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The Food, Drug, and Cosmetic Act (FDCA) has historically allowed prosecutors to charge corporate employees with misdemeanors without having to prove personal participation or wrongful intent. But, as the use of the statute has become more frequent and penalties have gotten more severe, the constitutionality of such an application of the FDCA has come under heightened scrutiny. Until recently, the typical FDCA case has involved an executive who pleaded guilty to one or more misdemeanors in the face of Department of Justice (DOJ) allegations of felony misconduct. These negotiated resolutions did not raise the same due process concerns posed by cases today, where defendants are facing these charges at trial and challenging the constitutionality of their sentences. Until the Supreme Court clarifies the bounds of the FDCA, district courts will struggle with identifying the necessary elements of individual criminal liability.
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Decoding DOJ’s New ‘Justice AI’ Initiative
By James D. Gatta, Allan J. Medina and Ian Q. Rogers
The DOJ is likely to face many practical challenges and novel issues as it begins coding its own algorithm for AI-related enforcement. This article briefly examines three areas of AI-related enforcement where such practical challenges and novel issues may arise.
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
By Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
Supreme Court Set to Decide On Competing Interpretations of Federal Corruption Statute
By Elkan Abramowitz and Jonathan Sack
In this article, we describe the competing interpretations of Section 666 and comment on the implications of a Supreme Court decision in United States v. Snyder, where it will decide whether the law criminalizes “gratuities,” and not simply “bribes,” given to state and local officials.
The Role of the SEC In Cryptocurrency Regulation and Enforcement
By Jay Dubow, Joanna Cline and Milica Krnjaja
The SEC's cryptocurrency-related actions reached a new high in 2023, jumping more than 50% when compared to 2022. We expect the SEC’s enforcement efforts in this area to continue at a high pace in 2024, even though whether or not cryptocurrency should be classified as a security or something else remains uncertain.