On Monday, the U.S. District Court for the District of Massachusetts struck down the freeze on federal permits for wind energy projects — a central component of the Wind Presidential Memorandum (the Wind Order) issued on the first day of the current administration. Judge Patti Saris’s opinion held that the Wind Order is arbitrary and capricious and contrary to law under the Administrative Procedure Act (APA), and directed that it be vacated in full — meaning the ruling applies nationally. The decision was previewed in the court’s preliminary order in July indicating that the Wind Order was on shaky legal ground, citing a lack of administrative record to support the Wind Order and precedent from cases involving analogous moratoriums for offshore oil and gas. Despite the major win for wind, though, there is still significant uncertainty regarding how this administration will respond to the ruling and how it will affect wind energy permitting going forward.
Seventeen states, the District of Columbia, and ACE-NY, a New York-based renewable energy trade association, initially filed for a preliminary injunction against the Wind Order on May 5. The judge initially assigned to the case, William G. Young, converted the case to an expedited merits proceeding and ruled in early July that the states and ACE-NY had standing to sue and that the Wind Order constituted a final agency action ripe for challenge under the APA. After some delay, the case was reassigned to Judge Saris in early November; acknowledging the importance of the case in her initial hearing, she moved quickly to rule on the merits.
After affirming Judge Young’s rulings regarding standing and final agency action (and slapping down the government’s arguments as “tilting at windmills”), Judge Saris held decisively that the Wind Order was arbitrary and capricious on several grounds. She first spent significant time explaining why recent Supreme Court precedent did not allow agencies to duck APA review simply by saying they were following presidential instructions, in an apparent effort to insulate her opinion from potential high court reversal. Then, noting the “sparsity” of the administrative record, she held that that the government had failed to adequately articulate its change in position from prior administrations’ policy of making decisions on wind energy projects — observing that “[w]hatever level of explanation is required when deviating from longstanding agency practice, this is not it.” In so ruling, Judge Saris cited repeatedly to several recent cases arising from Louisiana federal courts that struck down Democratic administrations’ efforts to pause permitting and leasing for oil and gas production and transportation infrastructure.
Judge Saris also held that the government had “failed to account for reliance interests engendered by their previous policy of adjudicating wind permit applications.” Finally, she ruled that the government had violated Sections 555(b) and 558(c) of the APA, which require agencies to make decisions “within a reasonable time.” In so doing, she held that the Wind Order could not be saved simply by instructing agencies to implement it “consistent with applicable law,” and stated that “[t]he proof is in the pudding: No permits have issued since the Wind Order was promulgated[.]”
Judge Saris’s vacatur of the Wind Order is expressly intended to apply to all wind energy projects irrespective of geographic location; the opinion noted that the Supreme Court’s bar on nationwide injunctions in Trump v. CASA, Inc. does not affect remedies in APA challenges. It is expected that an upcoming December 15 status conference will provide more detail on the scope of the final judgment and remedy.
It is unclear at this point what real-world effects this ruling will have for renewable energy permitting. Since the Wind Order was first issued, this administration has issued numerous directives aimed at hindering not just wind but also solar projects, as well as ramping up targeted enforcement against wind projects. As most of these orders do not rely on the Wind Order, Judge Saris’s ruling is not expected to directly affect them.
For questions or to discuss the impacts of this and other renewable energy permitting developments, contact Troutman Pepper Locke’s Environment + Natural Resources Practice Group attorneys.
The U.S. Department of Justice (DOJ) recently announced a $421,234 settlement with Swiss Automation Inc. to resolve alleged False Claims Act (FCA) violations related to its failure to provide adequate cybersecurity for technical drawings of parts supplied to Department of Defense (DoD) contractors. This settlement resolves a qui tam action filed under the whistleblower provisions of the FCA in the Northern District of Illinois. (United States ex rel. Gomez v. Swiss Automation Inc., No. 1:22-cv-4328 (N.D. Ill.))
Swiss Automation Inc. is an Illinois-based machining business that supplies alloy and metal parts to commercial and government customers in various industries. The company allegedly failed to provide adequate security by implementing cybersecurity controls specified in the Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, causing the submission of false claims for payment. These cybersecurity controls are intended to protect certain DoD information and have applied to DoD contracts, subcontracts, and similar contractual instruments since 2017. Such control obligations will continue under the recently finalized Cybersecurity Maturity Model Certification (CMMC) program, which assesses defense contractor compliance with existing information safeguarding requirements for federal contract information and controlled unclassified information.
The settlement agreement is neither an admission of liability by Swiss Automation, nor a concession that the United States’ claims are not well founded. This recent action underscores the DOJ’s heightened focus on violations of federal cybersecurity laws and regulations in light of increased cybersecurity threats, particularly those targeting government contractors. As these threats evolve, “suppliers to defense contractors must be vigilant and take the steps required to protect sensitive government information from bad actors,” according to DOJ Assistant Attorney General Brett A. Shumate.
Key Takeaways:
- DOJ is investing significant resources into holding government contractors, subcontractors, and suppliers accountable for their cybersecurity obligations to DoD.
- The DFARS control requirements have applied since 2017 and will continue under the finalized CMMC program, which will assess and verify contractor compliance for protecting federal contract information and controlled unclassified information.
- Inadequate cybersecurity controls can trigger FCA exposure.
Companies operating in the relevant sectors should anticipate increased scrutiny and enforcement actions related to cybersecurity regulation. Businesses with government contracts are encouraged to review their compliance programs and ensure that robust measures are in place to safeguard federal contract information, assess potential risks, and comply with all applicable controls and federal regulations to prevent cybersecurity violations.
Troutman Pepper Locke is monitoring the DOJ’s evolving trends and priorities closely. If you have questions about how these priorities may impact your business or wish to begin evaluating your existing compliance procedures, please contact a member of our White Collar Litigation + Investigations team or our Privacy + Cyber group.
A major U.S.-based importer recently filed suit in the U.S. Court of International Trade (CIT) to preserve its ability to recover tariffs imposed under the International Emergency Economic Powers Act (IEEPA) that it has already paid. The suit does not just ask that the underlying IEEPA tariffs be declared unlawful; it asks the court to: (1) prevent U.S. Customs and Border Protection (CBP) from “liquidating” affected entries while the litigation is unresolved; and (2) preserve the importer’s path to a refund if the Supreme Court of the United States (SCOTUS) later holds the tariffs unlawful. The filing highlights a practical and time-sensitive problem: if CBP finalizes (liquidates) an entry and the importer fails to timely protest, the importer can lose the administrative and judicial routes to recover duties paid, including tariffs implemented pursuant to IEEPA. The move highlights a growing and time-sensitive concern across industry sectors: even if tariffs are struck down, recovery of duties already paid is not guaranteed unless companies take affirmative procedural steps now. Dozens of similar protective suits are expected to follow as parties race to protect refund rights ahead of liquidation deadlines.
Why This Case Matters Now
The CIT action is not solely a challenge to whether IEEPA authorizes the tariff regime — that question is already before the SCOTUS. Rather, it is a procedural fight over whether importers can be divested of refund rights through CBP’s liquidation process before the courts determine the underlying legality. To put it differently, the suit exists to keep the door open long enough for importers to collect refunds if the tariffs fall.
The Importer’s Litigation Theory
The plaintiff alleges that CBP’s upcoming liquidations of some of its entries will extinguish its ability to obtain potential refunds because liquidation triggers rigid administrative deadlines. To avoid that outcome, the importer seeks injunctive and declaratory relief directing CBP to delay liquidation or treat entries in a manner that preserves refund access until the courts resolve the dispute around the constitutionality of IEEPA tariffs. This litigation is emerging as a necessary tool to prevent refund rights from being cut off by calendar mechanics rather than case merits.
Understanding the Liquidation Process
Pursuant to 19 C.F.R. Part 159 and 19 U.S.C. § 1504, liquidation is the administrative act by which CBP finalizes duty calculations for an entry. Under typical processing timelines, entries liquidate approximately 314 days after arrival. Until liquidation, importers have broad flexibility: they may file Post-Summary Corrections (PSCs), seek extensions of the one-year liquidation period, or adjust claims (e.g., if the tariff authority falters or the importer has made a mistake). The 314-day period is not a specific statutory requirement, but rather the typical, operational timeframe within which CBP aims to liquidate most entries. The actual statutory deadline is one year from the date of entry, as established by 19 U.S.C. § 1504(a).
Once liquidation occurs, however, the decision becomes final and conclusive, subject only to narrow time-bound remedies. PSCs disappear as an option, and the only ordinary remedy becomes the filing of a protest pursuant to 19 C.F.R. Part 174 and 19 U.S.C. § 1514, within 180 days of liquidation. If the protest is denied, importers must file suit in the CIT within 180 days of that denial. A protest is a formal administrative challenge filed on CBP Form 19 that asks CBP to review and reverse its liquidation decision by asserting special factual or legal grounds for refund or reclassification under 19 C.F.R. Part 174. If no protest is filed within 180 days, or if deadlines lapse, refund prospects collapse into limited, discretionary, or impractical avenues, such as CBP’s voluntary reliquidation within the first 90 days after liquidation or litigation claiming “void” liquidations in rare circumstances. These residual avenues are unreliable and cannot support large-scale refund recovery. Thus, liquidation operates as the cliff edge — once crossed without a protest, the legal system treats duty collections as administratively final regardless of the lawfulness of the underlying tariff.
Applying the Calendar: Why the First Deadlines Are Imminent
The first IEEPA tariff took effect February 4, 2025. Applying standard processing cycles:
- Approximately 314-day liquidation period → first entries will begin liquidating around December 15, 2025.
- 180-day protest period → protests for those entries must be filed on or about June 13, 2026.
This means the first wave of entries subject to litigation risk will begin liquidating before the SCOTUS rules — and long before refund implementation can occur. The CIT suit is therefore strategic: it seeks to ensure that entries do not quietly liquidate and expire while the courts deliberate the legality of the tariffs.
Existing SCOTUS IEEPA Tariff Case
As we discussed in our prior alerts (here and here), the underlying legality of the tariffs issued by the Trump administration pursuant to IEEPA is already before the SCOTUS, and a decision from the Court is expected before the end of the year or early next year. If the SCOTUS holds that IEEPA did not authorize tariffs of this breadth, the legal theory for refunds strengthens. But even a favorable SCOTUS ruling may not automatically produce refunds for particular importers — importers need preserved administrative or judicial claims to compel reliquidation and refund for specific entries. That gap between a merits ruling and practical recovery is the problem the recent CIT suit seeks to close.
Legal Precedent
Courts have, at times, ordered refunds or remanded for refund proceedings after invalidating tax or tariff authority, including in challenges to unconstitutional export taxes and malformed trade duties. But outcomes turn on statutory procedure: in customs matters, recovery often hinges on whether importers preserved claims through the required administrative steps. Prior tariff disputes illustrate the mixed results — some litigants secured reliquidation or refund remands, while others were denied relief because they did not meet preservation requirements. In United States v. U.S. Shoe Corp., 523 U.S. 360 (1998), the SCOTUS held that the Harbor Maintenance Tax, as applied to exports under 26 U.S.C. §§ 4461–4462, violated the Constitution’s Export Clause because it functioned as a tax rather than a true user fee; after that merits win, refunds were available, but exporters’ recovery depended on following the prescribed procedural paths, including timely claims. The practical takeaway is that winning the merits is not the same as getting money back; even a favorable SCOTUS ruling will likely leave remedial questions to the CIT and CBP, and importers must have timely protests or other preserved claims to convert a legal victory into actual refunds.
Lawsuit Strategic Significance
- Timing and Preservation of Rights. Liquidation deadlines are ticking. If CBP liquidates entries before importers take proper steps (PSCs, protest, litigation), importers risk waiving rights to refunds even if the tariffs are later invalidated. The suit attempts to protect those rights now.
- Remedial Test Case. Even if the SCOTUS rules in favor of petitioners on the merits, the remedial question — how refunds will be processed and whether courts must order reliquidation/refunds for particular importers — will be litigated. The CIT case could become the vehicle to resolve those remedial questions.
- Broad Consequences for the Market. If courts are reluctant or constrained in ordering large-scale refunds (for practical or statutory reasons), importers may face strange results: tariffs struck down but no easy path to recover amounts already paid unless they preserved and litigated their claims. That risk explains the surge in filings.
Impact to Importers
Large importers with resources are filing protective litigation or pressing CBP for liquidation extensions; they are tracking entries and making targeted administrative filings to preserve rights. Smaller importers may face harder choices: they may not be able or willing to litigate in the CIT, yet they risk losing refund rights if they fail to track and protest liquidations. The administrative tools (PSC, protest, or extension requests) remain available but require timely action and administrative resources. Either way, failure to act within these deadlines significantly diminishes refund prospects.
Key Uncertainties to Watch
- Will the SCOTUS rule for the petitioners on the merits? If yes, will it direct refunds generally or leave relief to the courts and/or CBP to implement? The oral argument indicated skepticism from some justices as to the lawfulness of these tariffs, but a final vote is required.
- Will CBP agree to systemic reliquidation/refund procedures if the tariffs are invalidated? CBP has issued no formal guidance and remains silent on whether it will implement a systemic reliquidation‑and‑refund process if the IEEPA tariffs are ultimately invalidated. In informal discussions, CBP has indicated that its current guidance is not to extend liquidation periods pending the outcome of the SCOTUS and CIT cases. Instead, CBP urges importers to continue paying IEEPA tariffs and file protests, which CBP will hold in abeyance until the courts rule. Although the CIT possesses authority to order retroactive refunds (including for already‑liquidated entries) and precedent requires the government to return unlawfully collected duties, both the U.S. Court of Appeals for the Federal Circuit and SCOTUS have repeatedly cautioned that such relief is not automatic, may be limited to named plaintiffs or require individual administrative claims, and could be restricted to prospective effect — leaving importers with substantial litigation and timing risk in recovering the estimated $210 billion in duties already paid.
- Will courts uniformly permit wide remedial relief (orders of large-scale reliquidation), or will relief be limited to specific, litigating importers? That remedial question is the principal reason for the protective CIT filings now.
Conclusion
The single most important theme is preserve, preserve, preserve — both administrative and judicial claims now. The first liquidation wave begins December 15, 2025, with protest deadlines closing June 13, 2026. If your business paid IEEPA tariffs, review affected entries immediately to implement a preservation strategy. Because the remedy is time-sensitive and procedure-governed, doing nothing risks forfeiting recovery even if the IEEPA tariffs are later declared unlawful.
Troutman Pepper Locke has a dedicated Tariff + Trade Task Force to aid our clients in navigating and anticipating the impacts that evolving tariffs have on their businesses. As your business develops strategies to mitigate continued tariff uncertainty, the Troutman Pepper Locke Tariff + Trade Task Force are here to help guide you through the process.
The U.S. Court of Appeals for the First Circuit has weighed in on Omni Healthcare, Inc.’s (Omni) False Claims Act (FCA) allegations against MD Labs, issuing a decisive win for the defendant. On December 1, 2025, a unanimous First Circuit panel held there was insufficient evidence to find that MD Labs “knowingly” submitted false Medicare claims, thereby affirming the Massachusetts district court’s decision granting motion for summary judgment for MD Labs. U.S. ex rel. Omni Healthcare Inc. v. MD Spine Solutions, LLC, et al, Case No. 25-110 (1st Cir. 2025). The First Circuit (in a matter of first impression) held that in FCA cases alleging Medicare fraud based on laboratory testing, a laboratory may rely on a doctor’s order to show that tests are “reasonable and necessary” (as required by the Medicare Act). Id. The burden then shifts to the FCA claimant to rebut this showing. Id. The First Circuit agreed with the district court in concluding that Omni failed to present any evidence through which a reasonable jury could find that MD Labs knowingly submitted false Medicare claims.
Between 2017 and 2019, Omni sent MD Labs samples for UTI testing. MD Labs ran the tests and reported the results, and Medicare reimbursed MD Labs for a portion of the tests. Omni’s owner instructed medical assistants to order only newer, more expensive testing from MD Labs, even if the provider had requested the older, less expensive testing to beef up a Medicare fraud case against MD Labs (UTI test claims). Omni, a frequent flyer in the qui tam world, sued MD Labs on behalf of the government for a host of claims, including Medicare fraud under the FCA. Omni claimed that the more expensive tests were medically unnecessary, and thus MD Labs, in recouping payments for these tests, submitted claims that did not comply with Medicare’s “reasonable and necessary” standard, thus “knowingly” submitting false claims. The U.S. intervened in part, but declined to intervene on Omni’s claims relating to the UTI test claims. MD Labs settled with the government and Omni to resolve the intervened claims. As part of the settlement, Omni retained the right to pursue the claims against MD Labs about unnecessary test submissions. Omni’s UTI test claims continued, and in January 2025, the court granted summary judgment to MD Labs, finding that MD Labs and its employees did not know that the laboratory was performing medically unnecessary tests. Omni Healthcare, Inc. v. MD Spine Sols. LLC, 761 F. Supp. 3d 356, 370-71 (D. Mass. 2025). MD Labs then moved for an award of attorneys’ fees incurred defending against those claims.
In September 2025, Judge Saris granted MD Labs’ motion for attorneys’ fees in a rare fee-shifting ruling. Omni Healthcare, Inc. v. MD Spine Sols. LLC, No. 18-cv-12558-PBS, 2025 U.S. Dist. LEXIS 173361 (D. Mass. Sept. 5, 2025).The court found that Omni “misused [its] statutory privilege and distorted the intent” of the FCA. Judge Saris agreed with MD Labs’ allegation that Omni knowingly manufactured false claims solely to substantiate a qui tam action and found Omni’s conduct was “extremely troubling.” Dkt. 286 at 1; Omni Healthcare, Inc. v. MD Spine Sols. LLC, 761 F. Supp. 3d at 360, 369. While the FCA provides financial incentives to encourage potential relators to expose fraud, it “does not prioritize this aim at all costs,” Judge Saris ruled. Now that the First Circuit has affirmed the summary judgment decision, a fee award determination is likely forthcoming, thus ending this saga.
The FCA allows defendants to receive reasonable attorneys’ fees and expenses if the defendant prevails and if “the court finds that the claim of the [Relator] was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.” 31 U.S.C. § 3730(d)(4). To prevail on a motion seeking attorneys’ fees under § 3730(d)(4), a defendant “must demonstrate that the plaintiff has misused his statutory privilege and distorted to the intent of the legislature.” U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1058 n.22 (10th Cir. 2004).
This ruling against a relator stands in notable contrast to communications and actions by the Department of Justice (DOJ) in recent months, which seek to expand the scope and impact of the FCA. See, e.g.,The False Claims Act Enters the School Zone; Recent DOJ Intervention Highlights FCA Use Against Customs Fraud.
This case shows that while the power of the FCA is alive (and growing), the statutory boundaries of relator conduct will still be enforced, particularly in cases where the relators themselves contribute to and cause the fraudulent conduct.
When you think of intellectual property, what comes to mind? Most likely, it is some combination of patents, trademarks, copyrights, and trade secrets. But what if there were a fifth category of intellectual property you may not have heard of before? You may have been using it without realizing it, and it may provide protection for your copyrights. If the title of this article didn’t give it away, we are talking about copyright management information, or CMI, as it is commonly referred to.
What is CMI? Let’s discuss this in reverse order. Instead of starting with the legal definition, let’s review some real-world examples that help solidify the concept. Sound good?
Think of the last book you read. Was it a novel, a legal textbook, or perhaps a bedtime story for your children? Regardless of the answer, somewhere on that book is the “copyright notice.” You know, the tiny script that includes a “©” with the year of publication and the publisher’s name. That is CMI.
How about one more example? Now think about the last time you went to an amusement park and had your photo taken while on a roller coaster. At the end of the ride, you pass by a stand displaying your photo on a screen with a watermark in the middle of the image that offers to sell you a copy of your photo. Sure, you could take a picture of the screen with your phone, but the watermark would remain. That watermark may be a form of CMI.
So why is the “copyright notice” on the book or watermark on a photo included? Without knowing more about CMI, you would probably say it is to identify the copyright holder. But what about the watermark on the photo? You might say that the watermark is to identify who has the legal rights to the image. Both are correct and are subsumed in the definition of CMI.
CMI comes from the Digital Millennium Copyright Act (DMCA), which defines it broadly by listing eight specific categories of protected information conveyed in connection with copies of a work that effectively identify the work, author, or rights holder. 17 U.S.C. § 1202(c). These eight enumerated categories are:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
17 U.S.C. § 1202(c). In short, if information exists on a work that identifies the party with an interest in the work, that may be CMI.
Importantly, despite CMI being created by the DMCA, it “is not restricted to the context of ‘automated copyright protection or management systems.'” Murphy v. Millennium Radio Group LLC, 650 F.3d 295, 305 (3d Cir. 2011). Indeed, any cause of action under § 1202 of the DMCA may exist whenever the CMI is falsified or removed, “regardless of the form in which that information is conveyed.” Murphy v. Millennium Radio Group LLC, 650 F.3d 295, 305 (3d Cir. 2011).
Remember our example of the watermark on the photograph from the roller coaster, how can that be CMI if the photographer wasn’t able to get a federal registration by the time you viewed the photo at the booth? It is important to know that a copyright registration is not required for information to qualify as CMI or for that CMI to have protection under Section 1202 of the DMCA. While it may be true that the existence of a copyright registration is a prerequisite for an action for copyright infringement, claims under the DMCA for falsifying or removing CMI are separate and distinct from copyright infringement and require no such prerequisite registration. Med. Broad. Co. v. Flaiz, No. CIV.A. 02-8554, 2003 WL 22838094, at *3 (E.D. Pa. Nov. 25, 2003).
So why should you care about CMI? Well, aside from the general desire to protect your intellectual property, claims under the DMCA for falsifying or removing CMI can result in large damages awards. Specifically, Section 1203 of the DMCA indicates that a person violating Section 1202 is liable for either (A) the actual damages and any additional profits of the violator, or (B) statutory damages. 17 U.S.C. § 1202(c)(1). This may not seem that impressive, except for the fact that an award of statutory damages for violations of Section 1202 is based on a per violation calculation, as opposed to the per infringement framework of copyright infringement, “in the sum of not less than $2,500 or more than $25,000.” 17 U.S.C. § 1202(c)(3). Given that federal courts have consistently adopted a violation counting methodology that focuses on the accused’s conduct rather than the number of people affected by that conduct (i.e., an “each violative act” standard), it is not hard to see how a damages model can quickly multiply. For instance, let’s go back to our amusement park visitor. Assume the rider takes the photo, removes the watermark, and sends it to each of their three friends who are also in the photo. Then, the visitor posts the non-watermarked photo on three different social media platforms. Under the “each violative act” standard, our rider has just committed six violations in a short period of time and may now be faced with statutory damages of $150,000.
Let’s close this article in the same way we started. When you think of intellectual property, what comes to mind now?
David Kupetz, a partner in Troutman Pepper Locke’s Los Angeles office, authored the 2026 edition of the Collier Handbook for Creditors’ Committees published by LexisNexis.
The newest edition contains all the practical guidance and legal analysis members of a committee and committee counsel need for participation in the debtor’s reorganization, with forms, sample documents, and more. The handbook has been fully updated to reflect the latest changes in the law and contains the latest advice, analysis, and case law on all aspects of creditors’ committees in Chapter 11 cases, out-of-court workouts, Chapter 7 liquidation cases, and Chapter 9 municipal debt adjustment cases.
Read a portion of the handbook here and here for the full handbook (subscription required).
On December 1, 2025, the Department of Energy (DOE) publicly announced its decision to allocate up to $134 million in new funding to enhance domestic supply chains for rare earth elements (REEs).
REEs are 17 elements identified in the periodic table (lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, and lutetium). REEs are critical to national security and economic growth as they are used extensively in the production of batteries, magnets, electronics, and communications equipment.
This latest release of DOE funding will be disbursed via a nonprocurement award under the Notice of Funding Opportunity (NOFO) Rare Earth Elements Demonstration Facility (DE-FOA-0003587) issued by DOE’s Office of Critical Minerals and Energy Innovation (CMEI). DOE is requesting nonbinding letters of intent by December 10, 2025, although these are not mandatory for funding eligibility. Official applications are due to CMEI by January 5, 2026. DOE will host a webinar on December 9 at 1 p.m. ET, which will provide more information on this NOFO.
With this latest tranche of program funding, DOE is focused on projects capable of demonstrating commercially viable processes and methods to economically and efficiently extract REEs from unconventional sources, such as mine tailings, and various other industrial waste streams that are abundant in the U.S., but largely unutilized. This funding aims to (i) move proof-of-concept processes from pilot stage toward integrated, commercially scalable demonstrations; (ii) reduce reliance on foreign suppliers; and (iii) establish durable U.S. capacity from feedstock access through final REE product. This latest NOFO builds on DOE’s previously announced decision to allocate $355 million in project funding directed at developing domestic sources of critical minerals and critical materials (which we discussed in detail here), and this is the first NOFO issued by DOE’s newly created CMEI.
Applicant Eligibility
Eligible applicants for this NOFO are limited to academic institutions partnering with private entities (as subrecipients and/or subcontractors). Successful applicants, i.e., funding recipients, would be part of the full-scale integration of the Rare Earth Demonstration Facility program.
The instant funding opportunity is well suited for companies and consortia that can demonstrate integrated, scalable solutions linking reliable REE‑bearing feedstocks to downstream manufacturing needs. Mining and minerals firms with access to tailings or waste rock, industrial and e‑waste recyclers handling REE‑containing streams (for example, discarded magnets and electronics), and chemical/process companies with separation and refining expertise, are strong candidates for teaming up with universities offering academic expertise in mining, materials science, metallurgy, chemical processing, and similar fields.
The university, as funding applicant, will be expected to include with its funding application sufficient technical and financial information to demonstrate technical feasibility, abundant and readily available feedstock supply, cost-effective transport to and from the processing facility, robust environmental and community benefits, and a credible pathway to establish turnkey U.S. commercial deployment. The cost share by the applicant must be at least 50% of the total project costs.
Next Steps
As with all DOE NOFOs, interested applicants should expect an intensive grant application process and this specific NOFO will require a concerted team effort from interested academic institutions and their private party collaborators. A formal teaming arrangement between the funding applicant and each of its various commercial collaborators is highly advisable.
To assist funding applicants, DOE has developed two resources (Part 1 and Part 2) that highlight essential award information, including project scope, eligibility requirements, and selection procedures. DOE urges applicants to closely examine these resources and to tailor the funding application to address the various items identified by DOE. As a starting point, the interested applicant should consider submitting a nonbinding letter of intent by the December 10, 2025, deadline. Concurrently, the funding applicant must meet the January 5, 2026, deadline for DOE’s receipt of initial funding applications. The Troutman Pepper Locke team is available to consult and support those interested in pursuing federal support from startup to application completion.
Please visit Troutman Pepper Locke’s Regulatory Oversight blog to receive the most up-to-date information on regulatory actions and subscribe to our mailing list to receive a monthly digest.
Regulatory Oversight will provide in-depth analysis into regulatory actions by various state and federal authorities, including state attorneys general and other state administrative agencies, the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC). Contributors to the blog will include attorneys with multiple specialties, including regulatory enforcement, litigation, and compliance.
In This Issue:
Troutman Pepper Locke Spotlight
State AG Litigation: Emerging Risks and Enforcement Priorities Requiring a Unique Litigation Playbook
By Ashley L. Taylor, Jr. and Barry Boise
Register Here
Tuesday, December 16 | 1:00–3:10 p.m. ET
Ashley Taylor, co-leader of the firm’s State Attorneys General (AG) team, and Barry Boise, a partner in the Health Care and Life Sciences Litigation practice and a member of the firm’s State AG team, will participate in an upcoming CLE webinar with myLawCLE. They will discuss how regulatory environments evolve, how enforcement priorities shift, and the importance of understanding the future trajectory of state AG litigation.
David B. Dove, Troutman Pepper Locke Partner, Elected Chair of the University System of Georgia Board of Regents
By Troutman Pepper Locke
David B. Dove, a partner in Troutman Pepper Locke’s Regulatory Investigations, Strategy and Enforcement Practice Group, has been elected chair by the Board of Regents of the University System of Georgia (USG). Dove, who is currently serving as vice chair, will begin a one-year term on Jan. 1, 2026.
State AG Election Updates
2026 State Attorney General Elections: What You Need to Know
By Clayton Friedman, Ashley L. Taylor, Jr., Chris Carlson, Blake Christopher, and Nick Gouverneur
The 2026 election season is poised to bring substantial changes to the roster of state Attorneys General (AG). With over 30 races, including high-stakes contests in Texas and Florida, the outcomes of these state AG elections are set to significantly influence legal and policy outcomes across the nation. These elections will not only shape the legal landscape but also impact businesses and industries that operate within these states.
2025 State AG Election Day Update
By Troutman Pepper Locke State Attorneys General Team
Virginia — Jones Elected
Of the 43 elected state attorneys general (AG), Virginia was the only state to hold an AG election in 2025. Democratic candidate Jay Jones was elected to his first term, defeating incumbent Republican Jason Miyares by a 6.6% margin.
New Jersey — Democratic Governor Elected
In New Jersey, a new AG is expected to be appointed in 2026. The state’s AG is appointed by the governor and requires Senate approval. Following the November 4 gubernatorial election, Democratic candidate Mikie Sherrill defeated Republican candidate Jack Ciattarelli. Once Governor-elect Sherrill assumes office in January 2026, she is expected to nominate a candidate for AG. The current AG, Matt Platkin, was appointed by the outgoing Governor Phil Murphy in February 2022.
Regulatory Oversight Podcast Updates
The Garden State’s AG Blueprint: Data, Partnership, Accountability
By Stephen C. Piepgrass and Chris Carlson
In this episode of Regulatory Oversight, Stephen Piepgrass is joined by RISE partner Chris Carlson and New Jersey First Assistant Attorney General (AG) Lyndsay Ruotolo for a deep dive into the unique structure, scope, and impact of the New Jersey Office of the Attorney General (OAG). Lyndsay shares how her career in prosecution, county leadership, and federal service shaped a broad, modern view of public safety — one that spans criminal justice, consumer protection, health, and community well-being.
Sports Wagering and Prediction Markets Updates
NCAA Rescinds Rule Change That Would Have Allowed Athletes to Bet on Professional Sports
By Stephen C. Piepgrass and Cole White
The National Collegiate Athletic Association (NCAA) has abruptly reversed a recently approved rule change that would have permitted college athletes and athletic department staff to bet on professional sports. Under a rarely used override process, more than two-thirds of Division I member schools voted within a 30-day window last month to rescind the proposal. The threshold was reached on November 21, nullifying the rule change before it could take effect. As a result, the longstanding ban on sports wagering by NCAA student-athletes and staff remains in place across all three NCAA divisions. However, even if the rule had been implemented, college athletes and athletic department staff would still have been barred from betting on any NCAA contests, as the rescinded change only concerned wagering on professional sports. The vote to revoke the new rule underscores the NCAA membership’s cautious stance amid an evolving sports betting landscape.
Two Sports Betting Operators Leave AGA Over Prediction Markets Stance
By Stephen C. Piepgrass and Ayana Brown
On November 18, two prominent sports wagering and fantasy sports operators announced that they are leaving the American Gaming Association (AGA). The AGA is the leading trade group for casinos, gaming manufacturers, and sportsbooks. The split follows the AGA’s recent announcement of its firm stance against “prediction markets” and a forthcoming resolution to exclude companies that offer them. Prediction markets include platforms that allow individuals to trade on the outcomes of future events — whether sports-related or not.
Robinhood Shareholders Gleeful Over Firm’s ‘Prediction Market’ Push, But State AGs Say It’s Illegal Gambling
By Troutman Pepper Locke State Attorneys General Team
Troutman Pepper Locke’s State Attorneys General Practice Group, was mentioned in the November 4, 2025 Law.com article, “Robinhood Shareholders Gleeful Over Firm’s ‘Prediction Market’ Push, But State AGs Say It’s Illegal Gambling.”
Artificial Intelligence Updates
North Carolina and Utah AGs Launch AI Task Force
By Troutman Pepper Locke State Attorneys General Team
On November 13, North Carolina Attorney General (AG) Jeff Jackson and Utah AG Derek Brown, along with the Attorney General Alliance, announced a task force in conjunction with generative artificial intelligence (AI) developers, including OpenAI and Microsoft, to identify and develop consumer safeguards within AI systems as these technologies continue to rapidly proliferate.
Health Sciences and Pharmaceuticals Updates
Fourth Circuit Revives West Virginia Public Nuisance Suit Against Opioid Distributors
By Barry Boise, Lauren Fincher, Jeff Johnson, and Jessica Birdsong
What Happened:
A unanimous panel of the U.S. Court of Appeals for the Fourth Circuit revived a suit against certain pharmaceutical distributors brought under West Virginia public nuisance law. The panel held that the effects of over-distributing prescription opioids may constitute a public nuisance under West Virginia law, defined distributors’ duties under the Controlled Substances Act (CSA), and held that abatement may include monetary funding to remediate alleged community harm. Notably, the Fourth Circuit’s decision comes after the West Virginia Supreme Court declined to determine the scope of West Virginia public nuisance law, and as a result, the decision refused to limit the scope of public nuisance law without guidance from the West Virginia Supreme Court.
Data + Privacy Updates
Key Takeaways From California, Connecticut, and New York’s $5.1M Settlement With Education Technology Company
By Troutman Pepper Locke State Attorneys General Team, Angelo A. Stio, III, and Kaitlin Clemens
On November 6, California Attorney General (AG) Rob Bonta, Connecticut AG William Tong, and New York AG Letitia James announced a $5.1 million settlement with Illuminate Education, Inc. (Illuminate), an educational technology company that offers K-12 software solutions that enable schools and school districts to track student attendance and grades, and monitor academic progress, behavior, and mental health.
New York Begins Enforcing Algorithmic Pricing Disclosure Act
By Troutman Pepper Locke State Attorneys General Team and Sydney Goldberg
On November 10, New York’s Algorithmic Pricing Disclosure Act officially took effect, requiring businesses that use individuals’ personal data to set prices to comply with the act’s disclosure requirements. New York Attorney General (AG) Letitia James, charged with enforcement of this new law, has stated that enforcement is a top priority and has urged businesses to comply and consumers to report any violations.
Tobacco Updates
FDA Takes Cigarette Graphic Health Warnings Fight to Eleventh Circuit
By Bryan Haynes, Agustin Rodriguez, and Michael Jordan
On October 27, the FDA appealed a decision of the U.S. District Court for the Southern District of Georgia that vacated the agency’s 2020 rule requiring graphic health warnings on cigarette packaging and advertisements. This appeal to the U.S. Court of Appeals to the Eleventh Circuit, along with a separate challenge pending before the Fifth Circuit, may determine whether the FDA’s second attempt to impose graphic health warnings on cigarettes will be successful.
Crypto Updates
State AGs Urge SEC to Preserve State Authority in Crypto Regulation
By Troutman Pepper Locke State Attorneys General Team
On October 20, a coalition of 21 state attorneys general (AG), led by Iowa AG Brenna Bird, submitted a letter to Securities and Exchange Commission (SEC) Commissioner Hester M. Peirce in response to her February statement titled “There Must Be Some Way Out of Here.” Peirce’s statement invited public input to assist the SEC’s Crypto Task Force with clarifying regulatory approaches for digital assets. The letter from the AGs addressed the pivotal question of establishing a regulatory structure that balances clarity with the protection of state authority and consumer interests.
Hemp Updates
State AGs Seek Federal Ban on Intoxicating Hemp-Derived THC Products
By Troutman Pepper Locke State Attorneys General Team, Agustin Rodriguez, and Nick Ramos
The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) legalized industrial hemp for commercial use to support American farmers and create a regulated industrial hemp market. The 2018 Farm Bill defined “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” The 2018 Farm Bill also removed hemp from the definition of “marihuana” under the Controlled Substances Act. Since 2018, many in the hemp industry have relied on language in the 2018 Farm Bill’s definition of “hemp” (sometimes referred to as the 2018 Farm Bill loophole) to take the position that it authorizes the production and sale of intoxicating, hemp-derived THC products (e.g., beverages, gummies, candies, etc.) that are derived from cannabis plants containing less than 0.3% delta-9 THC on a dry-weight basis. On October 24, the National Association of Attorneys General (NAAG) sent a letter to congressional committee chairs, signed by 39 state and U.S. territory attorneys general (AGs), urging immediate legislative action to close the loophole.
Other State AG News
Washington AG Proposes New Model Public Records Act Rules
By Troutman Pepper Locke State Attorneys General Team
Washington Attorney General (AG) Nick Brown proposed updates to Washington State’s Public Records Act (PRA) model rules — the advisory playbook many state and local agencies rely on when handling records requests. The proposal aims to reduce backlogs and improve response times, with a public hearing set for November 6, and written comments invited through November 17.
Vermont AG Settles Alleged Deceptive Marketing Practices with Angi
By Troutman Pepper Locke State Attorneys General Team and Sydney Goldberg
On October 13, Vermont Attorney General (AG) Charity R. Clark announced a settlement with Angi, Inc., (Angi), resolving allegations related to misleading marketing practices.
Stephanie Kozol, Senior Government Relations Manager – State Attorneys General, also contributed to this newsletter.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.
The new consent to jurisdiction statute for toxic torts, SB 328, is raising the stakes for life sciences, chemical, and other companies. SB 328 loosens the jurisdictional requirements in Illinois and paves the way for other states to enact similar laws in 2026.
The Illinois law tracks Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), wherein the U.S. Supreme Court affirmed the propriety of a consent to jurisdiction statute in Pennsylvania — a state that is notoriously pro-plaintiff. Illinois used the Mallory blueprint to design its own consent-based jurisdictional law that aims to expand litigants’ access to yet another plaintiff-friendly jurisdiction.
With Pennsylvania and Illinois creating a framework that additional states may follow, life sciences, chemical, and other companies are exposed to even greater risk than before, making it essential to develop strategies and playbooks to mitigate organizational risk.
SB 328 Overview
Under SB 328, businesses consent to Illinois jurisdiction for toxic tort claims simply by registering to do business in the state. The law also establishes implied consent for unregistered businesses that conduct a business transaction in Illinois. This implied consent lasts 180 days following “each and every such” business transaction. By these terms, Illinois courts arguably may exercise personal jurisdiction over defendants for toxic tort claims arising outside the state although the defendants are neither incorporated nor headquartered in Illinois.
Not only does the statute have a long reach, but the definition of “toxic” is also incredibly vague and overbroad. The statute defines toxic as “any substance (other than a radioactive substance) which has the capacity to produce bodily injury or illness to man through ingestion, inhalation, or absorption through any body surface.” As a result, plaintiffs may try to exploit this poorly drafted term in SB 328 to stretch its statutory reach by characterizing many substances as “toxic,” including cosmetics, personal care products, cleaning products, pesticides, nutritional and dietary supplements, children’s toys, and even automotive products.
After the bill passed, 47 Illinois House representatives sued Speaker Emanuel “Chris” Welch and Senate President Don Harmon. They alleged the statute violated the Illinois Constitution’s “Three Readings Rule,” which requires a bill to first be read by title on three separate days before it is enacted into law. The circuit court dismissed the case, citing the enrolled-bill doctrine, a principle that presumes a bill is constitutional if the speaker of the House and the president of the Senate certify it was passed according to all procedural requirements. The court also found that the lawmakers lacked standing because the statute only affects foreign corporations doing business in Illinois. The plaintiffs appealed on September 11, 2025, and that appeal is pending. Other separate constitutional challenges by new plaintiffs to SB 328 are possible and remain likely.
Some potential constitutional arguments that could be raised include the following:
- Due Process Clause: SB 328 may violate due process rights because it compels out-of-state companies to submit to general jurisdiction in circumstances where they lack continuous and systematic contacts with the state.
- Dormant Commerce Clause:SB 328 may create claims under the dormant commerce clause by imposing a sweeping litigation burden on interstate businesses, which discriminates against or unduly burdens interstate commerce relative to any local benefit.
How Companies Can Prepare for 2026
For now, SB 328 remains enforceable and may significantly impact litigation defense strategies for life sciences, chemical, and other companies across the U.S. Much like in Illinois and Pennsylvania, more consent to jurisdiction laws similar to SB 328 seem likely to follow in 2026 and beyond. These laws exacerbate the issues already arising from long-arm statutes for tortious conduct, including toxic torts, that presently exist in many states. Unless and until constitutional questions are resolved, it is essential for companies to reassess their legal exposure and rethink their approach to contracting and litigation strategies.
1. Monitor Legal Developments in Plaintiff-Friendly Jurisdictions
Companies should regularly track the development of consent to jurisdiction statutes in all states — particularly those in plaintiff-friendly jurisdictions. Currently, Pennsylvania and Illinois are the only two states that have implemented consent by registration laws. New York, another traditionally plaintiff-friendly jurisdiction, proposed a bill that would have codified the Supreme Court’s Mallory holding, but it was vetoed by the governor.
Beyond consent to jurisdiction laws, companies should also continue to monitor long-arm statutes similar to those enacted in Florida, Georgia, Colorado, Texas, and California, among others, which can potentially create personal jurisdiction for alleged tortious conduct — including a toxic tort — even if the defendant is located outside the state.
2. Audit Your Corporate Footprint
It is especially important now for companies to know where they are actually conducting business and where they have even minimal connections to a state. This includes tracking remote employees, contractors, and facilities that plaintiffs may argue create connections, including tenuous ones, to a particular jurisdiction. For companies with a sales force, this analysis must include understanding where company salespersons may travel and solicit sales, even beyond the home state.
Audits should incorporate reviews of contracts for choice of law and forum selection clauses as well.
3. When Possible, Avoid High-Risk Jurisdictions
When feasible, companies should update their foreign filings and business registrations to avoid plaintiff-friendly jurisdictions that allow consent by registration or otherwise have long-arm statutes. Companies should establish internal controls to ensure their foreign filings, registrations, and withdrawals are current.
Companies should also implement internal controls to monitor and mitigate jurisdictional exposure. Developing contracting strategies may help flag certain jurisdictional terms and other measures that can assist in proactively identifying potential risks with business partners and operations.
4. Develop Your Litigation and Contracting Playbook
It may not always be practical or possible to avoid a specific jurisdiction in view of operational realities. Sometimes, a certain degree of contact with a particular state is needed to effectuate company business. In such circumstances where there is an identified litigation risk, companies should prepare litigation playbooks that anticipate claims, pre-identify local counsel, establish e-discovery protocols, and develop removal strategies. Additionally, companies should consider the inclusion of strong indemnification contract terms with strategic partners in high-risk jurisdictions.
Conclusion
Illinois’ SB 328 statute marks a growing shift in toxic tort litigation across the nation. As more states consider and enact their own long-arm personal jurisdiction statutes, life sciences, chemical, and other companies must continue to periodically assess their potential litigation exposure in these plaintiff-friendly jurisdictions — including those where they may have limited connections.
In the US, the introduction of the One Big Beautiful Bill Act (OBBBA), coupled with the imposition of a new tariff regime, has had profound effects on both domestic and international energy storage markets. New Foreign Entity of Concern (FEOC) rules may reorder established supply chains and engender a strategic pivot in the battery storage industry. As this report highlights, some of the biggest battery storage providers have already pre-empted the rules by taking significant steps to onshore the manufacturing of certain components.