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District of Columbia’s Court of Appeals Adopts “Daubert” as Test for Expert Testimony

WLF Legal Pulse - Fri, 11/11/2016 - 12:12pm
Featured Expert Column: Judicial Gatekeeping of Expert Evidence By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP Nearly a century ago, in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the federal appeals court in the District of Columbia—the US Court of Appeals for the DC Circuit—announced the general acceptance […]
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Friday Finger on the Pulse: From Our Blogroll and Beyond

WLF Legal Pulse - Fri, 11/11/2016 - 10:55am
Class-action defendants can learn much from plaintiff-leaning law-review article on “statistical adjudication” after Tysons Food v. Bouaphakeo (Class Action Countermeasures) By the Justice Department’s own measure of success, its Foreign Corrupt Practices Act “pilot program” is failing (FCPA Professor) The case for why FTC, not FCC, should regulate internet privacy (Truth on the Market) The […]
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The Federal Circuit Must Now Decide the Fate of AIG’s Largest Shareholder

WLF Legal Pulse - Thu, 11/10/2016 - 3:53pm
*Michelle Stilwell, the Mary G. Waterman Fellow at WLF, significantly contributed to this post. In what is poised to become an extremely influential case, the US Court of Appeals for the Federal Circuit is currently deciding what to do after the federal government unlawfully took over the equity and leadership of one of America’s largest […]
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Commerce to Convene First Congressional Hearing on Augmented Reality

Expert witnesses testifying at the first congressional hearing on augmented reality will introduce to the committee the potential applications and policy considerations of this rapidly-developing technology.

Small Business Committee Leaders Fight for Medicare Payments to Small Laboratories

House Small Business Committee News - Thu, 11/10/2016 - 12:00am

WASHINGTON – House Small Business Committee Chairman Steve Chabot (R-OH) and Ranking Member Nydia Velázquez (D-NY) led a bipartisan group of lawmakers in asking Health and Human Services Secretary Sylvia Matthews Burwell to review new Medicare regulations that may harm small medical laboratories and the senior citizens they serve. The letter was signed by several members of the Small Business Committee in response to concerns over the Department of Health and Human Services implementation of the Protecting Access to Medicare Act of 2014 (PAMA).  

“We are concerned that under the process outlined in final regulations issued on June 17, 2016, many laboratories, especially small community and regional laboratories, may not have the necessary reporting capabilities in place,” the bipartisan group of lawmakers wrote in their letter. “These laboratories could struggle to properly report data and comply with the regulations, which could result in significant problems for CMS’ implementation efforts, as highlighted in a recent report issued by the Office of the Inspector General (OIG). In addition, the impact of these regulations could ultimately threaten the ability of small laboratories to provide needed services to Medicare beneficiaries.”

In their letter, Chabot and Velázquez emphasized the importance of small medical laboratories to small and rural communities across America. By jeopardizing Medicare payments for these small businesses and subjecting them to new penalties, the Committee leaders expressed concern that the facilities will be unable to continue to serve senior citizens who depend on them.  

You can read the full bipartisan letter HERE

Chabot, Velázquez Challenge OMB on Procurement Policy

House Small Business Committee News - Thu, 11/10/2016 - 12:00am

WASHINGTON - House Small Business Committee Chairman Steve Chabot (R-OH) and Ranking Member Nydia M. Velázquez (D-NY), wrote to the Office of Management and Budget criticizing the implementation of Category Management, a procurement policy that has been shown to negatively harm small businesses. 

“By moving ahead with its Category Management scam, OMB has decided to deny small businesses the ability to fully and fairly compete for federal contracts,” Chairman Chabot said. “I will continue to work with Ranking Member Velázquez and members of our Committee in a bipartisan manner to fight back against this destructive policy on behalf of American taxpayers and small businesses.” 

“Not only does Category Management lock entrepreneurs out of the federal marketplace, but it means agencies are paying more for goods and services, wasting taxpayer dollars,” Ranking Member Velázquez said. “I am proud to stand with small business contractors and join with Chairman Chabot in calling for an end to this harmful policy.”

The full text of the letter is below.

November 7, 2016

Ms. Darbi Dillion
Office of Federal Procurement Policy
Office of Management and Budget
1800 G Street NW
Washington, DC 20006

Dear Ms. Dillion:

We are writing this comment letter in our capacities as Ranking Member and Chairman of the House Committee on Small Business, which has jurisdiction over federal procurement matters that impact small companies.  We are alarmed that the Office of Federal Procurement Policy continues to move forward with Category Management despite its negative impact on not only small businesses but the agencies which use its contracting vehicles.

Earlier this year, we wrote a letter to Administrator Denise Turner Roth at the General Services Administration detailing the impact this strategy has had on small businesses.  In numerous hearings conducted by the Committee, we have found that though Category Management has been billed as the strategy that can get agencies the lowest price, all evidence points to the contrary.   Vendors on the Multiple Award Schedule (MAS) continually provide agencies with lower prices than those offered by Category Management contract holders.  Yet, agencies and contracting officers cannot take advantage of lower prices due to the fact that some Category Management vehicles have become mandatory by their agency. Ultimately, this results in wasteful spending of taxpayer dollars by agencies, forcing them to pay more than necessary for goods and services.  The proposed Circular will exacerbate this problem as it plans for mandatory vehicles government-wide.

Additionally, the contracting vehicles that have resulted from Category Management have reduced the overall number of businesses that have been able to compete for contracting opportunities.  Many of these vehicles have bundled so many goods together in one contract that previously qualified small businesses can no longer fulfill the requirements, despite having previously provided some of the goods or services under the MAS contracts. As a result, the number of small firms serving as suppliers to the government in certain areas has been reduced from hundreds to just a few handfuls.

This is worrisome for a number of reasons. First, it reduces competition between firms holding Category Management contracts, providing relatively little incentive to lower prices. Furthermore, the Category Management may reduce the industrial base as it is unclear whether firms not awarded a contract under Category Management vehicles will be able to keep their doors open.  With contracting officers and agencies forced to use Category Management contracts, many small firms will be excluded from the federal marketplace entirely, thus preventing robust competition that is needed to ensure agencies receive the best value for goods and services.

The issues of Category Management and strategic sourcing have been raised in numerous hearings before the Committee.  During these meetings, we have heard small businesses recount the severe and sometimes devastating impact these strategies have had not only on their bottom line and their employees but also their federal agency customers.  We have attached the transcripts of these hearings so that you may see the full impact these policies have on the small firms. 

Lastly, we would like to express our frustration at the process the Office of Federal Procurement Policy has used in soliciting comments for the proposed Circular.  Though this policy document will have far-reaching effects on businesses large and small as well as all federal agencies, your office decided to forego the customary 60-day comment period.  When Committee staff reached out your office to determine whether this period would be extended, they were told your office was working on a deadline and, as such, the November 7th deadline would stand.  This is simply unacceptable as many small businesses have not had opportunity to comment.  The process chosen has also not allowed for substantial analysis on the impact this policy could have on small business as no Regulatory Flexibility Act analysis occurred due to the nature of the change.  Furthermore, your office has not engaged in meaningful discussions with stakeholders as there has been no outreach done to either agencies or industry associations.

Therefore, we request that the Office of Federal Procurement Policy suspend any issuing of this proposed Circular until the office can evaluate the impact on small businesses.  Additionally, we request that the comment period be re-opened, allowing for more input from agencies as well as relevant industry stakeholders to be taken into consideration so as to ensure all businesses have access to contracting opportunities throughout the federal marketplace.


Steve Chabot

Nydia M. Velázquez                       
Ranking Member                                            


The New Era of “Daimler” Yields Confusion in the Lower Courts

WLF Legal Pulse - Wed, 11/09/2016 - 2:15pm
Prior to the US Supreme Court’s 2014 decision in Daimler AG v. Bauman, general jurisdiction existed over a business defendant in any state where it was incorporated, had its principal place of business, or its contacts were so “continuous and systematic” as to render them essentially at home in the forum state.  Under this expansive […]
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WLF Testifies at FDA Public Meeting on Off-Label Speech

WLF Legal Pulse - Wed, 11/09/2016 - 11:42am
Today, the US Food and Drug Administration (FDA) will hold a long-awaited public meeting to consider how off-label information about medicines can be shared with physicians. Washington Legal Foundation staff attorney Greg Herbers will testify at the meeting, which FDA has entitled “Communications Regarding Unapproved Uses of Approved Medical Products.” Since WLF’s landmark victories in […]
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Friday Finger on the Pulse: From Our Blogroll and Beyond

WLF Legal Pulse - Fri, 11/04/2016 - 11:03am
Be the boss, go to jail?: Responsible corporate office doctrine threatens C-suite executives with prosecution for unknown acts of employees (Corporate Counsel) Due-process arguments and state-court class actions (Class Action Countermeasures) The Supreme Court and laches: Reading into the SCA Hygiene oral argument (Patently-O) New York Court of Appeals finds unconventional litigation-financing agreement constitutes champerty […]
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Court Enjoins Implementation of Fair Pay Regulation

Office of Advocacy - Thu, 11/03/2016 - 11:11am

On August 25, 2016, the FAR Council published the final Fair Pay and Safe Workplaces final rule in the Federal Register.  The Department of Labor’s Office of Federal Contract Compliance Programs also issued guidance to accompany this rule. This final rule implemented E.O. 13673, which was intended to promote contracting efficiency by improving contractor compliance with basic labor standards during the performance of Federal contracts. The final rule contained an effective date of October 25, 2016. 

Categories: Latest News, SBA Advocate

WCOE-CA Chapter Hosts 2016 Leadership Summit

WCOE News - Tue, 11/01/2016 - 11:59am

On October 13th Swinerton Builders hosted WCOE-CA Chapter's Fall 2016 First Annual Leadership Summit in its San Francisco office. In addition to Swinerton Builders, the conference was also sponsored by the CA Department of General Services. This one day event was focused on promoting leadership and the development of management skills for women in the construction industry.

The speakers included Stephen Goveia of Madeira Ventures LLC, and Shelley Nilsen of Express Personnel. The keynote speaker was Dr. Addie Ellis of The Koci Group, an executive coach, inspirational leader, and motivational speaker who challenged attendees to never give up!

The afternoon session featured a distinguished panel consisting of SheriAnn Murphy of Swinerton Builders; Terri Mestas of AECOM; Joan Mayer of Lennar; Danetta Jackson of the CA Department of General Services; Demetra Edwards of KB Home; Danette Beck of Marsh; Alice Rodriguez of the California High Speed Rail Authority; and Brenda Radmacher, Esq., of Wood Smith Henning & Berman and the WCOE CA Chapter President.

The inspiring presentations included the topics of entrepreneurship, emotional intelligence, overcoming the myths of leadership, and understanding and managing generations in the workplace. The illustrious panel discussed what it looks like to be a leader as a woman in a male-dominated industry and included personal anecdotes, strategies, and insights for being a leader through use of setting one's own terms of meaning in one's work, framing of one's role as a leader, leading through connecting, engaging others to improve one's leadership impact, and energizing oneself to be a better leader.

Comments following the Leadership Summit include, "It was very refreshing to hear your experiences. I feel re-charged!"

"I came back with several take-aways that will help me to grow personally as a leader. I also enjoyed meeting all the women and networking."

WCOE-CA Chapter would like to express sincere thanks to Rick Moore V.P. of Swinerton Builders and his team for all the work and effort that went into coordinating this fantastic event and are extremely appreciative of Swinerton's support for women in the industry and for WCOE!

WCOE-CA Chapter and its members were thrilled to present this Leadership Summit as they work together to level the playing field for women in construction and look forward to doing it again next year.

Categories: Latest News

Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing

WLF Legal Pulse - Tue, 11/01/2016 - 9:55am
Guest Commentary By Grace Galvin, Washington Legal Foundation* Technology is constantly changing, and the Federal Communications Commission (FCC), like everyone else, feels the need to keep up with the times. The agency’s recent efforts to maintain its role as the core regulator of the communications sector, however, has gotten it into a bit of trouble. […]
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Colorado Supreme Court, Following US Supreme Court’s “Bauman,” Rejects Broad General-Jurisdiction Theory

WLF Legal Pulse - Mon, 10/31/2016 - 9:00am
Guest Commentary Marissa S. Ronk, an Associate with Wheeler Trigg O’Donnell LLP* The Colorado Supreme Court recently granted Ford Motor Co. “extraordinary relief” in overturning a trial court’s finding of general jurisdiction over Ford in Colorado. Magill v. Ford. In 2013, Plaintiff John Scott Magill was driving a Ford vehicle when he was hit by […]
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GSA Issues a Request for Proposal for the Ronald Reagan Building and International Trade Center

GSA news releases - Mon, 10/31/2016 - 12:00am
GSA issued a Request for Proposal (RFP) for an outlease interest in the International Trade Center (ITC) portion of the Ronald Reagan Building (RRB).

Friday Finger on the Pulse: From Our Blogroll and Beyond

WLF Legal Pulse - Fri, 10/28/2016 - 12:11pm
FCC privacy rule frowns upon arbitration, announces forthcoming rule to ban its use in Internet service provider-customer privacy disputes (Truth on the Market) Five takeaways from influential Duke Law Center for Judicial Studies conference on settlement of class actions (Class Action Countermeasures) DOJ’s settlement of two False Claims Act suits indicate impacts of Yates Memo […]
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Update: Northern District of Illinois Judge Puts Starbucks Serving-Size Class Action on Ice

WLF Legal Pulse - Thu, 10/27/2016 - 3:08pm
A September 7 WLF Legal Pulse commentary, Court Pours Cold Water on Unreasonable Serving-Size Class Action vs. Starbucks, discussed the US District Court for the Central District of California’s dismissal of a fraud suit alleging that Starbucks duped iced-drink consumers into purchasing a 12-ounce iced coffee/tea which, because it included ice, contained somewhat less than 12 […]
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Advocacy Background Paper 2009-2016

Office of Advocacy - Thu, 10/27/2016 - 11:12am

This Background Paper on the Office of Advocacy is a resource for stakeholders that includes a history of Advocacy and provides extensive reference materials. It is the most comprehensive single publication on the office and includes important new legislation, Executive Orders and special initiatives, with a focus on the accomplishments of the office from 2009 - 2016.

Categories: Latest News, SBA Advocate

Former Pixar executive joins GSA as Commissioner of the Technology Transformation Service

GSA news releases - Thu, 10/27/2016 - 12:00am
Rob Cook is excited at the chance to spur innovation and help transform government

Another Obamacare Shock

Education & the Workforce Committee - Tue, 10/25/2016 - 12:00am

House Republicans are working to provide Americans a Better Way when it comes to health care, recently putting forward a plan to deliver every American meaningful, patient-centered reforms. The White House, on the other hand, continues to tout the president’s unworkable health care law despite its harmful consequences for working families and younger Americans—consequences that just keep mounting. The latest disappointing news is health care premiums will increase sharply next year, rising an average of 25 percent in federal health care exchanges, and many individuals will have just one insurance provider to choose from. Bad news no matter how you look at it, but in a new editorial, the Wall Street Journal explains that the “headline number understates the extent of the trouble.” As we’ve said repeatedly, it’s time for a Better Way.

Another ObamaCare Shock
By Editorial Board

President Obama took a health-care victory lap last week in Miami, celebrating “all the progress that we’ve made in controlling costs” and portraying the law’s critics as “false and politically motivated.” Does that apply to the actuaries at the Health and Human Services Department too? On Monday they reported that ObamaCare premiums will soar 25% on average next year, and this is “progress” all right, in the wrong direction.

That headline number understates the extent of the trouble. Liberals used to dismiss insurance premium shock by saying that the subsidies will offset any increase and, anyhow, beneficiaries can shop around for a cheaper plan. But the 25% figure refers to the rate spike for the second-cheapest “silver” plan on each exchange from state to state, which is a key benchmark in the subsidy formula. In other words, these are the mid-level insurance plans that are performing the best, not the average increase of all ObamaCare coverage.

HHS also disclosed the premium jumps for a 27-year-old buying the second-cheapest silver plan in individual states. Our condolences for such young people in Arizona, where their premiums will climb by 116%. Likewise for Oklahoma (69%), Tennessee (63%) and Minnesota (59%).

In a normal election year, the presidential candidates might debate solutions, but, well, you know. For the time being, perhaps Mr. Obama could show a little more intellectual humility when confronted with evidence of his own failures. But, well, you know.

To read the editorial online, click here.

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