Photo Credit: Michelle John, Photograph of Robert and Brenda Andrew with their children, in “Dear diary, today I killed my husband…”, MEDIUM (Mar 16, 2023), https://medium.com/@michellejohn2003/dear-diary-today-i-killed-my-husband-241361b86bf5.

Authored by: Abigail C. Frazier

In November of 2001, Robert (“Rob”) Andrew and his wife Brenda were shot in their garage by two armed assailants.[1] Robert succumbed to his injuries, but his wife Brenda lived to tell the tale.[2] After the incident, Brenda informed the police that while she and her husband were in fact separated, they still saw each other frequently because of their children.[3] Interestingly enough, at the time of the shooting, Brenda was dating another man, James Pavatt. After her husband’s death, the pair traveled to Mexico together, and both soon became suspects in Rob’s murder.[4] Ultimately, Pavatt confessed to the shooting, stating that he committed it “with a friend.”[5] Pavatt denied Brenda Andrew’s involvement in the shooting of her husband, but both were charged with capital murder.[6] At trial, Pavatt was found guilty and sentenced to death.[7]

At Brenda Andrew’s trial, the prosecution had the burden to prove that “Andrew had conspired with Pavatt, an insurance agent, to murder her husband for the proceeds of his life insurance policy.”[8] The prosecution elicited evidence about Brenda’s past sexual partners, her choice in outfits, and her past sexual experiences.[9] Multiple of the prosecution’s witnesses “exclusively” testified about the provocative nature of Brenda’s clothing, while other witnesses who took the stand discussed whether “a good mother would dress or behave” how Brenda Andrew dressed and behaved.[10] The prosecution went as far as displaying Andrew’s underwear to the jury during closing argument.[11]

In 2004, Andrew was convicted of murdering her husband, Rob Andrew, and sentenced to death.[12] Andrew appealed and argued that “the introduction of irrelevant evidence . . . violated Oklahoma law as well as the Federal Due Process Clause.”[13] The Oklahoma Court of Criminal Appeals held that evidence regarding Andrew’s affairs was “proper because it showed that ‘[h]er co-defendant was just the last in a long line of men that she seduced.’”[14] However, the court struggled to find relevance for the other challenged evidence, besides the fact it could be viewed in relation to Andrew’s character.[15] The court nonetheless denied relief, stating that the errors were “harmless.”[16]

Judge Johnson and Judge Chapel both dissented.[17] In Judge Johnson’s dissent, she argued that the evidence introduced at the trial “had no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman,” and that this evidence caused the jurors to “trivialize the value of her life.”[18] In a separate dissent, Judge Chapel stated he would have “reversed the conviction and remanded for a new trial.”[19]

Subsequently, Andrew filed a federal habeas petition, in which she argued that the evidence introduced at her trial was “so prejudicial as to violate the Due Process Clause” of the Fourteenth Amendment.[20] Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a party is required to identify the “clearly established federal law governing [their] claim.”[21] The Tenth Circuit believed that “no holding of [the Supreme Court] established a general rule that the erroneous admission of prejudicial evidence could violate due process.”[22] The Tenth Circuit thus rejected Andrew’s claim and affirmed the Oklahoma Court of Criminal Appeals decision, holding that Andrew did not cite the required federal law in her claim.[23]

However, as noted by the majority, Andrew did cite Payne v. Tennessee, which states that the Due Process Clause can be a means of relief when unduly prejudicial evidence “renders [a] trial fundamentally unfair.”[24] The District Court determined that the part of Payne cited by Andrew was not a holding, but rather a “pronouncement” of the Supreme Court.[25] Therefore, the court did not consider whether the Oklahoma Court of Criminal Appeals “unreasonably applied Payne.”[26] In his dissent, Judge Bacharach argued that he would have held that Ms. Andrew was deprived of a “fundamentally fair trial” because the State’s focus on her sex life “pluck[ed] away any realistic chance that the jury would seriously consider her version of events.”[27]

The Supreme Court concluded that the Tenth Circuit was incorrect because its previous decision, Payne v. Tennessee, held that the Due Process Clause could be violated by unduly prejudicial evidence.[28] According to the Court, habeas relief may be granted “only if the state court relied on an unreasonable determination of the facts or unreasonably applied ‘clearly established Federal law, as determined by’ this Court.”[29] Petitioners must demonstrate that the state court unreasonably applied “the holdings, as opposed to the dicta” of Supreme Court decisions.[30] A principle is a “holding” for purposes of AEDPA, when the Supreme Court “relies on a legal rule or principle to decide a case.”[31] According to the Court, it was clear that Andrew “properly identified clearly established federal law” when she cited Payne.[32]

The Supreme Court emphasized that Payne did not “invent due process protections against unduly prejudicial evidence.”[33] In Payne, the Court considered “whether to overrule a set of prior cases that had categorically barred the introduction of victim impact evidence during the sentencing phases of a capital trial.”[34] The Court asserted that victim impact evidence serves “entirely legitimate purposes” in many instances.[35] Therefore, the Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment provides a mechanism of relief against unduly prejudicial evidence and, furthermore, that a categorical bar was not necessary to preclude overly prejudicial testimony.[36]

In the case at hand, the Court notes that the Due Process Clause preventing admission of unduly prejudicial evidence was “indispensable” to Payne, making it a holding for purposes of AEDPA.[37] Nevertheless, the Court of Appeals held Payne “merely established that the Eighth Amendment did not erect a ‘per se bar’ to the introduction of victim-impact statements in capital cases.”[38] In its opinion, the Supreme Court dismissed the Court of Appeals’ assertion and explained that in Payne, the availability of Due Process Clause relief was “expressly relied on” in reaching their conclusion.[39]

Furthermore, Payne’s framework had previously been applied to claims very similar to Andrew’s.[40] Accordingly, the Court found that “Andrew does not rely on an interpretation or extension of this Court’s cases but on a principle this Court itself has relied on over the course of decades.”[41] On appeal, the Tenth Circuit did not consider whether the state court’s application of the law was reasonable because it held that “no relevant clearly established law existed.”[42] But the Supreme Court emphasized that “[a]t the time of the OCCA’s decision, clearly established law provided that the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.”[43] Therefore, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case to the Court of Appeals[44] to determine the following: “whether a fair-minded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.’”[45]

---

[1] Andrew v. White, 145 S. Ct. 75, 78 (2025).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] White, 145 S. Ct. at 78.

[8] Id.

[9] Id. at 78-79. (“Among other things, the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car.”).

[10] Id. at 79. (“At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had.”).

[11] Id. (“In its closing statement, the prosecution again invoked these themes, including displaying Andrew’s ‘thong underwear’ to the jury, by reminding the jury of Andrew’s alleged affairs during college, and by emphasizing that Andrew ‘had sex on [her husband] over and over and over’ while ‘keeping a boyfriend on the side.’”).

[12] Id.

[13] White, 145 S. Ct. at 79.

[14] Andrew v. State, 164 P.3d 176, 192 (2007).

[15] Id.

[16] White, 145 S. Ct. at 80.

[17] Id.

[18] Id. (citing Andrew, 164 P.3d at 206-07).

[19] White, 145 S. Ct. at 80.

[20] Id. at 78.

[21] Id. at 80.

[22] Id. at 78.

[23] Id. at 80.

[24] 501 U.S. 808, 825 (1991).

[25] White, 145 S. Ct. at 80

[26] Id.

[27] Id.

[28] See 501 U.S. at 825.

[29] White, 145 S. Ct. at 80 (citing 28 U.S.C. §§ 2254(d)(1)-(2)).

[30] Id. (quoting White v. Woodall, 572 U.S. 415, 419 (2014)).

[31] Id. at 81 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).

[32] Id.

[33] Id.

[34] Id.

[35] Payne, 501 U.S. at 825.

[36] White, 145 S. Ct. at 81.

[37] Id.

[38] Id. at 82.

[39] Id.

[40] See generally Romano v. Oklahoma, 512 U.S. 1 (1994); Kansas v. Carr, 577 U.S. 108 (2016).

[41] White, 145 S. Ct. at 83.

[42] Id.

[43] Id.               

[44] Id.

[45] Id. (quoting Payne, 501 U.S. at 825).

Photo Credit: Eric Prisbell, Why the House antitrust case is high stakes for the NCAA, ON3, (Sept. 19, 2023), https://www.on3.com/nil/news/why-the-house-antitrust-lawsuit-is-high-stakes-for-the-ncaa-nil-title-ix/.

Authored by: Barry Hall Billings

Will they be paid? This question about player compensation has buzzed around the world of college athletics for years. The clear answer desired has a possibility of being given this year. This answer begins with a holding in NCAA v. Alston where the U.S. Supreme Court unanimously ruled that the NCAA’s restrictions on education-related benefits for athletes violated antitrust law.[1] Moreover, Justice Brett Kavanaugh’s concurring opinion in Alston further signaled judicial skepticism toward the NCAA’s amateurism model, stating that “the NCAA’s business model would be flatly illegal in almost any other industry in America.”[2]

In 2020, Grant House and a group of student athletes filed a putative class action against the NCAA claiming that the NCAA’s rules violate antitrust law by banning players from benefiting from their name, image, and likeness. [3] Specifically, House and fellow plaintiffs asserted claims for (1) conspiracy to fix prices in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) group boycott or refusal to deal in violation of Section 1 of the Sherman Act; and (3) unjust enrichment.[4] The NCAA’s reasoning for not allowing the player’s use of his own name, image, and likeness has always been to ensure that student athletes are student athletes to preserve the consumer demand for college sports as a distinct product from professional sports.[5]

The NCAA subsequently moved to dismiss House’s claims as they argued (1) the complaint should be barred under the doctrine of stare decisis in light of O’Bannon v. National Collegiate Athletic Ass’n,[6] and (2) the claims of the “Group-Licensing Damages Sub-Class” fail because the sub-class of plaintiffs did not have any publicity rights for the broadcasts, and even if they did, they did not allege an injury to the “Group Licensing Market” that was adjudicated in O’Bannon.[7]

The court held that the plaintiffs had sufficiently alleged that the NCAA’s restrictions on name, image, and likeness compensation constituted the unreasonable restraint of trade under the Sherman Antitrust Act.[8] The court found the allegations were plausible, which emphasized that the NCAA’s rules impose an non-competitive cap on athlete compensation without a legitimate justification.[9] The court further held that the NCAA’s rules could not be exempt from antitrust laws simply because they were tied to amateurism.[10] They reasoned that the NCAA’s business model increasingly resembled that of a professional or commercial enterprise.[11] By Judge Wilken denying the motion to dismiss, the case was also able to proceed as a class action, meaning House could represent all current and former Division I athletes who were denied name, image, and likeness compensation due to NCAA rules.[12]

After Judge Claudia Wilken denied the NCAA’s motion to dismiss,[13] a series of hearings and motions were filed. After over four years, the NCAA finally decided to settle this case for good.[14] In making this settlement, the NCAA agreed to pay out roughly $2.576 billion in back pay to “[a]ll student-athletes who compete on, competed on, or will compete on a Division I athletic team at any time between June 15, 2020 through the end of the Injunctive Relief Settlement Term.”[15] While this amount has been agreed upon, the fairness hearing is set to be heard in the Northern District of California before Judge Wilken to “determine whether to approve certification of the Settlement Classes . . . whether the proposed Settlement of the Lawsuit on the terms and conditions provided for in the Amended Settlement Agreement is fair, reasonable, and adequate to the Settlement Classes and should be approved by the Court,” and whether a final judgment for the approved amount should be entered.[16]

This amount will be paid out over a 10-year period.[17] Moreover, approximately 81% of the damages pool will be paid to Power Five football (SEC, Big-10, Big-12, ACC, and PAC-12, men’s basketball and women’s basketball student-athletes who were on a roster and received athletics aid from June 15, 2016 thru September 15, 2024.[18] The remaining 19% of the damages pool will be available to all student-athletes who can demonstrate that they lost third-party NIL (including video game) opportunities during the class period.[19] Students in the sports other than football, men’s basketball, and women’s basketball, and those who received a partial or full GIA during the 2019-2020 to 2024-2025 school years are eligible to submit a claim for these lost NIL opportunities.[20]

The settlement in House v. NCAA is in a position to create a precedent that will shape the future of NIL litigation in several ways. First, the case highlights the judicial importance  and societal recognition that college athletes are the core piece of a multi-billion dollar industry and are deserving of fair compensation for their contributions.[21] By addressing the antitrust implications of NIL restrictions, this case could influence other former athletes to challenge NCAA policies under both antitrust and labor laws.[22] Second, the settlement could change the trend and promote federal legislation governing NIL compensation.[23] Currently, there is not a uniform federal standard and a vast array of conflicting state laws is the current standard, which has created much confusion and inequities for athletes and institutions alike.[24] If the settlement is approved and it includes a revenue-sharing model or other significant concessions, Congress could potentially be pressured to enact comprehensive NIL legislation.[25] Finally, this settlementis likely to influence the outcome of related cases, such as Johnson v. NCAA.[26] If the settlement in House results in significant financial benefits for athletes, it could be used to strengthen the plaintiffs’ case that they are employees, which would further undermine the NCAA’s amateurism defense.[27]

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[1] See generally Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021).

[2] Id. at 109 (Kavanaugh, J., concurring).

[3] House v. Nat’l Collegiate Athletic Ass’n, 545 F. Supp. 3d 804, 808 (N.D. Cal 2021)

[4] Id. at 810.

[5] See NCAA Bylaws §12.01.2 (revised Aug. 9, 2024).

[6] 802 F.3d 1049 (9th Cir. 2015).

[7] House, 545 F. Supp. 3d at 811.

[8] Id. at 816.

[9] Id.

[10] Id. at 817

[11] Id.

[12] Id.

[13] House, 545 F. Supp. 3dat 820.

[14] In re Coll. Athlete NIL Litig., No. 4:20-CV-03919-CW, 2024 WL 5360139, at *1 (N.D. Cal. Oct. 7, 2024).

[15] Id. at *2.

[16] Id. at *1.

[17] Jason Greco, House vs. NCAA Settlement, Utah Utes, (October 16, 2024), https://utahutes.com/sports/2024/10/16/house-vs-ncaa-settlement.aspx.

[18] Id.

[19] Id.

[20] Id.

[21] Dan Edelman, The Future of College Athlete Compensation, 45 J. Coll. & Univ. L. 123, 130 (2023).

[22] Id.

[23] Dan Murphy, Congress Urged to Act on NIL as State Laws Proliferate, ESPN (Jan. 12, 2024), https://www.espn.com.

[24] Id.

[25] Id.

[26] See Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th 163 (2024).

[27] Id.

Photo Credit: Oleg Abdurashitov, On Cybersecurity Laws – and Their Interpretations, Kaspersky, https://www.kaspersky.com/about/policy-blog/on-cybersecurity-laws (last visited Feb. 24, 2025).

Authored by: Elizabeth Gracie Smith

For people under the age of 50, it can be hard to imagine a world without the internet and consequently, cyber-attacks. The first cybercriminal, 16-year-old Kevin Mitnick, was arrested in 1979, for accessing operating systems at the Digital Equipment Corporation and making copies of the software.[1] The 1980s saw high profile attacks that drew public attention to cyber threats, and the field of cybersecurity began. The development of cybersecurity regulations in the United States has been shaped by the increasing frequency of cyber threats.

Since the United States has no single regulatory cybersecurity framework, there are several laws which govern cybersecurity and privacy practices. These laws are usually tailored to specific industries or sectors. The Sarbanes-Oxley Act (SOX), for example, mandates that publicly traded companies must have robust cybersecurity measures to protect financial data and ensure the accuracy of public financial statements.[2] The Securities and Exchange Commission’s (SEC) Regulation S-P targets financial institutions and requires them to have adequate safeguards to protect consumer financial information.[3]

Another significant law is the Gramm-Leach-Bliley Act (GLBA), which applies to a wide range of financial institutions, including entities such as banks, securities firms, non-bank mortgage lenders, and insurance companies.[4] The GLBA requires organizations to implement comprehensive security programs that include technical, physical and administrative safeguards to protect customers’ sensitive information.[5]

The Federal Trade Commission Act (FTC Act) enforces privacy protections across the United States and requires most businesses to take adequate cybersecurity measures, excluding banks and certain other industries.[6] Similarly, the Health Insurance Portability and Accountability Act (HIPAA) enforces strict security and privacy protocols for healthcare organizations, ensuring sensitive health information is safe.[7] Other regulations like the Defense Federal Acquisition Regulation (DFAR) apply specifically to U.S. Department of Defense contractors,[8] while the Children’s Online Privacy Protection Act (COPPA) protects the privacy of children online.[9]

Initially, cybersecurity laws focused more on protecting financial data, but as technology has advanced, privacy concerns and data protection have drawn more attention. For example, the rise of digital healthcare records required stricter privacy regulations, leading to the creation of HIPAA.[10] As technology continues to advance, the evolving nature of cyber threats may cause lawmakers to rethink this fragmented approach and consider a more unified framework.[11]

The variety of laws that regulate cybersecurity creates compliance challenges for organizations. Businesses operating across multiple states or internationally are especially affected by this patchwork system.[12] Each state may have its own breach notification requirements or cybersecurity mandates, and this inconsistency can make it difficult for businesses to create uniform compliance policies.[13] This complexity increases both the time and cost needed to manage legal requirements, particularly for smaller companies that may lack the resources to stay on top of constantly evolving laws.[14]

State specific laws, such as California’s Consumer Privacy Act (CCPA), create challenges for businesses that operate across state lines.[15] Companies not only must be aware of varying requirements, but also maintain flexibility to adjust their policies based on where they are doing business.[16] For example, a company headquartered in New York might need to comply with the stricter consumer privacy protections of California, which requires them to develop separate compliance strategies for different regions. This patchwork of state and federal laws can lead to inefficiencies and the need for businesses to invest in legal and compliance departments to ensure they do not accidentally violate state-specific regulations.

Varying laws can also create confusion in enforcement. Different states, courts and agencies may interpret the laws differently, leading to inconsistent enforcement and a lack of clarity regarding how different regulations apply in certain circumstances.[17] This inconsistency can undermine efforts to protect consumer privacy and create more risk for businesses that accidentally fail to comply with a specific law.

The cybersecurity regulatory landscape is not static, and recent developments show the importance of data protection. The introduction of bills like the American Data Privacy and Protection Act (ADPPA) in Congress represents a move toward a more cohesive national cybersecurity framework.[18] Although the bill has not passed yet, its presence in legislative discussions further emphasizes the increasing demand for a single, comprehensive framework to protect consumer data, especially as data breach concerns continue to rise.[19]

While there are disadvantages to the lack of a single, overarching cybersecurity law in the United States, there are also some positives. Having multiple laws allows for more specific regulations that directly address the unique needs of different industries.[20] For example, the specific needs of financial institutions are addressed by GLBA,[21] while healthcare organizations are regulated under HIPAA.[22] This sector-specific approach allows the laws to more effectively address the distinct challenges each industry faces.

The flexibility offered by state laws is another positive aspect. States can enact their own legislation based on the concerns and priorities of their residents.[23] For example, CCPA has stringent privacy rules, reflecting the California’s proactive stance on privacy protection.[24] This approach allows room for innovation for individual states and sets higher standards for privacy and security.

As technology continues to evolve, the need for additional laws will emerge, making the current patchwork of cybersecurity laws even more challenging to navigate.

---

[1] Hope Trampski, Kevin Mitnick, sound familiar?, cyberTAP Purdue University (July 16, 2024), https://cyber.tap.purdue.edu/blog/articles/kevin-mitnick-sound-familiar/.

[2] Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204 (2002).

[3] 17 C.F.R. 248.

[4] Gramm-Leach-Bliley Act, Pub. L. No. 106-102 (1999).

[5] See id.

[6] 15 U.S.C § 45.

[7] 45 C.F.R. 160-164.

[8] 48 C.F.R. 252.204-7012.

[9] 16 C.F.R. 312.

[10] 45 C.F.R. 160.

[11] Jessica L. Beyer, et al., The Next Step in Federal Cybersecurity? Considering an NTSB-Style Computer Safety Board, The Henry M. Jackson School of International Studies (August 6, 2018), https://jsis.washington.edu/news/the-next-step-in-federal-cybersecurity-considering-an-ntsb-style-computer-safety-board/ (discussing arguments that a single cybersecurity agency should be created at the federal level).

[12] See Amy Chang & Haiman Wong, Navigating the Complexities of U.S. Cybersecurity Regulation Harmonization, RStreet (June 27, 2024), https://www.rstreet.org/commentary/navigating-the-complexities-of-u-s-cybersecurity-regulation-harmonization/ (“In addition to an ever-evolving cyber threat landscape, organizations face a complex web of overlapping and often inconsistent cybersecurity regulations across federal, state, and local levels.”).

[13] Id.

[14] Id.

[15] Cal. Civ. Code § 1798.100.

[16] A Guide to U.S. Cybersecurity Laws and Compliance, NRI Secure (December 5, 2024), https://www.nri-secure.com/blog/us-cybersecurity-laws-compliance (“Businesses operating across multiple states face challenges due to varying cybersecurity and data privacy laws.”).

[17] See, e.g., Cam Sivesind, Chevron Doctrine Reversal: What’s It Mean for Cybersecurity Regulation?, SecureWorld (July 10, 2024), https://www.secureworld.io/industry-news/chevron-doctrine-cybersecurity-regulation (discussing the roles of courts and agencies in interpreting cybersecurity regulations).

[18] H.R. 8152 117th Cong. (2021-2022).

[19] Id.

[20] See Edward McNicholas and Frances Faircloth, Cybersecurity Laws and Regulations USA 2025, ICLG (July 6, 2024), https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/usa (noting the additional requirements that must be taken by each affected industry).

[21] Gramm-Leach-Bliley Act, Pub. L. No. 106-102 (1999).

[22] 45 C.F.R. Part 160.

[23] See Cal. Civ. Code § 1798.100.

[24] Id.

Photo Credit: Students protest for the right to free speech outside the Supreme Court in Washington, DC, 19 March 2007 (photograph), in Can a school punish a student for online speech off campus?, News Decoder (Oct. 27, 2020), https://news-decoder.com/can-a-school-punish-a-student-for-online-speech-off-campus/.

Authored by: Nadia M. McDonald

In an age dominated by social media, the question of whether public schools have the right to discipline students for off campus online speech has become increasingly significant. This issue was brought to the forefront in the landmark Supreme Court case Mahanoy Area School District v. B.L., which addressed the tension between the First Amendment’s protection of free speech and schools’ authority to regulate student behavior.[1] While the Court ruled that schools have limited authority to regulate off campus speech,[2] many questions remain unanswered.

The First Amendment and Freedom of Speech in Schools

The First Amendment guarantees individuals the right to freedom of speech, a right that extends to students in public schools.[3] However, the Supreme Court has long recognized that student speech is not without limits, particularly when it comes to speech that disrupts the learning environment or violates school rules.[4] In Tinker v. Des Moines Independent Community School District, the Court ruled that students could express their opinions, including through symbolic speech, if it did not “materially and substantially disrupt the work and discipline of the school.”[5] While Tinker set the foundation for regulating student speech within the school, it didn’t address the question of off campus speech. Over the years, lower courts have grappled with how to apply Tinker to social media posts made by students outside of school grounds. In Mahanoy, the Court was tasked with determining whether the same principles apply to social media posts made by students off campus.[6]

Mahanoy Area School District v. B.L.

In 2017, Brandi Levy, a high school student at Mahanoy Area High School in Pennsylvania, posted a Snapchat story expressing frustration about not making the school’s varsity cheerleading team.[7] The post, made off campus at a local convenience store and outside of school hours, included profanity and directed harsh criticism at the school and its cheerleading program.[8] The following day, Levy was suspended from the junior varsity cheerleading team for the upcoming year, for what the school described as “disruptive” behavior which violated the team’s code of conduct.[9] Levy, however, challenged the suspension, claiming it violated her First Amendment right to free speech.[10] The case eventually made its way to the Supreme Court, where the Justices had to decide whether schools had the authority to punish students for speech made off campus that might not directly disrupt school activities.[11]

In an 8-1 decision, the Supreme Court ruled in favor of Brandi Levy, holding that public schools could not discipline students for off campus speech unless it caused a substantial disruption to the school environment.[12] Justice Stephen Breyer, writing for the majority, emphasized that the First Amendment protects a student’s right to express themselves outside of school, even if their speech is vulgar or critical of school activities.[13] The Court acknowledged that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” a principle established in Tinker.[14] However, the Court made it clear that this decision did not give students complete freedom to say anything without consequences.[15] Schools still have the authority to regulate speech that occurs on school property or at school events, as well as speech that disrupts the educational process or infringes on the rights of others.[16] In Levy’s case, her Snapchat post, though inappropriate, did not cause a substantial disruption to the school’s operations, and therefore, the school’s disciplinary action did violate her First Amendment rights.[17]

The Impact of Social Media on Student Speech

The rise of social media has fundamentally changed how students express themselves and how their speech can be regulated. Platforms like Snapchat and Instagram give students an unprecedented ability to communicate with their peers and the public at large, often outside the boundaries of traditional school environments. This shift has blurred the lines between what constitutes “on campus” and “off campus” speech.[18]

Social media posts, unlike traditional forms of speech, can be far reaching and can easily be shared, liked, or commented on by a large audience at all times and in any place.[19] The digital age has made it much more difficult to draw a clear line between student speech that is private and that which affects the school environment.[20] Even when speech occurs off campus, it can have ripple effects on the school, its students, and its staff. For example, a social media post that goes viral could create a climate of division within the school, leading to potential disruptions. The Court in Mahanoy recognized these complexities but reaffirmed the importance of student expression.[21] In doing so, the Justices underscored that schools should not overreach in attempting to control students’ online behavior unless there is a direct and significant impact on the school environment.[22]

Potential Ambiguities and Unanswered Questions

While the Mahanoy decision provided clarity in some respects, it also left several key issues unresolved. One of the primary questions left open by the ruling is how schools should handle off campus speech that is less overtly disruptive but still has the potential to cause harm or disruption. The Court’s opinion did not offer a comprehensive test for determining when off campus speech crosses the line from protected expression to disruptive behavior. For example, what happens if a student’s social media post includes threats, bullying, or harassment? While these types of posts are clearly disruptive, they may still fall outside the scope of school grounds.[23]

The Court also did not address the issue of cyberbullying, which is a significant concern for schools nationwide.[24] Cyberbullying can often take place off campus and affect students’ mental and emotional well-being within the school, and while Mahanoy provides a baseline for protecting students’ free speech rights, it leaves open the question of how schools can address harmful behavior without overstepping their authority.

Implications for Schools, Students, and the Legal Landscape

The Mahanoy decision has significant implications for both students and schools. For students, the ruling affirms that they have the right to express themselves online, even if their speech is critical of the school or its activities.[25] This ensures that students have the freedom to express their opinions and frustrations without fear of retaliation, a fundamental aspect of the First Amendment.[26] For schools, the decision sets limits on their authority to regulate online speech.[27] Schools can no longer impose discipline on students simply because their off campus speech is offensive or critical of the institution.[28] However, they still retain the ability to intervene if the speech creates a substantial disruption to the school’s operations or violates the rights of others.[29]

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[1] Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). 

[2] Id. at 186-87.

[3] U.S. Const. amend. I.

[4] Mahanoy, 594 U.S. at 187.

[5] 393 U.S. 503, 513 (1969).

[6] Mahanoy, 594 U.S at 186-87.

[7] Id. at 180.

[8] Id.

[9] Id. at 185.

[10] Id.

[11] Id. at 180.

[12] Mahanoy, 594 U.S. at 186 (citing Brown v. Entm’t Merchs. Assn., 564 U.S. 786, 794 (2011) (“But we have also made clear that courts must apply the First Amendment ‘in light of the special characteristics of the school environment.’”).

[13] Id. at 190-91.

[14] Id. at 187 (citing Tinker, 393 U.S. at 506).

[15] Id. at 186 (citing Tinker, 393 U.S. at 513) (“[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”).

[16] Id. at 188.

[17] Id. at 189.

[18] Mahanoy, 594 U.S. at 190-91.

[19] Monica Miecznikowski, Left for the Future, Solved in the Past: A Test for School’s Ability to Regulate Student Speech Off-Campus, Vanderbilt JETLaw Blog (February 2, 2024), https://www.vanderbilt.edu/jetlaw/2024/02/02/left-for-the-future-solved-in-the-past-a-test-for-schools-ability-to-regulate-student-speech-off-campus/ (“Courts have found that schools generally have the right to regulate student’s speech while they are on campus. However, with the advancement of technology, speech is no longer tethered to a time or place. A person can type an opinion and near instantly that view can be heard across the country.”).

[20] Mahanoy, 594 U.S. at 189-90.

[21] Id. at 190.

[22] Id. at 180 (“Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.”).

[23] Id. at 209 (“Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.”).

[24] Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, Pew Research Center,  https://www.pewresearch.org/internet/2018/09/27/a-majority-of-teens-have-experienced-some-form-of-cyberbullying/ (Sep. 27, 2018).

[25] Mahanoy, 594 U.S. at 192 (“Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school’s interest in teaching good manners is not sufficient, in this case, to overcome B. L.’s interest in free expression.”)

[26] Id. at 191.

[27] Id. at 190.

[28] Id. at 180.

[29] Id. at 181.

Photo Credit: Karen Cullinane, Did San Francisco Awaken the Ghost of the Chevron Doctrine? The Supreme Court Weighs In, Goldberg Segalla (Oct. 24, 2024), https://environmentallawmonitor.com/clean-water-act/did-san-francisco-awaken-the-ghost-of-the-chevron-doctrine-the-supreme-court-weighs-in/.

Authored by: Naomi Baltins

On March 4, 2025, the U.S. Supreme Court issued its opinion in City of San Francisco v. Environmental Protection Agency, limiting the EPA’s ability to enforce broad water quality mandates through its permitting process.[1] The opinion, authored by Justice Alito, reversed a Ninth Circuit ruling that had upheld the EPA’s ability to include “end-result” requirements in discharge permits.[2] These were provisions that held municipalities accountable for water quality standards without specifying the necessary compliance measures.[3]

Under the Clean Water Act (CWA), the EPA regulates pollutant discharges into U.S. waters through the National Pollutant Discharge Elimination System (NPDES).[4] Traditionally, these permits have included effluent limitations, which restrict the amount and type of pollutants an entity may discharge.[5] But in 2019, the EPA took things a step further by including broader  “end-result” provisions in San Francisco’s NPDES permit for its Oceanside wastewater treatment facility, prohibiting any discharge that contributed to violations of water quality standards.[6] San Francisco challenged these provisions, arguing that they exceeded the EPA’s authority under the CWA.[7]

Before reaching the Supreme Court, the Ninth Circuit upheld the EPA’s authority to impose end-result requirements in NPDES permits.[8] The appellate court reasoned that Section 1311(b)(1)(C) of the CWA allows the EPA to impose “any” limitations necessary to meet water quality standards, including requirements that do not explicitly state the steps permittees must take.[9] The Ninth Circuit found that these provisions were consistent with the EPA’s longstanding regulatory framework and necessary to ensure compliance with water quality standards.[10] However, the dissent warned that such an interpretation effectively forced cities to meet undefined environmental goals, potentially overstepping the EPA’s statutory limits.[11]

The Court held that the CWA does not authorize the EPA to impose “end-result” provisions in permits.[12] The Court reasoned that holding municipalities accountable for vague, undefined water quality outcomes creates uncertainty and undermines the law’s “permit shield” provision, which protects permit holders from liability if they adhere to permit conditions.[13]

This decision represents a shift in the balance of regulatory power, signaling that the EPA must set clear, enforceable guidelines rather than broad, outcome-based mandates.[14] This ruling is expected to impact wastewater treatment facilities nationwide, especially in cities with combined sewer systems that struggle with overflows during heavy rainfall, like the one in San Francisco.[15] Without the ability to enforce broad water quality-based permit conditions, the EPA may need to rethink its regulatory strategy, possible setting more specific pollutant limits or exploring alternative compliance methods.

Reactions to the ruling are likely to be split. Environmental advocates may see it as a weakening of water quality protections, while industry groups and municipalities could view it as a necessary check on federal overreach. This case reflects the Supreme Court’s growing skepticism toward the power of federal agencies, a trend that could extend beyond environmental regulation.[16]

The decision comes at a time when environmental policy is a hot-button issue in U.S. politics. The Biden administration pushed for stronger environmental protections against pollution and climate change, often clashing with states and industries that favor deregulation.[17] Meanwhile, conservative legal efforts to limit agency power have gained traction, with the Supreme Court increasingly reining in federal agencies like the EPA, SEC, and FTC.[18]

This ruling fits within a broader pattern of judicial skepticism toward expansive administrative power, echoing recent decisions that challenge the scope of agencies like the EPA, the SEC, and the FTC.[19] This case emphasizes the ongoing debate over federalism and the appropriate balance between state and federal control over environmental policy.

Beyond the EPA, other federal regulations may also be on the chopping block as the Court continues to limit agency authority. Challenges to the Clean Air Act, particularly regarding the EPA’s power to regulate greenhouse gas emissions, could follow. Financial and consumer protection agencies such as the SEC and FTC are seeing increasing restrictions on their ability to regulate corporate practices.[20] As these legal challenges unfold, the extent to which federal agencies can enforce regulatory mandates remains uncertain, leaving future environmental and administrative policies in a state of instability. With regulatory priorities shifting from each presidential administration, the future of environmental oversight remains uncertain. Both industry stakeholders and environmental groups will closely monitor how this ruling impacts legislative initiatives and regulatory policies in the years ahead. As regulatory agencies and local governments adapt to this evolving legal framework, this case is poised to influence future discussions on federal environmental oversight and the scope of agency authority in implementing statutory mandates.

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[1] City of San Francisco v. Env’t Prot. Agency, 145 S. Ct. 704, 707 (2025).

[2] Id. at 711.

[3] Id.

[4] Id. at 711-12.

[5] Id. at 712.

[6] Id. at 713.  

[7] City of San Francisco, 145 S. Ct at 713.

[8] Id.; see also City of San Francisco v. U.S. Env’t Prot. Agency, 75 F.4th 1074 (9th Cir. 2023), cert. granted sub nom. City of San Francisco v. Env’t Prot. Agency, 144 S. Ct. 2578 (2024), and rev’d and remanded sub nom. City of San Francisco v. Env’t Prot. Agency, 145 S. Ct. 704 (2025).

[9] City of San Francisco, 145 S. Ct. at 713.

[10] City of San Francisco, 75 F.4th at 1090.

[11] Id. at 1107 (Collins, J., dissenting).

[12] City of San Francisco v. EPA, 145 S. Ct. at 720.

[13] Id. at 718.

[14] Id. at 720.

[15] Pamela King & Miranda Willson, 5 things to know about San Francisco’s Supreme Court fight against EPA, POLITICO (Oct. 15, 2024) https://www.eenews.net/articles/5-things-to-know-about-san-franciscos-supreme-court-fight-against-epa/.

[16] Michael Smith et al., Supreme Court Makes Waves In San Francisco Ruling, Brownstein Client Alert (March 11, 2025) https://www.bhfs.com/insights/alerts-articles/2025/supreme-court-makes-waves-in-san-francisco-ruling; Lisa John Rogers, What a recent Supreme Court ruling could mean for the future of the Clean Water Act, Great Lakes Now (March 7, 2025) https://www.greatlakesnow.org/2025/03/what-a-recent-supreme-court-ruling-could-mean-for-the-future-of-the-clean-water-act/.

[17] See, e.g., Exec. Order No. 14,057, 86 Fed. Reg. 70,935 (Dec. 13, 2021) (projecting for a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050); Press Release, FACT SHEET: President Biden Protects Atlantic and Pacific Coasts from Offshore Oil and Gas Drilling (Jan. 6, 2025) https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2025/01/06/fact-sheet-president-biden-protects-atlantic-and-pacific-coasts-from-offshore-oil-and-gas-drilling/.

[18] Loper Bright Enters. v. Raimondo, 603 U.S. 369, 377 (2024) (overruling the Chevron doctrine); SEC v. Jarkesy, 603 U.S. 109, 115 (2025) (stripping the SEC of its ability to use in-house tribunals when seeking civil penalties).

[19] AMG Cap. Mgmt., LLC. v. FTC, 593 U.S. 67, 70 (2021).

[20] Nowell D. Bamberger et. al., Consumer Protection Compliance Remains Crucial in Spite of CFPB Work Stoppage, Cleary Gottlieb (Feb. 20, 2025) https://www.clearyenforcementwatch.com/2025/02/consumer-protection-compliance-remains-crucial-in-spite-of-cfpb-work-stoppage/.

Photo Credit: Lee A. O’Connor, Understanding the Categorical and Modified Categorical Tests, The Federal Lawyer (Dec. 2010), https://www.fedbar.org/wp-content/uploads/2010/11/categoricalmodified-pdf-1.pdf.

Authored by: Elizabeth Mojica

The Immigration and Nationality Act (“INA”) outlines specific criminal offenses that, if a non-citizen is convicted of them, may result in their removal from the United States.[1] Qualifying criminal offenses include crimes of moral turpitude and aggravated felonies as well as various other crimes.[2] Issues often arise when a conviction based on state law is the grounds for a federal order of removal.[3] Courts must then determine whether the state conviction sufficiently meets the requirements outlined by the INA to support the grounds for removal from the United States.[4] This determination is typically made using the categorical approach.[5]

The categorical approach follows an element by element comparison to determine whether the state crime a non-citizen is convicted of sufficiently meets those of the federal offense.[6] In cases regarding offenses without a specified federal definition, generic definitions which may be derived from relevant federal statutes, case law, dictionaries, or the INA itself are used.[7] The comparison is solely between the elements of the state crime and the generic definition.[8] Therefore, the underlying facts and circumstances which led to the non-citizen’s conviction are disregarded.[9] However, when a conviction is based on a state statute including both removable and non-removable offenses then a modified categorical approach is applied.[10] The modified categorical approach reviews the record to determine whether the conviction supports removal.[11] Both the categorical approach and the modified categorical approach have occasionally called for a comparison with the state definitions at the time of conviction.[12] The question remains, however, as to whether the federal definition should be that which was in place at the time of conviction or that which was in place at the time of removal proceedings.[13]

The Board of Immigration Appeals (“BIA”) recently addressed this question in Matter of Jonalson, a case regarding a non-citizen’s state conviction based on a controlled substance offense for possession of marijuana.[14]  The non-citizen filed a motion to terminate removal proceedings arguing the state definition of marijuana was over-broad when compared to the federal definition and therefore insufficient to constitute grounds for removal.[15] The immigration judge denied the non-citizen’s motion finding because at the time of the non-citizen’s conviction, the state defined marijuana more narrowly than federal law.[16] Once removal charges were adjudicated, however, the state defined marijuana more broadly.[17] The BIA reviewed de novo, applying the categorical approach, whether the non-citizen’s state conviction qualified for removal.[18]

As the BIA noted, when the issue is not disputed there is a presumption that the relevant comparison is the definitions in place at the time of conviction.[19] In addressing the dispute, the BIA referred to Second, Third, Ninth, and Eleventh Circuits’ rejections of the “time-of-removal argument in favor of using the time of conviction.” [20] The BIA’s decision is focused narrowly on the statutory interpretation issue created by the discrepancy and is an effort to promote certainty and predictability in future cases.[21] However, while Matter of Jonalson reflects the findings of four United States Courts of Appeals, others like the Fourth Circuit have differed.[22] Ultimately, the Second, Third, Ninth, and Eleventh Circuits will continue to rely on the time-of-conviction definitions. However, Matter of Jonalson arose in the First Circuit, which has not addressed the issue, and BIA decisions are not binding on circuit courts of appeals. Nonetheless, as the BIA noted, other circuits have also not addressed the issue. Therefore, while it is possible some circuits may follow suit to promote uniformity, it is likely others will continue to rely on the time of removal definitions which will create a circuit split the United States Supreme Court will need to address.

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[1] See 8 U.S.C. § 1227(a) (“Any [non-citizen] . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the [non-citizen] is within one or more of the following classes of deportable [non-citizens.”); 8 U.S.C. § 1227(a)(2) (listing various deportable offenses for non-citizens).

[2] Id.

[3] Salinas v. Bondi, 131 F.4th 840, 843 (8th Cir. 2025) (challenging a removal order based on interpretations of state and federal definitions of marijuana); Rashid v. Mukasey, 531 F.3d 438, 447 (6th Cir. 2008) (applying the categorical approach to determine whether an offense constitutes an aggravated felony to qualify removal); Jaggernauth v. U.S. Att’y Gen. 432 F.3d 1346, 1353 (11th Cir. 2005) (determining whether a Florida conviction “constitutes a theft offense for purposes of the aggravated felony definition” to support grounds for removal).

[4] Ndungu v. Att’y Gen. U.S., No. 20-2562 (3d Cir. Jan. 13, 2025) (en banc) (illustrating the challenge of matching a state crime definition to the federal interpretation of crimes involving moral turpitude to sufficiently meet the grounds to support a removal order). See Crim-Imm Case Law Updates 2024, National Immigration Project (Dec. 16, 2024), https://nipnlg.org/sites/default/files/2024-12/2024_crim-imm-case-law-updates.pdf (outlining court updates from the BIA’s and the United States Courts of Appeals’ findings regarding the applications of the categorical approach to various state statutes).

[5] Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.”); Salinas, 131 F.4th at 843 (explaining removal orders for state drug convictions “must use the categorical approach”); Bazan-Reyes v. I.N.S., 256 F.3d 600, 606 (7th Cir. 2001) (explaining the use of the categorical approach in matching state statutes to federal law).  

[6] Salinas, 131 F.4th at 843; Soliman v. Gonzales, 419 F.3d 276, 279 (4th Cir. 2005) (explaining the application of the categorical approach in determining whether a conviction meets the grounds for removal).

[7] Moncrieffe, 569 U.S. at 190 (explaining the generic federal definitions are those which are “viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison”); Johnson v. U.S., 559 U.S. 133, 134 (2010) (stating the court will give a phrase its ordinary meaning where the federal statute has not provided a definition); see Office of the General Counsel, Categorical Approach Primer (2024) (explaining the various sources used to form the generic definition).

[8] Descamps v. U.S., 570 U.S. 254, 261 (2013) (“If the relevant statute has the same elements as the ‘generic’. . ., then the prior conviction can serve as . . . predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily. . . guilty of all the [generic crime’s] elements.’”).

[9] Moncrieffe, 569 U.S. at 191 (explaining the INA looks only at the offense the noncitizen is convicted of not the conduct which led to the conviction).

[10] Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1760 (2011).

[11] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (explaining the modified categorical approach “permits the sentencing court ‘to go beyond the mere fact of conviction’); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir. 2007) (stating the modified categorical approach may look at “charging papers and jury instructions”).

[12] See Taylor v. U. S., 495, 576 (1990) (stating the definitions compared are those which are “now used in most States’ criminal codes”); Gonzalez, 549 U.S. at 183 (stating “[t]he term ‘theft offense’ in 8 U.S.C. § 1101(a)(43)(G) includes the crime of ‘aiding and abetting’ a theft offense, because the generic sense in which the term ‘theft’ is now used in state and federal law covers such aiders and abettors as well as principals.”).

[13] See Salinas, 131 F.4th at 845 (highlighting the uncertainty created by a time of removal review under the categorical approach); Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025) (supporting a time of conviction review under the categorical approach).

[14]Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025).

[15] Id. at 21.

[16]Id.

[17] Id.

[18]Id..

[19]Id. at 22.

[20] Id. at 22.

[21] Jonalson, 29 I&N Dec. 20, 22 (B.I.A. 2025).

[22] See Kelsey Mellan, Fourth Circuit Upholds Removal Order and Sentencing Determination, Wake Forest L. Rev. Blog (Jan. 26), https://www.wakeforestlawreview.com/2017/01/fourth-circuit-upholds-immigration-removal-and-sentence-as-constitutional/.

Photo Credit: Justice at JetBlue, JetBlue Crewmembers Deserve More from Northeast Alliance, IAMAW 141(Feb. 28, 2022), https://iam141.org/jetblue-crewmembers-deserve-more-from-northeast-alliance/.

Authored by: Cody P. Csulak

On March 3, 2025, American Airlines officially filed a petition for a writ of certiorari to the U.S. Supreme Court in order to have a First Circuit Court of Appeals decision reversed regarding its Northeast joint venture with JetBlue Airways.[1] In their petition, American Airlines argues that the First Circuit decision “invalidated a joint venture . . . that increased marketwide competition among all airlines in the congested Northeast without any price increases solely because it reduced competition between the two joint venture partners.”[2] They further argued the First Circuit’s holding “flouts basic antitrust principles, creates two circuit splits, and threatens to wreak havoc on productive collaborations of all shapes and sizes.”[3]

American Airlines’ petition comes as no surprise, since the joint venture between them and JetBlue Airways was announced in July 2020 and was later approved by the U.S. Transportation Department at the end of Trump’s first administration in January 2021.[4] Months later the Department of Justice, then under President Joe Biden, along with six states, filed suit in an effort to “unwind the deal” and argued the joint venture was a “de facto merger” that “remove[d] incentives for [the two airlines] to compete.”[5] The primary allegation was that the joint venture “violated section one of the Sherman Act, which prohibits ‘contract[s], combination[s] . . ., or [conspiracies], in restraint of trade or commerce.’”[6]

Under the Northeast Alliance (“NEA”) “the carriers effectively agreed to operate as a single airline with respect to most of their routes in and out of Boston and New York City.”[7] The optics surrounding the NEA were under suspicion, as American is “arguably the largest airline in the world and one of four airlines that collectively control[s] around eighty percent of domestic air travel,” while JetBlue is “the sixth largest airline in the U.S.”[8] Prior to entering into the NEA, American and JetBlue were leading competitors in the Northeast and would react to each other regarding “any fare or schedule change by the other carrier in the same market.”[9] With the active competition, both airlines were experiencing limits on access to gates, as well as limitations on their abilities to operate at the airports in the Northeast with the routes they could offer.[10]

This competition led American and JetBlue to enter into the NEA, as American had done a similar joint venture with Alaska Airlines on the West Coast that led to positive results.[11] The only difference between the two agreements was that American and Alaska were “not direct competitors prior to the WCIA, which instead was meant to leverage their complementary networks.”[12] However, in July 2020, the NEA was established, and it included “’codesharing, schedule coordination, revenue sharing, reciprocal loyalty benefits, and joint corporate customer benefits.”[13] In practice the NEA provided an opportunity for both airlines to “pool airport infrastructure, including slots and gates.”[14]

The DOJ’s lawsuit resulted in a month-long bench trial, which included “testimony by two dozen witnesses, most of whom were either executives of the defendants or experts paid for their testimony by one side or the other.”[15] The District Court, after digesting all the evidence, determined that the NEA violated the Sherman Act, and therefore was “PERMANENTLY ENJOINED.”[16] The injunction ordered both airlines to “cease all coordination of schedules, routes, or any effort to allocate markets,” as well as prohibiting them “from entering into any arrangement substantially similar to the NEA.”[17] The rationale behind the injunction was explained by Judge Sorokin, who stated that “[t]he NEA, operating as it was designed and intended by American and JetBlue, substantially diminishe[d] competition in the domestic market for air travel.”[18] Explaining further, Sorokin stated that American and JetBlue “replac[ed] full-throated competition with broad cooperation.”[19] After the injunction was entered JetBlue exited the NEA, which then left American as the only remaining defendant in the action.[20]

This decision by the district court was viewed as “a victory for President Joe Biden’s administration, [who had] taken a hard line on consolidation and tie-ups in the aviation industry.”[21] Merrick Garland, who was the U.S. Attorney General at the time, stated the decision was “a win for Americans who rely on competition between airlines to travel affordably.”[22] American then appealed to the United States Court of Appeals for the First Circuit.[23]

On appeal, American’s primary argument was that there was “legal error” in “the district court’s rule-of-reason analysis.”[24] Primarily, American argued that “joint ventures like the NEA are ‘not usually unlawful,’” so the district court “erroneously subjected the NEA to “quick look condemnation.”[25] The First Circuit Court of Appeals found American’s argument “unavailing on multiple levels.”[26] They started their analysis explaining that just because the NEA is a joint venture does not mean it is subjected to a different level of antitrust scrutiny or a different analysis, as the analysis of a joint venture is “aimed at substance rather than form.”[27] Looking further, the rule-of-reason analysis is a “’fact-specific assessment’ that varies based on ‘the circumstances, details, and logic of a restraint.’”[28]

In reaction to American’s claim that the district court took a “quick look,” the Court stated that the “NEA merited a less ‘deep and searching analysis,’” as the trial was a month long, which allowed the court to see the NEA’s effects on competition.[29]

The First Circuit Court of Appeals additionally disagreed with American’s argument “that the district court unlawfully treated the NEA’s empirical effects on output on price as immaterial.”[30] They had multiple reasons to disagree with American, since the NEA did have negative effects on the market, but primarily that American did not argue that there was error in the district court’s finding that the NEA “led to decreased capacity, lower frequencies, or reduced consumer choices on multiple routes, including some that are heavily traveled.”[31] Despite this, American continued to argue that the NEA resulted in “increased capacity in the form of ‘more flights, more seats, more routes, shorter connections, better frequent flyer benefits, and more choices.’”[32] The only issue with their contention was that the district court had “expressly rejected as unreliable” the evidence that American offered in support of their claims.[33]

The First Circuit Court of Appeals further backed up their support of the district court decision by explaining that the “NEA’s market allocation resides near the anticompetitive end of the spectrum” and that the district court decision “rests on stable footing.”[34] Overall, American lost on appeal, as the First Circuit explained that “an agreement between two powerful competitors sharing revenues and divvying up highly concentrated markets” is violative of the Sherman Act.[35]

With Trump back in office, American appealed to the U.S. Supreme Court in an effort to have the First Circuit decision reversed.[36] American’s primary argument is that the NEA was “designed to increase market-wide competition among all airlines” as well as “expand customer options in the Northeast.”[37] Since American is one of three “global network carriers” operating in the United States, along with Delta Airlines and United Airlines, their stated goal with the NEA was to create “a more formidable competitor in the region.”[38] It appears as if American is throwing a “hail mary” with the hopes that “the arrival of the Trump administration could set American’s petition up for more success.”[39]            

Overall, what happens with American’s appeal to the U.S. Supreme Court remains to be seen, but if taken up by the Court their decision will demonstrate the effects of the Executive on appeals, as well as how the Department of Justice operates under different Presidents.

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[1] Nate Raymond & David Shepardson, American Airlines asks US Supreme Court to reverse ruling barring JetBlue alliance, Thomson Reuters (March 3, 2025, 4:58 PM).

[2] Petition for Writ of Certiorari, at 2, Am. Airlines Grp. Inc. v. U.S, 121 F.4th 209 (1st Cir. 2024) (No. 24-938).

[3] Id.

[4] Raymond & Shepardson, supra note 1.

[5] Diane Bartz & David Shepardson, American and JetBlue airlines must end alliance, US judge rules, Thomson Reuters (May 19, 2023, 7:23 PM).

[6] United States v. Am. Airlines Grp. Inc., 121 F.4th 209, 218 (1st Cir. 2024) (quoting 15 U.S.C. § 1).

[7] Id. at 215.

[8] Id. (quoting U.S. v. Am. Airlines Grp. Inc., 675 F. Supp. 3d 65, 73 (D. Mass. 2023)).

[9] Id. at 215-16 (quoting Am. Airlines Grp. Inc., 675 F. Supp. 3d at 77, 80).

[10] Id. at 216.

[11] Id.

[12] Am. Airlines Grp. Inc., 121 F.4^th at216.

[13] Id. at 217 (quoting Am. Airlines Grp. Inc., 675 F. Supp. 3d at 84).

[14] Id. at 217 (quoting Am. Airlines Grp. Inc., 675 F. Supp. 3d at 85).

[15] Am. Airlines Grp. Inc., 675 F. Supp. 3d at 74.

[16] Id. at 128.

[17] Am. Airlines Grp. Inc., 121 F.4th at 221.

[18] Am. Airlines Grp. Inc., 675 F. Supp. 3d at 128.

[19] Id.

[20] Am. Airlines Grp. Inc., 121 F.4th at 221.

[21] Bartz & Shepardson, supra note 5.

[22] Id.

[23] See Am. Airlines Grp. Inc., 121 F.4th at 215.

[24] See id. at 221.

[25] Id. (quoting Broad Music, Inc. v. Columbia Broad. Sys. Inc., 441 U.S. 1, 23).

[26] Id.

[27] Id. at 221-22 (quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 760).

[28] Id. at 222 (quoting Ohio v. Am. Express Co., 585 U.S. 529, 541; Cal. Dental Ass’n v. FTC, 526 U.S. 756, 781).

[29] Am. Airlines Grp. Inc., 121 F.4that 222 (quoting Am. Airlines Grp., 675 F. Supp. 3d at 112).

[30] Id.

[31] Id. (quoting Am. Airlines Grp., 675 F. Supp. 3d at 92).

[32] Id. at 223.

[33] Id.

[34] Am. Airlines Grp., 121 F.4th at 224.

[35] Id. at 227.

[36] Raymond & Shepardson, supra note 1.

[37] Id.

[38] Am. Airlines Grp., 121 F.4th at 215; Cudahy, Sean Cudahy, American Airlines petitions Supreme Court to reverse ruling on Northeast Alliance with JetBlue, The Points Guy (March 5, 2025).

[39] Cudahy, supra note 38.

Photo Credit: Jason Silva, What is the Role of a Digital Forensics Expert Witness?, Cornerstone Discovery (Sep. 27, 2016), https://cornerstonediscovery.com/what-is-the-role-of-a-digital-forensics-expert-witness/

Authored by: James David Greene III

Rule 704(b) of the Federal Rules of Evidence eliminates an expert witness from being able to “state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged[.]”[1] In Diaz v. United States, the court took on the issue of whether an expert witness could testify to a group of people’s mental state other than the defendant in conformity to Rule 704(b).[2] The Court’s holding will impact the future of expert witness’s ability to testify and strategy used by prosecutors in establishing the necessary mental elements of a charged offense.

In Diaz, a United States citizen, Delilah Diaz, was arrested while trying to cross the United States border at a port of entry from Mexico.[3] When Mrs. Diaz got to the port of entry, she was asked to role her window down by a border patrol agent.[4] The agent heard what he described as a “crunch-like” sound coming from inside the door when the window was rolled down.[5] This resulted in the agent performing a series of binary searches on the vehicle, which indicated the presence of narcotics in the door panels of the car.[6] The agents found fifty-six packages of methamphetamine weighing approximately fifty-four pounds with an estimated street value of $368,550.[7] Diaz denied knowing anything about the drugs and told agents she was driving her boyfriend’s car, whom she had only met “two, three times tops.”[8]

Diaz was charged with “importing methamphetamine in violation of 21 U.S.C. §§ 952 and 960” which require her to have “knowingly” transported the drugs.[9] At trial, Diaz claimed she was a “blind mule”[10] and, therefore, could not be convicted under the statute with which she was charged.[11] The government called Special Agent Andrew Flood as an expert witness in the field of “Mexican drug-trafficking organizations.”[12] Agent Flood planned to testify that Mexican drug traffickers “generally do not entrust large quantities of drugs to people who are unaware they are transporting them.”[13] Diaz, of course, objected to this testimony arguing that it violated Rule 704(b).[14] She argued that Agent Flood could not testify that anyone who possessed drugs while crossing the border knew they possessed the drugs because this would include him saying that she had a necessary mental condition for the crime in violation of the rule.[15] The District Court judge ruled that Agent Flood could not testify that all drug mules know they have drugs, but only that most drug mules know they are in possession of drugs.[16] Diaz was subsequently convicted and sentenced to eighty-four months in prison.[17]

The Court held that Agent Flood’s testimony did not violate Rule 704(b) because he testified that “most” drug mules know they have drugs on them, not all.[18] Justice Thomas explained that Agent Flood only testified a majority of drug mules know they have drugs, thereby leaving open the possibility that Diaz was not a part of the majority.[19] The jury was still left with the question: “Is Diaz like the majority of couriers? Or, is Diaz one of the less-numerous-but-still-existent couriers who unwittingly transport drugs?”[20] Therefore, the jury was left with the ultimate question of whether Diaz had the required state of mind and Agent Flood’s testimony did not violate Rule 704(b).[21]

The practical impacts brought by the Court’s ruling in Diaz can be seen from various sides of the issue. First, the Court’s decision will likely embolden the government to call expert witnesses for every criminal case where a charge requires a mental state instead of relying on evidence that requires the jury to infer mental state. Justice Gorsuch argues this as an unfavorable consequence in his dissenting opinion.[22] He points out that the government chose the type of evidence to put forward in establishing the mental state requirement by calling Agent Flood as an expert witness.[23] The government had plenty of other evidence to suggest that Diaz was aware of the drugs, but they chose not to use those available means.[24] Instead, the government relied on expert testimony about what the majority of drug mules know. [25]

The consequences can be seen clearly from a hypothetical. Suppose a man named George is indicted for purchasing a stolen airplane that had been flown from Oregon to Florida in violation of federal law.[26] To be found guilty, the government would have to prove George knew the plane was stolen when he acquired it.[27] George contends at trial that he had no idea the plane was stolen because he relied on an airplane broker to purchase the plane. The government found text messages, phone calls, and emails showing George knew the plane was stolen and was excited to be able to get such a great deal. However, instead of presenting this evidence to the jury to show George knew the plane was stolen, the government calls their own FBI agent to say in his experience, “Most people buying stolen planes know they are buying stolen planes.” This style of proving the mental requirement may seem to some as lazy and, as Justice Gorsuch argues, is not within the history of the American “commitment” to the mens rea requirement.[28]

The second, and “other side of the coin,” consequence may be seen from the same hypothetical with slightly modified facts. The benefit of this ruling is that the government is provided a remedy if they find themselves with little to no admissible evidence of the mens rea requirement. Suppose the same hypothetical occurs, but the government does not have any of the text messages, phone calls, or emails detailing George’s knowledge that the plane is stolen. Instead, the government has text messages between George and his wife discussing how he is about to “buy this stolen plane for pennies on the dollar.” Naturally, when the government calls George’s wife to testify, she invokes spousal privilege, and the government has nothing to go off. They know that George knew the plane was stolen, but do not have an admissible way to prove it. Under Diaz, the government may call an expert to testify that “most people in George’s shoes” know they are buying a stolen plane.

The Court’s recognition that Rule 704(b) is a narrow exception to Rule 704(a) results in more options for the government when tasked with proving a defendant’s requisite mental state. This development is likely to lead to a more robust approach by government prosecutors to show juries the likelihood a defendant violated the law. Ultimately, Diaz’s holding strengthened the government by allowing them discretion in how to prove their case.

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[1] Fed. R. Evid. 704(b).

[2] 602 U.S. 526 (2024).

[3] Id. at 528.

[4] Id.

[5] Id.

[6] Id. at 529.

[7] Id.

[8] Diaz, 602 U.S. at 529.  

[9] Id.

[10] See Walter Gonclaves, Busted at the Border: Duress and Blind Mule Defenses in Border-Crossing Cases, The Champion, Feb. 2018, at 46 (defining a blind mule as “a person used by criminals to transport drugs who does not know he is carrying them”).

[11] Diaz, 602 U.S. at 529.

[12] Id. at 530.

[13] Id.

[14] Id.

[15] Id.

[16] Id. (emphasis added).

[17] Diaz, 602 U.S.at 531.

[18] Id. at 536.

[19] See id. (“Here, by contrast, Agent Flood asserted that Diaz was part of a group of persons that may or may not have a particular mental state.”).

[20] Id.

[21] Id.

[22] Id. at 550 (Gorsuch, J., dissenting) (“Yes, proving a defendant’s mental state at trial can require work. Normally, it will require the government to resort to circumstantial evidence and inference. After all, defendants in life do not confess their inner thoughts on the stand nearly as often as they do in courtroom dramas. But there is nothing new about any of that.”).

[23] Diaz, 602 U.S. at 551.

[24] Id. at 550 (discussing that the government had the following evidence to argue Diaz knew she was in possession of the drugs: the 54 pounds of drugs were worth $360,000, she has numerous holes in her story, multiple cell phones were in the car, one of which was locked, and she had no access to it).

[25] Id. at 551.

[26] See 18 U.S.C. § 2313(a) (“Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor vehicle, vessel, or aircraft, which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, shall be fined under this title or imprisoned not more than 10 years, or both.”).

[27] Id.

[28] See Diaz, 602 U.S. at 552 (Gorsuch, J., dissenting) (“None of this serves our criminal justice system well . . . Allowing into our proceedings speculative guesswork about a defendant’s state of mind diminishes the seriousness due them . . . It undermines our historic commitment that mens rea is a necessary component of every serious crime by turning the inquiry into a defendant’s mental state from an exacting one guided by hard facts and reasonable inferences into a competing game of ‘I say so.’”).

Photo Credit: Mario Conti, The consumer experience, Mario Conti (Mar. 17, 2017), http://www.marioconti.com/the-consumer-experience/.

Authored by: Carrye Ann Rainer

On March 21, 2025, the Supreme Court rendered its decision in one of the term’s two pivotal white-collar cases, Thompson v. United States.[1] In a unanimous opinion authored by Chief Justice John Roberts, the Court clarified that a federal statute criminalizing the knowing issuance of false statements to influence certain regulators and entities, including lenders and financial institutions, applies solely to statements that are factually false.[2] It does not extend to statements that, while literally true, may nonetheless be misleading.[3] This ruling reversed the Seventh Circuit’s decision convicting Patrick Thompson under 18 U.S.C. § 1014.[4]

Between 2011 and 2014 Thompson secured three loans from a bank, amounting to $219,000.[5] Following the bank’s failure in 2017, the Federal Deposit Insurance Corporation (“FDIC”) assumed responsibility for collecting the outstanding loans.[6] Thompson contested the balance of $269,120.58 on his invoice, asserting that he had only borrowed $110,000.[7] He reiterated this claim in multiple communications with FDIC contractors.[8] He subsequently settled his debt with the FDIC for $219,000, an amount that, notably, matched the precise principal sum of the loans he had obtained but purportedly failed to remember.[9] However, any elation he may have derived from his thousands in interest savings was likely cut short, as he was indicted on two counts of violating 18 U.S.C. § 1014.[10] The statute at hand prohibits “knowingly mak[ing] any false statement or report . . . for the purpose of influencing in any way the action of . . . the Federal Deposit Insurance Corporation . . . upon any . . . loan.”[11]

A jury subsequently convicted Thompson, and he sought acquittal, contending that his statements were not false, as he had indeed borrowed $110,000 initially, despite the larger amount he later owed.[12] Although Thompson acknowledged that his statements may have been misleading, he argued that he could not be convicted of making statements because his misrepresentations to the FDIC were “literally true.”[13] The lower courts rejected Thompson’s motion, concluding that the Seventh Circuit does not mandate literal falsity to establish a violation of § 1014, and the misleading statements alone are sufficient to support a conviction.[14]

On appeal, the Supreme Court reversed, holding that § 1014 criminalizes only false statements, not statements that are misleading but literally true.[15] The key issue of this case ultimately turned on whether the ordinary meaning of “false” encompasses statements that are factually true yet misleading.[16] Justice Roberts, in illustrating how even technically accurate statements can be deceptive, referenced a particularly colorful hypothetical, which the government conceded at oral argument. In this example a doctor assures a patient, “I’ve done a hundred of these surgeries,” without disclosing that ninety-nine of those patients had died. While the statement is factually true, it is nonetheless misleading, as it could lead the listener to infer a record of success rather than failure. [17] With that recognition in mind, Roberts quickly dismissed the government’s argument, which he characterized as relying on a “dictionary in [one] hand” and a “thesaurus in the other.”[18]

The government had contended that “false” could simply mean “deceitful” and that “false” and “misleading” have historically been treated as synonymous.[19] The Court, however, was unpersuaded, noting that the government’s reasoning did little more than highlight the considerable overlap between the two terms, rather than demonstrating that they are legally interchangeable.[20] The Court reasoned that the government’s arguments simply bring light to the “substantial overlap” between the terms at issue. However, the overlap between the terms is irrelevant, and erroneously interpreting the word “false” to be synonymous with “misleading” would thus make the inclusion of “misleading” in the statutes in question superfluous.[21]

Justice Alito and Justice Jackson each authored separate concurring opinions, offering distinct perspectives on the Court’s reasoning. Justice Alito underscored the significance of context in determining whether a misleading statement rises to the level of a falsehood under the law.[22] Justice Jackson, meanwhile, wrote separately to highlight that the jury instructions in Thompson had been properly framed, as they referred exclusively to false statements without conflating them with misleading ones.[23] In her view, this left the Seventh Circuit with little to address on remand beyond affirming the District Court’s judgment upholding the jury’s guilty verdict.[24]

The Supreme Court’s decision in Thompson is poised to prompt increased resistance to broad prosecutorial interpretations of federal criminal statutes, particularly in cases involving false statement charges. This ruling is likely to embolden defendants to challenge expansive readings of fraud statutes, advocating for a more restrictive definition of what constitutes a false statement. Additionally, its implications may extend beyond the criminal context, as defendants seek to apply a narrower interpretation to regulatory civil enforcement actions by federal agencies.

The decision in Thompson follows a series of recent Supreme Court rulings that have limited the scope of federal fraud and corruption laws. Notably, in Ciminelli v. United States, the Court unanimously rejected the “right to control” theory as a valid basis for liability under the federal wire fraud statute.[25] Similarly, in Percoco v. United States, the Court struck down as unconstitutionally vague the “dominion and control” and “special relationship” test used to impose liability on private individuals allegedly influencing government affairs.[26] Additionally, in Kelly v. United States, the Court held that to sustain a conviction under federal fraud statutes, the government must demonstrate that the defendant engaged in deception for the purpose of obtaining property.[27] Together, these decisions reflect the Court’s ongoing trend of restricting overly expansive applications of federal fraud and corruption statutes, signaling heightened scrutiny of prosecutorial discretion in white-collar criminal cases.Thompson v. United States marks a significant development in the interpretation of false statement charges, particularly under § 1014.

By reinforcing the requirement that prosecutors prove actual falsity rather than relying on ambiguous or misleading statements, the Supreme Court has set a precedent that could impact a wide range of white-collar cases. This decision serves as a reminder of the importance of precise legal standards in financial fraud prosecutions and may lead to increased scrutiny of government charging decisions. Moving forward, defense teams will likely leverage Thompson to challenge allegations that lack clear evidence of falsity, potentially reshaping how these cases are litigated. As courts and prosecutors adjust to this ruling, its broader implications on financial fraud enforcement remain to be seen.

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[1] 145 S. Ct. 821 (2025).

[2] Id. at 828-29.

[3] Id.

[4] Id. at 824.

[5] United States v. Thompson, No. 21-cr-00279-1 2022, WL 1908896, at *1 (N.D. Ill. June 3, 2022).

[6] Thompson, 145 S. Ct. at 824.

[7] Id.

[8] Id.

[9] Id. at 824-25.

[10] Id. at 825.

[11] 18 U.S.C. § 1014.

[12] United States v. Thompson, 89 F.4th 1010, 1015 (7th Cir. 2024).

[13] Id.

[14] United States v. Thompson, No. 21-cr-00279-1 2022, WL 1908896, at *13 (N.D. Ill. June 3, 2022).

[15] Thompson, 145 S. Ct. at 828-29.

[16] Id. at 826.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 827.

[21] Thompson, 145 S. Ct. at 827 (citing Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (“[T]he Court will avoid a reading which renders some words altogether redundant.”)).

[22] Thompson, 145 S. Ct. at 829-30 (Alito, J., concurring).

[23] Id. at 830 (Jackson, J., concurring).

[24] Id. at 831.

[25] 598 U.S. 306, 317 (2023).

[26] 598 U.S. 319, 333 (2023).

[27] 590 U.S. 391, 404 (2020).

Photo Credit: What it takes to move up as a sales representative, Career Builder, https://www.careerbuilder.com/advice/blog/what-it-takes-to-move-up-as-a-sales-representative.

Authored by: Taylor A. Franklin

In 1938, Congress passed the Fair Labor Standards Act (FLSA), which was signed into law by President Franklin Roosevelt.[1] FLSA establishes minimum wage and overtime pay.[2] FLSA establishes the requirements for exemptions from the minimum wage and maximum hour requirements.[3] FLSA requires employers to meet the minimum wage maximum hour requirements unless the employee is an executive, professional, or computer and outside sales  employee.[4] FLSA generally requires overtime pay when a covered employee works more than 40 hours per week.[5] However, Congress recognized that a minimum wage and overtime pay would be impractical or inappropriate for some jobs.[6] Therefore, FLSA exempts various types of employees from the minimum-wage requirement and the overtime-pay requirement.[7] An employer alleged of violating 29 USC § 207 has the burden to show that an exemption applies.[8] Employers alleging that their employee falls under the “outside salesmen” position must prove that their job is to primarily make sales and regularly work away from the employer’s place of business. [9]

In E.M.D. Sales, Inc. v. Carrera, a group of three EMD  sales representatives sued E.M.D. Sales (“EMD”) for failing to pay them overtime under the FLSA.[10] The sales representatives were all assigned to service a “route” of stores.[11] EMD, a Latin American, Caribbean, and Asian food product distributor delivers directly to chain and independent grocery stores.[12] These representatives were responsible for traveling their routes and providing supplementary services – spending most of their time working out of the office.[13] Each representative completed “inventory management” tasks which consisted of replenishing depleted products, removing damaged or expired items from the shelves, issuing credits to stores for the removed items, and submitting orders for additional EMD products.[14] Although both parties agreed that servicing chain stores was at least half of the sales representatives’ jobs, the district court found that the plaintiffs spent most of their time at those stores, emphasizing that the division of labor matters.[15] Both sides strongly disputed this, as plaintiffs could make some sales to independent stores, but time spent at chain stores, where product selection was determined by corporate buyers and EMD management, meant fewer sales opportunities and thus less commission.[16] The sales representatives worked approximately 60 hours per week, earning compensation on a commission basis.[17] EMD did not pay them hourly or provide overtime compensation.[18] The sales representatives filed suit because they were denied that wage.[19]

While EMD did not dispute the hours worked without overtime pay, they argued that they were not liable for overtime compensation because the sales representatives’ positions qualified for the “outside salesmen” exemption under 29 U. S. C. §207(a)(1).[20] However, the United States District Court for the District of Maryland found for the group of sales representatives and held EMD liable because they did not prove that they were exempt by “clear and convincing evidence” that the employees were outside salesmen.[21] After the district court ruling, EMD appealed to the Fourth Circuit arguing that the district court used the wrong standard and should have applied the preponderance of the evidence standard.[22] The Fourth Circuit held that the district court applied the correct standard and affirmed their judgment.[23] EMD subsequently appealed the decision to the Supreme Court.[24]

The Supreme Court resolved the circuit split and emphasized that, when Congress enacted the Fair Labor Standards Act in 1938, the preponderance of the evidence standard was established as the default standard of proof in civil proceedings.[25] The Court further noted that the preponderance standard allows both parties in a typical civil action to “share the risk of error in roughly equal fashion.”[26] However, the Court may require a heightened standard of proof if: (1) a provision of the US Code or Congress uses a term with a settled common law meaning requires it, (2) the Constitution requires it, or (3) the government seeks to take “unusual coercive action” against an individual.[27] The Court concluded that the default preponderance of the evidence standard applies when an employer seeks to prove that an employee is exempt from the Fair Labor Standards Act and none of the aforementioned criteria apply.[28]

Although the employees argued that the clear and convincing standard should apply because the FLSA prioritizes the public’s interest in a well-functioning economy in which workers are guaranteed a fair wage, the Court was unconvinced.[29]  The Court determined that the legislation should be enforced as intended with the traditional default standard of evidence because the FLSA reflects a balancing of competing interests.[30] Additionally, the employees argued that the FLSA’s minimum wage and overtime pay rights are not waivable and therefore separate from other rights subject to a preponderance threshold; nevertheless, the Court stated that the waivability of a right does not affect the applicable standard of proof.[31] Finally, the Court rejected the contention that FLSA lawsuits require a higher threshold due to the employer’s control over evidence and the possibility of low income for plaintiffs.[32] Therefore, the Court held that the preponderance-of-the-evidence standard applies when an employer seeks to prove an employee is exempt from the minimum wage and overtime provisions of the FLSA, and remanded the case for further proceedings consistent with their decision.[33]

Several organizations filed amicus briefs in support of the petitioners, arguing that the standard of proof should be preponderance of the evidence, consistent with established precedent, rather than the higher clear and convincing standard.[34] For example, the National Association of Wholesaler-Distributors and International Foodservice Distributors Association strongly pushed for this position as outside salespeople play a unique role in today’s businesses.[35] Similarly, the National Federation of Independent Business also filed an amicus brief discussing the disproportional impact on small businesses.[36] The Court’s decision provides more uniformity for enforcing the statute by clarifying that the preponderance of the evidence standard applies for employers proving their burden that an employee is exempt from the FLSA provisions on minimum wage and overtime pay.[37] Although there were concerns that EMD Sales, Inc. v. Carrera would make it difficult for employers to prove exemptions, increasing the risk of costly litigation[38] and the likelihood of forum shopping,[39] the Court’s decision resolved these concerns. The decision now ensures that the burden of proof for FLSA exemption claims reflects a balanced interest between employers and employees.

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[1] E.M.D. Sales Inc. v. Carrera, 604 U.S. 45, 47 (2025).

[2] Id. 

[3] Id.

[4] U.S. Dep’t of Labor, Fact Sheet #17A: Overtime Pay Requirements of the Fair Labor Standards Act (FLSA) (2008).

[5] 29 U.S.C. § 207(a)(1).

[6] E.M.D. Sales Inc., 604 U.S. at 2.

[7] See 29 U.S.C. §§ 213(a)-(b).

[8] E.M.D. Sales Inc., 604 U.S. at 48; Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).

[9] 29 C.F.R. § 541.500(a); E.M.D. Sales Inc., 604 U.S. at 48; Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 148 (2012).

[10] Carrera v. E.M.D. Sales Inc., 75 F.4th 345, 347 (4th Cir. 2023).

[11] See id. at 349.

[12] Id.

[13] Id.

[14] Id.

[15] See id.

[16] Carrera, 75 F.4^th at 349.

[17] See id.

[18] Id.

[19] Id. at 350.

[20] Id.

[21] Id.

[22] Carrera, 75 F.4^th at 350.

[23] Id.

[24] E.M.D. Sales Inc., 604 U.S. at 49.

[25] Id.

[26] Id. at 50.

[27] Id. at 50-51.

[28] Id. at 52.

[29] Id.

[30] E.M.D. Sales Inc., 604 U.S. at 53.

[31] Id.

[32] See id. at 53-54 (“But in Title VII cases too, employers control ‘most of the cards,’ and plaintiffs may be low-income.”). (quoting Murray v. UBS Securities, LLC, 601 U.S. 23, 36 (2024)).

[33] Id. at 54.

[34] E.g., Brief for The United States as Amici Curiae Supporting Petitioners, E.M.D. Sales Inc. v. Carrera, 604 U.S. 45 (2025) (No. 23-217).

[35] Brief for National Association of Wholesaler-distributors and International Foodservice Distributors Association as Amici Curiae Supporting Petitioners, E.M.D. Sales Inc. v. Carrera, 604 U.S. 45 (2025) (No. 23-217).  

[36] Brief for the Chamber of Commerce of the United States of America, et al. as Amici Curiae Supporting Petitioners, E.M.D. Sales Inc. v. Carrera, 604 U.S. 45 (2025) (No. 23-217).

[37] See E.M.D. Sales Inc., 604 U.S. at 54.

[38] Rachel Mackey, NACo Legal Advocacy: EMD Sales, Inc. v. Carrera, National Association of Counties (Aug. 6, 2024)  https://www.naco.org/news/naco-legal-advocacy-emd-sales-inc-v-carrera.

[39] Jon O. Shimabukuro, FLSA Exemptions and Burdens of Proof: E.M.D. Sales, Inc. v. Carrera, Congressional Research Service (2024), https://www.everycrsreport.com/files/2024-10-31_LSB11243_003d32f4b96da1cb41815de3d54d1a891c95f8b3.pdf.