Federal PFAS Drinking Water Standards: 2023 Is the Year

On Friday, October 7, 2022, the EPA formally sent its proposed federal PFAS drinking water standards to the White House Office of Management and Budget (OMB) for consideration and approval or rejection. The proposed rule cleared OMB review on November 30, 2022; however, the EPA has not yet released the proposed rule. While the details of the rule under consideration are not yet known, what is evident from the title of the document logged on the OMB website is that the drinking water standards will address PFOA and PFOS. At least from the document title, it does not appear that any other PFAS will be subject to Safe Drinking Water Act (SDWA) regulation at the moment.

The delay in releasing the proposed drinking water standards for over a month now, though, could suggest that the proposed rule may seek to regulate more than just PFOA and PFOS, and the EPA may be looking to shore up language and support language in the proposed rule for such a proposal in light of comments from the OMB. Similarly, many wonder whether the EPA proposed a limit so low that the OMB had concerns as to whether the limits were detectable. With the EPA keeping its proposed language a closely guarded secret for the time being, much of the discussions rest on speculation. What we do know is that he EPA is statutorily required to put forth a proposed standard before the first half of 2023, and it has publicly pledged repeatedly to act more quickly than that statutory requirements.

Thus, 2023 will see federal PFAS drinking water standards for at least two PFAS from the EPA and we predict that it is only a matter of days before the country sees the EPA’s proposal, which will kick off what promises to be an extremely contentious public comment period.

Now more than ever, the EPA is clearly on a path to regulate PFAS contamination in the country’s water, land and air. These regulations will require states to act, as well (and some states may still enact stronger regulations than the EPA). Both the federal and the state level regulations will impact businesses and industries of many kinds, even if their contribution to drinking water contamination issues may seem on the surface to be de minimus. In states that already have PFAS drinking water standards enacted, businesses and property owners have already seen local environmental agencies scrutinize possible sources of PFAS pollution much more closely than ever before, which has resulted in unexpected costs. Beyond drinking water, though, the EPA PFAS Roadmap from 2021 shows the EPA’s desire to take regulatory action well beyond just drinking water, and companies absolutely must begin preparing now for regulatory actions that will have significant financial impacts down the road.

Article By John Gardella of CMBG3 Law

For more environmental legal news, click here to visit the National Law Review.

©2023 CMBG3 Law, LLC. All rights reserved.

Will CMS’s Proposed Rule on “Identified Overpayments” Increase Reverse FCA Cases?

On December 27, 2022, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule which, in part, seeks to amend the existing regulations for Medicare Parts A, B, C, and D regarding the standard for when an “identified” overpayment must be refunded, pursuant to the Affordable Care Act (ACA) and the False Claims Act (FCA) reverse false claims provision. As written, the proposed rule would remove the existing “reasonable diligence” standard for identification of overpayments, and add the “knowing” and “knowingly” FCA definition. As a result, an overpayment would be “identified” when the entity has actual knowledge of an identified overpayment, or acts in reckless disregard or deliberate ignorance of an identified overpayment. And, a provider is required to refund overpayments it is obliged to refund within 60 days of such identified overpayment.

If this proposed rule is finalized, the Department of Justice (DOJ) and Health and Human Services (HHS) Office of Inspector General’s (OIG) should be applying the same intent standard to their evaluation of potential reverse false claims and Civil Monetary Penalty liability.

The Lay of the Land

Currently, the applicable overpayment regulations state:

A person has identified an overpayment when the person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment. A person should have determined that the person received an overpayment and quantified the amount of the overpayment if the person fails to exercise reasonable diligence and the person in fact received an overpayment.

42 C.F.R. § 401.305(a)(2). In the 2016 Final Rule, CMS agreed “the 60-day time period begins when either the reasonable diligence is completed or on the day the person received credible information of a potential overpayment if the person failed to conduct reasonable diligence and the person in fact received an overpayment.” This reasonable diligence standard allows entities to not only determine credibility of allegations, or issues relating to, a potential overpayment but also, when credible, to conduct a properly scoped internal investigation, during which an entity also accurately quantifies any associated overpayment due for refund.

In the proposed rulemaking, CMS is suggesting instead the following standard:

A person has identified an overpayment when the person knowingly receives or retains an overpayment. The term “knowingly” has the meaning set forth in 31 U.S.C. 3729(b)(1)(A).

31 U.S.C. 3729(b)(1)(A) defines “Knowingly” as any circumstance in which “a person, with respect to information—(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.”

The currently proposed provision has similar effect to the language CMS proposed in 2012 and, after consideration of comments, ultimately rejected in the 2014 Final Rule (Medicare Advantage and Part D) and 2016 Final Rule (Medicare Part A and Part B). In that final rulemaking, CMS removed the “actual knowledge,” “reckless disregard,” and “deliberate ignorance” terms in favor of the reasonable diligence standard, leaving practitioners to argue that CMS had lowered requisite intent to a standard less than required by the FCA.

Potential Impact

The FCA is a fraud statute, requiring intent. If a company investigating the credibility, issue, and scope of a matter (i.e., exercising reasonable diligence) also diligently determines the scope of a possible refund obligation, it would be difficult for DOJ to credibly claim an entity has acted recklessly, or with deliberate indifference to repayment under the FCA. DOJ’s general practice has been to bring reverse FCA cases when a provider does not investigate credible allegations and does not refund associated overpayments, after identifying them. For example, in a 2015 case, DOJ attorneys stated in a court conference, “[T]his is not a question … of a case where the hospital is diligently working on the claims and it’s on the sixty-first day and they’re still scrambling to go through their spreadsheets, you know, the government wouldn’t be bringing that kind of a claim.” United States ex rel. Kane v. Healthfirst, Inc., 120 F. Supp. 3d 370, 389 (S.D. N.Y. 2015).

It remains to be seen whether this change will result in an increased pursuit of reverse FCA cases. The proposed rule would eliminate an explicit diligence period (generally not to exceed six months, except in particularly complicated analyses, such as under the Physician Self-Referral or “Stark” Law) to ascertain the validity and amount of a potential obligation to refund an overpayment. The proposed rule does not explain whether providers, suppliers, and others still will have an opportunity to conduct a reasonably diligent inquiry into whether any obligation to refund exists at all, prior to the ACA 60-day clock starting to run. Ideally CMS would make clear in any preamble that the government still expects reasonable and professional efforts be undertaken before making refunds, even if that process may take some time to complete

Absent such clarity, the fact remains that it is difficult to “identify” an obligation to refund, much less any refundable amounts, without first validating the alleged overpayment and quantifying any obligation.

Additionally, this standard may prompt entities to submit an HHS-OIG self-disclosure before all facts are known. While OIG requires a disclosing party to conduct an internal investigation prior to submission, it is near impossible to thoroughly investigate issues and identify any refund 60 days from learning of a possible issue that might result in a refund (especially when multiple payors are involved). Even if a disclosing party notes within a self-disclosure that an investigation is ongoing, the disclosing party must certify that it will complete its investigation within 90 days of the submission date – which still may not be enough time based on the complexity of the allegations or claims review required. The resulting back-and-forth of incomplete information likely would create unnecessary delays in reaching a resolution and frustration among all parties involved.

We encourage all providers, suppliers, Medicare Advantage organizations, Part D participants, and other stakeholders to submit comments on this proposed rule. The public has until 5 p.m. ET on February 13, 2023 to submit comments, which are accepted, electronically or by mail.

Article By Kara (Schoonover) Sweet, Lisa M. Noller, and Lawrence W. Vernaglia of Foley & Lardner LLP

For more healthcare and health law legal news, click here to visit the National Law Review.

© 2023 Foley & Lardner LLP

A COVID Surge in China Results in Renewed Restrictions for Travel to the United States

Effective January 5 (at 12:01am, Eastern Standard Time), all passengers inbound from China, Hong Kong and Macau, or who were in the country in the 10 days prior to their departure to the United States, must show a negative PCR or monitored antigen test in order to board flights to the United States. In addition, the same requirement will apply for those passengers who were physically present in China within the 10 days prior to flying through South Korea’s Incheon International Airport, Toronto Pearson International, and Vancouver International.

Background:

Amid concerns over lack of transparency around COVID case data and loosening of COVID-related restrictions, China is facing their largest coronavirus outbreak since the start of the pandemic. The large surge of cases could potentially infect upwards of 800 million people over the next few months. Such a spike in infections over a very short period increases the chances of a new variant emerging, and with the risk of new mutations come the risks of heightened transmission and death rates.

In response, several countries including the United States, Japan, Italy, India, South Korea and Taiwan are implementing measures for travelers to both limit the spread of infection and to improve early detection of new variants. As of January 5, 2023, in order to enter the United States either directly or indirectly from China, Hong Kong and Macau, all passengers over the age of 2, regardless of nationality or vaccination status, must show evidence of a negative PCR or antigen test taken within two days at the departure gate. The only exception will be for those who have recently tested positive. Those who have had COVID-19 in the 90 days prior to their travel to the United States may present documentation of recovery from COVID-19 in lieu of a negative test result.

In addition to the steps taken to specifically protect against those who test positive while traveling from China to the United States, the CDC is also expanding its Traveler Genomic Surveillance program (TGS) to additional airports. TGS, run by the Travelers’ Health Branch at the Center for Disease Control, tests international travelers to detect new variants entering the country and to fill in gaps in global surveillance. During the early days of the Omicron surge, TGS detected two Omicron subvariants weeks before they were reported elsewhere. As part of the program, arriving international travelers volunteer to participate and anonymously provide nasal swabs that are then sent for testing to allow for detection of multiple variants as well as viral characterization to help provide information on a variant’s transmissibility, virulence, and response to current treatments or vaccines.

As the case counts and variants evolve and increase, so, too, must the guidelines around international travel and efforts to control the spread. Before making any international travel plans, make sure to double-check the guidelines in place for each intended destination, prepare for delays and disruption, and continually monitor reliable news sources for updates.

Listen to this post: Here

Copyright © 2023, Hunton Andrews Kurth LLP.
For more Coronavirus Legal News, click here to visit the National Law Review.

New Cosmetic Regulatory Requirements: What Cosmetic Manufacturers Need to Know

On December 29, 2022, President Biden signed into law the “Modernization of Cosmetic Regulation Act of 2022,”1 which requires increased Food and Drug Administration (FDA) oversight of cosmetics and the ingredients in them. This GT Alert outlines the law’s key provisions, including timelines for FDA actions and enforcement. The law creates new requirements that may generate increased consumer litigation. This GT Alert summarizes the Act’s provisions and does not constitute legal advice. Many provisions are subject to regulatory implementation by a date provided for in the Act.

The new law also includes amendments modifying other FDA requirements. In particular, the law modifies the law as to issues such as improvements and innovations in drug manufacturing, reauthorization of key FDA programs such as the Humanitarian Device Exemption Incentive, the Best Pharmaceuticals for Children Program, and Reauthorization of Orphan Drug Grants. There are also modifications to biologics and drugs, as well as modifications of the Save Medical Device amendments. For information on the potential litigation impacts of the new law, please see this GT Alert published by the Pharmaceutical, Medical Device & Health Care Litigation Practice.

Modernization of Cosmetic Regulation Act of 2022 (MoCRA)

MoCRA, the new cosmetic regulation law, establishes a process, similar to those for other FDA-regulated products, that ensures the cosmetic manufacturers provide assurances that the cosmetic products are safe. This GT Alert provides general information on these new requirements, with effective dates for certain regulatory and other requirements. The law establishes obligations on the “responsible person” that is, the manufacturer, packer, or distributor of a cosmetic and those whose name appears on the products label.

MoCRA is only applicable to importers and entities that manufacture or process cosmetic products. It does not apply to the following entities if they do not import, manufacturer, or process cosmetics: beauty salons; cosmetic product retailers; distribution facilities; pharmacies; hospitals; physicians offices; health care clinics; public health agencies and other nonprofit entities; entities that provide complimentary cosmetic products; trade shows and others giving free samples; entities that are only doing research; and entities that prepare labels, relabel, package, repackage, hold, and/or distribute cosmetic products.

Key Terms

Good Manufacturing Practices: The secretary of the Department of Health and Human Services (HHS) (through the FDA) will propose and finalize regulations to establish good manufacturing practices. The key is to ensure that products are not adulterated and will allow FDA to inspect records to ensure compliance. The proposed rulemaking shall be no later than two years after date of enactment (December 29, 2022) with final regulations no later than three years after date of enactment (December 29, 2022).

Adverse Events: Any health-related event associated with the use of a cosmetic product.

Serious Adverse Event: Any event that is a result of death, life-threatening experience; inpatient hospitalization; persistent or significant disability or incapacity; a congenital anomaly or birth defect; and infection or significant disfigurement OR requires, based on reasonable medical judgment, a medical or surgical intervention to prevent an outcome described in the first definition of serious adverse event.

Process for Reporting Adverse Events: In compliance with the HHS secretary’s regulations, the responsible person shall file a report within 15 days and may supplement the report within one year. A serious adverse event report is similar to other safety reports and can include a statement released to the public (without any personal health information). The HHS secretary may exempt certain reports that do not involve a significant public health issue. Records must be kept by the responsible person for six years; three years for small businesses. There is a Rule of Construction that the submission of any report shall not be construed as an admission that the cosmetic product involved, caused, or contributed to the relevant adverse event.

  • Fragrance and Flavor Ingredients: If an ingredient(s) has caused or contributed to a serious adverse event, the HHS secretary may request a list of such ingredients, and such list must be provided within 30 days of the request.

  • Safety Substantiation: Records must be maintained that demonstrates adequate substantiation of the safety of the cosmetic product. Adequate substantiation means tests, studies, or other evidence to support a reasonable certainty that the product is safe.

Inspection: The responsible person shall permit an officer or HHS employee (with credentials) to have access to inspect records, manufacturing and other issues.

Registration and Product Listing: Cosmetic manufacturers must submit a registration no later than ONE YEAR AFTER ENACTMENT (December 29, 2022). New facilities must register within 60 days (or 60 days after deadline). Renewal is every two years. Updates or changes must be submitted within 60 days of the change. The content of the information required for registration is outlined in the law. The registering company must also list all cosmetic products it imports, manufactures, or processes and include product category or categories, list of ingredients (fragrances, flavors, or colors), and product listing number (if previously assigned). Flexibility is given to the listing of multiple products with identical formulations or those that differ only to colors, fragrances, flavors, or quantity. Annual updates are to be submitted. FDA will withhold confidential information included in a listing when a request for information is filed.

The HHS secretary may suspend a cosmetic entity’s registration if there is a reasonable probability that a product is causing serious adverse health or deaths, and the secretary has reasonable belief that other products made or processes may also be affected and for which health concerns are raised about the products manufactured. Notice of suspension is to be provided and an opportunity within five days to provide corrective action; or a hearing may be held. The secretary may conclude (a) the suspension remains necessary or (b) the registrant must submit a corrective action plan to demonstrate remediation of the problem conditions. The plan will be reviewed not later than 14 business days or such other time agreed upon by the parties. If the secretary vacates the suspension, FDA will then reinstate the registration. If the facility is suspended, no person shall introduce or deliver in the United States cosmetic products from such facility. The secretary can only delegate this authority to the FDA Commissioner.

Labeling: Each cosmetic product shall have a label that includes a domestic address, domestic phone number, or electronic contact information. In addition, the following applies to labeling.

  • Fragrance Allergens: The responsible person shall identify on the label each fragrance allergen included. The secretary shall propose a rule on June 29, 2024 (18 months after date of enactment) and final rule 180 days after the public comment period closes. The secretary shall consider international, state, and local requirements for allergen disclosure and threshold amount levels.

  • Cosmetic Products for Professional Use: A professional is an individual licensed by a state authority to practice in the field of cosmetology, nail care, barbering, or esthetics.

  • Professional Use Labeling: A cosmetic product introduced into interstate commerce and intended to be used only by a professional shall bear a label that contains a clear and prominent statement that the product shall be administered for use only by a licensed professional; and is in conformity with the requirements for cosmetics labeling.

Records: Records are to be available to authorized personnel to examine products if there is reason to believe a cosmetic product is adulterated or an ingredient could cause harm or run afoul of other standards. The authorized personnel must provide written notice to have access to records at a reasonable time to determine whether the product poses a threat. The records to be reviewed do not include recipes or formulas for cosmetics, financial data, pricing data, personnel data (except qualifications) research data (other than safety substantiation) or sales data (other than shipment data regarding sales).

  • Rule of Construction: Nothing in this section shall be construed to limit the secretary’s ability to inspect records or require establishment and maintenance of records under any other provision of the law.

Mandatory Recall Authority: If the secretary determines there is a reasonable probability that a cosmetic is adulterated or misbranded and the use or exposure will cause serious adverse health consequences or death, the secretary shall provide the cosmetic manufacturer an opportunity to voluntarily cease distribution and recall such article. If the entity refuses or does not recall the cosmetic within the time and manner prescribed, the secretary may order that the product not be distributed.

  • Hearing: A hearing may be held, no later than 10 days after the date of issuance. A process for resolution is provided by the law to either recall the product and cease distribution based on evidence provided or permit the product to continue distribution. Notice to affected individuals may be required.

  • Public Notification: If a recall is required, a press release is to be published, and alerts and public notices are to be issued, as appropriate. The materials must include the name of the cosmetic; a description of the risk; to the extent practicable, information for consumers about similar cosmetics that are not affected by the recall and ensure publication on the FDA website of the image of the cosmetic. The secretary can only delegate this authority to the Commissioner of the FDA.

  • Rule of Construction: Nothing in this section shall affect the authority of the secretary to request or participate in a voluntary recall or to issue an order to cease distribution or to recall under any other provision of this chapter.

Small Businesses: Responsible persons and owners and operators of facilities whose gross annual sales in the United States of cosmetic products for the previous three-year period is less than $1,000,000 shall be considered small business and not subject to Good Manufacturing Practices, registration, and listing requirements.

  • Exemptions: The small business exceptions do NOT apply to (1) cosmetic products that contact the mucus membrane of the eye under conditions of use that are customary or usual; (2) products that are injected; (3) products that are intended for internal use; or (4) products that are intended to alter appearance for more than 24 hours under conditions of use that are customary or usual, and removal by the consumer is not a part of such conditions of use that are customary or usual.

Preemption. No state or political subdivision of a state may establish any law, regulation, order, or other requirement for cosmetics that is different for registration and product listing, good manufacturing practice, records, recalls, adverse event reporting or safety substantiation. Nothing prevents any state from prohibiting the use of an ingredient in a cosmetic product, or continuing requirement of any state in effect at time of enactment.

  • Savings Clause: Nothing in the amendments shall be construed to modify, preempt, or displace any action for damages or the liability of any person under the law of any state, whether statutory or based in common law.

Talc-containing cosmetics: The HHS secretary shall propose regulations one year after December 29, 2022 and finalize the rules 180 days after the comment period to establish testing for detecting asbestos in talc products.

(1) Not later than one year after date of enactment of this act, the secretary shall promulgate proposed regulations to establish and require standardized testing methods for detecting and identifying asbestos in talc-containing cometic products and

(2) Not later than 180 days after the date on which the public comment period on the proposed regulations closes, the secretary shall issue such final regulations.

PFAS in Cosmetic. The HHS secretary shall assess the use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in cosmetic products and the scientific evidence regarding the safety in cosmetic products, including risks. The secretary may consult with the National Center for Toxicological Research. Report must be issued not later than three years after enactment summarizing the results of the assessment conducted.

Sense of the Congress on animal testing: It is the sense of the Congress that animal testing should not be used for the purposes of safety testing on cosmetic products and should be phased out except for appropriate allowances.

Funding: $14,200,000 for 2023, 25,960,000 for 2024, and $41,890,000 for 2025-2027 have been identified for these activities. The new law provides no industry user fees.

FOOTNOTES

1 This legislation was included in H.R. 2617, the “Consolidated Appropriations Act, 2023,” as part of a year-end bill.

Article By Nancy E. Taylor and Eleanor (Miki) A. Kolton of Greenberg Traurig, LLP

For more biotech, food, and drug legal news, click here to visit the National Law Review.

©2022 Greenberg Traurig, LLP. All rights reserved.

Companies Gear Up For Mass Production of Cultured Meat

Could cultured meat be available in your U.S. grocery store in the new year? A previous article focused on the topic of “cultured meat” – meat made from the cells of animals and grown in a nutrient medium. While no cultured meat has yet been approved for sale in the U.S., companies are positioning themselves for mass production once needed approvals, licensing, inspections, etc., are obtained.

Earlier this month, Believer Meats broke ground on a $123 million plus facility in Wilson, North Carolina. The facility will be able to produce 10 metric tons of meat a year and will be the largest cultured meat facility in the world. The new facility will be Believer Meats’ second production facility. Last year it opened its first facility in Rehovot, Israel, with the capacity to make 500 kilograms of cultured meat a day. Believer Meats has developed processes to create cultured chicken, beef, pork, and lamb.

Investment in the cultured meat industry has been massive. For example, Believer Meats has $600 million in funding, and its investors include ADM Ventures, part of Archer-Daniels-Midland Co., and Tyson Foods.

Investment in the cultured meat industry has been massive.

So, with all of the investment and building of facilities, is the sale of cultured meat in the U.S. imminent? Cultured meat was first introduced in 2013. The eventual sale of cultured meat in the U.S. seems inevitable, but the timing is not yet clear. Before any cultured meat can be sold in the U.S., the FDA and USDA must approve the processes, license the facilities, inspect the facilities, inspect the meat, and approve labeling for the meat. Recognizing the rapid development of cultured meat products, the FDA established a premarket consultation process for companies to work with the FDA to start the process of regulatory approval for their cultured meat products. This premarket consultation process permits the companies to, voluntarily, work with the FDA, and to share information about their processes. The FDA premarket consultation does not, itself, “approve” the products, but evaluates the information shared by the companies – in order to determine if the meat is safe for human consumption. Specifically, as part of the premarket consultation, the FDA considers the cells used to make the cultured meat, the processes and materials used to create the cultured meat, and the manufacturing controls under which the cultured meat is created.

Recently, UPSIDE Food Inc. became the first cultured meat company to complete the FDA’s premarket consultation process. In November of this year, the FDA issued a No Questions letter to UPSIDE Food Inc. for its cultured chicken. The letter stated that information provided by UPSIDE Food Inc. to the FDA demonstrated that UPSIDE Food Inc.’s cultured chicken is safe and its production process prevents the introduction of contaminants that would adulterate the product. Last year, UPSIDE Food Inc opened a facility in Emeryville, California capable of producing 50,000 pounds of meat per year.

UPSIDE Food Inc.’s No Questions letter from the FDA is just the first step in the regulatory process. Pursuant to a 2019 agreement between the FDA and USDA, the FDA and the USDA will share oversight of the production of cultured meat. In addition to the premarket consultation, FDA will oversee the creation of the cultured meat up until the time of harvest, including licensing facilities, and inspecting the creation of the cultured meat. Inspections will ensure approved processes are being used and that the cultured cells are grown in a fashion that complies with Good Manufacturing Processes and food safety regulations.

When the cultured meat is harvested and processed into its final form, regulatory oversight will shift to the Food Safety Inspection Service (FSIS) of the USDA. As with traditional meat producers, cultured meat producers will have to apply for Grants of Inspection and be subject to similar inspections and food safety requirements. Labels for the cultured meat will also have to be preapproved by FSIS.

Before Believer Meats can sell any of its products manufactured in the North Carolina facility, Believer Meats will have to navigate the regulatory hurdles necessary to obtain approval of its products for sale to consumers. Believer Meats has indicated that it has been working with the FDA, but the FDA has not yet issued any statement on Believer Meats’ processes or products. However, with the start of construction on the world’s largest cultured meat facility, Believer Meats will be well-positioned to begin commercial production when regulatory approvals are obtained. We will be following this emerging new market and the regulatory rubric designed to oversee these cutting-edge food products.

Article By L. Christine Lawson of Womble Bond Dickinson (US) LLP

Click here to read more biotech, food, and drug legal news from the National Law Review.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.

Governor Wolf Signs Act 151 Addressing Data Breaches Within Local Entities

On Thursday, November 3, 2022, Governor Tom Wolf signed PA Senate Bill 696, also known as Act 151 of 2022 or the Breach of Personal Information Notification Act.  Act 151 amends Pennsylvania’s existing Breach of Personal Information Notification Act, strengthening protections for consumers, and imposing stricter requirements for state agencies, state agency contractors, political subdivisions, and certain individuals or businesses doing business in the Commonwealth.  Act 151 expands the definition of “personal information,” and requires Commonwealth entities to implement specific notification procedures in the event that a Commonwealth resident’s unencrypted and unredacted personal information has been, or is reasonably believed to have been, accessed and acquired by an unauthorized person.  The requirements for state-level and local entities differ slightly; this Alert will address the impact of Act 151 on local entities.  While this law does not take effect until May 22, 2023, it is critical that all entities impacted by this law be aware of these changes.

For the purposes of Act 151, the term “local entities” includes municipalities, counties, and public schools.  The term “public school” encompasses all school districts, charter schools, intermediate units, cyber charter schools, and area career and technical schools.  Act 151 requires that, in the event of a security breach of the system used by a local entity to maintain, store, or manage computerized data that includes personal information, the local entity must notify affected individuals within seven business days of the determination of the breach.  In addition, local entities must notify the local district attorney of the breach within three business days.

The definition of “personal information” has been updated, and includes a combination of (1) an individual’s first name or first initial and last name, and (2) one or more of the following items, if unencrypted and unredacted:

  • Social Security number;
  • Driver’s license number;
  • Financial account numbers or credit or debit card numbers, combined with any required security code or password;
  • Medical information;
  • Health insurance information; or
  • A username or password in combination with a password or security question and answer.

The last three items were added by this amendment.  Additionally, the new language provides that “personal information” does not include information that is made publicly available from government records or widely distributed media.

Act 151 defines previously undefined terms, drawing a distinction between “determination” and “discovery” of a breach, and setting forth different obligations relating to each.  “Determination,” under the act, is defined as, “a verification or reasonable certainty that a breach of the security of the system has occurred.”  “Discovery” is defined as, “the knowledge of or reasonable suspicion that a breach of the security of the system has occurred.”  This distinction affords entities the ability to investigate a potential breach before the more onerous notification requirements are triggered.  A local entity’s obligation to notify Commonwealth residents is triggered when the entity has reached a determination that a breach has occurred.  Further, any vendor that maintains, stores, or manages computerized data on behalf of a local entity is responsible for notifying the local entity upon discovery of a breach, but the local entity is ultimately responsible for making the determinations and discharging any remaining duties under Act 151.

Another significant update afforded by Act 151 is the addition of an electronic notification procedure.  Previously, notice could be given: (1) by written letter mailed to the last known home address of the individual; (2) telephonically, if certain requirements are met; (3) by email if a prior business relationship exists and the entity has a valid email address; or (4) by substitute notice if the cost of providing notice would exceed $100,000, the affected class of individuals to be notified exceeds 175,000, or the entity does not have sufficient contact information.  Now, in addition to the email option, entities can provide an electronic notice that directs the individual whose personal information may have been materially compromised to promptly change their password and security question or answer, or to take any other appropriate steps to protect their information.

Act 151 also provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must utilize encryption –  this provision originally applied only to employees and contractors of Commonwealth agencies, but was broadened in Act 151.  Further, the act provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must maintain policies relating to the transmission and storage of personal information – such policies were previously developed by the Governor’s Office of Administration.

Finally, under Act 151, any entity that is subject to and in compliance with certain healthcare and federal privacy laws is deemed to be in compliance with Act 151.  For example, an entity that is subject to and in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is deemed compliant with Act 151.

Although Act 151 is an amendment to prior legislation, the updates create potential exposure for local entities and the vendors that serve them.  For local municipalities, schools, and counties, compliance will require a proactive approach – local entities will have to familiarize themselves with the new requirements, be mindful of the personal information they hold, and ensure that their vendors are aware of their obligations.  Further, local entities will be required to implement encryption protocols, and prepare and maintain storage and transmission policies.

Originally Published by Babst Calland November 29, 2022. Article By Michael T. Korns and Ember K. Holmes of Babst, Calland, Clements & Zomnir, P.C.

Click here to read more legislative news on the National Law Review website.

© Copyright Babst, Calland, Clements and Zomnir, P.C.

December 2022 Legal Industry News Highlights: Law Firm Hiring and Growth, End-of-Year Industry Awards, and Diversity and Inclusion News Updates

Happy New Year from the National Law Review! We hope you are remaining happy, safe, and healthy as 2022 ends and 2023 begins. We thank you for all the time you’ve spent with us this past year, and we are looking forward to an even brighter year coming up!

In case you missed it, be sure to check out the National Law Review’s 2022 Go-To Thought Leadership Awards, which recognizes around 75 noteworthy thought leaders that have published with the NLR in the past year. Awardees have been selected for their high-quality writing, timely publication, and wide readerships! The NLR’s thought leadership awards go to a small subsection of our talented contributing authors, and we sincerely appreciate their part in providing the legal community a free to use, reliable news source.

Finally, please be sure to check out this year’s final episode of our Legal News Reach podcast: Creating A Diverse, Equitable and Inclusive Work Environment with Stacey Sublett Halliday of Beveridge & Diamond! Also, a big shout out to Crissonna Tennison and Shelby Garrett for taking on the hosting duties of the NLR’s podcast.

Law Firm Hiring and Expansion

Davis Graham & Stubbs LLP (DGS) has announced the addition of six new partners: Andrea M. Bronson, who focuses her practice on environmental law and litigation; Nathan J. Goergen, who focuses his practice on mergers and acquisitions; Jonathan M. Goldstein, who focuses his practice on real estate law; Almira Moronne, who focuses her practice on mergers and acquisitions and financing; Alena Prokop, who focuses her practice on executive and equity compensation; and Daniel A. Richards, who focuses his practice on complex civil litigation.

“These six attorneys have shown an impressive level of dedication to the firm and to the community we serve,” said Davis Graham & Stubbs Co-Managing Partner Kristin L. Lentz. “Their professionalism, experience, and commitment to our clients make them valuable additions to the firm’s partnership. We wish them all the best in this exciting next chapter in their careers as lawyers at DGS.”

Rob McFadden has joined Hill Ward Henderson as Senior Counsel. A commercial real estate attorney, Mr. McFadden’s practice is primarily focused on representing clients in commercial development work with an emphasis on retail, office, industrial and ground leases. He provides clients with practical advice and solutions that safeguard their interests while furthering their business objectives.

Hill Ward Henderson has also added four new associates: Ana Abado, who focuses her practice on general commercial litigation; Ezichi Chukwu, who focuses her practices on commercial leasing and real estate acquisitions; Matthew Kelly, who focuses his practice on real estate transactions and development agreements; and Tyler Miller, who focuses his practice on mergers and acquisitions, venture capital, and private equity.

Laquan T. Lightfoot has joined Goldberg Segalla’s Transportation and Civil Litigation and Trial groups in Philadelphia. Ms. Lightfoot focuses her practice on a wide array of civil litigation matters, with a particular focus on transportation law. She has also formerly litigated in a variety of fields, including product liability, premises liability, premises security, motor vehicle accident, catastrophic injury, and employment law matters.

In addition to her litigation practice, Ms. Lightfoot serves as an arbitrator with the Philadelphia Court of Common Pleas Compulsory Arbitration Program adjudicating various civil disputes. Before entering private practice, Lightfoot served as an assistant district attorney in the Philadelphia District Attorney’s Office, where she was assigned to Major Trials of the Southwest Division.

Blank Rome LLP has added twelve new partners, as well as four new counsel, effective as of January 1st, 2023. The following attorneys were selected:

“We are thrilled to announce our firm’s 2023 elevated class,” said Grant S. Palmer, Blank Rome’s Managing Partner and CEO. “This group’s demonstrated talent, stellar client service, diverse backgrounds, and collaborative leadership and teamwork in their respective practice areas reflects Blank Rome’s commitment to recruiting, supporting, and advancing talented attorneys who will not only help our firm continue to grow and succeed, but also elevate the next successful generation of legal industry professionals.

Awards and Recognition for Law Firms

Sean C. Griffin, a member at Dykema Gossett PLLC in Washington, D.C., has joined the International Association of Defense Counsel, a highly-recognized, invitation-only global legal organization for attorneys who represent corporate and insurance interests. Mr. Griffin, a former trial attorney for the Department of Justice, represents government contractors, law firms, construction companies, and other businesses in complicated contract litigation. He additionally serves as the senior director at the Federation of Defense & Corporate Counsel.

“I look forward to my membership with the IADC and the opportunity to contribute to this global association of preeminent attorneys,” Mr. Griffin said. “I am excited to meet my fellow members.”

Stubbs Alderton & Markiles, LLP attorney Roger Lee has been recognized by the Los Angeles Business Journal in its annual list of “Leaders of Influence: Thriving in Their 40s.” The list, which specifically honors leading business professionals between the ages of 40 and 49, covers Mr. Lee’s noteworthy representation of Bushfire Kitchen in its new partnership with leading private investment firm CapitalSpring to fuel Bushfire’s growth in Southern California and beyond.

Mr. Lee is senior counsel at Stubbs Alderton & Markiles. His practice is primarily focused on advising emerging growth and middle market companies in a wide variety of transactions, including buy and sell side mergers and acquisitions, mezzanine and senior debt financing transactions, and asset-based financing transactions. Notably, Mr. Lee was also recognized as a 2022 Go-To Thought Leader by the National Law Review for his coverage of President Biden’s Creating Helpful Incentives to Produce Semiconductors Act.

John Rolecki of Varnum LLP has been named to the Privacy Bar Section Advisory Board for the International Association of Privacy Professionals, a not-for-profit association committed to providing a forum for privacy professionals. As the world’s largest information privacy organization, the IAPP is dedicated to defining, promoting, and improving the privacy profession globally by allowing professionals to share best practices, track trends, and advance privacy management issues.

Mr. Rolecki is a partner in Varnum’s Data Privacy and Cybersecurity Practice. Primarily, he advises leading technology companies on emerging domestic and international data privacy regulations, and additionally provides counsel on matters such as data breach responses and ransomware situations.

Legal Industry Diversity, Equity, and Inclusion News

Emily Burkhardt Vicente, a labor and employment partner at Hunton Andrews Kurth, and Jane Hinton, a real estate investment and finance partner at Hunton Andrews Kurth, were recognized as 2022 Diversity & Inclusion Visionaries in The Los Angeles Times’ Diversity, Equity, Inclusion & Accessibility magazine. This publication recognizes diverse business leaders who inspire change and exhibit achievements both within their organizations and the community at large through actionable programs and initiatives impacting diversity, equity, inclusion and accessibility.

Ms. Hinton focuses her practice primarily on real estate transactions, which includes joint ventures, acquisitions, and leasing and portfolio property management. She places a particular emphasis on structuring debt and equity transactions. Ms. Vicente co-chairs the firm’s labor and employment group, focusing her practice primarily on complex employment litigation (such as California and FLSA wage and hour class and collective actions), PAGA actions, and employment discrimination class actions.

Recently, a number of lawyers and legal professionals have been named to the Lawyers of Color 2022 Hot List. Four attorneys at Foley & Lardner LLP have been named to the list, including partner Senayt Rahwa, senior counsel Olivia Singelmann, and associates Elizabeth Nevle and Jennifer Park. The publication is a nonprofit dedicated to promoting diversity in the legal profession, as well as advancing democracy and equality in marginalized communities.

Ms. Rahwa and Ms. Singelmann are both located in the firm’s Washington, D.C. office. Ms. Rahwa focuses her practice on finance and financial institutions, whereas Ms. Singelman focuses her practice on government enforcement defense, investigations, and business litigation. Ms. Nevle, located in the firm’s Houston office, focuses her practice on business litigation and dispute resolution. Ms. Park, located in the firm’s Chicago office, focuses her practice on business litigation and dispute resolution as well.

Katten’s Fabiola Valenzuela has also been added to the Lawyers of Color 2022 Hot List. Ms. Valenzuela concentrates her practice on structuring, negotiating and documenting business transactions, previously representing companies and investors through the entire corporate life cycle. She places particular focus on formations, mergers, acquisitions, venture capital financings, and corporate governance.

At the firm, Ms. Valenzuela also maintains an active pro bono practice, handling, among other matters, cases involving minors in federal immigration and deportation proceedings.

Moore & Van Allen’s (MVA) Jules W. Carter has also been named to the 2022 Lawyers of Color Hot List. Located in the firm’s Charlotte office, Ms. Carter concentrates on financial regulatory compliance issues, helping clients navigate complex regulatory environments and pursue business strategies that balance innovation with risk-awareness.

“Making the Lawyers of Color Annual Hot List is a prestigious and well-deserved honor for Jules,” said Thomas L. Mitchell, MVA’s managing partner and chair of the firm’s Management Committee. “We are proud of Jules’ commitment to provide sophisticated litigation and regulatory services to our clients, and grateful for her leadership as the chair of the firm’s Black Attorney Resource Group.”

Article By Chandler Ford of The National Law Review / The National Law Forum LLC

For more business of law legal news, click here to visit the National Law Review.

Copyright ©2022 National Law Forum, LLC

Deed Warranties and Why They Should Matter To You

You’re negotiating to buy a piece of real estate and your attorney tells you that the seller is proposing to give you a “Special Warranty Deed” in exchange for all of the money you will pay.

Special Warranty Deed – that sounds nice, doesn’t it?  But what does that term really mean?

In order to appreciate what a Special Warranty Deed will mean to you as a buyer, it will help to know a little about the different types of deeds commonly used in North Carolina.  The three most common types of deeds are:

  • General Warranty Deeds;

  • Limited Warranty Deeds; and,

  • Non-Warranty Deeds.

General Warranty Deeds

In a General Warranty Deed, the seller usually gives four warranties regarding the land to the buyer.  The seller warrants to the buyer that:

  • The seller has the right to convey the real estate.

  • The seller will defend the title to the real estate against the claims of all persons.

  • The seller is “seized of the fee” in the real estate. “Seized of the fee” basically means that the seller warrants that the seller owns all of the rights in the real estate except as specifically stated in the deed.

  • There are no encumbrances against the real estate that are not listed in the deed. An encumbrance could be a simple (even beneficial) easement that allows the power company to install a power line across the property or a multi-million dollar judgment lien against the property.  An encumbrance could be just about anything you might imagine that impacts (usually negatively) the use or value of the property, including restrictive (sometimes called “protective”) covenants that control how the real estate may be used.

Limited Warranty Deeds

However, in a Limited Warranty Deed, the seller usually gives only two warranties.  The seller usually warrants to the buyer that:

  • The seller personally has not done anything to the title that the seller received. This is a much more limited warranty than the broad warranty found in a General Warranty Deed.  As explained above, in a General Warranty Deed the seller warrants that the seller not only owns the property, but also has all of the rights in the property except as specifically stated in the deed.

  • The seller will defend the title to the property against claims based on the prior actions of the seller, but no one else. This also is a much more restrictive warranty than that found in the General Warranty Deed.  As noted above, in a General Warranty Deed the seller warrants that the seller will defend the title against the claims from all parties except as specifically stated in the deed.

Limited Warranty Deeds go by various names, including “Special Warranty Deeds.”  Sometimes Limited Warranty Deeds are named after the grantor, such as a “Trustee’s Deed” or an “Executor’s Deed,” but they all share the same characteristic in that they warrant only against the grantor’s own acts.

Non-Warranty Deeds

As one might imagine, the seller gives no warranties in a Non-Warranty Deed.  A Non-Warranty Deed is sometimes called a “Quitclaim Deed.”  Although lawyers quibble over whether there is a difference between a Non-Warranty Deed (which actually purports to convey something) and a Quitclaim Deed (which only releases any claims the grantor has in the land), they all share the same characteristic that they contain no warranty, even against the grantor’s own acts.  In a Non‑Warranty or Quitclaim Deed, the seller merely is giving the buyer whatever rights, if any, that the seller has in the property and the seller makes no warranties of any nature about the seller’s rights in the property.

But What About The Special Warranty Deed?

A Special Warranty Deed is just a Limited Warranty Deed with an appealing name.

But what does it matter if you get a Limited or Special Warranty Deed when you buy a piece of property as opposed to another type of deed?  As long as no title problems come up, it probably will not make any difference whether the seller gives you a General Warranty Deed, a Limited Warranty Deed, or a Non-Warranty Deed.  However, if a title problem should arise, the deed warranties may make a big difference to you.

Let’s take a quick look at what would occur under the different deed warranties when a simple title problem arises.  Let’s assume that you purchased your office building in 2021 from Sam Seller.  Being familiar with the area and Sam Seller, you know that Sam purchased the building from the developer in 2020.  You also know that the developer went out of business at the end of 2020.  When you purchased the property in 2021, everything went smoothly.  Everything was still going well until this past weekend when you received a notice from the county tax office indicating that the 2018 property tax bill on your office building had not been paid and the county has a lien on your property for several thousands of dollars.  Yikes!  As you scramble to locate your purchase file, let’s consider how the different deed warranties could affect your attitude once you actually find your file.

If you had received a General Warranty Deed from Sam Seller, then Sam would have warranted to you that there were no encumbrances against the property that were not listed in the deed.  So unless the deed specifically indicated that the property was conveyed to you “subject to” the 2018 unpaid taxes, you should be able to sleep restfully knowing that Sam owes you the money for the unpaid taxes.

If you had received a Limited or Special Warranty Deed though, your sleep will not be as restful.  In a Limited Warranty Deed, Sam would have warranted simply that he had not done anything to encumber or otherwise harm the title to the property while he owned the property.  Unfortunately, Sam Seller did not own the property in 2018 when the 2018 taxes became a lien on the property or in January 2019 when they became past due.  As you will recall, Sam bought the property in 2020.  Consequently, the warranties found in a Limited Warranty Deed from Sam would not cover the unpaid 2018 taxes, and Sam would not be liable to you for the unpaid taxes.

Of course, if you had received a Non-Warranty or Quitclaim Deed from Sam Seller, then Sam also would not be liable to you for the unpaid taxes.  As mentioned above, under a Non‑Warranty or Quitclaim Deed, Sam would not have warranted anything to you about the property.  You simply would have received whatever rights (if any) that Sam had in the property at that time, and Sam’s rights were subject to the lien of the 2018 taxes.

What To Do If Offered A Special Warranty Deed

So, how do you protect yourself from issues that may arise when you will receive a Special Warranty Deed?  Here are three things to do the next time you decide to buy property:

  • Regardless of the type of deed to be given at closing, get your attorney involved in the transaction before you sign a contract. Even if the contract provides for a General Warranty Deed, other language in the contract could reduce the general warranties.  For example, contract language that indicates the property will be conveyed by a General Warranty Deed “subject to all matters of record” sounds reasonable, but the “subject to” language essentially negates the general warranties because most matters encumbering title to the property will be “of record.”

  • Have your attorney conduct a title examination on the property to discover any encumbrances or title problems before you purchase the property. Even if there are no title problems, this is where your attorney will discover those “little” things that could become big problems if you did not know about them prior to purchasing the property.  For example, this is where your attorney would discover that the large open area behind the office building is subject to an easement in favor of the owner of the adjoining property that would prevent you from expanding the building into that area.

  • Have your attorney obtain title insurance for you. Title insurance will give you additional protection from unknown title risks that could raise their ugly heads in the future.  Although title insurance does not guarantee that you will not have a title problem, it does provide insurance to help pay to correct the problem or to compensate you if the problem cannot be corrected.

Conclusion

Understanding deed warranties will help you to better protect yourself from title problems and possible litigation in the future.  Special and Limited Warranty Deeds really aren’t that special and might not grant you the protections you think.  Even still, other deeds may not contain any protection for a buyer at all.

© 2022 Ward and Smith, P.A.. All Rights Reserved.
For more Real Estate Legal News, click here to visit the National Law Review.

Legal News Reach Episode 7: Creating A Diverse, Equitable and Inclusive Work Environment

National Law Review Web Content Specialist Shelby Garrett closes out Legal News Reach Season 2 with an impactful minisode featuring Stacey Sublett Halliday, Principal and DEI Committee Chair with Beveridge & Diamond. Diversity, equity, and inclusion look different for every law firm, and smaller firms like B&D have to be even more resourceful in their approach to fostering dynamic work environments. How can firms use organizational partnerships to augment their internal DEI strategies?

We’ve included a transcript of the conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for clarity and readability.

Shelby Garrett

Thank you for turning into the Legal News Reach podcast. My name is Shelby Garrett, Web Publication Specialist with the National Law Review, and this episode I’m super excited because I will be speaking to Stacey Halliday, an environmental justice attorney with leadership roles with the American Bar Association and the Environmental Law Institute. Hi, Stacey.

Stacey Halliday

Hi, Shelby, thank you so much. And thank you National Law Review for having me today.

Shelby Garrett

Of course! To kick things off, would you mind telling us a little bit about your background in legal and what led you to pursue a career in law?

Stacey Halliday

Sure. I’m a shareholder at Beverage & Diamond, and we’re an environmental law firm. I’m based out of Washington DC. As you mentioned, a large part of my practice involves counseling clients on environmental justice, identifying risks, opportunities, and helping them incorporate EJ in their work. And I also have a broader practice on ESG issues and product stewardship, so things like sustainability disclosures, ratings and rankings, green marketing compliance and circular economy, that sort of thing. I started the firm a million years ago, longer than I’d like to admit, and had the privilege of also spending two years in the middle of that as an Obama appointee at the US Environmental Protection Agency in the Office of General Counsel so…bounced around a little bit. It’s been a long journey, I sort of wandered into environmental law by happenstance, but it’s been an incredible journey so far.

Shelby Garrett

That’s awesome. We’re super excited to have you today, because we also worked previously on an article about the EPA. So this is perfect to actually get to see each other face to face and talk to each other. Today, we’re going to be talking about DEI initiatives. To start off with that, could you give us a basic definition for people who maybe aren’t familiar with it and tie us into how that relates to law firm operations?

Stacey Halliday

Yeah, absolutely. And I should mention, one of the other hats that I wear at the firm, besides a shareholder is also Chair of our Diversity, Equity and Inclusion committee. So that’s sort of my D E and I hat, I have been on the committee for the 10 years on and off that I’ve been at the firm. So for D E and I, in terms of definitions, it’s–I hate to give you the lawyer answer, but it’s an “it depends” kind of thing, right? So DEI efforts are defined in such a broad variety of ways and are very unique to each organization. So some folks call it DEI, some say DEIA to include accessibility, there’s variations on the theme. But at B&D, DEI is really focused on building and fostering an inclusive culture that allows everyone to be their authentic selves at work, removing obstacles that inhibit equal opportunities for all and promoting and supporting those from historically underrepresented groups outside of the traditional DEI bucket. So defined by race, ethnicity, sexual orientation, gender, identity, disability, or otherwise. So that’s sort of how we think about it at our firm. And I’d say the way that plays out is I as chair, and my deputies, and our committee work with the Management Committee of the firm, the Chief Talent Officer, the firmwide managing principal who oversees the management of the whole firm, and members of committee, we’re the largest committee at the firm, its attorneys and staff. And we work with developing internal and external policies and practices across the firm. We have a Working Parents Group, an Employee Engagement Committee focused on staff and a Women’s Initiative to develop more targeted programming, but that’s kind of how it’s structured across the operations of the firm.

Shelby Garrett

That’s awesome, and that’s great to hear some examples because like you said, it kind of is tailored to each firm and what the community of employees needs. So it sounds like it would be a really large undertaking, because it has to be pretty authentic and genuine with straightforward conversations that might be a little bit harder, with some self-reflection. What is a good place for companies to start out? What is step one?

Stacey Halliday

Step one, really, in my perspective is, tone from the top is a really big I think, ground floor for a lot of this. I came from an HBCU, I went to Howard University School of Law, very proud graduate. And after my clerkship, I met Ben Wilson, who was the Managing Partner of Beverage & Diamond. And Ben is legendary. He’s just a staunch and uncompromising advocate for diversity and for supporting attorneys of color. And he’s the reason I went to Beverage & Diamond because I saw so significant leadership of the firm, he is an individual, but across the firm from his leadership had embraced and embedded diversity as a priority in addition to doing excellent work for our clients. So that I think has continued. He retired, I think it was within the last year, which is very hard as somebody who worked very closely with him. But we’ve really seen the firm continue to demonstrate that absolute commitment, and you see it in the numbers. In our firm about 36% of our shareholders are women, 50% of our Managment Committee are women or minorities, we continue to get very positive accolades for our DEI work even after so I think we see that commitment from the top and that helps all of us understand, incorporate remember that DEI is something important every day.

Shelby Garrett

Absolutely, that’s a really great point, and very nice to hear how you got involved with the firm. When a firm is looking to measure their success, are there any indicators– I imagine it probably depends on what exactly they’re tasked with or what their initiative is. But is there anything that overall could help measure that success?

Stacey Halliday

Yeah, it’s it’s funny, coming into this with a DEI hat but also doing ESG work, I think a lot about metrics and how do you set targets and measure your progress and hold yourself accountable. And because we’re so small, we’re fewer than 150 lawyers or so, we partner a lot. And that’s we use third party groups that are really specialize in this work and specialize in best practices for law firms to measure our progress and hold ourselves accountable. And a leading example of that is our participation in the Mansfield program. So the Mansfield certification program–I see you nodding Shelby, so that’s something you’ve heard of before. It’s based on the Rooney rule for the uninitiated, so the–I know nothing about football, but I have heard it’s based on the football Rooney rule, and that requires consideration of candidates from historically underrepresented groups for certain leadership roles. So we’re Mansfield 5.0 Certified, Mansfield Plus, and that means that not only do we consider certain underrepresented groups for at least 30% of all significant leadership roles, lateral recruiting and business development opportunities, for the Plus certification, we exceeded that requirement by actually achieving 30% or more representation. So that’s been a program we’ve been involved in at least the last four or five years, and the requirements continue to elevate every year. So it’s really an incredible way to not only track our progress, but also keep ourselves challenged because the goalposts continue to move to keep us challenged and leaning forward into this kind of work.

Shelby Garrett

That is really awesome. Yeah, when I was preparing for this, I was looking at the Mansfield website, I think it’s run by Diversity Lab maybe? So I was looking through all of their documentation on their website so that’s awesome. While we’re talking about Beverage & Diamond specifically, I know you mentioned the tone from the beginning was very inclusive. Is there any additional training or education that is provided to employees, whatever you’re comfortable talking about, specific to the firm?

Stacey Halliday

Yeah, of course. I think we have a number of different programs, we have the committee and we have an annual survey across the firm that helps us understand where there might be need or interest in getting additional training and support in this space. So from an internal perspective, that’s something that’s more dynamic and focused on our particular firm and its community. So that could be anything from implicit bias training, to learning about more accessibility issues, or neurodiversity or something like that. So that’s something that we develop, and work as committee to build over the course of the year. But I think again, partnerships are a really big part of how we support our community in getting the best practices and cutting edge work in the space and support for each of our individual community members. So we partner with groups like LCLD, the Leadership Council on Legal Diversity, which is just unbelievable. The program is amazing. So we have Fellows, Pathfinders, and we have Summer 1Ls that are part of this LCLD partnership, and the Fellows and Pathfinder program supports individuals in either mid-career or senior level or entry level attorneys with things like professional development programs, leadership training, relationship building opportunities, and that’s for attorneys from historically underrepresented groups. So it’s really amazing, I haven’t actually I haven’t done it, but a lot of my close colleagues and friends have done it and they talk about the relationships they’ve built, the support they’ve gotten, in addition to what they get internally at the firm being just invaluable and a great resource. So that’s something that’s a good example of the kind of things that we do plus our internal training to really support those in our community.

Shelby Garrett

Sorry, I think I missed it. Was that a third-party group?

Stacey Halliday

Yeah, it’s unbelievable. It’s like there’s a couple of different programs like this and MCCA, Minority Corporate Counsel Association, and there’s–the acronyms, its an alphabet soup–CCWC Corporate Counsel Women of Color. There’s a couple of different programs like this that focus on different historically underrepresented attorney groups and communities. But LCLD is something where we’ve had a really in-depth relationship and pipeline coordination. So the 1L program through LCLD, we have a 1L Summer Associate. So usually they’re 2Ls, you’re a second-year law student when you come to summer at a law firm and then hopefully you get an offer afterwards for a job. But we have a 1L come in through the LCLD program from a historically underrepresented group. And it’s a great way to build a pipeline for talent in our community organization, especially in the environmental law space where diversity is a challenge.

Shelby Garrett

Absolutely. That is amazing. One of the things I think you mentioned towards the beginning was a program for working moms. Do you mind explaining a little bit more about that, is that like a third-party?

Stacey Halliday

It’s actually internal. We created a Working Parents Group, we had a Women’s Committee initially, and the Women’s Committee was dealing with a lot of coming together to talk about all of the challenges that women inherently face. But we were also finding that we had a lot of men who are parents, as well, who were kind of, you know, still tackling a lot of these challenging issues, especially coming into the pandemic, when we’re all working remotely. And I have two young kids under three… it’s a challenge, it’s a journey. And actually having that community to talk about what kind of resources we might need, how we might support one another, how we can share best practices and lessons learned, and just support each other in the work environment, which is inherently stressful in a law firm. But if we’re all being understanding and know more about what we’re facing, we can all kind of tackle it together. So the working parents group was an outgrowth, I think of the pandemic and of having a community of young parents, and of more veteran parents who could all sort of share these lessons learned and worked together on solutions.

Shelby Garrett

That is awesome to hear both the internal kind of programs and then also the third-party kind of programs. How does the firm’s DEI work align with its overall business strategy and its goals? I know we just talked about the 1Ls and having them have that exposure and the opportunity to network and really get involved early, but looking more broadly at overall business strategy and goals.

Stacey Halliday

I think it’s such an interesting time in this space, because where there might have been more skepticism, especially at a law firm where your time is billed in six minute increments, to dedicating time and resources to DEI, now we’re seeing some pressure from clients, some external pressure, that really sends home the business case for the importance of diversity and for supporting DEI from a retention perspective. And I think Beverage & Diamond is unique in that we’ve always embraced DEI as one of our core principles that are important to the firm. But were there any naysayers, it’s now you know, we’re really seeing that clients are bringing down the hammer. They’re asking for more transparency. We have dense, pages long surveys asking us to disclose information about our diversity performance, and how many people from historically underrepresented groups are on our pitch teams, how many folks are actually billing time, are they getting considered for promotion, like they, they want to know that level of detail. And if they don’t see it, there’s either a penalty in terms of fees or you don’t get the work. And I think that is something that has shifted, in concrete ways, the industry. You’re seeing a huge proliferation of Chief Diversity Officers, So C-suite level leadership and management in law firms that actually looks at this topic the way it is, a sophisticated practice, that’s on top of legal practice. So I think the business case is now kind of firmly being established across the industry more so than it has in the past. Just a really interesting trend.

Shelby Garrett

That is really interesting. When I was like reading different articles to prepare for this, I hadn’t heard of that. So that’s really great to hear that there’s some external pressure and investment in this bigger priority. You were talking kind of a little bit about, you know, billing hours. So building these DEI initiatives require some resources and support. What kind of resources and support can a firm offer to employees who might be affected by these issues? I know kind of just like, taking the time for the Working Parent Group. But what resources really go into that?

Stacey Halliday

I think for us, again, we’re fairly small. So you know, where you have these huge multinational global firms that have hundreds of 1000s of people who would be part of an affinity group or any type of program that’s associated with different subpopulations of a diverse community, we’ve got like five. So it’s not necessarily the same sort of thing in terms of the scale of the programs, which is why we end up doing more partnerships so that, you know, the Diversity and Flexibility Alliance might have a program or something like that, or we’ll say, “Hey, if you’re interested in doing this training, or engaging this community more aggressively, we absolutely support you, as an individual, doing that kind of work, because we don’t have the infrastructure necessarily to do it.” But some larger firms and companies do things like backup childcare, something like that, like, I think Bright Horizons or something like that, you know, you can go and, if your school’s closed, or if your kids sick, you can find some way to get some coverage so that you can still go to work. There’s all kinds of flexible leave policies and that sort of thing that really does help in terms of giving people the space that they need, still thinking from  the parent context. Affinity groups are something that we have decided to date not to really form more broadly, just because again, the numbers aren’t there. But for us our partnerships are the way that we do it. But a lot of other large organizations do things like affinity groups that have more of a build-out in terms of permanent programs throughout the year. So in terms of brass tacks for us, we have the committee, with its mix of associates and staff members, and we have a budget every year to support those external engagements and partnerships and certification programs and that sort of thing. But it really does run the gamut, I think, especially at larger shops, where they have more numbers to really build out more infrastructure and training programs and curricula and support benefits, like childcare.

I worked at a law firm before I went to law school, and it was a much larger law firm. And I think historically, there’s been a really strong divide between attorneys and staff at a lot of law firms, which I think can be problematic and unnecessary. It inhibits, I think, community and diversity in a lot of different ways. But B&D has been fantastic. Our DEI committee is fully integrated with staff and attorneys. And we have some pretty significant empowerment and promotion of non-lawyers at the firm in this space to try and get a better perspective on our community. We’re basically half non-lawyers. So it’s really important to make sure that we’re not only capturing the voices of those members of our community through the committee, but also investing in the non-lawyers. And so we have a couple of professional development programs and we encourage external training in the same way that we support our attorneys. So it’s, I think, something that gets lost a lot in the conversation for law firms, because they’re so focused on the folks who are billing, but it’s a much bigger biosphere, for the law firm to be successful. It’s a lot more to it than just the legal work. So I think it’s really been important to make sure those voices are captured, the broader diversity of the firm is captured through thinking about your staff, and not just your attorneys.

Shelby Garrett

That is an amazing point I had not even considered, there’s an additional kind of hierarchy of opinions being taken into account. That’s really interesting. As we start to come to a close, are there any final thoughts you wanted to share?

Stacey Halliday

I’m so grateful to the National Law Review, specifically to you, Shelby, for bringing this conversation to bear. And I think it’s really important for our community to really think about effective practices here so that we generate and support more diverse communities so that we have more diversity of thought, as well as other types of diversity in the way that we solve problems and do our work. And I’m happy that we had a chance to have this chat and celebrate the work that’s being done in the space.

Shelby Garrett

Yeah, that’s really great. I am very grateful that you joined us today, I appreciate you taking the time to really walk through all of this because it is pretty unfamiliar to me. So it’s really great to get the basic understanding of where firms can start if they haven’t started yet, and some inspiration of where they can go. So I really do appreciate that. And thank you so much for joining us today. For listeners who are interested in finding you and maybe some of your thought leadership in the environmental justice area, where can they look for you?

Stacey Halliday

Thank you for the plug, I will absolutely take it! bdlaw.com. So please check out B&D’s site, the Environmental Justice Practice Group has its own site. And we also have a podcast, another shameless plug for our joint podcast with the Environmental Law Institute called Ground Truth. That will be kicking back up in 2023, but we bring on folks and have some deep thoughts on EJ and what’s ahead and what’s coming down the pike. So hopefully check us out there as well.

Shelby Garrett

Fantastic. Thank you so much. Again, we really appreciate your time, and we will be back in a couple of weeks for a new episode of Legal News Reach.

Conclusion

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple Podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlawreview.com. We’ll be back soon with our next episode.

Copyright ©2022 National Law Forum, LLC
For more Legal News Reach episodes, click here to visit the National Law Review.

An Essential Guide to Become a Paralegal

Paralegals are the backbone of the legal industry. By supporting lawyers and managing their day-to-day tasks, paralegals ensure that the law firm runs smoothly and efficiently.

If you’re interested in becoming a paralegal or want to strengthen your skills, continue reading to learn more about this growing field, the job responsibilities, and what you can do to position yourself for success.

What Is a Paralegal?

A paralegal is a professional in the legal field who performs tasks that require knowledge of the law and legal concepts but not to the full extent of a lawyer licensed to practice law. As part of the support staff, a paralegal is working to enhance a lawyer’s work, and the lawyer takes full responsibility for that work produced.

What Do Paralegals Do?

Paralegals assist lawyers with legal cases by researching and preparing reports for lawyers to use in their work. They’re not permitted to work alone and must be under the supervision of a licensed attorney. Paralegals may work in many legal settings, including law firms, nonprofits, and government agencies, but their duties may include:

  • Investigating information about a case

  • Researching information about a case

  • Interviewing witnesses

  • Researching and learning about regulations and laws

  • Writing reports

  • Maintaining a database of records related to each case

  • Drafting letters, documents, and emails

  • Acquiring affidavits for court

  • Helping to draft legal arguments

  • Corresponding with clients

  • Preparing wills, real estate contracts, divorce decrees, and other civil documents

The duties of a paralegal can vary according to the environment in which they work. They can work within an area of practice, just like lawyers do, with different duties. For example, they may work in probate, immigration, litigation, intellectual property, or corporate law.

Is Paralegal Work Difficult?

The legal field is high pressure, high stakes, and driven by deadlines, and not just for lawyers. Working as a paralegal has its perks, but it can be stressful and demanding. Clients trust in the lawyer to protect their best interests, and that lawyer is depending on the paralegal to make that possible.

What Skills Should a Paralegal Have?

Paralegals have a variety of hard and soft skills, including:

  • Communication: Paralegals must communicate with lawyers, clients, court officials, witnesses, government officials, and insurance companies in both verbal and written correspondence.

  • Investigative Skills: A lot of paralegal work involves researching, analyzing, and seeking out information to assist lawyers. Paralegals must have attention to detail and a good eye for discerning relevant facts.

  • Teamwork: Paralegals don’t work alone. They must interact with other paralegals, legal assistants, secretaries, and lawyers throughout the day, so teamwork is essential.

  • Time Management: Much of the legal field revolves around good time management, and not just for lawyers. Paralegals have to adhere to deadlines and complete tasks in a timely manner, knowing how to prioritize appropriately.

  • Technology Skills: Paralegals use technology to complete their work, often using word processors, spreadsheets, and presentation software. Many law firms use law practice management software, which paralegals must also learn to use effectively.

How Do You Become a Paralegal?

Paralegals are not licensed on the national level, so there are no federal standards for the profession. Only a few states regulate the profession on the state level. Instead, the employers establish the hiring standards and require some formal education.

The options for paralegal education or training include:

Associate Degree

An associate degree takes about two years to complete and requires a high school diploma. Some schools may have additional admissions requirements.

Bachelor’s Degree

A bachelor’s degree in legal studies, paralegal studies, or similar fields is appropriate for paralegal education. Typically, bachelor’s degrees take four years to complete. According to the National Federation of Paralegal Associations (NFPA), more employers are placing an emphasis on earning a bachelor’s degree.

Master’s Degree

If you have a bachelor’s degree, a master’s degree in legal studies (MLS) is a good choice to increase your knowledge in skills like negotiation, employment law, legal writing, and intellectual property law. This not only deepens the skill set for a paralegal, but it offers a broader scope of work as a legal professional.

Paralegal certification is another option to either replace a degree program or enhance it. The NFPA recommends achieving a paralegal certification to enhance employment prospects. There are several options available from the National Association of Legal Assistants (NALA), including a Certified Paralegal, an Advanced Certified Paralegal, and a Professional Paralegal certification.

Several schools also offer certification programs for paralegal work, though it’s important to research carefully to ensure you’re getting a certification that will benefit you professionally.

Are There Different Requirements in Each State to Become a Paralegal?

Generally, paralegals don’t have to meet any state licensing requirements, according to the United States Bureau of Labor Statistics (BLS). Professional certification or degrees at the national and regional level is voluntary.

That said, state governments have no restrictions from establishing their own rules, and a few states have chosen to regulate the paralegal profession closely.

According to the American Bar Association, California has restrictions for workers using the title “paralegal,” as well as “freelance paralegal,” “contract paralegal,” “independent paralegal,” “legal assistant,” and “attorney assistant.” These rules prohibit paralegals from engaging in certain activities, including representing clients in court or giving legal advice. They also have minimum education and experience requirements, as well as continuing education requirements.

In addition, both Washington and Utah require licensing for paralegals and non-attorney roles in the legal field. This doesn’t mean these paralegals must be licensed to work, but that highly educated and experienced paralegals can become credentialed to perform a broader scope of legal work.

Outlook of Paralegals

According to the BLS, the median annual wage for paralegals and legal assistants was $56,230 as of May 2021. Employment of paralegals and legal assistants is projected to grow 14% from 2021 to 2031, which is a faster rate than all occupations. About 45,800 openings for these roles are projected each year, on average, over the next decades.

Since the recession, law firms have been making changes to become more efficient and competitive, which may include expanding the scope of work for paralegals. Other institutions also recognize the benefits of workers with legal training, such as government agencies and banks.

Since then, there’s been a rising demand for paralegals — particularly ones with technology skills. Paralegals that can navigate technology tools, such as law practice management software, digital forensics, and electronic evidence discovery and preservation, are highly sought.

Paralegals often handle billing and invoicing, which is simplified with legal billing software.

Pro Tip: To gain a competitive edge, paralegals should consider receiving a certificate in law practice management software. PracticePanther offers the certification for free and can be completed on your own time.

Become a Skilled Paralegal

The role of paralegals is growing in demand and constantly evolving. Though it’s not required, the more educated and technologically sophisticated paralegals are, the more career opportunities they have in the legal field – and that includes experience and skills with law practice management software.

Article By Nina Lee of PracticePanther

For more business of law legal news, click here to visit the National Law Review.

© Copyright 2022 PracticePanther

Powered by
►
Necessary cookies enable essential site features like secure log-ins and consent preference adjustments. They do not store personal data.
None
►
Functional cookies support features like content sharing on social media, collecting feedback, and enabling third-party tools.
None
►
Analytical cookies track visitor interactions, providing insights on metrics like visitor count, bounce rate, and traffic sources.
None
►
Advertisement cookies deliver personalized ads based on your previous visits and analyze the effectiveness of ad campaigns.
None
Powered by