All Administrative Law Posts
All administrative law posts from Tollefsen Law
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Note our disclaimer – these materials are no substitute for legal advice. The articles may be out of date, be incomplete, contain errors, or not be relevant to the fact situation you are researching. Do not rely on the information found on this website to make a legal or business decision.
by Justin Tollefsen | Apr 5, 2016 | Administrative US, Administrative WA, Attorneys, Blog, Business Law, Corporate Law DL, Entrepreneurship, Regulatory Compliance, SEC, Securities Law WA, Securities US, Tollefsen Law
Regulatory penalties can be devastating for a company, yet many companies, especially small companies, fail to plan for or devote resources to regulatory compliance. These companies can be confused and incredulous when they become the focus of investigations or sanctions and may delay responding until their very existence is at stake. Proper counsel can help companies understand regulators’ focus which helps them to prepare for and address compliance issues in a timely manner.
by Justin Tollefsen | Nov 14, 2014 | Administrative WA, Attorneys, Blog, Constitution WA, Employment Law WA, Tollefsen Law, Washingon State
Commission’s Back Pay Award Exceeded Its Authority
by John J. Tollefsen | Sep 2, 2014 | Administrative WA, Blog, Employment Law WA, Washingon State
Under Washington Public Records Act redactions must violate right to privacy Identifying employee not highly offensive Case Opinion: 140826-West-v-Port-of–Olympia West v. Port of Olympia, 2014 Wash. App. LEXIS 2097 (Wash. Ct. App. Aug. 26, 2014) Arthur West appeals the trial court’s dismissal of his Public Records Act (PRA) claim against the Port of Olympia. West’s claim is based on the Port’s redactions of a Port employee’s name, job title, job duties, and other identifying details from an investigative report relating to unsubstantiated allegations of governmental misconduct made against that employee. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee’s right to privacy. We assume without deciding that the employee’s identity constituted personal information and that the employee had a privacy right in his or her identity in connection with the allegations. However, we hold that the Port’s redactions violated the PRA because disclosure of the identifying information would not be highly offensive to a reasonable person and therefore would not violate the employee’s right to privacy. Accordingly, we reverse the trial court’s dismissal of West’s PRA claim. In addition, we award attorney fees to West on appeal and remand to the trial court to award West his attorney fees and costs below and to determine whether a statutory penalty is...
by John J. Tollefsen | Aug 28, 2014 | Administrative WA, Blog, Consumer Protection WA, Washingon State
Gray v Suttell & Associates (Supreme Court WA, Aug 28, 2014) Copy of the Opinion: 140828 WSC Gray v Suttell Over a thousand collection lawsuits were filed in the name of the purchaser of the debt. The Supreme Court held that was unlawful if the buyer did not have a debt collection license from Washington State. The court included the following industry analysis in its opinion. Since the enactment of the WCAA, the debt collection industry has grown and changed to keep up with the increasing amount of consumer delinquent debt. TheFederal Trade Commission noted that ‘”[t]he most significant change in the debt collection business in recent years has been the advent and growth of debt buying.”‘FED. TRADE COMM’N, THE STRUCTURE AND PRACTICES OF THE DEBT BUYING INDUSTRY (2013) (alteration in original) (quoting FED. TRADE COMM’N, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE 13 n.1 (2009)). Although a relatively new industry, by 2007, the debt collection industry employed over 200,000 people and reported annual revenue of $58 billion from consumer collections. RICK JURGENS & ROBERT J. HOBBS, NAT’L CONSUMER LAW CTR., THE DEBT MACHINE, HOW THE COLLECTION INDUSTRY HOUNDS CONSUMERS AND OVERWHELMS COURTS 5 (201 0). A “debt buyer” is an entity or individual that purchases delinquent or charged-off debts from a creditor, usually for a fraction of the face value of the debt, and then takes some action to collect on those claims. H.B. REP. on SUBSTITUTE H.B. 1822, at 2, 63d Leg., Reg. Sess. (Wash. 2013). There is growing concern that collection practices employed by debt buyers are harmful to consumers. A legislative staff summary of public...
by John J. Tollefsen | Aug 26, 2014 | Administrative US, Blog, Qui Tam US, Securities US, Whistleblowing US
The False Claims Act provides that ¨Any employee who is discharged; or demoted; or suspended; or threatened; or harassed; or in any manner discriminated against is entitled to bring an action for reinstatement with same seniority; 2 times back pay with interest; special damages; emotional distress; attorneys’ fees and costs. No punitive damages are available. An “employee” includes: temporary worker; and demoted worker; and discharged worker. An independent contractor is not an employee. A false claims act whistleblower should expect harassment in the form of counterclaims filed in the retaliation action; industry blackballing; unprovable but real retaliation; reassignment for ostensibly unrelated reasons; other non-compensatable harassment; possible losing the case; and paying attorney fees and costs if the retaliation case is deemed frivolous. More on False Claims Act Whistleblower Protection Washington State False Claims Act Qui Tam (False Claims Act) procedure False Claims Act...
by John J. Tollefsen | Nov 1, 2012 | Administrative US, Blog, Environment, Federal Law, Securities US, Whistleblowing US
The Importance of Being Earnest: An Environmental Whistleblower’s Guide to Protection Under SOx § 806 and Dodd-Frank By John J. Tollefsen 1The author practices law in Oregon, Washington, and New York. He has been lead counsel on several SOx § 806 cases including Tides v. The Boeing Co., 644 F.3d 809 (C.A.9, Wash. 2011), cert. den. 132 S.Ct. 518 (2011) and Reid v The Boeing Co., 2009-SOX-27 (ARB Mar. 30, 2012). The Sarbanes Oxley Act of 2002 (“SOx”) § 8064SOx § 806 is codified as 18 U.S.C. § 1514A(a)(1).protects certain employees who reasonably believe they are reporting a violation of a law, rules, or regulation listed in § 806. Their belief must be subjectively and objectively reasonable.2E.g., Tuttle v. Johnson Controls Battery Div., 2004-SOX-76 (ALJ Jan. 3, 2005), an ALJ explained: “Protected activity is defined under SOX as reporting an employer’s conduct which the employee reasonably believes constitutes a violation of the laws and regulations related to fraud against shareholders. While the employee is not required to show the reported conduct actually caused a violation of the law, he must show that he reasonably believed the employer violated one of the laws or regulations enumerated in the Act. Thus, the employee’s belief ‘must be scrutinized under both subjective and objective standards.’ Melendez v. Exxon Chemicals Americas, 1993-ERA-6 (ARB July 14, 2000)”. The employee must earnestly and sincerely believe in good faith that there is a violation. The courts and administrative law judges (“ALJs”) have been generally hostile to § 806, adding additional barriers to recovery with the result that few claimants have been protected. This paper argues that claims under...
by John J. Tollefsen | Aug 23, 2012 | Administrative WA, Blog, Employment Law WA, Washingon State
Washington Labor and Industries Disputes Appeal of Washington Labor and Industry Assessment A major cost for Washington employers is the hourly charge imposed by Washington State’s Department of Labor and Industry (Workers’ Compensation). For manufacturing and construction businesses, the rates exceed $1 per hour. The calculation of L & I is a complex process requiring expertise. Often Washington employers make errors on their L & I forms – sometimes paying excess fees and sometimes not paying all that is due. The Department of Labor and Industry regularly audits Washington employers. Surprisingly, their audits can also contain errors. Also, if there is a question of interpretation or an alternative calculation possible, Washington L & I tends to take the position that results in the highest cost and penalties to the employer. What should you do if you are facing an audit by Washington State’s Department of Labor and Industry? First, make sure you are working with a professional who is knowledgeable in the L & I process. Hire an experienced accountant or consultant. It is preferable that the consultant or accountant has the experience of previously working for Washington’s L & I agency. It is important you do not delay. You have only 30 days after you receive the Notice and Order of Assessment to ask for reconsideration. Hire the professional before the field audit is conducted by Labor and Industry. Even if you have failed to file the proper reports with the agency, a qualified consultant can save money far in excess of the cost of obtaining the assistance. What if you need to appeal a Notice and Order...
by John J. Tollefsen | Jun 24, 2010 | Administrative US, Blog, Business Law, Fraud, Qui Tam US, Securities US, Whistleblowing US
The traditional name for cases which attempt to recover money defrauded from the king is “Qui Tam” litigation. Qui Tam is pronounced “kee tam” or “kway tam”) and is an abbreviation from the Latin “qui tam pro domino rege quam pro sic ipso in hoc parte sequitur” meaning “who as well for the king as for himself sues in this matter.” History of Qui Tam Laws in the United States Qui tam legal actions can be traced back as far as 13th Century England where they were used by private citizens to gain access to the king’s court. The U.S. legal system, derived from the British system, allowed qui tam actions since the nation’s founding in 1776. They were rare. During the Civil War, Congressional hearings investigated widespread instances of military contractor fraud including defective products, substitution of inferior material, and illegal price gouging. At the urging of Abraham Lincoln, a former practicing lawyer, Congress enacted the Civil False Claims Act in 1863 as a weapon to fight procurement fraud. This law has also been known as the “Lincoln Law” and the “Informer’s Act.” The False Claims Act was designed to entice whistleblowers to come forward by offering them a share of the money recovered. Even though this Act was enacted to combat military contractor fraud, it was applicable to all government contractors, federal programs and any other instances involving the use of federal revenue. The Act allowed any person to act as a “private attorney general” and sue for recovery of the money taken. The named plaintiff on the action is the United States Government. The one filing...
by John J. Tollefsen | Apr 24, 2010 | Administrative US, Blog, Business Law, Qui Tam US, Securities US, Whistleblowing US
Qui Tam Legal Theories Used in Litigation Some of the more common theories used to prosecute False Claims Act cases are: 1.) Violations of Contract Provisions: “[P]arties that contract with the government are held to the letter of the contract – irrespective of whether the contract terms appear onerous from an ex post perspective, or whether the contract’s purpose could be effectuated in some other way – – under the maxim that ‘men must turn square corners when they deal with the Government.'” “[T]he mere fact that the item supplied under the contract is as good as the one contracted for does not relieve the defendants of liability” if the item does not in fact conform to the express contract terms. Failure to comply with: Military Specifications (MIL-SPECS): Specific Military Standards for processes and designs usually incorporated into military contracts for equipment. Failure to Test: Many government contracts call for items to be tested in a specific manner. Often items are tested in a less strenuous manner, the tests are manipulated so the item passes, or the item is not tested at all. Failure to Inspect: Contracts with the government often require specific inspections to be performed at certain intervals in the manufacturing process. 2.) Procurement: Any false certification that items furnished under a contract with the government are “of the quality specified and conform in all respects with contract requirements, including specifications . . . .” constitutes an FCA violation. Such certifications are often required on documents submitted to the government for payment. 3.) Engineering Changes and Pricing: When a government contractor wants to alter the design of...
by John J. Tollefsen | Sep 26, 2009 | Administrative US, Blog, Securities US, Whistleblowing US
Sarbanes Oxley Whistleblower Protection Deficient The Sarbanes Oxley Act (“SOX”) provides protection for certain whistleblowers of public companies who report violation of SOX, mail fraud, wire fraud or SEC law and have a reasonable belief there is a violation.1See Section 806 of SOX. It was designed to prevent another Enron. The whistleblower only has 180 days after the retaliation to file a complaint with OSHA. 806 (b)(2)(D). The initial results have been dismal. Sox protection poor: “The Wall Street Journal reported on September 4 [2008] that out of 1,273 complaints filed with the Department of Labor under this whistleblower protection provision since 2002, the government has ruled in favor of the employee only 17 times and has dismissed 841 cases. Many of these cases have apparently been dismissed on the grounds that the employee worked for a corporate subsidiary, because the Department takes the position that subsidiaries are not covered by the statute. * * * . . . [W]e can clearly state that it was by no means our intention to restrict these important whistleblower protection to a small minority of corporate employees or to give corporations a loophole to retaliate against those who would report corporate fraud by operating through subsidiaries.” From September 9, 2008 letter from Senators Patrick Leahy and Charles Grassley to Secretary of Labor Elaine Chao. The Labor Department started allowing whistleblowers to attempt to prove that the subsidiary they worked for was an “agent” of the public company. Tollefsen Law has litigated several SOX whistleblower cases. The brief we filed requesting a Writ of Certiorari in the United States Supreme Court covers the...
