Litigation

Title VII's Protections Don't Extend That Far—4th Circuit Says Review and Copying of Confidential Files Not Protected Activity

December 4, 2018
By Paul W. Mengel III
Catherine Netter, a 19-year employee of the Guilford County, N.C., Sheriff's Office, believed a disciplinary sanction she received in 2014, which impeded her ability to be promoted, was motivated by discrimination. Netter, who is African-American and Muslim, felt that other similarly situated officers who were neither African-American nor Muslim had not been disciplined in a similar manner, so she filed complaints with the Equal Opportunity Employment Commission ("EEOC") and the Guilford County Human Resources Department.
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Recent Maryland Case Is a Reminder to Employers to Review the Language of Their Offer Letters, Employment Contracts, and Employee Manuals

November 14, 2018
By Matthew E. Feinberg
The vast majority of states are at-will employment states, which means that an employer may terminate an employee for a good reason, a bad reason, or any reason at all, so long as the basis for termination does not violate a statute or public policy of the state. In Maryland, Virginia, the District of Columbia, and a number of other states, an employment relationship is strongly presumed to be at-will. Thus, even when the employee signed an employment contract, so long as that agreement did not establish a specific period of employment or limit the employer's ability to terminate the employee, the at-will employment doctrine provides substantial protection to employers when employees attempt to challenge their termination in subsequent litigation.
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The Climb to Enforce Your Teaming Agreement in Virginia Has Gotten Steeper

October 25, 2018
By Paul W. Mengel III
A few years ago, we wrote about the likely effect of a case commonly called "Cyberlock" on teaming agreement enforceability in Virginia. Cyberlock Consulting, Inc. v. Info. Experts, Inc., 939 F. Supp. 2d 572, 580 (E.D. Va. 2013), aff'd, 549 F. App'x 211 (4th Cir. 2014). While decided in the U.S. District Court for the Eastern District of Virginia, Cyberlock looked to Virginia state court precedent for its conclusions on the enforceability of the teaming agreement at issue. As we noted at the time, the Cyberlock court relied on the well-established principle under Virginia law that an agreement to negotiate in good faith to reach certain stated objectives within an agreed framework will be construed as an agreement to agree, rather than a valid contract. This was despite the teaming agreement stating that, in the event of an award, the defendant, Info Experts, Inc., expressly agreed to execute a subcontract to provide a specified percentage of the anticipated work to Cyberlock Consulting, Inc. Critical to the court's analysis were the facts that the teaming agreement called for the negotiation and execution of a future subcontract and that the allocation of work in that future subcontract might change from what was set forth in the teaming agreement. Thus, the court concluded that such language "was not meant to provide a binding obligation but rather to set forth a contractual objective and agreed framework for the negotiation of a subcontract in the future along certain established terms." Cyberlock, at 939 F.Supp. 2d 581.
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Contractor Who Brought Lawsuit Against Government Faces False Claims Act and Fraud Counterclaims

August 23, 2018
The U.S. Court of Federal Claims ("COFC") recently issued an opinion that should give pause to contractors who seek to bring suit against the U.S. government but have not complied with materially relevant government regulations. In LW Construction of Charleston, LLC v. U.S., a government contractor filed suit against the Department of Veterans Affairs ("VA"), alleging that its contract for a construction project at Fort Jackson National Cemetery was wrongfully terminated. The procurement under which LW Construction of Charleston ("LW") had been awarded the contract had been set aside for service-disabled veteran-owned small businesses ("SDVOSB"). Three years after LW filed suit, the government brought counterclaims alleging that LW was not an eligible SDVOSB.
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False Claims Act Cases Involving Set-Aside Contracts Held to More Stringent Requirements Following Escobar

June 28, 2018
Two years have passed since the U.S. Supreme Court issued Universal Health Services, Inc. v. United States ex rel. Escobar, a key False Claims Act ("FCA") case that resolved a circuit court split regarding the scope and validity of the implied false certification theory and established that the materiality standard for FCA cases is "demanding." Since that time, lower courts have been implementing those standards to varying effects. The trend has been favorable for companies facing FCA cases that allege false certifications related to qualifications to participate in socio-economic contracting programs.
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