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.

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.

The Trump administration has nominated Sharon Fast Gustafson to fill the vacant position of general counsel of the Equal Employment Opportunity Commission.

Above the Law reports that Gustafson spent four years at Jones Day before becoming a solo practitioner in 1995.

The GC’s position at the EEOC has been vacant since December of 2016.

“The top litigator position has broad discretion in deciding what Title VII cases to pursue, and, as such, will take the lead in determining the Trump administration’s stance on such hot button issues as sexual harassment and the gender pay gap,” writes Above the Law editor Kathryn Rubino.

Read the Above the Law article.

Image by Annette Bernhardt

Bloomberg is reporting that the National Labor Relations Board is ignoring its own guidelines and rushing to settle a major workplace action involving McDonald’s Corp., lawyers for employees involved in the litigation alleged.

Reporter Josh Eidelson writes that, if the workers win at trial, the case could have a profound effect on how major corporations are held liable for workplace wrongdoing.

A trial on the matter was set to resume this week.

“Faced with a potential landmark decision in favor of franchise employees, NLRB lawyers have secured a deal with McDonald’s Corp. and are now racing to settle employee claims by Monday, attorneys for the workers contend,” Eidelson writes. “In doing so, the lawyers claim NLRB officials are wrongfully circumventing them and going straight to the workers with take-it-or-leave-it offers.”

Read the Bloomberg article.

A post on the website of Haynes and Boone calls attention to the apparent failure to acknowledge how the economic realities of oil and gas leasing and operating in the Outer Continental Shelf (OCS) in increasingly deepwater environments at a time of low oil and gas prices impacts the Interior Department’s stated goal of achieving “American Energy Dominance.”

“Once a serious concern only to small and mid-sized operators, the existence of mounting decommissioning liabilities to new lessees and predecessors-in-interest has stunned the offshore industry where some companies are discovering that their decommissioning liabilities are greater than existing assets,” according to Robert (Bob) P. Thibault and Christopher J. Reagen.

“This new reality in the OCS has created barriers to entry for all but the super-majors as new, small, and mid-sized independents face impossible-to-satisfy demands for many operators and leases,” they write.

Read the article.

The Oregon Supreme Court on Thursday took the unusual step of suspending a sitting state court judge — Vance Day of Salem — for three years, reports The Oregonian.

The court found that the Marion County Circuit Court committed “willful misconduct” and made “willful misstatements” to investigators to cover up the truth, according to reporter Aimee Green.

The court also found that Day acted with prejudice against same-sex couples by deciding he wouldn’t marry them and he instructed his staff to employ a scheme to avoid “public detection” of his plan, the Supreme Court said.

Read The Oregonian article.

The U.S. Supreme Court has granted certiorari in New Prime Inc. v. Oliveira, which should provide guidance as to the circumstances in which the Federal Arbitration Act (FAA) applies to interstate transportation workers who are purported independent contractors, according to the Transportation Blog of Holland & Knight.

“The case will be important for in-house and private transactional attorneys who draft contracts with transportation sector independent contractors, as well as litigators handling employee misclassification cases,” the article’s authors write.

They explain: “Over the past several years, a spate of class action litigation has targeted the long-standing use of owner-operator truck drivers as independent contractors, with drivers claiming that they should be classified as employees. The contract between the motor carrier and the driver often contains an arbitration clause, but drivers typically file these cases in court, leading to a fight over the proper forum.”

Read the article.

Making sure a firm’s website is compliant with State Bar of Texas advertising rules is just one of the many responsibilities for Texas lawyers and law firms who are launching a new site or updating an existing site, writes Bruce Vincent in a blog post for Muse Commuinications.

“Just like television or print advertisements, websites are considered advertising by the State Bar of Texas,” he explains. “That means that your site’s content must be submitted for approval to the State Bar Advertising Review Committee, which has maintained responsibility for approving and monitoring legal advertising, including websites, for more than 20 years.”

He discusses some common ad rules violations, such as misrepresenting specialization and professional honors, making unfair comparison to other firms, improperly listing verdict amounts, and including photos of non-lawyers.

Read the article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Avoiding Prosecution Churn: When Ex Parte PTAB Appeals Make Dollars and Sense,” featuring Fitch Even partner Thomas F. Lebens and Anticipat founder Trent Ostler.

The event will be Wednesday, March 21, 2018 , at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT.

During the process of acquiring patent rights through the patent application process, applicants sometimes wish to seek review of rejections by an examiner. The formal mechanism for achieving this review is an ex parte appeal to the Patent Trial and Appeals Board (PTAB). Some patent practitioners avoid the ex parte review process, viewing it as lengthy and expensive. But, data and experiences recently compiled by an AIPLA subcommittee suggest that this conventional thinking may be incorrect. It turns out that pursuing an appeal can be a more attractive option than other patent prosecution procedures.

During this webinar, presenters will explore how the AIPLA findings may provide guidance on
• When to file ex parte PTAB appeals
• How often to file these appeals
• Which issues to choose to appeal

Additional topics will include
• USPTO incentives
• Working with the examiner
• Patent term adjustment
• Pre-appeal brief reviews
• Other relevant statistics

Register for the webinar.

Image by Mark Moz

The Washington Post is reporting that the Senate is slated to pass far-reaching legislation this week to roll back key components of financial regulations put in place after the global financial crisis.

If made into law, the legislation would weaken the Dodd-Frank Act and would free dozens of financial institutions from the strictest rules put in place by regulators after the crisis, explains reporter Renae Merle.

The bill would raise the “too big to fail” standard for troubled banks, soften capital requirement for banks, offer small banks relief from the “Volcker rule” that bars banks from making risky wagers with their own money, and offers some banks relief from some restrictions on mortgage lending. The proposed legislation, however, would not weaken the Consumer Financial Protection Bureau.

Read the Post article.

The first batch of employers are getting estimates from the IRS of penalties they owe for not providing health coverage to employees in 2015. Some of the estimates are in the millions, reports Bloomberg.

Kristen Ricaurte Knebel writes that the IRS won’t say how many “226-J” letters have gone out or who’s getting them.

“But some practitioners expect Industries like trucking, restaurant, and staffing to see a high proportion of them,” she explains. “That’s because there is a high turnover rate inherent in those industries, which makes it challenging to keep track of workers, Alden J. Bianchi, a member at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo PC in Boston, told Bloomberg Law.”

The Affordable Care Act in 2015 required employers with 100 or more full-time employees to offer minimum essential coverage to at least 70 percent of full-time workers. Failure to do so could result in a penalty of $2,080 for every full-time employee, with penalties sometimes reaching $10 million.

Read the Bloomberg article.

The Antitrust Update of Patterson Belknap Webb & Tyler discusses a Federal Trade Commission case in which it appears an amicus brief may have been dispositive to the outcome of an appeal.

In Federal Trade Commission v. Penn State Hershey Medical Center, a group of 36 economists affiliated with top universities across the country filed an amicus brief explaining that the lower court used a faulty economic theory when it ruled against the FTC. The appellate court cited the brief when it reversed the district court.

Authors Jake Walter-Warner and Jonathan H. Hatch examine the brief’s influence on the appellate court and show how the court laid out the issues with the district court’s analysis just as the amicus brief did.

Read the article.

Image by NPCA Online

Randall S. Rich of Pierce Atwood LLP, writing in the firm’s Energy Infrastructure Blog, considers the question: Can an interstate natural gas pipeline continue to operate if a court vacates its certificate authorizations?

He raises the question in light of a federal appellate court’s ruling that raises the possibility that it will vacate certificates of public convenience and necessity authorizing the construction and operation of the Florida Southeast Connection pipelines. Those pipelines are currently transporting natural gas to power plants in Florida.

He covers the facts of the case and then discusses a legal theory that may permit the pipelines to continue to transport natural gas if the certificate orders were vacated.

Read the article.

The unsealing of Harper Lee’s will this week in Alabama yielded few insights into the life of the beloved author of the American classic novel “To Kill a Mockingbird,” according to a post on the website of Androvett Legal Media & Marketing.

Among the most frustrating details to those who had hoped to learn more about the notoriously private author was that she directed the bulk of her assets to a trust she established a few years prior to her 2016 death, says Dallas estate planning attorney Sam Long of ​Shackelford, Bowen, McKinley & Norton, LLP.

“Privacy concerns are among several factors that have increased the use of trusts as a mechanism to transfer property at death,” says Long, who also serves as an adjunct professor of wills, trusts and estates at UNT-Dallas College of Law. “In most cases, the terms of such a trust, such as the Mockingbird Trust here, and the nature of the assets conveyed to the trust during a person’s lifetime are not public information.”

The National Labor Relations Board threw out its most important ruling of 2017 — a 3-2 victory for major U.S. corporations — following an internal agency report that found that a potential conflict-of-interest had tainted the vote, reports Bloomberg, via the Chicago Tribune.

Bloomberg reporter explains that the discarded ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign their paychecks, such as franchisors or clients of contractors.

“The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris,” Eidelson reports.

Read the Tribune article.

Reuters reports that Supreme Court justices on Tuesday wrestled with Microsoft Corp’s dispute with the U.S. Justice Department over whether prosecutors can force technology companies to hand over data stored overseas, with some signaling support for the government and others urging Congress to pass a law to resolve the issue.

“The case began when Microsoft balked at handing over a criminal suspect’s emails stored in Microsoft computer servers in Dublin in a drug trafficking case. Microsoft challenged whether a domestic warrant covered data stored abroad” according to reporters Lawrence Hurley and Dustin Volz.

Two of the justices, Ruth Bader Ginsburg and Sonia Sotomayor, questioned whether the court needed to act now,  considering the fact that Congress is considering bipartisan legislation that would resolve the legal issue.

Read the Reuters article.

Next week the Supreme Court will hear oral argument on whether to reverse a 41-year-old ruling that allows states to require government employees to pay union dues even though they don’t want to be union members.

“It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice,” writes Amy Howe in SCOTUSblog. “The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in [petitioner Mark] Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.”

The case, appealed by Janus, an employee of the state of Illinois, comes after the U.S. Court of Appeals for the 7th Circuit rejected his argument that the agency fee violated his rights under the First Amendment.

Read the SCOTUSblog article.

An assistant attorney general in the Department of Justice has warned that the DOJ would soon launch criminal enforcement actions against companies that have so-called “no poaching agreements” with each other, whereby they agree not to solicit one another’s employees, reports Bloomberg.

Makan Delrahim, assistant AG in the Antitrust Division, says his division has “been very active” in reviewing potential violations of the antitrust laws caused by these agreements and added that “in the coming couple of months,” the public “will see some announcements” of DOJ actions.

Writing for Bloomberg, three Seyfarth Shaw lawyers warn, “The bright line has now been drawn: Any violative anti-poaching policies after October 2016 expose employers to criminal punishment. In fact, for the DOJ Antirust Division, such enforcement actions might prove to be like shooting fish in a barrel.”

Read the Bloomberg article.

U.S. Bank, the fifth-largest commercial bank by assets in the United States, was charged by the the Justice Department on Thursday with failing to guard against illegal activity and, in at least one instance, even abetting it, reports The New York Times.

The bank is charged with severely neglecting anti-money laundering rules, helping a payday lender operate an illegal business and lying to a regulator about its plans for tracking potential criminal activity by bank customers, writes reporter Emily Flitter.

The bank settled the Justice Department charges and cases brought by other regulators by agreeing to pay various fines and penalties totaling $613 million.

Read the NY Times article.