Letitia James
Image by Thomas Good

Roughly 40 state attorneys general plan to take part in a New York-led antitrust investigation of Facebook, reflecting a broadening belief among the country’s top Democrats and Republicans that the tech giant may be undermining its social-networking rivals, reports The Washington Post.

New York Attorney General Letitia James first announced a wide-ranging probe with seven other states and the District of Columbia to explore whether, in James’s words at the time, Facebook has “endangered consumer data, reduced the quality of consumers’ choices, or increased the price of advertising,” writes the Post‘s Tony Romm.

Sources told the newspaper that New York continues to solicit support from other states, meaning the number could grow before it is formally announced.

Read the Post article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Patent Prosecution Options at the USPTO: Tried-and-True or New to You,” featuring Fitch Even attorneys Alan E. Schiavelli and George N. Dandalides.

The event will be on Wednesday, Oct. 23, 2019, at 9 am PDT / 10 am MDT / 11 am CDT / 12 noon EDT. It will also be available as an on-demand webinar after the presentation.

The firm said the USPTO is constantly striving to reduce average pendency and achieve compact prosecution office-wide, but that’s of little consequence if your patent application is bogged down in prosecution with the examiner—or if business reasons dictate a patent be obtained more quickly than usual. Fortunately, the USPTO offers several programs and initiatives to applicants designed to advance the examination process.

During this webinar, presenters will provide background information and helpful advice on these prosecution tactics and publication strategies:

• Track One prioritized examination
• Petitions to make special and accelerated examination
• First Action Interview Pilot Program
• Patent Prosecution Highway (PPH)
• Early publication and non-publication
• After Final Consideration Pilot 2.0 (AFCP 2.0)
• Pre-Appeal Brief Conference Pilot Program

Register for the webinar.

The Indiana Department of Environmental Protection is seeking the dismissal of a township’s challenge to a permit to a shale gas wastewater injection well to operate in the community, reports the Pittsburgh Post-Gazette.

“The long-running legal battle, which is being watched statewide for its potentially precedent-setting outcome, pits [Grant Township], which wants to protect water wells from contamination, against the DEP, which approved a permit for the injection well in 2014 and again in 2017,” explains the Post-Gazette‘s Don Hopey.

The town passed a community bill of rights ordinance in 2014 in an attempt to block Pennsylvania General Energy Co. from converting one of its former shale gas production wells to a 7,500-foot deep injection well for disposal of fracking waste.

Read the Post-Gazette article.

Rudy Giuliani has tapped Miami-based veteran attorney Jon A. Sale, of counsel with Nelson Mullins, to represent him before the congressional inquiry into whether President Donald Trump improperly pressured Ukraine’s president for a political favor.

The Miami Herald reports that “Sale is also no stranger to navigating the ways of Washington, having served as an assistant special Watergate prosecutor looking into the secret White House tapes of President Richard M. Nixon. Sale worked under two special prosecutors — Archibald Cox and Leon Jaworski.”

Giuliani and Sale are former classmates at New York University law school.

Read the Miami Herald article.

Goldman Sachs and Dell Technologies will pay a combination of almost $17 million to settle separate Labor Department allegations of pay bias based on gender and race, reports Bloomberg Law.

“Both Goldman Sachs and Dell-EMC agreed to nationwide ‘early resolution’ agreements, whereby their compliance will be routinely monitored in exchange for five years free of random OFCCP audits,” explains Bloomberg’s Paige Smith. “These are at least the fourth and fifth ‘early resolution’ agreements with the agency, joining those with Bank of America, Performance Food Group, Cintas Corp., and US Foods Inc. ”

Read the Bloomberg Law article.

Bloomberg Law reports that the 10th Circuit Judicial Council publicly reprimanded District Court Judge Carlos Murguia for sexual harassment, the judiciary’s most severe available sanction.

The council found that the judge — appointed by Bill Clinton to the court in Kansas — “gave preferential treatment and unwanted attention to female employees of the Judiciary in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night.”

Murguia apologized for his conduct, but the council found his apologies “more tied to his regret that his actions were brought to light than an awareness of, and regret for, the harm he caused ….”

Read the Bloomberg Law article.

Over the past few decades, Republican and Democratic administrations have increasingly leaned on deferred prosecution agreements in corporate criminal cases and non-prosecution agreements to settle allegations against corporations, according to a Washington Post report.

For example, JPMorgan Chase, the country’s largest bank, has repeatedly resolved federal investigations over the last eight years by striking a deal: It wouldn’t be prosecuted as long as it stayed out of trouble, writes the Post‘s Renae Merle.

“This comes at a time when the Trump administration is prosecuting fewer white-collar crimes,” she explains. “The number of cases brought against corporations fell to 99 last year, compared with 181 in 2015, according to the U.S. Sentencing Commission. Most were against small companies, 62.9 percent employed fewer than 50 workers, the commission reported.”

Read the Post article.

Taxpayers lose billions each year in royalties generated from oil and gas leases on public lands while fossil fuel developers reap profits at their expense, but Democrats have pushed legislation that would overhaul leasing laws that have not been updated in a century, reports Courthouse News Service.

For the eighth consecutive year, the Government Accountability Office placed the Interior Department’s oil and gas leasing program on its high risk list of federal programs mottled with waste, fraud and abuse.

That report found that “Interior’s methods to determine and collect royalties hasn’t been updated since 1920, and with the coal, gas and oil industry in far different shape today than it was a century ago, the time to develop a system that meets energy needs while delivering fair market returns is long overdue,” writes Courthouse News’ Brandi Buchman.

Read the Courthouse News article.

Dallas lawyer Steve Stodghill, a partner in Winston & Strawn LLP, has been appointed to the Texas Public Safety Commission by Governor Greg Abbott for a term running through Jan. 1, 2024.

The Commission oversees the Texas Department of Public Safety (TxDPS), the agency responsible for statewide planning and policy formation regarding the enforcement of criminal, traffic, and safety laws; crime prevention; and law and public safety education. With an annual budget of $1.2 billion, TxDPS employs 11,000 across 13 divisions including the Texas Rangers, Texas Highway Patrol, Driver License, Regulatory Licensing, and Intelligence and Counterterrorism. In addition, the Commission interfaces with the Federal Bureau of Investigation, Central Intelligence Agency, National Security Agency, Department of Defense, and similar federal agencies, while advising the Governor in responding to state emergencies such as natural disasters, mass shootings, insurrections, invasions, and acts of terrorism.

Stodghill is the latest attorney to be appointed to the commission. Recent members have included former Dallas County District Attorney Faith Johnson, Judge Ada Brown of the U.S. District Court for the Northern District of Texas, Judge Jason Pulliam of the U.S. District Court for the Western District of Texas, and former Texas secretaries of state John Steen and Carlos Cascos.

One of the founding partners of Winston’s Dallas office, Steve has represented numerous high-profile clients, ranging from prominent billionaires to major corporations, across am array of complex commercial litigation areas.

“Steve is one of the most accomplished and sought-after commercial litigators in the country,” said Tom Melsheimer, Winston’s Dallas Managing Partner. “This appointment is a natural evolution of his work and demonstrates his commitment to helping the community and the State of Texas.”

In addition to his legal practice, Stodghill is chairman of the American Film Institute National Council and board member of The University of Texas Harry Ransom Center, UT College of Liberal Arts Advisory Board, and the UT System Chancellor’s Council Executive Committee. Additionally, he is a member of the Southern Methodist University Meadows School of the Arts Executive Board. He also is an Eagle Scout as well as a former Circle Ten Council of the Boy Scouts of America Executive Committee member.

“It’s a tremendous honor just to be considered for something such as this and to be placed in a position where you can serve the people of your state,” Steve said.

Stodghill received a bachelor of arts from UT-Austin and a J.D. from the University of Texas School of Law.

Employers may not be aware that the National Labor Relations Board has issued an opinion holding that arbitration agreements that could be “reasonably construed” to prohibit an employee from filing unfair labor practice charges with the board are invalid under the National Labor Relations Act, warns a post from Foley & Lardner.

“What is significant about this unanimous employee-friendly decision is that even if the language in your arbitration agreement does not expressly prohibit the filing of an NLRB charge (or accessing the Board or its processes), you may not be safe from a determination that your agreement is invalid,” explains the author, Cristina Portela Solomon.

She lists three steps employers should take if they use arbitration agreements.

Read the article.

A group of 23 states on Friday sued to block the Trump administration from undoing California’s authority to set strict car pollution rules, one of the biggest U.S. battles over climate change, reports Reuters.

“The legal fight pits a Democratic majority state that has become the U.S. environmental champion against a Republican president who wants to boost the economy by cutting regulation,” writes Reuters’ David Shepardson. “The debate already is playing out ahead of the presidential election next year.”

Friday’s lawsuit takes aim at a U.S. Transportation Department conclusion that federal law preempts state and local regulation of vehicle fuel economy, including California’s rules.

Read the Reuters article.

A New York attorney who used a client’s money for her personal expenses was disbarred by the state’s highest court, reports Bloomberg Law.

A client paid Melissa Bernier $1,375 to pay a fine in a burglary case.

Bloomberg’s Melissa Heelan Stanzione writes that, instead of paying the fine or depositing the amount into her escrow account, Bernier used $827 to pay for business and personal expenses unrelated to his case, the court said.

Read the Bloomberg Law article.

The New York Times reports that the White House on Tuesday fired John Mitnick, the general counsel for the Department of Homeland Security, after months of shake-up at an agency responsible for carrying out President Trump’s immigration agenda.

A Trump administration official said Tuesday evening that Chad Mizelle, an associate counsel to the president, would replace Mitnick. But a Department of Homeland Security official said later that Joseph B. Maher, the department’s principal deputy general counsel, would be taking over, write the times‘ Zolan Kanno-Youngs and Maggie Haberman.

Mitnick was the fifth general counsel for the Department of Homeland Security.

Read the NY Times report.

Photo by Kārlis Dambrāns

Microsoft President and Chief Legal Officer Brad Smith says the way the U.S. government is treating Huawei is un-American, reports Bloomberg Businessweek.

He said China’s leading maker of networking equipment and mobile phones should be allowed to buy U.S. technology, including software from his company, according to Businessweek’s Dina Bass.

“U.S. President Donald Trump has said Huawei, run by a former Chinese army technologist, is a national security threat, and his Department of Commerce has added the company to an export blacklist scheduled to take full effect in November,” Bass writes.

Read the Bloomberg Businessweek article.

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.

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.

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.