Politico reports that the Justice Department placed an online job posting for a pair of attorneys to tackle border wall litigation in South Texas — a sign of coming property seizures and other legal controversies that President Donald Trump anticipates if he plows ahead with his signature project.

Politico’s Ted Hesson interviewed Chris Rickerd, the American Civil Liberties Union’s senior policy counsel on border and immigration issues, who said the attorneys likely will deal with eminent domain property seizures and quarrels with landowners over what their land is worth.

The two advertised jobs, based in McAllen and Brownsville, will pay between $53,062 and $138,790, according to a posting to a federal jobs website.

Read the Politico article.

Image by Norbert Aepli

The most critical driver for consumers’ adoption of autonomous vehicles, above technological advancement and adequate investment, is coherent national regulation amid consumer safety concerns. That’s according to a new survey of automotive and technology leaders and state and federal regulators by global law firm Perkins Coie LLP and the Association for Unmanned Vehicle Systems International (AUVSI), the world’s largest nonprofit organization devoted to advancing the unmanned systems and robotics community.

Survey participants indicated they saw a potential to increase convenience and reduce traffic incidents that stem from further development of autonomous vehicle technology. And while survey respondents are focused firmly on consumers’ perceptions regarding safety, no clear majority of respondents agree on which regulatory authority should be responsible for overseeing liability issues amid the current patchwork of federal, state and local rules.

“The emergence of any new technology requires adaptation of existing regulatory regimes,” said William G. Malley, office managing partner for Perkins Coie in Washington, D.C. “The same is true with automated vehicles. Regulators at every level will need to rethink and update existing requirements. In the long run, smart regulation can help to facilitate the development and deployment of this new technology by providing regulatory certainty and helping to reinforce the public’s confidence in the new technology.”

In a release, the firm discussed the survey:

Liability and Consumer Perception Top Challenges

Liability concerns ranked first among the challenges that industry leaders and regulators believe could impede the driverless-car market, just slightly ahead of consumers’ safety perceptions. Respondents also see an urgent need for infrastructure, such as smart signs, traffic lights and merge lanes, to make roads shared by fully autonomous, semi-autonomous and traditional cars safe for everyone.

“You don’t see liability issues go through the courts until you have already had an accident,” said Daniel P. Ridlon, Co-Chair of Perkins Coie’s Unmanned Vehicle Systems Industry group. “Participants in our survey from across the spectrum of industry and regulatory insiders understand this, telling us in a variety of ways that safety and product liability risk are principally important and closely related. They also recognize how both issues can affect consumer sentiment, impacting the industry well beyond the immediate costs related to lawsuits.”

Investment Opportunities Abound

With the market for driverless cars projected to grow to as large as $7 trillion by 2050, respondents see multiple investment opportunities as equally attractive and urgent. Vehicle-to-vehicle and vehicle-to-infrastructure communication technology, 5G technology and Advanced Driver Assistance Systems were seen as the most enticing investments, followed closely by precision mapping and location technology.

“This survey shows a young industry with tremendous potential and understandable growing pains as technology shapes the future of transportation,” said Brian Wynne, President and CEO of AUVSI. “Lawmakers, consumers and regulators alike should embrace the advantages of the future AV era as we work to resolve early-cycle challenges in the years ahead.

Other Key Survey Findings

• A majority – 54 percent – of industry respondents said they would rather see regulation come from the federal level. This reflects the difficulty automakers anticipate in achieving widespread adoption of AVs without a broad and coherent regulatory framework.
• All survey respondents – technology and automotive executives as well as regulators – saw the possibility of reducing vehicle accidents as the most important benefit of AVs. More survey respondents selected reduced traffic accidents as the greatest benefit to consumers than all other options combined.
• Respondents believe the price of investment, behind safety concerns, is one of the top obstacles to the growth of the AV industry with those in technology fields considering investment costs the most worrisome obstacle.

See the complete survey report.

Image by U.S. Customs and Border Protection

Government lawyers have taken the first step in trying to seize private property using the power of eminent domain to build a border wall — a contentious step that could put a lengthy legal wrinkle into President Trump’s plans to build hundreds of miles of wall, reports The Washington Post.

Previous eminent domain attempts along the Texas border have led to more than a decade of court battles, some of which date to George W. Bush’s administration and have yet to be resolved, according to the Post‘s Katie Zezima and Mark Berman. Many landowners are vowing to fight anew.

The reporters quoted Gerald S. Dickinson, an assistant professor of law at the University of Pittsburgh, who said this newest fight will be different because the earlier effort mostly included federal government land.

“If it’s going to be a contiguous wall across the entire southwest border, you’re talking about a massive land seizure of private property,” he said.

Read the Post article.

A new U.S. Postal Service change to the standard terms and conditions that apply to its newly awarded Highway Contract Route (HCR) and Contract Delivery Service (CDS) contracts could be unenforceable, according to David P. Hendel, writing in the Husch Blackwell Contractor’s Perspective blog.

The changes apply to existing CDS contracts as well as newly awarded ones. In an email, the Postal Service asked contractors to sign, without any “alterations or additions,” a contract modification that incorporated the new terms. If the contractor did not so, the Postal Service’s email threatened contract termination, Hendel writes.

He cited problems with the way the changes are presented, including lack of consideration, violation of the implied covenant of good faith and fair dealing, and the legal theory of coercion and duress.

Read the article.

Bloomberg Law reports that companies that turn to the federal courts to resolve fights with rivals and customers may find themselves in limbo if the government shutdown continues beyond next week.

The system can spend money left over from fees and other sources to run through Jan. 11, writes Bloomberg’s Erik Larson.

“After that, nonessential workers at the 94 federal district courts, and at higher courts across the country, may have to stay home even as skeleton crews show up—without pay—to handle matters deemed essential under U.S. law, including many criminal cases,” Larson explains.

Individual courts and judges then will decide how to fulfill those critical functions.

Read the Bloomberg Law article.

Barbara Underwood was an apolitical force in New York, quietly serving as solicitor general before getting an unexpected promotion to become the state’s first female attorney general, writes the Associated Press.

In her eight months in the AG’s role, she sued to put President Donald Trump’s charitable foundation out of business, accusing him of running it as a wing of his private businesses and political campaign. She also used the courts to challenge his administration on a multitude of policy fronts, including opposing its push to add a citizenship question to the 2020 census.

Underwood was appointed attorney general by the state legislature in May after the surprise resignation of Eric Schneiderman, explains AP’s Michael R. Sisak.

Now she’s going back to the solicitor general’s office, but Trump still faces challenges from New York, from the new AG, Letitia James.

Read the AP article.

The ABA Journal reports on a Chicago lawyer who has been accused of belittling his opposing counsel during a deposition and then describing the judge’s reaction to his conduct as “robe rage.”

Charles Andrew Cohn was accused in a complaint before the hearing board of the Illinois attorney disciplinary commission.

During a deposition, the complaint says, Cohn instructed his client not to answer a question, spurring the opposing lawyer to note her disagreement. “Certify the question,” said the opposing lawyer.

“OK,” Cohn replied. “Then certify your own stupidity.”

Cohn doubled-down when he filed a response to the opposing lawyer’s motion to compel. He wrote that — in a hearing on the motion — the judge had himself flown into a rage in the court hearing, describing the situation as a “robe rage incident.”

Read the ABA Journal‘s article.

Given U.S. District Judge Reed O’Connor’s previous decisions halting Obama administration policies, few legal observers were surprised when the conservative judge issued a ruling that declared the Affordable Care Act unconstitutional because of a recent change in federal tax law, reports The Dallas Morning News.

Reporter Kevin Krause quotes Josh Blackman, a law professor at South Texas College of Law in Houston: “Without question, Judge O’Connor has had a fairly high-profile docket, in that he gets a lot of these hot-button issues.”

The Texas attorney general has filed such cases in the Fort Worth and Wichita divisions of the Northern District of Texas because Paxton knows “with a high degree of certainty” they will wind up in O’Connor’s court, Blackman said.

“He has become a go-to judge for Republicans over certain heated national social issues such as health care and transgender rights,” Krause writes.

Read the Morning News article.

By Robert Miller, CPA, CFE
Samet & Company, PC

With the effective date for the new revenue standard fast approaching, many private companies have still not taken important steps towards implementation. Time is running out as the private company implementation date draws closer and some entities may be surprised to learn that the effort to implement the new model is more involved than they might have imagined.

In May 2014 the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2014-09, Revenue from Contracts with Customers, codified as Accounting Standards Codification (ASC) 606. This sweeping new revenue standard changes the entire model for recognizing revenues from arrangements with customers, introducing a new five-step model. The effective date for non-public entities is any fiscal year beginning after December 15, 2018.

Companies must consider and resolve important questions: What systems are in place to capture the new accounting, reporting and disclosure requirements? Are there customer arrangements that have a variable consideration component? Which of the two acceptable methods for calculating transaction price will be most appropriate? How will assessments be made to determine whether to recognize performance obligations at a point in time versus over time? What adoption method will be most appropriate? These are just some of the questions that must be considered by all entities as they implement the new revenue standard.

Auditors are also paying close attention to the implementation of ASC 606, and will themselves be focused on designing procedures to properly test the elements within the new revenue recognition model, in addition to implementation of the standard by their audit clients.

Companies will find that it is generally beneficial to have a preliminary discussion with their auditor regarding the approach in the first year of implementation and beyond. This will almost certainly eliminate certain potential surprises later on. Items that should be discussed include:

• The approach for documenting implementation of ASC 606, including the new five-step model
• The accuracy of any data used, and the approach for compiling that data to support first year reported amounts and disclosures
• The controls and process for ensuring that revenues are being properly captured and recognized under the new model
• Any assumptions by management and the supporting evidence or reasoning behind those assumptions
• Important management representations that are likely to be required

All entities within the scope of ASC 606 will need to develop a plan for implementation and document how they are applying the new standard, regardless of the level of impact. At a minimum, there are expanded disclosure requirements for all entities. Additionally, many entities that have already adopted ASC 606 found that changes to existing systems were necessary in many cases. An initial assessment of the impact of the new standard is critical to gain an understanding of what might be involved to implement.

So what should private companies who have not yet taken action do? Here are some important steps to follow:
• Designate a Champion – Identify and assign an individual to lead the implementation project
• Develop an Implementation Plan – A solid implementation plan should cover several areas, including technical accounting impact, processes and internal controls, IT and data needs, and training, among other areas
• Document – Document the application of the standard to specific types of customer contracts
• Make Changes to Systems – Implement any necessary system changes to ensure information necessary for proper reporting is captured and tracked
• Capture Information Necessary for Implementation – Complete any analyses and calculations needed to properly support amounts and disclosures on the date of adoption

An important first step is to contact your accounting firm. Your audit partner is often management’s best resource. An initial discussion about how the new ASC 606 model is likely to affect your business can be worth its weight in gold. While the clock continues to tick for many companies that have not yet begun the process of evaluating the impact of ASC 606, there is still time to avoid unwanted surprises. The key is to take that first step and reach out to your accounting firm or other advisor who has a solid understanding of the new standard and start the discussion about implementation.

Robert S. Miller, CPA, CFE, partner, Samet & Company, PC, Robertm@samet-cpa.com, 617-751-5395, www.sametcpa.com

The attorneys general of Maryland and the District of Columbia on Tuesday formally demanded financial records from U.S. President Donald Trump’s businesses as part of their lawsuit alleging his dealings with foreign governments violate anti-corruption clauses of the U.S. Constitution, reports Reuters.

The Trump Organization Inc., the president’s privately owned real estate company, and related corporate entities received the subpoenas, according to Reuters reporter Jan Wolfe.

The report quotes George Brown, a professor at Boston College Law School:

The development “brings us closer to judicially enforced discovery about the Trump empire,” said Brown. “It will probably tell us a lot we don’t know because nobody is going to hide that stuff in the face of a subpoena.”

Read the Reuters article.

Labor Secretary Alexander Acosta is out of the running to be President Donald Trump’s attorney general following a Miami Herald report that he oversaw a sweetheart deal for a wealthy financier accused of sexually abusing dozens of underage girls, according to two people close to the president.

Acosta was a federal prosecutor in Florida before going to Washington, the two advisers said.

Herald report Anita Kumar explains:

The investigation, which reported that Acosta, then U.S. attorney, cut a secret deal to allow billionaire Jeffrey Epstein to serve only 13 months in a county jail, is “clearly something” that is being widely circulated among Trump aides, one of the people said. The agreement “essentially shut down an ongoing FBI probe” and granted immunity to “any potential co-conspirators,” according to the story.

Read the Miami Herald article.

Lenovo Group Ltd. can move ahead with an $8.3 million settlement to end a class action that its ad software exposed customer laptops to performance, privacy, and security problems, reports Bloomberg Law.

The federal court’s initial approval of the settlement comes four months after Lenovo and the consumer class filed with the court to end the spyware action. The SuperFish software, which Lenovo began installing in 2014, could access customer Social Security numbers, financial data, and sensitive heath information, the court said.

“Lenovo is set to pay $7.3 million to the settlement fund, and SuperFish will kick in another $1 million from a prior deal with consumers over the spyware issue,” according to Bloomberg’s Daniel R. Stoller.

Read the Bloomberg Law article.

Bloomberg is reporting that an experienced securities lawyer has left Tesla Inc. just as the company needs one under its fraud settlement with U.S. regulators.

Phil Rothenberg, a vice president in Tesla’s legal department who joined the company in 2011, became general counsel at Sonder, a hospitality startup, on Nov. 5, writes Bloomberg reporter Dana Hull.

Before joining Tesla, Rothenberg was an attorney-adviser for the U.S. Securities and Exchange Commission and has extensive securities law experience.

Read the Bloomberg article.

Image by Elvert Barnes

A federal judge temporarily blocked construction of the controversial Keystone XL pipeline, ruling late Thursday that the Trump administration had failed to justify its decision granting a permit for the 1,200-mile long project designed to connect Canada’s oil sands fields with Texas’s Gulf Coast refineries.

The Washington Post characterized the order as a  major defeat for President Trump, who attacked the Obama administration for stopping the project in the face of protests and an environmental impact study.

Post reporters explain that the order “requires the administration to conduct a more complete review of potential adverse impacts related to climate change, cultural resources and endangered species. The court basically ordered a do-over.”

Read the Washington Post article.

Former Pennsylvania Supreme Court justice and Penn State University general counsel Cynthia Baldwin was cleared Friday of any wrongdoing relative to her representation of university officials during the Jerry Sandusky investigation, reports the Pittsburgh Post-Gazette.

She had been accused by the Pennsylvania Office of Disciplinary Counsel of violating several of the Rules of Professional Conduct for attorneys as she represented Penn State, former PSU president Graham Spanier, and two other administrators while she served as university general counsel from 2010 to 2012, writes reporter Paula Reed Ward.

The case included an alleged conflict in representing the interests of the university as well as the three administrators before the investigating grand jury. All three administrators were convicted of child endangerment stemming from a case which resulted in a former university assistant football coach being convicted of sexually abusing children.

Read the Post-Gazette article.

The Justice Department’s Criminal Division has announced updated policies and procedures related to the selection of corporate monitors in federal criminal cases, according to an advisory written by Paul N. Monnin, a partner in Alston &. Bird.

He writes:

The memorandum makes clear that “the Criminal Division should favor the imposition of a monitor only where there is a demonstrated need for, and clear benefit to be derived from, a monitorship relative to the costs and burdens.” In short, a monitor is now disfavored “[w]here a corporation’s compliance program and controls are demonstrated to be effective and appropriately resourced at the time of resolution.”

The article also includes a link to a PDF of the DOJ advisory.

Read the article.

An Ohio company faces a record fine of more than $63 million after allegedly bilking a government aid program out of millions of dollars, some of which went toward funding the lavish lifestyle of the firm’s chief executive, federal regulators said Tuesday.

The Washington Post reports that the the Federal Communications Commission is taking action against American Broadband, a provider of low-income phone service whose agents allegedly created fake or duplicate customer accounts to claim extra federal funding under a program that offers disadvantaged Americans a small monthly discount on phone and Internet service.

Post reporter Brian Fung explains:

American Broadband’s chief executive, Jeffrey Ansted, was also held personally liable for the alleged misconduct Tuesday as the FCC accused him of embezzling aid money and using it to pay for luxury goods such as an $8 million private Cessna jet, a $1.3 million Florida condominium and a $250,000 Ferrari convertible. He also used the funds to buy memberships to yacht and country clubs, the FCC said.

Read the Washington Post article.

Over the past 15 years, Key Risk Insurance Co. has made multiple trips to courts and before the North Carolina Industrial Commission to argue that Mario Seguro-Suarez has been faking his symptoms from an on-the-job injury and that his benefits should be cut off.

The Charlotte Observer reports documents show that the company disregarded years of medical opinions — including several from its own doctors — that Seguro-Suarez was indeed left disabled from his fall at a Southern Fiber factory. The 2003 head-first fall from 18 feet onto a concrete floor left him disabled.

After years of failing to cut off payments to Seguro-Suarez, the insurance company’s private detective “took what a detective would describe as misleading information to Lincolnton police to accuse Seguro-Suarez of insurance fraud. He was arrested, jailed and later indicted,” reporter Michael Gordon writes.

That attempt drew a withering rebuke from a judge, and now Seguro-Suarez is suing for malicious prosecution.

Read the Charlotte Observer article.

The U.S. International Trade Commission has unanimously affirmed that PMP Fermentation Products, Inc. was materially injured by unfairly traded sodium gluconate, gluconic acid, and derivative imports from China.

Barnes & Thornburg represented PMP before the commission.

Inn a release, the firm said the final USITC decision of Oct. 16 followed the U.S. Department of Commerce’s imposition of two sets of tariffs, antidumping and countervailing duties totaling over 408 percent on Chinese sodium gluconate products after it was determined they were subsidized and sold in the U.S. market at less than fair value. These tariffs were imposed to protect PMP from unfair Chinese trade and were in response to a petition prosecuted by Barnes & Thornburg.

“We’re delighted the USITC found that PMP was injured by reason of chronically low-priced Chinese imports underselling U.S. products,” said David Spooner of Barnes & Thornburg. “We expect this decision will help level the playing field for the U.S. manufacturer, PMP.”

The Barnes & Thornburg team representing PMP consisted of Spooner, Christine Sohar Henter and Nicholas Galbraith in the firm’s Washington, D.C., office, and Mari Yamamoto Regnier in Chicago.

A New York appeals court has suspended a Suffolk County lawyer for three months for “inexcusable” criticism about courts hearing two of his cases, reports the ABA Journal.

The court rejected a referee’s recommendation for a public censure and suspended lawyer Gino Giorgini for three months.

An example of his comments to a judge include:

“THIS IS LA LA LAND ON STEROIDS. … I CAN NOT COMPREHEND THE #%%#$^% THAT IS THIS DECISION. … This is so bizzaro land that it is hard to type. What is even more pathetic is the case I cited (citation omitted) has been ignored.”

Read the ABA Journal article.