Commercial Litigation Update

New episode of our video podcast, Speaking of Litigation: This Veterans Day, Speaking of Litigation brings you a special episode featuring Epstein Becker Green attorneys Stuart Gerson, Jack Fernandez, Ron Green, and Ken Kelly, who share their unique journeys from military service to impactful legal careers.

Discover how their military experiences shaped their leadership, resilience, and approach to the practice of law. This episode also celebrates the service of the broader Epstein Becker Green community, including employees and their families.

In Summer 2025, the U.S. Court of Appeals for the Sixth Circuit issued a strongly worded decision in In Re: FirstEnergy Corporation (No. 24-3654)—confirming the core concept that internal investigations conducted by counsel and in anticipation of litigation are privileged and protected from disclosure. When securities plaintiffs in the case sweepingly sought all documents “related to the internal investigation,” the district court incorrectly ordered their production. After much legal wrangling, the Sixth Circuit rebuked the district court on August 7, 2025, and reaffirmed in a per curiam opinion filed October 3, 2025. 

The U.S. Court of Appeals for the Eleventh Circuit held in United States ex rel. Sedona Partners LLC v. Able Moving and Storage Inc., No. 22-13340 (11th Cir. Jul. 25, 2025), that while a district court has the discretion to dismiss a relator’s complaint before or once discovery has begun, it may not disregard the allegations of qui tam relators at the motion to dismiss stage solely because those allegations reflect information obtained in discovery.

In September 2025, the U.S. Attorneys’ Office for the Eastern District of Pennsylvania (EDPA) announced that it would be implementing a White-Collar Justice Program to strengthen its white- collar enforcement framework. Among other things, the program will “empower Assistant United States Attorneys to aggressively pursue complex investigations and significant new matters on their own initiative.”

This announcement demonstrates another step in federal districts ramping up their white-collar enforcement efforts while encouraging robust procedures for compliance and self-disclosure. This is a trend several years in the making: in September 2022, then-Deputy Attorney General Lisa Monaco directed U.S. attorneys and others within the DOJ to review their policies on corporate voluntary self-disclosure, and to draft and share a formal written policy to incentivize such self-disclosure, if one was lacking.

The federal Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, was enacted in 1991 to protect consumers from unsolicited telemarketing calls, faxes, and now text messages.  For businesses that engage in telemarketing, the TCPA poses significant legal risk for noncompliance.  The TCPA's strict regulations and severe financial penalties mean that even inadvertent violations can lead to substantial fines and costly class-action lawsuits.

Adding more compliance risk to telemarketers, Texas enacted its own TCPA (known as the Texas “mini-TCPA”) in 2009 to further protect the privacy of Texas residents by imposing more requirements on businesses engaged in telemarketing activities in Texas and by implementing more robust enforcement mechanisms.

New episode of our video podcast, Speaking of Litigation: Courtroom dramas make for great entertainment, but how much of what we see on screen reflects the reality of litigation?

In this episode of Speaking of Litigation, we analyze iconic scenes from Succession, The Good Wife, Bridge of Spies, and more to uncover the truths—and myths—about the legal process.

Join Epstein Becker Green attorneys Sierra Hennessy, Aime Dempsey, and Adam Paine as they separate Hollywood fiction from legal reality, offering practical insights for anyone navigating the litigation process.

On September 11, 2025, General Dynamics Corporation (“General Dynamics”), along with other naval manufacturers and defense contractors, petitioned the Supreme Court of the United States to consider whether an unwritten “no-poach” agreement was sufficient to invoke the doctrine of fraudulent concealment and toll the Sherman Anti-Trust Act’s (the “Sherman Act”) four-year statute of limitations.

In May, the Fourth Circuit, in permitting an over-decade-old claim to proceed, held that an unwritten secret agreement was sufficient to toll the Sherman Act’s limitations period, noting that “neither logic nor our precedent supports distinguishing between defendants who destroy evidence . . . and defendants who carefully avoid creating evidence in the first place.” However, that decision conflicts with those of the Fifth, Sixth, and Ninth Circuits—all of which previously found that mere secrecy was not adequate to invoke a fraudulent concealment tolling theory.

Generative Artificial Intelligence (“AI”) tools like ChatGPT, Scribe, Jasper, and others have catapulted exponentially in popularity in recent years, for widespread personal and professional uses supplementing, if not largely displacing, traditional search engines. Applications for AI interactions in the workplace, algorithmically simulating human reasoning and inference, are expanding as quickly as users can draft new prompts requesting designs, how-to guides, correspondence, and countless other outputs. AI tools have quickly transitioned from an amusing new technology to essential tools for professionals and businesses, driving innovation and efficiency. These tools are used by businesses for an ever-expanding list of purposes, including brainstorming ideas based on patterns and data analysis; creating and memorializing documents, procedures, manuals, and tutorials; generating marketing and other client-facing materials; drafting communications; summarizing documents; explaining concepts and processes; and even generating code.

As these tools become more integrated into workplace processes, courts and litigants are beginning to confront the question of whether and to what extent AI searches and “chats” are discoverable in litigation. As the Federal Rules of Civil Procedure permit broad discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, litigants may potentially be entitled to compel production of information and communications generated or processed by AI platforms related to the facts in dispute. Fed. R. Civ. P. 26(b)(1); In re OpenAI, Inc., Copyright Infringement Litig., No. 23-CV-08292, 2025 WL 1652110, at *2 (S.D.N.Y. May 30, 2025). Just as local news headlines are replete with instances of internet searches as evidence in criminal cases[1], real-time AI “interactions” may likely be subject to the same disclosure requirements in civil litigation.

New episode of our video podcast, Speaking of Litigation: When a merger or acquisition closes, many executives assume the legal work is over.

But as this episode of Speaking of Litigation reveals, signing on the dotted line may be just the beginning.

Avoid post-closing litigation with these issues in focus:

• Earnout Disputes: Learn how a buyer’s actions can intentionally or unintentionally depress earnings, leading to legal battles over unpaid contingent payments.
• Indemnification Risks: Understand why a buyer’s “safety net” can become a legal landmine for sellers, especially when ambiguous deal language is involved.
• Regulatory Surprises: Discover the unforeseen challenges that arise when government investigations begin after a deal closes, forcing buyers and sellers to confront liability for past conduct.

Epstein Becker Green attorneys Jim Flynn, Bob Travisano, and Daniella Lee discuss how to spot the red flags in a deal, the main legal triggers of post-merger disputes, and, most importantly, how to protect your business—whether you’re the buyer or the seller.

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.