HHS Drug Price Advertising Proposal Reveals Sweeping View of Government Power over Private Speech

Featured Expert Contributor, First Amendment

By Megan Brown, a Partner with Wiley Rein LLP, with Bert Rein and Steve Obermeier, Partners with the firm.

Ed. Note: This is Ms. Brown’s inaugural post as the WLF Legal Pulse’s latest Featured Expert Contributor.

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The Department of Health and Human Services has proposed a new rule to “require direct-to-consumer (DTC) television advertisements of prescription drugs and biological products for which payment is available through or under Medicare or Medicaid to include the Wholesale Acquisition Cost (WAC, or ‘list price’) of that drug or biological product.”  Put more simply, if a drug company runs a TV ad, it will have to include the “list price” of the drug, even though that is not what consumers or insurers would pay.  The proposed rule’s stated goal is to ensure that “beneficiaries are provided with relevant information about the costs of prescription drugs and biological products so they can make informed decisions that minimize not only their out-of-pocket costs, but also expenditures borne by Medicare and Medicaid.” Continue reading “HHS Drug Price Advertising Proposal Reveals Sweeping View of Government Power over Private Speech”

DOJ Issues New Guidance on Corporate Monitors Reflecting More Pragmatic Approach

White Collar Crime & Corporate Compliance

Brower_GregGarnettStanGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Stanley L. Garnett, a Shareholder in the firm’s Denver, CO office.

In an October 12 speech at the NYU School of Law last Friday, the head of the Department of Justice’s (DOJ) Criminal Division announced a policy memo that sets forth the department’s new process for the approval of corporate monitorship agreements and the selection of monitors. Assistant Attorney General for the Criminal Division Brian A. Benczkowski explained that the new policy follows a recent review of DOJ’s corporate enforcement policies led by Deputy Attorney General Rod Rosenstein. Continue reading “DOJ Issues New Guidance on Corporate Monitors Reflecting More Pragmatic Approach”

Litigation Funding Slides Downmarket

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1McMinn_Donald_MainJoe G. Hollingsworth, Partner, Hollingsworth LLP, with Donald R. McMinn, a Partner with the firm.

Through their investments in a lawyer’s case(s), litigation funders have fomented economically shaky litigation while making that litigation’s resolution more difficult by disguising the settlement decision maker.  Now litigation funders are entering a new market—one composed of the plaintiffs themselves, rather than their attorneys.  Their new approach is, quite possibly, worse than their initial one.

Web-based platforms speak of creating an ostensible “peer-to-peer” approach by which even individuals can invest in the lawsuits of others.  The platforms allow would-be funders to pick and choose which lawsuits in which to invest and then direct the investment straight to plaintiffs, not their lawyers.  Plaintiffs trade their receipt of funds now in return for agreeing to repay the lender out of any recovery.  Continue reading “Litigation Funding Slides Downmarket”

U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage

Brower_GregMoschellaWilliamE@2xFeatured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

The Department of Justice (DOJ) recently announced an indictment charging a Chinese government official with attempting to steal trade secrets and other sensitive information from an American aerospace company.  This is not the first indictment of its kind.  In fact, in announcing the indictment, Assistant Attorney General John Demers remarked that “[t]his is not an isolated incident.”  He explained that this case “is part of an overall economic policy of developing China at American expense.”  What makes this case unique is that fact that the Chinese defendant is now in U.S. custody after being extradited from Belgium.  Continue reading “U.S. Makes Unprecedented Arrest of Chinese Government Official Accused of Economic Espionage”

Encouraging Signals on Merger Review from DOJ’s Antitrust Division

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP.

Recently, Assistant Attorney General Makan Delrahim of the U.S. Department of Justice’s Antitrust Division gave a speech that offered a new vision for how DOJ approaches the merger review process. The most notable feature of Mr. Delrahim’s speech—certainly the one garnering the most press attention—is his goal of completing Second Request merger investigations in six months.

For those unfamiliar with DOJ antitrust enforcement, a “Second Request” is issued by the DOJ (or the Federal Trade Commission) at the end of the initial 30-calendar-day waiting period under the Hart-Scott-Rodino filing process. A Second Request consists of an extensive list of document and data requests, and frequently includes numerous depositions of company executives. A Second Request often requires the production of millions of documents and terabytes of data. Currently, it is not uncommon for a Second Request investigation to take 12-15 months or more to complete. Mr. Delrahim cited a study that indicated the average time for the agencies to complete a significant merger review has increased by 65% in the last five years. A dedicated effort to shorten this process is welcome indeed. Continue reading “Encouraging Signals on Merger Review from DOJ’s Antitrust Division”

Delinquent State Safety Regulators, Particularly Cal/OSHA, Catch Up with OSHA’s E-Recordkeeping Rule

connDeaconGuest Commentary

By Eric J. Conn and Dan C. Deacon; Mr. Conn is a founding partner of Conn Maciel Carey LLP in Washington, DC and Chair of the OSHA • Workplace Safety Group, and Mr. Deacon is an associate with the firm. The two recently wrote a WLF Legal Backgrounder on OSHA’s efforts to alter the E-Recordkeeping Rule and the further steps OSHA must take.

Ed. Note: This commentary originally appeared in Conn Maciel Carey LLP’s OSHA Defense Report and is reprinted with permission.

When the federal Occupational Safety and Health Administration (OSHA) promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans (i.e. state occupational safety and health agencies) adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication.  However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by OSHA.  Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from OSHA under the new Trump Administration. Continue reading “Delinquent State Safety Regulators, Particularly Cal/OSHA, Catch Up with OSHA’s E-Recordkeeping Rule”

U.S. ex rel. Rose v. Stephens Institute: The Ninth Circuit Considers Escobar and its Materiality Mandate

Stephen_Wood_03032014Featured Expert Contributor, False Claims Act

Stephen A. Wood, Chuhak & Tecson, P.C.

Ed. Note: This is Mr. Wood’s inaugural post as the WLF Legal Pulse‘s latest Featured Expert Contributor. Mr. Wood is a Principal in Chuhak & Tecson’s Chicago, IL office and chairs the litigation practice group. He has authored numerous WLF publications over the past five years on the False Claims Act and other complex litigation matters.

Ever since the Supreme Court issued its opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the lower courts have wrestled with the interpretation and application of the Supreme Court’s holding. The United States Court of Appeals for the Ninth Circuit became one of the latest reviewing courts to consider Escobar and its effect on that Circuit’s existing False Claims Act precedent.  The result in United States ex rel. Rose v. Stephens Institute, No. 17-15111, 2018 WL 4038194 (9th Cir. Aug. 24, 2018) was mixed.  The Court of Appeals held that Escobar overruled one precedent, but, in a sharply divided opinion, not another, thus demonstrating that Escobar continues to divide courts, especially over the element of materiality, foreshadowing further Supreme Court involvement in False Claims Act jurisprudence.  That involvement could come soon given that a petition for writ of certiorari is pending based on the Ninth Circuit’s decision in United States ex rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890 (9th Cir. 2017), a case that also turned on whether the defendant’s claimed violations were material.  Continue reading U.S. ex rel. Rose v. Stephens Institute: The Ninth Circuit Considers Escobar and its Materiality Mandate”