Trump & Trademarks: Managing Leadership Transition at Law Firms & What Not To Do

Speaking of the recent election, Jess Collen of Forbes, wrote, “If the candidates in an election between a former IP lawyer and a king of brand names don’t talk about trademarks in a campaign, no one ever will.”

Apparently, no one ever will. But that doesn’t mean that Mr. Trump won’t pull an ace from his sleeve during his presidency.

Trump, or at least his company, owns many trademarks. In addition, Trump has a reputation for being litigious.

Forbes alleges that there are likely more than one hundred existing federal registrations to Donald Trump and/or his companies. It might make businesses wonder if Trump is in favor of reorganizing the U.S. Patent and Trademark Office, or if he is happy with his current cache.

We will have a President who is hyper-sensitive to the value of brand names. Efforts by the courts, legislature or government agencies to lessen those protections will not find a receptive audience in the White House,” concludes Collen for Forbes.

“The incoming President may even argue that his success is built entirely on the fame of his marks. Will that matter?” 

Trademark law is not the only reason businesses are cautiously reacting to a Trump victory.

The pharmaceutical industry, where patent law is highly influential, has been especially tight-lipped in their reaction. Sucampo Pharmaceuticals (SCMP.O), which increased by roughly 31 percent after it raised its full-year sales forecast, was sure not to rock the boat of its shareholders this week, reports Reuters.

“Obviously Hillary Clinton’s agenda was much more well-articulated,” said Chief Executive Officer Peter Greenleaf about Clinton’s promise to regulate prices in the pharmaceutical industry.

“I will be interested to see what we learn as Mr. Trump takes office and we learn more about what his agenda is going to be for the industry.” 

Whether it is as a Presidential leader or law firm one, it is important to articulate a plan of succession. America’s biggest loss at a Trump win is the fact that the President-elect’s policies have not been specifically laid out. In fact, nobody knows what to expect.

In fact, a Trump win fueled a “violent reaction” in the bond market—spooked by Trump’s vague rhetoric calling for massive infrastructure spending and tax cuts, reports CNN Money.

Investors are worried—and confused.

Clients are often concerned for the future when a law firm partner steps down. In most firms, a minimum of 20 to 30 percent of a firm’s total revenue is controlled by partners over the age of 60; naturally, when those partners retire, it puts the business—and its clients—at risk.

Client relationships are your most valuable assets. But far too many firms neglect to plan for the inevitable retirement of senior partners.

Not only should law firms plan for the eventual retirement of senior partners, it should provide to clients detailed answers for the following questions:

• Who determines whether clients need to be transitioned?
• Who determines when clients need to be transitioned?
• Who determines how clients should be transitioned?
• When to tell the members of the firm (and clients) that a significant rainmaker will be reducing his or her active involvement in the firm?
• How to select the most appropriate successors?

If you are a law firm manager and your firm has no such plan in place, take The Center For Competitive Management’s live webinar, “Transitioning Partners and Client Transfers: Guide to Retaining Key Clients When Partners Retire,” on Thursday, December 1st, 2016, from 2:00pm – 3:15pm Eastern (EDT).

This essential webinar will explain (1) how to make client transfer decisions for individual partners as they transition to retirement; and (2) how smart firms can prepare for issues associated with senior-level partners’ departure, before a client crisis occurs.

The stock market may not have fully recovered from a Trump victory, but your firm can protect its assets and clients from experiencing a similarly volatile leadership transition.

-WB

Twitter Nightmares: Mitigating Social Media Risk & Compliance For Employers

This week, Bloomberg reported that Snapchat’s daily active users, at 150 million, had surpassed that of Twitter. Twitter doesn’t disclose its number of daily active users (which is estimated at around 140 million daily active users by external surveyors), so it has yet to confirm the metric. Nevertheless, major business headlines seem concerned; Forbes wrote today, “Is Snapchat Threatening Twitter?”

And, it’s enough for litigators to realize that Twitter, with a whopping 310 million monthly users, like other social media sites, makes up an important market.

From safety to theft to libel, social media is hotbed of lawsuits.

Just today it was announced that social media mogul Mark Zuckerberg’s Twitter and Pinterest pages were compromised after a hacker or hacking group named “OurMine Team” temporarily pirated Facebook founder Mark Zuckerberg’s accounts.

Zuckerberg, who hasn’t tweeted since 2012, apparently sent a tweet today reading, “Hey, [Mark Zuckerberg], You were in [the] Linkedin Database with the password ‘dadada’! DM for proof.”

LinkedIn settled a consolidated class action lawsuit stemming from a June 2012 data breach that compromised 6.5 million hashed passwords in 2014, for which we can only assume Zuckerberg was victim. It has since been required to implement data security protocols using the industry standard encryption methods of salting and hashing for at least five years.

This is not the first time Twitter has made the news (or the docket).

Back in 2009, Amanda Bonnen took part in the first ever twitter-related lawsuit. In it, Horizon Realty Group contended that Bonnen defamed Horizon by tweeting to her friends about the apartment she rented from them, “You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s ok.” Horizon alleged this was libel and demanded at least $50,000. Eventually Horizon’s suit was dismissed on the grounds the tweet was too vague to meet the definition of libel.

Since then, tweets have made up a major concern for companies. Reputation and revenue are on the line in 40 characters or less.

In a similar incident, Chipotle was recently sued for firing employee, James Kenney. The 38-year-old war veteran sent a negative comment about the restaurant via Twitter. According to Philadelphia Magazine, Kennedy’s tweet read, “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?”

Unfortunately for the food chain, U.S. Labor Laws protect employees’ rights to free speech, and a Philadelphia judge ruled that Chipotle needed to rehire Kennedy—with back pay.

Employees’ social media activities frequently play an important role in workplace investigations. Yet, when investigating harassment, discrimination or other employee-related claims employers must be aware of specific laws that restrict employers’ requests (and access to) an employee’s social media accounts and posts.

Fifteen states have passed laws that limit the employer’s authority over employees’ social media accounts, and many more are not far behind. No matter how serious the investigation, one peek at an employee’s social media account could become a costly, non-compliance nightmare.

If your firm doesn’t already know best practice solutions for conducting workplace investigations legally and effectively, now is the time.

Attend the Center for Competitive Management’s audio conference, “Workplace Investigations: Using Social Media Legally & Effectively while Limiting Risk” on Tuesday, June 7, 2016 from 2:00 PM to 3:15 PM Eastern and learn: 

• Key restrictions under state social media laws
• Legal pitfalls to avoid when conducting discrimination investigations in the workplace
• How to conduct compliant discrimination/harassment/threat/defamation investigations
• When you can and cannot ask for an employee’s passwords
• What employee conduct the National Labor Relations Board (NLRB) protects and the finer points of the guidelines it has provided.
• Employee privacy dangers and what defines a ‘Reasonable Expectation of Privacy’
• Discussion of cases where social media was misused
• Broader implications for using social media in applicant screening/hiring
• What multi-state employers must consider when drafting social media policies for investigations
• Steps to take right away to be sure your current social media and investigation practices and policies are compliant 

And afterward, go ahead and tweet about it. You’re covered.

 

-WB

A Law Firm’s Guide To Record Retention & Apple’s Fight Against Hacking Killer’s Phone By Court Order

It could be argued that nothing changed American culture more than the cell phone. Just look at TV shows, cartoons, news articles that talk about Millennials, perpetually on their phones. At work, policies about cell phones must be erected. And, now, it’s a point of concern for privacy when it comes to search and seizure by police.

“I had a case where a young man was arrested for videotaping his friend being arrested outside a club in NYC. Police seized his phone. We were afraid that once they possessed the phone, the video would mysteriously disappear since it showed police acting without probable cause and then arresting my client just for videotaping the incident,” Toni Messina in the article, “Criminally Yours: Cops Got Your Phone?” for the Above The Law blog.

“Luckily, because we were dealing with an inexperienced prosecutor, we were able to go One Police Plaza ourselves to get the phone back so it went through no intermediaries, supervisors, or other enforcement personnel. The video was intact, and now forms the basis of a civil law suit for wrongful arrest.”

Messina points out that no matter the level of crime for which you are arrested, police can search your person, your things. Sure, police are supposed to have probable cause, but as Messina’s story previously points out, “probable cause” is relative.

Once you’re actually in custody, your rights to guard information on your cell phone private erode even more. Once arrested, the police can get a search warrant to search the contents of your cell phone—including all those fancy apps with personal data you used for online banking, dating, and working. Your photos and videos are now free game for viewing.

All this with just a simple order from a judge.

Which is exactly what happened with the recent federal judge’s order forcing Apple to help the FBI break into the iPhone of San Bernardino killer Syed Farook. Except Apple CEO Tim Cook opposed the order.

In a letter, Cook wrote, “In the wrong hands, this software [to hack the iPhone]—which does not exist today—would have the potential to unlock any iPhone in someone’s physical possession.”

Cook’s letter emphasized that government overreached by asking for “a backdoor to the iPhone,” reports Greg Botelho, Lorenza Brascia, and Michael Martinez in “Anger, praise for Apple for rebuffing FBI over San Bernardino killer’s phone,” an article for CNN.

How much can the government compel companies to give up? What about citizens?

“All this is why compelling Apple to provide the key to open their phone is tricky,” concludes Messina in the Above The Law article.

“No one’s in favor of terrorism, but that doesn’t mean we should succumb to greater police surveillance, privacy invasion, and forced revelation of data that would otherwise be confidential in our lives.”

This leads—even in a just a small way—to your law firm’s personal records.

Do you know how long to keep records, how they should be stored, and who should have access to various files?

Consistent management of documents and data reduces litigation exposure and regulatory criticism. However, conquering the challenges you encounter in managing, retaining, and disposing information on the road to legal compliance is more complicated than ever.

In fact, as the number of laws and risks related to governing records management continues to increase, it becomes even more paramount that organizations and their counsel brush up on its obligations—legal and moral.

Furthermore, with all companies under scrutiny for how they treat the privacy of employees or clients, law firms should think twice about its practices.

“The road to hell is paved with good intentions,” Messina reminds us of the old adage.

“Privacy is too valuable a right, and the fishing expedition [by the government] such a search would entail [by Apple] isn’t worth the price.”

-WB

Learn more about the complex universe of document retention rules and practicalities in C4CM‘s webinar, “Save It, Shred It, Delete It? Corporate Counsel’s Guide to Record Retention,” on Thursday, March 17, 2016 from 2:00 PM To 3:15 Eastern Standard time.

Popping Pills: America’s Worst Epidemic & Legally Addressing The Misuse Of Prescription Drugs At Work

Although the United States makes up about 5 percent of the world’s population, it consumes more than 75 percent of the world’s prescription drugs, according to the 2011 UN World Drug Report. This statistic may bring up a few names from your childhood: Elvis Presley, Jim Morrison, Judy Garland; or, more recently, Michael Jackson, Health Ledger, Chris Farley.

But, famous actors and singers are not the only victims of prescription drug abuse. It’s the 16-year old student who got addicted to pain pills after a surgery, the suburban father mixing a dangerous cocktail of painkillers and tranquilizers, or a Michigan mother hooked on her daughter’s Adderall prescription.

A new documentary takes a sobering look at what some call America’s worst epidemic. Prescription drug addiction affects men, women and children of all walks of life. Called “’Prescription Thugs”, this movie is director Chris Bell’s follow-up to his last documentary, “Bigger, Stronger, Faster,” which showed the harrowing role of performance-enhancing drugs in sports.

“The subject kind of picked me,” explains Bell to FoxNews.com’s Dr. Manny Alvarez.

“My older brother died from a prescription drug, basically, an overdose—his body gave out from all the prescription drugs he was doing. I wanted to find some answers why that happened to him.”

At risk of revealing spoilers, at one point Bell reveals his own silent struggle with prescription painkiller addiction.

“I was never an addict, I was never addicted to anything. I was always somebody who was into sports. I was a power lifter… I was excited to go to the gym every day,” Bell said.

“But once I was hurt, and on these painkillers, everything started going slowly in reverse.”

But seeking help is not easy. At one point, Bell was taking up to 20 to 30 pain pills per day before he considered reaching out.

“It’s something that you have to come to terms with yourself, it’s something that you have to want to quit and want to get off of,” Bell said.

Prescription drug abuse is the nation’s fastest-growing drug problem and is now classified as an epidemic by the CDC. As many as 52 million Americans, over the age of 12, have used prescription drugs non-medically in their lifetime. Even more shocking, 1 million people have used them non-medically in the past month.

The use and abuse of medications in the workplace is a serious issue. Yet unlike illicit drugs, for which most U.S. employers can test easily and legally, prescription medications present a number of challenges to organizations.

For one, the mere presence of these substances in a drug test does not necessarily constitute an offense, unlike with illegal drugs. And many employees using these medications are protected by the ADA, which limits an organization’s ability to question its employees’ use of such drugs.

This is a thorny area, where federal (ADA and FMLA) and state laws collide. Unfortunately, most employers do not have the fortitude and risk tolerance to enter the storm, even when they know it’s a major liability.

Like Bell and his own addiction, awareness is often the first step. Protect your employees—and your firm’s liability—by taking The Center For Competitive Management’s webinar, “Popping Pills: Legally Addressing Employee Use & Misuse of Prescription Medications in the Workplace,” on Tuesday, February 23, 2016 from 2:00 PM to 3:15 PM Eastern.

This online course explores best practice strategies for handling this challenging situation both tactfully and legally. You’ll also get the answers to such need-to-know questions as:

• How should employers address the use of prescription medications by employees in their drug and alcohol policies (if at all)?
• What should an employer do if an employee cannot perform the job safely while using prescription medications?
• Can employers conduct drug testing for prescription medications and what are the pitfalls of doing so?
• What are an employer’s obligations when employees become addicted to prescription medications?
• Can employees be drug tested periodically after completing drug rehabilitation?
• Should medical marijuana be treated like other prescription medications?
• Must employers tolerate the use of medical or recreational marijuana in the states where it is legal?

“It’s tough, it’s a disease where it’s a behavior problem… it’s a brain chemistry problem… and the only way to fix it is to work on those behaviors and sort of modify those behaviors,” explains Bell.

Like people, a law firm firm must acknowledge what’s at stake before it can seek help. Make that happen for your employees today.

 

-WB

Stormtrooper Arrested For Costume Choice & Ways Your Firm Can Weather The Storm Of Writing & Enforcing Legal and Effective Dress Code Policies

The new Star Wars movie may haven broken records, but that doesn’t mean fans of the film can break the law in celebration. This week, Lynn, MA, police officers arrested a man dressed in a stormtrooper costume for loitering within 1,000 feet of an elementary school and causing a disturbance.

His crime? Over-enthusiasm for the film, apparently, as George Cross, 40, claims to have recently bought the outfit and was simply eager to share it with the little ones.

The force wasn’t strong enough with Cross, however, as police were quickly notified that “someone was dressed up in that outfit with a gun—a fake gun,” explained Lynn Police Lieutenant Rick Donnelly, reports the Boston Globe.

“Parents could not go into the school, and the principal delayed everything because she was concerned with the party outside,” Donnelly said to the Boston Globe.

“He had no reason to be there, didn’t know anyone at the school, and he was hanging out front. In today’s day and age, some of the kids were scared and a lot of parents were concerned. He caused quite a disturbance.”

A poor decision based on good intentions, most would say. But should the law really get involved in such trivial matters of dress?

Even in the office place, policy plays an important role. One of the fastest-growing areas of litigation today pertains to poorly written or vague dress code.

In fact, plaintiffs are using traditional discrimination concepts to push the envelope in making claims of lifestyle discrimination based upon sexual orientation, gender-identity, physical appearance, and other borderline privacy or personal issues.

Who draws the line between personal expression and inappropriate dress?

• Can you require an employee to hide their tattoos?
• Can you ban headwear if it’s part of someone’s personal expression?
• Can you legally require an employee to take out their tongue ring during work hours?
• Does a dress code mandating facial hair and other grooming policies invite a race discrimination claim?
• What about dress codes related to safety rules?

Does your law firm know the answer to these simple questions? Does your law firm?

If not, you and your clients may be opening yourselves up to costly litigation.

Take C4CM’s audio course “Tutus, Turbans and Tattoos: Writing and Enforcing a Legal and Effective Dress Code Policy,” on Tuesday, January 12, 2016, from 2:00PM To 3:15PM EST.

This information-packed webinar explores the tools, techniques and knowledge you need to confidently handle dress code problems, and fashion a dress code policy that’s effective and defensible.

And, if you just don’t want to bother giving it a second thought like that stormtrooper in Lynn? Well, may the force be with you.

-WB

Drug Testing In The Workplace? The Tradeoff Between Employee Productivity, Firm Cost & Future Lawsuits

It’s been a quarter of a century since the federal Drug-Free Workplace Act was passed, which created requirements for federal government workers and contractors. Today, more than a third of private employers have drug-testing policies, reports NPR. However, with marijuana now legal in two states and approved for medical use in nearly half, what is the future for U.S. drug policies?

Lara Makinen, legislative affairs director in Colorado for the Society for Human Resource Management, says employers are getting a very mixed message.

“We’re being told, ‘Keep your policy as it is, but proceed with caution, because if people are fired…” said Makinen to NPR.

“We probably will see lawsuits.'”

But lawsuits aren’t new to the drug-testing industry.

In 2011, a federal judge issued a temporary injunction against the enforcement of a divisive Florida law that requires “suspicionless drug testing” for all welfare applicants before distributing benefits.

The American Civil Liberties Union (ACLU) filed on behalf of a single father in Orlando a lawsuit that alleges Florida’s law violates Fourth Amendment rights for safeguard against unreasonable search and seizure.

Enacted in May 2011, the new law applies to any adult applying to the federal Temporary Assistance for Needy Families program. Those who qualify for assistance are reimbursed for the test in their welfare benefits.

Florida Gov. Rick Scott was one of the law’s biggest advocates, claiming the law would evoke “personal accountability.” Scott also said it would be “unfair for Florida taxpayers to subsidize drug addiction,” quotes John Couwels in an article for CNN.

Governments are not alone in believing individuals should be held personally accountable for abusing illicit drugs, which is why polls show over half of employers in America (57%) still conduct drug tests. Some agencies report this number is on the rise.

Obviously, law firms, like all businesses, aspire for a drug-free workplace. But they also aspire for a productive one. And, it turns out, whether because they represent a level of distrust on the part of the firm or because employees dislike the violation of their privacy, drug testing decreases productivity in the workplace.

A recent study investigated 63 “hightech” firms in the computer equipment and data processing and found that drug testing had “reduced rather than enhanced productivity,” reports the ACLU. Firms with pre-employment testing, versus those with no drug testing at all, scored 16 percent lower on productivity measures. Firms with both pre-employment and random testing were 29 percent less productive than those companies without drug tests.

In addition, drug testing is expensive.

In 1990, the federal government spent $11.7 million to test selected workers in 38 federal agencies. However, of the roughly 29,000 tests taken, only 153 (.5%) were positive for illicit substances. The cost of finding a single drug user—and in this case, over half were moderate, occasional users of marijuana—amounted to $77,000, according to the ACLU. Not to mention, among these employees, there’s always a risk of a false positive.

These reasons might explain why the percentage of employers with testing programs has dropped steadily over time, from 81 percent in 1996 to 62 percent in 2004, according to the American Management Association, cited by TIME. The trend is expected to continue.

Drug testing is no guarantee that you’ll actually catch a drug user.

In Colorado, for example, which has legalized pot, the standard urine test most commonly used in employer drug testing measures the presence of THC—a psychoactive compound in marijuana. But this compound stays in the body for days, weeks, and sometimes longer. So a positive marijuana test may not, necessarily, mean the person taking the test is high on the job. It may not even mean the user has taken the drug recently. Read more about this type of situation on NPR’s story, “Colorado Case Puts Workplace Drug Policies To The Test.”

In the end, if your firm has concerns, there are myriad other more effective and less invasive means to encourage a drug-free workplace:

Substance Abuse Programs And Counseling. Make sure substance abuse, mental health, and counseling programs programs are covered by employer-paid medical insurance. When an employee requests a mental health holiday, accept it.

Preventative and remedial measures to permanently eliminate addiction is far better for the firm and its associate than just identifying such a person, and putting them out on the street.

Comprehensive Reference Checks. In-depth reference checks of potential future employees are equally effective as drug testing. It’s more than likely that a previous employer has noticed patterns of abuse, or has an opinion regarding that employee’s professional conduct. Ask to speak with the employee’s former supervisor, as opposed to the Human Resources representative. Don’t be afraid to ask blunt (but not discriminatory) questions.

Workplace Training and Employee Investment. Enroll your law firm partners and administrators in programs geared toward the identification of drug users in the workplace. These programs also teach remedial actions to confront and appropriately advise these users.

In addition, instead of corporate retreats or costly drug tests, spend money on employee wellness programs—including fitness programs, healthy meals, or in-house massages.

Reducing stress in the office will keep your employees from self-medicating during those long work hours and client meetings. Plus, it sends the opposite message, from mistrust, as with drug tests, to one of support and advocacy.

-WB

Learn how to transform your tired, disengaged workforce into a motivated team of top-notch employees — in any economic climate. By participating in C4CM’s in-depth audio conference “10 Critical Methods to Increase Employee Engagement and Improve Job Satisfaction.”

Reach, Engagement & Shareability: Metrics That Matter For Law Firm Social Media & Attracting New Clients

The Internet age. Upside, you get to work from home when you don’t feel like going to the office. Downside, you have to work at home when there’s a blizzard.

Alleviate your workload through social media, if not through a snow day (due to Juno’s underwhelming presence).

Social media has empowered businesses and consumers alike. Individuals have never held so much influence in changing the world with just one click of a button. At the same time, businesses are empowered to advertise their products and services to a market much larger than before.

At first, law firms were a bit slow to take advantage of digital days. Not anymore. Now it’s necessary to task young associates with managing your Facebook page, Twitter account, and—hopefully—blog posts, or risk your bottom line by falling behind.

Here’s how your firm gets noticed:

1. Publish your posts on media aggregators.

Upside: Websites like Reddit, Shoutwire, and Digg allow individuals to submit links to websites, blog posts, or any Internet-based page. The community of readers then votes up (or down) the link based on a review of its content. Create flashy titles and you’ll likely see in a flash the rise of your readership.

Downside: Comments by readers can be harsh. The anonymity of the Internet allows people to wriste down criticisms (NSFW) that may end up permanently cached on the World Wide Web.

2. Add website sharing buttons.

Upside: Your firm’s website should have links to all of your social media accounts, as well as ways to share your posts. Programs like “Click to Tweet” make this easy.

Downside: Your firm may need a small amount of Internet savvy to create buttons on your website and restore broken links.

3. Create interesting content.

Upside: Remember to write thoughtful arguments accompanied with eye-catching photos. There’s so much competition already when it comes to online content, your firm’s additions must stand out.

Downside: Yes, this requires a little more time and thought to write captivating posts and tweets. Consumers would rather see the “Yeti Seen Prowling the Streets Near Boston” than your tips about hiring Of Counsel at your company.

4. Do your research.

Upside: If you know what time your readers are logging on then you’ll know the best time to publish your posts. Maybe you’re getting a lot of hits first thing in the morning. People are remiss to start work at 8am and decide to read legal news or browse the web. With this knowledge, you can now set your social media to publish at certain times to target your audience.

Downside: Due diligence on your casework is no longer enough. Time to do due diligence on your business development, too.

5. Crossover multiple social media platforms.

Upside: Happy you finally mastered the art of blogging for your firm? Time to summarize that blog post on your LinkedIn and Facebook page and compile a 140-character hook for your Twitter account. Don’t be afraid to repeat the same ideas on different mediums.

Downside: Now you’ll have to memorize more usernames and passwords. More social media means more potential backlash.

In the end, it’s possible to get your firm’s name and reputation out there. In fact, the Social Law Firm Index, developed by the Above The Law Blog has a formula that measures social-media metrics. It looks at:

Reach. Represents the total number of unique people who had an opportunity to see the firm’s content. Reach would include number of followers on Twitter and/or LinkedIn, company page likes on Facebook, and followers or subscribers on other social media channels (for example: YouTube channel subscribers or Slideshare followers).

Engagement. Measures the actual interaction with the firm’s content via social media. This would include comments or likes (for status updates) on Facebook, RTs or mentions on Twitter, and likes on LinkedIn.

Owned Media. An assessment of the firm’s own site (including microsites) based on, among other things, the proportion of non-promotional content, frequency of updates, and shareability of content.

So, what conclusions were drawn from this study?

First, size matters. If you’re a small law firm, it’s likely that your reach will never meet that of a Top-20 firm. See, for example, the Top 10 ranking in this Social Law Firm Index here.

But, there’s still hope for small firms. There was a much lower correlation between firm size and engagement. That means small firms can still have high interaction by potential clients in terms of likes (for status updates) on Facebook and LinkedIn, as well as retweets on Twitter.

It’s quality—not quantity—that matters.

The next finding is that from 2013 to 2014, the largest U.S. firms improved both the reach and audience engagement levels by more than 60 percent, on average. That means firms are getting more savvy about their social media and—more importantly—people are listening.

For law firms looking for reasons why they should spend time and money on social media, this finding is especially pertinent. Consumers of legal services are reaching out via social media. Facebook, LinkedIn, blog posts, and Twitter are helping reach new clients at an increasing rate.

Finally, the last important finding worth mentioning is that many firms that were lagging behind in 2013 moved to catch up with market leaders. And this was achieved at rates much more significant than the improvement among already active firms.

What does this mean for you? There’s still time to push social media at your law firm.

Your firm won’t regret that embarrassing Tweet sent out to its thousands of followers; it will only regret not tweeting at all.

How can you maximize the potential of social media while ensuring the appropriate use of intellectual property and customer information? What can counsel do to proactively protect brands from infringement by social networking website users?

As more and more businesses incorporate social media into the promotion of their products and services, they’re also finding that unauthorized use of their trademarks, service marks and trade names are emerging through these same channels.

In fact, a global infringement that once took weeks, months or years to occur, can now take shape as fast as someone can hit “enter” on their keyboard. And, once the infringement is out there in cyberspace, there’s no way of knowing if the offending material is ever truly deleted.

Take the Center for Competitive Management’s audio course, “Copyright and Trademark Enforcement in Social Media: Policing and Protecting Against Brand Infringement,” to learn more.

-WB

Do Workplace Dating Policies Reduce Risk? An Unorthodox Solution By Philosopher Blaise Pascal.

When Blaise Pascal was just a teenager in seventeenth century France, he invented the first mechanical calculator.

Son of a tax collector in Rouen, perhaps Pascal’s interest in numbers and organization is not that unusual.

But Pascal applied his talent in mathematics in a variety of surprising ways.

At age 16, Pascal had already written a treatise on projective geometry and worked with Pierre de Fermat to develop theories in probability theory. Pascal was also an accomplished physicist.

However, Pascal is most likely remembered for his thoughts (Pensées) as a philosopher and mystic.

This month, albeit roughly 360 years earlier, Pascal had a mystical experience. He wrote down the date and from that point forward, always kept it on his person. The date, November 23, 1654, was found sewn into the coat that he was wearing on his death, writes the Guttenberg Project.

This conversion profoundly influenced Pascal’s future research. And, still with logic and statistics in mind, Pascal started to argue the existence of God.

The argument, called Pascal’s Wager, posits that humans all bet with their lives either that God exists or does not exist—imagine a statistical theory and its counterfactual.

Whether God does or does not exist—and assuming the infinite gain (heaven and reward) associated with the belief in God or infinite loss (hell and damnation) with the disbelief—Pascal claims a rational person should always live as though God exists. In the end, if God does not exist, such a person will risk minimal finite losses (certain pleasures, luxuries, etc.) whereas in the counterfactual case, such a person risks infinite perdition.

So, why are we discussing Pascal’s Wager? Well, lawyers, the same logic can be applied to the question: Do workplace dating policies reduce risk?

Office romances are highly pervasive.

“According to CareerBuilder’s 2012 annual office romance survey, 38 percent of respondents have dated a co-worker at least once in their career, and one-third of them ended up married,” writes a Workforce article.

Unfortunately, these office romances can lead to sexual harassment suits, claims of nepotism, and other liabilities for your firm.

Take a lesson from Above The Law reader whose windshield was smashed in by a colleague he dated (and whose chances of employment after his legal internship are now dubious at best). Define your workplace dating expectations and follow them yourself.

Whether it’s a zero-tolerance fire-able offence policy; a “love contract” where employees sign statements admitting an office relationship is consensual; or confidential disclosure where employees alert firm HR representatives of potential complications, define a policy. Circulate it. Enforce it.

Law firm professionals know best that there are always ways to shirk contractual obligations, terms of agreement, or policy requirements. But, implementing such policies is better than nothing at all and often works as a deterrent to litigation.

Think about Pascal’s Wager. If workplace dating policies don’t reduce legal liability risk, you’ve spent a minimal amount of time and effort implementing one.

However, if the liability does exist and policies deter or reduce this risk, then hammering out dating policies can substantially lower the costs of litigation.

-WB

Gossip about office romances? Learn how to cub this toxic talk with C4CM’s guide Effective Management of Workplace Gossip.

Need help drafting workplace policies? Bonus material includs sample social media politic and case studies.

David Beats Goliath In Patent Troll Lawsuit

Is there any hope for small start-up companies involved in patent troll litigation? Underdog company Newegg seems to think so. With a recent win against mega-giant Alcatel-Lucent, Newegg gives hope to the little guy facing large legal power in patent disputes.

“It is truly, truly tragic how the mighty have fallen,” says Chief Legal Officer Lee Cheng about the Alcatel-Lucent corporate trolling activity to ars technica.

In 2011, Alcatel-Lucent looked like it was dominating the e-commerce market. Not in market share, but in market power—the kind of muscle that beats its way to the top. After suing eight major retailers, as well as Intuit, Alcatel-Lucent had settled each suit, one by one.

Even though Kmart, QVC, Lands’ End, Zappos, Sears, and Amazon all eventually folded, Newegg (and Overstock.com) held out.

“It’s an operating company that happens to hold a patent,” said Cheng to ars. “But it does nothing at all to bring the benefit of that patent to society.”

On principle, Newegg pursued the case, and won. First at trial in Texas, then last Friday in Federal Circuit court appeal via summary affirmance. It took the judges just three days to uphold the Texas trial ruling.

Apparently Alcatel-Lucent was not earning $12 million from Newegg for nothing.

“These are the Bell Labs patents,” Cheng explains. “This company was once the pride of American innovation, a company that has roots going back to Alexander Graham Bell. And it ended up selling off its patents for a few bucks. What Alcatel-Lucent did was really offensive.”

Offensive in the strategy sense, as well as the moral stance.

Cheng refuses to let Alcatel-Lucent off the hook. He continues (via ars):

“They systematically sent thousands of letters out saying, ‘Hey, we own 27,000 patents, and here are some patents we think you infringe.’ They had a whole licensing group whose job was to monetize these patents, by threatening litigation and in some cases litigating. It didn’t actually matter if you did your own analysis and got back to them and said, ‘Hey guys, we actually think we don’t infringe.’ The response was something to the effect of, well, we have 27,000 patents—and you probably infringe something, so give us a licensing fee.”

It’s not just a message to patent trolls that companies are prepared to fight for their intellectual property; it’s also a message to attorneys that firms are capable of combatting these suits successfully. With just three days for summary judgment, patent troll suits can even be defeated within a reasonable timeframe.

For companies looking to legitimately protect their patents, Newegg’s experience is also a good lesson in boilerplate legal jargon. Sometimes it’s necessary to pay your lawyers to investigate individual patent disputes and customize letters to infringers. From small to large, companies are no longer afraid of legal threats to sue. In fact, many are looking for you to do just that.

Law firms and their corporate clients should work together on an IP strategy, where an offensive policy doesn’t have to be an offensive one.

Sometimes IP litigation seems more like slinging gunfights in the Wild West, as opposed to educated businessmen deliberating on the bench. For now, Newegg’s president in patent protection should keep bandits at bay.

-WB

Court Case To Decide Future Of FTC Regulation Of Firm Cyber Security Systems

America, in the 1800s, was filled with trusts. “Trusts” referred to giant businesses that controlled the lay of the land.

Think about the major economic drivers in the Wild West—railroads, oil steel—or other commodities—sugar, for example—and you’ll likely find a trust behind it. U.S. Steel and Standard Oil once ruled the supply, controlled the price, and generally monopolized the market in American in the nineteenth century.

The rich seemed only to get richer, which is why President Theodore Roosevelt sought to break up these trusts through legal action.

Teddy, with the help of Congress, soon passed The Sherman Act in 1890, which became the country’s oldest anti-trust law. In 1914, another anti-trust bill, the Clayton Act, was passed by Congress under President Woodrow Wilson. With it came the Federal Trade Commission, or FTC.

The FTC was an agency tasked to enforce anti-trust laws and regulate and oversee business practice to ensure fair and equitable competition.

More recently, the FTC started to work in conjunction with the Department of Justice to promote consumer protection and anti-competitive business practice.

The FTC’s professed mission, specifically, is to “prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process; and to accomplish this without unduly burdening legitimate business activity.”

The key players in trust regulation in Progressivist America could never envision the lack of trust consumers face today with the evolution of e-commerce. Today, the FTC’s mission of protection is being challenged on its home turf—in court.

Adding to the U.S.’s long history of anti-trust regulation, a case pending in the federal court for the District of New Jersey will decide whether or not the FTC has the right to oversee and regulate data security services provided to consumers by private firms.

Hotel conglomerate, Wyndham Worldwide Corporation, is challenging the authority of the FTC to enforce action against Wyndham and several of its subsidiary companies. The FTC’s action alleges Wyndham failed to secure the data and privacy of its customer accounts after a hacking incident claimed more than $10.6 million from Wyndham’s customers via fraudulent charges and the loss of information belonging to 500,000 individuals, according to the Westlaw Insider.

Deciding whether or not the FTC’s authority extends to oversight and regulation of the operations and other practices of private companies will definitely change the way firms can and will business. Audits to ensure firms have incorporated sufficient security measures are on the horizon, and fines for insufficient security measures would, then, be imminent.

And, although consumer protection and privacy concerns should be considered paramount to businesses, to what extent should the government be privy to the same concerns and information? Also, to what extent are businesses liable for implementing state-of-the-art cyber-protection software in the eyes of the law?

These days, breaches of online security—from cloud computing espionage to electronic spam to broken passwords (despite the alphanumeric complexity)—are common place.

The Wyndham case should certainly prompt law firms and the clients they represent to tighten those security belts before driving down the information superhighway—not just because it’s good sense and safe, but because it may soon be the law.

In our modern world, the Wyndham case serves as a gentle reminder for firms to be wiser about their computer security hardware and software, but also for governments to implement constitutional measures to find the source of this malware without violating the same privacy they seek to protect.

For more information about how to protect your firm, read “Cyber Attacks: Why Your Firm Is At Risk & How To Prevent Them.”

-WB

Read more about the history of the FTC in a fact sheet, here.