Court Reversed Judgment Against A Trustee Due To Jury Instruction Errors And Also Held That A Party Is Not Entitled To A Jury Trial In Trustee Removal Actions
In White v. White, an income beneficiary of a trust was retained to manage ranch property. 704 S.W.3d 250 (Tex. App.—El Paso 2024, no pet.). He later became trustee of the trust and ratified his employment and the employment of several of his family members. Two of his brothers, who were also income beneficiaries, sued him for breach of fiduciary duty and sought damages, removal and other relief. Primarily, the brothers alleged that the trustee breached his fiduciary duty by: failing to act as a prudent investor, failing to make any income distributions, engaging in self-dealing by employing himself and his family, and paying himself and his family excessive compensation. After a jury trial, the trial court awarded relief against the trustee:
[T]he trial court entered a “Final Judgment Nunc Pro Tunc,” awarding a million dollars in damages to “the trustee of the [White] Trust” for the “loss or depreciation in value” of the White Trust estate. In addition, the trial court awarded Mac and Beau $1.5 million each in exemplary damages, in their capacity as income beneficiaries of the White Trust. The trial court removed Jim as trustee due to the breach of fiduciary duties and made several modifications to the White Trust, including dividing it into four separate “Division Trusts” to be administered by each of the siblings, giving them each an undivided interest in the Ranch and the ability to partition and sell their interests in the same.
Id. The trustee appealed.
The court reviewed the trustee’s complaint that the jury charge improperly placed the burden on him to establish that he complied with virtually all of his fiduciary duties when he only shouldered the burden to establish that he did not engage in any self-dealing transactions that resulted in a profit to him at the expense of the trust beneficiaries. The court reviewed the law on the burdens of proof for breach of fiduciary duty claims:
The elements of a breach of a fiduciary duty claim are: (1) a fiduciary relationship between the plaintiff and defendant; (2) a breach by the defendant of his fiduciary duty to the plaintiff; and (3) an injury to the plaintiff or benefit to the defendant as a result of the defendant’s breach. In general, to recover for a breach of fiduciary duty, a plaintiff has the burden of proving each element. A claim of self-dealing is essentially a subset of a claim for breach of fiduciary duty, but with the additional requirement that the fiduciary used the advantage of his position to gain a benefit or profit at the expense of those to whom he owes a fiduciary duty. Thus, there can be no finding of self-dealing in the absence of evidence that a fiduciary profited from his actions. It is well-established that “when a plaintiff alleges self-dealing by the fiduciary as part of a breach-of-fiduciary-duty claim, a presumption of unfairness automatically arises, which the fiduciary bears the burden to rebut.” Courts have explained that this burden requires the “fiduciary to prove (a) that the questioned transaction was made in good faith, (b) for a fair consideration, and (c) after full and complete disclosure of all material information to the principal.” Thus, in cases of self-dealing, a jury charge properly places the burden on the defendant that a transaction in which he made a profit was “fair and equitable” to plaintiff, that the defendant acted in good faith and did not use the advantage of his position to gain a benefit at the plaintiff’s expense, and that defendant “fully and fairly disclosed all important information” to the plaintiff concerning the transaction.
Id. The court held that the trustee preserved error in the charge question submitting globally both the self-dealing claims with the other non-self-dealing breach claims: “Jim acknowledged that Mac and Beau alleged he had engaged in self-dealing with respect to the employment agreements, making Question One appropriate with respect to those transactions. However, Jim pointed out that Mac and Beau had also alleged that he breached his fiduciary duties in other respects, which did not involve self-dealing—such as his duty to act as a prudent investor—and that Mac and Beau had the burden of establishing those breaches.” Id. The court held that the jury charge question was in error by improperly shifting the burden of proof to the trustee on non-self-dealing claims:
Question One, however, did not limit the jury to the self-dealing claim. Instead, as Jim points out, it instructed the jury that Jim had the burden to establish that “he complied with his duty in connection with his transactions as trustee,” without specifying what those transactions were. While Mac and Beau alleged Jim engaged in other “transactions” in violation of his fiduciary duties (such as taking a loan from their father to invest in the ranching operations and purchasing over a million dollars in ranch equipment, which arguably violated Jim’s duty to act as a prudent investor and to act in the beneficiaries’ best interest) those transactions did not involve self-dealing. It was Mac and Beau’s burden to establish that those transactions violated Jim’s fiduciary duties to them. Accordingly, we conclude that Question One improperly shifted the burden to Jim to establish the propriety of virtually every transaction in which he had engaged during his tenure as trustee.
Id. The court also held that this error was harmful and required a reversal of the judgment and a new trial:
Applying this harm standard to Question One, we reach a different result. Question One would have been proper had it applied only to Mac and Beau’s claim of self-dealing. And we might be persuaded that Jim was not harmed by the broad form nature of Question One if Mac and Beau’s focus at trial had been primarily on their claim of self-dealing and there had been substantial evidence to support that claim. But Mac and Beau neither focused on the self-dealing claim at trial, nor did they present substantial evidence to support that claim.
To the contrary, their expert witnesses focused almost exclusively on the claim that Jim did not act as a prudent investor when he continued to invest in the cattle business despite its failure to make a sufficient profit to make income distributions. Moreover, Mac and Beau’s expert witnesses expressly declined to opine on whether Jim had engaged in self-dealing by paying himself and his family excessive compensation. And Mac and Beau did not present any evidence to rebut Jim’s experts who testified that Jim’s compensation package was reasonable under the circumstances.
We can be reasonably certain that the jury’s finding in response to Question One regarding Jim violating his fiduciary duties was not based on Mac and Beau’s claim of self-dealing because the jury expressly found that Jim did not profit from any of his transactions (in Question Four). While a claim of self-dealing requires a finding that the trustee gained a benefit or profit from the transaction, when assessing “the damages, if any, that were proximately caused by the conduct inquired about in Question [One],” the jury expressly found that Jim did not make any profit “for his own benefit.” The jury’s only finding of damages was based on its finding that there was a “loss or depreciation in value of the [] White Trust estate.” As Mac and Beau argued at trial, this loss stemmed from Jim’s decision to continue investing money in the ranching operations, which they repeatedly characterized at trial as a violation of the prudent investor rule.
Because Question One improperly shifted the burden to Jim to establish that he complied with his fiduciary duties to act as a prudent investor, we conclude that this jury-charge error probably resulted in an improper verdict and Jim is therefore entitled to a new trial on Mac and Beau’s claims that he breached his fiduciary duties to them.
Id.
The court then addressed whether the trial court’s removal and modification relief should be reversed. The noted that “although a party is entitled to a jury trial on a tort claim for breach of fiduciary duty, there is no right to a jury trial on an equitable claim to remove a trustee or to modify a trust.” Id. The court of appeals held, however, that the parties submitted these equitable claims to the jury and that the relief should be reversed for the same reasons as described above:
But Mac and Beau did not request a separate bench trial on their equitable claims for Jim’s removal or for the modification of the White Trust. Instead, they requested and received a jury trial for all of their claims. And although the jury was not asked to resolve Mac and Beau’s equitable claims to remove Jim as trustee and to modify the White Trust, those claims were based on the same evidence and arguments they presented to the jury to support their tort claim, i.e., that Jim breached his fiduciary duties to them, and more particularly, his duty to generate income for their benefit. In its Final Judgment Nunc Pro Tunc, the court specifically stated that its judgment was based not only on the evidence admitted at the jury trial, but on “the jury’s verdict in this case” and the arguments of counsel. Accordingly, because we have already concluded that the jury’s verdict that Jim breached his fiduciary duties cannot stand, we similarly conclude that the trial court’s decision to grant Mac and Beau’s equitable claims—which was based on that verdict—cannot stand. We therefore conclude that Jim is entitled to a new trial on Mac and Beau’s equitable claims to remove him as trustee and modify the trust.
Id. The court concluded: “Because the jury charge error probably resulted in an improper verdict on the issue of whether Jim breached his fiduciary duties to Mac and Beau and the improper granting of equitable relief, we reverse the trial court’s final judgment and remand this matter to the trial court to hold a new trial on Mac and Beau’s legal claims as well as a new trial on their equitable claims.” Id.
NYC Limits Housing Discrimination Based on Criminal Background: Is ‘Criminal History’ History?
Takeaways
The NYC Fair Chance Housing Act prohibits discrimination against prospective and current housing occupants based on criminal history, with certain exceptions.
The prohibition covers most housing providers authorized to sell, rent, or lease housing accommodations.
Providers should consider reviewing their policies and procedures related to the process of requesting and reviewing criminal histories of prospective purchasers, renters, and lessees to ensure compliance with the Act.
Housing providers are required to comply with the New York City Fair Chance Housing Act, Local Law 24, which prohibits discrimination toward prospective and current housing occupants based on criminal history, if they choose to do a background check. Covered providers must ensure they are aware of the Act’s parameters.
Who Is Covered?
Compliance under the Act extends to owners, lessors, lessees, sublessees, assignees, co-op and condo boards, and agents, employees, and real estate brokers of housing agencies authorized to sell, rent, or lease housing accommodations (“Providers”). The Act also applies to prospective purchasers, renters, and lessees of housing accommodations.
Prohibited Considerations
Providers are prohibited from engaging in the following conduct based on criminal history:
Discriminating against any individual in the terms, conditions, or privileges of a sale, rental, or lease;
Refusing to sell, rent, lease, approve the sale, rental, or lease or to deny a housing accommodation;
Representing to any individual that any housing accommodation is not available for inspection, sale, rental, or lease;
Directly or indirectly excluding applicants with a criminal history in advertisements for the purchase, rental, or lease of such a housing accommodation; and
Conducting criminal background checks in connection with a housing accommodation, except as permitted below.
Permitted Considerations
Of course, the Act does not require Providers to completely ignore the potential for a legitimate adverse action based on criminal history. Providers may:
1. Consider “reviewable criminal history” including:
a. Convictions registered on the New York, federal, or other jurisdictional sex offense registries;
b. Misdemeanor convictions where fewer than three years have passed from the date of release from incarceration, or the date of sentencing for an individual who was not sentenced to a period of incarceration; and
c. Felony convictions where fewer than five years have passed from the date of release from incarceration, or the date of sentencing for an individual who was not sentenced to a period of incarceration.
2. Take any lawful action against an individual for acts of physical violence against other residents or other acts that would adversely affect the health, safety, or welfare of other residents; and
3. Make statements, deny housing accommodations, or conduct criminal background checks where required or specifically authorized by applicable laws.
Criminal History Review Process
Providers must give prospective and continuing occupants notice of their intent to conduct criminal background checks, along with a written copy of the city’s Fair Chance Housing Notice.
Providers may conduct criminal background checks only after:
A seller has accepted an offer; or
The Provider has provided the prospective occupant(s) a rental or lease agreement.
Providers may revoke an offer based on a “material” omission, or misrepresentation, or change in qualifications for tenancy that was unknown at the time of the conditional offer.
After providing notice of intent to conduct a criminal background check, but before taking an adverse action based on the results, Providers must provide the individual:
Written copies of any information or records about reviewable criminal history they intend to rely on for the adverse action;
Written copies of any information about the individual’s criminal history received, other than their reviewable criminal history, even if it was not considered; and
Notice that the individual has five business days to identify errors in the criminal history information and submit supplemental information in support of their application.
Additionally, prior to taking any adverse action based on reviewable criminal history, Providers must conduct an individualized assessment of the individual’s reviewable criminal history and any timely information submitted by the individual. This assessment must be memorialized in writing, with the reason for the adverse action, including:
1. A copy of supporting documents that were reviewed; and
2. A written statement of the reason for the adverse action, demonstrating:
a. How the individual’s reviewable criminal history is relevant to a legitimate business interest of the property owner; and
b. How any information submitted in support of such individual’s tenancy was considered by them.
Potential Liability
Providers can be liable for civil penalties for relying on information other than reviewable criminal history. Further, Providers can be liable for third party violations if third parties are used to conduct consumer background check or criminal background checks on their behalf.
Next Steps for Providers
New York City Providers should consider reviewing their policies and procedures related to the process of requesting and reviewing criminal histories of prospective purchasers, renters, and lessees to ensure compliance with the Act. In addition, if Providers are using consumer reporting agencies to run the criminal background checks, they must ensure compliance with the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681, et seq., and any applicable state mini-FCRA laws related to obtaining consent.
Trump Signs Executive Order Directing the DOL and SEC to Facilitate 401(k) Plan Access to Alternative Assets
On August 7, 2025, President Trump signed an executive order entitled “Democratizing Access to Alternative Assets for 401(k) Investors” (the “Executive Order”), which directs the Department of Labor (the “DOL”) and the Securities Exchange Commission (the “SEC”) to relieve regulatory burdens and litigation risk that impede investments in alternative assets (including crypto, private equity, private credit and real estate) by 401(k) and other defined contribution plan (collectively, “DC Plans”) participants. The Executive Order states that more than 90 million Americans participate in employer-sponsored DC Plans, but most of those are currently restricted from investing in alternative assets, unlike “wealthy investors” and participants in public retirement plans.
The $12.5 trillion of assets held in DC Plans has long been a target for alternative asset managers. Likewise, many DC Plan participants and sponsors have advocated for better access to such investments to enhance growth and diversification opportunities. On the other hand, detractors cite higher costs, increased complexity and lack of transparency and liquidity as reasons to restrict access to alternative assets. Although such investments are not (and have never been) per se prohibited for DC Plans under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), concerns about litigation risk (class actions alleging that it was imprudent to offer alternative investments) for plan fiduciaries, as well as securities law and other regulatory hurdles, have effectively kept such investments from becoming mainstream in DC Plan investment option lineups.
Background
On June 3, 2020, during the first Trump administration, the DOL published an Information Letter confirming that investment options under a DC Plan may include a limited allocation to private equity (the “2020 Letter”, discussed here). Notably, the 2020 Letter did not discuss direct investment in private equity funds (for example, by adding a private equity fund to the plan’s investment lineup). Rather, the 2020 Letter discussed including private equity as a small allocation (no more than 15%) within a diversified investment option such as a balanced fund or a target date fund.
Although the 2020 Letter led to some optimism for proponents of alternative assets in DC Plans, a subsequent Supplemental Statement (issued on December 21, 2021, during the Biden administration and discussed here) urged more caution. The Supplemental Statement emphasized that the DOL “did not endorse or recommend” offering designated investment alternatives with private equity components in the 2020 Letter, and that it wanted “to ensure that plan fiduciaries do not expose plan participants and beneficiaries to unwarranted risks by misreading” the 2020 Letter as saying that these investments are “generally appropriate for a typical 401(k) plan.”
Importantly, the 2020 Letter did not provide any kind of safe harbor for including alternative assets in 401(k) plan investment options, and the Supplement Statement did not prohibit such investments. The guidance simply provided that limited private equity allocations within a DC Plan investment option are permitted, but that rigorous analysis is critical when evaluating the prudence of such investments given their complexity.
The Executive Order
The Executive Order directs the DOL, within 180 days, to reexamine its guidance regarding an ERISA fiduciary’s duties in connection with making available to DC Plan participants an asset allocation fund that includes investments in alternative assets (including consideration of recission of the Supplemental Statement). For this purpose, “alternative assets” include not only private equity, private credit, real estate, and other asset classes that are not publicly traded, but also commodities and digital assets.[1]
The Executive Order also directs the DOL within such 180-day period, as it deems appropriate and consistent with applicable law, to seek to clarify its position and propose guidance on alternative assets and the appropriate fiduciary process associated with offering asset allocation funds containing investments in alternative assets. The Executive Order says the guidance may include appropriately calibrated safe harbors and directs the DOL to prioritize actions that may curb ERISA litigation that constrains fiduciaries’ ability to apply their best judgment in allowing alternative investments for DC Plan participants.
The DOL is further directed to consult with the Secretary of the Treasury, the SEC, and other Federal regulators as necessary. Similarly, the SEC is directed to consider ways to facilitate access to alternative investments, including potential revisions to existing rules relating to accredited investor and qualified purchaser status, which are currently hurdles to direct investments in alternative assets by most DC Plan participants.
Key Takeaways
While the 2020 Letter focused only on permitting investments in diversified investment options that included a small allocation to private equity, the Executive Order picks up a much broader range of assets, including cryptocurrency and other digital assets (furthering the DOL’s recent rescission of its 2022 guidance that cautioned against investment in cryptocurrencies, discussed here) and does not suggest a cap on a fund’s allocation to alternative assets.
The Executive Order does not by itself change any existing rules or guidance. Rather it is a directive for agencies to revisit their guidance and to issue new guidance as they determine to be appropriate to achieve the policies described in the Executive Order. It remains to be seen whether the DOL, SEC or other Federal regulators will issue new guidance and what such guidance will say. While the Executive Order strikes an encouraging tone, its ultimate impact is yet to be seen. However, those wishing to allow these offerings have reason for optimism that they could become more common if, for example, the Federal regulators institute some type of safe harbor – a possibility suggested by the Executive Order.
We are monitoring developments and will update as warranted.
[1] For purposes of the Executive Order, the term “alternative assets” means: (i) private market investments, including direct and indirect interests in equity, debt, or other financial instruments that are not traded on public exchanges, including those where the managers of such investments, if applicable, seek to take an active role in the management of such companies; (ii) direct and indirect interests in real estate, including debt instruments secured by direct or indirect interests in real estate; (iii) holdings in actively managed investment vehicles that are investing in digital assets; (iv) direct and indirect investments in commodities; (v) direct and indirect interests in projects financing infrastructure development; and (vi) lifetime income investment strategies including longevity risk-sharing pools.
Congress Passes Homebuyer Lead Reform Bill, Limiting Mortgage Lead Sharing Under FCRA
On August 2, the U.S. Senate passed the Homebuyers Privacy Protection Act (H.R. 2808) by unanimous consent, which amends the Fair Credit Reporting Act (FCRA) to restrict consumer reporting agencies from sharing “trigger leads” generated in connection with residential mortgage credit inquiries. The bill now awaits the President’s signature and would take effect 180 days after enactment.
Trigger leads are generated when a consumer applies for residential mortgage credit, prompting credit bureaus to share limited prescreened data with other lenders. While originally intended to encourage competition through firm offers of credit, trigger leads have drawn criticism from lawmakers and consumer advocates for enabling a surge of unsolicited calls, texts, and emails following mortgage applications. The bill curbs this practice by sharply limiting who can access trigger leads and under what conditions.
Specifically, the bill’s provisions include:
Restrictions on trigger leads. A consumer reporting agency may furnish a mortgage-related trigger lead only if the recipient: (1) has obtained the consumer’s documented authorization to access their report; (2) originated the consumer’s current residential mortgage loan; (3) services the consumer’s current residential mortgage loan; or (4) is a depository institution or credit union that holds a current account for the consumer.
Preservation of firm-offer standard. Every trigger-lead recipient must continue to make a firm offer of credit, consistent with the existing FCRA safeguard against purely speculative solicitations.
GAO study of text-message marketing. The Comptroller General must report to Congress within a year on the effectiveness and consumer impact of trigger-lead solicitations delivered by text.
Putting It Into Practice: If signed, the Act will start a 180-day countdown to compliance—meaning credit bureaus, mortgage lenders, and lead generators should review their prescreening practices and revise data-sharing protocols to align with the new statutory restrictions. Financial institutions should also prepare to document authorization flows, limit data access to only eligible entities, and maintain firm offer compliance under FCRA.
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Knowing the Difference Between Money Judgment Actions and Foreclosures
Condominium Associations and Homeowner Associations are often faced with delinquencies that negatively impact their financial stability. Determining the best method of collection is crucial to recovering fees due to the Association. Associations may collect assessments, late fees, interest, fines, attorneys’ fees and costs or other charges permitted by the governing documents, by proceeding with a money judgment action, a foreclosure action, or both. Association Boards and managers should know the difference between money judgments and foreclosures, and how arrears are recovered in each action.
Money Judgment
A money judgment action is a lawsuit against the unit owner to obtain a personal monetary judgment. A money judgment action is filed to collect assessments, late fees, interest, fines, attorneys’ fees and costs or other charges assessed by the Association. Once a judgment is entered against the unit owner, it accrues interest and remains in place for 20 years. Associations can collect on the judgment in various ways, such as by garnishing wages, levying bank accounts, or levying rental income. Associations also have the option of obtaining a rent receivership order to collect on the judgment. If an Association cannot collect on the judgment after exhausting efforts to execute on personal property, the Association may motion the court to request a writ to sell the unit to satisfy the judgment.
Foreclosure
Another method of collection available to Associations is a foreclosure action. This action forecloses liens the Association has recorded against a unit. This process typically takes over a year. The unit is ultimately sold at a sheriff’s sale. The purchaser at the sheriff’s sale takes the unit subject to the mortgage and other encumbrances. The Association is then paid the amount it was awarded in the foreclosure action plus interest. If no one bids on the unit at the sheriff’s sale, the unit goes to the Association. An Association may rent out the unit to attempt to satisfy the amounts owed.
Texas Tightens Real Property Ownership Rules for Foreign Nationals with SB 17
Key Takeaways
Texas passed SB 17, which prohibits certain foreign nationals, including foreign governments, foreign-owned businesses and individuals from certain countries from purchasing or acquiring real property in Texas.
As of the Bill’s passage, the Designated Countries include China, Iran, North Korea and Russia1. However, the Bill gives the Governor the power to expand the list to include other countries.
Governor Greg Abbott signed the Bill on June 20, 2025, and the Bill is set to become effective on September 1, 2025.
If a company or entity is found to be in violation, they will be held liable to the state for the greater of $250,000 or 50% of the market value of the interest in the property in violation.
With a focus on national security and preserving the state’s land and critical natural resources from certain foreign nations that have been identified as threats to the United States,2 the Texas Senate introduced Bill C.S.S.B. 17, known as SB 17 or the Bill, in February 2025. The purpose of the Bill is to prohibit the purchase or acquisition of real property by certain governmental entities, companies and individuals who have ties with certain countries that have been identified by the United States as a country that poses a risk to our national security (Designated Country/Countries).3 As of the Bill’s passage, the Designated Countries identified are China, Iran, North Korea and Russia4 and gives the Governor the power to expand the list to include other countries. Governor Greg Abbott signed the Bill on June 20, 2025, and the Bill is set to become effective on September 1, 2025.
Summary of SB 17
SB 17 makes significant changes to the state Property Code Subchapter H concerning the purchase or acquisition of real property by companies, governments or individuals domiciled in a country that has been identified as a Designated Country. The Bill applies to a broad range of real estate interests – including agricultural, commercial, industrial and residential property – and prohibits ownership by foreign entities or individuals linked to Designated Countries, as determined by federal intelligence assessments or the Governor in consultation with public safety and homeland security officials. While United States citizens and lawful residents are exempt, along with the companies they own or control, limited exceptions also apply to short-term leasehold interests. The Texas Attorney General (Texas AG) is authorized to investigate suspected violations, initiate legal actions and enforce significant civil penalties, creating a new framework of oversight and enforcement for foreign ownership in Texas real estate.
Analysis
Who is Prohibited from Owning Real Property in Texas?
Under SB 17, the entities and individuals that are prevented from purchasing or acquiring an interest in real property in Texas are any one of the following:5
A governmental entity of a Designated Country;
A company or organization that is:
Headquartered in a Designated Country;
Directly or indirectly held or controlled by the government of a Designated Country;
Owned, or the majority of stock or other ownership interest of which is held or controlled, by individuals in Subdivision (4); or
Designated by the Governor under Section 5.254.
An individual who:
Is domiciled in or is citizen of a Designated Country, except that an individual who is lawfully present and residing in the United States at the time the individual purchases or acquires the interest may purchase or acquire an interest in a residential property that is intended for use as an individual’s residence homestead, as defined by Section 11.13(j), Tax Code;
Is a citizen of a Designated Country who is domiciled outside of the United States in a country:
Other than a Designated Country; and
For which the individual has not completed the naturalization process for becoming a citizen of that country;
Is a citizen of a Designated Country who is unlawfully present in the United States;
Is:
A citizen of a country other than the United States; and
Acting as an agent or on behalf of a Designated Country; or
Is a member of the ruling political party or any subdivision of the ruling political party in a Designated Country.
How Are Designated Countries Identified?
There are two ways for a country to earn this designation under the Bill.6 A country primarily earns this designation if they have been identified by the United States Director of National Intelligence as a country that poses a risk to the national security of the United States. The country must be identified as a threat in at least one of the three most recent Annual Threat Assessments of the United States Intelligence Community.7
Second, in accordance with Section 5.254, the Governor also has the power to designate countries or entities as subject to the property prohibitions. The Governor must consult with the public safety director of the Department of Public Safety for purposes of determining whether an individual or entity poses a risk to the security of the public. In order to make or remove a designation under Section 5.254, the Governor must also consult with the Homeland Security Council. “Transactional Criminal Organizations” may also be added to the list of prohibited purchasers.
What Kind of Property is Prohibited?
According to the Bill, “Real Property” is defined to include agricultural land, an improvement located on agricultural land, commercial property, industrial property, groundwater, residential property, a mine or quarry, a mineral in place, standing timber or water rights. With a particular focus on agricultural land, the Bill defines such as land located in Texas that is suitable for the production of plants and fruits for consumption, fiber production and for keeping farm or ranch animals for use or profit.8
What Exceptions for the Bill Exist?9
Section 5.252 of the Bill contains a list of exceptions. The prohibitions listed in the Bill do not apply to United States citizens and lawful residents. Companies and organizations that are owned or controlled by United States citizens are also exempt from the prohibitions. Additionally, leasehold interests in land or improvements constructed on a leasehold are exempt from any prohibition under the Bill so long as the duration of the interest is less than one year. Finally, there is a special exception for a residence homestead owned by those who seek a home in the state who have fled these Designated Countries.
Enforcement and Penalties
The Texas AG is tasked with establishing procedures to determine whether any purchase of an interest in real property violates Subchapter H and warrants an investigation. If the Texas AG determines that such a transaction warrants an investigation, one will be undertaken to determine whether a violation has occurred. If the Texas AG determines that there has been a violation of the law, he may bring an in-rem action against the real property at question to enforce Subchapter H. Additionally, the Texas AG may refer the matter to the appropriate local, state or federal law enforcement agency for further action.
If a court determines that a company or entity has violated this subchapter, the company or entity will be liable to the state for the greater of $250,000 or 50% of the market value of the interest in real property that is the subject of the violation.10
Federal Action Relating to Foreign Ownership of United States Land11
In July of 2025, the U.S. Department of Agriculture (USDA) set forth a plan similar to Texas SB 17. The “National Farm Security Action Plan” (Action Plan) is aimed at protecting American agricultural land and contains restrictions on foreign nations from purchasing United States agricultural land. The Action Plan is built on concerns for national security. There will be efforts by the federal government, working with the individual states, to pass more laws concerning the purchase of land near United States military bases. With the Action Plan still in its preliminary stages, more developments are certainly to arise.
Potential Impacts and Associated Risks of SB 17
Impact on Real Estate Market: The restrictions are intended to and will have a deterrent effect on foreign investment from Designated Countries in Texas real estate, but will likely function as a broader deterrent on foreign investment from non-Designated Countries as well, potentially affecting property values and market dynamics. This is likely to lead to a reduced demand from foreign buyers, impacting sellers and developers who rely on international investors. However, these outcomes are justified by the State of Texas based upon national security concerns.
Economic and Diplomatic Relations: The Bill could strain Texas’s economic and diplomatic relations with the affected countries, particularly if perceived as discriminatory or protectionist.
Legal, Enforcement and Compliance Challenges: Entities and individuals may face increased compliance costs to ensure adherence to the new regulations. The effectiveness of enforcement will depend on the resources and capabilities of the Attorney General’s office and local law enforcement. There may be challenges in identifying and proving violations, especially with complex corporate structures.
Conclusion
In conclusion, SB 17 serves as a critical legislative measure aimed at safeguarding the state’s land and resources from potential foreign threats. The Bill specifically prohibits certain foreign entities and individuals from purchasing real property within Texas, thereby ensuring that state assets remain under domestic control. The entities affected by this legislation include foreign governments, foreign-owned businesses and individuals from countries identified as posing a risk to national security. The types of property involved encompass both agricultural and non-agricultural lands, reflecting a comprehensive approach to protecting various forms of real estate.
[1] https://www.texastribune.org/2025/05/08/texas-foreign-land-purchase-senate-bill-17/#:~:text=Members%20granted%20the%20governor%20such,Iran%2C%20North%20Korea%20and%20Russia.
[2] SB 17, Sec. 1(a).
[3] SB 17, Sec. 5.251(3) “Designated Country” refers to (A) a country identified by the United States Director of National Intelligence as a country that poses a risk to the national security of the United States in at least one of the three most recent Annual Threat Assessments of the U.S. Intelligence Community issued pursuant to Section 108B, National Security Act of 1947 (50 U.S.C. Section 3043b); or (B) a country designed by the Governor under Section 5.254.
[4] https://www.texastribune.org/2025/05/08/texas-foreign-land-purchase-senate-bill-17/#:~:text=Members%20granted%20the%20governor%20such,Iran%2C%20North%20Korea%20and%20Russia.
[5] SB 17, Sec. 5.253.
[6] SB 17, Sec. 5.254.
[7] The Annual Threat Assessment is issued pursuant to Section 108B of the National Security Act of 1947 (50 U.S.C. Section 3043b).
[8] SB 17, Sec. 5.251(1).
[9] SB 17, Sec. 5.252.
[10] SB 17, Sec. 5.259(b)(1), (2).
[11] https://www.tradecomplianceresourcehub.com/2025/07/09/u-s-moves-to-ban-foreign-adversary-purchases-or-control-of-farmland-and-launches-national-farm-security-action-plan/
Can a Property Owner Be Held Liable for Accidents Caused by Unsafe Conditions?
Many people visit buildings, stores, or homes every day without thinking about safety. But sometimes, simple issues—like loose steps, wet floors, or bad lighting—can lead to serious harm. When these problems are not fixed in time, someone might get hurt. In those cases, the person in charge of the place may be held responsible. But […]
SJC Confines Zoning Standing Analysis To Actual Proposed Use; Speculation As To Future Uses Is Irrelevant
Last week, the Massachusetts Supreme Judicial Court (SJC) reversed an Appeals Court panel in a strongly-worded decision concerning abutter standing to appeal a zoning decision, Stone v. Zoning Bd. of Appeals of Northborough (pdf).
The plaintiff abutters appealed a use variance that the Town of Northborough Zoning Board of Appeals granted to Cable Matters Inc. (Cable Matters) to build a warehouse on property in an industrial zoning district that’s also in a groundwater protection overlay district. The Superior Court dismissed the plaintiffs’ appeal for lack of standing but the Appeals Court panel reversed, reasoning that the Superior Court judge should have considered impacts from “’the uses to which an ordinary 20,000 square foot warehouse’ might be put in the future.”
The SJC skewered the panel, noting that it “rested its decision on a ground unsupported by the summary judgment record that the plaintiffs had not advanced and neither side had addressed: namely, that Cable Matters’s proposed use of the warehouse was ‘unusually light,’ and, therefore, the Superior Court should have also considered ‘the uses to which an ordinary 20,000 square foot warehouse’ might be put in the future.”
The plaintiffs had not offered any credible evidence at summary judgment that the warehouse would cause them material harm. While they alleged classic abutter impacts like “headlight glare,” beeping from reversing trucks, and exhaust fumes, the plaintiffs admitted they were already impacted by nearby trucking and distribution businesses and warehouses operated by “a regional trucking company, FedEx, […] Amazon, a T-shirt business, a wholesale distributor of snowplows, and a medical supply company.” Still, the Appeals Court panel was inclined to give them another bite at the apple, sending the case back to the Superior Court to consider potential impacts from hypothetical future uses of the warehouse. But the SJC stepped in, granting further appellate review.
First, the SJC admonished the Appeals Court panel for considering future uses to which the warehouse might be put, because not only had the plaintiffs alleged no facts concerning future uses, they didn’t even argue “either to the board, the Superior Court, or the Appeals Court” that their standing was based on supposed future uses. The SJC reminded the panel that, on appeals from summary judgment, its review is confined to the evidence before the trial court.
Second, the SJC was puzzled by the panel’s reliance on Allegaert v. Harbor View Hotel Owner LLC, 100 Mass. App. Ct. 483 (2021), which did not involve standing under M.G.L. c. 40A, § 17. Rather, it involved issues of defective notice and claim preclusion in the context of a zoning enforcement action. In the claim preclusion analysis, Allegaert (whose panel included two of the same judges as in Stone) considered whether an existing special permit allowing food and beverages to be served on a hotel pool deck included service at the bar as well. This change in use was central to whether the claim was precluded. The SJC observed that in an enforcement case, “the evolving use of a property will be relevant in determining whether the use remains within the provisions of the zoning regulations,” but noted, “Allegaert does not stand for the proposition that potential future uses that are different in nature or degree from the actual use proposed by a property owner must be considered to determine whether a plaintiff has standing to challenge the initial issuance of a special permit or variance.”
In Stone, the issue was simply a threshold question of the plaintiffs’ standing. Because the only issue was whether the plaintiffs proved they were aggrieved by the grant of a variance for Cable Matters’ warehouse “as proposed to, and approved by, the zoning board,” the SJC affirmed the Superior Court’s dismissal of the plaintiffs’ appeal for lack of standing.
One wonders how the Appeals Court panel was led so astray in this case. It’s disheartening that an unmeritorious appeal filed in September 2020, over which the Superior Court never had jurisdiction, managed to delay a permitted use for almost five years. Hopefully Stone will give the Appeals Court and our trial courts more motivation to dismiss such cases for lack of standing early, before the parties spend years and thousands of dollars on fruitless litigation.
Florida’s CHOICE Act Enacted: Helping Employers Read Between the Lines of the New Non-Compete Law
Takeaways
Florida’s CHOICE Act diverges sharply from national trends, expanding rather than restricting employers’ power to safeguard their business interests.
The new law makes preliminary injunctions a default remedy, burdening employees to prove why an injunction should be dissolved.
Questions remain as to how federal courts will apply the Act.
Florida’s CHOICE Act, short for “Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth” (CHOICE), is now law. For details of the Act, see Florida’s CHOICE Act Offers Employers Unprecedented Tools for Non-Compete + Garden Leave Agreements.
But the law did not have the direct endorsement of Florida’s pro-business governor. Departing from his usual approach, the governor took no action on the bill, neither signing nor vetoing it, and instead allowing the bill to become law by default on July 3, 2025. Oddly, the Act’s stated July 1 effective date precedes its actual enactment on July 3. In any event, the CHOICE Act positions Florida as the most employer-friendly state in the nation for restrictive covenants and diverges from a national trend by other states to limit the enforcement of non-compete agreements. As the law is newly enacted, judicial interpretation remains uncertain, and courts likely will play a pivotal role in shaping how the CHOICE Act is applied.
A Law Without a Signature — What Does It Mean?
The governor’s inaction on the Act is notable, standing in contrast with his typically assertive legislative style. Although the bill passed with strong support from business interests, it faced vocal opposition from labor advocates and legal scholars. By choosing not to sign or veto the bill, the governor may have been trying to avoid alienating either side.
The governor also may be signaling a cautious stance toward future restrictive covenant legislation. The Act addresses non-compete and garden leave agreements, but it does not apply to other restrictive covenants such as non-solicitation provisions. As a result, a covered agreement could impose a four-year restriction on competition, while only prohibiting customer solicitation for a significantly shorter period — creating potential enforcement inconsistency. The Florida legislature may seek to resolve this inconsistency by extending the permissible duration of other restrictive covenants. However, the governor’s passive approach to the Act could indicate potential resistance to further legislative expansion in this area.
Whose CHOICE Is It, Really?
Despite its name, the CHOICE Act offers little in the way of actual choice for employees. Covered employees — those earning more than twice the mean wage in their county — may now be subject to non-compete and garden leave agreements lasting up to four years. These agreements are presumed enforceable and not contrary to public policy.
While the national trend has skewed toward restricting or banning non-compete agreements — and while the Federal Trade Commission recently made a high-profile (though ultimately unsuccessful) attempt to ban non-compete enforcement nationwide — Florida is doubling down on non-competition agreements. The Act significantly expands the enforceability of restrictive covenants, positioning Florida as a national outlier.
The acronym “CHOICE” appears to serve more as an advertisement of Florida’s pro-business policies rather than a reflection of employee empowerment. It seems likely aimed at attracting out-of-state employers to “choose” to relocate to the Sunshine State. As state senator Tom Leek, the bill’s sponsor, stated: “Florida is poised to become one of the finance capitals of the world … you have to provide those businesses protection on the investment that they’re making and their employees.”
Will the Act Hold Up in Federal Court?
Federal courts remain divided on whether to apply the presumption of irreparable harm outlined in section 542.335(1)(j), Florida’s general restrictive covenant statute. Several courts have declined to apply these presumptions, finding them inconsistent with federal equitable principles governing injunctive relief. This divergence raises important questions about the CHOICE Act’s enforceability in federal forums.
The CHOICE Act goes even further than section 542.335, effectively making injunctions a default remedy and placing the burden on employees to prove — by clear and convincing evidence — why an injunction should be dissolved. This enhanced enforcement mechanism may face scrutiny in federal court, where equitable relief is traditionally governed by federal, not state, standards.
As a result, employers seeking to take full advantage of the CHOICE Act’s procedural mechanisms may prefer to file enforcement lawsuits in Florida state courts, where the Act’s automatic injunction provisions are more likely to be upheld. Conversely, defendants may attempt to remove CHOICE Act cases to federal court, where the Act’s provisions may face greater scrutiny. In any event, employers will need to carefully evaluate jurisdictional considerations — including diversity and federal question grounds — when initiating litigation to better avail themselves to the Act’s protections.
Next Steps for Employers
Review existing agreements to determine whether they are covered under the CHOICE Act.
Revise non-compete agreements to ensure compliance with the Act’s requirements.
Monitor litigation for early interpretations of the Act’s enforcement mechanisms.
Preparing for Allston Christmas: What Massachusetts’ New “Junk Fee” Regulations Mean for Landlords
Introduction
Every year, thousands of students move apartments in Boston on September 1, a day colloquially known as “Allston Christmas” for the treasures that can be found amongst items left behind at the curb in one of Boston’s student-heavy neighborhoods. As Massachusetts landlords prepare for these and other new tenancies, they should be aware of new requirements concerning fee disclosures effective September 2, 2025.
“Junk fees” have become a growing focus of regulatory scrutiny at both the federal and state level. These are fees and costs that are not initially disclosed to a consumer at the start of a transaction, before the consumer has shared personal information. They can also include auto-renewing subscriptions, hard-to-cancel trial offers, or recurring charges that are not clearly explained.
Regulators worry that these later-added fees obscure the true cost or nature of a product or service, particularly when there is no readily apparent way to opt out of them, and therefore reduce transparency and interfere with informed decision-making. The Federal Trade Commission (FTC) and other regulators have deemed “junk fees” unfair and deceptive to consumers, and imposed rules focused on ensuring that consumers are better informed about fees associated with certain purchases.
The FTC’s current rulemaking has focused narrowly on sectors like event ticketing and short-term lodging, but the broader policy trend is clear. In recent years, regulatory agencies have begun targeting hidden or unclear charges across industries. Total price transparency that promotes upfront, clear, and obvious pricing is becoming a new baseline for compliance.
Massachusetts is one of the first states to apply this standard to the longer-term housing market. While FTC regulations do not currently apply to such housing rentals, Massachusetts has enacted its own regulations under Chapter 93A, the consumer protection statute, that bring residential landlords into the fold. These changes are part of a larger effort to impose more rigorous pricing and disclosure standards on the landlord-tenant relationship, aimed at increasing transparency, reducing consumer confusion, and eliminating perceived deceptive pricing practices in the rental market.[1]
For landlords and property managers, this shift has immediate implications. The new Massachusetts regulations apply not just to how rental units are advertised, but also to how lease terms, recurring charges, and current and prospective resident communications are handled. With the new regulations set to take effect on September 2, 2025, now is the time for Massachusetts landlords to audit current practices and prepare for compliance.
Massachusetts’ New Chapter 93A Junk Fee Regulations
Effective September 2, 2025, all businesses, including landlords, must disclose the total price of a product or service at the first point of contact, and before collecting any personal information from a consumer.
For landlords, this means that any fees related to renting an apartment unit must be clearly disclosed upfront and explained in plain language. This includes amenity fees, late fees, pet fees, parking fees, and any mandatory or optional fees. Although optional fees need not be included in the total price disclosure, they must be identified and accompanied by clear instructions on how to avoid them.
The law requires full disclosure and also mandates how the disclosure must be presented to consumers. These new rules apply to all advertising and communication mediums, including online listings, printed materials, lease applications, lease agreements, and even verbal representations. The Attorney General’s Office has also issued guidance on how these regulations apply.
What This Means for Massachusetts Landlords
For landlords, these changes represent both a compliance challenge and an opportunity to build trust with prospective residents. “Junk fees” in the housing context could include any fee not folded into the base price of a unit. Inflating a base rent with initially undisclosed add-ons, like parking or amenity fees, could now be considered a deceptive practice under state law.
Going forward, before collecting any personal information from a prospective resident (or in a lease renewal for a current resident), a Massachusetts landlord must clearly and conspicuously:
State the total monthly price for an apartment, including any mandatory fees or fees that “reasonable consumers would expect to be part of the purchase,” in the first display of any pricing.
Break out each mandatory and optional fee in writing.
Display the total price more prominently than any breakdown or alternative pricing.
Ensure any advertised discounts are compliant with the regulatory guidance (e.g., “one free month with a 14-month lease”).
Provide clear and simple cancellation instructions for any automatic lease renewal and for any recurring optional fees like parking, amenity, or pet fees.
Label all charges using simple and accessible language and avoid contradictions.
Despite this guidance, ambiguities in the application of these regulations to the residential rental market and leases abound, including:
How should landlords handle disclosure of pricing for variable services, such as utilities? The AG’s guidance states that for landlords who submeter water/sewer, compliance with other applicable laws governing submetered water/sewer utilities is sufficient. But the guidance does not address other variable fees that may arise in the residential rental context.
What fees are considered optional by a landlord but may be considered necessary by a renter in order to make the apartment rental serve its intended purpose?
What mechanisms satisfy the law’s requirement for an accessible “opt-out” for lease renewals?
How can landlords comply with the clear and conspicuous advertising requirement, especially if advertising multiple units with different price points at once?
For “negative options” such as canceling a lease or amenity renewal, what counts as a “simple mechanism” for opting out?
How Landlords Can Comply
As the new regulations go into effect, landlords can expect some “trial and error” in applying the regulations to the practicalities of the residential rental process. However, landlords should make an effort to comply with the new regulations, to the greatest extent possible, by the time they go into effect. Noncompliance can expose a landlord to an enforcement action by the Massachusetts Attorney General or a lawsuit under Chapter 93A, including a potential class action lawsuit. Defending against either can be time-consuming and costly.
To facilitate compliance, landlords should:
Audit existing fees: Are they optional? Are they disclosed? Do they serve a specific, identifiable purpose?
Update advertising and lease materials: Ensure compliance with the “clear and conspicuous” requirement. Ensure that lease materials list the total cost on the first page, in larger font than any price breakdown. The AG’s recent guidance provides examples of compliance disclosures.
Revisit pricing strategies: Don’t list low rent numbers that exclude unavoidable charges or don’t reflect the total monthly cost.
Implement opt-out mechanisms: Particularly for optional amenities or leases that automatically renew.
Work with legal counsel: A compliance audit from a qualified attorney can flag potential risks before they lead to penalties. Ongoing consultation with counsel can also help landlords stay informed on developments in the interpretation and application of the regulations.
Conclusion
Massachusetts has positioned itself at the forefront of consumer protection in the housing space. By expanding the definition of “junk fees” to include those in rental transactions, the Commonwealth has made it clear that pricing transparency is essential.
For landlords, this means rethinking how they advertise, price, and manage resident relationships. In order to best be positioned for these shifting regulations, landlords should seek legal advice from a qualified Massachusetts attorney.
[1] For example, the Commonwealth recently eliminated renter-paid broker fees, so that a landlord cannot require a renter to pay a broker’s fee. See https://www.mass.gov/news/governor-healey-commits-to-signing-budget-provision-banning-renter-paid-brokers-fees. Several bills are also currently pending before the Massachusetts Legislature that would ban or cap other types of fees in rental housing. See, e.g., Bill H.1553: An act to regulate junk fees in rental housing.
U.S. Sanctions Brazilian Supreme Court Justice, Places 50% Tariff on Brazilian Imports
U.S.-Brazil economic and legal relations face increased scrutiny amid new designation of Justice Alexandre de Moraes and broad trade actions
On July 30, 2025, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated Brazilian Supreme Court Justice Alexandre de Moraes as a Specially Designated National (SDN) under the Global Magnitsky Human Rights Accountability Act. The SDN designation blocks any property, or interests in property, subject to U.S. jurisdiction and prohibits U.S. persons from engaging in transactions with him. It also extends to entities in which Justice de Moraes holds a 50% or greater ownership interest and prevents U.S. financial institutions and U.S.-branded payment networks operating in Brazil from processing transactions for his benefit.
The action was based on allegations related to human rights and political persecution concerns in judicial proceedings. This marks the first time the Magnitsky Act has been used to impose sanctions on a Brazilian citizen and public authority.
Additionally, on July 30, 2025, and under International Emergency Economic Powers Act (IEEPA) authority, the White House issued an executive order imposing an additional 40% ad valorem duty on most Brazilian imports. The new 40% duty applies on top of the existing 10% IEEPA reciprocal tariff established by Executive Order 14257 (April 2, 2025), bringing the total duty rate to 50%. The new rate takes effect on August 6, 2025, at 12:01 a.m. ET.
While the executive order provides more than 700 product-specific exemptions for key industries — such as aerospace, automotive, energy and certain agricultural goods — major exports, including coffee, beef, fruits, textiles, footwear and furniture, will be subject to the full 50% tariff. However, the 40% duty does not apply to Brazil-origin goods that are subject to existing or future Section 232 actions (e.g., steel, aluminum, copper).
The executive order also has an in-transit exemption for Brazil-origin goods that were loaded onto a vessel at the port of loading and in transit on the final mode of transit prior to entry into the U.S., before 12:01 a.m. ET on August 6, 2025; and are entered for consumption or withdrawn from warehouse for consumption before 12:01 a.m. ET on October 5, 2025.
As the U.S. remains Brazil’s second-largest export market, these changes are expected to impact a broad range of supply chains and commercial relationships. For example, these sanctions and trade restrictions signal a more assertive U.S. posture toward Brazil at both the legal and commercial levels. Given the scope of these actions and the existing volume of cross-border activity, companies should be prepared for increased scrutiny of transactions, supply chains and communications with Brazilian counterparties.
Court Affirmed An Order Removing A Trustee
In Richey v. Brouse, the settlor created a special needs trust for her son, who had a mental disability and a seizure disorder that required day-to-day care. No. 03-23-00544-CV, 2024 Tex. App. LEXIS 8842 (Tex. App.—Austin December 20, 2024, no pet.). When the settlor died, Richey took over as trustee, and the trust agreement named Brouse as first successor trustee should Richey be “unable or unwilling” to serve as trustee. Brouse became aware that Richey was using trust funds for payment to Richey’s divorce attorney, donations to a YouTube preacher, travel expenses, rent, and a personal vehicle for herself. In addition, Brouse alleged that Richey removed Kirk from his longtime home in St. Louis, Missouri, and moved him to New Mexico, where Richey did not live permanently but visited frequently. Brouse filed suit against Richey, alleging breach of fiduciary duty and sought removal, damages, and attorney’s fees. Brouse moved for partial summary judgment on his breach-of-fiduciary-duty claim and sought removal of Richey as trustee under Section 113.082(a) of the Property Code. Richey was proceeding pro se and she did not file a response. The probate court entered an order granting Brouse’s motion for partial summary judgment, removing Richey as trustee based on her breaches of fiduciary duty. Richey appealed.
The court of appeals first held that Brouse had standing to file suit:
Richey argues that Brouse lacked standing to sue her and seek her removal as trustee. We disagree. Although Richey frames this issue in terms of standing, we note that the proper focus is whether Brouse fell within the category of people authorized to sue. See Berry v. Berry, 646 S.W.3d 516, 527-29 (Tex. 2022) (distinguishing between “standing” as used in “proper, jurisdictional sense” and “standing” as applied to statutory-interpretation question of whether certain individuals fall within group of people authorized to sue). Brouse’s original petition sought removal of Richey as trustee based on Richey’s alleged breaches of her fiduciary duty. The Trust agreement, which Brouse attached to his petition, provided that Brouse was to serve as the first successor trustee in the event Richey was “unable or unwilling” to serve. Thus, Brouse has two independent bases to bring suit against Richey: first, he has standing as a contingent beneficiary named in the Trust agreement, and second, as an interested person under Subsection 113.082(a) of the Property Code. See Tex. Prop. Code §§ 113.082(a) (“A trustee may be removed . . . on the petition of an interested person”), 115.011(a) (providing that interested person may bring action against trustee), 111.004(7) (defining “interested person” as “a trustee, beneficiary, or any other person having an interest in or a claim against the trust or any person who is affected by the administration of the trust”).
Id. The court then held that Richey waived her appeal of the summary judgment order by failing to challenge the evidence supporting the ruling. The court affirmed the orders.