February 2024

The Federal Trade Commission (FTC) and a coalition of nine state attorneys general (AG) filed a lawsuit on February 26, in the U.S. District Court for the District of Oregon seeking a preliminary injunction to stall Kroger Company’s (Kroger) proposed $24.6 billion acquisition of Albertsons Companies (Albertsons), citing concerns that the proposed deal would eliminate competition among the supermarket giants, leading to higher grocery prices for millions of Americans. FTC commissioners voted unanimously to authorize the lawsuit, which was joined by AGs from Arizona, California, the District of Columbia, Illinois, Maryland, Nevada, New Mexico, Oregon, and Wyoming. Simultaneously, the FTC filed an administrative complaint against Kroger and Albertsons to block the proposed transaction.

On February 23, U.S. District Judge Clifton L. Corker of the Eastern District of Tennessee granted a preliminary injunction requested by the Tennessee and Virginia attorneys generals (AG) against the NCAA’s “NIL-recruiting ban.” This ban prohibits boosters and collectives from discussing name, image, and likeness (NIL) opportunities with student-athletes before they commit to a school. The court found that the AGs had established both a likelihood of success on the merits and irreparable harm that would occur without the injunction. This decision could have significant implications for the landscape of college sports.

In the latest episode of Regulatory Oversight, Troutman Pepper Partner Judy Jagdmann and Counsel Gene Fishel are joined by Sam Kaplan, assistant general counsel for public policy for Palo Alto Networks. They engage in an insightful conversation revolving around the government response to cyber incidents and the potential role of AI in combating cybersecurity threats.

On February 23, U.S. District Judge Clifton L. Corker of the Eastern District of Tennessee, issued an opinion and order granting the Tennessee and Virginia attorneys generals’ (AG) request for a preliminary injunction enjoining the National Collegiate Athletic Association (NCAA) from enforcing its so-called “NIL-recruiting ban,” i.e., the current NCAA guidance that prohibits boosters and collectives from communicating with student-athletes about name, image, and likeness (NIL) opportunities before they commit to a particular school. The court found the AGs had established both a likelihood of success on the merits and irreparable harm that would occur absent imposition of the preliminary injunction. By granting the preliminary injunction, the court has set off a series of events that are sure to have wide-ranging implications both on the near- and long-term landscape of college sports.

In February 2018, Ohio become the first state to sue DuPont alleging that the company had released perfluorooctanoic acid (PFOA) into the environment.[1] Since then, multiple state attorneys general (AG) have continued to weigh in on DuPont’s alleged role in contaminating the environment with per- and poly-fluoroalkyl substances (PFAS), including recent lawsuits filed by Tennessee[2] and North Carolina.

On February 14, Massachusetts Attorney General (AG) Andrea Joy Campbell filed a civil lawsuit against Holtec Decommissioning International LLC and its affiliate Holtec Pilgrim LLC (Holtec), alleging the improper handling of asbestos-containing demolition debris in violation of the Commonwealth’s Public Health Law. The Commonwealth is seeking civil penalties of $25,000 for each day of violation, as well as a permanent injunction that would require Holtec to comply with the state’s Air Act and the air regulations that are promulgated under the state’s Public Health Law. Shortly after the filing, the parties announced that they are working toward a settlement that could require Holtec to pay somewhere between $200,000 to $500,000.

Introduction

On February 1, Senior U.S. District Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado denied Mackie A. Barch (Mackie) and Trellis Holdings Maryland, Inc. (Trellis and together with Mackie, defendants) motion to vacate the original judgment entered into on September 7, 2022, awarding $6.4 million to David J. Bartch (plaintiff) as a result of defendants’ breach of contract. In reaching his ruling, Judge Jackson was unpersuaded by defendants’ argument that the court lacks subject matter jurisdiction over this matter because the plaintiff’s injury is not redressable by a federal court because marijuana is illegal under federal law, and federal courts therefore cannot adjudicate marijuana cases. Judge Jackson further went on to specify that the conduct at the center of this dispute (defendants’ agreement to return plaintiff’s ownership interest upon the successful licensing of Doctor’s Orders Maryland (DOMD)) would not have “affected the amount of cannabis that the company [DOMD] cultivated or distributed” in violation of the Controlled Substances Act (CSA). The decision to ultimately defend and extend Article III jurisdiction in cases arising out of cannabis business disputes is an interesting shift that highlights the sway of public opinion to the side of the legalization of marijuana on the federal level.