Commercial Litigation Update

New episode of our video podcast, Speaking of Litigation: Behind every successful trial is a team that knows how to work under pressure—but what sets trial teams apart?

In this episode, Epstein Becker Green attorneys Shruti Panchavati, Melissa Jampol, and Diana Costantino Gomprecht share their trial team experiences, breaking down how trial team dynamics can directly affect courtroom outcomes.

Tune in as the panel uncovers signs of dysfunction that can derail momentum and explores how jury, judge, and arbitrator perceptions hinge on a team’s professionalism, chemistry, and preparation.

With practical insights, real-world anecdotes, and nods to courtroom cinema classics, this episode offers a compelling glimpse into what it takes to handle complex litigation with precision and skill. Listen now to gain a deeper understanding of the factors that drive success in the courtroom.

On January 28, 2025, the U.S. Court of Appeals for the Ninth Circuit issued a significant ruling reinforcing the Fifth Amendment’s protection against self-incrimination and clarifying the attorney-client privilege in the context of grand jury subpoenas. In In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025), the Ninth Circuit held that counsel cannot be compelled to provide a privilege log delineating all documents a client previously sent to counsel for the purpose of obtaining legal advice unless and until the court conducts an in camera review of the documents at issue to determine whether the Fifth Amendment right against self-incrimination, as announced in Fisher v. United States, 425 U.S. 391 (1976), applies.^[1]

The decision further defines the limits of government subpoenas in criminal investigations and clarifies when privilege logs themselves may be shielded from disclosure. This ruling has far-reaching implications for attorneys, clients, and government investigations, particularly in white-collar, tax fraud and corporate compliance matters.

The U.S. Supreme Court decided three cases today, with one of particular interest to many readers of this blog. So, let’s start with that one.

Wisconsin Bell v. United States ex rel. Heath is a suit brought by a qui tam relator under the federal False Claims Act (FCA), which imposes civil liability on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim” as statutorily defined. 31 U. S. C. §3729(a)(1)(A). The issue presented is a common one in FCA litigation, namely, what is a claim? More precisely, in the context of the case, the question is what level of participation by the government in the actual payment is required to demonstrate an actionable claim by the United States. The answer, which won’t surprise many FCA practitioners, is “not much.”

The case itself concerned the Schools and Libraries (E-Rate) Program of the Universal Service Fund, established under the Telecommunications Act of 1996, which subsidizes internet and other telecommunication services for schools and libraries throughout the country. The program is financed by payments by telecommunications carriers into a fund that is administered by a private company, which collects and distributes the money pursuant to regulations set forth by the Federal Communications Commission (FCC). Those regulations require that carriers apply a kind of most-favored-nations rule, limiting them to charging the “lowest corresponding price” that would be charged by the carriers to “similarly situated” non-residential customers. Under this regime, a school pays the carrier a discounted price, and the carrier can get reimbursement for the remainder of the base price from the fund. The school could also pay the full, non-discounted price to the carrier itself and be reimbursed by the fund.

The U.S. Supreme Court’s ruling in American Hospital Association (“AHA”) v. Becerra (2022) sent shockwaves through the 340B drug pricing program when it held that CMS’ reduction of reimbursement for drugs purchased under the 340B program was not permitted by law. The Supreme Court chose not to address potential remedies and remanded the case back to the D.C. District Court for further proceedings on how to correct the underpayments. Instead of vacating the unlawful reimbursement rates, the District Court decided to remand without vacatur, allowing HHS the opportunity to remediate its underpayments.^[1] AHA v. Becerra (2023).

In response, the Centers for Medicare & Medicaid Services (CMS) issued a 2023 Final Rule mandating a retroactive lump-sum reimbursement to 340B participating hospitals for 340B underpayments made between 2018 and 2022. The Supreme Court’s decision, coupled with CMS’s administrative action, has led to significant contractual disputes and regulatory challenges as 340B contract hospitals seek restitution for past financial shortfalls while Medicare Advantage organizations (“MAOs”) grapple with the fiscal implications of these payment adjustments. The stakes are high, with hospitals seeking significant back payments and MAOs pushing back, arguing that their obligations are dictated by contracts, not federal rulemaking. As legal battles unfold, the question remains: Who is financially responsible for correcting these underpayments? This article analyzes these developments, focusing on the litigation between hospitals and MAOs and offering strategic contractual considerations in this shifting landscape.

[1] The court reasoned that vacatur would be highly disruptive due to the complexity of the Medicare system and potential budget neutrality concerns.

The U.S. Supreme Court has stayed the nationwide injunction that had been blocking the enforcement of the Corporate Transparency Act (CTA) while the merits of the CTA are pending a decision in the U.S. Court of Appeals for the Fifth Circuit, which will hear oral argument on March 25 in McHenry v. Texas Top Cop Shop, Inc.

The CTA requires more than 32 million existing businesses to disclose their beneficial owners. That number is expected to grow by five million new businesses per year. Texas Top Cop Shop, a firearms retailer, has challenged the CTA’s constitutionality.

During this interim period, it is unclear what, if any, action the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) will take. Today’s decision does not reinstate the previous January 13 filing deadline. Throughout the tortured history of this case, FinCEN has updated earlier compliance deadlines, but with a new administration, it is possible for the agency to await the action of the Fifth Circuit, which many believe is a commodious environment for firearms purveyors. Others stress the importance of a law designed in part to disclose foreign and domestic criminals who use anonymous U.S. companies to launder profits from drugs such as fentanyl or mask cybercrime-related transactions.

On January 7, 2025, the Consumer Financial Protection Bureau (“CFPB”) published a final Rule (the “Rule”) that prohibits consumer reporting agencies from including individuals’ medical debt on consumer credit reports. The CFPB states that this Rule, which amends Regulation V of the Fair Credit Reporting Act, aims to ease financial burdens placed on individual consumers seeking loans by preventing medical debt from negatively impacting credit scores. Additionally, the Rule prohibits creditors from considering consumer medical debt information in credit eligibility determinations and decisions.

The Rule has been published in the Federal Register and is scheduled to become effective March 17, 2024. A recent Executive Order, however, may delay or impact whether the Rule is implemented and, if it is implemented, the timing of when the Rule becomes effective.

The U.S. Supreme Court’s decision today in Andrew v. White merits at least passing attention. Though a capital murder case—not the sort of case that most of this blog’s readers are ever likely to confront—it provides a useful discussion of how holdings of the Supreme Court, or the fact of the Court’s having no precedent at all, should be applied to lower court proceedings.

In the case at bar, an Oklahoma jury convicted Brenda Andrew of murdering her husband and sentenced her to death. At trial, the state adduced substantial evidence concerning Ms. Andrew’s adulterous sex life and her failings as a wife and mother. In response to a subsequent habeas petition, the state conceded that much of this evidence was irrelevant. Ms. Andrew predictably contended that its admission violated the Due Process Clause. The U.S. Court of Appeals for the Tenth Circuit rejected that claim because it assumed that no holding of the Supreme Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. In a per curiam decision, the Supreme Court held that the circuit court “was wrong. By the time of Andrew’s trial, this Court had made clear that when ‘evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’ Payne v. Tennessee, 501 U. S. 808, 825 (1991).”

Having erroneously assumed that no relevant, clearly established law existed, the lower court never considered whether the state court’s application of such law was reasonable. Thus, on remand, the Tenth Circuit must initially consider whether a fair-minded jurist could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so “unduly prejudicial” as to render her trial “fundamentally unfair.” See Payne at 825. “The Court of Appeals must ask that question separately for the guilt and sentencing phases. As to each phase, it might consider the relevance of the disputed evidence to the charges or sentencing factors, the degree of prejudice Andrew suffered from its introduction, and whether the trial court provided any mitigating instructions.”

As the snow has fallen on Washington, DC’s First Street over the past few days, the Supreme Court has begun to issue opinions in the current term.

One of those cases has been in the news constantly, as it relates to a matter at issue in the recent presidential campaign that will likely get attention after the inauguration. The other two relate to federal court jurisdiction, but they are also consequential because their fact patterns are likely to be duplicated in future litigation.

While, with the advent of the new administration, things very well might change, the news today that the Court has upheld a law that could ban the social media platform TikTok this Sunday is significant not only to expressive younger Americans (perhaps your children and mine) but also as a matter of national security.

The Second Circuit Court of Appeals has once again revived Sarah Palin’s longstanding defamation suit against The New York Times. The Second Circuit’s opinion highlights important procedural and substantive issues in defamation actions involving public figures, particularly in the current polarized media environment.

Palin’s lawsuit, which we previously wrote about here, relates to a 2017 Times editorial that incorrectly linked a political ad from the 2008 Republican vice presidential candidate and former governor of Alaska to a 2011 mass shooting in Arizona that killed six people and injured 13 more, including Congresswoman Gabby Giffords. After an initial dismissal that was reversed on appeal, Palin’s case proceeded to trial in February 2022.

During jury deliberations, the District Court Judge announced in open court that he believed Palin had failed to produce sufficient evidence of actual malice, and, for that reason, would grant judgment in favor of the Times. However, the judge allowed the jury to continue deliberations and the jury subsequently returned a verdict for the Times. The court later revealed in a public filing that members of the jury had learned about the judge’s decision to dismiss the case during deliberations after receiving push notifications on their smartphones. This unusual procedural sequence, compounded by errors during the trial, led the Second Circuit to vacate the judgment and order a retrial, which is scheduled to begin on April 14, 2025.

New episode of our video podcast, Speaking of Litigation: What makes a jury work—and what earns their trust?

Dive into the nuanced world of jury selection with Epstein Becker Green attorneys Eric Neiman, Teddy McCormick, and Jonathan Brollier.

This episode unpacks the art of voir dire, blending centuries-old practices with innovative tools such as artificial intelligence-driven analytics. Along the way, they tackle how to identify bias, manage polarization, and create a fair but effective jury pool in an era of societal change.

From high-stakes civil trials to the finer points of building rapport with jurors, discover how modern litigators balance strategy with ethics to shape the courtroom narrative. Whether you’re a seasoned litigator or just curious about the inside workings of jury trials, this discussion offers fresh perspectives and practical advice for excelling in the courtroom.