In the aftermath of a 2012 platform explosion in the Gulf of Mexico in which three workers were killed, the Department of Justice ultimately indicted the contractors who supervised the work (along with the lease holder, Black Elk Energy Offshore Operations, LLC) with violating the Outer Continental Shelf Land Act (“OCSLA”), a felony carrying a maximum penalty of up to ten years imprisonment.  The contractors were also charged with certain misdemeanor Clean Water Act violations.  The contractors moved to dismiss the OCSLA charges on the basis that their conduct – as contractors – was not covered by OCSLA because they were not the lease holder or operator.  The district court agreed and dismissed those charges, after which the government appealed.  Earlier this week, the Fifth Circuit ruled against the government finding that contractors cannot criminally violate these OCSLA regulations.  United States v. Moss, et al, No. 16-30561 (5th Cir. Sept. 27, 2017).


Continue Reading The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies

In a published opinion last week, the Fifth Circuit sent a reminder to would-be False Claims Act (“FCA”) relators that they better think carefully before filing suit because while they may be seeking treble damages, they may ultimately be held liable for significant taxable costs should their complaint fail to survive summary judgment.
Continue Reading False Claims Act Relators Be Warned: Rule 54’s Taxable Costs Award Lies Ahead for the Overeager Relator

Faced with the prospect of having to defend another costly test-case trial in a multidistrict litigation proceeding involving over 9,000 plaintiffs, the defendants (petitioners before the Court of Appeals) filed a writ of mandamus challenging the district court’s decision that they waived their jurisdictional and venue objections (known as a Lexecon waiver).  Had the Court of Appeals granted the writ, the district court’s decision would have been reversed and the upcoming test-case trial would have been stopped for lack of jurisdiction and venue.  While the Court ultimately denied the writ, it did so in a way that advanced the defendants’ case.  In re: DePuy Orthopaedics, Inc., No. 17-10812 (5th Cir. Aug. 31, 2017).
Continue Reading The Fifth Circuit’s Decision in In Re: DePuy Orthopaedics, Inc., et al, Illustrates the Possibility that Even When You Lose a Writ of Mandamus, You May Still Win

Earlier this year there was hope in the food and drug industries that the Supreme Court would revisit and possibly revise the Responsible Corporate Officer Doctrine, also known as the Park Doctrine, by granting certiorari to the Eighth Circuit’s decision in United States v. DeCoster.  That hope was dashed in May when the Supreme Court declined, which left the Park Doctrine – with all of its ominous peril – the law of the land.
Continue Reading U.S. Supreme Court’s Decision Not to Take Certiorari in United States v. DeCoster is a Reminder to the Food and Drug Industries to be Mindful of the Park Doctrine