The National Law Forum

Predictive Scheduling: An Expanding Trend Impacting the Food Service, Hospitality, and Retail Industries

On September 19, 2016,^[1] Seattle became the second local jurisdiction to enact a “predictive scheduling” or “secure scheduling”^[2] ordinance that allows the jurisdiction to restrict how retailers and restaurants schedule their employees. The federal Department of Labor is also analyzing whether existing wage and hour laws can be applied to address this issue and other state and local legislation similarly is being considered. These laws attempt to provide predictability to workers’ schedules by, among other matters, requiring employers to give workers two weeks’ notice of work schedules, pay employees for schedule changes or cancelled shifts, and provide predictability pay for on-call employees not called into work. These measures and proposals currently are targeted largely to the food service, hospitality, and retail industries, although in some jurisdictions the concept has been expanded to target all employers.

What is driving these often union-motivated legislative efforts? Businesses do not need the same number of workers on a consistent basis. Many businesses schedule workers weekly, and worker schedules may vary significantly from week to week. Some workers are on-call, with no schedule and no guarantee of shifts. Thus, the hours for which an employee is scheduled to work or that the employee actually works may increase or decrease substantially.

As a result, some workers complain that erratic scheduling practices:

Make it difficult to plan for family care, school, and other jobs;
Make it difficult to predict income;
Allow some employers to coerce employees to take unscheduled shifts; and
Do not give workers enough rest time between closing and opening shifts.

In addition to these general worker complaints, certain themes appear to be driving legislative efforts. These include:

The impact of scheduling on low income workers and caregivers;
The belief that part-time scheduling may be more burdensome for women than men;
An increase of nonunion workers who are not protected by collective bargaining; and
The belief that many part-time workers are “involuntary” part-timers.

What may be included in proposed legislation:

Two weeks’ notice of work schedules or notice to change in work schedules;
“Predictability pay” to employees for schedule changes, additional shifts, or cancelled shifts;
“Predictability pay” for on-call employees who are not called into work;
Requirement to offer additional hours to part-time employees before hiring additional employees;
Good faith estimate of hours at time of hire;
Right to request flexible work arrangements;
Some ordinances require the jurisdiction to accommodate workers’ other obligations and needs, such as school, caregiving, transportation or housing changes, or another job unless the employer has a “bona fide” reason not to grant such an accommodation;
Minimum hours before shifts;
Part-time employees’ hourly rate equal to that of full-time employees;
Part-time employees’ eligibility for the same paid and unpaid time off (prorated) as full-time employees;
Right to decline additional, unscheduled shifts with no adverse consequences;
Agency processes; and/or
Private rights of action.

This employee-friendly trend presents significant challenges to at least employers in the hospitality and retail industries where flexibility in scheduling is vital to business operations due to large numbers of part-time employees, high employee turnover rates, and constantly fluctuating customer demands, all of which can change month-to-month, week-to-week, or even day-to-day based on factors such as the weather, season, traffic or holidays. Imagine a venue where the work demands are based on whether a sports team makes the playoffs. Scheduling needs would not be anticipated in a timely way to give the notice required under this kind of legislation, but the game would still need to be staffed at a great cost to these businesses if these harsh laws go into effect. Many employers and industry groups have actively campaigned against these efforts arguing that such scheduling measures would unnecessarily burden their businesses by removing needed flexibility, increasing costs, and unreasonably interfering in relationships with employees — many of whom specifically entered the industry for the scheduling flexibility it provides.

New Scheduling Practices Take Hold

In November 2014, San Francisco became the first U.S. jurisdiction to pass predictive scheduling legislation, the “Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance,” implemented as part of the city’s larger “Retail Workers’ Bill of Rights” aimed at chain stores and restaurants. The ordinance applies to “Formula Retail Establishments” — chain stores with at least 40 locations worldwide and 20 or more employees (including corporate officers) in San Francisco. The expansive legislation requires that, among other things, employers give new workers written good faith estimates of their expected hours and schedules, provide two weeks’ advance notice to employees of their schedules, pay employees for schedule changes and cancelled on-call shifts, and offer extra hours to current part-time employees before hiring new employees or utilizing a staffing agency.

Not long after San Francisco’s Ordinance went into effect, the New York State Attorney General issued information request letters to 15 large retail chains regarding their respective scheduling practices. In September 2016, the New York City mayor promised to introduce a predictive scheduling proposal to the city council that would regulate scheduling practices for more than 65,000 New Yorkers employed by the city’s fast food chains. Under the mayor’s proposal, fast food restaurant chains would be required to set shifts for each employee at least two weeks in advance and prominently post the schedules. If an employer were to change a worker’s hours on short notice for any reason, the employee would be entitled to extra compensation. Washington, D.C. looked into predictive scheduling earlier in 2016, but the bill was tabled indefinitely in June.

Seattle’s Secure Scheduling Ordinance
Seattle became the latest city to pass predictive scheduling legislation with a unanimous vote on the Secure Scheduling Ordinance.^[3] The legislation extends to retail and fast food service establishments with more than 500 employees worldwide and full service restaurants with more than 500 employees and 40 full-service restaurant locations worldwide.^[4] The ordinance mirrors the San Francisco ordinance in many ways but imposes additional onerous requirements upon employers. The key provisions include:

A good faith estimate of workers’ hours must be provided to new and existing employees. The estimate must be updated annually or whenever it is subject to substantial change. While the estimate is not binding, the employer must initiate an interactive process with the employee to discuss any significant change from the good faith estimate and, if applicable, explain the bona fide business reason for the change.^[5]
Employers must give employees their schedules 14 days in advance.^[6] Employees have a right to decline any shift added to their schedule within the two-week notice period. If an employer alters the work schedule, it must timely notify the employee in person or by telephone, email, text, or similar means.^[7] Where an employer adds hours to an employee’s shift or changes the start or end time of a shift, the employee must be paid for one additional hour of “predictability pay.”^[8] If an employee is scheduled for a shift and sent home early or an on-call shift is cancelled, the employee must be paid for half of the hours not worked.^[9]
Employees have the right to request input into their schedule. An employee may make a scheduling request and the employer must engage in a timely, interactive process to discuss the request.^[10] The employer must have a “bona fide business reason” for denying requests related to an employee’s serious health condition, changes in transportation or housing, caregiving, education, or second job responsibilities or conflicts.^[11]
If the gap between a closing and opening shift is fewer than 10 hours, an employee is entitled to be paid time-and-a-half for the difference (addressing so-called “clopenings”).
If new additional hours become available, the “access to hours” measure requires that employers give notice and offer those hours to qualified current employees before hiring additional staff.^[12]

The Seattle ordinance also imposes notice and record-keeping requirements on employers and prohibits retaliation against employees who exercise their rights under its provisions. In addition to various penalties which may be imposed upon employers, any person (not just employees) aggrieved by an employer’s scheduling practices is provided with a private cause of action against the business.^[13]

The most significant and troubling difference between the Seattle ordinance and other predictive scheduling measures is the required interactive process for employee scheduling requests. This requirement undoubtedly will prove to be burdensome for employers. This process will be markedly different from the “interactive process” employers engage in with regard to requests for reasonable accommodation of a disability. Human resources personnel and managers will likely face scores of requests from multiple employees with minimal guidance as to how those competing requests should be handled. The ordinance requires that employers give preferential treatment to requests related to transportation and childcare needs, second jobs, or career-related educational or training courses. However, it is unclear how employers should prioritize competing employee requests for those “major life events.” Further, an employer’s ability to deny an accommodation request for such events is limited to the existence of “bona fide business reasons,” which are defined narrowly. The ordinance provides examples, for instance: “significant ability to meet customer needs,” an “insufficiency of work” during the shift requested, or a significant inability to reorganize work.

Pending Legislation

As the predictive scheduling movement continues to gain momentum, legislation is pending at the state level in California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, and Rhode Island, as well as on the federal level. These proposals are similar to those enacted in San Francisco and Seattle.

California

In February 2015, state legislators in California introduced the “Fair Schedule and Pay Equity Act.” The act would apply to food and general retail establishment employers with 500 or more California-based employees. The bill would require two weeks’ advance notice of schedules for employees with additional pay provided for changes within that period but would allow for an exception for changes to a schedule requested by a worker herself.

Connecticut

Only a week after the California bill was introduced, Connecticut’s “Act Concerning Predictable Scheduling” was proposed by legislators. The act would apply to all employers in the state, not just retail or food establishments. If passed, the bill would require 21 days advance notice of scheduled work hours and an hour of additional pay for each changed shift if the change is made more than 24 hours before an employee is scheduled to work. For changes made within that 24-hour time frame, the employee would be entitled to four hours of extra pay at the regular rate in addition to pay for hours worked.

Illinois

In March 2015, Illinois representatives followed Connecticut’s lead by introducing House Bill 3554, which would also apply to all employers doing business in the state. The bill would empower employees to request changes to their time on call, number of required hours or location of work, amount of notice given to employees for schedules and assignments and changes in hours. Employers would be required to engage with employees in a “good faith interactive process” to work through the requests and in the event of a denial, the employer would have to state the reason in writing and consider alternatives to employee proposals.

New York

While Mayor de Blasio has yet to present his proposal to the city, New York’s assembly and senate have had identical bills pending since early 2015. Both the assembly’s A3055 and senate’s S2414 would apply to all employers and, similar to Illinois’s bill, would provide employees with a forum to make requests for flexible working arrangements free from retaliation and with the requirement that their employer seriously consider their requests and provide a timely decision on the matter. An amendment to New York state labor law limiting on-call shifts was introduced as well but has since been withdrawn.

Oregon

Introduced in early 2015 and recently amended, House Bill 3337 and Senate Bill 888 would require employers to engage in an interactive process to respond to employee scheduling change requests. It would also go a step further than other proposed state legislation by mandating that requests made because of a worker’s second job, serious health condition, caregiving responsibilities, or participation in a training program would have to be granted unless the employer can provide a bona fide business reason for denial. The proposed bills also would require three weeks’ advance notice of work schedules with additional pay for schedule changes and prohibit employers from requiring employees to work nonscheduled shifts without their written consent, or even to require their employee to find a replacement for that shift. The bills would also limit the use of on-call shifts, providing the employee with a mandatory four hours of additional pay for any shift for which the worker is required to contact the employer or be available to be contacted by the employer at any time within 72 hours of the potential shift to determine whether they will be needed. Finally, the Oregon bills would eliminate “split shifts” or any schedule in which the employee would need to work one or more nonconsecutive shifts in a 24-hour period.

Tips for Employers

Employers, especially those in the retail and hospitality industries, should educate themselves about and prepare themselves for the legal and practical challenges that changes in the scheduling law will present to their businesses. Proactive employers will individually or through industry groups try to influence legislation before it is passed. And, when local jurisdictions adopt such measures, employers, such as those with operations in Seattle, will have to closely monitor developments including forthcoming implementing regulations.

Employers should consider aligning themselves against potential or already proposed legislation in the localities in which they do business and actively lobby decision-makers. Employers can find helpful resources for doing so in the “Restrictive Scheduling Toolkit” that the National Retail Federation has created for that purpose.

Additionally, employers in all industries should recognize that even if legislators do not take action on behalf of workers in their state, predictive scheduling can become an employee relations issue that labor activists may utilize as a call to unionization in an effort to achieve the same effect through collective bargaining. For this reason, a number of nationwide retailers have already chosen to phase out on-call scheduling in the wake of the publicity following New York’s Attorney General inquiry last year. While it is possible that no other attorneys general will follow that lead, retail and service industry employers should closely monitor developments to ensure their scheduling practices do not pose a risk of legal challenge. But, proactive employers will recognize that some jurisdictions may be quick to follow New York’s approach.

If you are in a jurisdiction that has adopted predictive scheduling, it is important to consult with legal counsel about compliance as these are new laws that are still developing and the uncertainties surrounding these issues will present compliance challenges.

ARTICLE BY April Boyer, Suzanne J. Thomas & Yamilet Hurtado of K & L Gates

_{[1] Seattle’s ordinance becomes effective on July 1, 2017.}

_{[2] Employers have referred to such measures by terms such as “restrictive scheduling,” signaling their discomfort with the terms of such legislation.}

_{[3] Seattle, Wash. Mun. Code ch. 14.22.}

_{[4] Id. ch. 14.22.020.A.}

_{[5] Id. ch. 14.22.025.}

_{[6] Id. ch. 14.22.040.}

_{[7] Id. ch. 14.22.045.}

_{[8] Id. ch. 14.22.050.A.1.}

_{[9] Id. ch. 14.22.050.A.2.}

_{[10] Id. ch. 14.22.030.}

_{[11] Id. ch. 14.22.030.B.2. A bona fide business reason is not required if the request is unrelated to a “major life event.” Id. ch. 14.22.030.B.1.}

_{[12] Id. ch. 14.22.055.}

_{[13] Id. ch. 14.22.125.}

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Legal Marketing: Finding Internal Champions and Other Blogging Strategies that Work

Does your law firm have one or more blogs? Chances are, one in four of you will nod yes. According to the most recent ABA Legal Technology Survey, about 26 percent of law firms currently have blogs, continuing a rising trend over the past few years. And of those lawyers who blog, an average of 40 percent have been able to attribute new clients as a result of that activity.

The ABA Journal wrote in April this year about an October 2015 LexisNexis survey concerning law firms and marketing. The survey indicated that “a majority of firms said they are planning to increase their investment in blogging and content marketing this year. According to LexisNexis, of the roughly 400 law firms that responded to the survey, 57 percent said they anticipated doing more blogging as a means of generating business.”

With all signs pointing to the fact that blogging is an effective element of a comprehensive business development strategy, what is holding your firm back?

Jacqueline Madarang, senior marketing technology manager at Bradley, provided many tips and recommendations for making the most of a law firm blog at the Legal Marketing Association Southeastern Chapter annual conference in September. She should know, since the firm has launched five blogs under her deliberate and effective guidance in the past two years.

“There are certain action items that must be done before we will even consider launching a new blog,” said Madarang. “We have a long checklist. It includes a lot of behind-the-scene commitments, such as that attorneys who request a blog have to seek their practice group leader’s approval and also meet with us. They must commit to writing at least two blog posts a month and they have to find at least two editors for the blog. They also are required to submit at least five blog posts before we will launch the blog, and we create a timeline on a calendar of blog development and content development that we follow.”

Find Your Internal Champion

“We have found that the attorney who requests to develop a blog becomes our internal champion in making the blog successful. After the practice group leader supports the effort, we have another champion. We work hard to earn their trust, we seek press and other coverage and awareness of the blog when it goes live, we show them results of their posts, we look to get their content repurposed through media interviews or published as bylined articles, and we always provide them with the support they need to keep it going,” said Madarang.

“We felt even greater success after large Fortune 100 companies (not clients, yet!) emailed our bloggers and complimented them when they were mentioned in our blogs; when Forbes reporters reached out directly to our attorneys because of a blog post; when reporters who followed cases our attorneys blog about asked about status of cases; and when we opened new matters from blog posts.”

“Our internal champions have become helpful advocates who have furthered our own PR within the firm about blogging and the successes we are having,” Madarang said.

Why Do a Blog?

Madarang poses this question to the attorneys to develop a strategy with defined goals and objectives. Some motivations include:

Build online visibility to help drive business development
Raise their profiles as thought leaders in the industry
Become a go-to resource in the area/industry
Boost their Google search engine ranking results

She said the firm’s marketing department has to complement and work cooperatively with the attorneys.

“They have to work together,” Madarang said. “The attorneys are the ones writing about the legal topic, but marketing provides the platform and provides all the marketing, social media and technical support.”

What Should I Write About?

“This is a frequent barrier for producing quality blog content,” noted Madarang. She offers these helpful tips for generating topics:

Write about topics you are passionate about. If you’re bored by it, your readers will be, too.
Talk to clients. What are they asking you about – what do they want to know?
Look at analytics. What are people searching for in the firm’s website, search engines and blogs?
Identify trending topics. Keep on top of current events and listen at conferences you attend.
Repurpose content. Repackage topics you are delivering in other formats, such as presentations.

Bradley Blogging Bootcamp

One of the most important pre-launch activities that Madarang has instituted at Bradley is required attendance to the Bradley Blogging Writing Bootcamp.

“During this bootcamp, we coach the attorneys on how to write an effective blog. We teach them to write to a specific audience and be more conversational, to find their own style,” said Madarang. “We coach them on how to craft titles, how to hook in a reader with an opening paragraph, how to make their blog posts more digestible and readable without any legalese, how to include the appropriate keywords and how to focus on the key issues. This has been an extremely successful approach that the attorneys have learned from and appreciate. They are committed and want the blog to be a hit, and we provide them with the tools and consistent strategies they need to help them.”

Post-Launch Activity

Once the blog launches, Madarang pays close attention to the results and fine-tunes with the attorneys as needed.

“We have several ways we extend the life of a blog post, whenever possible,” she said.

Her tactics include:

Measure success and show ROI. Look at the analytics and share with the bloggers to help them understand their performance. Create infographics to help them visualize how their results have translated into ROI.
Repurpose and reuse. Use blog posts for PR opportunities; publish on LinkedIn, JD Supra, National Law Review, Lexology and/or Mondaq; and share on social media.
Celebrate! Create fun awards for the attorneys with the most-read or most-shared posts or for those who wrote most often and opened new client matters as a result. Recognition is a motivator.

Developing and maintaining a law firm blog requires a deep commitment from the attorneys who are going to have to write regularly, as well as from the firm to support that effort from A to Z. Bradley’s blogs have become a well-read fixture under Madarang’s organized strategies, and these tips should provide aspiring law firm bloggers with a foundation for their own success.

ARTICLE BY Vivian Hood of Jaffe

Business Development for Attorneys w/ Barry Gardiner [PODCAST]

New Jersey tax lawyer Barry Gardiner has built his business from the ground up and provides other lawyers with tips and tools to build relationships and engage in effective business development for attorneys in this podcast with legal marketing guru John McDougall.

John McDougall: Hi, I’m John McDougall and welcome to the Legal Marketing Review Show on National Law Review. Today my guest is Barry Gardiner, founding partner of the Barry Gardiner Law Firm in New Jersey and New York. Welcome, Barry.

Barry Gardiner: Hi, how are you?

Getting Started as an Attorney

John: Yes, very good. How did you get started as an attorney?

Barry: How did I get started as an attorney? That’s a long story John. My senior year in college, my college roommate said to me, on a Monday or Tuesday, “What are you going to do after you graduate?” I said, “I have no idea.” He said, “Well, I’m taking the” — they called them the law boards in those days — “on Saturday morning. Why don’t you go?” So I went, and I took the boards, and I did well and eventually decided to go to law school and went to Rutgers Law School. After I graduated, I took a job with, believe it or not, a negligence firm in New Jersey where I tried a lot of negligence cases for about a year-and-a-half, which I really didn’t like because it was only a question of who went through the stop sign or who didn’t go through the red light and who did and everybody lied, and that was no fun.

I decided since I was a business major in college with the Bucknell University in Pennsylvania to go into tax law, which I decided I had an aptitude for and then something which I enjoyed. I decided to take a New York bar because that’s where all of the good tax work seemed to be with sophisticated companies, Fortune 500 companies, et cetera. What I did was I took a job with an accounting firm in their tax department for a year and enrolled in NYU Law School for a Masters in Taxation, which is one of the better law schools from that program in the country. I did that at night for three years, and then I took a job with a law firm in Manhattan and became a partner there after two or three years. We had about a 20 man tax firm; it was a tax boutique and we represented a lot of wealthy, high-net-worth individuals. A senior partner in our firm had a client who was a chairman of the board of that 10 or 12 interlocking public companies.

I began to do that kind of work and did a lot of public company work for these companies and their subsidiaries, which included everything — international transactions, mergers and acquisitions from a tax standpoint, planning everything, and I was a partner there for about 13 years. Then in the mid ‘90s, we had some downturns because of the economy and a couple of partners left and the firm started to fall apart a little bit. I decided to take my clients, and I had some at that point, not a lot but some, and start an individual practice of my own in Northern New Jersey which is where I lived.

John: About what year was that roughly?

Barry: ’92, around ’92 I’d say.

Branching Out into a Solo Practice

John: How did you learn to get your clients through that though? That sounds it’s a very daunting task, and you’re going out on your own.

Barry: It was a daunting task, and I had a daughter at that time who was starting college, and it was a little bit scary. But because of the nature of the tax work that I did, I had a number of relationships that I had established with CPA firms, life insurance agents who were selling insurance in connection with estate planning, which is something I was also doing and I basically took those connections that I had and built on those. I had several very strong relationships where I began to get most of their work. That’s basically the way I started my firm. It’s very unusual if you look around — whether it’s in New Jersey, in New York or wherever — for somebody who does the kind of work that I do, which is pretty highly sophisticated tax planning [work for corporations] as well as individuals who are out on their own. Most of the work, at the level that I do, is pretty much done by larger firms; anywhere from 50 to 100, or 300 lawyers where they have tax departments. But what happened was I began to work with these networking connections that I had and was able to build on those. Then what happens after several years, maybe three or four years, a lot of that work becomes sub-generating — in other words, through referrals and other clients who are coming in through your existing clients. At the same time, what I was doing was building additional relationships with other CPA firms, financial planners, and life insurance agencies. I had a number and still have a number of very good connections with MassMutual agencies, Security Mutual agencies, et cetera. That’s basically the way it got built.

Important Aspects of Legal Business Development

John: What would you say is the most important aspect of business development?

Barry: I think for somebody who’s in a smaller firm, I found that a lot of larger firms don’t do personal service and attention to their clients, which clients seem to resent substantially. I’ve always sort of made it a number one point to [offer personal service]. For example, if I get a telephone call from a client, and I can’t take it, I’ll always return that call at the end of the day. Or if the call comes in at the end of the day, by noon the next day, unless am tied up in meetings or something, and if I am, I’ll then have my secretary get back to the client and let them know, or let them tell us what’s a good time to get back to them, which clients appreciate.

It’s like if you go to a doctor, and you leave a message for the doctor, you don’t want to wait 24 hours or have to call the doctor back, you want him to call you back, because that basically shows that he cares. I want my clients to know that I care about them, rather than their just being a number, which many of them feel left out with these larger firms. Because all these larger firms have big clients, and in many cases, [they’re] smaller guy. When I say, ‘small,’ I’m not talking about a guy who is worth a small amount of money, but somebody in the relative scale who’s not worth what these big Fortune 500 companies are worth, or even wealthy clients who are worth $25 million and up. Everybody wants to feel important, and I’ve always tried to do that, whether the client is worth $100,000 or $50 million, it doesn’t matter. I don’t know if that answers your question.

How to Begin Building Client Relationships

John: Well, yes. It answers part of it. That’s a great way to build relationships and build on relationships with clients. What about first getting the client? How do you get relationships to begin with? Or how do you build relationships through networking or other ways that then turn into clients that you can then service with more attention to detail than a larger firm? How do you plan to see to get those new relationships?

Barry: Well, again, through other professionals, CPAs, financial planners, [and] other attorneys who don’t do this kind of work. I may call one, for example, in a matrimonial matter, or a commercial real estate matter, or litigation [matter] to basically get out there and meet people. I’m not one to join organizations like the Chamber of Commerce, or other organizations.

You are all here for the same reason, you are all here to get business, and that never really appealed to me. But I think the best client is a client who appreciates your work [and] who is going to give your name and number to a friend or a family member when they have a need, and they’re looking for somebody doing basically what you’re doing. Most of the clients I have are clients that I’ve kept for 15, 20, 25 years. I’ve lost very few clients. I actually, at this point have about 400 original wills, which I have at a safe deposit box at a Local Banking Institution, where I’m holding those wills for clients who may have copies which I’ve given them for their own reference.

John: Yes, that’s a great testament to many years of building those relationships. It sounds like in your line of work, you have to start, if you want to build a firm through business development, as opposed to internet leads and other types of sales marketing tactics. In your case, it’s a lot of building network partners or referral partners, as you mentioned. Then, when you get clients, turning those clients into very happy customers where you’re servicing them with a great level of attention and hand holding. That level of service turns them into referral partners of their own but those are the retail, those are the actual clients as opposed to an insurance company or a financial planner.

Barry: Correct. I think if you look at a lot of lawyers, I’m taking the liberty to say this, are unhappy in what they’re doing. They find it very stressful, very time-consuming, and this is the reason that a lot of lawyers have matrimonial problems, drinking problems, et cetera. Because, when they go to work every day, they are arguing an adversarial all day long. They’re arguing with other lawyers.

John: For a living. Right.

Barry: It takes its toll on you. Doing what I’m doing, I have been blessed because I don’t have that. The work that I do is basically with clients who come in with huge problems, who need to sort through those and come out at the end of the day with a plan, or a solution to what they’re doing. It’s a service to the clients, rather than an adversarial thing with other lawyers where unbearably, everybody is fighting with one another trying to get the better hand. I think it probably shows on the kind of work that you’re doing that you go to work every day, and you’re pretty enthusiastic about it. For example, the 400 wills that I have in the vault, eventually those are going to turn into an estate. Unfortunately, people die and families need help. It’s very rare unless somebody has moved away for example, to Florida; that while you’re holding an original will, they’re not going to ask you to handle the estate.

There are clients who move, and I don’t even know they may have moved out of state. I’ve had some clients that moved to places like Costa Rica, and those clients you lose basically because you’re geographically separated. But for the most part, once you have a will, you’re representing the family, and the family stays with you if they have confidence in you. You’ll wind up helping them through all of the intricacies that go into administering an estate, and getting everybody what they deserve, and paying in the littlest in estate taxes as possible. It’s one good aspect of doing the kind of work that I do I think.

Lead Regeneration for Estate Planning

John: Interesting. If you want to do lead regeneration for estate planning, one of the ways to do it is to get the wills first?

Barry: Right, but I’ll always ask a client, “Do you want me to hold the will, so you don’t have to worry about it?” A lot of clients want to hold it because they just feel like they need to control it somehow and not lose sight of it. In which case, I’ll either put in a safe deposit box, or in a fireproof safe in their home. But I would say, most clients — maybe 70-30, want you to hold it for them. Once they do it, it’s done, and they forget about it until something terrible may happen in the family. What I try and do also is every couple of years when the tax law changes [contact the families]; [for example] Federal Estate Tax exemption has gone up from $600,000 to $5.4 million per person since I think was the end of Bill Clinton’s term or the beginning of George W. Bush’s term.

John: That’s quite a change.

Barry: That’s quite a change, and it does require a lot of different planning because there are ways to take advantage of those exemptions. That’s a whole story for another day. What I’ll do is send out letters to clients periodically every couple of years telling them the importance of coming in at least for a review update to make sure that they’ve taken full advantage of the tax laws.

John: That goes right back into keeping that relationship strong as opposed to just throw that will in a safe deposit box and forget it. You’re going to dust it off and make sure that your clients are aware of the potential changes and keep in touch.

Barry: I’m going to try and dust it off. A lot of clients get the letter, and they read it and then they put it in a desk drawer somewhere they don’t follow up through. There’s nothing I can do about that. I can only make the initial reproach to them.

Business Development System

John: Well, you’ve focused on relationships and then what about a system? Do you have a business development system or process, certain times a day or a week that you set aside to do new business to keep growing your firm?

Barry: No, I don’t do that. At this point it grows itself. What I will do is I will basically make one stage several times a month with professionals who I want to stay in touch with and just to keep the contact. I want to be friends with all of my professional contacts; I just don’t want to be unprofessional. One of the things I always do, I always tell my clients not to call me Mr. Gardiner, to call me Barry. I have very few clients that call me Mr. Gardiner. I want it to be personal, and I usually call clients by first name, and I think it makes a big difference. There’s nothing that somebody likes more than to be called by their first name.

About 30 years ago, I took that Dale Carnegie course and one of the big things they said is that, “Everybody wants to feel important, and the way they feel most important is if you remember their name.”

John: Right, yes.

Barry: This is seen if you haven’t seen in two years where you met once or twice, and you remember their name, you are telling them that, “You are important to me.” I always try and do that.

John: Yes, now that’s great.

Barry: By the way . . ..

John: Yes, go ahead.

Barry: I forgot your first name, what’s your first name?

John: [laughs] Reginald.

Barry: John McDougall.

John: John McDougall. My father owned an advertising agency, and he always taught me, “It’s all about building relationships to grow your agency,” and it’s amazing. What you’re describing is very similar to his process. He would take people out sailing. My uncle who owned the agency with him would take people out golfing, and he wanted to get to know people. But you’re an attorney that’s just getting into the internet more; you’ve had a website for a long time, but you’re just starting to get a little deeper into it. Well, what a testament to building your business with very little help from the internet. You’ve had a website to give you some leads but hasn’t been the focus. But it’s hats off to you for using essentially regular lunch dates, talking on a first name basis with all of your customers and even just doing a few of those a month, you’re able to have enough business. Well, you’re in great shape. That’s pretty amazing. Those old school new business development tactics are just tried and true. Now you’re adding the internet to that [and that] is certainly a good thing. But what about other tips for maybe especially younger attorneys trying to do new business development?

Business Development for Younger Attorneys

Barry: Well, it’s very tough. When I was with my firm in New York, starting as an associate and then becoming a partner, I didn’t really have to develop new business because we had so much work, especially from the public companies that I mentioned before, that there was really no need. There was one rainmaker in the firm, and he developed most of the business with these public companies. The other guys in the firm, really we didn’t have to do it. When I went out on my own, after the firm, and by the way, that firm eventually did dissolve, it splintered, and the guys went in different directions. But when I went out on my own, I had to start from scratch. I did have some clients that I took with me, but fortunately I did have some of these professional relationships also.

I would say that it depends where the young attorney goes. If he does go to a bigger firm, it’s always good to develop personal relationships that can lead to business, because if and when he ever leaves, you don’t want to leave yourself out in the cold completely, you want to have some business to fall back on. If you do go out on your own to start with, you should have some business, maybe family business to get you going and then just start to develop as many professional relationships as you can with people who may be helpful to you in whatever field you’re in.

John: That’s amazing. It’s relationships [that are] number one. Again, I go back to my father teaching me to grow my own agency after working for him in the ‘90s and leaving McDougall Associate Advertising in 1995 and starting my own firm. I had to just hustle and go build it up. It’s all about relationships, as what he would always say, and basically, your foundational strategy is, “Build those relationships.” I love the first name tip, and I’ve read some Dale Carnegie work, [it’s] amazing stuff and that stuck with me as well. Remember people’s first name and there’s something in it about calling a person by their name that’s just a bonding experience.

Barry: You could go to the best law schools in the country, you could go to Harvard, you could go to Yale, but that doesn’t mean you’re going to be a successful lawyer. If you’re going to work with people, people have to feel comfortable with you. They don’t want some genius who doesn’t know how to relate to them, who they can’t talk to on a one-on-one basis in a very comfortable way. It’s making people feel comfortable in your own presence, and maybe you’ve got to feel comfortable in your own skin and take what you learn in your personal life and bring it into your practice and treat clients like people, not like numbers or dollar signs.

John: Those are great tips, Barry; great new business and business development ideas and tips. How can people get in touch with you?

Barry: I have a website, bgardinerlaw.com. My telephone number is 201-678-1323.

John: That sounds great and great speaking to you today, Barry.

Barry: You too, John, and be well.

John: Yes, likewise. Check out legalmarketingreview.com, as well as National Law Review at natlawreview.comfor more information and interviews on legal marketing. I’m John McDougall and thanks for listening.

ARTICLE BY John McDougall of McDougall Interactive

The FCC Responds to Comcast’s Negative Option

On Tuesday, October 11, the Federal Communications Commission (“FCC” or “Commission”) announced the release of an Order and Consent Decree with cable behemoth Comcast Corporation (“Comcast”) in which the company agreed to pay US$2.3M to settle an FCC investigation into whether Comcast employed negative option billing to wrongfully charge for services and equipment customers never authorized. The settlement also requires Comcast—by some accounts the largest cable company in the country with 22.3M subscribers—to adopt a sweeping, highly detailed five-year compliance plan designed to force the company to obtain customers’ affirmative informed consent prior to adding charges to their bills. According to the FCC’s press release, the settlement amount is the largest civil penalty the agency has ever assessed against a cable operator.

What is Negative Option Billing and How Does the FCC Regulate It?

“Negative option billing” is a practice similar to “cramming” in the telecommunications context, wherein a company places unauthorized charges on a consumer’s bill, requiring subscribers to pay for services or equipment they did not affirmatively request. In addition to the obvious nuisance of unknowingly paying for unauthorized services and equipment, the FCC’s action is also aimed at protecting consumers from “spend[ing] significant time and effort in seeking redress for any unwanted service or equipment, which is often manifested in long telephone wait times, unreturned phone calls from customer service, unmet promises of refunds, and hours of effort wasted while pursuing corrections.” For these and other consumer protection reasons, negative option billing is illegal; it violates both Section 623(f) of the Communications Act of 1934, as amended (the Act), and Section 76.981(a) of the Commission’s rules. Specifically, 47 U.S.C. § 543(f) explicitly prohibits negative billing options, noting also that a failure to refuse an offer is not the equivalent of accepting the offer.

As the FCC clarified in a 2011 Declaratory Ruling, while a customer does not have to know and recite specific names of equipment or service in the course of ordering those products, the cable operator must have “adequately explained and identified” the products in order for a subscriber to “knowingly accept[] the offered services and equipment by affirmative statements or actions.”

Section 76.981(b) explains that the negative billing option does not prevent a cable operator from making certain changes without consumer consent, such as modifying the mix of channels offered in a certain tier, or increasing the rate of a particular tier (unless more substantive changes are made, such as adding a tier, which then increases the price of service).

The FCC appears to have found only one violation of the negative option billing prohibition previously, and in that context, the Commission used its discretion to refrain from imposing a penalty. More than 20 years ago, in 1995, the Commission acted on a complaint and investigated Monmouth Cablevision for allegations that the company—which had previously rented remote controls to their subscribers—violated FCC rules when it removed the leasing fee on subscriber bills and instead included a $5 sale price for the remotes. In that case, the Commission explained that, while “in a literal sense, this is the same equipment that the customer previously rented, we cannot find that these customers affirmatively requested to purchase these remotes rather than renting them.” The Commission went on to explain that “changing the way in which existing service and equipment is offered, e.g., from leasing to selling,” did, in fact, violate the Commission’s negative option billing prohibition. However, due to the “de minimis difference between the $ 5.00 purchase price and the total rental price” and because of the “large number of regulatory requirements that became effective on September 1, 1993, and the associated compliance difficulties,” the then Cable Services Bureau chose not to impose a penalty. Because state governments have concurrent jurisdiction over negative billing practices, cable companies have faced court action for these and similar allegations for decades.

The FCC Investigation

Based on “numerous” consumer complaints, the FCC’s Enforcement Bureau opened an investigation in December of 2014 into whether Comcast engaged in negative option billing. In the course of its investigation, the FCC determined that customers were billed for “unordered services or products, such as premium channels, set-top boxes, or digital video recorders (DVRs).” Beyond not authorizing these products, in some cases the FCC claims that subscribers specifically declined additional services or upgrades, only to be billed anyway. In fact, the Order—which is part of the settlement but generally not subject to the non-government party’s review prior to release—details numerous complainants that claim to have been given the runaround by Comcast customer service representatives, with one customer (Subscriber A) claiming that, after three hours on the phone and multiple transfers, she was ultimately transferred to a fax machine. Another complainant (Subscriber B) asserted that he determined Comcast had wrongfully billed him for approximately 18 months for an extra cable box he never ordered, and that he spent another year calling to request (unsuccessfully) that the company remove the charge.

The Settlement

The Order and Consent Decree are striking in terms of the level of transparency exhibited throughout. Unlike most FCC settlements, in which facts and legal arguments are closely guarded and held confidential, this Order reads more like a Notice of Apparent Liability for Forfeiture, where the FCC explains the underlying facts and legal theories in substantially more detail. Especially noteworthy here, is that unlike majority of the other settlements released by the FCC’s Enforcement Bureau since Travis LeBlanc took the helm, neither the Order nor the Consent Decree include a statement admitting liability. Rather than an admission of liability by Comcast, the Consent Decree includes a lengthy discussion of the perspectives of both Comcast and the Commission. Besides arguing that most of the services were authorized and that unauthorized services inadvertently added to consumer bills were removed, Comcast—represented by FCC regular and first Enforcement Bureau Chief David Solomon—argued that the Commission itself “has cautioned against an expansive application of the Negative Option Billing Laws, stating that a broad reading of the rule could lead to harmful consequences.” Moreover, Comcast asserted that “the Negative Option Billing Laws are not per se prohibitions, but instead are targeted only at affirmatively deceptive conduct on the part of cable operators, and Commission enforcement requires a demonstrated pattern of violation,” rather than an erroneous charge “occasioned by employee error” that does not involve deceit or intent. For its part, the Commission asserted that it believes “the Customer Complaints and other facts adduced during the Investigation are evidence of violations of Section 623(f) of the Act and Section 76.981 of the Commission’s Rules.”

Moreover, the settlement requires that Comcast be required to comply with the terms of the Order and Consent Decree for an uncharacteristically long term—i.e., five years instead of the three years the Bureau has normally insisted upon.

In addition to the US$2.3M civil penalty, Comcast must implement a highly detailed compliance plan. Although in many instances, Comcast is given until July 2017 to create and implement requisite processes, the level of detail applied to the cable company’s alleged transgressions is similar to that found in certain cramming and slamming settlements. In those instances, however, the Commission is usually acting against less sophisticated targets with decidedly fewer resources that cannot retain compliance personnel with the expertise to design, develop, and implement their own expansive compliance plans. Among other things, and as explained in five pages of detail in the Consent Decree, the company is required to:

obtain customers’ affirmative informed consent prior to charging them for new services or equipment; send customers an order confirmation, separate from any other bill, that clearly and conspicuously describes newly added services and equipment and their associated charges; offer mechanisms to customers that, at no cost, enable them to block the addition of new services or equipment to their accounts; implement a detailed program for redressing disputed charges in a standardized and expedient fashion; limit adverse actions (such as referring an account to collections or suspending service) while a disputed charge is being investigated; designate a senior corporate manager as a compliance officer; and implement a training program to ensure customer service personnel resolve customer complaints about unauthorized charges.

Going forward, it appears that the Commission will have a substantial amount of insight into the way the company conducts its business vis-à-vis its customer service responsibilities, in the form of annual reports and extended document retention requirements.

Lessons from the Settlement

Over the past two and a half years, it has become more apparent that the FCC is willing to apply old rules in new ways, and to continue to be an aggressive enforcer of the rules in general, but particularly when it comes to protecting consumers. Although the Commission has issued Enforcement Advisories in the past, alerting companies that it is on the lookout for noncompliance in certain areas, this US$2M+ action is proof that regulatees should not wait for FCC warnings before ensuring they are compliant with the rules. Companies should take heed and adopt a proactive approach to understanding the rules applicable to them based on their business operations.

ARTICLE BY Koyulyn K. Miller of Squire Patton Boggs (US) LLP

Dynamic Political and Public Policy Landscape in DC on Pharmaceutical Issues

The post-election period — from the lame duck congressional session to the first 100 days and beyond of a new Administration and Congress — is expected to be a time of extraordinary, if not unprecedented, public policy debate on issues that impact pharmaceutical/life sciences companies and interest groups. These issues present both significant threats and possible opportunities to all stakeholders.

On the positive side, the 114th Congress has unfinished business in the form of the House’s 21st Century Cures Act and the Senate’s companion package of Medical Innovation bills, provisions of which are intended to streamline FDA review and approval processes as well as authorize key programs such as the Precision Medicine Initiative. And Prescription Drug User Fee (PDUFA) reauthorization is also right around the corner. These positive developments could come at a cost to the life sciences industry, however, with growing indications that a proverbial perfect storm is brewing in the U.S. on issues surrounding pharmaceutical pricing. The presidential candidates, who find little else on which to agree, have criticized drug prices and espoused strong support for proposals — including ones that would allow HHS to directly negotiate with manufacturers and the importation of lower-priced drugs from Canada and elsewhere — that are anathema to industry. As shown in the pending Medicare Part B national demonstration project, presidential administrations, in addition to the bully pulpit, have used their perceived regulatory authority to elevate the executive branch role in the drug pricing debate in the absence of congressional action, and we would expect that to continue in the next Administration.

Furthermore, recent developments suggest that whoever the next president is might find willing partners in both parties on Capitol Hill on pharmaceutical pricing-related issues, regardless of the outcome of the general election in Congress. As evidenced in recent high profile oversight and investigations hearings, criticism of the pharmaceutical industry has become bipartisan fodder. Members on both sides of the aisle have to answer a growing chorus from their constituents who seek relief from high drug prices. While Republicans historically provided some level of firewall for efforts to fend off price controls and other adverse policy prescriptions, the reservoir of political capital with the GOP is arguably less deep post enactment of the Affordable Care Act. At the same time, there are fewer moderate Democrats who in the past helped defend the industry.

Growing public opinion and ongoing critical publicity around drug prices contribute to a political environment that is more likely to result in active consideration of a variety of unfavorable legislative proposals in the drug pricing space. To date, there has been a veritable menu of bipartisan options offered, which include, among many others, requiring greater transparency by manufacturers who raise prices above a certain percentage, allowing the government to directly negotiate prices with manufacturers, importation of lower priced drugs, reduction of the data exclusivity for biologics, policy changes to encourage even greater utilization of generics, reform of patient assistance programs, and curtailing of certain practices in patent settlement agreements and REMS programs.

Momentum for any or all of these proposals might further increase if Congress and the Administration pursue a deficit reducing budgetary deal or other policy priorities that must be paid for with policy changes affecting the Medicare program. The prospect for action on anti-industry proposals is further enhanced by the reality that congressional authorization of the industry supported PDUFA will be on tap in 2017. Because PDUFA is considered “must-pass” legislation, it is recognized as a prime moving vehicle to which any number of healthcare-related proposals might be attached. It remains uncertain whether pharmaceutical pricing and access will continue to be more of a rhetorical subject or if the rhetoric translates into significant changes in federal policy. What is virtually certain is that this debate will rage on in the months ahead and that the outcome could have major ramifications for industry — whether or not new laws are ultimately enacted.

Against this backdrop, it is imperative that stakeholders follow the anticipated fast-moving developments, understand the substantive implications and political prospects for various proposals, and, where appropriate, engage in informed advocacy on Capitol Hill with the Administration and the public.

ARTICLE BY Gary A. Heimberg & Joan L. Kutcher of Covington & Burling LLP

Hillary Clinton’s Intellectual Property Litigation Experience

Many people are surprised to learn that Hillary Clinton was an intellectual property attorney when she practiced law from 1977-1992 for the Rose Law Firm. While the New York Times has reported that former colleagues cannot remember any cases she tried and that court reporters in Little Rock say she appeared in court infrequently, there are at least three reported court decisions on which she is named as counsel. A review of those decisions provides an interesting glimpse into Clinton’s background with intellectual property.

In a case involving allegations of false advertising, Clinton represented Maybelline Co. in a suit against Noxell Corp. regarding Noxell’s “Cover Girl Clean Lash” mascara product.^[1] According to the complaint, Maybelline’s principal place of business and only factory in the United States was located in North Little Rock, Arkansas. Maybelline asked the court to restrain Noxell from advertising the Clean Lash mascara as being waterproof. Maybelline submitted to the court a videotape of a Clean Lash commercial in which a voice-over claimed that “water won’t budge” Clean Lash and that it “laughs at tears,” and then submitted independent laboratory tests contradicting those claims. Maybelline argued that the commercials were deceptive. Unfortunately for Clinton, it was found that Maybelline brought suit in the wrong venue because Noxell was not doing business in the Eastern District of Arkansas.^[2] The case was transferred to a court in New York and settled.^[3]

In a trademark infringement case, Clinton represented First Nationwide Bank against Nationwide Savings and Loan Association regarding the use of the mark “Nationwide Savings.”^[4] In particular, First Nationwide Bank sought an injunction against the Savings and Loan Association’s use of the phrase “Nationwide Savings” for financial services. First Nationwide Bank argued that the use of the disputed phrase was likely to cause confusion among customers as to the provider of the financial services and was an attempt by the Savings and Loan Association to benefit from the valuable goodwill and reputation established by First Nationwide Bank. Clinton helped to secure injunctive relief for the Bank to prevent the Savings and Loan Association from using the mark.

In another case involving allegations of trademark infringement, Clinton represented Holsum Baking Co. against W.E. Long Co.^[5]regarding the use of the “Holsum” trademark in the marketing of bakery products. Long registered the “Holsum” mark on bakery products in Arkansas and later entered into an agreement granting Holsum Baking the right to use the “Holsum” name for advertising purposes in certain areas for three years. After that time, Holsum Baking began using the composite mark “Holsum Sunbeam” until more than 40 years later when it introduced a wheat bread product and marketed it as “Holsum Grains” with no mention of Sunbeam. Long then contacted the packaging suppliers of Holsum Baking and advised them not to sell packaging bearing the “Holsum” mark to Holsum Baking. Holsum Baking sought injunctive relief to reinstate its packaging source with the “Holsum” mark, arguing that the earlier agreement had been breached or abandoned by the parties and that Holsum Baking had acquired the rights to the “Holsum” mark due to use for more than 44 years. Clinton helped to secure a preliminary injunction for Holsum Baking.

While the number of reported cases involving Clinton is too small to draw any definitive conclusions, the above three cases demonstrate Clinton’s advocacy for companies that had their IP rights threatened. Some commentators have criticized Hillary Clinton’s current intellectual property platform as being vague, consisting of passing references to patent litigation reform and copyright policy. However, given her past experience, she may have more detailed thoughts on IP policy–an area that rarely is a focus in presidential campaigns.

ARTICLE BY Justin M. Sobaje of Foley & Lardner LLP

^{[1] Maybelline Co. v. Noxell Corp., 643 F. Supp. 294 (E.D. Ark. 1986).}

^{[2] Maybelline Co. v. Noxell Corp., 813 F.2d 901 (8th Cir. 1987).}

^{[3] Morrison, T.C., “The Regulation of Cosmetic Advertising under the Lanham Act,” 44 Food Drug Cosm. L.J. 49, 57 1989.}

^{[4] First Nationwide Bank v. Nationwide Sav. & Loan Ass’n, 682 F. Supp. 965 (E.D. Ark. 1988).}

^{[5] W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345 (Ark. 1991).}

Employer Strategies for Surviving Election Season

Once again, the “silly season” is upon us. Every four years, battle lines are drawn and many employees take sides, touting their preferred candidate’s merits over what they regard as the utterly despicable nature of the other candidate. Fortunately for employers (and everyone else who values their sanity) this should be over in about a month. I hesitate only because I lived in Florida during the 2000 election, and if you think things are contentious now – pray the current election cycle doesn’t go into overtime.

Free Speech?

It’s only natural for employees to discuss politics at work. But doing so can be disruptive, and if a political discussion gets out of hand, it can lead to confrontations, allegations of assault, harassment, discrimination or retaliation. Generally, private employers may limit and even prohibit political expression in the workplace, such as discussing candidates or issues, wearing or displaying political signs and paraphernalia. What about free speech, you ask? The First Amendment does not apply to private employers – only the government. Still, there are limits. For one thing, the National Labor Relations Act (NLRA) allows political discussions directly connected to the terms and conditions of employment. Second, some states (such as Colorado, Connecticut, Maryland, New Jersey, New York, Oregon, Texas, Virginia and Washington) have laws that prohibit discrimination against employees based on their political affiliation, or from unduly influencing an employee’s vote through intimidation.

Prudent employers should adopt and implement policies advising their employees of what will and will not be tolerated in the workplace during election season. If an employer wants to keep politics separate and apart from the workplace, this is perfectly appropriate – provided of course, that the employer complies with the exclusions outlined by the NLRA, which may be required under state or local law.

Election Day Leave

Another reminder during election season is that most states permit employees to take leave during the workday so they can cast their ballots. The specific laws can vary significantly by state. For instance, some states – but not all – allow voting leave only where the employee would not otherwise have sufficient time to vote before or after their scheduled shift. The majority of states require employees to provide advance notice of voting leave, and also give employers the discretion to determine the specific times during which the employee may be absent from work to vote. With few exceptions, voting leave laws typically allow an employee to be away from work for up to two or three hours during the workday to vote. Similarly, with few exceptions, most states require the employer to pay the employee for the time spent on voting leave. Further, a few states also allow employees to take time off not only to vote, but to serve as election officials.

Other Employer Considerations

Employers seeking to preserve a calm workplace in this silly season – particularly one as heated as this year’s – should try to stay above the fray and consider these strategies:

Adopting a neutral stance about the elections while focusing on the business at hand.
Review, and if necessary, revise existing policies regarding political expressions at work.
Remind employees of the policies on voting and political expression.
Check the requirements of state and local laws regarding elections, and particularly anti-discrimination and voting leave laws, to ensure compliance.
Educate your front-line supervisors and human resources personnel (especially those tasked with handling leave requests) about the company’s policies and the requirements of state and local laws.

ARTICLE BY Hannesson Murphy of Barnes & Thornburg LLP

Election 2016: Trump on Antitrust

While antitrust policy and enforcement has not received much attention from Donald Trump on the campaign trail, Mr. Trump has made a few notable statements regarding antitrust law that provide hints as to potential antitrust enforcement priorities for a Trump administration. Mr. Trump’s history as both a plaintiff and defendant in antitrust litigation is also notable and unprecedented.

In his 2011 book Time to Get Tough: Making America #1 Again, Mr. Trump addressed the Organization of the Petroleum Exporting Countries (OPEC) specifically in the context of antitrust law. Under the heading “Sue OPEC” Mr. Trump wrote:

We can start by suing OPEC for violating antitrust laws. Currently, bringing a lawsuit against OPEC is difficult. . . . The way to fix this is to make sure that Congress passes and the president signs the “No Oil Producing and Exporting Cartels Act” (NOPEC) (S.394), which will amend the Sherman Antitrust Act and make it illegal for any foreign governments to act collectively to limit production or set prices. If we get it passed, the bill would clear the way for the United States to sue member nations of OPEC for price-fixing and anti-competitive behavior. . . . Imagine how much money the average American would save if we busted the OPEC cartel.

More recently, in a May 2016 interview with Sean Hannity, Mr. Trump made a notable reference to antitrust law in connection with a discussion of Jeff Bezos and Amazon:

[Jeff Bezos is] using the Washington Post for power so that the politicians in Washington don’t tax Amazon like they should be taxed. He’s getting absolutely away. He’s worried about me and he’s, I think he said that to somebody, it’s in some article, where he thinks I would go after him for antitrust, because he’s got a huge antitrust problem because he’s controlling so much, Amazon is controlling so much of what they’re doing. And what they’ve done is, he-he bought this paper for practically nothing, and he’s using that as a tool for political power against me and against other people and, I’ll tell you what, we can’t let him get away with it. . . . So what they’re doing is that he’s using that as a political instrument to try and stop antitrust, which he thinks I believe he’s antitrust, in other words what he’s got is a monopoly and he wants to make sure I don’t get in. So, it’s one of those things. But I’ll tell you what, I’ll tell you what, what he’s doing is wrong and the people are being, the whole system is rigged – you see a case like that, the whole system is rigged. . . he’s using the Washington Post, which is peanuts, he’s using that for political purposes to save Amazon in terms of taxes and in terms of antitrust.

In addition to his statements, there is also Mr. Trump’s personal history as an antitrust litigant to be considered. In January 2016, former FTC Chairman Bill Kovacic was quoted as observing that “Donald Trump is the only presidential candidate in my lifetime to be a plaintiff in an antitrust case.

Indeed, as detailed in the American Bar Association’s Antitrust Source earlier this year, Mr. Trump was involved in three significant antitrust proceedings in the late 1980s and early 1990s. First, in 1988, Mr. Trump paid a $750,000 civil penalty to settle charges brought by the US Department of Justice (DOJ) and Federal Trade Commission (FTC) that he had violated the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) by acquiring stock in two companies without making timely HSR filings. Around the same time, Mr. Trump, as one of the owners of the New Jersey Generals US Football League team, was involved in a private antitrust suit against the National Football League (NFL)—a case that resulted in a jury verdict that the NFL had willfully acquired or maintained monopoly power in a market consisting of major league professional football in the United States, in violation of Section 2 of the Sherman Act. Damages of $1, trebled to $3, were awarded. US Football League v. Nat’l Football League, 842 F.2d 1335 (2d Cir. 1988). Finally, Mr. Trump, in connection with his Atlantic City casinos, was sued by Boardwalk Properties, Inc. on numerous grounds including allegations that he had attempted to monopolize casino gambling and had conspired to suppress competition. After a lengthy legal battle, Mr. Trump prevailed.

While we can only speculate as to how a Trump administration would approach antitrust policy and enforcement, Mr. Trump’s commentary regarding Amazon suggests that he would not be shy about pressing for aggressive investigation and potential enforcement action against those he perceives to be running afoul of antitrust laws. While it appears likely that Amazon would find itself under the microscope of a Trump administration, it is unknown whether Mr. Trump would direct enforcement towards other particular domestic companies or industries. It is also uncertain if Mr. Trump would maintain the Obama administration’s increased rate of merger challenges.

With respect to international enforcement, Mr. Trump’s comments on OPEC, coupled with his campaign focus on trade issues, suggest that he would be in favor of aggressive antitrust enforcement actions focused on foreign companies—and, potentially, against foreign governments (though some of Mr. Trump’s strategies may first require legislative action by US Congress before they can be pursued). Mr. Trump’s litigious history on both sides of antitrust laws demonstrates his familiarity and experience with the legal system, and further suggests that a President Trump would not hesitate in pressing for antitrust action against foreign actors. Mr. Trump underscored this point in Time to Get Tough favorably quoting a former Reagan and Bush advisor who, commenting on antitrust enforcement against OPEC, stated “isn’t starting a lawsuit better than starting a war?”

It is possible that a President Trump would ultimately do little to shake up the antitrust enforcement status quo, given other pressing national and international issues that have been focal points of the Trump Campaign. On the other hand, it is equally possible that, given his comments and litigation history, Mr. Trump would adopt a very aggressive antitrust investigation and enforcement policy against perceived wrongdoers, resulting in antitrust issues becoming central to a Trump administration’s economic and trade policies.

ARTICLE BY Emre N. Ilter of McDermott Will & Emery

State Department Issues Cable on Extension of Three Visa Programs

On Oct. 5, 2016, the U.S. Department of State (DOS) issued an unclassified cable on the Continuing Resolution signed into law on Sept. 29, 2016 that extends several important immigration programs, including the Conrad State 30 Program, the non-minister special immigrant religious worker program (SR visa), and the EB-5 Regional Center program. The House and Senate passed the Continuing Resolution on Sept. 28, 2016, and the president signed the bill into law on Sept. 29, 2016 (H.R.5325; P.L. 114-223).

Court Pillars, Department of State, Continuing Resolution

The DOS cable explains that the EB-5 Regional Center program (immigrant visa categories R51 and I51) now is set to expire on Dec. 9, 2016. The DOS has clarified that all EB-5 immigrant visas based upon investments made in regional center projects must be issued by close of business Dec. 9, 2016; the expiration date also applies to dependent spouses and children. The DOS has instructed all visa issuing posts to hold in abeyance any pending R51 and I51 immigrant visa applications beginning on Dec. 10, 2016, if there is no extension of the EB-5 Regional Center program on or before that date. The cable also clarifies that immigrant visas for investors not investing through a regional center (T51 and C51), i.e., the “direct” or “non-regional center” program, can continue to be issued as that program remains valid beyond Dec. 9, 2016.

In addition, the DOS cable confirms that extension of the EB-5 Regional Center program through Dec. 9, 2016 will allow priority dates to immediately become “current” for October for all countries except mainland China. The “current” priority date for China-mainland born I5 and R5 applicants is Feb. 22, 2014. Accordingly, China mainland-born investors with an I-526 Petition filed after Feb. 22, 2014, do not have immigrant visas immediately available to them and they must wait until the priority dates in the Visa Bulletin advance further.

The cable further discussed the expiration of the Conrad State 30 Program, which also will expire on Dec. 9, 2016. The Conrad 30 program allows medical doctors on J-1 visas to apply for a waiver of the two-year home residence requirement under INA §212(e) upon completion of the J-1 exchange visitor program. The cable clarifies that applicants who entered or were granted J-1 status on or before Dec. 8, 2016, may still apply for a Conrad State 30 waiver.

Finally, DOS stated in the cable that authorization for the SR visa, which is for professional and non-professional workers within religious vocation or occupation categories other than the vocation of a minister, will expire on Dec. 9, 2016. This expiration relates to immigrant visa recipients and their accompanying spouses and children only, and does not affect any nonimmigrant categories such as R-1 visas. Individuals seeking SR visa status are required to have applied for such status and be admitted into the United States prior to Dec. 9, 2016. DOS has instructed visa issuing posts that the validity of any SR visa issued, therefore, must be limited to Dec. 8, 2016, to coincide with the expiration of this classification. Posts that have issued SR visas in recent months should consider informing the recipients that they must travel by Dec. 8, 2016. Moreover, Posts that issue SR visas in December should consider informing the individual of the expiration date and necessity of traveling before the expiration date. If the visa holder is not admitted into the United States before the program expires, replacement visas cannot be issued. Beginning Dec. 9, 2016, posts are advised by the DOS to hold in abeyance any pending SR application.

The cable also explains that the DOS Visa Office (VO) will continue to provide guidance as the appropriations process continues. In December, following the federal elections, Congress is expected to reconvene for a “lame duck” session. At that time, Congress will once again consider the extension of these vital visa programs.

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