What Is the Meaning of a Whistleblower in Healthcare?
Learning how to report Medicare, Medicaid, TRICARE, FEHB, and VA health fraud, and other false claims involving federal funds is crucial when it comes to protecting patients as well as taxpayers and keeping these healthcare programs solvent. Most whistleblowers are ordinary workers who are just doing their job when they come across fraudulent practices of their employer. Acting as a healthcare whistleblower ensures that the U.S. healthcare industry prioritizes patients over profit.
What Is a Whistleblower?
A whistleblower is someone who reports evidence of fraud, waste, abuse, or other wrongdoing within an organization. In healthcare, whistleblowers are often nurses, doctors, medical office staff, pharmaceutical or EHR sales representatives, or other employees of healthcare organizations. To protect these taxpayer-funded health care programs, organizational insiders or whistleblowers (known as relators) can help.
Individuals who wish to report their employer for defrauding one or more of these government healthcare programs can do so by obtaining an experienced qui tam attorney. Under the False Claims Act, healthcare whistleblowers may be eligible to receive a financial reward and certain protection against retaliation when they report their employers for defrauding a government healthcare program. By reporting through a False Claims Act qui tam suit, they may be able to receive from 10% to 30% percent of the government’s total recovery when successful.
What Are the Most Common Types of Healthcare Fraud?
Some of the most common kinds of healthcare fraud include:
Medicare Advantage fraud: Medicare Advantage (Medicare Part C), an insurance program funded by taxpayers, has been enormously popular with seniors but is also subject to being defrauded. One common fraud by healthcare organizations and plans has been to make their patients appear sicker than they are to submit false and inflated claims for payment to the government program. Medicare Advantage insurers have paid settlements for such violations under the False Claims Act thanks to whistleblowers (individuals who reported their employer for defrauding the government).
Kickback schemes: Under the Stark Law, physicians are prohibited from making referrals that are connected to their own financial interests. However, many nursing homes, home healthcare providers, hospitals, provider groups, managed care organizations, pharmacies, drug manufacturers, laboratories, durable medical equipment (DME) providers, and other health care organizations have unlawfully offered financial incentives to induce referrals to obtain new Medicare, Medicaid, TRICARE and VA Health insured patients. Pharmaceutical companies have been held accountable under the False Claims Act when they provide doctors and their staff speaking fees, expensive dinners, sporting event tickets, airfare, and other benefits to physicians to induce them to prescribe their drugs and products. All of these are examples of kickbacks, which are illegal in government healthcare programs and can lead to the payment of damages and civil penalties and a reward for whistleblowers.
Upcoding and billing for services not rendered: Upcoding is fraudulent medical billing in which a government-insured claim is submitted for payment regarding a service that is more expensive than the service that was actually performed. Billing for services not rendered is just that: billing the government for services that were never provided to the patient. Both are illegal under the False Claims Act.
Billing for unnecessary services: Health care fraud is a leading source of False Claims Act qui tam settlements and judgments. These recoveries restore funds to federal programs such as Medicare, Medicaid, and TRICARE, the health care program for service members and their families. But just as important, in many cases, enforcement of the False Claims Act also protects patients from medically unnecessary or potentially harmful actions.
Pharmaceutical fraud: Pharmaceutical companies have unprecedented power in the American economy to set prices for lifesaving drugs and treatments. False Claims Act qui tam suits have involved allegations that drug companies conspired to fix the price of various generic drugs, which led to higher drug prices for federal health care programs. Other schemes involve underpaying rebates under the Medicaid fraud rebate program.
At home healthcare fraud: At home healthcare is a booming industry, with over 3 million Americans receiving skilled nursing or long-term care at home. However, approximately 84% of home health agencies are for-profit corporations, according to the CDC. Home health care is rife with opportunities for fraud as well as patient abuse. Examples include falsely certifying to the government the number of actual hours or care provided, claiming care was provided by qualified staff when it was done by unskilled individuals, billing for unnecessary services, upcoding and billing for services not rendered.
The Department of Justice recovered over $1.67 billion in the last fiscal year that was lost to healthcare fraud. This was in no small part to the actions healthcare whistleblowers who simply wanted to do the right thing. Over the course of the last fiscal year 2024, false claims from managed care providers, hospitals, pharmacies, pharmaceutical companies, laboratories, and physicians accounted for over half of the total federal fraud reported and recovered through qui tam lawsuits. During the same period, the relator shares for the individuals who exposed fraud and false claims by filing qui tam actions exceeded $400 million paid directly to these individuals who stepped up and did the right thing.
Why Is Whistleblowing Important in Healthcare?
Blowing the whistle on healthcare fraud protects patients and prevents the government health care programs (Medicare, Medicaid, FEHB, VA health, and TRICARE) from becoming insolvent. Whistleblowing can help to deter conduct whereby healthcare providers are influenced by improper financial considerations over providing patients the right care at the right time. Other conduct such as those identified here can put patients at risk of harm.
There is simply no reason why taxpayers should pay higher costs to line the pockets of fraudulent health care organizations or providers. Whistleblowers can also help government enforcement agencies to get rid of the bad apples in the health care industry, a goal the entire industry should be able to get behind. Reporting medical fraud allows patients to get the care they deserve and deter future misconduct of organizations and providers that attempt to take advantage of the system. Federally funded healthcare is in place to protect those who need and deserve a safety net for their care, including seniors (who will be all of us one day), U.S. military veterans, U.S. active duty military members and their families, lower-income Americans including children. Those who perpetrate healthcare fraud schemes take advantage of vulnerable populations and also reduce the pool of healthcare funds available for us all. Healthcare organizations and providers should not get to enrich themselves at the expense of patients and taxpayers.
What Is Qui Tam in Healthcare?
Qui tam is a provision of law that allows whistleblowers the opportunity to sue on behalf of the government and collect rewards. Whistleblowers are known as relators under the False Claims Act, which is the most powerful enforcement tool to recover misspent taxpayer funds. Qui tam suits in the healthcare space rest upon allegations involving healthcare organizations that submit or cause another organization to submit false claims to the government in order to wrongfully claim or keep funds under the Medicare, Medicaid, TRICARE, VA Health or FEHB programs. If you have information relating to Medicare Advantage fraud, health care kickback schemes, Stark violations, upcoding or billing for services not rendered, billing for unnecessary services, drug price-fixing or Medicaid best price or rebate violations, home health fraud, or any other kind of health care fraud committed by your employer or a competitor in your space, you may be able to become a qui tam relator and be eligible for a reward.
What Protections Do Healthcare Whistleblowers Receive?
If you report fraudulent practices such as these under the False Claims Act, you can receive protections if your employer retaliates or discriminates against you due to your disclosure. With a federal right of action, your qui tam attorney can sue on your behalf in order to receive:
Reinstatement at prior seniority level
Up to double back pay with interest
Front pay, in cases where reinstatement is not possible
Additional damages
Attorneys fees and costs
However, reporting as soon as possible is advisable in order to ensure that this statute applies. If you are fired before you are able to report fraud to the government, you may not only lose access to valuable information that can contribute to your claim, but you also may not be able to sue for FCA whistleblower protections.
Will Ling Chi Kill The Corporate Transparency Act?
Ling Chi was a slow and torturous method of execution practiced in Imperial China. Better known in English as “death by a thousand cuts”, ling chi took a terribly long time to kill the condemned prisoner.
The Corporate Transparency Act, or CTA, may also be killed by a thousand cuts. Since enactment, the CTA has been challenged in numerous courts around the country, bills have been introduced in Congress to delay implementation of the act, FinCEN has announced suspension of enforcement against U.S. citizens and domestic reporting companies. See Navigating the Changing Landscape of Corporate Transparency Act Compliance. Now, U.S. District Court Judge Robert J. Jonker has granted judgment:
(1) declaring the Reporting Requirements of the CTA a violation of the Fourth Amendment prohibition against unreasonable searches; (2) relieving Plaintiffs and their members of any obligation to comply with the Reporting Requirements of the CTA; and (3) permanently enjoining Defendants from enforcing any of the CTA’s Reporting Requirements against the plaintiffs and their members, and from using or disclosing any information already provided by the plaintiffs and their members under the Reporting Requirements.
Small Bus. Ass’n of Michigan v. Yellen, 2025 WL 704287 (W.D. Mich. Mar. 3, 2025). Judge Jonker’s comments on the Fourth Amendment are worth noting:
The Constitution generally, and the Bill of Rights in particular, are all about protecting citizens from the power of government. Governmental power has a natural tendency to expand and encroach on the freedom and privacy of citizens. That is true even when the government is pursuing goals—like crime investigation and prevention—that are worthy and important. The Fourth Amendment is one of the key limits on government power that protects the legitimate privacy interests of citizens from unreasonable government intrusion. In Orwell’s 1984, “Big Brother” had omnipresent telescreens everywhere—including every citizen’s living room—that made sure nothing beyond a smuggled, hand-written diary was truly private. The CTA doesn’t go that far, to be sure, but it’s a step in that direction. It compels citizens to disclose private information they are not required to disclose anywhere else just so the government can sit on a massive database to satisfy future law enforcement requests. It does so at a cost of billions of dollars to the citizens least likely to afford it. It amounts to an unreasonable search prohibited by the Fourth Amendment.
Unclaimed Property Laws and the Health Industry: Square Peg, Round Hole
Likely due to the tremendous number of healthcare mergers, acquisitions, and private equity deals that have been taking place, the industry has recently been the target of multistate unclaimed property audits. This increased scrutiny has highlighted many of the complexities and tensions that exist in this space. At almost every stage of the process, healthcare industry holders are pressured by state unclaimed property auditors and administrators to fit a square peg in a round hole – something both they and their advocates should continue to vigorously push back against.
Determining whether any “property” exists to report in the first instance can be a daunting task in an industry where multiple parties are involved in a single patient transaction that is documented by complex business arrangements between sophisticated parties, which are updated and accounted for on a rolling basis. Unclaimed property audits are conducted in a vacuum of one single holder and use standard document requests that were developed to apply to all businesses, creating unrealistic record retention and management expectations that almost never neatly align with healthcare industry laws or practices.
Making matters worse, unclaimed property auditors and voluntary disclosure agreement (VDA) administrators frequently do not have a detailed understanding of the complex healthcare privacy, billing, and payment practices, yet these practices materially impact how providers manage unclaimed property and when they report it. Getting them up to speed on these laws, practices, and procedures can be very time-consuming. For example, providers or their advisors may need to explain to auditors what HIPAA is or what prompt pay laws are. Many of the payments in this space are managed or funded by the US government, resulting in federal preemption of a state’s ability to demand at least some portion of the funds a review is likely to identify. And while some of the larger healthcare providers and payors have detailed records for more recent periods, the degree of detail requested by the auditors is frequently unreasonable (in both time and scope) and can result in sampling, extrapolation, and grossly overstated audit results.
This article explores some of the unclaimed property law tensions and legal risks that exist for healthcare providers of all sizes.
COMMON PROPERTY TYPES
Some common property types at risk of exposure in the healthcare industry include patient credit balances, accounts payable checks, payroll checks, refund checks, and voided checks. These risk areas can result in unclaimed credit balances for varying reasons, such as overpayment and payment of the same bill by multiple sources. Healthcare providers and insurance companies periodically engage in settlement audits to resolve open items. However, a healthcare provider may make adjustments and write-offs to accounts receivable arising from a settlement, thus creating tension with the statutory anti-limitation provisions of unclaimed property law.
FEDERAL PREEMPTION
Although all 50 states and the District of Columbia have enacted unclaimed property laws, federal laws may preempt their ability to exert jurisdiction and regulate certain (otherwise) unclaimed property. Federal preemption can often be raised as a defense in the healthcare industry where federal law robustly governs the space (such as Medicare) or conflicts with state unclaimed property laws. For example, these defenses can be raised when federal law either establishes or abrogates property rights, claim obligations, and periods of limitation.
PROMPT PAY STATUTES AND RECOUPMENT
Prompt pay statutes are generally designed to ensure that physicians and medical providers are recovering their payment claims with insurance providers in a timely manner. Most states contain laws that typically include (1) a period in which claims are required to be processed, (2) types of claims covered, and (3) penalties for failure to comply. The statutes’ deadlines for making payments typically range from 15 to 60 days, depending on the state. Moreover, recoupment provisions in many states provide that refunds of paid claims by insurers are barred after the expiration of a specific period of time from the date of payment. Under these provisions, insurers cannot avoid this requirement via their contracts with the provider. Individual state statutes will render different results related to the coordination of benefits for federally funded plans such that there is either no recoupment period or a longer one. The finer details of prompt pay and recoupment statutes are important for states and their auditors to understand and, if not properly accounted for in an audit or VDA, can lead to vastly overstated results.
BUSINESS-TO-BUSINESS EXEMPTION
Some states exempt business-to-business payments and/or credit due from unclaimed property reporting. The scope of these exemptions can vary widely and sometimes contain traps for the unwary, requiring careful review before they are broadly implemented into a provider’s reporting process. In many states, there are viable defenses to unclaimed property audit assessments seeking payor funds held by a provider.
REVENUE RECOGNITION BASED ON CONTRACT
Contractual allowance adjustments and accounts receivable credit reclasses in the contractual allowance account can give the appearance of unclaimed property if not resolved timely, accurately, and with the appropriate supporting documentation. Examples of accounts that can give rise to potential unclaimed property credits include expired or outdated contracts between a healthcare provider and insurance company, unaccounted contract revisions or adjustments, and others that are unique to the healthcare industry to account for the complex flow of funds between patient, provider, and payor.
M&A DEALS
Unclaimed property results can vary significantly based on the terms and type of deal. It is best practice for unclaimed property counsel to be involved in healthcare deals to ensure any potential unclaimed property is accounted for. The typical failure to maintain records in a searchable manner post-acquisition may result in either (1) false positives during the next audit in an address review or (2) a windfall for the state of formation if an estimation is performed. Reviewing key provisions in the agreement when conducting a deal can identify complications that may arise and ensure the parties proactively account for any risk and maintain the records needed.
False Claims Acts
Many state False Claims Acts (FCAs) permit a private party (a relator) with knowledge of past or present underpayments to the government to bring a sealed lawsuit on its behalf. When these suits are successful, the relators receive 15% to 30% of any judgment or settlement recovered, which includes treble damages of the alleged unclaimed property liability and interest, per occurrence penalties, and even costs and attorneys’ fees.
In California ex rel. Nguyen v. U.S. Healthworks, Inc., the plaintiff brought a suit alleging that the failure to report credits as potential overpayments violated California unclaimed property law and the state FCA. The California attorney general filed an unclaimed property complaint in intervention against the healthcare provider, identifying the ongoing failure to comply with state unclaimed property law as a key factor in the attorney general’s decision to pursue the case under California’s FCA before agreeing to settle for $7.7 million in 2023.
Other states, including New York, are actively involved in aggressively enforcing their unclaimed property laws as punitively as possible through state FCAs. The U.S. Healthworks case is a cautionary tale for healthcare providers that have not robustly analyzed their unclaimed property law compliance practices.
Congress Extends Emergency Funding Fix for CFTC Whistleblower Program
The Continuing Resolution bill passed by Congress on March 14 includes an extension of the emergency funding measure saving the Commodity Futures Trading Commission (CFTC) Whistleblower Program from financial collapse.
“This step by Congress has saved the CFTC Whistleblower Program, which was in danger of becoming a victim of its own success,” says Kohn, Kohn & Colapinto (KKC) founding partner Stephen M. Kohn. “42% of the CFTC’s enforcement actions involve whistleblowers, thus the whistleblower program is absolutely crucial to the ability of the CFTC to carry out its mission of rooting out fraud, manipulation and abuse in the commodities markets.”
“While this action by Congress is an important step, longer-term funding solutions are needed to ensure the CFTC Whistleblower Program can continue to thrive moving forward,” Kohn, who also serves as Chairman of the Board of National Whistleblower Center, added. “The cap placed on the CFTC Whistleblower Program’s fund is not compatible with the growth of the program over the years and must be addressed.”
A Congressionally-set cap on the amount of monies which can be placed in the fund used to finance the CFTC Whistleblower Program has meant that large award payments could completely deplete the fund. Under the cap, only $100 million is allowed to be placed in the fund, which is entirely financed by sanctions collected thanks to the whistleblower program. Back in 2021, CFTC officials warned members of Congress that the program had started delaying the processing of whistleblower cases due to a lack of funds and that the CFTC Office of the Whistleblower might be forced to furlough staff.
Later in 2021, Congress passed emergency legislation creating a separate fund for the Whistleblower Office, meaning that even if the award fund was depleted, the program could continue to function in working alongside whistleblowers to root out fraud and corruption.
This emergency measure expired at the end of the 2024 fiscal year but a measure passed in January extended it through March 14, 2025. Now, this emergency fix has been extended through September 30, 2025.
Saving the CFTC Whistleblower Program from financial collapse has been a major campaign of the National Whistleblower Center. It has set up an Action Alert allowing individuals to write to members of Congress urging them to pass a long-term solution.
Geoff Schweller also contributed to this article.
Make Protecting Your UK and EU Product Packaging and Labels Your New Year’s IP Resolution. Part 2: Combatting Dupes and Copycats in the United Kingdom
Everybody knows that trade marks are necessary to protect a brand’s logo and name, and a lot of people know that registered designs are a powerful tool in stopping counterfeit goods, but did you know these rights can also be used to help protect against unwanted “dupes” (also known as “copycat” or “lookalike” products)? Dupes/copycats deliberately mimic a successful product, and they imitate the look and feel to unfairly benefit from the goodwill attached to the product through the “halo effect,” i.e., the impression that if it looks like the original, it must be as good.
Dupes in the United Kingdom
However, there have been some useful cases over the last few years, including a very beneficial UK Court of Appeal case handed down in January this year, and each contains helpful guidance for brands looking to use registered designs and trade marks to protect against dupes and lookalikes:
There is ever a lament from brands that there are not enough legal tools in the United Kingdom to prevent copycats from using a hero product’s unique look, feel or effect to maximise their own sales. We can see this through a long line of caselaw where a passing off claim (an English law tort where a trader misrepresents its goods or services as being those of another) has failed to meet the high threshold of “misrepresentation,” i.e., consumers must actually be deceived and believe the goods to be those of the claimant.
In January 2025, Thatchers won its appeal against the decision in January 2024, and it successfully established that supermarket Aldi infringed its trade marks by selling a copycat cider with similar labelling to Thatchers’ cloudy lemon cider packaging (see our articles here and here).
Thatcher’s Trade MarkNote: The UK Court of Appeal found the judge had erred by not considering the three-dimensional use of the Thatchers’ mark as printed on the packaging and can.
Aldi’s Product
Key points to note:
The UK Court of Appeal found that the Aldi cider “rode on the coat-tails” of Thatchers’ cider, that Aldi purposefully intended to remind consumers of Thatchers’ trade mark, and that it was “entirely possible” to convey that a drink is lemon-flavoured without such a close resemblance; therefore, the similarity “cannot be coincidental.”
Aldi benefited by achieving significant sales with no promotional spending as a result of the “transfer of image,” which created an “unfair advantage.”
The Thatchers’ mark was found to have reputation despite a relatively short period of sales.
In March 2024, Lidl succeeded in upholding the decision that Tesco had infringed its trade marks (see our article here). Although this case it not a “dupe” or copycat case per se, it shows the power of clever trade mark registration strategies, as well as the importance of having trade mark registrations for key elements of branding.
Lidl’s Trade Marks
Tesco’s Sign
Key points to note:
The court found that a substantial number of customers would be misled into thinking that Tesco’s clubcard scheme and prices were a price-match to Lidl for equivalent goods.
In February 2024, the UK Court of Appeal upheld the decision that Aldi had infringed Marks & Spencer’s (M&S’s) registered designs, as their gin bottles did not create a different overall impression on the informed user (see our articles here and here).
M&S’s Design
Aldi’s Product
Key points to note:
The similarities between the designs were found to be “striking.”
A wide design freedom was found, which further highlighted the similarity between the products.
In 2021, William Grant & Sons, maker of Hendrick’s Gin, succeeded in its claim in Scotland for interim relief against the sale of Lidl’s Hampstead Gin. The claim was successful because they were able to show reputation in the Hendrick’s Gin trade mark and that the Hampstead product took unfair advantage of, or was damaging to, the distinctive character or the repute of the Hendrick’s Gin trade mark.
Key points to note:
The claim failed on passing off and a pure infringement claim.
Similarity was found in the dark, apothecary-style bottle, as well as the diamond label shape.
The claim was ultimately successful because of the reputation in the Hendrick’s Gin bottle, so there was no need to demonstrate customer confusion.
Key Learning for Brands
Designs
For new products, register a design wherever possible, as it is easier to succeed in a claim for infringement, and there is also no initial validity review of designs by the UKIntellectual Property Office.
There is no need to prove confusion or reputation for design infringement claims; a claimant only needs to show the same overall impression on the informed user. This can mean less legal spend on obtaining “confusion” and “reputation” evidence.
You can file a registered design in the United Kingdom (and the European Union, if relevant) with a deferred publication date if the release is not immediate to protect the design as soon as possible.
Designs can protect the product’s appearance in whole or in part for unique stylistic elements, such as lines, contours, colours, shapes, texture and materials (e.g., sole patterns on footwear).
Trade Marks
When developing a product or considering protection for a product already on the market, think about what trade marks could be filed to protect the look/feel of the label or product. In particular, consider the following:
The shapes and colours of the product and label.
Filing simplistic versions of the packaging or labelling design, e.g., filing a label without the brand name if certain elements are unique enough.
Filing monochrome versions of the marks, as well as colour marks if the pattern/imagery is distinctive.
Any stylistic positioning elements that could be filed as position marks (although careful drafting is necessary to make sure the trade mark is sufficiently clear to be enforceable (see Thom Browne v Adidas)).
If the overall shape of the product could be a 3D mark.
If it is a product with reputation, think carefully about what makes the product unique and how it stands out in the market.
A word of caution on trade marks: you must have an intention to use or already use the trade marks in some way and cannot only file the trade marks as a legal weapon.
We have not touched on copyright here, but if design and trade mark claims are not available, a claim under copyright could be another avenue to explore.
Part 1 of this series on protecting unique packaging designs in the European Union can be found here.
FinCEN Issues Geographic Targeting Order to Require Certain Money Services Businesses to File CTRs for Smaller Transactions
On 11 March 2025, the Financial Crimes Enforcement Network (FinCEN) issued a Geographic Targeting Order (GTO) to require money services businesses (MSBs) located in specified counties of California and Texas to file currency transaction reports (CTRs) for currency transactions of more than US$200 but not more than US$10,000. The regular CTR filing requirement for transactions of more than US$10,000 remains in place, but the GTO effectively reduces the threshold for such filings.
FinCEN’s authority to issue GTOs is provided by the Bank Secrecy Act (BSA), which authorizes FinCEN to order additional recordkeeping and reporting requirements upon finding reasonable grounds to conclude that such requirements are necessary to carry out the purposes of the BSA or to prevent evasions thereof. This GTO becomes effective 14 April 2025 and will expire 180 days thereafter unless it is renewed.
This 180-day effective period is consistent with the BSA, but, as a practical matter, FinCEN tends to renew its GTOs and often expands them to cover other geographies. According to FinCEN, the new GTO is in furtherance of Treasury’s efforts to combat illicit finance by drug cartels and other illicit actors along the southwest border of the US. FinCEN can renew this GTO if it determines that to be appropriate, and/or could amend it to cover additional states, such as Arizona or New Mexico that also share a border with Mexico.
Except for the reduced dollar threshold, the “Covered Transactions” for this GTO are the same as for regular CTRs: “each deposit, withdrawal, exchange of currency or other payment or transfer, by, through or to” the covered financial institution, in this case MSBs located in the Covered Geographic Area. For all CTR purposes, “currency” means cash: the coin and paper money of the US or of any other country that is designated as legal tender.
The “Covered Geographic Area” for this GTO include 30 enumerated zip codes, including at least parts of Imperial and San Diego County of California, and Cameron, El Paso, Hidalgo, Maverick and Webb Counties of Texas. If an MSB is located in any of these zip codes and engages in Covered Transactions in any of those places, it is subject to this GTO.
Before concluding a Covered Transaction, the MSB must perform the identification requirements regarding the individual presenting the transaction and, if applicable, any individual or entity on behalf of which the transaction is to be effected, following the rules for regular CTR filings.
The GTO does not alter the US$2,000 threshold for suspicious activity report (SAR) filings, but the GTO encourages MSBs to make voluntary SAR filings to report transactions conducted to evade the US$200 reporting threshold.
Each MSB that is subject to this GTO is responsible for compliance by each of its officers, directors, employees, and agents. The GTO also directs each covered MSB to transmit the GTO to its agents that are located in the Covered Geographic Area.
New U.S. Regulations on Vehicle Connectivity and Automated Driving Systems: Compliance Starts Now!
Starting today, March 17, 2025, new U.S. regulations impose sweeping restrictions on the importation and sale of connected vehicles (CV) and related components with ties to China and Russia. Issued by the Bureau of Industry and Security (BIS), the Connected Vehicles Rule (CV Rule) aims to curb potential national security threats posed by foreign-made vehicle connectivity and automated driving systems. These restrictions, which will be phased in over the coming years, require businesses to conduct rigorous supply chain assessments and file compliance declarations. Importers and manufacturers must act now to ensure compliance and avoid steep penalties for violations.
Key components of the CV Rule are as follows:
Controls. The CV Rule focuses on two main categories: vehicle connectivity systems (VCS) and automated driving systems (ADS). VCS includes hardware and software that “directly enables” the transmission, reception, or processing of radio frequencies over 450 MHz. ADS encompasses hardware and software capable of performing the entire dynamic driving task for a connected vehicle.
Scope. Consistent with the Notice of Proposed Rulemaking published in September 2024 (NPRM), the CV Rule prohibits the import or sale of CVs and VCS hardware or ADS with a defined nexus, significant connection, or association to the People’s Republic of China (PRC) and Russia. This means the CV, VCS, or ADS was either (i) manufactured in the PRC or Russia, (ii) developed by companies based in the PRC or Russia, or (iii) supplied by entities with substantial ties to the PRC or Russia.
Implementation. Starting with Model Year (MY) 2027 for covered software and MY 2030 for VCS hardware, the CV Rule will be gradually implemented over the next several years to minimize supply chain disruptions. Specifically, the CV Rule will not apply to legacy software and components designed, developed, manufactured, or supplied in or from the PRC or Russia prior to March 17, 2026.
Declarations. Importers should conduct a supply chain assessment to document the origin of all hardware and software used in a connected vehicle. This supply chain assessment will allow for the identification and mitigation of risks while forming the basis for the BIS Declarations of Conformity (Declarations). BIS will require Declarations from importers and CV manufactures to certify compliance annually prior to importing or selling CVs with VCS hardware or covered software in the US.
Declarations may be filed using forms to be made available on the BIS website and should include:
Confirmation that the VCS hardware or covered software is not designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia.
The importer has conducted due diligence to inform the Declaration and maintains supporting documents.
The importer has taken all possible measures to ensure all information is furnished to the BIS upon request.
The importer will submit material changes to Declarations within 60 days.
The importer will maintain records for 10-years.
Authorization. The BIS will issue general authorizations for parties to engage in otherwise prohibited transactions, provided the party meets certain conditions. The general authorizations and conditions will be published on the BIS website. Expected general authorizations include exemptions for (i) small businesses, (ii) CVs not used on public roads, (iv) CVs imported for display, testing, or research, and (iv) CVs imported for repair. Specific authorizations may also be provided by the BIS following an application and approval process. These specific authorizations may be granted for higher-risk transactions, where importers and manufacturers apply to the BIS for permission to engage in transactions that would otherwise be prohibited.
Advisory Opinions. Importers and manufacturers that remain unsure whether a transaction is subject to a prohibition or requirement under the CV Rule may request an Advisory Opinion from the BIS’s Office of Information and Communications Technology and Services.
Penalties. Persons who violate, attempt to violate, conspire to violate, or knowingly cause a violation of the CV Rule may be subjected to civil and/or criminal penalties under the International Emergency Economic Powers Act. The maximum civil penalty is currently $368,136 per violation with the maximum criminal penalty of $1,000,000. If the BIS has reason to believe a violation has occurred, then BIS will inform the alleged violator with a written notice of the intent to impose a penalty. Alleged violators will then have 30 days to respond in writing and provide additional information to contest the penalty.
For importers of CVs, VCS, or ADS planning and supply chain due diligence will be critical in adapting to this new final rule.
Court: Investment Adviser Has No Duty To Warn Non-Clients
According to the Court of Appeal:
An imposter posing as investment advisor Daniel Corey Payne of Lifetime Financial, Inc. (Lifetime) stole more than $300,000 from Mark Frank Harding. Before this occurred, Lifetime had received several inquiries from other individuals about a potential imposter who was posing as Payne and asking for funds; Lifetime did not post a warning about the imposter on its website or take any other significant action.
Harding v. Lifetime Financial Inc., 2025 WL 815697 (Cal. Ct. App. Mar. 14, 2025). In an effort to recover his life savings, Harding sued Lifetime alleging “if Lifetime and LPI [a related advisory firm] had posted a warning on their website about the imposter, or if they had reported the matter to FINRA, Harding would have realized the person he was communicating with was an imposter, and he would not have lost his life savings”.
Harding’s efforts failed to meet with success in the trial court which granted summary judgment for the defendants. In affirming the trial court, the Court of Appeal noted that as a general matter there is no duty to protect others from the conduct of others. More specifically, it could find “no statutory or case authority holding that an investment advisor owes a duty to nonclients to post a notice on its website or notify law enforcement that someone has been impersonating the investment advisor.”
Harding argued that FINRA Rule 4530 created a duty to warn. That rule requires FINRA members to “promptly report to FINRA . . . after the member knows or should have known . . . [that] [¶] (1) the member or an associated person of the member: [¶] . . . [¶] (B) is the subject of any written customer complaint involving allegations of theft or misappropriation of funds or securities or of forgery.” The Court of Appeal disagreed, finding:
in order for Defendants to have had a reporting duty under this rule, they would have had to receive a written complaint which alleged Defendants engaged in theft, misappropriation of funds or securities, or forgery, and that written complaint would have had to come from a person whom Defendants engaged or sought to engage in security activities. That is not what happened here.
Harding illustrates how difficult it can be to detect an impersonation. The imposter initially contacted the plaintiff by phone and the plaintiff spoke with the imposter several times thereafter. The imposter used the name of a representative at Lifetime and had an email address that included “lifetime” as part of the address. The plaintiff researched Lifetime online and verified Lifetime’s CRD number and Lifetime’s registration.
Not Much of a Thank You: TRICARE Contractor Resolves $11M False Claims Act Liability for Known Cybersecurity Violations
February 2025 saw an important False Claims Act settlement involving allegations of known cybersecurity failures by Health Net Federal Services Inc. (HNFS), a government contractor that provides TRICARE healthcare management services to active duty military members and their families. HNFS as well as its parent corporation Centene agreed to pay just over $11 million to resolve alleged false claims submitted to the U.S. Department of Defense.
While American values dictate that we thank service members for their role in protecting our freedoms, this government contractor instead chose to submit false claims in order to keep up their deal with the Department of Defense. Ultimately, it was taxpayers who footed the bill for fraud and false claims with government contractors. Taxpayers should never pay for shoddy services, especially not when it comes to healthcare and protecting personal and sensitive data relating to military members and their families.
The Allegations Against Health Net Federal Services, LLC and Centene Corporation
According to the DOJ, parent corporation Centene and its subsidiary Health Net Federal Services (HNFS) failed to meet these minimum cybersecurity protocols between the period of 2015 and 2018 while providing data management services to the U.S. Department of Defense through its administration of TRICARE. HNFS may have exposed U.S. service members’ personal and health data, as well as that of their families, due to failing to scan for known vulnerabilities and patching known security flaws. The networks and systems maintained by HNFS during this three year period were reported by third party security auditors as well as the company’s own internal audit department for being inadequate in terms of:
Asset management
Access controls
Flawed configuration settings
Weak firewalls or lack of firewalls in use
End-of-life hardware and software in place
Lack of patch management
Vulnerability scanning
Shoddy password policies
HFNS not only allegedly failed to install updates from vendors that would have countered known threats; they also allegedly falsely certified compliance with annual reports to DHA in order to keep their government contract with TRICARE. In order to resolve these allegations, the company Centene Corporation, which acquired all shares of HFNS as well as its liabilities, has agreed to pay $11,253,400. The matter was resolved in collaboration with the U.S. Department of Justice Civil Division’s Commercial Litigation Branch (Fraud Section) and the U.S. Attorney’s Office for the Eastern District of California, as well as with assistance from the DoD Office of Inspector General, the DCIS, Cyber Field Office Western Region, the Inspector General’s Office of Audits, Cyberspace Operations Directorate, and the DoD’s Defense Contract Management Agency, Defense Industrial Base Cybersecurity Assessment Center.
What Is TRICARE?
TRICARE is a federal health insurance program administered by the U.S. Department of Defense and its contracts. TRICARE provides healthcare coverage to qualifying members of the U.S. military and their families, including:
Active duty service members and their families
National Guard and Reserve members and families
Medal of Honor recipients and their families
Survivors
Children
Former spouses
TRICARE is similar to Medicare in that it is a primary health insurance provider funded by taxpayer dollars and administered by a federal agency. While Medicare covers older Americans ages 65 and up, TRICARE provides medical, dental, and pharmacy coverage for U.S. military members, veterans, and family members. Because of this, TRICARE also maintains personal and sensitive data for military members, including some confidential location information for active duty personnel. Like all health data, TRICARE records include HIPAA-protected information and other confidential information, which can be exposed to data breaches by criminal hackers and contractors who do not take their cybersecurity obligations seriously. TRICARE breaches are especially troubling because they can lead to the unlawful dissemination of protected information that compromises individual health privacy and potentially national security.
Federal Healthcare Programs Are Vulnerable to Cybersecurity Breaches
Acting U.S. Attorney Michele Beckwith for the Eastern District of California spoke about the HNFS settlement, saying “Safeguarding sensitive government information, particularly when it relates to the health and well-being of millions of service members and their families, is of paramount importance. When HNFS failed to uphold its cybersecurity obligations, it didn’t just breach its contract with the government, it breached its duty to the people who sacrifice so much in defense of our nation.”
Both healthcare and defense spending for government contracts are two of the most at-risk areas for fraud, waste, and abuse. Taxpayers lose billions of dollars every year to government contractors and healthcare organizations that take advantage of federal healthcare programs like Medicare, Medicaid, and TRICARE, with an estimated 10% of program expenses at risk. Meanwhile, the Government Accountability Office reports that the U.S. Department of Defense is particularly vulnerable to false or fraudulent claims involving overbilling, billing for work never performed or services not rendered to beneficiaries, fraudulent bid submissions, non-competitive bids, the provisions of substandard parts or services, and the failure to disclose data breaches and other cybersecurity risks.
How Whistleblowers Can Protect Americans Through the False Claims Act
Under the U.S. Department of Justice’s Civil Cyber Fraud Initiative, private companies that contract with the federal government are obligated to uphold certain minimum cybersecurity standards. When they fail to do so, or falsely certify compliance with cybersecurity requirements, they can be held accountable under the False Claims Act for treble damages and penalties to the federal government. Through a qui tam lawsuit, whistleblowers who report on these kinds of violations can also receive a percentage of the government’s total recovery. These percentages can range from 10% to 30% of the final settlement. The False Claims Act imposes treble damages upon violators, as well as individual penalties for each false claims of up to $13,946 to $27,894 per violation. The law also allows whistleblowers (known as relators) who meet certain eligibility requirements and are the first to report cybersecurity fraud, government contractor fraud including DOD fraud, or healthcare fraud a reward for their inside information.
Whistleblowers can come from all walks of life and may include current or former employees of any potential defendant such as employees of government contractors, health care entities, or any regulated company, non-employees (examiners, competitors, clients, customers, auditors, reviewers, consultants, industry experts), anyone with evidence and knowledge of fraud involving government money. As long as you come forward willingly and in a timely manner you may be able to bring a qui tam case with the help of a qui tam lawyer and recover a reward. There are also additional protections for employees, including cybersecurity professionals, who speak up. These may include:
The option to initially report anonymously through a qui tam law firm
A federal right of action to sue for reinstatement if you are fired from your company as a result of your protected disclosure
Up to double back pay with interest from the period during which you were demoted, suspended, or let go
Possible front pay, in cases where reinstatement is not possible
Additional damages and attorneys’ fees.
5-Year Prison Term for Counterfeiting Burberry in China
On March 13, 2025, the Shanghai Procuratorate Third Branch announced that the Shanghai Third Intermediate People’s Court upheld a 5-year prison term and 2 million RMB fine for the crime of counterfeiting registered trademarks belonging to Burberry. In 2021, the defendant, Gong XX, resumed operating an online store “XXX Overseas Shopping” and started selling counterfeit Burberry brand clothing. The cost of making a single piece of clothing involved in the case ranged from 500 to 700 RMB, but the selling price could reach 3,500 RMB per piece. From 2021 to 2023, Gong sold the clothing involved in the case in his own online store and WeChat Moments, with sales reaching more than 4 million RMB.
Counterfeit clothing involved.
In February 2023, the Jing’an Temple Police Station received a report from the public that they spent thousands of RMB to buy a brand-name windbreaker from the “XXX Overseas Shopping” online store, but found that it was a fake. Based on the evidence, the public security organs quickly launched an investigation and arrested the suspect Gong. Afterwards, the Jing’an District Procuratorate indicted Gong at the Jing’an District Court in accordance with the law on the grounds that Gong committed the crime of counterfeiting registered trademarks. In November, the court made a first-instance judgment, sentencing Gong to five years in prison for the crime of counterfeiting registered trademarks and a fine of RMB 2 million. Gong appealed to the Shanghai Third Intermediate People’s Court. In February 2024, the court ruled on the second instance of the counterfeit registered trademark case handled by the Third Branch, dismissing Gong’s appeal and upholding the original judgment.
On February 23, 2024, the Shanghai No. 3 Intermediate People’s Court held a second-instance trial of the case, and the prosecutor in charge of the Third Branch attended the court.
During the trial, Gong argued that his “Knight” graphic was different from the mark registered by Burberry. However, the prosecutor pointed out that identical trademarks include not only “completely identical” but also “basically indistinguishable.” The Burberry trademark has been widely used and promoted for a long time, and has a high market visibility and strong distinctiveness. Comparing Gong’s counterfeit logo with the registered trademark of the right holder, there is basically no difference in the overall shape and arrangement of elements, with only slight differences in individual lines, which makes it impossible for ordinary consumers to distinguish them in appearance, thus misleading the public. Therefore, the “Knight” graphic trademark used by Gong can be identified as “a trademark identical to the registered trademark”.
During the trial, Gong also argued that the “BURBERRY BLACK LABEL” text trademark has not been used in China for several years, and the series of clothing is only sold in a certain country and has been discontinued. Based on this, he believed that reference should be made to the relevant provisions in the civil field where infringers of trademarks “not used for three consecutive years without justifiable reasons” may not be liable for compensation, and thus his counterfeiting behavior should not be considered a crime in the criminal field.
The prosecuting attorney pointed out that China’s criminal law currently does not have special provisions for the above situation. According to the certification letter issued by Burberry and the series of trademark registrations, “BURBERRY BLACK LABEL” is a legally registered trademark in China and is within the validity period, approved for use on clothing products, and should be protected by law. At the same time, the products of the involved text trademark still circulate in the secondary market in China, and the “BURBERRY BLACK LABEL” text trademark still plays the core function of identifying the brand.
In addition, “BURBERRY” itself is also a registered trademark of Burberry. The arrangement of the “BURBERRY BLACK LABEL” word trademark is: “BURBERRY” and “BLACK LABEL” are arranged in separate lines, and the “BURBERRY” word is enlarged, bolded and highlighted. “BLACK LABEL” itself only means “black label”, which is a common industry term for distinguishing product categories and is not a distinctive element of the trademark. According to regulations, if only the common name of the product, model number and other elements lacking distinctive features are added to the registered trademark, and it does not affect the distinctive features of the registered trademark, it can be determined as “a trademark identical to its registered trademark.”
The original announcement is available here (Chinese only).
DOJ Turns Attention to Tariff Evasion and Customs Fraud
At the recent Federal Bar Association annual qui tam conference, U.S. Department of Justice (DOJ) officials stated the agency would aggressively pursue False Claims Act (FCA) investigations and that battling customs fraud would be one of its major areas of focus. Given the recent wave of new tariffs (customs duties) under President Donald Trump’s administration and the DOJ’s emphasis on battling tariff evasion using the FCA, U.S. importers should conduct business with a heightened sense of awareness of compliance with U.S. Customs and Border Protection (CBP) laws and regulations.
Traditional Customs Enforcement
Parties that act as U.S. importers of record have traditionally been held liable for payment of duties to CBP. If an importer underpays duties, CBP’s main statutory authority for enforcement is under 19 U.S.C. § 1592. This statute authorizes CBP to not only recover duties underpaid, but also impose penalties that start at two times the amount underpaid and up to the domestic value of the merchandise, depending on the importer’s level of culpability. Though private parties can file allegations of customs violations with CBP (e.g., via CBP’s e-allegations portal), only CBP can initiate an enforcement action under 19 U.S.C. 1592.
How FCA Cases Work
Unlike 19 U.S.C. 1592, both the U.S. government and private parties that act as whistleblowers (known as “relators”) can bring a case under the FCA against an importer for tariff evasion. Federal law says a person or company who knowingly makes, uses or caused to be made or used, a false record or statement, material to an obligation to pay or transmit money or property to the government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money to the government violates the FCA. Such claims are generally referred to as reverse false claims.
Relators and the DOJ have previously investigated companies under the FCA, using this provision to allege that an individual or company underpaid a tariff or import duty (an obligation), thereby creating a false claim through the underpayment of an obligation to the government.
Parties can take some solace in the fact that innocent mistakes or errors are not subject to the FCA. For an underpayment of import duties to constitute a reverse false claim, it must be knowing, meaning that the individual or company making the underpayment has either subjective knowledge that they are underpaying the obligation, is deliberately ignorant of the obligation, or recklessly disregards the obligation. One caveat to this knowledge standard as it relates to a reverse false claim is that even if the initial underpayment is an innocent mistake, it can become a reverse false claim if the individual or company learns of the underpayment and takes no action to correct it.
Predicting Likely Targets in FCA Tariff Cases
Based on the recent DOJ comments, importers should expect, at the very least, misdeclaration of value and country of origin to CBP to be areas of focus for FCA investigations during the Trump administration.
Valuation affects duties, as the amount owed is based on the declared value of merchandise multiplied by the applicable duty rate. For instance, importers importing from a related overseas manufacturer or supplier will be frequent targets for enforcement. Related party import transactions are subject to higher scrutiny, as declaration of the transaction value may not be acceptable to CBP if certain tests are not met.
Country of origin also directly affects duties owed. Most products of China are now subject to an additional 45 percent duty rate (25 percent under Section 301 combined with 20 percent under IEEPA). Even products that are manufactured outside of China could be subject to the additional 45 percent, if Chinese-origin material contained in the product is not “substantially transformed” into a product of a different country.
Thus, we could certainly see more FCA cases involving importers that fail to declare the proper country of origin on goods, particularly in scenarios where manufacturing has shifted outside of China without satisfying the proper rule of origin.
Misdeclaration of value and origin are just examples of the types of FCA customs fraud cases we should expect to see in the next four years. There will undoubtedly be other areas of risk that could result in non-compliance and trigger an FCA case, such as tariff misclassification. Likewise, we can expect private relators will target their efforts toward whistleblowing on valuation, origin and classification violations, as it will increase the chances of DOJ’s intervention in the lawsuit.
In light of the expected increase in enforcement not only under CBP regulations, but also under the FCA, importers now need to ensure they have updated and robust policies and procedures to take into account areas of risk associated not only with past tariff action, but also new tariffs imposed under the current administration.
A senior U.S. Department of Justice official said … that the Trump administration’s focus on government efficiency will include “aggressively” enforcing the False Claims Act, including a strong focus on FCA enforcement of foreign trade issues amid recently imposed tariffs.
www.law360.com/…
The Big Six Items That Family Offices Need to Consider in 2025
Across all industries, family offices and their owners and management teams face rapidly evolving challenges, opportunities, and risks in the dynamic environment that is 2025. Here are six issues that family offices should consider and be mindful of this year.
1. Impending Sunset after December 31 of Temporarily Doubled Federal Estate, Gift and Generation-Skipping Transfer Tax Exemption — or Maybe Not?
In 2025, the Internal Revenue Service (IRS) increased the lifetime estate and gift tax exemption to $13.99 million per individual ($27.98 million per married couple). Clients who maximized their previous exemption ($13.61 million per individual in 2024), can now make additional gifts of up to $380,000 ($760,000 per married couple) in 2025 without triggering gift tax. Clients who have not used all (or any) of their exemption to date should be particularly motivated to make lifetime gifts because, under current law, the lifetime exemption is scheduled to sunset.
Since the 2017 Tax Cuts and Jobs Act, the lifetime exemption has been indexed for inflation each year. Understandably, clients have grown accustomed to the steady and predicable increase in their exemption. However, absent congressional action, if the exemption lapses, the lifetime estate and gift tax (and generation-skipping transfer tax) exemption will be cut in half to approximately $7.2 million per individual ($14.4 million per married couple) at the start of 2026. That being said, as a result of the Republican trifecta in the 2024 election, it is very plausible that the temporarily doubled exemption may be extended for some additional period of time as part of the budget reconciliation process, which allows actions by majority vote in the Senate (with the vice president to cast the deciding vote in the event of a tie). This is in contrast to the ordinary rules of procedure that require 60 votes out of 100 in the Senate for Congressional action. But there are no assurances that such an extension will occur, and any legislation may not be enacted (if at all) until very late in the year.
To ensure that no exemption is forfeited, clients should consider reaching out to their estate planning and financial advisors to ensure they have taken full advantage of their lifetime exemption. If the exemption decreases at the start of 2026, unused exemption will be lost. Indeed, absent Congressional action to extend the temporarily doubled exemption, this is a use-it-or-lose-it situation.
2. Buy-Sell Agreements and Their Role in Business Succession Planning
The death, disability, or retirement of a controlling owner in a family-controlled business can wreak havoc on the entity that the owner may have spent a lifetime building from scratch. If not adequately planned for, such events can lead to the forced sale of the business out of family hands to an unrelated third party.
A buy-sell agreement is an agreement between the owners of a business, or among the owners of the business and the entity, that provides for the mandatory purchase (or right of first refusal) of an owner’s equity interest, by the other owners or by the business itself (or some combination of the two), upon the occurrence of specified triggering events described in the agreement. Such triggering events can include the death, disability, retirement, withdrawal or termination of employment, bankruptcy and sometimes even the divorce of an owner. Buy-sell agreements may be adapted for use by all types of business entities, including C corporations, S corporations, partnerships, and limited liability companies.
Last June, in Connelly v. United States, the US Supreme Court affirmed a decision of the Eighth Circuit Court of Appeals in favor of the government concerning the estate tax treatment of life insurance proceeds that are used to fund a corporate redemption obligation under a buy-sell agreement. The specific question presented was whether, in determining the fair market value of the corporate shares, there should be any offset to take into account the redemption obligation to the decedent’s estate under a buy-sell agreement. The Supreme Court concluded that there should be no such offset. In doing so, the Supreme Court resolved a conflict that had existed among the federal circuit courts of appeal on this offset issue.
As a result of the Supreme Court’s decision, buy-sell agreements that are structured as redemption agreements should be reviewed by business owners that expect to have taxable estates. In many cases it may be desirable instead to structure the buy-sell agreement as a cross-purchase agreement.
For further information, please see our article that addresses the Connelly decision and its implications: US Supreme Court Affirms the Eighth Circuit’s Decision in Favor of the Government Concerning the Estate Tax Treatment of Life Insurance Proceeds Used to Fund a Corporate Redemption Obligation.
3. Be Very Careful in Planning With Family Limited Partnerships and Family Limited Liability Companies
The September 2024 Tax Court memorandum decision of Estate of Fields v. Commissioner, T.C. Memo. 2024-90, provides a cautionary tale of a bad-facts family limited partnership (FLP) that caused estate tax inclusion of the property transferred to the FLP under both sections 2036(a)(1) and (2) of the Internal Revenue Code with loss of discounts for lack of control and lack of marketability. In doing so, the court applied the Tax Court’s 2017 holding in Estate of Powell v. Commissioner, 148 T.C. 392 (2017) — the ability of the decedent as a limited partner to join together with other partners to liquidate the FLP constitutes a section 2036(a)(2) estate tax trigger — and raises the specter of accuracy-related penalties that may loom where section 2036 applies.
Estate of Fields illustrates that, if not carefully structured and administered, planning with family entities can potentially render one worse off than not doing any such planning at all.
4. The IRS Gets Aggressive in Challenging Valuation Issues
The past year and a half has seen the IRS become very aggressive in challenging valuation issues for gift tax purposes.
First, in Chief Counsel Advice (CCA) 202352018, the IRS’s National Office, providing advice to an IRS examiner in the context of a gift tax audit, addressed the gift tax consequences of modifying a grantor trust to add tax reimbursement clause, finding there to be a taxable gift. The facts of this CCA involved an affirmative consent by the beneficiaries to a trust modification to allow the trustee to reimburse the grantor for the income taxes attributable to the trust’s grantor trust status. Significantly, the IRS admonished that its principles could also apply in the context of a beneficiary’s failure to object to a trustee’s actions, or in the context of a trust decanting.
Next, in a pair of 2024 Tax Court decisions — the Anenberg and McDougall cases — the IRS challenged early terminations of qualified terminable interest property (QTIP) marital trusts in favor of the surviving spouse that were then followed by the surviving spouse’s sale of the distributed trust property to irrevocable trusts established for children. While the court in neither case found there to be a gift by the surviving spouse, the Tax Court in McDougall determined that the children made a gift to the surviving spouse by surrendering their remainder interests in the QTIP trust.
5. The Show Continues: The CTA No Longer Applicable to US Citizens and Domestic Companies
After an on-again-off-again pause of three months beginning in late 2024, the Corporate Transparency Act (CTA) is back in effect, but only for foreign reporting companies. On March 2, the US Department of the Treasury (Treasury) announced it will not enforce reporting requirements for US citizens or domestic companies (or their beneficial owners).
Pursuant to Treasury’s announcement, the CTA will now only apply to foreign entities registered to do business in the United States. These “reporting companies” must provide beneficial ownership information (BOI) and company information to the Financial Crimes Enforcement Network (FinCEN) by specified dates and are subject to ongoing reporting requirements regarding changes to previously reported information. To learn more about the CTA’s specific requirements, please see our prior client alert (note that the CTA no longer applies to domestic companies or US citizens, and the deadlines mentioned in the alert have since been modified, as detailed in the following paragraph).
On February 27, FinCEN announced it would not impose fines or penalties, nor take other enforcement measures against reporting companies that fail to file or update BOI by March 21. FinCEN also stated it will publish an interim final rule with new reporting deadlines but did not indicate when the final rule can be expected. Treasury’s March 2 announcement indicates that the government is expecting to issue a proposed rule to narrow the scope of CTA reporting obligations to foreign reporting companies only. No further details are available at this time, but domestic reporting companies may consider holding off on filing BOI reports until the government provides additional clarity on reporting requirements. Foreign reporting companies should consider assembling required information and being prepared to file by the March 21 deadline, while remaining vigilant about further potential changes to reporting requirements in the meantime.
On the legislative front, earlier this year, the US House of Representatives passed the Protect Small Businesses from Excessive Paperwork Act of 2025 (H.R. 736) on February 10, in an effort to delay the CTA’s reporting deadline. The bill aims to extend the BOI reporting deadline for companies formed before January 1, 2024, until January 1, 2026. The bill is currently before the US Senate, but it is unclear whether it will pass in light of the latest updates.
6. Ethical and Practical Use of AI in Estate Planning
The wave of innovative and exciting artificial intelligence (AI) tools has taken the legal community by storm. While AI opens possibilities for all lawyers, advisors in the estate planning and family office space should carefully consider whether, and when, to integrate AI into their practice.
Estate planning is a human-centered field. To effectively serve clients, advisors develop relationships over time, provide secure and discrete services, and make recommendations based on experience, compassion, and intuition.
Increasingly, AI tools have emerged that are marketed towards estate planning and family office professionals. These tools can (1) assist planners with summarizing complex estate planning documents and asset compilations, (2) generate initial drafts of standard estate planning documents, and (3) translate legal jargon into client-friendly language. Though much of the technology is in the initial stages, the possibilities are exciting.
While estate planning and family office professionals should remain optimistic and open about the emerging AI technology, the following recommendations should be top of mind:
First, advisors must scrutinize the data privacy policies of all AI tools. Advisors should be careful and cautious when engaging with any AI program that requires the input of sensitive or confidential documents to protect the privacy of your clients.
Next, advisors should stay up to date on the statutory and case law developments, as the legal industry is still developing its stance on AI.
Finally, advisors should honor and prioritize the personal and human nature of estate planning and family advising. Over-automating one’s practice can come at the expense of building strong client relationships.
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