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 the near future.

• Climate Change

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:

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.

• Legal Ethics
• First Amendment

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.

• White Collar Crime
• Department of Justice
• American Bar Association

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.

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. 

• COVID-19
• Vaccines
• Workplace Conditions (Occupational Safety and Health)

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).

• False Claims Act
• Civil Litigation

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.  

• CARES Act
• Compassionate Release
• The First Step Act

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.

• Discovery
• Litigation

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.

• Insurance
• Health Care
• United Healthcare