Columns

While deportation headlines continue to dominate U.S. news, U.S. Citizenship and Immigration Services (USCIS) has quietly been examining approved naturalization applications filed by U.S. legal permanent residents (LPR) who have already obtained U.S. citizenship. 

The process whereby individuals’ previously granted naturalization status is revoked is called “denaturalization.” In June 2025, U.S. Assistant Attorney General Brett A. Shumate issued a memo requesting the DOJ’s Civil Division to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence.” One year later, this memo has led to many LPRs fearfully asking, “Is it safe to become a naturalized U.S. citizen?” 

To answer this question, it is important that one understands that U.S. naturalization process. 

Generally, to be eligible for U.S. naturalization, one must be at least 18 years old, an LPR (green card holder) for 5 years, maintain continuous and physical presence in the U.S., demonstrate good moral character, pass exams in English and U.S. history and civics, and swear allegiance to the U.S. 

The 5-year period can be shortened to 3 years if the person obtained their LPR status through marriage to a U.S. spouse and they are still legitimately married to that spouse.

Any LPR who wants to become a naturalized U.S. citizen must file an application for naturalization with USCIS, submit their biometrics (which consists of fingerprints, digital photographs, and signatures), have a background check performed, pass the exams, and be interviewed by USCIS before the final step occurs: their Oath Ceremony. During the Oath Ceremony, LPRs take the Oath of Allegiance to the United States before a designated USCIS official or federal judge. This beautiful patriotic service is the final step, after which the person is issued a Certificate of Naturalization. 

The naturalization process allows our nation to continue weaving new immigrants into the rich and diverse fabric that makes up the U.S. 

However, the Department of Justice can initiate either civil or criminal denaturalization proceedings against a naturalized U.S. citizen under certain scenarios outlined in 8 USC section 1451(a). If the individual is accused of “illegally procured” naturalization, it means the DOJ suspects the person was not eligible for naturalization because not all of the statutory requirements were met. Additionally, a person may face denaturalization if naturalization was obtained by concealment of a material fact or willful misrepresentation; however, whether the concealment was “material” or “willful” are often at the heart of the debate. 

The DOJ can also seek to denaturalize a person who becomes a member or affiliated with the Communist Party, another totalitarian party, or a terrorist organization within the 10 years following the filing date for naturalization, on the basis that it shows the individual is not committed to the principles of the U.S. Constitution.

In any of the above scenarios, the federal government bears the burden of proof in civil denaturalization cases to show by “clear, convincing, and unequivocal evidence which does not leave the issue in doubt.”  

Whereas, if a criminal conviction is pursued, it must show “proof beyond a reasonable doubt” that the person violated 18 USC 1425, and the U.S. Supreme Court has unanimously held that only an illegal act that played a role in the person’s acquisition of U.S. citizenship can lead to criminal denaturalization. Maslenjak v. United States, 582 U.S. 335 (2017). Given the above, denaturalization is a complex trial process that results in lengthy litigation.   

From 2000 to 2017, denaturalization proceeding was exceedingly rare, with approximately 10 cases per year filed in this 18-year window, out of the 11.8 million individuals who successfully naturalized. 

In the past 9 years, over 300 denaturalization cases are estimated to have been filed, resulting in an average of 34 cases filed each year; however, the annual amount of naturalization approvals has also increased, with the U.S. welcoming 7.15 million naturalized citizens over the past 9 years. 

Rough estimates indicate that over 70 denaturalization cases have been filed by the DOJ since January 20, 2025, with more to come; however, this is still an extremely small percentage of people who are being charged with denaturalization statistically. 
Therefore, LPRs who have met their eligibility requirements for naturalization should feel encouraged to file, despite the recent “prioritizing” of denaturalization.

As U.S. citizenship confers many benefits, including the ability to vote, travel outside of the U.S. freely, and file immigration petitions for a broader range of family members, LPRs have considerable incentives to apply for naturalization. 

However, they should also scour their applications to ensure that all the information contained in it is correct and that any documentary evidence provided is accurate. 

I have seen official government documents issued with incorrect names, spellings, and dates. Could USCIS or the DOJ argue that such incorrect information or documentation is a “willful misrepresentation” or that the conflicting document helped conceal a “material fact” that lead to the naturalization? Perhaps. 

Thus, best practice dictates upholding the old adage of “trust but verify” before submitting any documentation along with an application for naturalization.

Nicole Mackmiller is an immigration law attorney with Pear Sperling Eggan & Daniels PC (PSED Law) in Ann Arbor.

Reprinted with permission from the WCBA periodical Res Ipsa Loquitur.

As August was Child Support Month in Michigan and child support touches a large segment of the Detroit legal community, I held a conversation with G. Bomani Gray for Coffee and Conversation.

By Zenell Brown

As August was Child Support Month in Michigan and child support touches a large segment of the Detroit legal community, I held a conversation with G. Bomani Gray for Coffee and Conversation.

Bomani Gray is the University of Michigan’s Project Director of the Coalition of Practitioners for Father Support. With the support of the University of Michigan School of Social Work, Bomani serves as the project director for the Michigan Action Plan for Father Involvement (MAP-FI), helping to create “Michigan’s Children with a Father-Fueled Future.”  

Bomani and I have known each other over a decade as our respective work paths families and child support crossed. While enjoying our morning beverages, Bomani shares his reflections on changing court practices, the value of Dad Cafes, and a vision for justice systems that recognize fathers as whole people and meaningful participants in their children’s lives.

Zenell: When we talk about fathers and the justice system, what do you most want court and legal professionals to understand?

Bomani: I would like to see greater understanding — and perhaps greater compassion — for fathers who interact with the justice system. That requires court and legal professionals to look beyond their personal experiences and the stereotypes they may commonly encounter.

Some fathers are doing the very best they can under difficult circumstances. We need to recognize that traditional views of fathers were often shaped by earlier expectations about gender and family roles. Those expectations do not always reflect the realities of today’s families or the complexities of an individual father’s life.

Zenell: Are you seeing changes in how courts engage with fathers?

Bomani: Yes. Courts are doing better, particularly in the language they use when speaking to and about fathers. We are also seeing courts consider responses other than incarceration when fathers are unable to meet their child-support obligations.

It is encouraging that the old “lock them up” approach and the broad labeling of fathers as “deadbeat dads” are no longer as accepted as they once were. There is also greater support for fathers who genuinely want to be engaged and involved in their children’s lives.

Zenell: Tell me about the network supporting this work.

Bomani: Our organization has approximately 300 representatives. The network includes fatherhood organizations, courts, governmental agencies, and other community partners. Bringing these groups together creates opportunities to improve systems, strengthen relationships, and better support fathers and families.

Zenell: One of the initiatives you mentioned was the Dad Cafes. What are they?

Bomani: For the past three years, we have held Dad Cafes to provide fathers with a welcoming, non-adversarial introduction to the court system. The cafes allow fathers to engage with court and child-support professionals in a setting that is very different from a courtroom.

The sessions help dispel common myths about the courts — including beliefs that the system is inherently biased against fathers or primarily interested in locking people up.

Zenell: Where have the Dad Cafes been held?

Bomani: Sessions have been held in Calhoun County, Grand Rapids, and Wayne County. Approximately four to six sessions are offered each year, with the involvement of the Office of Child Support.

Zenell: What difference have these conversations made?

Bomani: They have helped build better relationships between fathers and court systems. When fathers meet court professionals in a less formal environment, they can ask questions, better understand court processes, and begin to see the people within the system differently. Court professionals also gain an opportunity to listen directly to fathers and better understand their experiences.

Zenell: What is your broader vision for this work?

Bomani: The vision is to reimagine court systems in which families are at the center and fathers are supported in playing meaningful roles in their children’s lives.

To achieve that vision, we must move beyond traditional assumptions and negative stereotypes about fathers. We must be willing to see the whole person and recognize the complexities of fatherhood including how race, socioeconomic circumstances, family history, access to resources, and other human dimensions may shape a father’s experiences.

Ultimately, this is about building court systems that see fathers not simply through the problems that brought them to court, but as parents who may need information, support, accountability, and a meaningful opportunity to remain involved in their children’s lives.

Zenell: Bomani, it’s always a pleasure talking with you. Where can lawyers and court professionals who work with dads find more info on MAP-FI?

Bomani: www.Map-fi.org 

Joining a health system through acquisition can offer meaningful benefits to a physician practice, including enhanced operational support, access to capital, improved payer contracting leverage, and long-term sustainability. 

Joining a health system through acquisition can offer meaningful benefits to a physician practice, including enhanced operational support, access to capital, improved payer contracting leverage, and long-term sustainability. 

At the same time, these transactions involve a complex and highly regulated legal landscape. Physician owners who understand the key legal and operational issues early in the process are better positioned to manage risk, preserve value, and avoid post-closing surprises.

Outlined below are several primary legal considerations physician practices should be aware of when evaluating a potential acquisition by a health system.

Transaction Structure and Its Implications

One of the earliest and most important issues in any acquisition is how the transaction is structured. Health system acquisitions of physician practices are most commonly structured as either an equity purchase or an asset purchase.

In an equity transaction, the health system acquires the practice entity itself, including its assets and liabilities. In an asset purchase, the health system acquires only designated assets, such as select equipment, real estate, and contracts, while the practice generally retains responsibility for historical liabilities unless expressly transferred.

From the physician’s perspective, an equity transaction may offer operational continuity and administrative simplicity. However, equity deals also expose the health system to potential compliance and billing risks, which often leads to heightened scrutiny. As a result, health systems frequently prefer asset purchases. Physicians should be prepared for this and understand that, in asset transactions, certain legacy obligations, such as contracts, accounts receivable, equipment, real estate, or medical record retention duties, may remain with the practice post-closing.

Transaction structure also affects taxes, deal timing, and how liabilities are allocated. Early coordination with legal and tax advisors is critical to ensure the structure aligns with the physicians’ financial and risk-management objectives.

Stark Law and Anti-Kickback Compliance

Physician practice acquisitions are heavily influenced by federal fraud and abuse laws, most notably the Physician Self-Referral Law (“Stark Law”) and the Anti-Kickback Statute. These laws directly affect both the purchase price paid for the practice assets and the compensation physicians will receive following closing.

At a core level, these laws require that compensation and other remuneration be consistent with fair market value, commercially reasonable, and not determined in a manner that takes into account the volume or value of referrals. Fair market value generally reflects the price that would be paid in an arm’s-length transaction between unrelated parties, while commercial reasonableness focuses on whether an arrangement serves a legitimate business purpose even absent referrals.

From the physician’s standpoint, it is important to understand that a strong referral base or anticipated downstream health system revenue cannot be used to justify higher purchase prices or compensation. Health systems are understandably cautious in this area, and regulators regularly scrutinize practice acquisitions to ensure they are not, in substance, payments for referrals.

Physician Employment and Compensation Expectations

Employment arrangements are a central component of most physician practice acquisitions. Following closing, physician owners typically transition from practice owners to employed physicians of the health system. These agreements must comply with Stark and related regulatory requirements, which may impose constraints on compensation models.

Physicians should be mindful that informal or early compensation discussions may later need to be recalibrated to ensure compliance. For practices where physician owners are critical to long-term success, health systems may offer retention-focused incentives, such as sign-on bonuses tied to service commitments.

Physicians should also be prepared to evaluate compensation models used by the health system, such as base salary plus productivity or quality-based incentives and consider how those models compare to prior practice economics. For example, in an independent group practice, physicians often have more flexibility in how they’re paid, including sharing in the practice’s overall financial success. That flexibility exists under special federal rules for independent practices and are often not available after a health system acquisition. 
Once physicians become system-employed, compensation is typically tied to the physician’s personal productivity. Understanding these structures early can help manage expectations and support a smoother transition.

Licensure, Enrollment, and Change-of-Ownership Issues

Practice acquisitions frequently trigger licensure, credentialing, and payer enrollment consequences. These may include change-of-ownership filings, commercial payer notices, reassignment of billing privileges, credentialing updates, accreditation changes, and, in certain circumstances, certificate of need approval.

Physicians should be aware that failure to address these requirements well in advance of closing can lead to reimbursement delays or interruptions after the transaction closes. Early coordination between the practice, the health system, and legal counsel is essential to maintaining continuity of patient care and cash flow.

Due Diligence and Compliance Considerations

Health systems will typically conduct extensive due diligence before acquiring a physician practice. This process often includes reviews of billing and coding practices, compliance programs, documentation standards, litigation/claims history, and exclusion screenings.

From the physician’s perspective, preparation is key. Organizing records, understanding historical compliance practices, and anticipating areas of scrutiny can help the process move more efficiently. Health systems frequently engage independent third-party valuation firms to support fair market value determinations, and physicians should expect detailed operational inquiries as part of that process.

Physicians should also understand how medical records and accounts receivable will be handled post-closing. In asset transactions, responsibility for pre-closing accounts receivable and record retention may remain with the selling practice unless expressly transferred, which can affect post-closing administrative obligations.

Real Estate, Equipment, and Ancillary Arrangements

Most physician practices maintain office leases, own or lease equipment, and participate in ancillary service arrangements. Physicians should expect the health system to carefully evaluate which leases, equipment, and contracts it intends to assume.

In some cases, the health system may not assume all existing arrangements, particularly if they do not align with system standards or strategic objectives. These obligations may remain with the practice or require renegotiation. Early and candid discussions regarding real estate, equipment, and ancillary services can help avoid misunderstandings and last-minute complications.

Employment and Staff Transition Issues

The treatment of non-physician staff depends heavily on transaction structure. In an equity transaction, existing employment relationships generally continue, though the health system may assume historical employment-related liabilities. In an asset purchase, staff do not automatically transfer, and new employment offers may be required.

Physicians should understand how staff benefits, compensation, accrued leave, and seniority will be addressed and communicate clearly with employees to maintain morale and continuity of care.

Conclusion

Acquisition by a health system can be a transformative opportunity for a physician practice, but it is not merely a financial transaction. Many of these issues reflect system-level compliance and operational realities rather than negotiating positions, and early transparency benefits both physician practices and health systems alike.

Legal, regulatory, and operational considerations play a central role in shaping deal structure, compensation, and post-closing success. Physicians who engage experienced legal and financial advisors early, understand the health system’s compliance constraints, and approach the process strategically are best positioned to achieve a favorable outcome.

————————

Thomas W. Huyck is a senior attorney with Foster, Swift, Collins, & Smith PC. He has 25 years of experience advising health systems, physician groups and businesses.  Drawing on experience as both outside and in-house counsel, Huyck guides clients through the intricacies of complex federal and state regulatory frameworks as well as handling merger and acquisition (M & A) transactions.

 Injunctions, Innovation, and the Problem We Can’t Price
There is a shift happening in patent law, but its real impact will not be felt in policy statements ... it will be felt in federal courtrooms.

 Injunctions, Innovation, and the Problem We Can’t Price

There is a shift happening in patent law, but its real impact will not be felt in policy statements ... it will be felt in federal courtrooms.

Recently, the United States Patent and Trademark Office (USPTO) and the Department of Justice (DOJ) filed a Statement of Interest in Collision Communications, Inc. v. Samsung Electronics Co., reinforcing a principle that has quietly eroded over time: a patent is a right to exclude, and injunctions are central to that right.

At first glance, that sounds obvious, patents have always been framed this way. But in practice, particularly over the last fifteen years, that right has softened. For many patent owners, the realistic outcome of enforcement has not been exclusion, it has been compensation.

This latest filing suggests a course correction and with that correction comes a harder question: who should actually have the power to shut down a competing product?

The Legal Foundation: The Right to Exclude

The statutory framework is clear. Under 35 U.S.C. § 283, courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent.” That right, traces directly to the Constitution, which empowers Congress to grant inventors exclusive rights to promote the progress of science and useful arts. U.S. Const. art. I, § 8, cl. 8.

“[The Congress shall have Power ... ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The government’s recent filing reinforces that patents are not merely economic instruments. They are property rights with exclusionary force. That framing matters because in litigation, how a right is characterized often dictates the remedy that follows.

The eBay Framework and the Shift That Followed

Modern injunction analysis is governed by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). In eBay, the Supreme Court rejected both automatic injunctions and categorical denials. Instead, it imposed a four-factor equitable test:

• Irreparable harm

• Inadequacy of monetary damages

• Balance of hardships

• Public interest

That decision reshaped patent litigation. In theory, it restored balance and in practice, it often shifted outcomes toward damages. 

Over time, courts became more hesitant to grant injunctions, and operating companies became more comfortable treating infringement as a manageable risk.

The result is what many now describe as efficient infringement where the question is not “Can we do this?” but “What will it cost if we do?” The DOJ and USPTO appear to be pushing back on that dynamic.

Not All Patent Owners Are the Same

Any discussion of injunctive relief inevitably runs into the issue of non-practicing entities (NPEs). But that label hides important distinctions.

Universities, for example, are non-practicing entities. They conduct foundational research, often with federal funding and rely on licensing to bring that research to market. 

Without meaningful enforcement rights, including the possibility of injunctions, their model weakens. Why take a license early if competitors can simply use the technology and deal with damages later?

Licensing companies occupy a more nuanced middle ground. Some aggregate fragmented rights and facilitate access to innovation. Others rely more heavily on enforcement as a business model.

Then, there are patent assertion entities often labeled “trolls” that raise legitimate concerns. These entities may assert patents late in a product lifecycle, targeting companies after products are already deployed and redesign is costly.

Treating all of these actors the same under an injunction framework is both impractical and inconsistent with how the innovation ecosystem actually works.

The “Gotcha” Problem and Enforcement Timing

For many operating companies, patent enforcement does not feel like a predictable risk, it feels like an ambush.

A patent surfaces after a product is launched. Claim scope becomes clear only through litigation. The accused feature cannot easily be redesigned. And the assertion arrives at the moment of maximum leverage.

This creates what can fairly be described as a “gotcha” dynamic where timing, not just merit, drives outcomes. That reality complicates the equitable analysis because while the legal right may be valid, the manner in which it is asserted raises legitimate questions about fairness and market impact.

A Useful Contrast: Standard Essential Patents (SEPs)

Standard Essential Patents (SEPs) provide a helpful comparison. SEPs cover technologies necessary to comply with industry standards: Wi-Fi, 5G, USB and are typically disclosed through standard-setting organizations. Their owners generally commit to licensing on fair, reasonable, and non-discriminatory (FRAND) terms.

This creates predictability. Companies know the landscape; they can anticipate licensing obligations. And disputes are more likely to center on pricing than exclusion.

In that environment, courts are often less inclined to grant injunctions because monetary compensation is expected to be adequate. The contrast is telling: where predictability increases, the need for injunctive relief often decreases.

The Ongoing Debate: Is This About NPEs?

Some commentators have suggested that the DOJ/USPTO filing places a “thumb on the scale” in favor of non-practicing patentees—particularly those who rely on enforcement rather than commercialization. (See e.g., USPTO and DOJ Statement of Interest in Collision Communications: Another Thumb on the Scale in Favor of NPE Patent Plaintiffs; Rich, Joshua, March 5, 2026, PatentDocs.org).

That concern is not without merit. Strengthening the availability of injunctive relief increases leverage. And leverage can be used in ways that feel disconnected from innovation in the traditional sense.

But focusing solely on NPEs risks missing the deeper issue. The concern about NPE leverage is real but it may be a symptom, not the cause.

The Valuation Problem That Nobody Wants to Solve

At the center of this debate is a more fundamental problem: we do not have a reliable way to value patents. Patent damages are built on hypothetical negotiations, what willing parties would have agreed to in a world that never actually existed.

Courts and experts construct models. Assumptions are layered on assumptions. Outcomes vary widely. And everyone involved, patentee, defendant, expert, and judge, knows that the number, at best, is an approximation.

That creates a structural tension within the eBay framework. If monetary damages cannot be calculated with confidence, how can courts conclude they are “adequate”? And if they are not adequate, the logic begins to tilt toward injunction.

Which raises an uncomfortable question: are we relying more heavily on injunctive relief not because harm is truly irreparable but because valuation is inherently uncertain?

Irreparable Harm and Doctrinal Drift

Under eBay, irreparable harm is supposed to be specific and demonstrable. But in practice, arguments have expanded to include:

• Loss of market position

• Competitive disadvantage

• Uncertainty in future licensing

• Difficulty in quantifying harm

At some point, the line begins to blur. Irreparable harm risks becoming less about the nature of the injury and more about the limits of economic modeling. If that happens, the system begins to drift toward something eBay rejected: a soft presumption of injunction.

Litigation Implications Going Forward

If courts take the DOJ/USPTO signal seriously, we are likely to see changes in how cases are litigated. Plaintiffs will focus more heavily on:

• Non-quantifiable harm

• Market dynamics

• Loss of control over technology

Defendants will emphasize:

• Lack of notice

• Predictability

• Timing of enforcement

And courts will likely respond by crafting more nuanced remedies, tailored injunctions, delayed enforcement, or structured licensing opportunities.

Let’s call it what it is: we built a system that demands precision in valuing innovation—while dealing with assets that resist precision. Now courts are being asked to choose between two imperfect tools:

• Monetary damages that are inherently uncertain

• Injunctive relief that can reshape markets

The DOJ and USPTO are not trying to empower any particular class of patent holder. They are trying to restore credibility to the right to exclude. But once that right is strengthened, it applies across the board.

Closing Thoughts

The Constitution did not promise inventors a royalty, it promised them: an exclusive right. The challenge now is ensuring that right:

• Rewards innovation,

• Supports competition,

• And does not become a tool for strategic surprise

Maybe the real issue isn’t injunctions at all. Maybe it’s that we never solved the problem of valuing innovation with the level of certainty the law demands.

And now, faced with that uncertainty, courts are being asked to choose between imperfect math, and market exclusion. As courts grapple with uncertain patent valuation, injunctions are regaining relevance. 

   ___________________

Mikhail “Mike” Murshak is a licensed patent attorney and experienced Intellectual Property (IP) attorney at Foster, Swift, Collins, & Smith PC.  He specializes in patent, trademark strategy and acquisition, and general IP and business counseling including preparation, prosecution, and licensing.

The Rules Enabling Act, 28 U.S.C. § 2071-2077, authorizes the Supreme Court to prescribe general rules of practice and procedure, and rules of evidence for the federal courts.  Along with the Act, the rulemaking process is governed primarily by the Procedures for the Judicial Conference’s Committee on Rules of Practice and Procedure and its Advisory Rules Committees, which are made up of judges, law professors, and practicing lawyers.  Congress, through the Act, retains the ability to review and reject any rule adopted by the Supreme Court.

Several amendments to the Federal Rules of Civil Procedure (FRCP) took effect on December 1, 2025, while a new set of proposed amendments closed their public comment period in February 2026. Also, last Fall, the Advisory Committee’s agenda discussed several rules proposals, which may come to fruition soon.

It is axiomatic that federal court practitioners should be aware of the changes to the Federal Rules, along with keeping abreast of the proposed changes, so that they can most effectively represent their clients in federal court.

I. Amendments Effective December 1, 2025

1. Rule 26(b)(5)(A) – Privilege Logs and Early Case Management

The December 2025 amendments emphasize that courts should address the method and timing of privilege log compliance at the outset of litigation. This change aims to reduce discovery disputes and streamline privilege log production—an increasingly burdensome task in large scale and class action litigation.

2. New Rule 16.1 – Multidistrict Litigation (MDL) Case Management

The most significant December 2025 development is the adoption of Rule 16.1, the first rule dedicated specifically to MDL case management. It provides a structured framework for:

• Leadership appointments

• ESI preservation and production

• Coordination of discovery

• Early identification of common vs. individual issues

Given that MDLs now comprise nearly 70% of the federal civil docket (driven largely by product liability, consumer, and personal injury lawsuits), the amended Rule 16.1 modernizes the management of complex litigation and directly affects class actions frequently consolidated into MDLs.

II. Proposed Amendments with Public Comment Closed February 2026

The Advisory Committee’s proposed FRCP amendments, for which the comment period closed February 16, 2026, include the following:

1. FRCP 7.1 – Expanded Corporate Disclosure

The proposed amendment would require disclosure of business organizations that directly or indirectly own 10% or more of a party. This proposed amendment enhances transparency and assists courts in evaluating conflicts of interest.

2. FRCP41(a) – Clarifying Voluntary Dismissal

The amendment clarifies that only the remaining parties must sign a stipulation of dismissal and that the dismissal may apply to the entire action or specific claims. 

3. FRCP 45(b) – Expanded Subpoena Service Methods 

The proposed amendment would broaden permissible methods of serving subpoenas, easing service on corporate representatives and individuals in restricted access locations. 

III. Potential Future Amended Rules Proposals

• At its October 2025 meeting, the Advisory Committee discussed, among other items, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding.  While no specific proposed amendments are before the committee at this stage, the committee’s agenda reflected growing interest and potential amendments to FRCP 23, which most notably align with the recent amendment to Rule 16.1 directed to MDL case management (which are often tied to class actions). Among the potential amendments discussed by the Committee:

• Superiority Requirement (Rule 23(b)(3):  The potential amendment would expressly allow courts to consider non-litigation remedies, such as voluntary refunds, recalls, payments, etc., in deciding whether a class action would be superior to other methods for resolving disputes.  

• Incentive Awards:  The Committee is considering whether to amend Rule 23 to expressly permit incentive awards for class representatives.

• Pre-Certification Rule 23(e) Settlement Approval Procedures:  The Committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s).

As to third-party litigation funding, the proponents of a new rule have suggested that it be modeled on the portion of FRCP 26(a) which requires disclosure of insurance policies providing coverage for a judgment against defendants. In the meantime, Congress is also looking to address litigation funding, via proposed legislation.  

Again, these topics remain under active study and may appear in future rule-making cycles.   It will be worthwhile to monitor the progress of these proposals.  

Seitz is the Co-Chair of the WCBA Federal Practice Section and a member of Dykema Gossett PLLC, where serves as the Practice Leader for the Financial Services Litigation Group.  His practice primarily focuses on trial, appellate, and class action defense, with a special focus on representing banks, financial services, and media companies, along with local governments, public officials, and associations. He regularly appears and practices in state and federal courts throughout the country, including the United States Supreme Court.

Reprinted with permission from the Washtenaw County Bar Association newsletter Res Ipsa Loquitur.