Commercial Litigation Update

The U.S. Court of Appeals for the Eleventh Circuit held in United States ex rel. Sedona Partners LLC v. Able Moving and Storage Inc., No. 22-13340 (11th Cir. Jul. 25, 2025), that while a district court has the discretion to dismiss a relator’s complaint before or once discovery has begun, it may not disregard the allegations of qui tam relators at the motion to dismiss stage solely because those allegations reflect information obtained in discovery.

In September 2025, the U.S. Attorneys’ Office for the Eastern District of Pennsylvania (EDPA) announced that it would be implementing a White-Collar Justice Program to strengthen its white- collar enforcement framework. Among other things, the program will “empower Assistant United States Attorneys to aggressively pursue complex investigations and significant new matters on their own initiative.”

This announcement demonstrates another step in federal districts ramping up their white-collar enforcement efforts while encouraging robust procedures for compliance and self-disclosure. This is a trend several years in the making: in September 2022, then-Deputy Attorney General Lisa Monaco directed U.S. attorneys and others within the DOJ to review their policies on corporate voluntary self-disclosure, and to draft and share a formal written policy to incentivize such self-disclosure, if one was lacking.

On August 22, 2024, the United States Department of Justice (“DOJ”) filed a complaint-in-intervention in a whistleblower lawsuit brought against Georgia Institute of Technology (“Georgia Tech”) and Georgia Tech Research Corporation (“GTRC”) asserting claims under the False Claims Act (“FCA”) and federal common law based on allegations that Georgia Tech and GTRC failed to meet cybersecurity requirements mandated by U.S. Department of Defense (“DoD”) contracts and DoD regulations.

In United States ex rel. Craig v. Georgia Tech Research Corp, et al., which is pending in the United States District Court for the Northern District of Georgia, the DOJ alleges that, from as early as May 2019, Georgia Tech and GTRC, an affiliate of Georgia Tech that contracts with government agencies for work to be performed at Georgia Tech, failed to enforce cybersecurity regulations in order to allegedly “accommodate ‘researchers [who were] pushing back’ on cybersecurity compliance because they found it burdensome.” The complaint-in-intervention further alleges that, until at least February 2020, “Georgia Tech failed to enforce basic cybersecurity at the Astrolavos Lab” despite the lab possessing “nonpublic and sensitive DoD information.” It is also alleged that, even after Astrolavos Lab implemented a system security plan, Georgia Tech and GTRC “failed to: (1) assess the system on which the Astrolavos Lab processed, stored or transmitted sensitive DoD data using DoD’s prescribed assessment methodology; and (2) provide to DoD an accurate summary level score for Astrolavos Lab to demonstrate the state of the lab’s compliance with applicable cybersecurity regulations.” The submission of a summary level score is a “condition of contract” for most DoD contracts.

On June 1, 2023, the U.S. Supreme Court unanimously settled a long-standing dispute over a subjective versus objective standard for scienter under the False Claims Act (FCA), holding that a defendant’s own subjective belief is relevant to scienter, rather than what an “objectively reasonable” person may have known or believed.

The case in question, U.S. ex rel. Schutte v. SuperValu Inc., consolidated from two lower court decisions, involved allegations that the defendants, two retail pharmacy chains, overcharged the government for prescription drugs in violation of ...

Continuing the issuance of opinions as to which the Justices are largely of one mind, the Court today handed down three decisions. Each gives important guidance to litigators on both sides of the ball. The first of these is a unanimous opinion settling the hotly debated question of whether intent under the federal False Claims Act (FCA) is a subjective or objective matter. It is the former. The second decision, also unanimous, clarified what a plaintiff must plead and prove to establish securities fraud regarding a stock offering through a direct listing. The third case offers a lone dissent over a majority and concurring opinions rejecting a labor union’s argument that the National Labor Relations Act (NLRA) preempts a state court tort action concerning workers sabotaging a company’s concrete trucks.