FCPA Disgorgement: Putting SEC To Its Burden Of Proof. The ability to require disgorgement of ill-gotten gains in Foreign Corrupt Practices Act cases is a powerful enforcement tool for the U.S. Securities and Exchange Commission. Disgorgement orders are a staple of the SEC’s FCPA enforcement docket, and are often in the millions or tens of millions of dollars. In 2016, for example, out of 24 SEC FCPA corporate settlements, 20 of them imposed disgorgement. Many of those disgorgement orders were for amounts of more than $10 million, and several of them were more than $100 million.
Limitations on Subcontracting: Regulatory Disconnect Leaves Small Businesses in an Untenable Situation - By Zachary Prince and Kristin Tisdelle
SPM's FCPA Compliance and Enforcement Trends Annual Guide: April 2017.
Beyond Prototyping: 3D Printing in Government Contracts - Smith Pachter McWhorter's Kelsey Wilbanks and Armani Vadiee discuss the history of 3D printing and its application and use in government contracts.
Proposed Changes to the Bayh-Dole Act Will Alter Contractor Timelines for Protecting Patents to Subject Inventions, Other Requirements
Muddying the Waters: Six Years of Confusion in the Wake of Maropakis - Richard C. Johnson and Ashley N. Amen discuss decision of the Federal Circuit in Maropakis Carpentry, Inc. v. United States, 6 years following the decision.
Kickbacks Result in Forfeiture of Claim: Taken to its logical conclusion, Laguna Construction provides that where an employee accepts kickbacks and the contractor lacks knowledge of the kickbacks, the contractor may be barred from recovering any unreimbursed costs under that contract.
Available now: Smith Pachter McWhorter's False Claims Act Practice Guide: 2016
When Does a Company ‘Knowingly’ Violate the Anti-Kickback Act? John S. Pachter and Todd M. Garland discuss a case currently pending before the U.S. Court of Appeals for the Fifth Circuit and how it will increase the stakes for companies faced with Anti-Kickback Act allegations.
How Should The CDA Limitations Period Apply To Government Indirect Cost Claims? - Alion Science & Technology Corp., ASBCA No. 58992 (Nov. 10, 2015)
Encouraging Signs for False Claims Act Litigation: Recent Decisions Aligned to Guide Supreme Court Review
Cost Impact Calculations: A Significant Raytheon Decision In The ASBCA
Challenging Negative Performance Evaluations: Confronting Hurdles at ASBCA and COFC
The ASBCA’s Raytheon Decision: Expressly Unallowable Cost, Directly AssociatedCost, and Performance Restricted Stock
After Metcalf Construction: Putting the Winstar Genie Back in the Bottle - By John S. Pachter
Whose Burden Is It, Anyway?: Implications Of The Federal Circuit Determination That The CDA Statute Of Limitations Is Nonjurisdictional
An Ounce of Prevention: A Guide for Combating Fraud in Construction.
By Wayne DeFlaminis, Sara P. Bryant, John Cook, and David Kirschbaum
Published in The Construction Lawyer, Volume 34, Number 3, Spring 2014 © 2014 by the American Bar Association
Case note: Huffman, et al. v. The Hilltop Companies, LLC, 747 F.3d 391 (6th Cir. 2014). An Arbitration Clause Will Survive Expiration of a Contract Even if the Arbitration Agreement is Not Listed in the Survival Clause
Attorney-Client Privilege Applies to Corporate Internal Investigations
By John S. Pachter
Client Advisory: Department of Justice FCPA Opinion Procedure Release 14-01 Addresses Business Transactions between Companies and Government Officials
By: Alana S. Tokayer
John Pachter and Richard Johnson authored an amicus brief on behalf of the Professional Services Council to the U.S. Supreme Court.
Independent Monitors: What They Do and How to Avoid the Need for Them - By John S. Pachter
Case Note: ASBCA Rejects Government's Four Damages Theories In Recent Defective Pricing Case. By Stephen D. Knight.
Differing Site Condition Claims: What Is Below the Surface of Exculpatory Clauses or Other Disclaimers? - Smith Pachter McWhorter's Owen S. Walker published a recent article in the Procurement Lawyer, Volume 48, Number 4, Summer 2013, about the potential effects of exculpatory clauses or other disclaimers on the Differing Site Condition clause.
Fifth Circuit Holds Contractors Subject to Vicarious Liability for Employees Engaged in Kickbacks - By John S. Pachter
Case Note: Space Gateway Support, LLC, ASBCA No. 55608, January 29, 2013 by Richard C. Johnson and Richard H. Snyder.
Establishing The Record In Court Of Federal Claims Bid Protests - Jonathan D. Shaffer, Mary Pat Buckenmeyer, and Zachary D. Prince have published a new Briefing Papers article about the importance of the composition of the administrative record in the resolution of a bid protest before the U.S. Court of Federal Claims. The full article is available here.
Metron, Inc.: A Primer for Proving Compensation Cost Reasonableness. Smith Pachter McWhorter member Stephen D. Knight and associate Kathryn T. Muldoon have published an article in Bloomberg Federal Contracts Report regarding a case in which they successfully argued before the Armed Services Board of Contract Appeals (ASBCA) regarding executive compensation review practices employed by the Defense Contract Audit Agency (DCAA). The ASBCA sustained the appeal filed by Mr. Knight and Ms. Muldoon and overruled the government's determination that the client's executive compensation was not reasonable. The full article is available here.
New article regarding the increase in terminations for convenience following the economic downturn. Smith Pachter McWhorter associate Erica J. Geibel has published and article in The Journal of Professional CM/PM Management regarding the increase of government contract terminations for convenience following the economic downturn. The full text of the article is available here.
The American Bar Association Section of Public Contract Law has recently published the Guide to State Procurement: A 50 State Primer on Purchasing Laws, Processes and Procedures.
Richard Johnson, Stephen Knight, John Pachter and Joe Smith recently prepared an article entitled “Geren v. Tecom, Inc.: The Federal Circuit Creates A New FAR Cost Principle,” which was published in the July 2009 edition of the Government Contract Costs, Pricing & Accounting Report
Stephen Knight recently prepared an article entitled "'Certified Estimates' and Mandatory Disclosure: A Bad Decision Makes for a Worse Regulation,” which was published in the Summer 2009 edition of The Procurement Lawyer, the quarterly members’ publication of the ABA’s Section of Public Contract Law.
Richard Johnson, Joe Smith, and Matthew Haws recently prepared an article entitled “Allowability of Legal Costs of Third-Party Lawsuits Following Tecom, Inc.,” which was published in the March 2008 edition of the Government Contract Costs, Pricing & Accounting Report.
Mark Hanson recently prepared an article entitled “Aspects of Construction Scheduling,” which was published in the October 2006 edition of the The Procurement Lawyer, the quarterly members’ publication of the ABA’s Section of Public Contract Law.