The National Law Forum

Exclusive Early Bird Discount Inside Counsel 14th Annual Super Conference – May 12-14, 2013

The National Law Review is pleased to bring you information about the upcoming Inside Counsel Super Conference.

REGISTER BY 12/31/13 FOR AN EXCLUSIVE NLR Early Bird Discount!

When

Monday, May 12 – Wednesday, May 14, 2014

Where

Chicago, IL

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.

No longer just providing legal counsel, in-house attorneys have become strategic business partners within their companies. They not only need to be influential in the boardroom, but must demonstrate the ability to make strategic decisions on both commercial and legal analysis. At the annual InsideCounsel SuperConference, you will:

Elevate your legal knowledge
Create innovation within your legal department
Change and evolve to become a better strategic partner

New Online Privacy Policy Requirements Take Effect January 1, 2014

California Online Privacy Protection Act (CalOPPA)

Owners of websites, online services or mobile applications (apps) that can be accessed or used by California residents should ensure their compliance with the new amendments to the California Online Privacy Protection Act of 2003 (CalOPPA) by the law’s January 1, 2014 effective date. The borderless nature of the Internet makes this law applicable to almost every website or online service and mobile application. Accordingly, companies should review and revise their online privacy policies to ensure compliance with the new law and avoid potentially significant penalties.

Previously, CalOPPA required the owner of any website or online service operated for commercial purposes (an “operator”) that collects California residents’ personally identifiable information (PII) to conspicuously post a privacy policy that met certain content requirements, including identifying the types of PII collected and the categories of third parties with whom that information is shared. The new law requires that companies subject to CalOPPA provide the following additional disclosures in their privacy policies.

How an operator responds to “do not track” signals from Internet browsers and any other mechanism that provides consumers a choice regarding the collection of PII about an individual consumer’s online activities over time and across third-party websites and online services. A company may satisfy this requirement by revising its privacy policy to include the new disclosures or by providing a clear and conspicuous hyperlink to a webpage that contains a description of any program or protocol the company follows to provide consumers a choice about tracking, including the effects of the consumer’s choice.
An affected company must disclose to users whether third parties may collect PII about a user’s online activities over time and across different websites when a consumer uses the operator’s website or online service. However, an operator is not required to disclose the identities of such third parties.

The California law does not require that operators honor a user’s “do not track” signals. Instead, operators must only provide users with a disclosure about how the website or mobile app will respond to such mechanisms. “Do not track” mechanisms are typically small pieces of code, similar to cookies, that signal to websites or mobile apps that the user does not want his or her website or app activities tracked by the operator, including through analytics tools, advertising networks, and other types of data collection and tracking practices. Further, the Privacy Enforcement and Protection Unit of the California Office of the Attorney General recently stated that the required disclosures should not be limited to tracking simply for online behavioral advertising purposes, but those disclosures must extend to any other purpose for which online behavioral data is collected by a business’s website (e.g., market research, website analytics, website operations, fraud detection and prevention, or security).

A violation of the law can result in a civil fine of up to $2,500 per incident. The California Attorney General maintains that each noncompliant mobile app download constitutes a single violation and that each download may trigger a fine.

Given that most company websites will have California visitors, companies should consider taking the following steps to ensure compliance with the CalOPPA amendments by January 1, 2014:

Identify the tracking mechanisms in place on your company’s websites and online services, including (a) the specific types of PII collected by the tracking mechanism and (b) whether users have the option to control whether and how the mechanisms are used and how the website responses responds to “do not track” signals by seeking input from those familiar with your website, including (i) technicians and developers who understand the mechanics of how the website operates, including how it responds to “do not track signals,” (ii) financial and marketing personnel who understand how user PII is monetized, and (iii) any other stakeholders who access or handle user PII.
Review the practices of any third parties that have the ability to track users on your website. To draft the new disclosures, you will need to understand how those third parties track your users and whether they are capable of doing so before or after the users leave your service.
Incorporate the information identified above to modify your online privacy policy to include the required behavioral tracking disclosures.
Retain the prior version of the policy in your records, including the date on which each version was posted to the site. The new version should have an updated effective date to distinguish it from the previous version.

Expansion of California’s Data Breach Notification Requirements

Under another new law taking effect on January 1, 2014, California will expand its data breach notification requirements by adding new types of information to the definition of “personal information” under California Civil Code §§ 1798.29 and 1798.82. The new law requires notification if a California resident’s personal information is compromised, and, as with CalOPPA, the breach notification requirements apply regardless of the location of the organization that sustains the breach. Therefore, to the extent that your business collects and retains California residents’ PII, then the amended California breach notification law would apply.

Previously, the California law required notification of a data breach in the event of the unauthorized access to or disclosure of an individual’s name, in combination with that individual’s (i) Social Security number, (ii) driver’s license or California ID number, (iii) account, credit or debit card number, together with a security or access code, (iv) medical information, or (v) health information, where either the name or the other piece of information was not encrypted. Under the new definition, “personal information” will also include “[a] user name or email address, in combination with a password or security question and answer that would permit access to an online account.”

Accordingly, if your business or organization collects this type of information, then it should consider undertaking the following proactive measures to reduce the risk and magnitude of a potential data breach:

Periodically and systematically delete nonessential personal information. By deleting obsolete PII and other sensitive information, businesses can significantly reduce the risk of a breach. Retaining such obsolete legacy PII serves no business purpose, but only adds unnecessary exposure and potential liability.
Conduct a PII inventory and perform a risk assessment of your security measures. Identify what PII is being collected by your organization, where it is retained, who has access to the PII and the security measures to protect the PII. Ensuring that sufficient protections are in place may not prevent every incident, but they can reduce the possibility of an incident occurring in the first place and limit the disruption to your business if there is a breach.
Limit the disclosure of PII to third parties only when necessary to provide services or products. You can be equally responsible for a data breach notification if the person or entity who experiences the data breach was a third party who received PII from you. Any vendor or third party with whom you share PII should contractually represent and warrant that they have in place certain standards for protecting that information and agree to indemnify your company for any loss that results from a breach.

Article by:

Matthew Cavanaugh

Bruce A. Radke

Michael J. Waters

Of:

Vedder Price

New Grants to Help More Students Pursue STEM (Science, Technology, Engineering, Math) Careers

Tonight, I’m announcing a new challenge to redesign America’s high schools so they better equip graduates for the demands of a high-tech economy. And we’ll reward schools that develop new partnerships with colleges and employers, and create classes that focus on science, technology, engineering and math – the skills today’s employers are looking for to fill the jobs that are there right now and will be there in the future. President Obama, 2013 State of the Union

In November 2013, President Obama announced a new $100 million competition launched by the U.S. Department of Labor to help American high schools prepare students for college and for careers in a 21st-century economy.

Computer Science Education Week is a perfect time to highlight this new administration effort — called Youth CareerConnect — to inspire and prepare girls and boys in communities across the country to be the designers, programmers, engineers, and innovators of the future through increasing their access to hands-on, real-world-relevant education and skills.

Through Youth CareerConnect, up to 40 grants will be awarded to partnerships between local schools systems, employers, community colleges or universities, and others that are committed to strengthening America’s talent pipeline and providing students with industry-relevant education to prepare them for college and careers.

Schools and their partners will be challenged to focus on addressing key shortages in “H-1B fields” — occupations tied to the H1-B temporary-visa program, which are predominantly in science, technology, engineering and mathematics.

This is an exciting investment that will prepare more American students to be the innovators, researchers, engineers, and entrepreneurs of the future. This initiative also, in part, answers a call by the President’s Council of Advisors on Science and Technology in its 2010 report on STEM K-12 Education, Prepare and Inspire, to increase the number of STEM-focused schools across the country.

Applicants will be judged on their efforts to serve a diverse student population, which will ensure access to preparation and training in the STEM fields for girls and minority groups currently underrepresented in many of these careers.

Importantly, the competition builds on the strong focus of OSTP and the White House Council on Women and Girls on increasing girls’ access to STEM fields and represents an important investment to both level the playing field for women and minority students and to provide them with the inspiration, access to career models, hands-on experiences, and rigorous curricula to prepare them to become the engineers, computer scientists and other STEM leaders of the future.

Success in this competition and meeting the broader challenge of giving all students access to real-world-relevant education experiences will require an all-hands-on-deck effort. That’s why Youth CareerConnect calls on businesses and institutions of higher education to join with school districts in putting together proposals to improve college and career readiness for more high school students.

Applications are due Jan. 27, 2014, so learn more at: http://www.doleta.gov/ycc/

By Danielle Carnival and Kumar Garg.

Editor’s note: The following has been cross-posted from the WhiteHouse.gov blog.

Danielle Carnival is a senior policy advisor and Kumar Garg is the assistant director for learning and innovation at the White House Office of Science and Technology Policy.

Article by:

U.S. Department of Labor

Sarah Palin and North Jersey Media Group Battle Over “Fair Use” of Famous 9/11 Photo

The iconic “Raising the Flag at Ground Zero” photo of firemen raising an American flag on September 11, 2001, which appeared on the cover of The Record newspaper and other newspapers on September 12, is at the heart of a lawsuit filed in Federal District Court in New York. The Complaint, filed by the owner of the copyright in the photograph, claims copyright infringement and false designation of origin for the unauthorized reproduction of portions of the photograph on the website for Sarah Palin’sfederally registered political action committee, www.sarahpac.com, and on her Facebook page,www.facebook.com/sarahpalin.

The suit claims that the photograph is being used by Palin and the other Defendants to raise money for her political action committee. The PAC website solicits and accepts financial contributions from supporters and accepts requests for Sarah Palin to make paid appearances at events, including media and campaign events, and Palin’s Facebook page provides links to this website. The owner of the copyright in the photograph also alleges that the use of the photo falsely designates the origin of the photograph and that its appearance on the PAC website and Palin’s Facebook page is likely to cause confusion mistake or deception as to the source or ownership of the photograph, falsely representing that Palin or the PAC owns the copyright when they do not.

Defendants have responded to the Complaint by moving to dismiss it on grounds of improper venue, failure to state a viable claim for false designation of origin, and fair use of the copyrighted photograph. Defendants’ content that their alleged “commercial use” is no different from the conduct of Google in its Google Books Project, which was recently held by the same court in which suit was filed to favor a finding of fair use despite Google’s general commercial focus. They argue further that since the photograph in question is “an iconic depiction of a compelling and unforgettable historic moment” that there is a public interest and demand for such newsworthy photographs, making its reproduction a fair use. As to the remaining fair use factors, it is argued that the cropped and altered version of the original photograph was used only “to provide a visual context for the accompanying text” conveying the message that the day should not be forgotten, and that the use has had no effect on the market for or value of the photograph itself.

Palin is not the first politician to be sued for copyright infringement in connection with political activities. As we have reported to you in the past, politicians in recent and not so recent campaigns have also been brought to task for the unauthorized use of copyrighted works.

It remains to be seen how this issue will be decided, and we will report back to you with all further developments.

Article by:

Susan Neuberger Weller

Of:

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

Medicare Physician Fee Schedule Final Rule Issued for Calendar Year 2014

The Calendar Year 2014 Medicare Physician Fee Schedule (“PFS”) final rule has been issued. The rule, over 1,000 pages in length, determines physician reimbursement for services provided to Medicare beneficiaries. Let’s take a look at just a few of the changes contained therein.

Payment Rates

Physicians will see a substantial decline in reimbursement – 20.1% – based on a statutory requirement which limits the amount of annual growth in physician payments. This requirement is known as the Sustainable Growth Rate (“SGR”). The President’s budget calls for averting these steep cuts, and since 2003, Congress has enacted legislation to prevent them. Congress is currently trying to create an alternative payment method which would include the permanent repeal of the SGR formula.

Primary Care and Chronic Care Management

CMS has stressed its support for advanced primary care physicians to address the needs of Medicare beneficiaries who have two or more significant chronic conditions. In 2015, Medicare will begin making separate additional payments to physicians for chronic care management services. Care management services include care plan development and implementation, patient and caregiver communication, and medication management. Medicare beneficiaries will be able to choose a physician or another eligible practitioner from a qualified practice to furnish chronic care management over 30-day periods.

Telehealth Services

Regulations describing eligible telehealth originating sites will now include health professional shortage areas (HPSAs) located in rural census tracts of urban areas as determined by the Office of Rural Health Policy. This change will result in more qualifying originating sites, which will improve access to telehealth services in shortage areas.

CMS is also developing a policy to determine geographic eligibility for originating sites on an annual basis in order to avoid mid-year changes to geographic designations, which often result in unexpected disruptions in telethealth services. In addition, CMS is updating the list of eligible Medicare telehealth services to include transitional care management services.

Application of Therapy Caps to Critical Access Hospitals

Prior to the passage of the American Taxpayers Relief Act of 2012, therapy caps were not applied to therapy services furnished in Critical Access Hospitals (“CAH”). The final rule, however, in conjunction with the American Taxpayers Relief Act, does subject CAH to therapy caps (currently set at $1,920 for 2014).

Physician Quality Reporting System (“PQRS”)

Eligible professionals will be able to submit quality measure data for the PQRS through qualified clinical data registries. These quality measures will be aligned across all reporting programs so that a physician need only report a measure once for all programs.

Most changes established by the PFS will take effect on January 1, 2014. CMS, however, will accept comments on the final rule until January 27, 2014.

Article by:

Anne-Tyler Morgan

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

Inside Counsel 14th Annual Super Conference – May 12-14, 2013 Early bird special

The National Law Review is pleased to bring you information about the upcoming Inside Counsel Super Conference.

REGISTER BY 12/31/13 FOR AN EXCLUSIVE NLR Early Bird Discount!

When

Monday, May 12 – Wednesday, May 14, 2014

Where

Chicago, IL

Elevate your legal knowledge
Create innovation within your legal department
Change and evolve to become a better strategic partner

Happy Holidays from the National Law Review!

Are You Ready for the Coming Explosion of Cybersquatting?

The next wave of domain-name barbarians is gathering outside the gates. Here’s what you need to do now to keep your trademarks, and your e-commerce, safe.

Almost every business has had to deal with cybersquatters – pirates that launch web sites designed to divert customers by using domain names that mimic the business’s trademarks.

Until now, the war has focused primarily on domain names within the “.com” sphere. But the battlefront is about to expand – dramatically.

The international body that runs the Internet (called ICANN) has recently begun releasing new generic top-level domains (“gTLDs”). In addition to the familiar “.com,” this program makes it possible to set up a business name, a trademark, a geographic designation – virtually any word in any language – as a gTLD in its own right. Almost 2,000 applications for gTLDs were filed, and more than 1,000 will ultimately be granted. Because many of the new gTLDs will sell domain names to all comers without any attention to whether they are violative of someone else’s trademark rights, they will create a giant new arena in which domain name pirates can operate.

So what should you do now to protect your brands and your domain names?

1. Lock up the family jewels.

ICANN has mandated the creation of a Trade Mark Clearing House, in which owners can list their registered trademarks. It has also required that all newly-released gTLDs offer a 30-day “Sunrise” period in which owners of marks listed in the TMCH get first crack at registering them as domain names. In addition, during the Sunrise period and for sixty days thereafter, other parties that apply for those marks will be advised of the TMCH listing and, if they pursue their application, the owners of the TMCH-listed marks will be notified, giving them an opportunity to invoke various dispute-resolution procedures.

The Trademark Clearance House is now in operation, and it makes sense for brand owners to list at least their “core” trademarks there. These are the marks in which you have invested the most time, energy, and money; the ones most closely associated with your business; the ones you have already had to protect most often in the .com realm.

2. Plan now to make preemptive registrations in gTLDs of particular interest.

An important limitation of the Trade Mark Clearing House is that it protects only against domain names that are identical to your registered trademarks, not to common misspellings, typos, and so on. This leads to a second important step: being prepared to file preemptive domain name registrations for common variations of your brand.

Now is the time to identify specific gTLDs in which you will be especially interested in and to watch for their release dates. For instance, if you’re in the auto industry you will likely want to be active in such gTLDs as “.auto,” “.car,” and the like. As soon as the Sunrise period for one of your identified gTLDs opens, be ready to file immediately. This is an instance where the best defense is a vigorous offense.

Many brand owners were caught unawares years ago when the Internet burst upon the scene, and control of brand-related domain names became crucial. There’s no way to stop the next wave of cyberpiracy. But there’s also no reason not to be prepared for it.

Article by:

John C. Blattner

Of:

Dickinson Wright PLLC

Employers’ Immigration Update – No. 12 December 2013

H-2B Employers Using Temporary Foreign Workers Not Required to Pay Supplemental Prevailing Wages

In a significant decision likely to have a major impact on H-2B employers, the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) has rejected the DOL’s attempt to apply supplemental prevailing wage determinations (PWDs) retroactively on employers who use H-2B temporary foreign labor. The action came in an Appeals Board Decision rendered on December 3.

Ninth Circuit Requires Reimbursement of H-2A Expenses

In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H-2A agricultural guest worker program, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled that an employer must reimburse an H-2A worker for the employee’s travel and immigration expenses in the initial week of employment.

Health History Can Block Entry to U.S.

A disturbing trend appears to have developed in the last few years in admissions review at the Canadian border. U.S. border guards reportedly are barring entry to anyone they deem a threat to themselves, others or their property based on the person’s personal health history. The Information and Privacy Commissioner of Ontario will “look into the matter to ensure that personal health information isn’t compromised.” One 2011 report states, “More than a dozen Canadians have told the Psychiatric Patient Advocate Office in Toronto within the past year that they were blocked from entering the United States after their records of mental illness were shared with the U.S. Department of Homeland Security.”

New E-Verify MOU to be Released

New Memorandums of Understanding (MOUs) for E-Verify will be released on December 8, 2013, according to USCIS. Current E-Verify users will not be required to execute a new MOU, but they are bound by any and all enhancements to the E-Verify program, including the new or revised MOU that applies to their access method; therefore, they should become familiar with the new or revised MOU that applies to their access method. Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment.

Restaurant Manager Indicted on Harboring Charges

The manager of a restaurant who failed to complete I-9s and provide housing for his workers has been indicted on harboring charges. The manager faces a maximum penalty of 10 years in federal prison and a fine of up to $250,000 for each count in the indictment. These charges illustrate that ICE techniques for worksite enforcement are not limited to I-9 inspections and fines.

Article by:

Sean G. Hanagan

William J. Manning

Davis C. Bae

Minnie Fu

Raazia K. Hall

Harry J. Joe

Of:

Jackson Lewis P.C.

Can Law Firms Get Business From the Internet?

Yes, but…

Law firms can absolutely get business from the Internet when armed with a strong plan and backed by an appropriate investment.

How Has Internet Marketing for Lawyers Changed?

The Internet is no longer dominated by single industry websites that people simply visit and read. Today, consumers can interact. They can browse a website, look at and comment on a firm’s Social Media pages, view a law firm’s rating and write their own review.

Business from the Web

A few years ago, a law firm could set up a website, do some on-page search engine optimization (SEO) work, add a few links and get site rankings and cases. Today, search engines look at a variety of factors to determine if a site has value. Search engines look at content to ensure that it is relevant and has true value. They look at visitor activity. They analyze incoming links for quality and relevance. They look at a law firm’s online presence, including other websites and social signals.

The potential for attracting new clients through the Web is tremendous. While other advertising mediums are shrinking, the Web’s growth continues to be explosive. Law firms that take the right approach and are selective in choosing their vendors are drawing more clients and cases to their firm.

What Should Law Firms Seek in a Web Marketing Vendor?

Law firm SEO vendors who have been watching the Internet as it changes know what it takes to make a practice succeed online. When searching for the right vendor, look for one with proven success and a team of experts.

Successful Internet marketing for lawyers requires more than just a designer with an eye for professional flair. The vendor should customize websites and SEO campaigns. Some of the larger vendors employ great salespeople, but clients are provided with cookie-cutter designs and template SEO processes.

Your marketing provider should be legal specific. The firm should not have to push the vendor through projects to get work accomplished. The vendor should understand and be able to easily navigate the world of legal marketing. The vendor should have licensed attorneys who understand and can navigate the ethics of law firm marketing. Prior to hiring us, one of our clients had been forced to spend more than twelve painful months and significant staff-time to launch his site.

Look for a Web marketing company with sufficient staff to support your campaign. The staff should include professional designers, attorney content managers, programmers, a Social Media team, marketing consultants and strong account managers.

The best vendors are those that endeavor to be a law firm’s partner, not just a vendor. When you find a company that gives your firm the personalized attention it needs, they can be a true asset. This type of vendor will grow with your firm instead of making a sale to you and then going down the street to sell to your competitors. They commit to your firm’s long-term success and return on investment.

What Kind of Return Does Internet Marketing for Law Firms Offer?

If law firms are partnering with the right SEO vendor, there can be huge return on investments for the firm. One of our clients, Ken Hardison, receives a 10 to 1 return on every dollar he invests. Another client recently settled a case the firm acquired from the Internet for close to $10M. Our Motor Vehicle Accident, Social Security, Workers’ Compensation, Family Law and Bankruptcy clients receive several cases from the Web each month.

Today, very few prospective clients go to the Yellow Pages to find a lawyer or law firm; they search on the Internet first. Achieving a successful ROI through online marketing takes time and strategy, but there are solid results available to those to who invest properly. We work hard for our clients to rank high in the search engines and have compelling websites so they will get the call.

Article by:

Consultwebs.com, Inc.

Of:

LeAnna Easterday

The National Law Forum

Exclusive Early Bird Discount Inside Counsel 14th Annual Super Conference – May 12-14, 2013

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New Online Privacy Policy Requirements Take Effect January 1, 2014

California Online Privacy Protection Act (CalOPPA)

Expansion of California’s Data Breach Notification Requirements

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New Grants to Help More Students Pursue STEM (Science, Technology, Engineering, Math) Careers

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Sarah Palin and North Jersey Media Group Battle Over “Fair Use” of Famous 9/11 Photo

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