Bernabei & Wachtel, PLLC

B&W Charitable Client, KindHearts, Settles with Government

bandw — Tue, 08 May 2012 00:51:26 +0000

Bernabei & Wachtel has represented KindHearts, an Ohio charity, since 2006, when the government began an investigation of it. Along with co-counsel from the ACLU, David Cole (Georgetown Law), and Fritz Byers (Toledo, Ohio), we were successful in obtaining a significant court ruling that the government had violated KindHearts’ constitutional rights when it investigated the charity and blocked the charity from carrying out its humanitarian projects. The government has now agreed to a settlement, under which the charity’s funds will be distributed to other charities, the charity’s creditors will be reimbursed, and the charity’s officers remain free to form a new charitable organization. This settlement was recently announced by the ACLU, and was widely covered, including by the Washington Post, Toledo Blade and the Charity & Security Network.

B&W Partners Named Top Attorneys in D.C. Area by Super Lawyers

bandw — Tue, 08 May 2012 00:40:34 +0000

Once again, the Super Lawyers has listed Lynne Bernabei, David Wachtel, and Alan Kabat as among the top attorneys in the Washington, D.C. area for employment litigation. Lynne was also listed as one of the “Top 100” lawyers in Washington, D.C., based on a vote by her peers. This was also published in the Washington Post, Magazine section (April 29, 2012).

Court Denies Georgetown’s Motion to Dismiss Age Discrimination Case

bandw — Wed, 28 Mar 2012 18:05:31 +0000

The U.S. District Court recently denied the motion of Georgetown University to dismiss the age discrimination claims filed by our client, Nicholas Spaeth. Mr. Spaeth has several decades’ experience in tax law, administrative law, and corporate law, arising from his extensive experience as general counsel for several Fortune 500 corporations, as well as Attorney General for North Dakota. He applied for a law school teaching position at Georgetown, but was turned down, in favor of younger, less-qualified applicants. The court’s decisionfound that Mr. Spaeth had properly pled his claims against Georgetown University. The decision was reported in the Legal Times blog , Thomson Reuters, and was discussed in a Bloomberg column by Michael Kinsley.

Lynne Bernabei Part of March 28th Arabesque Lecture Series at ADC

bandw — Thu, 22 Mar 2012 19:40:52 +0000

Lynne Bernabei will be a panelist at the latest Arabesque Lecture Series hosted by the American-Arab Anti-Discrimination Committee.

The lecture, titled “NYPD: The Community Under a Microscope”, will take place on March 28th, 2012, from 6:30 to 8 pm at the ADC Heritage Center. Panelists will discuss the NYPD’s actions, the legality of their actions, and its impact on the Arab-American community.

Other panelists include Sameera Hafiz, policy director at the Rights Working Group, and Ginger McCall, privacy rights attorney at EPIC.

Admission is free for ADC members, $4 for students, and $8 for general admission. The ADC is located at 1732 Wisconsin Ave, NW, Washington DC, 20007.

[UPDATE]
A summary of the talk, and a link to the video is now available.

Supreme Court Revives Appreciation for Electronic Privacy Rights

bandw — Thu, 22 Mar 2012 19:11:53 +0000

In a recent CCH Employment Law Daily article, David Wachtel comments on the case of nine whistleblower employees, doctors and scientists, who raised concerns about the effectiveness of the FDA’s process for approving medical devices. The Office of Special Counsel has opened an investigation into the allegations and there is a lawsuit pending, filed by the FDA employees.

A Washington Post story that broke the news of the FDA employees’ allegations, also prompted a letter from Senator Charles Grassley (R-IA) and Congressman Darrell Issa (R-CA) to the White House, calling for a thorough assessment of federal agency guidelines for the monitoring of employees’ personal email accounts.

The suit filed by the “FDA nine”, as they are referred to in the letter, alleges the FDA monitored their email without their knowledge, exploiting their findings to “fire, harass, or pass them over for promotion.”

Wachtel notes the letter from the congressmen echoes concurring opinions authored by Justice Sonia Sotomayor and Justice Samuel Alito in Jones v. United States, which addressed whether a warrant is required for GPS surveillance. In the concurring opinion, Alito wrote a “legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”

Wachtel says five Supreme Court justices (Sotomayor plus four who joined Justice Alito) support greater privacy protection for personal electronic activity. Likewise, the letter from the congressmen shows a “revived appreciation for privacy rights.” Sotomayor seems to differ from Alito in that she would find that protection under existing law.

The letter from the congressmen to the Office of Management and Budget Acting Director Jeffrey D. Zients can be found here.

“There’s already a public belief that private use of the internet and cellular technology is indeed private, and should be protected from employers, even when the employer is the government,” says Wachtel in the CCH article.

Whistleblower Client Profiled in LA Monitor

bandw — Wed, 25 Jan 2012 05:52:05 +0000

The Los Alamos Monitor (New Mexico) recently published three articles about Charles Montano, a former client of Bernabei & Wachtel. We represented him in his whistleblower case against the Los Alamos National Laboratory, which was owned by the U.S. Department of Energy and run by the University of California. While an auditor at the Lab, Chuck reported and protested numerous financial irregularities and related problems that led to the cover-up and wasting of large amounts of taxpayer funds. He also remains active in helping other whistleblowers at Los Alamos, including those who reported problems about radiation safety, the physical security of the lab, and environmental pollution issues, and he had worked on the successful class action lawsuits against Los Alamos in the 1990s.

Washingtonian Again Recognizes Lynne Bernabei and Dave Wachtel Among the Top Employment and Civil Rights Lawyers

bandw — Thu, 01 Dec 2011 14:55:11 +0000

The December 2011 issue of Washingtonian, in its survey of the top lawyers in the Washington, D.C. metropolitan area, listed Lynne Bernabei and Dave Wachtel among the top 17 lawyers who represent employees in employment discrimination cases (“Suing the Boss: Unjustly fired or the victim of harassment at work?”), and also recognized them among the top 16 civil rights lawyers (“Fight for your rights: gender, racial, religious, and other forms of discrimination are battled by these stars of the civil-rights bar”).

Indeed, only 3 other attorneys were listed in both categories. The Washingtonian has previously listed Lynne and Dave as top employment and civil rights lawyers in its earlier surveys.

David Wachtel Says PSU Coach McQueary Covered as Whistleblower

bandw — Tue, 15 Nov 2011 20:09:28 +0000

The York Daily Record recently interviewed David Wachtel for comment on the Jerry Sandusky quagmire at Penn State and how it relates to assistant coach of the football team, Mike McQueary. McQueary, a graduate assistant at the time, says he witnessed Sandusky sexually abusing a young boy in the shower in 2002. He reported the incident to his supervisor, head coach Joe Paterno.

“Pennsylvania has a whistleblower law for all its state employees and coach McQueary would certainly be covered,” Wachtel says in the article. “He made a good-faith effort to report the wrongdoing, so he would be a whistleblower.”

However, he is only protected under the whistleblower law if he did not accept anything in exchange for his silence on the matter. Penn State can not fire him for simply testifying before a grand jury, but they can fire him for poor handling of the incident in 2002.

McQueary is currently on administrative leave and it is said to be “indefinite”.

Lynne Bernabei Quoted on Herman Cain Harassment Controversy

bandw — Fri, 11 Nov 2011 03:15:37 +0000

Reuters recently quoted Lynne Bernabei on the controversy over the sexual harassment complaints against Herman Cain, a presidential candidate. Cain had denied knowing anything about settlements with former female employees.

Lynne explained that ordinarily someone in a position as prominent as Cain’s, who is head of the National Restaurant Association, would have known about the settlement of the claims, so it was unlikely that he would not have known. After this article was published, Herman Cain then admitted that he did know about the existence of the settlement agreements.

Lynne was also quoted on NPR’s “All Things Considered,” where she explained that the most recent allegations, if true, do “show a very upsetting view of women in the workplace,” in light of Mr. Cain’s statements that the allegations were false. Similarly, she was quoted in “GOOD,” a magazine devoted to social causes, in which she explained that a hostile work environment has to be both severe and pervasive to be illegal, and that a single incident of harassment was seldom illegal unless it was extremely serious, such as a rape or attempted rape.

Lynne Bernabei Interviewed for “Equality Matters” on White House Protests

bandw — Mon, 10 Oct 2011 21:53:32 +0000

The “Equality Matters” blog recently interviewed Lynne Bernabei as part of its investigation, “The Government Cracks Down on White House Protests – But Is It Legal?” The article discussed the allegation that the government engaged in selective prosecution of several protesters based on the content of their speech. Lynne explained that the White House emails showed that the White House and the prosecutors were trying to suppress the speech of those protesters, who were punished more harshly than other protesters. Lynne emphasized that security concerns alone should determine prosecutions of protesters, and not the content of their speech.