Robyn N. Burrows
The Supreme Court in Food Marketing Institute v. Argus Leader Media, No. 18-481 (U.S. June 24, 2019) recently relaxed the standard for withholding confidential information under Exemption 4 of the Freedom of Information Act (“FOIA”)—a major win for contractors that regularly submit sensitive business information to the government.
Exemption 4 protects from disclosure trade secrets and commercial or financial information that is privileged or confidential. For the past 45 years, courts have been guided by the stringent “competitive harm” test first enunciated in National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). This test allowed an agency to withhold information as “confidential” only if disclosure would (1) impair the government’s ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Many businesses objected to this test as overly burdensome and causing confusion about the showing required to establish substantial competitive harm. Continue reading “The Supreme Court Expands the Meaning of “Confidential” Information under FOIA Exemption 4”
Robyn N. Burrows
On February 13, the Office of Federal Contract Compliance Programs (“OFCCP”) issued Directive 2019-04 which establishes a framework for the Voluntary Enterprise-wide Review Program (“VERP”). Under this new program, OFCCP will work with “high-performing” contractors to achieve sustained, corporate-wide compliance with the laws and regulations OFCCP administers and enforces requiring nondiscrimination and equal employment opportunity. Notably, participating contractors are removed from the pool of contractors scheduled for compliance evaluations.
Eligibility for Participation
Contractors can apply to the program beginning in fiscal year 2020. As part of the application, OFCCP will conduct compliance reviews of the contractor’s headquarters location as well as a sample or subset of establishments. Contractors must meet established criteria verifying basic compliance with OFCCP’s requirements and must further demonstrate their commitment to and application of successful equal employment opportunity programs on a corporate-wide basis. Continue reading “OFCCP’s New Voluntary Program Exempts “High-Performing” Contractors from Compliance Evaluations”
Robyn N. Burrows
Over two years ago, the Supreme Court in Universal Health Servs. v. U.S. ex rel. Escobar, 136 S. Ct. 1989 (2016) upheld the implied certification theory of liability under the federal False Claims Act (“FCA”). Applying a two-part test, the Court stated that implied liability would attach where “at least two conditions” are satisfied: (1) the claim makes specific representations about goods or services provided and (2) the defendant’s failure to disclose noncompliance with a material statutory, regulatory, or contractual requirement renders those representations “misleading half-truths.” Courts interpreting Escobar have disagreed as to whether this two-part test is the exclusive means for establishing liability under the implied certification theory, or whether other circumstances might also trigger liability. For example, several courts have noted that Escobar’s reference to “at least two conditions” implies that other, unspecified factors might also be sufficient to create an implied certification claim. The Fourth Circuit, along with several other district courts, have adopted this more liberal view. Most other circuits that have addressed this issue, however, have found the two-part test to be mandatory. The First, Third, Fifth, and Seventh Circuits, as well as many district courts, have either explicitly or implicitly held that Escobar’s two-part test is the exclusive means of establishing implied certification. Continue reading “The Ninth Circuit Reluctantly Joins Majority of Courts in Mandating Escobar’s Two-Part Test for Implied Certification”