Commercial Litigation Update

When multiple forces act on an object, its direction of motion is determined by the net force, which is the vector sum of all individual forces.  When this happens within our federal government, we call it “interesting times.”

Not unlike other areas of the United States federal government of late, the U.S. Copyright Office has been thrown into turmoil following a stunning sequence of events this past week.  As reported in multiple news outlets:

• On Thursday, May 8, 2025, President Donald Trump fired Librarian of Congress Carla Hayden, the first woman and the first African American to be librarian of Congress.^[i] The Library of Congress is the larger federal agency within which the U.S. Copyright Office resides.

The most anticipated event at the U.S. Supreme Court today was the oral argument in the birthright citizenship case.

While the question of birthright citizenship, which the Romans called jus soli, is important both in terms of constitutional law and American customs and mores, the underlying question in the case raises a procedural issue that will affect the litigators who follow this blog the most.

That is the question of whether cases involving injunctive or declaratory relief should be resolved by the issuance of nationwide injunctions and orders, or just be limited to the actual parties and the district in which the case is at bar. The consolidated cases currently before the Court could be decided expeditiously. In any event, we shall follow developments closely and report promptly when a decision is issued.

For today, only one decision was forthcoming, with Justice Kagan writing for a unanimous Court in Barnes v. Felix, a not-insignificant case that reads like a law school exercise, but a very vivid and immediate one. Law enforcement officer Roberto Felix, Jr., pulled Ashtian Barnes over for suspected toll violations. Barnes ignored the officer’s order to exit the vehicle and began to drive away. Felix immediately jumped onto the doorsill and fired two shots into the car, fatally wounding Barnes, who was able to stop the car before he died. The entire encounter took five seconds, and only two seconds elapsed from the time the officer stepped onto the doorsill of the car until he fired.

On May 12, 2025, the U.S. Department of Justice’s Criminal Division released a new guidance memo on white-collar enforcement priorities in the Trump Administration entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.” In this memo, and the accompanying speech by Matthew R. Galeotti, the Trump  Administration’s appointed Head of the Criminal Division, the DOJ reiterated its previously stated commitment to prosecuting illegal immigration, drug cartels, and transnational criminal organizations. For the first time in the new Administration, however, the DOJ clearly articulated new white-collar enforcement priorities, directing Criminal Division white-collar prosecutors to follow three core tenets: focus, fairness, and efficiency. As detailed below, the new memo sets forth the following three priorities:

1. Focus on High-Impact Waste, Fraud, and Abuse Harming Vulnerable Taxpayers

It should be no surprise that the administration is targeting actors that profit through “waste, fraud, and abuse.” The memo sets clear priorities for its prosecutors to investigate, listing as the #1 priority health care fraud and federal program and procurement fraud.  The memo goes on to provide a top 10 list of “high-impact areas”, with “trade and customs fraud, including tariff evasion” as #2.  Heavy focus is given to fraud perpetrated by foreign actors and conduct threatening U.S. national security. Also listed is fraud victimizing U.S. investors, including elder fraud and Ponzi schemes. Appearing as #8 on the list is violations of the Controlled Substances Act and the Federal Food, Drug and Cosmetic Act, including the creation of counterfeit pills laced with fentanyl and the “unlawful distribution of opioids by medical professionals and companies.”

The U.S. Supreme Court did not publish any opinions last week, but I note with sadness the death of retired Justice David Souter on May 8.

I got to know Justice Souter first during his vetting in 1990. Then and thereafter, he always had a kind word when we met. Once, in his pronounced Yankee accent, he said to me, "We haven't seen much of you lately at the Court." I responded that "it was more of your doing than mine," referencing the "cert. denieds" that were issued in the cases in which I mostly represented respondents, as well as a few petitioners. We had a good laugh at that. Over the course of his tenure, he moved from right-of-center to center-left but always maintained a cordial yet reserved tone and demeanor.

Today, the U.S. Supreme Court again decided only a single case, that of Feliciano v. Department of Transportation, and, to many Court observers, the most interesting thing about it is the lineup of Justices—one that contradicts common stereotypes as to how the Justices align with respect to statutory interpretation.

The decision, while particularly important to military reservists who work for the federal government, is hardly a front-page matter to most people. Today’s holding is simple: a federal civilian employee who is a reservist called to active duty pursuant to “any other provision of law . . . during a national emergency,” as described in 10 U.S.C. §101(a)(13)(B), is entitled to differential pay if the reservist’s service temporally coincides with a declared national emergency without any showing that the service bears a substantive connection to a particular emergency. “Differential pay” closes the gap between the reservist’s civilian government pay and his or her military pay while serving on active duty “during a national emergency.”

In its 2022 decision in Becerra v. Empire Health Foundation, for Valley Hospital Medical Center, the U.S. Supreme Court held that the phrase “entitled to [Medicare Part A] benefits” applied to “all those qualifying for the program, regardless of whether they are receiving Medicare payments for part or all of a hospital stay.” 597 U. S. 424, 445 (2022) (quoting §1395ww(d)(5)(F)(vi)(I); alteration in original).

In doing so, the Court left open the question of what it means to be “entitled to supplementary security income [SSI] benefits . . . under subchapter XVI.” §1395ww(d)(5)(F)(vi)(I).

Today, in Advocate Christ Medical Center v. Kennedy, the Court, in a 7–2 decision (with Justice Barrett writing for the majority and Justice Jackson, joined by Justice Sotomayor, dissenting), held “that a person is entitled to such benefits when she is eligible to receive a cash payment during the month of her hospitalization.” Today’s decision continues the unbroken string of losses that the petitioner hospitals have suffered in this litigation at both the administrative and judicial levels.

In a unanimous ruling, the New York Court of Appeals held that the New York State Legislature did not alter the substantive pleading requirements of Section 11(b) of the Court of Claims Act (the “Act”) for claims brought against the State of New York (the “State”) pursuant to the New York Child Victims Act (“CVA”).

In Chi Bartram Wright v. State of New York, the plaintiff alleged that between 1986 and 1990, when he was twelve to fifteen years old, he was repeatedly sexually assaulted by various men at a state-owned performance arts facility located in Albany, New York. The complaint filed in the Court of Claims failed to identify any of the men who allegedly assaulted plaintiff, the specific months and dates of the alleged assaults, why plaintiff was in the company of the alleged abusers multiple times over a four year period, or what repeatedly brought plaintiff to the performance arts facility. Instead, the complaint generally alleged that during the alleged time period, plaintiff was assaulted by various State employees and members of the general public while on the state-owned premises. Plaintiff sought over $75 million in damages based on various negligence-based causes of action, including negligent hiring, retention, direction, and supervision.

Immigration-related cases have recently been highly controversial and much in the news.

Thus, it should be unsurprising that the U.S. Supreme Court was sharply divided in the case of Monsalvo Velázquez v. Bondi, the central issue of which has to do with whether a 60-day deadline for the voluntary departure of a person who had entered the United States unlawfully should be interpreted as referring to consecutive calendar days, or whether the period should be extended when the deadline falls on a weekend or holiday.

Followers of this blog will likely say offhand that there should be nothing controversial about that question. After all, most of my readers are lawyers who file court papers and deal with case filings, the deadlines of which are, by rule, generally and automatically interpreted to allow filings beyond the designated numerical deadline to the first business day following a weekend or holiday. Nevertheless, a question so apparently simple, here in the context of the voluntary departure deadline of 8 U. S. C. §1229c(b)(2), produced a 5–4 decision, with Justice Gorsuch writing for the Chief Justice and Justices Sotomayor, Kagan, and Jackson, with a variety of mix-and-match dissents filed by Justices Thomas, Alito, Kavanaugh, and Barrett.

New episode of our video podcast, Speaking of Litigation: When businesses face regulatory uncertainty, how can they effectively adapt, respond, and, if necessary, challenge government action?

In this episode, Epstein Becker Green attorneys Mike Brodlieb, Jim Flynn, Jimmy Oh, and Jack Wenik navigate the complexities of regulatory action and inaction. The conversation dives into the changing administrative landscape and covers how businesses can strategize to challenge regulations, the pros and cons of litigation, and the critical importance of aligning legal goals with practical business objectives.

The panelists also explore how agencies’ evolving processes create both challenges and opportunities, including how internal agency relationships and unexpected legal arguments can shape outcomes. From assembling the right legal team to balancing risk and reward in high-stakes scenarios, they discuss real-world tactics for crafting solutions that address uncertainty while keeping business interests front and center.

Gain insight into how legal professionals are managing the intricate interplay between government regulation, litigation strategies, and client priorities in today’s dynamic environment.

On April 14, 2025, the United States Court of Appeals for the Seventh Circuit issued a decision in a case involving the federal Anti-Kickback Statute (“AKS”) and marketing services that the court framed as an appeal “test[ing] some of the outer boundaries of the [AKS]….” In United States vs. Mark Sorensen, the Court of Appeals overturned the judgment of conviction against Mark Sorensen from the United States District Court for the Northern District of Illinois. In the district court case, Sorensen, the owner of SyMed Inc., a durable medical equipment (“DME”) distributor, was found guilty of one count of conspiracy and three counts of offering and paying kickbacks in return for the referral of Medicare beneficiaries to his DME company, which the United States claimed resulted in SyMed’s fraudulently billing $87 million and receiving $23.6 million in payments from Medicare. The district court judge denied Sorensen’s post-trial motions for acquittal and for a new trial, finding that the evidence regarding willfulness allowed the jury to find beyond a reasonable doubt that Sorensen “knew from the beginning of the agreement in 2015 that the percentage fee structure and purchase of the [doctors’] orders violated the law.” He was sentenced to 42 months in prison and ordered to forfeit $1.8 million.