State Court Judge – Who Wouldn’t Marry Same-Sex Couples – Suspended for 3 Years

The Oregon Supreme Court on Thursday took the unusual step of suspending a sitting state court judge — Vance Day of Salem — for three years, reports The Oregonian.

The court found that the Marion County Circuit Court committed “willful misconduct” and made “willful misstatements” to investigators to cover up the truth, according to reporter Aimee Green.

The court also found that Day acted with prejudice against same-sex couples by deciding he wouldn’t marry them and he instructed his staff to employ a scheme to avoid “public detection” of his plan, the Supreme Court said.

Read The Oregonian article.



Supreme Court to Clarify Applicability of Arbitration Act to Transportation Contracts

The U.S. Supreme Court has granted certiorari in New Prime Inc. v. Oliveira, which should provide guidance as to the circumstances in which the Federal Arbitration Act (FAA) applies to interstate transportation workers who are purported independent contractors, according to the Transportation Blog of Holland & Knight.

“The case will be important for in-house and private transactional attorneys who draft contracts with transportation sector independent contractors, as well as litigators handling employee misclassification cases,” the article’s authors write.

They explain: “Over the past several years, a spate of class action litigation has targeted the long-standing use of owner-operator truck drivers as independent contractors, with drivers claiming that they should be classified as employees. The contract between the motor carrier and the driver often contains an arbitration clause, but drivers typically file these cases in court, leading to a fight over the proper forum.”

Read the article.



Making Sure Your Website is Compliant with State Bar of Texas Ad Rules

Making sure a firm’s website is compliant with State Bar of Texas advertising rules is just one of the many responsibilities for Texas lawyers and law firms who are launching a new site or updating an existing site, writes Bruce Vincent in a blog post for Muse Commuinications.

“Just like television or print advertisements, websites are considered advertising by the State Bar of Texas,” he explains. “That means that your site’s content must be submitted for approval to the State Bar Advertising Review Committee, which has maintained responsibility for approving and monitoring legal advertising, including websites, for more than 20 years.”

He discusses some common ad rules violations, such as misrepresenting specialization and professional honors, making unfair comparison to other firms, improperly listing verdict amounts, and including photos of non-lawyers.

Read the article.



Avoiding Prosecution Churn: When Ex Parte PTAB Appeals Make Dollars and Sense

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Avoiding Prosecution Churn: When Ex Parte PTAB Appeals Make Dollars and Sense,” featuring Fitch Even partner Thomas F. Lebens and Anticipat founder Trent Ostler.

The event will be Wednesday, March 21, 2018 , at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT.

During the process of acquiring patent rights through the patent application process, applicants sometimes wish to seek review of rejections by an examiner. The formal mechanism for achieving this review is an ex parte appeal to the Patent Trial and Appeals Board (PTAB). Some patent practitioners avoid the ex parte review process, viewing it as lengthy and expensive. But, data and experiences recently compiled by an AIPLA subcommittee suggest that this conventional thinking may be incorrect. It turns out that pursuing an appeal can be a more attractive option than other patent prosecution procedures.

During this webinar, presenters will explore how the AIPLA findings may provide guidance on
• When to file ex parte PTAB appeals
• How often to file these appeals
• Which issues to choose to appeal

Additional topics will include
• USPTO incentives
• Working with the examiner
• Patent term adjustment
• Pre-appeal brief reviews
• Other relevant statistics

Register for the webinar.



Five Ways the Senate Plans to Roll Back Regulations on Wall Street

Bank sign

Image by Mark Moz

The Washington Post is reporting that the Senate is slated to pass far-reaching legislation this week to roll back key components of financial regulations put in place after the global financial crisis.

If made into law, the legislation would weaken the Dodd-Frank Act and would free dozens of financial institutions from the strictest rules put in place by regulators after the crisis, explains reporter Renae Merle.

The bill would raise the “too big to fail” standard for troubled banks, soften capital requirement for banks, offer small banks relief from the “Volcker rule” that bars banks from making risky wagers with their own money, and offers some banks relief from some restrictions on mortgage lending. The proposed legislation, however, would not weaken the Consumer Financial Protection Bureau.

Read the Post article.

Dear Employer, You Could Owe the IRS Millions of Dollars

The first batch of employers are getting estimates from the IRS of penalties they owe for not providing health coverage to employees in 2015. Some of the estimates are in the millions, reports Bloomberg.

Kristen Ricaurte Knebel writes that the IRS won’t say how many “226-J” letters have gone out or who’s getting them.

“But some practitioners expect Industries like trucking, restaurant, and staffing to see a high proportion of them,” she explains. “That’s because there is a high turnover rate inherent in those industries, which makes it challenging to keep track of workers, Alden J. Bianchi, a member at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo PC in Boston, told Bloomberg Law.”

The Affordable Care Act in 2015 required employers with 100 or more full-time employees to offer minimum essential coverage to at least 70 percent of full-time workers. Failure to do so could result in a penalty of $2,080 for every full-time employee, with penalties sometimes reaching $10 million.

Read the Bloomberg article.



Antitrust Litigation: How an Amicus Brief Can Win an Appeal

The Antitrust Update of Patterson Belknap Webb & Tyler discusses a Federal Trade Commission case in which it appears an amicus brief may have been dispositive to the outcome of an appeal.

In Federal Trade Commission v. Penn State Hershey Medical Center, a group of 36 economists affiliated with top universities across the country filed an amicus brief explaining that the lower court used a faulty economic theory when it ruled against the FTC. The appellate court cited the brief when it reversed the district court.

Authors Jake Walter-Warner and Jonathan H. Hatch examine the brief’s influence on the appellate court and show how the court laid out the issues with the district court’s analysis just as the amicus brief did.

Read the article.




FERC has Options if Court of Appeals Shuts Down Operating Interstate Pipeline

Image by NPCA Online

Randall S. Rich of Pierce Atwood LLP, writing in the firm’s Energy Infrastructure Blog, considers the question: Can an interstate natural gas pipeline continue to operate if a court vacates its certificate authorizations?

He raises the question in light of a federal appellate court’s ruling that raises the possibility that it will vacate certificates of public convenience and necessity authorizing the construction and operation of the Florida Southeast Connection pipelines. Those pipelines are currently transporting natural gas to power plants in Florida.

He covers the facts of the case and then discusses a legal theory that may permit the pipelines to continue to transport natural gas if the certificate orders were vacated.

Read the article.




Conflict of Interest Causes NLRB to Vacate Pro-Corporation Ruling

The National Labor Relations Board threw out its most important ruling of 2017 — a 3-2 victory for major U.S. corporations — following an internal agency report that found that a potential conflict-of-interest had tainted the vote, reports Bloomberg, via the Chicago Tribune.

Bloomberg reporter explains that the discarded ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors.

“The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris,” Eidelson reports.

Read the Tribune article.



U.S. Supreme Court Wrestles With Microsoft Data Privacy Fight

MicrosoftReuters reports that Supreme Court justices on Tuesday wrestled with Microsoft Corp’s dispute with the U.S. Justice Department over whether prosecutors can force technology companies to hand over data stored overseas, with some signaling support for the government and others urging Congress to pass a law to resolve the issue.

“The case began when Microsoft balked at handing over a criminal suspect’s emails stored in Microsoft computer servers in Dublin in a drug trafficking case. Microsoft challenged whether a domestic warrant covered data stored abroad” according to reporters Lawrence Hurley and Dustin Volz.

Two of the justices, Ruth Bader Ginsburg and Sonia Sotomayor, questioned whether the court needed to act now,  considering the fact that Congress is considering bipartisan legislation that would resolve the legal issue.

Read the Reuters article.




For the Third Time, Supreme Court to Hear Mandatory Union Dues Arguments

Next week the Supreme Court will hear oral argument on whether to reverse a 41-year-old ruling that allows states to require government employees to pay union dues even though they don’t want to be union members.

“It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice,” writes Amy Howe in SCOTUSblog. “The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in [petitioner Mark] Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.”

The case, appealed by Janus, an employee of the state of Illinois, comes after the U.S. Court of Appeals for the 7th Circuit rejected his argument that the agency fee violated his rights under the First Amendment.

Read the SCOTUSblog article.




DOJ Warns of Criminal Actions Against Companies with Agreements Not to Poach Competitors’ Employees

An assistant attorney general in the Department of Justice has warned that the DOJ would soon launch criminal enforcement actions against companies that have so-called “no poaching agreements” with each other, whereby they agree not to solicit one another’s employees, reports Bloomberg.

Makan Delrahim, assistant AG in the Antitrust Division, says his division has “been very active” in reviewing potential violations of the antitrust laws caused by these agreements and added that “in the coming couple of months,” the public “will see some announcements” of DOJ actions.

Writing for Bloomberg, three Seyfarth Shaw lawyers warn, “The bright line has now been drawn: Any violative anti-poaching policies after October 2016 expose employers to criminal punishment. In fact, for the DOJ Antirust Division, such enforcement actions might prove to be like shooting fish in a barrel.”

Read the Bloomberg article.




U.S. Bank Cited by Federal Authorities for Lapses on Money Laundering

U.S. Bank, the fifth-largest commercial bank by assets in the United States, was charged by the the Justice Department on Thursday with failing to guard against illegal activity and, in at least one instance, even abetting it, reports The New York Times.

The bank is charged with severely neglecting anti-money laundering rules, helping a payday lender operate an illegal business and lying to a regulator about its plans for tracking potential criminal activity by bank customers, writes reporter Emily Flitter.

The bank settled the Justice Department charges and cases brought by other regulators by agreeing to pay various fines and penalties totaling $613 million.

Read the NY Times article.



Download: Are You Ready For The GDPR?

Zapproved has published “GDPR Readiness: A Quick Start Guide” about the European Union’s General Data Protection Regulation (GDPR) which is set to go live on May 25, 2018.

Zapproved says that half of all affected businesses won’t be ready for the May launch of the GDPR. This guide is intended to help those struggling with compliance so companies can avoid fines, which can be as much as 4 percent annual corporate turnover, or €20 million — whichever is greater.

“If you collect or maintain data about EU residents or conduct business in the EU, you will need to understand and comply with the data collection, security, access and erasure provisions of the GDPR or face unprecedented penalties,” the company warns.

This complimentary quick guide explains why GDPR exists and how it’s likely to conflict, at least initially, with U.S. discovery principles. It includes a short checklist for the first steps to take to get started with GDPR readiness.

Download the guide.



Justice Department’s No 3 Official to Take Walmart’s Top Legal Job

Rachel Brand, the U.S. Justice Department’s No 3 official, is leaving for the top legal job at Walmart, reports the Associated Press.

“Brand attracted interest because of her potential to assume a key role in the Trump-Russia investigation,” according to the AP. “The official overseeing the special counsel Robert Mueller’s investigation, the deputy attorney general Rod Rosenstein, has been repeatedly criticized by Trump. If Rosenstein had been fired or quit, oversight would have fallen to Brand. That job would now fall to the solicitor general, Noel Francisco.”

Walmart sought Brand to be head of global corporate governance at the retail giant.

Read the AP article.




Attempting to Insert New Term into Collective Bargaining Agreement Not Agreed to in Negotiations Violates the Law

A case heard by the National Labor Relations Board discusses the law concerning the legal duty to reduce a collective bargaining agreement to writing, and then sign it, according to a post on the Proskauer Labor Relations Update.

Partner Mark Theodore explains:

“Among other things, a signed agreement serves as an absolute bar to employees filing a decertification petition during the term of the agreement (with some timing limitations), while an unsigned agreement does not bar such a petition. A signed agreement also, obviously, is more easily enforced as it signifies to the entire world that this is the deal, and that the parties signed it after evaluation of its terms.”

Read the article.



On-Demand Webinar: Achieving GDPR Compliance

Zapproved and General Counsel News have posted an on-demand webinar that can help executives and lawyers learn about the impact and strategies associated with the European Union’s General Data Protection Regulation set to take effect in May. (See the video below.)

While the GDPR standardizes data protection law across the EU, it doesn’t spell out how U.S. companies can update data preservation processes to be compliant. This on-demand webinar offers key steps on ensuring a company’s approach to processing personal data of EU citizens meets these new cross-border data privacy guidelines.

The webinar covers such topics as:

  • Prepare for Article 30’s demand for detailed record keeping
  • Article 30 of the GDPR broadly requires that data controllers and data processors maintain a detailed record of their processing activities.
  • Understand the U.S and EU perspectives on privacy rights
  • Consider gaining ISO2l701 certification
  • Gaining ISO2l701 certification, an International standard of security that European regulators cite, demonstrates that you’re thinking like an international citizen with a cross-border responsibility.


Commentary: Wells Fargo’s Board Members Are Getting Off Too Easy

When the Federal Reserve announced its punishment of Wells Fargo in the company’s sales scandal, the agency also announced that the company would replace four members of its 16-person board.

In a commentary for The Washington Post, former treasury secretary Lawrence Summers discussed the question: Why aren’t the directors who are leaving being named and asked to resign effective immediately with an element of humiliation?

“There are compelling reasons for due process before anyone goes to jail, even if it undermines deterrence,” Summers writes. “There is no similar justification for due process before being fired, publicly, for being a failed fiduciary. The Fed and other regulatory agencies should change their procedures.”

Read the Post article.



SEC Halts Dallas-Based Bank’s Cryptocurrency Sale – But Not Before It Says It Raised $600 Million

BitcoinDallas-based AriseBank — intended to be the world’s first “decentralized bank” —  saw its initial offering of a cryptocurrency it called AriseCoin shut down before it could get off the ground, reports The Dallas Morning News.

The Securities and Exchange Commission has halted the sale of AriseCoin, saying it was all part of a more straightforward, old-fashioned investment scam, according to economy writer Jill Cowan.

“Attempting to conceal what we allege to be fraudulent securities offerings under the veneer of technological terms like ‘ICO’ or ‘cryptocurrency’ will not escape the commission’s oversight or its efforts to protect investors,” Shamoil T. Shipchandler, director of the SEC’s Fort Worth Regional Office, said in a statement.

The company company had said it raised $600 million ahead of its initial offering of the new currency.

Read the Dallas News article.




SEC Weighs a Big Gift to Companies: Blocking Investor Lawsuits

In its determination to reverse a two-decade slump in U.S. stock listings, the SEC might offer companies an extreme incentive to go public: the ability to bar aggrieved shareholders from suing, reports Bloomberg.

The Securities and Exchange Commission has privately signaled that it’s open to at least considering whether companies should be able to force investors to settle disputes through arbitration, an often closed-door process that can limit the bad publicity and high legal costs triggered by litigation, writes Benjamin Bain.

“But allowing companies to shield themselves from shareholder lawsuits would almost certainly enrage investor advocates and Democratic lawmakers, a combination that helped defeat a 2012 attempt by private-equity giant Carlyle Group LP to prohibit investor suits as part of its IPO,” Bain explains.

Read the Bloomberg article.