The district court's opinion granted summary judgment to the Illinois Department of Transportation (IDOT) in a case brought by Dunnet Bay Construction Company challenging IDOT's implementation of federal Disadvantaged Business Enterprise (DBE) participation goals. The American Road and Transportation Builders Association argues in an amicus brief that the district court's opinion establishes an erroneous standard of review that would effectively eliminate meaningful judicial review of whether DBE goals have been unlawfully converted to quotas. Specifically, the opinion (1) applies a deferential standard of review rather than strict scrutiny; (2) limits review to whether IDOT followed federal regulations rather than considering evidence the goals operated as quotas; and (3) finds no way IDOT could have exceeded
The document summarizes several recent changes to Colorado law:
1) New rules for calculating filing deadlines take effect in 2012 and practitioners should check for updates. 2) The Jurisdiction and Venue Clarification Act of 2011 changes federal removal and venue rules. 3) The Colorado Supreme Court adopted a new public domain citation format for its opinions to make them more accessible.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Over the last few years we have seen some significant adjustments and developments in Revised Article Nine. Starting with 2013 statutory changes and now recent court cases have created a new environment that due diligence experts must adjust to in order to maintain their high levels. This one hour seminar explores some of these changes and how they impact the due diligence work flow and the relationships between the interested parties.
Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea...Chuck Stanley
Puerto Rico's resident commissioner Pedro Pierluisi says there is little chance Congress will extend Chapter 9 bankruptcy protections to Puerto Rico's public corporations, despite his claims of strong support. A bankruptcy policy expert says it is unlikely and would not pass currently. Pierluisi remains adamant that he has support for a bill in the House Judiciary Committee that would amend bankruptcy laws. He expects to file a bill within two weeks that would extend Chapter 9 access to Puerto Rico's municipalities and public corporations.
The C4C Federal Exchange Newsletter Vol. 2 No. 3 (March 2015) Tanya Ward Jordan
The document summarizes information from the C4C Federal Exchange Newsletter Vol. 2 / No. 3 (March 2015). It discusses the Judgment Fund, which pays court judgments and Justice Department settlements against the government. It also promotes transparency of "Alleged Discriminating Officials" or RMOs, the people alleged to have discriminated in EEO complaints. Finally, it provides summaries of various EEO cases, such as Webster v Rumsfield and Elmers v Veterans Affairs, and highlights news items related to EEOC proposed rule changes.
The CFPB has filed an administrative enforcement action against Integrity Advance, LLC alleging unfair and deceptive practices in payday lending from 2008 to 2012. This is only the third contested administrative proceeding brought by the CFPB. By choosing an administrative forum, the CFPB may seek to pursue claims that would otherwise be time-barred or pre-date the agency's formation in 2011. The CFPB director has previously ruled that statutes of limitations and the effective date of the agency do not apply to administrative proceedings. This case could signal increased assertiveness by the CFPB in using its administrative authority without restrictions on when conduct occurred. The implications of the case will be influenced by any appeals.
This letter from the U.S. Department of Justice outlines a deferred prosecution agreement between Johnson & Johnson (J&J), its subsidiaries, and operating companies, and the Department of Justice related to illegal conduct by some J&J entities. Key points:
1) J&J will plead guilty to Foreign Corrupt Practices Act violations by DePuy, Inc. and accept responsibility for acts of subsidiaries.
2) The agreement is effective for 3 years and may be extended by the Department of Justice for up to 1 additional year.
3) The Department entered the agreement based on J&J voluntarily disclosing misconduct, cooperating with investigations, and agreeing to compliance improvements.
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ (Government Contracts)
Provides information as to the REASONS why the FEDERAL BUREAU OF INVESTIGATION, JUDICIAL COMPLAINTS and CONGRESSIONAL COMPLAINTS Filed by Vogel Denise Newsome are being OBSTRUCTED from being PROSECUTED!
Garretson Resolution Group appears to be FRONTING Firm for United States President Barack Obama and Legal Counsel/Advisor (Baker Donelson Bearman Caldwell & Berkowitz) which has submitted a SLAPP Complaint to OneWebHosting.com in efforts of PREVENTING the PUBLIC/WORLD from knowing of its and President Barack Obama's ROLE in CONSPIRACIES leveled against Vogel Denise Newsome in EXPOSING the TRUTH behind the 911 DOMESTIC TERRORIST ATTACKS, HEALTH CARE BILL/LAW, COLLAPSE OF THE WORLD ECONOMY, EMPLOYMENT violations and other crimes of United States Government Officials. Information that United States President Barack Obama, The Garretson Resolution Group, Baker Donelson Bearman Caldwell & Berkowitz, and United States Congress, etc. do NOT want the PUBLIC/WORLD to see. Information of PUBLIC Interest!
The document summarizes several recent changes to Colorado law:
1) New rules for calculating filing deadlines take effect in 2012 and practitioners should check for updates. 2) The Jurisdiction and Venue Clarification Act of 2011 changes federal removal and venue rules. 3) The Colorado Supreme Court adopted a new public domain citation format for its opinions to make them more accessible.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Over the last few years we have seen some significant adjustments and developments in Revised Article Nine. Starting with 2013 statutory changes and now recent court cases have created a new environment that due diligence experts must adjust to in order to maintain their high levels. This one hour seminar explores some of these changes and how they impact the due diligence work flow and the relationships between the interested parties.
Puerto Rico resident commissioner’s bid to win Chapter 9 status for commonwea...Chuck Stanley
Puerto Rico's resident commissioner Pedro Pierluisi says there is little chance Congress will extend Chapter 9 bankruptcy protections to Puerto Rico's public corporations, despite his claims of strong support. A bankruptcy policy expert says it is unlikely and would not pass currently. Pierluisi remains adamant that he has support for a bill in the House Judiciary Committee that would amend bankruptcy laws. He expects to file a bill within two weeks that would extend Chapter 9 access to Puerto Rico's municipalities and public corporations.
The C4C Federal Exchange Newsletter Vol. 2 No. 3 (March 2015) Tanya Ward Jordan
The document summarizes information from the C4C Federal Exchange Newsletter Vol. 2 / No. 3 (March 2015). It discusses the Judgment Fund, which pays court judgments and Justice Department settlements against the government. It also promotes transparency of "Alleged Discriminating Officials" or RMOs, the people alleged to have discriminated in EEO complaints. Finally, it provides summaries of various EEO cases, such as Webster v Rumsfield and Elmers v Veterans Affairs, and highlights news items related to EEOC proposed rule changes.
The CFPB has filed an administrative enforcement action against Integrity Advance, LLC alleging unfair and deceptive practices in payday lending from 2008 to 2012. This is only the third contested administrative proceeding brought by the CFPB. By choosing an administrative forum, the CFPB may seek to pursue claims that would otherwise be time-barred or pre-date the agency's formation in 2011. The CFPB director has previously ruled that statutes of limitations and the effective date of the agency do not apply to administrative proceedings. This case could signal increased assertiveness by the CFPB in using its administrative authority without restrictions on when conduct occurred. The implications of the case will be influenced by any appeals.
This letter from the U.S. Department of Justice outlines a deferred prosecution agreement between Johnson & Johnson (J&J), its subsidiaries, and operating companies, and the Department of Justice related to illegal conduct by some J&J entities. Key points:
1) J&J will plead guilty to Foreign Corrupt Practices Act violations by DePuy, Inc. and accept responsibility for acts of subsidiaries.
2) The agreement is effective for 3 years and may be extended by the Department of Justice for up to 1 additional year.
3) The Department entered the agreement based on J&J voluntarily disclosing misconduct, cooperating with investigations, and agreeing to compliance improvements.
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ (Government Contracts)
Provides information as to the REASONS why the FEDERAL BUREAU OF INVESTIGATION, JUDICIAL COMPLAINTS and CONGRESSIONAL COMPLAINTS Filed by Vogel Denise Newsome are being OBSTRUCTED from being PROSECUTED!
Garretson Resolution Group appears to be FRONTING Firm for United States President Barack Obama and Legal Counsel/Advisor (Baker Donelson Bearman Caldwell & Berkowitz) which has submitted a SLAPP Complaint to OneWebHosting.com in efforts of PREVENTING the PUBLIC/WORLD from knowing of its and President Barack Obama's ROLE in CONSPIRACIES leveled against Vogel Denise Newsome in EXPOSING the TRUTH behind the 911 DOMESTIC TERRORIST ATTACKS, HEALTH CARE BILL/LAW, COLLAPSE OF THE WORLD ECONOMY, EMPLOYMENT violations and other crimes of United States Government Officials. Information that United States President Barack Obama, The Garretson Resolution Group, Baker Donelson Bearman Caldwell & Berkowitz, and United States Congress, etc. do NOT want the PUBLIC/WORLD to see. Information of PUBLIC Interest!
Travel Ban: Apple, Facebook, Google, Twitter, and Microsoft filed an amicus ...David Sweigert
Uploaded as a courtesy by:
Dave Sweigert,
CISA, CISSP, HCISPP, PCIP, PMP, SEC+
Top tech companies including Apple, Facebook, Google, Twitter, and Microsoft filed an amicus brief on Sunday opposing Donald Trump’s executive order on immigration.
The document, signed by 97 companies, supports the state of Washington in its battle against Trump’s travel ban that attempted to block citizens of seven predominantly Muslim countries.
“The Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years,” the document reads.
MBA Compliance Essentials Successor-In-Interest State Report - CaliforniaMBAMortgage
This document provides information about successor-in-interest requirements in California. It discusses that under the CFPB rules, a successor-in-interest is a person to whom ownership of a property securing a mortgage loan is transferred from the original borrower. The document outlines 5 categories of transfers that would make someone a successor-in-interest. It provides a matrix to guide servicers on what documents to request to confirm someone's status as a successor-in-interest in California in a reasonable manner consistent with state law. The matrix is intended to help servicers comply with both the CFPB rules and relevant California law on successors-in-interest.
The document summarizes recent developments in criminal antitrust enforcement and investigations. It discusses sentencing recommendations in cases involving price fixing of LCD screens and auto parts. It also summarizes investigations and settlements in various industries such as real estate auctions, pharmaceuticals, banking/finance, and technology. Additionally, it discusses the U.S. Justice Department's opposition to "no contest" pleas in antitrust cases and how such pleas could impact enforcement policies.
Carr Maloney PC is a litigation firm providing legal services throughout the mid-Atlantic region. The firm helps businesses and individuals meet all of their legal needs by simplifying complex issues. The document discusses recent litigation and regulatory issues affecting for-profit higher education institutions, including increased potential for class action lawsuits against institutions due to new Department of Education regulations prohibiting mandatory arbitration clauses and internal grievance procedures. It also summarizes ongoing litigation seeking more transparency in the USCIS H-1B visa petition process.
Judge Saylor Order in NECP MDL regarding Transfer of PI Cases to Boston mzamoralaw
This document is a memorandum and order from a federal district court judge on the trustee's motion to transfer various personal injury and wrongful death cases related to a 2012 fungal meningitis outbreak linked to contaminated drugs made by New England Compounding Pharmacy (NECC). The judge grants the motion in part, asserting jurisdiction over and transferring federal cases against NECC and its affiliates as well as state cases involving claims against NECC. However, the judge denies transferring state cases not involving NECC claims at this time due to jurisdictional uncertainties and federalism concerns.
Published September 2012 in The ESOP Association's ESOP Report
Steve Greenapple addresses breach of fiduciary duty and federal common law fraud by participants who transferred their 401(k) account balances to an ESOP, against the sponsor of the Plans, fiduciaries of the Plans and the ESOP's financial advisor.
Considerations for US Employers Post-Defence of Marriage Act (DOMA) National ...Annette Wright, GBA, GBDS
The Supreme Court's decision in U.S. v. Windsor invalidated the federal definition of marriage and spouse under the Defense of Marriage Act (DOMA), altering employer obligations regarding same-sex marriages. The decision will require employers to provide same-sex spouses equal access to benefits like health insurance, family medical leave, COBRA, and pension plans. However, many questions remain unanswered, like which state's marriage recognition laws will determine federal benefits and whether benefits will apply retroactively. Employers should begin reviewing policies to identify changes needed to comply with the new landscape while guidance is still pending on open issues.
The document is a letter from the U.S. Small Business Administration (SBA) to the U.S. Government Accountability Office providing comments on a protest filed regarding an Air Force procurement. The SBA argues that the Air Force failed to comply with its legal obligation to set aside the procurement for small businesses. The SBA believes its interpretation of the Small Business Act, which does not contain geographic restrictions, should be given deference over the position of the Air Force. Prior GAO decisions have found the SBA's views entitled to deference in such matters.
The document discusses the exhaustion of administrative remedies requirement in ERISA litigation, which requires plan participants to fully exhaust a plan's appeals process before filing a lawsuit. It examines the origins and development of the requirement over 40 years, including how it was judicially created based on ERISA's purpose and legislative history rather than being explicitly mentioned in the statute. Practitioners disagree on whether the requirement has benefited ERISA litigation by promoting efficiency or acted as a roadblock. The courts have established some exceptions for when exhaustion would be futile or in certain fiduciary breach claims.
SLAPP Stick - Fighting Lawsuits Against JournalistsUmesh Heendeniya
This document summarizes an article about Strategic Lawsuits Against Public Participation (SLAPPs) and anti-SLAPP laws. It provides the following key points:
1) SLAPPs are frivolous lawsuits brought against people for speaking out on issues of public interest, with the intent to censor or intimidate critics. A Florida case is used as an example of a SLAPP suit.
2) 27 states have anti-SLAPP laws to allow for early dismissal of meritless SLAPP claims and recover legal fees. However, the strength of protections varies significantly between states.
3) A Maryland journalist is pushing for reforms to that state's weak anti-SLAPP law after facing a $
The document analyzes how the Consumer Financial Protection Bureau (CFPB) has used its authority to prohibit abusive acts or practices under the Dodd-Frank Act. It finds that the CFPB has brought 16 cases alleging abusive conduct since 2010. The CFPB most often relies on two prongs of the abusiveness definition - those prohibiting taking unreasonable advantage of a consumer's lack of understanding or inability to protect their interests. Nearly all abusive claims also allege unfair or deceptive practices. The CFPB has rarely used the prong prohibiting interfering with a consumer's understanding and never alone. Overall, the CFPB's use of abusiveness claims has not clearly distinguished what conduct is abusive but not unfair or de
This document is a proposed agreed order between the United States and Luther Burbank Savings to resolve allegations that Luther Burbank's $400,000 minimum loan amount policy for wholesale single-family residential lending resulted in discrimination against racial and ethnic minorities in violation of fair housing and lending laws. Key points include:
- The US alleged Luther Burbank's minimum loan amount had a disparate impact on African American and Hispanic borrowers and residents of majority-minority neighborhoods.
- Luther Burbank denies the allegations but agreed to the order to avoid litigation costs and risks.
- The order requires Luther Burbank to maintain a nondiscriminatory lending program without a $400,000 minimum, implement
1) The strict privity rule generally protects estate planning attorneys from lawsuits brought by disappointed beneficiaries who are not their clients.
2) In this case, two beneficiaries sued the attorneys who drafted their father's estate plan, claiming the plan did not equally distribute assets among the children.
3) The Colorado Supreme Court upheld the strict privity rule, finding the beneficiaries did not have standing to sue since they were not clients of the attorneys. The court opted not to adopt broader exceptions to strict privity utilized in other states.
The report examines whether John Lynn, CEO of Enterprise Cape Breton Corporation, contravened Canada's Conflict of Interest Act. It finds that in 2010 and 2012, while CEO, Lynn performed paid work for a private company. This included advising on a potential sale and signing a personal services agreement. While the work did not constitute managing a business, it did constitute paid consultancy work. As a result, the report concludes Lynn contravened the Act by serving as a paid consultant while a public office holder.
The CFPB: New Director, New Powers, New Threats-Political and JudicialPatton Boggs LLP
The document discusses the controversy surrounding the recess appointment of Richard Cordray as the director of the Consumer Financial Protection Bureau (CFPB) and the legal challenges to whether this allows the CFPB to exercise its full range of new powers. It also summarizes that the CFPB has begun exercising its authority over non-bank financial institutions and intends to closely regulate these industries through rulemaking and examinations. Legal challenges may limit what powers the CFPB can exercise until a Senate confirmed director is appointed.
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...Parsons Behle & Latimer
A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.
PHH - Consumer Financial Services Alert 22 June 2015 FINALOri Lev
The CFPB issued its first final decision in a contested administrative proceeding against PHH Corp. Director Cordray overturned the ALJ's ruling and ordered PHH to pay over $109 million in disgorgement, much higher than the $6.4 million recommended by the ALJ. Key aspects of the decision include that no statute of limitations applies to CFPB administrative actions under RESPA, RESPA violations accrue when kickbacks are paid rather than at closing, and Section 8(c)(2) of RESPA does not shield payments for referrals even if they are at fair market value. The decision establishes significant new precedents around RESPA interpretation and CFPB administrative procedures.
The document discusses issues related to contract drafting, including warranties, limitation of liability clauses, compliance with the Foreign Corrupt Practices Act (FCPA), and indemnification provisions. It provides sample language and clauses for these various types of contractual provisions. The document is intended as a guide for considerations and templates when drafting agreements between parties.
This document provides an overview of the effects of legal fee shifting, or indemnification, on litigation decisions and outcomes. It discusses how fee shifting influences parties' incentives to expend resources during litigation, decisions to bring or defend lawsuits, and choices between settlement and trial. The document also examines how fee shifting rules interact with incentives for efficient behavior and considers variants like those based on settlement negotiations or margins of victory. While fee shifting aims to remedy some externalities, it also fails to address and may exacerbate others, making its overall impact on litigation costs ambiguous.
This letter responds to Formal Opinion No. 49 issued by the Hawaii Supreme Court Disciplinary Board regarding the provision of legal services for medical marijuana businesses. The letter proposes two alternatives to amend Hawaii Rule of Professional Conduct 1.2(d) to allow such legal services: 1) Add a comment clarifying that lawyers can advise on conduct permitted by state law, or 2) Directly amend Rule 1.2(d) to include such language. The letter also urges reconsideration of Formal Opinion No. 49 given the passage of Hawaii's medical marijuana law.
The document discusses the differences between mediation confidentiality and privilege. While most states have strong mediation privilege laws, federal courts take differing approaches. Some federal district courts recognize a mediation privilege based on local rules, while circuit courts have declined to adopt a uniform federal privilege. This can lead to situations where materials protected by state privilege laws may be disclosed in federal court or vice versa. The lack of uniformity creates uncertainty around mediation confidentiality when cases involve both state and federal issues or proceedings.
Employee class action v Google, Apple, Intel and othersDennis Howlett
Google, Apple, Intel and others are in the dock in a case where plaintiffs argue the operation of an illegal cartel designed to restrict pay to skilled workers.
Travel Ban: Apple, Facebook, Google, Twitter, and Microsoft filed an amicus ...David Sweigert
Uploaded as a courtesy by:
Dave Sweigert,
CISA, CISSP, HCISPP, PCIP, PMP, SEC+
Top tech companies including Apple, Facebook, Google, Twitter, and Microsoft filed an amicus brief on Sunday opposing Donald Trump’s executive order on immigration.
The document, signed by 97 companies, supports the state of Washington in its battle against Trump’s travel ban that attempted to block citizens of seven predominantly Muslim countries.
“The Order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than fifty years,” the document reads.
MBA Compliance Essentials Successor-In-Interest State Report - CaliforniaMBAMortgage
This document provides information about successor-in-interest requirements in California. It discusses that under the CFPB rules, a successor-in-interest is a person to whom ownership of a property securing a mortgage loan is transferred from the original borrower. The document outlines 5 categories of transfers that would make someone a successor-in-interest. It provides a matrix to guide servicers on what documents to request to confirm someone's status as a successor-in-interest in California in a reasonable manner consistent with state law. The matrix is intended to help servicers comply with both the CFPB rules and relevant California law on successors-in-interest.
The document summarizes recent developments in criminal antitrust enforcement and investigations. It discusses sentencing recommendations in cases involving price fixing of LCD screens and auto parts. It also summarizes investigations and settlements in various industries such as real estate auctions, pharmaceuticals, banking/finance, and technology. Additionally, it discusses the U.S. Justice Department's opposition to "no contest" pleas in antitrust cases and how such pleas could impact enforcement policies.
Carr Maloney PC is a litigation firm providing legal services throughout the mid-Atlantic region. The firm helps businesses and individuals meet all of their legal needs by simplifying complex issues. The document discusses recent litigation and regulatory issues affecting for-profit higher education institutions, including increased potential for class action lawsuits against institutions due to new Department of Education regulations prohibiting mandatory arbitration clauses and internal grievance procedures. It also summarizes ongoing litigation seeking more transparency in the USCIS H-1B visa petition process.
Judge Saylor Order in NECP MDL regarding Transfer of PI Cases to Boston mzamoralaw
This document is a memorandum and order from a federal district court judge on the trustee's motion to transfer various personal injury and wrongful death cases related to a 2012 fungal meningitis outbreak linked to contaminated drugs made by New England Compounding Pharmacy (NECC). The judge grants the motion in part, asserting jurisdiction over and transferring federal cases against NECC and its affiliates as well as state cases involving claims against NECC. However, the judge denies transferring state cases not involving NECC claims at this time due to jurisdictional uncertainties and federalism concerns.
Published September 2012 in The ESOP Association's ESOP Report
Steve Greenapple addresses breach of fiduciary duty and federal common law fraud by participants who transferred their 401(k) account balances to an ESOP, against the sponsor of the Plans, fiduciaries of the Plans and the ESOP's financial advisor.
Considerations for US Employers Post-Defence of Marriage Act (DOMA) National ...Annette Wright, GBA, GBDS
The Supreme Court's decision in U.S. v. Windsor invalidated the federal definition of marriage and spouse under the Defense of Marriage Act (DOMA), altering employer obligations regarding same-sex marriages. The decision will require employers to provide same-sex spouses equal access to benefits like health insurance, family medical leave, COBRA, and pension plans. However, many questions remain unanswered, like which state's marriage recognition laws will determine federal benefits and whether benefits will apply retroactively. Employers should begin reviewing policies to identify changes needed to comply with the new landscape while guidance is still pending on open issues.
The document is a letter from the U.S. Small Business Administration (SBA) to the U.S. Government Accountability Office providing comments on a protest filed regarding an Air Force procurement. The SBA argues that the Air Force failed to comply with its legal obligation to set aside the procurement for small businesses. The SBA believes its interpretation of the Small Business Act, which does not contain geographic restrictions, should be given deference over the position of the Air Force. Prior GAO decisions have found the SBA's views entitled to deference in such matters.
The document discusses the exhaustion of administrative remedies requirement in ERISA litigation, which requires plan participants to fully exhaust a plan's appeals process before filing a lawsuit. It examines the origins and development of the requirement over 40 years, including how it was judicially created based on ERISA's purpose and legislative history rather than being explicitly mentioned in the statute. Practitioners disagree on whether the requirement has benefited ERISA litigation by promoting efficiency or acted as a roadblock. The courts have established some exceptions for when exhaustion would be futile or in certain fiduciary breach claims.
SLAPP Stick - Fighting Lawsuits Against JournalistsUmesh Heendeniya
This document summarizes an article about Strategic Lawsuits Against Public Participation (SLAPPs) and anti-SLAPP laws. It provides the following key points:
1) SLAPPs are frivolous lawsuits brought against people for speaking out on issues of public interest, with the intent to censor or intimidate critics. A Florida case is used as an example of a SLAPP suit.
2) 27 states have anti-SLAPP laws to allow for early dismissal of meritless SLAPP claims and recover legal fees. However, the strength of protections varies significantly between states.
3) A Maryland journalist is pushing for reforms to that state's weak anti-SLAPP law after facing a $
The document analyzes how the Consumer Financial Protection Bureau (CFPB) has used its authority to prohibit abusive acts or practices under the Dodd-Frank Act. It finds that the CFPB has brought 16 cases alleging abusive conduct since 2010. The CFPB most often relies on two prongs of the abusiveness definition - those prohibiting taking unreasonable advantage of a consumer's lack of understanding or inability to protect their interests. Nearly all abusive claims also allege unfair or deceptive practices. The CFPB has rarely used the prong prohibiting interfering with a consumer's understanding and never alone. Overall, the CFPB's use of abusiveness claims has not clearly distinguished what conduct is abusive but not unfair or de
This document is a proposed agreed order between the United States and Luther Burbank Savings to resolve allegations that Luther Burbank's $400,000 minimum loan amount policy for wholesale single-family residential lending resulted in discrimination against racial and ethnic minorities in violation of fair housing and lending laws. Key points include:
- The US alleged Luther Burbank's minimum loan amount had a disparate impact on African American and Hispanic borrowers and residents of majority-minority neighborhoods.
- Luther Burbank denies the allegations but agreed to the order to avoid litigation costs and risks.
- The order requires Luther Burbank to maintain a nondiscriminatory lending program without a $400,000 minimum, implement
1) The strict privity rule generally protects estate planning attorneys from lawsuits brought by disappointed beneficiaries who are not their clients.
2) In this case, two beneficiaries sued the attorneys who drafted their father's estate plan, claiming the plan did not equally distribute assets among the children.
3) The Colorado Supreme Court upheld the strict privity rule, finding the beneficiaries did not have standing to sue since they were not clients of the attorneys. The court opted not to adopt broader exceptions to strict privity utilized in other states.
The report examines whether John Lynn, CEO of Enterprise Cape Breton Corporation, contravened Canada's Conflict of Interest Act. It finds that in 2010 and 2012, while CEO, Lynn performed paid work for a private company. This included advising on a potential sale and signing a personal services agreement. While the work did not constitute managing a business, it did constitute paid consultancy work. As a result, the report concludes Lynn contravened the Act by serving as a paid consultant while a public office holder.
The CFPB: New Director, New Powers, New Threats-Political and JudicialPatton Boggs LLP
The document discusses the controversy surrounding the recess appointment of Richard Cordray as the director of the Consumer Financial Protection Bureau (CFPB) and the legal challenges to whether this allows the CFPB to exercise its full range of new powers. It also summarizes that the CFPB has begun exercising its authority over non-bank financial institutions and intends to closely regulate these industries through rulemaking and examinations. Legal challenges may limit what powers the CFPB can exercise until a Senate confirmed director is appointed.
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...Parsons Behle & Latimer
A presentation about the ethical and professional obligations when reviewing a potential personal injury matter and when associating with another firm on personal injury matters.
PHH - Consumer Financial Services Alert 22 June 2015 FINALOri Lev
The CFPB issued its first final decision in a contested administrative proceeding against PHH Corp. Director Cordray overturned the ALJ's ruling and ordered PHH to pay over $109 million in disgorgement, much higher than the $6.4 million recommended by the ALJ. Key aspects of the decision include that no statute of limitations applies to CFPB administrative actions under RESPA, RESPA violations accrue when kickbacks are paid rather than at closing, and Section 8(c)(2) of RESPA does not shield payments for referrals even if they are at fair market value. The decision establishes significant new precedents around RESPA interpretation and CFPB administrative procedures.
The document discusses issues related to contract drafting, including warranties, limitation of liability clauses, compliance with the Foreign Corrupt Practices Act (FCPA), and indemnification provisions. It provides sample language and clauses for these various types of contractual provisions. The document is intended as a guide for considerations and templates when drafting agreements between parties.
This document provides an overview of the effects of legal fee shifting, or indemnification, on litigation decisions and outcomes. It discusses how fee shifting influences parties' incentives to expend resources during litigation, decisions to bring or defend lawsuits, and choices between settlement and trial. The document also examines how fee shifting rules interact with incentives for efficient behavior and considers variants like those based on settlement negotiations or margins of victory. While fee shifting aims to remedy some externalities, it also fails to address and may exacerbate others, making its overall impact on litigation costs ambiguous.
This letter responds to Formal Opinion No. 49 issued by the Hawaii Supreme Court Disciplinary Board regarding the provision of legal services for medical marijuana businesses. The letter proposes two alternatives to amend Hawaii Rule of Professional Conduct 1.2(d) to allow such legal services: 1) Add a comment clarifying that lawyers can advise on conduct permitted by state law, or 2) Directly amend Rule 1.2(d) to include such language. The letter also urges reconsideration of Formal Opinion No. 49 given the passage of Hawaii's medical marijuana law.
The document discusses the differences between mediation confidentiality and privilege. While most states have strong mediation privilege laws, federal courts take differing approaches. Some federal district courts recognize a mediation privilege based on local rules, while circuit courts have declined to adopt a uniform federal privilege. This can lead to situations where materials protected by state privilege laws may be disclosed in federal court or vice versa. The lack of uniformity creates uncertainty around mediation confidentiality when cases involve both state and federal issues or proceedings.
Employee class action v Google, Apple, Intel and othersDennis Howlett
Google, Apple, Intel and others are in the dock in a case where plaintiffs argue the operation of an illegal cartel designed to restrict pay to skilled workers.
The document summarizes a presentation on recent updates to federal procurement rules and regulations. It discusses the mandatory disclosure rule, contract disputes, statutes and regulations, bid protests, and organizational conflicts of interest. Key points include requirements for contractors to disclose violations, recent case law on jurisdiction and claims, new laws like the stimulus bill and its reporting requirements, common reasons for sustained bid protests, and new rules tightening restrictions on organizational conflicts of interest.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
NYC Parking Ticket Cases You Ought to Know AboutLawrence Berezin
You will be shocked at the helpful information contained in these essential parking ticket cases, and how the Evil Empire ignores the law. Read 'em and save your hard earned dough.
Chicago Daily Law Bulletin - Legal-malpractice suit can advance in case of mPaul Porvaznik
The appellate court reversed a lower court's granting of summary judgment for a law firm in a legal malpractice case. The plaintiff construction company had sued its former law firm for failing to properly perfect a mechanic's lien, forcing the plaintiff to settle for $1.3 million less than the lien was worth. The appellate court found that a release signed by the plaintiff when terminating representation did not bar the malpractice claim, as there was no evidence the plaintiff knew of the potential filing error when signing. The court also rejected a judicial estoppel argument, finding the plaintiff pursued alternative arguments in the underlying case reasonably. The malpractice suit could include prejudgment interest, as the underlying lien claim allowed for it.
Google Adsense visé par une nouvelle action de groupe - New lawsuit accuses Google of AdSense fraud Source : http://www.cnet.com/news/new-lawsuit-accuses-google-of-adsense-fraud/
This document summarizes several recent developments in employment law across various areas:
1) It discusses recent court rulings on whether law firm shareholders are considered employees under discrimination statutes, the appropriate causation standard for ADA claims, and whether the paycheck accrual rule applies to §1983 cases.
2) It also summarizes recent cases related to burden of proof standards for FMLA interference claims, the scope of bankruptcy anti-discrimination statutes, and whether a new EEOC charge is required for retaliation occurring after an initial filing.
3) Additionally, the document analyzes issues like what constitutes actionable retaliation by a lawyer, the right to a jury trial under the WARN Act, and standards for
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
Commercial & Complex Litigation Newsletter – Hot Topics That Impact Your Busi...CohenGrigsby
In this issue, Successor Liability for Environmental Liabilities by Julie W. Vanneman, PA Adopts the Revised Uniform Arbitration Act: What You Need to Know by Katie R. Jacobs, and The Key to Your CGL Policy: The Misunderstood Word: “Occurrence” by Mark A. May
This document summarizes key issues in removing bad faith litigation from state to federal court, including improper joinder and establishing the amount in controversy. It also discusses procedural issues like concurrent litigation, choice of law analyses, and enforcing or ignoring choice of law clauses in insurance contracts. The document is from a national forum on bad faith claims and litigation, and provides an overview of removal procedures and the tests used to determine improper joinder or the applicability of state versus federal law.
Trial Strategy: When Will a U.S. Court Assert Jurisdiction Over a Foreign In...NationalUnderwriter
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The document discusses a recent federal court case that evaluated the enforceability of a non-solicitation agreement signed by a former employee. The court applied a flexible, totality of the circumstances test rather than rigidly requiring two years of continuous employment. It considered factors like a large signing bonus paid to the employee. The court also found the employer's breach of fiduciary duty claim was not entirely preempted by trade secret law. The case demonstrates courts may enforce restrictive covenants based on various factors beyond just employment duration.
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This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
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This document contains a motion to dismiss a court case for lack of evidence and due process violations. It argues that the judgment should be voided for several reasons, including that no first-hand witnesses testified under oath to provide evidence, hearsay was relied upon, the plaintiff's attorney lacked capacity to testify, substantive due process was denied without a material fact witness, and no valid contract was presented. The motion seeks to dismiss the case based on these deficiencies.
FORMAT FOR CASE BRIEF Virtually all of the cases in thi.docxbudbarber38650
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Virtually all of the cases in this text (and all legal texts for that matter) are at
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are resolved, as opposed to issues of fact which are resolved at the trial
court level.
This suggested format is a slight modification of an outline for Case Briefs
used in the legal profession. (Example - Text Pg 4 – Case 1.1)
Style of Case and Citation:
Example - United States of America v. Martha Stewart and Peter Bacanovic
U.S. District, LEXIS 12538 (2004)
Court Rendering Final Decision:
Example - U.S. 2nd Circuit Court Of Appeals
Identification of Parties and Procedural Details: Who is the Plaintiff/Appellant?
Who is the Defendant/Appealer? What is the cause of action? Who prevailed in lower
court? Who is appealing to what court?
Example - Original Defendants, Martha Stewart and Peter Bacanovic, are Appealing
their conviction for Insider Trading in the Federal District Court by the U.S.
Department of Justice, and asking for a New Trial based on a Claim of Perjury by the
Prosecution's Expert Star Witness - Lawrence F. Stewart of the U.S. Secret Service.
District Court found insufficient evidence for invalidating the Jury/Court Decisions,
and Stewart and Bacanovic are Appealing to the U.S. 2nd Court of Appeals.
Discussion of the Facts: Who did what to whom? What relief is being sought?
Example - Defendants were trading ImClone Stock based on insider information one
day prior to a Public Announcement of damaging financial information regarding
ImClone Corporation. Both Defendants were also accused of lying to FBI Agents
during an investigation of the Insider Trading Claim.
Statement and Discussion of the Legal Issues in Dispute: What decision of the
lower court is being challenged? What specific legal questions is the subject court
being asked to address? Is the question about Common-Law? A Statute?
Example – The Defendants are challenging the District Court's Denial of their right to
a re-trial based on the presumed Perjury of the Expert Witness. This is a question of
2
Federal Statutory Court Procedure, which did not require an investigation of the
truthfulness of witnesses Testimony.
Subject Court Final Decision: For Plaintiff? For Defendant? What happens next?
Example – Ruling is in favor of U.S. Prosecutors. The conviction of Martha Stewart
and Peter Bacanovic in District Court is Affirmed. Request for a New Trial is
Denied.
Summary of This Final Court’s Reasoning: What is the legal basis for the court’s
decision? Be sure to include relevant Dissenting Opinions.
Example – The Testimony of Lawrence F. Stewart was not reviewed for Perjury by
the Court of Appeals because his Testimony was not successfully challenged in
District Court, and was supported by three other witnesses. Even if Mr. Stewart had.
The document provides information about advertising opportunities with the American Road & Transportation Builders Association (ARTBA). It details the size and influence of the transportation construction market in the US. It also outlines ARTBA's print and digital publications that reach over 14,000 transportation industry professionals, and provides advertising rates and specifications. Key advertising options include placements in ARTBA's magazine, website, and weekly digital newsletter.
This document summarizes an issue of the publication "Transportation Builder" from September/October 2016. The cover story discusses the launch of the new "Safety Certification for Transportation Project Professionals" (SCTPP) certification program developed by the American Road & Transportation Builders Association (ARTBA). The program aims to make all transportation construction projects worldwide zero-incident zones. It is designed specifically for the transportation industry and was developed by industry safety experts. Thousands of transportation professionals will be eligible for the certification, which covers a wide range of safety topics. ARTBA chairman David Zachry expresses support for the new program and thanks those involved in its creation.
The document summarizes the July/August 2016 issue of the Transportation Builder magazine published by the American Road & Transportation Builders Association (ARTBA). The issue previews ARTBA's annual convention in Tucson, Arizona in October 2016 which will focus on transportation construction safety and feature speakers on business and aviation. It also advertises transportation construction equipment, products, and services.
The National Work Zone Management Conference Agenda 2016artba
The document outlines the schedule for the National Work Zone Management Conference taking place from September 20-22 in Springfield, Virginia. The conference consists of multiple tracks of sessions covering topics such as work zone safety certification, signage and lighting, crash characteristics and countermeasures, quality of work zone markings, accommodating pedestrians and bicyclists, and new technologies including autonomous and connected vehicles. There will also be presentations on coordinating multiple work zones, real-time monitoring using ITS, and preventing work zone intrusions from the contractor's perspective. An opening luncheon will feature a panel on autonomous and connected vehicles in work zones.
This document provides information about the 2016 ARTBA National Convention being held from October 4-6 at the JW Marriott Tucson Starr Pass Resort & Spa in Tucson, Arizona. The convention will focus on putting safety first and will feature presentations on new safety certification programs and discussions on transportation policy and business topics. The document outlines the schedule of events, list of sponsors, and information about the host hotel and exhibitors.
This document is the May/June 2016 issue of Transportation Builder, the official publication of the American Road & Transportation Builders Association (ARTBA). The issue focuses on transportation construction safety. It includes articles on ARTBA's new safety certificate training course, innovations in mobile barriers that provide positive separation for workers, and using technology to detect and repair potholes. The chairman's letter expresses ARTBA's continued commitment to transportation worker safety and previews a major new safety initiative to be announced at the upcoming ARTBA National Convention.
The summary is:
The 2016 Northeastern Regional Meeting will take place November 2-4 at the Borgata Hotel in Atlantic City, NJ. The agenda includes registration, networking events, presentations on innovative transportation technologies, workshops, panels on the state of the transportation industry, and updates from regional transportation organizations. Presentation topics will cover drones, autonomous vehicles, transportation construction market trends, and policy issues. Representatives from the Port Authority of NY/NJ, New Jersey DOT, and state contractors associations will also provide information.
The 2016 Southern Regional Meeting will take place from October 26-28 at the Ritz Carlton in New Orleans, LA. The agenda includes presentations and panel discussions on topics such as the impact of artificial intelligence on the construction industry, the state of transportation design and construction in the South, and state and federal transportation policy and market updates. Events include a first-time attendee networking event, opening and networking receptions, breakfasts and luncheons, and presentations from transportation officials and industry leaders. The meeting will provide an opportunity for transportation construction professionals in the Southern region to network, learn, and discuss important issues facing the industry.
The 2016 Central Regional Meeting will take place from November 2-4 at the Hyatt Regency McCormick Place in Chicago, Illinois. The meeting will include presentations and panel discussions on topics like the future transportation workforce and millennials, the state of the transportation industry in the central region, and transportation policy updates. There will also be opportunities for networking through various receptions and breakfast/lunch events. The meeting aims to bring together transportation construction professionals from the central United States to discuss current issues and opportunities in the industry.
The 2016 Western Regional Meeting will take place from October 26-28 at the Hilton in Austin, Texas. The agenda includes presentations and panel discussions on topics such as autonomous vehicles and their impact on infrastructure, the state of the transportation design and construction industry in the West, and transportation policy updates. There will also be opportunities for networking through various receptions and breaks during the three-day conference.
The 2016 Western Regional Meeting will take place from October 26-28 in Austin, Texas at the Hilton hotel. The agenda includes presentations and panel discussions on topics like autonomous vehicles and their impact on infrastructure, the state of the transportation design and construction industry in the West, and transportation policy updates. There will also be opportunities for networking through various receptions and meals. The meeting will conclude on Friday after presentations from the Texas Department of Transportation, an economic report, and state chapter affiliates.
The article discusses bridge infrastructure in the United States. It provides an overview of some recent bridge projects across the country, including projects in Chicago and Woodbridge Township, New Jersey that are repairing structurally deficient bridges. It also discusses Pennsylvania's efforts to address its large number of structurally deficient bridges. Additionally, it summarizes ARTBA's recent report that found over 61,000 structurally deficient bridges nationwide still need repair, though the number has decreased by over 2,000 from the previous year. The article encourages passage of a long-term transportation bill to provide increased and more stable funding for bridge repairs and replacements.
The document is the September-October 2015 issue of Transportation Builder, the official publication of the American Road & Transportation Builders Association (ARTBA). It includes articles on ARTBA's advocacy efforts to pass a long-term surface transportation bill, safety initiatives, engaging young professionals, and the upcoming Dr. J. Don Brock TransOvation workshop. It also previews the 12th annual "Through the Lens" photo feature showcasing transportation construction projects.
The document discusses a new cutter bit called the GENERATION X from Wirtgen Rhino Parts. It reduces operating costs through longer life and downtime through greater reliability. Its carbide shape maximizes production and carbide utilization. The heavy-duty wear ring minimizes toolholder wear and improves protection while optimizing bit rotation. Wirtgen Rhino Parts produces consistent, high-quality products through precision manufacturing.
This document is the January-February 2016 issue of Transportation Builder, the official publication of the American Road & Transportation Builders Association (ARTBA). It discusses several key issues and priorities for ARTBA in 2016, including:
1) Ensuring full funding of the surface transportation programs authorized in the FAST Act and obtaining long-term, increased funding for airport capital programs and the prevention of excessive regulatory actions.
2) ARTBA's strategic plan to engage the next generation of industry leaders, including rebranding the Young Executive Development Program as the Industry Leader Development Program and the Young Executive Leadership Council as the Industry Leader Development Council.
3) A new study showing that the Highway Trust Fund faces an annual $18
This issue of Transportation Builder focuses on bridges and airports. It provides information on 10 bridge projects and 14 airport construction projects across the U.S., including both new construction and rehabilitation of bridges and major capital work like terminals and runways at airports. Some of the projects are complete while others are still under construction, and some airport work remains planned. The issue also introduces a new Q&A feature interviewing a woman leader in transportation and highlights innovations from ARTBA's Research and Education Division.
This document outlines the schedule for a transportation construction industry conference held over three days. It lists over 30 different meetings, presentations, and events taking place during sessions on topics such as public-private partnerships, contracting, research and education, and legislative affairs. Sponsorship levels for the conference are also identified, ranging from platinum to silver to exhibitor levels.
This document contains the schedule and agenda for the 2016 ARTBA Federal Issues Program & Transportation Construction Coalition Fly-In event taking place from May 9-11 at the Hyatt Regency Washington Hotel. The schedule details the times and locations for various meetings, presentations, and legislative sessions focused on federal transportation issues. Sponsorship levels and participating organizations are also listed.
This document outlines the agenda and schedule for the 2016 Industry Leader Development Program hosted by the American Road & Transportation Builders Association. The program will provide an introduction to transportation infrastructure advocacy through presentations and discussions on topics such as transportation funding, the federal aid highway program, regulations, public-private partnerships, and meeting with congressional representatives. It will take place over two and a half days and include sessions, networking opportunities, and a reception on Capitol Hill.
The document is a program for the 2016 ARTBA P3s in Transportation Conference. It includes schedules, speakers, sessions and sponsors. The conference will feature discussions on public-private partnerships in transportation, international best practices, federal resources for P3s, and perspectives from Congress, state legislatures and the transportation industry. It will also include breakout sessions on emerging P3 markets, project protections, research developments, and impacts of the FAST Act.
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Pema Khandu, born on August 21, 1979, is an Indian politician and the Chief Minister of Arunachal Pradesh. He is the son of former Chief Minister of Arunachal Pradesh, Dorjee Khandu. Pema Khandu assumed office as the Chief Minister in July 2016, making him one of the youngest Chief Ministers in India at that time.
1. NO. 14-1493
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
DUNNET BAY CONSTRUCTION COMPANY,
Plaintiff-Appellant,
v.
GARY HANNIG, in his official capacity as Secretary of Transportation
for the Illinois Department of Transportation, et al.,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CASE NO. 3:10-cv-03051-RM-SMJ
Honorable Richard Mills
AMICUS BRIEF OF AMERICAN ROAD AND
TRANSPORTATION BUILDERS ASSOCIATION
In Support of Plaintiff-Appellant
Dunnet Bay Construction Company for Reversal
Michael L. Shakman
Edward W. Feldman
Thomas M. Staunton
MILLER SHAKMAN & BEEM LLP
180 N. LaSalle St., Suite 3600
Chicago, IL 60601
(312) 263-3700
Nick Goldstein
Assistant General Counsel
AMERICAN ROAD AND
TRANSPORTATION BUILDERS
ASSOCIATION
1219 28th Street NW
Washington, DC 20007
(202) 289-4434
Attorneys for American Road and Transportation Builders Association
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
2. i
TABLE OF CONTENTS
Identity of Amicus, Its Interest in the Case and
Source of Its Authority to File the Brief ...................................................................1
Statement Required by Fed. R. App. P 29(c)(5)........................................................1
Argument ...................................................................................................................2
1. The Opinion applies a standard that would effectively eliminate
strict scrutiny review of an alleged unlawful quota and replace it with
a deferential standard when a contractor attempts to challenge a state
agency’s implementation of federal DBE goals...................................................3
2. The Opinion erodes the federal policy permitting waivers for
contractors who make “good faith efforts” to meet DBE goals...........................9
3. The Opinion applies an erroneous test of standing that denies a
contractor required to implement a quota system the right to
challenge the quota on equal protection grounds .............................................15
Certificate of Compliance ........................................................................................24
Certificate of Service................................................................................................25
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
3. ii
TABLE OF AUTHORITIES
Adarand Constructors, Inc. v. Penna, Secretary of Transportation, et al.,
515 U.S. 200 (1995)............................................................................................13, 18
Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411 (2013).....................................13
Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) ..................20, 22
Northeastern Florida Chapter of Associated General Contractors of America v.
City of Jacksonville, Florida, 508 U.S. 656 (1993) ......................................16-19, 22
Northern Contracting, Inc. v. Illinois Dept. of Transp.,
473 F.3d 715 (7th Cir. 2007).............................................................................4-8, 13
Ricci v. DeStefano, 557 U.S. 557 (2009)....................................................................3
Warth v. Seldin, 422 U.S. 490 (1975).................................................................18-19
W.H. Scott Constr. Co. v. City of Jackson, 199 F.3d 206 (5th Cir. 1999)...............21
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
4. 1
Identity of Amicus, Its Interest in the Case
and Source of Its Authority to File the Brief
The 6,000 members of the American Road and Transportation Builders
Association (“ARTBA”) include public agencies, private firms and organizations that
own, plan, design, supply and construct transportation projects throughout the
country. Many are small and/or family-owned. On the construction side, ARTBA’s
membership includes prime contractors, subcontractors and suppliers, some of
which are Disadvantaged Business Enterprise firms (“DBE”). Overall, the
transportation construction industry generates nearly $380 billion annually in U.S.
economic activity and sustains 3.5 million American jobs. ARTBA’s membership
structure includes nearly three dozen affiliated chapters, each of which takes a
major interest in planning and implementing the federal DBE program by the
recipient agencies in their states or regions. This Court’s review of the opinion
below will have an impact on how ARTBA’s members bid on construction projects.
ARTBA is authorized to file this amicus brief under Fed. R. App. P. 29(a) by
consent of all parties.
Statement Required By Fed. R. App. P. 29(c)(5)
ARTBA’s counsel authored this brief. ARTBA raised funds from several
chapters to pay the legal fees and the costs of preparing this brief. No other person
contributed money intended to fund preparing or submitting the brief.
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
5. 2
Argument
ARTBA files this amicus brief because several aspects of the trial court decision
granting summary judgment to the Illinois Department of Transportation (the
“Opinion”) make important changes in the law that would, if affirmed, harm the
American transportation construction industry and undermine the administration
of DBE goals:
1. The Opinion applied a deferential standard of review when a contractor
claims that a state has treated a DBE goal, required by federal law, as an unlawful
minority quota. If upheld, judicial review would turn on technical compliance with
goal-setting regulations rather than whether the goal had been unlawfully
converted to a quota.
2. The Opinion applied that same deferential review to a state agency’s
refusal to grant a waiver to a contractor who claimed to have made good faith, but
unsuccessful, efforts to meet the state’s DBE goal. A deferential standard of review
is contrary to case law applying strict scrutiny to race-based governmental
decisions. The decision adds uncertainty to review of waiver requests and allows
discrimination claims to be disposed of on an improper basis.
3. The Opinion denied standing to sue to contractors who seek to challenge
on equal protection grounds a state’s use of DBE goals as quotas in a manner that
causes otherwise qualifying bids to be rejected. It applied an erroneous theory of
standing under which contractors required to implement quota subcontracting to
obtain public works contracts lack standing to complain. Indeed, under this
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
6. 3
erroneous theory, in most cases prime contractors would have no standing to
complain about losing contracts due to an unlawful subcontractor quota system.
We discuss each point below.
1. The Opinion applies a standard that would effectively eliminate strict
scrutiny review of an alleged unlawful quota and replace it with a
deferential standard when a contractor attempts to challenge a state
agency’s implementation of federal DBE goals.
The federal DBE program seeks to encourage public contracting to DBEs, while
complying with Supreme Court decisions that generally bar racial or other quotas.
See Opinion of February 12, 2014 (“Opinion”) 65 (Dkt. #180, R.4434), quoting Ricci
v. DeStefano, 557 U.S. 557, 582 (2009) (citing prior authority). Underlying the DBE
program is a potential tension between the legitimate goal of encouraging increased
participation for all DBEs (businesses that are 51% owned by persons who meet the
definition of socially or economically disadvantaged) without violating the rules
against generalized use of racial or other quotas. The issue presented by this case is
likely to reoccur as state agencies, responding to political or other pressure, attempt
to maximize the participation of women and minorities (who are generally
presumed to be DBEs) in public works projects. The Opinion establishes an
erroneous standard of review that would, if upheld, effectively eliminate meaningful
judicial review of political manipulation of the DBE program by state agencies.
The Opinion correctly notes that “[a]ll entities receiving funds from [the Federal
Highway Administration] FHWA must have a DBE program which meets [federal]
requirements,” and correctly described the “non-mandatory, non-exclusive and non-
exhaustive actions” that may be used to determine if a contractor “took all
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
7. 4
necessary and reasonable steps to achieve a DBE goal. . .” Opinion 62-63 (Dkt.
#180, R.4431-32).
But then the district court went astray by misreading the leading decision in
this Circuit, Northern Contracting, Inc. v. Illinois Dept. of Transp., 473 F.3d 715
(7th Cir. 2007), as stating the sole, and very limited, basis for review of DBE
programs. The district court applied Northern Contracting even though that case
arose in a very different context that does not exist here. Its ruling would effectively
turn what should be strict scrutiny review into a deferential exercise of
administrative agency review. The district court concluded that because the Illinois
Department of Transportation (“IDOT”) complied with the federal guidelines for
how a state agency should determine its DBE goal, a low bidder who lost a contract
because it did not meet that goal could not challenge the loss on the ground that the
state agency had converted the goal to an unlawful quota.1
Based on its reading of Northern Contracting, the Opinion described the scope of
judicial review as follows:
A state entity such as IDOT implementing a congressionally
mandated program may rely "on the federal government's compelling
interest in remedying the effects of past discrimination in the national
construction market." . . . . In these instances, the state is acting as an
agent of the federal government and is "insulated from this sort of
constitutional attack, absent a showing that the state exceeded its
federal authority." [Northern Contracting] . . . at 721. Accordingly, any
"challenge to a state's application of federally mandated program must
be limited to the question of whether the state exceeded its authority."
1 As amicus it is not the ARTBA’s role to say whether a fact-finder presented with
the evidence Dunnet Bay assembled would find that DBE goals were converted to a
minority quota. But as Dunnet Bay argues in its brief (Dunnet Bay Brief passim),
the evidence was sufficient to permit a fact-finder to reach that conclusion.
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
8. 5
Id. at 722. Therefore, the Court must determine if IDOT exceeded its
authority granted under the federal rules or if Dunnet Bay's challenge
is foreclosed by Northern Contracting. [Opinion 65-66 (Dkt. #180,
R.4434-35); (italics added).]
The degree of deference afforded IDOT by the district court is evidenced by its
apparent determination that even if its goals operated as a de facto quota, IDOT did
not “exceed[] its authority” in refusing to award the Eisenhower Expressway project
to Dunnet Bay Construction Company because “IDOT did in fact employ a thorough
process before arriving at the [DBE goal] figure [of 22.2%].” It added:
Additionally, because the federal regulations do not specify a procedure
for arriving at contract goals, it is not apparent how IDOT could have
exceeded its federal authority. Any challenge on this factor fails under
Northern Contracting. [Opinion 67 (Dkt. #180, R.4436).]
As amicus, ARTBA is concerned that under this standard judicial review is
reduced to a deferential and mechanical determination focused solely upon whether
an agency could document compliance with federal regulations, even in the face of
significant evidence that a goal was applied as a quota. The district court appeared
at times to slide from deferential review to no review at all, by stating “it is not
apparent how IDOT could have exceeded its federal authority.” Opinion at 67 (Dkt.
#180, R.4436).2
Dunnet Bay presented evidence that representatives of the office of the Governor
of Illinois repeatedly stated that the DBE program was intended to increase
2
ARTBA’s concern is increased by the fact that the federal regulations only
describe various non-exclusive “methods a recipient [of federal funds] may use to
calculate DBE availability”, and thus do not provide definitive guidance even on
how to calculate goals. Northern Contracting, Inc. v. Illinois, 473 F.3d 715, 718 (7th
Cir. 2007).
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
9. 6
“minority” (not DBE) participation; the Governor’s office and IDOT officials publicly
stated that there was a no-waiver policy for failing to meet the goals for minority
participation (despite federal policy authorizing waivers); and the IDOT employee
with direct responsibility for DBE compliance concluded that IDOT was violating
the rules by manipulating the DBE guidelines. Opinion at 30-32, 34-36, 47-48, 50
and 52 (Dkt. #180, R.4399-4401, 4403-05, 4416-17, 4419 and 4421).
Instead of reviewing that evidence to determine if Dunnet Bay’s facts generated
an issue for trial on whether goals were treated as quotas, the district court
concluded that because “the federal regulations do not specify a procedure for
arriving at contract goals” IDOT could not have done anything wrong. Opinion at 67
(Dkt. #180, R.4436). That was a serious misapplication of Northern Contracting.
Nothing in Northern Contracting remotely suggests such a limited scope of
judicial review. In that case the Court confirmed that strict scrutiny was the
appropriate standard. 473 F.3d at 720. But the plaintiff’s claim in that case differed
significantly from the one Dunnet Bay presented in this case. In Northern
Contracting, the plaintiff challenged whether IDOT had followed the applicable
federal regulations in the three specific respects asserted by the plaintiff: failing to
calculate correctly the available number of DBEs in Illinois, failing to adjust DBE
goals for local market conditions, and failing to use race-neutral means to increase
DBE participation by awarding contracts to DBEs other than under the DBE
program. Id. at 722-23. Thus, the case was limited to whether IDOT followed the
guidance provided by non-binding federal regulations, with no suggestion that
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
10. 7
quotas were involved. In Northern Contracting, the Court’s focus was solely on
IDOT’s application of federal regulations. The case presented a straightforward
review of federal regulations and their application by a state agency.
This case is different. The facts presented by Dunnet Bay, if proven, would
establish that IDOT had imposed a quota system. Thus, even if review is “limited to
the question of whether the state exceeded its authority,” Northern Contracting, 473
F.3d at 722, the quota evidence answers that question in the affirmative. If there
was a quota, the state necessarily “exceeded its authority,” regardless of any
superficial showing of compliance with the regulations.
Moreover, unlike Northern Contracting, the dispute in this case is not over
whether “the state [did] exactly what the [federal] statute expects it to do.” Dunnet
Bay was not attempting “collaterally [to] attack the federal regulations through a
challenge to IDOT’s program.” Northern Contracting, 473 F.3d at 721-22. Dunnet
Bay did not allege that IDOT misapplied specific federal regulations by using the
wrong data, for example, to create a DBE goal. Rather, it alleged that the
Governor’s office directed IDOT to apply the DBE goals for the Eisenhower
Expressway contract as an illegal minority quota, with no waivers and no tolerance
for failing to reach the goal. Once substantial evidence was presented of an
unlawful quota system, judicial scrutiny was required to be strict and searching.
The district court should not have limited itself to the federal regulatory guidance,
but instead should have closely reviewed the evidence of the de facto quota system.
Had it done so, it seems very likely that it would have found that a genuine issue of
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11. 8
fact exists as to whether IDOT created a quota, which federal law prohibits absent
special circumstances.
Rather than deferring to a state agency’s application of federal regulations as
the limit of its review, the district court should have focused on whether there was
enough evidence presented by Dunnet Bay to generate a triable issue as to whether
the minority participation goals, as applied by the Governor and IDOT, were
effectively a quota.
Unfortunately, the district court misapplied Northern Contracting to allow
review only on a deferential standard to determine if IDOT “exceeded authority”
under non-binding federal guidelines. It also appears to have allowed that standard
to control or influence its determination whether IDOT had adopted an
impermissible policy against waivers of DBE goals. See Opinion at 69 (Dkt. #180,
R.4438) (“IDOT did not exceed its federal authority by adopting a no-waiver policy”).
A less deferential standard of review could have led it to conclude that a material
factual dispute exists on the quota claim, including whether IDOT effectively
employed a no-waiver policy as a means of implementing the quota.
ARTBA’s members, from time to time, litigate disputes with state agencies that
administer federal-aid construction contracts subject to DBE guidelines. The
approach that the district court took to judicial review of such disputes, if affirmed,
will harm members of ARTBA and others who engage in such litigation by denying
meaningful review of serious allegations, and relegating the judicial function to
evaluating technical compliance with non-binding federal guidelines, while
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12. 9
disregarding evidence that the “goals” were being manipulated to implement
unlawful quotas.
2. The Opinion erodes the federal policy permitting waivers for
contractors who make “good faith efforts” to meet DBE goals.
ARTBA members often bid as prime contractors on federal-aid transportation
construction projects. The federal rules for administration of the DBE program
recognize that, for legitimate market reasons, these prime contractors will not
always be able to meet DBE goals when bidding on projects. Prime contractors in
these situations are to provide documentation of their good faith efforts to meet the
goal and request a waiver from the state or local transportation agency in question.
There are federal guidelines addressing this waiver-granting process, although, as
noted, they are non-exclusive.
Waivers are a necessary part of the federal program requiring DBE participation
because of basic market realities. Within some geographic areas, there are in fact
not enough certified and available DBE firms, or an inadequate number of such
firms qualified and available to perform certain subcontracting disciplines needed
for a particular construction project. As administered by a state or local
transportation agency, a waiver process must be as objective and transparent as
possible. As participants in competitive bidding for a contract, ARTBA’s members
have a great interest in “playing by the same set of rules.” A subjective or
mysterious process for granting a good faith effort waiver severely undermines that
principle.
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13. 10
ARTBA’s members also pride themselves on providing maximum value for their
bids, which greatly benefits the project’s public owner-agency and the taxpayers. To
do so, prime contractors require as much certainty as possible in the bidding
process, including the prices of their subcontractors’ bids and the manner in which
public agencies will administer compliance for programs like DBE participation. A
prime contractor will interpret uncertainty in the waiver process as added risk and
therefore increase the overall price of its bid. Ultimately this will lead to more
expensive projects and less value for the taxpayers.
Even more importantly, a no-waiver rule also turns a goal-based DBE program
into a de facto quota. Consistent and fair administration of legally-proper waiver
principles is, therefore, important to ARTBA’s members.
In the face of substantial evidence to the contrary presented by Dunnet Bay, the
district court concluded that IDOT had neither a no-waiver policy nor a waiver
policy that was so difficult to meet that it operated as a de facto quota. The district
court granted IDOT summary judgment on the waiver issue. In reaching that
conclusion the district court appears to have mixed the question whether IDOT
applied a quota to Dunnet Bay’s bid with whether IDOT applied a quota to other
contractors on separate contracts. The district court resolved the issue factually by
concluding that because IDOT granted waivers to other contractors, it did not apply
a quota to Dunnet Bay. Opinion 68-69 (Dkt. #180, R.4437-38). 3 Dunnet Bay
3 It is important to note that the waiver the district court refers to was not
granted until March 4, 2010, after Dunnet Bay filed this case (Dkt. #1, R.25) and
IDOT had appeared (no Docket #, R.271). Opinion 69 (Dkt. #180, R.4438). In
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14. 11
discusses the evidence on the no-waiver issue and whether that evidence generated
a fact issue for trial. See Dunnet Bay Brief at 40-41. As amicus it would not be
appropriate for ARTBA to argue what the evidence showed.
ARTBA is concerned, however, that the district court’s treatment of the no-
waiver policy, including IDOT’s internal review of the issue, applied an erroneous
standard of review that, if affirmed, will adversely affect ARTBA members who may
seek judicial review of decisions by government agencies to deny waivers of DBE
goals.
Essentially, the district court deferred to IDOT’s internal review of the waiver
request when Dunnet Bay requested reconsideration of denial of the contract. The
district court deferred to William Grunloh, IDOT’s internal reviewer: “. . . a
reconsideration officer such as Grunloh has significant discretion and will often be
called on to make a ‘judgment call’ regarding the efforts of the bidder. “The Court is
unable to conclude that Bill Grunloh erred in determining Dunnet Bay did not
make adequate good faith efforts.” Opinion 72 (Dkt. #180, R.4441).
The district court so found despite substantial evidence from which a fact-finder
could conclude that a waiver should have been granted if there was not a quota.
That evidence included:
(a) Dunnet Bay, the low bidder, had (i) solicited hundreds of
DBEs via faxes and phone calls, (ii) attended pre-bid meetings
designed to provide outreach to DBEs, (iii) contacted appropriate
addition, the waiver was not on the contract on which Dunnet Bay had bid. Opinion
69 (Dkt. #180, R.4438).
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15. 12
minority and female organizations, and (iv) had a track record of
generating substantial DBE participation.
(b) Both IDOT and the court recognized that Dunnet Bay’s DBE
outreach efforts may have been impeded by IDOT’s failure to list
Dunnet Bay as a qualified bidder, thus discouraging DBE firms from
responding when Dunnet Bay sought DBE subcontractors.
(c) Dunnet Bay received ten quotes from DBE subcontractors
shortly after the bid opening on January 15, 2010; at least one of those
bids arrived late as a direct result of IDOT’s failure to list Dunnet Bay;
if Dunnet Bay had received those DBE subcontractor quotes earlier, it
would have almost tripled its DBE utilization.
See Opinion 19-20, 26 (Dkt. #180, R.4388-89, 4395).
Despite these facts and others, the district court upheld IDOT’s internal review
of the decision not to grant a waiver by applying the following reasoning:
The [federal] regulations refer to eight non-exhaustive factors
which can be considered in assessing good faith. . . .
The factors to be considered are non-mandatory, non-exhaustive
and nonexclusive. A contractor who does not meet the goals "must
show that it took all necessary and reasonable steps to achieve a DBE
goal." 49 C.F.R. § Pt. 26 App. A. Based on this standard, a
reconsideration officer such as [IDOT’s William] Grunloh has
significant discretion and will often be called on to make a "judgment
call" regarding the efforts of the bidder. Accordingly, it is not
surprising that another IDOT official might disagree with the decision.
The Court is unable to conclude that Bill Grunloh erred in determining
Dunnet Bay did not make adequate good faith efforts. Perhaps the
strongest evidence that Dunnet Bay did not take "all necessary and
reasonable steps to achieve a DBE goal" is that its DBE participation
was under 9% while other bidders were able to reach the 22% goal.
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16. 13
Accordingly, the Court concludes that IDOT's decision on
reconsideration of the rejection of Dunnet Bay's bid was consistent with
the regulations and did not exceed IDOT's authority under federal law.
[Opinion 71-72 (Dkt. #180, R.4440-41); italics added.]
The district court entirely missed the point of Dunnet Bay’s evidence. If
affirmed, its reasoning would permit a state agency to treat DBE project goals as
quotas so long as another bidder met the quota and the agency employed an
internal review procedure through which the agency’s reviewing officer was given
“significant discretion” to make a “judgment call” and rejected the complaining
contractor’s waiver request. If district courts review allegations that a state agency
has used an illegal quota by deferential review of the agency’s internal
reconsideration process, the strict scrutiny standard mandated by the Supreme
Court in Adarand Constructors, Inc. v. Penna, 515 U.S. 200 (1995), and applied by
this Court in Northern Contracting will have been eliminated.4
The district court’s reasoning is wrong for several reasons. First, the extent to
which Dunnet Bay took advantage of eight federally-approved but non-binding
techniques to recruit DBE firms, or others of its own invention, to line up DBE
firms is a different issue than whether IDOT administered the DBE program as a
quota. If the fact-finder accepts Dunnet Bay’s evidence on that issue to explain why
Dunnet Bay, the low bidder, did not get the contract, then Dunnet Bay’s good faith
4
As the Supreme Court recently stated, “[s]trict scrutiny is a searching
examination, and [it is] the government [that] bears the burden to prove that the
reasons for any racial classification are clearly identified and unquestionably
legitimate.” Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2419 (2013)
(citations and quotations omitted).
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17. 14
efforts or lack thereof would not change the fact that the program was being
operated as a quota. At the very least Dunnet Bay should be entitled to try to prove
to the fact-finder that under IDOT’s normal waiver practice it would have received
the waiver, and the contract.
Second, in the face of significant evidence that IDOT implemented a quota, the
district court should not have evaluated the agency’s reconsideration decision by
treating it as subject to “significant [agency] discretion” and to limit its inquiry to
whether “the rejection of Dunnet Bay's bid was consistent with the regulations . . .”
The correct approach would have been to resolve Dunnet Bay’s claim that IDOT
implemented the DBE program as a quota applying strict scrutiny, and only if that
claim were rejected should the agency’s internal decision be reviewed to determine
if Dunnet Bay did not make good faith efforts to recruit more DBEs.
Moreover, Dunnet Bay presented evidence to support its argument that the
reconsideration process was part of quota implementation. As the court noted, at
Opinion 27 (Dkt. #180, R.4396), Ms. Lyle, IDOT’s DBE compliance expert,
recommended after the reconsideration hearing that Dunnet Bay receive the waiver
and the contract. In these circumstances it was wrong to evaluate the waiver as if
the only question was whether the reconsideration officer abused his discretion.
ARTBA is also concerned with the consequences of the court’s third, and
apparently principal, reason for validating IDOT’s denial of a waiver – its
conclusion that the effectiveness of the DBE outreach goal was shown by the fact
that Dunnet Bay reached only 9% DBE participation while other bidders (and
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18. 15
Dunnet Bay on the rebid) reached 22%. In this case, the fact that a 22% “goal” was
achieved following public statements by IDOT and the Governor’s office that there
would be no waivers, and following the rejection of Dunnet Bay’s low bid for failing
to reach 22%, is fully consistent with the conclusion that everyone understood that a
quota was being applied and bidders had to meet the quota, whether lawful or not.
ARTBA is concerned that affirmance of the Opinion would set a bad precedent
by allowing an agency to insist on meeting a DBE “goal” and then asserting that
because the goal was met it proves the reasonableness of the goal, as opposed to
proving that the goal was really a quota.
3. The Opinion applies an erroneous test of standing that denies a
contractor required to implement a quota system the right to challenge
the quota on equal protection grounds.
An issue of great concern to ARTBA and its members is that the Opinion
effectively eliminates standing for prime contractor-members who are required to
engage in unlawful discrimination at the subcontractor level in order to prevent
rejection of their otherwise-qualifying bids.
The standing issue should have been straightforward. Dunnet Bay was the low
bidder for a $10 million contract. It alleged, and presented evidence, that IDOT
rejected its bid because of a DBE quota. It alleged that but for the allegedly
unlawful quota, it would have been awarded the contract. Therefore, it alleged a
$10 million harm directly caused by the application of an unconstitutional quota.
Standing is clear under controlling case law, and as a matter of common sense. In
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19. 16
Northeastern Florida Chapter of Associated General Contractors of America v. City
of Jacksonville, Florida, 508 U.S. 656, 663 (1993), the Supreme Court held:
The doctrine of standing is "an essential and unchanging part of
the case-or-controversy requirement of Article III," . . . . It has been
established by a long line of cases that a party seeking to invoke a
federal court's jurisdiction must demonstrate three things: (1) "injury
in fact," by which we mean an invasion of a legally protected interest
that is "(a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical," . . . .; (2) a causal relationship between the
injury and the challenged conduct, by which we mean that the injury
"fairly can be traced to the challenged action of the defendant," and has
not resulted "from the independent action of some third party not
before the court," . . . .; and (3) a likelihood that the injury will be
redressed by a favorable decision, by which we mean that the "prospect
of obtaining relief from the injury as a result of a favorable ruling" is
not "too speculative," . . . [internal citations omitted.]
Dunnet Bay alleged all three elements. It alleged that it would have been awarded
a specific contract but for IDOT’s quota. (Dkt. #1, R.33). It also alleged:
. . . [i]n that IDOT’s no-waiver policy results in a rejection of any bid
as non-responsive that fails to meet the contract goal despite evidence
of a bidder’s good faith efforts to do so, the 22% contract goal
constitutes an unlawful quota. [Dkt. #1, R.33.]
Dunnet Bay thus alleged a direct, concrete and particularized injury to it as a result
of a racial quota in the form of its loss of a $10 million contract. In the language of
Northeastern Florida, that was an “injury in fact” that was “causally connected” to
the quota; and it would “be redressed by a favorable decision.” Its allegations met
all the standing requirements specified by the Supreme Court. That should have
been the end of the matter. Nevertheless, the district court held that Dunnet Bay
lacked standing to complain. This Court should correct that error.
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20. 17
The district court went astray by misreading standing doctrine. It muddled
concepts of discrimination (which go to the merits) with concepts of injury (which go
to standing). The Opinion asserts that because IDOT did not treat Dunnet Bay
differently than the other contractors it was bidding against, it suffered no
competitive disadvantage in relation to its peers, which thereby defeated standing.
Opinion 74-75 (Dkt. #180, R.4443-44). But that is a merits argument (and a wrong
one), not a standing argument.
Standing is clear under Northeastern Florida (and many other cases) because
the three elements of injury, causation and redressability are met. Although
labeling its analysis as a standing inquiry, the district court essentially found
instead that no equal protection violation could have occurred because Dunnet Bay
and its competitors all operated under the same standard. That cannot be correct
where the standard itself is unconstitutional.
A hypothetical illustrates the point. Assume two contractors bid on a State
contract. The State erects an unconstitutional rule: it requires the contractors to
discriminate by engaging at least 22% minority subcontractors even though that
level of participation is not supported by market-based evidence. Contractor A is
low bidder but loses out to Contractor B because it did not meet the target. Under
the district court’s logic, no equal protection violation occurred because both
contractors were forced to play under the same rules, and Contractor B had no
“competitive advantage” over Contractor A. That is incorrect. Rigging the game
with an illegal rule constitutes the equal protection violation, regardless of whether
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21. 18
all compete on equal footing under that unlawful standard. The rule divides the
competitors into two classes: those willing and able to clear the illegal hurdle, and
those not. The injury (and, hence standing) results from the application of the
illegal hurdle to deprive Contractor A (Dunnet Bay) of the contract.
In reaching the contrary conclusion, the district court erroneously concluded that
“unequal footing” was the only means to establish standing. But that is only one
way to do so. One can also establish standing where there is equal footing under an
unequal standard. In Adarand Constructors, Inc., and Northeastern Florida, supra,
the Supreme Court held that a contractor may show standing based on an “inability
to compete on an equal footing in the bidding process, . . . .” Those cases did not
purport, however, to define the only road to standing.
Northeastern Florida’s discussion of Warth v. Seldin, 422 U.S. 490 (1975), made
that clear. In language that applies here, the Court stated that “[a]n allegation that
a ‘specific project’ was ‘precluded’ by the existence of or administration of [a
program], would certainly have been sufficient to establish standing.” 508 U.S. at
668. The Court made that statement in distinguishing Warth, where it had found
no standing for contractors to object to a town’s zoning ordinance that prevented
people of low and moderate income from living in the town. In Warth, the Court
based the lack of standing upon the fact that the contractors failed to identify any
contract that was lost. Warth was otherwise factually similar to this case: in both
cases the contractors were complaining that the government’s policy effected
discrimination against someone other than the contractor-plaintiffs.
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22. 19
The Supreme Court recognized in Northeastern Florida that the contractor-
plaintiffs in Warth would have had standing if they had alleged “that a ‘specific
project’ was ‘precluded’ by the existence of or administration” of the Town’s zoning
policy. The Court thereby answered the standing issue here. Dunnet Bay clearly
alleged that it lost the Eisenhower Expressway contract because IDOT converted a
goal into a quota that it could not meet. Under Northeastern Florida’s discussion of
Warth, that afforded standing for Dunnet Bay. To conclude otherwise would
eliminate any remedy for a contractor when a government program requires the
contractor to discriminate on the basis of race in awarding subcontracts. Such a
standing rule would make no sense and would frustrate the anti-discrimination
policies of the law and adversely affect ARTBA’s members.
Contrary to the Opinion at 74-75 (Dkt. #180, R.4443-44), the fact that Dunnet
Bay itself was not singled out because of the race of its owners, or that of its
competitors, defeats neither standing nor an equal protection claim. It suffered
injury in fact as a result of an unconstitutional minority-based quota. The State
engaged in discrimination and Dunnet Bay lost a contract as a result. Under the
Northeastern Florida-Warth analysis, that is sufficient to establish standing even
though the race of Dunnet Bay’s and its competitors’ owners was not a factor in the
decision.
Dunnet Bay’s injury was not limited to the loss of the contract (although that
loss was certainly sufficient to create standing). A corollary of the point made
above (about the rules of the game being unlawful) is that the unlawful rules force
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23. 20
one to violate the law in order to compete against other bidders. Dunnet Bay was,
therefore, also injured because the quota system forces contractors into a Hobson’s
choice: either become party to unlawful discrimination or lose your chance for a
contract.
Dunnet Bay essentially complained that because of IDOT’s de facto quota it
would have had to engage in discrimination itself in favor of some subcontractors
and against others on the basis of minority status to get the Eisenhower
Expressway contract. Courts have found standing where a government program
requires a contractor to discriminate, or attempt to discriminate, against others. In
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997), the court
stated:
Even if a general contractor suffers no discrimination itself, it is hurt
by a law requiring it to discriminate, or try to discriminate, against
others, on the basis of their ethnicity or sex. A person required by the
government to discriminate by ethnicity or sex against others has
standing to challenge the validity of the requirement, even though the
government does not discriminate against him.
That standard fits squarely to the facts alleged here: Assume that IDOT’s quota did
not discriminate against Dunnet Bay on the basis of its owners’ race or ethnicity, as
the district court concluded (erroneously, as discussed below). Nonetheless, by
denying Dunnet Bay standing the district court denied Dunnet Bay the opportunity
to prove that IDOT required it to discriminate against non-minority subcontractors.
Dunnet Bay has standing to challenge the quota under Monterey Mechanical
Co., supra. The district court was wrong to conclude otherwise. Under its approach,
prime contractors could never challenge government programs that require them to
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24. 21
use quotas to select subcontractors, unless they could prove they were directly
competing against a minority prime contractor. Because many ARTBA members
regularly bid for contracts and must select subcontractors for appropriate portions
of their work, they would suffer serious harm – lack of standing to sue – if the
district court’s reasoning were affirmed.
Even reading the standing requirement as the district court did – to require
direct competition by Dunnet Bay with DBE firms – Dunnet Bay’s allegations
should have afforded it standing. As the district court assumed (Opinion at 76, Dkt.
#180, R.4445), IDOT permitted general contractors that were DBEs to take
advantage of their status by performing a portion of the work directly. As a non-
DBE business, Dunnet Bay could not do the same and have it count as DBE work.
Thus, IDOT deprived Dunnet Bay of the right to compete for the contract on equal
footing with DBE prime contractors. See, e.g., W.H. Scott Constr. Co. v. City of
Jackson, 199 F.3d 206, 215-16 (5th Cir. 1999) (contractor denied the right to
compete on equal footing, and thus had standing to sue, where program permitted
DBE-qualified general contractor to use its own work to satisfy minority
participation goals and avoid good faith requirements).
The district court recognized this fact: “It is true that a hypothetical DBE might
not have had to subcontract work on the Eisenhower project, thereby providing it
with a competitive advantage over the other bidders.” But the district court
rejected the argument, stating that “Dunnet Bay has not pointed to another
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25. 22
contractor that did not have to meet the same requirements it did.” Opinion at 76
(Dkt. #180, R.4445).
Dunnet Bay was not required to prove that there was another contractor who
benefited from the challenged quota. For standing purposes, if an unlawful practice
or policy imposes a loss on the plaintiff, the plaintiff is not also required to show
who won from its loss, so long as it has a plausible basis to allege that it was the
loser. As the Court stated in Northeastern Florida:
When the government erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for another group, a
member of the former group seeking to challenge the barrier need not
allege that he would have obtained the benefit but for the barrier to
establish standing. The “injury in fact” in an equal protection case of
this variety is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the benefit.
508 U.S. at 666 [italics added].
Thus, both under Monterey Mechanical Co., which recognizes a contractor’s
standing to object when a government program requires it to discriminate among
subcontractors, and under Northeastern Florida, Dunnet Bay had standing.
Respectfully submitted,
American Road and Transportation Builders
Association
By: s/ Thomas M. Staunton
One of its attorneys
Dated: June 9, 2014
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
26. 23
Nick Goldstein
Assistant General Counsel
American Road & Transportation Builders Association
1219 28th Street NW
Washington, DC 20007
(202) 289-4434
Michael L. Shakman
Edward W. Feldman
Thomas M. Staunton
Miller Shakman & Beem LLP
180 N. LaSalle Street
Chicago, Illinois 60601
mlshak@aol.com
efeldman@millershakman.com
tstaunton@millershakman.com
312-363-3700
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
27. 24
CERTIFICATE OF COMPLIANCE
WITH FEDERAL RULE OF APPELLATE PROCEDURE 32
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
because this brief contains 6,402 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), as
modified by Seventh Circuit Rule 32(b), and the type style requirements of Fed. R.
App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Office Word 2010 in 12 point Century Schoolbook plain,
roman style font.
American Road and Transportation Builders
Association
By: s/ Thomas M. Staunton
One of its attorneys
Dated: June 9, 2014
Nick Goldstein
Assistant General Counsel
American Road & Transportation Builders Association
1219 28th Street NW
Washington, DC 20007
(202) 289-4434
Michael L. Shakman
Edward W. Feldman
Thomas M. Staunton
Miller Shakman & Beem LLP
180 N. LaSalle Street
Chicago, Illinois 60601
mlshak@aol.com
efeldman@millershakman.com
tstaunton@millershakman.com
312-363-3700
Attorneys for American Road and Transportation
Builders Association
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28
28. 25
CERTIFICATE OF SERVICE
I hereby certify that on June 9, 2014, I caused the foregoing to be electronically
filed with the Clerk of the Court for the United States Court of Appeals for the
Seventh Circuit by using the CM/ECF system. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
American Road and Transportation Builders
Association
By: s/ Thomas M. Staunton
One of its attorneys
Dated: June 9, 2014
Nick Goldstein
Assistant General Counsel
American Road & Transportation Builders Association
1219 28th Street NW
Washington, DC 20007
(202) 289-4434
Michael L. Shakman
Edward W. Feldman
Thomas M. Staunton
Miller Shakman & Beem LLP
180 N. LaSalle Street
Chicago, Illinois 60601
mlshak@aol.com
efeldman@millershakman.com
tstaunton@millershakman.com
312-363-3700
Case: 14-1493 Document: 14 Filed: 06/09/2014 Pages: 28