The 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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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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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.

The 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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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.

The 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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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 TheStreet.com.

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 TheStreet.com report.

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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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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.

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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The Healthcare Compliance Institute is scheduled for Oct. 29-Nov. 1 in Washington, DC.

The event will give participants the opportunity to go beyond legal analysis, learn how to implement systems that ensure the law is followed, and gain practical advice from experts in a one-of-a-kind forum where lawyers and compliance officers work together, according to the Health Care Compliance Association.

Some of the topics to be covered include:

• Are We Ineffective at Assessing Compliance Program Effectiveness or Are Industry and Government Using Different Standards?
• Handling a Criminal Healthcare Fraud Case
• Tips and Tools for Mitigating CMS Enforcement Actions
• Using Data and Statistics to Defend Against Health Care Enforcement
• Your Company Has Been Served with a Civil Investigative Demand: Now What?
• Managed Care Fraud Enforcement & Compliance

Register or get more information.

Before Equifax discovered a massive computer breach that exposed sensitive information about millions of Americans, the company lobbied Congress on legislation to limit how much it could be forced to pay if sued by consumers, reports The Washington Post.

The company also pressed lawmakers to roll back the powers of its regulators, according to reporters Renae Merle and Hamza Shaban.

“Since at least 2015, the credit reporting agency has repeatedly lobbied lawmakers on issues related to ‘data security and breach notification,’ according to federal disclosure forms,” the Post reports.

Read the Post‘s article.

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President Donald Trump’s travel ban offers the Supreme Court the chance to make a major pronouncement on the president’s power over immigration. But the case also could vanish into the legal ether, and that may be what a majority of the court is hoping for, points out Associated Press reporter Mark Sherman.

“Getting rid of the case would allow the justices to avoid second-guessing the president on a matter of national security or endorsing an especially controversial part of Trump’s agenda,” Sherman writes.

The timing of the ban could help the justices avoid a showdown because the 90-day travel ban on visitors from six mostly Muslim countries will expire before the court will hear the challenge.

Read the AP article.

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The Trump administration is quietly moving to allow energy exploration in the Arctic National Wildlife Refuge for the first time in more than 30 years, according to documents obtained by The Washington Post, with a draft rule that would lay the groundwork for drilling.

“Congress has sole authority to determine whether oil and gas drilling can take place within the refuge’s 19.6 million acres,” reports Juliet Eilperin for The Post. “But seismic studies represent a necessary first step, and Interior Department officials are modifying a 1980s regulation to permit them.”

Environmentalists and some of Alaska’s native tribes have fought against exploration in the ANWR for years, but state politicians and many Republicans in Washington have pressed to extract the billions of barrels of oil lying beneath the refuge’s coastal plain, Eilperin writes.

Read the Post article.

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The Winn-Dixie grocery chain is the latest and perhaps highest-profile business to face penalties for websites that are not compliant with the Americans with Disabilities Act (ADA), but it’s not likely to be the last, according to a post on the website of Androvett Legal Media & Marketing.

A federal judge in Florida found that the grocery chain’s website was inaccessible to visually impaired individuals and thus violated the ADA because features such as the website’s online coupons and pharmacy could not be accessed using a screen reader. The court ruled in favor of the plaintiff on all issues and awarded injunctive relief and attorneys’ fees.

The Americans with Disabilities Act prohibits discrimination on the basis of disability in public places, like stores and movie theaters. Increasingly, a battle has been brewing over whether or not websites for such “places of accommodation” must also be accessible.

“In Winn-Dixie’s case, the court agreed that because its website was closely integrated with its stores, the web content must be accessible to the hearing and visually impaired,” said employment attorney Audrey Mross of Dallas-based Munck Wilson Mandala. “If consumer-facing businesses were not aware of ADA website compliance, this case should be an eye-opener.

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A North Texas gas station chain is among the Texas businesses named in price-gouging lawsuits filed in the wake of Hurricane Harvey, attorney general Ken Paxton’s office announced Tuesday.

One gas station was reported to have charged $6.99 for a gallon of regular gas, and another reportedly charged almost $10. A motel franchisee also attracted the AG’s attention.

“Robstown Enterprises, Inc., which operated the Best Western Plus Tropic Inn in Robstown, charged three times its normal room rate during the weekend Hurricane Harvey hit, authorities said. The news release said Best Western has since ended its relationship with the company,” according to KXAS -TV reporters Brian Roth and Wayne Carter.

Texas law prohibits businesses from charging exorbitant prices for drinking water, food, clothing and fuel during a declared disaster.

Read the KXAS article.

The battle over the Clean Power Plan has intensified as Democratic state officials are publicly locking horns with Scott Pruitt, the head of the U.S. Environmental Protection Agency, over the legal advice that he has given to states that oppose the Obama-era carbon-cutting plan, reports Forbes.

Ken Silverstein explains that in March Pruitt wrote a letter in which he advised the states that they do not have to meet the deadlines set by the Clean Power Plan that aims to cut CO2 emissions by 32% by 2030, from a 2005 baseline. But 14 state attorneys general disagree, saying the regulation remains in effect unless the courts would rule otherwise.

“The country is well on its to way to achieving the desired outcome of the regulation: carbon emissions in this country have dropped from 6.13 billion metric tons in 2007 to 5.35 billion metric tons last year because natural gas is replacing coal-fired generation,” writes Silverstein.

Read the article.

“Hurricane Harvey didn’t cherry pick its victims, and FEMA shouldn’t cherry pick who it helps,” Washington, D.C. attorney Diana Verm told the Houston Chronicle this week.

In a post on the website of Androvett Legal Media & Marketing, Verm, who specializes in religious liberty cases, is representing three small Texas churches who recently sued the Federal Emergency Management Agency, alleging the government’s disaster relief policy violates the Constitution by denying faith groups the right to apply for funds.

Texas nonprofits that sustained damage by the Category 4 hurricane have 30 days to apply for emergency cleanup grants. The Houston-area churches maintain they should be eligible since they have and continue to support victims of the devastating storm.

David Coale, a Dallas appellate attorney who specializes in constitutional cases, says the complaint by the Rockport First Assembly of God in Aransas County, Harvest Family Church in Harris County and Hi-Way Tabernacle in Liberty County goes a step farther than previous similar cases by moving beyond exterior structures and building repairs into providing personal services.

“On its face it’s a reasonable request — it’s a disaster and they need all the help they can get,” Coale, a partner with Lynn Pinker Cox Hurst, told the newspaper.  “On the other hand, we are talking about giving people money to offer a place to sleep. There is stuff up in the church about religion and there will be people in the church providing a little bit of ministry.”

The Texas case comes three months after a U.S. Supreme Court ruling that prohibited government discrimination against a Missouri church that had applied for funding for playground equipment.

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Trump administration lawyers joined sides with a Colorado baker Thursday and urged the Supreme Court to rule that he has the right to refuse to provide a wedding cake to celebrate the marriage of two men, reports The Los Angeles Times.

In a friend-of-the-court brief, Acting Solicitor Gen. Jeffrey B. Wall argued that the cake maker’s rights to free speech and the free exercise of religion should prevail over a Colorado civil rights law that forbids discrimination based on sexual orientation, according to the report by David G. Savage.

Savage writes: “The brief filed Thursday is likely to bolster the cake maker’s case, and is in line President Trump’s repeated promises to protect ‘religious liberty.'”

Read the LA Times article.

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Fortune reports that Intel has won a victory of sorts in its long-running fight against a €1.06 billion ($1.26 billion) antitrust fine that was levied against it by the European Commission eight years ago.

David Meyer writes that the Court of Justice of the European Union, the EU’s top court, on Wednesday set aside the 2014 ruling of the General Court, which upheld the 2009 fine, on the basis that the General Court had made a legal error.

“This does not mean Intel is off the hook — rather, it means the General Court needs to examine Intel’s legal arguments more closely than it did before, potentially giving Intel a chance to have the fine annulled or reduced,” Meyer explains.

Read the Fortune article.

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