NERA
Study Re-affirmed Valid
Tool in Illinois
DOT Case
A “custom census” and
expert trial testimony conducted by NERA Vice President Dr. Jon Wainwright is
a valid and legally defensible tool for determining the number of
Disadvantaged Business Enterprises (DBEs) in a particular area and evaluating
the effects of discrimination, according to a January 8th
ruling by the U.S. Seventh Circuit Court of Appeals. The court affirmed the
trial court’s judgment that the Illinois Department of Transportation’s DBE
plan was constitutional in Northern Contracting, Inc. v. Illinois
Department of Transportation.
In 2000, highway
contractor Northern Contracting, Inc. (NCI) filed suit against the Illinois
Department of Transportation (IDOT) over its DBE program, which promotes a
level playing field for socially and economically disadvantaged businesses in
federally assisted transportation projects. The lawsuit challenged the
constitutionality of the federal DBE program regulations as well as IDOT’s
application of those regulations. IDOT commissioned Dr. Wainwright to develop
evidence relevant to the DBE program, including a custom census of DBE
availability, and to present expert trial testimony in court.
Dr. Wainwright developed a
custom census to provide an accurate calculation of the current relative
availability of DBEs, employing an innovative six-step analysis that
identified the appropriate geographic market for IDOT’s contracting activity.
NERA’s analysis also included estimations of the degree to which minority and
women firms’ formation rates and earnings from those firms were depressed by
discrimination, resulting in an estimate of DBE availability in a
non-discriminatory market.
In 2005, the District
Court for the Northern District of Illinois ruled in favor of IDOT,
extensively relying upon Dr. Wainwright’s testimony and NERA’s research. NCI
appealed, in part arguing that IDOT miscalculated the number of DBEs by
relying on NERA’s custom census instead of a simple count of the number of
certified DBEs.
The Court of Appeals
rejected the argument, noting, “The NERA custom census reflects an attempt by
IDOT to arrive at more accurate numbers that would be possible through use of
just the list.” The Court re-affirmed the earlier decision that IDOT’s fiscal
year 2005 DBE program “was narrowly tailored to the compelling interest
identified by the federal government – remedying the effects of racial and
gender discrimination in the highway construction market.”
“We are very pleased that
another federal court has found our work to meet strict constitutional
scrutiny and federal regulations,” said Dr. Wainwright. “With highly qualified
experts and proper economic and statistical methods, it is possible to have a
legally defensible affirmative action program.”
Founded in 1961 as
National Economic Research Associates, NERA Economic Consulting is an
international firm of economists who understand how markets work. NERA is a
leading provider of studies related to historically disadvantaged business
enterprise. These studies evaluate goals established by federal, state, and
local governments, and help public agencies to develop effective and lawful
affirmative action programs for procuring goods and services from businesses
owned by minorities and women.
To learn more about NERA’s
services and experience in employment and labor visit
www.nera.com/employment_labor.
NASA Loses Legal
Battle
Over Small Business Data
The National Aeronautics
and Space Administration (NASA) has lost an 18-month legal battle with
California-based American Small Business League (ASBL), forcing NASA to
provide detailed information that proved the agency had exaggerated its small
business contracting statistics for 2002, 2003 and 2004.
The ASBL filed the suit in
San Francisco federal court after NASA refused to comply with a Freedom of
Information Act request as well as a second formal appeal for information
that revealed billions of dollars in contracts that NASA had reported as going
to small businesses actually went to many of the nation’s largest defense and
aerospace contractors, such as Lockheed Martin and Boeing.
Federal law mandates a
minimum of 23 percent of the total value of federal contracts and subcontracts
be awarded to small businesses. However, since 2003, 13 federal investigations
have found federal agencies and prime contractors like NASA have allowed
billions in federal small business contracts to wind up on the desks of
corporate giants. Even though some of the federal investigations revealed
fraud was responsible for this diversion, Congress has failed to enact any
legislation to stop it.
Based on information
obtained through its legal campaign and the Freedom of Information Act, ASBL
president Lloyd Chapman estimates that over $200 million a day in federal
small business contracts are actually going to the top two percent of firms in
the US.
“I plan to file several
more federal law suits against the SBA, NASA, General Service Administration
and the Department of Defense to uncover the blatant fraud, abuse and
corruption that has been allowed to go unchecked in federal small business
contracting programs,” said Chapman.”
Minimum Wage Increase to
Bring New Challenges for Employers
As the new federal minimum
wage law works its way through Congress on the way to the President’s desk,
employers should prepare now for the consequences – a higher payroll for some,
possible employee cutbacks for several and changes in mandatory posting
requirements for all.
On January 10, the House
of Representatives overwhelmingly passed and sent to the Senate a bill that
increases the federal minimum wage from the current $5.15 an hour to $7.25, in
three steps over 26 months.
Numerous interests have
urged the Senate to incorporate tax cuts, especially for smaller companies,
into the legislation before sending it to President Bush in the next four to
six weeks.
Begin Making Your
Preparations Now
If the bill is signed into
law, employers will have to pay special attention to their mandatory minimum
wage postings, say the experts at
Sunrise,
Flordia-based G.Neil Corporation.
“Employers who don’t post
the most recent labor law posters, such as minimum wage, risk government fines
and increase the likelihood of employee lawsuits,” says attorney Ashley
Kaplan, head of the labor law research team at G.Neil. “Once the new law
passes, employers may need both a state and a federal minimum wage poster,
depending on what state or states you do business in.”
She notes that in 2006,
more than a dozen states increased their minimum wage rates, and another 15
increases are pending.
“So, if your state hasn’t
experienced a rate increase recently, it probably will soon,” Kaplan adds.
“While we watch what happens with the bill in the Senate, you should prepare
to update your federal and perhaps even your state labor law postings.”
How Many
New Minimum Wage Posters
Will You Need?
If the Senate retains the
26-month phase-in of the new federal minimum wage, employers may have to
obtain one, two or three new federal posters, Kaplan notes, depending on the
procedural rules of the Department of Labor. Thus, Kaplan says, employers
should keep up to date on this topic and have a plan of action for posting
compliance, beginning today.
“If you have a proper plan
in place, you can keep your labor law posters in compliance, and protect your
company from the risk of fines, penalties and even costly lawsuits,” she says.
Sunrise, Florida-based
G.Neil provides continual labor law posting research, federal and state labor
law posters, plus an annual subscription service that guarantees compliance
and protection against fines.
For more information or to
request a catalog, call toll-free 1-800-999-9111 or visit
www.gneil.com.
Trial Solutions
Acquires
Discovery Law
Trial Solutions, an
established player in the nationwide online document hosting, electronic
discovery and trial consulting services market announced that it has acquired
Discovery Law, an emerging leader in the US wholesale litigation support
services market.
The Company reported that
Discovery Law has been its national distributor for ImageDepot, Trial
Solution’s industry-leading online review software, and the two companies have
been successfully partnering for the past three years with Discovery Law
handling large-scale coding projects, nationwide production coordination and
project management through its National Alliance Network of litigation support
service providers.
“With the tremendous
success our companies have had working together, merging our organizations was
the next logical step in the partnership,” says Brad Jenkins, President
and CEO of Trial Solutions.
“We provide the software
development and support for ImageDepot, along with specialized services such
as large-scale data conversion and trial support, while Discovery Law offers
national marketing and production coordination through its nationwide alliance
network and high volume coding services,” added Jenkins.
“We have been working with
Trial Solutions for three years with each of us supporting one another behind
the scenes,” states Clint Lehew, Managing Partner of Discovery Law.
“As Trial Solutions’
national distributor of ImageDepot we have handled most of their multi-city
national production requirements and coding for their large-scale projects,”
added Lehew.
“Merging our organizations
will now allow us to more efficiently leverage the resources of both of our
organizations to become an even more dominant player in the national
wholesale litigation support market,” added Lehew.
Trial Solutions reports
that both Discovery Law and Trial Solutions will continue to operate under
their respective names. Clint Lehew, Managing Partner of Discovery Law will
become the Vice President of Partner Relations and Strategic Alliances for
Trial Solutions and will continue to oversee the day-to-day operations of
Discovery Law.
Founded in 2004, Discovery
Law (at www.discoverylaw.com) is an emerging leader in the US wholesale
litigation support services market with a National Litigation Support Service
Bureau Alliance network of over 30 partners with 92 locations throughout the
United States and Canada. In conjunction with its national alliance network,
Discovery Law provides a full range of litigation document management services
including litigation document coding and indexing.
Trial Solutions, founded
in 2002, provides a full range of litigation support services, including
electronic discovery, online hosting and attorney document review staffing
through helping to present a case with trial consulting and multi-media
presentations. Since its founding, litigation support providers and law
firms alike have counted on Trial Solutions’ software and services to reduce
the total cost of discovery for their clients. More information about Trial
Solutions can be found on its Website at
www.trialgraphic.com.
Maguire Joins InternetBar.org Board
Amelia (Mel) Rea Maguire,
Esq., of Coral
Gables, Florida has
been elected to the InternetBar.org Board of Directors. InternetBar.org is
the world’s first online bar association.
InternetBar.org was
established to serve as a catalyst and convener of excellence for
systematically advancing the rule of law in cyberspace and altering
substantially current legal practice paradigms in the virtual world.
InternetBar.org seeks to
create ethical ways for lawyers, jurists and courts to collaborate in trusted
meeting spaces and to shape the online justice system in the evolving virtual
world. In a hyper-connected world, InternetBar.org is dedicated to
supporting individuals and businesses seeking and expecting access to legal
information, cross cultural knowledge and alternative dispute resolution
online.
Through its many
connections, InternetBar.org promotes widespread global collaboration,
provides the highest quality education and training and undertakes
sophisticated outreach.
Maguire specializes in
corporate, finance, government and regulatory matters and advice on business
transactions. She has a wealth of experience representing the State of
Florida and private clients in the international practice of law. Jeff
Aresty, President of InternetBar.org, said, “Mel brings special insight to
the InternetBar.org Board because of her experience with national client
practice for two large multi-national law firms, in conducting trade missions
on behalf of the State of Florida and in international exchanges sponsored by
the American Bar Association, Harvard Kennedy School Women’s Leadership Board
and several law school professionals’ exchange programs. We are thrilled that
she has agreed to serve on our Board.”
Other members of the
founding Board of Directors include Ken Vacovec, Esq., Vacovec
Mayotte and Singer, Boston, MA; Donald DeAmicis, Esq., Ropes and
Gray, Boston, MA; Professor Peter Gerhart, Esq., Case Western
Reserve University School of Law, Cleveland, OH; Vedia Jones-Richardson,
Esq., Olive and Olive, Durham, NC; Hongxia Liu, International
Development Law Organization, Sydney, Australia; Ramon Mullerat, Esq.,
Barcelona, Spain; Vincent Polley, Esq., Dickinson Wright,
Bloomfield Hills, MI; Ordelio Sette, Esq., Azevedo Sette
Advogados, Belo Horizonte, Brazil; James Silkenat, Esq., Arent Fox, New
York, NY; Joseph Vrable, Esq., Capital Risk Management, Framingham, MA;
and Susan B. Waters, EDM, Sextant Consulting, Inc., Half Moon Bay, CA.
Members of
InternetBar.org have cutting-edge education and training on how to practice in
cyberspace legally, ethically, safely and successfully. They collaborate
across cultural and national borders and have the opportunity to be trained to
use Internet communications technologies.
The Massachusetts Bar
Association co-sponsors InternetBar.org’s courses offered through its
Institute. Featured discussions moderated by Tamar Frankel,
Professor of Law at
Boston University, provide
members the opportunity to discuss the ethical and implications of legal
cases and their impact on trust, as well as the reputation of corporate
entities in the court of public opinion.
