Litigation Practice Group Podcast
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.
2015 National Lawyers Convention
- Shane B. Kelly, Associate, Wiley Rein LLP
- Stephen J. Obermeier,Partner, Wiley Rein LLP
The Eighth Annual Rosenkranz Debate was held on November 14, 2015, during The Federalist Society's 2015 National Lawyers Convention. RESOLVED: The Constitution is designed for a moral and religious people and it's wholly unsuited for the government of any other.
Eighth Annual Rosenkranz Debate
4:00 p.m. – 5:15 p.m.
- Prof. Robert P. George, McCormick Professor of Jurisprudence, Princeton University
- Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
- Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit
- Introduction: Mr. Eugene B. Meyer, President, The Federalsit Society
Mayflower Hotel 2015 National Lawyers Convention
The Supreme Court has instructed in clear terms that the duty of the Federal prosecutor in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Yet the news pages are filled with examples of Federal prosecutorial overreach. In its term just ended, the Supreme Court reversed six of seven criminal convictions that reached it, several all involving some form of over criminalization that can lead to prosecutorial overreach. And large categories of prosecutorial overreach never reach the Supreme Court, from dozens of convictions of "insider trading" by non-insiders (now found not to be a crime by the Second Circuit); to civil forfeitures of property of legitimate small businesses never charged with a crime; to multi-billion dollar settlements of the thinnest of charges with large banks, pharmaceutical companies, and individuals that cannot take any risk of a criminal conviction; to what one jurist has described as an “epidemic of Brady violations abroad in the land."
The panel will explore whether prosecutorial overreach has become epidemic. It will also explore potential remedies ranging from reducing the number of crimes, to sentencing reform, plea bargain reform, civil forfeiture reform, and more. Finally, it will ask who should take action to control prosecutorial overreach? Should it be the state bars? Should the courts be more aggressive? Or, is the task primarily one for Congress? If so, what are the most promising avenues of reform?
Professional Responsibility: Prosecutors Run Amok?
11:00 a.m. – 12:30 p.m.
- Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
- Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation
- Hon. George J. Terwilliger III, Partner, McGuireWoods LLP
- Ms. Darpana M. Sheth, Constitutional Litigator, Institute for Justice
- Moderator: Hon. Keith R. Blackwell, Associate Justice, Supreme Court of Georgia
- Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP
The Mayflower Hotel Litigation Practice Group Podcast
In life, we are often judged by the company we keep. But is that fair when it comes to judging a lawyer by the clients he represents? Does it matter whether the attorney is so successful that she has her choice of clients, an abundance of whom are not unsympathetic or controversial, and can thrive professionally even if not representing unsympathetic clients? Can a lawyer reasonably argue that our legal system requires representation, that even the least sympathetic among us deserve their day in court, which implicitly means solid legal representation?
2014 National Lawyers Convention
- Gene C. Schaerr, Principal, Schaerr Law Group
- Hon. Sarah L. Wilson, Partner, Covington & Burling LLP
Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address.
In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)?
Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client?
The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention.
- Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission
- Mr. Daniel Epstein, Executive Director, Cause of Action
- Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission
- Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP
- Ms. Julie Goldsmith Reiser, Partner, Cohen Milstein Sellers & Toll PLLC
- Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
- Introduction: Jack J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP; and Chairman, Professional Responsibility & Legal Education Practice Group