COVID-19 Will Lead to New False Claims Cases

The COVID-19 virus is inspiring new private-public relationships that will lead to a new generation of whistleblower cases under the Federal False Claims Act.

Government is injecting billions of dollars into the private sector for medical devices and necessary healthcare equipment. The private sector is now supplying everything from tests to masks and ventilators. In the massive purchase of products and services there is not a corresponding gearing-up in oversight. Whistleblowers will be essential in documenting defective products, and false billing for services or products not supplied or rendered.

The fraud will not just be limited to medical products; state and federal governments are spending billions to build temporary medical facilities and there is no doubt that there will be fraud, waste and abuse in their construction.

To keep the economy from collapsing, the government has made grants and loans worth billions of dollars. Recipients of government funds must make truthful representations on their loan or grant applications and they must continue to meet the requirements of the loan or grant for an extended period of time. The conditions of receipt of government funds are as detailed as the requirement that a recipient remain neutral in a union organizing campaign; in other words, ripe for misuse.

The bottom line; COVID-19 has created a new role for whistleblowers.

On the Rule of Law: The Times They are a-Changing and So Should Trial Advocacy Training

By Reuben A. Guttman |

As a lawyer, I grew up in dusty warehouses, the repositories for massive document reviews. I tore through boxes, often disappointed to find reams of computer runs, no doubt the product of a twentieth-century printer that pecked out letters one at a time. I drafted my first complaint on an IBM Selectric II typewriter, hitting the whiteout key repeatedly with my index finger, often erasing entire sentences at a time. I walked that complaint to the federal courthouse in Pittsburgh, Pennsylvania, wrote out a check from my personal account, and received the file stamped copy. Back in the days of the “notice pleading,” my eleven-page masterpiece was a triumph. 

For young lawyers, this may seem like the practice of a different age. For veteran attorneys, it was yesteryear. In my lifetime, technological changes have rewritten the rules of litigation and trials. 

The days of the dusty warehouses are gone. Documents arriving on zip drives are uploaded to a platform enabling a lawyer to lay in bed at night and access millions of pages of potential evidence on a two-pound iPad or small iPhone. 

With iPhones, virtually every person, from every corner of the earth, can be videoed, photographed, or audio-recorded at a moment’s notice. Spontaneous comment, once pried loose through deposition testimony, is now recorded for posterity on Twitter feeds, Facebook newsfeeds, LinkedIn profiles, Instagram accounts, and emails. What should never have been can now be undone using a website called Wayback Machine that reveals original drafts of online information.

Of course, few people walk their complaint to the courthouse anymore for filing. That too is done electronically. Today, the only place one can find an IBM Selectric II is perhaps at a yard sale or in a Smithsonian Institution warehouse. The skilled typist, whose hands once danced on typewriter keyboards, are no longer necessary for big litigation. Lawyers can research, draft, edit, and file their pleadings directly from the confines of a tiny laptop computer, even while sipping coffee at the neighborhood coffeehouse.

The opportunities for young lawyers to hang a shingle and be a voice for the voiceless are almost infinite. The overhead of having a law library, a secretary, or a runner to file papers in court has vanished. Even where cases require more than one lawyer so that legal thought can be second-guessed, practice norms have changed. Today, smaller firms and solo practitioners join forces for a case or joint venture with other firms. Because individual lawyers can now represent those in need without the support of a big enterprise, training individual lawyers to put together and litigate cases is an even more empowering endeavor. Newly minted lawyers can no longer complain about employment prospects. A licensed law school graduate with the right training should be ready to represent clients. There is currently no dearth of those in need of representation. It is the job of law schools and legal educators to provide lawyers and would-be lawyers with practical skills.

Contemporary litigation is not just about new opportunities, it is also about how we investigate and try cases. Along with advances in technology, the United States Supreme Court has imposed procedural changes that front-load litigation, requiring lawyers to gather fact-specific evidence for the pleading stage. In the Iqbal and Twombly decisions, the Supreme Court eliminated the age-old notice pleading standard. After these opinions were issued, plaintiff lawyers feared lacking the necessary information to meet the new standards. Yet, information readily available on the Internet from LinkedIn, Facebook, Instagram, Twitter, and chat rooms continually provides data and information to would-be litigants before discovery even begins. Company policies, government standards, and the standards of well-known oversight entities like the Joint Commission of the Accreditation of Hospitals need not be accessed through a trip to the library and searching the stacks: they can be pulled up on an iPhone while watching a baseball game.

In his autobiography, My Life in Court, the great trial lawyer Louis Nizer talked about litigation as a game of probability. Witnesses are put on the stand and testify to an event or chain of events. While their testimony may be truthful, it may not be accurate. Memories are flawed and witnesses view events from a particular vantage point, often not incorporating a scene’s entirety.

One wonders if Nizer—who passed away in 1994—would view things differently today. iPhone videos, photographs, audio recordings, and emails memorializing real-time recollections eliminate jury guessing games and reduce the need for witnesses. Does counsel really need eyewitness testimony of a car accident also captured on an iPhone? In a theoretical sense, just as automation has taken workers off the production line, technological innovation has taken witnesses off the stand.

To keep up with the times, we need to adjust teaching methods. Trial advocacy programs often start by teaching students the art of direct and cross-examination, followed by openings and closings. Why not begin training by requiring that students try cases using only documents, videos, photographs, and audio recordings? This forces students to learn the evidentiary rules of relevance, hearsay, and authentication as well as the art of openings and closings. For their first mock trial, prohibit students from calling witnesses; make them try the case using non-testimonial evidence. Then have them retry the same case with witnesses. This approach is the legal equivalent of the basketball coach making players practice with their weak hand or the ice hockey coach having players scrimmage with their sticks turned upside down.

Forcing students to focus on exhibits also teaches them how to select, or better yet de-select—perhaps from a trove of electronic information—exhibits that nail the case. In an era of abundant information, the skill of exhibit de-selection is critical to avoid going down a rabbit hole and losing the decision maker.

Front-loaded litigation, caused by pleading rules changes, requires that students think about evidentiary rules during case development and investigation. Here are some rules to stress:

  • FRE 201 (Judicial Notice of Adjudicative Facts). So much available online information meets FRE 201 requirements. Challenge those in trial advocacy programs to look outside the case file for industry standards or other usable evidence. This not only teaches students about the rule, it encourages curiosity, creativity, and thinking outside the box.
  • FRE 801(d)(2) (An Opposing Party’s Statement). Simply teaching students about opposing party statements is not enough. In an age when opposing party statements are common, students must also learn this rule’s broad utility. Think about emails, PowerPoint presentations, LinkedIn, Facebook, and Tweets.
  • FRE 901 (Authenticating or Identifying Evidence) and FRE 902 (Evidence that is Self-Authenticating). Teach students that if evidence is one, relevant under 401; two, not excluded under 403; three, not hearsay under 801(d); or four, meets a hearsay exception under 803, then the 901 and 902 authentication rules are the gateway for presenting evidence without a witness in court. FRE 902(13) and (14) even contemplate the mechanisms to authenticate electronic data.
  • FRE 1006 (Summaries to Prove Content). In an age of more information than we know what to do with, consider FRE 1006 the “sleeper” of the Federal Rules of Evidence. It allows the presentation of data summaries to the court and/or the jury. Remember the movie The Rainmaker where the young lawyer, played by Tom Cruise, presents Great Insurance Company’s CEO with a foot-thick computer run of wrongfully denied claims? FRE 1006 permits summary usage in lieu of burdening the jury with a multitude of documents detailing the same thing. FRE 1006 may also eliminate the need for expert testimony from economists and accountants who will do nothing more than summarize and add up numbers.

Most importantly, we as teachers need to keep up with changes, adjust our methods, and maintain student engagement.

Reuben Guttman is a founding partner of Guttman, Buschner & Brooks, PLLC, in Washington, D.C. Read more of his On the Rule of Law columns here.

The Whistleblowers in the White House

I practice law. My clients have been called sneaks and snitches. I just call them “whistleblowers.” If they sue a culprit who has defrauded the government under the False Claims Act against, I might also call them “relators.”[2]

I try to explain to people that the term whistleblower is quintessentially American. It is about challenging accepted but fundamentally wrong practices; indeed, ones carried out by established or respected people or institutions, including corporations and government. And though the term “whistleblower” was coined around the activities of Ralph Nader in the 1960s and 1970s, whistleblowers have been around since the birth of our nation.[3] One need only consider challenges to British Rule and claims of taxation without representation to understand the importance of whistleblowing in our founding.

We talk about the “progressive tradition,” but isn’t that tradition about second-guessing rules that are just not right – rules like slavery, “separate but equal,” and a way of life that denied, and continues to deny, equal rights for women and minorities? And aren’t the folks who stick their necks out to make these challenges just good old American whistleblowers? No doubt though, until their complaint is vetted and their cause pressed to completion, they will be called snitches, even if, at the end of the day, their epitaphs herald them as heroes.

This week we learned that we have whistleblowers in the White House, some of whom cooperated with reporter Bob Woodward, and one of whom penned an Op Ed for the New York Times.[4] True to form, feathers have been ruffled in some circles and our President has called the work of the Op Ed author “TREASON?”[5] Some of these outcries were predicable; yet the cries for help from these particular “whistleblowers” were a bit surprising.

While we have laws that protect whistleblowers and legal channels for them to air their grievances, every now and then these channels are simply not viable; or perhaps, those who might be in a position to hear a complaint won’t listen or are not inclined to take action.[6] Specifically, Congress has seemingly failed to conduct aggressive oversight on issues ranging from the competence of the President to the administration’s foreign policy initiatives.[7]

Maybe this is what the whistleblowers in the White House understand; it is probably why they took their concerns to the only viable outlet: the American Press. After all, was the Republican legislature going to take up their cause?[8]

And like the wide receiver always in the clear to take a pass, the Free Press – another quintessentially American phenomenon – exists as the outlet for whistleblower when all else fails. No doubt, choosing that route comes with fewer statutory protections, but to be clear, whistleblowers working with the press have driven change for the better.[9]

I am a bit curious about these White House whistleblowers —particularly, the individual whose words appeared in the New York Times. I wonder about the phrase in the Op Ed hinting at the virtues of an agenda that specifically favors deregulation and perhaps even the appointment of judges deferential to the well-heeled and less receptive to those without a voice; maybe even judges who are less open to receiving a complaint challenging the status quo from say, for example, a whistleblower?

I wonder whether these whistleblowers in the White House have truly learned about what it feels to be the little guy taking on the system, always in search of a more powerful partner who will make the grievance heard. And also, I wonder when they leave the White House and go back to Corporate America whether they will be the ones calling my clients snitches.


[1] Reuben Guttman practices law with Guttman, Buschner & Brooks, PLLC, and is a Senior Fellow and Adjunct Professor at Emory Law School. He is a Board Member of the American Constitution Society.

[2] See 31 U.S.C. §§ 3729-3731 (2018). Specifically, 31 U.S.C. § 3730(b) provides for “actions by private citizens” in the name of the government. Private citizens who bring these actions are known as “relators” and the caption on the complaint is styled, for example, United States ex rel Smith v. Jones Corp. The provisions of the False Claims Act that allow for private rights of action are known as the “Qui Tam” provisions. See, e.g.,31 U.S.C. § 3730(c).

[3] See William Safire, On Language; Blowing my Whistle, N.Y. Times Magazine (1983),

[4] See, e.g., I am Part of the Resistance Inside the Trump Administration, N.Y. Times (Sept. 5, 2018),; Renae Reints, Bob Woodward’s Latest Book Reveals New Levels of Chaos in Donald Trump’s White House, Fortune(Sept. 4, 2018),

[5] See Donald J. Trump (@realDonaldJTrump), Twitter (Sept. 5, 2018, 3:15 P.M.), (responding to the anonymous op ed in the New York Times).

[6] See infra, note 8. Historic examples of when government insiders have used the press because no viable internal recourse existed include Mark Felt’s (“Deep Throat”) cooperation with Bob Woodward and Carl Bernstein of the Washington Postand Daniel Ellsberg’s leaking of the Pentagon Papers. See The Most Dangerous Man in America, PBS, (last visited Sept. 13, 2018); The Watergate Story, Wash. Post, (last visited Sept. 13, 2018).

[7] See Kris Kolesnik, GOP Destroyed Oversight – Dems Obligated to Clean up Mess if Elected, The Hill (Sept. 11, 2018, 11:30 A.M.),

[8] For example, any one of a number of Congressional oversight committees – if inclined – has the ability to subpoena documents and call witnesses. See generally Todd Garvey, Cong. Research Serv., Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017), In combination with the press, these committees have immense power of persuasion. One can only harken back to the Watergate Committees to appreciate this point. See Tevi Troy, Congressional Hearings Aren’t What They Used to Be. Here’s How to Make Them Better, Wash. Post (Oct. 21, 2015),

[9] The Occupational Safety and Health Administration allows for redress regarding retaliation provisions written into at least twenty separate federal statutes. See Occupational Safety and Health Admin., U.S. Dep’t of Labor, OSHA Fact Sheet (2013), But the protection is for individuals who engage in protected conduct. Reporting wrongdoing to a federal agency is clearly protected conduct. What is less clear is when an individual neglects to report an issue directly to an agency and goes to the press. For example, one need only study the matter of the Pentagon Papers where Daniel Ellsberg was charged under the Espionage Act for his leaking of documents to the Washington Postand the New York Times; the charges were later dismissed because of prosecutorial misconduct. See Judge William Byrne; Ended Trial over Pentagon Papers, Wash. Post (Jan. 15, 2006), Despite the legal perils of Mr. Ellsberg, we look back over four decades on his efforts and view his conduct as having a positive impact on the process of evaluating US involvement in the Vietnam War.

Corporate Compliance Programs: Pretext or Panacea?

Proponents of corporate compliance programs loudly sing their praises while detractors point to ceaseless prosecutions and a parade of civil suits—often resulting in multi-billion dollar verdicts or settlements—as evidence that they are ineffective. So, are corporate compliance programs a panacea or a pretext? The truth lies somewhere in between.

As a threshold issue, corporations are for-profit institutions. Indeed, most corporations have a mandate to maximize profit for shareholders. This can encourage senior management to operate in grey areas, and regulators may later deem their actions (and board oversight of such actions) to violate a wide array of laws. Second, formalistic compliance programs are not enough to ensure internal reporting of potential fraud and are not enough to inspire companies to take appropriate corrective actions. Instead, as set forth below, companies must take steps to ensure effective implementation of compliance programs and foster a culture of corporate compliance.

The countervailing factors that motivate officers and directors to engage in or acquiesce to fraudulent conduct or, alternatively, devise and implement an effective compliance program warrant in-depth treatment in a standalone piece. Here, I turn to answering the specific questions posed with these general principles in mind.

Question 1: Do corporate compliance programs actually suppress information from regulatory oversight?

Response: Yes, often appropriately. But meritorious—and sometimes non-meritorious—allegations of misconduct tend to get reported externally where internal responses are inadequate or the company has not created a culture of compliance and reporting.

Recent reports, compiled through surveys of hundreds of senior executives from a broad range of industries, indicate that roughly two-thirds of United States companies are affected by fraud. 1 Costs to companies, including reputational damage, can be substantial as can costs associated with remediation and investigation of fraudulent practices.

Internal reporting programs such as corporate compliance hotlines represent a company’s first line of defense against corporate fraud. Internal whistleblower hotlines are a key component of a company’s anti-fraud program: where such hotlines are implemented, tips are typically the most common method of detecting fraud. 2 Moreover, the Sarbanes-Oxley Act (“SOX”), international guidelines from the European Union, and the U.S. Federal Sentencing Guidelines have deemed hotline reporting programs a good and necessary business practice. At the same time, internal compliance hotlines serve to screen out frivolous and baseless claims.

In my experience counseling and defending large corporations on employment matters and corporate compliance, reports to company ombudsman, managers, or human resources and compliance personnel often lack merit or do not implicate fraud. Employees often file malicious or fictitious complaints against fellow employees or the organization to ward off pending termination or to seek revenge for perceived slights. But treating employees with respect, even in these situations, can dissuade employees from unwarranted external reports.

Unfortunately, despite strong incentives to self-report credible evidence of wrongdoing, companies may conceal such evidence. Like companies, whistleblowers have incentives under various statutory regimes to report internally. For example, under the SEC whistleblower program established by the Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010, a whistleblower’s participation in internal compliance systems will generally increase an award and interference with or bypass of those systems can decrease an award. 3A whistleblower who reports conduct to the SEC within 120 days of reporting internally will also receive credit for any information the company later self-reports to the SEC. 4

In our experience, external reporting typically follows internal reporting when an employee felt the company response was not adequate. As of 2014, 80% of company insiders who reported potential misconduct to the SEC first raised their concerns internally to compliance personnel or their supervisors. 5 Likewise, Guttman, Buschner & Brooks attorneys have represented countless whistleblowers bringing cases under the False Claims Act and have helped recover billions of dollars on behalf of federal and state governments. In our experience, these whistleblowers typically reported internally first and only sought representation after the company responded inadequately or dismissed concerns as “this is the way we do business.” Thus, while corporate compliance hotlines and related reporting mechanisms serve as the first line of defense against fraud, the False Claims Act, Dodd-Frank and other whistleblower protection statutes effectively incentive employees to report fraud externally when a company’s response has been ineffective or where a company has not created a culture where employees feel comfortable reporting misconduct internally.

Companies are most likely to dissuade external reporting by creating and implementing effective compliance programs as well as self-reporting credible allegations of misconduct. Such self-reporting may also result in cooperation credit. Indeed, on September 9, 2015, Deputy Attorney General Sally Yates issued a memo instructing the DOJ to seek individual accountability from individuals perpetrating wrongdoing in the course of fighting corporate fraud and misconduct. 6 The memo was sent to every United States Attorney, the Assistant Attorney General heading up each DOJ division, the Director of the Executive Office for United States Trustees, and the Director of the FBI.

Consistent with the Yates directives, we have seen renewed focus on individual accountability in the False Claims Act cases we have litigated alongside the government over the past year. This has manifested in the government’s decision to name individual executives as defendants in complaints in intervention, the structure of settlements, and a myriad of other ways.

In keeping with its renewed focus on individual liability, the Yates memo articulated several changes to DOJ policy regarding the definition of “cooperation credit” for corporations. These changes are applicable to criminal as well as civil enforcement matters. Corporations historically have received and continue to receive more favorable settlement terms when the government concludes they provided material cooperation with respect to a government investigation. But companies have struggled to understand what it means to “cooperate” in a post-Yates world.

In a September 27, 2016 speech, Principal Deputy Associate Attorney General Bill Baer provided some insight as to what such cooperation now entails, highlighting the importance of prompt and material assistance. 7 Merely responding to a subpoena or civil investigative demand (“CID”) will not qualify as cooperation. Rather, a company hoping to obtain cooperation credit is expected to provide specific information about any and all employees involved in wrongdoing that is unknown to DOJ and that materially assists in its investigations. Thus, while meritless claims not implicating fraud are properly vetted and disposed of through company screening without ever coming to the attention of government regulators and investigators, an effective compliance program will also develop mechanisms to affirmatively identify and provide material information to regulatory agencies investigating the company.

Question 2: Do corporate compliance programs create an environment where employees are led to believe that wrongdoing in the corporate environment is implausible because a compliance program exists?

Response: No. But implicit or explicit directives from management can lead to false beliefs that particular actions comport with the law.

A corporate compliance program should and generally does sensitize employees to the fact that wrongdoing isplausible. A strong compliance program often identifies the relevant laws applicable to an employees’ day-to-day activities and may include fact patterns the company has identified as violative of relevant laws. For example, compliance training for pharmaceutical sales representatives is likely to and should inform employees that promoting off-label uses of company drugs can be deemed to be a violation of the Federal Food, Drug, and Cosmetic Act and likewise expose the company to liability under the False Claims Act. 8

Having said that, we have represented relators in False Claims Act cases in which company management has been warned by its own third-party regulatory consultants that certain conduct and types of interactions with physicians is proscribed. These companies have nonetheless directed such conduct in business plans, training documents, and other written directives to sales representatives. Similarly, employee performance reviews may—in writing—encourage conduct that is deemed by the government to be unlawful. Managers may also encourage such conduct when accompanying employees on sales detailing visits.

Thus, the existence of written policies and a compliance program does not itself create an environment where employees believe wrongdoing is implausible. But written directives, communications, and training by management can cause employees to believe that particular conduct is appropriate and in conformity with stated company policies and cause them to ignore other signs or evidence that such conduct is—in fact—unlawful.

Question 3: From a practical viewpoint, what kind of corporate compliance programs work better than others?

Response: Corporate compliance programs that incorporate the principles of communication, responsiveness, and transparency

Above all, compliance programs should be transparent and comprehensible to employees (and management), and the goals of enforcement mechanisms should be clearly communicated. Measures also must be implemented to ensure prompt and efficient responses to allegations of corporate wrongdoing. How this manifests will vary from industry to industry and company to company. It largely depends on the service or product a company offers, specific rules and regulations that govern the company, the size and geographic breadth of a company, and a myriad of other factors.

In addition to general principles of communication, responsiveness, and transparency, certain key factors tend to underlie effective compliance programs:

1. Guidelines: companies should have explicit guidelines that instruct employees how to perform their jobs in a legal and ethical manner, including training programs, codes of conduct, and written performance standards.

2. Surveillance: companies should have official policies and procedures that detail the manner in which they will monitor employees and how (and to whom) employees can report wrongdoing.

3. Sticks and Carrots: companies should identify and implement sanctions for wrongdoing as well as rewards in the form of promotions and positive reviews for demonstrated competence and compliance with company guidelines. A program can be well-drafted on paper but useless in practice if a company does not punish misconduct or reward behavior it wishes to incentivize.

4. Leadership: it is not enough to have formal procedures in place to foster compliance. The “water cooler” conversation and conduct of top-level management are equally important. The “tone at the top” and informal communications as set by leadership behavior is critical, but it is equally critical for top management to monitor and instill the same behavioral norms in middle management.

5. Independence of compliance personnel. Local management are rarely trained as investigators, and may be part of the problem. Likewise, local human resources personnel may appear to employees to be aligned with management and unlikely to take employee concerns seriously, disincentivizing employees from raising concerns about potential misconduct. Accordingly, effective compliance programs often provide mechanisms for employees to report concerns to independent third parties (such as ombudsmen) specifically trained in addressing employee concerns. Depending on the nature of the complaint, legal personnel, compliance officers, or human resources personnel may need to become involved after the initial investigation has begun.

Corporate compliance programs play an important role in modern corporate governance. But they are only as good as management’s commitment to effective resolution of employee concerns and implementation of corrective action when credible misconduct has been identified. Companies have strong incentives to get it right.


Justin S. Brooks is a founding partner of Guttman, Buschner & Brooks PLLC. Mr. Brooks represents relators in qui tam litigation under the False Claims Act and other federal and state statutes and corporate clients in a wide variety of complex commercial and employment litigation. He also provides employment and compliance counseling to companies, represents institutional investors in shareholder derivative and corporate governance litigation, and represents employees in employment litigation of all types. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO), and various employment discrimination, labor and environmental statutes.Prior to founding the firm, Mr. Brooks worked at Kirkland & Ellis LLP, Morgan, Lewis & Bockius LLP, and Grant & Eisenhofer P.A. He also served as law clerk for a federal judge. He has authored numerous articles on class action litigation and other topics.

1. Kroll, 2013/2014 Global Fraud Report, Who’s Got Something to Hide? 12 (2013),

2. See, e.g., Ass’n of Certified Fraud Exam’rs, Report to the Nations on Occupational Fraud and Abuse, 2014 Global Fraud Study 19 (2014),

3. 17 C.F.R. § 240.21F-6(a)(4); 17 C.F.R. § 240.21F-6(b)(3).

4. 17 C.F.R. § 240.21F-4(b)(7).

5. U.S. Sec. & Exch. Comm’n, 2014 Annual Report to Congress on the Dodd-Frank Whistleblower Program 16 (2014),

6 .See Memorandum from the Office of the Deputy Attorney Gen. to the Assistant Attorney Gen., Antitrust Div., the Assistant Attorney Gen., Civil Div., the Assistant Attorney Gen., Criminal Div., the Assistant Attorney Gen., Envtl. and Nat. Res. Div., the Assistant Attorney Gen., Nat’l Sec. Div., the Assistant Attorney Gen., Tax Div., the Dir., Fed. Bureau of Investigation, the Dir., Exec. Office for U.S. Trs., & all U.S. Attorneys (Sept. 9, 2015)

7 .See Bill Baer, Principal Deputy Assoc. Attorney Gen., Remarks at Society of Corporate Compliance and Ethics Conference (Sept. 27, 2016)

8 .The type of conduct that qualifies as “promotion” and the degree to which certain activity may be protected by the First Amendment involve a nuanced assessment, is largely unsettled, and varies from jurisdiction to jurisdiction. Detailed discussion is beyond the scope of this article.

The Impact of Justice Scalia

Saturday 13 February, 2016 was a biting cold day in the nation’s capital that seemed like it would go down in history only for its frigid temperature. By mid-afternoon, news flashed across TV and computer screens reporting the passing of Antonin Scalia, an Associate Justice of the Supreme Court.

With three branches of government, including 535 voting members of Congress, hundreds of federal judges and countless members of the Executive Branch, it is a rare occasion when the passing of a single individual can change the course of American governance. The death of Justice Scalia was one of those occasions. In a court split sharply, five votes to four, along ideological lines, Justice Scalia was not just a part of the conservative majority; he was an outspoken leader. His ‘voice’ was heard in sometimes caustic dissents, in aggressive questioning during oral arguments when he seemingly took the role of advocate, and through his writings and interviews.

He supported efforts to restrict the court’s decision in Roe v Wade, protecting a women’s ‘right to choose’; he rejected constitutional protection of same sex marriage; he voted with the majority in Bush v Gore, effectively deciding the presidency in favour of George Bush; he voted to strike down voting rights laws and he wrote the majority opinion in District of Columbia v Heller, striking down a law banning hand guns while protecting, under the Second Amendment, the right to own firearms. He was an ‘originalist,’ meaning he said the Constitution should be interpreted from only the words written by the ‘Founding Fathers.’ This logic led him to question the court’s intervention that resulted in the de-segregation of the nation’s public schools through the 1954 decision in Brown v Board of Education. Justice Scalia’s ‘originalist’ view also meant he disregarded the contemporary context (such as the wave of shootings in public schools or the attempted assassination of President Reagan, who had appointed him) that caused legislators to press for laws banning guns. At a time when the massive wealth of corporations and a few individuals has been channelled to influence federal elections, Justice Scalia sided with the majority in Citizens United v FEC, striking down provisions of Bi-partisan Campaign Reform legislation regulating the expenditures of corporations and unions in support of political candidates.

As a part of the court’s majority, he was a key vote in procedural changes that have had a sweeping impact on American jurisprudence. Court decisions re-defining pleading standards, restricting class actions and compelling arbitration have fundamentally altered the ability of consumers, and those impacted by pervasive workplace discrimination, to bring cases and do so in an open court of law.

My colleagues across the US have, of course, spent the weekend contemplating the tenure of Justice Scalia and the impact of his passing. Nancy Gertner, a former federal judge in Boston and currently a professor at Harvard Law School, sent me the following thought after writing her own insightful piece on Justice Scalia in The Boston Globe: ‘He was at once principled, trying to see everything through the lens of originalism, and at the same time, rigid, unwilling to admit that his constitutional interpretation was distorted by his own conservative calculus.’

Robert Ahdieh, vice dean and K.H. Gyr professor of private international law at Emory University School of Law in Atlanta, noted: ‘There have been few, if any, more forceful writers among justices of the Supreme Court than Justice Scalia. Combined with his sharp intellect and his deep sense of conviction, and his service on the court will long be remembered.’

Jon Karmel, a Chicago based attorney who is one of the nation’s preeminent union-side labour lawyers, drew specific attention to the impact of the Justice’s passing on labour unions in the US: ‘Public sector unions in the United States, which enjoy a membership rate nearly five times that of private sector unions, were sure to suffer a death blow by the Supreme Court. Until yesterday.

‘In Harris v Quinn, a seemingly small case out of Illinois, the Supreme Court last year held in a decision of five votes to four that a discrete group of public employees, non-union home healthcare workers, could not be charged fair share fees because they were not ‘full-fledged’ public employees. That narrow holding was used as an invitation by the conservative majority to overrule a 1977 decision, Abood v Detroit Board of Education  a precedent that is vital to the very concept of public employee unionism. In paragraph after paragraph, page after page, the main Harris opinion written by Justice Alito sought to undermine the legitimacy of Abood. 

‘The vehicle for destroying Abood is Friedrichs v California Teachers Association, a ginned up case that rocketed out of the Ninth Circuit on the plaintiff’s consent that judgement was appropriate against her based on Abood. Oral arguments were heard last month and a decision in favour of Ms Friedrichs by five votes to four was expected in June. No more. Labour unions and working people dodged a nuclear bomb. Friedrichs would have bankrupted public sector unions, as Scott Walker did in Wisconsin, and political money spent in favour of workers and their issues would have dried up. That is the point of Right to Work and other dues attacks on unions. Until money is taken out of politics, and maybe a new Supreme Court will do just that, the political playing field cannot be one sided.’

President Obama has committed to nominating a replacement for Justice Scalia. Republican Senate Majority Leader Mitch McConnell has threatened to block the Senate confirmation process until the next president has been sworn in. The Majority Leader’s threat is perhaps the litmus test for the significance of what happened this past Saturday.

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