Large Corporate Bankruptcy Filings Continue to Decrease through First Half of 2022

Most industry groups saw bankruptcy filings decline from mid-2020 pandemic highs.

New York—Following the spike in large corporate bankruptcy filings triggered by the COVID-19 pandemic, filings in 2021 and the first half of 2022 fell to levels below historical averages, according to a Cornerstone Research report released today.

The report, Trends in Large Corporate Bankruptcy and Financial Distress—Midyear 2022 Update, examines trends in Chapter 7 and Chapter 11 bankruptcy filings by companies with assets of $100 million or higher. It finds that 70 large companies filed for bankruptcy in 2021, down significantly from 155 in 2020 and below the annual average of 78 filings since 2005. In the first half of 2022, only 20 large companies filed for bankruptcy, compared to midyear totals of 43 in 1H 2021 and 89 in 1H 2020. The 20 bankruptcies in 1H 2022 were the lowest midyear total since the second half of 2014.

“U.S. government stimulus programs, low borrowing rates, and high debt forbearance helped disrupt predictions of continued growth in the number of bankruptcy filings,” said Nick Yavorsky, a report coauthor and Cornerstone Research principal. “Looking ahead, however, there are some concerns that increased corporate debt levels, rising interest rates and inflation, and a potential global recession may contribute to an increase in bankruptcy filings.”

In 2021, there were 20 “mega bankruptcies”—bankruptcy filings among companies with over $1 billion in reported assets—a substantial decline from the 60 mega bankruptcy filings in 2020. The first half of 2022 saw four Chapter 11 mega bankruptcy filings, compared to nine in the first half of 2021 and at a pace significantly lower than the annual average of 22 filings in 2005–2021.

Most industry groups saw bankruptcy filings decrease in 2021 and the first half of 2022, including those industries with the highest number of filings following the pandemic’s onset: Mining, Oil, and Gas; Retail Trade; Manufacturing; and Services.

Read the full report here.

Copyright ©2022 Cornerstone Research

On the Rise: Bicycle-Related Deaths and Injuries

In 2020preventable fatalities from bicycle accidents increased by 16%, according to the National Safety Council (NSC). The NSC also noted that over the last decade, there was a total increase of 44% in preventable bicycle-related deaths.

These figures highlight the ongoing safety crisis for cyclists on American roadways.

Bicycle-related deaths and injuries: the statistics

According to the CDC, bicyclists account for 2% of all motor vehicle crashes. Approximately 1,000 people die each year from these accidents, and 130,000 become injured. These numbers will continue to increase unless widespread measures to prioritize road safety become implemented nationwide.

We see this trend reflected in the report from the NSC, which notes an increase in preventable nonfatal injuries of 5% between 2019 and 2020. Additionally, the newest data released by the National Highway Traffic Safety Administration (NHTSA) shows that bicyclist fatalities increased again in 2021 by 5%.

In the state of New Jersey specifically, there were 30 preventable bicycle-related fatalities between 2019 and 2020. As of 2021, the number of deaths reached its highest single-year total thus far, with 27 individuals lost. Hopefully, these numbers will decrease in the coming years as legislative efforts are implemented to improve cyclist safety.

Legislation addressing the bicycle fatalities crisis

With the continual increase in motor vehicle fatalities and the increase in injuries sustained by these accidents, both state and federal legislatures have implemented new measures to address street safety.

The following legislation seeks to reduce the number of crashes and fatalities involving bicyclists, pedestrians, and others using a method of personal conveyance.

New Jersey’s Safe Passing Law

New Jersey has implemented its Safe Passing Law, laying out new driver requirements. When approaching someone using a method of personal conveyance such as a bicycle, electric scooter, or a pedestrian, drivers must do the following:

  1. Move over one lane to allow for extra space while passing.
  2. If moving over one lane is not possible, drivers must allow for four feet of space while approaching and passing.
  3. If neither moving nor allowing four feet of space is possible without violating traffic laws, drivers must reduce the vehicle’s speed to 25 mph and be prepared to stop.

Drivers who violate New Jersey’s Safe Passing Law will incur a $100 fine if the violation does not result in personal injury. However, they will incur two motor vehicle penalty points, and the fine will be $500 if the offense results in bodily injury to pedestrians, cyclists, or others using a method of personal conveyance.

The Bipartisan Infrastructure Law

The Bipartisan Infrastructure Law signed by President Biden on November 15th, 2021, authorizes up to $550B of funding between 2022 and 2026 to invest in America’s infrastructure, including support for safety improvements on our roads.

Safe Streets and Roads for All Program

The Safe Streets and Roads for All Program (SS4A) is a new grant program included in the Bipartisan Infrastructure Law that allocates $6B in funding over the next five years. The program seeks to fund local efforts to reduce roadway crashes and fatalities.

Eligible applicants for the SS4A grant include:

  • Metropolitan planning organizations
  • Political subdivisions of a State
  • Members of a federally recognized Tribal government
  • Multi-jurisdictional groups of the entities above

Also, according to the Federal High Administration, the use of SS4A funds must only be used for:

  • Development of a comprehensive safety action plan
  • Planning, designing, and developing activities for initiatives identified in the safety action plans
  • Implementing the projects and strategies identified in the safety action plan.
COPYRIGHT © 2022, STARK & STARK

A Paralegal’s Guide to Legal Calendar Management

Law firms of all sizes are increasingly relying on legal technology to address their day-to-day responsibilities. From family law to criminal law to personal injury law, law practice management software can help law firms run smoothly and efficiently.

The benefits of this legal technology aren’t limited to lawyers — it extends to the paralegals they work closely with.

The demand for paralegals is growing at an average of 12% each year, and paralegal technology can be used to support their efficiency and workflows. Many of the manual tasks that paralegals do, such as creating, organizing, and filing court documents, can be automated to free time to focus on more critical tasks.

What Do Paralegals Do?

Working under the supervision of an attorney, a paralegal’s work is merged with and used as part of the attorney’s work for the client. Paralegals cannot give legal advice or perform any legal duties that fall under the scope of the licensed attorney, and they must be clear in their non-lawyer status with clients and the public.

The typical duties of a paralegal may include:

  • Conducting client interviews and maintaining client contact

  • Locating and interviewing witnesses

  • Conducting investigations and statistical and documentary research

  • Performing legal research

  • Drafting legal documents, correspondence, and pleadings

  • Summarizing depositions, interrogatories, and testimony

  • Attending executions of wills, real estate closings, depositions, court or administrative hearings, and trials with the attorney

  • Authoring and signing correspondence, as long as the paralegal status is clearly indicated and does not contain independent legal advice or opinions.

In a law firm, a paralegal’s time for legal work — not clerical or administrative work — may be billed to clients the same way as an attorney’s time, but at a lower hourly rate.

The paralegal profession originated in law firms, but now, paralegals may be employed by government organizations, banks, insurance companies, and healthcare providers.

Aside from basic technology tools for sending emails, making calls, or creating documents, there are resources specifically designed for paralegal work. Some of these include:

  • Case management software: One of the responsibilities of a paralegal is helping firms track client case information. Case management software supports paralegals and other staff to collaborate on cases in real time.

  • Billing software: Client billing is a time-consuming process at the end of the billing period. Paralegals may use billing software to help automate bill generation, collection, and review. Online billing allows clients to receive bills directly and gets the firm paid faster.

  • Client intake software: With manual client intake, clients fill out paperwork and the information must be transcribed digitally. This process is inefficient and error-prone, even with a fillable PDF. Automated client intake technology captures vital details for paralegals, and forms can be shared with a link. The information can be synced with other technologies to avoid duplicate data entry.

  • eSignature software: Signatures are required for most legal documents. Instead of hand-signing and scanning documents, e-signature technology allows paralegals to collect, sign, and store documents with a click of a button.

Paralegals may use some or all of these legal technologies, depending on the size of the firm and its practice areas.

Calendar management is the systematic process of organizing tasks, meetings, and events with the goal of maximizing the return on investment for the time put in. The work can be time-consuming, but it’s essential to the function of the firm.

A well-managed calendar should support attorneys to ensure success. Calendar management has the power to make or break the attorney’s daily workflow and long-term success, which is why it’s one of the most important skills for a paralegal to perform effectively.

Legal calendar management is a resource that manages deadlines, meetings, and events in a centralized location. Paralegals, attorneys, and other staff can have shared access and individual alerts or notifications to ensure that crucial tasks never fall through the cracks.

Prior to digital legal calendar management, attorneys had to calculate deadlines manually — a time-consuming and error-prone process. Legal calendar management automatically calculates deadlines to expedite the process and ensure accuracy.

With automated workflows, legal calendar management allows legal professionals to build workflows for each type of case or practice area of the firm.

For busy professionals juggling multiple responsibilities and clients, this ensures that important deadlines are not missed.

Just like you would schedule a meeting or task, paralegals should block focus time to manage and organize their calendars. Use these best practices to simplify how you manage your calendar.

Use a Coding System

Color coding creates an organizational schematic for the calendar. For example, using colors for different categories like client, internal, recurring, reminder, and travel helps everyone quickly identify the tasks that are relevant.

Implement a Centralized, Firm-Wide Calendar

Law firms should have a centralized calendar that’s used throughout the firm and managed by an experienced paralegal. This ensures that the firm staff has access to crucial information and deadlines from anywhere.

The calendar should be flexible and allow for different departments to toggle their view of desired information.

Legal calendars have a lot of moving parts that may involve multiple parties. This is why it’s important to create guidelines or rules for everyone in the firm when updating the calendar. For example, who submits case information? Who verifies the deadlines and completes follow-ups?

Incorporating this information in your firm’s workflows will ensure all staff members understand what they’re responsible for, and when. This process should be standardized, to alleviate bottlenecks or help with onboarding and training new staff.

Get The Entire Firm On Board

A new process takes time to implement and may come with learning curves. However, an efficient, organized legal calendar can’t be accomplished without buy-in across the firm.

There can be friction among staff when implementing new technology, especially if the firm has been more traditional. Take a top-down approach that begins with senior partners and managers. They can take the lead to bring everyone on board and get them excited about the capabilities of the new technology. No one likes change, but preparing the team can reduce friction and make the implementation process more efficient.

But remember, the best technology in the world is still just technology. It’s up to your firm and staff to use it to its fullest. Establishing clear roles and responsibilities for leaders and staff, providing training, and both giving and receiving feedback ensure that the legal calendar management software’s features and tools are used appropriately for your firm’s needs.

© Copyright 2022 PracticePanther

Update Alert on Mickelson v. PGA Tour, Inc.

On August 16, 2022, we prepared an alert discussing Mickelson v. PGA Tour, Inc. and the claims made by suspended PGA Tour players (“Player Plaintiffs”) against PGA Tour, Inc. (“Tour.”) Quite a bit has transpired in the past three weeks both in and out of the courtroom. This alert highlights new developments that stem from an amended complaint that was filed in the US District Court, Northern District of California on August 26, 2022 (the “Amended Complaint.”)

The Amended Complaint can be found here and the original alert can be found here.

The Amended Complaint removes several Player-Plaintiffs listed as plaintiffs in the original complaint. Originally, the Player Plaintiffs were comprised of the following eleven golfers: Abraham Ancer, Bryson DeChambeau, Taylor Gooch, Matt Jones, Jason Kokrak, Phil Mickelson, Carlos Ortiz, Pat Perez, Ian Poulter, Hudson Swafford, and Peter Uihlein. Per the Amended Complaint, four of the original Plaintiff Players have been removed as plaintiffs, namely: Abraham Ancer, Jason Kokrak, Carlos Ortiz, and Pat Perez.[1] As a result, only seven of the eleven original Player Plaintiffs remain as Player Plaintiffs.

Perhaps the most significant development in the case is that LIV Golf has been added as a Plaintiff in the Amended Complaint. The Amended Complaint generally reiterates allegations made by the Player Plaintiffs (together with LIV Golf, collectively, the “Plaintiffs”) in the original complaint and incorporates LIV Golf’s alleged harm, mainly, that the Tour’s efforts made to prevent LIV Golf’s entry into the elite professional golf market forced LIV Golf to delay and restructure its 2022 launch plans and required LIV Golf “to pay excessively higher guaranteed payments to recruit a number of marquee players than would be required in a competitive market.”

Three more claims were added to the Amended Complaint, for a total of eight claims brought by the Plaintiffs. The first new claim alleges that Tour has violated Section 2 of the Sherman Antitrust Act by monopolizing the market for promotion of elite professional golf events (which is in addition to the Section 2 claim in the original complaint that alleges that the Tour maintains a monopoly on elite event services.) In addition to the now three antitrust claims brought in the Amended Complaint, LIV Golf also brought separate tortious interference claims of contractual relationships and prospective business relationships. The antitrust claims and the tortious interference claims are based on the premise that the Tour’s exclusionary actions: (i) prevent competition for the promotion of golf entertainment among stakeholders, such as broadcasters, players (via the Media Rights Regulation), vendors, sponsors, advertisers, partners, and agencies, and (ii) interfere with LIV Golf’s ability to negotiate and enter into contracts with those stakeholders.

Key Observations

Although more than one-third of the original Player Plaintiffs have withdrawn from Mickelson v. PGA Tour, Inc., the addition of LIV Golf as a plaintiff elevates the lawsuit because it brings the very public rivalry between the Tour and LIV Golf to the courtroom. The circumstances surrounding the case are also rapidly evolving. Since the order denying Player Plaintiffs Talor Gooch, Hudson Swafford, and Matt Jones’s motion for temporary restraining order (“TRO”) issued on August 9, 2022, six Tour members (most notably world number 2 Cameron Smith) have joined LIV Golf, which amounts to nearly half of the major winners since 2016 and 26 of the world’s top 100 golfers that have now signed with LIV Golf. In addition, the Tour announced various rule changes for the 2023 PGA Tour season, including increased purse winnings, bonus pools, and elevated events. It remains to be seen whether these circumstances will materially alter the arguments made throughout the TRO proceedings.

The tentative date to hear dispositive motions (such as summary judgment) has been scheduled for July 23, 2023, and the jury trial date is expected to begin on January 8, 2024.


FOOTNOTES

[1] Pat Perez was the only player who directly provided the reason for his withdrawal: “I didn’t really think it through… I did it to back our guys,” he reportedly said. He also said that he does not have “ill will” towards the Tour and emphasized his content of playing for LIV Golf.

© 2022 ArentFox Schiff LLP

The SEC Remains in Search of and Is Looking for Finders

Much has been written on the topic of finders and arrangers of securities transactions, including when a person or entity acting as a finder (i.e., someone who merely makes an introduction) has crossed the line and engaged in activities or conduct that requires registration as a broker-dealer. Shortly before the end of Jay Clayton’s term as Chairman of the Securities and Exchange Commission (SEC), he issued a proposed order providing an exemption from broker-dealer registration requirements for certain “finders” who limit their activities in accordance with the conditions set forth in the proposed order.1 Ultimately, the proposal was not adopted. Today, finders and unregistered securities transaction activity continue to be on the SEC’s radar. The states also closely regulate unregistered securities activities.

Recently, the SEC brought several actions in the federal courts against unregistered finders, confirming that the activity of unregistered persons and entities participating in capital raising remains squarely on the SEC agenda. In SEC v. Sky Group USA, LLC, et al.,2 the SEC brought suit against Sky Group, a payday loan firm, and four of its employees in the US District Court for the Southern District of Florida, alleging numerous violations of the federal securities laws arising out of a Ponzi scheme in which sales agents sold Sky Group securities to retail investors, collecting millions of dollars in commissions on their sales, even though the sales agents were not registered as broker-dealers. The SEC found indicia of activities requiring registration because, among other actions, the sales agents engaged in the sale of securities in the form of unregistered promissory notes and “earned a commission of one percent of each dollar the investors they recruited invested in the [promissory notes].” Many of the more than 500 alleged victims were low-income members of the South Florida Venezuelan-American community.

The allegations in the complaint are salacious and include charges of fraudulently selling $25 million of unregistered promissory notes and misappropriating at least $2.9 million of investor funds for personal use, “several hundred thousand dollars” of which were used to pay for a wedding of one of the defendants at a chateau on the French Riviera. The complaint alleges that additional amounts were used to pay personal credit card debt of one of the principals and diverted to friends and relatives for “no apparent legitimate business purpose.” The relief requested in the SEC’s complaint includes permanent injunctions, disgorgement plus prejudgment interest, civil penalties and an officer and director bar against one of the defendants. Although it appears that there was a flurry of early motion practice after the complaint was filed, the defendants consented to entry of a final judgment on June 29, 2022, which includes disgorgement, interest and civil penalties totaling $39,288,990. The other related defendants also consented to entries of final judgement resulting in disgorgement, interest and civil penalties totaling $8,391,676, and a permanent injunction and officer and director bar against one of the defendants.

In SEC v. Richard Eden, et al.,3 the SEC brought suit against Richard Eden and an affiliated company in the US District Court for the Central District of California, alleging that Eden violated the federal securities laws by engaging in conduct that requires registration with a qualified broker-dealer. The complaint alleges that Eden is a recidivist and the conduct at issue in the present lawsuit occurred while Eden was subject to a previously imposed associational bar arising from his participation in multiple unregistered securities offerings. According to the complaint, Eden started as an “opener” and eventually morphed into a “finder/closer” role. The SEC alleges that Eden engaged in broker-dealer activity requiring registration because he was “responsible for both identifying potential investors and attempting to secure their investments in the [offering],” and was paid on a success fee basis. The relief requested includes a permanent injunction restraining Eden and his affiliated company from soliciting any person or entity to purchase or sell any security, disgorgement and civil penalties. As of this writing, the defendants have yet to file answers to the complaint.

It is not surprising that the factual allegations in these cases would attract regulatory attention. The fact that the SEC remains vigilant in its monitoring of firms and individuals engaged in capital raising requires firms and agents to learn the rules and stay within the permissible boundaries. In addition, they must be mindful of the less-than-crystal clear regulatory guidance on unregistered finders, and more specifically, at what point is a person or entity “engaged in the business of effecting transactions in securities for the account of others.” Persons in this business must understand that no-action letters in this subject area are fact-specific and often tailored to narrow and unique fact patterns. Finders in violation of broker-dealer registration requirements may be subject to severe penalties under federal securities laws. Courts and the SEC have looked to certain factors when determining whether a finder has violated the federal securities laws by failing to register as a broker-dealer. Each determination is very fact-specific, but in general, the SEC will consider:

  • Does the person’s compensation depend on the outcome or size of the transaction (i.e., transaction-based compensation)?
  • Does the person participate in important parts of a securities transaction, including solicitation, negotiation or execution of the transaction or assistance in structuring payments?
  • Does the person actively engage in the marketing of the securities?
  • Does the person give advice on the investment’s structure or suitability?

1 Notice of Proposed Exemptive Order Granting Conditional Exemption from the Broker Registration Requirements of Section 15(a) of the Securities Exchange Act of 1934 for Certain Activities of Finders, Exchange Act Release No. 34-90112 (Oct. 7, 2020) (available here).

SEC v. Sky Group USA, LLC, et al., SEC Docket No. 21-cv-23443 (Sept. 27, 2021), https://www.sec.gov/litigation/complaints/2021/comp25234.pdf.

SEC v. Richard Eden, et al., SEC Docket No. 22-cv-04833 (July 14, 2022), https://www.sec.gov/litigation/complaints/2022/comp25444.pdf.

©2022 Katten Muchin Rosenman LLP

Practical and Legal Considerations for Extending Cash Runway in a Changing Economy

The funding environment for emerging companies has fundamentally shifted in 2022 for both venture capital and IPOs, particularly after a banner year in 2021. Whether these headwinds suggest significant economic changes or a return to previous valuation levels, companies need to be realistic about adapting their business processes to ensure they have sufficient cash runway to succeed through the next 2-3 years.

This article provides a comprehensive set of tactics that can be used to extend cash runway, both on the revenue/funding and cost side. It also addresses areas of liability for companies and their directors that can emerge as companies change business behaviors during periods of reduced liquidity.

Ways to Improve and Extend Cash Runway

Understanding Your Cash Runway

Cash runway refers to the number of months a company can continue operations before it runs out of money. The runway can be extended by increasing revenue or raising capital, but in a down economy, people have less disposable income and corporations are more conservative with their funds. Therefore companies should instead focus on cutting operating costs to ensure their cash can sustain over longer periods.

As a starting point, companies can evaluate their business models to determine expected cash runway based on factors such as how valuations are currently being determined, total cash available, burn rate, and revenue projections. This will help guide the actions to pursue by answering questions such as:

  1. Is the company currently profitable?
  2. Will the company be profitable with expected revenue growth even if no more outside funding is brought in?
  3. Is there enough cash runway to demonstrate results sufficient to raise the next round at an appropriate valuation?

Even if companies expect to have sufficient cash runway to make it through a potential economic downturn, tactics such as reducing or minimizing growth in headcount, advertising spend, etc. can be implemented as part of a holistic strategy to stay lean while focusing on the fundamentals of business model/product-market fit.

Examining Alternative Sources of Financing

Even though traditional venture capital and IPO financing options have become more difficult to achieve with desired valuations, companies still have various other options to increase funding and extend runway. Our colleagues provided an excellent analysis of many of these options, which are highlighted in the discussion below.

Expanding Your Investor Base to Fund Cash Flow Needs

The goal is to survive now, excel later; and companies should be open to lower valuations in the short term. This can create flexibility to circle back with investors who may have been open to an earlier round but not at the specific terms at that time. Of course, to have a more productive discussion, it will be helpful to explain to these investors how the business model has been adapted for the current environment in order to demonstrate that the new valuation is tied to clear milestones and future success.

Strategic investors and other corporate investors can also be helpful, acting as untapped resources or collaborators to help drive forward milestone achievements. Companies should understand how their business model fits with the investor’s customer base, and use the relationship to improve their overall position with investors and customers to increase both funding and revenue to extend runway.1

If the next step for a company is to IPO, consider crossover or other hybrid investors, understanding that much of the cash deployment in 2022 is slowing down.

Exploring Venture Debt

If a company has previously received venture funding, venture debt can be a useful tool to bridge forward to future funding or milestones. Venture debt is essentially a loan designed for early stage, high growth startups who have already secured venture financing. It is effective for targeting growth over profitability, and should be used in a deliberate manner to achieve specific goals. The typical 3-5 year timeline for venture debt can fit well with the goal of extending cash runway beyond a currently expected downturn.

Receivables/Revenue-Based Financing and Cash Up Front on Multi-Year Contracts

Where companies have revenue streams from customers — especially consistent, recurring revenue — this can be used in various ways to increase short-term funds, such as through receivables financing or cash up front on long-term contracts. However, companies should take such actions with the understanding that future investors may perceive the business model differently when the recurring revenue is being used for these purposes rather than typical investment in growth.

Receivable/revenue-based financing allows for borrowing against the asset value represented by revenue streams and takes multiple forms, including invoice discounting and factoring. When evaluating these options, companies should make sure that the terms of the deal make sense with runway extension goals and consider how consistent current revenue streams are expected to be over the deal term. In addition, companies should be aware of how customers may perceive the idea of their invoices being used for financing and be prepared for any negative consequences from such perceptions.

Revenue-based financing is a relatively new financing model, so companies should be more proactive in structuring deals. These financings can be particularly useful for Software-as-a-Service (SaaS) and other recurring revenue companies because they can “securitize the revenue being generated by a company and then lend capital against that theoretical security.”2

Cash up front on multi-year contracts improves the company’s cash position, and can help expand the base where customers have sufficient capital to deliver up front with more favorable pricing. As a practical matter, these arrangements may result in more resources devoted to servicing customers and reduce the stability represented by recurring revenue, and so should be implemented in a manner that remains aligned with overall goal of improving product-market fit over the course of the extended runway.

Shared Earning Agreements

A shared earning agreement is an agreement between investors and founders that entitles investors to future earnings of the company, and often allow investors to capture a share of founders’ earnings. These may be well suited for relatively early stage companies that plan to focus on profitability rather than growth, due to the nature of prioritizing growth in the latter.

Government Loans, Grants, and Tax Credits

U.S. Small Business Administration (SBA) loans and grants can be helpful, particularly in the short term. SBA loans generally have favorable financing terms, and together with grants can help companies direct resources to specific business goals including capital expenditures that may be needed to reach the next milestone. Similarly, tax credits, including R&D tax credits, should be considered whenever applicable as an easy way to offset the costs.

Customer Payments

Customers can be a lifeline for companies during an economic downturn, with the prioritization of current customers one way companies can maintain control over their cash flow. Regular checks of Accounts Receivable will ensure that customers are making their payments promptly according to their contracts. While this can be time-consuming and repetitive, automating Accounts Receivable can streamline tasks such as approving invoices and receiving payments from customers to create a quicker process. Maintenance of Accounts Receivable provides a consistent flow of cash, which in turn extends runway.

To increase immediate cash flow companies should consider requiring longer contracts to be paid in full upon delivery, allowing the company to collect cash up front and add certainty to revenue over time. This may be hard to come by as customers are also affected by the economic downturn, but incentivizing payments by offering discounts can offset reluctance. Customers are often concerned with locking in a company’s services or product and saving on cost, with discounts serving as an easy solution. While they can create a steady cash flow, it may not be sustainable for longer cash runways. Despite their attractive value, companies should use care when offering discounts for early payments. Discounts result in lower payments than initially agreed upon, so companies should consider how long of a runway they require and whether the discounted price can sustain a runway of such length.

Vendor Payments

One area where companies can strategize and cut costs is vendor payments. By delaying payments to vendors, companies can temporarily preserve cash balance and extend cash runway. Companies must review their vendor agreements to evaluate the potential practical and legal ramifications of this strategy. If the vendor agreements contain incentives for early payments or penalties for late payments, then such strategy should not be employed. Rather, companies can try to negotiate with vendors for an updated, extended repayment schedule that permits the company to hold on to their cash for longer. Alternatively, companies can negotiate with vendors for delayed payments without penalty. Often vendors would prefer to compromise rather than lose out on customers, especially in a down economy.

Lastly, companies can seek out vendors who are willing to accept products and services as the form of payment as opposed to cash. Because the calculation for cash runway only takes into account actual cash that companies have on hand, products and services they provide do not factor into the calculation. As such, companies can exchange products and services for the products and services that their vendors provide, thereby reserving their cash and extending their cash runway.

Bank Covenants

In exercising the various strategies above, it is important to be mindful of your existing bank covenants if your company has a lending facility in place. There are often covenants restricting the amount of debt a borrower can carry, requiring the maintenance of a certain level of cash flow, and cross default provisions automatically defaulting a borrower if it defaults under separate agreements with third parties. Understanding your bank covenants and default provisions will help you to stay out of default with your lender and avoid an early call on your loan and resulting drain on you cash position.

Employee Considerations

As discussed extensively in our first article Employment Dos and Don’ts When Implementing Workforce Reductionsthe possibility of an economic downturn not only will have an impact on your customer base, but your workforce as well. Employees desire stability, and the below options can help keep your employees engaged.

Providing Equity as a Substitute for Additional Compensation.

Employees might come to expect cash bonuses and pay raises throughout their tenure with an employer; in a more difficult economic period this may further strain a business’s cash flow. One alternative to such cash-based payments is the granting of equity, such as options or restricted stock. This type of compensation affords employees the prospect of long-term appreciation in value and promotes talent retention, while preserving capital in the immediate term. Further, to the employee holding equity is to have “skin in the game” – the employee now has an ownership stake in the company and their work takes on increasing importance to the success of the company.

To be sure, the company’s management and principal owners should consider how much control they are ceding to these new minority equity holders. The company must also ensure such equity issuances comply with securities laws – including by structuring the offering to fit within an exemption from registration of the offering. Additionally, if a downturn in the company’s business results in a drop in the value of the equity being offered, the company should consider conducting a new 409A valuation. Doing so may set a lower exercise price for existing options, thus reducing the eventual cost to employees to exercise their options and furnishing additional, material compensation to employees without further burdening cash flow.

Transitioning Select Employees to Part-Time.

Paying the salaries of employees can be a major burden on a business’s cash flow, and yet one should be wary of resorting to laying off employees to conserve cash flow in a downturn. On the other hand, if a business were to miss a payroll its officers and directors could face personal liability for unpaid wages. One means of reducing a business’s wage commitments while retaining (and paying) existing employees is to transition certain employees to part-time status. In addition to producing immediate cash flow benefits, this strategy enables a business to retain key talent and avoid the cost of replacing the employees in the future. However, this transition to part-time employees comes with important considerations.

Part-time employees are often eligible for overtime pay and must receive the higher of the federal or state minimum hourly wage. And if transitioned employees are subject to restrictive covenants, such as a non-competition agreement, they might argue their change in status should release them from such restrictions. Particularly since the COVID-19 pandemic, courts have shown reluctance to enforce non-competes in the context of similar changes in work status when the provision is unreasonable or enforcement is against the public interest.

Director Liability in Insolvency

Insolvency and Duties to Creditors

There may be circumstances where insolvency is the only plausible result. A corporation has fiduciary duties to stockholders when solvent, but when a corporation becomes insolvent it additionally owes such duties to creditors. When insolvent, a corporation’s fiduciary duties do not shift from stockholders to creditors, but expand to encompass all of the corporation’s residual claimants, which include creditors. Courts define “insolvency” as the point at which a corporation is unable to pay its debts as they become due in the ordinary course of business, but the “zone of insolvency” occurs some time before then. There is no clear line delineating when a solvent company enters the zone of insolvency, but fiduciaries should assume they are in this zone if (1) the corporation’s liabilities exceed its assets, (2) the corporation is unable to pay its debts as they become due, or (3) the corporation faces an unreasonable risk of insolvency.

Multiple courts have held that upon reaching the “zone of insolvency,” a corporation has fiduciary duties to creditors. However, in 2007 the Delaware Supreme Court held that there is no change in fiduciary duties for a corporation upon transitioning from “solvent” to the “zone of insolvency.” Under this precedent, creditors do not have standing to pursue derivative breach of fiduciary duty claims against the corporation until it is actually insolvent. Once the corporation is insolvent, however, creditors can bring claims such as for fraudulent transfers of assets and for failure to pursue valid claims, including those against a corporation’s own directors and officers. To be sure, the Delaware Court of Chancery clarified that a corporation’s directors cannot be held liable for “continuing to operate [an] insolvent entity in the good faith belief that they may achieve profitability, even if their decisions ultimately lead to greater losses for creditors,” along with other caveats to the general fiduciary duty rule. Still, in light of the ambiguity in case law on the subject, a corporation ought to proceed carefully and understand its potential duties when approaching and reaching insolvency.


1 Diamond, Brandee and Lehot, Louis, Is it Time to Consider Alternative Financing Strategies?, Foley & Lardner LLP (July 18, 2022)

2 Rush, Thomas, Revenue-based financing: The next step for private equity and early-stage investment, TechCrunch (January 6, 2021)

© 2022 Foley & Lardner LLP

DHS May Make Form I-9 Flexibility a Fixture

The Department of Homeland Security (DHS) announced it is considering changes to the Form I-9 documentation examination procedures. As human resources teams know, the remote workplace that became common during the COVID-19 pandemic made an already complicated I-9 process a logistical nightmare. With the U.S. government’s declaration of a national emergency due to the COVID-19 pandemic, DHS and Immigration and Customs Enforcement (ICE) announced certain flexibilities in March 2020 that suspended the requirement of in-person review of I-9 documents when a company was operating remotely due to COVID-19. Those flexibilities have been extended numerous times and are currently set to expire Oct. 31, 2022.

While DHS says it is considering making these temporary flexibilities permanent, the Notice of Proposed Rule Making (NPRM) published last month does not seek to do so. Instead, the NPRM seeks to validate the authority of the DHS secretary to enact flexibilities, offer alternative options, and/or implement a pilot program to evaluate existing and additional alternative I-9 procedures for some or all employers. DHS recognizes that more and more employers are utilizing telework and remote work for their employees and that requiring in-person review of I-9 documents is no longer consistent with work patterns of many businesses.

Some of the more notable possible changes to the I-9 process described in the NPRM include requiring employers to note on the Form I-9 which of the alternative procedures they used; requiring employers to retain copies of I-9 documents; requiring online training on fraudulent document and/or anti-discrimination training for employers who wish to utilize the alternative procedures; and limiting eligibility to use the alternative procedures to employers that utilize E-Verify, the government’s online employment verification system.

Comments to the NPRM are due on or before Oct. 17, 2022.

©2022 Greenberg Traurig, LLP. All rights reserved.

Speaker Pelosi Expresses Concerns With Federal Privacy Bill’s Preemption Provision

On Thursday, House Speaker Nancy Pelosi expressed concerns with certain features of the American Data Privacy and Protection Act (“ADPPA”) and its broad preemption provision, which as currently drafted would override the California Consumer Privacy Act (“CCPA”) and its subsequent voter- approved amendments.  The ADPPA was favorably reported by the House Committee on Energy and Commerce in July by a vote of 53-2.  The bill has not yet been scheduled for a vote on the House floor. Speaker Pelosi “commended” the Energy and Commerce Committee for its efforts, while also praising California Democrats for having “won the right for consumers for the first time to be able to seek damages in court for violations of their privacy rights.”  Speaker Pelosi noted that California leads the nation in protecting consumer privacy and it was “imperative that California continues offering and enforcing the nation’s strongest privacy rights.”

Speaker Pelosi stated that she and others would be working with Chairman Frank Pallone (D-NJ) to address concerns related to preserving  California privacy laws.  Although Speaker Pelosi’s comments cast doubt on the future of the ADPPA, we continue to believe that it will clear the House. We anticipate only modest tweaks to the preemption provision, which must be acceptable to the Republican leadership of the committee for the bill to move forward. As Speaker Pelosi noted, the bill contains a private right of action for consumers—the single most important provision to Republicans in return for strong preemption language. After more than a decade of effort, the Democratic leadership of the House will be hard pressed to let the perfect be the enemy of the really good.

© Copyright 2022 Squire Patton Boggs (US) LLP

DOT Proposes New Guidance For Medical Examiners To Address CBD Use By Commercial Motor Vehicle Drivers

The U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) published a proposed draft Medical Examiner’s Handbook (MEH), including updates to the Medical Advisory Criteria, in the Federal Register on August 16, 2022.  The FMCSA’s regulations provide the basic driver physical qualification standards for commercial motor vehicle (CMV) drivers, in 49 CFR 391.41 through 391.49. DOT Medical Examiners currently make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.

FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022.  The draft MEH may be viewed here.

Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying

Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.

However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).

FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.

FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.

This guidance does not impact FMCSA’s drug and alcohol testing regulations.  Use of a CBD product does not excuse a positive marijuana drug test result.

Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying

FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs).  Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.

Jackson Lewis P.C. © 2022

Legal News Reach Episode 4: The Perfect Storm: Law Firm Marketing & Business Development Budgeting with Beth Cuzzone, Global Practice Leader of Intapp

Welcome to Season 2, Episode 4 of Legal News Reach! National Law Review Managing Director Jennifer Schaller is joined by Beth Cuzzone, Global Practice Leader of Intapp. Together, they discuss the best budgeting strategies for legal marketing departments as firms emerge from the pandemic with a new set of priorities and perspectives.

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

Jennifer Schaller

This is Jennifer Schaller, and I’m the Managing Director of the National Law Review. We’ll be speaking with Beth Cuzzone, who’s the Global Practice Leader of Intapp. Beth, can you tell us a little bit about your background and what you do at Intapp?

Beth Cuzzone

Thank you for asking, Jennifer. I think it’s an important table-setting question. So I recently joined Intapp in 2022. It’s a global technology firm, and it partners with investors and advisors to help them run their businesses. And it basically follows those companies through the lifecycle of their companies, whether it’s intake or relationship management, or deal management, or billing or marketing or risk, and so many other operational functions. But my role Intapp sits in the marketing and business development corner of those companies. So as a Global Practice Leader, I’m responsible for working with a team of subject matter experts who help clients align their strategic priorities with our solutions. It’s been an interesting and challenging shift, because I spent more than 30 years of my career in the very types of companies that Intapp now helps. So it’s been an interesting and exciting and challenging change all at once. And I think it also gives me a unique lens into what we’re going to be diving into today.

Jennifer Schaller

Okay, wow, it sounds like a spot-on match here we have today. So let’s dig into it. We’re talking about law firm budgets. So for this upcoming budget cycle, for firms who are either almost done with it, or in the process, or close to wrapping it up. What’s different this year than in previous years in law firm marketing and business development departments?

Beth Cuzzone

In one word, everything. If we take a step back and look at the easy formula that law firms have used traditionally when creating their budgets, there hasn’t been a lot of secret sauce. In its simplest form, and I am oversimplifying it for illustrative purposes, but in its simplest form, law firms for years and years and years, and year over year, would take into consideration their former budget number and give it an increase that aligned with the firm’s increase in their revenue for that year. And then the real work would begin on saying, Okay, we’re going to give ourselves a 2 or 3% increase, because we increased our revenue by 8%. So we’re going to take some slice of that, and we’re going to increase what we did last year, and then they would reallocate that number. And so if it was my budget was $1,000 last year, and you know, now I’m going to increase it by 3%, it’s going to be $1,300. And now let me just play around with the line items and see where we want to spend a little more, where we want to spend a little less. Given the years that we’ve had coming up to the 2023 budget season, we had 2020, when the pandemic hit, we had 2021, where we were still experiencing the effects of that. And then in 2022 as people tried to move back into some normalcy of spend market, you know, marketing, outreach, awareness, credibility, relationships, going back into the office, that sort of thing, the budgets are a little bit all over the place. So to answer your question, why is this coming year’s budget different? It’s because you don’t have last year’s budget that you get to just reset.

The interesting thing is that I think it actually is going to provide opportunities to relook at the way you think of your budget and think a little bit about very specific line items. You know, I do think one of the places that people are going to spend a lot of time thinking about is digital marketing. And, you know, a question I had for you is, have you seen an uptick in the digital marketing spend from law firms, where we were pre-pandemic, to pandemic to where people are moving towards?

Jennifer Schaller

That’s kind of a multi-layered question. I mean, over the last five years, there’s obviously been a switch to more digital. There’s a couple of different things going on in the larger digital advertising industry. Advertising rates right now as a whole are pretty suppressed digitally. So that’s impacting us a little bit, just because the baseline is down. But if you’re in a specific niche, like the National Law Review, where you know, we very much have the traffic and the audience, there’s always going to be a demand for it. What’s going to be super interesting to see is when cookies go away. People keep talking about that, because that’s going to make the content on the website far more relevant, as opposed to having retargeting ads and things like that. But the date keeps changing on that. So, you know, we’ll let you know when we know. And related to publishing end of it, there’s been a bit of a sea change on that. There always was sort of a pushback or a stigma somewhat attached to pay-for-play publishing. But a little bit of a difference with that is, over time, most marketing professionals, especially in legal, understand that there’s costs involved in running a quality publication, if you want to have analytics, if you want to have a responsive staff who’s around to make edits, that you have to pay for that, and that, you know, if you don’t have money coming in from subscriptions, if you’re a no login website, that there’s going to be cost. So there’s been a bit of a change there. There’s more receptiveness to it. And I think maybe because law firms themselves understand what it takes to publish, they’re a little more forgiving, and understanding that we have costs too, if that makes any sense.

Beth Cuzzone

It makes complete sense. It makes complete sense. And again, there’s no direct answer to some of these complicated questions that we’re asking each other today about where people are spending and where it’s going versus where it’s been when we’ve had this pause on so many levels. And like you said, I also just think that the lens of the marketing and business development departments and law firms are really starting to appreciate that looking at digital assets as a way to create awareness and credibility is going to be a leader in their budget.

Jennifer Schaller

Well, yes, especially since events have changed and gone away. And a lot of sponsorships have changed. And given that pandemic ripple effect of live events versus sponsoring tables at events, which used to be a part of legal marketing department spends, what’s becoming more the standard for law firm, legal marketing department and business development spend, is it changed? Is it reallocating? How is that working?

Beth Cuzzone

That’s a great question. So typically–I heard somebody say once, law firms are like snowflakes, everyone is different. And I know that when I look at industry statistics that talks about the swing of spend, that has to do with you know, the percentage of revenue of law firms, that it goes anywhere from 2 or 3% to 18, 19, 20%. And the reason that they have that swing is because in some marketing and business development department budgets, they include personnel when others don’t, okay, or in some marketing and business development, department budgets, it’s all marketing, whether it’s for the HR department, or legal recruiting, or the firm, and others. Those are each very separate departments and separate budgets. So there is this huge spread across the industry. But I think for most firms, we’re going to find that there’s that 3.5 or 4% to 8% budget target of revenue. And that’s kind of where people settle in. There are outliers on both sides. And interestingly, there’s often some surprises. I find that sometimes some of the smaller, mid-sized firms have larger percentage budgets. But I think that’s because they can’t enjoy the scales of economy that larger firms can. If you’re looking at your budget, and we can talk about this in a little bit, you know, in 2020 when the pandemic started, all discretionary budget items were removed from law firms, whether it was in marketing and business development or not. So it was like, “Unless we’re contractually obligated to pay something, we’re taking it off the table.” And so now firms are getting that opportunity to rebuild it. And again, that approach and that budgeting exercise is a real opportunity for these firms to say, “What haven’t we been asking ourselves?” Or, “What haven’t we done that we’ve wanted to? What’s not in our budget? What should be or what are the opportunities out there in terms of places or people or technology or intersections that we’ve never tried before?” So I think there’s some of those questions that are happening, too.

Jennifer Schaller

Yeah, I think if anything, this is just helpful to know, to have legal marketers or even law firm administrators, or management know how to ask questions about legal marketing budgets, that there is such a wide range, but the wide range prompts people to ask the question, “What’s in that figure and what’s not?”  I’ve never really had it broken down that well before. So thank you for taking the time to spell that out. Because it’s not spelled out a lot of different places. Many people will appreciate that.

When you’re talking about law firm marketing budgets, what’s the difference between acquisition marketing and retention marketing and preparing budgets? Should law firms dedicate more resources to one or the other? Or is it some sort of blend?

Beth Cuzzone

That is a very forward-thinking question that you’re laying out there. Because I think that law firms basically had two types of buckets, if you will: they thought of it as awareness and credibility building, or relationship building, it was one of the two. And so they had some things around awareness and credibility, we talked a little bit about it earlier, you know, it’s that one to many, the website, you know, the content, the newsletters, the big events, that sort of thing. And then the relationships are kind of those one-on-ones. It’s the spending time going out and sitting down with a prospective client to learn something, or having an entertainment budget or doing some small roundtables with thought leadership, or sitting down with different decision makers at a particular client site so that you’re staying close to them. And it was a little bit all over the place. And the shift that I’m starting to see happen is that law firms are starting to break down their budgets into exactly what you said: acquisition marketing, which is, “How are we getting new clients?” versus retention marketing, which is, “how are we keeping and growing the clients that we have, or the brands that we have, or the relationships that we have?” And by doing that, they’re also starting to do account-based marketing. And they’re able to put their budgets together and say, “We’re going to spend 70, or 60, or 80% of our budget on our existing relationships, because we know that it costs six to eight time more money, resources, people budgets to get a new client than it does to keep and grow an existing one. So when you look at the scale of acquisition versus retention, retention is going to get that bigger budget. And then the acquisition is going to have a smaller wallet share of the overall budget. But within that big budget, you’re going to start that retention budget, you’re going to start to see that being broken down a little bit by account-based marketing as therefore account based budgeting. Again, this is a little bit around the corner. And this is I think what firms are going to be dealing with over the next five years of exactly being able to measure their return on objectives or their return on investments and where their money is really being spent. Because they’re going to be tying it down to very specific objectives and very specific strategies, if you will.

Jennifer Schaller

Okay, so what would be some of the areas that there would be an overlap, like between acquisition and retention marketing, would that fall in the digital area? Or where would that be?

Beth Cuzzone

That’s a perfect example, please look at what we’re talking about like a Venn diagram, right, you’ve got your acquisition, you’ve got your retention and then there’s the place where they overlay. Digital assets are a perfect example that fall into both. It’s helping you in the marketplace. And it’s helping you find your next big relationships and clients and referral sources. And those are the same assets that you can use to add value and stay close to some of your existing relationships, places where they start to separate a little bit, again, is really by account or by client, client-based marketing versus account-based marketing. And so you might have a firm where you say, we’re going to spend a lot of our travel and entertainment budget on going to each one of their offices and doing junior executive training. So that we’re aligning ourselves with the next generation of decision makers, and that’s how we want to spend our money and our time and our budget and our resources and our people on that particular client this year, sort of thing. So it all depends, again, on the strategy. And it also depends a little bit on the firm.

Jennifer Schaller

Yeah, would it vary by practice group, or just like, if you had a firm that was, you know, just intellectual property law based, would there be differences in the ratio or the mix or network?

Beth Cuzzone

That’s a great question. So there are some firms and also practice areas where there’s annuity streams, if you will, right. There’s just an ongoing, “We represent this particular finance institution on all of these sorts of loans. And, you know, we do 5, 10, 15 a year for them.” Think about if you were actually a litigator, and you were representing financial institutions where you didn’t know how many you were going to have in a year or whether you were not going to have any for two years and how they think of you and they call us when it’s about the company or they don’t call us when it’s about the company so you have to again, look at the firm, its strategy, the cadence of those open matters, the cadence of when they’re being asked to help clients and then try to align your budget and the activities in your budget around those very objectives. Does that make sense?

Jennifer Schaller

Yeah, it does. A lot of what you’re breaking down is really helpful because people throw numbers out there, but they don’t go into the details of what moves the numbers up or down, like your example of depending on if the law firm is including the expenses for HR, or including the salaries of the marketing department in there, that should make a big difference. And nobody really spells that out. So that was very helpful.

Beth Cuzzone

What kinds of trends are you seeing…there’s this nuance that’s happening now Jennifer, where there was a period of time “back in the day” where all law firms took out one-page ads in some of the biggest business-to-business publications and journals, or like yours, very, very niche, industry-specific news-related channels. And it was “we want to be top of mind” with whoever the reader is, whether it’s our peers, whether it’s our competition, whether it’s a referral source, whether it’s a potential client, whether it’s somebody on the other side of the table, and over time, that awareness campaign started to move into that content campaign. And I’d really be interested to see how are law firms maintaining that mindshare in the marketplace? What are you seeing?

Jennifer Schaller

Some big change from print, and what’s really changed–COVID was sort of terrible for the world, but in a lot of ways good for law firms and legal publishing. Because there were so many rapid developments of a legal or administrative or regulatory nature going on, there was just a lot of content to be written on and a lot of people looking for that content. So there was inherently a lot of traffic just being driven by COVID and all the related changes to it. Now that that’s leveled out a little bit, what we’re seeing from law firms is when they do their informative writing, meeting, talking about cases that happened and why that’s important to a particular industry, or new regulations that are on the horizon, what’s a little bit different is they’re starting to impose–not impose, but impart–their personality a little bit more. We’re seeing more content come in where it talks about people’s journey in the legal profession, how they balance working from home or transitioning out of working from home in a little bit more with the content. So before there was very little of that. I mean, there was some. It’s pretty prevalent now where we’ll see many law firms just have entire blogs and podcasts and a whole kind of vertical dedicated to life balance, people’s career paths, and things like that, which is a bit different than what we’ve seen before. I think it provides a good opportunity for law firms to tease out their competitive differences just by letting people know who they are, because ultimately, with law firms, they’re buying the person and their knowledge and their background. And this is kind of a more forward way of doing it than what’s been done in the past.

Beth Cuzzone

You know, it’s so interesting to hear you say that. I don’t think I really put such a fine point on it until you just mentioned it. All law firms do the same thing. For the most part, a general practice firm does the same thing as the next general practice, you know, an IP boutique does the same thing as the next IP. But how you do it, who you do it with and the culture is what your differentiator is. And you’re right, as I’m thinking a little bit about the sorts of information that I’m seeing, either the types of information or the personality in which people are writing, it really is giving firms a way to showcase their culture and who they are and their differentiator as opposed to all sounding like really smart law firms.

Jennifer Schaller

It’s that and I think it’s a little bit recruiting as well. I mean, the whole world has experienced quite a bit of turnover. Law firms have always had more turnover than other industries. So we’d have some stuff coming in where folks are interviewing their summer associates. And they’re doing that on a couple different levels. I think it plays to people who may be interested to know how a person got a summer associate position at an Am law firm, but also, you know, it’s a big hug to that person, and it shows in a recruiting sense that that law firm really cares about folks at all levels of the organization. We wouldn’t have seen that 10 years ago, so that’s just really different.

Okay, so let’s get into the fun part: budgeting tips! You’ve been doing budgets for years, you work with an organization that helps law firms kind of balance competing things for their attention and help tease out what’s probably the best bet for the firm. Do you have a few tips to share with our readers, or our readers and our listeners today, concerning law firm budgets, what to include what to not get pushed back on?

Beth Cuzzone

Yes, I think that there are a few best practices out there that law firm marketing and business development departments want to be thinking about as they’re either negotiating their budgets with firm management, or if they’re actually putting it together. We talked a little bit about the fact that historically firms have used the previous year and that budget number is a benchmark. Ironically, in 2022 law firm marketing and business development budgets increased by more than 100%. And again, it’s because in 2020, and 2021, they were decimated, it was the place where there was the most discretion in the budget, there were things like they weren’t going to be doing sponsorships, they weren’t going to be holding webinars, they weren’t going to be traveling to see clients or things–like take it all out. So then when we started to move towards this normalcy of, “let’s get back to business in 2022”, with a kinder, gentler, more softer approach, they had to increase their budgets by more than 100%. So the first thing I would say is, do not prepare your 2023 budget based on your 2022 budget, because you’re going to show that there’s already been 100% increase, and there will probably be very little wiggle room. I would also scrap 2020 and 2021. So I think one of my tips or best practices is, use 2019 as your benchmark, not 2021 or 22. For the reasons we’ve just talked about.

The other thing, you just mentioned this in the way you asked the question, is that there is a very complex ecosystem in law firms, and the marketing and business development budget is one of many competing priorities. And I think understanding that budgeting is a long-term game, not one you win every year. And so what I’m trying to say is, take a panoramic view of where the firm is, what they’re trying to accomplish, what some of their major goals are for the next year or two, look left and look right at what other operating department budgets are going to be impacted by that, and prepare your budget within the context of what’s happening. So don’t ask for the greatest budget increase among every operations department, every year. There becomes a fatigue, where it’s like, “Nope, just give them the 2%, we’re not going to listen to why they deserve more every year, year over year than every other department.” So I think walking in and being able to communicate, “We understand that lateral growth is one of our top strategic priorities, and that you’re going to be spending a lot of our budget on legal recruiting. So this year, I’ve put in some particular items and activities that will support legal recruiting, and I’ve moved my budget request from a 6% increase to a 2% increase.” And again, you can negotiate two or three years in advance, then say, “I just ask that when we’re looking at my budget in two years, or in three years that we appreciate that I’m asking for a smaller increase this year, given where we are, what we’re doing.” You know, it also goes a long way when there’s been a down year.

So, so far we’ve said, use 2019 as your benchmark, don’t ask for the greatest budget increase among every operations department every year, try to negotiate for two or three years in advance at your firm, but also negotiate two or three years in advance with your partners or vendors, depending on what you call them. You know, to be able to say, “Listen, we want to do this. And we can’t be all-in this year because our budget isn’t going to allow us, but can we negotiate an 18-month relationship with you and spread it over a 24-month period?” Negotiate a little bit! These are companies that want to partner with you. I also think it never hurts to ask and get comfortable with, again, just partnering with your vendors. That’s why I always call them partners and not vendors. Be comfortable with partnering with them and saying, “Look here are two or three things I’m trying to accomplish. And I only see one of those things in the proposal that you sent to me. Are there some things that you can put in here that are revenue neutral? Or are there ways that you can reallocate our spend and help me hit these other budget objectives?” They’ll work with you. So negotiate with management and then partner with your vendors.

I’ve been talking with a lot of firms. And another thing that I’m seeing firms really start to do is ask themselves, “Where is the lowest risk and the highest return?” and vice versa, and making sure that your budget is representing that like, “Boy, this is the lowest risk and a really good return. So we’re going to do more of this. And this is a really high risk, very questionable return. We’re going to do less of this.” And by the way, having those conversations with your management committee or your manageing partners or your executive committee about the ways that you’re looking at risk versus return, or contextually where you are in the firm’s operational churn, if you will, those sorts of things will help you in the long run.

Jennifer Schaller

It’s really great that you point out the need to let your vendors know what your goals are. It’s very challenging sometimes when people are like, “What’s the price? You know, what, what, what is your best price?” What is important to you? It’s not really a negotiating technique, we want to know where to focus to best meet your needs. And if we have no concept of what your goals are, or what you’re trying to highlight, it makes it infinitely more challenging.

This year, or any historically, are there budget items that you would suggest CMOs pay more attention to this year than in previous years or anything that’s unique about this year that they might want to highlight other than the points that you made about using 2019 as a base point versus the previous two years? Which were just weird. Is there anything else different?

Beth Cuzzone

You know, I think this is the time everybody is peeking over the horizon wondering, “Is there a downturn? Is there a recession? Is there a down year coming? What do we do?” You know, you’ve got, you’re asking yourself all of those questions. I think this is also a year, when you’re looking at your budget, to look at things that are driving efficiencies, scalability, revenue generation, right? There’s a difference between cost and investment. Make sure that your budget has a nice healthy mix of, “These are things where we want to spend money to get more money. And then these are places where we want to spend money so that we can meet an objective,” and I call them return on objectives, and return on investments. “We want to be known in this new market. We want to open up an office in Texas. And so we’re going to be spending a lot of time and money and energy and budget on really getting the word out creating some top of mind awareness in Texas.” That’s an objective, right? If it is that we really want to get a little closer to the bottom quartile of our clients in terms of revenue and say, “How can we help them with more problems than we do now? How do we take them and really try to grow the wallet share that they spend on outside counsel?” That’s a return on investment. So you know, have that healthy mix on return on investment, and return on objective.

Jennifer Schaller

Fair enough. So briefly, your firm Intapp? How do they help law firms with their budgeting process? Are there specific things that they’re set up to do to help?

Beth Cuzzone

Thank you for asking me that and for being so gracious. Because yes, I think the answer is yes. So Intapp can help law firms create insights to find revenue, find where there’s work that’s more profitable, find where, you know, there’s whitespace, and opportunities, or be able to basically measure things, and have this one source of truth in your law firm, where you’ve got all of these technologies that help all of these different operating departments that all connect, that’s why it’s called Intapp, there’s an integration to this, and they all integrate and talk to each other. And those kinds of insights can inform law firms about the kind of money that they’re spending and the kind of return that they’re getting. And it can be as simple as looking at your marketing campaign open rate for your last email, all the way to looking at some very strategic insights of “here are some spaces or places in our firm where we could be working closer with clients, or an industry where we haven’t saturated as much as we could.” So it can go from tactical to strategic, and that’s what Intapp does. That’s why it’s such an amazing company.

Jennifer Schaller

So is Intapp more process or technology based or kind of marrying the both of them when they work with law firms?

Beth Cuzzone

That’s another great question. So it’s a technology company. And I think the thing I’ve been most surprised with is the brainpower that sits in Intapp and all of the people that are there to help clients successfully deploy, or change management professionals that help you get more engagement at your firm, or help you with use cases of smarter ways to use the technology.

So Intapp sells technology that has professionals that help you with the people in the process as well. It’s a little competitive secret.

Jennifer Schaller

Sounds like a good match. As always, we appreciate Beth’s time sharing her thoughts with us and her experience and kind of the trends that she’s seeing and marrying it with the experience that she’s had over the years. Thank you very much.

Beth Cuzzone

It was so great to see you, Jennifer. So great to see you. Thank you for inviting me and be well. True North.

Conclusion

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