The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading “The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted”

Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers

supreme courtIn a US Supreme Court term filled with cases that “only a lawyer could love,” the justices did issue at least one decision in October Term 2016—Nelson v. Colorado—that any TV crime-drama viewer can understand. The decision turned on the bedrock principle that the accused is innocent until proven guilty. While Justice Ginsburg’s opinion applies directly to a Colorado law, it could prove highly influential in the ongoing debate over civil-asset forfeiture, a controversial law-enforcement practice. Continue reading “Supreme Court’s Presumption-of-Innocence Decision Should Inspire Asset-Forfeiture Reformers”

Supreme Court Cert Grant in “Farha v. US” Can Clarify Level of Criminal Intent Needed to Prove “Knowledge”

johnlauroGuest Commentary

By John Lauro, a white-collar defense attorney who represented one of the WellCare defendants at trial and at the Eleventh Circuit.

On Friday, April 21, 2017, the US Supreme Court will meet in conference to consider a pending petition for certiorari in Farha v. United States, No. 16-888, a major white-collar fraud case raising an important issue of concern to the defense bar and their clients: whether “deliberate indifference” is a sufficient level of mens rea for proving “knowledge” with respect to federal criminal statutes.  The High Court should grant review and reverse the US Court of Appeals for the Eleventh Circuit ruling holding otherwise.

Farha is a classic case of overcriminalization, where civil and administrative remedies are more appropriate in the regulatory area of complex healthcare and business law. The case was extensively discussed in prior postings at the WLF Legal Pulse (here and here) and a WLF Legal Backgrounder [hot link to Kaiser’s piece]. In brief, following a raid by 200 FBI Agents at the offices of WellCare, a Florida Medicaid health maintenance organization, several executives, including the CEO, CFO, and general counsel, were indicted on healthcare fraud charges based on the government’s interpretation of Florida’s Medicaid law.   Continue reading “Supreme Court Cert Grant in “Farha v. US” Can Clarify Level of Criminal Intent Needed to Prove “Knowledge””

FEDERAL REGULATORY READING LIST: Resources for New Leaders at DOJ

DOJ*Note: This is the third in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To read posts addressing other federal agencies, click here.

As the federal government’s primary prosecutor, the Department of Justice (DOJ) serves an important role in enforcing criminal penalties.  However, DOJ frequently oversteps its bounds and advances overzealous enforcement policies.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over DOJ’s recent policies and actions with timely papers and blog commentaries, and weighed in directly through amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  This post provides a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.

Overcriminalization Timeline

In November 2015, WLF released the third edition of its Timeline: Federal Erosion of Business Civil Liberties (Overcriminalization Timeline).  Each category in the Timeline reflects a separate concern with DOJ’s approach to white-collar criminal enforcement: mens rea, DOJ criminal enforcement, attorney-client and work product privileges, deferred prosecution and non-prosecution agreements, and criminal sentencing. Continue reading “FEDERAL REGULATORY READING LIST: Resources for New Leaders at DOJ”

Should Pharmaceutical Manufacturers be Forced to Produce a Product Against Their Will?

5th-aAs the beginning of a new administration nears, politicians and pundits have been floating many ideas for regulating the cost and availability of pharmaceuticals and other medical treatments. One of the worst ideas being discussed is the judicial creation of a common-law duty to manufacture. Thankfully, there are significant Constitutional and judicial hurdles preventing this duty from materializing.

In order to develop and produce innovative, life-saving drugs, pharmaceutical manufacturers must go through incredibly expensive and time-consuming clinical trials required by the rigid guidelines of the Food and Drug Administration (FDA). As an incentive to go through this process, these companies receive patents to help them recoup the costs of the clinical trials. In some instances, however, even with market exclusivity, manufacturers are unwilling to continue producing these drugs, often because production ceases to be economically feasible. Continue reading “Should Pharmaceutical Manufacturers be Forced to Produce a Product Against Their Will?”

DOJ Announces Intent to Go Criminal in Wage-Fixing and No-Poaching Antitrust Cases

swisherFeatured Expert Contributor — Antitrust & Competition, U.S. Department of Justice

Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP

In April of this year President Obama issued an executive order designed to “protect American consumers and workers and encourage competition in the U.S. economy … .” The order aimed to expand competition policy beyond just the Justice Department Antitrust Division (DOJ) and the Federal Trade Commission (FTC), and encouraged every federal agency to consider ways to enhance competition when drafting and enforcing each given agency’s regulations. A notable element of the President’s executive order was the promotion of competition in labor markets. The order asserted that the economic growth that flows from competitive markets “creates opportunity for American workers,” and that anticompetitive practices can reduce those opportunities. Continue reading “DOJ Announces Intent to Go Criminal in Wage-Fixing and No-Poaching Antitrust Cases”

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • Be the boss, go to jail?: Responsible corporate office doctrine threatens C-suite executives with prosecution for unknown acts of employees (Corporate Counsel)
  • Due-process arguments and state-court class actions (Class Action Countermeasures)
  • The Supreme Court and laches: Reading into the SCA Hygiene oral argument (Patently-O)
  • New York Court of Appeals finds unconventional litigation-financing agreement constitutes champerty (D&O Diary)
  • The meaning of “foreign official” in the Foreign Corrupt Practices Act remains elusive (FCPA Professor)
  • Federal trial court applies general-jurisdiction principles from Bauman in class-action lawsuit (Drug & Device Law)
  • Has the famed Gateway to the West become a gateway to a pot of gold? : Huge talc litigation verdict furthers St. Louis’s pro-plaintiff reputation (Guideposts Punitive Damages Blog)
  • In State of Washington, communications between in-house counsel and former employees are no longer protected per 5-4 state supreme court ruling (Corporate Counsel)
  • Northern District of California gives Spokeo decision a Lyft in rejecting plaintiffs’ standing to sue the ride-sharing company (Classified)