Follow Up: White House Issues Order under Defense Production Act as Part of COVID Response
Client Alert | 2 min read | 03.27.20
On March 23, 2020, the President signed an “Executive Order on Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19” delegating additional authorities under the Defense Production Act of 1950 (“DPA”), which builds on Executive Order (EO) No. 13909, issued March 18, 2020, which we discussed here. The new EO delegated to the Secretary of Health and Human Services (“HHS”) the authority to prevent hoarding of health and medical resources necessary to respond to the spread of COVID-19 by: (1) prescribing conditions for accumulation of such resources; and (2) designating any material as scarce or threatened by excessive accumulation as to reasonable business, personal, or home consumption, or for purpose of resale at excessive prices (i.e., price gouging). These designations, in turn, trigger the prohibitions against hoarding. The EO also delegated the authority to gather information, such as information about how supplies of such resources are distributed throughout the nation, through use of investigations, records, reports, and subpoenas. The DPA and its implementing regulations and orders carry criminal penalties for noncompliance, as well as the possibility of injunctive relief in certain circumstances.
Subsequently, HHS issued a notice, effective March 25, designating fifteen materials as “scarce materials or threatened materials,” including items such as N-95 and other filtering facepiece respirators, ventilators, disinfecting devices, and a variety of health-related personal protective equipment (“PPE”). Under the notice, the term “materials” includes raw materials (including critical components), products, and items of supply; and any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items. The term “scarce materials or threatened materials” means health or medical resources, or any of their essential components, determined by the Secretary to be needed to respond to the spread of COVID-19 and which are, or are likely to be, in short supply or the supply of which would be threatened by hoarding. Designated scarce materials or threatened materials are subject to periodic review by the Secretary. The designation self-terminates in 120 days unless superseded by a subsequent notice.
Contacts
Insights
Client Alert | 5 min read | 12.12.25
Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality
On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.
Client Alert | 8 min read | 12.11.25
Director Squires Revamps the Workings of the U.S. Patent Office
Client Alert | 8 min read | 12.10.25
Creativity You Can Use: CJEU Clarifies Copyright for Applied Art
Client Alert | 4 min read | 12.10.25
Federal Court Strikes Down Interior Order Suspending Wind Energy Development
