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Mid-Year Marketing Check-up for Law Firms: The 7 Most Important Metrics

July 2 marks the halfway point of the year, and for many law firms, that means it is time to reflect on their business growth strategies and plan ahead for end of the year client gifts. Successful attorneys know that marketing is a huge part of the effectiveness of these initiatives. It takes careful evaluation of your marketing tools, campaigns, and overall law firm goals in order to make the second half of the year stretch the boundaries of what your firm is capable of.

Although marketing looks a little different for business to consumer practices and business to business practices, here are some tips that will work for everyone. You can rely on these seven areas to reflect on as you develop a solid, data-based marketing plan for Q3 and Q4 for your law firm:

Growth Metrics and Reconfiguring

The very first item on your list is to sit down and dig deep into the numbers. Take a look at your analytics from all your marketing sources (both paid and unpaid). Review your web traffic and get a good handle on where you are getting the bulk of your online visitors from. Review your paid retargeting campaigns and see which web pages are scoring highest for returning visitors. Evaluate the leads you received from offline sources like conferences, networking events, and print advertising.

For each of your offline and online sources, create an estimate of how much the current and future business is worth. This exercise will ensure that you are being conscious of how your marketing dollars are being spent and will give you a data-driven course of action when it comes to what should be invested in more and what can be cut.

Content Marketing Evaluation

Halfway through the year is a good time to stop and reflect on your content marketing plan’s performance. This includes digital, print, image, and video content that you are developing in-house. Review the top pieces of content that you generated with all stakeholders discussing the following:

Why did this piece of content work for our law firm?
What kinds of interaction did it receive and from whom? (Shares, likes, comments, clicks to website)
What targeted industries or demographic groups do we want to reach that we are not currently reaching?
Is our current content producer (writer, video producer, editor, etc.) the appropriate fit for the content our law firm is producing?
What is missing from our law firm’s content marketing campaigns?
What are the steps for filling these gaps?
What could we cut?

Answering these questions is a good start to ensuring that your content marketing dollars are getting the best return on investment. In addition, this is a good time to take a look at the upcoming months and plan out the types of content that your law firm will be producing before the end of the year.

Client Appreciation Strategy

The end of the year is just six months away, which means that you need to begin thinking about how you will honor the people who have helped you be successful this year. This might be something as simple as sending out holiday greeting cards, or something as elaborate as an honorary black-tie dinner. Whatever you choose to do, make sure that you include it in your half-year review so that you can appropriately budget the time and talent to make it happen for your clients and referral sources around the holidays.

Online Reputation Management

When things are busy, it is easy to let things like online biographies and photographs remain untouched and slide into antiquity. Unfortunately, most people looking for your services will look online first before they make a call. Outdated biographies may under-represent your skills or hold inaccurate contact information, making it hard for referrals to ever find you.

Old photographs can be even more detrimental. A great headshot is often the lynchpin deciding whether or not a potential client feels that you are trustworthy, dedicated, and approachable. People seeking legal representation often are looking for the person they see online to match what the person looks like in real life.

At the year’s halfway point, it is time to take an hour or so and ensure that you are accurately represented to the hundreds of people who will come into contact with your online profiles.

Award Calendar Updates

Awards and honors are continuing reminders of your law firm’s status as among the best in your field. As such, the mid-year mark is a good time to both reflect on the awards your team earned so far and make a strategy for how to continue the pattern of success.

To ensure the best chance of earning further accolades, I suggest creating or updating an editorial calendar spreadsheet designed to track: a) potential awards; b) due dates for those awards; c) submissions created; d) submissions approved; and, e) submissions sent.

Of course, you do not have to write every award submission or nomination yourself. But creating a plan to capture the “low-hanging fruit” of awards you easily fit the qualifications for is an important step to take at least twice per year.

Social Media Review

Similarly, it is wise to consider the social media channels that you will be planning on using for the next half of the year and develop a plan for those posts in advance. This plan should begin with the large-picture metrics and reconfiguring that I spoke of earlier. Then, once you can see which posts have been effective, it is time to devise additional content that builds on your knowledge of what is working.

Some key things to consider when you are reviewing and planning for the upcoming months’ social media campaigns:

Stock photography. Will you need to have images purchased, or can you take pictures in-house to assist with the need for pictures?
Special dates or celebrations. Can you create a specialized graphic for National Child Safety Awareness Month? What is your plan for honoring the Fourth of July? How about Thanksgiving? Take a minute to put these things on your content calendar so you have more than enough time to plan how you will address these special occasions.
Writing/production schedules. Are there any large-scale videos or specialized pieces of content that will need to be produced (such as a white-paper or e-book)? Give yourself at least a few months notice so that you can get all the involved parties moving together towards the same goals, vision, and deadline.

Website Updates and Audit

At least twice a year, it is a good idea to do a full audit of the functionality and safety of your website. Ensure that your links are in working order, your content management system (CMS) is up-to-date with the latest security protocols, and all of your online content (including attorney biographies) is up-to-date and in working order.

In order to make the second half of the year as good, or better, than the first, it is vital to take stock at this half-way mark. Through careful reflection, collaboration with your colleagues and marketing stakeholders, and foresight into what the future holds, this can be a great time to refresh and rejuvenate your marketing plan.

Article by Meranda M. Vieyra of Denver Legal Marketing.

For more on Legal Marketing see the National Law Review Business of Law page.

Connecticut Enacts Law to Increase Access to Epinephrine Auto Injectors

On June 13, 2019, Connecticut Governor Ned Lamont signed into law Public Act No. 19-19 “An Act Concerning Epinephrine Auto Injectors” (PA 19-19). PA 19-19 went into effect on the same date.

This legislation expands access to epinephrine, which can be lifesaving when treating anaphylactic allergic reactions. PA 19-19 permits “authorized entities” to acquire and maintain a supply of epinephrine cartridge injectors, subject to certain conditions. With a few exceptions, authorized entities are for-profit or nonprofit entities or organizations that employ at least one “person with training.” The new legislation defines a person with training as a person who either:

Has completed and received a certification in a first aid course that has been approved by a “prescribing practitioner” pursuant to a medical protocol (as described below); or
Has received training in the recognition of the signs and symptoms of anaphylaxis, the use of an epinephrine cartridge injector and emergency protocol by a licensed physician, physician assistant, advanced practice registered nurse or emergency medical services personnel.

Prior to PA 19-19, drug wholesalers and manufacturers were permitted to sell epinephrine cartridge injectors to select categories of purchasers, including hospitals, physicians, nursing homes with a full-time pharmacist, pharmacies and certain other institutions with a full-time pharmacist.

PA 19-19 requires authorized entities who desire to acquire or maintain epinephrine cartridge injectors, together with a “prescribing practitioner,” to establish a medical protocol on the administration of epinephrine cartridge injectors by a person with training. Under PA 19-19, a prescribing practitioner is a Connecticut-licensed physician, dentist, podiatrist, optometrist, physician assistant, advanced practice registered nurse, nurse-midwife or veterinarian, authorized to prescribe medication within his or her scope of practice. The medical protocol must address, among other things, proper storage, maintenance and documentation of epinephrine cartridge injectors, and procedures for emergency medical situations involving anaphylactic allergic reactions at the authorized entity’s place of business. The authorized entity must maintain a copy of the medical protocol at the place of business to which it applies, and must annually review the medical protocol with a person with training and a prescribing practitioner.

In the event of an anaphylactic reaction, a person with training may, in accordance with the medical protocol, provide an epinephrine cartridge injector to the individual or to the individual’s parent, guardian or caregiver, or administer the epinephrine cartridge injector, regardless of whether the individual has a prescription or a prior medical diagnosis of an allergic condition. After any such administration of epinephrine, the authorized entity must notify a local emergency medical services organization as well as the prescribing practitioner.

Notably, PA 19-19 holds prescribing practitioners free from civil and criminal liability for establishing the medical protocol or for use of the epinephrine cartridge injector in accordance with PA 19-19. This legislation also holds persons with training and authorized entities free from civil or criminal liability to the individual who experienced anaphylaxis for the provision or administration, in accordance with PA 19-19, of the epinephrine cartridge injector when the person with training has a good faith belief that the individual is experiencing anaphylaxis. However, the immunity does not apply to willful or wanton misconduct or acts or omissions constituting gross negligence.

Article by the Health Law Group Robinson & Cole at Robinson & Cole LLP.

Read more about healthcare legislation on the National Law Review Health Law and Managed Care page.

Your Next Hamburger Could Be “Slaughter-Free”

In the face of an ever-increasing global population set to surpass 9 billion by 2050, agriculture and science have converged to create sustainable, innovative solutions to food production. Cellular agriculture is perhaps the most cutting edge of them all.

Producing meat, poultry and seafood through cellular agriculture promises to revolutionize the way we think about, grow and consume food. When rolled out to consumers in the coming years, these products are expected to have the same nutrition profile and organoleptic properties as their conventionally sourced counterparts. Organoleptic properties refer to the sensory aspects of food, including taste, sight, smell, and touch.

What is Cellular Agriculture?

Cellular agriculture refers to the production of agricultural products from cell cultures. Through cellular agriculture, meat, poultry, and fish can be produced ex vivo, or grown outside the animal. The finished product – commonly referred to as cultured, clean or cell-based meat – replicates the characteristics of muscle harvested from food-producing animals.

How Are Cell-Cultured Foods Made?

The production process is quite complex and varies across producers. At a high level, there are four core elements to production: (1) cell cultures, (2) scaffolds, (3) media and (4) bioreactor (cultivator).

Cells are obtained from food-producing animals, healthy at the time of biopsy. The cells are subsequently separated and transferred in a sterile environment and placed in a bioreactor also referred to as a cultivator. Once placed in the cultivator, the cell cultures are fed nutrients referred to as media. Media is a mixture of ingredients that works as a food source for cell lines. The cultivator controls food supply inputs and temperature, the cells are continuously monitored, and once the meat is cultivated, meat tissues are harvested and stored under appropriate conditions. See Figure 1, below (P.D. Edelman, D.C. McFarland, V.A. Mironov, and J.G. Matheny. Tissue Engineering. May 2005).

Scaling Up Production

Product development efforts are well underway across the globe. In 2016, for example, San Francisco-based Memphis Meats unveiled the first meatball produced with clean meat technology. In late 2018, Aleph Farms debuted the very first cell-cultured steak. Significant investments from Tyson Foods’ venture capital arm Tyson Ventures, Cargill, Bill Gates and Richard Branson — among others — are driving innovation in the field and helping startups to reduce costs and scale up production.

Cell-based meat could hit supermarket shelves within the next 5 years. Before that happens, stakeholders must confront a number of questions. Among those – Who will be the key regulators? How will the regulators work to ensure product safety? And will consumers actually want to eat hamburgers, chicken nuggets and fish fillets produced in such a novel way and perhaps pay a premium to do so?

The Regulatory Conversation

Cellular agriculture came to life in 2018 – from Capitol Hill to the halls of the FDA and USDA. Given the novelty of the production process, the regulators engaged stakeholders to think through an appropriate regulatory pathway for meat, poultry and seafood produced from cell cultures.

A recently issued Memorandum of Understanding (March 7, 2019) outlines the U.S. government’s current thinking regarding a proposed pathway for cell-based meat and poultry. The MOU provides that the FDA and USDA will jointly regulate human food produced using cell culture technology derived from cell lines of USDA-amenable species. In other words, cell-based meat and poultry will be subject to joint FDA-USDA oversight. Seafood products will generally be subject to FDA oversight (except in limited instances where the species is considered to be USDA-amenable, e.g., catfish). This builds on existing precedent as current American food law places the production and processing of meat and poultry under USDA jurisdiction. FDA regulates regulates all seafood except for Siluriformes (catfish) which fall under USDA oversight.

So what will joint regulation look like? The MOU indicates that the FDA will oversee cell collection, cell banks, and cell growth and differentiation. Oversight then shifts to the USDA during the cell harvest stage. USDA’s core tasks will be inspection and labeling. Upon harvest, USDA will conduct inspection activities at cell-based food processing facilities. This means that any establishment engaged in the business of processing harvested USDA-amenable, cell-based foods will need to obtain a federal grant of inspection from the USDA and all such foods will need to bear a USDA mark of inspection.

Many critical questions core to developing a functioning regulatory review process remain to be answered: How will the FDA and USDA initiate their respective application processes, how long will it take to obtain premarket approval, and what will inspections of production facilities look like? Further, how should these products be labeled? The devil will be in the details.

Regulators are currently reviewing comments submitted to the FDA and USDA following two public meetings: (1) An FDA meeting held on July 12, 2018 focused on safety considerations and (2) A joint FDA-USDA meeting held on October 23 and 24, 2018 focused on potential hazards and labeling.

Safety Considerations & Potential Hazards

Regulators are focused on working with stakeholders to:

Consider and develop appropriate controls for potential hazards that may arise during all stages of production, i.e., culturing and harvesting, processing, and packaging.
Understand the safety profile of the cell culture media used to produce cell-based foods.
Leverage best practices from the traditional meat, poultry and seafood production context, as well as the biomedical arena as appropriate, to ensure that meat and poultry produced by way of cellular agriculture are safe and wholesome.
Consider how these products will compare to traditionally produced meat and poultry from a compositional, nutritional and organoleptic standpoint.

Based on our conversations with cell-based meat producers, it is clear that in many cases the production process for cell-based foods will likely not be vertically integrated. That is, each step in the production process could be an end point — i.e., the collection, characterization and qualification of cell-lines could be conducted by Company A; Company B could then grow the meat in a cultivator (bioreactor) with media supplied by Company C; Company D could, in turn, market the meat once harvested at Company B. Hazards could conceivably emerge at each step, and especially during the transportation phase. Thus, regulators and producers will need to consider those transitions and outline where hazard control responsibilities begin and end and how best the FDA and/or USDA should go about verifying compliance.

Labeling

As of this writing, no set nomenclature has been settled upon for meat, poultry or seafood produced through cellular agriculture.

The labeling of cell-based meat and poultry is a hot button issue that came to the forefront in February 2018. That month, the United States Cattlemen’s Association (USCA) filed a petition with USDA’s Food Safety and Inspection Service (FSIS) requesting that USDA undertake rule-making on beef labeling to clarify the difference between beef derived from cattle and “beef” products created through cell culture technology. To date, the USDA has received over 6,100 comments on this petition.

Cell-based meat and conventional agriculture stakeholders have expressed a range of views. Among conventional animal agriculture interests, some contend that terms such as “meat” and “beef” should not be used to describe products produced through cellular agriculture. Others have expressed some openness to using “meaty” terms provided that the labeling clearly indicates how the product was produced. In this regard, some commenters called for the establishment of standards of identity for cell-cultured foods to distinguish them from their conventionally produced counterparts.

At a recent industry meeting and in recent industry trade press, USDA has indicated that the Agency is strongly considering proposing such standards of identity within the next 12 months.

Article by Brian P. Sylvester and Nathan A. Beaver of Foley & Lardner LLP.

Learn more about food production on the National Law Review Biotech, Food and Drug page.

The Tor Browser Afforded CDA Immunity for Dark Web Transactions

The District of Utah ruled in late May that Section 230 of the Communications Decency Act, 47 U.S.C. §230 (“CDA”) shields The Tor Project, Inc. (“Tor”), the organization responsible for maintaining the Tor Browser, from claims for strict product liability, negligence, abnormally dangerous activity, and civil conspiracy.

The claims were asserted against Tor following an incident where a minor died after taking illegal narcotics purchased from a site on the “dark web” on the Tor Network. (Seaver v. Estate of Cazes, No. 18-00712 (D. Utah May 20, 2019)). The parents of the child sued, among others, Tor as the service provider through which the teenager was able to order the drug on the dark web. Tor argued that the claims against it should be barred by CDA immunity and the district court agreed.

The Onion Router, or “Tor” Network, was originally created by the U.S. Naval Research Laboratory for secure communications and is now freely available for anyone to download from the Tor website. The Tor Network allows users to access the internet anonymously and allows some websites to operate only within the Tor network. Thus, the Tor Network attempts to provide anonymity protections both to operators of a hidden service and to visitors of a hidden service. The Tor browser masks a user’s true IP address by bouncing user communications around a distributed network of relay computers, called “nodes,” which are run by volunteers around the world. Many people and organizations use the Tor Network for legal purposes, such as for anonymous browsing by privacy-minded users, journalists, human rights organizations and dissidents living under repressive regimes. However, the Tor Network is also used as a forum and online bazaar for illicit activities and hidden services (known as the “dark web”). The defendant Tor Project is a Massachusetts non-profit organization responsible for maintaining the software underlying the Tor browser.

To qualify for immunity under the CDA, a defendant must show that 1) it is an “interactive computer service”; 2) its actions as a “publisher or speaker” form the basis for liability; and 3) “another information content provider” provided the information that forms the basis for liability. The first factor is generally not an issue in disputes where CDA immunity is invoked, as websites or social media platforms typically fit the definition of an “interactive computer service.” The court found that Tor qualified as an “interactive computer service” because it enables computer access by multiple users to computer servers via its Tor Browser. The remaining factors were straightforward for the court to analyze, as the plaintiff sought to hold Tor liable as the publisher of third-party information (e.g., the listing for the illicit drug).

The outcome was not surprising, given that courts have previously dismissed tort claims against platforms or websites where illicit goods were purchased (such as the recent Armslist case decided by the Wisconsin Supreme Court where claims against a classified advertising website were deemed barred by the CDA).

The questions surrounding the court’s ability to even hear the case also posed interesting jurisdictional questions, as the details of the Tor network are shrouded in anonymity and there are no accurate figures as to how many users or nodes exist within the Utah forum. The court determined that, under plaintiff’s rough estimation, there were around 3,000-4,000 Utah residents who used Tor daily and perhaps, became part of the service (“Plaintiff has set forth substantial evidence to support the assumption that many of these transactions and relays are occurring in Utah on a daily basis”). In a breezy analysis, the court found that plaintiff had provided sufficient evidence to set forth a prima facie showing that Tor maintains continuous and systematic contacts in the state of Utah so as to satisfy the general jurisdiction standard.

This case is a reminder of the breadth of the CDA, as well as a reminder that many of its applications result in painful and somewhat controversial outcomes.

Article by Stephanie J. Kapinos of Proskauer Rose LLP.

More more on Web & Internet issues see the National Law Review page on Communications, Media & Internet.

Incapacitated Woman Gave Birth in Arizona Nursing Home: Attorneys Seeking $45M from the State

Late last December, a nurse at Hacienda HealthCare in Arizona panicked and called 911 as a patient unexpectedly gave birth. The 29-year-old patient, who has been in a vegetative state since age 3, delivered a healthy baby boy. A police investigation concluded that one of her caregivers, a 32-year-old male nurse, raped the patient several times and fathered the child. The victim’s attorneys filed a $45 million notice of claim against the state of Arizona in late May.

After giving birth in the nursing home, the victim and baby were transferred to a nearby hospital. According to the hospital, the baby’s birth was “a repeat parous event,” meaning the victim had likely been pregnant before.

As a result of a near drowning experience in 1992, the victim is described as non-verbal and generally unresponsive. However, she does experience pain and can respond to her surroundings with a groan or a smile.

The staff full of medical professionals said they did not realize the woman was pregnant until a nurse went to change the victim and saw the baby’s head.

An anonymous former caregiver for the woman told ABC-15 she didn’t believe the pregnancy went undetected. “I can’t believe that somebody would bathe her daily for nine months and never know that she wasn’t having a period, that she [was] growing in her midsection, that nurses weren’t keeping track [of her weight],” the former caregiver said. “Those things are shocking to me.”

According to the notice of claim, the nursing home missed 83 opportunities to diagnose the pregnancy. The staff noted the patient’s abdomen was sticking out during 24 checks, and noted swollen legs and feet 12 times. A doctor saw the patient at least 10 times during her third trimester.

Hacienda HealthCare was entrusted to give the patient around-the-clock care. Not only did they overlook the signs of repeated sexual abuse the hospital reported, which allowed for it to continue, but they also failed to detect her pregnancy. The facility’s negligence caused the patient to go through her pregnancy without any proper care and in a state of malnutrition.

The complaint argues that the state of Arizona “cultivated circumstances” that enabled this misconduct and failed to monitor the long-term care facility.

There are many forms of abuse in nursing homes, to both younger and elderly patients. The long-term care facilities we trust with our loved ones are responsible for their safety and well-being.

Article by Sherri Warfel of Stark & Stark.

For more on health care issues see the National Law Review Health Law & Managed Care page.

State Sovereignty 101: State Universities Not Immune to IPR Proceedings

School may be out for the summer, but public colleges and universities would do well to spend their break shoring up strategies and defenses against potential inter partes review (“IPR”) proceedings. Last week the Federal Circuit ruled that states and state agencies (including state affiliated colleges and universities) may not rely on a sovereign immunity defense in a patent IPR proceeding. This decision means that challenges against University of Minnesota patents will proceed at the Patent Trial and Appeals Board (“PTAB”), and that other state affiliated educational institutions also may be subject to such proceedings.

The June 14 decision could open the floodgates to other IPR challenges against patents held by public colleges, universities, and other state entities. State colleges and universities should plan on adjusting various intellectual property clauses of licenses, sponsored research, and other technology transfer and funding agreements in efforts to mitigate the risks associated with an IPR challenge. These institutions also should carefully evaluate and plan for this risk in any assertion or even licensing efforts where a risk of an IPR may arise. Further, public colleges and universities should develop internal strategic plans to reduce the risk of an IPR occurring and to have various strategic approaches to IPR situations should an IPR challenge, or even a threat of an IPR challenge, occur in the future.

In the dispute, Ericsson challenged multiple patents held by the University of Minnesota relating to wireless technologies. The University of Minnesota also faces separate patent challenges to a computer hardware patent and a university patent related to hepatitis C medication.

The Federal Circuit held that for purposes of IPRs, state sovereign immunity is essentially the same as tribal sovereign immunity held by Native American tribes. In 2018, the Federal Circuit ruled that Saint Regis Mohawk could not employ tribal sovereign immunity in a dispute before the PTAB.

“[An] IPR represents the sovereign’s reconsideration of the initial patent grant, and the differences between state and tribal sovereign immunity do not warrant a different result than Saint Regis. We therefore conclude that state sovereign immunity does not apply to IPR proceedings,” the Court wrote in the June 14 ruling. Regents of the Univ. of Minn. V. LSI Corp., No. 2018-1559, 27 (Fed. Cir. Jun. 14, 2019).

The Federal Circuit also wrote that IPR proceedings differ substantively from typical civil litigation, to which sovereign immunity would normally apply unless waived. Instead, the Court writes that IPR proceedings “are essentially agency reconsideration of a prior patent grant.”

In other words, IPRs are more akin to a government agency enforcement action than a civil suit. The PTAB’s primary focus is determining whether a previous patent grant was made in error, rather than resolving a dispute between two adversarial parties. The PTAB may issue a ruling even if the petitioner or patent owner decides not to participate, unlike in civil litigation.

A petition for certiorari was filed in Saint Regis but was denied by the U.S. Supreme Court, which effectively allowed the Federal Circuit decision to stand. It remains to be seen if the University of Minnesota will appeal this ruling or if certiorari would be granted, but if allowed to stand, it is fair to anticipate a significant increase in patent IPR challenges to public colleges and universities as well as to other state agencies.

Click here to read the full opinion from the US Court of Appeals for the Federal Circuit.

Article written by Mark D. Shelley II, Ph.D., Kristin Lamb, Liz LeVan Riley and Jeffrey S. Whittle of Womble Bond Dickinson (US) LLP.

Read more about patent inter partes review proceedings on the National Law Review Intellectual Property page.

Mexico Mandates Protection From Workplace “Psychosocial Risks”

Globalization, technology developments, and the world’s economy, among other factors, have changed our day-to-day dynamics and have transformed the way we work. This means that employees must deal with emotions and circumstances that in the past were not significant but today are studied and classified by scientists as “psychosocial risks.”

The World Health Organization (WHO) and the International Labour Organization (ILO) define psychosocial risks as the interactions within the work environment, content of the work, conditions of the organization and capacities, needs and culture of the employee, and personal considerations—external from work—based on perceptions and experience that can negatively influence health, performance at work, and labor satisfaction.

International organizations are trying to create a broad awareness of psychosocial risks and thereby prevent such risks from damaging employee health, both physical and psychological.

Mexico’s Regulation of Psychosocial Risks at Work

Mexico has taken a big step in the protection of employees with the amendment to the Federal Labor Law on November 30, 2012. This amendment incorporates into the law the concept of “decent and dignified work,” which encompasses respect for the human dignity of employees and, in consequence, the prevention of harm that employees may suffer because of the activities they perform at work.

The amendment and subsequent obligations agreed upon by the current federal government in its national development plan, as well as internationally, compelled the Mexican Ministry of Labor and Social Welfare to issue the Federal Regulation of Health and Safety at Work. Its goal is to establish health and safety provisions, which must be observed at the workplace, “in order to have the conditions to prevent risks, and as a consequence, guarantee employees their right to perform their activities in an environment that assures their lives and health, according to the Federal Labor Law.”

What to Expect in 2019 and 2020: The Psychosocial Risk Factors Standard

Based on the above and with the purpose of complying with current legislation, the Ministry of Labor and Social Welfare developed the Official Mexican Norm: NOM-035-STPS-2018 “Psychosocial Risk Factors at Work – Identification, Analysis and Prevention.” Its main objective is to “identify, analyze and prevent psychosocial risk factors, as well as to promote a favorable organizational environment at workplaces.”

Though the rule has been valid since October 23, 2018, the Ministry of Labor and Social Welfare will not review employers’ compliance with the rule until the October 2019 or October 2020, depending on the employer’s size. Since this matter requires specialist analysis and evaluation, employers may want to contact a specialist on psychosocial risks in order to achieve compliance.

The following are employers’ main obligations under the rule:

Establish, maintain, and disseminate among the employees a psychosocial risks prevention policy
Identify psychosocial risk factors and evaluate the organizational environment (applicable to work places with more than 50 employees)
Use questionnaires to identify psychosocial risk factors (applicable to work places with 16–50 employees)
Disseminate to employees the policy and measures adopted to reduce psychosocial risks
Identify the employees subject to psychosocial damages while working or derived from their work
Provide a registry where employees can learn about psychosocial risk factors and corrective actions taken
Maintain a confidential complaint system so the employees can inform the employer about psychosocial risk factors
Take actions to prevent psychosocial risk factors and corrective measures if psychosocial damage occurs

Co-Authored by Natalia Merino, a law clerk in the Mexico City office of Ogletree Deakins.

This article was written by Ana Paula Delsol Espada at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Learn more about International Legal issues on the National Law Review Global page.

Agents Beware: Representation Agreement May Not Be Enforceable If It Violates State Sports Agent Laws

A North Carolina law designed to protect student-athletes may determine the enforceability of Prime Sports Marketing’s contract with former Duke University star Zion Williamson. While Williamson is preparing to become a member of the New Orleans Pelicans after his name is announced as the No. 1 selection in the 2019 NBA Draft, he is also preparing for a legal battle in a different court…the U.S. District Court for the Middle District of North Carolina.

Williamson has filed suit against the Florida-based company and its president, Gina Ford, to have the marketing contract he signed with Prime Sports declared null and void. After signing a five-year agreement with Prime Sports and an accompanying letter of authorization reaffirming his desire to have Gina Ford begin representing him as his Global Marketing Agent, Williamson changed his mind.

Williamson alleges the agreement was entered into in violation of North Carolina’s Uniform Athlete Agent Act (UAAA) and should be declared void.

In his complaint, Williamson alleges that Prime Sports and Gina Ford violated the specific provisions of the North Carolina law that forbids a person from acting as an agent in the state unless that person has previously registered with the North Carolina Secretary of State’s office. The law applies to any agency contract, including employment agreements and marketing agreements.

In addition, the law mandates any agent to follow a series of procedural requirements to protect student-athletes from unknowingly forfeiting their remaining NCAA eligibility. Any contract between a registered agent and a student-athlete must contain a specific, capitalized notice in boldface print cautioning the athlete of the rights he will be giving up by entering into the contract. Among the many required notices, the contract must state the following:

WARNING TO THE STUDENT-ATHLETE IF YOU SIGN THIS CONTRACT

YOU SHALL LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;
YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT SHALL NOT REINSTATE YOUR ELIGIBILITY.

The agreement Williamson signed with Prime Sports did not contain any of these required notices mandated by the North Carolina law.

Of particular significance will be a judicial determination as to whether Williamson remained a student-athlete when he signed the agreement with Prime Sports and still protected by the North Carolina law. Williamson declared himself eligible to be drafted by an NBA team on April 15, arguably ending his status as an NCAA-eligible athlete. He signed the agreement with Prime Sports on April 20, when he had arguably given up his amateur status and was no longer protected by the state law. While a student-athlete’s declaration for the draft was irreversible at one time, current NCAA bylaws allow a student-athlete to “test the waters” regarding potentially becoming draft-eligible and withdraw his name from consideration as late as May 29 without risking the loss of any remaining eligibility. Here, Williamson lost the option to exercise his rights pursuant to NCAA bylaws and return to Duke University when he signed the contract with Prime Sports.

As the federal court considers Williamson’s complaint and the anticipated defenses and potential counterclaims to be asserted by Prime Sports (which has alleged the potential for $100 million in damages in a pre-complaint letter to Williamson’s attorney), the significance of Gina Ford’s failure to register as an agent with the State of North Carolina before her initial meeting with Williamson could be of crucial importance in determining the enforceability of the agreement between Williamson and Prime Sports.

This post was written by Gregg E. Clifton at Jackson Lewis P.C.

Read more on Sports Law on the National Law Review Entertainment, Art & Sports page.

Delaware, Consent, And The Adequacy Of Email Notice

Since the turn of this century, Delaware has allowed corporations to give notices to stockholders by electronic transmission. 8 Del. Code § 232(a). However, the statute is conditioned upon the stockholder’s consent. California has a similar consent requirement in Corporations Code § 20. Delaware is now proposing to amend Section 232 to permit a corporation to give notice by electronic mail unless the stockholder has objected. See Senate Bill No. 88. The bill would also define “electronic mail” for the first time.

As I was pondering these changes, I came across the following observations about the adequacy of email notifications penned by the estimable and eminently quotable Justice William W. Bedsworth of the California Court of Appeal:

“Email has many things to recommend it; reliability is not one of them. Between the ease of mistaken address on the sender’s end and the arcane vagaries of spam filters on the recipient’s end, email is ill-suited for a communication on which a million dollar lawsuit may hinge. A busy calendar, an overfull in-box, a careless autocorrect, even a clumsy keystroke resulting in a ‘delete’ command can result in a speedy communication being merely a failed one.”

Lasalle v. Vogel, 2019 Cal. App. LEXIS 533 (footnote omitted). Justice Bedsworth’s comments were directed to the adequacy of email notice before taking a default judgment and not the Delaware bill. Nonetheless, his concerns about the adequacy of email are entirely opposite to stockholder notice.

Written by Keith Paul Bishop of Allen Matkins Leck Gamble Mallory & Natsis LLP.

Read more about Corporate Law on the National Law Review Corporate & Business Law page.

HUD Says “No” to DACA Recipients

For some time the mortgage industry, without success, has asked the US Department of Housing and Urban Development to provide a clear answer to the question of whether Deferred Action for Childhood Arrival (DACA) recipients are eligible for FHA loans. HUD finally provided a clear answer in responding to an inquiry from Representative Pete Aguilar (D-CA): “DACA recipients remain ineligible for FHA loans.”

HUD policy, currently reflected in HUD Handbook 4000.1, provides that “[n]on-U.S. citizens without lawful residency in the U.S. are not eligible for FHA-insured Mortgages.” In its letter to Representative Aguilar, HUD addresses the legal status of DACA recipients by referencing statements made by the Department of Homeland Security Secretary when DACA was established:

“In establishing DACA on June 15, 2012, Janet Napolitano, then the Secretary of Homeland Security, made clear that DACA is merely an exercise of ‘prosecutorial discretion’ and ‘confers no substantive right, immigration status or pathway to citizenship.’ Secretary Napolitano further stated that ‘[o]nly Congress, acting through its legislative authority, can confer these rights.’”

We will have to see if HUD’s reliance on the status of DACA recipients to advise that they are not eligible to receive FHA loans prompts Congress to address their immigration status.

Article by Richard J. Andreano, Jr. of Ballard Spahr LLP.

Learn more about DACA issues on the National Law Review Immigration page.

Category: Uncategorized

Connecticut Enacts Law to Increase Access to Epinephrine Auto Injectors

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