Generic Representations of Regulatory Compliance Not Actionable under Federal Securities Laws

Adrienne C. Rogove

In a case alleging violations of federal securities laws by Cigna Corporation and certain of its officers, the Second Circuit Court of Appeals affirmed the dismissal of the complaint on the basis that the statements made by the defendants were simple, generic assertions about its regulatory policies and procedures upon which no reasonable investor would reasonably rely, and were therefore not materially misleading. Singh v. Cigna Corp., No. 17-3484-cv, (2d Cir. Mar. 5, 2019). Following Cigna’s acquisition of HealthSpring, a regional Medicare insurer, Cigna issued several public statements, including 10-K filings, concerning its commitment to regulatory compliance given the significant regulatory responsibilities involved in Medicare coverage. In its 2013 Form 10-K filed on February 27, 2014, Cigna said it had “established policies and procedures to comply with applicable requirements,” and that it “expect[ed] to continue to allocate significant resources” to compliance efforts. Id. at *5. In December 2014, Cigna published a pamphlet titled “Code of Ethics and Principles of Conduct,” which affirmed the importance of compliance and integrity:

[I]t’s important for every employee. . .to handle, maintain, and report on [Cigna’s financial] information in compliance with all laws and regulations. . .

[W]e have a responsibility to act with integrity in all we do, including any and all dealings with government officials.

Id. at **4-5. In its 2014 Form 10-K, Cigna stated that it would “continue to allocate significant resources” to compliance. Id. at *6. The 10-K included a discussion of the difficulty of compliance in the regulatory environment given the “uncertainty surrounding legislation and implementation of national healthcare reform.” Id.

A 2015 audit of Cigna’s Medicare operations by the Centers for Medicare and Medicaid Services (“CMS”) revealed numerous regulatory violations. Cigna filed a Form 8-K disclosing the CMS audit conclusions and accompanying sanctions. Within several days, Cigna’s stock price fell substantially. Continue reading “Generic Representations of Regulatory Compliance Not Actionable under Federal Securities Laws”

Appellate Division Holds That Non-Residents of New Jersey Have Right to Request New Jersey’s Public Records

Jaret N. Gronczewski

On May 16, 2018, the Appellate Division approved for publication a decision ruling that citizens from states outside New Jersey also have standing to obtain New Jersey’s public records under the Open Public Records Act (“OPRA”). The opinion—Scheeler v. Atlantic County Municipal Joint Insurance Fund, No. A-2092-15T2—was rendered in connection with three consolidated appeals in which the trial courts below came to conflicting conclusions about the scope of OPRA and who had standing to request documents pursuant to OPRA.

The pivotal language in dispute was the first sentence in the first paragraph of OPRA declaring it to be New Jersey’s public policy that “government records shall be readily accessible for inspection, copy, or examination by the citizens of this State.” N.J.S.A. § 47:1A-1. Despite this seemingly unambiguous language limiting OPRA’s rights to New Jersey citizens, the court disagreed. It rooted its rationale in other more specific sections of OPRA that had no such limiting language, the policy preference to construe the right to access broadly, OPRA’s history and purpose, and the fear of producing an absurd result.

In so holding, the court found that it owed no deference to a 2013 U.S. Supreme Court decision in McBurney v. Young, 569 U.S. 221 (2013) that referenced OPRA as one of several state open records statutes that limited access to citizens of its state. The court found that the U.S. Supreme Court’s reference was dicta and not binding.

Scheeler is an impactful ruling with wide-reaching implications that had amici arguments on both sides. While Scheeler does represent a significant victory for public access, helping entities such as out-of-state news organizations, local New Jersey municipalities appearing as amici feared that this ruling “would place an undue burden on their limited resources.” The Scheeler court recognized the municipalities’ concerns, but it declared that “[c]oncerns about OPRA’s practical ramifications should be directed to the Legislature.” Because of the significant public interest in the court’s holding on this legal issue, the New Jersey Supreme Court may grant certification if a petition is filed.

Judicial Independence in the Age of Trump

Stephen M. Orlofsky

“A bad high school student would understand this.” That is what President Donald J. Trump had to say about the Ninth Circuit, which was charged in Feb. 2017 with determining whether a district court’s order blocking the president’s travel ban should be reversed. Coming less than a month into his presidency, it was just one of many critical comments made by President Trump about the nation’s federal Judiciary since he took office. As the tweeting public knows, the president has criticized federal judges for political bias, and has gone so far as to blame them for future terrorist attacks.

As much as these criticisms may seem unprecedented, friction between the judicial and executive branches of the federal government is not new.

In response to the Supreme Court’s landmark decision in McCulloch v. Maryland, President Thomas Jefferson wrote privately that the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

President Andrew Jackson is reported to have said, “John Marshall has made his decision, now let him enforce it,” regarding an opinion by the Supreme Court on Cherokee Indians. President Franklin Roosevelt is known for having attempted to “pack” the Supreme Court when the justices were not as amenable to his New Deal program as he would have liked.

Even President Barack Obama, a scholar of constitutional law, called out the Supreme Court over its Citizens United decision during his 2010 State of the Union Address.

Despite its disputes with presidents, the federal Judiciary has remained independent since its inception—and, in this author’s view, it will remain so. It is true, never before has a president so vigorously attacked the Judiciary, alleging political bias, or, in the case of Judge Gonzalo Curiel, the inability to be fair because of his “Mexican heritage.” But in the Age of Trump, these types of attacks may be the new normal. While the tone of these attacks on the Judiciary is unprecedented, the U.S. Constitution was designed to ensure that the federal Judiciary remains independent, so it can function, even when under hostile fire by the president or Congress.

To read the full article, please click here.

“Judicial Independence in the Age of Trump,” by Stephen M. Orlofsky was originally published in the June 2018 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association. Reprinted with permission.

Appreciating Bitcoin: A Holiday Guide to Legal Hot Topics in Virtual Currency

Ethan M. Simon

Five years ago, one bitcoin sold for less than $15. Two years ago, the unit price was about $500. Now, the price of a bitcoin has topped $15,000, and it’s climbing fast enough to garner front-page attention by major newspapers. Since its inception, bitcoin has invoked thoughts of a shadow network where users trade in an untraceable electronic currency for drugs, weapons and other illicit goods and services. That world is not a fantasy, and some bitcoin holders have gone so far as to use bitcoins to hire hitmen, see, e.g., United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Continue reading “Appreciating Bitcoin: A Holiday Guide to Legal Hot Topics in Virtual Currency”

Ballot “Selfies” in New Jersey: Can You Instagram Your Vote?

Richard Wolf

Each November, Instagram, Facebook, and Twitter are full of celebrities and friends posting pictures of their ballots at their local polling places. In this age of social media, many users share “selfies” of themselves exercising their right to vote. Inevitably, other users post comments on these pictures alleging that sharing the picture can “invalidate” the vote or is otherwise illegal. Before heading to the ballots to elect a new governor on November 7, New Jersey residents should be aware of the current state of the law. Continue reading “Ballot “Selfies” in New Jersey: Can You Instagram Your Vote?”

Appellate Division Clears Way for Business Entities to Receive Brownfield Innocent Party Grants When Property Is Transferred among Family Members

Kevin R. Doherty

The New Jersey Appellate Division recently lessened the rigidity by which an innocent purchaser may be eligible for a so-called “Innocent Party Grant” to cover costs associated with the remediation of contaminated property. On September 20, 2017, the Court in Cedar Knolls 2006, LLC v. New Jersey Dep’t of Envtl. Prot.[1] reversed the New Jersey Department of Environmental Protection’s (“NJDEP”) attempt to limit Innocent Party Grants to natural persons, and found that an LLC may qualify as a “person” under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1, et seq. (“Brownfield Act”). Continue reading “Appellate Division Clears Way for Business Entities to Receive Brownfield Innocent Party Grants When Property Is Transferred among Family Members”

Pre-Complaint Discovery: An Underutilized, Underrated and Unknown Tool

Ethan M. Simon

Suppose there is a hit-and-run in a sparsely populated area. You are retained as counsel to represent the victim, who sustained significant property damage to her vehicle and debilitating personal injuries. After a preliminary investigation, you learn that there are no witnesses to the incident, but there is a nearby gas station equipped with video cameras that may have footage of the hit-and-run and from which you may be able to identify the other driver. The gas station refuses to share its video footage with you. At this point, you could file a “John Doe” complaint and then serve a subpoena on the gas station. But the fastest and cheapest way to obtain the video is by filing a petition for pre-suit discovery under New Jersey Rule 4:11-1. Continue reading “Pre-Complaint Discovery: An Underutilized, Underrated and Unknown Tool”