The U.S. Department of Justice, Antitrust Division (DOJ) has announced a new initiative aimed at enhancing the detection and prosecution of antitrust violations. On July 7, 2025, the DOJ’s Antitrust Division, in collaboration with the U.S. Postal Service, launched the “Whistleblower Rewards Program.” This program is designed to incentivize individuals to report antitrust crimes affecting the postal service, its revenues, or property, offering whistleblowers the opportunity to receive up to 30% of any criminal fines recovered for violations.

Assistant Attorney General Abigail Slater emphasized the importance of this program in breaking down the “walls of secrecy” that often surround antitrust offenses, such as price fixing and bid rigging. The initiative aims to create a pipeline of leads from those with firsthand knowledge of criminal activities, thereby raising the stakes for offenders.

The program is part of the DOJ’s ongoing efforts to combat collusion and cartel activities, which AAG Slater has declared a priority. It builds upon the agency’s existing leniency program. Whistleblowers who voluntarily provide original information leading to criminal fines or recoveries of at least $1 million may be eligible for rewards ranging from 15% to 30% of the recovery. The discretion for payment lies with the Antitrust Division.

This initiative also complements the DOJ’s Procurement Collusion Strike Force, a multiagency effort established in 2019 to uncover antitrust violations in government procurement. The Postal Service Office of Inspector General, a key member of this strike force, actively collaborates with other agencies to incentivize reporting of collusive behavior without fear of reprisal.

This newly established program underscores the DOJ’s commitment to rooting out illicit behavior across industries, particularly those involving USPS procurement. Corporations found guilty of antitrust violations can face fines up to $100 million, while individual defendants may incur fines up to $1 million, with potential for higher penalties based on the impact of the violation.

As a result of the Whistleblowers Rewards Program, companies should anticipate increased scrutiny and enforcement actions. It is advisable for businesses to review their compliance programs and ensure robust measures are in place to prevent and detect potential antitrust violations. Organizations should be prepared to respond promptly to any inquiries or actions from the DOJ and ensure they have legal strategies in place to address potential claims.

Troutman Pepper Locke is monitoring the DOJ’s evolving priorities and guidance closely. If you have questions on how these priorities impact your business or wish to begin evaluating your existing compliance programs and policies and procedures, please do not hesitate to contact a member of our Antitrust or White Collar Litigation and Government Investigations team.

On July 7, 2025, President Trump signed an executive order (the Order) once again extending the temporary suspension of reciprocal tariffs that were originally set forth in his April 2 “Liberation Day” Executive Order 14257 and later suspended until July 9 under Executive Order 14266 (together, Reciprocal Tariffs). The latest move gives most U.S. trading partners (except China) until August 1 to reach bilateral trade agreements or face sharp tariff increases.

This latest development is part of President Trump’s broader strategy to recalibrate U.S. trade relationships. This move reflects a strategic pause to allow ongoing negotiations to progress, while maintaining pressure on trading partners to secure trade deals that enhance U.S. economic interests.

The Order

The Order formally maintains the temporary additional 10% tariff rate on most imports from most trading partners through 12:01 a.m. EDT on August 1. The temporary pause on the higher country-by-country Reciprocal Tariffs was set to expire on July 9. While this deadline has been extended to August 1 for most trading partners, the temporary Reciprocal Tariff rate for China remains unchanged at 30% until August 12 pursuant to Executive Order 14298.

Tariff Rates Starting August 1

Simultaneously with the Order, President Trump issued letters to the governments of the following 14 countries, warning of “higher tariffs,” outlined below, “if they don’t make trade deals with the U.S. by Aug. 1.” Countries not listed and without a trade agreement with the U.S. starting on August 1 will remain subject to the baseline 10% additional tariff rate.

Country/Region

Proposed Tariff Rate

Japan, South Korea

25%

Laos, Myanmar

40%

Cambodia, Thailand

36%

Bangladesh, Serbia

35%

Indonesia

32%

South Africa, Bosnia

30%

Malaysia, Kazakhstan, Tunisia

25%

Additional Retaliation Threats

President Trump threatened to impose an added 10% tariff on any BRICS country (a group of emerging economies — Brazil, Russia, India, China, South Africa, Saudi Arabia, Egypt, United Arab Emirates, Ethiopia, Indonesia, and Iran — formed to promote political and economic cooperation) if they adopted policies deemed “anti-American.” This would be in addition to the tariffs already imposed against these countries. However, no official action has been taken to impose these threatened measures. The administration has not defined what would constitute “anti-American” policies. However, President Trump has previously warned BRICS leaders against creating a new shared currency or backing efforts to replace the U.S. dollar in global trade. The threat follows a recent BRICS summit in Brazil, where participating countries criticized U.S. trade policies and expressed frustration with continued dollar dependency in the international financial system.

Countries with Preliminary Agreements

So far, only a few countries — Vietnam, the UK, and China — have reached agreements or understandings, each resulting in either partial or temporary relief from the steep Reciprocal Tariff increases set to take effect on August 1. For the UK, a May 2025 framework agreement preserves a 10% baseline additional tariff rate on most UK imports into the U.S., with exemptions or reduced rates for specific sectors such as automobiles, steel, and aluminum. The UK also agreed to lift tariffs on key U.S. exports like ethanol and beef. However, some details of the deal are not yet finalized.

With China, a 90-day pause was agreed to in May, currently capping the recently added U.S. tariffs at 30% (including a 10% Reciprocal Tariff and a 20% opioid-related tariff imposed on all Chinese imports under Executive Order 14195, as amended by Executive Order 14228) through August 12. This agreement temporarily shields China from the August 1 Reciprocal Tariff escalation, though its future status remains uncertain pending the outcome of ongoing trade negotiations.

President Trump announced on July 2 that Vietnam had agreed to a framework that sets a 20% Reciprocal Tariff on most Vietnamese imports, lower than the initial 46% Reciprocal Tariff rate that had been proposed for Vietnam. However, the agreement also includes a tariff rate of up to 40% for transshipped goods originating from third countries. This measure is widely viewed as indirectly targeting China’s exports to Vietnam that may be reexported to the U.S. In exchange, the U.S. secured duty-free treatment for several major exports to Vietnam. Still, key details of this framework agreement with Vietnam remain unresolved.

What’s Next?

  • August 1 Deadline: Countries that do not strike deals with the U.S. by then could face added tariffs.

  • New Trade Agreements: Look for announcements of new agreements with major trading partners over the coming weeks.

  • Compliance and Supply Chain Strategy: U.S. companies are being urged to evaluate sourcing risks, update tariff classifications, and consider supply chain shifts as the deadline approaches.

President Trump’s tariff agenda has always centered on leverage — and with the extension of the pause to August 1 and the issuance of stark letters to trading partners, the administration is seeking to maximize that leverage. This is more evident from recent announcements made by President Trump signaling several steep sector-specific tariffs will be imposed soon, including pharmaceutical and copper imports. The coming weeks, however, will determine whether countries agree to bilateral deals that will satisfy the administration.

Consignments may be governed by either common law or Article 9 of the Uniform Commercial Code, the latter of which requires the consignor to comply with various procedures in order to perfect its security interest in the consigned good.

This article will provide an overview of the key issues involving the perfection of consignment rights before a bankruptcy case is filed. To access this article and read other insights from our Creditor’s Rights Toolkit, please click here.

On July 4, 2025, H.R. 1 — the One Big Beautiful Bill Act (the OBBBA) was enacted into law. We discussed the version of the bill that passed in the House in May (the House bill) in our previous update. On July 1, the Senate passed the OBBBA, which was then passed in the House on July 3 and signed into law by the president on July 4.

The OBBBA includes significant changes to the timing and availability of several clean energy tax credits, including the clean energy ITC (CEITC) and PTC (CEPTC), the clean hydrogen PTC, the advanced manufacturing credit, and the zero-emission nuclear PTC, as well as restrictions related to foreign entities applicable to such credits and to the carbon capture sequestration credit. The OBBBA includes various timeframes for grandfathering renewable energy projects from such changes.

A chart of key dates for solar, wind, and battery projects under the OBBBA can be downloaded here.

Key Changes

This alert focuses on issues of particular significance to the energy industry and the timeframes for beginning construction before the relevant effective dates and is not intended to be comprehensive. Four key changes discussed below include:

  • Accelerated phase-out of various clean energy tax credits;
  • New restrictions related to foreign entities of concern (FEOC);
  • Adoption of existing beginning of construction guidance for purposes of the FEOC restrictions; and
  • Denial of CEITC and CEPTC for small wind leasing arrangements.

Accelerated Phase-Out/Sunset of CEPTC, CEITC, Clean Hydrogen PTC, and Advanced Manufacturing Credits

Sections 45Y (the CEPTC) and 48E (the CEITC)

For solar and wind projects that begin construction after July 4, 2026 (the date which is 12 months after enactment), the OBBBA phases out the CEPTC and CEITC for projects placed in service after 2027.

Prior to the enactment of the OBBBA, the phase-out period for the CEPTC and the CEITC for all projects (including solar and wind) would have occurred over three calendar years, commencing upon the later of 2032 and the year in which greenhouse gas emissions from electricity production have been reduced by 75% from 2022 levels.

  • Troutman Pepper Locke Insight: The one-year “beginning of construction” standard is much more accommodating than both the 60-day standard in the House bill and the “date of enactment” standard in an early draft of the OBBBA in the Senate. The early draft of the OBBBA in the Senate also included an excise tax that applied to solar and wind projects based on use of foreign materials, which is no longer included in the OBBBA. We note that the 2027 placed in service deadline is unlikely to apply to many utility-scale solar and wind projects given typical project development timelines.
  • Troutman Pepper Locke Insight: The final OBBBA does not include the elimination of five-year MACRS for CEITC and CEPTC property that was included in early drafts of the Senate bill.

Section 45V (Clean Hydrogen PTC)

The OBBBA accelerates the phase-out for the clean hydrogen PTC by revising the beginning of construction deadline to January 1, 2028.

Prior to the enactment of the OBBBA, the beginning of construction deadline for the clean hydrogen PTC was January 1, 2033.

  • Troutman Pepper Locke Insight: It may be more challenging for clean hydrogen projects to meet the beginning of construction deadline than wind or solar projects, given that the industry is still nascent and many developers are not yet able to procure significant equipment. However, the December 31, 2027, deadline is much more accommodating than the House bill, which included a December 31, 2025, deadline.

Section 45X (Advanced Manufacturing Credits)

The Section 45X advanced manufacturing credit applies different credit rates to the production of different eligible components.

For tax years beginning after enactment, the OBBBA modifies the relevant phase-out and termination dates for certain types of eligible components and the requirements for battery modules.

Metallurgical coal was added as an applicable critical mineral, but the advanced manufacturing credit rate is only 2.5% (as opposed to the 10% rate for other applicable critical minerals).

For applicable critical minerals (except for metallurgical coal), the OBBBA adds a phase-out that begins in 2031 (prior law included no phase-out or termination for critical minerals). The OBBBA terminates the credit for wind energy components and metallurgical coal. For wind energy components, the advanced manufacturing credit is terminated for components produced and sold after December 31, 2027. For metallurgical coal, the advanced manufacturing credit is terminated for metallurgical coal produced after December 31, 2029.

Prior to the enactment of the OBBBA, the phase-out period for the advanced manufacturing credit was set to begin in 2030 for eligible components other than critical minerals, with the complete phase-out for components sold after 2032.

Finally, the term “battery module” was modified to clarify that battery modules are comprised of all other essential equipment needed for battery functionality, such as current collector assemblies and voltage sense harnesses, or any other essential energy collection equipment.

Restrictions on Foreign Entities and Investors

The OBBBA includes complex restrictions related to relationships with or assistance from certain FEOCs, which apply to the CEITC, CEPTC, the Section 45Q carbon capture sequestration credit, the Section 45U nuclear PTC, and the advanced manufacturing credit.

For taxable years beginning after the date of enactment of the OBBBA, no such credit is available if the facility is owned by a “specified foreign entity” (SFE). An SFE is defined in the OBBBA to include specifically identified threats to the security of the U.S., Chinese military companies operating in the U.S., entities subject to Uyghur Forced Labor Prevention Act restrictions, and battery-producing entities eligible for Department of Defense contracts as identified by the National Defense Authorization Act for Fiscal Year 2021.

  • Troutman Pepper Locke Insight: This definition includes Contemporary Amperex Technology Company (CATL), BYD Company, Envision Energy, EVE Energy Company, Gotion High Tech Company, and Hithium Energy Storage Company, thus impacting significantly all battery energy storage systems.

SFEs also include foreign-controlled entities. An entity will generally be a “foreign-controlled entity” only if it is owned more than 50% by entities or individuals with ties to North Korea, China, Russia, or Iran.

In addition, for taxable years beginning after two years after the date of enactment of the OBBBA, no credit is allowed under Section 45U if the facility is owned by a “foreign-influenced entity” (FIE). Further, no credit is allowed under Section 45Q, Section 45X, Section 45Y, and Section 48E for any taxable year beginning after the date of enactment of the OBBBA if the facility is owned by an FIE. An FIE is one that satisfies one of two tests: first, one of the following conditions must be met during the applicable taxable year: (i) an SFE has authority to appoint a covered officer, (ii) a single SFE owns at least 25% of the entity, (iii) one or more SFEs own in the aggregate 40% or more of the entity, or (iv) at least 15% of the entity’s debt is held in the aggregate by one or more SFEs. Second, during the previous taxable year, the entity must have made a payment to an SFE pursuant to a contract, agreement or other arrangement which entitles such SFE (or an entity related to such SFE) to exercise control over (i) any qualified facility or energy storage technology of the taxpayer (or any person related to the taxpayer) or (ii) with respect to any eligible component produced by the taxpayer (or any person related to the taxpayer), (a) the extraction, processing, or recycling of any applicable critical mineral, or (b) the production of an eligible component which is not an applicable critical mineral.

Effectively controlled entities are ineligible for credits. For purposes of defining an FIE, the OBBBA broadens the definition of effective control to encompass licensing agreements and related contractual arrangements with respect to a qualified facility, energy storage technology, or the production of an eligible facility where (i) a contractual counterparty retains any of the following rights to: (A) control sourcing of components and subcomponents, (B) direct operations, (C) restrict the taxpayer’s use of intellectual property, (D) receive royalties beyond 10 years of a licensing or similar agreement, (E) direct or otherwise require the taxpayer to enter into service agreements exceeding two years, (ii) such agreement fails to provide the licensee with the technical data and know-how necessary to produce an eligible component independently, without further involvement from the contractual counterparty or an SFE, or (iii) such agreement was entered into after the date of enactment. However, the OBBBA carves out the bona fide purchase and sale of intellectual property from the restrictions, excluding purchases where the intellectual property reverts after a period of time.

The OBBBA provides that the Secretary shall issue such guidance with respect to the FIE provisions no later than December 31, 2026.

  • Troutman Pepper Locke Insight: If read literally, the practical effect of the “entered into after the date of enactment” standard is that any licensing agreements executed after July 4, 2025 are deemed to provide the licensee with effective control.
  • Troutman Pepper Locke Insight: The OBBBA’s omission of the FEOC rules from Section 48 means that geothermal heat pump property that begins construction before January 1, 2035, will not be subject to the FEOC rules if the Section 48 ITC is claimed with respect to such property.

In addition to the ownership-related restrictions described above, new project-level restrictions prevent facilities from being eligible for the CEITC, CEPTC, or advanced manufacturing credits if they begin construction after the end of 2025 (or, in the case of the advanced manufacturing credits in taxable years beginning after the date of enactment of the OBBBA, if an eligible component is used in a product sold before January 1, 2027) and receive “material assistance from a prohibited foreign entity” (PFE). A PFE is an SFE or an FIE. The term “material assistance” from a PFE means that, with respect to any property, a facility has a “material assistance cost ratio” that is less than the applicable threshold percentage.

With respect to any qualified facility or energy storage technology, the threshold percentage is 40% in the case of a qualified facility that begins construction in 2026 and is 55% in the case of energy storage technology that begins construction in 2026. The threshold percentage increases 5% each year through 2029. The “material assistance cost ratio” for qualified facilities and energy storage technology is an amount (expressed as a percentage) equal to (i) the total direct costs to the taxpayer attributable to all manufactured products (including components) incorporated into the qualified facility or energy storage technology other than the total direct costs attributable to all manufactured products (including components) that are mined, produced, or manufactured by a PFE, divided by (ii) the total direct costs to the taxpayer attributable to all manufactured products (including components) that are incorporated into the qualified facility or energy storage technology.

The OBBBA requires the Secretary to issue safe harbor tables to identify the percentage of total direct costs of any manufactured product or eligible component that is attributable to a PFE and to provide rules necessary to determine the amount of a taxpayer’s material assistance from a PFE no later than December 31, 2026. Prior to the issuance of such safe harbor tables, taxpayers may use the tables included in Notice 2025-08 to establish the percentage of the total direct material costs of any listed eligible component and any manufactured product, and rely on a certification by the supplier of the manufactured product, eligible component, or constituent element, material, or subcomponent of an eligible component regarding (i) the total direct costs or the total direct material costs, as applicable, of such product or component that was not produced or manufactured by a PFE, or (ii) that such product or component was not produced or manufactured by a PFE.

  • Troutman Pepper Locke Insight: While compliance with the material assistance ratio may not be as burdensome for taxpayers developing projects with domestic content strategies, the compliance burden may be more significant for projects without such strategies in place.
  • Troutman Pepper Locke Insight: Certain suppliers may be reluctant to provide certifications since violations of the material assistance ratio resulting from misrepresentations can result a penalty to the person that provides the certification.

Taxpayers may elect to exclude costs from the material assistance cost ratio with respect to a product, component, element, material, or subcomponent that is (i) acquired, manufactured, or assembled pursuant to a binding written contract with a PFE that was entered into before June 16, 2025, and (ii) placed in service before 2030 (or before 2028, in the case of solar and wind property used to generate electricity) in a facility the construction of which begins before August 1, 2025.

  • Troutman Pepper Locke Insight: The material assistance ratio is expected to impact nearly all major suppliers of battery storage systems and solar modules.

The OBBBA amends the recapture rules for the CEITC to provide that payments to FEOCs result in recapture of the CEITC. However, unlike the normal ITC recapture rules, this FEOC recapture rule applies during the 10-year period beginning at placed in service, and results in 100% recapture at all points during that period.

  • Troutman Pepper Locke Insight: The recapture rule for the CEITC is stricter than the FIE disallowance discussed above as applied to the CEPTC because an applicable payment to an SFE results in the recapture of the entire CEITC. With respect to the CEPTC, such a payment results in the disallowance of the CEPTC for the taxable year following the payment.

Adoption of Existing Beginning of Construction Guidance for Purposes of the FEOC Restrictions

For purposes of the FEOC restrictions, the OBBBA provides that the beginning of construction date is determined pursuant to rules similar to Notice 2013-29 and Notice 2018-59 as well as any subsequently issued guidance in effect on January 1, 2025.

Additionally, the OBBBA directs the Secretary to prescribe regulations and guidance to prevent the circumvention of the FEOC restrictions. Further, on July 7, President Trump issued an executive order directing the Treasury to issue new guidance to ensure that policies concerning the “beginning of construction” are not circumvented, including by preventing the artificial acceleration or manipulation of eligibility and by restricting the use of broad safe harbors unless a substantial portion of a subject facility has been built.

  • Troutman Pepper Locke Insight: Taxpayers may find it helpful that the OBBBA adopts a familiar standard for the beginning of construction given the longstanding application of the beginning of construction guidance. However, the anti-circumvention rule and executive order indicate the IRS may change the standard to take a more prohibitive approach.
  • Troutman Pepper Locke Insight: For existing “beginning of construction” guidance, please see our prior analysis on Notices 2013-29, 2013-60, 2014-46, 2015-25, 2016-31, 2017-04, 2018-59, 2019-43, 2020-41, and 2021-41.

Denial of Credit for Expenditures for Small Wind Leasing Arrangements

The OBBBA denies the CEITC or CEPTC to solar water heating and wind generation property if the taxpayer rents such property to a third party. Unlike the House bill, solar electric property is not included in the list of prohibited property. Accordingly, residential solar electric property that is leased to customers remains eligible for the CEITC and CEPTC.

Conclusion

As enacted, the OBBBA provides substantive rules and transition rules that are significantly more favorable to the industry than interim versions of the bill that had been proposed. Because certain of the more unfavorable provisions in the OBBBA do not apply to projects that “begin construction” as of certain dates, it is essential to consider and implement “beginning of construction” strategies for applicable projects as soon as possible.

For further assistance or clarification, please contact any of the authors of this advisory.

This article was cited in HomeCare Magazine on July 9, 2025.

On July 2, 2025, the U.S. Department of Justice (DOJ) announced the formation of a new working group in collaboration with the U.S. Department of Health and Human Services (HHS) focused on the enforcement of the False Claims Act (FCA). The DOJ-HHS False Claims Act Working Group will include leadership from the DOJ’s Civil Division and various HHS offices.

As part of the working group’s coordination, HHS will make referrals to DOJ regarding potential FCA violations in certain priority areas. These referrals will reflect the new enforcement priorities, in addition to long-standing enforcement areas previously announced by Assistant Attorney General Brett Shumate on June 11, 2025.

The priority enforcement areas include:

  • Medicare Advantage.

  • Drug, device, or biologics pricing, including arrangements for discounts, rebates, service fees, and formulary placement and price reporting.

  • Barriers to patient access to care, including violations of network adequacy requirements.

  • Kickbacks related to drugs, medical devices, durable medical equipment, and other products paid for by federal health care programs.

  • Materially defective medical devices that impact patient safety.

  • Manipulation of Electronic Health Records systems to drive inappropriate utilization of Medicare-covered products and services.

Monthly meetings will commence in July, focusing on identifying new leads by utilizing HHS resources such as enhanced data mining and assessment of HHS and HHS-OIG report findings to creatively address unchecked fraud, waste, and abuse. The working group will also consider whether HHS should suspend payments to Medicare providers and suppliers based on a credible allegation of fraud, and whether DOJ should use its statutory authority to move to dismiss qui tam complaints.

Companies operating in the targeted sectors should anticipate increased scrutiny and enforcement actions. It is advisable for businesses to review their compliance programs and ensure robust measures are in place to prevent and detect potential FCA violations. Enhanced enforcement may lead to an increase in FCA investigations and litigation. Organizations should be prepared to respond promptly to any inquiries or actions from the DOJ and ensure they have legal strategies in place to address potential claims.

Troutman Pepper Locke is monitoring the DOJ’s evolving priorities and guidance closely. If you have questions on how these priorities impact your business or wish to begin evaluating your existing compliance programs and policies and procedures, please do not hesitate to contact a member of our White Collar Litigation and Government Investigations team.

In what appears to be an emerging privacy litigation trend, plaintiffs’ attorneys have recently filed a series of putative class action lawsuits targeting data companies in possession of cellular telephone numbers. The lawsuits attempt to leverage an untested provision in Colorado’s Prevention of Telemarketing Fraud Act (PTFA) which prohibits knowingly listing “a cellular telephone number in a directory for a commercial purpose unless the person whose number has been listed has given affirmative consent[.]” Colo. Rev. Stat. Ann. § 6-1-304(4). Although the law was originally enacted in 2005, there is almost no case law interpreting its provisions. However, the PTFA provides for statutory damages of $300-500 per violation, attorneys’ fees, and costs, making it attractive to plaintiffs’ lawyers. Several other states have similar laws. See, e.g., Conn. Gen. Stat. Ann. § 16-247s, N.Y. Gen. Bus. Law § 399-cc.1, Minn. Stat. Ann. § 325E.318, 73 Pa. Stat. Ann. § 2403, S.D. Codified Laws § 49-31-118, and TX UTIL § 64.202.

The recently filed cases attempt to assert PTFA claims against several companies, including Datanyze LLC, Zenleads, Inc., Infopay, Inc., Lusha Systems, Inc., and Beenverified LLC. The plaintiffs claim the defendants violated the PTFA’s prohibitions by listing plaintiffs’ cell phone numbers on their websites without authorization. Specifically, the complaints target business models in which companies display “teaser” data in response to a search query with an offer to purchase additional information. Plaintiffs argue that displaying cell numbers in response to such searches constitutes “listing” numbers in a “directory” within the meaning of the PTFA.

Plaintiffs’ firms Bursor and Fisher, P.A., Emery Reddy PLLC, Anderson + Wanca, and Birnbaum & Godkin, LLP have all jumped on the PTFA bandwagon in recent months. Cases are now pending in federal district courts across the U.S., including the District of Colorado, District of Massachusetts, Northern District of California, Western District of Washington, and Southern District of New York. Each of these cases remains is in the early stages of litigation, and to date, no responsive pleadings or motions to dismiss have been filed.

In light of this recent wave of litigation, companies should consider the following to mitigate the risk they may be targeted under the PTFA:

  1. Identify Colorado cell numbers: Companies should consider their ability to reliably determine if a cell number belongs to a Colorado resident (or that of another state with similar laws).
  2. Consent practices: The PTFA contains an exception if the owner of the cell phone number has provided consent. Companies should consider the sources of their cell phone data and practices relating to obtaining and documenting consent.
  3. “Lists a cellular phone number”: Companies should consider using “dummy” data or redacting portions of displayed cell phone numbers in any search results, which may mitigate risk.
  4. Use of a “directory”: The PTFA prohibits listing a cell number in a “directory,” but the term is not defined in the statute. Companies should consider how they display search results and how they might avoid having those results characterized as a “directory.”
  5. “For a commercial purpose”: Companies should consider adjustments to their sales practices to mitigate any argument they are using data for a commercial purpose.
  6. Opt-out mechanisms: Companies should ensure there are user-friendly opt-out mechanisms that allow individuals to request that their information be removed from databases.

Companies targeted in PTFA litigation will need to think creatively about defenses, as the PTFA has rarely been tested in court. Companies may have a number of arguments based on the statute’s legislative history and the statute’s intended purpose of targeting abusive telemarketing practices, or that a company’s business practices do not fit within the “commercial” conduct regulated by the statute. Further, PTFA claims are generally poor candidates for class certification because the individualized nature of the claims (for example, determining whether there was consent or whether the number belonged to a Colorado resident at the time of publication) arguably defeats Rule 23’s predominance requirement.

Troutman Pepper Locke’s Privacy + Cyber team has experience advising clients concerning PTFA issues and litigating PTFA claims. For more information, contact Joshua D. Davey, David J. Navetta, Ronald I. Raether, and Natalia A. Jacobo.

“God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.”- The Serenity Prayer

The first 100 days of President Trump’s administration have been full of change, and the markets have been a rollercoaster ride,[1] leading many of my estate planning clients (regardless of political affiliation) to shelter in place to ride out the storm. The purpose of this article is to remind clients that “in the midst of chaos, there is also opportunity.”[2] Below are five estate planning opportunities that, if implemented now, can yield significant and lasting benefits.

1. Consider Claiming the Deceased Spousal Unused Exclusion (DSUE) for the Surviving Spouse

DSUE and portability were first introduced as part of the Tax Relief, Unemployment Reauthorization, and Job Creation Act of 2010 (TRA 2010), which became effective for married persons dying on or after January 1, 2011. Basically, portability allows the surviving spouse to claim the unused portion of a decedent’s applicable exemption amount and add it to their own. In theory, every surviving spouse should be doing this. In practice, most are not.

The basic exclusion amount is adjusted for inflation annually and is currently $13.99 million.[3] Given that the average net worth of U.S. households in 2022 was $1,059,470[4] and the median net worth was $192,700,[5] most individuals have no obligation to file federal estate tax returns.[6] For those who do, DSUE can be a huge benefit.[7]

To claim the DSUE, the executor of the deceased spouse’s estate must elect to transfer the DSUE amount to the surviving spouse on a timely filed Form 706: United States Estate (and Generation-Skipping Transfer) Tax Return.[8] If the executor did not have a filing requirement under IRC. § 6018(a) and failed to timely file Form 706 to make the portability election, the executor may be eligible for an extension under Rev. Proc. 2022-32, 2022-30 I.R.B. 101 (superseding Rev. Proc. 2017-34, 2017-26 I.R.B. 1282).[9] An executor filing to elect portability may now file the Form 706 on or before the fifth anniversary of the decedent’s death.[10]

Under Treas. Regs. § 20.2010-2(a)(7)(ii), if the total value of the gross estate and adjusted taxable gifts is less than the basic exclusion amount (see IRC § 6018(a)) and Form 706 is being filed only to elect portability of the DSUE amount, the estate is not required to report the value of certain property eligible for the marital or charitable deduction,[11] which should make the preparation of the Form 706 less expensive. Once the DSUE has been transferred, any taxable gifts made by the surviving spouse will be applied against the DSUE until it is exhausted, or the surviving spouse receives the DSUE of a subsequent deceased spouse.[12]

2. Consider Spousal Lifetime Access Trusts (SLATs)

SLATs are often overprescribed, and the downsides often overlooked, but in the right situations, they can be highly effective tools for reducing estate tax and providing asset protection. The purchase of life insurance inside a SLAT can also provide needed return and liquidity in unsteady markets. If spouses have a taxable estate and have not fully utilized their applicable exclusion amounts, properly prepared and maintained SLATs can significantly reduce their estate tax burden. SLAT planning combines fully utilizing one’s currently existing applicable exclusion amount (before the potential sunset) and asset freezing.[13]

A SLAT is an irrevocable, typically intentionally defective grantor trust created by one spouse, the settlor, for the benefit of the other (and sometimes other family members). In funding the trust, the settlor uses all the remaining applicable exclusion amount often by making gifts of highly appreciating assets to the trust.[14] Once transferred, those assets and the future appreciation on those assets are out of the settlor’s gross estate for estate tax purposes. The assets and the income from the assets are available for the benefit of the settlor’s spouse for the spouse’s lifetime and then often remain in trust for the settlor’s descendants. Importantly, the settlor can benefit indirectly from the trust through his spouse, the beneficiary. For example, if the trust provides for the spouse’s maintenance and support, the trustee can maintain a home for the beneficiary, where the settlor likely resides.

It is important to note that while this is a possibility (and perhaps a probability), it is not a guaranty. If the settlor and the settlor’s spouse divorce, the settlor will learn just how complete the gift to the trust is and that the assets and the income from those assets are gone. This is also true when the settlor’s spouse dies, and the assets pass to the settlor’s descendants and are no longer available to the settlor, even indirectly. This risk is often downplayed and lost in client conversations, which tend to focus more on the reciprocal trust doctrine as the greatest risk to SLAT planning. If divorce is a possibility (no matter how remote), SLATs should not be considered.

The reciprocal trust doctrine is a significant concern when preparing SLATs for married couples, but with proper planning, its impact can be minimized. Estate planning attorneys often focus on this doctrine because of the clear legal risk, and a common adversary — the Internal Revenue Service (IRS) — rather than addressing potentially sensitive issues such as the clients’ marriage.

The reciprocal trust doctrine is a tax rule that allows the IRS to disregard a completed gift of assets out of one’s estate when the plan leaves the donor and the beneficiary in the same positions they were in before implementing the transfers. This doctrine is similar to the substance over form[15] argument and the economic substance[16] argument. To avoid creating SLATs that mirror each other in their trust terms, the spouses can vary: (i) the timing of the creation of the trusts, (ii) the trustees, (iii) the beneficiaries (e.g., one SLAT benefits the husband, and the other SLAT benefits the wife and their children); (iv) the distributions from the trusts (one SLAT can provide for immediate benefits for the beneficiary’s health, education, maintenance, and support and the other for periodic distributions of a specific dollar amount), (v) the powers of appointment given to the beneficiaries, and (vi) the assets contributed to the trusts. Ultimately, the question is whether the spouses are in the same economic position after the transfer as they were before.

Other important considerations with SLATs are:

  • That the assets in SLATs do not benefit from the step-up in basis at the settlor’s death.

  • In community property states, extra care must be taken to ensure that the assets contributed to a SLAT are separate property of the settlor.

  • That income that is not immediately used be kept in the SLAT to avoid including the assets in the beneficiary’s estate.

  • That in the event of a divorce, the settlor is not obligated to pay the income tax on trust income used for the ex-spouse’s benefit.

Although SLATs are irrevocable by definition and design, non-judicial modifications such as decanting, mergers, and sales (or substitutions, if applicable) can be used to keep SLATs from failing. Proper structuring and continued review of SLATs remain crucial to ensure they remain aligned with the settlor’s objectives and changing personal and legal circumstances.

3. Consider Converting Traditional Individual Retirement Accounts (IRAs) to Roth IRAs

A traditional IRA is the least tax-efficient asset to pass on at death because it does not get a step-up in basis at death and the “stretch IRA,” which allowed beneficiaries to withdraw funds from inherited IRAs over their lifetimes, was eliminated for most non-spousal beneficiaries by the SECURE Act of 2019. Presently, most non-spousal beneficiaries must withdraw all of the funds from inherited IRAs by the end of the 10th year after the original owner’s death. Fortunately, several options are available to deal with this asset class depending on the client’s goals.

One option for charitable individuals is the Qualified Charitable Distribution (QCD). The QCD allows a person to direct up to $108,000[17] in 2025 of required minimum distributions from a traditional IRA to charity (not a donor-advised fund) each year while excluding that amount from taxable income. For the very charitable, one can name a charity as the beneficiary of an IRA and have the entire amount pass to the charity at one’s death. However, for those who want to leave IRAs to individuals (and not charities), a Roth conversion is another great option.

A Roth conversion is basically an election to pay the tax on all or a portion of the traditional IRA at ordinary income tax rates in the year of conversion. There is no 10% early withdrawal penalty associated with the conversion. Once the tax is paid, the converted portion is held in a Roth IRA and is no longer subject to income tax as long as the client does not take distributions before age 59½ and the client has met the five-year holding period requirement.[18]

The discussion about whether to convert a traditional IRA to a Roth IRA centers on the tax consequences and timing. In the year of conversion, the client’s income will be increased, and the conversion could push the client into a higher tax bracket. The client must have liquid assets to pay the tax on the higher tax base at a potentially higher tax rate. As for timing, despite a general sense that federal income taxes are unfair,[19] they are at historic lows.

To maximize the benefit of the conversion, it should be done when the client’s personal income taxes will be the lowest. This could be when the client is first retired but not yet receiving Social Security benefits so the client has lower taxable income than when the client was working, but it could also be in a year when the fair market value of the client’s traditional IRA drops significantly due to market volatility. However, converting after a significant market drop might not be ideal if the initial drop was followed by additional losses in the same year.[20]

In addition to choosing the proper timing for the conversion, one must also consider long-term policy risk, especially whether Congress will maintain the tax-exempt status of Roth IRAs. A historical precedent is Social Security: originally, benefits were “explicitly excluded from federal income taxation” until 1984, when “up to one-half of the value of the Social Security benefit was made potentially taxable income” by Congress.[21] Then in 1993, Congress decided to increase the taxable percentage to 85% for higher-income beneficiaries.[22] Caveat emptor.

4. Terminate Unneeded Non-Operating Private Foundation

With the rise of donor-advised funds, there has been a decline in the demand for the formation of non-operating (grant-making) private foundations. Much of my work related to private foundations is focused on restoring compliance after years of missed tax filings. This trend also highlights an important estate planning idea — properly terminating non-operating foundations that are no longer serving their intended purpose or are administratively burdensome to maintain.

A private foundation can be terminated in four ways, with two requiring the payment of taxes:[23]

  • Voluntary termination by notifying the IRS of the intent to terminate and paying a termination tax.

  • Involuntary termination for either willful repeated violations or willful and flagrant violation of the private foundation excise tax provisions and becoming subject to the termination tax.

  • Transfer of assets to certain public charities.

  • Or operating as a public charity for a continuous period of 60 months after giving appropriate notice.[24]

For most clients, the third option is the appropriate one. The private foundation simply distributes all of its net assets to a public charity with similar exempt purposes, which has been in existence for a continuous period of at least 60 calendar months immediately preceding such distribution.[25] Under this scenario, the private foundation does not have to give the IRS notice of its intent to terminate; it simply files a final tax return and terminates its existence with the state it was formed.[26] The termination of the unneeded foundation avoids ongoing compliance costs and eliminates the need for the client’s family to deal with the inevitable termination later.

5. Deal With Your Cryptocurrency

Cryptocurrency is no longer new, but compared to other assets, it is still relatively novel in estate planning. It does not easily fit in the category of administrable assets because even if left to someone through a will or a trust, it is impossible to access without the keys. Apparently, many have difficulty remembering their keys as reported by the New York Times article, “Lost Passwords Lock Millionaires Out of Their Bitcoin Fortunes” (published January 12, 2021):

[C]ryptocurrency’s unusual nature has also meant that many people are locked out of their Bitcoin fortunes as a result of lost or forgotten keys. They have been forced to watch, helpless, as the price has risen and fallen sharply, unable to cash in on their digital wealth.

Of the existing 18.5 million Bitcoin, around 20 percent — currently worth around $140 billion — appear to be in lost or otherwise stranded wallets, according to the cryptocurrency data firm Chainalysis. Wallet Recovery Services, a business that helps find lost digital keys, said it had gotten 70 requests a day from people who wanted help recovering their riches, three times the number of a month ago.[27]

In addition to the practical issue of accessing cryptocurrency, many owners still value the anonymity of their cryptocurrency holdings and are keeping their holdings to themselves. The IRS has focused on cryptocurrency over the past few years and is trying to force holders to properly report their income from cryptocurrency, which has further popularized it as an investment type,[28] as the IRS develops rules on reporting and tax treatment. For those holders who have resisted disclosure thus far, the IRS has a Voluntary Disclosure Program which significantly reduces the risk of criminal prosecution for nondisclosure.

As it becomes more mainstream, the number of individuals losing or forgetting their keys is bound to increase. The two best options appear to be providing the keys to a third-party fiduciary for safekeeping or storing the keys in tangible form in a safe place.[29] Both of these can risk exposing assets to dishonest individuals, but that is a risk shared by many other types of assets.

Estate planning — like investing — is a dynamic process. Changes in one’s personal life and financial situation, the economy, and the law are often outside of a person’s control but the individual’s reaction to those changes is not. In closing, I repeat The Serenity Prayer, “God, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to know the difference.”

[1] https://www.usatoday.com/story/news/politics/elections/2025/04/25/trump-100-days-changes-in-america/83042626007/, last visited May 20, 2025.

[2] Sun Tzu, The Art of War.

[3] On May 12, 2025, the House Republicans released the tax portion of the “One, Big, Beautiful Bill”, a budget reconciliation bill, which includes the permanent extension and limited modifications of the provisions of the Tax Cuts and Jobs Act of 2017. The bill proposes a permanent $15 million applicable exemption amount for individuals dying in 2026, which would be adjusted annually for inflation.

[4] https://www.federalreserve.gov/econres/scf/dataviz/scf/table/#series:Net_Worth;demographic:all;population:all;units:mean, last visited May 20, 2025.

[5] https://www.federalreserve.gov/econres/scf/dataviz/scf/table/#series:Net_Worth;demographic:all;population:all;units:median, last visited May 20, 2025.

[6] https://taxpolicycenter.org/briefing-book/how-many-people-pay-estate-tax#:~:text=Estate%20tax%20liability%20totaled%20$19.2,7%2C100%20and%204%2C000%20for%202023 (In 2022, when the applicable exclusion amount was $12.06 million roughly 7,600 federal estate tax returns were filed and roughly 3,900 of those were taxable.)

[7] A nonresident surviving spouse who is not a citizen of the United States may not take into account the DSUE amount of a deceased spouse, except to the extent allowed by treaty with the nonresident surviving spouse’s country of citizenship.

[8] https://www.irs.gov/pub/irs-pdf/i706.pdf, last visited May 20, 2025.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Asset freezing in the estate planning context means transferring an asset out of one’s estate at its fair market value on the date of transfer but with the expectation that the asset will appreciate significantly in the future.

[14] In a tumultuous market, marketable securities that have fallen in value are ideal gifts.

[15] The substance over form doctrine arose from the U.S. Supreme Court case, Gregory v. Helvering, 293 U.S. 465 (1935), where the Court announced that, “as a general rule, the incident of taxation depends on the substance rather than form of the transaction.”

[16] I.R.C. § 7701(o)(5)(A) defines the economic substance doctrine as “the common law doctrine under which … transaction[s] are not allowable if the transaction does not have economic substance or lacks a business purpose.” See also Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1352 (Fed. Cir. 2006) (“[T]he economic substance doctrine [requires] disregarding, for tax purposes, transactions that comply with the literal terms of the tax code but lack economic reality.”).

[17] https://www.irs.gov/newsroom/give-more-tax-free-eligible-ira-owners-can-donate-up-to-105000-to-charity-in-2024, last visited May 20, 2025.

[18] If the client takes a distribution from a traditional IRA that was converted to a Roth IRA within 5 years of January 1 of the year of the conversion, the client may incur a 10% early withdrawal penalty on the conversion amount in addition to the income taxes the client already paid for the conversion. Exceptions to the early withdrawal penalty include withdrawals of up to $10,000 for a first home purchase, withdrawals for a client who has become permanently and totally disabled, and withdrawals for qualified educational expenses.

[19] https://news.gallup.com/poll/659003/perceptions-fair-income-taxes-hold-near-record-low.aspx, last visited May 20, 2025.

[20] Previously, a Roth IRA conversion could be reversed or recharacterized in the year of conversion, but the ability to recharacterize a Roth conversion was eliminated by the Tax Cuts and Jobs Act of 2017. Conversions made on or after January 1, 2018, cannot be undone.

[21] https://www.ssa.gov/history/taxationofbenefits.html#:~:text=(A%20revision%20was%20issued%20in,subject%20to%20federal%20income%20taxes, last visited May 20, 2025.

[22] Id.

[23] I.R.C. § 507.

[24] https://www.irs.gov/charities-non-profits/private-foundations/termination-of-private-foundation-status, last visited May 20, 2025.

[25] I.R.C. § 507(b)(1)(A).

[26] https://www.irs.gov/charities-non-profits/termination-of-an-exempt-organization, last visited May 20, 2025.

[27] https://www.nytimes.com/2021/01/12/technology/bitcoin-passwords-wallets-fortunes.html, last visited May 20, 2025.

[28] https://red.msudenver.edu/2025/as-bitcoin-surges-irs-steps-up-oversight/#:~:text=As%20crypto’s%20popularity%20has%20grown,investigative%20work%2C%E2%80%9D%20Persichitte%20said, last visited May 20, 2025.

[29] https://www.actec.org/resource-center/video/understanding-cryptocurrency-in-estate-planning/, last visited May 20, 2025.

As previewed in our previous blog post, the Securities and Exchange Commission (SEC) hosted a roundtable on executive compensation disclosure on June 26, with panelists considering whether and to what extent the current executive compensation disclosure requirements for public companies should be reformed.

SEC Chairman Paul S. Atkins opened the roundtable by describing the current disclosure regime as a “Frankenstein patchwork of rules.” He set the stage for the roundtable as a first step in assessing whether the current rules achieve the SEC’s three-part mission of: (1) investor protection, (2) fair, orderly, and efficient markets, and (3) capital formation. Next, Commissioner Hester M. Peirce observed that the current rules have created a disclosure regime focused on complex details (the trees), detracting from the broader picture (the forest); Commissioner Mark T. Uyeda questioned whether certain SEC disclosure rules were implemented to “name and shame” executives in order to curb executive compensation; and in a written statement, Commissioner Caroline A. Crenshaw encouraged dialogue on current compensation trends, what disclosures are material to investors, and costs incurred by public companies and investors alike in presenting and utilizing the disclosures. Following introductory remarks, participants across three panels — including public company representatives, institutional investors, legal advisors, and compensation consultants — discussed the complexity of executive compensation disclosures, whether and how these disclosures are used by investors, whether the disclosures serve their original intent, and whether the cost and time necessary to prepare the disclosures are justified.

The first panel focused on the process surrounding executive pay decisions and how investors interpret and consider disclosure. Public company representatives emphasized the processes and challenges involved in designing executive incentives in an evolving landscape. Investors talked about the complexity of ascertaining certain compensation data from the disclosures, noting the need to piece together disclosures in order to analyze specific compensation items (such as the life cycle of a particular equity grant). Both sides acknowledged that simplification and clearer communication would benefit all stakeholders. One important theme that emerged and continued to thread its way through subsequent panels was a discussion of the materiality of certain information that is required to be disclosed; are disclosure requirements appropriate if the information is only considered important by a select number of investors?

In the second and third panels, attention turned to the evolution of disclosure rules implemented over the past two decades, including those arising from the Dodd-Frank Act of 2010, and the ways such rules have (or have not) benefitted investors and burdened public companies. Many panelists expressed their view that current SEC rules on certain aspects of the Summary Compensation Table, CEO pay ratio, disclosure of perks, and pay-versus-performance could benefit from recalibration. There was a call by certain panelists, particularly those representing public companies, for a return to “materiality” as the central disclosure standard and concern that the current regime results in the over-disclosure of salacious information that is not material to a party making an investment decision regarding a company. Investor representatives, however, cautioned against a wholesale rollback of disclosures that have increased transparency and accountability following lessons learned from past financial crises.

In case you missed it, you can access recordings of the roundtable here. At the same link, you can review comment letters that the SEC has received to date on this topic and submit your own views for the SEC’s consideration. The SEC has encouraged interested parties to submit comment letters as soon as possible.

On June 30, Governor Phil Murphy signed Bill A5804 into law, amending N.J.S.A. § 46:15-7.2-7.4; N.J.S.A. § 54:15C-1, and introducing significant changes to New Jersey’s realty transfer tax structure. These changes — effective July 1 — increase the supplemental fee to the realty transfer fee, commonly known as the mansion tax, and shift payment responsibility to sellers.

Key Changes Under the New Law 

1.  Increased Mansion Tax and Controlling Interest Transfer Tax Rates

The law establishes a tiered fee schedule for transfers exceeding $2 million:

  • 2% for transfers over $2 million but not more than $2.5 million.
  • 2.5% for transfers over $2.5 million but not more than $3 million.
  • 3% for transfers over $3 million but not more than $3.5 million.
  • 3.5% for transfers over $3.5 million.

Transfers between $1 million and $2 million remain subject to the existing 1% fee.

2.  Shift in Payment Responsibility to Sellers

Previously, buyers were responsible for paying both the supplemental fee and the controlling interest transfer tax. Under the new law, sellers are now responsible for these payments.

3.  Refund Opportunity for Sellers

The legislation provides a refund mechanism for sellers who paid amounts in excess of 1% of the consideration if:

  • The deed or transfer is recorded on or before November 15, 2025; and
  • The transfer was made pursuant to a contract fully executed before July 10, 2025.

Transactions Impacted

  • Commercial real property.
  • Residential real property.
  • Certain farm properties with residential structures.
  • Cooperative units.
  • Non-deed transfers involving a controlling interest in entities owning real property. 

We are ready to help you understand and navigate these significant changes to New Jersey’s realty transfer tax structure. Please contact the authors listed for assistance.

Courts have shown a growing skepticism toward plaintiffs’ use of short-seller reports to plead loss causation for securities claims. Recent decisions have increasingly dissected when a short-seller report will fail to survive attacks from a motion to dismiss. This article will address recent case developments across various circuits before addressing the key takeaways from this narrowing trend.

Click here to read the full article in Business Law Today.