Blank Rome Partner David C. Kistler will be a panelist at the New Jersey Institute for Continuing Legal Education’s “Successful Federal Court Practice” program on Wednesday, October 11, 2017, from 9:00 a.m. to 1:00 p.m. EDT, at the New Jersey Law Center in New Brunswick, NJ. Continue reading “Successful Federal Court Practice”
New Jersey’s senior senator, Bob Menendez, is facing a dozen counts of bribery, conspiracy, and fraud charges in a corruption probe involving one of his close friends. The Democrat’s trial begins Wednesday in federal court.
Prosecutors at the Justice Department accuse Menendez of accepting lavish gifts in exchange for using his political influence to help friend and Florida eye doctor Salomon Melgen. Continue reading “Accused of Accepting Lavish Trips and Gifts, Sen. Menendez Goes on Trial”
On Sunday, August 20, Blank Rome Partner Judge Stephen Orlofsky provided the keynote address to Rutgers Law School first year law students at the Dean’s Reception and Welcome Ceremony in Camden. Judge Orlofsky’s speech expanded on the role of lawyers in our society and the Rule of Law, and that while those are unchanged since he attended the very same Dean’s orientation, one never knows where the law will take them. Continue reading “Blank Rome’s Judge Orlofsky Provides Keynote Address at the Rutgers Law Dean’s Reception and Welcome Ceremony”
In May 2017, Attorney General Jeff Sessions issued a memorandum to U.S. attorneys, ordering all federal prosecutors to “charge and pursue the most serious, readily provable offense” as a “core principle” of charging and sentencing policy. The memorandum defines the most serious offenses as “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
This policy represents a significant reversal of the comparatively lenient stance established by Eric Holder, one of Sessions’ predecessors under President Barack Obama, who had ordered federal prosecutors in 2013 to refrain from charging defendants with certain offenses that could see long mandatory minimum sentences.
Prosecutors will now be expected to recommend a sentence within federal guidelines when before a federal judge, and must disclose to the sentencing court all of the facts that impact the sentencing guidelines or mandatory minimum sentences. Recommendations outside of the guidelines will require a documented explanation, as well as approval from a U.S. attorney, assistant attorney general, or a designated supervisor. Deviations from the “core principle” of pursing the most serious offenses will only be granted if “justified by unusual facts.”
Attorney General Sessions made it clear that he wants this shift in policy to be immediate, noting that “[a]ny inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today.”
This article was originally published in the July 2017 edition of White Collar Watch. Click here to read the article online.
The single most frequently asked question by our international clients over the past several months is whether there will be changes in white collar prosecution priorities under the new administration, specifically with respect to the Foreign Corrupt Practices Act (“FCPA”). The FCPA, which criminalizes the payment of bribes to foreign officials around the world, has been subject to enforcement trends and scrutiny during its 40-year history. Prior to 2005, there were few notable prosecutions. However, over the past 12 years, the law has garnered much attention given the unparalleled increase in the number of prosecutions and the headline-grabbing monetary amounts of the settlements. This trend has straddled administrations from both sides of the aisle.
Of course, it is nearly impossible to answer the question posed directly with any degree of certainty. Venturing to do so would require reading tea leaves. However, there are certain indicia and reasoning that can guide our understanding of the direction that the new administration may be heading in.
The Third Circuit recently joined the growing consensus of courts recognizing that the First Amendment protects the act of recording police officers conducting their official duties in public. In Fields v. City of Philadelphia, — F.3d —, 2017 WL 2884391 (3d Cir. July 7, 2017), two individuals brought claims against the City of Philadelphia and certain police officers for violating their First Amendment rights to record public police activity. Continue reading “First Amendment Protects Right to Record Police Activity, Third Circuit Holds”
The Third Circuit Court of Appeals recently held that a single isolated use of a racial slur may be sufficient to establish unlawful workplace harassment.
Background and Analysis:
On July 14, 2017, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that a single racial slur may be sufficient to state a claim for unlawful workplace harassment.
In Castleberry v. STI Group, the plaintiffs—two African American general laborers working on a pipeline project—alleged that they were subjected to a hostile work environment when they were told by a supervisor that they would be fired if they “[n-word]-rigged” a fence that they had been instructed to remove. Defendants argued there was no precedent for a finding that a single racial epithet could be enough to create a hostile work environment. Judge Thomas Ambro, writing for the panel, rejected the defendants’ position, holding that the United States Supreme Court’s adoption of the “severe or pervasive” standard in harassment claims suggested that a “supervisor’s single use of a racial slur could be adequately ‘severe’ and sufficient to state a claim” for harassment.
The Third Circuit’s ruling clarified case law within the circuit (covering Delaware, New Jersey, and Pennsylvania) that has been somewhat in conflict for decades. Between 2001 and 2012, district courts within the circuit have used a number of different standards for determining whether a plaintiff has adequately pled workplace harassment. Some used the “severe or pervasive” standard, at least three used the “pervasive and regular” standard, and at least one case used the “severe and pervasive” standard. In its decision, the Court in Castleberry made clear that the proper standard for evaluating hostile work environment cases is whether the conduct is “severe or pervasive.”
In reversing the U.S. District Court for the Middle District of Pennsylvania’s dismissal of the plaintiffs’ claims, the Court held that the racially charged slur used in the presence of non-African American coworkers, coupled with threats of termination, could constitute sufficiently severe conduct that could result in the creation of a hostile work environment.
The Castleberry decision reminds employers that even a single isolated incident, such as a repugnant comment, can result in legal liability for discrimination or harassment. Employers should take affirmative steps to train employees, especially management personnel, that slurs and epithets based on any protected category (for example, race and/or color) are not appropriate in the workplace.
Employers should do the following:
- Clearly communicate through employee handbook policies that discrimination and harassment will not be tolerated, and ensure that all employees receive a copy of the handbook and sign an acknowledgement.
- Immediately and thoroughly investigate any complaints of discrimination (including harassment) and implement prompt remedial measures, which are designed to correct any prior issues and prevent similar conduct from occurring in the future.
- Periodically train all supervisors and employees regarding discrimination and harassment recognition and prevention.