The National Law Forum

Electronic Medical Record Provider Pays $930,000 in First Civil Cyber-Fraud Initiative Settlement

For the first settlement as part of the Department of Justice’s Civil Cyber-Fraud Initiative, DOJ settled a case against medical services government contractor Comprehensive Health Services, LLC (CHS) for $930,000. This settlement resolves allegations brought forth in two qui tam lawsuits, where four whistleblowers filed suit on behalf of the government under the qui tam provision of the False Claims Act. Three of the whistleblowers received $15,000, in addition to attorneys’ fees, and one relator received $127,050 for reporting fraud.

“This settlement serves notice to federal contractors that they will be held accountable for conduct that puts private medical records and patient safety at risk,” said the United States Attorney for the Eastern District of New York.

CHS, as part of the medical services they provided to the U.S. government, was paid to implement a secure electronic medical record (EMR) system as part of contracts with the State Department and Air Force at various U.S. consulate and military locations in Iraq and Afghanistan. The EMR system housed personal health information and medical records for anyone who received medical treatment at the locations CHS served, including U.S. service members, diplomats, officials, and contractors. According to the allegations, CHS did not consistently store patients’ medical records on the secure EMR system and indeed left scans on a network drive which non-clinical staff could access.

As part of several contracts to which CHS was a party, CHS was supposed to provide medical supplies, including controlled substances subject to U.S. Food and Drug Administration (FDA) or European Medicines Agency (EMA) approval. According to the allegations, CHS “knowingly, recklessly, or with deliberate ignorance” submitted claims for payment for controlled substances that they obtained by means not sanctioned by these contracts. Not only did CHS lack a Drug Enforcement Agency license to export controlled substances, but CHS also obtained controlled substances by having their U.S.-based subsidiary request that a South African physician prescribe controlled substances, according to the allegations. The South African physician prescribed these controlled substances, absent FDA or EMA approval, and a shipping company from the same country imported the substances to Iraq.

Government contractors are supposed to adhere to the terms of their contracts in order to receive reimbursement from the U.S. government. This medical services provider ignored procurement guidelines to obtain controlled substances, undermining safety controls and misrepresenting their adherence to contract terms in providing medical services to U.S. military personnel. The DOJ’s Civil Cyber-Fraud Initiative brings the power of the False Claims Act to bear on contractors whose job is to protect sensitive information and critical systems. Representing that data is secure when it is, in fact, not is a violation of the False Claims Act and constitutes cyber-fraud. As the Special Agent in Charge of the U.S. Department of State OIG, Office of Investigations noted, “…this outcome will send a clear message that cutting corners on State Department contracts has significant consequences.”

Whistleblowers raised data privacy concerns to CHS, but the contractor failed to implement better cybersecurity protocols in response to their concerns. The Department of Justice has rewarded its first whistleblowers as part of the Civil Cyber-Fraud Initiative, and they’re just getting started.

Article By Tycko & Zavareei Whistleblower Practice Group.

For more articles about digital health, visit the NLR Health Care Law section.

Web Accessibility Claims Put Institutions of Higher Learning at Risk

From kindergarten through law school, there was always something to stress me out. Homework, tests, in-school assignments – along with the pressure to do well and the need to complete a project in an allotted time – could be paralyzing. To individuals with disabilities, the stress is often worse. Not only do they have similar concerns, but the thought that the materials may not be accessible in the format in which they can best learn or be tested is frustrating, and can be terrifying. In response, lawyers have figured out a way to make educators and educational institutions aware of the issue – through the looming threat of a class action lawsuit.

While many institutions of higher education believe they are accommodating and inclusive, the barriers presented by non-accessible websites and materials pose significant risk to these institutions and concern for their leaders. Institutions for education are common targets for web accessibility claims and will remain so for the foreseeable future. The constantly rotating mix of students who apply to and attend school each year presents institutions with a bevy of new potential plaintiffs with different disabilities and unique experiences. As such, a school must continually monitor its compliance and strive to be accessible.

Agricultural scientist and inventor George Washington Carver said, “Education is the key that unlocks the golden door to freedom.” When the ability to obtain an education is hampered by barriers to access, the system fails and the students’ opportunities can be lost. In response, the government has instituted safeguards and laws to protect the rights of students in both the public and private sectors.

The Laws Protecting People with Disabilities

Former U.N. Secretary General Kofi Annan recognized that “Knowledge is power. Information is liberating. Education is the premise of progress in every society, in every family.” Similarly, decades ago, the United States government recognized the need to provide proper protections for people with disabilities from disability-based discrimination and to move toward a more inclusive society. Through the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, the federal government took steps to provide reasonable accommodations so that people with disabilities do not become the disenfranchised.

Title II of the Americans with Disabilities Act (ADA) provides in section 35.130 that:

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

Similarly, in Title III of the ADA (section 36.201), the statute provides:

(a) Prohibition of discrimination. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.

By definition, a place of public accommodation “means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories … (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education.”

As such, regardless whether a school is a public or private institution, the ADA prohibits discrimination against an individual with a disability.

Individuals with disabilities also are protected against inaccessible school websites under sections 504 and 508 of the Rehabilitation Act of 1973. Section 504 (29 USC 794(a)) of the Act provides:

No otherwise qualified individual with a disability in the United States … shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency …

Further, section 508 of the Rehabilitation Act of 1973 (29 USC 794d) requires federal agencies and organizations receiving federal funds to make electronic information and information technology accessible for people with disabilities. Specifically, the law requires:

(1) Accessibility

(A) Development, procurement, maintenance, or use of electronic and information technology
When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology,

(i) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.

Institutions of learning, whether public or private, are therefore required to provide accommodations to people with disabilities when providing them with educational materials or other electronic information.

To ensure accessibility, the World Wide Web Consortium (W3C) has issued the Web Content Accessibility Guidelines (WCAG) international standard, including WCAG 2.0, WCAG 2.1 and WCAG 2.2, which explain how to make web content more accessible to people with disabilities. These are highly technical guidelines that might not be readily understood by risk managers or educators, but rather are routinely addressed by technology professionals. However, most complaints address a few major areas of concern, and website operators need to be cognizant of the following:

Alt Text for Images – alternative text that allows a vision-impaired individual the ability to understand the presence, function and content of images on a site
Link Text – text that allows a user to navigate a website and links to other webpages, documents and content
Form Labels – text that allows a user to understand forms on webpages
Keyboard Navigability – functionality that allows a user to navigate a website using a keyboard instead of a mouse
Captions – for all audio and video content
Proper Headers, Lists and Tables – functionality and formatting to allow a user to understand the ordering of content
No Flashing Graphics – graphics that flash have been known to inadvertently cause seizures in certain individuals.

Lack of Compliance Leads to Litigation

Despite the requirement that educational institutions comply with accessibility standards, most institutions do not comply. While schools have learned how to assist students with disabilities through physical and structural accommodations (such as ramps, automatic door openers and close parking spots), a lag in compliance with digital access still exists. Institutions of higher education often place the onus of communicating the necessary accommodations on students, and educational institutions often leave the communications with students to teachers and others who may not be as familiar with the accessibility rules as needed. With the growth in the importance of digital education, especially since COVID-19 pushed a greater proportion of learning online, the divide in digital compliance has become even deeper.

When COVID-19 first took hold and forced the migration of learning from an in-person classroom to an online experience, not everyone was prepared. A teacher who had accommodations set up in a classroom, might not know how to adjust them to the online environment. The use of vendors in assisting with the educational forum has taken on greater importance. With the outsourcing of certain aspects of learning comes a lack of control in ensuring that students with disabilities are provided with proper accommodations.

The description of an assignment online in a PDF format, or through instructions given on a website or module provided by a software vendor, now requires thought as to whether the accommodations agreed to in a written plan with the school are being addressed. These and many other questions have arisen due to the rapid increase in online learning:

Do the contracts that the schools entered into with the vendors provide for ADA accommodations?
Do the vendors have the ability to deliver compliance?
Are the institutions indemnified?
Do the teachers/professors or their administrative aides have the understanding and skills to recognize and deliver the accommodations?

Many schools and universities have been subjected to ADA web accessibility claims. It has been reported that Marcie Lipsett, founder and co-chair of the Michigan Alliance for Special Education, filed more than 2,400 web accessibility complaints against schools and districts under Title II, with more than 1,000 resulting in resolution agreements with the Office of Civil Rights.

In November 2018, Jason Camacho, a blind resident of Brooklyn, New York, commenced suit against 50 colleges and universities over the lack of accessibility of their websites. Mr. Camacho had allegedly attended a career fair where these schools were present, and claimed that when he attempted to obtain more information online, accessibility barriers prevented access. Mr. Camacho claimed that when he attempted to use a screen reader, which allows visually impaired individuals to receive the text and description of images on the screen through audible messages or braille, he was unable to access the schools’ website information with the assistive device. Although at least one school challenged jurisdiction and lost; settlements followed quickly.

Even the hallowed Harvard University could not escape suit. In 2015, a class action lawsuit was filed against Harvard alleging that many of its videos and audio recordings lacked captions or used inaccurate captions, despite the fact that Harvard promoted its online resources as being available to “learners throughout the world.” Harvard reached a settlement that was followed by an announcement from the National Association of the Deaf that Harvard would institute a series of new guidelines to make the school’s website and online resources accessible to those who are deaf or hearing impaired.

These lawsuits continue. In July 2021, a prospective student filed suit against Syracuse University alleging that the site was inaccessible and that he, along with other individuals who are blind or vision-impaired, faced “significant barriers” in applying to the school.

These lawsuits will likely continue until schools and universities pay more attention to the issues confronting students with disabilities.

AAAtraq Releases Study Showing Continuing Problem

Despite the surge in lawsuits and the increasing awareness of the risk, most websites still fail to achieve the technological standards followed to judge accessibility. AAAtraq, a compliance identification and management system vendor, analyzed the home pages of more than 2,000 higher education institutions and found that 96 percent of them failed to be inclusive. The study looked at the three most often cited vulnerabilities of sites:

Missing, inadequate or incorrect alternative text (Alt text) used to interpret images on a webpage
Missing, inadequate or inaccurate link text (which is used to describe a link that allows one to navigate a website or connects to another webpage, document, video or other linked content
Missing, inadequate or improperly described form labels (form field labels allow a user with disabilities to understand the information being requested to be input).

AAAtraq found that 13 percent of the institutions of higher education had a very high risk of being targeted due to the extent of failures on their home page, with another 48 percent of the institutions being classified as high risk. While 4 percent of the institutions were classified as low risk, AAAtraq noted that the results were based on an audit of the homepage of the institution’s primary website. With a “more in-depth audit,” AAAtraq believes that “it’s highly likely that failures could be identified on every website.”

The time is now for schools and universities to pay attention and start the process of making their digital presence inclusive to reduce the potential for being sued and enhance the ability to muster a defense if sued. In addition it will make such institutions more inclusive to an important demographic. American broadcast journalist Walter Cronkite once said “Whatever the cost of our libraries, the price is cheap compared to that of an ignorant nation.” Similarly, while there is a cost of compliance, the cost of failing to comply is much greater.

Article By Adam R. Bialek of Wilson Elser Moskowitz Edelman & Dicker LLP

For more articles on accessibility at higher education institutions, visit the NLR Public Education & Services section.

Chip Shortage? Now it’s a Ship(ping Container) Shortage

The never-ending impacts on the auto supply chain continue. We have written extensively on the shortages of chips and other parts, as well as the varied causes for these shortages. Automakers are currently feeling the disruptions of the crisis in Ukraine and sanctions against Russia on their supply chains. This post deals with yet another challenge—a shortage of shipping containers and cargo vessels.

The global backlog on shipping transportation has been well documented. An industry article last year, “Where are all of the containers?” concluded the domino effect of a shortage of container manufacturing before the pandemic was compounded with the pandemic related delays. Containers were stuck in inland ports, warehouse locations, or gobbled up by the highest bidder.

In November, the Washington Post reported that major retailers like Ikea were reprioritizing the products they were shipping via containers to focus on “lightweight” and “pliable” products to fit more in each container. This prioritization does not bode well for vehicles, which take up far more space than other consumer products. The Post report also noted approximately 3 million containers were stuck at various locations due to a lack of labor to transport them. Vox followed shortly after, claiming containers were “wrecking” the supply chain.

The situation has not improved. The New York Times analyzed the global shipping industry and concluded that the shipping constraints were unlikely to improve in 2022. Just this week, a massive cargo vessel carrying up to 4,000 vehicles (and 1,500 rare cars) caught fire and sank, reportedly destroying up to $400 million of vehicles. Fortunately, the crew was safely rescued, but manufacturers and car buyers alike who had long awaited the scarce space on a container ship saw their new vehicles – rare Bentleys, Porsches, and Lamborghinis – go up in flames. VW was apparently hit particularly hard, with a large portion of the vehicles on board slated for new VW car owners.

What will happen next? At least one container company cited trends toward increased shipping container manufacturing and regionalization of manufacturing and sourcing as potential avenues for relief. As more and more supply chain partners look to decrease the distance parts and supplies have to travel, and as labor markets start to normalize, the industry is hoping the competition for shipping containers will begin to ease.

Article By Lauren M. Loew of Foley & Lardner LLP

For more articles on the chip and ship shortage, visit the NLR Utilities & Transport section

Department Of Financial Protection & Innovation Issues Guidance Regarding “Situation in Ukraine and Russia”

Last Friday, Commissioner Clothilde V. Hewlett issued guidance concerning the “situation in Ukraine and Russia”. The guidance reminds licensees of their obligations under federal, and to a lesser extent, California law. The guidance mentions three areas of concern: sanctions, virtual currency and cybersecurity. I was somewhat taken aback by the guidance reference to the “situation”, but in several places, the guidance refers to the “Russian invasion”.

With respect to virtual currency, Commissioner Hewlett notes that the Russian invasion “significantly increases the risk that listed individuals and entities may use virtual currency transfers to evade sanctions”. She advises that all licensees engaging in financial services using virtual currencies should have policies, procedures, and processes to protect against the unique risks that virtual currencies present.

When Russia Came To California

In may come as a surprise that Russia once had plans to expand into California and even occupied a fort here for nearly three decades. Fort Ross, now a California state park, is situated on the California coast about 60 miles north of San Francisco. It was established in 1812 and represents Tsarist Russia’s southernmost settlement on the North American continent. The name of the fort is derived from the word “Russia”, which is derived from the name of a medieval people known as the Rus.

Article By Keith Paul Bishop with Allen Matkins Leck Gamble Mallory & Natsis LLP.

For more articles on cybersecurity, visit the NLR Cybersecurity, Media & FCC section.

One Less Way for Ohio Landowners to Challenge Royalty Severances

On February 15, 2022, the Ohio Supreme Court issued a significant decision in Peppertree Farms, L.L.C. v. Thonen establishing that, unless expressly stated otherwise, an oil and gas royalty interest retained in a deed executed prior to 1925 is not limited to the lifetime of the grantor. In so holding, the Ohio Supreme Court cut off one of the only grounds, other than the Dormant Minerals Act and Marketable Title Act, for landowners to quiet title and eliminate past oil and gas severances.

Ohio follows a legal tradition under which the default rules of English “common law” were adopted and then adapted by statute to form the basis of our legal system. At common law, a conveyance of real property had to include “words of inheritance” (i.e., an express statement that the royalty interest would last in perpetuity and be inheritable) or the interest being conveyed would be limited to the lifetime of the grantee (a life estate). Additional complications arose when a grantor sought to retain an interest by deed. If the grantor was retaining a right which had already been conveyed to him in perpetuity, then the retention qualified as a “technical exception” of a pre-existing right and additional words of inheritance were not required. However, if the grantor was creating and then retaining a new right, the retention qualified as a “technical reservation” and was limited to a life estate.

As new modes of production and corresponding property rights were discovered, it became unclear exactly what rights pre-existed a severance and the whole system of distinctions fell apart. In 1925, the General Assembly passed a law establishing that all future conveyances of real property were presumed perpetual unless stated otherwise. While eliminating this issue as to future deeds, the General Assembly did not settle the issue as to deeds executed before 1925 or clarify whether the retention of an oil and gas royalty was a “technical exception” or “technical reservation.”

In the Peppertree Farms case, Plaintiffs Peppertree Farms, Jay Moore and Amy Moore (collectively, “Peppertree”) sought to quiet title to certain lands in Monroe County, Ohio, against a severed oil and gas royalty interest (the “Royalty Interest”) originally retained by the grantor under a 1921 deed. In addition to a claim for extinguished under Ohio’s Marketable Title Act, Peppertree asserted that the Royalty Interest did not include words of inheritance and was therefore a newly created right which terminated upon the death of the grantor under the 1921 deed. Conversely, the defendant royalty owners (“Royalty Owners”) argued that the Royalty Interest was a pre-existing right which the grantor already held, and therefore could retain, in perpetuity without words of inheritance.

While Peppertree was able to convince both the trial and appellate court that the Royalty Interest was a newly created interest which was limited to a life estate, it was unsuccessful with the Ohio Supreme Court. Reasoning that a royalty was nothing more than the retention of part of the right to receive the proceeds of oil and gas production, the Court ultimately found that the Royalty Interest was a “technical exception” which survived the lifetime of the grantor. As a result, Peppertree was limited to its claims for extinguishment under the Marketable Title Act and Ohio surface owners lost another means to challenge ancient royalty reservations.

Article By J. Benjamin Fraifogl with Roetzel & Andress LPA.

For more articles on local state litigation, visit the NLR Litigation section.

13 Types of Law Firm Content Marketing That Really Work

If you are unsure about where to focus your law firm’s content marketing efforts, realize that there is more to this marketing strategy than just writing articles. Great content talks to the people that will consume your legal services and also to the search engines to support SEO. But content has many shapes and sizes so lawyers often wonder what options are appropriate for them. This article covers 13 types of content that any lawyer or law firm regardless of their practice area can add to their law firm’s marketing strategy.

Law Firm Blog Posts

Blog posts are one of the easiest ways to start creating content and getting your law firm’s name out there. You truly just need to sit down, write about what you know and what you are passionate about, and publish it. Of course, you want to make sure your content is attractive to your target audience, so use your market research to craft posts that are easily understood by and interesting to your audience. Marketing savvy law firm owners develop a theme to their blogs so after one year of producing content, they can stitch the material together in e-book or white paper format.

Infographics

Infographics are a powerful tool for lawyers and law firms to reach their target audience. Research indicates that people remember 65% of the information they see in a visual format, compared to just 10% of what they hear. Some attorneys shy away from creating infographics, but there are many online design tools to make it quick and easy to produce this type of original content for your law firm. Infographics can live on your website and even be repurposed in your firm’s social media presence or collateral materials. They are a great way of explaining steps in the legal process or even the interpretation of complicated laws.

Podcasts

This type of content requires lots of planning and time, but it can pay off in spades. Creating your own podcast that answers legal questions or explains complex legal concepts in fun, easy-to-digest ways allow you to reach a massive audience of potential clients with interest in your area of practice. Podcasts are a great idea for attorneys that have clients with similar issues. For a family law attorney this might include child custody issues or post-decree matters. A business attorney might have clients facing issues related to corporate formation or the hiring of vendors. Having a practice area-centered podcast with episodes that focus on issues that potential clients commonly struggle with will help you attract a greater audience of listeners.

Video Marketing

Videos showcase your personality, highlight what unique traits you bring to the table, and create a connection with potential clients. Integrate search terms into your video headline and description to bring in even more traffic to your website. YouTube is the “second largest search engine behind Google,” making it a great platform for uploading and sharing your law firm’s videos. These videos can be focused on the same frequently asked questions that you would answer in written format on your website. They can also be a case study or even a client testimonial.

Guest Posts

Publishing your content on other websites expands your network, strengthens your own website’s search engine optimization, and helps build your law firm’s brand—you have a lot to gain from just one post. You can publish on other legal blogs, magazines, and local publications. Guest posting is an easy way to credential your practice through bylines and repurposable written content.

Newsletters

Whether you publish monthly or quarterly, do not give up on your law firm’s newsletter. While some people have eschewed their newsletters for more modern forms of content, you leave out a significant part of your client base when you do so. For maximum effect, stick to a strict publication schedule that allows you to share valuable, relevant information—do not just send out a newsletter for the sake of it. Depending on your needs, you could do an e-mail newsletter, a print newsletter, or both. The biggest challenge for law firms and newsletters is staying on schedule and determining in advance what to say. Marketing savvy law firms develop an editorial calendar for their newsletters one year in advance, so they are never scrambling to publish the newsletter.

White Papers

Driven by data and statistics, white papers look at a specific issue within your practice area and dig deep into the information surrounding it. The information provided in a white paper also provides a path forward for solving the proposed issue. Law firms can successfully produce their own white paper content and keep it on their website to connect with potential clients. But be sure to use the help of a graphic designer if you intend to create a white paper for your law firm. Their creative eye will help make your content stand out to readers.

Curated Content

Sharing resources with website visitors and clients shows that you genuinely care about their wellbeing, not just getting them to become paying clients. You might create listicles that link out to useful resources and guides. These work great for consumer-facing practices that serve populations that might need guidance outside of their legal matter. For instance, a plaintiff personal injury attorney could publish ideas on mental health and wellbeing after being treated for a serious car accident. Your goal in using curated content is to be a central hub for the information your audience could need to know about your practice area and how it affects their lives.

Testimonials

Satisfied clients are often the best form of advertising. If potential clients see that you have successfully solved the problem they now face, they have substantial motivation to reach out to you. Testimonials and reviews can be collected and curated to be their own page on your law firm website. However, ensure that you are working within the laws and ethics that regulate law firm and lawyer advertising as this can be a sticky area of law firm marketing.

E-Books

Compared to print books, e-books require almost no financial output and are incredibly easy to share. Some attorneys use electronic books as a vehicle to provide in-depth guides for clients interested in their legal services, while others repurpose blog content into an e-book for easy reading. You can also write an e-book and use it as a lead magnet—for example, a construction defect attorney might give a copy of “7 Things You Need to Know Before Buying a Newly Built Home” to those who sign up for their e-mail list.

LinkedIn Articles

One type of content that is often underutilized is LinkedIn content. When you write an info-rich LinkedIn article and share it with your network, they can share it with their network. Your reach can multiply quickly with just one piece of well-written content. This is an excellent strategy for expanding your professional network, increasing the likelihood of client referrals and brand recognition.

Tutorials

Guides and tutorials offer detailed step-by-step instructions on specific tasks, which is content that consumers can use right away. The topics you cover depend on your audience and area of practice, so you could start by finding out what struggles your target market has and what legal issues you can immediately alleviate. For example, a family law attorney might write a how-to guide on gathering financial documents and other paperwork for easy analysis of assets during a divorce. A business law attorney could do a screencast of how to register a business in their state and set up tax filing.

Lectures and Speaking Engagements

When you establish yourself as a leader among your peers, you are in an excellent position to gain acceptance as an expert among potential clients. You can host CLE events and dig deep into a topic relevant to your area of practice, serve as a speaker at legal conferences, and share your expertise at other industry events. Be sure to share any video content of your speaking engagements on your website. If your speech is later transcribed, it becomes another content source that could bring in clients and contacts.

For modern law firms, content is a key component in their marketing and business development strategy. Everything on this list of content types will funnel traffic back to your law firm’s website. By integrating different types of content into your marketing plans and on your website, you can reach clients from all walks of life while establishing your position within your practice area.

Article By Meranda M. Vieyra with Denver Legal Marketing.

For more articles about law firm management, visit the NLR Business of Law section.

DHS Announces Temporary Protected Status for Ukraine and Redesignates TPS for South Sudan

Ukraine

The Department of Homeland Security (DHS) announced that Ukraine has been designated for “Temporary Protected Status” (TPS) for 18 months due to the invasion by Russia and ongoing conflict.

To qualify, Ukrainian nationals must have continuously resided in the United States as of March 1, 2022, and must apply to the U.S. Citizenship and Immigration Services within 180 days (until August 28, 2022). TPS applicants may also apply for Employment Authorization Documents (EADs) allowing them to work lawfully in the United States.

The TPS designation for Ukraine will remain in effect through September 1, 2023, at which time DHS will determine whether to redesignate or extend the current designation. Redesignation may extend TPS eligibility to Ukrainian nationals who arrived in the United States after March 1, 2022.

South Sudan

DHS also redesignated and extended TPS for South Sudan until November 3, 2023. South Sudanese TPS beneficiaries must re-register by May 3, 2022. EADs set to expire are automatically extended until November 3, 2022, but applications for new EADs must be filed as soon as possible. South Sudanese nationals and aliens having no nationality who last habitually resided in South Sudan may submit initial registration applications under the redesignation for TPS for South Sudan and apply for EADs.

Article By Ian P. Band of Hunton Andrews Kurth

For more articles on Ukraine, visit the NLR Immigration section.

Broad Majority Decisions in Terrorist Torture and Abortion Law Cases Resolve Important State Secrets and Intervention Procedural Issues: SCOTUS Today

The Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

Zubaydah has been among the most closely watched cases on the Court’s docket. Full disclosure: I am a board member of the Center for Ethics and the Rule of Law at the University of Pennsylvania, which has advocated for the closing of the Guantanamo Bay Naval Base in Cuba, where Zubaydah is detained, and for the rejection of privilege claims as to non-classified information concerning torture. Though I am not surprised by the outcome in the case, it is contrary to what many human rights organizations have been advocating. The admixtures of Justices also provide interesting insights as to how they approach matters of privilege and national security.

In what likely will be one of the last majority opinions written by retiring Justice Stephen Breyer, and subject to various concurrences by Justices Thomas, Kagan, Kavanaugh, and Barrett, the Court reversed the Ninth Circuit and upheld the government’s assertion of state secrets privilege to deny Zubaydah’s attempt to subpoena two CIA contractors from whom he sought to obtain information for use in litigation in Poland concerning his torture at an alleged “black site” in that country. The state secrets privilege allows the government to bar the disclosure of information that, were it revealed, would harm national security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953). While the Ninth Circuit had accepted much of the government’s claim, it concluded that the privilege did not cover information about the location of the detention site, which the court believed had already been publicly disclosed. Indeed, it is clear from the record in the case that there has been substantial public discussion of such a detention site in Poland. However, although the government has concluded that the “enhanced interrogation” to which Zubaydah had been subjected constituted torture, the fact of its location in Poland has never been formally confirmed by the United States. The state secrets privilege permits the government to prevent disclosure of information when that disclosure would harm national security interests, such as “the risk of revealing covert operatives, organizational structure and functions, and intelligence-gathering sources, methods, and capabilities.” Here, Justice Breyer, in a textbook case displaying the essential role that he has played on the Court in pragmatically fashioning majorities to form consensus opinions in controversial cases, accepted the view that verifying the existence, or non-existence, of a CIA black site in Poland, falls within the state secrets privilege because confirmation or denial of the site’s existence and location, even if such information has already been made public through unofficial sources, would harm relations among foreign intelligence services vital to U.S. interests. The majority also noted that the locational information is not essential to the case that Zubaydah is attempting to make, but it also rejected the remand to consider issues of Zubaydah’s treatment that Justices Kagan, concurring, and Justice Gorsuch (interestingly, joined by Justice Sotomayor), dissenting, would have allowed. In a case where there is virtually no disagreement among the Justices as to what the law is, the decision comes down to a procedural formulation that Justice Breyer loosely compares to applying exemptions under the Freedom of Information Act. In any event, the majority held that, as an objective matter, the government’s assertions of privilege and national security risk satisfied its burden of responding to the demand for information.

Notwithstanding the great public interest that surrounds the debate and litigation concerning the efforts of various state legislatures to restrict abortion and to obtain the reversal or narrowing of Roe v. Wade, the Court’s 8-1 majority (only Justice Sotomayor dissented) held only that the Court would not adopt an arbitrary claims-processing rule barring a non-party intervener from taking over an appeal, especially under the conditions presented here. Having first concluded that neither a jurisdictional requirement nor a mandatory claims-processing rule barred consideration of the attorney general’s motion, the Court concluded that no statute or rule restricts the jurisdiction of a court of appeals or provides a general standard to apply in deciding whether intervention on appeal should be allowed. The one passing reference to intervention made in the Federal Rules of Appellate Procedure only concerns the review of agency action. Accordingly, with “respondents cit[ing] no provision that deprives a court of appeals of jurisdiction in the way they suggest, and no such supporting language can be found in 28 U. S. C. §2107, Federal Rules of Appellate Procedure 3 and 4, or any other provision of law. . . [the] Court refuses to adopt what would essentially be a categorical claims-processing rule barring consideration of the attorney general’s motion. When a non-party enters into an agreement to be bound by a judgment in accordance with the agreement’s terms, it is hard to see why the non-party should be precluded from seeking intervention on appeal if the agreement preserves that opportunity. Here, the attorney general reserved ‘all rights, claims, and defenses . . . in any appeals arising out of this action.’ That easily covers the right to seek rehearing en banc and the right to file a petition for a writ of certiorari.”

Justice Sotomayor’s dissent, like the cheese, stands alone. She argues that every case should have a certain end point, and one should be applied here. One wonders if she would entertain a similar opinion in a case like this but where the plaintiffs are appealing. In any event, all of the other Justices are unified by the absence of any textual limitation on their jurisdiction to entertain a motion to intervene on appeal and the reasonable justification made for it by the state attorney general. Where Justice Alito found a constitutional basis for this conclusion and Justice Kagan would only have relied upon statutory interpretation, the vast majority of the Court agreed on the procedural regime adopted irrespective of the fact that there likely would be considerable disagreement about the constitutionality of the statute at issue in the underlying litigation.

Article By Stuart M. Gerson with Epstein Becker & Green P.C.

For more articles about Supreme Court cases, visit the NLR Litigation section.

US Crypto Regulatory Enforcement Ramps Up – NFTs Now More in Focus

For the past decade the crypto space has been described as the wild west. The crypto cowboys and cowgirls have innovated and moved the industry forward, despite some regulatory certainty. Innovation always leads regulatory clarity. There’s a new sheriff in crypto town – the US government and its various regulatory agencies. They seem intent on taming the wild west.

According to a recent report, the IRS Has Sent 10,000 Letters on Taxpayer Digital Assets seeking to collect taxes on gains from crypto assets including NFTs. This is no surprise and we have cautioned on this dating back to 2017. While many people have focused on the tax issues with crypto currencies, the IRS is also focusing on NFTs as reported here.

This comes on the heels of another report this week that the SEC is now targeting certain NFT uses. According to the report, the SEC is probing whether NFTs are being utilized to raise money like traditional securities. The SEC has reportedly sent subpoenas related to the investigation and is particularly interested in information about fractional NFTs. As we discussed here, fractionalization is just one of the potential securities law concerns with certain NFT business models. NFTs that represent a right to a revenue stream and NFT presales can also presents issues in some cases.

Other recent regulatory activity relating to NFTs includes the following. The Department of the Treasury published a study on the facilitation of money laundering and terrorist financing through the art trade, including NFTs. See our report on this here. The Treasury Department’s Office of Foreign Assets Control (OFAC) sanctioned a Latvia-based digital asset exchange and designated 57 cryptocurrency addresses (associated with digital wallets) as Specially Designated Nationals (SDNs). These designations appear to be the first time NFTs have been publicly impacted as “blocked property” – as one of the designated cryptocurrency addresses owns non-fungible tokens (NFTs). See our report on this here. A number of NFTs are also being used to facilitate illegal gambling.

In addition to the regulatory issues, the number of NFT-related lawsuits and other legal disputes continues to increase. Many of these disputes relate to IP ownership, IP infringement, failure to apply an clear or enforceable license to the NFT, among others.

Most of these issues are avoidable with proper legal counseling early on.

The use of NFT technology to tokenized and record ownership of physical and digital assets, as well as entitlements (e.g., tickets, access, etc.) is just getting started. We believe this technology will see wide scale adoption across many industries. The vast majority of the NFT business models are legal.

Article By James G. Gatto with Sheppard, Mullin, Richter & Hampton LLP.

For more about cryptocurrency regulations, visit the NLR Cybersecurity, Media & FCC section.

Government Continues Aggressive Antitrust Enforcement in the Healthcare Space

On February 24, 2022, the U.S. Department of Justice (“DOJ”) filed suit to block UnitedHealth’s proposed acquisition of Change Healthcare. UnitedHealth owns the largest health insurer in the U.S., while Change Healthcare is a data company whose software is the largest processor of health insurance claims in the U.S. The DOJ alleges that the acquisition, if allowed to proceed, would give UnitedHealth unfettered access to rival health insurers’ competitively sensitive information, including health insurance pricing. According to the complaint, this would lessen competition and “result in higher cost, lower quality, and less innovative commercial health insurance for employers, employees, and their families.”

The DOJ’s challenge continues a recent trend of aggressive enforcement involving vertical mergers (i.e. transactions between firms at different levels of the supply chain), with the Federal Trade Commission challenging three vertical mergers in the last year alone. These enforcement efforts represent a material shift from the prior enforcement attitude, which often allowed parties to resolve competition concerns raised by vertical mergers through conduct remedies such as information firewalls or supply commitments. The DOJ’s decision to forego such a remedy (assuming one was proposed) signals the government’s intent to take a tougher stance on mergers in the healthcare space. President Joe Biden previously listed prescription drugs and healthcare services as an antitrust priority area in his July 9, 2021 executive order.

The complaint was filed in the District Court for the District of Columbia and can be accessed here: https://www.justice.gov/opa/press-release/file/1476676/download.

Christopher Gordon also contributed to this article.

Article By Kaitlin E. Rittgers with Squire Patton Boggs LLP.

For more articles about healthcare, visit the NLR Health Care Law section.

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