Upholding State Exclusion of Planned Parenthood from Medicaid, and Three Other Split Decisions – SCOTUS Today
The U.S. Supreme Court decision yesterday that likely will get the most attention is Medina v. Planned Parenthood South Atlantic, in which a 6–3 Court that lined up according to the conservative vs. liberal stereotype, held that “Section 1396a(a)(23)(A) of the Medicaid Act does not clearly and unambiguously confer individual rights enforceable under 42 U.S.C. §1983.”
Medina v. Planned Parenthood South Atlantic
The question before the Court was whether individual Medicaid beneficiaries may sue state officials under §1983, the venerable civil rights statute, for failing to comply with the “any qualified provider” provision of the Medicaid law. Planned Parenthood South Atlantic operates two clinics in South Carolina, serving both Medicaid and other patients alike. Among the services it provides is performing abortions. In 2018, South Carolina, citing state law prohibiting public funds for abortion, expelled Planned Parenthood from the state’s Medicaid program. At the same time, the state took steps that it claimed would ensure that other providers would continue offering necessary medical care and family planning services. Planned Parenthood and a patient named Julie Edwards brought a class action suit, claiming that the exclusion of Planned Parenthood violated the any-qualified-provider provision of the statute by depriving her and others of their preferred providers of gynecological care.
Justice Gorsuch, writing for himself and the other five jurisprudential conservatives, noted that §1983 allows private parties to sue state actors that violate their “rights” under the federal “Constitution and laws.” “But federal statutes do not automatically confer §1983-enforceable ‘rights.’ This is especially true of spending-power statutes like Medicaid, where ‘the typical remedy’ for violations is federal funding termination, not private suits.”
While Congress sometimes allows private enforcement through §1983, spending-power legislation cannot predicate a §1983 enforcement suit unless Congress “speaks with a clear voice, and manifests an unambiguous intent to confer individual rights.” The requirement of “unmistakable” notice assures that grantees know that they might be subject “to private suits . . . whenever they fail to comply with a federal funding condition.” Here, citing other recent decisions, the Court concluded that the statute at issue did not clearly and unambiguously confer a “right to support a cause of action under §1983.”
The Court went on to note that this standard is a “demanding” and “significant hurdle” that will be cleared only in the “atypical case.” The Court also noted that, in the past, it had sometimes “taken an expansive view of its power to imply private causes of action to enforce federal laws.” Both Justice Thomas, concurring, and Justice Jackson (along with Justices Sotomayor and Kagan), dissenting, are aware of this history. Thomas cites it, urging that the Court go further in narrowing the application of §1983. Jackson would have the Court return to that lenient application, given the remedial intention of the post-Civil War legislation.
There is little question that the Medina decision will be controversial. Putting aside any discussion of which side of the Court might have the better of the argument, I note that this is another in a series of unrelated cases in which the Court is taking a narrow view of standing. We can expect to see comparable assertions of private rights of action and text-based oppositions to them coming up in areas far afield from reproductive rights, such as cybersecurity and data privacy.
Hewitt v. United States
Hewitt v. United States involves the application of the “First Step Act,” a federal enactment that eliminated a harsh provision of earlier law that required the “stacking” of 25-year periods of incarceration for first-time violators of 18 U.S.C. §924(c), a law that criminalized possessing a firearm while committing other crimes. Congress not only rejected the harsh stacking provision, but also made the statute’s more lenient penalties partially retroactive, providing that the statute applies if a sentence “has not been imposed” upon an eligible §924(c) offender as of the date of the First Step Act’s enactment.
The question presented concerned an “edge case,” asking, “What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post-resentencing?” The Supreme Court held that, under those circumstances, a sentence “has not been imposed” for purposes of §403(b).
Interestingly, the government agreed with the petitioners, so an amicus was appointed to defend the judgment of the U.S. Court of Appeals for the Fifth Circuit, which held (as the amicus and the dissent contend) “that §403(b) excludes any defendant who was sentenced prior to the enactment date of the First Step Act—even if his sentence was later vacated.” They argue that, because the statute applies only “if a sentence for the offense has not been imposed as of ” the First Step Act’s enactment date, and a sentence “has . . . been imposed” upon that defendant as a matter of historical fact,” the statute therefore does not apply.
However, Justice Jackson, writing for a majority that included, as to the key operative sections of the opinion, the Chief Justice and Justices Sotomayor, Kagan, and Gorsuch, concluded that, based on “the text of §403(b) and the nature of vacatur, . . . a sentence has been imposed for purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated.”
Justice Alito, joined by Justices Thomas, Kavanaugh, and Barrett, accused the majority of manipulating the language of the statute to reach a desired result. The majority, as one would expect, held that theirs was a literal reading of the actual text. An outside observer might suggest that Justice Kagan’s proclamation, several terms ago, that “we’re all textualists now” likely applies. However, that fact doesn’t guarantee that all the Justices will read a text in the same way.
Gutierrez v. Saenz
In contrast to several other cases discussed in this blog post, a somewhat lenient approach both to standing and to redressability under 42 U.S.C. §1983 governed the outcome in Gutierrez v. Saenz. Ruben Gutierrez, a convicted murderer who claimed that potentially favorable DNA evidence had been withheld by the state of Texas, filed suit under §1983 against Luis Saenz, the district attorney who has custody of the untested evidence. Gutierrez argued that Texas’s DNA testing procedures violated his liberty interests. The U.S. District Court for the Southern District of Texas agreed with him, “finding it fundamentally unfair that Texas gives prisoners the right to challenge their death sentence through habeas petitions but prevents them from obtaining DNA testing to support those petitions unless they can establish innocence of the underlying crime.” However, the Fifth Circuit disagreed, holding that Gutierrez lacked standing to bring his §1983 suit because his claimed injury was not redressable, since a declaratory judgment in his favor “would be unlikely to cause the prosecutor to ‘reverse course and allow testing.’”
In another split decision, the Supreme Court reversed, with Justice Sotomayor writing for herself, the Chief Justice and Justices Kagan, Kavanaugh, and Jackson, and with Justice Barrett concurring in the judgment, that Gutierrez has standing to bring his §1983 claim challenging Texas’s postconviction DNA testing procedures under the Due Process Clause. State court defendants “have a liberty interest in demonstrating [their] innocence with new evidence under state law. . . . For that reason, a state-created right to postconviction procedures can sometimes create rights to other procedures essential to realizing the state-created right.”
The majority opinion criticizes the dissenting opinions of Justice Thomas and Justice Alito, which Thomas and Gorsuch joined, as faultily addressing redressability by focusing on the declaratory judgment of the district court rather than on what Gutierrez was actually complaining about. Contrary to the lower court’s holding, which was dependent upon its belief that Gutierrez would be unable to demonstrate his innocence, the proper focus of the inquiry was Gutierrez’s complaint.
“First, to the extent the Fifth Circuit based its assessment of redressability on the declaratory judgment the District Court later issued, rather than Gutierrez’s complaint, it turned the Article III standing inquiry on its head. Gutierrez’s standing does not depend on the relief the District Court ultimately granted on the merits.” The proper focus of the standing inquiry should thus have been the complaint, which challenges not only Texas’s limitation to actual innocence claims, but also the other barriers erected to Gutierrez’s DNA testing as well. “Second, and more fundamentally, the Fifth Circuit erred in transforming the redressability inquiry into a guess about whether a favorable court decision will ultimately result in the prosecutor turning over the DNA evidence.” Its decision, therefore, was reversed, and the case remanded.
Riley v. Bondi
Another split decision was delivered in Riley v. Bondi, although the split here was somewhat different from those in some other of the Court’s most recent cases. Instead, a 5–4 Court, in an opinion by Justice Alito, joined in the operative part by Justices Sotomayor, Kagan, Gorsuch (who also dissented in part), and Jackson, with Justice Thomas separately concurring, held that an order from the Board of Immigration Appeals denying deferral of removal in a “withholding only” proceeding is not a “final order of removal” under 8 U.S.C. § 1252(b)(1). In other words, the 30-day filing deadline to challenge a final order of removal is a “claims-processing rule,” not a jurisdictional requirement.
The distinction between the two is important not just to immigration lawyers but to the rest of us as well. The consequences of miscategorizing a rule as jurisdictional can be very consequential with respect to the adjudication of cases in federal courts. Supreme Court precedent thus “shows reluctance to label rules ‘jurisdictional’ unless Congress clearly signals that intent. While Congress need not use ‘magic words’ to indicate that a rule is jurisdictional, . . . the Court’s recent decisions require an exceedingly strong signal for jurisdictional classification. That demanding requirement is not met here.” However, yielding to the government’s argument as to the outcome of the case, the lower court’s order as to jurisdiction was dismissed, and the case was allowed to proceed on remand.
As I’ve suggested previously, the end of the term is often characterized by a flurry of opinions, some significant (such as Medina), in which the Court is divided. In part, that relates to a “secretarial” problem occasioned by the circulation of multiple majority, concurring, and dissenting opinions and attempts by the Justices to harmonize their views, if possible. In any event, while Washington weather and the calendar indicate that summer is here, the Court’s summer hasn’t quite started.
All Things Chemical: First Six Months of the Trump Administration — A Conversation with James V. Aidala [Podcast]
This week, I was pleased to welcome back to the studio Jim Aidala, Senior Government Affairs Consultant at B&C and its consulting affiliate, The Acta Group (Acta®), to discuss the first six months of the Trump Administration. We have all been trying to take in and process the many Executive Orders, Presidential Directives, and other developments of all sorts coming out of the White House at a head-spinning pace, and assess their impacts on the industrial and agricultural chemical community and federal workforce. Jim is a keen observer of Presidential and executive level administrative action, having served as the Assistant Administrator of Toxics at The U.S. Environmental Protection Agency (EPA) and in other senior EPA leadership positions. We discuss Presidential actions, their impact on the EPA workforce, EPA actions to date, and a bit about the Make America Healthy Again (MAHA) Report’s “Make Our Children Healthy Again” Assessment and its impact on the pesticide community.
Department of State Announces New Screening and Vetting Requirements for F, J, and M Visas
On Monday, June 23rd, the Department of State began applying new, stricter screening and vetting requirements for F (student), J (exchange visitors), and M (training) visa applicants. The announcement ends the temporary suspension of visa processing for these visa categories. The suspension began last month while the Department developed and distributed new guidelines to consular officers for applying the updated standards to new visa applications.
A press release by the Office of the Spokesperson of the Department of State on June 18th, 2025 ties the new requirements to the need to identify applicants who are inadmissible to the United States, or who pose threats to U.S. national security based on conduct, advocacy, or support of activities considered potentially or actually harmful to U.S. interests and individuals.
Enhanced Screening Builds on Existing Policy and Procedures
All visa applicants, including those applying for F, J, and M visas are already subject to screening for possible grounds of inadmissibility, including support for/or involvement in terrorist or other criminal activity. Applicants have been required to provide their social media details since 2019, so the new standards represent a tightening of existing procedures rather than the implementation of new ones. For example, consular officers have reviewed social media presence for some time to identify applicants who may be working without authorization, based on posts and photographs in their social media profiles. However, the new guidelines expand the scope of the review of applicants’ online presence to include indicators of advocacy, aid or support for foreign terrorists and support of unlawful anti-Semitic harassment or violence, according to press outlets that have received a copy of a Department of State cable providing guidance to consular officers in implementing the new vetting requirements.
Because a considerable backlog of visa cases in these three categories has built up since the end of May, the guidelines reportedly instruct consular officers to prioritize visa applications for physicians applying for J exchange visas and for students looking to study at U.S. universities where international students constitute 15 percent or less of the total student body. How this instruction will be applied is unclear, but it may have considerable impact on applicants to some of the top educational institutions in the country, including Ivy League schools and top STEM and state research universities.
Impact on Consular Operations
Student visa adjudications during the busy summer months have been significantly delayed following the earlier pause in visa processing announced by the Department in May, and the new guidelines may delay visa processing, and possibly disrupt the travel plans of many visa applicants. The Department has not announced any new staffing increases to accommodate the new vetting requirements. Students, universities, and employers should prepare for delayed visa appointments, and increased administrative review for cases where any potentially incriminating activity is uncovered as a consequence of the stricter standards.
United Kingdom: UK Crypto Regulation: Regulated Activities
The UK is quickening the pace on the new crypto regulatory regime. The Financial Conduct Authority (FCA) published three papers in quick succession in May 2025: a discussion on key policy positions (DP25/1) and two consultations on detailed rules (CP25/14 and CP25/15). This blog focuses on DP25/1. Please see our upcoming separate blogs on the other proposals.
The FCA intends to regulate not only UK cryptoasset trading platforms but also certain non-UK overseas platforms. Any non-UK overseas cryptoasset trading platforms that service retail customers in the UK on a cross-border basis will need to get authorised by the FCA, and they will need to set up a UK physical presence in order to obtain authorisation. It is currently not clear in what circumstances an overseas crypto exchange would be considered to have retail customers in the UK – e.g. whether there would be look-through to the ultimate customers if the exchange itself services only institutional intermediaries which have underlying retail customers.
Cryptoasset intermediaries that buy/sell cryptoassets will also need to obtain authorisation. Further, if they wish to service retail customers, the cryptoasset in question must be admitted onto at least one UK authorised cryptoasset trading platform. This means the intermediary’s business model would depend on factors outside its control, i.e. whether there would be any authorised cryptoasset trading platform that happens to have the relevant cryptoasset listed on their platform. This could present significant challenges, particularly at the start of the regime where trading platforms themselves are also applying to get authorised.
While the FCA prefers to ban cryptoasset lending and borrowing for retail customers, it leaves the door somewhat open by also exploring an alternative – to allow retail access but with enhanced conduct rules on intermediaries (e.g. requiring assessment of customer creditworthiness). Given the importance of lending/borrowing in the current crypto ecosystem, an absolute ban on retail access may likely have significant consequences. It remains to be seen where the final determination will land.
For cryptoasset staking, one key proposal is to make the staking firm liable for failures of their third party service providers (e.g. those providing technology to the firm). This may potentially have significant impact on staking firms (e.g. they may need to reconsider their arrangements with third party service providers).
Workplace Risks Meet Holistic Legal Solutions – One-on-One with Adam Tomiak [Video]
How can today’s workplace challenges be addressed with strategies that are both legally sound and business-focused?
For general counsel and human resources (HR) executives, a holistic approach addresses legal, operational, and organizational risks to ensure advice is both comprehensive and actionable.
In this one-on-one interview, Epstein Becker Green attorney Adam Tomiak sits down with fellow attorney George Whipple. Adam discusses how his in-house experience shapes his ability to deliver thoughtful, practical solutions. Additionally, Adam explains how listening to clients, understanding their challenges, and integrating various risk factors all add up to legal strategies that align with business realities.
From creating robust compliance frameworks to responding effectively to high-pressure issues, Adam highlights key steps employers can take to balance diverse risks and safeguard their operations. This interview is an invaluable resource for general counsel and HR leaders looking to strengthen their organizations’ operations while staying ahead of legal complexities.
Pre-Award Bid Protests: Practical Tips for Government Contractors
One of the most powerful but often misunderstood tools available to government contractors is the pre-award protest. Unlike post-award protests, which generally challenge the outcome of a procurement, pre-award protests generally focus on the terms of the solicitation itself and/or the ground rules of the competition. When used strategically, a pre-award protest can help level the playing field and ensure that an agency’s solicitation is fair, lawful, rational, and does not unduly restrict competition.
Below, we explore what pre-award bid protests are, when to file them, and practical tips for contractors considering this important legal remedy.
What Is a Pre-Award Bid Protest?
A pre-award protest is a legal challenge filed before the government makes a contract award. These protests typically contest:
Restrictive, defective or ambiguous solicitation terms
Improper evaluation criteria
Unreasonable past performance requirements
Organizational conflicts of interest (OCI)
Failure to include mandatory clauses or procedures
Pre-award protests are most often filed with the Government Accountability Office (GAO), the U.S. Court of Federal Claims, or the procuring agency itself.
Timing Is Critical
The deadline to file a pre-award protest is usually before the closing date for receipt of proposals. At the GAO, protests based on patent improprieties in a solicitation must be filed prior to bid opening or the closing time for receipt of proposals. Waiting until after proposals are due may result in the protest being dismissed as untimely—even if the protest has merit.
Why File a Pre-Award Protest?
There are several strategic benefits to filing early:
Avoid Downstream Issues: A successful pre-award protest can force the agency to amend the solicitation, eliminating evaluation or eligibility flaws that might otherwise unfairly disadvantage a contractor.
Preserve Competition: Pre-award protests can push back on unduly narrow requirements that limit competition, potentially opening the door for more vendors.
Shape the Playing Field: Contractors may use pre-award protests to challenge problematic terms that favor incumbents or violate procurement law or regulation.
Practical Tips for Government Contractors
Review the Solicitation Early and Carefully: Assign internal or external counsel to examine every provision of the solicitation, especially evaluation criteria, past performance thresholds, and any special certifications.
Act Quickly: If an issue is identified, consult with counsel on strategy, consider engaging informally with the agency, and consider filing a protest before the proposal deadline. Remember, time is of the essence.
Document Concerns: Maintain clear records of communications with the agency and document any ambiguities or potential improprieties in the solicitation.
Engage Experienced Counsel: Pre-award protests involve nuanced legal and strategic decisions. An experienced government contracts attorney can assess the risks and benefits and draft a compelling protest.
Be Strategic, Not Combative: Pre-award protests are not personal—they are about ensuring a fair and lawful procurement. Maintain professionalism and clarity in all communications with the agency and in the protest itself.
Final Thoughts
Pre-award bid protests are a vital but underutilized tool in the government contractor’s arsenal—and, generally speaking, they are more likely to result in relief for the contractor than post-award protests. By identifying and addressing flaws in a solicitation before proposals are submitted, contractors can help ensure a fair procurement process and safeguard their competitive position. With proper legal guidance and strategic foresight, a pre-award protest can often prevent bigger problems down the line.
Summer of Women’s Sport: Protecting the Welfare of Female Athletes and Tackling Abuse
A big UK summer of women’s sport is upon us. Tennis kicked things off, with Tatjana Maria becoming the first woman since 1973 to be crowned champion at the illustrious Queen’s Club. Wimbledon is about to begin, quickly followed by the Women’s Euros, the home Women’s Rugby World Cup, and the Cricket World Cup, amongst other domestic and international sporting fixtures.
As excitement is building for the performances to come, expectation mounts for the potential impact this long sporting summer can have on the growth of women’s sport. While the increased spotlight on women’s sport is welcome, we are also reminded of the all-too familiar toxicity that must be navigated in the pursuit of these objectives. Fans of women’s sport have grown accustomed to greater access and insight into the lives of female athletes, many of whom use social media to raise their personal profile and that of their respective sport (and, in turn, to generate supplemental income). But such increased attention heightens the risk of targeted abuse, which often appears to be rooted in sexism and misogyny.
In the past few weeks alone, we have seen the threatening messages tennis that star Katie Boulter regularly receives[1] and heard from England’s Lioness players who are choosing to avoid social media during the Euros due to damaging online abuse becoming the norm.[2] World Rugby has announced that it is stepping up protection of female players, including by tackling abuse that has already been detected ahead of the World Cup.[3] There are also many examples of female family members (and children) of male athletes being the targets of similar abuse.[4].
Sadly, abuse is not confined to the online realm, as the recent chilling experiences of Emma Raducanu exemplify. Security provisions for the forthcoming Wimbledon Championships reportedly have come into sharper focus this year, and have already blocked from the public ballot a man who was given a restraining order for stalking Ms Raducanu. An estimated 1,000 personnel are expected to support security efforts across the Championships, including police and military personnel, fixated threat specialists and behavioural experts who are trained to spot strange behaviour.[5]
In this context, we reflect on the discussion and learnings from the panel discussion on Protecting the Welfare of Female Athletes and Confronting Misogyny at the second Squire Patton Boggs Women’s Sport Symposium, which took place earlier this year. The panel focussed on the themes of safeguarding, welfare, misogyny and abuse in women’s sport, providing insight from expert speakers Yvonne Nolan (General Counsel, World Rugby), Dr. Emma Kavanagh (Associate Professor in Sport Psychology and Safe Sport, Bournemouth University), Gary Bye (Former Safeguarding and Player Care Manager, International Tennis Federation) and Georgia Relf (Sports Account Manager, Signify), moderated by Dr. Katie Smith (Associate, Squire Patton Boggs).
Broadening Scope of Safeguarding
The IOC consensus statement on safeguarding and interpersonal violence in sport[6] is demonstrative of the shift away from safeguarding being focused solely on children and vulnerable adults. There is a wider notion of safe sport. This is for all in the ecosystem, meaning athletes of all ages and levels but also family members, officials, coaches, staff and volunteers, and fans. This broadening is important but brings its own challenges to sports governing bodies and other stakeholders to ensure that appropriate steps are taken to protect the welfare of those categories of individuals.
In turn, there is a recognition that support across a broader range of areas is required. This was highlighted in the expanded definition of Duty of Care promoted and explored in Baroness Tanni Grey-Thompson’s 2017 Independent Report to Government: “covering everything from personal safety and injury, to mental health issues, to the support given to people at the elite level.”[7] Increasingly, there is a need to consider threats from the online arena, with athletes and others involved in sport becoming the targets of abuse on social media platforms.
In terms of women’s sport, there are the additional factors of sexism and misogyny at play. These are societal problems that find their way into sport, with hatred and contempt for women being displayed through abusive behaviours in both physical and virtual spaces. Dr Kavanagh considers that such behaviours as forms of gender-based violence and has co-authored studies investigating the subculture of misogyny within women’s football[8] and gender-based violence targeting high-profile women in tennis.[9] Abuse often targets female athletes’ physical appearance or other personal attributes, with notable correlation to betting activity (i.e. gamblers who have lost bets).[10]
Prevention, Support and Response
Safeguarding in sport is about risk. To prevent harm occurring, sports must properly assess that risk and have wide-ranging and effective policies and procedures that are implemented at all levels. To ensure that such policies are appropriately tailored and strictly adhered to can be a challenge for international governing bodies with member associations, athletes and other stakeholders in various different jurisdictions.
Sports governing bodies and athletes themselves are increasingly investing in services such as those offered by Signify, an ethical data science company, in order to identify the problems, investigate and take action. In addition to internal disciplinary and other regulatory processes, there are legal actions (both civil and criminal) that can be taken against those responsible for abuse, including private prosecutions, defamation claims, injunctions to prevent harassment, and non-molestation orders.
Sports must ensure that easy access to reporting is available, with both formal and informal channels open, providing victims with the best possible chance of reaching out for help and preventing further harm. Education is also important so that athletes are fully prepared and can identify risks and low-level behaviours before they escalate. This would include training for content creators around the risks associated with social media, which is especially important for female athletes who are looking to build and exploit their personal brand. Women’s sport teams and athletes are dominating digital platforms,[11] providing important opportunities for growth, income and investment, but it must also be recognised that this profile-raising could leave individuals more exposed to abuse.
Importance of supporting female athletes
When athletes are not kept safe, there is an impact on performance. The potential harmful effects are shown by recent examples, such as Khadija ‘Bunny’ Shaw withdrawing from the Manchester City Women FC squad after suffering misogynistic and racist abuse,[12] and Emma Raducanu, who stated how she “couldn’t see the ball through tears… [and could] barely breathe” after being targeted by a stalker who “exhibited fixated behaviour”.[13]
As articulated in Baroness Tanni Grey-Thompson’s Report,
“The success of sport, in terms of helping people achieve their potential, making the most of existing talent, and attracting new people to sport relies on putting people- their safety, wellbeing and welfare- at the centre of what sport does.”
This feeds into what Baroness Karen Carney described as the “virtuous cycle” in the context of women’s football:
“Meaningful progress in these areas are crucial in catalysing the virtuous cycle of investment which can support the organic growth of women’s football. As players are nurtured and developed in an increasingly elite performance and welfare environment, on pitch standards will continue to improve, bringing in larger audiences and unlocking new investment from broadcasters and commercial partners.”[14]
At this important time for the growth and commercialisation of women’s sport, it is in everyone’s interests for standards in these areas to be developed and prioritised.
Ideas for the future
The panel also explored improvements that could be made in this area. Better intelligence-sharing both within and across sports is at the top of the list. This would seek to (i) disrupt bad actors moving around a sport in different roles and jurisdictions and between different sports; and (ii) allow best practice to be shared and work for the benefit of all. Support is also needed from those outside of sport, for example social media companies, to assist in identifying wrongdoers and preventing further abuse. Such efforts would of course benefit athletes of all genders, and the authors note that issues of abuse do not solely impact women (although gender can play a role in how abuse manifests).
Sport has a real opportunity to work together and join forces in tackling these societal issues, ensuring that women are protected, supported and allowed to flourish.
[1] Katie Boulter: British tennis player reveals social media abuse she has received – BBC Sport
[2] Alessia Russo: ‘Social media could be really damaging during Euros’ – BBC Sport
[3] World Rugby to protect players and combat online abuse at Women’s Rugby World Cup England 2025 through extended partnership with Signify Group | World Rugby
[4] For example: https://www.bbc.co.uk/sport/football/articles/c1kmn7jjvkjo and https://www.bbc.co.uk/sport/football/articles/cr4zzn412gyo
[5] https://www.bbc.co.uk/sport/tennis/articles/c74zjj14xvyo
[6] IOC consensus statement: interpersonal violence and safeguarding in sport | British Journal of Sports Medicine
[7] Microsoft Word – 170419 Duty of Care Review – Final version .docx
[8] Full article: Women’s football subculture of misogyny: the escalation to online gender-based violence
[9] Sporting Women and Social Media: Sexualization, Misogyny, and Gender-Based Violence in Online Spaces in: International Journal of Sport Communication Volume 12 Issue 4 (2019)
[10] https://www.bbc.co.uk/sport/tennis/articles/cj42rvdk2k4o
[11] https://www.womenssporttrust.com/domestic-sport-and-interest-in-female-athletes-experience-continued-growth/
[12] Bunny Shaw: Manchester City striker withdraws from League Cup semi-final squad after suffering racist and misogynistic abuse | Football News | Sky Sports
[13] Emma Raducanu says she ‘couldn’t see the ball through tears’ in Dubai stalking incident and says it ‘could have been dealt with better’ – BBC Sport
[14] Raising the bar – reframing the opportunity in women’s football – GOV.UK
Florida Passes Major Reforms for Community Associations
Florida’s most recent legislative session introduced a series of changes impacting condominium and cooperative associations aimed at increasing transparency, accountability, and safety.
Stricter Licensing Rules for Community Association Managers
Community association managers (CAMs) are now required to maintain an active license with the Department of Business and Professional Regulation (DBPR), which includes keeping their information up to date regarding the associations and firms they represent.
If a CAM’s license is revoked, they are prohibited from owning or working for a management firm for a period of ten years. Associations must verify that their CAMs are appropriately licensed and in good standing, marking a notable shift in compliance duties at the board level.
Expanded Building Safety and Reserve Oversight
The legislation reinforces requirements for milestone inspections and structural integrity reserve studies (SIRS). Associations must complete their first SIRS by December 31, 2025, and include a funding plan to support long-term structural needs.
Boards may pause or redirect reserve contributions in specific emergencies or inspections, but only with membership approval and in accordance with new statutory procedures. Board members must also sign an affidavit acknowledging receipt of completed SIRS, reinforcing their fiduciary responsibility.
New Standards for Meetings and Records
Operational procedures have also been modernized. Boards may now meet by video conference, but must follow new rules regarding meeting notice, access, recording, and retention of materials. Video recordings must be preserved as official records for a minimum of 12 months.
Additional changes to accounting and insurance appraisal requirements aim to ensure associations are appropriately documented and insured. By October 1, 2025, associations must also maintain an online account with the DBPR containing essential building, governance, and financial information.
Reserve Funding and Investment Options
The threshold for capital repairs requiring funding has increased from $10,000 to $25,000, with future adjustments tied to inflation. For items identified through a SIRS, funding must follow a baseline plan that ensures long-term adequacy.
Funding can be obtained through assessments, loans, or lines of credit, subject to member approval. Boards now have greater flexibility to invest reserve funds in insured financial institutions with a membership vote, provided that investments are made with sound judgment.
These updates aim to give boards stronger financial tools and greater responsibility in safeguarding the association’s long-term stability.
Nolan Thomas contributed to this article
FDA Requesting Comments on Proposed Guidance Regarding 510(k) Transfers
On June 5, 2025, the U.S. Food and Drug Administration (“FDA”) issued draft guidance (the “510(k) Transfer Guidance”) related to the transfer of a Premarket Notification (510(k)) Clearance. The 510(k) Transfer Guidance discusses the FDA’s recommendations on handling the purchase, sale, or other transfer of a medical-device 510(k) clearance, and requests public comments. Stakeholder comments are due by August 4, 2025. Stakeholders submitting comments should consider the 510(k) Transfer Guidance from both a regulatory and transactional perspective.
The 510(k) Transfer Guidance reiterates that, under section 510(k) of the Federal Food, Drug, and Cosmetic Act (“FD&C Act”), and 21 C.F.R. Part 807, a person who introduces a non-exempt device into U.S. commercial distribution for the first time must obtain a 510(k) clearance; once obtained, that person becomes the singular “510(k) holder” for the device. Because only one entity can be the 510(k) holder at any given time, the transfer or sale of clearance does not create multiple holders; instead, it shifts holder status to the transferee.
The 510(k) Transfer Guidance clarifies that a transferee generally does not need to submit a new 510(k) if the underlying device has not undergone significant changes or modifications in design, components, manufacturing method, or intended use. Instead, the new holder must satisfy certain post-transfer administrative obligations, including updating the registration and listing information in the FDA establishment registration database. In the transaction context, companies should consider whether any manufacturing, supplier or other technical changes as part of the transaction warrant submission of a new 510(k), and whether these processes, or associated timing considerations, merit submitting comments for consideration by FDA.
Importantly, the 510(k) Transfer Guidance also emphasizes the importance of updating the Global Unique Device Identification Database (GUDID) when information such as the labeler’s name changes. These types of updates are similarly important in the transaction context, as labeling changes can take time and require planning. Failure to properly register, list, or update required GUDID information may render a device adulterated or misbranded.
Finally, the 510(k) Transfer Guidance distinguishes the responsibilities of various entities in the device supply chain, specifying which entities can use a 510(k) holder’s 510(k) number to list a device. Contract manufacturers, contract sterilizers, repackagers, and relabelers must use the cleared 510(k) number when listing, whereas initial importers may satisfy listing obligations by identifying the foreign manufacturer if they neither relabel nor repackage the device. The 510(k) Transfer Guidance emphasizes that, generally, the specification developer, not the contract manufacturer, is responsible for submitting the 510(k).
Courtside With Women’s Sports: NIL, Women’s Collegiate Athletes, And the Law
I’ve been listening to Deja Kelly’s fascinating podcast, NILosophy. Kelly is a lights-out women’s basketball player, and a talented broadcaster. She and her guests – often but not exclusively young women – discuss the changing college sports world under NIL. And many times during these interviews, I have been struck by how quickly these young athletes have to grow up, and the sophisticated adult decisions they are called upon to make.
Many of these decisions have legal implications, but very few collegiate athletes have any legal training. Therefore, I wanted to use this post to highlight some common scenarios where athletes may benefit from legal advice in a NIL collegiate world.
This is particularly true for female college athletes, since they are less likely to participate in direct revenue-sharing at high levels, and equally if not more likely to find outside NIL deals.
First, I’d like to note that traditional practicing lawyers are not agents (although many agents actually are lawyers, though often not actively practicing law). Sports agents typically focus on securing commercial opportunities for their athletes. Attorneys, on the other hand, protect and secure their clients’ legal rights.
Attorneys are also different from financial advisors, whose focus is generally on the strategic investment of client funds. However, attorneys can provide an independent check on agents and/or investment advisors, and have heightened confidentiality and fiduciary duties to their athlete clients. Moreover, most sports attorneys bill by the hour, rather than taking a percentage of their clients’ earnings. Consequently, a contract review or similar analysis can be accomplished in a short amount of time, confidentially, with maximum benefit to the client.
Below is a short list of issues that collegiate athletes may face, which might benefit from legal advice. In short, legal issues are often confronted any time a large amount of money comes in or goes out of an athlete’s portfolio, as follows:
NIL agreements – including fully understanding the athlete’s obligations and the meaning of potentially murky reputational or behavioral clauses;
Agent or investment advisor agreement review – including ensuring that the costs to the athlete are standard, market, and fair;
Transfer opportunities – including understanding their impact on existing revenue-sharing and NIL agreements;
IP branding, trademark, and other protections – including protecting words, logos, and phrases associated with the athlete;
Cease and desist letters – to curb unwanted or defamatory online activity;
Immigration issues – for athletes and their families, including ensuring that athletes can legally be compensated for play in the United States;
Business formation – athletes are businesspeople! Attorneys can assist with setting up business entities to maximize earnings and minimize potential liability;
Real estate purchases – these are inherently legal agreements; athletes should be well protected;
Other large purchases or sophisticated investments;
Gifts to family members, etc. – including making sure that they comply with applicable tax laws;
Charitable foundation formation, partnerships, and assets – athletes often want to give back to their communities, but need to be legally protected while doing so;
Sports camps – athletes often run sports camps for youth in their communities, but also need to ensure they are legally protected from accidents, etc.
New Jersey Bill Would Introduce Sweeping Noncompete and No-Poach Restrictions: Strategic Implications for Employers
As anticipated, New Jersey has joined the growing list of state legislative efforts aimed at prohibiting or restricting the use of noncompetes and no-poach agreements.
On May 22, 2025, the New Jersey Legislature introduced S4385/A5708 (the “Bill”), a comprehensive proposal that, if enacted, would significantly limit the enforceability of noncompetes and ban no-poach agreements in New Jersey. The Bill is currently pending in the Senate Labor Committee, but its potential impact on business operations, talent strategy, and contractual practices is already drawing close attention from legal and executive leadership.
The Bill broadly prohibits an “employer,” defined to include business entities, nonprofit organizations, and public sector employers, from seeking, requiring, or enforcing a noncompete or no-poach agreements with a “worker.” The term “worker” includes non-senior employees and executives, independent contractors, volunteers, externs and interns, apprentices, and sole proprietors, without regard to compensation status or classification under state or federal law.
Noncompetes: Unenforceable Except as To Senior Executives In a Policy-Making Position
If passed, the Bill would render most existing “non-compete clauses” with a worker who is not a “senior executive” as unenforceable, and after the effective date, it would prohibit an employer from seeking or requiring a worker who is not a senior executive to execute a noncompete. Thus, if enacted into law, the Bill would apply both retroactively and prospectively, thereby prohibiting the enforcement of all noncompetes with limited exceptions. Additionally, employers would be required to notify their workers within 30 business days of the law’s effective date that their noncompete is no longer valid or enforceable. The notification would need to be provided in a “clear and conspicuous” manner and delivered electronically or in-person.
The Bill defines a “non-compete clause” as “any agreement arising out of an existing or anticipated employment relationship between an employer and a worker, including an agreement regarding severance pay, to establish a term or condition of employment that prohibits the worker from, penalizes a worker for, or functions to prevent or hinder in any way, the worker from seeking or accepting work with a different employer after the employment relationship ends, or operating a business after the employment relationship ends.” Thus, the Bill presumably does not prohibit employers from enforcing, or entering into, other restrictive covenants, such as customer non-solicitation agreements, employee non-solicitation agreements, or confidentiality/non-disclosure agreements.
The Bill would provide a limited exception for existing non-compete clauses with “senior executives,” defined as an individual in a “policy-making position” who earned at least $151,164 in the previous year. The compensation threshold includes salary, commissions, and bonuses, but excludes board, lodging, or other fringe benefits. “Policy-making position” is defined as “a business entity’s president, chief executive officer or the equivalent, any other officer of a business entity who has policy-making authority, or any other individual who has policy-making authority for the business entity similar to an officer with policy-making authority. An officer of a subsidiary or affiliate of a business entity that is part of a common enterprise who has policy-making authority for the common enterprise may be deemed to have a policy-making position for purposes of this paragraph.”
If passed, the Bill would prohibit non-compete clauses for all workers, including senior executives, entered into after the effective date.
If a noncompete with a senior executive exists prior to the Bill’s effective date, any such noncompete would need to satisfy several stringent conditions to be enforceable, including but not limited to:
The employer shall disclose the terms of the non-compete clause in writing to the worker not more than 30 business days after the effective date, as well as “all revisions made in the provisions of the non-compete clause necessary for compliance with the requirements of this section.” If the non-compete clause is revised, the revised non-compete clause must be signed by the employer and the worker, and the disclosure shall expressly state that the worker has the right to consult counsel prior to signing.
The clause is narrowly tailored to protect legitimate and related business interests, including the employer’s trade secrets or other confidential information.
The restricted period must not exceed 12 months post-termination.
The restriction must be reasonable in geographic reach and limited to geographic areas where the executive had a material presence during the two years preceding termination, and the geographic reach shall not prohibit the worker from seeking employment in other states.
The clause is limited to services provided by the worker during the previous two years of employment.
The non-compete must not penalize a worker for challenging the validity or enforceability of the noncompete.
The noncompete cannot contain a choice-of-law clause that has the effect of avoiding the requirements of the Bill.
The worker must not be required to waive any substantive, procedural, or remedial rights provided under the act, any other act or regulation, or the common law.
The noncompete must not restrict a worker from providing a service to a customer or client of the employer, if the worker does not initiate or solicit the customer or client.
The noncompete shall not be unduly burdensome on the worker, injurious to the public, or inconsistent with public policy.
The noncompete states that it shall be void if the employer does not provide written notice to the worker of the employer’s intent to enforce the non-compete clause within 10 days after the termination of an employment relationship between the employer and the worker, but the notice is not required if the worker has been terminated for “misconduct.” The Bill defines “misconduct” as conduct that “is improper, intentional, connected with the individual’s work, within the individual’s control, not a good faith error of judgment or discretion, and is either a deliberate refusal, without good cause, to comply with the lawful and reasonable employer rules made known to the worker, or a deliberate disregard of standards of behavior the employer has a reasonable right to expect, including reasonable safety standards and reasonable standards for a workplace free of drug and substance abuse.”
The noncompete provides that during any period after the employment relationship ends in which the worker is prevented from engaging in work or taking employment because of restrictions imposed by the non-compete clause, the employer, unless the worker is terminated for misconduct or there is a breach by the worker, shall pay the worker an amount equal to 100 percent of the pay to which the worker would be entitled for the work during that period; and make any benefit contributions needed to maintain the fringe benefits to which the worker would be entitled during that period.
Any noncompete that fails to meet these standards would be deemed void. Furthermore, any noncompete made with a senior executive after the Bill’s effective date will be deemed unenforceable.
As with similar legislative efforts in other states, the Bill provides an exception for noncompetes in connection with the bona fide sale of a business, ownership interest, or substantially all operating assets. It also allows for the enforcement of a noncompete where a cause of action arose before the Bill’s effective date.
No-Poach Agreements: A Violation of Public Policy
In addition to restricting noncompetes, the Bill explicitly declares no-poach agreements to be contrary to public policy and that “any no-poach agreement shall be void.” The Bill defines a “no-poach agreement as “any agreement between employers or between an employer acting as a contractor and any legal person acting as a contractee that restricts or hinders the ability of an employer to hire, or contract for the services of, a worker, or hinders a worker from obtaining employment.”
The Bill provides a private right of action for workers subject to or affected by a noncompete or a no-poach agreement. If passed, the Bill would enable workers to sue for injunctive relief, liquidated damages of up to $10,000, lost compensation, and attorneys’ fees. In addition, employers would be required to post a copy of the statute or an approved summary in a prominent workplace location. Repeated violation of these obligations may result in fines of up to $10,000.
Takeaways
While the Bill’s fate remains uncertain, its introduction reflects the continuing legislative trend aimed at restricting the use of noncompetes. Although on its face, the New Jersey Bill appears to allow for some exceptions to the use of noncompetes, in practicality, the Bill would not protect against unfair competition if passed as presently drafted. As one example, if a candy company employed a top executive in New Jersey with access to its secret formula to an everlasting gobstopper, and that executive sought employment with a rival candy company but that position was in New York, then presumably the noncompete would be unenforceable under the Bill because a senior executive could seek employment in another state. As written, the Bill’s exceptions are in name only and if the Bill is enacted would place New Jersey in largely the same position as only four other states that ban noncompetes (California, Minnesota, North Dakota, and Oklahoma).
New Jersey businesses and those employers with employees located in New Jersey should stay tuned for updates here on New Jersey because, if the Bill is passed, employers would be required to both identify their senior executives and amend their noncompetes with their senior executives. New Jersey employers would also need to prepare and send notices regarding any existing noncompetes with workers who are not senior executives.
Employers should remain attentive to developments and consider proactive legal review of their noncompetes and other restrictive covenants, particularly those employers with operations in multiple states.
Ariana Tagavi contributed to this article
Colorado Enhances Wage Enforcement Measures
Colorado has taken another significant step to combat wage theft and worker misclassification with the enactment of House Bill 25-1001 (HB25-1001), which amends Colorado’s chief wage statute, the Colorado Wage Act.
The legislation significantly strengthens enforcement mechanisms and increases financial penalties for employers that misclassify workers as independent contractors. However, the legislation also offers a reprieve to employers who promptly pay wages owed following receipt of a formal demand filed with the Colorado Department of Labor and Employment (CDLE), Division of Labor Standards and Statistics (DLSS).
The new law is part of Colorado’s broader initiative to close wage enforcement gaps and protect employees while allowing employers a path to remedy violations without automatically facing steep fines.
Quick Hits
Colorado’s HB25-1001 significantly increases penalties for employers that misclassify workers as independent contractors, with fines up to $50,000 for repeated violations.
The new law provides a safe harbor for employers, allowing them to avoid automatic penalties if they pay owed wages within fourteen days of a formal complaint filed with the Colorado Department of Labor and Employment (CDLE).
HB25-1001 expands the CDLE’s jurisdiction to investigate wage claims up to $13,000 and mandates public disclosure of certain wage violations, enhancing transparency and enforcement.
Steeper Penalties for Worker Misclassification
Employers that misclassify employees as independent contractors will now face increased liability. Specifically, beginning January 1, 2028, an employer that misclassifies a worker in a way that impacts the employer’s obligation to pay wages or reporting obligations at the federal, state, and local levels may face the following penalties:
$5,000 fine for a willful violation
$10,000 fine if the violation is not corrected within sixty days of a determination by the CDLE
$25,000 fine for a second or subsequent willful violation within five years
$50,000 if a second or subsequent willful violation is not corrected within sixty days
These penalties are available in addition to, and not in lieu of, potential liability and fines that often arise from the misclassification of workers, such as unpaid wages and overtime, rest breaks, and sick leave violations. The director of the CDLE will adjust these fines on January 1, 2028, and every other year thereafter.
Safe Harbor: A Lifeline for Employers
Under the Wage Act, an employer is liable for automatic penalties if it fails to pay all wages owed within fourteen days of receipt of a written demand for unpaid wages. For nonwillful violations, the penalty is the greater of twice the unpaid amount or $1,000. For willful violations, the penalty increases to the greater of three times the amount owed or $3,000.
Prior to the amendments, automatic penalties applied no matter how the employee tendered a wage payment demand, even if tendered via an informal method such as an email or text message. However, under the amendments, the DLSS may waive the automatic penalties if an employer remits payment for the full amount of wages owed within fourteen days of receipt of a formal wage complaint filed with the DLSS. This safe harbor applies even if the employee had previously tendered informal, internal written wage payment demands. This provision promotes swift resolution of wage disputes after formal filing without penalizing employers that promptly rectify the issue.
Limited Availability of Attorneys’ Fees for Employers; Expanded Remedies for Employees
Prior to the amendments, an employer could recover attorneys’ fees and costs associated with defending a claim for unpaid wages if the employee recovered less than the amount the employer tendered. Now, under the amendments, an employer may only recover attorneys’ fees and costs if the court finds that the employee’s claim(s) for wages lacks substantial justification.
While the amendments raise the standard for recovery of attorneys’ fees and costs for employers, it expands the remedies available to aggrieved employees. An employee bringing a claim under Colorado’s wage and hour statutes and regulations may now pursue equitable relief, including back pay, reinstatement of employment or front pay, injunctive relief, compensatory damages, and a penalty of $50 per day for each employee and each day of violation, to deter future violations and prevent unjust enrichment.
Expanded Agency Jurisdiction
The amendments expand the CDLE’s jurisdiction to investigate and adjudicate complaints of unpaid wages. Previously, the CDLE’s jurisdiction was limited to claims for unpaid wages of $7,500 or less. Beginning July 1, 2026, this amount is increased to claims for unpaid wages of up to $13,000. Beginning January 1, 2028, the director of the CDLE will increase the CDLE’s authority annually by at least $1,000.
In addition, HB25-1001 now requires the DLSS to publicize citations, rulings, and written findings related to Wage Act violations on the CDLE’s website. The publications must identify the name of the employer and specify whether the violation was willful. Furthermore, the DLSS must report employers incurring a willful violation that is not remedied within sixty days to a government licensing authority with authority to limit or impose conditions on an employer’s license, registration, or permit, which may lead to suspension, restriction, or revocation of the same. Likewise, the DLSS may, but is not required to, report any employer that is found to have violated a wage and hour law to a government body with the power to deny, revoke, or restrict an employer’s license.
Expanded Definition of ‘Employer’
The amendments expand the definition of “employer” under the Wage Act to include individuals with at least 25 percent ownership or control of a business unless the individual has delegated all authority to manage day-to-day operations.
Enhanced Retaliation Protections
Under the Wage Act, an employer may not retaliate against an employee or worker for engaging in protected activity, which includes filing a wage complaint or testifying or providing evidence in a proceeding relating to a violation of the Wage Act. The amendments expand protected activity to include good faith complaints about compliance with wage and hour laws and providing information regarding rights and remedies under wage and hour laws.
In addition, the amendments expand potential remedies for an individual who has been retaliated against under the Wage Act. In addition to back pay, the wages withheld, interest, penalties, liquidated damages, and attorneys’ fees and costs, an aggrieved individual may now also recover compensatory damages for economic and noneconomic losses stemming from the retaliation.
Finally, the amendments require a fact finder consider the temporal proximity between the protected activity and the adverse action in determining whether retaliation occurred. A period of ninety days or less may be sufficient to establish retaliation.
Ultimately, employers may want to closely monitor compliance with Colorado’s strict wage and hour laws to avoid facing steep penalties and exposure to wage and retaliation complaints. However, the new provisions allowing for penalty waiver if payment is made within fourteen days of formal DLSS wage complaints come as welcome relief for employers struggling with how to handle internal, informal wage demands.