Commercial Litigation Update

In June, Maine and Oregon joined a growing list of states that now prohibit the reporting of medical debt to a consumer reporting agency.

On June 9, 2025, the governor of Maine signed into law LD558, which amends the Maine Fair Credit Reporting Act to prohibit medical creditors, debt collectors and debt buyers from reporting a consumer’s medical debt to a consumer reporting agency. Under the Maine law, a “medical creditor” is defined as “an entity that provides health care services and to whom a consumer incurs medical debt or an entity that provided health care services to a consumer and to whom the consumer previously owed medical debt if the medical debt has been purchased by one or more debt buyers.” Additionally, the Maine law forbids consumer reporting agencies from reporting medical debt on consumer reports. Consumers whose medical debt is reported in violation of the new amendments can seek civil remedies against the medical creditor, debt collector, debt buyer, or consumer reporting agency that reported the medical debt pursuant to the Maine Fair Credit Reporting Act for actual damages, attorneys’ fees and costs, and either treble damages or statutory damages depending on whether the violation was willful or negligent.

To anyone who has followed the case of United States v. Skrmetti, especially those who attended or listened to the oral argument, the U.S. Supreme Court’s 6–3 holding that a Tennessee law prohibiting certain medical procedures for transgender minors was not subject to heightened or strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment should have come as no surprise.

Although there was an array of concurring and dissenting opinions, the majority opinion, written by the Chief Justice, was joined by the Court’s other five jurisprudentially conservative Justices, while the three “liberals,” Justices Sotomayor, Kagan, and Jackson, dissented.

As the end of the term seems to be rushing towards us, the U.S. Supreme Court issued six more opinions yesterday, mostly unanimous or near unanimous. In other words, the Court is clearing the shelves of the “easy ones.” More profound disagreements are likely on the horizon, but not this time. Notably, in one case that was not unanimous, we find Justice Jackson and Justice Thomas together in a concurring opinion. While not landmarks, yesterday’s “Pick Six” are all interesting cases, several of which will affect the practices of many readers of this blog, and one of them hearkens back nostalgically to a case this writer argued and won years ago. So, let’s get going.

Hospitals and health systems are familiar with traditional medical malpractice cases, but as healthcare is increasingly seen as a business, healthcare providers need to understand the potential for, and limitations of claims brought under the guise of consumer protection laws. 

Consumer protection laws can be tempting causes of action for individuals who believe they have been wronged by the healthcare system. Unlike medical malpractice claims, which require expert testimony and may include damages caps, consumer protection statutes often include treble damages, punitive damages, and attorneys’ fees. Consumer protection laws may also offer injunctive relief as a remedy, do not require a plaintiff to prove causation or damages, and have the potential for class action lawsuits. To prevent plaintiffs from reframing a negligence case to sidestep the limitations of medical malpractice cases, some courts and states have drawn boundaries between consumer protection and medical malpractice cases.

As this term draws to a close, the U.S. Supreme Court is getting busy in reducing its inventory of pending cases. Yesterday, six of them were resolved.

Unfortunately for me, as well as other lawyers who frequently deal with class actions, the case I was most eagerly awaiting, Laboratory Corporation of America Holdings v. Davis, was resolved summarily with a one-liner indicating a “DIG,” that is, “cert. dismissed as improvidently granted.”

Usefully for us interested lawyers, though, Justice Kavanaugh dissented from this per curiam decision, and his dissenting opinion gives us a good idea of what the other eight Justices were thinking and how the issue in the case might come up again in future terms.

California courts are increasingly handling class action lawsuits alleging that cookies and other web technologies violate privacy laws by collecting personal data without consent. A key issue in these cases is whether California courts can exercise personal jurisdiction over out-of-state companies operating location-neutral websites.

A recent ruling from the Ninth Circuit Court of Appeals is raising the stakes for any business that operates a website collecting user data. In Briskin v. Shopify, decided in April 2025, the court held that California courts can exercise personal jurisdiction over an out-of-state company—Shopify—for allegedly collecting personal data from a California resident without proper disclosure or consent. This decision signals a significant shift in how courts view digital jurisdiction in the age of online commerce and widespread data collection.

For more than a decade, California courts have wrestled with the challenge of how to resolve disputes over the authenticity of electronically signed arbitration agreements.

While the State Supreme Court has not yet offered conclusive guidance, decisions by the State’s various appellate courts offer insight into what factors a court is likely to consider.

As we have noted before, the holding in Epic Systems v. Lewis contributed to a proliferation of arbitration agreements with class and collective action waivers. Our prior analysis predicted certain datapoints one should ...

The U.S. Supreme Court did not issue any merits opinions yesterday, but it did issue two orders denying cert.

One of them, Nicholson v. W.L. York, Inc., is potentially significant for litigants of discrimination claims under Section 1981 of the Civil Rights Act of 1866, 42 U. S. C. §1981.

The result of a second, in Snope v. Brown, a firearms case, might surprise some observers of the Court.

Readers of this blog will recall our recent discussion concerning the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, in which the Court overruled the long-standing doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Counsel.

Under Chevron, courts had been required to defer to “permissible” agency interpretations of ambiguous statutes even where a reviewing court might have read the statute differently from the agency.

Instead, the Court held in Loper Bright that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous. As the Court put it, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” 

This post’s title comes from the 1960s doo-wop hit “Stay,” by Maurice Williams and the Zodiacs. I recognize that most practicing lawyers today are too young to know of this classic.

However, its opening line echoes in yet another action of the U.S. Supreme Court, today’s order in Noem v. Doe, granting a stay (for at least a bit longer) of a district court order that had blocked the deportation of more than a half million immigrants from Cuba, Haiti, Nicaragua and Venezuela.

Those persons were in the United States under parole programs that gave them temporary legal status. Today, the Court is allowing the Department of Homeland Security to deprive those persons of that protection and to subject them to deportation, notwithstanding that ongoing legal proceedings could lead to a restoration of the parole programs at issue.