Expert Analysis

• The Metamorphosis Of The Major Questions Doctrine

  

  The so-called major questions doctrine arose as a counterweight to Chevron deference over the past few decades, but invocations of the doctrine have persisted in the year since Chevron was overturned, suggesting it still has a role to play in reining in agency overreach, say attorneys at Crowell & Moring.

• Arguing The 8th Amendment For Reduction In FCA Penalties

  

  While False Claims Act decisions lack consistency in how high the judgment-to-damages ratio in such cases can be before it becomes unconstitutional, defense counsel should cite the Eighth Amendment's excessive fines clause in pre-trial settlement negotiations, and seek penalty decreases in post-judgment motions and on appeal, says Scott Grubman at Chilivis Grubman.

• $95M Caremark Verdict Should Put PBMs On Notice

  

  A Pennsylvania federal judge’s recent ruling that pharmacy benefits manager CVS Caremark owes the government $95 million for overbilling Medicare Part D-sponsored drugs highlights the effectiveness of the False Claims Act, as scrutiny of PBMs’ outsized role in setting drug prices continues to increase, say attorneys at Duane Morris.

• Series

  Playing Mah-Jongg Makes Me A Better Mediator

  

  Mah-jongg rewards patience, pattern recognition, adaptability and keen observation, all skills that are invaluable to my role as a mediator, and to all mediating parties, says Marina Corodemus.

• Bid Protest Spotlight: Conflicts, Evaluations, Materiality

  

  In this month's bid protest roundup, Brian Doll at MoFo examines three June decisions from the U.S. Government Accountability Office examining the U.S. Army’s handling of an impaired objectivity conflict of interest, the adequacy of oral evaluations, and whether a nonmaterial misrepresentation can sustain a protest.

• Diversity, Equity, Indictment? Contractor Risks After Kousisis

  

  The U.S. Supreme Court’s recent Kousisis v. U.S. decision, holding that economic loss is not required to sustain wire fraud charges related to fraudulent inducement, may extend criminal liability to government contractors that make false diversity, equity and inclusion certifications, say attorneys at Moore & Van Allen.

• Series

  Law School's Missed Lessons: Navigating Client Trauma

  

  Law schools don't train students to handle repeated exposure to clients' traumatic experiences, but for litigators practicing in areas like civil rights and personal injury, success depends on the ability to view cases clinically and to recognize when you may need to seek help, says Katie Bennett at Robins Kaplan.

• 9th Circ. Customs Ruling A Limited Win For FCA Plaintiffs

  

  While the decision last month in Island Industries v. Sigma may be welcome news for False Claims Act relators, under binding precedent courts within the Ninth Circuit still do not have jurisdiction to adjudicate customs-based FCA claims pursued by the government, say attorneys at Morgan Lewis.

• Opinion

  4 Former Justices Would Likely Frown On Litigation Funding

  

  As courts increasingly confront cases involving hidden litigation finance contracts, the jurisprudence of four former U.S. Supreme Court justices establishes a constitutional framework that risks erosion by undisclosed financial interests, says Roland Eisenhuth at the American Property Casualty Insurance Association.

• DOJ Actions Signal Rising Enforcement Risk For Health Cos.

  

  The U.S. Department of Justice's announcement of a new False Claims Act working group, together with the largest healthcare fraud takedown in history, underscore the importance of sophisticated compliance programs that align with the DOJ's data-driven approach, say attorneys at Debevoise.

• State Law Challenges In Enforcing Arbitration Clauses

  

  In recent cases, state courts in Pennsylvania, Massachusetts and New Jersey have considered or endorsed heightened standards for arbitration agreements, which can mean the difference between a bilateral arbitration and a full-blown class action in court, says Fabien Thayamballi at Shapiro Arato.

• How Attys Can Use AI To Surface Narratives In E-Discovery

  

  E-discovery has reached a turning point where document review is no longer just about procedural tasks like identifying relevance and redacting privilege — rather, generative artificial intelligence tools now allow attorneys to draw connections, extract meaning and tell a coherent story, says Rose Jones at Hilgers Graben.

• New FCPA Guidance May Flip The Whistleblowing Script

  

  The U.S. Department of Justice’s updated Foreign Corrupt Practices Act guidelines lay out a new incentive structure that may put multinational U.S.-based companies in an unusual offensive whistleblowing position, potentially spurring them to conduct external investigations of their foreign rivals, says Markus Funk at Perkins Coie.

• Justices Rethink Minimum Contacts For Foreign Entities

  

  Two recent U.S. Supreme Court decisions, Devas v. Antrix and Fuld v. Palestine Liberation Organization, suggest that federal statutes may confer personal jurisdiction over foreign entities that have little to no contact with the U.S. — a significant departure from traditional due process principles, says Gary Shaw at Pillsbury.

• New FCPA Guidance Creates 5 Compliance Imperatives

  

  In light of new Foreign Corrupt Practices Act guidelines that mark a fundamental shift in enforcement priorities, companies should consider several specific steps to ensure compliance, from enhanced due diligence to robust whistleblower protections, says Andrew Wirmani at Reese Marketos.