Chobani Sued Over “Fair Trade” Claims

  • On July 12, 2021, private plaintiffs filed a proposed class-action lawsuit against Chobani LLC. The plaintiffs allege that Chobani misrepresented its certification from Fair Trade USA, leading plaintiffs to overpay for Chobani’s products because they believed in the certification labeling.

  • Chobani became the first in the U.S. dairy industry to be certified with the Fair Trade USA seal of approval in May 2021. Fair Trade USA is a nonprofit that grants and sets standards for the fair trade label. However, the suit claims that Chobani’s immigrant laborers work in “dangerous conditions,” dealing with hazards including slippery surfaces, aggressive cows, and heavy machinery being poorly operated on dairy farms in upstate New York. The complaint relies on a nonprofit worker groups’ report that states dairy workers did not succeed in getting Chobani’s support in unionization efforts at farms from which Chobani purchases milk.

  • Chobani stated that the lawsuit is meritless and makes “unfounded attacks on Fair Trade USA, one of the most highly-regarded third-party verification programs for environmental, social and economic standards.” This lawsuit is the most recent action filed by Sheehan & Associates, which has been prolific in recent years in lawsuits against food companies.

© 2021 Keller and Heckman LLP
ARTICLE BY Food and Drug Law at Keller and Heckman
For more articles on fair trade, visit the NLRBiotech, Food, Drug section.

Supreme Court Allows Eviction Moratorium to Run Its Course

On 29 June 2021, the Court by a 5-4 vote, denied an emergency request by a group of rental property managers and trade associations to lift the stay imposed by the D.C. Circuit regarding the constitutionality of the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium. (CDC Order). By denying the request, the Supreme Court is leaving the CDC Order in place through its 31 July 2021 expiration.

Justice Kavanaugh, in a concurring opinion, confirmed that while he believed the CDC exceeded its authority, voted to allow the program to expire on its own “because those few weeks will allow for additional and more orderly distribution” of the funds that Congress appropriated to provide rental assistance to those in need due to the pandemic. This ruling means the almost-certain end of the eviction moratorium. With restrictions set to expire, states are scrambling to establish programs to utilize more than US$21.5 billion in Emergency Rental Assistance Funds (ERA). Absent state or local restrictions, tenants and landlords should be prepared for evictions to begin on 1 August 2021, while continuing to closely monitor federal, state, and local guidance.

CDC EVICTION MORATORIUM

This eviction moratorium began as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)1 signed into law in March 2020 as a 120-day eviction moratorium for rental properties that are part of federal assistance programs or are subject to federally backed loans. Some, but not all, states adopted their own temporary eviction moratoria as well. The CARES Act eviction moratorium expired in July 2020. The CDC then imposed its own eviction moratorium halting residential evictions.2 Congress temporarily extended the CDC order once, and then the CDC extended it several more times to 30 June 2021.3

With the looming 30 June 2021 expiration, and strong pushes from federal and state lawmakers to maintain the eviction moratorium, the CDC extended the nationwide eviction moratorium (CDC Order) through July 2021.4 The most recent CDC Order made clear that “this Order further extends the prior Eviction Moratoria for what is currently intended to be a final 30-day period, until 31 July 2021.”5 President Biden supported the extension for one “final” month.6

ALABAMA ASSOCIATION OF REALTORS

Landlords and realtors challenged the CDC Order throughout the country, including, most notably in a case brought by a group of rental property managers and trade associations in the D.C. District Court claiming that the CDC exceeded its authority in issuing the eviction moratorium.

As detailed in recent alerts (here and here), plaintiffs – rental property managers and trade associations – challenged the lawfulness of the CDC Order on statutory and constitutional grounds, asserting that in issuing the eviction moratorium, the CDC exceeded its statutory authority.

Joining the majority of courts addressing this issue, the District Court ruled that “the plain language of the Public Health Service Act (PSHA) unambiguously forecloses the nationwide eviction moratorium,” and ruled that the PSHA did not grant the CDC the legal authority to impose a nationwide eviction moratorium.7 The Court stayed its order pending appeal. On 2 June 2021, the D.C. Circuit preserved the stay finding that the government made a sufficient showing that it is likely to succeed on the merits.8 Plaintiffs petitioned the U.S. Supreme Court to lift the stay imposed by the District Court.9 Attorneys General for 22 states filed an amici brief with the Supreme Court urging the Court to uphold the moratorium.

SUPREME COURT DECISION

Chief Justice Roberts referred the case to the entire Court for review. The Court ruled 5-4 denying the landlords and realtors request to lift the stay. The Chief Justice, along with Justices Kavanaugh, Breyer, Sotamayor, and Kagan sided against the application to vacate the stay, while Justices Thomas, Alito, Gorsuch and Barrett voted to grant the application lifting the stay thus ending the eviction moratorium.10 In a short concurrence, Justice Kavanaugh “agree[d] with the District Court and the applicants that the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction moratorium[,]” but voted to deny the application to lift the stay in light of the final extension of the moratorium. Justice Kavanaugh reasoned that denying this application will provide those affected by the moratorium with additional time and allow for a “more orderly distribution of the congressionally appropriated rental assistance funds.”11 Justice Kavanaugh expressed his view that the CDC will need “clear and specific” congressional authorization if they attempt to extend the moratorium past 31 July 2021.12

NEXT STEPS

Although the Supreme Court did not provide immediate relief, landlords generally view the decision and Justice Kavanaugh’s concurrence as a victory by acknowledging an overstep by the CDC. In the short term, federal, state, and local governments will have the next few weeks to appropriate rental assistance funds to those in need before the moratorium expires.

The Biden Administration has also proposed actions to stabilize homeownership and the housing market. These actions include providing guidance, allocating, and accelerating the delivery of resources for more than US$21.5 billion in ERA funds; urging state and local courts to participate in eviction diversion efforts; and convening a White House summit for immediate eviction prevention plans.13 Landlords, tenants, and servicers should monitor the rapidly changing state level requirements and guidelines to ensure compliance.

1 Pub. L. No. 116-136, § 134 Stat. 281 (2020).

2 85 Fed. Reg. 55,292 (Sept. 4, 2020).

3 Id.

4 Rochelle P. Walensky, CDC, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 (June 24, 2021).

5 Id.

6 Press Release, White House, “FACT SHEET: Biden-Harris Administration Announces Initiatives to Promote Housing Stability By Supporting Vulnerable Tenants and Preventing Foreclosures.” (June 24, 2021). available at

7 Memorandum and Order on Plaintiffs’ Motion for Expedited Summary Judgment, Defendants’ Motion for Summary Judgment and Partial Motion to Dismiss, Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Human Serv., 1:20-cv-03377 (D.D.C. May 5, 2021).

8 Order, Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Human Serv., No. 21-5093 (D.C. Cir. June 2, 2021).

9 Application (20A169) to vacate stay, Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Human Serv., No. 20A-____ (U.S. June 3, 2021).

10 Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Human Serv., 594 U.S. ___ (June 29, 2021).

11 Id.

12 Id.

13 Press Release, White House, “FACT SHEET: Biden-Harris Administration Announces Initiatives to Promote Housing Stability By Supporting Vulnerable Tenants and Preventing Foreclosures.” (June 24, 2021).

Copyright 2021 K & L Gates
For more articles on the eviction moratorium, visit the NLRReal Estate section.

7 Questions to Ask Before Hiring a Crisis Communications Firm

Crisis communications is a sub-specialty of the public relations profession that is designed to protect and defend an individual, company, or organization facing a public challenge to its reputation.  Crisis communications is aimed at raising awareness of a specific type of threat, the magnitude, outcomes, and specific behaviors to adopt to reduce the threat.

                                                                            – Wikipedia

Over the last 20 years, we’ve learned five great lessons about crisis communications:

  • Crisis communications is very much different from “regular” public relations.  Quite often, the advice we give is counter-intuitive to the traditional practice of PR.
  • The ubiquity and speed of the internet has changed everything.  It’s more than likely your bad news is going to break on social media, not on TV or in tomorrow’s newspaper.  Today, rapid, accurate communications are critical to your crisis response.
  • You can’t learn crisis communications (along with sister sub-specialties crisis management, risk management, risk communications and issues management) from books, blogs or from relatively minor scrapes with small problems.  Proficiency in these specialties comes from having had previous careers in corporate communications, television news, traditional journalism, digital platforms and political campaigns, along with constant cross-training with other team members, combined with facing hair-on-fire situations with clients day after day.  Malcolm Gladwell’s 10,000 hours to proficiency rule isn’t terribly far off the mark.
  • More often than not, we’re not just helping people figure out what to say, but instead helping them figure out what to do.  A general rule of thumb: more often than not, you’ll be punished not for what you did, but for what you did after it happened.
  • There must always be someone in the room willing to speak truth to power.  And if it’s truly a crisis situation, you can be sure there will be attorneys present who too-often insist on saying “no comment,” focused narrowly on winning in trial, even though 97% of all cases filed in court never go to trial.

Another thing we’ve noticed, especially over the last few years, is the sheer number of PR firms now claiming to offer crisis communications services.  If a PR agency is already selling marketing plans, new product launches, social media management, brand building, employee engagement, investor relations and digital marketing, it’s a simple matter to add “crisis communications” as an agency specialty without having truly experienced professionals on staff to deliver that service.

The business model for most public relations firms is similar to that of law, accounting and architecture firms.  The senior people bring the work in and push it down to less-experienced (and lower-paid) junior people. (By the way, that’s not the model you want when you’re facing a make-or-break crisis.) Certainly, there are exceptions to this.  The largest PR firms in the country have dedicated crisis comm units dealing with a steady stream of crisis situations, continually honing their expertise.  But for most PR firms, real crisis work is usually a very small percentage of their total billable hours. That means there’s little opportunity for the team to build the expertise crisis situations require.

So, if every PR firm claims to offer crisis communications, how do you make sure the firm you’re calling isn’t overstating its abilities?  One place to start is with these seven questions:

  1. Can the PR firm share a list of clients for whom it has provided crisis communications or issues management services?
  2. Can you get a list of case studies that describe, in some detail, what the firm did for clients facing a similar situation to yours?
  3. Ask for the firm’s experience with crisis situations involving social media. Today, reputations built over years can be shattered in minutes on Facebook or Twitter.
  4. Ask specifically who you’ll be working with on a day-to-day basis, their experience and examples of similar situations they’ve worked on.
  5. Ask if the firm writes crisis communication plans and what goes into those plans. Even if you don’t need a plan right now – or don’t have time to build one – you’ll learn how deeply the firm is immersed in crisis communications.
  6. Ask what kind of training the firm provides, who provides that training and the depth and breadth of their experience.
  7. And, perhaps, the most important question: What percentage of the firm’s overall work would be considered “crisis” work? If the answer is 10%, 20% – even 50% – think about whether you want communications about your crisis in the hands of a firm that does something else half the time or more.

Finally, remember: you can’t talk your way out of a crisis. Your communications need to be backed by action and commitment to follow through.

When you’re choosing a firm to be your crisis communications partner, make certain to choose one that can walk the talk – a firm that’s earned its reputation for knowing its way around a specialty very few communication firms have mastered.

© 2021 Hennes Communications. All rights reserved.
For more articles on the legal industry, visit the NLRLaw Office Management section.

How Law Firms Can Create & Communicate Successful DEI Initiatives

With law firms beginning to return to in person work following the COVID-19 pandemic, the legal industry is facing a number of challenges surrounding diversity and inclusion. As workers return to the office, law firms are embracing diversity, equity, and inclusion (DEI) initiatives to create more inclusive workplaces. However, simply creating a DEI initiative isn’t enough to truly spark change within a law firm.

To discuss these topics, GCC Portfolio hosted a webinar on DEI & E-relationship building  moderated by Deb Knupp, Managing Director at GrowthPlay, featuring panelists Tasneem Khokha, Managing Director at GrowthPlay and C.L. Nathanson, Founder and President of GCC Portfolio.

For law firms looking to create DEI initiatives, it’s important to understand the current state of DEI in the industry, how to engage employees when creating initiatives, and how to communicate these initiatives to clients.

What is the Current State of Diversity, Equity and Inclusion in Law Firms?

There are three key issues that are top of mind for law firms as people return to the office, including the impact of the pandemic on staff and attorneys of color, Ms. Khokha said.

“There is clearly a disproportionate impact of the pandemic on people of color. It’s very likely for firms that have diverse talent pools that their staff and attorneys of color will have been disproportionately affected,” Ms. Khokha said. Related to that, Ms. Khokha said firms must recognize how working from home during the pandemic disproportionately affected women and primary caregivers.

“The second thing I’m seeing is that firms over the last year have had to really get their arms around the impact of the racial upheaval in our country over the past year, and the particular impact of that on black and Asian American communities,” she said. “Thinking about that impact on the mental health and wellbeing of our colleagues is important as well.”

Even though law firms are facing challenges surrounding racial diversity in the workplace, the COVID-19 pandemic created opportunities for firms to approach talent development in new ways.

“Some of the old ways of thinking about face time in the office have been really challenged in the past year. We have some ways to think about talent development in a way that may be truly more equitable,” Ms. Khokha said. “On the one hand there are some real challenges. There are informal communities and structures within law firms that don’t always include diverse populations the same way they do majority counterparts.”

Ms. Khokha explained that even though working from home created new challenges for law firms during the COVID-19 pandemic, there are some new opportunities created by remote working as well.

“Firms are really thinking about what working from home has taught us about talent development and management,” Ms. Khokha said.

Even with the improvements remote work brought to talent development, it’s also important for firms to remember that not all employees will have the same experiences returning to in-person work.

“Returning to the office won’t be a one size fits all,” Ms. Knupp said. “People will be bringing different experiences. Setting the conditions for looking at the impact on professional development and some of those more informal relationship building channels will be critical things to see with fresh eyes and empathetic hearts.”

In addition to empathy, law firms must also consider how DEI may impact client relationships. Law firms that invest in DEI initiatives will not only see an impact on employee wellbeing, but on the firm’s bottom line and its relationship with clients as well.

“The business case for DEI is stronger than it ever has been,” Ms. Khokha said. “Diverse teams create better outcomes for clients as well as more employee engagement. Notwithstanding, the progress on DEI in the legal industry has been really incremental. Now more than ever, we’re all focused on DEI as a part of our businesses as a factor important to our success.”

How to Create Diversity, Equity and Inclusion Initiatives at Law Firms

Ms. Khokha said a pitfall for firms to avoid is undertaking a DEI initiative as a performative act rather than a strategic one.

When creating diversity initiatives, firms need to ground DEI efforts in a thorough assessment of where the firm is, and create goals around what the firm needs and the issues that need to be solved for. Firms also need to center DEI initiatives around the firm’s values to ensure they are long term solutions, and commit to allocating resources to support the initiative.

“When I see firms getting this right, a few things that I see [firms doing] is to commit the adequate resources. Too often we see firms investing in DEI efforts because there’s some impetus that creates a desire to engage in these efforts,” Ms. Khokha said. “And yet, if we don’t adequately commit the resources necessary to do that well, it’s likely our efforts won’t be strategic or sustainable.”

What Questions Should Law Firms Ask Themselves When Developing a Diversity, Equity and Inclusion Program?

Ms. Khokha said firms need to recognize the complexity surrounding DEI initiatives and address them in a multifaceted way. This includes thinking about the way firms communicate these initiatives, and ensuring they’re sustainable. Specifically, Ms. Khokha recommended firms ask themselves the following questions when developing a DEI strategy:

• Why is this important to us?

• Who are our key stakeholders?

• What are our key messages?

• How are we going to communicate this in a way that reflects our values and priorities?

“The best firms recognize that DEI is not something that simply stops with those who have a JD,” Ms. Knupp said. “You see stellar results when your firm has the capacity to embrace [diversity].”

How Can Firms Connect & Communicate DEI Initiatives to Employees?

When engaging employees through DEI, law firms need to recognize that DEI initiatives are an ongoing commitment rather than a one size fits all solution. Additionally, when recognizing diversity efforts at a firm, highlighting success through including diverse groups is important.

Specifically, Ms. Nathanson highlighted Barnes & Thornburg’s efforts to focus on diversity through its holiday card selection. The firm’s BTBlack Talent Resource Group commissioned two black artists to create an image for the holiday cards. The firm also established a nonprofit foundation funded by employee contributions to focus on social and racial justice issues, and raised over $300,000 this year so far.

“Talking about [DEI] and going in with total empathy to the group you’re speaking with and listening gives you the opportunities to hear what the differences are,” Ms. Nathanson said.

However, even when firms have successful DEI initiatives, there’s often a push and pull between law firms and their clients on the ability of DEI to support diverse lawyers, Ms. Kohkha said.

“We see effort after effort among law firms to increase diversity, to support their diverse lawyers, and we’re consistently seeing clients saying that law firms aren’t doing enough. The progress is too slow and incremental and they want to see more,” Ms. Khokha said.

To solve this, clear communication about DEI efforts is key between law firms and clients. Additionally, to engage employees, firms must create buy-in for the opportunities that exist, Ms. Khokha said.

“It’s so important to explain what [DEI] is,” Ms. Nathanson said. “It’s also bottom line improvement.”

Copyright ©2021 National Law Forum, LLC

Five Critical Tips for Writing Newsletters and Alerts That Get READ

During the Covid pandemic, I’ve been delighted to see how often lawyers write alerts and newsletters to inform clients and prospects of new cases and developments. Having had the opportunity to read dozens of such materials across practices and offices, I’d like to offer five top tips that could significantly increase their value, impact, and reader engagement: 

  1. Write like People magazine, not a treatise.

    Even sophisticated readers prefer a light skim to a dense slog. Use short sentences, short paragraphs, small words, colloquial language, no legalese or case citations.  Write like you’re explaining the issue to a smart middle schooler and you’ll have happier, more engaged readers.  Help them skim with informative headings, bold type, etc. This applies to all marketing communications, including blog posts, LinkedIn articles and status updates, etc.

  2. Keep it short.

    Today’s Internet readers want one page, max. Offer simple, practical advice to help them save money, stay out of trouble, or do their job better and they’ll look forward to your next alert. Consider―they don’t need official case names or citations, or the lengthy formal name of the court or district it’s in. And don’t repeat numbers in parentheses, like “three (3).”

  3. Grab them with a simple, bold headline.

    Capture their attention and imagination with a short, powerful, useful headline. Your readers are busy, and they may get 100+ emails a day and 50 other law firm alerts and newsletters.  Your alert is an interruption, the headline and Subject line must compel them to stop what they’re doing immediately and read our material. Think Buzzfeed.

  4. Get to the point.

    If you don’t grab them in the very first sentence, they won’t read the second one. Tell them what you’re writing about and why they should care. Make the first sentence so simple, clear, and informative that readers exclaim, “Hey, this looks really useful―I want to keep reading!”

  5. Provide analysis, not information.

    Don’t simply repeat or summarize what happened―tell them precisely what they should DO about it. Remember, you’re a law firm, not CNN, the Tribune, or National Law Journal. Our target clients can obtain the basic facts about a new court decision or piece of legislation more quickly and thoroughly from a major print, TV, or online news source.  We’re the legal experts, we must provide specific, clear, actionable advice. That is the value we provide.

© 2021 Fishman Marketing

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

The Biden Administration Takes Aim at Noncompete Clauses

Employers – in light of recent action by the Biden administration, it is time to review and evaluate restrictive covenants being used with your workforce. Courts, state legislatures, and the president are increasingly scrutinizing such covenants, including noncompete agreements.

President Joe Biden campaigned on a platform to eliminate and reduce barriers for employees seeking higher wages and better benefits. As part of this commitment, he promised to prohibit all noncompete agreements, except those essential to protecting a narrowly defined category of trade secrets. President Biden took a concrete step towards making good on this promise on July 9, 2021, by signing a sweeping executive order.

Noncompete provisions have become commonplace. According to data the Biden administration cites, approximately one-half of private-sector businesses require at least some segment of their workforce to execute noncompete agreements, affecting between 36 to 60 million workers in the United States. The Biden administration claims these agreements limit wage growth and hamper employee mobility.

In its wide-ranging executive order, the Biden administration signaled an aggressive approach to curtailing the use of noncompete agreements. The executive order declares “that a whole-of-government approach is necessary to address overconcentration, monopolization, and unfair competition in the American economy.” Of particular interest to many employers is the executive order’s directive to the Federal Trade Commission (FTC), which encourages the FTC to use its rulemaking authority to restrict and reduce — and even ban — certain types of non-compete agreements. Specifically, it provides that “the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the FTC Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

The executive order, which builds upon an executive order issued during President Obama’s final year in office, represents a potential sea change to the enforcement of noncompete agreements because it adds a layer of federal considerations to an already complex and ever-evolving array of state requirements.

To be clear, the July 9 executive order does not immediately change anything. The FTC must exercise its rulemaking authority under the FTC Act to accomplish its mission. It could be months or years before the FTC announces any specific rules. And challenges to the FTC’s authority will likely follow whatever rules the Commission ultimately promulgates.

The executive order also directs a newly created White House Competition Council to identify any potential legislative changes necessary to advance the policies outlined in the executive order. This may spur Congress to pass federal legislation in addition to anticipated agency rules. Beyond that, the Biden administration’s aggressive and prominent action on this front may inspire state legislatures across the country to evaluate their laws and potentially pass additional measures regulating enforceability of noncompete agreements. At bottom, this executive order represents an inflection point as the Biden administration aims to increase competition and wages by eliminating what it views as hindrances to achieving those goals.

While awaiting action by the FTC, employers should to take the time to scrutinize and evaluate the terms of restrictive covenants they use to ensure the restrictions are narrowly tailored. Such diligence may increase the likelihood of enforceability. In addition, employers should explicitly state the reasons for the restrictive covenants (e.g., protection of trade secrets, company goodwill, etc.). And, as always, employers need to also keep abreast of any state-law developments.

©2021 Greenberg Traurig, LLP. All rights reserved.
For more articles on noncompete clauses, visit the NLR Labor & Employment section.

How to Effectively Do Legal Research

Research is a vital part of just about any legal profession. Whether you’re still in law school or working at your very own practice, legal research plays an essential role in helping you make informed decisions, craft compelling arguments, and enhance your working knowledge. However, there’s no denying that research can be a daunting prospect for even the most seasoned professionals.

In years past, legal research meant navigating dusty old libraries and sifting through gargantuan law books. Now, however, the advent of technology and research-focused software has revolutionized the research process. More than ever before, it is critical to have a solid grasp of the best practices of results-driven research to make the most of every tool available.

Streamline your next case by following these tips for the most effective legal research.

Identify a clear focus for your research

Just like delivering an argument in court, successful research requires careful planning and preparation ahead of time. When you start researching a new case, be sure to decide on a single goal or objective that you hope to achieve with your research. Doing so will enable you to ensure that your study yields beneficial results.

Don’t get caught up in researching every little nuance and minor detail when you’ve just started researching. Instead, keep your main goal in mind and let it guide you as you begin analyzing and annotating cases, articles, and other materials. It may be helpful to write down a one-sentence mission statement for your research to help you keep your intentions in mind.

After you’ve clarified your objective, begin committing your case to heart. Memorize all the vital information in the case, determine its jurisdiction, and develop a firm understanding of the circumstances surrounding the memo. Understanding all this core information while maintaining a core focus can set you up for success later in the research process.

Organize your research

Once you have thoroughly acquainted yourself with your case and ironed out your goals, take steps to ensure your research process is orderly and organized.

Logging your research is among the most critical things you can do to optimize your studies. By keeping track of the sources you find and your methodology for referencing them, it will be easy for you to find the sources you need when you start writing and explain your research strategy.

You have multiple options available for logging your work. While you can manually write down your thoughts on paper, you can also take advantage of a CRM or document management system to keep track of your work in one place, digitally. Regardless of the method you use, the best research logging practices typically include recording the date, keywords, process, and required follow-ups for each source you find.

Use the right search terms

If you plan to use an online database or search engines in your research, draw on the details and goals you identified in your initial analysis to develop a handful of precise search terms and key phrases. For example, let’s say you have questions about Texas copyright law. In that case, your search query might consist of a few keywords like “copyright infringement” and “Texas law.” Using specific terms in your searches will make it easier to discover the most relevant results.

Additionally, you can narrow down your queries by using Boolean search terms. For example, if your search includes the keywords “copyright infringement” and “Texas law,” then search engines will return any results that feature either “copyright infringement” or “Texas law.” However, if you only want sources that include both keywords, then use a Boolean like AND between them to tell the search engine to return results that contain the specified keywords. Using Booleans in this way can help you quickly find the sources you’re looking for without having to wade through potentially unnecessary results.

Draw from diverse sources

When you’re conducting legal research, it’s a good rule of thumb to try and draw from many different kinds of sources. Consider referencing a blend of primary sources, such as the original case and witness testimonies, as well as secondary sources like commentaries, dictionaries, and journals as you conduct your study. In the process, you’ll assemble more comprehensive information supported by a varied assortment of authorities.

Even cases that lack the outcome you desire can provide helpful insights for your purposes. For example, a case that ended in a guilty verdict can still offer valuable examples and precedents to consider as you’re building a defense closing argument.

Additionally, finding one relevant source can naturally lead you toward many others. Let’s say you find one law review that’s filled with helpful information. The chances are that this article will provide a treasure trove of references to other similarly valuable resources. Legal databases can make this process even more accessible, as many platforms have built-in functionality that can direct users to related articles, headnotes, and other sources.

It may be tempting to limit yourself to only the most recent sources for your research. However, that should not always be your tactic. Even decades-old cases can contain crucial details or set important precedents that affect your current project – provided that they haven’t been overruled or the law hasn’t changed in the meantime, of course.

Pace yourself where you can

One unfortunate reality that every lawyer must face in their career is that legal research rarely leads to the correct answer on the first try. Research can be inherently time-consuming, and it can be easy to get sucked into an endless loop of churning through databases searching for the perfect statute, article, or case.

However, the best researchers know when to stop. As you research, remember to take a step back every so often to evaluate your progress. If you find yourself encountering the same sources time and again, or if you’ve made all the headway you can realistically accomplish given your project’s timeframe, then it may be time to take a break or move onto writing.

Takeaway

There’s no denying that legal research can be an overwhelming process. However, taking steps like these to boost your efficiency and manage your time can empower you to overcome even the most challenging research-related tasks.

© Copyright 2021 PracticePanther
For more articles on the legal industry, visit the NLRLaw Office Management section.

5 Cybersecurity Risks and 3 Obligations for Law Firms

Law firms have recently become prime targets for cybercriminals seeking to steal, expose, sell, or otherwise extort confidential information.  Both the digitalization of law firms’ sensitive documents and the increase in means available to perpetrate an online crime exacerbate these risks.  Law firms encounter various cybersecurity risks from “insiders”—personnel within the company—and external persons.

As a response, many law firms have adopted cybersecurity obligations to protect its clients’ data and the firm’s integrity and reputation.

Main Cybersecurity Risks Facing Law Firms

Law firms naturally handle sensitive client data and confidential company information.  The lack of strong internal controls and compliance programs leaves law firms open to cyber-attacks. These attacks can be committed by insiders within the firm as well as external actors.  Some examples of cybersecurity risks for law firms include the following:

  • Data breaches: This risk involves the theft of personal or sensitive data from law firms and can be perpetrated for a variety of reasons including financial gain or retaliatory purposes.  Cyber criminals will typically execute these attacks by accessing the law firm’s computer from a remote location, collecting the personal or sensitive data, and distributing it to third parties.

  • Ransomware: Ransomware involves encrypting the law firm’s important files and demanding a fee—or ransom—in order for the cyber criminal to restore the file for the law firm’s use.

  • Phishing: This scam involves sending a scam message to an individual(s) in the hopes of getting them to send back confidential information.  This risk is especially prevalent in law firms due to the high volume of emails sent from external persons.  If severe, the attorney’s entire email account could be hacked, thus revealing mounds of sensitive client details.

  • Website attacks: Attorneys visit multiple legitimate websites in a day as a part of their daily responsibilities.  Criminals and hackers exploit this by infecting the computers of individuals who visit less secured websites.

  • Miscellaneous cyber threats: Additional threats to law firms’ security include (1) malpractice lawsuits that follow a breach and (2) cyber-crimes committed by insiders.  A client can file a malpractice lawsuit where they believe their attorney has failed to maintain adequate safeguards over their sensitive information.  Further, insider threats can originate from former disgruntled employees or current personnel members and are often very challenging to detect because these individuals often have access to the computers storing the data.

“By the time law firms notice the breach, it may have already suffered financial loss, and, consequently, media attention and reputational harm.  A robust cybersecurity compliance program would help the firm secure the data against improper access and use.  In other words, maintaining strong cybersecurity policies within your firm is key to mitigating liability exposure.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

2020 Statistics on Cybersecurity and Law Firms

The American Bar Association’s Legal Technology Resource Center compiles an annual report on cybersecurity for law firms that discusses the adoption of compliance programs, types of cyber risks, and injuries caused from cybersecurity breaches.  The number of law firms reporting a security breach increased from 26% in 2019 to 29% in 2020.  Some of these results may have been impacted by COVID-19 since many law firms moved operations online—thus necessitating virtual work environments and online communications.

Security breaches analyzed in the ABA’s report were broad and included stolen computers, exploiting vulnerabilities in websites, and hacking.  Law firms experiencing viruses, spyware, or other infection within their company must expend significant amounts of time, energy, and money in correcting the issue.

A recent example, in 2019, a senior director of corporate law and lawyer at Apple was charged and indicted on insider trading charges.  The indictment alleged that the lawyer traded confidential information during a blackout period where no stock can be bought or sold.

Legal Obligations for Law Firms: Statutes on Cybersecurity

There is no federal law regulating a law firm’s cybersecurity practices and policies.  However, federal law does regulate specific industry practices.  For instance, if a law firm has a client within the healthcare, accounting, or financial industry sectors, additional federal obligations may apply.

Clients in the financial industry sector may require that their law firms maintain extra security protection due to the sensitive nature of financial data.  The same applies for healthcare companies who store confidential health records of the public.  Clients that specialize in accounting practices must comply with the Sarbanes–Oxley Act of 2002, which could impose additional obligations on the law firms representing those clients.

The failure of the law firms to properly safeguard client data in these circumstances could lead to federal investigations, lawsuits, loss of future clients, fines and penalties, and significant reputational harm.

In addition to industry standards encompassed by federal law, each state has its own laws regulating data protection.  Law firms in California must be mindful of the California Consumer Privacy Act, while law firms in New York must take account of the regulations of the New York State Department of Financial Services as well as the Stop Hacks and Improve Electronic Data Security (“SHEILD”) Act.

Law firms may also find it beneficial to adhere to cybersecurity guidelines.  The National Institute of Standards and Technology (“NIST”) is a non-regulatory agency within the Department of Commerce that provides guidelines for cybersecurity regulations for the federal government.  NIST standards are voluntary but compliance with NIST’s Cybersecurity Framework is good practice for law firms and provides good evidence that the law firm took sufficient measures to comply with cybersecurity-related laws and industry practices.

Ethical Obligations for Law Firms: Protecting Client Data and Maintaining Confidentiality

State boards are responsible for regulating the conduct of lawyers and law firms.  To do this, state boards often issue ethical opinions to guide them on appropriate cybersecurity practices within their law firms.  Specifically, U.S. law firms have to adhere to the ABA’s Model Rules of Professional Conduct.

Model Rule of Professional Conduct 1.4 requires attorneys to make sure that clients are “reasonably informed about the status of the matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Further, Model Rule of Professional Conduct 1.6 states that lawyers must make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  Comment 8 to Model Rule 1 explains that, in order to maintain the required knowledge and skill, lawyers should stay abreast of all changes “including the benefits and risks associated with relevant technology.”

ABA Formal Opinion 483 on “Lawyers’ Obligations After an Electronic Data Breach or Cyberattack” provides that lawyers have a duty to make “reasonable efforts to avoid data loss or to detect cyber-intrusion” and that an ethical violation may occur if the lawyer does not undertake these steps.

Thus, because law firms often do business with colleagues, opposing counsel, federal agencies, and clients via electronic communications, they have an obligation to ensure that all data is properly stored, secured, and safeguarded

Internal Obligations for Law Firms: Strengthening Cybersecurity from the Inside

Law firms are finding it beneficial to adopt or strengthen their internal practices to strengthen overall cybersecurity.  Examples of supplements to a law firm’s cybersecurity include the following:

  • Cyber insurance

  • Cloud backup

  • Encryption software

  • Reboot and backup policies

  • Strong firewalls

  • Risk assessment and internal controls

  • Robust cybersecurity compliance program

  • Crisis response plan for cyberattacks

  • Reliable antivirus software

  • Strong password combination

  • Strict controls over personnel access to sensitive information

  • Using only secured Wi-Fi

Conclusion

Cybersecurity breaches of a law firm’s sensitive or confidential data can lead to lawsuits, investigations, fines and penalties, and unwanted media attention.  It can not only hurt the law firm’s ability to attract clients in the future but also the reputation of the individual attorneys.

Attorneys implicated in data breaches and other cybersecurity risks undermine the attorney’s duties of competency and confidentiality.

To prevent such disastrous consequences that will follow from these breaches, many law firms follow strict legal, ethical, and internal obligations regarding strong cybersecurity practices.  Obligations such as compliance with industry standards and state laws; ABA ethical rules, and internal best practices within the law firm enable the law firm to mitigate cybersecurity risk.

Oberheiden P.C. © 2021
For more articles on cybersecurity,  visit the NLRCommunications, Media & Internet section.

Immigration and Compliance Briefing: COVID-19 Summer Scoop & Quick Tips

Since March 2020, the U.S. Department of Homeland Security (DHS), Department of State (DOS), and Department of Labor (DOL) have issued and/or revised a significant number of rules and policies in response to the global COVID-19 pandemic. Below is a roundup of the current rules/policies covering the major areas of global mobility impacted by COVID-19.

International Travel

U.S. Land Borders

  • Canada: The border between the U.S. and Canada remains closed until July 21, 2021 except for essential workers and services. As of July 5, fully vaccinated Canadian citizens, permanent residents, and certain exempted individuals are not required to quarantine upon entry or undergo an 8-day COVID test.
  • Mexico: The border between the U.S. and Mexico remains closed until July 21, 2021 except for essential workers and services.

The U.S. land borders have been closed since March 21, 2020. While the border closures are currently set to expire on July 21, they may be extended for additional 30-day periods. As a reminder, the following types of travel/travelers are exempt from the restrictions:

  • U.S., Canadian, and Mexican citizens and permanent residents returning to their home country
  • Individuals traveling for medical purposes (e.g., to receive medical treatment)
  • Individuals traveling to attend educational institutions
  • Individuals traveling to work in the U.S.
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders)
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers transporting cargo between the U.S., Canada and Mexico)
  • Individuals engaged in official government or diplomatic travel
  • Individuals engaged in military-related travel or operations

Geographical Travel Bans

Entry into the U.S. is prohibited, with some exceptions, for most travelers who have been in any of the following countries at any time within the past 14 days (including transit):

  • China; Iran; European Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino, Vatican City); United Kingdom (England, Scotland, Wales, Northern Ireland); Republic of Ireland; Brazil; South Africa; India

Exceptions to this ban include, but are not limited to:

  • U.S. Citizens and Lawful Permanent Residents (LPRs)
  • Certain family members of U.S. citizens
  • Diplomatic Travelers
  • Individuals traveling with an approved National Interest Exception (NIE)

QUICK TIP: The current COVID-19 travel bans are based on physical presence and do not ban citizens or residents of any country.

QUICK TIP: Even a layover/connecting flight in an impacted countries is enough to trigger the entry ban, so if traveling to the U.S. from a non-banned country, travelers are advised to double-check their itineraries to ensure that they do not inadvertently become subject to the ban.

National Interest Exceptions

Travelers and their derivative beneficiaries who would otherwise be subject to the geographic travel ban may request a National Interest Exception (NIE) based on their visa type and/or their intended purpose of stay in the United States.

QUICK TIP: Effective July 6, 2021, the DOS announced that approved NIEs are valid for 12 months and multiple entries. This policy applies retroactively to travelers granted an NIE within the prior 12 months. Previously, NIEs were valid for a single entry within 30 days of approval.

On June 24, 2021, the DOS updated its guidance on NIEs, including categories of individuals who are automatically considered for an NIE at ports of entry and those who may apply for an NIE at the U.S. Consulate.

Individuals automatically considered for an NIE include:

  • Immigrants (those seeking permanent residence in the U.S.)
  • Fiancé(e)s of U.S. citizens and their dependents (K visas)
  • Students (F and M visas)

Note: New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including Optional Practical Training (OPT)

Individuals who may apply for an NIE include:

  • Certain J-visa holders (exchange visitors, students, and academics; Educational Commission for Foreign Medical Graduates (ECFMG) participants)
  • Journalists
  • Travelers providing executive direction or vital support for critical infrastructure sectors, or directly linked supply chains
  • Travelers providing vital support or executive direction for significant economic activity in the U.S.
  • Travelers whose purpose of travel falls within one of these categories: 1) Lifesaving medical treatment for the principal applicant and accompanying close family members; 2) Public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research); 3) Humanitarian travel, including those providing care, medical escorts, and legal guardians
  • Travelers whose work is in the national interest of the U.S.
  • Derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive an NIE

Individuals who are automatically considered for an NIE at a port of entry do not need to apply for the NIE at their consulate in advance of their travel. Those who believe they may be eligible for an NIE should contact their local consulate for instructions.

QUICK TIP:  Approved NIEs may be noted directly in a visa or an applicant may be notified via email that they have received a digital approval. Both formats are equally valid, and travelers are advised to carry copies of the application materials and confirmation of approval with them when they travel.

I-9 Compliance

Extended Flexibility

For employees hired between June 1, 2021 and August 31, 2021, Immigration and Customs Enforcement (ICE) has temporarily waived the in-person I-9 document inspection requirement for employers that are fully remote due to COVID-19. Initially implemented on March 20, 2020, this guidance has been extended in 30 to 60-day increments since and may be extended after August 31.

To avoid inadvertent I-9 regulatory violations, employers should note the following:

  • As of April 1, 2021, an employer may utilize the flexible I-9 guidelines even if some employees are present at the worksite. However, this flexibility ends once the employee begins non-remote work on a regular, consistent, or predictable basis. This guidance does not extend to remote employees whose employment is normally remote, but only applies to remote employees who are temporarily remote due to COVID-19.
  • Prior to April 1, 2021, these guidelines applied only to employers and workplaces operating fully remotely due to COVID-19. If employees were present at the worksite, no exceptions were permitted. This guidance did not extend to remote employees whose employment is normally remote, but only applied to remote employees who are temporarily remote due to COVID-19.
  • Within three days of the remote employee returning to regular in-person employment or the termination of the flexible guidelines, whichever is earlier, the employer must physically inspect any I-9 documents that were inspected electronically in reliance on this policy. Failure to timely physically inspect these documents constitutes an I-9 violation.

QUICK TIP:  To avoid missing the three-day deadline, employers may begin the physical I-9 document inspection for individual employees prior to the return to in-person employment.

QUICK TIP:  To avoid I-9 compliance violations, employers are encouraged to conduct regular internal I-9 audits and periodically review the M-274 Handbook for Employers, guidance for completing Form I-9.

Ongoing COVID-19 Flexibilities

Additional Time For Responding To Agency Requests

On June 24, 2021, U.S. Citizenship and Immigration Services (USCIS) extended its policy granting additional time to respond to the following types of agency requests as long as they were mailed by the agency between March 1, 2020 and September 30, 2021:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny, Revoke, Rescind, or Terminate
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5

If a response to an eligible USCIS request and/or notice is received within 60 days of the stated deadline, then USCIS will consider the response prior to making a final determination.

Refiling Certain Applications Due To Delayed Rejection From USCIS Lockbox

Due to COVID-19, USCIS Lockbox facilities are experiencing significant delays in intake and processing of immigrant and nonimmigrant applications and petitions. In some cases, delayed rejections can prevent an applicant from timely refiling or cause an applicant to “age out” of a benefit. Therefore, for certain applications filed at a USCIS Lockbox between October 1, 2020 and August 9, 2021, the agency has issued the following guidance:

  • For applicants whose application was rejected solely because the filing fee expired due to USCIS Lockbox delays, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. USCIS will also waive the $30 dishonored check fee.
  • For applicants, co-applicants, beneficiaries, or derivatives who aged out of eligibility for the requested benefit due to a delayed rejection from a USCIS lockbox, the applicant may refile and USCIS will deem the application to have been received on the date the initial application was received. This does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate.

QUICK TIP:  Both petitioners and applicants should periodically review the USCIS COVID-19 Response webpage (https://www.uscis.gov/about-us./uscis-response-to-covid-19) and the websites of other government agencies for up-to-date information on guidance on COVID-19 related policies and flexibilities.

Form I-539 Biometrics

On May 3, 2021, USCIS announced that it will suspend the biometrics requirements for I-539 applicant categories (H-4, L-2, E-1, E-2, E-3) for a two-year period beginning on May 17, 2021. The suspension applies to Form I-539 applications that are 1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, or 2) new applications received by USCIS from May 17, 2021, through May 23, 2022.

© 1998-2021 Wiggin and Dana LLP
For more articles on COVID-19 travel restrictions, visit the NLRImmigration section.

Homeland Security Withdraws Proposed Rules Affecting International Students

The U.S. Department of Homeland Security announced the withdrawal of proposed new rules that would have limited the time that individuals entering the U.S., including international students, could remain in the country, absent the issuance of a new visa. The proposed rules, which were published on September 25, 2020, had been the subject of significant concern by many higher education leaders due to their potential impact upon international student retention.

Under the current rules, international students approved for an F or J category entry visa are allowed to remain in the country for an unspecified period, so long as they continue to be enrolled in coursework leading to their degree or research activity. This so-called “duration of status” policy would have been replaced by fixed terms of up to four years, under the proposed changes.

The new rules would have required a reapplication and renewal of the visa status of the student at the expiration of the term for studies to be continued. Further, in the case of countries whose students have higher visa overstay rates, the proposed rule would have limited initial student visa terms to two years.

In a letter voicing opposition to the proposed changes, the American Council on Education (“ACE”) argued that the imposition of limitations on visa duration for international students would significantly impede the educational process. As the ACE letter noted, the average time for an international student to complete a B.A. degree is slightly more than 4.5 years, and almost six years to complete a Master’s/Ph.D. program. It further concluded that the proposed rules would be “largely unworkable for the majority of students.”

The announcement of the withdrawal of the proposed rules represents a positive step for colleges and universities seeking to attract international students. It reinforces the existing student visa regime and produces a more stable environment for applicants. Yet, the announcement of the withdrawal of the proposed rules came with the acknowledgement that other changes may be necessary “to protect the integrity of programs that admit nonimmigrants in the F, J and I classifications.” Accordingly, a new Notice of Proposed Rulemaking related to the rules regarding these specific visa categories could be forthcoming.

© Steptoe & Johnson PLLC. All Rights Reserved.
For more articles on international students, visit the NLRPublic Education & Services section.

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