PilieroMazza PLLC has posted an on-demand video discussing how businesses can proactively get out in front of pre-bid issues and avoid missteps.

“We often see what can go wrong in the bidding and procurement process long after a client submits a proposal or is awarded a contract,” the firm says on its website. “From awards challenged because companies did not confirm their set-aside status, to incorrect assumptions made about the cost of labor, mistakes made before you bid can be costly, and even devastating.”

Topic 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 video.

Charles Sartain offers a reminder that a court will (if it’s doing its job) enforce an agreement according to what it actually says, not by that which one party or the other would have liked it to say or imagines that it said.

Writing in Gray Reed’s Energy & the Law blog, Sartain discusses Claybar v. Samson Exploration. That case involved an agreement over an indemnity clause in a contract for the drilling of petroleum wells and related operation on property owned by Claybar.

Sartain presents the facts of the case, including a break-down of both side’s positions.

“Generally, indemnity agreements do not apply to claims between the parties but apply to claims made by others who are not parties to the agreement,” Sartain writes. “However, the parties can write an agreement to indemnify one another against claims they later assert against each other. To do so, the parties must expressly and specifically state that intention.”

Read the article.

Image by Mitch Barrie

Remington Outdoor Co.’s decision to seek court protection brings up the question of whether people with pre-existing legal claims against the company will be made whole.

Bloomberg reports that lawsuits over firearms defects and the use of its weapons in the Sandy Hook attack were pending when the company filed for bankruptcy, and the company has moved to suspend those cases.

As reporters Eliza Ronalds-Hannon and Polly Mosendz write: “As much as $500 million could hang in the balance. Remington, which is owned by Cerberus Capital Management, is embroiled in litigation over trigger defects on guns such as its iconic Model 700 rifle, as well as another lawsuit by survivors of the children and teachers killed in the 2012 elementary school shooting in Newtown, Connecticut. Bushmaster, owned by Remington, manufactured the firearm used in that massacre, which left 26 dead. ”

Read the Bloomberg article.

As the White House and Congress descend deeper into turmoil, the U.S. Supreme Court is showing signs of becoming as politically fractured as the rest of Washington, with a shift to the right a real possibility, reports CNN.

CNN legal analyst Joan Biskupic explains: “Indications from the few decisions issued so far and from oral arguments in yet-to-be decided cases suggest the five conservatives on the nine-member bench may be ready to wield their majority power. Led by Chief Justice John Roberts and joined by President Donald Trump appointee Justice Neil Gorsuch, the five have already prevailed in recent ideologically charged cases regarding prisoners’ civil rights and immigrants in custody.”

Biskupic writes that a looming question since Trump took office has been whether the justices would become a check on Trump, who has flouted legal norms, criticized federal judges, and revealed disdain for the rule of law.

Read the CNN article.

Above the Law is reporting that Reed Smith partner Andrei Baev is out a year after joining the firm from Chadbourne & Parke. Baev has come under scrutiny recently for his connections to Republican donor Elliott Broidy.

Bloomberg has reported that Baev contacted Broidy, a Los Angeles-based financier currently serving as deputy finance chair for the Republican National Committee, about working together on a campaign to influence members of the Trump administration in order to alleviate U.S. sanctions against certain Russian companies.

Editor Kathryn Rubino writes that “Norton Rose Fulbright (which last year merged with Chadbourne) has denied that work was done to actually remove Russian companies from the U.S. sanctions list.”

Read the Above the Law article.

A Savannah Law School student has sued school officials for fraud and breach of trust duties stemming from their decision to prematurely close the school in May, which she said will deprive her of the chance to become a lawyer, reports the Savannah Morning News.

The plaintiff, Jordan Crewe, alleged the school’s pending closure results “at least in part from the defendants’ mismanagement of funding for the law school.” In the suit, she also contended the defendants “established Savannah Law School to obtain federal student loan money while aiming long-term to make a profit by flipping the property.”

Reporter Jan Skutch writes that the defendants in the suit are Savannah Law School, John Marshall Law School and John Marshall University, Savannah Law School Associate Dean Keith Harrison and Michael Markovitz, law school board member and treasurer.

Crewe has completed three of the four years needed to obtain a law degree from the school.

Read the Morning News article.

Former energy and chemical company lawyer Daniel J. Grucza has joined Hunton & Williams LLP as counsel in Atlanta.

“With his unique background and experience in safety, and particularly process safety, Dan is a great addition to the environmental practice,” said Eric Murdock, head of the firm’s administrative law team. “With increased focus at the federal and state level on process safety and chemical safety across industries, Dan will be a terrific resource for many of our clients.”

In a release, the firm said Grucza has 30 years of experience in the complex chemical manufacturing, foundry, mining and coking industries. He previously was senior counsel and vice president of a major energy company, and has provided legal support for mines, gas operations, foundries, manufacturing facilities and distribution centers in the United States, Canada, Europe and China.

The release continues:

While seconded to a leading oil company, Grucza was responsible for implementing new regulations and managing incident response. He has also served as a corporate compliance officer, responsible for developing compliance programs, conducting training, conducting due diligence and responding to hotline complaints.

Possessing a strong chemical technical background, Grucza also previously served as an environmental, health and safety manager for one of the world’s largest chemical companies, where he had responsibility for EHS compliance, process safety management, risk management, security, wastewater treatment operations, and related matters. He has advised clients in the OSHA Process Safety Management (PSM) and EPA’s Section 112(r) Risk Management Program (RMP) applicability determination, program development, implementation and compliance. He also has defended clients in OSHA enforcement actions throughout the inspection, closing conference, citation and abatement actions.

DLA Piper announced that Jeff Tsai has joined the firm’s Litigation, White Collar and Investigations practices as a partner in California, based out of the San Francisco and Los Angeles offices.

Tsai, who previously led Alston & Bird’s State Attorneys General team, represents companies in complex civil and criminal enforcement matters brought by state and federal agencies. He will help lead DLA Piper’s efforts nationally in assisting companies subject to investigative scrutiny by individual and multi-state attorneys general.

Tsai’s state attorneys general practice has included representations in multi-state investigations and lawsuits on a range of issues related to consumer protection, antitrust and health care. His representation has included many industries that are regularly the subject of state attorney general enforcement, such as Internet retail, daily fantasy sports, travel and online higher education.

Additionally, Tsai is active in defending white collar matters in investigations and trials, including representations involving trade secret theft and economic espionage, fraud and public corruption. In January, he served as first-chair counsel in one of the few federal criminal trade secret prosecutions to proceed to trial.

“As both a former federal prosecutor and former senior official in the office of the California attorney general, Jeff immediately will enhance our growing white collar and investigations platform globally,” said Loren Brown, co-chair of DLA Piper’s global and US Litigation practices. “Our clients continue to face a complex and changing regulatory environment at both the state and federal levels, and Jeff is uniquely suited to help them navigate these challenges.”

“As we continue to increase the breadth and depth of our white collar and corporate investigations capabilities in California, as well as our overall litigation platform, Jeff’s vast knowledge and experience will be an important strategic component of our offering,” said Sang Kim, managing partner of the firm’s Northern California offices.

“I’m thrilled with the opportunity to work with DLA’s dynamic team on the West Coast, and I look forward to helping the firm build out the White Collar and Investigations practices here and across the country,” Tsai said.

Tsai previously served as special assistant attorney general in the office of California Attorney General Kamala D. Harris, where he served as a senior advisor to former Attorney General Harris on criminal justice and consumer protection issues and litigation. He was also an assistant US attorney in Miami, a trial attorney for the Public Integrity Section of the Criminal Division of the US Department of Justice, and senior counsel to former Assistant US Attorney General Lanny Breuer. He started his career as a judicial law clerk for US District Judge Vanessa Gilmore in Houston. He received his J.D. from Georgetown University Law Center and his B.A. from the University of Texas at Austin.

Michael D. Hornback has joined Littler as special counsel in the firm’s Lexington, Kentucky, office. He was previously an attorney with Wyatt, Tarrant & Combs LLP.

“Michael brings nearly two decades of impressive litigation experience, including representation of employers with local, national and international operations,” said Kevin Griffith, Lexington Office Managing Shareholder. “He has a strong track record and reputation in Kentucky and Tennessee and will make a great addition to our Lexington office.”

In a release, the firm said Hornback’s practice focuses on representing clients in all aspects of litigation before federal and state courts. He defends companies in a wide-range of employment matters, including discrimination, harassment and retaliation claims, and issues involving breaches of non-compete agreements and other contracts. Hornback also regularly represents clients before the Equal Employment Opportunity Commission.

“I am excited to work with the talented team in the Lexington office and with my new colleagues across the firm’s global platform,” Hornback said. “As employers continue to confront new and existing risks in managing their workforces, I look forward to drawing on Littler’s depth and breadth of knowledge to serve my clients in Kentucky and Tennessee, as well as the many regions in which they operate.”

Hornback received his J.D. from the University of Arkansas School of Law and his B.A. from Eastern Kentucky University. He is a member of the Fayette County Bar Association’s board of directors and a member of the Rotary Club of Lexington.

CRE8 Independent Consultants presents a free on-demand workshop on law firm process improvement, offering 20 ideas in 20 minutes.

Today, to attract and maintain clients, law firms are being asked to lower fees through discounted rates, alternative fee arrangements, fixed fee through the life of the matter, and to follow client guidelines that restrict who can bill and what expenses can be charged, the company says on its website. Firms can respond by writing off charges (losing profitability) or by examining their internal processes to determine how to increase efficiency and to improve quality. How should AmLaw 100, and 200 law firm Executive Directors, Chiefs, and Partners respond to these challenges? Education is the first step.

This workshop in 20 minutes discusses:

• what are the internal, and external signs a law firm needs process improvement,
• over twenty different areas within a firm that can benefit from process improvement,
• how a firm can use procedural changes (non-technology) to reduce costs, mistakes, communication issues, and re-work; while improving quality and client service,
• why process improvement is important before installing a new computer system,
• process improvement methods for law firms,
• a five-step process improvement method to improve a law firm,
• how to engage professional and administrative staff to participate in, and support the successful roll-out of process changes, and
• how to create a culture within the firm to sustain on-going process improvement.

Sign up for the on-demand workshop.

The American Bar Association has published bar exam pass rates for all law schools in the United States, indicating those rates ranging from 98.58  percent to 26.53 percent.

Above the Law offers some comment on the ratings, along with a peek at the best and worst on the list. (The ABA has made available for downloading an Excel spreadsheet listing all the schools’ rates.)

The University of Chicago Law School tops the list with a first-time pass rate better than 98 percent. At the other end of the scale is the Arizona Summit Law School with a rate of 26.53 percent.

Read the Above the Law article.

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.

Improper cybersecurity oversight cost a power company a $2.7 million penalty in a settlement between the Western Electric Coordinating Council and the company, according to a post by Troutman Sanders.

The post says that the unnamed power company had inadvertently allowed critical cyber security data to be exposed online for 70 days.

“The contractor improperly accessed data from the company’s network and copied that data onto the contractor’s network,” the post explains. “While the information was on the contractor’s network it was accessible online to anyone without password protection. The information exposed records of over 30,000 assets, including records associated with Critical Cyber Assets (CCAs) such as IP addresses and server host names.”

Read the article.

The State Department will be improving transparency in its requirements for contractor cooperation with its Office of Inspector General, according to Federal News Radio.

“While the Foreign Affairs Manual authorizes the OIG to access a contractor’s documents and interview its employees during the scope of an investigation, that provision is not currently explicitly expressed in the contracts signed by vendors,” writes David Thornton. “The OIG and the department are moving to correct this issue, and hopefully head off any further confusion or misunderstandings.”

The change is intended to head off problems such as the one seen earlier this year when a contractor would not comply with requests for an IT audit of security controls.

Read the article.

In a client alert, Pepper Hamilton surveys the effects of incorporating an arbitration provider’s rules or common arbitration provisions on who determines questions of arbitrability.

“While questions of arbitrability are ordinarily decided by a court, contracting parties can agree to delegate questions of arbitrability to an arbitrator instead,” the alert explains. “Because an arbitrator deciding questions of arbitrability is contrary to the ordinary course of events, contracting parties must express their intent to delegate questions of arbitrability to an arbitrator ‘clearly and unmistakably.’ When doubt exists as to the parties’ intent to ‘arbitrate arbitrability,’ the FAA’s presumption in favor of arbitrability is reversed.”

The authors conclude: if you want a court to decide whether, and to what extent, your dispute is subject to arbitration, you must be mindful of the impact that incorporating an arbitration provider’s rules or a broad arbitration provision into your agreement can have on the question of who will decide arbitrability.

Read the article.

In a recent Initial Determination, an administrative law judge ruled that a patent owner did not have standing to sue without joining a third party to which certain rights had been transferred, reports Jones Day.

Daniel Kazhdan and Blaney Harper discuss Certain Audio Processing Hardware, Software, and Products Containing the Same.

Andrea Electronics Corp filed a complaint asserting that a number of companies, including Apple Inc., infringed its patents by importing certain products. It was undisputed that Andrea held formal title of the patents, but Apple argued that Andrea did not hold “all substantial rights in the patents-in-suit,” as required by Diamond Coating Technologies, LLC v. Hyundai Motor America.

Read the article.

Despite Facebook’s efforts to appear up-front in its handling of revelations of misuse of users’ data by Cambridge Analytica — using an approach that has worked in the past — this scandal really is different, and everyone in Silicon Valley knows it, according to Vanity Fair.

“Indeed, the repercussions are massive in both immediate and longitudinal ways,” writes Nick Bilton. “Just a couple of days into the Cambridge crisis, Facebook’s stock has dropped by more than 20 points, which has led its market capitalization to fall by tens of billions of dollars.”

The company and CEO Mark Zuckerberg have been called to testify before Congress and the British Parliament. The FTC and shareholders are pressing legal action, and the company’s plan to expand into China are now less likely.

Read the Vanity Fair article.

Image by Mike Mozart

The biggest U.S. antitrust case of this century kicked into high gear Thursday as a government lawyer warned that AT&T Inc. wants to buy media giant Time Warner Inc. to “weaponize” its must-have content — a move that would raise prices for consumers and hinder innovation, according to the Los Angeles Times.

In opening arguments, Justice Department lawyer Craig Conrath said AT&T could use Time Warner’s content as a weapon against competitors that rely on the programming.

Reporter Jim Puzzanghera writes: “AT&T’s added leverage over pay-TV competitors to withhold content from some of the most valuable assets in entertainment — including HBO, CNN, TBS, TNT and Warner Bros., Hollywood’s largest TV and film studio — would cause prices to rise by more than $400 million a year for Americans, Conrath said.”

Read the LA Times article.

National Labor Relations Board member William Emanuel violated a White House ethics pledge by participating in a closely watched case involving his former law firm, the NLRB’s inspector general concluded in a report obtained by Bloomberg Law.

Bloomberg reporters Chris Opfer and Hassan A. Kanu write that Emanuel told Inspector General David Berry that he didn’t realize former firm Littler Mendelson represented a business in the seminal Browning-Ferris Industries case, although he previously flagged the litigation for lawmakers as one that he might need to sit out, according to Berry’s report. Emanuel then joined the rest of the five-member board in directing its top attorney to ask an appeals court to drop the case.

They report that Berry said the inconsistency in Emanuel’s statements to Congress and the IG “is not sufficient to show that” Emanuel “intentionally lied.”

Read the Bloomberg article.

A post by Jason M. Knott in the Zuckerman Spaeder Suits By Suits blog warns that, when an employer changes its contract with an employee, the change should be communicated clearly—and preferably, in writing. Otherwise, the employer may be at risk of finding that the old terms still control.

He illustrates his point by discussing the case of Balding v. Sunbelt Steel Texas, Inc., in which a federal court of appeals ruled that an employer had to go to trial over a salesman’s claim for unpaid commissions.

In that case, the salesman’s original contract set out a salary and a percentage commission. Later the employer raised his salary and claimed that the salesman was told that the raise was in lieu of commissions, but the salesman denied hearing that statement.

Read the article.