El-Husseiny v Invest Bank – Expanding Office Holder Claims? (UK)
S423 of the Insolvency Act 1986 (IA 1986) provides a route for office holders to challenge transactions where a person deliberately transfers assets at an undervalue to put them beyond the reach of creditors. The Supreme Court in El-Husseiny and another (Appellants) v Invest Bank PSC (Respondent) [2025] UKSC 4 recently confirmed what is meant by “transaction” in the context of s423 – and that the same meaning should be given to “transactions” caught by s238 and s339 of the IA 1986.
Claims under s423 can be more difficult to establish than claims under s238 of the IA 1986 because although both claims require there to have been a transaction at an undervalue (or for no consideration) s423 also requires an office holder to prove that there was an intention to put assets beyond the reach of creditors. An office holder is therefore more likely to bring a claim under s238 than s423, and for that reason, this judgment is helpful because it broadens the types of transactions that might fall within the definition of “transaction”.
Transaction is defined in s436 to include “a gift, agreement or arrangement” and the Supreme Court was not prepared to restrict the meaning of this and decided that a “transaction” includes assets not directly legally or beneficially owned by the debtor.
It is helpful to know the facts of this case to give some context to the particular transaction the court had to consider.
Facts and Decision
The s423 claim was brought in this case by Invest Bank in their capacity as a creditor of the appellants’ father, Mr Mohammad El-Husseini (not as an officeholder – but the findings apply equally to office holder claims).
Invest Bank had successfully obtained a judgment against Mr El-Husseini in Abu Dhabi for circa £20m, and they identified UK based assets against which they could enforce the judgment. Invest Bank argued Mr El-Husseini had transferred assets (most notably a property in London) to put them beyond the reach of Invest Bank.
While there were multiple assets caught by the s423 claim, the judgment focused on the transfer of the London property.
Before the London Property was transferred, it was legally and beneficially owned by a Jersey company, Marquee Holdings Limited (“Marquee”). It was worth about £4.5 million. At the time of the transfer, Mr El-Husseini was the beneficial owner of all the shares in Marquee.
Mr El-Husseini arranged with one of his sons, Ziad Ahmad El-Husseiny (“Ziad”), that he would cause Marquee to transfer the legal and beneficial ownership of the London property for no consideration.
In June 2017, Mr El-Husseini caused Marquee to transfer the legal and beneficial title to the London property to Ziad. Ziad did not pay any money or provide any other consideration either to Marquee or to Mr El-Husseini in return for the London Property.
The effect of the transfer was that Mr El-Husseini’s shareholding in Marquee was now significantly reduced, prejudicing Invest Bank’s ability to enforce its judgment against him.
The issue on appeal was whether s423 could apply to a transaction such as this – where a debtor procures a company which he owns to transfer a valuable asset owned by the company for no consideration or at an undervalue which has the effect of reducing or eliminatating the value of the debtor’s shareholding in the company, or whether such a transaction is not caught because the debtor does not personally own the asset.
The court at first instance held that the fact that the London property was not directly owned by Mr El-Husseini did not prevent the arrangement being a “transaction” for the purposes of s423. The point was appealed, and the Court of Appeal agreed with findings of the court at first instance. Ultimately as the issue raised an important point of statutory construction the Supreme Court considered the point and judgment was given.
The Supreme Court upheld the findings of the High Court and the Court of Appeal regarding the meaning of a “transaction”. The language and purpose of s423(1) is not confined to dealing with an asset that is legally or beneficially owned by the debtor but extends to this type of transaction. Restricting transactions to those that directly involve property owned by a debtor would not only require an implied restriction to be read into the provision but doing that would also seriously undermine the purpose of s423.
Concluding Comments
Despite the Bank’s claim not succeeding in this case (it was unable to demonstrate that Mr El- Husseini had the requiste intention when transferring the London property), the decision is nonetheless helpful to insolvency practitioners, as it confirms the wide meaning of the word “transaction” within s423, s238 and s339.
It also helpfully confirms that a debtor does not need to legally or beneficially own an asset for a transaction to be caught under those provisions. The most obvious example where this is likely to be the case is in situations such as those considered in this case – where a debtor owns shares in a company and causes that company to transfer valuable assets thereby reducing the value of the shareholding.
More States Ban Foreign AI Tools on Government Devices
Alabama and Oklahoma have become the latest states to ban from state-owned devices and networks certain AI tools with links to foreign governments.
In a memorandum issued to all state agencies on March 26, 2025, Alabama Governor Kay Ivey announced new policies banning from the state’s IT network and devices the AI platforms DeepSeek and Manus due to “their affiliation with the Chinese government and vast data-collection capabilities.” The Alabama memo also addressed a new framework for identifying and blocking “other harmful software programs and websites,” focusing on protecting state infrastructure from “foreign countr[ies] of concern,” including China (but not Taiwan), Iran, North Korea, and Russia.
Similarly, on March 21, 2025, Oklahoma Governor Kevin Stitt announced a policy banning DeepSeek on all state-owned devices due to concerns regarding security risks, regulatory compliance issues, susceptibility to adversarial manipulation, and lack of robust security safeguards.
These actions are part of a larger trend, with multiple states and agencies having announced similar policies banning or at least limiting the use of DeepSeek on state devices. In addition, 21 state attorneys general recently urged Congress to pass the “No DeepSeek on Government Devices Act.”
As AI technologies continue to evolve, we can expect more government agencies at all levels to conduct further reviews, issue policies or guidance, and/or enact legislation regarding the use of such technologies with potentially harmful or risky affiliations. Likewise, private businesses should consider undertaking similar reviews of their own policies (particularly if they contract with any government agencies) to protect themselves from potential risks.
A Breath of Fresh Air for Employers Managing Extended Medical Leaves
When an employee’s on-the-job injury affects their ability to perform essential job functions, federal and state law require, among other things, that an employer engage in an “interactive process” to explore potential reasonable accommodations that would allow the employee to perform those essential job functions, absent an undue hardship. Medical leave can be an effective accommodation for employees if it enables them to recover and return to work and perform those essential job functions. However, this form of accommodation often poses significant challenges for employers due to the absence of any bright-line test as to when that leave no longer becomes reasonable or becomes an undue hardship.
A recent unpublished decision by the California Court of Appeal in George Manos v. J. Paul Getty Trust provides employers with a bit more clarity as to what is – and is not – required when it comes to extended medical leaves that are provided as an accommodation.
What Exactly Happened in This Case?
George Manos was an HVAC technician at the Getty who required significant time off work following a leg fracture he sustained at work. Over the span of approximately one year, he utilized 12 weeks of protected leave and then requested extensions of his leave on several occasions, which the employer granted. Notably, with each extension request, Manos’s doctor requested “indefinite” leave but provided a return-to-work date. When Manos had been out for 10 months and made his fourth leave request, he and his doctor were asked to complete a questionnaire addressing, among other things, his ability to return to work and perform the physical tasks required of the HVAC technician role. Manos’s response listed that the end date for his leave was “unknown,” and the doctor noted that the condition was temporary and the period of impairment was 12 to 18 months. Based on these responses, the Getty considered the employee’s accommodation request to be a request for indefinite leave and made the decision to terminate.
Manos filed suit eight months after being terminated, claiming the Getty failed to engage in the interactive process and failed to accommodate his disability (among other claims). According to the Getty, not only did Manos remain unable to work, but there was no other job that he could have performed, considering his substantial restrictions. The trial court granted summary judgment in favor of the Getty, and on appeal, a three-judge panel of the Court of Appeal unanimously affirmed. Specifically, the court agreed that the Getty had adequately engaged in the interactive process, citing undisputed evidence that they did accommodate the employee through several leave extensions and made reasonable efforts to explore potential accommodations to return (through the questionnaire).
Takeaways for California Employers
While employers will continue to live without any bright-line test for determining when a leave reaches the stage of “indefinite,” this decision provides several important takeaways for employers dealing with accommodation requests implicating leaves of absence:
Granting an extended (but finite) medical leave remains a potential reasonable accommodation that generally must be considered and provided, absent undue hardship.
Medical questionnaires may be a helpful tool to utilize during such a leave. They may serve several purposes, including demonstrating an employer’s good-faith engagement in the interactive process, providing often-needed clarification on the actual meaning behind the return-to-work date on a one-page doctor’s note, and helping confirm whether other effective accommodations (besides leave) may be available.
ICO Fines Advanced Computer Software Group £3 Million Following Ransomware Attack
On March 27, 2025, the UK Information Commissioner’s Office (“ICO”) announced that it had issued a fine against Advanced Computer Software Group (“Advanced”) for £3.07 million (approx. $4 million) for non-compliance with security rules identified through an investigation following a ransomware attack which occurred in 2022.
The ICO’s investigation found that personal data belonging to 79,404 people was compromised, including details of how to gain entry into the homes of 890 people who were receiving care at home. According to the ICO, hackers accessed certain systems of a group subsidiary via a customer account that did not have multi-factor authentication. The ICO also noted that it was widely reported that the security incident let to the disruption of critical services. The ICO concluded that the group subsidiary had not implemented adequate technical and organization measures to keep its systems secure.
Initially, the ICO intended to issue a higher fine against Advanced. However, it took into consideration Advanced’s proactive engagement with the UK National Cyber Security Centre, the UK National Crime Agency and the UK National Health Service in the wake of the attack, along with other steps taken to mitigate the risk to those impacted. The final fine represents a voluntary settlement agreed between the ICO and Advanced.
EEOC/DOJ Joint DEI Guidance, EEOC Letters to Law Firms, OFCCP Retroactive DEI Enforcement [Video] [Podcast]
This week, we highlight new guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on diversity, equity, and inclusion (DEI)-related discrimination.
We also examine the Acting EEOC Chair’s letters to 20 law firms regarding their DEI practices, as well as the Office of Federal Contract Compliance Programs (OFCCP) Director’s orders to retroactively investigate affirmative action plans.
EEOC and DOJ Warn DEI Policies Could Violate Title VII
The EEOC and the DOJ jointly released guidance on discrimination in DEI policies at work, warning that these policies could violate Title VII of the Civil Rights Act of 1964. Although the guidance does not define DEI, it provides clarity on the EEOC’s focus moving forward.
Acting EEOC Chair Targets Law Firms
Acting Chair Andrea Lucas sent letters to 20 law firms warning that their employment policies intended to boost DEI may be illegal.
OFCCP Plans Retroactive DEI Enforcement
A leaked internal email obtained by The Wall Street Journal reveals that newly appointed OFCCP Director Catherine Eschbach has ordered a review of affirmative action plans submitted by federal contractors during the prior administration. These reviews will be used to help determine whether a federal contractor should be investigated for discriminatory DEI practices.
Maritime Chokepoints and Freedom of Navigation The US Federal Maritime Commission Investigation Into “Transit Constraints”
On March 14, 2025, the US Federal Maritime Commission (FMC) announced the initiation of a nonadjudicatory investigation into transit constraints at international maritime “chokepoints.”
The Federal Register notice initiating the investigation identified the following seven global maritime passageways that may be subject to such constraints: (1) the English Channel, (2) the Malacca Strait, (3) the Northern Sea Passage, (4) the Singapore Strait, (5) the Panama Canal, (6) the Strait of Gibraltar and (7) the Suez Canal. The FMC announcement is another sign of the continued merger of national security, trade issues and global shipping and transportation issues.
The FMC has a statutory mandate to monitor and evaluate conditions affecting shipping in US foreign trade. 46 U.S.C.42101(a) provides that the commission “shall prescribe regulations affecting shipping in foreign trade … to adjust or meet general or special conditions unfavorable to shipping in foreign trade,” when those conditions are the result of a foreign country’s laws or regulations or the “competitive methods, pricing practices, or other practices” used by the owners, operators or agents of “vessels of a foreign country.” The FMC is also required under 46 U.S.C. 46106 to report to Congress on potentially problematic practices of ocean common carriers owned or controlled by foreign governments, e.g., China. The FMC will conduct this investigation in accordance with its procedures for a nonadjudicatory investigation set forth in 46 CFR Part 502, Subpart R.
The FMC is conducting this investigation into any actions by a foreign country or other maritime interests that might constitute anticompetitive practices, irregular pricing or pricing that is deemed prejudicial to US foreign trade interests, and any other practices of government authorities, vessel owners, operators or agents affecting transit through such passageways. That is an incredibly broad mandate, and there is complete uncertainty as to what “remedies” or “proposed actions” the FMC might recommend so as to remediate any perceived constraints on transit.
However, given the potentially severe and disruptive impact of the proposed actions currently being considered by the Office of the US Trade Representative (USTR) in relation to the ongoing Section 301 investigation into “China’s Targeting of the Maritime, Logistics, and Shipbuilding Sectors for Dominance,” 1 this new FMC investigation bears careful monitoring and engagement by affected parties.
Some commentators have already concluded that this new FMC investigation is simply a new front in the trade war the US is waging on the Chinese maritime and shipbuilding industries. Seatrade Maritime News claims that the FMC investigation is “not about trade at all,” but rather a continuation of the “China witch hunt” that started with the USTR Section 301 investigation.2 Others see the inclusion of the Panama Canal in the FMC investigation as an extension of the Trump administration’s stated desire to “take back” the canal, although in truth, the recent controversy over the Panama Canal was in part related again to China, and concerns over the involvement of the Panama Ports Company, a subsidiary of Hong Kong-based Hutchison Port Holdings.3 The references in the FMC notice of initiation to “other maritime interests” and “other practices of government authorities,” including irregular pricing or “pricing that is deemed prejudicial to US foreign trade interests,” appear to be a veiled reference to the Panama Maritime Authority and allegations that US vessels were being treated differently. Most commentators now agree that the FMC investigation is another element or tool that the administration intends to use to reduce US reliance on foreign-owned cargo vessels, and indeed force cargo interests to use US vessels.4 In this context, the focus on the Suez Canal may actually be a US ploy to target and extract concessions out of Egypt;5 the English Channel may be more about targeting the UK and France.
The FMC summarizes its individual concerns about (1) the English Channel, (2) the Malacca Strait, (3) the Northern Sea Passage, (4) the Singapore Strait, (5) the Panama Canal (6) the Strait of Gibraltar, and (7) the Suez Canal in the Federal Register notice. In summary, the concerns range from congestion, limited passing opportunities, an elevated risk of collisions, navigational challenges, variable weather conditions, environmental risks, geopolitical tensions, security threats and, in some areas, piracy and smuggling.
With respect to the Northern Sea Passage, the FMC notes that this is emerging as a critical maritime chokepoint as the region’s waters become ice free for longer periods, with it offering a shortcut between Europe and Asia 6. Reference is made to Russia seeking control over the route and its strategic importance being amplified by increased military activity from Russia, China and NATO forces.
In the section on the Panama Canal, while noting that Panama’s ship registry is one of the world’s largest, the FMC notes that remedial measures it can take include “refusing entry to US ports by vessels registered in countries responsible for creating unfavorable conditions.” In addition to Panama, states that control other areas in which chokepoints are located operate some of the world’s other largest ship registries, such as Singapore, Malaysia and Indonesia. If this investigation leads to the US refusing entry to, or imposing penalties on, vessels flagged in these states, or on vessels owned by interests from these states, it could have very farreaching implications.
As is foreseen in the impact of the Section 301 proposed actions, these measures could have the potential to significantly raise the costs of calling at US ports (either by way of reduced availability of tonnage or the imposition of direct penalties) with these costs being passed down the charterparty chain and then ultimately to customers and consumers.
The FMC notes that other significant constraints affecting US shipping may arise quickly in the global maritime environment. For example, when the Singapore-flagged containership Dali struck a bridge in Baltimore, Maryland in March 2024, six people were killed and maritime access to the Port of Baltimore was blocked, a situation that persisted for many weeks and led to losses that have been estimated to reach as high as US$4 billion.
Interested parties are permitted to submit written comments by May 13, 2025, with experiences, arguments and/or data relevant to the above-described maritime chokepoints, particularly concerning the effects of laws, regulations, practices or other actions by foreign governments, and/or the practices of owners or operators of foreign-flag vessels, on shipping conditions in these chokepoints.
The FMC states that it welcomes comments not only from government authorities and container shipping interests, but also from tramp operators, bulk cargo interests, vessel owners, individuals and groups with relevant information on environmental and resource-conservation considerations, and anyone else with relevant information or perspectives on these matters.
In particular, the FMC has expressed an interest in information and perspectives on the following six questions:
What are the causes, nature and effects, including financial and environmental effects, of constraints on one or more of the maritime chokepoints described above?
To what extent are constraints caused by or attributable to the laws, regulations, practices, actions or inactions of one or more foreign governments?
To what extent are constraints caused by or attributable to the practices, actions or inactions of owners or operators of foreign-flag vessels?
What will likely be the causes, nature and effects, including financial and environmental effects, of any continued transit constraints during the rest of 2025?
What are the best steps the FMC might take, over the short term and the long term, to alleviate transit constraints and their effects?
What are the obstacles to implementing measures that would alleviate the above transit constraints and their effects, and how can these be addressed?
It will be interesting, and indeed imperative, for global shipping interests to monitor the comments received and how the proposed measures are developed accordingly.
A recent Bloomberg News article went so far as to indicate that the “Billion-Dollar US Levies on Chinese Ships Risk a ‘Trade Apocalypse’.”
Interestingly, there are some notable exclusions from the list of the seven “chokepoints,” including some that are significantly more problematic and/or more important to global trade flows, including the Black Sea and the Bosphorus, the Strait of Hormuz, and the Bab Al Mandeb Strait.
The Carnegie Endowment for International Peace published a February 19, 2025 article examining the US motivations behind the Panama Canal gambit.
TradeWinds posits in one article that the FMC may try to ban or detain ships from the “maritime chokepoint” countries, or restrict or ban service to the US by shipping lines or vessel operators that are said to contribute to issues relating to transit through these passageways.
For example, this may be about the US getting preferential deals for US vessels; e.g., US-flagged vessels being given free Suez transits by the Egyptian government, under threat of measures against Egypt being imposed if not.
Although consultant Darron Wadey at Dynaliners in the Netherlands has expressed a view, quoted in Seatrade Maritime News, that this route is “an outlier” in the list and has “zero relevance” to US foreign trade.
Texas Court Vacates FDA’s Laboratory Developed Test (LDT) Final Rule
A Texas judge for the U.S. District Court for the Eastern District of Texas issued a ruling on March 31, 2025, to vacate and set aside, in its entirety, the U.S. Food and Drug Administration’s (FDA) Final Rule titled Medical Devices; Laboratory Developed Tests (LDTs) (LDT Final Rule). The Court remanded the matter to the Secretary of the U.S. Department of Health and Human Services (HHS) “for further consideration.” The LDT Final Rule would have required companies to obtain FDA clearance in order to continue marketing their LDTs.
The ruling prevents the LDT Final Rule – a rule heavily criticized by many clinical laboratory industry stakeholders – from going into effect. Prior to the LDT Final Rule, FDA exercised enforcement discretion with respect to the regulation of LDTs. The LDT Final Rule would have essentially ended FDA’s general enforcement discretion approach, thereby significantly increasing the regulatory requirements imposed on manufacturers of LDTs.
LDT Background
Historically, FDA has taken a broad enforcement discretion approach to regulating LDTs. LDTs are a subset of in vitro diagnostic products (IVDs) that are designed, manufactured, and used within a single laboratory. Although FDA has long asserted its authority to regulate LDTs as devices, it previously deemed LDTs low risk and, therefore, opted to take a broad enforcement discretion approach with respect to its regulation of LDTs. Under this approach, FDA has not enforced certain device requirements, such as premarket review, reporting, registration and listing, and quality system regulation, against LDT manufacturers.
LDTs, however, have become significantly more complex in the past few decades. Currently, many laboratories manufacturing LDTs employ high-tech instruments (such as algorithms and automation), run LDTs in high volumes, and widely market and accept specimens from across the United States. To address the changing LDT landscape, both FDA and Congress have pursued changes to FDA’s enforcement discretion policy. FDA has previously attempted to modify its enforcement discretion approach through guidance, which was never finalized, and members of Congress have introduced, but failed to pass, new legislation, most recently, the Verifying Accurate, Leading-edge IVCT Development Act (VALID Act).
LDT Final Rule
On May 6, 2024, FDA issued the LDT Final Rule amending FDA’s regulations to make explicit that IVDs are medical devices under the Federal Food, Drug, and Cosmetic Act (FD&C Act), including when the IVD manufacturer is a laboratory, thus capturing LDTs within FDA’s regulatory purview. Along with this amendment, FDA finalized a policy under which FDA was set to begin a phased implementation of IVD requirements over the course of four years. These phases were set to begin in May 2025.
FDA received over 6,500 comments on the proposed LDT rule, many of which challenged FDA’s authority to regulate LDTs. FDA has continuously asserted that it has authority to regulate LDTs, but that it has chosen to adopt a policy of enforcement discretion. Many clinical laboratory industry stakeholders disagree with this assertion, believing that LDTs fall outside FDA’s scope of authority.
U.S. District Court for the Eastern District of Texas Lawsuit
Within weeks of FDA issuing the LDT Final Rule, the American Clinical Laboratory Association (ACLA) and its member company Health TrackRx filed a lawsuit against FDA claiming that the rule exceeds the agency’s legal authority to regulate LDTs. Then in August 2024, the Association for Molecular Pathology (AMP) filed its own lawsuit describing the rule as “a historically unprecedented power grab.” The two cases were consolidated. Both lawsuits claim the LDT Final Rule must be vacated under the Administrative Procedure Act (APA) because it is “in excess of [FDA’s] statutory jurisdiction, authority, or limitations” and is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. See 5 U.S.C. § 706(2).
The Court, on March 31, 2025, entered a judgment in favor of the plaintiffs. In its Opinion and Order, the Court states that, “the text, structure, and history of the [FD&C Act] and [the Clinical Laboratory Improvement Act (CLIA)] make clear that FDA lacks the authority to regulate laboratory-developed test services”. Throughout its opinion, the Court outlines its disagreement with FDA’s expansion and interpretation of the definition of “device” and the agency’s overall interpretation of its authority to regulate LDTs under the FD&C Act.
Specifically, the Court states LDTs are services regulated under CLIA, for which the Centers for Medicare & Medicaid Services (CMS) is primarily responsible for issuing implementing regulations. The Court notes that Congress created a separate statutory and regulatory framework for laboratory test services under CLIA. In its opinion, the Court defines an LDT as “a methodology or process by which a laboratory generates biochemical, genetic, molecular, or other forms of clinical information about a patient specimen for use by the treating physician” and that “[e]ach laboratory uses its own unique knowledge of the protocols, performance characteristics, and means of analysis to develop such methodologies and processes”.
The Court further claims: “Unlike a drug or device, which is a manufactured and packaged article of commerce with user instructions, a laboratory-developed test service is a proprietary methodology performed by only the developing laboratory. That service generates information from test results and transmits that information to the ordering physician. The testing service is not sold as a kit, and the protocol is not transferred in any manner to other laboratories, hospitals, or other facilities outside the developing laboratory entity. No physical product is sold, and no article of personal property is transferred such that title passes from one party to another.”
By employing this particular definition of LDTs, the Court claims that LDTs are services that laboratory professionals perform rather than a physical product sold by a laboratory that could be subject to FDA jurisdiction as a device. As a result, the Court vacated and set aside the LDT Final Rule in its entirety, holding that the LDT Final Rule exceeds FDA’s statutory authority and violates the APA.
Implications
Due to the Court’s order, the LDT Final Rule will not go into effect as planned in May 2025. Unless appealed by the government, this ruling essentially halts FDA’s ability to promulgate further regulations or guidance regulating LDTs. To officially settle the debate of how LDTs should be regulated and to clarify the authority between FDA and CMS, members of Congress would need to act and reinvigorate the VALID Act or similar legislation.
We anticipate there will be further developments on the regulatory position of LDTs. Manufacturers of LDTs should be sure they have data to demonstrate their LDTs have the necessary specificity and sensitivity to ensure the data generated through such tests can be relied upon and have clinical value for physicians, and are consistent with any applicable CLIA requirements.
March 2025 PFAS Legislative Developments
Federal Legislature
One new bill was introduced.
State Legislature
Sixty six bills were introduced across fifteen states.
Topics include: Exemptions from PFAS bans; PFAS testing requirements; Establishing liability for PFAS contamination; Regulating PFAS contamination in water sources.
State Regulations
NH Env-Dw 1500 was published as a Final Rule. This is a rebate program for well water contaminated by PFAS. The purpose is to establish criteria and procedures for administering the PFAS removal rebate program for private wells.
New Bills This Period
PFAS Legislation
Federal
One new bill introduced.
State
Sixty six bills introduced.
One in CT
One in DE
One in FL
Eight in HI
One in IA
Five in ME
Nine in MA
Eighteen in MN
One in NM
Two in NY
Eight in NC
Two in PA
Four in RI
One in TX
Four in WI
Banking Agencies Begin Publishing Updated Crypto Guidance
On March 28, the Federal Deposit Insurance Corporation (FDIC) rescinded Biden administration guidance1 related to state-chartered banks’ participation in “crypto-related activities” and published a new interpretation of the scope of permissible crypto activity for the insured depository institutions for which it is the primary regulator (the Crypto Letter).2 As discussed below, while similar to guidance issued by the Office of the Comptroller of the Currency (OCC) on March 7 with respect to national banks and federal savings banks,3 the Crypto Letter reflects a seismic shift in the scope of enumerated crypto-related activities permitted to state-chartered banks across the United States, assuming that such activities are performed in a manner that is otherwise consistent with bank regulation.
The Crypto Letter
Notably, the Crypto Letter defines “crypto-related activities” to include “acting as crypto-asset custodians; maintaining stablecoin reserves; issuing crypto and other digital assets; acting as market makers or exchange or redemption agents; participating in blockchain- and distributed ledger-based settlement or payment systems, including performing node functions; as well as related activities such as finder activities and lending.” Some of these powers are consistent with what the banking industry believed likely to be newly permitted by the Trump administration, such as acting as a cryptoasset custodian.
Custodial powers have long been permitted to insured depository institutions that satisfy certain statutory and procedural requirements. Other powers enumerated in the definition, however, such as issuing crypto and other digital assets, represent a breadth of authority that had not been widely anticipated in the banking industry given that such activities provide the potential for FDIC-supervised institutions to publicly offer payment mechanisms that could, potentially, compete with the US dollar. For example, if Bank of X issues a hypothetical “X coin” that can be used at merchants much like a credit or debit card (whether in an open-loop or closed-loop environment), such coin will function as a medium of exchange that could either be fully backed by US dollars (i.e., a payment stablecoin), or potentially backed by other assets, introducing a new form of privately issued currency into the payment ecosystem.
It is worth noting that Congress is currently considering several bills on payment stablecoins. These bills would create regulatory pathways for banks to issue payment stablecoins under appropriate regulatory oversight.
However, the Crypto Letter further provides that traditional concepts underpinning bank supervision continue to apply to a bank that pursues participation in a crypto-related activity: namely, such activities must be performed in a manner that is consistent with safety and soundness principles as well as applicable laws and regulations. While the Crypto Letter is clear that prior approval from the FDIC is not required to engage in a crypto-related activity, before undertaking such activities, the insured depository institution must consider the existing risk rubric that governs all bank activities, including, but not limited to, “market and liquidity risk; operational and cybersecurity risks; consumer protection requirements; and anti-money laundering requirements.”
Finally, the Crypto Letter notes that new interagency guidance related to crypto activities by insured depository institutions will be forthcoming from the federal banking regulators with respect to prior guidance issued by the Biden administration. This is consistent with action taken by the OCC in its publication of the OCC Crypto Letter that rescinded prior OCC guidance with respect to crypto activity and affirmed that national banks and federal savings banks may engage in cryptoasset custody, distributed ledger and stablecoin activities.
What This Means
While the Crypto Letter reflects a policy to permit broad participation in the crypto market by FDIC-supervised banks, there is no expectation that such banks will immediately enter the market with crypto-related products and services. Rather, policies, procedures and testing methodologies must be created to reflect safe and sound banking principles. Clearly, certain activities that “mirror” products currently offered by insured depository institutions, such as the custodying of crypto assets, will be the first activities retail and commercial customers are likely to see, given that the pivot to offering this type of additional fiduciary activity will not present significant operational and procedural hurdles assuming an institution currently offers such services. Lending against the value of a customer’s crypto likely falls within the same analytical framework: banks have long loaned against the value of assets, including assets whose values fluctuate in the market.
Other enumerated activities, however, will require a longer “lead time” before they are brought to the market. In particular, building a blockchain-based payment system will require significant investment and effort given the multiple layers between consumer/customer, merchant, and payment system. For example, in order for a consumer to use crypto held at Bank X to buy coffee in the morning from the merchant in the office lobby, Bank X must build the technical infrastructure to connect its banking systems with blockchain networks. This infrastructure will need to allow the consumer to initiate payments, enable the bank to verify balances and process transfers and ensure that such crypto can be moved from the customer’s account held at Bank X to the merchant’s account held at Bank Y.
1 The Biden administration guidance requiring prior FDIC notification before engaging in crypto-related activities was set forth at FDIC FIL-16-2022.
2 FDIC Clarifies Process for Banks to Engage in Crypto-Related Activities, March 28, 2025, available at https://www.fdic.gov/news/financial-institution-letters/2025/fdic-clarifies-process-banks-engage-crypto-related?source=govdelivery&utm_medium=email&utm_source=govdelivery
3 OCC Letter Addressing Certain Crypto-Asset Activities, March 7, 2025, available at https://www.occ.treas.gov/topics/charters-and-licensing/interpretations-and-actions/2025/int1183.pdf (the “OCC Crypto Letter”).
Illinois Supreme Court Approves Three Significant Proposals For Practicing Law In Illinois
Today, the Illinois Supreme Court announced the approval of “3 Proposals Impacting the Practice of Law in Illinois.” These are positive developments for Illinois lawyers and those needing legal assistance in Illinois, helping to bridge some gaps between the law and technology, and furthering the goal of addressing unmet legal needs in Illinois.
The approved proposals include: 1) Regulation of Intermediary Connecting Services (ICS), 2) New Supreme Court Rule 300, and 3) MCLE for Pro Bono Pilot Project.
As to the first proposal, according to the Court, ICS entities are “organizations which connect lawyers to clients, typically through the internet” and “have the potential to help address unmet legal needs by making it easier for consumers to find a lawyer.” However, as the existing Illinois rules did not clearly contemplate such arrangements, there was some uncertainty as to whether attorneys should participate. This proposal will amend Rules of Professional Conduct 1.6 and 7.2 to define ICS and permit attorney participation, assuming certain conditions, including the exercise of due diligence, are met.
The second proposal addresses the New Supreme Court Rule 300 Governing Attorney’s Fee Petitions and encourages alternative fee agreements beyond the standard billable hour, by clearly establishing that such alternative fee agreements may be the basis for recovery of attorneys’ fees. The change is intended to increase access to affordable legal services, providing consistency in the consideration of attorneys’ fee petitions.
Finally, the third proposal, the MCLE Pro Bono Pilot Project, adds a temporary category of Nontraditional Courses or Activities eligible for Continuing Legal Education credits pursuant to Illinois Supreme Court Rule 795(d)(14), for participation in Illinois Free Legal Answers, which is a “virtual, internet-based legal advice clinic administered by the Public Interest Law Initiative (PILI).” Attorneys participating in this program may earn one hour of MCLE credit for every two hours of pro bono work for Illinois Free Legal Answers, qualifying for up to five credits per two-year reporting period. This will be a two-year pilot program, and it will be monitored by PILI and the Supreme Court’s Executive Committee to see whether CLE credit will increase attorneys’ voluntary participation in such pro bono services, with a goal of broadening initiatives to help those in need.
You may read more about these proposals, which will take effect on July 1, 2025, in the Supreme Court’s press release.
Uncertainty Means AI Training Can Continue
Over 30 lawsuits challenging the training of Generative AI on copyrighted materials are pending, most in federal courts across the country. The copyrighted materials range from news stories to photographs to music. The law is unsettled whether such training violates copyright law.
However, the uncertainty means that training can continue to until we get final guidance from the courts (or the legislature), both of which take time. For example, Thomson Reuters, which provides Westlaw, sued a competitor for copyright infringement in May of 2020. Last month, the Court partially granted summary judgment finding that the headnotes and numbering were copied. The case is still pending trial.
Of course, it will be impossible to “untrain” the GenAI engines, which are and will be in use. This may leave the courts to grapple with the difficult question of what remedy is appropriate, if and when it is determined that such training does not constitute “fair use” or fall within an exception for data mining.
In decision issued Tuesday, Judge Eumi K. Lee ruled that it remained an “open question” whether using copyrighted materials to train AI is illegal – meaning UMG and other music companies could not show that they faced the kind of “irreparable harm” necessary to win such a drastic remedy.
www.billboard.com/…
New Life for Nuclear Power: License Extensions and Recommissioning
Key Takeaways:
Secure Financial and Regulatory Support Early
Recommissioning projects (like Palisades and TMI Unit 1) demonstrate the importance of securing strong financial backing (government loans, state support) and long-term PPAs
Early engagement with USNRC is crucial given the complex regulatory process
Leverage Experienced Contractors and Learn from Precedents
Engage experienced regulatory counsel and third-party contractors to identify potential risks early
Study recommissioning cases (like Palisades and TMI Unit 1) as they establish regulatory precedents
Introduction
At its peak, the commercial nuclear power industry in the United States included 112 operating nuclear reactors. Many of those reactors entered operation in the 1970s and 1980s and were typically licensed to operate for 40 years. When some of these reactors reached the end of their operating life, they were decommissioned. Others were taken out of service for various reasons but not fully dismantled. Yet others received extensions of their operating licenses and continue to provide clean, reliable, baseload electricity. The Trump Administration’s recent Executive Order, “Unleashing American Energy,” counts nuclear energy among the resources for which regulatory burdens must be reviewed, and suggests uranium should be included in the US’ list of critical minerals. With the renewed interest in nuclear power, former and existing nuclear power plants will be critical among the opportunities to meet the growing demand for electricity to power a variety of energy intensive industries.
This article explores the challenges and opportunities associated with nuclear power plants at or near the end of their planned operating life.
…there is a growing interest in nuclear power as a non-greenhouse gas emitting source of baseload electricity.
Old Plants, New Licenses : Nuclear Power’s Extended Stay
The average age of currently operating commercial nuclear reactors in the US is more than 40 years.1 Under current regulations,2 the US Nuclear Regulatory Commission (USNRC) may grant a 20-year extension of the plant’s original operating license, and potentially a subsequent 20-year license extension for a total of 80 operating years. Given the economic and regulatory pressures that have driven the retirement of coal-fired baseload generating power plants in recent years, there is a growing interest in nuclear power as a non-greenhouse gas emitting source of baseload electricity. This interest is driving some utilities to consider whether it is appropriate to pursue operating license extensions for nuclear power plants that would otherwise be considered for decommissioning.
A recent example of the confluence of these factors is Pacific Gas & Electric’s two-reactor Diablo Canyon Power Plant – California’s largest power plant. In 2023, driven by concerns related to statewide electricity reliability and climate change, California Senate Bill No. 846 became law and directed PG&E to pursue an extension of Diablo Canyon’s operating license to 2030. Following the conclusion of litigation that sought to prevent the license extension, PG&E’s application is currently under review by USNRC while both reactors continue to operate. Since 2000, USNRC has issued operating license extensions for more than 90 nuclear reactors. 3
The Long Goodbye: Navigating Nuclear Plant Decommissioning
Despite opportunities for life extension, some nuclear plant owners choose decommissioning for financial or operational reasons. In such cases, plant owners must first notify the USNRC of their planned shutdown, then work with the USNRC to coordinate all post-shutdown decommissioning activities including developing and implementing a License Termination Plan. Once these steps are complete, the owner must finish the full decommissioning process within 60 years of terminating plant operations. The final goal is to have the reactor site approved by the USNRC for future use which may be subject to specific restrictions. 4 Navigating this highly regulated process can be challenging in the best of circumstances and, in some instances, may be the subject of litigation, including with respect to disposal of spent reactor fuel. There are currently 20 US commercial nuclear reactors in various stages of the regulated decommissioning process. 5
These risks tend to become more apparent as the DECON phase progresses and the true scope of the necessary decontamination becomes apparent.
Full scale decommissioning and dismantling to obtain release of the USNRC license is a multi-year and costly process fraught with risks. This process includes: 6
Removing the spent nuclear fuel from the reactor.
Storing the spent nuclear fuel, typically in dry storage containers, either on-site or at licensed off-site locations.
Dismantling radioactive systems and equipment; and
Cleaning up contaminated material (e.g., contaminated soil, groundwater, etc.) and packaging and transporting it to a disposal facility.
Nuclear plants can be decommissioned and dismantled in either one or two phases. The first is safe storage (SAFSTOR), where the facility is placed in protective storage for an extended period. During this time, radioactivity naturally decreases in key components like the reactor vessel, fuel pools, and turbines. Spent fuel is removed from the reactor vessel and placed in secure storage, and the plant remains under USNRC oversight throughout this period.
The second phase is decontamination (DECON) during which contaminated equipment and materials are removed from the site. Plant owners with sufficient decommissioning funds may choose to skip SAFSTOR and proceed directly to DECON. However, those needing to accumulate additional funds may opt for SAFSTOR, in part to allow their decommissioning fund to grow over time. As part of DECON, the nuclear plant owner decontaminates and removes contaminated equipment and material. The DECON process can take up to five years, if not longer. 7
Given the number of US commercial nuclear reactors that have been decommissioned or are in the process of decommissioning, a number of third-party contractors have gained vital experience that can help nuclear plant owners better understand the risks inherent in decommissioning. These risks tend to become more apparent as the DECON phase progresses and the true scope of the necessary decontamination becomes apparent. For example, while it is expected that components in close contact with radioactive material will need to be decontaminated, other debris from the dismantling effort may be more contaminated than initially expected, requiring special techniques for removal and disposal. The scope, duration, and expense of decommissioning will further expand, sometimes significantly, if surrounding soil and ground water is also contaminated and requires treatment and removal. These risks cannot be eliminated entirely, but an experienced contractor and knowledgeable regulatory counsel can help the nuclear plant owner identify the potential issues early and develop the most cost-effective and regulatorily efficient solution.
…USNRC has taken a number of regulatory actions to oversee what it describes as a “first of a kind effort to restart a shuttered plant.”
Recommissioning: Back from the Brink
As noted above, some nuclear power plants have been decommissioned but not fully dismantled. For many of the same reasons some plant owners are seeking operating license extensions for existing reactors, other plant owners are seeking to restart reactors that have begun the decommissioning process.
The Palisades Nuclear Plant (PNP) ceased operations in 2022, and Entergy transferred the plant’s operating license to Holtec Decommissioning International for purposes of decommissioning the facility. In 2023, however, citing the need for safe, reliable, carbon-free electricity, Holtec announced plans to seek USNRC approval to restart PNP. Holtec’s plans have received financial assistance from the State of Michigan, a $1.52 billion loan from the US Department of Energy, and the company has entered into a long-term power purchase agreement (PPA). In response to Holtec’s plans, USNRC has taken a number of regulatory actions to oversee what it describes as a “first of a kind effort to restart a shuttered plant.”8 In addition to restarting the plant’s 800 MW reactor by late-2025, Holtec has also announced its intent to explore siting small modular reactors (SMRs) at the facility to make the plant a major clean energy hub for the region.
Similarly, in 2023, Constellation Energy announced its plans to restart operations at Three Mile Island (TMI) Unit 1, the companion to TMI Unit 2 which experienced a partial core meltdown in 1979. TMI Unit 1 ceased operations in 2019 and, like PNP, its license status was changed to SAFSTOR (Safe Storage) to facilitate later decommissioning efforts. Constellation estimates the cost to bring TMI-1 back to operating status at $1.6 billion. The project is supported by a 20-year PPA with Microsoft to purchase all power from the plant to supply its regional data center operations with carbon-free electricity. Assuming all regulatory approvals are obtained, TMI Unit 1, which is to be renamed the Crane Clean Energy Center, is projected to resume operations in 2028.
The future of America’s nuclear power plants stands at a critical crossroads.
In July 2024, NextEra announced that it was considering a possible restart of the 45-year-old Duane Arnold nuclear plant in Palo, Iowa which ceased operations in August 2020. In a clear response to growing electricity demand, on January 23, 2025, NextEra filed with the USNRC a proposed regulatory path for the potential reauthorization of operations at the Duane Arnold power plant.
While there are likely a limited number of nuclear plants that could be considered for recommissioning, recent statements by the Trump Administration suggesting that nuclear energy will be viewed as a priority resource to meet future energy demand may bode well for the regulatory path forward for nuclear plant restarts.
Conclusion
The future of America’s nuclear power plants stands at a critical crossroads. The growing demand for reliable, baseload power, coupled with concerns about climate change and energy security, has sparked renewed interest in preserving and expanding nuclear capacity. As a result, while some nuclear plants may face decommissioning, others are finding new life through license extensions and recommissioning efforts.
Early indications are the Trump Administration intends to “unleash commercial nuclear power in the United States” through the development and deployment of next-generation nuclear technology.9 It is possible that the Administration’s support for nuclear power will extend to optimizing the use of the nation’s existing and former nuclear plants. Similarly, the Administration’s concurrent interest in streamlining regulatory processes may provide more regulatory certainty for existing and former nuclear plants being considered for operating license extensions or for recommissioning.
The story of America’s nuclear plants is thus not simply one of sunset versus second life, but rather one of evolution and adaptation to meet the changing energy needs of the 21st century.
1https://www.eia.gov/tools/faqs/faq.php?id=228&t=3 210 CFR § 543https://www.nrc.gov/reactors/operating/licensing/renewal/applications.html#completed 410 CFR § 20 and §§ 50.75, 50.82, 51.53, and 51.955https://www.nrc.gov/info-finder/decommissioning/power-reactor/index.html 6https://www.nei.org/advocacy/make-regulations-smarter/decommissioning 7https:// www.nei.org/resources/fact-sheets/decommissioning-nuclear-power-plants8https://www.nrc.gov/info-finder/reactors/pali.html 9Secretary Wright Acts to “Unleash Golden Era of American Energy Dominance” | Department of Energy