The National Law Forum

2 more weeks until NAWL's 2014 Mid-Year Meeting – March 19-20 Washington D.C.

The National Law Review is pleased to bring you information about the upcoming 2014 Mid-Year Meeting of the National Association of Women Lawyers (NAWL).

When

Wednesday March 19 – Thursday March 20, 2014

Where

Washington, D.C.

Join us at the 2014 Mid-Year Meeting in Washington, D.C. on March 19-20, 2014 at the Renaissance Washington, DC Downtown Hotel.

This year’s program is Leadership through Change: Lessons from D.C. and Beyond. The hard work and collaboration of the entire Mid-Year Meeting Planning Committee have produced a comprehensive and rich program relevant to Women in all fields of legal practice. Topics we will cover include a mix of professional development and substantive sessions: Navigating in a Majority Environment: Clearing the Hurdles to Success; Cyber & Data Security; Developing Lawyers as Leaders; 50th Anniversary of the Equal Pay Act: Where We Stand; and Power: How To Get It and How To Wield It. We will be announcing our keynote and other speakers soon, so please stay posted on the website. Finally, as always, there will be networking time built in throughout the event.

While we hope that you learn a lot from the meeting, we also want you to enjoy yourselves in our nation’s capital—and, with luck, enjoy the height of the cherry blossom season after a very long winter. We believe that you will leave the 2014 NAWL Mid-Year Meeting inspired and look forward to seeing you in D.C.

The Do’s and Don’ts of Investing in a Lead Generation Service

In order to grow your firm, you need to invest in a reliable marketing and advertising program. Lead generation services are a great alternative to investing and managing your own campaigns, which can be both costly and time consuming for the average attorney. Lead generation services can not only offer you consistent, quality leads but also provide you with a total marketing package that allows you to manage those leads. There are a slew of companies that will make you a lot of promises, but how do you know which ones are legitimate?

What steps should you take before you decide the right company for your firm’s needs?

Lead Generation Service Marketing Law Firm Legal

Do Your Research

Not all lead generation services are equal. Some will scam you. Some will give you old or undesirable leads. Some will give you leads but don’t offer additional marketing services and support that will ensure continued success.

Research several companies and find out their reputation. Look for a company with longevity, positive client testimonials and a desire to see your law firm succeed. One who knows that their best interest as a marketing firm is to do whatever it takes to grow your law firm; their success is 100% dependent upon yours. No other lead generation service will be worth your hard earned dollars if they don’t care enough to be the best.

Do Make a Long Term Commitment to Your Firm’s Success

Be wary of companies that encourage a short-term approach to your advertising needs. Marketing and advertising is an ongoing commitment. Any successful advertising program, whether it’s done internally or through lead generation services requires two things: patience and time. A consistent stream of new potential clients is the key to long-term, sustained growth for any firm. This can’t be done with a stop and start approach to your marketing.

Don’t Ignore Industry Trends

Effective marketing for a personal injury practice is changing and evolving. It is imperative that you invest in an advertising service that follows closely with potential client’s search behaviors. The firm must employ a diversified approach that will reach at anytime a wide variety of potential clients. Advances in media means potential clients use various devices to stay connected. Whether it’s TV, internet or mobile, the right company will employ more than one of these sources to generate leads for your firm. Using an agency that employs only one of these methods means you are putting all your eggs in one basket – which is never an effective way to spend your advertising dollars.

Getting your firm’s name out there and making it effortless for potential clients to reach you in their time of need is critical to growing your practice. Paid lead generation can be beneficial when used and managed correctly.

Finding the right legal marketing firm that can provide you the ultimate lead generation service, that has exclusive, quality leads in your geographic area in combination with a marketing package that is all inclusive, can be a challenging process.

Article by:

Anush Alexander

Of:

RW Lynch Company, Inc.

California District Court Holds that Providing Cellphone Number for an Online Purchase Constitutes “Prior Express Consent” Under TCPA – Telephone Consumer Protection Act

A federal district court in California recently ruled that a consumer who voluntarily provided a cellphone number in order to complete an online purchase gave “prior express consent” to receive a text message from the business’s vendors under the TCPA. See Baird v. Sabre, Inc., No. CV 13-999 SVW, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014).

In Baird, the plaintiff booked flights through the Hawaiian Airlines website. In order to complete her purchase, the plaintiff provided her cellphone number. Several weeks later she received a text message from the airline’s vendor, Sabre, Inc., inviting the plaintiff to receive flight notification services by replying “yes.” The plaintiff did not respond and no further messages were sent. The plaintiff sued the vendor claiming that it violated the TCPA by sending the single text message.

The central issue in Baird was whether, by providing her cellphone number to the airline, the plaintiff gave “prior express consent” to receive autodialed calls from the vendor under the TCPA. In 1992, the FCC promulgated TCPA implementing rules, including a ruling that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 ¶ 31 (1992) (“1992 FCC Order”). In support of this ruling, the FCC cited to a House Report stating that when a person provides their phone number to a business, “the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.” Id. (citing H.R.Rep. No. 102–317, at 13 (1991)).

The court found that, while the 1992 FCC Order “is not a model of clarity,” it shows that the “FCC intended to provide a definition of the term ‘prior express consent.’” Id. at *5. Under that definition, the court held that the plaintiff consented to being contacted on her cellphone by an automated dialing machine when she provided the number to Hawaiian Airlines during the online reservation process. Id. at *6. Under the existing TCPA jurisprudence, a text message is a “call.” Id. at *1. Furthermore, although the plaintiff only provided her cellphone number to the airline (and not to Sabre, Inc., the vendor), the court concluded that “[n]o reasonable consumer could believe that consenting to be contacted by an airline company about a scheduled flight requires that all communications be made by direct employees of the airline, but never by any contractors performing services for the airline.” Id. at *6. The Judge was likewise unmoved by the fact that the plaintiff was required to provide a phone number (though not necessarily a cellphone number) to complete the online ticket purchase. Indeed, the court observed that the affirmative act of providing her cellphone number was an inherently “voluntary” act and that, had the plaintiff objected, she could simply have chosen not to fly Hawaiian Airlines. Id.

Baird does not address the October 2013 TCPA regulatory amendments that require “prior express written consent” for certain types of calls made to cellular phones and residential lines (a topic that previously has been covered on this blog). See 47 CFR § 64.1200(a)(2), (3) (emphasis added). “Prior express written consent” is defined as “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial prerecorded voice, and the telephone number to which the signatory authorized such advertisements or telemarketing messages to be delivered.” 47 CFR § 64.1200(f)(8). Whether the Baird rationale would help in a “prior express written consent” case likely would depend on the underlying facts such as whether the consumer/plaintiff agreed when making a purchase to be contacted by the merchant at the phone number provided, and whether the consumer/plaintiff provided an electronic signature. See 47 CFR § 64.1200(f)(8)(ii).

Nonetheless, Baird is a significant win for the TCPA defense bar and significantly reduces TCPA risk for the defendants making non-telemarketing calls (or texts) to cellphones using an automated dialer (for which “prior express consent” is the principal affirmative defense). If that cellphone number is given by the consumer voluntarily (and, given the expansive logic of Baird, we wonder when it could be considered “coerced”), the defendant has obtained express consent. Baird leaves open a number of questions worth watching, including how far removed the third-party contractor can be from the company to whom a cellphone number was voluntarily provided. Judge Wilson seemed to think it was obvious to the consumer that a third-party might be utilized by an airline to provide flight status information, but how far does that go? We’ll be watching.

Article By:

Matthew J. Fedor

William A. Wright

Brianna E. Kostecka

Of:

Drinker Biddle & Reath LLP

Join InsideCounsel for their 14th Annual Super Conference – May 12-14, 2014 Chicago, IL

The National Law Review is pleased to bring you information about the upcoming 14th Annual Super Conference hosted by Inside Counsel.

When

Monday, May 12 – Wednesday, May 14, 2014

Where

Chicago, IL

The annual InsideCounsel SuperConference, for the past 13 years, has offered the highest value for educational investment within a constructive learning and networking environment. Legal professionals will gain the opportunity to elevate the quality of their performance and learn ways to become a strategic partner within his/her organization. In two-and-half days attendees earn CLE credits, network with hundreds of peers and legal service providers and hear strategies to tackle corporate legal issues that are top of mind throughout this comprehensive program. SuperConference is presented by InsideCounsel magazine, published by Summit Professional Networks.

Now celebrating its 14th year, InsideCounsel’s SuperConference is an exclusive corporate legal conference attracting more than 500 senior level in-house counsels from Fortune-1000 and multi-national companies. The three-day event offers opportunities to showcase your firm’s industry knowledge and thought leadership while interacting with GC’s and other senior corporate counsel during exclusive networking and educational opportunities. The conference agenda offers the perfect blend of experts and national figure heads from some of the nation’s largest corporations, top law firms, government and regulatory leaders, and industry trailblazers. The conference agenda and educational program receives consistent high marks.

Bad Precedent: Lawyer Censured for Buying Google Keywords for Other Lawyers and Law Firms

I thoroughly disagree with this anti-competitive, anti-consumer censure. It’s bad precedent.

I was the defense’s law firm marketing/social media expert witness in Habush vs. Cannon & Dunphy on this very issue (although the lawsuit was filed under a Wisconsin state “invasion of privacy” statute).

This is common practice online. When you Google “Avis,” a sponsored link for Hertz shows up in the margin. The user isn’t deceived and everyone gets more information and more choices, which is good for consumers. It’s a strategy that helps smaller firms with smaller marketing budgets compete against big-name, big-budget firms.

This keyword-bidding strategy is certainly aggressive, but it shouldn’t be considered unethical or unprofessional; it’s simply an issue of taste, which is subjective. We shouldn’t legislate taste.

Article by:

Ross Fishman

Of:

Fishman Marketing, Inc.

New Social Network for Attorneys Now Online

A new social network for attorneys – Foxwordy – has now launched and is offering any lawyer who is “an innovator and influencer in the legal industry” a free three-month membership to what its founder is calling an “invitation-only private social-networking platform brings together relevant top-tier legal colleagues to efficiently collaborate in real-time.”

It appears that this new site is aimed at creating a new attorney-to-attorney referral platform. Foxwordy founder Monica Zent said that the site provides a way for attorneys to gain a peer validated reputation and encourages collaborations that would normally happen via the phone, in person or by email.

Some of the site’s features include:

Real-time collaboration with other lawyers working on common issues

Ability for attorneys to share best practices and language for legal documents

Listing of job opportunities similar to LinkedIn

Zent says there are currently 1,000 members on the website that is now out of beta. The network will not be available to the public; it is designed solely as a website for attorneys to share information and collaborate, and membership is by invitation only. You provide your name and email address on the home page to request an invitation.

It was unclear on the site how you are vetted for membership; since the site’s revenue model is based on subscriptions alone ($10 per month), I was guessing that the bar isn’t set too high. And I was proven right after I had one of my non-attorney staff members enter her name and Gmail address, and she received a congratulatory email minutes later on her acceptance.

I’d be interested to hear from attorneys who sign up and participate on this new social network for lawyers – what are you finding of most value for your practice from this new social media tool?

Article by:

Stephen Fairley

Of:

The Rainmaker Institute

“Dual” Employment Contracts for US Executives Working in the UK

Background

February 2014

Individuals, whether of British or foreign nationality, who reside in the UK are, in principle, taxable on their worldwide employment income. Many US executives who are “seconded” by their US employer to work in the UK may therefore become UK tax resident.

Such US executives who have not been UK resident in the three previous tax years and are not UK domiciled need not pay UK tax on their overseas earnings if they do not bring the income to the UK. Other US executives resident in the UK over the longer term may incur liability for UK tax on their overseas income unless their employer structures their employment duties under separate employment contracts, one with the UK subsidiary for their UK duties and another with the US parent for their overseas duties. These have become known as “dual contracts”. If the non-UK domiciled executive keeps the income earned under the overseas contract outside the UK, no UK income tax should arise on that income. He or she will pay UK income tax on the income earned in the UK under his or her UK contract.

“All Change”

In December 2013 HM Government announced that it would be clamping down on the artificial use of dual contracts for longer-term UK residents and has now published draft legislation that makes offshore employment income in a dual-contract arrangement taxable in the UK in certain cases.

The New Rules

Under the new anti-avoidance rules, which come into force on 6 April 2014, the dual-contract overseas income of US executives resident in the UK will be taxed in the UK if:

the executive has a UK employment and one or more foreign employments,

the UK employer and the offshore employer either are the same entity or are in the same group,

the UK employment and the offshore employment are “related”, and

the foreign tax rate that applies to the remuneration from the offshore employment is less than 75 percent of the applicable rate of UK tax. The current top rate of UK income tax is 45 percent, and 75 percent of this rate is 33.75 percent.

The UK employment and the offshore employment will be “related” where, by way of non-exhaustive example:

one employment operates by reference to the other employment,

the duties performed in both employments are essentially the same (regardless of where those duties are performed),

the performance of duties under one contract is dependent on the performance of duties under the other,

the executive is a director of either employer, or is otherwise a senior employee or one of the highest earning employees of either employer, or

the duties under the dual contracts involve, wholly or partly, the provision of goods or services to the same customers or clients.

Action

US corporations should urgently review the use of dual contracts for their non-UK domiciled executives seconded to their UK subsidiaries before the 6 April 2014 start date. The proposed legislation is widely drafted and has the potential to catch even genuine dual-contract arrangements. If one of the dual contracts is with a group employer in a low-tax jurisdiction, that contract may be especially vulnerable. Dual contracts will not necessarily become extinct, but in the future, careful cross-border tax advice should be sought in their structuring.

Article by:

Jonathan Edgelow

Lydia Sadler

Richard L. Thomas

Sam Tyfield

Of:

Vedder Price

Illinois Federal Court Issues Reminder That "100% Healed" Requirements Violate ADA (Americans with Disabilities Act)

On February 11, 2014, an Illinois Federal District Court issued a decision reminding employers that “100% healed” return-to-work requirements violate the Americans with Disabilities Act (“ADA”). In EEOC v. United Parcel Service, Inc., the U.S. Equal Opportunity Commission (“EEOC”) filed a lawsuit alleging that United Parcel Service’s (“UPS”) “100% healed” requirement violated the ADA. UPS moved to dismiss the complaint, claiming that the EEOC could not state a claim that there was a violation of the ADA. The Court denied UPS’s motion and permitted the EEOC lawsuit to proceed.

UPS maintained a leave policy requiring employees to be “administratively separated from employment” after 12 months of leave. In 2007, an employee returned from a 12-month medical leave. After returning, the employee requested certain accommodations, including a hand cart. UPS refused to provide any accommodation. Shortly thereafter, the employee injured herself and needed additional medical leave. Instead of granting leave, UPS terminated the employee under its 12-month leave policy.

The EEOC alleged that UPS’s 12-month leave policy acted as a “100% healed” requirement because it functioned as a “qualification standard” under the ADA. UPS argued that the ability to regularly attend work was an essential job function and not an impermissible “qualification standard” and, therefore, not in violation of the ADA.

Although the Court conceded that regular job attendance is an essential job requirement, the court found that the lawsuit was not based on attendance requirements, but rather on the “100% healed” requirement that an employee must satisfy before returning to work. As a prerequisite to returning to work, the 12-month policy was a “qualification standard” and not an essential job function subject to accommodation. A “qualification standard” is “the personal and professional attributes, including the skill, experience, educational, physical, medical, safety and other requirements established by a covered entity as requirements an individual must meet in order to be eligible for the position held or desired.”

The court relied on the Seventh Circuit’s previous determination that a “100% healed” policy is per se impermissible because it “prevents individualized assessments” and “necessarily operates to exclude disabled people that are qualified to work.” A “100% healed” requirement limits the ability of qualified individuals with a disability to return to work. Thus, a “100% healed” acts as a prohibited “qualification standard” because it removes the opportunity for the employee to pursue reasonable accommodation, in violation of the ADA. Accordingly, the court denied UPS’s motion to dismiss and permitted the EEOC’s lawsuit to proceed.

Although this case does not provide a definitive answer to the EEOC’s lawsuit, it does provide a strong reminder to employers that “100% healed” policies violate the ADA. Employers should review their return to work policies to ensure that they do not contain “100% healed” requirements. When dealing with leave issues, employers also should remember to enter into the interactive process when necessary and balance obligations under federal, state and local disability and leave requirements, in addition to those created by contract or agreement.

Article by:

Geoffrey S. Trotier

Of:

von Briesen & Roper, S.C.

What Do You Get When You Cross March Madness With Insurance?

A chance to win one billion dollars. Quicken Loans and Berkshire Hathaway recently announced that they are teaming up to award one billion dollars to be shared by persons who correctly predict the winners of every game in this year’s men’s college basketball tournament. Quicken is running the competition and paying Berkshire Hathaway an undisclosed premium to insure the prize.

While this may be one of the largest promotions tied to a sporting event, it is just another example of a growing trend.

For example, during the 2013 Super Bowl, Beyonce’s halftime performance was just a precursor to a larger celebration for certain customers of Gardiners Furniture Company (“Gardiners”), a furniture company with locations in the Baltimore, Maryland area.

Baltimore Ravens return man Jacoby Jones took the second half kickoff one hundred and eight yards for a touchdown. As part of a Super Bowl promotion, Gardiners promised to give free furniture to customers who purchased furniture between January 31, 2013 and 3 p.m. on Super Bowl Sunday if a player returned a kick for a touchdown at the start of the game or after half-time. As a result of Jones’s dash, Gardiners gave away approximately $600,000 of free furniture.

Gardiners’ customers were thrilled and, according to Kasee Lehrl, the advertising and marketing manager at Gardiners, the company was “just as happy.” Kelcie Pegher, Gardiners Furniture Refunds $600,000 in Furniture on Super Bowl Bet, Carroll County Times, Feb. 6, 2013. That is because Gardiners reportedly paid $12,000 for an insurance policy in case the store had to follow through on its end of the promotion. According to Gardiners co-owner Gary Mullaney, it was worth every penny for the publicity and the winning feeling it gave his customers. Ron Dicker, Gardiners Furniture Store Loses $600,000 Super Bowl Bet on Baltimore Ravens Kickoff Return, The Huffington Post, Feb. 6, 2013. No doubt, Quicken and Berkshire Hathaway are enjoying similar publicity linked to their March Madness tournament.

Promotions tied to sporting events or other events of chance are limited only by the imagination of marketing teams. Some of the most common examples include:

Hole-in-one competitions;
Shoot the puck games;
Basketball shots;
Soccer or football kicks;
Sweepstakes; and
Scratch and win games

Contests such as these continue to increase in popularity and are becoming a staple of marketing departments. The size of the awarded prizes also continues to grow, resulting in an increased demand for prize indemnity insurance.

Prize indemnity insurance is a category of contingency insurance that works by transferring the risk of somebody winning the prize from the promoter to an insurance company. The insurance company calculates the cost of the insurance coverage based off of the probability of a winner. In case you were wondering, the chances of somebody predicting all sixty-three games in the men’s college basketball tournament accurately is approximately 1 in 9.2 quintillion (eighteen zeroes).

Typically, insurance carriers charge policyholders a premium of approximately five to twenty percent of the value of the prize being offered. However, the premium will vary based on the type of promotion and the statistical likelihood of the customers winning. The three most significant factors in determining the premium level are: (1) the difficulty of the promotion; (2) the number of attempts to win; and (3) the value of the prize.

Instead of keeping cash reserves to cover large prizes, the promoter pays a premium to the insurance company, which then reimburses the insured should a prize be given away. As a result, in exchange for the premium payment, there is no risk on the insured that the prize will be awarded.

As marketing departments increasingly utilize promotions such as these as another arrow in their advertising quiver, it is important that risk managers work in concert with their marketing department to ensure that financial risks to the company are properly managed. Increasingly, that includes purchasing prize indemnity insurance.

So remember, get your bracket in on time and GO BLUE!

Article by:

Jason S. Rubinstein

Of:

Gilbert LLP

Chief Litigation Officer Summit Spring 2014 – March 20-22, 2014

The National Law Review is pleased to bring you information about the upcoming Chief Litigation Officer Summit hosted by Marcus Evans.

When

Thursday March 20 – Saturday March 22, 2014

Where

Las Vegas, Nevada

America’s In-house Litigators Network and Benchmark in Vegas
Here are the nuts and bolts.

The summit is complimentary to in-house Chief Litigation Executives who come from companies with a minimum of $750 million revenue. Though titles also include AGC-Litigation, Head of Litigation, SVP/VP Litigation and so forth. Inquire within!
There are only around 100 total heads of litigation and all have similar profiles, which means similar challenges and opportunities. You will be meeting with and talking with some of the brightest thinkers in the legal industry
Speakers include:
Lily Yan Hughes, VP and AGC – Corporate, Ingram Micro Inc.
Eva Lehman, VP Litigation and Chief Compliance Officer, Western Digital Corporation
Frederick Egler Jr., Chief Counsel – Litigation, The PNC Financial Services Group
Steve Taub, Assistant General Counsel, U-Haul International, Inc.

And more

Your delegate package at the Chief Litigation Officer Summit includes all the essentials needed for a productive and rewarding event. As a delegate at the summit, you will receive:
A three-day streamlined agenda
Access to the secured event website
A comprehensive directory of solution providers
An experienced event management team
All meals and networking activities
Two nights’ accommodation at a luxury five star venue

For the event brochure visit: http://www.marcusevans-conferences-northamerican.com/chieflitigationofficer_assetpage

Contact Jenny Keane, marketing manager at
j.keane@marcusevansch.com
+1312-540-3000 x6515

The National Law Forum

2 more weeks until NAWL's 2014 Mid-Year Meeting – March 19-20 Washington D.C.

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