• In 2010, Congress amended the Anti-Kickback Statute (the “AKS”) to provide that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the False Claims Act (the “FCA”). 42 U.S.C. § 1320a-7b(g) (emphasis added). Since that amendment, courts have wrestled with the statute’s “resulting from” requirement, and FCA plaintiffs and defendants alike have attempted to interpret the language to their advantage. Recently, the Eighth Circuit weighed in and determined that FCA claims premised on violations of the AKS require relators and the government to show “but-for” causation between alleged kickbacks and submitted claims. 

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  • Experts are a key part of any complex litigation. Being part of an expert team as an associate can mean taking charge of all the little (but still important) things: shuttling relevant documents to the expert, keeping track of what gets sent so that you have an accurate materials considered list, proofreading and cite checking the expert report, and putting together the final expert package for service. But there are opportunities for associates to make significant substantive contributions when working with experts as well. Below are three ways associates can do that.

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  • Remote depositions were once thought to be a short-term solution to one of the many challenges of practicing law in a global pandemic. But considering the efficiencies in time and cost when taking a remote deposition, and attorneys’ increasing comfort with this format, it’s now safe to say that they are here to stay. After more than two years of taking, defending, and facilitating remote depositions, here are five tips for ensuring a smooth experience in the virtual deposition room. 

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  • Anyone who lives or works in Baltimore, Maryland is familiar with the “squeegee kids.” When stopped at a red light downtown, it’s not uncommon for someone—usually a teenage boy of color—to approach your car with an offer to clean your windshield for money. Most of these interactions are, in my experience, unremarkable. But some find them irritating, and many lament that the squeegee workers’ business model, which involves weaving between cars at busy intersections, is dangerous. Even worse, on rare occasions, hostilities erupt between the squeegee workers and the drivers they encounter. One such encounter earlier this year had tragic and fatal consequences.1

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  • What happens when the Supreme Court changes the interpretation of the law under which a federal inmate was convicted, such that the person would be innocent under that new interpretation? On November 1, the Supreme Court is set to hear argument in Jones v. Hendrix, 21-857, which asks the Court to resolve a circuit split regarding the scope of 28 U.S.C. § 2255(e). Section 2255(e), the so-called “saving clause,” allows federal inmates to collaterally challenge their convictions through traditional habeas actions under 28 U.S.C. § 2241 where “it appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.” While most courts of appeals allow federal inmates to use the saving clause to bring habeas actions when the law under which they were convicted changes and those changes are retroactive, the Eighth, Tenth, and Eleventh Circuits do not. The particular circumstances of the Jones case may impact the Court’s treatment of the issue. 

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  • In government contracting fraud cases with no actual or intended loss, defense attorneys should be on the lookout for prosecution attempts to invoke the “government benefits rule” to estimate “total gain” as an alternative measure of “actual loss.” That method can result in a much higher recommended sentence under § 2B1.1 of the U.S. Sentencing Guidelines (Guidelines). But the prosecution’s position may rest on an outdated version of the Guidelines (U.S.S.G. § 2F1.1 [deleted]) or caselaw decided under that version. More recent decisions suggest that government contracting fraud cases decided under § 2F1.1 are no longer persuasive.

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  • The Supreme Court is scheduled to hear argument on November 8 in Mallory v. Norfolk Southern Railway Co., 21-1168, and it appears ready to resolve a longstanding issue that has divided lower courts. That issue is whether it is constitutional for a state to condition a corporation’s right to do business in the state upon the corporation’s consent to personal jurisdiction in the state’s courts.
     

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  • View the article online: https://www.science.org/doi/10.1126/science.abq4981
    By Murray M. Lumpkin, Margaret A. Hamburg, William B. Schultz, Joshua M. Sharfstein

    During the COVID-19 pandemic, scientists at the US Food and Drug Administration (FDA) have reviewed large numbers of pandemic-related tests, medications, and vaccines. However, long-standing confidentiality practices have kept FDA from sharing many of these analyses and the data behind them with the regulatory agencies of other nations, especially those in low- and middle-income countries (LMICs). With FDA not sharing key information, the primary source of dependable COVID-19 product regulatory documentation and information for resource-constrained countries has been the World Health Organization (WHO) in coordination with leading European regulators. These efforts are commendable, but in many cases FDA’s assessments will be some of the most sought after and scientifically robust in the world—and should be shared with the widest possible regulatory audience. FDA must demonstrate similar leadership and commitment to global health by reforming its outdated, restrictive practices on information sharing.

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  • When I told my clerkship adviser in 2015 that I was hoping to land a federal district court clerkship in or around Washington, DC (my husband was threatening to leave me if I made him move cross-country again, only mostly joking), he excitedly suggested I apply to the fairly recently appointed Judge Ketanji Brown Jackson. She sounded phenomenal, and I was eager for the chance to learn from such a brilliant lawyer and jurist. 

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  • Wiretapping—the interception of wire, oral, or electronic communications—has long been an effective tool for law enforcement investigating suspected criminal activity. Each June, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 requires the Administrative Office of the United States Courts to report to Congress on wiretaps approved, extended, or denied.1  The annual “Wiretap Report” has been criticized by prosecutors, judges, and other stakeholders as outdated and incomplete, including because the forms used to collect the relevant information have overlapping categories, are not uniformly understood by prosecutors, and are frequently submitted late, if at all.2  Still, the report provides the only regularly published, non-anecdotal account of national trends in wiretapping and the associated invasions of privacy.

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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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