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Regulatory Litigation Blog

Holland & Knight's Regulatory Litigation Blog addresses federal regulatory issues and cases brought by and against the federal government, including regulatory and statutory enforcement actions, challenging agency actions under the Administrative Procedure Act, and testing the constitutionality of legislative and regulatory schemes.

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Regulatory and Federal Litigation Attorney Steven Gordon wrote an article for Law360 on President Trump’s executive order for directing agencies to eliminate two existing regulations for every new regulation adopted. Various parties have questioned whether the president can override this authority and if the courts will rule on the merits for judicial review under the Administrative Procedure Act (APA).
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May 23, 2019
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On May 13, 2019, the Supreme Court ruled in favor of iPhone owners who are suing Apple. The iPhone owners claim that Apple, through its App Store, has established a monopoly and uses that power to charge consumers more for iPhone apps. Apple v. Pepper et al., 587 U.S. __ (2019). Justice Kavanaugh penned the Court's 5-4 decision, in which Justices Ginsberg, Breyer, Sotomayor, and Kagan joined.
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May 16, 2019
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The U.S. Department of Justice (DOJ) released guidelines for evaluating self-disclosures and awarding cooperation credit in False Claims Act (FCA) cases. As expected, these guidelines set forth several key factors anticipated in our previous blog post, Cooperation Credit in False Claims Act Cases. The guidelines, which are codified in DOJ's Justice Manual, 4-4.11, Guidelines for Taking Disclosures, Cooperation, and Remediation into Account in False Claims Act matters (2019), provide a comprehensive list of activities and factors that may qualify for cooperation credit and identifies the types of benefits DOJ is willing to offer in exchange. In short, an entity or individual seeking to earn maximum credit should generally undertake a timely self-disclosure that includes identifying all individuals substantially involved in or responsible for the misconduct, provide full cooperation with the government's investigation and take remedial steps designed to prevent and detect similar wrongdoing in the future.
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May 9, 2019
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Last week, the DOJ Criminal Division published a guidance document entitled "Evaluation of Corporate Compliance Programs" (ECCP). This document is meant to assist prosecutors in determining what credit should be given to a corporation for having an effective compliance program when prosecutors decide whether to bring charges, what charges to bring, what amount of penalties to seek, or whether to impose a monitorship or reporting obligations on a corporation. The document is equally useful to companies that want to assess their current compliance program and determine whether any changes need to be made.
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Government Contracts attorney Megan Mocho Jeschke authored an article for Law360 titled "Looking For The Hows And Whys Of FCA Cooperation Credit." Ms. Jeschke explores how companies facing liability under the False Claims Act address tough decisions when cooperating with the Department of Justice.
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April 30, 2019
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Companies facing liability under the False Claims Act (FCA) often desire early resolution with the Department of Justice (DOJ) through settlement. Hand in hand with the decision to settle comes the decision of whether or not to cooperate.
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April 25, 2019
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Doctors, hospitals and others in the healthcare space should take to heart the increasingly aggressive position the U.S. Department of Justice (DOJ) is taking, including through an expansive application of state bribery laws under the Travel Act, in bringing federal healthcare prosecutions.
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On Monday the Supreme Court considered the scope of a Freedom of Information Act (FOIA) exemption allowing the government to withhold from public disclosure confidential business records that companies submit to the federal government. Food Marketing Institute v. Argus Leader Media, Case No. 18-481 (U.S., argued Apr. 22, 2019).
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As we have previously written (see Holland & Knight's alerts, "Legalized Industrial Hemp Production Is Coming (But It's Not Here Yet)," March 11, 2019, and "The Road Ahead for Cannabis-Derived Goods," Jan. 28, 2019), the 2018 Farm Bill included a provision from Senate Majority Leader Mitch McConnell (R-Ky.) that was designed to legalize industrial hemp on a broad scale. Fittingly, the current status of the much-anticipated legal hemp and cannabidiol (CBD) market can be described through lyrics from the popular Grateful Dead song: Though there's more than a "Touch of Grey," there's also more than enough of an underlying regulatory framework for industry to proclaim, "We will get by."
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In Knighton v. Cedarville Rancheria of Northern Paiute Indians, et al., No. 17-15515, 2019 WL 1145150 (9th Cir., March 13, 2019), the U.S. Court of Appeals for the Ninth Circuit issued a decision favorable to tribal sovereignty in affirming that the tribal court of the Cedarville Rancheria of Northern Paiute Indians (the Tribe) had jurisdiction over tort claims brought by the Tribe against a nonmember former employee of the Tribe.
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April 16, 2019
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The U.S. Department of Labor (DOL) announced on March 29, 2019, proposed changes to its existing joint employer regulation in Part 791 of Title 29, Code of Regulations. Specifically, the DOL's proposed rule will provide additional guidance for determining joint employer status.
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Litigation Partner Steven Gordon published an article for Law360 on the topic of ending the “open mind” standard for rulemaking. For years, the D.C. Circuit put in place the open-mindedness standard which stated, “[d]ecisionmakers violate the Due Process Clause and must be disqualified when they act with an ‘unalterably closed mind’ and are ‘unwilling or unable’ to rationally consider arguments.”
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April 3, 2019
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On April 2, 2019, the Federal Food and Drug Administration (FDA) outlined new steps to advance review of potential regulatory pathways for cannabis-containing and cannabis-derived products. In a statement issued by Commissioner Scott Gottlieb, released in conjunction with a public hearing notice, FDA said it is aware of both Congress and the public's interest in cannabis and cannabis-derived products, and the Agency is actively considering the proper regulatory framework for the lawful marketing of these products.
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Israel Practice Co-Chair Meital Stavinsky wrote a brief overview on Israel’s increasing agriculture quality and productivity. In 2017 alone, Israel raised more money than China for agricultural-technological developments thanks to profitable sub-sectors, most recently medical cannabis.
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April 2, 2019
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The U.S. Court of Appeals for the Tenth Circuit issued its decision in Teets v. Great-West Life & Annuity Insurance Company on March 27, 2019, finding that Great-West, an investment fund manager, was not liable to a class of plan participants as either a functional ERISA fiduciary or a non-fiduciary party-in-interest to prohibited transactions.
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In a prior article following the U.S. Supreme Court's decision in New Prime Inc. v. Oliveira, we noted that there is likely to be future litigation concerning who qualifies as an "interstate" transportation worker for purposes of determining the applicability of the Federal Arbitration Act (FAA) to independent contractors. (See Holland & Knight's alert, "Supreme Court: Federal Arbitration Act Doesn't Apply to Transportation Independent Contractors," Jan. 18, 2019.)
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A recent jury verdict in New York illustrates the potential and significant liability that commercial landlords/owners can face if their tenants engage in certain types of illegal activity involving the sale of trademarked property.
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March 13, 2019
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When the 2018 Farm Bill was signed into law last December, there was a good deal of excitement about the legalization of industrial hemp production. However, as we have noted before (see Holland & Knight's alert, "The Road Ahead for Cannabis-Derived Goods," Jan. 28, 2019), a number of open questions would need to be resolved before growers could begin cultivating hemp, and the timeline was uncertain at best.
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The U.S. Supreme Court on Feb. 25, 2019, granted certiorari in a Fair Debt Collection Practices Act (FDCPA) case involving a legal issue that could dramatically expand the scope of FDCPA liability. The case, Rotkiske v. Klemm, will decide whether the "discovery rule" will apply to toll the one-year statute of limitation that on its face applies to FDCPA claims.
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March 11, 2019
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Partner Steven Gordon wrote an article for Law360 on the federal courts in California and Pennsylvania that granted preliminary injunctions to halt the implementation of two new Trump Administration regulations.
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February 12, 2019
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