As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
Subscribe
Contributing Editors
Filter
Results
-
Happy Fiftieth, Maryland Federal Public Defenders
On Friday, October 18, I delivered a check to the videographer for the Maryland Federal Public Defenders’ 50th Anniversary Event held in the ceremonial courtroom at the U.S. District Court for the District of Maryland. I figured I’d stay for the beginning of the program and slip out when I got the gist of the ceremony, which I assumed would follow the typical formula. I confess to some cynicism about these events because the usual script involves a lot of thanks to all those who helped the speaker but also high praise for those who are in a position to help the speaker in the future.
-
Prosecutorial Independence and the Rule of Law: Insights from Distinguished Legal Leaders
On October 1, 2024, Zuckerman Spaeder partner Sara Alpert Lawson moderated a panel for the American Bar Association (“ABA”) titled “Prosecutorial Independence and the Rule of Law.” The panel consisted of three prosecutorial heavyweights: Fmr. Assistant Attorney General Leslie Caldwell, Fmr. Senator Doug Jones of Alabama, and Fmr. Deputy Attorney General of the United States Larry Thompson. It was an interesting discussion covering (1) prosecutorial independence and discretion and the rule of law; (2) the mission of the Department of Justice (“DOJ” or the “Department”); and (3) the impact on the rule of law from the Heritage Foundation’s Project 2025 proposed Mandate, as well as its impact if the proposed recommended restructuring of the DOJ and Federal Bureau of Investigation was carried out.
-
Rolling Down Hill: Qualified Immunity’s Role in Prolonging Mistaken-Identity Arrests
A 1971 Supreme Court Decision of Doubtful Vitality Thwarts § 1983 Liability for Mistaken-Identity Arrests and Stifles Development of Clear Constitutional Rules
-
Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights
In a new article, Zuckerman Spaeder partner Marty Himeles and alumnus Bryan Thompson have analyzed the effects of the Supreme Court’s 2013 decision ending the “preclearance” requirement for new voting standards, practices, and procedures in states with a history of discriminatory voting practices. The full article, titled Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights, is available here.
-
Corner Postscript: Implications of the Supreme Court Decisions in Loper Bright and Corner Post
Together, the Supreme Court’s decisions in Loper Bright and Corner Post open a path to attack federal regulations issued by agencies (and upheld by courts) many years ago. As Justice Jackson put it in her Corner Post dissent: “Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season.”1
-
UPDATE: The Imperative for Outlawing “Acquitted Conduct Sentencing”
For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends commonsense notions of fairness. And, as discussed in a prior post by Zuckerman Spaeder attorneys David Reiser and Bryan Reines, the practice may also violate the Double Jeopardy clause.
-
Regulators Put AI in Their Crosshairs at the ABA National Institute on White Collar Crime
The American Bar Association (“ABA”)’s National Institute on White Collar Crime has long focused on regulating, prosecuting, and defending evolving permutations of fraud, or allegedly fraudulent conduct. At the 39th annual event, held March 6-8 in San Francisco, a new focus was on how various agencies intend to regulate artificial intelligence (“AI”) in the white collar arena. Some announcements were new to the conference, while others repeated agency guidance issued in recent months. Taken together, the announcements confirm that regulators are unified in their concern that left unchecked, AI could amplify financial crimes and their determination to nip that threat in the bud.
-
The Race to Report: Regulators Announce New Whistleblower Programs Aimed at Increasing Voluntary Self-Disclosure from Companies
Telling on yourself is not an intuitive defense. But federal regulators and prosecutors at last week’s American Bar Association (“ABA”) Institute on White Collar Crime urged companies and executives to consider doing so or risk being beat to the punch by employees and competitors. With their announcements of new whistleblower policies, the Department of Justice and the United States Attorney’s Office for the Northern District of California have intensified an already tough decision facing a company that becomes aware of misconduct: whether to voluntarily disclose to regulators.
-
The Imperative for Outlawing “Acquitted Conduct Sentencing”
In federal court, “not guilty” doesn’t always mean no punishment. Under a quirk of federal sentencing law, judges are permitted to consider at sentencing anything that they consider relevant, including conduct for which a jury has explicitly found the defendant not guilty.1 In the 1997 Supreme Court case United States v. Watts, a majority of the Justices explained the perverse logic behind this practice. While a defendant may be convicted only of crimes proven beyond a reasonable doubt, he may be sentenced based on facts established by the lower “preponderance of the evidence” standard.2 In other words, if the jury acquits the defendant on one count but convicts on at least one other, the judge can increase the sentence on the basis of the acquitted conduct so long as the judge concludes that conduct probably occurred.
-
Will Corner Post Open the Floodgates if Chevron Falls?
At Tuesday’s oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, Justice Kagan asked the government’s counsel whether there is “any interaction” between the statute of limitations question in that case and the Court’s consideration of whether to abandon Chevron deference in two cases argued a month earlier.1 The Assistant to the Solicitor General responded cautiously that “a decision for Petitioner here would magnify the effect of any other decisions changing the way that this Court or other courts have approached administrative law questions,” because it could mean retroactively applying new standards to administrative agency actions taken decades earlier.2 The decision in Corner Post could be hugely consequential if the Supreme Court recasts or rejects Chevron, because many regulations that were upheld under a deferential standard would be fair game for renewed challenges under a new and likely more rigorous standard of review.
-
Under “Damocles’ Sword”: Considering Removal Protections and the Take Care Clause in Light of SEC v. Jarkesy
The Constitution requires judicial independence in Article III. As Hamilton observed in “Federalist 78”: “The standard of good behavior for the continuance in office of the judicial magistracy . . . . is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
-
Why Maryland Did Not Ratify the Fourteenth Amendment (Until 1959)
In honor of Black History Month, InsightZS editor John Connolly posted a longform article on his personal website titled Why Maryland Did Not Ratify the Fourteenth Amendment (Until 1959). The article discusses the technical and racial objections to the proposed amendment asserted by Maryland’s reactionary leadership in the aftermath of the Civil War. The stated objections focused mostly on the more obscure sections of the amendment, including section 2, which would penalize Maryland if it did not adopt “manhood suffrage” (essentially, allowing Black men to vote), and section 4, which prohibited the federal and state governments from paying “any claim for the loss or emancipation of any slave.” Ninety-one years later, Maryland’s first Black state senators convinced the General Assembly to ratify the Fourteenth Amendment, which by then had long been accepted in Maryland and elsewhere as the law of the land.
-
The Meaning of Corruption (Revisited): United States v. Robertson and Further Considerations for White Collar Practitioners from the D.C. Circuit’s January 6 Docket
A previous post examined interpretations of the statutory term “corruptly” in case law arising from prosecutions of participants in the January 6, 2021 Capitol riot. A significant new case from the D.C. Circuit, United States v. Robertson, 86 F.4th 335 (D.C. Cir. 2023), clarifies the meaning of “corruptly” in the January 6 context and offers further considerations for attorneys handling cases under the myriad white collar crime statutes that also cover conduct that is undertaken “corruptly.”
-
Social Media and State Action: The Supreme Court Considers When Government Officials Block Commenters “Under Color of” State Law
When public officials block commenters from their social media pages, are they acting “under color of” state law for purposes of 42 U.S.C. § 1983? Yesterday, October 31, 2023, the Supreme Court heard oral arguments in two cases, Lindke v. Freed and O’Connor-Ratcliff v. Garnier, asking the Court to resolve a circuit split on this issue. The United States filed briefs as amicus curiae and participated in oral argument on behalf of the government officials in both cases.
-
The D.C. Court of Appeals Invalidates Part of the Anti-SLAPP Act
On September 7, the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier.1 In Banks v. Hoffman,2 the Court held “the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss procedure conflict with FRCP 56” and were therefore invalid as an effort to alter the requirement of D.C. Code § 11-946, that the Superior Court “conduct its business according to the Federal Rules of Civil Procedure … unless it prescribes or adopts rules which modify those Rules.”3 The Home Rule Act provides that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).” Because the Superior Court had not adopted a rule with the approval of the Court of Appeals that modifies Fed. R. Civ. P. 56, the Court invalidated the discovery limitations in the Anti-SLAPP Act.
-
The Conscious Uncoupling of the Maryland and Federal Constitutions
Zuckerman Spaeder partner John J. Connolly posted an article called The Conscious Uncoupling of the Maryland and Federal Constitutions.
-
SEC Adopts New Rules for Private Funds: What Advisers and Investors Need to Know
On August 23, 2023, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) finalized new rules and amendments under the Investment Advisers Act of 1940 (“Advisers Act”) to enhance the regulation of private fund advisers. According to the SEC, these new rules are intended to increase transparency, competition, and efficiency in the private funds sector.
-
The Meaning of Corruption: What White Collar Defense Attorneys Can Take Away from January 6 Capitol Riot Cases (and Potentially from the Prosecution of Donald Trump)
White collar defense attorneys typically advocate on behalf of corporations and executives in the worlds of business and finance. It may not seem natural, then, to suggest that white collar lawyers would do well to pay attention to case law emerging in cases worlds away from the white collar realm: prosecutions of participants in the riot at the United States Capitol on January 6, 2021. But they should. Though the facts of these cases are far afield from typical white collar fare, many of them raise the issue of what it means to act “corruptly”—a mens rea question that applies to a broad range of white collar offenses.
-
What to Watch in Partisan Gerrymandering
In the wake of this decade’s initial redistricting cycle, judicial elections in several states have prompted courts in those states to reconsider their previous decisions on U.S. House district boundaries and composition. As a result, the nation is in a period of exceptional uncertainty about districting maps, with profound implications for congressional makeup and control.
-
Off-Channel Communication Risks: SEC and CFTC Enforcement Actions and Compliance Considerations for Financial Firms
In an increasingly digital world, financial firms need to be mindful of the variety of electronic communication channels that their employees use for work. Even where firms require employees to use firm-managed email networks to communicate electronically about business matters, employees may also use unapproved, or “off-channel,” messaging platforms, such as iMessage and WhatsApp, to communicate with each other or their clients. This development presents a host of risks for financial firms that do not maintain records of these communications or enforce policies designed to crack down on this practice.