We are pleased to provide you with the May edition of Gibson Dunn’s monthly U.S. bank regulatory update. Please feel free to reach out to us to discuss any of the below topics further.

KEY TAKEAWAYS

  • The GENIUS Act, establishing a statutory framework for payment stablecoins, moved closer to a full Senate vote after Democrats announced a number of amendments.
  • Acting on priorities outlined by Acting Chairman Travis Hill in his January 2025 statement, the Federal Deposit Insurance Corporation (FDIC) rescinded its 2024 Statement of Policy on Bank Merger Transactions and reinstated the prior Statement of Policy on Bank Merger Transactions. The FDIC again indicated it plans to conduct a broader reevaluation of its bank merger review process.
  • In similar fashion, the Office of the Comptroller of the Currency (OCC) adopted an interim final rule to restore the streamlined application and expedited review to its procedures for reviewing applications under the Bank Merger Act (BMA) and rescinded its 2024 policy statement on its review of applications under the BMA. The Senate and House passed a joint Congressional Review Act (CRA) resolution nullifying the OCC’s 2024 final rule. The CRA resolution has not been signed into law.
  • The OCC continued to revamp its approach to digital assets, clarifying that national banks and federal savings associations may buy and sell assets held in custody on a customer’s behalf at the direction of the customer and are permitted to outsource to third parties bank-permissible crypto-asset activities, including custody and execution services, subject to appropriate third-party risk management practices.
  • The Consumer Financial Protection Bureau (CFPB) withdrew 67 guidance documents, including interpretive rules, policy statements, advisory opinions and compliance bulletins. The withdrawals are applicable as of May 12, 2025. The CRA resolutions to repeal the CFPB overdraft rule and larger participant rule for digital payment companies were signed into law. The CFPB also rescinded its May 2022 interpretive rule regarding the scope of state enforcement under Section 1042 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
  • The CFPB also noted that it plans to vacate its Section 1033 open banking rule in a status report filed in the U.S. District Court for the Eastern District of Kentucky, stating “[a]fter reviewing the Rule and considering the issues that this case presents, Bureau leadership has determined that the Rule is unlawful and should be set aside.” The CFPB indicated it intends to file a motion for a summary judgment in the case by May 30, 2025.
  • The federal financial services regulatory agencies’ leadership teams continue to evolve.
    • In an unsigned opinion, the Supreme Court signaled that members of the Federal Reserve Board and other members of the Federal Open Market Committee cannot be terminated by the President without cause, by virtue of for-cause removal protections. In its opinion, the Court explained that the “Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” distinguishing it from other independent agencies.
    • The Senate Banking Committee advanced out of committee the nomination of Michelle Bowman to be the Federal Reserve Board’s Vice Chair for Supervision. Jonathan Gould’s nomination to be the next Comptroller of the Currency previously advanced out of committee. Each awaits Senate confirmation.
    • Secretary of the Treasury Scott Bessent announced President Trump’s intent to nominate Jonathan McKernan to serve as Undersecretary of Domestic Finance at the U.S. Department of the Treasury. McKernan’s nomination to serve as Director of the CFPB was withdrawn.
    • The Acting Chair of the Commodity Futures Trading Commission (CFTC) Caroline Pham announced her departure once Brian Quintenz is confirmed as Chairman. CFTC Commissioners Summer Mersinger and Christy Goldsmith Romero announced they will step down at the end of May 2025 and Commissioner Kristin Johnson announced she will step down “later this year.”
    • Vacancies remain on the boards of the FDIC and National Credit Union Administration.

DEEPER DIVES

FDIC and OCC Rescind Biden Administration Changes to Agency Review of Bank Merger Transactions. On May 8, 2025, the OCC adopted an interim final rule to restore the streamlined application and expedited review to its procedures for reviewing applications under the BMA and rescinded its 2024 policy statement on its review of applications under the BMA. (On May 7 and May 20, 2025, the Senate and House, respectively, passed a joint Congressional Review Act resolution nullifying the OCC’s 2024 final rule.) On May 20, 2025, the FDIC rescinded its 2024 Statement of Policy on Bank Merger Transactions and reinstated the prior Statement of Policy on Bank Merger Transactions, effective 30 days after publication in the Federal Register.

  • Insights. Although the changes mitigate or eliminate some of the issues created by the September 2024 changes to the agencies’ evaluations of merger transactions, more remains to be done to establish a process that maximizes predictability, efficiency and transparency for institutions of all sizes regardless of federal regulator. In that connection, the FDIC again indicated it plans to conduct a broader reevaluation of its bank merger review process.As in September 2024, the FDIC and OCC moves on changes to the agencies’ approach to evaluating transactions subject to approval under the BMA appear coordinated. Absent, though, was any coordinated action by the U.S. Department of Justice (DOJ). In September 2024, the DOJ announced the 2023 Merger Guidelines will be the “sole and authoritative statement across all industries.” The DOJ move expanded bank merger analysis beyond the traditional—and more predictable—assessment of local branch overlaps and HHI screens, into a “comprehensive and flexible framework,” considering issues such as the impact at the branch level with respect to individual lines of business, particular customer segments, or the quality/nature of customer service, and across broader geographic regions. At this time, it is unclear whether the 2023 Merger Guidelines will remain the “sole and authoritative statement across all industries,” though the 2023 Merger Guidelines do contain a HHI threshold (1,800/100) and a market share threshold (30% plus change in HHI of 100) for establishing a rebuttable presumption of anticompetitive harm.

OCC Clarifies Bank Authority to Engage in Certain Crypto-Related Activities. On May 7, 2025, the OCC published Interpretive Letter No. 1184 clarifying that national banks and federal savings associations may buy and sell assets held in custody on a customer’s behalf at the direction of the customer and are permitted to outsource to third parties bank-permissible crypto-asset activities, including custody and execution services, subject to appropriate third-party risk management practices.

  • Insights. Since the change in administration, the federal banking agencies have continued to signal increased receptivity to crypto-related activities and digital assets in the industry on behalf of clients, in all cases subject to the requirement that all activities be conducted in a safe and sound manner, consistent with all applicable laws and regulations. In practice, banks are still expected to engage with the Federal Reserve, FDIC and OCC regarding proposed crypto-related activities—as noted by the FDIC in FIL-7-2025, banks “should consider the associated risks … and should engage with their supervisory team as appropriate.”As we have previously discussed, crypto-related activities and product offerings may present thorny legal authority/permissibility issues under law or raise safety and soundness concerns, all of which must continue to be evaluated by institutions. Aside from buying, selling and issuing stablecoins to facilitate payments (OCC Interpretive Letter No. 1174), limitations remain on banks’ authority to engage in crypto-related activities as principal. Further, as noted by Acting Chairman Hill in his April 8, 2025 update on key policy issues, “one specific area that merits attention is the use of public, permissionless blockchains by banks.” The Federal Reserve’s Policy Statement on Section 9(13) of the Federal Reserve Act notes in the preamble to the final rule that the Federal Reserve “generally believes that issuing tokens on open, public, and/or decentralized networks, or similar systems is highly likely to be inconsistent with safe and sound banking practices.”
Agency Actions
FDIC Confirmed that FDIC-supervised institutions (i) may engage in “permissible crypto-related activities”* without receiving prior FDIC approval and (ii) “should consider the associated risks … and should engage with their supervisory team as appropriate.”Withdrew from the “Joint Statement on Crypto-Asset Risks to Banking Organizations” (Jan. 3, 2023) and the “Joint Statement on Liquidity Risks to Banking Organizations Resulting from Crypto-Asset Market Vulnerabilities” (Feb. 23, 2023) (together, the Joint Statements).

* Although the FDIC broadly defines “permissible crypto-related activities” to include: acting as crypto-asset custodians; maintaining stablecoin reserves; issuing crypto and other digital assets; acting as market makers or exchange or redemption agents; participating in blockchain- and distributed ledger-based settlement or payment systems, including performing node functions; as well as related activities such as finder activities and lending, the footnote explaining “permissible” in FIL-7-2025 cites only to the OCC Interpretive Letters described below as examples of “permissible” activities.
Federal Reserve Confirmed that (i) state member banks may engage in permissible crypto-asset activities without providing advance notification and (ii) the Federal Reserve will monitor banks’ crypto-asset activities through the “normal supervisory process.”Withdrew from the Joint Statements.

Policy Statement on Section 9(13) of the Federal Reserve Act remains effective (describing limitations on state member banks’ authority to engage in crypto-related activities as principal).
OCC Rescinded the requirement that OCC-supervised institutions receive supervisory nonobjection before they can engage in activities described in OCC Interpretive Letters Nos. 1170, 1172, and 1174 (crypto-asset activities) and confirmed those crypto-asset activities will be examined as part of the OCC’s “ongoing supervisory process.”Published Interpretive Letter No. 1183 to confirm the following are permissible for national banks and federal savings associations:

Published Interpretive Letter No. 1184 (see above).

Withdrew from the Joint Statements.

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CFPB Continues Deregulatory Push. On May 12, 2025, the CFPB withdrew 67 guidance documents, including interpretive rules, policy statements, advisory opinions and compliance bulletins. The withdrawals are effective as of May 12, 2025. On May 15, 2025, the CFPB rescinded its May 2022 interpretive rule regarding the scope of state enforcement under Title X of the Dodd-Frank Act. The newly issued interpretive rule is effective May 15, 2025. Finally, on May 23, 2025, the CFPB notified the U.S. District Court for the Eastern District of Kentucky that it intends to vacate its 1033 open banking rule.

  • Insights. The withdrawals include 8 policy statements, 7 interpretive rules, 13 advisory opinions and 39 other pieces of guidance across a range of topics. The withdrawals are consistent with actions taken to date to narrow the CFPB’s mandate, as is the decision to vacate the 1033 open banking rule. The actions, though, have the potential to create a whipsaw effect for legal and compliance functions should future administrations re-empower the CFPB in any of these areas. Further, it is unclear whether the current administration will propose a new Section 1033 open banking rule or if the administration intends to implement one at all.

House Financial Services Committee Remains Active. On May 21, 2025, the U.S. House Financial Services Committee announced it had advanced out of committee 25 bills, many of which are designed to reshape bank regulation and supervision.

  • Insights. Although enactment of any of these bills into law is not guaranteed, certain themes emerge from a review of certain bills that are worth highlighting as continued areas of focus by the House Financial Services Committee, Senate Banking Committee, regulators and other stakeholders.
Bill (Topic) Aim Other Commentary
Bank Failure Prevention Act (timely BMA application decisions) Establishes “shot clock” for federal regulators to act on BMA applications Bowman (here); Acting FDIC Chairman Hill (here); Chairman French Hill (R-AR) (here)
Taking Account of Institutions with Low Operation Risk (TAILOR) Act (regulatory tailoring)** introduced in Senate as well Requires federal financial regulatory agencies to tailor federal regulation based on banks’ specific risk profiles and business models Bowman (here; here; here); Hill (here); Chairman French Hill (here)
Financial Institution Regulatory Tailoring Enhancement Act (regulatory tailoring) Increases from $10 billion to $50 billion the asset thresholds at which financial institutions become subject to certain requirements (e.g., Volcker, Durbin amendment, CFPB supervision) Bowman (here; here; here); Hill (here); Acting Comptroller Hood (here); Chairman French Hill (here)
Fair Audits and Inspections for Regulators’ (FAIR) Exams Act (supervisory findings appeals process) Establishes new appeals processes for financial institution supervisory determinations Hill (here); Chairman French Hill (here; here; here)
Halting Uncertain Methods and Practices in Supervision (HUMPS) Act (CAMELS ratings) Requires the regulatory agencies to update the CAMELS rating system, particularly the “Management” component Bowman (here); Hill (here); Chairman French Hill (here)
FIRM Act (debanking)** introduced in Senate as well Limits use of reputational risk in examination reports Hill (here); Chairman French (here; here); Jonathan Gould Gould (nominee) (here)

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OTHER NOTABLE ITEMS

Speech by Vice Chair Jefferson on Liquidity Facilities. On May 19, 2025, Federal Reserve Board Vice Chair Jefferson gave a speech titled “Liquidity Facilities: Purposes and Functions.” In his speech, Vice Chair Jefferson noted that the discount window has been used more than was the case before the pandemic.

FDIC Board of Directors Meeting. At the FDIC Board meeting on May 20, 2025, the FDIC Board reviewed the Deposit Insurance Fund Restoration Plan. In his remarks on the plan, Acting Chairman Hill noted that FDIC staff “project that the reserve ratio is likely to reach the statutory minimum of 1.35 percent ahead of the statutory deadline and recommend no changes to the Restoration Plan.” He also offered that the FDIC Board should consider “whether insured deposits is the right metric to measure the [Deposit Insurance Fund’s] exposure to losses,” indicating that FDIC staff, at his request, is analyzing an alternative permitted by the Federal Deposit Insurance Act to use total liabilities rather than insured deposits as the denominator of the reserve ratio.

FDIC Publishes 2025 Risk Review. On May 13, 2025, the FDIC published its 2025 Risk Review providing an overview of market and credit risks to banks in 2024. The risk review identified market risks arising from higher interest rates and an inverted yield curve during much of 2024 as an ongoing key risk to the industry. It noted that on-balance-sheet liquidity levels were “stable” in 2024, deposits increased for the first time since 2021 “as uninsured deposit growth resumed,” and wholesale funding growth slowed with the ratio of wholesale funds to total assets being “within pre-pandemic norms.” The risk review also highlighted asset quality deterioration in certain commercial real estate and consumer loan portfolio as the second key risk to banks in 2024.

Acting Comptroller Hood Discusses OCC Priorities. On May 8, 2025, Acting Comptroller Hood gave remarks at the Building Societies Annual Conference (Birmingham, England). In his remarks, Acting Comptroller Hood continued to highlight his four key areas of strategic focus for the OCC: (1) reducing regulatory burden (“ensur[ing] that regulations are effective and not excessive so that the institutions we supervise can thrive and innovate”); (2) promoting financial inclusion (“financial inclusion is the civil rights issue of our time”); (3) embracing bank-fintech partnerships (“innovation is not optional, but essential”); and (4) expanding responsible bank activities involving digital assets (“the OCC recently reaffirmed that a range of cryptocurrency activities are permissible by the institutions we supervise”).

OCC Publishes Interest Rate Risk Statistics Report. On May 14, 2025, the OCC published the spring 2025 edition of the Interest Rate Risk Statistics Report. The report presents interest rate risk data gathered during examinations of OCC-supervised midsize and community banks and federal savings associations.

OCC Issues RFI on Challenges Faced by Community Banks in Adoption and Implementation of Digital Banking Solutions. On May 5, 2025, the OCC issued a request for information (RFI) seeking input from community banks regarding the challenges and barriers faced in adopting and implementing digitalization strategies and initiatives. The RFI’s focus includes topics such as governance; diligence; third-party risk management; costs; use of AI and machine learning; and data sharing and tech interoperability. Responses to the RFI are due within 45 days of the date of publication in the Federal Register.

OFR Blog on Banks’ Unrealized Losses in Securities Portfolios. On May 15, 2025, the Office of Financial Research published a blog post, “The State of Banks’ Unrealized Securities Losses.” The post found that higher Treasury yields have kept unrealized securities losses at elevated levels, albeit lower than their highest levels reached in the third quarter of 2022. The post estimates that as of December 31, 2024, aggregate unrealized securities losses remained elevated at $481 billion, “approximately an average of 8.6% of the fair value of their aggregate securities holdings and 19.9% of the aggregate equity held at the banking subsidiaries.”

Joint Study Explores Feasibility of Central Bank Operations Using Tokenization and Smart Contracts. The Federal Reserve Bank of New York and the Bank for International Settlements published a joint research study that found that central banks could customize and deploy policy implementation tools using programmable smart contracts in a potential future state where commercial banks and other private sector financial institutions have widely adopted tokenization for wholesale payments and securities settlement.

Speech by Governor Cook on Financial Stability. On May 23, 2025, Federal Reserve Board Governor Lisa Cook gave a speech titled “A View on Financial Stability.” In her speech, Governor Cook focused on overall financial stability and ongoing uncertainty and risks. She highlighted ongoing risk and uncertainty in the system, as well as the importance of better understanding the interaction of banks and nonbanks and how that may impact overall financial stability and market shock absorption.

Speech on Recent Developments in Treasury Market Liquidity and Funding Conditions. In remarks on May 9, 2025, Roberto Perli, manager of the Federal Reserve’s System Open Market Account, discussed recent developments in U.S. Treasury market liquidity. On May 13, 2025, the Federal Reserve Bank of New York’s Teller Window highlighted Perli’s speech.

The following Gibson Dunn lawyers contributed to this issue: Jason Cabral, Ro Spaziani, and Rachel Jackson.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. Please contact the Gibson Dunn lawyer with whom you usually work or any of the member of the Financial Institutions practice group:

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

Ro Spaziani, New York (212.351.6255, rspaziani@gibsondunn.com)

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

M. Kendall Day, Washington, D.C. (202.955.8220, kday@gibsondunn.com)

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

Sara K. Weed, Washington, D.C. (202.955.8507, sweed@gibsondunn.com)

Ella Capone, Washington, D.C. (202.887.3511, ecapone@gibsondunn.com)

Sam Raymond, New York (212.351.2499, sraymond@gibsondunn.com)

Rachel Jackson, New York (212.351.6260, rjackson@gibsondunn.com)

Zack Silvers, Washington, D.C. (202.887.3774, zsilvers@gibsondunn.com)

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

Nathan Marak, Washington, D.C. (202.777.9428, nmarak@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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Gibson Dunn’s Immigration Task Force is available to help clients understand what these and other expected policy changes will mean for them and how to comply with new requirements.

In response to the federal government’s new rules and guidance impacting the immigration system, several legal challenges have been filed against the Trump Administration.  This update outlines the background and status of certain notable lawsuits: (1) challenges to the invocation of the Alien Enemies Act to remove Venezuelan nationals allegedly connected to the gang Tren de Aragua; (2) a challenge to the removal of Kilmar Armando Abrego Garcia, a Salvadoran national who was lawfully present in the United States; (3) a challenge to the termination of the Temporary Protected Status designation for Venezuelans; (4) challenges to the termination of birthright citizenship; (5) a challenge to the termination of categorial parole programs, including for Cubans, Haitians, Nicaraguans, and Venezuelans; (6) a challenge to the Department of Homeland Security rule requiring registration of certain noncitizens; (7) challenges to the revocation of certain student visas; and (8) challenges to the termination of funding for congressionally appropriated programs benefiting immigrants.

  1. Challenges to Removal of Venezuelan Nationals Under the Alien Enemies Act

Underlying Executive Order

On March 14, 2025, President Trump issued an Executive Order invoking the Alien Enemies Act of 1798 (AEA) to require the “immediate apprehension, detention, and removal” of Venezuelan nationals age 14 and older who are members of the Venezuelan gang, Tren de Aragua.[1]  The Executive Order, titled “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua,” states that Tren de Aragua has invaded the United States, “perpetrated irregular warfare,” and used drug trafficking as a weapon against U.S. citizens.[2]

The AEA, enacted in 1798, authorizes the President to “apprehend[], restrain[], secure[], and remove[]” any “alien enemies” only during a declared war or invasion against the United States.[3]  The AEA requires that noncitizens are provided a right of voluntary departure and must be given “reasonable time” to depart “according to the dictates of humanity and national hospitality.”[4]  The AEA has been invoked only three times since its enactment, during the War of 1812, World War I and World War II.[5]  During World War II, the AEA was infamously invoked in the creation of the internment camps for noncitizens from Japan, Germany, Italy, Hungary, Romania and Bulgaria.[6]  Until now, the AEA has not been invoked outside of a declared war.[7]

The government began removing Venezuelan nationals promptly following the publication of the Executive Order, resulting in various legal challenges.  The first lawsuit, J.G.G v. Trump, successfully obtained a nationwide injunction protecting removal for any individual subject to the Executive Order.  As detailed below, however, the Supreme Court overruled that decision on procedural grounds, and plaintiffs seeking to prevent their removal under the Executive Order have since been obligated to file habeas corpus proceedings in the jurisdictions in which they are detained.[8]  As of today’s date, there are at least nine separate habeas petitions pending in various federal districts.

The Initial Case: J.G.G. v. Trump

On March 15, 2025, the American Civil Liberties Union (ACLU), Democracy Forward, and the ACLU of the District of Columbia filed suit in the District of Columbia District Court seeking a temporary restraining order (TRO) against the Executive Order’s enforcement.[9]  The suit was brought on behalf of five detainees who had been informed the day before that they were going to be deported, as well as a potential class consisting of “all noncitizens in U.S. custody subject to the[Executive Order].”  On the day the suit was filed, at 5:00 p.m., Judge James Boasberg held a hearing to consider the plaintiffs’ motions for class certification and a TRO.  When asked whether there were any imminent removals planned, the government represented that they did not know and would “investigate.”[10]  When plaintiffs’ counsel interjected that two removal flights were scheduled to depart during the time of the hearing, Judge Boasberg adjourned the hearing at 5:22 p.m. to allow the government to confirm whether any flights were scheduled to depart.[11]  The hearing resumed at 6:00 p.m., but the government continued to represent that they had no information to share.[12]  Around 6:45 p.m., Judge Boasberg verbally entered a nationwide TRO order to prevent the removal of the any members of the putative class for 14 days, concluding that (1) the AEA does not provide a basis for removal under the Executive Order, (2) “a  brief delay in [the plaintiffs’] removal does not cause the government harm,” and (3) the plaintiffs face irreparable harm since they will be deported to “prisons in other countries or even back to Venezuela where they face persecution or worse.”[13]  During the hearing, Judge Boasberg also ordered the government to “immediately” comply with the TRO and demanded that the government halt all planes or return planes that had already taken off.[14]  At 7:25 p.m., Judge Boasberg published a written order memorializing the TRO.[15]

It was later confirmed that three removal flights departed from Harlingen, Texas during that hearing, around 5:25 p.m., 5:45 p.m., and 7:36 p.m.[16]  All three planes were still in the air when the TRO was published, and all three planes arrived in El Salvador the following day.  Later that day, Secretary of State Marco Rubio shared a video originally posted by El Salvador’s President Nayib Bukele recording the passengers being led off the plane in handcuffs and taken into a prison.[17]  On March 17, 2025, the White House reported that 137 people had been removed from the United States under the AEA, although that figure may now be higher.[18]

The government appealed the district court’s decision, and sought a stay of the TRO.[19]  The United States Court of Appeals for the District of Columbia Circuit denied the government’s request,[20] and the government appealed that decision to the U.S. Supreme Court.[21]  On April 7, 2025, the Supreme Court published an unsigned order vacating the TRO for improper venue but holding that the government cannot deport individuals without the “notice and opportunity” to challenge their removal in federal court.[22]  Specifically, the Court noted that “the Fifth Amendment entitles [noncitizens] to due process of law in the context of removal proceedings,” and that detainees must receive notice that they are subject to removal “within a reasonable time and in such a manner as will allow them to actually seek habeas relief” before the removal.[23]  While the Court did not discuss the validity of the Executive Order,  it noted that challenges to removal under the AEA must be brought in habeas corpus proceedings in the jurisdiction where the individual is confined.[24]  As the plaintiffs in J.G.G. were detained in New York and Texas, the Court found that they had improperly filed in Washington, D.C.[25]

Contempt of Court – J.G.G. v. Trump:

On March 17, 2025, Judge Boasberg held a hearing to investigate whether the Trump Administration was in contempt of the TRO.[26]  During the hearing, the government refused to answer any questions, invoking “national security concerns” and arguing that the hearing was an “incursion[] on Executive Branch authority.”[27]  Judge Boasberg directed the Department of Justice to certify that no noncitizens were removed after the written order (published at 7:25 p.m. on March 15, 2025), to confirm the exact time the Executive Order was signed, made public, and went into effect, and to provide an estimate of the number of individuals subject to the Executive Order that remain in custody.  Weeks of what Judge Boasberg called “increasing obstructionism” followed as the government refused to substantively respond to the information requests.[28]  On April 16, 2025, Judge Boasberg determined that the government’s actions “demonstrate a willful disregard” for the TRO, concluding that probable cause existed to find the government in criminal contempt.[29] Even though by that time the Supreme Court had vacated the TRO for a venue defect, Judge Boasberg concluded that “even a legally defective order must be complied with until reversed through the appeals process.”[30]

Habeas Corpus Proceedings: Spotlighting A.A.R.P. and W.M.M. v. Trump:

Following the Supreme Court’s ruling on jurisdiction and venue, several plaintiffs filed habeas petitions in nine federal districts: the Southern District of New York,[31] the District of Rhode Island,[32] the Middle District of Georgia,[33] the Southern District of Texas,[34] the District of Nevada,[35] the Western District of Pennsylvania,[36] the District of Colorado,[37] the District of Columbia,[38] and the Northern District of Texas.[39]  One of these cases garnered national attention and eventually resulted in a U.S. Supreme Court decision.  On April 16, the ACLU filed a habeas petition on behalf of two named plaintiffs, A.A.R.P. and W.M.M., in the Northern District of Texas, requesting a TRO and class certification for “all noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the [Executive Order].”[40]  The district court denied the TRO, stating that the individuals are “not facing such an imminent threat” of removal.  That same day, the plaintiffs learned that the detention facility had distributed removal notices to the detainees with warnings that removals were “imminent and will happen tonight or tomorrow.”[41]  On April 18, 2025, the plaintiffs filed emergency motions in the district court and Fifth Circuit Court of Appeals, and upon hearing no response, applied to the Supreme Court for an emergency injunction.[42]

Early the following morning, at 12:55 a.m. on April 19, 2025, the Supreme Court issued an unsigned, one-page order temporarily blocking the removal of the class of detainees until further order on the pending injunction motion.[43]  Justice Alito (joined by Justice Thomas) published a dissent hours later, calling the Court’s order “unprecedented and legally questionable relief.”[44]  The dissent took issue with the timing of the appeal, arguing that without a ruling from the lower courts, and without the opportunity for the government to have been heard, the order was inappropriate.

On May 16, 2025, the Supreme Court granted an injunction pending appeal for the two named plaintiffs and putative class members who “fac[e] an imminent threat of severe, irreparable harm.”[45]  The Court first determined that it had jurisdiction—even though the district court had not yet ruled on the plaintiffs’ request for an injunction—because the court’s inaction in the face of evidence that individuals were imminently being removed “had the effect of refusing an injunction.”[46]  On the merits, the Court restated its conclusions in J.G.G v. Trump that providing “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal” was not “reasonable” and did not provide “sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”[47]  The Court did not discuss the underlying legality of the invocation of the AEA, nor did it determine what process would be reasonable to satisfy due process rights; it remanded both questions to the Fifth Circuit, where the matter remains pending.[48]

The Supreme Court’s injunction in A.A.R.P. only binds class members within the Fifth Circuit.[49]  As prescribed by the Supreme Court’s May 16 opinion, each lower court is to determine what constitutes “reasonable” and “sufficient” notice ahead of removal.[50]  Of the nine cases pending before the federal district courts, eight have granted temporary or preliminary injunctions against the Executive Order as of as of today’s date.[51]  With several separate cases pending across nine districts, the legal protections and rights for Venezuelan nationals suspected of being Tren de Aragua members may vary drastically from state to state.  The universal result of these pending cases is that the government is required to provide more notice to Venezuelan nationals before removal, but there may be no consistent approach across each district.

  1. Challenge to Removal of Kilmar Armando Abrego Garcia

Kilmar Armando Abrego Garcia is a citizen of El Salvador who had been living in the United States since 2011.[52]  In 2019, after the Department of Homeland Security (DHS) initiated removal proceedings against him, an immigration judge granted Mr. Abrego Garcia withholding of removal status, which forbade DHS from removing him to El Salvador due to the threats he faced there from a local gang.[53]  On March 12, 2025, however, DHS arrested Mr. Abrego Garcia and, within days, sent him (along with several Venezuelan nationals suspected of being Tren de Aragua members, discussed above) to a maximum security prison in El Salvador known as CECOT, based on his purported membership in the MS-13 gang.[54]  Although the government has said in court documents that Mr. Abrego Garcia’s removal was an “administrative error,” it has claimed that Mr. Abrego Garcia’s return to the United States would pose a threat to the public.[55]

On March 24, 2025, Mr. Abrego Garcia, his wife, and his son filed a lawsuit in the United States District Court for the District of Maryland, challenging his removal and seeking an order requiring the government to take steps to return him to the United States.  On April 4, 2025, Judge Paula Xinis issued an order finding that Mr. Abrego Garcia had been unlawfully removed to El Salvador in violation of the INA without any legal process and requiring the government to “facilitate and effectuate” his return to the United States.[56]  The government asked the United States Court of Appeals for the Fourth Circuit to stay the district court’s decision pending appeal, and the Fourth Circuit denied the government’s motion, writing: “The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process.”[57]  The government then applied to the United States Supreme Court for a stay, as well as vacatur of the district court’s injunction.  After granting a short administrative stay,[58] on April 10, 2025, the Supreme Court voted 9-0 to leave in place the portion of the district court order requiring that the government “facilitate [Mr.] Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”[59]  The Court ruled, however, that the district court should clarify the portion of its order requiring the government to “effectuate” Mr. Abrego Garcia’s return, as the intended scope of the term was “unclear, and may exceed the [district court’s] authority.”[60]  The Court instructed the district court to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” while “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”[61]

On remand, the district court amended its order, directing the government to “take all available steps to facilitate the return of Mr. Abrego Garcia to the United States as soon as possible,” as well as file a declaration detailing “(1) the current physical location and custodial status of [Mr.] Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate [Mr.] Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendants will take, and when, to facilitate his return.”[62]  The government asked the Fourth Circuit for another stay pending appeal, which the Fourth Circuit denied as “both extraordinary and premature.”[63]  Writing for a unanimous panel, Judge J. Harvey Wilkinson explained:

It is difficult in some cases to get to the very heart of the matter.  But in this case, it is not hard at all.  The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.  Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.  This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. . . . The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints.  If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?  And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning.[64]

Judge Wilkinson rejected the government’s assertion that it only had to work on domestic bars to Mr. Abrego Garcia’s release, pointing to the “Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.”[65]  “Facilitation,” Judge Wilkinson explained, “does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns.”[66]

Discovery in the case is currently ongoing as the district court continues to attempt to assess what steps the government has taken and will take to comply with the court’s order.  On April 22, 2025, the district court criticized the government for failing to satisfy its discovery obligations under the court’s expedited discovery plan.[67]  The district court described the government’s objections to various discovery requests as “reflect[ing] a willful and bad faith refusal to comply with discovery obligations.”[68]  On May 16, 2025, the district court again criticized the government for failing to comply with the court’s discovery orders.[69]  These reprimands have been coupled with indications from the district court that it would entertain sanctions motions from Mr. Abrego Garcia’s lawyers,[70] as well as possibly holding the government in contempt.[71] Though neither sanctions nor contempt have yet been pursued, the district court continues to push the government to meet the expedited discovery deadlines in place.  Mr. Abrego Garcia remains in El Salvador.

  1. Challenge to Termination of Temporary Protected Status for Venezuelans

Approximately 350,000 Venezuelans are currently present in the country under the 2023 Temporary Protected Status (TPS) designation for the country.[72]  On January 17, 2025, just days before leaving office, President Biden extended the TPS designation through September 2026, allowing those individuals the ability to continue to legally live and work in the country until then.  On January 28, 2025, approximately one week into the Trump Administration, DHS advised that they were “reviewing” the TPS designation; on February 5, 2025, they advised that the designation would end on April 7, 2025.  This marked the first time in the thirty-five-year history of the TPS statute that an agency has vacated a country’s designation.

On February 19, 2025, the National TPS Alliance and several individual TPS holders filed suit against DHS, challenging the vacatur of the extension of TPS for Venezuela and the subsequent termination of the original extension, alleging violation of the Administrative Procedure Act (APA) and the Fifth Amendment’s Equal Protection Clause.[73]  On March 31, 2025, Northern District of California Judge Edward M. Chen granted the plaintiffs’ motion to “postpone the effective date” of the decision to end TPS for Venezuela while the case proceeded through final judgment.[74]  The government appealed that decision to the Court of Appeals for the Ninth Circuit, which, on April 18, 2025, denied the emergency motion to stay the district court’s order.[75]  The government then requested emergency relief from the U.S. Supreme Court.

On May 19, 2025, the Supreme Court granted the requested emergency stay of the district court’s order to postpone the effective date of the TPS termination for Venezuela.  In doing so, protection for those individuals pending the outcome of the underlying litigation has been terminated.  The two-paragraph unsigned order has spurred confusion, however, about when and how the loss of lawful status and work authorization will occur, and the order may require further interpretation via lower courts.  Further proceedings are ongoing in the district court.

  1. Challenges to Termination of Birthright Citizenship

On the first day of his second term, President Trump issued Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” declaring that an individual born in the United States is not a citizen if, at the time of their birth, (1) their mother is “unlawfully present” or (2) their mother’s presence is “lawful but temporary,” if in either circumstances their father is not a U.S. citizen or lawful permanent resident.[76]  That Executive Order barred federal, state, and local governments from issuing documents purporting to recognize United States Citizenship for an individual in one of those categories, arguing they are not “subject to the jurisdiction” of the United States.[77]  The Executive Order has been challenged in numerous jurisdictions on the ground that it violates the Fourteenth Amendment’s guarantee of citizenship to anyone born in the United States.

The Fourteenth Amendment, passed during the Reconstruction era following the end of the Civil War, grants citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.”  In United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), the U.S. Supreme Court explained that the Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,” with limited exceptions for children of foreign ministers or of hostile occupiers.[78]  The Fourteenth Amendment’s citizenship guarantee, the Court explained, “includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.”[79]  Since Wong Kim Ark, the Court has repeatedly reaffirmed this view of birthright citizenship.  In U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73 (1957), the Court recognized that a child born to two individuals present in the U.S. illegally was “an American citizen.”  In I.N.S. v. Errico, 385 U.S. 214, 215 (1966), the Court explained that a child born to two individuals who acquired lawful immigration status by fraud still “acquired United States citizenship by birth.”  And in I.N.S. v. Rios-Pineda, 471 U.S. 444, 446 (1985), the Court again recognized that a child born to two parents living in the U.S. illegally nonetheless “was a citizen of this country.”

Thus far, three district court judges have barred the federal government from enforcing the Executive Order: Judges John Coughenour of the Western District of Washington,[80] Deborah Boardman of the District of Maryland,[81] and Leo Sorokin of the District of Massachusetts[82] all ruled that the Executive Order violates the Fourteenth Amendment’s guarantee of birthright citizenship.  The Ninth Circuit Court of Appeals,[83] Fourth Circuit Court of Appeals,[84] and First Circuit Court of Appeals,[85] respectively, have denied the government’s requests for stays of these district court orders.

On March 13, 2025, the government applied to the U.S. Supreme Court for a stay of the district courts’ injunctions.  The orders framed the issue not as one of the Executive Branch’s authority to define citizenship within the boundaries of the Fourteenth Amendment, but instead as one of the district courts’ power to issue nationwide injunctions.[86]  In the government’s view, the proper procedure would have been for the plaintiffs in each case to seek class certification and class-wide remedies.  Absent the Court reforming nationwide injunction practice, the government argued, the Executive Branch “cannot properly perform its functions.”  On April 17, 2025, the Court deferred a decision on the stay application pending oral argument,[87] which occurred on May 15, 2025.[88]  The Court has not yet ruled on the stay application, meaning that the Executive Order is still currently on pause.

  1. Challenge to Terminations of the Certain Humanitarian Parole Program

On January 20, 2025, President Trump issued an executive order, titled Securing Our Borders, that directed the Secretary of Homeland Security to “[t]erminate all categorical parole programs that are contrary to the policies of the United States established in [President Trump’s] Executive Orders,” including a Biden-era humanitarian parole program for Cubans, Haitians, Nicaraguans, and Venezuelans known as the CHNV program.[89]  In accordance with the Executive Order, on March 25, 2025, DHS published a Federal Register Notice announcing the immediate termination of the CHNV program.[90]  The Notice also announced the termination of all paroles under the program effective April 24, 2025 (unless the DHS Secretary makes an individual determination to the contrary), and further directed that parolees without a lawful basis to remain in the United States following the termination of the CHNV program must depart the United States before their parole termination date.

On February 28, 2025, parole beneficiaries and a members alliance filed a putative class action in the District of Massachusetts challenging the end of the CHNV program and other humanitarian parole programs, including Central American Minors Parole, Family Reunification Parole, Military Parole-in-Place, Uniting for Ukraine, and Operation Allies Welcome.[91]  The plaintiffs alleged violations of the APA and Due Process violations associated with the parole program revocations, as well as DHS’s later representations that it had suspended processing of applications for other immigration benefit requests filed by certain parolees.

On April 15, 2025, Judge Indira Talwani issued an order staying the Notice insofar as it purported to revoke, without case-by-case review, previously granted parole and work authorizations issued to CHNV parolees prior to the originally stated parole end date.[92]  The order further stayed all individualized notices sent to CHNV parolees via their USCIS online account notifying them that their parole was being revoked without case-by-case review.  Among other things, Judge Talwani concluded that the plaintiffs were likely to succeed on their claim that the categorical termination of existing grants of parole was arbitrary and capricious.  Judge Talwani further concluded that, absent preliminary relief, the plaintiffs would “be forced to choose between two injurious options: continue following the law and leave the country on their own, or await removal proceedings. . . . The first option will expose Plaintiffs to dangers in their native countries and will cause Plaintiffs to forfeit their APA claims.  The second option will put Plaintiffs at risk of arrest and detention and, because Plaintiffs will be in the United States without legal status, undermine Plaintiffs’ chances of receiving other forms of immigration relief in the future—potentially permanently.”

The government appealed to the First Circuit Court of Appeals and asked for a stay pending appeal.[93]  On May 5, 2025, the First Circuit Court of Appeals denied the government’s emergency motion for a stay.[94]  On May 8, 2025, the government asked the U.S. Supreme Court to stay Judge Talwani’s order, and on May 30, 2025, the U.S. Supreme Court granted the stay in a one-paragraph order, with a lengthy dissent from Justice Jackson (joined by Justice Sotomayor).[95]  Therefore, as of today’s date, the injunction pausing the mass revocation of CHNV parole has been reversed, and many CHNV parolees’ status has been terminated effective immediately.

Two days before the Supreme Court stayed the April 15 order on CHNV parole, on May 28, 2025, the district court issued its order on other forms of parole, staying the suspension of adjudication of re-parole applications and other immigration benefits for individuals lawfully present under categorical parole programs.[96]  This order was not directly impacted by the May 30 Supreme Court order, so for the time being, it remains in effect.

  1. Challenge to Registration Requirements for Certain Noncitizens

On March 12, 2025, DHS announced an interim final rule, effective April 11, 2025, that—for the first time in decades—purports to enforce the registration requirements of the Immigration and Nationality Act (INA) against certain noncitizens.  These requirements include submitting a newly available registration form online and undergoing biometrics screening.[97]  Noncitizens who follow such registration requirements will be issued a certificate or receipt card that they must carry with them at all times.[98]

On March 31, 2025, four organizations—Coalition for Humane Immigrant Rights (a California-based nonprofit that provides services to immigrant communities), United Farmworkers of America (an organization that focuses on improving the lives of agricultural workers), CASA, Inc. (a nonprofit that works to improve the quality of life in working-class diverse and immigrant communities), and Make the Road New York (a nonprofit that works to improve the lives of low-income New Yorkers)—filed suit in the United States District Court for the District of Columbia and moved for a stay of the effective date of the rule (or, in the alternative, for a preliminary injunction) and to enjoin the government from implementing or enforcing the rule for the pendency of the litigation.[99]  Among other things, the plaintiffs argued that the rule violated the APA for failing to follow its notice and comment procedures and for being arbitrary and capricious.[100]

On April 10, 2025, Judge Trevor N. McFadden denied the plaintiffs’ motion on the basis that they had “failed to show that they have a substantial likelihood of standing.”[101]  Judge McFadden concluded that the plaintiff organizations’ harms were “too speculative,” and they failed to show that the rule would “erode their core missions.”  As a result, on April 11, 2025, the rule went into effect, meaning that certain noncitizens, namely those who have not applied for a visa, submitted one of several specific forms for immigration relief, or been issued one of several types of identity, visa, entry, or lawful status documents,[102] are required to register.[103]  Noncitizens who are required to register but willfully fail to do so (or to provide proof of registration when requested by law enforcement) could face civil and criminal penalties including a fine of up to $5,000 or imprisonment for up to six months, or both.[104]  On April 24, 2025, the plaintiffs appealed the district court’s decision to the District of Columbia Circuit Court[105] and moved the District Court for an injunction pending appeal.[106]  Both the appeal and the motion are currently pending, meaning the registration requirement remains in effect as of today.

  1. Challenges to Revocation of Certain Student Visas

Foreign Student Visas and the Student Exchange Visitor System (SEVIS)

Foreign students can study in the United States by applying for one of three types of visas.  An F-1 visa is the most used, allowing students to attend an academic institution like a university; an M-1 visa allows students to join a vocational program; and a J-1 visa allows students to enter into an “exchange” program with a cultural component.  Immigration and Customs Enforcement (ICE), as well as other agencies, use the Student and Exchange Visitor Program (SEVP) to monitor student status and compliance with their visas via the Student Exchange Visitor Information System (SEVIS).

The State Department may revoke visas for a number of reasons, ranging from violations of their status, criminal offenses, failure to register change of address, falsification of documents, engagement in any activity related to espionage, endangerment of public safety or national security, participation in an activity related to the opposition to or overthrow of the U.S. Government, or where their presence has potential adverse foreign policy consequences for the U.S. Government.[107]  The State Department has clarified that a visa may be revoked even without a formal criminal charge, and all that is required is “derogatory information directly from another U.S. Government agency, including a member of the intelligence or law enforcement community.”[108]  If a student violates a term of their student visa, they are ineligible to return to the United States for five years after the date of their violation.[109]

Beginning in March 2025, thousands of international students and recent graduates were advised that their SEVIS records had been terminated, that their underlying visas had been revoked, or both.  DHS officials have stated that this was done as part of a “Student Criminal Alien Initiative” targeting students who had had any form of interaction with some form of law enforcement, whether or not it resulted in a criminal conviction that qualified for visa revocation under the law (or any criminal conviction at all).[110]

Doe v. Trump[111]

Following the Student Criminal Alien Initiative, at least 65 lawsuits were filed on behalf of at least 300 students whose SEVIS records and/or visas were terminated.  One such group of consolidated cases, titled Doe v. Trump under the lead case, was filed by a group of student-plaintiffs in the Northern District of California on April 7, 2025, alleging that their SEVIS records and/or student visas were terminated in violation of the APA and requesting a TRO.[112]  On April 25, 2025, the court held a hearing on the TRO requests and granted (or extended) them in each of the consolidated cases.  On May 14, 2025, the court held a hearing on motions for preliminary injunctions, during which counsel for ICE advised that they would be restoring SEVIS records retroactively and contacting every individual impacted by mass terminations.

On May 22, 2025, Judge Jeffrey S. White issued a nationwide preliminary injunction prohibiting the arrest, incarceration, or “impositi[on of] any adverse legal effect” on individuals similarly situated to the plaintiffs pending the final resolution of the matter.[113]  In his order, Judge White noted that the plaintiffs were likely to succeed on their APA claim that the “decision to terminate their SEVIS records was arbitrary and capricious because the decision was not based on a rational connection between the facts found and the choice made,” and that the “overwhelming majority of courts considering these cases have determined the plaintiffs are likely to succeed on the merits of the same claims presented here.”[114]  Currently, therefore, international students whose SEVIS records were terminated or visas revoked via the mass Student Criminal Alien Initiative should have those terminations reversed and visas reinstated, permitting their continued lawful presence in the country for the pendency of their studies.

  1. Challenges to Executive Actions Withholding Funding for Immigration-Related Services

The Trump Administration has suspended or entirely terminated funding for various grants and programming, including programs that assist noncitizens navigating the immigration legal system.  Gibson Dunn is counsel in three of these cases, summarized below.

Amica Center for Immigrant Rights, et al. v. U.S. Department of Justice[115]

For more than two decades, Congress has appropriated funding for the Department of Justice specifically to spend on providing basic legal orientation programs (including a flagship Legal Orientation Program, or “LOP”) to educate noncitizens about legal rights and responsibilities in immigration detention facilities and immigration courts.  These programs are often the only source of reliable legal information for many noncitizens, and the lawyers that run these programs are often the only non-government lawyers regularly inside immigration detention facilities.  In January 2025, the Trump Administration issued a “stop work order” for these programs.  On January 31, 2025, represented by Gibson Dunn, non-profit legal service providers that run these programs with government funding filed suit in the U.S. District Court for the District of Columbia to prevent the government from eliminating the programs.  The suit brings claims under the APA and constitutional claims.  Just days after the legal service providers filed their complaint, the government rescinded its stop work order.  But on April 16, 2025, the government again stopped all funding for the legal orientation programs.  The legal service providers moved for summary judgment, and Judge Randolph Moss ordered the government to supplement the administrative record in response to the government’s contention that it was going to “federalize” the programs.  The programs are not currently being funded while the case is ongoing.

United States Conference of Catholic Bishops v. U.S. Department of State[116]

The United States has provided resettlement assistance for newly admitted refugees since 1980 under the Refugee Act and a series of appropriations bills.  But on January 24, 2025, citing two Executive Orders, the State Department ended its relationships with private resettlement agencies and suspended resettlement assistance for refugees already in the country.  The United States Conference of Catholic Bishops (USCCB) is one of the affected resettlement partners, and has long been providing services to refugees in the United States.  The initial-resettlement services mandated by the Refugee Act for refugees in their first 90 days include food, housing, job training, English education, and other services aimed at successful integration into the United States and material support during the transition.  At the time of the suspension, USCCB had nearly 7,000 refugees in their initial-resettlement period in its care, all assigned to the Conference by the federal government.  On February 26, and after USCCB (represented by Gibson Dunn) filed suit, the State Department terminated its cooperative agreements with the USCCB, stating that the agreements “no longer effectuate[] agency priorities.”  USCCB and its partner organizations were forced to rely on their own resources to serve the refugees in their care, lay off staff, and cut back on services provided.  In its lawsuit in the U.S. District Court for the District of Columbia, USCCB brings claims under the Constitution, the Refugee Act, the Impoundment Control Act, the APA, and State Department regulations.  USCCB is asking the Court to set aside the suspension and termination of its relationship with the United States and enter an injunction requiring the United States to provide the assistance mandated by Congress for newly admitted refugees.

Community Legal Services in East Palo Alto, et al. v. U.S. Department of Health & Human Services[117]

For more than a decade, the Department of Health & Human Services (HHS) has paid legal service providers to provide legal representation to unaccompanied children—children who arrive in the United States without a parent or legal guardian, and who may be as young as just a few months old.  HHS provided this funding to comply with a command from Congress in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which orders HHS to fund legal representation for unaccompanied children to the extent it has funding available to do so.  In March 2025, HHS cut all funding for this representation.  Represented by Gibson Dunn, non-profit legal service providers quickly filed suit and sought a TRO.  Judge Araceli Martinez-Olguin of the U.S. District Court for the Northern District of California issued a TRO commanding the government to continue funding legal representations for unaccompanied children.  The government appealed the TRO and the Ninth Circuit dismissed the appeal.  Judge Martinez-Olguin then issued a preliminary injunction, commanding the government to continue funding the legal representations through the resolution of the case.  The government has appealed that order, and the appeal is pending in the Ninth Circuit.  The Ninth Circuit has rejected the government’s request to stay the preliminary injunction pending the appeal, meaning that the preliminary injunction requiring HHS’s compliance with Congress’s mandate to fund representation for unaccompanied children remains in effect.

[1] “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua,” The White House (Mar. 15, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua/.  While the Executive Order was issued and signed on March 14, 2025, it was not published online until March 15, 2025.

[2] Id.

[3] 50 U.S.C. § 21.

[4] Id. §§ 21, 22.

[5] Jennifer Elsea, Cong. Rsch. Serv., LSB 11269, The Alien Enemy Act: History and Potential Use to Remove Members of International Criminal Cartels 3 (Apr. 2, 2025).

[6] Id.  See also Amended Class Action Petition for Writ of Habeas Corpus and Complaint, J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 1270187 (D.D.C. Apr. 24, 2025).

[7] Elsea, supra note 5.

[8] Trump v. J.G.G., 145 S.Ct. 1003 (2025).

[9] Complaint and Petition for Writ of Habeas Corpus, J.G.G. v. Trump, 2025 WL 836447 (D.D.C. Mar. 15, 2025).

[10] Transcript of Proceedings before Chief Judge James E. Boasberg at 11, J.G.G. v. Trump, No. 1:25CV00766, (D.D.C. Mar. 15, 2025).

[11] Id. at 15.

[12] Id.

[13] Id. at 41–43.

[14] Id. at 43.

[15] Minute Order on Motion for Temporary Restraining Order, J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 825116 (D.D.C. Mar. 15, 2025); see also Transcript of Proceedings before Chief Judge James E. Boasberg, J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 829734 (D.D.C. Mar. 15, 2025).

[16]Luke Broadwater, et al., A Judge Ordered Deportation Planes to Turn Around.  The White House Didn’t Listen, NYTimes (Apr. 8, 2025), available at https://www.nytimes.com/2025/03/17/us/politics/timeline-trump-deportation-flights-el-salvador.html.

[17] Id.

[18] US/El Salvador: Venezuelan Deportees Forcibly Disappeared, Human Rights Watch (Apr. 11, 2025), available at https://www.hrw.org/news/2025/04/11/us/el-salvador-venezuelan-deportees-forcibly-disappeared.

[19] Application to Vacate the Orders Issued by the United States District Court for the District of Columbia and Request for an Immediate Administrative Stay, J.G.G. v. Trump, No. 25-5067, 2025 WL 914682 (D.C. Cir. Mar. 26, 2025).

[20] Id.

[21] Application to Vacate the Orders Issued by the United States District Court for the District of Columbia and Request for an Immediate Administrative Stay, Trump v. J.G.G., No. 24A, 2025 WL 962719 (March 2025)

[22] Trump v. J.G.G., 145 S.Ct. 1003 (Apr. 7, 2025).

[23] Id. at 1006.

[24] Id.

[25] Id.

[26] Transcript of Proceedings before Chief Judge James E. Boasberg, J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 829734 (D.D.C. Mar. 17, 2025).

[27] Id.

[28] Memorandum Opinion regarding Probable Cause Order, J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 1119481 (D.D.C. Apr. 16, 2025).

[29] Id. at *7.

[30] Id.

[31] G.F.F. v. Trump, No. 25 Civ. 2886 (AKH), 2025 WL 1166911 (S.D.N.Y. Apr. 11, 2025).

[32] G.M.G. v. Trump, 1:25-CV-00195 (D.R.I. May 5, 2025).

[33] Y.A.P.A. v. Trump, 4:25-CV-00144 (M.D. Ga. Apr. 30, 2025).

[34]  J.A.V. v. Trump, No. 1:25-CV-072, 2025 WL 1064009 (S.D. Tex. Apr. 9, 2025).

[35] Viloria Aviles v. Trump, 2:25CV00611 (D. Nev. Apr. 3, 2025).

[36] A.S.R. v. Trump, No. 3:25-cv-00113-SLH, 2025 WL 1122485 (W.D. Pa. Apr. 15, 2025).

[37] D.B.U. v. Trump, No. 1:25-cv-01163-CNS, 2025 WL 1106556 (D. Colo. Apr. 14, 2025).

[38] J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 1352316 (D.D.C. Apr. 24, 2025).

[39] A.A.R.P. v. Trump, No. 1:25-cv-00059, 2025 WL 1148140 (N.D. Tex Apr. 27, 2025).

[40] Complaint – Class Action: Class Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, A.A.R.P. v. Trump, No. 1:25-cv-00059, E.C.F. No. 1 (N.D. Tex Apr. 16, 2025).

[41] Petitioners-Plaintiffs’ Renewed Emergency Application for Temporary Restraining Order, A.A.R.P. v. Trump, No. 1:25-cv-00059, E.C.F. No. 30 (N.D. Tex. Apr. 18, 2025).

[42] Emergency Application for an Emergency Injunction or Writ of Mandamus, Stay of Removal, and Request for an Immediate Administrative Injunction, A.A.R.P. v. Trump, No. 24A1007, 2025 WL 1171734 (S. Ct. Apr. 19, 2025).

[43] A.A.R.P. v. Trump, No. 24A1007, 145 S. Ct. 1034 (Mem) (S. Ct. Apr. 19, 2025).

[44]  Id. at 1036 (Alito, J., dissenting).

[45] A.A.R.P. v. Trump, Nos. 24A1007, 24-1177, 2025 WL 1417281, at *2 (S. Ct. May 16, 2025).

[46] Id. at *3.

[47] Id. at *2.

[48] Id. at *4.

[49] Id.

[50] Id. at *2.

[51] One case is still pending in the District of Columbia District Court. See J.G.G. v. Trump, No. 1:25CV00766, 2025 WL 1349496 (D.D.C. May 8, 2025).

[52] See Abrego Garcia v. Noem, 2025 WL 1014261, at *2 (D. Md. Apr. 6, 2025).

[53] See id.

[54] Id. at *3.

[55] Application to Vacate the Injunction Issued by the United States District Court for the District of Maryland and Request for an Immediate Administrative Stay, Noem v. Abrego Garcia, No. 24A949, 2025 WL 1038907 (U.S. April 1, 2025).

[56] Abrego Garcia v. Noem, 2025 WL 1024654, at *1 (D. Md. Apr. 4, 2025), amended, 2025 WL 1085601 (D. Md. Apr. 10, 2025).

[57] See Abrego Garcia v. Noem, 2025 WL 1021113 (4th Cir. Apr. 7, 2025).

[58] Noem v. Abrego Garcia, 2025 WL 1022673 (U.S. Apr. 7, 2025), vacated, 2025 WL 1077101 (U.S. Apr. 10, 2025).

[59] Noem v. Abrego Garcia, 145 S.Ct. 1017, 1018 (2025) (internal quotation marks omitted).

[60] Id.

[61] Id.

[62] Abrego Garcia v. Noem, 2025 WL 1085601, at *1 (D. Md. Apr. 10, 2025).

[63] Abrego Garcia v. Noem, 2025 WL 1135112, at *1 (4th Cir. Apr. 17, 2025).

[64] Id. at *1-2.

[65] Id.

[66] Id. at 2.

[67] Devan Cole, ‘That ends now’: Judge overseeing Abrego Garcia case knocks Trump administration for repeated stonewalling, CNN (Apr. 22, 2025); available at https://www.cnn.com/2025/04/22/politics/abrego-garcia-judge-xinis-justice-that-ends-now.

[68] Abrego Garcia v. Noem, 2025 WL 1166402, at *1 (D. Md. Apr. 22, 2025).

[69] See Alan Feuer and Aishvarya Kavi, U.S. Takes Defiant Stance in Court, Saying Abrego Garcia Deportation Was Lawful, N.Y. Times (May 16, 2025); available at https://www.nytimes.com/2025/05/16/us/politics/doj-trump-deportation-abrego-garcia.html.

[70] Gary Grumbach and Dareh Gregorian, Judge in Abrego Garcia case indicates she’s weighing contempt proceedings against Trump administration, NBC News (Apr. 15, 2025), available at https://www.nbcnews.com/politics/immigration/judge-abrego-garcia-case-indicates-weighing-contempt-proceedings-trump-rcna201359.

[71]Sareen Habeshian, Judge in deportation case threatens Trump admin with contempt of court, Axios (Apr. 16, 2025), available at https://www.axios.com/2025/04/15/kilmar-abrego-garcia-deported-case-return.

[72] TPS is a program established by Congress to protect individuals who cannot safely return to their home country due to war, natural disaster, or another emergency.  For further discussion of TPS, including the 2021 and 2023 designations for Venezuela, see Gibson Dunn’s Immigration Task Force Client Alert: Updates to Humanitarian Parole and Temporary Protected Status, dated February 24, 2025, available at https://www.gibsondunn.com/updates-to-humanitarian-parole-and-temporary-protected-status/.

[73] Complaint, National TPS Alliance v. Noem, 3:25-cv-01766, ECF No. 1 (N.D. Cal. Mar. 31, 2025).

[74] National TPS Alliance v. Noem, 3:25-cv-01766, ECF No. 93 (N.D. Cal. Mar. 31, 2025).

[75] National TPS Alliance, et al. v. Noem, et al., 25-2120, ECF No. 21 (9th Cir. Apr. 18, 2025).

[76] Exec. Order No. 14160, “Protecting the Meaning and Value of American Citizenship” (Jan. 20, 2025).

[77] Id. § 2(a); see also Gibson Dunn’s Immigration Task Force Client Alert, Jan. 27, 2025, available at https://www.gibsondunn.com/gibson-dunn-launches-immigration-task-force/.

[78] 168 U.S. 649, 693 (1898).

[79] Id.

[80] Washington v. Trump, 2025 WL 272198 (W.D. Wash. Jan. 23, 2025).

[81] CASA, Inc. v. Trump, 2025 WL 408636 (D. Md. Feb. 5, 2025).

[82] New Jersey v. Trump, 2025 WL 617583 (D. Mass. Feb. 26, 2025).

[83] Washington v. Trump, 2025 WL 553485 (9th Cir. Feb. 19, 2025).

[84] CASA, Inc. v. Trump, 2025 WL 654902 (4th Cir. Feb. 28, 2025).

[85] New Jersey v. Trump, 131 F.4th 27 (1st Cir. 2025).

[86] Application for a Partial Stay of the Injunction, Trump v. CASA, Inc., 2025 WL 817770 (U.S. Mar. 13, 2025).

[87] Trump v. CASA, Inc., 2025 WL 1132004 (U.S. Apr. 17, 2025).

[88] Transcript of Oral Argument, Trump v. CASA, Inc., 2025 WL 1424657 (U.S. May 15, 2025).

[89] Exec. Order No. 14165, 90 F.R. 8467, § 7(b) (Jan. 20, 2025), available at https://www.federalregister.gov/documents/2025/01/30/2025-02015/securing-our-borders.

[90] Department of Homeland Security, Termination of Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg. 13611 (Mar. 25, 2025), available at https://www.federalregister.gov/documents/2025/03/25/2025-05128/termination-of-parole-processes-for-cubans-haitians-nicaraguans-and-venezuelans (last visited May 30, 2025).

[91] Doe v. Noem, No. 1:25-cv-10495 (D. Mass.).

[92] Memorandum & Order Granting in Part Plaintiffs’ Emergency Motion for a Stay of DHS’sS En Masse Truncation of All Valid Grants of CHNV Parole, Doe v. Noem et al., No. 1:25-cv-10495-IT (D. Mass. Apr. 14, 2025), ECF No. 97.

[93] Doe v. Noem, et al., No. 1:25-cv-1384 (1st Cir. May 5, 2025).

[94] Id.

[95] Noem v. Doe, et al., 2025 WL 1534782 (S. Ct. May 30, 2025).

[96] Memorandum & Order Granting Partial Relief on Plaintiffs’ Motion for Preliminary Injunction and Stay of Administrative Action, Doe v. Noem et al., 2025 WL 1514420 (D. Mass. May 28, 2025).

[97] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793 (Mar. 12, 2025).

[98] Id.

[99] See Compl., Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Mar. 31, 2025); Br. for Pls., Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Mar. 31, 2025).

[100] See Br. for Pls. at 10–28, Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Mar. 31, 2025).

[101] See Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., 2025 WL 1078776, at *1 (D.D.C. Apr. 10, 2025).  On April 24, 2025, the plaintiffs filed their notice that they intended to appeal the District Court’s denial of their injunction motion.  Notice of Appeal, Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Apr. 24, 2025).

[102] See Alien Registration Requirement, U.S. Citizenship and Immigr. Servs, available at https://www.uscis.gov/alienregistration (last visited May 30, 2025).

[103] Many noncitizens are considered to have already registered.  See Gibson Dunn’s Immigration Task Force Client Alert: Agency Action Update, Mar. 21, 2025, available at https://www.gibsondunn.com/immigration-task-force-agency-action-update/.

[104] See Alien Registration Requirement, U.S. Citizenship and Immigr. Servs., available at https://www.uscis.gov/alienregistration (last visited May 30, 2025) (“It is the legal obligation of all unregistered aliens (or previously registered aliens who turn 14 years old) who are in the United States for 30 days or longer to comply with these requirements. Failure to comply may result in criminal and civil penalties, up to and including misdemeanor prosecution, the imposition of fines, and incarceration.”); Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11794 (Mar. 12, 2025) (“An alien’s willful failure or refusal to apply to register or to be fingerprinted is punishable by a fine of up to $5,000 or imprisonment for up to six months, or both.”).

[105] See Notice of Appeal from Denial of Preliminary Injunction, Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Apr. 24, 2025).

[106] See Pls.’ Mot. for Injunction Pending Appeal and Incorporated Mem. of Law, Coal. for Humane Immigrant Rts. v. U.S. Dep’t of Homeland Sec., No. 25 Civ. 943 (D.D.C. Apr. 24, 2025).

[107] 8 U.S.C. § 1127 (2025).

[108] Foreign Affs. Manual, U.S. Dep’t of State 9 FAM 403.11-5(B) (2024), available at https://fam.state.gov/fam/09FAM/09FAM040311.html#M403_11_5_B.

[109] 8 U.S.C. § 1182 (a)(6)(G) (2025).

[110] See, e.g., Vyas v. Noem, No. 3:25-cv-0261-RCC, 2025 WL 1351537, at *4 (S.D. W. Va. May 8, 2025).

[111] No. 4:25-cv-03140 (N.D. Cal.).

[112] Doe v. Trump was filed on behalf of a single student-plaintiff; the case was consolidated with various other cases brought on behalf of additional student-plaintiffs pending in the same district including S.Y. v. Noem, Chen v. Noem, Kim v. Noem, W.B. v. Noem, and Bai v. Noem.

[113] Ord. Granting Mots. Preliminary Injunction, No. 4:25-cv-03244-JSW, Doc. 50 at 20 (N.D. Cal. May 22, 2025).

[114] Id. at 19.

[115] No. 1:25-CV-00298 (D.D.C.).

[116] No. 1:25-cv-00465 (D.D.C.).

[117] No. 3:25-CV-02847 (N.D. Cal.).

The following Gibson Dunn lawyers prepared this update: Matt Rozen, Laura Raposo, Ariana Sañudo, Kayla Jahangiri, Zachary Goldstein, Arthur Halliday, Aly Cox, Shri Dayanandan, Carolyn Ye, and Matt Weiner.

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, the authors, any leader or member of the firm’s Pro Bono, Public Policy, Administrative Law & Regulatory, Appellate & Constitutional Law, or Labor & Employment practice groups, or the following members of the firm’s Immigration Task Force:

Stuart F. Delery – Co-Chair, Administrative Law & Regulatory Practice Group,
Washington, D.C. (+1 202.955.8515, sdelery@gibsondunn.com)

Naima L. Farrell – Partner, Labor & Employment Practice Group,
Washington, D.C. (+1 202.887.3559, nfarrell@gibsondunn.com)

Nancy Hart – Partner, Litigation Practice Group,
New York (+1 212.351.3897, nhart@gibsondunn.com)

Katie Marquart – Partner & Chair, Pro Bono Practice Group,
Los Angeles (+1 213.229.7475, kmarquart@gibsondunn.com)

Laura Raposo – Associate General Counsel,
New York (+1 212.351.5341, lraposo@gibsondunn.com)

Matthew S. Rozen – Partner, Appellate & Constitutional Law Practice Group,
Washington, D.C. (+1 202.887.3596, mrozen@gibsondunn.com)

Ariana Sañudo – Associate, Pro Bono Practice Group,
Los Angeles (+1 213.229.7137, asanudo@gibsondunn.com)

Betty X. Yang – Partner & Co-Chair, Trials Practice Group,
Dallas (+1 214.698.3226, byang@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

From the Derivatives Practice Group: This week, the CFTC added 43 unregistered foreign entities to its Red List.

New Developments

  • CFTC Adds 43 Unregistered Foreign Entities to RED List. On May 29, as part of the CFTC’s ongoing efforts to help protect Americans from fraud, the CFTC added 43 unregistered foreign entities to its Red List, a tool that provides information to U.S. market participants about foreign entities that are acting in an unregistered capacity and to help them make more informed decisions about trading. The Red List, which stands for Registration Deficient List, launched in 2015, and now contains almost 300 entities. [NEW]
  • CFTC Awards Approximately $700,000 to Whistleblower. On May 29, the CFTC announced a whistleblower award of approximately $700,000. The whistleblower information prompted the CFTC to open the investigation and described the misconduct that ultimately appeared in the order. The whistleblower also provided substantial assistance and helped the Commission conserve resources during the investigation. [NEW]
  • SEC Publishes Data on Regulation A, Crowdfunding Offerings, and Private Fund Beneficial Ownership Concentration. On May 28, the SEC published three new reports that provide the public with information on capital formation and beneficial ownership of qualifying private funds. The first two papers—analyses of the Regulations A and Crowdfunding markets—provide valuable information on how capital is being raised in the United States particularly by smaller issuers. The third paper on Qualifying Hedge Funds provides information on the interaction of beneficial ownership concentration, portfolio liquidity, investor liquidity, fund leverage, performance, and margins. [NEW]
  • CFTC Staff Issues Advisory on Market Volatility Controls. On May 22, the CFTC issued a staff advisory reminding designated contract markets and derivatives clearing organizations of certain core principles and regulatory obligations under the Commodity Exchange Act and CFTC regulations related to controls designed to address market volatility.
  • Commissioner Kristin N. Johnson Makes Statement on Departure from CFTC. On May 21, Commissioner Kristin N. Johnson announced that she intends to step down from the Commission later this year.
  • CFTC Staff Issues Interpretation Regarding Certain Cross-Border Definitions. On May 21, the CFTC issued an interpretative letter confirming the application of certain cross-border definitions to Susquehanna Crypto, a proprietary trading firm organized in a foreign jurisdiction. Specifically, the interpretative letter confirms that the proprietary trading firm is not a “person located in the United States” for purposes of the “foreign futures or foreign options customer” definition in Commission regulation 30.1(c); is not a “participant located in the United States” for purposes of Commission regulation 48.2(c); is a “foreign located person” for purposes of Commission regulation 3.10(c)(1)(ii); and is not a “U.S. person” as defined by Commission regulation 23.23(a) and the Commission’s 2013 Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations.
  • CFTC Releases Procedures on Registered Non-U.S. Swap Entities Using Substituted Compliance. On May 20, the CFTC released procedures regarding CFTC-registered non-U.S. swap dealers or major swap participants relying on substituted compliance. The procedures establish how CFTC Divisions will address potential non-compliance with foreign law that has been found by the CFTC to be comparable in outcome to the Commodity Exchange Act or CFTC regulations pursuant to a substituted compliance order.
  • SEC Names Katherine Reilly as Acting Inspector General. On May 19, the SEC announced the appointment of Katherine Reilly as the agency’s Acting Inspector General. Ms. Reilly is currently serving as a Deputy Inspector General at the SEC. She replaces Deborah Jeffrey, who has served as the SEC’s Inspector General since 2023 and is retiring.
  • SEC’s Division of Trading and Markets Releases FAQ Relating to Crypto Asset Activities and Distributed Ledger Technology. On May 15, the SEC prepared responses to frequently asked questions relating to crypto asset activities and distributed ledger technology. The responses cover topics relating to broker-dealer financial responsibility and transfer agents. These responses represent the views of the staff of the Division of Trading and Markets. They are not a rule, regulation, or statement of the SEC.
  • Commissioner Christy Goldsmith Romero Makes Statement on Departure from CFTC. On May 16, Commissioner Christy Goldsmith Romero announced that she intends to step down from the Commission and retire from federal service. Her final day at the Commission will be May 31.
  • Commissioner Summer K. Mersinger Makes Statement on Departure from CFTC. On May 14, Commissioner Mersinger announced that she intends to step down from her position as Commissioner at the CFTC at the end of the month, to pursue new opportunities.
  • CFTC Warns Public of Imposter Scam Targeting Fraud Victims. On May 14, the CFTC warned the public about a growing imposter scam involving individuals falsely claiming to represent the agency. According to the CFTC, scammers are contacting members of the public and claiming to represent the CFTC Office of Inspector General and promise to help financial fraud victims recover lost funds from foreign bank accounts. The CFTC Office of Inspector General stated that it will never contact individuals with offers to recover money lost to investment scams.
  • Acting Chairman Pham Makes Statement on Court Sanctions Against CFTC. On May 13, CFTC Acting Chairman Caroline D. Pham made a statement regarding the Federal District Court report and recommendations for sanctions against the CFTC for misconduct in CFTC v. Traders Global Group Inc, highlighting proactive efforts to overhaul the CFTC’s Division of Enforcement and reform culture and conduct, develop staff, and leverage expertise and reduce siloing.

New Developments Outside the U.S.

  • ESMA Urges Social Media Companies to Tackle Unauthorized Financial Ads. On May 28, ESMA wrote to several social media and platform companies encouraging them to take proactive steps to prevent the promotion of unauthorized financial services. This approach complements last week’s initiative launched by IOSCO, highlighting the global nature of doing online harm linked to financial misconduct. [NEW]
  • ESMA Renews the Mandate of the Chair and the Two Independent Members of the CCP Supervisory Committee. On May 28, ESMA renewed the mandates of Klaus Löber as Chair of the Central Counterparties (“CCP”) Supervisory Committee and Nicoletta Giusto and Froukelien Wendt as Independent Members. The renewed mandates will be effective as of December 1, 2025 for a 5-year period. [NEW]
  • ESMA Asks for Input on the Retail Investor Journey as Part of Simplification and Burden Reduction Efforts. On May 21, ESMA launched a Call for Evidence (“CfE”) on the retail investor journey under the Markets in Financial Instruments Directive 2014. The purpose of this CfE is to gather feedback from stakeholders to better understand how retail investors engage with investment services, and whether regulatory or non-regulatory barriers may be discouraging participation in capital markets.

New Industry-Led Developments

  • ISDA Provides Guidance for EU Model Application for ISDA SIMM®. On May 29, ISDA provided guidance to ISDA Standard Initial Margin Model (“SIMM”) users to promote awareness and facilitate a consistent approach to preparing data for the initial application. ISDA SIMM v2.7+2412 goes into effect on July 12, 2025, triggering the initial application requirement for its continued use by all financial and non-financial EU counterparties exchanging IM calculated using ISDA SIMM®. [NEW]
  • ISDA Publishes SwapsInfo for First Quarter of 2025. On May 27, ISDA published its SwapsInfo Quarterly Review. The review noted that interest rate derivatives trading activity increased in the first quarter of 2025, driven by elevated interest rate volatility, shifting central bank policy expectations and evolving inflation and growth outlooks. Trading in index credit derivatives also rose, as market participants responded to a changing macroeconomic environment and sought to manage credit exposure. [NEW]
  • IOSCO Issues Final Report on Updated Liquidity Risk Management Recommendations for Collective Investment Schemes. On May 26, IOSCO published its Final Report on Revised Recommendations for Liquidity Risk Management for Collective Investment Schemes (“CIS”), alongside its Implementation Guidance. The Final Report includes 17 recommendations across six sections: CIS Design Process, Liquidity Management Tools and Measures, Day-to-Day Liquidity Management Practices, Stress Testing, Governance and Disclosures to Investors and Authorities. [NEW]
  • ISDA Publishes ISDA SIMM® Methodology, Version 2.7+2412. On May 22, ISDA published updates to its SIMM methodology that are based on the full recalibration of the model and marked the first SIMM version publication of the new semiannual calibration cycle in 2025. The effective date of July 12, 2025 means that ISDA SIMM users should use SIMM version 2.7+2412 to calculate the initial margin for close of business on Friday, July 11, 2025 onwards. This means that the first day for exchange of initial margin calculated using SIMM version 2.7+2412 would be on Monday, July 14, 2025.
  • ISDA/SIFMA/SIFMA AMG Publish Joint Response to CFTC Request for Comment on 24-7 Trading. On May 21, ISDA, the Securities Industry and Financial Markets Association (“SIFMA”), and the SIFMA Asset Management Group (“SIFMA AMG”) jointly filed a comment letter in response to the CFTC’s request for comment on 24/7 trading and clearing. ISDA, SIFMA, and SIFMA AMG believe that the feasibility of both 24/7 trading and clearing needs to be evaluated holistically with an understanding of the interdependencies between market participants, trading venues, middleware and software providers, clearing systems, margining frameworks, payments systems, default mechanisms and adjacent markets.
  • IOSCO Makes Statement on Combatting Online Harm and the Role of Platform Providers. On May 21, IOSCO reiterated its concern about risks associated with investment fraud orchestrated through online paid-for advertisements and user-generated content. IOSCO stated that regulators and platforms providers are strategically positioned to mitigate the potential investor harm arising from these risks and asks platform providers to enhance efforts, consistent with local law, aimed at reducing risk of pecuniary harm to investors, which also threatens public trust in the services provided by platform providers.
  • IOSCO Releases Sustainable Bonds Report. On May 21, IOSCO published its Sustainable Bonds Report which identifies the key characteristics and trends tied to the sustainable bond market. IOSCO’s Report includes five key considerations which are designed to address market challenges, including enhancing investor protection, ensuring sustainable bond markets are operating in a fair and efficient way, and improving accessibility.
  • IOSCO Publishes Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices. On May 19, IOSCO published the Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices, as part of the third wave of its Roadmap for Retail Investor Online Safety. The Finfluencers Final Report explores the evolving landscape of finfluencers, the associated potential benefits and risks, and the current regulatory responses across jurisdictions.
  • IOSCO Concludes its 50th Annual Meeting. On May 15, IOSCO concluded its 50th Annual Meeting, which was hosted by the Qatar Financial Markets Authority (“QFMA”) in Doha. IOSCO welcomed near 500 participants over the course of three days, followed by the QFMA public conference. The IOSCO Annual Meeting brings all 130 member jurisdictions together to discuss the most relevant issues and risks with regard to global financial markets, and how to assist regulators in implementing standards through capacity building.
  • ISDA Publishes Paper Exploring Use of Generative AI to Extract and Digitize CSA Clauses. On May 15, ISDA published a whitepaper that shows generative artificial intelligence can be used to accurately and reliably extract, interpret and digitize key legal clauses from ISDA’s credit support annexes, showing how this technology could increase efficiency, cut costs and reduce risks in derivatives processes that have traditionally been highly manual and resource intensive.
  • ISDA Margin Survey Shows Leading Derivatives Firms Collected $1.5 Trillion of Margin at Year-end 2024. On May 14, ISDA published its latest annual margin survey, which shows that initial margin (“IM”) and variation margin collected by leading derivatives market participants for their non-cleared derivatives exposures increased by 6.4% to $1.5 trillion at the end of 2024. The 32 responding firms included all 20 phase-one entities (the largest derivatives dealers subject to regulatory IM requirements in the first implementation phase), five of the six phase-two firms and seven of the eight phase-three entities.
  • ISDA Extends Digital Regulatory Reporting to Support Revised Canadian Reporting Rules. On May 13, ISDA extended its Digital Regulatory Reporting solution to cover new reporting rules in Canada and has made it compatible with a trade reporting messaging format used for North America reporting to maximize the benefit of adoption by those firms subject to the rules. The revisions are being implemented by the Canadian Securities Administrators and are scheduled for implementation on July 25, 2025.

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)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Partner Matt Axelrod’s remarks during a recent webinar co-hosted by Gibson Dunn and the risk intelligence firm Kharon have been reported extensively in the Export Compliance Daily article “50% Rule Could Make Entity List Additions More Difficult, Former BIS Enforcement Chief Says.” In the webinar, Navigating the Evolving Landscape of Export Controls: Trends, Challenges, and Strategies, Matt and other industry leaders discussed the latest trends in export controls program developments, reviewed recent enforcement trends, and provided insights on what to expect going forward.

Read the article, “50% Rule Could Make Entity List Additions More Difficult, Former BIS Enforcement Chief Says,” in Export Compliance Daily.

Gibson Dunn’s New Associate Pods program, which has small groups of new associates in the same practice across different offices meeting once or twice a month with a professional development coach to brainstorm ideas and exchange personal experiences, is the subject of the Law360 Pulse article “Gibson Dunn Helps 1st-Year Associates Connect With ‘Pods.’”

Orange County associate Jonathan Ray and Ryan DuBose, director of professional development and one of six coaches who run the pods, describe how all first-year associates in the firm’s U.S. offices have participated in the virtual program since it was launched in 2020 during the start of the COVID-19 pandemic — over 800 associates to date.

Ryan says the program originated from a desire to ensure that associates could make connections, meet people, and access information and resources while working in different offices. “It was such a success that we’ve just continued it ever since.”

Jonathan adds that, as a new associate, “hearing from other people who were going through that exact same transition in a different part of the country was hugely beneficial, because it allowed me to normalize successes, normalize challenges and really feel integrated and connected at an early stage.”

The New Associate Pods program also involves a lot of one-on-one confidential coaching and professional development with the six coaches, all of whom previously practiced law at big firms.

Read the article, “Gibson Dunn Helps 1st-Year Associates Connect With ‘Pods’,” in Law360 Pulse [PDF].

Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975 – Decided May 29, 2025

Today, the Supreme Court held that agencies have broad discretion under NEPA in determining the scope and contents of an Environmental Impact Statement, and that agencies need not consider the indirect environmental effects of a project or factors outside the agency’s regulatory jurisdiction.

“The EIS need not address the effects of separate projects. In conducting [their] review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.”

Justice Kavanaugh, writing for the Court

Background:

The National Environmental Policy Act (NEPA) requires federal agencies to consider the “reasonably foreseeable” environmental effects of permits and regulations that they issue. 42 U.S.C. § 4332(2)(C). Although NEPA does not impose substantive limits on what an agency may approve, it requires the agency to publish its analysis in an Environmental Impact Statement (EIS) that is then incorporated into the agency’s order and subject to judicial review under the Administrative Procedure Act.

The Seven County Infrastructure Coalition sought approval from the Surface Transportation Board (STB) to build a rail line in a remote part of Utah that would be used primarily to transport locally produced oil to the national rail network. After completing a 3,600-page EIS, the STB approved an 88-mile rail line. Environmental groups and Eagle County, Colorado challenged the STB’s approval, arguing that the STB made unreasonable analytical mistakes by failing to properly consider the project’s indirect environmental effects such as the effect on national rail-network traffic, the development of new oil wells in Utah, and the overall volume of oil processing on the Gulf Coast that could lead to more pollution and greenhouse gas emissions.

The STB defended its environmental analysis on the merits, and the Coalition intervened to argue that any analytical shortcomings were not actionable under NEPA because any indirect effects were not “reasonably foreseeable” insofar as they were neither proximate to the project nor within the STB’s regulatory authority. The D.C. Circuit ruled for the challengers, vacated the STB’s approval, and remanded for further environmental review. The Coalition appealed.

Issue:

Whether NEPA requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

Court’s Holding:

No. NEPA does not require an agency to study environmental impacts beyond either the proximate effects of the action or the scope of the agency’s regulatory authority.

What It Means:

  • Today’s decision will streamline federal permitting by limiting what agencies must consider in an EIS and limiting the ability of opponents to delay or defeat development projects through judicial challenges. The Court specifically noted that “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects,” and expressed its goal of reversing this trend.
  • As the Court explained, “NEPA is a procedural cross-check, not a substantive roadblock.” NEPA helps agencies be informed about the significant environmental effects of their actions by requiring the agencies to prepare a report identifying and discussing those effects. An EIS must evaluate the significant environmental effects of the project at hand that are within the agency’s regulatory jurisdiction, but the inclusion of other issues will generally be in the agency’s discretion.
  • The Court emphasized that courts should afford “substantial deference to the agency” in reviewing the scope and contents of an EIS. The Court also noted that even a defective EIS does not require a court to vacate an approval of a project absent a reason to believe the mistake would lead the agency to disapprove the project.

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: Environmental Litigation and Mass Tort

Stacie B. Fletcher
+1 202.887.3627
sfletcher@gibsondunn.com		 Daniel W. Nelson
+1 202.887.3687
dnelson@gibsondunn.com

Related Practice: Land Use and Development

Mary G. Murphy
+1 415.393.8257
mgmurphy@gibsondunn.com		 Benjamin Saltsman
+1 213.229.7480
bsaltsman@gibsondunn.com

This alert was prepared by partner Samuel Eckman and associate Aaron Gyde.

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Speaking to Law360, partner Quinton C. Farrar has shared insights into how rising geopolitical tensions and trade uncertainty are reshaping private equity dealmaking strategies. “Tariff policies and the corresponding threats to global trade have made companies with even modest tariff exposure difficult to price,” he explained.

Quinton added that the recent market turbulence has prompted a more cautious and technical approach. “Deals that are actually getting done are often taking longer and involve significant structure.”

Read more (registration required): https://www.law360.com/articles/2343828/in-volatile-world-pe-attys-guide-complex-take-private-deals

Partner Matt Donnelly recently shared insights with Tax Notes about the changes to the foreign-entity-of-concern rules in relation to clean energy tax credits in the budget bill passed by the U.S. House of Representatives — and the potential challenges these changes may pose for companies with international operations.

Read more (registration required): https://www.taxnotes.com/tax-notes-federal/energy-taxation/guide-budget-bills-big-changes-clean-energy-credits/2025/05/26/7s7q7

Current changes in regulations are transforming the business landscape—are you prepared? Please join us for a presentation that focuses on the latest developments in the ever-evolving area of ESG. As regulatory landscapes and investor expectations continue to adjust, companies should ensure that they are equipped to respond to the opportunities and challenges.

This 60-minute webcast provides valuable insights for companies assessing sustainability commitments and trying to determine how to best maneuver during these challenging times. We attempt to provide a strategic understanding of how to navigate regulatory and litigation complexities, as well as market expectations.

Key topics include:

  • ESG Outlook: Reporting and Disclosure Considerations
  • Assessing Greenwashing and Litigation Risk from Altering Sustainability Commitments in the US Market
  • European ESG Regulation: Cutting back the green deal?
  • Greenwashing Risks in Europe: Recent Developments

MCLE CREDIT INFORMATION:

This program has been approved for credit in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour may be applied toward the areas of professional practice requirement. This course is approved for transitional/non-transitional credit.

Gibson, Dunn & Crutcher LLP certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour.

Gibson, Dunn & Crutcher LLP is authorized by the Solicitors Regulation Authority to provide in-house CPD training. This program is approved for CPD credit in the amount of 1.0 hour. Regulated by the Solicitors Regulation Authority (Number 324652).

Neither the Connecticut Judicial Branch nor the Commission on Minimum Continuing Legal Education approve or accredit CLE providers or activities. It is the opinion of this provider that this activity qualifies for up to 1 hour toward your annual CLE requirement in Connecticut, including 0 hour(s) of ethics/professionalism.

Application for approval is pending with the Colorado, Illinois, Texas, Virginia, and Washington State Bars.

PANELISTS:

Ferdinand Fromholzer is a partner in the Munich office of Gibson Dunn and a member of the firm’s corporate group. Ferdinand’s practice focuses on corporate law, in particular advising strategic and private equity investors on public and private M&A transactions. He also advises public companies on a wide range of legal issues, including disclosure requirements under capital market law, annual shareholders’ meetings, corporate structure measures and ESG aspects. He is also experienced in counseling on the duties and obligations of directors and officers, including in the context of compliance investigations.

Julia Lapitskaya is a partner in the New York office of Gibson Dunn. She is a member of the firm’s Securities Regulation and Corporate Governance Practice Group and co-chair of the ESG: Risk, Litigation and Reporting Practice Group. Julia’s practice focuses on SEC, NYSE/Nasdaq and Securities Exchange Act of 1934 compliance, securities and corporate governance disclosure issues, board and committee matters, corporate governance best practices, state corporate laws, the Dodd-Frank Act of 2010, SEC regulations, investor engagement and shareholder activism matters, proxy and annual meeting matters, sustainability and corporate responsibility matters, and executive compensation disclosure issues, including as part of initial public offerings and spin-off transactions. Julia is a frequent author and speaker on securities law and ESG issues and is a member of the Society for Corporate Governance.

Michael Murphy is a partner in Gibson, Dunn & Crutcher’s Washington, D.C. office. He is a leader of the firm’s ESG: Risk, Litigation, and Reporting practice area, and is a member of the firm’s Environmental Litigation and Mass Tort Practice Groups. Michael counsels clients on environmental and ESG issues related to corporate transactions and compliance. Michael advises clients in a variety of corporate, private equity, finance and real estate transactions. He is experienced in identifying environmental risks and negotiating transactional documents for buyers, sellers and investors of manufacturing, service, technology, aerospace, petroleum, energy, and financial industry clients. His litigation experience enables him to approach each environmental transactional issue with a broad perspective that takes into account all of his clients’ concerns. He advises clients on ESG and sustainability matters, including corporate disclosures, policies, reporting and integration issues.

Markus Rieder is a partner in the Munich office of Gibson Dunn and co-chair of the firm’s Transnational Litigation practice. He is also a member of the firm’s Class Actions, Securities Litigation and International Arbitration Groups. Markus focuses his practice on complex commercial litigation, both domestic and cross-border, and national and international arbitration, as well as on compliance and white-collar defense. He has substantial experience in the automotive, industrial and manufacturing sectors. He also advises related to the increased risks of ESG litigation, encompassing a variety of issues including climate and environmental protection matters, human rights and the new German Supply Chain Due Dilligence Act, and represents clients in major cutting-edge issues such as climate protection lawsuits.

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Partner Eric Sloan spoke to Tax Notes about a last-minute change in the tax bill passed recently by the U.S. House of Representatives, which clarifies whether partnership rules on disguised sales and disguised fees for services are self-executing. While unexpected, Eric noted that the change may have limited practical impact.

“The subchapter K crowd has essentially practiced as if the [section 707] rules were operative in the absence of regulations for a long time, largely because we have all believed that a court would use one of many routes to reach the same result, even if a court found the code provision not to be self-executing,” he told the publication.

Eric is a Co-Chair of our firm’s Tax Practice Group.

Read more (registration required): https://www.taxnotes.com/tax-notes-today-federal/budgets/house-adds-tweak-partnership-disguised-sale-statute/2025/05/27/7s7z7

During the week of May 19, 2025, the Texas Legislature passed two sets of amendments to the Texas Business Organizations Code through SB 1057 and SB 2411. These amendments allow certain corporations to impose higher thresholds for shareholder proposals, expand exculpation to officers of the corporation and streamline the approval and administration of major business transactions. These changes will become effective on September 1, 2025.

Overview

During the week of May 19, 2025, two sets of amendments to the Texas Business Organizations Code (TBOC) passed the Texas Legislature. These amendments are in addition to the significant changes made by SB 29 that became effective on May 14, 2025. (See Gibson Dunn’s client alert summarizing SB 29 here.) On May 19, 2025, the Governor of Texas signed into law SB 1057, which allows certain publicly traded corporations to implement limitations on shareholder proposals. On May 27, 2025, the Governor of Texas signed into law SB 2411, which expands exculpation to include officers and streamlines the approval and administration of business transactions such as mergers and conversions.

SB 1057’s Key Changes to the TBOC

Limitations on Shareholder Proposals

SB 1057 allows certain corporations to implement significantly higher requirements for shareholder proposals. The amended provisions of the TBOC are available to any “nationally listed corporation,” which is defined as a corporation that has equity securities registered under Section 12(b) of the Securities Exchange Act of 1934; and that either

a. is admitted to listing on a national securities exchange and has its principal office in the State of Texas; or

b. is admitted to listing on a national securities exchange and is admitted to listing on a stock exchange that (i) has its principal office in the State of Texas and (b) has received certain approval from the Texas Securities Commissioner under a specified provision of the Government Code.

A corporation does not have to be incorporated in the State of Texas to take advantage of this new TBOC provision. Under Texas case law, the principal place of business of a corporation is the location where the corporation’s officers direct, control and coordinate the corporation’s activities.

To adopt these provisions, a nationally listed corporation must make an affirmative election by an amendment to one of the corporation’s governing documents. Under Texas law, governing documents include the certificate of formation and the bylaws. The corporation must provide notice to its shareholders of the proposed amendment to the governing documents in any proxy statement provided to shareholders in advance of adopting the amendment. The corporation must include in any proxy statement provided to shareholders specific information regarding how shareholders may submit a proposal on a matter requiring shareholder approval, including information about how the shareholders may contact one another for the purpose of satisfying the ownership requirements.

If a nationally listed corporation elects to adopt the new requirements, then, in order to submit a proposal requiring shareholder approval, a shareholder or a group of shareholders must hold a number of shares equal to at least $1 million in market value or 3% of the corporation’s voting shares. Voting shares of the corporation are defined as “shares that entitle the holders of the shares to vote on a proposal.” Ownership of the shares is determined as of the date the proposal is submitted, and the shareholders must hold such voting shares (i) for at least 6 months prior to the shareholder meeting and (ii) throughout the duration of the shareholder meeting. In addition, the shareholders must solicit holders of shares representing at least 67% of the voting power of shares entitled to vote on the proposal.

These provisions apply to any proposal on a matter to be submitted to shareholders for approval at a meeting of shareholders, other than director nominations and procedural resolutions that are “ancillary to the conduct of the meeting” (the scope of which is not defined). As such, the provisions apply not only to shareholder proposals under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (Rule 14a-8), but also to “floor” proposals submitted pursuant to a corporation’s advance notice provisions unless the proposal’s topic is “ancillary to the conduct of the meeting.”

Corporations evaluating adoption of SB 1057’s provisions should carefully evaluate views of their shareholders, enforceability under state corporate law for companies not incorporated in Texas, likely reactions by the proxy advisory firms, and how to implement the provisions, including whether to address procedural or interpretive aspects of the provisions.

Effective Date

These amendments will be effective on September 1, 2025.

SB 2411’s Key Changes to the TBOC

Expanded Exculpation of Officers

SB 2411 permits entities organized under the TBOC to limit or eliminate the liability of officers for monetary damages for an act or omission taken by the officer in his or her capacity as an officer of the entity, except that exculpation cannot be provided for breaches of loyalty, intentional misconduct, transactions in which the officer received an improper benefit, or statutory violations. SB 2411 provides exculpation to officers of the corporation to the same extent already permitted for directors. To adopt such exculpation provisions, an entity must make an affirmative election in their certificate of formation.

Streamlined Approval of Mergers, Major Transactions and Related Actions

SB 2411 expressly provides that the governing authority of an entity (e.g., board of directors of a corporation) may approve corporate documents such as plans, agreements and instruments in final or “substantially final form.” The amendments also provide that disclosure letters, schedules and other such similar documents to be delivered in connection with a plan of merger are not considered a part of the plan of merger unless expressly stated.

Under the amendments, a plan of merger may include provisions for appointing representatives to act on behalf of owners or members, with the sole exclusive authority to enforce or settle post-transaction rights. The appointment of such a representative may be made irrevocable and binding on the parties to such plan of merger upon approval of the plan.

In addition, the amendments provide that a plan of conversion can authorize any additional actions taken by the converted entity in connection with the plan of conversion without any approvals by the governing authority, owners or members of the converted entity other than approval of the plan of conversion itself.

Other

Among other things, SB 2411 also updates references in the TBOC to the new Texas Business Courts, includes certificate of formation content modernizations, and clarifies the use of ratifications and validations.

Effective Date

These amendments will be effective on September 1, 2025.

Conclusion

In summary, the recent amendments introduced by SB 1057 and SB 2411 represent the continual evolution of the TBOC. Collectively, these changes demonstrate the responsiveness and innovative approach Texas is taking to enhance the attractiveness of Texas as a jurisdiction for business formation and operation, while balancing the interests of boards of directors, managerial officials and shareholders. Gibson Dunn will continue to monitor and provide updates on any significant additional legal developments approved during the 89th Legislature’s regular session (which concludes on June 2, 2025) or that otherwise emerge.

Texas entities and publicly traded companies in Texas should review their board training presentations and organizational documents and any other applicable compliance policies against these changes and consider whether any updates may be appropriate. Gibson Dunn’s Texas lawyers are available to assist with any questions you may have regarding these developments.

The following Gibson Dunn lawyers prepared this update: Hillary Holmes, Gerry Spedale, Julia Lapitskaya, Ronald Mueller, and Jason Ferrari.

Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these developments. To learn more, please contact the Gibson Dunn lawyer with whom you usually work in the firm’s Securities Regulation & Corporate Governance practice group, or the authors:

Hillary H. Holmes – Houston (+1 346.718.6602, hholmes@gibsondunn.com)

Gerry Spedale – Houston (+1 346.718.6888, gspedale@gibsondunn.com)

Julia Lapitskaya – New York (+1 212.351.2354, jlapitskaya@gibsondunn.com)

Ronald O. Mueller – Washington, D.C. (+1 202.955.8671, rmueller@gibsondunn.com)

Jason Ferrari – Houston (+1 346.718.6736, jferrari@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

The do-over followed the Court’s separate conclusion that the board’s decision to reduce its size while in the shadow of a proxy fight was a breach of fiduciary duty.

The Delaware Court of Chancery recently concluded that a board properly rejected activists’ non-compliant director nomination notice, but nevertheless permitted the activists a rare second attempt at complying with the company’s advance notice bylaw.  Applying Unocal and Blasius in a post-trial memorandum opinion, the do-over followed the Court’s separate conclusion that the board’s decision to reduce its size while in the shadow of a proxy fight was a breach of fiduciary duty.

Background

On May 21, 2025, Vice Chancellor Bonnie W. David issued a decision in Vejseli v. Duffy, 2025 WL 1452842 (Del. Ch. May 21, 2025), invalidating a board resolution that reduced the size of the board and permitting activists a second attempt at complying with an advance notice bylaw in nominating two new directors.  The Court in this decision reaffirmed the enforcement of advance notice bylaws but, using its discretion as a court of equity, nevertheless provided a second chance at complying with the advance notice bylaw here due to the board’s own actions, which were not taken on a “clear day” and thus were a breach of the board’s fiduciary duties.

The opinion describes the facts as follows.  In January 2024, digital currency mining assets of a company in Chapter 11 proceedings were spun off to a newly formed entity, Ionic Digital, Inc. (the “Company”), and many creditors became stockholders of the Company.  The Company experienced significant management and director turnover, and a subset of stockholders became frustrated with the Company’s failure to publicly list its shares and what they considered other management failures.  These activists aligned themselves with non-stockholder third parties whom the Company had previously passed over for arguably lucrative business opportunities.  Those activists and third-party entities attempted to initiate a proxy contest at the Company’s first annual meeting of stockholders and install two new directors.

The Company’s board consisted of six seats (four directors and two vacancies), divided into three even classes, each standing for election every three years.  Class I, consisting of one director and one vacancy, was up for re-election at the upcoming annual meeting of stockholders.  In advance of the annual meeting, however, the Company’s board reduced its size from six directors to five, and, as a result, eliminated one of the two seats (which was vacant up until this point) that otherwise was going to be up for election.  Without disclosing the board size reduction, the board announced the annual meeting date, triggering a 10-day window for submissions of nominations or other proposals of business under the company’s advance notice bylaw.  The activists submitted nominations for the two board seats they believed were still up for election.  In their nomination notice, however, the activists failed to disclose all existing agreements between them and the third-party entities with which they had partnered.  After the nomination deadline passed, the board disclosed the board reduction and rejected the nomination notice based on the activists’ failure to include these agreements.  The activists filed suit, alleging, among other things, that the directors had breached their fiduciary duties by reducing the board size and rejecting the nomination notice.  In the meantime, the company postponed its annual meeting of stockholders until thirty days after the Court ruled in this action.

The Board Reduction

The Court first concluded that the board’s decision to reduce the board size was a breach of the board’s fiduciary duties.  In reaching its decision, the Court considered the board’s actions under the enhanced scrutiny standard of review under Unocal, with a focus on election interference under Blasius, which considers whether (1) the board faced a “real and not pretextual” threat “to an important corporate interest or to the achievement of a significant corporate benefit,” and (2) the board’s response to the threat was reasonable in relation to the threat posed and was not preclusive or coercive to the stockholder franchise.  The Court applied enhanced scrutiny because the resolution “interfere[d] with the election of directors,” and because the resolution was not adopted “on a ‘clear day,’” but rather as a defensive measure against the impending proxy contest.

In doing so, the Court noted that the most credible explanation offered at trial for the board reduction was that the board sought to ensure that “the Board, rather than the stockholders, could later identify better candidates,” which was “not a legitimate corporate purpose.”  The Court also found that (1) the resolution was not necessary to accomplish the objectives of “cost savings and avoiding deadlock” that the board asserted post hoc as the reasons for the resolution, and (2) the board reduction was preclusive, because by eliminating a seat, the board made it impossible for stockholders to elect directors to that position, and therefore imposed its own favored outcome on the stockholders.

The Advance Notice Bylaw

The Court also held that the board properly rejected the nomination notice.  First, the Court found that the activists failed to comply with the advance notice bylaw provision requiring “copies of all written agreements, contracts, arrangements, understanding, plans or proposals relating to” “[a]ny change in the present board of directors or management . . . , including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board” by not attaching the agreements between the activists and third-party entities and, more importantly, not even disclosing the existence of some of those agreements.  The agreements included, among others, a solicitation agreement—described by but not attached to the nomination notice—for “the purpose of (i) supporting the [n]ominating [s]tockholders in their efforts to achieve the election of the persons they have nominated (at the [n]ominating [s]tockholders’ sole discretion) to the Board . . . at the 2025 [A]nnual [M]eeting . . . of [the Company.]”  The Court concluded there are legitimate reasons why a board would want to know whether a nomination was part of a broader scheme relating to the governance, management, or control of the Company and such information was important to stockholders in deciding which director candidates to support.  While the Court cited precedent suggesting that information regarding terminated agreements could be important, the Court did not definitively resolve whether such agreements needed to be disclosed because some provisions in the activists’ arrangements survived termination.

Second, the Court concluded the directors did not breach their fiduciary duties by rejecting the nomination notice.  The Court analyzed the fairness of their decision under the enhanced scrutiny standard of review.  The Court determined that the board rejected the notice to advance the “important corporate interest[]” of “preserving an informed stockholder vote,” and that the board’s enforcement of the advance notice bylaw was both reasonable and not preclusive because “[e]nforcing the Advance Notice Bylaw is a reasonable means of ensuring that stockholders receive material information about director nominees” and “did not preclude [the activists] from submitting a compliant Nomination Notice.”  The Court also rejected the activists’ argument that the board’s failure to provide an opportunity to supplement the nomination notice before the nomination window closed was inequitable and found that such action did not amount to “manipulative conduct,” given that the  window closed only two days after the activists submitted the nomination notice, noting that “Plaintiffs could have complied with the Advance Notice Bylaw’s disclosure requirements, but they did not.”

Despite concluding the board properly and fairly rejected the activists’ nomination notice, as a consequence of the board’s breach of fiduciary duty in reducing the board size, the Court issued an injunction “directing the Board to reopen the nomination window under the Advance Notice Bylaw to allow the Board, Plaintiffs, and any other the Company stockholder to submit director nominations.”  In doing so, the Court stated that “[a] remedy that would permit the directors who breached their fiduciary duties to choose who will serve on the Board is no remedy at all.”  The Court also noted that the “unusual facts of this case” necessitated this remedy because it was the board’s own wrongful conduct that required re-opening the nomination window, and the record did not support the board’s position that the activists intentionally concealed material information.

Takeaways

  • This decision reaffirms that the Delaware Court of Chancery applies enhanced scrutiny under Unocal with a focus on stockholder franchise concerns articulated in Blasius when evaluating claims that a board breached its fiduciary duties by taking defensive action that impacts the election of directors.
  • The Court reinforced that Delaware law permits a company to reject a non-complying nomination notice after the close of the nomination window where the activists’ submission did not provide the company sufficient time to do so before the deadline. If such rejection is challenged, however, a court may still examine a board’s motives in rejecting even a non-complying notice.
  • To avoid triggering enhanced scrutiny review, directors and advisors should ensure that any adjustment to board size is done on a clear day and for legitimate corporate interests, as documented by the record. This supports the notion that any board size decrease should (ideally) be done in connection with any director departure and that leaving a vacancy open for a period of time could lead to scrutiny if circumstances change in the future.
  • This case is a reminder that the Delaware Court of Chancery, as a court of equity, has broad discretion to fashion a remedy for breach of fiduciary duty. That principle is difficult to predict and plan around.  It manifested here when, despite achieving practically complete victory with respect to the advance notice bylaw, the Company was compelled to give the activists another chance.
  • While the Court seemed to suggest that disclosure of recently terminated agreements would be appropriate, it also expressly acknowledged that it remains an open question whether an activists’ failure to disclose such agreements is sufficient to establish a violation of the advance notice bylaw at issue in this case. At minimum, disclosure is required where a material provision of such an agreement expressly survives termination.

The following Gibson Dunn lawyers prepared this update: Andrew Kaplan, Mark Mixon, and Justine Drohan.

Gibson Dunn 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, the authors, or any of the following Securities Litigation, Mergers and Acquisitions, Private Equity, or Securities Regulation and Corporate Governance practice group leaders and members:

Securities Litigation:
Monica K. Loseman – Denver (+1 303.298.5784, mloseman@gibsondunn.com)
Brian M. Lutz – San Francisco (+1 415.393.8379, blutz@gibsondunn.com)
Jason J. Mendro – Washington, D.C. (+1 202.887.3726, jmendro@gibsondunn.com)
Mark H. Mixon, Jr. – New York (+1 212.351.2394, mmixon@gibsondunn.com)
Craig Varnen – Los Angeles (+1 213.229.7922, cvarnen@gibsondunn.com)

Mergers and Acquisitions:
Andrew Kaplan – New York (+1 212.351.4064, akaplan@gibsondunn.com)
Robert B. Little – Dallas (+1 214.698.3260, rlittle@gibsondunn.com)
Saee Muzumdar – New York (+1 212.351.3966, smuzumdar@gibsondunn.com)
George Sampas – New York (+1 212.351.6300, gsampas@gibsondunn.com)

Private Equity:
Richard J. Birns – New York (+1 212.351.4032, rbirns@gibsondunn.com)
Ari Lanin – Los Angeles (+1 310.552.8581, alanin@gibsondunn.com)
Michael Piazza – Houston (+1 346.718.6670, mpiazza@gibsondunn.com)
John M. Pollack – New York (+1 212.351.3903, jpollack@gibsondunn.com)

Securities Regulation and Corporate Governance:
Elizabeth Ising – Washington, D.C. (+1 202.955.8287, eising@gibsondunn.com)
Thomas J. Kim – Washington, D.C. (+1 202.887.3550, tkim@gibsondunn.com)
Julia Lapitskaya – New York (+1 212.351.2354, jlapitskaya@gibsondunn.com)
James J. Moloney – Orange County (+1 949.451.4343, jmoloney@gibsondunn.com)
Ronald O. Mueller – Washington, D.C. (+1 202.955.8671, rmueller@gibsondunn.com)
Lori Zyskowski – New York (+1 212.351.2309, lzyskowski@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Partners Stephanie Brooker and M. Kendall Day are contributing editors to the International Comparative Legal Guide – Anti-Money Laundering 2025 and co-authors of the expert analysis chapter “Anti-Money Laundering Laws and Regulations: Top Developments in Anti-Money Laundering Enforcement in 2024” with of counsel Ella Alves Capone and Sam Raymond. All four also co-authored the jurisdiction chapter “USA: Anti-Money Laundering 2025.”

The Guide includes four expert analysis chapters and 15 jurisdictions, and covers issues including criminal enforcement, regulatory and administrative enforcement, and requirements for financial institutions and other designated businesses.

Gibson Dunn’s Anti-Money Laundering (AML) practice is renowned for its expertise in advising financial institutions and businesses on compliance with AML and economic sanctions laws and regulations, and defending those same clients from AML and sanctions enforcement investigations.

From the Derivatives Practice Group: This week, both the CFTC and SEC were very active in issuing guidance and advisories and Commissioner Kristin N. Johnson announced that she intends to step down from the CFTC.

New Developments

  • CFTC Staff Issues Advisory on Market Volatility Controls. On May 22, the CFTC issued a staff advisory reminding designated contract markets and derivatives clearing organizations of certain core principles and regulatory obligations under the Commodity Exchange Act and CFTC regulations related to controls designed to address market volatility. [NEW]
  • Commissioner Kristin N. Johnson Makes Statement on Departure from CFTC. On May 21, Commissioner Kristin N. Johnson announced that she intends to step down from the Commission later this year. [NEW]
  • CFTC Staff Issues Interpretation Regarding Certain Cross-Border Definitions. On May 21, the CFTC issued an interpretative letter confirming the application of certain cross-border definitions. The letter pertains to SCB Limited, an offshore crypto proprietary trading entity affiliated with Susquehanna, and confirms that SCB is not and will not qualify as a US person for the purposes of CFTC regulations concerning FCMs, FBOTs, and SEFs even if it were to (1) rely on US-located persons for trading/algorithm development, (2) license technology from a US-based affiliate, and (3) use US servers for its trading. Specifically, the interpretative letter confirms that SCB Limited is not a “person located in the United States” for purposes of the “foreign futures or foreign options customer” definition in Commission regulation 30.1(c); is not a “participant located in the United States” for purposes of Commission regulation 48.2(c); is a “foreign located person” for purposes of Commission regulation 3.10(c)(1)(ii); and is not a “U.S. person” as defined by Commission regulation 23.23(a) and the Commission’s 2013 Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations. [NEW]
  • CFTC Releases Procedures on Registered Non-U.S. Swap Entities Using Substituted Compliance. On May 20, the CFTC released procedures regarding CFTC-registered non-U.S. swap dealers or major swap participants relying on substituted compliance. The procedures establish how CFTC Divisions will address potential non-compliance with foreign law that has been found by the CFTC to be comparable in outcome to the Commodity Exchange Act or CFTC regulations pursuant to a substituted compliance order. [NEW]
  • SEC Names Katherine Reilly as Acting Inspector General. On May 19, the SEC announced the appointment of Katherine Reilly as the agency’s Acting Inspector General. Ms. Reilly is currently serving as a Deputy Inspector General at the SEC. She replaces Deborah Jeffrey, who has served as the SEC’s Inspector General since 2023 and is retiring. [NEW]
  • SEC’s Division of Trading and Markets Releases FAQ Relating to Crypto Asset Activities and Distributed Ledger Technology. On May 15, the SEC prepared responses to frequently asked questions relating to crypto asset activities and distributed ledger technology. The responses cover topics relating to broker-dealer financial responsibility and transfer agents. These responses represent the views of the staff of the Division of Trading and Markets. They are not a rule, regulation, or statement of the SEC. [NEW]
  • Commissioner Christy Goldsmith Romero Makes Statement on Departure from CFTC. On May 16, Commissioner Christy Goldsmith Romero announced that she intends to step down from the Commission and retire from federal service. Her final day at the Commission will be May 31.
  • Commissioner Summer K. Mersinger Makes Statement on Departure from CFTC. On May 14, Commissioner Mersinger announced that she intends to step down from her position as Commissioner at the CFTC at the end of the month, to pursue new opportunities.
  • CFTC Warns Public of Imposter Scam Targeting Fraud Victims. On May 14, the CFTC warned the public about a growing imposter scam involving individuals falsely claiming to represent the agency. According to the CFTC, scammers are contacting members of the public and claiming to represent the CFTC Office of Inspector General and promise to help financial fraud victims recover lost funds from foreign bank accounts. The CFTC Office of Inspector General stated that it will never contact individuals with offers to recover money lost to investment scams.
  • Acting Chairman Pham Makes Statement on Court Sanctions Against CFTC. On May 13, CFTC Acting Chairman Caroline D. Pham made a statement regarding the Federal District Court report and recommendations for sanctions against the CFTC for misconduct in CFTC v. Traders Global Group Inc, highlighting proactive efforts to overhaul the CFTC’s Division of Enforcement and reform culture and conduct, develop staff, and leverage expertise and reduce siloing.
  • CFTC Staff on Leave Pending Investigation. On May 5, pursuant to the President’s executive orders on lawful governance and accountability, the CFTC placed certain staff on administrative leave for potential violations of laws, government ethics requirements and professional rules of conduct. The CFTC stated it is committed to holding employees to the highest standards, as expected by American taxpayers. Investigations are currently ongoing into these matters and the CFTC has committed to provide updates as appropriate.

New Developments Outside the U.S.

  • ESMA Asks for Input on the Retail Investor Journey as Part of Simplification and Burden Reduction Efforts. On May 21, ESMA launched a Call for Evidence (“CfE”) on the retail investor journey under the Markets in Financial Instruments Directive 2014. The purpose of this CfE is to gather feedback from stakeholders to better understand how retail investors engage with investment services, and whether regulatory or non-regulatory barriers may be discouraging participation in capital markets. [NEW]
  • ESMA Delivers Technical Advice on Market Abuse and SME Growth Markets as Part of the Listing Act. On May 7, ESMA published its advice to the European Commission to support the Listing Act’s goals to simplify listing requirements, enhance access to public capital markets for EU companies, and improve market integrity. In relation to Market Abuse Regulation (“MAR”), the advice covers: protracted processes, identifying key moments for public disclosure; delayed public disclosure, listing situations where delays are not allowed; and Cross-Market Order Book Mechanism, indicating the methodology for the identification of trading venues with significant cross-border activity.
  • ESMA Consults on Rules for ESG Rating Providers. On May 2, ESMA published a Consultation Paper on draft Regulatory Technical Standards (“RTS”) under the Environmental, Social, and Governance (“ESG”) Rating Regulation. The draft RTS cover the following aspects that apply to ESG rating providers: the information that should be provided in the applications for authorization and recognition; the measures and safeguards that should be put in place to mitigate risks of conflicts of interest within ESG rating providers who carry out activities other than the provision of ESG ratings; the information that they should disclose to the public, rated items and issuers of rated items, as well as users of ESG ratings.

New Industry-Led Developments

  • ISDA Publishes ISDA SIMM® Methodology, Version 2.7+2412. On May 22, ISDA published updates to its Standard Initial Margin Model (“SIMM”) methodology that are based on the full recalibration of the model and marked the first SIMM version publication of the new semiannual calibration cycle in 2025. The effective date of July 12, 2025 means that ISDA SIMM users should use SIMM version 2.7+2412 to calculate the initial margin for close of business on Friday July 11, 2025 onwards. This means that the first day for exchange of initial margin calculated using SIMM version 2.7+2412 would be on Monday July 14, 2025. [NEW]
  • ISDA/SIFMA/SIFMA AMG Publish Joint Response to CFTC Request for Comment on 24-7 Trading. On May 21, ISDA, the Securities Industry and Financial Markets Association (“SIFMA”), and the SIFMA Asset Management Group (“SIFMA AMG”) jointly filed a comment letter in response to the CFTC’s request for comment on 24/7 trading and clearing. ISDA, SIFMA, and SIFMA AMG believe that the feasibility of both 24/7 trading and clearing needs to be evaluated holistically with an understanding of the interdependencies between market participants, trading venues, middleware and software providers, clearing systems, margining frameworks, payments systems, default mechanisms and adjacent markets. [NEW]
  • IOSCO Makes Statement on Combatting Online Harm and the Role of Platform Providers. On May 21, IOSCO reiterated its concern about risks associated with investment fraud orchestrated through online paid-for advertisements and user-generated content. IOSCO stated that regulators and platforms providers are strategically positioned to mitigate the potential investor harm arising from these risks and asks platform providers to enhance efforts, consistent with local law, aimed at reducing risk of pecuniary harm to investors, which also threatens public trust in the services provided by platform providers. [NEW]
  • IOSCO Releases Sustainable Bonds Report. On May 21, IOSCO published its Sustainable Bonds Report which identifies the key characteristics and trends tied to the sustainable bond market. IOSCO’s Report includes five key considerations which are designed to address market challenges, including enhancing investor protection, ensuring sustainable bond markets are operating in a fair and efficient way, and improving accessibility. [NEW]
  • IOSCO Publishes Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices. On May 19, IOSCO published the Final Reports on Finfluencers, Online Imitative Trading Practices and Digital Engagement Practices, as part of the third wave of its Roadmap for Retail Investor Online Safety. The Finfluencers Final Report explores the evolving landscape of finfluencers, the associated potential benefits and risks, and the current regulatory responses across jurisdictions. [NEW]
  • IOSCO Concludes its 50th Annual Meeting. On May 15, IOSCO concluded its 50th Annual Meeting, which was hosted by the Qatar Financial Markets Authority (“QFMA”) in Doha. IOSCO welcomed near 500 participants over the course of three days, followed by the QFMA public conference. The IOSCO Annual Meeting brings all 130 member jurisdictions together to discuss the most relevant issues and risks with regard to global financial markets, and how to assist regulators in implementing standards through capacity building.
  • ISDA Publishes Paper Exploring Use of Generative AI to Extract and Digitize CSA Clauses. On May 15, ISDA published a whitepaper that shows generative artificial intelligence can be used to accurately and reliably extract, interpret and digitize key legal clauses from ISDA’s credit support annexes, showing how this technology could increase efficiency, cut costs and reduce risks in derivatives processes that have traditionally been highly manual and resource intensive.
  • ISDA Margin Survey Shows Leading Derivatives Firms Collected $1.5 Trillion of Margin at Year-end 2024. On May 14, ISDA published its latest annual margin survey, which shows that initial margin (“IM”) and variation margin collected by leading derivatives market participants for their non-cleared derivatives exposures increased by 6.4% to $1.5 trillion at the end of 2024. The 32 responding firms included all 20 phase-one entities (the largest derivatives dealers subject to regulatory IM requirements in the first implementation phase), five of the six phase-two firms and seven of the eight phase-three entities.
  • ISDA Extends Digital Regulatory Reporting to Support Revised Canadian Reporting Rules. On May 13, ISDA extended its Digital Regulatory Reporting solution to cover new reporting rules in Canada and has made it compatible with a trade reporting messaging format used for North America reporting to maximize the benefit of adoption by those firms subject to the rules. The revisions are being implemented by the Canadian Securities Administrators and are scheduled for implementation on July 25, 2025.
  • ISDA Publishes Governance Committee Proposal for CDS Determinations Committees. On May 8, ISDA published a proposal for a new governance committee for the CDS Determinations Committees (“DCs”), the first in a series of amendments to improve the structure of the DCs and maintain their integrity in changing economic and market conditions. The governance committee would be responsible for taking market feedback and adopting rule changes affecting the structure and operations of the DCs to ensure their long-term viability and meet market expectations for efficiency and transparency in credit event determinations.
  • ISDA Presents Proposed Charter for the Credit Derivatives Governance Committee. On May 8, ISDA presented the proposed Charter for the Credit Derivatives Governance Committee and accompanying DC Rule changes to implement. Pursuant to the announcement made in 2024, an ISDA working group formed from ISDA’s Credit Steering Committee has worked on producing the Governance Committee solution. ISDA views the Governance Committee as the first step in implementing the other recommended changes from the Linklaters’ report as part of an independent review on the composition, functioning, governance and membership of the DCs.

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)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

This edition of Gibson Dunn’s Federal Circuit Update for April summarizes the current status of petitions pending before the Supreme Court and recent Federal Circuit decisions concerning provisional rights under 35 U.S.C. § 154(d), the Board’s findings regarding knowledge of a person of ordinary skill in the art, patent ineligibility under 35 U.S.C. § 101, and means-plus-function terms under 35 U.S.C. § 112 ¶ 6.

Federal Circuit News

Noteworthy Petitions for a Writ of Certiorari:

There were a few potentially impactful petitions filed before the Supreme Court in April 2025:

  • NexStep, Inc. v. Comcast Cable Communications, LLC (US No. 24-1137): The question presented is “Whether a patentee must in every case present ‘particularized testimony and linking argument’ to establish infringement under the doctrine of equivalents.”  The response is due June 5, 2025.
  • Purdue Pharma L.P. v. Accord Healthcare, Inc. (US No. 24-1132): The question presented is “Whether, as this Court has held, the objective indicia of non-obviousness should be analyzed flexibly to combat hindsight bias or instead subject to the Federal Circuit’s rigid rules restricting the inquiry.”  The response is due June 2, 2025.

We provide an update below of the petitions pending before the Supreme Court, which were summarized in our March 2025 update:

  • The Court will consider the petition in Converter Manufacturing, LLC v. Tekni-Plex, Inc. (US No. 24-866) at its May 22, 2025 conference.
  • The Court denied the petitions in Brumfield v. IBG LLC, et al. (US No. 24-764) and Celanese International Corp. v. International Trade Commission (US No. 24-635).

Upcoming Oral Argument Calendar

The list of upcoming arguments at the Federal Circuit is available on the court’s website.

Key Case Summaries (April 2025)

In re Forest, No. 23-1178 (Fed. Cir. April 3, 2025):  Mr. Forest submitted a patent application titled “Apparatus for Selecting from a Touch Screen” on December 27, 2016.  The application was rejected by the examiner in part under obviousness and nonstatutory double patenting grounds and affirmed by the Patent Trial and Appeal Board (Board), which Mr. Forest now appeals.  The application claims priority to another application filed on March 27, 1995, meaning that if the 2016 application were to issue as a patent, it would have an expiration date in 2015.  The United States Patent and Trademark Office (PTO) therefore contends that Mr. Forest has no personal stake in the appeal because he cannot be granted any enforceable rights by a patent grant with zero term.  Mr. Forest argues that he would acquire “provisional rights” under 35 U.S.C. § 154(d) if the PTO issues him an expired patent.

The Federal Circuit (Chen, J., joined by Taranto and Schall, JJ.) dismissed the appeal.  The Federal Circuit held that provisional rights, which are “provisional,” means they are “temporary” and must be replaced by the statutory exclusionary rights, which runs from the date of issuance to 20 years after the priority date.  Thus, a patent is only granted exclusionary rights if it issues before its expiration date.  Based on this, the Court reasoned that provisional rights must therefore precede exclusionary rights, which means that provisional rights can only be granted to a patent that issues with exclusionary rights.  As a result, even if Mr. Forest were granted a patent on the 2016 application, it would not lead to a conferral of provisional rights, because the patent would have expired before it issued, meaning Mr. Forest would receive no exclusionary rights.

Sage Products, LLC v. Stewart, No. 23-1603, 23-1604 (Fed. Cir. Apr. 15, 2025): Sage owns two patents directed to a sterilized chlorhexidine product in a package, such as an applicator filled with an antiseptic composition for disinfecting skin.  Becton, Dickinson and Co. (BD) petitioned for inter partes review (IPR) of certain claims of Sage’s patents and the Board concluded that the challenged claims were unpatentable in part because a person of skilled in the art would have found the prior art’s disclosure of “sterile applicators” taught the “sterilized chlorhexidine product” claimed.

The Federal Circuit (Stark, J., joined by Reyna, J. and Cunningham, J.) affirmed.  The Court held that the Board’s finding that a person of skill in the art would have understood the term “sterile” as used in the prior art (a publication from the United Kingdom’s (UK) health agency) to meet the claim term “sterilized” under the Board’s construction was supported by substantial evidence.  The Court found no reversible error in the Board’s finding that a skilled artisan would know about the differing regulatory requirements in the United States and the UK, including recognizing that satisfying the UK regulatory standards for “sterile” would satisfy the challenged claims’ requirements for “sterilized” items.

Recentive Analytics, Inc. v. Fox Corp., No. 23-2437 (Fed. Cir. April 18, 2025):  Recentive owns several patents directed to methods for generating optimized television broadcast schedules and network maps using machine learning.  Specifically, the patents aimed to improve television scheduling for live events and to allocate network content across different geographic areas.  The claims described the use of machine learning to dynamically predict optimal scheduling and map allocation, allegedly proposing an innovative use of artificial intelligence (AI) in the broadcasting industry.  Fox moved to dismiss on the grounds that the patent claims were ineligible under 35 U.S.C. §101, and the district court granted the motion. The court held that the claims were directed to abstract ideas of producing network maps and event schedules using generic mathematical techniques, and the claims lacked an inventive concept because they involved only routine applications of machine learning technology using generic and conventional computing devices.

The Federal Circuit (Dyk, J., joined by Prost and Goldberg (district judge sitting by designation), JJ.) affirmed.  At Alice Step One, the Court held that the claims were directed to abstract ideas—specifically, the use of machine learning to television broadcast scheduling and network map allocation.  At Alice Step Two, the Court held that the claims merely applied generic machine learning techniques to a new field, and that the use of conventional technology did not somehow transform the claimed abstract idea into a patent-eligible invention.  The Court also noted that although machine learning is a rapidly advancing field, simply applying machine learning to specific tasks, without further innovation, does not satisfy the statutory requirements for patent eligibility.

Fintiv, Inc. v. PayPal Holdings, Inc., No. 23-2312 (Fed. Cir. Apr. 30, 2025):  Fintiv sued PayPal for infringement of patents related to a cloud-based transaction system.  During claim construction proceedings before the district court, PayPal argued that the term “payment handler” is a means-plus-function term subject to 35 U.S.C. § 112 ¶ 6 and was indefinite for failing to disclose adequate corresponding structure.

The Federal Circuit (Prost, J., joined by Taranto and Stark, JJ.) affirmed.  The Court first determined that while the payment-handler terms did not use the word “means,” PayPal overcame the presumption that § 112 ¶ 6 does not apply because the payment-handler terms recite function without reciting sufficient structure for performing that function.  The Court also agreed with the district court that “handler” alone did not provide sufficient structure.  The Court then looked to whether there was corresponding structure disclosed in the specification or an algorithm to achieve the functionalities performed and concluded that there was not.  The Court thus concluded the term was indefinite.

The following Gibson Dunn lawyers assisted in preparing this update: Blaine Evanson, Jaysen Chung, Audrey Yang, Al Suarez, and Michelle Zhu.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Federal Circuit. Please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of the firm’s Appellate and Constitutional Law or Intellectual Property practice groups, or the following authors:

Blaine H. Evanson – Orange County (+1 949.451.3805, bevanson@gibsondunn.com)
Audrey Yang – Dallas (+1 214.698.3215, ayang@gibsondunn.com)

Appellate and Constitutional Law:
Thomas H. Dupree Jr. – Washington, D.C. (+1 202.955.8547, tdupree@gibsondunn.com)
Allyson N. Ho – Dallas (+1 214.698.3233, aho@gibsondunn.com)
Julian W. Poon – Los Angeles (+ 213.229.7758, jpoon@gibsondunn.com)

Intellectual Property:
Kate Dominguez – New York (+1 212.351.2338, kdominguez@gibsondunn.com)
Josh Krevitt – New York (+1 212.351.4000, jkrevitt@gibsondunn.com)
Jane M. Love, Ph.D. – New York (+1 212.351.3922, jlove@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Gibson Dunn announces release of the International Comparative Legal Guide – Anti- Money Laundering 2025

Gibson Dunn is pleased to announce with Global Legal Group the release of the International Comparative Legal Guide – Anti-Money Laundering 2025. Gibson Dunn partners Stephanie L. Brooker and M. Kendall Day are the Contributing Editors of the publication, which covers issues including criminal enforcement, regulatory and administrative enforcement, and requirements for financial institutions and other designated businesses. The Guide, comprised of 4 expert analysis chapters and 15 jurisdictions, is live and FREE to access HERE.

Ms. Brooker, Mr. Day, and of counsel Ella Capone and Sam Raymond jointly authored “Anti-Money Laundering Laws and Regulations Top Developments in Anti-Money Laundering Enforcement in 2024.”

In addition, Ms. Brooker, Mr. Day, Ms. Capone, and Mr. Raymond co-authored the jurisdiction chapter on “USA: Anti-Money Laundering 2025.”

You can view these informative and comprehensive chapters via the links below:

CLICK HERE to view Anti-Money Laundering Laws and Regulations Top Developments in Anti-Money Laundering Enforcement in 2024

CLICK HERE to view Anti-Money Laundering Laws and Regulations USA 2025

The following Gibson Dunn lawyers contributed to this publication: Stephanie Brooker, M. Kendall Day, Ella Capone, and Sam Raymond.

Gibson Dunn has deep experience with enforcement defense and compliance issues regarding the Bank Secrecy Act, AML laws, and sanctions laws and regulations.

About the Authors:

Stephanie Brooker, a partner in the Washington, D.C. office of Gibson Dunn, is Co-Chair of the firm’s Global White Collar Defense and Investigations, Anti-Money Laundering, and Financial Institutions Practice Groups. Stephanie served as a prosecutor at DOJ, including serving as Chief of the Asset Forfeiture and Money Laundering Section, investigating a broad range of white-collar and other federal criminal matters, and trying 32 criminal trials. She also served as the Director of the Enforcement Division and Chief of Staff at FinCEN, the lead U.S. anti-money laundering regulator and enforcement agency. Stephanie has been consistently recognized by Chambers USA for enforcement defense and BSA/AML compliance as an “excellent attorney,” who clients rely on for “important and complex” matters, and for providing “excellent service and terrific lawyering.” She has also been named a National Law Journal White Collar Trailblazer and a Global Investigations Review Top 100 Women in Investigations.

Kendall Day is a nationally recognized white-collar partner in the Washington, D.C. office of Gibson Dunn, where he is Co-Chair of Gibson Dunn’s Global Fintech and Digital Assets Practice Group, Co-Chair of the firm’s Financial Institutions Practice Group, co-leads the firm’s Anti-Money Laundering practice, and is a member of the White Collar Defense and Investigations and Crisis Management Practice Groups. Kendall is recognized as a leading White Collar Attorney in the District of Columbia by Chambers USA – America’s Leading Business Lawyers. Most recently, Kendall was recognized in Best Lawyers 2024 for white-collar criminal defense. Prior to joining Gibson Dunn, Kendall had a distinguished 15-year career as a white-collar prosecutor with DOJ, rising to the highest career position in DOJ’s Criminal Division as an Acting Deputy Assistant Attorney General (“DAAG”). As a DAAG, Kendall had responsibility for approximately 200 prosecutors and other professionals. Kendall also previously served as Chief and Principal Deputy Chief of the Money Laundering and Asset Recovery Section. In these various leadership positions, from 2013 until 2018, Kendall supervised investigations and prosecutions of many of the country’s most significant and high-profile cases involving allegations of corporate and financial misconduct. He also exercised nationwide supervisory authority over DOJ’s money laundering program, particularly any BSA and money-laundering charges, DPAs and non-prosecution agreements involving financial institutions.

Ella Alves Capone is Of Counsel in the Washington, D.C. office of Gibson Dunn, where she is a member of the White Collar Defense and Investigations, Fintech and Digital Assets, Financial Regulatory, International Trade Advisory and Enforcement, and Anti-Money Laundering practice groups. Her practice focuses on representing and advising multinational corporations and financial institutions in government and internal investigations and regulatory compliance matters involving Bank Secrecy Act, money laundering, sanctions, consumer protection, anti-corruption, fraud, and payments issues. She also regularly advises clients on the development and implementation of compliance programs and internal controls. Ella has been featured as a fintech “Rising Star” by Law360 and recognized for her White Collar Litigation and Investigations work in Lawdragon’s 500 X – The Next Generation publications. She has also been recognized by Super Lawyers as a White Collar Defense “Rising Star.”

Sam Raymond is Of Counsel in the New York office of Gibson Dunn and a member of the White Collar Defense and Investigations, Litigation, Anti-Money Laundering, Fintech and Digital Assets, and National Security Groups. As a former federal prosecutor, Sam has a broad-based government enforcement and investigations practice, with a specific focus on investigations and counseling related to anti-money laundering, the Bank Secrecy Act, and sanctions. Sam is an experienced investigator and trial lawyer. He served as an Assistant United States Attorney in the U.S. Attorney’s Office for the Southern District of New York from 2017 to 2024. In that role, he tried multiple cases to verdict and prosecuted a broad range of federal criminal violations, including as a lead prosecutor in one of the first cases ever charging individuals with violations of the Bank Secrecy Act.

Contact Information:

For assistance navigating these issues, please contact the the Gibson Dunn lawyer with whom you usually work, the leaders or members of the firm’s Anti-Money Laundering practice group, or the authors:

Stephanie Brooker – Washington, D.C. (+1 202.887.3502, sbrooker@gibsondunn.com)
M. Kendall Day – Washington, D.C. (+1 202.955.8220, kday@gibsondunn.com)
Ella Alves Capone – Washington, D.C. (+1 202.887.3511, ecapone@gibsondunn.com)
Sam Raymond – New York (+1 212.351.2499, sraymond@gibsondunn.com)

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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.

Partners Sanford Stark, Saul Mezei, and Terrell Ussing and associate Nicole Butze are the authors of the USA chapter of Lexology Panoramic’s Tax Controversy 2025 guide, which addresses key tax enforcement and controversy issues as well as recent developments and trends.

Partners Andrew Lance and James Hallowell shared their insights with Law360 on the complexities of religious real estate transactions in New York City. Drawing on their deep experience, they explained such deals must not only pass an extensive regulatory review but also demand an understanding of the missions and governance structures of the faith-based organizations involved.

Speaking to Thomson Reuters Regulatory Intelligence, partner Michelle Kirschner has supported the U.K. government’s plans to regulate the “Buy Now, Pay Later” (BNPL) sector and shift oversight to the Financial Conduct Authority (FCA). She noted that the 50-year-old Consumer Credit Act regime is long overdue for reform, particularly given evolving consumer behavior and technological change.

As the FCA prepares to consult on proposed rules, Michelle expects a more tailored approach. “Overall, it is likely that the new regime will feel familiar … but will be tailored to the specificities of the BNPL sector and should greatly increase the protections available to oftentimes the more vulnerable consumers.”

Michelle is Co-Chair of our Financial Regulatory Practice Group.

Frame-Wilson v. Amazon.com, Inc., No. 2:20-cv-00424 (W.D. Wa.) – Decided April 29, 2025

A court in the Western District of Washington has held that human error in coding a privileged document as non-privileged does not qualify as inadvertent production of privileged documents under Federal Rule of Evidence 502(b).

Background

Amazon.com, Inc. is the defendant in three putative antitrust class actions.  Amazon has produced almost 14 million documents, with the help of some 160 document reviewers.  After a dispute arose over Amazon’s privilege log, Amazon conducted a privilege re-review of over 100,000 documents.  During the course of that review, a reviewer designated three documents as not privileged or neglected to redact privileged information.

The plaintiffs then moved for class certification.  In their motion, they cited the three documents that had been marked not privileged or had been inadequately redacted.  Amazon quickly sought to claw back the documents, asking the plaintiffs to destroy them and to refile the class-certification motion without citing them.  The plaintiffs refused, arguing that Amazon had waived any claim of privilege by virtue of producing the documents.

Issue Presented

Is a waiver of privilege “intentional” under Federal Rule of Evidence 502 when a reviewer mistakenly codes a privileged document as not privileged?

Court’s Holding

Yes.  Absent extenuating circumstances, such as a technical glitch, the production of a privileged document is necessarily deliberate, and privilege is therefore waived, whenever a document was reviewed and designated “not privileged,” even if the document was initially designated privileged and was downgraded by mistake.  The Court reached this conclusion after determining that the parties’ standard discovery agreements were inadequate to trigger the benefits of Federal Rule of Evidence 502(d), which permit no-fault clawbacks and limit the scope of any waivers to one particular lawsuit.

What It Means

  • In complex cases, litigants often accidentally produce a handful of privileged documents and seek to claw them back.  Because cases routinely involve millions of documents, mistakes are inevitable, and litigants generally rely on the protections afforded by discovery agreements based on Rule 502.  But the court here rejected the possibility of human error, holding that the production of a document marked as non-privileged must mean that the party producing it intentionally waived any claim of privilege.
  • The district court’s rule would leave very little that would satisfy the “inadvertence” standard for avoiding a privilege waiver under Federal Rule of Evidence 502(b).  The court limited the standard to cover little more than technical glitches and freak accidents, rather than simple human error.
  • Other courts might conclude that a litigant’s reaction to the use of privileged information has some bearing on whether the disclosure of that information was inadvertent.  Here, Amazon immediately took steps to claw back its documents and has continued to pursue the issue even after the district court’s decision.  On May 14, Amazon challenged that decision by filing a petition for a writ of mandamus from the Ninth Circuit, and on May 19, the U.S. Chamber of Commerce filed an amicus brief in support of Amazon’s position.
  • If the Ninth Circuit declines to review the district court’s decision, litigants would be well advised to devote even more resources to ensuring that no privileged documents are produced.  It may not be enough, as it was not in this case, to rely on standard language invoking the protections of Federal Rule of Evidence 502(d), or on Federal Rule of Evidence 502(b)’s default protections against inadvertent disclosure.

The following Gibson Dunn lawyers prepared this update: Samuel Liversidge, Julian W. Poon, Daniel R. Adler, Matthew C. Parrott, and Brian W. Anderson.

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, any member of the firm’s Litigation practice group, or the following authors:

Samuel Liversidge – Los Angeles (+1 213.229.7420, sliversidge@gibsondunn.com)

Julian W. Poon – Los Angeles (+1 213.229.7758, jpoon@gibsondunn.com)

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