Commercial Litigation Update

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.

The U.S. Supreme Court decided two cases today, one of which, Lackey v. Stinnie, involved an action brought pursuant to 42 U. S. C. §1983 and should be of particular interest to the many readers of this blog who practice in the civil rights space.

The second case, Glossip v. Oklahoma, is a homicide case in which the state knowingly adduced false testimony. But does the Supreme Court have jurisdiction to reverse the conviction? The answer is that it does, though an interesting mix of Justices take more than 70 pages to explain their competing views.

New episode of our video podcast, Speaking of Litigation: Behind every successful trial is a team that knows how to work under pressure—but what sets trial teams apart?

In this episode, Epstein Becker Green attorneys Shruti Panchavati, Melissa Jampol, and Diana Costantino Gomprecht share their trial team experiences, breaking down how trial team dynamics can directly affect courtroom outcomes.

Tune in as the panel uncovers signs of dysfunction that can derail momentum and explores how jury, judge, and arbitrator perceptions hinge on a team’s professionalism, chemistry, and preparation.

With practical insights, real-world anecdotes, and nods to courtroom cinema classics, this episode offers a compelling glimpse into what it takes to handle complex litigation with precision and skill. Listen now to gain a deeper understanding of the factors that drive success in the courtroom.

On January 28, 2025, the U.S. Court of Appeals for the Ninth Circuit issued a significant ruling reinforcing the Fifth Amendment’s protection against self-incrimination and clarifying the attorney-client privilege in the context of grand jury subpoenas. In In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025), the Ninth Circuit held that counsel cannot be compelled to provide a privilege log delineating all documents a client previously sent to counsel for the purpose of obtaining legal advice unless and until the court conducts an in camera review of the documents at issue to determine whether the Fifth Amendment right against self-incrimination, as announced in Fisher v. United States, 425 U.S. 391 (1976), applies.^[1]

The decision further defines the limits of government subpoenas in criminal investigations and clarifies when privilege logs themselves may be shielded from disclosure. This ruling has far-reaching implications for attorneys, clients, and government investigations, particularly in white-collar, tax fraud and corporate compliance matters.

The U.S. Supreme Court decided three cases today, with one of particular interest to many readers of this blog. So, let’s start with that one.

Wisconsin Bell v. United States ex rel. Heath is a suit brought by a qui tam relator under the federal False Claims Act (FCA), which imposes civil liability on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim” as statutorily defined. 31 U. S. C. §3729(a)(1)(A). The issue presented is a common one in FCA litigation, namely, what is a claim? More precisely, in the context of the case, the question is what level of participation by the government in the actual payment is required to demonstrate an actionable claim by the United States. The answer, which won’t surprise many FCA practitioners, is “not much.”

The case itself concerned the Schools and Libraries (E-Rate) Program of the Universal Service Fund, established under the Telecommunications Act of 1996, which subsidizes internet and other telecommunication services for schools and libraries throughout the country. The program is financed by payments by telecommunications carriers into a fund that is administered by a private company, which collects and distributes the money pursuant to regulations set forth by the Federal Communications Commission (FCC). Those regulations require that carriers apply a kind of most-favored-nations rule, limiting them to charging the “lowest corresponding price” that would be charged by the carriers to “similarly situated” non-residential customers. Under this regime, a school pays the carrier a discounted price, and the carrier can get reimbursement for the remainder of the base price from the fund. The school could also pay the full, non-discounted price to the carrier itself and be reimbursed by the fund.

The U.S. Supreme Court’s ruling in American Hospital Association (“AHA”) v. Becerra (2022) sent shockwaves through the 340B drug pricing program when it held that CMS’ reduction of reimbursement for drugs purchased under the 340B program was not permitted by law. The Supreme Court chose not to address potential remedies and remanded the case back to the D.C. District Court for further proceedings on how to correct the underpayments. Instead of vacating the unlawful reimbursement rates, the District Court decided to remand without vacatur, allowing HHS the opportunity to remediate its underpayments.^[1] AHA v. Becerra (2023).

In response, the Centers for Medicare & Medicaid Services (CMS) issued a 2023 Final Rule mandating a retroactive lump-sum reimbursement to 340B participating hospitals for 340B underpayments made between 2018 and 2022. The Supreme Court’s decision, coupled with CMS’s administrative action, has led to significant contractual disputes and regulatory challenges as 340B contract hospitals seek restitution for past financial shortfalls while Medicare Advantage organizations (“MAOs”) grapple with the fiscal implications of these payment adjustments. The stakes are high, with hospitals seeking significant back payments and MAOs pushing back, arguing that their obligations are dictated by contracts, not federal rulemaking. As legal battles unfold, the question remains: Who is financially responsible for correcting these underpayments? This article analyzes these developments, focusing on the litigation between hospitals and MAOs and offering strategic contractual considerations in this shifting landscape.

[1] The court reasoned that vacatur would be highly disruptive due to the complexity of the Medicare system and potential budget neutrality concerns.

The U.S. Supreme Court has stayed the nationwide injunction that had been blocking the enforcement of the Corporate Transparency Act (CTA) while the merits of the CTA are pending a decision in the U.S. Court of Appeals for the Fifth Circuit, which will hear oral argument on March 25 in McHenry v. Texas Top Cop Shop, Inc.

The CTA requires more than 32 million existing businesses to disclose their beneficial owners. That number is expected to grow by five million new businesses per year. Texas Top Cop Shop, a firearms retailer, has challenged the CTA’s constitutionality.

During this interim period, it is unclear what, if any, action the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) will take. Today’s decision does not reinstate the previous January 13 filing deadline. Throughout the tortured history of this case, FinCEN has updated earlier compliance deadlines, but with a new administration, it is possible for the agency to await the action of the Fifth Circuit, which many believe is a commodious environment for firearms purveyors. Others stress the importance of a law designed in part to disclose foreign and domestic criminals who use anonymous U.S. companies to launder profits from drugs such as fentanyl or mask cybercrime-related transactions.