CMS Removes All Nursing Home Visitation Restrictions as COVID-19 Cases Decrease

In order to continue addressing the impacts of COVID-19 on nursing home residents, the Centers for Medicare & Medicaid Services (CMS) recently issued a memo updating guidance for nursing home visitation. You can read the full memo here.

Early in the pandemic, CMS implemented visitation restrictions to mitigate the risk of visitors introducing COVID-19 to nursing homes. Now, CMS is updating its guidance and allowing visitation for residents at all times. CMS explained its decision to allow visitation is based upon data which shows approximately 86% of residents and 74% of staff are fully vaccinated, and the number of new COVID-19 cases each week in nursing homes has dramatically decreased.

Under the new guidance, nursing homes cannot limit the frequency and length of visits for residents, the number of visitors, or require advance scheduling of visits as mandated under the previous guidance. However, CMS is still directing nursing homes to follow infection-control policies and procedures. Visitors who have tested positive for COVID-19, have symptoms of COVID-19, or currently meet the criteria for quarantine, should not enter the facility. Nursing homes should still screen all visitors before entry.

Although not required, CMS is encouraging nursing homes in counties with substantial or high levels of community transmission to offer testing to visitors, if feasible. Nursing homes should also educate and encourage visitors to become vaccinated. Visitors should still wear face coverings and social distance at all times while in the nursing home. Nursing homes should stay diligent in their infection-control efforts.

Article By Sydney N. Pahren and Timothy Cahill of Dinsmore & Shohl LLP

© 2021 Dinsmore & Shohl LLP. All rights reserved.

Social Media, Content Management & Networking with Stefanie Marrone [PODCAST]

The pandemic forced the legal industry to rely on social media. So, where do you start? Rachel and Jessica discuss the best practices with Stefanie Marrone, Founder and CEO of Stefanie Marrone Consulting/The Social Media Butterfly. Be sure to also check out her “Women Who Wow” series.

Read on below for a transcript of our conversation, transcribed by AI:

Rachel

In this episode, we’re excited to talk to Stefanie Marrone, founder and CEO of Stephanie Marrone Consulting and the Social Media Butterfly. Stefanie, would you like to introduce yourself to our listeners?

Stefanie

Yeah, sure. Thanks, guys for having me on. I’m Stephanie Marrone. I have worked with law firms and at law firms for over 20 years . And then about two years ago, I went and started my own business where I’m a consultant to law firms and other companies in the legal industry. And I help them with everything under the sun marketing related and then also with a focus on social media. And I live in New York with my two French bulldog puppies, who will definitely make an appearance today, as I warned you guys before we started recording.

Rachel

Great, we’re excited to get more of your insights here on social media and content creation. So one of the main topics that we want to focus on today, and it’s been sort of a through line in our whole first season here is sort of trends in the legal industry and adjusting to COVID-19. So I was wondering if you could start off by talking a little bit about the trends you’re currently seeing in the legal market today.

Stefanie

What they’re talking about the entire world right now is  the great resignation. There are lots of people leaving their jobs and going to work other places where there is more flexibility, where there’s more work life balance, and that has created a huge problem for law firms of every single size. So I guess it’s a lot of different things, right, the industry was forced to innovate as a result of COVID. They were innovating when it came to how they did business with their clients, and technology became front and center. The work was sort of stagnant for a little bit, and people are nervous to hire, but now they’re back in full swing. And they’re having a lot of trouble. I’m actually working with a number of law firms on recruiting marketing strategies, for the first time in a very long time. Again, because it’s a candidates market, there’s so much content out there. But then they saw it as an opportunity later on. Any lawyer who said I’m just going to take my clients to golf or go out to dinner, or you’re still going to have trouble doing that, because a lot of people are not ready. It’s basically we’re in a new frontier we are talking about the last two years have been like pivoting every single thing you thought you knew and that you were doing, you had to like make a sharp, right, and then a sharp left right afterward, and you went off the grid because the GPS didn’t even have those roads on the map. Right. So it’s been a crazy time over the last 18 months and firms that don’t get it are behind the times. Any firm is requiring you to go back to the office every day is going to have a really tough time getting their people to be excited about working.

Rachel

Right. And yeah, I think one of the interesting things that we’ve heard so far in doing these interviews is the COVID-19 pandemic was like a catalyst to get law firms to change and do a lot of the things that people probably wanted for a really long time, specifically remote work, probably a better work life balance, things like that. You mentioned briefly like working with law firms to come up with sort of recruiting marketing. What does that look like? Like how are firms trying to differentiate themselves and really stand out compared to others right now.

Stefanie

My very first job in legal marketing was working at always Rifkind, Wharton and Garrison and my job was to start their alumni relations program and to help them with recruiting marketing, one of the programs we did was to interview lawyers and find out why we’re getting a candidate in the door, but we’re not closing the deal, or they’re choosing another firm. And what we found was it was a lot of things, it was behavioral issues in terms of interviewing, it was making the candidates feel important. It was the way they were selling the firm, so to speak, you know, communicating what it’s like to work here, full circle. 20 years later. Now I’m getting asked by law firms to help them do exactly what I did 20 years ago, which was to help them tell the story of their firm why of recruits to join the firm, how to promote their wins without sounding too boastful, which is something I tell people all the time you know, you don’t want to put all of your awards everywhere. Candidates don’t care about that. They don’t care about the work. They care about the mentoring, they care about the work life balance, and not everybody wants to make partner anymore. The other one is millennials, I learned so much from millennials. Because I, I grew up in a different generation and their needs and wants are different. So one of the things I’m doing is looking at the materials on the website crafting language that speaks to recruits directly instead of legalese. One of the things I’m working on is like a Glassdoor strategy for one firm, where, you know, we’re saying that listen, employees now have a voice, you can’t just treat everyone poorly and expect that no one’s gonna find out about it, we have checks and balances now, and people are more empowered than they’ve ever been before. So making sure you know, your Glassdoor is okay. And that, you know, it’s not just Glassdoor, there’s obviously Indeed there’s Chambers and there’s other places, but making sure that you’re putting your best foot forward everywhere, and that you’re thinking strategically about how to market yourself to these different audiences. And so I hope that helps, but it’s not enough to have that great name on the door anymore. If people know you to not be a great place to work or not have a great culture, you’re going to have to work harder to get those people to either want to come work for you or stay. Because a lot of firms are losing a lot of their lawyers right now, in this great resignation time and they’re going to where the grass is greener. The firms have to actually spend time retaining their talent. And that’s another thing that I work on in terms of helping them come up with strategies for development for associates and development for other people who may be in danger of leaving. It’s a whole new world, guys.

Rachel

Right. And I think that’s really interesting. You bring up sites like Glassdoor, and Indeed because, like, if you are in the job market, you’re looking to apply a place that already has terrible reviews, that’s people getting turned away before they even apply.

Stefanie

Gone are the days when all that was out there was what the what the firm was saying about themselves or the organization. But now, you have to actually stand by what you say you are, you have to be that kind of place. People only write reviews when they’re really, really happy or really, really, really angry. I work on our alumni relations programs, which is like that full lifecycle of an associate from the time, you know, from recruiting to the time they’re there to then they leave. And so many law firms don’t have a very strong alumni relations program, or they don’t think about it, even people who they’ve  let go or ask to find another job, it doesn’t always work out, it’s okay. But don’t exclude them from the Alumni Program, include them, you want them to be part of the community, you never know who’s going to be a potential recruit of client return to you or bad mouth you out there. So you know, we want to leave people with a feeling of respect even when it doesn’t work out.

Rachel

Right. And that sort of plays into what I want to ask next is sort of like that overarching idea of a firm’s marketing efforts, like their branding, things like that, and how that’s been sort of impacted by COVID 19. So how can attorneys and firms really keep up with their marketing during this time? Like, how can they launch like these, you know, efforts to build their alumni relations and things like that?

Stefanie

Yeah, so one of the things I was seeing in the beginning when COVID had just hit was every firm was doing the exact same thing. They launched a Coronavirus Resource Center, I think I actually counted, it was like 30, something law firms had the exact same name for their resource section. And most of them were using the same stock images. It was that, you know, red and black photo of the COVID cell structure. And they would put that on their website, and then all their materials. And all that did was scare the crap out of everybody. Right? So and you see that same image online as well. So I was just say, I was saying to firms, like, differentiate yourself, be different. Be pivot, be understanding, be empathetic to your clients, and your recruits. And anybody who’s out there, let’s not rely on email. I don’t know about you guys. But I never used Zoom before COVID and I grew up in a law firm environment. And tech was not necessarily always like yet the front and center. So it required us to all adapt and innovate. And there were a lot of people who fought it tooth and nail, but still did it. So I guess my  thought was that COVID change everything. It forced us to be more human. I think we shed a lot of the formalities. I think we needed to innovate, we were forced to do it. I think the firms that are still putting out content without thinking that habits have changed. We’re on our mobile devices more, and law firms have to pivot to that. If you’re not using LinkedIn, you’re way behind the times and you need to use it now. So social is such a big part of your strategy as a lawyer and then also as a firm. One thing that happened a lot During COVID, where people were doing webinars, and they realized that they didn’t necessarily have to give CLE credit or be accredited to do it, the people just wanted to get together and learn about different issues. So I see firms doing that, and I’m so happy they’re doing it, but I don’t see them maximizing their webinars. So they’ll do a webinar one, they won’t take the recording from the webinar, and then have that transcribed and then it becomes a client alert, or, you know, an article that they can place in a third party publication. They don’t use it for social media posts. It’s what I call one and done and they it just goes into like, disappears into thin air. So I guess I still see law firms need help in terms of maximizing their content assets and using them more efficiently and more effectively.

And I think, you know, it’s sort of like work smarter, not harder. Why not repurpose it, you know, make your content work harder and smarter for you is something I literally say once a day.

Jess

Yeah, so you sort of touched upon just how much COVID has changed everything. And you spoke a little bit about webinars, and that was a way for people to sort of stay connected. Are there any other ways that attorneys and law firms in general can build their brands of business as well?  Social distancing is still on people’s minds.

Stefanie

LinkedIn is so important. I think for the majority of lawyers and law firms, it’s going to be LinkedIn where 750 plus million people gather for Business Networking and Information. So if you’re not on LinkedIn, you should get on LinkedIn, you should build a strong profile. The profile should have keywords that describe what you do, how you do, and for whom you do it. So I say there are three building blocks of LinkedIn. One is your profile. So get that completely done and optimize the bio, don’t put like Mr. Smith is, blah, blah, blah, and don’t brag about all your awards. Number two are your connections, a lot of people just sit and wait for people to come to them and connect with them. And it’s a two way street. So you should be actively thinking about who you know, from different walks of life from your path, the more people in your network, the stronger your network will be for when you want to do number three, which is post content. And that’s where I find most lawyers fall short, they don’t know what to do or how to do it. And it makes a huge difference. There’s only 1% of people globally using LinkedIn who actively create content. So there’s a huge opportunity. And lawyers aren’t, in my opinion taking advantage of it, or when they do they sound just like everybody else. So I want to encourage them to do more of that. And if they don’t know what to share, they could go to their company page and share from there, there are a lot of lawyers in the world to anything you can do to remain top of mind with touch points that are useful, that are authentic, and that are, you know, meaningful is important. So that’s why content helps. So I tell people all the time, you know, they’ll ask me, you know, how do I get better ranked in Google? And how do I build my brand? Start writing. You guys know this because of what you guys do. But most people don’t follow your blog, you have to push out the content to people, most people don’t follow your client alerts. This is why we have social media, email marketing, content, syndicators, like what you guys do, and a whole host of other tools that most lawyers don’t realize, like what’s going on behind the scenes. So you can write a great piece of content. But if you don’t promote it effectively and efficiently, it doesn’t matter, no one will see it. You know, if you’re thinking about going back to quote unquote, normal, you’re thinking about it all wrong. Firms, like get that and use content and use webinars. And then, of course, meet with your clients in person. There’s no substitution for that. But this world is not going back to the way it was we will be using social we will be using content marketing more. And I hope that lawyers realize that and firms realize it and then firms do more to promote those things and encourage their people to do those things.

Jess

So you’ve got all this experience in the legal industry, so many years trying to get people all the tools they need with social media content. Can you tell me about Women Who Wow, and why you started that?

Stefanie

So Women Who Wow is a group that I started, it’s actually just supposed to be for women’s history month in March 2020. And I started it before the pandemic and then the pandemic happened, I kept getting recommendations for other women and the series took on a life of its own and so, Women Who Wow became an ongoing series featuring women mostly in the legal industry, giving their ideas and their thoughts and advice on their careers and how they’ve gotten to where they are advice that they would give their younger selves. You know, I really felt like there was a void in the industry for something like this. I thought we needed something where women could spotlighted and celebrated without expecting anything in return. I have over 100 people so far profiled, and it keeps going. And then that sort of started, you know, from the series, then we created events, and they’re all free. And they are various events, learning from women. So it’s various different advice from career advice, to even just kind of finding more balance in your life. And everyone and anyone is welcome. And so it’s been great to build community at a time when I felt so isolated. I think no matter where you are in your career, there’s something for you. It’s just a great way to network. I love this series. And it’s meant a lot to me to find community and to support other women.

Jess

And I think that’s so great, because the legal industry on its head seems to be more maybe male dominated as an industry. So bringing women together for different professional topics, I think could be really beneficial. Is that similar to why you started it? Like kind of your thinking behind it?

Stefanie

Yeah, absolutely. So when you work at a law firm, there’s a lot of class differentials, right. There’s staff, people like me, the marketing person, and then there’s the attorneys. And very often there are benefits given to the attorneys that aren’t necessarily always given to the staff, and there still is a hierarchy at law firms. I also know that there’s a lot of disparity between women in law making partner than men, it is harder for women to make law of make partner from the day they step into the door of a law firm, they are automatically at a disadvantage. And research backs me up. I spoke on a panel on this recently. And essentially, it’s for a number of reasons. They’re not part of the old boys club, there are more men, and it is harder for women to adjust it to balance everything because the sometimes very often the onus of childcare and all that stuff, falls on women. And so they wind up leaving, they don’t make partner they go and they go in house to go to smaller firms, or they leave the industry entirely completely sort of like discouraged by what happened. And so, yes, and my idea was that women can learn so much from each other. So in terms of like talking about, you know, how you find balance, or how you’ve made it work, or to not be so hard on yourself, or what are your success tips. That is what I wanted people to be able to share with each other.

Jess

And I think that was perfect timing on your part, building a community like that, when that pandemic started, we were already feeling very isolated. And then, you know, I’m sure there are, you know, just like women and other groups of people probably always have that sense of slight isolation in like an industry that they work in. So I like that that’s, you know, why brought them together and showcased a lot of people who have knowledge to share, what would you say to people who maybe don’t have that support, or would like that same support?

Stefanie

So I would say build a community, right? So I was missing it, I needed it, I created it. And I wanted to learn from these women. Join the Women Who Wow, it’s open to everybody. It’s free. Like I said, and I would say, you know, if you’re at a firm, surround yourself with people, either in person or online, who are supporters and your cheerleaders and find a mentor, and sometimes it’s not organic, sometimes you need to go actively find one. Sometimes it’s not just one mentor. Sometimes it’s multiple people who provide advice to you in different areas, but they’re people love to give advice. They love to be asked of like, what would you do in this situation? Or tell me about your career? I think a lot of people are afraid to ask for things, ask for advice, ask for help. Don’t be afraid to admit that maybe there are some times where you get in your own way or you need help. And I think I would just say we are all works in progress, and we need to be just a little kinder to ourselves, too.

Rachel

That’s a really great sort of segue into our next topic, which is social media and content strategy. We spoke a little bit about LinkedIn. And we definitely think you know, lawyers should be on that platform. How can lawyers really use LinkedIn to their benefit?

Stefanie

I went over the three fundamentals before in terms of profile connections and then utilization of the platform, which is where most people fall flat. The other thing I see people do is promote themselves on social. I’m seeing all these Super Lawyers rankings being posted. And they literally start the same way. I’m honored to be ranked, or I’m humbled to be ranked, or even worse, I’m honored and humbled to be ranked. It doesn’t make you sound honored or humbled when you write it like that. And so I tell people think about it differently. Tell a story. Why did you become a lawyer? Why did you join your firm? Who helped you on these matters? How did you get to where you are, flip it around, thank your clients, thank the team that was in the office making those copies that got that deal done. It’s all about being humble. People like to celebrate your successes, but they don’t want you to sound like you’re patting yourself too hard on the back. So it’s just telling a story. And I tell people show versus tell with everything. One of my other big pet peeves is if I write an article, or I have a client alert, the lawyers will often publish it or share it without any introductory text. And that is like the worst thing you can do on social because you’re basically letting other people try to figure it out. And it doesn’t rank well with your SEO which LinkedIn has SEO too, by the way. So I tell people write a synopsis. In the beginning, tell people why you wrote this, why it’s interesting. And, you know, I’m sure you guys understand this. But so many lawyers don’t necessarily get to the point right off the bat or in the first couple lines. And that is key on LinkedIn. Because what LinkedIn does in the newsfeed is only show you the first two or three lines of a post. So if you don’t capture anyone’s attention in that time period, they’re going to keep moving along the scroll. And so the whole goal of social is to stop the scroll. And if you don’t have good content, and you don’t have good imagery, they’ll keep scrolling. And I guess the other thing I would say is most lawyers don’t think about LinkedIn, they think I don’t have time for it, I don’t need it. I’m good at what I do I have business. Well, here’s the thing, your business could dry up tomorrow, your competitors are on LinkedIn, I tell people all the time, you know, do it because you see other people do it because you want to be part of it, and it is effective for them. The other thing is that you can use it for business development. So I call this low hanging fruit. But it’s the sections on LinkedIn, where was the notification section, it tells me about people’s birthdays, which sounds trivial, but actually, it’s a touch point to get back in touch with someone and can open up a dialog. I’ve seen this time and time again. So birthdays, work anniversaries and new jobs. People don’t usually send emails anymore, when they get a new job, it’s up to you to do the due diligence to find out where they’ve gone. And that’s a great reason to guys, today, I got three notifications just today on people getting new jobs. So I would send a congratulatory note. And LinkedIn makes it so easy, you just have to hit a button, right. So these are touch points that enable you to get back in the realm of thinking with certain people. And I think it’s I’ve seen it lead to new business. And I’ve seen people bring in business, I love my personal business comes from my presence on LinkedIn, helping others without the expectation of anything in return, posting content, and learning the tools, the algorithm of LinkedIn, how to use hashtags effectively, when to post and all of those things. So if a lawyer doesn’t think it’s worth their while, I can show them five examples of how it could be worth their while. And it’s certainly not the only thing they should be doing. Just like they shouldn’t be relying on spreading articles or taking their clients for a golf game. It’s part of the overall multi disciplinary marketing strategy today have a lawyer and a law firm that is necessary to build your brand and your business.

Rachel

Right. And that sort of ties into another thing I was hoping to sort of get your thoughts on. We’ve spoken about LinkedIn, but Twitter and Facebook are also pretty big social media platforms, how can lawyers and firms use those platforms more effectively?

Stefanie

Lawyers have a lot of trouble with Twitter, and Facebook and Instagram. And it’s not easy to build your brand on any of these platforms. A lot of us post our personal stuff on Facebook, and if there’s a way that you can tie personal and professional together, do it. If you worked on a real estate deal, take a picture of the building and say, you know, I’m so proud to live in this city or to have worked on this deal means a lot I’ve walked by this building a million times Never did I think I would actually work on this. So I always tell people be alert that everybody and anybody can be a potential client or source of new business for employees. So on Facebook, I would say just don’t sound boastful. It’s not the place to post Super Lawyers. I don’t think you should ever post that stuff personally, but but other people would disagree with me. And then on Twitter, so Twitter moves a mile a minute. To be successful on Twitter, you need to post multiple times a day. And if you’re not going to do that, then don’t bother. But you could use Twitter as a news aggregator which I see a lot of people will do so follow the accounts of your competitor law firms. Follow  other lawyers and use ideas that you get from what they’re writing.

To inspire you follow industry publications as well, trade show conferences that are happening, obviously, the major news outlets because news is broken on Twitter, I get a lot of my news from just scrolling on Twitter, the lawyers can use it that way. Lawyers can also use Twitter to build relationships with reporters, and congratulate them on things they’ve written and retweet them and stay in touch with them. I recommend you have two Instagram profiles, one personal that is private, and one Instagram that is for work. You will not be successful on Instagram if you don’t understand how to use the different types of content, and hashtags. That’s it. So there’s reels and IGTV and regular posts and stories. If you don’t know what this means, you should not post it. I would tell law firms and lawyers to claim your name so at least you have the domain but don’t post in places also where your clients aren’t. Go where your clients are. You don’t have to be on TikTok, please actually don’t go on TikTok, if you’re a lawyer, in my opinion.  You don’t need to be on every platform, go where your clients are focused first. And you have to alter the message for the medium. You can’t post the same image on Instagram, you have to make it a square and you have to change the text and you have to use the app side differently. And if this doesn’t make sense to you, that means you are not ready to do that. It’s a jungle.  I would tell you to just go where your clients are. And don’t feel pressured to be on every platform.

Rachel

Yeah, one of the other sort of overarching themes of our podcast season is like just like there’s no one size fits all solution, you have to be adaptable. And remember, the word of the entire 18 months is pivot, right? You have to pivot, sort of like rounding out a discussion on social media, what strategies have really been your tried and true?

Stefanie

Yeah, so here’s the thing, I never thought I would start my own business and you never know where your life is going to go. And I always worked in house at law firms, and I was always posting on social. Build your brand long before you ever think you need it. I was able to do consulting with law firms very easily because I had the presence on social. My advice is to start using social to post even if you feel like oh, no one cares what I have to say. Why not you? Yes, they do. Certain people will. You won’t be everyone’s cup of tea. And I’ll say, you know, the more successful you get at it, the more naysayers you have/ I talk about Mean Girls quite a bit in the Women Who Wow program because we come across those at all stages of our lives, we just forget about them.  When people are like that, it’s usually because something in you brings out something in them that makes them feel inadequate or insecure, or they’re jealous about something. So keep going. There’s no easy way to download every single LinkedIn post you’ve ever written, especially since like the dawn of time, you can download your articles, so like the long form ones, and you can download your contacts, but you can’t do it with the posts. And so I keep an Excel spreadsheet of all of my posts, and I reuse that. So don’t reinvent the wheel every time – you can reuse your content.

No one remembers, there’s no way to spam anybody on LinkedIn. And even if they saw it, it’s reinforcement then. So that’s been another key to my success. And then the other one is helping others. It’s propping up others. It’s promoting others. It’s when I see somebody doing something great promoting and mentioning them on social. So for every three posts I do about something of mine, I’m promoting someone else. And that’s Women who Wow, for me, it’s putting the spotlight on other people. That’s how you build really great relationships on social and then people want to do good things for you because you’re helping them. So all of these have been part of my strategy, but it’s sort of evolved over the years and by the way, my posts sometimes tank completely. And I’ll tell you, it gets discouraging, but you just keep going, you show up, you try different things, you keep posting. You look at what worked and what didn’t, you look at the time of day, the analytics, all those things and then just be open to pivoting again.  It’s not about the number of likes you get on a post. If I’ve helped five people, that’s great. I don’t need 1000 likes on a post. it’s nice when things do go viral – the things by the way that have gone viral for me are when I post about a challenge.

Rachel

That was a great conversation. Thanks again for joining us, Stefanie. We really appreciate it.

Stefanie

Thank you guys for having me.

Copyright ©2021 National Law Forum, LLC

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.

Intellectual Property Consolidation in the Agriculture Industry

Ever since agencies around the world such as the USPTO, USDA, and Union for the Protection of New Varieties of Plants (UPOV) have started recognizing and enforcing intellectual property rights relating to plants, there has been a slow yet massive consolidation in global seed markets.  This article discusses a brief history of how intellectual property rights and lax antitrust enforcement in the seed industry created one of the largest industry consolidations and how the current Administration seems to be taking steps in the right direction.

Intellectual Property in the Agriculture Industry

In 1930, the United States began granting plant patents and the USPTO issued the first plant patent in 1931 for a rose.  The UPOV is an international organization that was founded in 1961 to acknowledge and make available exclusive property rights for breeders of new plant varieties in all member states to the UPOV Convention. The U.S. Plant Variety Protection Act (PVPA) was enacted by Congress in 1970 to encourage the development of new varieties and to make them available to the public.  The Plant Variety Protection Act established in the Department of Agriculture an office to be known as the Plant Variety Protection Office.  These regulations are all very important for the protection and continued innovation of certain varieties of crops and plants.  However, when genetically modified seeds were introduced in 1996, seed companies began to take advantage of these protections and began to invest heavily in amassing as many seed-related IP rights as they could.  As these companies have merged and acquired smaller businesses, they remove competition from the industry, harming farmers, families, and consumers.

There are many ways that companies protect intellectual property in the agricultural industry.  For example, companies file for utility patents to protect a wide variety of plant-related inventions, such as breeding methods, plant-based chemicals, plant parts, and plant products. Plant patents are unique to the United States and provide protection to any distinct and new variety of plant that has been asexually reproduced, other than a tuber-propagated plant or a plant found in an uncultivated state.  Plant Variety Protection certificates, which are similar to plant patents, provide certain exclusive rights to breeders of any new, distinct, uniform, and stable sexually or asexually reproduced or tuber-propagated plant varieties.  Other rights, known as Breeders’ Rights, exist in other countries outside the United States and are very similar to the Plant Variety Protection regulations.  These protections generally last for 20 years from the date of filing and, according to the World Intellectual Property Organization, the patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected.

The Key Players in the Agriculture Industry

Monsanto was a multinational agricultural biotechnology corporation founded in 1901 and based in the United States.  In 1970, Monsanto scientist John Franz discovered that glyphosate was an herbicide and quickly patented it as such.  In 1974, Monsanto brought the patented glyphosate herbicide to the market using the tradename “Roundup.”  In 1996, Monsanto created the first genetically engineered (GE), glyphosate-resistant crop, causing Roundup-resistant soybeans to be planted commercially throughout the United States.  By 1998, glyphosate-resistant corn was available on the market, and Monsanto became the largest supplier of these new GE, “Roundup-Ready” seeds.  This was such a breakthrough in the agriculture industry that in 2003, Roundup-Ready seeds accounted for about 90% of the genetically modified seeds planted around the globe.

As with many industries, the agriculture industry has those companies that are at the top and those that are not.  The agriculture industry’s “Big Six” companies—Monsanto, DuPont, Syngenta, Dow, Bayer, and BASF—turned into the “Big Four”—ChemChina, Corteva, Bayer, and BASF— after a series of mergers and acquisitions that took place in the last decade with very little oversight from some of the antitrust authorities in the United States and around the world.  As a result of these mergers, the “Big Four” companies now control around 60% of the proprietary seed in the world market.

The Consolidation of the Seed Industry

Dr. Phil Howard from Michigan State University discussed the tremendous consolidation of the commercial seed industry in one of his first publications, 2009’s Visualizing Consolidation in the Global Seed Industry: 1996-2008.  Dr. Howard describes how the hybrid-seed corn industry of 1930, the enforcement of patent-like protections, and especially the commercialization of fully patent-protected transgenic, genetically engineered seeds in the mid-late 1990s triggered a wave of consolidation in the agricultural industry.  To make matters worse, when these companies consolidated and amassed massive intellectual property portfolios, it was not uncommon for seed rights to be bundled with other inputs to protect profits in other, agrochemical divisions.  For example, as Dr. Howard details in Visualizing Consolidation, in order to use Monsanto’s herbicide-tolerant transgenic seed, farmers are required to also use Monsanto’s proprietary glyphosate herbicide, rather than a generic herbicide.  Essentially, if you were buying Roundup-Ready seed, you were buying Roundup herbicide, and if you were using Roundup herbicide, it was probably a good idea to buy Roundup-Ready seed.  This type of competitive business practice is one that eventually creates a multitude of problems for smaller, independent businesses, breeders, and farmers.

Antitrust and Anti-Competition in America

Antitrust laws are not a new concept in American society.  Antitrust laws are statutes and regulations that are designed to promote the overall competition in the market by promoting free, open, and competitive markets.  Congress passed the first antitrust law in 1890 when it wrote the Sherman Act, which made it illegal for companies to enter into agreements to compete with one another, resulting in price fixing and monopoly power.  Several years later, in 1914, Congress passed the Clayton Act and Federal Trade Commission Act to protect American consumers by giving the Federal Trade Commission (FTC) and the Department of Justice (DOJ) the authority to oversee and review mergers and acquisitions that are likely to stifle competition.  Under the Hart-Scott-Rodino Act, the FTC and DOJ review most of the proposed transactions that affect commerce in the United States and either agency can take legal action to block deals that it believes would “substantially lessen competition.”

While these laws are all beneficial in theory, their implementation in the agricultural industry has been lacking to say the least.  According to a study in 2018, Bayer alone is estimated to control 35% of corn seed, 28% of soybean seed, and 70% of cottonseed in the global market!  Even more alarming may be the USDA’s 2014 report citing concerns that glyphosate-resistant crops have become ubiquitous with American agriculture with 93% of soybeans, 85% of corn, and 82% of cotton planted being genetically modified to be glyphosate-resistant.  The herbicides that are used to combat the weeds surrounding the crops, in many cases, are supplied by the same company that provides the seeds.

Promoting Competition in the Agriculture Industry

It has been almost a century since the first antitrust laws were enacted, and yet the problem of corporate consolidations remains in many industries across America.  On July 9, 2021, the Biden Administration signed an executive order aimed to promote competition within various industries in the United States.  The order includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy.  According to the Administration, this order is a “whole-of-government” approach to drive down prices for consumers, increase wages for workers, and facilitate innovation. This was a major step in the right direction to weaken the power that major businesses have obtained as a result of corporate consolidation in industries like healthcare, technology, transportation, and especially agriculture.

This Executive Order also established the White House Competition Council to drive forward the Administration’s whole-of-government effort to promote competition.  On September 10, 2021, the Competition Council held its inaugural meeting to discuss promoting pro-competitive policies and new ways of delivering concrete benefits to America’s consumers, workers, farmers, and small businesses.  During the meeting, the heads of the Department of Health and Human Services, the Department of Transportation, the Department of Justice, the United States Department of Agriculture, and the Federal Trade Commission briefed the council members on their efforts to implement the directives of the Executive Order.

The Challenge of Facing the Consolidated Agriculture Industry

According to an October 20, 2021 report by Thomson Reuters, Tom Vilsack, the U.S. Secretary of Agriculture, said that the Biden Administration plans to take a hard look at the consolidation of the seed industry and figure out “why it’s structured the way it’s structured” and “whether these long patents make sense.”  The White House Competition Council is certainly faced with a difficult challenge to parse through both anti-competition law and intellectual property law.  For centuries these bodies of law have caused great debate.  One body of law restricts monopolization wherein the later grants monopolistic opportunities.

There is no doubt that any changes to the current seed industry scene would shake things up.  But what exactly would that look like?  Are we going to see the “Big-4” morph into another, new identity?  Are changes to the patent law system likely?  Whatever happens, the agriculture industry will likely pay close attention to the actions of the White House Competition Council over the next couple months.

Article By Reinier R. Smit of Summa PLLC

Copyright 2021 Summa PLLC All Rights Reserved

Top Legal Industry News November 2021: Law Firm Pro Bono, Innovation & Hiring

Happy November! Read on for the latest updates in law firm moves, pro bono and awards:

Law Firm Professionals on the Move

Beveridge and Diamond welcomed Alyse Constantinide to their Environmental Crimes Defense and Internal Investigations practice in Washington, DC. Ms. Constantinide is a former Deputy Chief at the US Attorney’s Office for the District of Columbia, and she serves as counsel on high-stakes compliance and enforcement matters, as well as white collar litigation and internal investigations.

“We are delighted that Alyse chose B&D for the next phase of her already impressive career and to help expand our significant capabilities in the area of environmental crimes defense. Alyse joins a distinguished group of former senior U.S. and state government officials who now call B&D home,” said Kathy Szmuszkovicz, Beveridge and Diamond’s Managing Principal.

Joseph Rillota joined Miller & Chevalier Chartered as a Member of the firm in their Litigation practice. Mr. Rillota was a former trial attorney at the Tax Division of the Department of Justice (DOJ) as well as an investigator for the Internal Revenue Service (IRS) and represented clients in civil litigation at the U.S. Tax Court in a variety of tax-related matters.

“Miller & Chevalier is well-known for providing unmatched counsel based on its members’ distinct combination of federal government and private sector experience, and I look forward to guiding clients through the most complex legal issues. I am excited to be an immediate contributor to the firm’s dedication to collaboration and exemplary client service,” said Mr. Rillota.

“Joe is a highly respected practitioner, whose exemplary reputation in both civil and criminal litigation make him a terrific addition to our team. His deep knowledge extends to several of the firms’ core practices, including tax, white collar, and international, and he will greatly benefit our clients and colleagues,” said Kathryn Cameron Atkinson, Chair of Miller & Chevalier.

Foley and Lardner LLP promoted Christopher McKenna to serve as Managing Partner of its Boston office, and Anne Sekel as Managing Partner of its New York office. Both assumed their roles November 1, 2021. Mr. McKenna practices in the areas of intellectual property and serves as counsel to technology companies to help protect their assets. Ms. Sekel represents clients in all phases of labor and employment-related matters, and she also serves as the Litigation Chair of Foley’s New York office.

“On behalf of the firm, we are delighted that Chris and Anne have accepted the roles as office managing partners. Chris has been at Foley for 11 years and has successfully demonstrated his leadership ability in various roles throughout his career here. Anne started with Foley as an associate 15 years ago and has stood out as an exceptional leader both at the firm and in the community. I am confident that both Chris and Anne will serve the firm well in their new roles. We are also extremely grateful to Susan and Peter for their years of dedication and commitment to serving the firm,” said Jay Rothman, Foley Chairman and CEO.

“I’m honored to take on this new leadership role as office managing partner and build on the solid and successful foundation that Susan, my partners, and associates have laid to strengthen Foley’s national platform in Boston. I look forward to further formulating and implementing the firm’s strategy to expand Foley’s presence in the market and best serve clients in the city’s prospering industries and businesses, as well as continuing our longstanding tradition of giving back to our community,” said Mr. McKenna.

“The talent we have in New York is remarkable. I feel privileged to have the opportunity to lead our office and continue our dedication to professional excellence and first-rate client service. As a steward of the office, I also want to preserve and foster the wonderful culture of both collaboration and individualism that Peter and our colleagues have carefully cultivated here. I’m eager to grow the New York office consistent with our firm’s strategic goals and to strengthen our connections with the firm’s local community, including through our partnership with the Boys & Girls Clubs of America,” remarked Ms. Sekel.

Barnes and Thornburg announced that their new Managing Partner, Andrew J. Detherage will assume his role in November of 2022, taking over for Robert. T. Grand, who served as the firm’s managing partner for the last seven years. Mr. Detherage joined Barnes and Thornburg in 1990, and he currently serves as the Chair of the firm’s Strategic Planning Committee, and Co-Chair of the Insurance Recovery and Counseling Practice. Mr. Detherage also aided in opening multiple firm locations for Barnes and Thornburg in recent years.

“I am humbled and honored to be elected as Barnes & Thornburg’s next firm managing partner and look forward to continuing to work closely with Bob, the Management Committee and the Strategic Planning Committee over the next year. Bob’s leadership has marked an extraordinary period of growth and prosperity for the firm, and I couldn’t be more excited to continue on that path while doubling down on our commitment to our lawyer-focused culture, DEI, and delivering exceptional client service,” said Mr. Detherage

“Having known and worked side by side with Andy during most of my career, I am confident that the future leadership of Barnes & Thornburg is in excellent hands. He cares immensely about this firm and all of its people, and he will be a passionate and thoughtful steward for the organization as we embark on the next chapter of our progress and development,” said Mr. Grand.

Law Firm Pro Bono & Legal Industry Recognition

Proskauer Rose LLP’s William G. Fassuliotis recently received the 2021 Outstanding Pro Bono Service Award from the New York City Bar Justice Center’s Veterans Assistance Project. An associate in the firm’s Litigation Department, Mr. Fassuliotis has an ongoing pro bono practice, where he provides legal services for disabled veterans.

“The claims process is supposed to be non-adversarial, but too often that concept is lost in the slow and difficult system disabled veterans have to endure to receive the benefits they are entitled to under the law,” writes Mr. Fassuliotis in a blog post. “Individuals who have sacrificed so much to serve all of us deserve a better system.”

Kurt M. Denk, Executive Director of the City Bar Justice Center, said of the award, “We are extremely proud of this year’s recipients of our Outstanding Pro Bono Service Award. Our volunteers have demonstrated an exceptional commitment to providing life-changing legal assistance to our clients as they continue navigating the effects of the pandemic – a crisis that has taken a serious toll on those already experiencing socioeconomic and systemic barriers.”

The Greater Chicago Legal Clinic (GCLC) named King & Spalding its 2021 Charles J. O’ Laughlin Memorial Award recipient at its A Justice Social event on November 4. The GCLC recognized King & Spalding for its “exceptional commitment to providing pro bono legal services to members of marginalized communities in Chicago and across Illinois.”

GCLC specifically recognized King & Spalding’s trial team’s victory in a case that has significance for transgender prisoners in Illinois. The firm represented a former Illinois inmate in a civil action seeking damages relating to his confinement.

GCLC also recognized King & Spalding for other pro bono matters representing immigrants, capital defendants, and individuals covered by the Deferred Action for Childhood Arrivals (DACA) program.

The Best Lawyers in America® included 36 attorneys from Allen Matkins Leck Gamble Mallory & Natsis LLP in its 2022 edition.  David Cooke received “Lawyer of the Year” in San Francisco for Environmental Litigation, and Emily Feder is featured on the “Ones to Watch” list. The complete list of attorneys who received recognition can be found here.

Further, Allen Matkins received multiple Tier 1 Rankings in Best Lawyers. At the national level, the firm received awards in Real Estate Law and Environmental Law, Land Use & Zoning Law. At the metropolitan level, the firm received awards for Environmental Law and Real Estate Law in Los Angeles and Environmental Law in San Francisco, among many others.

Managing Intellectual Property named Zack Higbee and Dan O’Connor, senior associates at Alston & Bird LLP  as “2021 Rising Stars”. Mr. Higbee and Mr. O’Connor are both members of the firm’s Intellectual Property practice group and have much experience in patent prosecution, patent solicitation, portfolio management, and IP counseling.

This award is the latest in a series of recognitions for Alston & Bird’s Intellectual Property practice. Previously, Managing Intellectual Property ranked three of the firm’s IP practices at the national level and two at the state level, as well as naming 11  Alston & Bird partners as  “IP Stars” in June of 2021.

Legal Industry Innovation

Thomson Reuters and Deloitte Tax announced an alliance to transform corporate tax and legal departments’ workflow and digital processes. The partnership combines Thomson Rueters’ software and Deloitte’s consulting and technology to assist in-house legal teams with compliance and regulatory matters.

“Now more than ever, digitization is becoming crucial to the effectiveness of tax and legal departments. Through this alliance, we will deliver tailored technology implementation solutions to help position our clients to focus on what they do best — deliver enhanced value in their organizations, leveraging robust data for decision-making and cost control, backed by the unmatched global breadth and depth of Deloitte and Thomson Reuters,” said Steve Kimble, chairman and CEO, Deloitte Tax LLP.

The partnership is for firms needing to digitize their existing systems, especially in the current regulatory environment that requires digital transformation to be a top priority. A recent Deloitte survey found that only 20 percent of legal departments use tools to automate routine tasks.

“We’re thrilled to build on our longstanding relationship with Deloitte through this new alliance,” said Sunil Pandita, president of Corporates at Thomson Reuters. “Thomson Reuters and Deloitte have long worked together to support corporate tax departments as they face great transformation and change, from regulatory developments to digital disruption. We are eager to continue that relationship, as well as add a new focus around the corporate counsel. We continually see in-house tax and legal departments under immense pressure to always be fast and accurate, while combatting constrained resources and an ever-evolving business landscape. This alliance between Thomson Reuters and Deloitte will allow us an opportunity to help our customers solve their biggest pain points through content-driven technology solutions.”

Kennedys law firm announced its virtual work experience program hit 10,000 enrollments in just over a year. The virtual work experience launched last August with the goal of increasing access to legal education. This past year, Kennedys made 27 trainee lawyer offers to those who took the online course, out of the 34 offers it made in total.

Kennedys also launched a series of virtual insight events for prospective applicants, highlighting the firm’s application and recruitment process.

A student who recently attended one of the insight events said “Having attended this event I feel more confident about applying to Kennedys as it strikes me as a firm that not only cares about its culture, community and people, but also excels in its global outreach. I’m looking forward to submitting my application for a training contract in 2023 soon.”

Kennedys hosted its first virtual event in August, with the firm’s Diversity & Inclusion and CSR Managers giving insight into the firm’s global Diversity & Inclusion and CSR initiatives.

Caroline Wilson, HR director at Kennedys, said: “The virtual programme really has levelled the playing field for all applicants for work experience and to be part of the Kennedys family. It has been a fantastic way to open up access to everyone and move on from the traditional on-site work experience. That so many of our new trainees have completed the programme is testament to its success. We are extremely proud that we have had more than 10,000 students enrol on the virtual work experience programme and look forward to welcoming many thousands more from around the world in the future.”

The program is now included in law students’ coursework at both The University of Westminster and The University of Wolverhampton in the UK.

Suzanne Liversidge, global managing partner at Kennedys, said: “The virtual work experience programme has been a fantastic success and has allowed us to welcome thousands of young people into the global Kennedys family. Our innovative scheme has also provided us with an amazing pool of talent to work with, many of whom would not have had a chance to engage with us before this programme was created. Most importantly this has allowed us to help and nurture talented individuals we may never have had a chance to reach before.”

Copyright ©2021 National Law Forum, LLC
Article By Hanna Taylor,  Rachel Popa and
For more articles on legal marketing, visit the NLRLaw Office Management

Biden Signs Largest Climate and Resiliency Infrastructure Bill in U.S. History

Today President Biden signed H.R. 3684, the “Infrastructure Investment and Jobs Act” (IIJA), into law after months of negotiations on both the bill itself and the still pending “Build Back Better Act”. These two measures encapsulate the Biden Administration’s legislative priorities, many of which were rolled out during the campaign. The U.S. Senate passed the IIJA on August 10 by a vote of 69-30. Last week, on November 5, the House of Representatives passed the measure by a vote of 228-206. The months long negotiations resulted in bipartisan support for the IIJA in both the House and Senate.

Broadly, the IIJA:

Provides Funding: The funds provided are appropriated dollars, allowing Executive Branch agencies to distribute funds without further legislative action. The funds provided are for both new and existing federal programs for surface transportation, energy infrastructure, transportation safety, transit, broadband, ports and waterways, airports, drinking water and wastewater. ​

Expedites Permitting: There are several new programs created to support transmission development and streamline the permitting of new energy infrastructure, such as electric transmission

Provides New Authorities and Creates New Programs: Various federal agencies are required to develop new programs and processes, all aimed at deploying clean energy or improving cybersecurity​.

The IIJA represents a monumental investment in all types of infrastructure. However, most significantly, it will provide the largest federal investment since the New Deal in the Nation’s infrastructure and in developing the tools to curb carbon emissions and harden infrastructure to increase resiliency against the current global challenge of climate change. The Department of Energy and other federal agencies will receive $65 billion for power and grid related programs, including grid infrastructure, resiliency investments, clean energy demonstration projects and cybersecurity. An additional $7.5 billion will be available for alternative fueling infrastructure for grants to build public fueling systems, including electric and hydrogen fuels, establish alternative fuel corridors, and find ways to recycle used electric vehicle batteries to be reused as energy storage devices.

In July, our team shared the details of the bill passed by the Senate Energy and Natural Resources Committee. As signed into law, this earlier summary still accurately reflects the details of the funding that will be provided.

Implementation and Timing of Funding: Agencies will now be tasked with standing-up new or expanding existing programs to award federal funds to eligible infrastructure projects. Agency offices will work over the coming weeks to establish grant program parameters, develop, and publish solicitations for applications, set timelines for awards and oversee implementation of awarded funds.

The IIJA included deadlines for some agency actions, requiring that programs be established in 60, 90, or 180 days. Note that many of the agency offices, particularly within the Department of Energy, remain functioning without political appointees. For instance, the Office of Electricity, which will be responsible for issuing $3 billion in grants through the Smart Grid Investment Matching Grant Program, is operating under an Acting Assistant Secretary until the Senate confirms the Biden Administration’s nominee for that post. There are no legal or political impediments to getting funding programs up and running without a political appointee heading any federal office, but political influence on the pace and timing for the process may be limited.

Certain programs will automatically send funds to states through existing formula funding programs. Formula grant programs are non-competitive awards based on a predetermined formula. These programs are sometimes referred to as state-administered programs and are found throughout the federal government. Examples include the Environmental Protection Agency’s Clean and Drinking Water State Revolving Loan program, and the Department of Transportation’s Formula Funds for Rural Areas, and Buses and Bus Facilities formula grants programs. Once the states have received their federal allocations they will then make those funds available through their existing award structure, which may be competitive or formula-based.

How Your Organization Can Apply for Federal Funding Opportunities: As agencies establish parameters for new programs or develop solicitations for existing programs, it is important to engage with the agencies in this process to ensure your project will meet agency program criteria for a funding award, and to ensure solicitations are designed to support your infrastructure projects. Our professionals have had significant success in assisting clients through these processes, and successfully assisted clients in the development of grant applications for awards under both Democratic and Republican Administrations. Contact any of our professionals to learn more about what grant programs your organization may be eligible for, how to engage with the agencies, as well as apply and partner with the federal government to ensure funding is awarded for your project.

What’s Next, Human Infrastructure: The IIJA represents only the provisions in the Biden agenda that were able to earn bipartisan support. The remainder of the President’s priorities are encapsulated in a Budget Reconciliation bill, H.R. 5376, the “Build Back Better Act”, (BBBA) developed by House and Senate Democrats and requiring only a 50-vote threshold in the Senate.

For months, the Build Back Better Act and IIJA and were linked in the legislative process by President Biden and House Speaker Nancy Pelosi (D-CA) who demanded that one not pass without the other. This approach resulted in a rift between the Democratic Party’s moderate and progressive members. While the final outcome for the IIJA resulted in bipartisan votes in both the House and Senate, passage only came after a deal was struck between moderates and progressives within the Democratic Caucus to decouple the IIJA and the “Build Back Better Act”.

House Speaker Nancy Pelosi has publicly said that the “Build Back Better Act” will be brought to the House Floor during the week of November 15. Senate Leadership has made no such promise for timely action. In addition, some House Democrats and some Senators have announced they want to see the details of budget scoring – what individual provisions will cost – from the Congressional Budget Office (CBO) and the Joint Tax Committee – before proceeding. Some limited data has begun to be released by the CBO but not any numbers covering many of the most complex and controversial programs. The schedule may be accelerated if Democrats and Republicans cannot come to an agreement to increase the debt ceiling, a must-pass measure that may need to be included in the Budget Reconciliation process. As negotiations continue, the content of the legislation passed by the House is expected to be altered significantly during Senate consideration. Should that be the case, the House will vote a second time on the measure as amended by the Senate.

Article By: Tracy Nagelbush Tolk and Tiffany Ganthier from Van Ness Feldman LLP

© 2021 Van Ness Feldman LLP

CosmoKey Gets a Duo-Over – Federal Circuit Panel Reverses Finding of Ineligibility

In CosmoKey Solutions GMBH & Co. KG v. Duo Security LLC, No. 2020-2043 (Fed. Cir. Oct. 4, 2021), the Federal Circuit reversed a finding of ineligibility for claims directed to a computer authentication method.

CosmoKey’s patent is directed to an authentication method that requires a user to activate a timed authentication function on a mobile device to log into a computer. Duo Security moved for judgment on the pleadings. The district court found the claims ineligible under § 101, specifically finding that the claims were directed to the abstract idea of “authentication” at step one of Alice, and that the remaining elements were generic computer functionality at step two.

The Federal Circuit reversed. The majority first stated it was “not convinced” the claims were broadly “directed to” authentication, instead noting the focus of the claims and the specification on the activation of a timed authentication function. Nonetheless, according to the majority, answering this question at step one was “unnecessary” because the claims were eligible at step two for reciting a specific improvement to authentication that “increases security, prevents unauthorized access by a third party, is easily implemented, and can advantageously be carried out with mobile devices of low complexity.”

Judge Reyna concurred in the judgment, but did so by resolving the inquiry at step one, finding the claims directed to a “specific improvement to authentication.” He viewed the majority’s decision to skip step one and resolve the inquiry at step two as “turn[ing] the Alice inquiry on its head.” He noted that, without the step one analysis, it is difficult to determine whether “additional elements transform the nature of the claim into a patent-eligible application” of an abstract idea.

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
For more patent litigation, visit the NLR Intellectual Property Law section.

More Circuits Added to the OSHA ETS Lottery

Lawsuits challenging the COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) were filed in three additional U.S. Circuit Courts of Appeals on Wednesday, November 10, 2021. Labor unions filed lawsuits in the U.S. Circuit Court of Appeals for the Second, Fourth, and Ninth Circuits. As a result, there are now ETS-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts.

According to federal rules, the legal challenges to the OSHA ETS will be consolidated and heard by a single U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation will conduct a lottery, expected on November 16, to select which U.S. Circuit Court of Appeals will hear the consolidated litigation. The court to hear the litigation will be drawn “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each court only gets one entry, despite the number of petitions pending before each court. Until the Judicial Panel selects the U.S. Circuit Court of Appeals to hear the litigation via the lottery, all the U.S. Circuit Courts of Appeals can proceed with rulings, as the Fifth Circuit did this past weekend.

The labor unions’ move may be a move reflective of an intent by some to increase the odds that the OSHA ETS is upheld. The First, Second, and Fourth circuits all have a majority of Democratic-appointed judges. But it is difficult to predict the future of the OSHA ETS as the panel of judges to hear the case is also selected randomly.

© Polsinelli PC, Polsinelli LLP in California
For more updates on COVID-19, visit the NLR Coronavirus News section.

Don’t Use “Build Back Better” to Sabotage the False Claims Act

Congress is on the verge of setting a dangerous precedent.  As part of the Build Back Better Act, it has added two provisions equivalent to a “get out of jail free card” for Big Banks that violate federal law when they hand out billions in federal mortgage-related benefits.   The two provisions create exemptions to False Claims Act liability by creating blanket immunity from liability when banks fail to exercise due diligence, violate FHA housing regulations, or even directly violate federal laws such as the Truth in Lending Act.

It is obvious why banks want to have their federally sponsored mortgage practices immunized from exposure to the False Claims Act (“FCA”).  The FCA works remarkably well and is widely recognized as “the most powerful tool the American people have to protect the government from fraud.”   The law has directly recovered over $64.450 billion in sanctions from fraudsters since Congress modernized it in 1986.  During the debates on the massive trillion-dollar infrastructure laws enacted or debated this year, corporate lobbyists have been extremely active in successfully preventing Congress from adding any new anti-fraud measures to protect taxpayers from fraud.  As part of these efforts, they targeted the False Claims Act as enemy #1 and already have blocked one key amendment needed to close some weaknesses in that law.

With the Build Back Better Act, these corporate lobbyists have taken their opposition to effective anti-fraud laws to a higher level.  Instead of trying to repeal the FCA, they are simply exempting Big Banks from liability under that law in two new programs.  It is obvious why the Big Banks want the exemption from FCA liability.  As a result of illegal or irresponsible lending and foreclosure practices, such as those that fueled the 2008 financial collapse, banks have had to pay billions in sanctions to the United States.

Two words explain why the FCA is “the most powerful tool” protecting taxpayers from fraud:  Whistleblowers and sanctions.  If you accept federal taxpayer monies, you are required to spend that money according to your contractual agreement or the law.  The FCA’s first secret weapon is whistleblowers.  The law encourages whistleblowers, known as qui tam “relators,” to report violations of the FCA.  Whistleblowers disclosures trigger the overwhelming majority of FCA cases, and the law incentivizes employees to risk their careers to serve the public interest. The second secret weapon is how you prove liability.  Second, when an institution accepts federal monies (such as banks that operate various federally sponsored loan programs), liability can attach if the institution acts in “deliberate ignorance of the truth” when spending federal dollars.  Similarly, if payments are made with “reckless disregard of the truth,” liability can attach.  In other words, corporations (including banks) that accept federal money must ensure that these monies are spent as required by law, regulation, or contract.  Safeguards must be in place to prevent fraud.  If a bank does not have adequate compliance programs to protect against fraud, it cannot plead ignorance when the law is broken and taxpayers are ripped off.

These two key elements of the False Claims Act are precisely what the banking lobby is attempting to undermine through the Build Back Better Act.  The tactics employed by the Big Banks are somewhat devious.  They are doing an end-run around the False Claims Act by exempting themselves from having to engage in any due diligence when spending billions in federal dollars.  The banks are seeking to add language to the Build Back Better Act that will immunize themselves from liability under the False Claims Act when they make payments in “reckless disregard” to the legality of those payments.  The immunities they are seeking legalize “deliberate ignorance” in the use of taxpayer money, in complete defiance of the False Claims Act. Thus, whistleblowers who report these frauds will be stripped of protections they have under the False Claims Act, and the federal government will have no effective way to recover damages from these frauds.

What language in the Build Back Better Act creates an exemption to False Claims Act liability?

Two highly technical provisions are deeply buried within the 2135 pages of the Build Back Better Act’s legislative text. The provisions are sections 40201 and 40202 of the Build Back Better Act.  These two sections establish helpful programs that will provide needed financial support to first-generation homebuyers.  Section 40201(d)(5) would provide $10 billion in down payment assistance. Section 40202(f) would give an interest rate reduction on new FHA 20-year mortgage products to first-time homeowners with a potential value of $60 billion.  But the banking lobby has corrupted these otherwise well-meaning programs. The exemptions obtained by the banks are incubators for massive fraud.  It permits the Big Banks to escape any liability when they abuse the generosity of taxpayers and dole out billions to unqualified individuals.

How do the exemptions work?  To qualify for these taxpayer-financed benefits, an applicant simply has to “attest” that they are first-time/first-generation homebuyers.  That would be the end of the inquiry a bank would need to approve making a payment from the billions allocated in these two programs. Anyone could simply stroll into a bank and “attest” to being such a first-time homebuyer and would thereafter qualify for the federal benefits.  The banks would not be required to do any diligence of their own to confirm the borrower’s eligibility.  Willful ignorance would be legalized.  Reckless disregard in the handling of taxpayer monies would be permitted under this law.  Safeguards, such as requiring banks to adhere to the Truth in Lending Act, which requires verification of a borrower’s statements, would not apply.

Under Sections 40201(d)(5) and 40202(f), banks will not be held liable once they are lied to, even if the bank has reason to know that the borrower is not eligible for the federal payout.  Banks can spend taxpayer money even if the information on an applicant’s loan application directly contradicts the borrower’s attestation that they are a first-time homeowner.  Given the lack of any compliance standards, the temptation to engage in fraud in these programs will be overwhelming.

Permitting banks to escape liability under the False Claims Act opens the door to paying billions of dollars in benefits to unqualified persons.  Such payments rip off the taxpayers and severely hurt all honest first-generation homebuyers denied benefits.  For every fraudster who benefits from this program, an honest homebuyer will be left in the cold due to the reckless disregard of the banks.

Congress should never use a back-door procedure to undermine the False Claim Act, as it sets a dangerous precedent.  It is a devious way to undermine America’s “most effective” anti-fraud law.  Instead of undermining the False Claims Act by granting immunities to Big Banks, Congress should be strengthening anti-fraud laws to protect the taxpayers and ensure that the trillions of dollars spent on COVID-19 relief programs and infrastructure improvement are lawfully spent in the public interest.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.
For more articles about banking and finance, visit the NLR Financial, Securities & Banking section.

2021 Guide: The Importance of Online Reviews for Law Firms

Welcome to 2021 — where our buying decisions are ruled by stars. Where we value a five-star review as much as we would a personal recommendation from an old friend, and anything less than 3 stars isn’t worth a second thought. Like it or not, here we are in the consumer-driven age of online reviews.

When looking into a product or service, nine times out of ten we do an online search first. Whatever the search results fetch for us, we click through. We read reviews, we count the number of stars, and 90% of us base our buying decision on what the reviews say.

In fact, 72% of consumers trust online reviews as much as they would a recommendation from a personal friend. It goes without saying that online reviews can be an incredibly valuable tool for your law firm. Beyond the psychological impact that they have on consumers buying decisions, it can also help boost your local SEO rankings so that your law firm shows up first when people are looking for a lawyer in their area.

However, many lawyers may be hesitant to ask their clients for online reviews, since they assume one bad review can taint their online reputation. Out of fear of straying from the particular image they hope to convey online, they prefer to have no reviews at all.

What a mistake this is.

You can think of your online reputation like a credit score. No established credit is the same as bad credit. No review is the same thing as a bad review. Whether it’s for a burrito or a lawyer, consumers want to see online reviews.

Prospective clients want reassurance about a lawyer, so they are looking for law firm reviews before making their decision.

A Google Business Profile Is Key

A recent survey asked legal consumers what their steps were after searching for a lawyer on Google. Almost 30% replied that they would google lawyer reviews and read the reviews on a business’s Google profile while just under 20% said that they would read a review on another website. This goes to show that Google is one of the most important places where you should have online reviews for your law firm.

Although there are many different review websites that people go to to make their buying decisions, Google should be lawyers’ primary concern. Setting up a business profile on Google is totally free, and it can be a fantastic tool for generating leads.

How Google Reviews Benefit Your Law Firm

Increased Online Visibility

Google tracks your law firm’s ratings and will boost your visibility based on how many ratings you have. If you can manage to get enough ratings, you can push your law firm to the top of Google search results which lists the first three businesses in the area that match a user’s search query. This is known as Google local pack, and they come directly from the Google My Business directory. Again, another reason that your law firm should have a Google business profile.

People Trust Google

A good review on Google has the potential to sway even the most skeptical of customers. 74% of consumers say that a positive review on Google makes them more inclined to trust a business. Simply put, people look to Google as their one-stop internet concierge to show them what’s hot and what’s not.

Google Customer Interaction = More Leads

Google bases your search ranking on how much you interact with your user reviews. So, before you think that you only have to respond to bad reviews, don’t forget that you should also be responding to the good ones. Google is paying attention and recognizes active responses.

Get into the habit of visiting your Google business profile every day and responding to every single review. Apologize when it’s necessary and say thank you when it’s called for. Think of your Google profile as a garden — you have to sprinkle it every day with customer interaction for it to blossom into a lead magnet.

Increased Click-Through Rates

When people visit your business profile and see a high rating, they will naturally gravitate towards your website. Consequently, you’ll improve your click through rate giving you an opportunity to reach your target audience even more.

Why Online Reviews of all Kinds Are Important

Although Google is ideally where most of your online reviews should be, that’s not to say that other review sites aren’t beneficial. Whether your clients review you on Google or Yelp, here is why online reviews are important for your business.

Social Proof

People are more likely to choose a lawyer if they can find a review telling them that it’s a good purchase decision. Social proof has a huge impact on sales and can be the driving decision between choosing your law firm or a competing one. If a lead sees your law firm listed as a five-star review, they’re going to believe that it’s worth the hype. The more feedback you can generate from prior clients, the more that you will encourage others to work with you too.

Increased Visibility

Regardless of what review website you’re on, each site has its own way of indexing content. The more customer reviews that you have the more that the website will push your business to the top. Algorithms favor your website as the authority when you have a high amount of great reviews, therefore giving your law firm more visibility.

Trust

One of the most important things that people look for in a lawyer is trust. People are looking for someone to handle their matter who they know they can count on to do it right. Each time you get a great review, you’re increasing your credibility, making you look that much more trustworthy. If your law firm has plenty of reviews claiming how great you are, then it’s going to significantly increase people’s trust in you that you’re the right person for their case.

Brand Reach

Encouraging your clients to leave you a review will increase conversation about your law firm. If customers are talking about you online, then you’ll boost your online presence, and ultimately your ranking. So, encourage your customers to share their happy experiences on as many different review sites as possible, increasing your brand’s footprint on multiple channels.

Dealbreaker

There are many customers out there who won’t purchase a service or product from a brand they don’t have any information on. Just about 2/3 of consumers make their final decision based on online reviews. So, for those consumers who need to see online reviews before they make their final decision, you need to make sure that your law firm shows up first by producing a steady stream of online reviews.

Increased Sales

There is a great deal of data out there that proves that online reviews significantly impact your bottom line. According to a Harvard study, increasing your star rating will lead to a boost of 5 to 9% sales, which clearly demonstrates that even a small improvement in your rating can have a pretty big impact on your revenue.

Reinforces Client Relationships

A lot of law firms make the mistake of assuming that you only have to respond to negative reviews, which simply isn’t true. Reviews are a wonderful way to strengthen your relationships with customers by responding to both positive and negative feedback. Reviews give you an opportunity to reinforce positive experiences by giving thanks and providing an open line to your previous clients while recognizing where you have room to grow.

Giving personalized replies to comments means that you’re giving your law firm a human face. When you have an open-to-feedback demeanor, it’s attractive to potential clients. A friendly online attitude in response to positive and negative reviews can work wonders for your reputation.

Encourages Growth

Any smart business knows that there’s always an opportunity to grow and improve. Observing your customers’ positive and negative experiences online can give you better insight as to what your clients truly want. If you get one or two reviews mentioning a specific problem, then it’s probably not that big of an issue. However, if you notice the same issues coming up several times in a row, then you know that it’s clearly an indication that you need to make a change.

By using your customers’ experience as insight, you can make improvements where necessary, and use each review as a stepping stone towards becoming the best you can be.

Tips For Handling Critique

One of the most common reasons why lawyers are hesitant to encourage online reviews is they don’t want negative critique floating around online potentially tarnishing their reputation. And while your first instinct when you see a negative review of your law firm, may be “Take it down! Sue for defamation!” that’s not always the best solution. A review that contains outright false information may be considered defamation, but is it really worth a legal battle?

So, when you get a negative review, take a deep breath and try the following.

Respond Professionally

Nothing looks more unprofessional than seeing a business come down on a negative online review with an aggressive and self-defensive response. Or worse, not responding at all. Instead, it helps to respond professionally and calmly, encouraging the unhappy client to contact you directly, shifting the dialogue away from the public eye.

When responding, always make sure that you apologize appropriately if needed, and make it clear that your number one goal is finding a resolution. Above all, always make sure that a client’s case is kept confidential. If your law firm fails to respect confidentiality in its response, it could lead to bigger issues than your online reputation.

Encourage More Positive Reviews

Since you can’t take negative comments down, the next best thing you can do is drown them out! After responding professionally to a negative review, wash it out by turning it into a small piece of a greater whole. The way that you do this is by encouraging more and more reviews.

If the majority of your online reviews are saying that your law firm is fantastic, and there are only one or two negative reviews, then they’ll usually be ignored. So, don’t be afraid to ask for reviews from your happy clients to water down the negative ones.

It’s as simple as asking your client at the end of their case by sending an email. If they had a positive experience, chances are that they’ll be thrilled to leave you one or several positive reviews online. It doesn’t take much convincing for a happy client to spread the word about their great experience.

You may even want to consider adding a review landing page on your website to provide an easy way for clients to review you.

However, it’s important to note that certain review sites like Yelp publicly state that businesses should not directly ask clients to post reviews. So, always make sure that you’re familiar with the legalities before asking a client to review you on a certain site.

Online Reviews: A Critical Part of Clients Decision Making Process

As we near 2022, we see more than ever why online reviews are important for law firms. Reviews will continue to play an important role for clients searching for a lawyer, so it’s time to start prioritizing online reviews as a part of your law firm’s marketing strategy.

In order to build a five-star reputation for your law firm, You’ll need to give your clients a reason to leave a great review.

One of the best ways to do that is by relying on legal software to automate your processes. Automation features like drip campaigns for law firms, two-way SMS text messaging for law firms, and automated appointment scheduling give each client the impression that they’re your only client.

©2021 — Lawmatics

Article By Sarah Bottorff of Lawmatics

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

8 Tips to Boost Law Firm Marketing ROI

Marketing campaigns to generate leads are a significant investment for many law firms. In return, they expect their law firm marketing ROI tactics to produce higher client conversions and be worth the investment of time. Unfortunately, some firms lack the lead capture capability to nurture leads, wasting their marketing spend.

For high marketing ROI, a law firm must-have tools and resources in place to effectively capture leads and convert them into clients. Here are 8 tips to boost law firm marketing ROI.

What is ROI?

ROI is a performance measure that evaluates the efficiency and profitability of an investment, such as marketing spend. Usually, ROI is calculated by dividing the benefit of the investment – such as leads generated – by the cost of the investment.

In some cases, ROI can be a complex calculation that considers many investments of time, effort, and money. Realistically, a lot goes into a conversion, such as attracting a new lead or signing a client, but it’s best to focus on the specific and measurable benefits with the costs for a simple ROI result.

1. Set a Standard for Law Firm Marketing ROI

Calculating ROI can be complex, but there are acceptable ranges for what an ROI should be. This provides a standard to measure future efforts against.

Your law firm marketing ROI strategy should try to set a target prior to the marketing spend, then see if the campaign reflects that target. If expectations and ROI don’t match, it’s time to reevaluate the ROI calculation, the marketing efforts, the intake process, or all three.

2. Find the Right ROI Calculation Method

Law firms should calculate ROI using the following method:

Total the investment:

Investment = Implementation Cost + Cash Cost

Calculate the net annual savings:

Net Annual Savings = Annual Savings – Annual Expenses

Calculate the ROI:

Annual ROI = Net Annual Savings / Investment

This is a standard calculation, but some firms may lack the raw data necessary or have too much uncertainty. In these cases, the marketing ROI can be simplified by creating test groups to remove as many variables as possible. Use “like-for-like” comparisons to see which efforts yield results and which don’t.

3. Hire Intake Specialists

Law firms can be busy places, so it’s possible for new leads to get lost in the shuffle. Receptionists often have long to-do lists and can’t dedicate the time and attention to nurturing leads.

Prospective clients reach out to a law firm and expect a quick response and expert consultations. If that doesn’t happen, they’ll keep searching for a firm that caters to their needs. Intake specialists can ensure each client is given the attention they need in a professional and efficient way, boosting the marketing ROI all around.

4. Provide Immediate Responses

Legal troubles can be stressful, so clients calling a law firm want a live response that eases their concern and gives them peace of mind about the process. When a client calls a law firm and gets a dedicated team to handle their case consultation, they no longer feel the need to shop around for another firm.

Professional legal call centers can give prospective clients a response within 30 seconds, or fewer than three rings. They also offer live outbound calls in response to website inquiries. This response time shows prospective clients that they’re valued, boosting the chances for conversion.

5. Implement After-Hours Support

Marketing campaigns can generate high call volumes, quickly overwhelming a law firm’s team. Worse yet, if calls go to voicemail after hours, the client is likely to continue calling firms until they find one to help.

Law firms should always have a dedicated answering service for after-hours support. These trained professionals can handle the overflow and field calls to nurture leads, 24 hours a day, seven days a week. Every prospective client will receive an instant response, no matter the time of day or night.

6. Keep Track of Leads

Lead tracking is likely part of the intake process, but it’s important to follow up and give every prospective client the care and attention they want. Lead tracking helps law firms follow through with leads along each phase of the customer journey, from initial awareness to conversion. The information from lead tracking can also be used to follow up at critical points and set up appointments and consultations.

Lead tracking can reveal flaws in the current intake process as well. Law firms can evaluate the intake process and identify areas for improvement, both for the larger goal and to enhance the client experience.

7. Create Convenient Contract Delivery Methods

The delivery and signing of a contract is a crucial step in converting a lead. Ideally, all qualified leads should be signed on the initial call, or they may seek help at competitors’ firms.

Convenient contract delivery methods solve this problem by sending fee agreements through text, email, or conventional mail to get documents signed quickly. This not only benefits the client and provides a stellar experience, but it increases conversion rates for the firm.

8. Embrace Legal Technology

Many tools are available for law firms to track profitability, manage client relationships, and monitor expenses, such as marketing investments. Legal technology offers powerful tools, such as expense tracking and reporting to keep up with expenses from anywhere, on any device. Legal technology may also feature client management to track and optimize the client relationship for better service and increased efficiency.

Workflow management may be included, which can help with client response protocols, client intake procedures, and lead nurturing. Depending on the features of the legal technology, law firms can take a lot of mystery and time out of the lead generation process.

©2006-2021, BILL4TIME. ALL RIGHTS RESERVED.

Article By Bill4Time

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

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