Litigation / Trial Practice – Page 12

Trump Revokes Biden Federal Contractor Minimum Wage Mandate: What to Expect Next

Takeaways

President Trump has rescinded President Biden’s 2021 executive order increasing the minimum wage for employees of federal contractors.
The minimum wage is now $13.30 per hour for federal contractors covered by President Obama’s 2014 executive order, which remains in effect.
Trump’s action does not formally revoke a Department of Labor rule implementing Biden’s wage mandate. However, there is no longer a basis for enforcing the rule.

EEOC Enforcement Activities Take Shape Under Second Trump Administration

The Equal Employment Opportunity Commission (EEOC) has been a regular topic of the flurry of executive orders issued by President Trump since his inauguration. Even before his return to the Oval Office, there was speculation about how the EEOC’s enforcement activities and priorities might change during a second Trump administration, as well as how the composition of the EEOC’s leadership would likely transform. In the weeks following the inauguration, the EEOC’s goals began to take shape, with its leadership seeing significant rearrangement. Manufacturers should stay current on these modifications as they signal substantial changes in the agency’s policies and anticipated future enforcement priorities and initiatives.
On January 24, 2025, President Trump dismissed two of the EEOC’s Democratic Commissioners and appointed Andrea Lucas as Acting Chair, leaving one Democratic Commissioner and one vacancy. The EEOC’s current leadership composition means it lacks a quorum and cannot issue regulations or guidance, or rescind or replace regulations or guidance issued by the previous administration. Importantly, these changes do not affect the EEOC’s ability to engage in enforcement activities.
Prior to President Trump’s second term, it was anticipated that the EEOC was preparing to scale back protections for LGBTQ+ workers. This shift came to fruition beginning in February, when the EEOC moved to voluntarily dismiss six lawsuits that it had filed during the Biden administration on behalf of aggrieved plaintiffs, alleging discrimination based on transgender status in violation of Title VII of the Civil Rights Act of 1964. In withdrawing from its representation, the EEOC noted in filings that continued litigation is untenable “in light of recent [a]dministration policy changes.” The EEOC’s voluntary dismissal of the lawsuits represents a major departure from its prior interpretation of the protections afforded under Title VII and its guidance issued during the Biden administration, in which the EEOC took the position that the intentional misuse of an employee’s preferred pronouns constituted discrimination and harassment.
Although the EEOC has chosen to step back from its representation of the plaintiffs in these lawsuits, the same federal law that authorizes the EEOC to sue on their behalf also provides the plaintiffs with a right to intervene in and pursue the litigation on their own behalf.
In light of these developments, manufacturers should remain aware of the following when making decisions related to the recruitment, hiring, and termination, as well as other terms and conditions of employment:

Although the EEOC may change its enforcement priorities, an executive order cannot override federal laws and constitutional rights. This includes the federal law authorizing individuals to intervene in litigation brought by the EEOC and pursue litigation on their own behalf as well as the Supreme Court’s holding in Bostock v. Clayton County, 590 U.S. 644 (2020), that discrimination based on sexual orientation or gender identity constitutes “sex discrimination” in violation of Title VII.
The federal government’s labor and employment law enforcement activities and policies are separate from those of state and local governments, which may continue or even increase their efforts in reaction to changes at the federal level.
It is possible that the EEOC’s enforcement activities will continue to change, so it is crucial for manufacturers to stay current on executive orders, guidance, and enforcement initiatives at the federal level.

Manufacturers should consult competent employment counsel for assistance with regard to the EEOC’s enforcement initiatives, guidance, and other communications.

Top Five Labor Law Developments for February 2025

A federal judge for the District of Columbia held President Donald Trump’s termination of National Labor Relations Board Member Gwynne Wilcox violated the National Labor Relations Act; Wilcox’s reinstatement restores Board quorum. Wilcox v. Trump and Kaplan, No. 1:25-cv-00334 (D.D.C Mar. 6, 2025). The decision stems from President Trump’s removal of Wilcox as a Board member prior to the expiration of her term. In her lawsuit, Wilcox argued her unprecedented removal violated the Act, which allows the president to remove Board members only in cases of “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing.” Wilcox cited for support the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor, in which the Court upheld the constitutionality of for-cause removal protections for federal agency leaders. The Trump Administration filed a Notice of Appeal with the D.C. District Court shortly after the judge’s decision. In the meantime, Wilcox’s return restores the Board’s three-member quorum, and it can resume issuing decisions.
Acting Board General Counsel (GC) William Cowen issued a memorandum rescinding dozens of former GC Jennifer Abruzzo’s enforcement initiatives. GC Memo 25-05. The memo signals Cowen’s intention to undo many of Abruzzo’s policies, including those related to protected concerted activities, settlement agreements, and employment agreement provisions like “stay-or-pay” provisions. While GC memos do not reverse Board decisions, the memo indicates the GC will interpret the law and act in a manner more favorable to employers’ interests. The memo also aims to address the Board’s unsustainable case backlog, largely due to the prior administration’s expansive enforcement priorities. Overall, GC Memo 25-05 impacts 31 GC memos issued between 2021 and 2025. It is likely the Board’s regional offices will no longer prosecute cases seeking to overturn longstanding Board law in favor of more employee-friendly standards.
The U.S. Senate confirmed Trump’s nominee for the U.S. Department of Labor (DOL) Secretary — former U.S. Representative Lori Chavez-DeRemer — by a 67-32 vote. Chavez-DeRemer’s nomination faced criticism from business groups and Republican lawmakers due to her previous support for the Protecting the Right to Organize (PRO) Act, which would significantly expand union organizing rights if passed. However, Chavez-DeRemer backtracked on her support for the PRO Act during the Senate Health, Education, Labor, and Pensions Committee hearing. Chavez-DeRemer has since committed to preserving states’ right-to-work laws and protecting independent contractor and franchise models.
The International Longshoremen’s Association (ILA) ratified a six-year contract with the U.S. Maritime Alliance (USMX), with almost 99 percent of members voting in favor of the agreement. The contract provides job guarantees amid concerns that automated technology would replace many union jobs. It also provides a 62 percent pay raise that was agreed to prior to a three-day strike in October 2024. Both parties previously praised President Trump for his assistance in helping the parties reach an agreement. The contract, which covers approximately 45,000 workers, will be effective through Sept. 30, 2030. Ratification also prevents another port strike that would have disrupted the nation’s supply chain.
The Board issued a “Return to Office Policy” requiring workers to return to the office full-time by March 31, 2025, according to a letter obtained by Law360. The Board cited guidance from the Office of Personnel Management and a recent Trump memorandum as the basis for the decision. Exceptions to the policy include accommodations under the Rehabilitation Act and temporary medical conditions. The policy has sparked backlash from the unions representing Board workers, including the NLRB Professional Association, which argue the policy violates their collective bargaining agreements. Acting GC Cowen recently stated that, while he will do what he can to prevent a reduction in the Board’s staff, the Agency is not immune from layoffs.

The Headless PAGA Saga Continues

On February 26, 2025, in Parra Rodriguez v. Packers Sanitation, Inc., the California Court of Appeal (Fourth Appellate District) issued the latest published decision addressing the practice of filing so-called “headless” Private Attorneys General Act (PAGA) claims. In such cases, the plaintiff seeks civil penalties for all allegedly aggrieved employees except themself. In the wake of Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022), this tactic has become increasingly common among plaintiffs seeking to circumvent contractual obligations to submit “individual” PAGA claims to arbitration.
The Parra Rodriguez decision added some fuel to the headless PAGA debate by upholding a Superior Court order denying a motion to compel a headless PAGA claim to arbitration, concluding that because only an individual PAGA claim can be compelled to arbitration, there is nothing to arbitrate when no individual PAGA claim is pled.
In doing so, Parra Rodriguez created a split of authority with Leeper v. Shipt, Inc., decided December 30, 2024, by the Second Appellate District. In Leeper, the court held that a PAGA claim cannot be headless, because “the unambiguous language in section 2699, subdivision (a), [states that] any PAGA action necessarily includes both an individual PAGA claim and a representative PAGA claim” (emphasis added). Under the reasoning of Leeper, where a defendant moves to compel arbitration of a headless PAGA claim, the individual PAGA claim is implicitly pled, and may be compelled to arbitration.
While a split unquestionably exists between Parra Rodriguez and Leeper regarding what courts should do when a defendant moves to compel arbitration of a headless PAGA claim, practitioners and courts should not overread these decisions as differing on whether it is procedurally proper to plead a headless PAGA claim in the first place. By concluding that a PAGA claim necessarily includes an individual component, Leeper clearly answers this question in the negative. By contrast, Parra Rodriguez expressly avoided that question, leaving open the possibility that a complaint pleading a headless PAGA claim “fails to comply” with PAGA’s pleading requirements, exposing it to “an appropriate pleading challenge.”
Nor does Balderas v. Fresh Start Harvesting, Inc., 101 Cal. App. 5th 533 (2024) contradict Leeper. In Balderas, the Second Appellate District held that a plaintiff had standing to pursue a representative PAGA action on behalf of other employees despite not filing an individual action seeking PAGA relief for herself. But the issue of standing merely concerns who may pursue a claim, not whether the statute permits a claim to be pled in headless fashion.
Parra Rodriguez may very well incentivize plaintiffs to continue the practice of pleading headless PAGA claims. Its disagreement with Leeper on how to handle motions to compel arbitration in this context injects new uncertainty into this issue and increases the likelihood that the California Supreme Court will take up the issue. But for the moment, the only published appellate authority coming to a holding regarding whether a plaintiff may properly plead a headless PAGA claim is Leeper, which holds that a plaintiff may not.
We will continue to monitor developments in this space and provide updates.

Federal Circuit Decision Could Encourage More Reissue Patents

The Patent Term Extension (PTE) provisions of 35 U.S.C. § 156 compensate pharmaceutical patent owners for time they are not able to enjoy commercial market exclusivity because their products are not yet approved by the U.S. Food and Drug Administration (FDA). The length of a PTE award depends on how much time was spent under FDA review after the patent was issued. But which issue date is used for a reissued patent? In Merck Sharp & Dohme B.V. v. Aurobindo Pharma USA, Inc., the Federal Circuit decided that the earlier issue date of the original patent should be used to calculate PTE. By essentially preserving PTE awarded to original patents, this decision could encourage pharmaceutical companies to pursue reissue, especially if there are any concerns that broad original claims may not comply with the court’s recent Orange Book listing guidance.
The BRIDION® Patent And Regulatory Review Period at Issue
The patent at issue is listed in the Orange Book for Merck’s BRIDION® (sugammadex) product, which is indicated for the reversal of neuromuscular blockade induced by rocuronium bromide and vecuronium bromide in adult and pediatric patients undergoing surgery. The patent was first issued December 30, 2003, as U.S. Patent No. 6,670,340, and then reissued on January 28, 2014, as U.S. Patent No. RE44,733. The reissued patent amended a dependent claim to expressly recite the active ingredient of BRIDION®.
Merck applied for FDA approval of sugammadex on April 13, 2004 (four months after the ’340 patent issued), and it was approved on December 15, 2015. Thereafter, Merck sought, and the USPTO granted, the maximum five years of PTE available under § 156, using the issue date of the original ’340 patent for the PTE calculation. (If the issue date of U.S. Patent No. RE44,733 had been used, the PTE award would have been only 686 days.)
The challenge to the PTE award arose in the context of ANDA litigation brought by several companies seeking FDA approval to sell generic versions of BRIDION®. The district court agreed with the USPTO’s calculation, and on appeal the Federal Circuit did too.
The Federal Circuit Opinion
The Federal Circuit opinion was authored by Judge Dyk and joined by Judges Mayer and Reyna. As framed in the opinion, the issue on appeal was one of statutory construction—the meaning of “the patent” in §156(c):
The term of a patent eligible for extension under subsection (a) shall be extended by the time equal to the regulatory review period for the approved product which period occurs after the date the patent is issued …

The Federal Circuit agreed with the USPTO that the language of §156(c) itself was ambiguous in that it is “unclear whether ‘the patent’ refers to the original or reissued patent.” Thus, the Federal Circuit considered “the broader context of the statute as a whole,” stating:
[T]he purpose of [§ 156] is clear: to compensate pharmaceutical companies for the effective truncation of their patent terms while waiting for regulatory approval of new drug applications.

With this purpose in mind, the opinion reasons:
That purpose applies in this case, since construing “the patent” in subsection 156(c) as the original patent compensates Merck for the period of exclusivity lost due to regulatory delay. On the other hand, Aurobindo’s construction denies Merck compensation for all but a small period of the delay. There is no reason why the Hatch-Waxman Act’s purpose would be served by disabling extensions of the unexpired term solely based on a patent holder’s decision to seek reissue …

The opinion concludes:
We thus conclude that, in the context of reissued patents, “the patent” in subsection 156(c) refers to the original patent. A reissued patent is entitled to PTE based on the original patent’s issue date where, as here, the original patent included the same claims directed to a drug product subject to FDA review.

Reissue Patents and Orange Book Listings
As discussed in this article, the Federal Circuit decision in Teva v. Amneal may have patent owners taking a second look at their Orange Book-listed patents, to assess whether they “particularly point out and distinctly claim” the specific drug approved by the FDA. For patents that disclose but do not expressly claim the approved active ingredient, seeking a reissue patent could allay Orange Book listability concerns. The PTE decision in Merck indicates that obtaining a reissued patent would not lessen PTE, providing further reason to consider the reissue process as an opportunity to strengthen a patent portfolio.

BIG LAW LOSS: TCPA Defendant Loses Bifurcation Effort After Terrible Discovery Objections– Is #BigLaw Inexperience to Blame?

Looks like #biglaw inexperience has cost another TCPA defendant big time.
But let’s try to stay positive.
First, I’m fairly certain I invented the concept of seeking bifurcated discovery in TCPA class litigation.
I know I invented seeking “trifurcted” discovery in TCPA class litigation.
Been doing it since 2011.
For a long time no other defense counsel even attempted the maneuver. Recently we have seen quite a bit of it. But like so much else in litigation, its one thing to make the right move– its another thing to win the move. Especially when #biglaw is involved. These guys can’t seem to win anything in TCPAWorld.
So what does bi/trifurcated discovery even mean and why does it matter?
The primary vehicle Plaintiff’s lawyers have to extract large dollar TCPA settlements in class discovery. They serve massively overly broad demands–stuff like, produce records of every call you’ve ever made and every consent record supporting the right to make those calls and every account record for every costumer that signed up as a result of those calls– in an effort to turn a company inside out and drive them to the settlement table.
For smaller companies these sorts of demands are irritating and invasive, but perhaps not crippling. But for large enterprises the idea of extracting millions of confidential/private client files to hand over to a plaintiff’s lawyer is downright insane.
Now the rules typically do not allow for this type of discovery but if defense counsel isn’t VERY careful with objections they may end up waiving critical protections and the court may end up issuing an order compelling production of these materials.
But one way to cut off this entire issue is by asking the court to prevent invasive “merits” discovery into class claims until after class issues are decided. (Type 1 bifurcation.) Or to stay all class discovery pending the outcome of a dispositive motion challenge to the named plaintiff’s claim. (Type 2 bifurcation.) Either one of these is a form of “bifurcation” of discovery.
In Bond v. Folsom Insurance Agency, 2025 WL 863469 (N.D. Tex. March 19, 2025) the Defendant–represented by a #biglaw firm that did NOT make my list of top best TCPA lawyers–attempted Type 2 bifurcation (i.e. they sought to stay class discovery until the Plaintiff’s individual claims were resolved.) Unfortunately the defendant had already lost a discovery battle earlier in the case and the court was not going to allow the belated effort to seek bifurcation bail the defendant out. So it denied the motion.
Get it?
The defense failed to seek bifurcation at the right time. Then the failed to assert proper objections/arguments to prevent the production of class wide information. Instead it asserted ” boilerplate objections” that were rejected by the court.
What a disaster. Shouldn’t have happened.

Wisconsin Court of Appeals Finds Taxpayer-Funded College Grant Program to Be Unconstitutional

On February 26, 2025, the Wisconsin Court of Appeals, District II, determined that a program that provided taxpayer-funded educational grants to financially needy students of specific racial, national origin, and ancestry groups was unconstitutional.

Quick Hits

On February 26, 2025, a Wisconsin appellate court ruled that a taxpayer-funded educational grant program for minority students is unconstitutional, citing the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA).
The court’s decision to halt the Minority Undergraduate Retention Program underscores the broader implications of the SFFA ruling, suggesting that race-based considerations in state-funded educational assistance programs may also violate the Equal Protection Clause of the U.S. Constitution.
Legal scholars and post-secondary institutions are closely monitoring the impact of the court’s decision and the federal government’s recent guidance, which indicates that the SFFA ruling could extend beyond university admissions to other areas, including employment-related decision-making.

Background
In April 2021, five Wisconsin taxpayers filed a lawsuit against the Higher Educational Aids Board (HEAB) and its executive secretary, Connie Hutchinson. HEAB and Hutchinson administer the Minority Undergraduate Retention Program, which was created by the Wisconsin legislature in 1985 to offer grants to certain undergraduate minority students. To be eligible for the grants, the students must be Black American, American Indian, Hispanic, or have ancestors who were formerly citizens of Laos, Vietnam, or Cambodia. In the case, Rabiebna v. Higher Educational Aids Board, the taxpayers claimed that the eligibility criteria (i.e., limiting eligibility to students of these specific racial or ethnic backgrounds) violated both the Equal Protection Clause of the U.S. Constitution and Article I of the Wisconsin Constitution.
The circuit court granted summary judgment in favor of the HEAB and Hutchinson. The taxpayers then appealed the decision. After the parties’ appellate briefs were filed, the Supreme Court of the United States issued its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). In SFFA, the Supreme Court ruled that two universities violated the Equal Protection Clause of the U.S. Constitution by considering an applicant’s race as part of the applicant’s admissions processes. Therefore, both parties in the HEAB case submitted additional briefing to the appeals court articulating the impact of the SFFA case on its review of the Minority Undergraduate Retention Program in Wisconsin.
The Decision
After evaluating the Wisconsin statutory language and considering the parties’ arguments, the appeals court reversed the circuit court’s ruling, finding instead that the Minority Undergraduate Retention Program violates the law. Notably, the court relied heavily on the SFFA opinion to support its conclusion, citing to it more than one hundred times in its fifty-three-page decision. The court’s analysis also closely tracked the overarching legal framework provided by SFFA. As a result of this decision, the HEAB and Hutchinson are currently enjoined from further administering the grant program and distributing any funds from it.
Implications of the Decision
Some legal scholars initially interpreted the Supreme Court’s SFFA decision narrowly, arguing that it was limited to university admissions policies. However, the HEAB opinion signals that some courts are willing to utilize SFFA’s Equal Protection analysis in other contexts where race is a consideration, including state-funded educational assistance programs. Indeed, the Wisconsin appeals court, citing to SFFA, emphasized that no state has the authority under the Equal Protection Clause to use race as a factor in offering “educational opportunities.” (Emphasis in original.)
The HEAB decision also appears to align with the U.S. Department of Education’s “Dear Colleague” letter dated February 14, 2025, which explicitly states that the SFFA decision “applies more broadly” than just to university admissions decisions. Given this letter and the recent confirmation of Linda McMahon as the new secretary of education, post-secondary institutions may want to consider closely monitoring developments in the federal government’s interpretations of the law post-SFFA, and its subsequent enforcement actions.
Finally, it appears that the SFFA decision will have impacts beyond the realm of education. For example, there are already cases pending in various jurisdictions around the country that cite to the SFFA case to challenge an employer’s consideration of race in hiring or other employment decisions. Therefore, employers may also want to consider following these cases, along with litigation over the Trump administration’s executive orders regarding diversity, equity, and inclusion, to see whether and how the SFFA decision is implicated and whether courts will extend SFFA’s reasoning to cover employment-related decision-making.

China’s Supreme People’s Court Releases Fifth Batch of Typical Cases of Seed Industry Intellectual Property Protection

On March 19, 2025, China’s Supreme People’s Court (SPC) released the Fifth Batch of Typical Cases of Seed Industry Intellectual Property Protection By People’s Courts (人民法院种业知识产权司法保护典型案例 (第五批)). The Fifth Batch includes 15 typical cases of judicial protection of seed industry IP concluded in 2024 including 13 civil cases, 1 administrative case and 1 criminal case. While not a common law system, China uses typical cases to “guide” the lower courts and public.
The SPC provided brief explanations of the cases and relevance as follows. The original text with links to the full decisions is available here (Chinese only).

Case 1. “Gangyou 188” new rice plant variety infringement case

[Dispute over infringement of new plant variety rights between Gan XX Industrial Company and Chongqing Non XX Industrial Company and Lei XX]
Second instance: 最高人民法院（2023）最高法知民终3165号

[Basic Facts of the Case]
Gan XX Industrial Company is the exclusive licensee of the new rice plant variety “Gangyou 188”. It filed an infringement lawsuit, claiming that the “Gangyou 88” seeds produced and sold by Chongqing Non XX Industrial Company and sold by Lei XX infringed its variety rights, and requested that the two companies be ordered to stop the infringement, Chongqing Non XX Industrial Company compensate for losses and reasonable expenses totaling more than 15.14 million RMB, and Lei XX bear joint and several liability for reasonable expenses. Chongqing Non XX Industrial Company argued that it had obtained the production and operation rights of the approved variety “Gangyou 88” through legal transfer, and at the time of transfer, it had conducted authenticity appraisal of the “Gangyou 88” it used and had fulfilled its reasonable review obligations, so it should not bear compensation liability. After the administrative agency and the first instance court commissioned appraisals respectively, the alleged infringing seeds “Gangyou 88” produced and sold by Chongqing Non XX Industrial Company and sold by Lei XX were identical to the standard sample of the approved variety, and were similar to the authorized variety “Gangyou 188”. The court of first instance determined that Chongqing Non XX Industrial Company and Lei XX did not infringe the law based on the fact that the alleged infringing seed “Gangyou 88” was identical to its approved standard sample. Gan XX Industrial Company filed an appeal.
[Judgment Result]
The Supreme People’s Court held in the second instance that there are differences between variety approval and variety authorization in terms of application procedures and system purposes. Whether the alleged infringing seeds are identical to the standard samples of the approved varieties has no relevance to whether they are identical to the characteristics and properties of the authorized varieties for protection. Unless otherwise provided by laws and administrative regulations, the production, reproduction, and sale of authorized variety propagation materials without the permission of the variety right holder constitutes infringement of variety rights. If the alleged infringing seeds belong to the approved varieties, he can claim the corresponding contractual liability from the transferor based on the contractual relationship, but cannot use this to counter the infringement claim of the variety right holder. If there are multiple license transfers of the infringing approved varieties, unless there is evidence that the alleged infringer has not used the seeds, the infringement time can be calculated from the date on which he acquired the variety in principle. Based on this, the second instance changed the judgment ordering Chongqing Non XX Industrial Company and Lei XX to stop the infringement, Chongqing Non XX. Industrial Company must compensate for losses and reasonable expenses for rights protection totaling more than 5.96 million RMB, and Lei XX was responsible for reasonable expenses for rights protection of 6,288 RMB.
【Typical significance】
This case clearly stipulates that the transferee of the approved variety shall bear legal responsibility for any act that constitutes infringement of the variety rights in the production and operation of the approved variety, which not only provides strong protection for the variety rights holder, but also effectively regulates the seed industry market. This case serves as a warning to seed operators to standardize their operations throughout the entire process of variety authorization, variety approval, and variety production promotion, in order to promote awareness of variety rights protection. The second instance judgment has reference significance in clarifying the legal nature of the approved variety, clarifying the method of infringement judgment, and reasonably determining compensation.

Case 2. “Sailete” apple new plant variety temporary protection period royalties and infringement case

[Dispute between Yin XX company and You XX company regarding temporary protection period royalties and infringement of new plant variety rights]
First instance: 甘肃省兰州市中级人民法院（2023）甘01知民初9号
Second instance: 最高人民法院（2023）最高法知民终3113号

[Basic Facts of the Case]
The “Sailete” apple variety was selected and bred by a research institute company in New Zealand and obtained the plant variety rights in China. Ying XX International Company is an interested party in the variety rights of “Sailete”. They have filed a lawsuit claiming that You XX Agricultural Company has been producing, breeding, and selling “Sailete” breeding materials without permission since 2018, and has sold a large amount of apple fruits harvested from them, which constitutes infringement. They request an order to stop the infringement, to inactivate the infringing materials, and to apply punitive damages of 5 million RMB. The You XX Agricultural Company believes that its planting of fruit trees does not constitute production or reproduction, and that planting fruit trees only for the purpose of obtaining apple fruits rather than specifically cultivating seedlings and does not constitute infringement. Even if it is determined to constitute infringement, it should not be ordered to inactivate the fruit trees, let alone determine the compensation amount based on the sales volume of apple fruits. After appraisal, it was found that the branches of the “Aifei” fruit tree purchased by Yin XX company from You XX agricultural company through notarization are identical to the “Sailete” variety. You XX agricultural company did not provide evidence that its fruit trees have a legal source.
[Judgment Result]
The Lanzhou Intermediate People’s Court of Gansu Province ruled at first instance that You XX Agricultural Company should inactivate all infringing propagation materials (plants, branches, etc.), and at the same time applied double punitive damages, and ordered You XX Agricultural Company to compensate for losses, temporary protection period usage fees and reasonable expenses totaling 3.3 million RMB. You XX Agricultural Company appealed.
The Supreme People’s Court held in the second instance that in the process of planting and obtaining “Sailete” apples by You XX Agricultural Company, a large number of saplings and branches must have been propagated. Based on the evidence in this case, it can be reasonably inferred that it has been engaged in the continuous production and propagation of authorized variety propagation materials. You XX agricultural company plants saplings of the “Sailete” variety for profit, sells a large number of apple fruits, and engages in propagation behavior. Its planting behavior should be recognized as production and reproduction behavior. It not only produces and reproduces apple seedlings, but also sells apple fruits. The act of selling harvested materials is a natural extension of the production and propagation of authorized varieties of breeding materials in the chain of time and obtaining illegal benefits, and should be considered as a whole. When determining the amount of compensation, the principle of comprehensive compensation should be followed, and the profits obtained from selling harvested materials should be used as a reference for infringement profits. Inactivating the breeding materials of infringing varieties is an effective measure and a natural means to stop infringement. When determining the specific responsibility for ceasing infringement, based on the characteristics of the accused infringing variety’s long-term growth and asexual reproduction, if the infringing propagation materials are not inactivated, the infringing plants may survive for a long time and have the risk of spreading. Compared to the method of removing seedlings and replanting them, the right holder’s claim to stop infringement by inactivating the scion and grafting non infringing varieties of scions can better balance the interests of all parties and should be supported. The appeal was dismissed and the original verdict was upheld.
【Typical significance】
The holder of the variety right in this case is a New Zealand company, and the judgment shows that the People’s Court insists on equal protection in accordance with the law. This case regards the act of selling harvested materials as a natural extension of the production and reproduction of propagation materials, and when the infringer mainly obtains illegal profits by selling harvested materials, the sales profit of the harvested materials is used as the basis for determining the amount of compensation, which provides an important reference for the calculation of compensation in subsequent similar cases and further strengthens the comprehensive protection of variety right holders. The method of stopping infringement supported by this case, which is to cut off the scion of infringing propagation material and graft other non-infringing variety scions, fully considers the characteristics of perennial asexually propagated crops, fully protects the interests of variety right holders, and reasonably takes into account the recovery of agricultural production and avoidance of resource waste, and makes useful explorations for refining the forms of stopping infringement of variety rights.

Case 3. Infringement of the new variety of rose plant “Tianshan Xiangyun”

[Dispute between Xinjiang Hua XX Technology Company and a Xinjiang seedling farm regarding infringement of new plant variety rights]
Second instance: 最高人民法院（2024）最高法知民终665号

[Basic Facts of the Case]
Xinjiang Hua Technology Co., Ltd. is the owner of the variety right of the new variety of Rosaceae, “Tianshan Xiangyun”. In 2022, Xinjiang Hua Technology Co., Ltd. notarized the purchase of seedlings that infringed the variety right of “Tianshan Xiangyun” from a certain seedling farm in Xinjiang. On May 28, 2023, a certain seedling farm in Xinjiang signed a “Seedling Ordering Agreement” with a certain cultivation base in Changji, agreeing to sell 8,000 “Tianshan Xiangyun Seedlings.” Xinjiang Hua Technology Co., Ltd. filed an infringement lawsuit, claiming that the Xinjiang seedling farm had continued to infringe from 2014 to 2023, and requested that Xinjiang farm to stop the infringement and compensate for losses and reasonable expenses totaling 5 million RMB. Xinjiang Hua Technology Co., Ltd. sells “Tianshan Xiangyun” at a price of 320-360 RMB per plant, while the Xinjiang seedling farm sells it at a price of 120-160 RMB per plant. Xinjiang Hua Technology Co., Ltd. claims that the average of the difference between its sales price of “Tianshan Xiangyun” and the sales price of the Xinjiang seedling farm in is its sales profit. The Xinjiang seedling farm argued that it was a public welfare institution. Since 2014, it has been cutting branches of rose varieties such as “Tianshan Xiangyun” from municipal parks for breeding. In 2021, the 36 rose varieties cultivated will be uniformly named “Tianshan Rose.” “Tianshan Xiangyun” is only one of them. Its behavior is scientific research and development, and the seedlings it obtained were cut from municipal parks or introduced from other places. According to the principle of exhaustion of rights, it does not constitute infringement. The 2021 work summary submitted by it shows that 10,500 “Tianshan Xiangyun” cuttings were taken in 2021, and 4,000 survived. The “Origin Quarantine Certificate” of the Xinjiang seedling farm in 2022 and 2023 recorded that the number of “Tianshan Rose” including “Tianshan Xiangyun” was 20,000 and 50,000 respectively. The first instance court determined that the production, breeding and sales behavior of the Xinjiang seedling farm exceeded the scope of scientific research and had a profit-making purpose. The infringement was established and ordered it to stop the infringement and pay 200,000 RMB in compensation. Xinjiang Hua Technology Company appealed.
[Judgment Result]
The Supreme People’s Court held in the second instance that the application of the principle of exhaustion of variety rights is based on the premise that the authorized variety propagation materials are sold by the variety right holder or the entity or individual authorized by the variety right holder, and only applies to the subsequent production, propagation, and sales of the legally sold authorized variety propagation materials themselves, and does not apply to the re-propagation and sale of the sold propagation materials. The Xinjiang seedling farm failed to prove that its propagation behavior was to use the authorized variety to cultivate new varieties, and its large-scale propagation was inconsistent with the scale required for scientific research. At the same time, it engaged in sales for profit, which constituted infringement. The Xinjiang seedling farm admitted that it had cut and propagated “Tianshan Xiangyun” seedlings at the end of 2014 and is still producing and propagating it. Combined with the notarial certificates involved in the case, relevant agreements, work summaries and other evidence, it can be determined that it has continued to infringe since at least 2014 to 2023. Considering that the price of goods sold to the outside world is bound to be higher than the production cost and the Xinjiang seedling farm refused to provide relevant account books and other information, the average value of the difference between the price of “Tianshan Xiangyun” sold by Xinjiang Hua Technology Company and the sales price of Xinjiang seedling farm, that is, 200 RMB/plant, was used as the basis for determining the losses suffered by the right holder due to infringement. Based on the evidence in the case, the number of alleged infringing seedlings produced and bred by the Xinjiang seedling farm in 2021 was not less than 4,000, and in 2023 it was not less than 8,000. Based on this, selecting the average number of these two years, it can be determined that the number of alleged infringing seedlings produced and bred by the Xinjiang seedling farm from 2021 to 2023 was 6,000 plants/year. The amount of damages calculated based on these three years alone has exceeded the 3 million RMB requested by Xinjiang Hua Technology Company in appeal. Therefore, the second instance changed the judgment to fully support the amount of compensation requested by Xinjiang Hua Technology Company on appeal.
【Typical significance】
This case clearly states that the principle of exhaustion of rights does not apply to the act of re-breeding and selling the propagation materials that have been sold. The second-instance judgment supported the relevant claims of the variety right holder when the infringer refused to submit financial books and other evidence, calculated the infringement damages based on the difference between the variety right holder’s selling price and the infringer’s selling price, and significantly increased the amount of compensation, effectively protecting the rights and interests of breeding innovation entities, and has precedential significance for breaking through the difficulties of evidence and accurately determining the amount of compensation in similar infringement cases.

Case 4. “Jinjing 818” new rice plant variety infringement case

[Dispute over infringement of new plant variety rights between Jiangsu Jin XX Industrial Company and Xuzhou Agricultural Materials Company, Zhao XX and Zhao YY]
First instance: 江苏省南京市中级人民法院（2022）苏01民初2019号
Second instance: 最高人民法院（2023）最高法知民终2896号

[Basic Facts of the Case]
Jiangsu Jin XX Industrial Company is the licensee of the exclusive implementation license for the new rice plant variety “Jinjing 818”. In May 2020, a certain agricultural material company in Xuzhou was ordered to stop infringement and bear punitive compensation liability for using white bags and irregular packaging to sell infringing seeds without the permission of the “Jinjing 818” variety right holder. The company failed to comply with the above judgment, and Jiangsu Jin XX Industrial Company applied for compulsory execution. During the execution process, the court added Zhao XX, the sole shareholder and legal representative of a certain agricultural material company in Xuzhou, as the liable person. Since January 2021, Zhao XX has successively released seed supply information, contact numbers of the heads of various sales areas of a certain agricultural material company in Xuzhou, and accountant Zhao YY in WeChat group chats, and organized offline ordering activities. Starting from November 29, 2021, a farmer communicated with the sales staff of the agricultural material company in Xuzhou about the purchase of the alleged infringing seeds, and paid the deposit and the remaining amount to Zhao YY’s account. Jiangsu Jin XX Industrial Company filed a lawsuit, requesting that Xuzhou XX Agricultural Materials Company, Zhao XX, and Zhao YY stop infringing and jointly compensate for losses and reasonable expenses for rights protection totaling 3 million RMB. During the first instance trial, it was determined that the alleged infringing seeds were very similar or identical to “Jinjing 818”.
[Judgment Result]
The Nanjing Intermediate People’s Court of Jiangsu Province held at first instance that after being ordered to stop infringement in the previous case, the Xuzhou Agricultural Materials Company once again organized seed transactions through WeChat groups and committed infringement. Zhao XX, the legal representative and sole shareholder of Xuzhou Agricultural Materials Company, used WeChat groups to publish seed supply information and organized offline ordering activities, playing a key and core organizational role in seed transactions, and jointly infringed with Xuzhou Agricultural Materials Company. Zhao YY, who participated in seed sampling, collected transaction funds with his personal account after Xuzhou Agricultural Materials Company was found liable, and he, Xuzhou Agricultural Materials Company, and Zhao XX jointly infringed. The three defendants were ordered to stop the infringement, and Xuzhou Agricultural Materials Company and Zhao XX jointly compensated Jiangsu Jin XX Industrial Company for economic losses and reasonable expenses totaling 1.8 million RMB, and Zhao YY was jointly liable for 350,000 RMB of it. The three defendants appealed. The Supreme People’s Court rejected the appeal in the second instance and upheld the original judgment.
【Typical significance】
This case is a typical example of severely cracking down on hidden infringements and the persons directly responsible. In response to hidden infringements such as organizing seed transactions on online platforms, the actual controller of the company who played an organizing and decision-making role in the occurrence of the infringement and other persons who received the company’s infringement proceeds with their personal accounts and directly participated in the infringement were found to have committed joint infringements with the company, and were ordered to bear joint and several liability based on the circumstances of their infringement and the extent of their role, effectively raising the cost of infringement.

Case 5. Infringement of the new variety of the genus “Hongyunlai”

[Dispute over infringement of new plant variety rights between a Shanghai plant company and a Guangzhou agricultural science company]
Second instance: 最高人民法院（2022）最高法知民终1362号

[Basic Facts of the Case]
A plant company in Shanghai and a non-party company in Shanghai are the variety rights holders of the new fruit vine variety “Hongyunlai.” In January 2020, the plant company in Shanghai obtained “Xinhongxing” seedlings sold by the Guangzhou agricultural science company and has them notarized and stored at the Plant New Variety Testing (Shanghai) Branch Center, and sent the above two samples to a technology company in Ningbo for testing. On April 13, 2020, the technology company in Ningbo issued a “Technical Appraisal Opinion”, and the appraisal result was that the AFLP fingerprints of the two varieties were 95.08% similar, and the two varieties were highly similar. The plant company in Shanghai filed a lawsuit, requesting that the Guangzhou agricultural science company be ordered to stop infringement and compensate for losses. The first-instance judgment did not adopt the technical appraisal opinion on the grounds that the varieties involved had no national standards or industry standards for molecular marker detection, and rejected all the claims of the plant company in Shanghai. The plant company in Shanghai appealed. In the second instance, the Supreme People’s Court approved the appraisal application of the plant company in Shanghai, and with the consent of both parties, designated a testing agency to conduct the appraisal. The testing agency used the MNP labeling method to conduct testing and issued a test report stating that the genetic similarity between the tested sample and the control sample was 99.91%, and the identification results were extremely similar or the same variety.
[Judgment Result]
The Supreme People’s Court held in the second instance that the people’s courts should review whether the molecular marker detection method for plant variety identity identification is scientific and reliable. If the molecular marker detection method for a specific plant variety has not yet established a national standard or industry standard, the identification results made by qualified identification institutions and appraisers with reference to other relevant standards, if the identification method can scientifically and accurately distinguish different varieties and has sufficient scientific basis and repeatability, can be used as evidence to determine whether the alleged infringing object is identical to the authorized variety. The “MNP Marking Method for Plant Variety Identification” has been established as a national standard and can be applied to the identification of original varieties, substantially derived varieties and variety authenticity identification of rice, corn, soybeans, etc. The identity identification of pineapple varieties of the genus Pyrifera can be carried out in accordance with the “MNP Marking Method for Plant Variety Identification.” After identification, the alleged infringing seedlings “Xinhongxing” and the authorized variety “Hongyunlai” are very similar or identical varieties. The Guangzhou agricultural science company did not submit rebuttal evidence, so it can be determined that the alleged infringing seedlings are identical to the authorized variety “Hongyunlai”. The court then changed the judgment to require the Guangzhou agricultural science company to stop infringing and compensate for the losses and reasonable expenses totaling 1.075 million RMB.
【Typical significance】
This case is a typical case of exploring the use of MNP labeling for identification of specific crops for which national or industry standards for molecular marker detection have not yet been established. The second-instance judgment conducted a strict review of the identification methods and institutions of specific crops, and based on the scientific nature and repeatability of the identification methods, determined that the identification opinions can be used as evidence to determine that the alleged infringing seedlings are identical to the authorized varieties, avoiding the lack of identification standards for specific crop variety rights affecting judicial protection and relief. This case provides a precedential example for the use and judicial review of the MNP labeling method in the identification of the identity of new plant varieties.

Case 6. Infringement of the new corn plant variety “Jingnuo 6”

[Dispute over infringement of new plant variety rights between a breeding company in Beijing and a certain industrial company in Guangxi, a certain subsidiary in Shenzhen, and a certain seed store]
First instance: 广东省深圳市中级人民法院（2022）粤03民初4649号
Second instance: 最高人民法院（2023）最高法知民终1790号

[Basic Facts of the Case]
A certain scientific academy in Beijing is the owner of the variety right of the new corn plant variety “Jingnuo 6”, and a certain breeding company in Beijing is its exclusive licensee. “Jingkenuo 2000” is a hybrid corn variety produced with “Jingnuo 6” and “Bai Nuo 6” as parents. The breeding company in Beijing filed a lawsuit, requesting that a certain industrial company in Guangxi, a certain subsidiary in Shenzhen, and a certain seed store stop using “Jingnuo 6” to produce the alleged infringing seed “Shenkenuo 8” and compensate for the losses. The first instance court conducted an authenticity appraisal of the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” in accordance with the law, and conducted a parent-child relationship appraisal of the alleged infringing seeds “Shenkenuo 8” and “Jingnuo 6”. The appraisal result is that the alleged infringing seeds “Shenkenuo 8” and “Jingkenuo 2000” are similar varieties, and are suspected to have a parent-child relationship with “Jingnuo 6”.
[Judgment Result]
In the first instance, the Shenzhen Intermediate People’s Court of Guangdong Province determined that the alleged infringing seed “Shenkenuo No. 8” was produced by reusing the authorized variety “Jingnuo 6” as the parent, based on the results of the authenticity identification and parent-child relationship identification in the case, and ordered the industrial company in Guangxi, the subsidiary in Shenzhen, and the seed store to stop the infringement, and ordered the industrial company in Guangxi to compensate for losses of 300,000 RMB and reasonable expenses of 50,000 RMB, the subsidiary in Shenzhen to compensate for losses of 100,000 RMB , and the seed store to compensate for losses of 20,000 RMB. The industrial company in Guangxi and a subsidiary in Shenzhen appealled.
The Supreme People’s Court held in the second instance that, when judging whether a specific hybrid is produced and propagated by repeatedly using the authorized variety as a parent, given that there is currently a lack of national standards or industry standards for the identification of the parent-offspring relationship of plant varieties, the parent-offspring relationship identification opinion made by the identification agency in reference to the variety authenticity identification standard can be used as the basis for determining the facts. The identification report in this case can serve as preliminary evidence to determine that the alleged infringing seed “Shenkenuo No. 8” repeatedly used the authorized variety “Jingnuo 6” breeding materials in the production process. At the same time, combined with the identification opinion that the hybrid “Jingkenuo 2000” produced with “Jingnuo 6” as the mother parent and the alleged infringing hybrid “Shenkenuo No. 8” are similar varieties, it can be determined that the fact that “Shenkenuo No. 8” was produced using the “Jingnuo 6” breeding materials as the parent is highly likely. The Guangxi industrial company and a subsidiary in Shenzhen failed to provide evidence to prove that the alleged infringing seeds have a legitimate parental source, so their claim of non-infringement is not supported. The court therefore ruled to dismiss the appeal and uphold the original judgment.
【Typical significance】
With the deepening of intellectual property protection in the seed industry, the protection of crop parents has become one of the key concerns of variety right holders. At present, there is no universal standard for the identification of the parent-offspring relationship of plant varieties. How to prove that the hybrid variety in question is produced using the authorized variety is a difficult problem in judicial practice. This case reasonably considers the laws of crop breeding, comprehensively analyzes the results of the parent-offspring relationship identification between the parent variety and the hybrid variety, and the authenticity identification results of the hybrid variety, and reasonably allocates the burden of proof, thereby achieving effective protection of the legitimate rights and interests of the parent variety right holders, and providing a reference for handling similar cases in judicial practice.

Case 7. Infringement of the new corn plant variety “Xianyu 508”

[Dispute over infringement of new plant variety rights between a certain industrial company in Shandong and a certain agricultural company in Shanxi and a certain distribution department in Qi County]
Second instance: 最高人民法院（2024）最高法知民终819号

[Basic Facts of the Case]
A certain industrial company in Shandong, authorized by the variety right holder, has the right to file a civil lawsuit in its own name for infringement of the variety right of “Xianyu 508”. After testing, the allegedly infringing seeds “Chenqiang 808”, “Jinongyu 885” and “Jinke 757” are very similar or identical to the authorized variety of “Xianyu 508”. The Shandong industrial company filed an infringement lawsuit, requesting that a certain agricultural company in Shanxi and a certain distribution department in Qi County stop the infringement and compensate for losses and reasonable expenses totaling 550,000 RMB. The Shandong industrial company requested to determine the amount of compensation based on the profit of the infringement of the Shanxi company, and submitted the sales data of corn seeds of “Chenqiang 808”, “Jinongyu 885” and “Jinke 757” filed on the seed industry big data platform from 2018 to 2021; and claimed to determine the production and sales quantity of infringing seeds based on the production numbers of the Shanxi company in the above-mentioned filing data. The court of first instance ordered the Shanxi agricultural company and the Qi county distribution department to stop the infringement, and ordered the Shanxi agricultural company to compensate for losses of 30,000 RMB and reasonable expenses of 16,000 RMB, and the Qi county distribution department to pay reasonable expenses of 4,000 RMB. Both the Shandong agricultural company and the Shanxi agricultural company appealed.
[Judgment Result]
The Supreme People’s Court held in the second instance that the alleged infringer registered production and operation on the seed industry big data platform as a producer, and the name of the alleged infringing seed was the same as the name of the registered variety, and the production time of the alleged infringing seed was close to the registration time of the seed industry big data platform. In principle, it can be presumed that the registered sales quantity is the production and sales quantity of the infringing seeds. Combined with the facts of this case, the names of the alleged infringing seeds “Chenqiang 808”, “Jinongyu 885” and “Jinke 757” obtained through notarization are the same as the names of the registered varieties, and the production time of the alleged infringing seeds is close to the registration time of the seed industry big data platform in 2021. It can be presumed that the seeds with the same name registered by the Shanxi agricultural company in 2021 are all “Xianyu 508” corn seeds, and the registered sales quantity can be determined as the production and sales quantity of the alleged infringing seeds, and the infringement damages can be calculated accordingly. Therefore, the Shanxi agricultural company was sentenced to compensate for losses of 370,000 RMB and reasonable expenses of 30,000 RMB.
【Typical significance】
The information system of the seed administration department stores data and information related to seed production, sales and other links. Through the reasonable use of relevant data and information, effective tracking of the infringing subject and the scale of infringement can be formed. This case clarifies the use of the registered data of the seed industry big data platform in the calculation of damages for variety rights infringement. Through comprehensive consideration of the registered data of the seed industry big data platform and the infringement involved in the case, the sales volume of infringing seeds is reasonably estimated, and the amount of infringement compensation is calculated accordingly, which effectively solves the problem of difficulty in providing evidence for variety rights holders and effectively increases the intensity of infringement compensation.

Case 8. Infringement case of new wheat plant variety “Bainong 207”

[Dispute over infringement of new plant variety rights between Hua XX Industrial Company, Feng XX Industrial Company and Tang XX Sales Department]
Second instance: 最高人民法院（2023）最高法知民终113号

[Basic Facts of the Case]
Hua XX Industrial Company is the exclusive licensee of the new plant variety “Bainong 207”. The alleged infringing seeds were purchased from Tang’s store. The packaging bag and the QR code scan screenshot show that the variety name is “Sunshine 818”, and the producer is “Feng XX Industrial Company”. The query of the QR code traceability website shows that the queried product is genuine, and the production unit also points to Feng Industrial Company. Hua Industrial Company filed a lawsuit, requesting that Feng Industrial Company and Tang’s store stop infringing and compensate for losses of 300,000 RMB. In the first instance, Hua Industrial Company submitted a “Test Report” made by a unilateral commission, intending to prove that the alleged infringing seeds are the same variety as the authorized variety “Bainong 207”. The first instance court determined that the control sample “Bainong 207” had no sample number, the source was questionable, and the test conclusion was insufficient. The production date and test date shown on the scanned QR code of the packaging bag were two years earlier than the sales date, which was inconsistent with common sense and could not prove that the alleged infringing seeds were produced by Feng Industrial Company. Therefore, the first instance judgment dismissed all the claims of Hua Industrial Company. Hua Industrial Company appealed. In the second instance, the court initiated the appraisal according to law, as the alleged infringing seeds were sealed in good condition and met the conditions for appraisal. The appraisal agency conducted an identity test on the alleged infringing seeds and the “Bainong 207” standard sample in the national standard sample library, and the test results showed that the two were the same variety.
[Judgment Result]
The Supreme People’s Court held in the second instance that the information marked on the seed packaging and label, the license or the information pointed to by the number of the “Origin Quarantine Certificate” is an important basis for identifying the production and sales entity of the alleged infringing seeds. Unless there is evidence to the contrary, the seed producer and operator information clearly marked on the packaging bag can be used to determine the identity of the production and sales entity. Therefore, in the absence of evidence to the contrary, Feng Industrial Company can be identified as the producer and seller of the alleged infringing seeds. The probative force of the inspection report issued by the appraisal agency should be reviewed from the aspects of the source of the sample, the identification method, the identification procedure and the identification qualification. The appraisal agency entrusted by the court conducted a germination test on the sample to be tested. After the successful germination determined that the seed vitality was normal, it used the molecular marker identification method for detection and issued an inspection report in accordance with the national standard, which can prove that the alleged infringing seeds are identical to the “Bai Nong 207” wheat variety. Tang’s sales department knew that it was infringing seeds but still sold them, and should bear joint and several liability. Based on this, the second instance court changed the judgment to require Feng Industrial Company and Tang Store to stop the infringement, and Feng Industrial Company to compensate for the losses and reasonable expenses for rights protection totaling 300,000 RMB, and Tang Store to bear joint and several liability within 50,000 RMB of this amount.
【Typical significance】
Accurately identifying the infringing subject is a key link in maintaining the order of the seed market and protecting the legitimate rights and interests of the variety rights holders. This case clarified the basis for identifying the producers and sellers in the variety rights infringement disputes, and highlighted the importance of making good use of the management information involved in seed supervision to achieve coordinated protection. At the same time, the second-instance judgment provided guidance on the evidence and duty of care of the appraisal applicant. According to the second-instance appraisal opinion, the infringement facts were confirmed, and the legitimate rights and interests of the variety rights holders were fully protected.

Case 9. Infringement of the new soybean plant variety “Qihuang 34”

[Dispute over infringement of new plant variety rights between Shandong Sheng XX Industrial Co., Ltd. and Qingdao Li XX Professional Cooperative and Geng XX]
First instance: 山东省青岛市中级人民法院（2024）鲁02知民初34号

[Basic Facts of the Case]
Shandong Sheng XX Industrial Company is the exclusive licensee of the new soybean plant variety “Qihuang 34”. Qingdao Li XX Professional Cooperative and its operator Geng promised to sell “Qihuang 34” soybean seeds through Douyin [TikTok] video accounts and WeChat video accounts. According to statistics, the videos released on different dates advertised that the amount of seeds produced and sold by them reached 310 tons. Shandong Sheng XX Industrial Company filed a lawsuit, requesting that Qingdao Li XX Professional Cooperative and Geng stop the infringement and jointly compensate for the loss of 300,000 RMBand reasonable expenses of 12,596 RMB.
[Judgment Result]
The Intermediate People’s Court of Qingdao City, Shandong Province held at first instance that the Qingdao Li XX Professional Cooperative and Geng XX produced and sold seeds that infringed the “Qihuang 34” soybean plant new variety rights without permission, which constituted infringement and they should bear civil liabilities such as stopping the infringement and compensating for losses. The Qingdao Li XX Professional Cooperative and Geng sold 310 tons of infringing soybean seeds through the Internet. According to the notarized purchase price of 3.5 RMB per catty by Shandong Sheng XX Industrial Company, the infringing sales amounted to 2.17 million RMB. Based on this, the first instance judgment fully supported the economic losses of 300,000 RMB claimed by Shandong Sheng XX Industrial Company, and supported the reasonable expenses of 10,000 RMB for rights protection. After the first instance judgment, neither party appealed.
【Typical significance】
This case embodies the effective use of online evidence in seed industry infringement cases. At the same time, it fully supports the rights holder’s claim for compensation based on the evidence in the case, reflecting the judicial orientation of the People’s Court to effectively strengthen the protection of seed industry intellectual property rights and increase the intensity of compensation for damages.

Case 10. Infringement of the new soybean plant variety “You6019”

[Dispute over infringement of new plant variety rights between Henan Xu XX Industrial Company and Henan Hua XX Industrial Company, Xin XX Agricultural Materials Business Department and Ming XX Agricultural Materials Business Department]
First instance: 河南省郑州市中级人民法院（2023）豫01知民初1907号
Second instance: 最高人民法院（2024）最高法知民终713号

[Basic Facts of the Case]
Henan Xu Industrial Company is the exclusive licensee of the new soybean plant variety “You 6019”. This variety passed the national variety approval in 2018 and is suitable for summer planting in Hubei, Chongqing, southern Anhui, northern Jiangxi, and southern Shaanxi. The “Zhongdou 40” soybean seeds produced by Henan Hua Industrial Company were commissioned by Xin Agricultural Materials Business Department and sold by Ming Agricultural Materials Business Department in Anxiang County, Changde City, Hunan Province, and were seized by local agricultural law enforcement departments. After testing, “Zhongdou 40” and “You 6019” are suspected to be the same variety. Henan Xu Industrial Company filed a lawsuit, requesting that Henan Hua Industrial Company, Xin Agricultural Materials Business Department, and Ming Agricultural Materials Business Department stop infringement and compensate for losses and reasonable expenses of 300,000 RMB. Henan Hua Industrial Company, Xin Agricultural Materials Business Department, and Ming Agricultural Materials Business Department argued that their sales activities occurred outside the suitable planting area for the “You 6019” variety, and Henan Xu Industrial Company had no right to claim rights and should not receive economic compensation.
[Judgment Result]
The Zhengzhou Intermediate People’s Court of Henan Province ruled at first instance that Henan Hua XX Industrial Company, Xin XX Agricultural Materials Business Department, and Ming XX Agricultural Materials Business Department should stop infringing the law and compensate for losses and reasonable expenses of RMB 150,000, RMB 10,000, and RMB 5,000 respectively. Henan Hua XX Industrial Company appealed.
The Supreme People’s Court held in the second instance that if the variety right is legal and within the effective protection period, it should be protected by law. The scope of the prohibition power of the variety right is not limited by the authorized variety suitable planting area or the approved area, and the establishment of the variety right infringement is not conditional on whether the alleged infringement is carried out in the authorized variety suitable planting area or the approved area. The production and sale of authorized variety propagation materials in non-approved areas without the permission of the variety right holder still constitutes infringement according to law. At the same time, damages, as a basic legal remedy for the right holder, should not be adversely affected by the infringement occurring in non-approved areas. On the contrary, infringement in non-approved areas not only damages the rights and interests of the variety right holder, but also may damage the interests of growers, which can be used as a factor to aggravate the infringement. Hua XX Industrial Company produced and sold the alleged infringing seeds in non-approved suitable planting areas, which constituted infringement and should bear compensation liability. At the same time, based on the same authorized variety, the same infringement and the infringing subject, the reasonable expenses incurred by the variety right holder in the administrative law enforcement procedure to maintain its variety rights can be determined as reasonable expenses in the case of infringement of new plant variety rights disputes, and they shall be supported when determining compensation liability. The court then ruled to dismiss the appeal and upheld the original judgment.
【Typical significance】
This case clarified the nature of the infringement of the production and sale of authorized varieties in non-approved areas, emphasized that the protection of variety rights is not limited by the planting area, and that the infringement may also affect the legitimate rights and interests of growers, which can be used as a factor in the aggravation of the infringement. At the same time, this case also clarified that the reasonable expenses spent by the variety right holder in the administrative law enforcement procedure to maintain its variety rights under certain circumstances can be supported as reasonable expenses in the case of infringement of new plant variety rights. The judgment in this case further strengthened the comprehensive protection of the legitimate rights and interests of variety right holders.

Case 11. Infringement of new varieties of rose plants such as “LEXTEEWS”

[Dispute over infringement of new plant variety rights between a Dutch group company, an Ai agricultural company and a Lanzhou agricultural technology company]
First instance: 甘肃省兰州市中级人民法院（2023）甘01知民初42、43、44号

[Basic Facts of the Case]
A Dutch group company is the owner of the variety rights of three new rose plant varieties, including “LEXTEEWS”. Ai Agricultural Company is an affiliated company of a Dutch group company, authorized to produce, promote and sell a series of rose varieties including “LEXTEEWS” in China, and has the right to sue for related infringements. An agricultural company in Lanzhou bred, promised to sell and sold “LEXTEEWS” and other rose varieties on a large scale in the flower industry base. The Dutch group company and Ai Agricultural Company filed three infringement lawsuits, requesting that the agricultural company in Lanzhou stop the infringement and compensate for losses and reasonable expenses totaling more than 10 million RMB.
[Judgment Result]
After the first instance of the case was filed at the Intermediate People’s Court of Lanzhou City, Gansu Province, Ai Agricultural Company immediately applied for property preservation of more than 8 million RMB in the account funds of the Lanzhou Agricultural Company. Rose planting by the Lanzhou Agricultural Company has reached a certain scale. The first instance court organized mediation between the two parties many times, promoting win-win cooperation between the two parties, and finally signed an authorization statement and cooperation framework agreement, transforming the infringement into authorized cooperation.
【Typical significance】
The People’s Court adheres to the purpose of justice for the people and the principle of equal protection, actively explores diversified dispute resolution, and ultimately mediates the case. It not only equally protects the rights of foreign variety right holders in accordance with the law, but also lays a solid foundation for future cooperation between the two parties, prompting both parties to integrate resources, give play to their respective advantages, drive industrial development, and achieve good results of win-win, multi-win and win-win results.

Case 12. Case involving a “shousi pineapple” planting contract

[Planting contract dispute between Hainan Feng Fruit Company and Ye Ding]
Second instance: 海南自由贸易港知识产权法院（2023）琼73民终328号

[Basic Facts of the Case]
On October 11, 2020, Hainan Feng Fruit Company and Ye Ding signed the “Pineapple Planting Agreement”, which stipulated that the two parties would cooperate in planting “shousi pineapples”. Ye Ding would provide pineapple seedlings and planting fertilizers for a fee, provide planting technology free of charge, and guarantee that the pineapple fruit yield would not be less than 3,000 kilograms per mu, and the cultivated pineapple seedling yield would not be less than 12,000 plants per mu; after the pineapple fruits matured, Ye Ding would repurchase all the pineapple fruits at a price not less than 3 RMB per kilogram. During the cooperation process, Hainan Feng Fruit Company filed a lawsuit on the grounds that the pineapple production and sales price did not conform to the contract agreement, requesting that Ye Ding pay a penalty of 505,008 RMB, compensate for losses of 288,985 RMB, and repurchase pineapple seedlings at market prices. Ye Ding counterclaimed and requested Hainan Feng Fruit Company to pay 115,396 RMB for seedlings and compensate for losses due to overdue payments. The court of first instance ruled that Ye Ding should compensate Hainan Feng Mou Fruit Company for the losses, and Hainan Feng Fruit Company should pay the remaining amount of seedlings to Ye Ding. Hainan Feng Fruit Company appealed to the Hainan Free Trade Port Intellectual Property Court.
[Judgment Result]
After the Hainan Free Trade Port Intellectual Property Court accepted the case, it handled the case prudently and sought diversified solutions, considering that seeds and seedlings are important raw materials for agricultural production and their quality and safety are related to farmers’ income and agricultural development. Considering that the subject matter of the case, “shousi pineapple” seedlings, is a non-major crop variety with high economic value, in order to substantially resolve the disputes and contradictions between the two parties, the court communicated with the two parties many times before and after the court, and facilitated the mediation of the two parties from multiple angles of “emotion”, “reason” and “law”. The two parties signed the mediation agreement and immediately implemented the contents of the mediation agreement on the day they received it, and the case was successfully resolved.
【Typical significance】
This case is a typical example of settling disputes in the seed industry. Based on the contract agreement and legal provisions, the trial court balanced the interests of seed users and seed suppliers, advocated that the parties eliminate differences, show mutual understanding and compromise, and achieve win-win results, thus facilitating the settlement of the case and effectively implementing the concept of justice for the people in specific cases, ensuring the safety of seed use and maintaining the healthy development of the seed industry.

Case 13. Unfair competition case involving the name of a well-known breeder

[Unfair competition dispute between a certain agricultural high-tech company and Wan Group Company and Jiangxi Wan Industrial Company]
First instance: 江西省上饶市中级人民法院（2024）赣11民初10号
Second instance: 江西省高级人民法院（2024）赣民终288号

[Basic Facts of the Case]
Before his death, Academician Yuan Longping signed the “Yuan Longping Brand Rights License Agreement” with a certain agricultural high-tech company, authorizing the company to exclusively use his name in its business activities. Wan Group Company and Jiangxi Wan Industrial Company have overlapping business scopes with a certain agricultural high-tech company. They use the words “Guo Mi Wannian Gong Yuan Longping” in the outer packaging of rice and other products and in online publicity for promotion and sales. The agricultural high-tech company filed a lawsuit, requesting that the two defendants immediately stop unfair competition and compensate the agricultural high-tech company for economic losses of 1 million RMB and reasonable expenses of 100,000 RMB for rights protection.
[Judgment Result]
The Shangrao Intermediate People’s Court of Jiangxi Province ruled at first instance that Wan Group and Jiangxi Wan Industrial Company should immediately stop the unfair competition of producing and selling packaging products with “Yuan Longping’s” name and signature, and immediately delete the promotional content that improperly uses “Yuan Longping’s” name and signature; Wan Group and Jiangxi Wan Industrial Company should compensate for the losses and reasonable expenses of rights protection totaling 50,000 RMB. Wan Group and Jiangxi Wan Industrial Company appealed.
The Jiangxi Provincial High People’s Court held in the second instance that the use of the words “Yuan Longping” in the form of inscriptions and signatures on the allegedly infringing goods was commercial use. Academician Yuan Longping’s name has a high degree of popularity and influence, and is a name with a certain influence. The agricultural high-tech company enjoys the relevant commercial use rights of the name “Yuan Longping”. Wan Group Company and Jiangxi Wan Industrial Company used the name “Yuan Longping” for product promotion and sales without obtaining legal authorization, which easily misled people into believing that their products had a specific connection with Academician Yuan Longping or the agricultural high-tech company, constituting commercial confusion. This behavior violated the principle of good faith and recognized business ethics, damaged the legitimate rights and interests of the agricultural high-tech company, and constituted unfair competition. Based on this, the second instance court ruled to dismiss the appeal and uphold the original judgment.
【Typical significance】
Academician Yuan Longping is a hybrid rice breeding expert in my country and the father of hybrid rice in the world. His name has extremely high social influence and commercial value. The judgment in this case clarifies the legal standard for the commercial use of the names of well-known breeders to constitute unfair competition, and provides guidance for adjudication of similar disputes. The judgment in this case effectively implements the principles of honesty and trustworthiness and business ethics, effectively safeguards the commercial rights and interests of the names of well-known breeders, regulates the market competition order, and helps to create a healthy and fair market environment.

Case 14. Invalidation of the new corn plant variety “FL218”

[Administrative dispute over invalidity of new plant variety rights between Guizhou Hui XX Industrial Co., Ltd. and the Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs and Hubei Kang XX Industrial Co., Ltd.]
First instance: 北京知识产权法院（2022）京73行初4665号
Second instance: 最高人民法院（2024）最高法知行终627号

[Basic Facts of the Case]
Hubei Kang XX Industrial Company is the owner of the variety right of the new corn plant variety “FL218”. Guizhou Hui XX Industrial Company filed a request for invalidation with the Plant Variety Review Committee of the Ministry of Agriculture and Rural Affairs, claiming that the variety had been mass-produced and sold before the application date, and other varieties approved for breeding with it as a parent had also been mass-produced and sold, so the variety in question did not have novelty. The Plant Variety Review Committee made an invalidation review decision, believing that the evidence in the case was insufficient to prove that the variety in question lacked novelty and specificity, and maintained the validity of the variety right in question. Guizhou Hui XX Industrial Company was dissatisfied and filed an administrative lawsuit with the Beijing Intellectual Property Court.
[Judgment Result]
The Beijing Intellectual Property Court held at first instance that “FL218” possessed novelty and specificity, and rejected the lawsuit filed by Guizhou Hui XX Industrial Co., Ltd. Guizhou Hui XX Industrial Co., Ltd. appealed.
The Supreme People’s Court held in the second instance that Guizhou Hui XX Industrial Company only requested the declaration of invalidity of the variety right on the grounds that “FL218” did not have novelty, and did not explicitly claim specificity. However, considering that Hubei Kang XX Industrial Company also agreed to review whether “FL218” had specificity during the invalidation review procedure and administrative litigation, the invalidation review decision protected the rights and interests of the variety right holder to defend, listened to the opinions of the variety right holder, and did not constitute a procedural violation. The specificity of a new plant variety refers to the obvious difference in characteristics between the propagation materials of the variety and the known varieties before the application date. The invalidation applicant needs to clarify the known varieties of the authorized variety and prove that the authorized variety is not obviously different from the known variety through evidence such as DNA identification results or field test results. The burden of proof shall be borne by the invalidation applicant. Guizhou Hui XX Industrial Company did not submit evidence to prove that the three parent varieties involved in the case were known varieties of “FL218”, nor did it have preliminary evidence to prove that “FL218” was the same variety as the three parent varieties involved in the case, and did not fulfill the burden of proof. Because it failed to prove that “FL218” did not have novelty and specificity, the appeal was dismissed and the original judgment was upheld.
【Typical significance】
This case focuses on the legality of the procedure, clarifies the scope of the procedure for invalidation of variety rights initiated upon application, the specific identification standards and the distribution of the burden of proof in the procedure for confirmation of variety rights, and provides guidance for the review and proof in the procedure for invalidation of variety rights. This case helps to standardize the procedure for reviewing the invalidation of variety rights and promote the high-quality development of the seed industry.

Case 15. Crime of infringing trade secrets involving the new rice plant variety “Tsuen U 822”

First instance: 安徽省合肥高新技术产业开发区人民法院（2023）皖0191刑初611号

[Basic Facts of the Case]
A certain high-tech company in Anhui is the owner of the new plant variety rights of “Quanyou 9311A”, “YR0822” and “Quanyou 822”. Among them, the “Quanyou 822” rice seed was developed by the company’s scientific research team. The cultivation technology and genetic information of its mother “Quan 9311A” are the company’s core secrets and have not been disclosed to the public. Strict confidentiality measures have been taken. After the trial planting of “Quanyou 822” achieved mass production, the Anhui high-tech company transferred the relevant technology to its wholly-owned subsidiary, an Anhui industrial company, which obtained the exclusive domestic production and operation rights, and the transfer contract stipulated strict confidentiality obligations for all personnel involved in the production and management of the seeds. In 2019 and 2020, a certain industrial company in Anhui signed a “Hybrid Rice Seed Production Contract” with Deng XX, the legal representative of a certain seed professional cooperative, entrusting the cooperative to produce “Tsuenyou 822” rice seeds. It clearly stipulated that the contractor should ensure that the parents will not be lost, not be bred privately, and not be used for other purposes privately, and that the seeds produced by the contract will not be lost. The contractor will bear legal responsibility for the loss of parents or private breeding. In addition, the number of mother rice parents will be issued each year based on the number of acres planted by farmers, and technicians will be stationed at the planting base to provide long-term guidance on planting, supervise production, and prevent rice seed loss. Since 2019, Deng XX, Wang XX and Huang X of a certain seed company have conspired to arrange for Huang, an employee of their cooperative, to apply for more parent “Quan 9311A” from a certain seed company in Anhui by applying more per mu, and privately bred “Quanyou 822” rice seeds outside the supervision of a certain seed company in Anhui, and handed them over to a certain seed company to sell 113,840 kilograms under a fake brand, causing a loss of 1,090,360 RMB to the certain high-tech company in Anhui. On October 11, 2023, the People’s Procuratorate of Hefei High-tech Industrial Development Zone, Anhui Province, filed a public prosecution, accusing Deng, Wang , Huang 1 and Huang 2 of obtaining the right holder’s business secrets through improper means of false reporting and fraud, violating the confidentiality obligation to use the business secrets they obtained, causing major losses to the business secret right holder, and the circumstances are serious, and they should be held criminally responsible for the crime of infringing on business secrets.
[Judgment Result]
The People’s Court of Hefei High-tech Industrial Development Zone, Anhui Province, held at first instance that Deng and Huang violated the agreement with the right holder on keeping trade secrets, privately bred rice seeds, and Wang and Huang were responsible for selling them, making illegal profits, causing major losses to the right holder of the trade secrets, and the circumstances were serious, constituting the crime of infringing trade secrets. The defendants Deng Jin, Huang , Wang Yong, and Huang were sentenced to fixed-term imprisonment ranging from ten months to one year and two months , and fined between 20,000 RMB and 200,000 RMB.
【Typical significance】
The judgment in this case uses criminal means to crack down on infringements, demonstrating the judicial system’s severe punishment of seed-related crimes. By exerting the legal deterrent power of criminal sanctions, we can effectively punish and prevent seed-related crimes, improve the protection of breeding innovation, purify the seed market, and create a good innovation environment for seed companies.

The Ninth Circuit Confirms That Liability Insurers Are Entitled to Corroborating Medical Documentation Before Settling a Third-Party Bodily Injury Claim

Liability insurers often receive policy limit demands from third-party claimants that allege serious injuries without corroborating medical records or bills. Since the enactment of California Civil Procedure Code section 999 et seq. in 2023, these demands are typically made by “unrepresented” claimants who are actually receiving guidance from attorneys behind the scenes.
When insurers ask the claimants for corroborating medical documentation – or medical authorizations and sufficient time to use them – their requests are often ignored. Nevertheless, after the demands expire, the insurers are confronted with accusations that they acted in “bad faith” by failing to accept the uncorroborated demands.
In McGranahan v. GEICO Indemnity Company, GEICO was sued for bad faith based on these very circumstances. GEICO’s summary judgment victory in that case was recently affirmed by the Ninth Circuit, which held that GEICO acted reasonably – as a matter of law – when it declined to settle for its policy limit before receiving corroborating medical records and bills. McGranahan v. GEICO Indem. Co., 2025 WL 869306 (9th Cir. Mar. 20, 2025).
In McGranahan, GEICO’s insured was involved in an accident with a motorcyclist (McGranahan). During its investigation, GEICO spoke with McGranahan’s girlfriend, who claimed that McGranahan had suffered serious injuries and had been hospitalized for several weeks. GEICO asked the girlfriend for medical bills or records so that it could evaluate McGranahan’s claim. GEICO also requested that McGranahan sign and return a medical authorization so that GEICO could order the necessary medical documentation. Despite multiple follow-up requests, neither McGranahan nor his girlfriend provided GEICO with any medical records or bills, or a signed medical authorization.
Instead, after consulting with an attorney, McGranahan sent GEICO a handwritten letter demanding that GEICO pay him its $100,000 policy limit. In his demand letter, McGranahan claimed, among other things, that he suffered “significant injuries” and had “over a million dollars” in medical bills.
GEICO responded by again asking McGranahan to provide corroborating medical documentation, which GEICO explained was “essential” to evaluate the claim. GEICO also asked for an extension to respond to the demand. After McGranahan ignored those requests, GEICO advised him that it could neither accept nor reject his demand until it had adequate supporting documentation. GEICO also continued to send follow-up requests for medical documentation, which continued to go unanswered.
It was not until after McGranahan filed suit against GEICO’s insured that GEICO was first able to obtain corroborating medical documentation via formal discovery in the lawsuit. GEICO then offered McGranahan the policy limit, which he rejected based on his contention that the policy was “open” because GEICO had acted in bad faith by not accepting his prior policy limit demand.
After reaching an agreement to resolve that lawsuit for a stipulated judgment in the amount of $1.5 million, McGranahan obtained an assignment of the insured’s rights and sued GEICO for bad faith failure to settle. Judge Aenlle-Rocha of the Central District of California granted summary judgment in favor of GEICO finding, as a matter of law, that GEICO did not act in bad faith. McGranahan v. GEICO Indem. Co., 714 F. Supp. 3d 1187 (C.D. Cal. 2024). In particular, the court concluded that it was reasonable for GEICO to seek corroborating medical documentation before settling McGranahan’s claim, and that GEICO made reasonable efforts to obtain that information. Id. at 1196-97.
On March 20, 2025, the Ninth Circuit affirmed. McGranahan v. GEICO Indem. Co., 2025 WL 869306 (9th Cir. Mar. 20, 2025). In doing so, the Court made several significant rulings, including:

“An insurance company is entitled to receive medical records and bills to aid it in evaluating a settlement offer”; and
GEICO’s multiple requests for McGranahan’s medical bills/records or a signed medical authorization constituted a reasonable and adequate investigation (rejecting McGranahan’s argument that GEICO was required to send someone to meet with him or his girlfriend in person).

The Ninth Circuit’s ruling in McGranahan is consistent with its prior published decision in Du v. Allstate Ins. Co., 697 F.3d 753, 759 (9th Cir. 2012), where it also recognized that an insurer is not required to accept bodily injury claims that are uncorroborated by medical documentation. Both of these decisions affirm the common-sense principle that liability insurers are entitled to corroborating medical documentation when evaluating a third-party bodily injury claim before their settlement duties are triggered.
Rulings like this will help liability insurers defend themselves in bad faith lawsuits arising out of claims involving purportedly “unrepresented” claimants who submit policy limit demands without supporting medical documentation – a scenario that has become more commonplace after the enactment of California Civil Procedure Code section 999, et seq.

CFPB Pushes Forward in Debt Relief Action

On March 13, the CFPB filed a brief in an Illinois federal court, reinforcing its arguments for a $43 million judgment against the founder of a now-defunct debt relief company. The CFPB contends that the company’s founder controlled its deceptive telemarking operations and should be held personally liable under the Telemarketing Sales Rule (TSR) and the Consumer Financial Protection Act (CFPA).
The lawsuit, originally filed in 2020, alleges that the company engaged in unlawful advance fees and deceptive practices targeting student-loan borrowers. According to the CFPB, the company:

Misrepresented its services. The company allegedly promised lower student loan payments, full debt forgiveness, and improved credit scores, but often failed to deliver these results.
Charged illegal upfront fees. Consumers were required to pay fees before receiving any debt relief services, in violation of federal law.
Failed to provide promised relief. Many consumers paid significant amounts for services that did not produce the advertised benefits.

In its brief, the CFPB reiterated its request for the full $43 million judgment, which includes $2M in consumer redress, arguing that it should be based on total consumer harm rather than net profits. The Bureau also seeks a $41M in civil penalty and rejected claims that its penalty request infringes on the Seventh Amendment right to a jury trial.
Putting It Into Practice: Despite the CFPB’s recent withdrawal of several lawsuits (previously discussed here and here), its decision to proceed with this enforcement action indicates that certain regulatory priorities, including debt relief and Military Lending Act violations (previously discussed here and here), remain intact.
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It’s Time for Attorney-Led Voir Dire Everywhere

Since the country’s founding, there has been a recognition of how important it is for citizens, through their attorneys, to have a say in selecting jurors for their legal cases. “If you go back all the way to original notes on the Seventh Amendment in the Constitutional Convention, attorney-conducted voir dire was such an integral part of what (the founders) believed to be a fair trial process that the original draft to the Seventh Amendment included attorney-conducted voir dire,” told David Harak of the Harak Law Firm to The Daily Record.
Ultimately, the language in the Seventh Amendment itself was broader, highlighting “the right of trial by jury” and “the rules of common law” for lawsuits. More than two centuries later (238 years to be exact), debates over attorney-led voir dire are still underway. In fact, they’re gaining new steam.
Most states allow attorneys to take part in questioning jurors—but not all. Some states, like New Jersey, have strict limits against this practice. Over the last couple of years, New Jersey has launched pilot programs to consider changing the law.
These followed an Order from the New Jersey Supreme Court, which noted that “New Jersey is one of only a handful of state court jurisdictions that continue to use a judge-led system of voir dire. Many scholars, jurists, and practitioners advocate for an alternate approach known as Attorney-Conducted Voir Dire (ACVD). While different forms of ACVD exist, the general model is one in which attorneys question jurors, typically as a group, under the oversight of a judge who intervenes if and as appropriate, including for sidebar discussions and determination of challenges.”
Attorney-led voir dire can be essential in giving clients their best shot at a fair trial. When practicing in states that allow attorneys to question jurors, the people represented often get better outcomes. In these states, the defendants — often large, powerful corporations with huge sums of money to spend on legal maneuvers — know that I’ll be able to weed out jurors who may have unconscious biases against my client. They’re therefore more incentivized to settle before or during a trial.
The arguments against attorney-led voir dire often revolve around questions of time and fairness. “Some judges advocate minimal voir dire because they believe that extensive pretrial questioning could ‘waste too much time and unduly invade jurors’ privacy,’” a 2021 study explained. “Those judges and proponents of minimal voir dire assume that potential jurors can spontaneously self-identify their sources of bias, are willing to admit them and, when they do acknowledge biases, can set them aside and be impartial after undergoing judicial rehabilitation.”
The research by a team of professors from four universities (Arizona State University, the University of Denver, Cornell and Stanford) found flaws with the thinking about how voir dire often works. “First, it is assumed that individuals are both aware of and willing to acknowledge their biases during voir dire. Second, it is assumed that jurors who acknowledge their own biases can be ‘rehabilitated’ through a procedure whereby a judge informs prospective jurors that they must set aside their biases and asks them explicitly whether they can agree to do so.”
Focused on civil cases, the study found that, “Judicial rehabilitation did not reduce the biasing impact of their preexisting attitudes on case judgments—but did result in mock jurors reporting that they were less biased, despite judicial rehabilitation not actually reducing their bias.” The group concluded that, “Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility.”
Many Americans have biases against personal injury plaintiffs. They’ve been exposed to the idea that these kinds of claims are bogus. Perhaps the most infamous example became known as “hot coffee.” As NPR reported, the case became a legend, with people believing that a woman foolishly put hot coffee from McDonalds between her legs and was ultimately awarded nearly $3 million from the company because it spilled. The reality, exposed in a documentary, was very different. Given the extent and location of the severe burns, and how they apparently occurred because that particular McDonalds did not follow its own safety guidelines on water temperature, the plaintiff did not get nearly enough. Tellingly, the laypersons or legal professionals who viewed the burn images and learned about the actual liability details felt the same way.
All sorts of experiences and beliefs can lead good people to enter into a trial without a fair and open mindset. How are litigants (plaintiffs or defendants) to determine if their jury pool’s bias is based upon knowledge (or ignorance) of important facts of “famous” personal injury matters, like those exposed in the Mcdonald’s documentary, or other inherent bias accumulated over a lifetime of corporate/media, rather than factual, information? When a civil case makes it to trial, the plaintiff and defendant have the right to expect a fair trial. Agreeing on a jury based upon meaningful discussion and inquiry, rather than a “gut feeling” and expediency, is a key part of making that happen. It’s time to ensure that all Americans, in every state, have this chance.
The views expressed in this article are solely those of the author and do not necessarily reflect the opinions of The National Law Review.

ESOP Transactions and the Duty to Monitor Revisited

Key Takeaways:

Board’s Duty to Monitor the Trustee: A company’s board of directors has a fiduciary duty to monitor the ESOP trustee’s actions in an ESOP transaction, ensuring that the trustee is acting in the exclusive interest of the ESOP participants and has sufficient information to make informed decisions with respect to the transaction.
Trustee Certification and Fairness Opinion: Historically, it has been standard practice for the ESOP trustee to provide a certification confirming several aspects of a transaction, including a financial advisor’s opinion on the adequacy of the deal consideration and the fairness of the transaction’s terms.
Role of Special Meetings: Based on recent caselaw, advisors have begun holding a special meeting with the board and trustee before the closing of the transaction to further support the position that the board has fulfilled its monitoring duty.

ESOP Transactions and the Duty to Monitor Revisited
While the Department of Labor has provided little guidance on the scope of the duty to monitor in the context of an ESOP transaction, since Bensen1 several practitioners have adopted the practice of having the ESOP sponsor convene a special meeting of the board of directors with the trustee shortly before the scheduled closing of the transaction. The purpose of the meeting is to aid the board in meeting its fiduciary duty to monitor the trustee. During the meeting, the board asks questions of the trustee regarding its due diligence process and ensures that the trustee has had access to and sufficient time to review the information that has been provided during such process to enable it and its advisors to analyze the financial condition of the company, determine its range of value and analyze other material terms of the proposed transaction.
What is the Duty to Monitor in an ESOP Transaction?
With respect to a selling shareholder or board member acting in a fiduciary capacity under ERISA by virtue of appointing a trustee or other fiduciary, generally the duty to monitor requires a review, at reasonable intervals, of the performance of the appointee(s) in such a manner as may be reasonably expected to ensure that their performance satisfies the needs of the ESOP.2 No single procedure is appropriate in all cases and the actions required to be taken to satisfy the duty to monitor will vary in accordance with the facts and circumstances of the particular transaction.3 In addition, the courts have found that the duty to monitor also requires a certain degree of self-education on the part of the sellers and directors of the company in order for them to ask the proper questions of the trustee and its advisors and to be knowledgeable enough to determine whether the trustee is discharging its fiduciary duties. To make matters a bit more complicated, this latter requirement itself triggers a duty to disclose all relevant information as some courts have noted that the board cannot reasonably rely on the acts of a trustee or other fiduciary if it knows that that trustee or other fiduciary does not have the proper information needed for them to perform their valuation and other duties.4
The Role of the Independent Trustee and Board Interaction
On the other hand, an important fact in the context of an ESOP transaction is that an independent trustee is engaged so that they act independently and are not influenced by management or the sellers. An independent trustee, for example, will never share with the company or the sellers the valuation that it relies upon for purposes of a transaction or the details of its valuation process. Therefore, a review by the board of the valuation as part of its duty to monitor is not possible. In addition, to ensure that the trustee maintains its independence the board should preclude itself from “meddling with the trustee’s performance of its duties.”5 In Fish, the company’s board of directors met with the independent trustee two times in the course of a four-month transaction. It otherwise generally relied on the company’s management team to negotiate with and provide information to the trustee. Ultimately, the court found that through this process the board satisfied its duty to monitor as it had gained a foundational understanding of the nature of the trustee’s responsibilities, a basic understanding of the work performed by the trustee and an awareness that the trustee was acting in the exclusive interests of the ESOP participants.
Trustee Certification and Fairness Opinion in ESOP Transactions
Further, it is standard practice in all ESOP transactions to require the trustee to provide the company with a trustee certificate through which the trustee certifies, in part, that it finds that the purchase price is not in excess of adequate consideration and that the transaction is prudent, in the interests of the ESOP participants and for the exclusive purpose of providing benefits to the ESOP participants. It is also standard practice for the trustee, in making this certification, to rely upon and attach to the certificate a copy of the adequate consideration and fairness opinion of its financial advisor. This opinion by the financial advisor generally opines that (i) the price paid by the ESOP for the company stock does not exceed fair market value, (ii) the interest on any ESOP loan is not in excess of a reasonable rate of interest, (iii) the terms of the ESOP loan are at least as favorable to the ESOP as would be the terms of a comparable loan between independent parties and (iv) the terms of the overall transaction are fair to the ESOP from a financial point of view. This opinion will describe the transaction, and the various documents and information reviewed and relied upon by the financial advisor. Both the trustee certificate and the opinion are reviewed by the company and its advisors prior to the closing of the transaction. It stands to reason that in reviewing the trustee certificate and fairness opinion the company should be able to identify whether there are any errors or gaps in what the trustee and its financial advisor are relying upon. All of the information and documents reviewed by the trustee and its advisors, as described in the opinion, should provide the selling shareholders and the board with some assurance that the trustee has discharged its fiduciary duties.
Will A Special Meeting Sufficiently Fulfill the Duty to Monitor?
Not necessarily. As with all cases, facts play an important role and sufficient bad facts will inevitably undo the protection that even the best of processes can provide. Nonetheless, the insertion of this meeting into standard practice in connection with an ESOP transaction – and provided the company allows the trustee to operate independently and does not insert itself into the decision-making process – is likely to hold great weight as proof that the board of directors is properly monitoring the trustee and thereby discharging its fiduciary duty.

[1] Su v. Bensen, No. CV-19-03178-PHX-ROS (D. Ariz. Aug. 15, 2024).
[2] See gen., 29 C.F.R. § 2509.75-8, Q&A 17.
[3] Id.
[4] See, e.g., Foster v. Adams & Assocs. Inc., No. 18-cv-02723-JSC, 2020 BL 250202, at *6 (N.D. Cal. July 6, 2020)
[5] See, Fish v. Greatbanc Tr. Co., No. 09 C 1668, 2016 BL 330978, at *63 (N.D. Ill. Sept. 1, 2016).