The American Bar Association has issued a finding stating that Justin Walker, President Trump’s nominee for the federal bench in Kentucky, is unqualified because of his lack of experience, reports the Louisville Courier Journal.

The ABA’s Standing Committee on the Federal Judiciary says Walker “does not presently have the requisite trial or litigation experience or its equivalent.”

Walker, 37, is a conservative intellectual who clerked for Brett Kavanaugh when he sat on the U.S. District Court of Appeals, according to the Courier Journal‘s Andrew Wolfson. He has practiced at Dinsmore Shohl in Louisville since January and is co-director of University of Louisville’s new Ordered Liberty Program.

Read the  Courier Journal article.

Several Trump administration officials have personal or professional ties to Boeing’s man at the center of the 737 Max jetliner crash drama. He’s J. Michael Luttig, the longtime general counsel whom the company reassigned to lead its 737 response, reports Bloomberg.

“When he was a federal appellate court judge, Luttig brought on dozens of promising young clerks who are now spread throughout the judiciary and beyond,” explain Bloomberg’s Tom Schoenberg, Julie Johnsson and Peter Robison. “In more than a decade at Chicago-based Boeing, he stocked his department with ex-government lawyers. He also tapped Kirkland [& Ellis LLP], which has a big Chicago presence, for matters as varied as acquisitions and contract disputes.”

Luttig also is wired into the Supreme Court. He was a groomsman at the wedding of U.S. Chief Justice John Roberts.

Read the Bloomberg article.

The Associated Press reports that federal, North Carolina and Virginia governments asked a court Thursday to declare the country’s largest electricity company liable for environmental damage from a leak five years ago that left miles of a river shared by the two states coated in hazardous coal ash.

The AP’s Emery P. Dalesio writes: “Government lawyers sought to have Charlotte-based Duke Energy declared responsible for harming fish, birds, amphibians and the Dan River bottom. Hazardous substances like arsenic and selenium poured into the river at levels high enough to harm aquatic life, according to a complaint filed in the North Carolina federal court district near the site of the 2014 disaster.”

Duke Energy pleaded guilty to federal environmental crimes in 2015 and agreed to pay $102 million.

Read the AP article.

Reuters reports that civil rights groups who successfully blocked the Trump administration from adding a citizenship question to the 2020 U.S. census are seeking sanctions against government officials, saying they brazenly hid the truth about the inquiry’s origins during trial.

The American Civil Liberties Union asked a New York court to grant new discovery into the alleged misconduct, as well as monetary sanctions for the government’s “concerted campaign of delay and obfuscation” during trial last November.

Reuters’ Nick Brown writes that the plaintiffs cited a list of “false or misleading” testimonies that amounted to “fraud on the court,” perpetrated by officers of the U.S. Department of Commerce, DOJ and Census Bureau.

Read the Reuters article.

Donald Trump’s re-election campaign paid his go-to law firm nearly $1 million for consulting in the latest quarter, nearly double the amount spent by Democratic presidential candidates on legal services from their leading firm reports Bloomberg Law.

“Jones Day received nearly $975,000 from Trump’s team in the latest period to raise its fee total this year to more than $2.2 million,” writes Bloomberg’s Roy Strom. “Perkins Coie picked up just over $500,000 in the quarter from Democrats vying for the nomination, Federal Election Commission records reviewed by Bloomberg Law show.”

Some other firms representing Democratic candidates include Covington & Burling; Jenner & Block; Garvey Schubert Barer; Trister, Ross, Schadler & Gold; and Sandler, Reiff, Lamb, Rosenstein & Birkenstock.

Read the Bloomberg Law article.

A Justice Department lawyer who argued in court that the federal government wasn’t legally required to provide soap and toothbrushes to detained migrant children in some conditions is defending herself after video of the exchange went viral, reports NBC News.

“Clips of her argument, along with the astonished reactions from judges hearing her testimony, were posted online and went viral, turning [Sarah] Fabian into a face of the Trump administration’s treatment of detained child migrants,” writes NBC’s Josh Lederman.

Fabian posted a message on Facebook, in which she said she shares “many people’s anger and fear” about the nation’s future. She adds that she is a career federal employee who has served since 2011, long before President Trump took office.

Read the NBC News report.

President Donald Trump’s fondness for the U.S. Supreme Court could be tested by a series of legal disputes targeting him personally – from his taxes and businesses to his 2016 election campaign – that ultimately may be decided by the justices, according to a Reuters report.

Reuters reporters Andrew Chung and Lawrence Hurley write that some legal experts speculate that “as the focus of some of the major legal challenges shifts from his policies to Trump himself, there could be disappointments in store for him, … in particular if the Supreme Court stoutly defends the ability of Congress to pursue investigations of the president.”

J.W. Verret, an expert in corporate and securities law at George Mason University in Virginia, told the reporters that conservative justices “won’t feel any loyalty to Trump, but will instead support strong separation of powers” as delineated in the U.S. Constitution.

Read the Reuters article.

The Dallas-based law firm Fears Nachawati has been retained by the Calvert County Board of County Commissioners in Maryland to pursue a lawsuit against opioid manufacturers and distributors over their role in the epidemic of addiction to these painkillers, the firm said in a release.

Representing the southern Maryland county is a legal consortium that features Matthew McCarley and Jonathan Novak of Fears Nachawati, along with attorneys from Ferrer, Poirot & Wansbrough in Dallas; Motley Rice in Washington, D.C.; and The Kane Law Group and McNamee, Hosea, Jernigan, Kim Greenan & Lynch in Maryland.

Just southeast of the Washington, D.C., metropolitan area, Calvert County has seen its public resources overburdened by the societal, health and public safety demands created by the reckless proliferation of prescription opioids, plaintiffs say.

“The opioid epidemic has continued at a horrifying pace, taking a tremendous human toll and creating intense financial and social services pressures on local governments such as Calvert County,” said McCarley. “There is no single, simple solution, but recovery cannot begin until those who knowingly created the problem are held responsible for their actions.”

Fears Nachawati currently represents 61 counties, cities and hospital systems in Texas, Florida, Kentucky, Maryland, Mississippi, New Mexico and North Dakota in lawsuits seeking to hold 30 of the nation’s largest pharmaceutical manufacturers and distributors liable for their role in the opioid addiction crisis that resulted from deceptive and illegal marketing schemes.

“While we fight to recover some of the financial costs related to the public health emergency caused by the overuse of prescription opioids, this is also about stopping these illegal and unethical practices,” said Novak.

For the first time in John Roberts’ 14 years as chief justice of the United States, he will likely be the deciding vote on several final, tense cases — a total of 24 over the next two weeks, according to CNN.

“Two of the most politically charged cases awaiting resolution, testing 2020 census questions and partisan gerrymanders, could lead to decisions favoring Republican Party interests and reinforce the partisan character of a court comprising five GOP appointees and four Democratic ones,” writes CNN’s Joan Biskupic.

Read the CNN article.

Two separate decisions in the United States Court of Federal Claims contain lessons that are generally helpful in all projects involving notice of contract changes, reports G. Scott Walters for Smith, Currie & Hancock.

“Prudent construction professionals, particularly those doing business with the government, should understand and comply with all notice provisions in their contract. Even if strict notice may not be required, it should be given early and often. Moreover, when notice is received, the prudent contractor must endeavor to understand what it means,” Walters writes.

“The court’s decisions on the notice issues may, at first, appear to contradict each other or to favor one party over the other,” he explains. “A closer look at these two decisions reveals that notice requirements, in the context of federal government construction contracts, can come in multiple forms and notice is not a ‘one size fits all’ proposition.”

Read the article.

An assistant public defender in Illinois has been fired after her boss discovered she is not an attorney, reports the Belleville News-Democrat.

Kelcie Miller was hired in October and had worked for the Madison County public defender’s office until last week, when her boss, John Rekowski, fired her.

“Rekowski said during the news conference he found out that Miller was not an attorney after a judge had checked the state’s Attorney Registration and Disciplinary Commission database of registered lawyers because a court reporter had asked the judge how to spell Miller’s first name. She was not listed,” write the News-Democrat‘s Lexi Cortes and Mike Koziatek.

Read the News-Democrat article.

Judge Amit P. Mehta

A federal judge expressed astonishment Tuesday at arguments raised by President Trump’s lawyers seeking to block his accounting firm from turning over years of financial records to the House Oversight and Reform Committee and seemed to signal a swift ruling in favor of lawmakers, reports The Washington Post.

“U.S. District Judge Amit P. Mehta fired pointed questions at the president’s lawyers, who argued in an April 22 lawsuit that the committee’s sweeping subpoena to Mazars USA for the financial records of Trump and various associated entities since 2011 was not ‘a valid exercise of legislative power,’” writes the Post‘s Spencer S. Hsu.

A lawyer representing Trump accused Democrats of “assuming the powers of the Department of Justice” on a partisan crusade.

Read the Post article.

A recent ruling provides an unfortunate example of what can happen when a contractor does not consider commercial general liability when making strategic decisions throughout the process of investigating and repairing construction defects, writes William Bennett in a web post for Saxe Doernberger & Vita.

The post continues:

The Southern District of California recently held that a series of demands for a general contractor to investigate and repair several construction defects at a U.S. Army facility did not constitute a “suit” within the meaning of the general contractor’s commercial general liability (“CGL”) policy.

In Harper Construction Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., the U.S. Government hired Harper Construction Company (“Harper”) to construct a U.S. Army training facility for the Patriot Missile System in Fort Sill, Oklahoma. No. 18-cv-00471-BAS-NLS (S.D. Cal. Mar. 28, 2019). During the project, Harper hired Harper Mechanical Contractors (“Harper Mechanical”), an independent company, as a subcontractor “to perform demolition, grading, and other work at the Project.”

After Harper completed the project, the government informed Harper of property damage at the project, “including, but not limited to, gypsum wallboard cracks and binding doors.” Harper attempted to repair the issues, but the problems continued. The issues were apparently the result of Harper Mechanical’s grading work. Subsequently, the government sent two letters requesting an investigation and asking Harper to “propose a plan to correct the issues.” As Harper undertook an investigation spanning multiple years, the government became increasingly frustrated with the delays. The government threatened to initiate “formal administrative recourse” and to demolish the project, forcing Harper to re-build from the ground up. It also sent Harper another letter requesting Harper submit a formal proposal to correct the issues.

Harper’s general liability carrier was National Union Fire Insurance Company of Pittsburgh, PA (“National Union”). Harper Mechanical was listed as an additional insured on Harper’s policy. Four years after the government’s first notification to Harper of the issues with the project, Harper’s broker submitted a claim to National Union. The broker noted that Harper was seeking additional insured coverage for Harper Mechanical under Harper’s own policy for investigation and repair costs resulting from Harper Mechanical’s work.

National Union issued a reservation of rights letter and sought more information from Harper. The parties corresponded for the next year and half, until National Union issued a denial letter indicating that there was not a “suit” against Harper seeking damages because of “property damage,” based on the policy’s definition of “suit.”

The policy contained the standard ISO CGL definition of “suit,” which is defined, in pertinent part, as “a civil proceeding in which damages because of … ‘property damage’ to which this insurance applies are alleged. ‘Suit’ includes: … b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.”

Harper sued National Union. National Union moved for summary judgment. In opposition, Harper argued that the government’s demand constituted a “suit” because the demand falls within the Contract Disputes Act (“CDA”), which includes administrative and court proceedings and qualifies as “any other alternative dispute resolution proceeding” under the policy definition. The CDA applies to “contracts made by an executive agency for, among other things, the procurement of construction … of real property.”

The court acknowledged that the CDA applied to the contract, given the Army’s status as an executive agency. However, the CDA does not automatically consider all disputes to constitute a “claim.” A dispute does not become a “claim” unless one of the contracting parties issues a “[w]ritten demand or written assertion … seeking … the payment of money in a sum certain,” at which point “each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer.” Without the claim being “submitted for a written decision by the contracting officer, which is the first step in the dispute resolution process under the CDA,” the court determined that there was “no evidence that Harper was faced with a “civil proceeding in which damages … are alleged” or “any other alternative dispute resolution proceeding,” as required by the policy’s definition of “suit.” The court also noted that there was no evidence that National Union had consented to any of the processes involved in the dispute, which is a further requirement of the definition of “suit.”

The court granted summary judgment for National Union based on the conclusion that the CDA demands did not constitute a “suit.” This case is an unfortunate example of what can happen when a contractor does not consider coverage when making strategic decisions throughout the process of investigating and repairing construction defects. The result could potentially have been favorable for Harper had it notified National Union early (and often) of the issues, involved coverage counsel to work with its defense and/or general counsel to strategize about how to cast the proceedings as a “suit” under the CDA, and followed the proper channels under the CDA to solidify its position that the parties were involved in ADR proceedings under existing California law.

The Environmental Protection Agency has proposed weaker standards for cleaning up dangerous groundwater contamination sites across the country where chemicals containing fluorine-based PFAS compounds threaten drinking supplies of millions of Americans, according to a post by Androvett Legal Media & Marketing. The proposal would lower existing requirements for addressing groundwater contamination at military bases where large amounts of contamination have been documented.

“We’ve seen companies like 3M and DuPont fail to take responsibility for the health risks caused by the chemicals they created. Federal regulators should be increasing – not decreasing – oversight at this time,” said water contamination attorney Bryan Fears of Dallas-based Fears Nachawati, who represents individuals and local governments in water contamination litigation against makers of the chemicals. “This problem is not going away and cleaning up these sites must be a priority.”

Called “forever chemicals” because they never fully degrade, PFAS compounds have been found in drinking water used by 110 million people across the nation and in the blood of 98 percent of Americans. The compounds, which are found in hundreds of consumer and industrial products, have been linked to immune system problems and cancer. The EPA proposal would extend the timetable for cleanup at more than 400 military bases where the use of fire-retardant foam containing the chemicals has been blamed for serious groundwater contamination problems.

The EPA proposal is under a 45-day review and comment period. “Now is the time for Americans to speak up about this problem and ensure that contamination is addressed sooner rather than later,” said Fears. “This is a fight for safe drinking water for our communities, families and future generations to come.”

The trial involving Hurricane Harvey-related claims from Houston-area property owners who were flooded by the water release from two U.S. Army Corps of Engineers reservoirs will begin on May 6, according to a post on the website of Androvett Legal Media & Marketing.

“We’re pleased that we can finally present the evidence to claim fair compensation for the residents whose property was flooded because of the government’s failures,” said Daniel Charest of Burns Charest LLP, co-lead counsel for the residents. “The Corps of Engineers knew its reservoirs and management plans would result in the flooding of private property, which is exactly what happened in August 2017.”

An estimated 8,000 to 10,000 homes and businesses flooded near government-run dams to the west of Houston. The plaintiffs allege the actions of the Corps of Engineers and its design of the reservoirs led to the flooding of their private property, resulting in an unlawful “taking” of land under the Fifth Amendment of the U.S. Constitution.

The Addicks and Barker reservoirs were built in the 1940s and 1950s. Over the years, the government allowed developers to build thousands of homes and businesses on land that the Corps knew was at risk of flooding, according to plaintiffs. During Harvey’s rains, some of these properties flooded from reservoir overflow, and others flooded when the Corps chose to release water to protect the dams.

The two-week bench trial is before the Court of Federal Claims but will take place in the federal courthouse in downtown Houston.

Miller & Chevalier Chartered has added Abigail (Abi) Stokes as counsel in the firm’s Government Contracts practice. Stokes joins the firm after almost 10 years as a first-chair government contracts attorney for the United States Department of the Navy.

While she was with the Navy, Stokes had responsibility for numerous, high-value programs and was awarded an Acquisition Excellence award, as well as the U.S. Navy’s Meritorious Civilian Service Award, the firm said in a news release. Her experience includes litigating numerous bid protests and counseling on statutory and regulatory compliance issues throughout the procurement lifecycle.

Stokes earned a J.D. from the University of California, Hastings College of the Law, and a B.S. from the University of California, Davis. She began her legal career as a law clerk to the Honorable Alex R. Munson of the U.S. District Court for the Northern Mariana Islands.

A small Labor Department agency with sizable oversight is looking closely at Big Law firms like Morgan Lewis & Bockius, Fox Rothschild, and Paul Hastings, as part of its mission to address compensation and promotion practices in the legal industry, reports Bloomberg Law.

“The DOL’s Office of Federal Contract Compliance Programs recently cautioned law firms that do work with the federal government that it will be closely analyzing how their employment practices affect diversity,” reports Bloomberg’s Paige Smith. “At least 10 firms will be audited by the OFCCP in 2019, and the agency’s director Craig Leen said investigators may target the legal industry in particular in future probes.”

Some big law firms are facing a wave of litigation over alleged discrimination against women and people of color.

Read the Bloomberg Law article.

Elon Musk and the Securities and Exchange Commission have come to a settlement agreement over the Tesla CEO’s errant behavior on social media: All of Musk’s communication via social media, the company’s website, press releases, and investor calls must be preapproved by an “experienced securities lawyer.”

Musk got into trouble with the SEC earlier this year when he tweeted a projection about Tesla vehicle production that the agency considered to be misleading.

Business Insider reports that Musk must “implement mandatory procedures and controls” providing oversight of all of his communications regarding the company “made in any format.”

Read the Business Insider article.

Expert Webcast will present an interactive roundtable discussion municipal restructuring on May 2, 2019, 1-2 p.m. Pacific Time, with Andy J. Dillon, executive director at Conway MacKenzie, and Karol K. Denniston, partner at Squire Patton Boggs, and moderated by Alex Kasdan, senior managing director, DelMorgan & Co.

Dillon acted as treasurer for the state of Michigan, managing 1,450 employees, where he was responsible for collecting more than $50 billion in annual revenues, tax administration, collections, bond finance, school loan programs, local government oversight, and served as the sole fiduciary of $60 billion in pension, 401K, state trust and cash assets. While treasurer, Dillon also led two state reviews of the City of Detroit’s finances, negotiated a consent agreement between the city and state and transitioned the city into receivership. Dillon also provided hands on oversight of dozens of troubled cities, counties and school districts, Expert Webcast said in a release.

Denniston, a bankruptcy and restructuring lawyer for more than 30 years, has experience representing debtors, creditors, bondholders and other parties in a wide variety of litigated bankruptcy cases and out of court transactions. Denniston has been working in the distressed municipal sector since 2009 and routinely represents cities, special districts, indenture trustees, bondholders, taxpayers and monoline insurers in a variety of municipal restructuring engagements throughout the US. She has represented clients in municipal insolvency proceedings with a focus on negotiating resolutions, including in Puerto Rico PROMESA restructurings for the Government Development Bank and COFINA.

Register for the roundtable.

CNBC is reporting that the Justice Department has launched a criminal investigation in a matter relating to Ford Motor’s emissions certification process.

“The matter stems from issues related to road load estimations, including analytical modeling and physical track testing,” writes CNBC’s Amelia Lucas. “Road load is a vehicle-specific resistance level that helps determine fuel economy ratings and emissions certifications. It does not involve the use of defeat devices to cheat on emissions tests.”

The company said it voluntarily disclosed disclosed the issue to the Environmental Protection Agency on Feb. 18 and has hired outside experts to investigate its vehicle fuel economy and testing procedures after employees raised concerns.

Read the CNBC article.