Photo Credit: Rhame & Gorrell Wealth Management, What You Need To Know About The SECURE Act 2.0, https://rgwealth.com/insights/what-you-need-to-know-about-the-secure-act-2-0/

Authored by: Mary-Michael Rhodes

The SECURE Act.

In 2019, Congress passed the Setting Every Community Up for Retirement Enhancement Act (hereinafter the “Act”) as part of a spending and tax extension bill. The Act, commonly referred to as the SECURE Act, was aimed to do exactly what it was named for – allowing widespread ability for Americans to save for their retirement.[1] More specifically, the Act was enacted in the hopes of allowing easier ability to employers to offer tax advantageous retirement plans and making it easier for employees to participate in those plans.[2] The Act was enacted to address the increasingly low number of working individuals who had adequate retirement savings.[3] At the end of 2022, Congress passed the SECURE 2.0 Act[4] (hereinafter “SECURE 2.0”) which added numerous provisions to the Act.[5]

New Requirements Under SECURE 2.0.

Section 101 of SECURE 2.0 expanded automatic enrollment in retirement plans by amending the Internal Revenue Code (“Code”) to add section 414A.[6] Automatic enrollment is a common method by which employers may automatically deduct from an employee’s wages elective deferrals in order to allow for easy participation and increase employees’ retirement savings.[7] Under the provisions in section 414A, certain retirement plans are required to automatically enroll employees.[8] Participants in plans subject to the automatic enrollment requirement will now have to expressly opt out of participating rather than opting in.

Following the enactment of SECURE 2.0, a cash or deferred arrangement (“CODA”) will be treated as qualified CODAs, as defined by 401(k), or annuity contracts, as defined in 403(b), only if they meet the automatic enrollment requirements.[9] As such, SECURE 2.0 requires newly established 401(k) and 403(b) plans which do not meet an exception to include an automatic enrollment feature – an eligible automatic contribution arrangement (“EACA”).[10]

The Code defines an EACA as an employer retirement plan which allows a participant to elect for their employer to make contributions either directly to the plan or to the participant in cash equivalent to a uniform percentage of the employee’s compensation until the employee explicitly chooses otherwise.[11] EACAs must comply with the notice requirements prior to the start of the plan year in order to allow for the employee to opt out or elect to have the contributions made at a percentage other than the uniform percentage under the plan.[12] Pursuant to this requirement, the majority of employers who established either a 401(k) plan or a 403(b) plan on December 29, 2022, or later must include in their 2025 plans an EACA.[13]

In addition to the general requirements for EACAs, plans subject to SECURE 2.0 will be required to comply with certain additional requirements in order to properly be considered an EACA.[14] These requirements include the ability for employees to make permissible withdrawals,[15] the uniform percentage contributed is within a certain range,[16] and the amounts invested are done according to regulation.[17]

A. Permissible Withdrawals.

In order for an EACA to satisfy the permissible withdrawal requirement, the plan must allow for employees to make such withdrawals as defined by section 414(w)(2) of the Code.[18] The Code defines permissible withdrawals as any withdrawal from an EACA that is made as a result of an employee’s election to do so and such a withdrawal consists of funds that the employee elected to contribute to the plan equivalent to the plan’s uniform percentage.[19] Further, the employee must elect to make such a withdrawal no later than 90 days after the first automatic contribution made under the arrangement.[20] This date is recognized to be the date that the automatic contribution would have been included in the employee’s gross income otherwise.[21]  The amount that may be withdrawn is limited to the automatic contributions made under the arrangement.[22] If these requirements are satisfied, the employee can take out their initial automatic contributions without being penalized.

B. Uniform Percentage Contribution.

Under the SECURE 2.0 automatic enrollment requirements, plans must specify the percentage of an employee’s income to be deducted and automatically contributed to the retirement plan.[23] To comply with the uniform percentage contribution requirement of SECURE 2.0, the initial contribution percentage must be between three percent (3%) and ten percent (10%) for the first year in order for to have an EACA.[24] In order to not be subject to compliance with this requirement, the participant must either opt out or explicitly elect to make contributions at a different rate.[25] Further, the uniform contribution percentage must increase by one percent (1%) each plan year until it reaches ten percent (10%), but may not continue in such a manner once it reaches fifteen percent (15%).[26] This rate increase will not be required if the plan’s contribution percentage started at ten percent (10%) or the participant explicitly opts out of such an increase.[27] If any EACA is for a plan year which ended before January 1, 2025, the fifteen percent (15%) requirement will be replaced by a ten percent (10%) contribution percentage requirement.[28]

C. Investments.

Plans subject to SECURE 2.0 must ensure that the amounts which are automatically contributed are done so in accordance with the EACA, are invested properly, and are in compliance with 29 C.F.R. § 2550.40c-5, which is the default requirement that applies where the participant does not elect for the contribution to be invested in an alternative manner.[29] In the event that no election is made, the contributions that are automatically made under the plan will be considered to meet the investment requirements.[30]

Exceptions to SECURE 2.0.

There are exceptions to the automatic enrollment requirements under SECURE 2.0 for retirement plans established prior to the enactment of the statute, plans of small businesses, plans of new businesses, church plans, and governmental plans.[31] Section 414A of the Code specifically provides that the automatic enrollment requirements under SECURE 2.0 will not be applied to any simple plans;[32] any qualified CODAs or annuity contracts purchased under a plan established prior to December 29, 2022;[33] any governmental or church plans;[34] any qualified CODA or annuity contracts purchased under a plan maintained by an employer who has existed for less than three years;[35] or any qualified CODA or annuity contract purchased under a plan maintained by an employer with ten or less employees.[36]

Under this exception, a simple plan will not be subject to the automatic enrollment requirements under Section 414A(b) in order for the arrangement to be treated as a qualified CODA or an annuity contract.[37] To qualify as a simple plan, the plan must meet the contribution, exclusive plan, and vesting requirements specified in the section.[38] A simple plan subject to this exception must comply with the requirements under section 401(k)(11) of the Code.[39]

This exception provides for plans established prior to December 29, 2022, to receive “grandfather” status and therefore not be subject to the automatic enrollment requirements.[40] However, where a plan falls under an exception to the automatic enrollment requirements solely due to its date of establishment, this exception will not apply where an employer adopts such a plan after December 29, 2022, if it is maintained by multiple employers.[41] In the event of adoption of a multiple employer plan (“MEP”) after the enactment of SECURE 2.0, the plan will be subject to the automatic enrollment requirements of section 414A(a).[42]

Included in the exceptions to the automatic enrollment requirement, SECURE 2.0 provides for the exception of any church or governmental plans. A church plan is defined by the Code as a retirement plan that is established and maintained for employees of a church or a group of churches that is tax-exempt.[43] A plan will not be considered a church plan where it is established and maintained for the benefit of employees who are otherwise employed by unrelated businesses or where less than substantially all of the employees do not meet the employee requirements provided in section 414(e).[44] A governmental plan is defined by the Code as any plan which is established and maintained by the government or any agency of the United States for its employees.[45] Where the plan meets the requirements to constitute a church plan or governmental plan, it will not be subject to the automatic enrollment requirements of SECURE 2.0.[46]

The final subset of plans subject to exception from the automatic enrollment requirements of SECURE 2.0 consists of new and small businesses.[47] Pursuant to this exception, any qualified CODA or annuity contract under a plan that has been in existence for under three years will not be subject to the automatic enrollment requirements.[48] Further, any qualified CODA or annuity contract under a plan that is maintained by an employer who has ten or fewer employees.[49] As with the simple plan exception, there is a caveat to the new and small business exception. Where the plan is maintained by multiple employers, the small business exception requirements will be applied independently from the new business exception requirements to each employer.[50] In the event that one employer is subject to the automatic enrollment requirements, they will be considered to maintain a separate plan in regard to this small and new business exception.[51]

Conclusion.

Beginning on January 1, 2025, any plans that are not subject to one of the exceptions under SECURE 2.0 will be required to comply with the additional requirements for automatic contribution to employer retirement plans.[52] Any employer that maintains a retirement plan that is subject to this statute must comply with these requirements going forward in order to avoid costly penalties.[53] As such, it is important for employers to understand what action is necessary under these newly enacted requirements. Given the overall simplicity of the statute when broken down, compliance should come easily and

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[1] Christopher Sonzogni, SECURE Act: What It Means, How It Works, and Rationale, Investopedia (Feb. 1, 2025), https://www.investopedia.com/secure-act-4688468#:~:text=The%20SECURE%20Act%20was%20designed,annuities%20through%20xed%20retirement%20plans..

[2] Sonzogni, supra note 1.

[3] Sonzogni, supra note 1 (“A 2018 study by Northwestern Mutual found that one in five Americans have no retirement savings at all, while one in three of those closest to retirement age has less than $25,000 saved.”).

[4] See generally SECURE 2.0 Act of 2022 (2022).

[5] U.S. S. Comm. on Fin., https://www.finance.senate.gov/download/retirement-section-by-section-;Sonzogni, supra note 1.

[6] SECURE 2.0 Act of 2022 § 101 (2022); see also Tom Morgan, I.R.S. Notice 2024-2, https://www.irs.gov/pub/irs-drop/n-24-02.pdf.

[7] Eric Droblyen, SECURE 2.0’s Automatic Enrollment Mandate for 401(k)(s) – What Employers Need to Know, Employee Fiduciary (Mar. 26, 2024), https://www.employeefiduciary.com/blog/secure-2.0-automatic-enrollment.

[8] See generally 26 U.S.C. § 414A; see also Automatic Enrollment Requirements Under Section 414A, 90 Fed. Reg. 3092, 3092 (proposed Jan. 10, 2025).

[9] I.R.C. § 414A(a).

[10] I.R.C. § 414A(b)(1); Rachel Fetters, Mandatory Automatic Enrollment Under SECURE 2.0, Ascensus (Oct. 17, 2024), https://thelink.ascensus.com/articles/2024/10/16/mandatory-automatic-enrollment-under-secure-20.

[11] I.R.C. § 414(w)(3).

[12] I.R.C. § 414(w)(4).

[13] Fetters, supra note 5.

[14] I.R.C. § 414A(b)(1).

[15] I.R.C. § 414A(b)(2).

[16] I.R.C. § 414A(b)(3).

[17] I.R.C. § 414A(b)(4).

[18] I.R.C. § 414A(b)(2).

[19] I.R.C. § 414(w)(2)(A).

[20] I.R.C. § 414(w)(2)(B).

[21] Automatic Contribution Arrangements, 74 Fed. Reg. 8200, 8205 (Feb. 24, 2009).

[22] I.R.C. § 414(w)(2)(C).

[23] Droblyen, supra note 8.

[24] I.R.C. § 414A(b)(3)(A)(i).

[25] I.R.C. § 414A(b)(3)(A)(i).

[26] I.R.C. § 414A(b)(3)(A)(ii); U.S. S. Comm. on Fin., supra note 5.

[27] I.R.C. § 414A(b)(3)(A)(ii).

[28] I.R.C. § 414A(b)(3)(B).

[29] I.R.C. § 414A(b)(4).

[30] Id.

[31] U.S. S. Comm. on Fin., supra note 5.

[32] I.R.C. § 414A(c)(1).

[33] I.R.C. § 414A(c)(2)(A)(i)-(ii).

[34] I.R.C. § 414A(c)(3).

[35] I.R.C. § 414A(c)(4)(A).

[36] I.R.C. § 414A(c)(4)(B).

[37] I.R.C. § 414A(c)(1); I.R.C. § 414A(a).

[38] I.R.C. § 401(k)(11)(A).

[39] I.R.C. § 414A(c)(1).

[40] I.R.C. § 414A(c)(2)(A).

[41] I.R.C. § 414A(c)(2)(B).

[42] Id.

[43] I.R.C. § 414(e)(1).

[44] I.R.C. § 414(e)(2).

[45] I.R.C. § 414(d).

[46] I.R.C. § 414A(c)(3).

[47] I.R.C. § 414A(c)(4).

[48] I.R.C. § 414A(c)(4)(A).

[49] I.R.C. § 414A(c)(4)(B).

[50] I.R.C. § 414A(c)(4)(C).

[51] Id.

[52] I.R.C. § 414A(b).

[53] Droblyen, supra note 7.

Photo Credit: Puppet Nerd, How Much Does A Puppet Cost?, (last updated December 6, 2021), https://puppetnerd.com/how-much-does-a-puppet-cost/.

Authored by: Bailey L. Fisher

From class actions to multidistrict litigation (“MDL”), the world of complex litigation in the United States is constantly evolving.[1] The second decade of the 21st century brought many things to the United States– one being third-party lenders.[2] Third-party lenders are entities that finance litigation, often providing funds to law firms or directly to plaintiffs.[3] Naturally, third-party financing in complex cases comes with skepticism from individuals around the legal community.[4] What are the consequences of allowing third-party lenders to fund complex cases, and what can we expect in the future?

Third-party lenders had earlier success in other areas, like Australia and the United Kingdom.[5] With the rise of complex litigation in the United States came opportunities for third-party lenders.[6] The success of third-party litigation funding can largely be attributed to the rise in efforts to solve inequities commonly observed during litigation when companies are able to drown their civil opponents in a sea of costly discovery.[7]  In the words of Judge Jeffrey Cole of the United States District Court for the Northern District of Illinois, Eastern Division, “[c]reative businessmen, ever alert to new opportunities for profit, perceived in this economic inequality a chance to make money and devised what has come to be known as third-party litigation funding, where money is advanced to a plaintiff, and the funder takes an agreed upon cut of the winnings.”[8] While third-party financing may seem like a life vest for plaintiffs, it does not come without concerns, questions, and skepticism.[9]

In the murky waters of complex litigation, one thing is clear—third-party lenders are not bound by the Model Rules of Professional Conduct.[10] However, the attorneys who use them are.[11] Comment 14 to Rule 1.8 of the Model Rules of Professional Conduct states, “[b]ecause third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client.”[12] Attorneys must act in the best interests of their clients when using third-party financing in order to avoid violating their duties to the Bar, especially when it comes to fee sharing and control over the litigation.[13]

In In re Agent Orange Product Liability Litigation, the issue of “whether an undisclosed, consensual fee sharing agreement, which adjusts the distribution of court awarded fees in amounts which represent a multiple of the sums advanced by attorneys to a class for litigation expenses, satisfies the principles governing fee awards and is consistent with the interests of the class” was addressed.[14] In Agent Orange, the fee sharing agreement involved a return on investment.[15] The Second Circuit found that the fee-sharing agreement “places class counsel in a position potentially in conflict with the interests of the class,” as it could lead to an incentive to settle early when the promised return is met, making the settlement offer outweigh the risks of continuing litigation.[16] The court also found that fee sharing agreements must be presented to the court for approval at the time the agreement is formulated.[17] Because third-party litigation funding involves a return on investment, procedures to place clients’ interests first and prevent undue influence should be in place.[18]

In In re Pork Antitrust Litigation, Burford Capital provided financing for MDL.[19] Pursuant to its financing agreement, Burford Capital was granted veto power over settlements.[20] The United States District Court for the Middle District of Minnesota refused to approve conduct that allowed third-party financers to control litigation.[21] Quoting Maslowski v. Prospect Funding Partners LLC, the court stated that courts must “be careful to ensure that litigation financiers do not attempt to control the course of the underlying litigation.”[22]

Questions as to matters of discoverable materials when parties contract with third-party lenders have resulted from the rise in third-party litigation funding.[23] In Miller UK Ltd. v. Caterpillar, Inc., the United States District Court for the Northern District of Illinois, Eastern Division, addressed these issues.[24] Citing multiple articles and commentary on this topic,[25] the opinion in Miller noted the role of the legislature in resolving this societal question, and thus the court refused to comment on the merits or “societal value” of third-party litigation funding.[26] However, the court in Miller did hold that the work product doctrine protects work product in cases involving third-party funding, as long as precautions are taken to not substantially increase the likelihood of opponents receiving the information.[27]

Some state legislatures have enacted laws combatting or restricting the scope of third-party litigation funding.[28] For example, Indiana enacted House Bill 1160, which limits thirty party lender’s access to data, prevents third-party lenders from influencing decisions in lawsuits, and requires disclosure of the financing agreement.[29] States, such as Louisiana, West Virginia, Montana, and Wisconsin have enacted similar laws.[30] Many other states have discussed passing similar legislation.[31]

Attorneys must be able to adapt to the changing tides of complex litigation, especially in the age of third-party financing agreements. For plaintiffs, third-party litigation funding is an extremely attractive method for financing expensive cases and combatting wealthy entities. For defendants, third-party financing can be an obstacle to overcome. Both sides must be cognizant of the changing landscape of funding, especially considering rules, legislation, and comments to the Model Rules of Professional Conduct. Remaining up to date on these changes will allow plaintiffs to protect themselves from attacks by the defense. Defense attorneys should be prepared with relevant arguments, especially when seeking materials during discovery. To protect themselves from violating ethical rules or laws, plaintiff attorneys should disclose financing agreements to the court, shield the third-party from decision making and planning decisions, and create a method for paying third-party lenders that is in the best interests of their clients. The bottom line is this: do not be a puppet and let the third-party financer pull the strings in litigation.

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[1] See Joseph Ostoyich & Becca Brett, US Class Actions: Where We’ve Been and Where We Might Be Headed: Part 3: What Lies Ahead for Class Actions?, Clifford Chance (March 4, 2025), https://www.cliffordchance.com/insights/resources/blogs/group-litigation-and-class-actions/2025/03/us-class-actions-where-we-have-been-and-where-we-might-be-headed-part-3-what-lies-ahead-for-class-actions.html (“The landscape of class action litigation in the United States has undergone significant changes over the past few decades, from an infrequently used tool to an explosion of class actions so great it required the use of MDLs to manage the burdens on the judiciary to the backlash and tightening of class certification standards.”).

[2] Mark Behrens, Third-Party Litigation Funding: A Call for Disclosure and Other Reforms to Address the Stealthy Financial Product That Is Transforming the Civil Justice System, 34 Cornell J.L. & Pub. Pol’y 1, at 4 (2024) (“Large-scale TPLF began in Australia, made its way to the United Kingdom, and arrived in the United States about a decade ago.”).

[3] What You Need to Know About Third Party Litigation Funding, U.S. Chamber of Commerce Institute for Legal Reform (June 7, 2024), https://instituteforlegalreform.com/what-you-need-to-know-about-third-party-litigation-funding/ (“Litigation Funders: Entities that advance money to plaintiffs or law firms to cover litigation or other costs on a non-recourse basis contingent on the outcome of the case.”).

[4] See id.

[5] Mark Behrens, supra n. 2, at 4.

[6] See Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 718 (N.D. Ill. 2014).

[7] Id. (“Where a defendant enjoys substantial economic superiority, it can, if it chooses, embark on a scorched earth policy and overwhelm its opponent.”).

[8] Id.

[9] See id. (“Third party litigation funding is a relatively new phenomenon in the United States. The business model has generated a good deal of commentary about and controversy over its intrinsic value to society (or lack thereof depending on one’s perspective) and the discoverability of the actual funding contract and information turned over to prospective funders by a party’s lawyer during negotiations to secure financing.”).

[10] See Model Rules of Pro. Conduct r. 1.8, cmt. 14 (Am. Bar Ass’n). 

[11] Id.

[12] Id.

[13] See id.; see In re Agent Orange Prod. Liab. Litig., 818 F.2d 216 (2d Cir. 1987); see In re Pork Antitrust Litig., No. CV 18-1776 (JRT/JFD), 2024 WL 2819438 (D. Minn. June 3, 2024).

[14] Agent Orange, 818 F.2d at 221-22.

[15] Id. at 223-24.

[16] Id. at 224.

[17] Id. at 226.

[18] See id.

[19] Pork Antitrust, at *1.

[20] Id.

[21] Id. at *4.

[22] Id.; see Maslowski v. Prospect Funding Partners LLC, 944 N.W.2d 235, 241 (Minn. 2020).

[23] See Miller,17 F. Supp. 3d at 711.

[24] Id.

[25] Id. at 718 n.1.

[26] Id. at 742.

[27] Id. at 735-37 (first citing Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3rd Cir. 1991); and then quoting Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1025 (7th Cir. 2012)).

[28] New Legislation in Indiana, Louisiana, and West Virginia Addresses Secretive Third Party Litigation Funding, U.S. Chamber of Commerce Institute for Legal Reform (July 25, 2024), https://instituteforlegalreform.com/blog/new-legislation-in-indiana-louisiana-and-west-virginia-addresses-secretive-third-party-litigation-funding/.

[29] Id.

[30] Id.

[31] More States Pushing Back on Third-Party Litigation Funding, Claims and Litigation Management Alliance (April 23, 2024), https://www.theclm.org/Magazine/articles/more-states-moving-to-regulate-third-party-litigation-funding-of-plaintiffs-lawsuits/2923#:~:text=Considering%20the%20mixed%20results%20in,but%20none%20of%20those%20passed.

Photo Credit: Paige Pfleger, The Supreme Court Will Decide if Domestic Abuse Orders Can Bar People From Having Guns. Lives Could Be at Stake., ProPublica (Nov. 3, 2023, 6:00 AM), https://www.propublica.org/article/us-vs-rahimi-gun-rights-domestic-violence-converge-supreme-court-case

Authored by: Anna L. Dozier

United States v. Rahimi is a significant Supreme Court case decided 8-1 regarding the rights and protections of the Second Amendment concerning domestic violence.[1] The Second Amendment provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] The question raised in Rahimi is whether a federal statute prohibiting an individual at the mercy of a restraining order due to domestic violence from being in possession of a firearm is consistent with the Second Amendment.[3] 18 U.S.C. § 922 (g)(8) prevents any person subject to a domestic violence restraining order from possessing a firearm, punishable by up to 15 years in prison, if three requirements are met: (1) before the order is entered, the defendant must receive actual notice and must have an opportunity to contest or be heard, (2) the order must include a prohibition of the defendant from “harassing, stalking, or threatening an intimate partner . . . or child of such intimate partner” or acting in such a way to put either of them in “reasonable fear of bodily injury,” and (3) the order finds that the defendant poses a “credible threat to the physical safety of such intimate partner or child” or “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force . . . that would reasonably be expected to cause bodily injury.”[4]

At the center of this case is Zackey Rahimi, charged with violating 18 U.S.C. § 922. Rahimi challenged the prima facie constitutionality of this statute, arguing that it violated the Second Amendment on its face.[5] In 2019, Rahimi began arguing with his girlfriend, the mother of his child, in a park where he dragged her to his car and shoved her in, causing an injury to her head while an onlooker watched.[6] Upon noticing the individual, Rahimi reached to pull out his gun from the car, giving his girlfriend an opportunity to run; however, he then fired his gun, unclear if it was aimed either towards her or the onlooker.[7] His girlfriend then sought a restraining order even after Rahimi threatened to shoot her if she reported the incident.[8] After Rahimi declined to contest, a restraining order was placed on him, finding that his violence was “likely to occur again” and he was a “credible threat” to the “physical safety” of his girlfriend, an intimate partner.[9] This triggered the suspension of his gun license for two years, the duration of the restraining order.[10] A few months later, Rahimi approached his girlfriend’s house and tried to contact her through social media multiple times in violation of the restraining order.[11] A few months after that, he threatened a different woman with a gun.[12] While being arrested for this assault, the police found he was involved in several more shootings in Texas, including ones from a drug deal and road rage.[13] While conducting a lawful search of Rahimi’s house, the police found weapons, ammunition, and a copy of the restraining order.[14]

Rahimi was then charged with unlawful firearm possession under the statute, and the district court subsequently denied Rahimi’s motion to dismiss the indictment on his argument that the statute violated the Second Amendment.[15] Consequently, he plead guilty while appealing with the same facial challenge.[16] After his appeal was denied, Rahimi petitioned for a rehearing en banc.[17] While awaiting a decision on his appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen,[18] where the Court ruled that federal restrictions on firearms must be “consistent with the Nation’s historical tradition of firearm regulation.”[19] As a result, Rahimi was granted a new panel to hear the arguments, and the court reversed its decision, finding that 18 U.S.C. § 922 (g)(8) “does not fit within our tradition of firearm regulation.”[20] Subsequently, the Supreme Court granted certiorari.[21]

Writing for the majority opinion, Chief Justice John Roberts upheld 18 U.S.C. § 922 (g)(8), concluding that it does not, on its face, violate the Second Amendment, noting that our Nation’s history is not unfamiliar with restricting firearm use for violent individuals.[22] The right to keep and bear arms under the Second Amendment is a fundamental right that ensures Americans’ means of self-defense, however, this right is not without limits.[23] The most recent test for the constitutionality of Second Amendment restrictions is found in Bruen, where the Supreme Court instructed lower courts to base their decisions on the “historical tradition of firearm regulation.”[24] Unfortunately, lower courts have interpreted this to exclude the evolution of legislation that restricts only the use of “muskets and sabers,” a suggestion that the Court denies in Rahimi.[25] The Supreme Court in District of Columbia v. Heller[26] clarified that the Second Amendment extends beyond just the weapons that existed at our Nation’s founding, and it permits updated legislation to apply protections of our modern weapons that were not in existence at our Nation’s founding.[27]

Clarifying Bruen, the Supreme Court reiterates that in considering whether a regulation aligns with our nation’s history, the courts must decide if the regulation is “relevantly similar,”[28] not a “historical twin,”[29] to the traditional permits of our laws.[30] In doing so, the courts should faithfully discern the balance between our nation’s founding principles and the modern circumstances we currently face.[31] In a facial challenge like Rahimi’s, a defendant must “establish that no set of circumstances exists under which the Act would be valid,”[32] meaning the Government must only demonstrate that the Act is constitutional in any set of circumstances.[33] The statute is constitutional as applied to the circumstances in Rahimi.[34]

The majority opinion examines the history of early English law and American common law regarding restrictions on arms for violent individuals to determine whether 18 U.S.C. § 922 (g)(8) is relevantly similar to founding traditions and, therefore, constitutional on its face.[35] The Court uses two examples from English law that were incorporated into American common law: surety laws and going armed laws.[36] Surety laws were preventative measures allowing a judge to order an individual, including a spouse, to post a bond if the individual was suspected of committing future violence and misusing firearms.[37] While surety laws aimed to protect against future misconduct by violent individuals, going armed laws worked to punish those individuals for affrays.[38] The prohibition on affrays could require those who armed themselves to instill terror in others to forfeit their arms.[39] Drawing from these historical traditions, the Supreme Court in Rahimi finds that it is “common sense” that an individual may be disarmed if they pose a “clear threat of physical violence to another.”[40] 18 U.S.C. § 922 (g)(8) is not identical, but still relevantly similar to the surety and going armed laws, as all work to restrict firearms in the context of threats of physical violence.[41] Thus, this federal statute does not violate the Second Amendment when a court temporarily disarms an individual who poses a credible threat of physical violence.[42]

Justice Clarence Thomas respectfully dissents, arguing that 18 U.S.C. § 922 (g)(8) targets the core of the Second Amendment, and the majority failed to identify any historical traditions or laws that support or are relevantly similar to the statute.[43] He critiques the majority for upholding this statute, as it automatically strips individuals of a right without proper due process.[44] Justice Thomas asserts that the Government cannot remove the right to keep and bear arms from those subject to a restraining order if the individual has never been convicted of a crime.[45] He does not dispute that Bruen requires firearm regulations to align with our Nation’s traditions.[46] Still, he finds the majority’s reliance on the early traditions of surety laws and going armed laws undermines the purpose of the Second Amendment, as those traditions feed the dangerous idea that Congress can disarm those deemed dangerous or unfit.[47] He warns of a future where the Rahimi decision will “risk the Second Amendment rights of many more.”[48]

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[1] 602 U.S. 680 (2024).

[2] U.S. Const. amend II.

[3] Rahimi, 602 U.S. at 684-86.

[4] 18 U.S.C. § 922 (g)(8)(A-C).

[5] Rahimi, 602 U.S. at 689.

[6] Id. at 686.

[7] Id.

[8] Id.

[9] Id. at 686-87.

[10] Id. at 687.

[11] Rahimi, 602 U.S. at 687.

[12] Id.

[13] Id.

[14] Id. at 688.

[15] Id. at 68-89.

[16] Id. at 689.

[17] Rahimi, 602 U.S. at 689.

[18] 597 U.S. 1 (2022).

[19] Rahimi, 602 U.S. at 689; Bruen, 597 U.S. at 24.

[20] Rahimi, 602 U.S. at 689.

[21] Id.

[22] Id.

[23] District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

[24] Bruen, 597 U.S. at 17.

[25] Rahimi, 602 U.S. at 691-92.

[26] 554 U.S. at 570.

[27] Rahimi, 602 U.S. at 691-62.

[28] Bruen, 597 U.S. at 29.

[29] Id. at 30.

[30] Rahimi, 602 U.S. at 692 (emphasis added).

[31] Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692.

[32] United States v. Salerno, 481 U.S. 739, 745 (1987).

[33] Rahimi, 602 U.S. at 693.

[34] Id.

[35] Id. at 693-94.

[36] Id. at 693, 697.

[37] Id. at 695-97.

[38] Id. at 697.

[39] Rahimi, 602 U.S. at 697.

[40] Id. at 698.

[41] Id. at 699.

[42] Id.

[43] Id. at 751.

[44] Id. at 748.

[45] Rahimi, 602 U.S. at 777.

[46] Id. at 750.

[47] Id. at 774.

[48] Id. at 777.

Photo Credit: The Federalist Society, Muldrow v. St. Louis [SCOTUSbrief], YouTube (July 29, 2024), https://www.youtube.com/watch?v=oM4XOc7tLm0

Authored by: Sydney F. Jeffcoat

Under Title VII, it is illegal for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion sex, or national origin.”[1] Thus, to comply, an employer cannot discriminate against an employee or potential employee based on one of those characteristics. Although this may seem like a plain and simple law to follow, courts across the country have struggled to define when an employee or potential employee is harmed because of one of these characteristics.[2] As a result, the Court sought to clarify the appropriate standard in Muldrow v. City of St. Louis.[3]

In Muldrow, Sergeant Jatonya Clayborn Muldrow, alleged that her employer, the St. Louis Police Department, discriminated against her based on her sex.[4] For almost ten years, Sergeant Muldrow served as an officer in the Intelligence Division of the St. Louis Police Department.[5] Muldrow’s commander left the Intelligence Division in 2017 and informed her successor that Muldrow was a great employee.[6] Disregarding the previous commander’s comments, the new commander transferred Muldrow out of the Intelligence Division and replaced her with a male officer.[7] Muldrow was then assigned to a position in the St. Louis Police Department’s Fifth District.[8]

As a result, many parts of Muldrow’s job changed. First, her job duties changed, as she was no longer able to work on public corruption and human trafficking cases and instead supervised the everyday activities of the neighborhood patrol officers.[9] Second, she now spent most of her time performing administrative tasks.[10] Third, she was stripped of her FBI credentials and her unmarked take-home vehicle.[11] Lastly, she began to work a sporadic schedule as compared to a traditional Monday to Friday schedule.[12] The only consistency that remained after the reassignment was her compensation and rank.[13] As a result, Muldrow sued the St. Louis Police Department alleging that she was transferred due to her sex.[14] The district court granted summary judgment and the Eight Circuit Court of Appeals affirmed because Muldrow could not show that her reassignment resulted in a “materially significant disadvantage.”[15] The United States Supreme Court granted certiorari.[16]

In Muldrow, the Court looked at the text of the statute to determine the appropriate standard for a Title VII claim.[17] In its analysis, the Court stated that the high bar of demonstrating that a change in employment must result in a “materially significant disadvantage” is nowhere to be found in the legislative text.[18] In an effort to make the standard as simple as the legislative text, the Court stated that a plaintiff must only show that “some harm” resulted from a change in employment.[19] The Court reasoned that the new standard will force the beholder of the claim to examine all kinds of disadvantages, not just materially significant disadvantages.[2o] However, this standard seems to make the test just as subjective as it was before. The only guidance the Court gave about how to apply this new standard is that the change must be “disadvantageous.”[21] While the bar is clearly much lower, defining what “some harm” is will most likely be an obstacle to the lower courts.[22] Is this standard too simple?[23] Will it lead to a flood of litigation in the courts?[24] Will this new standard even change the outcomes of Title VII claims?[25] These are the types of questions that the concurring opinions sought to address, but they will likely have to be addressed again in the future.

It will certainly be interesting to see if this new standard results in more confusion amongst the courts because of its subjective nature. There is no doubt that this new standard will make it much easier for plaintiffs to bring a claim under Title VII because of the low bar that must be met. Thus, employers should carefully evaluate any changes to an employee’s job to make sure it does not relate to an employee’s protected status, as even minor changes can now result in a lawsuit due to the low bar.[26] Furthermore, many predict that this decision will have a great impact on Diversity, Equity, and Inclusion hiring programs.[27] In the end, it will depend on how the beholder of the Title VII claim defines “harm” to determine the outcome.

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[1] 42 U.S.C. § 2000e-2(a)(1).

[2] See, e.g., Caraballo-Caraballo v. Correctional Admin., 892 F.3d 53, 61 (1st Cir. 2018) (stating that an employee must show that the action left them with “significantly different responsibilities”); Webb-Edwards v. Orange Cty. Sherriff’s Office, 525 F.3d 1013, 1033 (11th Cir. 2008) (stating that the employee must show that the action resulted in a “serious and material change”); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (stating that an employee must show that the action resulted in a “materially significant disadvantage”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004) (stating that the employee must show that the action had a “significant detrimental effect”); O’Neal v. Chicago, 392 F.3d 909, 911 (7th Cir. 2004) (stating that an employee must show they suffered a “materially adverse employment action”); Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998) (stating than an employee must show more than a “mere inconvenience or alteration of job responsibilities”).

[3] 601 U.S. 346 (2024).

[4] Id. at 350.

[5] Id.

[6] Id. at 350-51 (“In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a ‘workhorse’–still more, that ‘if there was one sergeant he could count on in the Division’, it was Muldrow.”) (quoting Muldrow v. City of St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113, *1 (E.D. Mo. Sept. 11, 2020)).

[7] Muldrow, 601 U.S. at 351.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Muldrow, 601 U.S. at 351.

[14] Id.

[15] Id. at 352.

[16] Id. at 353.

[17] Id. at 353-54.

[18] Id. at 355 (“There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones.”).

[19] Muldrow, 601 U.S. at 354 (“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”).

[20] Id. at 355-56 (stating that appellate decisions were reaching different conclusions because “the answers [lied] in the eye of the beholder,” and as a result, workers were required to show a harm “that the statutory text [did] not require”).

[21] Id. at 354.

[22] See id. at 362 (Alito, J., concurring) (“I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.”).

[23] But see id. at 364-65 (Kavanaugh, J., concurring) (arguing that the new standard is not simple enough because the text of the statute does not require a showing of harm once it is proven that an employer’s action is discriminatory).

[24] Id. at 358 (rejecting the defendant’s public policy objection that the new standard will cause “the floodgates [to] open in the way feared”); see also Stephanie L. Adler-Paindiris et. Al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim.

[25] Muldrow, 601 U.S. at 363 (Alito, J., concurring) (arguing that this decision will have no effect on Title VII claims because judges will continue to do what they have previously done by using different wording).

[26] Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.

[27] See Stephanie L. Adler-Paindiris et. al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim; Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.

Photo Credit: Fiveable, Courts and Society Review: 6.1 Right to Counsel, (last updated Aug. 20, 2024), https://fiveable.me/courts-society/unit-6/counsel/study-guide/4iKskTZZehZeIIjq.

Authored by Kaitlyn Fowler

The Sixth Amendment provides numerous trial-related protections and hosts one of the most crucial rights for those accused of a crime—the right to “have the Assistance of Counsel for his defence.”[1] This right is guaranteed to anyone being charged with a crime for which “a term of imprisonment is imposed,” regardless of their ability to pay for counsel.[2] If the defendant is unable to pay for counsel, an attorney will be appointed for them.[3] This right “attaches at the initiation of adversarial judicial proceedings, ‘whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’”[4] The caveat for indigent defendants is that they cannot choose their counsel, while those who opt to get a private attorney clearly can.[5]  The constitutionality of this discrepancy has been upheld by the United States Supreme Court due to an indigent defendant not being permitted to “insist on representation by an attorney he cannot afford.”[6]

A further discrepancy regarding the differences between an indigent defendant and one who can afford legal counsel has never directly been addressed by the Supreme Court—whether an indigent defendant has the right to continued representation by counsel who has been appointed to them throughout the course of all proceedings related to the case.[7] This question was recently raised by a man named William Davis (“Davis”), who believes his Sixth Amendment right to counsel was violated when his appointed counsel changed.[8]

Davis was arrested and charged with multiple vehicular offenses on April 20, 2017.[9] Because he was found to be indigent, Davis was appointed Garen Gervey (“Gervey”) as his public defender.[10] Subsequently, “Davis, through counsel, moved for a continuance” due to various scheduling conflicts, which the Court denied.[11] Because Davis’ current attorney would only be able to continue to represent him if granted a continuance, Davis attempted his motion for a second time, asserting that he had a right to continued representation by Gervey.[12] The Court once again denied the motion on the grounds that “‘substitution of one public defender with another does not violate the Sixth Amendment… absent evidence of prejudice.”[13] The Court determined that Davis would not face any prejudice, as the nature of the case was simple enough that a reasonably competent attorney would easily be able to prepare for trial.[14] Davis was subsequently convicted, and the matter was then brought before the Colorado Court of Appeals.[15]

The Court of Appeals sided with Davis and reversed his conviction on the grounds that “indigent defendants have a constitutional right to continued representation by appointed counsel.”[16] The People petitioned the Colorado Supreme Court for review, and it granted certiorari.[17] Ultimately, the Court found a difference between the “right to effective assistance of counsel and the more limited right to choice of counsel.”[18] This limited right to choice of counsel is what ultimately grants the right to continued representation by that specific counselor.[19] The Colorado Supreme Court thus reversed and remanded the decision of the Appellate Court.[20]

A writ of certiorari was then presented to the United States Supreme Court. While awaiting the Court’s decision, several briefs were submitted to the Court, including one from the National Association of Criminal Defense Lawyers (“NACDL”).[21] The NACDL contended that the right to continuous representation should be viewed as even more important in regard to indigent defendants, as they are already “at the mercy of overworked public defenders and court appointed attorneys.”[22] Arguably, these restraints already make it hard for public defenders to advocate zealously for their indigent clients, so the NACDL advocated that absent a clear right to continued representation by appointed counsel, that goal is nearly impossible.[23]

On the contrary, the state of Colorado’s position is that the Court’s prior decisions have already decided this issue—the Sixth Amendment right to counsel does NOT equate to continuity of such counsel.[24] The crux of Colorado’s argument is that the continuity right is contingent on the right to choose one’s counsel.[25] Because indigent defendants do not choose their counsel, rather, counsel is chosen for them, the added right of continuity cannot be said to attach.[26]

Ultimately, the Court denied the petition for certiorari on October 15, 2024. It can be assumed that this is the Court’s way of implicitly siding with Colorado, due to Colorado’s insistence that there was no need to take the case because there is already an answer. All one can do at this point is wait and see if this issue continues to be litigated, as eventually the Court may find a case compelling enough to warrant review. Until then, lower courts will likely continue to interpret and apply contradictory precedents, leading to varied approaches across jurisdictions.

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[1] U.S. Const. amend. VI.

[2] U.S. v. Bryant, 579 U.S. 140, 143 (2016) (citation omitted).

[3] Reynolds v. State, 114 So. 3d 61, 88 (Ala. Crim. App. 2010) (“An indigent defendant who cannot afford to retain an attorney has an absolute right to have counsel appointed by the Court.”) (quotation omitted) (citation omitted).

[4] Joseph P. Van Heest, Rights of Indigent Defendants After Alabama v. Shelton, 63 Ala. Law. 370, 370 (2002) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

[5] See Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617, 624 (1989) (“The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”).

[6] Wheat v. U.S., 486 U.S. 153, 159 (1988).

[7] Docket No. 23-1096, Pet. at i.

[8] See id.

[9] People v. Davis, Case No. 21SC388, ¶ 3 (Colo. 2023).

[10] Id.

[11] Id. ¶ 4.

[12] Id. ¶ 5.

[13] Id. ¶ 6 (quoting People v. Coria, 937 P.2d 386, 389 (Colo. 1997)).

[14] Id.

[15] Davis, Case No. 21SC388, ¶¶ 8-9.

[16] Id. ¶ 9.

[17] Id. ¶ 10.

[18] Id. ¶ 11.

[19] Id.

[20] Id. ¶ 25.

[21] See Brief of Nat’l Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Davis v. Colorado, No. 23-1096 (May 23, 2024).

[22] Id. at 6.

[23] Id. at 7.

[24] See Brief of Colorado in Opposition, Davis v. Colorado, No. 23-1096 (July 8, 2024).

[25] Id. at 7.

[26] Id.