Ninth Circuit Drowns Out Alkaline Water Suit

The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Trader Joe’s misled consumers by representing its Alkaline Water product as “ionized to achieve the perfect balance.”  In rejecting plaintiff’ allegations that the advertising referred to balancing the consumer’s internal pH rather than the balanced pH of the product itself, the Court recognized “a reasonable consumer does not check her common sense at the door of a store.”  Weiss v. Trader Joe’s, No. 19-55841 (9th Cir. Mar. 3, 2021).

The Alkaline Water product label states the water is “ionized to pH 9.5+,” will “refresh & hydrate,” and depicts “hundreds of plus symbols.”  An advertisement for the water in Trader Joe’s store newsletter likewise touted that the water was purified and charged through electrolysis, changing the structure of the water and raising the pH to 9.5+, making the product “water and then some.” Plaintiff alleged these representations were misleading because they implied that the water would “balance” a consumer’s internal pH after he or she has eaten acidic foods and would provide superior hydration as compared to other water.

The district court found several of these representations (including “water and then some,” “a drink that can satisfy,” and “refresh”) constituted non-actionable puffery.  The remaining challenged statements concerning the drink’s pH and ionization, the court found, would not mislead a reasonable consumer.

Agreeing with the district court’s analysis, the Ninth Circuit likewise found a reasonable consumer would not misinterpret these representations as suggesting internal pH balancing benefits or superior hydration.  When considered in the context of the package as a whole, the Court found the phrase “ionized to achieve the perfect balance” clearly referred to the water itself being balanced – rather than to balance within the body.

The Ninth Circuit also rejected plaintiff’s allegation that the term “hydrate” would mislead consumers into believing the water provided better hydration than other water. Plaintiff did not dispute that the water does, in fact, “hydrate.”  Finding this statement about the water’s hydrating capability true and undisputed, the Ninth Circuit agreed with the district court that it would not plausibly deceive a reasonable consumer.

The Court also affirmed the district court’s dismissal of plaintiffs’ breach of warranty claims based on the same advertising. The Court noted that though the reasonable consumer standard technically does not apply to warranty claims, those claims still require some sort of actionable representation. No such misrepresentation existed here because nothing in the challenged labeling promised health benefits or superior hydration.

This case serves as a reminder that allegations founded on fanciful interpretations of advertising claims may cause a “splash” when filed, but courts exercising common sense will not hesitate to dispose of them at the pleading stage.  While the Ninth Circuit’s decision in Weiss is unpublished, it is consistent with other precedential decisions from the court.  See for example Ebner v. Fresh, 838 F.3d 958 (9th Cir. 2016) – a case we have previously blogged about.

© 2020 Proskauer Rose LLP.
For more articles on water lawsuits, visit the NLR

Temporary Suspension of Entry Ends for Certain H, L, J Visa Categories

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis P.C. © 2020

ARTICLE BY John E. Exner IV of Jackson Lewis P.C.
For more articles on visas, visit the NLR Immigration section.

American Jobs Plan, By the Numbers

On March 31, 2021, President Biden released details on the American Jobs Plan, which provides funding for infrastructure, clean energy, innovation and R&D, manufacturing and workplace support, and the caregiving economy. The proposal also includes revenue increase proposals to partially offset the new initiatives. Here is a summary of the amounts proposed in each major category:

INFRASTRUCTURE AND CLEAN ENERGY
Transportation Infrastructure $ 621 billion
Roads and Bridges $ 115 billion  
Public transit $ 85 billion  
Passenger and Freight Rail $ 80 billion  
Road safety $ 20 billion  
Electric vehicles $ 174 billion  
Airports, ports, waterways $ 42 billion  
Reconnect neighborhoods $ 20 billion  
Large projects $ 25 billion  
Resilience $ 50 billion  
Other $ 10 billion  
Water, Electricity, Broadband $ 311 billion
Drinking water $ 111 billion  
EPA state fund ($45 billion)    
Water systems ($56 billion)    
PFAS ($10 billion)    
Broadband $ 100 billion  
Electric Power $ 100 billion  
Electric grid    
Extend clean energy ITC, PTC; establish EECES    
Reclamation ($16 billion)    
Brownfield, Superfund ($5 billion)    
Carbon capture and sequestration    
Civilian Conservation Corps ($10 billion)    
Homes and Buildings $ 378 billion
Retrofit Homes and Buildings $ 213 billion  
Affordable rental housing    
NHIA tax credits ($20 billion)    
Zoning incentives    
Public housing ($40 billion)    
Clean Energy Accelerator ($27 billion)    
Education and Child Care Facilities $ 137 billion  
Public School modernization ($ 100 billion)    
Community Colleges ($ 12 billion)    
Child Care ($25 billion)    
VA Hospitals $ 18 billion  
Federal Buildings $ 10 billion  
SUBTOTAL, INFRASTRUCTURE AND CLEAN ENERGY $ 1.310 trillion
CAREGIVING ECONOMY
Expand Medicaid Home and Community-based Care $ 400 billion
INNOVATION AND R&D
Future technologies $ 180 billion
NSF $ 50 billion  
Rural, additional R&D $ 30 billion  
Research labs $ 40 billion  
Climate R&D $ 35 billion  
HBCUs/MSIs $ 25 billion  
Retool and revitalize manufacturing $ 300 billion
Commerce supply chains $ 50 billion  
Semiconductors $ 50 billion  
Medical countermeasures $ 30 billion  
Clean energy (EV, nuclear) $ 46 billion  
Regional innovation hubs $ 20 billion  
NIST $ 14 billion  
Manufacturing extension partnerships $ 2 billion  
Capital access, sec. 48C $ 52 billion  
Small business incubators $ 31 billion  
Rural Partnership program $ 5 billion  
Workforce Development $ 100 billion
Dislocated Workers program $ 40 billion  
Underserved communities $ 12 billion  
Apprenticeships, STEM $ 48 billion  
SUBTOTAL, INNOVATION AND R&D $ 580 billion
     
TOTAL $ 2.290 trillion

LABOR REFORMS

  • Enact the Protecting the Right to Organize Act
  • Apply labor standards to infrastructure, clean energy funding recipients
  • Increased penalties for workplace safety and health violations

REVENUES

  • Raise Corporate Rate to 28%
  • Increase Global Minimum Tax to 21%
  • Global agreement on minimum corporate tax
  • Limit Corporate Inversions
  • Deny Offshoring deductions, create Onshoring credit
  • Repeal Foreign Derived Intangible Income deduction
  • 15% minimum on corporate book income
  • Eliminate fossil fuel tax incentives
  • Increase corporate enforcement
    ©2020 Greenberg Traurig, LLP. All rights reserved.

    For more articles on the American Jobs Plan, visit the NLR Coronavirus News section.

COBRA Alert: Enhanced Benefits for Those Eligible

On March 11, 2021, President Biden signed into law the American Rescue Plan Act (ARPA), which provides important health insurance benefits to certain eligible individuals. Specifically, the ARPA requires employers to cover 100% of Consolidated Omnibus Budget Reconciliation Act (COBRA) premiums from April 1, 2021, through September 30, 2021, for former employees who:

  • Became COBRA-eligible in or after November 2019;
  • Lost employer-sponsored health insurance because of an involuntary termination of employment or because of an involuntary reduction in hours; and
  • (1) Elected COBRA; (2) elected COBRA but let the coverage lapse; or (3) did not elect COBRA.

Former employees are not eligible for the ARPA COBRA subsidy if they:

  • Resigned voluntarily, or voluntarily reduced their hours;
  • Were terminated for gross misconduct;
  • Are now covered under another group health plan; or
  • Are Medicare-eligible.

Note, if COBRA coverage is set to expire before September 30, 2021, ARPA does not extend the expiration date; and many questions remain. For instance, does the ARPA COBRA subsidy extend to those who left employment per a mutual decision, for “good reason” under an employment agreement, or pursuant to a voluntary exit incentive plan? The Department of Labor is currently drafting regulations and guidance that should help answer these questions.

What Do Eligible Former Employees Need To Do?

For anyone who is covered by COBRA as of April 1, 2021, nothing needs to be done. It is up to the employer or the employer’s health insurance carrier to ensure that the premiums are paid for the relevant period. For those who let COBRA lapse or had not elected COBRA, the employer or the health insurance provider must provide notice of the new benefit and of a new enrollment period. The new enrollment period begins on April 1, 2021 and ends 60 days from delivery of the ARPA COBRA notification.

If you believe you may be entitled to coverage, are interested in receiving the benefits, and are not contacted by your former employer or their provider in the next few weeks, consider reaching out to the employer’s Human Resources Department or the insurance carrier to ask for information about your COBRA benefits under ARPA, or contact your employment lawyer.

© 2020 SHERIN AND LODGEN LLP

ARTICLE BY Gavriela M. Bogin-Farber of Sherin and Lodgen LLP
For more articles on COBRA, visit the NLR Corporate & Business Organizations section.

CFPB Suit Against Student Loan Trusts Dismissed

On March 26, 2021, Judge Maryellen Noreika of the U.S. District Court for the District of Delaware dismissed a lawsuit brought by the Consumer Financial Protection Bureau (“CFPB”) in Consumer Financial Protection Bureau v. The National Collegiate Master Student Loan Trusts,1 finding, inter alia, that the CFPB’s suit was constitutionally defective due to the CFPB’s untimely attempt to ratify the prosecution of the litigation in the wake of the Supreme Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau.  This case has been closely watched by many participants in the structured finance industry, because the litigants had disputed over the question of whether the trusts at issue in the litigation are “covered persons” liable under the Consumer Financial Protection Act despite their status as passive securitization trust entities—a question that has important and wide-reaching implications for the structured finance markets.

Background

The National Collegiate Student Loan Trusts (the “Trusts”) hold more than 800,000 private student loans through 15 different Delaware statutory trusts created between 2001 and 2007, totaling approximately $12 billion.  The loans originally were made to students by private banks.  The Trusts provided financing for the student loans by selling notes to investors in securitization transactions.  The Trusts also provided for the servicing of and collection on those student loans by engaging third-party servicers.  However, the Trusts themselves are passive special purpose entities lacking employees or internal management; instead, to operate, the Trusts relied on various interlocking trust-related agreements with multiple third-party service providers to—among other things—administer each of the Trusts, determine the relative priority of economic interests in the Trusts, and service the Trusts’ loans.

On September 4, 2014, the CPFB issued a civil investigative demand (“CID”) to each of the Trusts for information concerning thousands of allegedly illegal student loan debt collection lawsuits used to collect on defaulted loans held by the Trusts.  On May 9, 2016, the CFPB alerted the Trusts to the fact that the CFPB was considering initiating enforcement proceedings against the Trusts based on the collection lawsuits through a Notice and Opportunity to Respond and Advice (“NORA”).  A few weeks later, the law firm McCarter & English, LLP (“McCarter”), purporting to represent the Trusts, submitted a NORA response to the CFPB.  McCarter and the CFPB then proceeded to negotiate a Proposed Consent Judgment to resolve the CFPB’s investigation of the Trusts.

The Litigation

On September 18, 2017, the CFPB filed suit against the Trusts in Delaware federal court (the “Court”), alleging that the Trusts had violated the Consumer Financial Protection Act of 2010 (the “CFPA”) by engaging in unfair and deceptive practices in connection with their servicing and collection of student loans.  Although the CFPB acknowledged that the Trusts had no employees and that the alleged misconduct resulted from actions taken by the Trusts’ servicers and sub-servicers in the course of their debt collection activities—rather than any actions taken by the Trusts themselves—the CFPB nonetheless named only  the Trusts as defendants.  On the same day, the CFPB also filed a motion to approve the Proposed Consent Judgment negotiated with McCarter.

However, within days of the CFPB’s initiation of the lawsuit, multiple parties associated with the Trusts intervened in the litigation to argue against the entry of the Proposed Consent Judgment.  The intervenors expressed concern that the entry of the Proposed Consent Judgment would impermissibly impair or rewrite their respective contractual obligations as set forth in the agreements underlying the Trusts.  After discovery, on May 31, 2020, the Court denied the CFPB’s motion to approve the Proposed Consent Judgement, holding that McCarter lacked authority to execute the Proposed Consent Judgment pursuant to terms of the agreements governing the Trusts and Delaware law.

On June 29, 2020, in another lawsuit involving the CFPB, the United States Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau that the CFPB’s structure violated the Constitution’s separation of powers.2  Specifically, the Supreme Court held that “an independent agency led by a single Director and vested with significant executive power” has “no basis in history and no place in our constitutional structure,”3 and that the statutory restriction on the President’s authority to remove the CFPB’s Director only for “inefficiency, neglect, or malfeasance” violated the separation of powers.4  The Supreme Court then concluded that the proper remedy was to sever the removal restriction, and ultimately allowed the CFPB to stand.  The Supreme Court also noted that an enforcement action that the CFPB had filed to enforce a CID while its structure was unconstitutional may nonetheless be enforceable if it was later successfully ratified by an acting director of the CFPB who was removable at will by the President.  If not so ratified, however, the enforcement action must be dismissed.

Around the time the Supreme Court issued its decision in Seila Law, various intervenors were briefing multiple motions to dismiss the CFPB’s complaint against the Trusts.  One subset of intervenors—Ambac Assurance Corporation, the Pennsylvania Higher Education Assistance Agency, and the Wilmington Trust Company5 (collectively, “Ambac”)—argued, inter alia, that: (i) the Supreme Court’s decision in Seila Law required dismissal of the CFPB’s complaint because the CFPB’s ratification of the litigation against the Trusts was untimely, and (ii) the Court lacked subject matter jurisdiction over its asserted claims because the Trusts are not “covered persons” as required under the CFPA.  Another intervenor, Transworld Systems, Inc.6 (“TSI”) also argued that the CFPB’s complaint merited dismissal for lack of subject matter jurisdiction as well.

The Court’s Holding

Subject Matter Jurisdiction

The Court held that it possessed the requisite subject matter jurisdiction to decide the CFPB’s claims, and rejected the contention that a showing of whether the Trusts are “covered persons” is a jurisdictional requirement under the CFPA.  To determine whether a restriction—such as the term “covered persons”—is jurisdictional, the Court looked to “whether Congress has clearly stated that the rule is jurisdictional.”7  “[A]bsent such a clear statement,” courts “should treat the restriction as nonjurisdictional.”8

The Court then examined the CFPA, observing that there is no clear statement in the CFPA’s jurisdictional grant that “covered persons” is required.  The Court noted that only one section of the CFPA addresses the issue of subject matter jurisdiction, and that section granted jurisdiction over “an action or adjudication proceeding brought under Federal consumer law” with no mention of “covered persons” whatsoever.9

While the Court agreed that the term “covered persons” appeared multiple times throughout the CFPA, it pointed out that none of the sections where “covered persons” appeared mentioned jurisdiction.

Enforcement Authority

In light of the Supreme Court’s holding in Seila Law, the Court granted Ambac’s motion to dismiss the CFPB’s complaint due to the CFPB’s lack of enforcement authority as a result of its untimely ratification of the litigation.

As an initial matter, the Court observed that there was no question that the CFPB initiated the enforcement action against the Trusts at a time when its structure violated the constitutional separation of powers.  The task facing the Court, then, would be to determine (i) whether that constitutional defect has been cured by ratification, or (ii) whether dismissal of the suit is required.  Under the applicable Third Circuit precedent, there are three general requirements for ratification of previously-unauthorized action by an agency: (1) “the ratifier must, at the time of ratification, still have the authority to take the action to be ratified”; (2) “the ratifier must have full knowledge of the decision to be ratified”; and (3) “the ratifier must make a detached and considered affirmation of the earlier decision.”10  Here, the parties’ dispute centered around the first requirement.

Under the first requirement, the Court noted that “it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.”11  On July 9, 2020, the CFPB’s then-Director, Kathy Kraninger, had ratified the decision to initiate the CFPB’s litigation against the Trusts a few weeks after the Supreme Court’s decision in Seila Law.  The Court held that Director Kraninger’s ratification was ineffective, because (i) an enforcement action arising from alleged CFPA violations must be brought no later than three years after the date of discovery of the violation to which the action relates,12 (ii) ratification is ineffective when it takes place after the relevant statute of limitations has expired, and (iii) the CFPB clearly had discovery of the Trusts’ alleged CFPA violations more than three years before the ratification date, i.e., before July 9, 2017.  Thus, Director Kraninger’s ratification of the CFPB’s decision to file suit against the Trusts failed to cure the constitutional defects raised by Seila Law, and the CFPB’s complaint—initially filed by a CFPB director unconstitutionally insulated from removal—could not be enforced.

In so holding, the Court rejected the CFPB’s argument that the timeliness requirements for ratification were satisfied because the CFPB had brought the original suit within the applicable limitations period.  The Court likewise rejected the CFPB’s request to equitably toll the statute of limitations for ratification, because the CFPB “could not identify a single act that it took to preserve its rights in this case in anticipation of the constitutional challenges that could have reasonably ended with an unfavorable ruling from the Supreme Court.”13

Key Takeaways

The securitization industry has operated for decades on the premise that agreements governing securitization transactions provide that transaction parties are responsible for their own malfeasance and, barring special circumstances, will not be held accountable for the misconduct of other parties to the transaction.  A decision holding that passive securitization entities like the Trusts are “covered persons” under the CFPA—and thus potentially responsible for the actions of their third-party service providers—would undermine the certainty of contract terms that undergirds the success of the structured finance industry, with grave implications for the heathy functioning of the industry.  While the substantive question of whether passive securitization entities like the Trusts could indeed be “covered persons” and held accountable for the actions of their third-party service providers remains to be answered for another day, the Court did observe that it “harbor[ed] some doubt” that the plain language of the CFPA extended to passive statutory trusts,14 and expressed skepticism as to whether the CFPB could successfully replead in a manner that would successfully cure the deficiencies in its original complaint.

1   2021 WL 1169029, at *3 (D. Del. Mar. 26, 2021).

2   140 S.Ct. 2183, 2197 (June 29, 2020).  For a detailed discussion on Seila Law, please see our July 2, 2020 Clients & Friends Memo, “Seila Law LLC v. Consumer Financial Protection Bureau: Has the Supreme Court Tamed or Empowered the CFPB?”, available at https://www.cadwalader.com/resources/clients-friends-memos/seila-law-llc-v-consumer-financial-protection-bureau-has-the-supreme-court-tamed-or-empowered-the-cfpb.

3   Id. at 2201.

4   Id. at 2197.

5   Ambac Assurance Corporation provided financial guarantee insurance with respect to securities in over half of the Trusts.  The Pennsylvania Higher Education Assistance Agency is the Primary Servicer for the Trusts, while the Wilmington Trust Company is the Trusts’ Owner Trustee.

6   TSI is a sub-servicer responsible for the collection of the Trusts’ delinquent loans.

7   Nat’l Collegiate Master Student Loan Tr. at *3 (citing Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013)).

8   Id.

9   See 12 U.S.C. § 5565(a)(1).

10  Nat’l Collegiate Master Student Loan Tr. at *4 (quoting Advanced Disposal Serv. E., Inc. v. Nat’l Labor Relations Bd., 820 F.3d 592, 602 (3d Cir. 2016)).

11  Id. (quoting Advanced Disposal, 820 F.3d at 603) (emphasis in original).

12  12 U.S.C. § 5564(g)(1).

13  Nat’l Collegiate Master Student Loan Tr. at 7.

14  Id. at 3.

© Copyright 2020 Cadwalader, Wickersham & Taft LLP

ARTICLE BY Ellen Holloman,  Neil J. Weidner,  Cheryl D. Barnes
Rachel Rodman, Scott A. Cammarn and Ailsa Chau of
Cadwalader, Wickersham & Taft LLP

For more articles on the CFPB, visit the NLR Financial Institutions & Banking section.

Supreme Court “Unfriends” Ninth Circuit Decision Applying TCPA to Facebook

In a unanimous decision, the Supreme Court held that Facebook’s “login notification” text messages (sent to users when an attempt is made to access their Facebook account from an unknown device or browser) did not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act (“TCPA”).  In so holding, the Court narrowly construed the statute’s prohibition on automatic telephone dialing systems as applying only to devices that send calls and texts to randomly generated or sequential numbers.  Facebook, Inc. v. Duguid, No. 19-511, slip op. (Apr. 1, 2021).

The TCPA aims to prevent abusive telemarketing practices by restricting communications made through “automatic telephone dialing systems.”  The statute defines autodialers as equipment with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers.  Plaintiff alleged Facebook violated the TCPA’s prohibition on autodialers by sending him login notification text messages using equipment that maintained a database of stored phone numbers. Plaintiff alleged Facebook’s system sent automated text messages to the stored numbers each time the associated account was accessed by an unrecognized device or browser.  Facebook moved to dismiss, arguing it did not use an autodialer as defined by the statute because it did not text numbers that were randomly or sequentially generated.  The Ninth Circuit was unpersuaded by Facebook’s reading of the statute, holding that an autodialer need only have the capacity to “store numbers to be called” and “to dial such numbers automatically” to fall within the ambit of the TCPA.

At the heart of the dispute was a question of statutory interpretation: whether the clause “using a random or sequential number generator” (in the phrase “store or produce telephone numbers to be called, using a random or sequential number generator”) modified both “store” and “produce,” or whether it applied only to the closest verb, “produce.”  Applying the series-qualifier canon of interpretation, which instructs that a modifier at the end of a series applies to the entire series, the Court decided the “random or sequential number generator” clause modified both “store” and “produce.”  The Court noted that applying this canon also reflects the most natural reading of the sentence: in a series of nouns or verbs, a modifier at the end of the list normally applies to the entire series.  The Court gave the example of the statement “students must not complete or check any homework to be turned in for a grade, using online homework-help websites.” The Court observed it would be “strange” to read that statement as prohibiting students from completing homework altogether, with or without online support, which would be the outcome if the final modifier did not apply to all the verbs in the series.

Moreover, the Court noted that the statutory context confirmed the autodialer prohibition was intended to apply only to equipment using a random or sequential number generator.  Congress was motivated to enact the TCPA in order to prevent telemarketing robocalls from dialing emergency lines and tying up sequentially numbered lines at a single entity.  Technology like Facebook’s simply did not pose that risk.  The Court noted plaintiff’s interpretation of “autodialer” would, “capture virtually all modern cell phones . . . .  The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses.”

The Court thus held that a necessary feature of an autodialer under the TCPA is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.  This decision is expected to considerably decrease the number of class actions that have been brought under the statute.  Watch this space for further developments.

© 2020 Proskauer Rose LLP.

ARTICLE BY Lawrence I Weinstein and
Anisha Shenai-Khatkhate of Proskauer Rose LLP
For more articles on the TCPA, visit the NLR Communications, Media & Internet section

Paid Search Adverting for Law Firms: Part 6 Good2bSocial Academy

The eight modules of Good2bSocial’s Digital Academy provide legal marketers with critical components of an effective digital marketing program adapted for the unique needs of the professional services industry. Good2bSocial’s Digital Academy fills the need for legal marketers to demonstrate that they have a baseline of digital marketing concepts, and also provides law firm CMOs an objective way to assess team members’ or potential hires’ legal marketing knowledge. Last week, we covered Good2bSocial’s Digital Academy’s course on search engine optimization (SEO) strategy for law firms, providing the components of an effective SEO strategy for lawyers, stressing steady and exponential website visitor growth over time which increases both search visibility and law firm credibility.

Module 6 helps legal marketers learn effective ad bidding strategies and outlines best practices to create effective advertisements on Google Ads and other platforms. Good2bSocial’s program helps legal marketers navigate the Google Ads interface through real-life examples, providing actionable tactics to improve click-through rate, lower advertising spend and maximize performance.

Per Kevin Vermeulen Good2bSocial’s COO:

Google Ads and Bing Ads are a highly effective way to deliver quality traffic and leads to your law firm’s website.  But there needs to be thorough keyword targeting so Google displays your ads only to those searching for your legal services. Google’s global audience and the audience data they provide is unrivaled in the industry and it is critical to know how to properly set up new campaigns and how to optimize existing ad campaigns to assure that your law firm receives the maximum return on investment (ROI).

Pay Per Click Basics for Law Firms: An Overview.

As the name indicates, with pay-per-click  (PPC) advertising, your firm only pays when someone clicks on your ad. PPC ads strategies include purchasing ads on search engine results pages, social media advertising as discussed in Good2bSocial’s Academy Module 4 and purchasing ads on partnering websites.  Guidance is given on how to compete with others who want the same key words you are targeting in an auction to determine who wins the ad spot. Ad spot bidding is impacted by the key word’s relevance, the query made by the person doing the search, and your law firm’s landing page.

Get Your Law Firm’s Message at the Top and Most Viewed Parts of Search Pages.

Pay-per-click advertising on search engine results pages places your firm’s message in a prominent spot right at the top, bottom or side of the search page. PPC ads that appear at the top of the search page are more likely to be clicked on than the top-ranking search result.

Other Types of PPC Ads that Provide Value for Law Firms

Vendors like Google Display Network and Microsoft Advertising, previously known as Bing Ads, display ads on partnering websites such as the National Law Review. Google Display Network includes more than 2 million partnering websites and the ability to reach more than 90 percent of those online. The Bing Ad Network audience includes 60 million desktop searchers not reached on Google.  There are many networks out there and other niche options for law firms. For example, Quora, where people come to ask questions and to read and share answers, is particularly suited to reach customers at the point they are evaluating and researching a product or service. Good2bSocial’s Academy PPC module provides a great deal of analysis of the various pay-per-click options for law firms in addition to explaining remarketing or retargeting campaigns that show your PPC ads to those who have visited your website in the past.

Critical Points to Consider for Google Ads Campaigns Setup and Maintenance include:

How to Choose and Manage your Law Firm’s Advertising Keywords?

When using pay-per-click advertising, you have the freedom to customize your keywords, allowing for extra targeting focusing your spend on keywords that are more likely to indicate an urgent need for a lawyer. Additionally, your firm wants to make sure your keywords are unique so that you don’t end up competing with yourself.

The checklists in Good2bSocial’s Academy PPC module provide useful information on:

  • How to organize similar keywords into groups helping you keep things organized and streamlining your targeting efforts.
  • How to silo lower performing keywords into a campaign to determine if they should be dropped or can be improved.
  • How to prune underperforming keywords and how to improve the lower performing keywords through adding negative keywords to your lists.
  • How to look for new keywords and phrases.
  • How to do split testing.
  • And how to tweak landing pages and ad copy for optimal performance for high performing keywords.

What are Best Practices for Law Firm Ad Campaign Set Up and how to Avoid Costly Missteps?

Because of the high cost of PPC advertising for attorneys, law firms should research to ensure your firm chooses highly targeted keywords that will deliver an impressive ROI. Key words in the legal field are highly competitive. According to Good2BSocial, the average click costs $54.86 for keywords related to legal services and lawyers.

Good2bSocial’s Academy Provides Useful PPC Organization and Execution Advice Including:

  • How to consolidate PPC campaigns by performance.
  • Why your firm should check landing pages and URLs and making sure the landing page works as intended.
  • How to download your ads and look at them in Excel or Word to organize them and assure simple things like the spelling is correct, as misspellings can have a negative effect on click through rates (CTR).
  • How to include your keywords in your law firm’s ad copy and your landing pages’ URL and setting page paths.
  • And how to make the most of your clicks by enhancing your ads with things like ad extensions and going into detail on how Sitelinks, Review, and Call extensions can be useful for law firms.

How to Set Budgets and Choose Location and Language Targeting for your Law Firm’s Ad Campaigns.

According to Good2bSocial, certain geographic locations and more specialized key words may require higher suggested PPC bids, with some firms setting a monthly budget for PPC ads of $30,000 or more. If a law firm is going to enter into and thrive in the PPC marketplace, Good2bSocial’s checklists, real life examples and detailed explanations provide an invaluable roadmap, including:

  • How to define your CPC bids to ensure you don’t bid too high on cost per click amd how attorneys can use Google’s keyword planner to get an idea of the PPC range your firm should be aiming for.
  • How to set your PPC budget.
  • How to set location and language targets.  Not all legal consumers in the U.S. are browsing in English, so setting proper language targeting and then assuring that prospects are taken to a landing page in the language they are using to browse.
  • How to choose ad rotation and delivery method.
  • How to set “Search Network Only.”  Google will set your campaigns to search with display by default. And because display ads show up on websites other than Google search engine result pages, inadvertently including display ads outside of search results can cost your firm significantly more money.
  • How to set ad scheduling. If you want to schedule ads so they only show while your office is open and how to set target devices if you’re running a campaign specifically designed for mobile/ desktop/ or tablet only.
  • How to exclude your own IP address(es) to avoid skewing your tracking results and how to use  Google’s ad preview tool to check to see where or how your ads are showing up.
  • And how to set up conversion tracking. To monitor your ads and selected campaign attributes to assure they met your law firm’s PPC campaign goals.

Key Takeaways for Law Firms Paid Search Advertising

Per Vermeulen:

Google ads and other PPC outlets are highly effective for the law firm market at producing rapid lead generation results.  But it’s not as simple as “setting and forgetting” a law firm’s PPC campaigns.  However, while the extensive configurability of the Google platform, in particular, makes it extremely powerful, it also makes it easy to forget a step somewhere and cause problems with your firm’s campaigns.  To prevent wasting time and money, checklists, forethought, monitoring and routine recalibration checks are needed when launching and evaluating existing PPC advertising campaigns.

To Read Part 1 Good2bSocial Digital Academy for Law Firms — Inbound Marketing and Client Journey Mapping, click here.

To read Part 2 Good2bSocial Digital Academy — Content Marketing Strategy for Law Firms, click here.

To read Part 3 Good2bSocial Digital Academy — Developing a Successful Social Media Strategy for Law Firms, click here

To read Part 4 Good2bSocial Digital Academy — Paid Social Media Advertising Campaigns for Law Firms, click here

To read Part 5 Good2bSocial Digital Academy — Search Engine Optimization for Law Firms, click here.

Stay tuned for more details on the topics and key takeaways included in the other modules of the Good2bSocial Academy.

Copyright ©2020 National Law Forum, LLC
ARTICLE BY Jennifer Schaller of The National Law Review / The National Law Forum LLC
For more articles on legal marketing, visit the NLR Law Office Management section.

Taking the Jump to Virtual with Jennifer Schaller, Managing Director of The National Law Review and Megan Braverman, Principal of Berbay Marketing & Public Relations [PODCAST]

What you’ll learn in this episode:

  • The pros and cons of a virtual office.
  • The biggest challenges of working remotely.
  • Transitioning your technology to a virtual “platform.”
  • Advice for firms considering going remote.
  • What to ask prospective employees to ensure they’re a fit for remote work.

Listen to Taking the Jump to Virtual, Episode 87 of the Law Firm Marketing Catalyst podcast.

Sharon:      Welcome to the Law Firm Marketing Catalyst podcast. Today, we’re talking about a timely subject which is affecting many of us, and that is working remotely. First is Jennifer Schaller who is a co-founder and the Managing Director of The National Law Review, a publication which many of you are familiar with, and Megan Braverman, Principal of Berbay Marketing & Public Relations, and I am Sharon Berman, Managing Principal of Berbay Marketing & Public Relations. So, we’ll be here from each of our desks today talking about their experiences and what they have to learn and what we can learn from them about working remotely. Jennifer, can you tell us about your experience?

Jennifer:    Sure, absolutely. We started as a remote company just simply because we were formed by a group of attorneys at different in-house law departments, so it wasn’t like most of the co-founders were leaving their regular positions working in corporate law departments. A former law firm administrator and I and a few other young attorneys actually started the more public-facing part of The National Law Review. So, it wasn’t like we had an office and we moved to remote. We were kind of a remote group to begin with and then we hired more remote people, if that makes sense.

Sharon:      Yes, it does. O.K., so you’ve been remote from the beginning. Basically, you started—

Jennifer:    Yes.

Sharon:      O.K., that’s a great way to start in terms of not having to transfer technology and think about things. Megan, can you talk a little bit how Berbay—we have just gone totally remote, but we’ve building to it for a while, so tell us about the Berbay experience.

Megan:       So, Berbay was founded in 1995 and since that date, we’ve had a physical office in Los Angeles and our most recent office we were in for just over twenty years in West L.A. It’s a long time and as you said, we were really thinking about going virtual for some time. For those that understand the L.A. world, traffic and the commutes are painful, and we really ran the agency like just get the work done; we don’t care what time you clock in and clock out and everybody really liked that and so the past few years, we would walk into the office and it felt like a bit of a ghost town. People were coming in later and leaving earlier to help avoid the commutes and traffic, and so once COVID hit, it came at an interesting time because our lease was coming due at the end of that year and so it really just propelled us into going virtual. I think in many ways it was a blessing in disguise because it really got our—we had to get our act together, whereas if COVID and the pandemic didn’t happen, I think we would have probably taken our time and maybe reluctantly gone out the door. So, we officially went virtual on February 1, 2021.

Sharon:      That’s true and when you say it would have taken a long time, I think about it because we had talked about, “Well, let’s talk again in a few months” and then it’s like, “O.K., how do we do this?” and it probably would have been five years from now if we really hadn’t been sort of forced in—well, not forced. It’s not that we didn’t want to do it, but it’s like, “O.K., we’d better get it done.” So, for both Jennifer and Megan, what did you think before you set this up? For both of you, what do you think the biggest challenges were going to be working remotely?

Jennifer:    We’ve always had a physical office space. It’s just having space for initial training and storage of conference and office supplies in Chicago. Right now, we have people in our main office Chicago and then we grew to Denver, and we have one of our tech people in Detroit. Since it’s always been mature attorneys or an office manager who has thirty years’ experience, there wasn’t the need to have the supervision of making sure people come in on time because in running a news service, we know if you’re producing work or not. It’s really more for initial training or for the purposes of picking stuff up. So really more of the remote issues that we’ve encountered along the way have been dealing with operating in different states and some of the laws relating to that.

Sharon:      Yeah, you just have to think about the fact that different states have different compliance standards to think about. Did you think when you brought on people in different locations like Seattle or Detroit, did you think, “Oh my god, how am I going to keep everybody together?” or what did you think the challenges might be?

Jennifer:    It is really, really organic. The Detroit person is one of our more technical guys and he has a tight relationship with my spouse, who actually handles the real high-level oversight of the more technical end of the website because we’re an extremely high-volume website and they’re kind of buddies. So, they handle their thing and the Denver part of it grew very organically by adding an additional tech person in Denver. We had a person who had been working with us for a while who was relocating out there for her husband’s position and so we agreed to keep her position and we’ve just found a whole little kind of hub of really good talent out there. We’re actually now starting to actively hire more towards the East Coast and bring in people in specific time zones where we might not have anybody, but the other part of it was just based on people—we try to accommodate the needs of our employees and to try to make it a win-win with the company’s goals.

Sharon:      And Megan, were there challenges that you expected or that you didn’t think about that popped up?

Megan:       Most of the challenges that we faced were expected. I mean the typical ones like—well, change is really hard, especially from a technology standpoint, so I think there are always technology issues along the way. I expected that. I knew people were going to have trouble adapting to the new system, especially when you’re used to something for so many years. I think there will be challenges to come because we’re still in the midst of a pandemic. In California, we’re pretty locked down here. I think there will be different kinds of challenges when everybody can start seeing each other again, like logistical I think is a little bit hard right now. Before, we would all be at the office and we’d jump in the car together and go see a client and I think that will be different. I think what Jennifer said—it’s like Jennifer has an office where you can kind of do some physical pickup of things. That’s all going to be remote for us and we’re going to be doing drop-offs of computers when we have a new employee and if someone leaves, picking them up and how that’s all run and handled. Those things I think are challenging. You don’t really think about all those little things as you move virtual, but those were all challenges and things you have to figure out a plan for.

I think the one challenge that—not only is it happening now, but I think it will get harder as we continue to be virtual and live in this virtual world longer, is we’re in the creative space and so there is a lot of collaboration and right now every collaboration is intentional. So before in the office, you would just say, “Hey, Sharon, can you swing over here and take a look at this? Look what do you think?” And we would sit there and have it out or I’m sure it happens the same with you, Jennifer. We sit down randomly and have brainstorm sessions and strategize. Now all of that has to be intentional. It’s more like, “Sharon, do you have twenty minutes tomorrow at 10:00 a.m. to go through this” and so it’s less of a spur of the moment and I think that that will—it can impede collaboration.

I think there are ways to combat and ensure that we’re doing the same things as we once did physically. For example, we’ve created something called Co-llab which is really just an intentional weekly meeting where we can all get together and bring things to the table. There’s no agenda. It’s just like, “Here’s my challenge” or “Hey, can you look at this ad? What do you think?” or “What about this copy” or “I’m struggling with this pitch” and we can all just bring things to the table. So, it has to be much more planful and intentional now.

Sharon:      In technology—because technology was the most daunting thing—I mean there are a lot of like you say, bugs that have to be worked out, but to me, from my perspective, it was thinking about how do we move the technology, are we in the cloud or is it a server or whatever and then also, we use Microsoft Teams in terms of collaboration. Jennifer, you are on Slack?

Jennifer:    Yeah, the technical end of it has been the easy part for us because we’re a tech-based company given the volume of publishing that we do. We publish anywhere from 65 to 85 articles a day, and that’s why we also have people in different time zones. It’s sort of challenging when we’re hiring and we’re like, “We’re publishing anywhere from six in the morning to seven at night” and interviewees are like, “I’m not working those days.” We split that up into different work teams and that concept gets kind of messy in a lot of the minds of people we interview who are working nine to five, but ultimately our clients win if we get the best results for them which means a quick turnaround on their publishing and we win because we make half of our revenue from advertising, so we have every incentive to get their content out there quickly and to do the best with it that we can. So, since we have people working in different shifts, in different time zones, all to produce news content, they have developed a great system on Slack where they talk throughout the day, figure out who’s doing what, who’s doing the social media, who’s doing the formatting of the content and the SEO work and who’s publishing it.

On the front end, we do scheduling as far as a month out on our work calendar. We have a system where; we ask folks to put their preferred hours to help fill publishing time slots during the day so we can cover the publishing cycle. Then we also have staff available on the weekends for publishing and customer service—so it’s like our road map for things. I wish I could have found something to read on how to do this, but we just kind of felt our way through it with both the scheduling of people and the timekeeping and then the daily conversations on Slack kind of evolved organically.

We have subcommittees for social media, advertising and SEO and a couple of other groups for projects and then we have regular team meetings. We usually will have a written agenda of things for our meetings that we want to go over, not that we can’t talk about different things, but in order to have a roadmap of who’s going to be covering what and what the deliverables are from the last meeting, so everybody knows they’re going to be held accountable and to have their stuff ready. So, we’ve just had to develop a lot of formalized systems but have done it through technology.

Sharon:      It’s interesting how—I’m sure you’ve hit roadblocks along the way and said, “O.K., we tried that. That wasn’t really the way to go.” You also have been able to do this over time, whereas a lot of firms are scrambling right now. Yes, there’s an aspect of scrambling, but we had a foundation of people working remotely. It wasn’t like, “Oh my gosh, what are we going to do?” It’s nice to have that luxury of trial and error and it sounds like it’s really served you well in terms of “O.K., we tried this. This is the way we want to go. Let’s go around this way.”

Megan, for firms that are considering or who are in the midst of going remotely or debating whether to revert back when get to the new normal or to go totally remote, what do you think the firm should be thinking about?

Megan:       Well, I think it’s a big decision for a lot of firms to decide what to do when things start to get back to normal. I’ve talked to so many people who have said that they love the virtual world, and their employees and the staff love the virtual world. It gives them a lot of flexibility; a better workplace balance and they can’t imagine going back. I’ve spoken to a lot of employees who have said they’re not going back. So, they’re really hoping that their employer’s going to be amenable to their request because they can’t imagine going back into the office. I’ve talked to a lot of folks that feel differently. They really believe in having that physical presence and having that office and having people there every day.

I do think that this pandemic has changed the mindset on virtual. I think there are a lot of sort of nonbelievers out there that turn believers because in their minds it was impossible. I mean there was no way that they could operate virtually, but when you’re forced to operate virtually, you realize that you can and actually there are a lot of benefits that come with it. I do think there are more believers out there. I think that that will change permanently. I think if you’re considering embarking on going virtual, even partially virtual, maybe you decide to have your employees come in twice a week or whatever it might be or downsize your offices. You just kind of share space differently. I think you really have to come up with a plan of action. To me that was so crucial when we made the decision, we were going to officially go virtual.

I did a ton of research and thought about—I mean technology is one small piece. Privacy is a big piece. For example, there are some employees who are sharing their living with a roommate or a partner and you have to think about privacy issues beyond just secure technology, but what if someone’s overhearing conversations of confidential information, but they’re living in 600 square feet, what do you do? So, there’s a lot under each umbrella. I think that plan of action includes everything from how meetings are going to work, as Jennifer went into detail about how they handle their meetings, what to do when like for example the internet isn’t working very well at home. That happens all the time. It’s amazing. It’s like no matter how much you call your internet provider, nothing happens. So, what do you do when something is the matter with your internet?

I think of all these things—first there’s a lot online. There are a lot of people who’ve done this, so talk to people who’ve done this; they can tell you their mistakes or the things that they overlooked, but a simplified plan of action of all the things we needed to be thinking about really kept us on track and made sure that we really—and we did things in phases. I think that was a big thing for us. Don’t try to tackle everything at once. We had almost a year to move out of our office. We took that time, and we did little by little by little. That was so helpful. If you try to move out of an office in a month, you are going to be scrambling.

Sharon:      I think you made some very good points about the fact that if you do it in phases. First of all, I do have to say that you were the main planner and driver of going virtual and I give you a lot of credit because it really went—it happened, and it didn’t happen with people tearing their hair out. So, I think that’s—

Megan:       Just me tearing my hair out.

Jennifer:    Your hair still looks very good.

Megan:       Thank you, thank you.

Sharon:      Jennifer, you must have seen over time a real evolution in how people view—ten years ago, you just didn’t say if you weren’t going to the office. You must have seen a real change.

Jennifer:    Well, we have one advantage. We’re the kind of business that nobody visits us, so it’s not like we’re going to have client visits. That was one thing that kind of made things a little bit easier with the whole virtual situation, but yes, perceptions have changed drastically over what it means to work from home and we work very purposely when we interview to ferret out people’s perception of what it means to work from home because being in the publishing business, there’s a lot of freelancers and there are a lot of folks who are like, “I’m just going to work when I want to work” and we try to explain the rigid schedule of news publishing, if they haven’t worked for a newspaper or a daily publication, how—no,  it’s got to be between certain hours and that there’s structure in order to produce the product that we do for our clients. But yeah, I mean initially ten years ago, there was a perception either that it was kind of two extremes, either you were like some lady who’s doing quilting in her basement or you’re like Bill Gates and you can work from the south of France and there were very few in-the-middle kinds of situations.

So yeah, it took a little bit to educate people whom we were bringing onboard on what the expectations were. I mean we’ve learned an amazing amount over the years—it’s a huge red flag if somebody says in an interview like, “How do you know if I’m working” and it’s like, “Oooh.” So, we just have figured out mostly through being exceedingly descriptive when we post jobs and then continuing through the interview process of explaining what our daily routines are, and to explain that there is some expectation of an in-person component for both work and training.

For training, we train normally pre-COVID three weeks one-on-one to get folks into the publishing process because it is pretty difficult to find people who have SEO experience and legal experience and publishing experience, we’ve yet to find the trifecta of somebody who has all those things. So, we’ve found it most effective when we train to sit down with people so we can see if, versus virtual, if their eyes are glazing over because we’re going over something that’s routine for them or if it’s a new task that they have no clue what’s going on, so we can better tailor our training and also develop rapport because we know eventually, we will be working remotely.

We have multiple people interview everybody when we hire, which some interviewees are confused by. Especially in the publishing process, it’s an all-day-long cycle of either different team members coming on and tagging in or working jointly in different parts of the publishing process. We really want a cohesive team, and we want anybody who’s joining us to know what they’re getting into and to have as many different people to talk to, to get a flavor for that. And by the same token, anybody we bring onboard, we want the full buy-in of our staff. So, the net of it is, in person when we can, monthly in-person meetings, like we do an LMA meeting and usually work together as a group in the afternoon pre-COVID. -. In-person training and then we do lots of conferences, and we try to mix up the people who are going to different events and can get to know their coworkers and their clients better.

Sharon:      That’s really nice. You have the independence and then really work to build the camaraderie among different people. Megan, what do you think? What are some of the questions or what are you looking for when you’re asking somebody about coming onboard to Berbay?

Megan:       So, we’ve only hired one staff member virtually and onboarded and trained this person virtually, so we’re fairly new to doing this and I think a lot of the questions and sort of what we’re looking for in a candidate is very similar to before. There are of course questions related to their space. Do they have a designated office space or not, and have they had experience working virtually? Would this be their first experience? How do they manage their time productivity?

It’s interesting. I found that we are working more productively, longer hours virtually than when we were in the office and there are a couple of reasons for this. I think one reason is that we’re all locked down, so there’s nothing else to do, so we just fill our time with things that we need to get done. I think that because you have a lot more flexibility, that you kind of work different hours. Sometimes you’ll work a big chunk in the morning and then you’ll take an hour or so break, eating lunch, maybe going outside and then you’re back to working. The fact that you’re able to break whenever you want during your day at the convenience of your schedule I think works really well versus when you are in the office, you are in the office. Even if there was a slow period, you were in the office.

You just kind of did what you needed to do, but I do think when you’re finding candidates, I mean you really need someone that is used to that autonomy and if they’re used to working side by side with people and they’ve never had that remote autonomous position, I think that’s going to be challenging. With that said, if they’re a very disciplined person and motivated and proactive, all the qualities that probably any company looks for, I think that a lot of people can adjust and will find—if you probably talked to anyone at Berbay including myself, we all agree that it’s just been so amazing working virtually. I mean there’s a lot less planning you have to do and that frees up your mind for other things, like for example a lot of us who go to the office, we think about meal planning: what should I make the night before so I can bring lunch in the next day or what time do I need to leave so I can get into the office on time for whatever call I have? You have to think through all those things. You have to plan them. Even your outfit, when you’re at your office, some people love to do the day before if you have a meeting. So, there are a lot of things you have to think through. I think the fact that you have more brain space now and not have to think about that makes a big difference. I know I sort of got sidetracked with the questions, but I think those are all the things that you can kind of probe a candidate for in terms of discipline, ability to be autonomous, their experience with remote work, etc.

Sharon:      No, I mean there is more brain space because you don’t have to figure out what time do I go to the gym, should I make lunch, should I pack dinner for the night before for lunch. I think the main difference—what Berbay and Jennifer are saying—and I thought that was an interesting point—is somebody in what we do, can be a freelancer in a sense. I mean they can be part of our team, but be a freelancer, where, Jennifer, you need somebody who is going to be available at certain times; it doesn’t matter if there in an office or not; they have to be available to take an assignment at a certain time and get it done at a certain time. So, that’s interesting because I think candidates who haven’t been exposed to what Jennifer is saying would have a hard time sort of wrapping their heads around the fact, “Well, I’m not a freelancer, but I’m not in an office.”

Jennifer:    Yes, it’s been challenging. We really, really, really, really try to front everything in the interview process. That makes it sound like there’s something sinister going on here. We have exceedingly talented people. Most of them have advanced degrees and have years and years of either publishing or SEO experience or editorial experience and some legal, and so to talk to interviewees and say, “Well, we kind of work in an assembly-line environment” for lack of a better way to put it because we have somebody who checks what’s coming in and then verifies that we can publish it, formats it, does the SEO work, has an editor look at it and makes it go live, does the social, does homepage placement. We kind of repeat that process for 60 to 85 articles throughout the day.

As things come in, editorial questions come in from our clients who want changes to things or just have general questions and to understand the interdependence of how to do that for 12 hours a day with different people working, it’s easy to explain it to somebody who’s worked in a news environment, but even with that, that tended to be more print, intended to be super deadline specific, we tend to publish live and cut things off at a certain time in the day. So, there’s a lot of judgment calls at the end of the day if we have things coming in still if they’re breaking news, if we publish them or wait until the next day.

So, that whole process I think is somewhat unique between having our own writers’ writing, original contributed content and then syndicating content from law firms and mixing it up into a newsfeed. That’s not super-common out there. It’s not like we can recruit people who’ve been doing the same thing at other places. There’s a learning curve and a trust curve.

Sharon:      No, I can understand that. That would be a difficult thing to find. To me, I’m still struck by having to explain these to them overnight. It’s not freelance, but you’re working virtually basically. So, Megan and Jennifer—Megan, let me start with you.  Based on your experience, what would you tell other firms who are considering going totally virtual or what would you say the benefits are? What would you do differently? What would your advice be to them?

Megan:       My advice to those that are going to go virtual, first is give yourself—however much time you think it’s going to take to really go virtual, I would double it. I think the fact that we had essentially a year to do it was incredibly beneficial and mind you, I took that year very seriously. It’s not like I started four months out. I mean I really started at the top of the year and just started chipping away at the paint because that was the only thing that my brain could actually handle getting out of this physical office and transferring technology and all of the things that had to come with it. So, I would say give yourself ample time.

I think that there are an enormous of benefits from working virtually, challenges too, but I think that there is a new meaning to the work-life balance. I think that whatever the new normal looks like, I believe that people are going to be permanently changed. Maybe everybody can’t wait to get out of their house and I’m sure a lot of people can’t wait, but at the same time, I think once we’re able to get out, I think we’re going to love the fact that we had that time at home and with our family and the quality time and we’re going to need that, and I think the virtual workplace offers that.

I would say the other piece of advice too is have someone to support you. Don’t think that you have to do this all your own. This was very a team approach of Berbay. Everybody had a role in going virtual. Every single staff member had a role in helping get to the virtual space. So, someone has to lead the charge of course, but just rely on your staff as much as possible and everything is overwhelming with change. I think just taking it day by day—I know that that’s such a simple piece of advice, but it’s really true. I think I had a realization moment where I knew that I couldn’t think too far ahead. You just think about the day, think about the week and what you’re going to achieve and over time, you’ll see how much progress you’ve made.

Sharon:      Megan, we had that year, and you had that year, but that still sounds like if you could have had more time, you would have. At the same time, if this hadn’t happened and we said, “O.K., we’re going to go virtual,” I think that five years down the line we’d still be converting. So, what do you think? Do you have an idea of what—is it a couple of years you think? What would you say?

Megan:       It’s a good question. I think it depends on the size of your company. I think that plays a big role. I mean we had one office. We were a small team. We can work leanly. There’s not a whole lot of bureaucracy, so decisions were made very quickly, very easily. So, I think depending on the size of the company, that can change. I think if you’re working with multiple offices and maybe each office is doing something different, that can be a challenge. I do think creating some kind of timeline, even if it’s over a long period of time, that’s O.K. You just have to create a timeline and really stick to it because we were forced into that timeline, but I think that it was probably one of the more beneficial motivators we had in place. It was like we had that—we couldn’t change the timeline. It wasn’t like we could say, “Well, our lease was up. We weren’t going to renew, so we had to get out of the office by February 1.” I think that’s why the timeline is so crucial, but again, I think you’ve got to rely on your staff and it’s so important. You can’t do this on your own. I talked to probably ten other employers who went virtual. I just picked their brains for 20, 30 minutes and just got the rundown of everything I needed to know, and you just get it done.

Sharon:      And you did and once again, I give you a lot of credit. Jennifer, in wrapping up, what would you like people to know? What do you think they should know about working remotely or going remote or words of wisdom?

Jennifer:    Well first of all, what a wonderful way you guys rolled it out, you had a hard deadline, but a lot of runway at the same time in order to make it happen and it’s fantastic that you pulled together as a group. One thing I can say, we were exceedingly blessed to have an extremely strong office administrator when we first started. Not only was she very experienced in the law firm world, but she was technology savvy, and you don’t always find somebody with a huge amount of experience in tech and office systems. So, we had her—thank you, Shirley—early on and actually now she works for a client of ours and came from a client of ours before.

So, I would say if you can, start out with strong parameters like having filing protocols and having systems for reporting time and requesting time off, formal systems for payroll. Just because you’re working remotely or have a small team, that stuff doesn’t go away. I think the stronger systems that you have in place like they do at larger companies makes it simpler to make that transition and then just letting team members know not only do they have input into how to change them or tweak them, but that we actually do take our team’s input and implement the changes.

Sharon:      And I think that’s a good point because I think that goes a long way in terms of pulling people together and making them feel like they’re part of something, at least knowing what the protocols are. It’s not like, “Well, I can do whatever I want. I’m floating in space. I can do whatever I want.”

Jennifer and Megan, thank you so much for talking today. I’m sure that those listening gleaned a lot of information and we gave everybody a lot to think about and I hope we didn’t scare anybody off. Thank you once again for being here. Jennifer Schaller who is the Managing Director of The National Law Review and Megan Braverman who is Principal of Berbay Marketing & Public Relations. Thank you both.

Jennifer:    Thank you.

Megan:       Thank you.

Sharon:      We hope you apply what you learned here today to propel your firm forward. If you have questions or want even more resources, go to Berbay.com and as always, thank you for listening.

© 2020 Berbay Marketing & Public Relations

ARTICLE BY Sharon Berman and Megan Braverman of Berbay Marketing & Public Relations Firm
For more articles on remote work, visit the NLR Labor & Employment section.

Time Is Money: A Quick Wage-Hour Tip on … Tracking Employee Working Time

I had planned to focus this month’s installment of “Time Is Money” on the practice of rounding timeclock entries, addressing the history behind the practice as well as factors that make rounding today a riskier proposition than it used to be.  Then, while reviewing our previous writings on the subject, I came across my colleague Mike Kun’s treatment of the topic in our July 2019 installment, where he already said pretty much everything I had to say.

Back at the drawing board, it occurred to me that rounding is part of a broader challenge that businesses face: how best to record employee working time.  Nearly every large case we handle involving non-exempt employees includes allegations that the employer hasn’t compensated workers fully for their time. Sometimes the claim is unfair rounding, other times exclusion of potentially compensable pre-shift or post-shift activity, and recently we see more employers concerned about recordkeeping in the context of remote work.

These concerns all have a common thread:  there is no risk-free way to record employee working time.  Every timekeeping system yet invented has pros and cons, with varying opportunities for cost savings or budget-breaking overruns, employee evasion, manipulation by wayward supervisors and managers, and exposure to claims in litigation that are increasingly likely to wind up as certified class or collective actions.

As with many aspects of employment law compliance, options that tend to reduce the risk of litigation also tend to cost more.  In timekeeping, that means potentially overpaying employees for their work.  And while overpaying employees can be expensive, paying lawyers—including plaintiffs’ lawyers—to address these issues in litigation can often be even more expensive.

So what’s a well-meaning, compliance-minded employer to do? Are the only choices overpaying your employees, which in many industries can put a company out of business rather quickly, or blindly trusting your employees and your supervisory staff to handle timekeeping properly, which can put an employer on a fast track to litigation?

While there are no perfect solutions, some practices have emerged that many employers see as striking an appropriate balance between cost and litigation risk:

  1. Consider eliminating rounding.

Our 2019 post covered this topic well, and we won’t restate it all here. But increasingly, employers are moving away from rounding in order to save themselves the inconvenience and expense of litigation it tends to invite.

  1. Give more thought to the number and placement of timeclocks.

Many employers with physically large workspaces, such as factories, casinos, and hotels, have employees clock in at a central location before walking several minutes to their work area.  These employees then finish their shifts and walk several minutes to clock out for the day. Several minutes a day, every day, for hundreds or thousands of workers quickly adds up to a lot of money in wages for unproductive and potentially noncompensable time.

What if the employees had the ability to clock in much closer to their work area?  Depending on the employer’s timekeeping system, this may require purchasing more time clocks, but the potential savings from not having to pay for unproductive walking time at the start and end of shifts could quickly pay for the additional time clocks.  If employees engage in compensable donning or doffing away from their work area, placing time clocks by their changing areas serve the same goal: paying for all time the law regards as compensable, while not paying for lengthy pre-shift or post-shift walking to and from the time clock.

In work environments like call centers, where the employees are normally unable to perform compensable work away from their workstation and issues arise regarding time spent booting up, logging in, and loading applications, many employers have moved toward having employees clock in and out as they enter or leave the call center floor.  That approach may result in paying employees for an extra two or three minutes on either end of the shift, but it spares employers the common allegation in lawsuits that it took employees five, ten, or even more minutes to get their computer ready at the start of the shift or to close out at the end of the day.

There is no single correct answer that fits all workplaces, but by giving some thought to how many time clocks an employer has and where to place them, there may be opportunities to make time records more accurately reflect the compensable activity the workers perform.

  1. Provide employees an avenue for reporting time worked outside of the normal routine.

Things happen that render employee time records inaccurate or incomplete. Employees forget to clock in or out. Situations arise after hours. Employees may interact with their supervisors before or after shifts. The key to achieving compliance is to be sure that the employees have—and know about—a way to correct errors or to record working time not already reflected in the timekeeping system. These corrections may involve the supervisor in the first instance, or the employee may have the ability to make changes or to include new or additional time entries directly. If your timekeeping system recognizes only those activities that occur between in-punches and out-punches, you may be failing to capture the full scope of your employees’ compensable working time.

  1. Consider requiring creation of an auditable record whenever a supervisor or manager changes an employee’s time entry.

Time shaving by supervisors and managers continues to be a common claim in litigation, often tied to the assertion that these individuals alter their workers’ time records in order to reduce or to eliminate overtime.  One important way to prevent time shaving and reduce the likelihood of such claims is to require the timekeeping system to record the identity of any person who changes a time record, along with a short statement of the reason for each change. In addition, periodic auditing of changes to time records can help identify patterns of abnormal adjustments by certain supervisors or managers.

Devoting some time and attention to these timekeeping issues can go a long way toward reducing the likelihood that you will face litigation down the road.  Once you establish practices that work best for your business, you will want to follow up with periodic training so that your non-exempt employees and their supervisors and managers clearly understand your policies and expectations.  Your compliance will very likely improve, and you will probably save money in the long run.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Paul DeCamp of Epstein Becker & Green, P.C.
For more articles on tracking employee time, visit the NLR Labor & Employment section.

Best Practices for Clearances and Opinions

Last week, Mintz Member Lisa Adams moderated a panel discussion between in-house attorneys that covered best practices for conducting patent clearances and obtaining non-infringement and invalidity opinions. The panel discussion, which was hosted by the Boston Patent Law Association, focused on key practical considerations that ensure product clearances and opinions are used as effective tools in a comprehensive intellectual property protection strategy. Here are some key takeaways from the panel’s conversation:

Start the clearance analysis for a product well in advance of the product launch, and update it throughout the lifecycle of the product   

It can be too advantageous to start the process of clearing a product for market as far in advance of the product’s marketplace launch as possible. Taking a proactive approach to product clearance can help avoid the possibility of having to perform a costly product redesign just prior to the product’s launch. An efficient approach to clearing a product may be to perform an initial landscape search to understand the scope of the art in a product’s technical area when the development of the product is in its earliest stages, to monitor the progress of product development and update the search accordingly as additional product details are learned/finalized, and to focus the clearance effort with freedom-to-operate analyses as the product moves closer to launch. The analysis does not end with product launch, but instead updated searching should be performed throughout the lifecycle of the product.

Consider keeping clearance/freedom-to-operate work product and analysis with outside counsel

A paper trail of conversations and assessments on product clearances, landscapes, and freedom-to-operate analyses between employees could become discoverable in litigation, which could be detrimental to your position in the litigation. The likelihood of the content of the analysis becoming inadvertently discoverable can be minimized by outsourcing the clearance work to outside counsel and having outside counsel maintain and manage the analysis.

Consider varying the approach to clearances based on the circumstances and the value/risk to the business

The decision of whether to commission a detailed and highly documented freedom-to-operate analysis should be based on the consideration of a variety of factors, such as the level of importance of the product, where the product is in the life cycle and the risks in play for the business. While one may consider involving outside counsel if the analysis of whether a product is cleared for launch is complex, it may not be necessary for simpler analyses with fewer issues.  In-house counsel can prepare opinions, but it is recommended to have a second in-house attorney review the opinion.

Pay attention to the timing of the opinion you obtain          

The timing for delivery of an opinion can be crucial to its effectiveness. For example, if the business is on the eve of product launch or is anticipating litigation, it ideally should be in a position in which outside counsel has studied the relevant patents in detail and provided an opinion well in advance before the launch of a product. It is important that an opinion be delivered such that there is an opportunity to convey that analysis to the decision-makers in the business so that the business has a meaningful opportunity to pull a product from the market based on the opinion if that is the decision that needs to be made. In circumstances where a written opinion cannot be completed in a timely manner, an oral opinion can be rendered in advance of the product launch and subsequently documented in a written opinion after the product launch. Obtaining an opinion on a product or patent as far in advance as practical increases the effectiveness of the opinion (by improving one’s ability to rely on it in any ensuing litigation) and shows objective intent to avoid willful infringement (and treble damages).

Make sure the business is trained to communicate with discovery in mind so they don’t inadvertently undermine clearance/opinion efforts

Communication hygiene is critical. The business should be trained to understand that they should not discuss whether a product potentially infringes a patent or whether it is invalid. To the extent those conversations occur within the business, it is best to avoid having them in writing. In short, if there is a question about a competing product or a patent, it can be helpful to pick up the phone and consult with in-house counsel rather than putting a question in email form to in-house counsel.

Consider splitting up non-infringement and invalidity opinions

To maximize options in litigation, it can be beneficial to split non-infringement and invalidity opinions into separate documents/efforts. Doing so can provide litigation counsel with the ability to rely on one opinion but not necessarily waive privilege for communications associated with the other opinion.

Consider addressing reasonable alternative claim constructions

An opinion of counsel must be competent. When deciding which arguments to include in an opinion, it can be beneficial to address alternative claim constructions. While conclusions reached by counsel do not need to be correct in order to insulate an accused infringer from a finding of willful infringement, it may be more challenging to demonstrate that an opinion is reasonable if it is based on a claim construction that ultimately fails during litigation. While alternative claim constructions are acceptable, unreasonable arguments should not be included in an opinion as they can weaken the opinion by undermining the objective assessment of the reasonableness of the business’s reliance on the opinion.

Carefully consider to whom the opinion should be addressed and how the opinion should be delivered to the business

Ideally, an opinion should be addressed to the in-house patent counsel who requested the opinion and delivered to a key decision maker in the business by the in-house patent counsel. It can be beneficial to document all steps in the delivery and to obtain a form of written record documenting that the decision maker has read and understood the opinion. Such documentation can potentially serve as supporting evidence in any ensuing litigation to support the position that the business did not willfully infringe a patent-in-suit.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Lisa Adams and  Alexander G. Roan of
Mintz
For more articles on patents, visit the NLR Intellectual Property section.

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