Attorneys Underscore Key Concerns for Business Owners

Five years ago, foreclosures, global warming, labor and employment and domestic relations were among the most in-demand practice areas in the legal profession, according to the legal marketing firm Robert Denney Associates Inc. But in 2013, concerns over cyber security and new laws regarding patents, health insurance coverage and immigration reform have businesses looking for lawyers who specialize in these emerging areas. Alabama attorneys heading up special practice groups in these areas underscore key concerns for business owners.

Cyber Security
Computer viruses, malware, hackers and criminal insiders can steal away trade secrets and customer information, destroy records and expose a company to lawsuits. Helping businesses cope with the legal and regulatory policies related to cyber security is the goal of Sirote & Permutt P.C.’s new Privacy and Data Security Practice Group that debuted in March. Attorneys Todd Carlisle, in Birmingham, and Joe Ritch, in Huntsville, are chairmen of the practice group.

Carlisle says he spent nearly a decade managing information technology groups for a client and later for his law firm. The experience, he says, taught him about how computer systems work.

“The practice group was an opportunity for us to pull together expertise we already had resident in our firm and really focus that in an area that, unfortunately, is continuing to grow as the threat surrounding data security grows, ” Carlisle says.

The practice group helps clients develop and implement security policies and best practices and coordinates responses to data breaches, which may involve notifying customers, regulators and insurance brokers. The group also assists healthcare clients who are liable for the security of patient health records under the Health Information Technology for Economic and Clinical Health (HITECH) Act.

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“The first building block in your business is best practices, ” Carlisle says. “You’ve got to have good IT systems and a good IT structure and good policies and procedures on how that system is accessed and how employees interface your system. And then you need to have a compliance layer that addresses the regulatory environment that you work in.”

As Congress seeks to overhaul U.S. immigration laws, Anton Mertens, a partner with Burr & Forman LLP, says he knows firsthand what it’s like to be an immigrant. A native of Belgium, Mertens came to the United States as an exchange student with plans to attend law school.

“I was a student on a visa and had to get a green card to live and work here, ” Mertens says. “Once I got the green card, I realized that I could help others and not just sympathize with them.”

As head of Burr & Forman’s immigration practice group, Mertens counsels multinational companies and small businesses that want to hire skilled foreign nationals and other workers. He files petitions with the U.S. Citizenship Immigration Service and helps clients sort out their options, whether it’s obtaining an H1-B visa for a skilled worker seeking temporary, nonimmigrant status or green cards for those who want to pursue citizenship.

“This is an emerging legal area, ” he says. “It’s complicated at this point, and you need someone to help guide you through it and hopefully to make it less stressful for the employer and the employee at the same time.”

Unlike Mertens, Matthew Penfield, an immigration attorney with Maynard Cooper and Gale P.C., became interested in the practice while taking a class on immigration in law school. He says that while no special certification is required to practice immigration law, the field does require specialized knowledge and training to practice skillfully.

After Alabama passed its immigration law in 2011 and amended the law in 2012, Penfield and Ted Hosp, a shareholder at the firm, held seminars around the state to educate the public on what the new law meant, Penfield says.

“Then once the amendments became law, ” he says, “we tried to do the same thing again. We sent out informational materials via e-mail to our clients, we conducted seminars here in our office or went out to other areas of the state explaining all that the Alabama immigration law entails, but particularly as it related to businesses in the employment of workers.”

Health Care
Last year, as the U.S. Supreme Court considered the constitutionality of the Affordable Care Act (ACA), labor and employment attorney Pepper Crutcher, a partner at Balch & Bingham LLP, says he listened carefully to the oral arguments and the decision.

“My reaction was that [the act] was the biggest thing in employment law since Title VII of the Civil Rights Act of 1964 and the biggest change in healthcare law since Medicare was passed in 1965.”

To help employers and healthcare providers comply with the new law, Balch & Bingham formed its Affordable Care Act Strategist Practice, which Crutcher leads with a team of attorneys who specialize in labor and employment, healthcare and benefit plans, healthcare regulations and Employee Retirement Income Security Act (ERISA).

The team reviews companies’ healthcare plans, their claims history and determines whether their current plans can be grandfathered under the ACA.

One of the biggest legal issues regarding ACA, Crutcher says, will be how the law will impact business owners who have misclassified their full-time employees as independent contractors to keep from offering health coverage benefits. Crutcher says the misclassifications may be revealed once those employees apply for coverage or subsidies from the state-run health insurance exchanges. Crutcher says the IRS may catch inconsistencies in the employment information workers provide and their employers’ Form 1099s for independent contractors.

“The IRS, ” says Crutcher, “may do one of two things — assess the play or pay tax or open a withholding tax audit of the employer, suspecting that this may not be the only person who is misclassified.”

Intellectual Property
Social media and new advances in computer technology have made protecting trademarks, copyrights and other forms of intellectual property more challenging for businesses, says Greg Jones, a senior attorney at Hand Arendall LLC in Mobile and member of the firm’s Technology and Intellectual Property Group.

“When I started out working, you’re supposed to work for one or maybe two companies all your life. Now people change jobs every three to five years. It’s common [for an employee] to have a company-issued laptop or computer, or they work at home and they’re just walking around with their employer’s trade secrets and other intellectual property, and it’s so easy to download.”

Jones says his introduction to intellectual property law came early in his career, when he was general counsel for three technology companies.

“A lot of the kind of work that I do involves patent licensing, ” he says. “I represent a university, and we license technology and also patent litigation. I have several cases pending right now where we are either suing or defending infringement claims.”

In Birmingham, Will Hill Tankersley, senior intellectual property attorney at Balch & Bingham LLP, has a master’s degree in intellectual property law from New York University. As an attorney, he has represented clients like Alabama Power and Southern Co. and worked as an arbitrator on a case involving a start-up that tried to take the domain name of an older, established business. And he once represented the Andy Warhol estate against a man who made fake Warhol paintings and used them to obtain loans.

“We had an expert from the estate who had seen a couple of these fake Warhols and was able to testify in an affidavit that they were fake, ” Tankersley says, “and from that, we got an injunction against the guy and we were able to look at more ‘Warhols’ that he had created and determined that they too were fake. After that the case resolved itself because the judge gave us a judgment against the counterfeiter.”

One of the biggest developments to impact the intellectual property law has been in the area of patents. In 2011, Congress passed the Leahy-Smith America Invents Act. The legislation moved the United States from a system that awarded patents to original inventors to a system in which the patent goes to the first inventor to file with the U.S. Patent and Trademark Office.

The new law is “the largest change and biggest alteration to the Patent Act since the 1950s, ” says Huntsville-based attorney Frank Caprio, who chairs the Intellectual Property Group for Bradley Arant Boult and Cummings LLP.

“The law has caused inventors to consider filing more often and more quickly than they have in the past, ” he says.

The firm has attorneys on hand to file patents with the U.S. Patent and Trademark Office. Patent attorneys are required to take a separate patent bar exam in order to practice. Bradley Arant also provides other services, such as trademark registration and counseling on how to maintain company trade secrets.

“We’re honored and just lucky to get to work with folks who create, ” says Caprio, “and to be involved in helping them to protect their ideas.”

Gail Allyn Short is a freelance writer for Business Alabama. She lives in Birmingham.

text by Gail Allyn Short

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