Final Touches: President Trump Rounds Out DOL Leadership with Two Nominees
Takeaways
Nominated to head the DOL Wage and Hour Division, Andrew Rogers would return to the agency after a stint at the EEOC.
Nominated for DOL solicitor of labor, Jonathan Berry is an attorney in private practice and had authored the DOL chapter of the Project 2025 policy platform, which backs compliance assistance over enforcement.
If confirmed, they will join newly installed Labor Secretary Lori Chavez-DeRemer to lead the DOL and employers can expect changes in direction at the agency.
Article
President Donald Trump has nominated Andrew Rogers to lead the Department of Labor’s (DOL’s) Wage and Hour Division (WHD). He also nominated Jonathan Berry to serve as solicitor of labor.
Trump sent the nominations to the Senate on Mar. 31, 2025. If confirmed, the nominees will join Labor Secretary Lori Chavez-DeRemer, who took the helm at the DOL on Mar. 11.
Andrew Rogers
Trump has tapped Andrew Rogers to lead the WHD, which oversees enforcement of the Fair Labor Standards Act (FLSA), laws regulating prevailing wages and other provisions related to federal contracts, and numerous other workplace statutes.
If confirmed, Rogers would come to the post with significant administrative agency experience. During the first Trump Administration, he was a senior advisor in the WHD, where he focused primarily on regulations and opinion letters. (The Trump DOL had a robust practice of publishing FLSA opinion letters, which are useful guidance directives for employers. Opinion letters dropped off considerably during the Biden Administration, which issued only three.) He then moved to the Equal Employment Opportunity Commission (EEOC) as chief counsel to Republican commissioner Andrea Lucas, who now serves as acting chair. Rogers is currently the EEOC’s acting general counsel. Previously, he practiced employment law at a management-side firm.
Jonathan Berry
Trump has nominated Jonathan Berry to be solicitor of labor, the DOL’s chief lawyer. Berry is managing partner at a Washington firm with a significant U.S. Supreme Court and administrative law practice. Berry served in the first Trump Administration as acting and principal deputy assistant secretary for policy at the DOL, where he oversaw agency rulemaking.
Most recently, Berry authored the “Department of Labor and Related Agencies” chapter in the Heritage Foundation’s Project 2025 policy document. The document calls for DOL to focus on compliance assistance over enforcement and for restrictions on the use of sub-regulatory guidance documents.
Specific policy prescriptions include amending the FLSA to:
Permit private-sector workers to accumulate paid time off in lieu of overtime pay;
Allow employers to set a two- or four-week pay period (rather than the 40-hour workweek) over which to calculate overtime hours worked;
Clarify that benefits do not need to be included in calculating the regular rate for overtime purposes; and
Require a time-and-a-half premium for working on the Sabbath.
Other policy recommendations in the Project 2025 document include measures DOL could adopt without Congressional action, such as:
Restoring the Trump-era independent contractor rule;
Clarifying that reimbursement for home office expenses is not part of an employee’s regular rate; and
Clarifying that an employee who teleworks “need only record time if the quantity of work assigned for that day exceeds the usual amount of work that employee performs so that the employee need not track every time he logs in and out and the employer need not do so either.”
Berry may soon be in a position to enact some of these policy prescriptions.
Other DOL Appointments
If confirmed, Rogers and Berry will round out the administration’s DOL leadership. The Senate has confirmed other key leadership posts at the agency, including Lori Chavez-DeRemer, who has taken the helm as secretary of labor, and Keith Sonderling, a previous WHD acting administrator and deputy administrator, for deputy labor secretary.
Chavez-DeRemer was a former U.S. Representative (R-Or.) and served on the House Education and the Workforce Committee. Her nomination cleared the Senate with bipartisan support, despite some misgivings from Republicans over her past support for the PRO Act, labor-backed legislation that would make it easier for unions to organize. Trump indicated his nomination of Chavez-DeRemer was a nod to his supporters in organized labor. Chavez-DeRemer distanced herself from the PRO Act during her nomination hearing.
What’s At Stake
Currently, DOL faces litigation on numerous fronts, including at federal courts of appeal, over key Biden Administration regulations. The 2024 rule increasing the minimum salary for application of the executive, administrative, and professional (EAP) exemptions has been enjoined by a federal district court, but the DOL is appealing that decision. The 2024 independent contractor rule currently in effect has withstood numerous legal challenges, but litigation is ongoing. The DOL has asked the courts for more time to review the rules and the litigation to determine how it will proceed. Once the DOL leadership team is on board, we should have a clearer signal on whether the agency will continue defending these regulations and whether it will undertake new rulemaking.
We may also see a renewed focus on assisting employers with complying with the FLSA and the other statutes the agency enforces, as well as restoring avenues for employers to report and promptly remedy inadvertent violations without risk of costly litigation.
Plaquemine Parish Awarded $740 Million in Landmark Case
Jurors found that energy giant Texaco, acquired by Chevron in 2001, had for decades violated Louisiana regulations governing coastal resources by failing to restore wetlands impacted by dredging canals, drilling wells, and billions of gallons of wastewater dumped into the marsh.
The jury awarded $575 million to compensate for land loss, $161 million to compensate for contamination, and $8 million for abandoned equipment.
The case will signal how juries will respond in the 40 other landmark lawsuits that were brought to hold oil and gas companies liable for Louisiana’s coastal land loss.
Jurors found that energy giant Texaco, acquired by Chevron in 2001, had for decades violated Louisiana regulations governing coastal resources by failing to restore wetlands impacted by dredging canals, drilling wells and billions of gallons of wastewater dumped into the marsh. The jury awarded $575 million to compensate for land loss, $161 million to compensate for contamination and $8 million for abandoned equipment.
www.wwltv.com/…
Top Five Labor Law Developments for March 2025
The National Labor Relations Board once again lacks a quorum to issue decisions. The U.S. Court of Appeals for the D.C. Circuit granted the Trump Administration’s emergency request to stay a lower court’s decision reinstating Board Member Gwynne Wilcox. Wilcox v. Trump, et al., No. 25-5057 (D.C. Cir. Mar. 28, 2025). In a 2-1 decision, the court majority ruled the Trump Administration is likely to demonstrate that President Donald Trump had authority to terminate Wilcox, finding the U.S. Supreme Court’s decision in Seila Law, 591 U.S. 197 (2020), controlling. The court explained that while Humphrey’s Executor, 295 U.S. 602 (1935), upheld the constitutionality of for-cause removal protections for federal agency leaders, Seila Law subsequently narrowed that decision as applying only to multimember agencies that “do not wield substantial executive power,” and thus is inapplicable to the Board. Wilcox filed a petition for en banc review of the panel’s decision.
President Trump nominated management-side attorney Crystal Carey as the next Board general counsel (GC). If confirmed by the Senate, Carey will serve as the head of the Board’s prosecutorial arm. A former Board attorney, Carey is expected to reverse many of the pro-labor initiatives set by her predecessor, Jennifer Abruzzo. While the GC’s office cannot effectuate changes in Board policy unilaterally, the GC can advance cases and arguments that give the Board opportunities to change the law and return to more employer-friendly standards. Interim GC William Cohen has already withdrawn several exceptions to administrative law judges’ decisions filed under Abruzzo’s tenure that sought precedent shifts. He also withdrew various GC memoranda that sought test cases to pursue such precedent shifts.
President Trump’s executive order (EO) targeting the Federal Mediation and Conciliation Service (FMCS) limits the use of federal mediators to resolve labor disputes and prevent work stoppages. The EO sought to reduce and eliminate certain federal agencies’ staffing levels to the maximum extent allowed by law. Historically, FMCS has played an essential role between employers and unions, providing mediation services to prevent and resolve labor disputes, including impending or ongoing work stoppages and contentious collective bargaining negotiations. Two weeks after the EO, FMCS placed nearly all staff on administrative leave to comply with the directive. FMCS’s dismantling could lead to an increase in strikes and labor disruptions and prolong collective bargaining negotiations.
President Trump issued an EO exempting certain federal agencies and subdivisions from collective bargaining. Pursuant to the EO, covered agencies (including the Department of Defense, Department of Justice, and the Department of State) are no longer required to engage in collective bargaining with unions. Further, subsequently issued guidance generally limits performance improvement plans to 30 days and requires the covered agencies and subdivisions to revert their discipline and performance policies to those established during the first Trump Administration. The guidance explains that the EO aims to strengthen performance accountability in the federal workforce and reduce procedural impediments to separating poor performers who may be protected by collective bargaining agreements.
The U.S. Chamber of Commerce and other business groups are urging the U.S. Court of Appeals for the Eleventh Circuit to find the Board’s order banning captive audience meetings violates the First Amendment. No. 24-13819 (11th Cir. Mar. 19, 2025). The case stems from a Board decision that prohibited employers from holding mandatory employee meetings to advocate against unionizing, overturning longstanding precedent, and marking a pivotal shift in how employers can communicate with their employees about unionization. In a joint brief, the group asserts the ban on captive audience meetings is content and viewpoint discriminatory and unlawfully regulates employers’ free speech rights. Eleven states have enacted laws containing restrictions on such meetings: Alaska, California, Connecticut, Hawaii, Illinois, Maine, Minnesota, New York, Oregon, Vermont, and Washington. Many believe such state laws are preempted by the National Labor Relations Act.
Court Grants Interlocutory Appeal on AI Fair Use Issue
We previously reported on the groundbreaking AI Fair Use ruling in the Thomson Reuters Ross Intelligence case, where the court found that based on the facts of this case fair use was not a defense. Ross Intelligence moved, pursuant to 28 U.S.C. § 1292(b), for certification of the Court’s Order, for interlocutory appeal and for a stay pending that appeal. The Court has now granted that request.
The Court noted: “Though I remain confident in my February 2025 summary judgment opinion, I recognize that there are substantial grounds for difference of opinion on controlling legal issues in this case. These issues have the potential to change the shape of the trial. I thus certify the following two questions to the Third Circuit: (1) whether the West headnotes and West Key Number System are original; and (2) whether Ross’s use of the headnotes was fair use. A short opinion further explaining my reasoning will follow.”
In its brief in support of its motion, Ross argued that this case presents “urgent questions” governing AI. It asserted that the legal theories in this case “understate the importance of originality and overstate the scope of copyright protection.” It further asserts that the evident and predictable result is a pronounced chill on AI innovation, as copyright law is used to stop “fair learning”[1] based on factual statements. Based on this it concludes that Appellate review of these questions cannot wait.
A district court may certify an order for interlocutory appeal when it finds “that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b)(2).
ROSS requested certification on two questions: (1) whether the Westlaw headnotes fail the Copyright Act’s originality requirement because the notes lack “creative spark” and (2) whether ROSS’s use of .076% of Westlaw’s headnotes to help train an AI search engine is transformative or otherwise a fair use of the headnotes.
ROSS asserted that the issues presented are controlling questions of law and that there are substantial grounds for differences of opinion on each question. Interestingly, as evidence of substantial grounds for differences of opinion, ROSS cited the Court’s own two conflicting opinions in this case. See Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., 694 F. Supp. 3d 467, 478, 487 (D. Del. 2023) (Thomson Reuters I) (where the Court concluded that originality and fair use were jury questions) and Thomson Reuters II, 2025 WL 458520 (where the Court had a “belated insight” that inspired a “change of heart,” and granted summary judgment to Thomson Reuters on both originality and fair use).
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FOOTNOTES
[1] See paper on Fair Learning by Professor Lemley et al.
Preparing for the Implementation of Missouri Paid Sick Time: Key Deadlines and Compliance Requirements
The earned paid sick time provisions of Proposition A are set to take effect on May 1, 2025. Missouri Proposition A requires employers to provide employees working in Missouri at least 1 hour of sick leave for every 30 hours worked and allows carryover of up to 80 of such hours per year. The law applies to almost all Missouri employees, including full-time, part-time and temporary with limited exceptions. For more details on the requirements and background of this paid sick leave law, see our prior blog posts on Missouri Proposition A requirements here and litigation challenge here.
While ongoing litigation and legislative efforts seek to delay or modify certain aspects of the law, these initiatives are unlikely to affect the start date or the notice period required by the statute. Therefore, it is essential for employers to begin preparing for the implementation of the law to ensure compliance with the statutory requirements, including the mandatory notice and poster provisions.
Notice and Poster Requirements
Written Notice to Employees
Employers are required to provide written notice of the earned paid sick time policy to all employees by April 15, 2025. The notice must be provided on a single sheet of paper, using a font size no smaller than 14-point. This notice should be distributed along with the employer’s updated written policy.
The Missouri Department of Labor & Industrial Relations has provided a standardized notice for employers.
Poster Display Requirement
In addition to the written notice, Proposition A mandates that employers display a poster detailing the earned paid sick time policy in a “conspicuous and accessible place” at each workplace. This poster must be displayed starting April 15, 2025. The Missouri Department of Labor & Industrial Relations has also provided a poster for this purpose.
Litigation Update
On March 12, 2025, the Missouri Supreme Court heard oral arguments in a case brought by various business groups and associations challenging the constitutionality of Proposition A. The plaintiffs argue that the Proposition is unconstitutional due to its inclusion of both minimum wage and paid sick time issues on the same ballot.
While the Supreme Court has not yet issued a ruling, it typically takes between 100 and 200 days for the Court to render an opinion. Although the outcome of the case may ultimately affect certain provisions of the law, employers should continue preparing for the implementation of Proposition A as currently written, effective May 1, 2025.
Legislative Update
On March 13, 2025, House Bill 567 passed in the Missouri House of Representatives. This bill seeks to repeal the paid sick leave provisions of Proposition A, delay the scheduled minimum wage increase, and eliminate the annual adjustments to the minimum wage based on the price index. The bill cleared a public hearing in the Senate on March 26, and an executive session will be held on April 7.
If the bill passes the Senate and is signed into law by the Governor, it will not take effect until August 28, 2025. As a result, Proposition A will remain in effect beginning May 1, 2025, and employers should prepare for the law to be implemented as currently written.
Resources and Support
The Missouri Department of Labor & Industrial Relations has developed an overview and frequently asked questions (FAQ) section on its website to assist employers in understanding the requirements of Proposition A and the earned paid sick time benefits.
Missouri employers need to review and likely need to update their existing policies regarding sick time and/or paid time off to comply with Missouri paid sick leave requirements.
Two Class Actions Target Supplement Promoted for Increasing GLP-1
A plaintiff has filed two class actions targeting a dietary supplement promoted as increasing GLP-1. One case is in federal court in New York, while the other is in California state court. Both cases allege false advertising. According to the complaints, Lemme, a brand co-founded by Kourtney Kardashian Barker, offers a product, Lemme GLP-1 Daily, which contains orange extract, saffron extract, and a clinically tested lemon extract.
Among other advertising, the complaints point to a product webpage with the headline, “How GLP-1 your ‘un-hunger’ hormone works.” The explanation that follows notes, “GLP-1 helps you feel full and supports glucose metabolism. But factors like age, lifestyle, and diet can affect your body’s ability to produce GLP-1. That’s where we come in.” The complaints also identify social media posts with claims such as, “[T]his will increase your body’s natural GLP-1 level (promotes fat loss + reduces hunger).”
The complaints concede that clinical studies exist on the lemon extract in Lemme GLP-1, but the complaints argue that the studies “rely on sample sizes that are far too small to derive valid statistical conclusions.” Also, according to the complaints, even if the studies were valid, after four months, results showed only a “17 percent” increase in GLP-1 and “failed to show any decrease in body weight, body-mass index (BMI), or waist/hip ratio.” The “number of calories consumed did not change” either.
The complaints further allege “GLP-1 concentration in the blood increases by approximately 400% to 900% after eating”; thus, it “is unsurprising” that a “mere 17% increase in GLP-1 would have no discernible effect on caloric consumption, BMI, or weight loss.” The complaints also contend that a “1 mg weekly dose of Ozempic or Wegovy results in a concentration of synthetic GLP-1” that is “300,000% to 600,000% greater” than typical concentrations, with a “half-life of 7 days instead of 2 minutes.”
Keller and Heckman will continue to monitor activity on advertising around GLP-1.
Michigan Supreme Court Confirms: No Independent Cause of Action for Breach of Implied Covenant of Good Faith
Sometimes an expected result is still newsworthy. On March 27, 2025, in Kircher v Boyne USA, Inc., the Michigan Supreme Court held that there is no independent cause of action for breach of the implied covenant of good faith and fair dealing inherent in contracts. This is no surprise; lower state courts and federal courts interpreting Michigan law had consistently reached the same conclusion. Kircher represents the first such holding by the Michigan Supreme Court, however, and thus it brings certainty to this area of the law.
As Kircher explains, every contract contains an implied covenant of good faith and fair dealing. “Where a party to a contract makes the manner of its performance a matter of its own discretion, the law does not hesitate to imply the proviso that such discretion be exercised honestly and in good faith.”[1] In other words, if a party has flexibility in how it performs a contract, it must use that flexibility in good faith. If it does not, then it could be liable for breach of the contract.
The duty of performing in good faith cannot alter a contract’s terms, however. Each party to a contract is required to do only what it bargained to do, nothing more. A party to a contract that regrets the bargain it struck is not free to argue “Bad faith!” to get out of its deal.
The Kircher court decided that is what the plaintiff was trying to do. The plaintiff and defendants had agreed in a contract that the defendants would be required to purchase the plaintiff’s shares in a certain company. They settled on a mathematical formula to calculate the price at which the defendants would purchase the shares. Neither party disputed this.
Circumstances changed, though, and the share price yielded by the formula fell below $0 per share. The contract allowed the parties to change the formula if they both wished. Plaintiff sued, claiming that the duty of good faith required defendants to agree to a different formula that would yield a result above $0 per share. The Supreme Court disagreed. The formula the parties had selected gave defendants no flexibility in how the share price was to be calculated, and thus there was no question of “good” or “bad” faith in the computation. The fact that parties could change the formula if they so agreed did not mean that they must do so because of changed circumstances. Plaintiff had to live with the bargain as originally negotiated and could not alter it with the benefit of hindsight.
Although it may not feel “fair” that the formula to which plaintiff previously agreed now yields unfavorable results, that is the agreement the parties had struck. Had the Kircher court ruled otherwise, it would allow the fairness of a contract to be called into question whenever a party had regrets. The decision by the Kircher court thus brings a welcome dose of certainty. Parties can rely on the terms of the contracts that they draft, without concern that a court might later second guess those terms at the request of a disgruntled party.
[1] Kircher, quoting Burkhardt v City Nat’l Bank of Detroit, 57 Mich App 649, 652; 226 NW2d 678 (1975).
Venezuela’s TPS Designation: Federal Judge Issues Nationwide Order Temporarily Reinstating Program
A U.S. district court judge recently issued a temporary nationwide order postponing Secretary of Homeland Security Kristi Noem’s decision to cancel the extension of the Temporary Protected Status (TPS) designation for Venezuela, and the overall termination of TPS designation. The court’s decision sets aside the implementation of these actions until the court issues its final decision on the merits in National TPS Alliance v. Noem.
Quick Hits
On March 31, 2025, a U.S. district court judge issued an order temporarily reinstating Venezuela’s TPS pending further litigation.
Shortly after taking office, Secretary of Homeland Security Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela and the overall 2023 TPS program for Venezuelans.
This court order ensures that Venezuelan TPS holders retain their legal status and employment authorization through October 2, 2026, while the case is being decided.
Background
The secretary of Homeland Security may designate a foreign country for TPS due to temporary conditions such as ongoing armed conflict, an environmental disaster, epidemics, or other extraordinary and temporary conditions that prevent nationals from safely returning to that country. TPS beneficiaries who meet the parameters of such programs are protected from removal from the United States, and they can receive work and travel authorization.
In 2021, Venezuela was initially designated for TPS and, through extensions, this program remains in place. In October 2023, Venezuela was redesignated for TPS, expanding the program and providing additional relief for citizens of Venezuela who met qualifying criteria. The 2021 and 2023 designations were most recently extended by the Biden administration on January 17, 2025, for eighteen months, to October 2, 2026.
On January 28, 2025, Secretary Noem canceled the extension of the 2021 and 2023 TPS designations for Venezuela. This decision reinstated the expiration of TPS for Venezuelan beneficiaries under the 2021 designation to September 10, 2025, and for new applicants under the 2023 designation to April 2, 2025.
On February 1, 2025, Secretary Noem terminated the 2023 TPS designation, ending temporary legal protections for beneficiaries under the 2023 designation on April 7, 2025.
The Nationwide Order
On March 31, 2025, U.S. District Court Judge Edward Chen issued a nationwide order postponing Secretary Noem’s cancelation of the eighteen-month extension for the 2021 and 2023 TPS designations and the termination of the 2023 TPS designation. This order will remain in place until the court issues its final decision on the merits in National TPS Alliance v. Noem.
Analysis and Impact
The U.S. district court’s order temporarily results in the following, pending further litigation:
Venezuela’s 2023 TPS designation is reinstated.
The eighteen-month extension for 2021 and 2023 TPS designations is reinstated, providing legal protected status for Venezuelan TPS holders through October 2, 2026.
The Employment Authorization Documents (EAD) issued under the 2021 or 2023 TPS designations with an expiration date of September 10, 2025; April 2, 2025; March 10, 2024; or September 9, 2022, remain valid through April 2, 2026.
USCIS issued guidance on I-9 completion. The USCIS guidance instructs employers “to enter April 2, 2026, pending further litigation, on Form I-9 as the new expiration date of the automatically extended EAD.”
Venezuelan TPS holders may also demonstrate a 540-day automatic extension of their EAD “Card Expires” dates upon presenting:
an EAD showing category code A12 or C19; and
a Form I-797 Receipt Notice confirming a pending I-765 application for a category code A12 or C19 EAD renewal showing a “Received Date” between January 17, 2025, and September 10, 2025.
The U.S. district court’s order does not impact TPS designations for other countries.
Summary Judgment Granted in Heavy Metals in Chocolate Class Action
A district court judge has granted Trader Joe’s motion for summary judgment in a class action lawsuit alleging that the company’s dark chocolate bars contain the heavy metals lead, cadmium, and arsenic. In granting summary judgment, the court found that Trader Joe’s “did not have exclusive knowledge that the dark chocolate bars contained or had a material risk of containing heavy metals,” which is a requirement under the applicable state consumer protection laws.
In January 2023, Trader Joe’s was hit with 10 class action complaints claiming the company failed to disclose the presence of heavy metals in dark chocolate products. The complaints were consolidated in April 2023, and claims for violations of consumer protection laws in Washington, Illinois, and New York survived a motion to dismiss. Each of the claims under these state laws requires exclusive knowledge of omitted information and excludes claims if that omitted information was reasonably obtainable or easily discoverable by consumers.
Trader Joe’s presented articles from as early as 2002 reporting the presence of heavy metals in chocolate products. The judge rejected arguments that the information was not reasonably obtainable because the plaintiffs were not aware that the products contained heavy metals, stating that “[w]hether information on the presence of heavy metals in the products was reasonably obtainable (or easily discoverable) does not depend on what individual plaintiffs were or were not aware of . . . [but] turns on what information was reasonably obtainable or easily discoverable by consumers about the presence of heavy metals in dark chocolate.”
The judge did note, however, that if the plaintiffs had alleged that Trader Joe’s failed to disclose a specific amount of heavy metals, high levels of heavy metals, or that the levels exceeded some kind of regulatory threshold, then the information might not be reasonably obtained by consumers.
The presence of heavy metals in chocolate has been the subject of studies and lawsuits in recent years. Keller and Heckman will continue to monitor activity related to heavy metals in chocolate and other foods.
Lost Profits for Unpatented Products Dry Up in Wash World
Wash World Inc. v. Belanger Inc. raises the question whether lost profit damages for patent infringement can extend to profits related to unpatented products sold with a patented product. As with many legal issues, including the lost profits issue I addressed in my recent post, the answer to the question is “sometimes.”
In Wash World, the Federal Circuit confronted this question in reviewing a damages judgment based on a jury verdict awarding the patent owner, Belanger, lost profits on its (1) patented car wash system due to sales by the infringer, Wash World, and (2) unpatented dryers sold with its patented car wash system. The jury awarded $9.6M, one of the damages figures advanced by Belanger’s damages expert. On appeal, Wash World challenged $2.6M of the award tied to Belanger’s lost profits associated with its unpatented dryers. Wash World argued that this portion of the award was improper because Belanger failed to prove any functional relationship between the patented car wash system and unpatented dryers.
After concluding that Wash World had preserved its remittitur argument, the circuit court turned to the merits of the argument. It first noted that the district court had improperly analyzed the issue as one of “apportionment” rather than of “convoyed sales.” The circuit court observed that apportionment applies “when seeking lost profits for a device covered by the patent in suit,” quoting Rite-Hite, but that where, “as here, the issue is incremental damages for portions of products not covered by the patent, the proper inquiry is whether the unpatented components are convoyed sales.” The Rite-Hite test of whether profits from the sale of unpatented components may be recovered as convoyed sales turns on whether both the patented and unpatented components “together were considered to be components of a single assembly or parts of a complete machine, or they together constituted a functional unit.”
In reviewing the record of the district court, the Federal Circuit concluded that no reasonable jury could have found the unpatented dryers constituted a functional unit with the patented car wash system. Belanger introduced testimony from its damages expert that the unpatented dryers were sold as a package with the patented car wash systems, but the court held that evidence of such packaged sales was insufficient to show the required functional relationship. The court also rejected Belanger’s argument that the jury’s general damages verdict was supported by other evidence. Indeed, it held that Belanger was judicially estopped from arguing this point because it had repeatedly told the district court that “the jury accepted [its expert’s] damages calculation.” The court concluded by vacating the damages portion of the judgment and remanding the case to the district with an order to remit the damages award by $2.6M.
It is easy to imagine a better result for Belanger with respect to recovering lost profits associated with the unpatented dryers sold with the patented wash systems. First, with the benefit of hindsight, Belanger could and arguably should have included a claim in its patent that encompassed an integrated wash-dry system. This would have enabled Belanger to claim lost profits on the entire integrated system under Panduit. Second, even with the dryers being unclaimed, Belanger should have introduced evidence, if available, that the wash and dry systems sold together were components of a single assembly or parts of a complete machine, or they together constituted a functional unit. Technical expert testimony could have been introduced on this point, and the damages expert could have relied on this in opining that Belanger could recover lost profits for the unpatented dryers sold with the patented wash systems.
Court Rejects Challenge to FDA Approval of Ammonia-Reducing Animal Drug
Yesterday the U.S. District Court for the Northern District of California granted summary judgment to FDA and drug manufacturer Elanco Animal Health, thereby rejecting a challenge to FDA’s approval of Experior, a drug intended to reduce ammonia production in feedlot cattle. See 20-cv-03703-RS (Law360 subscription required).
Plaintiffs (three advocacy groups) had challenged the approval and argued that FDA failed to comply with the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the National Environmental Policy Act (NEPA) in approving the drug.
Specifically, in regard to drug efficacy, the Court held that FDA had properly found that there was substantial evidence supporting approval of Experior for the “reduction of ammonia gas emissions per pound of live weight and hot carcass weight in beef steers and heifers fed in confinement for slaughter during the last 14 to 91 days on feed.” The conclusion was based on 5 well-controlled studies consisting of a total of 536 animals and the Court held that it was irrelevant that the mechanism of action was not well established and that FDA did not require proof of any particular environmental results.
In regard to the safety of the new animal drug, the Court held that FDA appropriately evaluated human food safety, user safety, and target animal safety and that Plaintiffs’ arguments would require the Court to inappropriately second-guess FDA’s judgment.
Finally, with regard to NEPA, the Court held that FDA’s Finding of No Significant [Environmental] Impact (FONSI) was a reasoned decision that was not inconsistent with the approval of an ammonia reducing drug.
Fourth Circuit Stays Injunction on DEI Executive Orders – What Federal Grantees and Contractors Need to Know
As we shared in a previous client alert, on February 21, 2025, a U.S. District Court judge issued a preliminary injunction in National Association of Diversity Officers in Higher Education et al. v. Trump et al., Dkt. No. 1:25-cv-00333 (D. Md. Feb. 21, 2025) that blocked portions of the Trump administration’s executive orders on diversity, equity, and inclusion programming (“DEI”) by federal contractors and grantees and private sector entities. On March 10, 2025, the same U.S. District Court issued a clarified preliminary injunction, explaining that the February 21 preliminary injunction applied to all federal executive branch agencies, departments, and commissions, but not the President.
The federal government appealed the preliminary injunction to the Fourth Circuit Court of Appeals, arguing that the Executive Orders instructed agencies to enforce existing laws without violating First Amendment rights. On Friday, March 14, 2025, the Fourth Circuit issued an Order staying the preliminary injunction. This stay means that executive agencies may now enforce the portions of the January 20 and January 21, 2025 Executive Orders previously enjoined, including:
Executive agencies may terminate “equity-related grants or contracts” (the “Termination Provision”);
Executive agencies may require federal contractors or grantees to certify that they do not operate illegal programs promoting DEI and agree that they are in compliance with “all applicable Federal anti-discrimination laws” (the “Certification Provision”); and
The Attorney General may take “appropriate measures to encourage the private sector to end illegal discrimination and preferences” including by identifying “potential civil compliance investigations” to deter illegal DEI programs (the “Enforcement Provision”).
The Fourth Circuit’s order also clarifies that these Executive Orders only require the executive agencies that are enforcing these Executive Orders to enforce them consistent with current federal rules and law, which prevent the agencies impinging on protected speech rights. As a reminder, federal civil rights laws have not changed under the new administration (that would require an act of Congress or a court holding), so federal grantees and contractors that were complying with federal law in their programing prior to January 20 and 21, 2025 would still be in compliance with those laws today.
Notable for legal scholars, after the Fourth Circuit unanimously stayed the preliminary injunction, each judge offered a concurring opinion. Chief Judge Diaz reasoned that “how the administration enforces these executive orders … may well implicate cognizable First and Fifth Amendment concerns.” Judge Harris recognized the executive orders should only terminate funding as “subject to applicable legal limits,” only for “conduct that violates existing federal anti-discrimination law.” Judge Rushing stated that “the government is likely to succeed in demonstrating that [a narrow application of] the challenged provisions of the Executive Orders,” do not violate the First or Fifth Amendments.
Separately, Judge Rushing reasoned that a nationwide “scope of the preliminary injunction alone should raise red flags” as it “purported to enjoin nondefendants from taking action against nonplaintiffs.” It remains to be seen whether other Circuit Courts will take a similar stance.
What does this mean for institutions of higher education?
As shared in our prior client alert, institutions should review their policies or programs and confirm that their practices comply with existing federal discrimination law. Institutions should also review any federal agency requests for certification or changing terms and conditions related to their federal grants and contracts. Please continue to monitor developments and consult legal counsel with concerns related to compliance.