Administrative & Regulatory – Page 21

Backwards Down the Number Line: Assessing the State of Alabama’s Medical Cannabis Program Four Years After Its Enactment

Ronald Reagan famously asked voters, on the eve of the 1980 presidential election, to ask themselves whether they were better off than they were four years ago. It was a powerful question that asked Americans to take stock of how they saw their lives at that time versus four years before.
When it occurred to me recently that almost four years have passed since the enactment of Alabama’s medical cannabis program, it took me back. I decided to scroll through the pictures on my phone from the Spring of 2021 – seeing pictures of my family in earlier times with different haircuts and different perspectives on life – and I found myself feeling like the Kodak executives must have felt when Mad Men’s Don Draper (played perhaps in only the way Jon Hamm could play him) first introduced them to The Carousel.
“Nostalgia,” Don said, “literally means ‘the pain from an old wound… It’s delicate, but potent… It takes us to a place where we ache to go.”
So perhaps this is my meditation on nostalgia, through the lens of the Alabama medical cannabis program.
Where Are We Now?
So here we are, four years later. And I ask myself whether Alabama’s medical cannabis program is better off than it was four years ago. The easy answer is, of course, no. After all, not one Alabamian has received legal medical cannabis in that time. How, one could reasonably ask, is that possible?
I’m reminded of the lyrics from the title of this post:
Laughing all these many years
We’ve pushed through hardships, tasted tears
We made a promise one to keep
I can still recite it in my sleep

While many might find it hard to find laughter in what has transpired over these years (unless you have a particularly perverse sense of humor, in which case the author requests the privilege of a beer soon), we have certainly pushed through hardships and likely shed tears. But there are many of us committed to keeping a certain promise, one that I can recite in my sleep: Alabama will provide medical cannabis to patients with qualifying conditions who can benefit from that medicine.
How Did We Get Here?
To determine where we are, we need to know where we came from. Ah, the salad days of 2021. The sky was the limit. Patients were going to finally access medicine they had sought for years. Operators saw opportunities to help (and make a dime at the same time). Lawyers, including the author, were in high demand, and the conversations were cutting edge and exciting. Heady times, indeed.
Alabama became the 36th state to allow cannabis for medical use when Gov. Kay Ivey signed into law the Darren Wesley ‘Ato’ Hall Compassion Act on May 17, 2021. The act established a process through which applicants would compete for a limited number of licenses in the following categories: (1) cultivator; (2) processor; (3) dispensary; and (4) “integrated facility” (which can cultivate, process, transport, and dispense medical cannabis under one license), as well as a to-be-determined number of licenses for secure transporters and testing laboratories. A Medical Cannabis Commission was established to license and regulate the medical cannabis program, with input from the Alabama Department of Agriculture and Industries on cultivation matters.
Many assumed – based on the statutory requirements that the commission accept licenses by September 1, 2022, and that the commission make a decision within 60 days – that licenses would be awarded late that year. Others, including the author, assumed that licenses would be awarded by the commission in early 2023. I’m wrong about things probably every day of my life, but I might not have been more wrong in my life than I was about that assumption.
Rather than require applications to be submitted on September 1, 2022, the AMCC set out a detailed timeline for the application and license awarding processes. The key takeaways:

Applicants could “request” a “License Application Form” from the commission between September 1 and October 17.
The deadline for submitting applications was December 30.
The commission intended to issue licenses on July 10, 2023.

All 94 applicants who submitted an application by the December 30, 2022, deadline received a deficiency notice of some kind, and applicants were provided an opportunity to cure those deficiencies. The University of South Alabama was assigned with the responsibility of leading the efforts to grade the applications.
On June 12, the AMCC announced its intent to issue 21 licenses to cultivators, processors, dispensaries, secured transporters, laboratory testing facilities, and integrated facilities.
In a shocking development, only four days later, the Alabama Medical Cannabis Commission voted to stay all proceedings related to the current offering of medical cannabis business licenses. The stay was issued because of the commission’s discovery of potential inconsistencies in the tabulation of scoring data and the commission’s need for additional time to seek an independent review of all scoring data.
In August 2023, the AMCC announced new awards. The results were largely the same as the June 12 awards, but they differed in a couple of ways. First, three additional cultivation licenses were awarded and one of the secure transportation licenses that received an award in June was not awarded a license in August. Second, there was a significant change in the integrated facility category: Verano Alabama, which scored highest in the University of South Alabama’s grading in both June and August, was removed from the list of awardees, replaced by INSA Alabama, which finished seventh in the August scoring but was nevertheless awarded an integrated license.
Care to guess what happened next? Yep, lawsuits. I probably qualify for medical cannabis based on the PTSD I experienced during this period, but I’ll summarize:

Many applicants argued that the AMCC violated the Open Meetings Act when it retired to executive session and engaged, according to the challengers, in improper deliberations and a secret ballot in violation of Alabama law. The logic of the balloting is fairly straightforward. Challengers point out that (1) there must have been deliberations about the applicants in order to lead to the changes in the scoring, particularly in the integrated facility category, and (2) the “nominating” process essentially ensured that the nominations made in executive session would dictate the award of licenses because those receiving the most nominations were essentially ensured of receiving the most votes and the voting stopped before other applicants were considered. The AMCC denies that deliberations occurred and points to the fact that commissioners could have changed their nominations at any point, including before submitting the nominations to AMCC staff in public session.
Applicants have challenged the process by which rules, regulations, and decisions made by the AMCC violated the Alabama Administrative Procedures Act. These claims go to the heart of the entire licensing process and, if successful according to challengers, call for the process to essentially begin again. Several other applicants have raised challenges to the manner in which applications were scored and whether the AMCC requirement that dissatisfied applicants pay the entire license fee (ranging from $30,000 to $50,000) in order to seek an administrative appeal of the AMCC’s decision violates due process.
Verano Alabama has argued that the AMCC lacked the authority to stay its June 12 awarding of licenses and that it should be awarded a license. In prior hearings the court has expressed skepticism about this argument, but it remains a live issue.

As these lawsuits were filed, the court held a number of hearings. At each opportunity, the court expressed its strong preference that the AMCC work with challengers to find a path forward that would allow for the awarding and issuance of licenses. The court concluded that the applicants had established a prima facie case that the commission had violated the Open Meetings Act and stated that it would enter a temporary restraining order preventing the issuance of licenses while the court conducted an evidentiary hearing on the alleged violations of the act.
In October 2023, in an effort to turn things around (and avoid more litigation), the AMCC adopted new regulations and changes to existing regulations:

An emergency rule creating additional application procedures;
An almost-identical permanent rule that is due for public comment; and
A set of technical changes to current rules.

The new rules created new procedures for:

Re-submitting any exhibits that existed on December 30, 2022, but which were adversely affected by the 10-megabyte file size limit on portal submissions;
Reducing the amount of material that is redacted in each application and opening the applications for additional public comment;
Any applicant who failed a pass/fail item to show cause why they should not have their application rejected;
Applicants to present their application to the AMCC and advocate for themselves in person;
Disclosing certain scoring and grading information; and
Considering, voting on, and awarding licenses in an open meeting, which the public can attend.

Finally, it seemed, we came to an end game as 2023 neared its close. We detailed the complex process – which was the result of a mediated settlement among some, but not all, litigants in the Montgomery County case – here, but the gist was that applicants would each have the opportunity to plead their case in an open hearing of the AMCC, and the AMCC would render its decision shortly thereafter.
Those hearings occurred and the AMCC awarded a third round of licenses. And everyone lived happily ever after, right? Not so fast my friend. Almost immediately, the court enjoined the issuance of dispensary and integrated licenses.
Those injunctions remain in place today, more than a year later. Applicants, advocates, and other stakeholders have been stuck in a sort of limbo since the final week of 2023. I can’t believe what I just wrote and how many lives have been impacted in the meantime. What a mess.
So Now What?
It’s hard not to become cynical observing this process play out. To pull from another Phish song:
The packaging begins to breakAnd all the points I tried to makeAre tossed with thoughts into a binTime leaks out, my life leaks in

But, as I have written recently, I believe that we have made progress – painfully slow and halting to be sure – and may well be on the precipice of getting this program off the ground:
But somehow in the face of years of advising clients and potential patients going through the hell that can be waiting on lawmakers, regulators, and courts to get a medical cannabis program off the ground, I became an optimist. At first, I’m sure it was little more than putting on a brave face for disappointed, frustrated, and even angry folks wondering why they couldn’t simply get resolution to their dreams. Perhaps this was the “fake it ‘til you make it” phase of my journey, but over time I actually became optimistic that Alabama would be able to launch a medical cannabis program that could provide relief to Alabamians so desperate for a different kind of therapy for what ails them.

Conclusion
I asked for a crystal ball for Christmas, but instead I got a bunch of quarter-zip sweaters (not the most perfect styling for a self-professed cannabis lawyer), so I can’t promise you what is going to happen. What I can promise you is that, while there are certainly those who seem committed to watching the whole structure burn down if they aren’t awarded a license, there are more on the side of making this work. More people looking to the court system – and particularly the appellate courts giving direction to the trial court – to bring some closure to this process. I remain optimistic this is the path forward.
If we can do that, we can stand up a medical cannabis program with integrity, decency, and empathy that Alabama can be proud of. Wouldn’t that be nice? That is a place where I ache to go.

U.S. Shifts AI Policy, Calls for AI Action Plan

Highlights

The U.S.’s cautious approach to AI policy and regulation is signaled by declining to enter a foreign agreement and the withdrawal of previous framework
A new request for information requests broad input from industry, academia, governmental, and other stakeholders

The U.S. has taken significant steps to reshape its artificial intelligence (AI) policy landscape. On Jan. 20, 2025, the administration issued an order revoking Executive Order 14110, originally signed on Oct. 30, 2023. This decision marks a substantial shift in AI governance and regulatory approaches. On Feb. 6, 2025, the government issued a request for information (RFI) from a wide variety of industries and stakeholders to solicit input on the development of a comprehensive AI Action Plan that will guide future AI policy.
As part of this initiative, the government is actively seeking input from academia, industry groups, private-sector organizations, and state, local, and tribal governments. These stakeholders are encouraged to share their insights on priority actions and policy directions that should be considered for the AI Action Plan. Interested parties must submit their responses by 11:59 p.m. ET on March 15, 2025.
Executive Order 14110 was designed to establish a broad regulatory framework for AI, emphasizing transparency, accountability, and risk mitigation. The revoked order required organizations engaged in AI development to adhere to specific reporting obligations and public disclosure mandates. The order affected a wide range of stakeholders, including technology companies, AI developers, and data center operators, all of whom had to align with the prescribed compliance measures. With the Jan. 23 Executive Order 14179, organizations must now reassess their compliance obligations and prepare for potential new frameworks that could take the place of the previous Executive Order 14110.
However, given the RFI, there is an opportunity to participate in the formation of new AI policies and regulations. The new order and the RFI seek input into AI policies and regulations directed towards maintaining U.S. prominence in AI development. Consequently, potentially burdensome requirements seem unlikely to emerge in the near term.
On the international front, the U.S. administration’s decision not to sign the AI Safety Declaration at the recent AI Action Summit in Paris further avoids potential international barriers to AI development in the U.S. This, together with the issuance of the RFI, seems to signal caution in development of an AI Action Plan that will drive policy through stakeholder engagement and regulatory adjustments.
The AI Action Plan is intended to establish strategic priorities and regulatory guidance for AI development and deployment. It aims to ensure AI safety, foster innovation, and address key security and privacy concerns. The scope of the plan is expected to be broad, covering topics such as AI hardware and chips, data centers, and energy efficiency.
Additional considerations will include AI model development, open-source collaboration, and application governance, as well as explainability, cybersecurity, and AI model assurance. Data privacy and security throughout the AI lifecycle will also be central to discussions, alongside considerations related to AI-related risks, regulatory governance, and national security. Other focal areas include research and development, workforce education, intellectual property protection, and competition policies.
Takeaways
Given these policy indications, organizations should take proactive steps to adapt to, and potentially contribute to, the evolving AI regulatory landscape. It is essential for businesses to remain aware of developments policies and engage in the opportunities to help shape forthcoming AI policies. Furthermore, monitoring international AI governance trends will be crucial, as these developments may affect AI operations within the U.S.

Delays Ahead: Maryland DOL Proposes Pushing Back FAMLI Program Implementation by 18 Months

Takeaway

Payroll deductions for the state’s Family and Medical Leave Insurance program would begin on 1/1/27 and benefits would become available on 1/1/28 under the Maryland Department of Labor’s proposal.

Acting General Counsel of NLRB Issues First GC Memorandum, Rescinding Controversial Pro-Labor Memoranda

On February 14, 2025, the Acting General Counsel of the National Labor Relations Board (“NLRB”) William B. Cowen issued his first General Counsel Memorandum (“GC Memo”) GC 25-05 rescinding nearly all of the Biden administration General Counsel’s substantive prosecutorial guidance memos, which furthered a pro-union and pro-employee agenda. While these memoranda do not have the weight of law or regulation, they do set out the agency’s priorities and key interpretations of the National Labor Relations Act (“NLRA”).
There were generally two types of rescissions. In addition to simply rescinding certain GC memos, Cowen also rescinded additional memos “pending further guidance” – suggesting those areas where the new administration will be placing its focus. Cowen cited the Board’s backlog of cases as one of the reasons necessary for the rescission of the GC memos.
Cowen’s GC Memo did not address the impact of the NLRB’s current lack of a quorum on the Acting GC’s prosecutorial agenda. President Trump’s unprecedented firing of former NLRB Chair Gwynne Wilcox, which deprived the NLRB of a quorum, is currently being litigated.
Which Memos Were Rescinded?
While we include a complete list of the memos that were rescinded by Cowen’s GC Memo below, of note, the memo rescinded the following key GC memos:
Confidentiality and Non-Disparagement Provisions in Severance Agreements – GC Memo 23-05 endorsed prosecuting employers that imposed on employees broadly worded severance agreements with expansive non-disparagement and confidentiality clauses. A link to earlier articles about the issuance of GC Memo 23-05 can be found here and here.
Damages – GC Memo 24-04 had greatly expanded the scope of consequential damages regional offices should seek in unfair labor practice proceedings, including pursuing make-whole remedies for employees harmed, regardless of whether the employees are identified in an unfair labor practice charge. A link to an earlier article about the issuance of GC Memo 24-04 can be found here.
ULP Settlements – GC Memo 21-07 had instructed regional offices to seek no less than 100 percent of the backpay and benefits owed in cases that are settled, and required regional offices to include front pay in settlements for cases where a discharged employee waived reinstatement to his or her former position. This memo was rescinded pending further guidance from the Board.
Electronic Monitoring and Automated Management – GC Memo 23-02, in this memo, Abruzzo had advocated for zealous enforcement and NLRB adoption of a “new framework” to protect employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with protected activity. A link to an earlier article about the issuance of GC Memo 23-02 can be found here.
“Stay-or-Pay Provisions” – GC Memo 25-01 had directed regional offices to find “stay-or-pay” provisions and employee non-solicit agreements unlawful under the NLRA and called for employers to go beyond mere rescission of the provision and directed regions to seek traditional make-whole remedies for unlawful provisions consistent with Board law.
Non-Competes – GC Memo 23-08 had expressed Abruzzo’s opinion that the use of non-compete provisions in employment agreements violated section 7 of the NLRA and that the proffer, maintenance, and enforcement of such agreements violated section 8(a)(1). A link to an earlier article about the issuance of GC Memo 23-08 can be found here.
10(j) Injunctions – GC Memo 24-05 in which Abruzzo reaffirmed her commitment to seeking 10(j) injunctions in federal court against employers to protect employee rights from remedial failure due to the passage of time. This memo was issued following the Supreme Court decision in Starbucks Corp. v. McKinney, 144 S. Ct. 1570 (2024), where SCOTUS resolved a circuit split and set a uniform four-part test applicable to Section 10(j) injunction petitions.
Rescinded GC Memos:

GC 21-02 Rescission of Certain General Counsel Memoranda
GC 21-03 Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines
GC 21-04 Mandatory Submissions to Advice
GC 21-08 Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act
GC 22-06 Update on Efforts to Secure Full Remedies in Settlements (Revised Attachment)
GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights
GC-23-04 Status Update on Advice Submissions Pursuant to GC Memo 21-04
GC 23-05 Guidance in Response to Inquiries about the McLaren Macomb Decision
GC 23-08 Non-Compete Agreements that Violate the National Labor Relations Act
GC 24-04 Securing Full Remedies for All Victims of Unlawful Conduct
GC 24-05 Section 10(j) Injunctive Relief and the U.S. Supreme Court’s Decision in Starbucks Corp. v. McKinney
GC 24-06 Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act
GC 24-06 Attachment
GC 25-01 Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act
GC 25-02 Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations

GC Memos Rescinded Pending Further Guidance from the Board:

GC 21-05 Utilization of Section 10(j) Proceedings
GC 21-06 Seeking Full Remedies
GC 21-07 Full Remedies in Settlement Agreements
GC 22-01 Ensuring Rights and Remedies for Immigrant Workers Under the NLRA
GC 22-01 (en Español) Asegurando los Derechos y Remedios para Trabajadores Inmigrantes Bajo la NLRA
GC 22-02 Seeking 10(j) Injunctions in Response to Unlawful Threats or Other Coercion During Union Organizing Campaigns
GC 22-03 Inter-agency Coordination
GC 22-05 Goals for Initial Unfair Labor Practice Investigations
GC 23-01 Settling the Section 10(j) Aspect of Cases Warranting Interim Relief
GC 23-07 Procedures for Seeking Compliance with and Enforcement of Board Orders
GC 24-01 (Revised) Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC
GC 25-03 New Processes for More Efficient, Effective, Accessible and Transparent Casehandling
GC 25-04 Harmonization of the NLRA and EEO Laws

GC Memos Rescinded Due to Board Precedent:

GC 22-04 The Right to Refrain from Captive Audience and other Mandatory Meetings

GC Memos Rescinded and Replaced by Prior GC Memos:

GC 23-03 Delegation to Regional Directors of Section 102.118 Authorization Regarding Record Requests from Federal, State, and Local Worker and Consumer Protection Agencies and GC Memo 18-01 was restored

GC Memos Rescinded as COVID-19 Is No Longer a Federal Public Health Emergency:

GC 21-01 Guidance on Propriety of Mail Ballot Elections, pursuant to Aspirus Keweenaw, 370 NLRB No. 45 (2020)

Key Takeaways
Acting General Counsel Cowen’s GC Memo signals the Board’s agenda is progressing towards overturning many of the key controversial and pro-labor Biden-era Board decisions. Employers should consult labor counsel to discuss the updated guidance and the issues presented by the GC Memo, particularly if employers are still dealing with the previous guidance of the rescinded GC memos related to non-compete agreements, settlement agreement provisions, “stay-or-pay” provisions, electronic surveillance, and others.

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CSRD Slashed: EU’s Corporate Sustainability Regulations Significantly Reduced

On 26 February 2025, the European Commission (the “Commission”) adopted a new package of proposals to simplify the regulations on sustainability. Their aim is to combine the competitiveness and climate goals of the European Union, which we reported on here, as part of their aim for a “simpler and faster” Europe.
The proposals, packaged in an “Omnibus”, dramatically reduce the scope and reporting required under the Corporate Sustainability Reporting Directive (“CSRD”), the Corporate Sustainability Due Diligence Directive (“CSDDD”) and the EU Taxonomy (“Taxonomy”).
We set out below the key changes proposed for CSRD.
The Omnibus’ aims for the CSRD are to make it “more proportionate and easier to implement by companies” through:

Reduction of scope:

“large undertakings” in scope of CSRD are redefined as those with over 1000 employees on a group or standalone basis, rather than 250 employees, with the financial thresholds of EUR 50 million turnover or a balance sheet total above EUR 25 million remaining static. This is significantly impactful reducing the scope of companies in scope of CSRD by around 80% (and aligns more with the CSDDD threshold). Listed SMEs are no longer in scope unless they meet the “large undertakings” thresholds; and
non‑EU parents will only be in scope of CSRD if they generated EU‑derived turnover of EUR 450 million, rather than EUR 150 million, with either an EU large undertaking meeting the revised thresholds set out above or with an EU branch with EUR 50 million in turnover to align with that required of “large undertakings”, revised upwards from EUR 40 million.

Postponement of reporting: for those companies who were due to report on year 2025 in year 2026 who remain in scope as they have over 1000 employees, there will be a two‑year delay to reporting.
A shield – the value chain cap: for companies not in scope of the CSRD (those with less than 1000 employees), the Commission will adopt by a delegated act a voluntary reporting standard leveraging the standard that was developed for SMEs. This standard is intended to act “as a shield” by limiting the amount of information that companies and banks falling into scope of the CSRD can request from companies in their value chains with few than 1,000 employees.
Reporting standards to be revised: the European Sustainability Reporting Standards (“ESRS”), which are at the heart of CSRD’s requirements, are to be revised via a delegated act to substantially reduce the number of data points, clarify unclear provisions and improve consistence with other legislation. They will remove datapoints that are deemed least important for general purpose sustainability reporting, prioritise quantitative datapoints over narrative text and further distinguish between mandatory and voluntary datapoints. Clearer instructions will be provided on how to apply the materiality assessment process. There is also reference to making sure that there is “very high” interoperability with global reporting standards.
No sector‑specific standards will be required
Limited assurance to remain: there will be no uplift to reasonable assurance over time.

Next steps
There is no impact assessment on the potential economic, social and environmental effects as the Commission has deemed the Omnibus to be so urgent and important that a derogation from the need to provide the impact assessment was granted under the Commission’s Better Regulation Guidelines. However, the market and a range of stakeholders will no doubt hotly debate the impact across all these areas. The Commission itself acknowledges that the proposed changes to CSRD may “partially diminish the positive impacts” but that the “reduction of administrative burden” should lead to economic and competitive gains.
The Commission has called on the European Parliament and European Council to “reach rapid agreement” on the proposals. The legislation needs European Parliament approval with a majority of MEPs voting in favour and at least 55% (15 out of 27) of Member States voting in favour at the European Council. It will then come into force following its publication in the EU Official Journal.
This legislation is also in the form of a Directive and requires national transposition by each Member State, which had not yet occurred across the EU for the current guide of CSRD. It could be that we witness some gold‑plating or an emergence of a range of EU Member State expectations through national guidelines at a juxtaposition with the aims of the EU’s Single Market.

Professionally Speaking February 2025

Professionally Speaking explores current topics of interest to general counsel, claims professionals and risk managers for various professional liability lines, including accountants, lawyers, design professionals, insurance brokers and others.
Read the Newsletter Here

EDGAR Next: The Next Era in Filing

Introduction
On 27 September 2024, the Securities and Exchange Commission (SEC) adopted “EDGAR Next,” a collection of rule and form amendments intended to improve access to, and management of, accounts on the SEC’s filing portal, the Electronic Data Gathering, Analysis, and Retrieval system, or “EDGAR.” The collection of amendments includes amendments to Rules 10 and 11 of Regulation S-T, Form ID, and the EDGAR Filer Manual, Volume I. EDGAR Next is expected to have a disruptive effect on the SEC filing process, but ultimately result in a smoother overall filing system for all electronic filers, including public companies, investment funds, certain shareholders, Section 16 officers and directors, and filing agents. Compliance with EDGAR Next is required by 15 September 2025.
Background: EDGAR “Now”
EDGAR is the current system through which filers submit filings required by various federal securities laws to the SEC. Historically, EDGAR assigned each filer a set of access codes that could be used by different individuals to make submissions on the filer’s behalf. Specifically, filers are assigned central index keys, or CIKs, and a set of login credentials, including a password, passphrase, CIK confirmation code (CCC), and password modification authorization code (PMAC) (the EDGAR Codes). A first-time filer obtains EDGAR Codes by submitting a Form ID application through EDGAR, which sets up their account.
Looking Ahead: EDGAR Next
EDGAR Next aims to enhance the SEC’s investor protection mission by improving EDGAR’s security, enhancing management of EDGAR accounts by filers, and modernizing EDGAR connections.
Accordingly, EDGAR Next seeks to improve security by requiring individual account credentials to log in to EDGAR, allowing identification of the individual making each submission, and employing multifactor authentication. As a practical matter, EDGAR Next will require anyone attempting to act on behalf of a filer to (i) present individual account credentials obtained from Login.gov, a US government sign-in service, and (ii) complete multifactor authentication to access EDGAR accounts and submit filings. EDGAR Next’s access protocols will limit access to a filer’s account to only those individuals directly authorized by the filer and requiring such individuals to have their own personal EDGAR accounts.
Additionally, EDGAR Next will continue using CIKs and CCCs but will no longer assign passwords, PMACs, and passphrases. As such, in order to access an EDGAR account, filers, or individuals authorized to file on the filer’s behalf, will need to log in to EDGAR using the credentials obtained from Login.gov, complete multifactor authentication, and enter the filer’s CIK and CCC.
Per the SEC, EDGAR Next is meant to enhance filers’ ability to manage their EDGAR accounts by requiring filers to authorize at least two individuals (or one if the filer is an individual or single-member company) to manage their accounts on a new EDGAR Filer Management dashboard (the EDGAR Next Dashboard) as “account administrators.” Their duties are as follows:

Manage the filer’s EDGAR account;
Confirm annually on EDGAR that all individuals and entities reflected on the EDGAR Next Dashboard for its EDGAR account are authorized by the filer to act on its behalf, and that all information about the filer on the dashboard is accurate;
Maintain accurate and current information on EDGAR concerning the filer’s account, including but not limited to accurate corporate and contact information; and
Securely maintain information relevant to the ability to access the filer’s EDGAR account, including but not limited to access through any EDGAR Application Programming Interfaces (APIs).

Additionally, EDGAR Next will roll out optional APIs, which will allow filers to make submissions, retrieve information, and perform account management tasks on a machine-to-machine basis. The optional APIs are meant to enhance the efficiency and speed of many filers’ interactions with EDGAR.
Key Dates
Adopting Beta: 30 September 2024–19 December 2025
It is never too early to start preparing to comply with EDGAR Next. The “Adopting Beta” launched on 30 September 2024, and will remain live until at least 19 December 2025, giving filers and authorized users ample time to get comfortable with EDGAR Next in a testing environment that is separate from the actual EDGAR system.
EDGAR Next Dashboard: 24 March 2025
The EDGAR Next Dashboard will go live on 24 March 2025 (while still allowing the submission of filings in accordance with the legacy EDGAR filing process until 12 September 2025). Existing filers will obtain access by enrolling in EDGAR Next on the EDGAR Next Dashboard while new filers (and existing filers unable to enroll) must apply for EDGAR access by completing the new amended Form ID (also on the EDGAR Next Dashboard), the application for access to EDGAR. Existing filers or authorized persons will need to use their current EDGAR Codes (those used for the legacy EDGAR system) to enroll in EDGAR Next.
EDGAR Next Deadlines: 15 September 2025 and 19 December 2025
Beginning 15 September 2025, compliance with EDGAR Next is required in order to submit filings. The legacy EDGAR system will remain available for enrollment purposes until 19 December 2025, after which the legacy EDGAR system will be deactivated altogether. Thus, filers that have not enrolled in EDGAR Next or received access through submission of an amended Form ID by 19 December 2025 must submit a new amended Form ID to request access to their existing accounts.
Key Tips and Takeaways
Below is a checklist of action items as filers and account administrators assess and plan their compliance efforts over the coming months. While enrollment does not begin until late March, filers and account administrators are encouraged to prepare well in advance of EDGAR Next’s official inception, including:

Take advantage of the Adopting Beta
Obtain Login.gov credentials
Gather current EDGAR Codes (CIKs / CCCs / Passphrases)
Determine your account administrators, users, and technical administrators
Identify individuals who have beneficial ownership reporting obligations with client entities (Section 16 and Form 144 filings, for example)
Contact financial printer (if applicable)
Review SEC guidance
Coordinate compliance efforts
Enroll on EDGAR Next (once live)

Lawsuit Alleges FDA Has Unduly Delayed Response to PFAS Petition

Last month a lawsuit filed by plaintiffs including the Tucson Environmental Justice Task Force (TEJTF) filed suit against FDA and now former FDA commissioner Robert Califf alleging that FDA had unduly delayed in responding to a petition filed by TEJTF in 2023 which had requested that FDA set tolerances for 30 types of PFAS in lettuce and blueberries and 26 types of PFAS in bread, milk, eggs, salmon, clams, and corn silage.
The lawsuit argues that FDA has unduly delayed because it has not acted consistent with its statutory mandate to “promote public health by promptly and efficiently reviewing clinical research and taking appropriate action on the marketing of regulated products in a timely manner” (21 USC § 393) and the delay allegedly is to the determinant of the public health. The lawsuit argues that prior decisions holding that courts should defer to FDA on whether to promulgate tolerances is no longer good law post-Chevron and that the “only discretion FDA may exercise for such chemicals [harmful substances] is the level of tolerance to be set.”
We will continue to monitor and report on the regulation of PFAS and other chemicals, including any changes in approach that may be implemented by the new administration.

FTC COPPA Updates Provide New Protections for Children

In the waning days of the Biden administration, the FTC published an update to its COPPA Privacy Rule. The status of this update, however, is unclear. The revisions to the rule were posted on the FTC website prior to the Trump administration, but had not yet been published in the Federal Register.
Trump’s Presidential Memorandum freezing pending federal regulations means that it has not yet been published. And publication is the next step towards it going into effect. Second, and relatedly, the current FTC chair (Ferguson) had expressed concerns about the rule. It is thus likely that it will not be published, at least as currently drafted. As we wait for next steps, for those companies that offer websites directed to or appealing to children, a quick recap. First, the items that were not of concern for Ferguson (and thus likely to be implemented as are):

Website notice (privacy policy). The content of website notice for those subject to COPPA under the rule as revised will require new content. This includes steps a site takes to make sure persistent identifiers used for operational purposes are not used for behavioral advertising. Additionally, for sites collecting audio files, the privacy policy must indicate how the files are used and deleted.
Verifiable parental consent. The revised rules provide for new methods of parental verification. This includes comparing a parent’s authenticated government ID against their face (using a camera app, for example). It also includes a “dynamic, multiple-choice” question approach, if the questions would be too hard for a child 12 or under to complete. The revision also permits texting for what has been traditionally known as the “email-plus” verification process, which can be used when children’s information is not disclosed. Also added is another “one time use” exception to parental consent. Namely collecting and responding to a question submitted by a child through an audio file.
Security. The new rule will require sites to have a written information security program. This goes beyond the current obligation to have “reasonable measures” in place. The security obligations are detailed, and mirror security obligations that exist under various state data security laws.
Definitions. As revised the rule will add “biometric identifiers” to the list of personally identifiable information. These are elements like fingerprints or voiceprints that can be used to identify someone. The definition also includes someone’s “gait.” The rule will also include the definition of “mixed audience” site, a term currently used by the FTC in its COPPA FAQs.

Putting it into Practice: While we await the publication of the revised rules, whether in the format that they took before the new administration, or in a revised format, companies that operate websites subject to COPPA can keep in mind the parts of the new rule that were not of concern to Ferguson. These include new content in privacy policies.

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Mass. “Unlocking Housing Production Commission” Recommends Land Use and Zoning Reforms

Last Friday, Massachusetts’ “Unlocking Housing Production Commission,” established by Gov. Maura Healey in October, 2023, released its report titled “Building for Tomorrow.” The report lays out a series of recommendations to address the Commonwealth’s housing crisis, organized into several categories: Economic Incentives and Workforce Development; Land Use and Zoning; Regulations, Codes, and Permitting; and Statewide Planning and Local Coordination. Some of the recommendations are realistic and achievable; others are pie-in-the-sky pipe dreams that could never happen in the current environment (or, in some cases, in any imaginable future environment).
Of interest to regular readers of this blog, the report makes the following recommendations under the heading of Land Use and Zoning.
Eliminating Parking Minimums. Noting the significant effect on housing costs of mandatory surface and structured parking, and the corresponding consumption of land that could be beneficially used for other purposes, the Report recommends: (1) Eliminating parking minimums statewide for residential uses; and (2) Requiring municipalities to establish transportation demand management requirements as a condition for allowing off-street parking associated with new housing.
40A Reforms. The Report makes six recommendations to reform the state Zoning Act, Chapter 40A:
(1) Adding a statement of the purposes of zoning back into Chapter 40A. Such a statement was part of the bill establishing the current Zoning Act in 1975, but was not included in the statute as codified in the General Laws. One of the stated purposes of zoning is “[encouraging] housing for persons of all income levels.” The Report sees re-inserting the statement of purposes into Chapter 40A as an opportunity to highlight the role of zoning in addressing the Commonwealth’s housing needs.
(2) Incentivizing or requiring zoning to align with municipal master planning. The Report notes that many communities create master plans with 10- or 20-year growth strategies, but outdated zoning regulations often hinder achievement of these goals.
(3) Codifying site plan review. The Report observes that site plan review, which has become a key component in most municipal permitting regimes, is a creature of the common law that’s unregulated by Chapter 40A or any other statute. As a result, the process varies greatly from one municipality to the next, and often has the effect of making the development of housing more difficult and costly. The Report recommends codifying site plan review under Chapter 40A, including setting time limits, establishing uniform, objective criteria, allowing for tiered review systems depending on the size and scope of a project, and clarifying that notice to abutters is not required.
(4) Converting zoning appeals to court from their current status as “de novo” appeals to proceedings limited to the record that was before the local zoning board. The Report describes the benefit of this change as “prevent[ing] abutters from raising new issues on appeal that were never raised during the local approval process for the explicit purpose of delaying a project.” Amen to that.
(5) Amending Chapter 40A to add appeals of building permits to the list of appeals for which the defendant may move the court to require the plaintiff to post a bond. Currently, the statute only authorizes the imposition of a bond in appeals of special permits, variances, and site plans. The Report suggests this change “will strengthen the appeals process and disincentivize parties from levying baseless appeals.” Amen to that too.
(6) Requiring that land use appeals concerning the construction of 25 or more housing units be heard in the Land Court’s Permit Session, which offers attentive case management by the court and expedited timelines. Currently, under M.G.L. c. 40A, § 3A, appeals concerning projects involving 25 or more dwelling units may be brought in the Permit Session, or transferred there on the motion of any party, but are not required to be heard there.
The Report cites the following benefits of these proposed changes to Chapter 40A: strengthen the legal foundation for zoning to support housing production; reduce legal challenges and uncertainty for housing development; ensure zoning supports long-term housing and economic goals; improve permitting transparency and efficiency; streamline development timelines and reduce project costs; and enhance coordination between planning and zoning implementation.
Expanding Multifamily Housing Options. The Report makes two recommendations in this regard: (1) the Commonwealth should allow, by right, two-family homes on all residential lots and four-family homes on all residential lots with existing water and sewer infrastructure; and (2) the Commonwealth should require all municipalities to create multifamily zoning zoning districts, including by-right zoning for multi-family units proportional to each municipality’s overall housing stock, minimum density standards, requirements to ensure suitability of units for families with children, protection for environmentally sensitive land, and flexibility for municipalities to determine the size and location of multi-family projects, “with incentives for development near transit, commercial corridors, and job centers.”
Minimum Lot Size Reform. Under this heading the Report has two recommendations: (1) eliminate residential minimum lot sizes statewide; and (2) allow residential lot mergers, lots splits, and use of substandard lots statewide to create multifamily housing by right, except in environmentally sensitive areas and on excluded lands. Whoa. Can you say “non-starter”?
40R Reforms. Chapter 40R is a 2004 law that offers incentive payments to municipalities that create zoning districts in which high-density residential and mixed-use development, with a minimum of 20% affordable housing, is allowed by right. The Report acknowledges that Chapter 40R has been mildly successful, producing over 7.000 housing units, but observes that this pace is inadequate to address the Commonwealth’s huge housing shortage. The Report makes two recommendations to improve Chapter 40R: (1) scale affordability requirements to density, meaning require a higher percentage of affordable units at higher density levels, while maintaining “a non-negotiable minimum percentage of affordable units for each tier of density”; and (2) amend the statute to eliminate so-called “zoning incentive payments” to municipalities and instead channel those funds into bonus payments for units actually built, with a portion of the funds paid to the municipality and a portion paid directly to the developer.
40B Reforms. The Report recommends several changes to Chapter 40B, the Commonwealth’s groundbreaking 1969 statute that offers developers the opportunity to get a single “comprehensive permit” from the local zoning board, and avoid local zoning and other regulations, in municipalities that don’t have at least 10% affordable housing. Those recommendations are to strengthen Chapter 40B by (1) streamlining and speeding up the appeals process, including by expanding staffing at the Housing Appeals Committee, which hears developers’ appeals from adverse local decisions; (2) require parties who appeal comprehensive permits to post a mandatory bond to discourage baseless appeals; (3) increase the frequency of housing stock counts and updates to the state’s Subsidized Housing Inventory (SHI); (4) eliminate the requirement that affordable units must receive a financial subsidy to count towards the municipality’s SHI and instead treat oversight by and technical assistance from the Executive Office of Housing and Livable Communities and affiliated agencies as a form of subsidy; and (5) offer major financial incentives to municipalities that exceed the 10% statutory baseline, including grants for infrastructure improvements and technical assistance.
As noted, some of the Report’s recommendations – for example, allowing two-family homes by right on all residential lots and eliminating minimum lots sizes statewide – are unrealistic and politically unachievable given Massachusetts’ strong Home Rule tradition. Others are plausible and something to strive for – particularly the proposed reforms to Chapter 40A, some of which have been bandied about for years, and which can be seen as a logical extension of the pro-housing reforms the Legislature enacted last summer (see our coverage of that important bill here).

Waffles, Passports and Trustee Directors – Part Two

Part one of this blog covered the new requirement for company directors (including trustee directors) and persons with significant control to verify their identity with Companies House. They will be able to do this voluntarily from 25 March 2025 (the week during which national cocktail-making day, national cleaning week and international waffle day will be celebrated in the US). This requirement is part of measures introduced under the Economic Crime and Corporate Transparency Act 2023 (ECCTA). But are these measures proportionate? Surely there can’t be that many companies in England and Wales registered for fraudulent purposes?
In 2023, the BBC reported that between June and September of that year alone, over 80 companies had been set up using the residential addresses of unsuspecting people living in the same street in Essex. Experts speculated that these companies had been registered in order to launder money or to take out bank loans before closing down the companies and disappearing.
In another case in March 2024, one individual managed to file 800 false documents at Companies House in a short space of time, which recorded the false satisfaction of charges registered by lenders against a total of 190 different companies. Having an accurate register of charges at Companies House is important because it governs the order of priority of payment of debts and, if a company is in financial difficulties, it influences the route by which administrators are appointed and to whom notice must be given.
Meanwhile, Tax Policy Associates, a not for profit company, has published details of its many investigations into fraudulent entities that have been able to set up and use UK registered companies as cover. The investigations it has carried out provide a fascinating insight into the magnitude of the problem. In a few quick steps, Tax Policy Associates demonstrates on its website how it was able to identify a £100 trillion fake company registered at Companies House. It has also highlighted a new scam letter being sent to directors of newly incorporated UK companies from “Company Registry” requiring them to pay a fee, which is one of the ways in which your personal data, published by Companies House, is being used by criminals.
If all this talk of fraud, and the ready availability of personal data filed at Companies House, is making you feel a bit uncomfortable then there is some potentially good news.
An individual whose residential address is/has been used as a registered office address in the past (whether knowingly or unknowingly) can apply to have their residential address supressed on Companies House records.
From summer 2025, individuals will be able to apply to have their date of birth appearing in documents that were filed before 10 March 2015 supressed. (Since 10 March 2015, Companies House has only ever published the month and year of birth.) Documents containing personal data, such as directors’ appointment forms, continue to be publicly available even after you have ceased to act as a director of a company.
In a similar vein, from summer 2025, individuals will also be able to request that their business occupation and signature are supressed in documents appearing at Companies House.
We do not have the detail around this yet, so it may be that the process and costs involved with redacting public documents might prove disproportionate for the majority of people. By way of example, the process for seeking to suppress a residential address involves identifying each document that needs to be redacted, completing a form and paying a £30 fee for each document that you want to get amended. Nor can you submit a subject access request to Companies House asking it to identify all documents that contain your personal data, because Paragraph 5 of Schedule 2 Part 1 of the Data Protection Act 2018 would likely exempt Companies House from this requirement. You would need to do the trawl yourself through a company’s filing history at Companies House.
It is to be hoped that in the not too distant future, there will be some sort of AI tool that will facilitate this process, meaning that submission of one request would result in the redaction of all sensitive personal data from Companies House publicly available records. Until then, however, it might prove a bit of a challenge if you are seeking to suppress any personal data published at Companies House, even once that facility becomes available. If you are interested in pursuing this, or would like further information or assistance, please speak with your usual SPB contact.
So, what will you be doing during the third week in March? Perhaps you will be celebrating the first anniversary of TPR’s general code of practice, which came into force on 28 March 2024.

EUROPE: National Regulators Announce Digital Operational Resilience Act Reporting Windows

EU national supervisory authorities will collect the Register of Information (ROI) pursuant to the EU’s Digital Operational Resilience Act (DORA) from in scope financial entities in April 2025, with the reference date set as 31 March 2025. ROIs are reports by in-scope EU financial entities on all contractual arrangements on the use of information and communication technology (ICT) services provided by ICT third-party service providers. The financial entity must differentiate between providers who are not critical and providers who are considered critical/important.
The Irish Central Bank has announced that it will collect the ROIs between 1-4 April 2025. The German BaFin has set 11 April as the deadline. In-scope financial entities across the EU should expect that there will be a similar process locally.
Under the Implementing Technical Standards on the Register of Information, information to be collected includes:
• Identification of ICT third-party service providers (will need to have either a valid LEI code or EU-ID for the files to pass validation);• Detail on the nature of the ICT services provided;• Detail on contractual arrangements;• Risk classification;• Monitoring and oversight mechanisms;• Sub-outsourcing arrangements; and• ICT-related incidents.
The European Supervisory Authorities have provided useful information on how to prepare to report the ROI which is available online. In Ireland, the Central Bank will publish a system guide to submitting the ROI in March 2025. The German BaFin has provided information here (in German).