Leading ethics and compliance software and services company NAVEX Global announced the release of its 2019 Ethics & Compliance Hotline Benchmark Report. The report, which includes the first full year of results since the #MeToo era began, shows an overall 18 percent increase in harassment reports during 2017 and 2018 with 41 percent of these reports substantiated.

“These findings reflect strong growth in the number of employees willing to speak out against harassment – and they should serve as notice to employers that #MeToo is a fundamental shift in employees’ willingness to tolerate harassment,” said Carrie Penman, chief compliance officer and senior vice president, Advisory Services, NAVEX Global. “That said, the problem of harassing conduct is larger than these numbers reflect as many employees still fear reporting. Failed cultures, ineffective internal processes, fear of retaliation and lack of leadership support will continue to result in numbers that do not reflect the true pervasiveness of workplace harassment.”

In addition to claims of sexual harassment, employees are also reluctant to raise reports of retaliation when they lack trust in internal processes. “Reports of retaliation remain extremely low in comparison to the trends we are seeing in external reporting to government agencies,” said Penman. “The gap between internal and external retaliation reporting should be concerning to all boards, executives and compliance professionals. It is time to focus the attention and resources needed to identify, address and prevent retaliatory behaviour.”

The report also found a substantial 18 percent increase in discrimination reports in 2018. However, the substantiation rate of these cases remains significantly lower than the overall case substantiation rate of 29 percent. This is likely because discrimination claims, like retaliation claims, are often based on perceived behaviour rather than on a clear statement or evidence, making these types of cases more difficult to prove.

The 2019 hotline report is the first in which NAVEX Global received and analysed over 1 million employee reports in a single year. One of the key findings is that availability and tracking of all report intake methods matters. Organizations that offer and track the full range of intake methods (hotline, web, open door, etc.) show a much higher reporting rate than do organizations that track only phone and web: 2.1 per 100 employees versus 1.1 per 100. Organizations in the latter category are missing a significant percentage of concerns and risks that employees could be raising.

Finally, this year’s hotline benchmark report included several other results that organizations should consider as they look to improve their own programs.

•Follow-ups to anonymous reporting dropped to a disappointing level, from a median 32 percent in 2017 to 20 percent in 2018. This is particularly striking given that overall report substantiation for anonymous reporters remained high at 38 percent, only slightly lower than the overall rate of 42 percent. “More than half of reports received on hotlines are made by anonymous reporters, so employee failure to follow up on those reports can impact the ability to successfully resolve an issue,” said Penman.

•There was some improvement in case closure time with a median rate of 40 days in 2018, compared with 44 in 2017 and the all-time high of 46 days in 2015. But the 2018 median was still far higher than a best-practice average of 30 to 32 days. Given that employees can become cynical if reports aren’t handled promptly, these findings show that many organizations should review their case-handling and investigation procedures, while also consulting with senior leadership about gaps in available resources.

•Reports made to hotlines that were inquiries, not allegations, decreased to an all-time low of 15 percent. Accepting questions before action is taken is the best way to avoid a problem later. Organizations should encourage employees to use the hotline as a helpline that can offer advice and assistance – and not just a place to file reports.

NAVEX Global will present a webinar covering the survey results. The full 2019 Hotline Benchmark report will be available for download during the webinar.

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.”

Hunton Andrews Kurth LLP has promoted 11 lawyers.

Capital Finance & Real Estate
Matthew R. Halal, New York
Robert A. Rich, New York
Conor M. Shary, Houston

Corporate
James V. Davidson, Richmond
David Dumont, Brussels
Alex R. Velinsky, Charlotte
Beth A. Whitaker, Dallas

Energy & Infrastructure
Geoffrey C. Lorenz, Washington

Litigation
Timothy J. Fazio, Boston
Abigail M. Lyle, Dallas

Tax & ERISA
Jessica N. Agostinho, Washington

Jessica N. Agostinho (Washington) focuses her practice on the complex and evolving area of employee benefits law, including health care reform, tax-qualified retirement plans and executive compensation. She also is highly skilled in handling employee benefits issues arising in corporate transactions. She received her undergraduate degree from Georgetown University Walsh School of Foreign Service and her law degree from Columbia Law School.

James V. Davidson (Richmond) focuses his practice on all aspects of capital markets, mergers and acquisitions, corporate finance, and real estate transactions, with a particular emphasis on REITs. An undergraduate of Miami University, Davidson received his law degree from New York University School of Law.

David Dumont (Brussels) advises large, multinational clients on various aspects of European Union privacy and data protection law and has worked extensively in preparing clients for all aspects of the new EU General Data Protection Regulation. Dumont received his undergraduate and law degrees from the University of Brussels.

Timothy J. Fazio (Boston) is a trial lawyer who maintains a diverse national practice, concentrating in complex commercial litigation as well as corporate and government investigations. Fazio received his undergraduate degree from Hamilton College and his master’s degree from Hofstra University Frank G. Zarb School of Business. He earned his law degree from Hofstra University School of Law.

Matthew R. Halal (New York) practice focuses on advising lenders and investors in all aspects of secured financings, with an emphasis on representing institutional lenders in the origination of commercial mortgage and mezzanine loans. Halal is a graduate of Binghamton University, State University of New York, and received his law degree from New York Law School.

Geoffrey C. Lorenz (Washington) primarily focuses his practice on the acquisition, financing and development of electric-generating facilities employing both conventional and renewable technologies. He received his undergraduate degree from Duke University and earned his law degree from George Washington University Law School.

Abigail M. Lyle (Dallas) focuses her practice on regulatory compliance and defending financial institutions in enforcement actions and litigation related to consumer protection laws. Lyle received her undergraduate degree from Furman University and her law degree from University of Miami School of Law.

Robert A. Rich (New York) primarily represents corporate debtors, secured and unsecured creditors, indenture and securitization trustees, lessors, and other parties in interest in Chapter 11 bankruptcies. Rich received his undergraduate degree from Boston College and his master’s degree from Fordham University Graduate School of Business. He earned his law degree from Fordham University School of Law.

Conor M. Shary (Houston) represents buyers, sellers and developers of commercial real estate, landlords and tenants in office and retail leasing transactions, lenders and borrowers in secured lending transactions and financial institutions in project financings and commercial loans. He received his undergraduate and master’s degrees from the University of Texas at Austin and his law degree from Harvard Law School.

Alex R. Velinsky (Charlotte) has represented borrowers and lenders on a wide variety of structured finance transactions. His particular focus is on financings involving residential and commercial mortgage loans and related assets. Velinsky received his undergraduate degree from Princeton University and his law degree from Columbia Law School.

Beth A. Whitaker (Dallas) focuses on corporate transactions and securities and regulatory representation of commercial banks, holding company, thrifts and other financial institutions, including mergers and acquisitions, joint ventures, debt and equity offerings, and corporate finance transactions. Whitaker received her undergraduate degree from Elon University and her law degree from Charleston School of Law.

Steven Einhorn has joined Brown Rudnick LLP’s New York office as a partner in its Tax Practice Group. He was previously at Proskauer Rose LLP in its Employee Benefits and Executive Compensation Practice.

In a release, the firm said Einhorn represents both employers and senior executives in the negotiations and drafting of employment agreements, equity compensation arrangements, severance agreements, nonqualified deferred compensation agreements and other compensation arrangements. In addition, Einhorn counsels clients on the design, implementation and ongoing concerns of employee benefit plans.

Einhorn reunites with Partner Rachel Wolkinson, who joined the firm in February, also from Proskauer. Einhorn will be the fifth partner in the firm’s Tax Practice Group.

Einhorn received his LL.M. from New York University of Law and his J.D. cum laude from Baylor University School of Law.

Mitchell M. Brand and Harris J. Diamond have joined Blank Rome LLP as partners in the Finance, Restructuring, and Bankruptcy group in the firm’s New York office. They focus their practices on asset-based lending; leveraged cash flow lending; second lien, mezzanine, and unitranche financings; as well restructuring, workout, and bankruptcy matters. They join from Stradley Ronon Stevens & Young, LLP and previously were with Otterbourg P.C. where Brand practiced for 33 years.

“We are thrilled to continue our Firm’s 2019 strategic growth with the addition of Mitch and Harris,” said Grant S. Palmer, Blank Rome’s managing partner and CEO. “They bring a diverse financial and restructuring background that further bolsters our leading financial services practice. Currently with more than 150 attorneys, our New York office has experienced sustained growth over the past several years. With the relocation of our office to 1271 Avenue of the Americas scheduled for later this month, we are well positioned to continue to welcome accomplished attorneys like Mitch and Harris in the market, with an eye toward continued expansion.”

Brand earned his B.S., summa cum laude, from Union College, and his J.D. from Emory University School of Law where he was the editor-in-chief of the Annual Survey of Bankruptcy Law. Diamond received his B.A., cum laude, from the University at Albany and his J.D. from St. John’s University School of Law.

Adam I. Cohen has joined Redgrave LLP as a partner in New York.

In a release, the firm said Cohen is certified as an Information Systems Security Professional (CISSP), a Cloud Security Professional (CCSP), and an Ethical Hacker (CEH). He works with cybersecurity, digital forensics and eDiscovery, data privacy, information governance, and records management.

“We are thrilled to have Adam on our team at Redgrave,” said Victoria Redgrave, chair, Executive Committee. “Our clients can expect valuable guidance from Adam, who will be advising companies on information security program compliance and investigating cybersecurity compromises that threaten privacy or intellectual property value.”

Jonathan Redgrave, managing partner, added, “Adam is a recognized leader whose exceptional background combines his work as a cybersecurity advisor, where he consulted on critical technology issues, along with many years spent as a top litigator. A great addition to our firm, Adam will cover the full spectrum of disciplines that intertwine governance, compliance, security, and privacy.”

Cohen said, “I am excited about joining Redgrave and contributing to the successes of the firm’s clients in meeting challenges where law and technology intersect and where Redgrave has always focused. My hybrid background in technology and law is perfectly suited to this focus and these challenges.”

Cohen received his J.D. from Duke University School of Law and his Bachelor of Arts from Wesleyan University.

Sara George will join Sidley Austin LLP in London as a partner in its Securities and Derivatives Enforcement and Regulatory practice. George was previously a partner at Stephenson Harwood LLP and prior to that, served as a prosecutor for the Financial Services Authority (FSA).

In a release, the firm said George has experience in international regulatory and criminal investigations, particularly in the financial services sector. She advises clients on a variety of matters, including accusations of involvement in regulatory contraventions, market abuse, insider trading, money laundering, fraud, corruption and bribery. The firm said she is recognized for having brought landmark cases, including the first criminal prosecution by the FSA against a director for misleading the market, and the first Listing Rule contravention.

As a criminal barrister, George advocated before the Financial Services Tribunal, the Regulatory Decisions Committee of the Financial Conduct Authority, and the Crown Court and the Court of Appeal. She also has led numerous criminal and regulatory investigations involving the Securities and Exchange Commission, the Commodity Futures Trading Commission and the Department of Justice.

“Sara is well-known and respected for her vast experience and involvement in high-profile criminal and regulatory investigations,” said Tom Thesing, managing partner of Sidley’s London office and a member of the firm’s Executive Committee. “She symbolizes the premier talent we’ve come to attract in the pursuit of our strategic plan. Sara’s arrival will strengthen our leading global Regulatory and Enforcement client offerings as part of our expanding Disputes team here in London.”

Bradley Arant Boult Cummings LLP announced that the partners W. Wayne Drinkwater and Anne Marie Seibel have been named 2019 BTI Client Service All-Stars in the litigation practice area.

Bradley is one of only 72 firms with two or more All-Stars for 2019, “suggesting these law firms are more focused on cultivating a culture of client service excellence than other firms,” according to BTI.

“We congratulate Wayne and Anne Marie on their achievement in client service as members of the BTI Client Service All-Stars class of 2019,” said Bradley chairman of the board and managing partner Jonathan M. Skeeters.

Both members of Bradley’s Litigation Practice Group, Drinkwater and Seibel are among 335 attorneys from 152 law firms listed as 2019 All-Stars. This marks the 18th consecutive year that BTI Consulting Group has published its All-Stars list based on independent research with C-level executives to identify attorneys whom corporate counsel say “represent the epitome of client service” and “have an unquenchable thirst to understand their clients better than all other attorneys.” Attributes of the client service All-Stars are superior client focus, unmatched client experience, understanding of the client’s business like no other, unparalleled legal skills, and innovative thought leadership. During interviews, corporate counsel recommended top attorneys by name and in an unprompted manner. Attorneys and firms cannot self-nominate, self-refer, nor pay to be included in the report.

Based in Bradley’s Jackson, Miss., office, Drinkwater has experience in major business, commercial and constitutional litigation and has tried some of Mississippi’s most significant cases, the firm said in a release. He also has handled more than 70 appeals, arguing more than 30 of them in state and federal courts across the United States. A former law clerk of former U.S. Supreme Court Chief Justice Warren Burger, Drinkwater is a Fellow of the American College of Trial Lawyers and of the American Academy of Appellate Lawyers. He also is an Advocate of the American Board of Trial Advocates. Drinkwater is included in The Best Lawyers in America® in four litigation fields and is recognized as a Star Individual for Commercial Litigation by Chambers USA: America’s Leading Lawyers for Business.

Based in Bradley’s Birmingham office, Seibel is involved with multi-forum and multi-plaintiff high-stakes litigation. Her experience includes trials in state and federal courts, AAA arbitrations, and the Tribal Court of the Poarch Band of Creek Indians. Seibel recently served as lead trial counsel in New Hampshire, securing a trial judgment that was upheld this year after Seibel argued the appeal. Seibel currently serves as a co-chair of the Membership and Marketing Committee of the American Bar Association (ABA) Section of Litigation. Her prior leadership roles with the Section of Litigation have included co-chair of the Regional Meeting Committee, liaison to the ABA Commission on Women in the Profession, and co-chair of the Woman Advocate Committee. In addition, Seibel is a founder of Bradley’s Women’s Initiative and is co-chair of the firm’s Inclusion and Diversity Committee.

Freeborn & Peters LLP announced that Matthew J. O’Hara and Jeffrey A. Rossman, partners in the firm’s Litigation Practice Group, have been named 2019 BTI Client Service All-Stars in the area of litigation. Freeborn is among only 72 firms with two or more BTI All-Stars this year.

“The firm is extremely proud of Matt’s and Jeff’s achievement in being recognized for this prestigious honor. It is an affirmation of their commitment to delivering outstanding client service,” said Freeborn co-managing partner Joseph L. Fogel. “Matt and Jeff embody Freeborn’s commitment to the highest standards of client service.”

For 18 years, BTI Consulting Group has published its All-Stars list based on independent research with corporate counsel who recommended top attorneys by name and in an unprompted manner. According to BTI, the All-Stars “represent the epitome of client service” and “have an unquenchable thirst to understand their clients better than all other attorneys.” Attorneys and firms cannot self-nominate, self-refer, nor pay to be included in the report. The 2019 All-Stars include 336 attorneys from 152 law firms across the United States.

As co-leader of Freeborn’s Complex Litigation Group, O’Hara concentrates his litigation practice in complex commercial matters in federal and state courts, the firm said in a release. He has tried cases involving antitrust, the federal securities laws, breach of fiduciary duty, trade secrets, trademark infringement, breach of contract, contract reformation, unjust enrichment, license agreements, executive employment, the Uniform Commercial Code, fraud, and criminal defense. He also litigates cases involving private shareholder and partnership disputes, legal malpractice, fraudulent transfers, defamation, and other commercial matters. He has represented clients in investigative proceedings before the Securities and Exchange Commission, Federal Trade Commission, and Illinois Attorney Registration and Disciplinary Commission. He also is experienced in briefing and arguing state and federal appeals.

The firm said Rossman has trial and appellate experience and has tried and argued cases in federal and state courts across the country. In addition, he counsels clients on litigation, tax and regulatory matters, including acting as national counsel for several large eCommerce companies in which he advises and helps direct and implement national strategy. Rossman also has litigation experience involving state and local tax matters, as well as experience in financial services litigation, including securities class and derivative actions, which include cases alleging accounting irregularities, illegal trading and breaches of fiduciary duty.

Pacific Gas and Electric Co. paid at least $84 million to four outside law firms in the year leading up to its January bankruptcy filing, court papers show, demonstrating how the embattled utility’s legal bills piled up as its challenges also mounted, reports the San Francisco Chronicle.

“The vast majority of the total legal payments — $75.7 million — went to Cravath, Swaine & Moore, a New York firm that is PG&E’s lead coordinating counsel in wildfire-related matters,” writes the Chronicle‘s J.D. Morris.

The company paid Weil, Gotshal & Manges $4.7 million in the 90 days leading up to the company’s bankruptcy filing. The other firms receiving revenue from the case are Jenner & Block and Keller & Benvenutti.

“Given the importance of these issues to the board, they wanted to hire the best. And the best are very expensive,” said Jared Ellias, a UC Hastings associate law professor. “… But man, that is a lot of money.”

Read the Chronicle article.

Bloomberg Law is reporting that the attorneys who won a major court ruling this month invalidating some caps on pay for NCAA college athletes are seeking nearly $45 million for their work on the case.

The attorneys are from the law firms Winston & Strawn, Hagens Berman Sobol Shapiro LLP, Pritzker Levine LLP, and Pearson, Simon & Warshaw, according to Bloomberg’s Mike Leonard.

The request is based on fees of almost $30 million for hours spent on the complex antitrust class action, multiplied by 1.5 to reflect the case’s degree of difficulty and risk, according to the fee motion filed March 26 in the U.S. District Court for the Northern District of California.

Read the Bloomberg Law article.

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.

Recent court decisions are making it easier for private litigants who believe they have been underpaid royalties under an oil-and-gas lease to ratchet up the pressure on operators by styling their complaints as putative class actions, writes Thomas G. Ciarlone Jr. for Kane Russell Coleman Logan’s Energy Law Today.

“This has the obvious potential to transform nuisance-value lawsuits into headline-making disputes that can involve thousands of lessors seeking a bigger piece of the pie from the working interest,” he explains.

“There could be trouble ahead for operators if the future of royalty disputes lies increasingly within the province of states’ attorneys (with broad powers and vast resources) operating under the auspices of consumer protection laws,” Ciarlone concludes.

Read the article.

There are circumstances that allow a departing employee to challenge the legitimacy of a non-compete agreement, even if this type of contract meets all the legal requirements, writes Romy Jurado of Jurado & Farshchian.

In her article, she discusses two questions that arise when an employee challenges a non-compete: Should an employee actually challenge the agreement? And: How exactly does an employee challenge it?

She also discusses the three basic approaches an employee might take to challenge the agreement: Ignoring it; negotiating with the employer; and filing a declaratory judgment action.

Read the article.

High Performance Counsel will kick off its #ThinkTank series with the first quarterly briefing on the state of the legal industry  on April 12, 2019.

Faculty members recruited by the company will share their thoughts on just three questions – each designed to elicit actionable intelligence to equip the modern legal professional navigating the marketplace.

“We’ve created #ThinkTank to be a critical sounding board for those looking ahead – and looking to get ahead – in the modern legal industry,” the company says on its website. “Our annual #ThinkTank membership program provides exclusive access to #hipcounsel events, including our State of the Legal Industry Quarterly Briefings and Members Only published insights.”

Register for #ThinkTank.

Kim Stanger, writing for Holland & Hart, offers a brief summary of some terms or issues that should be considered in provider agreements.

The article discusses such topics as regulatory compliance, written agreements, parties, the nature of relationships, services, schedules, location, independence, intellectual property, use of information, outside activities, qualifications, representations and warranties, performance standards, medical records, employer obligations, compensation, bonuses, benefits, exempt status, referrals, assignment of fees, liability insurance, and more.

Read the article.

Nothing is more fundamental to private equity deal practice than limiting the exposure of private equity sellers for post-closing claims, writes Glenn D. West for Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

He believes that exposure to the discussion of fraud allegations, “whether though extra-contractual fraud claims (because of ineffective anti-reliance clauses or undefined fraud carve-outs), or claims based on less than deliberate and knowing misrepresentations (by the private equity seller itself) regarding the express, bargained-for representations set forth in the acquisition agreement (as a result of undefined fraud carve-outs), requires the most vigilance to avoid.”

Read the article.

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Wells Fargo general counsel C. Allen Parker will take over as interim president and chief executive of the company after the abrupt departure of chief executive Tim Sloan on Thursday.

Sloan had spent more than two years trying without success to convince lawmakers and regulators that the embattled bank is no longer a threat to its customers, according to Renae Merle of The Washington Post.

“Sloan spent more than two years on an countrywide apology tour after Wells Fargo acknowledged a pattern of consumer abuses — from opening millions of fraudulent accounts on behalf of its customers without their consent to mistakenly foreclosing on hundreds of clients and repossessing the cars of thousands of others. Sloan’s pleas often failed to win over frustrated lawmakers,” Merle writes.

Read the Post article.

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.

A former lawyer with Hunton & Williams has been awarded $6.3 million for a brain injury caused when she hit her head on a low-hanging pipe in the Atlanta parking garage used by people at the law firm, reports the ABA Journal.

Aja Diamond McCoy was a lawyer at the firm now known as Hunton Andrews Kurth when she suffered the injury.

Jurors awarded her $8 million, but McCoy was deemed to be partially at fault, reducing the award to $6.3 million. She suffers from “unpredictable and severe” pain from the 2013 injury.

Read the ABA Journal article.