​​​​​​​​​​​The Latest Legal News & Industry Information

EPA Eases Pollution Enforcement
While Corporations Deal With Virus

     Law firms that represent corporations accused of pollution can expect the Environmental Protection Agency to ease up on enforcing its regulations during the coronavirus outbreak.
     An EPA memo last week said the agency would relax its enforcement of “routine monitoring and reporting obligations.”
     However, the corporations still must document their reasons for failing to fulfill pollution control requirements, minimize the effects and try to resolve the problems.
     The EPA said the policy shift responds to worker shortages and travel restrictions during the pandemic.
     Some of the complaints came from oil companies, chemical manufacturers and refiners who said they are struggling to get contractors and suppliers to job sites in areas under stay-at-home orders. The number of coronavirus hotspots is expanding this week, particularly in the New Orleans and Chicago areas.
     The health emergency also creates expanded opportunities for legal defense.
     Attorneys could argue that rule violations normally cited as willful or repeated should be downgraded to serious or other-than-serious because of their clients’ greater difficulty in complying.
     Examples can be found at oil wells and industrial facilities. Worker shortages and supply chain disruptions are making it more difficult for companies to do required air monitoring, collect samples and to do routine paperwork, according to the American Petroleum Institute.
     The EPA’s announcement drew criticism from environmental activists who said companies would use it as an excuse to pollute at a time the airborne coronavirus is spreading its lethal germs. They also cast doubt on the worker shortages.
     “It is not clear why refineries, chemical plants and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws,” says a statement from the Environmental Integrity Project.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240. 

Court Considers Option for Removing
Reporters’ White House Credentials

     The White House press corps is awaiting word from the D.C. Circuit Court of Appeals on whether they could lose their media credentials for unprofessional conduct.
     The court is weighing evidence in the case of a Playboy magazine correspondent who argued loudly with a former aide to President Trump during a press event in the Rose Garden last July.
     A Trump press secretary took away the credentials of reporter Brian Karem for 30 days after the argument.
     He filed a lawsuit in which he called the removal of his credentials a violation of freedom of the press under the First Amendment. The lawsuit names Trump and White House press secretary Stephanie Grisham as defendants.
     During the altercation, Karem insulted guests during the summit for social media influencers. He also challenged former Trump aide Sebastian Gorka to a fight.
     Karem’s attorney argued the reporter should not be punished for a rule violation when he had no advance notice from the White House about appropriate rules of conduct.
     The same attorney’s argument prompted a federal judge to restore Karem’s press pass in September.
     During oral arguments this week in the appellate court, a Justice Department attorney said a formal policy was unnecessary to inform reporters about proper behavior.
     “Every credentialed White House reporter, including Mr. Karem, knows perfectly well that they are not permitted to engage in unprofessional behavior on the White House grounds,” argued Justice Department attorney James Burnham. “There has always been an enforceable requirement that reporters with hard passes behave in a professional manner.”
     He said a formal list of rules was impractical because it would need to cover such a wide variety of behaviors, perhaps including sexually harassing staff, shouting racial slurs or mooning the president.
     The incident last July started when Karem shouted a question at the president as he departed. He did not answer but guests taunted Karem for his apparent rudeness.
     He responded by telling them, “This is a group of people who are eager for demonic possession.”
     Gorka then approached Karem quickly, telling him, “You’re not a journalist. You’re a punk!” The Playboy reporter challenged him to a fight before a Secret Service agent intervened.
     Karem’s attorney blamed Trump administration staff for contributing to the dispute. He said their demeanor created uncertainties about acceptable behavior. 
     “This unruly, raucous, circus-like atmosphere … President Trump, for better or worse, creates that sort of atmosphere,” said attorney Ted Boutrous.
     Judges Nina Pillard and David Tatel seemed to largely agree with the reporter’s attorney.
     Pillard called the idea of taking away press credentials from reporters who were given no notice of conduct rules “astounding.”
     “Of course it has to be announced in advance,” Pillard said.
     Judge Sri Srinivasan expressed concern that Karem’s bad behavior with no consequences for him might create an incentive for disruption by other White House journalists. He asked what should happen if reporters started “screaming and yelling ad nauseam, laced with profanity and epithets.”
     No date was announced for a decision by the U.S. Court of Appeals for the District of Columbia Circuit.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Price-Gougers Face a Crackdown
For Profiting on Coronavirus

     All three attorneys general in the Washington area are joining in urging companies that sell online to stop price-gougers trying to take advantage of consumers during the coronavirus pandemic.
     They are selling hand sanitizers, aerosol spray disinfectants, surgical masks and other devices designed to prevent the spread of germs at sometimes wildly inflated prices.
     One ad on eBay this week advertised a four-pack of 19-ounce Lysol spray for $175.99. 
     Letters sent last week by 33 state attorneys general to the chief executives of Amazon, Craiglist, eBay, Facebook and Walmart said they have “an ethical obligation” to stop the price-gouging.
     The Washington area attorneys general said they will not wait for the corporations. They are sending cease and desist letter to retailer and wholesalers they believe are trying to take advantage of consumers during the pandemic.
     In a first example, seven retailers received warning letters from the D.C. government last week. The letters accused them of dramatically raising their prices “in violation of District laws protecting consumers during natural disasters.”
     The letter gave them 24 hours to either lower their prices to levels before the coronavirus or give a reasonable explanation for what appeared to be price-gouging. Otherwise, they face unspecified “further action” by prosecutors.
     Retailers who received the warning letters included:
     Northwest D.C. convenience stores. One store increased prices on 72-count packs of generic brand disinfecting wipes to $8.99 and 100-count packs of latex gloves to $15.99. Another store raised the price of 16-ounce bottles of rubbing alcohol to $9.99.
     A Southeast D.C. convenience store. The store doubled the costs for bottled water and marked up the price for Lysol to $19.99.
     A Southeast D.C. beauty supply store. The store raised the price for eight-ounce bottles of hand sanitizer to $15.00, and sold both individual face masks and pairs of latex gloves for $1.99 each—even though a 100-count pack of latex gloves typically sells for under $5.00. 
     An online Amazon seller. The D.C.-based seller on Amazon raised prices far above the acceptable limit on several products. It included nearly doubling the cost of dispensing stands for sanitizing wipes, nearly tripling prices on bulk packs of hand sanitizer and more than quadrupling the cost of touch-free foam hand sanitizer dispensers.
     The Maryland, Virginia and D.C. attorneys general joined 30 others nationwide last week in demanding that major retailers like Amazon, Craigslist, eBay, Facebook and Walmart put a stop to price-gouging. They mentioned hand sanitizers and disinfectant aerosol sprays as examples.
     The letter urged the companies to heed their “ethical obligation and patriotic duty to help your fellow citizens in this time of need by doing everything in your power to stop price gouging in real time.”
     At the federal level, the Justice Department is preparing to prosecute profiteers, particularly online vendors of fake coronavirus cures and businesses that hoard medical supplies to resell them at dramatically inflated prices. 
     Attorney General William P. Barr said he is organizing a task force to prosecute persons illegally stockpiling scarce medical supplies.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Justice Dept. Warns of Prosecution
For Making Coronavirus Threats

     The Justice Department is advocating terrorism charges against anyone who intentionally infects or threatens other persons with coronavirus.
     Deputy U.S. Attorney General Jeffrey A. Rosen circulated a memo to federal prosecutors last week that warned against “the purposeful exposure and infection of others with COVID-19.”
     The memo cited laws that ban biological agents as weapons or sources of threats.
     “Because coronavirus appears to meet the statutory definition of a ‘biological agent,’ such acts potentially could implicate the Nation’s terrorism-related statutes,” Rosen wrote.
     So far, there is no evidence of anyone intentionally infecting someone else.
     However, there have been threats reported.
     In Freehold, N.J., state prosecutors charged a 50-year-old man with making terroristic threats after he coughed on a grocery store worker and told her he had coronavirus.
     In Warren County, Mo., a 26-year-old man is being prosecuted after he posted an online video of himself licking items on Walmart store shelves and saying, “Who’s scared of coronavirus?”
     In Hanover Township, Pa., a woman was arrested after playing a "twisted prank" at a grocery store by purposefully coughing on about $35,000 worth of food that had to be thrown out. She led supermarket workers to believe she might have coronavirus as she coughed on meat, produce and bakery products.

D.C. Bar Cautions Lawyers
On Diligence During Pandemic

     The District of Columbia Bar’s ethics committee is warning lawyers that their duties to their clients continue despite the coronavirus pandemic that is shutting down many law firm operations.
     An advisory issued by senior legal ethics counsel Saul Jay Singer lists four ongoing responsibilities.

Lawyer Becomes Ill:
     Lawyers who might get sick should have succession plans ready that allow other lawyers to take over their legal representation. It should include plans for promptly communicating with clients and taking action to protect their rights and cases. Even large firms that have other lawyers available to take over a representation on short notice should develop a contingency plan for handling cases if there is a mass lawyer incapacity or unavailability.

Client Becomes Ill:
     Not only is coronavirus reducing personal contact between lawyers and clients, it might also make lawyers less aware of their clients’ health status. Attorneys might want to ask clients to disclose developing health issues to them to prepare for possible continuations, waivers of appearances or requests for remote attendance.

Working Remotely, a Confidentiality Issue:
     Lawyers’ duties under D.C. Rule 1.6 to maintain a client’s confidences and secrets could become more difficult while working remotely or at nontraditional sites. As a result, they must carefully consider the confidentiality of their policies. Some obvious basics include protecting computer systems and physical files and ensuring that telephone and other conversations and communications remain privileged.

Diligence in a Constantly Changing Situation
     Lawyers must be diligent in monitoring how coronavirus is affecting court closings and orders on filings, appearances and statute of limitations tolling. The altered procedures still are evolving, possibly creating delays, increased costs in international transactions, client solvency issues and financial risks for entire industries.
     For ethics inquiries, contact the D.C. Bar Legal Ethics Helpline at 202-737-4700 ext. 1010, or ethics@dcbar.org.

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