A looming legal brawl over a new Federal Energy Regulatory Commission order will trigger a fresh round of judicial scrutiny focused on the line between state and federal authority in wholesale power markets, reports E&E News.

“Power producers and state regulators last month sued in the U.S. Court of Appeals for the District of Columbia Circuit over Order No. 841, a FERC directive that opens the door for batteries and other energy storage technologies to participate in wholesale electricity markets — even if they are behind a retail meter,” according to E&E News’ Pamela King.

She quoted Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative: “This is a big deal because potentially we’ll see whether FERC has the authority to invite distribution-level resources into the market.”

Read the article.

A legal victory for Delta Air Lines this year is unique in that it is the first time that a court has determined that a business owes no obligation of privacy to a customer because its privacy policy explicitly disclaims any type of contractual relationship between the business and its customers, writes Sunrita Sen in the Frost Brown Todd fbtTech Blog.

The case involved a breach of contract claim over the data breach suffered by the airline in 2017.

A U.S. district judge dismissed the claim, agreeing with Delta that the Airline Deregulation Act preempted the plaintiff’s breach of contract claims.

Read the article.

A recent case from the National Labor Relations Board shows that American labor law, including principles that apply to collective bargaining agreements, is not always as straight-forward as basic contract law, points out Barnes & Thornburg in a recent post.

The contract included a clause setting “longevity pay increases” for workers who reached certain tenure milestones with the company.

“The employer and union were meeting to negotiate a successor contract, and the agreement expired in the interim,” explains David J. Pryzbylski. “Once the labor agreement expired, the company ceased offering longevity pay increases on grounds that there was no agreement in effect that provided for such increases.”

The NLRB, however, found that a company generally must continue to offer employees the terms set forth under a collective bargaining agreement when it expires and while negotiations for a new contract are underway.

Read the article.

Bloomberg Law reports that a North Dakota lawyer can’t pursue his First Amendment claims against the state bar association over compulsory membership and annual dues.

Bloomberg’s Jennifer Bennett explains: “Arnold Fleck sued after learning the State Bar Association of North Dakota was using some of his dues to oppose a state ballot measure he supported. He accused the state bar of violating his right to affirmatively consent before it spent his dues on non-germane political or ideological activities. Fleck also argued that requiring attorneys to belong to SBAND in order to practice law infringes on his ‘right to freedom of association and to avoid subsidizing speech with which he disagrees,’ Judge James B. Loken’s opinion said.”

The case was back in the U.S. Court of Appeals for the Eighth Circuit after the U.S. Supreme Court granted Fleck’s petition, summarily vacated the Eight Circuit’s decision, and remanded the suit for reconsideration.

Read the Bloomberg Law article.

CNBC reports that Google’s YouTube will pay $170 million to settle allegations by the Federal Trade Commission and the New York attorney general that it earned millions by illegally collecting personal information from children without their parents’ consent.

The settlement passed in a 3-2 vote by the commissioners, with the two Democrats voting against it, saying it did not go far enough to punish YouTube.

“The settlement requires Google and YouTube to pay $136 million to the FTC and $34 million to New York for allegedly violating the Children’s Online Privacy Protection Act,” according to CNBC.

FTC Commissioner Rohit Chopra dissented to the settlement, saying: “This latest violation is extremely serious. The company baited children using nursery rhymes, cartoons and other kid-directed content on curated YouTube channels to feed its massively profitable behavioral advertising business.”

Read the CNBC article.

The U.S. Court of Appeals for Veterans Claims has issued a major decision that could restore billions of dollars in Post-9/11 GI Bill and other educational benefits to military service members of the Post-9/11 era, according to a release from Hunton Andrews Kurth.

The firm’s release describes the case:

Since World War II, Congress has provided veterans with different GI Bill benefits for different periods of qualifying service. Nevertheless, since 2009, the Department of Veterans Affairs has required veterans with more than one period of separately qualifying service to relinquish or exhaust their entitlement to Montgomery GI Bill benefits before utilizing their Post-9/11 GI Bill benefits, thereby capping most veterans’ combined GI Bill benefits at 36 months.

In BO v. Wilkie, the court on Aug. 15 rejected this practice, declaring that the law “require[s] neither relinquishment nor exhaustion” and determined that the law allows veterans with separately qualifying service “to receive entitlement under both programs subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall.”

The court reversed a decision by the VA’s Board of Veterans’ Appeals and ordered the board to recalculate BO’s entitlement to GI Bill benefits. Attorneys from Hunton Andrews Kurth LLP and Dominion Energy, the appellant’s pro bono counsel, estimate that the decision impacts millions of veterans affected by the VA’s illegal practice and those who would have been affected.

“BO” is the identifier given to the veteran in this case, which is sealed to protect national security and BO’s service as a federal counterterrorism agent. BO is also a highly decorated Army combat veteran of the pre- and post-9/11 eras. After an initial period of enlisted military service, he attended college on the Montgomery GI Bill, then returned to the Army as a commissioned officer. In 2015, he applied for post-9/11 benefits based on his commissioned service so that he could attend Yale Divinity School and then become an Army chaplain.

But based on its misreading of the law, the VA forced BO to forfeit his remaining Montgomery benefits and limited his Post-9/11 benefits to the amount of the forfeited benefits. The VA rejected his repeated calls to correct its error, forcing him to appeal its decision. During the lengthy appellate process, BO had to give up his Yale admission and became ineligible to return to the Army because of his age, but he continued to press his appeal to receive the correct amount of benefits, and, more importantly to him, for the benefit of all veterans.

“BO urges the VA to take immediate, affirmative action not only to correct his educational entitlements, but also to identify the many veterans impacted by the court’s decision and notify them of the restoration of their hard-earned benefits,” said Hunton Andrews Kurth lawyer Timothy L. McHugh, who represented the appellant.

The legal team also included Dominion Energy senior counsel David J. DePippo, as well as lawyers and staff with Hunton Andrews Kurth’s Veterans Pro Bono Program.

The Dallas Morning News reports that career Fort Worth defense contractor is in trouble for allegedly making false claims about the type of aluminum he provided under a contract for aircraft landing gear, court records show.

Ross Hyde, 63, has been charged in federal court and faces up to five years in prison, if convicted, writes the News‘ Kevin Krause.

Hyde’s company, Vista Machining Co., has supplied the Pentagon with parts for tanks, aircraft and other military equipment, but inspectors said many of his products were cheap replacements, some illegally obtained from China, which he tried to hide from the government.

Read the  Morning News article.

In a much-awaited and pivotal decision in the PG&E chapter 11 proceeding, the U.S. Bankruptcy Court for the Northern District of California held that it not only has exclusive jurisdiction over the rejection of wholesale power-purchase agreements, but that the Federal Energy Regulatory Commission has no such jurisdiction and any determinations by FERC to the contrary would be void, according to Holland & Hart.

“While the decision might not be surprising to most bankruptcy practitioners, the proposition that FERC has no jurisdiction over the breach or modification of a power-purchase agreement is not only shocking to energy practitioners, but contrary to well-established authority in the energy arena,” the firm said on its website.

Read the article.

The Houston Chronicle reports the U.S. Securities and Exchange Commission is investigating Houston-based SAExploration Holdings for allegedly providing “material misstatements” and misleading financial information to its investors and to the federal agency over the past four years, according to documents filed by the company with the SEC.

In the new SEC documents, the Houston-based international oilfield services company reported that it has fired its general counsel, who also served as its chief financial officer, and has removed its chairman and chief executive officer.

The ex-GC is Brent Whiteley, who had been an executive at SAExploration since March 2011 and also held the title of chief financial officer. Long-time chairman and CEO Jeff Hastings has resigned from the board and has been placed on administrative leave.

Read the Houston Chronicle article.

Breaking with eight other circuits, the Seventh Circuit ruled Wednesday that the Federal Trade Commission lacks authority to seek restitution from companies that defraud consumers, and vacated a $5 million judgment against a credit-monitoring company, reports Courthouse News Service.

The case involves a lower court’s imposition of $5 million in restitution from the target of an FTC action. Regulators said Michael Brown and his company, Credit Bureau Center, offered consumers “free” credit reports and then automatically enrolled them in a $29.94 monthly membership to a credit-monitoring service without notice.

Section 13(b) of the Federal Trade Commission Act authorizes the FTC to seek restraining orders and injunctions, but not specifically restitution, writes Courthouse News’ Lorraine Bailey.

Read the Courthouse News Service article.

The company that was the target in a sweep of workers allegedly living in the country illegally had a history of “knowingly hiring and employing illegal aliens,”  according to allegations in an unsealed affidavit for a federal search warrant.

The Chicago Tribune reports that “Six of seven Mississippi chicken processing plants raided were ‘willfully and unlawfully’ employing people who lacked authorization to work in the United States, including workers wearing electronic monitoring bracelets at work for previous immigration violations, the affidavit alleges.”

The sworn statements supported the search warrants that led a judge to authorize the raids, and aren’t official charges.

A spokesman for the company, Koch Foods, denied that the company knowingly or willfully employed any unauthorized workers at its Morton, Miss., plant.

Read the Chicago Tribune article.

The U.S. Bankruptcy Court for the Northern District of California held that it has exclusive jurisdiction over the rejection of wholesale power-purchase agreements, reports Holland & Hart in an article written by Risa Wolf-Smith.

The court also found that the Federal Energy Regulatory Commission has no such jurisdiction and any determinations by FERC to the contrary would be void.

“While the decision might not be surprising to most bankruptcy practitioners, the proposition that FERC has no jurisdiction over the breach or modification of a power-purchase agreement is not only shocking to energy practitioners, but contrary to well-established authority in the energy arena,” writes Wolf-Smith.

Read the article.

A post on the website of Mackay, Caswell & Callahan discusses the basics of drafting contracts associated with Section 1031 exchanges.

The author explains that this section in the tax code allows taxpayers to use borrowed tax money to purchase more investment or business property.

The article covers the required elements in the exchange agreement, the differences between these agreements and qualified exchange accommodation agreements, assignability, the cooperation clause and release of liability, compliance with receipt requirements, and more.

Read the article.

A judicial disciplinary hearing will determine the future of California judge Jeffrey Johnson’s career on the bench, in light of a list of allegations of sexual harassment, misconduct and drunken behavior, reports Above the Law.

The Commission on Judicial Performance has begun a four-week proceeding to consider the 10 counts of alleged misconduct covering a period of 20 years. The defense plans to call 168 witnesses.

“Johnson has also responded to the controversy with a lawsuit of his own.” writes Above the Law’s Kathryn Rubino. “Last month he filed a $10 million lawsuit against the court and the administrative presiding justice, Elwood Lui, alleging emotional distress.”

Read the Above the Law article.

The Society of Corporate Compliance and Ethics’ 18th Annual Compliance & Ethics Institute will feature leading industry experts who will cover real world compliance issues, emerging trends, and practical applications.

The event will be in National Harbor, MD, Sept. 15-18, 2019.

Participants will learn about current hot topics such as global antitrust compliance, Office of Foreign Assets Control (OFAC) sanctions, artificial intelligence, and preventing harassment and discrimination.

The SCCE says CEI is ideal for any professional who deals with compliance and ethics issues as part of their job duties, including compliance and ethics professionals, in-house and outside counsel, audit managers/officers, consultants, corporate executives and leaders, human resource managers, information officers, privacy officers, regulators and other government personnel, researchers and policy makers, risk managers, staff educators and trainers.

Get more information or register.

New Orleans attorney Gregory Joseph St. Angelo, former general counsel at a failed First NBC Bank who pleaded guilty earlier this month to a bank fraud charge, was indefinitely suspended following a Louisiana Supreme Court order, reports Louisiana Record.

St. Angelo had pleaded guilty to a federal charge of conspiracy to commit bank fraud after the former general counsel reached a plea agreement with the U.S. Attorney’s Office.

“By the time First NBC Bank failed in late April 2017, the balances on loans issued to St. Angelo and certain entities totaled approximately $46.7 million, and First NBC Bank had also paid St. Angelo approximately $9.6 million for purported tax credit investments,” a criminal bill of information said.

Read the Louisiana Record article.

Trial lawyer Clayton Bailey, co-founder of Dallas litigation boutique Bailey Brauer, is a primary contributor to the first edition of the American Bar Association’s recently released Agriculture and Food Handbook.

The handbook provides a comprehensive review of the regulatory, antitrust and consumer protection issues affecting the food and agriculture industries.

The firm said Bailey contributed to sections exploring issues specifically affecting the beef and poultry industries. He also explained the administration and enforcement of the USDA’s Packers and Stockyards Act of 1921, which ensures fair competition and fair trade practices in the livestock and poultry industries.

Bailey’s legal practice involves trying and appealing cases in state and federal courts across the country. He also represents clients before federal and state agencies, including the Department of Justice and the U.S. Department of Agriculture. Bailey Brauer represents some of the world’s largest agriculture companies, including some that are engaged in the biggest litigation disputes in the industry.

The Agriculture and Food Handbook is available for purchase from the American Bar Association.

Bloomberg Law reports the California Supreme Court opened an investigation into how law school deans were tipped to subject areas in this week’s bar exam.

“Topics were released in an email last week to deans of 16 law schools invited to observe the California Bar Examination grading process. The bar said it ‘had no evidence’ that leaked information had been shared with students,” explains Bloomberg’s Joyce E. Cutler.

The email listed subject areas of civil procedure, remedies/constitutional law, criminal law and procedure, professional responsibility, and contracts.

The California Bar decided to release the list instead of canceling the exam or changing the topics for the two-day test starting July 30.

Read the Bloomberg article.

Actions by two Massachusetts lab technicians over several years led to courts retroactively dismissing nearly 38,000 drug convictions dating back a decade. Now, the prosecutors who handled the case are facing their own legal troubles, reports The Washington Post.

The Massachusetts state bar has filed disciplinary charges against three of the assistant attorneys general who withheld evidence from defendants, and a federal judge has ruled that one of the prosecutors is not entitled to immunity and can be sued by one-time defendant Renaldo Penate for violating his civil rights, writes the Post‘s Tom Jackman.

Records indicate one of the technicians was suspected of stealing and using illegal drugs that had been submitted to her for testing.

Read the  Post article.

Bloomberg Law reports that conservative lawyer and activist Larry Klayman violated numerous professional conduct rules in his representation of an Iranian-born journalist and should be suspended from the practice of law for 33 months, a Washington hearing committee said.

“Klayman allegedly represented Elham Sataki, a plaintiff in a sexual-harrassment suit, for a 40% contingency fee, but didn’t commit the fee to writing,” writes Bloomberg’s Martina Barash. “Klayman allegedly became infatuated with Sataki and repeatedly sought a romantic relationship with her. When she declined, he told her the fee would be 50%, and verbally abused her, according to the 185-page report.:

The committee recommended a suspension of 12 to 18 months for Klayman’s conflict-of-interest violations alone.

Read the Bloomberg Law article.