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When is a doctor a doctor and when is a doctor a drug dealer? In early March, the U.S. Supreme Court heard oral argument in two consolidated cases — Ruan v. United States and Kahn v. United States — to address where that line is drawn. Since the mid-1970s, doctors who prescribe controlled substances are not subject to prosecution for unlawful distribution under the Controlled Substances Act unless those prescriptions “fall outside the usual course of professional practice.” United States v. Moore, 423 U.S. 122, 124 (1975). If a doctor prescribing controlled substances believes, mistakenly, that he or she is acting within the usual course of professional practice, that sounds like medical malpractice, but is it also a felony? The court granted certiorari in Ruan and Kahn to address a circuit split on whether a physician who prescribes controlled substances may be convicted of unlawful distribution under 21 U.S.C. §841(a)(1) without regard to whether, in good faith, that physician believed the prescriptions to fall within an acceptable course of professional practice. See, Ruan v. United States, No. 20-1410; Kahn v. United States, No. 21-5261.
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By Harry Sandick and Sarah Hardtke
The guidance mirrors the recent, broader impulse among U.S. prosecutors and regulatory agencies to extend application of U.S. law to foreign persons and entities, even when those persons and entities have only threadbare connections to the U.S.
By Jonathan B. New, Patrick T. Campbell and Rachel H. Ofori
Because PR firms may be considered third parties for privilege purposes, it is crucial that communications between a company’s counsel and its PR firm are handled with care to avoid waiving the attorney-client privilege.
Navigating the SEC’s New Cybersecurity Disclosure Rules
By Olivia J. Greer, Catherine Kim and Jeeyoon Chung
With the first cybersecurity rule for public companies, and the landscape of ongoing scrutiny and enforcement, SEC registrants should not lose time in reviewing their cybersecurity postures and policies to ensure compliance and, even ahead of formal adoption of certain still-pending rules, align with best practices.
Understanding the Difference Between Advocacy and Obstruction When Facing Government Investigations
By Christopher D. Carusone
Corporate counsel must understand the difference between advocacy and obstruction when facing government investigations.