The National Law Forum

Eviction Moratoriums—A Light at the End of the Tunnel? It Depends

With increased cases of COVID 19, most industries are holding their breath as to how these cases will continue to affect their businesses. This is especially true for residential landlords. Since this past March there has been a mix of federal and state moratoriums restricting landlords from evicting tenants for non-payment of rent. The most recent moratorium on residential evictions was issued by the Centers for Disease Control and Prevention (CDC). The CDC’s order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” which took effect upon publication in the Federal Register on Sept. 4, declares a national moratorium on certain residential evictions in the name of protecting the public health. See 85 Fed.Reg. 55292 (Sept. 4, 2020).

The creation of Order established a protection for a certain category of tenants, so long as they executed a Declaration Form asserting their qualifications as a “covered person.” Once a tenant provides the declaration, the text of the order states that a landlord shall not “evict” the tenant from residential premises. See 85 Fed.Reg. at 55296.

While the CDC Order was issued to protect tenants, the ambiguities of the CDC moratorium have left the state courts to issue a patchwork of local Administrative Orders interpreting the moratorium and putting new process in place at the Magisterial District Court and Court of Common Pleas levels. The result? Unequal access by landlords to challenge the truthfulness of the CDC Declaration.

A review of the 67 judicial districts reveals a handful of counties that address the CDC moratorium and how it affects current landlord-tenant procedures. Additionally, certain counties provide remedies for landlords to challenge the truthfulness of the Declaration Form. By certain counties allowing landlords to challenge the truthfulness of the Declaration Form, it allows the moratorium to protect those truly defined as a “covered person.” A majority of the judicial districts however are silent as to the landlord’s ability to challenge the Declaration Form, thus leaving landlords frustrated in scenarios where the tenant may not truly be a covered person and are allowed to remain in their apartment with little to no consequence.

With the number of COVID-19 cases increasing and the lack of any additional economic stimulus packages available will the CDC Moratorium be further extended? If it is, will the state Courts address the inequitable remedies currently created amongst the local counties? Only time will tell.

ARTICLE BY Robyn Eisen of Strassburger McKenna Gutnick & Gefsky

For more articles on evictions, visit the National Law Review Real Estate section.

Pardon My Drone

If we think about drones, we probably think about remote controlled assassination machines manned by the Mossad or “fly-through” tours of the homes of the rich and famous. What we (or at least I) didn’t think about were artificially intelligent police drones that can be sent out by 911 dispatchers to the scene of the crime and follow the bad guys around until they do something they can be arrested for. At least four U.S. cities currently use these remotely-controlled – and self-controlled – investigation tools. No more out-of-shape cops trying to climb chain link fences in hot pursuit of more fit criminals! Hill Street Drones.

Drones use is now exploding in creativity. “Dehogifier” drones with heat sensors will tell you when wild hogs are destroying your crops. The Spotify Party Drone hovers over you in line at festivals to play your favorite songs. Russia and China are using drones disguised as birds.

Which started me thinking. Now that smart drones have utterly transformed warfare and policing, not to mention real estate, what’s next? I have ideas:

Gecko Cam: GEICO Insurance customers are astounded to see their rates increase after the insurance carrier famous for its British spokeslizard deploys smart drones to watch your driving habits. No word whether they will be disguised as pterodactyls or flying dragon lizards. GEICO’s got you covered.
The Daddy Drone: Helicopter parenting is so 2000. Just program the Daddy Drone with your daughter’s favorite haunts and voila! No need to prowl the neighborhood with your lights off or to wake up her BFF’s parents to cross-check her alibi. Integrate with Alexa or Siri and you can ground your kid from the comfort of your bed in a variety of celebrity voices!
Poli-Sci Fi: Did your favorite candidate just narrowly lose an election? Are you a civic-minded soul who just wants every legal vote counted (as long as it was for your candidate)? Well, no need to stand around all day in costume and argue with your neighbors; let your drone do the dirty work. Available in red, white and blue.
Karen Camera: Are you tired of enforcing the homeowner association rules from your minivan? Have you been assaulted by threatening bird watchers and need the proof before calling 911? Smile, you’re on Karen Camera!
The Gym Rat: Who didn’t wipe down the elliptical? Who left those wet towels all over the locker room? You did and we can prove it. Your gym membership just became a little more expensive. Feel the burn.

ARTICLE BY Philip P. Gura of Womble Bond Dickinson (US) LLP

For more articles on drones, visit the National Law Review Communications, Media & Internet section.

A Lawyer’s Guide to Enterprise Telecommunications Services Agreements—Part 1

This is the first entry of a two-part series on the services agreements that major enterprises enter into with telecommunications carriers to meet company-wide telecommunications requirements, providing connectivity between enterprise locations, and to cloud resources, suppliers and customers, public voice networks, and the World Wide Web. These agreements may encompass domestic services, services between the United States and other countries (international services), and services between foreign countries (foreign services), or some combination of these.

Enterprises typically acquire wireless services and wireline services under separate procurements and agreements. This series focuses on agreements for wireline voice and data services including Internet access services (“telecom services”).[1] This entry provides an overview of the procurement process and the business deal. The second entry highlights the agreement structure, an approach for counsel to assess business and legal terms, and conditions commonly found in telecom service agreements.

The Basics of Enterprise Telecom Services Procurements

A telecom services procurement is typically initiated to migrate to new or lower cost services, a significant change in telecommunications requirements (due to a major acquisition or geographic expansion), more favorable pricing, the desire to assess the capabilities of other carriers, or a combination of these. The agreements have a 3-5 year term, typically with one or more customer renewal options.

Telecom carriers are selected based on reliability, geographic reach of their networks, diversity of services, and price. Many enterprises rely on a primary carrier, sometimes with another carrier providing redundant service between major locations or to different regions, particularly for international and foreign services. This is true whether the enterprise is a technology firm, a major retailer (online or brick and mortar), a utility holding company, or is engaged in finance, payment processing, logistics, manufacturing, transportation, or energy production or distribution.

A threshold procurement question is whether the customer will rely solely on in-house procurement staff or retain telecommunications procurement consultants to execute the procurement. Engaging telecom procurement consultants may be the prudent approach for many enterprises, as these consultants likely have a better sense of market pricing and carriers’ current offerings and business objectives. Under either approach, a well-conceived RFP demonstrates there is a risk to the incumbent service provider(s) of losing the business and an opportunity for other carriers to win new business.

The in-house procurement team or consultants review current agreements and bills to determine usage, locations, and circuit mix for developing the demand set for the enterprise’s RFP. This is true whether the customer’s current network arrangement of services will be maintained or modified, including utilizing different services. A timely, thorough RFP facilitates an apple-to-apples comparison of responses from interested carriers.

Customer’s counsel should review the RFP, particularly if prepared by a consultant. It is preferable that legal terms and conditions consistent with the Company’s interests and practices be included in the RFP. Non-disclosure agreements (NDAs) protecting a customer’s data conveyed to a consultant and, subsequently, to the carriers receiving the RFP are appropriate.

The Business Deal

Telecommunications voice and data services, including Internet access services, are standard offerings that are available from multiple carriers. Services generally meet customer expectations. The principal variables are price, geographic reach of the carrier’s network, customer perceptions, and carrier responsiveness to shifting customer requirements.

In addition to Telecom Services, carriers offer managed services that may also be provided by third parties. Managed services include application routing (SD-WAN), monitoring and managing customer routers, and security, such as VPNs and firewalls. Managed services may be acquired with telecom services[2]. Conferencing services, such as Microsoft Teams and Zoom, are applications enabled by Internet access services and other data services.

Carriers have developed Service Level Agreements (SLAs) for their telecom services. SLAs are routinely elicited for services included in RFPs. We discuss SLAs at greater length in Part 2 of this series.

Apart from a handful of tariffed services, rates for Telecom Services are market-based, determined principally by the efficacy of the procurement process, the customer’s service mix and projected expenditures, and the extent of perceived competition. Many agreements provide for competitive pricing reviews that occur at defined intervals during the term of the agreement. Customers often retain consultants for these pricing reviews.

The efficacy of pricing reviews is one reason telecom services agreements may remain in effect for 10 years, through multiple amendments adding services and changing rates. Another is the challenges of transitioning services from one carrier to another, particularly for enterprises having hundreds of locations throughout the United States or in multiple countries.

There are two categories of rates and charges in Telecom Services Agreements: 1) one-time, non-recurring charges, principally service provisioning charges, and 2) recurring monthly rates, either fixed monthly or variable, usage-based (voice services) rates. Customers typically prefer that charges and rates be expressed in fixed dollar amounts as opposed to percentage discounts of rates in providers’ pricing schedules. Service providers regularly require minimum customer expenditure commitments. Customers prefer aggregate expenditure commitments that are either annual or for the term of the agreement, as opposed to service-specific commitments.

Fixed rate pricing and minimum commitments will be discussed further in Part 2 of this series.

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[1] In terms of regulation, Internet access services are classified as “information services.” In the United States and many developed countries, information services are subject to less regulation than “telecommunications services.” Another widely used data service, known as MPLS, is sometimes treated as information services. However, these services are universally included in telecom services procurements. For enterprise customers, a major distinction between information services and telecommunications services is the extent to which the respective service types are taxed and subject to regulatory surcharges.

[2] Managed services are not addressed in this two-part series.

ARTICLE BY C. Douglas Jarrett on Keller and Heckman LLP

Determining Fault When Unsafe Road Conditions Cause Accidents

While most car accidents are the result of driver negligence, there are also a number of crashes that happen each year because of bad roads and missing or incorrect signage. Recent numbers show that in Illinois alone, 57 percent of major local and state roads (in Peoria and Bloomington) are in poor condition, and statewide, 8 percent of bridges are structurally deficient. And those numbers don’t even include the numerous potholes, damaged signage, and other hazards drivers face on a daily basis.

What makes roads unsafe?

Safe Roads USA lists a number of unsafe road conditions that are likely to cause accidents. Among them are potholes, missing barriers and guardrails, missing or confusing signs, uncleared ice and snow, faded or poorly painted lines, and unannounced changes in the road surface (e.g., uneven lanes).

Factors like these can cause any number of issues for drivers that lead to accidents:

Confusion. Poorly maintained roads and signage can mislead drivers into actions they may have otherwise not taken. Someone driving on a highway with faded lines may unknowingly veer into the next lane and hit another vehicle, for example.
Panic. Confusion often causes panic, which in turn leads to impulse decisions behind the wheel. If a driver encounters an uncleared pile of snow in their path, they may swerve to avoid it without noting who is around them. If the road is busy, they could crash into another driver or, even worse, hit a cyclist or pedestrian.
Missed directions and warnings. Signage that is not clearly marked and maintained also causes accidents. The simplest illustration here is a missing stop sign. A driver that doesn’t know to stop at an intersection could hit another vehicle and cause serious harm.
Damaged property. Poorly kept roads can also damage the vehicles themselves. Potholes alone cost drivers an estimated $3 billion per year in the U.S. Driving a damaged vehicle around presents its own set of hazards and challenges.

Who is responsible when an accident happens?

If you have been in an accident and suspect faulty or poorly maintained roads to be the cause, one very important thing to keep in mind is that responsibility for those roads doesn’t fall solely to the Federal government. Ownership—and therefore maintenance and upkeep—of roads falls to different governing bodies, from the Federal government to state governments to cities and even private organizations. Given that, it is important to know who owns the road you were on at the time of your accident, which means you may have to do a little research. Start by going to your local courthouse to research property records.

Also note that because road ownership varies, the statute of limitations for filing a claim for an accident also differs from one governing body to the next, as well as what requirements need to be met by the injured party.

When should I seek an attorney?

Determining negligence and liability follows a specific set of steps, and while it’s always a complex process, it gets even trickier when dealing with municipal agencies and responsibility of road maintenance.

If you have been in an accident and suspect faulty roads or improper signage is to blame, it is best to seek an experienced attorney who can help you understand your situation and decide whether or not to press a case.

ARTICLE BY Clifford Law

For more articles on car accidents, visit the National Law Review Personal Injury section.

ICE COLD MOVE: US Government Warns of Cybercriminals Targeting Cold Supply Chain for COVID-19 Vaccine

No supply chain is immune from cyberattacks. This includes, unfortunately, in regards to the COVID-19 vaccine.

Yesterday the US Homeland Security Department issued a warning that a series of cyberattacks is underway aimed at the companies and government organizations that will be distributing coronavirus vaccines around the world. Specifically, the attacks target the COVID-19 cold chain (an integral part of delivering and storing a vaccine at safe temperatures).

The warning cautions that “[i]mpersonating a biomedical company, cyber actors are sending phishing and spearphishing emails to executives and global organizations involved in vaccine storage and transport to harvest account credentials. The emails have been posed as requests for quotations for participation in a vaccine program.” It is unclear at this time whether these attacks are for purposes of stealing the technology for keeping the vaccines refrigerated in transit or for sabotaging distribution of the vaccine.

Josh Corman, the chief strategist for healthcare at the US Cybersecurity and Infrastructure Security Agency (“CISA”) commented that this underscored the need for all “all organizations involved in vaccine storage and transport to harden attack surfaces, particularly in cold storage operation, and remain vigilant against all activity in this space.”

Although this warning was specific to the COVID cold supply chain, all organizations should take note as the core strategies utilized by cybercriminals cut across industries.

ARTICLE BY Kristin L. Bryan of Squire Patton Boggs (US) LLP

For more articles on cybercrime, visit the National Law Review Corporate & Business Organizations section.

What’s “So” Important: Computer Fraud and Abuse Act Gets a Close Look from SCOTUS

In a case with significant ramifications for employers concerned with protecting sensitive information, and for employees accused of abusing access to computer networks, the United States Supreme Court (“SCOTUS”) heard oral argument this week in Van Buren v. United States, No. 19-783, a case from the Court of Appeals for the Eleventh Circuit that will require interpretation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. The argument was lively. All of the Justices asked questions, and several expressed concern about vagueness in the CFAA’s definition of covered activity. Much of the discussion centered on an alleged “parade of horribles,” and on the meaning of the word “so.” We expect a relatively prompt decision. Time will tell what SCOTUS will decide, but we would not be surprised to see a reversal and remand.

The CFAA has been a useful litigation tool for employers when confidential or other sensitive information accessed via computer is misappropriated, misused, or otherwise compromised. The CFAA generally prohibits obtaining sensitive information from a computer without authorization, or by exceeding authorized access, and, importantly, confers federal jurisdiction. While it is a criminal statute, it also provides for a private right of action for those damaged by certain violations. The issue now before SCOTUS in Van Buren is whether the CFAA is violated when someone with authorized access obtains information for an unauthorized purpose. For example, when an employee who is authorized to access and use the employer’s computer-stored customer information for business purposes downloads the information to a thumb drive and shares it with a potential new employer, s/he plainly violates company policy. But does s/he run afoul of the CFAA? Over time, a Circuit split has developed regarding this issue.

Van Buren is a criminal case in which Petitioner Nathan Van Buren, a police sergeant in Cumming, Georgia, was convicted of violating the CFAA. The Eleventh Circuit affirmed his conviction and SCOTUS granted certiorari. Briefly stated, as part of his duties Van Buren was granted authorized access to a database containing license plate and vehicle registration information maintained by the Georgia Crime Information Center (“GCIC”). Training materials supplied to those with access to the GCIC database quite reasonably prohibit use of the database for personal purposes. However, in return for cash payments, Van Buren agreed to, and did, use his authorized GCIC username and password to access a woman’s license and registration information in order to learn personal information about her on behalf of another individual. There is no dispute that such use was not within the GCIC guidelines for authorized use. Accordingly, Van Buren used his authorized access to the GCIC database for an unauthorized purpose. He was charged with, among other things, violating the CFAA. He was convicted of the CFAA violation, sentenced to 18 months in prison, and he appealed. The Eleventh Circuit court upheld the conviction, holding, based on precedent within the Circuit, that the unauthorized use of authorized access does constitute a violation of the CFAA.

Because Van Buren was not an outsider or other unauthorized user hacking into the GCIC database, his conviction under the CFAA turns on application of the facts to the CFAA’s prohibition on “exceeding authorized access.” The CFAA defines “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. 1030(e)(6) (emphasis added). Generally, the First, Fifth, Seventh and Eleventh Circuits construe the definition broadly, finding CFAA violations against employees, for example, who access information they are entitled to obtain for certain purposes, but do so for unauthorized uses. In other words, courts in those Circuits tend to focus on the purposes of authorized access and require computer users to stay within those purposes in order to avoid violations of the CFAA. This interpretation would allow an employer to bring an action under the CFAA against an employee who, for example, misappropriates sensitive business information s/he was entitled to access as part of his or her job for use with a subsequent employer. The Second, Fourth and Ninth Circuits, on the other hand, favor a narrower interpretation, in which there is no violation unless the accessed information at issue is, itself, not information the user is entitled to obtain or access at all. Under that construction, an employee who obtains information from a database s/he is not otherwise permitted to use (e.g. restricted Human Resources information by someone not within the permitted sphere) would violate the CFAA while someone who misuses information s/he is otherwise entitled to access would not.

Van Buren is the first case to present the issue to SCOTUS. Petitioner, with robust amici support from organizations like Reporters Committee for Freedom of the Press, National Whistleblower Center and technology companies, largely focused his arguments on the dangers of a “parade of horribles” that could arise from the broader interpretation. (See, e.g., Oral Argument at 8). Petitioner posited that, for example, computer users who check Instagram on their work computers in violation of their employer’s computer use policies, or those who inflate their characteristics on a dating site, in violation of the stated terms of use of such sites, could be guilty of a federal crime should the Government choose to prosecute. (Oral Argument 4, 22). He argued that the CFAA is impermissibly vague and that any changes should be left to Congress.

The Government’s position that the CFAA should be broadly read was also supported by several amici, including the Electronic Privacy Information Center and the Digital Justice Foundation. The Government contended that, pursuant to the definition, a user “exceeds authorized access” by accessing information that s/he did not have a right to access in the particular manner or circumstances used. Thus, Van Buren violated the CFAA, according to the Government’s position, because he accessed the GCIC under circumstances other than for law enforcement purposes. As part of its argument, the Government closely examined the meaning of the word “so” in the definition of “exceeds authorized access,” and contended that a person is “entitled so” to do something only when s/he has a right to do it in the particular manner or circumstance authorized. Brief for the United States at 13. Van Buren, on the other hand, contended that “so” refers only to “access[ing] a computer with authorization” such that an individual does not “exceed authorized access” if entitled to access the database in question at all. (Oral Argument at 21).

The questions from the Justices during oral argument closely followed those competing themes, further discussing the proper construction of the word “so,” and examining whether some of the more innocuous-sounding activities would actually constitute violations of the CFAA under the broader construction. Some expressed concern about the privacy of the public if the CFAA is not construed to encompass, for example, government employees reviewing private information for purposes other than those called for in their jobs. Oral Argument at 14. Based on the overall tenor of the argument, SCOTUS may be prepared to agree with the more narrow interpretation currently favored by the Second, Fourth and Ninth Circuits, and to overturn Van Buren’s criminal conviction that turned on the broader interpretation. In any case, we will watch for a decision.

We observe use of the CFAA in civil cases to already be diminished in the last four years. Passage of the Defense of Trade Secrets provides access to federal courts in circumstances where the CFAA was used to create federal jurisdiction. And as explained above, use of the CFAA in such cases has been curtailed in several Circuits. It will be interesting to see whether the SCOTUS decision in Van Buren further restricts its utility.

ARTICLE BY Aime Dempsey of Epstein Becker & Green, P.C.

For more articles on computer fraud, visit the National Law Review Litigation / Trial Practice section.

COVID-19 Weekly Newsletter: Vaccine Progress Report

As countries in the Western Hemisphere prepare for the first shipments of vaccines, researchers continue to release new COVID-19 findings.

Vaccine News Galore!

U.K. Approves COVID-19 Vaccine, Ahead in the Western World: On December 2, the United Kingdom became the first country in the Western Hemisphere to approve a COVID-19 vaccine. Within days of the approval, 40 million doses of BioNTech/Pfizer’s two-dose vaccine were secured and will be distributed within days. Home care residents, health care workers, the elderly, and the medically vulnerable will be prioritized and get the two doses three weeks apart. The rest of the countries in the European Union (EU) could approve a vaccine for emergency use before the EU’s drug regulator, the European Medicines Agency (EMA), makes a decision, which is anticipated by December 29, but the European Commission has discouraged countries from doing so.
First Delivery of Pfizer Vaccine in the U.S. (Possibly) on December 15: The first shipment of the COVID-19 Pfizer vaccine for December 15 is contingent on the Food and Drug Administration’s Vaccines and Related Biological Products Advisory Committee’s (VRBPAC) decision to recommend FDA to issue an EUA for the vaccine. The group will meet December 10 to review Pfizer’s data and a week later, on December 17, will review Moderna’s vaccine data. The first shipment of Moderna’s vaccine, also contingent on the VRBPAC’s decision, could be on December 22. The United States could vaccinate 100 million people against the coronavirus by the end of February, according to Moncef Slaoui, chief scientific adviser to the Trump administration’s vaccine program, Operation Warp Speed.
Top Priority Groups for Vaccine Allocation Identified: Health Care Workers, Long-term Care Facility Residents: The Centers for Disease Control and Prevention’s (CDC) Advisory Committee on Immunization Practices (ACIP) held an emergency meeting on Tuesday to determine who should be prioritized for the first doses of the COVID-19 vaccine. Though the Advisory Committee voted 13-1 to recommend health care workers and long-term care residents as the first group of people to get vaccinated, ACIP will refine and finalize its full recommendations for vaccine distribution after FDA authorizes a vaccine. In order to address vaccine skepticism, the American Medical Association (AMA), American Hospital Association (AHA) and the Americans Nurses Association (ANA), the same day as the ACIP meeting, released an open letter asking the American public to trust the vaccine development process and to understand the importance of herd immunity.

COVID-19 Relief Package Talks Again

On December 1, a bipartisan group of lawmakers released a $908 billion proposal that included aid to states and localities, unemployment insurance, small businesses, the transportation industry, schools and colleges. On the same day, Federal Reserve Chair Jerome Powell and Treasury Secretary Steven Mnuchin testified at the Senate Banking Committee hearing. Powell warned against being guarded in the next relief package, because when Congress has not done enough during past recessions, the economy and people suffered. Last month, Mnuchin was under fire when he decided to terminate several federal emergency lending programs — a decision which is explicitly within the Treasury secretary’s authority, and which he argued was in adherence to the requirements of the Coronavirus Aid, Relief and Economic Security (CARES) Act passed in March — at the start of the pandemic. Senate Democrats also introduced a COVID-19 relief package this week, offering additional unemployment benefits and aid to the Pandemic Unemployment Assistance (PUA) Program of the CARES Act. The bill would ensure workers who have run out of regular state benefits or are receiving them under the federal PUA program would get an additional 26 weeks of aid. Today, House Speaker Nancy Pelosi (D-CA) indicated she and Senate Majority Leader Mitch McConnell (R-KY) are hopeful to pass a legislative vehicle that includes COVID relief and federal government funding, which is set to run out next Friday.

CDC Shortens COVID-19 Quarantine

The CDC issued new guidance that cuts quarantine time for people exposed to COVID-19 from 14 days to 10 days without a COVID-19 test and seven days if the person tested negative. Public health authorities have identified this as a harm reduction move that factors in the public’s resistance to restrictions and pandemic fatigue. Though CDC officials encourage the 14-day quarantine, they have given some flexibility considering occupational and financial pressures that play into someone’s ability to comply to restrictions. It also reflects the CDC’s desire that people quarantine for a shorter period of time rather than foregoing quarantine altogether.

More Than Half of COVID-19 Transmissions Are Caused by Asymptomatic or Pre-symptomatic Individuals

The latest CDC analysis indicates that the majority of COVID-19 transmissions are due to pre-symptomatic or asymptomatic individuals who “shed” the virus, e.g., in their breath, without even realizing that they are already infected — and infectious — and therefore dangerous to others around them. Earlier studies had already shown that people are contagious well before (three or more days before), as well as after the onset of symptoms, and that most symptoms usually develop 5-6 days after the infection. All these findings underscore the importance of masking and social distancing in minimizing risk of infection. They also reinforce the need to (self)-isolate after contact with individuals whose health status is uncertain, such as during travel.

Mechanical Ventilation Has Higher Risk of Complications if Patient Has COVID-19

Our bodies need oxygen to sustain life. When breathing is impaired and the oxygen level in the blood fall dangerously low — as could happen due to pneumonia, drug overdose or other problems — the situation further becomes life-threatening or even fatal if not addressed immediately. As a life-saving measure, mechanical ventilation can be used while the underlying root-cause problem is getting resolved (e.g., a bacterial pneumonia gets treated with antibiotics). To connect a mechanical ventilator to the patient’s respiratory tract, a plastic tube is inserted into patient’s airways through the trachea (windpipe). As with any procedure, mechanical ventilation carries some risk of complications, ranging from the effects of anesthesia to unintentional damage to the trachea. COVID-19 patients often do require mechanical ventilation, and unfortunately, the COVID-19 condition increases the incidence of long-term tracheal complications more than 20 times compared to matched controls (i.e., similar patients without COVID-19 who needed mechanical ventilation for other reasons). Some of the reasons behind this dramatic increase in the rate of complications have to do with the disturbances in natural blood coagulation processes, as well as the weakening of the normally-protective mucosal layers in the respiratory tract — which, in turn, is a consequence of the viral infection and high-dose long-term steroids often used as part of the COVID-19 treatment.

Timeline of a COVID-19 Illness

The CDC researchers, building on the growing accumulated knowledge about COVID-19 manifestations and treatments, are laying down the groundwork for characterizing and monitoring the various stages of a COVID-19 illness. Broadly speaking, three main phases can be identified: acute COVID-19 (lasting about a week), post-acute hyperinflammatory illness (lasting a couple of weeks), and late inflammatory and virological sequelae (beyond 3-4 weeks). Each phase has distinct clinical presentations and corresponding medical response. Overall, such a higher-level understanding of the COVID-19 picture is a pre-requisite for an optimal management of the disease in each individual patient as well as for the development of most effective public health measures.

COVID-19 Related Mortality Is Higher in the U.S. Than in 18 Other Countries

Per capita deaths from COVD-19 itself and excess deaths during the pandemic (relative to similar pre-pandemic periods) were lower in the U.S. compared to other countries in the first few months of 2020, but since June 2020, that index has been rising and now surpasses that of other countries’ multiple fold. Among reasons for this high toll could be inconsistent and de-centralized public health messaging and interventions.

SARS-CoV-2 Was Present in the U.S. by Mid-December 2019

CDC researchers analyzed blood donated to the American Red Cross between December 13, 2019 and January 17, 2020, and found evidence of SARS-CoV-2 antibodies in 84 samples. Those infections may have been missed at the time because — as is known by now — the SARS-CoV-2 infection causes only mild or no symptoms in about half the cases; and when symptoms do occur (e.g., headache, muscle ache, cough), they are easily mistaken for other illnesses unless a specific test for SARS-CoV-2 is performed. Previously, the first reported case of COVID-19 in the U.S. was dated January 20, 2020. New evidence suggests that the virus was present in the U.S. before that time.

ARTICLE BY James M. Vergis, Ph.D., Sarah-Lloyd Stevenson, Nisha K. Quasba, and Svetlana Lyapustina, Ph.D. of Faegre Drinker

For more articles on the COVID-19 vaccine, visit the National Law Review Coronavirus News section.

New U.K. Competition Unit to Focus on Facebook and Google, and Protecting News Publishers

You know your company has tremendous market power when an agency is created just to watch you.

That’s practically what has happened in the U.K. where the Competition and Markets Authority (CMA) has increased oversight of ad-driven digital platforms, namely Facebook and Google, by establishing a dedicated Digital Markets Unit (DMU). While it was created to enforce new laws to govern any platform that dominates their respective market, when the new unit starts operating in April 2021 Facebook and Google will get its full attention.

The CMA says the intention of the unit is to “give consumers more choice and control over their data, help small businesses thrive, and ensure news outlets are not forced out by their bigger rivals.” While acknowledging the “huge benefits” these platforms offer businesses and society, helping people stay in touch and share creative content, and helping companies advertise their services, the CMA noted the growing concern that the concentration of market power among so few companies is hurting growth in the tech sector, reducing innovation and “potentially” having negative effects on their individual and business customers.

The CMA said a new code and the DMU will help ensure that the platforms are not forcing unfair terms on businesses, specifically mentioning “news publishers” and the goal of “helping enhance the sustainability of high-quality online journalism and news publishing.”

The unit will have the power to suspend, block and reverse the companies’ decisions, order them to comply with the law, and fine them.

The devil will be in the details of what the new code will require, and questions remain about what specific conduct the DMU will target and what actions it will take. Will it require the companies to pay license fees to publishers for presenting previews of their content? Will the unit reduce the user data the companies may access, something that would threaten their ad revenue? Will Facebook and Google have to share data with competitors? We will learn more when the code is drafted and when the DMU begins work in April.

Once again a European nation has taken the lead on the global stage to control the downsides of technologies and platforms that have transformed how people communicate and get their news, and how companies reach them to promote their products. With the U.S. deadlocked on so many policy matters, change in the U.S. appears most likely to come as the result of litigation, such as the Department of Justice’s suit against Google, the FTC’s anticipated suit against Facebook, and private antitrust actions brought by companies and individuals.

Edited by Tom Hagy for MoginRubin LLP.

ARTICLE BY Mogin Rubin

For more articles on Google, visit the National Law Review Communications, Media & Internet section,

You Took a PPP Loan. Now Get Ready to Talk About It.

Late on Tuesday, December 1, The U.S. Small Business Administration released detailed information about the borrowers who received loans from the federal government’s $659 billion Paycheck Protection and Economic Injury Disaster Loans Program. The information released includes the names, precise amounts, addresses, industry codes, and lender information for the COVID-19 relief program’s roughly 5.2 million loans. The SBA had previously only released detailed information for loans above $150,000 and with dollar ranges rather than specified loan amounts. A searchable database is located here.

Did your company, or perhaps one of your clients, apply for and accept a business loan from the Paycheck Protection Program (PPP) established by the US Federal government’s Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to help certain businesses, self-employed workers, sole proprietors, nonprofit organizations and tribal businesses continue paying their workers ? If so, you must be prepared to answer questions about your acceptance of that loan if asked about it.

We have two former journalists on our staff. Thom Fladung, our managing partner, is the former managing editor of Detroit Free Press, The Plain Dealer and the Akron Beacon Journal. Before coming to Hennes Communications, Howard Fencl ran TV newsrooms for more than 20 years. Both agree that once the loan recipient information goes up on a searchable, public database, it will immediately become “low-hanging fruit,” with news editors sending reporters out to do follow-up stories about who took what, how much and why.

Frankly, we don’t have any problem with this disclosure. The SBA routinely makes public information about the dollars loaned to small businesses, so why should PPP dollars, disbursed from the U.S. Treasury Department, be any different?

What’s different this time is the sheer size of the PPP program and the fact that an extraordinary number of companies and professional service firms – and their clients – received these “forgivable loans,” in some cases worth multi-millions of dollars, as did a wide variety of schools and other organizations with large endowments.

While there are scores of reasons – all 100% legal and ethical – why a law firm or other organization took a PPP loan, crisis management specialists know that optics often overshadow facts. And it isn’t just reporters who will shine a spotlight on loan recipients. Social media activists may also seek to highlight businesses and organizations in the community that received the dollars – with a direct or implied demand for justification.

If your company or client’s business applied for and accepted PPP dollars in good faith, you must be prepared to defend the loan if questioned by the media or other stakeholders – without looking defensive.

As our good friend, Richard Levick, has said repeatedly, “Use peacetime wisely.” Levick recently suggested making sure you’re ready to answer such questions as:

Did you easily fall within the PPP guidelines or did you have to manipulate the rules to fit?
Exactly how was the money used?
Did you have access to other funds?
Specifically for schools, what has been your historic commitment to scholarships, diversity and economically disadvantaged students? What would the absence of PPP money mean for the future of these programs?
How do you currently support your community and the small businesses within it?

Levick further suggested that companies and organizations that come across more sympathetically in this equation will more easily deflect criticism than those who appear to have profited from this stimulus plan.

Now is the time to think about those optics, about how your partners, clients, employees, customers, friends – as well as traditional and social media outlets – are going to think when they find out how much you received.

We are not recommending spin. We’re talking, instead, of the exact opposite – transparency. If you took the dollars, we’re suggesting the creation of clear, succinct, direct messages and talking points that answer the questions most likely to be asked.

Additionally, once these questions are asked, you’ll probably have just minutes to provide an answer to reporters who are on deadline or social media speculation that will increase by the moment.

ARTICLE BY Bruce M. Hennes of Hennes Communications

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

Judge Rules Against Another Attempt by Trump to Restrict Legal Immigration

The courts dealt another blow to the Trump administration’s continued efforts to restrict immigration this week, providing relief for companies looking to fill and retain critical positions with foreign talent. On Tuesday, the US District Court for the Northern District of California issued an order setting aside the US Department of Homeland Security (DHS) interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the U.S. Department of Labor (DOL) interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

Last month the Northern District Court of California also issued a preliminary injunction of Presidential Proclamation 10052, which would have added restrictions on temporary visa issuance.

Following last month’s preliminary injunction of Presidential Proclamation 10052’s restrictions on temporary visa issuance, wherein the presiding judge stated that Pres. Donald Trump is not a monarch, the US District Court for the Northern District of California has issued another blow to the Trump Administration. The court issued an order Tuesday setting aside the US Department of Homeland Security (DHS) interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the U.S. Department of Labor (DOL) interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

The court found that the government failed to show good cause to excuse public notice and comment for the two rules. The court recognized the contributions of immigrants concluding:

The COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions imposed on businesses, large and small, during the pandemic; the consequences of those restrictions has been a fiscal calamity for many individuals. However, “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 567 U.S. 387, 416 (2012).

This is another victory for regulatory process compliance and supporters of employment-based immigration. The Plaintiffs, which include the Chamber of Commerce of the United States of America, National Association of Manufacturers, Bay Area Council, National Retail Federation, American Association of International Healthcare Recruitment, Presidents’ Alliance On Higher Education and Immigration; California Institute of Technology, Cornell University, The Board of Trustees of the Leland Stanford Junior University, University of Southern California, University of Rochester, University of Utah, and Arup Laboratories, filed a Complaint for Declaratory and Injunctive Relief from the DOL IFR effective Oct. 8 and the DHS IFR effective Dec. 7, claiming harm and prejudice to hundreds of thousands of American-based workers and disruption to US employers’ ability to hire and retain critical high-skilled talent. (Chamber of Commerce, et al., v. DHS, et al., 20-cv-07331-JSW, 10/19/20.) Due to inflated salary requirements, employers would be forced to sever relationships with existing foreign national professionals as well as be precluded from hiring and sponsoring new candidates for temporary work and immigrant visas.

In advance of the Nov. 23 hearing, the presiding judge, the Honorable Jeffrey S. White published specific questions to determine whether the Defendants, the DOL and DHS, properly relied upon the good cause exception to the notice and comment period that is required before a new federal regulation can be implemented. In the matter before the court, the Defendants took seven months to issue the IFRs that are the subject of this litigation, calling into question their claim that exigent circumstances precluded the need for a notice and comment period.

The DOL IFR at issue changed how prevailing wage levels are calculated resulting in higher wages at every wage level and occupation. Overnight, entry level wages jumped from the 17^th to the 45^th percentile. So, for example, the annual salary of $58,802 allocated to a mechanical engineer position in Charleston, South Carolina on Oct. 7 increased to $91,749 overnight.

The DHS IFR among other things: would have revised the regulatory definition of and standards for an H-1B specialty occupation; added definitions for “worksite” and “third-party worksite”; revised the definition of “US employer”; clarified how US Citizenship and Immigration Services (USCIS) will determine whether an “employer-employee relationship” exists between the sponsoring employer and worker; limited the validity period of third-party placements to one year; and codified USCIS’ H-1B site visit authority as well as the consequences of refusing such a visit.

The Defendants are expected to appeal the ruling, although any subsequent decisions may not occur until after the Presidential inauguration.

ARTICLE BY Jennifer Cory of Womble Bond Dickinson (US) LLP

For more articles on immigration, visit the National Law Review Immigration section.

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