The National Law Forum

Pardon My French: France Wins Trademark Dispute Using Sovereign Immunity

The US Court of Appeals for the Fourth Circuit reversed a district’s court denial of sovereign immunity under the Foreign Sovereign Immunity Act (FSIA) and remanded the case to be dismissed with prejudice, holding that France was immune from a trademark infringement claim in the United States brought by the former owner of the domain name France.com. France.com, Inc. v. The French Republic, Case No. 20-1016 (4th Cir. Mar. 25, 2021) (Motz, J.)

Jean-Noel Frydman and his company France.com, Inc. (collectively, Frydman) purchased and registered the domain name France.com and trademarked the name in the United States and in the European Union. In 2015, the Republic of France (RoF) intervened in an ongoing lawsuit between Frydman and a third party, asserting the exclusive right to the use of the term “France” commercially. The RoF also insisted that the use of “France” by a private enterprise infringed on its sovereignty. The Paris District Court agreed and ordered the transfer of the domain name to the RoF.

Frydman filed suit for trademark infringement, expropriation, cybersquatting and reverse domain name hijacking, and federal unfair competition in a Virginia district court against the RoF. The RoF moved to dismiss the claim based on the FSIA. The district court denied the motion, stating that the FSIA immunity defense would be best raised after discovery. The RoF appealed.

The Fourth Circuit first determined, based on Supreme Court precedent, that sovereign immunity was a threshold question to be addressed “as near to the outset of the case as is reasonably possible” and not to be postponed until after discovery.

The Court next considered whether the RoF was immune to suit. The FSIA provides a presumption of immunity for foreign states that can only be overcome if the complaint provides enough information to satisfy one of the specified exceptions. Frydman argued that the commercial activity and expropriation exceptions applied.

The commercial activity exception removes immunity where a foreign state has commercial activity in, or that has a direct effect in, the United States. Essentially, a court must determine whether the actions of the foreign state are those of a sovereign or those of a private party engaged in commerce. The Fourth Circuit first identified that the actual cause of the injury at issue to Frydman was the French court’s ruling that the domain name belonged to the RoF, and found that all claims of wrongdoing by the RoF flowed form the French court’s decision. Additionally, even if it was solely the transfer of the domain name that harmed Frydman, and not the French court’s judgment, the transfer was still based on the French court’s judgment that provided the basis for RoF to obtain the domain name. Because the cause of action was based on the powers of a sovereign nation (the foreign judgment) and not the actions of a private citizen in commerce, the Fourth Circuit found that the commercial activity exception did not apply.

The Fourth Circuit next rejected Frydman’s assertion of the expropriation exception. This exception applies when property is taken in violation of international law that is present in the United States for commercial activity by a foreign state or owned by a foreign agency. The Court first stated that it is unclear whether French judicial decree would be considered an expropriation under the FSIA. Even if it was, however, Frydman did not identify any international laws that were violated, the Court noted. The Court reasoned that because Frydman invoked the power of the French courts in litigation against a separate party, it gave the RoF the right to intervene in the action and take ownership of the domain.

ARTICLE BY Joshua Revilla of McDermott Will & Emery

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

Facebook Defeats Shareholder Suit Challenging Alleged Failures In Its Diversity and Inclusion Practices

In Ocegueda v. Zuckerberg, No. 20-CV-04444, 2021 WL 1056611 (N.D. Cal. Mar. 19, 2021), the United States District Court for the Northern District of California became the first court to rule on a motion to dismiss claims alleging deficiencies in a company’s compliance with policies intended to promote diversity. The plaintiff, a common stockholder of Facebook, Inc. (“Facebook” or the “Company”), alleged claims for breach of fiduciary duty and further alleged defendants made false and misleading statements in the Company’s Proxy Statement in violation of Section 14(a) of the Securities Exchange Act of 1934. The plaintiff alleged that Facebook’s public statements promoting values of diversity and inclusion were at odds with the Company’s alleged practices regarding (i) the hiring and promotion of diverse candidates to senior leadership positions; (ii) purported discriminatory advertising practices; and (iii) alleged hate speech on the Facebook platform. Facebook defeated all of these claims at the motion to dismiss stage largely due to the fact that the complaint did not reflect Facebook’s actual practices of promoting diversity and inclusion—including at the highest levels of the Company. The Ocegueda decision is noteworthy because it provides officers and directors a first glimpse at how a court may approach shareholder claims seeking to hold a corporate board liable for the alleged failed diversity initiatives of a public corporation.

A series of lawsuits in 2018 accusing Facebook of discriminatory advertising served as the genesis for the plaintiff’s claims. In May 2020, Facebook came under public criticism for its refusal to censor a social media post from a prominent politician disparaging the Black Lives Matter movement. Within weeks, more than 100 advertisers (including companies listed on the S&P 500 index) announced a boycott of Facebook and pulled their advertising from the platform. By the end of June, Facebook’s stock dropped 8.3%. Beyond these controversies, the shareholder plaintiff also grounded her claims on the purported lack of diversity on Facebook’s board and among its senior executives. According to the plaintiff, these practices belied statements in Facebook’s 2019 and 2020 Proxy Statements concerning the Company’s “commit[ment] to a policy of inclusiveness and to pursuing diversity in terms of background and perspective” and statement that “[d]iversity and inclusion are core to everything we do at Facebook.”

Despite the incendiary allegations, the district court grounded its order granting defendants’ motion to dismiss on timeworn principles applicable to shareholder claims and claims for fraud under Section 14(a). First, plaintiff failed to make a shareholder demand on the board and failed to plead particularized facts sufficient to show a majority of the directors were capable of exercising their independent business judgment to evaluate the plaintiffs’ claims. The district court supported this finding, holding that: (i) the Company took ample action to combat the allegedly discriminatory advertising practices and the alleged proliferation of hate speech on the platform; and (ii) plaintiff’s allegations concerning the lack of diversity on Facebook’s board and among its senior executives were contradicted by the actual composition of Facebook’s board and senior executives, as the district court recognized: “two of nine directors are Black, a third Black director stepped down in March 2020 to join Berkshire Hathaway, four of nine directors are women, one is openly gay, and, since its adoption of its diversity policy in 2018, a majority of new nominees have been Black or women.” Second, the statements in Facebook’s 2019 and 2020 Proxy Statements could not substantiate a claim under Section 14(a) because they consisted of non-actionable, aspirational “puffery.” Third, the Company’s Certificate of Incorporation provided that the Court of Chancery of the State of Delaware was the “exclusive jurisdiction” for derivative claims and claims of breach of fiduciary duty against Facebook’s officers and directors. Thus, the district court dismissed the derivative breach of fiduciary duty claims on the independent grounds of forum non conveniens.

The decision in Ocegueda is interesting because it shows there is no fundamental hurdle to derivative claims arising for purported corporate harm caused by a company’s non-compliance with diversity and inclusion initiatives. Facebook successfully defeated the derivative claims based, in large part, on the basic principle that courts will not impose derivative liability on corporate directors for an alleged “failure of oversight” over corporate affairs unless a shareholder can allege specific facts showing that a majority of the Company’s directors were aware of serious “red flags” and consciously disregarded them. Looking to the future, California recently signed into law AB 979 (Cal. Corp. Code § 301.4), which requires publicly traded companies located in California to, by the end of 2021, set aside a certain minimum number of director positions for persons from underrepresented communities. Given the high profile nature of this new law, it remains to be seen whether a corporate board that fails to comply with AB 973 may face an increased risk of derivative liability. Until then, there is truly no time like the present for corporations to take a critical eye to their own diversity practices.

ARTICLE BY Alejandro E. Moreno and Chelsea Staskiewicz of Sheppard, Mullin, Richter & Hampton LLP

For more articles on Facebook, visit the NLR Corporate & Business Organizations section.

A Lawyers Spring Cleaning Guide to Decluttering the Intake Process

Spring is upon us and what better time than now for lawyers to clean up a process that can sometimes get messy — the client intake process. Client intake is a pivotal step in converting those hard-earned leads to customers and can leave a lasting impression on your law firm. It’s important to periodically look at what is and is not working in your own firm’s intake process.

Prospective clients will be evaluating your professionalism, skill, personality, and customer service from this moment forward. Not only is it important for lawyers to ask the right questions so they may decide on the best approach to a case, but lawyers additionally need to consider the client experience.

Your prospective client is also interviewing you, wasting time shuffling through paperwork or unorganized files looks unprofessional and could be the difference in winning over that client or not. Keeping this in mind, don’t waste the client’s time with a slow intake process. A streamlined, clutter-free client intake is a win-win, let’s go over some tips in this guide.

Ask yourself the right questions

When thinking about client intake, lawyers should think about themselves first. It may be an odd concept but it will ultimately save you and the client time. The key is to ask enough screening questions to evaluate if the client will be a good fit. To do this, lawyers need to determine their ideal client and have a good understanding of the services their firm can realistically offer.

When evaluating what questions to ask the client, lawyers should consider the following:

What key information do I need for this case?
What is my timeframe?
What type of cases can I take on?
Are there other recommendations I can make if I can’t assist the client?

The answers to these questions will be different for each lawyer but they should get you thinking about what information you will need during client intake. Clients will appreciate lawyers who have a firm understanding of their capabilities and services instead of stretching the truth just to sign a client on board.

Automate your client intake

The easiest way to clean up your client intake is to streamline it with automated forms. Automated forms allow lawyers and their team to easily access and distribute forms to the client without having to jump on the phone or come into the office. This is even more important now that virtual or hybrid offices are here to stay.

Platforms like PracticePanther allow lawyers to create customizable client intake templates that are easily interchangeable and responsive. Implementing automated forms will:

Reduce non-billable hours

Client intake can be time-consuming for busy lawyers. Allowing clients to independently fill out their information will save you time and resources that could be allocated towards managing other aspects of your practice.

Eliminate human error

If your firm is using a paper client intake form or filling out the form on behalf of the client, mistakes can be made. This isn’t to say that you or your team are doing poor work – human error is sometimes inevitable. Transitioning away from paper to an automated form will greatly reduce the potential for human error and increase data accuracy.

Improve the client experience

Accessibility is an important aspect of the client experience. Having the option for the client to fill out the form anytime, anywhere will increase the likelihood they will complete it and in a timely manner. PracticePanther forms were made with this in mind and can be used across all mobile devices.

Provide multiple client intake funnels

Your firm’s marketing strategy should always include multiple client intake funnels. This will increase your online visibility to prospective clients and offer them options to choose platforms they are comfortable with. Whether a potential client is coming from social media, landing pages, ads, or a review website, the intake process should be uniform.

Taking this into account, it’s important to ensure all members of your team are familiar with the intake process and have easy access to the proper forms. Client intake should be a team effort (if your firm is large enough to handle it) especially when prospective clients can come from any platform, at any time. If you operate a solo firm, automating client intake through multiple channels ensures that customer service doesn’t suffer.

Keep it simple

If there’s one thing lawyers want more of, it’s time. Adopting processes and software that offer a “set it and forget it” approach will allow lawyers to focus their time on assisting clients. By using this guide, you’ll be on your way to a tidy intake of clients for seasons to come.

ARTICLE BY Kamron Sanders of PracticePanther

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

Are Your Workplace Policies Compliant with the NLRA?

NLRB issues Memorandum GC-21-03 Signaling Aggressive and Expanded Enforcement of Section 7 Rights

On 31 March 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB), issued Memorandum GC 21-03 (GC 21-03) to the regional field offices signaling significant changes to enforcement priorities under Section 7 of the National Labor Relations Act (NLRA). In part, GC 21-03 indicates that the NLRB will be “robustly enforcing the Act’s provisions that protect employees’ Section 7 rights” and that “cases involving the retaliation against concerted employee conduct will be vigorously pursued.” GC 21-03 cites to increased workplace health and safety issues resulting from the COVID-19 pandemic as well as employees’ political and social justice advocacy concerns as factors necessitating increased enforcement of the NLRA.

NLRA Protections

The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in such activities. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. Some employers are surprised to find that the NLRA protects nearly all employees in the private sector, not only union employees or employees seeking to form or join a union. In fact, concerted activities protected under the NLRA often occur outside of the context of union activity. The NLRA does not cover, however, government employees, agricultural laborers, independent contractors, and supervisors (with limited exceptions).

It is not uncommon for the NLRB and its general counsel to modify or reverse their interpretations of the NLRA with changes in the composition of the Board. The political party of the presidency enjoys majority representation on the NLRB. Consequently, changes in the presidential administration often lead to significant changes for employers. GC 21-03 is emblematic of that trend. It states that “recent decisions issued by the current Board have restricted [Section 7 rights] for employees.” Specifically, GC 21-03 criticizes Alstate Maintenance¹ and Quicken Loans² for applying “mutual aid and protection” narrowly. The enforcement priorities highlighted in GC 21-03 are in stark contrast to enforcement priorities under the previous administration and a clear indication that employers should expect increased NLRB oversight for the foreseeable future.

Broadened Concerted Activities for Mutual Aid and Protection

Section 7 of the NLRA grants all covered employees the right to engage in “concerted” activities for the purpose of “mutual aid or protection.” The phrase “mutual aid or protection” focuses on “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.”³ GC 21-03 indicates that such a link will be broadly construed, and it outlines an expansive characterization of what constitutes protected, concerted activity. As noted in GC 21-03, employee advocacy can have the goal of “mutual aid or protection” even when the employees have not explicitly connected their activity to workplace concerns. As examples, GC 21-03 cites to a solo strike by a pizza shop employee to attend a convention; protests in response to a sudden crackdown on undocumented immigrants or social justice concerns; and a hotel interview with a journalist concerning minimum wage issues. In addition, GC 21-03 highlights how concerted activity can occur outside of the context of union activity—such as when employees raise health and safety issues resulting from the COVID-19 pandemic or seek protections from government agencies.

Renewed Application of Inherenty Concerted Conduct

In addition to a clear directive to interpret concerted and protected activity more broadly under the NLRA, GC 21-03 also signals a renewed enforcement of conduct that is deemed “inherently concerted.” As noted in GC 21-03, employee conduct generally becomes concerted when it is “engaged in with or on the authority of other employees”⁴ or when an employee seeks either “to initiate or to induce or to prepare for group action.”⁵ In other words, concerted conduct revolves around employees’ intention to band together to improve their wages or working conditions. However, contemplation of group action is not required and employee discussions surrounding certain employment policies may be sufficient to constitute inherently concerted activity—even if group action has not yet been contemplated or is in its early stages. Indeed, as noted in GC 21-03, inherently concerted conduct need only involve a “speaker and a listener.” Further, GC 21-03 emphasizes that there are no “magic works” required for concert to attach. However, the NLRB has previously found that certain categories of workplace life have been found to be “inherently concerted”—namely, exchanges of information concerning (i) wages or wage differentials, (ii) changes in work schedules, (iii) job security, (iv) workplace health and safety, and (v) racial discrimination. GC 21-03 expressly warns that the NLRB will be considering such categories as well as “other applications of the inherently concerted doctrine” for the foreseeable future.

Key Takeaways

Employers should work with their counsel to ensure their workplace policies are compliant with the NLRA, including the expansive definition of protected conduct that will be enforced for the foreseeable future.
Employers should expect an increase in NLRB oversight and NLRA enforcement.
Employers should expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct.
Employers should exercise caution when deciding whether or not to discipline or discharge employees who have engaged in discussions or activities related to workplace health and safety (importantly as related to the COVID-19 pandemic), social justice issues, or political views.

_{1 367 NLRB No. 68 (2019).}

_{2 367 NLRB No. 112 (2019).}

_{3 Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB 151, 153 (2014).}

_{4 Meyers Indus., 268 NLRB 493, 497 (1984) (Meyers 1), remanded sub nom. Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. den. 474 U.S. 948 (1985).}

_{5 Meyers Indus., 281 NLRB 882, 887 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert. den. 487 U.S. 1205 (1988).}

ARTICLE BY Rosemary Alito and Rio J. Gonzalez of K&L Gates

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

Virginia Accelerates Adult-Use Cannabis Legalization

We previously highlighted the Virginia Legislature’s move to legalize adult-use cannabis. This week the Virginia Legislature passed a bill legalizing adult-use cannabis. In doing so, Virginia greatly accelerated the timeline for legalization.

Prior drafts had set a 2024 date for legalizing the possession of recreational cannabis. The bill passed this week when Lieutenant Governor, Justin Fairfax, broke a 20-20 tie in the Virginia Senate legalizes adult possession of an ounce or less of cannabis beginning on July 1, 2021.

While the new law legalizes recreational possession and allows Virginia residents to grow up to four cannabis plants beginning July 1^st, Virginia still isn’t likely to begin licensing recreational cannabis retailers until 2024. Likewise, the new bill doesn’t allow existing medical cannabis dispensaries to begin selling to adults for recreational use.

ARTICLE BY Morgan E. Persinger of Womble Bond Dickinson (US) LLP

For more articles on cannabis, visit the NLR Biotech, Food, Drug section.

Supreme Court Finds Google’s Use of Oracle’s Java Code in Android Operating System to Be Fair Use

On April 5, 2021, the Supreme Court of the United States held that Google’s use of certain Java Application Programming Interfaces (API) in its Android operating system was not copyright infringement and instead constituted fair use of Oracle’s Sun Java API because Google used “only what was needed to allow users to put their accrued talents to work in a new and transformative program.” In its decision, the Supreme Court articulated important policy considerations underlying its decision, noting that, “given programmers’ investment in learning the Sun Java API here would risk harm to the public. Given the costs and difficulties of producing alternative APIs with similar appeal to programmers, allowing enforcement here would make of the Sun Java API’s declaring code a lock limiting the future creativity of new programs” and interfere with the basic objectives of copyright law. In sum, the Supreme Court relied on policy considerations relating to the ability of programmers to use existing code to support the interoperability of software, a common practice that many in the industry advocated as a practice necessary to sustain the feasibility of mobile computing.

This case spans nearly a decade of litigation between Oracle and Google. After negotiations broke down between Google and Oracle’s predecessor to license the entire Java platform for development of Google’s Android operating system, Google developed its own platform tailored to be used exclusively with Android smartphone technology. In developing the platform, Google wrote millions of lines of unique code, but also copied 11,500 lines of code from the Java SE API. The API operated to identify and group tasks and to call up prewritten software to carry out those tasks. Google’s own code operated to actually carry out the called-up task. After Oracle acquired the owner of the Java SE API and its corresponding copyrights, Oracle sued Google for copyright infringement.

Importantly, the Supreme Court did not address the question of whether the API was eligible for copyright protection. Instead, for purposes of this case, the Supreme Court assumed the API was copyrightable, and held that Google’s use thereof was a fair use and did not violate copyright law. Writing for the majority, Justice Breyer examined the four guiding principles identified in the Copyright Act’s fair use provision: (1) the nature of the copyrighted work; (2) the purpose and character of the use; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The Court found that all four factors weighed in favor of fair use.

The Supreme Court defined the nature of the work as a user interface, thus, the API was “inextricably bound up” with an organizational system—which is not copyrightable—and with an implementation system—which is copyrightable (but was not copied in this case). The Court held that overall, the program is further from “the core of copyright” than most computer programs and that this weighed in favor of fair use.

The Supreme Court held that Google’s use of the program was transformative in that its purpose was to create new products through the Android platform. The Court found this use was consistent with the constitutional objective of the Copyright Act to promote creative progress, which also weighed in favor of fair use.

With respect to the amount and substantiality of the portion of code used in relation to the copyrighted work as a whole, the Court did not consider the 11,500 lines of code as a single complete work but rather as a small part of a larger program consisting of several million lines of code—the rest of which Google did not copy. The court found that this factor weighed in favor of fair use.

Finally, in considering the effect of the use on the market, the record showed both that Google’s new smartphone platform was not a market equivalent of Java SE and that Java SE’s copyright holder would benefit from the reimplementation of its user interface into a different market. The Supreme Court held that enforcing copyrights based on the facts in this case would cause “creativity-related harms to the public” favoring fair use.

The Court’s detailed analysis of copyright fair use in the context of software programming provides much-needed clarification for software developers that engage in the common practice of using and reusing interfaces written by others. The Supreme Court, however, left open the question of whether such code is copyrightable as a matter of law. In a scathing dissent, Justice Thomas wrote that this decision “eviscerates copyright” and that the only reason the majority chose not to address the question of copyrightability was “because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable.” Whether such programming code is subject to copyright protection as a matter of law will likely be the subject of future debate and lawsuits alongside the ever-developing landscape of software programming.

2021 Goulston & Storrs PC.

ARTICLE BY Rebecca Harris of Goulston & Storrs

For more articles on Fair Use, visit the NLR Intellectual Property section.

Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria

The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.

Travel Restrictions Based on Country of Physical Presence

Presidential Proclamation	Current Status	Impact
Proclamation 9984	In effect	Suspends and limits entry into the United States by individuals who were physically present in China during the 14-day period prior to their entry/attempted entry
Proclamation 9992	In effect	Suspends and limits entry into the United States by individuals who were physically present in Iran during the 14-day period prior to their entry/attempted entry
Proclamation 9993	Revoked	Suspended and limited entry into the United States by individuals who were physically present in the Schengen Area during the 14-day period prior to their entry/attempted entry
Proclamation 9996	Revoked	Suspended and limited entry into the United States by individuals who were physically present in the United Kingdom and Ireland during the 14-day period prior to their entry/attempted entry
Proclamation 10041	Revoked	Suspended and limited entry into the United States by individuals who were physically present in Brazil during the 14-day period prior to their entry/attempted entry
Proclamation 10143	In effect	Suspends and limits entry into the United States by individuals who were physically present in South Africa, the Schengen Area, the United Kingdom, Ireland, and Brazil during the 14-day period prior to their entry/attempted entry

Following the issuance of Proclamation 10143, the State Department rescinded previous NIE guidance and simultaneously issued new guidance on March 2, 2021, as related to the Schengen Area, the United Kingdom, and Ireland. According to the State Department, the original guidance had provided exceptions for “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” However, the updated guidance includes exceptions under Proclamation 10143 for individuals who “provide vital support for critical infrastructure.” [Emphasis added.] Additionally, NIEs remain available for individuals entering the United States “for purposes related to humanitarian travel, public health response, and national security.”

Travel Restrictions Based on Visa Type

On April 22, 2020, the Trump administration issued Proclamation 10014 suspending the entry of individuals to the United States on immigrant visas. This proclamation did not affect applications for adjustment of status or nonimmigrants, such as business visitors or temporary workers. On June 22, 2020, the Trump administration issued Proclamation 10052, which extended the sunset date of Proclamation 10014 to December 31, 2020. Proclamation 10052 also suspended the entry of certain individuals to the United States on select nonimmigrant visas, including H-1B, H-2B, J-1, and L-1 visa holders, as well as their dependents through the end of the year. On December 31, 2020, the Trump administration issued Proclamation 10131, extending Proclamations 10014 and 10052 until March 31, 2021. On February 24, 2021, the Biden administration revoked Proclamation 10014 and section 1 of Proclamation 10052. The Biden administration allowed the remaining sections of Proclamation 10052 to expire on March 31, 2021, and has not expressed any plans to renew or replace it at this time. As a result, Proclamations 10014 and 10052 are no longer in effect.

Backlogs Remain for Most Consular Operations

While the expiration of Proclamation 10052 is certainly welcome news, foreign nationals should not expect immediate processing of their visa applications. The backlog of cases pending at the U.S. consulates around the world remains an ongoing issue due to COVID-19. The U.S. consular posts have confirmed they will begin a phased resumption of routine visa services based on local conditions but no specific timeline is available. Additionally, applicants who are no longer subject to Proclamation 10052 may still face obstacles entering the United States due to country-specific travel restrictions. Foreign nationals who are subject to country-specific travel bans will continue to require an NIE authorizing each entry to the United States.

ARTICLE BY Ashley K. Kerr and Melissa Manna of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on COVID-19 travel restrictions, visit the NLR Immigration section.

Legislation to Create a Pathway to Legalization Passes House and Goes to Senate

On March 18, 2021, the House passed two bills designed to create paths to legalization for certain groups of immigrants. Both the Dream and Promise Act of 2021 and the Farm Workforce Modernization Act have been sent to the Senate.

American Dream and Promise Act

Legislation that will create a route for legalization for Dreamers (residents who were brought to the United States as children) has passed the House. The legislation received bipartisan support, although a closer battle can be expected in the Senate. The bill passed 228-197, with nine Republicans joining the Democrats.

The bill’s sponsor said that this legislation will bring relief to 2.5 million undocumented immigrants. The legislation covers all the undocumented immigrants who entered the U.S at the age of 18 years or younger. This legislation also includes immigrants who have protection under the Deferred Action for Childhood Arrivals (DACA). It would also provide a path to legal status for individuals with Temporary Protected Status (TPS) as of 2017 and Deferred Enforced Departure (DED), which are the two forms of temporary protection for immigrants from countries that face a crisis.

The bill “eliminates the ambiguity in their lives and recognizes the talents and indispensable contributions Dreamers make to our country,” Rep. Lucille Roybal-Allard, a primary sponsor, said on the House floor. “Some are married or educated, they speak the language, they’re working, they pay the taxes,” said Rep. Fred Upton of Michigan. “When you get to know these people, and I do, it breaks your heart.”

Pathway to Legalization

The Biden administration expressed its support for this legislation in a statement before the vote on March 18. “Americans recognize that our Nation is enriched by the contributions of immigrants. [The bill] is a critical milestone toward much-needed relief for the millions of undocumented individuals who call the United States home,” the statement said.

Farm Workforce Modernization Act

The House also passed the Farm Workforce Modernization Act by a 247-174 vote. Thirty Republicans voted for the bill, while one Democrat voted against it.

The legislation will provide a temporary status, Certified Agricultural Workers, for those who were agricultural workers for at least 180 days during the past two years. Spouses and children of the workers can also apply under the Act. Undocumented farmworkers will have to pay a fine and engage in additional agricultural work depending on their length of period they have performed agricultural labor in the United States.

Those with ten years of previous agricultural experience will be eligible to apply for a green card after working four more years. Those with less than ten years of experience will have to work eight more years to apply.

The legislation also streamlines the process to get an H-2A visa, which is a work visa for foreign citizens to work temporarily in the United States. This bill is seen as a welcome measure for many in the agricultural sector, as there has always been a dearth of farmworkers in the United States. Undocumented farmworkers are especially vulnerable to the COVID-19 virus, as they have limited access to medical facilities and are often underpaid due to their immigration status.

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.

For more articles on immigration, visit the NLR Immigration section.

Legal Industry News Update: Women’s History and Achievement, Legal Industry Innovation and Professional Moves

We’re back with another edition of our latest legal and consulting industry news column, focusing on women’s history and achievement in the legal industry, coronavirus legal innovations and professional moves. Read on for all the latest updates:

Legal Industry Professional Moves

Legal operations veteran Bob Taylor joined Deloitte Legal Business Services team as a managing director based in Boston. Taylor will focus on business of law and legal department transformation at Deloitte Tax.

Mr.Taylor has 25 years of experience as senior corporate counsel and manager at Liberty Mutual in the company’s legal operations function.

Dr. Darrell G. Kirch, president emeritus of the Association of American Medical Colleges (AAMC), joined Manatt, Phelps & Phillips as an advisor in Washington, D.C. Dr. Kirch was the president and CEO of AAMC from 2006 to 2019 and prior to his tenure at the AAMC, Dr. Kirch served as dean, university senior vice president and academic health system leader of two medical institutions: the Medical College of Georgia and the Pennsylvania State University Milton S. Hershey Medical Center. At Manett, Dr. Kirch will work with the firm to enhance its healthcare policy and legal practice with the nation’s leading academic health care institutions.

“Innovation and transformation are our guiding principles as we advise our clients and help them navigate today’s new economy,” said Donna L. Wilson, Manatt’s CEO and Managing Partner. “Darrell’s impressive background and commitment to being an agent of change embody this ethos, making him an ideal fit to our integrated legal and consulting platform.”

Carlos M. Velazquez was named Senior Counsel at Ditchik & Ditchik, PLLC. Mr. Velazquez brings 50 years of New York real estate tax litigation experience, advising NYC real estate developers, landlords and hoteliers on the particular ecosystem of New York real estate and will serve in a leadership capacity at the firm alongside Managing Partner Joel Ditchik and Partner Steven Tishco.

“Ditchik & Ditchik’s approach to this niche field of law is unmatched. I am delighted to join its established group of pioneering tax certiorari lawyers,” said Mr. Velazquez. “I look forward to applying my experience and skills to serve the firm’s impressive client base.”

Managing Partner, Joel Ditchik, expressed confidence in the contribution Mr. Velazquez will make to the firm, saying that “Carlos will not only offer astute leadership to our attorneys, but will continue to grow our firm’s capabilities across the full range of property tax law services to our loyal clientele.”

Legal Industry Innovation

Documate, a San Francisco-based legal software provider, received the 2021 Louis M. Brown Award for Legal Access from the American Bar Association’s Standing Committee on the Delivery of Legal Services (ABA). Documate increases access to legal services for those of modest means through its platform that allows attorneys to easily automate documents, principally through its “no-code” platform that allows attorneys to create tools to expand their service offerings without the need to hire a software developer. Documate software is used by courts, legal aid organizations as well as private attorneys.

Another initiative recognized by the ABA with a Louis M. Brown Select Award includes COVID H.E.L.P. Illinois, a pandemic-inspired free to use tool designed to help anyone in Illinois with legal problems related to the pandemic which was created by a group of Illinois legal aid programs, including CARPLS Legal Aid, Illinois Legal Aid Online, Legal Aid Chicago, Land of Lincoln Legal Assistance, Prairie State Legal Services, Westside Justice Center, and others and was funded through a grant from the Lawyers Trust Fund of Illinois.

The awards are scheduled to be presented at the ABA Annual Meeting August 4 – 10, 2021.

Thomson Reuters is introducing improvements to HighQ, 3E and Marketplace. The new version of Thomson Reuters HighQ has over 60 new features for enhanced workflow collaboration. HighQ and 3E help corporate and government legal departments, as well as law firms, deliver customer-driven enhancements and customizations, improving project management, contract management and managing critical files with more flexibility.

“Over the past year, our customers have relied on HighQ to improve their productivity and serve their clients at the highest level, all at a time of unparalleled disruption,” said Chris Kitchener, vice president, Product Management for Thomson Reuters HighQ. “Version 5.5 brings new features and tools to multiple use cases, with significant enhancements to the legal project management and contract lifecycle management capabilities. Additionally, much of the work done to this point has laid a strong foundation for what is yet to come for HighQ this year, anchored by significant upgrades and key product integrations.”

Thomson Reuters Marketplace allows users to find and test solutions to extend the functionality of existing products for legal and tax professionals. Marketplace offers over 120 add-on enhancements and integrations across 18 categories ranging from contract / document management and automation and CRM / business development tools to timekeeping and billing integrations.

“We anticipate further cloud adoption and acceleration in the digitization of how legal work gets done,” Fischer said. “Through our content-driven technology, we are continuing to innovate and deliver products and new features, focusing on customer input to really move the dial on connectedness and productivity, so legal professionals can make the most of their new skills and implement technologies that create a competitive advantage.”

The American Arbitration Association-International Centre for Dispute Resolution (AAA-ICDR) has developed an integrated smart videoconferencing technology platform to provide a seamless virtual arbitration experience which is helpful with current social distancing rules and travel restrictions.

The camera system is a hands-free system, where up to seven cameras can be positioned around the room. The cameras are activated by the voice of the speaker. The recording capabilities are built-in, so proceedings are easily archived. All participants, whether present or are completely remote, can easily engage.

Michael A. Marra, the VP of AAA ICDR’s Construction Division said that “COVID19 has changed everything, but no matter how long social distancing and other pandemic rules remain in effect, or what the post-pandemic reality looks like, the AAA-ICDR is positioned to ensure people receive uninterrupted ADR services even if not everyone involved can be in the same room or venue.”

Women’s History & Achievement

Stradley Ronon Associate Aliza S. Dominey was selected for the 100 Women in Finance’s Washington D.C. Education Committee where she plans philanthropy, peer engagement and educational events to help progress the careers of women in the financial services industry.

At Stradley Ronon, Ms. Dominey counsels investment companies and private funds on regulatory, compliance and transactional issues, in addition to reviewing registration statements, proxy solicitation materials and researching various securities and corporate law issues; and preparing board materials.

100 Women in Finance has nearly 20,000 registered members and works to strengthen the global finance industry by empowering women to achieve their professional potential at each career stage.

Eve Howard, Global Head of Capital Markets at Hogan Lovells, was selected as a member of the DirectWomen Board Institute class 2020-2021. General Counsel of Fortune 500 companies, senior partners of law firms, and lawyers from private equity and government are selected after a thorough selection process, and attend the DirectWomen Board Institute, taught by CEOs, C-suite executives, and directors of public companies.

Since its inception, more than 215 women have participated in the Board Institute, and more than a third of the Board Institute’s alumnae have been elected to serve as directors of major companies, including Tesla, Inc., Visa Inc., The TJX Companies, Inc., Valero Energy Corporation, Party City Holdco Inc., Intercontinental Exchange, Inc., and many others.

Ms. Howard, a partner at Hogan Lovell’s Washington D.C office, and Global Head of the firm’s Capital Markets practice has more than 30 years of experience structuring and negotiating complex corporate transactions and serving as a trusted advisor to public company clients. Howard has also served on Hogan Lovells’ International Management Committee.

Per Howard:

“I am honored to be selected to participate in DirectWomen Board Institute’s prestigious program. DirectWomen aims to increase the representation of women lawyers on corporate boards and serves as a great opportunity for those with a wide range of business knowledge and experience in their industries to bring that expertise to the boardroom.”

The Board Institute will be held in New York in October 2021.

Jacquelyn E. Stone, a partner with decades of experience advising clients on government relations, regulatory and immigration matters at McGuireWoods, won the Phoebe P. Hall Mentorship Award from the Metro Richmond Women’s Bar Association (MRWBA).

Ms. Stone is based in Richmond, VA and has worked as a mentor with several organizations, focusing on helping the next generation succeed in the legal industry, including Just the Beginning—A pipeline organization to create opportunities for underrepresented groups to pursue legal career and Partnership for the Future, a college prep and workforce development program for Richmond area high school students.

“I am honored to receive this prestigious award from the Metro Richmond Women’s Bar Association,” said Stone. “It’s important for me to be a mentor, to share my experiences and help others on their path to personal and professional success.”

Ms. Stone was the first African-American woman to be named a partner at a major Virginia law firm, and she was also is the first African American to serve on McGuireWoods’ Board of Partners. At McGuireWoods, she created the Diversity & Inclusion Committee in 2006 and served as its chair until 2017.

ARTICLE BY Eilene Spear, Rachel Popa and Hanna Taylor of The National Law Review / The National Law Forum LLC

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

SEC Ventures Into The Dark Web, But Can It Establish A Connection?

In March, the Securities and Exchange Commission announced its first securities enforcement action involving the “dark web”. The SEC’s complaint describes the “dark web” as referring to “a subset of the deep web that is intentionally hidden, requiring specific software to access content”. The SEC states that the “deep web” refers to “anything on the internet that is not indexed by, or accessible via, a search engine like Google”.

The SEC’s complaint alleges that the defendant “offered and sold on one of the dark web marketplaces various purported
‘insider tips’ that he falsely described as material, nonpublic information from the insider trading forum or corporate insiders”. I found this interesting because the SEC wasn’t charging the defendant with insider trading but with selling false insider tips. This may be fraudulent, but is it it a securities law violation? Stock tips, whether false or true, are not themselves securities. How does the SEC bring the defendant’s allegedly fraudulent conduct under the securities laws?

To establish a violation of Rule 10b-5, the SEC must prove that the defendant’s activities were “in connection with” the purchase or sale of a security. Here, the defendant’s deception did not relate to securities that he sold to investors. The SEC’s complaint attempts to connect the defendant’s activities to securities transactions by alleging that traders paid for the tips using Bitcoin, and used the fake insider information to purchase and sell stock of various publicly traded companies. In SEC v. Zandford, 535 U.S. 813 (2002), the U.S. Supreme Court found that the person deceived do not have to be counterparties to the person committing the fraud. However, the defendant in this case might argue that his fraud was complete when he sold the false tips and therefore the SEC cannot establish the requisite connection. I will be interested to learn whether this becomes a contested issue at trial.

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

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

The National Law Forum

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