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The National Law Forum - Page 451 of 753 - Legal Updates. Legislative Analysis. Litigation News.

DOE Releases 2014-2015 Offshore Wind Technologies Market Report

On September 29, 2015 the Department of Energy released the 2014-2015 Offshore Wind Technologies Market Report, assessing the nation’s offshore wind potential and planned projects through June 30, 2015. The report summarizes domestic and global market developments, technology trends, and economic data with the purpose of aiding U.S. offshore wind industry stakeholders. The Report builds upon previous market reports conducted by the Navigant Consortium between 2012 and 2014, which would track U.S. wind projects that had reached an “advanced stage” of development. The 2015 Market Report not only assesses the progress of offshore wind projects in various stages but it also analyzes projects in a range of countries. To learn more about where the U.S. offshore wind industry stands in comparison to other countries as well as about domestic and global ongoing projects and expected trends, read on!

New Method for Tracking Offshore Wind Projects

The National Renewable Energy Laboratory (NREL) re-developed its system for classifying and tracking the progress of projects within the development pipeline. The purpose of this new method is to increase connectivity across markets and regulatory regimes as well as to objectively assess the status of projects.

Global Offshore Wind Market on Target to Set Annual Deployment Record in 2015

The increase in offshore wind projects in the pipeline is leading to an upsurge in operational capacity spread out across the world. While 1,069 megawatts (MW) of new wind capacity was installed in 2014, it is expected that 2015 will provide approximately 3,996 MW of wind capacity, making 2015 a record year for offshore wind deployment. The total global installed capacity is now 8,990 MW. At this rate, the global cumulative capacity could exceed 47,000 MW by 2020. Projects are also beginning to spread out beyond Europe. While currently 63% of the projects are located in Europe, 23% are located in Asia, 9% in North America, and 5% spread across the rest of the world.

15,650 MW of U.S. Projects are in Various Stages of Development

There are 21 U.S. offshore wind projects in the development pipeline, which equates to 15,650 MW of potential installed capacity. 13 of these projects have achieved site control or a more advanced phase of development. While most of the offshore wind projects are located in the North Atlantic region, there seem to be feasible offshore resources in the South Atlantic, Great Lakes, Gulf of Mexico, and Pacific regions of the U.S.

Deepwater Wind Begins Installation of First U.S. Offshore Wind Project

The Block Island Wind Farm (BIWF) began offshore construction in 2015. Led by Deepwater Wind, clients of ML Strategies, BIWF is expected to be the nation’s first offshore commercial wind project, it also has the potential to lower electricity prices for the residents of Block Island, provide substantial clean energy to the mainland townships of southern Rhode Island as well as produce approximately 300 jobs during its construction phase.

Cost Trends and Learning from Europe

Offshore wind projects are capital-intensive, where utility scale projects (>200 MW) generally require investments of over $1 billion. With projects expected to be built in locations that are located in deeper water, further away from shore, and larger in size, operating costs becomes an even greater concern. The industry is focused on introducing a variety of technological innovations to drive down the cost. The DOE’s Report suggests the U.S. will likely enact a cost structure similar to that of Europe. Part of the reason Europe’s offshore wind industry is so widespread is due to its ability to subsidize projects via investors and its action on the part of policymakers. For instance, policymakers in the UK have set goals to reduce the Levelized Cost of Electricity (LCOE) and are implementing programs designed to lower costs, reduce risk to developers, and minimize the prices required to make projects financially viable as evidenced by their initiation of competitive auctions for subsidies, their classification of zones that emphasize size affordability (choosing projects closer to shore), and their sponsoring early-stage development activities to reduce uncertainty about site conditions. Recent state and federal policy developments including President Obama’s issuance of the Clean Power Plan regulation and the initiation of the BIWF project provide hope for the U.S.’ offshore wind industry.

Overall, even though the EU continues to lead projects in the wind industry, the industry is becoming more geographically dispersed with projects now underway in the U.S. and Asian markets. While the biggest challenge the U.S. offshore industry faces is the current high cost of offshore wind generation, the industry is focused on cutting such costs through leveraging European technology and experience.  It is also the hope that cost reductions of projects in the EU caused by its target to reduce the LCOE for offshore wind projects, the Cost Reduction Monitoring Framework set up by the UK government, and additional actions by policymakers, will translate to the U.S., further strengthening the wind industry in the U.S.

Article By R. Neal Martin & Sarah Litke of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Medical Cannabis in Illinois: What Employers Need to Know

THE MEDICAL CANNABIS PILOT PROGRAM IN ILLINOIS

Is Illinois allowing recreational cannabis use, as is currently the case in Colorado and Washington?
No. The Illinois medical cannabis program is one of the most restrictive regulatory programs in the country, limiting individual usage and industry operations much more than a recreational cannabis state such as Colorado. The Illinois medical cannabis program is a four-year experiment. Illinois government leaders will evaluate a variety of outcomes before deciding whether to restrict, expand or modify the approved uses of cannabis.

How many patients in Illinois will be participating in the pilot program?
Currently, just over 3,000 patients have been approved by the Illinois Department of Public Health to participate in the program. Thousands more are expected to register once the program begins full operations.

How will I know if an employee is approved to participate as a patient in the pilot program?
Employees approved to participate in the program will be issued a State of Illinois identification card verifying registration with the Illinois Department of Public Health.

EMPLOYER CONCERNS

Are employers required to allow patients to use medical cannabis in the workplace?
No. The Illinois medical cannabis law does not require employers to permit employee use of cannabis in the workplace, even when the employee is registered as a patient in the pilot program.

Is permission to use medical cannabis required as a “reasonable accommodation” under the Americans with Disabilities Act?
Although some states have specific language in their laws that answer this question, Illinois law does not appear to include the use of medical cannabis as a required reasonable accommodation under the ADA. Although the underlying debilitating medical condition may qualify an individual for protections under the ADA, whether an employer decides to allow an employee to use medical cannabis as a reasonable accommodation under the ADA will be an individualized determination for the employer to undertake.

Am I required to tolerate medical cannabis use by an employee who works in a safety-sensitive position (i.e., a position in which the employee’s cannabis use could increase the risk of harm to the employee or others)?
No. An employer can enforce a zero-tolerance policy that disallows cannabis use by any employee, such as a physician, who works in a safety-sensitive position.

EMPLOYEE AND CANDIDATE DRUG TESTING

Can I require a medical cannabis patient who is in my employ or a candidate who I am considering hiring to undergo drug testing? What can or should I do if the employee or candidate tests positive?
In Illinois, an employer has discretion to require job candidates (as part of a conditional job offer) and employees to undergo drug testing, as long as the drug testing is conducted in a non-discriminatory manner. The employer also has the option of taking disciplinary action against a current employee who tests positive for a controlled substance (including cannabis), withdrawing an offer of employment issued to a job candidate who tests positive, or taking no action. However, the employer should be consistent in its policies and practices.

If I have contracts with the federal government, am I required to conduct drug tests for medical cannabis for job candidates and/or employees? If so, what am I required or permitted to do if a candidate or employee tests positive for cannabis use?
Some federal government contractors are required to conduct tests for drugs, including cannabis use, for employees and job candidates who are or will be performing certain safety-sensitive or security duties (e.g., owners of nuclear power plants, gas or oil pipelines, airlines and railroads). Action to be taken as a result of a positive drug test will depend on the pertinent circumstances. To ensure compliance with such requirements, employers should consult with an experienced employment law attorney for additional guidance.

Should I review and modify my personnel policies pertaining to drug use and testing? If so, what types of issues should I consider?
Yes, now is an ideal time to review personnel policies involving drug testing and protocols for responding to employee drug use and abuse. Management should carefully consider the company’s approach to drug testing of employees and develop a consistent and transparent plan for responding to drug test results.

Article By Bob Morgan of Much Shelist, P.C.

© 2015 Much Shelist, P.C.

Responding to a Hyper-Competitive Legal Market: 2015 and Beyond

The results of Citigroup’s 2015 Law Firm Leader’s Peer Monitor Report were examined by a highly informative panel[i] at Thomson Reuters’ recent 20th Annual Law Firm Leaders Conference in New York. The detailed discussion outlined overall marketplace trends and reviewed the strategies of law firms who are profitably navigating today’s turbulent legal market.

pic1articleState of the U.S. Business Law Marketplace

Market conditions for law firms are stabilizing in 2015 but a fragile global economy / geopolitical climate, and changing legal department purchasing behavior are leading to continuing flat demand for purchasing legal services. Current marketplace conditions include: more work being done in-house or by non-law firm outsourced providers and law firms coming in from other markets who are competing aggressively on price and / or who are buying business growth by lateral attorney hires.

Lower demand for law firms’ services is also being driven by a decreased appetite for costly litigation and developing technology which performs more cost effectively commodity type legal work.[ii].  The most common reasons for moving work in house is more control over costs and increased efficiency.[iii] In a 2015 survey of over 300 in-house counsel from 22 industries over 47% of the companies surveyed reported an increase in the number of law department lawyers employed.[iv]

Larger Business Trends Lead to a Less of an Appetite for Litigation and a Push for More Cost Effective Service Delivery

General Counsel manage their departments in tandem with the overall goals of the business.  Unresolved legal issues can have a negative impact on a company’s stock price and reserves set aside for lengthy litigation could be deployed for other business activities. Accordingly, there is an ongoing trend of companies settling earlier than before, and being more open to pursue alternatives to expensive and drawn out courtroom trials.[v]   Also, the increased cost of conducting complex litigation due to e-discovery, is also causing companies to think twice about how hard and how long they want to fight.

legal dept tech spend crop
A Look Inside: 2015 Thomson Reuters Legal Department In-sourcing and Efficiency Report

Since the great recession many law firms have become adept at trimming administrative overhead costs but seem to forget that corporate law departments are corporate overhead.   In a 2013 survey of 238 managing partners and law firm chairs, over 44 percent indicated that their firms had taken steps to improve the cost effectiveness of legal service delivery, mostly in the form of changing project staffing models to include part-time and contract lawyers and outsourcing an increasing number of non-lawyer functions at their firms. [vi] Alternative service providers in the legal arena cover functions such as discovery management, document creation, dispute resolution alternatives to litigation, and talent management services. Legal process out sourcing (LPO) through alternative service providers has a predicted growth of 30% in 2015 and it is estimated that there is currently $20 billion of outsourceable legal work in the U.S. legal marketplace.[vii]    It is estimated that the LPO market has only captured 5.5% or $1 billon of the estimated $437billion U.S. legal market.[viii] 

legal dept outside counsel spend cropped
A Look Inside: 2015 Thomson Reuters Legal Department In-sourcing and Efficiency Report

Practice Areas Where Demand Is Consistent or Growing for Law Firms

While businesses may have less of appetite for costly litigation, demand remains strong in certain areas due to more domestic regulatory investigations and U.S. lead examinations stemming from cross-border activities. [ix]  In a survey released this month, 48% of law departments predicted an increase in regulatory work in the next year.[x] Other growth practice areas include:  Intellectual Property/Patent; Cybersecurity/Data Privacy; Bankruptcy; Healthcare/Pharmaceutical, Financial Services and Mergers/Acquisitions. [xi]

Common Features of Underperforming Law Firms in Today’s Marketplace

To address the buying needs of corporate clients, firms which are surviving are becoming more efficient and predictable in their pricing and service delivery.  Firms who are underperforming tend to have:

  • The lowest overall leverage rate (partner to associate) and less cost effective use of leverage;

  • A higher reliance on income partners, and a declining income partner contribution;

  • A high use of Other Lawyers but the use of these lawyers make a negative contribution to the firm’s bottom line;

  • A lower overall equity partner productivity and a decline of equity partner equity during 2009-14;

  • The lowest realized rates and lowest growth in those rates during 2009-14;

  • A heavier litigation reliance;

  • Less rocket science work and more commoditized work; and

  • Firm brands that are not as sharply differentiated or recognized.[xii]

What a Hyper-Competitive Legal Market Marketplace Means Operationally

General Counsel are generalists, who manage the legal needs of a company but are limited in the legal tasks they can and should do on behalf of their client, the company.  Accordingly, there is always a set group of work that won’t be done in-house or for which third party specialized expertise is advisable.   Outsourcing of ‘rocket science’ work and going to law firms who have established reputations for certain types of work are easier sells for in-house counsel who have to sell their outsourcing decisions to company management. Marketplace trends are resulting in more of a concentration of high end work in a smaller group of law firms.  Notable legal market predications / observations made by the panel:

  • Clients will further segment the market (“financial and reputational tiering”);

  • Firms will further consolidate;

  • Lateral activity will remain high; and

  • Brand differentiation will help attract the right laterals and grow market share in a flat demand environment.

With continued cost pressures, the panel commented that profitable law firms will:

•           Use systems and processes to improve:

  • Matter management;

  • Practice management;

  • Workforce management; and

  • Partner performance measurement.

In order to demonstrate a concern for efficiency, successful law firms need to facilitate better collaboration between the firm and client.  In order to leverage internal resources and grow deeper, more stable and more profitable relationships with clients, law firms need to improve or better communicate their client service offerings and share information about legal developments. The panel identified the following ways to stay or become known for expertise and to demonstrate concern for law firm department budgets:

  • Knowledge sharing;

  • Client relationship teams, strategic and well thought-out cross selling; and

  • Developing associates and younger partners to ensure a sustainable business and cost effective service delivery structure.

Take-Aways

You have to have a brand – “We’re cheaper – but still really good and can do whatever you need, especially the easy stuff” isn’t working.  Established brands make law firms an easier sell for in-house counsel to their management or management may even advocate for well know legal brands to their law departments.  Company management does suggest particular law firms and attorneys and they pass on to the law department relevant thought leadership that they were sent by law firms or that they have come across. Executive management approves the law department’s budget.  The general counsel should not be your only contact point. If you want to be considered for the less than 10% of litigation work that’s considered bet the company, shouldn’t management know you and feel comfortable that you know their needs?

According to David Cruickshank of Edge International, 96% of firms say lateral hires are part of their growth strategy[xiii].  Great legal brands help recruit great associates and laterals, as well as clients.   How do you keep the attention of attorneys at regulatory agencies, high potential law grads and star attorneys with established practices?  Share your knowledge.  Many legal recruiters scour publications as a starting point for finding lateral candidates in niche practices.  Your knowledge and service are your brand. How do you build or maintain a brand? Share your knowledge, write, speak, repeat.

How do you convey to clients and potential clients that you mean what you say – that you have deep expertise, that you can manage things in a cost effective manner, that you collaborate, that you are committed to technology – you show them. Jay Hull, Chief Innovation Partner at Davis Wright Tremaine mentioned during the conference that you go for wins on small projects with name brand clients, for proof of concept.  Per Jay if you want to show a commitment to technology and innovation, you bring a legal technologist to a pitch meeting.  Don’t drag your client into inter partner quarrels if you want to build confidence in your ability to manage complex multi-jurisdiction litigation. Want show deep expertise, include multiple authors on articles, rainmakers should bring along associates or new partners to speaking engagements or networking events – be a team and grow and show your depth.

Article by Jennifer Schaller of the National Law Review

Copyright ©2015 National Law Forum, LLC

[ii] Citi 2015 Law Firm Leaders Survey.

[iv] 2015 HBR Consulting Law Department Survey – the Center for the Study of the Legal Profession at the Georgetown University Law Center and Thomson Reuters Peer Monitor.

[v] 2015 Client Advisory 2014: Great News for Some, Mixed Results for Others Citi Private Bank and Hildebrandt Consulting.

[vi] 2013 Law Firms in Transition: An Altman Weil Flash Survey, Thomas S. Clay Altman Weil, Inc., May 2013

[viii] Revenues estimated using AmLaw 200 data, Peer Monitor, Hackett Group Report and New York Times; Expenses from Peer Monitor Corporate Legal Dept is based on internal spend on legal matters.

[ix] A Look Inside: 2015 Thomson Reuters Legal Department In-sourcing and Efficiency Report.

[x] 2015 HBR Consulting Law Department Survey.

[xi] Citi 2015 Law Firm Leaders Survey.

[xii]2015 HBR Consulting Law Department Survey – the Center for the Study of the Legal Profession at the Georgetown University Law Center and Thomson Reuters Peer Monitor.

[xiii] 7 Thoughts About The Lateral Hiring Process, Above the Law, April 15, 2014.

Join NAWL at their General Counsel Institute – November 5-6 in NYC

nawl general counsel institute new york GCI national association of women lawyers

Register today!

The last several years have brought significant changes to the General Counsel position and for many, a rise of greater prominence within their companies. Large-scale forces are transforming the economics of corporations as they face challenges related to accelerating competition, cost controls, technology development, reporting transparency, and Wall Street’s focus on short-term profit maximization.

As a result, the General Counsel increasingly has a broader scope beyond being strictly a legal advisor to also being a C-suite executive, senior counselor to the Board, the CEO, and the CFO, and the ultimate guardian of the company’s integrity. The General Counsel and her in-house lawyers are expected to understand the full spectrum of their company’s business and provide expert legal advice, business strategy input, and ethical guidance.

At GCI 11, you will explore ways to create and promote your legal department as a key business partner, develop and employ critical business relationships, and strategically advance your expertise and skills to bolster your prominence within the company. Through powerful personal stories, substantive legal workshops, and GCI’s unique open exchange of ideas, you will soar to new heights as you develop practical solutions to stay relevant in today’s evolving corporate legal and business environments.

US Department of State Issues November 2015 Visa Bulletin

The new bulletin shows no movement in filing date cutoffs and little movement in approval date cutoffs for those chargeable to India and China.

The November 2015 Visa Bulletin shows little change from the October 2015 Visa Bulletin issued on September 25. The new category of filing date cutoffs remains exactly the same as in October, and only a few visa categories in the Application Final Action Dates chart have changed. This alert addresses employment-based classifications.

Application Final Action Dates for Employment-Based Preference Cases

The application final action cutoff dates for employment-based preference classification show movement in the following categories (changes shown in BOLD):

Employment-
Based

All Chargeability
Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01FEB12

01AUG06

C

C

3rd

15AUG15

01JAN12

01APR04

15AUG15

15JUN07

Other Workers

15AUG15

01APR06

01APR04

15AUG15

15JUN07

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Nonregional
Center
(C5 and T5)

C

22NOV13

C

C

C

5th
Regional
Center
(I5 and R5)

C

22NOV13

C

C

C

Movement in the Employment-Based Second Preference (EB-2) Classification

China second preference advanced to February 1, 2012 (one month): An individual chargeable to China in the second preference category may have his or her adjustment of status (AOS) or immigrant visa application approved if the person’s priority date is prior to February 1, 2012.

India second preference advanced to August 1, 2006 (15 months): An individual chargeable to India in the second preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to August 1, 2006.

Movement in the Employment-Based Third Preference (EB-3) Classification

China third preference advanced to January 1, 2012 (2.5 months): An individual chargeable to China in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to January 1, 2012.

India third preference advanced to April 1, 2004 (three weeks): An individual chargeable to India in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to April 1, 2004.

Philippines third preference advanced to June 1, 2007 (five months): An individual chargeable to the Philippines in the third preference category may have his or her AOS or immigrant visa application approved if the person’s priority date is prior to June 1, 2007.

Movement in the Employment-Based Fifth Preference (EB-5) Classification

China fifth preference Nonregional Center (C5 and T5) advanced to November 22, 2013 (five weeks), and China fifth preference regional center (I5 and 45) is now available for those individuals whose EB-3 cases were filed prior to November 22, 2013.

Dates for Filing Employment-Based Visa Applications

Application filing date cutoffs are as shown below:

Employment- Based

All Chargeability Areas Except
Those Listed

China (mainland born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01JAN13

01JUL09

C

C

3rd

01SEP15

01OCT13

01JUL05

01SEP15

01JAN10

Other Workers

01SEP15

01JAN07

01JUL05

01SEP15

01JAN10

4th

C

C

C

C

C

Certain Religious
Workers

C

C

C

C

C

5th Nonregional
Center (C5 and T5)

C

01MAY15

C

C

C

5th Regional Center
(I5 and R5)

C

01MAY15

C

C

C

First and fourth preference classifications remain current for all chargeable categories, as does the classification for certain religious workers.

Employment-based second preference classification for those chargeable to the worldwide quota, Mexico, and the Philippines remains current.

Employment-based fifth preference classification for the worldwide classification, India, Mexico, and the Philippines remains current.

For complete details, see the full Visa Bulletin for November 2015.

ARTICLE BY Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

DOS vs USCIS: Visa Bulletin Games

Last week USCIS issued guidance stating that it will advise which of the two visa bulletin charts; Dates for Filing Visa Applications or Application Final Action Date applicants should use.

Today, USCIS released it’s first update on its new visa bulletin website stating that applicants CAN use the new “Dates for Filing” chart in October and November.

Unlike for the October visa bulletin, no changes have been made to the visa bulletin dates after the original publication.

ARTICLE BY Immigration Practice Mintz Levin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Employee Fired for Facebook Selfie

facebook tab labelA Georgia employee was recently terminated from his position at a marketing firm as a result of a disgraceful Facebook “selfie.” In this case, the employee took a “selfie” with a co-worker’s African American son and uploaded the image as his profile picture. The employee’s picture resulted in a number of Facebook “friends” making derogatory, racist, and disgraceful remarks about the child (we won’t be posting them here). In response to some of the remarks, the employee described the child as “feral.” Not surprisingly, the company promptly terminated the employee’s employment.

Why is this story worth mentioning?  Because this Facebook post represents yet another clear example of social media activity that falls outside the scope of the National Labor Relations Act (NLRA).

As many employers are aware, the NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.).

Analyzing whether a post amounts to “protected concerted activity” can be a difficult process. As a result, we believe it is best to work through the analysis with examples. On one end of the spectrum you may have a Facebook post between employees engaging in a civil discussion regarding workplace safety. This discussion would arguably constitute protected concerted activity. On the other end of the spectrum you may encounter a post like the example discussed above – arguably not protected concerted activity. Along the spectrum you may encounter various other examples:

  1. “We don’t get paid enough to work overtime for that d@mn jerk!”

  2. “Good thing OSHA isn’t around because my dumb boss doesn’t care about safety.”

  3. “Our best customer, Mr. Smith, is a jerk.”

  4. “The boss is too old to run the company.”

  5. “I am going to beat up my supervisor and key his car.”

Examples 1 and 2 arguably constitute “protected concerted activity.” Examples 3-5 arguably do not. Remember: the farther the post strays from the “terms and conditions of employment,” the more likely discipline will be permissible. Of course the analysis is much more complex than this. Many other factors could come into play. As such, it is always prudent to involve outside counsel when evaluating whether an employee should be disciplined for a social media post.

Article By Peter T. Tschanz of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Three Reasons Why Lawyers Avoid Business Development

One of the scariest things someone can do is to approach an attractive stranger in a bar and begin speaking.  While there are the limited few with nerves of steel who can talk with anyone about anything, the majority of us humans are actually intimidated by this act.  Why are some of us afraid of these conversations and others confident? How does this apply to being a lawyer and building a sustainable book of business? The ability to understand the “why” and overcome your own personal uncertainty could mean the difference between success and failure in building a sustainable law practice.

Although there are many different reasons why lawyers are so hesitant to go after new business, I would like to explore the top three that keep some attorneys awake at night.  The unfortunate truth for many attorneys is that without developing your own clients, you will not have the freedom and security that was so easily obtained 20 years ago.

Reason #1: The fear of rejection

One of the main reasons people don’t go into sales is because of the seemingly endless amount of rejection that comes with selling a service. You may recall your first experience with rejection when you were picked last for a game of kickball or when your best friend found someone new to hang out with. As you became older, someone may have turned you down at your local bar. You may have felt sick before approaching that person, and even worse when he or she wasn’t interested in your advances.  Whatever the case, you knew that you hated rejection and the way it made you feel. It’s obvious that the risk of getting rejected is something to avoid if given the choice.

There are two key elements to overcoming the fear of rejection. Unfortunately, they are not easily mastered until you’ve obtained the proper mindset. The first element is dealing with what I call “head trash.”  Head trash is the mess that you create between your two ears regarding things that you are afraid of. There’s an acronym for F-E-A-R, which stands for “False Evidence Appearing Real.” This means that you’ve built up something scary in your mind, when in reality nothing bad is going to happen. Think about the first time you went skiing or rode a roller coaster. Of course you might have been afraid—until it was over. Then you probably said, “What was I so afraid of?”

When it comes to rejection from your business development activities, the same sentence can be uttered, “What was I so afraid of?” One of the first things I do with the attorneys I work with is to get them to realize there is absolutely nothing to fear.  You’re not going to die or get hurt in any way. The rejection, if it does happen, is not personal.  The reality is that not everyone is going to do business with you. Sometimes it’s because you weren’t the best fit for them or they weren’t the right fit for you. That’s just the way it is.

Another important element to overcoming fear when selling legal services is to be very skilled at what you do. Top lawyers have an endless reserve of confidence because they know that no one else can do a better job for a client than they will. This confidence allows the fear to subside because if someone doesn’t select you, it’s his or her loss. Move on to the next opportunity, as there will be many more to come.

Reason #2: The stigma that is attached to the word “sales” and “salespeople.”

One of the main reasons why lawyers are hesitant to invest time on their business development efforts is because of the negative feelings one has towards sales. It is seen as a dirty profession. The imagery of carpetbaggers and soapbox pitchmen is synonymous with the word sales.   To make things worse, we have all been “taken for a ride” at some point in our lives, paying too much for something we were sold.

It’s possible that you chose a career in law, specifically to avoid having to sell anything.

While I have been in sales for over 25 years, I never remember saying as a child, “Gee, one day I hope to grow up to be a salesperson.”  For many millions that are currently in a sales role, it’s really a default profession.

As an attorney, you probably never thought that you would have to sell anything right?  More like “hoped.” The reality for most attorneys over 60 years old is that they didn’t have to sell. Being a good lawyer and trusted counselor was probably enough. In fact, my father retired from law in 1999 and never had to make a business development call or attend a networking event in his entire career. Well, obviously, things have changed.  Lawyers today need to control their own financial destiny by getting out there and originating new business.

As I mentioned previously, it’s important to be the best lawyer you can be. It’s also critical to have a better process for selling legal services. The old school “pitch” meetings and aggressive tactics to closing new business are outdated. The easiest way to stop the negatively charged stigma associated with sales and salespeople is to stop doing it yourself.

Think about it this way. When you enter a courtroom for a big trial, are you properly prepared?  What happens if you aren’t? All attorneys know that preparation and execution in a courtroom are paramount for success to occur. In selling legal services, it’s not that different. Being properly prepared for a prospective client meeting is just as involved as going into the courtroom.  You need to have a more relationship driven and consultative approach, to remove the salesy element from the room. Ask questions and learn about the prospective client’s needs, wants and desires. While this is easy for me to say, it’s very difficult to actually execute. We are all wired to solve problems and present solutions. It’s a constant struggle to hold back, ask quality questions and really listen to a prospective client’s issues. Just yesterday, one of my clients closed a new piece of business. At the end of the meeting the prospect said to him, “I’ve never had an attorney ask me so many questions before. You really seem to understand my problems.” That’s it! If you can change your approach to avoid being salesy, the negative stigma will also be removed from within your brain.

Reason #3: Lack of education on business development

“They never taught me this in law school.”  If I’ve heard this once, I’ve heard it a hundred times. It’s sad, but true.  Skills including networking, time management, follow-up and selling process are all learnable for attorneys. Business development can be frustrating and challenging. Without the proper education on how to plan and execute on it, you might be doomed to fail from the start.

In order to be great at something, anything, you take lessons. For example, try learning a new language, sport or musical instrument without any professional help. Not an easy road to travel.  While some people are more adept at figuring things out through trial and error, we all know it’s best to seek out the best help available.

A few ideas for finding this education include seeking out an open-minded mentor at your firm. She likely has already traveled down the wrong paths and may help you avoid those pitfalls. Another option is to study the topic of sales. If you were to read five books and get a few take-aways from each one, you will probably make fewer mistakes. Even one small positive change that becomes a habit could have a significant effect on a career’s worth of business development. Lastly, look for professional help. There are coaches, consultants and trainers locally and nationwide that may be a good resource for you. Be sure to check references and try to find someone that you can connect with on a personal level. And those legal superstars around you who seem to attract business wherever they go? They are continually fine-tuning their skills as well—in such ways as coaching, training and peer-to-peer counseling. Whichever direction you decide, it’s definitely better than wasting countless hours on marketing efforts that aren’t getting you results for your time invested.

Whether you are a new partner in your firm, a solo player or an up-and-coming associate, it’s important to understand what sales is really all about.  The best business developers today aren’t the most aggressive, pushy or salesy. They are relationship focused, confident in their skills and consultative in how they approach new clients.  Strong business developers have lost the fear of rejection, and replaced it with confidence in their skills as a top lawyer and high level solution provider in the legal field.

Article By Steve Fretzin of Sales Results, Inc.

Copyright @ 2015 Sales Results, Inc.

Buyer Beware! Despite Tokenization, Mobile Payments are not Bulletproof

Virtual Card Present – A New Breed of Mobile Credit Card Fraud 

As credit card fraud rises, ensuring the security of mobile payments is important for merchants and consumers alike. To combat fraud, the next generation of mobile payment platforms employ tokenization to create more secure mobile payments systems. While tokenization may reduce the susceptibility to mobile payment fraud, it is not bulletproof, leaving room for a new breed of credit card fraud.

Tokenization is a process in which sensitive information, such as a credit card number, is replaced with a randomly generated unique token or symbol. Tokenization helps simplify a consumer’s purchasing experience by eliminating the need to enter and re-enter account numbers when shopping on mobile devices. Tokens benefit merchants too, by eliminating the need for them to store payment card account numbers. Merchants have decreased risk as they are not directly handling sensitive and regulated data. The result is overall increased transaction security and reduction in mobile payment fraud.

For example, Apple Pay uses tokenization to ensure all personal account numbers (PANs) are replaced with randomly generated IDs, or tokens, that are then used to authorize one-time transactions. Although Apple Pay users upload credit card information to their devices, neither Apple nor retailers ever have direct access to this sensitive financial data. The security of the iPhone’s tokenization is further bolstered by the use of a biometric fingerprint that is stored on an isolated chip, separate from the token.

Even with the use of tokenization, there remains a weak link in securing mobile payments: ensuring a mobile payment system provides its app to a legitimate user, rather than a fraudster. And criminals love a weak link.

While Apple Pay’s use of tokenization coupled with the biometric authentication provides strong security, hackers are committing a new type of fraud by exploiting this weakness in user authentication. To circumvent tokenization (and biometrics), hackers have been loading iPhones with stolen card-not-present data to create Apple Pay accounts. This essentially turns the stolen credit card data back into a “virtual” physical card – à la Apple Pay.

The responsibility for this new type of Virtual Card Present (VCP) rests with the card issuers, who have the burden of establishing that Apple Pay cardholders are legitimate customers with valid cards. Some banks have begun addressing the issue of user authentication by requiring customers to call to activate Apple Pay, ensuring their identities are verified.

VCP fraud is sure to increase as additional entrants, such as Samsung and Loop Pay, enter the market with their own mobile payment systems. The largest Apple Pay competitor, CurrentC, backed by the Merchant Customer Exchange (MCX), a consortium of large retailers, is set to be launched later this year. While boasting “Security at Level” including passcode, paycode and cloud protection, how CurrentC intends to combat VCP fraud is yet to be seen.

As cybercriminals grow more sophisticated, mobile payment providers and issuers should react to VCP by focusing on developing innovative and strong user authentication solutions.

This article appeared in the October 2015 issue of The Metropolitan Corporate Counsel. The views and opinions expressed in this article are those of the author and do not necessarily reflect those of Sills Cummis & Gross P.C. Copyright ©2015 Sills Cummis & Gross P.C. All rights reserved

Article By Nicole Joy Leibman of Sills Cummis & Gross P.C.

© Copyright 2015 Sills Cummis & Gross P.C.

Biometrics: Facebook Files Motion to Dismiss Privacy Suit over Facial Recognition Technology

As discussed in a previous post on facial recognition technology, a putative class action has been filed against Facebook over the collection of “faceprints” for its online photo tagging function, Tag Suggestions.  (See e.g., Licata v. Facebook, Inc., No. 2015CH05427 (Ill. Cir. Ct. Cook Cty. filed Apr. 1, 2015) (the case has been transferred to a San Francisco district court, Licata v. Facebook, Inc., No. 15-03748 (N.D. Cal. Consolidated Class Action Complaint filed Aug. 28, 2015)).

The plaintiffs claim that Facebook’s use of facial recognition technology to scan user-uploaded photos for its Tag Suggestions feature violates Illinois’s Biometric Information Privacy Act (BIPA), 740 ILCS 14/1, and has been used to create, what the plaintiffs allege, is “the world’s largest privately held database of consumer biometrics data.”

Plaintiffs allege that Facebook extracts face geometry data (or faceprints) from user-uploaded photographs and retains such “biometric identifiers” within the meaning of the BIPA. The complaint alleges, among other things, that Facebook collected and stored biometric data without adequate consent.  The complaint seeks an injunction and statutory damages for each violation (note: BIPA provides for $1,000 in statutory damages for each negligent violation, and $5,000 for intentional violations, plus attorney’s fees).

Last week, Facebook filed its motion to dismiss, arguing, among other things, that based on the choice of law provision in its terms of service, California, not Illinois, law should apply (thereby precluding users from bringing a claim under BIPA), and that, regardless, Section 10 of BIPA expressly “excludes both ‘photographs’ and ‘information derived from photographs’ from its reach.”

Those wanting a preview of the plaintiffs’ response to Facebook’s motion should look to a similar privacy action against Shutterfly currently being litigated in Illinois federal court.  (See Norberg v. Shutterfly, Inc., No. 15-05351 (N.D. Ill. filed June 17, 2015)).  There, the plaintiff brought claims under BIPA against the photo storage service Shutterfly for allegedly collecting faceprints from user-upload photos for a tag suggestion feature without express written consent and “without consideration for whether a particular face belongs to a Shutterfly user or unwitting nonuser.”  In its motion to dismiss, Shutterfly, like Facebook, argued that scans of face geometry derived from uploaded photographs are not “biometric identifiers” under BIPA because the statute excludes information derived from photographs.

In his rebuttal, the plaintiff Norberg claimed if the intermediation of a photograph before processing face geometry excluded such data from the definition of a biometric identifier, then the statute would be meaningless:

“Defendants’ interpretation of the BIPA as inapplicable to face scans of photographs is contrary to the very nature of biometric technology and thus would undermine the statute’s core purpose. A photograph of a face is exactly what is scanned to map out the unique geometric patterns that establish an individual’s identity. Taken to its logical conclusion, Defendants’ argument would exclude all the biometric identifiers from the definition of biometric identifiers, because they are all based on the initial capture of a photograph or recording.”

We will be watching both disputes closely – if the suits are not dismissed on procedural or contractual grounds, this will be the first time a court will have the opportunity to interpret the contours of the Illinois biometric privacy statute with respect to facial recognition technology.

Article By Jeffrey D Neuburger of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.