• 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.

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  • 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. 

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  • 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 

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  • 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. 

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  • 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.

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  • 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.

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  • 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. 

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  • 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. 

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  • 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.

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  • 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.

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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.

Contributing Editors
John J. Connolly

John J. Connolly
Partner
Email | +1 410.949.1149


Man

Andrew N. Goldfarb
Partner
Email | +1 202.778.1822


Sara Alpert Lawson_listing

Sara Alpert Lawson
Partner
Email | +1 410.949.1181


Nicholas DiCarlo

Nicholas M. DiCarlo
Associate
Email | +1 202.778.1835


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