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Government Enforcement Exposed - "The GEE"
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30 Jun 2016 What Happens in Europe, Stays in Europe? Applying RICO to Foreign Injury, Conduct

  Recently, the U.S. Supreme Court handed down its decision in RJR Nabisco, Inc. v. European Community, et. al., clarifying—in part—the extent to which injuries sustained outside the United States and racketeering acts committed abroad give rise to civil claims for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1964. The group most definitively affected as a result of the opinion is private RICO plaintiffs who have not suffered an injury inside the United States. For them, the decision forecloses the possibility of civil RICO recovery.   The case is also certain to be cited in forthcoming criminal RICO cases, since the Supreme Court analyzed the extraterritoriality of RICO’s substantive criminal conduct provisions using the same analysis as when it separately…

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28 Jun 2016 McDonnell Decision Indicates Supreme Court’s Desire to Limit Application of the Honest Services Fraud Statute

  On June 28, the Supreme Court issued its opinion in McDonnell v. United States, one of the most anticipated opinions of the October 2015 term for white collar practitioners. In the unanimous ruling in favor of former Virginia Gov. Bob McDonnell, the Court again limited application of the “honest services fraud” statute (18 U.S.C. § 1346), as applied through the federal bribery statute (18 U.S.C. § 201), making it harder to prosecute public officials on corruption charges. The decision holds that an “official act” sufficient for a bribery conviction requires more than “setting up a meeting, hosting an event, or calling an official.” At trial and on appeal, prosecutors had successfully argued that an “official act” included “nearly any activity by a public official.”…

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17 Jun 2016 Supreme Court Preserves Implied Certification Theory in Closely Watched False Claims Act Case

In the much-anticipated ruling on Universal Health Services Inc. v. United States ex rel. Escobar, the United States Supreme Court today held that False Claims Act liability can be predicated on an implied certification theory of liability.  (For the factual background and procedural history of the case, see our earlier blog post about the court’s grant of certiorari.) The court also clarified the materiality threshold that must be satisfied to pursue actionable claims under this theory, finding that materiality can be established with or without express language in the regulations that it is a condition of payment.   In upholding the theory of implied certification, the court addressed the situation under which a misleading omission could render a claim false or fraudulent, stating that when…

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