Legal Industry Updates: Law Firm Recognition, Attorney Hires and Exceptional Law Firm Pro Bono Work

Let’s dive into the latest coverage by the National Law Review on legal news, law firm updates, and noteworthy pro-bono and civic engagement by attorneys.

Law Firm Recognition & Honors

The National Law Journal recognized Robinson+Cole Managing Partner Rhonda J. Tobin on its list of 2021 Insurance Law Trailblazers. She was recognized for her 30 years of experience representing insurance companies in arbitration, litigation and mediation involving reinsurance and insurance coverage. Tobin has represented insurers in cases involving the September 11 attacks, the coronavirus pandemic and the #MeToo movement.

Tobin was the first woman to lead Robinson+Cole as a managing partner, and served on the firm’s Managing Committee for the last 12 years, and has been a chair of the firm’s Litigation Section for 13 years.

Kirkland & Ellis received eight awards at the 2020 Private Equity International (PEI) Awards. The annual PEI awards “showcase the firms that have, in the eyes of their peers, set the benchmark during the year.” The awards are chosen by readers of Private Equity International and subscribers of PrivateEquityOnline.com. The awards Kirkland & Ellis won include: Law Firm of the Year in Asia (Transactions), Law Firm of the Year in North America (Fund Formation), Law Firm of the Year in North America (Transactions), Law Firm of the Year in EMEA (Europe, Middle East and Africa) (Fund Formation), Law Firm of the Year in EMEA (Transactions), Secondaries Law Firm of the Year in Europe, Secondaries Law Firm of the Year in Americas and Secondaries Law Firm of the Year in Asia.

Blake, Cassels & Graydon LLP is one of Canada’s Best Diversity Employers 2021, receiving this exceptional recognition for the 11th time, which is more than any law firm in Canada. Blakes’ diversity initiatives include Diversi-Tea, a program that pairs diverse junior associates with mentors at the senior associate and partner levels, and workplace initiatives such as Black@Blakes, Women@Blakes and Pride@Blakes.

Blakes is also a part of the 30% Club, which strives to increase the number of women on boards of directors to 30 percent by 2022. In a statement, Blakes said, “We proudly stand with other Canadian business leaders as members of the BlackNorth Initiative (BNI) and their Law Firm Pledge, Law Firm Antiracism Alliance network, and Black Future Lawyers, among others, to support work focused on addressing systemic racism and improve the recruitment and retention of diverse legal professionals.”

Lawyer Career Changes

Capital markets lawyer Johnny Skumpija has joined Sidley Austin’s New York office as a partner in its Capital Markets practice.

“Johnny is a tremendously talented and versatile lawyer who has advised and worked with some of the biggest names on Wall Street and across corporate America,” said Ed Petrosky, global chair of Sidley’s Capital Markets practice and a member of the firm’s Executive Committee. “His well-rounded experience and skill set are impressive and will enhance our Capital Markets practice’s ability to serve clients and navigate complex transactions.”

Skumpija’s practice focuses on capital markets matters, financial institutions, public offerings and other equity financings. He also advises companies on disclosure, governance and general corporate matters.

Lindsay Clark recently joined Fasken Martineau DuMoulin LLP as Counsel in the firm’s Technology, Media and Telecommunications group (TMT) in British Columbia, Canada. In her practice, Clark advises companies on operational and corporate governance matters, commercial, licensing and IT agreements, and corporate structuring and planning.  Additionally, she assists clients prepare for and complete significant transactions, including venture financing and exit transactions.

“We welcome Lindsay to Fasken and to our TMT group, said William Westeringh, QC, Managing Partner, BC Region. “Lindsay’s broad experience advising companies and their founders and investors will help serve our clients in the ever-changing technology sector.”

Sarah Dunn Davis and Aileen Kim recently joined Ropes & Gray’s mergers & acquisitions practice as counsel in Boston and New York, respectively.

Davis previously worked as a vice president and senior counsel for a publicly traded global asset management company, focusing on cross-border investments and other strategic transactions. She also worked at Ropes & Grey as an associate from 2014 to 2015.

Kim’s practice focuses on representing private companies in divestitures, joint ventures, mergers and acquisitions and advising on corporate governance, disclosure issues and compliance matters. She represented Eli Lilly in its approximately $8 billion acquisition of Loxo Oncology, Inc. and its $1.1 billion acquisition of Dermira, Inc.

“Both Sarah and Aileen are a great fit for the type of complex work Ropes & Gray is known for handling,” said Chris Comeau, co-chair of the firm’s M&A practice. “Aileen’s experience guiding biopharmaceutical transactions strengthens our life sciences team, and Sarah’s return to the firm is welcome because she brings the combination of law firm and in-house perspectives to deals in a broad range of industries, including asset management, technology and life sciences.”

Law Firm Pro-Bono Efforts

A team of attorneys from Proskauer Rose including associates Tony Martinez, Robert Spiro, and Jordan Glassberg along with pro bono counsel Erin Meyer and paralegals Nina Leeds and Anna Brodskaya worked with a pro bono client of the firm, helping him apply for asylum through the USCIS (U.S. Citizenship and Immigration Services). Proskauer’s client is a gay man, who had suffered horrible violence that was not investigated or prosecuted in his home country, and who had fled to the United States as a result.

The asylum process in the United States is a difficult and time-consuming process, and the Proskauer team helped by drafting an affidavit describing their client’s past persecution, collected evidence in support of his assertions, and assisting him in asylum interview preparation.  The client was granted asylum by USCIS in February of 2021, and can now live safely in the United States.

Glassberg, one of Proskauer’s attorneys who worked on the case, said, “Being able to advocate for someone who was gravely mistreated through no fault of his own, and knowing that he can now live here in safety, is an experience that I am humbled and grateful to have been a part of.”

Lauren Connell, pro bono counsel with Akin Gump, received the Brooklyn Volunteer Lawyer’s Project (VLP)’s Pro Bono Leadership award at a virtual ceremony on March 4.  The award is in recognition of her work launching VLP’s Frontline worker initiative during the COVID-19 pandemic.  The initiative focused on honoring the work and sacrifice of 1199SEIU United Healthcare Workers East members by offering assistance in the preparation of important life planning documents, such as wills, health care proxies, powers of attorney and other important legal documents.

Connell says she was excited to partner with VLP on the project.  Per Connell: “We are happy to support a group that has been such a key part of the pandemic response and hope that our work will provide some measure of comfort and security in these uncertain times.”

Connell has worked on a variety of pro-bono matters for Akin Gump; including work representing refugees seeking asylum detained in facilities in Texas, working with separated families, and securing asylum for individuals in a variety of circumstances including refugees who had worked with U.S. and NATO forces in Afghanistan.

The Brooklyn VLP project works to involve attorneys and law firms in pro bono projects, with the overarching goal of making legal services available to low-income residents of Brooklyn.

Over 1,000 attorneys associated with Lawyers for Good Government (L4GG), a network of lawyers committed to human rights and equal justice sent a letter to the U.S. Senate in support of the confirmation of Vanita Gupta for Associate Attorney General, and Kristen Clarke for Assistant Attorney General for Civil Rights.  The attorneys who signed the letter support Vanita Gupta and Kristen Clarke’s record on Civil Rights, stated:, “Trump and his administration did damage to our institutions, and to repair that damage, we need people who have devoted their lives to fighting against injustice.”

Gupta has faced criticism from Senate Republicans for the language and rhetoric in her tweets, and for her positions surrounding law enforcement and drug decriminalization. The Judicial Crisis Network has launched a million dollar offensive to fight Gupta’s nomination, but if she is confirmed, she will be the first woman of color to be the associate attorney general.

Clarke is nominated for the Assistant Attorney General for Civil Rights, and is currently the president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, which promotes fair housing and community development, economic justice, voting rights and more.

We’ll be back in two weeks with more legal news and updates.  Watch this space.

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Eilene Spear and Rachel Popa of
The National Law Review / The National Law Forum LLC
For more articles on the legal industry, visit the NLR Labor & Employment section.

TIK TOK TIK TOK: Time Running Out For Preliminary Court Approval of Multimillion Dollar TikTok Privacy Settlement

On February 25, 2021, Plaintiffs’ Motion for preliminary approval of a $92 million settlement was filed in the ongoing multidistrict litigation, In Re: Tiktok, Inc., Consumer Privacy Litigation (Case: 1:20-cv-04699).  Shortly after the filing of the motion, objections were filed regarding the basis and terms of the settlement.  After a hearing on March 3, 2021, the Court requested a supplemental briefing from the parties explaining, amongst other concerns: how the parties arrived at the final $92 million figure; how they addressed differences between adult users and minor users for purposes of the settlement; and, an additional explanation as to why class members could not be notified of the deal through the TikTok app itself.

So, what’s the scoop?  Let’s backtrack first.

Recall that on August 8, 2020, the Panel on Multidistrict Litigation consolidated 10 pending class action cases against TikTok Inc.  Five cases in the Northern District of California, four in the Northern District of Illinois, and one in the Southern District of Illinois, as In Re: Tiktok, Inc., Consumer Privacy Litigation (Case: 1:20-cv-04699).  The multidistrict litigation has now expanded to 21 putative class actions against Defendants TikTok Inc., ByteDance Technology Inc., and foreign Defendants TikTok, Ltd. (previously known and sued as Musical.ly), and Beijing ByteDance Technology Co. Ltd.  All actions concern Defendants’ collection, use, and transmission of highly sensitive personal data via Defendants’ ubiquitous TikTok app.  Plaintiffs in the consolidated actions allege that Defendants’ conduct with, respect to the scanning, capture, retention, dissemination of the facial geometry and other biometric information of users of the app is in violation of multiple privacy statutes.  Plaintiffs also allege that Defendants use private information to track and profile TikTok users among other things, for ad targeting and profit.  In other words: this case is obviously a big deal in the world of data privacy litigation.

The operative Consolidated Amended Class Action Complaint, filed on December 18, 2020, alleges ten separate causes of action against Defendants, including, violation of the Illinois Biometric Information Privacy Act (“BIPA”), the Computer Fraud and Abuse Act (“CFAA”), the California Comprehensive Data Access and Fraud Act (“CDAFA”), the right to privacy under the California Constitution, and California Unfair Competition Law (“UCL”), among others.

In response, TikTok has argued that it does not and never has collected from its users any biometric identifiers or derivative information protected by law, nor has it ever shared U.S. user data with foreign government third-parties.  In support of its position that it has not violated BIPA, TikTok has asserted that its user video data is not used to identify anyone, as app users cannot tag or label faces in videos with a user’s real name or identity.

The objections that were recently filed include that the settlement does not account for serious conflicts between minor class members, nationwide class members, and Illinois subclass members, arising out of: (a) the minors’ abilities to disaffirm any arbitration agreement or class action waiver, and (b) TikTok’s statutory obligation to delete data collected about them. The objections also include that the proposed settlement value is unfair, unreasonable, inadequate, and is far below the net expected value of continued litigation.  Objectors also attack the notice plan as violating both Rule 23 and Due Process. Objecting Plaintiffs allege that the notice plan improperly relies on publication notice when direct notice should be via the TikTok app itself.  They also claim the notice plan fails to set forth the estimated claim value, and appears to be designed to suppress the claims and objections rates.

How will this all shake out?  Will the court ultimately be satisfied that the settlement is fair and otherwise meets the various requirements necessary for preliminary approval?  Supplemental briefs from the parties are due by March 23, and a status and motion hearing is set for April 6.

© Copyright 2020 Squire Patton Boggs (US) LLP

ARTICLE BY Zarish Baig of Squire Patton Boggs (US) LLP
For more articles on Tik Tok, visit the NLR Litigation / Trial Practice section.

What to Do When a Lower Court Disregards the Appellate Court’s Mandate on Remand

Imagine this: You litigate a case for years. Your opponent wins summary judgment. You appeal. The appellate court agrees that the summary judgment was erroneous and remands for trial. On remand, your opponent argues that the appellate court actually affirmed the dismissal of one the claims that was clearly remanded for trial. The lower court accepts that argument. What do you do?

You are facing the injustice of being denied the victory you just won in the appellate court. You know you can return to the appellate court again—someday—as of right. But if that return trip does not happen until after trial, you will waste substantial time and resources on the erroneously-limited trial.

Fortunately, appellate courts take this issue very seriously and will entertain interlocutory appeals to ensure that lower courts obey their commands. When an appellate court remands a case to a lower court, it issues a “mandate”—an order directing the lower court to take some specified action. Case law is clear that the mandate must be followed to the letter. In New Jersey, for example, the leading case on this issue, Flanigan v. McFeely, was authored by then-state Supreme Court Justice William J. Brennan less than a year before his elevation to the U.S. Supreme Court. Justice Brennan explained that “the trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written.” He further explained that “[r]elief from its [i.e., the mandate’s] directions, even though manifestly erroneous, can be had only in the appellate court whose judgment it is.”

A recent unpublished Order confirms that New Jersey appellate courts continue to take Justice Brennan’s words seriously. In 2019, in Deborah Heart and Lung Center v. Virtua Health, Inc., the appellate court reversed and remanded for trial claims by plaintiff, a charity cardiac hospital, that the defendants, a nearby competing hospital system and a number of its officials and physicians, had effected a “plan to put Deborah out of business” by bullying vulnerable cardiac patients to transfer to a more distant hospital in Pennsylvania instead of to Deborah. The appellate court held that: “Our review of the record reveals email exchanges, deposition testimony, and certifications suggesting defendants collectively worked to shutter Deborah.” It then stated its mandate, in relevant part, as follows: “Reversed and remanded as to Deborah’s claims against defendants for unfair competition and civil conspiracy limited to the identified patients.”

Despite the clarity of this language, the main defendant, Virtua Health, argued on remand that only the civil conspiracy claim had been remanded, and the dismissal of the unfair competition claim had actually been affirmed. And one of the individual defendants, Richard Miller, the former CEO of Virtua Health, argued that his dismissal had actually been affirmed in its entirety. The lower court agreed with both of these defendants and entered in limine orders excluding from trial all claims against Miller and the unfair competition claims against Virtua.

The plaintiff responded by making a motion for an interlocutory appeal. The Appellate Division granted that motion and summarily reversed the trial court, ordering that:

Appellant’s motion for leave to appeal is granted, and the orders of September 29 and December 4, 2020, are reversed summarily. In our opinion in Deborah Heart and Lung Center v. Virtua Health, Inc., et al., No. A-2307-17 (App. Div. July 16, 2019), we reversed the summary judgment granted by the trial court to defendant Richard Miller. We also reversed the dismissal of Deborah’s claims for unfair competition and civil conspiracy, limited to the identified patients, as to all defendants, including the Virtua defendants, and remanded the case for trial on those claims. As the trial court’s orders of September 29 and December 4, 2020 are inconsistent with our opinion and the terms of the remand, they are reversed and the case again remanded for trial of plaintiff’s claims of unfair competition and civil conspiracy, limited to the identified patients, as to all defendants.

In the New Jersey Appellate Division, only about 14% of motions for interlocutory appeal are granted. Most appeals (about 78%) are ultimately affirmed—usually after full briefing and arguments on the merits. The summary reversal of the lower court in Deborah v. Virtua shows that appellate courts continue to take the principle first enunciated by Justice Brennan seriously.

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

ARTICLE BY Anthony Argiropoulos and Thomas Kane of Epstein Becker & Green, P.C.
For more articles on litigation, visit the NLR Litigation / Trial Practice section.

Declining a Shot in the Arm: What Employers Should Do When Employees Refuse Vaccines

Even before the pandemic, the Equal Employment Opportunity Commission (EEOC) and courts nationwide recognized that employees – even nurses and CNAs – had a right to refuse to take a vaccine because of a sincerely held religious belief or a medical reason. Those exceptions apply to refusals to take the COVID-19 vaccine, too. Firing or otherwise disciplining employees who have a legitimate religious exemption violates federal civil rights laws; firing or otherwise disciplining employees who have a legitimate medical exemption violates the Americans with Disabilities Act.

Remember that we are still under the vaccines’ Emergency Use Authorization (EUA) period. The EEOC has indicated that employers can require that employees get vaccinated, but the EUA statute contains some language saying that people have a right to refuse any vaccine during the EUA period. Courts have not yet decided the issue. So, there’s some legal risk for employers that choose to mandate that employees get vaccinated.

Most health care employers have decided to strongly encourage – but not require – employees to get vaccinated, partly out of concern that mandating the vaccine might lead to staffing shortages if enough employees refuse to get vaccinated and quit or are fired.

Religious Exemptions

A sincerely held religious belief has to be based upon a recognized religion’s tenets – generally, it can’t be based on a religion headed up by your brother-in-law who signed up to become a clergyman online. Employers may ask employees asserting a religious exemption what religion they belong to and other general questions. If the employee’s religion isn’t one that the employer has heard of, and doesn’t have a known opposition to vaccines, then it’s probably time to call an employment lawyer to figure out what to do next.

If it turns out that the religious exemption claim is legitimate, then the employer should talk to the employee about their ability to do everything the job requires despite not being vaccinated. For example, if the employee has been able to keep working by wearing masks and other PPE during the pandemic, then the employee can probably keep doing the job both during the remainder of the pandemic and even after the pandemic is over by continuing to wear masks and other PPE.

Medical Exemptions

A medical exemption from getting vaccinated works in the same way as a request for accommodation under the Americans with Disabilities Act. When an employee refuses to get vaccinated because of a medical reason, an employer can require the employee to have a doctor provide a letter explaining the basis for the medical exemption. Assuming the medical reason is legitimate, then the employer needs to have a talk with the employee about how it can reasonably accommodate the medical exemption from getting vaccinated in a way that allows the employee to do everything the job requires. Again, this will probably require continuing to use masks and other PPE both for the duration of the pandemic and even after the pandemic is over.

Potential Risks of Requiring Vaccines for Employees

If employers choose to require employees to get vaccinated, but employees refuse to get vaccinated for reasons other than a sincerely held religious belief or a medical reason, then employers have some choices to make.

First, there’s the legal risk if we’re still within the EUA period as noted above.

Second, there’s a practical risk. Regardless of whether we’re still in the EUA period, is a doctor actually willing to fire an employee for refusing to get vaccinated? Will enough employees refuse to get vaccinated, resulting in a staffing shortage? Health care employers should think through these issues before implementing a vaccine policy.

Lastly, be aware that some people may have legitimate fears about getting vaccinated due to completely understandable historical reasons. Health care employers are in an ideal position to explain that the vaccine is safe, but sensitivity to employees’ fears is surely called for.

Health care employers have been calling their employees “heroes” for a year now. Remember to treat them as heroes by listening to their concerns, and figuring out legal and practical solutions.

© 2020 Much Shelist, P.C.
For more, visit the NLR Labor & Employment section.

How to Use Client Trust Accounts to Actually Build Trust

We’ve all heard the old adage, “trust takes years to build, seconds to break, and forever to repair,” right? Well when it comes to winning and retaining clients in the legal world, that adage should be slightly tweaked.

Let’s go with – “trust takes seconds to build, years to perfect, but you’ll reap the benefits forever.”

How do you build trust in seconds? One tactic is to be as transparent as possible during your initial consultation while showing that you understand your client’s concerns. Better yet, if you can address those concerns on your client’s level and not in legalese, this can go a long way in building an instant connection.

One of the biggest stressors when it comes to hiring a lawyer is dealing with the transfer of money. Humans stressing about money is a tale as old as time. If you’re explaining the intricacies of your billing process in terms that aren’t used in everyday conversation like trust account, fiduciary responsibility, and disbursements —  your client’s eyes will glaze over and they won’t be able to pay attention to what you’re actually telling them.

In order to relay accurate information (thus building trust) about how your client’s money is going to be handled legally and ethically, you first need to understand the ins and outs of client trust accounts yourself. So let’s go over the basics, and come up with some ways that you can address these complex situations to further build client trust.

What is a client trust account?  

According to the ABA, “Standard rules and common practice dictate that lawyers use a client trust account (CTA) to hold funds paid by the client upfront as an advance on fees and expenses before the work is done and prior to the client’s approval of billing. Once the lawyer earns the fees and bills the client, and upon the client’s approval of the lawyer’s billing, the funds are no longer property of the client and should be removed from the lawyer’s CTA.”

Simply put —  a client trust account is a way to separate client funds from law firm operating funds. As basic as the theory is, the practice gets complicated when banks and credit card processors, who may not be acutely aware of the regulations, get involved.

If you want to ooze confidence and explain to your clients where their money will be at every step of your relationship, your first task is going to be to ensure that your firm’s client trust accounts are operating in compliance. Practice management software such as PracticePanther makes this easy by giving you a holistic view of all of your bank accounts, including client trust accounts, and even places stopgap measures and alerts in place so that you are using the appropriate funds at the appropriate times.

Pretty straightforward up until this point right? Here’s the kicker, each state bar has a different set of rules, so make sure you read up on your local bar’s requirements before you put yourself at risk for disbarment because you accidentally mishandled funds. The golden rule that remains in all states is that there is no commingling of client funds and firm funds, thus the need for detailed and accurate accounting.

When are these trust accounts used?

The three most common use cases of client trust accounts are as follows:

  • At the beginning of representation when initial funds are received.
    • In this situation, attorneys would place “unearned income” into the trust, including upfront fees, retainers, or cash advances. Again, by law attorneys can’t use this money for operations and it must be held in trust until the completion of their case or matter.
  • When and if there is payment from a settlement.
    • Transactions revolving around real estate for example must pass through a trust account and must not be commingled with operating accounts.
  • When an attorney acts as a fiduciary on behalf of a client or the client’s estate.
    • Similar to settlement, these “third party funds” that are handled by an attorney when acting as a fiduciary must remain separated.

Depending on your firm’s billing practices, here’s how you can explain client trust accounts.

“At the start of our relationship, we’re going to ask you to pay us (x amount of dollars) upfront.  We know this is quite a bit of money so we’d like to explain how we keep these funds safe. This money is placed in what’s called a client trust account and will remain untouched until we resolve your issue. We understand this may sound odd, but as attorneys, there are strict rules in place that we need to follow that ensure your money is used properly. Having your money stored separately means that we’re not using your money for someone else’s case.”

Taking a few minutes to walk through this process with your clients starts you off on the correct path.

Here comes the fun part – accounting! 

You’ve won your clients over and begin to represent them, diligence is the name of the game now when it comes to accounting. Here are a few best practices for you to remain compliant with your client trust accounting.

Step 1: Track each and every transaction whether it’s a deposit or a disbursement

Step 2: Keep a separate ledger for each client

Step 3: Add detailed notes for each transaction

Step 4: At the end of each month, you must reconcile the account. This helps you ensure accuracy, the goal being to match all activities going into and coming out of trust. This is called a 3-way reconciliation.

© Copyright 2020 PracticePanther

ARTICLE BY Dan Bowman of PracticePanther
For more articles on legal client trust, visit the NLR Law Office Management section.

Three Critical Questions That Will (Hopefully) be Answered by the SEC’s Lawsuit against Ripple

Late last year, the SEC filed a litigated action in the U.S. District Court for the Southern District of New York against Ripple Labs Inc. and two of its executive officers (collectively, “Ripple”), alleging that Ripple raised over $1.3 billion in unregistered offerings of the digital asset known as XRP. Ripple opted not to file a motion to dismiss the complaint, and based on recent filings it appears that the parties do not believe a pre-trial settlement is likely. The SEC’s complaint alleges that, beginning in 2013, Ripple raised funds through the sales of XRP in unregistered securities offerings to investors in the U.S. and abroad. Ripple also allegedly exchanged billions of XRP units for non-cash consideration, including labor and market-making services. The SEC’s complaint also named as defendants two executives of Ripple who allegedly effected personal, unregistered sales of XRP totaling approximately $600 million. According to the SEC, during all of this, Ripple failed to register its offers and sales of XRP, or satisfy any exemption from registration, in violation of Section 5 of the Securities Act of 1933.

The SEC’s case rests on the proposition that XRP is a security – if it is not, the SEC lacks jurisdiction. In SEC v. Howey, the Supreme Court provided a framework for determining whether certain assets are “investment contracts,” and therefore, are securities (Section 3(a)(10) of the Securities Act defines the term “security” to include an “investment contract”). In what is now known as the “Howey Test,” the Court explained that an asset is a security if it represents an investment in a common enterprise with the expectation of profits derived solely from the efforts of others. In its complaint, the SEC argues that XRP is a security because investors who purchased XRP anticipated that profits would be dependent upon Ripple’s efforts to manage and develop the market for XRP. Ripple has disputed the SEC’s allegations, arguing that XRP is a “fully functioning currency that offers a better alternative to Bitcoin.”

The Ripple case raises three very important questions regarding digital assets, and may provide a vehicle for the SEC or the court to offer answers to those questions:

  1. When does a digital asset transition from a security to a currency (or something else)? At one end of the spectrum, the SEC has made it clear that it views almost any initial coin offering (ICO) to involve the offer of securities. At the other end, there is Ether, which today relies on a distributed ledger without a centralized administrator. In 2018, then Director of the SEC’s Division of Corporation Finance, William Hinman, stated publicly that “putting aside the fundraising that accompanied the creation of Ether, based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions.” XRP probably falls somewhere in between those two extremes. Because of that, this case may present a unique opportunity for the SEC or the court to shed further light on how and where to draw the line between a security and a currency.
  2. How will President Biden’s administration approach digital assets? Under Chairman Clayton’s leadership, the SEC took a deliberate approach towards digital assets and, as reflected by the Ripple case, was not hesitant to bring enforcement actions in this space. President Biden has nominated Gary Gensler to the be the next SEC Chair. For the past few years, Mr. Gensler has been a Professor at MIT, teaching courses on blockchain and crypto assets. He will almost certainly have strong views on how the SEC should approach digital assets. As this litigation progresses, we may gain some insight into those views.
  3. How should disgorgement be calculated for a violation of Section 5 (and only Section 5) after the Supreme Court’s decision last year in Liu? In the Ripple case, the SEC has alleged that the company raised over $1.3 billion from sales of XRP, and the two individual defendants sold approximately $600 million of XRP. In the past, the SEC has often argued that all proceeds of an offering made in violation of Section 5 were subject to disgorgement as ill-gotten gains. In Liu, however, the Supreme Court explained that courts should deduct “legitimate expenses” when calculating disgorgement. The Ripple case could provide the SEC or the court the opportunity to explain how to calculate legitimate expenses, particularly in this case, where there are no allegations that the company or executives engaged in fraud, and it looks like the company will be able show substantial expenses from operating its business and the executives will be able to show that they provided legitimate employment services to Ripple.

Hopefully, the Ripple case will provide answers to one or more of these questions. Stay tuned.

© 2020 Proskauer Rose LLP.
For more, visit the NLR Securities & SEC section.

Transgender Students and Title IX: Biden Administration Signals Shift

President Biden issued Executive Order (EO) on Preventing and Combating Discrimination Based on Gender Identity or Sexual Orientation on Jan. 20, 2021.[1] While the EO itself is a high level policy statement and does not, in and of itself, immediately change any practices for public school districts, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of transgender and other LGBTQ students.

What policy is asserted in the EO?

The Executive Order asserts that “[a]ll persons should receive equal treatment under the law without regard to their gender identity or sexual orientation”, including that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, locker room, or school sports.” Additionally the EO provides: “[e]very person should be treated with respect and dignity without regard to who they are or whom they love; “[a]dults should be able to earn a living without worrying about being fired or demoted because of who they go home to or whether their dress conforms to sex-based stereotypes”; and “[p]eople should have access to healthcare and be able to put a roof over their heads without being subjected to sex discrimination.”

The EO bases its reasoning on Title VII of the Civil Rights Act of 1964 and the Supreme Court’s recent case of Bostock v. Clayton County, which held that Title VII’s prohibition against “sex discrimination” includes a prohibition against discrimination based on sexual orientation and gender identity. The EO asserts that Bostock’s reasoning also applies to other laws, including Title IX, that prohibit sex discrimination.

What does the EO require federal entities to do?

It requires the head of every federal agency (including the U.S. Department of Education) to:

  • Consult with the United States Attorney General as soon as practicable;
  • Review all existing orders, regulations, guidance documents, policies, programs, or other agency actions under any statute or regulation that prohibits sex discrimination and determine whether those items are consistent with the EO; and
  • Within 100 days of the Order, work with the Attorney General to implement an action plan to carry out the actions identified in its review of its policies, programs, guidance, rules, or regulations and that may be inconsistent with the Order’s stated policy.

How are the stated policy and required action different from the past?

The EO’s language stands in direct contrast with the prior administration’s stance on legal protections for students based on sexual orientation and gender identity. For example, under the prior administration, the U.S. Department of Education took the position that Bostock’s reasoning did not apply to Title IX and specifically reaffirmed its position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms based on biological sex, rather than gender identity.

In fact, the prior administration issued correspondence explicitly disagreeing with how two federal circuit courts interpreted Title IX. In Grimm v. Gloucester County School Board and in Adams v. School Board of St. Johns County, the Fourth Circuit (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) and Eleventh Circuit (covering Alabama, Florida, and Georgia) held that public school students have the right, under both Title IX and the Equal Protection Clause of the Fourteenth Amendment, to use bathrooms consistent with their gender identity. The Eleventh Circuit, in particular, relied on Bostock to interpret Title IX’s prohibition against sex discrimination.[2] The new EO rejects the previous administration’s assertion that the Bostock decision does not apply to agency interpretation of Title IX.

While the EO does not specifically rescind any specific order or action, its broad mandate that agencies review existing programs and policies likely will lead to updated guidance, enforcement priorities, and rules implementing Title IX and other laws prohibiting sex discrimination.

What should schools do now?

The current administration will likely implement major changes related to discrimination on the basis of sexual orientation or transgender status. This may include requiring schools to allow students to use bathrooms and locker rooms that are consistent with their gender identity, and to play on athletic teams that are consistent with their gender identity. Additionally, schools can expect more robust federal agency investigation of complaints of discrimination based on gender identity and sexual orientation.

In light of Bostock, all schools subject to Title VII of the Civil Rights Act should ensure that their employment policies prohibit discrimination on the basis of sexual orientation and gender identity, in conformity with Bostock. In addition, all colleges and universities, as well as all public K-12 school districts, in the Fourth and Eleventh circuits should ensure that their bathroom policies allow students to use bathrooms consistent with their gender identity.

Finally, colleges and universities, as well as public K-12 school districts, should review their practices and procedures to determine how to best support the rights of transgender students in their programs and activities. They should prepare for greater scrutiny at the federal level and be prepared to defend their practices.

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/

[2] Note, though, that the School Board of St. Johns County has petitioned for an en banc hearing. That petition has not yet been ruled upon.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLP

ARTICLE BY Neeru “Nina” Gupta and Suzann M. Wilcox of Nelson Mullins
For more, visit the NLR Public Education & Services section.

New Policy to Remove Barriers to COVID-19 Testing

On February 26, 2021, the Centers for Medicare & Medicaid Services, Department of Labor and Department of Treasury issued guidance removing barriers to COVID-19 diagnostic testing and vaccinations and strengthening requirements that plans and issuers cover diagnostic testing without cost sharing. This guidance makes clear that private group health plans and issuers generally cannot use medical screening criteria to deny coverage for COVID-19 diagnostic tests for individuals with health coverage who are asymptomatic, and who have no known or suspected exposure to COVID-19. Such testing must be covered without cost sharing, prior authorization, or other medical management requirements imposed by the plan or issuer. For example, covered individuals wanting to ensure they are COVID-19 negative prior to visiting a family member would be able to be tested without paying cost sharing.  The guidance also includes information for providers on how to get reimbursed for COVID-19 diagnostic testing or for administering the COVID-19 vaccine to those who are uninsured.  Click here for the newly issued guidance.  See press release here.

The new guidance should encourage providers to offer COVID-19 testing at their offices and outpatient locations since private group health plans and issuers must cover and reimburse for COVID-19 testing of asymptomatic individuals and defers to the provider’s individual clinical assessment of the patient to determine whether the patient should be tested for COVID-19.  This new guidance should also increase patient access to testing and remove barriers to encourage patients to be tested prior to travel without fears of large out of pocket payment for testing.  The provider should check with health plans to confirm that they have implemented this policy prior to starting to administer the test to the newly covered group.  Likewise, patients should check their coverage under their health plans.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

ARTICLE BY Anjali N. Baxi of Giordano, Halleran & Ciesla, P.C.
For more, visit the NLR Health Law & Managed Care section

UK Imposes Strict Quarantine Requirements for Passengers From ‘Red List’ Countries

On 15 February 2021, the UK government imposed stricter requirements on individuals travelling or transiting from any of the 33 countries (‘red list countries’) that have had a travel ban to England applied. Separate advice applies to Scotland, Wales, and Northern Ireland.

Only British citizens, Irish citizens, and those with UK residence rights are able to enter the United Kingdom if they have visited or transited through a red list country in the 10 days prior to entry to England.

These individuals will need to quarantine in a government-managed hotel for 10 days (11 nights) from the date of their arrival. They must also abide by the following requirements.

  • Individuals must only arrive at an authorised airport. According to the guidance, authorised aiports include only Heathrow Airport, Gatwick Airport, London City Airport, Birmingham-Shuttlesworth International Airport, and Farnborough Airport, although ‘[o]ther ports of entry may be added in the future.’ Passengers whose flights are due to arrive at a different airport must reschedule them to an authorised airport.
  • Individuals must provide a negative COVID-19 test to travel to the UK. The test must be taken in the three days prior to departure, and must be negative in order to travel or board the plane. Their results will need to be provided upon arrival in the UK, or else a fine of £500 could be imposed.
  • Individuals must reside in a government-managed hotel. The 10-day quarantine period must be in one of the government-managed hotels and reserved via the booking portal (before arriving in England). The fee for the ‘quarantine package’ for one adult is £1,750. To add another person over the age of 12 to the booking will cost £650, or £325 for a child between the ages of 5 and 12. This price includes transport to and from the hotel, meals, and COVID-19 testing on the second and eighth days of the 10-day quarantine period.
  • Individuals must complete an online ‘passenger locator form’ in the 48 hours prior to travelling to the UK. The form is intended to provide a passenger’s journey and contact details. Passengers who do not complete the form may face delays in entering England or they could be fined or refused entry. Once the form has been completed, passengers will receive a confirmation email with a document attached. The document will contain a QR code that will be scanned by the Border Force to confirm that the form has been completed successfully.

Sanctions may be imposed on passengers who provide false or deliberately misleading information on the passenger locator form. Passengers who provide inaccurate information may be fined ‘up to £10,000, imprisoned for up to 10 years, or both’. If the quarantine rules are broken, fines of up to £10,000 may be imposed.

The situation with COVID-19 and pre-entry requirements to the UK is constantly changing, and it is also likely that other countries may be added (or removed) from the red list. Individuals may want to review the guidance for updates and further information on how to quarantine when arriving in England.

The government also provides guidance for passengers who are not travelling to England from red list countries.

Wales

Passengers may not directly travel to Wales if they have visited or passed through a red list country in the previous 10 days. They must arrive through one of the designated ports of entry to the UK in England or Scotland and ‘isolate for 10 days in a managed quarantine hotel.’

They must also complete a passenger locator form, have proof of a negative COVID-19 test (taken no more than 72 hours before departure), and also take a test on or before the second day and on or after the eighth day of quarantining.

Scotland

Although part of the UK, different rules apply regarding quarantine for individuals arriving in Scotland. All travellers flying into Scotland from outside the Common Travel Area (not just the red-list countries) must book and pay for managed isolation in quarantine hotels. The Common Travel Area comprises of the United Kingdom, Ireland, the Isle of Man, and the Channel Islands.

The following requirements apply for individuals arriving by air into Scotland.

  • Individuals must provide a negative COVID-19 result during the three days before travel.
  • Individuals must ‘book and pay for managed isolation in a quarantine hotel for at least 10 days from the point of arrival’.
  • Individuals must ‘complete an online passenger locator form before travelling, and provide contact details, travel details and the address of [the] final destination’.
  • Individuals will also need to provide the booking reference for the quarantine package.
  • Individuals must be tested on the second and eighth days of the 10-day quarantine period.
  • Individuals must follow the national rules on ‘Coronavirus in Scotland.’
    © 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
    ARTICLE BY Ruhul K. Ayazi of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more, visit the NLR Immigration section.

Developing a Successful Social Media Strategy for Law Firms: Part 3 Good2bSocial Digital Academy

Last week, we covered Good2bSocial’s content marketing strategy for law firms module, going over how law firms can use thought leadership to align their business goals with those of their clients. Good2bSocial’s Digital Academy includes eight modules that provide legal marketers with essential knowledge of digital marketing concepts. Good2bSocial’s Digital Marketing Certification offers a module on Law Firm Social Media Strategy, complete with videos, articles, assignments and webinars that break down how firms can put together a valuable social media strategy. Key concepts covered in the module include how to define a law firm brand, extend the reach and engagement of a law firm’s social media posts and how to build and maintain a following. The module also includes lessons on how law firms can best utilize various social media platforms, including Instagram and LinkedIn.

Effective social media marketing strategies that drive engagement and generate leads are an essential part to any law firm’s business development plan. Despite this, some law firms have trouble implementing a successful strategy. This is a missed opportunity for lawyers to build connections with prospective clients and to further connect the dots between the practice areas and legal matters associated with lawyers’ messaging and the law firm’s brand goals.

There’s a great deal of information out there on how businesses can use social media to define and heighten their brand. The unique value proposition of Good2bSocial’s Digital Marketing Academy is that it distils and refines social media, content marketing and SEO best practices and applies them to the legal services industry. Ryan King of Ogletree Deakins shared his thoughts on the course, saying:

“This course was excellent. It covered all the major areas of digital marketing and was hyper specifically designed for those in a law firm environment. The number of sessions were just right. The homework assigned for each session was impactful, memorable, digestible, and always underscored the importance of the week’s lesson.”

The Law Firm Social Media Strategy module begins with a social media checklist for law firms, breaking down key concepts that are needed to get started, with defining the target audience being the first step.

How to Define Your Target Audience and How to Choose Effective Social Media Platforms for your Law Firm

The most important step in the process of crafting a social media strategy for law firms is to define the audience your attorneys are trying to target. These steps include determining the following:

  1. What Age is Your Target Audience?
  2. What Does your Audience Do for a Living?
  3. What is the Marital or Family Status of Your Audience?

This process includes going beyond targeting people who just “need a lawyer.” Defining key characteristics of an ideal law firm buyer persona helps the firm understand how to reach the audience they want through targeting marketing collateral directly to them. Tweaking law firm thought leadership and social media to address the needs of where the potential buyer is in the sales cycle.

Once an audience is defined, law firms can then determine which platform to choose to best target them. For example, if the target audience is a professional one, LinkedIn is a good place to start. If firms are on LinkedIn, they should ensure their company profile includes information on company culture, the firm’s business areas, job openings and links to thought leadership.

An active Twitter account is also a must-have for law firms looking to improve their social media marketing efforts. Twitter is a great place to share thought leadership articles, as well as information on attorney speaking engagements, client events and well-being initiatives. Including news from the firm itself humanizes the brand, giving the law firm’s Twitter feed personality. Firms can also use multimedia such as photos, videos and podcasts to make tweets more visually appealing, which can drive engagement.

While LinkedIn and Twitter are useful tools, they’re not the only platforms that can be utilized by law firms for social media marketing. Good2bSocial’s Social Law Firm Index found that 42 percent of the Am Law 200 firms are active on Instagram, using the platform for both recruitment efforts and to reach new clients. Law firms can use Instagram in innovative ways such as highlighting the employee experience at the firm, promoting company culture and sharing firm accomplishments. Through using Instagram effectively, firms can show why attorneys should come work for them, and why clients should hire them.

How to Refine your Law Firm’s Social Media Bios for a B2B Buyer

Talia Schwartz, Good2bSocial’s Director of Marketing, details the strategy behind and the importance of perfecting an attorney’s and law firm’s social media bio and why it is key in helping lurkers actually engage with your firm or your attorneys. Per Fishman:

“If someone is looking at your professional profile, it’s because they think you might be able to help them with some kind of problem…they are more interested in what you can do than who you are. Accordingly, your firm or your lawyers should take advantage of the available space to highlight events or skills that make you stand out as a lawyer in your area of practice”.

Creating Curated Content While Setting & Measuring Goals

The next step is to frame your law firm’s content around the challenges faced by your audience. The key to doing this successfully is to both promote your own content, as well as articles from outside sources. This decreases the appearance of being too promotional and also brings the ‘social’ into social media versus a bullhorn for your message and provides opportunities to interact with potential buyers and /or brand advocates. Generally, content should also be educational and curated to help solve the problems faced by your audience. Module 1 of Good2bSocial’s Digital Marketing Academy details the how and why of analyzing and constructing a law firm or practice group buyer persona which helps contextualize the buyer’s journey and focuses your firm’s thought leadership to match the concerns of potential buyers.

If law firms are going to take the time to create content, then the return on investment for promoting it on social should also be high. This can be achieved by setting realistic goals for engagement and growth. Some key metrics to track include increased brand awareness, higher traffic volume, new leads for newsletters, as well as retweets, shares, views and comments. Establishing a benchmark can help establish a measurable metric that firms can track over time.

Having the right tools for social media management is essential to streamlining processes and saving time. Common social media planning applications include Hootsuite, HubSpot, SEMRush and Sprout Social. These applications make it easier to schedule posts in advance. It will take some trial and error to find the right tool for your team, so feel free to try a few programs and figure out what works best. One of the most helpful features of the social media module is the analysis of top-performing law firm Twitter, Instagram and LinkedIn accounts.

Achieving Business Results Through Employee Training

One of the last pieces of the puzzle includes creating an employee advocacy strategy, investing time and effort to train lawyers and other professionals on how to properly use social media. This empowers employees to share more on social media platforms, increasing brand awareness, exposure and reach for the firm.

Law firms can generate business results from social media by finding their audience online, choosing a platform, setting goals and choosing the right tools. By adhering to this roadmap, law firms can keep track of their goals and achieve results. Good2bSocial’s module on Law Firm Social Media Strategy gives law firms a strong foundation to create a strong social media presence across multiple platforms through conducting audience research, defining a law firm brand, choosing the right platform, creating content that is effective, training employees, and harnessing the right tools to measure progress toward goals.

To learn more about the Good2bSocial Academy and the law firm-focused topics covered please click here.

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.

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

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Rachel Popa of the The National Law Review / The National Law Forum LLC
For more, visit the NLR Law Office Management section.

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