Posting an arbitration section in your employee handbook may put an employee on notice of a company policy or “offer,” of which the employee could be said to be “generally aware,” but it might not, without more, establish that there is an agreement to arbitrate, pints out Gilbert A. Samberg for Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

There must be evidence of the employee’s acceptance, he explains in a post on the firm’s website.

He illustrates his point with a case from the Eighth Circuit, concluding: “An employer needs to be able to prove acceptance by each employee of an ‘offer’ of arbitration.”

Read the article.

Dykema announced that 119 of its attorneys, in multiple practice areas and markets, have been recognized in The Best Lawyers in America 2020 guide.

Additionally, 18 of the firm’s practitioners have been named Best Lawyers 2020 “Lawyer of the Year,” a special distinction conferred upon a single lawyer within a practice area and metropolitan market.

The Best Lawyers in America is the pre-eminent national listing of outstanding attorneys. This annual guide is derived from exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers.

Kevin Shepherd, a partner in Venable LLP’s Real Estate Practice Group in the Baltimore office, has been elected to serve as treasurer of the American Bar Association (ABA).

Shepherd was elected by the ABA House of Delegates during the ABA’s annual meeting on August 13. He will serve as the treasurer-elect in 2019-2020 and as treasurer for the 2020-2023 term. Shepherd currently serves as chair of the ABA Board of Governors’ Finance Committee and will continue in that role for the 2019-2020 bar year. Shepherd will be one of only a few to serve simultaneously as chair of the Finance Committee and as treasurer-elect.

The treasurer is one of the five elected officers of the ABA, along with the president, president-elect, chair of the House of Delegates, and secretary. Shepherd is the first Venable attorney to serve as an elected officer of the ABA, and is only the third Maryland attorney to serve as an elected officer of the ABA in nearly a century.

At Venable, Shepherd works with U.S. and global institutions in complex real estate transactions, the firm said. He is also managing director of finance and chair of Venable’s Finance Committee, which oversees the firm’s financial operations, policies, and procedures.

Founded in 1878, the ABA is committed to advancing the rule of law across the United States and beyond by providing practical resources for legal professionals, law school accreditation, model ethics codes, and more. The ABA has more than 400,000 members, is one of the world’s largest voluntary professional organizations, and is the world’s largest bar association.

Holland & Hart announced the addition of partner Mickell Jimenez to its Labor and Employment practice in its Salt Lake City office.

Jimenez has experience serving as outside counsel to business owners on employment and litigation issues, the firm said in a release.

The firm said Jimenez has experience serving as outside general counsel to Cafe Rio, Inc. Before joining Holland & Hart, Jimenez was a director and shareholder at Clyde Snow, where she was recently a member of the firm’s Management Committee and co-chair of the Labor & Employment group.

 The Dallas Morning News  reports that American Airlines is demanding that the mechanics’ unions pay for hundreds of flight delays and cancellations over the last two months.

“In a new court filing Tuesday, the Fort Worth-based carrier said it wants sanctions ‘sufficient to compensate American for losses caused’ from violations to a June 14 restraining order telling mechanics to cease work slowdowns to punish the company,” writes the News‘ Kyle Arnold.

U.S. District Judge John McBryde found that union maintenance workers conspired to slow down work by refusing overtime, taking more time on jobs and refusing off-site assignments. The unions have denied they slowed down work.

Read the  Morning News article.

As they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, 78-year-old David Boies and 80-year-old Alan Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case, reports The Washington Post.

Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers. That client has alleged that Epstein lent her for sex to his friends, including Dershowitz, according to the Post‘s article.

The accuser and her lawyers portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer, write the Post‘s Tom Jackman, Deanna Paul and Manguel Roig-Franzia.

Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.

Read the Post article.

Kraemer Manes & Associates has settled a lawsuit claiming that a client got bad legal advice after she was tricked into hiring the Pennsylvania law firm because of fake online reviews, reports the  ABA Journal.

The Journal‘s Debra Cassens Weiss explains:

“The lawsuit claimed that Kraemer Manes had ‘orchestrated a scheme of soliciting positive online reviews’ from people who had never used the law firm’s services. Nonlawyer employees were encouraged to solicit friends and family to write the reviews and given time off for each positive review they secured, the suit alleged.”

Read the ABA Journal article.

A brief published by the National Association of Corporate Directors takes a serious look at the critical interaction between the general counsel and the board during a crisis.

The information contained in the brief was captured from an in-depth discussion of Fortune 500 board leaders.

The publication, titled “Communicating in Times of Crisis: Insights From Fortune 500 Committee Chairs,” can be downloaded from the NACD website at no charge.

It addresses the question: How can the general counsel manage the timing of communications with stakeholders and balance the need for transparency with the organization’s risk appetite—amid an ongoing investigation?

Download the brief.

By Matthew Prinn
RFP Advisory Group

In April, BTI Consulting published a post titled 22% of Clients Bring on New GCs: New Game, New Rules, New Rates.

The post notes the following two implications for law firms about general counsel actions when they join a new company.

• This is only the beginning of a trend. The growth rate in retiring baby boomers will increase before it drops—expect a steady stream of new GCs. Plan ahead and develop a standard set of protocols to welcome all new GCs—and build yourself some serious relationships with this untapped source of new business.

• Almost every new GC puts out an RFP for legal services somewhere between 18 and 24 months into their tenure. Take control and offer to help write the RFP. Avoid the RFP by introducing yourself and befriending the new GC early on. Help with onboarding and start the conversation about complexity. *Source BTI Consulting

What I wanted to focus on in this blog post was the sentences that reference industry feedback that almost every new GC issues an RFP. I’ve noted below 4 reasons why it’s a smart move for new GC’s to do this.

To Better Understand the Company’s Historical Legal Spend Management Process and Strategy

One of the things an RFP allows you to do is audit your historical legal spend strategy. While some companies have a system in place that may have captured this information, most new general counsel will not have that luxury. This is a good opportunity for general counsel to issue a Request for Information (“RFI”). What this means is that they issue a document to the current law firms letting them know that they will be issuing an RFP down the line and inviting them to be considered for an invite to the RFP by requesting historical data from law firms in areas such as:

• How much each firm has billed per year broken down by type of law/practice
• Descriptions and results derived in key matters
• Billing structures used (hourly/AFAs, etc)
• Pricing discounts
• Key relationship managers
• Areas of service/legal capabilities

To Ensure Your Company is Receiving the Most Value for Your Dollar

RFPs allow newly hired general counsel to revise your pricing strategy with outside counsel. A new general counsel will want to confirm that they are paying “market” rates and see how each firm’s rate card compares to peer firms. RFPs can also be used as a tool to help convert legal services from the hourly billing model to a more cost effective alternative fee arrangement (“AFA”). Volume discounts can also be incorporated via the RFP process to incentivize law firms to provide more value in exchange for a larger volume of work be seeing to the law firm. New general counsel have significant leverage at the onset of a new role because law firms will often be aggressive with pricing in order to keep the work from being moved to another provider that the GC may have a historical relationship with from her past company. General counsel often find savings of 20% or higher off total annual legal spend when an RFP is properly used with law firms.

To Set Consistent Outside Counsel Guidelines
One of the most under-looked benefits of issuing an RFP is that it allows the company to create a single set of guidelines and expectations that every law firm must agree to in order to be a preferred provider. These guidelines allow a new corporate counsel to ensure that for each law firm they use, they have agreed to abide by your preferred methods of client service, billing, staffing and to ensure they have the proper level of cyber security in place for your data. Many of the historical issues that the company may have had with outside counsel law firms should be addressed in the outside counsel guidelines that are included as part of the RFP process.

To Identify Ways to Incorporate Alternative Legal Service Providers
RFPs provide a great opportunity for general counsel to consider how and where alternative legal service providers might be able to be incorporated into their legal spend management strategy. General counsel can use the RFP as a tool to invite ALSPs to respond, but also to query law firms as to how they best incorporate or collaborate with them to reduce overall legal spend. Even if a company may not be ready to make the change, the RFP provides them the opportunity to learn about how these new companies are impacting the legal industry.

While there are many more reasons as to why an RFP can be a great tool for newly hired corporate counsel, the above 4 reasons highlight some of the top issues that an RFP can address. For more information on how RFPs are impacting the legal industry please visit our webinar on RFP Best Practices which was created for corporate counsel who may be looking to issue an RFP but who do not have an in-house legal operations or procurement team.

Matthew Prinn is a Principal with RFP Advisory Group.

Word out of the construction insurance brokerage community is that the construction insurance industry has entered a hard market, seemingly overnight, warns Jason Adams, senior counsel at Gibbs Giden.

In a LinkedIn post, he writes that property (i.e. builder’s risk), liability and wrap-up markets are all reacting unfavorably, resulting in higher premiums and decreased availability of coverage options.

He offers five key takeaways, such as the advice to lock in insurance quotes in now, before the underwriters are forced to increase the rates/restrict coverage, or pull the quotes entirely.

Read the article.

Boutique insurance recovery and entertainment firm Pasich LLP announced the addition of Peter A. Halprin, FCIArb, FAiADR. Halprin will serve as a partner.

Before joining Pasich LLP, Halprin was a shareholder in Anderson Kill P.C.’s New York office, where he focused on insurance recovery and served as deputy co-chair of the Cyber Insurance Recovery Practice.

In a release, the firm said Halprin represents commercial insureds in complex insurance coverage matters, with a particular focus on recovery strategies in relation to captive insurance, cyber crime, natural disasters, professional services, regulatory investigations, and technology disputes. Halprin has arbitrated, litigated, and mediated claims involving a broad range of insurance policies and recovered hundreds of millions of dollars in insurance proceeds for insureds. He advises clients under an array of forms and policies, including Boiler & Machinery, Builder’s Risk, Commercial Crime, Cyber, Directors & Officers, Employment Practices Liability, Errors & Omissions, Fidelity, General Liability, Kidnap & Ransom, Media Liability, Pollution Liability, Products Liability, Property, Technology E&O, Trade Credit, and Workers’ Compensation. Halprin also counsels U.S. and foreign companies in domestic and international arbitrations, including both ad hoc (ARIAS, Bermuda Form, London) and institutional (AAA, ICC, ICDR, JAMS, LCIA) arbitration forums. He has served as a party-appointed arbitrator and as sole arbitrator.

Halprin is a member of the AAA National Roster of Arbitrators. He has been recognized annually as a Super Lawyers New York Metro Rising Star for Insurance Coverage since 2013.

Four partners in Bradley Arant Boult Cummings LLP — Leigh Anne Hodge, Lela M. Hollabaugh, Angela Holt, and Kimberly B. Martin — have been named to Benchmark Litigation’s Top 250 Women in Litigation 2019.

Ina release, the firm said Hodge, a member of Bradley’s Healthcare Practice Group and assistant leader of the firm’s Litigation Practice Group, represents clients in the healthcare industry in regional and national engagements. She represents and counsels clients in the healthcare industry in product liability litigation, medical malpractice litigation, peer review and staff privileges matters, administrative hearings before licensure board, ERISA litigation, Medicare Advantage plan litigation, managed care litigation, insurance disputes, and insurance fraud cases. Hodge is based in Bradley’s Birmingham office.

Managing partner of Bradley’s Nashville, Tenn., office, Hollabaugh has served as the lead trial lawyer in more than a dozen jury trials, as well as more than two dozen bench trials, arbitrations and administrative hearings. She advises leading natural gas pipeline companies and other infrastructure clients on issues involving location, land acquisition, construction, and operations. She also represents leading pharmaceutical, medical device and other manufacturers in matters ranging from individual lawsuits to mass tort cases around the country.

Based in Bradley’s Huntsville, Ala., office, Holt is a registered patent agent and a member of the firm’s Intellectual Property Practice Group. She focuses her practice on litigation involving intellectual property, commercial and business issues, and high‐technology issues. Her cases have involved patents, copyrights, trademarks, trade secrets, government contracting disputes (including bid protests), domain‐name disputes, breach of contract, employee disputes, and restrictive covenants. She has experience prosecuting patent, copyright, and trademark applications before the U.S. Patent and Trademark Office and the U.S. Copyright Office. She also has litigated many inter partes trademark opposition proceedings before the Trademark Trial and Appeal Board.

Based in Bradley’s Huntsville office, Martin focuses her practice on general litigation with an emphasis on medical device and pharmaceutical products liability litigation, as well as white collar matters and False Claims Act litigation. She has tried cases in state and federal court. Most recently, she served as trial counsel successfully defending a nationwide hospice provider in a three-month False Claim Act trial brought by the U.S. Department of Justice. Martin serves as chair of Bradley’s Litigation Practice Group and has represented multi-national pharmaceutical and medical device manufacturers in litigation across the country.

Now in its eighth edition, the Top 250 Women in Litigation determines honorees through research of litigators’ professional activities as well as client feedback from surveys and individual interviews. According to Benchmark Litigation, “These women have earned their place amongst the leading female litigators by participating in some of the most impactful litigation matters in recent history as well as by earning the hard-won respect of their peers and clients.”

The American Bar Association’s first annual profile of the legal profession shows that lawyers’ income grew slower than inflation from 2017 to 2018.

The average lawyer’s salary rose 1.6 percent, which is a little lower than the 2.1 percent rate of inflation for the same period, reports Bloomberg Law in a summary of the ABA profile.

The report found that the average lawyer earned $144,230 last year, making less than dentists, who earned $180,590 on average, but more than physicists, who made $125,280, according to the Bloomberg summary by Melissa Heelan Stanzione.

The study also revealed the pervasiveness of stress, anxiety, and substance abuse in the profession. “Recent studies show that lawyers struggle with these problems at levels substantially higher than the general population and other highly educated professionals,” the ABA report said.

Read the Bloomberg Law article.

The U.S. firearms industry is facing a different kind of existential threat: liability to shooting victims, surmises Alison Frankel of Reuters.

She based that statement on the evidence of a petition filed Friday by Remington Arms, maker of the Bushmaster version of the AR-15 rifle that was used to kill 20 small children in Sandy Hook.

“Remington’s lawyers at Baker Botts asked the Supreme Court to grant review of a 2019 ruling in which the Connecticut Supreme Court held that Sandy Hook victims’ families can move forward with a suit attempting to hold Remington responsible for marketing and promoting a military-style weapon to civilians bent on executing campaigns of violence,” she writes.

“If the Supreme Court doesn’t step in, Remington said, firearms makers will face “a flood of lawsuits nationwide” that will subject them to “crippling litigation burdens.”

Read the Reuters article.

Bloomberg Law reports that Fifth Third Mortgage Co. beat an appeal by an attorney found personally liable for his role in a mortgage fraud scheme.

Ira Kaufman argued the district court erred in finding him personally liable for aiding the fraud in his capacity as owner of Traditional Title Co., LLC, because the Illinois Limited Liability Company Act shields individuals for liability for wrongs committed in their capacity as members of an LLC, writes Bloomberg’s Julie Steinberg.

“But he was sued in his individual capacity, the appeals court said. The LLC law doesn’t shield him here because he was found liable for his individual acts, the Seventh Circuit said Aug. 9,” according to Steinberg.

Read the Bloomberg Law article.

The U.S. Bankruptcy Court for the Northern District of California held that it has exclusive jurisdiction over the rejection of wholesale power-purchase agreements, reports Holland & Hart in an article written by Risa Wolf-Smith.

The court also found that the Federal Energy Regulatory Commission has no such jurisdiction and any determinations by FERC to the contrary would be void.

“While the decision might not be surprising to most bankruptcy practitioners, the proposition that FERC has no jurisdiction over the breach or modification of a power-purchase agreement is not only shocking to energy practitioners, but contrary to well-established authority in the energy arena,” writes Wolf-Smith.

Read the article.

Dan Harris, a founder of Harris Bricken and lead writer of the China Law Blog, discusses why he sometimes has to explain to  companies why he never does “template” manufacturing agreements anywhere in the world and why they should not want such an agreement.

The blog post includes part of an email a lawyer in his firm wrote to an international manufacturer, illustrating why an off-the-shelf manufacturing cannot work and makes no sense, even in a rush situation.

Read the article.

A post on the website of Mackay, Caswell & Callahan discusses the basics of drafting contracts associated with Section 1031 exchanges.

The author explains that this section in the tax code allows taxpayers to use borrowed tax money to purchase more investment or business property.

The article covers the required elements in the exchange agreement, the differences between these agreements and qualified exchange accommodation agreements, assignability, the cooperation clause and release of liability, compliance with receipt requirements, and more.

Read the article.

Three court cases reveal the importance of ensuring that contracts for an enterprise resource planning software system and other digital transformations be carefully negotiated, writes Marcus Harris in Taft’s Technology Insights blog.

It’s important to remove the possibility that a lawsuit over a failure can be blocked by seemingly harmless clauses that vendors and integrators insert as a matter of routine in their template agreements, he explains.

“Never sign the vendor’s or integrator’s template contract without negotiating and redrafting key provisions – even the boilerplate ones,” Harris advises. “Failing to do so may restrict your ability to sue for damages in the event of a failure.”

Read the article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “How Late Is Too Late? Setting the Timeline for Patent Protection,” featuring Fitch Even attorneys Mark A. Borsos and Vincent R. Meyer.

The event will be on Thursday, August 29, 2019, at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT. It will also be available as an on-demand webinar after the presentation.

Patent considerations do not always align with commercial realities. Although pursuing patent protection as early as possible is generally preferred, at times product development, financial issues, and other factors get in the way. In some circumstances, inventors do not even think about patenting an invention until they are sure that their idea is practical and there is sufficient commercial interest to warrant investing the necessary time and resources into reducing the invention to practice. This webinar will explore considerations affecting the timing of patent filings and what to do if an inventor’s prior actions have potentially put their patent rights in jeopardy.

During this webinar, presenters will discuss the following:

• Supreme Court and Federal Circuit decisions regarding statutory bars
• When an invention is “ready for patenting”
• Potential scenarios that could endanger patent rights
• Factors that may weigh for and against patentability once an invention has been disclosed or offered for sale
• Strategies for coordinating patent filings with development efforts

Register for the webinar.