Category: Uncategorized

Misidentification of Employer in Discrimination Charge Not Enough for Dismissal

The U.S. Court of Appeals for the Seventh Circuit recently gave an employee a pass in his age discrimination suit against his former employer, where he inaccurately identified his former employer in the charging document. Significantly, the Seventh Circuit forgave the technical defect in the plaintiff’s charge, where the plaintiff had acted diligently and the failure to provide notice to the employer rested almost entirely with the Equal Employment Opportunity Commission (EEOC).

Reversing the district court’s dismissal of the complaint for the plaintiff’s “minor error in stating the name of the employer,” the Seventh Circuit explained that “it is particularly inappropriate to undermine the effectiveness of [the Age Discrimination in Employment Act (ADEA)] by dismissing claims merely because the victim of the alleged discrimination failed to comply with the intricate technicalities of the statute.”

In Trujillo v. Rockledge Furniture LLC, d/b/a Ashley Furniture Homestore, the Seventh Circuit overturned a decision by the U.S. District Court for the Northern District of Illinois granting the defendant employer’s motion to dismiss. The plaintiff filed a charge of discrimination in May 2016, asserting age discrimination and retaliation. The plaintiff supplied the EEOC with the correct address and telephone number of his work location, but misidentified his employer as “Ashley Furniture Homestore.” His employer’s trade name was actually “Ashley Furniture HomeStore – Rockledge.”

Inexplicably, the EEOC did not contact the employer at the address or telephone number provided, but instead forwarded the charge to a Texas entity that operated Ashley Furniture stores in that state. When the EEOC informed the plaintiff’s counsel that the Texas entity had no record of his employment, the plaintiff’s counsel sent the EEOC a paystub listing the entity name and address for the defendant. However, the EEOC still did not contact the defendant. Instead it issued a right to sue letter, and the plaintiff brought suit in April 2017.

Given the plaintiff’s failure to precisely identify the defendant in his charge, the defendant moved to dismiss, arguing a failure to properly exhaust his administrative remedies. The district court granted the motion.

On appeal, the Seventh Circuit reversed for two reasons. First, it found that the plaintiff’s trivial naming error, akin to a misspelling, should not defeat his ability to pursue his claim. Second, and most significantly, the Seventh Circuit explained that, given the information provided to the EEOC, the plaintiff should not have been barred from pursuing his claims as a result of the EEOC’s failure to locate the correct employer.

Notably, the EEOC filed an amicus brief in support of plaintiff’s appeal, admitting its error and arguing that the focus should be on the information provided to the EEOC, not what the EEOC did with that information. The court agreed, stating that the information provided by the plaintiff should have been sufficient for the EEOC to investigate the plaintiff’s allegations and to attempt to eliminate the alleged unlawful practices – which is the purpose of the charge-filing requirement. According to the Seventh Circuit, penalizing the charging party plaintiff for the EEOC’s mistake would frustrate the purpose of charge filing.

The practical effect of this decision is that it narrows the grounds on which employers may obtain dismissal of discrimination suits based upon the plaintiff’s failure to exhaust administrative remedies. While the employer had no notice of the charge, and thus had no opportunity to attempt pre-litigation conciliation, the court gave plaintiff the benefit of the doubt – likely due in no small part to the EEOC admitting it dropped the ball.

Nevertheless, as we highlighted in our blog last week, where appropriate, employers facing discrimination litigation would still be wise to raise the exhaustion defense at the pleading stage, so as not to waive it. Facts may come to light that would permit an exhaustion defense later in the case.

© 2019 BARNES & THORNBURG LLP
More on employment discrimination issues on the National Law Review Labor & Employment page.

Forget About Fake News, How About Fake People? California Starts Regulating Bots as of July 1, 2019

California SB 1001, Cal. Bus. & Prof. Code § 17940, et seq., takes effect July 1, 2019. The law regulates the online use of “bots” – computer programs that interact with a human being and give the appearance of being an actual person – by requiring disclosure when bots are being used.

The law applies in limited cases of online communications to (a) sell commercial goods or services, or (b) influence a vote in an election. Specifically, the law prohibits using a bot in those circumstances, “with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.” Disclosure of the existence of the bot avoids liability.

As more and more companies use bots, artificial intelligence, and voice recognition technology to provide customer service in online transactions, businesses will need to consider carefully how and when to disclose that their helpful (and often anthropomorphized) digital “assistants” are not really human beings.  In a true customer-service situation where the bot is fielding questions about warranty service, product returns, etc., there may be no duty. But a line could be crossed if any upsell is included, such as “Are you interested to learn about our latest line of products?”

Fortunately, the law doesn’t expressly create a private cause of action against violators. However, it remains to be seen if lawsuits nevertheless get brought under general laws prohibiting unfair or deceptive trade practices alleging failure to disclose the existence of a bot.

Also, an exemption applies for online “platforms,” defined as: “any public-facing Internet Web site, Web application, or digital application, including a social network or publication, that has 10,000,000 or more unique monthly United States visitors or users for a majority of months during the preceding 12 months.”  Accordingly, operators of very large online sites or services are exempt.

For marketers who use bots in customer communications – and who are not large enough to take advantage of the “platform” exemption – the time is now to review those practices and decide whether disclosures may be appropriate.

©2019 Greenberg Traurig, LLP. All rights reserved.
Article by Ed Chansky and Ian C. Ballon of Greenberg Traurig, LLP
For more on Internet & Communications see the National Law Review page on Communications, Media & Internet

Asbestos Receiving Renewed Attention in Light of Additional US EPA Assessments under TSCA and Potential Ban by Congress

Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress.  In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance.

On April 25, 2019, US EPA issued a final Significant New Use Rule (SNUR) under Section 5 of TSCA to prevent certain discontinued uses of asbestos from re-entering the marketplace without a review by EPA.  The rule essentially restricts manufacturing, importing or processing of asbestos for certain target uses that are neither ongoing, nor already prohibited under TSCA.

The SNUR covers a number of target uses for which US EPA “has found no information” indicating that they are ongoing: adhesives, sealants, and roof and non-roof coatings; arc chutes; beater-add gaskets; cement products; extruded sealant tape and other tape; filler for acetylene cylinders; certain friction materials; high-grade electrical paper; millboard; missile liner; packings; pipeline wrap; reinforced plastics; roofing felt; separators in fuel cells and batteries; vinyl-asbestos floor tile; woven products; any other building material; and “any other use of asbestos that is neither ongoing nor already prohibited under TSCA.”  While the SNUR does not actually prohibit these uses, none of the uses may return to the marketplace without EPA review of their potential risks to health and the environment.   A party must submit a “significant new use notice” to US EPA at least 90 days prior to commencing manufacturing, importing or processing of asbestos for such uses.

While the Rule effectively expands the number of restricted uses, the SNUR has raised concerns as it essentially removes the uses from US EPA’s pending TSCA risk evaluation of asbestos, which is being performed pursuant to EPA’s December 2016 listing of substances under Section 6(b) of TSCA for which a final risk assessment is due in December 2019.

Meanwhile, Congress is considering a ban on all uses of asbestos (which is already banned in more than 60 countries).  Most recently on May 8, 2019, the House Energy and Commerce Committee’s environmental panel held a hearing on H.R. 1603 (the “Alan Reinstein Ban Asbestos Now Act of 2019” introduced on March 7, 2019).  The Bill seeks to amend TSCA to require US EPA to ban importation and use of asbestos in the US within one year of enactment, broaden EPA’s definition of asbestos to include additional fiber types, and also require that EPA and the Departments of Health and Human Services and Labor assess and report to Congress regarding existing “legacy” asbestos in residential, commercial, industrial, public, and school buildings to determine quantity and risk.

Although there is reportedly openness to a bipartisan compromise on the Democratic-sponsored bill, concerns have been raised as to its application, including the effect upon the chlorine industry and that it may hamper the industry’s ability to manufacture chlorine for public water supply use and healthcare facility sanitization.  For instance, on May 8, 2019, the American Water Works Association submitted comments to the Committee noting that “more than forty percent of the chlorine supply in the United States is dependent on production methods that rely on asbestos.” Further, the relatively short 12-month transition period has been cited as another concern, as well as the associated costs.

While US EPA’s TSCA risk evaluation remains ongoing through the end of 2019 (and possibly beyond) and Congress considers the ban proposed in H.R. 1603 in committee and markup, asbestos will continue to received increased attention.  Industries that deal with asbestos-containing materials would be advised to consult with technical and legal experts to consider the implications of these measures, as well as look for additional opportunities to advocate its position to decision makers as these measures are considered and finalized.

 

© Copyright 2019 Squire Patton Boggs (US) LLP
Read more on Environmental & EPA issues on the National Law Review Environmental, Energy & Resources page.

#MeToo-Inspired Laws Hit the Midwest: Illinois Passes Anti-harassment, Pay Equity, and Board Diversity Legislation

After ending 2018 with a slew of new employment laws, Illinois continues to enact legislation impacting employers. Following the example set by California, Washington, and other states recently, the Illinois legislature passed four new bills targeting equity, transparency, and discrimination last week, and Governor J. B. Pritzker is expected to sign them into law. This gives Illinois companies the opportunity to reevaluate their policies and practices with regard to sexual harassment, equity, and discrimination.

Illinois State Law Changes

  • Sexual Harassment (Senate Bill 75)

As the #MeToo movement continues to be a top priority of state legislatures throughout the country, Illinois joins several other states, such as Arizona, California, Delaware, Oregon, Louisiana, Maine, Maryland, New Jersey, New York, Tennessee, Vermont, and Washington, in passing proactive legislation on the topic. SB 75 contains several provisions designed to prevent harassment and discrimination in the workplace.

First, the law limits unilateral nondisclosure agreements and mandatory arbitration agreements relating to sexual harassment and employment discrimination claims. It remains to be seen whether, upon challenge, courts will find this law and others like it that prohibit arbitration agreements to be preempted by the Federal Arbitration Act.

The legislation also requires employers to disclose to the Illinois Department of Human Rights (IDHR) by July 1, 2020, and each July 1 thereafter, the total number of final adverse administrative rulings or judgments in the preceding year and whether any equitable relief was ordered. In addition, SB 75 requires employers to disclose to the IDHR during an investigation the total number of settlements entered into during the preceding five years that relate to any act of alleged sexual harassment or unlawful discrimination. However, the law prohibits the IDHR from relying on the existence of any settlement to support a finding of substantial evidence.

SB 75 also permits employees who are victims of gender-based violence to take unpaid leave and requires hotels and casinos to provide employees working in isolated spaces with panic buttons to prevent sexual harassment or assault.

Finally, under this law Illinois joins California, New York, Delaware, Connecticut, and Maine in requiring employers to hold annual sexual harassment training for all employees. Like New York’s law, SB 75 calls for the IDHR to produce a model sexual harassment training program, including a program specifically tailored to the restaurant and bar industry.

  • Equal Pay Act (House Bill 834)

HB 834, like recent legislation in Colorado, Washington, and Maine, prohibits employers from screening prospective employees based on salary histories and bars employers from requesting or requiring prospective employees to provide their salary history as a condition of being considered for employment. Importantly, the law expressly states that it does not apply to current employees applying for promotions or transfers with the same employer. The law also expressly permits discussions about an applicant’s expectations with respect to compensation and benefits.

HB 834 would ban employers from requiring employees to sign a contract or waiver that would forbid the employee from discussing compensation information (though human resources employees and supervisors may be prohibited from disclosing compensation information learned in their jobs).

This legislation amends Illinois’s Equal Pay Act of 2003. The law previously prohibited discrimination in pay among jobs that require “equal” skill, effort, and responsibility, but the new law will require employers to compare jobs that require “substantially similar” skill, effort, and responsibility. It also now requires that any factor that accounts for a pay differential must not be “based on or derived from a differential in compensation based on sex or another protected characteristic,” must be job related and consistent with business necessity, and must account for the entire differential. Employers that violate the law may be subject to compensatory or punitive damages. These changes to the Illinois Equal Pay Act may, therefore, call for a fresh look at an employer’s pay equity analysis.

  • Lower Threshold for “Employer” under the Illinois Human Rights Act (House Bill 252)

HB 252 amends the Illinois Human Rights Act (IHRA) and provides that “employer” includes any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. This significantly expands the previous definition of employer, which included any person employing 15 or more employees in Illinois (matching Federal Title VII’s requirements).

  • Disclosure of Board Demographics (House Bill 3394)

HB 3394 requires publicly traded companies based in Illinois to report the demographics of their board and executives, including the self-identified gender and race of each member of its board. The University of Illinois will then publish an annual report card on Illinois companies’ diversity. Companies will also need to report on their policies and practices for promoting diversity. A previous version of the bill would have required companies to include at least one woman, one African-American, and one Latino on their boards, but these requirements were removed from the bill before it was passed by the state legislature.

Practical Takeaways for Employers

Employers should be acutely aware of how these legislative changes affect their workplaces. To prepare for the implementation of the laws above, employers doing business in Illinois may consider doing the following:

  • Ensuring their sexual harassment and discrimination policies comply with the requirements outlined in SB 75
  • Adopting annual sexual harassment trainings that cover the standards set forth in Illinois law and federal law and preparing for such trainings
  • For employers with under 15 employees that were previously not covered by the IHRA, reevaluating policies to ensure they are in compliance
  • Limiting the use of arbitration or nondisclosure agreements with respect to harassment claims where necessary, and revising all employment agreements to ensure their nondisclosure and arbitration clauses meet the standards set forth in SB 75
  • Adjusting hiring or recruitment processes to eliminate questions about salary history as required by HB 834
  • Conducting privileged pay equity audits to evaluate compliance with the amended Illinois Equal Pay Act

Although #MeToo has not changed the fundamentals of federal discrimination law, the cultural shift continues to place new obligations on employers.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
This post was written by Kayla A. McCann and Sarah J. Platt at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
More on Employment & Pay Equality on the National Law Review Labor & Employment page.

FTC Charges Two Japanese Corporations with Alleged HSR Avoidance Scheme

Two Japanese corporations each agreed to pay $2.5 million to settle Federal Trade Commission (“FTC”) charges of violating the premerger notification and waiting period requirements under the Hart-Scott-Rodino (“HSR”) Act.

According to the FTC’s complaint (the “Complaint”), the scheme began when an independent investigation in July 2015 (triggered by an earlier investigation by financial regulators) publicly revealed long-running financial irregularities within Toshiba Corporation (“Toshiba”) and that Toshiba had been overstating its profits by billions. To strengthen its financial statement for FY 2015, Toshiba attempted to sell its subsidiary Toshiba Medical Systems Corporation (“TMSC”), which conducts substantial business in the United States, before the end of FY 2016 (March 31, 2016).  However, Toshiba did not resolve the TMSC sales process in a timely manner and found that, by early 2016, it would be almost impossible to file premerger notifications in several jurisdictions, including the United States, and receive premerger clearances in time.

To complete the acquisition before the end of FY 2016, the Complaint alleges that Toshiba and Canon Inc. (“Canon”), one of the potential bidders, devised a plan to (i) enable Canon to acquire TMSC, (ii) allow Toshiba to recognize proceeds from the sale by the end of FY 2016, and (iii) avoid filing the notification and observing the waiting period required by the HSR Act.  In March 2016, the companies completed this multi-step process as follows:

  1. Toshiba and Canon created a special purpose company, MS Holding Corporation (“MS Holding”), to use as the alleged HSR avoidance device.
  2. Toshiba rearranged the corporate ownership structure of TMSC by creating (i) new classes of voting shares, (ii) a single non-voting share with rights custom-made for Canon, and (iii) options convertible to ordinary shares.
  3. Toshiba sold TMSC’s non-voting share and newly created options to Canon for $6.1 billion while simultaneously transferring TMSC’s voting shares to MS Holding for a nominal payment of $900.
  4. Canon later obtained formal control of TMSC’s voting shares by exercising its options in December 2016.

The Complaint concluded that the companies were hiding the “true nature of the acquisition” because Canon, and not MS Holding, (i) bore the risks/benefits of TMSC and (ii) became the beneficial owner of TMSC in March 2016 when it paid Toshiba $6.1 billion.

According to the Complaint, the scheme devised by Toshiba and Canon “had no purpose” other than to complete the sale of TMSC prior to March 31, 2016, and avoid the HSR Act’s waiting period requirements.  The Complaint asked the Court to assess each Defendant a civil penalty of at least $6,360,000.

According to the proposed Final Judgement, each Defendant will pay a civil penalty of $2.5 million.  The settlement also requires Defendants to establish and maintain a compliance program to address the alleged violations and comply with inspection and reporting requirements, among other imposed obligations.

Why does this matter?

Unlike most HSR penalty cases, this one did not allege a mistaken filing analysis but rather an alleged HSR Rule 801.90 (“Transactions or devices for avoidance”) scheme.  A few notable takeaways:

  • Investment funds sometimes structure funds such that voting rights are given to the fund manager and economic rights given to the investors. This case stands for the proposition that, in such instances, the FTC will look through the formal division of voting/nonvoting securities to the substance of who has beneficial ownership of the shares (risk of gain and loss, etc.).
  • Although the statute says that “no person shall acquire” voting securities or assets without first making the required filing and observing the appropriate waiting period, the government here obtained voluntary civil penalties from the seller as well as from the buyer. When analyzing which party bears the risk of not filing HSR for a transaction, this case may be evidence that both sides bear the risk equally, at least in an 801.90 context.
  • Also note that, although the Complaint asks the court to assess each defendant a civil penalty of “at least $6,360,000,” the government accepted a settlement of $2.5 million each. Given the parties’ apparent decision that paying a potential civil penalty for not fiing an HSR notification was an acceptable cost of doing business, it seems that, with a fine of less than 1% of the $6.1 billion deal value, the regulators may be encouraging rather than discouraging such risk assessments despite having brought this case.

What happens next?

Companies and individuals should carefully determine whether they must observe the HSR Act’s notification and waiting period requirements before consummating their transactions in order to avoid fines of up to $42,530 daily (adjusted annually).  HSR rules and filing obligations can be complex and may change through amendments to the regulations or through formal and informal interpretations issued by the FTC.  Experienced HSR counsel should be consulted to determine if an acquisition may trigger a filing requirement and, if so, if an exemption is available.

© Copyright 2019 Cadwalader, Wickersham & Taft LLP
Read more on FTC Trade Regulation on the National Law Review Antitrust & Trade Regulation page.

 

USPTO Issues Examination Guide on Trademark Applications for Cannabis and Cannabis-Related Goods and Services

On May 2, 2019, the United States Patent and Trademark Office (“USPTO”) issued Examination Guide 1-19 (“Examination Guide”), which outlines the path to registration for trademark applications covering hemp-based goods and services.  The issuance of the Examination Guide serves as a departure from the USPTO’s longstanding bar to the registration of cannabis-related marks, and signals the potential for further relaxation of the USPTO’s prohibition on federal registration of trademarks and service marks for cannabis and cannabis-related goods and services as state legalization of cannabis continues to crop up across the country.

To obtain federal registration for a mark, a mark’s use in commerce must be lawful under federal law.  See generally Trademark Manual of Examining Procedure §907.  The USPTO will not issue registrations for marks covering goods or services that violate federal law – even if such goods or services are legal at the state level.  Despite the legalization of cannabis for medical use in 33 states and the legalization of cannabis for recreational use in 10 states, cannabis has been deemed illegal by the federal government under the Controlled Substances Act (“CSA”)1.  Cannabis-related marks have therefore been ineligible for federal trademark registration.

On December 20, 2018, the Agricultural Improvement Act of 2018, better known as the 2018 Farm Bill, was signed into law.  In relevant part, the 2018 Farm Bill removed “hemp”2from the CSA’s definition of marijuana, thus removing “hemp” from the list of controlled substances under the CSA and creating an avenue for federal registration of marks covering some goods and services derived from hemp.  Now, marks covering certain hemp-derived goods and services with less than 0.3% tetrahydrocannabinol (“THC”)3 may be eligible for federal registration.  However, the USPTO will continue to refuse registration when the identified goods or services in an application involve cannabis that meets the definition of marijuana and encompass activities still prohibited under the CSA.

To assist in the prosecution of trademark applications for these newly registerable goods and services, the USPTO outlined the requirements an application must meet before it may be eligible for registration for hemp-derived goods and related services.  First, the USPTO advises that only applications covering hemp-derived goods and services with less than 0.3% THC are registerable.  Second, an application’s identification of goods for all goods derived from hemp must explicitly state that the hemp-derived goods contain less than 0.3% THC.  Third, only applications for marks covering hemp-based products and related services filed after December 20, 2018, are eligible for federal registration.  Any applications filed prior to December 20, 2018, must be amended or refiled.4.  Specifically, applicants must request the USPTO amend their filing date to December 20, 2018, or withdraw their application and submit a new one.   Notably, the USPTO will also examine applications to register service marks for compliance with the CSA and the 2018 Farm Bill; and, as such, an application’s identification of services must also specify that the involved cannabis contains less than 0.3% THC on a dry weight basis.  Moreover, there are additional requirements for applications that include services involving the cultivation or production of hemp.

Restrictions still remain on the registrability of marks for hemp and hemp-derived goods.  For example, applications to register marks covering hemp-derived foods, beverages, dietary supplements, or pet treats will still be refused as unlawful because the use of hemp in items for human or animal consumption has not yet been approved by the Food and Drug Administration (“FDA”)5.

While Examination Guide 1-19 signals the budding federal registrability of marks for certain hemp-derived goods and services, applicants should consider the stringent requirements placed on the same.  Mark owners should think critically about whether their trademarks for cannabis and cannabis-related products and services are potentially eligible for federal protection, as we expect to see a significant influx of applications covering these types of offerings in the near future.  Filing applications for eligible products and services now may help mark owners gain a foothold in what will likely be a competitive business field going forward.

1 Under the Controlled Substances Act the drug class “Marihuana” (also referred to as “cannabis” or “marijuana”) is defined as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”  21 U.S.C. §802(16).  Cannabidiol (“CBD”), a chemical constituent of the marijuana plant is included in the Controlled Substances Act’s definition of “Marihuana.”  See id.

2 Hemp is defined as “the plant Cannabis sativa L., and any other part of that plant, including the seeds thereof an all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3% on a dry weight basis.”  Agricultural Improvement Act §297A

3 THC is the main psychoactive ingredient of cannabis.

4 The USPTO takes the position that any applications filed before December 20, 2018 lacked a valid basis to support registration at the time of filing because the applied-for goods violated federal law.  See Examination Guide 1-19: Examination of Marks for Cannabis and Cannabis Related Goods and Services after Enactment of the 2018 Farm Bill.

5 The 2018 Farm Bill specifies that the FDA retains its authority to regulate goods containing cannabis and cannabis-derived compounds, and the FDA has taken the position that cannabis-infused items for human or animal consumption require the FDA’s approval before they may be sold to consumers. The FDA is conducting clinical investigations into the safety and efficacy of such products for human and animal consumption.

© 2019 Brinks Gilson Lione. All Rights Reserved.
This post was written by Virginia Wolk Marino and Emily Kappers of  Brinks Gilson & Lione
Read more USPTO & Trademark news on the National Law Review Intellectual Property page

No Soup for You!

An 11-year-old boy required to eat his homemade, gluten-free chicken sandwich outside a restaurant on a school field trip will get to take his case to trial.

The boy sued the owner of the Shields Tavern in Colonial Williamsburg for violating the Americans with Disabilities Act and Virginia law. The tavern offered to make the boy a gluten-free meal, but the boy and his father declined. The boy suffers from a serious gluten allergy, and had gotten ill from cross contamination at other restaurants. The tavern then asked the family to eat outside, citing a public health concern.

In a divided decision, the Fourth Circuit allowed the case to proceed to trial. The court found factual issues remained about whether the boy’s gluten allergy created a disability, and whether his request to eat his own food was necessary, reasonable, and would fundamentally alter the nature of the restaurant, which tries to create a historic colonial experience for visitors.

Judge J. Harvie Wilkinson III wrote a blistering dissent, accusing the court of establishing an “almost per se rule” that forces restaurants “to give up control over their most valuable asset: the food they serve.” Read the opinion here: J.D. v. Colonial Williamsburg Found., No. 18-1725 (4th Cir. May 31, 2019).

©2011-2019 Carlton Fields, P.A.
Post By David A. Karp of Carlton Fields
Read more about Disability Rights on the National Law Review Civil Rights page.

Congratulations to the Legal Sales and Service Organization Winners of 2019 Sales and Service Awards

Last week the Legal Sales and Service Organization announced the 2019 winners Sales & Service Award Winners.  The awards were presented by John Hellerman at the 16th Annual RainDance conference.  Winners were recognized in three categories:

  • Sales & Service Sales Team of the Year
  • Sales & Service Executive of the Year (small firm)
  • Sales & Service Executive of the Year (large firm)

The panel of judges included Erica Glass, Director of Global Corporate Communications and Wolters Kluwer, Chris Hummel, Director of Marketing and Business Development at Banner Witcoff and Samantha McKenna, LinkedIn Sales Navigator.  The judges looked to recognize sales, business development, and marketing professionals who spearheaded initiatives that contributed to revenue growth in law firms in 2018.

LSSO Award Barnes Thornburg

Barnes & Thornburg was named the Sales & Service Team of the Year, recognized for their “Marketing Blitz 1.0.”  In this initiative, the four-person team of Gretchen Helms, Business Development Manager, Karen Smith, Director of Communications, Susan Haag, Director of Marketing Services and Gwen Ragno, Digital Marketing Manager hit the road, visiting each of the firm’s offices to provide attorneys with training.  Topics included new approaches to business development and showcased the capabilities of the department.  The initiative was such a success, Marketing Blitz 2.0 is in the works.

 

LSSO Executive of YearBrandi Hobbs, the Director of Client Service & Strategy at Poyner Spruill was named the Sales & Service Executive of the Year in the small firm category. Poyner Spruill is a 93-attorney firm based in North Carolina, and Hobbs spearheaded a program to set strategic marketing and business development choices by focusing on “Clients as Advocates.”  Throughout the year, Hobbs developed new approaches to training and increasing efficiency in the firm, with a focus on client service and learning client’s businesses to deepen relationships.

 

LSSO Executive of the Year McGuire WoodsChristian Berger, Senior Advisor of Strategic Business Development at McGuire Woods was named the Sales & Service Executive of the Year for a large firm.  Over the past year, Berger has originated or co-originated more than 75 new client relationships and participated in more than 160 first pitch meetings.  Additionally, Berger has worked with attorneys to coach them on their own Business Development efforts, and Joe Cave, Chief Marketing and Business Development Officer says his impact on the firm is “nothing short of remarkable.”

Congratulations to all on their accomplishments!

Read more on the Business of Law on our Law Office Management Page.

USDA Removes Standard for “Jambalaya”

On May 29, 2019, the USDA Food Safety and Inspection Service (FSIS) announced in a letter that it will remove the entry for Jambalaya from the Food Standards and Labeling Policy Book (Policy Book).  The change came in response to a 2013 petition from Zatarain’s, a Louisiana-based food company owned by McCormick & Company, Inc., that requested FSIS revise the entry for Jambalaya in the Food Standards and Labeling Policy Book.  The previous Policy Book entry for Jambalaya stated “[p]roduct must contain at least 25 percent cooked ham and one other meat or seafood must be included.  A New Orleans dish involving rice and ham and usually tomatoes (shrimp or other shellfish, other meat or poultry), together with seasonings.  Must show true product name, e.g., ‘Ham and Shrimp Jambalaya.’”

Zatarain’s petition stated Jambalaya is a dish with ingredients that vary greatly, and consumers do not always expect Jambalaya to contain ham and tomatoes.  It went on to say Creole Jambalaya recipes usually have tomatoes but Cajun recipes usually do not, and some Jambalayas contain chicken and shrimp while others have sausage and onions.  The petition included Jambalaya recipes and statements from several New Orleans chefs, all of which indicated Jambalaya includes a heavy portion of rice, but the chef can choose what kind of protein to include, if any.  The petition proposed FSIS revise the Petition Book entry to say the dish can contain meat, seafood, and/or vegetables, but that it must be comprised of at least 50% rice.  The New Food Economy  published an article with more on the chefs that supported the petition and the history of Jambalaya.

Instead of revising the entry, FSIS removed it from the Policy Book entirely.  FSIS states that for a product to now be labeled as Jambalaya, it must have “amenable levels” of meat or poultry and must state the common or usual name on the label.  Removing the entry from the Policy Book is in keeping with a general movement away from standards that restrict innovation and will accommodate the many variations of Jambalaya in the marketplace, including those without any ham.  The final policy is included in the May 31, 2019 Constituent Update.

 

© 2019 Keller and Heckman LLP
Read more food and FDA news on our Biotech and Food type of law page.

U.S. Agencies Implement Latest Trump-Cuba Policy Changes

On May 30, 2019, the Office of Foreign Assets Control (OFAC) amended the Cuban Assets Control Regulations (Cuba Regulations), 31 C.F.R. Part 515 (2019), removing authorization for group people-to-people education travel to Cuba. Certain previously authorized group people-to-people education travel may continue to be authorized under a grandfathering provision that will also be added to the regulation. The revisions are effective as of June 5, 2019.

Importantly, the revocation reflects the Trump administration’s significant shift in policy towards Cuba, as the revisions implement changes restricting non-family travel first announced by National Security Advisor John Bolton in an April 17, 2019, foreign policy address. Under an earlier tightening of restrictions in 2017, OFAC had only restricted the General License for group people-to-people travel to require such travel be conducted by organizations subject to U.S. jurisdiction (see previous GT Alert, U.S. Implements President Trump’s Cuba Policy), while this latest move removes the authorization entirely.

Previously authorized group people-to-people travel will be eligible for continued authorization under the grandfathering provision if the traveler has already completed at least one travel-related transaction (such as purchasing a flight or reserving an accommodation) prior to June 5, 2019.

In conjunction with the above, the Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) license exceptions and its licensing policies to “generally prohibit non-commercial aircraft from flying to Cuba and passenger and recreational vessels from sailing to Cuba.”

The License Exception Aircraft, Vessels and Spacecraft (AVS) in EAR § 740.15 has been amended by BIS to remove private and corporate aircraft, cruise ships, sailboats, fishing boats, and other similar aircraft and vessels from eligibility for the license exception. This means that all such aircraft and vessels subject to the EAR may no longer be exported or reexported to Cuba under the AVS exception, and operators will instead need to apply for a BIS license.

The following types of aircraft and vessels remain eligible for License Exception AVS: 1) commercial aircraft operating under Air Carrier Operating Certificates and other Federal Aviation Administration certificates; 2) authorized air ambulances; and 3) cargo vessels for hire for use in transportation of separately authorized items.

Parties that intend to travel to Cuba or to provide Cuba-related transportation services should carefully review the revised regulations to determine whether the new measures impose licensing requirements or other compliance obligations. Parties with previously scheduled group people-to-people travel to Cuba may wish to check the dates of their travel-related transactions and confirm that at least one purchase was made prior to June 5, 2019.

Although these latest revisions do not affect the remittance allowances permitted under the Cuba Regulations, Ambassador Bolton specifically mentioned in the April 17 speech that new restrictions on remittances will be forthcoming. Interested parties should, therefore, expect the restrictions on remittances to be implemented in the near future.

 

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