Federal Civil Rights Laws Protect LGBTQ Employees from Discrimination Nationwide. Funded Trading Accounts Are Security-Based Swaps Requiring Registration. DOJ to Bain: Turn Over the Documents!

• Author: Oran F. Whiting
• Pages: 9-9

++Federal Civil Rights Laws Protect LGBTQ Employees

from Discrimination Nationwide

++Funded Trading Accounts Are Security-Based Swaps

Requiring Registration

++DOJ to Bain: Turn Over the Documents!

U.S. SUP REME COUR T/

JUDICIARY

First Amendment Clause

In prior ruling s, the Court held the

ministerial exceptio n under the reli-

gion clauses of th e First Amendment

forecloses the ad judication of

employment discrimination claims

of Catholic scho ol teachers. The

exception bars minis ters from suing

churches and oth er religious institu-

tions for employment discrimination.

The ruling reversed the Ninth Circuit’s

reinstatement o f two cases, both f‌iled

by f‌ifth grade teac hers, against parish

schools for age a nd medical discrimi-

nation. Althou gh the teachers were

not ordained mi nisters, the Court

applied the exceptio n because the

teachers played a key role i n teaching

religion to their stu dents. Our Lady of

Guadalupe Sch ool v. Morrissey-Berru,

No . 19- 267.

Abortion

The Supreme Co urt held a state can-

not require all do ctors who perform

abortions to have admitting privileg-

es at a hospital withi n 30 miles. In a

5–4 ruling , the Court said the admit-

ting privileges r ule would do more

harm than good for pregnant women

because it woul d likely result in the

closing of all but on e of the state’s

abortion providers. The Court struck

down a nearly iden tical Texas law in

2016. June M edical Services v. Russo,

No. 18 -1323.

LGBTQ & Workplace Rights

In a 6–3 ruling, th e Court ruled fed-

eral civil rights l aws provide LGBTQ

employees nationwide protec-

tion from workplace discrimination.

Quoting the Civil R ights Act of 1964,

the Court determined employers may

not f‌ire or refuse to hir e employees

based on their ra ce, religion, sex, or

national origin, and determined that

discriminatio n based on sexual ori-

entation or gen der identity is dis-

crimination bas ed on sex. Bostock v.

Clayton County, No. 17-1618.

Bankruptcy

The Court gra ntedcertiorarion a

question that has greatly divided

circuit courts o f appeals—whether

an entity passively retaining posses-

sion of propert y in which a bank-

ruptcy estate has an i nterest has

an armative oblig ation under the

Bankruptcy Code’s automatic stay

provision,11U. S.C.§362, to return

that propert y to the debtor or trustee

immediately up on the f‌iling of the

bankruptcy petition.

Courts dis agree on whether a fail-

ure to act can cons titute a violation

of the automatic stay.The t wo sce-

narios in which thi s issue has arisen

are when a creditor ref uses to return

property that it properly repossessed

before the bankr uptcy petition was

f‌iled and when th e state, acting as a

creditor, knowingly retai ns a debtor’s

disputed taxes.T he Supreme Court

is set to resolve the circuit s plit con-

cerning this que stion.City of Chicago

v. Fulto n, No. 19-357.

JUSTICE DEPARTMENT

Civil Investig ative D eman d

The DOJ f‌iled a petiti on in the U.S.

District Cour t for the District of

Massachusetts to enforce consult-

ing f‌irm Bain & Com pany’s compli-

ance with the depa rtment’s Civil

Investigat ive Demand (CID) issue d

to third-part y Bain as part of its

AND MORE . . . BY HO N. ORAN F. WHIT ING (RET.), LITIGATION NEWS ASSOCIATE EDITOR

investigation of Visa , Inc.’s proposed

acquisition of Pla id Inc. The peti-

tion alleges Ba in has withheld impor-

tant documents demanded under the

CID, asserting unsupported claims of

privilege over the documents, there-

by stymying the Antitru st Division’s

investigati on.

The division see ks to enforce the

CID under sec tion 1314(a) of the

Antitrust Civil Pro cess Act. Through

f‌iling the petition, the department

seeks to enforce Ba in’s CID compli-

ance to support i ts investigation of

Visa’s proposed a cquisition of Plaid

for the benef‌it of A merican consum-

ers and competition.

SEC

From November 2017 to Ju ne 2020,

the SEC charged Traden et Capital

Markets Ltd., an I sraeli company, for

selling to over 5,0 00 investors pack-

ages of materials p urporting to edu-

cate investors about d ay trading, but

also paying investors a p ortion of net

prof‌its from simu lated trades con-

ducted in a fund ed trading account

provided as par t of the packages.

The SEC held the co ntracts pro-

viding funde d trading accounts were

security-bas ed swaps under the U.S.

federal secu rities laws; no registra-

tion statement ha d been f‌iled for

the swaps; the swaps we re not sold

through a nationa l securities ex-

change; and Traden et violated pro-

visions of the fede ral securities laws

concerning un registered oers and

sales of securit y-based swaps and re-

quiring that cer tain swap transac-

tions occur on a regi stered national

exchange. Witho ut admitting or de-

nying the f‌indings, Tradenet consent-

ed to a cease-and -desist order and

agreed to pay a penal ty of $130,000.

AMERICA N BAR ASSOCIATION WINTER 202 1 • VOL. 46 NO. 2 | 9

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