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United States of America

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In brief On 13 April 2023, the Federal Trade Commission (FTC) issued a letter containing a Notice of Penalty Offenses Concerning Substantiation of Product Claims to approximately 670 advertisers, putting each company on notice that deceiving consumers with advertisements that make unsubstantiated product claims could subject the company to civil penalties of up to USD 50,120 per violation under 15 U.S.C. § 45(m)(1)(B). The FTC noted that, while the initial distribution of the Notice was specific to those making…

In brief On 14 April 2023, the United States Supreme Court issued its opinion in Axon Enterprise, Inc. v. Federal Trade Commission et al., and unanimously held that a litigant challenging the constitutionality of an agency administrative enforcement action need not await the outcome of that action before bringing their constitutionality challenge in federal district court. In depth The Court in Axon Enterprise, Inc. considered two separate matters based on administrative enforcement proceedings: one from the…

In brief After initially granting certiorari and hearing oral arguments in In re Grand Jury ─ a matter concerning the application of the attorney-client privilege to dual-purpose communications ─ the United States Supreme Court “dismissed as improvidently granted” the case. Tax practitioners had hoped that a ruling by the Supreme Court would resolve a circuit split regarding the extent to which such communications fall within the ambit of the privilege. Background As a general rule, a lawyer’s…

On January 17, 2023, the US Department of Justice (DOJ or the “Department”) issued a revised version of its Corporate Enforcement Policy (CEP). The CEP sets out the Department’s approach to resolving criminal cases with corporations. In particular, it addresses how the Department will credit companies which voluntarily disclose criminal conduct and cooperate with the Department’s investigation and resolution of the matter. The latest revisions to the CEP are an evolution of existing Department policy…

In brief On 30 August 2022, the DC Circuit ruled in United States v. Honeywell International, Inc. that the pro tanto rule applies to damages in cases under the False Claims Act (FCA). This means that, at least in the DC Circuit, damages in FCA cases will be subject to dollar-for-dollar reduction by other settlement offsets in cases involving multiple jointly and severally liable defendants. The ruling clarifies the settlement offset rule applied to FCA cases and…

With a growing trend toward taking more ESG measures, some companies are at risk of lawsuits from consumers involving plastic packaging. Here are some best practices boards should know about to mitigate the risk of litigation. In a recent trend, citizen advocates and environmental groups have been filing lawsuits asserting novel theories against major companies that use or rely on plastic, even if the companies do not produce plastic products or are not involved in…

Outside counsel are often called in to help with a bet-the-company lawsuit, only to find out that the company is unprepared for litigation—employees not trained on how to preserve attorney-client privilege or properly escalate a dispute, litigation hold notices not issued and company data not preserved, and the location of key documents uncertain. Preparing for the proverbial rainy day is critical, and corporate directors play an important role in ensuring their company is ready for…

In brief On 8 July 2022, the Department of Justice (DOJ) announced a settlement of cybersecurity fraud charges against Aerojet Rocketdyne Inc. (Aerojet) following an action under the False Claims Act (FCA). Aerojet agreed to pay USD 9 million to the US government to settle allegations that it misrepresented its compliance with cybersecurity requirements when entering into federal government contracts with NASA and the Department of Defense. The case started when Aerojet’s former employee, Brian Markus, filed…

Please join us for a new weekly video series, hosted by Baker McKenzie’s North America Government Enforcement partner, Jerome Tomas. This weekly briefing will cover hot topics and current enforcement actions related to white collar crime and criminal investigations in the US and abroad to arm you with the information you need to start your business week. As one of the largest global law firms, we will call upon our exceptionally deep and broad bench of…

When world economies face challenges, employment litigation claims of all types arise. In this Quick Chat video, our Labor and Employment lawyers discuss the range of trending employment-related claims and cases and share what employers can do to best position themselves to manage impending litigation. Click here to watch the video chat. Review our brochure, COVID-19 Employment Litigation on the Rise – How We Can Help, to read more about the current landscape, access useful resources and learn how our seasoned…