New Transparency Requirements Under the Illinois Equal Pay Act
On January 1, 2025, the new requirements under the Illinois Equal Pay Act came into effect. Under this Act, employers with 15 or more employees are now mandated to include the pay scale and benefits for job positions that are performed in Illinois or for positions performed outside of Illinois if the employee reports to an office or supervisor located in Illinois.
The definition of pay scale and benefits encompasses the wage or wage range along with a general description of all benefits and other compensation associated with the position. This includes bonuses, stock options and any other incentives that the employer anticipates offering.
Employers are also required to post or announce all opportunities for promotion to current employees within 14 calendar days of making an external job posting for the position.
If an employer uses a third party, such as a recruiter, to post or publish its job positions, the employer must provide the pay scale and benefit information to the third party to ensure it is displayed. Both the employer and the third party are held liable for any failure to include the necessary pay scale and benefits information.
Penalties for failing to include the pay scale and benefits in job postings range from $500 to $10,000, depending on the offense. These new requirements apply to all job postings published or announced after January 1, 2025.
FDA v. Wages and White Lion Investments (No. 23-1038)
In 2021, after a multi-year regulatory process, the Food and Drug Administration denied more than a million applications from tobacco manufacturers seeking to sell various flavored e-cigarette products. After that process concluded, an en banc Fifth Circuit vacated the FDA’s denial of those products’ applications, concluding that the agency performed a “surprise switcheroo” by relying on criteria for evaluating applications that the Fifth Circuit found were inconsistent with the agency’s pre-application industry guidance. But as has happened more than once in recent years, in FDA v. Wages and White Lion Investments, LLC (No. 23-1038), the Supreme Court concluded that the Fifth Circuit was getting a bit too far over its skis. In a lengthy and thorough decision by Justice Alito, the Court unanimously vacated the Fifth Circuit, concluding that it had misapplied administrative law’s “change-in-position” doctrine by being too eager to read ambiguous and caveat-filled guidance from the FDA as stating a definitive agency position, meaning the FDA’s later rejection of manufacturers’ applications was not inconsistent with any actual position announced by the agency in the run-up to its decisions.
For nearly a hundred years, the FDA has had the statutory authority to regulate drugs, which it does primarily through an extensive premarket authorization process. Until 2009, however, the FDA’s regulatory authority did not extend to tobacco products. That changed when Congress enacted the Family Smoking Prevention and Tobacco Control Act of 2009, which gave the FDA the authority to regulate the marketing, sale, and distribution of tobacco products. Among other regulatory tools, that law subjected any “new tobacco products”—defined as products not marketed in the United States before February 15, 2007—to a premarket authorization process not unlike the one the FDA uses for drugs. Initially, this new regulatory authority didn’t mean a whole lot, because the most commonly used tobacco products were hardly “new.” But in the 2010s, the use of e-cigarettes, particularly flavored e-cigarettes, exploded among younger Americans. In 2016, the FDA responded by issuing a rule finding that e-cigarettes and e-liquids (the liquid one buys to refill some varieties of e-cigarettes) constituted “new tobacco products” under the TCA, subjecting them to the Act’s pre-authorization requirements even though these products had by then been on the market for several years.
To give manufacturers of e-cigarettes time to obtain “premarket” authorization for the products they had already been selling, the FDA announced that it would be delaying enforcement of any ban on e-cigarette products for a few years. Any manufacturers who wanted to continue to sell their products after that, though, would have to apply for and receive preauthorization. To help them with the application process, the FDA issued various pieces of external guidance and developed internal memoranda addressing how applications would be reviewed and evaluated. While the FDA’s guidance as to its thought process is too long to summarize here, it addressed four main topics: (1) evidence manufacturers would need to provide regarding their products’ health effects, (2) comparisons of the risk posed by their products compared with other tobacco products, (3) the FDA’s enforcement priorities, and (4) information about manufacturers’ marketing plans for their products.
The FDA ultimately received applications from more than 500 companies covering 6.5 million e-cigarette products, including several from respondents Wages and White Lion Investments. The FDA denied a substantial portion of these applications, including essentially all applications for flavored e-cigarette products, finding that these products were particularly attractive, and hence harmful, to young adults. Wages and White Lion Investments’ products were among those rejected by the FDA. It sought review of the FDA’s denials in the Fifth Circuit, where a divided merits panel affirmed the FDA’s decision. But the Fifth Circuit then took up the case en banc and reversed, with that court’s majority concluding that the FDA had acted arbitrarily and capriciously. In the en banc majority’s view, the FDA had performed a “surprise switcheroo” (their term) by changing its position on things like the kind of scientific evidence it expected manufacturers to provide in support of their application and by not even considering manufacturers’ marketing plans. Because that decision conflicted with those of other circuits, the Court granted certiorari.
In an opinion written by Justice Alito, the court unanimously vacated the en banc Fifth Circuit’s decision. Alito began by trying to pin down exactly what this case was about. While the en banc Fifth Circuit’s decision was complex, it ultimately boiled down to the concern that the FDA had effectively changed the requirements for premarket authorization between the time when it issued guidance to manufacturers and the time when it denied their applications. Administrative law addresses that concern with the “change-in-position” doctrine, which essentially asks whether an agency has changed its course and if so whether it offered satisfactory reasons for the change. For the most part, the Fifth Circuit’s criticisms of the FDA’s application decisions failed on the first prong: The FDA had never taken a “position” in the first place, so there was no “change” it needed to explain. Take, for example, the FDA’s stance on the type of scientific evidence it expected manufacturers to provide regarding their products’ health risks. While the respondents pointed to various snippets in FDA pronouncements suggesting that one or another type of study would or would not be looked on favorably, none of these statements amounted to a “hard-and-fast commitment” from the agency; they were full of the hems, haws, and caveats one typically sees in regulatory guidance. The same was true for the Fifth Circuit’s conclusions regarding comparative studies and agency priorities: For each, the Supreme Court saw no clear pre-application statement from the FDA about what it was expecting that was at odds with the ultimate grounds for its application decisions. On all these points, the basic flaw with the Fifth Circuit’s analysis was too much tea-leaf reading: The change-in-position doctrine requires a true change in a definitive policy, not an inconsistency in the hints one might draw from vague agency pronouncements.
That said, there was one aspect of the FDA’s decisionmaking where the Court was inclined to see a change of position: marketing plans. As the FDA itself conceded, it had changed its position on that point, as it indicated in its guidance documents that it would consider manufacturers’ plans, but when it came time to act on their applications, it ignored the plans entirely. But that was not a basis to vacate its decisions, the FDA argued, because any change in position was harmless: nothing in those ignored marketing plans could have saved applications, like Respondents’, that were deficient in other respects. But is harmless error applicable when courts review agency action? The en banc Fifth Circuit concluded it was not, interpreting the Court’s per curiam decision in Calcutt v. FDIC (2023) to mean that when an agency has erred, a court must remand the case to the agency for re-consideration unless the agency was legally required to take the action it ultimately took. That reading of Calcutt was too strong, Alito concluded, as prior decisions had recognized that remand to an agency is not required when the agency’s error “had no bearing on the procedure used or the substance of the decision reached.” So when exactly is an agency’s error harmless? Alito declined to say, deciding that the better course was to simply vacate the Fifth Circuit’s decision, which relied on its misreading of Calcutt and let that court decide in the first instance whether the Respondents had shown enough prejudice from the FDA’s change in position.
Justice Sotomayor concurred with one-paragraph intended to “clarify” a point. While Alito’s opinion sometimes characterized the FDA as an agency “feeling its way toward a final stance” and “unable or unwilling to say in clear and specific terms precisely what applicants would have to provide,” she thought its guidance was better seen as reasonably giving manufacturers flexibility to decide for themselves what sort of evidence was necessary.
New Section 232 Trade Investigations on Pharmaceutical and Semiconductor Imports Could Lead to Tariffs Mid-Year
On April 1, 2025, the Secretary of Commerce initiated, pursuant to President Trump’s directive, two new investigations under Section 232 of the Trade Expansion Act of 1962 (Section 232), one on imports of pharmaceuticals and pharmaceutical ingredients, and derivative products of those items (collectively, pharmaceuticals) and the other on imports of semiconductors, semiconductor manufacturing equipment (SME) and their derivative products (collectively, semiconductors). These investigations are initiated to determine whether imports of pharmaceuticals and semiconductors threaten to impair U.S. national security. Around one third of investigations completed under Section 232 during President Trump’s first and second administrations have led to tariffs at a rate of 25% on U.S. imports of these products.
To determine the effects of pharmaceutical and semiconductor imports on national security, the Secretary of Commerce is soliciting written comments, data, analyses or other pertinent information from the public, with an anticipated deadline of May 7, 2025. Information and argument provided should aid Commerce’s assessment of the factors set forth in 19 U.S.C. § 1862(d), such as domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements and the availability of the resources essential to the national defense.
In addition to these statutory factors, Commerce will evaluate the criteria listed in 15 C.F.R. § 705.4 as they affect national security and are soliciting information and argument from the public on these criteria as well.
For pharmaceutical imports, the criteria include the following 10 factors:
The current and projected demand for pharmaceuticals and pharmaceutical ingredients in the United States;
The extent to which domestic production of pharmaceuticals and pharmaceutical ingredients can meet domestic demand;
The role of foreign supply chains, particularly of major exporters, in meeting United States demand for pharmaceuticals and pharmaceutical ingredients;
The concentration of United States imports of pharmaceuticals and pharmaceutical ingredients from a small number of suppliers and the associated risks;
The impact of foreign government subsidies and predatory trade practices on United States pharmaceuticals industry competitiveness;
The economic impact of artificially suppressed prices of pharmaceuticals and pharmaceutical ingredients due to foreign unfair trade practices and state-sponsored overproduction;
The potential for export restrictions by foreign nations, including the ability of foreign nations to weaponize their control over pharmaceutical supplies;
The feasibility of increasing domestic capacity for pharmaceuticals and pharmaceutical ingredients to reduce import reliance;
The impact of current trade policies on domestic production of pharmaceuticals and pharmaceutical ingredients, and whether additional measures, including tariffs or quotas, are necessary to protect national security; and
Any other relevant factors.
For semiconductor, relevant criteria include the following 14 factors:
The current and projected demand for semiconductors (including as embedded in downstream products) and SME in the United States, differentiated by product type and node size;
The extent to which domestic production of semiconductors can or is expected to be able to meet domestic demand at each node size for each product type, and similarly the extent to which domestic production of SME can or is expected to be able to meet domestic demand;
The role of foreign fabrication and assembly, test and packaging facilities in meeting United States semiconductor demand, and similarly the role of foreign supply of SME in meeting domestic demand;
The concentration of United States semiconductor imports (including as embedded in downstream products) from a small number of fabrication facilities and the associated risks, and similarly the concentration of United States SME imports from a small number of foreign sources;
The impact of foreign government subsidies and predatory trade practices on United States semiconductor and SME industry competitiveness;
The economic or financial impact of artificially suppressed semiconductor and SME prices due to foreign unfair trade practices and state-sponsored overcapacity;
The potential for export restrictions by foreign nations, including the ability of foreign nations to weaponize their control over semiconductors and SME supply chains;
The feasibility of increasing domestic semiconductor capacity (in different product types and node sizes) to reduce import reliance, and similarly the feasibility of increasing domestic SME capacity to reduce import reliance;
The impact of current trade policies on domestic semiconductor and SME production and capacity, and whether additional measures, including tariffs or quotas, are necessary to protect national security;
What product types and node sizes could be built only using SME from U.S. companies;
What SME is manufactured abroad and faces limited competition from U.S.-made products;
What SME parts or components are only available outside the United States;
Where the U.S. workforce faces a talent gap in production of semiconductors, SME or SME components; and
Any other relevant factors.
Section 232 requires the Secretary of Commerce to complete an investigation and submit a report to the President within 270 days of initiating any investigation; the President then has up to 90 days to decide whether to concur with the report and take action, which may include import tariffs, quotas or other measures as needed to address the threat. Notably, however, there is nothing preventing the Commerce or the President from moving more quickly – and, in statements issued shortly before the investigation announcements, Secretary of Commerce Howard Lutnick stated that pharmaceutical tariffs will be implemented “in the next month or two.”
President Trump has initiated a total of 12 Section 232 investigations during his first and second administrations, of which eight have been completed. Three completed investigations – pertaining to imports of steel, aluminum, and automobiles – have resulted in import tariffs currently set at 25%. Three other investigations (uranium, titanium sponge and grain-oriented electrical steel) reached affirmative determinations but resulted in alternative actions. The other two investigations resulted in a finding of no national security threat or were withdrawn.
President Trump’s directive that Commerce investigate semiconductor and pharmaceutical imports under Section 232 follows his recent executive orders that it investigate imports of copper and lumber under this same provision and marks a continuation of the Trump Administration’s use of Section 232 as a preferred mechanism to bolster domestic production and reduce reliance on foreign suppliers.
DOJ Announces 90-Day Grace Period for Companies to Comply with New Data Security Rules on Foreign Adversary Access to U.S. Sensitive Data
The U.S. Department of Justice (DOJ)’s new data security rule went into effect April 8, 2025. The rule creates what are effectively export controls and requires companies to take measures to prevent U.S. sensitive personal and government-related data from falling into the hands of foreign adversaries. The rule targets transactions (including data brokerage, vendor agreements, employment agreements, and investment agreements) involving access to bulk sensitive personal data or government-related data when those transactions involve identified covered persons or countries of concern (China, Russia, Iran, North Korea, Cuba, and Venezuela).
On April 11, 2025, the DOJ’s National Security Division (NSD) issued a Compliance Guide, a Frequently Asked Questions (FAQs) document, and its Implementation and Enforcement Policy, offering critical clarity on how it will assess compliance and approach enforcement of the rule. One of the most significant elements of the policy is the DOJ’s announcement of a 90-day grace period (between April 8, 2025 and July 8, 2025) for companies making good faith efforts to comply (willful violations may still be pursued).This grace period is intended to encourage early cooperation and foster a compliance-first mindset across industries.
Companies should take action now, if they have not done so already, to engage in compliance efforts (many of which are identified by DOJ as evidence of “good faith”) such as:
Assessing datasets and datatypes that might be covered by the rule
Reviewing data flows and data transactions, particularly those that might constitute data brokerage as defined in the rule
Analyzing vendor agreements to determine the need for new contractual terms; renegotiation of agreements; and potential transfer of products and services to new vendors
Instituting vendor due diligence practices aligned with the rule
Evaluating employee access and potentially modifying roles, responsibilities, or work locations
Assessing investments and investment agreements relating to countries of concern or covered persons
Revising or creating internal policies and procedures
Implementing security controls as set forth in the requirements established by the Cybersecurity and Infrastructure Agency (CISA)
The DOJ guidance confirms the effective dates in the rule and expectation for full compliance with initial requirements after the 90-day grace period. While the core rule took effect April 8, 2025, additional compliance obligations (e.g., audits, reporting, due diligence) must be in place by October 6, 2025.
Organizations that collect, store, or transmit sensitive personal data—especially with cross-border implications—should begin engaging in the activities listed above. The rule is effectively a form of national security data control and applies to a broad array of actors, from data brokers and cloud infrastructure providers to businesses with international partnerships or data transfers.
Brussels Regulatory Brief: March 2025
Antitrust and Competition
European Commission Launches Evaluation of the Geo-Blocking Regulation
On 11 February 2025, the European Commission launched a call for evidence to seek stakeholders’ views on the Geo-Blocking Regulation (EU) 2018/302 to assess its effectiveness. The Geo-Blocking Regulation prohibits geography-based restrictions that limit online shopping and cross-border sales within the European Union.
Financial Affairs
Commission Proposes to Amend CSDR and Shorten Settlement Cycle, ESMA Consults on Technical Amendments to Settlement Standards
The Commission is proposing to shorten the settlement cycle under the Central Securities Depository Regulation (CSDR) while the European Securities and Market Authority (ESMA) is consulting on technical amendments to standards in relation to settlement discipline.
Omnibus Simplification Package: Parliament and Council Start Internal Discussions
Member States and Members of the European Parliament (MEPs) started examining the simplification proposal put forward by the European Commission (Commission), outlining next steps and indicative timeline for its adoption.
Other
European Commission Proposes Simplification CBAM Ahead of Full Entry into Force
The European Commission has proposed a series of measures to simplify the implementation of the EU Carbon Border Adjustment Mechanism (CBAM), which is set to take full effect in January 2026.
ANTITRUST AND COMPETITION
European Commission Launches Evaluation of the Geo-Blocking Regulation
On 11 February 2025, the European Commission (Commission) launched a call for evidence on the Geo-Blocking Regulation (EU) 2018/302 (Geo-Blocking Regulation) aimed at evaluating its effectiveness. Geo-blocking refers to the practice used by online sellers to restrict online cross-border sales based on nationality, residence, or place of establishment. This type of conduct can be implemented in different forms, such as blocking access to websites, redirecting users to country-specific sites, or applying different prices and conditions based on the user’s location.
The Geo-Blocking Regulation, which entered into force on 3 December 2018, lays down provisions that aim at preventing these practices. It implements the “shop-like-a-local” principle, under which customers from other Member States should be able to purchase under the same conditions as those applied to domestic customers. Thus, the Geo-Blocking Regulation aims at eliminating unjustified geo-blocking and other forms of discrimination based on nationality, place of residence, or establishment within the European Union (EU).
The call for evidence seeks feedback from stakeholders, including consumers, businesses, and national authorities, to assess whether the Geo-Blocking Regulation has met its objectives and to identify any remaining barriers to cross-border trade or whether further measures are needed to enhance its effectiveness. In particular, the evaluation will cover issues raised by stakeholders, such as territorial supply constraints and cross-border availability of (and access to) copyright-protected content. The call for evidence is based on the review clause set forth in Article 9 of the Geo-Blocking Regulation, which requires the Commission to report on its evaluation to the European Parliament, the Council of the EU, and the European Economic and Social Committee. The scope of the evaluation includes the period running from 3 December 2018 to 31 December 2024 and will cover the entire European Economic Area (EEA) which comprises the EU 27 Member States and Liechtenstein, Iceland, and Norway.
The evaluation should help the Commission to determine whether further measures are needed to address perceived barriers and strengthen cross-border trade in the EU. Therefore, based on the feedback received during the call for evidence, the Commission may consider changes to the current Geo-Blocking Regulation to enhance consumer protection, promote cross-border trade, and foster a more integrated and dynamic EU economy. Stakeholders were invited to provide feedback until 11 March 2025. Subsequently, the Commission will launch a public consultation consisting in the form of a questionnaire.
Geo-blocking is also relevant from a competition law enforcement perspective. In 2021, the Commission imposed a fine on Valve and five video game publishers of €7.8 million for bilaterally agreeing to geo-block video games within certain EEA Member States in breach of Article 101 of the Treaty on the Functioning of the European Union. The Commission found that the agreement between Valve and each publisher inadmissibly partitioned the EEA market. Likewise, in May 2024, the Commission fined one of the world’s largest producers of chocolate and biscuit products €337.5 million for engaging in anticompetitive agreements or concerted practices aimed at restricting cross-border trade of various chocolate, biscuit, and coffee products.
The continued focus on geo-blocking practices confirms the Commission’s strong stance against any perceived restrictions to the detriment of the EU single market.
FINANCIAL AFFAIRS
Commission Proposes to Amend CSDR and Shorten Settlement Cycle, ESMA Consults on Technical Amendments to Settlement Standards
On 12 February, the Commission adopted a proposal to amend the Central Securities Depositories Regulation (CSDR) to shorten the securities settlement cycle from two business days to one.
This initiative builds on the European Securities and Markets Authority (ESMA) report, which assessed the feasibility, impact, and implementation roadmap for the transition to a shorter settlement cycle. The Commission’s proposal amends Article 5 of the CSDR, mandating that transactions in transferable securities be settled no later than the first business day after trading. Following ESMA’s recommendations, the Commission proposes that the new cycle take effect on 11 October 2027. The proposal is now under review by the European Parliament’s Economic and Monetary Affairs Committee (ECON), with Johan Van Overtveldt (European Conservatives and Reformists Group (ECR), Belgium) serving as leading rapporteur, and by Member States at the Council of the EU. Once both institutions agree on their positions, negotiations will take place with the Commission to finalize the legislative text.
In a related development, on 13 February, ESMA launched a public consultation on amendments to the regulatory technical standards on settlement discipline, addressing key operational challenges in settlement efficiency. The amendments propose stricter requirements for timely trade confirmations, automation through standardized electronic messaging formats, and improved reporting mechanisms for settlement failures. ESMA welcomes feedback and comments on the amendments by 14 April 2025.
Omnibus Simplification Package: Parliament and Council Start Internal Discussions
On 10 and 11 March, Members of the European Parliament (MEPs) and Member States representatives at the Council of the EU started internal discussions on the proposed Omnibus simplification package, which aims to (i) postpone the entry into force of the requirements under the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CS3D)—renamed “Omnibus I,” and (ii) simplify sustainability requirements under CSRD, CS3D, the Taxonomy Regulation and specific provisions of the Carbon Border Adjustment Mechanism (CBAM)—renamed “Omnibus II.”
European Parliament
During a plenary session on 10 March, MEPs held an initial exchange of views on the package highlighting the positioning of each party on the proposal. MEPs from the European People’s Party (EPP) strongly support the package and advocate for a swift adoption of the first part of the proposal postponing the application of CS3D and CSRD. For that, on 3 April, MEPs approved a request for urgent procedure introduced by the EPP.
MEPs from Renew Europe Group (Renew) expressed only limited support for the Omnibus II proposal and, while they recognize the need for simplification to foster economic growth, they emphasized the importance of ensuring that the rules remain effective through negotiations. Representatives from the Socialists & Democrats and the Greens largely opposed the proposal, expressing strong concerns about the potential dilution of previously agreed requirements. Other MEPs from the far-right ECR Patriots for Europe and Europe of Sovereign Nations supported the package but called for further deregulation, while representatives from The Left were entirely opposed to the proposal and rejected the Commission’s approach to simplification in this context.
In a related development, on 19 March, the European Parliament Committee on Legal Affairs, the Committee responsible for the Omnibus package, appointed MEP Jörgen Warborn (EPP, Sweden) as lead negotiator for the Omnibus II proposal. Pascal Canfin (France) has been appointed as shadow rapporteur for Renew, while other political groups are expected to shortly communicate shadow rapporteurs involved on the file. Other committees involved (Foreign Affairs; International Trade; ECON; Employment and Social Affairs; and Environment, Climate and Food Safety) are expected to also announce whether they will provide an opinion on the file. The next meeting on this part of the proposal has been set for 23 April 2025.
Council of the EU
On 11 March, Member States in the Economic and Financial Affairs configuration of the Council of the EU also discussed the proposal. All governments showed strong support for the postponement of the rules and welcomed the Commission’s approach in this area. However, not all Member States agreed on the substantial amendments introduced to CSRD and CS3D; France opposes eliminating civil liability rules, while the Czech Republic, Italy, and Hungary push for deeper deregulation to boost competitiveness. Trade and business ministers further examined the package on 12 March during a Competitiveness Council meeting, showing general support for the amendments put forward. While it seems that an agreement will be quickly reached for the Omnibus I, Member States will need to further negotiate on the substantial amendments introduced by the second part of the proposal (so called “Omnibus II”).
Timeline
For both proposals, Member States and MEPs will need to negotiate the final content of the directives through interinstitutional negotiations. The Omnibus I will likely be adopted in the next three to six months, with transposition into national law by end of this year, meaning that the postponement will presumably happen before an additional wave of companies would have been obliged under the directives in their current form. The substantial amendments introduced by Omnibus II will likely involve lengthier negotiations within the Council of the EU and the Parliament.
OTHER
Commission Proposes Simplification of CBAM Ahead of Full Entry Into Force
CBAM, the world’s first carbon border tariff, is set to come into full force in January next year. This means that importers of goods covered by CBAM legislation (iron and steel, cement, fertilizers, aluminum, electricity, and hydrogen) will be required to declare the emissions embedded in their imports and surrender corresponding certificates, and be priced based on the EU Emissions Trading System (ETS). However, even before CBAM is fully implemented, the Commission has already proposed changes to the legislation in response to economic competitiveness and geopolitical challenges.
As part of the Omnibus simplification package announced on 26 February, the Commission proposed several changes to streamline CBAM implementation.
Firstly, the Commission aims to simplify CBAM requirements for small importers, primarily small and medium-sized enterprises and individuals, by introducing a new CBAM de minimis threshold exemption of 50 tons per shipment. This will exempt over 182,000 or 90% of importers from CBAM obligations, while still covering over 99% of emissions in scope.
Secondly, for importers that remain within the scope of CBAM, the proposed changes aim to simplify compliance with its obligations. Specifically, the proposal simplifies the calculation of embedded emissions for certain goods, clarifies the rules for emission verification, and streamlines the process for calculating the financial liability of authorized CBAM declarants.
These changes will now have to be approved by the European Parliament and EU Member States before they come into force.
Additionally, a comprehensive review of CBAM is expected later this year to assess the potential extension of the mechanism to additional ETS sectors (potentially including aviation and maritime shipping), downstream goods, and indirect emissions. As part of this review, the Commission will also explore measures to support exporters of CBAM-covered products facing carbon leakage risks. A legislative proposal is anticipated to follow in early 2026.
Covadonga Corell Perez de Rada, Simas Gerdvila, Antoine de Rohan Chabot, Kathleen Keating, Lena Sandberg, and Sara Rayon Gonzalez contributed to his article.
CFTC Clarifies that FX Window Forwards are Not “Swaps”
On April 9, 2025, the Markets Participants Division and the Division of Market Oversight (collectively, the “Divisions”) of the Commodity Futures Trading Commission (the “CFTC”) published a Staff Letter (the “Staff Letter”) clarifying the Divisions’ views on the regulatory treatment of certain foreign exchange products. The Divisions clarified that certain foreign exchange window forwards (“Window FX Forwards”) should be considered “foreign exchange forwards” under the CFTC’s regulations and, as a result, exempt from most CFTC regulations relating to swaps. The Divisions also clarified that package foreign exchange spot transactions that settle within T+2 are to be treated as “spot” transactions and outside the scope of most of the CFTC’s swap regulations.
Background
All “swaps” as defined in the Commodities Exchange Act and the CFTC’s regulations are subject to regulation by the CFTC. There are a number of products that either fall outside the scope of, or are otherwise exempted from, the definition of “swap” and therefore exempted from most CFTC regulations as they relate to swaps. These include “spot” transactions and “foreign exchange forwards”, among others. A spot transaction is an agreement to physically exchange currencies within the customary timeline for the relevant spot market (generally T+2). A “foreign exchange forward” is an agreement to exchange currencies at an agreed price on a specific future date.
Window FX Forwards
Window FX Forwards are transactions where the parties enter into an agreement to exchange two currencies at an agreed price on one or more dates during a set period or “window”, sometimes specific identified dates and sometimes any date within the specified window. The Window FX forward will settle on the last day of the window if the electing party does not elect an earlier date for settlement.
Market participants have been uncertain as to the regulatory treatment of Window FX Forwards because the definition of “foreign exchange forward” requires that the transaction be settled on a “specific future date.” Some market participants have been treating Window FX Forwards as “swaps” subject to CFTC regulations and others treating them as exempted “foreign exchange forwards.” The Staff Letter clarified that the Divisions interpret “specific future date” to mean a “clearly identified future date.” Since the exchange under a Window FX Forward will take place on one or more dates clearly identified upon entering into the transaction, they fall within the definition of “foreign exchange forward” and are exempt from the definition of “swap.” As a result, most regulatory requirements applicable to “swaps”, including the exchange of regulatory margin, will not apply to these transactions.
Package FX Spot Transactions
Package foreign exchange spot transactions (“Package FX Spot Transactions”) are two transactions where, in the first transaction, the parties agree to physically exchange two currencies on the next business day after the trade date (T+1) and, in the second transaction, agree to exchange the same two currencies in the opposite direction on the second following business day after the trade date (T+2). There can be variations where the parties exchange currencies on the same day they agree to the trade (T+0) under the first transaction and the next business day (T+1) for the second transaction, or a “roll” where the parties agree to exchanges over a series of consecutive days. While each transaction is documented separately, they are entered into as a “package”, meaning both parties agreeing to the first transaction is contingent on both parties agreeing to the second transaction and both transactions are priced together as a “package.” However, because each transaction is documented separately, they are separate legal obligations and performance under the second transaction is not linked to, or dependent upon, performance under the first transaction. The Staff Letter clarifies that these Package FX Spot Transactions should be treated as individual spot transactions outside the scope of the definition of “swap” and applicable CFTC regulations, provided that they are executed, confirmed and settled as individual transactions within the customary timeline for the relevant spot market (generally T+2).
What does this mean for Window FX Forwards and Package FX Spot Transactions?
As a result of being exempted or excluded from the definition of “swap” Window FX Forwards and Package FX Spot Transactions are not subject to most of the CFTC’s swap regulations. These products are not required to be traded on a registered exchange or cleared through a registered clearinghouse. Swap Dealers are not required to post or collect regulatory margin on these products, making them more affordable to market participants. It is important to note that foreign exchange forwards, and therefore Window FX Forwards, remain subject to certain trade reporting requirements and business conduct standards.
President Trump Issues Executive Order on “Strengthening the Reliability and Security of the United States Electric Grid”
On April 8, President Donald Trump issued a series of orders and a proclamation (collectively the “orders”) intended to revitalize US coal production and the industrial use of coal, including for power generation. Among them was an Executive Order on “Strengthening the Reliability and Security of the United States Electric Grid”[1] directing the Secretary of Energy to take a series of steps intended to enhance electric grid reliability and security.
The order states “It is the policy of the United States to ensure the reliability, resilience, and security of the electric power grid,” and that the “electric grid must utilize all available power generation resources, particularly those secure, redundant fuel supplies that are capable of extended operations” to assure adequate generation, meet growing demand, and address the national energy emergency declared on January 20.[2]
Its directives to the Secretary include the following:
“[T]o the maximum extent permitted by law, streamline, systematize, and expedite the Department of Energy’s processes for issuing orders under section 202(c) of the Federal Power Act” during periods when a grid operator “forecasts a temporary interruption of electric supply.” FPA section 202(c) authorizes the Secretary, whenever he determines that an emergency exists “by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes . . . to require by order such temporary connections of facilities and such generation, delivery, interchange, or transmission of electric energy as in its judgment will best meet the emergency and serve the public interest.” It has been used sparingly during its history and almost always in response to requests by utilities or states to address short-term emergency conditions. Section 202(c) was substantially amended by Congress in 2015, ostensibly to provide liability protection for entities ordered to operate, but those changes also made use of the authority more cumbersome.
Within 30 days of the Executive Order, “develop a uniform methodology for analyzing current and anticipated reserve margins for all regions of the bulk power system regulated by the Federal Energy Regulatory Commission,” and upon doing so, “identify current and anticipated regions with reserve margins below acceptable thresholds.”
“[E]stablish a process by which the methodology . . . and any analysis and results it produces, are assessed on a regular basis, and a protocol to identify which generation resources within a region are critical to system reliability.” The protocol must include all mechanisms available to retain generation identified as critical.
“[P]revent, as the Secretary of Energy deems appropriate and consistent with applicable law, including section 202 of the Federal Power Act, an identified generation resource in excess of 50 megawatts of nameplate capacity from leaving the bulk-power system or converting the source of fuel of such generation resource if such conversion would result in a net reduction in accredited generating capacity,” as determined under the reserve margin methodology developed as a result of the Order.
To date, the Department of Energy (DOE) has not issued a public notice regarding revisions to its FPA section 202(c) procedures or the development of a uniform reserve margin methodology. DOE’s existing emergency authorities web page has also not been updated. Trade press reports indicate that the North American Electricity Reliability Corporation (NERC) staff is in contact with DOE regarding the new methodology. However, it is unclear to what extent DOE will consider industry input on the new methodology by the 30-day or 90-day deadlines.
By its terms, the Executive Order applies to coal-fired generation and was issued alongside other orders that focused exclusively on promoting coal and coal-fired generation. However, other resource types seemingly could be subject to it.
The Executive Order raises various legal questions, several of which might be tested in litigation. These include:
Whether the Secretary’s authority under FPA section 202(c) is broad enough to support the actions envisioned by the Executive Order or whether section 202(c) may be used only for temporary emergencies when supply is, or is in imminent danger of being, insufficient to meet demand.[4]
Whether DOE has legal authority to prohibit resources from retiring or from changing their fuel source for indefinite periods.
Whether the Executive Order is in conflict with the overall structure of the FPA, which generally reserves regulatory authority over electric generation to the States.
Whether there will be legal conflicts between DOE’s reserve margin methodology and NERC and Federal Energy Regulatory Commission [FERC]-approved resource adequacy, capacity accreditation, and “reliability must run” rules.
[1] Executive Order No. 14262, 90 FR 15521 (April 14, 2025).
[2] “Declaring a National Energy Emergency,” Executive Order No. 14156, 90 FR 8433 (Jan. 29, 2025).
[3] Robb: NERC Working with DOE on Energy Orders, RTO Insider (April 15, 2025).
[4] In Richmond Power & Light v. FERC, 574 F.2d 610, 617 (D.C. Cir. 1977), the court suggested that section 202(c) “speaks of ‘temporary emergencies,’ epitomized by wartime disturbances, and is aimed at situations in which demand for electricity exceeds supply and not at those in which supply is adequate[.]”
2025 ABA Antitrust Section Spring Meeting Highlights
The Antitrust Section of the American Bar Association (ABA)’s 73rd Annual Spring Meeting took place from April 2 to April 4, in Washington, D.C. At the conference, over 3,900 registrants from 70 countries, global antitrust enforcers, and practitioners gathered to discuss the latest developments in antitrust. Below are some details and takeaways from the meeting with specific perspectives for the United States, European Union, and Mexico.
Go-To Guide:
United States: Highlighted key antitrust developments, including the implementation of the revised HSR form, retention of the 2023 merger guidelines, increased focus on AI-related enforcement, and a balanced but vigilant approach to merger review.
FGS Global + Capitol Forum: Hosted discussion on “Antitrust under Trump,” highlighting expectations for enforcement.
European Union: Emphasized a shift toward supporting economic growth while maintaining strong enforcement, with continued focus on mergers, cartel enforcement, and oversight of tech markets, including AI and algorithms.
Mexico: Highlighted a focus to strengthen cross-border cooperation and align on sustainable and innovation-driven competition agendas.
United States
From a U.S. perspective, the panelists shared insights and opinions on several key topics, including the revised Hart-Scott-Rodino (HSR) form, retention of the 2023 merger guidelines, the growing national and international focus on AI, and ongoing developments in antitrust enforcement.
Hart-Scott-Rodino (HSR) Form: Panelists discussed the new HSR form, highlighting that the form would enable agencies to more efficiently identify anticompetitive mergers and quickly approve deals that benefit consumers. While some panelists expressed surprise, others supported its implementation as necessary. However, the consensus was that the form will lead to increased time and costs for filings in light of the significantly expanded information required upfront with all transactions, rather than only for deals under a substantive investigation.
Merger Guideline Retention: The current administration has announced a policy to retain the updated merger guidelines that were released in 2023—favoring continuity and only selective revisions as needed in the future based on how the guidelines are being used in practice. Panelists at the spring meeting were not surprised by the decision as ultimately they are not binding on either the DOJ or FTC. Panelists also highlighted how resource constraints, such as hiring freezes, may impact enforcement priorities, and speculated that DOJ and FTC may focus on sectors like agriculture, labor, and technology.
Artificial Intelligence (AI): Panelists noted an increased focus on AI at both the national and international level. Panelists discussed possible enforcement priorities under the current U.S. administration and the legal landscape more broadly. The discussion highlighted the use of AI in advertising, global cooperation, algorithmic pricing, state regulation, increased consumer protection scrutiny, and continuous AI innovation. A common theme throughout the discussions was the challenge of tackling the uncertainties involved in client counseling given the shifting legal environment around issues related to AI.
Antitrust Merger Enforcement: Panelists discussed the potential direction of antitrust enforcement under the current administration, noting that enforcers may adopt a more deal-friendly stance than in the past, while still being inclined to challenge certain mergers. Former officials predicted a greater openness to settlements and efficiency arguments but emphasized that scrutiny would remain strong in sectors such as agriculture, pharmaceuticals, labor, and technology. Panelists expected that with respect to merger remedies, structural ones—as opposed to behavioral commitments that are only in effect for the term of the settlement—will still be favored. However, the general consensus was while the authorities have signaled more openness to remedies, that should not be interpreted as a more permissive approach to deal evaluations in general.
FGS Global + Capitol Forum: Panel Discussion
Alongside the ABA’s Antitrust Section of the Spring Meeting, FGS Global + Capitol Forum separately presented a panel discussion “Antitrust under Trump” on April 2, 2025, where leaders from the DOJ and FTC spoke.
Highlights from the panel include noting the return of grants of early termination of the HSR waiting period. Regulators noted that the revised HSR form gives regulators additional information sooner in the review process, enabling them to grant early termination where warranted.
The panel suggested the second Trump administration’s antitrust enforcement would be similar to the first Trump administration. Thus far there has been an interest in Big Tech and censorship, as well as other priorities focused on where Americans spend their money: housing, healthcare, insurance, transportation, food, groceries, and entertainment. Authorities also noted a continued interest in labor markets, seeking to protect Americans as consumers and workers.
FTC Chair Ferguson noted his goals of promoting certainty and clarity so that businesses can plan appropriately, noting that he kept the 2023 merger guidelines for that reason.
Assistant Attorney General Slater noted that in contrast to the Biden administration, the FTC and DOJ will be more amenable to remedies in merger cases. The agencies will support remedies where they are confident the proposed remedy will be successful. As a time saving suggestion, regulators noted an openness to parties proposing a remedy contemporaneously with HSR filing (fix it first).
The FTC’s non-compete ban is currently stayed. Ferguson dissented, and it is not his priority, but authorities noted that many non-compete agreements would not meet a rule of reason standard. Those non-competes would still be challenged as needed.
European Union (EU)
With respect to enforcement practice in the EU, both by the European Commission and European nations, delegates noted a subtle shift in prioritization and enforcement practice. Agencies acknowledged the role they should play to encourage economic growth. In fringe events, senior officials from the European Commission recognized that they could do more to give guidance and to facilitate collaboration, especially where it potentially supports growth. They cited steps already taken to listen to industry and the professional community as examples of how they are part of a solution. However, there was no suggestion that their commitment to enforcement would be diluted in the forthcoming year.
Merger Control: Representatives of the European agencies argued that their enforcement practice has been highly targeted over the years and that their interventions have increased growth through competition, rather than the opposite. There also remains a desire within the EU to tackle those transactions that fall below filing thresholds but nevertheless give rise to potential competition concerns. The agencies indicated that they remain committed to addressing this issue.
Cartel Enforcement: The European Commission highlighted that cartel enforcement continues to remain a priority. The European Commission reported reducing its reliance on leniency applications, though its pipeline of cases remains strong due to an improved ability to identify suspected breaches of law through technology. The European Commission is deploying new technology to screen evidence and to identify potential breaches, and it has recently commenced investigations using these tools.
Technology Market Enforcement: The agencies additionally mentioned that enforcement within technology markets will remain a priority. Despite the adoption of bespoke regulation (e.g. the Digital Markets Act), European agencies continue to see antitrust enforcement as evolving. AI and algorithms are areas the agencies are monitoring closely.
Throughout the meeting, European agencies emphasized their desire to continue collaborating with their peers across the Atlantic. Generally, they underscored the desire to continue collaboration efforts in connection with individual cases.
Lastly, there were some identifiable differences, particularly with respect to ex ante regulation of digital platforms. This is one area that may be debated between the agencies in the months to come.
Mexico
Andrea Marvan, chair of Mexico’s competition authority, attended the meeting and engaged in discussions with officials from the U.S. FTC and the National Association of Attorneys General to explore avenues for strengthening cross-border cooperation in fostering fair and dynamic markets.
Additionally, Marvan connected with European leaders, including Teresa Ribera, executive vice-president for a Clean, Just, and Competitive Transition at the European Commission, and Olivier Guersent, director-general for Competition at the European Commission. During this discussion, the group focused on aligning agendas to promote innovation and competition through sustainable practices.
Marvan emphasized the importance of international collaboration across the board to assist in driving competition policies that benefit consumers and empower micro, small, and medium-sized enterprises.
Holly Smith Letourneau, Nicole Ring, and Manish Das contributed to this article.
TO ADVERTISE OR NOT TO ADVERTISE: Court Holds Fax to Pharmacy May Cross the Line
A new TCPA suit highlights the tension over what constitutes an “advertisement” under the statute. In Mills Cashaway Pharmacy, Inc. v. Change Healthcare Inc. (M.D. Ten., Apr. 10, 2025) the plaintiff pharmacy alleged that it received an unsolicited fax from defendant Change Healthcare promoting the prescription drug Xarelto. Change Healthcare moved to dismiss, arguing the fax was purely informational. The court, however, found the complaint plausibly alleged that the fax constitutes an unsolicited advertisement under the TCPA, and allowed the case to proceed.
Mills Cashaway Pharmacy, Inc. (“Mills”), a pharmacy based in Parks, Louisiana, filed suit on August 9, 2024, asserting a single claim for violation of the TCPA. The complaint alleges that, in September 2020, Mills received an unsolicited fax on its dedicated fax line. The fax, purportedly sent by Change Healthcare, contained the name and prescription number of one of Mills’ patients and directed the reader to “visit Xarelto.com” for more information about the drug, including safety and side effect details.
Mills alleges that the fax was designed to promote a 90-day supply of Xarelto over a 30-day supply or a different drug altogether, encouraging recipients like the pharmacy to influence patient behavior and drive demand for the product. According to the complaint, the fax falsely stated that the patient’s insurance plan would cover the 90-day supply. Mills asserts there was no preexisting business relationship between the parties and notes that the fax lacked the statutorily required opt-out notice.
The TCPA prohibits sending a fax that is an “unsolicited advertisement” unless, among other requirements, the fax has a satisfactory opt-out notice. There is a private right of action for recipients of unsolicited advertisements with statutory damages of $500 per violation. Here, the parties did not dispute that the fax Change Healthcare sent to Mills was unsolicited and lacked an opt-out provision. The sole issue at dispute was whether the fax qualified as an advertisement within the meaning of the TCPA. Change Healthcare argued it did not, asserting that it merely provided information to a patient already prescribed Xarelto
The Mills court observed that under the TCPA, an “unsolicited advertisement” is defined as any material that promotes the commercial availability or quality of goods or services, sent without the recipient’s prior consent. The Court discussed several cases interpreting the TCPA’s definition of “advertisement”:
S.A.S.B. Corp. v. Johnson & Johnson Health Care Sys. Inc. (D.N.J. 2024): The court ruled that a fax about Xarelto was not an ad, as it targeted patients already prescribed the drug and didn’t contain pricing or overt promotional content. The “overall thrust” of the message was deemed informational.
Michigan Urgent Care & Primary Care Physicians, P.C. v. Medical Security Card Co. (E.D. Mich. 2020): In contrast, the court found a fax promoting a “free” prescription savings card to be an advertisement. Even though the program was free, the court determined that the fax supported the defendant’s business model, which depended on broad usage of the card, potentially impacting defendant’s profits.
Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc. (6th Cir. 2020): A fax requesting updated contact information was ruled to be an advertisement because it was a pretext for future marketing efforts. The Sixth Circuit emphasized that courts must look beyond the face of the fax to its intent and commercial purpose.
In light of the above precedent, the Mills Court rejected Change Healthcare’s argument that the fax contained purely informational messaging. First, the Court noted that although the fax appeared to reference a specific patient, it was sent to the pharmacy—not the patient. Second, the message encouraged a switch to a 90-day supply, which the court found could reasonably be construed as promoting the commercial availability of Xarelto.
The court emphasized that determining whether a fax is an advertisement is not always obvious from its face. Citing Enclarity and Michigan Urgent Care, it reiterated that a defendant’s intent and the broader context may render an ostensibly informational fax commercial in nature. The complaint plausibly alleged that the fax was designed to increase sales of Xarelto by encouraging pharmacies to influence patient prescriptions—conduct that could be motivated by profits.
While the Change Healthcare argued the purpose was merely to notify patients of coverage and convenience, the court found that the plaintiff’s allegations and the content of the fax were sufficient, at this stage, to proceed under the TCPA’s definition of an advertisement.
The court’s ruling underscores a key principle in TCPA litigation: the determination of whether a fax is an “advertisement” often hinges not only on explicit language but also on the context, purpose, and business model underlying the message. Even materials presented as purely informational can support a TCPA claim if they plausibly serve a commercial aim.
Digital Policy: Highlights of the German Coalition Agreement 2025
The newly published German Coalition Agreement 2025 (CA 2025), German language version available here, outlines a digital agenda of the new German government, aimed at strengthening Germany’s position as a leader in digital innovation, data protection, and technological sovereignty. This GT Alert provides an overview of key digital policy areas that the CA 2025 addresses, highlighting the new government’s priorities and potential implications for businesses operating in Germany.
1. Data Protection
The coalition emphasizes the importance of harmonizing and simplifying data protection standards while promoting innovation and economic growth. Key measures include:
Simplification for SMEs and Non-Commercial Activities: The new government plans to leverage the GDPR’s flexibility to simplify compliance for small and medium-sized enterprises (SMEs). On an EU level, the coalition wants to exclude SMEs, non-commercial organizations, and “low risk activities” from the GDPR’s scope (lines 2103 et seqq.).
Centralized Oversight: The Federal Data Protection Commissioner would be empowered (and renamed) to oversee data protection, data usage, and information freedom, consolidating responsibilities for greater efficiency (lines 2248 et seqq.).
Opt-out Instead of Consent: Burdensome consent requirements would be replaced by opt-out solutions “in accordance” with EU laws (lines 2096 et seqq.).
2. Data Sharing
The CA 2025 promotes a culture of data sharing to foster innovation while safeguarding individual rights. Highlights include:
Public Money, Public Data: Commitment to making data from publicly funded institutions openly accessible, with robust data trustee mechanisms to foster trust and quality (lines 2243 et seqq.).
Comprehensive Data Framework: Aim to develop modern regulations on data access and data economy for promoting data ecosystems in a comprehensive framework (lines 2238 et seqq.).
3. Online Platforms and Social Networks
The coalition underscores the need for fair competition and user protection, particularly from disinformation, in the digital space.
Platform Regulation: General commitment to supporting the EU’s Digital Services Act and Digital Markets Act to ensure platforms address systemic risks like disinformation and remove illegal content (line 2285).
Transparency and Accountability: Online platforms would be required to comply with existing obligations on transparency and content moderation. Even stricter liability for user content is being considered (lines 3926 et seqq.).
Possible Bot Identification Measures: The introduction of mandatory bot identification provisions for digital players is “being considered” (lines 2290 et seqq.).
4. Digital Infrastructure
The coalition prioritizes expanding Germany’s digital infrastructure to support economic growth and digital transformation.
Data Center Hub: The coalition aims to make Germany Europe’s leading data center hub, with a focus on energy-efficient operations and integration into district heating systems (lines 2192 et seqq.).
Nationwide Fiber Optic Rollout: The new government commits to accelerating the deployment of fiber-optic networks and ensuring high-speed internet access for all households (lines 2201 et seqq.).
Mobile Coverage and Satellite Technology: Efforts would be made to enhance mobile network coverage and explore satellite technology for underserved areas (lines 2201 et seqq., 2279 et seqq.).
5. Public Sector Digitalization
The coalition envisions a user-centric, fully digital public administration.
Restructuring Government Bureaucracy: The new government promises to reduce administrative staff in general and, in particular, wants to reduce the total number of federal authorities (lines 1811 et seqq.). At the same time, a new federal ministry for digitization and state modernization would be created (line 4564), which underscores the coalition’s focus on digitization topics.
Simplifying Administrative Processes: The new government intends to eliminate unnecessary formalities to simplify administrative processes for businesses (lines 339 et seqq., 1798 et seqq., 2171 et seqq.). Particularly, with the adoption of a new general clause, the written form requirement is to be abolished “wherever possible” (lines 2177 et seqq.). Administrative processes would be streamlined and automated, with a focus on eliminating the need for physical paperwork (lines 2155 et seqq.).
“One Stop Shop” for Administrative Services: The coalition aims to enable straightforward digital administrative services via a central platform (one-stop shop). A centralized platform would enable German citizens to access government services digitally, with mandatory digital identities for all citizens (lines 1802 et seqq.).
“Once Only” Approach for Citizens: Intergovernmental data sharing commitments would ensure that citizens have to provide their data only once to the government (lines 2080 et seqq.).
Public Procurement: Consolidated procurement platforms would standardize public procurement (especially of IT services) and help reduce dependence on “monopolistic” suppliers (lines 2075 et seqq.).
6. Digital Sovereignty
The coalition aims to reduce Germany’s dependencies on non-European technologies and to strengthen its digital autonomy.
Open Source and Open Standards: The new government aims to promote open-source solutions and define open interfaces to enhance interoperability and security, without providing many details (lines 2139 et seqq., 2172 et seqq.).
Strategic Investments: Funding would be directed towards key technologies such as cloud computing, artificial intelligence (AI), and cybersecurity (lines 108 et seqq.).
7. Artificial Intelligence (AI)
AI is positioned as a cornerstone of Germany’s digital strategy.
Investments in AI and Cloud Technology: The coalition promised “massive” investments in AI and cloud technologies, without going into further detail (line 108).
“AI Gigafactory” in Germany: The coalition aims to establish at least one European “AI gigafactory” in Germany (lines 2193 et seqq., 2509 et seqq.).
Regulatory Framework: The new government wants the EU AI Act implemented in a way that fosters innovation while addressing ethical and safety concerns (lines 2256 et seqq.). Particularly, burdens on the economy resulting from the technical and legal specifications of the AI Act would be removed (lines 2268 et seqq.).
Copyright Balance: The coalition plans to ensure fair remuneration for creators in generative AI development, mandate fair revenue sharing on streaming platforms, and enhance transparency in content usage (lines 2824 et seqq.).
Conclusion
The German CA 2025 sets a vision for digital transformation, emphasizing the streamlining of regulatory and administrative hurdles, infrastructure development, and technological sovereignty. While many details remain unclear, businesses should prepare for regulatory changes and explore opportunities arising from the new government’s focus on innovation and digitization. As these policies take shape, staying informed and proactive will be key to navigating the evolving digital landscape in Germany.
Staying I-9 and E-Verify Compliant: Updates for Employers
USCIS has published a new version of Form I-9 and effected new updates to the form and E-Verify.
Employers can use the new 01/20/2025 edition date (expiring 5/31/2027) Form I-9, but the following previous versions continue to be valid:
08/01/23 edition date, valid until 05/31/2027; and
08/01/23 edition date, valid until 07/31/2026.
Employers using an electronic version of Form I-9 must update their systems with the new version by 07/31/2026, and E-Verify+ participants will see the 01/20/25 edition date and 05/31/2027 expiration date reflected in Form I-9NG.
The 01/20/2025 edition date lists “Alien Authorized to work” as an option under Section 1, replaces the word “gender” with “sex” under the description of two List B documents (consistent with the recent changes to the USCIS Policy Manual), and includes a revised DHS Privacy Notice to the instructions.
Additionally, since April 3, 2025, the checkbox “A noncitizen authorized to work” on E-Verify and E-Verify+ has been updated to “An alien authorized to work.” Because employees may be completing prior versions of Form I-9, however, even if an employee selects “A noncitizen authorized to work” on the form, employers must select the checkbox “An alien authorized to work” in E-Verify.
DOJ Sets New Focus and Priorities in Digital Assets Enforcement
On April 7, 2025, U.S. Deputy Attorney General Todd Blanche issued a memorandum titled “Ending Regulation by Prosecution” (the “Memorandum”), which set out clear and direct enforcement priorities for the U.S. Department of Justice (“DOJ”) relating to digital assets. The Memorandum clarifies that DOJ is not a digital assets regulator and that it will not continue with what it characterizes as the prior Administration’s “regulation by prosecution” strategy. Rather, DOJ will now prioritize enforcement actions that target individual bad actors that use digital assets to perpetuate scams or are engaged in other criminal activity involving digital assets such as organized crime, narcotics, and terrorism. Importantly, the Memorandum scales back the scenarios in which DOJ will pursue enforcement actions against digital asset exchanges or other platforms (e.g., mixers or tumblers) that bad actors may use to conduct illegal activity.
In setting out the DOJ’s new enforcement priorities, the Memorandum adheres to the principles contained in Executive Order 14178 (“Strengthening American Leadership in Digital Financial Technology,” January 23, 2025), which outlines the Trump Administration’s policy of promoting “responsible growth and use of digital assets.” The Memorandum also cites Executive Order 14157 (“Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists,” January 20, 2025), which reflects the U.S. government’s decision to seek the “total elimination” of certain international cartels, criminal organizations, and terrorists.
The Memorandum directs prosecutors to refrain from charging regulatory violations involving digital assets, including unlicensed money transmission, registration requirement failures, and Bank Secrecy Act (“BSA”) violations, unless the defendant “willfully” did not comply with the licensing or registration requirement. Additionally, prosecutors are instructed not to pursue charges in situations where DOJ would be required to litigate whether a digital asset is a “security” or a “commodity,” as long as there is a “an adequate alternative criminal charge available, such as mail or wire fraud.”
To carry out these new priorities, DOJ will shift its enforcement resources related to digital assets. Specifically, DOJ will disband the National Cryptocurrency Enforcement Team (“NCET”), which was established in February 2022 and has supported several recent high-profile digital assets investigations and prosecutions. Additionally, the DOJ’s Market Integrity and Major Frauds Unit will no longer enforce cryptocurrency actions and instead will focus on Trump Administration priorities such as immigration and procurement fraud. The DOJ’s Computer Crime and Intellectual Property Section will continue to liaise with the digital asset industry as needed.
Finally, the Memorandum addresses an issue relating to the way in which victims of digital asset fraud are compensated. Currently, regulations only allow victims to recover the value of their investment at the time of the fraud, rather than at the current fair market value. To rectify this issue, the Memorandum directs the Office of Legal Policy and the Office of Legislative Affairs to propose new legislation and regulations that would allow victims to recover a greater amount of their digital asset losses in situations involving fraud or theft.
Key Takeaways:
The Memorandum neither creates nor eliminates any current laws. Rather, it presents new enforcement and staffing priorities for DOJ, which are tied closely to recent Executive Orders and statements from the Trump Administration.
The DOJ is focused on prosecuting digital asset scams and the illicit, underground use of digital assets by terrorists, narcotics traffickers, and other organized crime elements. It will prioritize those cases by “seeking accountability from individuals” who perpetuate these crimes, as opposed to pursuing “regulatory violations” at digital asset companies.
Regulatory failures can still pose a legal risk for companies, however, particularly if the DOJ finds them to be “willful.” Additionally, it remains to be seen how U.S. states will react to the potential “enforcement vacuum” in the digital assets industry, and whether they will seek to fill the void with a more aggressive enforcement approach.