No One Gets There Alone
While serving in the U.S. Army, I was lucky enough to be surrounded by wise and compassionate sergeants who regularly reminded me to “take care of soldiers,” and that “no one gets there alone.” That is the recognition that even the most accomplished, high-speed service members have leaned on the support of caring instructors, mentors, and peers along the way. And I knew that principle to be true, as countless sergeants and junior enlisted folk took care of me as an officer and kept me straight. 

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.

On Thursday, June 1, the Supreme Court issued its opinion in United States et al. ex rel. Schutte et al. v. SuperValu Inc., et al., No. 21-1326, 598 U.S. __ (2023) together with United States et al. ex rel. Proctor v. Safeway, Inc., No. 22-111. Justice Thomas wrote the unanimous opinion, which eviscerates the ability to get a False Claims Act (FCA) case dismissed at any stage pre-trial for failure to plead or prove scienter. But obtaining a dismissal or judgment pre-trial on this basis had always been a very long shot.

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.

For background on this case, please refer to Part I.

On April 18, 2023, the Supreme Court heard oral arguments in United States ex rel. Schutte v. Supervalu Inc., 9 F.4th 455, 459 (7th Cir. 2021) and United States ex rel. Proctor v. Safeway, Inc., 30 F.4th 649 (7th Cir. 2022) (consolidated). Much anticipated by False Claims Act practitioners, the argument previewed how the Supreme Court is thinking about the case. 

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. 

Below is the first in a three-part series on U.S. ex rel. Schutte et al. v. SuperValu Inc.

The story of one of the most significant False Claims Act (“FCA”) cases this year began nearly two decades ago. Between 2006 and 2012, SuperValu, Inc.—which operated thousands of pharmacies nationwide—offered a “price match program” whereby it discounted the prices of certain prescription drugs to “match” the prices charged by its competitors. United States ex rel. Schutte v. SuperValu, Inc., No. 11-3290, 2020 WL 3577996, at *3 (C.D. Ill. July 1, 2020). SuperValu, however, did not factor these discounts into the price it reported to government healthcare programs when submitting claims for reimbursement. Id. Instead, SuperValu reported prices set by its corporate pricing department, which were controlled by contract or by state law. Id. at *5.

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.

On Thursday, May 11, 2023 the Supreme Court will consider several petitions, presenting questions about whether and how federal judges can consider criminal conduct of which the defendant was acquitted in imposing sentence on other charges resulting in a conviction. It may not be exactly right to say that this issue has been “percolating” for a long time; the federal courts of appeals have treated it as having been resolved by the Supreme Court’s per curiam opinion in United States v. Watts, issued in January 1997. Watts summarily reversed two decisions by the Ninth Circuit that had precluded judges from considering conduct underlying acquitted charges when imposing a sentence.¹ It might be fairer to describe the law in the Circuits as having congealed around a decision that the Court issued without full briefing or oral argument and that is no longer valid on its own terms.

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.

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.

In March 2023, at the American Bar Association’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.