How to Summarize Government Work in Five Easy Bullets
It was reported this weekend that all federal employees received an e-mail from the Office of Personnel Management (OPM) telling employees to report “five bullets about what you did last week.” The e-mail also states that failure to do so would be interpreted to mean that the employee is offering their resignation. This is reported as part of the drive to shake up or reform, review, or rebuke the federal workforce. Whatever one speculates about motivation, this will likely be taken by many as a threat, but the e-mail reportedly does not have details about how any of the five points will be evaluated.
With this context, I would politely offer some suggested “bullets” as a former federal employee. My own career included different jobs over time at the U.S. Environmental Protection Agency’s (EPA) Office of Prevention, Pesticides, and Toxic Substances (OPPTS) — now known as the Office of Chemical Safety and Pollution Prevention (OCSPP). I started my federal career as a GS-4 summer intern in the pesticide program and had different positions, eventually leaving government service as a Schedule C political appointee as Assistant Administrator of OPPTS. I left government service in 2001.
With that range of positions in the Office, from a low-level employee in the organization to a much higher one, I offer some suggestions, in bullet form, describing generally the EPA work in words I believe would be applicable to what is “done” by employees in most every position in that Office. Most bullets are probably applicable across other federal programs and offices.
I have pondered how a federal employee can summarize the past or any week in simple bullet form. Since the reported e-mail does not include details about how granular the report should be, the following bullets describe the work of employees in OCSPP, applicable generally from my first job there in 1975 until the present time.
Suggestions for “five bullets”:
I complied fully and faithfully with my oath of office. (“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”)
I performed tasks and assignments to implement the laws and regulations that govern the official duties of my program and agency.
I performed the duties outlined and required by my job classification in my position of record.
I followed the law and regulations regarding confidentiality of data and information sharing with outside parties that are part of my work.
I performed these assignments during work hours at my duty station as outlined in my personnel records (Standard Form 50 — Notification of Personnel Action).
If all those involved in the current attempt to “shake up” the civil service can credibly claim to have “done” these five things in the past week, the entire effort would not only be less controversial but also more successful.
Even Privilege Logs Can Be Privileged Under the Fifth Amendment
On January 28, 2025, the U.S. Court of Appeals for the Ninth Circuit issued a significant ruling reinforcing the Fifth Amendment’s protection against self-incrimination and clarifying the attorney-client privilege in the context of grand jury subpoenas.
In In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025), the Ninth Circuit held that counsel cannot be compelled to provide a privilege log delineating all documents a client previously sent to counsel for the purpose of obtaining legal advice unless and until the court conducts an in camera review of the documents at issue to determine whether the Fifth Amendment right against self-incrimination, as announced in Fisher v. United States, 425 U.S. 391 (1976), applies.[1]
The decision further defines the limits of government subpoenas in criminal investigations and clarifies when privilege logs themselves may be shielded from disclosure. This ruling has far-reaching implications for attorneys, clients, and government investigations, particularly in white-collar, tax fraud and corporate compliance matters.
Fisher v. United States: Fifth Amendment Protections for Document Production
The Ninth Circuit’s ruling relied upon the Supreme Court’s decision in Fisher v. United States, which laid the foundation of the “act of production” doctrine, governing the Fifth Amendment’s protection against self-incrimination in the context of document production.[2]
In Fisher, the Court held that, while the Fifth Amendment protects against compelled testimonial communication, it does not automatically shield pre-existing documents from disclosure. The Court reasoned that documents voluntarily created before a subpoena is issued are not “compelled testimonial” communication because they were not prepared under government coercion.[3]
The Court also clarified that attorney-client privilege does not extend to pre-existing documents that a client could have been forced to produce had they remained in the client’s possession.[4] Although attorney-client privilege protects confidential communications between a client and their lawyer, it does not transform otherwise discoverable records into privileged material.
However, the Supreme Court recognized that the act of producing documents can be “testimonial” if it forces a person to admit the existence, authenticity, or control of the documents.[5] In such cases, the Fifth Amendment may protect against compelled production, and the attorney-client privilege extends that protection to attorneys who possess documents on behalf of their client. Despite this protection, the Court also introduced the “foregone conclusion” exception, which allows the government to compel the production of documents if it can independently prove their existence, authenticity, and the individual’s possession of them.[6]
The Ninth Circuit’s Decision: When Privilege Logs are Protected
In In Re Grand Jury Subpoena, the Ninth Circuit clarified that Fisher extends beyond the production of documents to the content of privilege logs delineating documents withheld on the basis of privilege.[7]
The case arose from a grand jury investigation into an alleged tax evasion scheme. The government subpoenaed an individual, who declined to testify or produce documents, citing the Fifth Amendment. The government then subpoenaed a law firm that had previously represented the individual in connection with tax matters, demanding that the law firm produce documents related to its representation and prepare a privilege log listing any documents the firm withheld from its production. The law firm refused, asserting that production of the privilege log would violate the client’s Fifth Amendment rights. The district court disagreed and ordered the firm to comply.[8]
On appeal, the Ninth Circuit reversed, holding as a matter of first impression that a privilege log is protected under the Fifth Amendment if its production would confirm incriminating details about the existence, authenticity, or control of the documents.[9] The court reasoned that a privilege log can confirm facts the government cannot independently prove, making it potentially self-incriminating and protected under the Fifth Amendment. Because Fisher shields attorneys from producing documents their clients could not be compelled to provide, the court ruled that a privilege log—which would effectively reveal and confirm the existence and client’s custody of those same documents—may also be protected.[10]
The Ninth Circuit also rejected the government’s argument that the privilege log could be compelled under the “foregone conclusion” exception.[11] The government failed to independently establish the existence, authenticity, and control of the documents, meaning that compelling the privilege log would improperly force the client to provide self-incriminating testimony. To ensure courts properly apply Fisher, the Ninth Circuit further held that a district court must conduct an in camera review—a private judicial examination of the withheld documents—before ordering the production of the privilege log.[12]
Practical Implications
By recognizing that privilege logs can be testimonial, the decision strengthens Fifth Amendment protections and ensures that attorneys cannot be compelled to indirectly confirm the existence of incriminating documents.
The government is prevented from using privilege logs as a backdoor method to obtain knowledge of incriminating evidence that it could not otherwise access.
This case reiterates the importance of closely monitoring attorney-client privilege obligations and potential Fifth Amendment privilege issues when responding to a government subpoena.
ENDNOTES
[1] In Re Grand Jury Subpoena, 127 F.4th 139 (9th Cir. 2025).
[2] Id. at 142–43 (citing Fisher v. United States, 425 U.S. 391, 404–05 (1976).
[3] Fisher, 425 U.S. at 409–10.
[4] Id. at 404–05.
[5] Id. at 410–11.
[6] Id. at 411.
[7] 127 F.4th at 143–44.
[8] Id. at 142.
[9] Id. at 144–45.
[10] Id.
[11] Id.
[12] Id. at 145–46.
FROM THE VAULT: Society’s Acceptance of the TCPA Reveals its Waning Appreciation for the Freedom of Speech
Wrote this article back in 2015. More pertinent now, than ever.
Last Friday marked the 73rd anniversary of the oral argument in the U.S. Supreme Court’s landmark free speech decision in Martin v. City of Struthers. In that case our highest court held that an ordinance preventing people from knocking on one another’s doors to distribute unsolicited pamphlets and circulars was unconstitutional—an impermissible prior restraint on free speech that threatened free society itself.
A government—it was held—cannot substitute its judgment for that of its citizenry and issue a wholesale bar on the delivery of constitutionally protected messages. Yes, some folks might be annoyed by having to come to the door on a Sunday morning to greet a neighbor sharing an unwelcome message of faith, or an unsympathetic political position, but that nuisance must be borne—hopefully as a badge of honor—by all those who wish to live in freedom. As the great Justice Black wrote at the time, “[f]reedom to distribute information to every citizen wherever he desires to receive it” is “vital to the preservation of a free society.” Martin v. City of Struthers, 319 US 141 (1943.) Indeed, the “stringent prohibition” against disturbing to one’s neighbors unsolicited pamphlets and circulars was held to “serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”
Flash forward to today. Freedom of speech no longer concerns us, at least not as compared to the freedom not to be bothered—even if ever-so-slightly.
Indeed, we wish to be free from anything we do not admire, or agree with. Free to think only what we want to think and to be free of any who would disagree with us or share an idea we do not immediately relate to. Even the advertisements we view and the news articles we peruse must be tailored to our preferences, as gleaned by the learning computer programs that we happily allow to monitor our every page click, to assure that we are never bothered with something we might not want to see.
Those of us that exalt freedom of self over freedom of expression have the Telephone Consumer Protection Act (“TCPA”) to protect and preserve our most cherished freedom: the freedom to be left alone. Indeed just yesterday the FCC issued an Enforcement Advisory barring political activists from contacting constituents before their words have ever been formed and most observers—if there are any—likely think it’s a good thing. Fewer “robocalls” to bother us.
We know—if we ever paused to think about it—that the TCPA, as applied by the FCC, is the single most expansive restriction on Constitutionally-protected speech that has ever been passed in this country’s history.
Indeed, it is the death of free speech in the modern age. For decades America’s Supreme Court has prudently guarded our freedom of expression, holding it sacred against all forms of restrictive legislation. Even an otherwise righteous law might be struck down if it even risked “chilling” protected speech. But all of that is out the window now, it seems. For here we have the TCPA—itself a millennial born in 1991—wielded by an FCC that relishes in openly restricting and regulating protected speech.
The FCC is not only chilling speech, it is freezing it solid and then smashing it with a sledgehammer. It is applying the TCPA to restrict all speech—from core political speech to innocuous social banter—making use of a person’s cell phone without their express prior permission. It assumes a cell phone user will not want to receive the caller’s message before the words have ever been spoken. It silences the speaker before his message has ever been conveyed. And failing to comply with the statute’s morass of dense and often-times conflicting regulations subjects a speaker to a minimum violation of $500.00 per call.
Yet, as noted above, the TCPA’s reach is terrifying. The FCC’s enforcement advisory yesterday reminded political candidates that they may not make use of their constituent’s cell phones without complying with the TCPA. Yes, even this sort of key, compelling, core, essential political speech is subject to a prior restraint and restriction as to the manner in which it may be made. The FCC—the agency entrusted to assure timely access to wireless carrier services—is shutting down access to the phone lines even for those delivering the most important forms of protected speech unless its regulations are adhered to and obeyed.
Thus, it is the FCC that now tells you what messages you can receive, and which you cannot. How you can speak, and when, and to whom. And if you fail to comply, they can crush you or your institution with massive penalties. Yet this price does not seem so high if it means that political activists won’t eat up your cell phone minutes, does it?
And so it is that the battle over the constitutionality of the TCPA—now being waged before the DC Circuit Court of Appeal—is nothing less than an inter-generational struggle to define (or re-define) what it means to live in a free society.
Expression vs. Privacy. The freedom to speak vs. the freedom not to listen. Pick your side. There is no middle ground here.
Then again, the chances are good that I already know what side you’re on. You would never have seen this article—much less made it through it—if Google’s preference-mining computer applications hadn’t decided that you’d likely agree with me.
10 years ago..
Much love.
New York’s Highest Court Declares Ethics Commission Valid
On Feb. 18, 2025, the New York State Court of Appeals issued a 4-3 decision upholding the constitutionality of the Commission on Ethics and Lobbying in Government (COELIG).1 As was previously detailed in GT Alerts from May 2024 and September 2023, both the Appellate Division, Third Department and the Albany County Supreme Court criticized COELIG’s structure, ultimately concluding that its establishment and scope of authority violated the separation of powers doctrine. The Court of Appeals, however, disagreed, finding that COELIG’s structure and the manner in which its commissioners are appointed is constitutionally permissible. As a result, COELIG may continue its work consistent with statutory provisions enacted in 2022.
In challenging the Commission’s authority following its attempt to enforce a monetary penalty for violating certain rules prohibiting the use of state resources for private purposes, former-Gov. Andrew Cuomo argued that COELIG, as an ethics enforcement body, exercises executive power and, for that reason, the executive must have sufficient authority to appoint and remove commissioners. Gov. Cuomo argued that the Ethics Commission Reform Act of 2022:
1.
“violates constitutional principles of separation of powers because the Commission exercises investigatory and enforcement powers constitutionally entrusted to the Executive, without sufficient oversight by the Governor”;
2.
“violates Article V of the State Constitution because, although the Commission is formally within the Department of State, it functions as a separate department without a head appointed by the Governor with the advice and consent of the Senate”; and
3.
“unconstitutionally displaces the . . . impeachment process, by permitting the Commission to sanction the Governor for putative violations of the Public Officers Law.”
The lower courts embraced these arguments, with the Albany County Supreme Court concluding that COELIG was unsalvageable due to it being “a body that exercises executive authority where the Governor’s role is confined only to nominating a minority of that body,” where the body’s vetting and appointment was being conducted by “private operators (like a bunch of deans).”2 After the Appellate Division, Third Department upheld the lower court, the state again appealed to the Court of Appeals.
The Court of Appeals focused on three factors to ultimately reverse the lower courts and conclude that the 2022 statutory changes creating COELIG are constitutional: (1) the separation of powers doctrine’s flexibility, (2) COELIG’s appointment and removal powers, and (3) the need to promote the public’s trust in government. The majority of the court stated that the separation of powers doctrine does not need to be applied in a rigid fashion; there may be overlap in duties so long as “core duties and responsibilities are retained” with the executive. The court’s majority similarly stated that the constitution is clear that “powers of appointment and removal . . . generally are divided between the Legislature and the Governor.” The governor is not afforded “indefeasible powers to appoint or remove non-constitutional state officers,” and thus that type of exclusive authority for COELIG does not need to rest with the governor.
Finally, the court reasoned that the legislative justification for the Ethics Commission Reform Act of 2022 was to maintain public confidence in government and that this “implicates fundamental constitutional values.” “Given the danger of self-regulation . . . there is an urgent need for the robust, impartial enforcement of the State’s ethics and lobbying laws.” For these reasons, the court concluded that the Act and the commission’s existence “neither unconstitutionally encroaches upon the Executive nor otherwise deviates from constitutional requirements.”
Promptly after the decision’s release, the Commission’s chair and executive director touted the result, stressing that COELIG has and continues to “administer and enforce the state’s ethics and lobbying laws, deliberately, fairly, and with zeal, pursuing its mission to restore New Yorkers’ faith in state government.” To that end, all regulated parties – including lobbyists, clients of lobbyists, and state government officials — should expect COELIG to proceed with business as usual.
1 Cuomo v. COELIG (2025).
2 Cuomo v. COELIG, (Alb. Sup. Ct. 2023).
U.S. Senate Advances KOSMA Bill Targeting Social Media Use by Minors
Varnum Viewpoints:
KOSMA Restrictions: The Kids Off Social Media Act (KOSMA) aims to ban social media for kids under 13 and limit targeted ads for users under 17.
Bipartisan Support & Opposition: While KOSMA has bipartisan backing, critics argue it could infringe on privacy and First Amendment rights.
Business Impact: KOSMA could affect companies targeting minors, requiring compliance with new privacy regulations alongside existing laws like COPPA.
While COPPA 2.0 and KOSA are discussed more frequently when it comes to protecting the privacy of minors online, the U.S. Senate is advancing new legislation aimed at regulating social media use by those 17 and under. In early February, the Senate Committee on Commerce, Science and Transportation voted to advance the Kids Off Social Media Act (KOSMA), bringing it closer to a full Senate vote.
KOSMA Restrictions
KOSMA would prohibit children under 13 from accessing social media. Additionally, social media companies would be prohibited from leveraging algorithms to promote targeted advertising or personalized content to users under 17. Further, schools receiving federal funding would be required to limit the use of social media on their networks. The bill would also grant enforcement authority to the Federal Trade Commission and state attorneys general.
Bipartisan Support & Opposition
KOSMA has received bipartisan support, with advocates such as Senator Brian Schatz (D-HI), who introduced the bill in January, citing the growing mental health crisis amongst minors due to social media use. Supporters argue that while existing laws like COPPA protect children’s data, they do not adequately address the considerations of social media since they predate the platforms. However, much like similar state laws that have come before it, KOSMA is rife with opposition as well. Opponents argue that this type of regulation could erode privacy and impose unconstitutional restrictions on young people’s ability to engage online. Instituting a ban as opposed to mandating appropriate safeguards, opponents argue, infringes on First Amendment rights.
Business Impact
Although KOSMA only applies to “social media platforms,” the definition of this term could be interpreted broadly and potentially include many companies that publish user-generated content within the scope of KOSMA’s restrictions. KOSMA identifies specific types of companies that would be exempt from the definition of social media platforms, such as teleconferencing platforms or news outlets. If KOSMA were to go into effect, companies across the country that are knowingly collecting data from minors or targeting them with personalized content or advertising would have an additional layer of regulatory consideration when assessing their privacy practices pertaining to the processing of data related to minors—on top of existing federal and state laws.
DEEP DIVE: What Does Mr. Trump’s Executive Order Seizing Control of Federal Agencies Really Mean–and is It Constitutional?
So last night Mr. Trump attempted to seize control of more or less the entire federal government. He signed an executive order purporting to bring all independent agencies–including the FCC, FTC, SEC, and perhaps most chillingly the Federal Election Commission–under his individual control.
No other president has done this. Most have avoided even the appearance of interfering in the workings of these agencies for fear of being viewed as wielding inappropriate control over the affairs of agencies designed by Congress to be independent.
But just because this feels like something a dictator would do– and to be clear, it is– does that mean Mr. Trump is actually trying to become one, and, if so, is it unconstitutional?
Maybe. And, maybe.
First, what even is an independent agency?
Independent agencies oversee certain functions of the federal government that require expertise and precision lawmaking that are generally beyond the ability of a Congress composed of–at best generalist lawmakers. These agencies have incredible power over areas of government function that require unique supervision to assure sound policy– like telecommunications, environmental protection, or how elections are conducted.
Independent agencies are unique because they tend to wield both executive and legislative powers. Using the FCC as an example, the Commission may issue rulings interpret or expand the law– such as the recent TCPA revocation ruling the FCC adopted last year. But they may also serve an executive role by bringing enforcement actions and issuing penalties– such as the recent Telnyx order.
And just to make sure everyone understands the difference between legislative and executive functions– legislative power involves MAKING THE LAW. Executive power involves ENFORCING THE LAW.
At the federal level Congress is responsible to MAKE the law. The president is responsible to faithfully ENFORCE the law.
That’s it.
(I look forward to a presidential debate one day–assuming either elections or debates will exist in the future–where the two candidates debate nothing more than who will better faithfully enforce the laws passed by Congress since that is, essentially, their only job.)
Now sometimes making and enforcing the law can blend. For instance when Congress passes a vague enactment–never!–an agency may attempt to interpret the law via an enforcement action. This happens when an agency sues a company for violating the law based on conduct that was never previously deemed to violate that law. We call this “regulation by enforcement” and basically everybody hates it because it is very unfair.
Still regulation by enforcement was quite common during the Obama era– the CFPB loved to regulate by enforcement– and we saw a bit of it during Biden’s presidency, particularly with the FTC “telemarketing sweep” where it decided, for the first time it was a violation of the TSR for engage in lead generation. Eesh.
All right, now that you understand the background what actually happened?
So late yesterday Mr. Trump ordered all independent agencies to report directly to his delegee, the Director of the Office of Management and Budget Russel Vought–who is now instantly one of the most powerful men in the world– so that he, Vought, can dictate their policy, priorities, and budget. As the order states Vought is to: “review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities…”
In other words, the independent agencies are now to serve Mr. Trump and not the American people as a whole.
Cringe.
To be sure, Mr. Trump is casting his order as one intended to hold the agencies accountable to the people. Per his “fact sheet” the agencies must be brought within the President’s control because he was appointed by the people to control them.
Sort of.
Independent agencies used to be non-political. But beginning largely with the Obama administration these agencies have become increasingly political. But the heads of most of these agencies are appointed directly by the president and the president’s party generally control the policies and priorities of the agency.
So, for example, President Trump just appointed Brendan Carr as Chairman of the FCC. Biden appointed Jessica Rosenworcel. Carr will, presumably, guide the Commission consistent with a republican state of mind, just as Rosenworcel guided the Commission with a democratic state of mind. So the agencies are within the control of “the people” because the people decide the president and the president’s party controls the agency and the president picks the head of the agency. And for all past administrations since the 1930s this control and accountability has been deemed sufficient.
But not for Mr. Trump. Not this time.
This time he has decided that these agencies will not move without his direct control. The only way for agencies to be accountable to “the people” is for the agencies to answer directly to him.
Get it?
At best this is ultimate bureaucratic micromanagement. At worst, it is a mechanism by which Mr. Trump can set all of the machinery of government to work to serve his personal agenda– wherever the whims of the day may take him.
Yeah, I know, sounds like a dictator. (For those of you who really like Trump, just imagine Hillary Clinton becoming president in 2028 and having all of these new fun toys to play with Trump left for her.)
So… is it legal?
Maybe. And it depends just how expansive the intended control Mr. Trump is trying to seize really is.
If all Mr. Trump’s order is intended to do is dictate that no federal agency shall take any enforcement action without his approval– or, stated alternatively, that Mr. Trump is plans to dictate (there’s that word again) what enforcement activity the agencies engage in before it is taken–and nothing else, then I think this is likely constitutional.
Executive powers ARE preserved to the president in the Constitution and Congress can’t delegate away executive powers that don’t belong to it. So although this move would still make Trump the most powerful president since Lincoln the constitution permits this sort of thing in my view. So I have no problem with it. (I am a strict adherent to constitutional principles and have no problem with Mr. Trump helping himself to as much as the constitution permits.)
To the extent, however, Mr. Trump is stating he intends to dictate what regulations and rules are implemented by these agencies– i.e. that he intends to seize control of their LEGILSATIVE function– that would be a very serious problem. At that point the legislative and executive function would collapse into a single individual creating, as Madison wrote, “the very definition of tyranny.” Mr. Trump could then write the law to serve his agenda, and then have it enforced it as he saw fit. That would be unconstitutional in my view, and pretty horrifying frankly.
Unfortunately the Order is vague as to its implications and intentions on regulatory matters. The “fact sheet” speaks repeatedly about “executive power” yet suggests agencies must “submit draft regulations”–i.e. LEGISLATIVE actions– to the President. The order itself provides “No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.” So it does seem the big play is in play, but maybe not. The limitation requiring only “executive branch” employees to abide may mean this rule only applies to agency enforcement activities and not to broader rulemaking.
Like I said… unclear.
So where does this leave TCPAWorld?
First, none of this applies to rules the Commission has already passed. The new requirements kick in 60 days from now and all past activity appears to be protected from the need for Mr. Trump’s blessing. This means the FCC’s current TCPA revocation rule–set to go into effect April 11, 2025– is likely to go into effect on that date, although I could see an effort to have the ruling stayed based on this order.
Second, we can expect all FCC enforcement activity to effectively cease pending Mr. Trump’s review. How he plays this will be very interesting. We can imagine a highly weaponized version of the FCC that goes after left-wing interests in social media and broadcast television. Then again we can imagine a neutered FCC that does very little enforcement of anything. What is unclear is where Mr. Trump stands on telemarketing, “robocalls,” or the TCPA more broadly. So it is unclear where in the pantheon of priorities the TCPA and enforcement proceedings against callers and carriers will land.
Third, the courts will need to decide how much power Mr. Trump now wields over the FCC’s legislative functions. I am looking forward to a statement from Chairman Carr on this subject–I’d expect that to be out today. Perhaps it will be business as usual. Or perhaps all FCC rulemaking and policy will now flow through Mr. Trump’s office– meaning Trump will ultimately have to sign off on whether or not the FCC takes action on the R.E.A.C.H. petition everybody is focused on right now.
This last piece is critical to understand.
When something massive and bizarre happens the most immediate impact tends to be paralysis. I’d expect a whole lot of nothing for a few months while people take in the true enormity of what just happened. In the meantime only actions Mr. Trump expressly dictates are likely to gain any traction with the Commission for the time being.
Nevada Bill Would Bestow Personal Jurisdiction On Business Entities Who Simply Register
Earlier this month, Nevada Assemblymember Erica Roth introduced a bill, A.B. 158, to authorize Nevada courts to exercise general personal jurisdiction over entities on the sole basis that the entity:
is organized, registered or qualified to do business pursuant to the laws of this State;
expressly consents to the jurisdiction; or
has sufficient contact with Nevada such that the exercise of general personal jurisdiction does not offend traditional notions of fair play and substantial justice.
The following entities would be covered by the statute: corporations, miscellaneous organizations described in chapter 81 of NRS, limited-liability companies, limited-liability partnerships, limited partnerships, limited-liability limited partnerships, business trusts or municipal corporations created and existing under the laws of this State, any other state, territory or foreign government or the Government of the United States
The last basis is generally consistent with traditional constitutional jurisprudence. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940). California has codified this principle in Section 410.10 of the Code of Civil Procedure (“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”).
The penultimate basis is consistent with and might even be categorized as a subset of the last. How is fair play and substantial justice offended if an entity has consented?
The first basis hearkens to the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Ry. Co., 600 US 122 (2023). In the case, the Supreme Court in a 5-4 decision held that a Pennsylvania statute did not offend the Due Process clause of the United States Constitution. The Pennsylvania statute provided that a company’s registration as a foreign corporation” is deemed “a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over” the corporation. 42 Pa. Cons. Stat. § 5301(a)(2)(i).
If A.B. 158 becomes law, the doors of Nevada’s courts will be thrown open to lawsuits against foreign entities that have registered to do business suits. These lawsuits may be brought even when the plaintiff, the defendant and the dispute occurred outside of Nevada. The case may be a boon to Nevada’s lawyers (Assemblymember Roth is a lawyer), but may have the unintended consequence of discouraging business in Nevada or encouraging creative business structures.
Nevada Bill Introduced to Expand General Jurisdiction Over Businesses
Nevada’s 2025 legislative session has commenced, and at least one bill is already raising concerns. Assembly Bill 158 would expand general jurisdiction in Nevada to an entity that “is organized, registered or qualified to do business pursuant to the laws of this State.” Simply stated, merely registering to do business in Nevada would create general jurisdiction over that entity. This could expose entities to lawsuits in Nevada that have nothing to do with the state. It could also lead to extreme forum shopping because of the potential to sue entities anywhere.
AB 158 appears motivated by the United States Supreme Court’s 2023 decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. ___ (2023). Mallory concluded that a Pennsylvania statute requiring a foreign corporation to consent to general jurisdiction in Pennsylvania as a condition of doing business there did not violate due process. However, Mallory leaves at least one question unanswered. Justice Alito noted in his concurrence that although the statute might not violate due process, it might be unconstitutional under the Commerce Clause. That issue, though, was not before the court in Mallory. Whether a statute such as AB 158, as proposed, is constitutional remains unknown.
Does The Stock Market Believe That California’s Board Diversity Mandates Enhance Firm Value?
In 2018 and 2020, California enacted laws mandating that publicly held corporations (as defined) having their principal executive offices in California have specified minimum numbers of directors who are female and from “underrepresented communities”. Supporters of these mandates contended that these mandates would improve firm value, but what did the stock market think?
University of Pennsylvania School of Law Professor Jonathan Klick tackled this question in a recent paper. He focused on the dates when these laws were found to be unconstitutional by the courts – April 1 2022 (underrepresented communities mandate) and May 13, 2022 (female mandate). Professor Klick’s conclusion?
When California judges found AB 979 and SB 826 to be in conflict with the equal protection clause of the state’s constitution, firms headquartered in California appreciated in value, with non-compliant firms gaining more than compliant firms. Because the court decisions arguably had no repercussions for other changes in corporate law and regulation in the state, which cannot be said with as much confidence for the original adoption of these mandates, these results improve confidence in the conclusion that board diversity mandates do not improve firm value and, perhaps, they even lead investors to lower their valuations.
While Professor Klick’s study tells us how the market reacted, he is careful to note that the study does why the market reacted in the way that it did.
DEI at Stake: Federal Groups Challenge Trump’s Efforts to Curb Inclusivity
The Trump administration is facing a new legal challenge to President Donald Trump’s executive orders (EOs) to eliminate diversity, equity, and inclusion (DEI) programs and initiatives after a group of diversity officers, professors, and restaurant worker advocates filed a lawsuit in a federal court in Maryland on February 3, 2025, alleging the orders are vague and unconstitutional.
Meanwhile, the U.S. Attorney General and the U.S. Office of Personnel Management (OPM) issued memoranda on February 5, 2025, to implement the orders and guide federal agencies on their scope.
Quick Hits
A coalition of DEI advocates has initiated a legal challenge against President Trump’s executive orders to eliminate diversity, equity, and inclusion programs, claiming they are unconstitutional and infringe on free speech rights.
The lawsuit argues that the vague language of the executive orders creates uncertainty that could lead to discriminatory enforcement against those promoting lawful DEI efforts.
The U.S. Office of Personnel Management has provided guidance to federal agencies on interpreting and implementing the recently signed executive orders regarding DEI and DEIA initiatives.
The developments raise questions for employers wishing to implement or continue implementing DEI programs to foster more inclusive workplaces.
DEI Executive Orders
In the first days of President Trump’s second term, he signed two key executive orders to eliminate all “illegal” DEI and diversity, equity, inclusion, and accessibility (DEIA) programs from the federal government and discourage the use of such programs in the private sector: EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and President Trump’s rescission of many of Biden’s executive actions.
EO 14151 directs federal government agencies to end all illegal DEI and DEIA mandates, policies, programs, preferences, and activities in the federal government, including “equity action plans,” “equity action initiatives,” or other programs, grants, or contracts. The EO further eliminates DEI or DEIA performance requirements for employees, contractors, or grantees. The EO further seeks to eliminate “environmental justice” offices, positions, programs, policies, and services across the federal government.
EO 14173 terminates several prior executive actions to promote DEI in the federal government and orders the development of “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The order argued that employers “have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called” DEI or DEIA programs that violate civil rights laws.
Specifically, the EO directs the attorney general to develop recommendations for using federal civil rights laws and other measures to deter DEI in the private sphere and directs federal agencies to “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, and institutions of higher education with endowments over 1 billion dollars.”
DEI Legal Challenge
On February 3, 2025, a coalition of DEI advocates—the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore—filed a lawsuit in the U.S. District Court for the District of Maryland alleging the Trump EOs on DEI and DEIA are vague and unconstitutional.
The lawsuit alleged President Trump’s EOs are unconstitutional, threaten to put their members in the “crosshairs” of federal investigators, and will unlawfully strip federal funding from private entities that wish to continue with DEI efforts.
According to the lawsuit, President Trump’s policies leave their members “with an untenable choice: continue to promote their lawful diversity, equity, inclusion, and accessibility programs, or suppress their speech by ending the programs or policies that the President may consider ‘illegal DEI.’”
Specifically, the suit challenges EO 14173, alleging that it “is designed to, and does, chill free speech on matters of substantial political import,” which is “amplified by its vagueness.” The lawsuit alleges that “[t]he undefined terms leave potential targets with no anchor as to what speech or actions the order encompasses,” the suit alleges. “They also give executive branch officials like the Attorney General carte blanche authority to implement the order discriminatorily.”
The groups raise several constitutional claims, including those based on the First Amendment, the Due Process clause of the Fifth Amendment, and separation of powers, alleging that the orders are vague and suppress their free speech.
The suit names President Trump and several agency heads and acting heads as defendants and is seeking preliminary and permanent injunctions to block the implementation of EO 14151 and EO 14173.
Agency Guidance
On February 5, 2025, OPM Acting Director Charles Ezell issued a memorandum to the heads and acting heads of federal departments and agencies on eliminating DEI and DEIA programs and initiatives, including DEI or DEIA offices, employee resource groups (ERGs), and “special emphasis programs” within the agencies The memo shows how OPM interprets the DEIA orders, providing valuable insights into what the EOs may be interpreted to prohibit for federal contractors, federal money recipients, and even private employers.
The memo directs federal agencies to “eliminate DEIA offices, policies, programs, and practices (including policies, programs, and practices outside of any DEIA offices) that unlawfully discriminate in any employment action” based on “protected characteristics.”
The memo explained that “[u]nlawful discrimination related to DEI includes taking action motivated, in whole or in part, by protected characteristics” and that “a protected characteristic does not need to be the sole or exclusive reason for an agency’s action.” Specifically, the memo stated that unlawful DEI includes practices such as “diverse slate” policies that mandate the composition of hiring panels or candidate pools.
However, the restrictions are not meant to include offices or personnel required by law “to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation,” but “[s]uch functions should be transferred” to other personnel and offices at the agency, the memo stated.
Similarly, the memo says that agencies should “eliminate Special Emphasis Programs that promote DEIA based on protected characteristics in any employment action,” including hiring, promotions, training, and internships or fellowships.
The memo further stated that the orders revoke the authority for ERGs and that agencies should eliminate them to the extent that they promote unlawful discrimination. However, agency heads “retain discretion” to allow programs such as affinity group lunches, mentorship programs, and gatherings “for social and cultural events” so long as such events are not restricted to members or attendance to those of a protected characteristic.
The memo also highlighted the administration’s position that the Biden administration had “conflated” DEI with “longstanding, legally-required” disability accessibility obligations. The memo told agencies to “rescind policies and practices contrary to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973,” except to retain a minimum number of employees to carry out legally required disability and accessibility laws.
DOJ Memo
Also on February 5, 2025, newly confirmed U.S. Attorney General Pamela Bondi issued two memoranda implementing EO 14173. One memo directs the U.S. Department of Justice (DOJ) to review all “consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements” that include “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria.”
The memo further directs the DOJ to update its guidance to affirm “equal treatment under the law means avoiding identity-based considerations in employment, procurement, contracting, or other Department decisions” and to “narrow the use of ‘disparate impact’ theories that effectively require use of race- or sex-based preferences.”
The other memo states the DOJ’s Civil Rights Division “will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The memo further carries out the EO by directing the Civil Rights Division and the Office of Legal Policy to submit a report with recommendations to enforce federal civil rights laws to “encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.”
However, both memos indicated in footnotes that they only apply to programs that “discriminate, exclude, or divide individuals based on race or sex” and “does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
Next Steps
The Trump administration has taken a hardline stance against DEI and DEIA generally, characterizing specific DEI/DEIA practices like race and gender preferences, including such DEI initiatives as diverse slates, as “illegal” or “unlawful discrimination.” These efforts come as the administration is further seeking to define sex as binary and immutable and limit the Supreme Court of the United States’ holding in Bostock v. Clayton County, Georgia, that firing an employee because of the employee’s sexual orientation or transgender status constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. Further, federal lawmakers have reintroduced the “Dismantle DEI Act,” which seeks to codify President Trump’s DEI orders and prevent future administrations from reinstating similar policies.
The OPM memo confirms that federal agencies must eliminate DEI and DEIA programs and offices, which the administration is already dismantling. Further, those prohibitions extend beyond hiring and promotion practices that take DEIA into account to include softer implementation of DEI, such as through ERGs and Special Emphasis Programs. However, the memo acknowledges that agencies still need personnel to maintain compliance with antidiscrimination and harassment laws, as well as to fulfill accommodation obligations for employees with disabilities covered by applicable law.
At the same time, the DEI executive orders are facing a legal challenge and are likely to face more challenges that raise constitutional and other legal questions about the president’s authority to effectuate such changes, particularly the power to discourage and chill DEI with private employers without explicit statutory authorization and in contravention to existing federal law, such as Title VII. A ruling in favor of the plaintiffs could reinforce the importance of the lawfulness of DEI programs and protect them from future executive actions. Conversely, a ruling favoring the executive order could set a precedent for further restrictions on DEI efforts.
Employers may want to monitor these quickly evolving developments and consider reviewing their own DEI and DEIA practices regarding risk tolerances.
Vax On: Fourth Circuit Reinstates Plaintiff’s Religious Bias Suit in COVID Vaccine Mandate Case
On January 7, the United States Court of Appeals for the Fourth Circuit reversed and remanded a district court’s dismissal of a plaintiff’s Title VII religious bias suit—holding the case was sufficient to survive a motion to dismiss at the pleading stage. The matter, Barnett v. Inova Health Care Services, provides key insights and reminders for employers attempting to balance workplace policies with employees’ religious beliefs.
The matter concerned Inova’s COVID-19 vaccine policy. Inova’s policy mandated all employees receive the COVID-19 vaccine unless they had a religious or medical exemption. Barnett, the plaintiff, was a registered nurse and devout Christian. Inova first rolled out its COVID vaccine policy in 2021. At that time, Barnett requested a medical exemption based on lactation concerns but also objected on religious grounds. Inova granted Barnett’s exemption request. According to Barnett, later that year Inova revised its policy and required all employees with an existing vaccine exemption reapply under the new criteria. Barnett claims Inova then required all employees requesting a religious exception complete a questionnaire about their particular religious beliefs applicable to the COVID vaccine. The questionnaire—which Barnett attached to her lawsuit—requested the following information:
1. Describe the nature of your objection to the vaccine.
2. How would complying with the mandate burden your religious exercise?
3. How long have you held the religious belief forming the basis of your objection?
4. As an adult have you received any other vaccines?
5. If you do not religiously object to other vaccines, why do you object to the COVID vaccine?
6. Identify other medications/products you avoid because of your religious beliefs.
When completing the questionnaire, Barnett sought only a religious exemption. Therein, Barnett explained she was a devout Christian and made “life decisions after thoughtful prayer and Biblical guidance.” Barnett further claimed it “would be sinful for her” to take the vaccination having been “instructed by God” to abstain from it. Additionally, Barnett alleged that receiving the vaccine would be “sinning against her body.” Barnett’s stance on the vaccine did not arise directly from scripture but, instead, was “based on her study and understanding of the Bible and personally directed by God.” Inova ultimately denied Barnett’s exemption request—and discharged Barnett after briefly placing her on administrative leave.
According to Barnett, Inova effectively picked “winners and losers” from among those employees requesting an exemption. More particularly, Barnett claimed that Inova chose to exempt employees from more “prominent” or “conventional” religions, while denying Barnett’s request. Barnett claimed to practice a non-denominational form of Christianity.
In her lawsuit, Barnett brought one count of failure to accommodate and two counts of disparate treatment pursuant to Title VII of the Civil Rights Act. Barnett also brought overlapping state-law claims under the Virginia Human Rights Act.
Inova moved to dismiss Barnett’s complaint pursuant to Federal Rule 12 on the basis it failed to state a viable claim for relief. Primarily, Inova argued that Barnett’s concerns about the COVID vaccine were not sincerely religious in nature and, rather, amounted to personal preferences or fears. Inova claimed that Barnett’s reliance on “prayerful consideration” to make her vaccination decision—instead of scriptural authority—meant her choice was “untethered to a particular religious belief.” The district court sided with Inova and dismissed Barnett’s complaint on the pleadings. Barnett appealed that decision to the Fourth Circuit.
On appeal, the Fourth Circuit reversed and remanded the district court’s decision; wholly reinstating Barnett’s lawsuit. In its opinion, the Court of Appeals noted that to qualify for Title VII protection, a religious discrimination plaintiff must show her professed belief is (1) sincerely held and (2) religious in nature. The Fourth Circuit found Barnett met the first prong by alleging to be “a sincere follower of the Christian faith” who made “all life decisions” after “prayer and Biblical guidance.” Sincerity, the Court of Appeals noted, is “almost exclusively a credibility assessment” that can “rarely be determined on summary judgment, let alone a motion to dismiss.”
The Fourth Circuit also found Barnett’s complaint adequately demonstrated her beliefs were religious. In her lawsuit, Barnett alleged that getting the COVID vaccine would be “sinful…against her body”, defy instructions “by God”, and otherwise go against her “study and understanding of the Bible.” According to the Fourth Circuit, these allegations were “sufficient to show that Barnett’s belief is an essential part of a religious faith” and “plausibly connected” to her refusal to receive the COVID vaccine.
The Barnett opinion offers some important lessons. First, Rule 12 motions to dismiss are difficult to win, give plaintiffs a low bar to clear, and should be filed only when strategically appropriate; not as a matter of course. To survive a Rule 12 motion, a complaint need only plead facts that—taken as true—plausibly support a claim. In the context of discrimination suits, the Fourth Circuit noted that allegations offering a “reasonable inference” of discriminatory intent are sufficient. A plaintiff also does not need to establish a prima facie case to survive a Rule 12 motion. As the Fourth Circuit remarked, that is an “evidentiary standard, not a pleading requirement”.
Second, Barnett serves as a reminder that a religious belief need not be rooted in scriptural authority or dogma to form a viable discrimination claim. Similarly, a plaintiff’s theological interpretations need not be shared by their church’s leadership—or deemed valid by their employer—to qualify as religious in nature.
Third, at the pleading stage especially, courts give a wide berth to a plaintiff’s claim that their religious belief is “sincerely held.” As the Barnett court noted, whether a plaintiff’s religious belief is “sincere” is a credibility assessment that can rarely—if ever—be determined on the pleadings.
Fourth and finally, Barnett serves as a reminder that employers should consult experienced counsel before implementing any policies, procedures, or written questionnaires designed to evaluate whether employees may qualify for an exemption from vaccines or other workplace mandates. The plaintiff in Barnett attached Inova’s questionnaire as an exhibit to the publicly-filed complaint. Any business implementing these or other policies should seek advice from well-qualified outside counsel.
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Free Speech is Not a License to Destroy
Many fervent activists are losing touch with the fact that free speech is not a license for violence, harassment, and vandalism. From college campuses and city streets to federal buildings, militant protesters are using force to draw attention to their causes. It’s time for the legal system to stop this reckless behavior.
The unlawful blockade at the Energy Department’s headquarters in Washington, D.C., this past month is a high-profile example of the slide from protected speech to misconduct. Climate Defiance, the climate activist group behind the blockade, has made national headlines over the past year through their deployment of confrontational tactics, such as storming a baseball field attended by members of Congress and rushing a stage during a book launch event featuring Minnesota Senator Amy Klobuchar.
It’s not just at our civic institutions where an “ends justify the means” attitude toward harassment and property destruction is taking hold. In the rioting after a 2020 police shooting in Kenosha, Wisconsin, the New York Times reported that 115 small businesses, many of them minority-owned, were either destroyed or damaged.
Of course, the rogue actions of a few people should not lead to the condemnation of any cause. But for some protesters, unlawful aggression is increasingly the point.
At a gathering of protesters in Portland, Oregon, literature titled Why Break Windows was disseminated, arguing that property destruction was excusable as part of a righteous cause. One recent poll found that 41% of college students believe that violence is justified if it’s used to prevent “hate speech.” This sentiment closely parallels themes conveyed in the 2021 publication How to Blow Up A Pipeline, which promotes sabotage of industrial facilities as a substitute for non-violent protests. After finding its way into college curriculums, the book was adapted into a movie that was described in the FBI Weapons of Mass Destruction Directorate as a vehicle that “could spark eco-terrorism against U.S. energy infrastructure.”
The growing juxtaposition of speech and violence by protest movements is concerning. It’s also a matter where courts may soon weigh in.
Next month, a North Dakota jury will consider whether to hold Greenpeace liable over its role in the destructive protests over the Dakota Access Pipeline. The lawsuit claims that the opposition to the pipeline devolved into property destruction, trespass, assaults on company employees, and other actions that far exceed the bounds of democratic political action. The damage from the protests cost the companies involved in the pipeline an estimated $7.5 billion.
Greenpeace argues that the lawsuit is an “attack on free speech.” But it’s not Greenpeace’s speech or public positioning that the lawsuit questions—it’s the organization’s conduct.
If the case is successful, it could mean bankruptcy for Greenpeace. A win for the plaintiffs would also send a strong signal that while the right to protest is protected by our Constitution, violence and property destruction are not.