O’Melveny Adds Crypto/Cyber Expert from U.S. Attorney’s Office
Sid Mody served as digital currency crimes coordinator and national security cyber specialist for the U.S. Attorney's Office for the Northern District of Texas.
Fifth Circuit Invites Constitutional Challenges to SEC’s ‘No Admit, No Deny’ Policy
A handful of Fifth Circuit judges seem to have it out for the U.S. Securities and Exchange Commission and “the agency’s current activism.” Two judges issued a concurring opinion that clearly invites defendants being accused of financial fraud to challenge the SEC’s use of “no admit, no deny” settlement agreements. “If you want to settle, SEC’s policy says, ‘Hold your tongue, and don’t say anything truthful – ever' — or get bankrupted by having to continue litigating with the SEC,” Judge Edith Jones wrote. “A more effective prior restraint is hard to imagine.”
The Texas Lawbook has insight from several legal experts who say they understand Judge Jones’ concerns but say eliminating the “no admit, no deny” provisions in settlements would cause tremendous upheaval in the system and place defendants at an even bigger disadvantage in their negotiations with the federal agency.
Ruan v. United States: SCOTUS Potentially Limits CSA’s Application
In a decision favorable to pharmaceutical prescribers, the United States Supreme Court in Ruan v. United States held that the government must prove beyond a reasonable doubt that a defendant knowingly or intentionally violated the Controlled Substances Act. The decision firmly establishes a good faith defense, and good faith jury instruction when supported by sufficient evidence, for criminal defendants charged with CSA violations.
SEC in Constitutional Danger Zone Following Several Recent Decisions
The constitutional spotlight is shining on the U.S. Securities and Exchange Commission. In the last several weeks, the U.S. Supreme Court agreed to hear a case seeking broader federal jurisdiction for constitutional challenges, the U.S. Court of Appeals for the Fifth Circuit found multiple constitutional infirmities in SEC practice and procedures, and a petition for certiorari was filed seeking to end the SEC's longstanding "gag order" requirement for settlements. Three cases — Cochran, Jarkesy and Romeril — represent three unique challenges to SEC practices. Here are some takeaways on what to look for next.
Implications of Jarkesy v. SEC: Fifth Circuit Upholds Right to Jury Trial, Raises Red Flags about Administrative State
The federal Fifth Circuit's opinion vacating a Securities and Exchange Commission administrative law judge’s decision in a securities fraud case is the first time since 1935 that the court used Article I's nondelegation doctrine to invalidate congressional delegation to an agency and could drastically affect the use of in-house administrative judges. While the court did not directly attack agencies’ ability to legislate, the opinion’s broad sweeping language about separation of powers and accountability suggests that agency rulemaking authority could be ripe for challenge. Cases involving securities fraud, Medicare, disability benefits, immigration and more could sit on dockets for years waiting to be adjudicated. This article is the first in a series examining the federal appellate court's decision in Jarkesy.
Lessons from the Boeing 737 MAX Criminal Trial
When two Boeing 737 MAX jets crashed five months apart, Congress, the media and the U.S. Department of Justice looked for someone to blame. David Gerger represented the only person criminally charged in the scandal. He reflects on his client’s swift acquittal by the jury.
DBJ: Prison Sentences Handed Down for UDF Execs
Coming into the hearing, four UDF executives faced sentences of up to 27 years in federal prison, according to prosecutors.
Nationwide Permit 12 in the Crosshairs (Again), and Texas Energy and Infrastructure Projects Hang in the Balance
The Edison Electric Institute, which represents investor-owned electric companies, recently warned that environmentalists’ challenge to a Clean Water Act dredge-and-fill general permit for oil and gas pipelines is not just a threat to efficient permitting for those projects but could hinder the validity of similar permits for other sectors.
The court's holding in the underlying case challenging the nationwide permit has the potential to significantly impact energy sector projects in Texas.
DBJ: Prosecutors Get More Time to Tally Restitution in UDF Fraud Case
Federal prosecutors say that roughly 30,000 investors are victims of the UDF executives under the Crime Victims Rights Act. Sentencing is set for May 20.
Baker Botts Fights ‘Tampon Tax’ Imposed by Texas Comptroller
Lending pro bono assistance, Baker Botts is teeing up a constitutional challenge to the Texas comptroller’s decision that sales tax must be collected on feminine-hygiene products when the agency concludes Band-Aids and gauze – and even libido boosters for men – should not. This policy, argues the energy partner who is tackling the challenge, Meghan Dawson McElvy, “favors the male sex drive and organs over the management of female menstruation.”
Feds Are 11 for 11 in Guilty Pleas in $300M Medical-Lab Kickback Scheme
Less than three months after their indictment, 11 Texans, including two doctors, have pleaded guilty in a payoff scheme involving needless lab tests billed to Medicare and other federal programs by three Dallas-area labs.
Lessons from the DaVita Win
The antitrust matter was the first criminal case alleging an illegal conspiracy involving a “non-solicitation” or “no-poach” agreement. This article shows why it is an issue of serious importance to GCs around the state.