Oregon Court of Appeals Issues Three Different Defense Opinions
Oregon’s Court of Appeals was busy issuing three different defense opinions on March 19, 2025. Circuit court errs by awarding attorneys’ fees based on a contingency fee.The first was Griffith v. Property and Casualty Ins. Co. of Hartford, where a homeowner submitted a fire loss and alleged the insurer did not pay the benefits owed quickly enough. The insureds filed a complaint, the insurer answered, and then a global settlement occurred. The insureds then filed a motion for summary judgment seeking prejudgment interest per ORS 82.010 as well as attorneys’ fees per ORS 742.061(1). They also sought costs as a prevailing party. The circuit court denied interest because no judgment had been entered and costs because there was no prevailing party, but granted $221,179.27 in attorneys’ fees. Both sides appealed. The insureds’ appeal about prejudgment interest was rejected for procedural reasons. The circuit court order on costs was affirmed because there was no prevailing party. Griffith is noteworthy only for its ruling about attorneys’ fees. The insurer did not dispute that ORS 742.061(1) applied or that the insureds were entitled to attorneys’ fees. It disputed only how the circuit court calculated the amount of the award. The circuit court determined that amount was a percentage of the insureds’ recovery. The Court of Appeals held that this was error.
When an award of attorneys’ fees is permitted, ORS 20.075 provides factors to determine the amount to award. Its factors generally align with the lodestar method. Although a percentage of the recovery might be appropriate in some circumstances, Griffith concluded the “lodestar method is the prevailing method for determining the reasonableness of a fee award in cases, such as this, involving a statutory fee-shifting award, even when, as here, the insured has retained counsel on a contingency-fee basis.” Further, the award “must be reasonable; a windfall award of attorney fees is to be avoided.” The Court of Appeals concluded using a percentage of the recovery was inappropriate in this instance. This is because coverage was never disputed, and the claim was immediately accepted. By the time the complaint was filed, the insurer had made several payments and was still adjusting the loss. There was minimal litigation and the delay paying the full claim “was caused by circumstances outside of the parties’ control.” The Court of Appeals ultimately concluded that the insureds had not met their burden to demonstrate the fees they sought were reasonable. The case was remanded to redetermine the fees owed.
No really, the recreational use statute applies to a city park.In Laxer v. City of Portland, the plaintiff entered Mount Tabor Park to “walk its trails” but tripped and fell due to a hole in the pavement. The plaintiff sued the City, but the circuit court granted the City’s motion to dismiss based on Oregon’s recreational use statute, ORS 105.682. The plaintiff appealed. Among other arguments, the plaintiff argued the paved road in the park was like a public sidewalk and thus exempt from ORS 105.682. The Court of Appeals concluded that while there are limits to ORS 105.682, “generally available land connected with recreation” is still typically protected. Since Mount Tabor Park is clearly connected with recreation, the dismissal was affirmed.
Defense verdict affirmed in slip-and-fall case.In Fisk v. Fred Meyer Stores, Inc., where a customer slipped “on a three-foot by five-foot laminated plastic sign, which had fallen from its stand onto the public walkway.” The sign belonged to the store and was placed there by store employees. The case was tried and produced a defense verdict.
On appeal, the customer conceded there was no evidence to prove the store (1) placed the sign on the ground, (2) knew the sign was on the ground and did not use reasonable diligence to remove it, or (3) the sign had been on the ground for enough time that the store should have discovered it. The customer instead argued the circuit court erred by not giving a res ipsa loquitur instruction. Although Oregon case law has concluded res ipsa loquitur does not apply to slip and falls, the customer argued this was not a slip and fall because an object caused the fall.
Fisk affirmed the circuit court’s refusal to give the res ipsa loquitur instruction. The customer’s attempted legal distinction was meaningless. “We agree with defendant that because plaintiff slipped on an object on the ground, plaintiff’s claim is correctly characterized as a slip-and-fall claim.”
From Seizures to Strategy: The U.S. Government’s Move Toward a National Crypto Reserve
Following President Trump’s March 6 Executive Order establishing a Strategic Bitcoin Reserve, released alongside a White House Briefing, the U.S. government has taken its most formal step yet toward integrating digital assets into national economic and security policy. The order outlines a broader strategy to manage and expand the federal government’s holdings of Bitcoin and other designated cryptocurrencies through the creation of a Strategic Bitcoin Reserve and U.S. Digital Asset Stockpile.
While many details remain forthcoming, existing government practices around crypto asset custody, combined with reporting on the administration’s plans, offer a glimpse into how the reserve may operate in practice.
Bitcoin: The Foundation of the Reserve
The executive order calls for the formation of a Strategic Bitcoin Reserve, leveraging the U.S. government’s existing crypto holdings—estimated to exceed 200,000 BTC based on seizures of crypto in connection with illicit activities. These assets are already under federal control and provide a ready base for the reserve.
The Department of Justice (DOJ) has historically overseen management of some of the U.S. government’s crypto assets under its Digital Asset Forfeiture Program. The U.S. government has also contracted with third-party institutional crypto custodians to provide secure custody, wallet management, and liquidation services for seized crypto assets. The U.S. Marshals Service, a unit of the DOJ, has also periodically offered crypto for sale, just as it does with artwork, vehicles and other assets forfeited to the government in various criminal, civil and administrative cases.
However, the White House Briefing points out shortcomings in the U.S. government’s current crypto asset management protocols, including that assets are scattered across multiple Federal agencies, leading to a non-cohesive approach where options to maximize value and security of crypto holdings have been left unexplored. Additional measures could include multi-signature wallet storage, layered access controls, segregated storage (as opposed to pooling crypto assets in one omnibus wallet), strategic portfolio management, and specialized regulatory oversight via the Presidential Working Group on Digital Asset Markets.
Beyond Bitcoin: The Digital Asset Stockpile
In addition to Bitcoin, the executive order also calls for the creation of a U.S. Digital Asset Stockpile, which will include four cryptocurrencies, reportedly selected for their market relevance, technical resilience, and utility in decentralized finance (DeFi) and cross-border settlement use cases. The rationale, as outlined in a White House briefing, is to ensure the United States maintains influence and optionality in emerging blockchain ecosystems while encouraging domestic innovation.
To date, no details have surfaced regarding a formal acquisition program for these assets or how the crypto asset portfolio will be managed.
Putting It Into Practice: The launch of the Strategic Bitcoin Reserve and Digital Asset Stockpile marks a watershed moment in U.S. crypto policy. This policy signals a clear shift toward legitimizing digital assets as sovereign financial instruments and could prompt other nations to consider similar reserves (for our previous discussions on recent developments in the ongoing shift in U.S. crypto policy, see here, here, here, and here). This development also suggests the U.S. intends to play an active role in shaping global crypto governance—not only through regulation, but also through participation and ownership.
Parole Programs for Cuban, Haitian, Nicaraguan, and Venezuelan Nationals Terminated by DHS
On March 25, 2025, the U.S. Department of Homeland Security (DHS) published a notice in the Federal Register announcing the immediate termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole programs. As a result, approximately 532,000 individuals in the United States who were paroled under these programs will lose their parole authorizations and any associated benefits, including work authorizations, within thirty days of the date of publication of the notice, or by April 24, 2025.
Quick Hits
On March 25, 2025, the U.S. Department of Homeland Security (DHS) announced the immediate termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole programs, affecting approximately 532,000 individuals who will lose their parole and associated benefits by April 24, 2025.
The Trump administration has decided to end these programs, citing a lack of significant public benefit and inconsistency with foreign policy goals.
Because CHNV beneficiaries will lose ancillary benefits such as employment authorization, employers will need to reverify the work authorization of affected employees by the April 24, 2025, deadline.
Background
Parole allows noncitizens who may otherwise be inadmissible to enter the United States for a temporary period and for a specific purpose. Section 212(d)(5)(A) of the Immigration and Nationality Act authorizes the secretary of homeland security, at the secretary’s discretion, to “parole into the United States temporarily under such conditions as [the secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”
The Biden administration implemented a temporary parole program for Venezuelan nationals in October 2022 to discourage irregular border crossings and later expanded the parole programs to include Cuban, Haitian, and Nicaraguan nationals in January 2023. The CHNV parole programs permitted up to 30,000 individuals per month from Cuba, Haiti, Nicaragua, and Venezuela to enter the United States for a period of up to two years. Until January 22, 2025, approximately 532,000 individuals arrived in the United States by air under the CHNV parole programs.
The Biden administration announced in October 2024 that it would not extend legal status for individuals permitted to enter the United States under the CHNV parole programs but encouraged CHNV beneficiaries to seek alternative immigration options. On January 20, 2025, President Donald Trump announced his intention to terminate the parole programs in Executive Order 14165, “Securing Our Borders.” Consistent with that executive order and the secretary of homeland security’s discretionary authority, Secretary Kristi Noem is now terminating the CHNV parole programs, having found the programs no longer “serve a significant public benefit, are not necessary to reduce levels of illegal immigration, … and are inconsistent with the Administration’s foreign policy goals.”
What This Means for Employers
According to the notice, any employment authorization derived through the CHNV parole programs will terminate on April 24, 2025. This will impact persons with Employment Authorization Documents (EADs) in the (c)(11) category. Individuals without a valid alternative basis to remain in the United States are expected to depart the country upon the termination of their paroles on April 24, 2025.
CHNV beneficiaries may have already updated their Form I-9s with EAD cards with a validity date beyond April 24, 2025. Employers are expected to reverify affected employees’ work authorizations by April 24, 2025, to ensure continued compliance with Form I-9 employment eligibility verification rules. However, identifying which employees are impacted by this change prior to the April 24, 2025, expiration date may be challenging, since the public interest parolee EAD category code (c)(11) is typically not entered in the I-9 form or other personnel records.
In the Federal Register notice, DHS indicated it may use the expedited removal (deportation) process for any CHNV beneficiaries who do not depart the United States or obtain another lawful status by April 24, 2025. Under sections 235(b)(1) and 212(a)(9)(A)(i) of the Immigration and Nationality Act, expedited removal orders may not be appealed, and those removed through such means are subject to a five-year bar on reentry to the United States.
A lawsuit challenging the termination of CHNV parole has been filed.
CLP Changes And What They Mean For Commercial Operations — A Conversation with Karin Baron and Lioba Oerter [Podcast]
This week I had the pleasure of speaking with Lioba Oerter, Director of Expert Services, 3E Expert Service Processing Centre (ESPC), and Karin F. Baron, Director of Hazard Communication and International Registration Strategy at B&C and our consulting affiliate, The Acta Group, about the significant changes to product classification, labeling, and packaging (CLP) in the European Union (EU). Lioba and I shared a podium recently and found we also have a shared belief that these forthcoming CLP changes will have a profound commercial impact on product classification, labeling, and packaging globally and that with everything going on in the world these days, this impact may be a bit underappreciated. Karin and I spoke about these matters last year, and I welcomed an opportunity to consider them again with Karin and Lioba in light of the new CLP developments as of December 2024. Karin, Lioba, and I discuss the CLP changes, including those recently made, why they came to be, what they mean for commercial operations, and conclude with some tips on staying ahead of this coming storm.
Virginia Governor Vetoes High-Risk Artificial Intelligence Developer and Deployer Act
On March 25, 2025, Virginia Governor Glenn Youngkin vetoed the High-Risk Artificial Intelligence Developer and Deployer Act (the “Act”), which had been passed by the Virginia legislature. The Act would have imposed accountability and transparency requirements with respect to the development and deployment of “high-risk” AI systems. In explaining the veto, the Governor stated that the Act’s “rigid framework fails to account for the rapidly evolving and fast-moving nature of the AI industry and puts an especially onerous burden on smaller firms and startups that lack large legal compliance departments.” The Governor also noted that Virginia’s existing laws “protect consumers and place responsibilities on companies relating to discriminatory practices, privacy, data use, libel, and more,” and that an executive order issued by the Governor’s Administration had “establish[ed] safeguards and oversight for AI use, and assembl[ed] a highly skilled task force comprised of industry leading experts to work closely with [the] Administration on key AI governance issues.”
ANCIENT TEXTS: Plaintiff Brings Class Action Against Ancient Cosmetics 3 years 364 Days After Text Was Sent
When people tell you the statute of limitations for a TCPA violation is four years– we really mean it.
Back on March 25, 2021 a company called Ancient Cosmetics allegedly sent a marketing text message to a lady named Patrice Gonzalez.
At that time Tom Brady had just won a Super Bowl over the Chiefs, that big ship Ever Given was still stuck in the Suez canal and the Czar was still working in big law.
Yeah, that was a looooong time ago.
But just this week Ms. Gonzalez filed a TCPA class action lawsuit against Ancient Cosmetics over the ancient text messages–what are the odds of that BTW?–and its a great reminder to folks.
Compare!
What you do today in TCPAWorld has consequences for a loooong time to come.
That means you need to be keeping records of consent–especially if you are buying leads–for that entire time.
And yes people WILL sue you 3 years, 364 days after you allegedly violate the TCPA.
Gross, right?
Let those who have ears to hear, hear.
An In-Depth Look at Three of the Most Common Types of Government Procurement Fraud
While government procurement fraud can take many different forms, certain forms are more common than others. These forms of fraud within the procurement process cost taxpayers hundreds of billions of dollars per year, and they impact agencies across the federal government.
Although federal agencies have the authority to audit their contractors, and while the U.S. Department of Justice (DOJ) and Offices of Inspectors General (OIGs) specifically target procurement fraud, the federal government still relies heavily on whistleblowers to report fraud, waste, and abuse. This makes it critical for whistleblowers to come forward when they have information that could help uncover procurement fraud cases—and the False Claim Act’s whistleblower reward provisions provide a direct financial incentive to do so.
“Whistleblowers play a critical role in the federal government’s ongoing fight against government procurement fraud. From bid rigging and collusion to violations of the Buy American Act (BAA), whistleblowers can receive financial rewards for reporting all types of procurement fraud to the appropriate federal authorities.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
With all of this in mind, when can (and should) employees, former employees, and others consider serving as a federal whistleblower? Here is an in-depth look at three of the most common types of government procurement fraud:
3 Common Types of Government Procurement Fraud
1. Bid Rigging and Collusion
The U.S. General Services Administration’s Office of Inspector General (GSAIG) identifies bid rigging and collusion as being among the most common types of government procurement fraud. It specifically identifies five forms of bid rigging and collusion that are particularly common within the federal contracting sector:
Bid Rotation – Bid rotation involves “tak[ing] turns submitting the lowest (winning) bid on a series of contracts” based on a “pre-established agreement.”
Bid Suppression – Bid suppression involves an agreement “not to bid, or withdraw a previously submitted bid, so a designated bidder is ensured to win.”
Bidding Collusion – Bidding collusion involves contractors agreeing to “set prices they will charge . . . , set a minimum price they will not sell below, or reduce or eliminate discounts.”
Complementary Bidding – Complementary bidding involves certain contractors “submit[ting] bids which are intentionally high or which intentionally fail to comply with bid requirements.”
Customer and Market Division – Customer and market division involve contractors agreement “not to bid or submit only complementary bids for customers or geographic areas.”
Even when competitive bids are submitted, the integrity of the bid evaluation process can be compromised through coordinated efforts to mislead contracting officials. As a result, recognizing unusual patterns in the bids governments receive can be a key first step toward identifying collusion or fraud in the procurement process.
If left undiscovered and unreported, all forms of bid rigging and collusion can lead to federal agencies paying more than necessary for essential products and services. In many cases, contractors will engage in multiple forms of bid rigging, price fixing, and collusion in an effort to create the appearance of legitimate competition. Contractors’ current and former employees will often have access to information that federal agencies have no practical way of discerning on their own—and this is one of several reasons why whistleblowers play such an important role in the federal government’s fight against procurement fraud.
According to the GSAIG, the following are common indicators (among others) of potential bid rigging and collusion:
Competing bids that contain identical line items or lump sums
Bids that greatly exceed the contracting agency’s estimated contract value
Bids that greatly exceed the total contract value of competing bids
Last-minute alterations or withdrawals of competitive bids
Contractors giving different bid amounts for the same line items on different contracts
Non-submission of bids by qualified contractors
Frequent interactions or communications between bidders near the time of submission
Certain contractors never (or rarely) bidding against others
Contractors only bidding for certain types of contracts despite broader capabilities
Joint venture submissions when both contractors have the ability to perform individually
2. Defective Pricing and Other Pricing Violations
Defective pricing and other pricing-related violations are also extremely common forms of procurement fraud. Here too, federal agencies often rely heavily on whistleblowers to inform them of suspect pricing practices, as they otherwise have limited options for uncovering pricing violations without initiating a costly and time-consuming audit or investigation. While conducting an audit or investigation can be well worth it when there is something to find, auditing all federal contractors to search for evidence of a potential pricing violation or another fraudulent scheme simply is not feasible.
Some common examples of pricing-related violations in the federal procurement sector include:
Defective Pricing – Defective pricing is defined as “provid[ing] incomplete, inaccurate or not current disclosures during contract negotiations.” While federal agencies can reduce government contract prices under the Federal Acquisition Regulations (FAR) in the event of defective pricing, again, agencies are often reliant on whistleblowers to inform them that action is warranted.
Price Reduction Violations – Price reduction violations involve contractors failing to lower their prices for government agencies when they offer discounts to other clients or customers. While these price reductions are not required across the board, non-compliance with this requirement (when it applies) is fairly common.
Progress Payments Fraud – Progress payments fraud involves “submit[ting] a request for payment with a false certification of work completed or falsified costs such as direct labor not rendered and materials not purchased.” This is a common form of fraud as well that can also be difficult for contracting agencies to uncover on their own—particularly in certain industries.
Similar to bid rigging and collusion, pricing-related violations can result in substantial overpayments and allow unqualified contractors to acquire contracts they wouldn’t win with accurate pricing disclosures. Whether intentional or inadvertent, these violations warrant correction to help preserve taxpayer funds and maintain the integrity of the federal procurement system. When committed intentionally, defective pricing and other pricing-related violations may warrant criminal enforcement action as well.
According to the GSAIG, the following are common indicators (among others) of potential pricing-related violations under federal contracts:
Nondisclosure of standard concessions
Nondisclosure of standard discounts
Nondisclosure of standard rebates
Failure to provide updated pricing information to the federal government
Delays in releasing updated pricing information
Failure to disclose third-party customer agreements that contain more favorable pricing than that offered to the federal government
Offering better pricing on the open market than offered to the federal government
Providing financial data and pricing information for different time periods
Inability to explain why certain supplies or materials were necessary
Reporting hours worked that are inconsistent with hours documented on employees’ timecards
3. Charging Violations
Charging violations also involve improperly billing the government under procurement contracts, but they relate more to the products and services provided (or lack thereof) than the pricing offered. For example, as identified by GSAIG, some of the most common forms of government procurement fraud that involve charging violations are:
Charging for Products Not Used or Delivered – Charging federal agencies for products not used or delivered is an extremely common form of government procurement fraud. This includes charging for materials and supplies that contractors have purchased but not used as well as billing federal agencies for end products that have not been delivered.
Charging for Services Not Performed – Charging for services not performed is another extremely common form of government procurement fraud. Many federal procurement fraud investigations focus on allegations that contractors have altered their employees’ timecards or inflated the time spent on contract-related activities.
Charging for Inferior Products or Services (Substitution) – Charging for inferior products or services (also commonly referred to as service or product substitution fraud) is common as well, especially when contractors fail to meet contract specifications. Federal contractors have an obligation to deliver in accordance with the terms to which they have agreed, and delivering inferior products or services violates this obligation.
Cost Mischarging – Cost mischarging involves “charg[ing] the government for costs which are not allowable, reasonable, or allocated directly or indirectly to the contract.” This includes misrepresenting charges as allowable, concealing unallowable costs within government billings, and hiding unallowable costs in accounts that are difficult for federal agencies to audit effectively.
Improperly Charging Under a Time and Materials (T&M) Contract – Charging expenses under a time and materials (T&M) contract that should be billed under a contractor’s firm fixed price (FFP) contract with the government is also a common type of charging violation. This, too, can be difficult for federal agencies to identify without whistleblowers’ help.
Violations of the Buy American Act (BAA) and Trade Agreements Act (TAA) fall into this category as well. The BAA requires the federal government to buy “articles, materials, and supplies” from domestic producers unless an exemption applies, while the TAA restricts the sources of end products delivered to federal agencies. Noncompliance with these statutes and falsely certifying compliance with these statutes are both common forms of federal procurement fraud.
According to the GSAIG, the following are common indicators (among others) of potential charging violations:
Costs billed under T&M contracts that exceed contract estimates
Products or services billed under FFP contracts that fall below contract estimates
Billing costs under a T&M contract that are not related to the subject matter of the contract
Using vague terms or descriptions when billing for discrete products or services
Modification of purchase orders or timecards
Inadequate documentation to support charges under federal contracts
Increases in labor hours without corresponding increases in output
Billing for labor hours at or extremely near the budgeted amount
Efforts to prevent auditing, inspection, or testing of delivered products or products in development
Irregularities in dates, signatures, and other details pertaining to charged amounts
Again, these are just three of the most common types of government procurement fraud. From manipulating the bidding process to paying kickbacks and falsely claiming small business or veteran-owned status, procurement fraud can take many other forms as well. If you believe that you may have information about any form of procurement fraud and are thinking about serving as a federal whistleblower, you should consult with an experienced attorney promptly.
What’s the (Re)issue? Patent Term Extensions for Reissue Patents
Addressing the calculation of patent term extensions (PTEs) under the Hatch-Waxman Act, the US Court of Appeals for the Federal Circuit affirmed a district court decision that under the act the issue date of the original patent should be used to calculate the extension, not the reissue date. Merck Sharp & Dohme B.V. v. Aurobindo Pharma USA, Inc., Case No. 23-2254 (Fed. Cir. Mar. 13, 2025) (Dyk, Mayer, Reyna, JJ.)
Merck owns a patent that is directed to a class of 6-mercapto-cyclodextrin derivatives. Four months after the patent issued, Merck applied to the US Food & Drug Administration (FDA) for approval of sugammadex, which it intended to market as Bridion®. During FDA’s review of Merck’s new drug application (NDA), Merck filed a reissue application that included narrower claims. The reissue application issued and included all the original claims and 12 additional claims. FDA regulatory review continued throughout the examination of the reissue application and extended almost two years beyond the date the patent reissued. In all, the FDA regulatory review lasted nearly 12 years.
The Hatch-Waxman Act provides owners of patents related to pharmaceutical products a process to extend the term of their patent rights to compensate for time lost during regulatory review of their NDAs. The act contains a clause providing that “the term of a patent . . . shall be extended by the time equal to the regulatory review period . . . occur[ring] after the date the patent is issued.” Having been unable to market the invention covered by the patent for almost 12 years because of FDA’s regulatory review, Merck filed a PTE application for its reissue patent seeking a five-year extension (the maximum allowed under the act) based on the patent’s original issue date. The US Patent & Trademark Office (PTO) agreed and granted the five-year extension.
Between the reissue date and the PTO’s grant of the five-year extension, Aurobindo and other generic manufacturers had filed abbreviated new drug applications (ANDAs) seeking to market generic versions of Bridion®. Merck sued for infringement. At trial, Aurobindo argued that the PTO improperly calculated the PTE by using the original issue date instead of the reissue date because only 686 days of FDA’s regulatory review occurred after the reissue date, as opposed to the almost 12 years which had passed since the initial issue date. The district court disagreed, finding that Aurobindo’s proposed construction “would undermine the purpose of the Hatch-Waxman Act.” Aurobindo appealed.
Aurobindo argued that the act’s reference to “the patent” referred to the reissue patent because that is the patent for which the patentee was seeking term extension. Merck argued that the act’s text, read in light of other patent statutes and the history of patent reissue, required the opposite conclusion (i.e., a PTE based on the original issue date).
The Federal Circuit agreed with Merck, explaining that while the language of the PTE text may be ambiguous, that ambiguity may be resolved by considering the PTE text in light of the history of the Hatch-Waxman Act and its place within the statutory scheme. The purpose of the act is “to compensate pharmaceutical companies for the effective truncation of their patent terms while waiting for regulatory approval of new drug applications,” and “the statute should be liberally interpreted to achieve that end.”
Having found that the Hatch-Waxman Act contemplates PTE for patents claiming drug products for which exclusivity was delayed by FDA review, the Federal Circuit found no reason to deny Merck compensation for the PTE period calculated by the PTO based on the original patent issue date.
Demystifying the Swamp: Executory Process in Louisiana
Some commentators are predicting that the declining foreclosure rates witnessed in 2024 could begin to trend upward this year. This potential upward trend underscores the importance of banking institutions and other mortgage holders understanding the foreclosure process and the costs associated therewith. This understanding is essential to making sound lending decisions.
While the foreclosure process varies state to state, Louisiana is (likely to nobody’s surprise) an outlier in this area of the law. While Louisiana requires foreclosure be accomplished through judicial means, it provides a unique and expedited procedure for doing so, known as executory process. While this unique procedure may seem intimidating to the unfamiliar, when examined and understood, it reveals itself to be a useful and cost-effective procedural tool for banks and other mortgage holders to exercise their foreclosure rights.
Executory Process vs. Ordinary Process
Unlike some other states, Louisiana does not allow nonjudicial foreclosure. As an alternative, Louisiana has the mechanism of executory process. Executory process is an accelerated summary procedure authorized under the Louisiana Code of Civil Procedure. It allows the holder of a mortgage or privilege, evidenced by an authentic act importing a confession of judgment, to effect an ex parte seizure and sale of the subject property without previous citation, contradictory hearing, or judgment.[1] This process is designed to be simple, expeditious, and inexpensive, enabling creditors to seize and sell property upon which they have a mortgage or privilege. This is in contrast to foreclosure by ordinary process, in which the general rules applicable to ordinary lawsuits are followed.
Executory process is considered a harsh remedy, requiring strict compliance with the letter of the law. Each step must be carried out precisely as outlined in the Louisiana Code of Civil Procedure and applicable jurisprudence. The Louisiana Code of Civil Procedure outlines specific requirements and protections to ensure due process for the debtor. The procedure is in rem, meaning it is directed against the property itself rather than the person, and no personal judgment is rendered against the debtor.
How It Works
The process begins with the filing of a petition supported by certain self-proving documents that are accurate and explicit in nature. The creditor must provide authentic evidence of the debt, the act of mortgage or privilege importing a confession of judgment, and any other necessary instruments to prove the right to use executory process. The trial judge must be convinced that these requirements are met before issuing an order for executory process. Following amendments in 1989, not every document submitted in support of the petition needs to be in authentic form. Under current law, certain signatures are presumed to be genuine and certain documents may be submitted in the form of a private writing.
Once the court grants the order, the property is seized and sold, with the proceeds credited against the indebtedness secured by the property. If the property was appraised prior to sale, then the creditor retains the right to pursue the debtor for any deficiency remaining after the sale. The creditor is entitled to bid at the judicial sale of the property, and if the creditor’s bid is the winning bid and is the same or lower than the indebtedness of the creditor, the creditor will only be obligated to pay the sheriff’s costs of sale. If the creditor has the winning bid on the property, the creditor obtains the property free and clear of all inferior encumbrances, but the property will remain subject to any superior encumbrances.
After the recordation of the sheriff’s sale or process verbal, a sale through executory process may only thereafter be attacked by direct action alleging procedural defects in the process of such substance that they strike at the foundation of the executory proceeding.[2]
Debtors have protections under this process. They can arrest the seizure and sale of their property by seeking an injunction if (i) the debt is extinguished, (ii) the debt is legally unenforceable, or (iii) the procedural requirements for executory process have not been followed. This petition for injunction must be filed in the court where the executory proceeding is pending. Additionally, the law provides for certain delays in the process to benefit the debtor, although these delays have normally been waived by the debtor in the act of establishing the security interest.
Executory process is designed to be a swift and cost-effective method for creditors to enforce their rights, but it is surrounded by safeguards to protect the debtor’s interests, ensuring that the process is not misapplied and that due process is maintained.
Conclusion
While executory process is a unique creature of Louisiana law, it is not as alien as it may first appear. The Louisiana executory process essentially combines elements of ordinary and summary process to create a streamlined judicial foreclosure process. While not as expedient as the nonjudicial foreclosure available in some other states, it is not as onerous as seeking foreclosure through ordinary judicial process. Banks and other mortgage holders should be comfortable in understanding that, while unique, executory process in Louisiana is not something to be feared.
[1] Louisiana Code of Civil Procedure art. 2631; see also Liberty Bank & Tr. Co. v. Dapremont, 803 So. 2d 387, 389 (La. Ct. App. 2001).
[2] Louisiana Revised Statute 13:4112; Deutsche Bank Nat’l Tr. Co. ex rel. Morgan Stanley ABS Capital I, Inc. v. Carter, 59 So.3d 1282, 1286 (La. Ct. App. 2011).
Navigating Whistleblower Protections and Compliance with DEI Executive Orders
As Polsinelli has discussed, President Donald Trump issued Executive Order No. 14151 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and Executive Order No. 14173 titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (collectively, the “Orders”) shortly after taking office, and that a District Court of Maryland enjoined certain aspects of those Orders. The Trump administration appealed the District Court’s decision, and on March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit granted the Trump administration’s request for a stay (i.e., pause) of the injunction pending the outcome of the appeal. This means that during the appeal, the Orders are in full force and effect.
There are many articles discussing the importance of employers taking steps to determine whether their actions, policies and procedures may violate the Orders.
Given the back-and-forth nature of the decisions related to the Orders, a question that some employers may have is whether an employee is protected from retaliation if they report that they believe their employer is violating one of the Orders, but that Order is eventually struck down. Employers may be surprised to learn that if an employee reasonably believes the employer’s activity violates a legal provision (here, for example, the Orders), then they may be protected even if the Orders are later revoked or struck down.
Whistleblower Protections and Potential Activity Related to the DEI Executive Orders
What might protected activity look like with regard to these Orders? Examples of potential whistleblowing activity could include:
An employee may report the employer is continuing DEI programs, trainings or initiatives that they believe violate the Orders prohibiting race- or gender-based preferences.
An employee may report that an employer or an employee of the employer is prioritizing hiring, promotions or contracting decisions based on race, gender or other DEI-related criteria.
An employee may report that their employer is requiring them to participate in DEI training and claim such training promotes race- or gender-based biases, in violation of the Orders.
Employees working for federal contractors may report that their employer is not following the Orders’ requirements regarding DEI restrictions in government-funded projects or is inaccurately certifying compliance with DEI-related contract terms.
How Should Employers Respond to Whistleblowing?
When an employee reports a concern or engages in whistleblowing activities, employers should carefully evaluate and respond to the allegations. Steps an employer should consider taking include:
Assessing the complexity and seriousness of the employee’s complaint and, if appropriate, consider an investigation conducted under the attorney-client privilege or by an external investigator in conjunction with human resources.
Documenting findings and actions taken.
Maintaining a communication channel with the employee throughout the process.
Communicating with the employee that the investigation has concluded, sharing appropriate information considering the privacy of other employees and privilege considerations.
A well-handled response not only helps address and potentially resolve immediate concerns but also demonstrates the company’s commitment to compliance and transparency, reducing potential legal exposure.
Given the current fast-changing circumstances, now may be a good time for employers to review their complaint reporting procedures. An effective internal reporting system typically will be accessible, confidential and supported by a clear policy that outlines the process for handling reports and the protections available to employees.
How Should Employers Treat Whistleblowers?
Employers should not try to identify who made a report of an alleged violation of law to a governmental agency, particularly if the agency is then investigating the employer. That information is usually not necessary to respond to the report and could create additional risk for the employer.
If an employer knows who has made a complaint, then the employer should treat that employee with the same level of care it would afford its other employees. In particular, the complaining employee should not be held to a higher performance or behavior standard.
That said, making a complaint does not mean that an employee cannot be held to performance and behavior standards. Nor does making a complaint mean that an employee cannot be separated from employment for lawful reasons. However, as in many areas, employers would be wise to consult counsel before taking adverse action against an employee if the employee has recently complained that the employer has violated the law. This is so because many courts have held that close timing is enough to infer a retaliatory motive. Thus, employers should be very careful to show that it has a legitimate, non-retaliatory reason for separating an employee who it knows has complained (rightly or wrongly) of a violation of law, particularly if that complaint occurred close in time to when the separation will occur.
Next Steps for Employers
Employers should also consider regularly reviewing their policies and procedures to ensure ongoing compliance with applicable law. Reviewing policies and procedures with legal counsel can help identify areas of risk and ways to implement changes. By taking a proactive approach to compliance and employee relations, employers can create a positive work environment that supports both legal obligations and business objectives.
Finally, employers particularly impacted by the recent changes may want to consider offering training to managers by knowledgeable trainers who can explain these new laws and how they may change the way an employer operates.
Mississippi Foreclosure Basics
Lenders facing loan defaults on residential or commercial properties in Mississippi are often forced to pursue foreclosure measures if the default is not cured. Compared with other states, Mississippi has a relatively easy and streamlined foreclosure process for situations involving routine defaults with few complications. In more complex cases, Mississippi also affords lenders the right to pursue formal legal action through the filing of a complaint for judicial foreclosure. This article will provide a basic overview of each process, including some of the pros and cons of each.
Nonjudicial Foreclosure
The vast majority of foreclosures in Mississippi are conducted through the process of nonjudicial foreclosure, also known as “straight foreclosure.” Nonjudicial foreclosure is a relatively quick and easy process whereby a lender declares a default, accelerates the loan balance, and gives the borrower an opportunity to cure, typically 30 days. At the end of the 30-day period, if the borrower has not cured the default, the lender can move forward by transmitting, posting, and publishing a notice of foreclosure sale.
Prior to doing so, the lender will need to have title work performed on the property in question to determine if there are any uncured tax sales, encroachments, unauthorized conveyances, or other issues that need to be addressed. In most cases, the lender will also need to file a “Substitution of Trustee,” to designate a new trustee of the deed of trust to perform the foreclosure. Consequently, most foreclosure notices are captioned as “Substitute Trustee’s Notice of Sale.” Notice must be sent to the borrower, posted at the courthouse in the place commonly used for posting legal notices, and published in an authorized legal publication for the county where the property is located. Publication must be made once a week for three consecutive weeks, which has been defined as 21 continuous and uninterrupted days. For that reason, in practice, most foreclosure attorneys will run their notices in the local paper once a week for four weeks to ensure continuous presence of the notice for the statutory period.
On the date set for the sale, the foreclosing attorney and a lender representative should appear at the courthouse. Sales must be conducted between 11:00 a.m. and 4:00 p.m. on days the courthouse is open. In other words, a sale should not be set on a weekend or a recognized holiday. Most sales are conducted a few minutes after 11:00 a.m. Upon arriving at the courthouse, the attorney or the lender’s representative should pull the foreclosure notice from the posting board. The attorney or lender’s representative will also need to get the proof of publication from the local newspaper before or after the sale. The proof of publication must be attached to the substitute trustee’s deed in order to effectuate proper filing of the deed and conveyance of the property. Filing fees will vary, based on the number of notations that must be made in the margins to reflect proper recordation. Payment methods can also vary, so it is always advisable to have cash on hand if recording the deed in person.
After the sale, the lender has one year to file suit against the borrower for any remaining deficiency. The deficiency is calculated as the balance of principal, interest, attorneys’ fees, and costs of sale minus the foreclosure sale price. Entitlement to a deficiency is not automatic. Borrowers have certain defenses based on the commercial reasonableness of the sale, which involves examination of the sale price based on the appraised value and other factors. Under the case law, these types of defenses are not available to guarantors, at least in theory. Nevertheless, such issues are typically raised by guarantor defendants in post-foreclosure actions seeking to collect the balance. The one-year limitation on suing the borrower is also inapplicable to guarantors — again, at least in theory.
Judicial Foreclosure
Although Mississippi does not require judicial foreclosure, Mississippi law allows lenders to proceed by court action. A property conveyance made in conjunction with a judgment of judicial foreclosure should be accorded the highest level of insurability, because of the court decree associated with a finding that the lender has the right to foreclose, the resulting judgment granting the lender permission to do so, and the subsequent deed recorded. An extra level of assurance is also provided by the requirement of a post-sale report and approval by the court. The drawback to judicial foreclosures is that they are much more expensive and time-consuming than straight foreclosures. Thus, when the facts are straightforward, a straight foreclosure is preferable.
Judicial foreclosure comes into play when title work reveals an encroachment, an uncured interest, a matured tax sale, or some other cloud or issue that cannot be remedied through nonjudicial foreclosure. In addition, the judicial foreclosure process is valuable if there are problems with a property description, or problems with the documentation surrounding a loan. For example, if there is an error in the name of a party, a discrepancy in a maturity date, or a misdescription of the property in the deed of trust, a lender is well advised to file a complaint for judicial foreclosure coupled with a count for a declaratory judgment in order to cure such problems.
Judicial foreclosure complaints must be filed in the chancery court in the county where the property is located. The borrower and anyone else appearing in the chain of title whose interest will be affected must also be named. Borrowers have a right to defend against a judicial foreclosure action just as any defendant has a right to defend any sort of lawsuit filed against it. In most cases where the lender can show that money was loaned and that the property in question was intended to be taken as security for the loan, the lender can prevail. Problems arise when there is a fundamental disagreement over the scope of collateral, the particulars of a tract of property, whether payment was made, and those types of disputes. In addition, certain problems with deeds of trust are simply not curable (e.g., the omission of the beneficiary of the deed of trust) and must be dealt with in other ways.
Even if a borrower does not aggressively defend a judicial foreclosure action, the process can still be lengthy, even where the borrower defaults and the petitioning lender is entitled to seek a default judgment. In such cases, most chancery courts still require counsel and a lender’s representative to set the matter for hearing and to appear in court to make a record of the entitlement to relief in order to get the judgment of judicial foreclosure.
Obtaining that judgment is not the final part of the process, though. The judgment simply allows the lender to publish notice and conduct a sale in the same way as it would conduct a nonjudicial foreclosure sale. The judicial foreclosure process also requires the “special commissioner” (as opposed to the substitute trustee in nonjudicial foreclosures) to file a post-sale report with the court, to seek approval of the sale. Once that final order is entered, the special commissioner can prepare a deed to transfer the property and can apply the funds received at the sale.
Summary and Conclusion
The overview of each process set forth above is not a comprehensive guide to Mississippi foreclosure practice. It is merely intended to acquaint readers with the basics of each method and the issues that will be faced. As with any legal issue presented, it will be necessary to consult with counsel to ensure proper handling.
Still in the Dark After Loper Bright: SCOTUS Declines to Shine a Light on NLRB Deference Post-Chevron
Last year, the United States Supreme Court’s Loper Bright decision put an end to “Chevron deference,” a judicial practice of deferring to federal agency interpretations of ambiguous statutory language. While the legal blogosphere has spent considerable ink weighing the impact of Loper Bright, the Supreme Court recently rejected a pair of petitions on the amount of deference owed to the National Labor Relations Board (NLRB), casting an even longer shadow over Loper Bright. So, what can we learn from the Supreme Court’s inaction?
Differing Sources of Deference
Issued in 1984, Chevron created a “bedrock principle of administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute it administers.” According to Kent Barnett and Christopher J. Walker in Chevron in the Circuit Courts, Chevron was “one of the most cited Supreme Court decisions of all time.” Under Chevron, a court would first determine whether a statute clearly answered a particular question. If it did, the court would simply apply the statute’s answer. If the statute was “silent or ambiguous,” however, the court would defer to the interpretation of the federal agency charged with enforcing the statute if the agency’s interpretation was “based on a permissible construction of the statute.”
Loper Bright put an end to Chevron’s reign, however, holding that deference to an administrative agency violated the Administrative Procedures Act (APA) because courts and judges were supposed to interpret statutes unless a statute specifically reflected Congressional delegations of discretionary power to the federal agency. In other words, if Congress specifically delegated authority to agencies to promulgate regulations and relevant definitions, Loper Bright appeared to leave that deference intact. After all, in those situations, Congress, not Chevron, required courts to defer to agencies. If Congress did not make that delegation, however, a court, not the agency, was responsible for interpreting an ambiguous statute.
The NLRB is supposedly one of those agencies Congress tapped to promulgate regulations and relevant definitions for the NLRA. Indeed, the Supreme Court noted in Ford Motor Co. v. NLRB, years before Chevron, that Congress had made a “conscious decision” to delegate to the NLRB “the primary responsibility of marking out the scope of the statutory language.” Similar delegations to federal agencies exist in the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the recently passed Pregnant Workers Fairness Act and the PUMP Act.
So, Loper Bright should have little impact on the NLRB’s interpretation of the NLRA and other labor statutes, right? Not so fast. Reasonable minds, like the Sixth and Ninth circuits, might disagree.
Circuital Thinking
The Ninth Circuit’s Approach
The dispute started in the Ninth Circuit between a group of hospitals and their employees’ union. Per the collective bargaining agreement, the hospitals deducted union fees from participating employees if the employees executed a written assignment authorizing the deduction. After the collective bargaining agreement expired, the hospitals continued to deduct dues for several months but then stopped. They notified the union that they believed the written assignments violated the Taft-Hartley Act because the union’s assignments did not have specific language regarding revocability upon the expiration of the collective bargaining agreement.
The union filed an unfair labor practice charge, the NLRB filed a complaint, and an administrative law judge determined that the hospitals committed an unfair labor practice by unilaterally ending the practice of collecting union dues. After a series of decisions, the NLRB determined that the Taft-Hartley Act did not require specific language and found that the hospitals engaged in unfair labor practices. On appeal, the Ninth Circuit agreed with the NLRB’s decision.
After the Supreme Court issued Loper Bright, the hospitals petitioned the Supreme Court for a writ of certiorari, arguing that the Ninth Circuit improperly deferred to the NLRB’s interpretation of the NLRA instead of performing its own statutory analysis.
The Sixth Circuit’s Approach
The Sixth Circuit took a slightly different approach. There, a union and a road paving company began negotiating a collective bargaining agreement. When negotiations broke down, the union began picketing. As negotiations continued, the union requested information from the company regarding bargaining unit employees. However, the company did not provide that information, and the union filed unfair labor practices charge against the company based on picketing violations and the failure to provide that information. The NLRB brought a complaint, and an administrative law judge issued a decision finding that the company violated the NLRA by refusing to provide the employee bargaining unit information. The NRLB affirmed the administrative law judge’s decision.
On appeal, the Sixth Circuit, citing Loper Bright, declined to defer to the NLRB’s interpretation of the NLRA and decided to exercise independent judgment in deciding whether an agency acted within its statutory authority. Performing its own analysis, the Sixth Circuit affirmed the NLRB’s decision.
The company petitioned the Supreme Court for a writ of certiorari, arguing, in part, that the Sixth Circuit was required to defer to the NLRB’s interpretation of the NLRA pursuant to Loper Bright. The company also was seeking to challenge the president’s removal authority, and may have made its Loper Bright argument to sweeten the deal for Supreme Court review (since both the NLRB and Sixth Circuit reached the same result on statutory interpretation).
Supreme Inaction
Given these two apparently conflicting interpretations of Loper Bright, it seemed the Supreme Court was primed to clarify the appropriate approach. Was the Ninth Circuit correct in deferring to the NLRB’s analysis of the NLRA or was the Sixth Circuit correct in adhering to Loper Bright’s direction that it decide the meaning of ambiguous statute? At any rate, certainly a circuit split requires Supreme Court review?
Apparently not. The Supreme Court denied certiorari in both cases without any clarifying statement, leaving it unclear whether Loper Bright will impact NLRB or other agency decisions in the future. So, what does this mean? On one hand, in both cases the federal circuit courts ultimately affirmed the NLRB’s decisions, albeit after performing different analyses. Maybe the Supreme Court was unwilling to wade into these waters if both courts ultimately reached the correct decision. On the other hand, were these simply cases where the statutory text was unambiguous, such that agency interpretations were not even truly implicated?
Unfortunately, we’re left to wait until the next dispute. Perhaps time will tell, even if the Supreme Court won’t. In the interim, Bradley is available to answer any questions you might have regarding new administrative rules or decisions.
Listen to this article