The Kelley Drye Brief - Winter 2021
February 12, 2021
The Kelley Drye Brief

 

Message From Kelley Drye's Chair   |   Resolutions and Recommendations   |   Upcoming Events   |   "The Best of" Podcast Playlist   |   Kelley Drye's Task Force on Racial Equality   |   Kelley Drye Book Breaks

 

Message from Kelley Drye's Chair

Dear Clients and Friends,

2020 was a year like no other. Jim Carr, Firm ChairIt was unpredictable, exhausting, and at times, it was incredibly trying. More than ever, we are grateful for your business, the opportunity to collaborate with you on complex legal matters, and our lawyers have been working tirelessly to address your legal needs while serving as your trusted legal advisors during such an unusual time.

Looking back at 2020 we have:
 
  • Developed and curated timely content related to the continuously changing legal and regulatory landscape as a result of COVID-19, producing content across multiple media;

  • Expanded our social media presence to Instagram (@KelleyDryeWarren) to engage with the legal community and offer a window into the Kelley Drye culture;

  • Elected eight new partners: Kim Carter, Melissa Gelade, Andrew Homer, Marty Krolewski, Jennifer Norkus, Paul Rosenthal, Rob Slack and Whitney Smith and welcomed new partner John Foote; and

  • Found ways to give back by:

    • Raising more than $200,000 through contributions made by Kelley Drye, and our lawyers and staff, to support organizations that provide training and employment solutions for young adults, advocate for criminal justice reform and racial justice, support public education and  help promote pathways out of poverty;

    • Raising more than $65,000 for Legal Aid of DC’s Making Justice Real Campaign, to support the organization’s efforts to help families and individuals facing urgent legal needs amidst the ongoing COVID-19 pandemic;

    • Remaining steadfast in our commitment across the firm to provide pro bono counsel, even while many courts and organizations were closed, working 8,770 pro bono hours on 40% more matters than we handled in 2019;

    • Working on community service projects such as packing toiletry kits for residents of a transitional housing unit, donating iPads and tutoring economically disadvantaged students in Washington, DC to support their remote learning, and purchasing holiday gifts for children in need.

We committed the firm to fight for racial justice and equality by joining more than 200 other firms in establishing the Law Firm Antiracism Alliance. As a member of this alliance, we are dedicating substantial pro bono resources to address systemic racism in society. In addition, the firm created the Task Force on Racial Equality to advance social justice and human rights and to build a stronger and more inclusive community at Kelley Drye. The Task Force focused  on the following four areas:
 
  • Internal education to promote self-awareness and self-examination;

  • Advocacy and legal support for racial justice;

  • Community action intended to end racial inequity; and

  • Charitable donations through an internal fundraising campaign. 

I am proud to see how the Kelley Drye community contributed to the goals of the Task Force by participating in discussions about race and the impact of racism on members of our community, volunteering, contributing to charitable organizations, and taking the time to learn about different perspectives. I invite you read more about the initiatives of the Task Force in this newsletter.

The start of a new year often leads us to make personal resolutions. I asked our lawyers to think about “business resolutions” that our clients might adopt to contribute to their success in 2021. Their recommendations follow, along with a roundup of upcoming events, our top podcasts of 2020, and more.

Thank you for providing us with the privilege to work with you in 2020, and may 2021 bring you good health, happiness and prosperity.

Best,
Jim Carr, Chair of Kelley Drye
 

Resolutions and Recommendations

Kelley Drye lawyers resolve to help our clients implement the following recommendations to achieve business goals in 2021.
 

Advertising Law

Monitor complaints. Although sometimes lawsuits and regulatory investigations come as a surprise, there are usually warning signs. Evidence presented in some of last year’s big cases shows that the companies had received a large number of complaints about the very issue over which they were later challenged. Although consumer complaints rarely tell the whole story, they can provide a warning of trouble to come. Monitoring  these complaints  can prevent them from escalating Christie Grymes Thompson, Chair, Advertising and Marketing Law Practice Group

Begin the process of updating your privacy practices to meet the requirements of the CPRA. California privacy law is slated to change once again. The California Privacy Rights Act (CPRA), adopted by ballot initiative, amends the California Consumer Privacy Act of 2018 (CCPA) to add new consumer rights, contractual obligations, restrictions on ad tech, and requirements for HR data. Although the law takes effect in two years’ time, we think this year will be critical for clients to begin the process of updating privacy practices. Alex Schneider, Associate, Privacy and Information Security Practice Group
 

Communications

Reduce illegal robocalls. Voice service providers long have supported the FCC’s ongoing efforts to target bad actors. All voice service providers can join the communications industry in implementing the STIR/SHAKEN call authentication framework by June 30 and develop an effective robocall mitigation program to prevent their customers from originating illegal robocalls. Steve Augustino, Chair, Communications Practice Group

Reduce the Digital Divide. Thanks to the new stimulus act, broadband providers have a unique opportunity to help close the Digital Divide by offering an Emergency Broadband Benefit discount of up to $50/month per eligible household receiving Internet access and up to $100 for a tablet or other device capable of helping low-income Americans connect to classrooms, jobs and telehealth. Clients have the opportunity to help make broadband more affordable by participating in this new program during the pandemic. John Heitmann, Partner, Communications Practice Group

Make IoT services more secure. Security has always been a top priority but with the passage of the IoT Cybersecurity Act of 2020, Internet of Things (IoT) manufacturers and service providers should feel a greater urgency to address security issues with their IoT devices and services. Clients should take reasonable measures to protect IoT devices and services from vulnerabilities and unauthorized access. Steve Augustino, Chair, Communications Practice Group
 

Corporate Predictions

Robust Dealmaking in 2021. When we look back at M&A activity since the start of the pandemic, we see a sharp decline for the first three months of 2020, but a resumption since then. Many conditions remain present for a strong continuation in M&A for 2021, including financing with favorable interest rates. Private equity firms are still sitting on piles of dry powder and they have plenty of major deals in the pipeline and the SPAC surge could make for ideal conditions. The impressive recovery from the doldrums of the pandemic could be a sign of even more robust dealmaking to come in 2021. Andrew Pillsbury, Chair, M&A Practice Group

Rule 144 Proposed Amendments. The SEC is proposing to amend Rule 144 to revise the holding period determination for securities acquired upon the conversion or exchange of certain market-adjustable securities of issuers that do not have securities listed on a national securities exchange. The Kelley Drye Corporate Practice strongly opposes the adoption of the proposed amendments to Rule 144(d)(3)(ii). In an era of pandemics and stay-at-home orders that have shuttered business around the world, with many companies struggling to survive, the last thing small businesses need are additional regulations that will have a chilling effect on investors and investments in private placements of public equity and debt. Michael Adelstein, Chair, PIPEs and Alternative Investments Practice Group
 

Labor and Employment

Keep employees safe in the ongoing COVID-19 pandemic. With many employees working from home while essential workers are exposed to potential hazards on-site, and with thorny questions about vaccination and testing on the immediate horizon, employers should carefully watch the evolving guidance on the do’s, don’ts, opportunities and risks involved in keeping their workforces safe and productive.Mark Konkel, Co-Chair, Labor and Employment Practice Group
 

Upcoming Events

Join Kelley Drye for the following upcoming programs, including our Labor and Employment group’s WORKing Lunch webinar series and our Communications practice’s Annual USF Webinar. And in case you missed it, check out recordings of our recent webinars on Biden Administration Regulatory and Policy Outlook for Manufacturers and Lawsuits and Laws In Vogue: What To Keep an Eye On in 2021.

WORKing Lunch Webinar Series

Kelley Drye’s virtual WORKing Lunch is a webinar series focused on bringing in-house counsel, management, and HR professionals the latest trends and developments in workplace law.

Upcoming Webinars in the series include:

Employee Leave Laws: Managing the Intersection of FMLA, ADA, and FFCRA
March 2, 2021, 12:30 pm ET

A Look Down the Road: Employment Laws Ahead
April 13, 2021, 12:30 pm ET

Wage & Hour Laws: How To Avoid Common Pitfalls
May 18, 2021, 12:30 pm ET

Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company
June 22, 2021, 12:30 pm ET

Click here to register for individual webinars or the entire series.

12th Annual USF Webinar
Back for its 12th year, Kelley Drye’s Annual USF Webinar provides an in-depth look at all four USF programs and the USF contribution mechanism, highlighting major developments in the last year and trends for the upcoming year. This webinar supplements the knowledge our clients gain from the monthly USF Tracker to provide context and analysis of the issues you need to know. Visit our website in the coming weeks for updates or email acimon@kelleydrye.com to be added to the invite distribution list.

Visit our Events page to see upcoming speaking engagements and for the latest updates on Kelley Drye hosted events.
 

"The Best of" Podcast Playlist

In 2020, Kelley Drye podcasts – Ad Law Access,  Full Spectrum and Legal Download – produced close to 50 episodes. Here are the top episodes of the year.

Listen on AppleSpotifyGoogle PodcastsAmazon MusicSoundcloud or wherever you get your podcasts.

Ad Law Access
 
  1. Sweepstakes and Contests 101
  2. CCPA Update: Attorney General Proposes Modified Draft Regulations
  3. CCPA from the Trenches with Matt Dumiak of CompliancePoint
  4. Automatic Renewal Plans
  5. CCPA Update (Amendments, Draft Regulations, and Classification issues)
  6. Texting 101 - The Hot Button Issues to Consider When Running a Texting Campaign
  7. FTC Releases New Guide to Help Influencers
  8. Cause Marketing - Commercial Co-Ventures: What You Need to Know Before Getting Started
  9. Influencers and Endorsers: Understanding the Upfront Legal Requirements
  10. Making it in the USA – When Product Origin and Origin Marketing Claims Matter

Full Spectrum
 
  1. Inside the TCPA, Episode 6: Rethinking Enforcement
  2. COVID-19 Related Bankruptcies: How Can Communications Service Providers Prepare?
  3. IoT Security: NIST Spotlight
  4. Tuning into Spectrum, Episode 4: C-Band Reform
  5. The Illinois Biometric Privacy Act - What are the Costs and Risks to Your Business?
  6. Tuning into Spectrum, Episode 3: C-Band Update
  7. A Closer Look at the FCC’s COVID-19 Telehealth Program
  8. FCC Enforcement Update, Episode 15: Breaking Barriers
  9. Sizing up the FCC in 2021
  10. FCC Enforcement Update, Episode 14 (Part 1): Commissioner-led Enforcement)

Legal Download
 
  1. COVID-19: Back to Work 
  2. COVID-19: What Employers Need to Know Now 
  3. The Regulatory Landscape for Cleaning Products Claiming to Kill Coronavirus (COVID-19) 
  4. Leasing In The Age of COVID-19 
  5. From Subpoenas to Search Warrants: Search Warrant Basics 
  6. Bankruptcy During the COVID-19 Pandemic 
  7. Cybersecurity and Data Protection Issues in the 2020 Election with Kendall Burman of Alloy 
  8. Closing the Digital Divide and Enabling Connected Life 
  9. What You Need to Know About California's Proposition 65 Law 
  10. Cleaning Up: Answers To Common Questions About Disinfectant, Germ, and Virus-Killing Claims 

Our thought leaders keep you updated through advisories and articles, blogs, newsletters, podcasts and resource centers.  Sign up here to receive our email communications tailored to your interests.
 

Kelley Drye’s Task Force on Racial Equality

The killings of George Floyd, Breonna Taylor, and Ahmaud Arbery in 2020 and the ensuing unrest that occurred around the country left us feeling waves of anger, frustration, and sadness. Believing that the Kelley Drye community’s many talents could be leveraged to foster change, the firm established the Task Force on Racial Equality to increase awareness of racism and anti-racism efforts and leverage the talent and energy of the Kelley Drye community to assist in the fight for racial justice. The Task Force took definitive action over the course of six months, and set in motion several initiatives that are being carried forth through the firm’s Diversity and Inclusion and Pro Bono Committees.
 

Targeted pro bono assistance

The Task Force forged a partnership with Legal Aid Society Cop Accountability Clinic, which was launched to support New Yorkers who were arrested or the victims of police misconduct and brutality. Through this partnership, Kelley Drye attorneys represented complainants who were unjustifiably arrested during protests or were victims of police violence. We provided legal advice and assisted clients with filing complaints in New York. One associate that participated in the program highlighted the importance of the work:
 

Our client was wrongfully detained while participating in a [Black Lives Mater] protest in Brooklyn, and although the charges against him were eventually dismissed, it was obvious that he appreciated the opportunity to talk about the traumatic event with people advocating on his behalf who were taking active steps toward correcting police misconduct. I wanted to get involved in righting the injustices that were done to so many individuals, and work to increase the accountability of people in positions of power.” –  Emma Kelly, Associate

We also partnered with other organizations such as the American Civil Liberties Union of Louisiana and are working with them as part of their Justice Lab: Putting Racist Practices in Policing on Trial. Kelley Drye attorneys will take on cases involving racially-motivated stops and seizures that occurred within the State of Louisiana in 2020. We expect this aggressive litigation effort to be a blueprint for legal actions elsewhere in the country.

Kelley Drye took an active role in the Law Firm Anti-Racism Alliance, which is a collective of law firms, now numbering more than 250, committed to fighting systemic racism. As a member firm, Kelley Drye is committed to implementing legislative and regulatory advocacy strategies to change federal, state and local laws, and practices identified as resulting in disparate outcomes for people of color.

Another Task Force initiative raised awareness of federal and state “ban the box” laws that aim to increase employment opportunities for certain ex-offenders by delaying criminal history inquiries to a later stage in the hiring process, thereby giving the applicant a fairer chance at a conditional offer of employment.
 

Assisting our diverse communities and businesses

Recognizing that diverse-owned businesses may lack equal access to resources and opportunities, the Task Force developed a webinar series to provide information about essential business and legal topics. The webinars, which will be made available through partnerships with black and brown chambers of commerce, will cover labor and employment issues, corporate formation, advertising rules, and more.

The Task Force also continued developing Kelley Drye’s supplier diversity program initiative to ensure that a substantial percentage of its vendor spending supports businesses owned by people of color, women, persons with disabilities, and members of the LGBTQ community. This initiative, along with others, will be continued by the Firm’s Diversity and Inclusion Committee.

Kelley Drye also worked to support the young in our communities, increasing the firm’s engagement with an elementary school serving a population of economically disadvantaged students. Several members of the Kelley Drye community mentored students in the Fall “GeoPlunge” Tournament – a geography tournament. Kelley Drye also provides weekly tutoring for the students in academic subjects.

A book drive sponsored by Kelley Drye to ensure the students had books to read at home as part of their virtual learning program resulted in each student receiving more than a dozen books for their home libraries. Kelley Drye also sponsored a food drive and distributed Thanksgiving baskets to families in need at the school.
 

Financial support for organizations making a difference

Kelley Drye provided financial support to organizations that work to foster racial equality and equal justice. The Task Force initiated a charitable contributions drive, resulting in donations of $200,000 from the Kelley Drye community and the firm to four charitable organizations:
 
  • JobsFirst NYC is dedicated to solving the problem of economic mobility and justice for young adults, large numbers of whom are out of work and school;

  • The Campaign for the Fair Sentencing of Youth works to prevent the problem of extreme sentences for youthful offenders;

  • The Equal Justice Initiative fights for the abolition of the death penalty, targeting wrongful convictions by exposing prosecutorial and police misconduct and advocating for better defense for the indigent; and

  • The Shriver Center helps win law, policy, and systemic changes to promote pathways out of poverty and fights for fair work and a living wage; access to affordable and comprehensive health care; affordable, fair and safe housing in inclusive communities; and environmental justice for poor communities.
 

Looking inward and learning together

The Task Force emphasized the importance of fostering dialogue within the Kelley Drye community about systemic racism and privilege.

The Kelley Drye community was invited to participate in three discussion groups during which people shared their thoughts regarding Bryan Stevenson’s book Just Mercy and the podcast Nice White Parents. The discussions focused on the issues of race and bias in the criminal justice and education systems, allowing for robust discussions among individuals from a number of Kelley Drye offices.

The Task Force also hosted author and diversity and inclusion consultant Michelle Silverthorn for a presentation titled, “What if I Say the Wrong Thing?” during which Ms. Silverthorn provided strategies for overcoming the fear associated with having hard conversations about issues of race and bias.

Kelley Drye is planning additional discussion sessions and also is considering other initiatives and intends to conduct refresher training on implicit bias and a survey exploring firm culture.

Recognizing the critical importance of the Task Force’s work, the firm has incorporated its initiatives into the work of Kelley Drye’s standing Diversity and Inclusion Committee and its Pro Bono Committee for continued implementation.

To learn more about Kelley Drye’s commitment to Diversity and Inclusion, visit our website.
 

Kelley Drye Book Breaks

We invite clients and their families to join us for our “Book Break” program, where we encourage the Kelley Drye community and their families to take a break from the busy week and listen to a firm lawyer/professional read a personal or family favorite book via Zoom on Friday afternoons. Check out recordings of these programs and stay tuned for new, live programming.
 
If you are interested in receiving an invite to our Book Breaks, please email lliu@kelleydrye.com