This might sound like a familiar story: you start work at a new company and have to sign a seemingly endless mountain of forms and employment agreements during onboarding. One of the agreements that you might have signed is a non-compete agreement, which prevents employees from working for a competing employer or starting a competing business, typically within a certain geographic area and period of time” following the end of their employment. (FTC). In January 2023, the Federal Trade Commission (“FTC”) proposed a new Rule that would ban all non-competes. Id. Naturally, businesses, such as those affiliated with the Chamber of Commerce, were not the most enthusiastic about the Rule, leading them to challenge the Rule in federal court in the case Ryan LLC v. Fed. Trade Comm'n, No. 3:24-CV-00986-E, 2024 WL 3297524 (N.D. Tex. July 3, 2024). The court ruled that the FTC cannot enforce the ban on non-competes. Id. at 11. This post will cover the reasons why the FTC implemented the Rule, the pros and cons of the Rule, the court’s reasoning for halting the Rule, and the implications of the court’s decision.

The U.S. Food & Drug Administration (“FDA”) is looking to elbow its way into the medical testing business by mandating stricter regulations that would slow the process of bringing lab-developed tests (“LDTs”) to market. LDTs are common medical diagnostic tests that have led to both diagnostic advances and setbacks that affect the everyday consumer. (FDA News Release, U.S. Food and Drug Administration). The FDA’s regulation was previously opened for a 60-day comment period and was met with vigorous discussion. Regardless, the FDA moved forward with the regulations on April 29, 2024, and has been met with legal push back and Congressional commentary that could threaten the future of the proposed rule. (Chair Rogers, U.S. House Energy and Commerce Committee).  This post examines the current structure of LDT regulations, their marketability, and how this regulation change will affect small startups and patient experiences.

Benjamin Franklin once said, "Nothing is certain except death and taxes." (Benjamin Franklin, Letter to Jean-Baptiste Le Roy).  In a recent United States Supreme Court (“SCOTUS”) decision, the tax portion is more certain than ever. (Richard Rubin, Wall Street Journal). On June 20, 2024, SCOTUS rejected a challenge to a 2017 tax law (“Tax Law”) on certain foreign investments. (Moore v. United States, 144 S. Ct. 1680, 1697 (2024)). The decision keeps the foreign investment tax intact, while avoiding addressing a 16th Amendment interpretation. (Richard Rubin, Wall Street Journal). This article explores the case's background, the Court's reasoning, and how this decision will ultimately discourage individuals from investing in foreign companies

The U.S. Consumer Financial Protection Bureau (“CFPB”) recently introduced a new proposed rule change that will expand its regulatory oversight to “‘general-use digital consumer payment apps.’” (Jessie Chang, ABA). The Consumer Financial Protection Act allows the CFPB to supervise nonbank entities in the mortgage, payday loan, and private student loan sectors, as well as service providers to banks and credit unions, but the CFPB can also oversee companies that pose consumer risks or are “larger participants in other markets.” (Consumer Financial Protection Bureau). While the CFPB has used its power to regulate “larger participants” in markets involved with consumer financial products and services before, this proposed rule will expand its oversight to a brand-new height by including more non-traditional banking companies. (A&O Shearman). CFPB Director Rohit Chopra stated the proposed “rule would crack down on one avenue for regulatory arbitrage by ensuring large technology firms and other nonbank payments companies are subjected to appropriate oversight.” (Consumer Financial Protection Bureau). This article examines the need for and the positive effects of this proposed rule, as well as the potential dangers.

Several prominent news organizations, including The New York Times, The Intercept, Raw Story, and Alternet, have filed lawsuits against OpenAI, an artificial intelligence research organization. (Yiwen Lu, The New York Times)​​. The lawsuits allege that OpenAI used their journalists’ copyrighted content to train its artificial intelligence (“AI”) system, ChatGPT, without proper authorization or accurate citation. Id. They allege that OpenAI unlawfully used their copyrighted content to train its AI system, ChatGPT, violating the Digital Millennium Copyright Act (“DMCA”), which prohibits the “removal of information like author and title from protected works” thereby infringing upon their copyrights. Id.(Cade Metz, et al. & Katie Robertson, The New York Times). As a result of the training, ChatGPT can potentially produce similar content to the copyrighted material which would be grounds for a DMCA violation. Id. This article describes how OpenAI has responded to these lawsuits, how OpenAI has responded to news organizations’ claims, other stakeholders suing AI platforms, and possible outcomes of the lawsuits.

On August 23, 2023, the Securities and Exchange Commission (“SEC”) adopted New Rules under the Investment Advisers Act for private fund advisers to increase investor protection, transparency, and oversight. (Securities and Exchange Commission). The New Rules apply to all private fund advisers and restrict activities that are contrary to the public interest, while increasing the visibility of practices that could harm investors. Id. Under the New Rules, all private fund advisers are subject to the Restricted Activities Rule and the Preferential Treatment Rule. Id. While the New Rules are poised to protect investors, opponents argue the cost of compliance will negatively affect private fund advisers and stifle entrepreneurialism. (O’Melveny). This article reviews the New Rules, the arguments for and against the New Rules, and the potential impact they will have on private fund advisers moving forward.

The U.S. grocery industry witnessed a significant development with the proposed merger of two of its largest players: Kroger and Albertsons. Announced in October 2022, this merger aims to create a powerhouse capable of competing with giants like Walmart and Amazon. (Phil Lempert, Forbes). However, the Federal Trade Commission (“FTC”) pursued legal action to block Kroger's bid for Albertsons, citing concerns over potential harm to competition, which could lead to higher prices and lower wages. (Georgetown University). This article explores the FTC's challenge to the Kroger-Albertsons merger, detailing the FTC's competition concerns, Kroger’s perspective on the matter, strategic store divestitures, and the potential effects on the grocery industry and consumers.

Do the new SPAC regulations mean the end of SPAC IPOs? It sure seems that way. Earlier this year, the United States Securities and Exchange Commission (“SEC”) adopted new regulations to enhance disclosures and provide additional investor protections in initial public offerings (“IPO”) by Special Purpose Acquisition Companies (“SPAC”) and in subsequent business combination transactions between SPACs and target companies (“de-SPAC transactions”). (SEC; U.S. National Archives and Records Administration: Federal Register). The new SPAC regulations, which will go into effect on July 1, 2024, are designed to close many of the loopholes that allowed companies to “go public” through SPAC and de-SPAC transactions without the time, cost, and reporting requirements of traditional IPOs. (SEC; Brian Breheny et al., Skadden, Arps, Slate, Meagher & Flom LLP). This article provides a high-level overview of what led to the SPAC craze from 2019-2022, why the SEC adopted new SPAC regulations, and a prediction on the future of SPACs.

In 2023, the threat of cyberattacks continued to escalate. (Kim Nash, Wall Street Journal). Reports of cyberattacks, such as the cyberattack on Cisco IOS XE devices, dominated the news cycle. (Kyle Alspach, CRN). In response, the Securities and Exchange Commission (“SEC”) implemented new regulations which heightened disclosure requirements for corporate cybercrime risk management. (James Rundle, Wall Street Journal). As of December 15, 2023, the SEC is requiring companies to disclose management of cyber risk in their annual reports, also known as 10-Ks. Id. Additionally, companies must report significant cyberattacks to the SEC in a Form 8-K within four calendar days of discovering a “material” cyberattack. (James Rundle, Wall Street Journal). Federal case law has defined “material” as any potential harm that has a “substantial likelihood” that an investor thinks would have “significantly altered” the information made available. (Kate Azevedo, Bloomberg Law).  Ultimately, the SEC’s new requirements for company disclosures on cybersecurity represent an outstanding strategy to enhance companies’ awareness and readiness against cybercrime.

In a financial world where every move seems to echo with the clink of coins and the rustle of bills, a seismic shift has rocked the securities market. On February 6, 2024, the U.S. Securities and Exchange Commission (“SEC”) adopted two new rules with a 3-2 vote along party lines. (SEC; Sidley). These rules aim to further define what it means to be a “dealer” and “government securities dealer” under the Securities Exchange Act of 1934. Id. The regulatory scheme requires implicated market participants to register with the SEC as “dealers” and conform to various regulatory requirements. Id. Despite the SEC’s good-faith attempt to curtail de facto market makers and promote fairness among market participants, the new rules have been met with harsh criticisms due to their various impracticalities. (Fluhr, et al., DLA Piper; SEC).

In 2023 alone, the U.S. Securities and Exchange Commission (“SEC”) has pursued investigations of insider trading involving over sixty parties. (SEC Division of Enforcement Summary). Despite the growth of insider trading prosecution, the rules for insider trading and conflicts of interest remain only loosely enforced for members of Congress (Alicia Parlapiano et al., New York Times). This is problematic because members of Congress are routinely exposed to nonpublic information that can impact stock prices. (Id.). In fact, their trading activities as a whole remain largely unchecked as the existing framework to enforce insider trading and conflicts of interest in Congress is ineffective. (DeChalus et. al., Business Insider) In response, several bills were introduced in the Senate and the House of Representatives. (Congress.gov).  Seventeen different bills were introduced in 2023, and one has already been introduced in 2024. Id. The most comprehensive and notable bills were introduced by Senator Kristin Gillibrand and Representative Katie Porter. (S. 2463, H.R. 6842). These bills (the “Bills”) seek to enhance the “trading bans and disclosure requirements for Congress, senior executive branch officials, and their spouses and dependents.” (S. 2463) Like the numerous other bills introduced in the past few years, the Bills are in the early phases and face an uphill battle to adoption. (Congress.gov).

Executive branch administrative agencies in the U.S. are facing increasing scrutiny and opposition. The U.S. Supreme Court is currently grappling with constitutional challenges to administrative agencies powers and procedures through landmark cases Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. May 1, 2023) and SEC v. Jarkesy, No. 22-859 (U.S. Oct. 30, 2023). These cases reflect the ongoing debates regarding the scope and limits of administrative power in the U.S. This article delves into the cases of Loper Bright and Jarkesy and illustrates how challenges to the current power exercised by administrative agencies may impact the regulatory landscape for public companies, the Securities and Exchange Commission (“SEC”), and market integrity.  

On January 10, 2024, the SEC approved the listing and trading of several spot bitcoin exchange-traded products (“ETP”), a type of ETF. (SEC). The SEC approved Grayscale’s spot bitcoin ETF application, along with ten others, including BlackRock and Fidelity applications. (Mark Maurer, The Wall Street Journal; Crystal Kim, Axios). The SEC’s approval came one day after an unauthorized individual posted a fraudulent message on the Commission’s social media account on X, formerly known as Twitter, falsely claiming that the agency had approved the products to be traded. (Hannah Lang, et al., Reuters). The SEC quickly removed the misleading post. Id. Regardless, the SEC’s decision was in response to the D.C. Court of Appeals decision. (SEC). The Appellate Court vacated its decision and remanded the matter to the SEC to decide whether to approve Grayscale’s spot bitcoin ETF application. Id. The Commission ultimately decided to approve the listing and trading of Grayscale’s spot bitcoin ETF, citing various reasons. Id.

The de minimis exemption, a trade rule nearly a century old, has significantly reshaped the retail landscape, granting foreign e-commerce giants like Shein and Temu a significant advantage over American retailers. (Jordyn Holman, The New York Times). The de minimis exemption is fueling rapid growth for these companies by allowing low-cost packages to enter the U.S. duty-free. (Yuka Hayashi et. al, The Wall Street Journal). However, the rule also raises pressing concerns regarding unfair competition, labor practices, sustainability, and the impact on U.S. tax revenues and product safety. This article explores the de minimis exemption, its role in the exponential growth of retailers such as Shein and Temu, the various concerns it presents for U.S. consumers and the U.S. government, and the potential impact of this exemption on the future of the retail industry.

As the spotlight on climate change intensifies, federal agencies, including the U.S. Securities and Exchange Commission (“SEC”) and the European Commission in the European Union (“EU”), are grappling with the environmental impacts generated by companies. The SEC, traditionally tasked with creating and enforcing policies around the investment of money, has added financial climate change consequences to its list of responsibilities. (SEC). Most recently, the SEC has doled out a new proposed climate disclosure rule, intended to create consistent reporting guidelines for publicly traded companies, curb corporate greenwashing, and protect investors. (Jessica Corso, Law360; Michael Copley, NPR; SEC). While many consider the SEC’s attempt to combat climate change admirable and well-intended, opponents to the proposed rule express concerns about its impact on farmers and small businesses. (Jim Tyson, CFO Dive). 

The Department of Justice (“DOJ”) announced a new safe harbor policy for mergers and acquisitions, and companies are grappling with the potential benefits and pitfalls of utilizing the policy. The policy is a product of the DOJ’s focus on corporate criminal enforcement, as national security-related corporate crime has doubled from last year to this year. As highlighted by Deputy Attorney General Lisa Monaco, corporate crime intersects with “national security in everything from terrorist financing, sanctions evasion, and the circumvention of export control, to cyber-and crypto-crime.” (Lisa Monaco, U.S. Department of Justice). The DOJ has identified mergers and acquisitions as a source of access to corporate crime that threatens national security. Through this policy, the DOJ is hoping to create a “virtuous cycle” of acquiring companies identifying and reporting potential crimes committed by the  target companies during the due diligence stage, thereby assisting the DOJ in identifying and prosecuting individuals. Id. This cooperation spares the target company from prosecution as long as the acquiring company pays back any ill-gotten funds. Id. In exchange for their whistleblowing efforts, acquiring companies are protected from prosecution, provided they follow additional requirements. This post will examine the concerns and risks acquiring companies utilizing the safe harbor policy face.

On January 1, 2024, the Corporate Transparency Act (“CTA”) came into effect, changing our perception of a “corporation” as we know it. In particular, the CTA targets small businesses with no employees, and aims to “combat money laundering, tax fraud, and other illicit activities”. (Thomas Reuters). However, the CTA’s regulatory powers remain broad, requiring all reporting companies to submit a beneficial owner report. Id. A reporting company includes all entities “that are formed or registered to do business in the United States.” (BakerHostetler). The report will include the beneficial owner’s “name, date of birth, address, and unique identifier number from a recognized issuing jurisdiction and a photo of that document.” (Thomas Reuters). A beneficial owner is classified as one that either: (1) maintains significant control over the reported company, or (2) has a 25% equity ownership interest in the reporting company. Id. Under this criterion, over 27 million small businesses fall within the regulatory scope of the CTA. Id. This does not include the 23 types of entities that are exempt from the CTA because they are already regulated under different federal and state laws. (Nicholas McMichen, DeWitt; Sandra Feldman, Wolters Kluwer). This article analyzes the objectives of the CTA, specifically how it arose, along with the implications it has for the effected parties. 

On October 1, 2023, Robert F. Kennedy, Jr. (“RFK”) announced a new economic plan as part of his presidential campaign, featuring a guaranteed government-backed mortgage at 3%. (Carlson, The Hill). RFK’s government-backed mortgage plan (the “Plan”) is intended to incentivize working-class Americans to buy more homes. (https://www.kennedy24.com/help-buying-homes-video). The Plan achieves this goal by providing low interest rates, which would be appealing to working-class citizens. Id. The overall issue that RFK is aiming to address with his Plan is to stop the current takeover of the housing market by investment companies and the consequent increasing housing prices. Id. This post discusses the potential conflict that RFK’s Plan could have with existing government-backed mortgages provided by government agencies, the Federal Trade Commission’s (“FTC”) mortgage regulations, and possible economic consequences on the housing and mortgage markets.

With a market cap valued at over a staggering $1 trillion, cryptocurrency’s (or “crypto(s)”) exponential market growth has led to a hotly debated, new-found regulatory force by the U.S. Securities and Exchange Commission (“SEC”). (Forbes). The SEC’s eager regulatory control over crypto has fueled legal battles, with the most recent development involving investors advocating for bitcoin exchange-traded funds (“ETF(s)”). (Aislinn Keely, Law360). The Commission has historically resisted investor’s efforts. (Hannah Lang, et al., Reuters). However, a recent District of Columbia Court of Appeals decision, dubbed a victory for plaintiff and digital asset management company Grayscale Investments (“Grayscale”), has proven hopeful to investors. Id. This post explores the Grayscale decision, the SEC’s and Grayscale’s respective arguments, and both the narrow and broad implications of the decision against the backdrop of the SEC’s position on cryptocurrency.  

The Federal Aviation Administration (“FAA”) recently proposed a rule change that, if passed, would likely put airlines like JSX out of business. (Regulations.GOV; Alison Sider, The Wall Street Journal). JSX is a Dallas-based airline founded in 2016, which operates regularly-scheduled flights using a fleet of 30-seat aircraft that provides a premium flying experience to the general public. (JSX). JSX does this by operating “semi-private” flights out of private terminals that provide flyers with easy access parking, no lines, no-hassle security, and a flexible pet policy. (JSX; Gary Leff, View From The Wing). Additionally, because JSX operates from private terminals, it can fly to destinations that other airlines cannot, such as Taos, New Mexico. Id.

The largest mass tort litigation in U.S. history has come to an end. On August 29, 2023, 3M, a company specializing in the manufacturing and distribution of industrial, safety, and consumer products, reached a $6 billion settlement, resolving hundreds of thousands of lawsuits filed by U.S. military service members (the “Plaintiffs”). The Plaintiffs claimed that they suffered hearing loss from the use of 3M’s earplugs. (Brendan Pierson, Reuters). The settlement followed 3M's failed attempt to limit its liability through a controversial legal maneuver known as the “Texas Two-Step.” Id. This article explores 3M’s legal battle, specifically its unsuccessful Texas Two-Step, and the potential impact from the failed maneuver on future corporate liability.

Under the leadership of Chair Lina Khan, the Federal Trade Commission (“FTC”) has taken an “aggressive” approach on challenging monopolies, especially in the healthcare industry. (Caitlin McCabe et al., WSJ). Echoing the FTC's recent approach to antitrust enforcement, the agency launched a civil suit on September 21, 2023, against U.S. Anesthesia Partners, Inc. (“USAP”) and private equity (“PE”) firm Welsh, Carson, Anderson & Stowe (“Welsh Carson”). (Megan McArdle, Washington Post; FTC). The FTC alleges that USAP and Welsh Carson engaged in an “anticompetitive scheme to consolidate anesthesiology practices in Texas.” Id. This lawsuit has ignited a firestorm of controversy, raising questions about fair competition and the future of the healthcare industry.

In August of 2020, Apple removed Fortnite, a popular game created by Epic Games (“Epic”), from the Apple App Store. (Perez, Techcrunch). Apple removed Fortnite the same day Epic began offering discounts to Fortnite users who made in-game purchases directly through Epic. (Browning, N.Y. Times). Apple has an “anti-steering” policy, which prohibits companies from directing app users to transact directly with the app developers and cutting out Apple as the middleman. Id. Epic’s practice violated the anti-steering policy and another Apple policy requiring that all “in-app” purchases be made through the Apple App Store where Apple collects a 30% fee. (Gilbert, Businessinsider). This policy has paid major dividends for Apple as the Apple App Store provides a significant portion of the company’s $78.1 billion in services revenue in 2022. (Leswing, CNBC).

As a result, on August 13, 2020, Epic sued Apple in federal court in the Northern District of California bringing a variety of claims including federal antitrust claims under the Sherman Act, California antitrust claims, and claims under California’s Unfair Competition Law. Epic Games, Inc. v. Apple Inc., 559 F. Supp. 3d 898, 1014 (N.D. Cal. 2021), aff'd in part, rev'd in part and remanded, 67 F.4th 946 (9th Cir. 2023).

In 2022, the Biden-Harris Administration announced plans to forgive up to $400B in student loans (“forgiveness plan”). (Amy Howe, SCOTUSblog). The Supreme Court struck the plan down in a 6-3 vote, ruling that the Biden-Harris Administration had exceeded its authority. Id. In response, the Administration has posited a new tactic to help student loan borrowers: the Savings on a Valuable Education Plan (“SAVE Plan”). This article analyzes the SAVE Plan, including key details and potential issues, as well as the positive impact it will have on future generations of college applicants.

From generating basic JavaScript code to creating a 7-day European trip itinerary, ChatGPT and other artificial intelligence (“AI”) programs are a one-stop shop for many internet users. Businesses from a wide array of industries have tapped into the countless uses of AI, revolutionizing the workforce as we know it. (Serenity Gibbons et al., Forbes). Within two months of ChatGPT’s November 2022 launch, it became the “fastest-growing consumer application in history.” (Krystal Hu, Reuters). The impressive growth of AI has fueled concerns over this ever-changing technology – including data privacy and the spread of misinformation.  (David Grier, IEEE Computer Society). In response to these concerns, the Federal Trade Commission (“FTC”) is investigating OpenAI, the maker of ChatGPT, as to whether OpenAI violates consumer protection laws. (Cat Zakrzewski, Washington Post). The FTC investigation highlights the need for effective AI regulation and has sparked a nationwide discussion amongst lawmakers, employers, employees, AI companies, and other stakeholders involved in this AI arms race. (Andrew Chow et al., TIME).  

San Francisco’s Anchor Brewing Company (“Anchor”, “Anchor Brewing”), the oldest craft brewer in the United States, has withstood many hardships, and until now, has been a survivor. (Ansari and Otis, The Wall Street Journal). Over the past 127 years, the brewery has survived catastrophic earthquakes, the national prohibition of alcohol, two world wars, and competition from mass-produced beers. (Albeck-Ripka, The New York Times; Anchor Brewing). Despite a history of resilience, Anchor Brewing recently announced ‘last call’ on July 12, 2023. Due to its inability to recover from the consequences of the pandemic and the failure on its parent company, Japan’s Sapporo, to profitably run the craft brewer, Anchor Brewing Company has been forced to close its doors. (Albeck-Ripka, The New York Times).

On Friday, March 10, 2023, Signature Bank lost 20% of its deposits. (Vivian Giang & Mike Dang, The New York Times; Max Reyes, Bloomberg). Two days later, on Sunday, March 12, 2023, Signature Bank failed and went into receivership. (Vivian Giang & Mike Dang, The New York Times). Signature Bank’s failure was unexpected, so much so that it’s only the second time in over a decade that the Federal Deposit Insurance Corporation (“FDIC”) created a bridge bank in response to a bank failure. (Federal Deposit Insurance Corporation). How and why did Signature Bank fail so quickly? Are more U.S. Banks next? These answers and more, but first, it’s helpful to understand what happens immediately after a bank fails.