In an article for Bloomberg Big Law Business, Wiley Rein LLP’s Kirk Nahra details the top-10 U.S. and international developments in 2018 that companies must be aware of to ensure an effective information security program.

Nahra writes that “it is clear that privacy and data security has moved from an issue impacting primarily healthcare and financial services companies, to an issue that affects, in large and small ways, virtually every company across the globe. These issues affect litigation, mergers and acquisitions, product development, research, corporate strategy, business partnerships, and, in some way most activities of most companies.”

His article covers the European Union’s new General Data Protection Regulation, Privacy Shield and other data transfer obligations, non-EU data transfer programs, cybersecurity, breach litigation, FTC and Office for Civil Rights enforcement, and the role of the states.

Read the Bloomberg article.

The Hill reports that the National Labor Relations Board is delivering a flurry of wins to businesses now that it has a Republican majority under President Trump.

In recent days, the independent board tasked with enforcing fair labor practices and collective bargaining rights overruled three Obama-era rules in a series of 3-2 rulings, writes reporter Lydia Wheeler.

One of the rules, which employers had opposed for years, was a controversial NLRB decision that changed the definition of a joint-employer. That rule could have put employers on the hook for labor law violations committed by their subcontractors in some cases.

Read The Hill article.

Politico is reporting that morale among many of the Agriculture Department’s legal staff has plummeted since Stephen Vaden, the Trump administration’s nominee to be USDA General Counsel, assumed leadership in March, say several agency attorneys from across the country.

“Vaden, who arrived at USDA in January as part of President Donald Trump’s beachhead team and was appointed principal deputy general counsel two months later, is enforcing workplace changes that have provoked unusually bitter labor negotiations, say the attorneys,” reports Catherine Boudreau. “He also has come under scrutiny for his past work defending state voter ID laws that critics say are discriminatory.

“There is a fair amount of fear right now,” said Jeffrey Streiffer, senior counsel at the USDA OGC’s regional office in San Francisco.

Read the Politico article.

The Washington Post reports that federal regulators unveiled a plan Tuesday that would give Internet providers broad powers to determine what websites and online services their customers can see and use, and at what cost.

Next month the Federal Communications Commission will vote on the proposal that could reshape the entire digital ecosystem: the undoing of the government’s net neutrality rules.

Reporter Brian Fung explains that Tuesday’s move hands a win to broadband companies such as AT&T, Verizon and Comcast.

“The FCC’s proposal is largely opposed by Internet companies such as Google, which said Tuesday that the net neutrality rules help protect an open Internet,” Fung writes

Read the Post‘s report.

“There is no credible evidence” that AT&T’s proposed $85.4 billion acquisition of media powerhouse Time Warner poses any threat to industry competition or consumer prices, AT&T attorney Dan Petrocelli told CNBC on Tuesday.

Petrocelli is the lead outside counsel for AT&T in the case, in which the Department of Justice has sued to block the deal.

He cited increasing competition for television and video distribution and content as a reason not to block the proposed merger, writes reporter Matthew J. Belvedere.

“Earlier this month, reports circulated that the government had demanded AT&T sell its DirectTV unit or Time Warner’s Turner Broadcasting, operator of the CNN, as a condition of approval,” Belvedere explains. “However, the government had pushed back at those reports, and AT&T said it had no intention of selling CNN.”

Read the CNBC report.

While the Federal Energy Regulatory Commission continues its investigation of the notice of proposed rulemaking on deployment of energy storage, state mandates and incentives will likely unfold ahead of federal rules moving toward a more organized market for energy storage, according to a post by Morgan, Lewis & Bockius.

Levi McAllister and Brooke E. McGlinn write:

Read the article.

Jay Clayton

In its latest fiscal year, Wall Street’s top regulator sought the smallest amount of penalties since 2013, a drop that took place as the agency went months without permanent leadership and could show a softer approach to policing wrongdoing, Bloomberg reports.

“The U.S. Securities and Exchange Commission tried to obtain $3.4 billion in fines and disgorgement from companies and individuals during the 12 months ended in September, according to data collected by Urska Velikonja, a Georgetown University law professor,” write reporters Matt Robinson and Benjamin Bain. “The SEC filed 612 enforcement cases, also the fewest in four years, Velikonja’s research shows.”

Velikonja points out that since Jay Clayton — the former Wall Street deals lawyer appointed by Trump — took over as SEC chair in May, the agency has pursued just two sanctions against large financial firms. But in the same period a year earlier, more than a dozen big financial companies faced SEC sanctions.

Read the Bloomberg article.

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AT&T and the Justice Department could be on their way to a major court battle, which one analyst believes the company stands a strong chance of winning, CNBC reports.

AT&T’s wants to acquire Time Warner, but the government wants the company first to sell Turner Broadcasting, which includes CNN, or sell DirecTV. The company has made it clear that it has no intention of selling any of those assets.

“If this does go to court, we think AT&T holds a strong position and would likely prevail,” Paul Gallant, a Washington analyst at Cowen Research, said Thursday in a note to clients.

CNBC reporter Jeff Cox writes that Cowen believes the  company has three advantages that would give it an edge in its fight with the DOJ.

Read the CNBC article.

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A large group of U.S. states accused key players in the generic drug industry of a broad price-fixing conspiracy, reports Reuters.

Reporter Karen Freifeld writes: “The states said the drugmakers and executives divided customers for their drugs among themselves, agreeing that each company would have a certain percentage of the market. The companies sometimes agreed on price increases in advance, the states added.”

The suit names 18 companies and subsidiaries and named 15 medicines. Mylan NV, Teva Pharmaceuticals USA, Ascend Laboratories and Encure Pharmaceuticals are among the 18 companies named.

The Los Angeles Times also covered Mylan’s challenges: “A price-fixing noose tightens around Mylan, the company that profiteered from the Epipen.”

Read the Reuters article.

Silicon Valley software startup Zenefits and its co-founder Parker Conrad have been fined nearly $1 million by the U.S. Securities and Exchange Commission as part of a settlement over charges that they had misled investors, reports Reuters.

Zenefits will pay a $430,000 penalty and Conrad, who resigned as chief executive from the company in early 2016, has been fined more than $533,000, according to Reuters reporter Heather Somerville.

“The SEC found that Zenefits made ‘false and misleading statements and omissions’ to company investors by failing to disclose that it was not compliant with state insurance regulations,” Somerville reports. “Zenefits employees had sold health insurance without proper licensing, the company said, a violation that led to fines from several states.”

Read the Reuters article.

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The validity of arbitration clauses in employment contracts is unclear and is now before the U.S Supreme Court, points out Mary An Couch in Bradley Arant Boult Cummings LLP’s Labor & Employment Insights blog.

The Supreme Court heard oral argument in National Labor Relations Board v. Murphy Oil, USA, Inc. and two other consolidated cases about whether such clauses violate the National Labor Relations Act (which governs employer-employee relations) or whether the Federal Arbitration Act (which governs arbitration agreements) trumps the NLRA, she writes.

The relevant cases being considered are from the 5th Circuit, which found the arbitration clause did not violate the NLRA, and the 7th and 9th circuits, which found similar clauses unenforceable.

Read the article.

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The Civilian Board of Contracts Appeals recently issued a decision in Turner Construction Co. v. Smithsonian Institution, addressing how a board should respond if the contracting parties cannot agree to a firm price for an undefinitized contract that a contractor fully performs, reports Lisa Markman for Bradley Arant Boult Cummings LLP.

The board is the federal administrative court tasked to resolve disputes between government contractors and federal civilian executive agencies,  she explains.

“The case was unique because Turner and the Smithsonian were supposed to have negotiated a firm fixed price contract during the design phase of the contract, but the parties failed to do so,” Markman writes. “This failure meant that the Smithsonian could not rely on ‘many of the safeguards and defenses that would have been available to it under a firm fixed-price agreement,’ including the contract’s equitable adjustment clause. Instead, the CBCA agreed with Turner and concluded that Turner was entitled to recover in quantum meruit.”

Read the article.

Former general counsel for PepsiCo Inc. Maura Smith is now the focus of an investigation by the SEC after she claimed she was fired in retaliation for the way she handled earlier internal probes concerning allegations of wrongdoing in Russia, according to a report at TheStreet.com.

The Wall Street Journal originally reported on the investigation.

Smith was Pepsi’s general counsel for little more than a year, until June 2012, when she was tasked with overseeing outside lawyers the company hired to investigate business practices with Wimm-Bill-Dann, a Russian dairy product and juice maker Pepsi acquired for $5 billion in 2011.

Read TheStreet.com report.

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The Healthcare Compliance Institute is scheduled for Oct. 29-Nov. 1 in Washington, DC.

The event will give participants the opportunity to go beyond legal analysis, learn how to implement systems that ensure the law is followed, and gain practical advice from experts in a one-of-a-kind forum where lawyers and compliance officers work together, according to the Health Care Compliance Association.

Some of the topics to be covered include:

• Are We Ineffective at Assessing Compliance Program Effectiveness or Are Industry and Government Using Different Standards?
• Handling a Criminal Healthcare Fraud Case
• Tips and Tools for Mitigating CMS Enforcement Actions
• Using Data and Statistics to Defend Against Health Care Enforcement
• Your Company Has Been Served with a Civil Investigative Demand: Now What?
• Managed Care Fraud Enforcement & Compliance

Register or get more information.

Before Equifax discovered a massive computer breach that exposed sensitive information about millions of Americans, the company lobbied Congress on legislation to limit how much it could be forced to pay if sued by consumers, reports The Washington Post.

The company also pressed lawmakers to roll back the powers of its regulators, according to reporters Renae Merle and Hamza Shaban.

“Since at least 2015, the credit reporting agency has repeatedly lobbied lawmakers on issues related to ‘data security and breach notification,’ according to federal disclosure forms,” the Post reports.

Read the Post‘s article.

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President Donald Trump’s travel ban offers the Supreme Court the chance to make a major pronouncement on the president’s power over immigration. But the case also could vanish into the legal ether, and that may be what a majority of the court is hoping for, points out Associated Press reporter Mark Sherman.

“Getting rid of the case would allow the justices to avoid second-guessing the president on a matter of national security or endorsing an especially controversial part of Trump’s agenda,” Sherman writes.

The timing of the ban could help the justices avoid a showdown because the 90-day travel ban on visitors from six mostly Muslim countries will expire before the court will hear the challenge.

Read the AP article.

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The battle over the Clean Power Plan has intensified as Democratic state officials are publicly locking horns with Scott Pruitt, the head of the U.S. Environmental Protection Agency, over the legal advice that he has given to states that oppose the Obama-era carbon-cutting plan, reports Forbes.

Ken Silverstein explains that in March Pruitt wrote a letter in which he advised the states that they do not have to meet the deadlines set by the Clean Power Plan that aims to cut CO2 emissions by 32% by 2030, from a 2005 baseline. But 14 state attorneys general disagree, saying the regulation remains in effect unless the courts would rule otherwise.

“The country is well on its to way to achieving the desired outcome of the regulation: carbon emissions in this country have dropped from 6.13 billion metric tons in 2007 to 5.35 billion metric tons last year because natural gas is replacing coal-fired generation,” writes Silverstein.

Read the article.

“Hurricane Harvey didn’t cherry pick its victims, and FEMA shouldn’t cherry pick who it helps,” Washington, D.C. attorney Diana Verm told the Houston Chronicle this week.

In a post on the website of Androvett Legal Media & Marketing, Verm, who specializes in religious liberty cases, is representing three small Texas churches who recently sued the Federal Emergency Management Agency, alleging the government’s disaster relief policy violates the Constitution by denying faith groups the right to apply for funds.

Texas nonprofits that sustained damage by the Category 4 hurricane have 30 days to apply for emergency cleanup grants. The Houston-area churches maintain they should be eligible since they have and continue to support victims of the devastating storm.

David Coale, a Dallas appellate attorney who specializes in constitutional cases, says the complaint by the Rockport First Assembly of God in Aransas County, Harvest Family Church in Harris County and Hi-Way Tabernacle in Liberty County goes a step farther than previous similar cases by moving beyond exterior structures and building repairs into providing personal services.

“On its face it’s a reasonable request — it’s a disaster and they need all the help they can get,” Coale, a partner with Lynn Pinker Cox Hurst, told the newspaper.  “On the other hand, we are talking about giving people money to offer a place to sleep. There is stuff up in the church about religion and there will be people in the church providing a little bit of ministry.”

The Texas case comes three months after a U.S. Supreme Court ruling that prohibited government discrimination against a Missouri church that had applied for funding for playground equipment.

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With two new commissioners confirmed by the Senate and sworn in, FERC’s seven-month period without a quorum is over and it can get back to business, reports Covington & Burling on its Inside Energy & Environment blog.

He writes that two more nominations are now before the Senate with a hearing scheduled for Sept. 7. Them the agency should be at full strength within the next few months and ready to take on important policy issues.

“There are quite a few critical generic electricity policy initiatives already teed up and awaiting Commission action. Together, the initiatives address fundamental issues spanning a broad range of FERC’s electricity authorities,” according to Peterson.

Read the article.

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A new U.S. rule aimed at restoring consumers’ ability to band together to sue financial companies has survived its first challenge, as a top banking regulator said he would not petition for it to be suspended, Reuters reports

Lisa Lambert and Pete Schroeder write that the Consumer Financial Protection Bureau’s rule abolishing “mandatory arbitration clauses” was released on July 10, and was immediately threatened by Republicans in Congress and President Donald Trump’s administration.

Acting U.S. Comptroller of the Currency Keith Noreika publicly argued with CFPB Director Richard Cordray, appointed by former President Barack Obama, a Democrat, over whether the rule could endanger the banking system.

Read the Reuters report.

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