• 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Circuits as having congealed around a decision that the Court issued without full briefing or oral argument and that is no longer valid on its own terms.

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  • 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.

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  • 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.

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  • 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. 

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  • The Justice Department’s invited amicus curiae brief in Blassingame v. Trump1 exposes another anomaly in treating the President’s scope of employment as a question of state tort law for purposes of the Westfall Act. In considering whether the President is a federal employee for purposes of the Westfall Act in the Carroll v. Trump matter, why didn’t the district court and the Second Circuit majority address the doctrine of presidential immunity? 

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  • What’s in a name?  If it’s in a warrant and you’re in the Eleventh Circuit, enough to arrest and jail you for three days even if you don’t match the description of the wanted person, the warrant was issued 26 years earlier from another state, and the same law enforcement agency mistakenly arrested you on the same warrant four years earlier.  Sometimes a court issues a decision that, while a plausible consequence of prior holdings, is so wrong-headed that it requires a re-examination of the false doctrinal steps that led to it.  The en banc Eleventh Circuit’s recent decision in Sosa v. Martin County (Fl.) Sheriff,1 is an example.

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  • On January 11, the full complement of active judges of the District of Columbia’s highest court spent more than two and a half hours hearing oral argument about the District’s respondeat superior liability standard in Trump v. Carroll. The U.S. Court of Appeals for the Second Circuit certified to the DC Court of Appeals the question whether former President Trump was acting within the scope of his employment under District law when he made allegedly defamatory statements after E. Jean Carroll accused him in a magazine article of having sexually assaulted her decades earlier. It is understandable that none of the judges asked why District law should control, given that all parties to the case agreed that the District’s standard should determine whether the former president has immunity to Ms. Carroll’s suit.

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  • Update January 23, 2023: The Court today dismissed the writ of certiorari as improvidently granted. 

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    The Supreme Court’s first oral argument of 2023 involved a grand jury subpoena to a law firm for records related to tax preparation and advice given to a client who wanted to expatriate and was therefore subject to an “exit tax” for departing citizens. The firm refused to produce certain documents, even with statements of legal advice redacted. The district court held the firm in civil contempt, and the firm appealed the contempt order. The Ninth Circuit, in an opinion by Judge Lee, joined by Judges Murgia and Bade, upheld the order, rejecting the law firm’s arguments that the documents were subject to the attorney-client privilege because obtaining or providing legal advice was a significant purpose of the communications.1

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  • Originally published on Law.com’s Corporate Counsel, Zuckerman Spaeder partner Sara Alpert Lawson shares her reflection on generational diversity in the workplace—in the legal industry and beyond. She discusses the effects of technological changes, the value of mentoring and supporting the younger generation of lawyers, and overall, the importance of taking time to understand the shift toward inclusivity and generational differences.

    Read the full article here.

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  • In 2010, Congress amended the Anti-Kickback Statute (the “AKS”) to provide that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the False Claims Act (the “FCA”). 42 U.S.C. § 1320a-7b(g) (emphasis added). Since that amendment, courts have wrestled with the statute’s “resulting from” requirement, and FCA plaintiffs and defendants alike have attempted to interpret the language to their advantage. Recently, the Eighth Circuit weighed in and determined that FCA claims premised on violations of the AKS require relators and the government to show “but-for” causation between alleged kickbacks and submitted claims. 

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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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