Commercial Litigation Update

On July 25, 2025, the Eleventh Circuit issued an opinion in United States ex rel. Sedona Partners LLC v. Able Moving & Storage Inc. (No. 22-13340) addressing an important procedural question under the False Claims Act (FCA) and other fraud-based statutes: may a plaintiff rely on information learned during discovery to meet Rule 9(b)’s heightened pleading standard in an amended complaint? The court concluded that the answer is yes.

Rule 9(b) requires that allegations of fraud be plead “with particularity.” Defendants frequently rely on this standard at the motion-to-dismiss stage, aiming to defeat weak FCA complaints before discovery begins. In 2019, an unpublished Eleventh Circuit decision, Bingham v. HCA, Inc., 783 F. App'x 868 (11th Cir. 2019), suggested that plaintiffs could not use discovery to cure a deficient complaint. The concern was that such an approach could incentivize speculative suits filed without adequate factual grounding.

Biometric technologies—such as fingerprint scanners, facial recognition systems, and retina scans—are now commonplace in modern business operations. From employee timekeeping systems to facility security and customer-facing applications, these tools offer efficiency and convenience for many businesses. But these same conveniences have sparked backlash in the form of privacy litigation. In Illinois especially, companies are facing a surge of class-action lawsuits under the state’s Biometric Information Privacy Act (“BIPA”), a pioneering law that imposes strict requirements on the use of biometric data and hefty penalties for companies failing to adhere to the law. This trend is not confined to Illinois: a growing patchwork of similar laws in other states means that using biometrics without proper safeguards can expose companies nationwide to significant statutory damages and legal risks.

The discussion of Artificial Intelligence (“AI”) in the workplace typically focuses on whether the AI tool and model has a discriminatory impact. This means examining whether the AI output creates an unlawful disparate impact against individuals belonging to a protected category.

However, that discussion rarely centers on the types of training data used, and whether the training data itself could have a harmful effect on the workers tasked with training the AI model.

Last summer, in a case of first impression, the U.S. Court of Appeals for the Seventh Circuit in Motorola Solutions, Inc. v. Hytera Communications Corporation Ltd held that the Defend Trade Secrets Act (the “DTSA”) rebuts the presumption against extraterritoriality—i.e., the principle that federal statutes should not be applied to conduct occurring outside of the United States, unless Congress explicitly states otherwise. 108 F.4th 458, 483 (7th Cir. 2024).

The Motorola court held that the DTSA applies to individuals and entities who are not located in the United States insofar as an “act in furtherance” of the misappropriation “was committed in the United States.” 18 U.S.C. § 1837(2). In construing what constitutes an “act in furtherance” of misappropriation, the Motorola court determined that the defendant, a Chinese company, had committed an “act in furtherance” of the misappropriation by marketing products embodying defendant’s stolen trade secrets via road shows and advertising activities it conducted in the United States. Id. 480-88.

A recent decision from the Northern District of Illinois continues to develop the DTSA’s “act in furtherance” element. In GTY Technology Holdings Inc. v. Euna Solutions, the court considered whether the DTSA applied to a Canadian citizen defendant, who had worked remotely for a Chicago-based company before he and his codefendant allegedly misappropriated plaintiffs’ trade secret information. No. 24-CV-9069, *8 (N.D. Ill. May 21, 2025). Plaintiffs alleged that defendant had engaged in conduct in the United States when, prior to his downloading the documents, he visited Chicago and discussed the documents with his codefendant. Id. Defendant moved to dismiss the DTSA claims, arguing that the statute did not apply to him because he was in Canada when he allegedly downloaded the plaintiffs’ documents, thereby allegedly committing the act of misappropriation outside of the U.S. Id.

In the wake of the Dobbs decision, which eliminated the constitutional right to abortion, individual states were left to regulate or ban the procedure. A patchwork of state laws subsequently followed, with some states enacting total bans and others permitting abortion access, with considerable variations in between. In addition to regulating or restricting access to the procedure, certain states have criminalized seeking, providing, and helping others obtain or provide abortion, especially those providing telehealth services, but these actions are legal and protected in New York. New York’s “Shield Law” consists of several statutes, enacted and intended to protect providers and patients offering or seeking abortion in New York against the imposition of criminal and civil liability originating from outside the state. According to the New York State Office of the Attorney General, “[t]he Shield Law broadly prohibits law enforcement and other state officials from cooperating with investigations into reproductive health care (“protected health care”) so long as the care was lawfully provided in New York.”^[1] Moreover, “[w]ith respect to reproductive health care specifically, these protections apply even if the care was provided via telehealth to a patient located out-of-state, so long as the provider was physically present in New York.”^[2]

New York’s Shield Law creates substantive protections for reproductive health care, which can be summarized as follows:

On June 30, 2025, the U.S. Department of Justice (“DOJ”), together with the U.S. Department of Health and Human Services Office of Inspector General (“HHS OIG”) and other law enforcement partners, announced the results of the 2025 National Health Care Fraud Takedown—hailed as the largest in history.

This year, DOJ’s Health Care Fraud Unit reported that 324 defendants were charged for their alleged involvement in various health care fraud schemes that involved over $14.6 billion in intended loss—more than doubling the prior record of $6 billion set in 2020 during the first Trump administration. By way of comparison, last year, the 2024 Takedown charged 193 defendants with allegedly committing more than $2.5 billion in fraud. And two years ago, the 2023 Takedown charged 78 defendants with more than $2.5 billion. To say there was a significant increase between the Biden administration and the second Trump administration would be an understatement.  

That this administration would “follow the money” should not come as a surprise. As noted, the prior record was set during President Trump’s first term in 2020. In that Takedown, DOJ and HHS OIG reported 345 defendants allegedly submitted more than $6 billion in false and fraudulent claims to federal health care programs and private payers. The bulk of that 2020 Takedown, $4.5 billion, was related to telehealth.

In 2023, the Maryland General Assembly passed the Maryland Child Victims Act of 2023 (“CVA”) to expand claimants’ ability to file and seek damages for alleged child sexual abuse cases, following the trend initiated by other states like New York  and New Jersey.  The CVA was signed into law by Governor Wes Moore on April 11, 2023, and became effective October 1, 2023. The law removed the statute of limitation for claims of sexual abuse that occurred while the alleged victim was a minor. The CVA also placed high caps on non-economic damages from private defendants and monetary damages from public defendants.

The June 1, 2025 Amendment Drastically Reduces the Damages Cap

On April 22, 2025,  Governor Moore signed an Amendment to the CVA that reduced damages for public and private defendants.  The Amendment, which took effect on June 1, 2025, lowers the cap on noneconomic damages for CVA cases filed on or after June 1, 2025 in the following ways:

New episode of our video podcast, Speaking of Litigation: Early decisions in high-stakes litigation can shape both the courtroom and public narratives, yet critical first-move strategies are underutilized.

Why It Matters

• Setting the Tone Early: Find out how pre-litigation discovery builds compelling, evidence-backed cases.

• Controlling the Narrative: Learn how preemptive filings can influence not only legal outcomes but also public opinion.

• Detailed Insights on Strategy: Gain valuable advice on making critical first moves that can define the trajectory of your case.

Don’t miss Epstein Becker Green attorneys Sierra Hennessy, David Clark, and Alex Barnard as they explore the benefits, risks, and nuances of these advanced legal strategies.

This episode of Speaking of Litigation is packed with actionable insights for general counsel and legal professionals navigating complex litigation and provides real-time examples from high-profile disputes, including Blake Lively’s and Justin Baldoni’s cases.

On June 25, 2025, the Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”) released a short video containing the highlights of the Medicaid Fraud Control Units (“MFCUs”) Annual Report for Fiscal Year 2024 (“2024 Annual Report”). While the 2024 Annual Report was released in March 2025, HHS OIG just released the two-minute video summarizing the key aspects of the report.

MFCUs—which investigate and prosecute statewide Medicaid provider fraud, and beneficiary abuse and neglect—recovered $1.4 billion in FY 2024, which equates to $3.46 for every $1 spent. Criminal recoveries were the highest amount in the past 10 years, $961 million, and more than double the rolling 5-year average. HHS OIG attributes this massive increase to the California MFCU, which recovered $513 million on its own.

In February 2025, Tennessee Governor Bill Lee signed a bill into law strengthening immigration enforcement in the state. We previously wrote about this law here.

The law created a Centralized Immigration Enforcement Division at the state level that coordinates directly with the Trump administration on federal immigration policies, establishes a new driver’s license distinguishing U.S. citizens from lawful permanent residents, and through provision of grants, encourages local governments to participate in enforcing federal immigration authorities.

The law also made it a felony for elected officials to vote for so-called sanctuary city policies, punishable by up to six years in jail, a $3,000 fine, and the law requires removal of any official who violates the law “as soon as practicable.”