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The members and associate attorneys at Rasmussen Dickey Moore are supported by a fantastic team of paralegals, clerks, secretaries and administrative assistants, human resource specialists, accountants and billing specialists, and marketing specialists. Our team works with over two dozen attorneys across three offices to make possible the unparalleled work that our firm does.

RDM's Knowledge Blog Posts by The RDM Team

During the summer of 2023, Rasmussen Dickey Moore was delighted to welcome Megan Smith to our Kansas City office as a summer associate. Megan finished her 1L year at Vermont Law and Graduate School, returned to her Metro Kansas City home for the summer, and will resume her law studies as a 2L at the University of Cincinnati School of Law. 

Megan is a lifelong Kansan, growing up in Leawood, just across State Line Road from RDM’s Kansas City, Missouri, headquarters. 

Majoring in Environmental Studies and minoring in Political Science at the University of Kansas, Megan was an active member of Kappa Delta Sorority, serving on the chapter’s Diversity, Equity, and Inclusion Committee as the liaison to the sorority’s Vice President of Public Relations. 

Megan plans to continue her environmental education by pursuing a career in environmental law. At Vermont Law and Graduate School, Megan served as a 1L Senator with the Environmental Law Society

This summer, Megan researched law in many fields, including contract law, tort law, and environmental law. “One of the many things ingrained in my memory during the first year of law school was the importance of legal research and writing,” says Megan. Her summer associate position provided extensive opportunities to draft motions, memos, and reports for the attorneys at RDM.  

“The opportunity to apply the knowledge I gained from my 1L year has been amazing, and I have been able to do it in so many different ways. So far this summer, I have worked with documents such as depositions, trial testimony transcripts, studies, cases, and pleadings. Being in meetings with attorneys and paralegals to learn more about what truly goes into crafting a defense or substantiating a claim has been really interesting to see.” 

Megan’s biggest project during her summer at RDM is to research and prepare a report about an environmental dispute that lasted from the late 1960s and into the 1970s regarding water pollution. This dispute put the federal government, state governments and agencies, and environmental groups at odds. “This project has been so interesting,” says Megan, “and it has shown me how important it is to truly understand the history and science behind statutes, cases, and regulations.” 

In addition to helping the attorneys with their work, Megan also prepared two presentations about the confidentiality requirements regarding court filings becoming publicly available on Case.net. The opportunity helped her to get out of her comfort zone and learn more about the responsibilities and requirements of being a lawyer. 

“I have really enjoyed my summer here at RDM, and can’t wait to see where the rest of my time here takes me!” Thank you, Megan, for a job well done this summer, and best wishes in your 2L classes! 

The Illinois Supreme Court, where the Cothron v. White Castle class action lawsuit over BIPA claims was reviewed in 2023.

Last Fall, an Illinois Court saw the first class action lawsuit brought under the Illinois Biometric Information Privacy Act, an Illinois statute that allows individuals to make a claim against private entities that collect biometric data without first creating a publicly available policy on the data’s retention and destruction, obtaining the individual’s consent, and using reasonable care to protect the information gathered.

Rasmussen Dickey Moore attorneys RoseAnn Sorce and Nathan Lindsey have been following developments in BIPA litigation and the potential effects on Illinois businesses. Nate provided an overview of Illinois’ BIPA statute when it was enacted, and RoseAnn continued with a recap of Rogers vs. BNSF Ry. Co., the first BIPA class action lawsuit.

After the jury found for the plaintiff class in Rogers v. BNSF Ry. Co., legal experts expected the $228 million dollar verdict to lead to a flood of BIPA litigation. All eyes then turned to Cothron v. White Castle System, Inc., which would answer the question of whether each and every scan or transmission of biometric data constitutes a separate violation of BIPA.

Last month, the Illinois Supreme Court answered “yes” to this question, adding yet another notch in plaintiffs’ belts. 

Cothron v. White Castle System, Inc.

On behalf of a class of White Castle employees, White Castle manager Latrina Cothron claimed the fast-food giant violated BIPA when it disclosed employees’ fingerprint scans (obtained in order to grant employees access to their paystubs) to a third-party vendor. In response, White Castle argued that Cothron’s claims were untimely as they accrued in 2008, the very first time she scanned her finger and White Castle obtained her biometric data. White Castle further claimed that a BIPA violation could only accrue once—the first time the biometric data is collected or disclosed—while Cothron argued a new claim accrues each time biometric data is collected or disclosed. The District Court agreed with the Plaintiff, but certified White Castle’s order for immediate interlocutory appeal, moving the case to the Seventh Circuit Court of Appeals. The Seventh Circuit agreed that “the novelty and uncertainty of the claim-accrual question” warranted certification to the Illinois Supreme Court.

In deciding when a BIPA violation accrues, the Illinois Supreme Court focused on the plain and ordinary meaning of the language of BIPA. The Court looked at the statute’s use of the terms “collect” and “capture” and found that the definitions of these terms do not limit the actions to occurring only once. Therefore, the Court decided that each and every collection and subsequent disclosure is a separate violation of BIPA, a decision that has the potential to turn million-dollar claims into billion-dollar claims.

BIPA’s Effects on Illinois Businesses

Cothron v. White Castle’s effect on damage awards is clear. While the Illinois Supreme Court noted that damages are “discretionary rather than mandatory under the Act” and “there is no language in the Act suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business,” the Court provided no guidance to lower courts on how to exercise this discretion. Instead, it called on the legislature to “review these policy concerns and make clear its intent regarding the assessment of damages under the Act.” However, legislative action to amend BIPA may be unlikely, as previous BIPA reform bills never even made it to a vote.

Additionally, the White Castle decision makes it more difficult for defendants to assert a statute of limitations defense. Now, defendants must look to the last collection or use of a plaintiff’s biometric data rather than to the first. In White Castle, this brought Cothron’s claims within the statute of limitations, despite the fact that White Castle first violated BIPA in 2008.

Protecting Your Business from Future BIPA Claims

With catastrophic damage awards made possible by the Court’s decision in Cothron v. White Castle, some Illinois entities may be dissuaded from using biometric data at all. For businesses that already do collect biometric data, whether for timekeeping or security access, there is no need to stop these practices altogether. Rather, these entities should make a plan to periodically revisit their biometric data collection policies to ensure that they are in compliance with BIPA as it continues to evolve.
Make sure your business has a plan in place. RDM’s Employment and Labor Law Team can review your company policies and help your business ensure compliance with BIPA and other applicable employment laws. Contact us today to discuss how we can help protect your business and your employees from complex and costly litigation.

Jane Bolin, Arabella Mansfield, Belva Lockwood, and Sandra Day O'Connor.

March is Women’s History Month, a time not only to look forward and envision a more equal world for the women that will come after us but also to remember the women that came before us and made it possible for women to be active members of the legal community. 

When I was in law school, it wasn’t uncommon to see women in the legal profession. Many of my professors were women, my classes had a relatively even ratio of women and men, and I interned under a female judge and female attorneys. Now, at Rasmussen Dickey Moore, I work in an office primarily made up of women. I don’t often pause to think back to a time when it was uncommon, or even prohibited, to be a female paralegal, lawyer, law professor, or judge.

However, many women have fought hard to gain a foothold in the legal profession, blazing a trail that provided an opportunity for my peers and me to pursue careers as attorneys and other legal professionals. We still have much work ahead of us to achieve true equity in the field, but several tenacious and undaunted women made great strides that allowed future generations like mine to enter the profession and make our mark.

Arabella Mansfield

Arabella Babb Mansfield was the first woman to pass the bar exam and be admitted to practice law, despite an Iowa state law that limited the practice to white males. Mansfield studied law for two years at her brother’s law office before taking the Iowa bar exam in 1869. She passed with high scores and went on to challenge the law that restricted women from the legal field. Mansfield was successful, and Iowa became the first state in the Union to allow women to practice law. Later in life, Mansfield would go on to be a leader in the women’s suffrage movement.

The National Association of Women Lawyers’ most prestigious award is named for Mansfield, as is the Mansfield Rule, an effort to boost underrepresented groups into leadership positions at over 100 of the nation’s largest law firms.

Belva Ann Lockwood

Belva Ann Bennett Lockwood studied at the National University Law School in Washington, D.C., completing her studies in 1870. However, the school refused to issue a diploma to her and another aspiring female attorney. Undeterred, Lockwood appealed all the way up to President Ulysses Grant, who promptly ordered that she receive her earned diploma.

After attempting to be admitted to the Supreme Court bar in 1876, Lockwood continued to battle for equal rights for women attorneys. President Rutherford B. Hayes signed a law in 1879 that allowed women to become members of the Supreme Court bar. In 1880, Lockwood became the first female lawyer to argue a case before the U.S. Supreme Court, arguing Kaiser v. Stickney. Lockwood would return to argue before the Supreme Court in United States v. Cherokee Nation, in which she successfully secured a payment of $1 million plus $4 million in interest—one of the largest judgments in favor of a Native American tribe at the time—for an unfulfilled treaty ceding Cherokee land in Georgia to the U.S.

Lockwood became heavily involved in politics in subsequent years, working towards women’s suffrage, world peace and disarmament, and other progressive causes. She also became the first woman to run for United States president in 1884, decades before the right for women to vote had been secured.

Jane Bolin

During her early years, Jane Bolin was discouraged by a career advisor at her undergraduate institution from applying to Yale Law School due to her race and gender. Nevertheless, Bolin went on to become the first Black woman to obtain a Juris Doctorate from Yale in 1931.

In 1939, she broke another glass ceiling when she became the first Black woman to serve as a judge—and for 20 years, she would remain the only Black female judge in the United States. 

Judge Bolin served four 10-year terms on the bench of the New York City Domestic Relations Court (now known as Family Court) and was noted for working to reform skin-color-based assignments for probation officers and end segregation in child placement facilities, pursuing her goal of demonstrating “a broad sympathy for human suffering.” Both in and out of the courtroom, Bolin worked tirelessly for civil rights and children’s education.

Sandra Day O’Connor

Sandra Day O’Connor eventually rose to the top of the profession, but her early years were met with discrimination not uncommon for the time. After graduating from Stanford Law School in 1952, O’Connor was unable to find a job as a lawyer due to her gender. The only job offer she received was as a legal secretary at a Los Angeles-based firm.

Despite this, she went on to be a deputy county attorney, state senator, trial judge, and federal judge before becoming the first female Supreme Court Justice in 1981 after near-unanimous (99 yes votes and one absence) confirmation by the Senate. Her tenure on the Court would last almost 25 years.

Despite the strides that women have made throughout history, we still have work to do to achieve true equality in the legal profession. According to the American Bar Association, 2014 was the first year that female-identifying first-year law students outnumbered male-identifying first-year law students. By 2022, women accounted for over 55% of all students in ABA-approved law schools.

But while more women are entering law school, the number of women working as lawyers still lags behind. In 1980, just 8% of all lawyers were women. That figure rose to 20% in 1991, 29% in 2000, and now sits at 38% in 2022. Furthermore, women are vastly underrepresented in leadership positions in the legal field. Just 23% of equity partners and 30% of federal judges were women in 2022. 

While the legal profession inches toward equality, it is the duty of every attorney, judge, and legal professional to do their part. It is exciting to see the ranks of law students and lawyers becoming more representative every year. And momentous events such as the appointment of Justice Ketanji Brown Jackson to the Supreme Court provide hope and inspiration for younger generations of women.

However, these advances require thoughtful and deliberate action. At RDM, our commitment to diversity, equity, and inclusion provides mentorship and opportunities to lift the voices of young female attorneys as we develop a future generation of leaders. Everyone can take these measures—listen to young and diverse voices and help them prepare to take the lead. Be a part of history in the making. 

Dr. Maya Angelou and Dr. Yusef Salaam, heroes of Black history and present. In the background is a photo of the March on Washington for civil rights in 1963.

February will always be that sacred time of year when we reflect on and celebrate Black History. Thanks to the contributions and sacrifices of those that came before me, I got to enjoy a childhood that was, for the most part, insulated (no pun intended) from the ghosts of this country’s racist past. I was born in the 90s—over 30 years after Dr. Martin Luther King, Jr.’s iconic March on Washington. I grew up in a military family, no less, so there was no shortage of diversity in the communities we lived in. I certainly wasn’t oblivious to the Civil Rights Movement—and my parents made darn sure I knew about it—but to say that I’d lived it, or even witnessed it with my own eyes, simply wouldn’t be true. Looking back on it, though, I realize that my childhood was a living testament to the dream Dr. King spoke of on the steps of the Lincoln Memorial all those years ago. It’s not something I take for granted, but as I grew into adolescence and adulthood, I had to come to terms with the inevitable conclusion that there is still much to do.

It’s the collective experience and sacrifices of those great individuals that came before us, including Dr. King, Thurgood Marshall, Harriet Tubman, Malcolm X, Rosa Parks, Muhammad Ali, and so many others, that help us make sense of the world we live in today. We all are immeasurably blessed that their legacies are something we have the chance to reflect on with the benefit of hindsight. Even in today’s climate of social unrest, there is much we can learn from the way these Black heroes lived their lives that will enrich and empower us, as we carry on through our own.

I know I am far from the only person who has struggled with frustrations when they see the systems in this country were set up in a way that benefits some to the detriment of others. And I don’t mean “see” like you read it in a book or online. I mean taking a drive down Troost Avenue in Kansas City, Missouri, in 2023 and seeing, with your own eyes, the ever-present effects of redlining practices that took place decades ago. I mean learning about (and visiting) Tulsa, Oklahoma. I know that I (and many others) have spent nights agonizing over America’s insatiable appetite for unrestrained cruelty, particularly where Black lives and blue lives are concerned. The likes of Keenan Anderson, George Floyd, Breonna Taylor, Tamir Rice, Philando Castile, Stephon Clark, Alton Sterling, Eric Garner, Trayvon Martin, and many others each serve as painful reminders that as far as we’ve come, there is still some way to go.

For many, accepting this reality means you’ve inevitably dealt with those same feelings of frustration, and at its worst, resentment. But what do you do with those negative emotions? I encourage anyone that has felt (or is feeling) this way to take this month to reflect on the lessons we can learn in Black history. To put this in perspective, I will share a discussion I was lucky to have with Dr. Yusef Salaam—one of the “Exonerated (Central Park) Five” during a visit he took to KU in February 2020, during my last year of law school. There, I asked him how on Earth he emerged on the other side of a wrongful conviction, losing years of his life in prison, and being vilified in a page one newspaper article by (at the time) the sitting President of the United States—who to this day has never issued any kind of apology. How did he suffer through all of that without being vengeful towards the inequitable systems in this county that allowed that to happen? His response to me was a quote he learned from Dr. Maya Angelou:

“You should be angry. You must not be bitter. Bitterness is like a cancer. It eats upon the host. It doesn’t do anything to the object of its displeasure. So use that anger. You write it. You paint it. You dance it. You march it. You vote for it. You do everything about it. You talk it. Never stop talking it.” 

And that’s exactly what Dr. Salaam did. He read, and he wrote, and he never stopped talking about it.  That is how he overcame his struggle and went on to inspire a generation—myself included. And therein lies the beauty of Black history. Behind every great man or woman in history was someone that inspired them to act in kind. In this sense, Black history is not something distant or perpetually suspended within the ambit of the Civil Rights Movement. It’s always being made. From Dr. Angelou to Dr. Salaam, and from Dr. Salaam to myself—it’s Black people inspiring those that follow after that constitutes Black history. It’s something that should always be celebrated, shared, and in times of strife, should be looked to for wisdom and clarity. I thank Dr. Angelou because her words gave grace and clarity to frustrations I’d carried in my heart for years. I also thank Dr. Salaam for being the vessel through which her words could flow in ways that not only inspired and changed the course of his life but also touched on mine.

I am certain there is something for all of us to learn this month that will revitalize our collective spirit and inspire us as we carry on through this year. We only have so much time on this earth, and the clock is ticking inexorably toward our journey’s end. To that end, I would encourage anyone to be proactive and seek out ways we can learn from and emulate our predecessors. It is incumbent on all of us to ensure that their legacy lives on. Whether that be reading about these Black revolutionaries online, conversing with a colleague, or simply watching a Netflix documentary—what can you learn from those that came before, and how can you ensure those lessons are passed on to those that follow after? 

This article was originally published in the February 2023 issue of DRI’s The Voice. Dillon is a member of DRI’s Diversity and Inclusion Committee.

The Federal Trade Commission Building in Washington DC. The FTC has proposed a new rule barring many non-compete agreements.

The current landscape regarding the enforcement of non-compete agreements is about to get flipped on its head in the United States. Following President Biden’s July 2021 executive order encouraging the Federal Trade Commission to employ its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” on January 5, 2023, the FTC—in a profound exercise of its regulatory power—issued a notice of proposed rulemaking that would have a sweeping effect on the enforcement of non-compete agreements.

The Proposed Rule 

The new rule will not only bar employers from entering into non-compete agreements with their workers. It will additionally require employers to rescind pre-existing non-compete clauses no later than 180 days after the final rule is published. Additionally, employers will be required to provide notice to their employees that, as of the compliance date, any non-compete clauses are no longer in effect and may not be enforced against the worker.

To properly comply with the rule, an employer’s communication to its workers would need to be “individualized” and “on paper or in a digital format such as, for example, an email or text message.” Notice would need to be delivered within 45 days of rescinding the non-compete clause. The notice requirement would apply to current and former workers, to the extent that “the worker’s contact information [is] readily available.” The proposed rule includes a very limited exception which is applicable only to “a person who is selling a business entity or otherwise disposing of all of the person’s ownership interest in the business entity, or by a person who is selling all or substantially all of a business entity’s operating assets, when the person restricted by the non-compete clause is a substantial owner of, or substantial member or substantial partner in, the business entity at the time the person enters into the non-compete clause.” 

Preemptive Effect on States’ Non-Compete Laws

Until now, the enforceability of non-competition clauses was a matter of state law, and states’ positions regarding the proper scope of noncompetition restrictions have varied. If implemented, however, this new rule will supersede all state laws, regulations, orders, or interpretations to the extent that they are inconsistent with the FTC’s rule. It’s worth noting that only California, North Dakota, and Oklahoma outright ban the enforcement of non-compete agreements—so the FTC’s rule would effectively create a nationwide policy that goes further than state law in the remaining 47 states.

The tremendous significance of this new rule cannot be overlooked. Most U.S. companies will be forced to completely change how they operate in retaining talent and safeguarding company secrets. Thus, it should come as no surprise that the rule, if adopted in its current form, will face prompt legal challenges.

In publishing the Notice of Proposed Rulemaking—which is the first step in the FTC’s rulemaking process—FTC Commissioners voted 3-1, along partisan lines, with Commissioner Christine Wilson being the lone dissenter. In her dissenting statement, Commissioner Wilson notes that the proposed rule “…represents a radical departure from hundreds of years of legal precedent that employs a fact-specific inquiry into whether a non-compete clause is unreasonable in duration and scope, given the business justification for the restriction.” She further expects that the “…Commission’s competition rulemaking authority itself certainly will be challenged,” including under the “major questions doctrine” addressed in West Virginia v. EPA, as the “Commission lacks clear Congressional authorization to undertake this initiative.”

The public will have 60 days to submit comments on the proposed rule, which was based on a preliminary finding that non-compete clauses constitute an unfair method of competition and, therefore, a violation of Section 5 of the Federal Trade Commission Act. The FTC noted that it is specifically seeking comments on: 

  1. Whether franchisees should be covered by the rule; 
  2. Whether senior executives should be exempted from the rule or subject to a rebuttable presumption rather than a ban; and 
  3. Whether low- and high-wage workers should be treated differently under the rule.

The comment period closes after March 10, 2023. The rule would subsequently take effect 180 days after the final version is published, but its imposition could be delayed as it is almost certain to face a significant wave of litigation challenging the constitutionality of the rule.

Although the rulemaking process is still in the early stages, this is the strongest indication of legislative and executive intent to void existing non-compete agreements and ban the use of such agreements going forward. As the tides drastically change for American businesses, employers should be proactive before this comment period is over and speak to an attorney regarding how their policies on non-compete agreements will be affected going forward. RDM’s Employment and Labor Law Team is ready to help you understand your options and ensure compliance with potential new regulations. Contact RDM today.

Further Reading on the FTC’s Non-Compete Rule

Dillion Williams previously provided an overview of restrictive covenants, including non-compete and non-solicitation agreements, in “The Shifting Landscape of Non-Compete and Non-Solicitation Agreements.” The article appeared in the January 2023 issue of DRI’s The Brief Case and was co-authored by Kennard Davis, associate attorney at Baker Donelson’s New Orleans office. Dillon and Kennard serve together on DRI’s Diversity and Inclusion Committee.