies that are located in or have ties (direct or indirect) to those countries (collectively, the “Specified Entities”).

Among other matters, the FTC Report would include:

  • The number and details of cross-border complaints received by the FTC (including which such complaints were acted upon and which such complaints were not acted upon) that involve ransomware or other cyber-related attacks that were committed by the Specified Entities;
  • A description of trends in the number of cross-border complaints received by the FTC that relate to incidents that were committed by the Specified Entities;
  • Identification and details of foreign agencies, including foreign law enforcement agencies, located in Russia, China, North Korea, or Iran with which the FTC has cooperated and the results of such cooperation, including any foreign agency enforcement action or lack thereof;
  • A description of FTC litigation, in relation to cross-border complaints, brought in foreign courts and the results of such litigation;
  • Any recommendations for legislation that may advance the security of the United States and United States companies against ransomware and other cyber-related attacks; and
  • Any recommendations for United States citizens and United States businesses to implement best practices on mitigating ransomware and other cyber-related attacks

Cybersecurity is an area of recent federal government focus, with other measures recently taken by President Bidenthe Securities and Exchange Commissionthe Food and Drug Administration, and other stakeholders.

Additionally, H.R. 4551 is also consistent with the FTC’s focus on data privacy and cybersecurity.  The FTC has increasingly taken enforcement action against entities that failed to timely notify consumers and other relevant parties after data breaches and warned that it would continue to apply heightened scrutiny to unfair data security practices.

In May 2022, in a blog post titled “Security Beyond Prevention: The Importance of Effective Breach Disclosures,” the FTC’s Division of Privacy and Identity Protection had cautioned that “[t]he FTC has long stressed the importance of good incident response and breach disclosure as part of a reasonable information security program, and that, “[i]n some instances, the FTC Act creates a de facto breach disclosure requirement because the failure to disclose will, for example, increase the likelihood that affected parties will suffer harm.”

As readers of CPW know, state breach notification laws and sector-specific federal breach notification laws may require disclosure of some breaches.  However, as of May 2022 it is now expressly the position of the FTC that “[r]egardless of whether a breach notification law applies, a breached entity that fails to disclose information to help parties mitigate reasonably foreseeable harm may violate Section 5 of the FTC Act.”  This is a significant development, as notwithstanding the absence of a uniform federal data breach statute, the FTC is anticipated to continue exercise its enforcement discretion under Section 5 concerning unfair and deceptive practices in the cybersecurity context.

© Copyright 2022 Squire Patton Boggs (US) LLP

Between the Legal Lines — Jessica Pfisterer [PODCAST]

With big dreams of helping people, Jessica Pfisterer began her career in public interest law, though she soon realized she wasn’t going to see the change she hoped for at the pace she wanted. Where Jessica truly found her passion was in People Operations and HR, thanks to her GC at the time. In this episode of Between the Legal Lines, Jessica shares with Andrea Bricca the story of how that pivotal role shaped the future of her career and what she has learned as a human resources leader who is also a trained lawyer.

Jessica Pfisterer is an HR leader and dancer, with a background in civil rights law and social justice work. She currently heads the People team at Lively, and dances with Duniya Dance and Drum Company. She is also on the board of TurnOut, a nonprofit that supports LGBTQ+ organizations, support for LGBTQ+ organizations, ensuring they are positioned to succeed and to continue serving the community. She is a Bay Area local and spends her free time traveling and exploring the great outdoors.

©2022 Major, Lindsey & Africa, an Allegis Group Company. All rights reserved.