Insights

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.

On May 13, the House Ways and Means Committee passed “The One, Big Beautiful Bill.” This bill includes several provisions that, if enacted, will be important to businesses claiming research and development incentives:

On May 12, 2025, the Defense Counterintelligence and Security Agency (DCSA) released a new SF-328[1] consisting of 9 questions and 6 pages of instructions that detail the types of supporting documentation requested and identify information required by different responding entities (e.g., corporate, non-profit, academic, etc.). With this SF-328, DCSA is seeking certain frequently requested information and documents with initial SF-328 submissions rather than obtaining these documents through communications or revised SF-328 submissions. Additionally, when completed, the new SF-328 is considered Controlled Unclassified Information (CUI).

Assistant Attorney General Gail Slater of the Department of Justice, and Chairman Andrew Ferguson and Commissioner Mark Meador of the Federal Trade Commission, have each looked to the history of conservative voices to chart a path forward for antitrust enforcement in the second Trump Administration. Within the last three weeks, AAG Slater delivered remarks to the University of Notre Dame Law School, Chairman Ferguson delivered remarks at the International Competition Network Annual Conference, and Commissioner Meador shared his policy aims in an FTC paper and a speech to George Washington University. The enforcers emphasized the need for robust antitrust enforcement to break private monopolies and other anticompetitive arrangements. These enforcers appear to align on priorities, though differing slightly in methods, grounding their rationale in what they describe as traditional conservative values, while at the same time distancing themselves from previous Republican administrations which have emphasized anti-cartel policies and an otherwise preference for limited intervention in markets.

The Departments of Labor (“DOL”), Health and Human Services (“HHS”), and Treasury (the “Tri-Agencies”) have signaled that changes may be coming to the Mental Health Parity and Addiction Equity Act (“MHPAEA”) Final Rule issued on September 8, 2024. On May 9, 2025, the Tri-Agencies filed a Motion for Abeyance in a lawsuit brought by the ERISA Industry Committee (“ERIC”) challenging the 2024 final MHPAEA regulations in the United States District Court for the District of Columbia.[1] The Motion, which was granted by the Court, indicated that the Tri-Agencies intend to “reconsider” the Final Rule, including “whether to issue a notice of proposed rulemaking rescinding or modifying the Final Rule.” Yesterday, on May 15, 2025, the Tri-Agencies issued a notice of non-enforcement stating that they “will not enforce the 2024 Final Rule or otherwise pursue enforcement actions, based on a failure to comply that occurs prior to a final decision in the litigation, plus an additional 18 months.”

In a May 12, 2025 speech that signaled both a recalibration of and recommitment to prosecuting white-collar crime, Matthew R. Galeotti, the newly appointed Head of the Department of Justice’s Criminal Division, said that the Division is “turning a new page” and embracing an enforcement approach that aims to elevate efficiency, predictability, and fairness. The changes he outlined aim to incentivize self-reporting, narrow corporate monitorships, and refocus whistleblowers.

On May 7, 2025, the Defense Counterintelligence and Security Agency (DCSA or the “Agency”) announced the approval[1] of a revised and expanded Standard Form (SF) 328, Certificate Pertaining to Foreign Interests. Contractors and subcontractors engaged in work involving classified information use the SF-328 for disclosures relating to foreign ownership, control, or influence—and the form will soon be required for contractors and subcontractors in the unclassified space for certain covered contracts. Publication of the updated form has not yet occurred but is expected as soon as this weekend (May 10-11). New SF-328 forms will be required for initial and changed condition packages initiated on or after May 12 according to a National Industrial Security System (NISS) communication today.

On May 2, 2025, the Office of Federal Procurement Policy (“OFPP”) and the Federal Acquisition Regulatory Council (“FAR Council”) issued the first round of promised FAR rewrites—to Parts 1, 34, and 52—alongside a guidance memorandum for agencies subject to the FAR, Deviation Guidance to Support the Overhaul of the Federal Acquisition Regulation (“FAR Council Deviation Guidance”). The Office of Management and Budget also released a guidance memo, Overhauling the Federal Acquisition Regulation (“OMB Guidance”), that addresses the proposed implementation roadmap for the FAR overhaul. These initial FAR revisions follow the April 15, 2025 Executive Order (“EO”), Restoring Common Sense to Federal Procurement, which we previously reported on here.

The Inflation Reduction Act (“IRA”) and Infrastructure Investment and Jobs Act (“IIJA”) appropriated hundreds of billions of dollars in grants, loans, and other funding to facilitate clean energy and infrastructure deployment, advance Environmental Justice policy objectives, and address climate change concerns. While many companies, non-profits, and other recipients have reaped the benefits of those programs, they may also now be exposed to increased risks from Congressional investigations; enforcement actions; inspector general reviews; terminations for alleged waste, fraud, and abuse; and in extreme instances, potential exposure to criminal liability.

On April 17, 2025, Arkansas recently became the first state to enact broad restrictions on pharmacy benefit managers (“PBMs”) owning retail pharmacies within the state.

Two bills currently making their way through the California Legislature could, if passed, have far-reaching implications for how companies doing business in California price their goods and services. California Assembly Bill 325 (Aguiar-Curry) and Senate Bill 384 (Wahab), as drafted, seek broad prohibitions against the use, distribution of, and inputs into algorithmic pricing and supply software, even where there is no coordination among competitors on the use of such software or the setting of prices. Their enactment would reach every business that uses software applications to develop pricing, supply levels and other commercial terms in California. Crowell & Moring represents the California Chamber of Commerce (“CalChamber”) in monitoring, analyzing and responding to the proposed bills.

Looking back at 2024, manufacturers were extremely busy navigating a high number of recalled products and corresponding litigation. A number of these 2024 litigation and class action trends appear to be carrying over into 2025.

In a landmark verdict on April 14, 2025, the U.S. Department of Justice Antitrust Division notched its first-ever jury trial conviction for criminal wage-fixing under the Sherman Act in United States v. Eduardo Lopez in the District of Nevada. A home health care staffing executive, Eduardo (“Eddie”) Lopez, was found guilty of (1) conspiring with several competing home healthcare staffing agencies to fix the wages of home health nurses in the Las Vegas area, and (2) defrauding the unwitting buyer of his agency by concealing the then-ongoing antitrust investigation into nurse wage and hiring practices. It is worth noting, however, that while the Lopez conviction is a significant milestone for the DOJ’s campaign into labor antitrust violations, wage-fixing cases may be more straightforward to prosecute than no-poach agreements, where the DOJ still has not prevailed before a jury. This victory nonetheless affirms the DOJ’s ability to criminally prosecute labor market collusion as a criminal offense after numerous failed attempts, signaling the prudence of further caution for companies and individuals to mitigate risk in labor antitrust markets.

Will the Supreme Court review the Ninth Circuit’s unique Server Test for online copyright infringement? After the Ninth Circuit recently affirmed the Server Test, a photographer and copyright owner has requested certiorari. Petitioner-Plaintiff, Elliot McGucken, is a landscape photographer. Respondent-Defendant, Valnet, Inc., is the owner of a travel website located at “www.thetravel.com.” McGucken sued Valnet for copyright infringement when Valnet embedded on its site a number of links to McGucken’s Instagram posts. The district court, bound by the Ninth Circuit’s en banc decision in Perfect 10, granted Defendant’s motion to dismiss, finding that the Server Test foreclosed McGucken’s direct infringement claim as a matter of law, because Valnet linked to the images and did not store them on its own servers. The Ninth Circuit affirmed in a panel decision. McGucken now requests the Supreme Court to review the validity of the Server Test, which is unique to the Ninth Circuit.

Foreign Corrupt Practices Act (“FCPA”) enforcement has been fairly predictable for many years as the Fraud Section of the Department of Justice (“DOJ”) has maintained exclusive authority over investigating claims and bringing enforcement actions in federal courts across the country. President Trump’s recent pause on FCPA enforcement, the first of its kind since the statute was passed in 1977, has created significant uncertainty for individuals and businesses operating internationally regarding the future of FCPA enforcement. While DOJ is in the process of assessing what the future of FCPA enforcement, state attorneys general are stepping in. On April 2, California Attorney General Rob Bonta issued a Legal Advisory (the “Advisory”) to California businesses explaining that violations of the FCPA are actionable under California’s Unfair Competition Law (UCL). The announcement signals a shift in FCPA enforcement where states may take the lead and pursue FCPA enforcement through their state unfair competition laws.

On March 20, 2025, President Trump signed an Executive Order titled “Improving Education Outcomes by Empowering Parents, States, and Communities”.