Top Legal Industry News November 2021: Law Firm Pro Bono, Innovation & Hiring

Happy November! Read on for the latest updates in law firm moves, pro bono and awards:

Law Firm Professionals on the Move

Beveridge and Diamond welcomed Alyse Constantinide to their Environmental Crimes Defense and Internal Investigations practice in Washington, DC. Ms. Constantinide is a former Deputy Chief at the US Attorney’s Office for the District of Columbia, and she serves as counsel on high-stakes compliance and enforcement matters, as well as white collar litigation and internal investigations.

“We are delighted that Alyse chose B&D for the next phase of her already impressive career and to help expand our significant capabilities in the area of environmental crimes defense. Alyse joins a distinguished group of former senior U.S. and state government officials who now call B&D home,” said Kathy Szmuszkovicz, Beveridge and Diamond’s Managing Principal.

Joseph Rillota joined Miller & Chevalier Chartered as a Member of the firm in their Litigation practice. Mr. Rillota was a former trial attorney at the Tax Division of the Department of Justice (DOJ) as well as an investigator for the Internal Revenue Service (IRS) and represented clients in civil litigation at the U.S. Tax Court in a variety of tax-related matters.

“Miller & Chevalier is well-known for providing unmatched counsel based on its members’ distinct combination of federal government and private sector experience, and I look forward to guiding clients through the most complex legal issues. I am excited to be an immediate contributor to the firm’s dedication to collaboration and exemplary client service,” said Mr. Rillota.

“Joe is a highly respected practitioner, whose exemplary reputation in both civil and criminal litigation make him a terrific addition to our team. His deep knowledge extends to several of the firms’ core practices, including tax, white collar, and international, and he will greatly benefit our clients and colleagues,” said Kathryn Cameron Atkinson, Chair of Miller & Chevalier.

Foley and Lardner LLP promoted Christopher McKenna to serve as Managing Partner of its Boston office, and Anne Sekel as Managing Partner of its New York office. Both assumed their roles November 1, 2021. Mr. McKenna practices in the areas of intellectual property and serves as counsel to technology companies to help protect their assets. Ms. Sekel represents clients in all phases of labor and employment-related matters, and she also serves as the Litigation Chair of Foley’s New York office.

“On behalf of the firm, we are delighted that Chris and Anne have accepted the roles as office managing partners. Chris has been at Foley for 11 years and has successfully demonstrated his leadership ability in various roles throughout his career here. Anne started with Foley as an associate 15 years ago and has stood out as an exceptional leader both at the firm and in the community. I am confident that both Chris and Anne will serve the firm well in their new roles. We are also extremely grateful to Susan and Peter for their years of dedication and commitment to serving the firm,” said Jay Rothman, Foley Chairman and CEO.

“I’m honored to take on this new leadership role as office managing partner and build on the solid and successful foundation that Susan, my partners, and associates have laid to strengthen Foley’s national platform in Boston. I look forward to further formulating and implementing the firm’s strategy to expand Foley’s presence in the market and best serve clients in the city’s prospering industries and businesses, as well as continuing our longstanding tradition of giving back to our community,” said Mr. McKenna.

“The talent we have in New York is remarkable. I feel privileged to have the opportunity to lead our office and continue our dedication to professional excellence and first-rate client service. As a steward of the office, I also want to preserve and foster the wonderful culture of both collaboration and individualism that Peter and our colleagues have carefully cultivated here. I’m eager to grow the New York office consistent with our firm’s strategic goals and to strengthen our connections with the firm’s local community, including through our partnership with the Boys & Girls Clubs of America,” remarked Ms. Sekel.

Barnes and Thornburg announced that their new Managing Partner, Andrew J. Detherage will assume his role in November of 2022, taking over for Robert. T. Grand, who served as the firm’s managing partner for the last seven years. Mr. Detherage joined Barnes and Thornburg in 1990, and he currently serves as the Chair of the firm’s Strategic Planning Committee, and Co-Chair of the Insurance Recovery and Counseling Practice. Mr. Detherage also aided in opening multiple firm locations for Barnes and Thornburg in recent years.

“I am humbled and honored to be elected as Barnes & Thornburg’s next firm managing partner and look forward to continuing to work closely with Bob, the Management Committee and the Strategic Planning Committee over the next year. Bob’s leadership has marked an extraordinary period of growth and prosperity for the firm, and I couldn’t be more excited to continue on that path while doubling down on our commitment to our lawyer-focused culture, DEI, and delivering exceptional client service,” said Mr. Detherage

“Having known and worked side by side with Andy during most of my career, I am confident that the future leadership of Barnes & Thornburg is in excellent hands. He cares immensely about this firm and all of its people, and he will be a passionate and thoughtful steward for the organization as we embark on the next chapter of our progress and development,” said Mr. Grand.

Law Firm Pro Bono & Legal Industry Recognition

Proskauer Rose LLP’s William G. Fassuliotis recently received the 2021 Outstanding Pro Bono Service Award from the New York City Bar Justice Center’s Veterans Assistance Project. An associate in the firm’s Litigation Department, Mr. Fassuliotis has an ongoing pro bono practice, where he provides legal services for disabled veterans.

“The claims process is supposed to be non-adversarial, but too often that concept is lost in the slow and difficult system disabled veterans have to endure to receive the benefits they are entitled to under the law,” writes Mr. Fassuliotis in a blog post. “Individuals who have sacrificed so much to serve all of us deserve a better system.”

Kurt M. Denk, Executive Director of the City Bar Justice Center, said of the award, “We are extremely proud of this year’s recipients of our Outstanding Pro Bono Service Award. Our volunteers have demonstrated an exceptional commitment to providing life-changing legal assistance to our clients as they continue navigating the effects of the pandemic – a crisis that has taken a serious toll on those already experiencing socioeconomic and systemic barriers.”

The Greater Chicago Legal Clinic (GCLC) named King & Spalding its 2021 Charles J. O’ Laughlin Memorial Award recipient at its A Justice Social event on November 4. The GCLC recognized King & Spalding for its “exceptional commitment to providing pro bono legal services to members of marginalized communities in Chicago and across Illinois.”

GCLC specifically recognized King & Spalding’s trial team’s victory in a case that has significance for transgender prisoners in Illinois. The firm represented a former Illinois inmate in a civil action seeking damages relating to his confinement.

GCLC also recognized King & Spalding for other pro bono matters representing immigrants, capital defendants, and individuals covered by the Deferred Action for Childhood Arrivals (DACA) program.

The Best Lawyers in America® included 36 attorneys from Allen Matkins Leck Gamble Mallory & Natsis LLP in its 2022 edition.  David Cooke received “Lawyer of the Year” in San Francisco for Environmental Litigation, and Emily Feder is featured on the “Ones to Watch” list. The complete list of attorneys who received recognition can be found here.

Further, Allen Matkins received multiple Tier 1 Rankings in Best Lawyers. At the national level, the firm received awards in Real Estate Law and Environmental Law, Land Use & Zoning Law. At the metropolitan level, the firm received awards for Environmental Law and Real Estate Law in Los Angeles and Environmental Law in San Francisco, among many others.

Managing Intellectual Property named Zack Higbee and Dan O’Connor, senior associates at Alston & Bird LLP  as “2021 Rising Stars”. Mr. Higbee and Mr. O’Connor are both members of the firm’s Intellectual Property practice group and have much experience in patent prosecution, patent solicitation, portfolio management, and IP counseling.

This award is the latest in a series of recognitions for Alston & Bird’s Intellectual Property practice. Previously, Managing Intellectual Property ranked three of the firm’s IP practices at the national level and two at the state level, as well as naming 11  Alston & Bird partners as  “IP Stars” in June of 2021.

Legal Industry Innovation

Thomson Reuters and Deloitte Tax announced an alliance to transform corporate tax and legal departments’ workflow and digital processes. The partnership combines Thomson Rueters’ software and Deloitte’s consulting and technology to assist in-house legal teams with compliance and regulatory matters.

“Now more than ever, digitization is becoming crucial to the effectiveness of tax and legal departments. Through this alliance, we will deliver tailored technology implementation solutions to help position our clients to focus on what they do best — deliver enhanced value in their organizations, leveraging robust data for decision-making and cost control, backed by the unmatched global breadth and depth of Deloitte and Thomson Reuters,” said Steve Kimble, chairman and CEO, Deloitte Tax LLP.

The partnership is for firms needing to digitize their existing systems, especially in the current regulatory environment that requires digital transformation to be a top priority. A recent Deloitte survey found that only 20 percent of legal departments use tools to automate routine tasks.

“We’re thrilled to build on our longstanding relationship with Deloitte through this new alliance,” said Sunil Pandita, president of Corporates at Thomson Reuters. “Thomson Reuters and Deloitte have long worked together to support corporate tax departments as they face great transformation and change, from regulatory developments to digital disruption. We are eager to continue that relationship, as well as add a new focus around the corporate counsel. We continually see in-house tax and legal departments under immense pressure to always be fast and accurate, while combatting constrained resources and an ever-evolving business landscape. This alliance between Thomson Reuters and Deloitte will allow us an opportunity to help our customers solve their biggest pain points through content-driven technology solutions.”

Kennedys law firm announced its virtual work experience program hit 10,000 enrollments in just over a year. The virtual work experience launched last August with the goal of increasing access to legal education. This past year, Kennedys made 27 trainee lawyer offers to those who took the online course, out of the 34 offers it made in total.

Kennedys also launched a series of virtual insight events for prospective applicants, highlighting the firm’s application and recruitment process.

A student who recently attended one of the insight events said “Having attended this event I feel more confident about applying to Kennedys as it strikes me as a firm that not only cares about its culture, community and people, but also excels in its global outreach. I’m looking forward to submitting my application for a training contract in 2023 soon.”

Kennedys hosted its first virtual event in August, with the firm’s Diversity & Inclusion and CSR Managers giving insight into the firm’s global Diversity & Inclusion and CSR initiatives.

Caroline Wilson, HR director at Kennedys, said: “The virtual programme really has levelled the playing field for all applicants for work experience and to be part of the Kennedys family. It has been a fantastic way to open up access to everyone and move on from the traditional on-site work experience. That so many of our new trainees have completed the programme is testament to its success. We are extremely proud that we have had more than 10,000 students enrol on the virtual work experience programme and look forward to welcoming many thousands more from around the world in the future.”

The program is now included in law students’ coursework at both The University of Westminster and The University of Wolverhampton in the UK.

Suzanne Liversidge, global managing partner at Kennedys, said: “The virtual work experience programme has been a fantastic success and has allowed us to welcome thousands of young people into the global Kennedys family. Our innovative scheme has also provided us with an amazing pool of talent to work with, many of whom would not have had a chance to engage with us before this programme was created. Most importantly this has allowed us to help and nurture talented individuals we may never have had a chance to reach before.”

Copyright ©2021 National Law Forum, LLC
Article By Hanna Taylor,  Rachel Popa and
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Biden Signs Largest Climate and Resiliency Infrastructure Bill in U.S. History

Today President Biden signed H.R. 3684, the “Infrastructure Investment and Jobs Act” (IIJA), into law after months of negotiations on both the bill itself and the still pending “Build Back Better Act”. These two measures encapsulate the Biden Administration’s legislative priorities, many of which were rolled out during the campaign. The U.S. Senate passed the IIJA on August 10 by a vote of 69-30. Last week, on November 5, the House of Representatives passed the measure by a vote of 228-206. The months long negotiations resulted in bipartisan support for the IIJA in both the House and Senate.

Broadly, the IIJA:

Provides Funding: The funds provided are appropriated dollars, allowing Executive Branch agencies to distribute funds without further legislative action. The funds provided are for both new and existing federal programs for surface transportation, energy infrastructure, transportation safety, transit, broadband, ports and waterways, airports, drinking water and wastewater. ​

Expedites Permitting: There are several new programs created to support transmission development and streamline the permitting of new energy infrastructure, such as electric transmission

Provides New Authorities and Creates New Programs: Various federal agencies are required to develop new programs and processes, all aimed at deploying clean energy or improving cybersecurity​.

The IIJA represents a monumental investment in all types of infrastructure. However, most significantly, it will provide the largest federal investment since the New Deal in the Nation’s infrastructure and in developing the tools to curb carbon emissions and harden infrastructure to increase resiliency against the current global challenge of climate change. The Department of Energy and other federal agencies will receive $65 billion for power and grid related programs, including grid infrastructure, resiliency investments, clean energy demonstration projects and cybersecurity. An additional $7.5 billion will be available for alternative fueling infrastructure for grants to build public fueling systems, including electric and hydrogen fuels, establish alternative fuel corridors, and find ways to recycle used electric vehicle batteries to be reused as energy storage devices.

In July, our team shared the details of the bill passed by the Senate Energy and Natural Resources Committee. As signed into law, this earlier summary still accurately reflects the details of the funding that will be provided.

Implementation and Timing of Funding: Agencies will now be tasked with standing-up new or expanding existing programs to award federal funds to eligible infrastructure projects. Agency offices will work over the coming weeks to establish grant program parameters, develop, and publish solicitations for applications, set timelines for awards and oversee implementation of awarded funds.

The IIJA included deadlines for some agency actions, requiring that programs be established in 60, 90, or 180 days. Note that many of the agency offices, particularly within the Department of Energy, remain functioning without political appointees. For instance, the Office of Electricity, which will be responsible for issuing $3 billion in grants through the Smart Grid Investment Matching Grant Program, is operating under an Acting Assistant Secretary until the Senate confirms the Biden Administration’s nominee for that post. There are no legal or political impediments to getting funding programs up and running without a political appointee heading any federal office, but political influence on the pace and timing for the process may be limited.

Certain programs will automatically send funds to states through existing formula funding programs. Formula grant programs are non-competitive awards based on a predetermined formula. These programs are sometimes referred to as state-administered programs and are found throughout the federal government. Examples include the Environmental Protection Agency’s Clean and Drinking Water State Revolving Loan program, and the Department of Transportation’s Formula Funds for Rural Areas, and Buses and Bus Facilities formula grants programs. Once the states have received their federal allocations they will then make those funds available through their existing award structure, which may be competitive or formula-based.

How Your Organization Can Apply for Federal Funding Opportunities: As agencies establish parameters for new programs or develop solicitations for existing programs, it is important to engage with the agencies in this process to ensure your project will meet agency program criteria for a funding award, and to ensure solicitations are designed to support your infrastructure projects. Our professionals have had significant success in assisting clients through these processes, and successfully assisted clients in the development of grant applications for awards under both Democratic and Republican Administrations. Contact any of our professionals to learn more about what grant programs your organization may be eligible for, how to engage with the agencies, as well as apply and partner with the federal government to ensure funding is awarded for your project.

What’s Next, Human Infrastructure: The IIJA represents only the provisions in the Biden agenda that were able to earn bipartisan support. The remainder of the President’s priorities are encapsulated in a Budget Reconciliation bill, H.R. 5376, the “Build Back Better Act”, (BBBA) developed by House and Senate Democrats and requiring only a 50-vote threshold in the Senate.

For months, the Build Back Better Act and IIJA and were linked in the legislative process by President Biden and House Speaker Nancy Pelosi (D-CA) who demanded that one not pass without the other. This approach resulted in a rift between the Democratic Party’s moderate and progressive members. While the final outcome for the IIJA resulted in bipartisan votes in both the House and Senate, passage only came after a deal was struck between moderates and progressives within the Democratic Caucus to decouple the IIJA and the “Build Back Better Act”.

House Speaker Nancy Pelosi has publicly said that the “Build Back Better Act” will be brought to the House Floor during the week of November 15. Senate Leadership has made no such promise for timely action. In addition, some House Democrats and some Senators have announced they want to see the details of budget scoring – what individual provisions will cost – from the Congressional Budget Office (CBO) and the Joint Tax Committee – before proceeding. Some limited data has begun to be released by the CBO but not any numbers covering many of the most complex and controversial programs. The schedule may be accelerated if Democrats and Republicans cannot come to an agreement to increase the debt ceiling, a must-pass measure that may need to be included in the Budget Reconciliation process. As negotiations continue, the content of the legislation passed by the House is expected to be altered significantly during Senate consideration. Should that be the case, the House will vote a second time on the measure as amended by the Senate.

Article By: Tracy Nagelbush Tolk and Tiffany Ganthier from Van Ness Feldman LLP

© 2021 Van Ness Feldman LLP

CosmoKey Gets a Duo-Over – Federal Circuit Panel Reverses Finding of Ineligibility

In CosmoKey Solutions GMBH & Co. KG v. Duo Security LLC, No. 2020-2043 (Fed. Cir. Oct. 4, 2021), the Federal Circuit reversed a finding of ineligibility for claims directed to a computer authentication method.

CosmoKey’s patent is directed to an authentication method that requires a user to activate a timed authentication function on a mobile device to log into a computer. Duo Security moved for judgment on the pleadings. The district court found the claims ineligible under § 101, specifically finding that the claims were directed to the abstract idea of “authentication” at step one of Alice, and that the remaining elements were generic computer functionality at step two.

The Federal Circuit reversed. The majority first stated it was “not convinced” the claims were broadly “directed to” authentication, instead noting the focus of the claims and the specification on the activation of a timed authentication function. Nonetheless, according to the majority, answering this question at step one was “unnecessary” because the claims were eligible at step two for reciting a specific improvement to authentication that “increases security, prevents unauthorized access by a third party, is easily implemented, and can advantageously be carried out with mobile devices of low complexity.”

Judge Reyna concurred in the judgment, but did so by resolving the inquiry at step one, finding the claims directed to a “specific improvement to authentication.” He viewed the majority’s decision to skip step one and resolve the inquiry at step two as “turn[ing] the Alice inquiry on its head.” He noted that, without the step one analysis, it is difficult to determine whether “additional elements transform the nature of the claim into a patent-eligible application” of an abstract idea.

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
For more patent litigation, visit the NLR Intellectual Property Law section.

More Circuits Added to the OSHA ETS Lottery

Lawsuits challenging the COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) were filed in three additional U.S. Circuit Courts of Appeals on Wednesday, November 10, 2021. Labor unions filed lawsuits in the U.S. Circuit Court of Appeals for the Second, Fourth, and Ninth Circuits. As a result, there are now ETS-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts.

According to federal rules, the legal challenges to the OSHA ETS will be consolidated and heard by a single U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation will conduct a lottery, expected on November 16, to select which U.S. Circuit Court of Appeals will hear the consolidated litigation. The court to hear the litigation will be drawn “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each court only gets one entry, despite the number of petitions pending before each court. Until the Judicial Panel selects the U.S. Circuit Court of Appeals to hear the litigation via the lottery, all the U.S. Circuit Courts of Appeals can proceed with rulings, as the Fifth Circuit did this past weekend.

The labor unions’ move may be a move reflective of an intent by some to increase the odds that the OSHA ETS is upheld. The First, Second, and Fourth circuits all have a majority of Democratic-appointed judges. But it is difficult to predict the future of the OSHA ETS as the panel of judges to hear the case is also selected randomly.

© Polsinelli PC, Polsinelli LLP in California
For more updates on COVID-19, visit the NLR Coronavirus News section.

Don’t Use “Build Back Better” to Sabotage the False Claims Act

Congress is on the verge of setting a dangerous precedent.  As part of the Build Back Better Act, it has added two provisions equivalent to a “get out of jail free card” for Big Banks that violate federal law when they hand out billions in federal mortgage-related benefits.   The two provisions create exemptions to False Claims Act liability by creating blanket immunity from liability when banks fail to exercise due diligence, violate FHA housing regulations, or even directly violate federal laws such as the Truth in Lending Act.

It is obvious why banks want to have their federally sponsored mortgage practices immunized from exposure to the False Claims Act (“FCA”).  The FCA works remarkably well and is widely recognized as “the most powerful tool the American people have to protect the government from fraud.”   The law has directly recovered over $64.450 billion in sanctions from fraudsters since Congress modernized it in 1986.  During the debates on the massive trillion-dollar infrastructure laws enacted or debated this year, corporate lobbyists have been extremely active in successfully preventing Congress from adding any new anti-fraud measures to protect taxpayers from fraud.  As part of these efforts, they targeted the False Claims Act as enemy #1 and already have blocked one key amendment needed to close some weaknesses in that law.

With the Build Back Better Act, these corporate lobbyists have taken their opposition to effective anti-fraud laws to a higher level.  Instead of trying to repeal the FCA, they are simply exempting Big Banks from liability under that law in two new programs.  It is obvious why the Big Banks want the exemption from FCA liability.  As a result of illegal or irresponsible lending and foreclosure practices, such as those that fueled the 2008 financial collapse, banks have had to pay billions in sanctions to the United States.

Two words explain why the FCA is “the most powerful tool” protecting taxpayers from fraud:  Whistleblowers and sanctions.  If you accept federal taxpayer monies, you are required to spend that money according to your contractual agreement or the law.  The FCA’s first secret weapon is whistleblowers.  The law encourages whistleblowers, known as qui tam “relators,” to report violations of the FCA.  Whistleblowers disclosures trigger the overwhelming majority of FCA cases, and the law incentivizes employees to risk their careers to serve the public interest. The second secret weapon is how you prove liability.  Second, when an institution accepts federal monies (such as banks that operate various federally sponsored loan programs), liability can attach if the institution acts in “deliberate ignorance of the truth” when spending federal dollars.  Similarly, if payments are made with “reckless disregard of the truth,” liability can attach.  In other words, corporations (including banks) that accept federal money must ensure that these monies are spent as required by law, regulation, or contract.  Safeguards must be in place to prevent fraud.  If a bank does not have adequate compliance programs to protect against fraud, it cannot plead ignorance when the law is broken and taxpayers are ripped off.

These two key elements of the False Claims Act are precisely what the banking lobby is attempting to undermine through the Build Back Better Act.  The tactics employed by the Big Banks are somewhat devious.  They are doing an end-run around the False Claims Act by exempting themselves from having to engage in any due diligence when spending billions in federal dollars.  The banks are seeking to add language to the Build Back Better Act that will immunize themselves from liability under the False Claims Act when they make payments in “reckless disregard” to the legality of those payments.  The immunities they are seeking legalize “deliberate ignorance” in the use of taxpayer money, in complete defiance of the False Claims Act. Thus, whistleblowers who report these frauds will be stripped of protections they have under the False Claims Act, and the federal government will have no effective way to recover damages from these frauds.

What language in the Build Back Better Act creates an exemption to False Claims Act liability?

Two highly technical provisions are deeply buried within the 2135 pages of the Build Back Better Act’s legislative text. The provisions are sections 40201 and 40202 of the Build Back Better Act.  These two sections establish helpful programs that will provide needed financial support to first-generation homebuyers.  Section 40201(d)(5) would provide $10 billion in down payment assistance. Section 40202(f) would give an interest rate reduction on new FHA 20-year mortgage products to first-time homeowners with a potential value of $60 billion.  But the banking lobby has corrupted these otherwise well-meaning programs. The exemptions obtained by the banks are incubators for massive fraud.  It permits the Big Banks to escape any liability when they abuse the generosity of taxpayers and dole out billions to unqualified individuals.

How do the exemptions work?  To qualify for these taxpayer-financed benefits, an applicant simply has to “attest” that they are first-time/first-generation homebuyers.  That would be the end of the inquiry a bank would need to approve making a payment from the billions allocated in these two programs. Anyone could simply stroll into a bank and “attest” to being such a first-time homebuyer and would thereafter qualify for the federal benefits.  The banks would not be required to do any diligence of their own to confirm the borrower’s eligibility.  Willful ignorance would be legalized.  Reckless disregard in the handling of taxpayer monies would be permitted under this law.  Safeguards, such as requiring banks to adhere to the Truth in Lending Act, which requires verification of a borrower’s statements, would not apply.

Under Sections 40201(d)(5) and 40202(f), banks will not be held liable once they are lied to, even if the bank has reason to know that the borrower is not eligible for the federal payout.  Banks can spend taxpayer money even if the information on an applicant’s loan application directly contradicts the borrower’s attestation that they are a first-time homeowner.  Given the lack of any compliance standards, the temptation to engage in fraud in these programs will be overwhelming.

Permitting banks to escape liability under the False Claims Act opens the door to paying billions of dollars in benefits to unqualified persons.  Such payments rip off the taxpayers and severely hurt all honest first-generation homebuyers denied benefits.  For every fraudster who benefits from this program, an honest homebuyer will be left in the cold due to the reckless disregard of the banks.

Congress should never use a back-door procedure to undermine the False Claim Act, as it sets a dangerous precedent.  It is a devious way to undermine America’s “most effective” anti-fraud law.  Instead of undermining the False Claims Act by granting immunities to Big Banks, Congress should be strengthening anti-fraud laws to protect the taxpayers and ensure that the trillions of dollars spent on COVID-19 relief programs and infrastructure improvement are lawfully spent in the public interest.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.
For more articles about banking and finance, visit the NLR Financial, Securities & Banking section.

2021 Guide: The Importance of Online Reviews for Law Firms

Welcome to 2021 — where our buying decisions are ruled by stars. Where we value a five-star review as much as we would a personal recommendation from an old friend, and anything less than 3 stars isn’t worth a second thought. Like it or not, here we are in the consumer-driven age of online reviews.

When looking into a product or service, nine times out of ten we do an online search first. Whatever the search results fetch for us, we click through. We read reviews, we count the number of stars, and 90% of us base our buying decision on what the reviews say.

In fact, 72% of consumers trust online reviews as much as they would a recommendation from a personal friend. It goes without saying that online reviews can be an incredibly valuable tool for your law firm. Beyond the psychological impact that they have on consumers buying decisions, it can also help boost your local SEO rankings so that your law firm shows up first when people are looking for a lawyer in their area.

However, many lawyers may be hesitant to ask their clients for online reviews, since they assume one bad review can taint their online reputation. Out of fear of straying from the particular image they hope to convey online, they prefer to have no reviews at all.

What a mistake this is.

You can think of your online reputation like a credit score. No established credit is the same as bad credit. No review is the same thing as a bad review. Whether it’s for a burrito or a lawyer, consumers want to see online reviews.

Prospective clients want reassurance about a lawyer, so they are looking for law firm reviews before making their decision.

A Google Business Profile Is Key

A recent survey asked legal consumers what their steps were after searching for a lawyer on Google. Almost 30% replied that they would google lawyer reviews and read the reviews on a business’s Google profile while just under 20% said that they would read a review on another website. This goes to show that Google is one of the most important places where you should have online reviews for your law firm.

Although there are many different review websites that people go to to make their buying decisions, Google should be lawyers’ primary concern. Setting up a business profile on Google is totally free, and it can be a fantastic tool for generating leads.

How Google Reviews Benefit Your Law Firm

Increased Online Visibility

Google tracks your law firm’s ratings and will boost your visibility based on how many ratings you have. If you can manage to get enough ratings, you can push your law firm to the top of Google search results which lists the first three businesses in the area that match a user’s search query. This is known as Google local pack, and they come directly from the Google My Business directory. Again, another reason that your law firm should have a Google business profile.

People Trust Google

A good review on Google has the potential to sway even the most skeptical of customers. 74% of consumers say that a positive review on Google makes them more inclined to trust a business. Simply put, people look to Google as their one-stop internet concierge to show them what’s hot and what’s not.

Google Customer Interaction = More Leads

Google bases your search ranking on how much you interact with your user reviews. So, before you think that you only have to respond to bad reviews, don’t forget that you should also be responding to the good ones. Google is paying attention and recognizes active responses.

Get into the habit of visiting your Google business profile every day and responding to every single review. Apologize when it’s necessary and say thank you when it’s called for. Think of your Google profile as a garden — you have to sprinkle it every day with customer interaction for it to blossom into a lead magnet.

Increased Click-Through Rates

When people visit your business profile and see a high rating, they will naturally gravitate towards your website. Consequently, you’ll improve your click through rate giving you an opportunity to reach your target audience even more.

Why Online Reviews of all Kinds Are Important

Although Google is ideally where most of your online reviews should be, that’s not to say that other review sites aren’t beneficial. Whether your clients review you on Google or Yelp, here is why online reviews are important for your business.

Social Proof

People are more likely to choose a lawyer if they can find a review telling them that it’s a good purchase decision. Social proof has a huge impact on sales and can be the driving decision between choosing your law firm or a competing one. If a lead sees your law firm listed as a five-star review, they’re going to believe that it’s worth the hype. The more feedback you can generate from prior clients, the more that you will encourage others to work with you too.

Increased Visibility

Regardless of what review website you’re on, each site has its own way of indexing content. The more customer reviews that you have the more that the website will push your business to the top. Algorithms favor your website as the authority when you have a high amount of great reviews, therefore giving your law firm more visibility.

Trust

One of the most important things that people look for in a lawyer is trust. People are looking for someone to handle their matter who they know they can count on to do it right. Each time you get a great review, you’re increasing your credibility, making you look that much more trustworthy. If your law firm has plenty of reviews claiming how great you are, then it’s going to significantly increase people’s trust in you that you’re the right person for their case.

Brand Reach

Encouraging your clients to leave you a review will increase conversation about your law firm. If customers are talking about you online, then you’ll boost your online presence, and ultimately your ranking. So, encourage your customers to share their happy experiences on as many different review sites as possible, increasing your brand’s footprint on multiple channels.

Dealbreaker

There are many customers out there who won’t purchase a service or product from a brand they don’t have any information on. Just about 2/3 of consumers make their final decision based on online reviews. So, for those consumers who need to see online reviews before they make their final decision, you need to make sure that your law firm shows up first by producing a steady stream of online reviews.

Increased Sales

There is a great deal of data out there that proves that online reviews significantly impact your bottom line. According to a Harvard study, increasing your star rating will lead to a boost of 5 to 9% sales, which clearly demonstrates that even a small improvement in your rating can have a pretty big impact on your revenue.

Reinforces Client Relationships

A lot of law firms make the mistake of assuming that you only have to respond to negative reviews, which simply isn’t true. Reviews are a wonderful way to strengthen your relationships with customers by responding to both positive and negative feedback. Reviews give you an opportunity to reinforce positive experiences by giving thanks and providing an open line to your previous clients while recognizing where you have room to grow.

Giving personalized replies to comments means that you’re giving your law firm a human face. When you have an open-to-feedback demeanor, it’s attractive to potential clients. A friendly online attitude in response to positive and negative reviews can work wonders for your reputation.

Encourages Growth

Any smart business knows that there’s always an opportunity to grow and improve. Observing your customers’ positive and negative experiences online can give you better insight as to what your clients truly want. If you get one or two reviews mentioning a specific problem, then it’s probably not that big of an issue. However, if you notice the same issues coming up several times in a row, then you know that it’s clearly an indication that you need to make a change.

By using your customers’ experience as insight, you can make improvements where necessary, and use each review as a stepping stone towards becoming the best you can be.

Tips For Handling Critique

One of the most common reasons why lawyers are hesitant to encourage online reviews is they don’t want negative critique floating around online potentially tarnishing their reputation. And while your first instinct when you see a negative review of your law firm, may be “Take it down! Sue for defamation!” that’s not always the best solution. A review that contains outright false information may be considered defamation, but is it really worth a legal battle?

So, when you get a negative review, take a deep breath and try the following.

Respond Professionally

Nothing looks more unprofessional than seeing a business come down on a negative online review with an aggressive and self-defensive response. Or worse, not responding at all. Instead, it helps to respond professionally and calmly, encouraging the unhappy client to contact you directly, shifting the dialogue away from the public eye.

When responding, always make sure that you apologize appropriately if needed, and make it clear that your number one goal is finding a resolution. Above all, always make sure that a client’s case is kept confidential. If your law firm fails to respect confidentiality in its response, it could lead to bigger issues than your online reputation.

Encourage More Positive Reviews

Since you can’t take negative comments down, the next best thing you can do is drown them out! After responding professionally to a negative review, wash it out by turning it into a small piece of a greater whole. The way that you do this is by encouraging more and more reviews.

If the majority of your online reviews are saying that your law firm is fantastic, and there are only one or two negative reviews, then they’ll usually be ignored. So, don’t be afraid to ask for reviews from your happy clients to water down the negative ones.

It’s as simple as asking your client at the end of their case by sending an email. If they had a positive experience, chances are that they’ll be thrilled to leave you one or several positive reviews online. It doesn’t take much convincing for a happy client to spread the word about their great experience.

You may even want to consider adding a review landing page on your website to provide an easy way for clients to review you.

However, it’s important to note that certain review sites like Yelp publicly state that businesses should not directly ask clients to post reviews. So, always make sure that you’re familiar with the legalities before asking a client to review you on a certain site.

Online Reviews: A Critical Part of Clients Decision Making Process

As we near 2022, we see more than ever why online reviews are important for law firms. Reviews will continue to play an important role for clients searching for a lawyer, so it’s time to start prioritizing online reviews as a part of your law firm’s marketing strategy.

In order to build a five-star reputation for your law firm, You’ll need to give your clients a reason to leave a great review.

One of the best ways to do that is by relying on legal software to automate your processes. Automation features like drip campaigns for law firms, two-way SMS text messaging for law firms, and automated appointment scheduling give each client the impression that they’re your only client.

©2021 — Lawmatics

Article By Sarah Bottorff of Lawmatics

For more articles on legal marketing, visit the NLR Law Office Management section.

8 Tips to Boost Law Firm Marketing ROI

Marketing campaigns to generate leads are a significant investment for many law firms. In return, they expect their law firm marketing ROI tactics to produce higher client conversions and be worth the investment of time. Unfortunately, some firms lack the lead capture capability to nurture leads, wasting their marketing spend.

For high marketing ROI, a law firm must-have tools and resources in place to effectively capture leads and convert them into clients. Here are 8 tips to boost law firm marketing ROI.

What is ROI?

ROI is a performance measure that evaluates the efficiency and profitability of an investment, such as marketing spend. Usually, ROI is calculated by dividing the benefit of the investment – such as leads generated – by the cost of the investment.

In some cases, ROI can be a complex calculation that considers many investments of time, effort, and money. Realistically, a lot goes into a conversion, such as attracting a new lead or signing a client, but it’s best to focus on the specific and measurable benefits with the costs for a simple ROI result.

1. Set a Standard for Law Firm Marketing ROI

Calculating ROI can be complex, but there are acceptable ranges for what an ROI should be. This provides a standard to measure future efforts against.

Your law firm marketing ROI strategy should try to set a target prior to the marketing spend, then see if the campaign reflects that target. If expectations and ROI don’t match, it’s time to reevaluate the ROI calculation, the marketing efforts, the intake process, or all three.

2. Find the Right ROI Calculation Method

Law firms should calculate ROI using the following method:

Total the investment:

Investment = Implementation Cost + Cash Cost

Calculate the net annual savings:

Net Annual Savings = Annual Savings – Annual Expenses

Calculate the ROI:

Annual ROI = Net Annual Savings / Investment

This is a standard calculation, but some firms may lack the raw data necessary or have too much uncertainty. In these cases, the marketing ROI can be simplified by creating test groups to remove as many variables as possible. Use “like-for-like” comparisons to see which efforts yield results and which don’t.

3. Hire Intake Specialists

Law firms can be busy places, so it’s possible for new leads to get lost in the shuffle. Receptionists often have long to-do lists and can’t dedicate the time and attention to nurturing leads.

Prospective clients reach out to a law firm and expect a quick response and expert consultations. If that doesn’t happen, they’ll keep searching for a firm that caters to their needs. Intake specialists can ensure each client is given the attention they need in a professional and efficient way, boosting the marketing ROI all around.

4. Provide Immediate Responses

Legal troubles can be stressful, so clients calling a law firm want a live response that eases their concern and gives them peace of mind about the process. When a client calls a law firm and gets a dedicated team to handle their case consultation, they no longer feel the need to shop around for another firm.

Professional legal call centers can give prospective clients a response within 30 seconds, or fewer than three rings. They also offer live outbound calls in response to website inquiries. This response time shows prospective clients that they’re valued, boosting the chances for conversion.

5. Implement After-Hours Support

Marketing campaigns can generate high call volumes, quickly overwhelming a law firm’s team. Worse yet, if calls go to voicemail after hours, the client is likely to continue calling firms until they find one to help.

Law firms should always have a dedicated answering service for after-hours support. These trained professionals can handle the overflow and field calls to nurture leads, 24 hours a day, seven days a week. Every prospective client will receive an instant response, no matter the time of day or night.

6. Keep Track of Leads

Lead tracking is likely part of the intake process, but it’s important to follow up and give every prospective client the care and attention they want. Lead tracking helps law firms follow through with leads along each phase of the customer journey, from initial awareness to conversion. The information from lead tracking can also be used to follow up at critical points and set up appointments and consultations.

Lead tracking can reveal flaws in the current intake process as well. Law firms can evaluate the intake process and identify areas for improvement, both for the larger goal and to enhance the client experience.

7. Create Convenient Contract Delivery Methods

The delivery and signing of a contract is a crucial step in converting a lead. Ideally, all qualified leads should be signed on the initial call, or they may seek help at competitors’ firms.

Convenient contract delivery methods solve this problem by sending fee agreements through text, email, or conventional mail to get documents signed quickly. This not only benefits the client and provides a stellar experience, but it increases conversion rates for the firm.

8. Embrace Legal Technology

Many tools are available for law firms to track profitability, manage client relationships, and monitor expenses, such as marketing investments. Legal technology offers powerful tools, such as expense tracking and reporting to keep up with expenses from anywhere, on any device. Legal technology may also feature client management to track and optimize the client relationship for better service and increased efficiency.

Workflow management may be included, which can help with client response protocols, client intake procedures, and lead nurturing. Depending on the features of the legal technology, law firms can take a lot of mystery and time out of the lead generation process.

©2006-2021, BILL4TIME. ALL RIGHTS RESERVED.

Article By Bill4Time

For more articles on the legal industry, visit the NLR Law Office Management

Not-So-Free Shipping: Yeezy Brand to Pay Us$950,000 Over Late Shipping Under California Consumer Protection Laws

Supply chain disruptions, coupled with a surge in online shopping, have led to overstretched companies and impatient customers. The supply chain crisis1 continues to cause shipping delays across the nation as companies struggle to work around pandemic-related constraints. A recent case in the Los Angeles County Superior Court has put companies and individuals who advertise or conduct business, online or otherwise, in California on notice that failure to adequately communicate with customers regarding accurate shipping times could result in consumer protection law liability for missed shipment deadlines.

On 8 November 2021, the Los Angeles County District Attorney’s Office announced that the high-end sneaker and retail clothing companies, Yeezy Apparel LLC and Yeezy LLC (collectively, Yeezy), will pay US$950,000 to settle a civil consumer protection lawsuit. The lawsuit, filed by district attorneys in Los Angeles, Alameda, Sonoma, and Napa counties, alleged that Yeezy engaged in unlawful business conduct under the California Business and Professions Code (BPC) for failing to ship items in a timely manner and false advertising.2

THE LAWSUIT – CALIFORNIA V. YEEZY APPAREL LLC

In its complaint, filed on 22 October 2021, the state of California alleged that sneaker and apparel brand Yeezy, owned by entertainer Ye (previously known as Kanye West), advertised on its website that customers could expect two to three business days for order processing and an additional three to five days for shipping, but in fact failed to send products within 30 days after certain orders were placed, in violation of California BPC Sections 17538 and 17500.3

Under Section 17538, companies must ship goods within 30 days4 of the customer placing an order unless otherwise conspicuously stated in the advertisement or on the website. Upon determining that a shipment may be untimely, a company may (1) provide a full refund,5 (2) send a written notice to the buyer that offers a full refund and either details the expected duration of the delay or proposes product substitution,6 or (3) ship a substitute product of equivalent or superior quality to the buyer with an option for the buyer to return the product.7

Section 17500 governs untrue or misleading statements, including a prohibition against the advertisement of goods or services with the intent to not sell them as advertised. The statute bars “any advertising . . . which is untrue or misleading.”8 Further, the statute prohibits advertisements that the company either knew or should have known would be misleading.9 Violation of Section 17500 can result in a fine of up to US$2,500, up to six months of imprisonment, or both.10

The state of California’s claims against Yeezy ultimately were resolved by a settlement agreement in which Yeezy agreed to refund future customers whose items are not timely shipped, refrain from making any false or misleading statements regarding shipping times, and pay US$950,000 in civil penalties.

KEY TAKEAWAYS

  • If you are expecting significant shipping delays, promptly send written notices to customers explaining the expected duration of the delay (expressed using a specific number of days or weeks) and offering to provide a refund upon request.
  • If proposing to substitute goods or services, adequately describe the substitute goods or services, fully indicating how the substitution differs from the original order.
  • Provide a toll-free telephone number or another free method for the buyer to request a refund.
  • Include a clear and conspicuous disclosure statement in your advertisements or on your website that notifies customers that shipping times may be delayed due to COVID-19 or other supply chain-related factors.11

With a thorough and proactive response to potentially delayed shipments, retailers can avoid costly litigation and financial penalties and continue to build transparent and reliable relationships with customers.

FOOTNOTES

1 For more information on supply chain disruptions, see Melissa J. Tea and Sarah A. Decker, No Supplies in the Chain, K&L GATES (Oct. 20, 2021).

2 Complaint, California v. Yeezy Apparel LLC, No. 21STCV38971 (Cal. Super. Ct. Oct. 22, 2021).

3 Id. at *3–4. According to the complaint, Yeezy’s alleged untimely shipments had been occurring for at least four years.

4 If the customer applies for an open-end credit plan at the same time as placing an order for products that are to be purchased on credit, the company will have 50 days to comply with § 17538, rather than 30.

5 Cal. Bus. & Prof. Code § 17538(a)(2).

6 Id. § 17538(a)(3).

7 Id. § 17538(a)(4).

8 Cal. Bus. & Prof. Code § 17500.

9 See id.

10 See id.

11 Notably, although Ye partnered with sportswear brand Adidas to sell Yeezy products, Adidas was not included as a defendant in the lawsuit. Adidas displayed a disclaimer on its website that informed customers that shipping times would be delayed due to COVID-19’s impact and related federal, state, and local mandates.

Copyright 2021 K & L Gates

Article By Melissa J. Tea and Kelsi E. Robinson of

K&L Gates

For more articles on supply chain, visit the NLR Utilities & Transport section

Text Messaging for Lawyers: Building Stronger Client Relationships

In today’s world of instant gratification and text savviness, lawyers should consider changing the way they communicate with clients. Some people detest answering calls, and with the rise of robocalls, this aversion is only getting worse with all generations. Add in the fact that today’s consumer expects a response within seconds, it’s clear that text messaging is becoming the new way of communication for most businesses.

For lawyers that are accustomed to emailing their clients, this may come as a curveball. Especially, considering that the legal industry has an average open rate of 18.30 percent for emails. Phone calls and emails are no longer the preferred method of communication, which is why you should be texting your clients.

Benefits of Texting

Marketers have been studying the effectiveness of text messaging and spreading the news of its benefits so much that 62 percent of business marketers plan to use automated text messaging in the next year. What is it that has these marketing experts so convinced?

  • Change of Preference – The vast majority of consumers prefer to communicate via text instead of calls or email. If a business is trying to send a message to prospects, it’s important to know it’s actually going to be seen.
  • Faster Delivery – When time is of the essence, delivering a message via text is the fastest way to ensure your recipient sees your communication. Email open rates are at an all-time low, so those messages may go days without being seen, if they’re seen at all.
  • Faster Response – With faster delivery comes faster response times. Studies have shown text response rates are eight times faster than that of email.

Business Text Messaging

Business owners have already started incorporating text messaging in both their marketing and client retention strategies. Studies have shown that the new generations will ignore calls, even from known contacts, and typically only use email to reset passwords and register for services. As a workaround, businesses are enlisting the help of text messaging services to reach out to potential customers.

Instead of only investing in generating prospects, more and more businesses are using technology to help retain customers by enabling text help and communication. This feature is often embedded on the business’s website and allows the customer to text a business directly from their phone for quick, personalized help.

Text messaging has increasingly grown in popularity across several industries. Studies show that businesses that respond to a customer’s inquiry within five minutes increase their chances of converting that prospect by nine times. In addition, studies show that the majority of consumers will go to the business that responds first, regardless of affiliation, pricing, or worthiness.

With statistics like this, industries across the spectrum are seeing the need for lightning-fast responses which can only be achieved through text messaging. The legal industry is no exception.

Text Messaging for Lawyers

The legal industry is not one that has historically been quick to respond to change, so it’s no wonder that some lawyers are hesitant to adopt text messaging in their communication process. Common objections to this method of communication seem to be propriety and confidentiality, while others are admittingly stuck in their old ways.

While the third issue is difficult at best to overcome, there are clear solutions and arguments for the first two which are detailed below.

Is It Appropriate to Text Clients?

This question comes up often when lawyers are trying to decide if text messaging is a professional mode of communication. However, instead of viewing it from a proprietary standpoint, a lawyer should be asking the legal duty they have to communicate to their client efficiently. As the younger generations are coming of age and becoming clients, it’s important to adapt to their preferred mode of communication.

If a client only has a cell phone and no easy access to email, the lawyer should accommodate the client and reach out to them in the best way possible. For most, that means adopting text messaging as a primary mode of communication.

Are Text Messages Confidential?

Text messages may not be confidential in nature, creating challenges for texting clients. Instead of avoiding text messaging due to this potential issue, lawyers should ask their clients to use screen locks and other security features on their phones. In most cases, clients are just as dedicated to protecting their privacy as their lawyer.

While expectations should be discussed in advance, it’s easy for conversations to slip into gray areas. If a conversation may be veering into a confidentiality issue, the lawyer may suggest switching to a phone or in-person conversation.

Best Practices for Text Messaging Clients

As lawyers make the transition to using text messages more often, the standards for best practices will grow. Thus far, the top tips for texting clients include:

  • Adopt a legal practice management software that provides users with a business number to text clients within the platform and safely stores all correspondences with each contact.
  • Never negotiate terms of attorney-client relationships or anything that feels like a grey area. Remember: business text messages are supposed to be quick and informal.
  • Discuss expectations and appropriate topics for texting. Make sure clients understand some topics are off-limits for text messaging and should be saved for in-person meetings.

Keeping with the Times

While many lawyers may remember calling their client’s on wall-mounted phones and landlines, times have quickly changed. The legal industry has to get on board if it’s going to serve clients effectively and retain clients.

Despite the concerns, the benefits of text messaging outweigh the cons, and law firms will likely see an increase in client retention and improved communication once they adopt text messaging. With a minimal upfront effort, lawyers can start texting their clients while maintaining confidentiality and professionalism, allowing clients to receive the best, and most convenient, representation possible.

 

This article was prepared by PracticePanther. For more articles about client relations, please see here.

Tennessee Enacts Law Restricting Enforcement of Vaccine Mandates

On November 10, 2021, Tennessee Governor Bill Lee announced that he would sign legislation that addresses various COVID-19–related issues, including vaccine mandates and mask mandates. The law is effective immediately. There are several major issues for employers regarding COVID-19 prevention measures addressed in the new law. Below is an overview of the law’s key points.

Vaccine Mandates

The law does not prohibit private employers from adopting vaccine mandates. It seeks, in an indirect manner, to restrict employers from mandating vaccines… The law focuses on prohibiting employers from requiring proof of vaccination status. The express language of the new law is as follows: “A private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”

It would appear that the law potentially creates a perverse “don’t ask/don’t tell” incentive for both employers and employees. If an employee openly objects to receiving a vaccine, an employer can still ask why—to determine if there is a bona fide Title VII religious or Americans with Disabilities Act (ADA) accommodation issue—but the employer would appear to be able to discharge or discipline the employee for the employee’s objection (absent accommodation issues). What a Tennessee employer cannot to do is ask employees for proof of vaccination status and then take an adverse action if the employees fail or refuse to provide proof of their vaccination status. By contrast, an employee might have an incentive to keep quiet and not answer (or lie) if asked about vaccination status.

Mask Mandates

An earlier version of the legislation sought to prohibit mask mandates entirely. The version that has become law limits the prohibition on mask mandates to government employers: “An employer that is a governmental entity shall not require an employee to wear a face covering as a term or condition of employment, or take an adverse action against an employee for failing to wear a face covering, unless severe conditions exist at the time the requirement is adopted and the requirement is in effect for not more than fourteen (14) days.” (Emphasis added.)

Unemployment Benefits

The law allows employees discharged for refusing to be vaccinated to receive unemployment benefits—and it is retroactive.

Medicare and Medicaid Vaccine Requirements

The law excludes from its coverage healthcare providers that are subject to Medicare or Medicaid vaccine requirements.  On November 5, 2021, the Centers for Medicare & Medicaid Services published their interim final vaccine mandate rules.

Exemptions

The new law allows employers, private businesses, schools, and state and local governmental entities to apply to the state comptroller for exemption from the requirements of the statute if compliance would result in a loss of federal funding. This exemption process would allow employers that are federal contractors to seek exemption.

Federal Emergency Temporary Standard

The law may set up a potential showdown between the Tennessee Occupational Safety and Health Administration (TOSHA) and the federal Occupational Safety and Health Administration (OSHA) over the implementation and enforcement of OSHA’s recently issued COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for large employers (100 or more employees). The Tennessee law’s prohibition on compelling employees to provide proof of vaccination status is in direct conflict with the federal ETS (which requires employers to determine the vaccination status of each employee, including requiring each vaccinated employee to provide “acceptable proof of vaccination status”).

State OSHA plans, such as Tennessee’s, have 30 days to adopt the federal standard. However, the Tennessee law includes a provision that prohibits any state funds from being allocated to implement or enforce any “federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure” (including vaccines, testing, and masking). TOSHA receives funding from both the state government and the federal government. It is unclear whether TOSHA will be eligible to seek an exemption as described above. While the language of the exemption provision would appear to apply to TOSHA, the statements of proponents of the Tennessee law during the special session of the Tennessee General Assembly during which the legislation was approved made it clear that their efforts were aimed at curbing the impact of the federal ETS in Tennessee.

On Monday, November 8, 2021, TOSHA issued the following statement:  “Tennessee OSHA is currently reviewing the latest OSHA Emergency Temporary Standard regarding vaccines in the workplace.  As the agency did with the prior ETS, staff will review the OSHA standards and then determine how Tennessee will move forward. This process could take multiple weeks to complete.”

Key Takeaways

Business groups were strongly opposed to this new law, and that opposition contributed to the legislative shift away from an outright ban on vaccine mandates and to the narrowing of the anti-mask provision. There are still questions to be answered regarding this new law, including whether it will be challenged in court, what the process for requesting an exemption will look like, and whether Tennessee will adopt the federal COVID-19 Vaccination and Testing ETS.

This article was written by William Rutchow of Ogletree Deakins Law firm. For more information regarding vaccine mandate challenges, please see here.