What Does Bill Cosby’s Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination?

The Supreme Court of Pennsylvania recently overturned Bill Cosby’s 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the court’s 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incrimination—including witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6). As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can . . . Read More

Alaska Native Corporations Now Eligible for CARES Act Funds Following Supreme Court Decision

On June 25, 2021, the Supreme Court ruled in a 6–3 decision , in Yellen v. Confederated Tribes of the Chehalis Reservation, that Alaska Native Corporations (ANCs) are “Indian tribes,” as defined by the Indian Self-Determination and Education Assistance Act (ISDA). In accordance with the ruling, ANCs are thus entitled to some of the $8 billion allocated to “Tribal governments” by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in the wake of the coronavirus pandemic (COVID-19). The decision . . . Read More

Protecting Your Company Against Revenue Clawbacks: Preference Actions (Part 3 of 3)

This is the final part of our three-part series on revenue clawbacks. The scenario: a customer or teaming partner goes bankrupt and then they (or a trustee) demand you return money they already paid you for services or goods duly rendered. In the first entry , we discussed the definition of preferences and the policy purpose of preference actions. In the second , we identified five specific actionable items to take to limit your exposure to them. In this finale to the series, . . . Read More

Restaurants are Prime Targets for FLSA Lawsuits: 6 Tips for Employers Relying on the Tip Credit

The COVID-19 pandemic has been particularly difficult for the food and beverage industry.  With stay-at-home orders, operational capacity restrictions, and indoor dining limitations imposed on restaurants and bars across most of the country throughout 2020 and into 2021, the impact has been significant.  The hospitality industry lost hundreds of billions of dollars in anticipated revenues; beloved local eateries closed their doors temporarily or permanently; and millions of restaurant workers lost their jobs or left the hospitality industry altogether.  Now, as . . . Read More

A Decision Right Up an Employee’s Alley: Recent Virginia Federal Court Opinion Weakens Protections for Companies Utilizing Consultants and Independent Contractors

Government contractors and commercial businesses alike frequently retain consultants and independent contractors to perform certain types of work, particularly in the construction, healthcare, and information technology industries. This is so because utilizing independent contractors, as opposed to employees, can offer some attractive benefits to companies. For instance, utilizing independent contractors may reduce company overhead, general and administrative, and fringe benefit expenses; it may allow for flexible work schedules, particularly on projects with indefinite schedules or workloads; and it may permit . . . Read More

Return to Work: Employer-Mandated COVID Vaccination Policies and Accommodating Employee Disabilities and Religious Beliefs

With over 50% of the adult population in the United States having received at least one dose of a vaccine to combat the novel coronavirus (COVID), many businesses and employers are looking forward to a “return to normal” and their employees coming back to the workplace. One common consideration is whether an employer should implement mandatory COVID vaccination requirements as part of their return-to-work policies. Employers must be mindful of ensuring that their return-to-work policies, including any vaccination mandates, comply . . . Read More

Do Corporations Have Fifth Amendment Rights Against Self-Incrimination? The Corporate Designee’s Rights in a FRCP 30(b)(6) Deposition

Anyone who has watched a courtroom television drama is aware of their Fifth Amendment privilege against self-incrimination. But “pleading the Fifth” is not something a witness can invoke blanketly to avoid answering questions, especially where a witness is testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6). In those circumstances, knowing your available options when preparing a corporate designee witness is key to managing any risks of potential self-incrimination. Rule 30(b)(6) allows . . . Read More

Protecting Your Company Against Revenue Clawbacks: Preference Actions (Part 2 of 3)

This is part two of our three-part series on revenue clawbacks. Once again, the scenario: a customer goes bankrupt, and then they (or a trustee) demand you return money you were already paid for services or goods duly rendered. In this three-part series, we discuss strategies for protecting your company against these revenue “clawbacks” and how to implement these strategies before and after a customer’s or teaming partner’s bankruptcy filing. In part one , we discussed the definition of preferences and the . . . Read More

Healthcare Blog Series: CMS and HHS-OIG Issue Final Rules Updating the Anti-Kickback Statute and Stark Law

***This is an update to the second installment of the blog series, which detailed proposed revisions to the Anti-Kickback Statute and the Stark Law.*** On November 20, 2020, over one year after releasing proposed changes to the Anti-Kickback Statute (AKS) and the Physician Self-Referral Law (Stark Law), the Department of Health and Human Services’ Office of the Inspector General (HHS-OIG) and the Centers for Medicare and Medicaid Services (CMS) issued two final rules, revising the AKS and Stark Law safe . . . Read More

DOJ Announces FY 2020 Fraud and FCA Recovery Statistics: What They Mean for 2021

Last week, the Department of Justice (DOJ) announced that it recovered more than $2.2 billion in settlements and judgments from civil cases involving fraud and the False Claims Act (FCA) in Fiscal Year (FY) 2020 (ending September 30, 2020). DOJ’s FY 2020 fraud and FCA recovery statistics report accompanied the announcement. With a global pandemic that often delayed proceedings, the $2.2 billion in recoveries was DOJ’s lowest haul since 2008. Although the announcement and report revealed a significant decline in recoveries . . . Read More