• Zuckerman Spaeder partner John J. Connolly posted an article called The Conscious Uncoupling of the Maryland and Federal Constitutions

    For more than 100 years, scores of Maryland decisions have suggested that state constitutional rights should be interpreted “in pari materia” with comparable rights in the U.S. Constitution. Although the rule has never been absolute, recent decisions suggest its force may be waning. This article looks at the recent decisions and discusses whether they represent a new direction for Maryland constitutional law.

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  • On August 23, 2023, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) finalized new rules and amendments under the Investment Advisers Act of 1940 (“Advisers Act”) to enhance the regulation of private fund advisers. According to the SEC, these new rules are intended to increase transparency, competition, and efficiency in the private funds sector. 

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  • White collar defense attorneys typically advocate on behalf of corporations and executives in the worlds of business and finance. It may not seem natural, then, to suggest that white collar lawyers would do well to pay attention to case law emerging in cases worlds away from the white collar realm: prosecutions of participants in the riot at the United States Capitol on January 6, 2021. But they should. Though the facts of these cases are far afield from typical white collar fare, many of them raise the issue of what it means to act “corruptly”—a mens rea question that applies to a broad range of white collar offenses. 

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  • In the wake of this decade’s initial redistricting cycle, judicial elections in several states have prompted courts in those states to reconsider their previous decisions on U.S. House district boundaries and composition. As a result, the nation is in a period of exceptional uncertainty about districting maps, with profound implications for congressional makeup and control.

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  • In an increasingly digital world, financial firms need to be mindful of the variety of electronic communication channels that their employees use for work. Even where firms require employees to use firm-managed email networks to communicate electronically about business matters, employees may also use unapproved, or “off-channel,” messaging platforms, such as iMessage and WhatsApp, to communicate with each other or their clients. This development presents a host of risks for financial firms that do not maintain records of these communications or enforce policies designed to crack down on this practice. 

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  • The rise of artificial intelligence (“AI”) poses novel questions about whether internet technology companies will face liability for misinformation on their platforms. Internet companies have long been shielded from liability by Section 230, passed as part of the Communications Decency Act of 1996, which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C.§ 230(c)(1). “In general, this section protects websites from liability for material posted on the website by someone else.”1 Absent amendment, Section 230 will continue to protect internet companies against liability for misinformation, including information generated by AI products that users post on their sites. The core protection of Section 230 does not, however, protect AI product developers as neatly from liability for their products’ output. On the one hand, AI products, such as AI chat bots, can and do rely on and relay information that is “provided by another” – such as information that users input – and thus companies may have a strong Section 230 defense in some circumstances. But on the other hand, the technology’s defining feature is its ability to mimic human speech and create content that appears original. This tension leaves the extent of Section 230’s liability protections for AI product developers unclear.

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  • On Friday, June 16, 2023, I (sort of) lost my bet that the Supreme Court would follow the path charted in Borzilleri v. Bayer Healthcare Pharmaceuticals, 24 F.4th 32 (1st Cir. 2022) to determine the government’s False Claims Act (FCA) dismissal authority. See previous blog post. Last fall I predicted that the Supreme Court would confirm the government possesses essentially unfettered discretion to dismiss an FCA case over a relator’s objection, subject to constitutional constraints. 

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  • Federal prosecutors will now be cabined in their ability to use aggravated identity theft charges to pressure defendants to plead guilty to other offenses in exchange for avoiding the two-year mandatory minimum, mandatory consecutive sentence that an aggravated identity theft conviction carries.

    David Dubin was convicted of healthcare fraud for overbilling Medicaid for psychological testing by overstating the qualifications of the employee who performed the testing and lying about when the testing took place. Mr. Dubin’s fraudulent billing included patients’ Medicaid numbers, which are a means of identification.1 

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  • No One Gets There Alone
    While serving in the U.S. Army, I was lucky enough to be surrounded by wise and compassionate sergeants who regularly reminded me to “take care of soldiers,” and that “no one gets there alone.” That is the recognition that even the most accomplished, high-speed service members have leaned on the support of caring instructors, mentors, and peers along the way. And I knew that principle to be true, as countless sergeants and junior enlisted folk took care of me as an officer and kept me straight. 

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  • For background on this case, please refer to Part I. For updates from the Supreme Court oral arguments on April 18, please refer to Part II.

    On Thursday, June 1, the Supreme Court issued its opinion in United States et al. ex rel. Schutte et al. v. SuperValu Inc., et al., No. 21-1326, 598 U.S. __ (2023) together with United States et al. ex rel. Proctor v. Safeway, Inc., No. 22-111. Justice Thomas wrote the unanimous opinion, which eviscerates the ability to get a False Claims Act (FCA) case dismissed at any stage pre-trial for failure to plead or prove scienter. But obtaining a dismissal or judgment pre-trial on this basis had always been a very long shot.

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As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

Contributing Editors
John J. Connolly

John J. Connolly
Partner
Email | +1 410.949.1149


Man

Andrew N. Goldfarb
Partner
Email | +1 202.778.1822


Sara Alpert Lawson_listing

Sara Alpert Lawson
Partner
Email | +1 410.949.1181


Nicholas DiCarlo

Nicholas M. DiCarlo
Associate
Email | +1 202.778.1835


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