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Reminder to Employers Regarding Mandatory Workplace Posters

As employers march through the beginning of the new year, they should ensure they are in compliance with the various mandatory workplace notice and posting requirements under applicable state and federal laws.

To that end, the U.S. Department of Labor provides a poster advisory tool for employers to reference. Similarly, most state department of labor websites will, at the very least, provide a list of required state employment posters. Many of these websites also provide links for employers to download mandatory posters for free.

For Texas employers, for example, the Texas Workforce Commission’s website contains a list of optional and required posters. In addition to federally mandated posters, private Texas employers are required to post information related to the Texas Payday law and unemployment compensation, and workers’ compensation, if the employer has workers’ compensation insurance coverage. Further, as of January 8, 2024, Texas employers must post a “Reporting Workplace Violence” notice in both English and Spanish.

Federal and state laws typically require that required posters be physically posted conspicuously at each of the employer’s facilities and/or work sites that are convenient and easily accessible to employees and, in some cases, job applicants. Because many employers have transitioned to or otherwise permitted hybrid and remote-work environments, such employers should remember that federally mandated notices may be electronically provided to remote employees, as well as displayed in the physical workspace for hybrid workforces. But, according to the U.S. Department of Labor’s guidance, electronic posting or access should be at least as effective as a physical posting, and employees should be able to access the electronic posting without having to request permission to view it. Employers should verify whether the applicable state law allows for electronic delivery or posting of mandatory notices to remote and hybrid employees. In Texas, employers should look to federal guidance regarding the same.

As Three Recent Settlements Demonstrate, Whistleblowers Are the Key to Enforcement of Section 301 Tariffs

The Section 301 tariffs on Chinese-made goods—at the time, known as the Trump Tariffs, although President Biden has embraced them as well—were put in place in 2018. Only recently, more than five years later, have enforcement efforts begun to show up publicly. And, as is often the case, whistleblowers are the tip of the enforcement spear. In particular, over the course of two weeks at the end of 2023, the U.S. Department of Justice (“DOJ”) announced settlements of three qui tam cases, brought under the False Claims Act, that alleged evasion of Section 301 tariffs. These are the first such settlements to be made public, but likely signal the beginning of a wave of settlements or litigation in the coming years.

Starting in July of 2018, and pursuant to Title III of the Trade Act of 1974 (Sections 301 through 310, 19 U.S.C. §§ 2411-2420), titled “Relief from Unfair Trade Practices,” and often collectively referred to as “Section 301,” the United States imposed additional tariffs on a wide range of products manufactured in China. The Section 301 tariffs were rolled out in tranches, but they fairly quickly covered a majority of all Chinese-made products imported into the United States. The Section 301 tariffs imposed an additional 25% customs duty on those products.

As is always the case when high tariffs are imposed on imported goods, the Section 301 tariffs were met with a mix of responses by importers. In some cases, importers simply paid the additional 25% duties. In some cases, the importers found new sources, outside of China, for the products they wished to import. And in many cases, the importers started cheating—evading the tariffs either by lying to Customs and Border Protection (“CBP”) about what was being imported, or engaging to transshipping schemes to make it appear that the products were actually made in some country other than China.

Evasion of customs duties violates the False Claims Act, a federal law that, among other things, outlaws the making of false statements to avoid payment of money owed to the government. Evasion of customs duties will almost always involve such false statements because when goods are imported into the United States, the importer must provide CBP with a completed form, called an Entry Summary (also known as a Form 7501), in which the importer provides information about the nature, quantity, value, and country-of-origin of the goods being imported. To avoid or reduce the payment of duties, the importer will almost always lie on the Entry Summary about one or more of those, thus exposing the importer to liability under the False Claims Act.

The False Claims Act has a qui tam provision, which means that a private person or company may bring a lawsuit in the name of the government against the importer that has evaded payment of duties. If the qui tam lawsuit is successful, most of the money goes to the government. But the person or company that brought the lawsuit typically referred to as a whistleblower or, more technically, as the “relator”—gets an award that is between 15% and 30% of the amount recovered for the government.

When a qui tam case is first filed, it is put “under seal” by the court, meaning that it is secret and not available to the public. The case stays under seal, often for multiple years, as DOJ investigates the claims made in the case. But once DOJ decides to pursue a case, the seal is lifted, and the case becomes public. Often, this happens almost simultaneously with the announcement of a settlement of the case.

That is what happened with three cases that became public in late 2023. The first announcement came on November 29, 2023, when the U.S. Attorney’s Office for the Northern District of Georgia announced a $1.9 million settlement in a case captioned United States ex rel Chinapacificarbide Inc. v. King Kong Tools, LLC. In that case, the whistleblower that had brought the qui tam lawsuit was a competitor company which alleged that King Kong Tools was manufacturing cutting tools in a factory in China, shipping them to Germany, and then importing them from Germany into the United States, claiming falsely that the tools were made in Germany. The whistleblowing company received an award of $286,861.

The second such announcement came on December 5, 2023, when the U.S. Attorney’s Office for the Northern District of Texas announced a $2.5 million settlement in a case captioned United States ex rel. Reznicek et al. v. Dallco Marketing, Inc. In that case, the whistleblowers were two individuals who alleged that the defendants evaded the Section 301 tariffs by underreporting the value of the products they were importing from China into the United States. The whistleblowers received an award of $500,000.

The third such announcement case on December 13, 2023, when the U.S. Attorney’s Office for the Eastern District of Texas announced a settlement of $798,334 in a case captioned United States ex rel. Edwards v. Homestar North America LLC. Like the Dallco Marketing case, the Homestar case was also brought by an individual who alleged that the importer had lied to the government about the value of the goods being imported from China into the United States, in order to avoid payment of Section 301 tariffs. The whistleblower received an award of $151,683.

Accordingly, over the course of just two weeks in late 2023, three Section 301 settlements were publicly announced in quick succession. And notably, all three were whistleblower qui tam cases. This demonstrates the key role that whistleblowers play in the enforcement of customs tariffs and duties. No doubt, many other such cases remain under seal, and will start to become public as DOJ concludes its investigations. And because the Section 301 tariffs remain in place to this day, additional qui tam cases will almost certainly continue to be brought by both individual whistleblowers and competing companies seeking to level the playing field. Accordingly, these three settlements are likely just the early signs of a wave of Section 301 cases that will crest in the coming years.

CNN, BREAKING NEWS: CNN Targeted In Massive CIPA Case Involving A NEW Theory Under Section 638.51!

CNN is now facing a massive CIPA class action for violating CIPA Section 638.51 by allegedly installing “Trackers” on its website. In Lesh v. Cable News Network, Inc, filed in the Superior Court of the State of California by Bursor & Fisher, plaintiff accuses the multinational news network of installing 3 tracking software to invade users’ privacy and track their browsing habits in violation of Section 638.51.

The Evolution of California Invasion of Privacy Act:

We know the California Invasion of Privacy Act is this weird little statute that was enacted decades ago and was designed to prevent ease dropping and wiretapping because — of course back then law enforcements were listening into folks phone calls to find the communist.

638.51 in particular was originally enacted back in the 80s and traditionally, “pen-traps” were employed by law enforcement to record outgoing and/or incoming telephone numbers from a telephone line.

The last two years, plaintiffs have been using these decades-old statues against companies claiming that the use of internet technologies such as website chat boxes, web session recording tools, java scripts, pixels, cookies and other newfangled technologies constitute “wire tapping” or “eavesdropping” on website users.

And California courts who love to take old statutes and apply it to these new technologies – have basically said internet communications are protected from being ease dropped on.

Now California courts will have to address whether these new fangled technologies are also “pen-trap” “devices or processes” under 638.51. These new 638.51 cases involve technologies such as cookies, web beacons, java scripts, and pixels to obtain information about users and their devices as they browse websites and or mobile applications. The users are then analyzed by the website operator or a third party vendor to gather relevant information users’ online activities.

Section 638.51:

Section 638.51 prohibits the usage or installation of “pen registers” – a device or process that records or decodes dialing, routing, addressing, or signaling information (commonly known as DRAS) and “trap and trace” (pen-traps) – devices or processes traditionally used by law enforcement that allow one to record all numbers dialed on outgoing calls or numbers identifying incoming calls — without first obtaining a court order.

Unlike CIPA’s 631, which prohibits wiretapping — the real-time interception of the content of the communications without consent, CIPA 638.51 prohibits the collection of DRAS.

638.51 has limited exceptions including where a service provider’s customer consents to the device’s use or to protect the rights of a service provider’s property.

Breaking Down the Terminology:

The term “pen register” means a device or process that records or decodes DRAs “transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but not the contents of a communication.” §638.50(b).

The term “trap and trace” focuses on incoming, rather than outgoing numbers, and means a “device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but not the contents of a communication.” §638.50(c).

Lesh v. Cable News Network, Inc “CNN” and its precedent:

This new wave of CIPA litigation stems from a single recent decision, Greenley v. Kochava, where the CA court –allowed a “pen register” claim to move pass the motion to dismiss stage. In Kochava, plaintiff challenged the use of these new internet technologies and asserting that the defendant data broker’s software was able to collect a variety of data such as geolocation, search terms, purchase decisions, and spending habits. Applying the plain meaning to the word “process” the Kochava court concluded that “software that identifies consumers, gathers data, and correlates that data through unique ‘fingerprinting’ is a process that falls within CIPA’s pen register definition.”

The Kochava court noted that no other court had interpreted Section 638.51, and while pen registers were traditionally physical machines used by law enforcement to record outbound call from a telephone, “[t]oday pen registers take the form of software.” Accordingly the court held that the plaintiff adequately alleged that the software could collect DRAs and was a “pen register.”

Kochava paved the wave for 638.51 litigation – with hundreds of complaints filed since. The majority of these cases are being filed in Los Angeles Country Superior Court by the Pacific Trial Attorneys in Newport Beach.

In Lesh v. Cable News Network, Inc, plaintiff accuses the multinational news network of installing 3 tracking software to invade users’ privacy and track their browsing habits in violation of CIPA Section 638.51(a) which proscribes any “person” from “install[ing] or us[ing] a pen register or a trap and trace device without first obtaining a court order.”

Plaintiff alleges CNN uses three “Trackers” (PubMatic, Magnite, and Aniview), on its website which constitute “pen registers.” The complaint alleges to make CNN’s website load on a user’s browser, the browser sends “HTTP request” or “GET” request to CNN’s servers where the data is stored. In response to the request, CNN’s service sends an “HTTP response” back to the browser with a set of instructions how to properly display the website – i.e. what images to load, what text should appear, or what music should play.

These instructions cause the Trackers to be installed on a user’s browsers which then cause the browser to send identifying information – including users’ IP addresses to the Trackers to analyze data, create and analyze the performance of marketing campaigns, and target specific users for advertisements. Accordingly the Trackers are “pen registers” – so the complaint alleges.

On this basis, the Plaintiff is asking the court for an order to certify the class, and statutory damages in addition to attorney fees. The alleged class is as follows:

“Pursuant to Cal. Code Civ. Proc. § 382, Plaintiff seeks to represent a class defined as all California residents who accessed the Website in California and had their IP address collected by the Trackers (the “Class”).

The following people are excluded from the Class: (i) any Judge presiding over this action and members of her or her family; (ii) Defendant, Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which Defendant or their parents have a controlling interest (including current and former employees, officers, or directors); (iii) persons who properly execute and file a timely request for exclusion from the Class; (iv) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released; (v) Plaintiff’s counsel and Defendant’s counsel; and (vi) the legal representatives, successors, and assigns of any such excluded persons.”

Under this expansive definition of “pen-register,” plaintiffs are alleging that almost any device that can track a user’s web session activity falls within the definition of a pen-register.

We’ll keep an eye out on this one – but until more helpful case law develops, the Kochava decision will keep open the floodgate of these new CIPA suits. Companies should keep in mind that unlike the other CIPA cases under Section 631 and 632.7, 638.51 allows for a cause of action even where no “contents” are being “recorded” – making 638.51 easier to allege.

Additionally, companies should be mindful of CIPA’s consent exceptions and ensure they are obtaining consent to any technologies that may trigger CIPA.

January 2024 Update: US Department of State Announces Pilot Program for Stateside H-1B Visa Renewals

On January 18, 2024, the Department of State published an online tool that H-1B visa applicants can use to determine if they are eligible for the stateside visa renewal pilot program. Over time, it is likely that the Department of State will expand eligibility. We expect the online tool for the program described below to be updated as the program expands.

Domestic Visa Renewal Eligibility Assessment

In December 2023, the US Department of State announced a pilot program for stateside renewal of certain visas. For the first time in nearly two decades, a limited number of H-1B nonimmigrants will be able to renew their visas from within the United States.

All nonimmigrant visas are currently issued by US Embassy and Consular officials outside of the United States. Beginning on January 29, 2024, the State Department will begin allowing certain nonimmigrants to renew their expired and expiring visas inside the United States. Applicants meeting the requirements of the program may submit an online application between January 29 and April 1, 2024. This is welcome news as visa processing at Consulates and Embassies abroad has become increasingly unpredictable and fraught with delays.

This is a pilot program that will be available on a very limited basis initially. However, the State Department has indicated a desire to expand the program after the pilot allows for the resolution of any operational issues.

This pilot program will allow for limited renewal of nonimmigrant visas in the United States. Eligibility will be limited to applicants who(se):

are renewing H-1B visas (H-4 and other visa classifications are not part of the pilot program);
prior H-1B visa being renewed was issued by either:
Mission Canada (i.e., US Consular posts located in Canada) with an issuance date from January 1, 2020 through April 1, 2023 OR
Mission India (i.e., US Consular posts located in India) with an issuance date of February 1, 2021 through September 30, 2021;
are nationals of countries which are not subject to reciprocity fees for H-1B visas;
are eligible for a waiver of the usual in-person interview requirement;
have submitted ten fingerprints in connection with a previous visa application;
prior H-1B visa does not contain a “clearance received” notation;
does not have an ineligibility basis that requires a waiver prior to visa issuance;
10.has an approved and valid H-1B petition;
11.was most recently admitted to the US in H-1B status;
12.is currently maintaining H-1B status in the US;
13.period of authorized H-1B admission has not expired; and
14.intends to reenter the US in H-1B status after temporary travel abroad.

Beginning January 29, 2024, eligible applicants may submit an application online through the State Department website. The State Department will allow approximately 4,000 applications each week, with 2,000 for applicants whose prior H-1B visas were issued by Mission Canada, and another 2,000 for applicants whose prior H-1B visas were issued by Mission India. Once the application limit has been reached, the application portal will be locked until the next allotment of application slots are released based on the schedule. On each Monday in February, the website will reopen for new submissions. The application period for the program will end the earlier of when all available application slots have been filled, or on April 1, 2024.

Applicants will be asked to complete an online application including:

a self-assessment of eligibility for the pilot program;
a Form DS-160 online visa application;
payment of the $205 non-refundable Machine-Readable Visa (MRV) fee; and
required documents, including:
- a properly completed, electronically filed Form DS-160;
- one photograph meeting Department of State specifications;
- original passport, valid for at least 6 months beyond the visa application date;
- original or copy of current Form I-797 Notice of Action (H-1B approval notice);
- original or copy of the applicant’s Form I-94 (available online here); and
- fee payment confirmation.

Processing time is expected to be approximately 6 to 8 weeks, with visaed passports returned to applicants via US postal service or courier. All documents must be submitted by April 15, 2024. The State Department aims to complete processing of all applications under this pilot program by the program’s conclusion date of May 1, 2024.

Prior to 2004, the State Department ran a similar program, allowing for H, L, O, I, E, and P visas to be renewed by mail through a State Department office in Washington, DC. Visa revalidation in the US was terminated in July 2004 due to the State Department’s inability to collect biometric data in the US as required by post-9/11 security enhancements.

The return of this program, and the ability of participants to secure a needed visa before departing the United States, will help alleviate the uncertainty associated with foreign travel for those who must secure new visas while abroad in order to return to the United States.

2024 FLSA Checklist for Employers in the Manufacturing Industry

Wage and hour issues continue to challenge most employers, especially those in the manufacturing industry. The manufacturing industry tends to be more process- and systems-oriented and generally employ many hourly workers who are not exempt from overtime pay under the Fair Labor Standards Act (FLSA).

It is imperative manufacturers ensure they are on the right side of legal compliance. Indeed, non-compliance can trigger audits, investigations, and litigation — all of which can be disruptive, time-consuming, and costly for manufacturers. The U.S. Department of Labor (DOL), which is charged with investigating alleged violations under the FLSA, assesses hundreds of millions of dollars each year in penalties to employers.

With the new year, we offer this short (by no means exhaustive) checklist of common pay issues the manufacturing industry:

1. Donning and Doffing

The FLSA requires employers to compensate non-exempt employees for all time worked, as well as pay the minimum wage and overtime compensation. Whether pre-shift (donning) and post-shift (doffing) activities are included as compensable time is not always clear. Activities including putting on or taking off protective gear, work clothes, or equipment could be compensable time under the FLSA depending on the unique facts of the situation. At bottom, to be compensable, such activities must be found to be integral and indispensable to the “principal activity” of the employer’s work under the FLSA and the Portal-to-Portal Act of 1947.

Courts differ on whether time spent donning and doffing is compensable because these issues often implicate mixed questions of law and fact. Moreover, collective bargaining agreements can affect whether time spent changing clothes and washing is compensable for the purposes of determining hours worked for minimum wage and overtime calculations under the FLSA. Employers should carefully review their policies to ensure the compensability of pre-shift or post-shift activities being performed by non-exempt employees.

2. Rounding Time

Accurately keeping up with time worked by non-exempt employees is critical to compliance with the FLSA. Further, employees forgetting to clock-in and clock-out timely is a persistent issue. While the FLSA allows employers to round employees’ clock-in and clock-out times rather than pay by the minute, it is generally unnecessary (and not recommended) with today’s sophisticated time clocking systems. If employers choose to round time, they must ensure that any rounding policy is neutral on its face and neutral in practice — that is, the policy rounds both in the favor of the employer and the employee at roughly an equal weight. For employers engaging in rounding, audits are crucial as even a facially neutral rounding policy that, in practice, has disproportionately benefited the employer and cumulatively underpays the employees can be found to violate the FLSA.

3. Meal Breaks

Under the FLSA, employers must compensate for short rest breaks that last 20 minutes or less. However, employers do not have to compensate employees for a bona fide meal break, which ordinarily lasts at least 30 minutes. Importantly, an employee must be completely relieved from work duties during this uncompensated time and cannot be interrupted by work (even for a short time). Indeed, some courts have held that, where a meal break has been interrupted by work, the entire meal break (not just the time when work was performed) becomes compensable.

To ensure compliance under these rules, employers should have policies and practices in place so that employees can take an uninterrupted meal break. Employers should also have a well-communicated reporting system in place for employees to record any interrupted meal break to ensure the employee is compensated for the meal break or, when possible, a new meal break is scheduled.

4. Regular Rate

A common and incorrect assumption many employers make is that overtime pay under the FLSA is calculated at one-and-a-half times a non-exempt employee’s hourly rate when they work more than 40 hours in a workweek. In fact, the FLSA states overtime is calculated based on the non-exempt employee’s “regular rate” of pay. The FLSA requires that all payments to employees for hours worked, services rendered, or performance be included in the “regular rate” unless the payment is specifically excluded in the law. Thus, any non-discretionary bonuses, shift differential pay, and other incentive payments such as commissions should be included in the regular rate of pay calculation for purposes of calculating overtime under the FLSA.
This is relatively easy when a bonus is paid during a week where the non-exempt employees work more than 40 hours, but it can become complicated when the additional pay is paid on a monthly or quarterly basis. In this scenario, the payment must be averaged out over that longer time period to determine the regular rate such that overtime can be properly calculated. Thus, employers should review their payment processes on the front end to ensure compliance before any small errors or omissions (quite literally) multiply out of control.

Finally, state wage laws should always be top of mind as well. Employers should work with their employment counsel to ensure compliance with all state wage requirements.

February 2024 Visa Bulletin: Advancement of Priority Dates for Employer-Based Petitions Remains Minimal

U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State have not indicated significant advancement in the priority dates for employer-based immigrant petitions, continuing the fiscal year (FY) 2024 trend of long wait times for immigrant visas.

Quick Hits

USCIS and the State Department reported minimal movement in the EB-2 and EB-3 categories for Mexico, the Philippines, and all other chargeability areas except India and China.
USCIS authorized use of the Dates for Filing chart.
Continued limitations on immigrant visas particularly impact chargeability areas of India and China where employers and individuals had hoped to take advantage of shorter wait times in the EB-1 category.

The February 2024 Visa Bulletin

USCIS will continue to use the Dates for Filing chart in the February 2024 Visa Bulletin in determining eligibility for I-485, Application to Register Permanent Residence or Adjust Status, filings. The Dates for Filing chart reflects priority dates anticipated to become current during the fiscal year, whereas the Final Action Dates chart reflects priority dates considered current and available for the specific month. This means that while an applicant may file the I-485 based on the Dates for Filing chart, the application will not be adjudicated at least until the applicant’s priority date becomes current on the Final Action Dates chart.

In summary, there is no advancement in final action dates for China and India in all employment-based categories except that the Other Workers category for India has advanced by one month. For all other chargeabilities, Mexico, and the Philippines, the EB-1 category remains current, the EB-2 category advances by fifteen days, the EB-3 category advances by one month, and the EB-4 Certain Religious Workers category remain the same.

The Final Action Dates chart is shown below.

Source: U.S. Department of State, February 2024 Visa Bulletin

USCIS has confirmed its continued use of the Dates for Filing chart for adjustment of status filing purposes. However, the dates for filing remain the same as in the January 2024 Visa Bulletin in all categories for all countries.

The Dates for Filing chart for employment-based categories follows below.

Source: U.S. Department of State, February 2024 Visa Bulletin

Impacts of Immigrant Visa Backlogs, Slow Movement, and Retrogression: EB-1 Considerations

In the January 2024 Visa Bulletin, we saw some forward movement in certain employment-based categories, particularly in the EB-1 category. This movement aligned with the hope that all EB categories, including the EB-1 category, would advance significantly or at least steadily. USCIS and the State Department had also indicated holding this hope in the August 2023 Visa Bulletin. However, the Visa Bulletins for October 2023, November 2023, December 2023, and January 2024 showed slow movement, with the Visa Bulletin for February 2024 indicating little to no movement at all.

The lack of advancement in priority dates particularly impacts those chargeable to India and China. While those chargeable to India and China have historically experienced long green card wait times in the common categories of EB-2 and EB-3, many employers and individuals choose to pursue the EB-1 category in hopes to secure the green card in a much shorter time. The benefits to an employer if a sponsored employee receives a green card earlier is that there is a reduction in immigration costs and a reduction in time that an employer would be beholden to immigration regulations. The employer can also rest assured that their talent can be retained beyond the limits of a nonimmigrant visa status.

However, despite the retrogression of the EB-1 categories for China and India, there still stands a benefit that visa availability wait times for the EB-1 category remains much faster than any other category. Employers considering pursuing the EB-1 process for their employees may want to note that the EB-1 holds an extremely high standard. The EB-1 is generally reserved for highly talented individuals who have risen to the top of their field or individuals who will work in a managerial capacity in addition to meeting other narrow criteria.

Don’t be Content with Subpar Content: Five Content Marketing Best Practices

In the past, we have outlined eMarketing best practices, integrating your eMarketing system with other marketing technology, and even discussed using artificial intelligence in your email marketing strategy. However, if you’ve got all the elements in place and your email marketing metrics are still disappointing, what else can you improve? Well, let’s address the 10,000-pound elephant in the room – your content.

For many law firms, content is typically written by lawyers. This can be a challenge because lawyers by trade, are legal writers – favoring a particular writing style that often is not favorable for eMarketing purposes. This leaves the marketing department to attempt to shape the content to make it as effective as possible.

So what is a marketer to do when faced with a partner who is convinced that posting 5,000 words (1,000 of which are footnotes) on the latest regulation change is the best way to communicate with clients and prospective clients? Here are five suggestions and talking points to help build consensus and buy-in for improving your firm’s publications and content marketing.

1. Best of the Bunch

Take a look at some of your firm’s recent publications by practice area. Are there one or two groups that consistently provide concise, well-written content that is not drowning in legalese? Next, it can be a good idea to look at their metrics. If their mailing list is in good shape, they should also have some of the best open and click-through rates at the firm.

These are the folks to hold up as examples of how to correctly write marketing content. Anyone who has been a marketer in a professional service firm knows that capitalizing on the competitive nature of professionals can be a powerful tool for changing behavior. If you can find one or two practices with superior metrics and can tie it to their content, then you have something to hold up as an example to the rest of the firm.

2. Train ’em Young

Today, associates have grown up with unparalleled access to the internet, email, Twitter (now X) and LinkedIn, so they get it. Firms should capitalize on the technology-savvy and sponge-like nature of the younger members and utilize them by creating content that resonates with their clients. They will likely already understand the importance of concise messaging as the key to effective communication.

3. Break Down Their Mailing Metrics

Lawyers tend to write for other lawyers. As marketers, we need them to write for people from all walks of life. Remember, many CEOs probably don’t have a JD. A quick analysis of their mailing lists may help persuade them that they are not just sending to other lawyers. It is important for lawyers who write to understand that well-written and relevant pieces are often the ones that are most likely to be circulated throughout companies.

Human resources and marketing, for example, are the two departments that are often the ‘beneficiaries’ of law firm alerts. Writing in heavy legalese can be counterproductive for these groups. For attorneys who are still hesitant to alter their writing style, remind them that lawyers also read newspapers, magazines, and even novels. Some of the most important and complex issues of our time, involving matters such as foreign policy, terrorism, taxes, the economy, and healthcare, are communicated every day in these publications—without the use of footnotes.

4. First Is Not Always Best

While it is important your clients know your firm is on top of recent developments, simply sending out a regurgitation of the new regulation doesn’t necessarily convey that your firm understands the impact of the law on the client’s business. Yes, you want your email on the topic to be among the first received, but there’s more to it. You need to demonstrate an understanding of the implications of the law by addressing questions like, “What does this mean for me? Do I need to be concerned? What can I do to prepare or minimize the risk for the company?”

Both speed and depth are important when it comes to content marketing. Get the alert out quickly and explain why it is important to your readers. Later, your lawyers can write a longer, in-depth piece for an outside publication which can also be forwarded to their mailing list.

5. Size Matters

65% of digital media consumption occurs on mobile devices. No one, including your own lawyers, would be inclined to read a 3,000-word piece on their iPhones, no matter how much time they have. The fact is, today’s professionals use their phones to consume quick-hit content – get in, get the jist, and get out, onto the next. This means we need to meet them where they are and produce similarly easy-to-digest content.

An excellent way to help dissuade your lawyers from writing lengthy, dense alerts, is to appeal to their billable hour. Long pieces take longer to write – when a piece half the size will not only take them half the time but ultimately increase readership by twice as much.

Multistate Coalition Supports EPA’s Proposed Revisions to the Safer Choice Standard

As reported in our December 5, 2023, memorandum, the U.S. Environmental Protection Agency (EPA) proposed updates to the Safer Choice Standard on November 14, 2023, that include a name change to the Safer Choice and Design for the Environment (DfE) Standard (Standard), an update to the packaging criteria, the addition of a Safer Choice certification for cleaning service providers, a provision allowing for preterm partnership termination under exceptional circumstances, and the addition of several product and functional use class requirements. 88 Fed. Reg. 78017. On January 16, 2024, California Attorney General Rob Bonta announced that, alongside a coalition of 12 attorneys general, he submitted a comment letter that:

Supports EPA’s proposed revisions to its Safer Choice Standard;
Recommends that EPA not allow products with plastic primary packaging to use the Safer Choice label or DfE logo;
Recommends that if EPA does allow products with plastic primary packaging to use the label and logo, EPA should prohibit the use of chemical recycling in meeting the proposed standard’s plastic packaging recycled content requirements; and
Calls on EPA to exclude any products or packaging that contain any per- and polyfluoroalkyl substances (PFAS), “whether intentionally introduced or not.”

Huawei U.S. Patent Grants Drop 24% in 2023; BOE Drops Out of the Top 10

Accordingly to analysis by Harrity Patent Analytics, Huawei ranked 10^th for US patent grants in 2023, down 3 spots from 2022 with a 24% drop in patent grants. BOE Technology Group Co., Ltd. dropped even further to 19^th down from 8^th in 2022. BOE had a 38% drop in granted US patents. Tencent was 54^th this year with an 11% drop in patent grants. Oppo was down 32%. Baidu was up only 1%. Xiaomi was down 7% and didn’t make the top 100 in 2023. Alibaba was down 49%. In contrast, US companies advanced with Qualcomm patent grants up 46%, Alphabet (Google) up 23% and Apple up 11%.

The drop in Chinese patent grants reverse the trend of growing US patent grants for Chinese companies. Huawei’s patents grants in 2022 were up 3%, BOE up 27%, Baidu up 43% and Xiaomi up 33%.

Possible reasons for the drop in grants to Chinese entities may include a poorly performing Chinese economy, the reduction and elimination of government subsidies for foreign patent grants, the impact of COVID-19 on patent application filings the past few years; and geopolitical tensions.

Top 10 Chinese Grantees of U.S. Patents in 2023

Rank	Company	2023 Patents	% Change from 2022
10	HUAWEI TECHNOLOGIES CO., LTD.	2290	-24%
19	BOE TECHNOLOGY GROUP CO., LTD	1695	-38%
54	TENCENT HOLDINGS LTD	702	-11%
67	BAIDU, INC.	626	+1%
77	LENOVO GROUP LIMITED	530	-16%
84	OPPO MOBILE TELECOMMUNICATIONS CORPORATION	516	-32%
101	XIAOMI INC.	461	-7%
115	TSINGHUA HOLDINGS	372	-3%
121	ZTE CORPORATION	351	-14%
122	BYTEDANCE LTD.	350	+119%

Source: https://harrityllp.com/patent300/

New Diligence Opportunity for Financial Institutions

On Jan. 1, 2024, the Corporate Transparency Act (“CTA”) took effect. As a result, all business entities, unless expressly exempt by the CTA, must file Reports of Beneficial Ownership Information (“BOI”) with the Financial Crimes Enforcement Network (“FinCEN”), a unit of the U.S. Treasury. Under the CTA, “financial institutions,” i.e., banks and other entities that provide financings and are subject to the “Know Your Customer” and “Customer Due Diligence” regulations of FinCEN pursuant to the Bank Secrecy Act, the USA Patriot Act, and the Anti-Money Laundering Act of 2020, may access the BOI on reports filed with FinCEN.

To gain access to the BOI, the financial institution MUST:

Obtain the written consent of the customer, i.e., the borrower, guarantor, or other loan party, in connection with the diligence process required before entering a business relationship with the customer, or as part of the continuing diligence required in an existing relationship. Accordingly, forms used by the financial institution to open or to continue an existing business relationship must include a clear and conspicuous provision in which the customer gives consent. This will probably require a complete review and revision of those forms;
Determine that obtaining access to the BOI is reasonably necessary for the financial institution to meet its diligence obligations. That determination should be spelled out in the written request to FinCEN for access; and
Acknowledge the scope of confidentiality obligations with respect to the BOI obtained, including the limited use permitted of the information, as well as safeguarding that accessed BOI from misuse.

Financial institutions should be prepared to request access to BOI as a matter of course. In any case where a customer engages in violative activity, and the BOI would have alerted the financial institution to possible risks, that institution could be exposed to sanctions by its principal prudential regulator and/or by other law enforcement agencies.

Tag: business

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