At a House Education Committee hearing before the Congressional recess, Rep. Ryan Mackenzie (R-PA) asked Principal of the Groom Law Group Lars Golumbic about the confidence employers have in the Department of Labor.
00:00I'll call on Mr. McKenzie from Pennsylvania for five minutes of questioning.
00:06Thank you, Mr. Chairman, and I want to thank all of our testifiers here today.
00:10It's an important conversation that we're having about EBSA and the ability of a government agency to help in the marketplace
00:18where individuals are getting their health insurance all across the country,
00:21making sure that the benefits they are owed are being paid to them when necessary,
00:27but at the same time also making sure that there is transparency and oversight going on at this agency
00:33to make sure that they are conducting themselves in a proper fashion.
00:37So pretty concerning, some of the testimony that we're hearing today,
00:41and my first question is going to be for Mr. Golombik regarding EBSA and the secrecy of the information that was being shared with plaintiff's attorneys.
00:53Obviously, confidentiality was breached there,
00:56and what does this do to the willingness of different stakeholders to actually cooperate and engage with the DOL?
01:06If they have this concern as a defendant or a potential defendant,
01:11why would they even come forward and cooperate or engage with DOL,
01:16ultimately in the furtherance of benefits for the individuals?
01:20But why would they participate in something like that if they're afraid their confidentiality might be breached?
01:27Thank you. That's a great question, Representative McKenzie.
01:29And just to put a finer point on it, in the matter that I was involved in that I testified to today,
01:36my client, in response to requests for information from the government,
01:41designated documents as exempt under FOIA, meaning they deserve confidentiality designations.
01:48And to the extent the government was going to furnish it to any outside third party,
01:53they needed to give notice to my client.
01:55So we had an opportunity to object to it, given the confidential nature of the information.
02:01That didn't happen.
02:03So I think what we're finding is a consequence in light of this disclosure that these common interest agreements exist.
02:09I'm finding that with my clients who are involved in active Department of Labor investigations,
02:14they're quite reluctant to turn over information because they're worried about the government maintaining the confidentiality of it,
02:22even if we designate it as exempt under FOIA.
02:25And the Department of Labor historically has been reluctant to enter into normal, routine confidentiality agreements,
02:33ensuring the safeguarding of information.
02:35So it's a quandary, and we have active clients who feel like they're between a rock and a hard place,
02:42trying to respond, you know, responsibly in responding to government subpoenas and requests for information.
02:50Yeah, I think it could have a chilling effect on the willingness of participants to participate and engage with DOL,
02:57and again, ultimately, that would be a problem for the whole system.
03:02I would also ask this.
03:04Are you aware or do you know if this practice is still occurring at DOL with maybe career employees there?
03:13I don't know the current state of the practice of the government.
03:18I would, though, add a note in response to other testimony today.
03:23What we are aware of are several instances of those type of agreements by the government and class action firms being reduced to writing.
03:33But I'm sure there are, and the Office of Inspector General may get to the bottom of this,
03:38countless examples of the government picking up the phone and contacting plaintiff's counsel,
03:45talking about legal strategy, talking about underlying case, supplying information that doesn't necessarily have to be reduced to writing in a formal common interest agreement.
03:54As somebody who's not an attorney, I'll ask your legal opinion on this, and just an opinion.
04:00But could this affect the outcomes of previous decisions that were rendered?
04:05If somebody entered into an agreement where they were not made aware of a confidential side deal with DOL and a plaintiff,
04:14could that be revisited?
04:17I don't know. That's pretty speculative.
04:21I do know, just in terms of matters we're involved in and matters I know that other lawyers in this industry are involved in,
04:29they are taking a closer look in active lit lawsuits to see if there is a connection between the government and the plaintiff's firm
04:36and seeking discovery to find out if any such agreements have existed.
04:43And just with the remaining time that I have, Mr. Banducci,
04:46can you elaborate on your statement about providing suggestions for EBSA
04:51and what they should do with the limited resources they may have
04:54and how they could conduct themselves more efficiently?
04:58Thanks very much for the question, Chairman Allen.
05:01I see I've got eight seconds, so I'll try to be quick.
05:03It really starts with the foundational premise.
05:06Large employers, in particular, are mostly doing the right thing.
05:10They are providing benefits to tens of millions of workers and their families,
05:14and EBSA ought to begin with that premise and that understanding.
05:18Thank you, and I agree that should be the premise and understanding,
05:22and I think we can both do that and make sure confidentiality is protected as well.
Be the first to comment