The battle between the White House and Omarosa Manigault over the scope of her disclosures brings the issue of Non-Disclosure Agreements (NDA), and their efficacy and enforceability to the forefront, points out a blog post for Obermayer Rebmann Maxwell & Hippel.

“Employers frequently seek to use NDAs as a sword once the employment relationship is broken or a termination takes place,” writes Dove A.E. Burns. “However, employers often require such agreements in order to broadly limit disclosure far beyond what is legally enforceable. Reaching in this manner can lead to legal liability, nullification and an ethical quagmire.”

Her article discusses the law regarding NDAs for government employees and for non=government employees.

Read the article.

The ABA Journal reports that former Dewey & LeBoeuf chairman Steven Davis has reached an agreement with the U.S. Securities and Exchange Commission to pay a $130,000 civil penalty.

The SEC alleged that some executives of Dewey & LeBoeuf, which closed in 2012, misled lenders and bond buyers about the firm’s financial condition.

Dewey’s former finance director former controller also agreed to pay civil penalties.

Read the ABA Journal article.

Stefan Passantino, former White House Deputy Counsel in charge of compliance and ethics oversight, has joined Michael Best’s Government Relations, Public Policy & Compliance Practice Group in Washington, D.C. Passantino is the newest addition to join Michael Best’s team of former White House staff, including former Chief of Staff Reince Priebus.

In a release, the firm said Passantino joins Michael Best after serving as Deputy Assistant to the President and Deputy Counsel since January 2017. An Atlanta native, Passantino’s work in the political law and compliance arena dates to the early 2000s. Passantino previously chaired the Political Law group at McKenna Long & Aldridge, LLP, which then merged with the global law firm Dentons U.S., LLP, where he counseled corporations, advocacy and lobbying groups, candidates and campaigns on matters of election law, state and federal lobbying rules, and ethics regulations compliance.

“I’ve known Stefan to be an exceptional attorney with an inherent ability to understand the complexities of regulatory and compliance matters better than most seasoned veterans in Washington,” said Reince Priebus, President of Michael Best & Friedrich LLP and Chief Strategist for Michael Best Strategies LLC. “His addition will be a statement to our industry and underscore our strategic vision in the Beltway and nationally. Michael Best is taking important steps to make its mark on Washington, D.C., as a new power player in town.”

At Michael Best, Passantino will focus his practice on serving corporations and businesses in the areas of campaign finance, public policy, and compliance counseling concerning the rules and regulations related to corporate involvement in political activities, the firm said.

“Stefan is a great addition to our firm having served at the highest level of the Executive Branch, and his extensive experience will greatly benefit our clients,” said David Krutz, Firm Managing Partner of Michael Best. “A Chambers rated lawyer, Stefan is widely respected for his temperament and ability to provide sound counsel concerning campaign and ethics compliance — and he will strengthen our already strong presence inside the Beltway.”

“Our strategic initiatives to expand our business presence and bring on valuable, top-level, talent are bolstered by the addition of Stefan. He will be a key asset in our efforts to provide the broadest and highest-level counsel to our clients,” said Kevin Barner, managing partner of Michael Best’s Washington, D.C., office.

The addition of Stefan Passantino comes on the heels of Michael Best announcing the relocation of its Washington, D.C., office to 1000 Maine Ave., “The Wharf,” where it is scheduled to occupy the space in early 2019.

Passantino earned his J.D. from the Emory University School of Law, where he served as managing editor of the Emory Law Journal and received his B.A. in Political Science from Drew University.

The Senate reached a deal Tuesday to swiftly confirm seven federal district court judges, helping President Donald Trump put an enduring stamp on the U.S. judiciary, reports Bloomberg.

One of the Trump nominees, Charles Barnes Goodwin in the Western District of Oklahoma, had been rated “not qualified” by the American Bar Association. Goodwin’s “work habits, including his frequent absence from the courthouse until mid-afternoon,” raised doubts among a majority of the members of the ABA Standing Committee on the Federal Judiciary.

Susan Paradise Baxter, whom President Barack Obama also nominated but who was stalled by the Republican-controlled Senate, was confirmed to the Western District of Pennsylvania.

The Senate is scheduled to vote on a second failed Obama nominee to the same court, Marilyn Jean Horan, along with seven other district court nominees, “at a time to be determined next week.”

Read the Bloomberg article.

A recent decision from the Virginia Supreme Court further weakens the enforceability of teaming agreements, which may mean trouble for prospective subcontractors, according to an alert from Baker & Hostetler.

The post explains:

“In light of CGI Federal, contractors should assess whether they can reasonably rely on the terms and conditions of their teaming agreements to provide meaningful assurances regarding the negotiation of a prospective subcontract without binding themselves to more definite terms prior to any prime award, at least under Virginia law. Accordingly, unless contractors wish to consider the law of other forums when negotiating their teaming agreements, they must pay close attention to the specific terms and conditions of their contracts when evaluating what is and is not enforceable and govern their pre-award conduct accordingly.”

Read the article.

Canopy Programs’ new white paper, “An Update on the U.S. Department of Education’s Clery Enforcement Measures,” provides an overview of the Clery review process and cases involving institutions that were fined for Clery Act violations in 2017.

Despite the change in federal administration, the U.S. Department of Education has continued to aggressively enforce the Clery Act. Specifically, the department issued fines against 10 institutions in 2017 based on program reviews that were conducted in the past several years totaling $800,000, or an average of $80,000 per institution.

The complimentary white paper offers insight into these cases, including:

• A review of the institutional demographics by type and enrollment size
• What caused the program reviews to take place
• An analysis of the length of time for the program reviews
• Which categories of violations resulted in fines

Download the white paper.

Micah Dortch, managing partner of the Dallas office of the Potts Law Firm, has been appointed a special receiver in litigation originally brought by the Securities and Exchange Commission against a group of Texas businessmen, the firm announced. That lawsuit seeks to recover funds from what was characterized as a fraudulent investment scheme directed by Thurman P. Bryant III of Frisco and Arthur E. Wammel of Pearland, along with affiliated companies and individuals.

The firm says that evidence in the case revealed that, in less than three years, the defendants were able to withdraw or transfer more than $20 million in cash from Wells Fargo Bank accounts in violation of industry standards and the bank’s own policies. Despite numerous five-figure and six-figure cash withdrawals, Wells Fargo management never verified, questioned or restricted any of the activities, according to allegations.

According to the SEC complaint, originally filed in 2017, the defendants raised more than $22 million from more than 100 investors to purportedly fund short-term mortgage loans for later sale to long-term lenders. The SEC says that no such program existed, and that Bryant and Wammel were operating a Ponzi scheme, with limited returns paid to investors from monies raised from other investors.

Dortch has been appointed by the court to investigate the role of Wells Fargo in the matter and to seek financial compensation on behalf of the defrauded investors, filing a complaint alleging that Wells Fargo failed to follow its fiduciary role.

“As stated in the complaint, Wells Fargo either knew about the scheme or willfully ignored the questionable actions being made in violation of its own internal rules,” said Dortch. “I’m honored to take on this role and gain a just resolution for these innocent victims.”

The case is Ecklund v. Wells Fargo Bank, N.A., No. 4:18-cv-00452-ALM, filed in U.S. District Court for the Eastern District of Texas in Sherman.

The federal government challenged a judicial decision allowing AT&T to purchase Time Warner, arguing to a federal appeals court in Washington that the ruling suffered from “faulty logic” and ignored basic economic principles, according to The Washington Post.

The Justice Department asserted that the district court misunderstood the power dynamics at work when television distributors such as AT&T negotiate with TV programmers over content prices and terms, writes Brian Fung.

In its filing, the DOJ called the decision a “deeply flawed assessment of the government’s evidence.”

“It is fundamental to the economics of bargaining that a party derives leverage from having the ability to walk away, even if it never actually does so,” the Justice Department wrote.

Read the Washington Post article.

During the latest National Health Care Fraud Takedown, investigators targeted Houston and Dallas to identify and charge more than 40 people with a range of fraud allegations.

How is a region designated as a health care strike force area? Former federal prosecutor and Houston trial attorney Ashlee McFarlane of Gerger Khalil & Hennessy explains in a post on the website of Androvett Legal Media & Marketing.

“Dallas is a health care strike force city, meaning the Department of Justice and federal agencies have identified Dallas (like Houston) as a hot bed for health care fraud, based on data analysis and reviewing payments of claims submitted to federal health care benefit programs like Medicare,” says McFarlane.

“Kickbacks are the foundation of almost every health care fraud case. “As a former prosecutor, I can tell you—kickbacks are the first thing agents and prosecutors look for in building an investigation.

“There’s no way to know the number of kickbacks being paid in a city. You have to start investigating a case. However, when there are providers who are outliers in the billing data, federal agents often look to see if kickback payments are used to induce referrals.”

Dallas and Houston are among 10 locations nationwide with Medicare Fraud Strike Force operations. According to the Department of Justice, a Medicare Fraud Strike Force consists of a partnership between the DOJ and Department of Health and Human Services to prevent fraud and enforce anti-fraud laws.

A growing number of lawyers, interpreters and other professionals across the U.S. — members of Lawyers for Good Government — have mobilized to force the Trump Administration to defend its immigration policies in court.

Bloomberg reports that the organization, which was launched as a Facebook group the day after Trump was elected president, is working on behalf of people who have been detained after they sought asylum for themselves and their children because they said they feared for their lives in their home countries.

Reporter Nick Leiber writes that “L4GG has only one employee: founder, president, and executive director Traci Feit Love, a Harvard Law School graduate and former litigator for DLA Piper, one of the biggest law firms in the world. She and her board have been figuring out how to direct L4GG’s volunteers—a significant chunk of the 1.34 million attorneys in the U.S.—to make them useful.”

Read the Bloomberg article.

The Tennessean reports that the U.S. Senate voted 70 to 23 on Thursday to confirm Paul Ney as the general counsel for the Department of Defense.

Ney, of Nashville, has worked for the past two years in the Tennessee attorney general’s office where he currently serves as chief deputy attorney general. In that role, he coordinated and supervised legal work for all of the office’s divisions, writes reporter Michael Collins

As Defense Department general counsel, he will be involved in issues involving personnel, conduct and other matters.

Read the Tennessean article.

A recent Armed Services Board of Contract Appeals decision confirmed that waiver defenses can defeat government demands for strict compliance with contract requirements, reports Cohen Seglias Pallas Greenhall & Furman.

Authors Maria L. Panichelli and Alissandra D. Young explain that the Board found in Appeal of American West Construction, LLC that the U.S. Army Corps of Engineers had effectively waived the right to enforce a construction contract specification.

“This meant that the government could not recover from the contractor the difference in the price it paid for the original specification and the lower amount spent by the contractor to perform the deviation,” they write. “In a world where the government often has the right to strictly enforce contract requirements and hold contractors financially responsible for any deviation, this decision is a big win for construction contractors.”

Read the article.

The Los Angeles Times reports that Democrats, though narrowly outnumbered in the Senate, are embarking on a Hail Mary campaign to block President Trump’s pick for the U.S. Supreme Court.

Reporter Sarah D. Wire explains: “Flipping a moderate Republican is probably their only hope. And that only works if they can keep Democrats who represent red states that Trump won from breaking ranks.”

Democrats are planning to stress Trump’s repeated promises to only appoint justices who would overturn Roe v. Wade.

Wire quotes Brian Fallon, Hillary Clinton’s former press secretary, who now runs the liberal advocacy group Demand Justice: “While these litmus-test-style commitments may have been politically sensible for Donald Trump at the time when he was running in the campaign in 2016, we believe they will come back to haunt his nominee in this summer’s confirmation battle.”

Read the LA Times article.

Energy giant Halliburton failed to act as two Muslim workers in North Texas were regularly harassed about their religion by supervisors and co-workers, the federal government alleges in a lawsuit.

Bloomberg Law reports the Equal Employment Opportunity Commission alleges Hassan Snoubar and Mir Ali were harassed and otherwise discriminated against because of their national origin. Snoubar is from Syria, and Ali is from India. Both worked for Halliburton Energy Services Inc. as operator assistants, the EEOC says.

Reporter Patrick Dorrian  writes: “The lawsuit continues the agency’s crackdown on employer practices or other workplace behaviors that target workers who are Muslim or Sikh, or of Arab, Middle Eastern, or South Asian descent. Eliminating such discrimination is one of the federal job rights watchdog’s top enforcement priorities.”

Read the article.

Government Executive reports that a former top legal adviser to the Immigration and Customs Enforcement bureau was sentenced to 48 months in prison for wire fraud and identity theft affecting aliens, the Justice Department announced on Thursday.

Reporter Charles S. Clark writes that “Raphael Sanchez, 44, of the ICE Office of Principal Legal Advisor based in the Pacific Northwest, had pleaded guilty in February to running a scheme to defraud aliens in various stages of immigration removal by using their personally identifiable information to open lines of credit and personal loans in their names. He would then manipulate their credit bureau files, transfer funds to himself and purchase goods for himself using credit cards issued in their names, [the Department of] Justice said.”

Sanchez admitted to using the agency’s computer database as well as paper files to steal the personal information.

Read the Government Executive article.

Conservatives on the Supreme Court said Wednesday that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union, a major blow for the U.S. labor movement, reports The Washington Post.

Reporter Robert Barnes writes that the 5-to-4 decision overturned a 40-year-old precedent and said that compelling such fees was a violation of workers’ free speech rights. The old rule could force the workers to give financial support to public policy positions they oppose, the court said.

“States and public-sector unions may no longer extract agency fees from nonconsenting employees,” Justice Samuel A. Alito Jr. wrote for the majority. “This procedure violates the First Amendment and cannot continue.”

Read the Post article.

The U.S. Supreme Court, winding down its nine-month term, will issue rulings this week in its few remaining cases including a major one on the legality of President Donald Trump’s ban on people from five Muslim-majority nations entering the country, reports Reuters.

“The nine justices are due to decide other politically sensitive cases on whether non-union workers have to pay fees to unions representing certain public-sector workers such as police and teachers, and the legality of California regulations on clinics that steer women with unplanned pregnancies away from abortion,” write Lawrence Hurley and Andrew Chung.

On the subject of collecting fees for union from non-members, the court’s conservatives indicated opposition during arguments on Feb. 26 to so-called agency fees that some states require non-members to pay to public-sector unions.

Read the Reuters article.

Three women have filed a federal class action lawsuit claiming that the Travis County District Attorney’s office and the Austin Police Department have violated the constitutional rights of women and discriminated based on gender in the manner in which they handle sexual assault cases.

The lawsuit notes that while more than 1,000 women report a sexual assault to Austin police each year, the number of cases actually taken to trial annually are in the single digits, according to a post on the website of Androvett Legal Media & Marketing.

The lawsuit alleges that Travis County DA Margaret Moore has ratified the discriminatory policies publicly, making statements that acquaintance rapes are really more “traumatic occurrences” than criminal acts.  Moore has also indicated that the testing of the backlog of thousands of rape kits in Austin is for “informational purposes” and not for prosecution, confirming her office’s intent not to seek justice for those victims.

The lawsuit also notes that the Austin Police Department’s sexual assault unit at one time had a wall with photos of victims whose claims had been “debunked” by officers as “trophies of their investigations which determined allegations by purported victims were unsubstantiated.”

Finally, the lawsuit notes that while women make up 91 percent of sexual assault victims, the only case taken to trial in 2017 involved a male victim.  In that instance, the Travis County Sheriff’s Office and the DA were aware of allegations by multiple women in previous years against the same perpetrator, but those cases were never prosecuted.

“[The] unconstitutional conduct by Defendants subjects both victims and all the women of Austin to continued risk at the hands of perpetrators who are never held accountable,” according to the complaint, filed in the U.S. District Court for the Western District of Texas. The lawsuit, which seeks class-action status, claims that the dominant culture and ongoing and historical failures by local law enforcement to pursue sexual assault cases establishes a conspiracy to violate the civil rights of an estimated 6,000 sexual assault victims, while also violating their constitutional rights for equal protection.

“It is shocking that the vast majority of women who survive sexual assault are provided so little protection or recourse, and are essentially blamed for the refusal of law enforcement to seek justice in their cases,” says Jennifer Ecklund of Thompson & Knight and lead counsel for the plaintiffs. “Women go to authorities in order to seek justice and to protect other women, but the policies and practices of law enforcement instead re-traumatize survivors while allowing their attackers to walk free.”

The case is Amy Smith, Julie Ann Nitsch and Marina Conner v. City of Austin, Travis County District Attorney Margaret Moore, Rosemary Lehmberg and Travis County, Texas.

Image by IowaPolitics.com

President Donald Trump’s long-time lawyer Michael Cohen has been telling pals he expects to be arrested soon, according to new reports Tuesday.

CNBC reports that a Vanity Fair article also quoted an ex-White House official saying that “Trump should be super worried about Michael Cohen” deciding to cooperate with federal prosecutors against the president.

“If anyone can blow up Trump, it’s him,” the source told Vanity Fair about Cohen, who is under criminal investigation by federal prosecutors in New York City.

Federal Judge Kimba Wood had given attorneys for Cohen and Trump until Monday to raise any objections they had to a special master’s findings on whether seized documents were privileged. She later rejected their request to be allowed to file their objections under seal.

Read the CNBC article.

Courthouse News Service reports that Education Secretary Betsy Devos need not provide full debt relief to more than 60,000 defrauded students, but she must stop collecting on their loans, a federal judge said in court Monday.

A proposed class of borrowers had asked U.S. Magistrate Judge Sallie Kim to revive an Obama-era policy that promised full debt forgiveness to students defrauded by the now-defunct, for profit Corinthian Colleges, according to reporter Nicholas Iovino.

Kim sided with the federal government’s position that returning to the “status quo” means delaying processing claims for debt relief, not going back to the Obama-era policy of forgiving all loan debt. She acknowledged that borrowers will still suffer harm to their credit and interest growing on their loans, even though she has ordered the government to stop collecting.

Read the CNS article.