ARTICLE / US POLICY
April 29, 2025
Read time: 3 min
Media reports about the Trump administration’s desire to revoke the tax-exempt status of prominent charitable organizations recently jolted the United States’s nonprofit community with anxiety over the impact potential changes to exemption standards could have on the financial stability and operational effectiveness of these organizations. While the Trump administration stated on April 22, 2025, that no executive orders concerning exemption standards are “being drafted or considered at this time,” many nonprofit hospitals, academic medical centers, and other charitable organizations are still analyzing the effect that existing executive orders have on the services and programs they provide.
Existing executive orders focusing on diversity, equity, and inclusion (DEI) programs; gender-affirming care humanitarian programs; and other activities each contain language that suggest organizations that fail to comply fully with the administration policies expressed by these executive orders risk heightened scrutiny from the Internal Revenue Service (IRS) or others regarding their exempt status.
This guide examines these existing executive orders and their relationship with IRS precedent governing charitable status through a series of frequently asked questions (FAQs). These FAQs accomplish the following:
- Identify existing executive orders that may affect the activities of charitable organizations
- Describe how charitable organizations might navigate the current environment
- Explore IRS precedent on how public policy influences the definition of “charitable” for tax purposes
- Consider how illegal activities may affect charitable status
- Summarize how a charitable organization can lose its tax-exempt status and the process that the IRS must follow
- Offer considerations for questions charitable organization leaders should ask as they prepare for potential scrutiny over compliance with executive orders.
FAQs Preview
Are all nonprofit organizations exempt from federal taxation?
No. Labeling an organization as “nonprofit” refers to its status under state corporate law, such as a nonprofit corporation. Not all nonprofit organizations qualify for tax-exempt status. Instead, a nonprofit organization must satisfy strict criteria set forth in the Internal Revenue Code (Code) to be exempt from federal taxation.
Plus, more frequently asked questions:
- What executive orders potentially affect the activities of charitable organizations?
- How concerned should hospitals, health systems, and other 501(c)(3) entities be about the current environment?
- How could a charitable organization lose its tax-exempt status?
- Could the Trump administration redefine the standards for charitable organizations?
For more information, or if you have additional questions, please contact Travis Jackson or Robert C. Louthian, III.
Understanding and Navigating Compliance With NIH Grant DEI Policies
CLIENT ALERT / US POLICY
April 25, 2025
Read time: 2 min
On April 21, 2025, the National Institutes of Health (NIH) issued a notice regarding its policy to require all US grant recipients to certify that:
- They do not, and will not during the term of receiving funds from the NIH, operate any programs that advance or promote diversity, equity, and inclusion (DEI); diversity, equity, inclusion, and accessibility (DEIA); or discriminatory equity ideology (collectively, DEI) in violation of federal anti-discrimination law; and
- They do not engage in, and will not during the term of this award engage in, a discriminatory prohibited boycott.
This document is intended to help NIH grant recipients evaluate where any company policies and practices need to be changed prior to providing the above-referenced certification. But keep in mind that legal challenges are working their way through the federal courts of appeals circuits on whether these certification provisions of the executive orders are enforceable or violate the First and Fifth Amendments of the US Constitution.
DOJ Secures Its First-Ever Conviction in a Criminal Antitrust Labor Market Trial
CLIENT ALERT / US POLICY
April 23, 2025
Read time: 5 min
On April 14, 2025, a federal jury convicted an executive in a wage-fixing conspiracy under the Sherman Act. This marks the first time, after many tries, that the US Department of Justice (DOJ) has secured a conviction in a criminal antitrust case alleging labor market harms. This case, coupled with Federal Trade Commission (FTC) Chairman Andrew N. Ferguson’s February announcement of a Joint Labor Task Force, indicates that antitrust enforcement in labor markets will continue to be a significant focus under the Trump administration.
Why It Matters
The DOJ and FTC announced, in 2016 guidelines, that they would treat labor market wage-fixing and no-poach agreements as per se illegal and subject to criminal prosecution. Until now, the DOJ had failed to secure a conviction in any of its criminal prosecutions brought under these theories, including:
- United States v. DaVita Inc, Case No. 1:21-cr-00229 (D. Colo.): Acquittal
- United States v. Surgical Care Affiliates LLC, et al., Case No. 21-cr-00011 (N.D. Tex.): Voluntary dismissal of the indictment
- United States v. Patel, et al., Case No. 21-cr-00220 (D. Conn.): Judgement of acquittal
The continued focus on labor markets is broadly relevant, so all companies should ensure they review their antitrust compliance policies and procedures considering the DOJ’s and FTC’s 2025 guidelines to minimize their antitrust risk.
The Conviction
In United States v. Lopez, Case No. 2:23-cr-00055 (D. Nev.), a federal jury convicted a home health agency (HHA) executive of conspiring to fix the wages for home healthcare nurses in Las Vegas and for fraudulently failing to disclose the investigation during the sale of the company. This is the DOJ’s first successful criminal prosecution in a labor market antitrust case and indicates that labor markets will continue to be a key focus for antitrust regulators, with Assistant Attorney General for the Antitrust Division Gail Slater stating, “nurses here deserved better and, under President Trump’s leadership, they will be protected.”
From the tail end of the first Trump administration, through the Biden administration, and into President Trump’s second term, momentum for criminal antitrust enforcement in labor markets has been building, and there are indications that this will be a continued focus for the antitrust agencies. In 2016, the DOJ and the FTC released guidelines for human resources (HR) professionals that stated for the first time that the DOJ and FTC would treat “naked” wage-fixing and no-poach agreements among competing employers as per se illegal and subject to criminal prosecution. This was the first time the DOJ indicated to HR and legal professionals that labor market issues would be a potential focus of criminal antitrust enforcement.
After the release of these HR guidelines, the DOJ initiated investigations focused on alleged no-poach and nonsolicitation agreements. The federal enforcers tried unsuccessfully to secure convictions alleging wage-fixing and no-poach conduct, including in the healthcare space, such as the 2022 acquittal of DaVita.[1]
The jury conviction last week was the first such labor market conviction and also indicates the type of conduct juries may find warrants criminal liability. The DOJ brought the case after a grand jury indicted Eduardo “Eddie” Lopez, the owner of an HHA, in March 2023 and filed a superseding indictment in September 2023. The conduct at the heart of the conspiracy was a mutual agreement between competing HHAs to “stay within the same hourly rate.” In other words, the DOJ prosecuted wage-fixing, rather than only an alleged no-poach or nonsolicitation agreement. The indictment relied on “hot” text exchanges between executives of the several competing HHAs discussing their “agreed rates” for hiring nurses at their facilities.
The future of antitrust enforcement in labor markets was uncertain going into the second Trump administration, but it appears after three months of observation that the issue has staying power and consensus among current leadership at the antitrust enforcement agencies. In the waning days of the Biden administration, the DOJ and FTC announced new “Antitrust Guidelines for Business Activities Affecting Workers.” Because these guidelines, which replaced the 2016 guidelines, were released just days before President Trump’s inauguration, the future of enforcement of antitrust in labor markets was uncertain. However, Lopez’s conviction and subsequent statements from DOJ leadership make clear that labor market enforcement will stay on the DOJ’s criminal enforcement radar, with Assistant Attorney General Abigail A. Slater stating, “[w]age-fixing agreements are nakedly unlawful attempts at unjustly profiting off American workers … The Antitrust Division will zealously prosecute those who seek to unjustly profit off their employees.” This win also comes shortly after FTC Chairman Ferguson’s directive regarding the labor markets task force, where he instructed the constituent bureaus of the FTC to “form a Joint Labor Task Force,” responsible for investigating and prosecuting “deceptive, unfair, or anticompetitive labor market conduct.”
If you have questions about what this ruling could mean for your business, reach out to your regular McDermott lawyer or the authors of this article.
CMS Poised for Medicare, Medicaid Program Integrity Enforcement Actions
CLIENT ALERT / US POLICY
April 15, 2025
Read time: 7 min
The Trump administration and 119th Congress are preparing to reduce federal expenditures by targeting Medicare and Medicaid fraud, waste, and abuse. Medicare enrollment revocations, Medicaid enrollment terminations, and extrapolated overpayments resulting from program integrity concerns can have devastating effects on providers. Providers and investors should be aware of preventative measures and appeal strategies to mitigate the anticipated increase in provider enrollment actions and reimbursement audits in the coming months and years.
Background
The US Department of Health and Human Services estimates that Medicare overpaid fee-for-service providers $32 billion and Medicaid overpaid providers $31 billion in 2024. Only a fraction of these estimated improper payments were recovered, and these estimates do not include all fraudulently received payments. Between October 2020 and September 2023, the Centers for Medicare & Medicaid Services (CMS) revoked the Medicare billing privileges of almost 8,500 providers, preventing them from participating in the Medicare program for one to 10 years. Medicare revocations often cause providers to be added to the “preclusion list,” which prevents them from receiving payment from Medicare Advantage plans or writing prescriptions for Part D reimbursable drugs. If a provider is revoked from Medicare, the provider must be revoked from all state Medicaid programs. A Medicare revocation may prevent the provider from being involved in any item or service reimbursed by Medicare or Medicaid.
In fiscal year 2023 alone, more than 2,500 providers were terminated from state Medicaid programs. Termination from one state Medicaid program requires the provider to be terminated from all other state Medicaid programs and may lead to Medicare revocation.
Owners, directors, officers, and managing employees of Medicare and Medicaid providers that are revoked from Medicare or terminated from Medicaid also may be subject to enforcement scrutiny because of their affiliation with the revoked or terminated provider. CMS uses extensive provider ownership and control reporting obligations to identify common ownership or control of providers subject to enforcement action.
Signs of Advances in Program Integrity
Reporter: “Can you guarantee that Medicare, Medicaid, Social Security will not be touched?”
President Trump: “I have said it so many times . . . We’re not going to touch it. Now, we are going to look for fraud.”
Cabinet Meeting, February 26, 2025
“The President said over and over and over, ‘We’re not going to touch Social Security, Medicare or Medicaid.’ We’ve made the same commitment. Now, that said, what we are going to do is go into those programs and carve out the fraud, waste and abuse, and find efficiencies.”
US House of Representatives Speaker Mike Johnson, February 26, 2025
Under some metrics, Medicare and Medicaid program integrity audits are a highly cost-effective strategy to reduce federal healthcare program expenditures. For example, prior reports have found that certain hospital admission audits have returned $24 – $29 to the Medicare trust fund for every $1 spent on audits.
The apparent cost effectiveness of program integrity audits can be amplified in cases where CMS alleges that a high level of payment error exists at the provider. In these cases, CMS can evaluate a small sample of the provider’s claims to determine whether any claims were arguably improperly paid, and if so, multiply (or “extrapolate”) CMS’ alleged “error rate” from the sample across the entire universe of that provider’s claims for a defined time period. Through extrapolation, CMS can turn an alleged overpayment of thousands of dollars into multiple millions of dollars. CMS’s decision to extrapolate is generally not appealable.
The CMS Center for Program Integrity conducts payment and compliance audits through contractors, including the Unified Program Integrity Contractors and the Recovery Audit Contractors. The Medicare Administrative Contractors (MACs) conduct “targeted probe and educate” audits focused on identifying overpayments and implement enrollment revocations. CMS contractors are private companies, their staff are not federal employees, and CMS selects the contractors through a competitive request for proposal process. All of these features, in addition to the cost-effective nature of auditing activities and accessibility of overpayment extrapolation, make the contractors an ideologically aligned mechanism for the Trump administration to reduce federal healthcare program expenditures by reducing fraud, waste, and abuse without cutting specific benefits or entitlements.
Program Integrity Audit Response
Robust compliance programs are the foundation for preventing and defending potential Medicare or Medicaid program integrity audits. Compliance programs should ensure that all claims submitted to third-party payors meet coverage requirements and are properly billed consistent with payor instructions. Internal and external auditing and monitoring of high-risk areas can prevent providers from engaging in anomalous billing practices that trigger an audit and can ensure the provider has sufficient medical record documentation to produce to an auditor. Auditing and monitoring for compliance with enrollment requirements are effective ways to prevent a potential enrollment revocation or termination.
Once a reimbursement audit begins, it is critical to work with experienced legal counsel to ensure that the appropriate provider documentation is reviewed and produced to the auditor and that any appropriate explanations or supplemental information are provided. Legal counsel should assist with strategies to ensure that the provider is best positioned for success based on applicable legal standards and interpretations. The documentation and communications exchanged with the auditor should deescalate the audit and form the basis for any subsequent administrative appeal.
If the audit results in a material finding that the provider believes was in error, it is important to appeal the finding and prevent cascading audits from other federal healthcare programs. Often, audits begin with a relatively small, low-value “probe” sample. If the probe sample reveals a high error rate that is not overturned, the provider is likely to be subject to further scrutiny and audits that may include a statistically valid sample and extrapolation. Sustained high error rates through appeal may require significant changes to the provider’s service offerings, revisions to documentation processes, and dedicated resources to support the services on a go-forward basis.
For all of these reasons, strong advocacy during a program integrity audit and administrative appeal of adverse enrollment actions or overpayments is key to ensuring the continuity of medically necessary services for federal healthcare program beneficiaries and participants.
Takeaways
- Medicare and Medicaid program integrity audits, extrapolated overpayments, and enrollment actions may significantly increase under the current administration.
- Program integrity reimbursement audits often begin with a low-value “probe” sample that progresses into a much larger statistically valid sample and extrapolated overpayment.
- Providers that do not successfully overturn overpayment findings on appeal may be required to review historic claims for overpayments and change their operations, documentation, or billing on a go-forward basis, adversely affecting revenue for the item or service line.
- Significant overpayment findings and enrollment enforcement actions at one provider may generate scrutiny for others, including providers with common ownership or control.
- Investors should closely review active program integrity audits to understand potential risk exposure (direct and indirect) and how that exposure may be mitigated by qualified legal counsel.
- Investors considering investing in a provider subject to Medicare or Medicaid audits should incorporate transaction terms that consider the potential exposure associated with potential enforcement actions and operational impacts.
Antitrust Under Trump: April 2025 Updates
ARTICLE / CLIENT ALERT / US POLICY
April 15, 2025
Read time: 8 min
As the Trump administration’s antitrust landscape continues to develop, companies should stay alert to key changes in merger filing requirements, remedy expectations, agency personnel, and more. Signs indicate we are entering a less-hostile merger environment and enforcement may be more pragmatic, but there may also be more scrutiny of transactions involving certain industries or with the potential to impact competition to hire workers.
Early engagement with counsel and thoughtful preparation of filings and remedy proposals will be crucial to navigating this evolving environment. Below is a high-level review of recent developments that could impact business strategy, dealmaking, and compliance.
Agency Personnel Shifts
Mark Meador Approved as FTC Commissioner
- On April 10, the US Senate confirmed the nomination of Mark Meador as a commissioner of the Federal Trade Commission (FTC), with a vote of 50-46.
Former FTC Commissioners Challenge Terminations, Face Implications of DC Circuit Decision
- Former Commissioners Alvaro Bedoya and Rebecca Slaughter filed complaints in the US District Court for the District of Columbia contesting their removal, relying on the US Supreme Court’s 1935 precedent in Humphrey’s Executor that protects “independent” regulatory agency leadership from presidential removal power.
- In a 2-1 vote, the US Court of Appeals for the District of Columbia Circuit allowed similar agency-related terminations of agency officials from the National Labor Relations Board and Merit Systems Protection Board.
- The majority stated that the agencies currently perform executive functions that the FTC did not at the time of Humphrey’s Executor and, therefore, officials may be lawfully removed by the president under his executive power. The decision outlines a relevant question for Bedoya’s and Slaughter’s cases: whether the 2025 FTC performs executive functions unlike the 1935 FTC.
Policy Priorities
New DOJ Partial to Populist Antitrust
- When asked about the Trump administration’s “America First” movement as it applies to antitrust, Assistant Attorney General Gail Slater indicated that the Antitrust Division of the Department of Justice (DOJ) would work to further the goals of the movement, including its focus on protecting average households and workers.
- The DOJ’s Principal Deputy Assistant Attorney General for Antitrust Roger Alford said the movement focuses on the concerns of the average American citizen and the industries in which they are actually spending their money, implying that those industries are a top priority for the Antitrust Division.
- Alford explained that America First industries of focus include housing, healthcare, insurance, transportation, food and groceries, and entertainment.
FTC Remains Concerned with Roll-Ups, Not Necessarily From Private Equity
- Jordan Andrew, deputy assistant director of the FTC’s Mergers I Division, said that he would be surprised if the agency only focused on private equity firms when looking at industry roll-ups and that he believed the agency would use every tool in its statutory toolkit to pursue cases against roll-ups.
DOJ Hosts Roundtables on Labor and Entertainment
- Assistant Attorney General Slater met with members of Teamsters unions on April 4 to discuss their personal experiences with non-compete agreements, no-poach agreements, and other unfair labor practices they have encountered.
- On the same day, Slater met with advocates, policymakers, and market participants in the music industry to discuss anticompetitive conduct in the entertainment industry, indicating that the DOJ will likely continue to look closely at this industry and pursue its suit against Live Nation.
HSR Updates
Agencies May Consider Revisions to HSR Rules
- The FTC and DOJ are open to considering changing the new Hart-Scott-Rodino (HSR) filing rules created by the previous administration, according to FTC Chair Andrew Ferguson.
- The agency heads may consider reforms to the rules if the information submitted by companies under the new rules is not useful to the agencies when reviewing transactions or if experience demonstrates that compliance is unjustifiably burdensome.
FTC Says More-Detailed HSR Form Can Prevent Second Requests
- David Shaw, principal deputy director of the Bureau of Competition, said that the granular information requested by the new HSR form can allow enforcers to evaluate a deal quickly and to move on when there are no anticompetitive concerns.
- Shaw explained that the information required in the new form is information the FTC sometimes would not receive until late in the initial 30-day HSR waiting period in filings made under the old form, and he stated that getting the information on day one allows the FTC to act more confidently.
- Shaw said that the Trump administration is looking for “off ramps at every step in the [HSR] process,” and indicated that parties should request early termination so that the FTC can move on when a deal raises no concerns.
Merger Remedies
DOJ Further Clarifies That Remedies Are One of Its Enforcement Tools, Calls for Remedy Proposals to Be Provided Alongside HSR Filings Where Appropriate
- DOJ Deputy Director of Civil Enforcement George Nierlich recommends that parties propose remedies when they file their HSR form in order to shorten the review period for transactions that raise competitive concerns.
- Nierlich advises that parties turn to the “fix-it first” approach in order to save time when they are aware of areas of potential concern and explains that the DOJ will review such remedy proposals in terms of whether they will succeed and ultimately fix the competitive concern.
DOJ Avoids Chilling Dealmaking
- Roger Alford has suggested that the Antitrust Division should avoid creating bottlenecks in the merger review process by bringing complaints unless the deals are “perfectly clean,” arguing that such an approach will ultimately chill dealmaking.
- Alford further advises parties to present deals that are as clean as possible and to bring forward proposals to resolve competitive issues, indicating that the DOJ is open to negotiating remedies if there are issues that can be resolved through a consent order.
Merging Parties Should Prove Fix Will Work, Says FTC
- Albert Teng, counsel to the director of the Bureau of Competition at the FTC, explained that because merging parties have greater information than the antitrust agencies around a proposed remedy and a unique knowledge of the market and competitors, they should bear the burden of proving that a proposed remedy will work.
- Teng further argued that because divestiture buyers may find an acquisition profitable, even if the business does not thrive, and because the risk of the remedy failing will be felt predominately by the public, they should bear the burden to demonstrate the remedy will be successful and preserve competition.
- These statements are in line with those from administrations that preceded President Biden.
FTC Open to Private Equity Divestiture Buyers
- During the American Bar Association 2025 Antitrust Law Section Spring Meeting, agency personnel noted that, although the FTC will evaluate each situation on a case-by-case basis, the agency is not ideologically opposed to considering private equity firms as divestiture buyers and would consider them valid options in a divestiture.
- Biden-era regulators expressed concern about the competitive ability of businesses divested to private equity, but the current administration does not appear to share the same reservations regarding private equity.
Other Developments
President Trump’s Economic Golden Age Requires Cutting Red Tape
- President Trump signed an executive order on April 9 requiring federal agencies to consult with FTC Chair Ferguson and US Attorney General Pam Bondi to identify and eliminate statutes and regulations that reduce competition, entrepreneurship, and innovation, or create monopolies or barriers to new market entry.
- In response, the FTC has launched a public inquiry into the impact of federal regulations that may be considered barriers to competition and to the American economy. Members of the public, such as workers, consumers, investors, and businesses, are encouraged to identify regulations with an anticompetitive effect.
- This order came soon after the DOJ launched an Anticompetitive Regulations Task Force on March 27, which will similarly focus on getting rid of burdensome state and federal laws and regulations that limit competition and economic growth.
- Assistant Attorney General Slater and the DOJ stated that the task force will seek to eliminate unnecessary barriers to competition, reduce compliance costs, and promote opportunities for small businesses and American families.
As the Trump administration’s approach to antitrust takes shape through political appointments, policy statements, speeches, and enforcement actions, McDermott’s antitrust team continues to track new developments. We are providing important updates on issues pertinent to clients. Stay tuned for more at-a-glance reviews of relevant policy as it is being created.
View our earlier insights on antitrust under the Trump administration.
Heard at the 2025 Antitrust Law Section Spring Meeting
ARTICLE / US POLICY
April 7, 2025
Read time: 11 min
The American Bar Association Antitrust Law Section’s annual Spring Meeting took place from April 2 to 5 in Washington, DC. The Spring Meeting features updates from federal, state, and international antitrust enforcers and extensive discussion of antitrust issues and enforcement priorities affecting various industries. This year, key leaders of the antitrust agencies spoke about antitrust enforcement at a concurrent program hosted by The Capitol Forum/FGS Global.
This client alert highlights key takeaways from the Spring Meeting and the Capitol Forum/FGS Global program.
Antitrust Enforcement Under the Trump Administration
- Federal Trade Commission (FTC) cases brought against Big Tech platforms are likely to continue under the Trump administration, although the reasons for continuing such cases and the alleged harms may shift. Former FTC Chair and Commissioner Maureen Ohlhausen emphasized that the new FTC majority may continue to focus on such cases due to the alleged harm that concentration in Big Tech has caused, such as reduced viewpoint diversity and suppression of conservative speech. Ohlhausen’s remarks align with comments made by new FTC and US Department of Justice (DOJ) leadership about increasing antitrust scrutiny on Big Tech.
- There are concerns about the rule of law and respect for the courts. The dismissal of the FTC’s two Democratic Commissioners, Rebecca Slaughter and Alvaro Bedoya, raised serious concerns at the Spring Meeting regarding the immediate and downstream effects of the potential overturn of Humphrey’s Executor, a landmark Supreme Court decision that established limits on the president’s power to remove officials from independent regulatory agencies like the FTC. If federal agencies are no longer seen as insulated from the political will of a president, they may lose the persuasiveness and deference they receive in court and from Americans nationwide. However, the FTC is not without political oversight in its current form, as it is subject to the authority of Congress, which controls its jurisdiction and existence. Despite this, panelists unanimously embraced the importance of the consensus-building nature of a bipartisan Commission.
- Antitrust enforcers expect a shift in attitude towards mergers. During the Capitol Forum/FGS Global program, FTC Chair Ferguson said he does not share the prior administration’s predisposition against mergers and believes long merger reviews under the prior administration led to uncertainty. He noted that the FTC retained the 2023 Merger Guidelines adopted under Biden to provide more certainty and clarity for the business community and to avoid politicizing the guidelines. The FTC will continue to scrutinize mergers, but according to Ferguson, the FTC will “get out of the way” more quickly for deals that do not harm competition.
- Section 2 Sherman Act enforcement is likely to persist. Many ongoing Section 2 cases are expected to keep the FTC and DOJ busy in the coming years. FTC Chair Ferguson is likely to increase the use of Section 2 in cases concerning alleged filtering of speech by Big Tech companies. However, the DOJ is unlikely to devote significant resources to criminal enforcement of Section 2.
- Robinson-Patman Act (RPA) enforcement is likely to continue at a steady pace. Panelists highlighted that Mark Meador, President Trump’s FTC commissioner nominee, has publicly stated that not enforcing the RPA at all “offends the rule of law.” Therefore, companies should not count on fewer RPA enforcement actions under the Trump administration. Similarly, in a dissenting statement from a recent enforcement action, FTC Chair Ferguson stated that the FTC “should focus its enforcement efforts on price discrimination in the heartland of the concern that animated the Act’s passage—large retailers with buying power.”
Antitrust Agencies’ Priorities and Focus
Merger Review and Remedies
- Agencies under the Trump administration are more likely to enter settlements and entertain fixes. At the Capitol Forum/FGS Global program, Assistant Attorney General Gail Slater, head of the DOJ’s Antitrust Division, said she wants to bring back merger remedies, especially structural remedies such as divestitures. FTC Chair Ferguson also noted that the government’s resources are limited, and he believes realistic remedies protect consumers, while refusing to engage with merging parties on remedies does not help consumers. In determining when to offer a fix, merging parties should consider the benefits of offering a remedy early to build credibility with enforcers and the court, prevent allegations of sandbagging, and maintain a consistent perspective on their proposed fix throughout the investigation. Roger Alford, a senior US DOJ official, highlighted the importance of “try[ing] to make [deals] as clean as possible” and noted that if the agencies can “fix a few pieces” to a merger, it allows the agency to move forward efficiently with a consent decree rather than engage in costly and protracted litigation.
- Non-price parameters weigh heavily in merger review. When evaluating a transaction, the antitrust agencies evaluate non-price parameters with equal attention and scrutiny as price-related aspects. Non-price parameters highlighted by the FTC, as well as enforcers from the European Commission, during the Spring Meeting included factors such as innovation, product features, product design, product quality, product safety, sustainability, better carbon emissions, labor, store conditions, and store experience, among others. The agencies made clear that innovation is not a defense to an anticompetitive transaction; they will conduct a balancing exercise between the anticompetitive harm and the benefits of the innovation. The FTC’s leaders disagreed with the assertion that non-price parameters are a mechanism to block a deal they oppose and explained that they merely follow the facts of the case and talk to customers and competitors to understand multiple facets of the industry.
- Healthcare mergers will receive continued and heightened scrutiny. Efficiencies arguments from merging parities in the healthcare industry are subject to scrutiny from regulators, who question whether mergers are the best method for achieving value-based care, even in cases of flailing firms. Commercial realities, including non-price concerns such as the impact on patient access and quality of care, are very important to regulators when reviewing healthcare mergers. State attorneys general indicated reliance on the involvement of several other state agencies and other sets of laws to regulate healthcare issues, such as offices of healthcare affordability to examine price issues, departments of insurance to understand the interplay of health providers and insurance companies, and even charitable trust laws to examine the transactions of nonprofit entities.
- Merger trials require fact-intensive efforts. When litigating antitrust agency challenges to mergers, it is important to make antitrust accessible to a district court judge who may not be as familiar with the practice. Judges urge practitioners to show their work – define all facts and arguments in detail and consider providing a glossary of straightforward definitions for antitrust terms, as well as terms related to the industry in which the merger is occurring. Judges also encourage practitioners to bridge the gaps in knowledge with use of expert witnesses. While experts know their field well, they can struggle to explain issues clearly to a judge. Therefore, practitioners should consider facilitating an informal conversation between the experts and the presiding judge to answer any questions and provide detailed executive summaries of expert reports using language appropriate for laypersons. In courts where antitrust case law is older, judges must work harder to figure out not only whether a transaction is anticompetitive but also what the appropriate standard of review is and where to draw the line. Judges highlighted that arguments in merger trials are most persuasive when parties recognize their weaknesses but still make a strong case for why their side should prevail.
State Enforcers Remain Active
- State attorneys general will continue to push the boundaries of the antitrust laws regardless of a change in the administration. Multiple state enforcers emphasized that they are unafraid to pursue antitrust actions even without the federal government. For example, state attorneys general are seeking to develop their state antitrust laws by bringing cases in state court. This is the case for states like New York, which has state antitrust laws based on federal antitrust laws, as well as states like Ohio and Texas, which have state antitrust laws that are not analogous to federal antitrust laws. State enforcers noted that bringing cases is often as important as winning them. Winning means protecting their citizens’ interests, while losing can identify a need for statutory change. States are frequently hiring outside counsel to assist with investigations and litigation.
- States to step in if federal merger enforcement subsides. Regarding the future of merger enforcement, Colorado Attorney General Phil Weiser emphasized that the states are ready to fill any gaps in federal enforcement, citing Colorado’s challenges (both jointly with federal agencies and independently) to many prominent mergers as evidence of the states’ capability and focus on antitrust. Elizabeth Odette, Minnesota’s assistant attorney general for antitrust and chair of the National Association of Attorneys General’s Antitrust Task Force, said parties should not overlook state enforcers and noted that state enforcers across the country are increasing their antitrust enforcement capabilities.
- Federal enforcement agencies may defer to state enforcers when the conduct is of a local nature. However, states may also, on their own, bring cases that are within the traditional purview of the federal enforcers. For example, the Colorado attorney general sued separately in state court to block a merger between two large national grocery retailers. Suing separately allows the state attorneys general to bring other claims not addressed by federal enforcers (e.g., an alleged no-poach agreement in the grocery retailer merger).
- An increase in civil cases and a decrease in criminal cases is generally expected. Due to the significant decline in DOJ criminal antitrust enforcement, states with robust antitrust enforcement programs, like California and New York, plan to continue bringing cases focused on bid rigging and price-fixing. However, most states do not have the resources or leniency programs to investigate national cartels.
Noncompetes
- The future of the FTC noncompete rule is uncertain. FTC Chair Ferguson believes the FTC should reconsider its defense of the FTC’s April 2024 noncompete rule, which, per an August 2024 court order, cannot be enforced and remains subject to appeal. The rule would have banned existing and new noncompete agreements between employers and employees. The FTC claims the noncompete ban would lead to more innovation, more startups, and higher earnings for American workers. If the FTC abandons its defense of the rule, other groups, such as the Small Business Majority, may move to intervene to continue the fight on appeal. If the rule is eventually found to be unlawful on appeal, however, there are still many states – such as California, Minnesota, and New York – that already have laws or are actively working on legislative efforts to prohibit noncompetes, with which employers will still need to comply.
- Despite his dissent, FTC Chair Ferguson still sees value in enforcing unlawful noncompetes. Chair Ferguson noted that while he dissented from the FTC’s noncompete rule banning employee noncompetes, he does plan to vigorously enforce unlawful noncompetes. He observed that the traditional “rule of reason” approach can distinguish between noncompetes that have benefits and those that harm competition. Ferguson believes this is an opportunity to protect American workers.
Consumer Protection
- Price transparency is at the center of consumer protection enforcement. With recent FTC rulemaking and priorities, the Commission is focusing on enforcing hidden and junk fees, advertisements for free goods or services, and bait-and-switch practices. Last week, the Trump administration strongly endorsed the new junk fees rule by issuing an executive order relating to price transparency throughout all stages of purchasing a ticket to promote competition law enforcement and better protect fans from exploitative ticket scalping.
- Deceptive and misleading influencer product endorsement and consumer reviews remain a high priority for enforcement. Following the 2023 updates to the FTC’s Endorsement Guides, the Commission issued an explicit ban on fake reviews. State enforcers are also cracking down on fake consumer reviews. If an individual advertises a product or leaves a review of a product, they must be an authentic user of the product. If someone portrays themselves as an expert, they must have a special kind of expertise to be able to comment on certain products or services. Additionally, a recent National Advertising Division decision held that a product demonstration constitutes an endorsement. If there is a material connection (i.e., the advertiser received free product, was paid, or has some other connection to the brand), the endorser posting the advertising content must include a disclosure indicating as such.
- The Trump administration will take a different approach to consumer protection but remain active in enforcement. FTC Chair Ferguson is very dedicated to the consumer protection agenda of the Commission, although we are likely to see more enforcement action and less rulemaking or rule-driven activity. Enforcement of consumer protection issues at the state level is also expected to increase.
Reproductive Health Under the Trump Administration So Far: What’s New and What’s Next
CLIENT ALERT / US POLICY
March 27, 2025
Read time: 11 min
Over the past two months, the second Trump administration has shifted federal policies and priorities regarding abortion, in vitro fertilization (IVF), contraception, and other reproductive-health-related matters – and it is expected to continue to do so. In addition to the federal policy agenda, many developments related to reproductive health likely will continue to occur at the state level. The Dobbs decision shifted policymaking in these areas toward the states, and lawmakers and advocates have expressed their intentions to either adhere to or protect against the new administration’s policies and agenda items. This article discusses some of the major recent trends in women’s health and reproductive health, and what is likely to come next under the new administration.
The Trump Administration Will Continue to Weaken Biden-Era Policies That Protect Reproductive Health
The Hyde Amendment
During its first month, the second Trump administration signed several executive orders (EOs) and otherwise signaled its approach to certain reproductive health measures that were previously in place. For instance, in the first week of his presidency, US President Donald Trump signed an EO entitled “Enforcing the Hyde Amendment,” which called for an end to federal funding for elective abortions and revoked two previous EOs that permitted such funding. The EO charged the Office of Management and Budget with providing guidance around implementing the mandate. While the EO was not a surprise, it referred to the Hyde Amendment and “similar laws,” leaving some ambiguity in its scope and the way in which it will be implemented in practice (e.g., it could be used to target federal funds for abortion and perhaps related services by other federal agencies, such as the US Departments of Defense, Justice, and State). In response to this EO, federal agencies could revoke Biden-era policies and reinstate or expand upon Trump administrative policies. Such efforts may include recission of Biden-era regulations that authorized travel for reproductive-health-related needs for servicemembers and their families and permitted abortion services through the US Department of Veterans Affairs.
The Comstock Act
Although we have not seen activity in this respect to date, the new administration will likely rescind the Comstock Act Memo, which was published by the US Department of Justice (DOJ) Office of Legal Counsel. This memo was issued in December 2022 by the Biden administration following the Dobbs decision. The Comstock Act is a federal criminal statute enacted in 1873 that prohibits interstate mailing of obscene writings and any “article or thing designed, adapted, or intended for producing abortion.” Violations of the Comstock Act are subject to fines or imprisonment. The Comstock Act Memo sets forth the opinion of the DOJ Office of Legal Counsel that the Comstock Act does not prohibit mailing abortion-inducing medication unless the sender explicitly intends for it to be used unlawfully. If the new administration revokes this memo or attempts to apply the Comstock Act to the mailing of abortion-inducing medication (and, perhaps, any abortion-inducing implements, which could have even wider-reaching implications) regardless of intent, it could become very difficult for patients to obtain abortion-inducing medication. Such actions also could lead to complications related to the provision of such medications via the mail (and potentially in person, depending on the attempted interpretation). At the time of publication, the DOJ website still included the Comstock Act Memo, noting that 18 U.S.C. § 1461 does not prohibit the mailing of abortion-inducing medication when the sender does not intend for the recipient to use the drugs unlawfully.
The 2024 HIPAA Final Rule on Access to Reproductive Health Records and Related State Activity
In 2024, the US Department of Health and Human Services Office for Civil Rights (OCR) published a Health Insurance Portability and Accountability Act (HIPAA) final rule to support reproductive healthcare privacy (2024 final rule). The 2024 final rule prohibits a covered entity or business associate from disclosing protected health information (PHI) for conducting an investigation into or imposing liability on any person for seeking, obtaining, providing, or facilitating reproductive healthcare where the reproductive healthcare is lawful. The 2024 final rule also prohibits disclosure of PHI to identify any person for the purpose of conducting an investigation or imposing liability. The enforcement mechanism of the 2024 final rule includes an attestation component under which a requesting party must certify that the use of the PHI is not prohibited when requested for health oversight activities, judicial or administrative proceedings, law enforcement purposes, or disclosures to coroners and medical examiners under 42 C.F.R. § 164.512. The Trump administration likely will not enforce (and may reverse) protections around reproductive health data under the 2024 final rule, which would leave a bigger gap for the states to potentially fill, as evidenced by the EO regarding enforcement of the Hyde Amendment and rollback of other Biden-era reproductive health protections.
In response to increased scrutiny of reproductive healthcare, several states have enacted laws protecting healthcare providers, patients, and others involved in providing or receiving reproductive healthcare. Although these laws vary from state to state, they generally prohibit disclosure of data and other information related to reproductive healthcare that was lawfully obtained by a patient and provided by a healthcare provider. These laws can provide a certain level of comfort to providers that provide care to patients who travel across state lines to receive care that may be unavailable to them in their home state but is accessible and lawfully provided in another state. States that do not have such laws may seek to enact similar protections under the new administration as federal protections become less certain, particularly if the layer of protection afforded by the 2024 final rule is revoked or otherwise diminished.
Abortion Policy Will Continue to Be Largely Dictated By States and May Expand Into New Areas of Focus
Following the Dobbs decision, many states quickly took action to enshrine abortion protections in their laws and constitutions. Some states, such as Michigan, moved to overturn old, unenforced abortion bans on their books. Michigan further implemented laws, executive actions, and eventually a ballot measure to amend its state constitution. This trend has continued; in the November 2024 presidential election, seven states passed ballot measures to protect abortion access. However, the 2024 election also marked the first three abortion protection ballot referendums that failed to pass. Voters in South Dakota and Nebraska rejected proposed constitutional amendments, and a measure in Florida received only 57% of the vote where a 60% majority was required.
In the years since Dobbs, new laws and court cases have largely sorted the states into two categories: states that are more protective and states that are more restrictive regarding abortion. However, the law remains unsettled in a few states, such as Georgia and Wisconsin, where pending court cases, legislative action, and gubernatorial executive action may result in different outcomes. In the 2024 election, Missouri voters passed a ballot initiative to overturn the state’s strict ban on abortion and enshrine reproductive rights in the state constitution, effectively switching the state from more restrictive to more protective. More constitutional ballot measures could come in states such as Pennsylvania, New Mexico, Virginia, and New Hampshire, where abortion rights are currently supported under state law but not enshrined in state constitutions. Abortion advocates may also focus on Iowa, South Carolina, and Florida, where recent court decisions have largely settled the law, but further litigation is possible. Restrictive states also continue to legislate additional restrictions on access to abortion.
The majority of states can be expected to continue on their current trajectory: more protective states may continue to enact abortion protections, and more restrictive states may continue to enforce existing bans and expand prohibitions. In 2025, the focus of both protective and restrictive laws likely will continue to expand. The initial wave of post-Dobbs policymaking primarily focused on a healthcare provider’s ability to perform an abortion and a patient’s right to receive an abortion. New laws and proposals now focus on topics such as assisting others in obtaining an abortion, telehealth prescribing of abortion medications, abortion funding, abortion rights of minors, and patient data privacy.
Trump administration policies and initiatives may impact more protective states’ abilities to provide abortion services. For instance, if the Comstock Act Memo is revoked, abortion-inducing medication may become scarce or difficult to obtain through the mail, even from a provider in a protective state to a patient in another protective state. If interpreted even more broadly by the administration, the Comstock Act could serve as a catalyst for a national abortion ban, which would almost certainly face legal challenges. While the Trump administration has not yet asked Congress for a national abortion ban, the EO that Trump signed recognizing two sexes includes personhood language regarding life beginning “at conception,” signaling that additional changes may be proposed at both the federal and state policy levels regarding fetal personhood and attendant rights. Such changes would likely result in legal challenges in federal and state courts.
IVF Services Will Continue to Expand But May Face Friction With Abortion Prohibitions and Certain Trump Administration Priorities
State abortion laws have somewhat solidified following Dobbs, but many laws remain unclear as to their impact on IVF providers. Many states have abortion prohibitions that predate IVF, some of which define “unborn child” from the moment of fertilization or conception. Other laws are ambiguous but contain language that arguably protects a fetus at any stage of development. Since Dobbs, state attorneys general in Arkansas, Oklahoma, Wisconsin, and other states have indicated that they will not pursue IVF providers using state abortion bans, and the Trump administration has issued an EO calling for expanded access to IVF. However, the state-level laws remain ambiguous, and there is a risk that courts may interpret such laws to apply to embryos or otherwise impact IVF access. Moreover, the EO raising the issue of fetal personhood may create friction for efforts to expand access to IVF.
In February 2024, the Alabama Supreme Court became the first state supreme court to definitively rule that “unborn children” includes cryogenically frozen IVF embryos. The court held an IVF clinic liable under the state’s wrongful death statute after an incident in which frozen IVF embryos were destroyed. The decision initially caused several IVF providers in the state to pause services until two weeks later, when the legislature passed a specific exception to the statute for IVF providers. Even though the status quo was quickly restored, both providers and patients were significantly impacted by the period of uncertainty. In 2025 and beyond, other states could face similar test cases. In response to public support for reproductive technology, some restrictive states have proposed legislation to address, for example, the use of assistive reproductive technology and selective reduction.
At the same time, insurance coverage for IVF and other fertility treatments has expanded and will likely continue to do so in 2025. Approximately 22 states now mandate that insurance plans provide some combination of fertility benefits, fertility preservation, and coverage for a number of IVF cycles. After July 1, 2025, all large employers in California must provide insurance coverage for fertility treatments, including coverage for unlimited embryo transfers and up to three retrievals. 2025 will also bring expanded IVF coverage options for federal employee insurance plans.
The Right to Contraception Will Remain Vulnerable to State Lawmaking and Court Challenges
Although the Dobbs majority opinion states that the “decision concerns the constitutional right to abortion and no other right,” and that “nothing in [the Dobbs] opinion should be understood to cast doubt on precedents that do not concern abortion,” doubt remains as to other women’s health rights. In his concurrence in Dobbs, Justice Clarence Thomas expressed interest in revisiting prior Supreme Court of the United States decisions upholding rights other than the right to abortion, such as the right to contraception upheld in Griswold v. Connecticut.
In response to the Thomas concurrence, the federal Right to Contraception Act was introduced. The act would have enshrined a person’s statutory right to contraception and a healthcare provider’s right to provide contraception. The act passed the US House of Representatives, but the US Senate version was unable to overcome a filibuster in June 2024. Federal efforts to protect the right to contraception are unlikely to pass in the new Congress.
Although federal action is unlikely, certain states have already protected the right to contraception under state law. Approximately 15 states and the District of Columbia currently have some form of protection for the right to contraception either by statute or under the respective state’s constitution. Under the new administration, state legislative action likely will increase with respect to the right to access contraception. Certain states with restrictive abortion policies, such as South Carolina, have proposed modifications to their abortion restrictions to explicitly protect the use of contraceptives.
What Steps Should Stakeholder Consider Taking?
Any company whose services touch on reproductive health or women’s health should engage in a risk assessment of their business and the ways in which the Trump administration may affect their ability to operate without complications. Although the first two months of EOs and other actions from the administration have not drastically altered the landscape for reproductive health across the country, access to reproductive and women’s health is likely to evolve over the next four years. We are closely monitoring these developments and will continue to forecast the ways in which this could impact stakeholders in the industry.
Antitrust Under Trump: March 2025 Updates
ARTICLE / CLIENT ALERT / US POLICY
March 26, 2025
Read time: 4 min
As the Trump administration’s approach to antitrust takes shape through political appointments, policy statements, speeches, and enforcement actions, our team is tracking the latest developments and will provide important updates on issues pertinent to clients. This is not intended to be a comprehensive review of specific actions or cases, but rather an at-a-glance review of relevant policy as it is being created.
View our initial client alert, “Antitrust Under Trump: Initial Policies and Actions.”
White House to Oversee Federal Trade Commission (FTC)
- To ensure the FTC aligns with administration goals, President Donald Trump has given the White House oversight over the FTC’s actions, regulations, and policies, as well as those of other “independent” government agencies.
- The FTC will now be required to establish a White House liaison and allow the White House to review proposed regulations and policies.
Trump Fires Two Democratic FTC Commissioners
- On March 18, 2025, President Trump fired the two Democratic commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, despite Supreme Court precedent that prevents the president from firing FTC commissioners over policy disagreements. Both commissioners plan to challenge the decision.
- The FTC will continue to operate with Chairman Andrew Ferguson, Commissioner Melissa Holyoak, and Mark Meador (assuming he is confirmed).
Gail Slater Confirmed to Lead US Department of Justice (DOJ) Antitrust Division
- The US Senate overwhelmingly approved the nomination of Gail Slater to be the Assistant Attorney General (AAG) of the DOJ on March 11, with a vote of 78 to 19.
Senate Commerce Committee Approves Mark Meador as FTC Commissioner
- On March 12, the US Senate Committee on Commerce, Science, and Transportation approved Mark Meador’s nomination to become an FTC commissioner with a vote of 20-8, sending the vote to the Senate floor.
- The president’s subsequent firing of Commissioners Slaughter and Bedoya may complicate the final Senate vote, but the FTC currently has a quorum of two Republicans, allowing it to act without additional commissioners in place.
Antitrust Division to Watch Costs, Leverage In-House Economists
- In a memo to staff on March 13, AAG Slater indicated that the Division will seek to cut costs by focusing its resources on markets that significantly impact consumers or are crucial to national security. The Division will review its use of expensive third-party economic consultants, often relied upon for trial testimony, and instead “utilize and maximize” the talents of its in-house economists.
Ferguson Pursues Litigation Against Big Tech While Streamlining Transactions
- During an interview, Chairman Ferguson explained that the FTC will continue to devote resources toward pending cases against Big Tech companies. Other priorities include healthcare and protecting labor markets.
- Ferguson also stated that while the American free market system depends on antitrust enforcement, if a transaction has no antitrust issue, the FTC will not try kill it. Instead, it will “get out of the way” and focus on deals that pose real antitrust threats to American consumers.
Holyoak Wants the FTC to Focus on Economics
- In a speech, Commissioner Holyoak criticized the Biden administration for forcing settlements, bringing cases built on “flimsy legal bases,” and downplaying economic factors in antitrust enforcement actions.
- Holyoak said that economics is critical to the FTC’s work and expects an increased emphasis on economics under Chairman Ferguson.
New Trump Administration Tariff Developments
CLIENT ALERT / US POLICY
March 21, 2025
Read time: 8 min
On February 1, 2025, using authority under the International Emergency Economic Powers Act (IEEPA) and other legal provisions, President Donald Trump signed three executive orders (EOs) imposing new tariffs on all goods from Canada, Mexico, and China effective February 4.
On February 3, the administration paused the planned tariffs on goods from Canada and Mexico until March 4, pending negotiations. In response, Canada also paused its planned retaliatory tariffs. After the new US tariffs took effect on March 4, the White House on March 5 announced that autos and auto parts from Canada and Mexico that meet the terms of the United States’ free trade agreement with those countries (USMCA) will be exempted from the new tariffs authorized by the February 1 EOs. The White House announced on March 6 that effective March 7, all goods from Mexico and Canada that qualify for USMCA preference will also be exempted from the 25% tariff under these EOs. On March 4, in response to the new US tariffs imposed on March 4, Canada implemented a first round of retaliatory tariffs on US goods shipped to Canada and threatened a larger round of retaliation after a public comment period ends. Canada has since stated that despite the March 5 and 6 amendments made by President Trump to the February 1 EOs, Canada will continue to impose its March 4 retaliatory measures but will pause its second round of retaliation.
The February 1 EO imposing 10% tariffs on all goods from China took effect on February 4, and China announced countermeasures effective February 10. On March 3, President Trump amended the February 1 EO to increase the tariff on all products from China from 10% to 20%, effective March 4. In response, China on March 4 announced additional retaliatory tariffs on US goods to take effect on March 10.
On February 10, President Trump signed two proclamations reinstating 25% tariffs on imports of steel and steel derivatives and increasing from 10% to 25% the tariff on imports of aluminum and aluminum derivatives. These 25% tariffs took effect on March 12. In response, Canada imposed further retaliatory tariffs on US goods. The European Union (EU) also announced retaliatory measures in response to the steel and aluminum tariffs but has delayed their implementation until mid-April.
On February 13, President Trump instructed the US government agencies responsible for trade to conduct a review and investigation to determine the appropriate “reciprocal” tariffs to apply to each trading partner that discriminates against US trading interests. He has said these new reciprocal tariff rates will be announced on April 2.
US Tariffs on China
Details
Under the February 1 EO, as amended by the March 3 EO, all US imports from China are currently subject to an additional 20% tariff. That 20% rate is on top of each entering good’s normal US tariff rate and all other applicable tariffs.
The 20% tariff is being applied over concerns about the adequacy of the measures being taken by China to control fentanyl exports and money laundering by transnational criminal gangs.
Retaliatory Measures by China
To date, China has issued two rounds of retaliatory tariffs. The first list of tariffs took effect on February 10, the second on March 10. China’s new retaliatory rates cover a wide array of US goods.
China has also responded by taking non-tariff punitive measures that impact US entities and US trade interests.
US Tariffs on Canada and Mexico
Details
The February 1 EOs imposing 25% tariffs on goods from Mexico and all goods from Canada except for energy resources, which are subject to a 10% tariff, took effect on March 4. The White House announced on March 5 that no duties will be applied under these EOs on autos and auto parts from Mexico and Canada that qualify for USMCA preference. It announced on March 6 that effective March 7, no duties will be applied under these EOs on all goods from Mexico and Canada that qualify for USMCA preference. Its March 6 EO amendment provides, however, that goods that do not qualify for USMCA preference will continue to be subject to the 25% tariff under the EOs, except in the case of non-qualifying potash from both countries, which will be subject to a 10% rate, and non-qualifying energy resources from Canada, which will also be subject to a 10% rate.
The February 1 EO states that the new tariffs are being applied due to concerns that Mexico and Canada have failed to take sufficient action to stem cross-border migration and drug trade. President Trump has reiterated that justification following implementation of these new rates and encouraged companies producing in both countries to move their production to the United States to avoid the new tariffs.
Retaliatory Measures by Canada and Mexico
On March 4, following implementation of the February 1 EO, Canada imposed its first round of retaliatory tariffs on $21 billion of US goods and opened a comment period on a list of additional US targeted goods totaling $83 billion. After President Trump greatly scaled back the February 1 EO on March 5 and 6, Canada announced that it was retaining its March 4 retaliatory tariffs but pausing further action on its second round of retaliatory measures.
Mexico has said that for now it will not proceed with retaliation against US goods.
Steel and Aluminum Tariffs
Details
On February 10, President Trump signed two proclamations closing existing loopholes and exemptions to the Section 232 tariffs on imports of steel and aluminum and derivatives. The proclamations terminated on March 12 the existing steel and aluminum “alternative arrangements” with Argentina, Australia, Brazil, Canada, the EU, Japan, Mexico, South Korea, Ukraine, and the United Kingdom. Effective March 12, all imports of steel products and covered derivatives once again became subject to the 25% Section 232 steel tariff originally authorized in 2018. Similarly, as of March 12, all imports of aluminum products and covered derivatives, regardless of whether they were covered by these alternative arrangements, became subject to a 25% rate. The 25% rate on aluminum imports materially increased the original 10% Section 232 aluminum tariff authorized in 2018.
Additionally, the proclamations terminated on March 12 the current steel and aluminum exclusions that had previously been granted under the Commerce Department’s exclusion procedures. The proclamations also terminated the steel and aluminum exclusion procedures previously administered by Commerce.
Responses from Impacted Trading Partners
After the new steel and aluminum tariffs took effect on March 12, Canada imposed a further round of retaliatory tariffs on an additional $21 billion worth of US goods. The EU also announced retaliatory tariffs on $28 billion worth of US goods but said on March 20 it would delay the implementation of those new rates until mid-April.
Mexico, the UK and other impacted trading partners have said they will await President Trump’s announcement of “reciprocal” tariffs before determining how to respond to the increased steel and aluminum tariffs.
“Reciprocal” Tariffs
Details
President Trump’s new “reciprocal” tariff rates for each trading partner will be calculated based on each trading partner’s tariff and non-tariff measures, unfair subsidies, intellectual property violations, investment restrictions, regulatory restrictions, services restrictions, technical barriers to trade, and other structural and/or sector-specific barriers used by that trading partner that burden or restrict US trade interests.
President Trump has stated that the new reciprocal rates will be announced on April 2.
Responses from Potentially Impacted Trading Partners
No trading partner has yet formally announced countermeasures, but the EU and Canada have informally stated their intention to retaliate if reciprocal tariffs are imposed on their goods.
“Industry” Tariffs
Details
In addition to the February 10 EO announcing new steel and aluminum tariffs, President Trump issued an EO on February 25 announcing a new Section 232 national security investigation on copper and derivative products. Public comments are due by April 1. This investigation is expected to lead to further US tariffs on copper and derivative products.
President Trump issued another EO on March 1 announcing a new Section 232 national security investigation on timber, lumber, and derivative products. Public comments are due by April 1. This investigation may lead to further tariffs on timber, lumber, and derivative products.
President Trump has also informally stated his intention to impose new tariffs on imports of autos, semiconductors, and pharmaceuticals but has not yet clarified how or when these new rates will be implemented.
Responses from Impacted Trading Partners
No trading partner has yet formally responded to these industry investigations and tariff threats.
Commercial Implications
Many clients engaged in global trade are incurring significantly increased costs, supply chain disruptions, and trade uncertainty.
Tariff Mitigation Steps
McDermott lawyers are advising clients on the evolving tariff outlook and counseling on commercial strategies to mitigate the new tariff impacts. Reach out to the authors or your regular McDermott lawyer to stay informed and seek legal counsel on how best to navigate these wide-reaching tariff challenges.
Ensuring Lawful DEI Practices: New EEOC and DOJ Guidelines for Employers
CLIENT ALERT / US POLICY
March 20, 2025
Read time: 3 min
On March 18, 2025, the Equal Employment Opportunity Commission (EEOC) and the US Department of Justice (DOJ) released two technical assistance documents to help inform what each agency views as “unlawful” discrimination related to diversity, equity, and inclusion (DEI) programs in the workplace.
Much of the EEOC’s and DOJ’s guidance on what they view as unlawful DEI programming was addressed in the key takeaways section of our prior publication, FAQs for Employers and Federal Contractors on Navigating the DEI Landscape. However, the technical assistance documents tacitly suggest the DOJ and EEOC will focus on two important areas in carrying out US President Donald Trump’s policy initiatives regarding DEI: (1) customer or client preferences and (2) anti-bias trainings.
Customer or Client Preferences
In the document What You Should Know About DEI-Related Discrimination at Work, the EEOC stated, “client or customer preference is not a defense to race or color discrimination.” This calls for employers to tread carefully when responding to customer requests for data regarding the demographics of those performing work on projects relating to the customers. And, of course, employers should not make work assignment decisions based on race, color, religion, sex, or national origin except in the rare circumstance that a bona fide occupational qualification (BFOQ) relates to one of those innate characteristics.
Anti-Bias Trainings
The EEOC and DOJ documents suggest that DEI-related trainings, such as anti-bias trainings, can give rise to a viable hostile work environment claim. During his first term, President Trump issued an executive order banning anti-bias trainings, but that executive order was struck down as an unconstitutional infringement on First Amendment protections. It appears the EEOC and DOJ may revisit that issue but in a more tempered approach to mitigate against a constitutional challenge.
Key Takeaways
The EEOC’s and DOJ’s technical assistance documents do not constitute binding authority because (1) the agencies did not issue the documents as part of the required rulemaking process and (2) the Supreme Court of the United States’ decision in Loper Bright Enterprises v. Raimondo held that federal courts are not required to defer to federal agency guidelines when adjudicating civil and criminal cases. Nonetheless, the technical assistance documents provide a view into how federal agencies intend to define unlawful DEI programming, and employers should use them as a resource when working with their legal counsel to audit existing DEI programs and policies.
