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U.S. Chamber Sues EPA and Army Corps Over Water Regulatory Overreach
Chamber Litigation Blog
December 14, 2022
Jennifer B. Dickey, Deputy Chief Counsel
We are seeing a resurgence of demands for “injunctive” relief under Rule 23(b)(2) class actions that can only be described as astonishing. Some would require companies to undertake actions that would cost billions of dollars to complete; others are so ill-defined that it is hard to know what would even constitute compliance. In a recent blog post, I flagged an important question for businesses seeking to counteract this surge: what limits, if any, are there on the injunctive remedies that may be available for classes certified under Rule 23(b)(2)? That provision allows certification of a class when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” And this post provides the beginnings of an answer to that question.
October 27, 2022
Jeffrey P. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top FCA developments include: the Supreme Court’s denial of three petitions for certiorari asking the Court to decide how Fed. R. Civ. P. 9(b) applies to qui tam cases; a Second Circuit decision affirming the dismissal of a qui tam complaint for failure to plead materiality; and the Chamber’s filing of a coalition amicus curiae brief in a Supreme Court case addressing the standard for granting government motions to dismiss qui tam actions.
NOTE: This will be the last entry in our biweekly False Claims Act Developments blog. Moving forward, King & Spalding LLP will prepare in-depth discussions of particularly significant FCA developments on an ad hoc basis.
October 13, 2022
Jeffrey S. Bucholtz, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: two federal district court decisions enforcing the Eleventh Circuit’s interpretation of Fed. R. Civ. P. 9(b) in FCA actions; and a federal district court decision denying a Medicare Advantage insurer’s motion to dismiss, on materiality grounds, an FCA action brought by the United States.
September 29, 2022
Jeffrey S. Bucholtz, Amy Bentsen Boring, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a D.C. Circuit decision holding that the government cannot recover more than its claimed damages in an FCA suit against multiple defendants; a Tenth Circuit decision affirming the dismissal of a qui tam action; a decision from the en banc Fourth Circuit deadlocking over how to interpret the FCA’s scienter requirement; and the government’s creation of “strike force” teams to investigate and prosecute COVID-19 fraud.
September 21, 2022
Jennifer B. Dickey, Associate Chief Counsel
The massive damages class action—grouping thousands of individual claims for damages together in the name of a common question—is ubiquitous in American law today. But it wasn’t always that way. Just 55 years ago, it was an “adventuresome” innovation of the Advisory Committee on the Federal Rules of Civil Procedure, approved by the Supreme Court. Yet despite skepticism of many judicial innovations of the 1960s, and much debate at the margins of Rule 23(b)(3), we’ve seen few questions that strike at its core. Before getting aboard the damages class action train, though, it is worth considering where it is going and who is driving it. This post attempts to do just that, albeit in an abbreviated fashion, and ultimately concludes that closer scrutiny should be given to the authority of courts to award damages to unnamed class members under Rule 23(b)(3).
September 15, 2022
Ethan P. Davis, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: an Eleventh Circuit decision affirming a grant of summary judgment for the defendants in an FCA retaliation suit; the Solicitor General’s filing of an amicus brief, at the invitation of the Supreme Court, recommending that certiorari be denied in a case involving FCA pleading requirements; and two government settlements of FCA actions related to country-of-origin statutes.
September 7, 2022
On the latest episode of the Institute for Legal Reform’s Cause for Action Podcast, our own Jenn Dickey speaks with Archis Parasharami at Mayer Brown LLP about the U.S. Supreme Court’s important class-action ruling in TransUnion LLC v. Ramirez and its aftermath.
September 1, 2022
Ethan P. Davis, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a Ninth Circuit decision holding that patent prosecutions are “federal hearings” for purposes of the FCA’s public-disclosure bar; the Supreme Court’s request for the Solicitor General’s views on a petition for certiorari addressing the FCA’s scienter requirement; and a federal district court decision dismissing a qui tam lawsuit.
August 18, 2022
Ethan P. Davis, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a Ninth Circuit decision addressing the FCA’s materiality and scienter requirements; a federal district court decision interpreting the “good cause” standard for allowing the government to belatedly intervene in qui tam actions; and a new petition for certiorari asking the Supreme Court to decide the standard for analyzing scienter under the FCA.
August 4, 2022
Jeffrey S. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: Second and Eighth Circuit decisions interpreting the Anti-Kickback Statute (AKS) and the False Claims Act; Fourth and Seventh Circuit decisions affirming the dismissals of qui tam lawsuits under Fed. R. Civ. P. 9(b); and a notable settlement of a healthcare-related qui tam action.
July 21, 2022
Ethan P. Davis, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a joint announcement by the Department of Health and Human Services (HHS) and the Department of Justice (DOJ) touting the federal government’s recovery of more than $5.0 billion in healthcare fraud judgments and settlements in fiscal year 2021; a federal court decision denying a motion to dismiss a qui tam action; and three recent government settlements of FCA claims.
July 20, 2022
The U.S. Chamber of Commerce submitted comments to the Administrative Conference of the United States regarding the need for transparency and accountability from administrative agencies as they regulate the public. The letter explains:
"Guidance documents have been controversial. What should not be controversial is that to provide guidance to regulated entities, they must be available to regulated entities. Moreover, to the extent that guidance documents go beyond mere guidance and effectively impose obligations or liabilities, any sense of fairness or due process requires that they be accessible to regulated entities. . .
July 7, 2022
Jeffrey S. Bucholtz, Tamra Moore, Yelena Kotlarsky, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a published Fourth Circuit decision affirming dismissal of an FCA suit on Rule 9(b) and materiality grounds; a district court decision dismissing several relators from an FCA suit based on the public disclosure bar, the first-to-file bar, and Fed. R. Civ. P. 10(b), which requires clarity in complaints; and three government settlements of FCA claims.
June 23, 2022
Ethan P. Davis, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a grant of certiorari by the Supreme Court in a case concerning the scope of the government’s authority to dismiss FCA suits; a federal district court decision denying a qui tam relator’s request for a share of the government’s recovery in separate criminal proceedings; and recent government enforcement actions related to allegations of healthcare fraud.
June 9, 2022
Jeffrey S. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a federal district court decision holding that a Puerto Rico government agency cannot be sued under the FCA; a Fourth Circuit decision affirming summary judgment in favor of an FCA defendant on scienter grounds; and two government settlements of FCA claims.
May 26, 2022
Ethan P. Davis, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: Sixth and D.C. Circuit decisions reversing dismissals of two qui tam actions; a grant of rehearing en banc in the Fourth Circuit’s decision applying the Safeco scienter test to FCA claims; and the Solicitor General’s filing of an amicus brief recommending that certiorari be denied in a case presenting a question about FCA pleading requirements.
May 23, 2022
Jennifer Dickey was recently a guest on the Federalist Society’s SCOTUScast Podcast, providing post-decision analysis of the Supreme Court’s decision in Badgerow v. Walters. The case concerned the federal district courts’ jurisdiction to consider motions to confirm or vacate arbitral awards; the Supreme Court unfortunately reached an 8-1 decision limiting such jurisdiction. For more from Jenn on the case, listen here.
May 12, 2022
Jeffrey S. Bucholtz, Tamra Moore, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a settlement in a qui tam action based on alleged violations of cybersecurity regulations; a federal district court decision taking sides in a circuit split over the FCA’s first-to-file bar; and two federal district court decisions dismissing qui tam actions under Fed. R. Civ. P. 9(b).
May 2, 2022
Last week, the Fourth Circuit unanimously upheld a 2020 West Virginia law prohibiting trial lawyers from using misleading tactics, like falsely labeling their ads as “medical alerts” or using the word “recall” when no recall had been issued, to scare consumers into signing up for lawsuits. Trial lawyers sued in federal court to block the law, which they claimed violates the First Amendment.
April 28, 2022
Ethan P. Davis, Jamie Allyson Lang, Matthew V.H. Noller, King & Spalding LLP
This week’s top False Claims Act (FCA) developments include: a federal decision addressing a question of first impression related to Fed. R. Civ. P. 9(b), two recent government settlements of FCA claims, and a state court decision denying a motion to dismiss a claim under New York’s FCA.