The case of Donald Zarda, a skydiver who claimed his employer, Altitude, violated Title VII when it fired him after finding out he was gay, illustrates how the U.S. Department of Justice and the Equal Opportunity Commission can sometimes operate at cross purposes in litigation.

According to a Reuters report, the EEOC, an independent federal agency, is representing Zarda’s estate against the former employer. At the same time, the DOJ has filed its own amicus brief, explicitly disavowing the EEOC’s stance.

Alison Frankel writes that the brief “argued primarily that the EEOC and the 7th Circuit, which adopted the agency’s reasoning in its en banc opinion last April in Hively v. Ivy Tech Community College, disregarded the actual language of the statute and misread Supreme Court precedent on interpreting that language. According to the Justice Department, it’s up to Congress, not the courts, to legislate protection for gay and lesbian employees, and Congress has steadfastly refused to do so.”

Read the Reuters article.

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A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

The New York Times reports that the 56-page memo, locked in the National Archives for nearly two decades and obtained by the newspaper under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

Reporter Charlie Savage writes: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

Read the NYT article.

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Just days after approving a controversial rule that will make it much easier for Americans to sue their banks, the U.S.’s top consumer watchdog is already fighting back against attempts to prevent the regulation from taking effect, reports Bloomberg.

Bloomberg’s Elizabeth Dexheimer reports that Consumer Financial Protection Bureau Director Richard Cordray said there is “no basis” to claims that his agency’s action will put the nation’s financial system at risk. Cordray was responding to concerns raised by acting Comptroller of the Currency Keith Noreika, a regulator appointed by the Trump administration who had a long legal career representing banks.

Under the new rule, financial firms are restricted from forcing consumers to resolve their disputes through arbitration, a practice that has been used by the industry for years to keep grievances tied to payday loans, credit cards and other products out of courts.

Read the Bloomberg article.

The health care bill the U.S. Senate is fine-tuning could have profound effects on elderly people who rely on nursing home care, says Houston-area elder law attorney Kelley Bentley of Roberts Markel Weinberg Butler Hailey PC. Bentley is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

“The bill proposes large cuts to federal Medicaid support over several years with reliance on states to decide funding in the future. In Texas, nearly 70 percent of nursing home residents are enrolled in Medicaid.

“While many people may assume the program pays solely for health care for the poor, it also fills a gap for long-term care, including at-home and nursing home care for the elderly population. The cost of long-term care in the U.S. can be substantial and a serious drain on an individual’s assets. That includes middle-class retirees who sometimes have managed to save substantial assets. Some people simply outlive their savings for long-term care.

“Older people should take a hard look at their savings long before any health problems. Consider a long-term care savings plan or long-term care insurance and also talk to a lawyer about how to organize and protect assets. In Texas, long-term care Medicaid programs can provide a wide range of care, including nursing home, assisted living and at-home programs. The secret is to start to plan early, before the need arises as there are more options available for the preservation of assets. The goal is not necessarily to preserve assets for future generations, but to ensure that an individual (or married couple) has sufficient assets to cover any future long-term care needs.”

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The Department of Energy has published a request for information soliciting guidance on potential regulations that should be modified or repealed to reduce burdens and costs, reports K&L Gates.

“This is part of a government-wide initiative to overhaul the federal government’s regulatory regime, set in motion with an executive order signed by President Trump just after his inauguration. This RFI also comes after President Trump signed an executive order, ‘Promoting Energy Independence and Economic Growth,’ which seeks to review all regulatory actions that hamper the domestic production of fossil fuels and nuclear energy,” according to the article.

Authors Tim L. Peckinpaugh, David L. Wochner, Kathleen L. Nicholas and David L. Benson write that the RFI sets a July 14, 2017, deadline for public comment.

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Documents released this week reveal that lawyers, lobbyists and industry executives who can now shape policies benefiting their former clients and companies have been allowed to work in the Trump administration, even with the president’s vow to “drain the swamp” of influence peddling, reports The New York Times.

The report by Eric Lipton and Danielle Ivory begins with an example:

Lance Leggitt helped collect $400,000 in fees last year while working as a lobbyist to try to influence Medicare policy at the Department of Health and Human Services — an agency where he now serves as chief of staff.

Under an executive order signed by President Trump in January, lobbyists were banned from that kind of government work. But Mr. Leggitt is among a half dozen officials across the federal government who have been granted special waivers to disregard ethics rules, according to a new set of documents released Wednesday.

Read the NYT article.

Politico reports that the Russia investigations are bad news for President Donald Trump, but they’re a blessing for white-collar lawyers and crisis consultants whose careers are primed to take off as the criminal probes unfold.

“More than a dozen attorneys and crisis communications specialists have already started working for Trump associates touched by the unfolding Russia scandal, according to a POLITICO tally. People close to the probes say that number is expected only to grow as more than 20 other senior campaign aides and White House officials begin receiving subpoenas, grand jury summonses and other requests from special counsel Robert Mueller as well as congressional committees,” write Darren Samuelsohn and Andrew Restuccia.

The authors quote Harlan Loeb, a crisis management expert who worked for Enron and other corporate clients and now chairs Edelman’s crisis and risk practice: “If you’re doing it right, it’s a career maker. This is the material that great books are made of.”

Read the Politico article.

Health records software developer eClinicalWorks has agreed to pay a $155 million to the federal government for civil fraud and kickback charges, according to HIT Consultant.

“Both the government and the whistleblower alleged that eClinicalWorks falsely represented to customers that its EHR [electronic health record] system complied with Meaningful Use requirements,” the publication says. “The settlement marks the first time an EHR vendor is being charged for the truthfulness and accuracy of representations made when seeking government certification of its EHR system and the government applying the federal Anti-Kickback Statute (AKS) law to the promotion and sale of EHR systems.”

The whistleblower alleged the company modified its software to pass testing, without being fully functional. The lawsuit listed several allegations against the company, such as kickbacks for recommendations, and failure to test its software adequately before releasing it.

Read the HIT Consultant article.

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The well-established revolving door from big law to a GOP Labor Department may need extra grease under President Donald Trump, writes Ben Penn for Bloomberg Law.

The search for political appointees to the department appears to be impeded by a shrinking pool of private attorneys willing to incur a lifelong Trump association. And the search isn’t helped by the steep pay cut, grueling confirmation process, and a post-work lobbying ban.

Penn writes that the shortage of lawyers in the DOL could make it difficult for the department to get to work on undoing large parts of the Obama administration’s labor agenda.

Read the Bloomberg article.

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President Donald J. Trump has nominated Paul Compton, a partner in Bradley Arant Boult Cummings LLP’s Birmingham office, to serve as General Counsel of the U.S. Department of Housing and Urban Development (HUD). The appointment is subject to Senate confirmation.

Compton currently serves as leader of the firm’s Affordable Housing and Community Development practice.

“The firm congratulates Paul Compton on his expected nomination by the President to serve as the chief legal officer of the U.S. Department of Housing and Urban Development and counsel to its Secretary, Dr. Ben Carson,” said Bradley Chairman of the Board and Managing Partner Beau Grenier. “We are tremendously proud of Paul, whose knowledge and experience in the areas of affordable housing, community development, and banking and financial services have earned him an outstanding reputation among his peers and clients.”

The Office of General Counsel (OGC) of HUD provides legal opinions, advice and services with respect to all departmental programs and activities. The General Counsel also leads the department’s efforts to enforce the Fair Housing Act and other civil rights and programmatic requirements. The OGC plays a vital role in helping HUD accomplish its mission of assuring decent and affordable housing, enabling all Americans to achieve homeownership, providing resources for communities to build strong neighborhoods, preventing homelessness, and enforcing fair housing laws.

In addition to his various Bradley practice leadership roles, Compton is a member of the firm’s Banking & Financial Services group and is Chair of the firm’s Finance Committee. He has experience in innovative commercial financing transactions, particularly those involving tax credits (federal and state Low-Income Housing Tax Credit, historic, state industrial incentive, new markets, and work opportunity) and structured finance, and in the formation and sale of regulated financial institutions (banks, insurance companies and agencies, consumer finance companies, broker/dealers and community development entities).

Compton serves as counsel for the Alabama Bankers Association, Inc., counsel of record for the Alabama Consumer Finance Association, and as general counsel for the Alabama Affordable Housing Association. He earned his J.D. from the University of Virginia School of Law and his Bachelor of Science (summa cum laude) from the University of Alabama. He also attended the London School of Economics and Political Science. He is a Truman Scholar.

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A federal judge in Seattle has temporarily blocked a Justice Department order that called on a local immigrant-rights organization to stop some of its legal work. His ruling also applies to similar groups around the country. according to The Seattle Times.

The nonprofit Northwest Immigrant Rights Project brought the lawsuit that resulted in the ruling by U.S. District Judge Richard Jones.

“In a letter last month, the Justice Department told the group it must ‘cease and desist’ providing certain legal assistance to immigrants unless it undertakes full representation of them in court,” writes reporter Nina Shapiro.

The ruling also barred the Justice Department from sending similar orders to any other organizations around the nation.

Read the Seattle Times article.

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The Trump administration’s losing streak in courts around the nation has in large part been a product of precedents established by conservative judges in the Obama era, reports The New York Times.

“Republican officials had great success under President Barack Obama in persuading judges to block or complicate his efforts to expand health care, shield immigrants from deportation and protect transgender students,” writes reporter Adam Liptak. “Now Democratic officials are using the principles established in those cases to frustrate President Trump’s efforts to limit travel from predominantly Muslim countries and to punish so-called sanctuary cities.”

Liptak quotes South Texas College of Law professor Josh Blackman with a warning for Democratic officials: “Whatever California can do to resist immigration law, Texas can do to resist environmental laws.”

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Reuters tells the story of how two analysts who liked to swap notes on numbers they thought looked odd took a fateful step and tipped off U.S. regulators about a company that one of them had watched for months.

The story is illustrated with the case of Orthofix International NV, a Texas-based medical device maker that kept hitting ambitious earnings targets and many analysts had “buy” recommendations for the stock.

One of the analysts had a feeling about the company, noticing its earnings reports showed it was taking longer than usual for the company to get paid by wholesale customers, invoices were piling up and executives struggled to offer a convincing explanation, saying logistical problems at foreign offices were partly to blame.

Reporter Sarah N. Lynch tells how that analyst spent months tracking quarterly reports and earning calls, using algorithms to compare Orthofix’s ratios and patterns of sales and inventory turnover with financial data of its peers.

“By entering the SEC whistleblower program the duo showed how outsiders with analytical skills and tools and time to spare can accomplish what is typically done by those with inside access to confidential information,” Lynch writes.

The two could win as much as $2.5 million for their whistleblowing.

Read the Reuters article.

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For the past two years, there’s been a new player in the world of employee whistleblower enforcement, writes Evan Gibbs for Above the Law.

In 2015, the Securities and Exchange Commission issued its first administrative order finding that a company violated SEC rules based on language in an employment agreement.

“In the first and only case of 2017, the SEC fined another company $340,000 because its standard severance agreement previously contained a provision in which employees waived recovery of incentive payments from the SEC,” Gibbs writes. “The company received the six-figure fine despite having removed the offending provision on its own in March 2016 as part of the company’s regular review process prior to being contacted by the SEC.third parties unless compelled to do so by law and after notice to the company.”

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The Alabama Supreme Court has upheld the decision that removed Roy Moore from his position as chief justice, reports AL.com.

Moore was suspended over his administrative order against the issuance of marriage licenses to same-sex couples.

Reporter Kent Faulk writes that Moore can’t appeal the ruling to the federal courts because there are no federal issues at stake.

“Moore also said he would reveal early next week for any plans he may have to run for the U.S. Senate seat now held by former Alabama Attorney General Luther Strange, who was appointed to replace Jeff Sessions who is now U.S. Attorney General,” according to Faulk.

Read the AL.com article.

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A review of 10 trademark databases shows that President Trump’s enterprise has 157 trademark applications pending in 36 countries, reports The New York Times.

This business enterprise poses legal and moral perils to the president, even though that business now is run by his two sons. A team of constitutional lawyers and ethics lawyers brought litigation arguing that the Constitution prohibits the president from accepting any economic benefit, including trademark approvals, from foreign governments, write Sharon LaFraniere and Danny Hakim.

“The legal question is whether new foreign trademark registrations and other transactions between Mr. Trump’s businesses and foreign governments violate the emoluments clause of the Constitution,” according to the Times. “The clause prohibits federal officials from accepting ‘any present, emolument, office or title of any kind whatever from any king, prince or foreign state.’”

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In an interview with The New York Times, Preet Bharara, the former U.S. attorney in Manhattan, remains mystified by the circumstances of his firing by the Trump administration, saying he had never been told why President Trump changed his mind about wanting him to stay on.

He characterized his ouster as an example of the chaos that has defined some of the administration’s decisions: “a direct example of the kind of uncertain helter-skelter incompetence, when it comes to personnel decisions and executive actions, that was in people’s minds when this out-of-the-blue call for everyone’s resignation letter came.”

Bharara also disclosed that Trump, after having asked him to remain in his post, telephoned him three times, raising concern that such calls could run afoul of strict Justice Department protocols, write Benjamin Weiser and William K. Rashbaum.

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A provision of the “energy independence” executive order signed by President Trump is so broad in scope that legal experts say it could affect numerous government responsibilities far beyond those that deal directly with energy and climate change, according to a post by Climate Central.

Under the order, federal agencies must review all of their actions that have the potential to “burden” both the development and use of domestic fossil fuels and nuclear energy in the U.S., writes Bobby Magill.

“For example, it could affect the speed with which the government permits oil and gas drilling, how much information about energy development the government provides to the public, and other decisions federal employees make on a daily basis,” Magill explains. “It may also affect the willingness of the government to allow wind and solar development to go forward because more use of renewable energy could lead to less use of fossil fuels.”

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Senate Democratic opposition to Donald Trump’s Supreme Court nominee swelled Friday as Democrats neared the numbers needed to block Judge Neil Gorsuch with a filibuster, reports the Associated Press.

“Senate Minority Leader Chuck Schumer of New York warned Republicans against changing Senate rules to confirm Gorsuch anyway — a rules change that could prove momentous for the Senate and would allow all future Supreme Court nominees to get on the court regardless of opposition from the minority party,” write Mary Clare Jalonick and Erica Werner.

Democrats worry that Senate Majority Leader Mitch McConnell could respond to a Democratic filibuster by changing Senate rules to allow  a simple majority to determine the nomination, rather than requiring a minimum of 60 votes.

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The U.S. District Court for the District of Columbia recently dismissed plaintiffs’ complaint that the statutory requirement that the Federal Regulatory Energy Commission recover its annual operating costs directly from the entities it regulates results in perceived or actual bias against plaintiffs who contest applications for needed certificates from FERC.

Anthony B. Cavender and Amy Pierce wrote about the case in Pillsbury Winthrop Shaw Pittman LLP’s Gavel2Gavel blog.

The case is Delaware Riverkeeper Network, et al., v. FERC.

“Because of this bias, the plaintiff asked the District Court either to declare FERC’s reimbursement mechanism to be unconstitutional or declare its power of eminent domain or authority to preempt state and local laws to be unconstitutional,” the authors explain. “Holding that the plaintiffs have failed to state a claim because allegations of actual bias cannot create structural bias where the court determines there is none, and the law does not on its face create an unconstitutional funding mechanism, the District Court granted FERC’s motion to dismiss.”

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