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OSHA Issues New Illness and Injury Recordkeeping Rule That Casts Doubt upon Commonplace Employer Drug Testing and Safety Incentive Policies

osha-logoAnnouncing a series of requirements that will begin to take effect August 10, 2016, OSHA released, on May 11th, its final rule to “modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards.” Tellingly, OSHA acknowledges in its accompanying press release that the rule is intended to “nudge” employers to enhance methods to prevent workplace injuries and illnesses. Apparently, OSHA is proceeding under the assumption that all employers, regardless of past safety history, require an external push to enhance workplace safety efforts. Included within the rule are a number of alarming pronouncements—discussed more fully below—regarding routine employer safety practices such as drug testing and incentive policies that may necessitate changing long-established routines.

Overview of the New Injury and Illness Recording and Reporting Requirements

Signaling a stark departure from traditional injury recording and reporting practices whereby employers track and maintain such information internally, the new rule will require thousands of employers to electronically submit these records to OSHA each year. OSHA will then publish this data online in a format that anyone with access to the internet—including competitors, prospective employees, shareholders, union organizers and disgruntled former employees—can presumably search, filter and copy for their own use, including further public dissemination. The data submission obligations will be phased in over two years, as employers with 250 or more employees must submit the required 300A Annual Summary by July 1, 2017, and employers with 20 to 249 employees in “high-hazard” industries must submit their 2016 and 2017 300A Summaries by July 1, 2017 and 2018, respectively.

Employers operating in State Plan states are covered, too, as the OSHA-approved state programs must adopt “substantially identical” requirements within six months. Accordingly, employers in California, Connecticut, Indiana, Maryland, Michigan and Virginia—among others—should begin preparations to comply with the new rule.

Although a portion of the rule does not go into effect until next year, employers must comply beginning August 10, 2016 with requirements relating to employee involvement in employer recordkeeping systems and discrimination/retaliation prevention. Although much of the attention paid to the new rule has focused on the electronic submission requirements, OSHA’s commentary surrounding the discrimination prohibition suggests that this section may ultimately force employers to make changes to long-standing practices surrounding post-accident drug testing and safety incentive efforts.

The employee involvement portion of the rule, set forth at 29 C.F.R. § 1910.35, explicitly requires employers to “inform each employee how he or she is to report a work-related injury or illness” and “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure is not reasonable, according to the new rule, if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” Further, employers must inform employees that they have the right to report injuries and illnesses, in addition to advising them that their employer is “prohibited from discharging or in any manner discriminating against [them] for reporting work-related injuries or illnesses.”

OSHA Takes Aim at Post-Injury Drug Testing and Safety Incentive Policies

Taking a position in the final rule that is sure to alarm a wide range of employers, OSHA announced that “blanket post-injury drug testing policies deter proper reporting” of injuries. Although the rule does not make across-the-board drug testing a per se violation, OSHA instructs employers to utilize post-injury drug testing only where “there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” and only where “the drug test can accurately identify impairment caused by drug use.” OSHA suggests that employees who report bee stings, repetitive strain injuries or other injuries where drug use could not reasonably have contributed to the occurrence, should not be tested. Creating greater uncertainty, OSHA warns employers that even when the decision to conduct a post-injury drug test is reasonable, the agency may nevertheless conclude that the testing unlawfully deterred injury reporting and constituted retaliation if the drug testing procedure itself is punitive or embarrassing to the employee, whatever that means.

OSHA recognizes, however, that employers that conduct post-accident testing mandated by federal regulations (e.g., interstate transportation) or pursuant to state workers’ compensation laws, many of which include “drug-free workplace” incentive programs, are not affected by the new rule. As such, an employer’s efforts to comply with applicable federal regulations or state laws will not be viewed as retaliatory.

The new rule similarly takes aim at another behavior the agency has long sought to discourage—employer safety incentive and disincentive policies and practices. While this will not come as a surprise to most employers (particularly those who recall the “Fairfax Memo” issued in March, 2012, see https://www.osha.gov/as/opa/whistleblowermemo.html), the language found in the rule will likely force many employers back to the drawing board in an effort to develop new policies intended to enhance workplace safety without incurring the wrath of OSHA. In the meantime, employers would be well advised to avoid using an incentive program to “take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work related injury or illness.” One would assume that this could encompass the month-end pizza party promised to employees if there are no recordable injuries and then abruptly canceled because an employee reports an injury.

In contrast, OSHA instructs that if “an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate this provision.” The rule thus favors positive reinforcement, such as paying a bonus for serving on a safety committee or submitting a safety suggestion adopted by the company, at the same time that it prohibits the imposition of consequences for engaging in protected activities such as reporting an illness or injury.

What Should You Do Now?

  • Consider modifying your drug and alcohol testing policies to allow for discretion on obvious cases in which drug use or testing are clearly unrelated to an employee’s injuries and revisit the reasonableness of your drug testing procedures with your employment attorney. Be mindful, however, that with discretion comes the potential for inconsistent application of the policies and follow-on disparate treatment claims.

  • Examine your safety incentive and disincentive policies and practices with a critical eye, asking whether the policies and/or practices could be perceived as deterring or discouraging employees from reporting an injury or illness. Certain management bonus plans may similarly be viewed as incentivizing managers to discriminate against employees who report illnesses and injuries if the effect of doing so negatively impacts the manager’s bonus eligibility (i.e., where the bonus is tied to the OSHA recordable rates). If the potential for either conclusion exists, consider discontinuing or revising those policies and/or practices.

  • Begin preparations to switch from paper-based recordkeeping methods to an electronic system compatible with OSHA’s data submission portal.

  • Train the individuals responsible for injury and illness recordkeeping and reporting so they fully understand the new rule.

Article By Aaron R. GelbJ. Kevin HennessyCaralyn M. Olie & Thomas H. Petrides of Vedder Price

© 2016 Vedder Price

Google Tries “Pretty Woman” Tactic in Oracle Copyright Suit

I’m not sure Julia Roberts’ use of that blonde wig and eighties cut-out dress when she Google versus Oracleleaned against Richard Gere’s car in Pretty Woman should be considered “fair use,” but perhaps a court might say otherwise. How does Julia’s transformation from wayward to womanly in that iconic 1990 film come into play in a fight between tech giants Google and Oracle over the use of copyrighted java? Because they both hinge on “transformative use.”

Google’s going to trial again? Say it isn’t so. I have to wonder how many lawyers Google, alone, employs. But, if you’re going to stand as one of the front-runners in today’s fast-paced, internet-driven services market, you have to be prepared for lawsuits. Google has been fending off some serious claims by Oracle in a copyright suit filed in San Francisco since 2010, but when the focus of the debate turned to expert witness testimony, we wanted to highlight the matter for discussion and debate. Oracle initially sued Google claiming improper use of copyrighted Java, particularly Google’s use of its application programming interfaces (“APIs”) on its Android platform, to allow developers who are familiar with Java to quickly convert their web apps to Android.  Oracle is now reportedly seeking royalty damages in excess of $8 billion.

Initially Google argued, and the trial court agreed, that APIs were not subject to copyright. That ruling, however, was overturned by the Federal Circuit on appeal, which means Google’s remaining defense is whether its use of the APIs was “transformative,” which would make it acceptable under the Fair Use Doctrine. What standard of “transformative use” are the parties looking to?  2 Live Crew and their ripping parody of “Pretty Woman” in their 1989 album, “As Clean As They Wanna Be.” Please tell me you’re envisioning that iconic cover right now. Apparently the Supreme Court in a 1994 ruling, Campbell v. Acuff-Rose Music, Inc., found 2 Live Crew’s version of “Pretty Woman” so creative and original that it qualified as “fair use,” not copyright infringement. Oracle is arguing the opposite by claiming Google’s use of the Java APIs did nothing to transform the code. Google simply plugged it into to a larger body of work, but in no way altered it, which does not qualify, according to Oracle, as transformative.

Oracle has sought to exclude the testimony of Google’s computer science expert from opining that Google’s use of the Java code altered it sufficiently to qualify as a transformative use, claiming his opinion “flies in the face” of the Federal Circuit’s finding that Google was wrong in claiming its use was transformative simply because it incorporated other elements in the Android system. Google has fought back, stating the Federal Circuit never decided whether the work was transformative and specifically remanded the case so that issue could be decided by a jury. Are you finding both of those arguments a bit rambling and repetitive? Apparently so did the trial court judge when he lamented his role as the gatekeeper who has to “excise every detail of expert testimony on a granular level.” With reams of lawyers on either side fighting over every detail and every dollar, however, that is probably precisely what he will have to do.

If you feel it may be hard, not being a computer science guru, to make a determination as to whether Google’s use of the Java at issue was “transformative,” imagine how the jury is going to feel. In May, 2012, a jury found Google had infringed Oracle’s copyrights but they could not decide whether use of the code in question was “fair.” This will be the second trial and second jury that attempts to answer this question. It will require an expert with exceptional communication skills, who is as persuasive as Julia, to effectively break this Java jumble down and win over the potentially tech-savvy, but stubborn “Richards” in the jury box. That’s the expert we would find for them, anyway, if Google gave us a call.

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

DOL Announces Final Rule on Salary Threshold for Exempt White-Collar Employees

Today, the U.S. Department of Labor (DOL) announced its final rule on the minimum salary that white-collar employees must be paid to qualify as exempt from the overtime requirements under the Fair Labor Standards Act (FLSA). The new rule raises the current salary level that such employees must receive in order to qualify as “exempt” from $23,660 annually, to $47,476 annually. The new rule takes effect December 1, 2016.

Under current DOL regulations, most white collar employees – executives (supervisors), administrative employees, and professionals – are exempt from the FLSA overtime rules and need not be paid overtime for hours worked over 40 in a workweek if they satisfy two conditions. First, they must perform “exempt” duties as defined by the DOL regulations. Second, they must be paid a guaranteed salary of at least $455 per week, or about $23,660 annually.

The new rule, first proposed in a slightly different form back in 2015, raises the salary level significantly to $913 per week, or about $47,476 annually. This new salary level is set at the 40th percentile of weekly earnings for full-time salaried workers in the lowest income Census region (currently the South). This number is less than the $970 per week, or about $50,440 annually, that the DOL had originally proposed. In addition, the DOL will now permit up to 10 percent of the salary level to come from non-discretionary bonuses and incentive payments (including commissions).

This new threshold of $913 per week/$47,476 annually will be tied to the 40th percentile for full-time salaried workers in the lowest income Census region going forward, and will be updated every three years. It is currently expected to rise to more than $51,000 annually when the first update takes effect on January 1, 2020.

In addition, under the new rule the salary level for employees who qualify for the “highly compensated employee” exemption will rise from $100,000 per year to $134,004 per year. This level is the annual equivalent of the 90th percentile of full-time salaried workers nationally.

One change contemplated by the DOL when the agency first proposed this new rule back in 2015 will not take effect: changes to the “duties” test. The DOL has announced that the final rule will leave the existing duties tests for the executive, administrative, and professional exemptions in place.

The DOL estimates that 4.2 million additional workers will become eligible for overtime as a result of this rule change, including approximately 101,000 workers in the State of Michigan. This is estimated to raise total wages for American workers by approximately $12 billion over the next 10 years.

Many employers will be impacted by this new rule, as many employers have at least one “exempt” employee who is paid less than $47,476 annually. Thus, employers should scrutinize their workforces carefully to determine if changes in exempt status are necessary. Options include:

  • increase the salary of an employee who meets the duties test to at least $47,476 annually to retain his or her exempt status;

  • convert the employee to non-exempt status and pay an overtime premium of one-and-one-half times the employee’s regular rate of pay for any overtime hours worked;

  • convert the employee to non-exempt status and reduce or eliminate overtime hours;

  • convert the employee to non-exempt status and reduce the amount of pay allocated to base salary (provided that the employee still earns at least the applicable hourly minimum wage) and add pay to account for overtime for hours worked over 40 in the workweek, to hold total weekly pay constant; or

  • use some combination of these responses.

Given the significance of these changes, and the expected impact on the American workforce, employers are encouraged to consult with legal counsel to discuss their options and strategies for implementing changes, if necessary.

Religious Freedom Regarding ACA Contraceptive Mandate Still In Limbo

On May 16, 2016, the U.S. Supreme Court offered only limited guidance on the challenges to the religious “accommodation” procedure under the Affordable Care Act’s (ACA’s) contraceptive mandate. Numerous faith-based institutions had challenged the mandate and the procedural requirements for seeking an exemption on religious grounds as violations of the Religious Freedom Restoration Act (RFRA) and the First Amendment of the federal Constitution. In an unusual (but not unprecedented) move, the Court relied on confirmations from both sides that an alternative solution may resolve this dispute, and remanded the cases back to the Third, Fifth, Tenth, and D.C. Circuits to allow the parties to work it out. Zubik v. Burwell578 U.S. ___ (2016).

Religious Objection Form At Issue

Under the ACA, organizations providing health insurance to their employees must cover certain FDA-approved contraceptives as part of their health plans. Federal regulations, however, permit organizations to object to providing contraceptives on religious grounds. To avoid recourse for failing to provide mandated contraceptive coverage, such organizations must provide a form, either to their insurer or to the federal government, stating their religious objection.

Numerous faith-based nonprofit organizations, including the Little Sisters of the Poor Home For the Aged in Denver, argue that the ACA’s procedures require them to be complicit in providing services that violate their sincerely held religious beliefs. In various federal courts throughout the country, these religious institutions filed lawsuits challenging the legality of having to submit the religious objection form. After various appellate courts weighed in, the cases were consolidated for the Supreme Court to decide.

Court Sought Alternate Solutions

In late March, the Court asked both sides to come up with new proposals on how the female employees of these nonprofit organizations could receive cost-free contraceptive coverage without burdening the organizations’ religious  freedoms. After reviewing the parties’ submissions, the Court concluded that both sides confirmed there was a feasible option to provide contraceptive coverage through the organizations’ insurance companies without any objection notice from the religious parties.

In its per curiam opinion, the Court vacated the judgments and remanded the cases back to the respective appellate courts to allow the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” The Court stated that the parties should be given “sufficient time to resolve any outstanding issues between them.”

The Court, including the concurrence by Justice Sotomayor joined by Justice Ginsburg, emphasized that it was not ruling on the merits of the case and that the lower courts should not read anything into the Court’s opinion as leaning one way or the other. As it relates to the nonprofits in this case, the Court stated that the government has notice that they object on religious grounds so no further notice is required going forward. It also emphasized that the government should not fine or penalize the nonprofits.

What It Means

The Supreme Court’s failure to decide the legal issues surrounding the ACA’s contraceptive mandate and the religious “accommodation” means that numerous federal appeals courts will individually address whether the parties can come up with a mutually satisfactory resolution of the cases. It is unclear whether any of the courts will have to decide the legal issues (again). In any event, the very real possibility is that one or more cases could end up before the Supreme Court in a later session.

Copyright Holland & Hart LLP 1995-2016.

The Latest in the NLRB Handbook Saga? Another Unlawful Recording Policy Fails to Pass Muster

Whole-Foods-Market.jpgLast month, the National Labor Relations Board (NLRB) yet again shed further light on its analysis – and increased scrutiny – of employers’ handbook policies.  The NLRB’s decision in T-Mobile USA, Inc., 363 NLRB No. 171 (Apr. 29, 2016), serves as a follow-up to an earlier decision with respect to rules restricting employees’ use of recording devices.  We talked about the T-Mobile decision in our post last week and thought we would continue the discussion by elaborating on another of the board’s decisions on recording rules.

In one of many recent decisions scrutinizing employer handbook policies, the board in Whole Foods evaluated an employer rule prohibiting the use of recording devices on company premises.  Whole Foods, 363 NLRB No. 87 (Dec 24, 2015).  The NLRB specifically explained that it was not holding that all rules regulating recordings are invalid.  Rather, the board found “only that recording may, under certain circumstances, constitute protected concerted activity under Sec. 7 and that rules that would reasonably be read by employees to prohibit protected concerted recording violate the Act.”  Id. at *3, n.9.  The NLRB further explained that employers are not prohibited from maintaining rules restricting or prohibiting employee use of recording devices, but they must be narrowly drawn so that employees understand that Sec. 7 activity is not restricted.  This was the board’s issue with respect to the Whole Foods policy, as it found the rules to be overly broad.  The board relied on the fact that the rules applied regardless of the type of activity engaged in and that it covered all recordings.

The T-Mobile decision, which we wrote about last week, provides additional insight on how to interpret Whole Foods.  In T-Mobile USA, Inc., 363 NLRB No. 171 (Apr. 29, 2016), the board found the following policy to be unlawful:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information, employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [] activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Id. at *4.  The administrative law judge found that T-Mobile had set forth valid, nondiscriminatory rationales for the rule, including maintaining a harassment-free work environment and protecting trade secrets, and that the rule was narrowly tailored to these interests.  However, the NLRB reversed, noting that “[t]he rule does not differentiate between recordings that are protected by Section 7 and those that are not, and includes in its prohibition recordings made during nonwork time and in nonwork areas.”  Id. at *5.  Notably, though, the policy did state that the restriction is limited to recordings “in the workplace.”

With respect to the policy justifications alleged, the board conducted the following analysis:

  1. Harassment: T-Mobile asserted that its recording prohibition was in place to prevent harassment and noted that, under federal and state laws, employers have an affirmative obligation to prevent harassing conduct. However, the NLRB found that the recording prohibition was not narrowly tailored to this interest.  The board noted that it neither cited laws regarding workplace harassment nor specified that the restriction is limited to recordings that could constitute unlawful harassment.

  1. Confidential information: T-Mobile asserted as an additional justification its interest in protected confidential information in the workplace. The NLRB noted that the employer’s other policies defined “confidential information” as inclusive of employee information such as employee contact information and wage and salary information.  The board also cited Whole Foods and said that the employer’s interest in protecting confidential information was too insufficient to justify the broad prohibition on recording.

While Whole Foods indicated that such policies are not per se unlawful, the T-Mobile decision makes clear that simply inserting business justifications into the policy will not distinguish the lawful from the unlawful.  The board seems to be closely scrutinizing the justifications and requiring detailed explanations thereof.  The decisions in T-Mobile and Whole Foods indicate that the NLRB will also require that a rule carve out recordings that would be considered protected activity under the Act, and it appears – at least for now – that rules which fail to do so will be struck down.  T-Mobile teaches us that, while recording rules are still lawful in some circumstances, the rules must be especially specific with regard to their application and justifications.  Employers should continue to closely monitor NLRB decisions to stay up-to-date on all decisions analyzing employer handbook policies.

© 2016 BARNES & THORNBURG LLP

European Commission Gives Portugal Two Months To Address Issues With Biofuel Law Compliance

On April 28, 2016, the European Commission (EC) encouraged Portugal to become fully compliant with the Renewable Energy Directive (Directive) through the release of an April infringements fact sheet. The Directive has set the goal of 20 percent of the European Union’s (EU) 2020 energy consumption coming from renewable energy, with each Member State consuming at least ten percent renewable energy. Biofuels used in reaching this goal must meet a set of harmonized sustainability requirements, and must be treated equally by Member States regardless of the country of origin. Portugal has been sent a reasoned opinion urging it to stop favoring biofuels produced in Portugal over those produced in other countries, and to reduce sustainability requirements that are not warranted by the Directive. Portugal has two months to address these concerns, or else it could be sent to the Court of Justice of the EU.

©2016 Bergeson & Campbell, P.C.

Whistleblower Wins Big in Case that Tests Limits of Confidentiality Agreements

Intimidation Of Whistleblower

Confidentiality agreements are common in corporate America. Many companies require new employees to sign them as part of the hiring process. In some industries like healthcare, privacy policies are elevated to a legal requirement. Can these agreements be used to stop an employee from reporting his or her employer for fraud or turning documents over to an attorney? The answer is “no” but there are some limits on what an employee can take and do with the information. The most recent case to examine the issue comes from the Northern District of Illinois.

On May 9th, U.S. Magistrate Judge Sidney Schenkier dismissed a counterclaim brought by LifeWatch Services against a whistleblower in a federal False Claims Act case.

Matthew Cieszynski was a certified technician working for LifeWatch. His job was to conduct heart monitoring tests. LifeWatch conducts remote heart monitoring testing throughout the United States. Patients can wear heart monitor devices anywhere in the world and have those devices monitored through telemetry. Cieszynski’s job was to look for unusual or dangerous heart arrhythmias. The testing results would be passed to the patients’ cardiologists who use the data to diagnose and treat various heart ailments.

When first hired by the company in 2003, Cieszynski signed a confidentiality agreement that said in part, “you agree that both during your employment and thereafter you will not use for yourself or disclose to any person not employed by [LifeWatch] any Confidential Information of the company…” The agreement also restricted Cieszynski’s ability to access computer systems and records or remove information from the company’s premises.

In 2006, Cieszynski signed a HIPAA confidentiality statement.

Years later, Cieszynski became concerned that LifeWatch was sending some of the heart monitoring work offshore to India in violation of Medicare regulations. He became especially concerned that some of the Indian workers were not properly certified to review and interpret the heart monitoring data.

In 2012, Cieszynski believed that a patient died because of an improper diagnosis made by an unlicensed offshore technician. That is when he became a whistleblower and filed a False Claims Act lawsuit in federal court. In order to file his lawsuit, he provided what he believed were important company documents to his lawyer. Those were later turned over to the government.

Under the Act, complaints are filed under seal and served on the government instead of the defendant. This allows regulators and prosecutors to investigate the merits of the case in secret. Usually the case is unsealed when the government decides to intervene or allow the whistleblower’s counsel to pursue the case. Until unsealed, the whistleblowers identity is not disclosed.

When the complaint was unsealed, LifeWatch Services discovered that Matt Cieszynski was the person who brought the suit.  Their response was to file a counterclaim against Cieszynski for violating his employment agreement and the separate HIPAA nondisclosure agreement.

On May 9th, Magistrate Judge Schenkier dismissed LifeWatch’s counterclaim in a case widely watched by both members of the plaintiffs and defense whistleblower bar.

In dismissing the counterclaims, Judge Schenkier discussed the “strong policy of protecting whistleblowers who report fraud against the government.”

The court recognized the legitimate need for companies to protect confidential information. Those needs must be carefully balanced against the need to prevent “chilling” whistleblowers from coming forward, however.

In deciding that the counterclaim against Cieszynski should be dismissed, the court examined a number of factors. Those include:

  • What was the intent of the whistleblower when taking the documents? Here Cieszynski took them for the sole purpose of reporting what he believed to be fraud. There was no evidence that he sought to embarrass the company.

  • How broad was the disclosure? In this case there was no disclosure to the public or competitors. Cieszynski only provided documents to his lawyer and the the government.

  • The scope of the documents taken from the employer. Although LifeWatch claimed Cieszynski took more documents than were necessary to prosecute his case, the court said it wouldn’t apply hindsight and require a whistleblower to know exactly what documents the government might need. Since the documents were reasonably related to what the government could need, Judge Schenkier elected not to second guess Cieszynski.

There are limits to what a person can take and what he or she can do with those documents. For example, disclosing trade secrets to competitors or releasing sensitive healthcare information to the public will not likely elicit sympathy from the court.

In a case like this, however, courts will give the benefit of doubt to the whistleblower. Especially when there has been no public disclosure and no real harm to the defendant. Although LifeWatch claimed harm, the court found the only harm was the “fees and costs associated with pursuing the counterclaim – which is a self-inflicted wound.”

Corporate counsel should think long and hard before bringing counterclaims against whistleblowers. Not only are courts generally unsympathetic to these challenges, the fee shifting provisions of the False Claims Act can make these cases expensive for the defendants. Under the False Claims Act, defendants must pay the relator’s (whistleblower) lodestar legal fees if the relator prevails.

Article By Brian Mahany of Mahany Law

© Copyright 2016 Mahany Law

No Going Back – Rejection of Promotion Offer Not a Failure to Mitigate

soccer players.jpgGibbs -v- Leeds United Football Club concerned the former Assistant Manager of the Club who took his £330,000 constructive dismissal claim to the High Court so as to sidestep the compensation ceiling in the Employment Tribunal.

Having fairly easily established the fundamental breach of contract necessary to win his claim against Leeds, Mr Gibbs then faced two more difficult questions about his compensation. First, how do you provide for mitigation where you know the dismissed employee is going to get a bonus from his new employer, and when, but don’t know how much it will be?  Second, is it a failure to mitigate that the employee declines to accept an offer of improved employment terms from the old employer?

On the first point, the Judge reviewed the options of (i) estimating the bonus figure (but thereby certainly being wrong in one party’s favour of the other) or (ii) delaying the compensation award until the bonus amount were known, but thereby racking up interest charges for Leeds and denying Mr Gibbs receipt of his money. Note that part of the relevant bonus was due to be paid by Mr Gibbs’ new employer, Tottenham Hotspur FC, little more than four months after the High Court’s decision, at a time of low prevailing interest rates and when Mr Gibbs was safely in receipt of a salary from Spurs and so had no immediate need for the money. Nonetheless, this was still felt to be hardship enough all round to leave that option on the bench.

The Judge chose instead to order that:

  • the full amount of the £330,000 award should be paid to Mr Gibbs’ solicitors to be held in an interest-bearing account;

  • the parties should then agree how much of that could be released to Mr Gibbs (i.e. leaving at least enough in the account to cover any likely bonus award from Spurs); and

  • the rest would be offset against that bonus, with the bonus amount going back to Leeds and the balance to Mr Gibbs, plus interest in each case.

All very sensible and the fact that this was a High Court case in no way prevents a similar Order (or agreement between the parties) being made by the Employment Tribunal where there is a need to reflect an uncertain future receipt in the amount of a settlement or compensation award.

On the second point, was it a failure by Mr Gibbs to take reasonable steps to mitigate his losses when he rejected Leeds’ post-resignation offer to stay at Elland Road as Head Coach/Manager? The Judge gave this allegation a fairly short shrift – having found the Club guilty of a repudiatory breach of Mr Gibbs’ contract, it could not fix things so easily.  Though the new role would have been more senior and presumably better paid, the damage caused to Mr Gibbs’ credibility among players and staff by the Club’s earlier treatment of him made it reasonable for him to refuse.  He could have taken the chance that Leeds would change its behaviour towards him, but he was not obliged to do so.  Bear in mind also the recent Employment Appeal Tribunal decision in Cooper Contracting -v- Lindsey which stressed just how high is the hurdle of showing a failure to mitigate, and also Buckland –v- Bournemouth University in 2010. There the Court of Appeal decided much against its own better judgment that once the employer was guilty of a repudiatory breach of contract, it could not “mend” that breach by profuse apologies and other appropriate steps afterwards, even if those measures would have undone all or most of the harm caused in the first place.

© Copyright 2016 Squire Patton Boggs (US) LLP

Biomass Research And Development Initiative Provides Seven Projects With Up To $10 Million In Funding

On May 9, 2016, the U.S. Department of Energy (DOE), the U.S. Department of Agriculture (USDA), and the National Institute of Food and Agriculture (NIFA) announced the recipients of up to $10 million in funding through the Biomass Research and Development Initiative (BRDI). BRDI is a joint program through DOE and USDA that helps develop sustainable sources of biomass and increase the availability of biobased fuels and products. DOE selected two of the grant winners to receive between $1 million and $2 million: the Ohio State University (OSU) project is “Biomass Gasification for Chemicals Production Using Chemical Looping Techniques,” and the Massachusetts Institute of Technology (MIT) project is “Improving Tolerance of Yeast to Lignocellulose-derived Feedstocks and Products.”

USDA then selected five grant winners to receive a total of $7.3 million in funding:

  • University of California-Riverside, to convert poplar to ethanol and polyurethane via pretreatment and lignin polymer synthesis;

  • University of Montana, to quantify ecological and economic opportunities of various forest types and to quantify benefits of replacing fossil fuel with forest-based bioenergy;

  • North Carolina Biotechnology Center, to optimize production of educational resources on biomass sorghum production in the Mid-Atlantic region;

  • Dartmouth College, to overcome the lignocellulosic recalcitrance barrier; and

  • State University of New York College of Environmental Science and Forestry, to provide life cycle understanding for the production of willow and forest biomass to mitigate investment risk.

©2016 Bergeson & Campbell, P.C.

The Federal Defend Trade Secrets Act: Impact on Employers

Trade Secrets Confidential Chain.jpgOn May 11 2016, President Obama signed The Defend Trade Secrets Act (“DTSA” or the “Act”). Effective immediately, the DTSA creates a federal civil cause of action that allows companies to file civil lawsuits for trade secret theft under the federal Economic Espionage Act. Before the passage and signing of the DTSA, the statute only provided for criminal cases brought by prosecutors. Civil trade secret cases had to be brought under state law. While the DTSA provides an added layer of protection for companies’ trade secrets, its impact on employers is more uncertain.

Federal Cause of Action

Prior to the DTSA, victims of trade secret theft could only bring civil causes of action understate trade secret laws. These laws vary widely despite the fact that many states have passed some formulation of the Uniform Trade Secrets Act. The DTSA provides a federal civil cause of action covering any trade secret “related to a product or service used in, or intended for use in, interstate or foreign commerce.” There is a three year statute of limitations which is triggered on the date on which the trade secret misappropriation was discovered or “by the exercise of reasonable due diligence should have been discovered.” The availability of a federal trade secret cause of action could make interstate trade secret disputes more efficient by reducing choice of law disputes that happen when it is uncertain which state’s trade secret law should apply and also provides access to federal courts which are accustomed to addressing sometimes complex issues of formulations and technical information that is often necessary in these cases. However, the DTSA does not preempt state trade secret actions, so forum shopping and choice of law disputes will remain prevalent.

Seizure Clause

Along with providing a federal cause of action, the DTSA affords victims of trade secret theft an ex parte seizure proceeding to prevent the propagation of misappropriated trade secrets. Such an order can be obtained only under “extraordinary circumstances.” For a seizure order to issue, the trade secret owner must show, inter alia, that the accused party has actual possession of the trade secret and that an immediate and irreparable injury will occur without the seizure.

Companies should exercise caution when invoking the DTSA’s seizure provision because the Act also provides that parties who have been accused of trade secret theft will have a claim for damages as a result of any wrongful seizure and demand the return of any material that was wrongfully seized along with the trade secret information.

Restrictions on Employee Mobility

The DTSA contains provisions related to employee mobility. The Act restricts the availability of injunctive relief to “prevent a person from entering an employment relationship” and provides that if an injunction were to place conditions on a person’s employment, such restrictions must “be based on evidence of threatened misappropriation and not merely on the information the person knows.” This provision effectively rejects the inevitable disclosure doctrine applicable in certain jurisdictions, whereby an employer can enjoin a former employee from working in a new job that would inevitably result in the use of the employer’s trade secrets. Under the inevitable disclosure doctrine, an employer does not have to provide evidence of actual or threatened misappropriation of trade secrets, just the former employee’s knowledge of such trade secrets. This claim will not be available under the DTSA. Lastly, the DTSA prohibits the issuance of an injunction which would “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade or business,” so employers in states that are more restrictive vis a vis non competes, will still be governed by those state laws.

Whistleblower Immunity

The Act’s most employee friendly clause, provides immunity to employees who disclose trade secrets either to the government for the purpose of reporting or assisting in an investigation of a suspected violation of law, or in a complaint filed in a lawsuit or related proceeding if such a filing is made under seal. Also, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may reveal the trade secret to his or her attorney and utilize the trade secret information in the proceeding if the person files any document containing the trade secret under seal and does not disclose the trade secret except under court order.

The whistleblower provision contains a notice requirement that applies to any employer that utilizes employment contracts that concern the use of trade secrets. The Act requires employers to “provide notice of the [whistleblower] immunity . . . in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.” The employer may instead, provide in the contract a cross-reference to a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law. Employers who neglect to comply with the Act’s notice requirements lose the ability to recover exemplary damages and attorneys’ fees under the DTSA in actions brought against employees or independent contractors who were not given the notice. This requirement applies to any new agreements or revisions to agreements made as of May 11, 2016, the date of enactment of the Act.

Employer Tips

The DTSA offers a mixed bag for employers. While the Act provides a federal trade secret cause of action (and the concomitant promise of more uniformity), it does not preempt state trade secret law, so forum shopping and choice of law issues will remain. The Act provides for a robust ex parte seizure proceeding to prevent the dissemination of trade secrets, but also a wrongful seizure cause of action for the accused party which could lead to costly satellite litigation. The Act limits an employer’s ability to restrict a former employee’s subsequent employment by requiring the employer to provide evidence of threatened misappropriation, rather than merely evidence of what the employee knows. Finally, the Act provides immunity for individuals who disclose trade secrets in whistleblowing situations and in retaliation lawsuits, simultaneously requiring employers to notify all employees or independent contractors subject to employment contracts that touch on trade secrets about the whistleblowing immunity. The whistleblowing notice requirements add costly administrative and legal burdens to employers who utilize such contracts.

Article By David I. RosenGalit Kierkut & Charles H. Kaplan of Sills Cummis & Gross P.C.

© Copyright 2016 Sills Cummis & Gross P.C.

FDA Outlines Future Medical Device Coordinating Center

FDALogoThe federal Food and Drug Administration’s planning board (Planning Board) for a medical device evaluation system (NMDES) recently recommended the creation of a centralized Coordinating Center to develop a national system to evaluate medical devices. Convened in 2014 by the U.S. Food and Drug Administration and the Brookings Center for Health Policy, the Planning Board emerged out of an FDA action plan in 2012 seeking to strengthen the medical device post-market surveillance system by building a more coordinated and efficient system that would track medical devices and share evidence regarding safety and efficacy.

In the report, issued on April 5, 2016, NMDES is described as a voluntary, coordinated network of partnerships that include government agencies, device manufacturers, provider organizations, health plans, and patient communities that share the common goal of “generating higher quality data and evidence at lower costs to inform and improve patient care.” The Coordinating Center proposed by the Planning Board would be responsible for governing, coordinating, and standardizing efforts among these participants. The Coordinating Center would not have explicit regulatory authority, but FDA’s authorities could authorize and initiate activities through the Coordinating Center.

NMDES as a Coordinated Network of Partners

ll post

This proposed network would build on the currently-existing limitations in obtaining evidence regarding medical devices, such as the absence of a broad adoption of unique device identifiers (UDIs) for tracking purposes, the expense of manual data entry and delays in data extraction, and limited participation in medical device tracking experts by health care providers and patients.

Although the Coordinating Center should be able to meet its objectives of optimizing data sharing, promoting best practices for device evaluation, and developing a process for disseminating safety and efficacy information, the proposed plan still has several hurdles to overcome. Under the timeline proposed in the report, it is “unlikely that a de novo entity can be organized.” Therefore, the Coordinating Center would have to be incubated at an “established hosting entity” with the plan to spin off the Coordinating Center and Governing Board into a “financially stable and independent entity.” Additionally, there is little concrete discussion of the source of early seed funding. Until such organizational and funding details are determined, NMDES and the Coordinating Center will remain aproposed system; however, as the report is the first in a series of papers to be released by the Planning Board, we expect more information to be forthcoming.

Article By M. Leeann Habte & Lindsey E. Gabrielsen of Foley & Lardner LLP

© 2016 Foley & Lardner LLP

Night Moves: FAA Makes Front Page News With Drone Exemption

On April 18, 2016, the FAA approved, for the first time ever, nighttime operation of a small unmanned aircraft system (UAS or “drone”) when used for commercial activity.  The FAA permitted Industrial Skyworks, Inc. to use drones to inspect buildings at night.

In order to get the exemption, the FAA required the following of Industrial Skyworks:

  • The pilot in command had to possess a commercial or private pilot certification that allowed night operations;

  • The pilot needed a medical certificate per 14 C.F.R. part 67; and

  • The drone had to remain in the pilot’s and visual observer’s line of sight at all times.

Industrial Skyworks bolstered its case by taking these steps to ensure the drone’s safe operation at night.

  • It would be launched from an illuminated landing and take-off area and equipped to continually alert the pilot of its location and altitude.

  • It possessed anti-collision lights visible from 5,000 feet.

  • The site of the preprogrammed flight was limited in size, and the area was restricted to authorized personnel.

  • The pilots completed a training program that included nighttime operating skills and experience.

  • The company created a comprehensive security plan, including a provision that the pilot in command and visual observer would arrive at the work site 30 minutes prior to flight to ensure their eyes adjusted to the darkness.

© Steptoe & Johnson PLLC. All Rights Reserved.

U.S. Solar Installations Reach 1 Million

Last week the Solar Energy Industries Association (SEIA) and George Washington University (GWU) issued a report estimating that the United States has reached 1 million solar installations and will surpass 2 million installations by 2018.  This is a 1,000-fold increase over 15 years as only 1,000 systems were installed in 2001, and these numbers highlight the tremendous growth experienced by the solar industry.  Of the 1 million PV systems, there are currently over 942,000 residential installations, nearly 57,000 PV installations at businesses, non-profits and government agencies, and over 1,500 utility-scale PV installations.  SEIA and GWU anticipate 4 million installations by 2020 and for the U.S. to be installing one million PV systems annually by 2025. To learn more about this solar milestone and the factors contributing to the solar industry’s growth, read on!

While currently only supplying 1 percent of U.S. electricity generation, solar energy accounted for 30 percent of new capacity last year and is expected to continue developing.  This growth has profoundly affected the job sector, where solar jobs grew 123 percent in the past five years and created 1 in 83 new U.S. jobs in 2015.  Overall, the solar industry now employs over 200,000 Americans, three times more jobs than U.S. coal mining.

Multiple factors were credited for playing a role in the U.S. reaching 1 million solar installations, including lower installation costs and predictable, stable federal and state policies.  In the last ten years, installation costs have dropped more than 70 percent, driven by declining solar module prices.  Enacted in 2008, the solar Investment Tax Credit (ITC), a 30 percent tax credit for solar systems on residential and commercial properties, was extended in December through 2021.  Meanwhile, state policies such as net-metering and renewable portfolio standards (RPS) have allowed solar to enter markets.  Currently, 44 states have net metering policies and 29 have RPS policies.

One challenge for the future of solar is the inability of lower-income households to benefit from solar due to a multitude of barriers, including a high rate of renters, multi-tenant buildings, and a lack of access to financing.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

June 2016 Visa Bulletin Update

The Department of State (DOS) has released the June 2016 Visa Bulletin that includes the “Application Final Action Dates” and “Dates for Filing Applications.”

For both family-sponsored and employment-based filings, the United States Citizenship and Immigration Service (USCIS) website indicates that the Application Final Action Dates chart must be used for May 2016.

Please see below for the Application Final Action Dates for both family-sponsored and employment-based preference filings:

Application Final Action Dates for Family-Sponsored Visa Applications

June Visa Bulletin

Movement from the May 2016 Visa Bulletin shows gradual but insignificant jumps in processing dates for this category, with the exception of China, F4 dates retrogressing from July 22, 2003 to January 1, 2003.

Application Final Action Dates for Employment-Based Preference Cases

IBI blog june 2016

Of particular note is that China EB-2 and EB-3 preference categories saw a retrogression from September 1, 2012 to January 1, 2010; and August 15, 2013 to January 1, 2010, respectively; and India EB-2 preference category also experienced a four-year retrogression from November 22, 2008 to October 1, 2004.

©2016 Greenberg Traurig, LLP. All rights reserved.

To Brexit or to Bremain? That is the Question on 23 June 2016

A View from BrusselsUK and Europe flag

As the 23 June date for the British referendum about its future in the European Union (EU) comes closer, the EU political leadership in Brussels remains uncertain how best to support the ‘Bremain’ forces in order to avoid the embarrassing and damaging departure of one of its largest and strongest members.

None of the political leaders in Brussels or in other EU capitals want to see the UK leave, but they have learned to be cautious and show restraint when it comes to engaging in EU related discussions in Britain. Often enough they were told to stay neutral (or silent) in order not to make things worse for the pro-EU forces. But they now ask themselves whether their passive stance is a sufficiently supportive strategy for a decision of this magnitude for all partners involved – also because many traditionally pro-EU industry stakeholders in the UK have remained reserved so far, leaving a lot of momentum to the “Leave” side.

Supporting the (B)Remain Camp while Preparing for the Eventuality

The top EU leadership has clearly spoken out in favour of the UK to remain a part of the European family. Already in 2014 European Commission President Juncker has given the financial services dossier to the British EU Commissioner Jonathan Hill, and has recently asked Jonathan Faull, a top level UK EU official in Brussels, to lead the Commission’s high level Brexit task force.

Influential national political leaders, including German Chancellor Angela Merkel, have clearly spelled out that they want the UK to remain, and have grudgingly accepted UK specific political concessions in an EU summit in February 2016 in order to support David Cameron. They are wary of potential Brexit copycats across Europe.

Behind closed doors, EU institutions such as the European Central Bank and the European Commission are preparing itself for the eventuality of the British voting to “leave” on 23 June. They cannot afford not to, given the enormous impact it would have on Europe – akin to the “Grexit” situation in recent years.

A View from the United States

On 22 April 2016, President Obama visited London and argued that he had a right to respond to the claims of Brexit campaigners that Britain would easily be able to negotiate a fresh trade deal with the US. He said,

“They are voicing an opinion about what the United States is going to do, I figured you might want to hear from the president of the United States what I think the United States is going to do. And on that matter, for example, I think it’s fair to say that maybe some point down the line there might be a UK-US trade agreement, but it’s not going to happen any time soon because our focus is in negotiating with a big bloc, the European Union, to get a trade agreement done. The UK is going to be in the back of the queue.”

The Only Certain Thing is Uncertainty

The overall uncertainty related to a potential Brexit is large and little is known about how the separation process between the UK and the European Union would look like in practice. Many questions remain unanswered, including the political dynamics a Leave decision would trigger within and outside the UK.

What seems certain is that if Britain does leave the EU, a multi-year separation and negotiation process will commence.

When Greenland left the European Economic Community in 1985 it took a full three years to complete – and this even though they only had a few really important political issues to solve. The UK has been part of the European Union since 1973 – thus the social, legal and economic entanglement is much higher.

Article By Wolfgang A. Maschek & Helen Kavanagh of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

In Wake of Panama Papers Scandal Obama Calls for Stricter Bank Regulations, Tax Rules

In a news conference today President Obama addressed rules and proposed regulations announced Thursday intended to help the U.S. fight tax evasion and other crimes connected to anonymous offshore companies and accounts.  The announcements come after a month of intense review by the administration following the first release of the so-called Panama Papers, millions of documents stolen or leaked from Panamanian law firm Mossack, Fonseca.  The papers have revealed a who’s who of international politicians, business leaders, sports figures and celebrities involved with financial transactions accomplished through anonymous shell corporations.

The new regulations include a “customer due diligence” rule requiring banks, mutual funds, securities brokers and other financial institutions to determine, verify and keep records about the actual ownership of the companies with whom they do business.  The administration has also proposed regulations requiring owners of foreign-owned “single-member limited liability companies” to obtain employer identification numbers from the IRS.  In an effort to increase transparency and address “the problem of global tax avoidance,” both rules are intended to make more easily discoverable the actual ownership of offshore companies and accounts, allowing for easier investigation of suspected fraud, tax evasion and money laundering.  Currently, companies can do business in the U.S. anonymously by registering in states that do not require full disclosure of actual ownership.

The new rules create regulatory obligations for a broad array of financial institutions, and potential new obligations for off-shore investors.  A further release of Panama Papers is expected on Monday, with the identities of many U.S. companies and individuals involved in such “anonymous” shell corporations likely to be revealed, and greater scrutiny of such transactions and the financial institutions involved with them likely to follow.

Copyright © 2016, Sheppard Mullin Richter & Hampton LLP.

Tokyo District Court Rules that “US-Style” Dismissal is Invalid

badge_button_japan_flag_800_2185Article 16 of the Japanese Labour Contracts Act provides that “If a termination lacks objectively reasonable grounds and is not considered to be appropriate in general social terms, it is treated as an abuse of rights and is invalid”.  Obviously the terms “objectively reasonable grounds” and “appropriate in general social terms” are ambiguous but here is a case which sheds a little light on those two phrases.

On March 29, 2016 the Tokyo District Court ruled that the termination of the five plaintiff employees by Japan IBM was invalid.   Chief Judge Toru Yoshida ordered Japan IBM to reinstate them and to pay their salary retroactive to the date of termination.  The plaintiffs were all dismissed without notice based on what IBM said was their poor performance.  The employees alleged that the real reason was a desired reduction of the workforce and that IBM picked on them because they were members of a labour union which was against any restructuring, and not because their performance actually justified their dismissals.

The Court did indeed find that the plaintiffs’ performance was lower than average. However, it ruled that continuous lower evaluation based on a relative evaluation system is not enough to justify the termination.  Merely because their performance was poorer than their colleagues’ did not mean that they were objectively unable to perform the duties of the role to an adequate standard.  As a result, said the Court, Japan IBM had abused the right to terminate.

The plaintiffs’ lawyer said proudly during media interview at the Court, “This judgement is a landmark case because the judgement proved that the Japanese legal theory of “abuse of right” can serve as a brake on US-style terminations”.  In fact it was already very clear that Japanese law would block dismissals without very good reason (i.e. not including performance unless supported by very strong evidence of very serious shortcomings), but we can probably forgive him in his moment of triumph.  Even if it is not strictly a landmark, the decision does make it clear that relatively (as opposed to absolutely) poor performance will not count as “objectively reasonable grounds” for a dismissal, and that a termination without prior warning (or which is stated to be for an untrue reason) will not be found to be “appropriate in general social terms”.

Therefore, unilateral terminations in Japan are often litigated. Since the sanction of default is usually reinstatement rather than a cash payment, getting it wrong for the sake of expediency is often not a sensible option.  This IBM case is a good lesson for employers in Japan accustomed to US or similar employment systems that poor performance is not always a justifiable reason to dismiss.  Establishing objectively reasonable grounds is a very high hurdle in Japan and may strain the patience of employers not used to that burden.  It is therefore much preferable to try to agree a severance with the employee.  While this may be expensive it will at least be effective to terminate his employment and draw a conclusive line under the matter.  The employee in turn gains a cash cushion and an opportunity to leave his employment with little loss of face and a clear record and reference.

© Copyright 2016 Squire Patton Boggs (US) LLP

Oxford, Alabama, City Council Repeals Bathroom Ordinance Targeting Transgender Individuals

The Oxford, Alabama, City Council has repealed on May 4, 2016, an ordinance it passed a week previously that barred transgender people from using a bathroom that corresponds with their gender identity. (See our article, Oxford, Alabama, City Council Adopts Ordinance Restricting Access to Bathroom Facilities Based on Biological Sex.)

The ordinance made it unlawful for a person to use a bathroom or changing facility within the jurisdiction of the City that did not correspond to the sex indicated on the individual’s birth certificate. Persons deemed to have violated the ordinance could have faced a misdemeanor charge, punishable by a fine of up to $500 or up to six months’ incarceration.

 The ordinance quickly garnered national attention and civil rights groups, including the Human Rights Campaign and the Southern Poverty Law Center, publicly condemned the ordinance. In a letter issued to the Oxford City Council prior to the repeal, the Southern Poverty Law Center, the American Civil Liberties Union, and the ACLU of Alabama stated that the ordinance violated the Equal Protection Clause by singling out transgender people for different and unequal treatment. The groups also argued that the ordinance violated the due process clause, “because of its broad reach and lack of enforcement mechanisms,” which, according to the groups, left it unclear “whether people risk arrest simply for failing to carry their birth certificates to the restroom at all times.”

The letter also stated that the ordinance violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in public schools. The letter noted a recent Fourth Circuit Court of Appeals decision, G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 LEXIS 7026 (4th Cir. Apr. 19, 2016), in which the U.S. Court of Appeals for the Fourth Circuit, in Richmond, accorded deference to the Department of Education’s interpretation of regulations governing toilets, locker rooms and shower facilities. The Department of Education opined that a school must treat transgender students consistent with their gender identity.

In a special meeting, the Council voted 3-2 to repeal the ordinance. Because the mayor was ill and had not yet signed it, the Council could vote to recall the ordinance. In repealing the ordinance, some Council members expressed concerns regarding whether the ordinance violated Title IX of the Education Amendments of 1972.

In addition to the repeal of the Oxford ordinance, the U.S. Department of Justice took a similar position in a letter dated May 4, 2016, to North Carolina Governor McCrory. The DOJ stated that North Carolina’s law restricting bathroom access to restrooms based on an individual’s biological sex and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972. (See our article, Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful.)

Jackson Lewis P.C. © 2016

U.S. Designations Targeting a Major Panamanian Money Laundering Organization Not Aided by the Panama Papers Leak

Yesterday, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced designations against the Panama-based Waked Money Laundering Organization, including its leaders, network of supporters and associates, and companies. According to press reports, Colombian law enforcement arrested the organization’s leader, Nidal Ahmed Waked Hatum, at a Bogota airport the day prior to the designations.

In total, OFAC added 8 individuals and 68 business entities to the List of Specially Designated Nationals (SDN List) pursuant to the Foreign Narcotics Kingpin Designation Act (Kingpin Act). Narcotics traffickers have used these businesses to obscure the source of drug money through a variety of means, including trade-based money laundering, bulk cash smuggling, real estate development, and illicit financial services.  The designation of Balboa Bank & Trust is particularly noteworthy, as it reflects Treasury’s continued willingness to use the Kingpin Act against financial institutions.  As noted in a previous entry, OFAC had not designated a bank pursuant to the Kingpin Act prior to November 2015.

OFAC clearly anticipates that these designations will cause significant disruptions, as it concurrently issued three General Licenses authorizing certain wind down transactions involving a hotelnewspapers, and a shopping mall.  U.S. persons should carefully consider the scope and expiration dates of these licenses prior to engaging in any dealings with these designated companies.

The designations do not signal the beginning of United States government actions in response to the Panama Papers leak.  Any potential use of those documents will be limited by the legal ethical issues surrounding the use of intentionally disclosed materials likely protected by the attorney-client privilege.  In addition to the legal ethical limitations, the evidentiary which serves as the administrative record for the designations would have required several months for investigation, drafting and interagency approval.  OFAC could not have finalized such an extensive package of designations within one month of the leak.

Copyright Holland & Hart LLP 1995-2016.

FDA Issues Menu Labeling Final Guidance

Tomato labelThe enforcement date will likely begin in May 2017.

The US Food and Drug Administration (FDA) issued its final guidance on April 29 on Menu Labeling (Final Guidance).[1],[2] Importantly, the FDA intends to begin enforcing the Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments Final Rule (Menu Labeling Final Rule)[3] one year from the date that the Final Guidance’s Notice of Availability (NOA) is published in the Federal Register. The NOA for the Final Guidance is expected to be published in early May 2016. Thus, enforcement of the Menu Labeling Final Rule will likely begin in May 2017.

The 58-page Final Guidance is largely a reprint of the previous draft guidance of the same name. The Final Guidance contains many nonsubstantive changes from the draft guidance and provides additional examples (as well as several new, revised, and/or reformatted questions and answers on topics such as covered establishments, alcoholic beverages, catered events, mobile vendors, grab-and-go items, and record-keeping requirements).
The more notable changes in the Final Guidance include the following:

  • The inclusion of examples for temporary menu items (e.g., jack o’lantern cookies or holiday gift tins of popcorn).

  • Exemptions for private off-site catering events from menu labeling, even where the catered items are standard menu items.

  • Mobile vendors who walk through entertainment venues (such as baseball parks) and sell food and beverages are not considered covered establishments, and thus are not required to comply with the Menu Labeling Final Rule.

  • Additional information provided to explain a menu board, where a “menu board” can include multiple forms of written material. The crucial factor of what constitutes a menu board is whether the written material is or is a part of the primary writing from which a customer makes an order selection.

  • Standalone coupons that can be used to place an order (i.e., the coupon contains the name of the standard menu item, the price, and the phone number/website) must provide calorie declaration. However, if a coupon does not include a web address or phone number for placing orders, then it is not considered a menu, and a calorie declaration is not required.

  • An additional description for the inclusion of sauce(s) nutrition information served in multiserving standard menu items.

  • Confirmation that the calorie declaration requirements for electronic menus and menus on the Internet are the same as the requirements for printed menus.

  • Clarification that standard menu items in different sizes are not considered variable menu items unless they come in different flavors, varieties, or combinations and are listed as a single menu item.

  • Additional examples of declarations of calories in combination meal products when a meal comes in multiple sizes with multiple choices of sides.

  • Clarification that, if a covered establishment has multiple digital menu boards with rotating displays, then the disclosure statements should appear on each rotating display of each digital menu board to help ensure that the statements are clear and conspicuous to the consumer and posted prominently.

  • Calorie declarations directly on the package of grab-and-go items should declare the calories for the entire package as they are usually prepared and offered for sale (rather than based on reference amounts customarily consumed (RACCs)).

  • Any substantiation records for nutrient values should be maintained either at the covered establishment or the corporate headquarters for the duration of the time that the standard menu items are offered for sale at the covered establishment. FDA also recognizes that it is not necessary to maintain information on nutrient values for foods that are no longer standard menu items and are no longer offered for sale at a covered establishment, because this information is no longer beneficial for consumers if they cannot purchase those items.

  • Further explanation of when FDA-required statements from responsible individuals employed at covered establishments for nutrient determinations are required, along with sample statement language.

  • Additional guidelines for alcohol—

    • For caloric declaration of multiple beers that have the same calorie amounts, a single calorie declaration can be used, provided that the declaration specifies that the calorie amount listed represents the calorie amounts for each individual beer variety.

    • Clarification that, to the extent that beers on tap are not self-serve, they are exempt from the requirements for calorie declarations of standard menu items.

    • Further explanation regarding the acceptability of covered establishments’ reliance on calorie information and nutrition information on alcohol beverage labels consistent with Alcohol and Tobacco Tax and Trade determinations.

    • Discussion about the inclusion of calorie information for “suggested” alcohol pairings.

    • The applicability of the Menu Labeling Final Rule to covered establishments that sell only one type of standard menu item (e.g., beer).

As previously stated, the Menu Labeling Final Rule and Final Guidance provide that the categories of covered establishments include not only restaurants and similar retail food establishments, but also movie theaters, amusement parks, bowling alleys, sports arenas, other entertainment venues, food service vendors, food takeout and delivery establishments, quick service restaurants, table service restaurants, convenience stores, coffee shops, bakeries, delis, grocery stores, supercenters, and fitness clubs.
However, the Common Sense Nutrition Disclosure Act of 2015, which passed in the US House of Representatives and is pending in the US Senate, would

  • direct the secretary of the US Department of Health and Human Services to issue new rules that allow a food establishment to post nutritional information exclusively on its website if the majority of its orders are placed online,

  • clarify that advertisements are not necessarily considered menus, and

  • aim to protect establishments from being sued for human error.[4]

We will continue to monitor congressional and FDA menu labeling activities.

Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

[1] FDA CFSAN Constituent Update, FDA Issues Final Guidance on Menu Labeling (Apr. 29, 2016), available here.

[2] A Labeling Guide for Restaurants and Retail Establishments Selling Away From-Home Foods – Part II (Menu Labeling Requirements in Accordance with 21 C.F.R. 101.11): Guidance for Industry (Apr. 2016), available here.

[3] Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments; Calorie Labeling of Articles of Food in Vending Machines; Final Rule. 79 Fed. Reg. 71156 (Dec. 1, 2014), available here.

[4] See Text of the Common Sense Nutrition Disclosure Act of 2015, H.R. 2017 (Referred to Senate Committee Feb. 22, 2016), available here.

The Evolving Role of Today’s Law Firm Leaders

The National Law Review is in attendance at the 23rd Managing Partner Forum today in Atlanta, Georgia. NLR Managing Director Jennifer Schaller is moderating a collaborative panel discussing investing in clients. Check out the below article by founder of the Managing Partner Forum, John Remsen.

We all know that the legal profession has changed dramatically over the past two decades, resulting in a new set of challenges that yesterday’s firm leaders never had to confront. There’s an oversupply of lawyers. More demanding and less loyal clients. More demanding and less loyal partners and associates. Staggering advances in technology. Tort reform in many jurisdictions. Skyrocketing operating expenses. Mergers and acquisitions and unprecedented competition. Certainly these and other trends have created tremendous pressures for law firm leaders—who must change the way they operate if their firms are to remain viable in the long run.

Yet most aren’t keeping pace. In the midst of all the change, far too many firms haven’t changed much at all. They run essentially the same way they did 20 years ago—like loose confederations of solo practitioners sharing office space.

Why? According to nationally known lawyer-psychologist Dr. Larry Richard and his groundbreaking research on the subject, most lawyers hate change. They also love autonomy and resist rules and structure. They have little patience and want immediate results. They don’t like risk and shun the unknown. So for many firms, it’s easier just to leave things alone.

On the other hand, some firms “get it.” These firms are fundamentally changing the way they do business, with streamlined governance, standardized systems and procedures, strategic plans, and marketing and business development programs. They enforce minimum performance standards for partners and associates. Many are also divesting themselves of low-profit clients and practice groups. They are deequating underperforming shareholders and asking disruptive lawyers—even those with big books of business—to leave. These firms are emerging as the front-runners in the market because their top levels of leadership have the moxie and vision to make change happen.

The Firm Leader as Change Agent

In today’s most successful law firms, the role of managing partner has evolved significantly, from that of a “caretaker” trying not to rock the boat to that of a dynamic consensus builder and change agent. Today the managing partner is the CEO of a multimillion-dollar entity in a rapidly changing industry and needs to exercise critical leadership skills to set the example for leaders at all other levels of the firm and thus ensure the organization’s success.

Of course, knowing that you need to set the course to success and actually doing it can be difficult, given the press of countless to-dos firm leaders tackle every day. Consider this: Last year TheRemsenGroup surveyed more than 170 managing partners from firms ranging in size from 10 to 2,200 lawyers. Of those firms, 60 percent had more than 50 lawyers. When they were asked what their most important contributions were in their roles as managing partner, building consensus among shareholders and initiating change topped the list of responses. In contrast, when asked where they spent most of their time, day-to-day administration ate up way too much of it.

We also asked if these managing partners had a job description: 74 percent did not. In addition, 76 percent did not have a clearly defined exit strategy.

What can we take from this? Too many leaders at the top levels of law firms are winging it.

Steps to More Effective Leadership

A successful firm leader must be a visionary, a communicator, a negotiator, a coach, a disciplinarian, a cheerleader and a psychologist all wrapped up in one person. Needless to say, it’s not an easy job, especially when you add management responsibilities to the mix.

There are, however, steps that the top levels of firm leadership can take to enhance their effectiveness and improve the performance of their organizations. Here, in a nutshell, is the guidebook.

  • Codify the Top Leader’s Job

Every managing partner should have a well-defined job description. It should set forth the primary responsibilities of the position, the amount of time required, and how the partner will be compensated for his or her nonbillable contributions. Also, it should account for the fact that a managing partner’s time should be spent mostly in the areas of planning, communication and consensus building. Day-to-day administration functions should be delegated to a capable administrator.

  • Appoint Strong Group Leaders

A firm needs strong leadership at all levels. Unfortunately, departments and practice groups are too often led by the most senior lawyer or the lawyer with the biggest book of business when, in fact, that may not be the right person for the job. Passion, commitment and leadership skills are required for these important roles. To help ensure the right people are put in the right positions, department heads, practice group chairs and branch office managing partners need job descriptions, just like the managing partner does.

  • Develop a Firmwide Strategic Plan

The evidence is clear. Firms that have plans outperform those that do not. Planning helps to bring everybody onto the same page, sharing the same vision for the future. Firm leaders have to embrace and encourage the planning process and the plan’s implementation at the firm, practice group and individual lawyer levels.

  • Build a Firm-First Culture

Leaders should always encourage and reward a “firm-first” mind-set and attitude among all the firm’s members. There are a variety of ways to do this, including through compensation mechanisms, but even simple steps can prove very effective. For example, insist on the term “our” clients instead of “mine” and “yours.” Leaders must do everything possible to promote trust, teamwork and fairness within the firm.

  • Lead by Example

Managing partners and practice group leaders cannot be hypocrites. They must “walk the talk” by being first in submitting their individual marketing plans, getting their time records in, mentoring younger colleagues, returning client phone calls and otherwise setting the standard for everyone in the firm.

  • Invest in the Future

According to LexisNexis’s 2007 Juris Law Firm Economic Survey, the top performing and most profitable law firms spend more per person than underperforming firms do. They are investing in the future. The lesson: Resist the temptation to enhance profitably through cost cutting. That’s a short-term fix. Profitable firms look at long-term impacts.

  • Groom Successor Leaders

The best leaders are wise enough to identify and mentor a successor for their roles. They give that person important, high-profile assignments so that the firm’s people gain trust and confidence in the successor’s leadership skills well before the torch is actually passed. In addition, managing partners in particular should have a well-defined exit strategy that is communicated to all shareholders.

  • Be Passionate

They sure don’t teach much about leadership in law schools. But that’s not an excuse for failing to strive to be the best firm leader you can be. There are many intricacies involved in steering a firm toward top performance in times of change. To learn more about them, you should attend leadership conferences and ask your firm for training. Read books and articles. Learn from other managing partners and practice group chairs. It’s important for leaders to demonstrate that they’re devoted to excellence. -After all, if the leader isn’t committed, there aren’t likely to be many followers—and the firm will stagnate as a result. Those firms with strong, passionate and committed leaders, on the other hand, will emerge as the most successful law firms of the future.

Copyright 2016 The Remsen Group

Collections in Connecticut Part 1: Pre and Post-Judgement Collection Specifics

Connecticut flag

Collections in Connecticut – how to get paid if you are owed money? Collecting money owed to you or your company can be frustrating.  You or your company are owed money and have not been paid.  What are your legal options?  The following video is the first in a series of three discussing collection law in Connecticut, pre and post-judgment collection specifics and enforcing foreign judgments.

http://www.murthalaw.com/site/video-player/player.swf

Click here for Part 2 – Prejudgment Remedy – Collections in Connecticut

Click here for Part 3 – Steps in the Connecticut Collection Process

© Copyright 2016 Murtha Cullina

Lessons for Lawyers from Steve Jobs [VIDEO]

Apple LogoThis is Small Business Week and I’m going to share with you some inspiring talks by business visionaries in this week’s blog posts.

The first is one of the most famous commencement speeches ever given — the 2005 Stanford commencement address by Steve Jobs. One of my favorite lessons from Jobs’ talk is “Don’t be trapped by dogma — which is living with the results of other people’s thinking.”

The most successful lawyers I know have followed the less-traveled road to success. They have freed themselves from conventional thinking within the legal profession. They have marketed when others have not. They were among the first to adopt alternative fee structures while others lost clients to the hidebound billable hour. They have recruited Superstars for their firms while others were happy just to fill office chairs.

Our success in helping more than 18,000 lawyers grow their firms has always been rooted in contrarian thinking.   When firms have believed that the best path to fill their coffers was to be everything to everyone, we have demonstrated the profitable power of specialization. When firms have clung to traditional advertising, we have shown lawyers that the road to better ROI lies in isolating a target market and reaching out to them one-on-one for a more engaging experience. When the legal professional scoffed at Internet marketing and social media, we proved how having a strong online presence led to more leads.

Steve Jobs was a contrarian his whole life. Listen to Jobs speak about seeing opportunities in setbacks — even his own death, which was much closer than he knew at that time:

© The Rainmaker Institute, All Rights Reserved

Artist Formerly Known as a Trademark: Prince

Prince logoI’m sure his name came immediately to mind when you read that title: Prince. That was, at least, before he changed it to the unpronounceable, androgynous “Love Symbol.” While many thought this was a marketing stunt, Prince’s “formerly known as” campaign was actually an attempt to skirt a heated legal battle with his record label, Warner Bros., by creating and producing music under a new trademark. Now that the regal record-breaking artist has passed, however, it will be interesting to see where the royalty chips will fall.

Sleepless in Seattle was in, Cheers was out and Haddaway asked the all-important question, “What is Love?” We were all a little Dazed and Confused. It was 1993 when the very public trademark battle began. “Why You Wanna Treat Me So Bad?” Prince asked Warner Bros. when they refused to release his extensive back-log of music. It seemed Warner was more focused on going “Round and Round” the promotion circuit than producing more Prince records, leaving a pile of his hand-crafted gems to sit and collect dust. Finding Warner “Delirious” in this regard and seeing their refusal as a “Sign o’ the Times,” Prince decided to “Kiss” his label goodbye and produce music under a new trademark, the unpronounceable Love Symbol, subsequently copyrighted as “Love Symbol #2.”

“The first step I have taken toward the ultimate goal of emancipation from the chains that bind me to Warner Bros. was to change my name from Prince to the Love Symbol. Prince is the name that my mother gave me at birth. Warner Bros. took the name, trademarked it, and used it as the main marketing tool to promote all of the music that I wrote. The company owns the name Prince and all related music marketed under Prince. I became merely a pawn used to produce more money for Warner Bros.”

Prince claimed in a public statement about the trademark dispute, boldly sporting the word “SLAVE” on his cheek.

While the Love Symbol album didn’t really earn him “Diamonds and Pearls,” it did garner some attention, selling millions of copies worldwide, and laid down some heavy “Purple Rain” on Warner’s Prince promo-party. Prince was waiting for the sun to set on “1999” when his contract with Warner Bros. would expire so he could begin producing music once again under his rightful, trademarked name—Prince—in 2000. Post-“Emancipation,” Prince embarked on a long and lustrous music-making career, earning world-wide critical acclaim and induction into the Rock Star Hall of Fame when he was first eligible in 2004.

With the royal Prince’s passing and his songs playing on every satellite station right now, we couldn’t help but mull over this old trademark tango and wonder what you thought? Was Prince’s bold Love Symbol move successful? Do you predict any royalty fall-out, now that he has passed, over royalties that were earned under the “Love Symbol” trademark as opposed to “Prince?”

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

Artist Formerly Known as a Trademark: Prince

TrademarkI’m sure his name came immediately to mind when you read that title: Prince. That was, at least, before he changed it to the unpronounceable, androgynous “Love Symbol.” While many thought this was a marketing stunt, Prince’s “formerly known as” campaign was actually an attempt to skirt a heated legal battle with his record label, Warner Bros., by creating and producing music under a new trademark. Now that the regal record-breaking artist has passed, however, it will be interesting to see where the royalty chips will fall.

Sleepless in Seattle was in, Cheers was out and Haddaway asked the all-important question, “What is Love?” We were all a little Dazed and Confused. It was 1993 when the very public trademark battle began. “Why You Wanna Treat Me So Bad?” Prince asked Warner Bros. when they refused to release his extensive back-log of music. It seemed Warner was more focused on going “Round and Round” the promotion circuit than producing more Prince records, leaving a pile of his hand-crafted gems to sit and collect dust. Finding Warner “Delirious” in this regard and seeing their refusal as a “Sign o’ the Times,” Prince decided to “Kiss” his label goodbye and produce music under a new trademark, the unpronounceable Love Symbol, subsequently copyrighted as “Love Symbol #2.”

“The first step I have taken toward the ultimate goal of emancipation from the chains that bind me to Warner Bros. was to change my name from Prince to the Love Symbol. Prince is the name that my mother gave me at birth. Warner Bros. took the name, trademarked it, and used it as the main marketing tool to promote all of the music that I wrote. The company owns the name Prince and all related music marketed under Prince. I became merely a pawn used to produce more money for Warner Bros.”

Prince claimed in a public statement about the trademark dispute, boldly sporting the word “SLAVE” on his cheek.

While the Love Symbol album didn’t really earn him “Diamonds and Pearls,” it did garner some attention, selling millions of copies worldwide, and laid down some heavy “Purple Rain” on Warner’s Prince promo-party. Prince was waiting for the sun to set on “1999” when his contract with Warner Bros. would expire so he could begin producing music once again under his rightful, trademarked name—Prince—in 2000. Post-“Emancipation,” Prince embarked on a long and lustrous music-making career, earning world-wide critical acclaim and induction into the Rock Star Hall of Fame when he was first eligible in 2004.

With the royal Prince’s passing and his songs playing on every satellite station right now, we couldn’t help but mull over this old trademark tango and wonder what you thought? Was Prince’s bold Love Symbol move successful? Do you predict any royalty fall-out, now that he has passed, over royalties that were earned under the “Love Symbol” trademark as opposed to “Prince?”

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

Defend Trade Secrets Act. It’s Coming: What You Need to Know

The Defend Trade Secrets Act (DTSA) is headed to President Barack Obama for his signature, and there is little doubt that President Obama will sign it into law. Below is a summary of what you need to know about this soon-to-be law, including what you should be talking to your employment law counsel about in terms of modifying employment contracts and agreements.

What is the DTSA?

The DTSA will effectively “federalize” trade secrets law and allow companies or individuals with trade secrets to file private civil lawsuits under the Federal Economic Espionage Act (the Espionage Act).

What does “federalizing” trade secrets law mean?

The federalization of trade secrets law is a game changer. Pre-DTSA, trade secrets law was a state law issue. While most states dealt with trade secrets by adopting some versions of the Uniform Trade Secrets Act, the laws (and court’s interpretation of them) varied significantly from state to state. The variations led to many hotly contested procedural issues for example forum, venue and choice-of-law.

What is the purpose of the DTSA?

The DTSA’s specified purpose is to create a nationwide law that tightens trade secrets protections to align them with those given to patents, copyrights, and trademarks. It makes the issue a federal one so that federal law and courts can control the subject area, which will provide more certainty for litigants in trade secrets cases.

What will the DTSA protect?

Federal law regarding intellectual property has been fought on three fronts: copyrights, patents, and trademarks. Now, trade secrets will enter the federal protection arena.

The DTSA will allow “[a]n owner of a trade secret that is misappropriated [to] bring a civil action…if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” Oddly enough, however, the DTSA itself does not define “trade secret.” The Espionage Act, however, does.

How will the DTSA protect trade secrets? (Hint: Seizure provision)

As set forth above, the DTSA will allow trade secret owners whose trade secrets have been misappropriated to file civil actions in federal court. It also provides for theft protections abroad, but much of this part of the law is yet to be determined.

In addition to allowing victims to be awarded damages for wrongful takings, the DTSA contains a seizure provision that allows for the seizure of stolen trade secrets in “extraordinary circumstances” upon an “ex parte application,” and “affidavit or verified complaint.” This seizure provision is something completely new in the trade secrets context, as no state law has ever provided a plaintiff with this remedy.

Although it is unclear what situations courts will eventually qualify as “extraordinary circumstances,” the threshold appears to be slightly higher than that required to obtain a temporary restraining order under the Federal Rules of Civil Procedure. In fact, the first requirement for a court issuing a seizure order is the determination that “an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or other form of equitable relief…[would] be inadequate…because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order.” These additional requirements must also be met before the court will grant a seizure:

  • an immediate and irreparable injury;

  • the harm to the applicant outweighs the harm to the legitimate interest;

  • a showing that the person misappropriated the trade secrets by improper means or conspired to misappropriate through improper means;

  • a description (with reasonable particularity) of the matter to be seized and the location of the matter to be seized (if reasonable under the circumstance); and

  • the person(s) against whom seizure would be ordered would destroy, move, hide or make the trade secrets inaccessible if they were provided notice of the application.

A seizure order is enforceable by federal law enforcement officials and the materials seized are to be deposited to the custody of the court.

While such seizures may be difficult when dealing with small bits of data or data that can be easily copied or disseminated, the DTSA provides something else no other trade secrets law offers: it allows the moving party to request that the seized information is encrypted in the custody of the court.

Is there anything else interesting about the DTSA? (Hint: Whistleblower protection)

Yes. It has an immunity protection for whistleblowers. That provision essentially provides that an individual, who reveals the disclosure of a trade secret in confidence to a federal, state, or local government official, or to an attorney, may not be held criminally or civilly liable under any federal or state trade secrets law.

Also, an individual who files a lawsuit for retaliation by an employee for reporting a suspected violation of law may disclose the trade secret to his or her attorney and use the trade secret information in the court proceeding.

What are the pros?

The advantage of the DTSA is that, for companies that operate across state and national borders and that have their trade secrets threatened by competitors across the world, state laws were previously insufficient to properly protect those companies. The DTSA will help shore up the protection of trade secrets, likely reduce jurisdictional court battles that are typical at the outset of trade secret litigation in state court, and provide litigants with federal jurisdiction.

What are the cons?

The DTSA does not preempt state trade secret laws. As such, while a litigant may bring a federal trade secrets lawsuit, that same litigant may also be able to bring a claim under state law as well. While it adds uniformity of trade secrets law at the federal level, it does nothing for the myriad of trade secrets laws at the state level. In reality, this means that a litigant is more likely to face a federal trade secrets misappropriations claim and similar state law claims. While this provides uniformity at the federal level, it does not to clarify the patchwork of state laws, and makes trade secret litigation more complex by providing more litigation options to trade secret holders. While some may see this as a good thing, because it provides multiple avenues for recovery, others prefer uniformity.

While it is not necessarily true that companies should expect to see more litigation, they should be prepared to litigate these cases on the federal stage, as well as remain up-to-date on all relevant state laws.

What should my company’s next steps be to ensure compliance and corporate readiness?

Internal Controls

Companies should check their internal controls to ensure they are properly protecting their trade secrets. Some beginning action items should include the following:

  • Audit and Identify: Perform an audit of corporate assets to identify and designate trade secrets and determine where trade secrets are maintained and who has access to them.

  • Protect: Take steps to properly and adequately protect trade secrets. For electronically available or accessible information, ensure trade secrets are username and password protected and only made available or accessible to those who need access. Encrypting electronic information will also reduce the chance that it can be taken, opened, read, and disseminated outside the company’s information systems. For tangible trade secrets, ensure trade secrets are physically locked or that physical access to them is password, keycard or otherwise protected and that only those who need access have it.

  • Revise Agreements: Many companies allow third-parties access to the property, premises, data, networks, etc. Companies should review their vendor agreements, non-disclosure agreements, and other confidentiality and other non-disclosure-type agreements to ensure they are sufficient to identify and protect corporate trade secrets.

  • Revise Policies: Companies should review their privacy policies, including corporate security and electronic use policies to ensure they are sufficient to identify and protect their corporate trade secrets. This includes reviewing non-compete, non-disclosure, and other privacy-related agreements and policies the company may have with its employees.

Dealing with Employees

The DTSA requires that employers provide notice of the DTSA’s immunity “in any contract or agreement with an employee that governs the use of trade secret or other confidential information.” Companies can comply with this requirement by cross-referencing a policy document provided to the employee that sets forth the employer’s internal mechanism for reporting a suspected violation of law. If the employer fails to do this, the employer cannot be awarded exemplary damages or attorneys’ fees in an action against an employee to whom notice was not provided. This is required for all contracts and agreements that are entered into or updated after the DTSA’s enactment date.

The takeaway for this requirement is that companies with employees should sharpen their pencils because they have contracts and agreements to modify.

Dealing with Competitors

Companies can now act swiftly against a competitor attempting to misappropriate trade secrets. Under the appropriate “extraordinary circumstances,” the ability to file an ex parte motion in federal court for the seizure of any misappropriated property provides companies with a way to actually keep these trade secrets, well, secret. In addition, the automatic access to federal courts provides companies with a forum that is often better suited to handle complex interstate and international litigation, not to mention complicated technical issues, and decreases initial costs related to procedural battles.

© Copyright 2016 Dickinson Wright PLLC

Trade Secrets, Banker Bonuses, Worker Misclassification – Employment Law This Week – Episode 25 [VIDEO]

We invite you to view Employment Law This Week – a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work.

This week’s episode includes:

  • Former Workers Violated Ex-Employer’s Trade Secret Rights

  • Financial Regulators Propose Banker Bonus Restrictions

  • D.C. Circuit: Musicians Are Employees

  • NLRB Alleges Misclassification Violates NLRA

  • In-House Tip of the Week

©2016 Epstein Becker & Green, P.C. All rights reserved.

New Board of Pharmacy Regulations Significantly Narrow the Sole Proprietor Exemption and Impose New Compounding Standards

New regulations from the Ohio State Board of Pharmacy now require any prescriber who will possess, have custody or control of, or distribute dangerous drugs that are compounded or used for the purpose of compounding to be licensed as a Terminal Distributor of Dangerous Drugs (TDDD). This new requirement is particularly noteworthy for physicians, dentists, and others who have previously operated under the “sole proprietor” exemption from licensure as a TDDD. That exemption has been widely used in Ohio and has traditionally permitted practitioners who 1) operate as sole proprietor, sole shareholder of a corporation or professional association, or sole member of a limited liability company; and 2) are the sole authorized prescribers in the practice to be exempt from the TDDD licensure requirements. These new regulations narrow this exemption by now requiring that all prescribers who “compound” or use “compounded” drugs become licensed as a TDDD, even if those prescribers had previously qualified under the “sole proprietor” exemption.

The scope of what constitutes “compounding” is broad – likely broader than what is commonly believed. Ohio law defines “compounding” as the preparation, mixing, assembling, packaging, and labeling of one or more drugs and also includes the reconstitution of drugs in accordance with the manufacturer’s instructions.1 Under the new regulations, any “compounding” activity, possession, or administration of a compounded drug requires TDDD licensure, even by a previously exempt “sole proprietor.”

Additionally, these same new regulations impose new standards for compounding sterile products, non-sterile products, and hazardous drugs and more stringent rules governing purchase of compounded drugs from in-state pharmacies, out-of-state pharmacies, and outsourcing facilities.2 These regulations were imposed in order to bring Ohio into compliance with the 2013 Drug Quality and Security Act, a federal law passed in response to the deadly outbreak of fungal meningitis in 2012 that was linked to the New England Compounding Center.

© 2016 Dinsmore & Shohl LLP. All rights reserved.


1 Hazardous Drug Compounding by Prescribers
2 http://codes.ohio.gov/oac/4729-16

gTLD Sunrise Periods Now Open: April 2016

As first reported in our December 2013 newsletter, the first new generic top-level domains (gTLDs, the group of letters after the “dot” in a domain name) have launched their “Sunrise” registration periods.  Please contact us or see our December 2013 newsletter for information as to what the Sunrise Period is, and how to become eligible to register a domain name under one of the new gTLDs during this period.

As of April 29, 2016, ICANN lists Sunrise periods as open for the following new gTLDs:

.homes .vip
.auto .salon
.group .store
.gmbh .ltd
.promo .tube
.stream .med
.try .redumbrella
.travelersinsurance .stcgroup
.viva .stc

ICANN maintains an up-to-date list of all open Sunrise periods here. This list also provides the closing date of the Sunrise period.  We will endeavor to provide information regarding new gTLD launches via this monthly newsletter, but please refer to the list on ICANN’s website for the most up-to-date information – as the list of approved/launched domains can change daily.

Because new gTLD options will be coming on the market over the next year, brand owners should review the list of new gTLDs (a full list can be found here) to identify those that are of interest.

© 2016 Sterne Kessler

Prince Dies Without A Will; Special Administrator Appointed

Although the quote: “Where there is a will, there is a way” is meant to encourage perseverance, it also seems appropriate in the estate planning realm as a Last Will and Testament can guide surviving family members as to the disposition of assets after a person’s death.  In the case of Prince, the quote is better modified to say: “Where there is no will, there is a messy road ahead.”  As reported earlier this week, Prince’s sister filed an emergency petition asking the court to appoint a special administrator to oversee the initial stages of administering Prince’s estate.  She did so because no Last Will and Testament could be located.  The Court agreed and appointed Bremer Bank, National Association as the special administrator.  The Court’s actions allow Bremer Bank to marshal or gather the assets and preserve such assets until a personal representative or executor can be appointed.  In short, it appears that Prince failed to plan and the laws of Minnesota will now dictate what happens to his estate.

And what does this all mean?  Dying without a Last Will and Testament or a revocable living trust means that a person is intestate and the laws of the state in which they resided at death will spell out who is to receive the assets of the estate.  In Prince’s case, since he had no spouse or surviving children or parents, his siblings, both full and half siblings, are the beneficiaries of his estate under Minnesota law.  Thus, the law of unintended consequences may now apply as Prince may not have wanted his siblings to become the beneficiaries.  He may have wanted to include charity or friends perhaps even other relatives.  But, without a Last Will and Testament or revocable living trust, we will never know what his wishes may have been.

It will also be interesting to see how the administration of Prince’s estate unfolds.  A number of questions will have to be asked and answered, including, but not limited to: Who will end up being the personal representative or executor?  What debts does the singer have?  How will the estate tax be paid (both at the Federal and state level since Minnesota has an estate tax)? What assets will each beneficiary ultimately receive?  Will an agreement be reached amongst the beneficiaries regarding the management and distribution of the assets?  Unfortunately, the process that has begun will be lengthy, likely expensive and may result in the dismantling of a legacy if the process devolves into an ugly court battle. All of which could have been avoided or at least minimized had Prince simply planned.

© 2016 Odin, Feldman & Pittleman, P.C.

Senate Panel Passes “Internet of Things” Bill

Internet of Things.jpgOn Wednesday April 27th, the Senate Commerce Committee passed a bill meant to increase government involvement in the development of the “Internet of Things” (IoT).

By a voice vote, the committee approved the Developing Innovation and Growing the Internet of Things (DIGIT) Act, sponsored by Sen. Deb Fischer (R-Neb.), Sen. Kelly Ayotte (R-N.H.), Sen. Cory Booker (D-N.J.), and Sen. Brian Schatz (D-Hawaii).  The bill would require the establishment of a working group tasked with identifying proposals meant to facilitate IoT growth.  The working group would include representatives from the Transportation Department, the Commerce Department, the Federal Trade Commission, the Federal Communications Commission, Office of Science and Technology Policy, and the National Science Foundation. Separately, the Commerce Department recently issued a Request For Public Comment seeking comment on the role of government in fostering the advancement of IoT.

The bill also sets up a steering committee that will include industry stakeholders.  Both the working group and the steering committee will examine a range of IoT issues, including the regulatory challenges that may limit the growth of IoT and the availability of wireless spectrum for IoT devices.  The committee also approved several minor amendments to the bill, which, among other things, expanded the government agencies involved in the working group.

Article By Ani Gevorkian of Covington & Burling LLP
© 2016 Covington & Burling LLP

Case of First Impression: Federal Circuit Endorses Patent-Agent Privilege

In a case of first impression regarding whether communications between a non-lawyer patent agent and a client are legally privileged, a split panel of the US Court of Appeals for the Federal Circuit held that a patent-agent privilege is warranted on a limited basis where an agent is engaged in the congressionally endorsed, authorized practice of law. In Re Queen’s University at Kingston, PARTEQ Research and Development, Case No. 2015-145 (Fed. Cir., Mar. 7, 2016) (O’Malley, J) (Reyna, J, dissenting).

The opinion followed the plaintiffs’ petition for mandamus. At the district court, the petitioners withheld documents reflecting communications between the plaintiffs’ employees and the non-lawyer patent agents who prosecuted the patents-in-suit based on an alleged patent-agent privilege. The district court overruled objections to the magistrate’s order granting defendants’ motion to compel production over the alleged privilege, but agreed to stay the discovery order pending a writ of mandamus. Applying Federal Circuit law, the Court found that mandamus was warranted to decide the issue of first impression, which had split the lower courts.

The Federal Circuit first recognized that “Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting ‘common law principles.’” Finding that the respondents did not argue that a patent-agent privilege was foreclosed by the US Constitution, any federal statute or any rule prescribed by the Supreme Court of the United States, the Court turned to reason and experience, as directed by Rule 501, in order to determine whether recognizing a privilege was now appropriate. The majority concluded that it was, holding that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court’s characterization of their activities as the practice of law, and the current realities of patent litigation warranted an independent patent-agent privilege.

The Federal Circuit relied on the Supreme Court’s prior assertion that the preparation and prosecution of patent applications for others constitutes the practice of law. Further, the majority found that Congress had delegated to the commissioner of patents oversight authority concerning lawyers, agents or other persons representing applicants or other parties before the US Patent and Trademark Office (PTO), and that the commissioner had, in fact, allowed both lawyers and agents to practice before the PTO.

In further support, the majority panel cited both the Supreme Court’s recognition of Congress’s delegation of supervisory authority to the commissioner of patents for lawyers and agents alike, and related legislative history acknowledging the practitioners’ equivalent professional rights before the PTO. The majority found that a client has a reasonable expectation that all communications relating to obtaining legal advice on patentability and legal services in preparing a patent application will be kept privileged, and that denying privilege to agents would frustrate Congress’s intent to provide clients a choice between agent and lawyer. As a result, the majority found that a patent-agent privilege is coextensive with the rights Congress affords to patent agents, and serves the same important public interests as the attorney-client privilege.

The Court also noted that the new privilege’s scope is necessarily limited to communications with non-lawyer patent agents when those agents are acting within their authorized practice of law before the PTO. The Court found that the Code of Federal Regulations (CFR) sets forth the acts permitted by non-lawyer agents and helps to define the scope of communications covered under the privilege. For example, communications are due the privilege if made in furtherance of the performance of tasks specifically set forth in the CFR, or “are reasonably necessary and incident to the preparation and prosecution of patent applications or other proceedings before the [PTO] involving a patent application or patent in which the practitioner is authorized to participate.” The Court stressed that it is the burden of the person asserting the privilege to justify its applicability. The Court also cited examples of non-privileged communications, including those with a patent agent who offers an opinion on the validity of another party’s patent in contemplation of litigation or the sale or purchase of a patent, or on infringement.

In dissent, Judge Reyna argued that the public’s need for open discovery outweighed the need for the privilege. The dissent also argued against the new privilege with the following reasoning:

  • The privilege may adversely affect an agent’s duty of candor.

  • Agent communications are already routinely protected because of lawyer involvement.

  • Patent agents and clients are able to destroy written communications through implementation of document-destruction policies.

  • Determining the scope of the privilege is complicated and uncertain.

  • Congress and the Supreme Court have recognized a difference between agents and lawyers.

  • Evidence suggests that Congress did not intend that agents have a privilege.

  • No state has created an agent-client privilege.

  • The Judicial Conference Advisory Committee has not recommended creating the privilege.

  • Lawyers hold the privilege because of their professional status.

  • The Supreme Court has never held that patent agents practice law; it has merely recognized that the Florida Supreme Court has done so under Florida law.

  • Congress has never believed that patent agents practice law.

The Federal Circuit remanded the issue to the district court to determine whether the patent-agent privilege applied.

Article By John C. Low, PhD
© 2016 McDermott Will & Emery

Senate Takes on Business Tax Reform; Treasury to Have “Intense Comment Period” for Inversion Regulations

Legislative Activity

Senate to Consider Business Tax Reform Proposals

Following multiple hearings on tax reform thus far this year in the House Ways and Means Committee, this week the Senate Finance Committee will hold a hearing on business tax reform. During the hearing, the difference between Republican and Democrat approaches to taxing corporate income, including what the top rate on corporations should be, will be on full display. In advance of the hearing, the Joint Committee on Taxation (JCT) has released an overview of various proposals for business tax reform, including: (1) the President’s framework; (2) reforms that both maintain and change the structure of the current business tax regime; and (3) proposals to shift to a consumption-based regime. As part of the Committee’s efforts on business tax reform, Senator Orrin Hatch (R-UT) last week reaffirmed his commitment to move forward with his “corporate integration” proposal by the end of June, noting that he is still awaiting a score from JCT before proceeding. For his part, Senate Finance Committee Ranking Member Ron Wyden (D-OR) this week is expected to introduce a proposal that would modify current corporate depreciation schedules – something former Senate Finance Committee Chairman Max Baucus (D-MT) also did during his time in the Senate.

As for tax reform efforts in the House, Ways and Means Committee Chairman Kevin Brady (R-TX) has announced his plans to release a comprehensive tax reform “blueprint” by June of this year as part of Speaker Paul Ryan’s (R-WI) Tax Reform Task Force efforts, while Representative Charles Boustany (R-LA) is expected to continue with his efforts on international tax reform – though whether we will see any action this year on his plan remains to be seen.

Notably, as both House and Senate tax-writers debate the best path forward for tax reform, Republicans lawmakers are pushing for the adoption of Representative Bob Goodlatte’s (R-VA) plan (H.R. 29, Tax Code Termination Act) that would repeal the Internal Revenue Code by 2019 and require Congress to approve a new system of taxation by July of that year. While the future of this legislation is uncertain – and no Senate counterpart exists – there are presently more than 130 co-sponsors in the House.

This Week’s Hearings:

  • Tuesday, April 26: The Senate Finance Committee will hold a hearing titled “Navigating Business Tax Reform.”

Regulatory Activity

Treasury Open to “Intense Comment Period” on Inversion Regulations

Following intense scrutiny and pushback from industry, last week Treasury Deputy Assistant Secretary Bob Stack acknowledged that Treasury “may have missed things” in its latest rulemaking targeting  inversions and the ability of multinational corporations to engage in so-called “earnings-stripping” practices. This acknowledgement comes at the same time that 18 former Treasury officials sent a strongly-worded letter to Treasury Secretary Jack Lew urging his Department to focus on reforming the tax Code, not on inversions as a standalone issue.

In looking ahead, Mr. Stack has promised that Treasury “will have an intense comment period, [and] be listening to taxpayers.” He also suggested that Treasury “want[s] to do things that are both right from a policy point of view and also minimize burdens on companies…[but] [t]he answer to inversions is not to join the race to the bottom so that we have ultimately a zero tax rate.” Notably, Internal Revenue Service (IRS) Commissioner John Koskinen has indicated that the IRS does not intend to put out any “significant” regulations past Labor Day, which creates a rather tight timeframe for Treasury to digest the responses to its proposed regulations and still finalize the regulations this year.

Separately, partly spurred by fallout from the “Panama Papers” fiasco, the Treasury Department has announced that it also soon plans to finalize rules proposed in 2014 that would require the beneficial owners of single-member LLCs to identify themselves to the IRS. According to Treasury Secretary Lew, this, along with widespread implementation of the Organisation for Economic Co-operation and Development’s (OECD) Base Erosion and Profit Shifting (BEPS) Project and its proposal to require country-by-country reporting of certain tax information by large multinational corporations will help combat tax evasion.

© Copyright 2016 Squire Patton Boggs (US) LLP

San Francisco Becomes First U.S. City To Require Employer-Funded Paid Parental Leave

Mother Bottle Baby.jpgThis month, the San Francisco Board of Supervisors unanimously approved an ordinance that provides six weeks of parental leave for bonding with a new child at 100% of the employee’s rate of pay (subject to certain caps).  The ordinance which will take effect beginning January 1, 2017, will make San Francisco the first U.S. city to require employer-paid parental leave.

The new ordinance will go above and beyond the California state mandate, which currently provides covered employees six weeks of paid family leave at 55% of their pay for baby bonding or to care for a sick family member.  That paid leave is funded by the employee who is taking the leave, through regular payroll contributions to the California State Disability Insurance (“SDI”) program.  The new ordinance requires covered San Francisco employers to pay the remaining 45% of a covered employee’s wages during the six weeks of paid parental leave.

The law’s effective dates are staggered as follows:

Effective Date

Size of Employer

January 1, 2017

50 or more employees regardless of the employees’ location.

July 1, 2017

35 or more employees regardless of the employees’ location.

January 1, 2018

20 or more employees regardless of the employees’ location.

Covered Employers

In determining the size of a covered employer, the ordinance looks at the size of an employer’s total workforce, regardless of the actual location of the employees.  Accordingly, an employer may be subject to the ordinance even if it does not employ 50 (or 20) employees within the city of San Francisco.

The City and other governmental entities are not covered employers under the ordinance.

Covered Employees

Employees (including part-time and temporary employees) are eligible for the fully paid leave if they meet all of the following criteria:

  • Are employed for at least 180 days prior to the start of the leave;

  • Work at least 8 hours per week in San Francisco;

  • Work at least 40% of their weekly hours in San Francisco; and

  • Are eligible for California Paid Family Leave for baby bonding.

Notably, employee eligibility is based on the number of hours the employee works in San Francisco, regardless of his or her residence and regardless of the employer’s work location.

Union employees are not covered if (1) their collective bargaining agreement expressly waives the requirements under the ordinance in clear and unambiguous terms, or (2) the collective bargaining agreement was entered into before the ordinance’s effective date.

How Much Do Employers Need to Pay?

The new ordinance requires covered employers to pay 45% of the employee’s weekly gross wages, up to a maximum of $924 per week, for six weeks.  This cap is based on the California Paid Family Leave program’s 55% wage replacement provision, which is capped at $1,129 per week.  Between the two programs, covered employees should receive 100% wage replacement for a six-week parental leave, up to a total of $2,053/week.

What if the Employee Works for Multiple Employers?

If the covered employee works for more than one employer, the 45% supplemental compensation amount is apportioned between or among the covered employers based on the percentage of the employee’s total weekly wages received from each employer.  For example, if the employee earns $800 per week from Employer A and $200 per week from Employer B for a combined total of $1,000, Employer A pays 80% of the supplemental compensation and Employer B pays 20% of the supplemental compensation.

Can the Employer Require the Use of Vacation?

An employer can require employees to use up to two weeks of unused, accrued vacation to help meet the employer’s obligation under the ordinance.  This vacation time can be counted toward the six-week paid parental leave period.

Anti-Discrimination/Retaliation Provision

Employers may not interfere with, discriminate, or retaliate against employees for exercising their rights under the ordinance.  Terminating a covered employee within 90 days of their request or application for California Paid Family Leave, or taking adverse action against an employee within 90 days of their filing a complaint based on the new ordinance, will raise a rebuttable presumption that such action was taken to avoid the employer’s obligations under the law.

Notice and Posting

Employers will be required to post in a conspicuous place, at any workplace where a covered employee works, a notice informing employees of their rights under the ordinance.  The notice must be in English, Spanish, Chinese, and any other language spoken by at least 5% of the employees at the workplace or job site.

Employer Records

Employers must retain for three years records documenting the supplemental compensation paid to its employees, and make the records available to San Francisco’s Office of Labor Standards Enforcement (“OLSE”) upon request.  Failure to do so will raise a rebuttable presumption that the employer has violated the ordinance.

Damages and Penalties for Violations

The ordinance provides for remedies through the OLSE and through the courts.  The OLSE or “a person or entity acting on behalf of the public as provided for under applicable state law” may bring a civil action in court for alleged violations of the ordinance.

If the OLSE (after an administrative hearing) or court determines that the employer has violated the ordinance, the employer may be required to pay:

  • the total supplemental compensation withheld,

  • penalties to the employee of $250 or three times the amount of supplemental compensation withheld (whichever is greater),

  • penalties of $50 per day to each employee whose rights were deemed violated (e.g., in the instance of a failure to post a notice, this may be several employees per workday),

  • interest, and

  • in the event of a lawsuit, the plaintiff’s attorneys’ fees and costs.

Courts may also provide injunctive relief.  In addition, the OLSE may require the employer to pay the City penalties of $50 per day per “employee or person as to whom the violation occurred or continued.”

Takeaways

Paid leave is an area gaining increasing attention from state and local governments.  San Francisco’s new law comes on the heels of New York state’s enactment of a new paid family leave law and California’s Assembly Bill No. 908 which, beginning in 2018, will raise California’s current family leave pay rate from 55% to 60% or 70% depending on the employee’s wage rate.  The U.S. Department of Labor has also set requirements for federal contractors to provide their employees with paid sick leave.

While San Francisco has gone farther than any other jurisdiction in what it requires employers to provide to new parents, employers should expect similar legislation in more jurisdictions across the U.S. in the years to come.

Employers with employees who work in San Francisco are highly encouraged to review the new ordinance carefully and to consult with an employment attorney to begin exploring what steps they may need to take now to ensure they are able to comply with the law upon its enactment.

We will continue to monitor the increasing and various city, state, and federal laws surrounding paid leave and provide additional analysis and guidance on compliance.

Copyright © 2016, Sheppard Mullin Richter & Hampton LLP.

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

  • First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.

  • Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.

  • Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

© 2016 Proskauer Rose LLP.

Dane County Judge: Wisconsin’s “Right to Work” law unconstitutional

wisconsin supreme courtIn a decision issued April 8, 2016, Dane County Circuit Court Judge William Foust ruled that Wisconsin’s “Right to Work” law violates the Wisconsin Constitution because it takes union property without just compensation (i.e., it is an unlawful taking).

According to the Wisconsin Manufacturers & Commerce (WMC), which played a leading role in seeking and attaining passage of the law, Judge Foust’s decision “is an act of blatant judicial activism that will not withstand appellate review.” Wisconsin Attorney General Brad Schimel also issued a statement expressing disappointment in the ruling and stating that he is “confident the law will be upheld on appeal.”

Judge Foust ruled that the law unconstitutionally takes union property by forcing a union to represent workers who are not members of the union and do not pay dues to the union. Judge Foust found the State’s argument that “neither federal law nor state law requires a union or other entity to become an exclusive bargaining representative” to be “disingenuous.” According to Judge Foust, the unions have no choice in representing all employees because, by law, their existence depends upon being the exclusive bargaining agent for any particular bargaining unit.

A copy of Judge Foust’s order is available here.

Article by: Rufino Gaytán of Godfrey & Kahn S.C.
Copyright © 2016 Godfrey & Kahn S.C.

The Future of Law Firm Marketing with Deloitte CMO Diana O’Brien [PODCAST]

In this podcast interview, John McDougall of McDougall Interactive and legalmarketingreview.com and Nicole Minnis of The National Law Review speak with LMA keynote speaker Diana O’Brien about her role as CMO of Deloitte, the future of law firm marketing, marketing technology, and the challenges that law firms face with traditional and digital marketing.

John McDougall: Hi, I’m John McDougall, CEO of McDougall Interactive, and I’m here today with Nicole Minnis, Lead Publications Manager at the National Law Review. And our guest is Diana O’Brien, the Chief Marketing Officer of Deloitte. Diana will be the Keynote Speaker at the upcoming Legal Marketing Association annual conference on April 11th – 13th, in Austin, Texas. Welcome, Nicole and Diana.

Nicole Minnis: Thanks John, hi, and hello to you, Diana, as well.

Diana O’Brien: Thanks John and Nicole, it’s great to be here today.

John: Absolutely, and Diana, thanks for taking the time. You are a fairly new CMO, and I know that you came to this role from a non-marketing background — given that, what inspired you to take this new role as CMO of Deloitte?

Diana: Well “inspired” is the right word. First, my passion was really clients. I’ve spent 30 years in client service. That’s really where I learned to listen to clients, and respond, and react to what it is that they needed, and that was really the impetus to me appreciating and becoming, I think, a champion for clients within our firm. So today being the Deloitte CMO, I’m really the champion for all of our clients, and I’m responsible for helping out stake-holders within the firm whether they be our newest associates to our partners, be responsible for listening and understanding the collective needs of all of our clients and creating an environment where our clients get every day, in every interaction, a world-class experience in every touchpoint. So the client experience is something that I’m just deeply passionate about.

The second thing I sort of married up with that is I had the chance, after having that career, to take on a responsibility of being the Managing Director of Deloitte University – which is our learning center in Texas – and that’s where I came to appreciate and recognize that the world has changed. What worked yesterday doesn’t work tomorrow. We need to create environments where people can thrive, and grow, and continue to evolve, and I had the chance to do that for all of the learning. But, really, the same is so true for marketing today. We’re moving from this world where you could just push out this sort of one-way message where you were communicating what you wanted to communicate and push it out there and hope people heard it, to this more interactive, 24/7, broader business connection, and creating an environment where your clients thrive and you’re part of that active engagement. So it’s not really a back office anymore, it’s right front and center with the clients, and it’s a new capability that you need in order to do that.

So when you marry those two things up, it was a perfect choice for me and I was excited to take it on.

John: Yes, it sounds like empathy and inspiration.

Diana: Yes.

John: And what’s your mandate as CMO?

Diana: It’s really simple. It’s really to drive growth for the firm; it really couldn’t be any more simple than that. What I would say that maybe would resonate, I think, for a lot of marketers is that it does still start with the Deloitte purpose, and I do think that you don’t grow unless you’re grounded in your purpose. So, a good CMO is always going to know what that is and be able to inspire all their professionals to link back to that. So, the Deloitte purpose is to make an impact that matters with our clients, our people, our communities. So, when I think about what my job is and I think about the 70,000 professionals that work at Deloitte, I need all of them every day to go out and strengthen our brand to grow the firm by showing up to our clients in a consistent but personalized way that creates strong relationships, that builds powerful experiences, delivers unique insights that helps our professionals and our clients establish the kind of connection that is sustainable over time so we can really help as problems and issues go over time.

Changes to the Marketing Organization at Deloitte

John: And what changes have you made to the marketing organization in order to execute on that mandate?

Diana: Gosh, I’ve been busy with that.

John:  Quite a few.

Diana: We’ve streamlined a lot. We have really focused on optimizing the resources but we’ve been driving towards a new model. What’s interesting about Deloitte in this regard – and I don’t know that everyone’s appraised this quite yet but – we encompass, obviously, the most traditional elements, which is the communications and marketing capabilities, but all of the go-to market assets, if you will, sit under me as well. So, our go-to market channels [including our managing partners in key markets, our client leaders and our industry practice leaders] and thought leadership, public policy, corporate citizenship, they have been put under me as well and so that’s unique and actually I’m hearing some of that. I’ve met with a few other CMOs that are doing some of the same things and have had some of the same responsibilities, and so what I like about it is that it’s really this combined essence of, really, how does the market — How do you drive growth? How do you really develop a marketplace?

The other thing we think is really important is digital. Obviously we have a strong digital practice and that serves our clients, but it also serves our in-house marketing team and that’s key to us being able to deliver our brand every day and create those kinds of experiences that we were talking about and deliver those insights. So I work very closely with the consultative arm of our Deloitte digital practice.

John: That’s a lot of stuff going on. That’s fantastic. Go ahead, Nicole.

The Future of Law Firm Marketing

Nicole: Shifting gears slightly and thinking about our legal marketing listeners more specifically, what do you see on the horizon in terms of transformation or potential paradigm shifts for law firm marketing?

Diana: It’s so interesting, Nicole, I think in many ways. Professional services, accounting, and consultancies like our firm and law firms, have some real similarities in this regard. I think digital marketing is going to continue to grow and that’s really for all of us, it’s not just legal markers. But we need to face it in a way that maybe some others don’t have the same issues, partly because we come from professionals where we’re highly skeptical. That’s just our profession, so we have to maybe be a bit more willing to get into the data around the success of digital and how that may in fact change us and work to be a better adopter of it. With some of the increased competition that’s there, I think if we don’t do that, the professional services environment has some challenges to stay ahead of the game, and that’s particularly going to be the case, I think, with talent. That’s going to be one of the big challenges if we don’t address that.

Certainly social media, obviously law firms are doing things in social media, but I think it will continue to be a big focus. It certainly has been for us. We have worked to become more engaged and use more outside platforms – and my own micro-site is an example – to sort of meet people where they are. We use LinkedIn more than we’ve ever used before to help us connect into the marketplace.  We’ve all got to figure out how to have our sites optimized for mobile so content can be more easily consumed. And again, when you come from a place where maybe adaptability is a little lower and skepticism is a bit higher, the mindset of professional services firms where we do have some of that, we have to work harder I think to embrace some of those things.

Marketing Technology

Nicole: It sounds to me like Deloitte is way ahead of the curve in terms of digital technology so I commend you and your firm on those efforts. What marketing technology do you see is getting the most buzz right now besides some of the things that you’re already working on?

Diana: It’s a good question. I have two things I want to say on this, one social listening is obviously incredibly important in content management systems or continuing to evolve publishing platforms, and it’s important that we stay thoughtful of that, but the number of channels that you now have to participate in is exhaustive, and it’s just growing, and I think it’s important that we not become sort of overwhelmed with the technology, but really solve specific business problems. One of the things I think that law firms can do is I think it’s important that they continue to differentiate themselves with eminence, and thought leadership, and specific things that you can differentiate yourself on. And one of the things I think that are particularly useful are – maybe not as technology-buzzing, if you will – but blogs and podcasts. I think they’re low-cost communication tools that really are a more direct engagement, and can connect more easily sometimes with the targeted audience that you want with the specialized information that you have.

Sometimes I think we can become sort of enamored with the technology. When I first took on I felt like, maybe the first four months, I was a bit enamored with the technology, but I kept coming back to, “Well, what problem am I really trying to solve for that’s going to drive my business?” While I think there are some interesting things out there that we all need to be aware of, I think it’s important to keep coming back to, “What problem am I solving?”

Marketing and Thought Leadership

John: As a follow-up to that, I love hearing you talk about thought leadership. I own a site, authoritymarketing.com, and we do a lot of work around the idea that your experts and your thought leaders, especially in professional services, will help propel your blogging, and podcasting, and marketing, and SEO, and social media. Would you say that those blogs and podcasts can also then be used by your sales people in business development, and is it kind of streamlining your efforts or killing two birds with one stone by doing both of those things at once? Not just doing the blogs and podcasts for their own right for their search in social benefits and all of that, but to also potentially use for biz dev?

Diana: Yes, there’s no question, and actually we did something interesting this last year. We actually did an active online course on a couple key topics that we felt we were expert in, and what I feel happened as a result of that is the level of engagement that we were able to achieve. It’s actually really a form of marketing in today’s world which is more interactive. It isn’t this push of a message. It’s this engagement where, let’s say you put a blog out there, someone comments back. In [this case], people are commenting on the course. People are exchanging ideas over the content. So you’re evolving it and working it together. That’s the new world. That’s the new model. It isn’t something that is just, “Here’s my ideas and here they are.” It’s a dialogue and exchange that ultimately is more productive for everyone.

The Biggest Challenges for Law Firm Marketers

John: Absolutely, and what about specifically for law firms, what are the biggest challenges for law firm marketers?

Diana: I think, similarly, something similar that we have is how do you keep differentiating yourself in a saturated market? How do you promote your brand? How do you continually evolve, and innovate, and show that you’re uniquely qualified over someone else? Obviously eminence is one way to do that. Engaging is certainly a way. Thinking beyond law firms and professional services firms like Deloitte have, in the past, always charged – for example – by the hour, and that’s just been a mindset that’s gone in. Starting to think more about, “What’s the real value we’re bringing in?” Thinking of ways in which you can differentiate yourself. I think the marketer has a role now to play in helping to shape the thinking around that.

It isn’t just the message. It’s really the mindset of the organization. It’s the type of strategies and tactics that you will use, such as what we were just talking about in thought leadership. It’s how you create the client experience end-to-end, how you think about all the customer decision-making, how the customer feels at all those points that the marketer plays a role in. I think they have a really unique place to influence the many stake-holders, the many lawyers that are in the organization and how they show up at their clients.

But I think even more importantly than that is the future of where their talent is going to come from. I mentioned it before, but we did a study that was a digital study, we did it with MIT Sloan Management, and what we found was across all these age groups that, primarily, talent is really looking for organizations that are technically capable and receptive to employees being able to be digitally sophisticated. And we found that in many cases companies are not nearly as mature as the upcoming workforce and current workforce wants to be, and so that’s a challenge so we have to deal with that.

Conveying the Value of Marketing to Management

John: Yes, absolutely, especially younger people, and not just very young people, certainly into the 30s, and 40s, and above, but a lot of people are just so attuned to social media these days and searching on their mobile phones so if your organization is lagging in that it doesn’t inspire them. I often hear legal marketers complain how hard it is to convey the value of what they do to the management of their firms; do you have any advice for them?

Diana: I think this is something relatively new for CMOs, personally. I don’t, in my consultative time with clients, I think CMOs often didn’t really find their way into the C-suite, and I think that has changed. This is now a real opportunity to affect the C-suite.

I think the CMO had a chance to connect with the CFO about the metrics that drive sales. I think they are instrumental with working with the Chief Talent Officer about how to empower their employees to be better brand ambassadors, to reflect the culture in their business. I think they need to work with the CIO on any new technologies that might be touching the customer or extracting customer insight within the organization. So now they are really up here and I don’t think that was the case before. So they have a chance to change the perception of marketing and that’s new and it’s really a great kind to build new relationships and I think the advice I would have is not to underestimate the power that you have right now to influence and build key relationships with their peers, to have a sit at the table, to take your seat at the table and translate the customer experience, and bringing the customer championship into business results.

John: Yeah and as you said that earlier, really tying that up into your core mandate, your core value proposition and mission statement and making sure that marketing especially things like in the past, SEO or certain things were easy to kind of push a button and they would happen over on the side. Now they need to be much more integrated, right?

Diana: Yes and I think people consider those tactics. They thought, “Oh, well, just go do that.” Now it is an embedded part of the strategy and you can’t really have an organizational strategy without understanding how the marketing message is linking to that and how you are making them come to life in every element of the customer experience.

Content Marketing

John: Do you think content marketing has really driven a lot of that because if you could do digital marketing in the past, it was a little bit of a fairy dust, you know. You could kind of just sprinkle it on. Now you can’t just do that. You have to really develop content that has to reflect the brand or fail, right?

Diana: Yes. I said one time in a talk, and I thought I’d share it even at the conference, but I used to think of marketing as sort of a little m where it was about this message that you pushed out. And now it’s so much more. It’s really about the big M. It’s about the meaning.

John: Right.

Diana: And you are exactly right. That comes from the content that’s really there and it has to be rich.

John: Yes. And the CEO, the CFO, they should take an interest, and I think they are, more so than ever.

Diana: I do too. I do too.

John: What are you up to these days and how can listeners connect with you online?

Diana: Well, I have been pretty busy with the new role but what I have done most recently, I just left Deloitte University, which is a home to me every time I am there but we just had about a thousand of our folks there that sit in our market development organization that had spent two days thinking about, with a number of guest speakers, thinking about how are we going to continue to create the right connections and gain the right knowledge and to think about the right technologies to keep moving our organization forward.

We don’t have, you know — we’re big and it’s hard always to get people together and I’m glad we made that investment. It’s not always easy to do but it’s important when we do to make the most of it, and I think we did. So I was thrilled to be able to have our people together and I encourage, even when you know, with all the options to do things socially and online and virtually, sometimes being in person is the best way to really further that bond. So I was glad to do that.

So connecting with me, obviously please check out our website, first cmo.deloitte.com where you will get lots of relevant content that’s perfectly relevant to the CMO and I hope everybody goes there. My twitter handle is @DianaMOBrien and I welcome anyone and I’d like to have an exchange with anybody, and then certainly deloitte.com. We welcome anybody to visit us there for our eminence.

John: Absolutely, well thanks for talking to us today and thanks for listening everyone to the National Law Review podcast. Visit the National Law Review website at natlawreview.com and for more information about the Legal Marketing Association’s annual conference, visit legalmarketing.org/annual_conference. I’m John McDougall and thanks for listening.

© 2016 The National Law Review

Seven Strategies to Succeed at Law Firm Leadership

The title “managing partner” falls short of the mark in describing the work of a law firm leader. “Chief executive officer,” in my opinion, is more accurate. Terminology evolves so that some titles no longer reflect their original meaning.

Managing partner has become such a term. When a managing partner is named, is the law firm really appointing a manager in the corporate sense? A manager, after all, is a caretaker responsible for oversight of a unit or department.

A recent survey on the topic of law firm management and leadership asked those polled to distinguish between a “manager” and a “leader.” Insights that the survey respondents offered included, “Management is mechanical, while leadership is inspirational,” and “The leader sets the direction and the plan, while the manager implements the plan.”

Another survey respondent was more pointed: “Managers implement what leaders want them to do. Most law firm managers want to be loved and not to lead.” Saying that managers want most to be loved may overstate the case. But it does sum up the problem. If a law firm needs vision, inspiration, motivation, cohesion, consensus, direction-setting and the establishing of firmwide goals, it needs strong leadership committed to that work.

Leading Lawyers 

The hard realities of law firm leadership are apparent. Among them:

  • The authority of lawyer management (or leadership) is derived from the willingness of the firm’s partners to be managed (or led).
  • Partners perceive themselves as being owners of the firm, having certain prerogatives and independence, not as employees to be managed.
  • Each firm has its own personality and culture, and the management techniques effective in one firm may or may not be successful in another.

In the face of these hard realities, many managing partners retreat into the noncontroversial confines of day-to-day management, putting aside attempts to exercise true leadership. What is needed instead is a well-thought-out plan to lead your firm forward into the 21st century.

SEVEN STEPS TO SUCCESSFUL LEADERSHIP

1. Create Job Descriptions for Yourself, Your Successor and Other Firm Leaders.

Remember, you’re drafting a job description for a CEO, not a manager. Think of your job description as a contract with your partners. At a minimum, it should delineate the amount of time you will devote to management responsibilities. A CEO’s primary responsibilities should include strategic planning, setting the future direction of the firm, cultivating relationships with major clients, and identifying and grooming future firm leaders. To compensate for time lost from your personal practice, the job description should define your pay structure.

2. Redefine the Role of Practice Group Chair.

Practice group chairs are too often treated as lions among their prides. Often they are appointed because they are the senior member of the group or the most effective rainmaker. This does not mean they are the most effective manager, the best mentor or the most committed to the success of the firm. Practice group chairs should be elevated to the level of senior management. They should be given the full authority to manage their groups. Practice group leaders need to be chosen based on the ability and the commitment to lead.

3. Get to Know the Firm’s Client Base Personally.

No partner should “own” a key institutional client. Managing partners should reach out to client contacts and underscore the message that the firm—not only the client’s chosen counsel—is pleased to be of service. Ask the client for feedback, learn the client’s business and the industry, and strategize to help the client reach its goals. Do more for the firm’s clients than simply putting out fires.

4. Identify and Hire a Strong Chief Operating Officer.

If you are going to be an effective leader or CEO, you have to get the minutiae off your desk. Delegate day-to-day administrative responsibility to a strong, competent executive director or COO. This person should head up a team of business professionals and serve as your trusted “second hand” on the leadership team.

5. Offer Reforms to “Time and Money” Matters.

You will be asking senior management to take on a more extensive and defined role in the operations of the firm. Adjust the time demands on the executive committee and the practice group leaders to allow for sufficient nonbillable time for them to fulfill their management responsibilities. Likewise, adjust the compensation criteria for senior managers to acknowledge the time they must devote to management matters and for the firm-benefitting results that they achieve.

6. Start (or Reenergize) the Strategic Planning Process.

A strategic plan is a living document that requires modification and fine-tuning from the first day it is implemented. If you have been selected as the firm’s managing partner, presumably you have a vision of what you want the firm to become, what you want it to achieve. Sell this vision and muster a supporting coalition among the equity partners. You don’t need to win them all over, but you will need an effective critical mass and working majority. With this group at your back, start small and keep the initial goals simple. Suggest three or four one-year priority items with sufficient low-hanging fruit to show short-term wins. Consolidate your gains and move forward.

7. Maintain Your Firm’s Investment in Its Future.

The challenges of launching new initiatives, creating consensus and moving your firm forward can sometimes cause a firm leader to forget about the little things that, in the end, may prove to be just as important as greater goals. Don’t forget to implement a first-rate training and associate development program. Here lies the future of your firm. Don’t forget about marketing and business development initiatives. These provide the growth that will finance your firm’s future. Don’t forget about technology upgrades. These are the essential tools that keep your firm on the cutting edge and ahead of the pack. And don’t ignore your successor. Heirs apparent need the opportunity to learn the principles of law firm management.

The old Chinese proverb says that a journey of 1,000 miles begins with a single step. Becoming a leader of a law firm is similar. A CEO must, step by step, patiently bring along the uninterested, the doubters and the curmudgeons to join the advocates and the reformers. Bold vision and small steps are the stuff of leadership.

Copyright 2016 The Remsen Group

Fiduciary Risk in Data Privacy and Cybersecurity? You Bet!

Health plan administrators are (or certainly should be) well-versed in their obligations under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH). Failure to secure protected health information (PHI) from disclosure can result in civil monetary penalties of up to $1.5 million and potential criminal penalties of up to 10 years’ imprisonment. Penalties of this size have the tendency to get people’s attention. But, if you are a retirement plan fiduciary or administrator (which likely includes officers and other senior-level executives at a company), are you aware of your obligations to protect sensitive data and other personal information in your control and the control of your vendors?

Retirement plans store extensive personal data on each participant and beneficiary. This data ranges from Social Security numbers and addresses to dates of birth, bank account and financial information, and other records and is stored physically and in electronic forms for years, if not decades. The term often used for this type of information is “personal identifiable information” (PII). While stored, numerous human resources and benefits department personnel, participants, beneficiaries, recordkeepers, trustees, consultants, and other vendors have access to some or all of this highly sensitive information. The extensive trove of PII presents an attractive, and often undersecured and easily exploitable, opportunity for criminals intent on stealing identities or on the outright theft of plan assets and benefit payments.

Federal laws similar to HIPAA but applicable to retirement plans have not (yet) been enacted. However, this does not mean that retirement plan fiduciaries and administrators are off the hook. Under the Employee Retirement Income Security Act of 1974 (ERISA), as amended, a fiduciary is required to discharge his or her duties solely in the interests of plan participants and beneficiaries, and, in doing so, must adhere to a standard of care frequently described as the “prudent expert” standard. Under this standard, it is not difficult to conclude that a retirement plan fiduciary who does not take certain precautions with regard to the protection of PII may be in breach of his or her fiduciary duty. And, although a breach of an ERISA fiduciary duty does not trigger clear statutory penalties like those applicable under HIPAA and HITECH, under ERISA, fiduciaries are personally liable for their fiduciary breaches.

So, what precautions should retirement plan fiduciaries take to help ensure that they have fulfilled their fiduciary duties with respect to data privacy and cybersecurity? What should a fiduciary do in the event of a data privacy or cybersecurity breach? Presently, 47 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have enacted some form of breach notification law, and it is unsettled whether these breach notification laws are preempted by ERISA.

Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Lawsuit Challenges FDA Approval of Genetically Engineered Salmon

BullmonLast November, we posted that the Food and Drug Administration (FDA) had approved a genetically engineered (GE) salmon: AquaBounty Techonologies’ AquAdvantage Salmon. This approval marked the first time that the FDA authorized selling a genetically engineered animal for human consumption.

Immediate backlash followed the FDA’s November 19, 2015 announcement from environmental and consumer advocacy groups. On March 31, 2016, environmental and food safety groups, as well as fisherman trade associations, sued the FDA and related agencies in federal court in California. The suit seeks to reverse the FDA’s approval of the fish for human consumption.

The complaint alleges that the FDA failed in its statutory duty to take a “hard look” at how GE salmon will impact the environment. The plaintiffs warn that the FDA did not appreciate the risk that the farmed salmon would inevitably escape, “interbreed with wild endangered salmon, compete with them for food and space, or pass on infectious disease . . . .”

The plaintiffs also take aim at the FDA’s authority to regulate GE animals under the Federal Food, Drug, and Cosmetic Act (FFDCA), arguing that, back in 1938, Congress did not expect the FDA to regulate genetically engineered animals for human consumption: “GE animals present enormously different risks and impacts than drugs, requiring different expertise, analyses, and regulation than were contemplated when Congress enacted the FFDCA.”

Whether additional lawsuits will follow this one remains to be seen. In our November post, we predicted that consumers could sue to challenge the labeling of the GE fish. Although the FDA initially determined that AquaBounty would not need to label its salmon as GE, a provision in December’s 2016 Omnibus Appropriations Bill required the FDA to ban GE salmon imports until it published labeling guidelines for the fish. In February, the FDA issued that ban and announced its plans to establish labeling guidelines.

Even if AquaBounty puts FDA-approved labeling on its product, consumers still may sue under failure to warn and related legal theories. The food industry has had some success defending state law food labeling claims based on federal preemption. But the federal Nutrition Labeling and Education Act exempts claims based on the adequacy of safety warnings unless the FDA has actually considered a risk and determined that no warning is necessary. So, the key question in any consumer personal injury suit involving GE salmon likely will be whether the FDA considered the risk of the alleged harm in implementing its new labeling guidelines.

© 2016 Schiff Hardin LLP

U.S. Air Force Testing BioBased Vehicle Oil Created From Canola Seed, Soybean, And Synthetic Petroleum

OilOn March 22, 2016, a team visited Malmstrom Air Force Base to test a new biobased synthetic oil in the base’s vehicles. The testing is sponsored by the Defense Logistics Agency (DLA) and the Office of the Secretary of Defense, with four bases chosen to use the plant based synthetic oil in vehicles. The Department of Homeland Security’s Law Enforcement Training Center has also begun testing the oil and will be monitoring the impacts on vehicle performance and engine quality over the next 12-18 months. George Handy, the project manager, stated that the use of biobased oil is not expected to result in “any change in the performance of any of the vehicles because they are already running on synthetic fuels.” If the testing goes well, the biobased oil will be available to purchase through normal channels, improving national security through the use of a domestically produced sustainable product.

©2016 Bergeson & Campbell, P.C.

DOJ Issues New FCPA Guidance and Launches Self-Reporting Pilot Program

The US Department of Justice has announced the creation of a one-year pilot program intended to encourage companies to self-report bribery violations and provide extensive cooperation in exchange for reduced penalties, ranging from reductions in fines to declinations.

On April 5, the Fraud Section of the US Department of Justice (DOJ) issued its “Foreign Corrupt Practices Act Enforcement Plan and Guidance” (Guidance) outlining the following “three steps in [its] enhanced FCPA enforcement strategy”:

  1. The intensification of its investigative and prosecutorial efforts by substantially increasing its FCPA law enforcement resources.

  2. The strengthening of its coordination with foreign law enforcement.

  3. Its implementation of an “FCPA enforcement pilot program” to encourage voluntary disclosure, cooperation, and remediation.[1]

While the first two steps have been championed in prior DOJ press releases and speeches, the third step—the creation of the FCPA enforcement pilot program—is an important development that has the potential to change the voluntarily disclosure calculus in connection with FCPA matters.

The Guidance applies “to organizations that voluntarily self-disclose or cooperate in FCPA matters during the pilot period, even if the pilot thereafter expires.”[2]

Intensification of DOJ’s Investigative and Prosecutorial Efforts

The Fraud Section plans to more than double the size of its FCPA Unit by “adding 10 more prosecutors to its ranks”[3]—a staffing goal that was previously announced by Assistant Attorney General for the Criminal Division Leslie Caldwell at an FCPA conference in November 2015.[4] The Guidance also cites the FBI’s establishment of “three new squads of special agents devoted to FCPA investigations and prosecutions,” a hiring initiative that was announced approximately a year ago.

Strengthening of DOJ’s Coordination with Foreign Law Enforcement

The second part of the Guidance builds on previous statements by senior DOJ leaders that they “are greatly aided by our foreign partners”[5] and “it is safe to say [in 2013] that we are cooperating with foreign law enforcement on foreign bribery cases more closely today than at any time in history.”[6]

FCPA Enforcement Pilot Program—Eligibility and Potential Benefits

The most important part of the Guidance is the Fraud Section’s announcement of a one-year “FCPA enforcement pilot program,” which provides for “mitigation credit” that takes into consideration three essential factors: (1) voluntary disclosure, (2) full cooperation, and (3) remediation. In cases in which the above three factors are met but a criminal resolution is nonetheless warranted, “mitigation credit” can include “up to a 50% reduction off the bottom end of the Sentencing Guidelines fine range, if a fine is sought” and the avoidance of a third-party compliance monitor.”[7] Moreover, the Guidance states that, in appropriate cases, where the above factors are fully satisfied, DOJ “will consider a declination of prosecution.”[8]

Voluntary Self-Disclosure

A company must voluntarily disclose an FCPA violation to the Fraud Section in order to be eligible for the full mitigation credit. As a preliminary matter, the disclosure must be truly voluntary—a disclosure that the “company is required to make, by law, agreement, or contract” would not constitute voluntary self-disclosure for purposes of this pilot.[9] Second, the disclosure must occur “prior to an imminent threat of disclosure or government investigation” and be “within a reasonably prompt time after becoming aware of the offense,” with the burden on the discloser to demonstrate timeliness.[10] Finally, the disclosure must include “all relevant facts known to [the company], including all relevant facts about the individuals involved in any FCPA violation.”[11]

DOJ’s voluntary disclosure requirement follows a recent announcement by the US Securities and Exchange Commission (SEC) that companies subject to FCPA enforcement actions are required to self-report their potential misconduct to be eligible for deferred prosecution agreements and non-prosecution agreements. Full Cooperation

The Guidance sets forth nearly a dozen requirements for companies seeking cooperation credit under the pilot program.[12] Those requirements can be distilled into the following four categories:

  • Disclosure of Relevant Facts: Companies are expected to disclose “all facts relevant to the wrongdoing at issue” on a timely basis, including “all facts related to involvement in the criminal activity by the corporation’s officers, employees, or agents” and “all facts relevant to potential criminal conduct by all third-part[ies].” Disclosure is expected to be “proactive” rather than “reactive,” and facts relevant to the investigation should be voluntarily provided “even when [companies are] not specifically asked to do so.” In addition, disclosures are expected to include “all relevant facts gathered during a company’s independent investigation.”

  • Preservation and Disclosure of Documents: All relevant documents—as well as “information related to their provenance”—are expected to be collected, preserved, and disclosed. This expectation extends to “overseas documents” and important details about those records such as their location and the individuals who discovered them. In some cases, prosecutors may insist that companies provide translations of foreign-language documents. Finally, it is expected that companies will assist with the “third-party production of documents . . . from foreign jurisdictions.”

  • Making Individuals Available for Interviews: Upon request, companies are expected to “mak[e] available for [DOJ] interviews those company officers and employees who possess relevant information,” including—where appropriate and possible—individuals located overseas, as well as those who no longer work for the company.

  • Conducting Transparent and Coordinated Internal Investigations: Companies are expected to provide timely updates about their internal investigations and, where requested, ensure that such investigations do not conflict with those being conducted by the government.

The Guidance notes that “cooperation comes in many forms,” and that the Fraud Section “does not expect a small company to conduct as expansive an investigation in as short a period of time as a Fortune 100 company.”[13]

Remediation

The final requirement is that of “timely and appropriate remediation,” and the following items generally will be required in order for companies to receive remediation credit:

  • Implementation of an Effective Compliance Program: While the criteria depend on the size and resources of the organization, the following factors are normally considered:

    • Whether the company has established a “culture of compliance”

    • Whether the company has sufficient compliance resources

    • The quality and experience of the compliance personnel

    • The independence of the compliance function

    • Whether the company’s compliance program has performed an effective risk assessment and tailored the compliance program based on that assessment

    • How a company’s compliance personnel are compensated and promoted

    • Auditing of the program to assure its effectiveness

    • The reporting structure of compliance personnel within the company

  • Discipline of Culpable Employees: It is expected not only that companies discipline culpable employees, but that they have systems that provide for the possibility of disciplining others with oversight of the responsible individuals.

  • Acceptance of Responsibility and Implementation of Reforms: Companies are expected to recognize the seriousness of the misconduct, accept responsibility for it, and implement reforms to identify and reduce the risk of similar violations.[14]

Credit

Where the above conditions are met but a criminal resolution is warranted, the Fraud Section’s FCPA Unit (1) may accord up to a 50% reduction off the “bottom end” of the Sentencing Guidelines fine range, if a fine is sought; and (2) generally should not require appointment of a monitor if a company has, at the time of resolution, implemented an effective compliance program.

Furthermore, where the same conditions are met, the Fraud Section’s FCPA Unit will consider a declination of prosecution. In doing so, prosecutors must balance the importance of encouraging disclosure against the seriousness of the offense. In assessing the seriousness of the offense, prosecutors are to consider the involvement by executive management in the FCPA misconduct, the size of the ill-gotten gains in relation to the overall revenue of the company, a history of noncompliance by the company, and any prior resolutions by the company with DOJ within the past five years.

Finally, if the company cooperates and remediates, but has not voluntarily disclosed, the Fraud Section’s FCPA Unit may provide partial mitigation credit, but will agree to no more than a 25% reduction off the bottom of the Sentencing Guidelines fine range.[15]

Implications

This Guidance comes after what has been a growing perception that voluntary disclosures have slowed significantly due to a lack of transparency, consistency, and clarity as to what the benefits are, if any, to self-disclosing. Whether the pilot program succeeds in encouraging self-disclosures will likely depend on the perception of companies and defense counsel of the fairness and openness of the application of the criteria in the Guidance.


[1] US Dep’t of Justice, Memorandum from Andrew Weissmann titled “The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance” (Apr. 5, 2016) (Guidance)

[2] Guidance at 3.

[3] Id. at 1.

[4] Stephen Dockery, “US Justice Dept. Boosting Foreign Corruption Staff,” Wall Street Journal (Nov. 17, 2015)

[5] US Dep’t of Justice, “Assistant Attorney General Leslie R. Caldwell Speaks at American Conference Institute’s 31st International Conference on the Foreign Corrupt Practices Act” (Nov. 19, 2014)

[6] See id.; see also US Dep’t of Justice, “Acting Assistant Attorney General Mythili Raman Delivers Keynote Address at the Global Anti-Corruption Congress” (June 17, 2013)

[7] Guidance at 8.

[8] Id. at 9.

[9] Id. at 4.

[10] Id.

[11] Id.

[12] Id. at 5-6.

[13] Id. at 6.

[14] Id. at 7-8.

[15] Id. at 8-9.

Is Your LinkedIn Profile Violating Attorney Advertising Rules? Depends.

Linkedin Logo NeonThe vast majority of lawyers have a LinkedIn page. Or if they don’t, their marketing department will make them create one eventually. Some use LinkedIn to build their profile and network, others to promote success, articles and speaking engagements. But is a LinkedIn page lawyer advertising and, if so, what must lawyers do to be sure they are on the right side of the Rules of Professional Conduct?

Rules 7.1 to 7.5 of the Massachusetts Rules of Professional Conduct govern lawyer advertising and solicitation. Some states, like New York, provide very detailed rules about what an advertisement may or may not include (or what it must include), how long it should be retained, etc.  In fact, whereas Mass. R. Prof. C. 7.1 contains only two sentences, its New York counterpart is more than three pages long.

Because of the more specific requirements in New York, an important issue for lawyers there (and other states with similarly detailed attorney advertising rules) is whether their individual profile on LinkedIn constitutes attorney advertising. If it is advertising, the attorney would have to comply with requirements like labeling the content “Attorney Advertising” and preserving a copy (of each iteration) for at least one year.

Last month, the Association of the Bar of the City of New York Committee on Professional Ethics issued a formal opinion that stated that a LinkedIn profile does not constitute attorney advertising unless it meets each of five criteria:

  • It is a communication made by or on behalf of the lawyer;
  • The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  • The LinkedIn content relates to the legal services offered by the lawyer;
  • The LinkedIn content is intended to be viewed by potential new clients; and
  • The LinkedIn content does not fall within any recognized exception to the definition of attorney advertising. Formal Opinion 2015-7.

The NYC Committee report noted that it had come to a different conclusion that the Professional Ethics Committee of the New York County Lawyer’s Association (“NYCLA”), which had concluded in March 2015 that “[a] LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising[, but] [i]f an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.”NYCLA Ethics Op. 748 (2015).

For practitioners in Massachusetts, the New York debate may be academic. There is no question that Massachusetts lawyers may advertise on the internet. See Mass. R. Prof. C. 7.2(a) (“Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.”). And, even if an attorney’s LinkedIn profile were considered to be “advertising” in Massachusetts, the only requirement that the lawyer must comply with is the same requirement that runs through all of the Rules of Professional Conduct: honesty. See Mass. R. Prof. C. 7.1 (“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”). But this, of course, is the norm in all facets of legal practice. See, e.g., Mass. R. Prof. C. Preamble, 2.1, 3.3, 3.9, 4.1, 8.2, 8.4.

Thus, at least here in the Commonwealth, a lawyer who scrupulously insures that his or her LinkedIn profile is truthful and not at all false or misleading – including with respect to statements that the attorney is a “specialist” or “certified” in a particular field of law, see Mass. R. Prof. C. 7.4 – is within the bounds of our governing Rules.

© 2016 SHERIN AND LODGEN LLP

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