The Next Big Things: Insights for 2020

The US Department of the Treasury’s Committee on Foreign Investment in the United States (CFIUS) published the final rules implementing the Foreign Investment Risk Review Modernization Act (FIRRMA). FIRRMA ushered in noticeable changes and higher awareness of CFIUS and its impact on foreign investment in the United States, including real estate, change of control, and non-controlling investments.

The recently passed $1.4 trillion Appropriations Act increases funding for US healthcare agencies and programs for 2020. The new law limits reauthorization of expiring healthcare extenders to five months, delays a scheduled reduction in Medicaid Disproportionate Share Hospital payments, enhances federal funding for healthcare research, and permanently repeals certain Affordable Care Act taxes.

Intellectual property issues will dominate the autonomous and connected vehicle landscape in 2020 and well beyond, particularly those relating to standard essential patents (SEPs)—patents essential to practice a technology. Owners of wireless communication patents are seeking increasingly to expand their SEP licensing strategies—once previously confined to the telecommunications industry—into the automotive industry. This licensing activity has raised competition, contractual, and constitutional questions about SEPs.

In the much-anticipated decision State of Texas v. United States of America, et al., the US Court of Appeals for the Fifth Circuit upheld a district court ruling that the individual mandate under the Affordable Care Act is unconstitutional. Because the Tax Cuts and Jobs Act zeroed out the federal tax penalty under the individual mandate, effective January 1, 2019, the Fifth Circuit concluded that since there is no longer a penalty or tax resulting from the individual mandate, the mandate can no longer be sustained constitutionally under Congress’s taxing power. There is no immediate action that group health plan sponsors need to take as a result of the Fifth Circuit’s decision, but there will likely be additional fights this year.

Over the past few years, headlines have drawn more attention to the troubling trend of cyberattacks on critical energy infrastructure. Publicly available reports have detailed attacks that disrupted everything from communication networks used to monitor remote power generation sites to scheduling and billing services used by natural gas utilities. And recent FBI reports have cautioned that state-sponsored hackers are targeting critical energy infrastructure operators with what appear to be longer-term infiltration or reconnaissance campaigns. Cyberattacks on the nation’s pipeline system, which spans millions of miles, could disrupt operations, resulting in an energy emergency or safety-significant event. Read this Law360 bylined article to learn about federal efforts to oversee pipeline cybersecurity, and potential challenges facing the industry as those efforts progress.

The marketplace for CBD products is exploding and expected to grow to $16 billion by 2025. Because the US Food and Drug Administration (FDA) ordinarily does not move quickly to regulate new products, especially in times of transition, it is likely that the marketplace will develop its own form of regulation through the use of the National Advertising Division, product liability claims, and competitor challenges. In this type of fluid environment, it is critical to ensure that the risk around the legal uncertainty of the ingredient is properly allocated among the parties. Read on in this Food Safety Magazine bylined article for the history and current state of CBD regulations.

Data is largely considered the world’s most valuable resource. With the rise of the Internet of Things, our access to vast amounts of information has increased, but so has our exposure. Companies everywhere are using data to make money. Now that the US Supreme Court essentially legalized sports betting in the 2018 decision Murphy v NCAA, we expect data to play a bigger role in how everyone from fans to players to leagues to third-party sports betting companies look at sports.

The legalization of sports betting continues to be one of the most watched developments in sports law, according to this Law360 article. We are starting to see the sports gambling industry evolve beyond smaller start-ups and bookmaking companies as larger corporations begin to invest in this industry, bringing their big data, strength, and experience. And professional sports leagues are getting involved as they focus on how to monetize their product, both with respect to their data and the game on the field or court. Big sports teams aren’t the only ones looking to monetize their product, with California college athletes also finding a foothold in new revenue streams with legislation allowing them to get paid from endorsements, paving the way for similar legislation across the nation.

A number of significant statutory and regulatory initiatives have transformed the food and beverage industry over the last three years. The USDA issued its long-awaited bioengineered disclosure label rule, and the FDA (i) provided updates to the nutrition facts panel on human food, (ii) implemented menu labeling requirements for covered establishments (i.e., certain types of restaurants), and (iii) is (almost) finished implementing vending machine label requirements. These efforts have progressed despite numerous compliance date delays and FDA’s willingness to employ enforcement discretion. We are beginning to see a relative slowdown in both formal rulemaking and new initiatives at FDA in relation to food, making it more difficult to predict what 2020 has in store for the food and beverage industry. But we do our best in this Law360 bylined article.

Although California’s landmark new privacy law is live, the attorney general is restrained from bringing enforcement actions until July 1. Still, all eyes are on the regulator, who is anticipated to issue at least one major enforcement action before the end of the first year of this new decade, according to this Law360 article. Any initial enforcement actions are a good indication to the business community of the kinds of compliance issues that will be priorities.