On April 2, President Trump declared “Liberation Day” and unveiled a series of sweeping tariff measures aimed at addressing trade imbalances and foreign trade practices while boosting domestic manufacturing. Marking the occasion with a broad executive action under the International Emergency Economic Powers Act (IEEPA), President Trump issued an executive order, “Regulating Imports with a Reciprocal Tariff to Rectify Trade Practices that Contribute to Large and Persistent Annual United States Goods Trade Deficits” (Reciprocal Tariff Order), which imposes new tariffs on nearly all U.S. trading partners, including an elevated tariff rate on dozens of trading partners that run trade surpluses with the U.S. (Reciprocal Tariffs).
The global trade landscape is shifting rapidly, and businesses should closely monitor developments to assess the potential impact on their operations and supply chains.
Tariff Rates and Effective Dates
Starting April 5, a 10% tariff will be imposed across the board on all imported goods from almost all countries unless an exemption applies (10% Reciprocal Tariff). Such rates of duty shall apply with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. Eastern Daylight Time (EDT) on April 5, 2025, except that goods loaded onto a vessel at the port of loading and in transit on the final mode of transit before 12:01 a.m. EDT on April 5, 2025, and entered for consumption or withdrawn from warehouse for consumption after 12:01 a.m. EDT on April 5, 2025, shall not be subject to such additional duty.
Subsequently, on April 9, higher tariffs rates will take effect for 57 trading partners identified in Annex I of the Reciprocal Tariff Order that have significant trade surpluses with the U.S., even if the goods are imported under a free trade agreement (Country Specific Reciprocal Tariff). This rate applies to goods entered for consumption or withdrawn from a warehouse for consumption on or after 12:01 a.m. EDT on April 9, 2025, with the same exception for goods already in transit. These rates include the 10% baseline tariff and are not additive to it.
Annex III of the Reciprocal Tariff Order outlines the corresponding updates to the Harmonized Tariff Schedule of the U.S. (HTSUS) to align with the Reciprocal Tariff Order. On April 8, U.S. Customs and Border Protection (CBP) released operational guidance on the Reciprocal Tariffs to assist importers, including the application of additional duty rates, HTSUS Chapter 99 secondary classification requirements, HTSUS Chapter 98 exclusions, drawback applicability, and entry reporting requirements.
Tariff Stacking
The Reciprocal Tariffs are applied in addition to most existing duties, meaning they are layered on top of pre-existing tariffs, including general rates of duty, those imposed pursuant to Fentanyl/Migration IEEPA Orders (defined below), antidumping and/or countervailing duty orders, Section 301 of the Trade Act of 1974 (Section 301), and Section 201 of the Trade Act of 1974 (Section 201). For example, Chinese goods, which are already subject to a 20% additional tariff pursuant to Executive Order 14195, as amended by Executive Order 14228, now face an additional 34% reciprocal tariff. As a result, at a minimum, Chinese imports, which are not Exempt Goods (defined below) are subject to a combined duty rate of 54%, not including any additional tariffs imposed against China, such as Section 301 and/or Section 201 tariffs.
Mexico and Canada
The existing fentanyl and migration IEEPA-related tariffs issued under Executive Orders 14193, 14197, and 14231 with respect to goods from Canada, and Executive Orders 14194, 14198, and 14227, with respect to goods from Mexico (collectively, Fentanyl/Migration IEEPA Orders) will remain in effect, but, for the time being, Canada and Mexico are excluded from the Reciprocal Tariffs. Specifically:
- U.S.-Mexico-Canada Agreement (USMCA) -compliant goods — those that meet the USMCA’s rules of origin and other regulatory requirements — will continue to enter the U.S. duty free (i.e., a 0% tariff);
- Non-USMCA-compliant goods remain subject to a 25% tariff; and
- Non-USMCA-compliant “energy and energy resources” (as defined in Executive Order 14156) and potash imported from Canada will remain subject to a 10% tariff.
If the Fentanyl/Migration IEEPA Orders are lifted, USMCA-compliant goods will (barring any future change in these tariff policies) continue to receive preferential duty treatment (i.e., duty-free), but non-USMCA-compliant goods from Canada and Mexico, including energy products and potash, will instead become subject to a 12% reciprocal tariff.
Exempted Goods
The following goods are exempt from the Reciprocal Tariffs (collectively, Exempt Goods):
- Articles subject to 50 U.S.C. § 1702(b), such as postal communications, donations for humanitarian relief, accompanied baggage for personal use, and informational materials;
- Steel and aluminum articles subject to duties imposed pursuant to Section 232 of the Trade Expansion Act of 1962 (Section 232) and Proclamations 9704, 9705, 9980, 10895, and 10896;
- Automobiles and automobile parts subject to duties under Section 232 and Proclamation 10908;
- Copper, pharmaceuticals, semiconductors, and lumber;
- All articles potentially subject to future tariffs imposed pursuant to Section 232;
- Bullion;
- Energy and certain minerals not available in the U.S.;
- Goods from Cuba, Belarus, Russia and North Korea with which the U.S. does not maintain normal trade relations; and
- Any other articles delineated in Annex II of the Reciprocal Tariff Order
U.S. Content Reduction
The Reciprocal Tariff Order allows importers to benefit from reduced tariff rates on goods that contain at least 20% U.S.-origin content. If an imported good contains at least 20% U.S.-origin content—meaning 20% of its value comes from components produced or substantially transformed in the United States—the additional Reciprocal Tariff applies only to the non-U.S.-origin portion of the good’s value. This is designed to incentivize the inclusion of U.S.-origin components in goods imported into the U.S. CBP is tasked with collecting documentation regarding imported goods, including entry filings, to verify the value of U.S.-origin content in the good and determine if the good was “substantially finished” in the U.S.
Changes to Duty-Free De Minimis Treatment
President Trump took steps to end the de minimis program under 19 U.S.C. § 1321 that allows shipments worth $800 or less to enter the U.S. duty-free with minimal customs checks. Except for goods from China and Hong Kong, the de minimis treatment will remain available until the Secretary of Commerce notifies the President that “adequate systems are in place” to manage duty collection on these shipments.
Furthermore, President Trump signed a separate executive order (“Further Amendment to Duties Addressing the Synthetic Opioid Supply Chain in the People’s Republic of China as Applied to Low-Value Imports“) also on April 2, eliminating de minimis treatment for shipments from China and Hong Kong, effective May 2. All shipments from these locations, regardless of value, will be subject to applicable duties. Specific measures include a new postal duty rate of 30% of the shipment’s value or a minimum of $25 per item, increasing to $50 per item after June 1, 2025. Carriers must now report shipment details to CBP and maintain an internal carrier bond to ensure compliance with duty payments. These changes are expected to impact businesses reliant on e-commerce and low-cost imports from China, necessitating a reassessment of supply chain strategies. Within 90 days, the U.S. Secretary of Commerce will evaluate the effects of these new rules and decide whether to expand their application to include packages originating from Macau.
Duration of and Changes to Reciprocal Tariffs
The Reciprocal Tariffs will remain in effect until President Trump determines that the trade deficit resulting from nonreciprocal treatment has been satisfactorily addressed. The Reciprocal Tariff Order outlines specific scenarios where Reciprocal Tariffs can be modified. For example, if a U.S. trading partner retaliates against the U.S. by imposing additional import duties on U.S. exports or other measures, the President has the authority to increase the Reciprocal Tariffs. Conversely, if a U.S. trading partner takes significant steps to address non-reciprocal trade barriers and aligns more closely with the U.S. on economic and national security matters, the Reciprocal Tariffs may be reduced. Additionally, if U.S. manufacturing capacity and output declines further, the President may opt to increase the duties to protect domestic industries. Lastly, if the Reciprocal Tariffs fail to effectively resolve the overall trade deficit or address nonreciprocal trade arrangements, the U.S. Secretary of Commerce and the U.S. Trade Representative can recommend additional actions to modify the Reciprocal Tariffs.
International Responses
The sweeping trade measures have sparked immediate reactions from U.S. trading partners. China has responded, imposing a 34% tariff on all U.S. imports starting April 10, alongside export controls on certain “rare earth” products and sanctions on several U.S. companies, signaling a sharp escalation in this ongoing trade war. The EU, facing a 20% Reciprocal Tariff, is preparing countermeasures, while still hoping for negotiations to mitigate the impact. Israel, hit with a 17% Retaliatory Tariff despite preemptively scrapping its own tariffs on U.S. goods, is seeking to negotiate a cancellation or reduction of the assigned Retaliatory Tariff with the Trump administration. Other countries, such as Japan and South Korea, have expressed regret and concern, while India is assessing its options without any specific announced counterstrategy yet countries like the UK and Australia, facing a baseline 10% tariff, are opting for a more measured approach, emphasizing dialogue over immediate retaliation. These varied responses highlight a mix of defiance, strategic caution, and economic recalibration amid fears of a global trade war.
Legal Challenges
On April 3, 2025, a federal lawsuit was filed in the U.S. District Court for the Northern District of Florida challenging the IEEPA-based additional 20% tariffs on Chinese imports, issued under Executive Order 14195, as amended by Executive Order 14228. The plaintiff, a Florida-based small business importing materials from China, argues that these tariffs were illegally imposed under the IEEPA, claiming that only the Congress has the constitutional authority to impose tariffs, that IEEPA does not authorize the imposition of tariffs, and that the President unlawfully bypassed required procedures in the tariff-specific statutes by imposing these tariffs under IEEPA. It will be critical to watch this and other expected litigation challenging the validity of these IEEPA-based tariffs, as well as legislative efforts seeking to limit presidential authority in this area, as companies consider whether or how to invest in modified supply chains due to these tariffs.
Conclusion
This alert is intended only as a high-level summary of recent developments and is not a substitute for specific legal or tax advice. Things are rapidly changing by the day and hour, and our Tariff Task Force will do its best to provide timely and relevant updates as things progress. Please don’t hesitate to reach out to us with questions.
Published in Law360 on April 4, 2025. © Copyright 2025, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.
Massachusetts Attorney General Andrea Campbell has emerged as a significant figure in the landscape of consumer protection and corporate accountability. Her actions and initiatives have positioned her as a thought leader among state attorneys general, particularly in the context of national efforts to safeguard consumer rights.
Amid a widespread increase in businesses’ use of artificial intelligence and algorithmic decision-making systems, Campbell has taken multiple steps to address the implications of these technologies.
In 2024, she issued an advisory to provide guidance to developers, suppliers and users of AI, emphasizing their obligations under state consumer protection, anti-discrimination and data security laws. This advisory clarified that existing state laws apply to AI systems, ensuring that these technologies are used responsibly and transparently.
Campbell’s efforts highlight her commitment to mitigating the risks associated with AI while fostering innovation and protecting consumers from potential harms such as bias and lack of transparency.
Building on her proactive stance on AI, Campbell has also been actively involved in broader consumer protection efforts.
On Feb. 25, Sen. Elizabeth Warren, D-Mass., held a Senate forum addressing efforts to weaken the Consumer Financial Protection Bureau under the Trump administration and the designated head of the Department of Government Efficiency, Elon Musk. Among those invited by Warren to participate in the forum was Campbell.
Less than a week before participating in the forum convened by Warren, Campbell joined a coalition of 23 state attorneys general in filing an amicus brief[1] in the U.S. District Court for the District of Maryland in Mayor and City Council of Baltimore v. CFPB, arguing that defunding the CFPB would significantly harm consumers and diminish enforcement of federal consumer protection laws.[2]
These recent events are just the latest examples of Campbell’s commitment to consumer protection, as she continues to take on major enforcement actions in Massachusetts while also engaging in coordinated state attorney general efforts on a national scale.
Enforcement Actions and Regulatory Initiatives
Since being sworn in just over two years ago, Campbell has made consumer protection a cornerstone of her tenure. She has taken several other steps to strengthen existing protections for Massachusetts residents.
Consumer Protection Regulations
On March 3, Campbell “announced the adoption of nation-leading consumer protection regulations to prohibit ‘junk fees’ and help consumers understand the total cost of a product or service upfront, avoid unnecessary charges, and easily cancel unwanted costs related to trial and subscription offers.”[3]
Workers’ Rights
Campbell has also used her position to focus on workers’ rights in labor and employment issues. On Nov. 21, 2023, Campbell announced a series of citations against Quick Temp Inc., a temporary worker company, for violation of multiple wage and leave laws, totaling $1.3 million in restitution and civil fines.[4]
In October 2024, she “announced nearly $1 million in citations against five employers across five different industries for their failure to comply with Massachusetts’ sick time laws and other worker protections.”[5]
Environmental Protection
Campbell has prioritized environmental issues, continuing the 2018 Environmental Protection Division’s goal of combating pollution through the enforcement of the Federal Clean Water Act along with other federal environmental laws in Massachusetts.
In January 2025, the attorney general’s office announced two separate settlements resolving allegations of the Federal Clean Water Act, each resulting in settlements of $200,000, which will be used to fund projects to improve local water quality.[6]
Both cases — Commonwealth of Massachusetts v. All Steel Fabricating Inc. and Commonwealth of Massachusetts v. Williams Scotsman Inc. — and consent decrees were filed in the U.S. District Court for the District of Massachusetts.
Multistate Coalitions
Campbell has seemingly prioritized joining forces with other states to amplify efforts to protect consumers and enforce laws on a national scale. In this regard, Campbell has been an active part of several coalitions advocating for significant change and consumer protection at a national level.
On July 18, 2023, Campbell partnered with the Federal Trade Commission and attorneys general from all 50 states to pilot a new initiative focused on illegal telemarketing targeting operations responsible for billions of calls to U.S. consumers.[7]
As part of this bipartisan coalition, in May 2023, Campbell brought suit against a telecommunications company in State of Arizona v. Michael D. Lanks LLC, dba Avid Telecom, and Michael D. Lansky, individually, in the U.S. District Court for the District of Arizona, alleging, in part, violation of the Telephone Consumer Protection Act.[8]
In September 2024, Campbell led a coalition supporting a CFPB rule to regulate paycheck advance products.[9]
The coalition’s proposed rule clarified that relevant federal laws apply to these financial products, protecting consumers from harmful practices associated with the industry.
The group submitted a comment letter to the CFPB, which clarified that earned wage access products are a form of credit or loan under the Truth in Lending Act.
Most recently, Campbell joined a coalition of 23 state attorneys general to warn against efforts by the Trump administration and Elon Musk to defund and disband the CFPB.[10]
Campbell was quoted during the forum held by Warren addressing this issue, saying that “the CFPB serves as a beacon for consumer protection and economic justice, working to lower costs, alleviate student debt, and more. They have been an important partner to my office as we pursue consumer protection cases on behalf of Massachusetts residents.”
These multistate coalitions and advocacy efforts present as a strategic decision by Campbell’s office to work with other national leaders and push back against the Trump administration and Musk’s DOGE. Beyond these coalitions, she has taken additional action to stand up to the administration and advocate for the CFPB and consumer protections.
Response to DOGE and CFPB Changes
On Feb. 7, partnering with 19 other attorneys general, Campbell filed a lawsuit, State of New York v. Donald J. Trump, in the U.S. District Court for the Southern District of New York, alleging that the Trump administration illegally provided Musk and DOGE unauthorized access to the U.S. Department of the Treasury‘s central payment system.[11]
Campbell commented in a public statement on Feb. 7 that “[t]his lawsuit is a fight to hold the President accountable to the rule of law while protecting the privacy of our residents and the flow of federal dollars to the Commonwealth.”[12]
On Feb. 8, the coalition successfully obtained a temporary restraining order blocking the Trump administration from giving DOGE access to this information and ordering them to immediately destroy any copies they had already obtained.[13]
Subsequently, on Feb. 21, a judge granted the coalition’s motion for a preliminary injunction, barring the government from allowing unauthorized government employees such as Musk and DOGE to access the Treasury’s central payment system while the lawsuit proceeds.[14]
More recently, during the CFPB forum held by Warren on Feb. 25, Campbell was asked to describe the state tools and laws that Massachusetts has to protect consumers, and she said, “One is our ability to go to court to file complaints on behalf of consumers … we have the ability to file legislation. In Massachusetts, we’re actively reviewing proposed regulations related to junk fees … we have the ability to do consumer outreach and direct advocacy.”
Campbell has demonstrated her commitment to consumer protection and continues to provide reassurance that she is not backing down.
Conclusion
Through her robust enforcement actions in Massachusetts and strategic collaborations with other state attorneys general, Campbell has established herself as a thought leader for consumer protection and corporate accountability.
The ongoing efforts to address significant issues at both state and national levels underscore her role as a key player in the national debate over fair markets and consumer safeguards.
[1] https://www.mass.gov/news/ag-campbell-joins-multistate-coalition-to-defend-consumer-financial-protection-bureau.
[2] https://www.mass.gov/doc/cfpb-amicus/download.
[3] https://www.mass.gov/doc/junk-fee-regulations-940-cmr-3800-0/download.
[4] https://www.mass.gov/news/ag-campbell-issues-over-13-million-in-citations-against-boston-based-quick-temp-and-owner-for-wage-sick-time-and-records-violations.
[5] https://www.mass.gov/news/ag-campbell-announces-nearly-1-million-in-citations-against-five-employers-for-sick-time-and-other-violations.
[6] https://www.mass.gov/news/attorney-generals-office-announces-settlements-with-facilities-in-north-grafton-west-bridgewater-and-salisbury-over-clean-water-act-violations?_gl=1*1hhop0h*_ga*MTMwMDI5NTExMy4xNzQwMjQ2NTQ4*_ga_MCLPEGW7WM*MTc0MDQwNTkyOC4zLjEuMTc0MDQwNjQ2OS4wLjAuMA.
[7] https://www.mass.gov/news/attorney-general-campbell-joins-federal-trade-commission-and-attorneys-general-across-the-country-to-announce-enforcement-sweep-of-illegal-telemarketing-calls.
[8] https://www.mass.gov/news/ag-campbell-sues-avid-telecom-for-illegal-robocalls.
[9] https://www.mass.gov/news/ag-campbell-leads-multistate-effort-to-protect-consumers-from-harmful-practices-of-predatory-paycheck-advance-services?_gl=1*ohumhn*_ga*MTk4MzkwMjI2NC4xNzQwMzY0MDUz*_ga_MCLPEGW7WM*MTc0MDYwNjY1My4zLjEuMTc0MDYwNjgzOS4wLjAuMA.
[10] https://www.mass.gov/news/ag-campbell-joins-multistate-coalition-to-defend-consumer-financial-protection-bureau.
[11] https://www.mass.gov/news/ag-campbell-challenges-doges-unauthorized-access-to-americans-private-data.
[12] https://www.mass.gov/news/ag-campbell-challenges-doges-unauthorized-access-to-americans-private-data.
[13] https://www.mass.gov/news/ag-campbell-and-coalition-secure-court-order-stopping-elon-musk-and-doge-from-accessing-sensitive-and-private-information.
[14] https://www.mass.gov/news/ag-campbell-and-coalition-secure-court-order-stopping-elon-musk-and-doge-from-accessing-sensitive-and-private-information.
A recent federal court decision highlights the delicate balance between U.S. Food and Drug Administration (FDA) guidance and trade dress protections for drugs administered in a tablet or capsule form. Last month, a district court issued a preliminary injunction against a competing generic to the cardiovascular drug Entresto, after finding that the generic pill’s size, shape, and color were likely to violate Entrestro’s trade dress.
FDA guidance recommends similarities in size, shape, and other traits between generics and their branded counterparts to promote patient safety, compliance with drug regimens, and other considerations. But these recommendations are at odds with trade dress laws, leaving generic manufacturers walking a regulatory tight rope and branded drug manufacturers seeking to protect their established goodwill in the market.
Here are some considerations for generic and branded manufacturers in light of this latest ruling.
Functionality
While the overall look and feel of a pill are potentially eligible for trade dress protection, this protection is only available for the pill’s nonfunctional features. This requirement is designed to reduce the possibility of a single manufacturer monopolizing a useful pill feature to gain an unfair competitive advantage. Functional features excluded from trade dress protection are those that are essential to the use or purpose of the drug or impact its cost or quality.
However, the functionality inquiry is a flexible one, and features such as size, shape, color, coating, and taste could either be nonfunctional or functional depending on the facts and circumstances of each particular case.
To the extent manufacturers wish to pursue trade dress protections for a drug, they should consider incorporating multiple nonfunctional features into their dosage designs. These features could include a combination of unique traits, such as shape and color.
Patient recognition of generic’s dosage form that is similar to the branded equivalent could improve patient drug regimen compliance and reduce medication errors. However, generic manufacturers should not assume that patient recognition always indicates functionality, or that it is necessary for a generic dosage to emulate the overall look and feel of a branded tablet or capsule. Whether patient recognition is functional could potentially depend on a multitude of factors, such as whether the target patient is more vulnerable to pill errors (e.g., children, elderly) or if there is a need to distinguish doses (e.g., a typical regimen requires the patient to take multiple pills of varying doses each day).
From a risk mitigation perspective, both branded and generic manufacturers should document and evaluate the functionality or nonfunctionality of all tablet or capsule features before they are incorporated into the applicable dosage form.
Secondary Meaning
In order for a brand drug manufacturer to claim trade dress protection, the pill’s trade dress must also have “secondary meaning.” This means the public must associate the tablet or capsule’s design, packaging, or overall appearance with a particular source or brand.
Size, shape, and color can contribute to secondary meaning, but are not always enough on their own. Additional factors that may contribute to the secondary meaning analysis, include:
- Market Exclusivity. Courts will often consider the length of use and exclusivity of trade dress when determining whether secondary meaning has been established. Branded pharmaceutical drugs from large companies may have an advantage in establishing this factor due to the length of regulatory exclusivity their products often have in the market.
- Consumer Surveys. Customer surveys and testimony supporting recognition of the drug can potentially provide direct evidence of secondary meaning. However, it’s important to consider that for purposes of secondary meaning, the ultimate “consumer” is generally a prescriber or pharmacy, not the patient.
- Promotional Efforts. Drug manufacturers’ use of a pill’s trade dress in their promotional efforts with prescribers is another factor that may be considered when evaluating whether the pill’s features have secondary meaning.
Likelihood of Confusion
Even if the tablet or capsule features at issue are nonfunctional and secondary meaning of the trade dress is established, there is no trade dress infringement unless it is determined there is a likelihood that a prescriber will confuse the generic with its branded counterpart. This is often evaluated by courts with a multifactor test.
It’s important to note that many of the factors used in the functionality and secondary meaning analysis can contribute to a court’s evaluation of likelihood of confusion. For example, a generic could argue that the similar traits are a function of FDA regulatory considerations, but if functionality is not ultimately established, a court could potentially attribute the generic’s intention to develop a similar dosage form appearance to an intent to copy — a factor considered in the likelihood of confusion analysis.
Conclusion
Navigating the complex interplay between FDA regulations and trade dress protections requires careful consideration and strategic planning. Generic manufacturers must balance the need to comply with regulatory guidelines while avoiding potential trade dress infringement claims. On the other hand, branded drug manufacturers must remain vigilant in protecting their market position and the goodwill they have developed in their products, including from any distinctive trade dress embodied in tablet or capsule design.
The U.S. Securities and Exchange Commission (SEC) has reportedly announced internally a major reorganization of its enforcement and exams divisions. This restructuring, effective April 9, 2025, was detailed in a staff memo from acting SEC Chairman Mark Uyeda that was seen and reported by Reuters. According to Reuters, an SEC spokesperson confirmed the changes, stating that they are “intended to improve efficiency, management, and oversight of the Divisions.”
Key Changes in the Reorganization
According to the memo, the enforcement staff will now report to new deputy directors based on geographic regions — West, Northeast, and Southeast — as well as a deputy director for specialized units. As of now, the SEC has one deputy director for the enforcement division, with 10 Regional Offices across the country where staff report to a director of each office.
Additionally, exam staff in the Regional Offices will report to new associate directors, with the apparent goal to streamline the reporting structure and address management challenges. Chairman Uyeda highlighted that the current structure, with over 40 direct reports to the enforcement director, is unsustainable.
Reasons Behind the Reorganization
The reorganization comes amid a period of significant change and challenges for the SEC. The agency is experiencing an exodus of staff, with hundreds accepting resignation offers as part of broader efforts by President Trump to downsize government agencies.
Chairman Uyeda cited management weaknesses as a contributing factor to the closure of the Salt Lake City, Utah office last year. This Regional Office was shut down following a high-profile failure in a case against a cryptocurrency firm, which led to a judge censuring the agency.
Impact on Regional Directors
Reuters had previously reported that the SEC was planning to eliminate the Regional Director position. This staff memo confirms the reassignment of nine regional directors into new roles. Despite these changes, the SEC’s Regional Offices will still have directors to handle operations.
Karl Zielaznicki, a partner at Troutman Pepper Locke, discusses a Danish court’s recent decision to uphold an injunction against popular U.S. shoe brand Steve Madden, after finding its shoe design infringed on the copyright of Danish brand, Ganni. This outcome is contrary to a German court’s finding earlier this year that Birkenstock’s well-known shoe design was not a work of art entitled to copyright protections, which Karl commented on in a recent NBC News Interview.
Dupes of original branded items present significant intellectual property (IP) challenges in the fashion industry. Not all fashion products are entitled to IP protection and perceived similarities between products do not always violate existing IP rights. This can make it difficult to prevent competitors from capitalizing on a brand’s popularity by developing similar “dupe” products. However, companies that draw inspiration from popular brands can still find themselves in hot water if they aren’t cognizant of when a dupe violates IP laws.
In light of latest outcome in Steve Madden’s case, here are some key IP considerations for dupe products in the fashion industry:
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Not All Fashion Products Are an Applied Art Subject to Copyright Protection. In order to obtain copyright protection, a product must be a “work of art” under applicable copyright law. This can include a “work of applied art,” which is when artistic elements are incorporated into a practical object and the artistic elements are separate from the object’s functionality. For example, red soles on a pair of shoes or a monogram on a handbag.
However, what is original and creative enough to warrant copyright protection is often in the eye of the factfinder in the case at hand. In light of this subjectivity, brand owners should take steps to document their creative process and seek copyright registration to strengthen their copyright claims when seeking enforcement of their IP rights.
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Consider Trade Dress Protections for Additional IP Coverage. While copyright protections can have limitations, the overall look and feel of a fashion brand’s product can potentially be protected under U.S. trademark law as trade dress. However, as we discussed in our last article, if there is no likelihood of consumer confusion with a dupe product, then there can be no claim of trade dress infringement. This means brand recognition, the strength of a mark, and the possibility of confusion — particularly in other countries and regions — is important to consider and document.
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Multijurisdictional IP Rights Are Essential to IP Strategy. In an ever-growing, global e-commerce market, brands are exposed to even greater risk of copycat products. It is essential to understand the how multijurisdictional IP rights will interact and how to effectively enforce them. Active monitoring and enforcement of IP rights in the U.S. and abroad is also essential to ensure there is no brand dilution that may undermine available IP protections.
Labor + Employment Workforce Watch is a guide to the employment law developments most likely to impact your business. The Troutman Pepper Locke Labor + Employment Team represents employers in the most sensitive workplace matters, enabling our clients to concentrate on their core business operations. Our team is adept at handling and managing labor and employment issues on national, international, and local levels. Recognized as a leading law firm by Chambers USA, our attorneys provide comprehensive advice on every type of employment issue a company may encounter, at every stage of the employment life cycle.
In This Issue:
Navigating DEI in a Shifting Legal Landscape
By Tracey E. Diamond and Emily E. Schifter
Workplace diversity, equity, and inclusion (DEI) programs face more scrutiny than ever in light of President Trump’s recent executive orders regarding DEI policies and programs across the public and private sectors, recent Supreme Court decisions, Equal Employment Opportunity Commission guidance on DEI initiatives, and the rise of “reverse” discrimination claims. Here are some key takeaways from the current legal landscape and what employers should be thinking about regarding their DEI programs.
Key Immigration Changes Under President Trump 2.0
Since day one in the Oval Office, President Trump has made sweeping immigration policy changes with a focus on tightening the U.S. borders and deporting undocumented migrants. While these changes undoubtedly affect individuals the most, they also impact U.S. businesses. Here are the top three areas of change impacting employers.
New Leaders, New Focus: Navigating EEOC Updates
By Jeffrey M. McPhaul and Amanda McCloskey
Since taking office, President Trump has issued a flurry of terminations and appointments at different administrative agencies, including the Equal Employment Opportunity Commission (EEOC).
As many expected, President Trump quickly appointed Commissioner Andrea Lucas as the Acting Chair of the EEOC. However, President Trump then fired two Democratic members of the EEOC, Commissioners Charlotte A. Burrows and Jocelyn Samuels. These terminations left the EEOC without a three-member majority (or “quorum”). As a result, the EEOC is limited in its ability to implement significant, immediate change, such as issuing, modifying, or revoking formal legal guidance.
2025 NLRB Forecast: What Employers Should Expect Under President Trump’s Administration
By Paul G. Nason and Aaron S. Nava
On January 27, 2025 — seven days after he was sworn in — President Trump fired Gwynne Wilcox, a Democratic member, and former Chair of, the National Labor Relations Board (“NLRB” or the “Board”). Although Wilcox’s term was not set to expire until August 27, 2028, President Trump became the first U.S. president to terminate a sitting member of the Board. The next day, January 28, the NLRB announced that President Trump also terminated Jennifer Abruzzo, President Biden’s General Counsel of the NLRB (“GC Abruzzo”). President Biden had terminated GC Abruzzo’s predecessor, Peter Robb, in January of 2021. On February 3, 2025, President Trump appointed William B. Cowen as Acting General Counsel of the NLRB (“Acting GC Cowen”).
Feeling Competitive: The Reasonableness of Forfeiture-for-Competition Provisions
By Lori A. Basilico and Jina Davidovich
In 2024, employers rushed to track the twists and turns of the Federal Trade Commission’s (FTC) noncompete ban, which attempted to limit the enforceability of agreements that restrict employees from working for a competitor following employment. Though the FTC’s ban has since fizzled out, the commotion around noncompetes also led to conversations about “forfeiture-for-competition” clauses — a similar, but distinct type of agreement.
Labor and Employment Developments in California in 2025
By Brian Dierzé
California often finds itself at the forefront of labor and employment law, with changes affecting employers each year. This year is no different. In 2025, employers can expect a variety of impactful changes to the legislative scheme in California, including five noteworthy labor and employment developments that California employers should be ready for, plus Private Attorneys General Act (PAGA) reforms that provide opportunities for employers to reduce their exposure to penalties for alleged Labor Code violations.
Workplace Investigations – One Size Does Not Fit All
Over the last few years, employers have faced new and expanded obligations under state and federal employment laws relating to prohibition of discrimination, harassment, and retaliation in the workplace. These changes stem from agency regulations and opinions, such as the Equal Employment Opportunity Commission’s (EEOC) shift on workplace guidance for sexual harassment, newly enacted state laws, including the expansion of protected classes, and changes to judicial review of employment claims (e.g., case law relaxing the harm standard for discrimination).
What’s Happening?
Under the Department of Justice’s (DOJ) “Preventing Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons” rules (the Rules), allowing access outside the United States to certain types of sensitive personal data involving “countries of concern” may be restricted or prohibited beginning on April 8. See our previous advisory for more detail.
Who May Be Impacted?
These Rules will apply to a wide variety of organizations that engage in “covered data transactions” involving China, Russia, Iran, Cuba, Venezuela, or North Korea, or “covered persons” linked to those countries.
The Rules also apply to “data brokerage” activities involving covered data with no link to any of those countries or persons. Data brokerage is defined very broadly as “the sale of data, licensing of access to data, or similar commercial transactions, excluding an employment agreement, investment agreement, or a vendor agreement, involving the transfer of data from any person (the provider) to any other person (the recipient), where the recipient did not collect or process the data directly from the individuals linked or linkable to the collected or processed data.”
What Is Covered Data?
1. In a 12-month period, data collected about or maintained on:
a. Human genomic data: more than 100 U.S. persons;
b. Other human `omic data: more than 1,000 U.S. persons;
c. Biometric identifiers: more than 1,000 U.S. persons;
d. Precise geolocation data: more than 1,000 U.S. devices;
e. Personal health data: more than 10,000 U.S. persons;
f. Personal financial data: more than 10,000 U.S. persons;
g. Covered personal identifiers: more than 100,000 U.S. persons; or
h. Combinations of the above meeting the lowest applicable threshold.
2. Government-related data, regardless of volume, including either:
a. Precise geolocation data for any location within any area enumerated on the Government-Related Location Data List in § 202.1401; or
b. Covered personal identifiers, precise geolocation data, biometric identifiers, human `omic data, personal health data, personal financial data, or any combination thereof, marketed as linked or linkable to current or recent former employees or contractors, or former senior officials, of the U.S. government.
Are My Existing Compliance Programs Enough?
Having a robust data governance program will help, but there are material differences between these new DOJ Rules and existing data protection laws. Similarly, these Rules do not look or act like existing export controls or sanctions regimes. These DOJ regulations are premised on national security concerns and will require a unique and additive compliance approach.
Can It Wait?
No. The Rules take effect on April 8. The Trump administration is focused on national security concerns with China and other “adversaries” covered by these Rules. We expect aggressive enforcement to begin this year.
What Happens If We Don’t Comply?
These are national security rules with strict civil and criminal penalties, based on the same statutory penalty structure that applies under U.S. economic sanctions. This can include large fines (civil penalties of up to $368,136 per violation or twice the amount of the transaction involved; and criminal fines up to $1 million per violation) and imprisonment up to 20 years. The National Security Division prosecutors enforcing these Rules will likely take an aggressive approach to penalties based on their mandate. Because these penalty amounts apply per violation, they can be multiplied into very large penalties.
What Can We Do?
Assessing whether and how the Rules apply to your organization is the first step. Our cross-functional national security and cyber/privacy groups can assist your company in understanding its obligations by helping you get started with a scope review for a fixed fee. This includes a set of questionnaires and an initial consultation about the Rules and how to conduct this analysis. We are also available to guide your organization through the full scope review, as well as additional compliance, documentation, or implementation/remediation steps, based on the outcome of your scope review.
In 2024, employers rushed to track the twists and turns of the Federal Trade Commission’s (FTC) noncompete ban, which attempted to limit the enforceability of agreements that restrict employees from working for a competitor following employment. Though the FTC’s ban has since fizzled out, the commotion around noncompetes also led to conversations about “forfeiture-for-competition” clauses — a similar, but distinct type of agreement.
Unlike a noncompete, which prohibits an employee from competing, a forfeiture-for-competition provision allows the terminating employee to work for a competitor (i.e., compete), but the employee will forfeit any post-employment compensation and benefits which were conditioned upon compliance with the non-compete, whether or not such benefits have already been paid. In other words: you can choose to compete, but it may cost you. This is sometimes referred to as the “employee choice doctrine.”
In many states, courts assess noncompetes under a reasonableness standard — meaning, if the agreement is reasonable under applicable state law considerations, it is enforceable. For years, courts have grappled with the appropriate standard for forfeiture-for-competition clauses. Should a reasonableness standard also apply?
In 2024, the Delaware Supreme Court declined to extend the reasonableness standard to a forfeiture-for-competition clause contained in a limited partnership agreement where all parties were sophisticated and experienced in contract law. This year, in January, the U.S. Court of Appeals for the Seventh Circuit likewise ruled in LKQ Corporation v. Rutledge, applying Delaware law, that forfeiture-for-competition clauses are not subject to judicial review of reasonableness (as is typically utilized for analysis of noncompetes), even if the parties are unsophisticated.
In LKQ, a former plant manager received restricted stock units (RSU) subject to a forfeiture-for-competition provision. The company later attempted to claw back the employee’s RSUs after he resigned and began working for a competitor. The employee argued the clawback was unreasonable and unenforceable. Relying on the 2024 Delaware ruling, the company argued that the reasonableness standard did not apply. Siding with the company, the Seventh Circuit held that, under Delaware law, forfeiture-for-competition provisions are not subject to a reasonableness review, regardless of the type of agreement at issue (e.g., partnership agreement, RSU agreement, or otherwise) or the sophistication of the parties involved. Importantly, the court left room for a potential exception to this rule where a provision is “so extreme in duration and financial hardship that it precludes employee choice by an unsophisticated party.”
Though not all states recognize the employee choice doctrine, agreements subject to the Delaware law may include forfeiture-for-competition provisions as a possible alternative to noncompete agreements, with, potentially, a greater chance of enforceability against employees and a lower standard of review by the courts. Following the decision in LKQ, other courts (and other states) may take up similar questions in the future to further flesh out the enforcement considerations for forfeiture-for-competition clauses, such as the adequacy of supporting consideration for such clauses, the enforceability of these provisions against an employee who was involuntarily terminated, or the scope of any exceptions. In the meantime, employers should review their agreements containing employee restrictions to ensure the greatest chance of enforceability under applicable state law.
Welcome to the first edition of Troutman Pepper Locke’s alumni newsletter! We are excited to introduce our alumni relations team and share messages from firm leaders, upcoming event dates, alumni spotlight interviews, and recent alumni moves.
A Message From Firm Leaders
As we wrap up the first quarter of 2025 as Troutman Pepper Locke, we are deeply grateful for your continued trust and partnership. We are pleased to share highlights from the past few months as well as note upcoming events that are taking place across our offices.
We recently welcomed six lateral partners to the firm: Peter Leary (White Collar Litigation and Investigations), David Navetta (Privacy and Cyber), Lu Reyes (RISE), Mahnvir Singh (Bankruptcy and Restructuring), Dustin Till (Energy Regulatory), and Daniel Valenti (Real Estate). We are thrilled to have them as part of our team.
We look forward to seeing many of you at our alumni receptions and Continuing Legal Education sessions. In June, we will launch our annual firm-wide Week of Service, where attorneys and business professionals will volunteer on behalf of many deserving organizations within our communities. You can learn more about upcoming events and other firm-related updates throughout this newsletter.
As we move forward, our focus will remain on our clients and our people. We will continue to provide quality lawyering and excellent service while fostering a high-performance culture that emphasizes teamwork and mutual respect.
Looking forward to staying connected.
Tom, Amie, David, and Ashley
Alumni Relations at Troutman Pepper Locke
Allow us to (re)introduce ourselves! Our alumni relations team of dedicated professionals is committed to making staying in touch with your former colleagues, mentors, and friends simple and rewarding. We are proud to offer a variety of social and professional events, CLE and industry programs, and opportunities to celebrate alumni journeys and successes.
In the spirit of this new season at the firm, we invite you to spring into action and take advantage of what your expanded alumni network has to offer!
Plant New Seeds: Just as spring is a time for planting new seeds, consider this season an opportunity to build new connections with attorneys and alums across the firm. Visit the firm’s website to:
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learn more about the firm’s practices
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find new connections using the attorney directory
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follow our Insights page for industry news, publications, podcasts, and other programs
Embrace Growth and Nurture Your Network: Spring is synonymous with growth and renewal and, like tending to a garden, nurturing your professional relationships is essential. Join our LinkedIn alumni page and follow the firm across social platforms to:
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reconnect with former colleagues and expand your network to include alums across legacy firms
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participate in discussions around meaningful content
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celebrate successes, support efforts, and build strong and reliable support systems
Spring Cleaning: There is something energizing about a fresh start, and we have certainly been feeling that buzz around the firm. This is a great time to review and update your professional bios, social profiles, and development plans to identify how relationships at the firm could help you:
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enhance or advance your business or professional development goals
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engage in community and professional groups and activities
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build best practices and gain industry knowledge
Whether our alums retire from the firm or leave for another opportunity, they remain valued members of our community. This is an exciting time for the firm and our alumni relations team, and we look forward to hearing from you!
Clare, Erin, and Kayla
Alumni Spotlight
We caught up with Kevin Coleman and Jennifer Parnell to see what they most enjoy about their current roles and how the time they spent at the firm continues to serve them well.
2025 Alumni Receptions
We are thrilled to be hosting in-person receptions throughout the year, so please mark your calendars!
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Atlanta – Thursday, April 3
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Washington, DC – Thursday, April 24
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Boston – Thursday, May 8
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Richmond – Thursday, May 22
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Chicago – Thursday, June 5
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Houston – Thursday, September 25
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Dallas – Wednesday, October 8
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New York – Wednesday, October 15
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Philadelphia – Thursday, October 16
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Virginia Beach – Fall 2025
For firm and alumni attorneys affiliated with another office but in town on an event date, we’d love to see you! Email alumni@troutman.com and we’ll gladly add you to the guest list.
Alumni Survey
To better understand your experiences and gather valuable insights, we invite you to complete a brief five-minute survey. Your feedback will help us enhance the programs, events, and resources that matter most to you. We appreciate your time and look forward to hearing from you!
Please click here to complete the survey.
Getting to Know Troutman Pepper Locke
Did you know…
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Troutman Pepper Locke’s historical roots trace back to 1887.
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The firm’s ability to leverage cutting-edge technology, like our Generative AI assistant, Athena,enhances our legal services, improves client outcomes, and keeps us at the forefront of innovation across the legal landscape.
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Troutman Pepper Locke continues to dedicate substantial resources to pro bono work and remains committed to community service initiatives like The Pepper Center for Public Service.
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The firm is now more than 1,600 lawyers strong.
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Our national and global presence spans more than 30 offices.
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There are more than 7,500 distinguished attorneys in the alumni network.
Click here to update your contact information and ensure you receive invitations to events, programs, and communications from the alumni team.
As the saying goes, “There are no strangers here; only friends you haven’t met yet.” You have many new friends to meet through Troutman Pepper Locke’s alumni network, and we’re excited to see this community continue to grow!
Upcoming Programs and CLE Opportunities
On-Demand CLE From Troutman Pepper Locke
Troutman Pepper Locke is pleased to share with our alums an innovative, on-demand CLE portal.
You can visit www.troutmancle.com for access to free recorded content and free registration for live webinars presented by Troutman Pepper Locke attorneys.
Simply add programs of interest to your cart and checkout as you would an online store. Communications about the program, including PINs for access and CLE certificates, will be sent to the email address you provide during checkout.
Please note that you may need to work with your IT professionals if this site is initially flagged by your cybersecurity software.
Contact our CLE management team with any questions, and we hope you enjoy using this new tool!
Free Fridays: Practicing Law Institute CLE Offerings
As part of the firm’s membership, we are happy to provide CLE offerings from PLI to friends of the firm. If you would like to be included in our Free Friday PLI email distribution, please contact Clare Roath.
Well-Being Week in Law
May 5-9, 2025
According to the Institute for Well-Being in Law (IWIL), the social and professional connections we encourage are good for you in so many ways! The 2025 theme for Well-Being Week in Law is The Social Rx: Boosting Well-Being with Connection.
Each day of Well-Being Week in Law will focus on a specific dimension of well-being and highlight how social connections can bolster them. Throughout the week, IWIL will share resources, stories, and actionable ideas to help build thoughtful practices and meaningful connections.
Click here for additional details about Well-Being Week in Law, mark your calendars, and reach out if we can facilitate any connections among our alumni and attorney communities.
Alumni on the Move
Click here to see what some of our alums are doing now.
Be sure to share with us any recent moves, new roles, promotions, or accomplishments you or your alumni colleagues have achieved — we’d love to include details in our next newsletter!
Firm News
Troutman Pepper Locke Officially Launches
Chambers Global Guide 2025 Recognizes Troutman Pepper Locke
Troutman Pepper Locke Earns 2025 JD Supra Readers’ Choice Awards
Let’s Stay Connected
Register to receive invitations and communications
Our team published new content and podcasts to the Consumer Financial Services Law Monitor throughout the month of March. To catch up on posts and podcasts you may have missed, click on the links below:
Auto Finance
Texas Senate Bill 1736 Proposes Allowing Convenience Fees for Electronic Motor Vehicle Payments
Banking
FDIC Turns a New Page on Banks’ Engagement in Crypto-Related Activities
FHFA Director Pulte Terminates Mortgage-Related Special Purpose Credit Programs for GSEs
OCC Clarifies Bank Authority to Engage in Certain Cryptocurrency Activities
Consumer Financial Protection Bureau (CFPB)
Court Orders CFPB to Reinstate Employees and Resume Operations; CFPB Promptly Files Appeal
CFSA Attempts to Renew Small Dollar Lending Rule Litigation in Supreme Court Petition
Credit Card Late Fee Rule Litigation: CFPB Indicates “Resolution is Feasible”
Cryptocurrency + FinTech
The SEC Weighs In on Meme Coins
Debt Buyers + Collectors
Fourth Circuit Issues Ruling on Furnisher’s Duty to Investigate Legal Disputes Under FCRA
Regulatory Enforcement + Compliance
Arkansas Passes Earned Wage Access Services Act
FCC “One-to-One Rule” Case: States File Amicus Brief in Support of Rehearing
Trump Fires the Two Democratic FTC Commissioners: What This Means Going Forward
Utah Legislature Passes Earned Wage Access Services Act
Ninth Circuit Rejects Plaintiff’s Attempt to Contest Consolidation of Arbitration Claims
Podcasts
The Consumer Finance Podcast – Early Days of the Trump Administration: Impact on the CFPB
The Consumer Finance Podcast – 2024 in Review: Major Debt Collection Trends and 2025 Outlook
The Crypto Exchange – Navigating 2025: the SEC’s Evolving Role in Cryptocurrency Enforcement
FCRA Focus Podcast – 2024 Credit Reporting Review: Impactful Changes and Future Forecast
Moving The Metal – Through the Crystal Ball: What’s Next for Auto Finance
Moving The Metal – Requiem for the Rules: The Rise and Fall of the Junk Fee and CARS Rules
Payment Pros Podcast – Virtual Currency Regulations: Key Insights for the Payments Industry
Payments Pros Podcast – CFPB’s Inquiry Into Payments Privacy
Newsletters
Weekly Consumer Financial Newsletter – Week of March 24, 2025
Weekly Consumer Financial Newsletter – Week of March 17, 2025
Weekly Consumer Financial Newsletter – Week of March 10, 2025
Weekly Consumer Financial Newsletter – Week of March 3, 2025