Defendants in False Claims Act cases still have a valid defense in light of the U.S. Supreme Court's recent ruling in U.S. ex rel. Schutte v. SuperValu "if there is objective ambiguity" in the law and there exists a "genuine subjective belief in the validity of the claim," Akin Gump lawyer Robert Salcido said in a blog post. FCA defendants also have a valid defense if they "acted with mere negligence or inadvertence," Salcido added, explaining the plaintiff must show that the defendant acted with a "substantial and unjustifiable risk."
The U.S. and Mexico have been consulting about U.S. complaints about favoritism to Mexican energy providers for 11 months, with no public movement toward a dispute settlement panel, and Karen Antebi, a former NAFTA negotiator, said she doesn't expect that to change in the next year.
The chairmen of the House Small Business Committee and the House Select Committee on China are asking for a detailed briefing by the end of June on DOJ's efforts to combat Chinese intellectual property theft.
The U.S. Supreme Court's recent decision in SEC v. Cochran could usher in the end of the agency's in-house court for most cases, including Foreign Corrupt Practices Act matters, according to Richard Cassin, founder of the FCPA blog. Should this happen, Cassin said in a June 12 post, it would be hard to imagine how the SEC could maintain its current level of enforcement activity.
The U.S. Supreme Court's decision in National Pork Producers Council v. Ross carries "profound implications for international trade," Steve Charnovitz, professor of international law at George Washington Law School, said in a blog post.
A U.S.-based multinational medical device company said it may have violated the Foreign Corrupt Practices Act. In a May 2 SEC filing, Stryker said it has hired outside counsel to investigate whether “certain business activities in a foreign country violated provisions” of the FCPA, adding that both the SEC and DOJ have contacted it. The company said it’s cooperating with both agencies. “At this time we are unable to predict the outcome of the investigation or the potential impact, if any, on our financial statements,” Stryker said.
DOJ will look to further crack down on Russian sanctions evasion by zeroing in on overseas investment advisers, hedge funds, law firms and private equity managers that have so far evaded scrutiny, Andrew Adams, head of DOJ's Task Force KleptoCapture, told Bloomberg. KleptoCapture is the interagency group charged with enforcing U.S. sanctions on Russia.
A case making its way through the Court of International Trade concerning CBP's interpretation of the drawback statute could result in a "win-win for the drawback community," law firm Neville Peterson said in a blog post. The case could see the court "employ a rule of lenity" when interpreting what is an "article description" for the purposes of setting substitution unused merchandise drawback eligibility, the firm claimed.
A recent Court of International Trade decision over how to value plywood imports claimed to be defective should inspire attorneys who draft international purchase agreements to double-check the language in those deals, Barnes Richardson customs lawyer Lawrence Friedman said in an April 1 blog post. Customs attorneys should ensure their agreements have language declaring "Merchandise shall be delivered free of defects, including latent defects, and suitable to its intended use," or some similar provision, Friedman said, noting that he lacks expertise in contract language.
DOJ last week offered insight on what may constitute “extraordinary” cooperation under its recently revised corporate enforcement polices, but said it doesn’t plan to issue a more concrete definition. The agency can “never articulate, in advance, what exactly will or will not satisfy these provisions,” Assistant Attorney General Kenneth Polite said, adding that each case is “different, and our prosecutors need flexibility and discretion to apply their judgment in the myriad scenarios that may be presented.”