The National Law Forum

Arizona Civil Rights Act Amended to Protect Pregnant Workers

On February 4, 2021, Arizona Governor Doug Ducey signed into law House Bill (H.B.) 2045, which expands protections for pregnant workers under Arizona law. The measure amends the Arizona Civil Rights Act (ACRA) to mirror existing protections under the federal Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964. Arizona legislators passed H.B. 2045 because the ACRA did not previously contain express protections for pregnancy and related conditions. To address the gap between state and federal law, Arizona legislators amended the ACRA to allow the Arizona Attorney General’s Office to investigate and enforce these protections under state law. With the governor’s signature, Arizona joins at least 27 states that have enacted laws specifically prohibiting discrimination against pregnant employees.

Expanded ACRA Protections

H.B. 2045 amends Arizona Revised Statutes (A.R.S.) § 41-1461 to specify that prohibited discrimination “‘because of sex’ and ‘on the basis of sex’ includes because of or on the basis of pregnancy or childbirth or related medical conditions.” Additionally, A.R.S. § 41-1463 now expressly states that “women who are affected by pregnancy or childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work ….” This language aligns the ACRA with the Pregnancy Discrimination Act’s existing protections.

Pregnancy Discrimination Claims After SCOTUS Decision

Considering that case law regarding Title VII of the Civil Rights Act of 1964 is persuasive in interpreting the ACRA, it is likely that the analysis of claims arising under Arizona’s new protections will follow the analysis of the Supreme Court of the United States in a 2015 case in which an employee sued her employer claiming that her employer did not accommodate her pregnancy-related lifting restriction but accommodated other workers with similar restrictions. Although the Court declined to require employers to provide accommodations to pregnant workers if any nonpregnant workers received accommodations for similar limitations—which would have created a ‘“most-favored-nation’ status” for pregnant workers—the Court did create a new “significant burden” standard to analyze pregnancy discrimination claims.

Key Takeaways

The law is expected to take effect on or about July 19, 2021. For Arizona employers with policies and practices that are already in compliance with the federal Pregnancy Discrimination Act, H.B. 2045 may be of little impact. Arizona employers may nevertheless wish to review their policies and practices to ensure compliance with H.B. 2045, considering, for instance, potential amendments to their equal employment opportunity and/or nondiscrimination policies that include pregnancy and related medical conditions. In addition, Arizona employers may want to familiarize themselves with federal case law and Title VII guidance along with guidance related to the Pregnancy Discrimination Act (which includes pregnancy-related conditions within the definition of sex discrimination under Title VII).

ARTICLE BY Nonnie L. Shivers of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more, visit the NLR Labor & Employment section.

Heavy Metals In Baby Food Pose Concern For Baby Food Industry

On February 4, 2021, the U.S. House of Representative’s Committee On Oversight and Reform (Subcommittee on Economic and Consumer Policy) issued a report entitled “Baby Foods Are Tainted With Dangerous Levels of Arsenic, Lead, Cadmium and Mercury“, which sent ripples of concern through the consumer ranks and the baby food industry. Heavy metals in baby food has received attention before, but never before in such a significant way from a House Subcommittee report like the one published this month. The findings and the proposed changes to regulations for the baby food industry that the subcommittee put forth will have significant compliance impacts on companies, as well as open certain baby food companies up to litigation risks that cannot be ignored.

Findings In the House Report

On November 6, 2019, the House Subcommittee requested internal documents from seven of the largest manufacturers of baby food in the United States, which included companies making both organic and conventional products. The request was prompted by reports that alleged that there are high levels of heavy metals in baby foods, specifically arsenic, lead, cadmium and mercury. The Food and Drug Administration (FDA) and World Health Organization (WHO) have both found these heavy metals to be dangerous to human health, especially infants and children. Four of the baby food manufacturers complied with the House Subcommittee’s request.

From the documents obtained from the four companies, the House Subcommittee concluded that there was evidence that “commercial baby foods are tainted with significant levels of toxic heavy metals,
including arsenic, lead, cadmium, and mercury.” The report said that internal company standards “permit dangerously high levels of toxic heavy metals, and documents revealed that the manufacturers have often sold foods that exceeded those levels.”

The FDA currently has maximum allowable limits for the heavy metals at issue in certain circumstances, including 10 parts per billion (ppb) of arsenic, 5 ppb of lead, and 5 ppb of cadmium in bottled water. The Environmental Protection Agency has also set the permissible level of mercury in drinking water at 2 ppb. However, the House Subcommittee concluded that “the test results of baby foods and their ingredients
eclipse those levels: including results up to 91 times the arsenic level, up to 177 times the
lead level, up to 69 times the cadmium level, and up to 5 times the mercury level.”

The FDA indicated that it is reviewing the House Subcommittee’s report. It also noted that the heavy metals at issue in the report are present naturally in the environment and can enter baby food through the soil, water or air.

Recommendations From the House Report

As a result of its findings, the House Subcommittee outlined five recommendations:

(1) Mandatory testing – this would require baby food manufacturers to test finished products (not just ingredients) for heavy metals. The House Subcommittee urged the FDA to set this requirement;

(2) Labeling – the Subcommittee proposed that the FDA require baby food manufacturers to list all heavy metals in the finished product on labelling so that consumers are aware of the elements’ prsence;

(3) Phase Out – the House Subcommittee urged manufacturers to voluntarily phase out heavy metals from products entirely, or at least phase out products that have high amounts of ingredients that test high in heavy metals;

(4) FDA Standards – the Subcommittee urged the FDA to set limits for permitted heavy metals in baby foods; and

(5) Parental Vigilance – the report urges parents to avoid baby foods that contain ingredients that test high in heavy metals. The Subcommittee indicated that implementing recommendations 1 through 4 would inform parents to make determinations soundly.

Immediate Litigation Impact

The day after the House Subcommittee’s report was published, three major baby food companies were sued for selling products with elevated levels of certain heavy metals. One such lawsuit was filed in New Jersey, while the other was filed in California. While the class actions lawsuits present several legal theories for liability, the one that may have some weight with courts is the simple allegation that the products were unsafe for consumption by the very class (infants and babies) for which the products were made.

Baby food has been on California’s Proposition 65 target list for quite some time, and many companies that manufacture or sell baby food products in California have been receiving customer and retailer inquiries regarding heavy metals in baby food products. Companies have also begun testing baby food products to ensure compliance with Prop 65 regulations. Ensuring proper responses to consumer and retailer inquiries, compliance auditing of ingredients and end products, and developing risk management plans are key for any company right now in the baby food industry, especially with the potential for future FDA regulations.

ARTICLE BY John Gardella of CMBG3 Law

For more, visit the NLR Biotech, Food, Drug section.

Free Speech and Expression in the 2021 Workplace

While the presidential election may be in the past, conversations on political and social issues are not. As the new Presidential Administration takes the helm, the pandemic continues, and significant political division persists, conversations on political and social issues are commonplace in many workplaces across the country. Manufacturers are still grappling with the issue of whether and to what extent they can restrict employee speech and expression in the workplace. Can employees discuss political or social issues at work? What happens if it causes tension and distraction at work? Does it matter if it occurs on working time?

Generally, there is no right to free speech in private workplaces since the First Amendment of the U.S. Constitution does not apply to private sector employers. However, such rights may be granted under state laws which vary greatly. Some state laws protect speech and expression, prohibit employees from participating in politics or becoming political candidates, prohibit employers from influencing employees’ votes, prohibit discrimination based on political affiliation of employees, among other laws. For example, under Connecticut law, both public and private employees have free speech protections and employers are prohibited from disciplining or discharging employees for exercising their free speech rights with certain limitations. Specifically, free speech is permissible assuming that it does not interfere with the employee’s job performance or relationship with the employer and addresses a matter of public concern such as terms and conditions of employment, social justice, among other reasons. Therefore, even under Connecticut law, conversations or expressions that disrupt working time and operations, may not be protected.

Certain employee speech is also protected under the National Labor Relations Act (NLRA). The NLRA, which applies to both unionized and union-free workplaces, protects employees’ right to engage in “protected activities” for the purpose of mutual aid and protection. Under the NLRA, employees have the right to engage in speech and expression related to working conditions which could include discussing compensation and benefits, supporting social or political causes such as fair wages, among other issues. Some state laws also protect such speech. Employers are generally not permitted to maintain rules prohibiting such speech except in specific circumstances. Speech related to the workplace and working conditions may also be protected under whistleblower statutes designed specifically to encourage employees to raise such issues.

There are further considerations that employers may want to evaluate before they take adverse action against an employee for speech or expression in the workplace. Actions taken consistently and uniformly across the company are less likely to run afoul of state or federal anti-discrimination laws. Further, employers that may face issues related to speech in the workplace, might explore implementing a policy addressing workplace standards as well as training managers/supervisors with regard to appropriate practices regarding employee communication in the workplace.

ARTICLE BY Abby M. Warren of Robinson & Cole LLP

For more, visit the NLR Labor & Employment section.

Game On: Are New Opportunities Opening Up for Brands to Use Student Athletes’ Name, Image and Likeness Rights?

The debate over the extent to which student athletes should be compensated is hardly new, but antitrust challenges brought against the NCAA, and new state legislation allowing athletes to receive compensation for the use of their name, image or likeness (commonly abbreviated as “NIL”) has shone a fresh light on the issue. This state legislation, along with a call for national action, may drastically change the world of collegiate athletics as we know it. Will this change be for the better or worse? Views differ, and time will tell.

New legislation in several states, such as the Fair Pay to Play Act in California, will not limit the academic institutions’ ability to use an athlete’s name, image and likeness to generate revenue, marketing and sponsorship deals, but it will allow for sponsors and brands to contract directly with a student athlete for deals concerning their NIL. These laws are contrary to current NCAA rules.

Pre-Game Background and the O’Bannon Decision

The NCAA is the governing body behind college athletics. Although it is a nonprofit organization, college sports is big business, and the NCAA’s massive television contracts, global media power, and strict policies have a direct effect on the sports industry and the student athletes that are its lifeblood. Significant revenues are generated in connection with college sports, and, for the most part, student athletes do not share in the wealth.

Historically, the NCAA has ensured that student athletes (also known as “amateur athletes”) were prohibited from receiving pay for their NIL rights through Article 12 of the NCAA Bylaws (the Bylaws), which provides that “only an amateur student athlete is eligible for intercollegiate participation in a particular sport” (emphasis added).¹ While the NCAA does not explicitly define “amateurism” in the Bylaws, it does define a “professional athlete” as “one who receives any kind of payment, directly or indirectly, for athletics participation except as permitted by the governing legislation of the Association.”² Student athletes lose eligibility if they, among other things, get an agent, enter a professional draft after enrollment, or accept pay in any form in their sport.³ The requirement that student athletes maintain their “amateur status” has created a hurdle for student athletes with any hope of seeing a cut of profits from use of their NIL.

In 2008, UCLA basketball standout Edward O’Bannon saw himself in avatar form in a videogame.⁴ The character looked like him, played for the same team, and wore his jersey number. He had not consented to this use of his NIL and received no compensation for it. In O’Bannon v. NCAA, O’Bannon was drafted as the lead plaintiff in a federal lawsuit against the NCAA.⁵ He claimed that the NCAA’s restriction on Division I Men’s basketball and football players’ ability to receive pay for use of their NIL was an unlawful restraint on trade prohibited by the Sherman Antitrust Act.⁶

The trial court agreed, holding that NCAA rules are not immune from the antitrust laws and that, when challenged, they must be tested by the Rule of Reason, a three-step, burden-shifting process applied in antitrust challenges, where the court considers (1) the anti-competitive effects of the alleged restraint in a given market, (2) the pro-competitive effects, and (3) whether less restrictive alternatives could achieve the same legitimate objectives.⁷ The court held that the NCAA prohibition on paying athletes for NIL use was anti-competitive in the relevant market; that maintaining “amateurism” in college sports was a legitimate pro-competitive objective because it increased consumer demand for college sports and integrated academics and athletics; and that the plaintiffs had shown less restrictive alternatives for achieving that objective, namely, allowing schools

to provide scholarships to athletes up to the full “cost of attendance” and
to pay cash compensation of up to $5,000 per year to be held in trust until after graduation.⁸ The US Court of Appeals for the Ninth Circuit largely agreed and affirmed on appeal, though it limited the injunction only to the first of the proffered alternatives. As to the $5,000 per year trust payment, the appellate court determined that allowing a student to be a “poorly-paid professional athlete” would not be virtually as effective as retaining full amateur (non-professional) status.⁹ Thus, the court held that a rule prohibiting cash payments unrelated to education was not an antitrust violation.¹⁰ This case was perhaps a win for student athletes, but it can hardly be called an upset — compensation for NIL use could be capped at whatever remained for the cost of attending the school.

Student Athletes Get a Rematch

Since August 2015, the Bylaws have allowed many exclusions to their no-pay rules, authorizing a wide range of above-cost-of-attendance payments, both related and unrelated to education, including athletic participation awards, disbursements for tutoring, study abroad expenses, car repair, insurance policies, mandatory medical care, per diem charges, and many other expenses.¹¹ But, the general prohibition on receiving pay remains. In In re NCAA, three classes of athletes comprising FBS football players, Division I men basketball players, and Division I women basketball players, again, challenged the NCAA’s amateurism rules as unlawful restraints of trade.¹² Their argument was similar in nature to O’Bannon, but the relaxed rules on permissible compensation allowed the plaintiffs to target additional gaps in the NCAA’s pro-competitive defense, more broadly attacking the interwoven set of NCAA rules that restrict the amount of compensation students may receive in exchange for their athletic-related services.

The district court entered a permanent injunction, implementing less restrictive alternatives to the NCAA rules, namely (1) allowing the NCAA to continue limits on grants in aid at no less than the cost of attendance, (2) allowing the NCAA to continue to limit compensation and benefits unrelated to education, and (3) enjoining limits on most compensation and benefits related to education but allowing certain limitations.¹³ The NCAA appealed.

On appeal, the Ninth Circuit emphasized the district court’s conclusion that “not paid” and “amateurism” are not synonymous, as shown, in part, by the numerous carve-outs allowing money to go to student athletes unrelated to education expenses.¹⁴ The Ninth Circuit affirmed and reiterated that the crux of the problem comes from the actual price-fixing of student athlete compensation.¹⁵ The NCAA echoed its pro-competitive argument from O’Bannon, but the Ninth Circuit found that only some of the challenged rules were pro-competitive. Preventing the receipt of “unlimited cash payments akin to professional salaries” was justified, but rules restricting “non-cash education-related benefits” did not foster or preserve demand for college athletics.¹⁶

The relaxation of payment to student athletes since O’Bannon affirmed that “non-education-related cash payments in excess of cost of attendance are no longer a ‘quantum leap’ from current NCAA practice,” as they were once described in O’Bannon (emphasis added).¹⁷ The Ninth Circuit affirmed, holding that “NCAA limits on education-related benefits do not ‘play by the Sherman Act’s rules.’”¹⁸ The Supreme Court granted certiorari on December 16, 2020, and arguments are currently scheduled for March 31.

Full Court Press: The Rulebook is Changing

In the wake of O’Bannon and In re NCAA, states around the country quickly began passing legislation allowing athletes to receive payment for their NIL rights. California’s Fair Pay to Play Act (the California FPPA) was the first of its kind and paved the way for other states to follow suit. The California FPPA blatantly went against the rules of the NCAA. Effective January 1, 2023, the California FPPA not only allows athletes to receive compensation for NIL rights, it also bars the NCAA from retaliating against players or teams for pursuing such compensation. Florida, Colorado, Nebraska, and New Jersey have passed similar legislation, with Florida’s new law on Intercollegiate Athlete Compensation and Rights (SB 646) taking effect July 1, 2021.¹⁹ All states so far have included prohibitions against a student athlete entering into a contract involving NIL rights where a provision of that contract would conflict with a provision in the team’s contract.²⁰ For example, if UCLA has an endorsement deal with Under Armour, a player on that team may not enter into a conflicting contract with Nike to use his likeness in advertising.

With multiple state laws poised to go into effect and grant NIL rights to student athletes, the federal government and the NCAA are now considering a uniform body of laws regulating NIL rights compensation. In addition to benefiting college athletes, uniform regulations would benefit the NCAA, allowing it to regulate compensation for NIL rights in a uniform fashion, rather than on a state-by-state basis. In turn, the NCAA could help maintain competitive fairness in college athletics. Companies would have the opportunity to sponsor players across the country — not just in those states that passed NIL rights legislation — allowing them to maximize profits generated through student-athlete endorsement deals. There is, of course, another side: if student athletes are poised to see more revenue, that money has to come from somewhere. There is a risk that the line between college and professional athletics is further blurred.

The NCAA has called on Congress to pass federal legislation regulating NIL compensation and has even presented Congress with its own version of legislation: The Intercollegiate Amateur Sports Act of 2020. Although the NCAA’s proposal was not introduced, multiple bills have been. There’s US Senator Roger Wicker’s Collegiate Athlete and Compensatory Rights Act, US Senator Marco Rubio’s Fairness in Collegiate Athletics Act, US Representatives Anthony Gonzalez’s and Emanuel Cleaver’s Student Athlete Level Playing Field Act, and US Senators Cory Booker’s and Richard Blumenthal’s College Athletes Bill of Rights, all of which were introduced during the last session of Congress. One issue that differs in the various proposals is whether a new law would protect the NCAA from future antitrust challenges. All of the proposals would permit student athletes the right to earn compensation for use of their NIL.

Power Forward

Thus far, the current session of Congress has not taken up any of the bills introduced last session or introduced any new bills concerning NIL rights for student athletes. And, the NCAA, despite voting unanimously last year to permit student athletes to benefit from the use of the NIL and directing

updates to the Bylaws, announced on January 11 that it was tabling the proposal, citing “external factors, including recent correspondence with the U.S. Department of Justice.”²¹ Electronic Arts (EA), a videogame producer who was involved in the O’Bannon case but settled and has refrained from releasing any college football videogames since 2013, just announced that it plans to bring the game back, but it will be different. Pursuant to a deal reached with the NCAA’s licensing company, the game will feature real teams, uniforms and logos, but it will not include any player-specific NIL.²²

But Florida’s law is set to go into effect this summer, ahead of the start of the next college football and basketball seasons. While the NCAA and Congress may continue to struggle with the task of compensating student athletes while preserving the amateur nature of college athletics, it is reasonable to expect that some form of NIL rights compensation regulation is coming on a larger scale. With athletes able to receive NIL rights compensation, brands should be prepared for new endorsements or sponsorship deals. The world of college sports remains an interesting area to watch.

This article is based, in large part, on an article written by Jennifer Vliet and Quincy Wolff during their time participating in Katten’s 2020 Summer Associate Program. The project was supervised by Chicago Intellectual Property partner Jeffrey Wakolbinger and New York Litigation associate Zachary Beal. The content has been updated to reflect ongoing developments. Jennifer and Quincy will be joining Katten as new associates upon their graduation from law school.

(1) NCAA Bylaws, Article 12.01.1 (2020) available at https://www.ncaapublications.com/productdownloads/D110.pdf.

(2) Id. § 12.02.11

(3) Id. § 12.1.2.

(4) O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1055 (9th Cir. 2015).

(5) Id.

(6) Id.

(7) Id. at 1057, 1070.

(8) Id. at 1052–53.

(9) Id. at 1076–77.

(10) Id. at 1079.

(11) In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. 958 F.3d 1239, 1244–45 (9th Cir. 2020).

(12) Id. at 1247.

(13) Id. at 1251–52.

(14) Id at 1258–59.

(15) Id at 1254.

(16) Id. at 1257–58.

(17) Id. at 1255.

(18) Id at 1265–66 (quoting O’Bannon, 802 F.3d at 1079).

(19) Fla. Stat. § 1006.74.

(20) See, e.g., Id. § 1006.74(2)(h); Cal. Educ. Code § 67456(e)(1).

(21) See Division 1 Council tables proposals on name, image, likeness and transfers, Jan. 11, 2021, available at https:// www.ncaa.org/about/resources/media-center/news/ division-i-council-tables-proposals-name-image-likeness-and-transfers.

(22) Sarah E. Needleman & Laine Higgins, EA to Return to College Football Arena, Wall St. J., Feb. 2, 2021, at B8

ARTICLE BY Jeffrey A. Wakolbinger of Katten

For more, visit the NLR Entertainment, Art & Sports section.

Five Tips for Enhancing Your Virtual Proceedings

In 2020, you learned to provide advocacy for your clients outside of the courtroom through use of online platforms. Conducting virtual trials and arbitrations has now become a common procedure. If you are looking for ways to improve the quality of your online proceeding, I have five pieces of advice to offer you.

1. Check Your Setup.

You don’t want any tech mishaps during your virtual proceeding. Take the time to prepare your setup so that everything goes off without a hitch. You will want an external monitor—or two—connected to your laptop. Use one screen to see all the participants and the other screen to show exhibits displayed on the screen share. A quality webcam is a must-have, ideally one with 1080p resolution. You will need clear audio too, and I recommend either headphones embedded with a microphone or a USB microphone attached to your computer. If you’re able to work from an office, turn a conference room into your “presentation room.” Set up a dedicated videoconference computer with a simple backdrop and have everyone examine witnesses there. Finally, a week or two before your proceedings begin, test out your equipment and software, and make sure all the features work for every party in the proceeding.

2. Get a Host.

If you want the smoothest virtual proceeding, you’ll need a host. Most courts have a host for online proceedings, but for arbitrations, the parties may need to find their own. All parties should agree on one neutral vendor to act as host. The host will then assign a technician to focus on connectivity, security, technical troubleshooting, and ensuring everything flows well. Having this agreement in place will alleviate virtually all of your potential technical problems.

3. Use a Hot Seat Operator.

As with an in-person hearing, a hot seat operator is vital when proceedings are virtual. The host and hot seat operator should not be the same person. This way, the hot seat operator can focus on pulling up exhibits, showing demonstratives, and running video clips, instead of on troubleshooting connectivity. You don’t need the hot seat operator with you physically in order to present evidence. Last year, I worked on a virtual arbitration; the host was in Florida, the attorneys were in Europe, and I was in the hot seat, presenting evidence from California—and it all worked perfectly.

4. Pick a Platform.

There are many video conference platforms available. Most courts are using Zoom, Webex, or Skype. However, if you are planning a virtual arbitration, you will likely have a choice. After using a number of platforms, my personal preference is Zoom. It is the industry standard, and for a good reason. It has a user-friendly interface and easy screen-sharing capabilities. Zoom is also highly secure. It has 256-bit TLS (Transport Layer Security) encryption, and all shared content can be encrypted. With these security measures, along with a meeting password and the waiting room enabled, you will have a secure meeting.

5. Focus on Details.

Practice makes perfect for a virtual proceeding. Examining witnesses over a virtual platform is an art form, so make sure you rehearse over a videoconference. Additionally, it’s critical to be prepared, especially when you are operating in a remote setting. Set up a messaging service such as Slack or Microsoft Teams, so your whole team can easily communicate in writing while your arbitration is in session. You don’t want messages popping up all the time when you are sharing your screen, so make sure you’ve turned off notifications or consider using a separate laptop for messaging with your team. Be prepared by making backups of all your important documents and have a backup laptop and a backup Wi-Fi provider, such as a cellular hot spot, in case the internet goes out while you’re in session.

Conducting your proceedings over a virtual platform can offer you so many benefits. First, it allows you to continue to serve the needs of your clients despite court closures. Second, it is allows you forgo travel expenses and spend more time at home. Who doesn’t want more time and money? Most importantly, when you put in place an expert team and follow the tips I’ve provided, virtual proceedings offer you a way to vigorously and effectively advocate for your client.

ARTICLE BY Jeff Dahm of IMS ExpertServices

For more, visit the NLR Law Office Management section.

Virginia is for… Cannabis Lovers… in 2024?

While adult-use cannabis legalization has been gaining popular support across the country, many state legislatures have been slow to translate that support into legislative action. That is changing in Virginia. In 2020, Virginia decriminalized the simple possession (up to an ounce) of cannabis while providing a civil penalty up to $25. On February 5, 2021, the Virginia House and Senate took another significant step further when both passed bills approving adult-use cannabis legalization in Virginia. Senate Bill 1406 passed on a 23-15 vote. House Bill 2312 passed on a 55-42 vote.

There are differences in the bills that must be resolved in a conference committee. However, an adult-use legalization bill is likely to pass through conference and be sent for Governor Ralph Northam’s signature. Governor Northam has already stated his support for legalizing adult-use cannabis. With passage, Virginia would become the 16^th state to legalize recreational cannabis, but only the 3rd state to do so solely through the legislative process.

Key Rules and Penalties Found in Both Bills:

Adults who are 21 or older can possess up to one ounce of cannabis or an equivalent amount of cannabis product.
A household can cultivate up to two mature and two immature cannabis plants at their primary residence.
Possessing more than an ounce of cannabis remains punishable by a civil fine up to $25.
Possessing more than five pounds could result in up to 10 years in prison.
Possession on school grounds could result in up to 6 months in jail.
Bringing any cannabis into Virginia would be punishable by up to 1 year in jail.

Regulatory and Licensing Framework Found in Both Bills:

A Cannabis Control Authority, governed by a five-member board of directors, will be created to regulate the adult-use cannabis market.
Licensing priority will be given to social equity applicants.
A Cannabis Business Equity and Diversity Support Team will be created.
A Cannabis Public Health Advisory Council will be created to make public health recommendations.
Requirements for seed-to-sale tracking, packaging, and labeling, including state-created risk information and warning labels, are included.
A state tax of 21% would be levied at the point of sale. Localities could impose their own tax up to 3%.
Portions of the tax revenue would be earmarked for pre-K education for at-risk children and substance abuse treatment and prevention, among other things.

Both bills also provide automatic expungement of misdemeanor marijuana–related offenses and allow for petitions for expungement of marijuana-related felonies under certain circumstances.

The House and Senate bills differ in the role and scope of local government involvement. The Senate bill allows localities to ban cannabis stores by voter referenda.

Both bills set January 1, 2024 as the earliest date for beginning the retail sale of cannabis. As Virginia moves forward toward 2024, the regulatory framework will continue to grow in size and complexity at both the state and local levels.

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

For more, visit the NLR Biotech, Food, Drug section.

COVID-à manger: COVID-19 Takes a Bite out of French Lunch Traditions

The COVID-19 pandemic has changed dining habits across the world, as governments have shut down and restricted indoor and outdoor dining. Even where restrictions have eased, many avoid sit-down dining out of concern for COVID-19 exposure and rely on take-away for their restaurant meals. Clearly, the COVID-19 pandemic has limited dining options.

France, however, has decided to provide workers with a new, previously forbidden, dining option, although it remains to be seen how palatable it will be to French employees. The Labor Ministry has decreed that to contain the spread of COVID-19, French workers now may eat lunch at their desks, which prior to the pandemic, Article R.4428-19 of the French Labor Code prohibited.

Gathering around a table for lunch with friends and colleagues has been long-standing French tradition, reflecting the country’s customs, habits and tastes. The decree is intended to allow workers to return to the workplace and still limit the spread of COVID-19, by permitting them to lunch alone at their own workspace. Until now, employers that allowed employees to eat lunch at their desks were subject to a ﬁne, if caught, and employees who ate at their desks faced unspeciﬁed disciplinary action.

The French government has long been active in imposing regulations to prevent employers from exploiting their workers and in protecting workers’ rights, such as by imposing a 35-hour workweek, implementing the “right to disconnect” and mandating lunch hours. Workers have become accustomed to dining out for lunch, and traditionally consider this time away from their work stations as an opportunity to refresh their bodies and minds prior to returning to work for the afternoon. This simply is part of the French concept of maintaining a proper work-life balance.

While the French government continues to encourage remote work wherever possible, the new measure reflects the government’s effort to encourage businesses to reopen, where they can, with measures in place that will protect employees’ workplace health and safety. Allowing workers to eat lunch at their desks offers workers and their employers a safer dining option, though arguably at the expense of traditional French cultural norms. It is yet another example of how the COVID-19 pandemic has challenged, and changed, customary workplace standards.

ARTICLE BY Erika C. Collins and Ryan H. Hutzler of Epstein Becker & Green, P.C.

For more, visit the NLR Global law section.

Legal Industry News: Law Firm Awards, Lawyer Moves Across the Industry and Legal Marketing Updates and Opportunities

Law Firm Awards and Recognition

Womble Bond Dickinson was named a Best Place to Work for lesbian, gay, bisexual, transgender and queer workplace equality, earning a perfect score of 100 percent on the 2021 Corporate Equality Index (CEI) for the seventh year in a row. The CEI is a benchmarking survey administered by the Human Rights Campaign Foundation that measures LGBTQ workplace equality policies and practices.

“Diverse, inclusive workplaces are better equipped to serve 21st Century clients and compete in the global marketplace. It’s no coincidence that many of our clients also were named to the Corporate Equality Index,” said Merrick Benn, Co-Chair of the firm’s Diversity Committee. “Striving for equality and inclusivity is good business—and it’s also just the right thing to do.”

Perkins Coie also received a top rating of 100 percent from the CEI survey, earning them a spot on the Best Places to Work for LGBTQ Equality for the 13th year in a row. Additionally, the firm also achieved Mansfield 3.0 Certification Plus from Diversity Lab in 2020 for its commitment to recruit women, attorneys of color, LGBTQ+ attorneys, and attorneys with disabilities.

“We’re truly honored to be recognized by the Human Rights Campaign Foundation for our enduring LGBTQ+ initiatives and practices which are critical to the success of our inclusive workplace and culture for all our attorneys and staff,” said Genhi Givings Bailey, Perkins Coie’s chief diversity and inclusion officer. “While we know we have more work to do, we remain fiercely committed to building on our record of diversity and inclusion progress.”

Labor and employment law firm Fisher Phillips also achieved a top rating of 100 percent from the CEI survey and were included on the Best Places to Work for LGBTQ Equality list. Fisher Philips said that it ensures both domestic partner benefits and transgender-inclusive health care benefits, in addition to supporting national LGBTQ+ events such as Lavender Law.

“It is an honor to be recognized for our commitment to LGBTQ equality and inclusion,” said Roger Quillen, Chairman and Managing Partner of Fisher Phillips. “We continue to recruit, hire, develop, retain, and promote the best attorneys regardless of ethnicity, race, gender, religion, sexual orientation, disability, backgrounds, and viewpoints. As an employment firm, we operate under the belief that diversity and inclusion strengthens our ability to serve clients with an assortment of viewpoints and critical insights about the legal issues they are facing in the workplace.”

Ward and Smith launched its new staff internship program in January aimed at increasing diversity in staff positions, including positions such as paralegals, office service assistants and legal administrative assistants.

To launch the internship program, Ward and Smith partnered with Durham Tech, Pitt Community College, Hillside High School in Durham, South Central High School in Greenville and West Craven High School in New Bern.

“An essential part of maximizing our firm’s effectiveness is creating an environment that allows people of different backgrounds, views, and ideas to work together,” said Michael Christman, the firm’s Director of Human Resources. “We decided to be more strategic about our staff recruiting process by creating opportunities, like the staff internship program, to attract a broader range of talent.”

The Deals named Jenifer Smith, a partner and co-chair of the Emerging Growth and Venture Capital practice at DLA Piper, to its 2020 Top Women in Dealmaking list. Smith is one of 48 women on the list, which recognizes women attorneys that are shattering the glass ceiling in M&A sphere and making a difference in the corporate world.

In her practice, Smith focuses on strategic and corporate governance issues, compliance with securities laws and SEC disclosure requirements and serves as an outside corporate counsel to public and private companies.

Law Firm Moves

Gabriel Silva has joined Vinson & Elkins as a partner in New York. His practice focuses on M&A and private equity in the U.S., Latin America, Europe and Asia with a focus on the digital infrastructure sector. Silva is the fourth attorney with a specialization in Latin America to join the firm in New York over the past two years. Previously, Silva was a partner at Linklaters in New York and São Paulo.

“Gabriel is one of the leading young M&A partners in New York, with a strong blend of digital infrastructure, Latin America and general private equity experience,” said Keith Fullenweider, co-head of the firm’s Corporate Department. “His practice fits beautifully with our platform, including our leading infrastructure practice. We have also invested recently in adding experienced lawyers with strong connections and deal experience in Latin America, which Gabriel will certainly enhance.”

Silva earned his Brazilian law degree from Pontifcia Universidade Catlica de São Paulo, and a specialization degree in Brazilian Corporate Law from Fundao Getlio Vargas de São Paulo. He also has an LL.M. degree from Columbia Law School, where he was a Harlan Fiske Stone Scholar.

Arent Fox selected Partner Anthony V. Lupo as the fourth Chair in the firm’s 79-year history, succeeding Mark M. Katz as part of a planned transition. Lupo began his career at Arent Fox in 1995, serving on the Executive Committee since 2002, as co-leader of the Intellectual Property department, and as leader of the Fashion & Retail and Media & Entertainment industry groups.

“I have worked with Tony for more than 20 years, and his incredible enthusiasm for the work, the firm, and our clients is second to none,” said Cristina A. Carvalho, firmwide Managing Partner. “As our new Chair, he will bring his excellent business sense to clients in every industry we serve.”

Lathrop GPM named Kate Tompkins as the leader of the firm’s Intellectual Property Practice Group, marking the first time a business professional was selected for a top leadership role of a practice group at Lathrop GPM. Tompkins joined the group in 2015, helping grow the firm’s Boston office. She has over 25 years of professional services experience. Previously, she served as a Director of Practice Management.

“Kate’s expansive knowledge of our firm’s IP clients, partners, and processes makes her ideally situated to lead our Intellectual Property Practice Group,” said managing partner Cameron Garrison.

Katherine M. Katchen joined the Managed Care + Employee Benefits Litigation Group at the Philadelphia office of Robinson+Cole, bringing more than 20 years of litigation experience in the areas of managed care and insurance law.

Specifically, Katchen’s practice focuses on health insurers, managed care companies, and insurers and third-party administrators in state and federal actions around the country.

“We are pleased to welcome Kate, an experienced litigator, to our growing Philadelphia office,” said Stephen E. Goldman, Managing Partner, Robinson+Cole. “Her broad ranging litigation experience provides depth to our litigation capabilities in the Mid-Atlantic region, and her experience in managed care and employee benefits litigation will be a great complement to our existing vibrant practice. The addition of Kate is another step in the execution of our Strategic Plan of building on our strengths and expanding our capabilities in our major metropolitan geographies.”

Legal Marketing News and Opportunities

F2 Marketing released Legal Marketing Trends 2021, annual analysis of what Legal Marketers might expect over the next 12 months. While 2020 was a rollercoaster and predictions for 2021 are a fraught proposition, F2 Marketing provided insights from leaders and legal marketers across the industry, on topics such as Crisis Communications, Google’s Core Web Vitals updates, the rise of digital accessibility and the increasing importance and emphasis on meaningful diversity and inclusion. While 2020 was challenging in multiple ways for the legal industry, in many ways the pandemic accelerated the adoption of technologies in the legal industry, creating opportunities. For example, Jennifer Whittier, President ofContactEase points out that the transition to targeted, purposeful client communication necessary in 2020 creates an opportunity to “build a business case for CRM, reintroduce the need for targeted and strategic outreach, and increase engagement among lawyers and clients.”

Learn more here about the F2 Marketing Legal Marketing Trends 2021.

Good2BSocial recently announced the launch of its Good2BSocial Academy, designed to provide legal marketing and business development training for marketing, business development and communication professionals at law firms on demand. With the goal of enhancing the understanding of digital technologies in a law firm/legal marketing context, this course features multiple courses with webinars, podcasts and certifications. A unique learning dashboard provides access to the materials created by Good2BSocial over the years on topics ranging from online advertising to marketing automation to account-based marketing, and many more critical areas. Courses are helmed by industry experts, with real world lessons and built-in takeaways, all neatly organized on an easy to navigate site.

Guy Alvarez cites the positive feedback on their live Digital Marketing Certification course as an impetus to creating the Academy. He says, “It was a natural next step to create a robust, organized offering that is flexible and accessible to anyone who’s interested in taking their practice and career to the next level.”

Learn more about the Good2BSocial Academy at https://academy.good2bsocial.com

What’s New with the National Law Review

The National Law Review started off 2021 with a bang–after taking a minute to look over the details from 2020, we saw that our main website had over 25 million views over 2020, a 258% YOY increase from 2019 and 54 million impressions overall on all owned properties. Eilene Spear of the National Law Review, spoke with Guy Alvarez of Good2BSocial on the LegalMarketing 2.0 podcast about this uptick in traffic, you can listen to the interview for more details. Additionally, Eilene Spear and Guy Alvarez are teaming up to present a webinar on SEO Lessons Learned from The COVID-19 Pandemic, to extrapolate on some of the SEO takeaways from 2020. The webinar is complimentary, and will be held on February 16.

Building on this success, NLR staff members presented a three-part webinar series with McDougall Interactive, drawing out how to create an SEO strategy in 2021. Jennifer Schaller, Billy Thieme and Rachel Popa all contributed their expertise to the webinar series. In Part 1 Schaller focused on Content Marketing strategies for 2021. In part 2, Billy Thieme explained SEO principles and illuminated some of the most cirtical SEO strategies. Rachel Popa discussed best practices in Podcasting, and how to get the most out of a video series or a podcast.

That’s the news for now, but there is much more on the horizon.

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

For more, visit the NLR Law Office Management section.

Ransomware Incident Compromises Unemployment Claim Information of 1.6M in WA

It is being reported that the Office of the Washington State Auditor (SAO) is investigating a security incident, allegedly caused by a third-party vendor, that may have compromised the personal information of up to 1.6 million residents of the state of Washington who filed unemployment claims in 2020.

The SAO is investigating fraudulent unemployment claims filed in Washington in 2020 that reportedly cost the state up to $600 million. In completing the audit, the state utilized a third-party vendor, Accellion, to transmit computer files for the investigation.

According to the SAO, “during the week of January 25, 2021, Accellion confirmed that an unauthorized person gained access to SAO files by exploiting a vulnerability in Accellion’s file transfer service.” The SAO posted on its website that the unauthorized person “was able to exploit a software vulnerability in Accellion’s file transfer service and gain access to files that were being transferred using Accellion’s service,” which occurred in December 2020.

Data that may have been affected includes 1.6 million individuals’ claims made between January 1, 2020 and December 10, 2020, including claims made by state employees. The compromised information includes individuals’ names, Social Security numbers and/or drivers’ license or state ID numbers, bank information and place of employment. In addition, the personal information of some individuals whose information was held by the Department of Children, Youth and Families was also compromised.

What a terrible consequence for those who legitimately lost their job and filed for unemployment benefits. For those whose personal information was used to file a fraudulent unemployment claim, this news throws a massive amount of salt in the wound of being the victim of identity theft.

ARTICLE BY Linn F. Freedman of Robinson & Cole LLP

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

CCPA for Lawyers: Notice Of Collection Needed for Third-Party Subpoenas & Discovery Req?

CCPA Illogic: Do lawyers have to give notices of collection before sending out third party subpoenas?

A law firm may be considered a service provider under the CCPA to the extent that a written contract between the law firm and its client (e.g., an engagement letter) prohibits the law firm from using, retaining, and disclosing personal information except to the extent permitted by the client. As the CCPA only requires that a “business that collects a consumer’s personal information” provide a notice at collection,¹ if a law firm is a service provider it would not be required to provide a notice at collection to individuals from whom it is attempting to collect personal information.

If, on the other hand, a law firm is considered a business it is possible that it is exempt from the requirement to provide a notice at collection. Specifically, businesses are exempt from any obligations under the CCPA to the extent that they “restrict a business’s ability to . . . exercise or defend legal claims.”² A court might determine that requiring a law firm to provide a notice at collection restricts the law firm’s ability to exercise or defend legal claims on behalf of clients, or restricts clients ability to have their claims exercised or defended by the law firm.

Even if a law firm is not exempt from the obligation to provide a notice at collection, assuming that the target of the subpoena is a California consumer the subpoena itself may implicitly satisfy the obligation to provide a notice at collection. Specifically, a notice at collection should include the following information:

A list of the categories of personal information that will be collected;
The business or commercial purpose for which the information is being collected;
Information on how to opt-out of the sale of personal information (if information is being sold); and
Information on how to find the company’s complete privacy notice.³

A third party subpoena, by its nature, specifies the type of personal information that is being sought, and that the information will be used within the context of the identified litigation. While a subpoena does not specify how a recipient can opt out of the sale of their personal information, discovery and ethics rules prevent a law firm from attempting to sell personal information received in discovery. While most subpoenas do not specifically indicate how a subpoena recipient can find a copy of the law firm’s privacy notice, if a recipient is represented by counsel, it would be difficult to argue that their counsel would not know how to locate a law firm’s online privacy notice to the extent that one has been posted. The net result is that most, if not all, of the information required by a notice at collection may be contained within a subpoena.⁴

CCPA Illogic: Do lawyers have to give notices of collection before sending out discovery requests?

A law firm may be considered a service provider under the CCPA to the extent that a written contract between the law firm and its client (e.g., an engagement letter) prohibits the law firm from using, retaining, and disclosing personal information except to the extent permitted by the client. The CCPA only requires that a “business that collects a consumer’s personal information” provide a notice at collection.⁵ As a result, if a law firm is a service provider, it would not be required to provide a notice at collection to individuals from whom it is attempting to collect personal information.

If, on the other hand, a law firm is considered a business, it is possible that it is exempt from the requirement to provide a notice at collection. Specifically, businesses are exempt from any obligations under the CCPA to the extent that they “restrict a business’s ability to . . . exercise or defend legal claims.”⁶ A court might determine that requiring a law firm to provide a notice at collection restricts the law firm’s ability to exercise or defend legal claims on behalf of clients, or restricts clients ability to have their claims exercised or defended by the law firm.

Even if a law firm is not exempt from the obligation to provide a notice at collection, assuming that the opposing party is a California consumer a discovery request may implicitly satisfy the obligation to provide a notice at collection. Specifically, a notice at collection should include the following information:

A list of the categories of personal information that will be collected;
The business or commercial purpose for which the information is being collected;
Information on how to opt-out of the sale of personal information (if information is being sold); and
Information on how to find the company’s complete privacy notice.⁷

A discovery request (e.g., interrogatives, document requests, or a deposition request) specifies the type of personal information that is being sought, and implicit in the discovery request is that the information will be used within the context of the litigation. While a discovery request does not specify how an opposing party can opt out of the sale of their personal information, discovery and ethics rules often prevent a law firm from attempting to sell personal information received in discovery.⁸ While most discovery requests do not specifically indicate how an opposing party can find a law firm’s complete privacy notice, if an opposing party is represented by counsel it would be difficult to argue that opposing counsel would not know how to locate a law firm’s privacy notice to the extent that it is publicly posted online. The net result is that most, if not all, of the information required by a notice at collection may be contained in a discovery request itself.9

¹ Cal. Civ. Code 1798.100(b) (Oct. 2020) (emphasis added).
² Cal. Civ. Code 1798.145(a)(5).
³ CCPA Reg. 999.305(b)(1)-(4).
⁴ Note that as of January 1, 2023, a notice at collection would also need to include the “length of time” that the business intends to retain each category of personal information. Cal. Civ. Code 1798.100(a)(3). In the context of civil litigation, the length of time that information will be kept is often conveyed to the opposing party through other means such as a negotiated protective order that discusses the return or destruction of documents at the end of the litigation.

⁵ Cal. Civ. Code 1798.100(b) (Oct. 2020) (emphasis added).
⁶ Cal. Civ. Code 1798.145(a)(5).
⁷ CCPA Reg. 999.305(b)(1)-(4).
⁸ For example, ABA Model Rule of Professional Ethics 4.4(a) prohibits a lawyer from using any method of obtaining evidence that would “violate the legal rights” of a third party.
⁹ Note that as of January 1, 2023, a notice at collection would also need to include the “length of time” that the business intends to retain each category of personal information. Cal. Civ. Code 1798.100(a)(3). In the context of civil litigation, the length of time that information will be kept is often conveyed to the opposing party through other means such as a negotiated protective order that discusses the return or destruction of documents at the end of the litigation.

ARTICLE BY David A. Zetoony of Greenberg Traurig, LLP

For more, visit the NLR Law Office Management section

Expanded ACRA Protections

Pregnancy Discrimination Claims After SCOTUS Decision

Key Takeaways

Share this:

Like this:

Findings In the House Report

Recommendations From the House Report

Immediate Litigation Impact

Share this:

Like this:

Share this:

Like this:

Pre-Game Background and the O’Bannon Decision

Student Athletes Get a Rematch

Full Court Press: The Rulebook is Changing

Power Forward

Share this:

Like this:

1. Check Your Setup.

2. Get a Host.

3. Use a Hot Seat Operator.

4. Pick a Platform.

5. Focus on Details.

Share this:

Like this:

Key Rules and Penalties Found in Both Bills:

Regulatory and Licensing Framework Found in Both Bills:

Share this:

Like this:

Share this:

Like this:

Law Firm Moves

Legal Marketing News and Opportunities

What’s New with the National Law Review

Share this:

Like this:

Share this:

Like this:

CCPA Illogic: Do lawyers have to give notices of collection before sending out third party subpoenas?

CCPA Illogic: Do lawyers have to give notices of collection before sending out discovery requests?

Share this:

Like this: