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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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.
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Supreme Court Poised to Resolve Personal Jurisdiction-by-Consent Issue
The Supreme Court is scheduled to hear argument on November 8 in Mallory v. Norfolk Southern Railway Co., 21-1168, and it appears ready to resolve a longstanding issue that has divided lower courts. That issue is whether it is constitutional for a state to condition a corporation’s right to do business in the state upon the corporation’s consent to personal jurisdiction in the state’s courts.
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Transparency practices at the FDA: A barrier to global health
View the article online.
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Work Hard and Stay Focused: Lessons Learned Clerking for Justice Ketanji Brown Jackson
When I told my clerkship adviser in 2015 that I was hoping to land a federal district court clerkship in or around Washington, DC (my husband was threatening to leave me if I made him move cross-country again, only mostly joking), he excitedly suggested I apply to the fairly recently appointed Judge Ketanji Brown Jackson. She sounded phenomenal, and I was eager for the chance to learn from such a brilliant lawyer and jurist.
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Warranted wiretapping? What to look for in this year’s Wiretap Report.
Wiretapping—the interception of wire, oral, or electronic communications—has long been an effective tool for law enforcement investigating suspected criminal activity. Each June, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 requires the Administrative Office of the United States Courts to report to Congress on wiretaps approved, extended, or denied.1 The annual “Wiretap Report” has been criticized by prosecutors, judges, and other stakeholders as outdated and incomplete, including because the forms used to collect the relevant information have overlapping categories, are not uniformly understood by prosecutors, and are frequently submitted late, if at all.2 Still, the report provides the only regularly published, non-anecdotal account of national trends in wiretapping and the associated invasions of privacy.
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SEC Extends Comment Period on Proposed Rules Requiring Robust Climate-Related Disclosures
On May 9, the U.S. Securities and Exchange Commission (“SEC”) announced that it will extend the public comment period on its proposed rules on climate-related disclosures by public companies. The comment period was scheduled to close on May 20, 2022, but given the “significant interest” that the amendments have drawn “from a wide breadth of investors, issuers, market participants, and other stakeholders,” the SEC extended the comment period to June 17, 2022. Indeed, the SEC has already received thousands of comments from individual investors, academics, climate activists, industry groups, professional associations, and corporate entities. Some herald the proposed rules as “a fantastic idea to inform potential investors of what their money will support,” while others express concern that such climate-related disclosures stray too far from the SEC’s mission and authority. Although the final text and effective date of the rule are still unclear, enhanced climate-related disclosures are a priority for the SEC and public companies likely will have to deal with them in the near future.
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10 Things to Know About Federal Criminal Sentences
The U.S. Sentencing Commission collects information on every federal felony and class A misdemeanor sentence. The Commission’s 2021 Annual Report looked at over 57,000 reported cases, and these are some of the highlights:
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Lawyer Discipline for Discriminatory Speech – A Pennsylvania Decision Raises Questions About Maryland Rule 19-308.4(e)
A federal judge has held that Pennsylvania’s Rule 8.4(g),1 which subjects lawyers to professional discipline for engaging in discriminatory conduct, violates both the free speech clause of the First Amendment and the due process clause of the Fourteenth Amendment. See Greenberg v. Goodrich, No. 20-03822, 2022 WL 874953 (E.D. Pa. Mar. 24, 2022). The court’s reasoning raises questions about the constitutionality of many other states’ versions of Rule 8.4(g), including Maryland’s Rule 19-308.4(e),2 which is arguably more intrusive on speech than the Pennsylvania rule.
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DOJ Unveils Enhanced White Collar Prosecution Focus at ABA National Institute on White Collar Crime
Recently, from March 2-4, almost 1,000 judges, federal prosecutors, federal public defenders, regulators, private practitioners, general counsel, and academics gathered in San Francisco for the 37th Annual American Bar Association National Institute on White Collar Crime. As the premier conference in the white collar legal space, assembling key stakeholders, it is unsurprising that both Attorney General Merrick B. Garland and Assistant Attorney General, Criminal Division Kenneth A. Polite Jr., chose the National Institute to unveil the Department of Justice’s prosecution initiatives for the Biden Administration. In keynote addresses, both AG Garland and Criminal Chief Polite made clear in their remarks that white collar prosecutions are their top priority. While the DOJ’s focus on such prosecutions waxes and wanes, AG Garland declared that it is indeed “waxing again,” with a Congressional budgetary request of $36.5 million to hire an additional 120 prosecutors and $325 million to fund more than 900 agents to combat pandemic-related fraud and to redouble efforts to prosecute white collar crime of all varieties.
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The U.S. Supreme Court Rejects Bronx DA’s Attempted End-Run Around Confrontation Clause
In Hemphill v. New York, the U.S. Supreme Court held that the defendant “did not forfeit his confrontation right merely by making [a] plea allocution arguably relevant to his theory of defense.”1 The Court rejected the attempt by the Bronx District Attorney (DA) to circumvent the Confrontation Clause using a New York rule that allows prosecutors to respond to defense argument with otherwise inadmissible evidence.
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What Do the Supreme Court’s Decisions on COVID-19 Vaccine Mandates Mean for the American Workforce?
On January 13, 2022, the U.S. Supreme Court struck down one federal COVID-19 vaccine mandate (on large employers) while leaving another (on federally funded healthcare facilities) intact. On balance, these decisions curb federal power to require vaccines and leave behind a patchwork of local, state, federal, and private vaccine regulations. This post summarizes the Court’s contrasting decisions and analyzes some of their impacts on American employers and employees.
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A Government Win That FCA Defense Counsel Can Get Behind
In the past twenty or so years, the government (and creative relators) have sharpened and re-designed the False Claims Act, 31 U.S.C. § 3729 et seq. (“FCA”), into a multi-functional tool to redress all sorts of conduct that allegedly “defrauded” the government. Theories abound as to how the government might be misled – including presentment of factually false claims, legally false claims, and “reverse” false claims (e.g., failing to return funds the government erroneously paid).
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HOME FOR THE HOLIDAYS – The Biden Administration Will Allow Prisoners on Home Confinement Under the CARES Act to Stay Home After the COVID-19 Pandemic
For the second year in a row, people throughout the United States are navigating how to celebrate important holiday traditions safely with friends and family in light of COVID-19. This year, the Biden Administration has made the age-old saying, “there’s no place like home for the holidays,” a reality for one segment of the population: federal prisoners currently serving their sentences in home confinement. On December 21, 2021, the Department of Justice reversed a Trump-era legal opinion which would have required the Bureau of Prisons (“BOP”) to reincarcerate individuals on home confinement at the end of the COVID-19 emergency.
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Crafting Document Requests to Avoid Boilerplate Objections and Responses: The Sedona Conference Primer on Crafting eDiscovery Requests with “Reasonable Particularity.”
For more than four decades, Federal Rule of Civil Procedure 34 has required litigants to “describe with reasonable particularity” the information sought in discovery requests. Although the “reasonable particularity” standard for drafting requests is not new, recent case law addressing Rule 34 objections and responses in the wake of the 2015 amendments to the Rules has highlighted the problem caused by poorly drafted requests. In November, the Sedona Conference published its Primer on Crafting eDiscovery Requests with Reasonable Particularity for public comment (“Rule 34(b)(1) Primer”)1. The Rule 34(b)(1) Primer discusses the history of the Rule 34 standard, evolving case law addressing the standard, and practice points for drafting instructions, definitions and requests.
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In Nevada, Jury Finds Against United Healthcare’s Efforts To Underpay for Emergency Medical Services and Generate Profits for Itself
On November 29, 2021, a jury in Nevada found United Healthcare liable for underpaying TeamHealth, a nationwide provider of emergency medical services, by millions of dollars. The case, Fremont Emergency Services vs. UnitedHealth Group1, tells us more about the American healthcare system—both how it works and what is wrong with it—than a decade’s worth of governmental reports and hearings. Plaintiff’s central allegation was that United Healthcare, the nation’s largest health insurer and plan administrator, engaged in a multi-pronged scheme to dramatically reduce emergency reimbursement rates and artificially generate profits for itself. The case offers a revealing window into the “black box” process by which reimbursement rates are set and the enormous power of United Healthcare.
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Can Texas Force Lawyers to Pay the Prevailing Party’s Legal Fees in Federal Litigation?
The new Texas abortion law known as S.B. 8 has been the subject of extensive commentary for its “bounty” cause of action against abortion providers and “aiders and abettors.” But the law creates a second cause of action that may infringe the right to counsel in federal courts and, as a result, may face its own judicial scrutiny.
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Six Ethical Pitfalls to Avoid on Lawyer TikTok
At first glance, TikTok might not have obvious utility to the working professional. After all, its pandemic-era popularity seems to be the product of Zoom-schooled and homebound Gen Zers who flocked to the app as a new pastime and socialization tool. But over time, TikTok’s endless stream of short videos evolved to attract a variety of professionals seeking to market themselves and educate the public in a new format.
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Bad-Behaving Litigants Beware: Gamesmanship During Discovery Could Come at Great Cost
New York courts are trending towards a strict no-tolerance approach in disposing of cases for willful discovery violations. Under CPLR 3126(3), a party may seek to strike its opponent’s pleading for a willful failure to comply with discovery obligations. While this is a drastic remedy, litigants should consider whether to pursue it more aggressively. In a number of recent decisions, New York trial and appellate courts have taken a no-tolerance approach to bad behavior in discovery and have invoked CPLR 3126(3) to strike pleadings. Court are more and more often heeding the directive of the Court of Appeals that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously” and “disregard of deadlines should not and will not be tolerated.” Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 N.Y.3d 514, 521 (N.Y. 2005).
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Recent Supreme Court Decision Significantly Narrows the Scope of the Computer Fraud and Abuse Act
The Supreme Court’s recent decision in Van Buren v. United States, 141 S.Ct. 1648 (2021), resolves a longstanding circuit split over the scope of the Computer Fraud and Abuse Act of 1986, and appears to have significantly narrowed the reach of a statute that has often been criticized as criminalizing too broad a range of computer-related conduct.
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Employment and Ethics Obligations for Departing Attorneys: Checking in on a Pending Case
Many ethics attorneys were intrigued by media reports of a complaint filed in February by Elliott Greenleaf, P.C. against four firm shareholder-attorneys and a paralegal who left the firm’s Wilmington office to join Armstrong Teasdale LLP. The complaint alleged that the defendants made secret plans to depart and “secretly copied and transferred out of the Firm certain client files, client correspondence, and Firm work product,” and “destroyed and shredded Firm files.” That was only one side of the story, of course. Hearing nothing about the other side, we checked the docket to see if the case had quickly settled, as many similar cases do. It turns out that the case is very active, and it continues to raise issues of interest to practitioners in this area.