No Business Transaction, No Chapter 93A Claim: Mass. Courts Clarify Requirements
To pursue a Chapter 93A claim, there must be some business, commercial, or transactional relationship between the plaintiff(s) and the defendant(s). An indirect commercial link—such as upstream purchasers—may be sufficient to state a valid claim, but there must ultimately be some commercial connection between the plaintiff and defendant. The District of Massachusetts and the Appeals Court of Massachusetts recently affirmed this requirement in two separate cases.
First, the District of Massachusetts affirmed this principle when it denied plaintiffs’ motion for leave to conduct limited discovery, as the allegations in the complaint only highlighted the commercial relationship between the various defendants and not with the plaintiff. In Courtemanche v. Motorola Sols., Inc., plaintiffs brought a putative class action against a group of commercial defendants and the superintendent of Massachusetts State Police, alleging that the State Police unlawfully recorded conversation content between officers and plaintiffs, and then later used those recordings to pursue criminal charges against plaintiffs. The commercial defendants allegedly willfully assisted the State Police by providing them with intercepting devices and storing the recordings on their servers. The commercial defendants moved to dismiss based on plaintiffs’ failure to allege a business, commercial, or transactional relationship between them and the commercial defendants. Plaintiffs then sought to conduct limited discovery in order to establish such a relationship. The court concluded that allowing even limited discovery on the issue would only amount to an inappropriate fishing expedition and denied the motion.
Shortly thereafter, the Massachusetts Appeals Court reversed portions of a consolidated judgment against defendants for Chapter 93A § 11 violations in Flightlevel Norwood, LLC v. Boston Executive Helicopters, LLC. On appeal, the defendants argued, and the Appeals Court agreed, that the trial judge erred in denying their motion for judgment notwithstanding the verdict. The parties both operated businesses at the Norwood Memorial Airport and subleased adjoining parcels of land with a taxiway running along their common border. At trial, plaintiff argued that defendants engaged in unfair acts to exercise dominion and control over plaintiff’s leasehold to advance defendants’ commercial interests and deliberately interfere with plaintiff’s commercial operations. The Appeals Court reiterated that to maintain a Section 11 claim, a business needs to show more than just being harmed by another business’s unfair practices. Instead, plaintiff must prove that it had a significant business deal with the other company, and that the unfair practices occurred as part of the deal. The Appeals Court thus concluded that Chapter 93A § 11 was inapplicable, as there was no business transaction between the parties.
FinCen Announces New Deadline for BOI Reporting Under Corporate Transparency Act
The Financial Crimes Enforcement Network of the U.S. Treasury Department (FinCEN) announced a new deadline for most companies covered by the Corporate Transparency Act (CTA). Such reporting companies now must file Beneficial Ownership Information (BOI) reports no later than March 21, 2025.
FinCEN made its announcement on February 18, 2025, in response to a decision by a federal judge in the U.S. District Court for the Eastern District of Texas lifting the preliminary injunction in Smith v. United States Department of the Treasury. That decision removed the last judicial impediment to the enforcement of the CTA. With limited exceptions for certain reporting companies qualifying for an extension due to disaster relief or who may be subject to an exception as a plaintiff in National Small Business United v. Yellen, reporting companies should file their BOI reports no later than March 21, 2025. As of today, the deadline appears firm and should be considered binding. However, in its announcement, FinCEN left itself the option of extending the deadline if it determines an extension is warranted, indicating that it would provide an update of any modification of the March 21, 2025, deadline prior to that date, recognizing companies impacted by this announcement may need additional time to comply with their BOI reporting obligations.
In light of the March 21, 2025, time frame, companies should take heed of this decision and make every effort to meet this reporting deadline.
BOI is Back: Corporate Transparency Act Reporting Requirements Reinstated
Amid a series of ongoing legal battles, the beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) have been reinstated. In light of the U.S. Supreme Court’s January 23, 2025 order in McHenry v. Texas Top Cop Shop Inc., which granted the government’s request for a stay of a nationwide injunction in a separate case challenging the BOI reporting requirements, on February 17, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay the preliminary injunction issued in Smith v. United States Department of the Treasury. As a result, U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) is no longer prohibited from enforcing the CTA’s BOI reporting requirements, and reporting companies’ compliance obligations have resumed. This ruling is pending an appeal to the U.S. Court of Appeals for the Fifth Circuit.
FinCEN has announced a 30-day deadline extension for reporting companies. The new deadline for the majority of reporting companies to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN has also indicated that it will assess the need for further modifications to the reporting deadlines during this 30-day extension period, with a focus on lower-risk entities.
In parallel, BOI reporting requirements are receiving legislative attention. The Protect Small Business from Excessive Paperwork Act of 2025 unanimously passed the U.S. House of Representatives and a companion bill is awaiting action in the Senate. If enacted, reporting companies formed before January 1, 2025 will have until January 1, 2026 to comply with the BOI reporting requirements.
Reporting companies must ensure they are prepared to meet the March 21, 2025 filing deadline. While further adjustments may be forthcoming, companies are advised to remain proactive in their compliance efforts.
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.
Corporate Transparency Act Back in Effect with March 21 Deadline
The Financial Crimes Enforcement Network (FinCEN) issued a notice confirming that beneficial ownership information (BOI) reporting rules are back in effect following a February 18, 2025, ruling in Smith, et al. v. U.S. Department of the Treasury, et al. in the Eastern District of Texas. The Smith Court lifted its injunction following the January 23, 2025, Supreme Court decision in Texas Top Cop Shop, Inc., et al. v. Garland, et al., which we discussed in a previous alert.
For most reporting companies,[1] the deadline to file a new, updated, or corrected BOI report is now March 21, 2025. However, FinCEN’s notice states that the agency will use the 30-day period before the deadline to “assess its options to further modify deadlines, while prioritizing reporting for those entities that post the most significant security risks.” According to the notice, FinCEN may also work toward revising the BOI reporting rules to “reduce the burden for lower-risk entities.”
Recent legislation unanimously passed in the U.S. House of Representatives exacerbates the lack of certainty around the new deadline. H.R. 736, Protect Small Businesses From Excessive Paperwork Act of 2025, which is now before the Senate, would extend the deadline for filing BOI reports to January 1, 2026, for companies formed before January 1, 2024.
The Corporate Transparency Act (CTA) contains civil and criminal penalties for noncompliance. Reporting companies that take a “wait and see” approach between now and March 21, 2025, should be prepared to file quickly as the deadline approaches. Given the compressed timeframe and the single deadline for the vast majority of companies, there may be a significant demand on FinCEN’s online portal as we approach March 21.
CTA in the Courts
For those keeping score on the CTA litigation front, both cases mentioned above are currently pending in the U.S. Court of Appeals for the Fifth Circuit, with oral arguments scheduled in Texas Top Cop Shop for April 1, 2025. Other cases on appeal to circuit courts include:
National Small Business United v. Yellen — The U.S. District Court for the Northern District of Alabama issued an injunction preventing enforcement of the CTA against the named plaintiffs. Oral arguments were held on September 27, 2024, in the government’s appeal to the U.S. Court of Appeals for the Eleventh Circuit. No decision has been issued.
Firestone et al v. Yellen et al. — The U.S. District Court for the District of Oregon denied the plaintiffs’ request for a preliminary injunction, and the plaintiffs appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
Community Associations Institute et al v. U.S. Department of the Treasury et al. — The U.S. District Court for the Eastern District of Virginia denied the plaintiffs’ request for a preliminary injunction, and the plaintiffs appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.
In a noteworthy decision on February 14, 2025, in Boyle v. Bessent, et al., the U.S. District Court for the District of Maine granted the government’s motion for summary judgment, finding the CTA to be a valid exercise of congressional authority.
We will continue to monitor this situation closely and provide updates as needed.
ENDNOTES
[1] Companies that were previously granted an extended deadline later than March 21, 2025, must file by such later deadline. In addition, the injunction in favor of the plaintiffs in National Small Business United v. Yellen remains unaffected by the latest ruling. Companies formed after February 19, 2025, must file within 30 days of formation.
Corporate Transparency Act Returns: New Deadline March 21, 2025
On February 17, 2025, the Eastern District of Texas in Smith v. United States Department of the Treasury lifted the last remaining nationwide preliminary injunction on enforcement of the filing deadline under the Corporate Transparency Act (CTA) in light of the Supreme Court’s stay of the injunction in Texas Top Cop Shop, Inc., et al. v. Merrick Garland, et al., earlier this year. Following the ruling, the Treasury Department stated that it would extend the filing deadline to March 21, 2025.
With the deadline back in effect, newly formed entities will also need to file within 30 days of formation. In addition, any changes to filings already made will need to be updated within 30 days of the change (if, for example, ownership or control of the entity changes, or if a beneficial owner moves to a new residential address).
The Financial Crimes Enforcement Network (FinCEN), tasked with enforcing the CTA, advised that it is undertaking a review of the CTA to determine if lower-risk categories of entities should be excluded from the reach of the filing requirements. FinCEN will make an initial statement on that review prior to the March 21, 2025 deadline. However, unless and until FinCEN makes changes in the applicability of the requirement, all companies subject to the CTA should treat the deadline as enforceable.
FinCEN also announced that it will initiate a longer process this year to revise the reporting rule to reduce the filing burden for lower-risk entities, but it’s currently unclear as to what those modifications might entail.
Passed in the first Trump Administration but implemented during the Biden presidency, the CTA — an anti-money laundering law designed to combat terrorist financing, seize proceeds of drug trafficking, and root out illicit assets of sanctioned parties and foreign criminals in the U.S. — has faced legal challenges around the country, many of which are ongoing despite the lifting of the preliminary injunctions. In addition to district court proceedings, appeals are currently pending before the Fourth, Fifth, Ninth, and Eleventh Circuits.
Please note that if you file or have already filed and the law is ultimately found unconstitutional or otherwise overturned or rescinded, you will not be under any continuing obligation regarding that filing.
How to Report Cyber, AI, and Emerging Technologies Fraud and Qualify for an SEC Whistleblower Award
SEC Forms Cyber and Emerging Technologies Unit
On February 20, 2025, the SEC announced the creation of the Cyber and Emerging Technologies Unit (CETU) to focus on combatting cyber-related misconduct and to protect retail investors from bad actors in the emerging technologies space. In announcing the formation of the CETU, Acting Chairman Mark T. Uyeda said:
The unit will not only protect investors but will also facilitate capital formation and market efficiency by clearing the way for innovation to grow. It will root out those seeking to misuse innovation to harm investors and diminish confidence in new technologies.
As detailed below, the SEC’s press release identifies CETU’s seven priority areas to combat fraud and misconduct. Whistleblowers can provide original information to the SEC about these types of violations and qualify for an award if their tip leads to a successful SEC enforcement action. The largest SEC whistleblower awards to date are:
$279 million SEC whistleblower award (May 5, 2023)
$114 million SEC whistleblower award (October 22, 2020)
$110 million SEC whistleblower award (September 15, 2021)
$104 million SEC whistleblower award (August 4, 2023)
$98 million SEC whistleblower award (August 23, 2024)
SEC Whistleblower Program
Under the SEC Whistleblower Program, the SEC will issue awards to whistleblowers who provide original information that leads to successful enforcement actions with total monetary sanctions in excess of $1 million. A whistleblower may receive an award of between 10% and 30% of the total monetary sanctions collected. The SEC Whistleblower Program allows whistleblowers to submit tips anonymously if represented by an attorney in connection with their disclosure.
In its short history, the SEC Whistleblower Program has had a tremendous impact on securities enforcement and has been replicated by other domestic and foreign regulators. Since 2011, the SEC has received an increasing number of whistleblower tips in nearly every fiscal year. In fiscal year 2024, the SEC received nearly 25,000 whistleblower tips and awarded over $225 million to whistleblowers.
The uptick in received tips, paired with the sizable awards given to whistleblowers, reflects the growth and continued success of the whistleblower program. See some of the SEC whistleblower cases that have resulted in large awards.
CETU Priority Areas for SEC Enforcement
The CETU will target seven areas of fraud and misconduct for SEC enforcement:
Fraud committed using emerging technologies, such as artificial intelligence (AI) and machine learning. For example, the SEC charged QZ Asset Management for allegedly falsely claiming that it would use its proprietary AI-based technology to help generate extraordinary weekly returns while promising “100%” protection for client funds. In a separate action, the SEC settled charges against investment advisers Delphia and Global Predictions for making false and misleading statements about their purported use of AI in their investment process.
Use of social media, the dark web, or false websites to perpetrate fraud. For example, the SEC charged Abraham Shafi, the founder and former CEO of Get Together Inc., a privately held social media startup known as “IRL,” for raising approximately $170 million from investors by allegedly fraudulently portraying IRL as a viral social media platform that organically attracted the vast majority of its purported 12 million users. In reality, IRL spent millions of dollars on advertisements that offered incentives to download the IRL app. Shafi hid those expenditures with offering documents that significantly understated the company’s marketing expenses and by routing advertising platform payments through third parties.
Hacking to obtain material nonpublic information. For example, the SEC brought charges against a U.K. citizen for allegedly hacking into the computer systems of public companies to obtain material nonpublic information and using that information to make millions of dollars in illicit profits by trading in advance of the companies’ public earnings announcements.
Takeovers of retail brokerage accounts. For example, the SEC charged two affiliates of JPMorgan Chase & Co. for failures including misleading disclosures to investors, breach of fiduciary duty, prohibited joint transactions and principal trades, and failures to make recommendations in the best interest of customers. According to the SEC’s order, a JP Morgan affiliate made misleading disclosures to brokerage customers who invested in its “Conduit” private funds products, which pooled customer money and invested it in private equity or hedge funds that would later distribute to the Conduit private funds shares of companies that went public. The order finds that, contrary to the disclosures, a JP Morgan affiliate exercised complete discretion over when to sell and the number of shares to be sold. As a result, investors were subject to market risk, and the value of certain shares declined significantly as JP Morgan took months to sell the shares.
Fraud involving blockchain technology and crypto assets. For example, the SEC brought charges against Terraform Labs and its founder Do Kwon for orchestrating a multi-billion dollar crypto asset securities fraud involving an algorithmic stablecoin and other crypto asset securities. In a separate action, the SEC brought charges against FTX CEO Samuel Bankman-Fried for a years-long fraud to conceal from FTX’s investors (1) the undisclosed diversion of FTX customers’ funds to Alameda Research LLC, his privately-held crypto hedge fund; (2) the undisclosed special treatment afforded to Alameda on the FTX platform, including providing Alameda with a virtually unlimited “line of credit” funded by the platform’s customers and exempting Alameda from certain key FTX risk mitigation measures; and (3) undisclosed risk stemming from FTX’s exposure to Alameda’s significant holdings of overvalued, illiquid assets such as FTX-affiliated tokens.
Regulated entities’ compliance with cybersecurity rules and regulations. For example, the SEC settled charges against transfer agent Equiniti Trust Company LLC, formerly known as American Stock Transfer & Trust Company LLC, for failures to ensure that client securities and funds were protected against theft or misuse, which led to losses of millions of dollars in client funds.
Public issuer fraudulent disclosure relating to cybersecurity. For example, the SEC settled charges against software company Blackbaud Inc. for making misleading disclosures about a 2020 ransomware attack that impacted more than 13,000 customers. Blackbaud agreed to pay a $3 million civil penalty to settle the charges. In a separate action, the SEC settled charges against The Intercontinental Exchange, Inc. and nine wholly owned subsidiaries, including the New York Stock Exchange, for failing to timely inform the SEC of a cyber intrusion as required by Regulation Systems Compliance and Integrity.
How to Report Fraud to the SEC and Qualify for an SEC Whistleblower Award
To report a fraud (or any other violations of the federal securities laws) and qualify for an award under the SEC Whistleblower Program, the SEC requires that whistleblowers or their attorneys report the tip online through the SEC’s Tip, Complaint or Referral Portal or mail/fax a Form TCR to the SEC Office of the Whistleblower. Prior to submitting a tip, whistleblowers should consult with an experienced whistleblower attorney and review the SEC whistleblower rules to, among other things, understand eligibility rules and consider the factors that can significantly increase or decrease the size of a future whistleblower award.
CTA UPDATE: US District Court Reinstates Reporting Requirement; FinCEN Grants 30-Day Filing Extension
Go-To Guide:
On Feb. 18, 2025, the U.S. District Court for the Eastern District of Texas granted the government’s motion to stay relief in Smith v. U.S. Department of the Treasury, thereby lifting the injunction against the Corporate Transparency Act (CTA) that had been in place in that case.
As a result, FinCEN confirmed that beneficial ownership information (BOI) reporting requirements under the CTA are once again back in effect, subject to a 30-day filing extension.
Most entities will have a reporting deadline of March 21, 2025 (except for reporting companies with later reporting deadlines under existing guidelines).
The CTA’s status has shifted multiple times1 since Dec. 3, 2024, when a Texas district court in Texas Top Cop Shop, Inc. v. McHenry (formerly Texas Top Cop Shop, Inc. v. Garland) preliminarily enjoined the CTA and its BOI reporting rule (Reporting Rule) on a nationwide basis.
On Jan. 7, 2025, a second federal judge of the U.S. District Court for the Eastern District of Texas (the District Court) ordered preliminary relief barring CTA enforcement in Smith v. U.S. Department of the Treasury.2 Then, notwithstanding the SCOTUS Order staying the injunction in Texas Top Cop Shop, on Jan. 24, 2025, FinCEN confirmed that reporting companies were not required to file BOI Reports with FinCEN due to the separate nationwide relief entered in Smith (and while the order in Smith remained in effect). On Feb. 5, 2025, the government appealed the ruling in Smith to the U.S. Court of Appeals for the Fifth Circuit (the Fifth Circuit) and asked the District Court to stay relief pending that appeal.
CTA Reporting Requirements Back in Effect
On Feb. 18, 2025, the District Court in Smith granted a stay of its preliminary injunction pending appeal, thereby reinstating BOI reporting requirements once again. On Feb. 19, 2025, FinCEN issued guidance on its website to reflect this update and to announce that companies have 30 days to submit BOI reports:
With the February 18, 2025, decision by the U.S. District Court for the Eastern District of Texas in Smith, et al. v. U.S. Department of the Treasury, et al., 6:24-cv-00336 (E.D. Tex.), beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) are once again back in effect. However, because the Department of the Treasury recognizes that reporting companies may need additional time to comply with their BOI reporting obligations, FinCEN is generally extending the deadline 30 calendar days from February 19, 2025, for most companies.
New Filing Deadlines
Most reporting companies will be required to file BOI reports no later than March 21, 2025, as follows:
The new deadline to file an initial, updated, and/or corrected BOI report is generally now March 21, 2025.
Companies that were previously given a reporting deadline later than the March 21, 2025, deadline must file their initial BOI report by that later deadline (i.e., companies that qualify for certain disaster relief extensions and companies formed on or after Feb. 20, 2025).
Looking Ahead
In its guidance, FinCEN indicates that it will assess its options to further modify deadlines and initiate a process this year to revise the Reporting Rule to reduce burden for lower-risk entities, including many U.S. small businesses. How this will impact BOI reporting requirements remains to be seen.
Expedited oral arguments for the Fifth Circuit appeal in Texas Top Cop Shop are set for March 25, 2025. Unless the courts or Congress3 provide further relief, reporting companies should prepare to comply with the deadlines outlined above. Additionally, reporting companies should stay updated on FinCEN announcements, as further adjustments to reporting deadlines could be issued within the next 30 days.
1 On Dec. 3, 2024, the CTA and its BOI reporting rule were preliminary enjoined on a nationwide basis, approximately four weeks ahead of a key Jan. 1, 2025, deadline. FinCEN appealed that ruling, and on Dec. 23, 2024, a motions panel of the U.S. Court of Appeal for the Fifth Circuit stayed the injunction, allowing the CTA to go back into effect. Three days later, on Dec. 26, 2024, a merits panel of the Fifth Circuit vacated the motion panel’s stay, effectively reinstating the nationwide preliminary injunction against the CTA and the Reporting Rule. On Dec. 31, 2024, the government filed an emergency application with the U.S. Supreme Court to stay that preliminary injunction. On Jan. 23, 2025, the Supreme Court granted that application (the SCOTUS Order), staying the nationwide preliminary injunction in Texas Top Cop Shop, Inc. v. McHenry. McHenry v. Texas Top Cop Shop, Inc., No. 24A653, 2025 WL 272062 (U.S. Jan. 23, 2025).
2 See Smith v. United States Dep’t of the Treasury, No. 6:24-CV-336-JDK, 2025 WL 41924 (E.D. Tex. Jan. 7, 2025).
3 On Feb. 10, 2025, the House of Representatives unanimously passed the Protect Small Businesses from Excessive Paperwork Act (H.R. 736, 119th Cong. (2025)). The bill has moved to the Senate for consideration. If enacted, the bill will extend the reporting deadline for entities that qualify as “a small business concern” to Jan. 1, 2026.
The Return of the CTA: FinCEN Confirms that Beneficial Ownership Information Reporting Requirements are Back in Effect with a New Deadline of March 21, 2025
On February 19, 2025, the Financial Crimes Enforcement Network (“FinCEN”) announced that beneficial ownership information reporting requirements under the Corporate Transparency Act (“CTA”) are back in effect with a new deadline of March 21, 2025 for most reporting companies. This announcement came in response to the decision made on February 17, 2025 by the U.S. District for the Eastern District of Texas in Smith v. U.S. Department of the Treasury, No. 6:24-cv-336-JDK, 2025 WL 41924 (E.D. Tex.) to stay (lift) the preliminary injunction on enforcement of the CTA.
In addition to the deadline extension of 30 calendar days from February 19, 2025, FinCEN notably stated that “in keeping with Treasury’s commitment to reducing regulatory burden on businesses, during this 30-day period FinCEN will assess its options to further modify deadlines, while prioritizing reporting for those entities that pose the most significant national security risks. FinCEN also intends to initiate a process this year to revise the BOI reporting rule to reduce burden for lower-risk entities, including many U.S. small businesses.”
FinCEN did not provide any further details regarding how or when the BOI reporting rule would be revised. However, FinCEN did note that it would provide an update before the March 21, 2025 deadline “of any further modification of this deadline, recognizing that reporting companies may need additional time to comply with their BOI reporting obligations once this update is provided.” The full notice from FinCEN can be read here: FinCEN Notice, FIN-2025-CTA1, 2/18/2025.
Meanwhile, in Congress, several bills have been proposed that, if signed into law, would push the reporting deadline out still further. On February 10, 2025, the Protect Small Business from Excessive Paperwork Act of 2025, H.R. 736, co-lead by U.S. Representatives Zachary Nunn (R-IA), Sharice Davids (D-KS), Tom Emmer (R-MN) and Don Davis (D-NC), unanimously passed by the House. This bill, if passed into law, would modify the deadline for filing of initial BOI reports by reporting companies that existed before January 1, 2024 to not later than Jan. 1, 2026. On February 12, 2025, the Protect Small Business Excessive Paperwork Act of 2025 – companion legislation in the Senate that would likewise extend the filing deadline until January 1, 2026 – was introduced by U.S. Senators Katie Britt (R-AL) and Tim Scott (R-SC) and referred to the Committee on Banking, Housing and Urban Affairs.
Additionally, on January 15, 2025, another bill – the Repealing Big Brother Overreach Act – was introduced by U.S. Senator Tommy Tuberville (R-AL) in the Senate and re-introduced by U.S. Representative Warren Davidson (R-OH) in the House. This bill, if passed into law, would repeal the CTA entirely.
As noted above and in previous posts, the CTA landscape remains volatile. The Sheppard Mullin CTA Task Force will continue to monitor the various court cases, both in Texas and in other jurisdictions around the country, as well as the legislative bills that are making their way through the House and Senate, and will continue to provide updates as they become available. In the meantime, reporting companies are advised to comply with the law as it currently stands and, barring any further updates from FinCEN, should being filing BOI reports again if they have not already done so.
For background information about the CTA and its reporting requirements (including answers to several frequently asked questions), please refer to our previous blog post, dated November 5, 2024. For more information about the history of the CTA litigation mentioned above, please refer to our blog post, dated January 3, 2025.
Additional information about the CTA requirements can be found at the following FinCEN websites:
FinCEN’s website regarding beneficial ownership information
FinCEN’s Small Entity Compliance Guide
FinCEN’s BOIR Frequently Asked Questions (https://www.fincen.gov/boi-faqs)
Recent Developments: Nationwide CTA Injunction Lifted, New March 21, 2025, Reporting Deadline Set, and Reporting Rule May Be Modified
Key Takeaways:
The Corporate Transparency Act (CTA) reporting requirements are back in effect following a Texas district court decision entered on February 18.
According to the Financial Crime Enforcement Network (FinCEN), the new general deadline for most reporting companies filing initial, updated, and corrected BOI reports is March 21and the deadline for a reporting company with a previously given later deadline is the later deadline.
In the interim, FinCEN “will assess its options to further modify deadlines, while prioritizing reporting for those entities that pose the most significant national security risks.”
FinCEN also “intends to initiate a process this year to revise the BOI reporting rule to reduce burden for lower-risk entities, including many U.S. small businesses.”
Background:
On January 23, 2025, the United States Supreme Court (SCOTUS) reversed the U.S. district court’s preliminary injunction staying the Corporate Transparency Act (CTA) and the implementing Reporting Rule in Texas Top Cop Shop v McHenry (f/k/a Texas Top Cop Shop v Garland), Case No. 4:24-cv-00478 (E.D. Tex. 2024). For background, see our previous alerts describing the Texas Top Cop Shop district court’s December 3, 2024, opinion and order, and the Fifth Circuit’s decisions lifting and later reinstating the district court’s nationwide stay.[1]
A separate nationwide stay of the CTA Reporting Rule issued on January 7, 2025, by another Texas district court in Smith v U.S. Department of Treasury, Case No. 6:24-cv-00336 (E.D. Tex. Jan 7, 2025) was not affected by the SCOTUS order in Texas Top Cop Shop and remained in effect.[2]
On January 24, 2025, FinCEN published an updated alert acknowledging that, in light of the continuing effect of the nationwide stay in Smith, reporting companies were at that time not required to report beneficial ownership information but could do so voluntarily.[3]
On February 5, 2025, the Department of Justice (DOJ) appealed the Smith nationwide stay to the Fifth Circuit and filed a motion with the Smith district court asking it to lift that stay in view of the SCOTUS order in Texas Top Cop Shop. DOJ stated that, if lifted, FinCEN intended to extend reporting deadlines for 30 days and, during that period, evaluate whether to revise reporting requirements on “low-risk” entities and prioritize enforcement on the “most significant national security risks.”
On February 6, 2025, FinCEN published a new alert acknowledging the DOJ’s pending appeal in Smith and motion requesting the district court to lift the stay in Smith. FinCEN also confirmed its intention, if the stay was lifted, to extend the reporting deadline by 30 days and to assess options to modify further reporting deadlines for “lower-risk” entities during the 30-day period.
Smith District Court Lifts Stay of CTA Reporting Rule:
On February 18, 2025, the Smith district court stayed the preliminary relief granted in its January 5, 2025, order, including the nationwide stay of the CTA Reporting Rule, pending disposition of the Smith appeal to the Fifth Circuit.[4]
CTA Reporting Requirements Back in Effect:
On February 19, 2025, FinCEN published an updated alert stating that, in view of the Smith district court’s decision, “beneficial ownership information (BOI) reporting requirements under the Corporate Transparency Act (CTA) are once again back in effect.” FinCEN generally extended the deadline for most reporting companies filing initial, updated and corrected BOI reports to March 21, 2025 (30 calendar days from February 19, 2025). FinCEN also stated that “during this 30-day period, FinCEN will assess its options to further modify deadlines, while prioritizing reporting for those entities that pose the most significant national security risks” and that “FinCEN also intends to initiate a process this year to revise the BOI reporting rule to reduce burden for lower-risk entities, including many U.S. small businesses.” At the same time, FinCEN also updated two other alerts with respect to Texas Top Cop Shop and National Small Business United v Yellen.[5]
FinCEN Updated CTA Reporting Deadlines:
The updated deadlines, as set forth in the FinCEN updated alert, follow:
For the “vast majority” of reporting companies, the new deadline to file an initial, updated, and/or corrected BOI report is March 21, 2025. FinCEN also stated that it will provide an update before that deadline of any further deadline modifications, recognizing that more time may be needed to meet BOI reporting obligations.
For reporting companies that were previously given a reporting deadline later than the March 21, 2025, the applicable deadline is that later deadline. FinCEN included as an example, “if a company’s reporting deadline is in April 2025 because it qualifies for certain disaster relief extensions, it should follow the April deadline, not the March deadline.”
FinCEN also noted that the plaintiffs in National Small Business United v. Yellen are not currently required to report their beneficial ownership information to FinCEN. See FinCEN alert “Notice Regarding National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)”.
For additional information, see the FinCEN February 19, 2025, updated Alert, Beneficial Ownership Information Reporting | FinCEN.gov], and FinCEN Notice, FIN-2025-CTA1, FinCEN Extends Beneficial Ownership Information Reporting Deadline by 30 Days; Announces Intention to Revise Reporting Rule (February 18, 2025).
If you have questions about your CTA-related engagement with the firm, please contact your Miller Canfield lawyer for further guidance.
[1] Corporate Transparency Act: Miller Canfield
[2] See the Smith district court’s opinion and order here: [Smith et al v. United States Department of The Treasury et al, No. 6:2024cv00336 – Document 30 (E.D. Tex. 2025).]
[3] The current FinCEN Alerts can be found here [Beneficial Ownership Information Reporting | FinCEN.gov.]
[4] gov.uscourts.txed.232897.39.0.pdf
[5] [Beneficial Ownership Information Reporting | FinCEN.gov]
The CTA Strikes Back
Following a cascade of developments, the Corporate Transparency Act (CTA) is back, but with some potential changes on the horizon. Most reporting companies that have not yet filed all required reports under the CTA should prepare to file their initial, updated, or corrected reports by March 21, 2025.
In our recent alert on the CTA, we noted that the US Court of Appeals for the Fifth Circuit on December 26 reinstated a nationwide injunction prohibiting the government from enforcing the CTA. That injunction was stayed by the US Supreme Court on January 23, but a district court order in another case, Smith v. US Department of the Treasury, kept the CTA offline.
Court Orders the CTA Back into Effect
By an order dated February 17, however, the final district court order in the Smith case that was preventing the CTA’s enforcement was lifted by the US District Court for the Eastern District of Texas. As a result, beneficial ownership information (BOI) reporting requirements under the CTA are now back in effect.
FinCEN’s Response
In response, the Financial Crimes Enforcement Network (FinCEN) issued a notice stating that the new deadline for most reporting companies to file an initial, updated, or corrected BOI report is now March 21, 2025. Reporting companies that were previously given a reporting deadline later than March 21 (such as those qualifying for certain disaster relief extensions or those that were formed in late December 2024) have until that later deadline to file their initial BOI reports.
FinCEN’s notice further states that the government, recognizing that reporting companies may need additional time to comply with their BOI reporting obligations, will provide an update before March 21 of any further modifications to this deadline. FinCEN also observes that it will initiate a process this year to revise the BOI reporting rule to reduce burdens for “lower-risk entities,” including many US small businesses, although the notice does not go into detail on what companies might fall within that category or what changes may be contemplated.
Potential Future Court Action?
While it is possible that a court may find the CTA to be unconstitutional or otherwise stay its enforcement once again, there are no guarantees that this will occur (if at all) before the new March 21 deadline.
Potential Legislative Action?
There also remains the possibility of legislative action. On February 10, the US House of Representatives unanimously passed a bill, H.R. 736 (the Protect Small Businesses from Excessive Paperwork Act of 2025), to extend the filing deadline to January 1, 2026, for reporting companies formed before January 1, 2024. That bill is now under consideration in the US Senate, although, as of the publication of this alert, there is no indication of whether or when there may be further action on the bill in the Senate.
What Now?
In light of these developments, reporting companies should resume their CTA compliance efforts to file the requisite BOI reports by March 21 (or, as applicable, a later reporting deadline for those reporting companies that were previously given a reporting deadline later than March 21).
Client Alert- Corporate Transparency Act Is Back in Effect – Another Major Update
As has now been well reported, in 2021 Congress enacted the Corporate Transparency Act (the “CTA”), which empowers the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) to collect information about “Beneficial Owners” of certain privately held entities for the purpose of deterring illicit activities through the operation of shell corporations and LLCs.
Entities formed on or after Jan. 1, 2024, that are subject to the CTA were to disclose to FinCEN information about their Beneficial Owners within 90 days of formation or any change for entities (Beneficial Ownership Interest Reports or “BOIR”). Entities formed prior to Jan. 1, 2024, were to have until Dec. 31, 2024, to file BOIRs. However, in the latter part of 2024, a series of lawsuits were brought challenging the constitutionality of the CTA; they have served to delay the reporting requirements of the CTA and have created confusion and uncertainty regarding the CTA for more than 30 million entities.
The most recent event occurred on Feb. 17, 2025, when the U.S. District Court for the Eastern District of Texas, Tyler Division issued a decision in Smith, et al. v. U.S. Department of the Treasury, et al., lifting the stay the Court had ordered on Jan. 7, 2025, that prevented FinCEN from enforcing the BOIR requirements on a nationwide basis.
In view of this decision, FinCEN issued guidance on Feb. 18, 2025, stating that the requirement to file BOIRs under the CTA is once again back in effect. For the vast majority of reporting companies, the new deadline to file an initial, updated, and/ or corrected BOIR is now March 21, 2025. FinCEN indicated that it will provide an update before then of any further modification of this deadline, recognizing that reporting companies may need additional time to comply with their reporting obligations once this update is provided.
The following chronology of events leading up to Feb. 18 underscores the confusion surrounding the CTA:
On Dec. 3, 2024, in the case of Texas Top Cop Shop, Inc., et al. Garland, et al., the U.S. District for the Eastern District of Texas, Sherman Division, issued an order prohibiting the federal government from enforcing the CTA anywhere in the country. The Court determined that the CTA was likely unconstitutional, and that its implementation would irreparably harm companies if they were forced to comply.
On Jan. 7, 2025, in the case of Smith case, the U.S. District Court for the Eastern District of Texas, Tyler Division, issued an order enjoining the government from enforcing the CTA against the plaintiffs and staying FinCEN’s regulations relating to the implementation of the CTA’s reporting requirements.
On Jan. 20, 2025, President Trump signed an Executive Order titled “Regulatory Freeze Pending Review,” which provides in part:
“I hereby order all executive departments and agencies to take the following steps:
(1) Do not propose or issue any rule in any manner, including by sending a rule to the Office of the Federal Register (the “OFR”), until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule.”
The impact of this Order on FinCEN’s ability to issue new filing deadlines is uncertain.
On Jan. 23, 2025, the U.S. Supreme Court stayed (i.e., halted) the injunction issued in the Texas Top Cop Shop decision but did not address the injunction in
On Jan. 24, FinCEN issued the following:
“In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do so while the order remains in force… However, reporting companies may continue to voluntarily submit beneficial ownership information reports.”
On Feb. 5, 2025, the federal government filed an appeal in the Eastern District of Texas challenging the injunction in Smith based on the Supreme Court’s ruling in Texas Top Cop Shop. FinCEN has indicated that if the remaining nationwide injunction in Smith is stayed, it intends to resume enforcement of the CTA and extend the reporting deadline by at least 30 days from the issuance of the stay.
On Feb. 10, 2025, the House of Representatives unanimously passed R. 736 — 119th Congress (2025-2026), the Protect Small Business from Excessive Paperwork Act of 2025. This bill would require reporting companies formed or registered before Jan. 1, 2024, to submit reports to FinCEN by Jan. 1, 2026, instead of by Jan. 1, 2025.
Prior to the above- mentioned Court decision on Feb. 17, some entities were taking take a “wait and see approach,” taking the risk of having to make a filing quickly. Other entities were more proactive and made a voluntary filing. With the February Court decision and FinCEN’s resulting position, a “wait and see approach” is no longer an option, at least not for now. But uncertainty regarding the ultimate fate of the CTA remains in view if the Executive Order described above and the possibility that the U.S. Supreme Court may rule on its constitutionality.
Stay tuned!