A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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In 2016 the U.S. Supreme Court handed down its decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a watershed in False Claims Act jurisprudence.  The Petitioner asked the Court to decide whether the statute permitted liability for falsely certifying compliance with federal requirements where that certification was not expressly stated, but implied by a defendant’s conduct.  On that issue, the High Court held unanimously in the affirmative, resolving a conflict among the courts of appeals.

In response to defense arguments that the theory would dramatically expand the scope of False Claims Act liability, the Court sought to reassure government contractors that certain pleading and proof principles applicable to these cases would constrain post-Escobar expansion of False Claims Act liability.  Expansive liability “‛can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.’ Those requirements are rigorous.”  Escobar, 136 S. Ct. at 2002 (citations omitted).  The Court’s statements regarding the element of materiality in particular have spawned significant litigation in federal courts throughout the country over what type and quantum of evidence bears on the question of whether a claimed violation is material. Continue reading “A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie

Justice Department Revisits the Wire Act but Stays Enforcement, for Now

Featured 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.

On January 14, 2019, the Department of Justice quietly released a new Office of Legal Counsel (OLC) opinion that sent shockwaves through the internet gambling industry. The opinion purports to reverse OLC’s longstanding interpretation of the federal Wire Act, clarifying that the law applies to all forms of wagering activity that crosses state lines, not just sports betting. The Deputy Attorney General quickly followed up this surprising development with a memorandum directing federal prosecutors to refrain from applying this new interpretation in criminal or civil actions for a period of 90 days. Continue reading “Justice Department Revisits the Wire Act but Stays Enforcement, for Now”

Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The future of patent-infringement challenges under 35 U.S.C. § 101 may be in the hands of the Solicitor General of the United States. The defendant in Berkheimer v. Hewlett Packard petitioned the U.S. Supreme Court to grant certiorari and overturn a U.S. Court of Appeals for the Federal Circuit decision that applied the high court’s Alice Corporation v. CLS Bank International decision. Hewlett Packard petitioned after the Federal Circuit denied rehearing en banc, a denial that included an exasperated concurrence by two judges seeking further guidance on how the court should interpret Alice. On January 7, the Supreme Court requested the views of the Solicitor General. Continue reading “Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?”

NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

In Whelan v. Armstrong International, the New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  Whelan v. Armstrong International, 190 A.3d 1090 (2018). Continue reading “NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure”

DOJ Updates Justice Manual to Formalize Guidance about Guidance

Featured 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.

Back in November 2017, then Attorney General Jeff Sessions issued a memorandum entitled “Prohibition on Improper Guidance Documents.”  This Sessions Memo included guidance concerning DOJ’s issuance of guidance that has not gone through the formal rulemaking process.  The Sessions Memo essentially provided that DOJ components may not use guidance documents to create legally binding requirements.  The point was to prohibit agencies from, in effect, creating de facto regulations outside of the formal rulemaking process.

Subsequently, in January 2018, then Associate Attorney General Rachel Brand issued a memorandum acknowledging the Sessions Memo as a “Guidance Policy,” and more specifically directing that Department litigators follow this Guidance Policy in determining the legal relevance of both DOJ and other agencies’ guidance documents in affirmative civil enforcement matters. Continue reading “DOJ Updates Justice Manual to Formalize Guidance about Guidance”

Ninth Circuit Narrowly Vindicates First Amendment in Bellwether Compelled Speech Case

Featured Expert Contributor, First Amendment

By Megan Brown, a Partner with Wiley Rein LLP, with Jeremy Broggi, an Associate with the firm.*  Wiley Rein LLP represents the United States Chamber of Commerce as amicus in American Beverage Ass’n v. San Francisco.

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The tide may be turning on commercial free speech in the context of forced disclosures and warnings, as parties wait for further clarification from the Supreme Court on the level of protection due private speech.  The Ninth Circuit’s recent en banc decision in American Beverage Association v. City and County of San Francisco, No. 16-16072 (9th Cir. Jan. 31, 2019), is a limited step in the right direction, though as concurring opinions make clear, much more needs to be done to fix the doctrinal confusion about compelled speech and properly limit the power of government. Continue reading “Ninth Circuit Narrowly Vindicates First Amendment in Bellwether Compelled Speech Case”

Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California

Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

California is broadening the legal landscape of food-labeling class actions to the dismay of the food and beverage industry.  The Southern District of California in Hilsley v. Ocean Spray Cranberries, Inc. et al. has thrown the doors open for class certification in food-labeling cases.  The court issued an opinion partially certifying a class of consumers consisting of California citizens who purchased one of various Ocean Spray Cranberries, Inc. (“Ocean Spray”) products, such as Ocean Spray Cran Apple or Cran Raspberry, that contain labels which state, “‘No . . . artificial flavors’ when in fact the products contain artificial flavoring chemicals that simulate the advertised fruit flavors.”  Id. at “2. Continue reading “Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California”