Hospital’s Ex-GC Sues Former Employer and Two Board Members

The former general counsel for the South Florida Hospital District has sued the district and two of its board members, claiming they fired her in retaliation for trying to stop them from violating the law, reports the South Florida Sun-Sentinel.

Reporter Cindy Krischer Goodman of the Sun-Sentinel explains:

Kimarie Stratos claims the district’s board of commissioners wrongly fired her in September after eight years on the job. In her lawsuit, she alleges her termination happened in retaliation for repeatedly reporting Sunshine Act violations, as well as objections to releasing confidential medical information, wasting of public funds, and other actions by board members. By firing her, she alleges the district has violated the Florida Whistle Blowers Act.

Read the Sun-Sentinel article.



San Antonio Bans Chick-fil-A From Its Airport, Sparking Controversy

The San Antonio city council recently voted to exclude Chick-fil-A from its list of airport vendors based on the company’s views on the LGBTQ community. Since then, Texas Attorney General Ken Paxton has opened an investigation into whether the city violated state law and asked the U.S. Secretary of Transportation to explore whether the city violated federal law, according to a post on the website of Androvett Legal Media & Marketing.

“On the one hand, you have the city of San Antonio running a business – the airport, and related restaurants – as opposed to a ‘traditional’ government function like a public park,” said Dallas attorney David Coale of Lynn Pinker Cox & Hurst. “In that setting, the city has a clear interest in anti-discrimination policy as well as an interest in its overall image.”

But, Coale says Chick-fil-A has two related arguments that bolster its case against removal from the airport. “One, it has a right to engage in political advocacy outside of this business setting, and two, that advocacy has nothing to do with the operation of the airport. The city’s legitimate and powerful interests in running its airport the right way is just not in play.”

“So, in sum, the City starts out ahead, but Chick-fil-A could catch up if it shows that this decision was based solely on its unrelated speech rather than a standard contract-procurement process.”

Coale also adds that the underlying issue is the broader question of “unconstitutional conditions.”

“Can the government do indirectly what it cannot do directly? The government clearly cannot ban Chick-fil-A from giving to groups with certain policy views about gay rights. Can it discourage Chick-fil-A from doing so by putting strings on its government contracts? That’s a complex area of law without a lot of clear, general answers.

“The 55-mph speed limit is the most famous example of this issue – Congress cannot directly set speed limits on state highways because, by definition, they don’t involve interstate commerce. But it could condition federal highway funds on states changing their local speed limits to 55 mph.”

Pepper Hamilton Ordered to Turn Over Baylor Investigation Materials to Plaintiffs’ Attorneys

A U.S. district judge has ordered Pepper Hamilton LLP to turn over materials tied to the law firm’s 2015-16 investigation that led Baylor University regents to report the school had fundamentally failed in its Title IX implementation duties, reports the Waco Tribune-Herald.

“The significance is we are continuing to get to the bottom of who, what, where and when in regard to the failures at Baylor,” said Jim Dunnam, a Waco attorney who represent the 15 plaintiffs.

Plaintiffs’ lawyers had filed for a subpoena in March 2017 seeking materials from Pepper Hamilton and in June filed a motion to compel the firm to comply, but the firm did not respond to the request, according to the Tribune-Herald‘s Phillip Ericksen.

Read the Tribune-Herald article.



Whistleblowing General Counsel Gets $1.87 Million Payday

The Houston Chronicle reports that the former general counsel of the Houston Housing Authority won $1.87 million in a lawsuit against the agency after she accused it of retaliation.

“Karen Miniex, the former general counsel for the agency, alleged her boss at the housing agency retaliated against her after she investigated fraud in the agency’s voucher program targeted at veterans,” according to the report. “The trial was held before U.S. District Judge Nancy F. Atlas.”

A statement from the agency said an appeal is being considered, should the judge uphold the jury’s verdict.

Read the Houston Chronicle article.



Federal Judge Sets April 4 Hearing for Elon Musk Contempt Case

A federal judge in New York will hear oral arguments next week in a lawsuit brought by the US Securities and Exchange Commission that seeks to hold Tesla CEO Elon Musk in contempt for violating a settlement deal, according to a CNN report.

Judge Alison Nathan will consider the SEC’s request that Musk be held in contempt for violating a settlement agreement reached last year, which required he get pre-approval for social media posts about the electric car company, writes CNN’s Victoria Cavaliere.

Musk tweeted on Feb. 19 that Tesla would produce “around 500k [cars] in 2019.” Hours later, he posted a follow-up tweet indicating that the company will actually deliver just 400,000 cars this year.

Although Musk corrected his mistake, regulators said he had “once again published inaccurate and material information about Tesla to his over 24 million Twitter followers,” according to court papers.

Read the CNN article.



Energy Market Manipulation Remains a Hot Issue at FERC

The Federal Energy Regulatory Commission is continuing to aggressively investigate and bring enforcement action against companies that engage in energy market manipulation, reports WilmerHale in its 10-in-10 Hot Topics in Energy Series.

These investigations and proceedings mirror Commodity Futures Trading Commission (CFTC) action on financial market manipulation in the energy area.

“As the recent Powhatan and Silkman decisions indicate, the body of case law defining FERC’s enforcement authority continues to develop. Regulated companies should be aware that the statute of limitations in market manipulation cases will likely be read permissively. A strong internal compliance program, coupled with self-reporting in appropriate instances, can help reduce risk,” according to the article’s authors.

Read the article.



Biglaw Firm Sued for Role in $1.36B Grocery Chain Buyout

Cravath, Swaine & Moore is being sued by a former public shareholder of a grocery chain in a class action that alleges the firm breached its fiduciary duty by providing tainted advice that directed the grocer toward a buyer, private equity group Apollo Global Management, reports Bloomberg Law.

In the complaint, the former shareholder claims Cravath crafted a “false and misleading” U.S. Securities and Exchange Commission filing relating to the 2016 $1.36 billion leveraged buyout of The Fresh Market by Apollo.

The complaint alleges Cravath drafted the SEC filing “to procure stockholder approval and cover up prior wrongdoing,” and in doing so, pocketed $5.5 million in fees in what amounted to “a sham sale process.”

Read the Bloomberg article.



Webinar: Obtaining Software Patents Using New Patent Office Guidance

Intellectual property IPFitch, Even, Tabin & Flannery LLP will present a free webinar, “Back on Track?: Obtaining Software Patents Using New Patent Office Guidance,” featuring Fitch Even attorneys Timothy R. Baumann and George N. Dandalides.

The event will be on Wednesday, March 20, 2019, at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT. It also will be available as an on-demand webinar after presentation.

Obtaining patents for software-related inventions has become more difficult in recent years, in the U.S. and throughout the world. However, recently released USPTO guidance addressing patent eligibility under 35 U.S.C. § 101 and § 112, among other developments, offers some amount of much-needed clarity and direction.

During this webinar, presenters will share information and insights on:
• USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance
• USPTO’s 2019 Guidance on Examining Computer-Implemented Functional Claim Limitations
• How to use the recent guidance fruitfully, including claim-drafting strategies and evaluation of example claims
• Drafting strategies for filing software patent applications in foreign jurisdictions
• What the future may hold for software patentability

Register for the webinar.



Hackers Shut Down Boston Legal System for Weeks, Seeking Payment in Bitcoin

A cyberattack on the agency overseeing Boston public defenders has caused a weekslong slowdown, disabling e-mail systems, delaying some hearings, and hanging up payments for the private attorneys who represent clients, reports The Boston Globe.

“The Committee for Public Counsel Services has been cleaning up for two weeks after a ransomware attack locked up its servers, with the culprits demanding that a ransom be paid in bitcoin,” writes the Globe‘s Andy Rosen. “The agency refused to pay, because it has backup files it can use to restore the system.”

A similar attack hit the Jackson County, Georgia, government internal network recently, forcing most of the systems offline, according to ZDNet. In that case, the county paid $400,000 to cyber-criminals week to get rid of the ransomware infection and regain access to its IT systems.

Read the Globe article.



Ruling Allows Sandy Hook Case to Go Forward: A Path Around Federal Protection for Gun Makers?

Image by Mitch Barrie

The Connecticut Supreme Court Thursday narrowly reversed a ruling by a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed, reports the Hartford Courant.

The decision that remanded the landmark gun case back to Bridgeport Superior Court possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits, writes the Courtan‘s Dave Altimari.

He explains:

The ruling paves the way for the families to subpoena internal documents on how the gun companies have marketed the AR-15, which has become the weapon of choice for mass shooters. The gun manufacturers have closely guarded information on how they market the assault weapons.

Read the Courant article.



What Not to Do: Construction Contractor Charged With Lying to OSHA

A post in the Seyfarth Shaw Workplace Safety and Environmental Law Alert Blog discusses the case of a construction contractor facing a perjury charge after he allegedly testified that he did not twice order employees to work on a roof. They fell through the roof both times.

During the investigation, OSHA discovered text messages indicating that the contractor had indeed issued the orders.

The case provides two important lessons, according to the authors of the post: Don’t lie under oath, especially when there exists discoverable evidence to the contrary, and be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.

The contractor faces a potential penalty of five years in a prison and a $250,000 fine, if convicted.

Read the article.



New York Regulator Subpoenas Insurance Broker Over Trump Organization Dealings

Reuters is reporting that New York State’s financial regulator has subpoenaed the insurance broker for President Donald Trump’s family business, citing a person familiar with the matter.

The subpoena came after former Trump lawyer Michael Cohen told Congress the president inflated the value of assets to insurers, according to Reuters reporter Suzanne Barlyn.

The source said the New York State Department of Financial Services issued the subpoena late Monday to Aon Plc, a global insurance broker and risk management firm that works for the Trump Organization. The subpoena seeks files about Aon’s dealing with Trump and Trump Organization since 2009, the person said.

Read the Reuters article.



Lawsuit: Trump Family-Planning Rule ‘Politicizes’ Medicine

A new Trump administration rule for family-planning grants could trigger a national public health crisis, the American Medical Association and Planned Parenthood said in a lawsuit Tuesday challenging the rule, reports the Associated Press.

In addition to the AMA/Planned Parenthood lawsuit, the rule is being challenged in a lawsuit filed Monday by California officials and another filed Tuesday by officials in 20 other mostly Democratic controlled states.

The Department of Health and Human Services rule would prohibit family planning clinics funded by the federal Title X program from making abortion referrals — a provision that critics denounce as a “gag rule.”

“Pregnancies that are unintended, and thus riskier, will increase. The number of abortions will also increase. And there will be fewer tests for sexually transmitted infections and cancer screens — putting patients and their partners at great health risk,” the lawsuit said.

Read the AP article.



Texas Judge Reprimanded for Telling Jury God Said Defendant Was Innocent

A Texas state district judge who was accused last year of trying to influence a jury verdict by saying God told him the defendant was innocent has been issued a public warning by the state agency that investigates judicial misconduct, reports the Austin American-Statesman.

Jack Robison acknowledged to the State Commission on Judicial Conduct that his conduct was improper, adding that it might have been caused by stress from treatment for a severe medical condition and the death of a close friend days before the trial began in January 2018, according to Statesman reporter Ryan Autullo.

The commission could have removed Robison from the bench.

“The commission revealed that it had received 18 complaints about Robison’s conduct, including from the Comal County criminal district attorney’s office, two jurors and numerous citizens who learned about the incident through media reports,” writes Autullo.

Read the Statesman article.



Florida Court Grants Emergency Suspension of Lawyer for Social Media ‘Attack of Massive and Continuous Proportions’

The ABA Journal reports that the Florida Bar has obtained the emergency suspension of a lawyer who attacked opposing counsel on social media, leading one of the targeted lawyers to obtain an injunction against stalking and the other to file a libel suit.

In its petition to the Florida Supreme Court, the Bar claimed Ashley Ann Krapacs “has launched an attack of massive and continuous proportions” on social media, the Florida Bar said in its emergency petition.

The petition alleges that Krapacs “began a social media blitz” on Facebook, Instagram, LinkedIn and YouTube after she moved to Florida from Texas and filed a petition for a domestic violence injunction against a former boyfriend.

She called an opposing lawyer  “a moron and a sexist and a bully” and said another lawyer was “a backstabbing traitor” for representing “misogynist pigs, misogynist bullies.”

Read the ABA Journal article.



Elon Musk Defiant As Judge Orders Him to Explain Tesla Tweets

A federal judge has ordered Tesla chief Elon Musk to explain by March 11 why he should not be held in contempt for what the Securities and Exchange Commission described as a violation of a settlement deal last year, reports the San Francisco Chronicle.

“Musk tweeted Feb. 19 that Tesla would make around 500,000 cars in 2019,” writes the Chronicle‘s Melia Russell. “Later that day, he sent a follow-up tweet saying that number represented Tesla’s ‘annualized production rate at end of 2019’ and it would only roll about 400,000 cars off the manufacturing line this year.”

Bloomberg explains that Tesla’s internal system to have an in-house lawyer vet Musk’s tweets didn’t work in this case because his “social-media minder didn’t bless” the Feb. 19 post:

The sitter — whose official title at Tesla is alternately Disclosure Counsel or Designated Securities Counsel — did step in after seeing the offending tweet and arranged to meet Musk to draft a clarifying post.

Read the SF Chronicle article.



UBS Lawyers Played Hardball With French Enforcers, Failed Spectacularly

Switzerland’s biggest bank hoped to settle a tax evasion case with French authorities for $204 millions. But when enforcers dismissed UBS Group’s offer, the bank’s legal team decided to play hardball, pushing the case to trial in the hope of wringing out a smaller penalty, according to a Bloomberg report. That effort failed spectacularly.

The bank has been ordered to pay more than $5 billion in the tax-evasion case — matching what was sought by prosecutors, reports Bloomberg’s Gaspard Sebag.

The article quotes Stephane Bonifassi, a Paris criminal lawyer not involved in the case: “It’s too early to draw any definitive conclusions given the appeals have just begun, but they took a risk in thinking they had a solid case and it’s clear now the strategy didn’t pay off.”

Read the Bloomberg article.



U.S. Supreme Court Asked to Review Zero Emissions Credit Schemes

High power - electric- gridIn two related cases, petitioners are asking the U.S. Supreme Court to strike down state generator subsidies that petitioners argue distort competitive wholesale power markets that are under the exclusive jurisdiction of the Federal Energy Regulatory Commission under the Federal Power Act, reports Verrill Dana in its Energy Law Update.

Associate Brian Marshall of Portland, Maine, explains:

Both cases concern “zero emission credits” (ZEC) schemes, one in Illinois and one in New York, that subsidize nuclear power plants. These ZEC subsidies allow otherwise uncompetitive nuclear plants to stay profitable and continue to operate, even if they fail to receive sufficient compensation in wholesale power auctions. Both the Second and Seventh Circuits have upheld the ZEC nuclear power subsidies.

Read the article.



Lawyer Told Prosecutor She ‘Doesn’t Know How To Act Like A Young Lady,’ Ethics Complaint Says

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened, the Detroit Free Press reports.

The complaint filed by the Michigan Attorney Grievance Commission accuses Clifford Woodards II of discourteous and unprofessional behavior in his March 2018 encounter with the prosecutor in Detroit’s 36th District Courthouse.

According to the complaint, Woodards challenged  the prosecutor, Heather Washington over a plea deal for his client in a traffic case. After she declined to agree to the deal without seeing the client’s driving record, Woodards acted aggressively, the complaint says.

According to the complaint:

Respondent said to Ms. Washington, something to the effect: “Little girl don’t talk to me and move out of my face” and/or “You need to back up little girl and know your place.”


Respondent told Ms. Washington that she “doesn’t know how to act like a young lady, acting immature.”

Read the Free Press article.




Trump’s Emergency Declaration Echoes Harry Truman Failed Attempt

President Trump has declared a national emergency to finance the building of a border wall, adding fuel to the controversial issue that closed the federal government for more than three weeks.

In a post on the website of Androvett Legal Media & Marketing, Lynn Pinker Cox & Hurst constitutional law expert David Coale says Trump’s emergency declaration is similar to President Harry Truman’s takeover of the steel industry to avoid a strike during the Korean War by the United Steelworkers of America.

The U.S. Supreme Court rejected the takeover in 1952’s Youngstown Sheet and Tube Co. v. Sawyer decision, largely because the president acted without congressional approval. Today’s situation, where Congress has repeatedly refused to fund the president’s border wall, has strong echoes of the Youngstown case, Coale says.

“As for defense spending, both the House and Senate, have the power to overrule a claim of emergency,” says Coale. “If the president can clear that hurdle, there probably are billions of dollars in ‘undesignated’ defense and homeland security money that he could try to access. But ‘undesignated’ does not mean ‘free to take, no strings attached,’ and defense contractors who expect to get paid from that money will likely sue from all directions, as will private landowners in the way of the wall’s path.”