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NIST Enhances Final Draft of NIST SP 800-172, Enhanced Security Requirements

Client Alert | 1 min read | 07.08.20

The National Institute of Standards and Technology (NIST) recently released the final public draft of NIST Special Publication (SP) 800-172, formerly known as Draft NIST SP 800-171B. Building on the security requirements in NIST SP 800-171, the applicable standard under DFARS 252.204-7012, 800-172 provides 34 enhanced requirements to protect Controlled Unclassified Information (CUI) associated with critical programs or high value assets from the risks posed by advanced persistent threats (APTs). 

Unlike prior drafts, 800-172 incorporates the protection strategy and desired effects on the adversary directly into the implementation guidance for each control. The Department of Defense (DoD) expects 800-172 to impact fewer than one percent of defense contractors. However, numerous requirements from Draft 800-171B were incorporated into the Cybersecurity Maturity Model Certification (CMMC) Levels 4 and 5, likely giving commenters the opportunity to affect future CMMC revisions.

Comments for the final public draft are due August 21, 2020.

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Client Alert | 4 min read | 08.07.25

File First, Facts Later? Eleventh Circuit Says That Discovery Can Inform False Claims Act Allegations in Amended Complaints

On July 25, 2025, the Eleventh Circuit Court of Appeals issued its decision in United States ex. rel. Sedona Partners LLC v. Able Moving & Storage Inc. et al., holding that a district court cannot ignore new factual allegations included in an amended complaint filed by a False Claims Act qui tam relator based on the fact that those additional facts were learned in discovery, even while a motion to dismiss for failure to comply with the heightened pleading standard under Federal Rule of Civil Procedure 9(b) is pending.  Under Rule 9(b), allegations of fraud typically must include factual support showing the who, what, where, why, and how of the fraud to survive a defendant’s motion to dismiss.  And while that standard has not changed, Sedona gives room for a relator to file first and seek out discovery in order to amend an otherwise deficient complaint and survive a motion to dismiss, at least in the Eleventh Circuit.  Importantly, however, the Eleventh Circuit clarified that a district court retains the discretion to dismiss a relator’s complaint before or after discovery has begun, meaning that district courts are not required to permit discovery at the pleading stage.  Nevertheless, the Sedona decision is an about-face from precedent in the Eleventh Circuit, and many other circuits, where, historically, facts learned during discovery could not be used to circumvent Rule 9(b) by bolstering a relator’s factual allegations while a motion to dismiss was pending.  While the long-term effects of the decision remain to be seen, in the short term the decision may encourage relators to engage in early discovery in hopes of learning facts that they can use to survive otherwise meritorious motions to dismiss....