The National Law Forum

Life and Death of Technology: 2022

Bacteria, insects, people, civilizations, galaxies – all are born, live and pass into eternity eventually. So it goes with technologies. Some, like wheels and levers, simply evolve in an impressive millennia-long cycle. Others, like jet packs, never seem to find the popularity we expect. And many, like 8-track tapes, shine brightly (or not so brightly) for a moment and fade into obscurity.

I like to dedicate a column to this topic each year to remind us how fleeting the spotlight can be. Obsolescence is built into all of our tech, just as limited existence is the essential nature of people.

For example, classic Blackberry devices will finally die this year. Remember the “Crackberry?” – a device so addictive and omnipresent that President Obama refused to part with his Blackberry despite the security risk. Blackberry had 80 Million users in 2012. Not so much anymore.

If you still have a Blackberry phone and it is not using Android software, the company will stop supporting your product today. CNN reports that “BlackBerry (BB) has been mostly out of the phone business since 2016, but over the years it continued to license its brand to phone manufacturers.” A 5G Blackberry Android-driven device from OnwardMotion is listed as “arriving in 2021,” so we shall see if it ever arrives. The original has passed away.

When Google/Alphabet hyped its “Moonshot” factory, one of the most publicized efforts was called Loon. The Loon project involved floating giant balloons above the earth to beam internet to areas where connectivity was most difficult to achieve. Loon was started in 2012, launched its first public tests in 2013, and in 2020 began commercial deployment in Africa through Telkom Kenya. Last year Alphabet shut the doors on Loon, unable to find a sustainable and cost-effective business model. Alphabet also closed its business called Makani, which provided wind power from giant kites. This is a bad year for business models dependent on floating objects in the air.

In 2012, Indian executives launched Hike as an Indian answer to Facebook’s WhatsApp, and Hike was valued at $1.4 billion by 2016 with nearly 70 million users. Unfortunately, where Chinese technologists successfully operate WeChat as a local WhatsApp alternative, Hike disappeared from circulation with no formal explanation. WhatsApp has now solidified its near monopoly in India.

Apple killed its original Homepod this year, unable to compete with Amazon Echo and Google nest, although you can still buy a Homepod mini. LG stopped making mobile phones this year. Microsoft killed Windows 10X and Minecraft Earth. Microsoft also killed Skype for business last year. I remember a Microsoft partner saying that when Microsoft wants to enter a new market, it chooses an ally, eliminates all the other blips on their radar screen until only the ally is left, and then kills that blip too. Skype may be a good example of this strategy as it has been pushed aside to make space for Microsoft Teams, soon to be dominating the world of corporate remote video calls (if not dominant there already).

All-in-all this is not a significant list considering the upheavals in the world over the past two years. Aside from Blackberry, which keeps limping on as a brand despite the death of its original proprietary operating system, no epoch-defining technology slid from this mortal coil in 2021. So where do we go from here?

The Metaverse was famously introduced into our lives last year. Will we see the first commercial glimpses of it in 2022? Mark Zuckerberg telegraphed his intended business direction when Facebook bought Oculus Rift, producer of immersive three-dimensional world-building technology. Zuckerberg clearly hoped to drive his herd into a more addictive, all-encompassing space as soon as possible. But now, with Facebook’s flagship products serving an aging and decreasing population, with regulators/Congress prepared to slap down any attempt to buy sexy social media rivals that appeal to younger audiences, and with a dismal company track record of developing its own social media successor products, opening the Metaverse becomes a dire urgency for Facebook. I expect we will see some access portals to this new world in the coming year.

The Washington Post suggests that both Apple and Google may offer their own metaverse access portals this year. It will be interesting if these companies try to isolate their own technology in to separate sandboxes, or if they make a play for interoperability that will allow small companies to create content that can be played on every device. The Post speculates that a workplace metaverse may emerge soon: “As for the rest of us, our first steps into the metaverse will probably be for our jobs. The pandemic is pushing companies toward virtual reality for onboarding, training and meetings. As consumer tech catches up, though, the metaverse will seep out of the workplace and into our everyday lives — but don’t get too excited.” There is likely much road to be laid between here and there.

Apple’s AirTags have been around for a while, but their applications are increasing. Some of these applications are problematic. For example, car theft and stalking have been made much simpler with a tiny effective tracking device. The New York Times reports “In recent months, people have posted on TikTok, Reddit and Twitter about finding AirTags on their cars and in their belongings. There is growing concern that the devices may be abetting a new form of stalking, which privacy groups predicted could happen when Apple introduced the devices in April.” The tags are dropped in purses and bags, stuck on cars, and placed in clothing pockets of third parties. Apple has tried to address these issues by notifying iPhone holders of an unknown tracking device nearby. So, for better or worse, 2022 could be the year of Tile and AirTags.

Better drones, household robots, and a new generation of virtual reality glasses could all make an impact on our technology lives in the upcoming year. Robot technology keeps improving, but until they develop a light touch with opposable thumbs, I don’t expect household usage to explode. This also may be the year of the Smart Mirror that can raise your beauty and fashion game while you check out the results. The Capstone Smart Mirror will also look up directions while you get dressed for your date, tell you how late you are, and psych you up with your favorite music.

Apparently every year is the year of crypto and blockchain if you listen to the hype masters – and those who have financial interest in bringing more money to the technology. They have started running very expensive sports ads to drive more gullible investors into this essentially unregulated market. NFTs may turn out to become more than just speculative investments (like nearly every crypto trend), but I won’t hold my breath for it to happen.

Article By Theodore F. Claypoole of Womble Bond Dickinson (US) LLP

For more articles on cybersecurity, visit the NLRCommunications, Media & Internet section.

Canada: Upcoming Legislative Changes Taking Effect in January 2022

As we ring in the new year, there are a number of legislative changes that will take effect, impacting workplaces across Canada. Below are the significant changes taking effect by January 1, 2022.

Increase to the Federal Minimum Wage

Effective December 29, 2021, the minimum wage for the federally regulated private sector increased to $15.00 per hour. The Government of Canada announced this wage increase on April 19, 2021. According to the government, the wages of approximately 26,000 employees have increased as a result of this change. Some of the sectors impacted include:

banks;
postal and courier services;
telecommunications; and
most federal agencies.

The government will adjust the federal minimum wage every April to address inflation.

Employers in these industry groups may want to keep in mind that impacted employees earning a provincial or territorial minimum wage greater than $15.00 per hour are entitled to the higher wage rate.

British Columbia: Introduction of Five Paid Sick Days

Effective January 1, 2022, employees in British Columbia will have access to five paid sick days per year. To be eligible, employees must be covered by British Columbia’s Employment Standards Act, and they must have worked for their employers for a minimum of 90 days.

Employees will now have up to eight days of sick leave per year in total: five paid days and three unpaid days to be used for illness or injury. These days will not carry over to future years, and employers may request “reasonably sufficient proof of illness.” Though employers are entitled to request proof of illness, in some circumstances the request may not be reasonable.

The reasonableness of a request can be assessed based on:

the duration of the employee’s absence;
a pattern of absences;
the availability of the proof; and
the cost associated with the proof.

In cases where the employer’s request is not reasonable, the employee might not have to provide proof of illness.

British Columbia employers may also want to note the following:

Full-time, part-time, temporary, and casual employees are covered by the Employment Standards Act and may be eligible for these sick days.
Employees are not required to take these sick days consecutively.
Employees must be paid an average day’s pay during their sick leave. To calculate the average, employers are required to use the 30 calendar days leading up to the first sick day.

Saskatchewan: Amendments to The Saskatchewan Employment Act

On January 1, 2022, amendments to The Saskatchewan Employment Act, 2021, will take effect, which will make the following changes:

Workplace harassment, including sexual harassment, prohibitions will now protect independent contractors, students, and volunteers.
“Supervisory employees” will now have access to collective bargaining, whereas previously they were presumptively excluded from bargaining units that included employees they supervise.
Mandatory vaccination policies will need to include an option for employees to provide negative COVID-19 test results every seven days, as an alternative to vaccination.

Currently, Saskatchewan’s COVID-19 vaccination regulations allow employees to choose between providing proof of a negative COVID-19 test every seven days, or providing proof of full vaccination. These regulations apply to public employers and to provincially regulated private sector employers that voluntarily implement vaccination policies. To protect these employers from liability, legislators have added a provision to the act covering employers that have complied with the COVID-19 vaccination regulations.

Ontario: Increase to the Minimum Wage

In November 2021, the Government of Ontario announced an increase to the minimum wage effective January 1, 2022. The minimum wage increases are summarized below.

Employees	Current Hourly Wage	Proposed Hourly Wage
General minimum wage	$14.35	$15.00
Students under the age of 18	$13.50	$14.10
Homeworkers (i.e., individuals who work from their personal residences)	$15.80	$16.50
Hunting and fishing guides	$71.75 for working less than five consecutive hours in one day	$75.00 for working less than five consecutive hours in one day
Hunting and fishing guides	$143.55 for working five or more hours in one day	$150.05 for working five or more hours in one day
Liquor servers	$12.55	$15.00

Key Takeaways

As these changes take effect, employers may want to verify whether they will impact their workplaces and adjust their policies and practices accordingly. Employers that are not affected may still find it important to note the trends in Canadian employment legislation because some of these changes may be implemented in their own provinces in the near future. Specifically, both New Brunswick and Nova Scotia are set to raise their minimum wage in 2022.

Article by Stephen Shore and Gloria Ilunga with Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on Canada, visit the NLR Global section.

Two Recent Developments Promise to Shed Light on Accrual of BIPA Claims

In the aftermath of two recent appellate court decisions addressing when claims under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) accrue, it appears likely that the Illinois Supreme Court will need to provide clarity on this critical question. First, the Appellate Court of Illinois, First District, found in Watson v. Legacy Healthcare Financial Services, LLC, et al. that claims under sections 15(a) and (b) of the Act accrue with each and every capture and use of a plaintiff’s biometric identifier or information. Second, in Cothron v. White Castle System, Inc. the Seventh Circuit Court of Appeals declined to directly address the issue of when a claim under BIPA accrues, and instead has certified the question for review by the Illinois Supreme Court. While the holding in Watson provides some clarity as to when certain BIPA claims accrue, it leaves open critical questions regarding how to calculate: (i) the number of BIPA violations; and (ii) monetary damages under the Act.

The Watson v. Legacy Healthcare Financial Services, LLC, et al. Decision

Plaintiff Brandon Watson sued Legacy Healthcare Financial Services, LLC, Lincoln Park Skilled Nursing Facility, LLC, and South Loop Skilled Nursing Facility, LLC (collectively, the “Defendants”) in March 2019, alleging that the Defendants violated BIPA by scanning the fingers or hands of their respective employees, including plaintiff, for timekeeping purposes. Plaintiff alleged that the scanning violated sections 15(a) and (b) of the Act, which place both restrictions and affirmative obligations on private entities related to biometric identifiers (such as fingerprints, voiceprints, retinal scans and facial geometry) and biometric information (e.g., information based on biometric identifiers to the extent used to identify an individual):

Private entities in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for destroying the information. 740 ILCS 14/15(a).
Private entities which collect, capture, purchase, receive or otherwise obtain biometrics must first inform the subject of that fact in writing, as well as the specific purpose and length of time for which the information will be retained, and must obtain a written release executed by the subject. 740 ILCS 14/15(b).

Plaintiff alleged that he began working for at least one of the Defendants in December 2012. Because the Act contains no provision as to when claims accrue or the applicable limitations period, Defendants moved to dismiss, arguing that Plaintiff’s claims accrued on the first day the Defendants allegedly collected his biometric information and Plaintiff’s claims were thus time-barred. In response, Plaintiff argued that his suit was not time-barred because his claims accrued with each alleged capture of his biometric information that Defendants obtained without providing notice and obtaining consent. The trial court granted the Defendants’ motion to dismiss, finding that Plaintiff’s claims accrued with the initial scan of his finger or hand in December 2012. Thereafter, the trial court granted Plaintiff’s Rule 304(a) motion for an interlocutory appeal.

The Appellate Court reversed and remanded, finding that a claim under the Act accrues after “each and every capture and use of plaintiff’s fingerprint or hand scan.” In reaching this result the Appellate Court analyzed the plain language of the Act and the legislative history of the Act, and accepted as true that the Defendants captured Plaintiff’s biometric information twice per day when he clocked in and out of work.

The Cothron v. White Castle System, Inc. Decision

Plaintiff Latrina Cothron sued White Castle System, Inc. (“White Castle”) alleging that White Castle violated BIPA when it required plaintiff to scan her finger in order to access work computers. Moreover, plaintiff alleged that White Castle disclosed the scans of her fingers to its third-party vendor as part of process to authenticate the finger scan and ultimately grant access to the work computers. Based on these allegations, plaintiff asserted claims under sections 15(b) and (d) of the Act. In addition to the obligations of section 15(b), outlined above, section 15(d) prohibits a private entity from disclosing, redisclosing or otherwise disseminating biometric information without consent. 740 ILCS 14/15(d).

White Castle moved for judgment on the pleadings, arguing that the suit was untimely since plaintiff’s claims accrued in 2008 when BIPA was enacted. The trial court denied White Castle’s motion, but certified its order for immediate appeal to the Seventh Circuit. In turn, the Seventh Circuit examined the arguments of both parties and ultimately concluded that the question of when a claim accrues under BIPA is a novel question which has not yet been addressed by the Illinois Supreme Court. As a result, the Seventh Circuit stayed proceedings in the Cothron matter and certified the question of when claims accrue under BIPA to the Illinois Supreme Court.

The Rulings’ Impact on Your Business

It is likely that it will take a ruling from the Illinois Supreme Court to provide further clarity on when claims under the Act accrue. In the interim, the Watson decision will obviously impact early BIPA case evaluations. It also, however, raises at least two unrelated issues that will likely be the subject of debate and litigation going forward.

First, Watson was based on the allegations in the complaint, without the benefit of discovery and additional information regarding the operation of the finger/hand scanning device(s) utilized by the Defendants. Key to the decision is the Watson court’s conclusion that every use of the scanning device(s) results in the capture of Plaintiff’s biometric information, and the Court’s description of that capture as resulting in a permanent record. While that statement is likely based on allegations made in the complaint, it is possible, or even probable, that it is not factually accurate. Although variations exist, the scanning technology used in many biometric timekeeping devices creates only a single permanent record — from the very first scan of the individual’s finger or hand. Commonly, the later scans do not collect or store information, but only exist fleetingly as comparisons of the permanent, initial scan data. As a result, the applicability of the Watson decision may vary based on the actual operation of the scanning devices at issue in any single case.

Second, in response to Defendants’ concerns about the “ruinous” monetary damage awards that may result from the ruling in Watson, the Appellate Court went out of its way to note “that damages are discretionary[,] not mandatory” under BIPA. In so holding, the Appellate Court found that Section 20 of BIPA provides a list of possible damages, but notes that list constitutes what a “prevailing party may recover.” 740 ILCS 14/20 (emphasis added). The Appellate Court’s decision to highlight the discretionary nature of an award of monetary damages under BIPA stands in stark contrast to the position often taken by the plaintiffs’ bar. Indeed, the plaintiffs’ bar consistently asserts that the right to recover liquidated damages under BIPA is absolute given the Illinois Supreme Court’s 2019 decision in Rosenbach v. Six Flags Entm’t Corp. However, the Rosenbach decision merely found that once a plaintiff meets the basic statutory requirement of being “aggrieved,” he or she is merely “entitled to seek recovery” under Section 20. The Watson Court’s emphasis that monetary damages are discretionary under BIPA is likely to open new lines of discovery and argument regarding the calculation of damages, if any, sustained by a particular BIPA plaintiff and whether or not those damages justify the imposition of discretionary liquidated damages set forth in the Act.

Ultimately, every business should perform a critical analysis as to any business practice that potentially concerns biometrics (including employee timekeeping, identification procedures or security protocols). The failure to fully comply with BIPA, even when such a failure results in no actual injury to an individual, may lead to significant liability. Vedder Price attorneys are at the forefront in defending BIPA claims and counseling clients on BIPA-related policy and disclosure language.

Article by Brian W. Ledebuhr, Joseph A. Stubbe and Zachary J. Watters with Vedder Price.

For more articles on BIPA, visit the NLR section Cybersecurity, Media & FCC section.

Michigan SALT Workaround Update: Accrual Taxpayers

As a follow up to our tax advisory issued December 23, 2021, pertaining to Michigan’s new SALT workaround (Michigan Tops the Growing List of States with a SALT Cap Workaround for Pass-Through Entities), we are providing this update to alert accrual-basis taxpayers regarding the Michigan SALT workaround and the deductibility of taxes under section 164.

Section 164(a) of the Internal Revenue Code provides a deduction for state and local income taxes “paid or accrued”. Under normal accrual method accounting rules, taxes may be deducted if both of the following apply:

The all events test has been met (i.e. all events have occurred that fix the fact of liability, and the liability can be determined with reasonable accuracy); and
Economic performance has occurred.

With respect to taxes, economic performance generally occurs when taxes are paid. However, there is an exception to this for recurring items that meet four requirements:

The all-events test is met.
Economic performance occurs by the earlier of:
- 8½ months after the close of the year, or
- The date you file a timely tax return (including extensions) for the year.
The item is recurring in nature and the taxpayer consistently treats similar items as incurred in the tax year in which the all-events test is met, and
Either:
- The item is not material, or
- Accruing the item in the year in which the all-events test is met results in a better match against income from accruing the item in the year of economic performance.

Thus, under normal instances, if payment of tax is made by an accrual-basis taxpayer with a timely filed tax return in the following year and the rest of the elements above are met, state income taxes can be deducted on an entity’s federal return. Applying the normal accrual rules to the Michigan SALT cap workaround without additional authority, a partnership/S corporation that makes an election to be taxed at the passthrough entity level but does not pay such taxes until it files a timely return may still deduct Michigan income taxes if the elements above are met.

There is substantial concern, however, that the IRS may challenge this deduction based on authority issued. In Notice 2020-75, the IRS provided a limited blessing of certain SALT workarounds but focuses on where “specified income tax payments” are made. The notice does not specifically address accrual taxpayers, or whether accrual accounting rules would still apply to such taxes allowing payment in the following year. There are also concerns that the IRS may view passthrough entity taxes paid by accrual taxpayers as not satisfying the accrual accounting rules because of the elective nature of the tax.

Given the lack of certainty in this area, the conservative position for accrual-basis taxpayers should be to pay the passthrough entity tax by December 31, 2021. Payments can be made today on the Michigan Treasury Online system, which also triggers the election for the passthrough entity tax. From communications with the State of Michigan, we expect additional guidance to be issued in January of 2022 for the Michigan SALT workaround, including the release of the election form.

Article By Steven G. Cappellino and Eric M. Nemeth of Varnum LLP

For more articles on SALT, visit the NLR Tax section.

Not So Fast! How Poor Planning Can Doom Your Chapter 11 Filing

A Texas bankruptcy court’s decision earlier this year to dismiss the National Rifle Association’s (“NRA”) chapter 11 bankruptcy case as a bad faith filing illustrates the perils of a poorly planned chapter 11 filing, and highlights the need, even in crisis situations, to establish solid objectives and develop a sound strategy prior to seeking relief under the Bankruptcy Code. In re Nat’l Rifle Ass’n of Am., 628 B.R. 262 (Bankr. N.D. Tex. 2021). Unique facts and circumstances notwithstanding, In re Nat’l Rifle Ass’n of Am. provides textbook examples of things you should not do when filing a corporate chapter 11 case.

In its opinion, the Northern District of Texas Bankruptcy Court highlighted recent events in the history of the NRA prior to the bankruptcy filing, including: (1) the New York Attorney General (“NYAG”) opening investigations into the NRA in 2017; (2) the New York Department of Financial Services urging insurers and financial institutions in April 2018, to evaluate whether their relationships with the NRA were harmful to their corporate reputations and jeopardized public safety; (3) multiple whistleblowers notifying the NRA Audit Committee in July 2018 about alleged misconduct by NRA management, including conflicts of interest of senior management and board members and improper reimbursement of living expenses for certain employees; and (4) the NYAG filing a complaint against the NRA in New York state court on August 6, 2020 seeking dissolution of the NRA (the “NYAG Action”).

Approximately 3 months after the NYAG Action, on November 23, 2020, the NRA retained counsel to advise them on bankruptcy and restructuring options. The very next day, the entity “Sea Girt, LLC” was formed, as “a transition vehicle to facilitate the NRA’s relocation to Texas.” Id at 267. At a board meeting on January 7, 2021, the NRA board approved the employment agreement of the NRA’s Executive Vice President Wayne LaPierre, which included language allowing Mr. LaPierre to “exercise corporate authority in furtherance of the mission and interests of the NRA, including without limitation to reorganize or restructure the affairs of the Association for the purposes of cost-minimization, regulatory compliance or otherwise.” Id. at 267-68. There was no discussion of bankruptcy or reorganization at the board meeting, and the board was never informed that the employment agreement authorized Mr. LaPierre to unilaterally file a bankruptcy petition for the NRA. A few days after the board meeting, on Jan. 15, 2021, the NRA and Sea Girt, LLC filed voluntary petitions for relief under Chapter 11.

Approximately one month into the bankruptcy case, multiple parties, including the NYAG, filed dispositive motions seeking various relief that the bankruptcy court categorized as generally falling into three buckets: (1) dismissal; (2) appointment of a chapter 11 trustee; or (3) appointment of an examiner. Id. at 270. In adjudicating the motions, the bankruptcy court adopted the Fifth Circuit’s flexible view that the term “cause” in Section 1112(b)(4) could include “a finding that the debtor’s filing for relief is not in good faith.” Id at 270.

The Court’s good faith analysis largely focused on the NRA’s reasons for filing bankruptcy. After evaluating the relevant arguments and evidence, the Court concluded that the real purpose for the bankruptcy filing was to avoid dissolution in the NYAG Action. The Court noted that although there was “some evidence that the NRA want[ed] to streamline litigation and control litigation costs,…” that did not appear to be “the real purpose” behind the bankruptcy filing. Id. at 278. On the contrary, there was testimony that the NRA could afford to pay its legal fees and there had not been any analysis done of the comparative cost of litigation outside of bankruptcy versus the cost of litigation within the bankruptcy case. While the question of “[w]hether the NRA’s desire to leave New York and reincorporate in Texas was a true reason for filing bankruptcy [was] a closer call,” the Court was not persuaded that the conditions faced by the NRA predating the NYAG Action were an existential threat and reason to file bankruptcy in order to move to Texas. Id. at 278. Testimony of the CFO, that “he was not aware of any reasons to file for bankruptcy” was also not supportive of the argument that the bankruptcy was filed for financial reasons. Id. at 279. In the Court’s view, the other reasons that the NRA gave for filing bankruptcy, such as “preserving the NRA as a going concern” could all be grouped under the general reason of avoiding the dissolution in the NYAG Action. Id. at 279.

For its subsequent analysis of whether avoiding the dissolution in the NYAG Action was a valid purpose, the Court conducted the 2-pronged inquiry used by the Third Circuit, namely: “(1) whether the petition serves a valid bankruptcy purpose and (2) whether the petition is filed merely to obtain a tactical litigation advantage.” Id. at 280. The Court reasoned that a lawsuit seeking a monetary judgment, which could be financially ruinous for a debtor, was different from a state enforcement action specifically seeking dissolution under that state’s laws that must satisfy certain requirements. The Court found the NRA case to be a bad faith filing because its purpose was (1) “to deprive the New York AG of the remedy of dissolution, which is a distinct litigation advantage” and “[to deprive] the state of New York of the ability to regulate not-for-profit corporations in accordance with its laws.” Id. at 281.

In considering whether appointment of a trustee or examiner was in the best interest of creditors, the Court noted “cringeworthy” facts such as the evidence of the NRA’s past misconduct, including deficiencies in financial disclosures by senior management. Id. at 283. Even more concerning to the Court was the “surreptitious manner in which Mr. LaPierre obtained and exercised authority to file bankruptcy for the NRA,” where he had excluded key people such as the CFO and the general counsel from the decision-making process. Id. at 284. The determination of whether or not to appoint a trustee or examiner was further complicated because the NRA’s mission was, “at times, political and polarizing” and because “[t]he NRA does not sell goods or services” it would be difficult to find the appropriate fiduciary to serve as trustee or examiner. Id. at 284. Touting progress the NRA had made in recent years resulting in more disclosure and self-reporting, the Court concluded that, “[o]utside of bankruptcy, the NRA can pay its creditors, continue to fulfill its mission, continue to improve its governance and internal controls, contest dissolution in the NYAG Enforcement Action, and pursue the legal steps necessary to leave New York.” Id. at 284-85.

In re Nat’l Rifle Ass’n of Am. vividly demonstrates the danger of hastily filing a chapter 11 case, and then formulating a narrative post-petition as to the reasons for the filing that are not supported by evidence. Profoundly damaging to the NRA’s position was the inconsistency between the NRA’s arguments in bankruptcy court and the NRA’s own publicly announced reasons for filing bankruptcy, including a posting on its NRA website which stated, “This action is necessitated primarily by one thing: the unhinged and political attack against the NRA by the New York Attorney General.” The Court also expressed frustration at the lack of clarity caused by conflicting testimony of witnesses about the purpose of the bankruptcy filing. When the CFO testifies there is no financial reason to file bankruptcy, how do you argue that the bankruptcy was filed to reorganize the debtor? Also detrimental to the NRA’s position were corporate governance failings where there was no vote or even any discussion by the Board about bankruptcy and restructuring options, and it was clear that the decision to file chapter 11 was made by one person. This case shows that, given the significant costs attendant to an imprudent bankruptcy filing that is later dismissed, it is essential to establish clear objectives, articulate a coherent strategy, and practice good corporate governance prior to filing a chapter 11 case.

Article By Zana Scarlett of Nelson Mullins

For more articles on Chapter 11, visit the NLR Bankruptcy & Restructuring section.

New Year, New Rules: Chicago Employers Navigate Vaccine Mandates

With the new year comes a new set of health orders and employer obligations related to the COVID-19 pandemic. As a last-minute holiday present to Chicago businesses, the City announced a new public health order mandating that covered businesses require patrons as young as 5 years old to present proof of full vaccination, and require unvaccinated employees to undergo weekly COVID-19 testing. A few days after Chicago’s announcement, Cook County followed suit, announcing its own health order with commensurate obligations.

How should employers prepare? Much’s Labor & Employment team outlines the key elements of the City and County orders, including guidance on what employers should do now.

When do the new requirements take effect?

Both the Chicago order and the Cook County order (together, the “Orders”) take effect January 3, 2022.

Are small employers covered, or just larger employers?

Employers of any size are subject to the Orders, provided they operate one or more “Covered Locations.”

What is a “Covered Location”?

In general, the Orders cover restaurants and bars, fitness and exercise venues, as well as entertainment and recreational venues where food and drinks are served. As stated in the Orders, “Covered Locations” are:

Establishments where food or beverages are served including, but not limited to, restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms.
Event spaces, such as hotel ballrooms, commercial event and party venues, and nightclubs.
Gyms and fitness venues, such as gyms; recreation facilities; fitness centers; yoga, Pilates, cycling, barre, and dance studios; hotel gyms; boxing and kickboxing gyms; fitness boot camps; and other facilities used for conducting indoor group fitness classes.
Entertainment and recreation venues in areas where food or beverages are served including, but not limited to, movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers.

There are exceptions, however. The Orders do not cover houses of worship; K-12 schools; locations in O’Hare and Midway airports; locations in residential or office buildings that are limited to residents, owners, or tenants of the building (such as your office kitchen or condo common area); or food service establishments providing only charitable food services, such as soup kitchens.

If I’m a Covered Location, what are my obligations with respect to patrons?

Covered Locations are required to verify that any patron age 5 or older is fully vaccinated against COVID-19. The Orders adopt the most restrictive definition of “fully vaccinated” in use by the Centers for Disease Control and Prevention (CDC) or the applicable local health department. As of December 30, 2021, that means two weeks after the second dose of a two-dose vaccine series or two weeks after a single-dose vaccine. It does not yet include booster shots.

There are some exceptions, however. For example, Covered Locations do not need to check the vaccination statuses of patrons entering an establishment for less than 10 minutes to order and carry out food or to use the bathroom. In addition, individuals who have received a medical or religious exemption can still enter these locations, provided they show proof of the medical or religious exemption and a COVID-19 test “administered by a medical professional” within 72 hours prior to entering the Covered Location.

And, for those of you reading this article who are a “nonresident performing artist” or “nonresident professional athlete,” first, thanks for reading, and second, you’re not covered and don’t need to show proof of vaccination status before playing in Chicago.

What counts as sufficient proof of vaccination status?

It’s the proof you would expect. Patrons can present a physical CDC COVID-19 Vaccination Record Card or show a paper or electronic copy of one (such a picture on a phone) that shows the patron’s name, brand of vaccine, and dates administered. Also acceptable are official immunization records from the jurisdiction where the vaccine was administered. Patrons who are age 16 or older will also need to provide identification showing their name, such as a driver’s license, passport, or state ID card.

Are businesses required to keep copies of patrons’ vaccination statuses?

No, and nor should they.

OK, so that takes care of how we handle members of the public. But what about our employees? Do the Orders require that they be vaccinated?

No, the Orders are not requiring that businesses mandate employee vaccinations. Rather, it’s a shot-or-test requirement. In other words, employees who work at these covered entities must either present proof of vaccination to their employer or undergo the weekly testing required by the recent Occupational Safety and Health Administration (OSHA) emergency rule.

Wait, I thought the OSHA rule was on hold? Or on again? Honestly, it’s a bit confusing.

We hear you. As of the date of this article, it’s back on again, but now legal challenges to the rule are before the U.S. Supreme Court. Stay tuned on that front. However, regardless of what happens with that rule, Chicago and Cook County will be able to enact these testing requirements. So, even if the OSHA rules are never implemented, the local requirements in the Orders will still take effect January 3, 2022.

What vaccination information do I need to collect from employees?

Employers are required to obtain confirmation of employees’ vaccination statuses, and the acceptable proof of vaccination is the same as for patrons. Notably, the Orders’ guidance states that employers are not required or expected to maintain copies of employees’ proof of vaccination, but they are required to document the verification and compliance, and to have those records available for inspection by the city.

But what about testing? That’s what I’m most worried about.

Employees who are not fully vaccinated against COVID-19 will be required to receive a COVID-19 test every seven days and provide to their employers verification of a negative result.

Just as with the OSHA rule, only certain tests are considered acceptable. The test cannot be an antibody test, but instead must be a test approved by the Food and Drug Administration (including Emergency Use Authorization), such as a PCR or antigen test. Additionally, over-the-counter boxed tests are acceptable only if they were observed by either the employer or an authorized telehealth proctor. Employees conducting the test on their own at home and then reporting the results – which is how most people use boxed COVID-19 test kits – would not qualify as acceptable testing under the Orders.

What records do I need to keep of negative tests?

The Orders and the City’s guidance state that they do not expect or require employers to keep copies of the negative test results. Rather, they expect that employers will keep a log that documents verification of the test results and compliance with the Orders.

What if an employee tests positive?

The employee must be excluded from the workplace and follow CDC guidelines. If the test result is inconclusive, the employee should be retested in order to provide a positive or negative test result.

Do I have to pay for tests? Or pay employees for the time spent obtaining a test outside of working hours?

These are excellent questions that, unfortunately, still have unclear answers. Much of the current guidance on who pays for a test, or whether the time spent taking a test is compensable, pre-dates current developments and is predicated on the testing being employer-mandated, rather than mandated by government orders. OSHA’s position with respect to its testing rule is that employees generally bear the cost of testing, but even OSHA acknowledges that “employer payment for testing may be required by other laws.” OSHA’s position may not be the position of the Illinois Department of Labor, and the question of who pays for testing in the context of employees with medical or religious grounds for not becoming fully vaccinated is not clear. For now, we await further guidance on how employers are meant to approach this issue.

What else? Any other requirements? I’m guessing there’s another poster to put up.

There are some additional requirements, including a poster. They can be found on the City of Chicago website. Employers subject to the Orders also will need to “develop and keep a written record for describing the protocol for implementing and enforcing the requirements” of the Orders. The City of Chicago has issued guidance for employers’ protocols, but it will not be issuing template policies. The City has also issued a template “COVID-19 ‘Proof of Vaccination’ Compliance Plan,” as an example of how to track employee test results.

Any other takeaways?

As with any new COVID-19 guidance and requirements, the situation remains fluid. Additional clarifications and guidance may be issued before and after the Orders take effect on January 3, 2022. Employers have become adept at adapting to what seems like an ever-changing regulatory landscape, and the Orders are just the latest example.

Article By Matthew J. Feery and Laura A. Elkayam of Much Shelist, P.C.

For more articles on COVID-19 rules, visit the NLR Coronavirus News section.

Legal News Roundup December 2021: Firm Inclusion & Diversity Efforts, Hiring & More

Happy new year! Read on for the latest law firm hiring, pro bono and innovation news:

Ropes and Gray announced the opening of their 12th location in Los Angeles in 2022, which will focus initially on the healthcare and equity & asset management industries. Attorneys Howard Glazer, Torrey McClary, Ranee Adipat and Leslie Thornton will assist in opening the new office, as they look to expand their reach in the Southern California market.

Ropes and Gray also added Brandon Howald to their new Los Angeles team. Mr. Howald brings 22 years of private equity experience to the practice.

“Opening an office in Los Angeles is a really exciting move for Ropes & Gray. Southern California is a market where we have been active for many years. We already have a robust and growing roster of clients in a region with a vibrant private equity and asset management business, as well as strong California health care, life sciences, M&A, and technology practices. We have been very strategic in establishing a presence where our clients needed us, from Asia to London to Chicago to the West Coast. That same vision propels us into Los Angeles—and Howard Glazer, Torrey McClary and Brandon Howald have the industry expertise, entrepreneurial drive and Southern California roots to help lead us,” said Ropes & Gray’s chair, Julie Jones.

“We are opening in Los Angeles with a powerful platform: a roster of market leading clients, established partners with deep ties to Los Angeles like Brandon Howald, Howard Glazer, Torrey McClary and our powerful global network—all with the high bar of excellence clients come to expect from Ropes & Gray,” said the firm’s managing partner, David Djaha.

Real estate and general practice attorney Carmen I. Pagan has joined Romer Debbas LLP as Partner and the head of their Agency Lending Practice. Ms. Pagan specializes in commercial lending issues, senior and student housing through Freddie Mac Seller/Servicer and Capital Markets Execution programs, cross-collateralization loans and more.

Recently, Hofstra University School of Law, named alumna Ms. Pagan asan “Outstanding Woman in Law” which acknowledges women who made inspiring contributions to the legal profession. Ms. Pagan is committed to the advancement of women’s issues in the workplace and diversity, equity and inclusion (DEI) efforts.

McDermott Will & Emery announced three new additions to their Intellectual Property practice. The new additions are:

Simon Roberts, who focuses on patent litigation in the biotechnology and life sciences actors. Mr. Roberts is joining the New York office.
Jason Leonard, who advises on complex life sciences patent litigation. Mr. Leonard also is joining the New York office.
Maxwell ‘Mac’ Fox, who focuses on Intellectual Property IP infringement litigation and licensing and counseling matters. Mr. Fox will be joining the Japan office.

“McDermott continues to make incredible strides toward advancing our remarkable IP practice into an industry powerhouse. Simon and Jason bring significant life sciences patent litigation strength to our bench in New York, and Mac’s experience with Japanese technology and life science companies is unmatched. These three bring a lot of fire with them, and they will be incredible additions to our global IP team,” said William Gaede, Chair of McDermott’s Global IP practice.

Sheppard, Mullin, Richter & Hampton announced the addition of Ms. Lauren Strickroth as a partner in their Orange County office. Ms. Strickroth specializes in fiduciary litigation, business disputes, private wealth disputes and litigation involving estates and trusts matters. Ms. Strickroth also serves as general counsel for private businesses.

“Sheppard Mullin’s private wealth and fiduciary litigation team constitutes one of the premier practices in the U.S. We are confident Lauren will help expand our impressive record of success in the courtroom that has kept us at the top echelon of this niche field of trial attorneys throughout the U.S. and worldwide,” said Private Wealth and Fiduciary Litigation Practice Group Leader Adam Streisand.

“Over the last few years, our Private Wealth and Fiduciary Litigation practice has grown and their ongoing involvement in some of the most high-profile estate disputes is a testament to their outstanding reputation and expertise. We’re thrilled that Lauren is joining us,” said Sheppard Mullin’s vice chairman Jon Newby.

Legal Industry Awards and Recognition

Who’s Who Legal – Environment named Lynn L. Bergeson as a leading legal practitioner in North America for the 17th time. Further, she was named a top lawyer in chemicals, manufacturing, nanotechnology, and pharmaceuticals industry groups by Super Lawyers for the 15th time. Ms. Bergeson, an experienced attorney in environmental, chemical, and nanotechnological law, is presently a Managing Partner at Bergeson & Campbell, P.C., as well as President of The Acta Group , Bergeson & Campbell’s scientific and regulatory consulting arm.

As noted in the recognition by Who’s Who Legal, “Lynn Bergeson is renowned as ‘an excellent lawyer, particularly in chemical matters’. Her in-depth knowledge of risk assessment and liability management receives further applause.”

Simultaneously, Bergeson & Campbell, P.C. received National and Metropolitan Tier 1 rankings for Environmental Law and Environmental Litigation in U.S. News and World Report’s 2022 Best Law Firms. As of this recognition, the firm has held these rankings for a full decade.

Chicago Lawyer Magazine named Antonio M. Romanucci, Founding Partner at Romanucci & Blandin, LLC, their 2021 Person of the Year. The award is given to honor a notable newsmaker, trendsetter or legal leader in the preceding year. Mr. Romanucci, a long-time civil rights lawyer, most notably represented the family of George Floyd in the civil lawsuit against the City of Minneapolis and four police officers.

“There is no question that this honor is a capstone for my career as a trial attorney,” said Mr. Romanucci. “It’s so hard to believe how far my life has come since my days as a Cook County Public Defender to now one of the founding partners at a nearly 25-year-old Romanucci & Blandin. It’s a testament to the will and fortitude my law partner, Stephan Blandin, and I have always had to make sure the client comes first.”

“The banner headline for Antonio Romanucci this year is the historic $27 million settlement the George Floyd legal team secured,” said John McNally, Managing Editor at Chicago Lawyer Magazine. “It’s a major dollar figure for a case that struck nerves – many that continued to be frayed to this very day – throughout the United States. But where one could be despondent, Romanucci is hopeful. He has to be, otherwise what’s the point? So in addition to his heavy workload at Romanucci & Blandin, he’s barnstorming the country speaking to lawyers, law students and others who can make a difference in the quest for justice.”

Henry Talavera, a Shareholder at Polsinelli PC, received a Lifetime Achievement Award as part of Texas Lawyer’s 2021 Texas Legal Excellence Awards. A member of the firm’s Dallas office and the vice chair of the Employee Benefits and Executive Compensation Practice, Mr. Talavera is well-experienced in the fields of employment law and tax law, and has represented clients before the Internal Revenue Service, the U.S. Department of Labor, and the Pension Benefit Guaranty Corporation.

Brian Bullard, Managing Partner of Polsinelli’s Dallas office, notes the significance of this award: “For the last eight years at Polsinelli and throughout his career, Henry has played a vital role in the legal community, not only providing needed counsel to his wide range of clients but serving as an advocate for diversity in the profession and beyond. This Lifetime Achievement honor recognizes just how vital his contributions have been for the past three decades, and all of us at Polsinelli look forward to witnessing and supporting his continued accomplishments going forward.”

Firm Inclusion & Diversity Efforts

Much joined the Law Firm Antiracism Alliance (LFAA), which aims to use the law as a vehicle for change to help oppressed and underserved communities. Much previously represented the LFAA in filing an amicus brief in the Supreme Court about an issue involving Jim Crow measures used to disenfranchise Black jurors.

“We’re proud to join the nearly 300 Alliance firms working together to address systemic racism in the law. It’s our privilege and our responsibility to continue working for the rights of marginalized people,” said Steve Blonder, who led the recent work with LFAA and also serves as chair of the firm’s social responsibility initiative, Much Community.

The LFAA works to create systemic change and racial equity in the law.

Kimya S.P. Johnson joined Jackson Lewis as its new chief diversity, equity and inclusion officer (CDEIO) and principal. She will work with firm leadership, key stakeholders, and practice group leaders to expand, manage and oversee firmwide DEI initiatives and lead a team to execute a comprehensive, strategic DEI plan.

Ms. Johnson will also serve as a member of Jackson Lewis’ Corporate Diversity Counseling group, advising companies on diversity assessments and action plans. She has over 20 years of experience as an employment attorney, and supports employers in their efforts to provide legally-compliant, effective and organizationally-integrative DEI plans. Ms. Johnson previously served as the chair of the Diversity & Inclusion practice group at Ogletree Deakins.

“With Kimya at the helm of our strategic DEI efforts, we will strengthen our inclusive culture that values the contributions of every employee and continues to emphasize the importance of having a workforce that reflects the various communities in which we work,” said Firm Chair Kevin G. Lauri. “In addition, I believe all within Jackson Lewis and beyond will recognize we are intentional and committed to doing what it takes to move our leadership, our firm, and our profession forward in this vital area. We are thrilled to add Kimya to the team.”

“Fostering DEI is a critical component of Jackson Lewis’ culture, and the CDEIO role will collaborate with all departments and functions to advance DEI as a firm value,” said Firm Managing Principal Samantha Hoffman. “Kimya has a track record of creating meaningful enhancements for law firms. She is known as an innovator and has already contributed excellent ideas to build on the success of our DEI strategy. We are so pleased to have her on board.”

Before her career as an attorney, Ms. Johnson worked as a public elementary school teacher in South Bronx, New York and served as campaign manager for a candidate for U.S. Congress.

Dinsmore received Best in Class for diversity in the legal profession by Crain’s Cleveland Business in its issue recognizing seven “notable businesses championing diversity and inclusion.”

“Everyone has a customer in the business world, and the customer population is becoming more diverse,” partner Richik Sarkar told Crain’s. “Look around your company. If everyone seems the same, especially in leadership, you’ll have a problem serving your customer, and if you don’t take steps to understand your customers, you’ll face failure sooner rather than later.”

Dinsmore previously earned the Mansfield Rule 4.0 Certification Plus for the 2021 iteration of the diverse leadership hiring initiative. The firm also partnered with Procter & Gamble and the Ohio Innocence Project at Cincinnati Law to create a fellowship for a diverse recent law school graduate to gain experience in civil rights litigation and policy-making.

The firm’s Pre-Law Minority Program also helps students of color at four Kentucky universities.

Article By Hanna Taylor, Chandler Ford and Rachel Popa

of The National Law Review / The National Law Forum LLC

For more articles on legal marketing, visit the NLRLaw Office Management section.

Content Marketing Idea: Create a Year-End Email and Social Media Post

I have an idea for you to engage with your clients and prospects this time of year – send them a year-in-review email.

An effective year-in-review email strengthens confidence in your business, shows your growth while reinforcing your market position.

Think of your year-in-review email like an annual review of your company’s top highlights over the past year and a recap of your best blog posts, articles, webinars and other client-centric content.

Many brands use an annual report to brag about their successes, and that’s why they fall flat.

You’ll have so much more engagement if you keep the content client centric and not boastful.

This is not the place to tout your rankings or brag about why you are the best. Always ask yourself “why would my audience care about this piece of content?” “does it educate or help them?” and if you can’t answer that, omit it.

If you provide a product solution, use the email to remind your audience how much your product or service helped them achieve success and inspires them to accomplish even more next year.
You can also share stats and facts that show milestones and how you’ve grown, such as: reached x customers, welcomed x new team members, opened a new location, moved to a bigger office, product and partnership launches, mergers, anniversaries, a rebrand or lateral growth. You can also highlight specific clients. Just avoid vanity metrics.
Take a look at your behavioral data and identify trends within your audience, like top-selling products, most popular blog posts and client alerts, most shared social media posts, etc.
Consider recapping some top stories or interesting stats of the year in your industry and for each one, share a brief reflection, action you took or a relevant tip.
You can also look ahead to 2022 – discuss industry trends, highlight upcoming 2022 events or upcoming launches.
Add personalization, if possible – pull stats unique to each customer and incorporate into the content.
At the end of the email, thank your readers and make it easy for them to share the content with others.
Create a call to action depending on your business goals. Drive readers back to your website, promote sign-ups for your newsletter or encourage following your social channels.

Year-in-review emails are great for generating leads and conversions, engaging your audience, and retaining clients and are often overlooked.

Article By Stefanie M. Marrone of Stefanie Marrone Consulting

For more articles on social media, visit the NLR Law Office Management section.

COVID-19 Update: The CDC Issues New Isolation Guidance

On December 27, 2021, the CDC shortened its recommended isolation and quarantine periods for those infected with, or exposed to, COVID-19. Because the CDC’s Isolation Guidance is incorporated by reference into OSHA’s vaccination or test rule, larger employers should revise their policies to reflect these new guidelines in advance of the January 10th deadline for compliance. Here is a summary of the new isolation/quarantine periods:

Employees Who Have Tested Positive and are Asymptomatic

Isolate at home for five days.
Mask for five days after isolation period.

Employees Who Have Tested Positive and Have Symptoms

Isolate at home for five days and, if symptoms resolve during that time, the employee can leave isolation.
If the employee has a fever, the employee must remain isolated until the fever resolves.
Mask for five days after isolation period.

Employees Who Are Exposed to COVID-19 and Have Received Booster

No required isolation or quarantine.
Wear mask for 10 days.
Best practice: Test, if possible, five days after exposure.

Employees Who Are Exposed to COVID-19 and Completed Vaccination (Pfizer or Moderna) Within the Last Six Months or Received J&J Vaccine Within the Last Two Months

No required isolation or quarantine.
Wear mask for 10 days.
Best practice: Test, if possible, five days after exposure.

Employees Who Are Exposed To COVID-19 and Are Unvaccinated or Completed Vaccination (Pfizer or Moderna) More Than Six Months Ago or Received J&J Vaccine More Than Two Months Ago

Stay home for five days.
Mask for five days after quarantine
If employee cannot quarantine, mask for 10 days
Best practice: Test, if possible, five days after exposure.

Article By Morris L. Hawk of Roetzel & Andress LPA

For more articles on COVID-19, visit the NLR Coronavirus News section.

Hiring and Marketing in the Legal Industry with Roy Sexton of Clark Hill Law and Legal Marketing Association [PODCAST]

Thor’s hammer, “Mjollnir!” Attorneys with dogs! Superman t-shirts! Roy Sexton leads a lively discussion about how the little quirks make your law firm more attractive to new hires, current staff, and the audience of your marketing efforts. He shares his career anecdotes and Clark Hill Law‘s recent branding revamp while being frank about the need for a new type of law firm culture. Learn more about the Legal Marketing Association here.

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

INTRO 00:02

Hello, and welcome to Legal News Reach, the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO, law firm best practices, and more.

Rachel & Jessica 00:15

I’m Rachel. And I’m Jessica. We’re the Co-Hosts for The National Law Review’s Legal News Reach podcast.

Rachel 00:22

In this episode, we’re excited to talk to Roy Sexton, Director of Marketing for Clark Hill, about hiring and legal marketing. Roy would you like to introduce yourself?

Roy Sexton 00:30

Sure, I think you’re gonna regret having me as a guest. But I’m Roy Sexton, Director of Marketing. I’m also an active volunteer with the Legal Marketing Association, recently named President-elect for 2022, and President in 2023. Again, probably something they will live to regret. But I’m very honored to have been tapped in that way.

Rachel 00:50

Congratulations. As I mentioned earlier, one of the topics that we really want to dive into here is hiring and marketing trends in the legal industry, I think there’s been a lot of interesting hiring and sort of labor/employment topics to come out out of the pandemic. In particular, specifically, how it’s getting harder to hire people, you know, retaining people that we do have, and just how COVID maybe long term will affect labor in this country and employment and hiring and all those things. In terms of the difficulty that midsize firms are finding it hard to hire lawyers on their legal staff. Is that a trend that you’re seeing? And if so, like, how can offices really remedy that issue?

Roy Sexton 01:30

Yeah, obviously it’s a trend we’re seeing in the industry. But fortunately, we’re not seeing it at Clark Hill. I had a recent opening in our team. And it’s for an events role. So presumably there are a lot of people out there that in the event space that we’re looking so I’m not going to put you know, you got to think about what, again, each submarket of the hiring market, right, and what’s influencing that, but in this case, we had like 85 applicants all pretty strong. And when I’ve had positions posted before I get me like 2030. So again, it’s an event so that’s probably driving that as well. I think we as a firm have really pushed culture, we launched our new brand in May. And my boss Susan Hearn, who’s a genius and wonderful because performance reviews are coming up soon. I love you. She, you know, she had the wisdom with our chief HR officer Kathy Sullivan, to say, when we launched that brand, let’s take the values that we usually keep for internal purposes and make them the spotlight on the brand. So we push that hard. And we did a lot of video asset creation about the firm generally the culture we are because we knew our clients and prospects would say that’s a nice place. Those seem like good people, I want to work with them. And I think we now that our second phase of the brand launch, launched about a week or so ago was a talent brand specifically. And we have Kathy with a video that’s gotten like 60,000 views on our social media so far, talking about, “these are our values, we believe in them.” And at Clark Hill, everyone has an equal footing. I mean, I think we know law firms struggle with that kind of upstairs-downstairs thing. If you’re not an attorney. Well, you’re just you’re dispensable and you don’t be treated with the same level of respect. I think clerk Hill has tried to intentionally take a different tack in that regard. And the attorneys are there with us. I mean, it’s not like we’re trying to sell them on an idea that they themselves don’t believe. They are there already. So we’ve fortuitously pulled from the culture, we already had clerk Hill has grown through acquisition. So we had a lot of different regions that came together to be Clark Hill. And it was important for us to go forward or the brand that told the firm story, elevated, everyone, and said, “I’m part of a bigger family here.” And I think, knock-on-wood, our recruiting efforts have benefited from that kind of message. So you know, I don’t want to, you know, spoil the secret sauce. But for those firms that are facing that conundrum, everyone always says, Oh, we’ve got a great culture. Well, show it, demonstrate it, use video, use photos. This is my home, I’m in the basement. My husband sent me down here 19 months ago, and I haven’t come back. But you know, we in the early days of pandemic, I had my dog here beside me the whole time and my social media person, Tommy said, Hey, let’s do a four-legged coworkers campaign. And we did and we got so much response from that we were posting dogs not and you’re like oh, and Facebook, right? I think LinkedIn. Interestingly, a year later, LinkedIn now has dogs of LinkedIn. Have you noticed this? They promoting that and I’m like they stole our idea. After we went through about six weeks to this one person in the firm said, should we be doing that? That doesn’t really seem like something we should be promoting. I said Well, too late. It’s over. It’s said to people, this is who we are. We’re human beings. We do good work showing our humanity does not detract from our ability to do good work. It enhances it. And I think that’s what the pandemic has hopefully shown people that are willing to listen.

Rachel 04:47

I mean I dunno about Jess, but I’m all for more dog photos in general.

Jessica 04:52

Yes. Spoiled pets!

Roy Sexton 04:54

I also benefit as a manager from previous experience. I worked in healthcare for a decade and that’s fraught with its own challenges in the healthcare system I worked at had a Leadership Academy and I took every class I could and I loved it. And it was very much about, listen to your team, help them succeed. Find you have a job description, you have the talent, but find the path for them. So they see they have a career and potential. One of my early management memories is I had taken over marketing at this healthcare system, and they had an outboard Remember, you’re too young to remember those. It was like, it was a whiteboard, and it had little magnets or like I’m in, I’m out. And I had an exceptionally talented person who did our radio show all this stuff. She loved working from home, this is about 15 years ago. And I said, Fine, you can work from the moon, I don’t care. If you’re doing good work. I don’t care. Now look where we are. Well, she would always like to write on the board. I am working from home. So a colleague came in, who managed the quality and accreditation and was that kind of busy body of the of the health system. And she looked at that in whiteboard. And she kind of made a mental note and walked away. And later she goes, Roy, I got a call on the hotline. Do you have people working from home? I’m like, Maureen, you did not get a call on the hotline, you saw that board. So what I did is I walked out of my office and I said, “Hey, Barb, does this come off the wall?” And I ripped the whiteboard off the wall, I said, Yep, comes off the wall. So I solved for the problem a little differently. Lisa continued to work from home, I’m sure it was in violation of some policies and processes, but she was doing good work. And to change that, because someone was being a busybody in the organization was going to hurt the outcomes of the organization. You know, I’m not advocating people ignore the rules of their organization, don’t get me wrong, but understand your talent in what they need. And if they shine in a certain environment, let them be there. And don’t worry about what time they’d showed up. And because they’re gonna give you more than you ever expected, but if you manage for style and time and what they were, and when they showed up and how many hours they were in, they’re only going to give you that they’re not going to give you any more.

Rachel 06:59

I think that level of trust is really important. I think when they feel they can be trusted to sort of do that in their own way. And yeah, in the way that makes them work better. I think that’s something I hope many industries learn from this pandemic.

Roy Sexton 07:15

I don’t want to seem ageist, I do think we have generational issues. And it depends on your leadership and what they’re comfortable with. We are used to our cell phones and zoom in all these different ways that I can, you know, for 15 years now, I basically could do my job remotely, wherever and whatever I was doing, because there are those tools. So their assumption is, we all know what we know, they assume nobody’s doing anything because you’re not here in a suit and tie. No, it’s a little harder for a manager. But it’s so much more rewarding to focus on the outcomes. So you learn your talent, you learn their limitations, you help them fly, you don’t overly critique them until they’re ready. You can calibrate but let people get the foundation, let them be safe, folks who want to be here in a suit and tie if that’s what you want, you come in, but don’t expect that of everybody. You have to focus on the individual. And if they have talent, where are they going to shine the best, and it’s a job. And I appreciate that I work in a culture that has its rules, they follow the protocols, they ask you to commit to well, what are you doing to create a culture that people want to be part of, and it’s going to solve itself?

Rachel 08:23

You touched on this a little earlier in terms of bringing people into new roles, training them. And we touched a little bit on hiring, one of the things that we wanted to ask you about is what are your thoughts on hiring professional staff with like no experience in the legal industry, and what are the advantages and the disadvantages of that?

Roy Sexton 08:41

I think people get very linear and they’re like, Well, you only have these criteria, you don’t qualify for this. You don’t have to talk to the universe of people, some people just aren’t the right fit, but look at their personalities as much as the background they have. And I think you gain a lot. Somebody should at least have lawyers in their family. If you’re going to work for a law firm, you got to fit the personality is unique. Doctors have a unique challenge in that they love risk, but they love data. So if you’re working in marketing with doctors go in with enough data that they see you. You did some scientific method of this. Yeah, sure. Okay. Great. With lawyers, I went to I went in with data, because that’s what I knew from healthcare, oh, I barely left the room alive, because all they saw was risk and possibility. They want to avoid risk. You know, there’s some things you learn about the culture quickly, that that’s the only thing I would say if you’re going to hire somebody. And you have a very difficult law firm culture, a very demanding group of attorneys, you might want to grab somebody who’s at least worked with lawyers in some aspects. I don’t need to know the nuance of what the litigator is doing. But I need to know why it’s important, what audience you’re trying to reach. And then trust me to figure out the channels, the mechanisms and all that to do and sometimes attorneys jump into that they want to tie your hands and say I want to sponsor this rodeo because I’m going to get all this stuff out. I’m like, That’s a stupid idea, I can’t say that, I have to say, well, they could do that. Or you could do this, I don’t think you need to have a law firm background, at least for roles like mine. I hate it when people say it’s not rocket science, what we do is difficult, let’s not minimize that it is as hard as rocket science. Because it’s people, it’s relationships, and you never know what you’re getting when you walk in the door with somebody. But if you have some emotional intelligence, you have the chops to communicate to right, you understand the digital channels that are available to us. And you have the sensitivity to appreciate. This very busy person who has an attorney is very stressed out, and they’re not mad at you, they just don’t know what you’re talking about. And you have to have the patience and the calm and the kindness to understand what’s important to them, you can work very well. So that’s kind of what I look for when I’m interviewing people. I don’t get hung up on if they’ve worked in a law firm before. But if I feel like they’re a bad culture fit, and they haven’t worked in a law firm, and they don’t have the skills, and I said to somebody yesterday, you don’t want to work in a law firm, you’ve worked in retail, most other places don’t do it.

Rachel 11:07

That focus on interpersonal skills is something that I think, in the past has been undervalued. Yeah, sort of going off of what you said earlier, in terms of you know, you’re in college, you had an arts degree, I mean, think just my both have parts degrees, in some sense. And I also have a partner that has a STEM degree. And you know, there’s sort of like this dichotomy of like, those very hard math and science skills like, yeah, aren’t always what you need to succeed, a lot of times it is learning how to talk to people and form relationships and things like that.

Jessica 11:36

So when we think about the increasing conflation of a firm, like their operations that are changing- your cultural changes, what do you see as the role of a marketing professional in the market that exists now?

Roy Sexton 11:51

I think we’re in a unique opportunity, and a really strong one, you know, people, people fixate on the AI as an abstraction versus something that just needs to be the reality. When you think about the AI, or when you think about wellness or any of these topics, that confluence of law firms are struggling, we need to fix our culture, we need to have representation, we need to have legitimate, you know, put people in leadership roles that look like us on this call, you know, there are people of color there, you know, so people see themselves in the leadership ranks, and they’ll stick around. So if you make that change, now take the victory lap for marketing, tell people about it don’t don’t suddenly get shy. I’m celebrating a leader who’s creating great change. I’m celebrating young people who are being seen, their friends and family are like, wow, that’s a neat organization. And, again, you have to see that larger, you know, Disney, Apple, those companies do a good job of creating an environment you want to be part of, if you can steal some of that, as a law firm, don’t get so focused on I want a case tell everybody I won that case, it’s going to get me business. Okay, maybe. But if they see what kind of organization it is the culture change that’s happening, the fact that good work is coming out of that organization, then you’re going to attract talent, you’re going to attract customers, you’re going to have a sustainable model. And I do think sometimes people are just so linear in their thinking they miss that that broader storytelling, opportunity. So you know, I think we’re in a unique place. I also think the other side of the coin, I’m going to get real, technical, we have so much data available to us right now. We have so many tools. It is a marketer’s dream right now that we have to work with, we don’t have to go to outside agencies, sorry, service providers to do stuff. Use data in that way, again, to drive change in the culture to drive engagement. And these digital channels, you’re, you’re using them beautifully. I mean, I really, when I saw Jennifer Scholler, at ALM, she was overwhelmed with the response that has come from your platform. In recent months. This is it’s off the charts, because you got good content, you’re reaching people, you’re putting it out there in smart and clever ways. And you have a following. And people then gravitate, you know, they gravitate to where there’s a following, so.

Jessica 14:10

I’m so glad you mentioned how the legal industry does have the weird, high walls around it. Sometimes I think there’s such a particular hierarchy in a law firm in general. So the fact that you know, we all know people want to connect with people. So if you keep just having these tall walls of legality, I guess. Preventing people from wanting to connect with you. That’s why I mean, over and over. If we beat anything into this podcast, it’s that people want to know a law firm. They want to know the people. That makes them want to go to you in the first place.

Roy Sexton 14:47

I switched my LinkedIn picture the other day and I switched it back but I had one of me and a Superman t-shirt. Somebody took me I loved it. And I got so much great response to that but I got some people inside from like, Do you think that’s really the professional look you want to be going for and I second-guessed myself, I changed the picture. And then I resented myself for it, finding those moments of authenticity. That’s what people respond to. And I think we get so worried in law firms are rife with this law firms want to be first to be second, like, they don’t wanna be the first one to do anything, in case it’s too risky. But they want to be right there at second, we’ll be the first, no one’s paying that much attention anyway, you’re not going to, you’re not going to ruin your organization, anybody who comes at you with a phrase, you need to be taken seriously run away from them, because they’re worried about the wrong, none of us need to be taken seriously. We need to do good work, we need to be accessible, we need to have fun and enjoy the lives that we’re living. And those people who say those things to you, they’re nervous themselves, they want to be out of their own shell.

Jessica 15:46

It’s just that old environment, like what you’re saying about employees, you know, there are the ones who want to wear the suit and come in, and that’s fine. But that’s because that’s who they are. Yeah, and you should be okay with that, if that’s what you want to do. You know, but also the same has to go for people who want to work remote, and yeah, have Thor’s hammer behind them. You know what I mean? Like, I just feel like, I’m hiring the attorney that posts dog photos. That’s something I can connect with. And yeah, I think that attorneys in particular, so before this, I was a paralegal for a couple of years. So I’ve worked around attorneys a lot. And I think the, it’s that competition with each other, you know, you got to be the best you got to put up your Super Lawyers because people won’t take you seriously. I don’t know why that idea persists.

Roy Sexton 16:32

So I realize it come into a room. And it’s easy for me to say I don’t need to worry about being taken seriously, because I have the latitude to have Thor’s hammer behind me. And it’s colorful, somebody else who’s coming maybe and nobody knows I’m gay unless I tell him but I tell everybody, I have the latitude to be a little more myself. And I appreciate that some of what I’m saying may not work for people who have been in marginalized groups or who have felt, I’m speaking to two women. And so I’m going to mansplain back to you the experience you’ve had my husband, I were talking about this last night, he had a colleague who posted something about I’m part of this women’s group, and I’m so grateful for their support. And my husband’s kind of manager who literally does not see gender color. He just sees talent. He’s a wonderful human being in that regard. He goes, does that do people really need those groups still, I go, honey, you’re different than everybody else. A lot of women have had to go through hell. We saw it in the “Me Too” movement, things that we never knew or heard about. It happened behind closed doors, slights that happen, the marginalization that happened. So I realize there is an element sometimes if I wear the outfit everybody else is wearing, it gives me entree to then be myself, try to help us try to break down that need in an environment. If you knew the hurdles you had to overcome to get into your role, break them down for other people don’t let that continue. Because it’s unnecessary.

Jessica 17:57

I want to know because I’m sure law firms now with all these changes are getting so…not frightened- that might be too strong of a word, but they’re very cautious about things in general, you know, the risk, the risk management part of that is definitely a little bit. But when it comes to how you’re doing things with marketing, you know, how are you using like numbers to show that the work you’re doing is effective? You know, how are you doing that to reassure firms that yeah, you know, the necessity of it.

Roy Sexton 18:32

So we use Power BI as a sort of a baseline, we’re doing a lot of analysis through what we use sprout for social media. I’m not I’m not advertising to these people. I’m just saying that’s what we use. We’re working with ALM right now sorry, on some direct advertising. And and, and that’s giving us that ability to target and figure out who we’re reaching when we’re reaching and how we’re reaching them. Were really, with the new launch of the new website and brand, we stepped up our SEO, and we’re working with a partner there that isn’t just doing the SEO for us. They’re teaching our team how to do it correctly. So we have a monthly report that we send out to the firm, that’s more anecdotal. But he always take those laps, put yourself back in front of the firm going, here’s everything that happened this month, half of them read it, we get some nasty grams too long, didn’t read fonts too small, that kind of stuff. But mostly they’re like, we’re here. And now on a weekly basis, we send another digest, like, here’s how many alerts went out. Here’s how many events. So those are your kind of leading indicators that people go, there’s some kinetics happening and social media is really helpful that way.

Rachel 19:31

For our next topic, we want to focus in more on what Clark Hill has been doing in recent months, like you mentioned specifically earlier that the firm, create a new brand and focused on you know, the sort of value in the culture-aspects of it. How did that process go and what can law firms learn from?

Roy Sexton 19:48

The pandemic served us well, it gave us more time. We had a very aggressive timeline that I don’t know that we would have hit before. It gave us more months to dig in, and really what we had done in the development of brand- we worked with One North on the brand and the website. And we had a lot of listening and learning outposts. That was important to me. And it was important to my boss. And so we had a survey of everybody in the firm, not just attorneys, and we got like an 80% response rate with like, a shortlist of questions. What do you think the brand is? What do you hear that? You know, because we were bringing a culture together too. And then we went externally, we did client interviews, what do you think of the brand? What do we do? Well, what don’t we do, we baked all that together. So we did the discovery piece of it to then move to well, What messages do we think are a reflection of who we are, and then what’s our stretch to what we want to be, and we took the time to go through that process. And then we landed on a brand, we then with the pandemic, we had the moment to step back and go, Okay, we didn’t think we’re gonna be able to go through all the content on the website like we wanted to, we do. So let’s use the Education own moment here. Rather than just marketing, go rewrite everything and put it up. We use this as an educational opportunity with our BD folks and everybody to divvy up all the bios, we had a new structure to it, we had a headline, we did that intentionally, like let’s create a structure that forces a rewrite of the BIOS. So then we had the time to do a bio project. And Alex, France and Tommy on our team, they, they set it all up, they put a video together, we went to each business unit said, This is what we’re trying to do, the voice we’re trying to capture. We got pushback, we got people that didn’t want to do it for mostly though people. And the attorneys themselves took a swing at it. We use the development of the brand and the website very collaboratively, we delegated everybody got some time in it. We worked with all the operational areas in the brain lunch, we had an extensive process. Cheryl Kravitz helped us with a timeline of HR, you’re doing this, it you’re doing this, it’s not just only marketing things, everybody gets a piece of this. And at the end of it, we had a celebration, everybody got a swag box, we wanted to make sure everybody wherever they were got a box of new branded stuff, we had a wonderful video that tells studios put together of who we are telling our story. I’m an opportunist, and I’m cheap. So I’m like, we want to do a video that will work internally. And then I can slice it up and put it externally people didn’t understand what the hell I was talking about until we did it. They were like, well, this is for we want to talk about internal things. They go no, no, just inspire people. We can have some framing stuff from our leaders, but just inspire people. And then we’ll have that out in the world. We had like 370,000 views of that video, when all was said and done. It was thrilling. And we told our story, but we took time to have everybody feel like they were part of it. So when we launched the brand, not many people had seen it. But they felt like they were part of it when they saw it. And that made all the difference with all the other random stuff that comes our way on a daily basis to do this correctly, and make it launch where you don’t have 1,000 knives in your back. Give yourself two years and really open up the process where you can have people feel like they were part of it.

Rachel 22:51

Yeah, I think what you’re saying how the pandemic helps move things along is not uncommon. In terms of like the interviews we’ve done so far. I think a lot of law firms have said that the pandemic really pushed them to make these changes. And these changes were something that were in the pipeline for a while, and they just forced to move forward with them because they didn’t have any other choice. So that’s sort of that sort of leads into my next question here, when you were doing this and doing this branding and all this other stuff, and you launched it, you know, what has really been the response that

Roy Sexton 23:25

It was overwhelming. They were minor hiccups. And what I love about my boss is just a Roy, just take a pause, it’s fine, don’t don’t catastrophize it’s gonna be fine. Just We’ll get through it. It’s not a big deal. So sometimes you gotta listen on the things that don’t matter, really like the font of that email, and give. And then you have the big win. And by God, everybody loved the stuff that mattered the brand, they were so hungry for it. They had felt included, we done enough lead up to it, they knew it was coming, they loved the look, they felt elevated, that’s what you want with a brand. They felt like the brand that they’d had and inherited. And again, these were four or five different separate firms that have come together, Clark Hill inherited an old Clark Hill brand that even Clark Hills unlike anymore, seven felt like they needed new clothes for school. They so you gave them something fresh. And the video that was embedded with all these faces from all over the country, again, my boss’s wisdom, because I was like, well, let’s just have two or three people. Let’s make this easy. And she was No, no, Roy, we got to figure out how to get to six different locations and have a lot of people interviewed. She was right. Because people saw themselves in the story. And the response we got internally was exactly what we wanted. People quieted down. Their obsession was signage and all this stuff that they were driving us all crazy because they were like, Oh, you have this in hand. It gave us the credibility and all the other things to like, Oh, you guys actually know what you’re doing? Yeah, we do. And then the external response was, like I said with the video itself had 300 I think 375,000 views and the response from people outside the firm, because lawyers will never tell you that they’ll tell you when someone Outside the firm is teasing us. But they don’t tell you when they hear the good stuff. But I know they did. I know they heard from people outside going, Wow, you guys woke up, you’re doing interesting stuff. And and that’s what we wanted. You know we’re having a record year again, many law firms are having a record year again. So I can’t chalk it up to the brand and the website necessarily, but I feel like we landed a market and brand message just when we needed it at the right time to galvanize the organization to help us move forward. With strong leadership. Our CEO has been there every step of the way and supportive he was part of the brand launch, she has reinforced the things we needed him too. He’s challenged us when we needed to be challenged. My boss has seen the long game. I’ve had an incredible team of people whenever Anderson, she I feel like I’m giving an Oscar speech came in under budget way under budget, and on time, which is unheard of, and I’m very proud of that

Rachel 25:51

We spoke a little earlier was the importance of diversity and creating diverse teams. Can you speak a little bit about you know, what Clark Hill has done to do that, and like why it’s important?

Roy Sexton 26:01

Part of the DNA of the organization, our Texas offices that came online a couple years ago, Strassburger, they had a really robust program, they called it bold thrive and pride. I think we’re sort of evolving. I think affinity groups are important, but sometimes they almost think they also do some disservice. It’s like, I feel this way, sometimes all you gay people get together and go do stuff and talk and it’s like, Well, okay, but we need to, we need to demonstrate to everyone else, we have value. But those are that we brought those in and again made them part of this launch that we had attorney leaders now, not just in Texas, but across the country who are driving those efforts. Pride is obviously for our LGBTQ community. Thrive is for people of color. And then bold is our women’s initiative. But somewhat, they’re all a bit inwardly focused, because you’re trying to provide talent, tools, resources, and commiseration to people who are in those groups that work for the firm. But we’ve also started to extend that out to say, well, what are the programmatic offerings we can provide to demonstrate we’re committed to this, the education pieces, it’s, it’s gonna sound like small potatoes, but it was a big impact. Alex France on my team, she looked at the calendar and all of the events that are important both as recognition months, as well as the holidays, based on faith and culture and all those things. And so we have a an intentional message that goes on, we have an editorial calendar against that. And we’ve also used as an engagement strategy with our HR folks. So for, for example, Asian Asian American Pacific Islanders month, we had Alex and glory pack who was with us at the time, they put together little placards, we put on our social media with a story or a video component with people in their own words. And again, we didn’t live in it to attorneys, it’s paralegals, it was office managers, it was legal assistants, anybody who was in that category, or felt strongly about that and wanted to had something to offer, we made sure we were telling their stories on our digital channels. And then we circulated that internally. Now that all feels a little window dressing, you know, to get to the substantive issues our leadership team is actively looking at, how are we recruiting? Who are we putting in what roles how are we promoting and actively assessing that data to say, you know, are we using the Mansfield rubric, we don’t have enough hear or in some cases, we’ve actually been pleasantly surprised, because I think you always feel like you’re not doing enough. And then you look at some of it, and you’re like, Oh, we’re actually we’ve been more intentionally we even realized. So Linda Watson, who’s one of our attorneys has been leading that effort with HR, and they’re relatively early in that journey. But you know, they’re taking it quite seriously. When I was in health care, we went, we did something called the Malcolm Baldrige assessment, which is a quality piece, and some people do it just to win the award, we did it to actually improve. And Clarksville is doing that same thing with Mansfield, it’s like, of course, we want the recognition. But we want to use the criteria to get better. And I’m thrilled to see that, you know, I’m not involved in it other than this communication stuff I talk about, but what I’m seeing the firm do, I’m really pleased about. So

Rachel 29:03

I think it’s just great to highlight those things on this podcast, I think being able to learn from what others have done and be able to apply it to actually helps make change.

Roy Sexton 29:12

Well, and that’s why I’ve always loved being part of LMA. I mean, I don’t know if the attorneys know this. But when we all get together we tell everybody what we’re doing. Right? Don’t do that. Well, it’s there’s what you do, and there’s how you do it. So it’s it’s always good to see what other people are doing. Because then you can take that idea and build on it. And then they can build on your idea and you just get better. You know, there’s always live in abundance, not scarcity. And so you’re right, look at what other people are doing. go think about that. We should do some of that. But let’s do it our way. Let’s take the idea and do it in our style. And then you’re not stealing from anybody so

Rachel 29:47

Excellent. So yeah, we’ve had a great conversation with you today. Right. We really appreciate you joining us. A special thanks to Roy Sexton from Clark Hill for joining us today.

Roy Sexton

Thank you for having me.

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

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