The Dodd-Frank Act's Whistleblower Provisions: The Act's Best Hope For Exposing Financial Wrongdoing
In this BNA Insights article, Outten & Golden attorneys Tammy Marzigliano and Cara E. Greene take a close look at these provisions and the effects of preceding laws, such as the Sarbanes-Oxley Act, to examine what their future impact might be. Bloomberg BNA, Workplace Law Report, 10/22/2010.
On Sept. 15, 2008, Lehman Brothers collapsed, sending shock waves through the financial services industry and portending the industry's broader meltdown. Less than two weeks later, Washington Mutual was seized by the federal government and placed into receivership. Over the next year, more than 100 banks folded, Americans saw $13 trillion in wealth evaporate, and massive securities fraud, like that committed by Bernie Madoff, shook investor confidence to the core. The housing market collapsed, the number of people out of work hit 15.6 million, and the federal deficit ballooned. America was in the midst of the Great Recession.
In response, on July 21, 2010, the federal government enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “act” or “Dodd-Frank Act”), which overhauls and strengthens federal oversight of the financial system. While it is impossible to know whether the financial meltdown could have been avoided had the act's provisions been adopted in 2007 instead of 2010, the question on everyone's mind is whether the Dodd-Frank Act will keep it from happening again. Only time will tell if it will have the desired and intended impact, but the act's whistleblower provisions attempt to ensure that in the future financial fraud and irregularities are exposed long before they corrupt the entire system.
Ethics Corner: Third Circuit Vindicates Plaintiff's Attorney
Justin M. Swartz and Cara E. Greene. July, 2007. Ethics Corner is a regular contribution by the ABA, Labor & Employment Law Section’s Ethics and Professional Responsibility Committee.
The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant. EEOC v. HORA, Inc., No. 05-5393, 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007) (unpublished decision). Characterizing the disqualification as “draconian,” the Circuit held that the district court abused its discretion because the lawyer did not violate any ethics rules, and, even if she had, there was no prejudice to the defendant.
The plaintiff’s lawyer, Jana Barnett, represented Manessta Beverly in a sex harassment and retaliation case against a Days Inn franchise and its management company. During discovery, Barnett conducted an ex parte interview of Debbie Richardson, an administrative assistant at the Days Inn. The district court disqualified Barnett for conducting the interview, finding that she violated Pennsylvania Rules of Professional Conduct (“PRPC”) Rules 4.2, 4.4, and 5.7.
The Third Circuit reversed, holding that Barnett did not violate Rule 4.2 because the administrative assistant was not a member of the organization with whom ex parte contact was forbidden. The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant.
Whose Clients Are They? Contacting Putative Class Members
Cara E. Greene and Jill Maxwell, Labor and Employment Law, Vol. 35, No. 3, Spring 2007 www.abanet.org/labor
The prosecution and defense of class actions involve an abundance of ethical considerations. Attorneys must balance zealous advocacy with the governing rules of professional responsibility. For instance, ex parte communications are often an effective and cost-conscious way to glean information, but attorneys on both sides must consider whether contact with putative class members is permissible and, if so, what form that contact may take. With a little forethought, however, lawyers can ensure that they do not overstep ethics rules when contacting putative class members.
Challenges To Law Firm Mandatory-Retirement Policies
Employment law attorney Cara E. Greene writes about Challenges to Law Firm Mandatory-Retirement Policies. This article originally appeared in Law Journal Newsletters' Accounting and Financial Planning for Law Firms, February 2007. For more information, visit www.ljnonline.com. Authored with Gary Phelan.
A 2006 survey report indicated that 57% of law firms with 100 or more attorneys have mandatory retirement age policies. See, L. Jones “Pitfalls of Mandatory Law Firm Retirement,” National Law Journal, May 24, 2006. But legal challenges to mandatory retirement policies at law firms are likely to become more common as baby boomers reach retirement age.
The debate over whether a law firm can have a mandatory retirement age has focused on the threshold question of whether the “partner” is deemed an “employer” or an “employee.” For each class of lawyer, this article explores possible legal remedies.
Counseling Multinational Employees: Their Rights And Remedies Under US Law
This article by Outten & Golden partner Wendi S. Lazar sketches a map through the convoluted terrain of representing multinational and expatriate employees. Simply determining whether there may be a cause of action can require careful parsing of the laws of multiple jurisdictions and the employer's corporate structure as well as the usual inquiries into the employee's and employer's conduct and relevant contracts. Using a case study of one employee's circumstances and potential legal claims, Lazar outlines the important issues an attorney must resolve in order to best counsel a client. (2006, with significant contributions from Wayne Outten and Anjana Samant.)
Employment attorney, Wayne N. Outten, with Douglas C. James, discusses the ethical obligations of law firms and departing partners and how they must handle this situation in a way that is consistent with the principle of client choice. This article originally appeared in Law Journal Newsletters' Law Firm Partnership & Benefits Report, September 2004. For more information, visit www.ljnonline.com.
The answer is, nobody.
When a partner leaves a law firm, the parties have to allocate various partnership rights, assets, and other interests. They may allocate most of these interests in any way that they choose. They may not, however, allocate clients, perhaps the most valuable of partnership “assets.” The client alone decides whether to remain a client of the firm, to leave with the departing partner, or to choose another attorney. Law firms and departing partners have an ethical obligation to handle these situations in a way that is consistent with the principle of client choice.
Mediation Advocacy: An Employees' Attorney Perspective
Employment attorney Wayne N. Outten, Georgetown University Law Center, CLE, Employment Law and Litigation Institute: Legal Trends and Practice Strategies, Thursday-Friday, April 15-16, 2004, Washington, DC.
This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.
The opportunities are legion for problems and disputes to arise out of the employment relationship – during and after the period of employment, and involving non-legal as well as legal issues. Counsel for employees should, of course, be familiar with the legal issues that may arise and with the traditional legal procedures for addressing such legal issues. But familiarity with such legal matters is not enough. Counsel for employees should also be familiar with tactics, strategies, and methods for solving legal and non-legal problems and resolving disputes that do not necessarily depend on the assertion of legal rights and that do not necessarily employ formal legal procedures. This paper addresses negotiation approaches and dispute resolution procedures that are well-suited for dealing with the problems and disputes often encountered by employees and their counsel.
Developments In Harassment Law: Update For 2002-2003
Wayne N. Outten and Piper Hoffman, the 20th Annual Upper MidWest Employment Law Institute, May 28-29, 2003, St. Paul, MN.
The standard for employer liability depends on whether the harasser was a co-worker or a supervisor of the victim. If the former, the employer is liable only if it was negligent; if the latter, the employer is strictly liable, subject to the affirmative defenses discussed [within].
The Supreme Court observed that Title VII was enacted not only to provide redress for unlawful discrimination, but also to prevent such discrimination. The goal of preventing discrimination would be promoted, the Court held, by imposing on employers strict liability for the conduct of their supervisors under certain circumstances, because, as between employers and employees, the employers are better able to prevent discrimination by such supervisors. Specifically, the Court held that an employer is strictly liable for a supervisor’s sexually harassing behavior whenever the supervisor is the employer’s “alter ego” or the supervisor has taken a “tangible employment action” against the employee; examples of such actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth at 761. The Court found that the occurrence of a tangible employment action justified holding an employer liable for its supervisor’s harassment because the action could not have been taken absent the agency relation.