Regulatory Playbook

Trending Issues

Key Areas to Consider Under the Updated Antitrust Division Corporate Compliance Guidelines
12.20.2024

For the first time since its introduction in 2019, the U.S. Department of Justice Antitrust Division (“DOJ”) has updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (the “Antitrust Compliance Guidelines” or “Guidelines”). The Antitrust Compliance Guidelines assist prosecutors in evaluating the effectiveness of corporate compliance programs aimed at preventing and detecting violations of the Sherman Act. These guidelines serve a critical role in prosecutorial decisions, shaping the DOJ’s approach on whether to bring antitrust charges, structuring resolutions and determining sentencing guidelines recommendations. For this reason, it is important for corporations to design their antitrust compliance programs with the Antitrust Compliance Guidelines in mind.

Department of Defense Releases New Strategy for Countering Unmanned Systems
12.20.2024

The rise in the deployment of unmanned aircraft systems (UAS), particularly their use in the ongoing conflicts in Ukraine and Israel, has cast a stark light on the vulnerabilities these systems expose both on the battlefield and in civilian areas. Weaponized drones, capable of striking from vast distances, have proven to be an effective, cost-efficient means of disrupting military operations, obliterating once-protected assets such as main battle tanks, combat ships and aircraft, while also targeting civilian infrastructure and military installations far behind the frontlines.

How Broad Is Too Broad? Supreme Court Considers Scope of NEPA
12.19.2024

In the first major National Environmental Policy Act (NEPA) case to reach the U.S. Supreme Court in two decades, the Court is poised to address a circuit split over whether an agency doing an environmental review under NEPA must consider effects beyond its regulatory jurisdiction, including effects relating to climate change. On December 10, 2024, the U.S. Supreme Court heard oral argument in Seven County Infrastructure Coalition v. Eagle County, which will clarify the scope of NEPA’s requirement to evaluate “reasonably foreseeable” effects. At issue is the U.S. Court of Appeals for the D.C. Circuit’s vacatur of an environmental impact statement (EIS) prepared by the Surface Transportation Board (the Board) on the proposed construction of an 88-mile railroad, citing insufficient analysis of potential adverse upstream and downstream effects.

From “Energy Transition” to “Energy Security”: Assessing the Impact of the Republican Trifecta on the Energy Industry
12.18.2024

Energy policy under President-elect Trump and Republicans, who will control both the Senate and House of Representatives at the start of the next Congress in January, will shift focus from the energy transition agenda of the Biden Administration to energy security, with a primary focus on lowering domestic energy costs.

A General Counsel’s Guide to the New HSR Rules
12.12.2024

In November 2024, the Federal Trade Commission (FTC) formally published its long-awaited final rule transforming the premerger notification process under the Hart-Scott-Rodino (HSR) Act—including changes to the HSR notification forms, accompanying instructions, and related agency rules. Compared with the FTC’s initial proposal in 2023, the unanimously adopted final rule is narrower and less burdensome (with changes likely made to secure the support of the Republican-appointed commissioners) but will still impose significant additional compliance costs on HSR filers.

Virginia Supreme Court Strengthens Protection Against Computer Crimes
12.12.2024

Criminal cases are not typically on the radar screen for legal and cybersecurity personnel. But a November 21, 2024, decision from the Supreme Court of Virginia, Commonwealth v. Wallace, has potential ramifications for protection of confidential information and trade secrets.

Trump 2.0: White House and Congressional Republicans Poised to Use the Congressional Review Act for Swift Regulatory Rollback
12.11.2024

Among other hallmarks of the incoming second Trump Administration, promises to slash regulations and the federal bureaucracy are now a defining feature. As exemplified by the creation of the “Department of Government Efficiency” or “DOGE,” an autonomous organization to be spearheaded by Elon Musk and Vivek Ramaswamy and tasked with “cut[ting] the federal government down to size,” President-elect Trump is expected to kick off his de-regulatory agenda on day one.

Bankruptcy Court Ruling Highlights Important Circuit Split on Assuming Franchise Agreements
12.10.2024

In a recent decision, the U.S. Bankruptcy Court for the Eastern District of California, applying Ninth Circuit precedent, ruled that a debtor/franchisee cannot assume its franchise agreements in a chapter 11 bankruptcy case without the franchisor's consent, even where the debtor merely intends to continue to perform under the agreement rather than assign it to a third party. This ruling in In re Pinnacle Foods of California LLC, No. 24-11015-B-11, 2024 WL 4481070, (Bankr. E.D. Cal. Oct. 10, 2024) highlights a persistent and contentious issue in bankruptcy law: the intersection of intellectual property rights and the Bankruptcy Code's provisions for assuming executory contracts.

When It Counts: Fully Secured and Paid-Off Creditors Can Count as Petitioning Creditors for Involuntary Bankruptcy Petitions
12.09.2024

On October 29, 2024, the Ninth Circuit Bankruptcy Appellate Panel (BAP) issued two opinions addressing important rules for involuntary petitions. (A BAP is comprised of three bankruptcy judges and exists in certain circuits to serve as an alternative to the U.S. District Court as an intermediate appellate court between the bankruptcy court and the U.S. Court of Appeals.) First, in determining whether a viable involuntary petition requires three petitioning creditors because the alleged debtor has 12 or more creditors, fully secured creditors with nonrecourse claims are counted under Section 303(b)(1). Second, if a creditor has a claim on the filing date, that creditor qualifies as a petitioning creditor, under both (b)(1) and (b)(2), if the claim is later paid off. In this alert, we examine the BAP’s opinions and the implications on creditors. In re King, No. 9:22-BK-10674-RC, 2024 WL 4599982 (B.A.P. 9th Cir. Oct. 29, 2024), In re King, No. 9:22-BK-10673-RC, 2024 WL 4600043 (B.A.P. 9th Cir. Oct. 29, 2024).

Trump 2.0: Anticipated Impact on Aviation and Aerospace
12.05.2024

Under the second Trump Administration, we are poised to see significant changes in the air transportation and aerospace landscape. President-elect Trump has made clear his intention to reduce regulation at the federal level, and air transportation will certainly be no exception. In particular, we expect to see reductions in consumer protection initiatives pursued by the Biden Administration, as well as significant reductions in restrictions on the commercial space and advanced air mobility sectors.

Corporate Transparency Act Enjoined
12.04.2024

On December 3, 2024, the U.S. District Court for the Eastern District of Texas (Mazzant, J.) granted a preliminary injunction in Texas Top Cop Shop, Inc., et al. v. Merrick Garland, Attorney General of the United States, et al., No. 4:24-CV-478 (E.D. Tex. filed Dec. 3, 2024) (the “Order”) enjoining enforcement of the Corporate Transparency Act, 31 U.S.C. § 5336 (CTA) and the Reporting Rule, 31 C.F.R. 1010.380. The court also stayed the January 1, 2025 compliance deadline for reporting companies—as defined by 31 U.S.C. § 5336(b)—to file beneficial ownership information reports under § 5336(b)(2). Order at 78-79. The scope of the injunction is nationwide. Id. at 2, 77-78.

Trump 2.0: What Happens to Federal Funding?
12.04.2024

Pillsbury’s recent alert on the newly formed Department of Government Efficiency, or “DOGE,” an autonomous organization created by President-elect Trump and spearheaded by Elon Musk, identified several steps for industries bracing for the impacts of DOGE’s anticipated recommendations to slash the federal budget. We now examine the implications of the Trump Administration’s policy priorities and cost-cutting focus on federal appropriations, government contracts and grant awards.

Treasury Department and IRS Issue Final Regulations on the Advanced Manufacturing Production Credit Under Section 45X of the Internal Revenue Code
11.27.2024

As amended by the Inflation Reduction Act of 2022, section 45X of the Internal Revenue Code (IRC) grants an advanced manufacturing production credit (AMPC) to manufacturers who produce certain clean energy components in the United States. The APMC is available for eligible components produced and sold after December 31, 2022. Eligible components include solar and wind components, inverters, some battery components and applicable critical minerals. In addition to being produced in the United States, the components must be sold to an unrelated party in the course of the taxpayer’s trade or business. The credit amounts available under IRC section 45X vary based on the type of eligible component that is produced and sold by the taxpayer.

Trump 2.0: A First Look at the Department of Government Efficiency
11.26.2024

Since the election, President-elect Trump has announced a flurry of initiatives for his next term in the White House, along with nominations of the government officials tapped to drive his agenda. As part of these announcements, Trump selected Elon Musk and Vivek Ramaswamy to lead a new entity dubbed “the Department of Government Efficiency,” or “DOGE,” tasked with “making changes to the federal bureaucracy” to “slash excess regulations, cut wasteful expenditures, and restructure federal agencies.”

No Longer Appealing: Why Are Contractors Filing Fewer Appeals at the ASBCA?
11.26.2024

The Armed Services Board of Contract Appeals (ASBCA or Board) recently issued its fiscal year (FY) 2024 annual report, covering the period from October 1, 2023, through September 30, 2024. As we have highlighted in the past several years, the Board continues to see fewer docketed appeals year over year. For FY 2024, the Board docketed 276 appeals, which represents a 20% decrease from the number of appeals docketed in FY 2023 and the lowest number of new appeals docketed during any fiscal year since 1979. Apart from a modest increase in FY 2020—which was an anomalous year for several reasons—contractors have docketed fewer appeals at the Board every year since 2014.

Critical Information and Communications Technology Service Providers Under DORA
11.25.2024

For financial entities, a vital part of the preparations for DORA includes compiling registers of information relating to contractual arrangements with providers of ICT services (ICT Providers). The purpose of the registers of information is not only to assist with financial entities’ internal ICT risk management (and to ensure that regulators can appropriately supervise financial entities) but also to enable the European Supervisory Authorities (ESAs) to designate “critical” ICT Providers and establish and conduct oversight of such ICT Providers.

Trump 2.0 Administration: Anticipated Impacts on International Trade, Sanctions and Economic Policy
11.22.2024

With the return of Donald Trump to the U.S. presidency, international trade and sanctions policies are poised for significant changes. Drawing from President-elect Trump’s first term and current campaign promises, industries should prepare for potential upheaval in global trade relations, tariff regimes, and economic enforcement policies. The following is the first in a series of alerts outlining important elements of the incoming Administration’s approaches to international trade law.

Government Accountability Office Fiscal Year 2024 Bid Protest Statistics Return to Normal
11.22.2024

On November 14, 2024, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2024. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for FY 2024 bid protest activity. The report also includes a chart providing similar bid protest statistics for fiscal years 2020 to 2024. This five-year snapshot provides some valuable insight into current bid protest trends and developments at the GAO.

DC Circuit Rules White House CEQ Lacks Authority to Issue Binding NEPA Regulations
11.14.2024

On November 11, 2024, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the White House Council on Environmental Quality (CEQ) lacks statutory authority to issue regulations implementing the National Environmental Policy Act (NEPA) that are binding upon federal agencies. The Court held that the CEQ regulations, which purport to govern how all federal agencies must implement NEPA, are beyond the scope of legal authority granted to CEQ by Congress.

FERC Rejects Interconnection Proposal for Nuclear-Powered Data Center Project
11.13.2024

On November 1, 2024, the Federal Energy Regulatory Commission (FERC) issued an order rejecting PJM Interconnection’s amended interconnection services agreement (“amended ISA”) with Talen Energy subsidiary Susquehanna Nuclear LLC and PPL Electric Utilities Corporation. The amended ISA would have increased the amount of load sent from the Susquehanna nuclear plant to a co-located Amazon Web Services (AWS) data center from 300MW to 480MW. Co-located loads are defined as customer loads that share a physical site with generating units and can be directly served by those units rather than through the broader transmission system.

Trump 2.0
11.07.2024

Former President Donald J. Trump won the U.S. presidential election on November 5, prevailing in the key “battleground states” necessary to win the Electoral College.

China Issues New Export Control Regulations on Civil-Military Dual-Use Items
11.07.2024

On October 19, 2024, the State Council of the People’s Republic of China (China or PRC) promulgated the Regulations on the Export Control of Dual-Use Items of China (Export Control Regulations), which will become effective on December 1, 2024.

The Treasury Department Finalizes U.S. Outbound Investment Rules
11.07.2024

On October 28, 2024, the U.S. Department of Treasury issued the long-awaited Final Rule implementing its outbound investment review framework. This follows prior stages of rulemaking, including an Advance Notice of Proposed Rulemaking (ANPRM) in August 2023 and a Notice of Proposed Rulemaking (NPRM) in June 2024, and formalizes a new governmental system to monitor and, when necessary, restrict investments in China that may be viewed as a national security risk.

Navigating the EU’s “NIS 2” Directive: Key Cybersecurity Compliance Points for Businesses Operating in the EU to Consider
11.04.2024

As cybersecurity threats continue to evolve, the European Union has advanced its regulatory framework with the introduction of a new cyber law, Directive 2022/2555, commonly referred to as “NIS 2”. It replaces Directive 2016/1148 (NIS 1), aiming to address the fragmented cybersecurity landscape across the EU by creating a unified approach to risk management and response. While NIS 1 focused on essential sectors, such as energy and transport, NIS 2 expands its reach to a broader range of industries, reflecting the digitalization of the European economy and the increasing risks associated with cyber threats across sectors.

Biden Administration Announces Research and Development Program to Accelerate Semiconductor Advanced Packaging
11.04.2024

On October 18, the Biden Administration released a $1.6 billion Notice of Funding Opportunity (NOFO) funded by the CHIPS and Science Act to accelerate U.S. Semiconductor Advanced Research and Development (R&D) across five key R&D areas. Aligning with the Administration’s goal of investing in domestic manufacturing industries, the program is projected to provide $1.6 billion in funding across the five R&D areas.

Small Business Administration Expands the “Rule of Two"
11.01.2024

On October 25, 2024, the Small Business Administration (SBA) issued a proposed rule that would expand the applicability of the “Rule of Two.” Under the proposed rule, the Rule of Two would apply to orders issued under multiple award contracts, with certain exceptions.