Wednesday, May 8, 2013

Cahill out, Skadden in as Rutgers Counsel for Coach Probe

Just two weeks after Rutgers University announced the retainer of Cahill Gordon & Reindel to investigate the school's handling of issues leading to the April 3 dismissal of bellicose basketball coach Mike Rice, the firm has resigned, citing “a development that could give rise to a perception of a lack of impartiality.”

Rutgers announced Wednesday that Cahill said in a May 3 letter that Connell Foley, the Roseland firm that the university hired for advice about the Rice situation, had earlier served as Cahill’s local counsel in unrelated litigation in New Jersey. Cahill only discovered the past engagement after its retainer in the Rutgers case, it said.

Rutgers’ board of governors promptly hired a replacement — Skadden, Arps, Slate, Meagher & Flom — to conduct the independent review. Leading it will be Skadden partners Christopher Gunther and Stephen Robinson, the latter a former federal judge and U.S. attorney with experience conducting internal investigations. “We look forward to getting started immediately and understand the importance of this matter to all members of the university community,” Robinson said.

Skadden will make recommendations on any actions that should be taken by the Rutgers administration and the university’s governing bodies. The results of the review will be made public.

Rice was terminated on April 3, the day after ESPN aired video — compiled from three years' worth of practices — showing him shoving players, throwing basketballs at them and rattling off epithets such as "faggot" and "fairy."

Rutgers officials had been aware of the video much earlier. In November, the university’s general counsel, John Wolf, retained Connell Foley to conduct an internal investigation into whether Rice's conduct violated either the university's anti-discrimination, anti-harassment policies or his employment contract.

Connell partner John Lacey issued a report on Jan. 21 that concluded some of Rice's behavior "crossed the line" and could reasonably be interpreted to bring shame and embarrassment to the university in violation of his contract. But Lacey also said he couldn't conclude that Rice's behavior amounted to the legal definition of a hostile work environment.

Athletic director Tim Pernetti chose to suspend and fine Rice rather than terminate him, a decision to which university president Robert Barchi deferred. After the video became public, Barchi and board of governors chairman Ralph Izzo said the decision not fire Rice earlier was based on outside counsel’s advice.

Wolf stepped down from his leadership position and ultimately resigned amid the scandal. He was replaced by Rutgers Law School-Newark Dean John Farmer Jr.

Officials first revealed plans to appoint an outside investigator on April 8 and hired Cahill two weeks later.

Rutgers said Wednesday that the change in counsel will not delay the completion of the investigation and report and that Cahill will assist with a smooth transition to Skadden.

Gerald Harvey, vice chairman of the board of governors, said, “The university has full confidence in Skadden’s expertise and the firm’s ability to conduct the kind of thorough, thoughtful and efficient review that will help Rutgers move forward.”

Posted by Ronald J. Fleury at 10:20 PM.

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Friday, April 12, 2013

House Votes to Shut Down Labor Board

 The House voted Friday to shut down the National Labor Relations Board, with one Republican congressman calling the board "worse than useless" since a recent appeals court ruling voided the recess appointments of two board members.

The bill, called the Preventing Greater Uncertainty in Labor-Management Relations Act, calls for the NLRB to stop activity until the Senate confirms new members or the U.S. Supreme Court rules on the constitutionality of President Barack Obama’s appointments.

The House voted 219-209 to pass the bill, which will likely stall in the Democrat-controlled Senate. Under the bill, the board would also be prevented from enforcing any decision, rule or vote made after January 4, 2012, when President Barack Obama made the recess appointments.

Representative John Kline (R-Minn.) said that the U.S. Court of Appeals for the D.C. Circuit's decision in Noel Canning v NLRB in January means uncertainty for both employers and employees who depend on the board to enforce the law. He called the board "dysfunctional" and said all its decisions are now suspect.

"You can’t go there and get a determination, or you get one that is immediately suspect and open to an appeal to a court that has already said it is unconstitutional," Kline said on the House floor before the vote. "Every time this board makes a decision, it pours more uncertainty into an economy that is still struggling to come out."

Democrats in the House emphatically disagreed with the bill in floor statements. Representative George Miller (D-Calif.) said the bill "effectively takes away every labor right Congress gave workers to better their lives." He said the bill works against both employers and employees who have no recourse against illegal firings or illegal strikes. "Both employers and employees are going to be hurt."

Representative Robert Andrews (D-N.J.) called the bill premature, since the government said it plans to ask the Supreme Court to overturn the D.C. Circuit decision and the petition is due April 25.

Republicans characterizing the appointments as unconstitutional after "a decision by one court of appeals" is "truly a novel theory," Andrews said on the House floor. "Only the Supreme Court has finality in these matters."

In response to the Democrats, Representative Luke Messer (R-Ind.) said that the bill would ensure the integrity of the NLRB, which now has 600 decisions by the board called into question and new decisions that are "ripe for legal challenge."

"The truth is it's the president's unconstitutional actions that have thrown this process into chaos," Messer said on the House floor.

Obama has struggled to fill the labor board, which requires three members to constitute a quorum. In January 2012, Obama appointed three people—Sharon Block, Terence Flynn and Richard Griffin—to the NLRB via recess appointments. Republicans criticized the moves, saying that Obama unlawfully bypassed the advice-and-consent role of the U.S. Senate to review candidates for federal agency slots.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in January this year unanimously declared Obama's appointment of Block and Griffin to the NLRB unconstitutional (Flynn had previously resigned). The appeals court said the Senate was not officially in "the recess," as required by the Constitution.

In the D.C. Circuit, dozens of labor cases are on hold pending the resolution of the legal fight.

Posted by Todd Ruger on April 12, 2013 at 01:20 PM

Posted by Todd Ruger at 01:20 PM.

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Thursday, April 11, 2013

Farmer To Replace Rutgers General Counsel

Rutgers University on Thursday named former N.J. Attorney General John Farmer Jr. as its senior vice president and general counsel, replacing John Wolfe, who resigned earlier in the day.

University President Robert Barchi said the appointment of Farmer, the dean of Rutgers School of Law-Newark since July 2009, is effective immediately, as is the resignation of Wolf, who stepped down amid the scandal surrounding fired basketball coach Mike Rice.

Wolf was a part of the decision-making process that kept Rice on staff despite mounting evidence of his abusive conduct toward basketball players. Rutgers University announced Monday it would hire an independent investigator to review how the episode was handled.

Barchi said Farmer will serve in his new position for 12 to 18 months to help the Rutgers administration manage, among other things, the impending July 1 integration of Rutgers and the University of Medicine and Dentistry of New Jersey.

During the same period, Ronald Chen, the current vice dean of Rutgers Law School-Newark, will serve as acting dean. He will work closely with Rutgers Law School-Camden dean Rayman Solomon on the prospective merger of the two schools, Barchi said.

The university had said earlier that Wolf would stay on as a staff attorney while giving up the top legal job, but on Thursday it announced he would leave “in the best interests of the university.” Wolf agreed to work with the new general counsel to assure a smooth transition.

 “While I regret the circumstances surrounding my departure from Rutgers, I always will have very fond memories of the challenges and achievements that I have been a part of and the many colleagues and friends, both inside and outside the university, with whom I have worked at Rutgers since 1984,” Wolf said.

Farmer joined the administration of Gov. Christine Todd Whitman in 1994, serving as assistant counsel, deputy chief counsel and chief counsel before serving as attorney general from 1999 to 2002. He is a former commissioner of the State Commission of Investigations and a former member of the Executive Commission on Ethical Standards and the New Jersey Governor’s Ethics Advisory Board

Farmer was the first chair of the New Jersey Domestic Preparedness Task Force, leading the coordination of the state’s responses to the terror attacks of Sept. 11, 2001. He was a senior counsel and team leader for the National Commission on Terrorists Attacks upon the United States (the 9/11 Commission) and a principal author of the commission’s final report. His own book, The Ground Truth: The Story Behind America’s Defense on 9/11 (Riverhead/Penguin Press, 2009), is a reconsideration of the government’s 9/11 response in light of  Hurricane Katrina.

Posted by Ronald J. Fleury at 06:30 PM.

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Tuesday, April 9, 2013

U.S. Senate Confirms Patty Shwartz for Third Circuit Seat

The U.S. Senate on Tuesday confirmed Patty Shwartz of New Jersey to the U.S. Court of Appeals for the Third Circuit, more than 18 months after President Barack Obama first nominated her.

Shwartz, a federal magistrate in New Jersey since 2003, drew some opposition from Republicans who felt they did not get an opportunity to fully follow up on key issues such as her opinions on the campaign finance issues in Citizens United v. Federal Elections Commission and her views on Roe v. Wade.

Shwartz was first nominated in October 2011. The vote Tuesday was 64-34.

Senator Robert Menendez (D-N.J.) said before the vote that Shwartz has handled more than 4,000 civil and criminal cases and has the intellectual rigor and knowledge to effectively serve on the appeals court. Shwartz has been an adjunct professor of law at Fordham University School of Law since 2009.

Shwartz is a former federal prosecutor, joining the U.S. Attorney's Office in New Jersey in 1989 and rising through the ranks. She was chief of the criminal division or executive assistant to the U.S. Attorney between 1999 and 2003.

"She is clearly highly qualified, a woman of distinction who deserves confirmation," Menendez said. "There is not a single reason to vote no on this nomination."

The White House has been pushing for swift Senate action on judicial nominees who are waiting for votes. Before the vote on Shwartz, Senator Chuck Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee, sent back a message that Obama had not nominated anyone for 70 percent of the judicial vacancies.

"Quit complaining or get the nominees up here," Grassley said.

Posted by Todd Ruger at 01:30 PM.

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Monday, December 31, 2012

Chief Justice Boasts of Budget Cuts, Urges Filling Lower Court Vacancies

In his annual report on the state of the federal judiciary, Chief Justice John Roberts Jr. today said the third branch of government is doing more than its share to reduce expenditures at a time of fiscal crisis. He also called on both the executive and legislative branches to "act diligently in nominating and confirming highly qualified candidates" to fill long-lingering judicial vacancies in the lower courts.

As he boasted about the judiciary's thriftiness, Roberts took note of the fiscal cliff negotiations consuming the nation's capital, and the "longer term problem of a truly extravagant and burgeoning national debt. No one seriously doubts that the country's fiscal ledger has gone awry." Roberts hastened to add that "the public properly looks to its elected officials to craft a solution. We in the judiciary stand outside the political arena, but we can continue to do our part to address the financial challenges within our sphere."

The Supreme Court itself continues to trim its budget, requesting ever-lower levels of appropriation. For fiscal year 2014, Roberts said, the court will submit a $74.89 million budget request -- a 3.7 percent decrease from the fiscal 2011 level, with cuts coming "primarily in the areas of financial and human resources management."

Overall in 2012, Roberts said the entire judiciary received a total of $6.97 billion in appropriations, which works out to two-tenths of a percent of the total federal budget of $3.7 trillion. "Yes, for each citizen's tax dollar, only two-tenths of one penny go toward funding the entire third branch of government!" Roberts exclaimed, "Those fractions of a penny are what Americans pay for a judiciary that is second to none."

Roberts paid tribute to the "loyal and selfless service" of judges and other employees of the judicial branch. He singled out U.S. District Judge Mark Kravitz of the District of Connecticut, who died September 30 of Lou Gehrig's disease. "We in the judiciary remember Mark not only as a superlative trial judge, but as an extraordinary teacher, scholar, husband, father and friend." Kravitz chaired a key Judicial Conference committee on federal rules of procedure, and carried a full caseload until the final days of his life. Said Roberts, "We shall miss Mark, but his inspiring example remains with us as a model of patriotism and public service."

As he often does, Roberts began his annual report with a historical reference, this time recalling the role of the frigate the USS Constitution in the War of 1812, 200 years ago. "Through two centuries, she has remained a symbol of American courage, skill and tenacity," wrote Roberts.

Posted by Tony Mauro at 06:44 PM.

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