Fraud & Business Torts

Sheriff v. Gillie - Post-Decision SCOTUScast

SCOTUScast 6-1-16 featuring Jennifer Mascott
Jennifer L. Mascott June 01, 2016

On May 16, 2016, the Supreme Court decided Sheriff v. Gillie. This case involves litigation between debtors to Ohio institutions and special counsel who sought to collect money owed to the institutions. Two questions were before the Supreme Court: (1) Do special counsel appointed by Ohio’s Attorney General qualify as “state officers” exempt from the Fair Debt Collection Practices Act’s (FDCPA) governance? (2) Is special counsel’s use of the Attorney General’s letterhead a false or misleading representation proscribed by FDCPA §1692e? The U.S. Court of Appeals for the Sixth Circuit held that special counsel were independent contractors who could not claim an FDCPA exemption and remanded the case for trial on the deceptiveness issue.

By a vote of 8-0, the Supreme Court reversed the judgment of the Sixth Circuit and remanded the case. Writing for a unanimous Court, Justice Ginsburg explained that--even assuming for the sake of argument special counsel do not rank as “state officers”--their use of the Attorney General’s letterhead did not offend §1692e. Not fairly described as “false” or “misleading,” the use of the letterhead accurately conveyed that special counsel, in seeking to collect debts owed to the State, do so on behalf of, and as instructed by the Attorney General. 

To discuss the case, we have Jennifer L. Mascott, who is an Olin/Searle Fellow in Law at Georgetown University Law Center.

Governmental Power versus Free Speech? - Podcast

Practice Groups Podcast
John S. Baker, Jr., C. Boyden Gray, Scott Pruitt May 16, 2016

Several state attorneys general have banded together to investigate what ExxonMobil did and did not know about global warming over the past decades.  A subpoena issued by the attorney general of the U.S. Virgin Islands seeks Exxon records dating back to 1977, including communications with some 90 private organizations and dozens of private individuals.  Other subpoenas have been issued to private organizations.  Our panel of experts discussed the merits of the investigation, how widely it might range, and its implications.


  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
  • Hon. Scott Pruitt, Attorney General, State of Oklahoma

RJR Nabisco, Inc. v. The European Community - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Richard A. Samp
Richard A. Samp April 20, 2016

On March 21, 2016, the Supreme Court heard oral argument in RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage.

The U.S. Supreme Court granted RJR’s subsequent petition for writ of certiorari on the following question: whether, or to what extent, RICO applies extraterritorially.

To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

RICO's Reach: Arguments Heard in RJR Nabisco, Inc. v. The European Community - Podcast

Litigation Practice Groups Podcast
Richard A. Samp March 24, 2016

On Monday, March 21, the Court heard RJR Nabisco, Inc. v. The European Community. The case arose in the 2nd Circuit. The question presented is whether, or to what extent, the Racketeer Influenced and Corrupt Organizations (RICO) Act applies extraterritorially. The European Community, now the European Union, alleged that RJR participated in a scheme to launder illegal drug sale proceeds in Europe.

Mr. Richard Samp, Chief Counsel of the Washington Legal Foundation, attended oral arguments on behalf of the WLF, which filed an amicus brief in support of RJR.


  • Richard A. Samp, Chief Counsel, Washington Legal Foundation

How “False” Must a Claim be under the False Claims Act? - Podcast

Litigation Practice Group Podcast
Shane B. Kelly, Stephen J. Obermeier January 28, 2016

If you do business with the federal government, when does violating a statute, regulation, or contract provision become fraud? This is the question facing the U.S. Supreme Court in Universal Health Services v. United States ex rel. Escobar, which examines the scope of the False Claims Act (FCA). The FCA provides for treble damages and civil fines for anyone submitting false claims for payment to the federal government. Violations of the FCA must involve a “false or fraudulent claim” or “a false record or statement material to a false or fraudulent claim.” Traditionally, the falsity element of an FCA claim required a “factual falsehood” (e.g., submitting a claim for payment for 10 computers when only 5 were delivered) or an express false certification (e.g., certifying to a lack of organizational conflicts of interest when such conflicts exist). But does submitting a claim for payment, by itself, represent to the government that all applicable legal requirements were followed such that failing to comply with those requirements renders the claims “false”? Circuit Courts have split on this question, and now the Supreme Court will decide.

This case has significant implications for anyone doing business with the federal government. If the Court recognizes a so-called “implied certification” theory of liability, it could substantially increase contractors’ exposure to the FCA’s punishing statutory regime.


  • Shane B. Kelly, Associate, Wiley Rein LLP
  • Stephen J. Obermeier,Partner, Wiley Rein LLP