President Trump Enacts Regulatory Freeze and Halts Public Communications for Federal Agencies

  • On January 20, 2025, President Donald Trump signed a memorandum titled, “Regulatory Freeze Pending Review,” imposing a regulatory freeze on all federal agencies.
  • The key points of the regulatory freeze are as follows:
    • Do not Propose or Issue Any New Rules: Agencies cannot propose or issue any new rules in any manner, including sending them to the Office of the Federal Register (OFR), until they are reviewed and approved by a department or agency head appointed by the President.
    • Automatically Withdrawing Unpublished Rules: Any rules that have been sent to the OFR but have not yet been published must be immediately withdrawn to be reviewed by a department head or agency head appointed by the President.
    • Delay Effective Date of Already Published Rules: For rules that have been published but have not yet taken effect, agencies are to consider postponing their effective date for 60 days to review any questions of fact, law, or policy. During this period, agencies may open a comment period for public input and consider further delaying the rules if necessary.
  • The freeze applies not only to rules but also to any substantive agency action, including Advanced Notices of Proposed Rulemaking (ANPR), Notice of Proposed Rulemaking, notices of inquiry, and any agency statement of general applicability that sets forth a policy on any regulatory or technical issue.
  • This freeze will impact all recently proposed rules by requiring them to undergo a review process, which may lead to the rules being withdrawn, modified, or delayed in implementation. The following recently proposed rules or finalized but not yet effective rules issued by FDA include:
  • Alongside the regulatory freeze, President Trump has directed federal agencies to temporarily stop all public communications. This includes press releases, social media updates, and other public statements. The pause is in effect through February 1.
  • Keller and Heckman will continue to closely monitor any changes made to pre-existing proposed or finalized rules and any new executive orders or rules promulgated by the new administration.
© 2025 Keller and Heckman LLP
For more on Federal Agencies, visit the NLR Election Law Legislative News section

Business Immigration in 2025: Signals from Recent Executive Orders

Immediately after assuming office on Jan. 20, 2025, President Donald Trump began issuing numerous executive orders. While they may not immediately impact business immigration, many of them presage changes in the business immigration landscape. The following is an analysis of several of these executive orders from that perspective:

  • Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. This executive order largely reiterates Trump’s Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, an executive order from his previous term. It tasks various government agencies with reviewing all visa programs to prevent foreign nation-states or other hostile actors from hurting the United States. This order will most likely result in an increase in scrutiny of visa applications and an increase in processing times across the board for all business immigration. We can expect an increase in the number of visa applications subject to administrative processing. These effects may discourage business immigration as business realities clash with system slowdowns.
  • America First Trade Policy. This executive order largely reiterates Trump’s Executive Order 13788, Buy American and Hire American (BAHA), from his previous term. The U.S. Trade Representative has been directed to review the implementation of trade agreements to ensure they favor domestic workers and manufacturers, consistent with the principles of that prior executive order. This may lead to a tightening of the labor market, as companies could be discouraged from hiring available foreign national candidates for positions. This could lead to an immigrant brain-drain as highly skilled immigrants trained at U.S. universities and institutions potentially immigrate to countries such as Canada. The USTR’s review may also affect treaty-based visas, such as the TN, E-1, E-2, and H-1B1 visas. Trump also issued America First Policy Directive to the Secretary of State, which may result in increased scrutiny of employment-based visa applications, as BAHA did under Trump’s previous term.
  • Guaranteeing the States Protection Against Invasion. This executive order characterizes migration at the southern border as an “invasion” and imposes vetting requirements on those immigrating to the United States. The likely impact is to create enhanced medical and security requirements for immigrants entering the U.S. While this executive order is drafted with the southern border in focus, Customs and Border Protection and the Department of Homeland Security will likely impose additional restrictions on business immigration as well, potentially creating travel disruptions due to inconsistent experiences at points of entry.
  • Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists. The designation of criminal organizations in the United States and Central America may portend a crackdown on and enhanced vetting of immigrants, including business immigrants, from areas where these organizations operate. This could cause slowdowns in business immigration across the southern border with Mexico.
  • Protecting the American People Against Invasion. This executive order expands expedited removal and revokes humanitarian parole programs created by the prior administration. Individuals who have secured status under those programs will be unable to renew work permits. It may also result in the return of “public charge” policies, which previously resulted in a slowdown for business immigrants seeking lawful permanent residency status. Furthermore, increased scrutiny and interior enforcement may lead businesses to forego hiring immigrant workers.
  • Protecting the Meaning and Value of American Citizenship. This executive order seeks to re-interpret the Constitution’s guarantee of citizenship for those born within the United States territory and who are subject to the jurisdiction of the United States. Notably, this executive order attempts to remove the grant of citizenship to certain business immigrants’ children born in the United States. Lawsuits have been filed challenging the impact of this executive order. This action may lead to increased difficulties for companies in recruiting and retaining foreign workers.

Conclusion

While these orders do not have an immediate impact on business immigration, they will likely cause an increase in administrative costs for companies with foreign workers and create retention challenges for companies. This may lead to an immigrant brain-drain, as highly skilled professionals, some of whom have been trained and educated in the United States, potentially seek to leave the country.

©2025 Greenberg Traurig, LLP. All rights reserved.
For more on Business Immigration, visit the NLR Immigration section

DOJ Announces Modest Increase in FCA Recoveries, Fueled Largely by Whistleblower Lawsuits

The Department of Justice (“DOJ”) recently announced a modest increase in monetary recoveries for 2024 from investigations and lawsuits under the False Claims Act (“FCA”), which is the Government’s primary tool for combating fraud, waste, and abuse. In fiscal year 2024, the DOJ recovered over $2.9 billion from FCA settlements and judgments, marking a 5% increase over 2023’s total and the highest amount in three years. Recoveries were fueled largely by qui tam lawsuits previously filed by whistleblowers, which contributed to $2.4 billion of the $2.9 billion recovered. The number of qui tams filed last year was also the highest ever in a single year at 979 cases. While health care fraud continues to be the primary source of enforcement activity, the rise in lawsuits stemmed from non-health care related cases. This underscores the Government’s and private citizens’ intensified enforcement efforts through FCA investigations and litigation in both the health care sector and beyond.

FCA Recoveries by the Numbers

While the nearly $3 billion recovered last year resulted from a record-breaking number of 566 settlements and judgments, last year’s haul remains well below peak year recoveries, such as 2014’s $6.2 billion and 2021’s $5.7 billion. The following chart illustrates the FCA recoveries by fiscal year, showcasing monetary trends over the past decade.

Key Enforcement Areas

In announcing 2024’s recoveries, the Government highlighted several key enforcement areas, such as:

  • The opioid epidemic. The Government continues to pursue health care industry participants that allegedly contributed to the opioid crisis, focusing primarily on schemes to market opioids and schemes to prescribe or dispense medically unnecessary or illegitimate opioid prescriptions.
  • Medicare Advantage Program (Medicare Part C). As the Medicare Advantage Program is the largest component of Medicare in terms of reimbursement and beneficiaries impacted, the Government stressed this remains a critical area of importance for FCA enforcement.
  • COVID-19 related fraud. Given the historic levels of government funding provided as a result of the COVID-19 pandemic, the Government also continues to pursue cases involving improper payment under the Paycheck Protection Program as well as false claims for COVID-19 testing and treatment. Close to half of 2024’s settlements and judgments resolved allegations related to COVID-19.
  • Anti-Kickback Statute and Stark Law violations. Cases premised on alleged violations of the AKS and Stark Law remain a driving force in FCA litigation for health care providers. In the last several years, there seems to be renewed interest in Stark Law enforcement, in particular.
  • Medically unnecessary services. The provision of medically unnecessary health care services also remains a widely-used theory of FCA liability, despite this being a historically challenging enforcement area often involving disputes over subjective clinical decisions.
© Polsinelli PC, Polsinelli LLP in California
For more on the DOJ, visit the NLR Criminal Law Business Crimes section

A Primer on Executive Orders and a Preview of the Road Ahead

On January 20, 2025, a new administration took control of the Executive Branch of the federal government, and it has signaled that it will make aggressive use of executive orders.

This would be a good time to review the scope of executive orders and how they may affect employers and health care organizations.

Executive orders are not mentioned in the Constitution, but they have been around since the time of George Washington. Executive orders are signed, written, and published orders from the President of the United States that manage and direct the Executive Branch and are binding on Executive Branch agencies. Executive orders can be used to implement or clarify existing federal law or policies and can direct and manage the way federal agencies interact with private entities. However, executive orders are not a substitute for either statutes or regulations.

The current procedure for implementing executive orders was set out in a 1962 executive order that requires that all such orders must be published in the Federal Register, the same publication where executive agencies publish proposed and final rules. Once published, any executive order can be revoked or modified simply by issuing a new executive order. In addition, Congress can ratify an existing executive order in cases where the authority may be ambiguous.

Although the President has extensive powers under Article II of the Constitution, that does not necessarily mean that executive orders can be issued and enforced on a whim. Over time, federal courts have reviewed executive orders and typically base their decisions on three questions: (1) has Congress delegated any authority to the President to act through an executive order?; (2) if so, what is the scope of any delegation?; and (3) did the President act within the scope of that delegation?

In a seminal case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme Court reviewed an executive order signed by President Truman directing the Secretary of Commerce to take possession of and operate most of the nation’s steel mills to prevent a strike from disrupting steel production during the Korean War. On appeal, the Court ruled that the executive order was not authorized under the Constitution or any statute, and that the President lacked any legislative power. It also rejected the argument that the President had an implied authority to issue the executive order under the military powers delegated to the President, as that did not extend to labor disputes.

More recently, during the COVID-19 pandemic, an executive order used the authority delegated in the Defense Production Act to address potential national defense and food supply disruptions. Nevertheless, deference to an executive order should not be presumed. Yet, even at the height of the pandemic, the Sixth Circuit ruled that the President lacked the authority to issue an executive order mandating that federal contractors be vaccinated against the COVID virus. In Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022), the Sixth Circuit ruled that the President’s reliance on the Federal Property and Administrative Services Act of 1949 (“FPASA”) was misplaced and did not authorize issuing an executive order binding on federal contractors; it determined that the act’s goal of improving economy and efficiency in federal procurement of property and services applied to the government itself and did not extend to issuing directives that may “improve the efficiency of contractors and subcontractors.”

The question of a delegation of authority to a President is not necessarily solved with an executive order directing an agency to issue regulations. For example, President Biden signed an executive order directing the Secretary of Labor to publish regulations setting a minimum wage of $15 per hour for federal contractors, based on his reading of FPASA. The regulations were challenged, and two Courts of Appeal reached opposite conclusions. In Bradford v. U.S. Dep’t of Labor, 101 F.4th 707 (10th Cir. 2024) the Tenth Circuit ruled that Congress had delegated broad authority under FPASA to the President in the language setting out the act’s purpose, and that he was justified in determining that a $15 minimum wage was consistent with the act’s goals. Nevertheless, in State of Nebraska v. Su, 121 F.4th 1 (9th Cir. 2024), the Ninth Circuit determined that the minimum wage mandate did exceed the authority granted to the President and the Department of Labor. That decision relied on a narrow reading of FPASA, and concluded that the intent of the statute was limited to ensuring that the federal government received value in contracts with private entities, and that setting a minimum wage for the employees of those contractors fell outside the reach of FPASA. Although there was a clear split among the circuits, the Supreme Court declined to resolve the matter. For now, disputes involving executive orders may have to be resolved on a case-by-case basis.

In the future, employers and health care organizations that supply goods or services to federal agencies or federally-funded programs should be concerned that if there are executive orders that affect their business, those orders should be examined carefully to evaluate not only the content of those orders, but whether they are authorized by law. EBG intends to monitor these developments along with any relevant rulemaking by federal agencies.

©2025 Epstein Becker & Green, P.C. All rights reserved.
For more on Executive Orders, visit the NLR Administrative Regulatory section

January 2025 Legal News: Law Firm News and Mergers, Industry Awards and Recognition, DEI and Women in Law

Thank you for reading the National Law Review’s legal news roundup, highlighting the latest law firm news! A new year means new law firm news. Please read below for the latest in law firm news and industry expansion, legal industry awards and recognition, and DEI and women in the legal field.

Law Firm News and Mergers

Jackson Lewis P.C. announced the elevation of 20 attorneys to principal status, including:

“We are proud to announce the elevation of our 2025 class of new principals,” said Firm Chair Kevin Lauri. “These individuals have demonstrated exceptional talent, steadfast dedication and a deep commitment to both our clients and the core values that define Jackson Lewis. This is a well-deserved achievement, and we are excited to see the continued leadership and impact each of the principals will bring to the firm in the years ahead.”

Bradley Arant Boult Cummings LLP welcomed its largest first-year class, including 49 associates and two staff attorneys. The class includes:

Atlanta

  • Kaylee M. Roberts – Litigation Practice Group (Emory University School of Law)
  • Joseph A. Shafritz – Healthcare Practice Group (Georgia State University College of Law)
  • Ashley E. Strain – Litigation Practice Group (Emory University School of Law)

Birmingham

  • Bidushi Adhikari – Litigation Practice Group and Construction Practice Group (Boston University School of Law)
  • Julianne L. Bayer – Litigation Practice Group (University of Alabama School of Law)
  • Katelyn Carson – Construction Practice Group (University of Alabama School of Law)
  • John Darby – Corporate & Securities Practice Group (The George Washington University School of Law)
  • Edward Gaal – Corporate & Securities Practice Group (Cumberland School of Law at Samford University)
  • Joshua S. Lewis – Banking & Financial Services Practice Group (Cumberland School of Law at Samford University)
  • Matthew J. Lloyd – Litigation Practice Group (Washington & Lee University School of Law)
  • Marlee Tomlinson Martin – Real Estate Practice Group (University of Alabama School of Law)
  • Daniel S. McCray – Litigation Practice Group (University of Virginia School of Law)
  • Ashlyn E. Payne –Banking & Financial Services Practice Group (Cumberland School of Law at Samford University)
  • Brianna Rhymes – Government Enforcement & Investigations Practice Group (Southern University Law Center)
  • Zachary B. Stewart – Construction Practice Group (University of Alabama School of Law)
  • Charlotte Udipi – Healthcare Practice Group (Washington University School of Law)
  • Macy Walters – Litigation Practice Group (University of Mississippi School of Law)

Charlotte

  • Tamara Boles – Litigation Practice Group (University of Alabama School of Law)
  • Steven Hix – Litigation Practice Group (University of South Carolina School of Law)
  • Noah Matthews – Construction Practice Group and Litigation Practice Group (University of Miami School of Law)

Dallas

  • Lexie Alexander – Litigation Practice Group and Government Enforcement & Investigations Practice Group (Emory University School of Law)
  • Stephen McCluskey – Litigation Practice Group (University of Texas School of Law)
  • Taylor E. Scott – Litigation Practice Group (Southern University Law Center)

Houston

  • Jonathan Adams – Litigation Practice Group (University of Texas School of Law)
  • Tim Almohamad – Construction Practice Group (University of Texas School of Law)
  • John “Carter” Byrum – Litigation Practice Group (University of Texas School of Law)

Huntsville

  • AJ Brien – Corporate & Securities Practice Group (University of Alabama School of Law)
  • Trevor G. Porter – Corporate & Securities Practice Group (University of Alabama School of Law)

Jackson

  • Marshall Jones Jr. – Real Estate Practice Group (Mississippi College of Law)
  • Shelby Parks – Litigation Practice Group (Mississippi College of Law)
  • Emily C. Stanfield – Litigation Practice Group (Mississippi College of Law)
  • Preston Garner Vance – Construction Practice Group and Litigation Practice Group (University of Mississippi School of Law)

Nashville

  • Stephanie Goldfeld – Labor & Employment Practice Group and Litigation Practice Group (University of Tennessee College of Law)
  • Dawn Jackson – Litigation Practice Group (University of Mississippi School of Law)
  • Zachary June – Litigation Practice Group (Duke University School of Law)
  • Nora Klein – Corporate & Securities Practice Group (Belmont University College of Law)
  • Cole S. Manion – Construction Practice Group (University of Kentucky J. David Rosenberg College of Law)
  • Amanda Norman – Litigation Practice Group (George Mason University Antonin Scalia Law School)
  • Carter Oakley – Real Estate Practice Group (University of Tennessee College of Law)
  • Monica Peacock – Economic Development & Renewable Energy Practice Group (Duke University School of Law)
  • Elizabeth T. Petras – Litigation Practice Group (Emory University School of Law)
  • Madison G. Porth – Litigation Practice Group (Vanderbilt University Law School)
  • Lily Rucker – Labor & Employment Practice Group (Vanderbilt University Law School)
  • Marlee Sacks – Litigation Practice Group (Emory University School of Law)
  • Jon Michael Sockwell – Litigation Practice Group and Banking & Financial Services Practice Group (University of Alabama School of Law)
  • Jaden R. Taylor – Corporate & Securities Practice Group (George Washington University Law School)

Tampa

  • Justin A. Clark – Corporate & Securities Practice Group (University of Florida Levin College of Law)
  • Lucie Hunter Fisher – Litigation Practice Group (Washington & Lee University School of Law)
  • Mary Rosado – Construction Practice Group and Litigation Practice Group (University of Florida Levin College of Law)

Washington, D.C.

  • Elizabeth A. Brown – Construction Practice Group and Government Contracts Practice Group (University of Alabama School of Law)
  • Winni Zhang – Construction Practice Group (Washington & Lee University School of Law)

“Each year, one of our firm’s overarching goals continues to be strategic growth and this includes adding talented young attorneys across a variety of practices. This group is no exception as we welcome this historically large class of attorneys across our footprint,” said Bradley Chairman of the Board and Managing Partner Jon Skeeters. “We look forward to working with this accomplished group and are pleased to welcome them to the firm.”

David Vallas joined Honigman LLP’s Chicago office as a partner in the business litigation practice group and litigation department.

Mr. Vallas focuses his over two decades of experience on real estate and commercial matters, representing lenders, developers and REITs in cases involving creditor disputes, commercial foreclosures and municipal compliance.

“With the commercial real estate market expected to bounce back in 2025, businesses will need an experienced litigator who can handle the myriad of complex legal challenges that may arise,” said J. Michael Huget, Chair of Honigman’s Litigation Department. “David consistently delivers solutions that align not only with his client’s strategic objectives, but the evolving demands of today’s dynamic market. We’re thrilled to bring him on board.”

Legal Industry Awards and Recognition

Proskauer Rose LLP announced that Brian Schwartz, partner in the firm’s private funds group, was named to the 2025 Rising Stars list by Venture Capital Journal. The list features limited partners, founders, investors and advisors who are under the age of 40 and have made their mark on the industry.

Mr. Schwartz represents private fund sponsors in different fund strategies, including venture capital, growth equity and buyout funds. His practice focuses on structuring, organizing, marketing and negotiating Private investment funds through all aspects of the fundraising process.

Nelson Mullins Riley & Scarborough LLP announced that Boca Raton partner Rusty Melges was selected for the Urban Land Institute’s 2025 Leadership Institute Cohort. He will join 35 other professionals to learn tools and insights to tackle the most urgent real estate and land use challenges in South Florida.

Mr. Melges focuses his practice on representing clients in real estate transactions involving the acquisition, financing, repositioning, development and leasing of office, commercial and mixed-use projects. In addition, he also regularly represents financial institutions in the mergers and acquisiton area as well as third-party risk management and corporate governance.

Moore & Van Allen PLLC announced that members Bill Zimmern and Rob Rust were added as leadership of the firm’s corporate team. They join members Billy Moore and Joe Fernandez.

Mr. Zimmern assists his clients with securities and general corporate matters, who come from a range of industries including information technology, financial services, healthcare, industrial and business services, real estate and retail. In addition, he provides advice on merger and acquisition transactions that is practical and business oriented.

Mr. Rust represents clients in transactional matters including commercial contract work, mergers and acquisitions, and joint ventures. His scope of representation encompasses complex domestic matters and significant cross-border transactions.

DEI and Women in Law

Womble Bond Dickinson LLP achieved a perfect score of 100 on the Human Rights Campaign Foundation’s 2025 Corporate Equality Index (CEI) for the tenth consecutive year. The tool highlights US company promotion of LGBTQ+ friendly workplace policies nationally and abroad.

The CEI looks at criteria under four pillars; business entity non-discrimination policies, equitable benefits for LGBTQ+ workers and their families, inclusive culture support and corporate social responsibility.

“As we celebrate this milestone, we remain dedicated to continuous improvement, within our own Womble community and in the community at large,” said Christine Xiao, co-chair of the firm’s LGBTQ+ affinity group, WBDPride.

Kimberly Smith, partner and global chair of Katten Muchin Rosenman LLP’s corporate department, was featured by by Mergers & Acquisitions as one of the 2025 Most Influential Women in Mid-Market M&A for the fifth consecutive year.

The list features women for their ability to foster innovation, dealmaking achievements, and impact within the larger landscape of mergers and acquisitions (M&A).

Ms. Smith leads complex M&A for family offices and PE funds, as well as handling leveraged buyouts, joint ventures and acquisitions. As the corporate department global chair, Ms. Smith leads over 150 lawyers in the United States, the United Kingdom and China. She oversees strategic areas such as M&A, capital markets, private equity and health care transactions.

Venable LLP announced that partner Elizabeth Manno was elected to the board of directors of the National Association of Women Lawyers (NAWL) for a three-year term. The organization’s goal is to provide resources to advance women in the legal profession, as well as advocate for the equality of women.

Ms. Manno served as co-chair of the NAWL’s Research Committee from 2019 to 2025 and the chair of NAWL’s Denver conference in 2019. She was awarded with NAWL’s Virginia S. Mueller Outstanding Member Award in 2019.

“We are thrilled to welcome Elizabeth to NAWL’s Board of Directors. Her extensive experience and proven leadership will be invaluable as we continue to promote our mission to advance women in the legal profession and advocate for the equality of women under the law,” said NAWL’s executive director, Karen Richardson. “We look forward to her insights and contributions as we work together to achieve our strategic goals.”

Ms. Manno focuses her practice on technology disputes such as licensing, patent infringement and other IP litigation. She represents clients from a wide range of technological fields including GPS, semiconductors, wireless devices, media streaming and artificial intelligence.

Copyright ©2025 National Law Forum, LLC
For more Law Firm News, visit the NLR Law Office Management section

FTC Surveillance Pricing Study Uncovers Personal Data Used to Set Individualized Consumer Prices

The Federal Trade Commission’s initial findings from its surveillance pricing market study revealed that details like a person’s precise location or browser history can be frequently used to target individual consumers with different prices for the same goods and services.

The staff perspective is based on an examination of documents obtained by FTC staff’s 6(b) orders sent to several companies in July aiming to better understand the “shadowy market that third-party intermediaries use to set individualized prices for products and services based on consumers’ characteristics and behaviors, like location, demographics, browsing patterns and shopping history.”

Staff found that consumer behaviors ranging from mouse movements on a webpage to the type of products that consumers leave unpurchased in an online shopping cart can be tracked and used by retailers to tailor consumer pricing.

“Initial staff findings show that retailers frequently use people’s personal information to set targeted, tailored prices for goods and services—from a person’s location and demographics, down to their mouse movements on a webpage,” said FTC Chair Lina M. Khan. “The FTC should continue to investigate surveillance pricing practices because Americans deserve to know how their private data is being used to set the prices they pay and whether firms are charging different people different prices for the same good or service.”

The FTC’s study of the 6(b) documents is still ongoing. The staff perspective is based on an initial analysis of documents provided by Mastercard, Accenture, PROS, Bloomreach, Revionics and McKinsey & Co.

The FTC’s 6(b) study focuses on intermediary firms, which are the middlemen hired by retailers that can algorithmically tweak and target their prices. Instead of a price or promotion being a static feature of a product, the same product could have a different price or promotion based on a variety of inputs—including consumer-related data and their behaviors and preferences, the location, time, and channels by which a consumer buys the product, according to the perspective.

The agency will only release information obtained from a 6(b) study as long as all data has been aggregated or anonymized to protect confidential trade secrets from company respondents, and therefore the staff perspective only includes hypothetical examples of surveillance pricing.

The staff perspective found that some 6(b) respondents can determine individualized and different pricing and discounts based on granular consumer data, like a cosmetics company targeting promotions to specific skin types and skin tones. The perspective also found that the intermediaries the FTC examined can show higher priced products based on consumers’ search and purchase activity.

As one hypothetical outlined, a consumer who is profiled as a new parent may intentionally be shown higher priced baby thermometers on the first page of their search results.

The FTC staff found that the intermediaries worked with at least 250 clients that sell goods or services ranging from grocery stores to apparel retailers. The FTC found that widespread adoption of this practice may fundamentally upend how consumers buy products and how companies compete.

As the FTC continues its work in this area, it issued a request for information seeking public comment on consumers’ experiences with surveillance pricing. The RFI also asked for comments from businesses about whether surveillance pricing tools can lead to competitors gaining an unfair advantage, and whether gig workers or employees have been impacted by the use of surveillance pricing to determine their compensation.

The Commission voted 3-2 to allow staff to issue the report. Commissioners Andrew Ferguson and Melissa Holyoak issued a dissenting statement related to the release of the initial research summaries.

The FTC has additional resources on the interim findings, including a blog post advocating for further engagement with this issue, an issue spotlight with more background and research on surveillance pricing and research summaries based on the staff review and initial insights of 6(b) study documents.

© 2025 Hinch Newman LLP
For more on the FTC, visit the NLR Communications Media Internet section

The Lobby Shop: Awaiting Trump’s Second Inauguration: GOP Challenges, Party Divisions, and What Lies Ahead [Podcast]

In the Lobby Shop’s first episode of 2025, co-hosts Liam Donovan, Caitlin Sickles and Dylan Pasiuk convene to analyze the political environment ahead of President-elect Trump’s second inauguration. The group explores the challenges facing Speaker Johnson in a very narrowly divided Congress, the enduring influence of Trump on the Republican Party and the Democrats’ growing sense of resignation in legislative struggles. The discussion also highlights the ongoing confirmation hearings and the outsized role of figures like Elon Musk in shaping party dynamics. As they look ahead to the next administration, the hosts wonder what these developments mean for Republicans’ leadership and direction.

© 2025 Bracewell LLP
For more Trump’s Second Inauguration, visit the NLR Election Law Legislative News section.

The DEI Stalemate: Paying the Price for the Wrong Move

In a unique, interactive session that was part of the firm’s annual In-House Counsel seminar, participants evaluated potential DEI outcomes by analyzing three fictional scenarios. With elements pulled from real-life cases, the discussion illustrated how the stakes can become increasingly high with DEI practices.

Each participant assumed a different role, from in-house counsel and employee to accuser and accused, creating a lively examination of the benefits of DEI and the challenges associated with implementation, as well as how to develop solutions for evolving issues in the DEI landscape.

The discussion was led by Ken Gray, leader of the Labor and Employment Law Group, X. Lightfoot, an employment and personal injury attorney, and Avery J. Locklear, a labor and employment attorney.

The Technology Company Scenario

The first scenario involved a well-intentioned technology company that recently hired a new SVP in charge of Diversity, Equity, and Inclusion (DEI), Jordan Ellis. The business in question is a tech leader with over 10,000 employees across the U.S.

Ellis was asked to perform an assessment of the company’s workforce and leadership diversity. He found a number of areas in need of improvement, including female representation in leadership, Black/African American representation in leadership, and Asian/Hispanic representation in leadership.

Tasked with improving these metrics by the CEO, Ellis re-evaluated the Director of Communications role held by John Roe, a White man with a strong track record. Ellis then made the decision to inform Roe of a strategic shift within the company and relieved him of his duties.

The role was split into two new positions that were filled by two qualified deputies: one a White woman, the other a Black woman. Ellis believed the move aligned with the company’s DEI goals, representing a strategic step in making the leadership more inclusive and diverse.

Potential Response to Litigation?

The audience was asked to determine if any possible defense asserted by the company in response to a claim made by Roe represented a house of cards. “This was a fairly clear example of discrimination in relation to Title VII,” noted Gray, “which prohibits discrimination based on race, color, religion, sex, and national origin.”

The scenario was based on a real case, Duvall v. Novant Health, Inc. “In this case, a white management level employee who received above average evaluations got the axe,” said Gray. “It was a one-week jury trial, and the jury awarded $10 million.”

The decision made clear that it is permissible for employers to use DEI programs; however, these programs may not form the basis for adverse employment decisions.

“Some call this reverse discrimination, but I just call it discrimination. It’s important to note that the Act doesn’t say in regard to sex, the female sex, or in regard to race, the Black race or the Brown race. It just says race, it just says sex,” Gray explained.

The case established a significant precedent and illustrated a pitfall associated with poorly implemented DEI programs.

A Venture Capital Fund’s Contested Contest

The next scenario involved a venture capital fund interested in supporting businesses led by women of color. To close the funding gap, the fund created a grant contest with a prize of $50,000, growth tools, and mentorship opportunities.

Eligibility was open to Black women who were U.S. residents, with businesses that were at least 51 percent Black woman-owned. The audience discussed potential legal issues an in-house attorney could face as a result of the contest, which included an entry form with official competition rules.

The rules were explicit, stating in all caps that, “BY ENTERING THIS CONTEST, YOU AGREE TO THESE OFFICIAL RULES, WHICH ARE A CONTRACT…”

Two companies with owners who were not Black women were rejected after submitting applications for the contest. The Chief Legal Officers for both companies, Vegan Now and Well Soul, were members of the Collective of Corporate Counsel (CCC), a national bar association promoting the common business interests of in-house counsel through education, networking, and advocacy.

Would it be permissible for CCC to sue on behalf of Vegan Now and Well Soul? Did the rules on the entry form constitute a contract? The audience considered these and other questions.

The contention of CCC was that the form constituted a contract since the potential contest winners entered into a bargain-for-exchange when they applied. CCC’s argument was based on 42 USC § 1981, a federal law prohibiting discrimination on the basis of race, color, and ethnicity when making and enforcing contracts.

CCC also contended that the contest violated section 1981 due to its terms, as it categorically excluded non-black applicants from eligibility because of race. “If this sounds familiar, the reason is that it mirrors the factual pattern of a case that went before the 11th Circuit Court of Appeals,” commented Lightfoot.

The case involved the American Alliance for Equal Rights and a venture capital fund out of Atlanta, the Fearless Fund. “Ultimately, the court ruled that the membership organization did have standing to sue on behalf of its members, and the contest likely violated Section 1981 of the Civil Rights Act of 1866,” added Lightfoot.

The Fearless Fund settled the lawsuit and discontinued the contest as a response.

Breaking Boundaries Baristas

In the final scenario, the team explored how a well-intentioned coffee shop owner brewed trouble in her organization with a DEI policy gone wrong. Hiring people of diverse backgrounds and creating a welcoming environment for her team was a central focus for the owner, Linda Harper, who operates three local branches with 20 employees.

One of Linda’s employees, Sam Rowe, was assigned female at birth. “Sam has been living as a man and recently shared that his new pronouns are he/him,” said Locklear. “Though Sam’s announcement was mostly accepted, some of the team didn’t felt comfortable with his transition.”

A heterosexual female colleague, Olivia Spencer, struggled to adapt to Sam’s pronouns and had to be corrected multiple times. A heterosexual male colleague, Ben Paulson, admits the transition makes him somewhat uncomfortable. However, he has respected Sam’s pronouns.

Locklear asked whether Olivia’s and Ben’s behavior has risen to the level of creating a hostile work environment. The answer, of course, is that it depends and, as it is with so many other topics within the legal profession, there is no such thing as a one-size-fits-all, bright-line rule that can be applied to every situation.

Slurs and the misuse of pronouns by co-workers can encourage similar behavior from customers. To illustrate this idea, Gray described a case in which he assisted a client in 2016. “People would approach the coworkers and ask whether their colleague was a man or a woman,” he said. “This would occasionally result in slurs, and the customers would pick up on that, perpetuating the hostile work environment.”

The facts have to be evaluated in the context of every situation. “It boils down to whether the behavior was so severe and pervasive it created a hostile work environment. There’s no magic number of how many harassing events need to occur,” advised Locklear. “It’s based on all the circumstances.”

The EEOC issued new guidance on transgender employees in the workplace in April of 2024. A key aspect of this guidance was the misgendering of employees in front of coworkers and customers to the extent it made them uncomfortable.

“If it’s a long-term employee, there are going to be mistakes, and everyone has to give each other a little bit of grace, but whenever in doubt, you can always just use that person’s name,” added Locklear.

Mandatory Work Events

In an effort to foster unity and celebrate Pride Month, Linda organizes a mandatory drag queen night for the entire workforce. Her hope is that an evening with celebrity impersonator, Holly Wood, could bring the team together through a shared experience emphasizing inclusion.

While some employees are pumped about the event, some, including Ben and Olivia, are not comfortable attending. Sam also feels uneasy, sensing the event is directed at him in a way that feels awkward instead of supportive.

Ben asks to be excused from the event; Linda reiterates that attendance is mandatory and disciplinary action will follow if employees fail to attend.

The day after, Olivia tells Linda she feels the company is “too woke,” and she no longer enjoys working there. Sam describes new tension with his colleagues and feels some are treating him differently as a result of the event.

After some reflection, Linda realizes her approach may have inadvertently caused discomfort among the employees she wanted to support with her commitment to inclusivity. To move forward, she begins considering new ways to promote understanding and respect within her team.

The audience considered what went wrong and there was vast consensus that the event should not have been mandatory.

“This could have been fun, but making it mandatory was a bad idea, especially since it was a social event and an employee had already expressed discomfort,” Locklear explained.

Though the scenario was farfetched, it holds a number of important lessons for employers, Locklear added. “One is to educate your workforce,” she said. “Another could be to update your policies so a person who is transitioning knows who they can talk to about it.”

Any information provided in confidence should remain confidential. Being open about new ideas and willing to have frank discussions with employees is advisable. Assessing whether dress codes are gender-neutral could be another proactive way to foster a positive work environment.

Conclusion

The employment attorneys highlighted well-intentioned actors taking steps that caused issues for members of their fictional workforces. The team cautions in-house counsel against unintended consequences and offers training insights in Part 2 of the session.

© 2025 Ward and Smith, P.A.. All Rights Reserved.
For more on the DEI Stalemate, visit the NLR Labor Employment and Civil Rights sections.

Breaking News: U.S. Supreme Court Upholds TikTok Ban Law

On January 17, 2024, the Supreme Court of the United States (“SCOTUS”) unanimously upheld the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”), which restricts companies from making foreign adversary controlled applications available (i.e., on an app store) and from providing hosting services with respect to such apps. The Act does not apply to covered applications for which a qualified divestiture is executed.

The result of this ruling is that TikTok, an app which is owned by Chinese company ByteDance and qualifies as a foreign adversary controlled application under the Act, will face a ban when the law enters into effect on January 19, 2025. To continue operations in the United States in compliance with the Act, the law requires that ByteDance sell the U.S. arm of the company such that it is no longer controlled by a company in a foreign adversary country. In the absence of a divestiture, U.S. companies that make the app available or provide hosting services for the app will face enforcement under the Act.

It remains to be seen how the Act will be enforced in light of the upcoming changes to the U.S. administration. TikTok has 170 million users in the United States.

Copyright © 2025, Hunton Andrews Kurth LLP. All Rights Reserved.
For more on TikTok, visit the NLR Entertainment Art Sports section

Direct Employer Assistance and 401(k) Plan Relief Options for Employees Affected by California Wildfires

In the past week, devastating wildfires in Los Angeles, California, have caused unprecedented destruction across the region, leading to loss of life and displacing tens of thousands. While still ongoing, the fires already have the potential to be the worst natural disaster in United States history.

Quick Hits

  • Employers can assist employees affected by the Los Angeles wildfires through qualified disaster relief payments under Section 139 of the Internal Revenue Code, which are tax-exempt for employees and deductible for employers.
  • The SECURE Act 2.0 allows employees impacted by federally declared disasters to take immediate distributions from their 401(k) plans without the usual penalties, provided their plan includes such provisions.

As impacted communities band together and donations begin to flow to families in need, many employers are eager to take steps to assist employees affected by the disaster.

As discussed below, the Internal Revenue Code provides employers with the ability to make qualified disaster relief payments to employees in need. In addition, for employers maintaining a 401(k) plan, optional 401(k) plan provisions can enable employees to obtain in-service distributions based on hardship or federally declared disaster.

Internal Revenue Code Section 139 Disaster Relief

Section 139 of the Internal Revenue Code provides for a federal income exclusion for payments received due to a “qualified disaster.” Under Section 139, an employer can provide employees with direct cash assistance to help them with costs incurred in connection with the disaster. Employees are not responsible for income tax, and payments are generally characterized as deductible business expenses for employers. Neither the employees nor the employer are responsible for federal payroll taxes associated with such payments.

“Qualified disasters” include presidentially declared disasters, including natural disasters and the coronavirus pandemic, terrorist or military events, common carrier accidents (e.g., passenger train collisions), and other events that the U.S. Secretary of the Treasury concludes are catastrophic. On January 8, 2025, President Biden approved a Major Disaster Declaration for California based on the Los Angeles wildfires.

In addition to the requirement that payments be made pursuant to a qualified disaster, payments must be for the purpose of reimbursing reasonable and necessary “personal, family, living, or funeral expenses,” costs of home repair, and to reimburse the replacement of personal items due to the disaster. Payment cannot be made to compensate employees for expenses already compensated by insurance.

Employers implementing qualified disaster relief plans should maintain a written policy explaining that payments are intended to approximate the losses actually incurred by employees. In the event of an audit, the employer should also be prepared to substantiate payments by retaining communications with employees and any expense documentation. Employers should also review their 401(k) plan documents to determine that payments are not characterized as deferral-eligible compensation and consider any state law implications surrounding cash payments to employees.

401(k) Hardship and Disaster Distributions

In addition to the Section 139 disaster relief described above, employees may be able to take an immediate distribution from their 401(k) plan under the hardship withdrawal rules and disaster relief under the SECURE 2.0 Act of 2022 (SECURE 2.0).

Hardship Distributions

If permitted under the plan, a participant may apply for and receive an in-service distribution based on an unforeseen hardship that presents an “immediate and heavy” financial need. Whether a need is immediate and heavy depends on the participant’s unique facts and circumstances. Under the hardship distribution rules, expenses and losses (including loss of income) incurred by an employee on account of a federally declared disaster declaration are considered immediate and heavy provided that the employee’s principal residence or principal place of employment was in the disaster zone.

The amount of a hardship distribution must be limited to the amount necessary to satisfy the need. If the employee has other resources available to meet the need, then there is no basis for a hardship distribution. In addition, hardship distributions are generally subject to income tax in the year of distribution and an additional 10 percent early withdrawal penalty if the participant is below age 59 and a half. The participant must submit certification regarding the hardship to the plan sponsor, which the plan sponsor is then entitled to rely upon.

Qualified Disaster Recovery Distributions

Separate from the hardship distribution rules described above, SECURE 2.0 provides special rules for in-service distributions from retirement plans and for plan loans to certain “qualified individuals” impacted by federally declared major disasters. These special in-service distributions are not subject to the same immediate and heavy need requirements and tax rules as hardship distributions and are eligible for repayment.

SECURE 2.0 allows for the following disaster relief:

  • Qualified Disaster Recovery Distributions. Qualified individuals may receive up to $22,000 of Disaster Recovery Distributions (QDRD) from eligible retirement plans (certain employer-sponsored retirement plans, such as section 401(k) and 403(b) plans, and IRAs). There are also special rollover and repayment rules available with respect to these distributions.
  • Increased Plan Loans. SECURE 2.0 provides for an increased limit on the amount a qualified individual may borrow from an eligible retirement plan. Specifically, an employer may increase the dollar limit under the plan for plan loans up to the full amount of the participant’s vested balance in their plan account, but not more than $100,000 (reduced by the amount of any outstanding plan loans). An employer can also allow up to an additional year for qualified individuals to repay their plan loans.

Under SECURE 2.0, an individual is considered a qualified individual if:

  • the individual’s principal residence at any time during the incident period of any qualified disaster is in the qualified disaster area with respect to that disaster; and
  • the individual has sustained an economic loss by reason of that qualified disaster.

A QDRD must be requested within 180 days after the date of the qualified disaster declaration (i.e., January 8, 2025, for the 2025 Los Angeles wildfires). Unlike hardship distributions, a QDRD is not subject to the 10 percent early withdrawal penalty for participants under age 59 and a half. Further, unlike hardship distributions, taxation of the QDRD can be spread over three tax years and a qualified individual may repay all or part of the amount of a QDRD within a three-year period beginning on the day after the date of the distribution.

As indicated above, like hardship distributions, QDRDs are an optional plan feature. Accordingly, in order for QDRDs to be available, the plan’s written terms must provide for them.

© 2025, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on the California Wildfires, visit the NLR California section