In Case You Missed It (September 2024)
Bradley Arant Boult Cummings LLP
Innovative Solutions. Dependable Responsiveness. Commitment to Success.
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 Online and On Point Blog!
October 2024 marks the 21st Cybersecurity Awareness Month, with the enduring theme "Secure Our World," highlighting the importance of adopting strong cybersecurity practices and improving online safety habits. Throughout October, keep an eye on our Online & On Point blog for comprehensive cybersecurity insights. Our tailored articles will provide you with the latest trends, best practices, and actionable advice to fortify your digital defenses.
Online and On Point focuses on the rapidly changing landscape of data privacy regulations and its impact on businesses. The blog covers the span of federal privacy regulations, including ADA website compliance, the Children’s Online Privacy Protection Act (COPPA), Computer Fraud and Abuse Act (CFAA), Defense Federal Acquisition Regulation Supplement (DFARS), Fair Credit Reporting Act (FCRA), Family Educational Rights and Privacy Act (FERPA), Gramm-Leach-Bliley Act (GLBA), Health Insurance Portability and Accountability Act (HIPAA), and the Health Information Technology for Economic and Clinical Health Act (HITECH), among others. The blog also tracks the latest state laws and privacy requirements, including the California Consumer Privacy Act (CCPA) and other states’ efforts to enact similar regulations.
Upcoming Events:
2024 Business Owner Strategy Summit: Mark your calendars for our Business Owner Strategy Summit on Thursday, October 17, from 2-6 p.m. ET at our Atlanta office.
Bradley partners Stephen Opler and Rick Nickels, alongside Trey Haydon, Wesley Legg, Kyle Madden, and Caleb Lloyd, will explore essential steps for preparing your business for a successful transition.
Spaces are limited, so be sure to reserve your seat today to gain valuable insights and learn how to navigate common challenges.
After the discussion, we invite you to continue the conversation and connect with fellow attendees during a networking happy hour.
Missouri Cannabis Regulators Show Me a Well-Considered Clarification of Earlier Rule Essentially Banning Hemp Products
I can only assume that being a cannabis regulator is a challenging and usually thankless job. The laws are relatively new and constantly evolving. Operators are always pushing the science faster than regulators can promulgate thoughtful new rules. And of course, there is no shortage of bad actors in the cannabis business. Read more.
11th Circuit Considers Blog Posts to be News Media for Purposes of FCA’s Public Disclosure Bar
In August, the 11th Circuit affirmed the district court’s decision to dismiss relator Bruce Jacobs’ qui tam action against JPMorgan Chase Bank (“JP Morgan”), and in doing so, held that blog posts constitute “news media” for purposes of the public disclosure bar. The relator alleged that JP Morgan forged the endorsement of Washington Mutual loan promissory notes it had acquired with its purchase of the bankrupt Washington Mutual. According to the relator, Washington Mutual failed to properly endorse every loan it originated, forcing JPMorgan to repurchase loans already sold to Freddie Mac and Fannie Mae or render make-whole payments and losing the ability to submit servicing reimbursement payments. The complaint alleged that JPMorgan forged endorsements using stamps bearing prior Washington Mutual employees’ names. The complaint also alleged that JPMorgan had submitted false reimbursement claims to Freddie Mac and Fannie Mae for servicing these loans. Read more.
Mississippi Attorney General Deems Hemp Beverages Impermissible in Controversial Opinion, Highlighting Ongoing Tension Between the Marijuana and Hemp Industries
I guess if you do this job long enough, you’ll see just about everything. This time, it’s the attorney general of Mississippi wading into the legality of beverages containing hemp. And it’s a doozy.
The late, very great artist (and I stress the word artist) Merle Haggard used to sing “I Think I’ll Just Stay Here and Drink.” If the attorney general of Mississippi has her way, during these trying times that call for a stiff drink, those drinks won’t contain hemp, threatening to bring to an end one of the fastest growing marketplaces in the state.
When you discuss cannabis issues, it’s impossible not to discuss politics. But Budding Trends is not a place for partisanship, and this is no exception. There very well may be good policy reasons for a law that prohibits hemp-infused beverages. The point of this post is to explore the legal issues surrounding the attorney general’s bewildering opinion and to use it as a catalyst to underscore the marijuana vs. hemp rift that has enveloped the country the last couple of years. Read more.
Sex-Plus X – What’s That? Discrimination
Here’s a refresher: Discriminating against a subclass of a sex (e.g., older women or black women) is still discrimination. In McCreight v. AuburnBank, the Eleventh Circuit clarified a few things for the lawyers related to the different theories of liability, but the court also provided a good refresher on “sex-plus” discrimination, or discrimination based on a subclass of sex. Read more.
No 5. OSHA Can Issue Citations for Unsafe Work Conditions That Have Not Resulted in an Employee Injury
Most frequently, employers do not hear from OSHA unless they report a workplace injury. When a reported workplace injury does occur, OSHA will perform a walkthrough inspection of the worksite and may ultimately issue a citation for hazardous conditions OSHA believes may have caused or contributed to the incident. However, OSHA is not limited to issuing citations for hazardous conditions that may have caused or contributed to a workplace injury. Rather, OSHA can cite employers for any and all hazardous conditions to which workers may have been exposed regardless of whether the cited condition was in any way related to the incident. Read more.
Senate Proposal Would Weed Out Prior Marijuana Use for Federal Job Applicants
The DOOBIE Act – yes, you read that correctly – could soon become law. While the law isn’t as fun as it might sound to certain cannabis enthusiasts, it would substantially change the hiring practices of the federal government and potentially influence rules at the state level. Read more.
New FDIC Recordkeeping Requirements: Director Chopra Cautions Against a New Form of “Rent-a-Bank”
On September 17, 2024, the Federal Deposit Insurance Corporation (FDIC) rulemaking board proposed new recordkeeping rules intended to bolster the FDIC’s ability to make deposit insurance determinations for accounts that are the product of a partnership between an FDIC-insured depository institution (IDI) and a financial technology company (fintech). However, despite the proposed rule’s focus on fintechs, the proposed rule will likely apply broadly and create an increased burden on many IDIs, not just IDIs that partner with fintechs. According to FDIC Vice Chair Travis Hill, 600 to 1,100 banks could be subject to requirements imposed by the rule. Read more.
Unfair and Deceptive Cookie Banners: The Next Wave of Privacy Litigation?
Today, encountering a cookie banner is a common experience for most individuals who peruse the internet. These banners inform website users of the presence of cookies or other tracking technologies through language such as, “This website uses cookies. By clicking ‘accept,’ you consent to the use of all cookies.” Many states require companies to provide consumers with certain disclosures regarding tracking technologies, and some require that users are provided an opportunity to opt-out of tracking. However, even in states without specific disclosure or opt-out requirements, businesses may still be at risk. In July 2024, the Office of the New York State Attorney General (OAG) published guidance that provides some clear examples of what is acceptable and what is considered misleading in the flow, language, and design of cookie banners. Read more.
Chevron Is Dead, but the Department of Labor Still Has Some Gas! 5th Circuit Upholds DOL Salary Requirement
What about those salary thresholds for white-collar employees? Although they have been challenged, they are alive and kicking. Last week, the United States Court of Appeals for the Fifth Circuit affirmed that the Department of Labor has the authority to set the minimum salary required to qualify for the white-collar exemption. Read more.
Does Your Cyber Insurance Cover Social Engineering Fraud?
Most policyholders are aware of the danger of losses from fraudulent instructions and invoices accomplished through what is known as “social engineering” or related methods. Often this is carried out by an email claiming to be from a vendor or company executive that provides instructions for payment to a fraudulent account. In some cases, the fraud can go on for months before it is detected, leading to losses of hundreds of thousands of dollars. Read more.
DEA Announces Marijuana Rescheduling Hearing Following Elections and the Stakes Are Hugely Consequential
There’s a great scene towards the end of The Shawshank Redemption – which Budding Trend readers know is one of the greatest films ever made – where the character played by Tim Robbins encourages the Morgan Freeman character: “[I]f you’ve come this far, maybe you’re willing to come a little further.”
If you follow the marijuana industry, you could be forgiven for thinking it has felt like forever since the initial formal announcement that the federal government was considering rescheduling marijuana. After all, it was back in August 2023 that the Department of Health and Human Services recommended that the DEA consider rescheduling marijuana after determining the drug had a currently accepted medical use in the U.S. and that it was less dangerous than other Schedule I drugs. Read more.
California Bans Most Hemp Products and Illuminates Battle Between Hemp and Marijuana Businesses
What if I told you that California of all places – where virtually any adult can purchase marijuana on demand – was trying to harsh the mellow of citizens trying to access certain hemp-derived products? On the next 30 for 30, “California Schemin’.”
Welcome to the next front of the battle between marijuana and hemp.
California Gov. Gavin Newsom recently announced “emergency” regulations that would ban products derived from industrial hemp that contain any intoxicating cannabinoids and set an minimum age of 21 years old to purchase hemp products. Read more.
Recommended by LinkedIn
Cannabis and Civil Litigation: Has the Cannabis Industry Finally Met Its Most Dangerous Foe?
They say the first step is admitting you have a problem. My name is Whitt, and I’m a recovering litigator. I’ve spent years sending ugly letters and playing a zero-sum game with strangers, and it generally didn’t lead to a bunch of happy days at the office.
But ever since we started our Cannabis Industry team at Bradley, I have been looking forward to the day when I would be able to use those skills learned in my salad days to help my new clients in the cannabis world. Surely, I assumed, an industry growing as quickly and without regulation as the cannabis industry would eventually find itself in the crosshairs of the plaintiffs’ bar in the same types of lawsuits faced by the operators of nearly every other type of business. Read more.
The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence
How long can the government keep your property after lawfully seizing it? According to the D.C. Circuit in a recent decision, as long as the continued possession is still reasonable under the Fourth Amendment. This decision furthers a split among circuit courts and portends how the text, history, and tradition method might influence Fourth Amendment cases. Read more.
Government Contractors Beware: DOJ Pursuing Cybersecurity Failures Under the False Claims Act
The U.S. Department of Justice (DOJ) filed its first major complaint-in-intervention under the False Claims Act (FCA) premised on a government contractor’s alleged cybersecurity deficiencies since the DOJ’s Civil Cyber-Fraud Initiative was launched in 2021. Its complaint accuses the Georgia Institute of Technology (Georgia Tech) of violating cybersecurity regulations while fulfilling $31 million of federal contracts for, ironically, cybersecurity research. Read more.
It’s Getting Hot in Here: OSHA Proposes New Heat Hazard Rules
Did you know that OSHA does not currently have a specific standard covering heat stress hazards? Rather, OSHA uses the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, to impose requirements related to heat stress. OSHA reports that between 1986 and 2023 it has issued at least 348 hazardous heat-related citations under the General Duty Clause. Of these citations, 85 were issued between 1986-2000. Read more.
The False Claims Act in the Age of Digital Privacy
Bradley’s Government Enforcement and Investigations team keeps a close eye on the different ways the government is using the False Claims Act (FCA) to seek redress for cybersecurity deficiencies and force companies into a new technological era. Read more.
Federal Appeals Court: Pay That Man His Money, Unless That Money Is Illegal Marijuana Money
Good news, bad news if you’re a cannabis operator that owes money to a creditor. But probably bad news for the rule of law.
A federal appellate court has ruled that a cannabis operator is obligated to repay his debts to an ex-business partner, but it raised questions about whether the money used to repay the debt could violate federal marijuana laws.
What does this mean for a cannabis operator and potential investors? Read more.
Court Rejects Application of Flood Exclusion to Hurricane Rainfall
As the Atlantic hurricane season reaches its peak in September, bringing with it rainfall and flooding, a recent New Jersey court held a sewer overflow resulting from rainfall was not caused, directly or indirectly, by a flood and therefore did not trigger a flood exclusion. This decision, and the insured’s submission of evidence to prove causation, serves as a roadmap for policyholders challenging an insurer’s overbroad application of an exclusion. Read more.
Court Separates Facts from Fiction – Lack of Supporting Project Documents Dooms Contractor
A recent decision from the U.S. District Court for the Southern District of Florida demonstrates how facts supported by documents generated during the project can be vital to prime contractor/subcontractor disputes. In Berkley Ins. Co. v. Suffolk Constr. Co., No. 19-23059-CV, 2024 WL 3631226 (S.D. Fla. July 22, 2024), following a two-week bench trial on a breach of contract claim, the court issued a decision holding that the prime contractor’s mismanagement of the project ultimately caused the project’s overall delay entitling the subcontractor to recover its damages. Read more.
No. 4 of 10 Things Every Employer Should Know About OSHA: OSHA Must Issue a Citation Within Six Months
OSHA has a time limit on issuing citations. It must issue a citation within six months of the occurrence of any violation. The only exception to this rule is where the employer has concealed the violative condition or misled OSHA. Read more.
The Founder’s Dilemma: Stoking the Company’s Fire Without Forfeiting the Founder’s Interest in the Business
Fast-growing private companies are exciting to observe as outsiders, but on the inside the company founder has the challenge of securing enough capital to fuel the rapid growth of the business. The company’s continuous need for capital places the founder in the position of having to manage the company’s operations while at the same time engaging in perpetual fundraising efforts. And as new investors come on board, the founder will face significant pressure to cede control and also to reduce the founder’s ownership interest in the company because the equity that the new investors are acquiring in the business have to come from somewhere – namely, out of the founder’s hard-earned ownership interest. Read more.
Alabama Court Signals Possible Willingness to Allow Medical Program to Move Forward in Part
Over the past nearly two years, I have been talking to friends, clients, and basically anyone at parties about the slow progress (if I might be permitted to use that word in this context) of the Alabama medical cannabis program. Those conversations have afforded me the opportunity to examine a series of how the great thinkers of the past have dealt with delays that beset the very things that they have spent years dealing with. In the event any of our award-winning readers of Budding Trends have found themselves in a similar situation. Read more.
Bradley Comment Letter Highlights Questions Regarding the CFPB’s Statutory Authority to Issue Contemplated Mortgage Servicing Rulemaking
On July 10, 2024, the Consumer Financial Protection Bureau (CFPB) released a proposal to amend the existing mortgage servicing rules in Regulation X. The substance of the proposal has attracted a lot of attention and deservedly so. If enacted, the proposed rule would completely overhaul the default servicing framework in Regulation X and institute mandatory translation and interpretation requirements for certain written and oral disclosures. However, many servicers are also concerned about whether the CFPB has the requisite statutory authority to enact these proposals. We analyzed the CFPB’s purported authority for this proposal under the Administrative Procedures Act (APA) and believe that there is significant risk that a court would find that the CFPB lacks the authority to issue rules governing default-related servicing and translation and interpretation services. We explain this analysis in a comment letter that we recently filed and submitted to the CFPB on behalf of a group of mortgage servicer clients. Read more.
George Washington’s Whisky Distillery, 21st Century Edition
You might think the laws of King Edward I of England (1239-1307), George Washington’s whisky distillery, and an 1807 “Treatise on the Law of Idiocy and Lunacy” have little to do with the federal criminal code of 2024. And you might think they have even less to do with contemporary federal regulation of cannabis. But the Supreme Court’s test for the Second Amendment right to keep and bear arms requires litigants and courts to become historians scouring the archives. So, the U.S. Court of Appeals for the Fifth Circuit recently held a federal criminal statute barring unlawful users of controlled substances from possessing firearms and ammunition, 18 U.S.C. § 922(g)(3), was unconstitutional as applied. The government’s prosecution of a “non-violent, marijuana smoking gunowner” was dismissed. United States v. Connelly, — F.4th — (5th Cir. 2024). Read more.
SpaceX Exploration: Constitutional Challenge to NLRB Structure
Following several complaints filed with the National Labor Relations Board (NLRB), SpaceX has mounted a constitutional challenge against the structure of the NLRB. Specifically, SpaceX contends that NLRB administrative judges and board members are improperly insulated from at-will removal by the president, and that NLRB proceedings violate the separation of power and companies’ right to a jury trial under the Constitution. SpaceX joins a broader wave of similar challenges mounted by major corporations, including Amazon, Starbucks, and Trader Joe’s. Read more.
No. 3 of 10 Things Every Employer Should Know About OSHA: Employees Have Rights When It Comes to OSHA Interviews
Although OSHA has the right to conduct private, one-on-one interviews with a company’s non-managerial employees, those same employees have rights too. Read more.
How to Subscribe to Our Blog Network
If you would like to subscribe to any of these blogs, click the link(s) below: