Election Law / Legislative News

Oregon Employment Law: Key Legislative Changes for 2025

Takeaways

Significant employment law changes, taking effect at various points between May 1 and Sept. 30, will impact employers for the rest of 2025 and beyond.
Employer compliance and training efforts will be affected in the following areas: Workplace accommodations, agency interaction, professional employer organizations, unemployment and paid leave programs, and anti-discrimination protections.
Employers and legal counsel should review the changes carefully and update internal policies, training programs, and compliance protocols.

House Bill 3809 Adds Obligations to Battery Energy Storage Lessees in Texas

On May 29, 2025, House Bill No. 3809 was signed into law by Texas Governor Greg Abbott. Born out of a crop of bills regulating renewable energy, including S.B. 388, S.B. 715, and S.B. 819, H.B. 3809 is the only one to be signed into law this session. It takes effect September 1, 2025 and places additional requirements on certain battery energy storage operators entering into a lease on or after that date. [H.B. 3809, Sections 2 and 3]. Specifically, the bill mandates decommissioning requirements in battery energy storage (BESS) facilities, other than those owned by an electric utility [New Sections 303.001(1)(B) and (5) of the Texas Utilities Code], requires financial assurance to comply with these decommissioning obligations, and sets forth non-waivable provisions in facility leases containing those requirements. As such, H.B. 3809 effectively aligns decommissioning and financial assurance obligations for BESS projects with those already established for wind and solar energy projects.
Key Provisions of H.B. 3809
The two most notable changes H.B. 3809 makes are mandating decommissioning and financial assurance provisions in BESS leases not entered into by an electric utility. These changes, which are designed to protect landowners and the environment, add more obligations to BESS storage lessees by mandating the removal of their facilities.
1. Mandatory Decommissioning Provisions in Lease Agreements
H.B. 3809 introduces a series of amendments to the Texas Utilities Code that mandate facility-removal provisions in battery energy storage leases. The lease must provide that the lessee is responsible for safely removing the facility and storage resources, like transformers and substations. [New Section 303.004(a)(1) of the Texas Utilities Code]. In addition to the facility and storage resources, the lessee must safely remove foundations, buried cables, and overhead lines. [Id. at subsections (a)(3) and (4)]. The lease must also include provisions that make the lessee responsible for disposing of and recycling components. [Id, at Section (b)]. Further, the amendments mandate landowner-requested obligations in leases, including maintaining and removing roads, filling holes, removing rocks with a 12-inch or larger diameter, returning the land to a tillable state, and restoring the surface. [Id. at subsection (d)].
2. Financial Assurance Requirements
H.B. 3809 mandates that BESS lessees that are not an electric utility provide financial assurance to ensure they perform the newly-created facility decommissioning obligations. [New Section 303.005 of the Texas Utilities Code]. Lessees must deliver financial assurance to the landowner before the earlier of the facility lease’s termination date or the facility’s 15th-anniversary date. [Id. at subsection (e)]. Acceptable forms of financial assurance include a parent company guaranty with a minimum investment grade credit rating for the parent company issued by a major domestic credit rating agency, a letter of credit, a bond, or another form of financial assurance reasonably acceptable to the landowner. [Id. at subsection (a)]. The amount of financial assurance must be sufficient to cover the facility removal, component recycling, and surface restoration costs minus the facility salvage value less the value of any portion of the facility already pledged as collateral for existing debt. [Id. at subsection (b)]. An independent third-party Texas-licensed engineer will determine the costs and salvage value. [Id. at subsection (c)(1)]. The lessee shall provide an initial estimated cost of removal and recycling or disposal on or before the 10th anniversary of the facility’s battery operation date, and must update the estimate at least once every five years for the life of the lease. [Id. at subsections (c)(2) and (3)].
Enforcement Provisions
H.B. 3809 introduces a series of legal and procedural safeguards to enforce its new decommissioning and financial assurance requirements. The bill includes a non-waiver clause that forbids contractual waiver of its provisions. [New Section 303.002(a) of the Texas Utilities Code]. It also entitles the landowner to injunctive relief, among other remedies available to the landowner, if their lessee violates the provisions of H.B. 3809. [Id. at subsections (b) and (c)].
Chance Fraser contributed to this article

Minnesota State Contractors Must Use New MDHR Two-Part Annual Compliance Report Beginning July 1

In March 2025, the Minnesota Department of Human Rights (MDHR) updated its annual compliance report (ACR) without substantive changes. Two months later, the MDHR has issued a new two-part ACR with significant updates. The new ACR now includes two parts: “Part 1: Year in Review Narrative,” and “Part 2: Data Analysis.” Minnesota contractors must begin using the new two-part ACR effective July 1, 2025. Additionally, the ACR reporting period options now differ based on the date the contractor’s MDHR workforce certificate of compliance was approved.

Quick Hits

Starting July 1, 2025, Minnesota contractors must use the updated two-part annual compliance report (ACR) which includes a year in review narrative and data analysis sections.
The new ACR requires contractors to provide detailed narratives on their compliance efforts and corrective actions, along with structured data reporting on employee movements and training.
Contractors with workforce certificates issued on or after July 1, 2025, can choose from four different reporting periods for their ACR, ending up to three months prior to the certificate approval date.

Part 1: Year in Review Narrative
Section 1: Company Information
This section basically solicits the same information as was requested in the previous ACR. The differences include:

Clarification that the company name must be the name as registered with the Minnesota secretary of state.
The mailing address (if different from physical address) is now also requested.
The job title and email address of the person who prepared the ACR is now requested.
The email address of the senior management official who reviewed the ACR is now requested.

Section 2: Narrative on Good Faith Efforts
In the previous ACR, contractors were required to complete an affirmative action plan (AAP) progress report narrative where they would explain their good faith efforts and action steps taken to address areas of minority and/or female underutilization or ensure continued utilization levels. The new narrative section is more structured and requires the contractor to answer two questions:

“In the past year, we meaningfully implemented our company’s Compliance Plan in the following ways:
In the past year, we meaningfully implemented our company’s Equal Opportunity Statement in the following ways:”

Section 3: Good Faith Efforts for All Companies
In this section, contractors are required to identify the areas in which they determined they were not in compliance with MDHR requirements and detail the corrective action taken in the prior year with respect to their hiring process, current employees, and workplace.
Section 4: Additional Good Faith Efforts for Construction Contractors Only
Construction contractors are required to answer additional questions concerning prime contracts awarded in the prior twelve months and whether timely preconstruction and/or monthly reports were submitted to MDHR. They must also identify areas where they were out of compliance concerning their hiring process, current employees, and workplace, and the corrective action taken to address identified deficiencies.
Part 2: Data Analysis
Contractors still report:

“Total Employees – Beginning of Reporting Period
Total Applicants
Total Hires
Applicants Interviewed
Applicants Tested
Employees Promoted – From
Employees Promoted – To
Employees Demoted – From
Employees Demoted – To
Employees Terminated
Total Current Employees”

The differences involve the definitions of employees transferred out and in, and employees trained. In the prior ACR, transfers were defined as movements out of and into job groups. In the new ACR, the definition of transfers is clarified to include movements out of or into the company’s facilities that are included in the ACR.
The old ACR requested data on all employees who received company-sponsored training. The new ACR clarifies that contractors are to report all employees who received company-sponsored equal employment opportunity (EEO) training during the reporting period.
Contractors are still required to complete an availability and underutilization analysis (AUA). The instructions for the new AUA require contractors to use 2018 census data and emphasize that contractors are not to adopt quotas. Likewise, the new AUA form no longer includes annual percentage goals.
Change to ACR Reporting Period
Contractors whose workforce certificates are issued before July 1, 2025, may use data up to two months prior to their certificate approval date to complete their ACRs. For example, if a contractor’s certificate was issued on June 1, 2024, the ACR reporting period may be one of the following three periods:

June 1, 2024 – May 31, 2025
May 1, 2024 – April 30, 2025
April 1, 2024 – March 31, 2025

Contractors whose certificate is issued July 1, 2025, or later, may use reporting periods that end up to three months prior to their certificate approval date. For example, a contractor whose certificate is issued July 15, 2025, may use the following four reporting periods to complete the ACR:

July 15, 2025 – July 14, 2026
June 15, 2025 – June 14, 2026
May 15, 2025 – May 14, 2026
April 15, 2025 – April 14, 2026

Conclusion
Beginning July 1, 2025, Minnesota contractors holding an active workforce certificate of compliance must begin using MDHR’s new two-part annual compliance report, which requires a more comprehensive narrative to identify and address compliance deficiencies. Likewise, the definitions and instructions included in the data analysis section of the new ACR help to clarify contractors’ reporting obligations with respect to employee transfers and employees trained, and now require use of 2018 census data for the preparation of the availability and underutilization analysis. Finally, when completing the ACR, contractors whose certificate is issued July 1, 2025, or later, may use a twelve-month reporting period that matches the certification period dates or ends exactly one, two, or three months before the certificate approval date.

Oregon Amends Consumer Privacy Act

On May 27, 2025, and June 3, 2025, Oregon Governor Tina Kotek signed into law H.B. 3875 and H.B. 2008, each of which amends the Oregon Consumer Privacy Act (the “Act”).
H.B. 3875 expands the Act’s scope to cover all motor vehicle manufacturers that control or process personal data obtained from consumers’ use of vehicle or any component of a vehicle, by removing car makers and affiliates from an exemption for entities that process the data of fewer than 100,000 consumers or derives 25 percent or more of their revenue from selling data. As a result, drivers have the right to opt out of having their personal information sold or used for advertising by car makers.
H.B. 2008 amends the Act to prohibit the sale of precise geolocation data relating to an individual or their device’s present or past location (within a radius of 1,750 feet), and the sale of personal data of children under age 16.

House Advances Tax Legislation: Implications for Tax-Exempt Organizations

On May 22, the US House of Representatives passed H.R. 1, the “One Big Beautiful Bill Act.” This alert highlights the provisions in the Bill that could impact tax-exempt organizations.

As passed by the House, the Bill reflects significant changes from the version reported by the House and Ways and Means Committee (Committee version) covered in our previous alert.
The Bill now moves to the US Senate for consideration. Further changes are likely to occur in the Senate, and the revised version of the legislation would then need to be approved by the House before sending it to the president’s desk.
The Bill does not include the following provisions included in the Committee version:

Unrelated Business Taxable Income From Name and Logo Royalties: The Bill does not include the proposed modification to the royalty exception for unrelated business taxable income that would exclude income derived from any sale or licensing of a tax-exempt organization’s name and logo.
Termination of Tax-Exempt Status for Terrorist Supporting Organizations: The Bill does not include the proposed modification to Section 501(p) of the Internal Revenue Code, which would have added a definition of “terrorist supporting organizations” to Section 501(p) and provided the Secretary of the Treasury with the authority to designate an organization as a terrorist supporting organization without consulting with the Secretary of State and the Attorney General.

The Bill modifies the Committee version in several key respects:

Excise Tax on Net Investment Income of Private Foundations: Like the Committee version, the Bill replaces the flat 1.39% excise tax rate with a four-tiered structure based on the foundation’s total assets:

Foundations with assets below $50 million: 1.39%.

Foundations with assets between $50 million and $250 million: 2.78%.
Foundations with assets between $250 million and $5 billion: 5%.
Foundations with assets above $5 billion: 10%.

However, Section 112022 of the Bill expands the Committee version’s aggregation rules for purposes of the private foundation excise tax not only to include the assets of certain related organizations in determining the applicable rate of tax, but also to include the net investment income of those related organizations to determine the net investment income subject to the tax.
A related organization for these purposes is any organization that controls or is controlled by the private foundation or is controlled by one or more persons that also control the private foundation. As drafted in the Bill, this provision would include any related organization regardless of its tax status. It excludes, however, assets and net investment income from related organizations that are not controlled by the private foundation if the assets and investment income are not intended or available for the use or benefit of the private foundation. When assets are “not intended or available for the use or benefit of the private foundation” is not defined.

Executive Compensation Excise Tax: Like the Committee version, Section 112020 of the Bill expands the application of the excess compensation excise tax to include any employee or former employee of the organization regardless of whether they are (or were) one of the five highest compensated employees and regardless of whether they are (or were) an employee of an “applicable tax-exempt organization.” However, the Bill modifies the definition of “covered employee” for purposes of the executive compensation excise tax to exclude related persons or government entities.

The Bill retains the following provisions from the Committee version without further modification:

Section 112023 (Certain purchases of employee-owned stock disregarded for purposes of foundation tax on excess business holdings).
Section 112024 (Unrelated business taxable income increased by amount of certain fringe benefit expenses for which deduction is disallowed).
Section 112025 (Exclusive of research income limited to publicly available research).
Section 112021 (Modification of excise tax on investment income of certain private colleges and universities).
Section 110112 (Reinstatement of partial deduction for charitable contributions of individuals who do not elect to itemize).
Section 112027 (1% floor on deduction of charitable contributions made by corporations).

California SB 690 Passes California’s Senate, Signaling a Major Step in Redefining Privacy Law and Limiting CIPA Litigation for Online Businesses

On June 3, 2025, the California Senate passed Senate Bill 690 (“SB 690”) in a unanimous 35-0 vote, advancing a measure that would significantly limit lawsuits under the California Invasion of Privacy Act (“CIPA”) against businesses using standard online technologies. Notably, the bill was amended prior to passage to remove its retroactivity provision, meaning it will not apply to pending cases. The bill now moves to the Assembly for further consideration.
Over the last several years, CIPA—originally enacted in 1967 to address wiretapping and eavesdropping—has been repurposed by plaintiffs’ attorneys as a powerful tool to target online businesses for their use of common web technologies such as cookies, pixels, chatbots, and session replay tools. This has resulted in a dramatic surge of lawsuits, often class actions, alleging that these technologies constitute illegal “wiretapping” or the use of “pen registers” and “trap and trace” devices under CIPA. The business community, including small and mid-sized ecommerce companies, has faced a wave of demand letters and litigation, with businesses sometimes being coerced to settle rather than risk the threat of statutory damages and protracted legal battles. These lawsuits have been widely criticized as burdensome and predatory, creating significant legal uncertainty and financial risk for companies operating in California. In response, SB 690 was introduced to protect companies that use online tracking technologies for a commercial business purpose from violating CIPA.
Key Provisions and Scope of SB 690
SB 690 proposes to address this problem by introducing exemptions for activities conducted for “commercial business purposes” from several core CIPA provisions. The bill would exempt from liability the interception or recording of communications when done for a commercial business purpose. It also clarifies that the use of pen registers and trap and trace devices for commercial business purposes does not fall within the scope of CIPA’s prohibitions. Perhaps most significantly, SB 690 would bar private lawsuits for the processing of personal information for a commercial business purpose, effectively eliminating the private right of action for a wide range of CIPA claims related to online business activities.
The definition of “commercial business purpose” in SB 690 is closely tied to the California Consumer Privacy Act (“CCPA”) and the California Privacy Rights Act (“CPRA”). It encompasses the processing of personal information to further a business purpose as defined in the CCPA, such as operational purposes, auditing, security, marketing, and analytics. It also includes activities subject to a consumer’s opt-out rights under the CCPA and CPRA, such as the sale or sharing of personal information. The bill adopts the CCPA’s definitions of “personal information” and “processing,” ensuring consistency across California’s privacy statutes.
A particularly notable feature of SB 690, as originally proposed, was its retroactive application, which would have applied the bill’s provisions to any case pending as of January 1, 2026. However, this retroactivity provision faced significant opposition during the legislative process. On May 29, 2025, just before the Senate vote, the bill was amended to remove the retroactivity language. As passed by the Senate, SB 690 is now silent on retroactive application and would likely only apply prospectively.
The bill now proceeds to the Assembly, where it will undergo committee reviews, three readings, and a final vote. If both houses pass the bill in the same form, it will be sent to the Governor for approval.
Potential Implications for Businesses
The legislative intent behind SB 690 is clear: CIPA was never meant to regulate the types of routine online data collection and analytics now at issue in many lawsuits. Proponents of the bill argue that the CCPA and CPRA provide a comprehensive, modern framework for regulating online privacy, including robust notice and opt-out rights for consumers. SB 690 is intended to harmonize California’s privacy laws, prevent duplicative and conflicting legal standards, and curb abusive litigation that threatens both large and small businesses. By clarifying that business activities already regulated by the CCPA are not within the scope of CIPA, the bill aims to restore legal certainty and allow businesses to focus on compliance with California’s primary privacy statutes, rather than defending against costly and unpredictable CIPA lawsuits.
If enacted, SB 690 would dramatically reduce the risk of CIPA litigation for businesses that use standard online tracking and analytics technologies in compliance with the CCPA and CPRA. This would provide much-needed relief from the lawsuits that have proliferated in recent years, allowing companies to redirect resources away from legal defense of specious claims.
Conclusion
With the Senate’s passage of SB 690 and the removal of the retroactivity provision, the bill represents a significant potential shift in the legal landscape for online businesses operating in California. Its progress and any further amendments will be closely watched by stakeholders across the technology, ecommerce, and privacy sectors.

DON’T MESS WITH TEXAS: Amendment to the Regulation of Telephone Solicitation Sitting on the Gov Desk Might Make it the Next Hot State for Litigation!

Currently, Governor Abbott out of Texas has bill SB140 on his desk awaiting his signature — which will drastically broader Texas’ telemarketing statute and has an effective date of September 1, 2025.
SB140 aims to amend the Texas Business & Commerce code by:

Broadening the definition of “telephone call” and “telephone solicitation” to include texts, image messages, and other transmissions aimed at selling;
adding clarifying language around a consumer’s ability to recoup damages under the statute multiple times: “[t]he fact that a claimant has recovered under a private action arising from a violation of this chapter more than once may not limit recovery in a future legal proceeding in any manner”; and
Adding a provision that allows for a private right of action under the Texas Deceptive Trade Practices and Consumer Protection (DTPA) for failing to abide by call time hours, failing to register as a telemarketer or not honoring opt out requests.

Notably, the use of an automatic dialing announcing devise — an ADAD — will also be enforceable under the DTPA, bringing consumers additional private right of action for either economic damages or damages for mental anguish. Yikes.
Texas has costly enforcement penalties — even higher than the TCPA which can range anywhere from $500 up to $5,000 per violation!
Texas’ telemarketing registration requirements are already the subject of significant litigation across the state. If this bill passes, Texas could quickly emerge as a new epicenter for TCPA and state-level telemarketing lawsuits—rivaling the previous infamous FTSA cases we saw out Florida.
Need help determining whether your business should be registered in Texas or navigating the nuances of state telemarketing laws, we are always happy to help.
In the meantime, we’ll continue to keep an eye out on this one for you.

President Signs EO to Restore Gold Standard for Science, Calls for Reevaluation of Biden Administration’s Scientific Integrity Policies

On May 27, 2025, President Trump signed an Executive Order (EO) on “Restoring Gold Standard Science.” 90 Fed. Reg. 22601. The EO states that the Trump Administration “is committed to restoring a gold standard for science to ensure that federally funded research is transparent, rigorous, and impactful, and that Federal decisions are informed by the most credible, reliable, and impartial scientific evidence available.” The EO restores the scientific integrity policies of the first Trump Administration and “ensures that agencies practice data transparency, acknowledge relevant scientific uncertainties, are transparent about the assumptions and likelihood of scenarios used, approach scientific findings objectively, and communicate scientific data accurately.”
Restoring Gold Standard Science
The EO directs the Director of the White House Office of Science and Technology Policy (OSTP), in consultation with the heads of relevant agencies, to issue guidance within 30 days for agencies on implementing “Gold Standard Science” in the conduct and management of their respective scientific activities. The EO defines Gold Standard Science as science conducted in a manner that is reproducible; transparent; communicative of error and uncertainty; collaborative and interdisciplinary; skeptical of its findings and assumptions; structured for falsifiability of hypotheses; subject to unbiased peer review; accepting of negative results as positive outcomes; and without conflicts of interest. Once OSTP publishes the guidance, the EO directs each agency head to update promptly applicable agency policies governing the production and use of scientific information, including scientific integrity policies, to implement the OSTP Director’s guidance. Within 60 days of the publication of OSTP’s guidance, agency heads must report to the OSTP Director on the actions taken to implement Gold Standard Science at their agency.
Improving the Use, Interpretation, and Communication of Scientific Data
Within 30 days after the date of the EO, agency heads and employees must adhere to the following rules governing the use, interpretation, and communication of scientific data, unless otherwise provided by law:

Employees shall not engage in scientific misconduct nor knowingly rely on information resulting from scientific misconduct;
Except as prohibited by law, and consistent with relevant policies that protect national security or sensitive personal or confidential business information (CBI), agency heads shall in a timely manner and, to the extent practicable and within the agency’s authority;

Make publicly available the following information within the agency’s possession:

The data, analyses, and conclusions associated with scientific and technological information produced or used by the agency that the agency reasonably assesses will have a clear and substantial effect on important public policies or important private sector decisions (influential scientific information), including data cited in peer-reviewed literature; and

The models and analyses (including the source code for such models) the agency used to generate such influential scientific information. The EO states that employees may not invoke exemption 5 to the Freedom of Information Act (FOIA) to prevent disclosure of such models unless authorized in writing to do so by the agency head following prior notice to the OSTP Director;

Risk models used to guide agency enforcement actions or select enforcement targets are not information that must be disclosed under this subsection;

When using scientific information in agency decision-making, employees must transparently acknowledge and document uncertainties, including how uncertainty propagates throughout any models used in the analysis;
Where employees produce or use scientific information to inform policy or legal determinations they must use science that comports with the legal standards applicable to those determinations, including when agencies evaluate the realistic or reasonably foreseeable effects of an action;
Employees must be transparent about the likelihood of the assumptions and scenarios used. The EO states that “[h]ighly unlikely and overly precautionary assumptions and scenarios should only be relied upon in agency decision-making where required by law or otherwise pertinent to the agency’s action”;
When scientific or technological information is used to inform agency evaluations and subsequent decision-making, employees shall apply a “weight of scientific evidence” approach;
Employees’ communication of scientific information must be consistent with the results of the relevant analysis and evaluation and, to the extent that uncertainty is present, the degree of uncertainty should be communicated. The EO notes that “[c]ommunications involving a scientific model or information derived from a scientific model should include reference to any material assumptions that inform the model’s outputs”; and
Once the guidance on Gold Standard Science is established and promulgated, it shall, among other things, form the basis for employees’ evaluation of all scientific and technological information called for in the EO except where otherwise required by law.

Interim Scientific Integrity Policies
Until the issuance of updated agency scientific integrity policies, the EO states that scientific integrity policies in each agency must be governed by the scientific integrity policies that existed within the executive branch on January 19, 2021. The EO directs agency heads to take all necessary actions to reevaluate and, where necessary, revise or rescind scientific integrity policies or procedures, or amendments to such policies or procedures, issued between January 20, 2021, and January 20, 2025. Under the EO, each agency head must promptly revoke any organizational or operational changes, designations, or documents that were issued or enacted pursuant to the Presidential Memorandum of January 27, 2021 (Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking), which was revoked pursuant to EO 14154 and shall conduct applicable agency operations in the manner and revert applicable agency organization to the same form as would have existed in the absence of such changes, designations, or documents.
In updating applicable scientific integrity policies, the EO directs agencies to ensure they:

Encourage the open exchange of ideas;
Provide for consideration of different or dissenting viewpoints; and
Protect employees from efforts to prevent or deter consideration of alternative scientific opinions.

Agencies must review agency actions taken between January 20, 2021, and January 20, 2025, including regulations, guidance documents, policies, and scientific evaluations, and take all appropriate steps, consistent with law, to ensure alignment with the policies and requirements of the EO.
Scope and Applicability
The policies and rules set forth in the EO apply to all employees involved in the generation, use, interpretation, or communication of scientific information, regardless of job classification, and to all agency decision-making. Agency heads and employees must, to the extent practicable and consistent with applicable law, require agency contractors to adhere to these policies and rules as though they were agency employees. The EO’s policies and rules govern the use of science that informs agency decisions, but the EO notes that “they are not applicable to non-scientific aspects of agency decision-making.”
Enforcement and Oversight
The EO requires each agency head to establish internal processes to evaluate alleged violations of the requirements of the EO and other applicable agency policies governing the generation, use, interpretation, and communication of scientific information. Such processes will be the responsibility, and administered under the direction, of a senior appointee designated by the agency head and shall provide for taking appropriate measures to correct scientific information in response to violations, consistent with the requirements and procedures of Section 515 of the Information Quality Act (IQA). According to the EO, the designated senior appointee may also forward potential violations to the relevant human resources officials for discipline to the extent the potential violation also violates applicable agency policies and procedures. The designated senior appointee may consult appropriate officials with scientific expertise when establishing such processes.
Commentary
There is no serious disagreement with the idea of conducting and relying upon quality science. Quality science is non-partisan. The challenge is not with the goal, it is with defining “best available science” as, like so many qualitative terms, it is in the eye of the beholder. Too often, individuals rely on preferred science. It is human nature to be more open to data that confirm your perspective and less receptive to data that refute your view. Scientists must remain open to different views and different interpretations of data. Doing otherwise fundamentally undermines science.
The objection to “secret science” must also be carefully explored. It can be used to diminish the value of quality studies even though there are legitimate reasons for information in those studies to be maintained as confidential. Most would agree that individual identities in an epidemiological study, for example, are legitimately confidential based on individual privacy concerns. In a different case, the name of the sponsor that funded a study conducted according to Good Laboratory Practice (GLP) standards is not needed to evaluate the quality of the study. GLP protocols were established to minimize a study sponsor’s influence on the outcome or interpretation of a study. GLP protocols are arguably more protective of the best available science than peer review. One can reasonably assume that the sponsor of a GLP study has a financial interest in that study, so knowing the specific identity of the sponsor neither adds nor detracts from another’s interpretation of the study. If data are only valid if they align with your views, you are not relying on the best available science. We hope that the EO will be heeded by agencies and departments, and that decisions will be based on the best available science.
We, like many others, struggle with understanding a commitment to science with the Administration’s dramatic reduction in the executive branch’s scientific expertise. These are two realities difficult to rationalize. Can the goal be achieved when the means are undermined? Federal science agencies have been a bastion of outstanding science and scientists. Even if there are some examples of science generated by federal efforts (in-house or through contracts and grants) not perfectly meeting the standard of “best available science,” the solution can only be realized through better science.

Florida’s Employer-Friendly “CHOICE” Act Establishes New Protections for Garden Leave and Noncompete Agreements (US)

On April 24, 2025, Florida lawmakers passed business-friendly legislation that impacts Florida’s regulation of noncompete and garden leave agreements and expands employer enforcement power for such agreements. The bill creates the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act, which governs two types of agreements: (1) covered garden leave agreements and (2) covered noncompete agreements. Both types of agreements protect the confidentiality of employer information and client relationships, but differ as to when the protection applies; covered garden leave agreements apply while an employee remains employed with the employer, whereas covered noncompete agreements apply after an employee has left employment. Under the CHOICE Act, there is a presumption that covered noncompete and garden leave agreements with a duration of up to four years are enforceable so long as certain technical requirements are followed. The bill, awaiting Governor Ron DeSantis’s signature, is set to take effect on July 1, 2025.
Who is covered under the CHOICE Act?
The new legislation applies to certain high-earning employees and their employers, specifically, “covered employees” and “covered employers.” A “covered employer” is any employer who employs or engages with a covered employee. A “covered employee” is an employee or individual contractor who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of the Florida county where the employer maintains its principal place of business, or the Florida county where the employee resides, if the employer’s principal place of business is not located in Florida. (Note that healthcare practitioners are explicitly excluded from this definition.)
Covered garden leave agreements
“Garden leave” refers to a period defined by contract when an employee typically completes little to no work but remains employed and receives normal salary and benefits. During this period, an employee on garden leave cannot work for a competitor because the employee is still bound by the contractual terms of their employment, including applicable confidentiality obligations, a duty of loyalty, or other similar restrictions. Thus, garden leave precludes an employee from using their employer’s proprietary information to gain a competitive advantage in another venture, which protects the employer’s business interests.
Under the CHOICE Act, a “covered garden leave agreement” is a written agreement or a provision within a contract between an employee and employer where the employer is required to retain the employee on payroll for a period of up to four years but is not permitted to assign work. The agreement is fully enforceable if:

the covered employee was advised in writing of the right to seek legal counsel before execution of the agreement and was provided at least seven days to review the agreement;
the covered employee acknowledges, in writing, receipt of confidential information or customer relationships; and
the covered garden leave agreement provides that:

after the first 90 days of the notice period (the date from the employer or employee’s written notice of intent to terminate the employee’s employment through the date of termination designated in the garden leave agreement), the covered employee does not have to provide services to the employer;
the employee may engage in nonwork activities, like travel or a hobby, at any time during the remainder of the notice period;
the covered employee may, with the permission of the covered employer, work for another employer while still employed by the covered employer during the remainder of the notice period; and
the garden leave agreement notice period may be reduced during the notice period if the covered employer provides at least 30 days advance notice in writing to the covered employee.

Covered noncompete agreements
A noncompete agreement refers to an agreement between an employer and an employee that restricts the employee’s post-employment work activities. Employers use noncompete agreements to provide greater assurances that their confidential and proprietary business information and valuable customer relationships will not be accessible to competitors for a defined period of time.
The CHOICE Act permits covered noncompete agreements that restrict a covered employee from working for another employer for up to four years if the covered employee would provide similar services in the new role or it is reasonably likely the covered employee would use the covered employer’s confidential information or customer relationships in their new role.
Under the CHOICE Act, a “covered noncompete agreement” is fully enforceable if:

the employee was advised, in writing, of the right to seek legal counsel before execution of the agreement and was provided at least seven days to review the agreement;
the employee acknowledges, in writing, that in the course of employment the employee will receive confidential information or customer relationships; and
the agreement provides that the noncompete period is reduced day-for-day by any nonworking portion of a concurrent covered garden leave agreement, if applicable.

Enforcing covered agreements under the CHOICE Act
Notably, the CHOICE Act creates a presumption that covered noncompete and garden leave agreements that are reasonable in geographic scope are enforceable and do not violate public policy, placing the burden on the employee to show that the agreement should not be enforced. The CHOICE Act also empowers employers to enjoin alleged violations by any employee subject to a covered agreement, including both former employees bound by a noncompete and current employees on garden leave.
Specifically, upon a covered employer’s application seeking enforcement of a covered agreement, a court must preliminarily restrain a covered employee from providing services to another employer during the notice period. The court may then modify or dissolve the injunction only if the covered employee establishes by clear and convincing evidence that:

the covered employee will not use confidential information or customer relationships of the covered employer or provide services similar to that provided to the covered employer;
the covered employer failed to pay the salary or grant the benefits provided for in a covered agreement; or
the new employer is not engaged or preparing to engage in similar business activity within the geographic area.

Key Steps for Employers
While this new legislation is good news for Florida employers, it is important to remember that noncompete enforceability varies by state, with some states like California, Massachusetts, and New York strongly disfavoring (and in some cases outright prohibiting) such agreements. Thus, employers should always consult legal counsel when drafting such agreements – particularly when hiring remote or employees working in more than one state – rather than using form noncompete agreements that may be unenforceable in some jurisdictions. With several states, like Florida, reversing the general trend of limiting similar types of restrictive covenants, employers must navigate an increasingly complex legal environment, and employers and employees alike should be cognizant of the impending changes as they look to adhere to and capitalize on the new legal landscape. Florida employers wanting to take advantage of these expanded protections should review their current noncompete and garden leave practices to ensure compliance with this new legislation.

Blockchain+ Bi-Weekly; Highlights of the Last Two Weeks in Web3 Law: June 5, 2025

The most important development of the last two weeks is likely the release of a revised bipartisan digital asset market structure bill in Congress, which now gives real momentum to the possibility of comprehensive legislation. At the same time, the SEC is continuing to reposition its posture, pulling back from aggressive litigation, acknowledging areas outside its jurisdiction such as staking, and signaling a more measured approach as we await the first report from its new Crypto Task Force. Meanwhile, the courts continue to shape the legal boundaries of decentralized finance, as seen in the closely watched ruling overturning fraud charges in the Mango Markets case.
These developments and a few other brief notes are discussed below.
Bipartisan Market Structure (“CLARITY Act”) Bill Text Released: May 29, 2025
Background: After releasing draft language of an unnamed market structure bill a few weeks ago, a revised and now titled version, the CLARITY Act, dropped last week. Sponsored by House Financial Services Committee Chair French Hill, the bill has five Republican and three Democratic co-sponsors, all members of either the House Financial Services or House Agriculture Committees. It is expected to be fast-tracked for markup in the Financial Services Committee, as early as June 10th, so this could move quickly through committees. Broader House timing remains unclear, however, as Congressional attention is divided among numerous competing priorities beyond digital asset regulation.
Analysis: The sponsors appear to have seriously considered industry feedback, and several technology-specific issues flagged in the prior version were meaningfully addressed. For example, many pointed to the definition of “Decentralized Finance Trading Protocol,” previously criticized as overly broad, has been revised and now more closely tracks the drafters’ likely intent. There was a hearing earlier this week in the House Financial Services Committee (which we will cover in the next Bi-Weekly update), which was designed to discuss digital asset regulation more broadly but focused heavily on this bill as well.
SEC Releases Guidance That Certain Proof of Stake Staking Activities Do Not Implicate Securities Laws: May 29, 2025
Background: The SEC Division of Corporate Finance put out a “Statement on Certain Protocol Staking Activities” clarifying its view that certain proof-of-stake blockchain protocol “staking” activities are not securities transactions within the scope of the federal securities laws. This follows related guidance on Proof-of-Work mining which was put out in March. “Accordingly, it is the Division’s view that participants in Protocol Staking Activities do not need to register with the Commission transactions under the Securities Act or fall within one of the Securities Act’s exemptions from registration in connection with these Protocol Staking Activities.”
Analysis: This likely clears the way for staking in ETH ETFs or other ETFs linked to proof-of-stake blockchain assets, which may be approved in the near future (although there are still tax and other securities law issues that could make this complicated). It is unclear how this might affect the prior Kraken consent order, as many of the staking services offered by Kraken now appear to be “Ancillary Services” under this guidance. It is great to see all this guidance coming out, but until the guidance is formalized into rulemaking or until there is action from Congress in this area, then the industry is left with few, if any, assurances those viewpoints will continue under different leadership.
SEC Moves to Dismiss Binance Case with Prejudice: May 29, 2025
Background: The SEC has asked the Court to dismiss the agency’s case against the various Binance entities and its founder, Changpeng Zhao (“CZ”), with prejudice, which would bring an end to the cases brought under the prior administration against the biggest U.S. digital asset exchanges, which we have been covering on the BiBlog. This follows previously dismissing cases against Coinbase and Kraken and closing investigations into OpenSea, Circle, and others shortly after the change in administration and resignation of prior SEC Chair Gary Gensler.
Analysis: As we noted in our 2024 year-end digital asset rundown, the cases against various exchanges were bet-the-company litigation for all the exchanges sued. If it was ruled that sales on the platforms of exceedingly common tokens like SOL were securities transactions, that would have made it difficult for most individuals to transact in digital assets in the United States, particularly those lacking experience interacting with decentralized finance. With these lawsuits behind the exchanges, all eyes turn to formal guidance and rulemaking from the SEC/CFTC and whether there will be comprehensive digital asset legislation out of Congress, which is currently being considered by both chambers.
Conviction Overturned in Mango Markets Exploit: May 23, 2025
Background: District Court Judge Arun Subramanian has overturned the fraud convictions against Mango Markets exploiter Avraham (“Avi”) Eisenberg, ruling that venue was improper since there was no evidence that the routing engine for Avi’s trades were in New York. The more interesting ruling, though, was finding there was insufficient evidence of falsity to support a wire-fraud charge (see ruling starting at pg. 26). The Court ruled that because the user terms and conditions didn’t make intent to repay a condition upon borrowing, and because Avi didn’t make any false representations about the value of his assets (he just exploited an oracle into making those false representations for him), the government could not support a fraud conviction, ruling “[o]n a platform with no rules, instructions, or prohibitions about borrowing, the government needed more to show that Eisenberg made an implicit misrepresentation by allowing the algorithm to measure the actual value of his collateral.”
Analysis: This case raises broader questions about what level of human interaction is needed for “wire fraud,” where the alleged fraud is primarily being perpetrated against an algorithm and not a person. There remains the issue that Avi sued Numeris, Ltd. before the Mango Markets trading activities, claiming it was fraud for others to artificially increase the price of tokens to borrow against knowingly inflated values, similar to what Avi did in his exploit. It seems disingenuous to claim “code is law” for his actions while he previously asked the government to save his funds when a protocol that he was using had a similar exploit. Avi is still going to jail on other charges to which he pled guilty. It will be interesting to see how the case law regarding the extent “code-is-law” holds up in the use of permissionless protocols.
Briefly Noted:
401K and Bitcoin Reserve Updates: The Department of Labor has retracted guidance discouraging retirement managers from considering cryptocurrency as an investment option in 401(k) plans. This came as Whitehouse Crypto Czar David Sacks was at a major Bitcoin conference in Vegas where he talked about how the announced Bitcoin strategic reserve is progressing.
Reputational Risk Ban Passes House Committee: The House Financial Services Committee advanced on a 33-19 bipartisan vote a bill that would prohibit federal banking agencies from considering “reputational risk” when supervising, examining, or regulating depository institutions.
SEC Crypto Task Force Updates: The SEC is set to release its first Crypto Task Force Report in the upcoming months; meanwhile Commissioner Peirce delivered a great speech about the importance of the SEC setting clear rules of the road for the space (including noting where the SEC doesn’t have jurisdiction).
Emmer and Torres Reintroduce Right to Code Law: Tom Emmer (R-MN) and Ritchie Torres (D-NY) have reintroduced legislation that would protect the developers of non-custodial blockchain software developers and providers from being classified as money transmitters. This would be huge in convincing developers to stay in the United States when developing blockchain-enabled technologies.
CFTC U.S. Persons Guidance: The CFTC put out some helpful guidance on what they consider to be U.S. persons subject to CFTC jurisdiction in an internet age. This guidance provides that where the company’s high-level officers primarily direct, control, and coordinate the company’s activities is most important for determining whether the company is considered a domestic entity for CFTC jurisdictional purposes.
SafeMoon CEO Found Guilty of Fraud: Braden Karony, the former CEO of SafeMoon, was convicted on three counts of fraud after he was ruled to have diverted millions of tokens, which he said were “locked,” and sold those tokens for personal gain.
Investment Company Act Status of ETFs Questioned: The SEC Division of Investment Management, in a letter to a crypto ETF operator, stated that, in light of recent developments, it is unsure that the ETFs are investment companies that can register under the Investment Company Act of 1940. Generally, a company wouldn’t be an investment company if, among other things, less than 40% of its assets constituted investment securities. Registration statements, application requirements, and ongoing reporting requirements are different for investment companies and other issuers, and certain crypto ETFs (including Bitcoin ETFs) already register as non-investment companies. This calls into question whether the SEC might be exploring rule changes more tailored towards this type of entity.
Conclusion:
These developments mark a potential turning point in the digital asset regulatory landscape. With Congress moving forward on bipartisan legislation like the CLARITY Act and federal agencies such as the SEC and CFTC issuing meaningful (if still preliminary) guidance, the pieces of a more coherent framework are starting to take shape. However, the regulatory environment remains fragmented and uncertain, especially absent formal rulemaking or statutory clarity. As agencies shift direction and courts weigh in on key enforcement matters, market participants should remain vigilant, engage with regulators, and prepare for a fast-evolving legal landscape where the line between code and law continues to be tested.

SB 840: A Game-Changer for Multifamily Development and Land Use in Texas Cities – Zoning Regulation Reform

The Texas legislature recently passed SB 840, which now heads to Governor Abbott’s desk for signature. There are distinct advantages for developers who move strategically and quickly to capitalize on this opportunity.
SB 840 stands to be one of the most transformative legislative changes affecting how certain Texas cities regulate multifamily housing development as it: (i) opens existing developed sites and projects for multi-family development; (ii) clears regulations that may require zoning district reclassification or amendments, exceptions, or variances approvals to a particular zoning district; (iii) eases the ability to convert existing buildings intended for commercial use into multi-family uses; (iv) causes municipalities to assess, evaluate, and respond to this new paradigm shift which will impact adopted comprehensive plans and city development and growth plans; and (v) leaves cities to navigate infrastructure challenges which will likely result in a rollout of new local rules designed to navigate the bill’s impact.
At its core, the bill allows multifamily housing to be built or existing buildings to be converted in areas zoned for commercial, office, warehouse, retail, or mixed-use without the need to rezone (as rezoning can be, and frequently is, opposed by surrounding communities) – essentially allowing multifamily housing use by right.
Developers that are interested in building new multifamily projects or converting existing commercial buildings (such as unused office buildings) into multifamily units stand to benefit while developers that felt insulated by favorable zoning districts surrounding their multifamily developments that limited the scope of any new multifamily developments may feel their economic models as being threatened.
Key highlights from the perspective of developers include:

Select Cities Only. The bill applies only to cities with populations of 150,000 or more that sit in a county with populations of 300,000 or more (which results in the impact being limited to less than 20 cities across Texas including McKinney, Frisco, Irving, Plano, Arlington, Dallas, Fort Worth, Austin, San Antonio, and Houston).
Administrative Focus. The bill is designed to avoid the need to seek amendments or variances and rather have permits and authorization administratively approved.
Density. Multifamily density can be (1) the highest multifamily density allowed in the municipality, or (2) 36 units per acre, whichever is greater.

Since cities have allowed for higher densities in select projects, this may result in all projects city-wide receiving the same favorable treatment.

Height. Height limits for multifamily developments can be: (1) the tallest building height allowed on the site by the zoning code, or (2) 45 feet, whichever is greater.
Setbacks. Setbacks cannot exceed: (1) the required setback for buildings on the site by the zoning code, or (2) 25 feet, whichever is lesser.
Parking. Parking requirements cannot surpass 1 space per dwelling unit or require a multi-level parking structure.
FARs. No imposition on the ratio of total building floor area to lot size.
Waiver of Fees. Certain fees (e.g., building permit, street closure, expedited review, impact, and parkland dedication fees) in connection with building conversions will not be required.
Waiver of Studies and Mitigation. Certain studies (e.g., traffic) and mitigation requirements (e.g., additional parking, mitigating traffic effects, etc.) in connection with building conversions will not be required.

We have previously reported on similar programs and legislation across the nation.

New York Enacts Landmark Buy Now Pay Later Regulation Amid Federal Regulatory Recalibration

Go-To Guide:

As part of its FY 2026 budget, New York has enacted legislation to regulate Buy Now, Pay Later (BNPL) products and providers.
In addition to creating a new licensing regime, the legislation mandates that the New York Department of Financial Services (NYDFS) superintendent promulgate rules to establish capital adequacy requirements and maximum allowable interest, charges, and fees.
The law also empowers the superintendent to promulgate other rules for its implementation.
The new law’s effective date hinges on NYDFS rulemaking, set to occur six months after promulgation of the implementing rules.

In a significant consumer protection move, New York has enacted legislation within its FY 2026 budget to regulate BNPL products — installment-style credit often offered at the point of sale — potentially creating the most comprehensive state licensing framework for BNPL providers. At the same time, the federal Consumer Financial Protection Bureau (CFPB) has signaled a marked deprioritization of enforcement in this space, foreshadowing a fragmented regulatory landscape that may place the burden of oversight increasingly on state actors.
New York’s New Article 14-B: A New Regulatory Regime for BNPL
The new law adds Article 14-B to the New York Banking Law, requiring BNPL providers to obtain a license from the NYDFS before operating in the state. These providers must comply with regulatory expectations akin to traditional lenders — a signal that New York is treating BNPL not as a fintech novelty but as a core part of the consumer credit ecosystem.
The law empowers NYDFS to set forth:

Licensing requirements and procedures;
Capital adequacy and financial condition metrics;
Maximum allowable amounts for interest, charges, and fees;
Mandatory consumer disclosures; and
Operational compliance, examination authority, and enforcement mechanisms

These requirements bring BNPL providers under a similar level of scrutiny as licensed lenders, reflecting a policy judgment that BNPL poses systemic risks similar to traditional credit products.
Effective Date Hinges on DFS Rulemaking: A Tactical Delay
Critically, the law does not take effect immediately. Section 13 of the bill provides that: “This act shall take effect on the one hundred eightieth day after the department of financial services shall have promulgated rules and/or regulations to effectuate the provisions of this act…”
In other words, the effective date is deferred until six months after NYDFS promulgates implementing regulations — a rare but strategic legislative mechanism that defers legal effect until the administrative framework is mature.
This structure offers NYDFS runway to draft, circulate, and finalize rules through a public comment process. Importantly, the law also allows NYDFS to begin rulemaking immediately, even before the act technically becomes effective, which ensures the department can act swiftly without procedural delay.
Why This Timing Mechanism Is Important
At first glance, tying the effective date to rulemaking may seem like legislative housekeeping. But this design is more than procedural convenience — it is a calculated legal architecture that:

Avoids Regulatory Void: Without pre-promulgated rules, providers and regulators would face legal uncertainty, potentially risking either premature enforcement or delayed consumer protections.
Reduces Constitutional Risk: By withholding the effective date until NYDFS has defined operational rules, the law may reduce risk of vagueness challenges under procedural due process doctrines (particularly under New York’s Constitution, which grants broad property and liberty rights in commercial activity).
Aligns Enforcement Cadence: Providers will not be penalized for noncompliance before they understand the full scope of their obligations, protecting against retroactive enforcement and supporting compliance-based supervision over punishment.
Signals Administrative Independence: By structuring the law this way, the legislature has implicitly entrusted NYDFS with a quasi-legislative role in shaping the financial contours of BNPL, indicating a flexible and adaptive regulatory model. This model mirrors forward-compatible governance, often used in high-velocity tech sectors, where statutes are drafted to defer critical substance to expert agencies.

A Divergence at the Federal Level
While New York advances state oversight, the federal government is retreating from BNPL enforcement. On May 6, 2025, the CFPB announced it will “not prioritize enforcement” of its prior interpretive rule applying Regulation Z (Truth in Lending Act) to BNPL loans. It cited a strategic reallocation of enforcement priorities and noted that it is considering rescinding the interpretive rule entirely.
This federal posture leaves a vacuum at the national level, which may result in regulatory divergence across states — a return to a regulatory patchwork reminiscent of early consumer lending before Dodd-Frank.
The New BNPL Chessboard: Strategic Takeaways

For BNPL Providers: Firms may need to retool operations to comply with New York’s eventual rules, including capital buffers, transparent disclosures, and potentially restructuring fee models. Larger firms may consider segmenting New York into its own compliance regime, not unlike what multinational banks do with the EU GDPR framework.
For Other States: New York’s framework might serve as a regulatory blueprint for other states to follow suit, especially in light of federal inaction.
For Consumers: New York consumers may see clearer terms, stronger protections in dispute resolution, and perhaps a slowdown in aggressive marketing. There may also be spillover benefits nationally if large BNPL firms adopt New York’s rules as their operational standard.

Conclusion
New York’s FY 2026 BNPL law is more than a state-level licensing requirement — it is a move to reclassify BNPL as a core financial product requiring systemic oversight. By coupling regulatory authority with a delayed effective date and high administrative discretion, the state has set the stage for a durable, adaptable regime that may influence national norms.
In contrast, the CFPB’s retreat reflects a broader shift in federal financial policy — one that may usher in a new era of state-led consumer protection in financial technology, with a focus on rulemaking rather than enforcement. For regulators, providers, and consumers alike, the BNPL chessboard has just been reset.