The National Law Forum

Guarding the Grid: DOE Releases 100-Day Cybersecurity Pilot Program

The February 2021 hack into Oldsmar, Florida’s water treatment system is a frightening reminder that critical infrastructure systems can be vulnerable to cyberattacks and that cyberattacks can jeopardize health and safety. In this case, the hack may have spurred government action. On Tuesday, the Biden administration announced a 100-day plan “to advance technologies and systems that will provide cyber visibility, detection, and response capabilities for industrial control of electric utilities.”

In a coordinated effort among the Department of Energy (“DOE”), the Cybersecurity and Infrastructure Security Agency (“CISA”), and the electricity industry, the plan lays out four areas of focus for the next 100 days: (1) enhancement of mechanisms for detection, mitigation, and forensic activities; (2) “concrete milestones” for the industry to develop “situational awareness and response capabilities in critical industrial control systems (ICS) and operational technology networks (OT)”; (3) reinforcement of overall cybersecurity in critical infrastructure information technology networks; and (4) voluntary industry participation programs “to deploy technologies to increase the visibility of threats in ICS and OT systems.”

The plan’s success likely hinges on the government’s ability to develop sustainable, cooperative relationships with the relevant industries. “Public-private partnership is paramount to the Administration’s efforts,” said National Security Council (“NSC”) Spokesperson Emily Horne in response to Tuesday’s announcement, “because protecting our Nation’s critical infrastructure is a shared responsibility of government and the owners and operators of that infrastructure.” It appears that similar plans are being developed for additional critical infrastructure industries, including water, the chemical sector, and natural gas.

The previous administration responded to the escalating threat of cyberattacks from foreign adversaries^[1] in part with Executive Order 13920, which declared a national emergency with regard to electric grid security and gave the Secretary of Energy the authority to prohibit certain transactions involving electric equipment potentially controlled by a foreign adversary. Relying on EO 13920, the DOE issued a Prohibition Order in December 2020 barring “Critical Defense Facilities” and any supporting facilities from purchasing or installing electricity generation equipment manufactured in China (“December Prohibition Order”).

On January 20, 2021, President Biden’s DOE issued a 90-day suspension of EO 13920 and the December Prohibition Order to allow the DOE and the Office of Management and Budget to consider methods of “protect[ing] against high-risk electric equipment transactions by foreign adversaries while providing additional certainty to the utility industry and the public.” Tuesday’s announcement from the DOE revoked the December Prohibition Order, effective immediately, but EO 13920 will remain in place until it expires on May 1, 2021.

The DOE has now opted to revoke the December Prohibition Order in an effort to “create a stable policy environment” while the DOE further develops its cybersecurity strategy for the electricity sector. However, utilities are still encouraged to “act in a way that minimizes the risk of installing electric equipment and programmable components that are subject to foreign adversaries’ ownership, control, or influence” while the DOE develops further recommendations.

To assist in cybersecurity strategy development, along with the DOE’s 100-day plan announcement, the DOE issued a Request for Information (“RFI”) “focused on preventing exploitation and attacks by foreign threats to the U.S. supply chain.” Interested parties are encouraged to submit input to the DOE by June 7, 2021 regarding the development of “a long-term strategy that includes technical assistance needs, supply chain risk management, procurement best practices, and risk mitigation criteria” as well as the “depth and breadth of a future prohibition authority.” Instructions for submitting comments can be found on the DOE’s website.

The DOE is still hammering out many details of the 100-day plan, and some details may never be released to the public – expansions of DOE’s Cyber Testing for Resilient Industrial Control Systems program, for example, will be classified to avoid oversharing with foreign intelligence. While the DOE works to develop its 100-day plan, utilities should evaluate cybersecurity infrastructure within their own systems. For example, utilities could make renewed efforts to take inventory of software and hardware used across any systems touching critical infrastructure, and ensure that all technology is secure and up to date. If defense, detection, and prevention systems do not meet the DOE’s suggested standards, a utility could consider implementing additional measures or strengthening current systems now.

Additionally, a utility could consider whether and how its organization might participate in an information-sharing program. Any thoughts regarding guardrails and disclosure limitations for such a program could be submitted as comments to the RFI. Also, a utility could consider how its current approach to communicating with internal and external stakeholders about cyber issues might impact participation in information sharing.

^[1] The new 100-day plan comes not only in the wake of the Oldsmar water system hack but also just days after the administration announced sanctions against Russia for its role in the Solar Winds hack.

ARTICLE BY Philip J. Bezanson, Claire E. Cahoon, Catherine P. McCarthy and Joshua C. Zive of Bracewell LLP

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

Bioplastics: Snickers® Candy Bars Have It Wrapped Up

A team of researchers from Yale University, the University of Maryland and the University of Wisconsin-Madison just published a study on a durable, biodegradable plastic alternative made 100% of wood. This study is just one example of the advent of a new generation of biobased plastics or bioplastics, a term broadly referring to products made from organic matter that have the same properties as “ordinary” plastic. The attractiveness of bioplastics is due to their potential to meet environmental as well as economic goals. According to current estimates, the bioplastics market size is expected to reach at least USD $20.0 billion by 2026.

Presently, the food and beverage sector is leading in terms of adoption and implementation of bioplastics. In 2016, for instance, Mars introduced a bioplastic wrapper made from potato starch by-products for Snickers® candy bars. Bioplastic food packaging, like the Snickers® wrapper, remains and will continue to remain in high demand. Like other food packaging, bioplastic food packaging must be approved by the Food and Drug Administration (FDA). The FDA currently does not have a definition of or specific regulations for bioplastic food packaging. Accordingly, bioplastic food packaging must comply with the same food safety laws and regulations as petroleum-based plastic food packaging. The primary approval pathway is through the FDA’s so-called Food Contact Notification (FCN) process.

Under the FCN process, a manufacturer or supplier of a new “food contact substance,” or “any substance intended for use as a component of materials used in manufacturing, packing, packaging, transporting, or holding food if such use is not intended to have a technical effect in such food,” submits a notification to the FDA. Generally speaking, the notification should include information on: (a) the composition, specifications, and method of manufacture for a substance; (b) the intended conditions of use; (c) the quantity and identity of substances likely to become components of foods under the intended use conditions; and (d) toxicology data demonstrating the safety of the expected intake level. If the FDA does not object within 120 days to the substance’s use based on safety grounds, in writing, the submitter may market the substance. Critically, the FDA does not regulate labeling claims relating to bioplastic packaging, but biodegradability advertising has been the subject of action by the Federal Trade Commission.

Although a number of bioplastics have been cleared under the FCN process, some question whether the FDA should (1) define the term “bioplastics” by, among other things, specifying the percentage of carbon that must originate from biological sources as opposed to fossil fuels (currently, a product made almost entirely out fossil fuels can be considered a “bioplastic”); and (2) attempt to harmonize its regulations on bioplastics with international standards to avoid barriers to the international trade of bioplastics. Opinions on these considerations differ but watch this space for further developments, especially in light of the recently reintroduced “Break Free From Plastic Pollution Act” and the April 6, 2021 United Nations Environment Program legislative guide on the regulation of plastic products. If uptake by major brands like Snickers® is any indication of the future, bioplastics will play a meaningful role in the bioeconomy.

ARTICLE BY Michelle M. Ovanesian of Proskauer Rose LLP

For more articles on food and drug law, visit the NLR Biotech, Food, Drug section.

What Is Law? California Has Some Answers, But I Prefer Cicero’s

Lawyers deal with the law every day, but seldom pause to ask the existential question – What is law? Conveniently, the California legislature has provided some definitions. Section 22 of the Civil Code defines “law” in decidedly magisterial terms:

“Law is a solemn expression of the will of the supreme power of the State.”

How is that the supreme power express its will? The answer can be found in Section 22.1 of the Civil Code which declaims that the “will of the supreme power is expressed” by the Constitution and statutes. Notably absent is any mention of the judicial precedents.

Section 160 Evidence Code provides a broader and seemingly open-ended definition:

“‘Law’ includes constitutional, statutory, and decisional law.”

Section 113816 takes the approach that law is law only if it is applicable, but omits the constitution and judicial precedent:

“‘Law’ means applicable local, state, and federal statutes, regulations, and ordinances.”

The great Roman lawyer, Marcus Tullius Cicero, answers the question by quoting the learned men of his time as defining law as “Lex est ratio summa, insita in natura, quae iubet ea quae facienda sunt, prohibetque contraria (Law is the highest reason, ingrafted in nature, which commands what must be done and prohibits the contrary)”. De Legibus 1:18. Cicero also observed that ignorance of the law leads to more litigation than knowledge of the law (“Potius ignoratio iuris litigiosa est quam scienta“). Id.

ARTICLE BY Keith Paul Bishop of Allen Matkins Leck Gamble Mallory & Natsis LLP

For more articles on the nature of the law, visit the NLR Litigation / Trial Practice section.

You Want Some “Metchup” with That?

The US Court of Appeals for the Fifth Circuit found no infringement by a large, well-known company that used the registered mark of an individual whose own use was local and generated only a few sales and minimal profits. The Court vacated and remanded the case to determine whether plaintiff had abandoned the mark. Dennis Perry v. H.J. Heinz Co. Brands, L.L.C., Case No. 20-30418 (5th Cir. Apr. 12, 2021) (Graves, J.)

In 2010, Dennis Perry created a condiment concoction in his home kitchen that he named “Metchup,” constituting a blend of private label mustard and ketchup, and a blend of mayonnaise and ketchup. Perry sold the concoction in the lobby of his small motel in Louisiana. The US Patent & Trademark Office granted registration for his trademark “Metchup” and after five years declared his mark “incontestable.” Perry had slow sales, however, only selling about 60 bottles with $50 total profit over the years. Perry had a Facebook page for his product, but did not advertise or sell the product in stores or online.

Meanwhile, Heinz produced a condiment called “Mayochup,” a blend of mayonnaise and ketchup, that it began selling in the United States in 2018. Heinz held an online naming contest to promote its product, and when one participant suggested the name “Metchup,” Heinz posted a mock-up picture with the “Metchup” name, along with other proposals. Heinz’s counsel saw Perry’s trademark registration, but because Heinz was not actually selling a product named “Metchup” and there were so few indications that Perry’s product was actually being sold, Heinz concluded that Perry’s mark was not in use and could be used in its promotion. When Perry saw Heinz’s posting, he sued for trademark infringement.

The district court found that while Perry may have once had a valid trademark registration for “Metchup,” there was no likelihood of confusion with the Heinz product and the mark had been abandoned as a consequence of de minimis use. Perry appealed.

The Fifth Circuit analyzed the dispute based on the eight-factor likelihood of confusion test. The Court found three factors weighed in Perry’s favor:

Product similarity: Both products were mixed condiments.
Potential purchaser care: Consumers would exercise less care for a low-priced condiment.
Mark similarity: Both products used the same word “Metchup,” although the Court noted that the packaging design looked very different.

The Court also found five factors weighed in Heinz’s favor:

The type of mark on the spectrum (i.e., whether the name is related to what the product is): Here, the mark was “suggestive” because it was a mash-up of names related to the sauces used.
Outlet and purchaser identity: The parties targeted different markets because Perry had limited sales in one motel, while Heinz targeted online and at almost all grocery stores.
Advertising identity: Perry did not advertise besides his one Facebook page without online sales, while Heinz had large-scale advertising and sales.
Defendant’s intent: Heinz did not intend to infringe because it assumed Perry’s mark was no longer in use.
Actual confusion: There was no record or survey of any consumers actually being confused on the source of the products.

Weighing the factors overall, the Fifth Circuit concluded that use of Perry’s mark ultimately was not widespread enough for a consumer buying the Heinz product to be confused. Absent a likelihood of confusion, the Court agreed with the district court that Heinz’s use did not constitute infringement.

With regard to whether Perry had abandoned the mark for non-use, the Fifth Circuit noted that while Perry’s registration had achieved “incontestable” status because it was registered for more than five years, incontestable marks are still subject to a defense of abandonment as a consequence of intentional discontinued use of the mark in commerce. On this issue, the Court found that the district court erred by misplacing the burden of proof standard for abandonment and by misapplying the “use in commerce” requirement.

First, the burden should not have been on Perry to disprove abandonment. The Fifth Circuit explained that the burden was on Heinz to prove that Perry did not use the mark in commerce. Second, Heinz had not proven abandonment because abandonment requires “complete discontinuance of use” of the mark. There is no threshold sales requirement for “use” under the Lanham Act. Even minor and sporadic good faith use of a mark (in this case generating about $50 in profit) will defeat an abandonment defense because even de minimis activities can still influence interstate commerce and be regulated by Congress. The Court remanded the case for a fact-finder to determine whether Perry was making good faith use of the mark in commerce—did Perry have a good faith intent to continue to use his mark in commerce, or was he just trying to ketchup to Heinz’s condiment success?

This post was written by Darra Loganzo.

ARTICLE BY Intellectual Property Practice Group of McDermott Will & Emery

For more articles on patent infringement, visit the NLR Intellectual Property section.

Goodbye COVID-19 Priority Phases and Tiers, Hello Battles With Vaccine Passports!

On Tuesday, April 6, 2021, while touring a vaccination site in Alexandria, Virginia, President Joe Biden imposed a deadline on every state to open up vaccination eligibility to all adults by April 19, 2021 (moving up the previous target date of May 1, 2021). The White House COVID-19 coordinator, Jeffrey Zients, told governors also on April 6, 2021, that more than 28 million doses of vaccines will be delivered to all of the states the week of April 4-12, 2021. The president’s directive matches Dr. Anthony Fauci’s estimate in November 2020 that the earliest a vaccine would be available for most nonprioritized Americans would be April 2021.

While it is unclear whether or how that deadline could be enforced—and vaccination eligibility and scheduling does not mean that shots will actually get into people’s arms by, or on, the end of April (that will take several more weeks for sure)—it appears that the country is on the verge of opening up the floodgates regarding vaccine availability.

More than a dozen states have already completely opened up eligibility to anyone 16 years old and older. Now that there are vaccines available from three pharmaceutical companies, and the first few priority phases and tiers have been exhausted in most states, it seems that anyone willing to get the vaccine will be able to do so in very short order. Of course, polls show that approximately 13 percent of individuals say they will “definitely not” get vaccinated and another 25 percent say they will either “wait and see” or get vaccinated “only if required.” This may help explain why supply has met (or quickly will meet and exceed) the current demand for the vaccine.

Texas is one of the states opening up eligibility to everyone over the age of 16, but Governor Greg Abbott on April 6, 2021, signed an executive order prohibiting governmental entities (and those private businesses receiving public funds) from requiring proof of vaccination for purposes of receiving any service or entering any place—whether through the use of “vaccine passports” or otherwise. According to the governor, he issued these prohibitions and protections in Texas because each person has “the option to accept or refuse administration of the product” under an emergency use authorization (like all three of the currently available vaccines) and vaccination “is always voluntary in Texas and will never be mandated by the government.” This executive order also classifies mere “vaccination status” as “private health information,” although the federal government has explained that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act. Florida Governor Ron Desantis issued a similar Executive Order on April 2, 2021, but it prohibits all “businesses in Florida . . . from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination . . . to gain access to, entry upon, or service from the business.” While the Executive Order does not reference “employers” or “employees,” it is not clear yet how broadly the prohibitions will be interpreted.

Considerations for Tweaking Vaccination and “Return to Office” Policies

Even if an employer may legally require full vaccination before employees return to its offices or facilities, requiring employees to choose between a vaccine and all previously existing aspects of their jobs could still breed resentment, and risk legal action. But there is a good business case to be made for requiring full vaccination of all employees working at a worksite with other employees. The U.S. Centers for Disease Control and Prevention (CDC) recently provided guidance—Interim Public Health Recommendations for Fully Vaccinated People—and explained that fully vaccinated people need not wear masks or observe social distancing during private indoor visits with a small group of other fully vaccinated individuals (although even fully vaccinated individuals should “[a]void medium- and large-sized in-person gatherings” and continue to practice other preventative measures “in public settings”). The CDC guidance does not specifically address how to manage fully vaccinated employees in the workplace, and for the time being, existing state and local regulations regarding face coverings and other mitigation measures may still apply.

Given the above-referenced statistics and relatively high percentage of those who will oppose vaccination or receive it only begrudgingly, employers may want to consider alternatives such as continuing to allow remote working arrangements or allowing unvaccinated employees to return to their worksites under continued health and safety protocols, such as strict social distancing, masking, and quarantining.

However, other employers cannot (or may prefer not to) allow remote working arrangements indefinitely. For those employers, slowly phasing in a mandatory vaccination requirement may make sense, but such employers may also want to keep in mind reasonable accommodation requests from employees based on sincerely held religious beliefs or covered disabilities. Potential accommodations include granting exemptions from the vaccination requirement, waiting for alternative vaccine products without objectionable ingredients, or requiring additional mitigation measures, such as increased social distancing, continued use of face coverings, or reassignment to a different position or area of the workplace. Reviewing accommodation requests and engaging in the interactive process is a fact-intensive process, which often require careful consideration.

If a workplace is only open for those who have been vaccinated, knowing who is vaccinated is easy—everyone is! But, for those workplaces that allow both vaccinated and unvaccinated employees to return to their worksites, how do employees know who among them has been vaccinated—color-coded name badges, stickers, or other accessories? Will coworkers care if those working closely around them all day long have been vaccinated? How should employers track vaccination status, and can they? Currently, other than the Texas governor’s executive order, nothing prohibits employers from requiring proof of vaccination and (confidentially) keeping records of such vaccinations (e.g., seeing and maintaining a copy of employees’ CDC COVID-19 vaccination record cards). However, labeling (or branding) employees as either vaccinated or unvaccinated might lead to shaming, bullying, or harassment in the workplace if not properly implemented, monitored, and controlled.

The debate continues regarding whether “vaccination passports” or other types of identification should be used to distinguish between those who have been vaccinated and those who have not. Many restaurants, bars, concert venues, fitness centers, movie theaters, theme parks, and other businesses and organizations have said they will likely start requiring proof of vaccination (or proof of the need for an accommodation) in order for people to enter their facilities and enjoy their food, products, entertainment, and services. And, currently, most employers can start doing the same (subject to prohibitions that exist in Texas, Florida, and other states that follow suit).

Current Considerations for Employers

Employers may want to continue to communicate with employees (and continuously update them) regarding the organization’s position on vaccination, remote working arrangements, and safety protocols.

Employers may want to take this opportunity to implement a voluntary vaccination policy or convert a currently voluntary policy into a mandatory policy (whether for all employees or for those subsets of employees who are allowed or required to return to work in-person). And, if the ability to return to work in-person is not sufficient to reach a desired level of vaccinations in their workforces, employers might want to consider providing further incentives to vaccinate, such as monetary bonuses, gift cards, extra paid time off, or other rewards, if they have not already. However, a vaccination requirement for returning to an office or facility might incentivize employees to refuse vaccinations (or not tell their employers that they have been vaccinated) in order to continue their remote working arrangments—thus, ironically, creating a disincentive for getting vaccinated.

Either way, employers no longer have to worry about figuring out which employees might qualify for vaccinations under all the vague, confusing, and conflicting phases and tiers initially set up by the CDC and implemented with various tweaks by each of the states. And that is certainly great news and progress!

ARTICLE BY James M. Paul of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on vaccine passports, visit the NLR Coronavirus News section.

Help! We Think Our Employee Is Lying About COVID-19 Exposure or Symptoms

Does this fact pattern sound familiar?

Employer has a COVID-19 policy requiring employees with COVID-like symptoms or exposure to a COVID-positive (or suspected COVID-positive) person to report the same to Human Resources. If reported, the employee is required to not come to work (or go home) and to self-isolate or quarantine for 14 days, consistent with CDC Guidance.

Seems easy enough. But then an employee calls work exactly two weeks prior to a company-paid holiday, and reports not feeling well (fever, slight cough, and muscle fatigue) – typical COVID-19 symptoms. The employee is told to stay home and “get better,” but not to come to work for 14 days consistent with CDC guidance and company policy.

Employee returns to work after the 14-day quarantine and the four-day holiday weekend and works for two weeks. But then, the employee reports to Human Resources that he was just informed by a friend, with whom he was at a bar the previous night (and with whom he was in close contact), that the friend has COVID-like symptoms. Consistent with company policy, employee is told to go home and quarantine/monitor for symptoms. Fourteen days later, employee returns.

The next month, employee informs Human Resources that he was told that yet another friend with whom he was in close contact suspects he may have COVID-19. Employee reports the friend had been helping him move, told him the next day he had been feeling really ill, and was just told that his roommate had COVID-19. Employee is sent home and told to quarantine for 14 days and monitor for symptoms. Fourteen days later, employee returns to work.

There have now been three instances in which employee has been away from work for 14-day periods. His reliability is in serious question. And worse, the company suspects he may not have been telling the truth, just so he could get off work. In fact, Human Resources was informed that the employee is a “big-time skier” and often skis during the winter. So what can you do? Here are some options (and you can go with more than one) for consideration.

Question the employee about the circumstances of the symptoms or “close contact.” For instance, on a form, have employee describe in writing all facts supporting his claim that he has experienced COVID-19 symptoms within the past 48 hours.
Ask employee to describe all facts supporting his claim that within the past 14 days, he or any member of his household has been in close contact with someone who has recently tested positive for COVID-19 or has suspected COVID-19 symptoms.
Require the employee to sign an attestation form stating that the claims of symptoms/close contact are true and accurate: I certify that the above information is true and accurate and that any misrepresentation of the information provided could subject me to potentially adverse employment action, including but not limited to discipline and discharge.
As employers often do in suspected worker’s compensation fraud matters, you can hire an investigator to “follow” or investigate the employee while supposedly quarantining. Is he, in fact, quarantining? Or is he spending his days on the ski slopes?

Unfortunately, there are no “perfect” fixes to these challenging situations. However, because the situation involves COVID-19 does not mean that the employer is handcuffed. Just like other situations where an employee may be suspected of being dishonest, you can investigate and take action based on upon any dishonesty. The world may have changed significantly since March 2020, and workplaces may have also changed since the onset of the pandemic; however, employee honesty will continue to be a legitimate work expectation – the lack of which may lead to a legitimate, nondiscriminatory adverse employment action.

ARTICLE BY Daniel A. Kaplan of Foley & Lardner LLP

For more articles on coronavirus policies, visit the NLR Labor & Employment section.

How to Develop a Content Marketing Strategy for a Law Firm

There are many avenues through which law firms can attract clients, but it’s no secret that the internet is one of the most powerful lead generation tools to date.

Law firms of all sizes use the internet to market their services, follow up with clients, and publish thought-provoking content.

With the help of the internet, law firms can now market themselves across a variety of channels. This is where content marketing comes in to assist firms in creating the right content for the right audience at the right time.

How can you use content marketing to grow your law firm? Read on for tips on how to create an effective, client-attracting content plan.

Why Content Marketing Matters for Law Firms

Content marketing is a type of law firm internet marketing strategy that involves creating and distributing informative, audience-focused content online with the goal of attracting website visitors and, hopefully, new clients. It can take on a variety of forms and serve a variety of objectives, but the main purpose is to help law firms draw in new clients online.

In fact, studies show that 65% of law firms spend the majority of their marketing dollars online, which indicates that today’s law firms see the value in and are taking advantage of online marketing.

A content marketing strategy can assist law firms in reaching more customers through valuable, relevant, and engaging content.

10 Steps to Creating a Law Firm Content Strategy

Legal content gets a bad rap for being “boring”, but it doesn’t have to be.

In fact, your clients are searching for information and this puts you in a great position to create content that helps them navigate the legal process with ease.

Below, we’ve outlined 10 steps to uncovering smart content ideas, distributing your content, and using content to attract new clients.

1. Identify Your Main Objective

Content can serve a variety of purposes – from attracting website visitors to increasing engagement on social media to growing your email list.

Before creating content, you should consider what your primary objective is so you’re prepared to create content that helps you accomplish this goal. Different types of content work to generate different results, so it’s worth identifying your main objective(s) from the very beginning.

With your content, are you trying to:

Attract website visitors?
Grow your email list?
Increase social media engagement?
Increase your law firm’s authority online?
Run a PR campaign?
Improve your search engine optimization (SEO)?
Turn visitors into leads?
Attract backlinks?

These are just a few of the many objectives you may have for your content. Consider these before creating your content marketing strategy so you’re sure to create the right kind of content to achieve your goals.

2. Research Keywords for SEO

If one of your objectives is to improve your law firm’s SEO, then you will want to research searchable keywords to use in your content.

This involves identifying keywords your target audience is searching for to find law firms like yours, or otherwise find information about the type of legal services you offer.

To do this, you can use keyword research tools like SEMRush.com or Ahrefs.com to find keywords to you on your web pages or in your blog posts.

Here’s how to do keyword research for your blog articles:

Use keyword research tools to search for any terms you can think of that might describe the services you offer or some questions your target audience may have.
Look at the search volume and competition score of these keywords to see if they are worth targeting on your site. The sweet spot is keywords that have high traffic volume but low competition.
Use the “Related Keywords” function to find relevant keywords you might not have thought of during your original search.
Make a list of the keywords you think make the most sense for your site and write out some potential blog post titles that relate to these keywords. For example, “how to file for divorce” could become “How to File for Divorce – X Steps” or “How to File for Divorce – Avoid Stress & Animosity”.
Use your target keyword (for each post) throughout your content, paying special attention to your post’s title tag, meta description, and H1 and H2 headings.

3. Spy on Your Competitors’ Content

Sometimes you’ll find yourself a bit stumped on what content topics to tackle on your website. This is when it’s a good idea to scope out your competitors’ content strategies to see what keywords they are targeting and what content they’re posting on social media.

You can use the same keyword research tools as above (SEMRush and Ahrefs) to search for your competitors’ domain names and see what keywords they are ranking for. This can be a great way to find keywords you should be targeting on your own site.

Not all content needs to serve an SEO purpose, however. If you see your competitors posting thought-provoking content on their blogs or social media channels, this can give you some ideas for content you can create to increase engagement, improve your firm’s authority, and even attract clients to your website.

4. Ask Your Audience

The legal niche is highly competitive, which often makes it difficult to come up with content ideas that haven’t been tackled before. It’s a smart idea to ask your audience what topics they’re interested in and what questions they have about the services you offer and the legal process in general.

You can do this by posting a question like “What questions do you have about X?” on social media, by sending out an anonymous survey, or by sending out a campaign to your email subscribers. Then you can turn these questions/topics into blog posts and/or create a Frequently Asked Questions page on your website.

5. Establish a Content Schedule

When it comes to content marketing, quality comes first but consistency makes the difference. Your law firm’s content marketing strategy is made more effective when you are publishing, posting, and marketing your content on a regular basis.

In the beginning, you may want to start slow so you can keep up with a regular posting schedule. Even if you’re only posting two times per month, this is better than skipping months at a time. Later on, you might consider hiring help (like a blog writer) to create more content on a consistent basis.

Project management tools like Asana and Monday.com can help you stay on schedule, organize your content details, and ensure that you’re distributing your content across multiple channels.

6. Write with “EAT” in Mind

EAT (Expertise, Authority, and Trust) is a concept in SEO that applies to creating content that’s written with users and search engines in mind. It’s used to guide brands in creating content that provides value to readers and includes relevant, accurate information users can trust.

By contrast, many brands simply write with Google in mind – chocking their content full of keywords and hoping for the best. Instead, you should focus first on providing content that helps your audience learn, accomplish their goals, and find the best law firm for their needs.

SEO powerhouse Moz published an in-depth guide on how to write for EAT so you can create content that both Google and users want.

7. Create a Content Distribution Plan

You’ve planned your topics, written your content, and have hit “publish”… now what?

After creating your content, you’ll want to have a plan for distributing your content across platforms to get as many eyes on it as possible. This can be done manually or through the use of content distribution tools like Buffer or Hootsuite.

Here are a few places you can share your content to generate more traffic, engagement, and views:

Facebook posts
Facebook Ads
Instagram posts or stories
Email list/newsletter
Repurpose as YouTube video
Twitter
LinkedIn
Google Ads
Pinterest
Reddit
SMS (text message marketing)
Blog
Messenger bots
HARO (Help a Reporter Out)
Google My Business posts
Guest posting on third-party sites
Medium.com
Quora
Bing Ads

8. Focus on Lead Generation

If one of your objectives is to generate more leads for your law firm, then you will want to give your readers various opportunities to contact you (i.e. “convert”).

When publishing and sharing your content, consider what action(s) you want users to take. Do you want them to download an ebook? Give you a call? Fill out a form? Whatever it is, make this clear so you can generate as many leads as possible.

Here are a few ways to generate leads from your content:

Include contact forms on the service pages of your website.
Add downloadables like ebooks and infographics to your blog posts so users have to provide their email addresses.
Include calls-to-action on your social media posts to encourage followers to contact you.
Add your phone number to your web pages to make it easy for prospects to reach you.
Promote your email newsletters to collect more email addresses.
Create “lead magnet” content users would be interested in. Make is so they have to provide their contact information before downloading this content.

9. Follow Up with Prospects

What use is a lead if you don’t follow up with them? Unfortunately, this is a mistake a lot of law firms make (as shown in Hennessey Digital’s law firm intake study) and it can really cost them potential clients. Don’t forget to follow up with your leads!

When you collect information from prospects (whether it’s via email, social media, your contact forms, or by phone), you should record this information and outline a process for follow-up. This can involve having an automated email campaign or having someone on your team following up with the prospect directly.

Customer Relationship Management (CRM) tools can help you keep your lead information organized, check follow-up status, send client documents, and much more. Use these to ensure that you’re following up with every lead and aren’t missing out on new client opportunities.

10. Create Linkable Assets

A linkable asset is a type of content that works to attract backlinks to your website. Links from high-quality sites can improve your own site’s SEO, increasing your rankings and drawing in new website visitors.

There are many types of linkable assets you can create. These range from ebooks to guest articles to interviews to webinars and beyond. We’ve provided 8 ways to attract backlinks so you can improve your website’s SEO and generate even more traffic.

The great news is that your content can serve many purposes at once. For instance, you can publish an SEO-friendly blog post that generates traffic, attracts backlinks, drums up engagement on social media, AND converts readers into clients. The more you can “kill two birds with one stone” with your content, the better!

Law Firm Content Marketing Made Simple

By now you see that content marketing for your law firm doesn’t have to be a difficult task. With the right planning, tools, schedule, and writing know-how, you can create amazing content that moves your law firm forward.

Create content that gets your audience buzzing and itching to work with you. The more content you create, the more your skills will improve and the better you’ll be at using content to turn passive visitors into new clients.

ARTICLE BY Jason Hennessey of Hennessey Digital

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

EEOC Will Issue Guidance on COVID-19 Vaccine Incentive Programs Offered by Employers

Lawmakers and many employer organizations have urged the Equal Employment Opportunities Commission (EEOC) to issue guidance to companies that are considering providing incentives to employees who get the COVID-19 vaccine. Specifically, Sen. Richard Burr and Rep. Virginia Foxx stressed the importance of guiding employers that want to protect their employees stating,

“Employers actively working to protect their employees by increasing the number of workers receiving vaccinations through incentive programs are seeking assurance this action is allowable and does not violate important labor laws such as the Americans with Disabilities Act…”

In response, just a few days ago Carol Miaskoff, the EEOC’s acting legal counsel, stated that the agency expects to update its technical assistance to address these issues, but that the work is still ongoing. She did not indicate when the EEOC would issue its guidance.

Even without the promised guidance, many employers have offered incentives to their employees who receive the COVID-19 vaccine, including paid time off and cash bonuses, but the concern is the legality of the incentive programs. Do these incentives violate federal anti-bias laws? Do they violate the Americans with Disabilities Act (ADA)? If an employee cannot receive the vaccine for medical or religious reasons, how are those employees being treated?

Employers should be careful when offering incentives to employees prior to the EEOC’s guidance. Things to consider before offering incentives are to look at the size of the incentive, meaning if the incentive is too large, it may lose its “voluntary” status, the value of the incentive, and to ensure there isn’t a disability-related inquiry of the employees.

ARTICLE BY Amanda M. Connelly of Roetzel & Andress LPA

For more articles on the COVID-19 vaccine, visit the NLR Labor & Employment section.

The Do’s and Don’ts of Videoconference Oral Proceedings

As many will be aware, there is a challenge to the legality of videoconference Oral Proceedings pending at the EPO’s Enlarged Board of Appeal (G 1/21).^[1] In particular, the Enlarged Board has been asked to consider whether such proceedings can go ahead if the parties do not consent to use of the videoconference format. Although the question referred to the Board encompassed Examination, Opposition and Appeal proceedings, the EPO has decided to continue with videoconference Oral Proceedings for both Examination and Opposition matters irrespective of whether or not the parties involved consent to do so.^[2]

A Decision from the Enlarged Board is expected to issue relatively quickly, but unlike most referrals to be Enlarged Board, there does not appear to be much confusion about the direction the EPO will take. The EPO is generally keen to embrace the digital format and recent case law from the Boards of Appeal seems to suggest that the EPO will continue with videoconference Oral Proceedings as the “new normal”.^[3]In anticipation that the Enlarged Board agrees, we have compiled our top tips for videoconference Oral Proceedings.

DO ask for a test call. Even though we are all now familiar with the format, a test call is a good opportunity to confirm that the audio is clear, and the video is working correctly. The test call will also allow you to practice screen sharing and joining/leaving breakout rooms. Test calls need to be requested at least six weeks in advance of the hearing, as only limited time slots are available.

DON’T assume your laptop speaker and camera will be adequate. If translators are involved, the EPO requires participants to have a headset, and even an inexpensive microphone can be a significant improvement to the in-built one found on most laptops. If the proceedings use Zoom, check in advance that your screen name is appropriate, the brightness settings are adequate for where you plan to sit, and check that any filters/backgrounds are turned off.

DO have your ID ready. It’s easy to forget when the only travel involved is into your home office, but it will speed up proceedings on the day.

DON’T assume things will be the same as an “in-person” hearing. Videoconference Oral Proceedings do generally seem to take a little longer than in person hearings, and some nuances of body language can be lost. How you communicate with your team during the hearing will also be different if you are in separate locations. Have you thought about a virtual alternative to passing notes during the hearing?

DO ask for breaks if needed. Everyone now recognizes that screen fatigue can be a problem. Chances are that if you need a break, someone else in the proceedings will be glad you asked.

DON’T put up with technical issues. If you can’t hear or see the proceedings adequately, the EPO advises that you attract the attention of the chair by waving. Proceedings will then be paused while the technical issues are resolved.

DO have a backup plan in case of a loss of connectivity. The EPO will ask for a telephone number, but it is worth seeing if you could use a WiFi hotspot (e.g., from a mobile phone) if the internet connection drops.

DO think about how you will prepare and submit any amendments on the day. If you are the Applicant or Patentee, there is a chance your case may be upheld on the basis of amended claims, and therefore an amended description could be required. The amended description pages need to be signed and sent to the EPO in an EPO-compatible pdf format. Since most of us do not have printer/scanners at home, it is worth thinking in advance about how to do this.

Finally, DO remember that, everyone is in the same situation, with the same fears that the internet connection will drop at a critical time, the neighbors will choose that day to begin renovation work, or that a cat filter will appear out of nowhere.^[4] Consequently, we have found the EPO to be understanding of any technical concerns and ready to work with us to resolve these.

^[1] https://www.epo.org/law-practice/case-law-appeals/eba/pending.html

^[2] https://www.epo.org/news-events/news/2021/20210324a.html

^[3]https://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html

^[4] https://www.theguardian.com/us-news/2021/feb/09/texas-lawyer-zoom-cat-fi…

ARTICLE BY K. Victoria Barker, Ph.D. of Maeve O’Flynn of Finnegan

For more articles on virtual proceedings, visit the NLR Litigation / Trial Practice section.

Oops: NASDAQ Seeks to Correct a 2009 Error Re: ADR Listing Requirements

On Wednesday, April 7, 2021, the U.S. Securities and Exchange Commission (“SEC”) issued Release No. 34-91492 publishing a Proposed Rule Change by NASDAQ to amend the requirements for listing ADRs on each of NASDAQ’s Global Select AND Global Markets.

American Depository Receipts

“ADRs” are American Depository Receipts. They have a long history in the U.S. capital markets, having been invented by J.P. Morgan in 1927 to facilitate access to the American stock market by Selfridges, an iconic British department store organized and managed by an American expatriate as the second-largest (after Harrod’s) department store in the UK in 1909 (and featured in a BBC TV series of that name about both the store and Mr. Selfridge). ADRs are depository receipts issued by an American bank when the underlying securities are deposited in a foreign depository bank. There are some interesting complexities about ADR’s depending on whether the ADR is a Level 1 ADR, or whether it is a Level 2 Sponsored ADR, which requires filing a separate registration statement with the SEC. And then there are Level 3 ADRs that require the foreign company to not only file a Form F-1 with the SEC but to adhere either to U.S. GAAP accounting standards OR IFRS as published in the IASB. The April 7 NASDAQ Proposal does not directly impact any of these ADR complexities.

Listing requirements are just that: the conditions a company must meet in order to have its securities traded on NASDAQ. NASDAQ has three market tiers: the Global Select Market, the Global Market, and the Capital Market. The Capital Market is the trading tier with the least stringent requirements for listing. The NASDAQ Global Market requires that the companies seeking to list on it must have some international attributes and substantially higher financial and governance features. The NASDAQ has the most rigorous listing requirements and is the tier for leading international companies.

NASDAQ Listing Requirements

Until 2009, NASDAQ required that at least 400,000 ADRs be issued in order to be listed on any of the three NASDAQ tiers, insure that there would be sufficient liquidity and “depth in the market” to support public trading. Then in 2009, as part of a “housekeeping,” NASDAQ moved the listing requirements for ADRs on the Global Market AND the Global Select Market to a new section of NASDAQ listing requirements that had NO minimum number of ADRs in order to be listed on those tiers. Ironically, the least restricted trading tier RETAINED the 400,000 ADR requirement. Recently, someone at NASDAQ noticed the disparity. Fortunately, NO issue with fewer than 400,000 ADRs has been listed on either the Global Select or Global Market tiers in the 12 years since 2009. Now, NASDAQ seeks to reimpose the 400,000 minimum ADR requirement for ALL NASDAQ tiers. As this proposed change to the listing requirements is a simple reinstatement of a condition accidentally omitted in the 2009 “housekeeping,” and as no present listing will be adversely affected, NASDAQ requested, and the SEC granted, a waiver of the normal 30-day period before a change might take effect.

While, as Alexander Pope wrote: “To err is human, to forgive, divine;” to correct may even be better.

ARTICLE BY Peter D. Hutcheon of Norris McLaughlin P.A.

For more articles on the SEC, visit the NLR Securities & SEC section.

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