Federal Court Blocks Trump’s Anti-DEI Executive Orders Nationwide
Overview
Shortly after taking office, President Donald Trump issued two executive orders (EOs) targeting diversity, equity, and inclusion (DEI) programs: EO 14151, “Ending Radical And Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” (collectively, the anti-DEI EOs).
On February 21, 2025, following a lawsuit filed by the National Association of Diversity Officers in Higher Education and the American Association of University Professors (collectively, the plaintiffs), the US District Court for the District of Maryland granted a motion for preliminary injunction based on First and Fifth Amendment challenges to the anti-DEI EOs. The court’s order prevents certain aspects of the EOs from taking effect nationwide until a final determination is made on the plaintiffs’ constitutional challenge.
In Depth
LEGAL OVERVIEW
The plaintiffs challenged the following three specific provisions in the anti-DEI EOs as being unconstitutional:
Termination Provision: A provision that directed federal agencies to terminate “equity-related” grants or contracts within 60 days.
Certification Provision: A provision that required federal agencies to include a term in contracts and grants requiring federal contractors and grantees to certify that they do not operate any programs promoting DEI that violate federal anti-discrimination laws as a condition of receiving funding.
Enforcement Threat Provision: A provision that directed the attorney general to take measures to deter DEI programs and identify potential civil compliance investigations.
The plaintiffs argued that these provisions collectively violate the First and Fifth Amendments because they are designed to chill viewpoint speech. They also asserted that the provisions are unconstitutionally vague in informing federal contractors that may be exposed to liability under the False Claims Act what their obligations are and how to comply with them.
The court agreed with the plaintiffs, concluding that:
The Certification and Enforcement Threat Provisions likely violate the First Amendment by chilling speech and imposing viewpoint-based restrictions; and
The Termination and Enforcement Threat Provisions are likely unconstitutionally vague, failing to provide clear guidance and inviting arbitrary enforcement.
WHAT COMPANIES SHOULD DO NEXT
While the nationwide injunction pauses some of the more controversial provisions included in the anti-DEI EOs, it is only a preliminary finding, and the Trump administration may take steps to challenge it. Companies should use this time to work with legal counsel to proactively audit their DEI policies to ensure compliance with existing laws while maintaining alignment with company values.
Joseph Anderson, a law clerk in New York office, also contributed to this client alert.
No Harm, No Foul: Greenwashing Lawsuit Dismissed for Lack of Article III Standing
It is well-settled that under Article III of the Constitution, United States federal courts are limited to trying “cases and controversies.” Moreover, a case or controversy exists only if a plaintiff has standing to file the suit, requiring the plaintiff to demonstrate injury in fact, causation, and redressability. On February 19, 2025, the United States District Court for the Southern District of Florida issued a noteworthy decision and dismissed a putative class action lawsuit filed against lululemon athletica inc., and lululemon usa inc. (“Lululemon”) without leave to amend for lack of Article III standing.
A group of consumers filed the lawsuit alleging that Lululemon made “false, deceptive, and misleading representations” regarding the company’s products and actions as they relate to environmental initiatives in accordance with the company’s “Be Planet” campaign. Gyani v. Lululemon USA Inc., et al., 2025 WL 548405, *1 (S.D. Fla.). For example, the plaintiffs alleged that Lululemon’s website stated that it is “committed to making products that are better in every way-for…the planet.” Id. at *2. In fact, according to the plaintiffs, “Lululemon is responsible for significant GHG gas emissions, landfill waste, and release of microplastics into the environment.” Id. The plaintiffs claimed that they relied on various misrepresentations from the “Be Planet” campaign in deciding to purchase Lululemon products. Id.
The court dismissed plaintiffs’ claims, which were premised on alleged violations of various states’ consumer protection statutes. First, the court found the plaintiffs failed to adequately plead an injury in fact to support claims for monetary damages. The court highlighted that “mere allegations of having paid a price premium are insufficient — a plaintiff must tie the value of the product to any purported misrepresentations.” Id. at 4. On this point, the court found Valiente v. Publix Super Mkts., Inc., 2023 WL 3620538 (S.D. Fla. May 24, 2023) instructive. In Valiente, a plaintiff allegedly purchased cough drops due to the “phrase ‘honey lemon,’ the ‘pictures of these ingredients,’ and the statement that the product ‘soothes sore throats.’” The court dismissed the plaintiff’s claim for lack of injury because the plaintiff failed to allege that the cough drops were in any way “defective” or “worthless.” Id. at *5. The court in Gyani found the facts before it similar in that the plaintiffs’ complaint failed to allege Lululemon’s products were defective or worthless. 2025 WL 548405, *4. Moreover, the plaintiffs failed to allege deceptive or unfair acts as to the products themselves, failing to connect the allegedly problematic “Be Planet” statements to the price premium the plaintiffs alleged that they paid for Lululemon’s products. Id. at *5.
Next, the court held that the plaintiffs failed to plead an injury in fact to support a claim for injunctive relief. The court relied on Williams v. Reckitt Benckiser LLC, 65 F.4th 1243 (11th Cir. 2023) and Piescik v. CVS Pharmacy, Inc., 576 F. Supp. 3d 1125 (S.D. Fla. 2021), where the plaintiffs alleged that they “would like” to purchase the company’s products in the future “if” the defendant improved the products at issue. In Gyani, the complaint similarly alleged that the plaintiffs “would like” to purchase Lululemon’s products, however, “only if” the plaintiffs “can rely on Lululemon ‘to be truthful in their marketing statements regarding the sustainability and environmental impact of Lululemon’s products and actions.’” 2025 WL 548405, *5. The court held that such allegations failed to demonstrate harm that was actual or imminent.
Finally, the court refused to grant leave to amend. Id. at *6. The court held that the plaintiffs’ request was procedurally improper in that the plaintiffs embedded the request in their opposition brief rather than making the request via motion. Id.
Retailers and manufacturers concerned with risk associated with a growing number of environmental or “green” marketing claims will certainly welcome the Gyani decision. The ruling emphasizes that plaintiffs must demonstrate concrete economic injury linked to the at-issue marketing claims to pursue monetary relief as well as a real and immediate threat of future harm to seek injunctive relief; general allegations relating to a price premium and an equivocal desire to make future purchases are not enough. However, the decision certainly will not put an end to putative class actions asserting greenwashing claims. If faced with a similar lawsuit, retailers and manufacturers should consider whether to seek dismissal at the pleading stage when the complaint does not tie the alleged misrepresentations to the value of the product and/or does not adequately allege any real threat of future harm.
New Hampshire’s New “Guns at Work” Law: What Employers Need to Know
New Hampshire has recently made headlines with its new statute allowing employees to bring firearms to work in certain circumstances, which became effective on January 1, 2025. The law, signed by Governor Chris Sununu, allows employees who have concealed carry permits to bring their firearms to work as long as the firearms are secured and stored out-of-sight in employees’ locked vehicles on company property. Note that the law does not require employers to allow guns in the workplace itself; however, it does extend protections to employees who wish to keep their firearms in their personal cars during working hours.
Key Provisions of the Law
Right to Keep Firearms in Vehicles: The law allows employees with valid concealed carry permits to store their firearms out-of-sight in their locked personal vehicles, even if their employer has a general policy prohibiting firearms on the company’s premises. Additionally, employers cannot require an employee to disclose whether they are storing a firearm or ammunition in their vehicle.
Employer Exceptions: The law also clarifies that certain businesses with specific restrictions against firearms on their premises, such as gun-free zones, are not required to alter their policies to accommodate employees who want to bring their guns to work. Additionally, all covered employers still have the right to prohibit employees from carrying firearms in areas other than their vehicles, including in the workplace itself.
Civil Liability: The law provides that an employer may not be held liable in any civil action for any damages for any economic loss, injury, or death resulting from or arising out of another person’s actions involving a firearm or ammunition stored pursuant to this statute.
What Does This Mean for Employers?
The law brings challenges and responsibilities for employers. Employers who are hesitant about firearms in the workplace will need to carefully assess their policies to ensure compliance with the new law and previously existing laws. For example, the federal Occupational Safety and Health (OSH) Act’s general duty clause requires employers to protect employees from foreseeable hazards, including incidents of workplace violence. Employers will need to think carefully about how they handle situations where employees store firearms in their vehicles, such as implementing additional security measures to ensure the safety of workers, property, and other visitors.
The introduction of the Guns at Work law is likely to have a mixed impact on workplace culture. In some industries, particularly those where employees work late hours or in remote locations, some workers may feel more secure with firearms nearby. For others, the presence of guns — even if only stored in locked vehicles — could lead to discomfort or fear among staff.
Conclusion
New Hampshire’s new Guns at Work law is a significant step in the state’s evolving gun culture, and it reflects a larger trend of expanding Second Amendment rights in the workplace. With specific provisions aimed at respecting personal rights, this law sets the stage for future debates on the role of firearms in the workplace and how best to balance security, safety, and individual rights.
Federal Judge Reinstates NLRB Member Wilcox Removed by President Trump
National Labor Relations Board (NLRB) Member Gwynne Wilcox, removed by President Donald Trump during his first days in office, has been reinstated by a federal judge of the U.S. District Court for the District of Columbia. The judge ruled that the president does not have the authority to remove a sitting NLRB member without cause.
Quick Hits
A federal judge in Washington, D.C., reinstated NLRB Member Wilcox, reversing President Donald Trump’s removal.
The judge held that the president lacks authority to remove NLRB members at will.
The decision is likely to be appealed, as it raises constitutional and separation of powers questions, the answers to which could significantly impact the Trump administration’s actions.
On March 6, 2025, U.S. District Judge Beryl A. Howell ordered that Wilcox be reinstated to the Board and complete her five-year term, which expires on August 27, 2028.
President Trump removed Wilcox—a Democratic appointee to the NLRB and briefly the NLRB chair—from the Board on January 27, 2025, leaving the Board with only two sitting members and without a quorum to hear cases. Wilcox later filed a lawsuit challenging the legality of her removal, alleging her removal violated the National Labor Relations Act (NLRA) because it was without notice or a hearing and without an alleged cause.
Judge Howell granted summary judgment for Wilcox on the claims and enjoined NLRB Chair Marvin Kaplan, whom President Trump had tapped to replace Wilcox as chair, from “removing [Wilcox] from her office without cause,” “treating [her] as having been removed from office,” or “impeding in any way her ability to fulfill her duties as a member of the NLRB.”
“The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law,” Judge Howell wrote in a thirty-six-page memorandum opinion. “Defendants concede that removal of plaintiff as a Board Member violates the terms of the [NLRA], … and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.”
Wilcox’s legal challenge has raised significant constitutional and separation of powers issues, and Judge Howell’s decision is likely to be appealed. In 1935, the Supreme Court of the United States, in Humphrey’s Executor v. United States, upheld restrictions on the president’s authority to remove officers of certain types of independent agencies—in that case, a commissioner of the Federal Trade Commission. The Wilcox case, however, is the first attempt to remove an NLRB member by the president without alleged cause.
The NLRA provides the president with the power to appoint NLRB members “with the advice and consent of the Senate” to five-year terms and to remove “any member … upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Judge Howell rejected the Trump administration’s argument that removal protections presented an “extraordinary intrusion on the executive branch,” finding “NLRB Board members’ removal protections … consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements.”
“That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence,” Judge Howell wrote.
Next Steps
If not stayed by a federal appeals court, the decision will reinstate Wilcox to the NLRB, at least for now, as the case is likely to be appealed and could potentially land at the Supreme Court, given the constitutional questions. Wilcox’s removal had left the NLRB with only two sitting members: Republican-appointee Kaplan and Democratic-appointee David Prouty. Without a quorum, the NLRB had been unable to hear a growing backlog of cases.
The reinstatement reverses President Trump’s apparent move to shift labor policy away from the union-friendly priorities of his predecessor. The same day he removed Wilcox, President Trump also discharged NLRB General Counsel Jennifer Abruzzo. The president later appointed William B. Cowen as the NLRB’s acting general counsel. Cowen has rescinded many of the former general counsel’s memoranda that laid out her aggressive policy agenda.
Michigan Federal Court Holds CTA Reporting Rule Unconstitutional, Enjoins Enforcement Against Named Plaintiffs
On March 3, 2025, a Michigan federal district court in Small Business Association of Michigan v Yellen, Case No. 1:24-cv-413 (W.D Mich 2025) (SBAM), held that the CTA’s reporting rule is unconstitutional under the Fourth Amendment (unreasonable search) and entered a judgment permanently enjoining the enforcement of the CTA reporting requirements against the named plaintiffs and their members only. The district court did not find it necessary to, and did not, rule on the plaintiffs’ separate Article 1 and Fifth Amendment constitutional claims, instead leaving them “to another day, if necessary.”
The SBAM plaintiffs include (a) the Small Business Association of Michigan and its more than 30,000 members, (b) the Chaldean American Chamber of Commerce and its more than 3,000 members, (c) two individual reporting company plaintiffs, and (d) two individual beneficial owner plaintiffs owning membership interests in reporting companies.
We are not aware as of the date of this Alert whether the defendants have, or intend to, appeal the SBAM judgment to the Sixth Circuit Court of Appeals.
Federal Judge Denies Bid to Stay Preliminary Injunction Blocking President Trump’s DEI-Related Executive Orders
On March 3, 2025, a federal judge in Maryland refused to halt a preliminary injunction blocking key parts of two of President Donald Trump’s executive orders (EO) seeking to eliminate “illegal” diversity, equity, and inclusion (DEI) programs and initiatives in the federal government and in federal contracting.
Quick Hits
A federal judge maintained a preliminary injunction blocking key provisions of President Trump’s executive orders aimed at DEI initiatives, finding that the government had failed to show a reason to halt the injunction pending appeal.
The judge rejected the Trump administration’s argument that the preliminary injunction prevents the executive branch from implementing its policies, noting that such policies must still comply with the United States Constitution, particularly in this case, free speech and due process rights.
The Trump administration is appealing the preliminary injunction ruling, indicating that the constitutionality of the EOs will continue to be litigated, potentially reaching the Supreme Court of the United States.
U.S. District Judge Adam B. Abelson denied the Trump administration’s motion to stay the preliminary injunction issued on February 21, 2025, in the case brought by a coalition of DEI advocates. The judge found the Trump administration had failed to show a stay was warranted, given the plaintiffs’ likelihood of successfully establishing on the merits that the enjoined parts of the EOs violate free speech and are unconstitutionally vague.
In seeking a stay of the preliminary injunction, the Trump administration argued that it had demonstrated a likelihood of success on the merits and that the plaintiffs had only alleged speculative harms; that the injunction harmed “intra-executive policy implementation by enjoining the President’s policy directives to federal agencies”; and that the preliminary injunction improperly prevented federal agencies from enforcing antidiscrimination laws.
However, Judge Abelson said that he had already considered and rejected the government’s argument regarding its likelihood of success on the merits and that the policy goals of the executive branch must still comply with the Constitution.
“As the Court explained in its memorandum opinion granting the preliminary injunction, the executive branch is obviously entitled to have policy goals and to pursue them,” Judge Abelson said in the decision denying the stay. “But in pursuing those goals it must comply with the Constitution, including, as relevant here, the Free Speech Clause of the First Amendment, and the Due Process Clause of the Fifth Amendment.”
Judge Abelson stated that the blocked provisions of the EOs seek to “punish, or threaten to punish, individuals and institutions based on the content of their speech,” thereby discriminating against viewpoints disfavored by the administration, likely in violation of the First Amendment. Judge Abelson observed that the provisions appear to target “purely private persons” and leverage funding to regulate the speech of “individuals and institutions that happen to contract with (or receive grants from) the federal government.
In addition, Judge Abelson noted, the provisions likely violate the due process clause of the Fifth Amendment because they are so vague that they do not sufficiently explain what is and is not prohibited.
Specifically, the preliminary injunction blocked three provisions of the EOs: (1) a provision that required federal agencies to terminate “equity-related grants or contracts,” (2) a provision that required federal contractors and subcontractors to certify for purposes of False Claims Act (FCA) liability that they do not operate unlawful DEI programs, and (3) a provision directing the attorney general to enforce civil rights laws against DEI programs in the private sector.
The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore—filed the lawsuit on February 3, 2025, challenging EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” issued on January 20, 2025, President Trump’s first day in office, and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on January 21, 2025.
Since that lawsuit was filed, at least three more federal court challenges have been filed targeting the EOs and President Trump’s January 20, 2025, EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which outlined the federal government’s new policy to only “recognize two sexes, male and female.” The suits raise similar constitutional claims, contending that the EOs are vague, violate free speech and due process, exceed the executive branch’s authority, and usurp legislative functions.
Next Steps
Judge Abelson’s denial of the Trump administration’s stay motion keeps in place the preliminary injunction blocking parts of the EO 14151 and EO 14173, meaning that entities affected by the orders will continue to have a reprieve, at least in the short term. However, the Trump administration is appealing the preliminary injunction decision, and the case and other challenges to the EOs are likely to be decided in the federal courts of appeal, and, potentially, by the Supreme Court of the United States.
New Lawsuit Challenges Maryland’s Age-Appropriate Design Code Act
NetChoice has filed a lawsuit challenging Maryland’s Age-Appropriate Design Code Act (“AADC”) on constitutional grounds, arguing that the law’s requirements, including requirements to perform data protection impact assessments, inhibit free speech. The AADC imposes requirements on companies to provide certain protections for consumer personal data where the company knows or has reason to know the consumer is a child under the age of 18. The AADC’s obligations apply to covered entities that offer online products “reasonably likely” to be accessed by children based on at least one of various enumerated criteria in the law. The AADC took effect on October 1, 2024, and sets a deadline of April 1, 2026 for the first data protection impact assessments required under the law. In its suit, NetChoice claims that the AADC’s “best interests of children” standard leads to impermissible state authority to restrict speech available to minors and that the required data protection impact assessments effectively compel speech from covered entities.
NetChoice brought a similar lawsuit challenging California’s Age-Appropriate Design Code. Most recently, the Ninth Circuit Court of Appeals overturned a lower court injunction blocking most of the California law from taking effect, but upheld the injunction blocking implementation of the Act’s data protection impact assessment requirements.
Privacy Tip #433 – Privacy and Security Personnel Throughout Federal Government Fired
The Trump administration has systematically fired federal privacy- and security-focused employees since taking office.
Three members of the bipartisan, independent agency, the Privacy and Civil Liberties Oversight Board (which was established by Congress in 2004 “to ensure that the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties”) were fired on January 27, 2025.
The administration has also fired multiple members of the privacy team and employees who oversee Freedom of Information Act (FOIA) requests from the Office of Personnel Management (OPM), which is the equivalent of the federal government’s human resources department. The firings were discovered when CNN filed a FOIA request with OPM seeking information about the security clearances of Elon Musk and “anyone from the Department of Government Efficiency (DOGE) who has been granted access to sensitive or classified government networks.”
OPM’s response to CNN’s FOIA request, as reported by CNN, was, “Good luck with that they just got rid of the entire privacy team.” In addition to the privacy team and the FOIA response team, the administration fired other members of OPM’s communications staff. Although an OPM official told CNN that the agency did not lay off the entire privacy team, and some of the firings are not effective until April 15, these actions call into question whether OPM can still “ensur[e] the agency’s data privacy practices meet legal requirements and protect the trust of the public” with the sensitive data housed within OPM.
Jonathan Kamens, Information Security Lead at the Department of Veterans Affairs, was also fired. The Associated Press reports that, according to Kamens, sensitive health data of millions of veterans stored on a benefits website is at risk of compromise. Kamens oversaw security for the VA.gov website and was responsible for “securing private health and financial information including bank account numbers and credit card numbers.” According to Kamens, millions use the VA.gov website monthly: “VA.gov has access to a huge number of databases within VA in order to provide all of those benefits and services to veterans, so if that information can’t be kept secure, then all of that information is at risk and could be compromised by a bad actor.” Kamens questioned whether DOGE workers were background-checked to access the data, alleging that “[t]hey’re not confirmed to be trustworthy.”
More recently, 21 DOGE staffers resigned on February 25, 2025, stating that they would not use their “skills as technologists to compromise core government systems, jeopardize Americans’ sensitive data, or dismantle critical public services…We will not lend our expertise to carry out or legitimize DOGE’s actions.” According to the joint resignation letter, the staffers (who had previously been part of the U.S. Digital Service, which was assimilated into DOGE after the inauguration) wrote, “We swore to serve the American people and uphold our oath to the Constitution across presidential administrations. However, it has become clear that we can no longer honor those commitments.”
Earlier in February, about 40 staffers from the Digital Service had been laid off. The resignation letter claimed that “[t]hese highly skilled civil servants were working to modernize Social Security, veterans’ services, tax filing, health care, disaster relief, student aid, and other critical services. Their removal endangers millions of Americans who rely on these services every day. The sudden loss of their technology expertise makes critical systems and American’s data less safe.”
The resigning staffers also alleged that they were interviewed by individuals wearing White House visitors’ badges (some of whom would not identify themselves) about their politics after the inauguration. According to the staffers, these individuals appeared to have “limited technical ability,” and the process “created significant security risks.”
Federal employees focused on privacy and security are tasked with ensuring that all of our data is accessed, used, and disclosed lawfully and that our data is protected and secured using established protocols. It is very uncertain at this time whether these laws and protocols are being followed when so many of these employees have been fired. It is crucial to stay abreast of the impacts these firings will have on the protection of our data and to be able to obtain assurances that proper measures are being taken by DOGE employees who have access to the data.
CAUGHT WITH THEIR HAND IN THE COOKIE JAR?: CNN’s Privacy Lawsuit is Served Fresh and the Court is Taking a Bite
Greetings CIPAWorld!
Well folks, it looks like CNN is about to get a course in the ABC’s of CIPA! If you’ve ever wondered what happens behind the scenes when you visit a news website, a recent court case might make you think twice before clicking on your next headline. A federal judge in New York just rejected CNN’s Motion to Dismiss a class action lawsuit, putting the media giant on the defensive in what’s shaping up to be a significant showdown over digital privacy rights. CNN might be in the business of breaking news, but now they’re possibly breaking privacy laws too—allegedly, of course. It sounds like they need Troutman Amin on the speed dial. The case can potentially expose how the invisible machinery of web tracking operates—and whether it violates California privacy law.
Remember our CIPA queen, Queenie, who first broke the news on this case back in January 2024? She predicted this wave of pen register litigation after the Greenley v. Kochava ruling opened the floodgates. Well, her crystal ball was spot-on once again!
What started as a lesser-known facet of CIPA has become the next major battleground in privacy litigation. For those keeping score at home, Queenie’s batting a thousand on predicting CIPA litigation trends—from chat box cases to web session recording and now these pen register claims. If I were a betting person, I’d put my money on whatever she predicts next.
For a refresher on Queenie’s original deep dive into this case and its significance, check out her blog post here: CNN BREAKING NEWS: CNN Targeted In Massive CIPA Case Involving A NEW Theory Under Section 638.51!
So let’s get into the update. In Lesh v. CNN, Inc., No. 24 Civ. 03132 (VM), 2025 U.S. Dist. LEXIS 30743 (S.D.N.Y. Feb. 20, 2025), pits a seemingly routine website visit against a state privacy law initially designed for telephone surveillance. Plaintiff, an ordinary visitor to CNN.com, found herself the lead plaintiff in a lawsuit alleging that CNN secretly installed tracking software on her browser without consent. But this isn’t just about one person’s browsing habits—it’s about whether companies can legally monitor users in ways most people never realize.
Of course, we are dealing with a CIPA claim here. Specifically, Section 638.51 prohibits installing or using what’s called a “pen register” without a court order. For those new to CIPA litigation, let’s break it down. I think it’s important to first break down the basics for aspiring future lawyers in this space or just for your own general knowledge to brush up on.
Originally, pen registers were devices used to record telephone numbers dialed from a specific phone line without capturing the actual conversations. Think of those old spy movies where agents track which numbers a suspect is calling. However, Judge Victor Marrero didn’t let the outdated terminology limit his interpretation. He ruled that how CNN’s trackers collect and transmit user data might qualify as a modern equivalent of a pen register. In other words, what once applied to landlines may now apply to websites silently gathering data behind the scenes.
Next, let’s talk about what CNN’s website actually does when you visit it (at least allegedly, according to the court documents). When your browser sends a request to CNN’s server, the server doesn’t just send back news articles. It also allegedly sends instructions that result in the installation of trackers from third-party companies like PubMatic, Magnite, and Antiview. These trackers, developed by third-party software companies that sell technology to help businesses place advertisements on their websites, then collect users’ IP addresses—a unique identifier that reveals their approximate location—and store cookies on their browsers to recognize them on future visits. The Court noted that these trackers don’t just passively log visits—they actively gather and transmit data about users, allegedly without their explicit consent.
What’s particularly clever about Judge Marrero’s analysis is how he breathes new life into an old statute. He rejected CNN’s argument that CIPA only applies to telephones, reasoning that “the plain text of Section 638.50 clearly does not limit the application of pen registers to telephones.” Lesh, 2025 U.S. Dist. LEXIS 30743, at *11. He continued, “[T]he Court cannot ignore the expansive language in the California Legislature’s chosen definition [of pen register],” which is “specific as to the type of data [collected],” but “vague and inclusive as to the form of the collection tool.” Lesh, 2025 U.S. Dist. LEXIS 30743, at *11-12 (quoting Greenley v. Kochava, Inc., 684 F. Supp. 3d 1024, 1050 (S.D. Cal. 2023)).
In other words, the law wasn’t designed to protect telephones—it was designed to protect information. And if a website tracker is secretly capturing addressing information, the court says that’s fair game for regulation under CIPA. Judge Marrero’s reasoning builds on the framework established in Greenley, where another court applied CIPA to modern digital tracking tools, rejecting the idea that pen registers are limited to phone lines.
It is refreshing to see courts adapting old laws to new technologies rather than throwing up their hands and waiting for legislatures to catch up. Judge Marrero found that IP addresses qualify as “addressing information” under the statute, citing the Ninth Circuit’s observation that “IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of the communication than do phone numbers.” In re Zynga Litig., 750 F.3d 1098, 1108 (9th Cir. 2014).
This decision aligns with a broader legal trend recognizing that digital tracking implicates privacy rights. In Carpenter v. United States, 585 U.S. 296, 138 (2018), the Supreme Court held that historical cell site data collection constitutes a search under the Fourth Amendment. Similarly, the Lesh ruling suggests that collecting and transmitting IP addresses without consent could be an unlawful invasion of privacy under CIPA.
CNN also attempted to argue that collecting an IP address does not violate privacy rights, citing Fourth Amendment case law. Specifically, CNN relied on cases like United States v. Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017), which held that individuals do not have a reasonable expectation of privacy in their IP addresses under the Fourth Amendment. However, the Court swiftly rejected this argument, noting that CIPA imposes broader privacy protections than the constitutional floor set by the Fourth Amendment. As Judge Marrero explained, the fact that the Fourth Amendment does not recognize an expectation of privacy in IP addresses does not mean that California law cannot provide greater protections. The Court emphasized that CIPA ‘extends beyond constitutional constraints’ and is an independent statutory safeguard against unauthorized tracking. This means that even if the government could collect IP addresses without violating the Constitution, private companies might still run afoul of CIPA when doing the same thing.
What is more, CNN asserted that it was entitled to an exception in the law for situations where “the consent of the user of that service has been obtained.” But Judge Marrero wasn’t buying it, noting that it would be “illogical to allow CNN’s consent to the installation of Trackers to bar claims from users like Lesh who did not give their consent.” Lesh, 2025 U.S. Dist. LEXIS 30743, at *13. Clearly, CNN cannot simply consent to its data collection practices and then claim immunity from privacy violations.
The Court also analyzed whether CNN’s Terms of Use were enforceable under a clickwrap or browsewrap framework. CNN argued that Lesh had agreed to its Terms of Use, which supposedly disclosed the use of trackers. To prove it, they submitted screenshots from the Wayback Machine (an internet archive). But the Court refused to consider these screenshots, finding they weren’t properly authenticated. Even beyond the evidentiary issue, the Court found that CNN’s agreement wasn’t a traditional “clickwrap” contract—where users affirmatively click “I agree” before using the site. Instead, the Court characterized it as a “hybrid clickwrap-browsewrap” agreement, meaning users were presented with a pop-up but were not required to take affirmative action beyond dismissing it. Courts have repeatedly rejected these types of passive consent mechanisms when determining enforceability. See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014) (rejecting website terms where “users were not required to affirmatively agree”).
What strikes me about this case is how it exposes the fiction of consent in our modern digital age. How many of us have actually read those terms of service pop-ups that appear when we visit websites? Be honest—when was the last time you did more than glance at one before clicking “X” to make it go away?
This decision joins other recent cases like Vishal Shah v. Fandom, Inc., No. 24-cv-01062-RFL, 2024 U.S. Dist. LEXIS 193032 (N.D. Cal. Oct. 21, 2024) and Mirmalek v. L.A. Times Commc’ns L.L.C., No. 24-cv-01797-CRB, 2024 U.S. Dist. LEXIS 227378 (N.D. Cal. Dec. 12, 2024), which have similarly found that website trackers collecting IP addresses may violate CIPA.
In both cases, Courts held that these tracking tools gather ‘addressing information’ and function similarly to pen registers, a key issue in Lesh. This interpretation of CIPA could force a significant shift in how websites operate, as it directly contradicts the assumption that IP tracking is legally harmless.
If this interpretation holds up, it could force a massive shift in how websites collect data. Nearly every major website uses similar tracking technologies to gather visitor information, often for advertising purposes. Are they all potentially violating California law? The implications of this case extend far beyond CNN—any website using third-party trackers may now face legal scrutiny.
For now, CNN must answer Lesh’s Complaint within 21 days of the Court’s order.
The internet has evolved faster than our laws, and companies may have exploited that gap. But if this case is any indication, the courts are finally starting to close it.
As always,
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Constitutional Clash: Trump Administration Appeals Ruling Blocking DEI Orders As More Challenges Filed
While the Trump administration appeals a recent federal court ruling that blocked enforcement of key parts of two executive orders (EO) to restrict diversity, equity, and inclusion (DEI) programs and initiatives, the administration faces additional legal challenges alleging the DEI executive orders and an order claiming that there are only two sexes are constitutional.
The legal challenges to the EOs raise constitutional and other legal grounds to enjoin and limit the EOs and other executive actions, which have caused significant compliance concerns for federal contractors, federal money recipients and private sector employers.
Quick Hits
The Trump administration is appealing a preliminary injunction that blocks key components of two executive orders aimed at restricting DEI programs.
The administration also faces at least three additional recently filed lawsuits from civil rights and LGBTQ+ advocacy groups challenging the constitutionality of these orders.
The lawsuits argue that the executive orders are unconstitutionally vague, violate the First Amendment by chilling free speech, and exceed the president’s authority, among other grounds, potentially impacting federal agencies, federal contractors, federal money recipients, and private-sector employers.
Despite the injunction, the executive orders have already caused significant disruptions to diversity, equity, inclusion, and accessibility (DEIA) initiatives, prompting some federal agencies to revise guidance to comply with the administration’s directives.
On February 24, 2025, the Trump administration filed a notice of appeal to challenge the February 21 preliminary injunction ruling holding key portions of the EOs are likely unconstitutionally vague and violate the First Amendment. The administration also filed a motion to stay the injunction’s enforcement pending the appeal.
Specifically, the preliminary injunction ruling blocked enforcement of provisions requiring federal agencies to terminate “equity-related grants or contracts,” requiring federal contractors to certify under potential False Claims Act (FCA) liability that they do not operate unlawful DEI programs and to certify they do not engage in unlawful discrimination, and directing the attorney general to target DEI programs in the private sector.
The ruling came in a lawsuit filed in the U.S. District Court in Maryland on February 3 by a coalition of DEI advocates—the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore.
The groups targeted two of President Donald Trump’s EOs signed in his first days in office on January 20 and 21, 2025—EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
New Challenges
Many legal challenges have been made to Trump’s EOs. While the Trump administration seeks to appeal the preliminary injunction in the Maryland lawsuit, it faces at least three more legal challenges to the DEI orders.
On February 26, 2025, the nonprofit group Chicago Women in Trades filed a lawsuit in the U.S. District Court for the Northern District of Illinois.
On February 20, 2025, a group of LGBTQ+ rights groups and AIDS activists represented by Lambda Legal Defense and Education Fund, Inc. filed a similar challenge in the U.S. District Court for the Northern District of California.
On February 19, 2025, civil rights groups—the National Urban League (NUL), the National Fair Housing Alliance (NFHA), and the AIDS Foundation of Chicago (AFC)—filed a lawsuit on February 19, 2025, in the U.S. District Court for the District of Columbia.
Like the Maryland case, the new suits name President Trump and several federal agencies, including the U.S. Department of Labor (DOL), the Office of Federal Contract Compliance Programs (OFCC), and the U.S. Department of Justice, among others. They seek injunctions to block the EOs and force agencies to reverse their actions to implement the orders.
Both the Lambda Legal and the National Urban League lawsuits additionally target the president’s January 20, 2025, EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which outlined the federal government’s new policy to only “recognize two sexes, male and female.”
The lawsuits raise similar claims:
Unconstitutionally Vague—The suits alleged that the EOs contain vague and undefined language that fails to provide clear guidance on prohibited DEI or diversity, equity, inclusion, and accessibility (DEIA) activities.
First Amendment—The suits alleged that the EOs are designed to chill speech disfavored by the administration, resulting in viewpoint discrimination prohibited by the First Amendment. They allege the EOs put organizations in a position where they must decide whether to continue their missions or lose federal funding.
Due Process—The suits further alleged that the executive orders violate the Due Process Clause of the Fifth Amendment because they are impermissibly vague, suppress free speech, and are discriminatory against protected groups.
Ultra Vires—The suits also alleged that the EOs exceeded the president’s authority and usurped legislative functions.
Impact on DEI Programs
Despite the preliminary injunction, President Trump’s EOs have already significantly disrupted lawful DEIA with both federal contractors/grant recipients and the private sector. Even though enjoined, the EOs continue to create concerns for companies that they could be targeted for programs or initiatives that could arguably be classified as “illegal” DEIA despite that term being undefined in the EOs.
Federal agencies have begun rescinding or revising guidance to align with the president’s EOs. For instance, the U.S. Equal Employment Opportunity Commission (EEOC) has rolled back much of the EEOC’s prior guidance related to issues of gender identity discrimination and harassment against LGBTQ+ individuals.
Notably, the recent injunction does not block portions of the EOs that directed the attorney general to prepare reports and pursue enforcement actions to stop DEIA programs and initiatives in the private sector. U.S. Attorney General Pamela Bondi has already said the Department of Justice (DOJ) Civil Rights Division “will investigate, eliminate, and penalize illegal DEI and DEIA” programs in the private sector and educational institutions that receive federal funds.”
Next Steps
The outcome of these cases could have far-reaching implications for DEIA programs and the ongoing civil rights issues in the United States. As the cases progress, employers may want to monitor how the courts address the complex constitutional and administrative law issues in these lawsuits.
Why President Trump Can’t Just Re-Write the Rules: The EB-5 Program’s Congressional Lock
The EB-5 Immigrant Investor Program, created in 1990 under the Immigration Act, provides a pathway for foreign nationals to obtain U.S. residency through investments in American businesses that generate jobs. Yesterday, President Donald Trump proposed a new immigration initiative, introducing a “gold card” visa that would grant wealthy foreign nationals U.S. residency and a pathway to citizenship in exchange for a $5 million investment. This proposal aims to replace the existing EB-5 Immigrant Investor Program. While this program is subject to scrutiny, it is important to clarify why the president cannot unilaterally modify or terminate it without legislative action from Congress or replace it with other immigrant investment models.
Congressional Authority Over Immigration Law
The U.S. Constitution grants Congress the power to regulate immigration laws, including programs like EB-5 (see Article I, Section 8 of the Constitution), and the Supreme Court has consistently reaffirmed this power (see, e.g., Fiallo v. Bell, 1977). The Immigration and Nationality Act (INA) governs these policies, which includes the structure of visa categories, eligibility criteria, and investment requirements under the EB-5 program. As such, any fundamental changes to the program would require an amendment to the INA, which only Congress can enact. The president’s role in immigration policy, while significant in areas of enforcement and policy interpretation, does not extend to altering or terminating visa programs established by Congress. In 2022, Congress reauthorized EB-5 through 2027 under the EB-5 Reform and Integrity Act (RIA), meaning any attempt to dismantle the program would require new legislation — not an executive order.
Limits on Executive Power
While the president oversees immigration agencies such as U.S. Citizenship and Immigration Services (USCIS), executive authority is confined to administering and enforcing laws as they are written. The president may direct how immigration laws are implemented or prioritize certain enforcement strategies but cannot create new laws or eliminate existing ones. This separation of powers ensures that changes to programs like EB-5 cannot occur at the whim of a single branch of government.
For example, any alterations to investment thresholds, visa allocations, or job creation requirements under the EB-5 Program must be passed through the legislative process, which involves both chambers of Congress. Even if the president disapproves of the program, without Congress enacting legislation to terminate or reform it, the program will remain intact. Moreover, any new visa program, such as the proposed “gold card,” would generally require congressional approval to become law.
Executive Orders vs. Legislative Power
Executive orders and policy memos can shape the way the EB-5 Program is executed, such as altering processing priorities or tightening enforcement measures, but they cannot fundamentally alter or dissolve the program itself. Any attempt by the president to terminate EB-5 without congressional involvement would likely face legal challenges, as it would be considered an overreach of executive power.
Potential Legal Challenges
When faced with challenges to unilateral executive actions regarding immigration policy, courts have historically upheld the principle that significant changes to immigration policy require legislative action. Trump has faced significant legal challenges to his executive orders on immigration, with courts frequently ruling that his actions overstep the authority granted to the executive branch.
Refugee Admissions Suspension – In January 2025, Trump issued an executive order suspending the U.S. refugee resettlement program. This action was challenged by refugee aid organizations, leading to a federal judge in Seattle issuing a preliminary injunction. The judge determined that the executive order likely violated the Refugee Act of 1980, the Administrative Procedure Act, and the Fifth Amendment’s due process clause, emphasizing that the president’s authority has limits and cannot override laws passed by Congress.
Birthright Citizenship – In January 2025, Trump signed an executive order attempting to end birthright citizenship for children born in the U.S. to unauthorized immigrants and certain legal immigrants. This order faced immediate legal challenges, with multiple federal judges issuing preliminary injunctions blocking its enforcement. The courts ruled that the executive order was likely unconstitutional, as it sought to eliminate a fundamental right protected by the 14th Amendment, which grants citizenship to all persons born or naturalized in the United States.
Asylum and Immigration Enforcement – Trump’s executive orders aimed at curbing asylum claims and enhancing immigration enforcement have also encountered legal obstacles. For instance, an executive order suspending the entry of undocumented migrants under any circumstances, citing an “invasion,” has been challenged in court. Critics argue that such actions violate U.S. treaty obligations related to the protection of refugees and overstep the president’s constitutional authority.
These legal challenges underscore the ongoing tension between executive actions and judicial oversight in the realm of immigration policy. The courts have consistently emphasized the need for executive actions to align with constitutional principles and legislative intent, reinforcing the system of checks and balances inherent in the U.S. government. While the president controls immigration enforcement, he cannot override a federal statute. Any executive action targeting EB-5 would likely face immediate legal challenges, as courts have blocked similar overreaches in the past (see also DHS v. Regents of the University of California, 2020).
Prospective EB-5 Investors
For prospective EB-5 projects and investors, it is an excellent time to apply through the EB-5 Program, and many benefits remain in place. Under the Department of State’s upcoming “Visa Bulletin,” all nationalities, including Indian- and Chinese-born nationals, remain current through certain expedited regional center projects and can therefore still take advantage of quick processing times and fast green card issuance.
Conclusion
The EB-5 Program is part of the broader immigration framework established by Congress. While the president can influence the administration of the program, any effort to modify or terminate it requires the action of Congress. The legislative process ensures that significant changes to immigration programs, such as EB-5, are subject to debate and oversight, preserving the balance of powers as outlined by the U.S. Constitution. While the president can propose new immigration policies, the creation of a new visa program like the “gold card” would require congressional approval to ensure its legality and alignment with existing immigration laws. Without such legislative action, the president cannot unilaterally enact the proposed “gold card” visa program.
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New Challenges Loom for OSHA and OSHRC Amid Quorum Issues, Potential ALJ Removals, and Recent Supreme Court Jurisprudence
“The Times They Are a-Changin’” isn’t just a Bob Dylan song title—it is also a fairly accurate description of what has been happening in the arena of the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Review Commission (OSHRC) since early 2023.
Quick Hits
OSHRC, an independent federal agency that resolves disputes between employers and OSHA, has lacked a quorum on its three-person panel since April 2023, leaving pending cases unresolved. The current term of the Review Commission’s only member expires on April 27, 2025.
The Supreme Court’s Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy decisions regarding administrative agencies’ statutory interpretations and adjudication processes may impact OSHA enforcement and OSHRC adjudicative procedures.
The Office of the Solicitor General recently announced that it would no longer defend certain protections for administrative law judges. This position could create opportunities for employers to challenge the authority of OSHRC ALJs.
Background on OSHRC
OSHRC is an independent agency that reviews and resolves disputes between employers and OSHA. OSHRC was created by Section 12 of the Occupational Safety and Health Act of 1970 (OSH Act). It is a three-person panel that requires two members to have a quorum. Without a quorum, OSHRC cannot act, though a quorum is not required to select a case for review.
OSHRC’s members are appointed by the president, subject to the advice and consent of the U.S. Senate. A contest of a citation is heard by one of OSHRC’s administrative law judges (ALJs). The ALJ’s decision becomes final within thirty days unless an OSHRC commissioner designates the case to be heard at the Commission level. If the case is not so designated, the employer can seek further review in one of the federal courts of appeal.
Since April 2023, OSHRC has not had a quorum, and as a result, the thirty cases pending review have remained in limbo—some for as long as four years. Until it has a quorum, those cases will remain in their current status without adjudication. The term for the one remaining member of OSHRC, Cynthia L. Attwood, expires on April 27, 2025.
Recent Supreme Court Jurisprudence Related to Administrative Agency Authority
At the end of the Supreme Court of the United States’ 2023–2024 term, the Court issued decisions in Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy that significantly altered the landscape associated with administrative actions, including OSHA citations and subsequent litigation.
Loper Bright reversed decades of so-called Chevron deference to federal administrative agencies’ interpretations of ambiguous statutes, and Loper Bright’s reasoning can reasonably be expected to form the basis for challenges to OSHA’s application of Section 5(a)(1) of the OSH Act, also known as the General Duty Clause, among other applications. Jarkesy related to the constitutionality of the process for adjudication of administrative matters by the SEC and is proving to be the basis of a number of challenges to various administrative adjudicative bodies function, including the manner in which OSHA citations are adjudicated. One such example is Judge Sim Lake’s order enjoining the adjudication of citations by OSHRC ALJs.
The DOJ Weighs In on ALJs
In what appears to be an opening for even further challenges, on February 20, 2025, the U.S Department of Justice’s (DOJ) Office of the Solicitor General issued correspondence to Senator Charles E. Grassley (R-IA) concerning multilayer restrictions on the removal of administrative judges.
In that correspondence, Acting Solicitor General Sarah M. Harris stated that “the Department of Justice has concluded that the multiple layers of removal restrictions for administrative law judges (ALJs) in 5 U.S.C. 1202(d) and 7521(a) violate the Constitution, that the Department will no longer defend them in court, and that the Department has taken that position in ongoing litigation” (referencing a matter pending in the Third Circuit Court of Appeals).
The letter continued, stating:
In Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), the Supreme Court determined that granting “multilayer protection from removal” to executive officers “is contrary to Article II’s vesting of the executive power in the President.” Id. at 484. The President may not “be restricted in his ability to remove a principal [executive] officer, who is in turn restricted in his ability to remove an inferior [executive] officer.” Ibid.
A federal statute provides that a federal agency may remove an ALJ “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S.C. 7521(a). Another statute provides that a member of the Board “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. 1202(d). Consistent with the Supreme Court’s decision in Free Enterprise Fund, the Department has determined that those statutory provisions violate Article II by restricting the President’s ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers.
Looking Ahead
Clearly, the new position espoused by the Office of the Solicitor General creates new opportunities for employers facing OSHA citations to challenge the process by which those citations are adjudicated. Most narrowly interpreted, this changed position offers employers an opportunity to challenge the ALJs appointed to hear their cases as being unconstitutional due to the multiple layers of protection afforded them. On a broader scale, this new position might give employers the opportunity to challenge the entirety of the OSH Act, or at least Section 12.
Whatever path employers take, it seems a near certainty that OSHA and employers will face a whole new world in the near future when it comes to their interactions and any issued or pending citations.