Commercial Litigation Update

While not a decision on the merits, the U.S. Supreme Court’s opinion on April 4, 2025, in Department of Education v. California is worth considering.

The case came to the Court on an application to stay the temporary restraining order (TRO) of the U.S. District Court for the District of Massachusetts enjoining the government from terminating various education-related grants made by the U.S. Department of Education, and requiring that department’s payment of past-due grant obligations and the continuing payment of current and future ones. The district court based its conclusion on its finding that the respondents were likely to succeed on the merits of their claims under the Administrative Procedure Act (APA).

In a per curiam opinion, the Supreme Court viewed the TRO as having “many of the hallmarks of a preliminary injunction” and treated it that way. In granting the stay, the Court held that the government was likely to succeed in showing that the district court lacked jurisdiction under the APA to order the payment of money. While the APA provides a limited waiver of sovereign immunity on the part of the government, that waiver “does not extend to orders [of a district court] to enforce a contractual obligation to pay money” along the lines of what the district court ordered here. Instead, noted the Court, the Tucker Act, 28 U. S. C. §1491(a)(1), gives the Court of Federal Claims jurisdiction over suits based on “any express or implied contract with the United States.”

The Racketeer Influenced and Corrupt Organizations Act (RICO) allows any person “injured in his business or property by reason of” racketeering activity to bring a civil suit for damages. 18 U. S. C. §1964(c). However, the statute forbids suits based on “personal injuries.” But are economic harms resulting from personal injuries “injuries to ‘business or property?’”

Yesterday, in Medical Marijuana, Inc. v. Horn, the U.S. Supreme Court, in a 5–4 opinion written by Justice Barrett and joined by Justices Kagan, Sotomayor, Gorsuch, and Jackson, answered that question in the affirmative. Justices Thomas and Kavanaugh wrote dissenting opinions, the latter joined by the Chief Justice and Justice Alito.

Attempting to alleviate his chronic pain, Douglas Horn purchased and began taking “Dixie X,” advertised as a tetrahydrocannabinol-free (“THC-free”), non-psychoactive cannabidiol tincture produced by Medical Marijuana, Inc. However, when his employer later subjected him to a random drug test, Horn tested positive for THC. When Horn refused to participate in a substance abuse program, he was fired. Horn then brought his RICO suit.

On February 27, 2025, by a vote of 52 to 0, the Georgia Senate passed Senate Bill 69, titled “Georgia Courts Access and Consumer Protection Act.” If signed into law, the bill would regulate third-party litigation financing (“TPLF”) practices in Georgia where an individual or entity provides financing to a party to a lawsuit in exchange for a right to receive payment contingent on the lawsuit’s outcome. This bill represents another effort by states to restrain the influence of third-party litigation financiers and increase transparency in litigations.

Senate Bill 69 sets forth several key requirements. First, a person or entity engaging in litigation funding in Georgia must register as a litigation financier with the Department of Banking and Finance and provide specified information, including any affiliation with foreign persons or principals. Such filings are public records subject to disclosure.

The Supreme Court decided two cases today, continuing the release of opinions on which the Court is not deeply divided. The tougher ones are yet to come.

Despite the fact that today’s cases come from highly specialized areas of practice—firearms control and bankruptcy—both are interesting because they involve the interpretation of text, as Justices of all stripes continue to apply textual, literalist principles of interpretation rather than couching their views in a broader, arguably political, analysis of implied congressional intent.

New episode of our video podcast, Speaking of Litigation: How can legal professionals transform complex arguments into compelling visuals without losing their audience in dense text?

In this episode, Epstein Becker Green attorneys Lauren Brophy Cooper and James S. Tam are joined by guest Brandie Knox, Founder and Creative Director of Knox Design Strategy, to discuss the legal industry's shift toward visual storytelling.

The group explores how visuals are transforming the way lawyers present arguments, from infographics and timelines to courtroom animations. The discussion highlights strategies for tailoring visuals to audiences, the importance of timing and delivery, and how attorneys are even using visual storytelling outside the courtroom.

Discover practical tips for making legal presentations more impactful and engaging in any setting, from courtrooms to boardrooms.

On Monday, March 3, 2025, the Massachusetts Supreme Judicial Court (“SJC”) heard argument in Miele v. Foundation Medicine, Inc., regarding whether the Massachusetts Noncompetition Agreement Act, G. L. c. 149, § 24L (the “MNAA”), applies to a forfeiture-for-solicitation provision contained in a termination agreement. The outcome of this appeal will clarify the bounds of the recently enacted statute and may have a significant impact on the landscape of restrictive covenants in Massachusetts on the whole.

This appeal challenges the Superior Court’s July 2024 ruling that a contract provision requiring Plaintiff-Appellee to forfeit severance benefits upon breach of non-solicitation obligations was subject to, and prohibited by, the MNAA because it does not satisfy the requirements for an enforceable noncompetition agreement under the statute. The MNAA requires valid covenants to be reasonable in scope of proscribed activities in relation to the interests protected, supported by mutually agreed upon consideration, and consonant with public policy. G. L. c. 149, § 24L.

While much attention has been given to the Trump Administration’s early federal policy objectives to increase immigration enforcement, clients should also be aware of similar increased enforcement policies at the state level.

Last month, Tennessee Governor Bill Lee signed into law a bill passed by the state legislature during a recent special legislative session. The new Tennessee law attempts to strengthen immigration enforcement in Tennessee with the following measures:

1. Creates a Centralized Immigration Enforcement Division at the state level, to be led by a Chief Immigration Enforcement Officer (“CIEO”) appointed by the Governor. The CIEO will coordinate directly with the Trump Administration on federal immigration policies and implementation.

The U.S. Supreme Court resolved more textual battles today, one in a fully argued case, the other on procedural motions.

The combinations of Justices continue to defy stereotypes, and at least one of those combinations, led by the Chief Justice, constitutes a majority that is willing to stand up to presidential assertions of expansive powers.

Only a few readers of SCOTUS Today are lawyers who are professionally occupied with environmental matters.

However, almost all of my readers are constantly occupied with administrative law matters, governed in the post-Chevron world by questions of whether Congress has delegated power to administrative agencies and—to the extent that it has—how legislative text should be read or interpreted.

Those issues are at the heart of today's decision in City and County of San Francisco v. Environmental Protection Agency.

Today was a day of unanimity at the U.S. Supreme Court, and what the Justices were unanimous about was a textually literal approach to applying dictionary definitions to resolve statutory disputes.

Several years ago, in a lecture series named after the late Justice Antonin Scalia at Harvard, Justice Elena Kagan pronounced, “We’re all textualists now.” And at least on some days, that declaration proves true. Today is one of those days.

We start with Dewberry Group, Inc. v. Dewberry Engineers Inc. Dewberry Engineers successfully sued the similarly named Dewberry Group, a competing real estate developer, for trademark infringement under the Lanham Act. The Lanham Act provides for a prevailing plaintiff to recover the “defendant’s profits” derived from the improper use of a mark.15 U. S. C. §1117(a). Dewberry Group provides services that facilitate the generation of rental income from properties owned by separately incorporated affiliates, and that goes on the affiliates’ books. Dewberry Group is only paid fees, and because those fees are set below market rate, it has operated at a loss for many years, surviving only because the owner of both Dewberry Group and its affiliates has made infusions of cash. Given what it saw as an “economic reality,” the U.S. District Court for the Eastern District of Virginia treated Dewberry Group and its affiliates “as a single corporate entity” for purposes of calculating the profit-based award, totaling the affiliates’ profits from the years in which the infringement took place. This produced an award of almost $43 million. Writing for a unanimous Court, the avowed textualist Justice Kagan opined that “[i]n awarding the ‘defendant’s profits’ to the prevailing plaintiff in a trademark infringement suit under the Lanham Act, §1117(a), a court can award only profits ascribable to the ‘defendant’ itself. And the term ‘defendant’ bears its usual legal meaning: the party against whom relief or recovery is sought—here, Dewberry Group.” Because Dewberry Engineers did not include Dewberry Group’s affiliates as defendants, the affiliates’ profits are not disgorgeable “defendant’s profits” as the term is ordinarily understood. In other words, only the profits attributable to the actual defendant were subject to award.