Articles

10.03.18

Slumming It With Facts on Appeal, Part 2—Going to the 909

"As we have seen, sometimes appellate courts do get their hands dirty with facts and will entertain a new fact for the first time on appeal. Judicial notice on appeal is one prosaic example. A more intriguing example is the use of Code of Civil Procedure Section 909."Read the ...


10.01.18

Are Allegations of Lack of Medical Necessity in False Claims Act Cases a Basis for Settlement or ...

Health care fraud and False Claims Act cases continue to generate a significant source of funds for the Federal Government. During Fiscal Year 2017, the Federal Government won or settled over $2.4 billion in health care fraud judgments and settlements, most of which went into the Medicare ...


09.27.18

New York, Oregon Actions Highlight State AGs’ Power to Police Dietary Supplements

State attorneys general (AGs) have the power to enforce state consumer protection laws, often referred to as “little FTC acts.” Patterned off Section 5 of the Federal Trade Commission (FTC) Act, these laws vary in some detail from state to state, but generally adhere to the same ...


09.26.18

Federalism and Takings Law Do Not Blend

"Don’t get me wrong, some of my best friends are Federalists. The problem that I have with the concept of federalism is the tendency of some of its fans to enlist it in analyzing regulatory takings cases. The way that happens is that they insist that intonation of the doctrine is ...


09.23.18

Through the Looking Glass of the 2018 Democratic Primaries

Let’s try to glean from the returns of last week’s primaries a better sense of where the Democratic Party’s electorate stands in New York State. Instead of a single lesson, these returns suggest lessons emerging as a swirl.


09.17.18

Insight: Even as the CCPA Remains a Moving Target, California’s New Law Portends a Surge of ...

Much ink has been spilled over this summer’s passage of the California Consumer Privacy Act (CCPA, or sometimes “CaCPA”), and for good reason: the CCPA bestows many complicated rights upon California consumers, to the chagrin of enterprises that are increasingly beleaguered by ...


09.07.18

Rush to End Drug Rebates May Be Bad for Patients, Payers, and Pharma

In health care circles, 21 words have rarely caused as much speculation as “Removal of Safe Harbor Protection for Rebates to Plans or PBMs Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection,” the title of proposed regulations currently under review at the ...


09.04.18

Did You Notice That This Fact Was Not in the Record on Appeal?

"Did you notice that this fact was not in the record on appeal? Lawyering requires two key ingredients, facts and law. And the world of litigation starkly delineates the realms where each predominates. The shorthand phrasing of this general rule is that trials focus on the facts whereas ...


09.01.18

The Endangered Species Act: The High Court, the Services, and Congress All in Play!

All three branches of the federal government—judicial, executive, and legislative—are actively considering major aspects of the federal Endangered Species Act (ESA or Act). Some decisions and resulting changes are certain; others are probably, based on history, unlikely to be enacted. ...


08.29.18

Interest? You Think We Owe You Interest?

"Some teachers in Washington thought the state's Retirement Systems Department was short-changing them. Or, as the U.S. Circuit Court of Appeals, Ninth Circuit put it, the teachers charged that interest had been 'skimmed' from their accounts and given to others. See Fowler v. ...