Expert Analysis

• Case Law Is Mixed On D&O Coverage For Gov't Investigations

  

  As the Fourth Circuit’s recent decision in Brown Goldstein v. Federal Insurance Co. demonstrates, federal appeals courts take different approaches to determine whether government investigations are covered by directors and officers liability insurance, so companies and individuals must review their policy language, say Chloe Law, Jan Larson and Caroline Meneau at Jenner & Block.

• Justices' Corruption Ruling May Shift DOJ Bank Fraud Tactics

  

  After the U.S. Supreme Court’s decision last month in Ciminelli v. U.S., curtailing a government theory of wire fraud liability, prosecutors may need to reconsider their approach to the bank fraud statute, particularly when it comes to foreign bank enforcement, says Brian Kearney at Ballard Spahr.

• SuperValu's Lesson: Always Be Building An FCA Defense

  

  The recent U.S. v. SuperValu decision confirming that scienter is an essential element of False Claims Act liability should motivate government contractors to prepare for allegations of material misrepresentation by building a record of their honorable efforts toward regulatory compliance, say David Resnicoff and Andrew Patton at Riley Safer.

• How Attys Can Avoid Exposing Their Firms To Cyberattacks

  

  Attorneys are the weakest link in their firms' cyberdefenses because hackers often exploit the gap between individuals’ work and personal cybersecurity habits, but there are some steps lawyers can take to reduce the risks they create for their employers, say Mark Hurley and Carmine Cicalese at Digital Privacy & Protection.

• Virginia 'Rocket Docket' Slowdown Is Likely A Blip

  

  After being the fastest or second-fastest federal civil trial court for 14 straight years, the Eastern District of Virginia has slid to 18th place, but the rocket docket’s statistical tumble doesn't mean the district no longer maintains a speedy civil docket, says Robert Tata at Hunton.

• NEPA Reforms May Aid Project Speed, But Red Tape Remains

  

  The Fiscal Responsibility Act of 2023 included amendments to the National Environmental Policy Act that are designed to streamline the federal environmental review process for infrastructure projects, but coordination with agencies and early stakeholder engagement are still likelier to lead to successful outcomes than time and page limits, say Jena Maclean and Stephanie Regenold at Perkins Coie.

• 4th Circ. Ruling Outlines Defense Against Retaliation Claims

  

  The Fourth Circuit's surprising decision in Johnson v. Global Language Center eschewed the low standard typically applied to demonstrating protected activities under Title VII and could affect internal complaint processes and the retaliation defenses available to employers, say Tory Summey and Zack Anstett at Parker Poe.

• An Overview Of OFCCP's Religious-Exemption Reset

  

  The recent rescission of a Trump-era rule that gave government contractors broader latitude under federal anti-discrimination rules doesn't prohibit employment decisions based on religious faith, but clarifies the factors a company must consider when seeking a religious exemption, say Zev Grumet-Morris and Christopher Durham at Duane Morris.

• High Court Underscores DOJ's Role In Policing FCA Litigation

  

  The U.S. Supreme Court's decision in Polansky v. Executive Health Resources reaffirms that the government has final say in False Claims Act cases, allowing for meaningful guardrails that deter private litigators from seeking to regulate industries that Congress has delegated to expert administrative agencies, say attorneys at Ropes & Gray.

• 5 Management Tips To Keep Law Firm Merger Talks Moving

  

  Many law firm mergers that make solid business sense still fall apart due to the costs and frustrations of inefficient negotiations, but firm managers can increase the chance of success by effectively planning and executing merger discussions, say Lisa Smith and Kristin Stark at Fairfax Associates.

• What NIH's New Grant Guidance Means For Awardees

  

  New guidance from the National Institutes of Health tightens grant requirements for international subawards, necessarily increasing accountability of foreign subrecipients and increasing the importance of prime awardees' efforts to plan carefully and educate key personnel, say attorneys at Ropes & Gray.

• Broader Implications Of High Court's Identity Theft Law Ruling

  

  The U.S. Supreme Court’s recent decision in Dubin v. U.S., vacating a medical services biller’s aggravated identity theft conviction, endorses a restrained interpretive approach for practitioners dealing with ambiguous criminal statutes, and serves as a warning to prosecutors, say Gabrielle Friedman and Zachary Shemtob at Lankler Siffert.

• Rethinking In-Office Attendance For Associate Retention

  

  The hybrid office attendance model doesn't work for all employees, but it does for many — and balancing these two groups is important for associate retention and maintaining a BigLaw firm culture that supports all attorneys, says Summer Eberhard at Major Lindsey.

• Bid Protest Spotlight: Timeliness, Discovery, Registration Gap

  

  In this month's bid protest roundup, Michaela Thornton at MoFo examines recent decisions from the U.S. Court of Federal Claims and the U.S. Government Accountability Office that consider the timeliness of a protest filing, discovery beyond the administrative record and a lapse in System for Award Management registration.

• FCA Liability Lessons From HHS Psychotherapy Audit

  

  The U.S. Department of Health and Human Services' recent finding of improper Medicare payments for psychotherapy services provided in 2020-2021 might inspire whistleblowers to pursue allegations under the federal False Claims Act, but there are reasons to be skeptical of converting these audit results into expansive FCA liability, say attorneys at Sidley.