What Does the NRA Want With One of America’s Top Drug Lawyers?

The NRA called on a self-described “aging Jewish hippie” who doesn’t own a gun and who frequently defends drug defendants to speak at the organization’s recent annual convention — because he’s a drug attorney who understands how the nation’s Byzantine drug laws could threaten gun owners.

Gerry Goldstein said he was as surprised as anyone to receive the invitation, reports The Dallas Morning News.

Reporter David Tarrant writes that federal law could cause pot users to lose their right to carry firearms, even in states where marijuana possession is legal. And the NRA could see a natural alliance between gun rights activists and people like Goldstein.

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives recently sent a letter to all federally licensed gun dealers, stating: “Any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medical purposes … is prohibited by federal law from possessing firearms or ammunition.”

Read the Dallas News article.




GC and CEO of Bank That Hid Drug Cash Face U.S. Criminal Probe

Bloomberg is reporting that the Justice Department is considering whether to accuse Rabobank NA’s ex-Chief Executive Officer John Ryan, former general counsel Dan Weiss and its past compliance chief of obstructing U.S. bank examiners’ efforts to dig into the firm’s failures to prevent money laundering.

Reporters  and  based their report on information from two people with knowledge of the probe who asked not to be named because the investigation is ongoing.

“The potential charges could close a dark chapter for Rabobank Groep, a Netherlands banking titan with $723 billion of assets,” they write. “Thousands of miles away from its Dutch headquarters, California bank branches near the Mexican border became a pipeline for the profits of organized crime starting in 2009, according to the Justice Department. In February, the U.S. unit admitted guilt to felony conspiracy allegations and agreed to pay $369 million, including a $50 million OCC fine.”

Read the Bloomberg article.



20 Dismissed Colorado Royalty Cases: Is There a Good-Faith Basis for Filing in District Court?

Colorado state district courts recently solidified judicial recognition of the Colorado General Assembly’s delegation of primary jurisdiction to the Colorado Oil and Gas Conservation Commission over royalty underpayment disputes, according to an alert by BakerHostetler.

Two judges of the District Court for the City and County of Denver dismissed royalty underpayment lawsuits for failure to exhaust administrative remedies before the Commission.

The firm said these decisions are significant because one judge vacated his prior ruling in the same case that had denied a substantively similar motion to dismiss, and the other judge had previously denied a similar motion to dismiss in a different case.

Read the article.



Biglaw Firm, Former U.S. Attorney Accused of Hacking Cover-Up

Bloomberg Law is reporting that a little-noticed lawsuit filed in New York federal court accuses a former federal prosecutor of unethically preventing a whistleblower from telling the FTC that he hacked an embattled company’s files using “FBI surveillance software” that the prosecutor gave him.

The allegations are in a suit against former U.S. Attorney Mary Beth Buchanan and Bryan Cave Leighton Paisner LLP, the global megafirm where she is now a partner, according to reporter Samson Habte.

Plaintiff LabMD Inc., a cancer-screening firm, says it went out of business after falling victim to a “shakedown scheme” by a cybersecurity firm that hacked the lab’s files—and then reported it to the FTC when it refused to pay for “remediation” services.

LabMD’s complaint alleges Buchanan gave FBI surveillance tools to Tiversa Inc., which then allegedly used the tool to hack LabMD. It also alleges Buchanan unethically represented the whistleblower in FTC proceedings to keep him from divulging how Tiversa received the hacking tool.

Read the Bloomberg article.



‘Not Looking for Old White Guys’: Restaurant Chain Must Pay in Age Bias Suit

The restaurant company that owns Seasons 52, Olive Garden, LongHorn Steakhouse, the Capital Grille and other well-known brands, agreed to pay almost $3 million to settle a lawsuit brought by job applicants who claimed they were denied employment because of their age, the EEOC said Wednesday.

The Miami Herald reports” “A complaint filed in Miami federal court in 2015 said it was ‘standard operating procedure’ for Darden [Restaurants] to disproportionately deny jobs to Seasons 52 applicants aged 40 and older, Reuters reported. That’s a violation of the federal Age Discrimination in Employment Act.”

Reporter Crystal Hill writes that the EEOC said applicants who were turned away were told they were “too experienced,” as well as, “we are not looking for old white guys.”

Read the Miami Herald article.



No-Poach, No-Solicit Provisions of Corporate Agreements Now Face Criminal Prosecution

U.S. Department of JusticeThe Antitrust Division of the U.S. Department of Justice recently announced a settlement of criminal charges against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. for having maintained agreements not to compete for each other’s employees, according to Locke Lord.

Authors Stephen P. Murphy and Joseph A. Farside Jr. write that one executive went so far as to state in an email that no-soliciting was a “prudent cause for both companies” and that the companies would “compete in the market.”

In announcing the settlement, an assistant AG noted that the criminal complaint was part of a broader Antitrust Division investigation into agreements not to compete for employees, typically known as no-solicit or no-poach agreements.

Read the article.



With Its 2018 Tax Cut, Wells Fargo Could Pay Its $1 Billion Fine 3 Times and Still Have Cash to Spare

The $1 billion fine levied by federal regulators against Wells Fargo is unlikely to hobble or even slow down the bank, thanks to the massive corporate tax cut passed by Congress last year, reports The Washington Post.

Reporter Renae Merle explains: “Just in the first quarter, Wells Fargo’s effective tax rate fell from about 28 percent to 18 percent, saving it more than $600 million. For the entire year, the tax cut is expected to boost the company’s profits by $3.7 billion, according to the Goldman Sachs report.”

“Despite its regulatory headaches, Wells Fargo remains massively profitable. The bank reported Friday that although the fine drove down its first-quarter profits by $800 million, it still netted $4.7 billion,” Merle writes.

Read the Post article.




‘Tax Case of the Millennium’ Hits High Court: A Primer

Oral arguments in the biggest U.S. Supreme Court tax case in years are just days away, reports Bloomberg Law.

Oral arguments in South Dakota v. Wayfair are scheduled for Tuesday, April 17.

Reporter Ryan Prete writes that the case directly challenges the 1992 decision in Quill Corp. v. North Dakota, prohibiting states from imposing sales tax collection obligations on vendors lacking an in-state physical presence.

“The case has set off perhaps the largest amount of state and local tax-related activity in the past decade as states have tried to ‘kill Quill’ as online commerce has replaced traditional brick-and-mortar markets,” according to Prete.

He quotes Max Behlke, director of budget and tax at the National Conference of State Legislatures, as saying the South Dakota case is the “tax case of the millennium.”

Read the Bloomberg article.



No-Poach Agreements Targeted by Plaintiffs, Enforcement Agencies and Senators

Agreements among companies to not hire each other’s workers are more risky than ever, warns Pepper Hamilton LLP in a post on its website.

“The DOJ’s Assistant Attorney General for the Antitrust Division, Makan Delrahim, stated on January 19 that the division has criminal cases targeting these agreements in the works,” the post says. “Meanwhile, lawsuits challenging no-poach agreements in technology, entertainment, health care and other industries have settled, sometimes for hundreds of millions of dollars. The DOJ announced its latest settlement, a civil settlement with two rail equipment suppliers, on April 3, underscoring that it did not bring criminal charges only because the suppliers ended their agreements before the FTC and DOJ issued guidance on ‘no-poach’ agreements in October 2016.”

The article concludes with some actions that firms should take to identify and limit their exposure.

Read the article.



Federal Contractors’ Guide to SBA Set-Aside Contracts, Size Standards, Size Protests, and Affiliation

Fox Rothschild LLP has posted its Federal Contractors’ Guide to Small Business Administration Set-Aside Contracts, Size Standards, Size Protests, and Affiliation.

The federal government sets aside a significant portion of its procurement dollars each year for purchasing goods and services from small businesses. Small business set-aside procurements and small business contract awards (“Set-Aside Procurements” and “Set-Aside Contracts,” respectively) provide substantial opportunities for a certified small business concern (SBC) to compete for and perform federal contract work. However, SBCs awarded Set-Aside Contracts are frequently subjected to size protests filed with the U.S. Small Business Administration (SBA) by disappointed competitors looking to challenge the awardee’s size, and if successful, to disqualify the awardee from the procurement.

The Fox Rothschild LLP Guide advises federal contractors on the following issues and concepts:

●SBA Set-Aside Procurements, Set-Aside Contracts, and Size Standards;
●The parameters and purposes for SBA size protests, how they are filed, and how contractors can avoid and defend against such protests; and
●The parameters of SBA affiliation, which contractors can use to challenge Large Businesses masquerading as small business concerns, and, as importantly, must understand to protect themselves from being adversely affected by a finding of affiliation at the hands of a size protest.

Download the guide.



Wells Fargo Faces $1 Billion Fine to Settle Loan Abuses

Reuters reports that Wells Fargo & Co. has been offered a penalty of $1 billion by regulators to resolve outstanding investigations related to auto insurance and mortgage lending abuses, the third-largest U.S. bank by assets said on Friday.

The news agency previously had reported that the Consumer Financial Protection Bureau and Office of the Comptroller of the Currency were preparing a fine of up to $1 billion for Wells Fargo’s auto insurance and mortgage lending abuses.

“The U.S. Federal Reserve has also imposed restrictions on the bank’s growth, forbidding it to expand its balance sheet beyond 2017 levels until it makes internal changes that addressed its board and risk management,” according to the latest Reuters report.

Read the Reuters article.



How Big Could Facebook’s Fine Theoretically Get? Hint: Four Commas, and Counting

Former Federal Trade Commission officials have been pulling out their calculators in recent weeks trying to figure out just how big a fine the commission could levy against Facebook for its latest privacy mishaps, The Washington Post reports.

White former FTC chairman William Kovacic joked that the potential fine could total “more money than there is on the planet,” it’s unlikely the FTC would levy a fine so large that it would imperil the future of Facebook, report Craig Timberg and Tony Romm.

They write that David Vladeck, a former FTC director of consumer protection who oversaw the consent decree with Facebook, says he expects the commission to find new violations in light of the company’s revelations last week. Vladeck estimates the probable fines in the vicinity of $1 billion, a record for FTC privacy fines.

Read the Post report.



Enforcement Actions at Consumer Watchdog Agency Halt Under Trump

Image by Aliman Senai

In the 135 days since the Trump administration took control of the nation’s consumer watchdog agency, it has not recorded a single enforcement action against banks, credit card companies, debt collectors or any finance companies whatsoever, according to an Associated Press review.

Reporter Ken Sweet writes that’s likely no fluke: “Mick Mulvaney, appointed acting director of the Consumer Financial Protection Bureau in late November, promised to shrink the bureau’s mandate and take a much softer approach to enforcement, and records reviewed by The Associated Press indicate he has kept his word.”

Tthe bureau issued an average of two to four enforcement actions a month under former Director Richard Cordray, President Obama’s appointee. But the database shows zero enforcement actions have been taken since Nov. 21, 2017, three days before Cordray resigned.

Read the AP article.



Facebook Could Face Record Fine, Say Former FTC Officials

The Washington Post reports that Facebook’s disclosure that its search tools were used to collect data on most of its 2.2 billion users could potentially trigger record fines and create new legal vulnerability for not having prevented risks to user data, three former federal officials said.

“The three former officials, all of whom were at the Federal Trade Commission during the privacy investigation that led to a 2011 consent decree with Facebook, said the company’s latest mishap may violate the decree’s provisions requiring the implementation of a privacy program,” according to reporters Craig Timberg and Tony Romm.

They quote David Vladeck, who was head of the FTC’s bureau of consumer protection when the decree was drafted and signed by Facebook, as saying that Facebook could face fines of $1 billion or more for this and the mishap in which Cambridge Analytica improperly gained access to information on as many as 87 million Facebook users.

Read the Post report.



Renewable Energy Deals Targeted for More Scrutiny in New Trade Report

The renewable energy industry, now designated as a technology and innovation-related area of special concern to the protection of the U.S. industrial and scientific base, is one of seven sectors that the U.S. Trade Representative recently identified as being of significant national security concern, writes Stephen Paul Mahinka in the Power & Pipes blog for Morgan Lewis.

“The USTR’s primary concern in its investigation was with acquisitions and investments related to technology transfer, intellectual property, and innovation in seven industry sectors that it specifically identified as being of significant national security concern. Renewable energy is one of the seven sectors highlighted for increased scrutiny, through expanded reviews of certain types of deals by the Committee on Foreign Investment in the United States,” according to the post.

Although the report focused on Chinese acquisitions and investments, the identification of renewable energy as one of the seven main industry sectors of concern means that acquisitions and investments by entities in other foreign nations may also be subject to heightened scrutiny by the committee, explains Mahinka.

Read the article.



PwC Faces Largest-Ever Auditor Malpractice Damages Verdict

MarketWatch is reporting that the Federal Deposit Insurance Corp. could collect the largest damage award ever against a global public accounting firm when a federal judge decides what to award the agency after a verdict against PricewaterhouseCoopers.

The judge in the case has already ruled that PwC had been professionally negligent in not detecting the criminal fraud that led to the failure of Colonial Bank Group in 2009, according to reporter Francine McKenna.

The FDIC has asked Judge Barbara Rothstein to award it $625 million in compensation for the bank’s alleged net losses from a fraud with mortgage originator Taylor Bean and Whitaker, which also failed in 2009.

Even PwC’s estimate of damages based on the judge’s decision, per court filings, of $306 million would result in the largest-ever final judgment or jury verdict for accounting malpractice, MarketWatch reports.

Read the MarketWatch article.



Webinar Recording Available on SEC Cybersecurity Guidance

Hunton & Williams LLP has posted an on-demand webinar discussing the Securities and Exchange Commission’s recently released cybersecurity guidance.

For the first time since its last major staff pronouncement on cybersecurity in 2011, the SEC has released new interpretive guidance for public companies that will change the way issuers approach cybersecurity risk, the firm says on its website.

Presenters are partners Lisa Sotto, Aaron Simpson and Scott Kimpel, and senior associate Brittany Bacon. They discuss the new guidance, along with changes in regulatory obligations under EU law with respect to the upcoming GDPR and historical SEC enforcement actions related to cybersecurity.

Watch the on-demand webinar.



Judge Dismisses Exxon’s Lawsuit, Letting Multi-State Fraud Investigation Continue

Exxon Mobil Corp.’s attempt to derail a multistate fraud investigation into the company’s public comments about climate change flamed out in a New York court, according to wire services, via The Dallas Morning News.

The report says a U.S. district judge in New York on Thursday dismissed Exxon’s lawsuit claiming officials in New York and Massachusetts conspired with environmental groups in planning the securities-fraud probe and made up their minds about its outcome before it started.

Judge Valerie Caproni said in her ruling that Exxon’s tactic of suing in federal courts in New York and Texas to stop the state probes “running roughshod over the adage that the best defense is a good offense.”

Read the Dallas News article.



Barclays Wins Its DOJ Gamble With $2 Billion Mortgage Settlement

Bloomberg is reporting that Barclays Plc agreed to pay $2 billion to settle a probe into how it sold the sort of mortgage bonds that fueled the financial crisis, securing a penalty less than half of what U.S. authorities originally demanded.

Reporters Stephen Morris and Gavin Finch explained: “The British lender was the only bank to push back against the size of the settlement demanded by the Justice Department, prompting the prosecutor to file a lawsuit in the waning days of the Obama administration in 2016. The DOJ wanted a fine of about $5 billion, but the bank refused to pay any more than $2 billion, Bloomberg news reported in 2016.”

Two former executives at the bank, Paul Menefee and John Carroll, also settled Thursday and agreed to pay $2 million to resolve claims without admitting wrongdoing.

Read the Bloomberg article.



The Buy American Act and Trade Agreements Act: Understanding Federal Domestic Preference Requirements

PilieroMazza has posted an on-demand webinar discussing compliance with new laws requiring or providing a preference for the purchase of goods, products, or materials produced in the United States.

President Trump signed Executive Order 13788 on April 18, 2017, aimed at tougher enforcement of the “Buy American Laws” which are those laws requiring or providing a preference for the purchase of goods, products, or materials produced in the United States. Given the Trump administration’s intent for stricter enforcement of domestic preference requirements, government contractors need to stay abreast of the relevant laws and regulations, such as the Buy American Act  and the Trade Agreement Act, the firm says on its website.

Webinar topics include:

  • The general requirements of the BAA and TAA
  • The applicability of the requirements and exceptions to their applicability
  • Tests for determining a product’s country of origin
  • Relevant FAR clauses and certifications
  • The potential penalties for non-compliance
  • Practical tips and strategies for compliance

Watch the on-demand webinar.