Jared Kushner, the son-in-law of President-elect Donald J. Trump, has spoken to a lawyer about the possibility of joining the new administration, a move that could violate federal anti-nepotism law and risk legal challenges and political backlash, reports The New York Times.

“Mr. Kushner, 35, the husband of Mr. Trump’s eldest daughter, Ivanka, and an influential adviser to his father-in-law during the presidential campaign, had been planning to return to his private businesses after Election Day,” report Julie Hirschfeld Davis and Maggie Haberman “But on the morning after Mr. Trump won, Mr. Kushner began discussing taking a role in the White House, according to two people briefed on the conversations who requested anonymity to describe Mr. Kushner’s thinking.”

Kushner has considered putting his holdings into a blind trust and working at the White House without pay, but ethics lawyers in both parties have warned that such an arrangement would violate that 1967 law enacted after John F. Kennedy installed his brother, Robert F. Kennedy, as attorney general.

Read The Times article.

Image by Gage Skidmore

Vice president-elect Mike Pence is the latest Washingtonian found at the cross-hairs of an email controversy that could provide a glimpse into how a Trump administration would respond to issues of government transparency, CBS News reports.

CBS News’ Justice Correspondent Paula Reid explains that an email belonging to the former Indiana governor the core of the privacy debate.

The email is the subject of  a public records lawsuit filed by William Groth, a lawyer, in an effort to reveal the contents of the message, which allegedly shows how a group of 17 states planned to legally dismantle President Obama’s executive orders on immigration.

The Indianapolis Star originally reported on the story.

Read the CBS News article.

The U.S. Consumer Financial Protection Bureau, already in legal limbo after an October court decision, could find its powers scaled back by President-elect Donald Trump and a Republican-led Congress, according to members of both political parties, lobbyists and lawyers, Reuters reports.

The agency, created in response to the 2007-09 financial crisis, is a target for some critics for such proposals an attempt to stop companies from blocking customers from class action lawsuits and another one to limit payday lending.

“Many Republicans opposed the agency’s creation. They now say they dislike its structure and believe it oversteps its authority in enforcement,” writes reporter Lisa Lambert.

Read the Reuters article.

Practical Law will present a free 60-minute webinar that will address the recent amendments to the Trademark Rules of Practice and how they affect TTAB practice and procedure.

The event will be Thursday, Nov. 10, 1-2 p.m. EST.

The program will cover:
* critical amendments to TTAB procedure.
* a discussion about the TTAB’s reasoning behind the amended rules.
* the TTAB’s expectations for compliance with the amended rules.
* a Q&A with senior representatives from the TTAB.

Presenters:

Cheryl Butler, Senior Counsel, USPTO Trademark Trial and Appeal Board
Cheryl Butler is Senior Counsel for TTAB Policy and Procedure and the TBMP Editor. Ms. Butler previously served as an Interlocutory Attorney and, prior to that, as a Trademark Examining Attorney. Ms. Butler received her J.D. from George Mason University School of Law and her B.S. in Geosciences from the University of Arizona.

Michael Webster, Interlocutory Attorney, USPTO Trademark Trial and Appeal Board
Michael Webster currently serves as an Interlocutory Attorney at the TTAB. Prior to joining the Board, Mr. Webster was a Trademark Examining Attorney at the USPTO for over fifteen years. He is a graduate of Regent University School of Law and earned his bachelor’s degree in Economics from Indiana University and an M.B.A. from Robert Morris University.

Uli Holubec, Senior Legal Editor, Practical Law Intellectual Property & Technology (Moderator)
Uli Holubec joined Practical Law from Quinn Emanuel Urquhart & Sullivan LLP, where she was a senior associate and handled a variety of trademark and other intellectual property matters. Uli previously was an intellectual property attorney at White & Case LLP and an intellectual property litigation associate at Lieberman & Nowak, LLP.

Michael Chiappetta, Senior Legal Editor, Practical Law Intellectual Property & Technology (Moderator)
Michael Chiappetta joined Practical Law from Fross Zelnick Lehrman & Zissu, PC, where he was counsel focusing on trademark and copyright litigation. Previously, he was an entertainment litigation associate at Troop Meisinger Steuber & Pasich, LLP in Los Angeles.

Register for the event.

Starting next year, the federal government will require that all new or replaced gas lines for hundreds of thousands of apartments and small businesses across the U.S. must be equipped with special valves that can shut off gas automatically when a line is ruptured.

In a post on its website, Androvett Legal Media & Marketing reports that the government’s Oct. 11 announcement expands the mandatory installation of excess flow valves beyond new single-family homes. The valves, priced at around $30, don’t prevent gas lines from being ruptured, such as when a backhoe accidentally hits one. But by limiting the amount of gas that escapes, federal regulators say the valves can prevent a buildup of fuel that can contribute to explosions or fires.

“These simple and inexpensive devices can save dozens of lives and millions of dollars in property damage each year,” says Dallas attorney Tom Carse. “But gas companies, contractors and consumers need to understand how and where the valves should be located. Otherwise the devices will provide very little or no protection.”

In August, Carse filed suit against Atmos Energy on behalf of 20 people who suffered physical and emotional injuries and property damage after a 2015 gas explosion destroyed four homes and heavily damaged nine others in their Waxahachie, Texas, neighborhood.

The lawsuit claims that Dallas-based Atmos Energy was negligent in how it located and installed the excess flow valves during construction of the subdivision. Court documents claim that the explosion occurred when an Atmos gas line was cut by contractors who were working to install underground fiber-optic cable.

A federal appeals court has found the structure of the U.S. Consumer Financial Protection Bureau to be unconstitutional but has left the agency in place to “continue to operate and perform its many duties.”

The court said the way the CFPB is organized violates the Constitution’s separation of powers because it limits the president’s ability to remove the agency’s director, currently Richard Cordray, reports James Peltz for the Los Angeles Times.

The court said the law that now allows the bureau’s director to be removed only “for cause” conflicted with the Constitution, which allows the president to remove executives for any reason.

In his written ruling, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia, rejected the notion of shutting down the CFPB and said that the bureau instead “will continue to operate and perform its many duties,” Peltz reports.

Read the article.

A recent decision by the National Labor Relations Board attempts to define further the boundaries of protected speech under the National Labor Relations Act, reports Seyfarth Shaw in its Employment Law Lookout blog.

Writers Erin Dougherty Foley and Craig B. Simonsen explain that the initial question in Laborers’ International Union of North America and Mantell was whether the union restrained or coerced Frank Mantell in the exercise of a Section 7 right. The union member posted comments on a Facebook page that criticized the Union for allowing a Niagara Falls city councilman, running for mayor, to obtain a journeyman’s book.

The union tried Mantell and fined him $5,000, as well as suspending his membership for 24 months. After an appeal, the International Union directed the local to dismiss charges against Mantell.

An NLRB Administrative Law Judge found that Mantell’s Facebook posts were protected under the National Labor Relations Act.

Read the article.

Patty Crawford, the Baylor University Title IX coordinator who recently resigned from the university, says Baylor set her up to fail from the beginning. Crawford appeared on “CBS This Morning” with her attorney Rogge Dunn of Dallas’ Clouse Dunn LLP to discuss her decision to leave.

On its website, Androvett Legal Media & Marketing reported on the interview:

“Ms. Crawford wants to make sure her story is told so the public knows what is really going on at Baylor and women there can receive the protection they deserve,” says Dunn.

Crawford claims Baylor didn’t allow her to fulfill her responsibilities as Title IX coordinator then retaliated against her for fighting discrimination.

“I continued to work very hard, and the harder I worked the more resistance I received from senior leadership,” Crawford told CBS.

Baylor University hired Crawford in November 2014 to handle Title IX directives and the university’s sexual discrimination policies, including sexual assault complaints. The university faced multiple lawsuits and accusations of ignoring sexual assault claims. Baylor’s Board of Regents hired Philadelphia law firm Pepper Hamilton to conduct an investigation that led to a scathing report blasting the university for failing to adequately respond to the complaints. In response to the report, university president Ken Starr and head football coach Art Briles were removed, and athletic director Ian McCaw resigned. Pepper Hamilton gave the university more than 100 recommended improvements to its Title IX policies, which the university has adopted as mandates.

“Patty is justifiably proud of what she was able to accomplish, but also profoundly troubled by what she views as Baylor’s efforts to impede her ability to fully perform her Title IX responsibilities,” says Dunn.

The enactment of new Federal Aviation Administration (FAA) regulations governing unmanned aircraft systems – or “drones” – has companies and consumers alike dreaming of the stuff of science fiction, but if the new regulations are any indication, the FAA is in no rush to see those dreams become reality, write Sarah L. Bruno, Anthony V. Lupo and Daniel B. Jasnow of Arent Fox LLP.

The new regulations permit use of drones for some commercial purposes, but the FAA declined to clear the way for package delivery by drone, according to the article on the firm’s Behind the Scenes blog.

“Although not a blank check for commercial interests, the FAA’s new rule on commercial drone use likely signals just the beginning of a long regulatory debate over the commercial use of unmanned aircraft, as well as the potential safety and privacy concerns that should, or should not, influence such a debate,” the authors write.

Read the article.

The Securities and Exchange Commission has filed civil fraud charges against the general counsel of Ohio-based chemical company RPM for allegedly mishandling the response to a U.S. Department of Justice investigation, Bloomberg Law reports.

Edward W. Moore, RPM general counsel and chief compliance officer oversaw the company’s response in 2011 when the DOJ started investigating whether its subsidiary, roofing materials company Tremco, had overcharged the government by millions of dollars on certain contracts,according to the SEC complaint.

The SEC accuses Moore of failing to disclose the investigation to RPM’s shareholders, along with his CEO, CFO and internal audit committee and auditors, in a timely manner, writes Gabe Friedman.

Read the article.

Managing third-party vendor relationships has recently become a hot topic for state and federal financial bank regulators, writes Jerry Blanchard of  Bryan Cave LLP.

Some examinations have resulted in regulators imposing settlements and impose civil money penalties on vendors, he reports.

He explains that, “The OCC guidance is generally looked at as the ‘gold standard’ for evaluating issues that need to be addressed in a vendor agreement. That does not mean that every contract a bank signs needs to have every one of those issues addressed or that each one needs to be resolved in favor of the bank. Vendor contracts come in many different shapes and sizes and may affect everything from back office processing, internet delivery systems, use of the ‘cloud’ to the people watering the plants at the branch. vendors will vary from small local operations to multi-national companies.”

Read the article.

In orders issued just six days apart last month, the U.S. Securities and Exchange Commission (SEC) rejected language in severance agreements requiring employees to waive rights to receive additional monetary recovery, particularly awards for providing information to government enforcement agencies, reports Ogletree, Deakins, Nash, Smoak & Stewart.

“The Commission’s actions underscore its continuing scrutiny of any provisions that might impede the flow of information to the government, even where there is no evidence of any such effect. They also drive home that employers must continue to stay abreast of legal developments and modify their policies, practices, and agreements promptly.” write the authors, Margaret H. Campbell and Karen L. Vossler.

The advise employers to review and revise policies, practices, and employment agreements, including confidentiality, severance, separation and similar agreements. “In particular regarding recovery-limiting language, employers should consider carefully whether to use it at all, given that an enforceable waiver cuts off additional recovery from the employer,” they write.

Read the article.

Pillsbury Winthrop Shaw Pittman has posted a client advisory reporting on some of the significant U.S. Supreme Court actions from January through June 2016 related to environmental and administrative law.

The Supreme Court decisions discussed in the advisory involve energy regulation, public lands/statutory interpretation, land regulation/tribal, rico/offenses committed abroad, clean water act/administrative procedure act finality, standing, agency interpretation/chevron deference, clean air act/epa clean power plan, mercury air toxics standard.

The court declined to hear two cases involving CWA/American Farm Bureau Federation, and Groundwater Contamination/Exxon Mobil.

The advisory also covers two cases of interest in the upcoming term, involving regulatory takings and  presidential appointments.

Read the article.

The operator of 12 hospitals and more than 200 other treatment centers in Chicago and central Illinois has agreed to the largest settlement to date with the Office for Civil Rights for multiple potential violations of the Health Insurance Portability and Accountability Act, reports Kelly A. Leahy of Shumaker, Loop & Kendrick.

The agreement will cost Advocate Health Care Network $5.5 million and force Advocate to adopt a multi-year corrective action plan that stemmed from three incidents reported to OCR in 2013.  The breaches involved Advocate’s medical group subsidiary, Advocate Medical Group, which employs more than 1,000 physicians. The incidents that cost Advocate involved data breaches involving unencrypted devices and unauthorized access to a network.

In the article, Leahy offers some suggestions for what covered entities and business associates can do to prevent costly fines and burdensome settlements.

Read the article.

The U.S. watchdog for consumer finances unveiled on Thursday a proposal to toughen regulation of the multibillion-dollar debt collection industry, with a focus on keeping agencies from pushing people to pay debts they do not owe, informing borrowers of their rights and cutting down on calls to debtors, according to a Reuters report.

Industry advocates expressed concerns about the costs of complying with the suggested requirements, which they warned could be passed on to borrowers or force some of the thousands of small collection firms to shutter. “Those pushing for consumer rights said the proposal left major holes in borrower protections and did not go far enough,” wrote Reuters’ Lisa Lambert.

She also reported that the proposal covers third-party collectors and debt-buyers. The CFPB will address first-party collectors and creditors, such as banks with their own collection departments, in the future.

Read the article.

Although Theranos’s history — which includes several administrative penalties for the troubled blood-testing company — has received an outsize amount of media attention, its experience with regulatory agencies highlights several important issues for start-up and emerging health care entities, writes Robert E. Wanerman in Epstein Becker & Green‘s Health Law Advisor blog.

He discusses four major questions raised in this type of case, with these headings: What Do Regulators Want?, What Do Health Care Providers and Payors Want?, Who Is Investing in the Venture?, and Who’s on Board?

On the first point, he wrote that “even in an environment that encourages innovation, health care organizations must understand the scope of regulatory oversight at the federal and state levels, and the range of remedies available to regulators for noncompliance. Every organization should also have a protocol in place for responding to regulatory inquiries or inspections.”

Read the article.

Civil fines across federal agencies have recently been increased dramatically under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (Sec. 701 of Public Law 114-74), with some more than doubling, according to an article published by Wilmer Cutler Pickering Hale and Dorr LLP.

“Companies violating the Hart-Scott-Rodino (HSR) Improvements Act, the Securities Exchange Act, or the Occupational Safety and Health Act (OSHA), among others, could soon face civil monetary penalties that are up to 150% higher than the existing levels. According to the Congressional Budget Office, the 2015 Act would increase the federal government’s revenue by $1.3 billion over the next ten years,” the article says.

The authors provide a chart listing some of the notable increases in federal civil fines under the 2015 Act.

Read the article.

Connor Raso of the Securities and Exchange Commission has published a 67-page article that analyzes when and why administrative agencies avoid rulemaking procedural requirements such as the Administrative Procedure Act’s notice-and-comment process.

The summary of the rticle states that “original empirical analysis shows that agencies invoke statutory exemptions to avoid such rulemaking procedures more frequently as the threat of a lawsuit challenging that avoidance declines. In situations with a low threat of suit, agencies have avoided rulemaking procedures for more than 90 percent of rules. Such avoidance falls when the threat of suit increases. But even when litigation ensues, courts do not consistently require agencies to comply with rulemaking procedures. This spotty judicial enforcement, along with significant agency avoidance, casts doubt on the claim that rulemaking procedures have significantly burdened the rulemaking process.”

But agency avoidance suggests that rulemaking procedures do less than commonly thought to promote public deliberation in the rulemaking process, foster agency expertise, guard against agency arbitrariness, and make agencies accountable to Congress and to the public. “This suggests that agency avoidance of rulemaking procedures has some benefits, but also many costs,” Raso writes.

Read the white paper.