Hard to Say Goodbye: States Are Slowly Lifting States of Emergency

In recent weeks many states have either started lifting pricing restrictions put in place during the COVID-19 pandemic or announced their plans to do so. Still, some state governments have indicated that they will continue to hold pricing restrictions in place as a means of protecting consumer welfare as people return to normal spending habits and economies recover from the toll of the pandemic. As the country begins turning the corner toward the end of the pandemic, the landscape of state price gouging restrictions remains muddy as governors take individualized approaches to states of emergency.

Recent trends show states beginning to rescind their states of emergency. While some states’ restrictions are completely lifted, others remain in force with no clear end date.  And others have institutes partial pullbacks, such as California. Understanding the evolving landscape is critical for businesses as they evaluate their compliance programs. For one, states such as South Dakota, Montana, and Wyoming have issued indefinite states of emergency which “shall continue for the duration of the emergency.” These declarations continue to obscure the end date for pricing restrictions.

On the other end of the spectrum, a handful of governors have either rescinded their emergency orders or allowed them to simply expire. For instance Kentucky, Massachusetts, and Alaska’s orders were all terminated, while Pennsylvania and Kansas’ governors let the orders expire. Similarly, Arkansas Governor Asa Hutchinson allowed the state of emergency to expire on May 30, 2021, but the Arkansas price gouging statute continued to apply for 30 days after the end of the emergency period. California, one of the first states to partially lift its price gouging restrictions, limiting them to medical and emergency supplies, is still otherwise operating under the Governor’s emergency declaration.

A multitude of emergency declarations are set to expire in the remaining days of June 2021, including Florida, Georgia, Idaho, Illinois, Indiana, Iowa, New Mexico, New York, Oregon, and Virginia.  However, most states governors have continued to renew emergency extensions every 30 days like clockwork since the pandemic began.  Renewing these emergency declarations just as they are set to expire creates an air of uncertainty as to when a true end date will arise.

Additionally, and perhaps critical in furthering the momentum of lifting restrictions, some governors are signaling their intentions regarding extensions to the states of emergency. For example, Mississippi governor Tate Reeves has recently announced that the state of emergency will be lifted as of August 15, 2021. Ohio Governor Mike Dewine also recently announced a lifting of the state’s emergency, effective June 18, 2021. These announcements signal a step forward in governors taking a proactive approach to creating solid goal posts in ending emergency extensions. In contrast, Oklahoma Governor Kevin Stitt extended the state of emergency every 30 days since his initial order on March 15, 2020 often on or right before the scheduled expiration date. On May 3, 2021, Governor Stitt announced he would rescind the emergency order effective May 4, 2021.

The unceasing extensions in the past fifteen months have not been without contest or cost. Pennsylvania’s Governor Tom Wolf, for example, previously had the ability to enact ninety-day renewals to emergency declarations. On June 10, 2021, a constitutional amendment was approved that effectively ended the Governor’s most recent disaster declaration. Similar tensions are also evident across the country as lawmakers and voters debate whether gubernatorial emergency declarations should require legislative approval before enactment. In May, Governor Brad Little of Idaho, who also extended emergency orders repeatedly since March 2020, vetoed two Senate bills that would have limited his powers and prohibited him from extending an emergency declaration for more than 60 days without legislative approval.  These instances of legislative pushback bring to light the expansive powers—traditionally used during severe weather and natural disasters—that governors have exercised during the COVID-19 pandemic.

Moving forward, New York may become a trendsetter for outstanding states with no definitive end date for restrictions. Governor Andrew Cuomo of New York has continued to issue a declaration extending the state of emergency every 7-14 days since his first COVID-19 disaster emergency order on March 7, 2020. On June 23, 2021, Governor Cuomo made an announcement confirming he will allow the emergency order to definitively expire on June 24, 2021. It is likely that other states particularly with soon-to-expire emergencies will begin to follow suit  As COVID-19 disaster emergencies begin expiring states should be looking to the economy’s recovery and continuing improvement in evaluating whether to lift pricing restrictions and allow traditional market forces to govern pricing.

Special thanks to Myls Walker for his contribution to this post.

© 2021 Proskauer Rose LLP.
For more articles on COVID-19 states of emergency, visit the NLR Coronavirus News section.

Canada to Ease Travel Restrictions for Fully Vaccinated Individuals

The Government of Canada has announced the first phase of its plan to ease border restrictions for travelers entering Canada. Under the new policy, travelers whose vaccination status meets the criteria of “fully vaccinated” will be exempt from quarantine restrictions, mandatory hotel stays pending test results, and day-eight testing, provided all conditions are met.

Effective July 5, 2021, at 11:59 p.m. EDT, fully vaccinated individuals will not be required to quarantine or take a COVID-19 test on the eighth day of their quarantine period. In addition, fully vaccinated travelers arriving by air will not be required to stay at a government-authorized hotel. A fully vaccinated traveler must provide documentation verifying that he or she has received, “at least 14 days prior to entering Canada,” the full series of a vaccine or a combination of vaccines that are accepted by the government of Canada. It is important to note that fully vaccinated travelers are not automatically exempt from Canada’s travel restrictions, as a representative of the Canadian government will make the final determination “at the border based on the information presented at the time of entry.”

Regardless of one’s vaccination status, the following entry requirements remain in effect for all travelers entering Canada:

  • Pre- and on-arrival testing will apply for all travelers, whether arriving by air or land, to ensure that all travelers are asymptomatic.
  • Each traveler “must have a suitable quarantine plan” in case a border officer determines that the traveler does not meet all conditions necessary to qualify for an exemption.
  • Travelers must electronically submit documentation of their vaccination status or COVID-19 test results through ArriveCAN prior to arrival in Canada.

Travelers who are not fully vaccinated must continue to adhere to current requirements for testing and quarantine. Unvaccinated travelers arriving in Canada by air must also have a reservation for a three-night stay at a hotel authorized by the government to await their arrival test results.

The Canada-U.S. border currently remains closed to nonessential travel. Canada’s Quarantine Act likewise remains in effect, and local provinces and territories may continue to impose additional travel restrictions.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on Canada border restrictions, visit the NLR Global news section.

How COVID Impacted Lease Agreements, Contracts, and Business Interruption Claims

To say that most businesses were not prepared for the COVID-19 (coronavirus) pandemic would be quite an understatement. Although several countries had lived through and learned from the SARS and swine flu outbreaks, nobody was really prepared for what 2020 had in store. U.S. citizens hadn’t lived through anything remotely similar since the 1918 Spanish flu pandemic.

From a legal perspective, the business world has learned a lot in a short period of time.  The many hurdles business owners dealt with since the pandemic began—and the lessons they learned—could help all businesses be more resilient in the future. At the same time, many mistakes were made and we should learn from them.

In this article, let’s take a look at how COVID-19 impacted commercial lease agreements and business interruption practices in particular.

Commercial lease agreements

During the COVID-19 pandemic, many businesses were unable to pay rent due to unexpected declines in revenue. As a result, many distressed commercial tenants wrote to their landlords requesting a temporary pause on rent payments. Eventually, the CDC announced a residential eviction moratorium that was most recently extended until March 31st, 2021.

Unfortunately, commercial tenants weren’t so lucky. Commercial lease agreements do not typically contain force majeure provisions, nor do they cover disasters such as a pandemic.

What is a force majeure provision?

“Force majeure” refers to a provision included in contracts that essentially removes liability in the occurrence of an event beyond the reasonable control of a party to the contract (e.g., natural and unavoidable catastrophes), and which prevents said party from performing its obligations under the contract.

In other words, a party’s ability to claim relief due to a force majeure event depends entirely on the express terms of their contract. As such, force majeure events must be specifically accounted for in the contract—which, again, is not typically the case with commercial lease agreements.

Keep in mind that simply having a force majeure provision in a contract may not be enough to excuse a contractual obligation. But as a preventative measure, it’s a good starting point.

Let’s bring this back to commercial lease agreements. Unless a temporary halt of rent payments is included in the contract, it’s entirely left to the discretion of the landlord. Demonstrating a history of making payments in full and on time and making a respectful, convincing request might go a long way (or it might not).

What are impossibility of performance and frustration of purpose doctrines?

Since the pandemic began, many attorneys have argued that New York laws excuse the payment of rent under COVID-19 conditions. Under the doctrine of impossibility of performance, a government-mandated lockdown, they argue, makes it impossible for many commercial tenants to pay rent.

The doctrine of frustration of purpose has also provided a legal basis to argue for pausing rent payments. As a result of unforeseen circumstances caused by the pandemic, most business owners are unable to:

Consequently, there may be a frustration of purpose of the commercial lease agreement, and a commercial tenant’s rent payments may potentially be excused.

The question of whether it is legally viable to halt rent payments under the doctrines of impossibility of performance or frustration of purpose will continue to be heavily litigated in commercial landlord-tenant disputes so long as COVID-19 persists.

Takeaway: Moving forward, businesses can negotiate with their landlords to include force majeure provisions or unforeseeable emergency language that allows them to temporarily pause rent payments should such situations arise. We are seeing landlords add arbitration provisions, which may not be the best idea for tenants or landlords.

Business contracts

As soon as government-mandated shutdowns went into effect, cash flows dried up. Many business owners began to question the viability of their companies, reviewing virtually all of their existing contracts and subscriptions in an effort to save money during these difficult times.

Many B2B companies compromised and offered discounts to struggling clients because they couldn’t afford to lose their business.

Keep contract outlines

Business contracts can be long and overwhelming, but they are the legal roadmap for the structure of your relationship with the other party to the agreement. To help organize all the information in a contract, we recommend keeping a brief bullet-point outline for each one.

Each outline should include important information, such as:

Of course, not all contracts are created equal, so your outline should be tailored to the particular transaction in question.

If your business handles a number of contracts, we recommend having both physical and electronic copies of each contract. You should always have a copy of the fully signed contract handy.

Keep physical copies in a secure place where you can quickly refer to each contract (accordion folders are great for storage and organization). Electronic copies of fully signed contracts should be saved in password-protected files.

Know your doctrines

What if the COVID-19 pandemic is putting you at the brink of defaulting on your contract, there is no applicable force majeure provision, and the other party to the contract is not willing to renegotiate?

It may be time to see if the doctrines of impossibility, impracticability, or frustration of purpose can apply.

As we touched on above, the doctrine of impossibility of performance involves a situation where supervening circumstances make performance impossible. This doctrine is used as a defense against performing a contractual obligation (such as paying rent).

Under specific circumstances, this defense would be granted, and performance under a contract would be excused. For example, a painter would never be expected to finish painting a house that had just burned down.

The doctrine of impracticability of performance exists where there is “extreme, unreasonable, and unforeseeable hardship due to an unavoidable event or occurrence.” This is more than a mere change in the degree of difficulty or expense. It involves contractual obligations becoming excessively expensive, difficult to perform, or harmful.

The doctrine of frustration of purpose, which we touched on earlier, is another contract doctrine that might apply to you. Frustration of purpose requires the following:

Although the parameters are specific, this doctrine might be a better fit for your business than impossibility of performance or force majeure where performance or payment is not “impossible,” but circumstances still warrant relief from performance.

Takeaway: Every contract requires its own careful, individual analysis.

Business interruption insurance

Many businesses have been forced to shut down (either permanently or temporarily) due to the COVID-19 pandemic and the ensuing government shutdown orders. Consequently, many of those businesses have filed a claim with their insurance provider for business interruption coverage.

Business interruption insurance provides a business with the revenue the company would have earned had the disaster not occurred. Coverage is usually provided as part of a property insurance policy or as part of a package policy. Business interruption coverage compensates the business for lost income if a company had to vacate the property due to disaster-related damage covered under the property insurance policy.

Typically, direct physical loss or damage (like a natural disaster) would trigger business interruption coverage. Business interruption coverage can also be triggered due to the actions of civil authorities. Most business interruption coverage policies for the actions of civil authorities contain the same standard language.

What is a civil authority provision?

Civil authority provisions aim to have business interruption coverage apply when there is damage to the property of another business that causes civil authorities to prohibit access to the area where the insured’s property is located.

For example, let’s say an earthquake hit Times Square (an unlikely scenario), and authorities such as the mayor of New York City or the governor of New York State order Time Square to be closed off. This area might include businesses that would be impacted by such a civil authority order, even if those businesses sustained little to no damage.

However, most civil authority provisions also require that the civil authority order is in response to direct physical damage from a cause covered by the insurance policy. As a result, it is likely that insurance policy providers will deny most COVID-19 related business interruption claims.

An overwhelming majority of those denials are because of the lack of physical damage due to a covered cause.

Insured businesses might try to obtain business interruption coverage by arguing that COVID-19 itself caused physical damage by contaminating a property. Unfortunately, most insurance companies explicitly exempt coverage damage due to viruses and bacteria and disagree that COVID-19 causes actual physical damage.

However, filing a business claim could be advantageous. If there is ever a change of the laws that go back to the date of your claim, you could be retroactively covered.

Regardless, businesses continue to file business interruption claims. After all, if you fail to tender a claim in the allowed time period, you may lose your claim forever. Denial of claim reserves your right to an appeal in the near future.

Takeaway: Many insurance companies are being sued by business owners for denying business interruption insurance coverage. If the courts rule favorably regarding COVID-19 and physical loss or damage, businesses may be able to receive insurance coverage after an appeal.

© Copyright 2017 – 2021 Sinayskaya Yuniver P.C.

ARTICLE BY Irene Sinayskaya of Sinayskaya Yuniver, P.C.
For more articles on lease agreements, visit the NLRReal Estate section.

Ohio Supreme Court Rules that School Employees Must Undergo Training in Order to Carry Firearms on School Grounds

On June 23, 2021, in a 4-3 decision, the Ohio Supreme Court ruled that a resolution passed by the Madison Local School District Board of Education which allowed certain employees of the District to carry firearms on school grounds did not comport with Ohio law.

In 2016, a school shooting took place at Madison Junior-Senior High School, which left four students injured. In response, the District’s Board of Education approved a resolution in April 2018 “to allow armed staff” in a school safety zone, which was subsequently followed by a “Firearm Authorization Policy.” The resolution and the corresponding policy stated that some “teachers, school support staff, administrators, and others” would be permitted to carry a firearm on school grounds if the individuals: (i) were designated by the superintendent after a mental health assessment and background check; (ii) had a concealed carry license; and (iii) completed 24 hours of active shooter training.

In response, a group of parents of students enrolled in the District commenced an action seeking a declaratory judgment that the resolution violated O.R.C. §109.78(D), as well as an injunction prohibiting the District from implementing the resolution regarding District employees who did not meet the requirements of that statute. O.R.C. §109.78(D) indicates that public education institutions, such as the District, cannot “employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.”

The trial court ruled in favor of the District and held that the requirement in O.R.C. §109.78(D) only applied to “positions that inherently require the employee to be armed while on duty.” On appeal, the Twelfth District reversed the trial court’s judgment and its “limited reading” of O.R.C. §109.78(D), and held that the statute applies to teachers and other school staff who are authorized to carry a firearm while on duty by a board of education.

The Ohio Supreme Court affirmed the ruling of the Twelfth District and held that because the April 2018 resolution authorized certain employees to be armed while on duty “without also requiring that these employees satisfy the training-or-experience requirement” of O.R.C. §109.78(D), the resolution violates the statute, and does not comply with Ohio law. The Ohio Supreme Court also analyzed O.R.C. §2923.122, a criminal statute which makes illegal the possession of a deadly weapon in a school safety zone, with certain exceptions—including a caveat that the statute does not apply to (among others) “any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone….” The Court held that the exception in O.R.C. §2923.122(D)(1)(a) does not give school boards the ability to circumvent the requirements of O.R.C. §109.78(D), nor does it “constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable.”

The dissenting opinions indicated the peace officer training requirements were not applicable to teachers and other school staff, and that school districts had discretion in creating policies regarding arming teachers and other staff.

The Court also explained that when the General Assembly enacted O.R.C. §2923.122, O.R.C. §109.78 had already been in effect for more than 20 years – and further held that if the General Assembly had “perceived any conflicts between the statutes,” it could have amended either one of the statutes but did not. In response to this discrepancy, Representative Thomas Hall, whose father was the school resource officer who chased the shooter out of the building in 2016, introduced House Bill 99. House Bill 99 would give school districts throughout Ohio the discretion to allow teachers and other school staff to be armed in school so long as they have completed the concealed carry training, which is 8 hours in length. The Bill also includes proposed amendments to O.R.C. §2923.122 and O.R.C. §109.78. It remains to be seen whether House Bill 99 will be signed into law, but it is clear that the issue of armed teachers and school staff is one that is under continuous scrutiny.

©2021 Roetzel & Andress

ARTICLE BY Ahmer Sheriff of Roetzel & Andress LPA
For more articles on education, visit the NLRPublic Education & Services section.

The Empire Strikes Back — Did the DOJ Hack the Colonial Pipeline Hackers?

Now we are in no way confusing the cyber-criminal enterprise DarkSide with the plucky light-side rebels from Star Wars, but it appears the United States Department of Justice seized 63.7 bitcoins, worth $2.3 million, paid to cyber-criminal enterprise DarkSide following the May 7 ransomware attack against Colonial Pipeline. The attack resulted in a highly publicized, brief shutdown of the company’s pipeline infrastructure, which transports approximately 45% of the oil consumed on the U.S. East Coast, and which took days to resolve and create widespread gasoline shortages in some parts of the country. The seizure was coordinated through the DOJ’s recently created Ransomware and Digital Extortion Task Force, which was created to address increasing ransomware and digital extortion attacks again U.S. businesses.

The story is big news because ransoms are rarely recovered.  Typically, the victim of a ransomware attack transfers the ransom to hackers, who then transfer the funds to hundreds of other wallets and the funds are essentially gone forever.  Even if the payments can be tracked to accounts, what is even more rare is the ability to unlock those accounts.  So the question on everyone’s mind is how did the DOJ unlock the account holding the ransom?

According to documents filed in the U.S. District Court for the Northern District of California, Colonial Pipeline provided investigators with the bitcoin address of the hackers it paid on May 8.  The hackers then moved the funds through at least six more addresses by the next day.  On May 13, DarkSide told affiliates that its servers and other infrastructure had been seized, but did not provide any details.  On May 27, the FBI seized 63.7 bitcoins traced to the Colonial ransom, when it  landed at a final address.  Impressive.

So how did the FBI get the private encryption key?  The FBI disclosed in its application for a warrant that it had the private encryption key for that bitcoin address.  The FBI has not, however, disclosed how it obtained the encryption key.  There are a few possibilities.  First, it is possible someone close to the attack tipped off the FBI.  Second, the attackers may have been careless.  The FBI noted that they had been investigating DarkSide since last year.  It is possible the FBI got access to communications that may have provided clues to the private key or access to a private server holding information about the private key.  Third, the FBI may have received assistance from the cryptocurrency exchange where the bitcoin had been moving from account to account.  Fourth, the FBI could have hacked the key on its own.  The most likely scenario is that the attackers were careless, and the FBI was able to capitalize on their carelessness to uncover the private encryption key.

The good news for the crypto community is that law enforcement was able to track down and recover much of the bitcoin.  Contrary to the perception that cryptocurrency is untraceable, it appears the public blockchain made it easier in this case to track and recover the ransom than it would have been if the ransom was paid in fiat.  We may never know how the FBI unlocked the private encryption key in this case, but if the DOJ is successful in recovering future ransom payments, it may shed some additional light on this case and others.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLP
For more articles on the Colonial Pipeline hack, visit the NLR Communications, Media & Internet section.

Countdown to TransUnion—How Will SCOTUS Come Out on Key Standing Issues for Data Privacy Litigations?

Data privacy litigators have their eye on the Supreme Court going into the end of the month as we wait for the Court’s opinion in Ramirez v. TransUnion.  And when the decision is issued, CPW will be there in real time to fill you in.  In the meantime, below is a refresher of the facts and issues raised in Ramirez, and why it is a must-watch decision for the end of the Supreme Court’s current term.

As readers of CPW already know, Article III limits federal court jurisdiction to actual “cases or controversies.”  U.S. Const. Art. III, § 2.  The Supreme Court has held that standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.”  This includes the following three elements, which constitute the “irreducible constitutional minimum of standing”:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized … and (b) actual or imminent not conjectural or hypothetical … Second, there must be a causal connection between the injury and the conduct complained of … Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

As relevant for Ramirez, in 2016, the Supreme Court decided Spokeo, Inc. v. Robins, 136 S. Ct. 1540.  In Spokeo, the Court affirmed that a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”  (emphasis added).  The Supreme Court’s analysis emphasized that “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”  Id. (emphasis in original).

Which brings us to Ramirez.  The plaintiff alleged that he had difficulty obtaining credit, was embarrassed in front of family members, and canceled a vacation after a car dealer received a credit report indicating that his name matched a name on a government “terrorist list” of persons with whom U.S. businesses may not transact.  In response, Ramirez filed a class action alleging three violations of the Fair Credit Reporting Act (“FCRA”), two concerning the mode of providing consumers with a copy of their own credit file and one concerning the procedural requirements for furnishing an accurate credit report.

Ramirez sought to represent a class of thousands of individuals, the vast majority of whom (more than 75%) never had a credit report disseminated to any third party, let alone suffered a denial of credit or other injury anything like what he experienced.  The trial court nonetheless let the class proceed on the theory that the absent class members all suffered an Article III injury and that the vast differences between the experiences of the named plaintiff and the class he purported to represent were immaterial.  Ramirez ultimately obtained a multi-million dollar jury verdict against the credit reporting agency TransUnion for falsely flagging him and more than 8,100 other people as terrorists.

The Supreme Court granted cert for the question: “Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”  (emphasis added).  TransUnion argued in its opening brief that Ramirez’s class definition includes individuals who suffered no injury because they never had a credit report disseminated to a third party with incorrect or misleading information.  TransUnion further asserted that simply alleging an FCRA violation and claiming statutory damages does not itself confer Article III standing.

At oral argument earlier this year, several members of the Court expressed skepticism about Ramirez’s standing argument if carried to its logical conclusion.  [For Kristin Bryan’s real time coverage of that oral argument, check it out here].  However, at this point it is an open-ended question as to whether the Court will rule in a way that curtails the availability of Article III standing in data privacy litigations going forward.  Suffice to say, depending on how the Court rules, the case could have a major impact on litigations brought under various federal and state data privacy statutes (not only the FCRA but also the Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act, among others) and for data event litigations where Article III standing is a frequently litigated issue.

© Copyright 2021 Squire Patton Boggs (US) LLP
For more articles on SCOTUS, visit the NLRLitigation / Trial Practice section.

8 African American Attorneys Who Shaped the Nation

In honor of Juneteenth, we want to recognize a few African American attorneys who helped shape the legal space. Since the founding of our nation more than 240 years ago, African Americans have experienced, bore witness to, suffered, and ultimately confronted the systemic racial discrimination present in virtually all aspects of everyday life. Although one would hope the legal profession, based on fundamental ideas of equality and due process, would be mostly immune from such a tarnished reputation, reality failed to meet the rhetorical standard set by the ideals of the law.

Here are eight African American attorneys who pioneered the way for generations of legal scholars by challenging the preconceived bias and bigotry of an entire nation:

  • Macon Bolling Allen
  • Charlotte E. Ray
  • James Weldon Johnson
  • Charles H. Houston
  • Thurgood Marshall
  • Jane Bolin
  • Constance Baker Motley
  • Fred Gray

1. Macon Bolling Allen (1816-1894)

 

 

Considered to be both the first African American attorney to practice law in the United States and to hold a judicial position, Macon Bolling Allen broke numerous barriers. He passed the Maine bar exam in 1844, but racial prejudice in Boston kept him from making a living as a lawyer, so instead, he embraced a rigorous qualifying exam and became Justice of the Peace of Middlesex County, Massachusetts in 1848. In doing so, Allen became the first African American in the United States to hold a judicial position, despite not being considered a U.S. citizen under the Constitution at the time.

2. Charlotte E. Ray (1850-1911)

 

 

Charlotte E. Ray was the first black female lawyer in the United States. She studied at the Institution for the Education of Colored Youth in Washington, D.C., and went on to teach and study law at Howard University. Upon admission to the District of Columbia bar in 1872, Ray became not only the first woman admitted to practice in the District of Columbia but also the first black woman licensed to practice law in the United States.

Unfortunately, Charlotte Ray’s career was cut short due to racial prejudice. She opened a law office in the nation’s capital but was unable to obtain enough clients to sustain her practice. She ultimately returned to New York City to teach in the public school system.

3. James Weldon Johnson (1871-1938)

 

 

Best known for his role in the creation of the Harlem Renaissance, James Weldon Johnson was not just an attorney; he was also an early civil rights activist and a leader of the NAACP.  After founding a newspaper called The Daily American, Johnson became the first African American attorney to pass the Bar in the state of Florida. He was also a noted author; his published works include The Autobiography of an Ex-Colored Man (1912) and God’s Trombones (1927).

4. Charles H. Houston (1895-1950)

 

 

Charles H. Houston served as the Harvard Law Review’s first African-American editor, the vice dean of Howard University’s law school, and head of the NAACP’s legal fight against “separate but equal” schools, culminating to the landmark Supreme Court decision in Brown v. Board of Education.

During his time at the NAACP, Houston accumulated legal precedents against the “separate but equal” doctrine, specifically in cases related to education for African Americans. Arguably his most significant victory came in 1938 when the Supreme Court ruled in Missouri ex rel. Gaines v. Canada that it was unconstitutional to give African-American students funds to attend an out-of-state law school instead of offering them admission to the only law school in the state. He was widely known as the mentor of Thurgood Marshall.

5. Thurgood Marshall (1908-1993)

 

 

Thurgood Marshall was the first African American justice of the Supreme Court, serving from 1967-1991. After studying law at Howard University, Marshall went on to serve as counsel to the NAACP. In 1954, he won the seminal case of Brown v. Board of Education, which signaled the end of racial segregation in American public schools.

In 1967, President Lyndon Johnson nominated Marshall to serve on the United States Supreme Court. Initially, the makeup of the court allowed Marshall to be an influential liberal voice on landmark cases including Roe v. Wade and Furman v. Georgia. However, as Republican presidents appointed eight consecutive conservative justices, the court took on a decidedly different tone, and Marshall’s later tenure was defined more by his dissents defending the liberal principles that had since been overturned.

6. Jane Bolin (1908-2007)

 

 

The first African American female judge in the United States, Jane Bolin earned her J.D. degree at the Yale Law School in 1931, where she was also the first African American woman to graduate.

After passing the New York bar exam, New York City Mayor Fiorello LaGuardia appointed Bolin to serve as Judge of the Domestic Relations Court in 1939. During her 40 years on the bench, she achieved two significant civil rights reforms: she oversaw the assignment of probation officers in the court system without regard for race or religion, and she also championed a provision that publicly funded yet privately owned child-care agencies must accept children without regard to racial or ethnic background.

7. Constance Baker Motley (1921-2005)

 

 

Constance Motley was the first African American woman to be appointed as a federal judge. She was the first African American woman to serve as a member of the New York State Senate. Additionally, Motley was the first woman to serve as Manhattan borough president.

Motley was keenly involved in the civil rights movement, once visiting the Rev. Dr. Martin Luther King, Jr. in jail. She also sang freedom songs in churches that had been bombed and spent a night under armed guard with civil rights leader Medgar Evers, who was later murdered.

Her legal contributions cannot be overlooked, as Judge Motley was a force to be reckoned with in the courtroom. Her contributions to the battle to extend civil rights for the disenfranchised is an invaluable chapter of American jurisprudence.

8. Fred Gray (1930-)

 

 

During the Montgomery bus boycott, Fred Gray played a vital role in the successful desegregation of Montgomery buses, both as legal counsel and as a strategist. When Claudette Colvin and Rosa Parks were criminally charged for refusing to give up their seats to white passengers, Gray defended the women in court. He also challenged the constitutionality of Alabama laws mandating segregation on buses in Browder v. Gayle, which was affirmed in 1956 by the United States Supreme Court.

In 1970, Gray went to the Alabama State Legislature to serve as an elected representative from Tuskegee. His election made him one of the first two African American public officials to serve in the legislature since the Reconstruction era. President Jimmy Carter nominated Gray to the U.S. District Court for the Middle District of Alabama in 1979, but Gray was forced to withdraw his name from consideration in light of massive opposition from conservative political foes.

Conclusion

For all its specifications about the provision of equality, the American legal system must be examined for the various instances in which it has failed to follow through on those promises to its African American citizens. Since colonial times, African Americans have comprised the backbone of a country that was founded on principles of liberty from which they were expressly excluded for far too long.

This Juneteenth, we acknowledge a fraction of the African American attorneys whose trailblazing careers shaped the American legal system, gearing it towards bridging the gap between its inequitable promises of liberty and their actual application to all Americans, regardless of the color of their skin. These men and women, in their perseverance and commitment to upholding the law, have challenged biases, discrimination, and imbalance of opportunity to secure the American promises of liberty and justice–for all.

© Copyright 2021 PracticePanther
ARTICLE BY Practice Panther
For more articles on the legal industry, visit the NLRLitigation / Trial Practice section.

Top Legal Industry News for June 2021: Law Firm Hires, Pro-Bono, & Innovation

Summer is upon us and we’re back with another edition of the National Law Review’s legal industry news column. This week, we cover the latest law firm hiring, pro bono, and legal award recognition news. Read on for the latest updates:

Law Firm Hires & Moves

The Young Lawyers’ Section (YLS) of the Chicago Bar Association named Clifford Law Offices’ Tracy Brammeier as its next chair as well as an executive council at the YLS Annual Meeting held June 2, 2021.

Ms. Brammeier’s practice focuses on aviation, transportation, premises, and construction liability in addition to other areas of personal injury and wrongful death litigation. She also participated in the YLS Wills for Heroes project.

“For the last year, we have all worked to stay in touch with clients and colleagues, trying to adapt as we lost access to in-person meetings, hearings, and events,” said Ms. Brammeier. “As we figure out our ‘new normal’ in a post-COVID world, the YLS is more essential to its members than ever before by providing a consistent space for legal education and social engagement to sustain the community environment that is so important to our professional success and personal fulfillment.”

Steven M. Regan joined Steptoe & Johnson’s Business Department in its Pittsburgh office. Mr. Regan’s practice focuses on real estate, real estate development, and corporate transactions. Mr. Regan represents real estate investors in structuring real estate investments and executing acquisition and financing of projects in all asset classes.

“I am excited to welcome Steve to Steptoe & Johnson PLLC. He will be an asset to both our real estate and transactional teams,” said firm CEO Christopher L. Slaughter. “Veteran attorneys like Steve who know how to get positive results and build lasting relationships are a crucial part of our long-term effort to expand services to new and existing clients in the Pittsburgh market.”

Norris McLaughlin law firm hired new attorneys to join the Pennsylvania office’s litigation practice, as well as the addition of one summer associate. The new hires include:

  • Thomas H. Dinkelacker concentrates on municipal, land use, and real estate law and represents clients before zoning hearing boards, code appeal boards, governing bodies, and various Pennsylvania Courts.
  • Rebecca J. Grausam-Charamella focuses on complex litigation matters and represents a multitude of clients at jury trials, hearings, mediations, and arbitrations. She also served as a trial attorney for State Farm Insurance Company for eight years.
  • Andrew J. Shaw concentrates his practice on commercial litigation, and has a wide range of experience through all phases of litigation in both state and federal courts.
  • William R. Murphy III defends individuals involved in civil litigation for general liability matters. He also represents insurance carriers, and he has experience in insurance fraud and automobile accidents.
  • Rocco Beltrami will temporarily join as a summer associate to assist the attorneys while he is in law school at Villanova Charles Widger School of Law.

“We are excited to be growing in a way where we are continuously adding exceptional talent to our roster of great attorneys here at Norris McLaughlin,” said the Honorable Emil Giordano (Ret.), a member of the firm and co-chair of its Litigation Practice Group.

Manatt, Phelps and Phillips, LLP law firm announced the addition of Naeun Rim to their Los Angeles firm as a litigation partner. Ms. Rim represents clients at the intersection of civil litigation and white-collar defense matters across the health care, financial services, entertainment and technology industries.

Ms. Rim is also one of a few Asian American women to serve as trial counsel for a Fortune 150 company in one of California’s biggest environmental trials.

“Naeun will be a strong asset to what our clients view as a well-established litigation powerhouse,” Donna L. Wilson, Manatt’s CEO and managing partner said in the announcement.

Democracy Forward named lawyer Skye Perryman as its new President and Chief Executive Officer.  Ms. Perryman is a founding litigator of the organization. As president and CEO, Ms. Perryman will focus on confronting unlawful threats to democracy and social progress. She succeeds Anne Harkavy, the organization’s founding executive director.

“As we continue to see the basic values of our democracy under attack, Skye Perryman is the right leader at the right time for Democracy Forward,” said Marc Elias, head of the Political Law practice at Perkins Coie and chair of the board of Democracy Forward. “She is a successful litigator, effective strategist, and a coalition builder who is committed to taking on critical fights to advance social progress and democratic values. We are all thrilled to welcome Skye back to Democracy Forward to lead its next phase at a time when the stakes for our nation’s future could not be higher.”

Ms. Perryman most recently served as Chief Legal Officer and General Counsel of the American College of Obstetricians and Gynecologists, where she worked to enhance access and equity in women’s health care.

“We must use all tools at our disposal to fight for the promise of democracy at this crucial moment. It is an honor to be rejoining the team at Democracy Forward as we expand the scope and reach of our work.” said Ms. Perryman.

Law Firm Philanthropy and Pro Bono

Jackson Lewis P.C. partnered with The Association of Corporate Counsel’s Employment and Labor Law Network (ACC) to develop “RACE Talks: Realign Act Change Engage,”  a racial equity program that focuses on individual transformation and change to create a more racially just workplace and society. The RACE Talks program highlighted specific actions to advance social justice in society, and included podcasts, videos and articles.

Jackson Lewis’ Samia M. Kirmani led workplace bias sessions and facilitated live discussions with Michael D. Thomas and Tanya A. Bovée. Weldon H. Latham also added to the discussions.

“We were thrilled that ACC asked Jackson Lewis to create a program designed to advance racial justice,” said Ms. Bovée. “2020 was a racial awakening for many, and this was the perfect opportunity to focus on how individuals can transform and bring about positive change. We created this program with the goal that participants would step outside of their comfort zone, disrupt their own status quo, and think differently about race and the concept of bias.”

North Carolina’s Pro Bono Resource Center inducted four Ward and Smith law firm attorneys into the 2020 North Carolina Pro Bono Honor Society. Despite the challenges 2020 brought, Mary Cavanaugh, Chris Edwards, Paul Fanning and Lance Martin participated in a wide range of pro bono activities across the state.

“Many North Carolina attorneys recognized the needs brought about by COVID-19 and provided pro bono legal services to help ensure that ‘justice shall be administered without favor, denial, or delay,’ as is mandated by our state’s Constitution,” said North Carolina Supreme Court Chief Justice Paul Newby in the announcement.

Frost Brown Todd (FBT) is celebrating Juneteenth this year by providing the entirety of the ParentPreneur Foundation’s $10,000 Father’s Day grant awards, where ten dads of color will receive $1,000 a piece for their start-up businesses.

The ParentPreneur Foundation provides opportunities for black entrepreneurs who are in the start-up business to get a leg up and get started and strives to empower these parents to leave a good legacy for their children.

“The world of start-ups is a challenge no matter who you are, but that is especially true of Black entrepreneurs,” said Terrence Reeves, chair of FBT’s Venture Capital industry team. “Funding this grant is another example of how Frost Brown Todd’s venture capital services go beyond just providing legal support. Being part of this project at a time when the U.S. is celebrating Juneteenth makes it all that more special. We look forward to seeing the impact this grant program will make on the lives and livelihoods of the recipients.”

Legal Industry Awards & Recognition

The Globe and Mail named McCarthy Tétrault as a recipient of its first Report on Business Top 25 Best B2B Brands award. McCarthy Tétrault earned the top honor in the legal category out of 11 law firms.

The Best B2B Brands is a new research initiative from the Globe and Mail’s Report on Business Magazine with Ipsos. The list is based on 42 different evaluations related to culture, innovation and other initiatives from 406 Canadian executives who were surveyed in January and February of this year.

“This acknowledgement is a true testament to our firm’s core values of investing in our people, our clients and our communities,” said Dave Leonard, CEO at McCarthy Tétrault. “Our top priority has always been our clients’ sustained success, and we recognize that the best way to achieve this is to support a collaborative, inclusive and innovative culture that evolves with the pace of business.”

For the third year in a row, the Legal 500 United States 2021 ranked MoginRubin in the category of Antitrust and Civil Litigation/Class Actions: Plaintiff. The Legal 500 ranks practice areas nationally instead of by state.

The Legal 500 recognized the following MoginRubin attorneys:

Greenberg Traurig law firm received the Morgan Stanley Leadership in Excellence in Inclusion and Diversity award.  Bradford D. Kaufman, Greenberg Traurig co-president and the global chairman of Professional Development and Integration, accepted the award on behalf of the firm.

Greenberg Traurig invested $5 million over five years to address systemic racism and launched a Justice Action Initiative to target pro bono work in the areas of economic, social, and racial justice. The firm also joined in creating the Law Firm Anti-Racism Alliance.

“No company operates without the support of clients or customers. Leadership involves service and most professionals feel they have a responsibility to give back. Moving a diversity initiative from paper to impact takes intention,” Mr. Kaufman said. “I have had the privilege to represent Morgan Stanley during the past 35 years and therefore know the depth of its commitment to inclusion and diversity and it is truly inspirational.”

Chambers USA recognized Bracewell law firm in its 2021 rankings, giving the firm a Nationwide Band 1 ranking in Oil & Gas (Regulatory & Litigation) for the seventh consecutive year. Bracewell also ranked as a Band 1 firm in the Texas: Environment category for the fifth consecutive year.

Overall, Bracewell ranked with 89 other firms for excellence in representing clients in the real estate, technology, energy and infrastructure sectors. Additionally, Chambers ranked 50 percent of Bracewell’s partners as leaders in their practice areas.

Copyright ©2021 National Law Forum, LLC
For more articles on the legal industry, visit the NLRLaw Office Management section.

Cannabis Legalization and Racial Justice

Earlier this year, New York passed legislation legalizing the adult use of cannabis. New Yorkers can now legally possess three ounces for any use, and can smoke marijuana in any publically-designed area where tobacco smoking is allowed, although home cultivation is still not permitted. Importantly, certain convictions – possessing up to 16 ounces or selling up to 25 grams of marijuana – will be automatically expunged from criminal records.

Not only does this law expand existing medical marijuana programs and create a licensing system for producers and distributors, but it also acts as an important step toward addressing the racial disparities in drug-related arrests. During the 1970s and 1980s, the so-called “War on Drugs” stigmatized drug use as a criminal and moral issue rather than as a public health issue.

The criminalization of drug use led to disproportionate arrest rates of low-income people of color. Higher arrest and incarceration rates do not reflect increased drug use in these communities, but rather the increased presence of law enforcement in urban areas, low-income communities, and communities of color. In every state, Black people are more likely to be arrested for marijuana possession, and in some states, Black people are nearly ten times more likely to be arrested than White people. In states where marijuana has been legalized or decriminalized, arrests of racial minorities have declined markedly.

The criminalization of drug use has had lasting ramifications for many lives and communities. As noted by the Drug Policy Alliance, many people have been denied food stamps and public assistance, evicted from public housing, and lost custody of children. With the new legislation, once a marijuana conviction is expunged, it will not show up on a background check and cannot be used against an applicant in seeking employment, housing, or student loans.

The legalization of marijuana is an important step forward but much more needs to done such as providing greater resources to integrate the formerly incarcerated into society and expanding the definition of public safety beyond just the criminal law to include equal access to health care, education, employment, and housing.

© 2021 Proskauer Rose LLP.

Mastering Remote Work: Does Returning to the Office Mean Bringing Pets to Work?

With so much of the workforce going remote this past year, there has been a huge shift in the way many people view pet ownership. In fact, the national pet adoption rate jumped more than 30% at the beginning of the pandemic, and animal rescue organizations reported an overall increase in adoptions of 30 – 50% in 2020. Not only has the spread of remote work helped match pets to homes, but we know that animals have been shown to reduce stress and provide much needed comfort and social support to many workers during the pandemic.

The shift to work-from-home has also opened our doors to our colleagues’ pets, whether meeting them on Zoom or hearing them interrupt conference calls. This has made it seem more normal to have your pet – or your colleagues’ pets – around during the work day.

With the potential for going back to the office seemingly closer, some offices are considering whether to go pet-friendly. Here are a few steps to consider before your office makes this decision:

  • Consider Your Workforce and your Workplace

    • Not every office will be the right place for pets, but it could be a perk your employees really appreciate (and could make it easier for employees to come back into the office). Consider if the office space allows for pets to stay in their own areas, out of the way of those who do not feel comfortable with animals around. Think about how easy your employees can take pets outside, or remove them from distracting other employees. Finally, take account of employee pet allergies, and determine what limitations would need to be in place.

  • Require Authorization

    • There should be a process for employees to receive authorization to bring their pet to work, and provide necessary information regarding their pet’s health and vaccine history. Any employee bringing a pet to work must agree to observe certain requirements or risk losing their pet-privileges.

  • Establish Guidelines

    • Employers need to determine what types of pets can come to work (e.g., dogs, cats, fish, etc.), and designate certain areas pet-friendly, and certain areas off-limits for animals. Strict cleaning guidelines should be in place to ensure the workplace remains clean and safe for all.

There are also legal concerns when addressing pets at work. Beyond a full pet-friendly policy, employers must remember that pets may need to be allowed as a reasonable accommodation for employees with disabilities. The Americans with Disabilities Act (ADA) requires service animals be allowed in all areas of public access, and employers are required to engage in the interactive process with employees if a pet may be an appropriate accommodation for a disability. The ADA generally requires service animals be allowed in an employer setting, if doing so will not create an undue hardship for the business. This is not the case for emotional support animals, however, which are not necessarily trained for a specific service, but simply to provide comfort and companionship. Either way, when faced with the question, employers should consider whether a pet would be an appropriate accommodation that enables an employee to perform the essential functions of his or her job.

© Polsinelli PC, Polsinelli LLP in California
For more articles on remote work, visit the NLRLabor & Employment section.

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