In Case You Missed it (January 2025)
Bradley Arant Boult Cummings LLP
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Our attorneys regularly publish relevant legal and business articles, by way of our Bradley blog network, to help inform readers and keep you up to date on the latest business trends and issues. This newsletter serves as a space to revisit or discover blog posts you might have missed over the course of the last month.
Check Out Our Eye on Enforcement Blog!
Bradley’s Eye on Enforcement blog covers the latest trends in government investigations and enforcement activity. From compliance issues to civil and regulatory enforcement to white-collar criminal defense, EoE tracks the latest legal developments facing businesses and individuals who interact with the government.
Bradley’s?Government Enforcement and Investigations Practice Group?is pleased to present the?False Claims Act: 2024 Year in Review, our annual review of significant False Claims Act (FCA) cases, developments and trends.?
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IRA Update: Recent Regulations Potentially at Risk in Second Trump Administration
With the inauguration of President Donald Trump and the Republican Party taking control of both houses of Congress, the renewable energy industry is faced with great uncertainty, including the potential for immediate impacts on the regulatory environment based on recent executive action. Read more.
Investigations: Employers Can Avoid Getting in Their Own Way with Some Planning
At some point, every employer will need to investigate an employee’s complaint. An investigation is an important tool that employers can use to fix a workplace problem and minimize liability. Or, an investigation can create extra risk for employers over and above the risk of the original workplace issue. That extra risk arises when an employer makes mistakes, does not have or follow its own policies, or fails to follow through with an investigation. Read more.
New TCPA Consent Requirements Out the Window: What Businesses Need to Know
The landscape of prior express written consent under the Telephone Consumer Protection Act (TCPA) has undergone a significant shift over the past 13 months. In a December 2023 order, the Federal Communications Commission (FCC) introduced two key consent requirements to alter the TCPA, with these changes set to take effect on January 27, 2025. First, the proposed rule limited consent to a single identified seller, prohibiting the common practice of asking a consumer to provide a single form of consent to receive communications from multiple sellers. Second, the proposed rule required that calls be “logically and topically” associated with the original consent interaction. However, just a single business day before these new requirements were set to be enforced, the FCC postponed the effective date of the one-to-one consent, and a three-judge panel of circuit judges unanimously ruled that the FCC exceeded its statutory authority under the TCPA. Read more.
Allegations of Redlining and Discriminatory Practices at The Mortgage Firm
With changes in leadership eminent and changes in regulatory priorities likely to follow, the Department of Justice (DOJ) and the CFPB kicked off 2025 with a pair of significant fair lending actions. On January 7, 2025, the United States filed a complaint against The Mortgage Firm, Inc., alleging violations of the Equal Credit Opportunity Act (ECOA) and the Fair Housing Act (FHA) due to unlawful redlining in predominantly Black and Hispanic neighborhoods in the Miami-Fort Lauderdale-Pompano Beach area from 2016 through 2021. Read more.
Biden’s Executive Order on Project Labor Agreements Violates CICA
In a recent decision, the Court of Federal Claims (COFC) ruled on bid protests filed by 12 construction companies challenging the implementation of a February 4, 2022, Executive Order 14063 that mandated the use of project labor agreements (PLAs). FAR Council implemented EO 14063 in January 2024, and it was the first executive mandate to use PLAs for all large-scale government contracts (see FAR 22.503 (Jan. 2, 2024) and FAR 22.501 (Jan. 2, 2024)). The purpose of these PLAs is to limit the prime contractor to the use of union labor to perform the subject contract. EO 14063 defines “project labor agreement” as “a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).” Read more.
HHS’s Proposed Security Rule Updates Could Require Group Health Plan Document Changes and New Plan Sponsor Security Practices
Proposed regulations may require employers to invest additional resources to safeguard group health plan participants’ protected health information.
In this installment of our blog series on the U.S. Department of Health and Human Services’ (HHS) HIPAA Security Rule updates in its January 6 Notice of Proposed Rulemaking (NPRM), we will explore the impact the NPRM could have for sponsors of group health plans. Read more.?
CFPB Examinations Highlight Fair Lending Risks in Credit Scoring Models
Amid recent technological advances in artificial intelligence and machine learning, on January 17, 2025, the CFPB issued its Winter 2025 Supervisory Highlights: Advanced Technologies Special Edition. This edition of Supervisory Highlights delivers critical industry reminders regarding the balance between regulatory requirements and technological innovation. As an appropriate summation of the CFPB’s overarching worldview, the opening sentence of the Supervisory Highlights explains that “[t]here is no ‘advanced technology’ exception to Federal consumer financial laws.” Read more.
Maximizing Recovery on Construction Claims: Don’t Forget Bond Claims, Which Could Exceed the Underlying Claim!
As construction claim lawyers, we are always on the lookout for insurance policies or “bonds” that might satisfy our client’s claim. On federal projects, this includes performance and payment bonds known as Miller Act bonds.?These bonds, which take their name from the federal Miller Act that requires them on all federal contracts over $100,000, protect the government and subcontractors if the contractor defaults.?In that situation, subcontractors who are owed money can sue both the defaulting contractor and the insurance company or “surety” who issued the Miller Act payment bond.?The surety effectively “steps into the shoes” of the defaulting contractor and becomes liable for the contractor’s debt.?In some cases, the surety can actually become liable for more than the contractor’s debt.?Read more.
Never Get Out of This Maze? Or a Path Forward for Alabama’s Medical Cannabis Program?
I don’t know what it says about me that the great Trey Anastasio and Tom Marshall of Phish fame were able to encapsulate my feelings so neatly – and the feelings of so many participants in the Alabama Medical Cannabis licensing program – about where we stand. Read more.
Will New York’s New Flood Insurance Law Create a Coinsurance Problem for Lenders and Policyholders?
A law recently passed by the New York State Assembly and signed by Gov. Kathy Hochul puts significant limits on the flood insurance that lenders can require borrowers to purchase on loans secured by residential real property. Commentary in the weeks since the law went into effect has focused on potential conflicts between the law and the federal Flood Disaster Protection Act or the potential for loans and properties to be underinsured for flood. Another hidden problem may occur, however, if policyholders opt to purchase coverage for significantly less than the building replacement cost on a policy that includes a coinsurance penalty. Read more.
HIPAA Security Rule Updates: New Business for Business Associates
Bradley has launched a multipart blog series on the U.S. Department of Health and Human Services’ (HHS) proposed changes to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule, beginning last week with an overview. The Notice of Proposed Rulemaking (NPRM) published on January 6, 2025. This marks the first update since the HIPAA Security Rule’s original publication in 2003 and its last revision in 2013. In this weekly series, we will continue to explore the key changes and their implications and provide insights and takeaways for covered entities and their business associates under HIPAA. Read more.
New Jersey Appellate Court Rejects Bid Protest: Archeologist Not Required to Be Registered under Public Works Contractor Registration Act
We recently blogged about New Jersey’s bid protest requirements for procurements solicited under the New Jersey Division of Purchase and Property (DPP) here. As we noted, public procurements by local governmental authorities fall outside the jurisdiction of the DPP. A recent intermediate appellate court opinion from January 10, 2025, Anselmi & Decicco, Inc. v. J. Fletcher Creamer & Son, Inc., provides some additional guidance on how local bid protests are administered and reviewed. Read more.
What to Do if Your Government Contract Is Terminated per the New DEI Executive Order
On January 21, 2025, President Donald Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The executive order’s stated purpose is to end “illegal” diversity, equity, and inclusion (DEI) efforts. Read more.
Who Regulates Residential Mortgage Trigger Leads?
In a bit of a surprise development at the end of 2024, the United States Senate passed the Homebuyers Privacy Protection Act, which amends the Fair Credit Reporting Act (FCRA) to include specific restrictions on the use of trigger leads in the residential mortgage lending space. While industry groups applauded the Senate’s passage of the act, the United States House of Representatives has not passed corresponding legislation, so the act is not currently in effect. Regardless, the act draws scrutiny on what many view as an annoying and potentially abusive practice – mortgage lenders’ excessive use of trigger leads. Read more.
Will 2025 Continue Circuit Court Harmony in Nationwide Litigation Involving State Law Hemp Legislation, or Will?a Circuit Split Emerge?
You’ve probably seen the reports of the United States Fourth Circuit Court of Appeals’ January 7, 2025 opinion upholding a Virginia law that regulates consumable hemp products. I planned to put up a blog post soon after the opinion was handed down, and I will still summarize the holding here. But the delay in writing allowed me to take a step back (and another step back), and view this in proper perspective: 2025 is going to be a huge year in the state law hemp legislation vs. hemp industry Farm Bill disputes that have been simmering over the last couple of years. Let me explain how this will soon boil over. Read more.
Inflation Reduction Act Domestic Content Bonus Update: IRS Issues Updated Guidance with First Updated Elective Safe Harbor
On January 16, 2025, the IRS released Notice 2025-08, modifying its prior guidance issued as Notice 2023-38 and Notice 2024-41, for taxpayers seeking to qualify for the domestic content bonus tax credit amounts under the Inflation Reduction Act of 2022 (IRA). The IRA amended §§ 45 and 48 of the Internal Revenue Code and enacted §§ 45Y and 48E of the Internal Revenue Code to provide domestic content bonus tax credits for certain qualified energy facilities or projects. Read more.
Watch Out, Employers: Using Smart Devices in the Workplace May Not Be So Smart
What does the EEOC have to do with smart watches, rings, glasses, helmets and other devices that track bodily movement and other data? These devices, known as “wearables,” can track location, brain activity, heart rate, and other mental or physical information about the wearer, which has led some employers to require their employees to wear company-issued wearables. While the wearables may provide useful data, the EEOC recently warned employers to watch out for the dangers associated with them. A summary of the EEOC’s reported risks are identified below. You can find the full guidance here. Read more.
2024 False Claims Act Statistics Show More Cases Filed Than Ever Before
The Justice Department released its annual False Claims Act statistics on Wednesday, January 15, detailing the number of cases filed, recoveries made, and relators’ shares awarded in fiscal year 2024. The government recovered $2.9 billion dollars in 2024, with 57% of that total coming from healthcare cases, 3% from defense spending cases, and the remainder from other actions. Seventy-five percent of recoveries came from qui tam actions in which the government intervened and 17% came from cases initiated by the Justice Department, while qui tam actions where the government declined to intervene resulted in only 7% of the year’s recoveries. Read more.
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DOJ Reports Substantial Procurement Fraud Recoveries in FY 2024
The Department of Justice (DOJ) recently announced that it obtained more than $2.9 billion in False Claims Act (FCA) settlements and judgments in the fiscal year ending Sept. 30, 2024.?
DOJ reports that matters that involved the healthcare industry comprised the largest portion of these FCA recoveries in FY 2024, but that “procurement fraud” recoveries,?once again, were significant for DOJ this past year. Read more.
Introducing Bradley’s Series on HHS’s Proposed HIPAA Security Rule Updates
Bradley is launching a multipart blog series on the U.S. Department of Health and Human Services’ (HHS) proposed changes to strengthen cybersecurity protections for electronic protected health information (ePHI) regulated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Notice of Proposed Rulemaking (NPRM) was published on January 6, 2025 and applies to covered entities and their business associates under HIPAA. This proposal marks the first update since the HIPAA Security Rule’s original publication in 2003 and its last revision in 2013. The HHS Office for Civil Rights (OCR) will accept comments through March 7, 2025.
In this weekly series, we will explore the key changes and their implications and provide insights and takeaways on the following items. Read more.
New Year, New Leave Laws – Understanding State Leave Law Updates Effective January 1, 2025
When did you last look at your employee leave policies? As the calendar turns to a new year, new changes often arrive, and 2025 is no exception. Employers should take note of the recent updates to state leave laws that went into effect on January 1, 2025.
Here are some states have implemented new or expanded leave laws as of January 1, 2025. Read more.
Potential Impact of FHA’s Revised Defect Taxonomy on Mortgage Originators and Servicers
On January 7, 2025, the Federal Housing Administration (FHA) officially revised its Defect Taxonomy (Final Defect Taxonomy) with the publication of Mortgagee Letter (ML) 2025-01 and the related attachment detailing those changes. The changes are effective as of January 15, 2025, and will be implemented in Appendix 8.0 of FHA Handbook 4000.1 at a later date. Read more.
Practical Considerations for Navigating Tariff Risk on Construction Projects
As the second Trump administration begins next week, developers, contractors, subcontractors and suppliers are evaluating the extent of the construction industry’s international ties – and contractual exposure to potential tariff increases. While President-elect Trump has been forthright about his intent to impose and increase tariffs, he has not provided details about which products, goods, and countries may be affected. Read more.
Bid Protests in New Jersey
Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see our posts on “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” “Bid Protests in Massachusetts,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in New Jersey. Read more.
FTC’s “Click to Cancel” Rule to Simplify Subscription Cancellations Becomes Effective
The final text of the amended Negative Option Rule, featuring the new “Click to Cancel” program, goes into effect this week on Wednesday, January 15, 2025, and should become enforceable approximately four months later on Wednesday, May 14, 2025. The FTC believes that this rule will help the FTC get money back to people who are misled by sellers who don’t tell the truth or leave out necessary information, people who get billed when they didn’t agree to pay, and sellers who make it hard, or impossible, to cancel. According to FTC Commission Chair Lina M. Khan, “Too often, businesses make people jump through endless hoops just to cancel a subscription. The FTC’s rule will end these tricks and traps, saving Americans time and money. Nobody should be stuck paying for a service they no longer want.” Read more.
How Will the Cannabis World Look When Marijuana Is Rescheduled?
A few weeks ago, someone at a holiday party asked “Whitt, why doesn’t Budding Trends take on the weighty legal issues of the day and instead resort to cheap pop culture references and puns?” I thought about responding with a quote from “Run Like an Antelope” but then it hit me: Maybe we should give some thought to a more high-minded discussion about the practical implications of marijuana rescheduling. (Editor’s note: This exchange did not actually happen.) So, I guess set the gear shift for the high gear of your soul, and let’s dive in. Read more.
I’ll Cry if I Want To – But Taking Steps to Avoid Tears Is a Better Strategy for Private Company Business Partners
In recent years, the headlines have tracked the news of high-profile breakups among business partners in private companies. Read more.
Dust Off That Old Blog Post: Employee Pay When Facing Snow, Ice and Inclement Weather
Winter weather has arrived in the south. As most of us know, that means road closures, school closures, call outs, company closings, late openings, and “y’all go home.” Develop an inclement weather plan for your company and employees as early as you can and notify your employees of the plan. Inevitably, no matter how much you plan and communicate, pay questions arise for employees. Read more.
HUD’s Proposed ORCA Program – A New Option for Earlier Mortgagee Reimbursement
On December 19, 2024, the Fair Housing Administration (FHA) and the U.S. Department of Housing and Urban Development (HUD) published a draft Mortgagee Letter proposing a new Optional Reimbursement Claim Alternative (ORCA) program. ORCA is intended to allow mortgagees to seek reimbursement for property tax and insurance payments the mortgagee advances on behalf of forward mortgage borrowers before the final claim payment. Read more.
No. 10: Unlocking the Secrets of OSHA Inspections Through FOIA Requests
Did you know that you can request files from OSHA? Under the Freedom of Information Act (FOIA), employers, employees, and third parties have the right to request documents from OSHA’s inspection files. These records provide valuable insight into the evidence and reasoning behind OSHA’s decisions, including citations issued during site inspections. They can also be critical in legal proceedings, including lawsuits related to workplace safety. Read more.
OSHA’s New PPE Fit Requirements for the Construction Industry
Effective December 12, 2024, the Occupational Safety and Health Administration (OSHA) finalized an update to its personal protective equipment (PPE) standard for the construction industry, emphasizing the importance of ensuring PPE fits properly. Read more.
CFPB’s Successor Homeowner Issue Spotlight: The Other Side of the Story
On December 17, 2024, amid a flurry of activity by the Consumer Financial Protection Bureau (CFPB), the agency released an Issue Spotlight discussing “problems with mortgage companies” that homeowners face “after divorce or [the] death of a loved one.” The report relies on consumer complaints that have been submitted through the CFPB’s complaint portal to illustrate “the most common problems homeowners encounter with mortgage servicing companies” in these scenarios. In total, the report includes excerpts of 20 consumer complaints submitted between 2021 and 2024. Read more.
I’m WARNing You… Maybe??Bankruptcy Court Considers Exception to Layoff Notice Statute
The federal Worker Adjustment Retraining Notification Act (the WARN Act), generally requires that employers give workers 60 days’ written notice of any plant closings or mass layoffs. If employers do not comply with this requirement, then workers can recover backpay. Read more.
North Carolina Supreme Court: Government-Ordered Business Closures During COVID-19 Lockdowns Constitute “Direct Physical loss” Under Insurance Policy Lacking Virus Exclusion
On December 13, the North Carolina Supreme Court gave policyholders a partial victory in long-running litigation over business interruption coverage for shutdowns during the COVID-19 pandemic. In North State Deli v. Cincinnati Insurance Co., the court unanimously agreed with the plaintiff restaurants and bars that their insurance coverage for “direct physical loss” included the effects of COVID-19 government orders restricting the use of and access to the restaurants’ physical property because “direct physical loss” includes loss of the physical use for which their properties were insured. This ruling is notable as it goes against the grain of decisions in other jurisdictions finding that such orders depriving access to properties do not, by themselves, result in direct physical loss. Read more.
Bid Protests in Massachusetts
Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see our posts on “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in Massachusetts. Read more.
Predictions: 2025 to Be a Very Big Year in Cannabis
It’s the first week of January, and you all know what that means in the blogging game: It’s time to make wild predictions about the coming year.?As always, making predictions is hard, particularly when they’re about the future. But here are a few of our thoughts about what the cannabis world may look like in 2025. Read more.
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