The National Law Forum

Register today for the ABA's Consumer Financial Services Basics 2014 – October 6-7 in Baltimore

The National Law Review is pleased to bring you information about the upcoming American Bar Association event, the 5th Annual Consumer Financial Services Basics 2014 conference.

This live meeting is designed to expose practitioners to key areas of consumer financial services law, whether you need a primer or a refresher. In the pressure cooker of today’s financial services industry, the breadth and complexity of the issues you are facing will dominate any seminar dissecting recent developments alone. It is time to take a step back and think through some of these complex issues with a faculty that combines decades of practical experience with law school analysis. The classroom approach is used to review the background, assess the current policy factors, step into the shoes of regulators, and develop an approach that can be used to interpret and evaluate the scores of laws and regulations that affect your clients.

NLRB Says There Is Such Thing as a Free Lunch

This week, the National Labor Relations Board (the NLRB) attempted to disprove the old adage that there’s no such thing as a free lunch. In Gates & Sons Barbeque of Missouri, Inc., decided on September 16, 2014, the three-member panel of the NLRB unanimously affirmed most of the decision reached by an administrative law judge (the ALJ) that a Kansas City barbecue restaurant chain violated employee rights by taking away the meal benefits previously afforded to its employees.

Checkered Tablecloth with Fork and Knife

The free lunch at issue in this case consisted of a meat sandwich and a side provided to each employee during each shift that he or she worked, a $6 to $10 value. This lunch benefit was provided to employees at the Main Stree location (the only location, out of eight total locations, at issue) from at least 2011 until the end of July 2013. Other benefits received by employees during this time included the right to make purchases on a “tab,” to be deducted from future paychecks, and qualification for monthly bonuses tied to the location’s performance.

In July 2013, some of the employees of the Main Street location took part in a campaign, organized by the Workers’ Organizing Committee of Kansas City (the WOC), to obtain higher wages for food workers. Prior to the planned 1-day strike organized by the WOC, the Main Street location manager met with a group of employees that had previously met with a WOC organizer and made various threats intended to stop them from striking. In spite of the threats, nine out of the thirty Main Street employees participated in the 1-day strike. The workers that struck were all allowed to return to work, but the Main Street location supervisors announced the following week, via posted notices and word of mouth, that they were discontinuing certain employee benefits, incluing the free employee meals and the right to buy food on a tab.

Despite the testimony of one of the Main Street location’s supervisors that the free lunch was taken away from the workers because of customer complaints and poor performance, the ALJ found that the taking away of the free lunch and other benefits was a violation of Section 8(a)(1) of the National Labor Relations Act because it was in retaliation for the employees’ participation in the 1-day strike. Gates & Sons was ordered to make their employees whole for the lost meal benefit.

ARTICLE BY

Steve L. Hernández

Barnes & Thornburg LLP

Are iWills The Way of the Future?

Smartphones sure make lives a lot easier (and, arguably, busier). With a few taps of a screen, individuals can do everything from checking the weather to buying stock to engaging in FaceTime across the world. One individual in Australia recently came up with another innovative use for his smartphone. He used it to prepare his Last Will and Testament shortly before taking his own life.

Karter Yu typed his Will on the Notes application installed on his iPhone, titling the document his “Last Will and Testament.” When challenged, the Supreme Court of Queensland, Australia declared the electronic document to be in fact the Will of Mr. Yu, the decedent. Consequently, the document was admitted to probate. The court specifically noted that the document contained the decedent’s signature and was automatically time and date stamped by the phone.

While the Australian case presents a unique example of how technology is transforming the world of estate planning, it is not recommended that individuals use the same “do-it-yourself” digital approach. First, electronic communications can easily be lost or outdated as technology rapidly advances. Such communications may also fail to meet the traditional requirements of testamentary formalities (which vary from one jurisdiction to another) and may raise red flags about the document’s validity or authenticity. For instance, how can a court be sure that the true author was the decedent and not someone simply using his iPhone? Was the document composed under duress? Was it meant to invalidate a previous Will? Under the current statutes and laws of Kentucky, such “writing” would not qualify as a person’s Living Will and Testament.

However, as we move further into the digital age, courts will likely be required to re-examine what type of instrument may qualify as a Will. For now, though, estate planning is best done on paper with the aid of an estate planning attorney. Instead of trying to use your iPhone to write a Will, use it to call an estate planning attorney who can work with you to ensure your estate planning needs are met in accordance with your wishes and within the applicable law.

ARTICLE BY

Terri R. Stallard

McBrayer, McGinnis, Leslie and Kirkland, PLLC

Tips for Improving Your Client Retention Rates [INFOGRAPHIC]

Client retention consultancy Sparked counts some of the world’s most successful brands as its clients, including Microsoft, Google, Kraft, SAP, Barclays and more. So it’s worth lending an ear when they release research that shows a mere 5% increase in a company’s client retention rate can increase profits by as much as 95%.

Many firms don’t place much emphasis on client retention, believing such fallacies as one or two poor experiences can jettison a relationship (actually, clients leave because of poor performance overall, not just a few isolated incidents).

Sparked has created this infographic to show where firms go wrong when it comes to client retention and provides the remedies for correcting it:

ARTICLE BY

Stephen Fairley

The Rainmaker Institute

New U.S. Restrictions on Russia: OFAC (Office of Foreign Assets Control) Guidance and Industry-Specific Sanctions

OFAC Expands the 50 Percent Rule

Last month, the Department of Treasury’s Office of Foreign Assets Control (OFAC) released new guidance related to entities owned or controlled by persons designated as a Specially Designated National (SDN) on OFAC’s SDN list. Although the guidance leaves intact the current meaning “50 percent rule,” the rule will now allow OFAC to take a far broader approach in determining when the 50 percent rule applies.

Under the 50 percent rule, as it stood before the August 13 release of the updated guidance, all entities owned or controlled, directly or indirectly, by an SDN (i.e., any entity of which an SDN owns 50 percent or more) are considered designated by operation of law and must be treated as SDNs. Thus, companies owned or controlled by SDNs are blocked, even if they are not themselves specifically listed on the SDN list. It is unlawful for U.S. persons to conduct virtually any business with any SDN.

In a major expansion of the 50 percent rule, OFAC will now aggregate the ownership interests of SDNs when it determines whether the rule applies. Specifically, the new guidance provides that “any entity owned in the aggregate, directly or indirectly, 50 percent or more by one or moreblocked persons is itself considered to be a blocked person” (emphasis added). According to OFAC’S updated Frequently Asked Questions on the issue, “if Blocked Person X owns 25 percent of Entity A, and Blocked Person Y owns another 25 percent of Entity A, Entity A is considered to be blocked.” Taken to the logical conclusion, the new approach means that an entity owned or controlled by a large number of SDNs, each with a small interest in the entity itself, may nonetheless be designated, and afforded the same regulatory treatment, as an SDN.

Notably, OFAC did not provide for a transition period as the new rule takes effect, nor is there any mention of a general authorization for companies to end involvement in now-potentially prohibited transactions.

More than ever, companies must focus on conducting appropriate due diligence when operating in the universe of potentially covered persons, entities, or transactions. Due to the expansion of potentially blocked entities, American companies must determine what policies and procedures need to be in place for vetting would-be business partners before engaging in any transaction, so they do not inadvertently conduct unlawful business with SDNs.

Russian Industry Sector Sanctions

Separately, On August 6, 2014, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) issued a final rule amending the U.S. Export Administration Regulations (EAR) to implement the most aggressive set of export controls against Russia in recent memory. In short, the new rules will deny export, reexport, and transfer (in-country) licenses for certain dual-use items for use in Russia’s energy sector.

Specifically, under the new EAR section 746.5 and amendments to other sections, a license is now required to export, reexport, or transfer (in-country) certain items when the exporter “knows or is informed that the item will be used directly or indirectly in Russia’s energy sector for exploration or production from deepwater …, Arctic offshore, or shale projects in Russia that have the potential to produce oil or gas or is unable to determine whether the item will be used in such projects in Russia.”

The “certain items” referred to in the regulation include two classes of products: (1) any item subject to the EAR listed in Supplement No. 2 to Part 746, including fifty-two specific products listed by Schedule B number; and (2) any item specified in the following Export Control Classification Numbers: 0A998, 1C992, 3A229, 3A231, 3A232, 6A991, 8A992, or 8D999. BIS includes the following list of illustrative examples of restricted products: “drilling rigs, parts for horizontal drilling, drilling and completion equipment, subsea processing equipment, Arctic-capable marine equipment, wireline and down hole motors and equipment, drill pipe and casing, software for hydraulic fracturing, high pressure pumps, seismic acquisition equipment, remotely operated vehicles, compressors, expanders, valves, and risers.”

With the exception of License Exception GOV, which authorizes certain exports and reexports to U.S. and foreign governmental agencies and intergovernmental organizations, no license exceptions are available to fulfill the new licensing requirement. Thus, all exports of the restricted products will require a BIS license for export or reexport to Russia, regardless of whether those products were formerly exportable to Russia with no license required. Further, the new BIS rule imposes a presumption of denial for license applications “when there is potential for use directly or indirectly for exploration or production” from deepwater, Arctic offshore, or shale projects in Russia with the potential to produce oil.

The final rule does not contain a savings clause. That means any restricted products exported to Russia without a license on or after August 6 may be considered violations, even if the products were formerly exported under a license exception.

Those companies exporting items used in the exploration or production of oil or gas should immediately determine whether any of the products they export, reexport, or transfer to Russian end-users (or intermediaries with constructive or direct knowledge that the ultimate end-user is in Russia) are restricted products as defined in the new rule. If so, companies should understand the implications of the new licensing requirements and the presumption of denial for license applications. Further, if your company is unable to determine whether your products are used in the end-uses defined in the rule, the rule requires that such products be considered subject to the licensing requirements. Thus, unless you can affirmatively determine that your products are not to be used for the energy-related activities defined in the rule, then your company should assume that its products are subject to the licensing requirements.

ARTICLE BY

J. Scott Maberry

Matthew L. Riemer

Sheppard, Mullin, Richter & Hampton LLP

Department of Defense Contractors Agree to Pay the U.S. Government $5.5 Million for Allegedly Supplying the Military with Low-Grade Batteries for Humvee Gun Turrets Used in Iraq; Minnesota Whistleblower to Receive $990,000

On September 16, 2014, the Department of Justice (DOJ) announced that Department of Defense (DOD) contractors, M.K. Battery, Inc. (M.K. Battery), East Penn Manufacturing Company (East Penn), NPC Robotics, Inc. (NPC), BAE Systems, Inc. (BAE) and BAE Systems Tactical Vehicle Systems LP (BAE) had agreed to a settlement of $5.5 million for allegedly violating the False Claims Act (FCA) by selling the U.S. Military substandard batteries for Humvee gun turrets used on military combat vehicles in Iraq. Minnesota whistleblower, David McIntosh, former employee of M.K. Battery, will receive $990,000 which represents his share of the settlement for reporting fraud against the government – in this case misrepresentation of a vital product supplied to the DOD.

A gun turret is a weapon mount that protects the crew or mechanism of a projectile-firing weapon and at the same time lets the weapon be aimed and fired in many directions. Sealed acid batteries are used as a backup to turn the turrets on the Humvees in the event that the engine gives out. According to Mr. McIntosh, and unbeknownst to the Army, the manufacturing process of the batteries was allegedly changed from the original design presented to the DOD, consequently cutting the battery’s life span by as much as 50 percent and potentially putting U.S. Troops in harm’s way. Mr. McIntosh, from Stacy, Minnesota, who at the time was employed by M.K. Battery as a regional sales representative, brought his concerns to top company officials at M.K. Battery. However, in 2007 after numerous unsuccessful attempts to convince M.K. Battery that its decision to cut costs on these batteries could be hazardous to U.S. Troops, especially during combat, Mr. McIntosh alerted the DOD to this matter. Three month later, M.K. Battery fired Mr. McIntosh.

Shortly thereafter, Mr. McIntosh and his attorneys filed the lawsuit under the whistleblowersprovisions of the False Claims Act, which is one of the most effective methods that the government has implemented for combating fraud. Under the FCA, any person, who knows of an individual or company that has defrauded the federal government, can file a “qui tam” lawsuit to recover damages on the government’s behalf. Mr. McIntosh filed this particular lawsuit on behalf of himself and the Department of Defense. Additionally, a whistleblower who files a case against a company that has committed fraud against the government, may receive an award of up to 30 percent of the settlement. In this case, Mr. McIntosh’s share of $5.5 million is approximately 18 percent of the settlement.

ARTICLE BY

Whistleblower Practice Group

Tycko & Zavareei LLP

Effective September 12, 2014: New Fees for Some Nonimmigrant and Immigrant Visas

The Department of State (DOS) has revised certain nonimmigrant and immigrant visa fees. DOS has adjusted the visa fees in the following categories:

E visas – treaty/trader and Australian specialty occupation visas decreased to $205 (from $270).
K visas – Fiancé(e) or Spouse of U.S. citizen category visa increased to $265.
Immigrant visa application processing fee based on an approved I-130 Immediate Relative of Family Preference petition increased to $325.
Immigrant visa processing fee based on an approved I-140 employment-based petition decreased to $345 (from $405).

As detailed on the DOS website, the following procedures apply:

DOS will not refund the difference for fees that have been lowered.
If you are applying for a category where the fee has been raised and you have already paid the fee, you are not required to pay the difference between the amount you paid and the new fee as long as your appointment is on or before December 11, 2014.
If you are applying for a category where the fee has been raised, you are required to pay the difference between the amount you paid and the new fee if your appointment is on or after December 12, 2014.

ARTICLE BY

Barbara Chin

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Six Ways to Build Momentum in your Practice

We have all ‘been there’ finding ourselves too busy with client work to breathe and then the rollercoaster heads downward and we’re searching for new projects. It can be challenging to devote any time to developing new work when your plate is already full. But, what happens when we’ve eaten what we’ve killed, proverbially speaking?

I work with law firm clients consistently who voice the same complaint: “I’m so busy, until I’m not.” This common thread began my wheels turning on how to stabilize the perennial ebbs and flows of business development and how, if at all, can lawyers take proactive steps to get and keep momentum in their practices.

At the outset, I will directly state that those who engage in random acts of marketing such as sporadically reaching out to their network; infrequently scheduling coffee/meal dates with top clients; and other high impact business development initiatives need to just stop it – – – now. It’s a waste of all your resources and, in the end, doesn’t reflect well on you as a business owner. Instead, I offer a better approach: development and maintain a balance approach by creating momentum to your business development efforts. Read on to learn what you need to know.

Word of the day: momentum. Webster defines it as the tendency of an object to continue movement in a single direction. And, the speed of the movement increases in exact proportion with the degree of momentum. If the speed is very slow, there will not be much momentum, period.

When lawyers genuinely invest in building a prosperous practice, one of the quickest ways to get there is by focusing your time and energy on the concrete steps that matter most: delivering extraordinary service to existing clients (to sow the seeds for recurring assignments) and targeted relationship-building to develop new clients and referral sources.

By taking concrete action in a meaningful and purposeful way, you will generate a certain momentum which must be sustained to build traction with your business development efforts. The more you can ‘just do it’, the more and more momentum you will build, the more comfortable you will be with doing that activity or task, and the more productive and effective you will be – closer to reaching your end goals.

What we often see with clients if they may begin on a high note, commit themselves to one or two business development initiatives, then they really struggle with sustaining the momentum and follow through which is critical to building a prosperous practice.

In short, the momentum is stunted and whatever traction the client created is lost. Among the value that we bring to clients, guiding them along in the business development strategy and execution process and holding them accountability is highly rated, according to our client feedback.

Below are steps lawyers can take to create momentum in building a prosperous practice and sustain it over the long term:

1. Plan for Success – Once and for all, stop the random acts of marketing that wastevaluable resources and, most likely, ends up making you feel like you are failing. Develop a 6-month plan by writing down concrete action steps you will take on a weekly, if not daily, basis to meet your goals (sometimes, getting crystal clear on your goals is the first place to start).

Then, schedule these concrete action steps (such as reaching out to 2-3 referral sources every week for either a coffee date or lunch/dinner; draft a blog post twice month, etc.) in a calendar, whether that is paper or digital, do what works best for you. These should become “non-negotiable” commitments that you will honor and discipline yourself to take. Don’t be shy to reward yourself after each action that you take.

By taking consistent, persistent action on a regular basis, you will create momentum; it’s not good just making an activity a ‘one-off’. One must take purposeful action regularly to build and sustain momentum to carry through to your goals. To make something happen routinely we need to be persistent. Persistence is what separates the men from the boys. Education is great, high intelligence is better, but, it takes a persistent approach to build momentum and build a business.

2. Get Moving – Start reaching out according to your action steps. Begin researching blog topics. Research your LinkedIn connections for prospective introductions. Choose one action item that will contribute to one of your goals and take immediate action. Get moving, today.This means no postponing, no delaying, no procrastinating, no excuses.

3. Stay Focused– Remind yourself of your goals every day and stay focused on them. Post visual reminders on your mirrors at home, on your computer screen at work. When you find yourself distracted by something that is not directly in line with your goals, ask yourself, “Why?” Identify how you will manage future distractions and look for ways to eliminate them.

4. Stay Active– Do something every day that will bring you closer to your goals. It need not be big – it must be consistent and persistent. If too many days pass between actions, momentum will dwindle and eventually die.

5. Avoid Paralysis by Analysis– Nothing slows momentum more than indecision. Decide as quickly as possible and then take some immediate action to support the decision – no matter how trivial it seems.

6. Seek support- Many successful rainmakers say that you must have an insightful coach and trusted advisor to guide you along the way. Build a strong team of supporters to help you to get and stay focused and to support your desire to bring cohesion and build a strong momentum to your business-building vision. All things are possible, if you keep your eye on the goal.

Remember, my mantra – marketing success comes only through the consistent, persistent massive amounts of action over a prolonged period of time. There are no magic bullets or shortcuts to success!

ARTICLE BY

Kimberly Alford Rice

KLA Marketing Associates

CBP Announces Optimized Processing for First-Time Canadian TN and L Applicants

U.S. Customs and Border Protection (CBP) has announced optimized processing procedures at fourteen ports-of-entry, including four pre-clearance locations, for Canadian citizens seeking TN or L status for the first time. This initiative is designed to increase customer satisfaction, decrease wait times and allow CBP to effectively deal with increased volume of Canadian TN and L applicants. Although first-time Canadian TN and L applicants may go to other ports for processing, CBP is encouraging applicants to go through one of the designated ports below for optimized processing:

Pre-Flight Inspection Locations

Pearson International Airport, Toronto, Ontario
Trudeau International Airport, Dorval, Quebec
Vancouver International Airport, Richmond, British Columbia
Calgary International Airport, Calgary, Alberta

Land Port Locations

Highgate Springs Port of Entry, Highgate Springs, Vermont
Derby Line Port of Entry, Derby Line, Vermont
Alexandria Bay Port of Entry, Alexandria, New York
Peace Bridge Port of Entry, Buffalo, New York
Rainbow Bridge Port of Entry, Niagara Falls, New York
Champlain Port of Entry, Champlain, New York
Detroit Canada Tunnel Port of Entry, Detroit, Michigan
Detroit Ambassador Bridge Port of Entry, Detroit, Michigan
Blaine Peace Arch Port of Entry, Blaine, Washington
Sweetgrass Port of Entry, Sweetgrass Montana

ARTICLE BY

Ian R. Macdonald

Greenberg Traurig, LLP

Attend the Retail Law 2014 Conference – October 15-17, 2014, Charlotte, North Carolina

The National Law Review is pleased to bring you information about the upcoming Retail Law Conference:

Retail Law 2014: At the Intersection of Technology and Retail Law

When

October 15-17, 2014

Where

Charlotte, NC

The 2014 Retail Law Conference takes place October 15-17 in Charlotte, NC. This year’s program is stronger than ever with relevant, compelling and interactive sessions focused on the legal issues affecting retailers. In partnership with the Retail Litigation Center (RLC), RILA will host legal counsel from leaders in the retail industry for the fifth annual event.

This year’s Retail Law Conference will feature issues at the intersection of technology and law, how the two spaces interact and the impact that they have on retailers. Topics will likely include:

Anatomy of a Data Breach: Prevention & Response
Privacy: Understanding New Technologies & Data Collection
Advertising Practices: Enforcement & Social Media
ADA Implications for New Technologies
Legal Implications for Future Payment Technologies
Policies & Procedures of The “Omnichannel” Age
Patent Litigation “Heat Maps”
Union Organizing Campaigns
Wage & Hour Litigation
EEOC Enforcement
Foreign Corrupt Practices Act
Corporate Governance & Disclosure
Election 2014
Dueling Views of The U.S. Supreme Court
Legal Ethics

The Retail Law Conference is open to executives from retail and consumer goods product manufacturing companies. All others, such as law firms and service providres, must sponsor in order to attend, and can do so by contacting Tripp Taylor at tripp.taylor@rila.org.

The National Law Forum

Register today for the ABA's Consumer Financial Services Basics 2014 – October 6-7 in Baltimore

Like this:

NLRB Says There Is Such Thing as a Free Lunch

Like this:

Are iWills The Way of the Future?

Like this:

Tips for Improving Your Client Retention Rates [INFOGRAPHIC]

Like this: