Tag: legal

Episode 9 – Mental Health and Relationships in the Legal Industry with GrowthPlay [PODCAST]

Rachel and Jessica discuss the new focus on mental health and connection within the legal industry. Deb Knupp from GrowthPlay joins with her expertise and shares how GrowthPlay encourages law firms to get away from transactional practices and instead work toward positive talent and client experiences.

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

 

 

INTRO  00:02

Hello, and welcome to Legal News Reach, the official podcast for The National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO, law firm best practices and more.

Rachel  00:15

I’m Rachel.

Jessica  00:17

And I’m Jessica. And we’re the Co-hosts for The National Law Review’s Legal News Reach podcast.

Rachel  00:23

In this episode, we’re excited to talk to Deb Knupp, Managing Director for GrowthPlay. Deb, would you like to introduce yourself?

Deb Knupp  00:28

Well, I would. And thank you all so much for having me. And I have the good fortune of working in a business growth play. And we are a consulting firm that really uses a research and data driven approach to help our clients accelerate revenue, really amplify and elevate talent, and do so all in the context of creating exceptional client experiences. And so I principally work with law firms, we’ve we’ve served more than 50% of the am law 200. And we’re coming upon our 400 Law Firm engagement over the last 20 years. So it’s been a great ride, and what an honor it is to get to be with you guys today.

Rachel  01:11

Well, it’s an honor for you to join us. I’m sure all that expertise will be really useful to our listeners here. So one of the main focuses we wanted to really dial in on here are a lot of the opportunities created by the pandemic and where the legal industry goes from here. I think a lot of times people talk about the challenges of COVID-19. I think less often we talk about, you know, sort of the great opportunities that this pandemic created for the industry. So what do you think will be the greatest lessons learned that could propel the legal industry forward into the best version of itself,

Deb Knupp  01:43

You’ve heard, sometimes people say, you know, let’s not waste a good pandemic, and not get the lessons that we want to learn. And I think that the experience in the legal industry, and really what occurred in March of 2020, like it was across the world really required a certain level of crisis response, and how to navigate and abate fear, and then very quickly engage in what I think will be a pandemic word for the ages pivot to an approach that really allows business to continue and clients to be served. And when you look at some of the more significant things that I think law firms gained or are gaining, having responding to the pandemic is first, I think we obliterated the myth that you have to practice law only in the confines of bricks and mortar. I think that the the idea of having remote work or having a capacity to perform billable work at a quality level, at a responsiveness level, I think for many years pre pandemic, it was often assumed that the quality and the value is going to be achieved when it was done live and in the context of a building. And what I love now is that we have not only seen the continuity of excellence, and responsiveness and value continue to be generated over the last 20 months, I think there’s a lot of evidence to support that maybe we’ve seen an improvement in quality and responsiveness and engagement with clients. So I think in many respects, I think we’ve added another dimension into professional services and billable work delivery, that has the capacity to continue to drive even more value for clients and be incredibly valuable to talent. I think the second thing that the pandemic has certainly taught us is how critical it is to have systems for collaboration and communication. Again, if you look at the light switch, you know, immediately there was a grand exposure of how on networks, many organizations were in keeping connections with both internal relationships and client connectedness. And so again, I think that the heavy investments that were both necessary to remain in business and now I think are vital tools for ongoing connectedness and collaboration, I think we’re going to see a real benefit for the comfort and how we connect with clients. And even looking at us right now, as we’re connecting on a platform, you know, zoom and other virtual and web based platforms, I think there’s a lot of value in building greater depth of intimacy and relationships, greater access, for communication and connectedness. And I think the facilitation of utilizing platforms. Modernizing, if you will, the practice of law through the utility of technology, I think we got a grand, you know, drinking from a firehose kind of moment, to sort of prove that concept. I think the last thing and I think this is an important thing for us to continue to pay attention to, is there’s never been a place in time, at least in my lifetime, where I’ve seen the playing field absolutely levelled when it comes to the integration of work, and a person’s personal life and how we were all universally disrupted. In this space where our human connectedness and the desires and wants and needs for human flourishing, we really saw a reset,

Rachel  05:10

As you sort of alluded to, many law firms have done pretty well. And they perform well financially this past year. So what do you think will be the most important growth priorities for firms as well as sustain that growth long term?

Deb Knupp  05:24

Well, I think first and foremost, to sustain growth is not to believe that a blip is, is going to be consistent. If you’ve seen an inflection in your practice or growth in your practice, and just making the assumption that the volume of work the demand for work, sometimes what we see in times of prosperity is you are tempted to put a lot of investment in things because you anticipate that that pipeline in that workflow is going to have continuity, I think it’s really important to discern what financial growth have you experienced based on pent up demand, that will have a shelf life that will sort of run a course, and then re establish sort of what a new normal level of demand and interests are, and where we have seen innovation drive new lines of revenue, new ways to engage with clients in productive billable work, and really pour your attention into those kinds of services. As a good example, I think law firms have certainly gotten a lot more creative, on how to think about the advisory part or the counseling aspect of the practice of law versus maybe the transactional or dispute related parts of practice of law. So I think our ability to widen the purview of the advisory services, quality Council, and deliverables for which clients are delighted to invest in pay, I think we’re going to see a real opportunity for that kind of prioritization.

Rachel  06:50

So how are firms paying attention to the intersection of client experience and talent experience? And who’s driving that growth?

Deb Knupp  06:57

Well, I think we can say confidently, that those two things are inextricably linked, right. There’s no win, particularly in professional services. And more specifically, within a law firm, I think what we have absolutely gleaned certainly in the last 20 months, but as we even look beyond is that you cannot give away what you don’t possess. And I think that when we look at, if you’ve got an engaged workforce, if you’ve got talent, that loves the work that feels meaning and purpose in their work, they feel like they’re a part of something where their identity into something greater than their own individual practice or own individual contribution. If you’ve got a workforce that is really tuned in to that experience, it absolutely allows you to give a much higher, more high value, a premium way of really elevating what it feels like to be a client. When you are a person who feels invested in you have greater abundance to feel a capacity to invest in others. And so when you look at the intersection of the great resignation, you look at that talent shortages that are certainly come into play. When you look at some of the trend data around associate recruiting and retention, I think it’s incredibly important that law firms continue to see that that has as much to do with billable work and client development and business development, as you may be putting in trying to engage clients and invest in clients and, and do work for clients. And so I think there’s a great level of intersection. And I think law firms that are that are faring really well and will continue to stay in growth are putting as much attention in the talent experience. As we might have seen historically, pre pandemic, a lot of firms really investing what it means to create an unparalleled client experience. So I think these two things are very synonymous and going hand in hand. And I suspect that firms that win in the future will continue to see them as not disparate, but absolutely interdependent as we look ahead.

Jessica  08:58

That’s so great that you mentioned putting that extra energy and work into your clients. And I think that also is going to translate to your workers. Of course, a lot of firms right now are doing the diversity, equity, inclusion or DEI initiatives. They’re just trying to grow their practice to be better and connect with their clients in that way. So what are you seeing as far as DEI? What’s working well, what’s not working? I’d like to get your perspective on that.

Deb Knupp  09:24

I’ll start with just maybe some of the more daunting statistics, I think we have to really pay attention to some of the larger trend lines when you look at the research and data that comes out of, you know, reputable institutions that are looking at, you know, minority corporate counsel and how we’re seeing, you know, business demand and how firms are faring in responding to client or outside counsel, inside in house counsel, looking for their outside counsel to really match and meet diversity expectations. We have not yet fully seen a connectedness play itself out where numbers are increasing retentions increasing the mix of diverse counsel and serving and meeting client demands. We have not seen the lift in performance as of yet. And so the question really becomes, well, why not? Like what what’s missing here? I saw a recent statistic HBr consulting, does an annual law department survey. And as they look at all of the criteria, that out that in house law departments are looking for from their outside counsel, the single biggest jump in prioritization that they saw from their 2020 survey was a 14% increase in dei being a priority for selection and retention of preferred counsel. So demand is there. In house law departments, clients are saying, we want more diversity, equity inclusion, intersections with our firms, we want that and to see it at a double digit of growth and prioritization, I think that if you’re if you’re an outside counsel or private practice, we need to pay attention to this. At the same time, how we show up, though, in response to that, I think is where the innovation, ingenuity and creativity really have to come into play. And so when I think about firms that are doing really well, number one, I think they’re changing the question. The question that underscores a lot of dei initiatives right now is how do we get more women and lawyers of color to equity partnership, and that has been the brass ring of standards. When we think about retention, when we think about growth, it is all been predicated on, we know we’re being successful when we have more women, more lawyers of color in the equity partnership ranks or in the leadership ranks of a particular law firm. And while that is certainly a key indicator of success, if your firm is a destination firm, where lawyers of color and women and and LGBTQ attorneys can thrive. And that’s not the only metric. And in some cases, the desirability of being an equity partner in a law firm may not be the only destination that you might see your diverse talent wanting to move towards. So firms I think are doing well are widening the question, which is to say, what are all the paths of participation that would be desirable to retain the best and brightest diverse talent? What would have to be true about our firm and making those paths available? One path is ownership equity partnership. And are there other pads? Are there other designs of work structure, profile roles, structure compensation structures, that would really allow people who would be considered under the umbrella of diversity for them to want to work, not just based on one singular metric? And I think if we can begin to widen the question to say, What would have to be true about our firm, we’re diverse talent wants to do their best work, I think you’re gonna see a lot more innovation, a lot more adjustments in role design, I think our whole construct of associates and income partners and equity partnership and counsel, I think we’re going to see a shuffling of new jobs to emerge. I think what we think of is full time and flex time, I think we’re gonna see some radical transformations of that, I think how people get compensated, what it means to, you know, be available for various aspects of client service. I’m already starting to see firms start to address that. And I think those are incredibly positive things. I think the last thing that I’d say, again, where there’s still need, but I can tell you that firms are starting to invest in it, I think, a big reason why we’re seeing so much exit and again, pandemic is certainly revealed, you know, a big part of the great resignation has disproportionately impacted women. And I think when you look at the division of labor, and the realities of what it looks like to be a woman at work, who also is a parent or is caring for elderly parents or has a senior parent level of dependent care, we have seen this the statistics are highlighting is there is disparity, there is a significant amount of difference. And so I believe that law firms are really any organizations who can look at the data and say we acknowledge the data, and then design for things where again, not withstanding workforce availability or workforce, job designing in order to really meet the demand. So that resignation is not the only option. I think firms are going to have to start looking at different ways that we can attract and retain on a season of life basis, where people can move in and out of work velocity based on the other demands for time, whether that’s child care, elder care, but I think there’s also other demands on time, you know, based on academic interest or a desire to step away and maybe work in house be in business for a year or two and then returned to private practice. I think this will not only be useful across the entire workforce, regardless of diversity, I do think this is going to have a unique positive benefit. When we apply this in spaces where we’re navigating the retention and growth of individuals who would be considered diverse.

Jessica  15:19

I’m so glad you mentioned all of that, because so much of this labor shortage… I mean, I think a lot of these issues we’re covering today is why this is happening, you know, firms are finally -and I would actually argue any workplace- is finally spending that extra time if they can to put, you know, DEI initiatives as part of their brand, or as part of their firm skeleton, basically, their foundation, and even just taking care of employees differently. I mean, I think for so long companies weren’t really thinking about how can we take care of our employees mental health or, you know, work-life balance, and now that’s such a big focus. And I think it’s for the better in, especially in the legal industry? What are you seeing law firms do in their culture that can benefit or has benefited health and mental health in the workplace.

Deb Knupp  16:12

So first, when it comes to the great work that law firms are doing, I want to I want to highlight something that’s so important. In fact, there was a great research statistic that BTi consulting published is that the the large percentage of clients that have absolutely no idea what your law firm is doing in this space of Dei, and also in the space of employee health and well being. And so I think it’s critical to understand that when if you are a firm that is leaning into these things, and doing a lot to invest, and try to sort and to figure out and to and to be creative and having the freedom to redesign and re reimagine. I think it’s really important that where you were doing that not only making that known to your clients, certainly from a promotion and reputation building, I think it’s also really important to invite your clients into that conversation. I can say that right now, some of the best exchanges that I’m watching is that law firms aren’t trying to design these responses in a vacuum, but they are opening it up to be resourcing benchmarks and best practices from their their clients and other companies and other industries. So that we don’t have to go it alone. So let me just start there by responding and saying, Look, this is a place where there’s a lot of hard stuff going on. So your ability to not make it visible to your clients and also to invite others in. That’s that’s PERS response. More specifically, though, just on the on the construct of the mental health. So when you think about the shadow pandemic, and some of the things that experts are citing, and this is really at the risk of being my namesake of Debbie downer, I’m going to tell you that we need to wake up to this, because I don’t know that we’re talking about this enough, is that many mental health experts are suggesting that the cost and consequence for depression, anxiety, addiction, suicide, that the cost and consequence will be far greater and loss of life, and loss of productivity that we will see the crisis peak in 2024, that there is predictions that more people may lose their lives related to trauma coming out of the pandemic than the people who actually died from COVID-19. Now, if that doesn’t start to get our attention, we got to tile in and say, look, it’s like a tsunami that’s looming out there. And the question is, what are we doing right now? Because even if our own cultures, our own people aren’t a part of that statistic, where they aren’t struggling with trauma with mental health conditions with suicide, the probability that they have a plus one relationship in their life is almost assured that if it is not happening to your talent who works at your firm, I want you to examine how many of them are parents or aunts or nephew or aunts or uncles or grandparents to children between the ages of 18 to 24. At one point during the pandemic 25% of people aged 18 to 24 25%, one in four, contemplated or acted upon suicide. Think about one in four people between the ages of 18 and 24. How many people work at your law firms or your places of business, that have relationships with people in that age, not the least of which thinking about the impact of those incoming first years, who are just just a little older than this particular demographic. Consider this other difficult statistic. When you look at the rise of eating disorders, and the rise of anxiety and depression in diagnosable mental health conditions. Children between In the ages of 14 and 18, saw 300 to 400% increases in these diagnoses. And that doesn’t even take into account all of the other kinds of things that have been looming out there. With regards to social media and the impact of bullying, isolation and various other comparative data that really frightens me and as a parent of three teenage girls, I have to tell you, I’m paying attention to these things. So when a law firm can step back and say, Look, while this may not be happening today, we may not have people right now for whom this is an active issue. If we look ahead to the year 2024, what would we be doing today, in anticipation that this will become a thing for our firm or for our clients, and their plus ones. So my counsel or my recommendation to every managing partner and leader and law firms that I get to work with is to first of all acknowledge that we’re not separated from this. And in many respects, given the nature of billable work and the pressures to Bill and to be productive, that in some cases can exasperate these particular issues at a project at a pretty high clip and high calling. So I think that cultures that are going to be doing really well and addressing this are starting to understand that while we guess our EAP, or employee assistance programs, for access to mental health care, is something that is a baseline table stakes of employee benefits or or talent benefits, that’s a great place to start. I think that we also have to create more opportunities and access to creating conditions so people know how to be with people in suffering, that we that we master the communication techniques that you often learn in therapies, like the technique of validation, how do you hold space for people while they’re suffering? How do you not relegate someone into shame and isolation when they’re struggling with alcohol or drug addiction, or they have someone in their life that is, so I think it’s not only making sure that we have the care and support leaves of absence opportunities for people to have space and flexibility. I think we also have to create cultures that create the destigmatizing. One of my maybe my most compelling experiences during the pandemic, around this particular issue was a law firm that we work with Will the managing partner, in an effort to address the mental health conditions of the team, he himself created communication and visibility to a lifelong battle and struggle that he had had with depression, anxiety, and suicide, and how he made that visible and how he connected Himself to those sets of conditions as a role model. And as a way of saying, Look, you can look upon himself and say he’s the managing partner of a law firm. He’s one of the most successful people’s people in, in this ecosystem, and yet, his willingness to make visible his own journey, and how he’s navigating, and how he continues to create care around this. It’s that kind of courage that I think will allow us all to navigate the shadow pandemic with more grace, more compassion, more empathy, and as a result, more lives will be saved.

Jessica  23:08

I think that’s such a good thing that that attorney did, because mental health in particular, and you know, even in a regular work place, it’s such a silent I guess, the silent visitor, if you will, of people who work it even in a physical office, let alone remote work or hybrid, where you don’t even you already don’t really hear it or see it. But then you have people working remote, it’s harder to reach those people in general. You know, is there a way? What are some specific things firms can do up front to prevent some problems from starting in the first place? Are there any, you know, tactics that specific firm members have used Besides sharing their story? Because that’s a very good, I think, connective way to connect with people.

Deb Knupp  23:55

Absolutely. So I think it’s so in addition to I think creating systems for visibility and messaging, where courageous people can put a face against things that maybe are stigmatized, I think that that’s just as a general sense. Where you have willingness or courageous people who want to be advocates in this space and creating pathways for those stories to be told or those those messages to be shared. I think that that’s that’s a strong value, and will often fall under the umbrella of sort of firm communications. I think a secondary, as I’ve already mentioned, is I think taking a fresh look at your benefits programs and really understanding you know, is there parity and access to mental health coverage and and what does that look like with regards to essential priorities in the benefits plane designs, and how you can come alongside folks who may be struggling in getting proper care. In large part because of financial scenarios. I’ve seen more firms establish what I’d consider most like benevolence related funding such that that people anonymously can or to the firm I’m anonymous, but people can tap into hardship in a way that allows coverage if their benefits plans run out, or if there are not places where that kind of financial reinforcement can be made available. And I think that can be true not only in mental health, but that’s also when you’re navigating home insecurity, you know, food insecurity, and other conditions. So I think those are certainly places to look. I think, additionally, the advent of new benefits. One of my favorite things that I got exposed to during the pandemic, is an organization called home thrive and they they provide elder care, concierge services for eldercare, I think a growing area of depression and anxiety isn’t isn’t a person who is aging parents. The isolation, the shame, the struggle, and knowing how to navigate where parent, your child becomes parent, and how do you navigate that there’s an entire Benefits Service that brings that kind of elder care, concierge service and really helping provide resources to people like me, who have to navigate caring for an aging parent or an aging loved one. And so I think at looking innovatively and how to do that, we saw a lot of that in the childcare space. So again, I think that additions of things like elder care another arena, I’m also noticing a lot of firms are creating, for lack of another sermon, the construct of resource groups, where people can come together around particular areas of affinity, where they may be navigating particular challenges or struggles. So again, when you look at individuals coming together around affinity, where their struggles with maybe diversity related resource grouping, I think is something that’s a little bit more popular and prevalent, certainly has been seen in major corporations, I think law firms are starting to build that into their larger affinity related programming. But I think there’s also resource groups when you can bring community together when it’s navigating, you know, parenting teenage children, or working with seniors and navigating elder care and how to navigate that, or how you navigate some of the challenges that may come with the stability of marriage or, or family dynamics. I think firms that this understand that we need to be our whole self, to our workplaces. And then we need to really examine how we can create space and safety for people to leverage connectedness and community. In some ways, it makes them even more loyal, more connected to your place of work. Because these kinds of extra things are made available to care for the whole person.

Rachel  27:25

I’m so glad we’re talking about mental health today, because I think it’s often important to destigmatize it, I think the more people talk about, especially their own struggles, and they’re not ashamed to find help, but I feel like it’s often like almost an invisible disease. Like if people don’t talk about it, then people don’t know about it. And they feel alone. And I think talking about struggles and ways that companies can really help their employees think is really helpful. So one of the other topics we wanted to touch on a little bit today was more relationship building. So creating and maintaining relationships, legal industry. So what are some ways that law firms, legal marketers can create authentic relationships with clients?

Deb Knupp  28:04

Well, I like to think of this as a starting point, Rachel is that we got to recognize that there’s a very fine line in stalking someone and staying connected to them. And they’re really the distinction that we often say is really in the in the zone of how welcomed is the effort to stay connected, how welcomed is it by the receiver, in wanting to be engaged with you as a firm. And so when we look at legal marketing techniques, and how to frame a client centered, or an other centered approach, to having authentic reasons to stay connected, we find really simply that it can fall under a construct that we call it growth, like the three ends. And the three ends are almost failsafe when you think about these three ends from the receivers perspective. So if you think authentic reasons to connect with a client, or potential client or referral source, you need to have one of these three things in place. So in number one, is invitations. A great way to stay connected to your clients is invite them to things that they would find beneficial, inviting them to be a part of activities, conversations, education scenarios, inviting them to things that lift them up, allow them to, to flourish, to be smarter to be stronger in ways that are welcomed. And so if you want to build a relationship with a client and you want to stay in front of them, one you need to understand what are the kinds of things that your clients like to do? What are the kinds of things that they are aspiring to grow and learn, personally and professionally so that when you are orienting the end of invitations, that you have far more readiness to activate the end of an invitation in a way that will increase the odds that not only will it be received, but it will received and will feel like a relationship investment. Think the second end is the end of introduction. There’s no better way to really cultivate relationships with your clients and potential clients, other than when you’re introducing them to people that they actually want to meet. Now, this the underscoring, is actually want to meet. This is not about ambush introductions, where you decide that two people need to meet and grab coffee or have a conversation. This is though the permission based in of introductions, when you can ask clients, you know, the kinds of people the kinds of service providers the kinds of help that they’re looking for, again, professionally, personally, maybe within the law firm, maybe outside and larger professional services, when you can facilitate the ends of introductions, that a client would actually welcome and find valuable in their network, there’s a real value and it will feel like a relationship investment. The final end of the three ends is insight or information sharing. And so once again, if you can create an inventory of insights, that allow your clients to be smarter your clients to be lifted your clients to have benchmarks, or you can seek insights, meaning the inquiry of voice of the client research, that exchange of insights and information, again, as long as it’s welcomed, and it’s on point with something that the receiver would like to receive. When you do that, and you dial in with that kind of sharing or inquiry. Again, it feels like a relationship investment. So I think the answer in any kind of ongoing sustainable relationship investment is to pay attention to the three ends, and making sure again, that they’re tailored to the receivers. perception of value.

Rachel  31:33

I wonder if you could also talk about what some of the key like, x-factors are in terms of like legal marketing at law firms.

Deb Knupp 31:40

We know we’ve talked a little bit already about talent experience and client experience, which are often referred to as sort of CX, which would be an x-factor for client experience when TX or EX is sometimes you see it for employee experience or talent experience. And so I think those are two that we need to be paying attention to. And really, again, at the intersection of how those things are informed, I can tell you that there are a few other x-factors that I think are really important to examine and integrate. When we look at things like brand experience, when you think about what it feels like to be in your ecosystem, on your website, receiving your your press releases, you know, being on your news feeds, and your newsletters, and hearing about the things that you’re promoting the accolades, the awards, the causes, the charity things, the pro bono things you’re doing. All of those things sort of underpin this construct of a brand experience, where you can not only engage brand experience, for the purposes of getting more recognition, you actually can look at your BX brand experience in giving more inspiration to others. Of course, I would be remissed a growth play, we often look at the RX, which we refer to as the revenue experience, or the sales experiences it might be in recognizing that when you’re engaging in your go to market strategies, in the name of business development, that the revenue experience doesn’t have to feel like an exercise of trying to strong arm or manipulate somebody to give you something, you actually can have that experience feel like an act of service. And when you design and plan for when you leverage all of your business generating to leave the prospect or that or that referral source in a better space, utilizing the three ends that I mentioned earlier. And investing in that prospect or referral source, the revenue experience not only will allow you to get revenue, it will also allow you to give that value of wisdom in a way that will leave a mark. And finally, when we look at revenue experience, it is about getting revenue, it’s about getting the sale, but it’s also about giving the deposit of wisdom. So you can look at the interplay of those 4x factors, I think you begin to see brand new avenues and channels that could lead to generating opportunities overall for growth.

Rachel  33:53

How does that then play into some of these, you know, G3 selling strategies that we’ve spoken about, that legal marketers can focus on? Well, when you look at the construct of getting things, I think I get strategy, which is one of the G’s, and clearly is something that needs to be paid attention to. And we’ve got to always be replenishing our pipeline to look for that net new opportunity to bring the client in. So I get Strategy is a strategy of prospecting, referral, generating, pursuing targeting, engaging until such time as there’s billable work. I think that the other two G’s or something just to highlight quickly, I think there’s also a real strong importance on your growth strategy. A lot of law firms talk about the benefit of cross selling, but yet not always as impactful or effective. So when you think about the strategy of grow, for purposes of cross selling, we need to be looking at that strategy with a keen eye because the cost of sell is considerably lower. And we’ve got to look at the infrastructure around cross selling or growth of an existing client to make sure we’re not falling into the impediments or traps of how do you recognize people are incentivized or create collaboration in a way that’s really in service to clients. Think the last few years the guard strategy, this is probably the area that gets most overlooked. And I think the pandemic really brought to life, how important existing clients are, and how important it is to love on your existing clients. And so guard strategies really are all about not taking an existing client for granted. You may have a very large market share or be the law firm, to a particular client and have all of their legal spend. The question though, is what are you doing to protect that? How are you re originating that work? How are you investing in protecting that client relationship and looking for new innovation, new value, and new ways to really build loyalty, so that there’s inoculation against competition? Because I can say that when clients shift law firms, it’s not usually only because they’re unhappy about the legal service, or they’re unhappy about the rates, a lot of times they leave, or they look to get new counsel, because they’re being ignored, or taken for granted. So G three is about getting, it’s about growing, and it’s about guarding. And when we can look at the revenue strategies that go with those three things. I think there’s real power and lifting many people to contribute positively affect revenue that would come from any one of his three G’s.  Excellent. We’ve had a great conversation today on mental health and well-being in the egal industry. So thank you to Deb Knupp from GrowthPlay for joining us today.

OUTRO  36:32

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. If you’re interested in publishing and advertising with us, visit www dot NAT law review.com. We’ll be back soon with our next episode.

For more Legal Reach Podcasts, please see here.

Study Demonstrates Earlier Physician Retirement Overall and Increased Pay Equity Concerns for Female Doctors During the Pandemic

This month, Doximity issued its Fifth Annual 2021 Physician Compensation Report. With the continued strain of the pandemic spanning 2021, the self-reported physician data reflected widespread burnout and early retirement, especially by female physicians. With respect to physician compensation, Doximity findings demonstrated:

  • While average doctor pay increased 3.8 percent between 2020 and 2021, there was a decline of real income compared to 2020 given the CPI 6.2% rate of inflation in 2021.
  • The top five metro areas with the highest physician pay were Charlotte, NC; St. Louis, MO; Buffalo, NY; Jacksonville, Florida; and, Orlando, Florida.
  • The top five metro areas with the lowest physician pay were Baltimore, MD; Providence, RI; San Antonio, TX; Washington, D.C.; and Boston, MA.
  • A widening gender pay gap of 28.2% this year, with female physicians making $122,000 less than male physicians in 2021.
  • Based on 2014-2019 data, Doximity estimates that over the course of a career, female physicians will earn over $2 million less than male physicians.

Specialties with the largest pay equity gaps between men and women are oral & maxillofacial surgery; allergy and immunology; ENT; pediatric nephrology; and thoracic surgery. Significantly, there is no one medical specialty where women earned the same or more than men in 2021. All specialties had a pay gap over 10%, except Pediatric Rheumatology (which had a gap of 7.9%). To compound matters, a recent Jama Network Open research letter found that physician residents who were mothers – compared to physician residents who were fathers – were more likely to be responsible for childcare or schooling (24.6% v. .8%), household tasks (31.4% v. 7.2%), to work primarily from home (40.9% to 22%), and to reduce their work hours (19.4% to 9.4%). The study reflected the significant concern that these “short-term adjustments can have serious long-term repercussions as they may lead to lower earnings and negatively impact advancement.”

Doximity’s research also revealed that due to the pandemic, over 1% of physicians retired before expected, which is feared to strain an already tight labor market. The report also highlighted studies suggesting about half of doctors are considering an employment change due to the “COVID-related overwork.” The overwork also had a disproportionate impact on women physicians, with 25% of them reporting they are “considering early retirement” due to increased work during the pandemic.

This research reflects the importance of a physician/employer in any setting reflecting on the impact of the pandemic on its healthcare team. Moreover, the research shows continued pay equity deficits between female and male physicians, which may be exacerbated by the pandemic. Internal reflection on current pay practices to identify the factors contributing to it are critical to maintain top talent, improve morale amidst very difficult times and avoid wage and hour litigation.

Article By Dorothy Parson McDermott of Jackson Lewis P.C.

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

Jackson Lewis P.C. © 2021

The Legal Challenges to the OSHA ETS and CMS Vaccine Mandate Move to the Supreme Court

On December 22, 2021, the Supreme Court of the United States issued orders granting review of legal challenges to the Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“OSHA ETS”) and the Centers for Medicare and Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (“CMS Vaccine Mandate”). In a rare move, the Supreme Court set an accelerated timeline for the cases, scheduling oral arguments in both cases on January 7, 2022.

Following a ruling out of the United States Court of Appeals for the Sixth Circuit on December 17, 2021, OSHA announced that it would not issue citations for non-compliance with any requirements of the OSHA ETS before January 10, 2022 and will not issue citations for noncompliance with testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the OSHA ETS. While it is unknown whether the Supreme Court will be able to issue a ruling by OSHA’s January 10, 2022 compliance date, the Supreme Court’s expedited schedule seems to indicate that it is attempting to give employers some finality concerning their obligations under the federal mandates.

Article By Lilian Doan Davis of Polsinelli PC

For more COVID-19 legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California

Supreme Court to Consider Whether the FAA Mandates Arbitration of PAGA Actions

On Dec. 15, 2021, the United States Supreme Court granted certiorari in Viking River Cruises, Inc. v. Moriana, and likely will decide by summer 2022 whether the Federal Arbitration Act (FAA) preempts California public policy and requires enforcement of arbitration agreements that purport to waive an employee’s ability to pursue representative actions under the California Private Attorneys General Act (PAGA). Employers have been waiting for the Supreme Court to take up this issue and are watching the case with interest.

Currently, per the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, arbitration agreements that waive an employee’s right to pursue PAGA representative actions are considered void and unenforceable. In Iskanian, the California Supreme Court held the FAA does not preempt California state law prohibiting prospective PAGA waivers because PAGA actions are between the employer and the state, not the employee. Thus, the state of California is the real party in interest, not the employee bringing suit, and although the employee may have executed a binding arbitration agreement, the state of California did not. Thus, arbitration agreements that purport to waive the right, expressly or otherwise, to bring a PAGA representative action are not enforceable.

In Viking River, the employee filed a PAGA representative action seeking civil penalties for various alleged violations of the California Labor Code, despite signing an arbitration agreement with her employer agreeing to resolve all future employment-related disputes with the employer via individual arbitration. Relying on the agreement, the employer moved to compel the action to arbitration. The trial court denied the motion, and the Court of Appeal affirmed the denial citing California state law as articulated in Iskanian. The California Supreme Court subsequently denied the employer’s petition for review.

Viking River then petitioned the U.S. Supreme Court for certiorari, relying on the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion and Epic Systems Corp. v. Lewis. These decisions held that courts may not disregard bilateral arbitration agreements or reshape traditional individualized arbitration by mandating class-wide arbitration procedures without all parties’ consent. Viking River argued the Supreme Court needed to review the case to reaffirm the FAA and national policy in favor of arbitration. Viking River further argued review was necessary to ensure that Concepcion and Epic promote bilateral arbitration, rather than simply result in “representational litigation” under PAGA by those who agreed to arbitrate individually. In granting review, the Supreme Court will decide “[w]hether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”

This will be a closely watched decision for both sides of the bar and will likely have a groundbreaking effect on California employment litigation. Should the Supreme Court decide in Viking River’s favor, PAGA-only actions, which have become the preference of California plaintiffs’ attorneys in the face of arbitration agreements containing class action waiver provisions, will largely become a thing of the past for those employers who mandate individual arbitration for employees. Although it is by no means certain how the Supreme Court will decide this issue, employers should certainly be ready to revisit any arbitration agreements with California employees and consider what if any changes the ultimate ruling may warrant.

Article By Ashley M. Farrell Pickett and Radha D.S. Kulkarni of Greenberg Traurig, LLP

For more litigation legal news, click here to visit the National Law Review.
©2021 Greenberg Traurig, LLP. All rights reserved.

California Supreme Court Cases Employers Should Be Watching in 2022

The California Supreme Court has been busy in 2021 deciding cases that affect employers from how to pay meal and rest period penalties to when the statute of limitations for a failure to promote runs.

While the state’s high court answered some big questions in this last year, they still have several cases pertaining to employment law awaiting their attention.

Here are the cases employers should be watching in the new year and why.

People ex rel. Garcia-Brower v. Kolla’s Inc.

In this case, a complainant filed a timely retaliation complaint with the Division of Labor Standards Enforcement (“DLSE”) claiming immediate termination after complaining about non-payment of wages. Her complaint did not allege any disclosure to a governmental agency, but the retaliatory act of termination upon her direct complaint to her employer. The DLSE undertook an investigation and determined that respondents had violated several Labor Code sections, notably 1102.5 (“Section 1102.5”), California’s whistleblower statute. The DLSE notified the parties involved of its determination on December 22, 2015. Respondents were ordered to do several things, including paying the complainant lost wages and civil penalties of $20,000 each for violations of sections 1102.5 and 98.6. Respondents never complied.

On October 17, 2017, the Labor Commissioner filed an enforcement action against Respondents under the authority of section 98.7, subdivision (c)(1)5, alleging violations of these statutory provisions. Eventually, through a lack of response by the employer-defendant, the Labor Commissioner sought to take a default judgment.

The trial court, however, determined that the Labor Commissioner had not stated a claim under section 1102.5, because the complainant had not approached a governmental agency until after her termination. The trial court found that retaliation under the statute required the complainant to have been terminated as a result of disclosure to a governmental agency, which was not alleged. The trial court also found insufficient evidence for the claimant’s unpaid wages, and that the penalties under Section 98.6 were not appropriate.

The Court of Appeal disagreed with the trial court’s reasoning, but nevertheless affirmed the denial of Section 1102.5 claim as it found the after-termination complaint to be defective. It also reversed as to the penalties awarded under Section 98.6 and remanded that portion of the judgment.

The question before the California Supreme Court is limited to whether Labor Code section 1102.5, subdivision (b), which protects an employee from retaliation for disclosing unlawful activity, applies when the information is already known to that person or agency.

Why Employers Should Watch This Case

Depending on the direction the California Supreme Court takes, its holding will affect the burden on employers defending against whistleblower claims – especially those arising out of allegations that an employee told an employer or agency information that the employer or agency was already aware of.

Grande v. Eisenhower Medical Center

FlexCare, LLC (“FlexCare”), a temporary staffing agency, assigned Plaintiff to work as a nurse at Eisenhower Medical Center (“Eisenhower”). Plaintiff alleged that during her employment at Eisenhower, FlexCare and Eisenhower failed to ensure she received the required meal and rest periods, wages for certain periods she worked, and overtime wages. She then filed a class-action lawsuit on behalf of FlexCare employees assigned to hospitals throughout California. Plaintiff’s claims were based solely on her work on assignment to Eisenhower. FlexCare settled with the class and plaintiff executed a release of claims. The trial court entered a judgment incorporating the settlement agreement.

A year later, Plaintiff brought a second class action suit against Eisenhower, who had not been named in the previous lawsuit, alleging the same labor law violations. FlexCare intervened in the action asserting Plaintiff could not bring the separate lawsuit against Eisenhower because she had settled her claims in the prior class action.

The trial court held a limited trial on the issue of the propriety of the lawsuit and ruled that Eisenhower was not a released party under the settlement agreement. Accordingly, Eisenhower could not avail itself of the doctrine of res judicata because the hospital was neither a party to the prior litigation nor in privity with FlexCare. The Court of Appeals agreed with the trial court.

Why Employers Should Watch This Case

This case could affect staffing agency employers who may want to utilize broad releases if their “clients” are not also named to avoid duplicative litigation – for which they may have to pay twice – through indemnity clauses.

Lawson v. PPG Architectural Finishes, Inc.

This case will explore whether the evidentiary standard set forth in Labor Code section 1102.6 (“Section 1102.6”) replaces the McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought under section 1102.5.

In this case, Defendant was a manufacturer of paint, stains, caulks, and other products. Plaintiff Lawson (“Lawson”) was a territory manager whose duties included merchandising and claims that he was directed by his supervisor to handle a product in a way that fraudulently removed a slow-selling product from its inventory. Lawson told his supervisor he would not do this, then reported the directive to the company’s ethics hotline on two separate occasions. The second report to the ethics hotline resulted in an investigation. During this time, Lawson received poor ratings for his work, was placed on a performance improvement plan, and eventually, Defendant terminated his employment.

Lawson then filed a complaint against the company in the United States District Court, alleging that he was retaliated against as a whistleblower.

The trial court applied the McDonnell Douglas test, which employs burden-shifting between the plaintiff and the employer. This test originated in the context of Title VII, the federal statute governing workplace discrimination, harassment, and retaliation. The trial court concluded that Lawson failed to carry his burden to raise triable issues of fact regarding pretext and granted Defendant’s motion for summary judgment.

On appeal, Lawson argued to the 9th Circuit that the trial court should have applied the evidentiary standard outlined in Section 1102.6. Section 1102.6 states that once it has been demonstrated by a preponderance of the evidence that the whistleblower activity was a contributing factor in the retaliation against the employee, the employer’s burden of proof is to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons.

In its question to the California Supreme Court, the 9th Circuit noted that application of the McDonnell Douglas test to whistleblower claims under Labor Code section 1102.5 “seems to ignore [a] critical intervening statutory amendment” by which the California legislature established the evidentiary burdens of the parties participating in a civil action or administrative hearing involving a violation of the statute. Though this statement by the Circuit seems like a decision, the 9th Circuit pointed out three published California appellate court decisions that expressly applied McDonnell Douglas after the amendment.

This contradiction between California’s statute and the court rulings is the root of the 9th Circuit’s question.

Why Employers Should Watch This Case

If the California Supreme Court rules that the evidentiary requirement under Section 1102.6 applies, disposing of whistleblower retaliation claims prior to trial will become extremely difficult due to the high clear and convincing evidentiary standard imposed on the employer.

Naranjo v. Spectrum Security Services, Inc.

This case involves a class of security guards who alleged meal break violations and sought premium wages, waiting time penalties, inaccurate pay stub penalties, and attorney’s fees.

The Court of Appeal held that unpaid premium wages for meal period violations did not entitle employees to pay stub penalties or waiting time penalties.

Why Employers Should Watch This Case

This case will resolve a long-standing debate on whether waiting time penalties are recoverable for meal and rest period violations. If the California Supreme Court disagrees with the lower courts, it will increase potential penalties for California meal and rest period violations, as violations could be compounded by alleged pay stub penalties and waiting time penalties.

Article By Leonora M. Schloss and Karen Luh of Jackson Lewis P.C.

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

Jackson Lewis P.C. © 2021

BREAKING: Seventh Circuit Certifies BIPA Accrual Question to Illinois Supreme Court in White Castle

Yesterday the Seventh Circuit issued a much awaited ruling in the Cothron v. White Castle litigation, punting to the Illinois Supreme Court on the pivotal question of when a claim under the Illinois Biometric Privacy Act (“BIPA”) accrues.  No. 20-3202 (7th Cir.).  Read on to learn more and what it may mean for other biometric and data privacy litigations.

First, a brief recap of the facts of the dispute.  After Plaintiff started working at a White Castle in Illinois in 2004, White Castle began using an optional, consent-based finger-scan system for employees to sign documents and access their paystubs and computers.  Plaintiff consented in 2007 to the collection of her biometric data and then 11 years later—in 2018—filed suit against White Castle for purported violation of BIPA.

Plaintiff alleged that White Castle did not obtain consent to collect or disclose her fingerprints at the first instance the collection occurred under BIPA because BIPA did not exist in 2007.  Plaintiff asserted that she was “required” to scan her finger each time she accessed her work computer and weekly paystubs with White Castle and that her prior consent to the collection of biometric data did not satisfy BIPA’s requirements.  According to Plaintiff, White Castle violated BIPA Sections 15(b) and 15(d) by collecting, then “systematically and automatically” disclosing her biometric information without adhering to BIPA’s requirements (she claimed she did not consent under BIPA to the collection of her information until 2018). She sought statutory damages for “each” violation on behalf of herself and a putative class.

White Castle before the district court had moved to dismiss the Complaint and for judgment on the pleadings—both of which motions were denied.  The district court sided with Plaintiff, holding that “[o]n the facts set forth in the pleadings, White Castle violated Section 15(b) when it first scanned [Plaintiff’s] fingerprint and violated Section 15(d) when it first disclosed her biometric information to a third party.”  The district court also held that under Section 20 of BIPA, Plaintiff could recover for “each violation.”  The court rejected White Castle’s argument that this was an absurd interpretation of the statute not in keeping with legislative intent, commenting that “[i]f the Illinois legislature agrees that this reading of BIPA is absurd, it is of course free to modify the statue” but “it is not the role of a court—particularly a federal court—to rewrite a state statute to avoid a construction that may penalize violations severely.”

White Castle filed an appeal of the district court’s ruling with the Seventh Circuit.  As presented by White Castle, the issue before the Seventh Circuit was “[w]hether, when conduct that allegedly violates BIPA is repeated, that conduct gives rise to a single claim under Sections 15(b) and 15(d) of BIPA, or multiple claims.”

In ruling yesterday this issue was appropriate for the Illinois Supreme Court, the Seventh Circuit held that “[w]hether a claim accrues only once or repeatedly is an important and recurring question of Illinois law implicating state accrual principles as applied to this novel state statute.  It requires authoritative guidance that only the state’s highest court can provide.”  Here, the accrual issue is dispositive for purposes of Plaintiffs’ BIPA claim.  As the Seventh Circuit recognized, “[t]he timeliness of the suit depends on whether a claim under the Act accrued each time [Plaintiff] scanned her fingerprint to access a work computer or just the first time.”

Interestingly, the Seventh Circuit drew a comparison to data privacy litigations outside the context of BIPA, stating that the parties’ “disagreement, framed differently, is whether the Act should be treated like a junk-fax statute for which a claim accrues for each unsolicited fax, [], or instead like certain privacy and reputational torts that accrue only at the initial publication of defamatory material.”

Several BIPA litigations have been stayed pending a ruling from the Seventh Circuit in White Castle and these cases will remain on pause going into 2022 pending a ruling from the Illinois Supreme Court.  While some had hoped for clarity on this area of BIPA jurisprudence by the end of the year, the Seventh Circuit’s ruling means that this litigation will remain a must-watch privacy case going forward.

Article By Kristin L. Bryan of Squire Patton Boggs (US) LLP

For more data privacy and cybersecurity legal news, click here to visit the National Law Review.

© Copyright 2021 Squire Patton Boggs (US) LLP

Court Rejects Netflix’s Challenge to Poaching Injunction

In the latest blow against Netflix’s aggressive recruiting practices, a California appellate court has affirmed a trial court’s injunction against Netflix and in favor of Twentieth Century Fox Film Corporation (“Fox”), thus permanently barring the streaming giant from poaching Fox executives by inducing them to breach their fixed-term employment contracts.

Netflix challenged the injunction, which was issued two years ago under California’s Unfair Competition Law (“UCL”), on two grounds. Netflix argued that there are triable issues of fact as to whether: (1) Fox had suffered damages; and (2) Fox’s employment contracts were void as against public policy. The Court of Appeal rejected both arguments, finding that the extent of damages to Fox was not relevant to its UCL claim. The Court also rejected Netflix’s public policy arguments, noting that there is well-settled law that fixed-term contracts are beneficial to both employers and employees and that, in any event, the challenged contractual provisions can be severed, even if they are in any sense unenforceable or unlawful.

The Court of Appeal also rejected Netflix’s challenges to the trial court’s permanent injunction, which barred Netflix from soliciting employees who are subject to fixed-term employment contracts with Fox or inducing such employees to breach their fixed-term employment contracts. Specifically, the Court rejected the argument that the injunction was vague or overbroad because Netflix had failed to explain the basis for the objection at the summary judgment hearing, despite having been given ample opportunity to do so. The Court also rejected Netflix’s argument that the injunction resulted in specific performance of personal services contracts, pointing out that the injunction only applied to Netflix’s tortious conduct—and did not bind any current or former Fox executives.

This decision follows a similar ruling late last year, when a trial court ruled in favor of our client Viacom in its anti-poaching lawsuit against Netflix.

A holding the other way for Netflix could have upended the way California employers solicit and retain employees, especially in the entertainment industry, where fixed-term employment agreements are relatively commonplace. Although the recent Court of Appeal decision is unpublished, it presumably sends a strong message to those who would poach the employees of a competitor who are subject to fixed-term employment agreements.

Article By Anthony J Oncidi, Philippe A. Lebel, and Dixie M. Morrison of Proskauer Rose LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2021 Proskauer Rose LLP.

SCOTUS Shelves Request to Review 11th Circuit Dark Tower Decision, Ending Copyright Saga

The Supreme Court’s refusal to review the Eleventh Circuit’s decision in DuBay v. King marks an end to a 4-year copyright battle concerning the lead character of Stephen King’s acclaimed series, The Dark Tower.  The Eleventh Circuit’s decision affirmed that the King’s anti-hero, Roland Deschain, is not substantially similar to William DuBay’s The Rook comic book character, Restin Dane. The decision illustrates the complexity of literary copyright infringement disputes, where a claim is brought based on a mix of original and stock character elements.

In 2017 William DuBay’s heir, Benjamin DuBay, sued novelist Stephen King, Marvel Entertainment, Sony Entertainment, and others for various counts of copyright infringement, alleging that King copied DuBay’s artistic expression based on purported similarity between lead characters of The Rook (Restin Dane) and The Dark Tower (Roland Deschain). The district court granted summary judgment to King, determining (1) that any similarities between the characters comprise unprotectable general ideas and scènes à faire elements; and (2) that the protectable original character elements in dispute are different, such that “no reasonable jury…could find the works substantially similar.” DuBay appealed.

The principal issue on appeal was whether the district court erred in assessing substantial similarity.  DuBay argued that the characters were substantially similar based on several shared characteristics, including: (1) similar names; (2) interaction with time-travel related towers; (3) having a bird as a companion; (4) having knightly characteristics; (5) wearing Western-style clothing; (6) surviving a fictionalized interpretation of The Alamo; (7) the use of knives; and (8) traveling back in time to save a young boy who becomes a gunslinger. DuBay also argued that the unique combination of these elements made Dane a distinctive character, and that Deschain is a copy of DuBay’s artistic expression in that character.

The Eleventh Circuit addressed DuBay’s contentions in two parts.

First, the court assessed whether each of the claimed character elements merit copyright protection. The court affirmed the district court’s holding that “character names do not merit copyright protection,” since mere words and short phrases cannot be protected under copyright law.  The court reiterated that only original elements of a copyrighted work can be afforded protection, and that certain claimed elements (i.e., “knightly heritage,” time travel to “different times and parallel worlds,” “western attire,” “fictionalized Alamo histories,” and “knife wielding”) are merely general ideas or scènes à faire that are “too general to merit copyright protection.”  The court then reviewed the remaining elements to determine whether the shared characteristics rendered the characters substantially similar.  Although both characters may be broadly similar in having bird companions, a relationship to towers and tower imagery, and past time travel experiences involving the rescue of a young boy, the court found that the depiction of these elements was different in each work.  For example, whereas Dane lives in and travels via tower shaped structures shaped like the namesake chess piece, Deschain embarks on an endless mission to find an elusive Gothic tower that connects parallel worlds and time periods.  Because the portrayals of each original element are distinguishable, the court determined that no reasonable jury could have concluded that the works were similar.

Second, the court examined whether the characters are substantially similar based on each character’s combination of the claimed elements (or the “look and feel” of the characters).  The Court recognized of the potential dangers of comparing works based on individual similarities alone because an original combination of unoriginal elements can potentially sustain a claim of copyright infringement.  However, the court found that any similarities of combined elements were “superficial” at best, and that the “look and feel” analysis actually hurt, rather than helped, DuBay’s case by highlighting differences in expression of shared original character elements.

Takeaway:

The Supreme Court’s refusal to hear Dubay reinforces the basic tenet of copyright law that general ideas or scènes à faire cannot be protected by copyright.  It also reminds litigants that although a combination of original and non-original elements can be protected under copyright law, broad similarities are usually insufficient to sustain a copyright infringement claim.

The case is DuBay v. King, 844 Fed. Appx. 257 (11thCir. 2019), cert. denied, 142 S. Ct. 490 (2021).

Article By Spencer K. Beall and Margaret A. Esquenet of Finnegan

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

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

The Time Has Come for Trademark Modernization Act Regulations

On Dec. 18, 2021, regulations implementing the Trademark Modernization Act of 2020 (TMA) went into effect. Trademark owners and practitioners should be aware of the new procedures and ensure they are ready for the changes.

Trademark Modernization Act Regulations

Our posts “Three Things to Know About the Trademark Modernization Act of 2020” and “The Trademark Modernization Act of 2020: New Rules and Procedures” from March and May 2021, respectively, gave an overview of the changes that will be implemented with the act. Most notably, the TMA provides for new procedures to challenge trademark registrations based on nonuse – expungement, and reexamination. It is intended that the new ex parte expungement and reexamination proceedings will be faster and more efficient alternatives to cancellation procedures before the Trademark Trial and Appeal Board. You can read the final rule here.

Another significant change is the requirement for filers to verify their identity with the United States Patent and Trademark Office (“USPTO”). This is part of the USPTO’s efforts to protect the integrity of the register and combat fraudulent filings, which have been on the uptick. Beginning in early 2022, the following must verify their identity with the USPTO using one of the verification options that includes an electronic process by ID.me

Trademark owners and corporate officers not represented by an attorney, US-licensed attorneys (including in-house counsel), and Canadian attorneys or agents are required to verify their identity. Paralegals and other support staff working for an attorney must be sponsored by a verified attorney. Trademark owners who are represented by an attorney do not currently need to verify their identities to sign electronic forms sent by their attorney; however, if the representation by that attorney ends, the owners will need to submit to the verification process.

It is important that trademark holders and practitioners prepare for these new policies and procedures to ensure they can complete filings on a timely basis.

Article By Danielle M. DeFilippis of Norris McLaughlin P.A.

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

©2021 Norris McLaughlin P.A., All Rights Reserved

EPA’s Stormwater General Permit is Safe. Does it Matter?

A Colorado-based NGO has dropped its 9th Circuit lawsuit challenging EPA’s Multi-Sector General Permit for stormwater discharges associated with industrial facilities.

On one hand, this is a victory for EPA which apparently offered nothing to settle the case before the NGO threw up its hands.

On the other hand, the General Permit is only applicable in Massachusetts, New Hampshire and New Mexico, the three states that have not been delegated the authority to issue such a permit (as well as tribal lands and other lands not subject to state jurisdiction).

Why did the NGO bring this suit to begin with?  Did it hope that the Biden Administration EPA would, when push came to shove, do something dramatically different than the Trump Administration EPA?

Whatever the reason, the NGO has apparently concluded that the current law and permit give it plenty of grounds to bring suits over stormwater discharges in the 9th Circuit and elsewhere.  There are already several such imaginative suits pending on the west coast.

Are the regulators in Massachusetts less able to issue and enforce stormwater permits than than their colleagues in 47 other states?  The answer is of course not.  They are completely able and more able than most.  And they already have authority under state laws and regulations that are broader in their reach than the federal law.

But the Massachusetts legislature has stood in the way, apparently because it doesn’t want to bear the costs of regulating in this area borne by 47 other states.  Uncertainty and the threat, if not the actuality, of litigation has been the unfortunate result of this dereliction for the regulated community, including the municipalities in which we live.

We deserve better.

“The Center for Biological Diversity (CBD) is dropping its legal challenge to EPA’s industrial stormwater general permit that sought stricter regulation of plastics pollution after settlement discussions were unfruitful, according to an attorney familiar with the litigation.“

Article By Jeffrey R. Porter of Mintz

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

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.