Education INDUSTRIES

WilmerHale helps educational institutions solve their most complex, high-stakes problems.


Colleges and universities have never been as prominent, or as vulnerable, as they are today. As their influence spreads, so does the scrutiny they receive. Educational institutions have unique missions, unique management and governance systems, and a unique set of responsibilities. Lawyers helping colleges and universities solve their thorniest problems must understand what they stand for and how they work. WilmerHale does.

We guide colleges and universities through government investigations, congressional inquiries, and public scrutiny. We represent our education clients in high-profile litigation, help them defend their intellectual property, and handle their major transactions. And we assist schools confronting difficult and contentious policy issues.

WilmerHale knows the unique issues and mounting pressures facing educational institutions. We have worked with education clients in a wide range of areas, including: accreditation, affirmative action, antitrust, art and antiquities, campus security, cybersecurity, employee misconduct, endowment management, federal grants and contracts. We also assist in the areas of: financial aid, free speech, export controls, gender-based and sexual misconduct and healthcare, as well as IP litigation, joint ventures, licensing, mergers and acquisitions, patent commercialization, patent prosecution, privacy, public-private partnerships, religious liberty, research guidelines, student-athlete issues, technology transfer and testing.

Contacts

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Gorelick, Jamie

Jamie Gorelick

Chair, Regulatory and Government Affairs Department

Co-Chair, Strategic Response Group

+1 202 663 6500 (t)

jamie.gorelick@wilmerhale.com

Berman, Bruce M.

Bruce M. Berman

General Counsel

+1 202 663 6173 (t)

bruce.berman@wilmerhale.com

Rotenberg_Mark

Mark B. Rotenberg

Special Counsel

+1 202 663 6455 (t)

mark.rotenberg@wilmerhale.com

Issue Focus: Sexual Violence

WilmerHale is assisting some of the nation's top universities in their response to campus sexual violence, including schools identified by the Department of Education earlier this year. Our work covers the full breadth of this challenging issue. We counsel clients on compliance with Title IX, the Clery Act, and the Campus SaVE Act, as well as guidance from the Department of Education and the White House Task Force to Protect Students from Sexual Assault. We draft gender-based and sexual misconduct policies and procedures for resolving complaints and sanctioning responsible parties. We counsel clients on crisis response and help formulate internal and external communication strategies. We conduct internal reviews of university responses to specific incidents, and we recommend policy and practice changes when appropriate. We also represent clients facing Department of Education investigations, congressional oversight, law enforcement subpoenas, and lawsuits by alleged victims and respondents.

Experience

Strategic Response, Investigations and Litigation

Legal challenges confronting colleges and universities can quickly escalate into multidisciplinary matters with significant legal, financial and reputational consequences. We work with educational institutions to develop and execute strategies to defend or advance a position—whether responding to fast-moving events or working over the longer term to craft and implement legislative or regulatory solutions to complex problems.

We have represented numerous education clients in internal, regulatory and congressional investigations. These include investigations of universities' use of research funds, investigations of guaranteed student loan providers, and investigations of nonprofit and for-profit college recruiting and student aid practices.

We have also handled a wide range of offensive and defensive litigation for colleges and universities. In doing so we are mindful that educational institutions have numerous internal and external constituencies—including students, faculty, staff, alumni, donors and parents—that have differing interests and perspectives. We also take into account that litigation involving educational institutions attracts out-sized public attention and often concerns difficult and divisive public policy issues.

Representative matters:

  • We conducted internal reviews for universities facing high-profile matters with legal and reputational risks.
  • We represented Duke University in litigation by former lacrosse players.
  • We have prevailed in sensitive litigation over claims to art and antiquities in university and museum collections, including a dispute over Persian antiquities.
  • We represented a coalition of national universities accused by the Department of Justice of violating antitrust laws in providing scholarships.
  • We represented the University of Michigan before the United States Supreme Court in Gratz v. Bollinger and Grutter v. Bollinger, which addressed the ability of higher education institutions to consider racial and cultural background in admissions.

Intellectual Property

Intellectual property can be among an academic institution's most vital assets. To manage this important commodity, colleges and universities need an experienced and trusted partner. WilmerHale has one of the largest and most experienced intellectual property departments in the country. Our intellectual property lawyers assist schools with strategic planning, identify inventions for which patents should be sought and advise on what claims to make and how best to make them. WilmerHale's Intellectual Property Litigation Practice has been recognized by The American Lawyer as the finest in the country.

Representative matters:

  • We have prosecuted patents for universities, including Boston University, Brown University, Columbia University, Harvard University, Michigan State University, Rutgers University, University of Chicago, and University of Pittsburgh, and for medical facilities such as the Dana Farber Cancer Institute.
  • We advised Columbia University on the development of a strategic plan for the commercialization of a collection of patents. We analyzed and classified the technologies for marketing purposes, researched potential markets, identified possible licensees and delivered a comprehensive strategy far beyond the capability of most university technology transfer offices.
  • We help manage university patent portfolios, provide patentability assessments and identify advantageous licensing opportunities.
  • On behalf of a major university and its licensee, we prevailed in a patent interference proceeding concerning an active agent in a drug for the treatment of septic shock. The decision was upheld in an appeal before the Court of Appeals for the Federal Circuit.

Regulatory and Legislative

We are well-versed in the many regulatory obligations imposed on higher education institutions and for-profit education companies, and regularly provide advice on the areas of most pressing and consistent concern. We also represent numerous universities and educational companies before Congress, assuring that their interests are taken into account in legislation.

Representative matters:

  • We advise universities and commercial organizations on compliance with federal education laws.
  • We provide guidance to clients on the use of federal grant, cooperative agreement or contract funds.
  • We advise clients on the regulatory constraints surrounding research and product development in biotech, medical and other spheres, and on the increasingly regulated domain of data privacy.
  • University clients looking to export their technology turn to WilmerHale for advice on export controls pertaining to the transfer of technical data to overseas parties and the employment of foreign nationals—such as graduate students—in research conducted in the United States.
  • We helped ensure that federal stimulus funds would be directed to school systems that need to acquire certain instructional materials.

Transactional (Corporate and Licensing)

Universities and other education clients rely on us for a host of transactional work, including mergers and acquisitions, joint ventures, research collaboratives, technology transfers, and licensing. We understand the special challenges education clients face and the rules to which they may be subject when contemplating and executing transactions.

Representative matters:

  • We provide legal advice to university investment offices concerning their investments in various vehicles.
  • We represent a consortium of New York-based academic and medical institutions in matters including entity formation, governance and other corporate, tax, licensing, employment and regulatory matters.
  • We represented the Mexican National Institute for Astronomy, Optics and Electronics in a cross-border joint venture with the University of Massachusetts to construct a state-of-the-art large millimeter radio telescope observatory in Puebla, Mexico.
  • We advised on the formation and structuring of The SNP Consortium, a public-private consortium in which The Wellcome Trust, leading global pharmaceutical and IT companies, and several major research universities in the United States and Britain collaborated to develop a publicly released map of the human genome based on the discovery and classification of single-nucleotide polymorphisms.
  • We have represented major for-profit and nonprofit organizations in acquiring education oriented companies, such as Educational Testing Service's acquisitions of Assessment Training Institute and Prometric.
  • We represented some of the largest research universities in the country in customizing technology transfer agreements with private enterprises to their needs and particular technology requirements.

Publications & News

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June 20, 2017

Court Determines That Grocer's Website Not Used to Sell Goods Is Public Accommodation Under the ADA

Last week, following a bench trial, a federal district judge in Florida concluded that the grocery store and pharmacy chain Winn-Dixie violated Title III of the Americans with Disabilities Act because its website is not compatible with industry-standard screen-reading software used by visually impaired consumers.

June 16, 2017

OCR Guidance Could Alter Scope of Pending and Future Civil Rights Investigations

A memorandum obtained by ProPublica, if authentic, sets forth substantially revised guidance for civil rights investigations conducted by the U.S. Department of Education's Office for Civil Rights (OCR). The memorandum, addressed to Regional Directors from Candice Jackson, OCR Acting Assistant Secretary for Civil Rights, explains that, going forward, “there is no longer a 'one size fits all' approach to investigation of any category of complaints.”

May 26, 2017

WilmerHale Lawyers and Practices Recognized in 2017 Edition of Chambers USA

Chambers and Partners announced its rankings for the 2017 edition of Chambers USA: America's Leading Lawyers for Business, with WilmerHale listed among the nation's best in 50 practice area categories. Chambers also ranked 86 WilmerHale lawyers as leaders in their respective fields.

March 7, 2017

WilmerHale Counsels Nearpod in Securing $21M Series B Funding

The education tech startup will continue to help teachers incorporate software and content into their day-to-day instruction.

January 31, 2017

False Claims Act: 2016 Year-in-Review

In 2016, the Department of Justice continued to give high priority to False Claims Act investigations and prosecutions. This WilmerHale Client Alert was republished by Pratt's Government Contracting Law Report.

November 17, 2016

Rise of digital DNA raises biopiracy fears

Bruce Manheim is quoted in this article published in Science magazine. The article describes how the use of digital DNA may be regulated by various nations under the Nagoya Protocol and may lead to allegations of biopiracy.

November 8, 2016

Regulation of Synthetic Biology Under the Nagoya Protocol

An article by Bruce Manheim, published in Nature Biotechnology, considers whether digital sequence information from genetic resources in foreign countries will be subject to the access and benefit-sharing requirements of the Nagoya Protocol and other international agreements.

October 12, 2016

Freedom to Utilize Genetic Resources? The Nagoya Protocol Two Years Later

An article by Bruce Manheim, published as a WilmerHale Client Alert and republished by Intellectual Property Watch and Asia IP, discusses the Nagoya Protocol and how over the past two years—as various nations have adopted new provider and user measures—the Protocol's legal framework has begun to coalesce into an international regulatory scheme governing access to and use of genetic resources for research and development.

October 4, 2016

False Claims Act Lawsuits Increasingly Target Universities

A Law360 article by Jonathan Cedarbaum, Mark Rotenberg, Alexandra Bonneau and David Beraka discusses two areas in particular that have left universities facing FCA judgments and settlements in recent years: research funding and Medicare and Medicaid claims at university hospitals.

August 10, 2016

Civil Penalties Set to Increase Significantly, Many Present Retroactivity Concerns

Over the past several months, many federal agencies have adopted rules significantly increasing the maximum civil monetary penalties (CMPs) they can potentially impose. The increased penalty amounts were adopted in response to recent legislation from Congress requiring that federal agencies make adjustments to “catch up” with inflation.