Flexibility for Flex Accounts – Congress Provides New Relief to Employees

Under the Consolidated Appropriations Act, 2021 (H.R. 133)(the “Act”) (here), which was signed into law on December 27, 2020, new relief is available for employees who participate in health care flexible spending accounts and dependent care flexible spending accounts (“FSAs”).   While the Internal Revenue Service (“IRS”) issued limited relief for FSA participants in 2020 (here), that guidance only expanded opportunities to make mid-year elections.  It did not address the desire of so many employees to extend access to their unspent FSA balances beyond the 2020 plan year.

The changes under the Act are intended specifically to address this concern.  Importantly, the changes are optional.  Employers who implement these changes will likely experience higher costs due to reduced forfeitures and changes in plan administration.  Additionally, changes to health FSAa could adversely affect the participant’s eligibility to contribute (or receive contributions) to a health savings account.  Below is a summary of the changes affecting FSAs:

Larger Carryover Balances

Generally, amounts that remain in an FSA at the end of a plan year are forfeited and no longer accessible to the employee (i.e. the “use-it-or-lose it” rule).  With the elimination of many elective medical procedures, daycare closings, and at-home schooling during the pandemic, many FSA participants were unable to utilize their FSAs in 2020.

Under prior guidance issued by the IRS (here), plans may allow employees to carry over up to a specified dollar amount ($550 in 2021) of the year-end balance for use in the subsequent plan year. Pursuant to the Act, however, there is no dollar limit on the amount that participants may be permitted to carry over with respect to a plan year that ends in 2020 or 2021.  By allowing such a carryover, the employee will have access to the amount carried over to pay or reimburse covered expenses in a subsequent plan year.

Extended Grace Periods

As an alternative to a carryover feature, prior IRS guidance (here) allows a plan to provide for a grace period of up to 2.5 months following the end of the plan year to apply unused balances to covered expenses incurred during that period.  A plan is not permitted to have both a carryover feature and a grace period.  Accordingly, under this relief, a plan with a grace period for a plan year ending in 2020 or 2021 may extend such period for up to 12 months after the end of such plan year.  As with the carryover relief described above, this will allow the employee to apply the unused balances to the payment of covered expenses throughout the subsequent plan year.  Note, however, if the participant was planning on making contributions to a health savings account in 2021 or 2022, the extension of a grace period under a general flexible spending account will cause such participant to be ineligible to make (or receive) such contributions.  Accordingly, the employer will want to ensure that the account is re-characterized as a limited purpose FSA during the extended grace period.

More Permissible Election Changes

As a general rule, elections under an FSA are irrevocable during the year absent a permissible election change event.  As mentioned, the IRS issued guidance in 2020 to temporarily ease the application of these rules.  The Act further allows plans to be amended to permit eligible employees to make a prospective change to their 2021 plan year FSA elections even if there is no change in status event. This relief is particularly helpful for employees participating in calendar year FSA arrangements who did not have an opportunity to consider the effects of the Act’s changes before 2021 elections became final.

Extended Period for Health Care Reimbursements

Participation in a health FSA is generally required to terminate when the employee terminates employment, except to the extent the employee is eligible for and makes a timely election for continuation coverage.  On the contrary, coverage under a dependent care FSA is permitted to run through the end of the year in which such termination occurs (without an affirmative election by the employee).  Under the Act, a health FSA may allow a participant whose employment is terminated during calendar year 2020 or 2021 to continue to receive reimbursements through the end of the plan year in which such participation ceased (including any grace period, as may be extended in accordance with the Act).

Reimbursements for Aged-Out Dependents

An employee enrolled in a dependent care FSA may receive reimbursements of dependent care expenses for a child who has not attained age 13.  The Act, however, increases the age to 14 for those employees who elected coverage under a dependent care FSA during an enrollment period that ended on or before January 31, 2020 and have dependents that attained age 13 during the 2020 plan year.  Pursuant to this relief, an employee may receive reimbursements for expenses incurred for the remainder of the 2020 plan year and may use the balance in the 2021 plan year.

Plan Amendments

These changes are discretionary, but if any one or more of them is adopted, the employer must adopt a retroactive plan amendment not later than the last day of the first calendar year following the calendar year in which the amendment is first effective (i.e. for changes effective for calendar year plan year 2021, by December 31, 2022).

© 2020 Winstead PC.
ARTICLE BY Lori Oliphant of Winstead
For more, visit the NLR Labor & Employment section.

OSHA Issues Updated COVID-19 Guidance in Compliance with President Biden’s Executive Order

As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021.  As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard.  However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

  • Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator.  Many states did not require this and OSHA did not previously recommend employers purchase masks.
  • Provide a COVID-19 vaccine at no cost to eligible employees.
  • Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
  • Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
  • Provide guidance on screening and testing.
  • Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration.  James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis.  Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard.  While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

Jackson Lewis P.C. © 2020

ARTICLE BY Raymond Perez, II and Mary L. Bradley of Jackson Lewis P.C.
For more, visit the NLR Labor & Employment

Law Firm Billing: Five Ways To Ensure Your Clients Pay On Time

Billing clients is foundational to success at any law firm, but oftentimes lawyers struggle to receive payments on time, if at all. For an essential business function like getting paid, one would think it would be as simple as preparing an invoice and waiting for the payment to roll in. While yes, these two tasks encompass the general framework of legal billing, your firm is missing out on opportunities between these endpoints to maximize your payment efficiency. There are many steps your law firm can take to ensure you get paid on time, and it all starts long before you even interact with your client. Here are five ways to ensure your clients pay on time.

Provide concise and public communication on your billing policy

The first step your law firm should take it to establish consistent rates. Whether this be hourly billing rates by attorney, or flat fee billing rates by projects, present your rates in a format that anyone will be able to understand. Whichever route your firm chooses to take, the important part is to have an open and transparent conversation with your clients during your initial consultations about these billing structures. You can then follow this up by reiterating your rates in the Letter of Engagement you send to your clients, making sure to include clear and consistent messaging throughout about your billing terms, when payment is due, and details about whether interest will be applied to overdue invoices. This step may sound simple, but this straightforward task sets you up for success in a few ways:

  1. It proves to your client that you are transparent, and won’t haggle them on fees.
  2. It sets expectations for the client so they know exactly what they are paying for.
  3. It provides a clear roadmap for how much is due, and when.

Providing a thorough breakdown of what your billing policy looks like to your clients helps keep them comfortable and leaves them satisfied knowing that they will receive quality service from your firm. Remember, it’s all about setting up the foundation for trust.

Offer multiple payment options to clients

When it comes to paying for legal services, law firms can’t take a one size fits all approach. It’s no secret that legal services can be expensive, and just like purchasing a house or a car, if clients don’t have the option to pay the way they feel most comfortable, they may walk away and look somewhere else.

Find a payment structure that’s mutually beneficial

Of course, which payment options you provide will depend on the type of law you practice, but by laying out a few options for your clients other than the traditional billable hour, you will further your clients trust and confidence, and make them more comfortable when it comes to making that first timely payment. A few alternatives to standard hourly billing include:

Flat Fee Billing 

Charging your clients a flat fee for your services allows you to get paid in full, either up front or at the end of the project (pro tip: request payment up front to your trust account to eliminate missed payments for services rendered). This option is best if there is a specific type of case or project that your firm handles regularly, the fewer surprises the better. This option is convenient for clients as they only have to pay once and you won’t need to chase checks on a regular basis. One downside of charging a flat fee is missing out on extra payment if the matter takes longer than anticipated, so use your best judgement when choosing to accept flat fees.

Subscription or Evergreen Trust Replenishment Model

More and more firms are moving to a subscription model for ongoing projects or clients that want to engage them on a regular basis. Under this model you establish a monthly rate and charge the client on an ongoing basis before the work is performed via an evergreen trust deposit replenishment. For instance, on the 1st of each month you charge the client a flat, consistent rate via a deposit to your trust account. At the end of the month when those trust funds are earned fees, you can compliantly move them over from your trust account to your operating account.

This model gives clients open access to their attorney without the restrictions that hourly billing may present, however most clients will still want at least a basic invoice for services rendered at the end of each month for their records. Similar to flat fee billing, use your best judgement in establishing a monthly rate with your client: some months you may work more than you anticipated while others you need to perform less work for that particular client.

Unbundled Services 

Unbundled services, or limited scope, simply means that you are offering your clients a choice of services rather than a full package. If your clients can easily pay you for smaller tasks like legal research or document drafting without having to pay for unnecessary services included in a full-scope fee, they are more likely to agree to your terms expeditiously. If you decide to offer unbundled services to your clients, you can do so via a flat fee to trust (up front) or operating (after services are rendered) or charge them on a more standard hourly basis.

Payment Plans

Many attorneys prefer to bill clients on a more traditional hourly basis. However, one of the main reasons hourly clients don’t pay their bills on time is because they can’t afford to pay the full cost of your bill in one payment. Luckily many firms have started allowing their clients to pay over time to help ease the burden of the cost of legal services. With payment plans, the firm decides the payment intervals (weekly, monthly, etc.) and the amount of each payment, and the client pays down their balance over time. It’s a great way to help reduce the burden to your clients while also ensuring that you’ll get paid in full on your bill eventually.

Level up by offering compliant online payment options

Allowing clients to pay by credit card or eCheck is no longer a nice to have, it’s standard operating procedure — especially in an increasingly digital world. Paying digitally is not only expected by today’s clients, but it makes your firm more efficient by accepting those payments faster. However, firms should use caution in selecting an online payment provider to ensure that the processor they choose is compliant with local, state and ABA rules for payment processing. We get into simplifying the digital payment process more below, but first you need to make sure your invoices are accurate.

Track time as you work

Now that your clients have read through your billing process, selected the payment option that works best for them, and entered into an agreement for your services — it’s now your responsibility to be as transparent with them as possible about the time you spend on their behalf. Not only will accurate time tracking provide peace-of-mind to your clients, it will actually yield you more money. According to the American Bar Association, attorneys that wait to capture their time at the end of each week can lose as much as 50% of their billable hours.  Being diligent about your timekeeping can be challenging, but the easiest way to stay on top of it is to record your time as it happens using a practice management tool like PracticePanther.

Having a clear picture into how much time was spent where, with detailed notes about relevant tasks, will help settle any disputes your client may have around the overall price. Remember — they’ve already agreed to your set rate from your detailed pricing, so the better time tracking you have in place, the harder it will be for them to decline payment or request a discount.

Keep clients up to date

Sending your clients regular status updates about upcoming payment deadlines, missed or late payments, or any late fees that are accruing for overdue invoices is crucial to getting paid timely and collecting in full on your invoice. With practice management software, these tasks can even be automated with workflows, meaning you’re providing real value without having to manually send messages.

Regular and transparent communication with your clients keeps your firm top-of-mind, and ensures that a request for payment doesn’t slip into the junk inbox or is deleted entirely.

Make payments convenient (and make your clients happier)

Your firm was transparent and locked in billing terms from day one, your clients understand when to expect your bill, and your communication with them has been consistent and ongoing. You provided a tremendous service to your client, you captured time contemporaneously, and your invoice has been prepared with meticulous detail. You’ve got one last hurdle to overcome before your money is in the bank — actually getting paid. The easier you make this process, the more likely you are to get paid quickly and collect 100% on your billed time.

With PracticePanther, this crucial step is now as easy as providing your law firm’s universal OneLink directly on your website or embedded in your email signature line. By placing your OneLink where it can be easily found online or in your emails, you can now begin to receive payment with just the click of a link.

OneLink is your firm’s secret weapon when it comes to getting paid, a link that is unique to your firm, yet can be given to all of your clients to make a quick and compliant payment. Let’s look at how OneLink can be used with a few of those payment options described above:

  • Hourly Billing: Embed your OneLink in an email when you send your clients an invoice with the breakdown and explanation of your hours. Try embedding it in your personal email signature, or those of your billing or accounting staff as well.
  • Flat Fee: Include your OneLink early on in your conversation along with your Letter of Engagement and retainer request to allow your client to make a compliant one-time payment to your trust account. OneLink will then automatically create or update any existing contacts you have within PracticePanther — reducing data entry steps for you and streamlining the overall collection process for both parties.
  • Subscription or Trust Replenishment: Easily send your OneLink on an ongoing cadence to your client whenever fees are due.

In each instance, your clients will be at ease using OneLink — it’s just like checking out at any other online retailer. All they have to do is click OneLink wherever you’ve placed it and enter their payment information, the rest is taken care of. Clients don’t need to create an account and they don’t need to fill out any extra paperwork — it’s the fastest way to compliantly receive payments to date.

Making your legal payments process as convenient and comfortable as checking out at an online retailer will ensure that your clients pay on time, every time.

© Copyright 2020 PracticePanther

ARTICLE BY Dan Bowman of PracticePanther

For more, visit the NLR Law Office Management section.

2020 IP Law Year in Review: Patents

Executive Summary

In 2020, the US Supreme Court and Court of Appeals for the Federal Circuit continued to refine key aspects of intellectual property law on issues that will have an impact on litigation, patent prosecution and business strategy. This Special Report discusses some of the most important decisions.

The Federal Circuit issued several panel decisions clarifying the bounds of patent-eligible subject matter in the area of life sciences and computer technology. In the life sciences space, the court found several patents satisfied the conditions for patent eligibility. For example, the Federal Circuit found patent-eligible claims directed to preparing a fraction of cell-free DNA enriched in fetal DNA, claims directed to a method of operating a flow cytometry apparatus with a number of detectors to analyze at least two populations of particles in the same sample to be patent eligible, and claims directed to a method of treating type 2 diabetes mellitus using a DPP-IV inhibitor. In the area of computer technology, the court clarified that claims directed to an improvement to computer networks were patent eligible, but that claims directed to applying longstanding commercial practices to generic computer components remain ineligible. Given the uncertainty of patent eligibility law, questions surrounding life sciences and computer-related technology will continue to be raised in cases.

The Supreme Court issued one decision in 2020, in which it found that the Patent Trial and Appeal Board’s application of the time bar for filing a petition for inter partes review (IPR) is not appealable. The Federal Circuit issued two en banc decisions, including one decision confirming discussing the use of the phrase “consisting essentially of” in patent claims and patent eligibility of mechanical inventions.

Following on the heels of the Supreme Court’s 2017 TC Heartland v. Kraft Foods decision addressing patent venue, the Federal Circuit addressed patent venue in Hatch-Waxman litigation. The court explained that for the purposes of determining venue, infringement occurs only in judicial districts where actions related to the submission of an abbreviated new drug application (ANDA) occur, and not in all locations where future distribution of the generic products specified in the ANDA is contemplated. This ruling may have far-reaching consequences, including the ability for ANDA defendants to effectively control venue for litigation.

Patents

  1. § 101 Decisions in 2020
  2. 2020 at the Supreme Court
  3. Arthrex Decision
  4. En Banc at the Federal Circuit – Two Contentious Denials
  5. The Federal Circuit Limits Venue for Hatch-Waxman Litigation

2021 Outlook

The Supreme Court is set to hear at least two patent cases and one copyright case this term. In The United States of America v. Arthrex, Inc., the Court will consider whether PTAB judges are unconstitutionally appointed and the other addressing whether assignor estoppel and in Minerva Surgical, Inc. v. Hologic, Inc., et al., the Court will consider whether the doctrine of assignor estoppel bars an assignor from asserting invalidity of an assigned patent in district court. A decision is also expected in Google LLC v. Oracle America, Inc. on the issue of copyright ownership of application programming interfaces used in computer technology. We also expect to see many patent trials occurring toward the middle and end of 2021. The COVID-19 pandemic has created a backlog of cases that were set to be tried and parties are likely to face pressure from Court to narrow the issues to be tried. Judge Alan Albright has also made headlines and has attracted case to the filed in the US District Court for the Western District of Texas. We expect even more cases to be filed this year.

© 2020 McDermott Will & Emery

ARTICLE BY Amol Parikh, Cecilia Choy, Ph.D., Amy Mahan, PhD, Hala Mourad, Colin J. Stalter and Elizabeth Teter of
McDermott Will & Emery
For more, visit the NLR Intellectual Property 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

For more, visit the NLR Civil Rights section.

Plaintiff to Voluntarily Dismiss False Advertisement Lawsuit Against Frito Lays

Plaintiff, on behalf of a proposed class of buyers, and Defendant Frito Lays Inc., have asked a California District Court to voluntarily dismiss a false advertisement lawsuit that was filed in October 2020.

The complaint had alleged that Frito Lays’ potato crisps —sold under its “Ruffles” brand name and labeled as “Baked Lays Cheddar & Sour Cream Flavor” —were falsely advertised because they contained artificial diacetyl, which allegedly reinforced the sour cream flavor, but were not labeled as artificially flavored. On the contrary, Plaintiff had argued that the “Cheddar & Sour Cream Flavor” statement on the front label represented to consumers that the sour cream flavor was entirely naturally derived.

The complaint was very similar to a New York action against Frito Lays which we have previously covered. This action was voluntarily dismissed earlier this month according to court records.

The reason for the dropped suit, including the terms of any settlement between the parties, has not been disclosed. We have not yet seen a court decision address the merits of an artificial diacetyl flavoring lawsuit and will continue to monitor for any further developments in this area.

© 2020 Keller and Heckman LLP

ARTICLE BY Food and Drug Law at Keller and Heckman of Keller and Heckman LLP
For more, visit the NLR Litigation / Trial Practice section.

7 Keys to Selecting the Best Corporate Intelligence Firm

When you need to conduct a corporate investigation or gather intelligence in order to make a strategic business decision, you need to know that you are relying on complete and accurate information. There is no tolerance for uncertainty, and there is no room for error. If the information gathered is anything less than comprehensive, you will not have the insights you need; and, while you could get lucky, what was supposed to be an informed decision could end up doing more harm than good.

With this in mind, when you need to make an informed decision on a matter with significant business implications, you need to rely on the advice of experienced investigators and advisors. In short, your choice of corporate intelligence firms matters. So, how do you choose? Here are seven key factors to consider:

1. Professional Background and Corporate Intelligence Experience

While you are choosing a corporate intelligence firm, it is ultimately the people you choose that matter most. It is the firm’s personnel who will be investigating, gathering intelligence, and providing advice, so you need to know that these individuals have the background and experience required in order to assist your company effectively.

In most cases, companies will benefit greatly from choosing a corporate intelligence firm that employs former federal investigative agents—and ideally former federal investigative agents who spent decades in civil service. This includes not only former agents with the Federal Bureau of Investigation (FBI), but former agents with the U.S. Department of Justice (DOJ), the U.S. Postal Inspection Service (USPIS), and subject matter-specific agencies and departments such as the U.S. Department of Defense (DOD), the U.S. Drug Enforcement Administration (DEA), and the U.S. Department of Health and Human Services (DHHS). Working within these agencies in an investigative capacity offers extensive training and high-level experience, and this experience will often translate directly to the corporate intelligence sector.

Of course, there are differences between conducting a government investigation and proactively gathering corporate intelligence, so experience in the private sector is an important consideration as well. When choosing a corporate intelligence firm, you should feel free to inquire about the public and private experience of each of the individuals who will be assisting your company. There are plenty of corporate intelligence firms out there—some of which offer far more experience than others—and you should look until you find a firm with personnel who you believe have the knowledge and capabilities required to meet your company’s needs.

2. Experience in Your Company’s Specific Area of Need

In addition to general investigative and intelligence-gathering experience, it is also important to choose a firm with personnel who have experience in your company’s specific area of need. For example, conducting a routine compliance audit is a very different matter from investigating an employee’s allegations of harassment or discrimination. Likewise, investigating a possible data security breach is wholly unlike conducting an internal investigation in response to a federal target letter, civil investigative demand (CID), or subpoena.

Different investigative and intelligence-gathering needs call for different procedures, the implementation of different policies, and the utilization of different skill sets. As a result, when looking for a corporate intelligence firm, it is important to focus not only on experience in general, but experience in similar and related scenarios as well.

3. State-of-the-Art Technological Resources

In today’s world, the extraordinary amount of data that companies generate and utilize on a day-to-day basis adds a layer of complexity to corporate investigations that did not exist 20 years ago. When gathering data, it is necessary to rely on state-of-the-art technological resources that ensure both (i) comprehensive data gathering, and (ii) industry-standard (or better) data security. If any data or (any data resources) get overlooked, then not only could the investigation fail to provide necessary intelligence, but it could also potentially expose the company to greater risk as the result of failing to uncover a possible litigation threat or defense strategy.

A corporate intelligence firm should be able to quickly and seamlessly connect its technological resources with your company’s IT platform, and its personnel should be able to work with the senior members of your company’s IT department to quickly implement a systematic and effective data collection plan. Your company’s corporate intelligence firm should be able to work directly with your company’s IT, data storage, and data security vendors as well—all while maintaining strict confidentiality and absolutely preserving the integrity of your company’s sensitive and proprietary data.

4. Nationwide Capabilities

In many cases, it is difficult to tell exactly where a corporate investigation will lead. While some intelligence-gathering efforts (i.e. compliance audits) will remain entirely internal affairs, investigations spurred by government inquiries, third-party allegations, and possible data security breaches can lead to additional investigative needs and the potential for litigation across the country (if not around the world). As a result, when choosing a corporate intelligence firm, it is important to choose a firm that has nationwide capabilities. It should have sufficient personnel and technological resources to follow your company’s investigation wherever it may lead, and it should have a track record of efficiently handling corporate investigations on a nationwide scale.

Additionally, COVID-19 pandemic has changed the way that many companies do business. In some cases, these changes are likely to be permanent. In particular, the substantially increased prevalence of remote working and service delivery are likely here to stay. Not only does this mean that there will be additional challenges during the corporate investigative process, but it means that data (and paper files) will be spread across a much broader geographic area as well. This makes it imperative to choose a corporate intelligence firm with the capabilities required to quickly and effectively gather data, conduct interviews, and undertake other necessary investigative measures wherever it may be necessary to do so.

5. Preservation of the Attorney-Client Privilege

When preparing for a corporate investigation, it is important not to overlook the critical importance of preserving the attorney-client privilege. Without establishing the attorney-client privilege and ensuring that it covers the entirety of the investigation, any and all information uncovered through the investigative process could potentially become subject to disclosure during a government investigation or through discovery in civil litigation.

“When conducting a corporate investigation, it is imperative to preserve the attorney-client privilege. If your corporate intelligence firm is not able to do so, then the government or any counterparties in civil litigation may be entitled to access the data obtained during – and the records generated as the work product of – the investigation.” – Attorney Nick Oberheiden, Ph.D., Founder of Oberheiden P.C.

While some corporate intelligence firms work in conjunction with independent law firms, others utilize the services of in-house lawyers. The latter model not only streamlines the process and ensures that all individuals who are working on the investigation are able to efficiently work together, but it can also substantially reduce the costs involved. By engaging a corporate intelligence firm that can handle all aspects of your company’s investigative needs while also preserving the attorney-client privilege, you can ensure that your company is protecting its legal and financial interests to the fullest extent possible.

6. Relevant Subject Matter Knowledge

Earlier, we noted the importance of choosing a corporate intelligence firm with personnel who have specific experience with the type of inquiry that your company needs to conduct (i.e. a compliance audit, data security breach assessment, or pre-litigation internal investigation). In addition, it is important to choose a firm with personnel who have relevant subject matter as well. From data security to federal securities and antitrust law compliance, corporate intelligence needs can pertain to an extremely broad range of issues, and it is essential that the investigators and advisors working with your company are well-versed in the substantive issues at hand.

7. Support and Insights Beyond the Investigation

Finally, when choosing a corporate intelligence firm, you need to choose a firm that can provide support and insights beyond your company’s immediate investigative needs. Based on the intelligence that has been gathered (or that is likely to be gathered), what are your company’s next steps? If your company is facing a federal investigation or a potential lawsuit, what defensive measures are necessary, and how does this inform the investigative process? If the investigation reveals shortcomings in your company’s compliance policies and procedures, what additions or modifications are necessary? Depending upon the circumstances at hand, these are just a few of the numerous critical questions that may need to be answered.

When choosing a corporate intelligence firm, it is imperative to look beyond the firm’s investigative and intelligence-gathering capabilities to its ability to advise your company based upon the intelligence it gathers. The broader the firm’s capabilities – and the broader its investigators’, consultants’, and attorneys’ experience and subject matter knowledge – the more your company will be able to get out of the engagement. When a corporate investigation is necessary, cutting corners is not an option, and choosing a firm that cannot follow through on the intelligence it gathers can be a costly mistake.

Oberheiden P.C. © 2020
For more, visit the NLR Corporate & Business Organizations section.

President Biden Rescinds Muslim Travel Bans

On his first day in office, President Joseph Biden sought to end a series of discriminatory travel bans set forth by the previous administration.  President Biden focused his initial presidential actions on returning to this country’s tolerant and welcoming principles and values, the traditional American sentiment laid out in the inscription on the Statue of Liberty itself.  He did so by revoking one Executive Order and four Presidential Proclamations enacted by former President Trump that had controversially prevented certain individuals from entering the United States. The bans targeted individuals initially from primarily Muslim counties and in later proclamations, from largely African countries. The various bans included restrictions on entry for nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Nigeria, Burma/Myanmar, Eritrea, Kyrgyzstan, Sudan, Tanzania, North Korea and Venezuela.

President Biden’s Proclamation directs embassies and consulates to resume visa processing and clear the backlog created by these orders. The embassies and consulates are required to assess the number of visa applicants who were being considered for a waiver of restrictions and create a plan to adjudicate the pending visa applications. The Proclamation ensures that any individual whose immigrant petition was denied on the basis of these orders may have their application reconsidered and endeavors to ensure a plan where visa applicants are not prejudiced as a result of a previous visa denial due to the suspension or restriction of the proclamations. The Proclamation further mentions that the current administration will analyze screening and vetting procedures for all immigrant and nonimmigrant entry into the United States to determine recommendations to improve the current practices.

President Biden has clearly set a new tone, addressing these issues within hours of taking office. His actions provide hope for a more inclusive and thoughtful immigration system.

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

ARTICLE BY Danielle A. Porter of Mintz
For more, visit the NLR Election Law / Legislative News section.

A Glimpse Into Biden’s Immigration Policies: The U.S. Citizenship Act of 2021

On January 20, 2021, Joseph R. Biden, Jr. was sworn into office as the 46th president of the United States. With this change in administration, it is expected that sweeping policy reviews and changes will be forthcoming. The acts of a president over the first few days and weeks of the new administration are seen as an indicator of the priorities and the intentions of that new administration. The Biden administration is no different. President Biden has expressed his intention to pursue a host of policy and regulatory changes over the first 100 days of the administration.

In one of the first acts of the new administration, President Biden announced that he would be sending the U.S. Citizenship Act of 2021 to Congress as part of his plan to reform the U.S. immigration system. The goal of the legislation is to “modernize[] our immigration system,” prioritize family unity, “grow[] our economy,” and “ensur[e] that the United States remains a refuge for those fleeing persecution.” The bill proposes changes to reimagine diverse areas of immigration from employment- and family-based immigration to asylum, refugee, and other humanitarian protections, as well as border security.

Resetting the Tone of the Immigration System

The U.S. Citizenship Act of 2021 states that it is attempting to reset the tone of the immigration system by “restor[ing] humanity and American values to our immigration system.” The legislation proposes integral and substantial changes to immigration law starting at the highest level.

Over the past four years, the Trump administration produced numerous executive orders and regulations aimed at restricting immigration, some of which were viewed as discriminatory in nature. Most notably, one of President Donald Trump’s earliest executive orders, often referred to as the “Muslim ban,” was immediately rescinded through a separate presidential proclamation. Moving forward, by and through a provision of the U.S. Citizenship Act of 2021 termed the NO BAN Act, the Biden administration seeks to “prohibit[] discrimination based on religion and limit[] presidential authority to issue future bans.”

Further, the proposed bill seeks to continue to reset the tone of the immigration system in the United States through changes in the existing language of immigration laws and statutes. A long held point of linguistic contention has been the usage of the term “alien” in relation to foreign nationals and noncitizens throughout the Immigration and Nationality Act and its body of regulations. The U.S. Citizenship Act of 2021 proposes changing the term “alien” to “noncitizen” in all federal immigration laws.

Overhauling the Immigration System and Pathways to Citizenship

The U.S. Citizenship Act of 2021 seeks to reform major areas of the U.S. immigration system, including creating new pathways to citizenship for undocumented individuals  and individuals with temporary status, as well as increasing the efficiency of various employment-based immigrant processes.

Pathways to citizenship for undocumented individuals, Dreamers, TPS recipients

The proposed bill includes an eight-year pathway to citizenship for many living in the United States without legal status and who were physically present in the United States on January 1, 2021. This eight-year pathway has two phases. The first phase would grant temporary legal status, with the option to apply for permanent residency after five years. This phase would require applicants to clear background checks, pay taxes, and fulfill other requirements. The second phase would allow “green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics [to] apply to become citizens.”

Under the legislation, three groups that have been at the forefront of immigration legislation in the recent years, Dreamers, temporary protected status (TPS) recipients, and agricultural workers, could benefit from immediately qualifying for permanent residency. Many Dreamers, or individuals who arrived in the United States as children, have benefited from the Deferred Action for Childhood Arrivals (DACA) program enacted by President Barack Obama in 2012. The program provides temporary relief for Dreamers by providing a two-year work permit after meeting certain requirements. Similarly, TPS provides nationals from some countries affected by armed conflict or natural disaster temporary status and work authorization. These programs have been at the forefront of immigration and legislative agendas in recent years. The third group, agricultural workers, has been at the frontlines of the COVID-19 pandemic as essential workers.

Updating the family-based and humanitarian systems

The proposed bill seeks to “reform[] the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.” In line with the theme to restore the system, the legislation would “eliminate[] the so-called ‘3 and 10-year bars,’ and other provisions that keep families apart,” and support families “by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families.” Because of the per-country visa caps, historically there have been lengthy backlogs in green card availability. The proposed bill seeks to reduce these wait times and “allow[] immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.”

In terms of asylum, the proposed bill would “eliminate[] the one-year deadline for filing asylum claims and provide[] funding to reduce asylum application backlogs.” In addition, the legislation would “increase[] protections for U visa, T visa, and VAWA applicants,” as well as raise the cap on U visas, reserved for victims of crimes, from 10,000 to 30,000 per year.

Restructuring employment-based immigration

On the employment-based forefront, the proposed bill seeks to grow the U.S. economy by “clear[ing] employment-based visa backlogs, recaptur[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give[] the [U.S. Department of Homeland Security] the authority to adjust green cards based on macroeconomic conditions, and incentivize[] higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

The proposed bill would provide additional benefits and protections to dependents of foreign national workers. It would increase the opportunities for dependents of H-1B visa holders to obtain work authorization. This is an expansion of the current H-4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.

The U.S. Citizenship Act of 2021 includes additional protections for the family unit, which would prevent children from “aging out” of the system. Currently, children who turn 21 years old may no longer qualify for immigration benefits as a dependent of their parents’ permanent residency applications. The Child Status Protection Act currently provides some exceptions to permit children who turn 21 years old to continue to qualify for immigration benefits. The proposed bill would expand upon these protections.

Looking Forward

Although President Biden’s immigration proposal was introduced to Congress on the first day of his presidency, it likely will face a long road ahead. The proposed bill has been met with some early criticism, but the president and his allies hope to find common ground and move the legislation forward. As part of this common ground, the legislation would seek to increase border security by authorizing additional funding “to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry.”

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more, visit the NLR Immigration section.

Justice Amy Coney Barrett’s Potential Impact on the Supreme Court – President Biden’s Reaction

Justice Amy Coney Barrett was confirmed by the Senate to fill the Supreme Court seat left open by Justice Ruth Bader Ginsburg’s death by a vote of 52 to 48 on October 26, 2020.  Justice Barrett was sworn in on October 27.  Her confirmation was the first in 150 years to not include any votes from the party in the minority, in this case the Democrats, highlighting the polarized response to her candidacy as a Supreme Court Justice.

Justice Barrett served on the U.S. Court of Appeals for the Seventh Circuit after being confirmed in 2017. In addition to her position with the Seventh Circuit, Justice Barrett also served as a professor of law at her alma mater, Notre Dame Law School – a position she held since 2002 and up to her confirmation to the U.S. Court of Appeals for the Seventh Circuit.

The Supreme Court is already hearing oral arguments in key cases concerning healthcare and anti-discrimination laws and religious freedom, Justice Barrett’s background and previous rulings shed some light on how she could eventually rule on the Supreme Court.

How Justice Barrett’s Confirmation Could Impact the Politics of the Court

The confirmation of Justice Barrett to the Supreme Court tipped the political leanings of the Court further to the right, with Republican appointees outnumbering Democratic ones by a 6-to-3-margin.

Justice Barrett clerked for late Supreme Court Justice Antonin Scalia from 1998 to 1999. Like Justice Scalia, she aligns herself with the legal philosophy of originalism – the idea that the Constitution should be given the original meaning it would have had at the time it became law. During her confirmation hearings, she answered a question from Judiciary Committee Chairman Senator Lindsey Graham about her views on originalism, saying:

“I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

Even though Justice Scalia was a mentor to Justice Barrett, she asserted in her confirmation hearings that with her confirmation Americans “would not be getting Justice Scalia, you would be getting Justice Barrett.” She also stressed that sometimes originalists don’t agree.

During her time as a Judge on the U.S. Circuit Court of Appeals for the Seventh Circuit, Justice Barrett voted conservatively over 80 percent of the time compared to other judges on the Seventh Circuit Court of Appeals, according to a study done by University of Virginia law professors Joshua Fischman and Kevin Cope cited by FiveThirtyEight that analyzed over 1,700 cases that were heard after her confirmation, including 378 that included rulings from Justice Barrett. Specifically, Justice Barrett voted conservatively 83.8 percent of the time in discrimination and labor cases, 87.9 percent conservative in criminal and habeas corpus cases and 83.2 percent conversative in civil rights cases.

However, Fischman told FiveThirtyEight that Justice Barrett is statistically indistinguishable from other conservative judges appointed by President Trump. Additionally, during her time as a judge on the Seventh Circuit, she didn’t always rule in line with other conservative judges, and ruled in a liberal direction 20 percent of the time when a Democratic nominee was on the panel, and 9 percent of the time when a fellow Republican nominee was on the panel,  according to the study.

“This is an attempt to establish a very strong Republican, conservative presence on the federal judiciary,” said Mark Graber, Maryland Carey Law professor and constitutional scholar on Justice Barrett’s confirmation in an interview with the National Law Review.

“That’s the great and terrible truth about this nomination: Judge Barrett holds far-right views well outside the American mainstream,” said Senate Minority Leader Chuck Schumer in response to Justice Barrett’s nomination. Specifically, Schumer highlighted Justice Barrett’s past criticism about previous rulings on the Affordable Care Act (ACA).

“We’re talking about the rights and freedoms of the American people. Their right to affordable health care. To make private medical decisions with their doctors …  Judge Amy Coney Barrett will decide whether all those rights will be sustained or curtailed for generations,” Schumer said.  “And based on her views on the issues—not her qualifications but her views on the issues—Judge Barrett puts every single one of those fundamental American rights at risk.”

While many on the left have expressed fears about a conservative majority on the Supreme Court, O. Carter Snead, a professor of law at the University of Notre Dame and one of Justice Barrett’s former colleagues for over 15 years, wrote that Democrats have “nothing to fear” from her in an op-ed published in the Washington Post.

“There is of course no way to know in advance how a Justice Barrett would rule on hot-button cases. What is clear is that she would carefully analyze each case on its merits, respectful of the stakes for both the rule of law and the stability of our polity, doing her level best to get the question right, regardless of her own personal views,” he said.

What Her Confirmation Could Mean for the ACA

When it comes to healthcare, Justice Barrett has been critical of past Supreme Court decisions on the ACA, writing in a 2017 article published by Notre Dame Law School that Chief Justice John Roberts’ opinions in previous ACA cases NFIB v. Sebelius and King v. Burwell “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Additionally, Justice Barrett said in an interview with NPR that the dissent had the better legal argument in King v. Burwell. However, Justice Barrett maintained in her confirmation hearing that she was not determined to overturn the ACA.

“I’m not here on a mission to destroy the Affordable Care Act,” she said.

Specifically, Justice Barrett seemed to suggest in her confirmation hearing that the ACA could survive without the individual mandate because of severability, or that there is a presumption on the Court’s part under judicial tradition to save an underlying law if part of it is struck down.

“The presumption is always in favor of severability,” Justice Barrett said in her hearing.

Supreme Court Oral Arguments in California v. Texas

On November 10, the Supreme Court heard oral arguments in California v. Texas, a case considering if Congress’ 2017 decision to reduce the penalty for the ACA’s individual mandate renders the law unconstitutional. The Court also considered if the challengers to the law have the legal right to sue.

During the arguments, Justice Barrett didn’t indicate whether she thought the ACA should stand, but did express misgivings about whether the penalty could be reduced to zero and still be considered a tax.

“Why can’t we say that when Congress zeroed out the tax, it was no longer a tax because it generated no revenue and, therefore, it could no longer be justified as a taxing power?” she asked.

Justice Brett Kavanaugh and Chief Justice Roberts argued that Congress’ 2017 decision to reduce the penalty for not purchasing health insurance did not indicate the desire to throw out the law in its entirety.

“I think it’s hard for you to argue that Congress intended the entire act to fall. The same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Chief Justice Roberts said. “I think, frankly, that they wanted the court to do that. But that’s not our job.”

“It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place,” Justice Kavanaugh said.

A decision is expected on California v. Texas in 2021.

What Could Come Next

In the weeks following Justice Barrett’s confirmation to the Supreme Court, much of the political response to the confirmation has revolved around the possibility of adding more justices to the Supreme Court to remedy its shift rightward, and to dampen fears that the Court  could undermine the incoming Biden Administration by legislating from the bench.

“The Court might be a little more conservative or the Court might be a little more liberal, but it turns out, through most of American history, the court is about as close to public opinion to the other branches as anything else,” Professor Graber said. “What I think people are worried about is [that] it shouldn’t be the mission of the Roberts Court to, in some sense, undermine the fundamental initiatives of a Biden administration.”

While the Constitution allows Congress to add and take away judges from the Supreme Court, it has not done so since 1869. In 1937, President Franklin D. Roosevelt supported adding more justices to the Supreme Court, but that proved to be unsuccessful.

President Joe Biden responded to Justice Barrett’s confirmation by stating he would assemble a commission of bipartisan constitutional scholars to determine what the next steps would be moving forward.

In an interview with 60 Minutes, President Biden said that “there’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”

President Biden said that after 180 days of the commission’s creation, he would expect recommendations from them on how to reform the court system.

When it comes to how Justice Barrett’s confirmation will affect the Supreme Court and the U.S. judicial system in the long term, only time will tell.

“Which type of judge is Barrett going to be? Is she going to be with Roberts? Or, is going to be with Thomas and Alito and say, ‘We control the court and we’re going to fight the Democrats tooth and nail?’ … We don’t really know yet,” Professor Graber said.

For more, visit the National Law Review Election Law / Legislative News section.

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