Litigation / Trial Practice – Page 14

Second Department Affirms Right to Multiple IMEs: A Strategic Win for Product Liability Defendants

When a plaintiff alleges complex and overlapping injuries, such as traumatic brain injury (TBI), psychological trauma, or cognitive impairment, defendants must have access to the right tools to fairly evaluate and defend against the claim. In a recent decision, the Appellate Division, Second Department affirmed a critical procedural right for defendants: the ability to compel multiple independent medical examinations (IMEs) when justified by the nature of the injuries at issue.
In Mazzola v. Claridge’s Co., LLC, 2025 NY Slip Op 01918, the court reversed the lower court’s denial of a defense motion to compel an additional IME by a neuropsychologist, following an earlier IME conducted by a specialist in neurology and psychiatry. The plaintiff alleged significant psychological and cognitive injuries. The court emphasized that CPLR 3121(a) does not limit the number of IMEs a defendant may obtain and that additional examinations are appropriate when supported by necessity:
“There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it” (Mazzola, citing Abdelfattah v Treviacano, 204 AD3d 738).
“[T]he defendants sufficiently demonstrated the necessity for an additional IME by a specialist in neuropsychology in light of the plaintiff’s allegations as to the severity of his psychological injuries and since the prior IME was not conducted by a specialist in neuropsychology.”
This decision offers much-needed appellate support to defendants in cases involving multidimensional injury allegations. In today’s product liability landscape, where claims often combine orthopedic, neurological, psychiatric, and cognitive symptoms, this ruling validates a common-sense approach mirroring the growing complexity and specialization of physicians (and attorneys): different injuries call for different specialists.
Why This Matters for Product Liability Defendants

Claims Evaluation with Clinical PrecisionProduct liability defendants and insurers are frequently faced with TBI claims that span a range of diagnoses and disciplines. A psychiatrist is not a neuropsychologist, and the two bring vastly different methodologies to evaluating cognitive function. The Mazzola decision acknowledges this and ensures the defense is not handcuffed by a rigid, one-and-done IME limitation.
Strategic Use of Litigation ResourcesThough multiple IMEs require upfront coordination, they often lead to more cost-effective litigation by clarifying injury scope early, narrowing issues for summary judgment, or positioning a case more favorably for settlement. Investing in the right expert at the right time can significantly reduce long-term litigation spend.
Procedural Authority to Push Back Against RestrictionsPlaintiffs’ counsel often object to multiple IMEs on grounds of burden or duplication. Mazzola gives defense counsel the appellate authority to counter these objections, so long as the additional examination is narrowly tailored and necessary to address specific allegations.

ConclusionDefendants are not limited to a single IME when a plaintiff’s injury claims involve multiple, medically distinct allegations. Where a plaintiff alleges cognitive injury, psychiatric trauma, and neurological dysfunction, the defense is entitled to a thorough, specialized evaluation from each relevant discipline.
At Wilson Elser, we know how to leverage case law such as Mazzola to secure critical examinations and build a defense that withstands scrutiny. If your organization is facing a product liability claim involving complex or catastrophic injuries, contact our team to learn how we can help you develop a smart, calculated defense strategy that protects your interests and controls litigation costs.
Read the full Mazzola decision here.

Redrawing the NIL Playbook: Key Legal Takeaways from MLB Players Inc. v. DraftKings and Bet365

Introduction
The recent decision by U.S. District Judge Karen Marston in MLB Players Inc. v. DraftKings and Bet365[1] represents a pivotal development in the legal landscape surrounding name, image, and likeness (NIL) rights. The ruling explores critical intersections between publicity rights, commercial speech, First Amendment protections, and the legal boundaries of “news reporting.” The implications extend far beyond baseball, potentially affecting companies using athlete or celebrity NIL in commercial marketing across sports betting, digital advertising, and beyond.
Case Background
MLB Players Inc. (MLBPI), the group licensing subsidiary of the Major League Baseball Players Association, brought this action against DraftKings and Bet365, alleging unauthorized commercial use of player NIL in promotional campaigns. The complaint specifically cited examples where players’ images—including Yankees star Aaron Judge—were used in digital and social media promotions without proper authorization or compensation.[2]
Judge Marston’s ruling denied the defendants’ motion to dismiss claims related to right of publicity violations, misappropriation and unjust enrichment. Only one misappropriation claim was dismissed as duplicative.[3] The case now advances to discovery, where the courts will examine the factual context and intent behind the disputed content.
Defining the “News Reporting” Defense
A central question in this case concerns the scope of the “news reporting” defense under Pennsylvania law.[4] This exemption typically allows use of an individual’s identity without consent when it appears in legitimate news reporting on matters of public interest.
Judge Marston’s ruling made the following critical distinctions:

Content about newsworthy topics differs legally from content that constitutes actual news reporting;
Athlete identities cannot be used in commercial promotions under the guise of “news reporting”—even when discussing newsworthy sporting events; and
Pennsylvania applies a narrower interpretation of this exemption than some other jurisdictions.[5]

The court cited Abdul-Jabbar v. General Motors Corp. (1996)[6], where the Ninth Circuit found that even content comprised of factually accurate information about an athlete’s accomplishments loses protection from right of publicity claims when used primarily for commercial advertising. The decisive factor is not the truthfulness of the content, but whether the use serves a commercial purpose.
The Clear Line: Advertising vs. Journalism
The ruling provided concrete examples illustrating impermissible commercial use. In one instance, a Bet365 social media post featured Aaron Judge alongside betting odds about MLB teams winning 100+ games. Critically, the post made no substantive reference to Judge’s performance or provided any meaningful context—his image simply served to attract attention to the sportsbook’s offerings.[7]
Judge Marston emphasized that content merely resembling editorial or journalistic material, while actually serving an advertising function, cannot claim news exemptions under right of publicity statutes. This creates a clear standard: Content adopting the look and feel of news coverage while fundamentally promoting a product or service remains subject to right of publicity laws and a higher standard for legal clearance than a use of the same content for news or entertainment purposes.
First Amendment Arguments: Limited Protection for Commercial Use
The defendants’ First Amendment arguments referenced cases involving expressive works such as video games and artistic renderings.[8] However, Judge Marston distinguished those precedents, noting they involved transformed or creatively interpreted athlete images—unlike the straightforward use of player photos in this case.
The court found limited grounds for strong First Amendment protection at this stage because the promotional content relied on direct, unaltered use of athlete likenesses primarily for commercial gain. While deferring a complete First Amendment analysis until further factual development, the ruling signals that purely commercial uses face an uphill battle under free speech protections.[9]
Strategic Implications for Industry Stakeholders
This ruling carries significant implications for how NIL is used across industries—particularly in digital marketing, advertising, sports, betting, and branded content. When NIL is used for commercial promotion rather than legitimate reporting, organizations face potential liability without proper licensing.
Key Action Items:

Conduct content audits to identify where athlete or celebrity NIL appears in marketing materials.
Implement more rigorous legal clearances processes for NIL-related promotions.
Review existing licensing agreements to ensure they cover intended uses.
Develop clear internal guidelines distinguishing between news reporting and promotional content.
Consider jurisdictional differences in right of publicity laws when planning national campaigns.

The Evolving NIL Landscape
As NIL continues to grow in commercial value, legal efforts to protect these rights are intensifying. Athletes, celebrities, and their representatives are becoming more assertive in controlling NIL usage—with courts increasingly supporting their position.
Several states are enacting or revising right of publicity laws, expanding individual NIL protections and increasing potential liabilities for unauthorized commercial use. This state-by-state evolution has amplified calls for uniform federal NIL legislation—potentially modeled after copyright protections—to prevent a fragmented legal landscape that encourages forum shopping and inconsistent outcomes.
Conclusion
The MLB Players Inc. ruling marks a significant shift in NIL jurisprudence that affects brands, platforms, advertisers, and content creators across industries. The distinction between legitimate news reporting and commercial promotion is becoming more defined—and legally consequential.
In an environment where “earned media” and “sponsored content” demand different legal approaches, organizations must adapt their NIL practices to this evolving landscape. Those who implement comprehensive compliance strategies will be best positioned to avoid liability while effectively leveraging NIL in their marketing efforts.
Footnotes
[1] MLB Players, Inc. v. DraftKings, Inc., No. 24-4884-KSM, 2025 U.S. Dist. LEXIS 47600 (E.D. Pa. Mar. 14, 2025).
[2] Complaint, MLB Players Inc. v. DraftKings, ¶¶ 23–36.
[3] Memorandum Opinion by Judge Karen Marston, February 2025, at 12–14.
[4] 42 Pa. Cons. Stat. § 8316(e)(2)(ii).
[5] Id., see also Judge Marston’s analysis at p. 10.
[6] Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).
[7] Judge Marston Opinion, at 16–17.
[8] Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003).
[9] Judge Marston Opinion, at 21.

Chief Justice Roberts Allows Trump to Remove Wilcox from NLRB as the Supreme Court Considers the Challenge to Her Dismissal

National Labor Relations Board (“NLRB”) Member Gwynne Wilcox is out of a job for the third time in less than four months.
Since President Donald Trump terminated Wilcox from her position on January 28, 2025, Wilcox’s challenge to the dismissal has ricocheted between the courts, resulting in an initial order by the U.S. District Court of the District of Columbia ordering Wilcox’s reinstatement, a three-judge panel on the D.C. Circuit Court of Appeals reversing the District Court, and the full D.C. Circuit Court of Appeals reversing course yet again and upholding the District Court’s original decision.
On April 9, 2025, the Chief Justice of the U.S. Supreme Court, John Roberts, weighed in and issued an “administrative stay” of the full D.C. Circuit’s order in response to an emergency application filed by the Trump Administration, effectively upholding Trump’s termination of Wilcox, yet again, until the Supreme Court decides the underlying matter.
Chief Justice Roberts has requested Wilcox respond to Trump’s emergency application to the Supreme Court by April 15. As it currently stands, Wilcox is removed from her position and the NLRB is left without a three-member statutory quorum to hear cases.
For an in-depth summary of the facts and the constitutional issues at stake, please refer to our initial reports on the district court’s ruling here, the subsequent reversal by the U.S. Court of Appeals three-judge panel here, and the decision reached by the full U.S. Court of Appeals here.
The primary issue the Supreme Court is tasked with relates to Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), a Supreme Court decision which allowed Congress to enact statutory requirements for the President to remove officers of certain types of independent agencies.
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Employers Still Need to Abide 2024 Independent Contractor Rule Despite DOL Hints of Dropping It

Takeaways

In several ongoing lawsuits, the DOL has notified the courts that it will reconsider its 2024 independent contractor rule and may issue a new rule.
The 2024 rule formally rescinded an independent contractor rule issued at the close of the first Trump Administration.
The 2024 rule remains in effect while the cases are held in abeyance; however, the DOL is unlikely to enforce it.

Yahoo ConnectID Faces Class Action Over Email Address Tracking as Alleged Wiretap Violation

Yahoo’s ConnectID is a cookieless identity solution that allows advertisers and publishers to personalize, measure, and perform ad campaigns by leveraging first-party data and 1-to-1 consumer relationships. ConnectID uses consumer email addresses (instead of third-party tracking cookies) to produce and monetize consumer data. A lawsuit filed in the U.S. District Court for the Southern District of New York says that this use and monetization is occurring without consumer consent. The complaint alleges that ConnectID allows user-level tracking across websites by utilizing the individual’s email address—i.e., ConnectID tracks the users via their email addresses without consent. The complaint further alleges that this tracking allows Yahoo to create consumer profiles with its “existing analytics, advertising, and AI products” and to collect user information even if a user isn’t a subscriber to a Yahoo product.
The complaint states, “Yahoo openly tells publishers that they need not concern themselves with obtaining user consent because it already provides ‘multiple mechanisms’ for users to manage their privacy choices. This is misleading at best.” Further, the complaint alleges that Yahoo’s Privacy Policy “makes no mention of sharing directly identifiable email addresses and, in fact, represents that email addresses will not be shared.”
The named plaintiff seeks to certify a nationwide class of all individuals with a ConnectID and whose web communications have been intercepted by Yahoo. The plaintiff asserts this class will be “well over a million individuals.” The complaint seeks relief under the New York unfair and deceptive business practices law, the California Invasion of Privacy Act, and the Federal Computer Data Access and Fraud Act.
These “wiretap” violation lawsuits are popping up all across the country. The lawsuits allege violations of state and federal wiretap statutes, often focusing on website technologies like session replay, chatbots, and pixel tracking, arguing that these trackers (and here, the tracking of email addresses) allow for unauthorized interception of communications. For more information on these predatory lawsuits, check out our recent blog post, here.
The lawsuit seeks statutory, actual, compensatory, punitive, nominal, and other damages, as well as restitution, disgorgement, injunctive relief, and attorneys’ fees. Now is the time to assess your website and the tracking technologies it uses to avoid these types of claims.

New Jersey Supreme Court: Commissions Are Wages

Commissions are always considered wages under New Jersey’s Wage Payment Law (“NJWPL”). This is the first time the New Jersey Supreme Court has spoken on the issue, and it limits the flexibility employers have regarding such payments moving forward.
The Supreme Court’s recent declaration in Musker v. Suuchi, Inc., docket no. A-8-24, arose from a dispute over a commission employer Suuchi owed to salesperson Rosalyn Musker for her personal protective equipment (“PPE”) sales during the COVID-19 pandemic. Musker earned a base salary, along with a commission that was normally based on her gross revenues, but Suuchi determined that the PPE commission would instead be based on net revenues. Musker filed suit, claiming the company violated the NJWPL by failing to pay her commission based on gross revenues. The trial court dismissed the NJWPL claim, finding that the commissions at issue were a sort of “supplementary incentive” payment explicitly excluded from the NJWPL’s definition of wages. The Appellate Division agreed, adopting the rationale of a 2005 federal matter, Sluka v. Landau Uniforms, Inc., 383 F. Supp. 2d 649 (D.N.J. 2005), by reasoning that the function of some commissions was not just to compensate for labor performed, but to “motivate and reward a salesperson who creates more business each year.” See Musker v. Suuchi, Inc., 479 N.J. Super. 38, 59–61 (App. Div. 2024). The Appellate Division added that the PPE commissions were “special compensation” intended to “stimulate” Musker and her sales colleagues “during a time of sudden pandemic-related demand.”
The Supreme Court disagreed, emphasizing that the intention to motivate does not dictate whether a payment is deemed a “supplementary incentive” because all compensation is intended to motivate employees—“That is a simple matter of common sense.” Slip op. at 12. Instead, the Court made clear the correct question is whether the compensation incentivizes employees to do something beyond just supplying their “labor or services”; only then can it be a “supplementary incentive” that is excluded under the NJWPL.
Applying this logic, the Court reached the “straightforward” conclusion that Musker’s PPE commissions were wages under the NJWPL. Although Suuchi’s commission structure was unique, the Court confirmed that its rule was essentially universal: “[B]ecause a commission directly compensates an employee for performing a service, it always meets the definition of ‘wages’” under the NJWPL. Slip op. at 11. In contrast, non-wages can include incentives unrelated to labor or services, like sharing office space, achieving perfect attendance, working out of a particular location, or referring someone for an open position.
While the Court’s decision was limited to commissions, the implications of the Court’s dicta could extend beyond commissions to other forms of payments that do not truly incentivize employees to do something above and beyond supplying their “labor or services.” Once wages are “earned,” employers are responsible for payment per the NJWPL. In light of the Supreme Court’s guidance on this issue, employers should review their payment policies and practices—including those related to commission payments—to ensure they contain clear language regarding when such wages are earned and fully comply with the NJWPL.

Don’t Get Lazy, Timely Complete Your Arguments

This Federal Circuit Opinion[1] analyzes statutory estoppel under 35 U.S.C. § 315(e)(1) and examines offensive and defensive arguments related to § 103 obviousness.
Background
Gesture Technology Partners, LLC is the owner of U.S. Patent No. 7,933,431 (“the ’431 patent”), which generally claims a method for controlling a device based on a user’s gestures. In February 2021, Gesture filed a patent infringement lawsuit against Apple Inc., LG Electronics Inc., Google LLC, and others regarding the ’431 patent.
On May 14, 2021, Unified Patents, LLC, a multi-member organization of which Apple is a member, filed an Inter Partes Review petition against the ’431 patent, challenging a subset of the claims. On May 21, 2021, Apple, LG, and Google separately filed IPR petitions, which were eventually joined, challenging the patentability of all claims of the ’431 patent. Both the Unified IPR and Apple IPR relied on U.S. Patent No. 6,144,366 (“Numazaki”) as prior art, arguing the ’431 patent was obvious under 35 U.S.C. § 103 when combined with the knowledge of a person of ordinary skill in the art and/or at least one other prior art reference.
On November 21, 2022, based on the Unified IPR, the Board held claims 7-9 and 12 were unpatentable and claims 10, 11, and 13 were not unpatentable. On November 30, 2022, based on the Apple IPR, the Board held claims 1, 7, 12, and 14 were unpatentable and claims 11 and 13 were not unpatentable. Apple appealed, and Gesture cross appealed, the Apple IPR holdings.
35 U.S.C. § 315(e)(1) on estoppel states, “[t]he petitioner in an inter partes review of a claim in a patent . . . that results in a final written decision . . . , or the real party in interest or privy of the petitioner, may not . . . maintain a proceeding before the [Patent] Office with respect to that claim on any ground that the petitioner raised or reasonably could have raised during that inter partes review.” Gesture contended that Apple lacked standing to appeal because Apple was a real party in interest in the Unified IPR, which was decided before the Apple IPR. Accordingly, Gesture argued Apple was estopped and had no standing to appeal the final written decision issued in the Unified IPR. However, Gesture, despite knowing this fact for more than a year before the final written decision in the Unified IPR, did not raise the argument that Apple was a real party in interest in the Unified IPR proceeding during the Apple IPR proceeding.
With regard to claims 11 and 13, Apple’s claim construction, which the Board adopted, defined the claimed function “means for transmitting information,” in claim 11, as “at least a wireless cellular transceiver.” The Board found claims 11 and 13 were not unpatentable because Apple’s IPR petition lacked an explanation of how the “transmission unit” in Numazaki, alone or in view of the knowledge of a person of ordinary skill in the art, equates to the defined “wireless cellular transceiver” or a cell phone described in claim 13. Apple appealed this finding, arguing the Board applied the wrong legal standard for obviousness by considering only the explicit disclosure of Numazaki, and not considering the prior art in view of the knowledge of a person of ordinary skill in the art.
Finally, Gesture filed a cross-appeal, arguing that substantial evidence contradicted the Board’s invalidity decision. Gesture highlighted several terms it believed the Board failed to analyze correctly, particularly arguing that certain elements were not expressly disclosed in the prior art.
Issue(s)

Did Apple have standing to appeal given the estoppel provision of 35 U.S.C. § 315(e)(1) and the previously decided Unified IPR?
Did the Board apply the correct legal standard for obviousness and ignore Apple’s arguments in holding that Apple did not show claims 11 and 13 were unpatentable?
Did the Board err by finding a claim obvious even though certain elements were not expressly disclosed in the prior art?

Holding(s)

Gesture waived the argument that Apple lacked standing by not presenting it before the Board.
The Board applied the correct legal standard for obviousness and properly considered Apple’s arguments, including not only the explicit disclosure in Numazaki but also how a person of ordinary skill in the art would have understood the disclosure, and thus correctly found that claims 11 and 13 were not shown to be unpatentable .
The Board correctly found a claim to be obvious despite certain elements not being expressly disclosed in the prior art.

Reasoning
Whether Apple Was Statutory Estopped Under 35 U.S.C. Sec. 315(e)(1)
The Federal Circuit reiterated that an appellate court may not decide questions of fact in the first instance on appeal. This principle also applies to factual questions regarding the real party in interest. The Federal Circuit cited Acoustic Technology Inc. v. Itron Networked Sols., Inc., 949 F.3d 1360 (Fed. Cir. 2020), a similar case involving statutory estoppel under 35 U.S.C. § 315(b). In that case, the estoppel argument was unavailable because the patent owner did not make the common real party in interest argument to the Board, and thus waived the argument for purposes of appeal. The Federal Circuit held that the same outcome applies here, even though the estoppel here was based on a previous IPR decision, which occurred nine days earlier. The Federal Circuit held that the fact regarding the real party in interest was disclosed in the Unified Patents IPR more than a year before the final written decision. Accordingly, the court held that Gesture should have presented this argument to the Board during the IPR proceeding.
The Board Applied The Correct Legal Standard
The Federal Circuit found the Board correctly analyzed Numazaki, alone or in view of the knowledge of a person of ordinary skill in the art, and properly considered Apple’s evidence. The Federal Circuit held it is the petitioner’s burden to present a clear argument in the petition. The Board found, and the Federal Circuit agreed, that Apple failed to explain the evidence “with particularity” in the petition because the petition did not explain how the “transmission unit” in Numazaki, alone or in view of the knowledge of a person of ordinary skill in the art, equates to the defined “wireless cellular transceiver” or a cell phone. The Federal Circuit found the Board did not ignore Apple’s assertion regarding Numazaki in view of the knowledge of a person of ordinary skill in the art, but rather agreed with Gesture that Apple’s explanation was lacking. Accordingly, the Board applied the correct legal standard and correctly held claims 11 and 13 are not unpatentable.
Whether Elements Must Be Expressly Disclosed In The Prior Art
The Federal Circuit also addressed Gesture’s argument that claim elements need to be expressly disclosed in the prior art. The Federal Circuit relied on KSR Int’l Co. v. Teleflex Inc., where the Supreme Court held that express disclosures are not required to render a claim obvious. 550 U.S. 398, 418 (2007). The Federal Circuit further specified that Numazaki’s silence on how the claimed elements were implemented is irrelevant because, “in general, a prior art reference asserted under § 103 does not necessarily have to enable its own disclosure, i.e., be ‘self-enabling,’ to be relevant to the obviousness inquiry.” Accordingly, Gesture’s argument that Numazaki did not expressly disclose certain elements of the ’431 patent carried no weight.
FOOTNOTES
[1] Apple Inc. v. Gesture Technology Partners, LLC, No. 2023-1475, 2023-1533, pending cite (Fed. Cir. March 4, 2025)
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Arkansas’ Kids Social Media Law: Another One Bites the Dust

Arkansas’ second attempt at regulating minor’s access to social media – in the form of the Social Media Safety Act (SB 689) – has again been struck down as unconstitutional. The court permanently enjoined the state from enforcing the law. It was a modified version of Arkansas’ 2023 SB 396, that was also blocked. The plaintiff in both challenges was NetChoice, a group familiar to anyone following kids’ social media laws. As a result of NetChoice’s efforts, similar laws have been blocked in California, Utah, Maryland, Mississippi, Ohio, and Texas. Courts in those states, as in Arkansas, found that the laws were unduly burdensome on free speech, with overly broad content restrictions not tailored to prevent harm to minors.
Like prior social media laws, the Arkansas Social Media Safety Act would have required social media companies to verify that users were at least 18 years old. Or obtain verifiable parental consent for the minor to create an account. Companies that did not implement such checks would face monetary penalties. Social media companies would also have been required to use third-party vendors to perform reasonable age verification, which can include digitized identification cards, government-issued identification, or any commercially reasonable method. Social media companies would also have been prohibited from retaining any identifying information after access to the platform has been granted.
The story on children’s privacy and social media does not end here. States have continued to pass laws attempting to regulate kids’ use of social media. The Virginia legislature is seeking to amend the state’s data privacy law to restrict 16 year olds to one hour of social media use a day, along with requiring age screening mechanisms. The amendment is awaiting signature. Arkansas has also rolled out additional legislation targeting social media companies and children. Utah recently implemented app store age limits, with effective dates under the law ranging from May 2025 to December 2026. And Texas – despite prior social media challenges – has introduced House Bill 186. If passed, the law would require age verification to create accounts. Florida has also introduced legislation (SB 868) that would, among other things, permit law enforcement to view messages relevant to an investigation, allow parents to read all messages in a minor’s account, and prohibit minors from using accounts that have “disappearing” messages.
Putting it into Practice: While these laws have not thus far been successful, state legislatures continue to propose laws to regulate kids’ use of social media. We anticipate this flurry continuing, both from state law makers as well as efforts to push back on overly broad provisions.
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Three Takeaways From $745 Million Louisiana Verdict Against Chevron for Coastal Wetland Damage

Public companies can face significant liability based on past operations. While most industrial companies have long-term experience evaluating potential remediation obligations imposed by laws such as the federal Comprehensive Environmental Response, Compensation, and Liability Act, new legal theories and increased litigation from state and local governments heightens the potential for risk.
A recent $745 million verdict in a case filed by a Louisiana parish against Chevron for allegedly violating Louisiana’s State and Local Coastal Resources Management Act and associated regulations illustrates this new dynamic. The parish alleged that Chevron’s predecessor, Texaco, failed to refill canals that it had dredged and dumped contaminated wastewater, hastening erosion and land loss. The jury awarded $575 million to compensate the parish for land loss, $161 million for contamination, and $8.6 million for abandoned equipment.
This case is not alone. More than 40 similar lawsuits filed by coastal parishes and the State of Louisiana are pending against oil and gas companies. Below, we break down the facts that gave rise to the dispute, components of the jury’s verdict, and three takeaways for corporate risk managers.
Case Summary
Plaquemines Parish sits where the Mississippi River empties into the Gulf. Land loss is a significant issue, as it is in much of coastal Louisiana. The parish has lost roughly half its land area over the past century, and the state as a whole has lost roughly 2,000 square miles of land. The parish’s lawsuit claims Chevron’s actions exacerbated erosion. At trial, Chevron’s counsel pointed to another cause, levees that block Mississippi River sediment from reaching the Gulf, as the true reason for land loss.
The lawsuit specifically alleges that Chevron did not follow a state regulation requiring that its production areas “shall be cleared, revegetated, detoxified, and otherwise restored as near as practicable to their original condition.” Chevron argued, in part, that many of its operations were grandfathered in and so not required to follow the regulations.
The jury’s verdict is the latest development in a long legal journey that began when the parish filed suit in 2013. Since then, the case has made its way to federal district court, the Fifth Circuit (twice), and the US Supreme Court. The battle was principally jurisdictional. Chevron argued that its predecessor’s activities extracting and refining oil for the US military during World War II allowed it to invoke federal jurisdiction over the case. The Fifth Circuit ultimately disagreed, allowing the case to proceed in state court. Given Chevron’s intent to appeal, it may be several more years before the case is finally resolved.
Takeaways
Here are three takeaways from the jury’s verdict:

Climate-Related Liabilities Pose Increasing Risk. Fossil fuel producers have increasingly become entangled in tort litigation filed by state and local governments using a variety of legal theories. Some, like the Louisiana cases, are based on alleged violations of state environmental laws. Other cases use “greenwashing” or deceptive marketing theories, arguing that fossil fuel companies misled the public about climate change or their activities. New York and Vermont have enacted “climate superfund” laws to directly establish climate-related liability for fossil fuel companies.
Litigation Risk May Not Follow a “Red State vs. Blue State” Divide. While many climate-related lawsuits have been filed by Democratic-controlled state and local governments with an intent to address industries that they perceive to be underregulated, the Louisiana cases demonstrate that these lawsuits can be a tool of Republican-controlled governments as well, particularly when litigation can secure funding for projects that legislatures are reluctant to fund themselves. The Associated Press reports that Louisiana’s legislature has resisted industry efforts to legislatively invalidate the parishes’ claims.
Risk Managers Should Understand Impacts of Decreased Federal Funding for Programs and More State-Law Focused Claims. The change in presidential Administration is causing major changes to the environmental landscape. As the federal US Environmental Protection Agency (EPA) deregulates, state enforcement of state environmental laws may grow in importance over the coming years. State litigation may be less predictable to manage and value from a risk perspective than was federal enforcement. Compounding this challenge, reductions in federal funding from agencies including EPA and the Federal Emergency Management Agency may result in states increasingly deploying litigation to close funding gaps.

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Opthamalogy Group Cannot Turn Blind Eye to TCPA Requirements

The “healthcare exemption” to the TCPA’s consent requirements is one of the more misunderstood parts of the TCPA. And a recent case in North Carolina just gave a lesson to an ophthalmology group to help them see the requirements of the exemption a little more clearly.
Before discussing the case, let’s look at the healthcare exemption. The healthcare exemption exempts certain calls from the consent requirements found in 47 C.F.R. § 64.1200(a)(1)(iii) which require prior express consent when using an ATDS or an artificial or prerecorded voice to dial cell phones.
The healthcare exemption only applies in certain circumstances. First, the calls must be made by, or on behalf of, healthcare providers. Second, there are several conditions that the calls being made by healthcare providers are required to meet, including but not limited to:

Calls or texts must be sent only to the wireless telephone number provided by the patient
Calls or texts must be limited to the “following purposes: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions”
Calls or texts must not include any telemarketing, solicitation, or advertising
Calls or texts are limited to only one message (either by call or text message) per day and no more than three messages combined per week.
The healthcare provider must honor opt-out immediately.

In Hicks v. Raleigh Ophthalmology, P.C., 2025 WL 1047708 (E.D. N.C. Apr. 8, 2025), Deanna Hicks visited her optometrist about some vision issues. Her optometrist referred her to Raliegh Ophthalmoghy (“Raliegh”). Hicks had never provided Raliegh with any paperwork and had no prior patient relationship with Raliegh.
However, according to the complaint, Raliegh called Hicks using a pre-recorded call to her cell phone which stated the call was from Raliegh. Hicks used the automated menu to speak with an employee and told the employee she was not interested in booking an appointment. She received a text message from Raliegh which also requested her to book an appointment, and she responded “STOP” to the text message.
This did not end the communication carousel that Hicks found herself on with Raliegh. She received several more calls and she talked to live employees and asked to be removed from their list. Even after speaking to a manager, the calls continued. Unsurprisingly, Hicks sued, and the remaining count addressed in the opinion is that Raliegh called Hicks without her consent.
Raliegh raised three arguments in their motion to dismiss. The first is that they had the consent of Hicks because she gave her number to the optometrist and that was consent for Raliegh to call her. Hicks’s complaint states that she did not provide consent to Raliegh or provide them with paperwork. The Court stated that to infer there was consent for her optometrist to call Hicks, it is not reasonable to extend that to Raliegh as a third-party healthcare provider with no preexisting relationship with Hicks. Furthermore, consent is a fact issue and not suitable for a motion to dismiss.
Raliegh’s second argument is related to the healthcare exemption. The Court stated the healthcare exemption is limited to calls about a certain number of topics, and Raliegh “has not identified any authority to support that the TCPA authorizes an entity to make a prerecorded call to an individual to book an appointment prior to establishing a treatment relationship with that individual, and the court is unable to locate any.”
[SIDE NOTE: The Court did not address this, but I would also call out that these calls could be considered telemarketing under the TCPA because they were initiated for the purpose of encouraging the purchase of Raliegh’s services. Therefore, they would fail under the healthcare exemption due to that as well.]
The Court stated that even if the first call qualified under the exemption, the exemption requires the healthcare provider to “honor opt-out requests immediately”. Clearly, Raliegh failed to do so. Therefore, the second argument was insufficient for dismissal.
The third argument was related to the proposed class definition, but the Court said that argument is better left for opposing class certification. And therefore, Hicks survives the motion for dismissal.
This case illustrates the power of the healthcare exemption. But, much like Peter Parker, with great power comes great responsibility. To rely on the healthcare exemption, a healthcare provider, such as Raliegh, must not turn a blind eye to the requirements of the exemption. Because if the requirements are not met completely, the future reliance on the exemption for TCPA purposes could get very hazy.

Federal Layoffs and the Future of Labor Disputes – Understanding the Effects of the Recent Cuts to the Federal Mediation and Conciliation Service

Federal layoffs have been a focal point of President Trump’s administration, drawing both strong support and opposition. On March 15, Trump issued an executive order directing seven federal agencies to make workforce cuts. Among the agencies affected was the Federal Mediation and Conciliation Service. Downsizing this agency could prove problematic for resolving many employer-union disputes moving forward.
What Is the Federal Mediation and Conciliation Service?
The Federal Mediation and Conciliation Service (FMCS) is a small, independent federal agency that provides mediation and conflict resolution services for employer-union conflicts. FMCS works to prevent, curtail, and resolve work stoppages and labor disputes, including offering free services for collective bargaining mediation.
Established in 1947 under the Labor Management Relations Act (commonly known as the Taft-Hartley Act), FMCS has played a crucial role in preventing strikes and facilitating workplace negotiations. It has assisted some of the nation’s largest companies, including Starbucks, Boeing, and Apple. As of Fiscal Year 2023, FMCS mediated 2,467 collective bargaining negotiations, 1,265 high-impact grievance mediations, and 1,100 alternative dispute resolution (ADR) cases. It also conducted 1,566 single or multi-day training and intervention programs, provided 9,706 arbitration panels, and appointed 4,126 arbitrators.
What Did the Executive Order Say?
Trump’s executive order, titled Continuing the Reduction of the Federal Bureaucracy, was another phase in his ongoing effort to downsize the federal workforce. The order’s purpose was described as “continu[ing] the reduction in the elements of the Federal Bureaucracy that the President has determined are unnecessary.”
Each agency listed in the order was directed to eliminate the “non-statutory components and functions” and to “reduce the performance of their statutory functions and associated personnel to the minimum presence and function required by law.”
What Happened to FMCS Since the Executive Order?
The executive order did not provide specific instructions on how each agency, including FMCS, should implement the required reductions. However, within days of its issuance, FMCS removed approximately 95% of its staff. Prior to this reduction, FMCS employed around 200 individuals. Now, only about a dozen employees remain, and the number of mediators has dropped from 143 to just four.
Now What?
With only four mediators remaining, the number of mediations conducted will likely decrease, while wait times to schedule a mediation will likely increase. Employers and unions will have to seek alternative methods to resolve disputes, such as private mediators.
This may not be the end to FMCS as we know it. On April 4, 2025, 21 states filed a lawsuit in the United States District Court for the District of Rhode Island challenging Trump’s dismantling of three federal agencies, including FMCS. The lawsuit argues that the executive order violates the Administrative Procedure Act and the Constitution’s separation of powers by stripping the agencies of their discretionary powers.
For now, employers and unions may need to just get along and settle workplace disputes without the FMCS’ services. This small federal agency has become even smaller and will not be as available to help.
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California Court Clarifies CEQA Tribal Consultation Duties in First Published AB 52 Decision

On March 14, 2025, the California Court of Appeal for the First District issued the first published opinion interpreting Assembly Bill 52 (AB 52), the law governing tribal consultation procedures under the California Environmental Quality Act (CEQA). In Koi Nation of Northern California v. City of Clearlake (Cal. Ct. App., Mar. 14, 2025, No. A169438) (Koi Nation), the court held that a city’s failure to engage in “meaningful” consultation with a California Native American tribe violated AB 52, resulting in the invalidation of project approvals for a hotel and roadway development. The ruling significantly elevates the expectations placed on lead agencies and developers with respect to documenting and conducting tribal consultation under CEQA.

Overview of AB 52 Tribal Consultation Requirements
AB 52, enacted in 2014 and codified in Public Resources Code section 21080.3.1 et seq., establishes a formal process for consultation between CEQA lead agencies and California Native American tribes traditionally and culturally affiliated with the geographic area of a proposed project.
Consultation is only required if a tribe has submitted a written request to the lead agency for notice of projects within its traditional territory. Once a lead agency deems a project application complete, it must notify the tribe within 14 days. The tribe then has 30 days from receipt of the notice to request consultation in writing. If the tribe timely requests consultation, the lead agency must begin the process within 30 days. Importantly, consultation must begin prior to the release of a CEQA environmental document and must be conducted in good faith, with the goal of reaching a mutual agreement on mitigation measures to avoid or reduce impacts to tribal cultural resources.
The Dispute in Koi Nation
The case arose after the City of Clearlake (City) approved a Mitigated Negative Declaration (MND) for a proposed four-story hotel and associated road extension within the traditional territory of the Koi Nation. The Koi Nation had previously requested formal consultation pursuant to AB 52, and a designated representative attended an initial meeting with the City, which the City subsequently failed to document in the record.
Following the meeting, the tribal representative submitted a letter to the City requesting three mitigation measures to safeguard potential tribal cultural resources. However, the City did not respond to this letter or otherwise continue consultation. Instead, it adopted the MND, incorporating only one of the three proposed measures, and provided no documentation explaining its decision to end the consultation.
Court’s Findings: Consultation Must Be Meaningful and Documented
The Court rejected the City’s argument that its general coordination efforts and consideration of archaeological surveys (the latter of which were not shared with the representative, nor the Koi Nation generally) satisfied AB 52. The court emphasized that consultation must be “meaningful” and directed toward seeking agreement and found that the administrative record lacked sufficient evidence to support the City’s decision to terminate the consultation process. The City’s failure to respond to tribal input, to share the results of its archaeological survey, or to document its rationale for limiting mitigation measures proved fatal to its CEQA compliance.
Importantly, the Court distinguished between informal discussions held outside the AB 52 framework and the formal consultation process required by statute. While the Court acknowledged that the tribal representative’s correspondence could have more clearly referenced the Koi Nation, it concluded that the City’s reliance on that technical omission did not excuse its broader failure to engage in the statutorily mandated process. The opinion affirms that meaningful consultation is not merely procedural, but substantive — requiring reciprocal communication, thorough documentation, and a demonstrable effort to address tribal concerns.
Consequences for CEQA Noncompliance
As a result of the decision, the court vacated the City’s MND and all associated project approvals. The Court further ordered that consultation must recommence in accordance with AB 52 and awarded litigation costs to the Koi Nation. Notably, although the tribe had not submitted comments on the draft MND during the public review period, its earlier request for consultation and subsequent efforts to reengage with the City Council proved sufficient to preserve its claims.
Key Takeaways for Agencies and Developers
This decision signals that lead agencies and project proponents must treat tribal consultation not as a box-checking exercise, but as a substantive and confidential intergovernmental dialogue. Agencies must be prepared to demonstrate in the administrative record that they actively sought agreement with tribal representatives, responded in good faith to proposed mitigation measures, and documented the rationale for any decisions to limit or reject tribal input. Although AB 52 mandates confidentiality regarding tribal cultural resources, the lead agency must still summarize the consultation process in environmental review documents and maintain a sealed appendix for judicial review, as occurred in Koi Nation.
For developers, the case reinforces the importance of early and continuous engagement with both lead agencies and tribes. Incomplete consultation records or failure to substantively address tribal concerns may result in significant project delays or invalidated approvals. To ensure compliance and reduce litigation risk, developers should work closely with CEQA counsel to structure consultation efforts that meet both the procedural and substantive requirements of AB 52.