Insights

On August 7, 2025, the FAR Council issued a final rule amending FAR 52.204-7 to clarify that, effective immediately, an offeror’s failure to maintain continuous System for Award Management (SAM) registration between proposal submission and contract award does not render the offeror ineligible for award, so long as the offeror was registered in SAM at the time of proposal submission and is registered at the time of contract award. The final rule should address situations like TLS Joint Venture, LLC, B-422275, Apr. 1, 2024, 2024 CPD ¶ 74, where an offeror’s SAM registration lapsed for a single day between the proposal submission and award dates, and GAO found the offeror ineligible for award.

On July 24, the European Commission announced the imposition of new EU countermeasures in response to U.S. tariffs further to an agreement reached among EU Member States. These measures are adopted through Commission Implementing Regulation (EU) 2025/1564 and take the form of additional customs duties on U.S. products as well as export restrictions for certain EU products. In total, these measures concern about EUR 93 billion ($109 billion) worth of customs duties, the highest volume of bilateral trade caught by the EU so far. The EU countermeasures are set to enter into force as of August 7.

On July 23, 2025, the White House released Winning the Race: America’s AI Action Plan (“the Plan”) the Trump Administration’s most significant policy statement on artificial intelligence to date.

In April 2025, the IRS and the Department of Homeland Security (DHS) formalized a Memorandum of Understanding (MOU) enabling Immigration and Customs Enforcement (ICE) to create a system of information sharing between the agencies. Under the MOU, the IRS can share tax return information for non-tax criminal investigation purposes. More specifically, the MOU permits ICE to request sensitive tax information from the IRS for purposes of pursuing immigration related cases and deportations. Given the Trump administration’s focus on undocumented workers, the implications of the MOU likely will go even further as sharing this information will result in tax enforcement against employers of deported individuals.

On June 12, 2025, the Fifth Circuit ruled in Guardian Flight I[i] and Guardian Flight II[ii] that the No Surprises Act (“NSA”) does not confer a private right of action on parties to confirm an Independent Dispute Resolution (“IDR”) award in court. The Fifth Circuit is the first United States Court of Appeals to weigh in on the issue, which has divided some district courts. On July 11, 2025 the Fifth Circuit denied Appellant’s request for en banc review of the Court’s finding that the NSA lacks a private right of action.[iii] The panel’s ruling is now final and controlling precedent for the Fifth Circuit unless overturned by the Supreme Court.

On June 27, in Trump v. Casa, the Supreme Court held that federal courts lack equitable authority to issue “nationwide”—or, using the Court’s preferred parlance, “universal”—injunctions. Writing for the 6-3 majority, Justice Barrett explained that whether Congress vested the judiciary with such power depends on the existence of a founding-era antecedent to the practice of universal injunctions. Finding none, the Court held that universal injunctions fall outside a federal court’s equitable authority.

Briefing. The Trump administration continues to raise the stakes for importers and other actors in the international trade space. Bloomberg Law reports that the Department of Justice has tasked its MIMF (Market Integrity and Major Frauds) Unit with investigating fraud schemes by companies dodging U.S. tariffs. The MIMF Unit is already well-versed in financial fraud investigations, is set to grow significantly with the addition of prosecutors previously assigned to consumer protection matters, and now is shifting resources to tariff evasion cases.

On July 4, President Trump signed into law the “One Big Beautiful Bill Act” (“the Act”), or H.R. 1, which makes significant changes to federal healthcare programs, including Medicaid, Medicare, and Health Insurance Marketplaces. As proposed in previous versions of the Act, the Act includes cuts to the Medicaid program and imposes new requirements on beneficiaries, states, and healthcare providers.

In response to the recent U.S. strikes on Iranian nuclear facilities, the New York State Department of Health (“NYS DOH”) issued a cybersecurity advisory (the “Advisory”) that cautions healthcare providers, such as hospitals, treatment centers, and healthcare practitioners, of a high likelihood of increased cyberattacks and heightened cybersecurity threat activity.  The Advisory follows similar announcements and warnings from U.S. Department of Homeland Security (“DHS”), NYS Intelligence Center (NYSIC) and the Health-ISAC (Information Sharing and Analysis Center).

Twenty years ago, the Supreme Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005). In the Grokster case, the Supreme Court found that peer-to-peer file sharing companies could be liable for copyright infringement for their users’ deployment of file sharing software. There, the Court found that liability was warranted because the file sharing companies knew that its users were infringing, and the companies materially contributed to that infringement.

Over the past several months, hundreds of businesses across California have been served with Notices of Violation (NOVs) of California’s Proposition 65 (“Prop 65”) for issuing thermal receipts at the register and using thermal labels and stickers in their stores. The targeted businesses include large and small retailers, restaurants, banks, gas stations, and grocers.

On June 25, 2025, the Federal Trade Commission (FTC) announced the agenda for its July 9, 2025 Workshop exploring the characterization of gender-affirming health care as involving consumer deception or unfair trade practices. Health care providers, plans, and related businesses should anticipate that investigations and lawsuits related to gender-affirming care will follow under federal unfair competition law and, perhaps first, under state unfair trade practices laws.

Section 230 of the Communications Decency Act of 1996 has been credited with “creating” the internet by immunizing websites and platforms from lawsuits arising from the content posted by third-party users. Specifically, an internet company is not liable for publishing or posting content drafted by another person under conventional common law tort theories such as defamation or slander, however loathsome, violent or otherwise hateful that content is.  At the same time, Section 230 also immunizes a website or platform that engages in good-faith moderation of content it deems to violate its terms of use/conditions or community standards. 

On June 27, 2025, the Supreme Court upheld the constitutionality of the USPSTF and its role in identifying preventive services for coverage under the ACA in Kennedy v. Braidwood Management.[1]In the case, the Supreme Court considered whether the Secretary of HHS’s appointment of USPSTF members without the advice and consent of the Senate complied with the Appointments Clause in Article II of the United States Constitution. The Supreme Court found that USPSTF members were “inferior Officers” under the Appointments Clause who did not require Senate confirmation because the Secretary of HHS had the authority to remove USPSTF members at will and “to directly review and block Task Force recommendations before they take effect.” The Supreme Court therefore affirmed that the USPSTF as currently structured may legally recommend preventive services for coverage without cost-sharing requirements under the ACA.

On June 23, 2025, the Ninth Circuit issued a long-awaited decision in Island Industries Inc. v. Sigma Corp. affirming a $26M False Claims Act (“FCA”) judgment against the defendant importer.  Sigma had appealed the judgment after a jury found the company violated the FCA by failing to pay customs duties owed to U.S. Customs and Border Protection (“CBP”).  The Ninth Circuit’s decision addresses an important jurisdictional issue and illustrates the significant financial exposure importers can face under the FCA at a time of increased tariffs and enforcement by the government.  

On June 2, 2025, U.S. Customs and Border Protection (“CBP”) issued its first ever Withhold Release Order (“WRO”) and Finding Modifications Guide (“Guide” or “the Guide”). The Guide serves as a roadmap for importers facing a possible WRO or Finding due to allegations of forced labor in the supply chain of their goods imported into the U.S. It provides guidance on information to be included in a modification petition, identifies possible cases in which CBP might request additional information, and provides resources for importers facing a WRO or Finding.

On June 9, 2025, U.S. Department of Justice (“DOJ”) Deputy Attorney General Todd Blanche issued new Foreign Corrupt Practices Act (“FCPA”) enforcement guidelines (“the Guidelines”). DOJ issued the Guidelines in response to the Trump Administration’s February 2025 Executive Order (“EO”), which paused FCPA enforcement pending the issuance of new guidance from the Attorney General. The new Guidelines resolve lingering doubts about the future of FCPA enforcement under the Trump administration and provide important insights into the key factors DOJ will consider when deciding whether to pursue FCPA investigations or enforcement actions.

On June 5, 2025, the Supreme Court dismissed on procedural grounds the petition for writ of certiorari in Laboratory Corporation of America Holdings, dba Labcorp, v. Luke Davis, et al., No. 22-55873. The Supreme Court had granted the petition on the following question: “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” Justice Kavanaugh, writing in dissent, said he would have reached the merits and ruled that federal courts may not certify a damages class that includes uninjured members.

The Supreme Court last week blessed a broad reading of the federal wire fraud statute, resolving a circuit split over whether economic loss is an element of fraudulent inducement and bolstering the Government’s future enforcement of procurement fraud. In Kousisis et al. v. United States (unanimous in judgment), the Court upheld the conviction of a government contractor for falsely representing compliance with disadvantaged business enterprise (DBE) requirements in contracts awarded by the Pennsylvania Department of Transportation (PennDOT), despite completing the contracts to PennDOT’s satisfaction. The Court held that a material misrepresentation used to deceive someone into parting with money or property is sufficient for a federal wire fraud conviction, regardless of whether the victim suffered any economic loss.

On May 20, 2025, former Missouri congressman, Billy Long, appeared before the Senate Finance Committee for his confirmation hearing as President Donald Trump’s nominee for IRS Commissioner.  Senators questioned Long about his role in promoting questionable tax credits, including Employee Retention Tax Credits (“ERTC”) after leaving the House of Representatives in 2023.  Long also disclosed receiving financial compensation from these entities for his work promoting ERTC.  Given Long’s support for ERTC, there is speculation that the IRS could ease enforcement activity directed towards these credits.