Gibson Dunn

Trump v. CASA, Inc., No. 24A884 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that district courts were wrong to grant “universal” preliminary injunctions against the government’s enforcement of a presidential executive order, and that any injunctive relief should be limited to the parties in those cases.

“‘[U]niversal injunctions’ . . . likely exceed the equitable authority that Congress has granted to federal courts.”

Justice Barrett, writing for the Court

Background:

On January 20, 2025, President Trump issued an Executive Order titled “Protecting the Meaning and Value of American Citizenship.” The order identifies two groups of persons whom the government should not recognize as United States citizens, even though they were born in the United States. The order directs federal officials not to issue documents recognizing U.S. citizenship for those individuals, to reject documents issued by state or local governments recognizing their citizenship, and to develop and issue public guidance on how to carry out the order within 30 days.

Shortly after the order’s issuance, three federal district courts granted universal preliminary injunctions, which forbade the government from taking steps to carry out the order’s directives against any person, anywhere in the country. The government defendants asked each district court (and later, the First, Fourth, and Ninth Circuits) for a partial stay of the preliminary injunctions. Their requests were denied. The government defendants then asked the Supreme Court for a partial stay. They argued that the Court should narrow the preliminary injunctions’ scope to protect only the individuals and identified members of the organizations who challenged the order, which would allow the order to go into effect against nonparties.

Issue:

May federal courts issue universal preliminary injunctions in favor of nonparties against the government?

Court’s Holding:

No. Universal injunctions likely exceed the equitable authority that Congress granted to federal courts under the Judiciary Act of 1789.

What It Means:

Today’s decision confirms that federal district courts likely do not have the power to grant universal preliminary injunctions, which temporarily forbid the government from enforcing a challenged federal action against anyone affected by the action, anywhere in the United States (even against nonparties to the lawsuit). The Court explained that while Congress endowed federal courts with jurisdiction over “all suits . . . in equity” in the Judiciary Act of 1789, courts’ power to fashion equitable remedies only encompasses those remedies “traditionally accorded by courts of equity” at the nation’s Founding.
The Court noted that it was not deciding whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action under the provision allowing courts to “hold unlawful and set aside agency action.” 5 U.S.C. § 706(2). The Court’s decision therefore does not affect plaintiffs’ ability to ask courts to “set aside” an agency action, even when some affected individuals are not parties to the APA suit.
The Court’s ruling signals to plaintiffs that they must consider alternative avenues to expedite their challenges to executive or legislative actions. These avenues may include Rule 23 class actions, lawsuits under civil rights legislation such as 42 U.S.C. § 1983, and actions to enjoin officials under Ex parte Young.
One consequence of today’s decision may be a reduction in the number of emergency applications to the United States Supreme Court. In recent years, a rise in the number of universal injunctions granted by district courts resulted in a sharp increase in emergency applications to the Supreme Court and a corresponding increase in decisions on the so-called “shadow docket”—the name that critics gave to the Court’s emergency docket. Today’s decision could result in a decrease in these applications going forward.

The Court’s opinion is available here.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the U.S. Supreme Court. Please feel free to contact the following practice group leaders:

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by associates Stephen Hammer and Audrey Payne.

Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.

FCC v. Consumers’ Research, Nos. 24-354 and 24-422 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that the statute authorizing the FCC to collect universal service contributions from telecommunications companies does not violate the nondelegation doctrine.

“The question in this case is whether the universal-service scheme . . . violates the Constitution’s nondelegation doctrine, either because Congress has given away its power to the FCC or because the FCC has given away its power to a private company. We hold that no impermissible transfer of authority has occurred.”

Justice Kagan, writing for the Court

Background:

The Telecommunications Act of 1996 directed the FCC to establish a Universal Service Fund to subsidize telecommunications services in rural and low-income areas, schools, and libraries. See 47 U.S.C. § 254. The Act instructs that “universal service” should be available at “just, reasonable, and affordable” rates. Id. § 254(i). Telecommunications carriers must make contributions to the fund that are “sufficient” to “advance universal service.” See id § 254(d)–(e). In defining universal service, the Commission must consider “the extent to which” telecommunications services “are essential to education, public health, or public safety”; are “subscribed to by a substantial majority of residential customers”; and “are consistent with the public interest, convenience, and necessity.” Id. § 254(c)(1). The FCC’s policies to “preserv[e] and advance[]” universal service must be based on six specific principles and any additional principles the FCC determines are “necessary and appropriate for the protection of the public interest, convenience, and necessity and are consistent with this chapter.” Id. § 254(b).

In 1997, the FCC directed a private not-for-profit corporation, the Universal Service Administrative Company (USAC), to help the FCC administer the fund. Among other things, USAC helps the FCC determine the size of carriers’ contributions by providing financial projections to the Commission.

A carrier and others challenged the FCC’s 2022 contribution rate in the U.S. Court of Appeals for the Fifth Circuit. They argued that the Universal Service Fund is unconstitutional because Congress delegated legislative power to the FCC and the Commission then redelegated power to USAC. A Fifth Circuit panel rejected the challenge. Sitting en banc, the full Fifth Circuit held 9-7 that the combination of Congress’s delegation to the FCC and the FCC’s delegation to USAC violates the Constitution’s vesting of legislative power in Congress.

Issues:

Did Congress violate the nondelegation doctrine when it authorized the FCC to determine the amounts that telecommunications carriers must contribute to the Universal Service Fund; did the FCC violate the nondelegation doctrine by using USAC projections to determine contribution rates; or did the combination of these delegations violate the nondelegation doctrine?

Court’s Holding:

Neither Congress nor the FCC violated the nondelegation doctrine. Section 254 provides an intelligible principle to constrain the FCC’s discretion in determining the amount of money to collect to support universal service and in defining universal service. The FCC did not improperly delegate to USAC because the FCC maintained the final say as to contribution rates. Those two lawful delegations do not become unconstitutional when combined.

What It Means:

The Court’s decision upholds the Universal Service Fund’s contribution mechanism, applying the traditional intelligible-principle test. The Court reiterated that exercises of Congress’s tax power are evaluated under “the usual nondelegation standard.” It also refused to draw a distinction for nondelegation purposes between statutes authorizing fees and statutes authorizing taxes.
The Court nonetheless emphasized that the intelligible-principle test is not toothless: Congress must make “clear both the general policy that the agency must pursue and the boundaries of its delegated authority”; those standards must “enable both the courts and the public to ascertain whether the agency has followed the law”; and the acceptable degree of discretion “varies according to the scope of the power congressionally conferred.” That leaves open the possibility that some statutes might still be successfully challenged on nondelegation grounds.
On the private nondelegation question, the Court held that the FCC did not unconstitutionally delegate authority to USAC because the FCC retained ultimate “decision-making power,” even if USAC gave “recommendations.” The Court was not willing to scrutinize whether the FCC was practically functioning merely as a rubber stamp.

The Court rejected the Fifth Circuit’s “combination theory” of unconstitutionality as novel and unsound. Because the public and private nondelegation doctrines “do not operate on the same axis,” measures implicating one do not “compound” measures implicating the other. The Court distinguished Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), where both measures at issue “limited the same thing—the President’s power to remove executive officers.”
Justice Gorsuch, joined by Justice Thomas and Justice Alito, dissented. He would have held that the funding mechanism is novel and violates the intelligible-principle test. In the end, however, he expressed “some optimism” because the Court did not address two provisions that allow the FCC to provide more “advanced” and “additional” services for schools, libraries, and healthcare providers—§ 254(c)(3) and (h)(2). Those provisions remain open to challenge.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery
+1 202.955.8515
sdelery@gibsondunn.com

Eugene Scalia
+1 202.955.8673
Assistant Dawn J. Forrester: dforrester@gibsondunn.com

Helgi C. Walker
+1 202.887.3599
hwalker@gibsondunn.com

This alert was prepared by associates Zachary Tyree and Connor P. Mui.

Kennedy v. Braidwood Management, Inc., No. 24-316 – Decided June 27, 2025

Today, the Supreme Court held 6-3 that the members of the U.S. Preventive Task Force are inferior officers whose appointment by the HHS Secretary is consistent with the Appointments Clause.

“Task Force members remain subject to the Secretary of HHS’s supervision and direction, and the Secretary remains subject to the President’s supervision and direction. So under Article II and this Court’s precedents, Task Force members are inferior officers, and Congress may vest the power to appoint them in the Secretary of HHS.’”

Justice Kavanaugh, writing for the Court

Background:

The U.S. Preventive Services Task Force is a 16-member volunteer body within the Public Health Service of the Department of Health and Human Services (“HHS”). Task Force members are experts in prevention, evidence-based medicine, and primary care who develop recommendations about preventive health services. They serve four-year terms, and there are no statutory restrictions on their removal. The current Task Force members were appointed by the Director of the Agency for Healthcare Research and Quality; their appointments were later ratified by the HHS Secretary in June 2023.

In codifying the Task Force, Congress directed that “[a]ll members of the Task Force . . . and any recommendations made by such members, shall be independent and, to the extent practicable, not subject to political pressure.” 42 U.S.C. § 299b-4(a)(6). Although the Task Force originally made only voluntary recommendations, in the Affordable Care Act of 2010, Congress determined that some of the Task Force’s recommendations would create binding obligations for health-insurance issuers and group health plans to cover certain preventive health services, unless rejected by the HHS Secretary. 42 U.S.C. § 300gg-13(a)-(b).

Several small businesses and individuals objected to the requirement—recommended by the Task Force—that health-insurance issuers and group plans cover certain HIV-prevention medications. Plaintiffs argued that the structure of the Task Force violated the Appointments Clause because Task Force members are “principal officers” and must therefore be nominated by the President and confirmed by the Senate. The HHS Secretary disagreed, arguing that Task Force members are “inferior officers” who may be appointed by the HHS Secretary.

The district court ruled for Plaintiffs, agreeing that the Task Force members’ appointments violated the Constitution because they were principal officers. The Fifth Circuit affirmed on the ground that “the Task Force cannot be ‘independent’ and free from ‘political pressure’ on the one hand, and at the same time be supervised by the HHS Secretary, a political appointee, on the other.”

Issue:

Whether appointment of the U.S. Preventive Services Task Force members by the HHS Secretary is consistent with the Appointments Clause.

Court’s Holding:

Yes. Task Force members are inferior officers: they are removable at will by the HHS Secretary and their recommendations can be rejected by the HHS Secretary before having any legal effect.

What It Means:

Today’s decision reiterates the Court’s commitment to enforcing the Appointments Clause and the chain of political accountability that is central to its design. See, e.g., Edmond v. United States, 520 U.S. 651 (1997); Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010); Lucia v. SEC, 585 U.S. 237 (2018).
In making the principal versus inferior officer determination, the Court emphasized that at-will removal by a principal officer is strong evidence of inferiority. At-will removal is a “powerful tool for control” and historical practice supports treating officers who can be removed at will by principal officers as inferior.
The Court also emphasized that the default presumption is that all officers are removable at will, and unless Congress clearly and explicitly states otherwise, the Court will not presume or imply restrictions on officers’ removal.
The Court clarified that the inability of a principal officer to compel a subordinate officer’s actions does not mean the subordinate officer is not inferior. The superior officer’s ability to overrule or reject a subordinate’s decision is sufficient supervisory authority.
The Court’s decision provides guidance to the potential avenues available to businesses seeking to challenge actions by federal government actors who may not have been validly appointed. Important considerations include assessing whether the actors’ decision may be overruled or rejected by senior government personnel and whether statutory language about independence is sufficient to overcome the presumption of at-will removal.

The Court’s opinion is available here.

Appellate and Constitutional Law

Thomas H. Dupree Jr. +1 202.955.8547 tdupree@gibsondunn.com	Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com	Julian W. Poon +1 213.229.7758 jpoon@gibsondunn.com
Lucas C. Townsend +1 202.887.3731 ltownsend@gibsondunn.com	Bradley J. Hamburger +1 213.229.7658 bhamburger@gibsondunn.com	Brad G. Hubbard +1 214.698.3326 bhubbard@gibsondunn.com

Related Practice: Administrative Law and Regulatory

Stuart F. Delery +1 202.955.8515 sdelery@gibsondunn.com	Eugene Scalia +1 202.955.8673 Assistant Dawn J. Forrester: dforrester@gibsondunn.com	Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com
Matt Gregory +1 202.887.3635 mgregory@gibsondunn.com

This alert was prepared by associates Salah Hawkins and Aly Cox.

Twelve Gibson Dunn partners have been named to the inaugural Lawdragon 500 Leading Global Bankruptcy & Restructuring Lawyers list — individuals who are adept at “tuning out the noise and finding the path forward through tough negotiation, litigation or complex financial arrangements.”

Kudos to partners Michael J. Cohen, Steven A. Domanowski, Jean-Pierre Farges, AnnElyse Scarlett Gains, Jason Zachary Goldstein, Scott J. Greenberg, Jeffrey C. Krause, Caith Kushner, Frederick T. Lee, Keith R. Martorana, Matthew J. Williams, and C. Lee Wilson.

From the Derivatives Practice Group: This week, ESMA was active with a number of releases while the CFTC’s Division of Market Oversight extended its no action position to certain non-U.S. swap dealers concerning certain swap reporting requirements Part 45 and Part 46 of the CFTC’s regulations.

New Developments

CFTC Staff Issues No-Action Letter to MIAX Futures Exchange, LLC. On June 25, the Division of Market Oversight (“DMO”) of the CFTC issued a no-action letter stating that it will not recommend enforcement action against MIAX Futures Exchange, LLC (“MIAX”) for temporarily providing for the trading of MIAX’s Minneapolis Hard Red Spring Wheat options on futures exclusively through block trades due to the lack of availability of an electronic trading system, subject to certain conditions set forth in the letter. The DMO stated that it believes the temporary no-action positions are warranted to provide participants in the market with a means to trade out of or offset their open positions in certain expirations when electronic trading is no longer available [NEW]

CFTC Staff Issues No-Action Letter Extension Regarding Non-U.S. Swap Dealers. On June 23, the DMO of the CFTC issued a no-action letter extending the no-action position of CFTC Letter No. 22-14 concerning certain swap reporting requirements of Part 45 and Part 46 of the CFTC’s regulations (the “Amended SDR Reporting Rules”). The letter applies to non-U.S. swap dealers (“SDs”) and non-U.S. major swap participants (“MSPs”) established under the laws of Australia, Canada, the European Union, Japan, Switzerland or the United Kingdom, that are not part of an affiliated group in which the ultimate parent entity is a U.S. swap dealer, U.S. major swap participant, U.S. bank, U.S. financial holding company or U.S. bank holding company. According to the letter, the DMO will not recommend enforcement action against such an entity for failure to comply with the Amended SDR Reporting Rules with respect to its swaps with non-U.S. counterparties that are not guaranteed affiliates, or conduit affiliates, of a U.S. person, until the earlier of: (a) 30 days following the issuance of a comparability determination by the CFTC with respect to the Amended SDR Reporting Rules for the jurisdiction in which the non-U.S. SD or non-U.S. MSP is established, and (b) the applicable compliance date of a CFTC action addressing such obligations. [NEW]

U.S. Senate Passes GENIUS Act. On June 16, the Senate passed the bipartisan Guiding and Establishing National Innovation for US Stablecoins Act, or GENIUS Act, in a 68-30 vote. If passed in the House, the GENIUS Act would establish the first federal rules for regulating stablecoins, a type of digital asset pegged to the value of another asset, oftentimes the U.S. dollar. The GENIUS Act now heads for a vote in the House.

Former CFTC Chairman William Bagley Dies at 96. On June 16, CFTC acting Chairman Caroline D. Pham released a statement on the passing of the Hon. William T. Bagley, the CFTC’s first chairman. Appointed to the position by President Gerald Ford, William Bagley served as the Chairman of the CFTC from 1975 to 1978. He passed away on June 9, 2025 at his home in San Rafael, California.

New Developments Outside the U.S.

ESMA Narrows Down Scope of CSDR Cash Penalties Trading. On June 26, ESMA published a final report that specifies the scope of Central Securities Depositories Regulation (“CSDR”) cash penalties which the agency describes asin an effort to support its simplification and burden reduction initiative in post-trading. ESMA provided technical advice to the European Commission on the scope of settlement discipline that it said is in line with the revised settlement discipline framework set out in CSDR Refit, identifying (1) the causes of settlement fails that are considered as not attributable to the participants in the transaction, and (2) the circumstances in which operations are not considered as trading. ESMA also identified a broad range of scenarios that would not trigger CSDR cash penalties. [NEW]

ESMA Provides Advice on Eligible Assets for UCITS. On June 26, ESMA published its advice to the European Commission on the review of the Undertakings for Collective Investment in Transferable Securities (“UCITS”) Eligible Assets Directive (“EAD”). The EAD is an implementing directive providing clarification on the assets a UCITS can invest in. ESMA said that it provided in the Technical Advice a comprehensive assessment of the EAD’s implementation across Members States and made proposals to ensure regulatory clarity and uniformity across jurisdictions. [NEW]

ESMA Suggests Amendments to the DLT Pilot Regime to Make It Permanent. On June 25, ESMA published a report on the Distributed Ledger Technology (“DLT”) Pilot Regime. ESMA also provided an overview of the EU market for authorized DLT market infrastructures and recommendations on how to expand participation in the DLT Pilot Regime. ESMA indicated that the report contained information about business models, types of DLT financial instruments offered, and technical or legal issues encountered by supervisors to date. ESMA also said that it analysed exemptions requested by DLT market infrastructures and the conditions under which National Competent Authorities have granted those exemptions. [NEW]

ESMA Provides Guidance on Key Tool for CCP Resolution. On June 25, ESMA published its first central counterparties (“CCPs”) resolution briefing, which it said aims to support National Resolution Authorities (“NRAs”) on the operationalization of the cash call mechanism. The briefing, developed by ESMA’s CCP Resolution Committee, provides a methodology to be considered by NRAs when including the resolution cash call in CCP resolution plans. [NEW]

ESMA Consults on Margin Transparency and Cost of Clearing. On June 24, ESMA launched two public consultations following the review of the European Market Infrastructure Regulation (“EMIR 3”). ESMA encouraged stakeholders to share their views about (1) the type of information to be disclosed by clearing service providers (“CSPs”) to their clients, and (2) the requirements regarding CCPs’ margin simulation tool and CSPs’ margin simulations, as well as the type of information to be provided by CCPs and CSPs regarding their margin models. [NEW]

ESMA Invites Feedback on How to Simplify Funds’ Data Reporting. On June 23, ESMA launched a discussion paper to gather feedback and inputs on how to integrate funds reporting, aiming to reduce the burden for market participants. The discussion paper outlines options for improving different aspects of reporting, such as the scope of data, reporting processes and systems to ensure more efficient reporting and sharing of data between the authorities. [NEW]

ESMA Calls for Input on Streamlining Financial Transaction Reporting. On June 23, ESMA launched a call for evidence to gather feedback on opportunities to simplify, better integrate and streamline supervisory reporting. ESMA said that it aims to identify how best to enhance efficiency and reduce the costs associated with supervisory reporting while maintaining a strong level of transparency and ensuring effective oversight from the authorities. [NEW]

ESMA Puts Forward Q&A on Shared Order Book Model Under MiCA. On June 20, ESMA published a new Q&A on the non-compliance of the shared order book model with the Markets in Crypto-Assets Regulation (“MiCA”). The Q&A addressed the model where two or more crypto-asset platforms merge their individual order books into a single, unified order book from which orders are matched. ESMA clarified that where such a model involves non-EU trading platforms, it breaches the authorization requirements under MiCA. [NEW]

ESMA Publishes Final Report on Active Account Requirement Under EMIR 3. On June 19, ESMA published its final report on the Regulatory Technical Standards  specifying the conditions under which the active account requirement should be met, as mandated under  EMIR 3. ESMA has streamlined the operational conditions and the stress-testing in response to feedback to its public consultation.

ESMA Consults on Methodology for Computing EU Member States’ Market Capitalization and Market Capitalization Ratios. On June 19, ESMA announced that it is consulting on the methodology for calculating market capitalization and market capitalization ratios, as mandated by the Directive on faster and safer relief of excess withholding taxes. The proposed methodology is aligned with existing transparency frameworks and uses transaction data reported under the Regulation on markets in financial instruments.

ESMA Appoints Ante Žigman to Management Board and Appoints New Chairs to Two Standing Committees. On June 18, ESMA appointed Ante Žigman as a new member of its Management Board. The election took place at the Board of Supervisors meeting in Warsaw on June 17, and he will take up his position on 6 July 2025.

New Industry-Led Developments

ISDA Publishes Paper on Developments in Interest Rate Derivatives Markets in Mainland China and Hong Kong. On June 24, ISDA published a research paper that analyzes interest rate derivatives (“IRD”) trading activity reported in mainland China and Hong Kong. Key highlights from the report include that (1) China’s renminbi (“RMB”)-denominated IRD market has expanded significantly since 2022 and that (2) the share of RMB-denominated IRD traded notional in Hong Kong overall grew to 10.2% in 2024. [NEW]

ISDA, SIFMA Comments on Stress Capital Buffer Requirement Proposal. On June 23, ISDA and the Securities Industry and Financial Markets Association (“SIFMA”) submitted a comment letter on a proposal by the Federal Reserve Board of Governors to revise its capital plan rule and stress capital buffer requirement (“SCB”). In the letter, ISDA and SIFMA commended the Board for initiating efforts to address longstanding and unwarranted volatility of the SCB, primarily by averaging SCB results over a two-year period. However, the letter notes the proposal fails to address more fundamental drivers of SCB volatility, including the implausibility of the supervisory stress scenarios and the overlap with the risk-based capital framework. [NEW]

ISDA Publishes Position Paper on SFDR Review. On June 23, ISDA and the Association for Financial Markets in Europe published a position paper on the review of the Sustainable Finance Disclosure Regulation (“SFDR”). ISDA said that the paper acknowledges that the SFDR needs to be revised in line with the objectives of the sustainability omnibus to streamline the EU sustainable finance framework and address the implementation challenges experienced by market participants. The paper sets out several priorities, including streamlining disclosure requirements to focus on information most essential for investors and transitioning to a product categorization system while minimizing market disruption. [NEW]

ISDA Publishes Research Note on Interest Rate Derivatives Trading in the US, EU and UK. On June 18, ISDA published a research note that analyzes changes in interest rate derivatives trading activity in the US, EU and UK from 2021 to 2024. It examines how central bank interest rate policies influenced IRD trading volumes and how the composition of interest rate derivatives products has evolved due to the transition to alternative reference rates.

ISDA Responds to ESMA on Clearing Threshold Regime. On June 16, ISDA responded to ESMA’s consultation on the new clearing threshold regime. The new regime, based on uncleared positions, was introduced in the context of EMIR 3. In the response, ISDA comments on the data analysis provided by ESMA, the interaction with the active account requirements, in particular condition 2 of EMIR 3 Article 7a(1), and proposes an implementation approach suitable for financial and non-financial counterparties, in line with the European Union’s broader simplification and burden reduction agenda.

ISDA Launches Pre-adherence Period for Notices Hub. On June 12, ISDA began a pre-adherence process for the ISDA Notices Hub. The new protocol will change all agreements between adhering firms to allow them to use the ISDA Notices Hub – a secure online platform managed by S&P Global Market Intelligence that will enable the instantaneous delivery and receipt of termination notices and waivers ISDA has begun a pre-adherence process for the ISDA Notices Hub, enabling firms to sign up to a free protocol that will allow them to use the new platform when it launches on July 15.

The following Gibson Dunn attorneys assisted in preparing this update: Jeffrey Steiner, Adam Lapidus, Marc Aaron Takagaki, Hayden McGovern, Karin Thrasher, and Alice Wang.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Derivatives practice group, or the following practice leaders and authors:

Jeffrey L. Steiner, Washington, D.C. (202.887.3632, jsteiner@gibsondunn.com)

Michael D. Bopp, Washington, D.C. (202.955.8256, mbopp@gibsondunn.com)

Michelle M. Kirschner, London (+44 (0)20 7071.4212, mkirschner@gibsondunn.com)

Darius Mehraban, New York (212.351.2428, dmehraban@gibsondunn.com)

Jason J. Cabral, New York (212.351.6267, jcabral@gibsondunn.com)

Adam Lapidus, New York (212.351.3869, alapidus@gibsondunn.com )

Stephanie L. Brooker, Washington, D.C. (202.887.3502, sbrooker@gibsondunn.com)

William R. Hallatt, Hong Kong (+852 2214 3836, whallatt@gibsondunn.com )

David P. Burns, Washington, D.C. (202.887.3786, dburns@gibsondunn.com)

Marc Aaron Takagaki, New York (212.351.4028, mtakagaki@gibsondunn.com )

Hayden K. McGovern, Dallas (214.698.3142, hmcgovern@gibsondunn.com)

Karin Thrasher, Washington, D.C. (202.887.3712, kthrasher@gibsondunn.com)

Gibson Dunn represented Welltower Inc. and Welltower OP LLC on a public offering of $600 million aggregate principal amount of Welltower OP’s 4.500% Notes due 2030 and $650 million aggregate principal amount of Welltower OP’s 5.125% Notes due 2035 pursuant to its automatic shelf registration statement. The notes are fully and unconditionally guaranteed by Welltower Inc.

Our team included partner Andrew Fabens and associates Lawrence Lee, Ian Mathenge, and Yoo Jung Hah. Partner Brian Kniesly and associate Ray Noonan advised on tax matters.

The Ninth Circuit’s ruling against the importer defendant further opens the door for the government and private relators to police customs and tariff compliance through the FCA.

Overview

In April, Gibson Dunn published a Client Alert forecasting increased False Claims Act (FCA) enforcement of customs violations in the wake of President Trump’s new tariff regime. That alert previewed a pending case in the Ninth Circuit with jurisdictional implications for such uses of the FCA. The Ninth Circuit recently ruled against the importer defendant, further opening the door for the government and private relators to police customs and tariff compliance through the FCA and raising the stakes for importers and others in the import chain.

Case Summary

On June 23, 2025, the Ninth Circuit upheld an almost $26 million jury verdict against a pipe importer in a case alleging customs duty evasion under the FCA. In the case, Island Industries, Inc. (Island) alleged that its competitor Sigma Corporation (Sigma) made two types of false statements on customs forms to avoid antidumping duties. Island alleged that Sigma: (1) declared that antidumping duties did not apply to its imported products; and (2) described its products as “steel couplings” to customs officials but marketed them to customers as “welded outlets.”[1] The United States declined to intervene. At trial, a jury sided with Island and awarded an over $8 million verdict. The trial judge tripled the verdict and awarded penalties, as mandated by the FCA, resulting in almost $26 million in damages and civil penalties.[2]

On appeal, Sigma argued that the civil penalties provision of the Tariff Act, 19 U.S.C. § 1952, “displaces the FCA” as the sole mechanism for recovering antidumping duties an importer has fraudulently avoided paying.[3] Sigma also argued that it could not be liable under the FCA because it “had no obligation to pay antidumping duties” under the statute.[4] Sigma also challenged, in the Court of International Trade (CIT), a Department of Commerce ruling that its “welded outlets” fell within the scope of the relevant antidumping order. As a result, on appeal the Ninth Circuit was confronted not only with a question about whether a key element of the FCA was satisfied, but also with whether it had jurisdiction over the case at all—or whether, alternatively, the case “needed to be initiated in the CIT and then appealed (if at all) to the Federal Circuit.”[5]

The Ninth Circuit held as follows:

Relators can bring FCA actions for customs duties violations in federal district court. Although under long-standing Ninth Circuit precedent[6] an FCA suit filed by the United States to recover damages for the improper avoidance of customs duties must be brought in the CIT, “a relator is not the United States” for purposes of that requirement—meaning there is “no jurisdictional obstacle” to such FCA actions brought by relators in federal district court.[7]

The civil penalties provision of the Tariff Act is not the sole mechanism for recovering fraudulently avoided customs duties. Importers who improperly avoid customs duties are also subject to FCA liability. Neither statute’s text identifies it as the exclusive remedy for such conduct, and the statutes’ statutory and legislative histories suggest Congress “specifically intended the two statutes to coexist.”[8]

An “obligation” to pay money to the government is an essential element of a reverse false claims action to recover customs duties, and the obligation begins at the time of import.[9] Sigma argued it had no obligation to pay antidumping duties because the amount owed had yet to be fixed and was thus contingent. The Court found that Sigma “became liable for antidumping duties when it imported its welded outlets . . . even though the amount due was not yet fixed through liquidation.”[10] This holding tracks the text of the FCA and prior caselaw interpreting the definition of “obligation.”[11]

Consistent with the Supreme Court’s SuperValu decision, courts evaluating evasion of customs duties claims should evaluate the FCA’s scienter element from the defendant’s subjective point of view. The Court thus rejected Sigma’s argument that it lacked scienter because it would have been objectively reasonable for Sigma to believe that it did not owe antidumping duties.[12] The Court clarified that Sigma could not “escape liability by arguing that an objectively reasonable person could have believed that the statements [Sigma] submitted to the government were true.[13]

Implications

The Ninth Circuit’s ruling likely will encourage FCA enforcement of customs violations—by both the federal government and private relators. Particularly in the Ninth Circuit, which has jurisdiction over a number of the largest ports of entry in the United States, private relators may be further emboldened to pursue FCA cases against importers and others in the import chain, including in declined cases. Moreover, the Ninth Circuit’s decision highlights that importers accused of improperly avoiding customs duties face the twin risks of an enforcement action under the FCA and a separate one for civil penalties under the Tariff Act––which, in cases of fraud or gross negligence, can result in civil fines that are four times the value of the imported merchandise or the amount of the avoided duties.[14] Finally, the relator in the Sigma case was the defendant’s competitor—highlighting the risk that competitors may be incentivized to file qui tam suits against each other where they perceive (accurately or not) that they are being disadvantaged by violations of customs rules by others.

Given the sheer size of the import market in this country and the current elevated levels of custom duties, the risks for importers are enormous. Thus, as we wrote in April, companies should ensure they have robust compliance mechanisms to prevent, detect, and remedy customs violations—not only their own violations, but those of their upstream and downstream business partners.

[1] Island Indus., Inc. v. Sigma Corp., No. 22-55063, 2025 WL 1730271 (9th Cir. June 23, 2025).

[2] 31 U.S.C. § 3729(a)(1).

[3] Sigma Corp., at *18.

[4] Id. at *22.

[5] Id. at *16.

[6] See United States v. Universal Fruits & Vegetables Corp., 370 F.3d 829, 836 & n.13 (9th Cir. 2004) (holding that proper “venue” for a FCA case based on customs duties brought by the United States is the CIT); but see United States v. Universal Fruits & Vegetables Corp., 30 C.I.T. 706, 711 (2006) (the CIT is “not vested with the authority to grant Plaintiff’s claim for damages and penalties pursuant to the FCA”).

[7] Sigma Corp., at *16-17.

[8] Id. at *20-21.

[9] 31 U.S.C. § 3729(a)(1)(g).

[10] Sigma Corp., at *23.

[11] See 31 U.S.C. 3729(b)(3) (“obligation” means “established duty, whether or not fixed”); United States ex rel. Lesnik v. ISM Vuzem d.o.o., 112 F.4th 816, 821 (9th Cir. 2024) (“‘fixed’ referred to the amount of an obligation, not whether any obligation existed”).

[12] Sigma Corp., at *25.

[13] Id.

[14] 19 U.S.C. § 1592(c)(1).

The following Gibson Dunn lawyers prepared this update: Jake Shields, Michael Dziuban, and Andrew Becker.

Gibson Dunn lawyers regularly counsel clients on the False Claims Act issues and are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any leader or member of the firm’s False Claims Act/Qui Tam Defense or International Trade Advisory & Enforcement practice groups:

False Claims Act/Qui Tam Defense:

Washington, D.C.
Jonathan M. Phillips – Co-Chair (+1 202.887.3546, jphillips@gibsondunn.com)
Stuart F. Delery (+1 202.955.8515,sdelery@gibsondunn.com)
F. Joseph Warin (+1 202.887.3609, fwarin@gibsondunn.com)
Jake M. Shields (+1 202.955.8201, jmshields@gibsondunn.com)
Gustav W. Eyler (+1 202.955.8610, geyler@gibsondunn.com)
Lindsay M. Paulin (+1 202.887.3701, lpaulin@gibsondunn.com)
Geoffrey M. Sigler (+1 202.887.3752, gsigler@gibsondunn.com)
Joseph D. West (+1 202.955.8658, jwest@gibsondunn.com)

San Francisco
Winston Y. Chan – Co-Chair (+1 415.393.8362, wchan@gibsondunn.com)
Charles J. Stevens (+1 415.393.8391, cstevens@gibsondunn.com)

New York
Reed Brodsky (+1 212.351.5334, rbrodsky@gibsondunn.com)
Mylan Denerstein (+1 212.351.3850, mdenerstein@gibsondunn.com)

Denver
John D.W. Partridge (+1 303.298.5931, jpartridge@gibsondunn.com)
Ryan T. Bergsieker (+1 303.298.5774, rbergsieker@gibsondunn.com)
Monica K. Loseman (+1 303.298.5784, mloseman@gibsondunn.com)

Dallas
Andrew LeGrand (+1 214.698.3405, alegrand@gibsondunn.com)

Los Angeles
James L. Zelenay Jr. (+1 213.229.7449, jzelenay@gibsondunn.com)
Nicola T. Hanna (+1 213.229.7269, nhanna@gibsondunn.com)
Jeremy S. Smith (+1 213.229.7973, jssmith@gibsondunn.com)
Deborah L. Stein (+1 213.229.7164, dstein@gibsondunn.com)
Dhananjay S. Manthripragada (+1 213.229.7366, dmanthripragada@gibsondunn.com)

Palo Alto
Benjamin Wagner (+1 650.849.5395, bwagner@gibsondunn.com)

International Trade Advisory & Enforcement:

United States:
Ronald Kirk – Co-Chair, Dallas (+1 214.698.3295, rkirk@gibsondunn.com)
Adam M. Smith – Co-Chair, Washington, D.C. (+1 202.887.3547, asmith@gibsondunn.com)
Stephenie Gosnell Handler – Washington, D.C. (+1 202.955.8510, shandler@gibsondunn.com)
Donald Harrison – Washington, D.C. (+1 202.955.8560, dharrison@gibsondunn.com)
Christopher T. Timura – Washington, D.C. (+1 202.887.3690, ctimura@gibsondunn.com)
Matthew S. Axelrod – Washington, D.C. (+1 202.955.8517, maxelrod@gibsondunn.com)
David P. Burns – Washington, D.C. (+1 202.887.3786, dburns@gibsondunn.com)
Nicola T. Hanna – Los Angeles (+1 213.229.7269, nhanna@gibsondunn.com)
Courtney M. Brown – Washington, D.C. (+1 202.955.8685, cmbrown@gibsondunn.com)
Amanda H. Neely – Washington, D.C. (+1 202.777.9566, aneely@gibsondunn.com)
Samantha Sewall – Washington, D.C. (+1 202.887.3509, ssewall@gibsondunn.com)
Michelle A. Weinbaum – Washington, D.C. (+1 202.955.8274, mweinbaum@gibsondunn.com)

For the second time in two weeks, Litigation Daily has recognized two Gibson Dunn teams in its Litigator of the Week Runners-Up and Shout Outs column:

A patent litigation team at Gibson, Dunn & Crutcher led by partners Daniel Thomasch, Kieran Kieckhefer and Jason Lo helped client Western Digital whittle down a patent award of more than $550 million to nominal damages of $1. U.S. District Senior Judge James Selna in Santa Ana, California, had earlier excluded the damages expert put forward by the plaintiff Spex Technologies. In a ruling on post-trial motions made public this week, Selna found that the evidence at trial did not support the jury’s damages verdict. The Gibson Dunn team included partner Stuart Rosenberg, of counsel Frank Coté, counsel Ahmed ElDessouki and associates Darish Huynh, Isaac Rottman, Lillian Mao, Yan Zhao and Eleni Ingram.

Shout-out to a separate Gibson Dunn team led by Theane Evangelis and Marcellus McRae, who helped the city of Los Angeles fend off a request for a receivership over the city’s homelessness response system. The Gibson Dunn team signed onto the case less than a week before a major evidentiary hearing in May. “Although democracies can be inefficient and even wasteful, only the voters of Los Angeles have the power to elect representatives to solve these problems,” wrote U.S. District Judge David Carter in denying the receivership this week. The judge, however, did institute a monitor to oversee the city’s compliance with its settlement agreement with the LA Alliance for Human Rights and mandated quarterly, in-court hearings to ensure the city is meeting its commitments. The Gibson Dunn team also included Bradley Hamburger, Angelique Kaounis and Kahn Scolnick.

To read the complete article, visit Law.com (subscription required).

Reprinted with permission from the June 27, 2025 edition of “The AmLaw Litigation Daily” © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Partner Michele Maryott has been named as a recipient of Bloomberg Law’s inaugural “Unrivaled” award, which celebrates the “trial lawyers who lead the legal profession in high-stakes and impactful trials and settlements.”

Michele shared with the publication that her experience participating in a jury trial as a second-year associate solidified her passion for trial law. “I loved digging into the facts, understanding what happened and why, and then figuring out how to draw from the common human experience to tell the story in a way that would resonate with jurors.”

She added, “I believed so strongly that our client had done the right thing. There was no question for me that I wanted to be a trial lawyer after that experience.”

Michele is Partner-in-Charge of our Orange County office and Co-Chair of our Trials Practice Group.

A recent declination of prosecution for a private equity firm provides a first look at how timely voluntary self-disclosure, extensive cooperation, and proactive remediation can mitigate the risk of criminal and civil penalties for acquirors when discovering violations of national security-related laws by acquirees, including those related to economic sanctions and export controls.

Executive Summary

On June 16, 2025, the Department of Justice’s (DOJ) National Security Division (NSD) Counterintelligence and Export Control Section and the U.S. Attorney’s Office for the Southern District of Texas (SDTX) announced the first-ever declination against an acquirer and its affiliates under NSD’s Voluntary Self Disclosures in Connection with Acquisitions Policy (the “M&A Policy”). The current version of the M&A Policy, promulgated in March 2024 as part of revisions to NSD’s Enforcement Policy for Business Organizations (the “NSD Enforcement Policy”), is aimed at incentivizing acquiring companies to make timely disclosures of misconduct uncovered during the M&A process, cooperate with subsequent investigations, and quickly remediate the behavior at issue.

The declination was part of a broader set of resolutions, including a non-prosecution agreement (NPA) with the acquired company and a plea agreement with the acquired company’s former chief executive officer (CEO), that was coordinated between DOJ and other agencies, including the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Commerce Department’s Bureau of Industry and Security (BIS).

These resolutions follow the DOJ Criminal Division’s May 12, 2025 announcement of its new approach to white collar and corporate enforcement, as discussed in our prior client alert. The Criminal Division’s announced priorities highlight national security-related offenses, including sanctions evasion, as a key area of focus. These resolutions, reached during the Biden Administration but announced during the Trump Administration, offer an example of how DOJ, in coordination with other federal agencies, enforces such priorities in the M&A context. The resolutions also demonstrate the substantial benefits that can be obtained by acquirors, and potentially acquirees, if they promptly discover potential wrongdoing, make timely voluntary self-disclosures, carry out swift remedial action, and cooperate with subsequent action by authorities.

Background

According to the resolution documents, after acquiring Texas-based Unicat Catalyst Technologies LLC (Unicat), private equity firm White Deer Management LLC (White Deer) discovered that Unicat’s co-founder and former CEO Mani Efran had conspired to violate U.S. economic sanctions by directing the company to offer bids and conduct sales to customers in Iran, Syria, Venezuela, and Cuba over the course of roughly seven years. This directive resulted in 23 illegal sales of chemical catalysts used in oil refining and steel production.

In addition to the illicit sales, some of which also violated export control laws, Efran and others made false statements in export documents and financial records regarding the locations and identities of customers, deceived some Unicat employees regarding the legality of conducting business with customers subject to sanctions, and falsified invoices to reduce tariffs on catalysts imported from China. In total, Unicat generated about $3.33 million in revenue from unlawful sales and caused a loss to the United States of nearly $1.66 million in taxes, duties, and fees. Under Efran’s leadership, Unicat made representations and warranties that the company was following U.S. sanctions and export control laws during acquisition negotiations. In June 2021, after Unicat had been acquired by White Deer, Unicat’s new leadership discovered dealings with a customer based in Iran, a comprehensively sanctioned jurisdiction. The company immediately cancelled the pending transaction, and, over the next month, directed outside counsel to launch an investigation. After determining there were possible criminal violations by Unicat employees related to multiple transactions, both companies made multiple voluntary self-disclosures to the U.S. government, including DOJ, OFAC, and BIS. A total of approximately ten months had passed between Unicat’s September 2020 acquisition and the voluntary self-disclosures of the misconduct.

Declination of Prosecution Pursuant to the M&A Policy

DOJ’s declination was made pursuant to NSD’s M&A Policy, a part of its NSD Enforcement Policy. The policy, most recently updated in March 2024, offers protections for acquiring companies against criminal prosecution for misconduct they uncover during, or shortly after, an acquisition. Specifically, these protections apply when an acquiror 1) concludes a “lawful, bona fide acquisition of another company;” 2) makes a timely and voluntary self-disclosure to NSD of potential violations of criminal laws by the acquired entity that bear on the national security of the United States; 3) unreservedly cooperates with any NSD investigation; and 4) “timely and appropriately remediates the misconduct.” When an acquiror qualifies for protections, NSD “generally” will not seek a guilty plea while there will be a presumption that it will decline to prosecute. Furthermore, the M&A Policy indicates that while NSD will not automatically extend a similar presumption to the acquired company, it will ascribe credit for self-disclosure by the acquiror, and it will separately examine whether the acquiree meets any of the requirements to be given benefits under the NSD Enforcement Policy.

According to the declination letter, several factors in this case influenced DOJ’s determination that White Deer’s voluntary self-disclosure warranted a declination. Specifically, DOJ highlighted that:

the acquisition of Unicat was lawful and bona fide;
there was no legal requirement for the acquirors to divulge any discovered misconduct;
the disclosure was still timely despite occurring ten months after the Unicat acquisition due to a number of factors, including an investment strategy where White Deer sought to merge Unicat with another company it didn’t purchase until months later, delays to post-acquisition integration efforts stemming from the COVID-19 pandemic, the immediate cancellation of a deal with an Iranian customer by new leadership after learning of it (thereby reducing the potential for additional national security harm), and the rapid disclosure to NSD, which occurred only one month after White Deer became aware of potential violations and before their full extent was understood;
the provision of “exceptional and proactive” cooperation to the government, characterized by quickly finding and disclosing all relevant facts, identifying relevant electronic records on employee and agent personal devices and messaging accounts, providing foreign records in accordance with applicable law, and agreeing to ongoing assistance with government investigations and prosecutions; and
the redress of the misconduct within a year of becoming aware of it, including by firing and disciplining employees involved in it and creating and deploying a compliance and internal controls regime effective at preempting analogous future issues.

The declination letter also noted that prosecution was declined in spite of “aggravating factors at the acquired entity,” such as the involvement of senior management in the wrongdoing, since the source of those aggravating factors had since been removed.

In DOJ’s announcement of the resolution, Assistant Attorney General for National Security John A. Eisenberg highlighted that the decision to “decline prosecution of the acquiror and extend a non-prosecution agreement to the acquired entity…reflects the National Security Division’s strong commitment to rewarding responsible corporate leadership.”

Multiple Resolutions Involving Coordination Among Agencies

While DOJ declined to prosecute acquiror White Deer, DOJ did require that acquiree Unicat enter a Non-Prosecution Agreement (NPA) and forfeit $3,325,052.10, the value of the company’s revenue earned in connection with the violations of sanctions and export control laws. In the NPA, DOJ emphasized certain facts that made the agreement appropriate despite the existence of aggravating factors, including Unicat receiving credit for White Deer’s timely voluntary self-disclosure under the M&A Policy, Unicat’s extensive and proactive cooperation with DOJ’s investigation, including a thorough internal investigation, and its wide-ranging remediation efforts, including creation of a new compliance program.

Notably, DOJ coordinated this resolution with OFAC and BIS, with Unicat agreeing to pay $3,882,797 in administrative penalties to OFAC as part of a corresponding settlement for violations of sanctions laws, and $391,183 in administrative penalties to BIS as part of a similar settlement for violations of export control laws. OFAC allowed for the entire NPA forfeiture payment to count towards its penalty, requiring payment of a residual sum of $557,745, while BIS allowed for the payment to OFAC to be put towards the balance owed to it. OFAC noted that while the maximum statutory civil penalty for the matter was $8,035,626, the settlement amount reflected credit for actions including, but not limited to, voluntary self-disclosure, cooperation with investigations, and remedial measures after discovery of the misconduct, and was the appropriate penalty despite “egregious” violations by former Unicat leadership, employees, and representatives.

Unicat also agreed to pay $1,655,189.57 in restitution to the Department of Homeland Security, Customs and Border Protection (CBP) for tariff avoidance violations, while the former CEO, Mani Erfan, consented to a money judgement of $1,600,000 as part of a guilty plea to charges of conspiring to violate sanctions and conspiring to commit money laundering.

Key Takeaways

Acquirors Have New Guidance to Help Mitigate Criminal Risks

This first-ever declination under the M&A Policy provides important guidance to businesses that frequently acquire other entities on steps to take to mitigate the risk of government enforcement associated with criminal violations of national security laws by acquirees. By uncovering and making a timely voluntary self-disclosure of any misconduct, offering proactive and extensive cooperation to the government, and undertaking prompt effective remediation, acquirors may be able to secure favorable outcomes, such as the declination of prosecution, even where aggravating factors are present. In addition, credit for meeting the requirements of the M&A Policy by the acquiror can extend to the company it acquired, another potentially significant benefit of taking advantage of the policy.

Coordinated Multi-Agency Resolutions

The varied resolutions reached in this case provide an illustrative example of how various government agencies are coordinating their efforts to enforce national security-related laws. DOJ reached distinct resolutions, including a declination, an NPA, and a plea agreement, not only with the companies involved, but also with at least one culpable employee. In addition, DOJ coordinated with OFAC and BIS to reach parallel administrative settlements, with OFAC citing similar factors as DOJ when justifying the penalties it imposed. This case demonstrates that companies can expect violations of national security laws, especially those related to economic sanctions and exports controls, to prompt enforcement action by multiple government stakeholders.

Navigating the Administration’s Enforcement Priorities

Enforcement of national security laws has been announced as a key area of focus for the DOJ. In the context of this enforcement environment, these resolutions provide a roadmap for steps acquiring companies can take to mitigate enforcement risk during the M&A process, including maintaining robust diligence throughout the process, and, in cases where wrongdoing is discovered, being prepared to respond swiftly and transparently.

The following Gibson Dunn lawyers prepared this update: Matthew Axelrod, David Burns, Adam Smith, Christopher Timura, David Wolber, Mason Pazhwak, and Sarah Burns.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or the following leaders and members of the firm’s Sanctions & Export Enforcement, National Security, and International Trade Advisory & Enforcement practice groups:

United States:
Matthew S. Axelrod – Co-Chair, Washington, D.C. (+1 202.955.8517, maxelrod@gibsondunn.com)
Adam M. Smith – Co-Chair, Washington, D.C. (+1 202.887.3547, asmith@gibsondunn.com)
Ronald Kirk – Dallas (+1 214.698.3295, rkirk@gibsondunn.com)
Stephenie Gosnell Handler – Washington, D.C. (+1 202.955.8510, shandler@gibsondunn.com)
Donald Harrison – Washington, D.C. (+1 202.955.8560, dharrison@gibsondunn.com)
Christopher T. Timura – Washington, D.C. (+1 202.887.3690, ctimura@gibsondunn.com)
David P. Burns – Washington, D.C. (+1 202.887.3786, dburns@gibsondunn.com)
Nicola T. Hanna – Los Angeles (+1 213.229.7269, nhanna@gibsondunn.com)
Courtney M. Brown – Washington, D.C. (+1 202.955.8685, cmbrown@gibsondunn.com)
Amanda H. Neely – Washington, D.C. (+1 202.777.9566, aneely@gibsondunn.com)
Samantha Sewall – Washington, D.C. (+1 202.887.3509, ssewall@gibsondunn.com)
Michelle A. Weinbaum – Washington, D.C. (+1 202.955.8274, mweinbaum@gibsondunn.com)
Karsten Ball – Washington, D.C. (+1 202.777.9341, kball@gibsondunn.com)
Hugh N. Danilack – Washington, D.C. (+1 202.777.9536, hdanilack@gibsondunn.com)
Mason Gauch – Houston (+1 346.718.6723, mgauch@gibsondunn.com)
Chris R. Mullen – Washington, D.C. (+1 202.955.8250, cmullen@gibsondunn.com)
Sarah L. Pongrace – New York (+1 212.351.3972, spongrace@gibsondunn.com)
Anna Searcey – Washington, D.C. (+1 202.887.3655, asearcey@gibsondunn.com)
Audi K. Syarief – Washington, D.C. (+1 202.955.8266, asyarief@gibsondunn.com)
Scott R. Toussaint – Washington, D.C. (+1 202.887.3588, stoussaint@gibsondunn.com)
Lindsay Bernsen Wardlaw – Washington, D.C. (+1 202.777.9475, lwardlaw@gibsondunn.com)
Shuo (Josh) Zhang – Washington, D.C. (+1 202.955.8270, szhang@gibsondunn.com)

Asia:
Kelly Austin – Denver/Hong Kong (+1 303.298.5980, kaustin@gibsondunn.com)
David A. Wolber – Hong Kong (+852 2214 3764, dwolber@gibsondunn.com)
Fang Xue – Beijing (+86 10 6502 8687, fxue@gibsondunn.com)
Qi Yue – Beijing (+86 10 6502 8534, qyue@gibsondunn.com)
Dharak Bhavsar – Hong Kong (+852 2214 3755, dbhavsar@gibsondunn.com)
Arnold Pun – Hong Kong (+852 2214 3838, apun@gibsondunn.com)

Europe:
Attila Borsos – Brussels (+32 2 554 72 10, aborsos@gibsondunn.com)
Patrick Doris – London (+44 207 071 4276, pdoris@gibsondunn.com)
Michelle M. Kirschner – London (+44 20 7071 4212, mkirschner@gibsondunn.com)
Penny Madden KC – London (+44 20 7071 4226, pmadden@gibsondunn.com)
Irene Polieri – London (+44 20 7071 4199, ipolieri@gibsondunn.com)
Benno Schwarz – Munich (+49 89 189 33 110, bschwarz@gibsondunn.com)
Nikita Malevanny – Munich (+49 89 189 33 224, nmalevanny@gibsondunn.com)
Melina Kronester – Munich (+49 89 189 33 225, mkronester@gibsondunn.com)
Vanessa Ludwig – Frankfurt (+49 69 247 411 531, vludwig@gibsondunn.com)

Gibson Dunn was named U.S. Law Firm of the Year at the Women in Business Law EMEA Awards 2025. The awards celebrate “the most outstanding women legal practitioners across a broad swathe of corporate finance, corporate/commercial, IP, tax, and disputes practice areas.”

Our firm was recognized as the “U.S. firm that has been most successful in providing a platform for leading female business lawyers in Europe.” The award was presented at a ceremony held in London on June 25.

Gibson Dunn was honored with multiple awards at the 2025 California Legal Awards, including Attorney of the Year for partner Theane Evangelis, and as winner of the Innovation in Diversity and Inclusion award. Partners Ashlie Beringer and Cassandra Gaedt-Sheckter were named Women Leaders in Tech Law.

Theane was recognized for her landmark victory at the U.S. Supreme Court in Johnson v. City of Grants Pass, Oregon. Theane dedicated the award to our late partner and former U.S. Solicitor General Ted Olson, whom she described as a friend, partner, and mentor — and a “California lawyer for the ages.” She also reflected on her nearly 20 years at the firm: “We believe not only in fighting for our clients and winning, but in promoting the greater good.”

Our firm was also a finalist for the Tech Industry Litigation Department of the Year award.

Partner Theane Evangelis, Co-Chair of our firm’s global Litigation Practice Group, has been named Attorney of the Year at this year’s California Legal Awards, presented by Law.com and The Recorder.

The prestigious award honors a California lawyer who has made a mark on the profession, and in the law, with an achievement in the past year that goes beyond service to the client.

Theane was recognized for her landmark victory at the U.S. Supreme Court in Johnson v. City of Grants Pass, Oregon. Representing the City of Grants Pass, she prevailed in what has been widely described as the most consequential case impacting homelessness policy in 40 years. As a result of the decision, municipalities across the U.S. are once again able to address homelessness with a wide range of policy tools, including regulation of public camping that can encourage people to accept much-needed services.

The Grants Pass decision marked the culmination of a years-long effort during which Theane designed and executed the Grants Pass legal strategy, spearheaded a media campaign to tell the City’s story, and led a broad-based effort to recruit amici. Her extraordinary bipartisan coalition of amici — which included 24 states, thousands of cities and counties across the country, the U.S. Chamber of Commerce, law professors, and the Retail Litigation Center — was cited more than 60 times in the Court’s majority opinion.

Theane dedicated the award to our late partner and former U.S. Solicitor General Ted Olson, whom she described as a friend, partner, and mentor — and a “California lawyer for the ages.” She also reflected on her nearly 20-year career at our firm: “We believe not only in fighting for our clients and winning, but in promoting the greater good. We believe that lawyers have a unique role in our society, an opportunity and a duty to enhance access to justice, to promote the rule of law, and to offer critical legal assistance to the most vulnerable members of society. I am so proud to be part of that mission.”

This year’s California Legal Awards also honored Gibson Dunn partners Ashlie Beringer and Cassandra Gaedt-Sheckter as Women Leaders in Tech Law, and our firm was named winner of the Innovation in Diversity and Inclusion award. In addition, Gibson Dunn was a finalist for the Tech Industry Litigation Department of the Year award.

Partner Hagen Rooke has told the Financial Times (subscription required) that the Monetary Authority of Singapore’s (MAS) new regulations requiring local crypto firms serving overseas markets to cease operations represent a move to “clean up shop” and “plug gaps in its framework.”

Hagen said that the MAS is “de facto shutting down the industry that was operating on the fringes of the existing framework.”

This update provides a summary of the key features of the regime as currently set out in the Draft Regulations.

The Dubai International Financial Centre Authority (DIFCA) has published a draft of the Variable Capital Company Regulations (the Draft Regulations) for public consultation, proposing a novel corporate structure aimed at enhancing the DIFC’s attractiveness as a jurisdiction for structuring investment platforms, including for family offices, asset holding, and private investment purposes.

The new regime introduces the Variable Capital Company (VCC), which offers a flexible framework for segregating assets and liabilities through the creation of “Cells” within a single legal entity.

The consultation process remains ongoing, and the final form of the regulations may change depending on feedback received. This update provides a summary of the key features of the regime as currently set out in the Draft Regulations.

Background and Context

The DIFC currently offers a limited cell regime under its existing Protected Cell Company framework, which is available only to certain types of investment companies. However, this framework does not include features such as segregated cells (described below). The proposed VCC regime introduces a more versatile and commercially attractive vehicle, offering structuring options that go beyond what is currently available under the DIFC’s existing framework.

Similar vehicles are available in only a few other jurisdictions, such as Singapore and Mauritius, which have implemented their own VCC regimes in recent years. By introducing a comparable structure, the DIFC aims to enhance its competitiveness and appeal to global investors, family offices, and asset managers seeking flexible and cost-effective structuring options.

Overview of the VCC Structure

A VCC is a private company that may be established in the DIFC either with one or more Segregated Cells or Incorporated Cells (each, a Cell) but not both, which may hold assets and liabilities separately from those of the VCC and other Cells. A VCC may have any number of Segregated Cells or Incorporated Cells, or none, in each case as provided for in its Articles of Association. This allows for ring-fencing of liabilities and targeted investment structuring.

Notably:

A Segregated Cell does not have separate legal personality but is treated as segregated for asset and liability purposes.
An Incorporated Cell is itself a private company with separate legal personality but cannot own shares in other Cells or the VCC.

The VCC structure is modelled to appeal to family offices, private funds, and other investment vehicles seeking to consolidate multiple investments within a single corporate structure, while maintaining legal separation between them.

Qualifying Criteria

Applicants must satisfy one of the following conditions:

The VCC will be controlled by GCC Persons, Registered Persons or Authorised Firms; or
It is established, or continued in the DIFC for purposes of holding legal title to, or controlling, one or more GCC Registrable Assets;
It is established for a Qualifying Purpose, defined to include Aviation Structures (persons having the sole purpose of facilitating the owning, financing, securing, leasing or operating an interest in aircrafts), Crowdfunding Structures (persons established for the purpose of holding the asset(s) invested through a crowdfunding platform), Intellectual Property Structures (persons established for the sole purpose of holding intellectual property for commercial purposes), Maritime Structures (persons having the sole purpose of facilitating the owning, financing, securing, chartering, managing or operating of an interest in maritime vessels or maritime units), Structured Financing (persons having the sole purpose of holding assets to leverage and/or manage risk in financial transactions), or Secondaries Structures (vehicles facilitating the transfer of investment assets to secondary investors); or
It is established or continued in the DIFC has a Director that is an Employee of a Corporate Service Provider and that Corporate Service Provider has an arrangement with the DIFC Registrar pursuant to the relevant provisions in the Draft Regulations.

Key Features

1. Regulatory Oversight

VCCs are subject to the DIFC Companies Law and other Relevant Laws, unless otherwise provided.
The DFSA must authorise any VCC providing financial services.
The license of the VCC established for a Qualifying Purpose shall be restricted to the activities specific to the Qualifying Purpose stated in its application to incorporate or continue in the VCC in the DIFC, or any other permitted purpose shall be restricted to the activity of Holding Company. A VCC shall not be permitted to employ any employees.

2. Share Capital and Distributions

VCCs may issue and redeem shares based on the net asset of the company or individual Cells.
Cellular distributions must relate solely to the assets and liabilities of the relevant Cell, and must not impact other Cells or the VCC’s general assets.

3. Asset Segregation and Liability Protection

Officers may incur personal liability if they breach their duties regarding segregation and disclosure of cell identity in transactions.
The regulations include detailed provisions governing the consequences of unlawful inter-Cell transfers and creditor protections.
Each transaction with third parties must clearly specify the relevant Cell and limit recourse accordingly.

4. Conversions, Mergers, and Transfers

The framework allows for:

Conversion of existing DIFC companies into VCCs and vice-versa;
Transfer of incorporated cells between VCCs, subject to Registrar approval and creditor protection mechanisms;
Merger or consolidation of Segregated Cells, with prior written notice and creditor opt-out rights.

5. Licensing and Naming

VCCs must end their names with “VCC Limited” or “VCC Ltd.”
Segregated Cells and Incorporated Cells must have unique identifiers (e.g., “VCC SC” or “VCC IC”).
Licences are limited to the specific activities of the Qualifying Purpose, though VCCs controlled by Qualifying Applicants may be licensed for broader purposes.

6. Shareholder Transparency and AML Compliance

VCCs must maintain separate registers of shareholders for each Cell.
Ultimate beneficial ownership disclosure obligations apply in line with DIFC UBO Regulations.

7. Fees and Incorporation Process

The proposed incorporation and licensing fees are aligned with the DIFC’s broader cost-efficient regime:

USD 100 for incorporation;
USD 1,000 for an annual licence;
USD 300 for lodging a Confirmation Statement.

Key Topics

Some of the key topics included in the consultation paper include questions around:

the scope and breadth of the proposed qualifying-requirements test, including whether proprietary investment access is too wide or too narrow;
appropriateness of allowing both Segregated Cells and Incorporated Cells within a single regime, and the implications of prohibiting a VCC from having both types concurrently; and
adequacy of creditor-protection measures, notice, publication and court-application rights on conversion of a VCC into a standard DIFC company and vice versa.

Practical Implications

The proposed introduction of the VCC regime provides a robust framework for private clients and investment entities to achieve structural and operational flexibility within a regulated DIFC environment. Key advantages include:

Legal segregation of assets/liabilities for risk mitigation.
Simplified investment platform management.
Suitability for private wealth structuring, crowdfunding, and secondary market transactions.

The following Gibson Dunn lawyers prepared this update: Andrew Steele and Omar Morsy.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of the firm’s Mergers & Acquisitions or Private Equity practice groups, or the authors:

Andrew Steele – Abu Dhabi (+971 2 234 2621, asteele@gibsondunn.com)

Omar Morsy – Dubai (+971 4 318 4608, omorsy@gibsondunn.com)

As discussed below, the Conference concluded with a political declaration in which more than 170 States have called for urgent action to protect the ocean.

The 2025 UN Ocean Conference (UNOC3) took place in Nice, France, between 9 and 13 June, bringing together over 15,000 participants, including more than 60 Heads of State and Government,[1] and generating considerable publicity. The overarching theme of UNOC3—the third conference of its kind—was “[a]ccelerating action and mobilizing all actors to conserve and sustainably use the ocean”, supporting the delivery of the UN’s Sustainable Development Goal 14 (SDG 14).[2] SDG 14, “Life below water”, comprises 10 global targets focused on the conservation and sustainable use of the ocean, seas and marine resources for sustainable development.[3]

As detailed in this alert, UNOC3 concluded with a political declaration in which more than 170 States have called for urgent action to protect the ocean—including the expansion of marine protected areas (MPAs) and the decarbonization of maritime transport.[4] Other key developments included progress towards the entry into force of the “Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction” (BBNJ Agreement), as several State Parties ratified the BBNJ Agreement during UNOC3. States also committed to progress negotiations (which began in 2022) of an internationally binding global plastics treaty, as well as joined calls for an outright ban, moratorium or precautionary pause on deep-sea mining.

Several of the international law matters discussed in this alert may impact global commerce and trade. If you would like to learn more about these developments—i.e., how they may relate to doing business and how to prepare—please contact Charline Yim and Stephanie Collins.

1. Background

The UN Ocean Conferences were established to advance SDG 14—part of the UN’s 2030 Agenda for Sustainable Development—as well as to enhance the implementation of international law as reflected in the UN Convention on the Law of the Sea (UNCLOS). The UN Ocean Conferences bring together governments, civil society, the scientific community, and the private sector—similar to the annual Conference of the Parties (COP) in the climate change context, which are held pursuant to the United Nations Framework Convention on Climate Change (UNFCCC). Previous Ocean Conferences have taken place in 2017 (New York) and 2022 (Lisbon).

UNOC3 had three main priorities: (i) work towards the successful completion of ocean-related multilateral processes to raise the level of ambition for ocean protection; (ii) mobilize funding for SDG 14 and support the development of a blue economy; and (iii) strengthen and better disseminate marine science knowledge for better policymaking.

Notably, one week prior to UNOC3, the European Commission (Commission) published the “European Ocean Pact” (Ocean Pact),[5] which was presented at the UNOC3 by Commission President Ursula von der Leyen. The Ocean Pact brings together the EU’s policies and actions related to the ocean and creates a coordinated plan for ocean management. It is built around six priorities: (i) protecting and restoring ocean health; (ii) boosting the competitiveness of the EU sustainable blue economy; (iii) supporting coastal and island communities, and outermost regions; (iv) advancing ocean research, knowledge, skills and innovation; (v) enhancing maritime security and defence; and (vi) strengthening EU ocean diplomacy and international ocean governance.

To achieve the Ocean Pact’s targets, by 2027, the Commission expects to present the “Ocean Act”, building on a revised Maritime Spatial Planning Directive. According to the Commission, the Ocean Act will establish a single framework to facilitate the implementation of the Ocean Pact’s key objectives. To aid implementation, the Commission will also set up a high-level Ocean Board, bringing together representatives from various ocean-related sectors.

2. Nice Ocean Action Plan

UNOC3 culminated in a political declaration, titled “Our ocean, our future: united for urgent action” (Nice Ocean Action Plan or Declaration).[6] Describing the importance of conserving the ocean and its ecosystems, the Declaration recalled the 2024 advisory opinion of the International Tribunal for the Law of the Sea on the request for an advisory opinion submitted by the Commission of Small Island States on Climate Change and International Law (previously reported on here). The tribunal concluded in that advisory opinion that anthropogenic greenhouse gas emissions constitute “pollution of the marine environment” as defined under UNCLOS, triggering certain positive obligations on States under UNCLOS. The Declaration also refers to the UNFCCC and the temperature goals of the Paris Agreement,[7] as well as to the importance of implementing the Convention on Biological Diversity and its Protocols, amongst other international agreements.

Amongst other issues, under the Declaration, States commit to the expansion of MPAs. The Declaration also reiterates the importance of increasing scientific knowledge on deep-sea ecosystems and recognises the work of the International Seabed Authority, created under UNCLOS, to progress rules and regulations in relation to deep-sea mining activities in the “Area” (i.e., the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction).

In addition, the Declaration calls for decisive action to ensure sustainable fisheries—and encourages member states of the World Trade Organization to deposit instruments of acceptance of the Agreement on Fisheries Subsidies 2022, which was designed to curb subsidies contributing to overfishing.

The Declaration also addresses the role of the private sector, referring to the importance of attracting investment to support a sustainable ocean-based economy, including through blue bonds and blue loans. The Declaration encourages the active and meaningful involvement of banks, insurers, and investors.

The Declaration further sets out over 800 voluntary commitments by governments, scientists, UN agencies, and civil society,[8] including the Commission’s announcement of an EUR 1 billion investment to support ocean conservation, science, and sustainable fishing.[9]

3. BBNJ Agreement

One of the principal objectives of UNOC3 was to accelerate progress of the entry into force of the BBNJ Agreement.[10] The BBNJ Agreement was adopted in 2023, with the aim of ensuring the conservation and sustainable use of marine biological diversity of areas “beyond national jurisdiction”, for the present and in the long term, through effective implementation of the relevant provisions of UNCLOS, as well as international cooperation and coordination.[11] It includes provisions addressing marine genetic resources and the fair and equitable sharing of benefits, and measures such as area-based management tools (including MPAs). It also includes an obligation to conduct Environmental Impact Assessments for planned activities before they are authorised, in areas beyond national jurisdiction.

60 States must ratify the BBNJ Agreement for it to enter into force. Over the course of UNOC3, 19 additional States ratified the BBNJ Agreement, bringing the total number to 50 as at Friday, 13 June 2025.[12]

4. Global Plastics Treaty

At UNOC3, there was also progress on the negotiation of a global plastics treaty (which we have previously reported on here). By way of context, the negotiation process for the treaty was launched in 2022, at the request of the UN Environment Assembly, which called for urgent action to end plastic pollution globally. Since then, several negotiation rounds have taken place—with the most recent round in South Korea in December 2024, concluding without a final agreement. The draft treaty[13] includes measures that would target the entire life cycle of plastic—from upstream production to downstream waste—and includes both mandatory and voluntary provisions. Private actors have contributed to the negotiation process.

At UNOC3, representatives from over 95 States[14] signed a declaration reaffirming their common ambition to end plastic pollution. Titled the “Nice call for an ambitious treaty on plastics”, the declaration is structured around five points which the signatories consider “key to reach an agreement”: (i) adoption of a global target to reduce production and consumption of primary plastic polymers; (ii) establishment of a legally binding obligation to phase-out the most problematic plastic products and chemicals of concern, by supporting the development of a global list of these products and substances; (iii) improvement, through a binding obligation, of the design of plastic products and ensure they cause minimal impact to the environment and human health; (iv) inclusion of a financial mechanism that supports its effective implementation; and (v) commitment to an effective and ambitious treaty that can evolve over time.[15]

Commitment towards the achievement of an international legally binding instrument on plastic pollution is also referenced in the Nice Ocean Action Plan, discussed in Section ‎2 above.[16]

The next round of negotiations for a global plastics treaty will take place in Geneva in August 2025.

5. Deep-Sea Mining

Deep-sea mining was another focus of UNOC3. In addition to the commitments in the Declaration, a number of States at UNOC3 joined calls for an outright ban, moratorium or precautionary pause on deep-sea mining during, bringing the total to 37. The States include Canada, France, Germany, Mexico, Spain and the United Kingdom.[17] In parallel, a number of major financial institutions announced that they would not fund deep-sea mining projects.[18]

This development comes just six weeks after President Trump issued an executive order granting concessions for seabed mining titled “Unleashing America’s Offshore Critical Minerals and Resources”.[19] The executive order states that the US has a “core national security and economic interest” in developing and extracting mineral resources.[20] The US sent non-participating observers to UNOC3 from the President’s Environmental Advisory Task Force.[21]

6. Observations

UNOC3 addressed a wide range of ocean-related issues, including the sustainable blue economy, the environment, climate change, social development and the use of ocean resources. The discussions and resolutions at UNOC3, as reported on above, may evolve into binding international instruments on ocean governance and management in the near future. Further, UNOC3 generated a significant degree of international media attention, which may signal the start of a more high-profile positioning of ocean-related issues on the international political stage. We will continue to monitor and report on developments in this space.

[1] See ‘UN Ocean Summit in Nice closes with wave of commitments’, United Nations News, 13 June 2025, <https://news.un.org/en/story/2025/06/1164381>, last accessed 24 June 2025.

[2] i.e., to “conserve and sustainably use the oceans, seas and marine resources for sustainable development”. See ‘2025 UN Ocean Conference’, United Nations, 9 June 2025, <https://sdgs.un.org/conferences/ocean2025>, last accessed 24 June 2025.

[3] See ‘Life Below Water’, The Global Goals, undated, <https://www.globalgoals.org/goals/14-life-below-water/>, last accessed 24 June 2025.

[4] See ‘UN Ocean Summit in Nice closes with wave of commitments’, United Nations News, 13 June 2025, <https://news.un.org/en/story/2025/06/1164381>, last accessed 24 June 2025.

[5] See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Ocean Pact, COM(2025) 281 final, 5 June 2025, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=COM:2025:281:FIN, last accessed 24 June 2025.

[6] ‘Our ocean, our future: united for urgent action’, United Nations Ocean Conference 2025 Resolution, 13 June 2025, <https://docs.un.org/en/A/CONF.230/2025/L.1> last accessed 24 June 2025; ‘Nice Conference Adopts Declaration Underscoring Vital Importance of Ocean to Life on Our Planet, Essential Role in Mitigating Climate Change’, United Nations, 13 June 2025, here, last accessed 24 June 2025.

[7] Namely, to limit the temperature increase to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius. See ‘United Nations Framework Convention on Climate Change’, United Nations, Treaty Series, vol. 1771, No. 30822, 9 May 1992, <https://treaties.un.org/doc/publication/unts/volume%202303/volume-2303-a-30822.pdf> last accessed 24 June 2025; see also ‘Report of the Conference of the Parties on its twenty-first session’, Paris Agreement, Article 2, p. 22 <https://docs.un.org/en/FCCC/CP/2015/10/Add.1>, last accessed 24 June 2025.

[8] See ‘UN Ocean Summit in Nice closes with wave of commitments’, United Nations News, 13 June 2025, <https://news.un.org/en/story/2025/06/1164381>, last accessed 24 June 2025.

[9] See ‘Commission adopts Ocean Pact with €1 billion to protect marine life and strengthen blue economy’, European Commission, 11 June 2025, https://commission.europa.eu/news-and-media/news/commission-adopts-ocean-pact-eu1-billion-protect-marine-life-and-strengthen-blue-economy-2025-06-11_en, last accessed 24 June 2025.

[10]See ‘UN Ocean Summit in Nice closes with wave of commitments’, United Nations News, 13 June 2025, <https://news.un.org/en/story/2025/06/1164381>, last accessed 24 June 2025; see also ‘Beyond borders: Why new ‘high seas’ treaty is critical for the world’, United Nations News, 19 June 2023, <https://news.un.org/en/story/2023/06/1137857>, last accessed 24 June 2025.

[11] See ‘Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction’, United Nations, 2023, <https://www.un.org/bbnjagreement/sites/default/files/2024-08/Text%20of%20the%20Agreement%20in%20English.pdf>, last accessed 24 June 2025.

[12] See ‘UN Ocean Summit in Nice closes with wave of commitments’, United Nations News, 13 June 2025, <https://news.un.org/en/story/2025/06/1164381>, last accessed 24 June 2025.

[13] See ‘Revised draft text of the international legally binding instrument on plastic pollution, including in the marine environment’, United Nations, 28 December 2023, <https://wedocs.unep.org/bitstream/handle/20.500.11822/44526/RevisedZeroDraftText.pdf>, last accessed 24 June 2025.

[14] Antigua and Barbuda, Armenia, Australia, Barbados, Benin, Burundi, Cabo Verde, Cambodia, Canada, Chile, Colombia, Comoros, Congo, Cook Islands, Costa Rica, Côte d’Ivoire, Democratic Republic of the Congo, Djibouti, Dominican Republic, Ecuador, Eswatini, European Union whose Member States are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden; Fiji, Gabon, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Guinea-Bissau, Honduras, Iceland, Israel, Jamaica, Liberia, Madagascar, Malawi, Maldives, Marshall Islands, Mauritania, Mauritius, Mexico, Micronesia, Monaco, Mozambique, Namibia, New Zealand, Norway, Panama, Papua New Guinea, Peru, Philippines, Republic of Moldova, Saint Kitts and Nevis, São Tomé and Principe, Senegal, Seychelles, Sierra Leone, Solomon Islands, Sri Lanka, Switzerland, Togo, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu, Zimbabwe.

[15] See ‘The Nice wake up call for an ambitious plastics treaty’, United Nations Ocean Conference, 10 June 2025, here, last accessed 24 June 2025.

[16] See ‘Our ocean, our future: united for urgent action’, United Nations Ocean Conference 2025 Resolution, 13 June 2025, <https://docs.un.org/en/A/CONF.230/2025/L.1> last accessed 24 June 2025, p. 4.

[17] See ‘UN Ocean Conference Shines a Light on the Deep Sea: Now, Time for Action’, Deep Sea Conservation Coalition, 13 June 2025, <https://deep-sea-conservation.org/un-ocean-conference-shines-a-light-on-the-deep-sea-now-time-for-action/>, last accessed 24 June 2025.

[18] BNP Paribas, Crédit Agricole and Groupe Caisse des Dépôts announced their rejection of deep sea mining, which now means that 24 financial institutions exclude deep sea mining in some form. See ‘Three Major French Investors Reject Deep Sea Mining’, Deep Sea Mining Campaign, 17 June 2025, <https://dsm-campaign.org/french-investors-reject-dsm/> , last accessed 24 June 2025.

[19] ‘Unleashing America’s Offshore Critical Minerals and Resources’, The White House, 24 April 2025, <https://www.whitehouse.gov/presidential-actions/2025/04/unleashing-americas-offshore-critical-minerals-and-resources/>, last accessed 24 June 2025.

[20] ‘Unleashing America’s Offshore Critical Minerals and Resources’, The White House, 24 April 2025, <https://www.whitehouse.gov/presidential-actions/2025/04/unleashing-americas-offshore-critical-minerals-and-resources/>, last accessed 24 June 2025.

[21] See ‘US Skips UN Ocean Conference after rejecting Development Goals’, Bloomberg, June 2025, here, last accessed 24 June 2025.

The following Gibson Dunn lawyers prepared this update: Charline Yim and Stephanie Collins.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any leader or member of the firm’s Geopolitical Strategy & International Law and ESG: Risk, Litigation, & Reporting practice groups:

Charline O. Yim – New York (+1 212.351.2316, cyim@gibsondunn.com)

Stephanie Collins – London (+44 20 7071 4216, scollins@gibsondunn.com)

Robert Spano – Co-Chair, ESG and Geopolitical Strategy & International Law Groups,
London/Paris (+33 1 56 43 13 00, rspano@gibsondunn.com)

Rahim Moloo – Co-Chair, Geopolitical Strategy & International Law Group,
New York (+1 212.351.2413, rmoloo@gibsondunn.com)

Patrick W. Pearsall – Co-Chair, Geopolitical Strategy & International Law Group,
Washington, D.C. (+1 202.955.8516, ppearsall@gibsondunn.com)

Partners Michele Maryott and Brian Rosenthal have been honored with Bloomberg Law’s debut Unrivaled award spotlighting “exceptional trial lawyers who are setting the standard for high-stakes litigation and impactful settlements.”

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Gibson Dunn is advising Faropoint, a tech-enabled, vertically integrated real estate investment manager specializing in U.S. urban logistics, on its flagship Industrial Value Fund IV, targeting $1 billion in capital commitments.

Our investment funds team is led by partners Roger Singer and Kate Timmerman and includes associates Eimi Harris and Bethany Wang. Partner Daniel Zygielbaum, of counsel Kate Long, and associate Emily Leduc Gagné are advising on tax aspects. Of counsel Gregory Merz is advising on regulatory aspects.

Join us for a 40-minute briefing covering several M&A practice topics. This program is part of a series of quarterly webcasts designed to provide quick insights into emerging issues and practical advice on how to manage common M&A problems. Partner Rob Little, global Co-Chair of the firm’s M&A Practice Group, will act as moderator.

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PANELISTS:

Christopher T. Timura is a partner in the Washington D.C. office of Gibson, Dunn & Crutcher LLP and a member of the firm’s International Trade, White Collar Defense and Investigations, and ESG Practice Groups. Chris helps clients solve problems that arise at the intersection of U.S. national security, foreign policy, and international trade regulation. His clients span sectors and range from start-ups to Global 500 companies. He is regularly ranked in Chambers Global and U.S.A. guides for his work and is a regular speaker and writer on the policy drivers, trends, and impacts of evolving international trade policy and regulation.

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Robert B. Little is a partner in Gibson, Dunn & Crutcher’s Dallas office. He is a Global Co-Chair of the Mergers and Acquisitions Practice Group and a member of the firm’s Executive Committee. Rob is consistently recognized for his leadership and strategic work with clients, having been named among the nation’s top M&A lawyers by Chambers USA every year for more than a decade. Rob’s practice focuses on corporate transactions, including mergers and acquisitions, securities offerings, joint ventures, investments in public and private entities, and commercial transactions. He also advises business organizations regarding matters such as securities law disclosure, corporate governance, and fiduciary obligations. In addition, he represents investment funds and their sponsors along with investors in such funds. Rob has represented clients in a variety of industries, including energy, retail, technology, infrastructure, transportation, manufacturing, and financial services.

Gibson Dunn has been recognized in the 2025 edition of the Chambers and Partners Litigation Support guide, which features detailed coverage of litigation support services in the U.S., U.K., Europe, the Middle East, Asia-Pacific, and Latin America.

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