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Naomi Bates

Recent Developments in the “Change in the Law” Reason for Compassionate Release

Over the last several years, thousands of incarcerated individuals have filed motions for compassionate release. As part of the submission process, individuals must outline the “extraordinary and compelling” reasons that warrant… more

Administrative Law Judge (ALJ), Appeals, Chevron Deference, Criminal Prosecution, Judicial Authority

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Leila Bijan

What to Expect in Consumer Protection in the New Administration

At the 2025 American Bar Association (“ABA”) White Collar Crime Institute in Miami, industry veterans forecasted the new Trump Administration’s white collar objectives by examining trends during the first Trump presidency. In… more

Cryptocurrency, Department of Justice (DOJ), Enforcement Actions, False Claims Act (FCA), Food and Drug Administration (FDA)

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Trillium Chang

At the First Oral Argument Post-Inauguration, Supreme Court Will Hear Arguments About the Contours of Forum Shopping in E-Cigarette Case

On January 21, 2025, the morning after the presidential inauguration, the U.S. Supreme Court will hear oral arguments in FDA v. R.J. Reynolds Vapor Company, an e-cigarette case where the Court will decide whether tobacco… more

E-Cigarettes, Food and Drug Administration (FDA), Forum Shopping, Marketing, Oral Argument

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Aaron Chou

Under “Damocles’ Sword”: Considering Removal Protections and the Take Care Clause in Light of SEC v. Jarkesy

The Constitution requires judicial independence in Article III. As Hamilton observed in “Federalist 78”: “The standard of good behavior for the continuance in office of the judicial magistracy . . . . is the best expedient which… more

Administrative Law Judge (ALJ), Administrative Proceedings, Article III, Executive Branch, Take Care Clause

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John Connolly

New Question for Expert Witness: Who Drafted This Report, You Or Your Machine?

A federal judge in Minnesota recently granted a motion to exclude an expert declaration explaining the dangers of AI deepfakes because the declaration itself contained AI-hallucinated citations. The case was a First Amendment… more

Artificial Intelligence, Disclosure Requirements, Discovery, Ethics, Evidence

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Nicholas DiCarlo

Whither Insurance Coverage for Preventive Health Services? District Court Decision Striking Down Affordable Care Act’s Preventive Care Coverage Requirements Temporarily Stayed by the Fifth Circuit

On May 15, 2023, the Fifth Circuit temporarily stayed a district-court ruling that struck down a key part of the Affordable Care Act (ACA). As a result of the stay, the ACA’s health insurance coverage requirements for preventive… more

ACIP, Affordable Care Act, Appeals, Appointments Clause, Department of Health and Human Services (HHS)

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Mark Feaster

The False Claims Act Could Become the New “It” Statute in an Uncertain Enforcement Landscape

Uncertainty was a prominent theme at last week’s ABA White Collar Crime Institute. The Trump administration has issued a series of directives that seem to shift and narrow the scope of (if not entirely abandon) a host of… more

CFTC, Cybersecurity, Department of Government Efficiency (DOGE), Department of Justice (DOJ), Emerging Technologies

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Adam Fotiades

SEC Adopts New Rules for Private Funds: What Advisers and Investors Need to Know

On August 23, 2023, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) finalized new rules and amendments under the Investment Advisers Act of 1940 (“Advisers Act”) to enhance the regulation of private fund… more

Audits, Broker-Dealer, Investment Adviser, Investment Advisers Act of 1940, New Rules

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Andrew Goldfarb

Adding China-Specific Restrictions to the FCPA? The Implications of Sen. Rubio’s Proposal

A recently re-introduced bill by Senator Marco Rubio (R-FL) would seek to expand the reach of the Foreign Corrupt Practices Act (“FCPA”) over corporations operating in China… more

China, Corporate Governance, Corruption, Enforcement Actions, Foreign Corrupt Practices Act (FCPA)

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Martin Himeles, Jr.

Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights

In 2013, a divided Supreme Court held in Shelby County v. Holder that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional, ending its preclearance requirement in states with a history of discriminatory voting… more

Constitutional Safeguards, Discrimination, Preclearance, SCOTUS, Shelby v Holder

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Alyssa Howard

Social Media and State Action: The Supreme Court Considers When Government Officials Block Commenters “Under Color of” State Law

When public officials block commenters from their social media pages, are they acting “under color of” state law for purposes of 42 U.S.C. § 1983? Yesterday, October 31, 2023, the Supreme Court heard oral arguments in two cases,… more

Amicus Briefs, First Amendment, O’Connor-Ratcliff v Garnier, Oral Argument, Social Media

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J. Benjamin Jernigan

More on the Meaning of Corruption: Clues and Opportunities in Snyder v. United States

Previous posts have discussed the substantial uncertainty around the meaning of “corruptly,” a mens rea term used across a variety of federal criminal statutes in the areas of public corruption, financial regulation, and… more

Bribery, Corruption, Department of Justice (DOJ), Public Officials, SCOTUS

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Antoinette Pick-Jones

General Counsels Beware: Assume That Anything Can Go Viral in the #MeToo Era

In March 2023, at the American Bar Association’s White Collar Crime Institute in Miami, Gary S. Lincenberg moderated a panel of general counsels. The panel covered a range of different issues; this post focuses on the discussion… more

American Bar Association (ABA), Attorney-Client Privilege, Confidential Information, Corporate Misconduct, Internal Investigations

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Jason Knott

What Is Illegal DEI? Employers and Workers Are Still Looking for Answers

Five years ago, companies were eager to adopt diversity, equity, and inclusion (DEI) programs. Now, the pendulum has swung in the other direction. DEI programs are under attack, and employers are trying to figure out what kinds… more

Anti-Discrimination Policies, Diversity and Inclusion Standards (D&I), Employer Liability Issues, Employment Discrimination, Employment Litigation

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Sara Alpert Lawson

For Whom the Bell Tolls: Does Wisconsin Bell Indicate Waning Support for Invalidating the FCA’s Qui Tam Provisions?

In the summer of 2023, Justice Thomas suggested in a dissenting opinion in U.S. ex rel. Polansky v. Executive Health Resources that Article II of the Constitution might not permit a qui tam relator to sue in the name of the… more

Appeals, Article II, Constitutional Challenges, Department of Justice (DOJ), False Claims Act (FCA)

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Christopher MacColl

Defamatory Bots and Section 230: Navigating Liability in the Age of Artificial Intelligence

The rise of artificial intelligence (“AI”) poses novel questions about whether internet technology companies will face liability for misinformation on their platforms. Internet companies have long been shielded from liability by… more

Artificial Intelligence, Bots, Communications Decency Act, Defamation, Liability

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Joshua Mathew

A Pivotal Moment in the Fight for Behavioral Health Equity: New Parity Regulations and More

The NAADAC 2024 Conference & Hill Day is an annual conference that brings together thousands of addiction counselors, educators, and other addiction-focused health care professionals from across the country. The conference aims… more

Employee Benefits, Employee Retirement Income Security Act (ERISA), Health Care Providers, Health Insurance, Healthcare

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Samantha Miller

UPDATE: The Imperative for Outlawing “Acquitted Conduct Sentencing”

For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends… more

Acquittals, Criminal Convictions, Double Jeopardy, Federal Sentencing Guidelines, Judges

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M Moore

Regulators Put AI in Their Crosshairs at the ABA National Institute on White Collar Crime

The American Bar Association’s National Institute on White Collar Crime has long focused on regulating, prosecuting, and defending evolving permutations of fraud, or allegedly fraudulent conduct. At the 39th annual event, held… more

American Bar Association (ABA), Artificial Intelligence, Department of Justice (DOJ), Enforcement Actions, Financial Crimes

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Kirk MacKinnon Morrow

As Priorities Change in Cross-border Criminal Investigations, Potential Targets Must Account for Possible Tolling of Limitations

As the new administration shifts some criminal enforcement priorities, particularly relating to activities abroad, potential targets of cross-border investigations are re-evaluating their strategies and exposure to enforcement… more

Biden Administration, Criminal Investigations, Criminal Prosecution, Enforcement Actions, Foreign Policy

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Ariella Muller

SEC Extends Comment Period on Proposed Rules Requiring Robust Climate-Related Disclosures

On May 9, the U.S. Securities and Exchange Commission (“SEC”) announced that it will extend the public comment period on its proposed rules on climate-related disclosures by public companies. The comment period was scheduled to… more

Climate Change, Corporate Governance, Disclosure Requirements, Environmental Social & Governance (ESG), Investment

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Nell Zora Peyser

Bad-Behaving Litigants Beware: Gamesmanship During Discovery Could Come at Great Cost

New York courts are trending towards a strict no-tolerance approach in disposing of cases for willful discovery violations. Under CPLR 3126(3), a party may seek to strike its opponent’s pleading for a willful failure to comply… more

Appeals, Appellate Courts, CPLR, Discovery, Discovery Disputes

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Bryan Reines

Sentences Based on Acquitted Conduct Will the Court Try Again?

On Thursday, May 11, 2023 the Supreme Court will consider several petitions, presenting questions about whether and how federal judges can consider criminal conduct of which the defendant was acquitted in imposing sentence on… more

Acquittals, Criminal Convictions, Federal Sentencing Guidelines, Judges, Sentencing

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David Reiser

To Err Is Human, But Artificial Intelligence Will Make Human Errors Worse

A recent blog post advocating using Artificial Intelligence (“AI”) to “automate” criminal appeals instead raises the concern that common flaws in contemporary judicial decision-making will only get worse if we cede legal writing… more

Appeals, Artificial Intelligence, Automated Decision Systems (ADS), Criminal Appeals, Criminal Convictions

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Anthony Ruiz

Working with Experts: Three Tips for Associates

Experts are a key part of any complex litigation. Being part of an expert team as an associate can mean taking charge of all the little (but still important) things: shuttling relevant documents to the expert, keeping track of… more

Discovery, Documentation, Expert Testimony, Expert Witness, Litigation Strategies

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Jade Chong-Smith

Understanding the Second Chance Amendment Act: A Guide for D.C. Practitioners on Expungement and Record-Sealing

The Second Chance Amendment Act, D.C.’s new expungement and record-sealing law, went into effect on March 1, 2025.1 This Act provides significant improvements, as D.C.’s prior regime was uniquely complex and restrictive. There… more

Criminal Convictions, Criminal Justice Reform, Employee Rights, Employment Discrimination, Expungement

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Sophia Stefanovic

Examining the United States Sentencing Commission’s Recent Voting History for Insight into its 2025 Term

At the American Bar Association’s White-Collar Crime Institute’s conference held in Miami, Florida on March 6-7, 2025, two panelists from the panel “Sentencing: Effective Mitigation in White-Collar Cases” differed on whether the… more

Compliance, Criminal Justice Reform, Criminal Liability, Criminal Prosecution, Drug Trafficking

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Bryan Thomson

Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights

In 2013, a divided Supreme Court held in Shelby County v. Holder that Section 4(b) of the Voting Rights Act of 1965 was unconstitutional, ending its preclearance requirement in states with a history of discriminatory voting… more

Constitutional Safeguards, Discrimination, Preclearance, SCOTUS, Shelby v Holder

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Ivano Ventresca

Adding China-Specific Restrictions to the FCPA? The Implications of Sen. Rubio’s Proposal

A recently re-introduced bill by Senator Marco Rubio (R-FL) would seek to expand the reach of the Foreign Corrupt Practices Act (“FCPA”) over corporations operating in China… more

China, Corporate Governance, Corruption, Enforcement Actions, Foreign Corrupt Practices Act (FCPA)

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Morris (Sandy) Weinberg Jr.

DOJ Unveils Enhanced White Collar Prosecution Focus at ABA National Institute on White Collar Crime

Recently, from March 2-4, almost 1,000 judges, federal prosecutors, federal public defenders, regulators, private practitioners, general counsel, and academics gathered in San Francisco for the 37th Annual American Bar… more

Coronavirus/COVID-19, Corruption, Criminal Investigations, Criminal Prosecution, Department of Justice (DOJ)

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