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With its decision in <i>Digital Realty v. Somers</i>, the U.S. Supreme Court dealt a blow to companies interested in learning of their own securities violations before the government gets the heads-up. The case's outcome means whistleblowers who might have reported violations internally will be incentivized to bypass their own companies' compliance mechanisms in favor of immediate reporting to the SEC.
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The details might not be quite as dramatic as they were in <i>Waymo v. Uber</i>, but lawyers expect trade secrets to continue to be a fertile source for litigation.
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<b><i>Part Two of a Three-Part Article</i></b><p>Notwithstanding the absence of an explicit gag order in the statute, the DOJ takes the position that, even if the relator properly files the case under seal at the outset, that relator can later “breach the seal,” and be subject to judicial sanction, if he or she discloses the existence of the <i>qui tam</i> to others.
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<b><i>Part One of a Two-Part Article</i></b><p>A company that finds itself the target of a federal fraud investigation often faces the fraught question of whether it may, or even must, disclose the existence of that investigation to third parties, such as its investors, shareholders, major creditors, or insurers. The question can be even more complicated if that investigation is being pursued under the False Claims Act and arises as the result of a sealed <i>qui tam</i> complaint.
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<b><i>SCOTUS Review of Dodd-Frank to Change the Landscape</i></b><p>In June, the Supreme Court granted <i>certiorari</i> in <i>Digital Realty Trust Inc. v. Somers</i>, to review a Ninth Circuit decision regarding SEC whistleblowing protections. The Court's ruling is highly anticipated, as it will clarify the landscape for whistleblower protections.
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The authors discuss several steps to take in order to avoid the pitfalls that could accompany lengthy exposure vis-à-vis state false claims actions.
Features
<b><i>Scotus Review of Dodd-Frank to Change the Landscape</i></b><p>On June 26, 2017, the Supreme Court granted <i>certiorari</i> in <i>Digital Realty Trust Inc. v. Somers</i>, to review a U.S. Court of Appeals for the Ninth Circuit decision regarding SEC whistleblowing protections. The Court's ruling is highly anticipated, as it will clarify the landscape for whistleblower protections.
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This article discusses what you can do to mitigate against the risk inherent in prolonged exposure. While a 50-state survey is beyond the scope of this article, the authors identify issues that should be on the forefront of your mind if faced with potential state false claims act liability.
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The Supreme Court, in <I>Universal Health Servs., Inc. v. United States ex rel. Escobar</I>, altered the landscape for FCA litigation. In this case, the Supreme Court instructed lower courts to scrutinize the materiality of the false statements to the government's decision to pay a claim; in doing so, the Court raised the bar for successful prosecution of <I>qui tam</I> claims.
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<b><I>What Can We Tell So Far?</I></b><p>How can companies plan for enforcement under the Trump administration? Here are five areas of compliance to consider.