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Supreme Court To Decide Significant Case on False Claims Act's Scienter Standard

On January 13, 2023, the Supreme Court granted certiorari in a pair of consolidated cases from the Seventh Circuit that could result in one of the most consequential False Claims Act (FCA) decisions since the FCA was amended...more

Major Decision on Major Questions Doctrine, Agency Regulatory Discretion

The Clean Power Plan is a program developed by the Environmental Protection Agency to reduce greenhouse gas emissions by forcing electric power generation to shift from coal-fired plants to renewable sources, such as wind and...more

Fourth Circuit’s Decision Bolsters Trend Toward Objective Scienter Standard Under the False Claims Act

On January 25, 2022, in United States ex rel. Sheldon v. Allergan Sales, LLC, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that a defendant accused of violating the False Claims Act (FCA) by...more

Future Of Issue Exhaustion In Agency Rulemaking Challenges

Participants in administrative proceedings are routinely cautioned to raise, or "exhaust," all issues with the agency to avoid being barred from later raising those issues in court. But whether a court will require issue...more

Nestle USA, Inc. v. Doe: Supreme Court Clarifies US Corporate Liability for Human Rights Violations Overseas

In a decision issued June 17, the US Supreme Court further limited the ability of plaintiffs to seek redress in US courts for human rights abuses that occur overseas, but did not go as far in restricting those suits as some...more

Supreme Court Holding Emphasizes Importance of Building an Administrative Record Before an Agency

On April 1, 2021, in Federal Communications Commission v. Prometheus Radio Project, the Supreme Court unanimously held that a decision by the Federal Communications Commission (FCC) to repeal or modify three ownership rules...more

D.C. Circuit Forfeiture Holding Highlights Importance of Involving Litigation Counsel in the Early Stages of Administrative Agency...

On February 26, 2021, in Springsteen-Abbott v. Securities and Exchange Commission, a panel of the U.S. Court of Appeals for the D.C. Circuit held that a petitioner challenging sanctions imposed by the Financial Institutions...more

Expectations For CFPB's Fair Lending Agenda Under Biden

It is clear just a few weeks into the Biden administration that fair lending and racial equity will return as a central focus of regulators under President Joe Biden. Biden issued a memorandum his first week in office...more

The Role of Compliance in Government Enforcement

As recent developments in corporate enforcement indicate, the United States Department of Justice (DOJ) continues to emphasize transparency, cooperation, and the importance of a strong compliance program. Enforcement trends...more

The National Rapid Response Strike Force: Reinforcing DOJ’s Commitment to Targeting Health Care Fraud

Last week, the United States Department of Justice (“DOJ”) announced the creation of the National Rapid Response Strike Force (“NRR Strike Force”) within the DOJ’s Health Care Fraud Unit. The announcement was made in...more

A Constitutional Analysis of the Affordable Housing Credit Improvement Act of 2019

This article considers the constitutionality of certain provisions of proposed legislation, the Affordable Housing Credit Improvement Act of 2019. One provision of the bill - apparently offered in legislative response to a...more

Immunity Under the Prep Act: When Does It Apply to Private Sector Efforts to Help Combat COVID-19?

America’s response to the COVID-19 pandemic will require widespread coordination between the public and private sectors. There is a pressing need for more testing kits and test sites, new treatment and isolation facilities,...more

COVID-19: Challenges and Considerations for Coronavirus-Related Litigation

The outbreak of the novel coronavirus (COVID-19) has affected nearly all individuals and businesses in the United States. With over 350,000 cases confirmed worldwide, including over 30,000 cases in the United States, federal,...more

DOJ Inability to Pay Guidance: Beyond Corporate Formalities

On October 8, 2019, the US Department of Justice (DOJ or Justice Department) issued new guidance on evaluating inability-to-pay arguments in a memorandum to the Criminal Division. The memorandum provides considerably more...more

A Divided Supreme Court Narrowly Upholds Auer Deference

On June 26, 2019, the US Supreme Court issued a decision in Kisor v. Wilkie. The question presented in Kisor was whether to overrule the Court’s prior decisions in Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole...more

Justice Department Establishes New Guidelines on Giving Credit for Disclosure Cooperation and Remediation in False Claims Act...

On May 6, 2019, the Justice Department issued new policies establishing how defendants in False Claims Act (FCA) matters can earn credit for voluntary self-disclosure, cooperation, and remediation, possibly reducing what...more

The Role of Compliance in Government Enforcement

As reflected in recent remarks by Deputy Attorney General Rod Rosenstein, the United States Department of Justice (DOJ) is “reinforcing its relationship with good corporate citizens” by coordinating with, and considering, the...more

DOJ Announces New Policy on Assessing the Need for and Selection of Corporate Monitors

On October 12, 2018 in remarks made at the NYU School of Law Program on Corporate Compliance and Enforcement’s Conference on Achieving Effective Compliance, Assistant Attorney General for the U.S. Department of Justice...more

Justice Department Issues Memo Limiting Use of Agency Guidance in Affirmative Civil Enforcement Suits

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil...more

Justice Department Issues Guidance on Dismissing Qui Tam False Claims Act Cases Over Relators' Objections

On January 10, the head of the Justice Department's Civil Frauds Section issued an internal memorandum instructing all Department attorneys handling False Claims Act (FCA) cases to consider whether, when declining to...more

Administrative Procedure Act Litigation: The Changing Regulatory Landscape, the Role of Industry, and Emerging Issues

As the Trump Administration concludes its fifth month, industry is facing a changing regulatory landscape that offers both opportunities and challenges. In this period of transition, litigation under the Administrative...more

Pratt's Government Contracting Law Report

In a unanimous decision, the U.S. Supreme Court recently upheld the “implied certification” theory of liability under the False Claims Act, while emphasizing that only material misrepresentations are actionable. In this...more

Supreme Court Upholds Implied Certification Liability, While Emphasizing Materiality Requirement

In Universal Health Services v. United States ex rel. Escobar, the Supreme Court today unanimously upheld the “implied certification” theory of liability under the False Claims Act (FCA), while emphasizing that only material...more

FTC Report Examines Legal and Policy Considerations for Big Data Analytics, Promises More Enforcement

The Federal Trade Commission's (FTC) recent report, Big Data: A Tool for Inclusion or Exclusion?, released on January 6, warns businesses engaged in big data analytics that the practice poses liability risks. While the FTC...more

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