NLR Winter Law Student Writing Contest

The National Law Review is pleased to announce the commencement of the Winter Law Student Writing Contest:

The National Law Review (NLR)consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site. No entry fee is required. Applicants can submit an unlimited number of entries each month.

Winning submissions will initially be published online in November and December 2011.
In each of these months, entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Why Students Should Submit Articles:

Students have the opportunity to publicly display their legal knowledge and skills.
The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
For an example of a contest winning student written article fromNorthwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

November 2011 Feature: Intellectual Property law, Tax law and Labor & Employment law. (Submission deadline: Monday October 17th , 2011)
December 2011 Feature: Healthcare law, Financial Institution law andBankruptcy and Restructuring law. (Submissions deadline: Monday November 14th, 2011)

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containinguseful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

Format – HTML (preferred) or Microsoft^® Word
Length – Articles should be no more than 5,500 words, including endnotes.
Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
Author Biography/Law School Information –Please submit the following:
1. Full name of author (First Middle Last)
2. Contact information for author, including e-mail address and phone number
3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com.

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media. All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Congratulations to our Spring 2011 Law Student Writing Contest Winners!

Spring 2011:

Happy Birthday National Law Review!

The National Law Review Marks Second Year of Online Publication with Highest Daily Volume of U.S. Visitors among Legal Sites of Its Kind

CHICAGO–(BUSINESS WIRE)– The National Law Review (www.NatLawReview.com), the fastest growing free, online database of legal analysis, marks its second year on a high note with its numbers continuing to increase, both in article contributors and in readership.

The database today announced that in its second official year of online publication, it has increased its readership for more than 60,000 page views per month and now experiences one of the highest daily volumes of U.S. readers among sites of its kind, as measured by third-party groups like Alexa/Amazon and Quantcast.

Launched in 2009, The National Law Review provides in-house counsel and other business professionals, including small business owners, with free, easy access to analysis of pressing legal issues through its pnline database. Top law firms, law schools and professional organizations contribute articles to the site, and The National Law Review helps legal consumers quickly locate this analysis for no charge and without a log-in or password.

“We are thrilled to have reached such significant milestones so early on and feel this growth is a result of the needed service we provide to both in-house lawyers and law firms,” said Jennifer Schaller, co-founder of The National Law Review and a former in-house attorney. “With our database, we put things in the hands of in-house counsel and professionals, allowing them to find the timely and well-researched legal analysis they need, when they need it, saving them time and money. And for law firms, we provide an effective and affordable way to share their expertise, opening them up to a whole new world of readers and potential clients.”

More than 100 organizations contribute their articles to The National Law Review, including AmLaw firms as well as boutique firms, law schools and professional organizations. In addition to publishing these contributors’ articles on its site and including them in its database, The National Law Review systematically promotes them through alliances with bar associations and professional associations and through social media outreach.

When an article appears on The National Law Review’s site, it gives the author(s) continuing opportunities to be read and brings attention to their expertise. Due to The National Law Review’s selection process, third-party credibility is added and articles are routinely referenced by mainstream media, bloggers and professional associations. Some Websites, including media sites, often pick up articles and place them on their Websites, which gives the contributors even greater readership and promotion opportunities.

“When we first were working on this idea, we knew it would be a powerful legal research tool, but we were not aware of how many opportunities an article would have to be read,” said Schaller. “It has truly exceeded our expectations in terms of the reach our contributors gain with each article that is posted. It’s been wonderful seeing it develop and exciting to see it continuing to grow.”

Based in the Chicago area, The National Law Review is a free and easily accessible database of timely and authoritative legal analysis contributed by many of the nation’s premier law firms, law schools and professional organizations. The site provides in-house lawyers, small business owners and executives an efficient way to research the legal issues affecting their operations. It also gives law firms an effective and affordable way to augment their existing marketing efforts. For more information about The National Law Review, visit www.natlawreview.com.

Contact:

The National Law Review
Robin Iori, 248-766-0262

National Federation of Paralegal Associations, Inc. Annual Conference

The National Law Review would like to remind you of National Federation of Paralegal Associations, Inc. 2011 Annual Conference on October 13-16, 2011 in Bloomington, MN:

2011 Convention

2011 Convention postcard art Metrodome with skyline

Online registration closes Friday, Sept. 30^th

Walk-up registrations accepted at the door.

Hotel Information

Hilton Minneapolis St. Paul Airport (use group code NFP)
Single or Double Occupancy: $159.00 per night

Education Sessions

This year we will be holding 24 seminars plus the Student Workshop. There will also be a cooking class offered on Wednesday featuring Hilton Chef Eric Gideon Baker. There is limited space for the Chef’s class and it is expected to fill up quickly so sign up early! The convention brochure (PDF) has details for all of these educational opportunities. All sessions other than F and X are approved for 1.25 hours of CLE credit each.

Casual Up! for Breast Cancer

Casual Up! logo

Support the National Breast Cancer Foundation and Casual Up!
Friday, October 14, 2011

We all know someone or have heard of someone affected by breast cancer. One of the ways NFPA can help fight this disease is by using the privileges we have at our Annual Convention to make an impact in the fight against breast cancer. Friday, October 14th will be casual day to help raise money for breast cancer awareness and funding for mammograms for those in need. It’s simple, fun, and a great way for attendees to become involved in something that saves thousands of lives.

What do you wear on Friday, October 14th to support the National Breast Cancer Foundation and Casual Up? The dress code for donors (minimum donation $5) on this particular day will be relaxed. Be creative and inspire your friends or regions to get involved in a good cause. You can wear jeans, a pink T-Shirt or a pink ball-cap. You can even wear pink socks. The point is to be creative and help increase awareness of breast cancer.

You can also purchase Casual Up T-Shirts for $20 each…must be ordered by August 30, 2011. Shirts are designed by NFPA and available in unisex adult sizes.

Keynote Speaker

Judge Meyer

Honorable Helen Meyer
Minnesota Supreme Court Judge

Judge Helen Meyer earned her Bachelor’s Degree in Social Work at the University of Minnesota. She earned her J.D. from William Mitchell College of Law and then worked for 20 years as a civil trial lawyer and mediator. She co-founded Pritzker & Meyer in 1987 and established Meyer and Associates in 1996.

Judge Meyer is certified as a civil trial specialist by the National Board of Trial Advocacy and the Minnesota State Bar Association, is a past board member of the Minnesota State Board of Legal Certification and the Minnesota Trial Lawyers Association, and has held leadership positions with the Minnesota State Bar Association and Academy of Certified Trial Lawyers.

Judge Meyer served for three and one-half years on Governor Ventura’s Judicial Merit Selection Commission, assisting him in the appointment of over 60 trial court judges and 5 appellate level judges. She was appointed by Governor Ventura as an Associate Justice of the Minnesota Supreme Court in June of 2002. Judge Meyer took the oath of office on August 5, 2002.

Pro Bono Conference

The 2011 Pro Bono Conference will be held on Friday, October 14, 2011, in conjunction with NFPA’s Annual Convention in Bloomington, MN. The Conference will include presentations by paralegals working on pro bono projects across the country, as well as information on how to start or enhance your association’s pro bono efforts. Guest speakers include Erika Applebaum who is the Executive Director of the Innocence Project of Minnesota and Eric Cooperstein, chair of the Minnesota State Bar Association’s Rules of Professional Conduct Committee. There will be 1.25 hours of Continuing Legal Education available for Mr. Cooperstein’s presentation – Real-Life Ethical Predicaments for Pro Bono Coordinators and Volunteers.

Registration will be held in conjunction with registration for the Annual Convention. No charge for NFPA members!

Click here for the Pro Bono Conference details.

Leadership Workshops

3:45 to 5:30 PM Friday

Topics include:

Strategic Planning in Tough Economic Times – presented by Debra Hindin-King
Use of Technology for Local Associations – presented by Jessica Swedenhjelm, RP; Dana Murphy-Love, CAE; Kim Walker

Anti-Money Laundering Compliance Costs

Recently posted in the National Law Review an article by Emily Holbrook of Risk and Insurance Management Society, Inc. (RIMS) regarding anti-money laundering initiatives take more precedence in the corporate world:

Each year, anti-money laundering (AML) initiatives take more precedence in the corporate world, particularly within the financial industry. According to Celent, global spending on AML compliance, including operations and technology, will reach a staggering $5.8 billion within the financial sector by 2013.

Overall, the AML compliance burden is expected to expand at a rate of 7.8% annually while global spending on AML software is projected to expand at a rate of 10.4% per year. But what is the motivation behind such a drive? The research firm found that 42% of respondents cited regulatory requirements, and 25% pointed to reputational risk and brand protection as the main driver for AML compliance spending. And in further findings, financial institutions cited the integration of their AML and anti-fraud operations and technologies as a long-term goal.

“Although intuitively attractive, many institutions may find it difficult to build a business case for integrating AML with anti-fraud,” said Neil Katkov, senior vice president for Celent. “Fortunately, the compliance-driven development of modern AML software, analytics and case management has created a new generation technology that can often deliver better results than legacy anti-fraud systems.”

It seems it’s out with the old and in with the new — and expensive — AML

Administrative Law Judge Finds Employer Unlawfully Discharged Employees Based on Facebook Posts

Recently posted in the National Law Review an article by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap of McDermott Will & Emery regarding the NLRB found that an employer unlawfully terminated five employees because they posted comments on Facebook:

In a first of its kind ruling, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) found that an employer unlawfully terminated five employees because they posted comments on Facebook related to working conditions. This is a landmark decision because, up to this point, employers have only been able to rely on the prosecution trends of the General Counsel’s office, including a recently issued report on the topic, and not actual decisions by the adjudicative body of the NLRB.

This landmark case involved an employee of Hispanics United of Buffalo (HUB) (a nonunionized organization), who posted a message on Facebook sharing critical comments made by a coworker concerning employees’ poor job performance and asking for the employees’ reactions. Five employees commented on the post, defending their job performance and criticizing the critical employee and their working conditions, including work load and staffing problems. HUB later discharged the Facebook poster and the employees who responded to the post, stating that their comments constituted harassment of the critical coworker.

Based on an unfair labor practice charge filed by one of the employees, the NLRB’s Buffalo Regional Director issued a complaint in May 2011. The ALJ heard the case in July and, on September 2, issued a written decision finding that the employees’ Facebook posts were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA) because they concerned a conversation among coworkers about the terms and conditions of employment and the employees’ conduct was not sufficiently inappropriate as to lose the protection of the NLRA. The ALJ awarded the employees back pay and ordered HUB to reinstate the five employees. The ALJ also ordered HUB to post a notice at its Buffalo facility explaining to employees their rights under the NLRA and committing not to violate those rights in the future.

While NLRB complaints related to social media have been on the rise, this is the first ALJ decision specifically addressing employees’ use of Facebook. As a result, employers are wise to consider the ALJ’s decision when disciplining employees based on social media activity.

ANALYSIS: 'ObamaCare' label is sticking

Posted on September 29, 2011 in the National Law Review an article by Wendell Potter of Center for Public Integrity regarding backers of the president’s health plan are loosing the public relations battle:

Backers of the president’s health plan are losing the public relations battle

The Kaiser Family Foundation just released the findings of its annual survey of businesses to determine how much the cost of employer-sponsored health coverage has gone up. There were some unexpected findings.

Tea Party members protest President Obama’s health care mandate in Cincinnati. Tom Uhlman/AP

One was that the average cost of annual premiums for family coverage is now more than $15,000. The 9 percent increase in the cost of health insurance over last year caught many people by surprise, because it represented a bigger hike in premiums than in recent years.

What seems clear is that insurers decided last year to charge their customers considerably more than necessary this year to be able to meet Wall Street’s profit expectations; insurance companies are also concerned that such increases will be more difficult once health care reform is fully implemented in 2014.

Here’s another surprise. Kaiser found that 50 percent of small employers are aware that they are now eligible for a tax credit from the federal government—thanks to the Affordable Care Act—if they provide subsidized coverage to their employees. I can hardly believe the awareness of the tax credit is that high.

As I have traveled across the country in recent weeks, speaking to a wide range of audiences, one thing has become abundantly clear: the provisions of the Affordable Care Act already in effect are anything but abundantly clear to people.

That’s because opponents of health care reform have won the public relations battle in defining the Affordable Care Act.

While the most recent Kaiser survey did not seek the views of the general population nor ask employers what they think or know about the Affordable Care Act, other polls show that advocates of the new law have been losing ground in the battle for public support.

This week I have been speaking at Florida churches — a Catholic church in Winter Park, outside Orlando, Monday night, and a Unitarian Universalist church in Clearwater Tuesday night. The hosts wanted an overview of what’s in the new law and what’s not—to provide factual, unbiased information and also to dispel many of the myths that have gained traction, starting before the law was even enacted.

What the hosts told me—and what I learned from talking to people who attended the forums—is that the Obama Administration and the national groups that backed the legislation have essentially been missing in action when it comes to explaining the benefits of the law.

Kaiser’s finding that 50 percent of small businesses were familiar with the tax credit would certainly come as a shock to Dr. Patrick Cannon, advocacy director for Florida CHAIN (Community Health Action Information Network). He has been traveling the state trying to reach small business owners and educate them about the tax credit.

He has found almost no one even knows about it. This undoubtedly helps explain why the number of small businesses offering coverage to their employees dropped significantly in the most recent Kaiser survey.

Cannon believes that one of the reasons is that reform advocates missed an important opportunity to brand the Affordable Care Act in positive terms—starting with the most basic term of all, the name of the law itself.

As Cannon pointed out, opponents of the law use a single term to describe the law: ObamaCare. The term has so seeped its way into the vernacular that even some of the law’s advocates have started using that pejorative label. The groups that support the law, he notes, use a wide range of terms to describe it.

Cannon is embarking on an effort among supporters to be consistent in calling it the Affordable Care Act.

Because opponents have been able to define the law on their own terms (or term), advocates are finding it increasingly difficult to have civil conversations with people about it—including with independents.

Liz Buckley, executive director of Focus Orlando, told me that, “If you even try to have conversations with people about it, people think you’re just trying to reelect Obama. They just shut down the conversation.”

Why the administration has been so inept or disengaged is baffling. It’s true that people will be skeptical of information about the law that comes straight from the White House, but the folks behind the Obama campaign in 2008 seemed to know how to get third parties motivated and active on behalf of the candidate.

Where are those folks now? If the White House is serious about making sure the law goes forward—and making sure the Obama legacy is a positive one—they better get in gear and turn public awareness and attitudes around. Otherwise, pretty soon,it may be too late.

Mortgage Industry to Face Centralized Repository for State Regulatory Enforcement Actions – Deadline for Comments is September 20, 2011

Posted in the National Law Review an article by attorney Thomas J. McKee, Jr., Gil Rudolph and Michael R. Sklaire of Greenberg Traurig, LLP regarding State Regulatory Registry LLC (SRR);

Deadline for Comments is September 20, 2011

On July 22, 2011, the State Regulatory Registry LLC (SRR) issued a Request for Public Comments on a proposal to collect, centralize and publish all state regulatory enforcement information concerning mortgage loan originators. By creating a central source of investigation information, the SRR aims to provide a repository of background information for both consumers and other state and federal regulators. Before implementing, the SRR has asked for public comments to be submitted by September 20, 2011.

In 2008, the Nationwide Mortgage Licensing System & Registry (NMLS) was created under the federal Secure and Fair Enforcement for Mortgage Licensing Act (“SAFE Act”), with the purpose of “provid[ing] consumers with accessible information . . . regarding the employment history of, and publicly adjudicated disciplinary and enforcement actions against loan originators.” 12 U.S.C.A. § 5101(7). As part of implementing this purpose, the NMLS intended to use the SRR as the vehicle through which to include all regulatory actions taken by state regulators against companies and individuals that could be gathered and published. Previously, actions by state regulators could only be found, if at all, through a search of the individual state regulators’ websites.

The proposal to incorporate state regulatory reporting into the NMLS, which would take effect in Spring of 2012, consists of twelve major policies and processes, which include, among others:

The state agency that took the action will be responsible for inputting such information into the NMLS. The SRR will not verify, validate, or amend any of the enforcement actions, as such information can only be changed by the inputting agency.
Whether an action will actually be included in the NMLS can vary from state to state, depending on state-specific statutes and regulations. Further, each state will determine which actions will be shared only with other regulators, and those that will be made available to the general public.
Reported actions will not be limited to those actions that are public. Instead, a regulator will have the ability, at their discretion, to include information that is to be shared only among regulators or among agency employees.
A recommendation that any postings be made within five (5) days of receipt of a state agency’s final order.
Provide a standardized set of information to be posted, including, for example, (a) the enforcing agency, (b) a description of the Order, and (c) the amount of any fine or other penalty.
The SRR recommends that actions taken against companies should be posted on a prospective basis, while actions taken against loan originators should be posted as of the date each state’s SAFE Act became effective.
All respondents named in an action will be included in any reporting, and the action will be tied to the records of both the named company and/or individuals.
A company or individual will be notified of any posting in the system and will be able to view any publicly posted actions against it in the NMLS. The SRR proposal does not, however, contain a mechanism for a company or individual to learn of the non-public postings against it.
State regulators will have the ability to post multi-state actions through NMLS. Each state involved in such an action is responsible for posting the action pursuant to its own reporting policies.

At first glance, the proposed registry presents a number of benefits to companies. For example, by having a central repository for all state regulatory actions, companies will have easy, up-to-date, access to the types of enforcement actions being pursued across the country, including the resulting fines and penalties assessed. Such information can be invaluable when defending an enforcement action and evaluating settlement proposals with state agencies. Companies will be able to see enforcement trends and use such information to modify their practices. The new system will greatly simplify a company’s ability to learn from the conduct of others.

Such benefits, however, do not come without a host of potential drawbacks. Specifically, while the system seeks to compile standard information regarding enforcement actions, it does not set forth a standard for reporting. Instead, its reliance upon individual state standards for reporting could lead to competitive disadvantages where, despite identical conduct, one company is tagged with a report while another is not solely due to a difference in state reporting standards.

The discretion given to regulators under the system could have similar effects. Giving regulators the discretion to input information (including non-adjudicated information) that will only be shared among regulators or agency employees could result in information being shared without verification, accountability, or opportunity to cure. Successfully defending an enforcement action would not necessarily preclude the sharing of negative comments about a company on the system. Companies will not be privy to such secret, albeit formalized, statements that could be prejudicial to how such entities are viewed and/or treated by other regulatory agencies. Nevertheless, the repository could be a potential treasure trove of information for future plaintiffs and will certainly be a frequent target of discovery in lawsuits.

Companies should carefully examine the potential ramifications each of the proposed policies may have on their business.

The 16th Annual National Institute on Negotiating Business Acquisitions

The National Law Review wants to remind you to mark your calendars for the 16th Annual National Institute on Negotiating Business Acquisitions presented by the ABA’s Business Law Section Mergers and Acquisitions Committee, General Practice, Solo & Small Firm Division, and the Center for Continuing Legal Education:

Negotiating Business Acquisitions

Event Information

When: November 10 – 11, 2011

Where: The Ritz-Carlton Miami Beach | South Beach Miami

1 Lincoln Rd, Miami Beach, FL, 33139-2000

Primary Sponsors

ABA Center for CLE

General Practice, Solo and Small Firm Division and Business Law Section

Highlights

This National Institute includes an extensive mock negotiation that will give you valuable insights on negotiating key representations, warranties, closing conditions and indemnification provisions in an acquisition agreement. Advance preparation is not needed for this program.

Program Description

This two-day National Institute will provide you with an expert perspective on negotiating business acquisitions.

Panelists include nationally known mergers & acquisitions attorneys who will discuss all facets of the acquisition process, including techniques used in structuring and negotiating M&A deals; the tax and securities law aspects of business acquisitions; and the impact of recent legal and regulatory developments on M&A transactions.

The program will examine both fundamental and cutting-edge issues, with sessions addressing
the following:

The key business, financial, and legal terms of the acquisition agreement
Special issues in asset acquisitions
Tax considerations in M&A transactions
Acquisitions of public companies and related Delaware and securities law considerations
An investment banker’s perspective on M&A trends
Recent developments, including the role of private equity buyers
Ethical issues in M&A transactions

Program Brochure

Click here to view program brochure.

Protesting at ODRA?: Learning the Lay of the Land

Recently posted in the National Law Review an article by Marko W. Kipa and Ryan E. Roberts of Sheppard Mullin Richter & Hampton LLP regarding filing with the Office of Dispute Resolution for Acquisition when the FAA makes an award.

Your company submitted a proposal to the Federal Aviation Administration (“FAA”) to provide widgets and related services. The opportunity had corporate visibility and was critical to your sector’s bottom line. After several agonizing months of waiting for an award decision, you learn that the FAA made an award to your competitor. You immediately accept the first debriefing date offered by the Agency. As that date approaches, you begin to strategize and weigh your options – should you file the bid protest at the Government Accountability Office (“GAO”) or the Court of Federal Claims? The answer – neither. When the FAA makes an award, any protest must be filed with the Office of Dispute Resolution for Acquisition – otherwise known as ODRA. There are several similarities and differences between, on the one hand, the GAO and the Court of Federal Claims, and, on the other hand, ODRA.

First, you are entitled to an automatic stay of performance if you timely file your protest at the GAO (unless the stay is overridden by the Agency). To obtain a stay of performance at the Court of Federal Claims, you will most likely need to prevail on a motion for a temporary restraining order or a preliminary injunction. It is very difficult, however, to obtain a stay of performance at the ODRA. ODRA presumes that performance will continue pending resolution of the protest, and a protestor must separately brief the issue of whether a stay should be granted. Unless the protester can demonstrate “a compelling reason to suspend or delay all or part of the procurement activities,” ODRA will allow performance to continue. 14 C.F.R. § 17.13(g); 14 C.F.R. § 17.15(d). A review of ODRA’s suspension decisions shows that stays of performance are rarely granted. In other words, you should expect that ODRA will not grant a stay of performance.

Second, FAA procurements are not governed by the Federal Acquisition Regulation (“FAR”). Rather, the FAA is subject to the Acquisition Management System (“AMS”), which “establishes the policies, guiding principles, and internal procedures for the FAA’s acquisition system.” 14 C.F.R. § 17.3(c). While the FAR and the AMS share some overlapping concepts, there are notable differences between the two. For example, the AMS does not recognize the FAR’s distinction between “discussions” and “clarifications,” and instead categorizes all exchanges as “communications.” Furthermore, the AMS encourages communications with potential offerors, including one-on-one communications, stating that they “should take place throughout the source selection process” to “ensure that there are mutual understandings between the FAA and the offerors about all aspects of the procurement, including the offerors’ submittals/proposals.” AMS § 3.2.2.3.1.2.2. ODRA has routinely denied protests where a disappointed offeror has claimed to have been the subject of unfair treatment when the FAA only communicated with one offeror. See, e.g., Consolidated Protests of Consecutive Weather, Eye Weather Windsor Enterprises, and IBEX Group, Inc., 02-ODRA-00254.

Third, ODRA has a robust alternative dispute resolution (“ADR”) program that is central to its resolution of bid protests. ODRA makes a variety of ADR techniques available to the parties, including mediation, neutral evaluation and mini-trials. 14 C.F.R. § 17.31(b). Additionally, ODRA’s rules were amended recently to place an even greater emphasis on ADR. The new rule officially instructs parties to use ADR as the primary means for settling protests and disputes, and allows parties to file “predisputes” so that they may engage in nonbinding, confidential discussions. 76 Fed. Reg. 55217 (Sept. 7, 2011) (to be codified at 14 C.F.R. Part 17). Although you can decline to participate in ODRA’s ADR program, it is well-worth your time and resources to consider pursuing this option.

Fourth, you should be aware of the various procedural rules at ODRA, as they differ from those of the GAO. Most notably, ODRA spurns the GAO standard of calendar days for business days (thereby excluding weekends and federal holidays). In this regard, a party must file its post-award protest within (i) 7 business days of when it knew or should have known of the basis for its protest, or (ii) not later than 5 business days from the date of the debriefing. 14 C.F.R. § 17.15(a)(3). Once filed, a contractor should be prepared to act – the FAA’s response to the protest is due 10 business days after the initial status conference, and the contractor’s comments on the FAA’s response are due five business days later. 14 C.F.R. § 17.17(e); 14 C.F.R. § 17.37(c). Contractors can also expect ODRA to issue a decision relatively quickly, as the ODRA Dispute Resolution Officer assigned to the case must issue a decision within 30 business days of the FAA’s response to the protest. 14 C.F.R. § 17.37(a),(i).

In conclusion, ODRA differs markedly from the GAO and COFC as a bid protest forum. An understanding of those differences is critical to the preservation and pursuit of your bid protest rights. Since ADR at ODRA has resulted in some form of agency corrective action in roughly 40% of the cases filed at the ODRA from 1997-2007, a failure to appreciate the differences in the rules and the consequent forfeiture of your protest rights can be highly prejudicial. See here.

NLR 2011 Law Student Writing Competition

The National Law Review is pleased to announce the commencement of the Winter Law Student Writing Contest:

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

Winning submissions will initially be published online in November and December 2011.
In each of these months, entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

Why Students Should Submit Articles:

Students have the opportunity to publicly display their legal knowledge and skills.
The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
For an example of a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

November 2011 Feature: Intellectual Property law, Tax law and Labor & Employment law. (Submission deadline: Monday October 17th , 2011)
December 2011 Feature: Healthcare law, Financial Institution law and Bankruptcy and Restructuring law. (Submissions deadline: Monday November 14th, 2011)

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containing useful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.