Education Counseling, Litigation and Investigation Services
Practice Contacts: Michael E. Baughman, Matthew Dolan, Leslie M. Gomez, Barbara W. Mather, Benjamin F. Scotti, Gina Maisto Smith, Angelo A. Stio, III
Pepper Hamilton LLP and Freeh Group International Solutions, LLC (FGIS) are uniquely positioned and experienced in assisting universities, colleges, private secondary schools and other education-related institutions in navigating the complex regulatory and legal environment that face these institutions and leveraging that knowledge in conducting internal investigations and reviews. The combination of Pepper and FGIS brings together a team of lawyers and former federal and state law enforcement officials who have deep knowledge of education law, and the skill and resources to conduct independent, confidential compliance reviews and investigations, counsel boards on best risk management solutions, and, when necessary, defend against litigation threats.
Pepper and FGIS have worked together for several years on compliance, investigations and risk counseling matters, including complex investigations and related work for university clients. In 2012, the Honorable Louis J. Freeh, former Director of the Federal Bureau of Investigation (FBI) and federal judge and the founder of FGIS, joined Pepper along with the lawyers of his firm Freeh Sporkin & Sullivan, LLP. Pepper also acquired FGIS. FGIS is a global risk management firm providing service in the areas of business integrity and compliance, safety and security, and investigations and due diligence. The management team of FGIS includes a former judge and senior law enforcement officials, a former university general counsel, legal consultants, and security and compliance experts.
The Pepper team also includes lawyers with deep knowledge of education law and corporate governance, highly experienced litigators, and former federal and state prosecutors, all with significant experience advising education institutions in connection with a variety of threats. Our team provides high quality and responsive legal services and information to institutions of higher education. Pepper lawyers also serve on the boards of educational institutions.
Combined, Pepper and FGIS offer unparalleled experience to education clients in:
- counseling on athletic department compliance with NCAA and regional athletic conference rules and requirements, and investigating allegations of misconduct and noncompliance
- advising on board governance and oversight of institution management, and advising institutional management on effective risk management programs and policies;
- investigating allegations of sexual abuse or harassment, student/faculty misconduct, criminal matters, discrimination, financial improprieties, violations of federal and state regulations, safety and security problems, and numerous other issues;
- counseling on institutional compliance with federal and state laws, including the Clery Act, Family Educational Rights and Privacy Act, Title IX, Title VII, the First Amendment, charitable immunity acts, and disability laws;
- counseling and advising university boards on the Internal Revenue Code, executive compensation and endowment issues;
- advising on the wide range of day-to-day legal issues that confront today’s educational institutions, from labor and employment to construction, intellectual property, procurement, and student affairs issues;
- serving as an independent monitor for institutions that are subject to a consent decree or court order requiring oversight of their compliance efforts;
- counseling on admissions policies and procedures, including revising policies in the wake of the U.S. Supreme Court’s ruling in Fisher v. University of Texas;
- creating, revising and implementing compliance programs, disciplinary codes, and policies on such topics as athletic department compliance, safety and security, student-faculty relations, sexual harassment, hazing, drug and alcohol abuse, and off-campus behavior; and
- defending educational institutions against inquiries from the Department of Education, and civil and criminal litigation.
The experience of Pepper and FGIS is broad and deep. The following are areas of frequent concern to colleges and universities where our team has particular depth and experience.
Athletic Compliance and Investigations
College and university athletic departments must comply with a wide array of federal, state, and NCAA and regional conference rules and regulations. In the area of athletic compliance and investigations, the Pepper and FGIS team offers the following services:
Preventative Athletic Compliance Program Review
Our team, which includes NCAA compliance subject matter experts, a former university general counsel, a college board member, a former university athletic department administrator and highly experienced university attorneys, can:
- evaluate the current state of the athletic compliance office and the effectiveness of the staff, processes and procedures;
- identify gaps between existing policies and actual compliance practices, and recommend the enhancement of its athletic compliance program;
- assess the student-athlete culture;
- review the current athletic department programs and processes, as well as programs operated by third parties, such as youth athletic summer camps on campus;
- provide training on risks faced by athletic departments administrators and student athletes, including anti-harassment and sexual assault policies required under Title IX; and
- assess the university’s internal investigative resources and approaches, including its ability to monitor and investigate incidents related to “high-profile” student-athletes, coaches and other personnel.
Remedial Athletic Compliance Program Review
Our team can provide the same services enumerated above to recommend specific ways to address any issues identified by the NCAA, a regional conference or an institution’s internal investigation.
We conduct confidential, internal investigations on behalf of university clients specifically targeted to areas of concern. In addition, by conducting interviews, reviewing records and taking other investigative measures, we can develop a factual record for the benefit of university counsel and staff who are preparing for a legal dispute or an NCAA or regional conference infractions hearing.
Board Governance and Institutional Risk Management
Effective governance and oversight of the university administration is a critical function for university boards. Pepper and FGIS are experienced in assessing board governance and risk management policies and procedures, and recommending improvements to conform with best practices. Issues we are experienced in examining include:
- size, composition and governance of the board, including the independence of trustees/board members
- ethics and conflicts of interest policies for board members, including guidelines for conflicts management and ethics training requirements
- board committee structures to ensure frequent and robust examination of legal, audit, compliance and risk management issues
- oversight of the president, general counsel, chief compliance officer and other senior administrators
- review, revision and implementation of disciplinary codes, compliance programs and institutional policies and procedures regarding issues such as sexual harassment, hazing, drug and alcohol abuse, faculty-student relations, non-student minor protection, and off-campus behavior.
Regulatory and General Counseling
Pepper serves as general outside counsel to colleges and universities, counseling on a wide range of regulatory issues and day-to-day legal matters. For example, our attorneys have provided extensive advice on compliance with the Clery Act, the Family Educational Rights and Privacy Act (FERPA) and other federal and state laws that apply to educational institutions. Pepper has provided counseling and advice on drafting and complying with policies and procedures dealing with Title IX of the amendments to the Higher Education Act and the Department of Education’s April 2011 “Dear Colleague Letter,” as well as extensive advice on student conduct policies and discipline proceedings. Other areas where Pepper frequently provides advice include First Amendment issues, tenure and promotion, student claims, disciplinary procedures, the application of antitrust laws to educational organizations, and tax and contract issues.
Patents and Other Intellectual Property
Pepper is highly experienced in assisting colleges and universities in evaluating and protecting their innovations and other intellectual property, and in moving IP from the research lab to the marketplace. Pepper counsels educational institutions on patent assessment and prosecution; copyright and trademark registrations; technology transfer; IP portfolio management; due diligence investigations; IP audits; domestic and international IP protection; licensing; rights clearances; IP litigation; and a host of other IP matters.
Pepper has a leading national practice in construction litigation, with significant experience for educational institution clients. The firm is highly experienced in advising colleges and universities on construction project management and in resolving construction disputes. Pepper helps negotiate, draft and render advice concerning design and construction contracts for a number of colleges and universities. FGIS also is highly experienced in investigating construction fraud and similar allegations of misconduct.
Pepper and FGIS attorneys are experienced and capable in serving as monitors of organizations that are subject to a government or accreditation body consent decree or a court order requiring oversight of their compliance efforts. Our personnel have been tasked with serving as monitors for numerous organizations, including educational institutions.
Procurement is a frequent trouble area for colleges and universities. Most educational institutions have policies and procedures governing the procurement process, but all too often those policies are not rigorously followed. Many institutions rely on internal audits to find wrongdoing and deter potential procurement fraud. FGIS and Pepper are experienced in going beyond traditional audits to uncover the facts behind suspected fraud.
Our personnel, who include a former university general counsel who implemented corrective action in response to numerous financial reviews and audits, are experienced in conducting a thorough review of existing policies and procedures; assessing the “tone from the top” and general compliance culture at the institution; training employees on ethics and fraud prevention; implementing strong anti-fraud controls; investigating and uncovering instances of fraud; and working with law enforcement to prosecute offenders.
Safety and Security
FGIS provides educational institutions with leadership and expertise regarding the development and implementation of effective safety and security programs. From an assessment of existing security measures and campus police to the planning of security for high-profile events, our team can assist in efforts to protect our clients’ students, employees and facilities.
FGIS approaches each engagement as a collaborative effort with the client, developing an individualized and comprehensive plan that often includes working closely with local and regional law enforcement agencies.
One of the most valuable services we provide is comprehensive and independent assessments of existing security policies, operations, physical facilities, infrastructure, technology, and staff training to determine their effectiveness and identify potential deficiencies. The assessments we provide include a complete review of campus emergency management plans and processes as well. This assessment identifies problems so FGIS can provide tactical and strategic recommendations, enabling the institution to be proactive in protecting against threats and securing its assets. And Pepper’s educational attorneys provide the legal framework, with deep knowledge of the Clery Act and other relevant laws and regulations relating to campus security.
The FGIS team also has extensive experience planning and providing security for high-profile events, including national (and international) sporting events.
Labor and Employment
Pepper counsels educational institutions on human resources matters ranging from compliance with federal and state employment laws to collective bargaining and representation in employment litigation. For example, Pepper routinely advises clients on compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, OSHA, WARN and similar state laws. The firm helps clients respond to the government agencies that investigate complaints and charges of discrimination. Our lawyers are experienced in defending clients in discrimination cases and in related tort claims such as wrongful discharge, defamation, intentional interference with contractual relations and intentional infliction of emotional distress.
Pepper also counsels clients on basic employee policies and practices, such as developing employee handbooks and guidelines. These services cover issues such as drug and alcohol testing, harassment in the workplace, internal complaint procedures, employee privacy issues and policies to protect against liability for violence in the workplace. Our lawyers assist with difficult issues such as promotions, demotions, discipline and terminations.
Pepper is experienced in advising universities and other educational clients on insurance coverage issues, including policy and risk audits to ensure that insurance policies accurately state coverage, and to identify any gaps in coverage. We also advise education clients on submitting claims and in resolving a wide variety of coverage disputes with insurers, including litigation if necessary.
In today’s environment, when allegations of wrongdoing are made, in addition to conducting internal investigations to uncover the facts, universities can expect to face simultaneous scrutiny from multiple regulatory and law enforcement agencies, which – sometimes regardless of the outcome of the investigations – are often followed by civil litigation. Pepper is well-equipped to counsel and defend clients in these parallel proceedings.
Our team includes former federal and state prosecutors, and experienced trial lawyers with decades of experience in the education area. Pepper and FGIS provide clients with the strategies and preparation to navigate the potential pitfalls not only of civil litigation, but of dealing with federal and state agencies in investigations, enforcement actions and litigation.
- Investigators and attorneys from FGIS and Pepper were retained as Special Investigative Counsel to a nationally prominent university board of trustees, leading an independent internal investigation of highly publicized allegations of sexual abuse of children at campus facilities by a former coach, and the alleged failure of the university’s personnel to report the abuse to appropriate police and government authorities. The report generated by the investigation, which also examined board governance and institution-wide compliance policies and procedures, provided recommendations for the university to take actions to prevent similar failures in the future.
- Lawyers with Freeh Sporkin & Sullivan, LLP (now with Pepper) were engaged by a major university with a preeminent intercollegiate athletics program to provide an independent assessment of its athletic compliance program and related-investigative procedures. In addition to providing observations and recommendations on how best to improve the athletic compliance department structure, policies and procedures, the services included providing guidance for monitoring and investigating incidents related to high-profile student-athletes. The review included the examination of internal university policies and numerous in-person interviews.
- FGIS represented a nationally accredited law school before the American Bar Association (ABA) Accreditation Committee of the Section of Legal Education and Admissions to the Bar concerning allegations that the law school intentionally reported inaccurate admissions data to the ABA. Pepper continues to serve as the independent compliance monitor to the law school to assist in overseeing remediation of the issues reviewed by the ABA.
- Following a criminal investigation into a cheating scandal involving administration of college admission tests, a national nonprofit educational testing, research and advocacy organization retained FGIS to conduct a thorough review of its security procedures. That review led the organization to enact numerous FGIS recommendations for enhanced procedures designed to ensure an honest and fair testing environment.
- FGIS represented a leading private university in Maryland in a harassment investigation. • FGIS conducted a security assessment for a leading private co-educational college preparatory school.
- Pepper guided a distinguished private university through a grand jury investigation and probe by a state attorney general who alleged mismanagement by the school, resulting in a favorable outcome including implementation of governance changes deemed “impressive” and “state-of-the-art” by nonprofit management experts.
- Pepper represented a university in an internal investigation and adjudication of student sexual harassment allegations against a faculty member and sexual assault allegations against athletic team members.
- Pepper represented a university board in litigation related to the president’s compensation and use of university funds.
- Pepper lawyers have assisted higher education institutions in creating, revising and implementing Clery Act reporting procedures, disciplinary codes, compliance programs, and policies on such topics as student-faculty relations, sexual harassment, hazing, drug and alcohol abuse, and off-campus behavior.
- Pepper represented a university in civil litigation and a criminal investigation involving an alcohol-related incident connected to on-campus fraternity hazing. No charges were filed against the university. In connection with the civil litigation, Pepper obtained summary judgment for the university and obtained a declaration that a fraternity's insurance carrier had an obligation to defend the university.
- Pepper defended a college against claims by nursing students challenging their dismissal from school on the basis of breach of contract and discrimination.
- Pepper represented a boarding school in a challenge by two students to their expulsion for disciplinary violations. A preliminary injunction was denied after hearing.
- Pepper represented a leading university in its removal of a tenured faculty member in a case involving sensitive issues relating to federal grant monies, due process hearings and potential adverse publicity.
- Pepper represented a college in a widely publicized sexual harassment case involving Title IX sex discrimination and breach of contract claims.
- Pepper represented a major city public school district in a high-profile internal investigation of racial and ethnic violence at a high school, coordinating a review of the law enforcement response to the events as well as the school district’s actions. We also represented the district in conducting an independent investigation of contracting practices and procurement policies relating to the installation of security cameras at district facilities.
- Pepper is representing a state department of education, investigating allegations of irregularities in standardized testing.
- Pepper negotiated, drafted and rendered advice concerning design and construction contracts for a number of colleges and universities.
- Pepper currently serves as special construction counsel to a state system of higher education institutions (14 institutions); matters have included successful settlements and victories in litigation over university sports centers, student centers, libraries and other facilities.
Additional Compliance and Investigations Experience
Our ability to assist universities and other educational institutions is strengthened by the broad perspective and insights gained from our compliance and investigative assignments involving other industries. For example:
- The international governing body for soccer retained FGIS to assist in investigating allegations that some of its senior officials offered bribes in connection with its internal presidential election. FGIS and Pepper conducted interviews and review documents in order to expeditiously develop a factual record for use by a member of that organization’s ethics committee which was tasked with presenting findings as a result of the investigation.
- FGIS served as an independent compliance advisor to a European multi-national automobile manufacturer with over 200,000 employees around the world and operations in over 100 countries. Services included assessing compliance programs with a specific focus on ensuring the company’s operations remained compliant with the Foreign Corrupt Practices Act. Pepper and FGIS continue to be engaged in monitoring the compliance program of this global organization.
- FGIS was engaged by a large Asian technology firm to perform a compliance-related investigation in South America and assess the risks related to alleged employee misconduct. The engagement included the development of substantial changes to the company’s compliance efforts.
- Pepper conducted an internal investigation for an international health care company to determine whether improper kickbacks were being paid, and to advise on best practices for structuring relationships with joint venture partners.
- A Pepper partner served as special counsel to the corporate monitor for an international pharmaceutical company, pursuant to an SEC consent decree and a Department of Justice deferred prosecution agreement. In that capacity, he helped oversee the establishment of a centralized compliance function designed to achieve compliance with the myriad rules and regulations that participants in the healthcare industry face in the course of their business.
- Pepper supervised an internal investigation for an international pharmaceutical company on a data security issue, and helped implement revisions to the company's compliance program.
- Pepper led an internal investigation for a multinational engineering firm to review potential environmental and compliance issues in its operations.
- Pepper led an internal investigation for a large pharmaceutical company to assess potential wrongdoing by employees.
- Pepper engaged in an internal investigation and asset recovery for a nonprofit center that suffered loss caused by its former controller.
- Pepper conducted an internal investigation and provided guidance to an international manufacturer on export compliance issues with the Office of Foreign Assets Control and the U.S. Bureau of Industry and Security.
- Pepper conducted internal investigations for major pharmaceutical companies regarding the conduct of clinical trials, sales and marketing practices, pricing and other issues.