ABA's Fourth Annual National Institute on Criminal Enforcement of Intellectual Property Rights November 5th San Francisco, CA

The National Law Review is proud to support the ABA’s Fourth Annual National Institute on Criminal Enforcement of Intellectual Property Rights November 5th at the Hotel Nikko in San Francisco, CA. 

This comprehensive, one-day program will provide in-depth information concerning the complex issues that arise in connection with criminal enforcement of intellectual property rights (primarily involving trade secrets, copyright, and trademarks). The program consists of five panels whose members are key government insiders; policy makers; Assistant U.S. Attorneys; defense counsel; trade group leaders; and rights holders. Panel topics focus on current issues, trends, legal strategies, private industry case development and criminal referral, parallel proceedings and ethical issues in intellectual property enforcement.

This program brings together defense attorneys, prosecutors, members of law enforcement, policy makers, and business leaders to discuss hot topics and legal trends in the rapidly evolving field of intellectual property enforcement.

Mandatory continuing legal education (MCLE) accreditation has been requested from all states which require continuing legal education. 5.75 hours of CLE credit have been requested from those states recognizing a 60-minute credit hour and 6.90 hours of CLE credit have been requested from those states recognizing a 50-minute credit hour.

For more information & to register – click here:

Peeled, Inc. Seeks Injunction, Damages in Trademark Infringement Suit Against Peeled Fruit LLC

This week’s featured blogger at the National Law Review is Jonathan C. Stagg of Stoel Rives LLP who writes an interesting tale about a fruity trademark infringement case. Read On: 

Peeled, Inc. (“Peeled”) www.peeledsnacks.com, a company specializing in healthy, natural snack foods including dried fruits and dry roasted nuts, recently filed a trademark infringement suit in the United States District Court for the Southern District of New York against Peeled Fruit LLC (“Peeled Fruit”) www.simplypeeled.com.  Peeled Fruit sells frozen soft-serve fruit, with fresh fruit toppings. Peeled alleges that Peeled Fruit is attempting to cash in on the brand awareness and goodwill associated with Peeled’s marks.

Peeled began marketing its products under the marks “Peeled,” “Peeled Fruit,” and “Peeled Snacks” as early as 2004. Since that time, Peeled’s marks have received extensive coverage in television and print media, including receiving a coveted spot on Oprah’s O List as one of Oprah’s favorite afternoon snacks, and receiving the 2008 “Best of Food” award from Health Magazine. Peeled registered the mark “PEELED SNACKS” on January 10, 2006 with the United States Patent and Trademark Office.

Peeled alleges in its complaint that long after it began marketing its products with the Peeled marks, Peeled Fruit began infringing on the marks by using the words “Peeled” and “Simply Peeled” in its marketing materials. Peeled argues that Peeled Fruit sells similar products with similar ingredients, and that as a result the products are confusingly similar. Peeled claims that Peeled Fruit had full knowledge of Peeled’s prior use of the marks, and that in spite of Peeled’s requests, Peeled Fruit has refused to cease its use of the marks.

Peeled alleges that Peeled Fruit not only knew about Peeled’s use of the marks, Peeled Fruit “adopted the trademarks with the intent to trade and capitalize on the goodwill generated by Peeled, Inc.’s extensive and widespread use of its trademarks, as well as its extensive sales, advertising and consumer acceptance and recognition.” Peeled argues that the similarities between the products sold by both companies make the shared use of the marks likely to cause confusion, mistake and deception among consumers.

As a result, Peeled is seeking an injunction against Peeled Fruit, which would restrict Peeled Fruit from further use of the marks. Peeled is also seeking a monetary damage award, under federal trademark law (15 U.S.C. § 1117), in an amount equal to either 1) three times the amount by which Peeled was damaged by the alleged infringement, or 2) three times the total profits Peeled Fruit obtained from the use of the allegedly infringing marks.  Finally, Peeled is seeking an order from the court, under 15 U.S.C. § 1118, requiring Peeled Fruit to destroy all materials that display the allegedly infringing marks.

Reposted with permission from Stoel Rives’ Essential Nutrition Law Blog.

Copyright 2010 Stoel Rives LLP

Authored by:

Jonathan Stagg is an associate practicing in the Corporate, Securities and Finance section of the firm’s Corporate group. Jonathan assists clients with mergers and acquisitions, business formation, public and private offerings, venture capital and general securities law compliance. www.stoel.com / 801-428-6338

ABA 13th Annual National Institute of Banking Law Basics Oct 27 -29 Boston, MA

The National Law Review is proud to support the American Bar Association Business Law Section, the ABA Center for Continuing Legal Education, and the Morin Center for Banking and Financial Law of Boston University School of Law‘s two-and-one-half day primer on banking law. If you need the basics, you can’t afford to miss this program. Attendance is limited. 

Attend this program and learn what you need to know about:

·         Who regulates whom, why and how

·         The structure and intent of bank regulation

·         The impact of Gramm-Leach-Bliley and Dodd-Frank

·         The role of capital

·         Prudential limitations

·         Permitted investments and activities of banks, bank holding companies and financial holding companies

·         Insurance, securities and capital market activities of banks and bank affiliates

·         Geographic expansion and mergers and acquisitions

·         Supervision and enforcement

·         Failing banks and actions against affiliated persons

This fundamental banking law course was developed to provide practitioners with an understanding of the basic laws and regulations governing banks and bank holding companies. This course is a comprehensive introduction to banking law regulation for attorneys, consultants, and bank professionals who intend to work in the field. It is also a refresher course for experienced banking law practitioners whose practice has not provided an opportunity for the broad exposure that this course offers. This course includes a two-hour segment on ethical considerations in the representation of banking organizations.

Date: October 27 — 29 2010
Location: Boston University School of Management
Fl 4 – Executive Leadership Ctr
595 Commonwealth Ave
Boston, MA 02215-1704
USA
Requested CLE Credit: 18.50

For More Information and to Register: Click Here.

Are Alternative Fee Arrangements (AFAs) the New Standard for Law Firms?

From the National Law Review’s Business of Law guest blogger, Meredith L. Williams of Baker Donelson Bearman Caldwell & Berkowitz, PC discusses the current legal marketing ‘it’ topic – alternative fee arrangements or AFAs.  Meredith provides a great historical perspective on this topic and goes into nice detail on how law firms should address this new hot issue.  Read on: 

The Supreme Court of the United States answered this question when they released the opinion for Perdue v. Kenny A. In this case, the Supreme Court rejected the statement “departures from the hourly billing are becoming more common.” In addition, the court noted “if hourly billing becomes unusual, an alternative to the lodestar method [hours worked times billing rate] may have to be found. However, neither the respondents nor their amici contend that that day has arrived.”

Are AFAs new?

Although the U.S. Supreme Court stated hourly billing is the usual practice, alternative fee arrangements remain a growing trend in law firms. From 2008-2010 law firms have seen an increase in AFAs from 4-16% (Source: CounselLink). However, the question remains are AFAs new or are they a natural evolution?

Alternative fee arrangements have existed for decades in many law firms. Examples include blended rates, contingency fees, fixed fees, capped fees, collared arrangements, etc. Although the concept of AFAs is not new, the push to offer more alternative arrangements has never been more prevalent in law firms as it is today. Key drivers of this shift are the economy, the ACC Value Challenge and the clients demand of more risk sharing and consistent, transparent, value-based project pricing.

The ACC’s Value Challenge is based on the concept that law firms can improve the value of delivering legal services without increasing the cost. For law firms, this concept alters and increases the focus on efficiency in the delivery of those legal services. This new focus on efficiency creates a demand to price legal services, manage the legal work process, manage the right talent and form a strategic alliance with clients to improve the service delivery. Clients are now looking for transparency and true cost control. AFAs are the new way of delivering on these demands.

Ultimately, alternative fee arrangements are about risk sharing. With the economic and global shift, clients and companies are now in the driver’s seat. They are attempting to shift more risk of legal service delivery to law firms. However, law firms are only agreeing to this risk transfer as long as the arrangements are still profitable.

What do law firms do now?

As AFAs become more common, how can a law firm compete in this area? Law firms must understand the different sides to alternative fees – estimation and management – and align their firm strategies to these areas.

First, firms need to learn to estimate the cost of legal services. Estimates and budgets must now be based on cost rather than billable rates. Firms are beginning down this path of price estimation with many different budget and estimation tools that are new to the market. A standard starting point is data mining previous matters of similar nature of suit. This process provides an accurate view of prior costs for a type of service. However, using historical data can also show the inefficiencies in those former processes. Finally, the data mining of former data can be incredibly difficult if law firms have not previously used phase and task billing codes in their time entry system.

Next, firms must learn to manage the alternative fee arrangements effectively in order to remain profitable. Budgeting tools, case management tools/ strategies and process analysis are key pieces to this phase. As stated above, there are many new budgeting tools to the market that now help law firms manage budgets and control expenses. However, most tools rely on the use of phase and task billing. In addition, law firms are now considering strategies to aid their attorneys and staff in the understanding of legal project management. This is a difficult task to accomplish because lawyers are not project managers by nature and the norm is not to look at legal work in phases or tasks. Finally, firms are looking at any and all tools that exist within their firm our outside their firm that can aid in efficiency. Things such a document assembly, form production, expertise databases, case/deal management software and extranet collaboration with clients are just a few tools that firms are considering. When an alternative fee arrangement is used, without management of the budget, deal/case and processes, the risk of profitability loss now falls to the law firm instead of the client.

What will change?

The largest change seen by law firms is that billable rates are no longer the driver of profitability. Firms have previously been raising rates at a 6-8% increase with each passing year. With the economy, the practice of raising rates had to change. We now live in a buyers-market for legal services. Clients no longer stand for the standard rate increases but instead now look for a strategic partner. Additionally, the entire law firm model on compensation and partner track are called into question with the change from billable hour and rates. Firms that move to alternative fee arrangements need to look to alternative metrics and measures for compensation, partner track, staffing and bonuses. Some firms are turning to metrics such as overall performance, expense management, practice management, client development, and leadership skills instead of the maximum billable hours.

Conclusion

In conclusion, alternative fee arrangements are not the new standard for law firms in 2010. Currently, AFAs only make up 10-16% of business. However, just as we saw this percentage increase from 2008 to 2010, we expect a further increase over the coming years. In order to stay competitive, law firms must determine their stance and strategy with AFAs and learn to remain profitable in this changing time.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

About the Author:

Meredith L. Williams is Baker Donelson’s Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 901-577-2353 /www.BakerDonelson.com

Testing the Limits of Applicant Testing

The potential legal pitfalls of job applicant testing are illuminated by the National Law Review’s featured blogger Sarah L. Hinkle of Steptoe & Johnson PLLC.  Read on:  

Many employers believe that applicant testing – skills, personality, or honesty testing, for instance – is an easy way to screen out undesirable job candidates. Besides, all employers want highly skilled, easy to work with, honest, and sober employees … and what better way to rate a candidate than to subject him or her to a test, right? Not so fast! Applicant testing is fraught with potential legal pitfalls, and caution must always be exercised before engaging in any kind of applicant testing.Anchor

For example, while tests can be very effective tools for finding qualified applicants, employers must be aware that some tests or selection procedures can violate state and federal anti-discrimination laws. Worse, this can occur even if the employer does not intend to do so, such as when a “neutral” test or other selection procedure disproportionately excludes people in a particular group by race, gender, national origin, religion, disability, age, or any other protected classification, unless the employer can justify the test or procedure by showing that it is “job-related and consistent with business necessity.”

The seminal case examining the unintentional “disparate impact” discrimination found in some testing techniques is Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the employer instituted a requirement that applicants at a power plant must either have a high school diploma or pass a general intelligence test in order to be hired. The Court found that the requirement was discriminatory because the employer could not show that the requirement bore a “demonstrable relationship to successful performance of the jobs for which it was used.” The full text of Griggs, by the way, can be found at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html

Keep in mind that pre-employment screening which merely has a discriminatory impact isn’t the only type of applicant testing employers need to be careful with. Certain other pre-employment testing may be found unlawful regardless of intent, such as requiring medical examinations of applicants before providing them a conditional offer of employment.

With due caution in mind, consider the following when deciding whether to begin using or continue using pre-employment testing procedures:

  1. Most obviously, but also most importantly, never use testing or any other selection procedure for the purpose of “weeding out” members of a protected class.
  2. Do not casually adopt testing procedures, and make sure decisions regarding testing are made at high levels of your company after consulting with counsel.
  3. Make sure that any tests or selection procedures that you use are valid and reliable. That is, make sure that the test actually measures components or characteristics that are necessary for the job position, that the test is truly useful in predicting success on the job, and that it yields consistent results. Do not assume that a test-maker vendor’s supporting documentation is entirely accurate – do your own investigation as well.
  4. Be vigilant as to changes in job requirements so that you know when you need to update test specifications or selection procedures.
  5. Accommodate people with disabilities by modifying the test or testing conditions or eliminating the testing requirement if necessary.
  6. Do not rely solely on tests for making decisions about candidates; use them as one component of your overall selection procedure.

If an employer remembers the above tips when evaluating current testing practices or when considering implementing new selection procedures, it will go a long way towards making sure the company gets a passing grade of its own.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author – Sarah L. Hinkle:

Sarah Hinkle focuses her practice in the areas of labor and employment law.

304-262-3542 / www.steptoe-johnson.com

How Extensive Is Your Experience? Insights on Law Firm Website Text.

Sonny Cohen of Duo Consulting   provides some food for thought about the same old – same old law firm website text. From Last Week’s Business of Law at the National Law Review: 

It is common for law firm websites to speak about themselves with hyperbole.  Self-important adjectives litter the site content.  Firm’s with exceptional people are one-upped by those with truly exceptional people.  Knowledge is only valid if it isgenuine. Experience, it seems comes in a variety of flavors as well. Some firms havewide experience.  For others it is deep experience.  But the most common benchmark of experience is that it be extensive.  Does your firm claim extensive experience?

Now it’s not that I don’t believe it when I read of a professional’s extensive experience. It’s just that this really doesn’t tell me anything. Worse, it doesn’t tell me anything different from the next guy who also has extensive experience. In fact, I would argue, my baseline is extensive experience. Now tell me how you’re better.

If you Google the phrase “extensive experience” there are over 6 million website pages where this value is claimed.  Using the search tool on several law firm websites, I discovered an “extensive experience” ratio of about  35% – 50% (# of appearances of “extensive experience”/attorney). So making this claim doesn’t so much separate one professional from the pack as much as it defines the pack. (Check your firm’s ratio and let me know!)

But the problem with this “extensive experience” language is not merely that it is linguistic laziness. Rather, this laziness results in failing to detail the richness, complexity and detail which this phrase references. And in so not doing, opportunities are lost for using this missing content.  You won’t be found in a search engine because, frankly, nobody is looking for “extensive experience.” And you won’t be discovered in your site search because, well, almost half of all attorneys have the same vague amount of experience. And it is all extensive.

Yes, I understand that, often, considerable descriptive detail must be concealed for privacy considerations.  Yeah, so? Content developers (copywriters) simply have to work harder to anonymize those involved. But, with a little effort, it is possible and essential to provide sufficient detail to make the stories comprehensible and relevant – and content rich.

Go the extra mile to gather the detail that elicits that sense of extensive experience. Boil it down to 3 to 5 cogent bullet points of industry and matter relevance. And post it. Your site visitor will have a better experience. This will result in more web pages consumed and possibly a longer time on the site with more opportunity for engagement. And search engines will devour the details for their ranking algorithms.  And you know how I know this? I have extensive experience.

© 1999-2010 Duo Consulting

About the Author – Sonny Cohen:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing

Sonny has over 30 years of business management and marketing experience,  He was a Serial entrepreneur and business marketer as an Apple Computer reseller; Internet partner in the business consulting firm Friedman, Eisenstein, Raemer and Schwartz; Director of Business Development for startup Primecom, an online e-commerce application service provider; and Director of Marketing for NextPart, Inc..  312-529-3003 / www.duoconsulting.com

The Ten Commandments of Drafting a Social Networking Policy

The National Law Review’s featured Guest Bloggers this week are from Steptoe & Johnson PLLC. Vanessa L. Goddard provides some concrete do’s and don’ts for drafting a company Social Media policy.  Read on:

You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:

NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.

While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.

NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.

If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.

NUMBER THREE: Thou SHALT know the risks and guard against them.

Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.

NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.

Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.

NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.

The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.

NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.

Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.

NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.

The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.

NUMBER EIGHT: Thou SHALT know the consequences of thy actions.

Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.

NUMBER NINE: Thou SHALT spread the word throughout the masses.

Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.

NUMBER TEN: Thou shalt NOT commit random acts of destruction.

You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author:

Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.  304-598-8158 /www.steptoe-johnson.com

WordPress Search Spam

A helpful article for all Word Press Users out there from the National Law Review’s Business of Law weekly guest bloggers – Duo Consulting.  Scott Frazer of Duo goes over a Spam issue that impacted Duo’s Blog and provides a detailed solution on how they fixed the problem!

Our blog was recently affected by a rather clever little hack, and when I went searching for ways to remove it, I couldn’t find much. Here’s a brief writeup of what happened and how I fixed it.

Our Director of Internet Marketing Strategy, Sonny Cohen, spends some of his time searching Google and other search engines for keywords relative to our business. He began noticing that some of those results, while they would return pointers to our blog, were laced with keywords and links to various male enhancement drugs. When I searched our blog for these references, I couldn’t find anything.

Here’s what I was seeing when I would search our blog for the phrase “test”:

But here’s what Google was seeing when it did the same search:

You may notice that the URL in that is to a local file. There are two ways you can see what your site looks like to Google. One is to change the User Agent on your browser to match that of the Googlebot. The other is to use the Webmaster Tool’s “Fetch As Googlebot” lab utility. I used the latter, and saved the resulting report as an HTML file and then opened that file in Chrome.

So why is Google seeing different results than anyone else who visits my site and runs that query? Something different must be happening when Google visits. I started running through the execution path of WordPress. The first file that is accessed is index.php. All this file does is turn on a theming variable and load wp-blog-header.php. So I moved on to that file. It looked like this:

if ( !isset($wp_did_header) ) {
$wp_did_header = true;
require_once( dirname(__FILE__) . ‘/temp.php’ );
require_once( dirname(__FILE__) . ‘/wp-load.php’ );
wp();
require_once( ABSPATH . WPINC . ‘/template-loader.php’ );
}

temp.php? Never heard of it, let’s see what’s inside:

eval (gzinflate(base64_decode(
‘vVhtc9pGEP6emfwHRfUUmGLg9IbkhNrUJrZnEsfFOGmKXc1ZOoMmQqInYYea/Pfu’
.’nnjRG6aZzNRj0Em7++yzu3erOw5/fXM4HU9fvnj5Ym8cRnFnz77q9T/2+sPK2WBw’
…snip for length…
.’6reTZEAXdDrl4QNzE/3F3Wy+iKjPxFe0gH7G+ML1IiecBfHiY+LyWLhsVmDlrQ7g’
.’cvonDPkW65UOKh6zCWuM44kvFr6Ialmvw1/fHP4L’
)));

Now that looks evil. Obfuscated code can’t be good. I decided to see what it does by replacing the “eval” with “print” and then I ran “php test.php” from that directory. The results are very long, but you can see them here.

Basically, the program tries to determine if we are a real person or a search engine bot by looking at things like our IP address and our user agent. If it determines we are human, it goes ahead and returns the standard header. If we’re a bot, it serves the content in “theme.html” which is identical to the second screenshot above.

So to clean things up, I removed the reference to temp.php from wp-blog-header.php, deleted the file temp.php and deleted the file theme.html.

© 1999-2010 Duo Consulting

About the Author – Scott Frazer:

Scott supervises Duo’s network facilities, monitoring hardware and software, analyzing problems and ensuring that the network is fully operational. He works closely with clients to identify, interpret and evaluate their system requirements. He also provides the front-line defense of the Duo network by planning, coordinating and implementing network security measures. An avid Mac user, Scott is nonetheless happy to keep Duo’s servers running on Windows Server 2003 and Ubuntu Linux.

Scott has been working in network administration with Internet companies for over ten years. He has experience designing and maintaining networks and server farms for high-traffic sites in both the hosting and e-commerce arenas. As the senior system administrator for MusicToday, an online ticketing, merchandise and fan club portal, he was responsible for the stability and security of large-volume e-commerce sites, including websites for the Rolling Stones, the Grateful Dead and the Dave Mathews Band. www.duoconsulting.com / 312-529-3006

Assessing Your Current Leases for Implementation of LEED®

Recently featured on the National Law Review as a featured blogger Hannah Dowd McPhelin of Pepper Hamilton LLP reviews some things to look for in your company’s leases as related to LEED  implementation. 

If you are the owner of a multi-tenant commercial building and you are considering implementing LEED or another green building rating system, consider these four aspects of your existing leases before making the leap.

First, what costs associated with new sustainability efforts can be shared with the tenants?  A threshold issue in your decision to implement new measures will likely be cost and whether any of the cost can be shared with tenants.  Take stock of what expenses are permitted to be passed through to tenants under the current leases.  In particular, consider the treatment of capital expenditures and similar “big ticket” items.  A lease may allow at least some of the cost (perhaps on an amortized basis) of capital expenditures that are energy saving devices to be shared.

Second, what latitude do you have to impose new operational procedures on the current tenants?  A common example of a new operational procedure is a recycling program.  A good rules and regulations provision will be helpful here because it may allow you to stretch the four corners of the lease a bit to add new sustainability measures and ensure tenants’ compliance.  If you are planning to pursue certification or recognition through LEED or another green building rating system, then this will be an important consideration as the tenants’ compliance and cooperation may mean the difference between achieving certification and not.

Third, where will sustainability defaults fit into your leases’ current defaults and remedies provisions?  With respect to sustainability measures that are law, it is often appropriate for you to mandate tenants’ compliance.  For those measures that are not yet law, consider whether your tenants have an obligation to comply under the leases and when noncompliance becomes a default.  It is likely that any noncompliance would be a covenant default, which may be subject to a longer notice and cure period.  Practically, consider what remedies you are willing to exercise for noncompliance with sustainability measures.

Fourth, which party will reap the benefits of any rebates, credits or other incentives that accrue due to the new sustainability efforts?  Often, a standard lease form will not address the allocation of these items.  It is often assumed that the landlord receives the benefit but consider your tenants’ contributions to your sustainability efforts and also consider that for tax purposes and otherwise each party may benefit more from certain incentives.

Finally, and perhaps most importantly, you must communicate with your tenants and they must buy in to this process.  It will make the implementation of sustainability measures infinitely easier if your tenants are on board and enthusiastic – involve them early and often so they can share in the success of your building’s transformation.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. McPhelin is an associate with Pepper Hamilton LLP, resident in the Philadelphia office. Ms. McPhelin concentrates her practice in real estate matters and other business transactions, including the acquisition and sale of commercial real estate properties and leasing of office, retail, warehouse and industrial space, representing both landlords and tenants. She is a LEED® (Leadership in Energy and Environmental Design) Accredited Professional and a member of the firm’s Sustainability, CleanTech and Climate Change Team.  215-981-4597 /www.pepperlaw.com

Is Your Email Service Provider the Best?

This week’s Business of Law Guest Bloggers at the National Law Review are from Duo Consulting.  Sonny Cohen of Duo provides some good specifics on what to look for in an emailing service.

We recently received this question from a law firm marketer. I’ve edited it slightly for brevity and anonymity:

“Our email service is earning a big #fail at this point. We’ve used (Name Brand provider) with great success for small jobs and I’m talking with them about an enterprise solution. Do you have a provider you love (or a crappy one I should be warned away from)? What are the pros and cons of the systems you’ve used?”

The question, submitted to a listserv, engendered responses of affiliation with one ESP or another because they liked them, had no problems, or other good indications of service. But email delivery is more complex than you might first imagine and one size does not fit all. It is not (yet) a commodity. Personal recommendations of quality service or indications of being satisfied are a good start of an evaluation but an insufficient qualifier for engaging an email service provider. Like the acquisition of almost any service (legal or technical) it is important to understand requirements.

This is not intended to be comprehensive but merely to illustrate my point. Get this part and you might get there is more to the story. So let’s take a look at these simple factors:

  • What does your email subscriber base look like? gmail.com? or bigcompanyname.com?
  • How big a mailing would you execute at one time?
  • What is your mailing frequency?

If you send a lot of email frequently to corporate email addresses, the email reputation is critical to getting into the inbox of your subscriber. The better email service providers (ESPs) do 2 things. First, they manage the reputation of the email addresses from which they send the email (their IP addresses). The best ESPs offer you the opportunity to set up your own email address on their system. This will look something like email.lawfirm.com and email will come from something like sonny@email.lawfirm.com So while it still looks like your business, it is isolated from your domain (lawfirm.com) and from the email sending behavior or misbehavior of other clients of this ESP. Are you with me?

What happens if you send an email to a lot of people at the same domain such asxxxx@client.com where xxxx is lots of different people? When all these emails show up @client.com at one time, they look like spam. It may even look like an attack on the email server. The corporate email server receives these emails so you probably see these emails as being delivered. But they never make it into the inbox of the individual email recipients.

The better ESPs offer the capability to throttle the sending of emails so that they don’t look like a spam attack on an email server. It more closely resembles natural email commerce. Good commercial ESPs can afford to throttle the send of their emails. Spammers cannot because they’ve got way too much email to send. Are we getting esoteric yet?

ESPs are commercial companies and not a part of any website development company’s core competency. We have our favorites but we are not linked at the hip. Email services built into CRM systems such as Interaction, Salesforce, etc. are bulk mailers and do not have these deliverability features and a deliverability desk (personnel) focused on managing IP reputation. This doesn’t make them bad by any stretch. But it does affect deliverability performance.

Finally, the best ESPs are becoming messaging companies capable of delivering text messages and voice messages. If your communication strategy is to be first to market with targeted information, you may find that a text message alert system is a client service you haven’t yet considered. It is unlikely that your “economy” bulk email guy who is “friendly to deal with”  offers these extended and diversified contact capabilities. And maybe you don’t need it and never will.

Being able to track email performance is a common feature but it is not the test of a quality system. And these tools may not even provide accurate or complete information regarding the effectiveness of your email marketing campaigns. Even the best (i.e. more costly) ESPs come only close to precise. Third party firms like Return Path and Pivotal Veracity might provide this higher level of email evaluation and deliverability improvement.

Price is not always a guarantee that you will get better delivery services like what I’ve identified above. But a low price pretty much guarantees that you will not. For my part, I think reaching targeted contacts for a few pennies is a pretty good deal. If you are driven to cut that penny in half, you should at least know what you are getting and what you aren’t.

Whew! Hope this is helpful. Oh yeah, who do we use? ExactTarget. But remember. One size does not fit all. Think about your requirements.

Email open rate is only one indicator of email success

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About the Author:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing.

312-529-3003 / www.duoconsulting.com