AT&T Counsel, an Ex-Trump Attorney, Calls DOJ’s Suit on Time Warner Deal ‘Fake Antitrust’

“There is no credible evidence” that AT&T’s proposed $85.4 billion acquisition of media powerhouse Time Warner poses any threat to industry competition or consumer prices, AT&T attorney Dan Petrocelli told CNBC on Tuesday.

Petrocelli is the lead outside counsel for AT&T in the case, in which the Department of Justice has sued to block the deal.

He cited increasing competition for television and video distribution and content as a reason not to block the proposed merger, writes reporter Matthew J. Belvedere.

“Earlier this month, reports circulated that the government had demanded AT&T sell its DirectTV unit or Time Warner’s Turner Broadcasting, operator of the CNN, as a condition of approval,” Belvedere explains. “However, the government had pushed back at those reports, and AT&T said it had no intention of selling CNN.”

Read the CNBC report.



Now That FERC Is Back In Action, Will It Keep Pace With States on Energy Storage?

While the Federal Energy Regulatory Commission continues its investigation of the notice of proposed rulemaking on deployment of energy storage, state mandates and incentives will likely unfold ahead of federal rules moving toward a more organized market for energy storage, according to a post by Morgan, Lewis & Bockius.

Levi McAllister and Brooke E. McGlinn write:

State action is robust, and state regulatory authorities are routinely emerging as thought leaders in energy storage initiatives. As a result of these initiatives, storage developments continue and electric utilities pursue storage resource procurements. Such procurements raise a host of issues and considerations with which electric utilities must grapple, and those issues could be addressed (in part, at least) through federal action that is uniformly applicable. Nevertheless, FERC action in energy storage remains largely absent.

Read the article.

Wall Street Penalties Have Fallen in Trump’s First Year, Study Says

Jay Clayton

In its latest fiscal year, Wall Street’s top regulator sought the smallest amount of penalties since 2013, a drop that took place as the agency went months without permanent leadership and could show a softer approach to policing wrongdoing, Bloomberg reports.

“The U.S. Securities and Exchange Commission tried to obtain $3.4 billion in fines and disgorgement from companies and individuals during the 12 months ended in September, according to data collected by Urska Velikonja, a Georgetown University law professor,” write reporters Matt Robinson and Benjamin Bain. “The SEC filed 612 enforcement cases, also the fewest in four years, Velikonja’s research shows.”

Velikonja points out that since Jay Clayton — the former Wall Street deals lawyer appointed by Trump — took over as SEC chair in May, the agency has pursued just two sanctions against large financial firms. But in the same period a year earlier, more than a dozen big financial companies faced SEC sanctions.

Read the Bloomberg article.



AT&T Would Win a Fight With DOJ Over Time Warner Deal, Analyst Says

Image by Mike Mozart

AT&T and the Justice Department could be on their way to a major court battle, which one analyst believes the company stands a strong chance of winning, CNBC reports.

AT&T’s wants to acquire Time Warner, but the government wants the company first to sell Turner Broadcasting, which includes CNN, or sell DirecTV. The company has made it clear that it has no intention of selling any of those assets.

“If this does go to court, we think AT&T holds a strong position and would likely prevail,” Paul Gallant, a Washington analyst at Cowen Research, said Thursday in a note to clients.

CNBC reporter Jeff Cox writes that Cowen believes the  company has three advantages that would give it an edge in its fight with the DOJ.

Read the CNBC article.



Insurance Giant Receives New York Subpoena on Sales Practices

The New York Times is reporting that New York’s attorney general has subpoenaed TIAA, the giant insurance company and investment firm, seeking documents and information relating to its sales practices, according to people briefed on the inquiry.

Last month, the newspaper raised questions about the firm’s sales methods. TIAA oversees almost $1 trillion in client assets, for more than four million workers at thousands of nonprofits, according to reporter Gretchen Morgenson.

A related SEC complaint was filed by former TIAA employees who contend they were pressured to sell products that generated more revenue for the firm but were more costly to clients while adding little value.

Read the NYT article.

U.S. States Allege Broad Generic Drug Price-Fixing Collusion

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A large group of U.S. states accused key players in the generic drug industry of a broad price-fixing conspiracy, reports Reuters.

Reporter Karen Freifeld writes: “The states said the drugmakers and executives divided customers for their drugs among themselves, agreeing that each company would have a certain percentage of the market. The companies sometimes agreed on price increases in advance, the states added.”

The suit names 18 companies and subsidiaries and named 15 medicines. Mylan NV, Teva Pharmaceuticals USA, Ascend Laboratories and Encure Pharmaceuticals are among the 18 companies named.

The Los Angeles Times also covered Mylan’s challenges: “A price-fixing noose tightens around Mylan, the company that profiteered from the Epipen.

Read the Reuters article.



Silicon Valley Software Startup, Ex-CEO Fined Nearly $1M

SECSilicon Valley software startup Zenefits and its co-founder Parker Conrad have been fined nearly $1 million by the U.S. Securities and Exchange Commission as part of a settlement over charges that they had misled investors, reports Reuters.

Zenefits will pay a $430,000 penalty and Conrad, who resigned as chief executive from the company in early 2016, has been fined more than $533,000, according to Reuters reporter Heather Somerville.

“The SEC found that Zenefits made ‘false and misleading statements and omissions’ to company investors by failing to disclose that it was not compliant with state insurance regulations,” Somerville reports. “Zenefits employees had sold health insurance without proper licensing, the company said, a violation that led to fines from several states.”

Read the Reuters article.


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Senate Kills Rule On Class-Action Suits Against Financial Companies

CFPB - Consumer Financial Protection BureauThe Senate has voted 51-50 to get rid of a banking rule that allows consumers to bring class-action lawsuits against banks and credit card companies to resolve financial disputes, NPR reports.

Vice President Pence cast the tie-breaking vote to rollback the Consumer Financial Protection Bureau rule banning restrictive mandatory arbitration clauses found in the fine print of credit card and checking account agreements, writes NPR reporter Scott Neuman.

President Trump is expected to sign the measure, which has already been approved by the U.S. house.

Neuman writes: “CFPB said it was redressing a situation in which consumers were forced ‘to give up or go it alone — usually over small amounts,’ while companies were able to ‘sidestep the court system, avoid big refunds, and continue harmful practices.'”

Read the NPR article.


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The Coal Ash Rule: Regulation, Litigation, and Strategies to Minimize Risk

Steptoe & Johnson’s Energy and Environmental, Products & Mass Tort Groups will host a webinar to discuss the implementation of the Coal Ash Rule, the current litigation landscape surrounding coal ash, and strategies for avoiding courtroom and regulatory challenges.

The complimentary one-hour event will be Wednesday, Dec. 13, 2017, at noon Eastern time.

The Disposal of Coal Combustion Residuals from Electric Utilities Final Rule (the Coal Ash Rule) is the first federal rule to regulate coal ash waste disposal, the firm says on its website. The Coal Ash Rule has proven controversial since it was first announced in 2015 and has given rise to regulatory changes, mass tort actions, and citizen suits under the Resource Conservation and Recovery Act (RCRA). The US Environmental Protection Agency recently announced that it is considering rolling back portions of the Coal Ash Rule. Growing controversies over the disposal of coal ash, the Coal Ash Rule, and the future of coal ash regulation are not likely to end soon.

Register for the webinar.



HIPAA Compliance Checklist Webinar

Compliancy Group will present a webinar on HIPAA compliance. The event will be Tuesday, Oct. 17, at 2 p.m. EDT.

“Through the years of helping the Healthcare industry become HIPAA compliant and pass their HIPAA audits, we continually run into the same HIPAA compliance issues and questions,” the company says on its website. “In this webinar we will run through a HIPAA compliance checklist of what needs to be done for your organization to meet the Federal Requirements. All attendees will receive a FREE personal walk through of their organization and to answer all their questions, concerns and to focus you on what your organization needs.”

Questions discussed include:

  • What do I need to do to become HIPAA compliant?
  • I’ve done my Security Risk Assessment, now what?
  • Is there a such thing as overkill when it comes to HIPAA?
  • Can you automate HIPAA compliance completely?
  • Is group or individual training sufficient?

Register for the webinar.


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Will the Supreme Court End Employment Contract Arbitration Clauses?

Employment contractThe validity of arbitration clauses in employment contracts is unclear and is now before the U.S Supreme Court, points out Mary An Couch in Bradley Arant Boult Cummings LLP’s Labor & Employment Insights blog.

The Supreme Court heard oral argument in National Labor Relations Board v. Murphy Oil, USA, Inc. and two other consolidated cases about whether such clauses violate the National Labor Relations Act (which governs employer-employee relations) or whether the Federal Arbitration Act (which governs arbitration agreements) trumps the NLRA, she writes.

The relevant cases being considered are from the 5th Circuit, which found the arbitration clause did not violate the NLRA, and the 7th and 9th circuits, which found similar clauses unenforceable.

Read the article.


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Trump’s Legal Team Isn’t Playing Well Together

Tensions have been building since lawyer Ty Cobb joined the White House legal team last summer to deal with the Russia investigation, reports Bloomberg Law.

At first, the cracks in the team showed up when Cobb tried to use some lawyers from the staff of White House counsel Donald McGahn. McGahn didn’t cooperate with that plan, so Cobb had to build a team from scratch, report Tom Schoenbert and Shannon Pettypiece.

“While Cobb seeks to have the probe resolved as quickly as possible, McGahn wants to cooperate with Mueller while ensuring that decisions made now don’t box in Trump down the road or bind future presidents, says a person familiar with the investigation. McGahn’s lawyer, William Burck, says his client hasn’t tried in any way to block Cobb’s efforts,” the reporters write.

Read the Bloomberg article.


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Feds Accuse Georgia GC of Helping Orchestrate Client’s Ponzi Scheme

A civil complaint filed by the U.S. Securities and Exchange Commission alleges that the general counsel for Credit Nation Capital was an “active participant” in fleecing elderly and unsophisticated investors out of their savings, reports the Atlanta Journal Constitution.

Reporter Johnny Edwards writes that Celello is accused of fraud, aiding and abetting and routing investors’ money into his own pocket.

Last year a federal judge effectively dismantled a Credit Nation network of investment companies, subprime auto loan businesses and limited liability companies, and a court-appointed receiver is currently trying to return some $10 million to dozens of investors who lost an estimated $61 million, according to Edwards.

Read the Journal Constitution‘s article.




Equifax Breach Caused by Lone Employee’s Error, Former CEO Says

Cybersecurity - hacking - hackerThe Equifax data breach happened because a single employee failed to implement software fixes, the company’s former chief executive told members of Congress on Tuesday.

The New York Times reports that Richard F. Smith, who stepped down last week, repeatedly apologized to the members of the House Energy and Commerce Committee — and the American people — for the security lapse.

“Angry members of the committee tore into Mr. Smith and pressed him on how a credit bureau of Equifax’s size, responsible for safeguarding billions of sensitive records on Americans’ financial lives, could have allowed so much data to escape, unnoticed,” write Tara Siegel Bernard and Stacy Cowley.

Read the NYT article.


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Undefinitized Contracts – Turner Construction Co. v. Smithsonian Institution

The Civilian Board of Contracts Appeals recently issued a decision in Turner Construction Co. v. Smithsonian Institution, addressing how a board should respond if the contracting parties cannot agree to a firm price for an undefinitized contract that a contractor fully performs, reports Lisa Markman for Bradley Arant Boult Cummings LLP.

The board is the federal administrative court tasked to resolve disputes between government contractors and federal civilian executive agencies,  she explains.

“The case was unique because Turner and the Smithsonian were supposed to have negotiated a firm fixed price contract during the design phase of the contract, but the parties failed to do so,” Markman writes. “This failure meant that the Smithsonian could not rely on ‘many of the safeguards and defenses that would have been available to it under a firm fixed-price agreement,’ including the contract’s equitable adjustment clause. Instead, the CBCA agreed with Turner and concluded that Turner was entitled to recover in quantum meruit.”

Read the article.



Tax Reform Plan Makes C Corporations More Appealing

Taxes - IRS - Internal Revenue ServiceThe Republican tax reform plan released this week proposes changes that are likely to make C corporation structures more appealing to U.S. business owners and investors, according to a post on the website of Androvett Legal Media & Marketing.

“The reduction of the top corporate tax rate from 35 percent to 20 percent could certainly lead to a renewed interest in C corporations,” said Dallas tax lawyer Nathan Smithson of Jackson Walker LLP. “An investment in a corporation is subject to two levels of federal income taxation – once at the corporate level, and then again when a distribution is made out of the corporation to the investor. The proposed 20 percent corporate tax rate would make this investment far more palatable.

“The plan also lowers rates for partnerships and LLCs. However, investors and business owners who do not want to subject themselves to the more complex partnership tax rules – including paying taxes on their share of entity-level income – may now want to convert their entities to corporations,” said Smithson, who advises corporations, LLCs and partnerships on federal tax planning.

“An original investment in stock of a qualifying small business corporation can be sold tax-free if held for five or more years. A drop from a 35 percent to a 20 percent rate may make this type of investment a no-brainer for investors looking to minimize their overall taxes on corporate income.”


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SEC Probing Pepsi’s Former GC After She Claimed She Was Wrongly Ousted

Former general counsel for PepsiCo Inc. Maura Smith is now the focus of an investigation by the SEC after she claimed she was fired in retaliation for the way she handled earlier internal probes concerning allegations of wrongdoing in Russia, according to a report at

The Wall Street Journal originally reported on the investigation.

Smith was Pepsi’s general counsel for little more than a year, until June 2012, when she was tasked with overseeing outside lawyers the company hired to investigate business practices with Wimm-Bill-Dann, a Russian dairy product and juice maker Pepsi acquired for $5 billion in 2011.

Read report.



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Patent Owners Trying to Use Native American Legal Rights as a Shield

The newest lawsuit seeking royalty payments from Apple is likely a first: a recently created plaintiff, MEC Resources LLC, is wholly owned by a Native American tribe.

Ars Technica reports that The MEC lawsuit appears to be using Native American legal rights to avoid having the U.S. Patent Office perform an “inter partes review” that could invalidate the patent.

Joe Mullen reports that MEC Resources is wholly owned by the Mandan, Hidatsa, and Arikara Nation, also known as the Three Affiliated Tribes.

And in another case, Allergan recently gave a set of  valuable patents to the New York-based Regis Mohawk Tribe, explicitly to avoid having the USPO review their patents in inter partes review.

Read the Ars Technica article.


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What Every In-House Attorney Needs to Know About Federal Contracting

Centre Law & Consulting will present a one-day instruction that combines the basics of federal government contracting with the nuts and bolts of compliance issues, subcontractor issues, and hot topics in the industry.

The event will be Oct. 17, 2017, in Tysons, Va.

Topics will include:

  • Basic Principles in Federal Contracting
  • How the Government Buys
  • Types of Contracts
  • Labor and Employment Law Issues
  • Anti-Kick Back and Gifts
  • Organizational Conflict of Interest & Personal Conflict of Interest
  • Mandatory Disclosure and Ethics Issues
  • Changes, Inspection & Acceptance
  • Delays & Payment
  • Termination of Convenience / Termination of Default
  • Claims, Disputes, and Appeals
  • Prime/Subcontractor Disputes
  • Bid Protests
  • Privilege Issues and Attorney Work Product
  • Ethic Issues in Internal Investigators and Managing Relator Lawsuits

Register for the event.



Kent Sullivan Appointed Texas Commissioner of Insurance

Jackson Walker partner Kent Sullivan was named the state Commissioner of Insurance by Texas Governor Greg Abbott on Thursday. Sullivan will leave the firm to accept the position, where he will oversee the Texas Department of Insurance, which regulates the insurance industry and protects Texas consumers.

Sullivan joined Jackson Walker in 2015 and has since served as co-chair of the firm’s appellate practice group. Recently, he was also appointed co-chair of the government and internal investigations group. He has represented clients in complex civil litigation, government relations, and investigations.

“Kent brought a new dimension to Jackson Walker’s litigation and appellate groups,” said firmwide managing partner Wade Cooper. “We wish him all the best in his new position and know that his deep experience will bring him much continued success in this substantial role.”

In the past, Sullivan was the Texas First Assistant Attorney General, a justice on the Texas Court of Appeals, and a district judge. In addition, he has more than 25 years of private practice experience.

“I have thoroughly enjoyed the years spent practicing at Jackson Walker,” said Commissioner Sullivan. “It’s been exciting to be a part of such a fast growing and well-respected firm. I look forward to beginning the next chapter and serving the people of Texas.”


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