The Supreme Court, in an unanimous decision in Kokesh v. SEC published at the beginning of June, held that a five year statute of limitations applies to any claim for disgorgement. The decision could limit the amount of fines issued by the SEC and will be an important one to follow as it could ultimately impact the size of whistleblower rewards.
The Supreme Court will next term review a whistleblower retaliation lawsuit, Somers v. Digital Realty Trust, Inc., to determine whether the anti-retaliation protections of the Dodd-Frank Act protects employees who report misconduct internally. The Ninth Circuit, in a split decision, determined that the Dodd-Frank Act protected the employee from retaliation as a whistleblower in spite of the fact that he did not file a Form TCR with the U.S. Securities and Exchange Commission.
The Securities and Exchange Commission defended its ability to disgorge illegal profits from wrongdoers before the Supreme Court yesterday in Kokesh v. SEC. It was Justice Neil Gorsuch’s second day of oral arguments. An opinion is expected by the end of the term in July.
The Supreme Court upheld a verdict for two whistleblowers in its opinion today in State Farm v. U.S. ex rel. Rigsby despite a violation of the False Claims Act seal requirement by their former lawyer in the case. The Supreme Court agreed with the Fifth Circuit and District Court that the text of the False Claims Act does not require mandatory dismissal and the question of whether dismissal is appropriate is left to the District Court. Our previous discussion of the facts and issue in Rigsby is here.
The Supreme Court issued its decision in Salman v. United States today, the first insider trading case to reach the Justices in more than 20 years. The Supreme Court upheld the standard from its prior ruling, Dirks v. SEC, 463 U.S. 646 (1983) and concluded that a tipper personally benefits from a gift of confidential information to a trading relative or friend because it is as if the insider traded himself and then gifted the profits to the recipient. Our previous post on the case is here.
Fourth Circuit to Weigh-In on Statistical Sampling and the Government’s Veto Power in False Claims Act Cases.
The Fourth Circuit in U.S. ex rel. Michaels v. Agape Senior Community (Agape) has been asked to decide two important issues in False Claims Act lawsuits: (1) whether the Government can veto a settlement reached between the relator and defendant in a non-intervened case, and (2) whether statistical sampling can be used to prove damages. The case was certified for interlocutory appeal following the lower court’s June 2015 decision.
The Supreme Court on Thursday handed down a unanimous decision in U.S. ex rel. Escobar v. Universal Health Services, Inc. to resolve the circuit split over the validity of the implied certification theory of liability under the False Claims Act.
The Supreme Court will undertake review of another False Claims Act case after accepting the petition of State Farm to reconsider the 5th Circuit Court of Appeals decision in U.S. ex rel. Rigsby v. State Farm Fire and Casualty Co.
President Obama announced the nomination of D.C. Circuit Court of Appeals Chief Judge Merrick Garland to the Supreme Court at a press conference at 11 AM today. The pick will now be sent to the Senate, which the U.S. Constitution provides with the power to provide advice and consent to the President on the appointment.
Justice Antonin Scalia’s passing on Saturday has been the talk of the political and legal community over the past 48 hours. Justice Scalia joined the Supreme Court in 1986 after being appointed by President Ronald Reagan. Now, President Obama will have the opportunity to appoint a successor and alter the conservative majority on the Court. President Obama has already appointed two Justices to the Supreme Court, Justice Sonia Sotomayer and Justice Elena Kagan.