The COVID-19 Change Order

During the pandemic it has become common for contractors to submit change orders to owners seeking reimbursement for COVID-19 related expenses and costs.  This is especially true for large construction projects.  These “COVID-19 Change Orders” seek reimbursement for everything from masks, dividers, hand sanitizer and other items required to follow and implement CDC guidelines (or to comply with state and local orders) for maintaining a safe work environment.  COVID-19 Change Orders also seek reimbursement for extended general conditions caused by having less workers on site because of social distancing requirements, lost time caused by shorter working hours, and lost time associated with CDC mandated hygiene breaks and temperature checks. On larger projects, COVID-19 Change Orders can escalate into millions of dollars and are often submitted without warning towards the end of a project when final completion and the payment of retainage are approaching.

For owners and contractors that are trying to complete their projects, many of which have been delayed or suffered from cost overruns, these unexpected COVID-19 Change Orders can be very problematic and hard to navigate.  Owners will argue that increased costs associated with the pandemic have affected all businesses, not just contractors.  Contractors will respond that these are real costs that they must pay to operate.  Often, the justification for reimbursement is not black and white because it is hard to find a specific contractual provision that addresses such an unprecedented situation, which causes uncertainty and strained relations between owners and contractors at the end of a project.

The justifications asserted for COVID-19 Change Orders vary from project to project and are sometimes asserted as an event of force majeure or more commonly as a general change in site conditions.  While many force majeure clauses expressly apply to acts of God, pandemics and government shutdowns, that is not the end of analyzing whether the clause applies.  While the application of a force majeure clause to these situations is highly dependent on the wording of such a clause, most require that performance be completely prevented and do not recognize commercial impracticability as a justification for delay.  There were a small number of projects that were shut down at the beginning of the pandemic by state and local orders in stricter jurisdictions, but for the most part complete shutdowns were uncommon because of various exceptions to such orders for businesses broadly defined as “essential.”  As the pandemic extended through late 2020, and into 2021, shutdowns became non-existent.  Finally, many force majeure clauses don’t allow for the reimbursement of costs for implementing required protective measures, they simply allow for an extension of the contract time.

As a result, many contractors have turned to other contractual provisions, such as language related to changes in site conditions or clauses related to change orders in general.  But prior to the pandemic these provisions were not drafted with this circumstance (a virus) in mind.  Instead, they usually apply to changes in “physical” conditions at the site that are specifically described, like subsurface conditions, otherwise concealed physical conditions or hazardous materials found at the site.   Making the argument that a virus is an unknown “physical” condition at the site can be a challenge since the virus is airborne, not necessarily part of the site itself and not unique to the site.  In addition, because many of these clauses require the approval of the owner or are only triggered by specific conditions, they may not support a unilateral change order.

Because of the ambiguity surrounding COVID-19 Change Orders, many owners will initially be reluctant to cover such reimbursements for their contractors.  Aside from the specific language in their construction contracts, Owners should consider other factors when deciding whether to reject, accept or partially accept COVID-19 Change Orders, including the risk of strained relations with its contractor, distractions at the project and the costs of a potential dispute with its contractor.  If there are remaining construction contingency funds available, and the project has otherwise run smoothly, the owner should consider offering all or part of it at the end of the project to avoid a dispute.  Likewise, contractors should be thoughtful and thorough when deciding whether to seek reimbursement for project costs associated with COVID-19, and make sure the costs at issue were necessary and can be verified.  Finally, if the contractor received government loans or payments because of the pandemic, including funds from the Paycheck Protection Program, it should strongly consider not seeking reimbursement from the owner.

© 2022 Bracewell LLP

July 2022 Legal Industry News and Highlights: Law Firm Hiring, Industry Recognition, and the Latest in Diversity and Inclusion

Thank you for reading the National Law Review’s latest in legal industry news – read on below for updates on law firm hiring and expansion, industry awards and recognition, and diversity and inclusion initiatives! We hope you are staying safe, happy, and healthy.

Law Firm Hiring and Expansion

Womble Bond Dickinson has announced its upcoming merger with Cooper, White & Cooper LLP, a multi-practice law firm based in San Francisco. Effective on September 1, 2002, the expansion will strengthen Womble’s presence in the Bay Area, with more than two dozen legal professionals operating out of the San Francisco area.

“California is home to some of the world’s key business and technology hubs, with San Francisco chief among them,” said Betty Temple, CEO and Chair of Womble Bond Dickinson (US). “The state – and indeed the entire West Coast – is strategically important to Womble, and we are thrilled to anchor our presence in the market through a firm that is well-known for its robust litigation and transactional skills. We look forward to continuing the growth of our services and footprint on the West Coast and in other key markets to provide greater value to our clients.”

“We have been impressed by Womble’s transatlantic platform and stellar reputation for advising companies on complex, high-stakes issues,” said Jed Solomon, a partner at Cooper, White & Cooper. “Combined with our cultural compatibility and shared commitment to exceptional client service, this was an ideal opportunity to expand our services to our collective client base.”

James W. Cox, MS, an experienced biologist and risk assessor, has joined Bergeson & Campbell, P.C. and The Acta Group as Senior Scientist. Mr. Cox, who has formerly served as an Acting Lead Biologist in Risk Assessment in the EPA’s Office of Pollution Prevention and Toxics and as a Biologist at the Department of Defense, has reviewed hundreds of biological agents, nanomaterials, industrial chemicals, and more to determine risks to human health and the environment. At the firm, he will continue to provide regulatory process guidance for products subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Toxic Substances Control Act (TSCA), and other notable regulatory programs.

“James’s contributions to our practice areas come at a crucial time, given the considerable uptick in the need for risk assessment skills,” said Lynn L. Bergeson, Managing Partner of Bergeson & Campbell and President of Acta. “We are so pleased James has joined our team and look forward to introducing him to our clients.”

Varnum LLP has expanded its office in Birmingham, Michigan. With growing client demand and ongoing hiring, the firm has nearly doubled the size of its operations in the area in the last three years, featuring noteworthy practices in the fields of banking, finance, corporate law, M&A, intellectual property, and more.

“Since opening our doors in Birmingham three years ago, we have been thrilled with the reception from clients, legal talent and the community alike,” said Firm Chair Ron DeWaard. “Our newly expanded office will allow us to continue our growth trajectory with first-class space for clients and talent.”

Industry Awards and Recognition

Nick Welle, Partner at Foley and Lardner LLP, has received a 2022 Philanthropic 5 Award from the United Way of Greater Milwaukee & Waukesha County. Created by the organization’s Emerging Leaders Council, the award recognizes five notable leaders in the community, particularly ones that have made significant contributions of mentoring, volunteer work, or leadership to nonprofit organizations in the area.

Mr. Welle is the Chair of the firm’s Health Benefits Practice Group, as well as the co-chair of the Pro Bono Committee based in Milwaukee. Both at the firm and through community volunteer work, Mr. Welle has managed projects such as camp clean-ups, backpack drives, and clothing fundraisers in the area, dedicating hundreds of hours to the Boys & Girls Club of Greater Milwaukee. Additionally, he assists in running the Milwaukee Street Law Legal Diversity Pipeline Program, which aids high school students from diverse backgrounds in researching potential legal professions.

At the 40 at 50 Judicial Pro Bono Recognition Breakfast, Barnes & Thornburg LLP was honored by the Judicial Conference of the District of Columbia Circuit’s Standing Committee on Pro Bono Legal Services for its ongoing commitment to pro bono legal services. More than 40 percent of the firm’s Washington D.C.-based attorneys performed more than 50 hours pro bono work in the last year, and as such, the firm was made eligible for the recognition.

In addition, the organization recognized Barnes & Thornburg for being one of only six firms in which at least 40 percent of its partners in the Washington D.C. office reached the 50-hour marker.

Tycko & Zavareei LLP’s Sabita J. Soneji has been nominated to the Public Justice Board of Directors for a term that will last three years. Working against unchecked corporate power, ongoing pollution, unjust employers, punitive credit card companies, and more, Public Justice engages in impactful legislation to take on notable systemic threats to justice in the United States. Ms. Soneji, a Partner at Tycko & Zavareei, has nearly 20 years of experience in litigation and legal policy, fighting consumer fraud at both the federal and state level.

“I’m genuinely honored to be nominated to serve on the Board of an organization that tirelessly works to promote justice, diversity, and fairness,” said Ms. Soneji. “I’m even more excited to get to do that work with such an incredible group of devoted attorneys.”

Diversity, Equity, and Inclusion

Brittainy Joyner, attorney at Shumaker, Loop & Kendrick, LLP, has been accepted into the 2022 cohort for the Nonprofit Leadership Center’s Advancing Racial Equity on Nonprofit Boards (ARENB) Fellowship. Broken into six separate sessions, the ARENB program helps to advance the racial and ethnic diversity of nonprofit boards throughout the Tampa Bay area, ensuring these organizations are prepared and committed to fostering more inclusive cultures and environments. Ms. Joyner, a member of Shumaker’s Litigation and Disputes Service Line, focuses her practice on litigation and disputes for homeowners associations, as well as arbitration, mediation, and negotiation.

“We are proud that Brittainy got accepted into Advancing Racial Equity on Nonprofit Board Fellowship,” said Maria Del Carmen Ramos, Shumaker Partner and Diversity and Inclusion Committee Co-Chair. “At Shumaker, we understand the importance of promoting racial equity. We are happy to see our attorneys, like Brittainy, being committed to doing something about it. We know Brittainy will be a valued fellow.”

In celebration of 2022’s Pride Month, New York Times bestselling author and Pulitzer Prize finalist Dr. Eric Cervini joined Katten Muchin Rosenman LLP attorneys for a virtual conversation about the history of LGBTQ+ politics in the United States, as well as the continued battle for LGBTQ+ rights. The event was moderated by firm Partner J Matthew W. Haws, who is a member of the Lesbian and Gay Bar Association of Chicago and the National LGBTQ+ Bar Association.

With more than 300 anti-LGBTQ+ bills proposed this year across the country, Mr. Cervini acknowledged the community’s ongoing struggle. However, he noted “As I remind people, we have been through much worse. We have survived the inquisition, the Lavender Scare, the AIDS crisis, and Anita Bryant […] We can certainly get through this. But we need to be studying up, how we were successful and how we failed in the past and then also be recruiting new allies, just as Frank Kameny recruited the ACLU, we need to be recruiting new allies today.”

Darrell S. Gay, partner at ArentFox Schiff LLP, has been named one of Crain New York Businesses’ 2022 Notable Diverse Leaders in Law. Selected for his contributions to local counseling, pro bono work, and community service and philanthropy, as well as his commitment to diversity, equity, and inclusion initiatives, Mr. Gay is an experienced attorney, focusing his practice on the field of labor and employment. He assists in guiding clients through employee relations issues, as well as internal investigations and traditional labor matters.

In addition, Mr. Gay is a longtime leader in the private bar and the business community. He served for three years as the Commissioner for the New York State Civil Service Commission, and additionally played a central role in founding and leading the firm’s Center for Racial Equality.

Copyright ©2022 National Law Forum, LLC

Top Legal Industry News for Summer 2022: Law Firm Expansions, Industry Awards and Recognition, and the Latest in Diversity and Justice Efforts

Happy July from the whole team at the National Law Review! We hope you are enjoying the warm weather. Please read on for our coverage of the latest in legal industry news, including firm hiring and expansion, industry awards and recognition, and notable diversity and justice initiatives.

Law Firm Hiring and Expansion

Frost Brown Todd has added Member Sohan Dasgupta, Ph.D to its Business Litigation Practice Group. An experienced litigator, Mr. Dasgupta has represented clients before U.S. courts of appeals, trial courts, and the U.S. Supreme Court. His practice focuses on regulatory and compliance issues, investigations, and international law; previously, he served as Deputy General Counsel to the U.S. Department of Homeland Security and as Special Counsel to the U.S. Department of Education. In his new role, Mr. Dasgupta will continue advising on matters related to compliance, investigations, and regulation.

Hill Ward Henderson has added four new attorneys to its Tampa, Florida office:

  • David Keel, who joins the firm as Senior Counsel. Mr. Keel is an experienced construction attorney. He represents clients across the industry, including owners, developers, contractors, subcontractors and design professionals, in matters such as litigation, transactions, and the preparation and design of contracts.
  • Steven Cline, who joins as an Associate. Mr. Cline is a complex commercial litigator with a background in insurance claims. He represents clients in both state and federal court, with a particular emphasis on various types of business disputes.
  • Michael J. Farr, who joins as an Associate. His practice is focused on mergers and acquisitions, venture capital, joint ventures and partnerships, and general corporate advice.
  • Zoila Lahera, who joins as an Associate. Her practice is centered on commercial law matters and litigation, including land use, real estate, zoning, and estate disputes. In the past, she has defended lawsuits involving commercial landlord/tenant disputes, breach of contract, non-compete litigation, and more.

Drew Hirshfeld, an experienced intellectual property lawyer, joined Schwegman Lundberg & Woessner as Principal. Located in the firm’s Minneapolis office, he will draw upon nearly 30 years of federal agency experience, working in all areas of the firm’s patent practice, from prosecution and litigation to navigating USPTO policy. He will also act as an expert witness on USPTO-related issues.

Mr. Hirshfeld began his career as a USPTO Patent Examiner in 1994. In 2015, he was named Commissioner for Patents, and then served as Acting Deputy Under Secretary of Commerce for Intellectual Property and Acting Deputy Director. In 2021, he led in the creation and implementation of a new director review process for Patent Trial and Appeal Board final written decisions, a response to United States v. ArthrexManaging IP has listed him as one of the Top 50 Most Influential People in IP.

Law firm Davis|Kuelthau, s.c. continues its Trusts, Estates & Succession Team expansion with the addition of estate law attorney Andrew (Drew) MacDonald. Mr. MacDonald, a Founding Board Member and Past President for the charity Old Glory Honor Flight, will be located in the firm’s Appleton, WI office. He focuses his practice on issues related to estate administration, business succession, firearm trusts, and special needs planning. He also has a great deal of experience related to the planning of long-term care.

Legal Industry Awards and Recognition

David I. Brody, partner at Sherin and Lodgen, has been elected President of the Massachusetts Employment Lawyers Association (MELA) for 2022-2023. A member of the firm’s Employment DepartmentMr. Brody is an experienced litigator and advisor, representing clients before state court, federal court, and the Civil Service Commission, as well as advising executives on restrictive covenants, non-competes, change of control agreements, and more.

MELA is the Massachusetts Chapter of the National Employment Lawyers Association, the largest professional organization in the U.S. that is composed entirely of employment-focused attorneys. The organization seeks to improve advocacy, increase awareness, monitor key legislation, and support members who are devoting their practice to the representation of employees.

Shumaker’s Chief Marketing and Business Development Officer Erica Shea has been selected by Leadership Florida to join Cornerstone Class 40, a team of executives and professionals that collaborate toward the overall improvement of the state. Participants attend educational sessions on both leadership and relevant issues in Florida, and will remain connected through ongoing meetings once the program is complete. At the present moment, Leadership Florida has fostered a network of over 3,300 alumni, ranging from CEOs and elected officials to agency heads, hospital administrators, legal professionals, and more.

“It is exciting that Erica will have the opportunity to use her leadership skills to benefit our great state,” said Ron Christaldi, Shumaker Tampa Managing Partner and President/CEO of Shumaker Advisors Florida. “Erica sets a clear vision, and genuinely cares about people. Her passion and energy inspire us all.”

Don Eglinton, business and commercial litigation attorney at Ward and Smith, P.A., has been named to the Order of Juris, an honorary trial order of the Litigation Counsel of America (LCA). Comprised of Fellows who have tried to verdict at least fifty jury or bench trials, the LCA selects less than half of one percent of all American lawyers for membership. Fellowship is highly selective, allowed only through invitation and based on exhibited excellence and accomplishment in litigation at trial and appellate levels, as well as notable ethical reputation.

Mr. Eglinton is a Senior Fellow of the Litigation Counsel of America. His practice at Ward and Smith is primarily focused on commercial litigation, with particular emphasis on patent and trademark disputes, copyright infringement, and trade secrets. He has represented clients in infringement actions based in North Carolina, Texas, and California, as well as complex trademark and copyright actions in the Eastern District of North Carolina, and before the United States Trademark Trial and Appeal Board.

Diversity, Equality, and Justice in the Legal Field

After a grant from Venable LLP, the Mid-Atlantic Innocence Project (MAIP) has established a new support fund aimed at helping exonerees from Maryland, Virginia, and the District of Columbia after their release from prison. The Venable-Burner Exoneree Support Fund, named in part for client Troy Burner, will seek to provide job placement assistance, counseling, social services, and advocacy training for its recipients. Mr. Burner was represented by Venable attorneys Seth Rosenthal, Lauren Stocks-Smith, and MAIP co-counsel, who secured his full exoneration in March 2020 for a crime he did not commit.

“From its inception, MAIP has represented individuals with bona fide claims of actual innocence and advocated for changes in law and policy to prevent wrongful convictions,” said Mr. Rosenthal. “But MAIP has not had the capacity to provide comprehensive, direct support to its clients following their exonerations. Now it will. This new program is a game changer for the organization.”

Shawn Armbrust, MAIP Executive Director, said, “The adjustment to life outside prison is challenging for all returning citizens, but exonerees have suffered additional trauma and have needs that traditional reentry services – which often are not available to them – cannot address. Thanks to Venable, our clients will have the support they need to rebuild their lives and, if they desire, use their experiences to advocate for reform.”

La’Tika Howard, attorney at Womble Bond Dickinson, has been named to the National Black Lawyers Top 40 Under 40 list. An invitation-only development and networking association composed of noteworthy African American attorneys in the U.S, National Black Lawyers has a stringent list of criteria for recognition, including outstanding reputation among peers and the judiciary, notable achievements or settlements, nomination from leading lawyers in the field, and rankings by other leading evaluation organizations. Selection to the list is a high honor, limited to only the top Black lawyers under the age of 40.

Ms. Howard, who practices in the firm’s Baltimore office, focuses her practice on corporate law. She represents clients on matters such as private equity, mergers and acquisitions, due diligence, venture capital financing, and corporate governance.

This June, after efforts from the firm’s DEI committee as well as shareholder David GoldmanCMBG3 Law presented a $5,000 scholarship to a graduating high school student pursuing higher education. The scholarship, intended for an individual who is seeking a law degree but does not have the economic means to do so, was granted to a student at Central Falls High School in Rhode Island. Selected after an essay contest which detailed her hopes to pursue a law degree, she will be attending Brown University in the fall of 2022 as a freshman.

CMBG3’s newest scholarship initiative was born from two separate efforts: first, in 2021, Mr. Goldman was selected to participate in the Leadership Rhode Island program, in which he designed a social contract promising to give back to the local community. Simultaneously, the firm’s DEI committee was seeking additional opportunities to support high school students from disadvantaged backgrounds. Working together, Mr. Goldman and the committee developed the scholarship, and on June 6, 2022, Mr. Goldman was able to present the award in person.

Copyright ©2022 National Law Forum, LLC

3 Benefits of Cloud-Based Law Firms

Any law firm that’s evaluating practice management software has seen “cloud-based” options. Cloud technology has been around for a while, but some law firms are hesitant to switch to the cloud due to security concerns, lack of control, or downtime. The cloud has numerous benefits for a law firm, however. Instead of relying on filing cabinets and in-office servers, law firms can embrace the cloud and maximize their time and profits.

Why Should My Firm Use Cloud-Based Software?

Traditionally, law firms have relied on in-office software that is installed on a local computer or server within the office space. These servers are only accessible from computers in the same space but limit any remote access or capability. This setup quickly became an issue for law firms looking to sustain business continuity during the pandemic.

A cloud-based solution isn’t installed locally on the office server but is fully hosted on the internet. It uses a remote server maintained by the software provider, and access occurs through the internet. More recently, cloud-based legal practice management software has become the gold standard for law firms to manage and operate their business from anywhere. LPMs have slowly started to replace traditional servers and become the backbone for law firms to handle client management, calendaring, tasks, billing, and document storage.

Even post-pandemic, law firms are still learning to embrace legal technology and leverage the advantages of shifting their practice to the cloud. When done correctly and with the right resources, cloud-based law firms can improve aspects of their business from accessibility, security, client support, and even hiring and retention.

If you’re still on the fence about moving your firm to the cloud, here are 5 benefits that may change your mind:

Person checking phone for security code

1. Improved Security

Legal technology has come a long way in recent years with a strong emphasis on compliance and security. Law firms may be concerned about security, but some are realizing the cloud is more secure and cost-efficient than an on-premise solution. This is mostly because on-premise solutions typically require specialized support staff to perform lucrative updates to the system. These updates can cause severe downtime and even cost money calling in support.

With a cloud-based legal practice management software like PracticePanther, the all-in-one platform automatically updates and comes with the security and support your firm needs. The platform comes equipped with ABA and IOLTA compliant features and 256-bit military-grade encryption to ensure confidential information is safeguarded. It also offers two-factor authentication and customized security settings, which allow law firms to limit access to certain aspects of the software for some staff members.

Person communicating via video call

2. Supports Remote and Hybrid Work

Though many law firms are still working out the kinks — remote and hybrid working environments are a mainstay in the legal industry. Many lawyers are enjoying the productivity benefits and work-life balance of remote or hybrid schedules, allowing them to put in the hours they need for casework while also balancing their responsibilities at home.

On-premise legal software limits lawyers with remote work in many ways. Cloud-based legal software enables law firms to work securely within a centralized platform from anywhere. This allows staff to continue their responsibilities without risking accessibility or tasks falling through the cracks when staff are in different locations. For example, PracticePanther can create workflows with triggered tasks for staff to complete a new client onboarding, send documents for electronic signature, and even process payments. This process can be done from anywhere and lives in one system where the appropriate staff can easily access the case or client matter.

3. Streamlined Billing and Online Payments

Clients’ expectations have shifted and they want more convenient processes, especially with legal billing and how they conduct business with law firms. These clients are already using online services for virtually everything, from grocery shopping to accessing medical bills, and they want the same digital experience from their lawyers.

Cloud-based software makes this simple, especially when billing and online payments are built natively. This means firms can track time, create invoices, and send them for payment with easy-to-use payment links embedded. Platforms like PracticePanther also include exclusive reporting functions so firms can gain better insight into where and how their cash flow is generated to make more informed business decisions.

Outlook on Cloud-Based Firms

Cloud-based software offers law firms a unique opportunity to manage their practice and staff while growing their business from virtually anywhere. This structure has proved sustainable for many law firms and will continue to be the standard in the legal industry for firms that want to remain competitive and most importantly, profitable.

© Copyright 2022 PracticePanther

June 2022 Legal Industry News and Highlights: Law Firm Hiring, Industry Recognition, and New Diversity and Inclusion Efforts

Happy Summertime from the National Law Review! We hope you are staying safe, healthy, and cool. Read on below for the latest news in the legal industry, including law firm hirings and expansion, legal industry awards and recognition, and diversity, equity, and justice efforts in the field.

Law Firm Hiring and Expansion

Michael Best & Friedrich LLP has added Brett R. Valentyn as Senior Counsel to the firm’s Corporate and Transactional Practice Group. Mr. Valentyn, a well-practiced mergers, acquisitions, and corporate attorney, has a wide array of experience in areas such as private equity, corporate governance, and transactional and contractual matters. He has advised clients across industries in buy-side and sell-side transactions for both small-cap and large-cap companies.

“Brett’s successful history in advising clients on transactional matters has him well-positioned to flourish,” said Jason Rogers, Chair of the Corporate & Transactional Practice Group. “Brett’s impressive background in transactional law will only strengthen our already deep bench of talented and business-minded private equity and M&A attorneys. I’m confident Brett will make a wonderful addition to our Corporate & Transactional Practice Group.”

Corporate attorney Eric D. Statman has joined the Toxic Torts practice group at Goldberg Segalla. A 20-year veteran of complex commercial litigation, Mr. Statman is poised to continue his environmental, product liability, and mass tort practice out of the firm’s Manhattan office.

Previously, Mr. Statman has aided clients across a variety of industries, resolving major disputes with minimum impact to corporations through mediation or litigation, as well as negotiating a large number of group settlements. Notably, he has represented asbestos defendants as local and national counsel, helping to develop strategies to minimize exposure.

Michael J. Ligorano has rejoined Norris McLaughlin’s Real Estate, Finance, and Land Use Group and Immigration Practice Group after nine years as the Diocese of Metuchen’s General Counsel. Ligorano is an established New Jersey land use and immigration practitioner with experience evaluating undeveloped land, as well as acquiring, developing, and financing municipal projects around the state. In addition to city planning, Ligorano has served as a legal resource for multinational businesses who wish to enter the United States, assisting in the navigation of the US immigration process. He is the former supervising attorney for the Diocese of Metuchen Catholic Charities Immigration Program, and a member of the American Immigration Lawyers Association.

“Michael has a deep understanding of our firm and of the local landscape. He is not only one of the state’s foremost land use and commercial real estate attorneys, but as an experienced immigration counsel will help make ours arguably the best immigration practice in the region,” said David C. Roberts, Chair of Norris McLaughlin. “We are pleased to have Michael at the firm and look forward to his leadership and cross-practice collaboration.”

Five partners and eight associates have joined the Chicago office of the MG+M The Law Firm. The Asbestos Litigation Practice welcomes Partners Timothy KrippnerMichael CantieriChristopher TriskaWilliam Irwin, and Daniel Powell, as well as Associates Alex BlairElizabeth GrandeAerial HendersonDragana KovacevicCindy Medina-CervantesEmily Sample, and Andrea Walsh. The new members bring with them decades of combined high-stakes complex commercial and liability defense experience.

“MG+M enthusiastically welcomes this exceptional team of professionals to our firm,” commented MG+M Chairperson and Partner John B. Manning. “We have collaborated with this group of lawyers for years and look forward to their enhancement of our brand as a go-to firm for high-stakes litigation matters in Illinois, the Midwest and nationally.”

Legal Industry Awards and Recognition

The Environmental Practice Group at Greenberg Traurig, LLP has been recognized in the Legal 500 United States 2022 Guide. 31 attorneys across 12 offices in the US were included in the list, highlighting the firm’s expertise in areas such as environmental regulation, environmental litigation, energy regulation, mass torts, and Native American law.

Of particular note, shareholder David B. Weinstein was recognized in the U.S. Guide as a Leading Lawyer in the category of Dispute Resolution > Product Liability, Mass Tort, and Class Action – Defense: Toxic Tort. Likewise, shareholder Troy A. Eid was recognized as a Leading Lawyer for Industry Focus > Native American Law.

Canadian law firm Blake, Cassels & Graydon LLP was recognized six times at the 2022 Benchmark Canada Awards, including three separate “Firm of the Year” Awards. Specifically, the firm was named the Competition Litigation Firm of the Year for the first time, the White Collar Crime/Enforcement Firm of the Year for the third consecutive year, and the Arbitration Firm of the Year for the fifth consecutive year.

In addition, Blakes was granted the Impact Case of the Year award for work on Sherman Estate v. Donovan, led by partner Iris Fischer. Partners Michael Barrack and Melanie Baird also received the Hall of Fame Award and the IP Litigator of the Year award, respectively.

Thomson Reuters has named six Stubbs Alderton & Markiles attorneys as “Rising Stars” on the Southern California Super Lawyers list. The members of the firm that have been selected are listed here:

Attorneys selected for the Super Lawyers list demonstrate a high degree of personal and professional achievement, as well as a significant level of peer recognition. The list selects only 2.5 percent of under-40 lawyers in the Southern California area for the “Rising Stars” designation, making decisions based on peer nomination, independent research, and peer evaluation.

Two Womble Bond Dickinson (US) attorneys have been ranked in the 2022 edition of Chambers USA. Cristin Cowles, Ph.D., an experienced patent prosecution and patent lifecycle management attorney, has been ranked in Intellectual PropertyJed Nosal, a practiced state regulatory oversight, enforcement, and compliance attorney, has been ranked in Energy & Natural Resources.

Additionally, the firm’s Massachusetts-based Energy & Natural Resources practice has been recognized by Chambers USA as an industry leader. In total, 60 Womble Bond Dickinson attorneys and 22 state-level practice areas have been recognized in the 2022 edition of Chambers USA.

Diversity, Equity, and Justice Efforts

Chris Slaughter, CEO of Steptoe & Johnson PLLC, affirmed the firm’s commitment to diversity and inclusion by taking the Leaders at the Front Initiative Pledge with the Leadership Council on Legal Diversity. Nationally recognized for its strengths in energy law, business, labor and employment, and litigation, Steptoe & Johnson has a longstanding commitment to diversity, equity, and inclusion, with efforts such as the D Cubed Program, the Standing Diversity & Inclusion Committee, and ongoing diversity recruitment and retention efforts.

The Leaders at the Front Initiative is a movement intended to forefront the conversation about diversity and inclusion for major organizations and law firms. It requires an organization to act on their pledge by creating an action plan that turns their words into measurable actions, with the end goal of helping a new diverse generation of attorneys obtain positions of leadership and in return create a national legal industry that is diverse and inclusive.

Three Bradley Arant Boult Cummings LLP attorneys have been recognized by the Virginia Access to Justice Commission for their outstanding pro bono services. Lee-Ann C. Brown, an associate at the firm, has been named the 2020-2021 Pro Bono Service Champion, an honor reserved for top Virginia attorneys reporting the highest number of pro bono hours. Douglas L. Patin and Henry C. Su have likewise been named 2020-2021 Pro Bono Service Honor Roll members for contributing over 40 hours of pro bono service.

The Virginia Access to Justice Commission was established in 2013 by the state’s Supreme Court to promote equal access to justice, with a particular emphasis on the civil needs of Virginia residents. The bar’s participation in pro bono service has since become a priority for the Commission, connecting judges, lawyers, and legal aid and social services to assist in making the courts more accessible for all.

“These attorneys have made tremendous strides in providing pro bono service and working to promote access to justice in the Virginia community, and we are proud of their significant contributions,” said Bradley Pro Bono Counsel Tiffany M. Graves.

Hunton Andrews Kurth LLP has announced the establishment of the HuntonAK Pathfinders Scholarship Program, a 10-week, paid Summer Clerkship for outstanding first-generation 2L law students. Stemming from the winning submission at the firm’s annual “Hackathon,” a brain-storming competition for enhancing diversity and inclusion in the legal industry, the scholarship seeks to attract students to the private practice of law while providing valuable work and mentorship experiences at the firm.

Hunton Andrews Kurth is committed to making our profession more accessible to talented law students who have already demonstrated great determination by climbing the first rung of the educational mobility ladder,” said managing partner Wally Martinez. “This scholarship, strictly for first-generation students, is one of the first of its kind and we are honored to help lead the way with this effort.”

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ERIC Files Amicus Brief Rebutting DOL Attempt to Create New Regulations in Lawsuit, Petitions US Supreme Court on Seattle Healthcare Case

Read on below for coverage of recent law firm news from McDermott Will & Emery.

ERIC Files Amicus Brief Rebutting DOL Attempt to Create New Regulations in Lawsuit

McDermott Will & Emery’s Andrew C. LiazosMichael B. Kimberly and Charlie Seidell recently filed an amicus brief in the US Court of Appeals for the 10th Circuit on behalf of the ERISA Industry Committee (ERIC). McDermott filed the brief in response to a US Department of Labor (DOL) amicus brief that advanced a novel interpretation of its regulations which, if adopted through litigation, would change longstanding procedures for benefit determinations under self-funded medical plans sponsored by large employers. The amicus brief focuses on key arguments against the DOL’s attempted regulatory reinterpretation, including that:

  • DOL may not rewrite its regulations outside of notice-and-comment rulemaking;
  • DOL’s interpretation of its own regulations is inconsistent with the plain text of the regulations;
  • There are good policy reasons underlying differential treatment of healthcare and disability benefits determinations; and
  • DOL’s interpretation of the regulations in its amicus brief is not entitled to deference under the Supreme Court decision in Kisor.

Read ERIC’s amicus brief here.

Read ERIC’s statement here.

ERIC Petitions US Supreme Court on Seattle Healthcare Case

McDermott Will & Emery’s Michael B. KimberlySarah P. Hogarth and Andrew C. Liazos, are co-counsel on a petition for certiorari before the Supreme Court of the United States on behalf of the ERISA Industry Committee (ERIC). The petition calls for review of ERIC’s legal challenge to the City of Seattle’s hotel healthcare “play or pay” ordinance. The ordinance mandates hospitality employers make specified monthly healthcare expenditures for their covered local employees if their healthcare plans do not meet certain requirements. The petition demonstrates that Seattle’s ordinance is a clear attempt to control the benefits provided under medical plans in violation of the preemption provision under the Employee Retirement Income Security Act of 1974, as amended (ERISA). This case is of significant national importance. Several other cities have proposed making similar changes, and complying with these types of ordinances will substantially constrain the ability of employers to control the terms of their medical plans on a uniform basis. ERIC’s petition is joined by several trade associations, including the US Chamber of Commerce, the American Benefits Council and the Retail Industry Leaders Association.

Read ERIC’s petition for writ of certiorari here.

Read ERIC’s statement here.

 

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Supreme Court Holds That Judges Can’t Invent Rules Governing Arbitration Waiver

Litigators who defend cases brought under the Fair Labor Standards Act (“FLSA”), particularly ‘collective actions” alleging wage-and-hour violations, often have been able to counter, or even sometimes support, allegations that arbitration agreements have been waived where the conduct of a party has caused prejudice to the other side. In the case of Morgan v. Sundance, Inc., a unanimous Supreme Court has now held that the determinant of waiver is solely dependent upon the nature and magnitude of the actions of the party that might be inconsistent with arbitration, without respect to alleged prejudice.

Morgan thus is an important case for any civil litigator, but it is especially significant for those who deal with employment disputes potentially governed by arbitration agreements, and for those who draw up such agreements in the first place. As is well known, the Court has, in recent years, frequently upheld the primacy of arbitration agreements pursuant to the Federal Arbitration Act (FAA). In the Morgan case, a unanimous Court does it again. Ms. Morgan was an hourly employee at a Taco Bell franchise who had signed an arbitration agreement intended to govern employment disputes. Notwithstanding the arbitration agreement, Morgan went to federal court to bring a nationwide “collective action” arguing that her employer had violated the Fair Labor Standards Act. Sundance, a franchisee of Taco Bell, initially defended against the lawsuit as if the arbitration agreement didn’t exist—filing a motion to dismiss (which the District Court denied) and engaging in mediation (which was unsuccessful). Next, Sundance moved to stay the litigation and compel arbitration under the FAA—almost eight months after Morgan filed the suit. Morgan then expectedly opposed on grounds of waiver of the right to arbitrate.

The governing precedent in the Eighth Circuit, where the case was litigated below, conditioned a finding of waiver of an arbitration agreement on whether the party knew of the right, “acted inconsistently with that right,” and—critical here– “prejudiced the other party by its inconsistent actions.” In deciding that issue, the Court below, as had eight other circuits, invoked “the strong federal policy favoring arbitration” to decide the matter of waiver. Two circuits rejected that rule, and the Supreme Court granted cert. to resolve that split. Justice Kagan, writing for all of the Justices, agreed with those two circuits.

Holding that “the FAA’s ‘policy favoring arbitration’ does not authorize federal courts to invent special, arbitration-preferring procedural rules,” and deciding no other issue with respect to the merits, the Court remanded the case for further proceedings that focus on the whether the employer relinquished its right to arbitrate by its actions that were inconsistent with it. Whatever an employer might otherwise have preferred (given the prior law in most courts of appeals), given the Supreme Court’s holding that any presumption of arbitration and the fact of prejudice are irrelevant, the Morgan case gives clear guidance in several regards, particularly demanding arbitration, if applicable, at the outset of a formal dispute, and resisting any discovery, to the extent possible, until the issue of arbitrability is decided. A defense against waiver simply based on prejudice is not going to fly.

©2022 Epstein Becker & Green, P.C. All rights reserved.

Monkeypox—Do Employers Need to Worry?

Several cases of monkeypox have now been found in the United States. We do not yet know whether employers will need to worry about monkeypox in the context of their workforces and workplace, but it may be wise to be informed.

Monkeypox is a viral illness that has symptoms including body aches, headaches, fatigue, and, notably, a bumpy skin rash. It is primarily found in Africa, most particularly in the Democratic Republic of the Congo. Monkeypox has an incubation period that generally lasts 7-14 days but can be as long as 5-21 days. It has now recently been found in the United States, according to the U.S. Centers for Disease Control and Prevention (CDC). The first case reported was in Massachusetts in a man who had been to Canada. The second was in New York City by another individual who had a virus similar to monkeypox. And the third was a “presumptive case” involving a Broward County, Florida, man who had traveled internationally, the CDC said.

Unlike what we have been through with COVID-19, wearing a mask will likely not be an issue with monkeypox. It is spread through infected animals, prolonged person-to-person contact, direct contact with lesion materials, or indirect contact through contaminated items, such as contaminated clothing. Avoiding these will help avoid the possibility of infection. Since frequent handwashing continues to be a good hygiene practice, continuing to make this an easy and frequent practice for employees is generally a good health practice, according to health officials.

Monkeypox has also recently been found in Australia, Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom. According to public health officials, the risk of exposure remains low although there are expected to be more cases in the United States. Health officials believe the smallpox vaccination will offer some amount of protection from monkeypox.

Employers that have employees who are soon to travel internationally, either for personal or business reasons, may want to consider educating them on the symptoms, how the virus is transmitted, and the fact that they may wish to consult with their own healthcare practitioners about the smallpox vaccination. There is no indication that travel should be avoided or prohibited.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

EEOC and the DOJ Issue Guidance for Employers Using AI Tools to Assess Job Applicants and Employees

Employers are more frequently relying on the use of Artificial Intelligence (“AI”) tools to automate employment decision-making, such as software that can review resumes and “chatbots” that interview and screen job applicants. We have previously blogged about the legal risks attendant to the use of such technologies, including here and here.

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued long-awaited guidance on the use of such AI tools (the “Guidance”), examining how employers can seek to prevent AI-related disability discrimination. More specifically, the Guidance identifies a number of ways in which employment-related use of AI can, even unintentionally, violate the Americans with Disabilities Act (“ADA”), including if:

  • (i) “[t]he employer does not provide a ‘reasonable accommodation’ that is necessary for a job applicant or employee to be rated fairly and accurately by” the AI;
  • (ii) “[t]he employer relies on an algorithmic decision-making tool that intentionally or unintentionally ‘screens out’ an individual with a disability, even though that individual is able to do the job with a reasonable accommodation”; or
  • (iii) “[t]he employer adopts an [AI] tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.”

The Guidance further states that “[i]n many cases” employers are liable under the ADA for use of AI even if the tools are designed and administered by a separate vendor, noting that “employers may be held responsible for the actions of their agents . . . if the employer has given them authority to act on [its] behalf.”

The Guidance also identifies various best practices for employers, including:

  • Announcing generally that employees and applicants subject to an AI tool may request reasonable accommodations and providing instructions as to how to ask for accommodations.
  • Providing information about the AI tool, how it works, and what it is used for to the employees and applicants subjected to it. For example, an employer that uses keystroke-monitoring software may choose to disclose this software as part of new employees’ onboarding and explain that it is intended to measure employee productivity.
  • If the software was developed by a third party, asking the vendor whether: (i) the AI software was developed to accommodate people with disabilities, and if so, how; (ii) there are alternative formats available for disabled individuals; and (iii) the AI software asks questions likely to elicit medical or disability-related information.
  • If an employer is developing its own software, engaging experts to analyze the algorithm for potential biases at different steps of the development process, such as a psychologist if the tool is intended to test cognitive traits.
  • Only using AI tools that measure, directly, traits that are actually necessary for performing the job’s duties.
  • Additionally, it is always a best practice to train staff, especially supervisors and managers, how to recognize requests for reasonable accommodations and to respond promptly and effectively to those requests. If the AI tool is used by a third party on the employer’s behalf, that third party’s staff should also be trained to recognize requests for reasonable accommodation and forward them promptly to the employer.

Finally, also on May 12th, the U.S. Department of Justice (“DOJ”) released its own guidance on AI tools’ potential for inadvertent disability discrimination in the employment context. The DOJ guidance is largely in accord with the EEOC Guidance.

Employers utilizing AI tools should carefully audit them to ensure that this technology is not creating discriminatory outcomes.  Likewise, employers must remain closely apprised of any new developments from the EEOC and local, state, and federal legislatures and agencies as the trend toward regulation continues.

© 2022 Proskauer Rose LLP.

May 2022 Legal Industry News: Law Firm Additions, Industry Awards and Recognition, and Pro Bono Efforts

Happy May! As the weather gets warmer, we hope you are remaining safe, relaxed, and healthy. Please read on to find the latest news in law firm hiring and expansion, legal industry recognition, and pro bono and legal aid efforts.

Law Firm Hiring and Expansion

Sidley Austin LLP has expanded its Emerging Companies practice with the addition of Cynthia Bai and Nicholas Frey, both of whom are located in the firm’s Palo Alto office. Ms. Bai, who also joins Sidley’s Global Finance group, focuses her practice on debt financing transactions across a variety of sectors, including healthcare, life science, and technology. Mr. Frey, who also joins the firm’s Employee Benefits and Executive Compensation group, focuses his practice on capital markets transaction support, equity plan and award design, mergers and acquisitions, and more.

Martin Wellington, leader of Sidley’s Emerging Companies and Venture Capital practice and a member of the firm’s Executive Committee, said:

“With over a dozen new partners nationally in the emerging growth practice over the past several years, our strategic investment in this sector is only gaining momentum. Cynthia and Nic bring the Silicon Valley-native expertise that entrepreneurial technology and life sciences companies expect in credit and executive compensation matters, as they are intimately familiar with the bespoke practices and market norms that have grown up in this sector.”

Kennedys Law LLP has promoted 22 new attorneys to partner, a record-high number for the firm. With these additions, the firm’s total worldwide partner count stands at 293. The following attorneys have been selected for promotion:

“I am delighted to recognise and reward a record number of new partners this year and to see that success shared so widely across our global offices,” said senior partner Nick Thomas. “We are incredibly fortunate to have such a dedicated and diverse workforce, which not only enables us to be where our clients need us most but has allowed us to continue growing even during a challenging couple of years.”

Akin Gump Strauss Hauer & Feld LLP has added Uri Itkin as a partner in the Investment Funds Litigation practice group. Mr. Itkin, a nationally recognized litigator and trial attorney, represents investment funds in all types of securities and commercial matters, such as real estate transactions, distressed corporate debt, and structured finance.

“Uri’s arrival is another outstanding addition to our litigation practice,” said Akin Gump chairperson Kim Koopersmith. “Uri is at the intersection of funds, litigation and regulatory, all market leading practices at our firm. He is perfectly situated to add tremendous value to our clients.”

“I am looking forward to continuing to grow my practice and building relationships with Akin Gump’s investment fund clients and my new colleagues at the firm,” said Mr. Itkin. “I am particularly excited about the firm’s wide range of knowledge and experience and its collaborative approach. They give clients valuable access to Akin Gump’s established team of knowledgeable attorneys who are experienced in a wide cross-section of investment fund practices.”

Industry Awards and Recognition

Sordum Ndam and Richard W.F. Swor, attorneys at Bradley Arant Boult Cummings LLP, have been recognized as Top 30 Under 30 professionals by the Cystic Fibrosis Foundation’s Tennessee Chapter. The honor is awarded to individuals who have shown dedication to their local communities and reached noteworthy achievements in their careers.

Ms. Ndam, an associate in the firm’s Economic Development and Environmental Law practice groups, is a member of the 2022 spring cohort of the Arts Board Matching for nonprofit board service experience in Nashville. Mr. Swor, an associate in the firm’s Litigation and Intellectual Property practice groups, serves on the board of the Belmont Wesley Fellowship and on the LGBT Law Executive Council of the Tennessee Bar Association.

“We are proud of Sordum and Richard for their professional and philanthropic efforts and for their recognition by such an important organization,” said Bradley Nashville Office Managing Partner Lauren B. Jacques.

Keith Hebeisen, a partner at Clifford Law Offices PC, is set to receive the Illinois Trial Lawyers Association (ITLA) Leonard M. Ring Lifetime Achievement Award. Each year, an ITLA committee selects one lawyer who has dedicated “a substantial part” of their work to the organization; Hebeisen has been an ITLA member since his induction as a lawyer in 1983. He also served as ITLA President in 2005-06, and has been a member of the ITLA Executive Committee for decades.

Mr. Hebeisen, a longtime medical malpractice attorney in Chicago, has represented clients in a wide array of industries, including but not limited to transportation, product liability and toxic torts. He is a Fellow in the International Academy of Trial Lawyers, and he additionally serves on the Board of Governors of the American Association of Justice.

Wilson Elser Moskowitz Edelman & Dicker LLP has been nominated for the Cyber Law Firm of the Year 2022 award by Advisen, a leading provider of data, media and technology solutions for the commercial property.

Every year, the award is presented to law firms and legal professionals who are deemed most influential in the cyber risk and cybersecurity industry. The winner will be announced on June 16th, 2022 at Gotham Hall in New York City.

Pro Bono and Legal Aid Efforts

Gilbert LLP, a complex dispute resolution-focused law firm in Washington D.C., has announced a new pro bono project, focused on assisting victims of this winter’s deadly tornadoes in Kentucky. The firm has partnered with Disaster Relief at Work and the town of Mayfield, Kentucky to rebuild the local park, which was heavily damaged by the weather. Gilbert will also make a significant financial contribution to ensure that the park is restored to its former condition.

“Mayfield Mayor Kathy Stewart O’Nan realized that rebuilding the park would help revitalize their town and give residents a spirit of hope going forward,” said Craig LitherlandGilbert’s Managing Partner and Chief Operating Officer.  “Our attorneys decided that we wanted to be a part of Mayfield’s rebuilding efforts, and we are pleased to have been able to help in multiple ways.”

Partnering with Lawyers for Good Government (L4GG), law firm Katten Muchin Rosenman LLP is providing pro bono legal aid for Ukrainian citizens seeking Temporary Protected Status in the United States. Participating through L4GG’s TPS Pro Bono Project for Ukraine, the firm will offer free legal assistance from volunteer attorneys, who will assist in applying for TPS and answer any legal questions necessary.

Presently, Katten is also working with ongoing pro bono partner Airlink, providing monetary assistance through donation-matching efforts. Airlink developed a response plan to assist refugees of Ukraine through the delivery of aid and the transportation of emergency response teams into neighboring countries.

The Legal Aid Service of Broward County and the Coast to Coast Legal Aid of South Florida recently honored several legal professionals for their commitment to seeking justice for the most vulnerable members in their communities. The Annual Recognition Awards, held May 2-6, 2022, aim to promote a better understanding of the law and its role in society.

2022 Award Recipients are as follows:

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