The EU plans to impose retaliatory tariffs on $20 billion of U.S. exports in response to subsidies allegedly provided to American plane manufacturer Boeing. However, the EU will have to wait for WTO approval in separate proceedings. The United States and the EU have been involved in WTO dispute settlement proceedings regarding subsidies for large civil aircraft since 2004.
Duties of 10 percent apply to imports of passenger and cargo aircraft from France, Germany, Spain, and the United Kingdom (where the majority of Airbus production is based), provided that they have an unladen weight exceeding 30,000 kg.1
Duties of 25 percent apply to imports of other products from all EU member states (or a subset of these member states, depending on the product category). These products include certain cheeses, pork, coffee, seafood, fruit, dairy spreads, wine, whisky, apparel, bedding, optical instruments, appliances, tools, folding knives, and magnets.
Military aircraft, civil helicopters, and parts or components of civil aircraft are not subject to the duties.2
1 Examples of subject aircraft over 30,000 kg are regional jets capable of seating more than 100 passengers (such as the Airbus A220) and any larger aircraft (including long-haul, wide-body jets). Smaller aircraft, including recreational aircraft, private jets, most turboprop aircraft, and most regional jets with a capacity of fewer than 100 passenger, have an unladen weight of less than 30,000 kg and are excluded.
2 Airbus has production facilities in the United States, that rely on components imported from the EU. Additionally, some EU companies produce certain components of military aircraft for export to the United States.
The need to coordinate individual country compliance across numerous countries whilst still maintaining a common company culture requires extensive knowledge of national laws and considerable flexibility.
Contracts
US-based businesses will be used to working with at-will offer letters, but these are mostly unheard of elsewhere. In most jurisdictions, detailed employment contracts are not only customary, but are required by law. As you would expect, companies must ensure the legal compliance of their contractual documentation for each country in which they do business. This includes engagement letters, employment offers, employment contracts, bonus schemes, stock option plans, etc.
With employment contracts, the most common approach is to prepare a contract compliant with local law in accordance with best practices in the jurisdiction where the individual is to be employed. Contracts should incorporate crucial terms, such as probationary periods, termination grounds, working time provisions, and post-termination non-compete and/or non-solicitation provisions.
Countries have varying rules on the maximum duration of a probationary period. For example, France permits an eight-month probationary period, one renewal included, for executives under an indefinite-term contract (contrat à durée indéterminée); whereas a 90-day probationary period is standard in the United States.
Subject to applicable statutory restrictions in each country, termination provisions provide a good starting point to enforce the departure of an employee, for example in case of a violation of company policies, such as a code of conduct.
In France, where the legal working time is 35 hours per week, there is the option of entering into flat-rate pay agreements for autonomous executives whose roles and responsibilities do not permit alignment with the collective working time/office schedule. In the United Kingdom, there exist more flexible, zero-hours contracts, under which the employer is not obliged to provide any minimum working hours but, equally, the employee has no obligation to accept the work offered.
The rules on post-termination provisions, such as confidentiality, non-compete and non-solicitation restrictions, vary significantly. Some jurisdictions follow a reasonableness approach (Australia, the United Arab Emirates, and the United Kingdom); others have outright prohibitions (India, Mexico, and Russia); and others mandate compensation for non-compete clauses (China, France, and Germany).
With so many nuances country-by-country, contract drafters often consider choice of law and jurisdiction clauses. Public policy considerations may, however, override such clauses. For an Italian citizen hired in Italy to work in Italy, it will be difficult to apply Australian law merely because the employer is an Australian corporation. The general rule is that the laws of an employee’s physical worksite will likely apply, regardless of such clauses.
The relevant law for all European Union countries is the Rome I Regulation. Under Rome I, foreign employees in Europe benefit from the mandatory laws of the country with which they have the closest connection, which will usually be the country where they normally work. Accordingly, a German employee working in France should receive a French law-governed employment contract, even if the employee works for a UK employing entity.
For highly mobile employees, however, the place of work is often debatable. For instance, English employment courts have decided that an employee working remotely in Australia has the right to bring an unfair dismissal claim in the United Kingdom if the work is done for a UK employer, regardless of the employee’s physical worksite.
Forum-selection provisions that call for a forum other than the place of employment tend to be unenforceable outside the United States. In London, US expatriates working under contracts with such clauses who sue before an English Employment Tribunal are unlikely to see their claim dismissed when their employer invokes the forum-selection clause.
In choice-of-forum situations, Europeans invoke the provisions of the “Recast Brussels Regulation.” These codify the general rule that employees rarely have to litigate employment disputes outside their host country place of employment, even if a choice-of-foreign-forum clause purports to require otherwise.
Communicating Global Policies
Every organisation has bespoke policies, employee handbooks, and a code of conduct. In addition, every organisation has its own HR practices, such as evaluation processes and training programmes, all dictated by the corporate culture and even corporate vocabulary. It can be challenging to extend those across borders and the legal systems of different countries.
In France, policies related to safety, disciplinary procedures, harassment, whistleblowing, etc., particularly if the policy provides sanctions, must be incorporated within internal rules (règlement intérieur), which must be filed with the employment court and inspectorate. If a company fails to file its policies correctly, it may not be able to discipline employees for violating the rules.
Country by country, companies must consider the interrelationship between the contract and the applicable policies. In some jurisdictions, it is advisable to incorporate relevant handbook policies into the contract. In the United Kingdom, for example, it is compulsory to mention disciplinary and grievances procedures in the contract.
Language Barriers
Where the policies are written is, however, merely the beginning. How they are written is much more complicated. Communicating clearly in multiple languages is now a core HR function for global entities. Many jurisdictions, such as Belgium, France, and Poland, require contracts to be in the local language, even for an employee fluent in the primary language used by the employer. If the contract is not in the local language, its provisions, the policies, and other elements, will be unenforceable, at least for the employer.
A typical example is a global bonus plan, where a failure by the employer to translate the target objectives can allow the employee to claim a bonus without needing to comply with the terms of the plan (i.e., without achieving the stated goals or objectives). This has been confirmed by French case law.
In some countries, such as Turkey, the local language will always prevail, regardless of what is provided for in the contract. In those cases, ensuring translation accuracy can avoid inadvertently granting employees more generous terms under a local translation than the company intended.
Local language translations are also required for other purposes. For instance, in Spain the employment contract needs to be filed with the government, in Spanish. In other countries, such as China, works councils and unions will need to be consulted on the implementation of policies, and submissions for those consultations will need to be in the local language.
As a result, businesses now often consider whether to create employment documents in the local language only, or in two languages. If a document is used that has two columns showing the corporate language and the local language, it is crucial to state which language prevails.
I had intended to commend the European Court of Justice for placing sensible limits on the extraterritorial enforcement of the EU’s Right to be Forgotten. They did, albeit in a limited way,[1] and it was a good decision. There. I did it. In 154 words.
Now for the remaining 1400 or so words.
But reading the decision pushes me back into frustration at the entire Right to be Forgotten regime and its illogical and destructive basis. The fact that a court recognizes the clear fact that the EU cannot (generally) force foreign companies to violate the laws of their own countries in internet sites that are intended for use within those countries (and NOT the EU), does not come close to offsetting the logical, practical and societal problems with the way the EU perceives and enforces the Right to be Forgotten.
As a lawyer, with all decisions grounded in the U.S. Constitution, I am comfortable with the First Amendment’s protection of Freedom of Speech – that nearly any truthful utterance or publication is inviolate, and that the foundation of our political and social system depends on open exposure of facts to sunlight. Intentionally shoving those true facts into the dark is wrong in our system and openness will be protected by U.S. courts.
Believe it or not, the European Union also has such a concept at the core of its foundation too. Article 10 of the European Convention on Human Rights states that:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
So we have the same values, right? In both jurisdictions the right to impart information can be exercised without interference by public authority. Not so fast. The EU contains a litany of restrictions on this right, including a limitation of your right to free speech by the policy to protect the reputation of others.
This seems like a complete evisceration of a right to open communication if a court can force obfuscation of facts just to protect someone’s reputation. Does this person deserve a bad reputation? Has he or she committed a crime, failed to pay his or her debts, harmed animals or children, stalked an ex-lover, or violated an oath of office, marriage, priesthood or citizenship? It doesn’t much matter in the EU. The right of that person to hide his/her bad or dangerous behavior outweighs both the allegedly fundamental right to freedom to impart true information AND the public’s right to protect itself from someone who has proven himself/herself to be a risk to the community.
So how does this tension play out over the internet? In the EU, it is law that Google and other search engines must remove links to true facts about any wrongdoer who feels his/her reputation may be tarnished by the discovery of the truth about that person’s behavior. Get into a bar fight? Don’t worry, the EU will put the entire force of law behind your request to wipe that off your record. Stiff your painting contractors for tens of thousands of Euros despite their good performance? Don’t worry, the EU will make sure nobody can find out . Get fired, removed from office or defrocked for dishonesty? Don’t worry, the EU has your back.
And that undercutting of speech rights has now been codified in Article 17 of Regulation 2016/679, the Right to be Forgotten.
And how does this new decision affect the rule? In the past couple weeks, the Grand Chamber of the EU Court of Justice issued an opinion limiting the extraterritorial reach of the Right to be Forgotten. (Google vs CNIL, Case C‑507/17) The decision confirms that search engines must remove links to certain embarrassing instances of true reporting, but must only do so on the versions of the search engine that are intentionally servicing the EU, and not necessarily in versions of the search engines for non-EU jurisdictions.
The problems with appointing Google to be an extrajudicial magistrate enforcing vague EU-granted rights under a highly ambiguous set of standards and then fining them when you don’t like a decision you forced them to make, deserve a separate post.
Why did we even need this decision? Because the French data privacy protection agency, known as CNIL, fined Google for not removing presumably true data from non-EU search results concerning, as Reuters described, “a satirical photomontage of a female politician, an article referring to someone as a public relations officer of the Church of Scientology, the placing under investigation of a male politician and the conviction of someone for sexual assaults against minors.” So, to be clear, while the official French agency believes it should enforce a right for people to obscure that they have been convicted of sexual assault against children from the whole world, the Grand Chamber of the European Court of Justice believes that the people convicted child sexual assault should be protected in their right to obscure these facts only from people in Europe. This is progress.
Of course, in the U.S., politicians and other public figures, under investigation or subject to satire or people convicted of sexual assault against children do not have a right to protect their reputations by forcing Google to remove links to public records or stories in news outlets. We believe both that society is better when facts are allowed to be reported and disseminated and that society is protected by reporting on formal allegations against public figures or criminal convictions of private ones.
I am glad that the EU Court of Justice is willing to restrict rules to remain within its jurisdiction where they openly conflict with the basic laws of other jurisdictions. The Court sensibly held,
“The idea of worldwide de-referencing may seem appealing on the ground that it is radical, clear, simple and effective. Nonetheless, I do not find that solution convincing, because it takes into account only one side of the coin, namely the protection of a private person’s data.[2] . . . [T]he operator of a search engine is not required, when granting a request for de-referencing, to operate that de-referencing on all the domain names of its search engine in such a way that the links at issue no longer appear, regardless of the place from which the search on the basis of the requester’s name is carried out.”
Any other decision would be wildly overreaching. Believe me, every country in the EU would be howling in protest if the US decided that its views of personal privacy must be enforced in Europe by European companies due to operations aimed only to affect Europe. It should work both ways. So this was a well-reasoned limitation.
But I just cannot bring myself to be complimentary of a regime that I find so repugnant – where nearly any bad action can be swept under the rug in the name of protecting a person’s reputation.
As I have written in books and articles in the past, government protection of personal privacy is crucial for the clean and correct operation of a democracy. However, privacy is also the obvious refuge of scoundrels – people prefer to keep the bad things they do private. Who wouldn’t? But one can go overboard protecting this right, and it feels like the EU has institutionalized its leap overboard.
I would rather err on the side of sunshine, giving up some privacy in the service of revealing the truth, than err on the side of darkness, allowing bad deeds to be obscured so that those who commit them can maintain their reputations. Clearly, the EU doesn’t agree with me.
[1] The Court, in this case, wrote, “The issues at stake therefore do not require that the provisions of Directive 95/46 be applied outside the territory of the European Union. That does not mean, however, that EU law can never require a search engine such as Google to take action at worldwide level. I do not exclude the possibility that there may be situations in which the interest of the European Union requires the application of the provisions of Directive 95/46 beyond the territory of the European Union; but in a situation such as that of the present case, there is no reason to apply the provisions of Directive 95/46 in such a way.”
[2] EU Court of Justice case C-136/17, which states, “While the data subject’s rights [to privacy] override, as a general rule, the freedom of information of internet users, that balance may, however, depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information. . . .”
Two of the three dominant college textbook publishers – McGraw-Hill Education, Inc. and Cengage Learning Holdings II, Inc – have agreed to merge, creating a virtual duopoly in the college textbook market and setting the stage for a potential antitrust fight with the Antitrust Division of the U.S. Department of Justice. McGraw-Hill and Cengage claim the new company will generate global growth, improve margins, and produce efficiencies that will lead to more affordable education materials for students.
But several student and consumer groups disagree, arguing the merger will lead to decreased competition and higher prices for college textbooks. They also claim the post-merger entity will implement digital strategies (e.g., all-access digital subscriptions) that will: (1) force smaller competitors out of the market; (2) eliminate the secondary textbook market, which provides students a lower cost option for purchasing or renting textbooks; and (3) allow the two dominant publishers to collect and monopolize certain types of student data, including data showing students’ learning styles, students’ understanding of core concepts, students’ need additional assistance, and/or students’ risk of dropping out.
The Scholarly Publishing and Academic Resources Coalition (SPARC) has been one of the loudest critics of the merger. On August 14, 2019, SPARC sent a letter to the DOJ urging it to block the merger, arguing that it will “significantly decrease competition in a market already rife with anti-consumer behavior.”
In its section titled “The Textbook Market is Broken,” SPARC explains that college textbooks are sold in a “captive market” because students are forced to purchase the materials selected by their professors. This system “effectively hands the three major companies who currently dominate the market a blank check to develop expensive materials without regarding the preferences, needs, or financial circumstances of students. The textbook industry’s current state of dysfunction results from years of consolidation, unsustainable practices, and lack of price competition.” SPARC points to textbook pricing as an example of this dysfunction, as prices “have increased 184% over the last two decades — three times the rate of inflation.”
In a separate letter sent to the DOJ at the end of July, U.S. PIRG Education and student leaders from colleges across the country raised similar concerns. Specifically, the students explain they have “directly felt the impacts of skyrocketing textbook prices, further exacerbated by Cengage and McGraw-Hill’s efforts to remove cost-cutting options for students by undermining used book markets,” and that “[t]o maintain profit margins, publishers have put out custom or frequent new editions to make it difficult to find a used book for our classes ….” Citing a rather shocking statistic, the students claimed that “65% of students have skipped buying a book at some point in their college career because of cost despite 94% of them knowing it would hurt their grade.”
The students also identified several specific harms caused by “innovative” digital models employed in the textbook industry:
The publishers issue expiring access codes to paid online platforms that students must also use to submit homework and test answers, destroying the used book market;
Students cannot sell their materials at the end of the course or keep them or future reference, harming students who already cannot afford books;
Automatic billing or so-called “inclusive access” means that students are automatically charged for materials, eliminating their ability to price shop; and
Based on contracts proposed at some schools, publishers will continue to raise prices at the same rate that has led to the current affordability crisis.
The potential anticompetitive impacts of this merger are obvious and significant. Assuming the relevant market is the U.S. college textbook market, the merger is between two entities that each control more than 20% of an already highly concentrated market. Under relevant case law and the DOJ’s/FTC’s Horizontal Merger Guidelines, the merger presumptively increases market power for the post-merger entity and violates Section 7 of the Clayton Act. Moreover, the merging entities have made clear they intend to develop an all-access digital subscription service that, if adopted en masse, will likely eliminate both smaller competitors and the secondary market for college textbooks. Finally, by creating a virtual duopoly, the merger increases the likelihood of coordination among rivals. Considering these issues, the DOJ must take a very close look at this merger and implement conditions that address these issues if the merger is approved.
These are just a few of the findings from fSquared Marketing’s “Legal Marketing Mental Wellness Survey Report”. The survey polled 200 legal marketers and business professionals working at law firms primarily in the United States and Canada.
Recently, the legal industry has started to take stress and mental health seriously, but the conversation has invariably focused on the wellbeing of lawyers,” says Lynn Foley, CEO of fSquared Marketing. “That’s not the entire picture—stress affects everyone. Law firms often have a clear hierarchy and stress flows downhill to fall on the shoulders of the professional staff.”
“When we initially sought out information about mental health within legal marketing and business development, we found that there wasn’t any research on the subject,” explains Foley. “From my experience working with lawyers, I understood that we needed more than anecdotes and emotion to advance the conversation, we needed information and data. While we aren’t actually involved in HR or wellness consulting at fSquared Marketing, we saw that there was a need for this research and we had the skills to pursue it.”
Why are marketing staff so stressed out? There are several compounding factors.
Overworked and overwhelmed
Marketing staff say they have too much work assigned to them and not enough support to effectively manage demands on their time. The vast majority also reported that their department suffered from a lack of marketing resources. This is a sure-fire recipe for chronic stress and, eventually, burnout.
75% of respondents said that they felt overwhelmed at work while two-thirds said that stress is eroding their ability to focus on the task at hand. This is unfortunate and ironic since high-pressure situations are when powers of concentration become most critical.
As one respondent commented: “We aren’t surgeons, but we do carry a tremendous amount of our own stress as well as the stress of others… There are no resources and there are very few people who would ever admit to needing them anyway for fear of appearing weak — stigma is an issue for everyone in the legal industry, not just lawyers.”
A divide between lawyers and “non-lawyers” (professionals)
It’s no secret that attorneys face significant threats to their mental wellbeing. As the American Bar Association describes it, “Lawyers work in an adversarial system with demanding schedules and heavy workloads, which may contribute to increased stress levels.”
The legal industry deserves some credit for recognizing this problem and many law firms are taking steps to improve the mental health of attorneys. Critics would undoubtedly say that change isn’t coming fast enough and that many initiatives are focused on symptoms, not root causes.
While more firms are advancing mental health initiatives, these are not always extended to professional staff. A survey of 30 Am Law Firms found that 36% of firms that offer mental health programming do no offer these programs to staff.
Many respondents to fSquared Marketing’s survey mentioned this divide between lawyers and staff. “Stress and mental health is mostly addressed for the lawyers and not the ‘non-lawyer’ roles, in my opinion,” one respondent noted.
58% of survey respondents agreed or strongly agreed with the statement: “There is a focus on the mental wellbeing of lawyers in our industry.” Compare this with the 9% who agreed with the statement: “There is a focus on the mental wellbeing of non-lawyers in our industry.”
One respondent’s comments summarized a common perspective: “It is unfortunate that law firms segregate mental health awareness between lawyers and non-lawyers. Somehow they feel that staff (with whom they work directly) do not suffer from the same level of stress that the lawyers do.”
A lack of respect for marketers
The good news is that 92% of marketing and BD staff felt that they had an important role to play at their firm and many said that their ideas were often heard, valued, and put into action (73%).
Although professionals recognize their value, they often perceive a lack of respect from attorneys. The majority (51%) agreed with the statement: “There is a lack of respect for me/my role by the lawyers.”
Few factors are likely to prove as harmful to staff wellbeing. The divide between lawyers and staff is again a contributing factor. “It’s stressful”, one respondent commented, “when law firms hire ‘smart’ and ‘well-respected’ professionals who really want to do what’s best for the overall business, but then their ideas are brushed aside because they aren’t part of the partnership or don’t have a J.D.”
Changing the culture
The issues raised by this survey are disquieting. It’s clear that law firms need to take mental health seriously, for staff as much as for attorneys.
The survey did, however, find some cause for hope. For one, 62% of respondents said that their team’s marketing ‘wins’ are celebrated.
As one legal marketer said: “The level of stress varies significantly from firm to firm. Even though I am very busy at my firm, my work is appreciated and that goes a long way toward feeling good about my job.”
The fact that staff experiences vary between firms is evidence that law firms do not have to be toxic work environments. It is entirely possible for law firms to foster cultures of respect. Those that do are likely to enjoy a competitive advantage.
As one respondent said, “A good, friendly culture goes a long way”.
On September 9, 2019, the National Labor Relations Board (the “Board”) clarified its test for unionizing “micro units” of employees within larger workforces, and prevented the International Association of Machinists from representing a small group of Boeing Co. technicians at a plant in South Carolina. The Boeing Company, 368 NLRB No. 67 (2019). In a three-to-one vote, the Board said a proposed bargaining unit consisting of about 175 flight-readiness technicians at Boeing’s Charleston Final Assembly operation does not meet federal standards for appropriate units, because the workers are not distinct from the site’s larger workforce of approximately 2,700 maintenance and production workers.
The International Association of Machinists won an election in May of 2018 to become the bargaining representative of this smaller unit of employees. This election followed an earlier election where a large unit of production and maintenance workers rejected the Union in a 2,087 – 731 vote. After the May 2018 election, the Company appealed the certification of the smaller unit of Boeing employees, arguing that the NLRB Regional Director had improperly approved the small unit of flight-readiness technicians.
In Boeing, the Board indicated that the standard it set forth for unionizing smaller bargaining units of employees in the PCC Structurals decision from December of 2017 was being misapplied. The standard for unionizing micro units of employees, as set forth in Boeing, requires a three-step legal analysis to determine the appropriateness of the proposed bargaining unit. First, the proposed unit must share an internal community of interest. Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed. Third, consideration must be given to the Board’s decisions on appropriate units in the particular industry involved.
Moving forward, unions will have to demonstrate a sufficiently distinct community of interest among the proposed bargaining unit as compared to excluded employees. And, excluded employees’ distinct interests will have to outweigh the similarity of interests that excluded employees share with members of the proposed bargaining unit. This decision strikes a strong blow against unions’ efforts to organize and represent smaller bargaining units.
With fall officially upon us, the legal industry continues to whirl with change, innovation and movement. Read on to learn about some of the developments from the past two weeks, covering law school changes, law firm updates and legal technology developments.
Law Firm Moves: Mergers, Practice Group Additions and New Hires
Boston law firm Anderson & Kreiger LLP recently announced Lon F. Povich has joined the firm as Counsel. Povich is former Chief Legal Counsel to Massachusetts Governor Charlie Baker.
Mr. Povich says: “As I return to the private practice of law, I wanted to join a firm that offered challenging work in both the public and private sectors as well as an inclusive and supportive culture that prioritizes practicing law with the highest professional standards.”
As Chief Legal Counsel, Povich oversaw the confirmation process for 130 judges across the commonwealth, including 4 on the Supreme Judicial Court. Additionally, he counseled on the regulation of new industries, such as gig economy staples like Uber, short term rentals like Airbnb and the legal marijuana industry. Povich also contributed to the 2018 criminal justice reform bill and the 2015 reforms for the Massachusetts Bay Transit Authority (MBTA). David Mackey, Managing Partner at Anderson & Kreiger says, “Lon will bring to the firm experience with the wide variety of issues he dealt with in the Baker administration as well as a diverse set of experiences in the private sector and as a federal prosecutor. We know that he will be an excellent colleague and he will further strengthen our ability to serve our clients.”
James V. Drew has joined Katten in the firm’s New York office as a partner in its Insolvency and Restructuring practice. Drew has fifteen years of experience advising clients across a variety of industries on insolvency matters. He has particular experience in “conflicts counsel” or as an independent director role on investigations or litigations of claims and causes of actions on behalf of debtors, secured and unsecured creditors and indenture trustees. Additionally, he has experience handling matters as lead counsel for debtors, lenders and other creditors, equity holders, liquidators and defendants in avoidance actions or bankruptcy litigation.
Steven Reisman
Steven J. Reisman, the head Katten’s New York Insolvency and Restructuring practice, says, “Jim is a highly skilled attorney who is respected by his clients for his practical advice and business-minded approach to addressing their most pressing insolvency and restructuring issues.”
DLA Piper attorneys Claire Hall (Los Angeles), Richard Hans (New York), Marc Horwitz (Chicago) and Isabelle Ord (Los Angeles) are leading the firm’s new LIBOR Transition practice, assisting companies with impact assessment and advising on benchmark reform implementation across multiple jurisdictions and products. This transition from interbank offered rates to alternative reference rates poses challenges to companies that are operational, legal, related to taxes, accounting and compliance. DLA will assist companies with these challenges by monitoring developments across industry working groups and addressing benchmark transition across jurisdictions like ISDA, SFIG/SFA, LSTA, SIFMA and the ARRC.
Hans points out that DLA Piper, with its track record of advising some of the largest financial services companies and institutions on operations and strategic planning, is well suited to assist with the LIBOR transition. He says, “Our LIBOR transition team will be able to assist clients in creating and implementing strategic and customized action plans that lay out the steps needed to implement benchmark transition.”
Karen Mangasarian
Karen Mangasarian has joined Haley Guiliano, a boutique IP law firm as a Partner. She will join the firm in their New York office, but she was attracted to the firm’s presence in not only New York, but also Silicon Valley and London. She says: “I was attracted by Haley Guiliano’s entrepreneurial spirits and business value-based approach to intellectual property, as well as its commitment to diversity and the mentoring of junior lawyers and technical advisors.”
Mangasarian has over twenty years of experience in life sciences practice, including patent filing and prosecution, freedom to operate and landscape analyses, and contested proceedings in the USPTO and other patent offices. Mangasarian earned her JD from New York Law School while working as a post-doctoral fellow in microbiology at the New York University Medical Center. She has also studied pharmacology, earning a Ph.D., and a BS Degree in Biochemistry from the University of Wisconsin.
Jim Haley, head of the Life Sciences practice at Haley Guiliano, says “Karen is a marvelous addition to our firm and to our Life Sciences practice.”
Full-service business law firm based in Portland, Oregon, Ater Wynne will merge practice into Buchalter, bolstering the latter’s presence in the Pacific Northwest. Ater Wynne’s 22 attorneys will join Buchalter on in October, bringing Buchalter to roughly 300 attorneys in nine locations across the country, and adding Buchalter’s second office in the Pacific Northwest in under three years.
Todd A. Mitchell, Ater Wynne’s Managing Partner will become Managing Shareholder of the Portland office and a member of Buchalter’s Board of Directors. Mitchell calls the move “an opportunity to provide stronger counsel to our clients in Portland and the surrounding region,” and he says the two groups have a strong cultural fit.
Adam J. Bass, President and CEO of Buchalter, has overseen more than 130 attorneys added to the firm and has opened offices in California and in Washington State. He calls the move a chance to “stay ahead of the curve. This move is about looking to the future and the right cultural and business fit.”
Law Firm Awards, Recognitions and Achievements
Zuckerman Law principal Eric Bachman was named to the prestigious “Top Lawyers in America” list for 2020 by Best Lawyers in the field of Labor and Employment. Lawyers are nominated for this achievement, and then evaluated by their peers based on professional expertise. Bachman was included in the 2020 Edition of Washington D.C.’s Best Lawyers.
Bachman is the Chair of the discrimination and retaliation practices at Zuckerman Law, and prior to his work with Zuckerman he served in senior roles at the Department of Justice Civil Rights Division and in the U.S. Office of Special Counsel where he worked on class actions and whistleblower protection act settlements.
Preeminent workplace law firm Jackson Lewis once again was listed on the BTI Litigation Outlook 2020 report, earning “Powerhouse” rankings in Complex Employment Litigation and the Employment Litigation categories. These rankings are based on in-depth interviews with legal decision-makers, involving data from more than 9,000 corporate counsel client interviews.
Jackson Lewis is on track to have a record number of trial victories in 2019, and this is in part due to the firm’s forward-thinking approach through innovative programs like its Advanced Trial Techniques Academy, which enhances the already strong litigation strength of the firm’s attorneys.
Firm Co-Chairs Kevin G. Lauri and William J. Anthony: “Jackson Lewis remains committed to staying abreast of national litigation trends faced by employers and delivering the best possible results, by both providing exceptional client service and retaining a deep bench of top-notch litigators.”
BTI reaches out to legal decision-makers at large organizations, with more than $1 billion in revenue, targeting decision-makers in the industries that have the largest legal spend, consulting Chief Legal Officers, Chief Legal Operating Officers and other executives with a say in the selection of outside counsel. BTI’s 2019 report indicates an expectation of growth in litigation for the third year in a row. More information about the BTI Litigation Outlook 2020 report can be found here.
The law firm of Sills Cummis & Gross received top ranking as one of the “highly recommended” New Jersey litigation firms in the 2020 edition of Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms & Attorneys. This is the third year in a row Sills Cummis & Gross received this honor. Focusing solely on litigation in the United States, this guide is published by Euromoney Institutional Investor PLC. Firms recognized are chosen based on interviews with the country’s leading private practice lawyers and in-house counsel. Thirteen members of Sills Cummins & Gross were also included.
MoginRubin LLP is representing a class of non-bank ATM operators across the United States arguing that Visa, Mastercard and its affiliated banks conspired to fix ATM fees, requiring anticompetitive overcharges for network processing fees, resulting in higher ATM surcharges and foreign transaction fees when customers use ATM’s not associated with their bank.
The proposed class represents 60% of the U.S. ATM market and includes the following: ATMs of the South, Inc., Business Resource Group, Inc., Just ATMs USA, Inc., Wash Water Solutions, Inc., ATM Bankcard Services, Inc., Selman Telecommunications Investment Group, LLC, Scot Gardner d/b/a SJI, Turnkey ATM Solutions, LLC, Trinity Holdings Ltd, Inc., and T&T Communications, Inc. and Randal N. Bro d/b/a T&B Investments. Roughly five years ago Visa and Mastercard attempted to have the case dismissed, even taking the matter to the U.S. Supreme Court, however, the Supreme Court found that the companies had changed their argument after the court granted certiorari and dismissed the writ as “improvidently granted.”
Jonathan Rubin of MoginRubin LLP calls the rules governing the fees “absurd” designed to punish consumers who choose less expensive networks or the defendant’s competitor’s networks. He says, “The independent ATM operators and regional networks are providing a necessary service that banks are unwilling to provide or to invest in, but Visa and Mastercard are using their market power to impose anti-competitive fees and bleed the operators and consumers for their own profit,” he added. “Mastercard and Visa have no business telling independent ATM operators what to charge.”
Legal Industry News, Law School Updates
Leading legal publisher Fastcase announced today the acquisition of NextChapter, the cloud-based bankruptcy software for attorneys and paralegals.
Bankruptcy Paralegal Janine Sickmeyer used her expertise in preparing bankruptcy cases to create NextChapter, teaching herself to code and building the application from the ground up, launching in 2016. The service became known as “the turbo tax for bankruptcy filings” and its success was built on the efficiency created by understanding the best workflows and practices into an easy to use, full-circle solution used by several thousand law firms across every district in the U.S. Upon Fastcase’s acquisition of NextChapter, Sickmeyer will become Managing Director and Founder of NextChapter and Director of Practice Workflow at Fastcase. She calls the acquisition “a dream come true” and she voices her admiration for Fastcase leadership. She says, “it’s invigorating to collaborate and continue to build NextChapter’s company and products alongside them. Fastcase and NextChapter share the same core beliefs on customer-focused products. I know this opportunity will allow us to continue serving our mission.”
The UCI Law Graduate Tax Program and Alteryx Inc. Announce Tax and Data Analytics Partnership, designed to train future tax attorneys on ways big data analytics can work in tax law.
Students in the UCI Law Graduate Tax Program will learn on the program already used by in-house tax departments–Alteryx Designer, and will learn how to use the data analytics platform to generate data-based legal tax advice, earning a certification for successful completion. This practicum is the first time Alteryx will work with a law school, and the group will provide software licenses to students who participate in the program. Omni Marian, Professor of Law and the Academic Director of the UCI Graduate Tax Program, says the program is a way to prepare students for the way practicing tax law will be in the future. He says, “Alteryx for Good’s generosity allows us to help our students to become future leaders of the legal tax profession.”
Bachelor’s Degree Center which provides a free guide to bachelor degree programs across all disciplines, recently released four guides to the best Paralegal bachelor degree programs in the United States, including the 25 Best for 2020, the 15 Best Online Paralegal Programs, the 10 Fastest Online Paralegal Programs, and the 10 Most Affordable Paralegal Bachelor’s Programs.
The top 3 Best Paralegal Bachelor’s Programs for 2020 are:
Auburn University
Quinnipiac University
Montclair State University
The Top 3 Online Paralegal Bachelor’s Programs for 2020 are:
Tulane University
University of Central Florida
University of Massachusetts Lowell
The Top 3 Most Affordable Paralegal Bachelor’s Programs for 2020 are:
Bellevue University
Charter Oak State College
Peirce College
The guide points out that while law schools have been graduating new attorneys facing an uphill battle in the legal marketplace, paralegals are still very much in demand. A standard entry into the profession is a two-year associate degree, however, many paralegals combine work with further study, and a bachelor’s degree in legal studies can be the key to moving ahead in the profession. Whether an online program or a traditional program, this guide provides important information so students—non-traditional or otherwise, can make the best choice for their situation.
That’s it for now. We’ll be back in a few weeks with more updates on the legal industry.
Massachusetts has taken a drastic and abrupt step by banning the sale of all vaping products, nicotine and THC, within its state borders for the next four months. This drastic and sweeping prohibition against vaping products will have far-reaching economic consequences for many small businesses that make up the bulk of this new and burgeoning industry. The root cause of the recent vaping-related illnesses appears to be the result of illicit and unregulated THC cartridges from the black market.
Reports and Causes
Dr. Michael Siegal, a professor at Boston University’s School of Public Health, recently stated: “Given the fact that close to 90% of the cases and 100% of the deaths for which products have been reported are associated with marijuana vaping, it is inexcusable that the CDC [Centers for Disease Control and Prevention] fails to distinguish between the products being vaped.” The communications from CDC also have failed to distinguish between vaping oil-based e-liquids − which were used in the illicit THC cartridges that have given rise to multiple arrests in Arizona and Wisconsin and cause lipoid pneumonia − and the water/alcohol-based e-liquids that are used in virtually all e-cigarettes. More troubling is the fact that the media largely has overlooked that the manufacturers of nicotine-containing e-liquids filed their ingredient lists with the FDA years ago.
There are 805 lung injury cases reported from 46 states and 1 U.S. territory. Twelve deaths have been confirmed in 10 states.
CDC has received sex and age data on 771 patients.
About 69% of patients are male.
Nearly two thirds (62%) of patients are 18 to 34 years old; with 22% of patients between 18 and 21.
Sixteen percent of patients are under 18 years of age.
All reported patients have a history of e-cigarette product use or vaping.
The latest findings from the investigation into lung injuries associated with e-cigarette use or vaping suggest products containing THC play a role in the outbreak.
CDC has received data on substances used in e-cigarettes or vaping products in the 30 days prior to symptom onset among 514 patients:
About 77% reported using THC-containing products; 36% reported exclusive use of THC-containing products.
About 57% reported using nicotine-containing products; 16% reported exclusive use of nicotine-containing products.
While some policy makers appear to be confused over the cause of the recent reports of lung disease, there is no coincidence that the recent use of vitamin E acetate and possibly other unapproved thickening agents by the illicit THC manufacturers caused the public health crisis that prompted Massachusetts’s ban of all vapor products. One should ask whether it makes sense that vaping nicotine e-liquids, which have been available since at least 2007, would suddenly cause lipoid pneumonia lung disease (which is a rare condition that occurs when fat particles enter the lung) disproportionately in white males with an average age of 19.
Impact of the Ban
The abrupt action of Massachusetts resembles the witch hunts of that former colony’s past. With a single stroke of a pen on an emergency order from Governor Charlie Baker, Massachusetts has foreclosed the right of its citizens to their freedom of choice, denying them the right to an arguably safer alternative to smoking cigarettes, and caused far-reaching economic harm to many small businesses that manufacture and sell vaping products. Such an action will surely cause many bankruptcies, as these legal businesses can no longer afford to pay rent or buy products made and/or sold by other U.S. companies, pay salaries to employees, or pay taxes to Massachusetts and the federal government.
The economic impact of the vaping industry in the United States in 2018 was almost $24 billion, which means that the impromptu actions of Massachusetts will likely cause a reversing trend and cast a negative shadow over a legitimate and safe industry. The broad scope of the ban smacks of an unconstitutional taking of property without due process. Many affected businesses will have difficulty surviving without four months of revenue, which is why national trade organizations such as The Vapor Technology Association and others are considering legal options.
Call for International Forum on Safety and Health Benefits
Unfortunately, as the witch hunts continue, consumers will not be safer. Any person who was vaping legal nicotine containing e-liquids rather than smoking combustible cigarettes will have to make the choice to return to smoking combustible cigarettes or buy a black market e-liquid product. Citizens of Massachusetts who legally use THC through vaping for medicinal purposes also will be affected by the ban. Since all the data shows the lung disease breakouts were overwhelmingly caused by illicit THC cartridges made with vitamin E acetate or other unregulated thickening agents, the public health ban on legitimate products only increases the black market demand and the risk of illicit THC cartridges finding their way back into the hands of consumers, in addition to creating a black market for nicotine e-liquids while the CDC warns consumers not to buy these products off the street
The manufacturers of both nicotine-containing e-liquids and THC-containing products support meaningful regulation so health problems caused by illicit manufacturers can be prevented. A sensible public health strategy devised by the federal government likely could have prevented many of these illnesses and deaths by stopping unregulated illicit-market THC vape products from getting into the hands of consumers. But the voices of science and good public policy are falling on deaf ears while legitimate small businesses are being harmed and consumer choices for legitimate products are being eliminated.
One can only hope that Massachusetts reconsiders this ban and that other states do not follow this type of overreaching prohibition. Public policy regulators should discuss these issues in an international forum such as The E-Cigarette Summit, where the public health benefits experienced by the UK and other countries as well as the detailed facts of the recent cases of lung disease can be debated before businesses are closed. Until then, the black market profits while legal small businesses are “vaporized.”
Vimeo, Inc. was sued last week in a class action case alleging that it violated the Illinois Biometric Information Privacy Act by “collecting, storing and using Plaintiff’s and other similarly situated individuals’ biometric identifiers and biometric information…without informed written consent.”
According to the Complaint, Vimeo “has created, collected and stored, in conjunction with its cloud-based Magisto service, thousands of “face templates” (or “face prints”)—highly detailed geometric maps of the face—from thousands of Magisto users.” The suit alleges that Vimeo creates these templates using facial recognition technology and “[E]ach face template that Vimeo extracts is unique to a particular individual, in the same way that a fingerprint or voiceprint uniquely identifies one and only one person.” The plaintiffs are trying to liken an image captured by facial recognition technology to a fingerprint by calling it a “faceprint.” Very creative in the wake of mixed reactions to the use of facial recognition technology in the Facebook and Shutterfly cases.
The suit alleges “users of Magisto upload millions of videos and/or photos per day, making videos and photographs a vital part of the Magisto experience….Users can download and connect any mobile device to Magistoto upload and access videos and photos to produce and edit their own videos….Unbeknownst to the average consumer, and in direct violation of…BIPA, Plaintiff…believes that Magisto’s facial recognition technology scans each and every video and photo uploaded to Magisto for faces, extracts geometric data relating to the unique points and contours (i.e., biometric identifiers) of each face, and then uses that data to create and store a template of each face—all without ever informing anyone of this practice.”
The suit further alleges that when a user uploads a photo, the Magisto service creates a template for each face depicted in the photo, and compares that face with others in its face database to see if there is a match. According to the Complaint, the templates are also able to recognize gender, age and location and are able to collect biometric information from non-users. All of this is done without consent of the individuals, and in alleged violation of BIPA.
Although we previously have seen some facial recognition cases alleging violation of BIPA, and there are numerous cases alleging violation of BIPA for collection of fingerprints in the employment setting, this case is a little different from those, and it will be interesting to watch.
The past year has seen a proliferation of lawsuits alleging that food product labels mislead consumers about the product’s ingredients. The trend continued last month, with decisions from the Court of Appeals for the First Circuit and one of its district courts reaching different results on motions to dismiss complaints alleging deceptive food labels.
Last month, the First Circuit reinstated a class action lawsuit against New England Coffee for violation of Massachusetts’ consumer protection laws related to the coffee brand’s label for “Hazelnut Crème” coffee. Dumont v. Reily Foods, 18-2055 (1st Cir. Aug. 8, 2019). Plaintiff alleged that the product name was deceptive because the product did not contain hazelnuts. A Massachusetts federal district court judge dismissed the suit because the complaint lacked sufficient particularized facts to satisfy the heightened pleading standard for fraud allegations.
The First Circuit reversed in a 2-1 decision. The majority noted that although the ingredient list on the product package’s back label read “100% Arabica Coffee Naturally and Artificially Flavored,” reasonable consumers might take different approaches in determining whether the coffee actually contained real hazelnuts. One might check the list of ingredients to ensure the coffee contained hazelnut while others may not, instead relying on the name of the product, without searching the ingredient list, “much like one might easily buy a hazelnut cake without studying the ingredients list to confirm that the cake actually contains some hazelnut.” The majority accordingly concluded that whether the product name implied that the product contained hazelnuts was better suited for resolution “from six jurors, rather than three judges.” In dissent, Circuit Judge Lynch argued that “a reasonable consumer plainly could not view the phrase ‘Hazelnut Crème’ as announcing the presence of actual hazelnut in a bag of coffee which also proclaims it is “100% Arabica Coffee.”
Neither opinion is especially persuasive. As for the dissent, hazelnuts are not coffee, and the fact that a coffee product called “Hazelnut Crème” is said to contain 100% Arabica Coffee does not reasonably rule out the possibility that the product contains hazelnuts. By the same token, however, other courts have concluded that reasonable consumers do not ignore a product’s prominently displayed ingredient list when information on the front label may be viewed as ambiguous concerning whether an ingredient is or is not contained in the product. See, e.g., Jessani et al. v. Monini North America, which one of the authors litigated and which this blog covered. To the extent the Dumont majority suggests otherwise, the opinion would be misguided. That said, whereas the olive oil product in Monini was labeled as “truffle flavored,” here, there was no modifier to suggest that the coffee in question simply tasted, or smelled, like hazelnuts. In such cases, perhaps, one could conclude that the front label lacked ambiguity, and thus would not compel prospective purchasers to search the label further.
Less than a week after the First Circuit’s Dumont decision, Judge Alison Burroughs of the District of Massachusetts tossed a putative class action suit alleging that the advertising and packaging of the cereal “Honey Bunches of Oats” falsely suggested it was sweetened only or primarily with honey, when in fact the main sweeteners are sugar, brown sugar, and corn syrup. Lima v. Post Consumer Brands, 18-12100 (D. Mass. Aug. 13, 2019).The plaintiffs pointed to images of a sun, bee, and honey dipper as representing that honey was the principal sweetener in the cereal. They also cited surveys showing that most consumers believe honey is “better for you than sugar” and that approximately half of consumers are willing to pay more for foods that are primarily sweetened with honey.
In concluding that the consumers failed to state a claim, Judge Burroughs found that plaintiffs had offered no reasonable basis for their alleged belief that the honey references on the packaging implied that honey was the primary sweetener in the cereal rather than simply one of its primary flavors. In addition, even assuming the packaging could be viewed as portraying honey to be an ingredient instead of or as well as a flavor, Judge Burroughs found that plaintiffs still failed to state a claim. She noted that, unlike the “Hazelnut Crème” product in Dumont that did not contain any hazelnut, Honey Bunches of Oats did, in fact, contain honey. She also distinguished the case from Mantikas v. Kellogg, in which the Second Circuit found that a “made with whole grain” claim could imply that the product contained more whole wheat flour than white flour. Here, according to Judge Burroughs, the mere references to honey on the package carried no implication that honey was the primary sweetener, and a reasonable consumer concerned about how the cereal was sweetened would have consulted the cereal’s list of ingredients.
If nothing else, these cases underscore the fact-specific nature of the inquiry as to what product labels imply about their ingredients.
The effects of stress on law firm staff has often been overlooked even though a number of 
As one respondent commented: “We aren’t surgeons, but we do carry a tremendous amount of our own stress as well as the stress of others… There are no resources and there are very few people who would ever admit to needing them anyway for fear of appearing weak — stigma is an issue for everyone in the legal industry, not just lawyers.”
Few factors are likely to prove as harmful to staff wellbeing. The divide between lawyers and staff is again a contributing factor. “It’s stressful”, one respondent commented, “when law firms hire ‘smart’ and ‘well-respected’ professionals who really want to do what’s best for the overall business, but then their ideas are brushed aside because they aren’t part of the partnership or don’t have a J.D.”
Bachman is the Chair of the discrimination and retaliation practices at Zuckerman Law, and prior to his work with Zuckerman he served in senior roles at the Department of Justice Civil Rights Division and in the U.S. Office of Special Counsel where he worked on class actions and whistleblower protection act settlements.
Bankruptcy Paralegal Janine Sickmeyer used her expertise in preparing bankruptcy cases to create NextChapter, teaching herself to code and building the application from the ground up, launching in 2016. The service became known as “the turbo tax for bankruptcy filings” and its success was built on the efficiency created by understanding the best workflows and practices into an easy to use, full-circle solution used by several thousand law firms across every district in the U.S. Upon Fastcase’s acquisition of NextChapter, Sickmeyer will become Managing Director and Founder of NextChapter and Director of Practice Workflow at Fastcase. She calls the acquisition “a dream come true” and she voices her admiration for Fastcase leadership. She says, “it’s invigorating to collaborate and continue to build NextChapter’s company and products alongside them. Fastcase and NextChapter share the same core beliefs on customer-focused products. I know this opportunity will allow us to continue serving our mission.”
