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An Updated Federal Overtime Rule: When’s It Coming?

Twice a year (in the spring and the fall), each federal agency publishes a “Regulatory Agenda” that discloses the proposal and final rules it has recently issued, together with those that it plans to issue. Back in the fall of 2021, the U.S. Department of Labor’s Wage and Hour Division noted in the agenda that it was reviewing the regulations for exemption of executive, administrative, and professional (“EAP”) employees from the Fair Labor Standards Act’s minimum wage and overtime requirements codified in 29 C.F.R. Part 541.

One of the “primary goals” of the planned rulemaking is to update the minimum salary level requirement for employees who, by virtue of their duties, would qualify for an EAP exemption under section 13(a)(1) of the FLSA. You may recall that in May 2016, the Obama DOL issued a new overtime rule, to take effect on December 1 of that year, that would have—among other things—required the DOL to update (i.e., increase) the salary threshold for EAP exemptions every three years. In November 2019, before it could take effect, a federal judge in Texas enjoined the new overtime rule on a nationwide basis, declaring it “unlawful.”

In September 2019, the Trump DOL issued a new overtime rule, which took effect on January 1, 2020, raising the weekly minimum salary for EAP exemptions from $455 per week ($23,660 per year) to $684 per week ($35,568 per year). The increase was the first in 15 years, but nowhere near the boost the Obama administration tried to roll out in 2016 (to $913 per week, or $47,476 per year).

Cut to the Biden administration. The DOL noted in the fall 2021 Regulatory Agenda that “[r]egular updates [to the minimum salary for EAP exemption] promote greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates and provide appropriate wage protection.” The agency listed a timetable for issuance of a proposed overtime rule update (a Notice of Proposed Rulemaking, or NPRM) as April 4, 2022. Seven months later, we’ve seen no proposed rule.

If and when issued, the public will have the opportunity to comment on the proposed rule. (Back in 2016, the Obama DOL received more than 293,000 comments to its proposed overtime rule.) Stay tuned.

Article By Allan S Bloom of Proskauer Rose LLP

For more labor and employment legal news, click here to visit the National Law Review.

Five Data Quality Nightmares That Haunt Marketers and How Avoid Them

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

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

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

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

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

Data Quality Nightmare 1: Duplicate data

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

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

Data Quality Nightmare 2: Missing or incomplete data

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

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

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

Data Quality Nightmare 3: Incorrect or inconsistent data

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

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

Data Quality Nightmare 4: Too much data

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

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

Data Quality Nightmare 5: Lack of data quality resources

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

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

Data Quality Doesn’t Have to Be Scary

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

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

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

Article By Christina R. Fritsch JD of CLIENTSFirst Consulting

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

Fall 2022 Legal Industry News Highlights: Law Firm Hiring and Expansion, Notable Awards and Recognition, and the Latest in Diversity, Equity, and Inclusion

Happy November! As the holiday season approaches, we hope you and yours are remaining safe, happy, and healthy. Please read on below for the latest in legal industry updates, including notable law firm hirings and expansions, legal awards and recognition, and diversity, equity, and inclusion news.

Law Firm Hiring and Updates

Ropes & Gray has named 21 new partners as of November 1st, 2022. They have been selected for their roles as outstanding advisors to the firm’s clients across the globe, representing practices and specialties across sectors such as healthcare, life sciences, technology, labor and employment, and more.

“We are pleased to welcome this new group of partners, who are uniquely positioned to help our clients thrive in today’s uncertain economic environment,” said Chair Julie Jones. “These lawyers are problem solvers and big-picture thinkers, guided by a commercial approach and a deep understanding of the law.”

The firm’s newest partners are as follows: Samantha Barrett Badlam, Stephanie Bruce, Drew Clary, Dan Coyne, Sally Davis, William T. Davison, Gabrielle DiBernardi, Shona Ha, Laura Hirst, Yoni Levy, Nichole Lopez-Tackett, Jessica Marlin, Pascal Mayer, Anthony Mongone, Jessica Reece, Ben Rhode, Scott Rolnik, Alexander Simkin, Annie Sipe, PJ Sullivan, and Dan Zuckerman.

Baker Donelson has added Jill Walters to its Corporate Restructuring & Bankruptcy Group. Located in the firm’s Raleigh/Research Triangle office, Ms. Walters joins as a shareholder, providing more than fifteen years of experience counseling clients in restructuring, bankruptcy, insolvency, and complex Chapter 11 cases. Her work spans many industries and sectors, such as healthcare, manufacturing, real estate, and construction.

“I am thrilled to welcome Jill to the Firm. She is an excellent addition to our team and further deepens our bankruptcy and restructuring bench,” said Eric L. Pruitt, leader of Baker Donelson’s Corporate Restructuring & Bankruptcy Group. “Jill joins a dedicated team that has extensive litigation and transactional experience, and is advising clients in highly complex financial restructuring and bankruptcy cases.”

Morgen A. Mueller has joined Goldberg Segalla as an associate in the firm’s Chicago office. Now a part of the Workers’ Compensation practice group, Ms. Mueller focuses her practices on representing and defending insurers, administrators, and employers in all aspects of employment law, managing claims at all stages, including discovery, hearings, depositions, arbitrations, mediations, and trials.

Previously, Ms. Mueller served as legal counsel at Liberty Mutual Insurance, where she handled workers’ compensation defense cases and personal injury cases.

Davis|Kuelthau s.c. and SmithAmundsen LLC have announced that they will formally merge on November 1st, 2022, to form Amundsen Davis, LLC. The firm will offer services in a wide variety of areas, including labor and employment, intellectual property, litigation, mergers and acquisitions, real estate, and more. Comprised of twelve offices across the US, Amundsen Davis will serve clients both nationally and internationally.

“SmithAmundsen has grown steadily and strategically over the last 25 years to add service areas and expand our geographic reach to truly benefit our clients,” said Managing Partner Larry A. Schechtman. “The opportunity to combine with a firm that is so like-minded is one we are very excited about. What will set Amundsen Davis apart from its large law firm competition is our ability to maintain a boutique firm feeling in terms of client service while providing the resources and infrastructure of a large national firm.”

Legal Industry Awards and Recognition

Julia Perkins, partner at Varnum LLP, was named Class of 2022 Leaders in the Law by Michigan Lawyers Weekly. This honor goes to lawyers who have had outstanding accomplishments, exhibited leadership in improving the justice system in Michigan, and have made improvements to the legal community.

Ms. Perkins is the leader of Varnum’s Family Law Practice Group. Her contributions go beyond the legal field as she has served on the advisory committee for Kids Talk Children’s Advocacy Center since 2005. Using her legal experience, she volunteers as a mediator for Lakeshore Legal Aid. Lakeshore Legal Aid provides legal services to low-income families, seniors, and survivors of domestic violence and sexual assault.

LMG Life Sciences recognized five ArentFox Schiff lawyers’ outstanding work in the life sciences industry. The organization specifically recognizes key North American law firms and lawyers that work in the field of life sciences, taking into account case evidence, peer feedback, and client feedback for rankings.

The ArentFox Schiff attorneys that were selected, as well as their practice groups, are as follows:

Partner Imron Aly – Hatch-Waxman Patent Litigation
Partner Richard J Berman – General Patent Litigation, Patent Prosecution, Patent Strategy & Management, Hatch-Waxman Patent Litigation
Partner Kevin Nelson – Hatch-Waxman Patent Litigation
Partner Sailesh Patel – Hatch-Waxman Patent Litigation
Partner Stephanie Trunk – Healthcare Pricing & Reimbursement

Rhonda Tobin of Robinson & Cole LLP was one of five women recognized for Managing Partner of the Year in Corporate Counsel’s 2022 Women, Influence and Power in Law (WIPL) Awards. The WIPL Awards are meant to honor general counsel, in-house attorneys, and other law firm leaders who have demonstrated ongoing efforts to empower women in the legal profession, and who have overall made a substantial impact on the field.

Ms. Tobin is a partner at Robinson+Cole and has spent 32 years working on high-profile insurance coverage litigation. She has served as Managing Committee for 12 years and as a chair of the firm’s Litigation Section for 13 years before becoming the firm’s first woman managing partner. This year, she was also listed in the Hartford Business Journal’s 2022 Power Players Section, and she has also been recognized on the Insurance Law Trailblazers list from the National Law Journal.

Diversity, Equity, and Inclusion

Global law firm Kennedys and U.S. law firm Miller Canfield have achieved Mansfield Plus Certification from Diversity Lab, a DEI incubator. Diversity Lab adopted the Mansfield Rule, a 12-month program for law firms to boost underrepresented groups in firm leadership, in 2017. The 2021-2022 Mansfield 5.0 program required firms to consider at least 30% historically marginalized groups for at least 70% of senior promotions and enrichment roles, track and document job candidate demographics, submit three-month, six-month, and annual surveys and data collections, and build professional community with other firms.

Kennedys achieved U.S and U.K. certification as a first-time participant in the program. “Kennedys has always been committed to D&I but participating in Mansfield provided both a structure and a mechanism for accountability that allowed us to move beyond words to concrete action. It was a turning point for all of us and has allowed us to continue to identify concrete goals for the future,” says Meg Catalano, US Regional Managing Partner and Global Board Member.

Miller Canfield is a veteran of the Mansfield Program. The firm was the first in Michigan to adopt the rule, one of 27 firms to achieve certification in the program’s first year, and one of 39 to be certified five years in a row.

“When we first adopted the Mansfield Rule, we didn’t know how or if this small, but influential, group would have an impact on the profession and on law firms nationwide,” said Miller Canfield CEO Megan Norris. “We didn’t know whether law firms would be ready to adopt this level of transparency and accountability. We’re pleased to see that the movement is growing and maintaining momentum to create an opportunity for equity in law firms.”

The American Association for Access, Equity And Diversity presented Jackson Lewis P.C. with their 2022 President’s Award at a virtual award ceremony on October 13^th, 2022. The award is intended to recognize organizations that have demonstrated ongoing commitment to the AAAED and their mission of expanding access, equity, and diversity.

Jackson Lewis’ Affirmative Action, OFCCP and Government Contract Compliance practice group works with clients and partners to foster a strong DEI culture within a wide range of powerful organizations and industries. The firm has collaborated with AAAED on a number of initiatives, from providing faculty for the AAAED Professional Training Institute to participating on an AAAED amicus brief team to submit two briefs before the U.S. Supreme Court, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.

“We are thrilled to be recognized for the President’s Award,” says Matthew J. Camardella, co-leader of the firm’s Affirmative Action, OFCCP and Government Contract Compliance group. “I would like to thank Firm Chair Kevin G. Lauri and Chief Diversity, Equity & Inclusion Officer and Principal Kimya S.P. Johnson for continuing to invest in our partnership with AAAED and its mission to promote and protect policies that ensure equity and inclusion in all spheres of opportunity.”

Article By Chandler Ford, Crissonna Tennison, and Shelby Garrett of The National Law Review / The National Law Forum LLC

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

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

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

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

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

Shelby Garrett

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

Alistair Bone

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

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Alistair Bone

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

Shelby Garrett

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

Conclusion

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

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

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

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

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

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

Telehealth Transaction Structure Considerations

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

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

Target Telehealth Company Structure Compliance

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

CPOM Compliance Considerations and Diligence for Telehealth Companies

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

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

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

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

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

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

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

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

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

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

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

Data Cleaning Do’s and Don’ts

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

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

Identify and Prioritize Your Most Important Data

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

Eliminate Stagnant Records

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

Your Plan Is Your Life Preserver

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

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

Initial Cleaning Cycle

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

Rinse and Repeat

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

Bounces and Returns

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

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

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

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

Prevent Invalid Data

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

Never, Ever Stop

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

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

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

Now is a Good Time to Confirm Your S Corporation Status

On October 11, 2022, the IRS published Revenue Procedure 2022-19 providing taxpayers with liberalized procedures for resolving common S corporation issues. Previously, taxpayers would have needed costly IRS letter rulings for certainty on their S corporation status. The new procedures are simpler and less expensive.

The IRS has separately assured taxpayers that LLCs that are classified as S corporations may also qualify for this liberalized relief.

Inadvertent loss of S corporation status can have significant tax consequences and can make your business a less attractive acquisition target. For example, an S corporation that reverts to a C corporation may be subject to a double layer of tax going back several years. As a result, potential acquirers of any S corporation invariably request representations on the validity of the S corporation status.

The new Revenue Procedure describes common situations that the IRS has historically treated as not affecting the validity of S corporation status or qualified S corporation Qsub status, such as:

One class of stock requirement in the governing provisions (including the concept that commercial contractual agreements are not treated as binding agreements unless a “principal purpose” of the agreement is to circumvent the one class of stock requirement);
Disproportionate distributions inadvertently creating a second class of stock;
Certain inadvertent errors or omissions on Form 2553 or Form 8869;
Missing administrative acceptance letters for S corporation or Qsub elections;
Federal income tax return filings inconsistent with an S election; or
Governing provisions that allow for non-identical treatment of shareholders, such as differing liquidation rights (allowing for retroactive corrections).

For these common situations, there are now simpler and cheaper procedures to preserve S corporation status. For example, for certain small errors such as missing officer signatures, S corporations may follow the same simplified procedures as the late election relief procedures in Revenue Ruling 2013-30. Those procedures do not require a private letter ruling request, but only the original election form with a reasonable cause statement. As another example, if the issue is non-identical governing provisions and no disproportionate distributions were made, the S corporation may simply be retroactively treated as an S Corporation if it meets certain eligibility requirements and keeps a copy of a signed statement in its files.

Shareholders of uncertain S corporations should consider taking advantage of these new relaxed and cheaper procedures for curing S corporation mistakes. Each different type of error has a different cure with specific requirements.

Article By Christie R. Galinski and Samuel L. Parks of Miller Canfield

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

ADA Compliance for Law Firm Websites in 2022

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

But what if no explicit rules currently exist?

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

What is the ADA?

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

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

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

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

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

Compliance Tools & Plugins

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

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

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

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

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

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

Court Rulings Regarding Website ADA Compliance

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

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

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

Image by Seyfarth via adatitleiii.com

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

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

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

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

Gil v. Winn-Dixie Stores Inc.

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

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

Robles v. Domino’s Pizza

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

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

Andrews v. Blick Art Materials

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

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

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

Latest DOJ Guidelines

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

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

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

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

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

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

Final Thoughts

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

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

This article was authored by Jan Hill of Lawmatics.

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

EPA Launches Their New Office: What Does the Office of Environmental Justice and External Civil Rights Mean for Companies and ESG in the United States?

On September 24, 2022, the Environmental Protection Agency (EPA) announced the creation of a new national office dedicated to advancing environmental justice (EJ) and civil rights. Known as the Office of Environmental Justice and External Civil Rights, the creation of the new office delivers on a noteworthy campaign promise of President Joe Biden, who committed to elevating these issues during his presidency and ensuring justice and equality for overburdened, underserved communities.

“From day one, President Biden and EPA have been committed to delivering progress on environmental justice and civil rights and ensuring that underserved and overburdened communities are at the forefront of our work,” said EPA Administrator Michael S. Regan. “With the launch of a new national program office, we are embedding environmental justice and civil rights into the DNA of EPA and ensuring that people who’ve struggled to have their concerns addressed see action to solve the problems they’ve been facing for generations.”

“Since the beginning of the Biden Administration, its appointees have consistently stressed the idea of environmental justice,” said Jacob Hupart, Member at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. “Specifically, in this context, the invocation of environmental justice has focused on the principle that addressing the various environmental issues confronting society—including the challenge of climate change—must also take into consideration that underserved communities frequently are disproportionately impacted by environmental issues, and so these communities should receive particular attention. That the Biden Administration is establishing an EPA office dedicated specifically to this issue is congruent with their prior rhetoric and action (such as the appointment of Michael Regan as the EPA Administrator), and emphasizes this aspect of their environmental program.

What is the Intent and Significance of the EPA’s New Office?

With more than 200 EPA staff members across ten regions dedicated to the project, the office will put substantial resources into environmental justice efforts across the United States. This includes, but is not limited to, working with state, local, and Tribal partners to understand their EJ needs, disbursing grants and technical assistance, cooperating with other EPA offices to incorporate EJ initiatives in all areas, and ensuring funding recipients are complying with relevant civil rights laws.

This new focus by the EPA is extremely meaningful not only for environmental justice in the US, but for the direction of major regulatory and administrative bodies. “The EPA and the White House have enunciated policy, established guidance, and issued Executive Orders, but these tools do not have enforceable legal requirements,” explained Richard Glaze, environmental litigator and Partner at Barnes & Thornburg LLP. “Combining the existing Office of Environmental Justice with the External Civil Rights Compliance Office to form the Office of Environmental Justice and Civil Rights sends a signal that the EPA is willing to use enforcement tools with teeth to advance the administration’s Environmental Justice goals.”

Stacey Halliday, environmental lawyer and Principal at Beveridge & Diamond PC, noted how this is a substantial shift from the status quo. “In the past two years, we’ve seen momentum in fits and spurts from a variety of executive branch agencies following the January 27 issuance of EO 14008– including notable action from CEQ, DOE, DOJ, DOT and EPA,” she says. “However, this most recent action by EPA is only likely to accelerate this momentum and have impacts that will extend beyond the Biden Administration. We can expect to see more alignment between EPA program offices […] and a ‘from-the-top’ imperative to incorporate EJ in overall agency decision-making. This is a big change from past practice when EJ and civil rights enforcement were separately housed within other program offices and lacked this level of authority and agency-wide reach.”

“The Department of Justice is fully on board with the EPA in this effort,” added Mr. Glaze. “It recognizes that “Environmental justice and Title VI are both rooted in the same basic principle that no person should bear an unfair share of harm on account of their race, color or national origin” and warns that Title VI of the Civil Rights Act is a powerful for the coordination of Title VI and Environmental Justice.”

What Does the New EPA Office Mean for Companies?

The EPA’s new office comes at a time when companies are turning their focus to the upcoming recession, reminding them that climate and social justice must remain a top priority even as companies prepare for economic instability. This should send a message to corporations who have already been facing mounting pressure to incorporate climate justice considerations into their missions and operations. By creating a political culture of increased environmental and social scrutiny, the Biden administration is slowly changing “ESG” from a greenwashing buzzword to a corporate obligation.

“Companies seeking to gain the benefit of competitive federal funding,” said Ms. Halliday, “especially following the flush of resources coming from the IIJA and IRA – are more frequently asked to provide a detailed accounting of how they will assess and address EJ impacts, as well as how projects may contribute to the Justice 40 Initiative (directing 40% of benefits from federal climate investments to disadvantaged communities).”

“Although the ultimate impact of this new office is uncertain, as the actual initiatives and enforcement actions brought will have to be assessed and evaluated, at minimum, the creation of this office indicates that policy and enforcement actions centered around environmental justice are more likely to appear over the coming months and years,” added Mr. Hupart. “It should also be noted, however, that other environmental actions undertaken by the Biden Administration—such as the mandatory climate disclosures proposed by the SEC, which would be applicable to all public companies—are more likely to be an immediate focus for corporate America rather than potential EPA enforcement actions focused on specific instances implicating environmental justice concerns.”

What Does the New EPA Office Mean for ESG Considerations?

The environmental, social, and governance movement (ESG) has been undeniably energized by the EPA’s new office, particularly at a time when ESG movements are under scrutiny. If Biden’s plan to make environmental justice a more common business priority succeeds, centering sustainability issues will no longer be enough for firms to differentiate themselves to investors. Corporations targeting ethically-minded shareholders will need to develop more detailed, creative ESG approaches.

“Environmental justice combines elements of the “E” and the “S” of ESG and companies that have embraced ESG are well-advised to consider whether their operations implicate environmental justice and, if they do, give these issues the attention they deserve,” said Mr. Glaze. “Combined with the recent SEC climate disclosure rule, these ESG issues that companies have considered ‘optional’ will now have more force behind them [and companies] can no longer ignore them.”

“Even before the creation of this office, the renewed federal and state prioritization of EJ has had an impact on corporate behavior – driven broadly by federal guidance and tools, new state permitting requirements, targeted environmental enforcement, and investor demand,” said Ms. Halliday. “In the last year or so, we have seen an increase in shareholder proposals related to climate disclosures, racial equity audits and environmental justice audits, with investors seeking to understand how company activities impact disadvantaged communities and implications for long-term value for the company.”

Article By Chandler Ford, Crissonna Tennison, Shelby Garrett, and Casey Karthaus of The National Law Review / The National Law Forum LLC

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

Love and Basketball … and Romantic Workplace Relationships? Key Takeaways for Employers from the Boston Celtics’ Recent Suspension of its Head Coach

The Boston Celtics recently suspended its head coach Ime Udoka for the entire 2022-2023 season and although the team did not disclose whether the suspension will be paid or unpaid, it noted that he will be subject to a “significant financial penalty” as a result of multiple unspecified violations of the organization’s policies stemming from Udoka’s conduct towards a female member of the organization.

Originally believed to have been a consensual relationship, it was subsequently reported that the female staff member accused Udoka of making unwanted advances, including inappropriate comments towards the staff member. In response, the Celtics organization acted quickly and launched an internal investigation, which found “a volume of violations” of various policies. Please note, it is unknown as to whether the Celtics had a consensual relationship policy in place for employees.

The Celtics scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common. While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment.

Fortunately, employers have several options available to minimize risk. Employers can rely on various types of anti-fraternization policies (also known as workplace romance or consensual relationship policies) and/or love contracts. Separate, but related, employers should also implement robust anti-harassment policies and training for all employees (including management).

Relationship Policies

Some employers choose to implement a policy banning all romantic relationships between employees regardless of position or authority. These policies discourage personal and romantic workplace relationships and threaten discipline against employees who violate the policy. Other employers opt for a more flexible policy, which only prohibits romantic relationships where one individual has the ability to affect the terms and conditions of the other’s employment, including but not limited to, compensation, assignments, and promotions. This latter policy is more common as it is often less intrusive and aimed at preventing favoritism or claims of sexual harassment or retaliation.

Regardless of the policy used, most employers also include a disclosure requirement, which then allows the employer to determine the best course of action forward (e.g. eliminating the reporting relationship)..

Further still, some employers, in addition to their relationship policy, have used “love contracts” that couples sign to confirm their consensual relationship status, affirm their awareness of the company’s sexual-harassment and workplace conduct policies and other expectations related to conducting themselves in the workplace, indicate that they understand the consequences if they fall short of the company’s expectations.

Employer Actions After A Relationship Disclosure

Such policies and related documents allow employees to come forward as early as possible so employers can proactively address a situation. For example, it allows employers to remove any supervisory oversight or doubt that such a relationship is consensual, while also setting expectations with both employees about their conduct in the workplace during the relationship, and if and after the relationship ends. As part of this expectation setting discussion, even in the absence of a reporting relationship, employers should make sure to provide a copy of its anti-harassment policy to the dating employees and have them reaffirm they will comply with its terms and conditions. Employers should also confirm with each employee that they will immediately disclose when the relationship ends or is otherwise no longer consensual.

Anti-Harassment Policies & Training

Ultimately, and regardless of what policy an employer adopts, all employers should have a clear anti-harassment policy that, among other things, defines and clearly prohibits sexual harassment and requires all employees to report sexual harassment, including any unwanted advances or comments.

Such policies should include a complaint procedure that is readily accessible to employees and provides multiple avenues for raising complaints. It should confirm that the company will promptly and thoroughly investigate all complaints and will not retaliate against any individual who reports or participates in an investigation of harassment (including sexual harassment).

It is crucial that employers think about responding in a fashion similar to the Celtics’ in promptly investigating and addressing alleged misconduct. For example, the Celtics quickly engaged independent outside counsel to conduct a thorough investigation, which positioned the Celtics well to determine its appropriate next steps. Critically, the Celtics did not appear to allow the employee’s status within the organization to interfere or impact its decision to enforce its policies and impose serious penalties. By following the Celtics’ lead, employers can, among other things, create an environment where employees feel safe to complain and further eliminate the possibility of misconduct in the workplace, while also enhancing any legal defense in the event a lawsuit follows.

Having written policies is key, but it is equally important that employees, particularly supervisors or managers, are thoroughly trained on how to recognize potentially problematic situations, including when employees are dating, and how to respond to and further report potential policy violations. Some jurisdictions even make training a statutory requirement.

Key Takeaways for Employers

The reality is that romantic relationships in the workplace occur and those employers that are proactive in anticipating such relationships and responding to them when they occur will be best positioned to limit potential liability. Employers should consider taking the following actions:

Adopting a consensual relationship policy that is best suited for the company;
Ensure the use of a robust anti-harassment policy;
Periodically conduct anti-harassment training; and
Be prepared to monitor and respond upon learning of a relationship between your employees.

Article By Delaney M. Busch of Mintz

For more labor and employment legal news, click here to visit the National Law Review.

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What is the ADA?

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Robles v. Domino’s Pizza

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What is the Intent and Significance of the EPA’s New Office?

What Does the New EPA Office Mean for Companies?

What Does the New EPA Office Mean for ESG Considerations?

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Relationship Policies

Employer Actions After A Relationship Disclosure

Anti-Harassment Policies & Training

Key Takeaways for Employers

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