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

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.

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. 

• Legal Ethics
• Legal Marketing
• Social Media
• Attorney Advertising

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).

• Discovery
• New York Courts
• Litigation

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.  

• Supreme Court

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. 

• Legal Ethics