While many commentators were wondering when the Supreme Court would start issuing opinions, the backlog of argued cases now being substantial, today is their day.
The Supreme Court is back in live session, and so is this blog.
Our colleagues Erik W. Weibust, Peter A. Steinmeyer, and Stuart M. Gerson co-authored an article in the Legal Backgrounder, published by the Washington Legal Foundation, titled “After 200+ Years Under State Law, FTC Proposes to Sweep Away All Noncompetes in Unauthorized Federal Power Grab.”
Following is an excerpt:
For over 200 years, the regulation of noncompetition agreements (“noncompetes”) has been entirely the province of state law. Forty-seven states currently permit noncompetes, and the most recent state to ban them was Oklahoma in 1890. Yet the Biden Administration and its activist Federal Trade Commission (“FTC”) Chair want to do exactly that nationwide. Especially given a recent decision of the United States Supreme Court, the FTC’s jurisdiction in the matter is subject to serious question. And whatever the agency attempts to promulgate should be challenged both on jurisdictional and substantive bases. …
Shortly after his inauguration in 2021, President Biden issued an executive order entitled “Promoting Competition in the American Economy,” which “encourage[d]” the FTC to “consider” exercising its putative rulemaking authority to curtail noncompetes. Current FTC Chair Lina Khan has not shied away from sharing her view that noncompetes are inherently anticompetitive and should be prohibited altogether. It was thus unsurprising when, on January 5, 2023, she (with the support of the Commission’s other two activist members) issued a proposed Rule banning noncompetes nationwide, with retroactive effect. However, banning noncompetes is inconsistent with the expressed will of the people, as evidenced by numerous failed efforts to do so in Congress and in the legislatures of some of the most employee-friendly states and cities in the nation. Nor does the Biden Administration appear even to have the constitutional authority to do so for the reasons outlined in the Supreme Court’s West Virginia v. EPA decision. This Legal Backgrounder outlines the history of noncompete regulation in the states and identifies recent trends in that regard; describes the Biden Administration’s efforts to nationalize the regulation of noncompetes; and explains why banning noncompetes nationally is neither the will of the people nor consistent with the Constitution.
A recent analysis of data released by the United States Small Business Administration (“SBA”) suggests that the vast majority of Paycheck Protection Program (“PPP”) loans extended to small businesses during the COVID-19 pandemic have been forgiven. While positive, this news is cold comfort to PPP borrowers for whom forgiveness was denied, or, as we addressed previously, whose lenders required them to apply for forgiveness in amounts less than the full amount of their PPP loans. PPP borrowers can apply for forgiveness of their PPP loans any time up until the loan maturity date (2025 in many cases), and borrowers continue to receive denials of forgiveness for both first- and second-draw PPP loans. As a result, the PPP appeal process remains as important today as at its inception.
While monitoring your work email, you receive a message that puts a pit in your stomach. Your company’s General Counsel has sent you a “Litigation Hold Notice,” advising you that your emails, documents, and communications must be preserved. What does this mean? What do you need to do? Here are the basics on litigation hold notices, and a few simple tips on how to proceed once you receive one.
Continue Reading What to Do When Your Employer Sends You a Litigation Hold Notice
On November 24, 2022, New York’s Adult Survivors Act (“ASA”) (S.66A/A.648A) will go into effect and likely will usher in a tidal wave of litigation across the state. Employers will be impacted by the law, in addition to individuals, and the resulting litigation could span many years – particularly with the ongoing court delays related to the COVID-19 pandemic. As such, developing a proactive defense strategy for ASA claims and resolving potential insurance coverage issues in advance, is of vital importance as this date draws near.
Public figures are fighting back against fake news.
In the most recent headline from the world of celebrity defamation cases, E. Jean Carroll is suing former President Trump for statements he made after she accused him of sexual assault. In a 2019 book and excerpt in New York magazine, Carroll, a longtime advice columnist for Elle magazine, accused Trump of sexual assault in the mid-1990s. Trump responded that Carroll was “totally lying” and not his “type.” Carroll sued Trump for defamation, claiming his statements had harmed her reputation. But Carroll—like all public figure defamation plaintiffs—has an uphill battle before her. To succeed, Carroll will have to prove that Trump’s statements were false, and—because Carroll is a public figure—she will also have to show that Trump acted with “actual malice.” The actual malice standard often proves to be too high a threshold for most public figures to cross, and most cases are lost on that prong—regardless of whether the statement was false. In fact, Johnny Depp was one of the few public figures in recent years to win a defamation suit.
Given the volume of funds that were quickly dispersed during the COVID-19 pandemic, there were plenty of new areas for fraud and abuse. The Department of Justice (“DOJ”) initially set its sights on targeting the borrowers of such funds. Now, the DOJ is ramping up enforcement with the first ever False Claims Act (“FCA”) settlement with a lender of Paycheck Protection Programs (“PPP”) funds.
Beginning on March 1, 2023, the statute of limitations for allegations under New York City’s Victims of Gender-Motivated Protection Law (“VGMVPL”) will be extended for two years to afford alleged victims of gender motivated violence a two-year lookback window to bring a civil action for claims that have been previously time barred. Individuals will have from March 1, 2023 to March 1, 2025 to commence a civil suit against such alleged wrongdoers and institutions where they may seek compensatory and punitive damages, injunctive and declaratory relief, attorney’s fees and costs, and such other relief as a court may deem appropriate under VGMVPL for participation in such crimes.
It has been four years since Congress enacted the Eliminating Kickbacks in Recovery Act (“EKRA”), codified at 18 U.S.C. § 220. EKRA initially targeted patient brokering and kickback schemes within the addiction treatment and recovery spaces. However, since EKRA was expansively drafted to also apply to clinical laboratories (it applies to improper referrals for any “service”, regardless of the payor), public as well as private insurance plans and even self-pay patients fall within the reach of the statute.
Continue Reading Four Years After Enactment – Clinical Laboratories Should Not Forget About EKRA
Recent legislation signed into law by President Biden on September 16, 2022 abolishes the statute of limitations for over a dozen federal civil causes of action relating to child sex abuse, continuing the trend throughout the country to reform statutes of limitations relating to child sex abuse. Known as the “Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022” (Public Law No. 117-176), the Act abolishes the previous ten-year statute of limitations to commence a civil action for any person who, as a minor, was the victim of any of the offenses enumerated in the Act, including forced labor, sex trafficking of children, sexual abuse of a minor, sexual exploitation of children, and transportation of minors to engage in sexual conduct. The Act became effective on September 16, 2022.