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- Whistleblower Defense Alert: Supreme Court Holds the WSLA Does Not Apply to the Civil FCA But Limits the Scope of the First-to-File BarToday the Supreme Court issued its decision in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter. On the first question presented, the Court held that the Wartime Suspension of Limitations Act (WSLA) applies only to criminal offenses and thus does not toll the False Claims Act’s (FCA) statute of limitations indefinitely while the United States is in armed conflict.
- Whistleblower Defense Alert: Sixth Circuit Reaffirms Fair Market Value As Proper Measure of Damages, Vacates FCA Award of $657 Million to the GovernmentLast month, the Sixth Circuit reaffirmed the fair market value (FMV) standard as the primary measure of damages in False Claims Act (FCA) cases—and demonstrated the teeth of that requirement when evidence (including expert testimony) is not presented to support an FMV determination. United States v. United Technologies Corp., 2015 U.S. App. LEXIS 5476 (6th Cir. April 6, 2015), represented the culmination of a decades-long dispute between the government and United Technologies’ Pratt & Whitney unit over pricing for engines supplied to the Air Force for use in its F-15 and F-16 aircraft.
- On May 21, 2015, the Supreme Court of Ohio ruled that private entities, even sub-parts of private universities, can quality as public bodies with duties to comply with Ohio’s Public Records Act.
- Labor and Employment Alert: Monitor 401(k)s, Or Else - Supreme Court Overturns Tibble v. Edison InternationalOn May 18, 2015, the U.S. Supreme Court unanimously held in the case of Tibble v. Edison International that fiduciaries of an ERISA plan have a continuing duty to monitor investments and to remove imprudent ones. This decision continues a recent trend in which the Court has demonstrated its willingness to overturn courts of appeals in ERISA cases.
- Labor and Employment Alert: Bad Facts Make Bad Law: The Fourth Circuit Lowers the Bar for Hostile Work Environment and Retaliation ClaimsThe Fourth Circuit Court of Appeals (which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently held that calling an African-American employee a “porch monkey” twice within 24 hours was so severe that it created a hostile work environment. The Court also found that the employee’s complaints about the comments were protected by the anti-retaliation provisions of Title VII.
- The IRS announced the 2016 indexed amounts for health savings accounts (HSAs) and high deductible health plans (HDHPs).
- Although visual in nature, people are not immune from defamation on the popular photo-sharing app Instagram. In fact, in 2014 – merits of the claims aside – rappers 50 Cent and The Game were each sued in unrelated matters for allegedly tarnishing others’ reputations through Instagram posts.
- On April 29, 2015, the Securities and Exchange Commission (SEC) proposed rules to implement Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which directs the SEC to require additional “pay-versus-performance” disclosure in any proxy information statements in which executive compensation disclosure is required pursuant to Item 402 of Regulation S-K.
- Pissed Consumer – branded as a “premier consumer advocacy group” – is home to countless online reviews and complaints about businesses across dozens of industries. For many small- and medium-sized businesses, false and defamatory reviews on Pissed Consumer can be quite harmful.
- On April 29, 2015, the U.S. Supreme Court unanimously held that courts may review the EEOC’s conciliation efforts that are a prerequisite to the EEOC’s filing suit against an employer under Title VII. The Court recognized that the EEOC has “expansive” and “abundant” discretion in how to conduct conciliation efforts and when to end them. Consequently, while courts may evaluate whether the EEOC has attempted conciliation, the scope of that judicial review is limited and “relatively barebones.”
- When running a search of a business on Google, chances are that an aggregate star rating (on a 5.0 scale) and a listing of Google Reviews will appear high up in the search results. While Google Reviews may not yet have the widespread appeal of Yelp, they are gaining in popularity and will continue to be prominently displayed in Google.com search results for obvious reasons.
- Client Alert: Community Bank and Thrift M&A and Capital Planning: Important Opportunities for Small Bank and Thrift Holding Companies Arising from Relief from Basel IIIFollowing its proposal early this year, on April 9 the Federal Reserve issued an important revision to its Small Bank Holding Company (SBHC) Policy Statement relieving bank and savings and loan holding companies with consolidated assets of less than $1 billion from the requirements of Basel III.
- Labor and Employment Alert: EEOC Proposes Rules for Wellness Programs (Could Have Been Better, Could Have Been Worse)For years, the Equal Employment Opportunity Commission declined to provide formal guidance on the application of the ADA to wellness programs. It has now issued rules.
- There are many internet forums on which disgruntled parties are initiating online reputation and brand attacks. This includes people publishing false and defamatory blog posts, which typically involves them creating a free blog through Google, WordPress or another easy-to-use blog-publishing platform for the sole purpose of disparaging other parties.
- Labor and Employment Alert: It’s Common Sense: Sixth Circuit Holds That (Generally) Regular, Predictable Attendance is an Essential Function of the JobLast year, the Sixth Circuit opened the floodgates on telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA). In EEOC v. Ford Motor, the Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA for failing to accommodate Jane Harris’ (a former employee) irritable bowel syndrome by refusing her request to telecommute as-needed up to four days a week.
- Increasingly today, “extortionists” – given the significance of online reviews – are threatening businesses with potential harmful reviews or posting other damaging content online. For instance, if a business does not give that person a refund, produce replacement, or discount, he or she could make good on a promise to harm the company online.
- Labor and Employment Alert: The 9th Circuit Makes it Even Harder to Restrict Former Employees’ EmploymentCalifornia courts have made it notoriously difficult to enforce noncompete agreements against former employees in California. The Ninth Circuit Court of Appeals has just made it even harder.
- Oil and Gas Alert: National Zero Discharge Pretreatment Limit Proposed for Hydraulic Fracturing Oil and Gas Extraction Wastewater Discharged to Publicly Owned Treatment WorksOn April 7, 2015, USEPA proposed a zero discharge Clean Water Act pretreatment standard for wastewater from existing or new Unconventional Oil and Gas Extraction facilities discharged to a Publicly Owned Treatment Works (POTW).
- The U.S. Department of Labor (DOL) recently announced the results of a 2014 enforcement initiative that focused on the oil and gas industry in New Mexico and west Texas. According to the DOL, it recovered more than $1.3 million owed to some 1,300 employees as a result of this investigation. This is not the first DOL foray into wage-and-hour practices within the oil and gas industry. In December 2014, the DOL announced that employers engaged in natural gas extraction in the Marcellus Shale region of Pennsylvania and West Virginia agreed to pay $4,498,547 in back wages to 5,310 employees.
- Despite serious concerns by the industry, as announced on March 19, the Consumer Financial Protection Bureau (CFPB) has opted to publish “personal narratives” in conjunction with complaints against banking institutions. The CFPB website will carry unverified, unsubstantiated and uninvestigated narratives, in the words of the customer, describing their purported issues with a named institution.
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