Bernstein Shur Monthly – May 2019


Bernstein Shur Monthly – May 2019

Bernstein Shur Elects New Chief Executive Officer

Portland and Augusta, ME and Manchester, NH (April 15, 2019) – Bernstein Shur, a leading New England law firm, has announced that Shareholder and Director of Attorney Recruiting and Retention Joan Fortin will become the first female Chief Executive Officer in the firm’s 104-year history on January 1, 2020, upon the retirement of current CEO Pat Scully.

“I’m deeply honored to be selected as the future steward of this firm and I look forward to building on our firm’s long legacy of service,” said Fortin. “Our focus will continue to be on service to our clients, our communities, and to each other – our attorneys and staff and their families.”

The firm’s equity shareholders elected Fortin as CEO last week. “Joan was the most qualified candidate for the position,” said Scully. “The fact that she is our first woman CEO is a bonus. It’s an exciting development for our firm.”

Scully and Fortin have worked together in strategic roles on the firm’s board of directors for over ten years. They will continue to work in their current positions through the end of 2019 to ensure a smooth transition and a feeling of continuity for clients, attorneys and the community.

“Pat has been and will continue to be a remarkable leader for the remainder of his tenure. He’s helped make Bernstein Shur one of the most desirable law firms at which to work,” said Fortin. “Under his leadership, the firm has enacted industry-leading policies like our parental leave policy, which provides 16 weeks of paid leave for all of our attorneys and staff regardless of gender. Additionally, under Pat’s leadership, we’ve grown our client demand and revenue, and as a result, our number of attorneys. We are deeply grateful to Pat for his leadership, kindness and humility during his six years as CEO and his 36 years with the firm.”

“It’s been a tremendous honor to lead such a talented group of attorneys. I’m very proud of the work we’ve accomplished, but I know there is still more to be done, and I know that Joan will be a wonderful leader of the firm we both care about so much,” said Scully.

A member of the ME State Bar since 1996, Fortin specializes in land use, municipal law and tax increment financing. She joined the firm’s board of directors in 2008; and as Director of Attorney Recruiting and Retention, she has hired nearly half of the firm’s 120 attorneys.

“We hire really talented people with growth and entrepreneurial mindsets, and we give them the freedom and encouragement to grow their individual practices in a way that is meaningful to them and that also helps us to continually develop new services that keep us pushing forward as a law firm,” said Fortin. “I’m excited about what we’ve been able to accomplish with this approach, and where we can take it in the future.”

Fortin earned her J.D. from Northeastern University School of Law in Boston. Prior to that, she earned a master’s degree in higher education administration from the University of ME and a bachelor’s degree from Colby College in Waterville. She grew up outside of Waterville on a dairy farm in Benton.

In 2018, MEbiz named Fortin a Woman to Watch. She has also been recognized in Best Lawyers in America for municipal law, and in 2013 Best Lawyers named her “Lawyer of the Year” for municipal law in Portland, ME.

She is also active in the community, chairing the American Heart Association’s 2019 Go Red Luncheon, volunteering her time with the Olympia Snowe Women’s Leadership Institute, serving as a member of the Lex Mundi Women’s Initiative recruitment and retention task force, and frequently speaking on a variety of topics related to diversity, inclusion, and women in the workplace.

She and her husband, Chet Randall, reside in Portland. In off hours, they can often be found together on a sideline somewhere cheering on their two children during a football, basketball, soccer or baseball game.

Click the links below to learn more!

Why Your Company Needs a Privacy Policy

By: Andrea J. Shaw, Shareholder, Bernstein Shur

As a privacy lawyer I’m asked all the time “does my company really need a privacy policy?”  Everyone expects me to say “yes!” They also expect me to say “I can draft one for you.”  It’s true, I do respond with both of those phrases.  This article explains why those are my responses.  The short answer is because it’ll make it easier for you to focus on running your business (and it’s the right thing to do for your customers).

The U.S. legal landscape is a patchwork quilt of privacy laws. There is no one federal legal scheme, but instead it varies from state to state and from industry to industry.  One commonality is that it is becoming ever more challenging to keep track of the various patches and how they apply to a given business.  Just in the data security law space alone, the number of states with privacy laws on the books doubled from 2016 to 2018[1].

Privacy Law Categories / State Laws[2]

Privacy laws can be grouped into various categories (this is not an all-inclusive list):

  • data breach laws;
  • children’s online privacy protection;
  • privacy policies and practices for websites or online services;
  • false and misleading statements in website privacy policies;
  • data disposal laws;
  • data security laws;
  • cybersecurity laws

Not all states have laws addressing all categories. We are seeing an increasing amount of state legislation being proposed year over year addressing privacy concerns.  In risk management terms “the direction of the risk is increasing.”

Federal Laws/Enforcement

Simply because a given state doesn’t have a privacy law specifically addressing a particular category doesn’t mean you are in the clear.  Depending on your industry there may be federal regulatory agencies which may be enforcing privacy laws.  For example, the Federal Trade Commission (“FTC”) has jurisdiction over most companies and individuals doing business in the U.S.  The big exception to FTC regulation is for companies that are primarily regulated by other federal agencies (e.g., financial institutions).  The FTC has taken a number of actions where it doesn’t have a statute or regulation directly on point using its statutory authority to prosecute “unfair or deceptive acts and practices.”  In maybe the simplest example of the breadth of the FTC’s enforcement power, the FTC requires a company that has a privacy policy to comply with it.  It also requires companies to give consumers notice if they make a material change to their privacy policy and to give the consumer an opportunity to opt out.   At this point you may be thinking “if that’s the case isn’t creating a privacy policy just making more work and increasing my risk?”  While it may seem like that on its face, if you have an internet presence and collect any data, chances are you are collecting information that is governed by one or more of the applicable state laws.

Last, the FTC has taken enforcement actions against companies who failed to protect consumer data on the grounds that they violated the prohibition on unfair or deceptive acts or practices.   Instituting (and following) a privacy policy helps mitigate these risks.

Emerging Issues

California is the first state to pass a data privacy law similar to what governs data privacy in Europe (Global Data Protection Regulation, better known as “GDPR”).  It is slated to take effect January 1, 2020.  It gives California residents certain rights regarding their information.  It also imposes various notice requirements as well as provides the consumer with the right to choose how some of their data/information is handled.  If you collect data from any California residents, a privacy policy will help everyone at your company understand what can and cannot happen with that data.

What it all Means

If you only take two things away from this article I hope that they are (1) the privacy legal landscape is complex, and (2) a well drafted privacy policy can help you manage the risk of non-compliance.  Given the complexity of the legal scheme it is more important than ever to understand what data you collect, how you use it, and in what jurisdiction the consumers’ whose data you are collecting reside.  It’s challenging to do this well without a privacy policy.  Creating and maintaining a privacy policy instills discipline for your business regarding privacy risks.  It forces you to periodically revisit your internal processes to ensure your privacy practices still align with what your policy says.  It tells everyone at the company that privacy matters to the company and helps to create a culture of privacy and data protection.  These things all go a long way to helping you manage and reduce your privacy risk.  By having your privacy requirements buttoned up you can focus on what is really important – running your business.

[2] Note that this article does not provide a complete analysis of all possible applicable state privacy laws, but rather is mean to give you an overview of the risks associated with not having a privacy policy.

Portland Spring Labor and Employment Seminar

Bernstein Shur is hosting the 2019 Spring Labor and Employment Seminar on Wednesday May 22nd at our Portland office. At this event we will discuss recent labor and employment developments and focus on the latest issues. Presentation topics are “ADA & FMLA Compliance”, “The Good, the Bad and the Unbelievable: True Stories – And Lessons Learned – In the Workplace”, “Social Media Overview and “Legal Update Session” followed by a cocktail reception for networking and collaboration.

Please contact Maria Sepulveda for more details if you are interested in attending this event.

2019 ME HR Convention

Bernstein Shur is proud to sponsor the upcoming ME HR Convention where shareholders Joan Fortin and Kat Joyce will lead a session on Pay Equity. The Convention brings together HR professionals from across ME to generate an atmosphere where HR careers and ME workplaces thrive and Bernstein Shur has been a proud supporter for many years.

Learn more about the ME HR Convention here.

ME State Chamber Energy Summit

We were proud to be the premier sponsors of the ME State Chamber of Commerce Energy Summit. The Summit brought together all the key players in ME energy policy for a full-day of discussion, presentations, and information, including a keynote address by Gordon Van Weile, president of ISO New England.

Learn more about the event here.

Things We Know For Shur – Attorney Videos

Things We Know For Shur: Featuring Andrea Shaw

Things We Know For Shur: Featuring Peter Herzog