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.

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. 

Zuckerman Spaeder partner John J. Connolly posted an article called The Conscious Uncoupling of the Maryland and Federal Constitutions. 

For more than 100 years, scores of Maryland decisions have suggested that state constitutional rights should be interpreted “in pari materia” with comparable rights in the U.S. Constitution. Although the rule has never been absolute, recent decisions suggest its force may be waning. This article looks at the recent decisions and discusses whether they represent a new direction for Maryland constitutional law.

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. 

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. 

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.

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. 

The rise of artificial intelligence (“AI”) poses novel questions about whether internet technology companies will face liability for misinformation on their platforms. Internet companies have long been shielded from liability by Section 230, passed as part of the Communications Decency Act of 1996, which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C.§ 230(c)(1). “In general, this section protects websites from liability for material posted on the website by someone else.”¹ Absent amendment, Section 230 will continue to protect internet companies against liability for misinformation, including information generated by AI products that users post on their sites. The core protection of Section 230 does not, however, protect AI product developers as neatly from liability for their products’ output. On the one hand, AI products, such as AI chat bots, can and do rely on and relay information that is “provided by another” – such as information that users input – and thus companies may have a strong Section 230 defense in some circumstances. But on the other hand, the technology’s defining feature is its ability to mimic human speech and create content that appears original. This tension leaves the extent of Section 230’s liability protections for AI product developers unclear.

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. 

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.

David Dubin was convicted of healthcare fraud for overbilling Medicaid for psychological testing by overstating the qualifications of the employee who performed the testing and lying about when the testing took place. Mr. Dubin’s fraudulent billing included patients’ Medicaid numbers, which are a means of identification.¹