Commercial Litigation Update

In the wake of the Dobbs decision, which eliminated the constitutional right to abortion, individual states were left to regulate or ban the procedure. A patchwork of state laws subsequently followed, with some states enacting total bans and others permitting abortion access, with considerable variations in between. In addition to regulating or restricting access to the procedure, certain states have criminalized seeking, providing, and helping others obtain or provide abortion, especially those providing telehealth services, but these actions are legal and protected in New York. New York’s “Shield Law” consists of several statutes, enacted and intended to protect providers and patients offering or seeking abortion in New York against the imposition of criminal and civil liability originating from outside the state. According to the New York State Office of the Attorney General, “[t]he Shield Law broadly prohibits law enforcement and other state officials from cooperating with investigations into reproductive health care (“protected health care”) so long as the care was lawfully provided in New York.”^[1] Moreover, “[w]ith respect to reproductive health care specifically, these protections apply even if the care was provided via telehealth to a patient located out-of-state, so long as the provider was physically present in New York.”^[2]

New York’s Shield Law creates substantive protections for reproductive health care, which can be summarized as follows:

On June 30, 2025, the U.S. Department of Justice (“DOJ”), together with the U.S. Department of Health and Human Services Office of Inspector General (“HHS OIG”) and other law enforcement partners, announced the results of the 2025 National Health Care Fraud Takedown—hailed as the largest in history.

This year, DOJ’s Health Care Fraud Unit reported that 324 defendants were charged for their alleged involvement in various health care fraud schemes that involved over $14.6 billion in intended loss—more than doubling the prior record of $6 billion set in 2020 during the first Trump administration. By way of comparison, last year, the 2024 Takedown charged 193 defendants with allegedly committing more than $2.5 billion in fraud. And two years ago, the 2023 Takedown charged 78 defendants with more than $2.5 billion. To say there was a significant increase between the Biden administration and the second Trump administration would be an understatement.  

That this administration would “follow the money” should not come as a surprise. As noted, the prior record was set during President Trump’s first term in 2020. In that Takedown, DOJ and HHS OIG reported 345 defendants allegedly submitted more than $6 billion in false and fraudulent claims to federal health care programs and private payers. The bulk of that 2020 Takedown, $4.5 billion, was related to telehealth.

In 2023, the Maryland General Assembly passed the Maryland Child Victims Act of 2023 (“CVA”) to expand claimants’ ability to file and seek damages for alleged child sexual abuse cases, following the trend initiated by other states like New York  and New Jersey.  The CVA was signed into law by Governor Wes Moore on April 11, 2023, and became effective October 1, 2023. The law removed the statute of limitation for claims of sexual abuse that occurred while the alleged victim was a minor. The CVA also placed high caps on non-economic damages from private defendants and monetary damages from public defendants.

The June 1, 2025 Amendment Drastically Reduces the Damages Cap

On April 22, 2025,  Governor Moore signed an Amendment to the CVA that reduced damages for public and private defendants.  The Amendment, which took effect on June 1, 2025, lowers the cap on noneconomic damages for CVA cases filed on or after June 1, 2025 in the following ways:

New episode of our video podcast, Speaking of Litigation: Early decisions in high-stakes litigation can shape both the courtroom and public narratives, yet critical first-move strategies are underutilized.

Why It Matters

• Setting the Tone Early: Find out how pre-litigation discovery builds compelling, evidence-backed cases.

• Controlling the Narrative: Learn how preemptive filings can influence not only legal outcomes but also public opinion.

• Detailed Insights on Strategy: Gain valuable advice on making critical first moves that can define the trajectory of your case.

Don’t miss Epstein Becker Green attorneys Sierra Hennessy, David Clark, and Alex Barnard as they explore the benefits, risks, and nuances of these advanced legal strategies.

This episode of Speaking of Litigation is packed with actionable insights for general counsel and legal professionals navigating complex litigation and provides real-time examples from high-profile disputes, including Blake Lively’s and Justin Baldoni’s cases.

On June 25, 2025, the Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services (“HHS”) released a short video containing the highlights of the Medicaid Fraud Control Units (“MFCUs”) Annual Report for Fiscal Year 2024 (“2024 Annual Report”). While the 2024 Annual Report was released in March 2025, HHS OIG just released the two-minute video summarizing the key aspects of the report.

MFCUs—which investigate and prosecute statewide Medicaid provider fraud, and beneficiary abuse and neglect—recovered $1.4 billion in FY 2024, which equates to $3.46 for every $1 spent. Criminal recoveries were the highest amount in the past 10 years, $961 million, and more than double the rolling 5-year average. HHS OIG attributes this massive increase to the California MFCU, which recovered $513 million on its own.

In February 2025, Tennessee Governor Bill Lee signed a bill into law strengthening immigration enforcement in the state. We previously wrote about this law here.

The law created a Centralized Immigration Enforcement Division at the state level that coordinates directly with the Trump administration on federal immigration policies, establishes a new driver’s license distinguishing U.S. citizens from lawful permanent residents, and through provision of grants, encourages local governments to participate in enforcing federal immigration authorities.

The law also made it a felony for elected officials to vote for so-called sanctuary city policies, punishable by up to six years in jail, a $3,000 fine, and the law requires removal of any official who violates the law “as soon as practicable.”

If the wide-ranging decisions that ended the U.S. Supreme Court’s 2024 term on Friday have anything in common, it is their length, with some of their syllabi running to five small-print pages and more, and with a plethora of concurring and dissenting opinions.

As one might expect, these concluding decisions are the most controversial and perhaps far-reaching of the term, and hence were the most difficult for the Justices to resolve until the end. The easier ones brought unanimity, or near to it. These final decisions don’t come close.

The U.S. Supreme Court decision yesterday that likely will get the most attention is Medina v. Planned Parenthood South Atlantic, in which a 6–3 Court that lined up according to the conservative vs. liberal stereotype, held that “Section 1396a(a)(23)(A) of the Medicaid Act does not clearly and unambiguously confer individual rights enforceable under 42 U.S.C. §1983.”

The question before the Court was whether individual Medicaid beneficiaries may sue state officials under §1983, the venerable civil rights statute, for failing to comply with the “any qualified provider” provision of the Medicaid law. Planned Parenthood South Atlantic operates two clinics in South Carolina, serving both Medicaid and other patients alike. Among the services it provides is performing abortions. In 2018, South Carolina, citing state law prohibiting public funds for abortion, expelled Planned Parenthood from the state’s Medicaid program. At the same time, the state took steps that it claimed would ensure that other providers would continue offering necessary medical care and family planning services. Planned Parenthood and a patient named Julie Edwards brought a class action suit, claiming that the exclusion of Planned Parenthood violated the any-qualified-provider provision of the statute by depriving her and others of their preferred providers of gynecological care.

Justice Gorsuch, writing for himself and the other five jurisprudential conservatives, noted that §1983 allows private parties to sue state actors that violate their “rights” under the federal “Constitution and laws.” “But federal statutes do not automatically confer §1983-enforceable ‘rights.’ This is especially true of spending-power statutes like Medicaid, where ‘the typical remedy’ for violations is federal funding termination, not private suits.”

Effective April 1, 2015, the Commercial Division of the New York State Supreme Court promulgated a series of reforms to the Rules of Practice for the Commercial Division, including the addition of new Rule 11-e, which provides specific requirements for responding and objecting to document requests. In particular, Rule 11-e(a)-(b) requires parties to provide particularized responses and specify in detail whether documents are being withheld in response to all or part of the requests, and Rule 11-e(c) requires a date for the completion of document production prior to depositions. These are markedly different than those required by the Uniform Civil Rules that govern non-Commercial New York State Supreme Courts and County Courts, and have been the subject of much discussion by courts and practitioners in the ensuing years. However, one significant requirement of Rule 11-e that is often overlooked concerns Rule 11-e(d).

In particular, Rule 11-e(d) provides as follows:

(d) [b]y agreement of the parties to a date no later than one (1) month prior to the close of fact discovery, or at such time set by the Court, the responding party shall state, for each individual request: (i) whether the production of documents in its possession, custody or control and that are responsive to the individual request, as propounded or modified, is complete; or (ii) that there are no documents in its possession, custody or control that are responsive to the individual request as propounded or modified.

With six more decisions, the U.S. Supreme Court decided no fewer than 11 cases in two business days last week, following 12 others over the previous two weeks.

In other words, summer vacation is upon us, as the Court’s term is likely to end soon.

The most recent decisions are, as predicted, more controversial than the spate of unanimous or near-unanimous decisions of earlier weeks. None of the newest decisions, nor indeed any of the cases yet to be decided, are likely to provoke the level of public attention given to the Court’s decision in United States v. Skrmetti, upholding a state’s law prohibiting certain medical treatments for transgender minors.

However, the latest batch of decisions offers considerable guidance to litigators with respect to the level of review that federal courts may exercise under several very active statutory regimes and as to important procedural issues such as standing and venue.