On June 29, 2023, the U.S. Supreme Court struck down the race-conscious admissions programs at Harvard University and the University of North Carolina at Chapel Hill in a pair of cases brought by Students for Fair Admissions (SFFA).  The Court in SFFA found the universities in violation of the Equal Protection Clause and Title VI of the Civil Rights Act, holding that the diversity-focused admissions programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

Audax Private Equity recently announced it closed two new funds with a combined $7.8 billion.

Audax Private Equity Fund VII was oversubscribed, hitting its hard cap of $5.25 billion.

Audax Private Equity Origins Fund I closed with $774 million, exceeding its initial target. This fund is the firm’s first lower middle market strategy.

When combined…

Manufacturers face an ever increasing risk of liability exposure for pollution caused by polyfluoroalkyl substances, commonly known as “PFAS.” In early June this year, it was reported that 3M, as have other large chemical manufacturers, settled pending litigation involving PFAS-contamination in U.S. cities for an estimated $10 billion and aimed to resolve allegations that 3M polluted bodies of water in several U.S. cities.[1] This reported settlement comes after another recent $1.19 billion settlement related to the contamination of water systems.[2] Moreover, environmental regulators—including the Environmental Protection Agency (“EPA”) under the Biden Administration—have made PFAS a priority in recent years.[3]

On July 26, 2023, the U.S. Department of Justice’s National Security Division, U.S. Department of Commerce’s Bureau of Industry and Security, and U.S. Department of the Treasury’s Office of Foreign Assets Control issued a Tri-Seal Compliance Note (the Note) detailing updates to the three agencies’ voluntary self-disclosure policies applicable to violations of U.S. sanctions, export controls, and other national security laws.  The agencies highlighted the essential role that the private sector plays in identifying threats from malicious actors and foreign adversaries seeking to undermine the American economy and national security, and they encouraged prompt voluntary self-disclosure and remediation of apparent violations. The Department of Justice announced an updated policy that it “generally will not seek a guilty plea, and there will be a presumption that the company will receive a non-prosecution agreement and will not pay a fine” in cases “where a company voluntarily self-discloses potentially criminal violations, fully cooperates, and timely and appropriately remediates the violations.”

Once an outlier, the 11th U.S. Circuit Court of Appeals recently joined seven other Circuit Courts in holding that receipt of a single, unwanted text message constitutes the concrete injury required for standing in class actions filed under the Telephone Consumer Protection Act. Read on for details about this development and implications for TCPA class…

On July 26, the U.S. Securities and Exchange Commission adopted new rules regarding public companies’ reporting of (i) cybersecurity incidents, (ii) policies and procedures for identifying and managing cybersecurity risks and (iii) management and board roles in implementing cybersecurity policies and procedures. Read on for details about the new rules and recommended next steps for…

TPG has announced it has acquired Nextech from Thomas H. Lee Partners (THL) for $1.4 billion.

Nextech, based in Tampa, Fla., is a provider of clinical and administrative healthcare technology solutions for specialty physician practices. Founded in 1997, the company states it services more than 11,000 physicians in dermatology, ophthalmology, orthopedics, plastic surgery and med spa.

TPG is investing…

11th Circuit

Last month, the Eleventh Circuit upheld a $1.195 million restitution order and 48-month sentence against Carlos Verdeza for three counts of healthcare fraud. See United States v. Verdeza, No. 21-10461, 2023 WL 3728960 (11th Cir. 2023). Verdeza was a case brought by the United States against a physician assistant who produced fraudulent patient files and sought reimbursement from Blue Cross Blue Shield (BCBS) commercial healthcare insurance for physical therapy treatments that were never performed. A jury in the United States District Court for the Southern District of Florida convicted Verdeza on three healthcare fraud counts. Verdeza illustrates that prosecutors can and do prosecute healthcare fraud cases that do not involve government payors.

In United States ex rel. Polansky v. Executive Health Resources, Inc., the U.S. Supreme Court recently resolved a circuit split[1] by holding that in a False Claims Act (“FCA”) action (1) the Government may seek dismissal of a qui tam case in which it initially declined to intervene over the relator’s objection as long as the Government later intervened in the litigation, and (2) that in considering such a dismissal motion, district courts should apply the rule generally governing voluntary dismissal of suits: Federal Rule of Civil Procedure 41(a).  Under Rule 41(a), the Court explained that the Government has broad latitude to seek dismissal stating that “motions will satisfy Rule 41 in all but the most exceptional cases.”  The decision is an important one for the Government and FCA defendants.  But perhaps as important as the Court’s central holding in the Polansky case (and certainly more surprising), was the view expressed by Justice Thomas in dissent (and echoed by Justice Kavanaugh in a concurring opinion joined by Justice Barrett) that the FCA’s qui tam provision permitting a private citizen to litigate a case on behalf of the United States may be unconstitutional.