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.
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The Supreme Court Confirms the Government’s Essentially Unfettered Authority to Dismiss False Claims Act Cases
On Friday, June 16, 2023, I (sort of) lost my bet that the Supreme Court would follow the path charted in Borzilleri v. Bayer Healthcare Pharmaceuticals, 24 F.4th 32 (1st Cir. 2022) to determine the government’s False Claims Act (FCA) dismissal authority. See previous blog post. Last fall I predicted that the Supreme Court would confirm the government possesses essentially unfettered discretion to dismiss an FCA case over a relator’s objection, subject to constitutional constraints.
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In a win for defendants, the Supreme Court limits the aggravated identity theft statute and resulting prosecutorial plea-bargaining power
Federal prosecutors will now be cabined in their ability to use aggravated identity theft charges to pressure defendants to plead guilty to other offenses in exchange for avoiding the two-year mandatory minimum, mandatory consecutive sentence that an aggravated identity theft conviction carries.
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Part III | SCOTUS Ruling: “Knowing” Violations of Unknowable Rules: Is the Supreme Court Poised to Alter the FCA Enforcement Landscape in SuperValu?
For background on this case, please refer to Part I. For updates from the Supreme Court oral arguments on April 18, please refer to Part II.
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Whither Insurance Coverage for Preventive Health Services? District Court Decision Striking Down Affordable Care Act’s Preventive Care Coverage Requirements Temporarily Stayed by the Fifth Circuit
On May 15, 2023, the Fifth Circuit temporarily stayed a district court ruling that struck down a key part of the Affordable Care Act (ACA). As a result of the stay, the ACA’s health insurance coverage requirements for preventive health services like cancer screenings and pre-exposure medications for people at high risk of getting HIV remain intact . . . for now.
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Part II | April 18 Oral Argument: “Knowing” Violations of Unknowable Rules: Is the Supreme Court Poised to Alter the FCA Enforcement Landscape in SuperValu?
For background on this case, please refer to Part I.
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Unleashing the Artificial Intelligence Advantage: How AI Can Transform Legal Research
In recent years, artificial intelligence (“AI”) has surged in popularity, quickly becoming an integral part of many industries. As AI algorithms continue to advance, legal professionals should consider how they can integrate AI into their practice. This post discusses two key ways AI seems poised to transform legal research—and one important warning.
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Part I | Background: “Knowing” Violations of Unknowable Rules: Is the Supreme Court Poised to Alter the FCA Enforcement Landscape in SuperValu?
Below is the first in a three-part series on U.S. ex rel. Schutte et al. v. SuperValu Inc.
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Sentences Based on Acquitted Conduct: Will the Court Try Again?
Note: After this post was written, the Court rescheduled the cases presenting the issue, likely for distribution at the next conference on May 18, 2023.
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Adding China-Specific Restrictions to the FCPA? The Implications of Sen. Rubio’s Proposal
A recently re-introduced bill by Senator Marco Rubio (R-FL) would seek to expand the reach of the Foreign Corrupt Practices Act (“FCPA”) over corporations operating in China.1 The Countering Corporate Corruption in China Act of 2023 aims to use the FCPA—a law generally prohibiting the use of bribes and other corrupt activities to obtain or retain business in foreign countries—as a tool to limit or prohibit corporations and individuals subject to the FCPA from publicly supporting the Chinese government.2 If the bill were enacted, it would greatly increase the cost of compliance of operating in China by requiring corporations to track and monitor the political speech of their employees.
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Trump v. Carroll, Part III: The D.C. Court of Appeals Appropriately Clarifies D.C. Scope-of-Employment Law, But It Won’t Make Westfall Act Substitution Inquiries Any Easier
On April 13, 2023, the en banc District of Columbia Court of Appeals issued its decision in response to a certified question from the Second Circuit. Rather than weighing in directly on whether former President Trump’s statements concerning E. Jean Carroll’s sexual assault allegations were within the scope of his employment under the respondeat superior standards in District of Columbia law, the en banc court took the opportunity to restate and clarify the general respondeat superior inquiry. District of Columbia practitioners who watched the oral argument may have breathed a sigh of relief that the court resisted the temptation to tailor a legal standard of great importance to ordinary tort litigation in the District of Columbia to the unique circumstances of a case presented by litigation in New York. The court also declined the Second Circuit’s invitation to adopt an “internalization” standard that places on the employer broad liability for foreseeable harms. In addition, the court declined to adopt a categorical rule “that the conduct of elected officials speaking to the press is always within the scope of that official’s employment.” Trump v. Carroll, D.C. Ct. App. No. 22-SP-745, Slip Op. at 39 (Apr. 13, 2023). Instead, the court explicated a fact-intensive scope of employment inquiry which it concluded was for the factfinder in the case, not something that could be decided as a matter of law on the record before the court. Id. at 41.
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General Counsels Beware: Assume That Anything Can Go Viral in the #MeToo Era
In March 2023, at the American Bar Association (“ABA”)’s White Collar Crime Institute in Miami, Gary S. Lincenberg moderated a panel of general counsels. The panel covered a range of different issues; this post focuses on the discussion about changing approaches to confidentiality and privilege in the context of internal investigations.
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Carroll v. Trump, Redux: Why Would Congress Want to Have State Law Determine the President’s Scope of Employment When the President is Already Immune for Acts Within the Outer Perimeters of the Office?
The Justice Department’s invited amicus curiae brief in Blassingame v. Trump1 exposes another anomaly in treating the President’s scope of employment as a question of state tort law for purposes of the Westfall Act. In considering whether the President is a federal employee for purposes of the Westfall Act in the Carroll v. Trump matter, why didn’t the district court and the Second Circuit majority address the doctrine of presidential immunity?
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How many times can the same police department arrest you on a warrant that bears your name but is plainly not intended for you?
What’s in a name? If it’s in a warrant and you’re in the Eleventh Circuit, enough to arrest and jail you for three days even if you don’t match the description of the wanted person, the warrant was issued 26 years earlier from another state, and the same law enforcement agency mistakenly arrested you on the same warrant four years earlier. Sometimes a court issues a decision that, while a plausible consequence of prior holdings, is so wrong-headed that it requires a re-examination of the false doctrinal steps that led to it. The en banc Eleventh Circuit’s recent decision in Sosa v. Martin County (Fl.) Sheriff,1 is an example.
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Trump v. Carroll, Part I: Should the DC Court of Appeals Decide the Scope of the President’s Employment?
On January 11, the full complement of active judges of the District of Columbia’s highest court spent more than two and a half hours hearing oral argument about the District’s respondeat superior liability standard in Trump v. Carroll. The U.S. Court of Appeals for the Second Circuit certified to the DC Court of Appeals the question whether former President Trump was acting within the scope of his employment under District law when he made allegedly defamatory statements after E. Jean Carroll accused him in a magazine article of having sexually assaulted her decades earlier. It is understandable that none of the judges asked why District law should control, given that all parties to the case agreed that the District’s standard should determine whether the former president has immunity to Ms. Carroll’s suit.
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In re Grand Jury: Supreme Court Considers the Scope of Attorney-Client Privilege for “Dual-Purpose Communications”
Update January 23, 2023: The Court today dismissed the writ of certiorari as improvidently granted.
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Eighth Circuit Splits with Third: Must Show “But-For” Causation
In 2010, Congress amended the Anti-Kickback Statute (the “AKS”) to provide that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the False Claims Act (the “FCA”). 42 U.S.C. § 1320a-7b(g) (emphasis added). Since that amendment, courts have wrestled with the statute’s “resulting from” requirement, and FCA plaintiffs and defendants alike have attempted to interpret the language to their advantage. Recently, the Eighth Circuit weighed in and determined that FCA claims premised on violations of the AKS require relators and the government to show “but-for” causation between alleged kickbacks and submitted claims.
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Working with Experts: Three Tips for Associates
Experts are a key part of any complex litigation. Being part of an expert team as an associate can mean taking charge of all the little (but still important) things: shuttling relevant documents to the expert, keeping track of what gets sent so that you have an accurate materials considered list, proofreading and cite checking the expert report, and putting together the final expert package for service. But there are opportunities for associates to make significant substantive contributions when working with experts as well. Below are three ways associates can do that.
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Five Essential Tips for a Smooth Remote Deposition
Remote depositions were once thought to be a short-term solution to one of the many challenges of practicing law in a global pandemic. But considering the efficiencies in time and cost when taking a remote deposition, and attorneys’ increasing comfort with this format, it’s now safe to say that they are here to stay. After more than two years of taking, defending, and facilitating remote depositions, here are five tips for ensuring a smooth experience in the virtual deposition room.
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“To Prosecute or Not to Prosecute”: For Low-Level Crimes, It’s Not That Simple
Anyone who lives or works in Baltimore, Maryland is familiar with the “squeegee kids.” When stopped at a red light downtown, it’s not uncommon for someone—usually a teenage boy of color—to approach your car with an offer to clean your windshield for money. Most of these interactions are, in my experience, unremarkable. But some find them irritating, and many lament that the squeegee workers’ business model, which involves weaving between cars at busy intersections, is dangerous. Even worse, on rare occasions, hostilities erupt between the squeegee workers and the drivers they encounter. One such encounter earlier this year had tragic and fatal consequences.1
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Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s “Saving Clause”
What happens when the Supreme Court changes the interpretation of the law under which a federal inmate was convicted, such that the person would be innocent under that new interpretation? On November 1, the Supreme Court is set to hear argument in Jones v. Hendrix, 21-857, which asks the Court to resolve a circuit split regarding the scope of 28 U.S.C. § 2255(e). Section 2255(e), the so-called “saving clause,” allows federal inmates to collaterally challenge their convictions through traditional habeas actions under 28 U.S.C. § 2241 where “it appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.” While most courts of appeals allow federal inmates to use the saving clause to bring habeas actions when the law under which they were convicted changes and those changes are retroactive, the Eighth, Tenth, and Eleventh Circuits do not. The particular circumstances of the Jones case may impact the Court’s treatment of the issue.