Antitrust & Trade Regulation – Page 5

Businesses Beware: Latin America Transactions Likely to be Significantly Riskier Under the Trump Administration

Shortly after President Trump’s second inauguration, his executive branch took steps to further one of his signature promises: securing the southern border. While these actions primarily impact immigration laws, several executive orders, such as designating drug cartels and their affiliates as “terrorist organizations,” have increased the legal and compliance risk environment for both US and foreign companies.
While regulations pertaining to known terrorist organizations like ISIS and Al-Qaeda have been part of the global sanctions and anti-money laundering framework for quite some time, the addition of Mexican, Central and South American drug cartels to this list introduces new and complex risks for companies conducting cross-border business in these jurisdictions. To prevent violating these new requirements, companies should evaluate their Latin American operations and work to establish strong controls and compliance measures to ensure that they do not do business with or unwittingly provide material support to these organizations.
Below we provide an overview of the new directives and explain how businesses should prepare for the new regulations.
Executive Actions Look South
On his first day in office, President Trump issued a series of executive orders focused on this issue, including E.O. 14157, “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists”; E.O. 14161, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats” and E.O. 14159, “Protecting the American People Against Invasion” (together, the January 20 E.O.s). And on February 5, her first day in charge of the Justice Department, Attorney General Pam Bondi issued several memoranda providing guidance on how the Department will shift its priorities and make additional resources available to reflect the administration’s focus on the southern border: the Bondi Memorandum regarding Charging, Plea Negotiations, and Sentencing and the Bondi Memorandum regarding Total Elimination of Cartels and Transnational Criminal Organizations (together, the Bondi Memoranda).
The Bondi Memoranda prioritize enforcement actions directed at, in part, the “total elimination of Cartels and Transnational Criminal Organizations (TCOs)” and the historic threats from widespread illegal immigration, dangerous cartels, transnational organized crime, gangs, human trafficking and smuggling, fentanyl and opioids, terrorism and other sources. To eradicate these threats, DOJ will enhance its focus on investigations related to immigration enforcement, human trafficking and smuggling, transnational organized crime and cartels and gangs.
Specific to white collar enforcement, the Department will now be prioritizing investigations into companies that provide material support or resources to designated foreign terrorist organizations (FTOs) or bribe foreign government officials to facilitate the criminal operations of cartels and TCOs under the Foreign Corrupt Practices Act (FCPA).
As the administration adds to the list of cartel-related entities that fall under these new designations, risk for companies doing business abroad will increase. For example, E.O. 14157 ordered the Secretary of the State to recommend additional cartels and organizations for designation as FTOs or Specially Designated Global Terrorists (SDGTs) with a focus, but not limitation, on cartels operating in certain portions of Mexico. While we await these designations, which the Secretary of State was supposed to have recommended on February 3, Congressman Chip Roy (TX-21) reintroduced the Drug Cartel Terrorist Designation Act, which would direct the designation of the Gulf Cartel, the Cartel Del Noreste, the Cartel de Sinaloa, and the Cartel Jalisco Nueva Generacion as FTOs and codify E.O. 14157 into law.
Increased Risk for Companies Operating in Mexico, Central and South America
While it is likely that at least some of the soon-to-be-designated entities already have sanctioned individuals under the US Department of Treasury’s Office of Foreign Asset Control’s regulations, we anticipate that the list will grow significantly. Making the matter more complicated, however, is that cartels, their affiliated entities and the persons that control these organizations have embedded themselves across many business areas in Latin America. So, the designation as an FTO is significant for several reasons:

Specific criminal law: It is a criminal offense under 18 U.S.C. § 2339B for companies and individuals to knowingly provide material support to FTOs, a sanction that does not currently exist under an SDN designation. The government broadly defines “material support” to include providing an FTO with any property (tangible or intangible) or services, including currency, financial services, lodging, personnel, and transportation. Thus, any transaction with an FTO could be viewed as providing “material support” to a terrorist organization that could result in significant fines and penalties for the organization. This includes “fees” that cartels routinely charge companies to operate in certain areas.
In one notable example of a prosecution under § 2339B, French building materials manufacturer Lafarge pled guilty in 2022 to a one-count criminal information charging conspiracy to provide material support and resources in Northern Syria from 2013 to 2014 to the Islamic State of Iraq and al-Sham (ISIS) and the al-Nusrah Front (ANF), both US-designated FTOs. According to court documents, Lafarge and its Syrian subsidiary schemed to pay ISIS and ANF in exchange for permission to operate a cement plant in Syria, which enabled the subsidiary to obtain approximately $70.3 million in revenue.

Extraterritorial reach: Restrictions on dealing with FTOs expands the reach of US regulators to non-US entities. While SDNs restrictions have certain reach to allow the United States to sanction extra-territorial actors, they are largely aimed at US entities and transactions involving US entities — 18 U.S.C. § 2339B has no such limitation. In other words, just as with Lafarge, a non-US company doing business with an FTO in Latin America can be prosecuted through the extraterritorial reach of 18 U.S.C. § 2339B. Indeed, there is precedent for such charges: Chiquita Banana pled guilty in 2007 to making payments to an FTO (the AUC in Colombia) and agreed to pay a fine of $25 million. E.O. 14157 increases the risk of similar prosecutions in the future.

Civil liability: Under the civil liability provisions of the Anti-Terrorism Act, 18 U.S.C. § 2333, a company can be directly liable for engaging in an act of international terrorism by providing material support to an FTO, or indirectly under the aiding and abetting provision for knowingly providing substantial assistance to the perpetrators of an attack committed, planned, or authorized by an FTO. The Act allows plaintiffs to recover treble damages, plus the cost of the suit, including attorney’s fees, which can add up exponentially.

Civil forfeiture: While current sanctions regimes allow US authorities to freeze assets of sanctioned entities, authorities may not take title to those assets without proving in court that the assets are related to a criminal offense. An FTO designation and related statutes will likely make it easier for the government to carry this burden, and even lighten it by arguably reducing the need to show a nexus to the United States.

How Companies Should Prepare
The combination of these new areas of risk and DOJ’s new focus on FTOs, TCOs, and SDGTs has important implications for companies conducting business internationally, particularly in Mexico and other parts of Latin America where cartels that are (or will be) designated as FTOs and TCOs are active. But that is not to say the companies cannot do business in the region. Rather, the risk can be mitigated and managed through robust policies, internal controls and compliance procedures. For example, companies should:

Conduct third-party due diligence: In a heightened regulatory framework, a company needs to know the counterparties it does business with to determine whether they are a sanctioned or designated party. In addition, doing business with third parties like vendors, agents or “finders,” consultants, and distributors or sales representatives can increase your compliance associated risks. Conducting enhanced due diligence is the best way to detect potential problem areas and prevent liability. Effective due diligence should be tailored to the company’s business and risks associated with that business and may include:

Media/internet searches.
OFAC sanctions list searches.
Commerce Department entity list searches.
Beneficial ownership reviews.
Politically exposed person reviews.
Company/business registries searches.
Site visits.
Litigation records reviews.
Corporate and leadership references.

Be aware of red flags: A company should know what to look for while conducting due diligence. Red flags may include:

Failure of potential partners to maintain appropriate government registrations.
Negative media and/or reference reports, particular those that suggest non-compliant or unlawful conduct.
Requests for excessive fees or commissions, cash payment, or excessive discretionary funds.
The third-party refuses to provide reasonable information to assess ownership information, or says “don’t worry about it,” or “you don’t want to know.”
Agreements that include vaguely or improperly described services.

Use internal controls: Robust compliance programs utilize a system of internal controls that help provide “reasonable assurances” that transactions are properly authorized and do not violate anti-money laundering rules or sanctions regulations. Implementing effective internal accounting and compliance controls not only ensures the reliability of financial reporting but it reduces the susceptibility that a company unwittingly provides material support to a designated terrorist organization or any of its affiliates. Along with internal accounting controls, it is important to establish a culture of integrity and ethics and put mechanisms in place to monitor compliance and report non-compliance.

Update your compliance program: The hallmarks of a good compliance program include, among other things:

A high-level commitment to corporate compliance policy by directors and senior management.
Clearly articulated and visible written policies.
Documentation of the purpose of all payments.
Periodic risk-based assessments that addresses the individual circumstances of the company.
Proper oversight and independence with appropriate funding resources.
Training and guidance that is effectively communicated to all directors, officers and employees.
Internal reporting system for confidential, internal reporting of compliance violations.
Effective process for responding to, investigating and documenting allegations of violations.
Enforcement that incentivizes compliance and disciplines violations.
Effective training and oversight of third-party relationships.
Monitoring and testing of the effectiveness of the compliance program.

President Trump Resets US Tariffs on Imports of Steel and Aluminum from All Countries

On 10 February 2025, President Trump announced that he was increasing tariffs on US imports of aluminum from 10% to 25% and ending various exemptions and exclusions to the US tariffs of 25% on imports of steel. The tariffs were first imposed in President Trump’s first term under the authority of Section 232 of the Trade Expansion Act of 1962, which permits the President to impose import restrictions (tariffs and/or quotas) based on an investigation and affirmative determination by the US Commerce Department that certain imports threaten to impair US national security. Section 232 tariffs on aluminum and steel were originally imposed by President Trump in 2018 and continued under President Biden.
This latest tariff action revokes agreements with Argentina, Australia, Brazil, Canada, the European Union, Japan, Mexico, South Korea, Ukraine, and the UK that had suspended tariffs on certain aluminum and steel products imported from those countries. It also terminates the company and product-specific exclusions that had been granted by the US Commerce Department since 2018. Accordingly, unless further changes are implemented, effective 12 March 12 2025 at 12:01 am Eastern Time all steel and aluminum products identified in the President’s proclamations will be subject to 25% tariffs. Further, such tariffs will be extended to certain “derivative” steel and aluminum products (i.e., products made by further manufacturing basic steel and aluminum shapes) not previously covered by Section 232 tariffs.
President Trump’s decision to reset and increase tariffs is based on finding that the original Section 232 tariffs were not being effective in addressing findings that the global steel industry suffered from massive overcapacity. According to the original investigation and the latest findings, this global overcapacity is primarily due to China’s policies to promote its aluminum and steel industries and the spillover effects this build-out was continuing to have on third country markets, which, in turn, were channeling their own excess aluminum and steel to the US market.
Notably, in his press conference announcing the tariffs, President Trump indicated that countries may have room to negotiate potential settlements or modifications of the tariffs – especially if they are able to achieve relatively balanced trade with the United States or otherwise demonstrate economic benefits to the United States from trade and investment. When asked about the return of tariffs to imports of steel and aluminum from Australia, the President noted that the US has enjoyed a moderate trade surplus with Australia primarily due to that country’s purchases of aircraft from the United States and that he was in discussions with Australia’s prime minister about the tariffs and other issues.
The President also signaled that the tariffs may be extended to additional downstream products made from aluminum or steel. Specifically, the President’s action calls on the US Commerce Department to establish a process for interested parties to request that additional derivative aluminum or steel products be subject to Section 232 tariffs. This process must be in place by 12 May 2025.
The impending reset of aluminum and steel tariffs underscores the importance for companies and investors in sectors that produce or utilize these products to assess the impact on their own supply chains, pricing, business plans, and contractual and customer relationships. Companies and investors should also consider options under US law and contractual agreements to mitigate the potential impacts of the tariffs.

A Changing Enforcement Landscape Under the New Administration

As the Trump Administration embarks on its second term, significant shifts in government enforcement priorities are quickly taking shape. Not surprisingly, this administration appears to be focusing on immigration, drug and violent crime offenses, and traditional fraud rather than more novel white-collar enforcement. Additionally, it appears as though the Department of Justice will face potential resource issues due to the efforts of the Department of Government Efficiency (DOGE). Whether that is through hiring freezes, resignations resulting from ending remote work, layoffs, and potential buyouts of federal employees, the reduction of resources could have a substantial impact on staffing for white-collar enforcement cases, which tend to be resource intensive. Nonetheless, businesses and industry professionals should be aware of these evolving trends to ensure compliance and readiness for potential government investigations. Below we highlight what we expect to see throughout this administration’s term.

Immigration: The Trump Administration has reaffirmed its commitment to stringent immigration enforcement. Prior to this administration taking office, agencies like the Department of Labor had been focused on underage labor violations and holding businesses accountable for third party staffing companies. Now, however, the focus will shift to the removal of anyone not legally in the United States, likely leading to an increase in ICE raids and I-9 audits, including in places like hospitals, schools and places of worship, all of which used to be safe havens for this type of enforcement activity.
DEI and False Claims Act Liability: President: President Trump’s executive order aimed at eliminating diversity, equity, and inclusion (DEI) policies introduces new compliance challenges for federal contractors and grant recipients. The order reverses federal contracting requirements dating back nearly 60 years, which obligated federal contractors and subcontractors to implement affirmative action programs. The January 21, 2025, executive order requires federal contractors and grant recipients to agree that their “compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions” under the False Claims Act (FCA). Second, it requires federal contractors and grant recipients to certify that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” The new certification and materiality requirements create heightened FCA risk for clients who participate in government programs and may incentivize whistleblowers to initiate qui tam actions.
Health Care: Health care enforcement, particularly those involving the FCA, is anticipated to continue at a steady pace. During President Trump’s first term, health care enforcement actions increased in his second year and remained steady thereafter, so we can likely expect a similar trend this term. Additionally, the newly established Department of Government Efficiency (DOGE) is taking steps to actively mine data for fraud, particularly in Medicare and Medicaid, which could lead to an increase in enforcement activities in the healthcare sector.
Foreign Corrupt Practices Act: While the Department of Justice (DOJ) achieved record enforcement levels for Foreign Corrupt Practices Act (FCPA) cases during the previous term, President Trump has signed an executive order directing the DOJ to pause criminal prosecutions related to the bribing of foreign government officials under the FCPA and instructing Attorney General Pam Bondi to prepare new guidelines for enforcement. The executive order comes a week after Attorney General Pam Bondi had already announced via a memo that the DOJ would be scaling back laws governing foreign lobbying transparency and bribes of foreign officials. In the memo, Attorney General Bondi also disbanded the National Security Division’s corporate enforcement unit and directed the Department of Justice’s money laundering office to prioritize cartels and transnational crime.
SEC Enforcement: We expect a major scaling back on the SEC’s focus on cryptocurrency, internal accounting and disclosure control violations. President Trump’s nominee as SEC chairman, Paul Atkins, is a known supporter of the crypto industry. Instead, we anticipate a renewed focus on traditional securities fraud cases, including like retail investor protection, Ponzi schemes, and insider trading. Under Chair Gensler, corporate penalties and disgorgement reached record highs, but with a Republican-controlled SEC we are likely to see smaller penalties and an adherence to disgorgement limitations set by the Supreme Court.
Antitrust: Antitrust enforcement is expected to pivot away from merger scrutiny towards addressing concerns related to “Big Tech” and alleged censorship. Additionally, there may be enforcement actions targeting alleged collusion on DEI issues, reflecting the administration’s executive orders and stated policy goals. Industries under high public scrutiny and foreign corporations should be particularly vigilant in preparing for potential agency scrutiny.

As the enforcement landscape continues to evolve, it will be crucial to stay informed and proactive.

DOJ Narrows FCPA Enforcement Focus

Attorney General (AG) Pam Bondi has issued a directive that both: (1) effectively shifts the DOJ’s FCPA enforcement focus towards those cases related to foreign bribery involving cartels and transnational criminal organizations (TCOs); and (2) expands the DOJ’s ability to prosecute certain types of FCPA violations.
Questions around how and to what extent FCPA enforcement will be impacted under the current Trump administration have been swirling. While early into President Trump’s second term, his administration has already taken steps aimed at implementing substantive changes throughout the Executive Branch, reforming the DOJ, as well as reducing the size of the federal workforce. This has led many to anticipate the potential scaling back of FCPA enforcement efforts in the near future.
Shift in FCPA Enforcement Focus
AG Bondi has recently issued fourteen memos, addressed to all DOJ employees, detailing new policies and priorities for the DOJ across a range of enforcement activities. The FCPA was specifically named in the “Total Elimination of Cartels and Transnational Criminal Organizations” directive (the “Directive”). The Directive provides more insight as to the DOJ’s priorities around FCPA enforcement going forward.
Specifically, the Directive states that “[t]he Criminal Division’s FCPA Unit shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection.”
The Directive also overrides certain sections of the Justice Manual, as it relates to foreign bribery involving cartels or TCOs, that required FCPA cases to be either conducted by Fraud Section prosecutors or approved by the Criminal Division. In other words, U.S. Attorney Offices are now empowered to also pursue criminal FCPA cases involving foreign bribery and cartels or TCOs – no longer requiring approval to bring such matters – having provided 24 hours notice to the Criminal Division before proceeding.
FCPA Background
The FCPA is a two-pronged federal statute that contains anti-bribery provisions as well as accounting provisions; the accounting provisions address both internal controls (e.g., maintaining robust internal systems designed to prevent and identify corrupt activities) and books and records (e.g., maintaining accurate records that make it challenging to hide improper payments). The DOJ and SEC have dual enforcement authority over the FCPA, with the DOJ pursuing criminal violations of the FCPA and the SEC handling civil matters pertaining to publicly traded companies.
Since the FCPA was enacted in 1977, enforcement has focused on targeting corporate corruption where companies – including through, indirectly or directly, their third-party intermediaries (e.g., consultants, distributors, sales agents, etc.) – have improperly gained or retained unfair business advantages in exchange for providing something of value to foreign government officials. With the current shift in FCPA enforcement priorities, the DOJ is anticipated to redirect efforts away from targeting bribery in the context of legitimate corporate industries to focusing on bribery schemes in connection with organized crime and cartels.
It will be interesting to see how objectives under the Directive play out, given the logistics of the FCPA. For instance, the FCPA’s scope covers issuers (publicly traded companies with securities listed on a national securities exchange in the U.S.), domestic concerns (U.S. companies or U.S. persons), as well as any other persons that engage in acts furthering corruption while in the U.S. These limitations may exclude many individuals and entities involved in cartels or TCOs. In other words, the FCPA’s design – considering its jurisdictional reach and entity-focus – may limit its effectiveness as a tool against organized crime.
Why Compliance Still Matters
While DOJ’s FCPA enforcement priorities may be shifting under the Trump Administration to focus on cartels and TCOs, this should not be read as DOJ will no longer pursue other forms of foreign corruption. The Directive does not suggest any plans to repeal or even weaken the FCPA, rather the Directive refocuses DOJ’s FCPA enforcement priorities.
For nearly two decades, the FCPA has been a cornerstone of DOJ’s corporate enforcement efforts. This continued focus has resulted in steady and substantial financial recoveries – with penalties exceeding one billion dollars in some cases – over the course of several presidential terms spanning both Democratic and Republican leadership, including President Trump’s first term. Precedent suggests that FCPA enforcement is an entrenched priority for the DOJ and SEC, transcending individual administrations and political affiliations. Further, several countries have also enacted similar anti-bribery and anti-corruption regulations. When pursuing FCPA resolutions, international cooperation between the U.S. and foreign authorities has been essential in order to navigate the complexities of FCPA cases, which usually involve international transactions, multiple actors, and diverse legal frameworks.
Regarding corporate compliance programs, the DOJ will frequently give credit when considering the appropriate resolution, monetary penalty, and subsequent compliance obligations, if the company is able to demonstrate it has a robust and well-designed compliance program, including having made improvements to the program in response to the investigated misconduct. In other words, a company may be able to secure a more favorable outcome if it maintains a strong compliance program, which may ultimately result in the DOJ determining not to prosecute.
There are other benefits for companies that invest in their compliance programs:

Risk Management: Robust compliance programs help prevent potential compliance issues before they occur. Further, early detection of potential violations allows for timely intervention, remediation, and disclosure, if necessary.
Informed Decision-Making: Companies are better positioned to make strategic business decisions with a strong compliance foundation. This includes evaluating and responding to potential enforcement-related situations.
Long-Term Business Integrity: Maintaining high compliance standards fosters a culture of ethical business practices, which can enhance a company’s reputation and promote stakeholder confidence.
Adaptability to Regulatory Changes: A well-designed and effective compliance program is more easily adaptable to shifting regulatory landscapes and emerging risks, enabling companies to more efficiently respond to new enforcement trends.

Takeaway
Regardless of the DOJ’s FCPA enforcement priorities shifting, companies will continue to meaningfully benefit from maintaining and investing in their compliance programs. Further, the Directive does not impact SEC enforcement of FCPA violations; in other words, issuers that fall under the SEC’s jurisdiction will need to continue to comply with the FCPA regardless of DOJ’s shift in FCPA enforcement focus. Moreover, the applicable statute of limitations for FCPA violations generally extends beyond the current administration. Ultimately, companies would be well advised to continue to ensure that their compliance programs are effective and well-resourced in order to mitigate risks.

Immigration Policy Tracker: January 20—February 5, 2025

The first three weeks of the new presidential administration resulted in numerous executive orders and agency actions impacting foreign nationals living and working in the United States. These actions were far-reaching, with potential impacts for employers and sponsored employees across the United States. This article discusses several of the actions that may have the most impact on employers, including updates on visa screening, potential travel restrictions, the sunset of temporary protected status (TPS) for Venezuela, and increased enforcement in sensitive locations, which include hospitals and universities.

Quick Hits

Visa Issuance Review: Several orders have the potential to impact trade visa issuance, visa screening procedures, and the potential for limitations on admission to the United States.
Sunset of TPS for Venezuela: Executive agencies are charged with reviewing humanitarian status programs, resulting in the first termination of temporary protected status programs.
Increased Enforcement: DHS rescinded a long-standing policy on conducting enforcement actions in sensitive locations, and President Trump issued an executive order that may impact universities with foreign students.

Review of Trade Agreements, Visa Issuance Procedures, and Potential for Travel Bans
The “America First Trade Policy” revisits and reviews the United States-Mexico-Canada Agreement (USMCA), as well as other existing U.S. trade agreements in consultation with other executive departments and agencies.

The outcome of this review has the potential to impact trade visa categories, including TN, E-1, E-2, E-3, and H-1B1 visas.

The “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats” executive order charges executive agencies, including the U.S. Department of State, with reviewing visa application vetting procedures. Agencies need to make a recommendation within the next sixty days if certain countries and their citizens require enhanced vetting or a full suspension of admission to the United States.

This order has the potential to increase visa processing times and may result in a partial or full suspension of entry for citizens from certain countries.

Humanitarian Programs Under Review
Last week, the 2023 TPS designation for Venezuela was officially terminated, sunsetting that program as of April 7, 2025. This was the most recent humanitarian program to come under review. The administration also suspended U.S. participation in the refugee admissions program for the next ninety days under the “Realigning the United States Refugee Admissions Program” executive order. All humanitarian parole and temporary protected status designations have been ordered to be reviewed by the U.S. Department of Homeland Security (DHS) pursuant to the “Protecting the American People Against Invasion” executive order.

TPS and other humanitarian parole programs account for over a million individuals in the United States, and a sunset of work authorizations in these categories may have impacts across the U.S. labor market.

Immigration Enforcement Expanded
Immigration enforcement was a central element of the incoming administration’s policy platform, and the first three weeks saw numerous executive orders relating enforcement actions.
DHS revoked a long-standing policy limiting enforcement actions at sensitive locations, which included schools, medical facilities, places of worship, social services establishments, children’s gathering places (playgrounds and childcare centers), places for disaster or emergency response and relief, wedding and/or funeral sites, and public demonstrations (parades, marches, demonstrations, and rallies).

With the rescission of the prior sensitive areas policy, enforcement actions may now be conducted in locations that had previously not experienced U.S. Immigration and Customs Enforcement (ICE) activity. ICE officers can conduct enforcement actions—which include arrests, interviews, searches, and surveillance—in sensitive areas without requiring authorization from senior DHS officials.
ICE officers are encouraged to use discretion, “along with a healthy dose of common sense” when conducting arrests, searches, and interviews in these locations.

On January 29, 2025, President Trump issued an executive order that affirms the administration will “us[e] all available and appropriate legal tools” to combat antisemitism, especially at higher education institutions. The order requests federal agencies to submit reports “[w]ithin 60 days of the date of [the] order” that include, among other data, inventory of all pending administrative complaints, complaints under Title VI of the Civil Rights Act of 1964, and court cases against universities alleging civil rights violations relating to antisemitic activities on campus.

The order also directs agencies to recommend ways to educate higher education institutions on the grounds for inadmissibility, enabling such institutions to monitor, report, and investigate relevant activities by foreign national students, faculty, and staff, potentially leading to their removal.

Key Takeaways
Executive orders impacting foreign national workers in the United States have created uncertainty for employers and employees. Given the stated policy platform of the administration, employers can expect additional policy changes in the coming weeks.
Kristen M. Tully also contributed to this article.

New HSR Rules Go Live: Your Playbook for Effective M&A

Starting today, February 10, 2025, all merger filings will be subject to new Hart-Scott-Rodino (HSR) rules. The new HSR rules will fundamentally alter the premerger notification process, and substantially increase the burden on filing parties, who will need to provide significantly more information and documents with their initial filings.
Companies can take steps today to make filings under the new rules less burdensome and increase the likelihood of achieving antitrust clearance, such as collecting and regularly updating the “off-the-shelf” information needed for all filings, and engaging in earlier discussions with the legal team to identify potential overlaps and supply relationships and develop key themes around transaction rationales and impacts on competition that will need to be included in the filing.

In Depth

MAJOR CHANGES
The two biggest changes in the new HSR rules are the requirements to (1) submit new business descriptions of transaction rationales, competitive overlaps, and supply relationships; and (2) submit more business documents with the filing, including ordinary course strategic documents presented to the CEO or board of directors.
New Business Descriptions

For all transactions, the merging parties must:

Describe each of the principal categories of their products and services.
Identify and explain each strategic rationale for the transaction discussed or contemplated (including rationales later abandoned).

For transactions with competitive overlaps, the merging parties must:

Identify and describe the current products or services that compete with, or could compete with, the other party – including known planned products or services in development.
Submit data on sales of such products in the most recent year, a description of all categories of customer types by product (e.g., retailer, distributor, commercial, residential), and the top 10 customers for the product, and each customer category identified.

For transactions in which the parties have supply relationships, the merging parties must:

Describe each product or service (1) supplied to the other party or another entity that competes with that party, or (2) purchased or otherwise obtained from the other party or another entity that competes with that party; in both cases, above a de minimis threshold.
Submit data on sales or purchases from the other party and/or another entity that competes with that party, and the top 10 customers or suppliers for each such product or service.

Navigating the Matrix of State Healthcare Approvals

The outlook for federal antitrust enforcement remains murky, at best, with uncertainty about whether the new federal HSR rules, merger guidelines, and existing enforcement actions.
The forecast for state antitrust enforcement, however, is much clearer, particularly with respect to the healthcare industry.
State antitrust enforcers have taken a more active role in recent years, less willing to sit back while the Federal Trade Commission (FTC) or the Antitrust Division of the Department of Justice (DOJ) takes the lead in investigating potential anticompetitive conduct or corporate consolidations whose effects will be felt at the state level. Given the local nature of healthcare delivery and the sector’s importance to the well-being of a state’s citizens, it is no surprise that the healthcare industry has been a particular focus of state antitrust enforcement efforts. For example, in the past few years, several states have passed laws establishing state-level transaction notification regimes – often specifically targeting healthcare transactions – based on the federal HSR Act. These notification regimes, often referred to as “Baby HSRs” or “Mini HSRs”, can impose burdens on parties to transactions that otherwise fall below HSR Act reporting thresholds or involve transactions that have limited direct connections to the state. Moreover, these state-level reporting regimes often impose different requirements on transacting parties – some more onerous – than the HSR Act itself.
Unlike the HSR Act, these state-level regimes sometimes impose additional burdens and a higher level of scrutiny when one of the transacting parties is a private equity sponsor or is private equity backed. The rationale usually given for this private equity focus is that states are suspicious of private equity’s involvement with healthcare delivery – i.e., the profit motive will lessen the quality of the care delivered. These concerns about the profit motive lessening quality of care are also reflected in the states that have or are considering legislation to curb the friendly PC model.
The rise of state antitrust enforcement regimes in the healthcare industry is not new, with states implementing or considering new laws and regulations requiring additional approvals for healthcare transactions.
These emerging state-level reporting regimes are tracked in our interactive map available here, which identifies states with reporting regimes and provide a high-level indication of the types of requirements that may be imposed on healthcare transactions captured by the regimes. We encourage you to bookmark the page as we will continue to update the matrix as more states adopt reporting regimes or pass new laws to expand existing ones.

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US Tariff and Trade Update: Temporary Pause on Canada and Mexico, Tariffs on China, China Retaliation, and What’s Next

Canada and Mexico
On 3 February 2025, the United States reached agreements with Canada and Mexico to pause tariffs on imports from those countries in exchange for actions on border security, illegal drugs, and immigration. As a result of these steps, tariffs of 25% on imports from Mexico, 10% on certain energy and critical mineral imports from Canada, and 25% on all remaining imports from Canada will be paused for 30 days, through 12:01 am ET on 4 March 2025. Retaliatory tariffs and other retaliatory measures by Canada and Mexico are also on hold through that date.
Companies and investors with interests in North America should use this pause in tariffs to review their supply chains, investments, and business plans. There is particular urgency for those companies with cross-border operations and for those dealing in energy and energy products from Canada.
China and Hong Kong
US tariffs of 10% on imports from China and Hong Kong went into effect on 4 February 2025 at 12:01 am ET. Goods that were on a vessel at a port in China or Hong Kong or in transit to the United States on a ship or plane prior to 12:01 am ET on 1 February 2025 are excluded from the additional tariffs, provided they enter the United States before 12:01 am ET on 7 March 2025. These tariffs are on top of tariffs previously imposed on imports from China under the Section 232 and Section 301 measures implemented in President Trump’s first term and continued by President Biden.
In addition, upon completion of changes to US Customs and Border Protection processing procedures, the latest tariff action will end duty-free eligibility for individual shipments of goods from China and Hong Kong under the so-called “de minimis” provision of 19 USC Section 1321(a)(2)(C). That provision normally exempts from tariffs and US customs entry requirements any individual shipment imported by one person on one day having an aggregate fair retail value in the country of shipment of not more than $800.
In response to the US tariffs, China put in place a 15% tariff on US coal and LNG and a 10% tariff on over 70 products, including crude oil, agricultural machinery, cars, and pickup trucks imported into China after 10 February 2025. China also restricted exports to the United States of metals and critical minerals like tungsten, tellurium, bismuth, molybdenum and indium.
These latest actions underscore the importance of developing contingency plans to reduce supply chain risk and manage the impact of the tariffs and retaliatory measures on contracts, investments, and revenues. While the possibility of a pause of the tariffs on China (and China’s retaliatory trade measures) cannot be ruled out entirely, based on the latest announcements from the White House and Chinese government, companies and investors should anticipate that these and other tariff and trade measures may continue to impact US-China trade for the foreseeable future.
What’s Next
This week in Washington also saw the President and his senior trade advisors signal further actions to implement the remaining planks of the America First Trade Policy memorandum signed by President Trump on 20 January 2025. Prominent among these are potential new tariffs on imports from countries with which the United States runs persistent merchandise trade deficits (including the European Union and Vietnam) and new Section 232 and Section 301 investigations of steel, aluminum, critical minerals, and essential medicines (which foreshadow potential additional tariffs on those products). The administration and a bipartisan group in Congress have also proposed legislation that would revoke China’s “most favored nation” status under US trade laws and reset normal US customs duties on imports from China to the much higher Smoot-Hawley tariff rates (e.g., 35% or more).
While the America First Trade Policy calls for reports on these and other issues to be submitted to the President by 1 April 2025, statements by President Trump and his trade advisors this week indicated that some of these reports may be largely complete and actions (including additional tariffs) may be introduced before 1 April. In a 7 February press conference, for example, President Trump indicated that he plans to announce details on actions to address US bilateral trade deficits and introduce possible “reciprocal tariffs” as early as “next week” (i.e., the week of 9-15 February 2025).

Judge Denies Kochava’s Motion to Dismiss FTC’s Suit Over Selling Geolocation Data

On February 3, 2025, U.S. District Judge B. Lynn Winmill of the District of Idaho denied digital marketing data broker Kochava Inc.’s motion to dismiss a suit brought by the Federal Trade Commission. As previously reported, in August 2022, the FTC announced a civil action against Kochava for “selling geolocation data from hundreds of millions of mobile devices that can be used to trace the movements of individuals to and from sensitive locations.”
In the order denying Kochava’s motion to dismiss, Winmill rejected Kochava’s argument that Section 5 of the FTC Act is limited to tangible injuries and wrote that the “FTC has plausibly pled that Kochava’s practices are unfair within the meaning of the FTC Act.”

Key Takeaways on New U.S. Tariffs on Canada, China and Mexico Imports

On Feb. 1, 2025, the White House published new executive orders imposing tariffs on goods imported from Canada, Mexico and China citing national security threats of illegal immigration and drugs and statutory authority under the International Emergency Economic Powers Act (IEEPA).
Specifically, the executive orders impose a 10 percent tariff on imports from China and a 25 percent tariff on imports from Mexico and Canada, excluding Canadian energy imports, which will carry a 10 percent tariff. Below are initial highlights from the orders and from the Federal Register notices published shortly after the orders:

The effective date and time of the tariff actions is on or after 12:01 a.m. Eastern time on Feb. 4, 2025, except for tariffs on Mexico and Canada, which have been deferred for one month, until March 4, 2025.
The IEEPA tariffs appear to cover every imported commodity from Canada, Mexico, and China, with the exception of limited statutory exclusions on personal communications, donated articles, informational materials (e.g., certain publications, films, and artwork), and transactions ordinarily incident to travel
The executive orders are silent on whether there will be a product exclusion process, akin to the exclusions for Section 301 and Section 232 tariffs
The executive orders include a retaliation clause that should Canada/Mexico/China retaliate against the U.S. in response (i.e. tariffs on U.S. exports), then the “President may increase or expand in scope the duties imposed under this Executive Order to ensure the efficacy of this action.”
Drawback (refund) claims and the $800 de minimis exclusion are not available under these IEEPA tariffs

In a prior post on potential tariffs, we had noted the possible use of IEEPA to impose immediate tariffs. No president has used IEEPA to impose tariffs, although President Richard Nixon used a predecessor statute to IEEPA to impose a 10 percent tariff on all imports in 1971.
What does this all mean, and what is next for importers and stakeholders affected by these tariffs? Below are a few issues and questions to keep in mind:

What exactly will be the U.S. response to the announcement of retaliatory measures? Canada announced tariffs of 25 percent on $155 billion worth of American goods. These tariffs target products such as orange juice, peanut butter, wine, spirits, beer, coffee, appliances, apparel, footwear, motorcycles, cosmetics, and pulp and paper. Mexico initially announced plans to impose retaliatory measures. But since that time, Mexico and Canada have agreed to take action at the border, resulting in a one-month deferral of the application of IEEPA duties against Mexico and Canada and suspension of any reciprocal tariffs.
IEEPA tariffs on China are 10 percent, but these are on top of existing Section 301 tariffs that are 25 percent on most goods from China. Interestingly, there will now be a smaller group of products from China that are subject to lower Section 301 duties (List 4A, 7.5 percent) or even no Section 301 duties. Thus, if the suspended Canada and Mexico tariffs ultimately go into effect, imports of those products from China may actually be subject to lower duties than imports of the same products from Canada and Mexico.
For China, the Federal Register is silent on the applicable rule of origin, although it is anticipated that “substantial transformation” will be the applicable rule. For Canada, there will actually be two applicable rules of origin for IEEPA tariffs – USMCA marking rules of origin and the “substantial transformation” legal standard. This will have particularly interesting implications for importers of goods produced in Canada from Chinese-origin materials. Indeed, an FAQ released by the White House states that IEEPA tariffs will be in addition to any other tariffs imposed under other authorities.

Tayo Osuntogun, Michelle Rosario, and Yusra Siddique contributed to this article

Ohio Lawmakers Introduce Bipartisan Bill to Ban Noncompete Agreements

Ohio could become the latest state to join the growing list of jurisdictions to ban or significantly restrict the use of noncompete agreements in employment under bipartisan legislation introduced by a pair of state lawmakers.

Quick Hits

Ohio state senators have introduced bipartisan legislation to ban noncompete agreements that restrict workers post-employment and provide them with the right to take legal action against employers.
The proposed bill would void any noncompete agreements entered into or modified after the bill’s effective date.
If passed, Ohio would join the growing number of states implementing restrictions on noncompete agreements, following a broader trend.

On February 5, 2025, Ohio state Senators Bill Blessing (R-Colerain Township) and Bill DeMora (D-Columbus) filed Senate Bill (SB) 11, which would prohibit employers from entering into or attempting to enter into a noncompete agreement with a worker or “prospective worker.” The cosponsorship signals the possibility of bipartisan support for the measure.
Ohio is currently one of fewer than a dozen states without legislation on noncompetes, such as prohibiting them, requiring notice, limiting them to high-wage earners, or other similar limitations.
Instead, the enforceability of noncompetes in Ohio remains governed by the 1975 Ohio Supreme Court case Raimonde v. VanVlerah, which sets forth factors for a court to consider as to whether a restrictive covenant is reasonable and based upon a protectable business interest.
SB 11
As introduced, SB 11 would prohibit employers from enforcing agreements that prohibit or penalize workers for seeking or accepting work or operating a business after the conclusion of the relationship between the employer and worker. Such prohibited restrictions include an agreement that:

“the worker will not work for another employer for a specified period of time, not work in a specified geographic area, or not work for another employer in a capacity similar to the worker’s work for the employer”;
“requires the worker to pay for lost profits, lost goodwill, or liquidated damages because the worker terminates the work relationship”;
“imposes a fee or cost on a worker for terminating the work relationship”;
requires a worker who terminates his or her employment to reimburse the employer for expenses incurred for training, orientation, evaluation, or other services to improve the workers’ performance; and
the worker will not work for another employer for a specified period of time, not work in a specified geographical area, or not work for another employer in a capacity similar to the worker’s work for the employer.

Such agreements would be void if entered into, modified, or extended after the effective date of the bill.
Employers would be prohibited from requiring claims for violations of the noncompete ban outside of the state or depriving claimants of state legal protection for disputes arising in the state. However, that choice of law restriction would not apply to workers who are represented by legal counsel and choose a venue or forum to adjudicate the claim, or choose the law to be applied.
SB 11 would further provide workers with a right of action to bring civil claims against employers for violations to seek damages, including costs, attorneys’ fees, actual damages, punitive damages up to $5,000, and injunctive relief. Workers would also be able to file complaints with the attorney general or the director of commerce, who will investigate and may bring actions on behalf of the worker.
Next Steps
It is too soon to predict whether SB 11 will have momentum, but state-level limitations on restrictive covenants have been trending in the last decade. That trend could continue, particularly after a 2024 Federal Trade Commission (FTC) rule that sought to ban nearly all noncompete agreements in employment was struck down in court. It is unclear whether the Trump administration will continue to pursue the Biden-era ban, leaving it to states to regulate noncompete agreements.

Trump Tariffs 2.0: FAQs on How Your Contract Comes into Play [Video]

Video FAQ: Does your contract protect you?
The Trump administration’s tariffs have reshaped global trade—but how do they impact your contracts? From force majeure to price adjustment clauses, understanding these provisions is critical for protecting your business.