.

Experience

Representative Work

Recent and Ongoing Work

  • Defended medical services company and its directors and officers in a dissenter’s rights claim brought by medical doctor dissatisfied with the terms of a merger agreement, prevailing on all claims after bench trial. (Riverside Superior Court 2021)
  • Obtained motion for summary judgment in defeating $10 million fraud claims against cannabis company in connection with asset purchase agreement of distribution company. (Los Angeles Arbitration. 2023)
  • Defended private equity client against claims brought by an ousted CEO against the company and two of its executives, wherein the filing of an anti-SLAPP motion led to voluntary dismissal of breach of fiduciary duty and all remaining claims. (Orange County Superior Court 2024)
  • Defended medical device company in connection with claims by former CEO asserting right to royalties from post-termination licensing transaction. (Orange County Superior Court 2026)
  • Brought claims against former employees of media company for stealing data and accounts receivable in connection with starting a competing business. (U.S. District Court for the Central District of California 2024)
  • Defended European manufacturer on claims of breach of warranty arising from million-dollar printing press. (Orange County Superior Court)
  • Defeated anti-SLAPP challenge brought by a homeowner association in response to client’s lawsuit and affirmed unanimously by the appellate court. (Orange County Superior and California Court of Appeal 2018-20)
  • Defeated class action claims brought against beverage distributor and senior executives alleging violation of California consumer deception statutes with respect to label and advertising statements. (U.S. District Court for the Southern District of California 2020)
  • Lead counsel for a Korean public company which became a minority shareholder in a U.S. biomedical research venture. Commenced a lawsuit in Delaware Court of Chancery asserting both direct and derivative claims for breaches of fiduciary duty, aiding and abetting breaches of fiduciary duty, contract theories and outlining the self-dealing of corporate insiders and co-venturer research university. The case was settled along favorable terms within a few months of the filing. (Delaware Court of Chancery and California Superior Court 2018)
  • Represented trucking company in litigation in a protracted dispute with landlord and tankwashing service provider. Case settled on favorable terms a few weeks before trial. (U.S. District Court for the Central District of California 2018)
  • Lead counsel in a probate court trial involving claims relating to changes made to estate planning documents, challenges to testamentary capacity and claims of undue influence by family member. Based on the expert testimony and other evidence presented at trial, the client prevailed on the principal issues, including the validity of the estate planning documents. (Orange County Superior Court 2017-18)
  • Lead trial counsel in a $30 million-dollar food contamination case brought against the supplier of food packaging used in the product. The case involved dozens of party and third witnesses, and working with microbiology and food safety experts to determine the cause of the contamination. Claims were asserted between the co-manufacturer, packaging supplier and distributor. Following a two-and-a-year engagement, the matter settled on favorable terms to the client. (Pennsylvania State Court 2014-16)
  • Represented broker of renewable fuel credits (RINs) in a $10 million lawsuit by a trader alleging that the broker breached fiduciary duties and engaged in constructive fraud and fraudulent concealment in connection with “sleeve” transactions of fraudulent RINS. Following a bench trial, judgment was entered in favor of the broker on all claims. Second-chaired the trial, including a two-day cross-examination of the trader and several other witnesses. (U.S. District Court for the Central District of California (2014-15) See Petro-Diamond Incorporated v. SCB & Associates, LLC, 122 F.Supp.3d 949 (2015)
  • Worked on litigation team with other Dorsey partners in obtaining injunctions against enforcement of California regulations based on federal preemption principles including a matter that resulted in a unanimous decision by the U.S. Supreme Court. (U.S. District Court for the Eastern District of California, U.S. Court of Appeals for the Ninth Circuit, U.S. Supreme Court 2012 and 2013)

Class Action and Consumer Representative Litigation

  • Defended multiple cosmetic manufacturers in consumer class action lawsuits and claims relating to representations about its product, slack-fill violations, allegation concerning FDA approvals, violation of consumer protection statutes, ADA access cases. (Various California Courts)
  • Represented electronics manufacturer in a putative class action lawsuit alleging violations of California’s Song-Beverly Act relating to its policies and practices of providing video camera repairs. The District Court’s order granting a motion to dismiss was affirmed by the Ninth Circuit Court of Appeals, 2016 U.S. App. LEXIS 13607. (2016)
  • Obtained dismissal of putative class action lawsuit alleging manufacturers engaged in violations of state and federal antitrust laws. (U.S. District Court for the Southern District of California 2013)
  • Defeated on the merits a class action lawsuit relating to compliance with California law governing shipping and handling charges for offers of free merchandise. (Orange County Superior Court 2013)
  • Obtained dismissal of class action lawsuit alleging pharmacy violated privacy laws relating to the handling of prescription information in connection with its use of de-identified information. (U.S. District Court for the Southern District of California 2009)

Product Liability Litigation

  • Represented manufacturer and distributor of baby carrier in lawsuit in connection with alleged defects and injuries to infant. (U.S. District Court for the Northern District of California 2018)
  • Represented product sellers in more than 25 Prop 65 cases concerning alleged chemical exposures from products ranging from purses, backpacks, electronics and various household items. (Various California Courts 2000-present)
  • Represented a Fortune 500 business solutions company for over 20 years in dozens of product warranty cases throughout California including multiple appeals. (2000-present)
  • Represented Canadian technology company as nationwide counsel in claims brought by customers alleging defects in RV electrical systems. (Various Courts in the U.S. 2002-2008)
  • Represented surgical implant distributor in a breach of warranty claim against manufacturer. (San Diego Superior Court 2005)
  • Obtained reversal of multi-million dollar default judgment entered against a medical device manufacturer in case alleging personal injury (default judgment entered prior to the firm’s entry into the case) and thereafter obtained a dismissal of the entire case. (Solano County Superior Court 2002-2007)

Shareholder Derivative and Other Corporate Governance Litigation

  • Lead counsel to founder of biomedical company in connection claims against management relating to his ouster, whistleblowing statute, breach of fiduciary duty, access to books and records, wrongful termination. The case settled on terms favorable to the client. (Orange County Superior Court, 2022)
  • Lead counsel in shareholder claims against management of aerospace company following his termination by his co-founder, asserting breach of fiduciary duty, appointment of receiver, constructive trust and equitable accounting under Delaware law in a AAA proceeding in New York City. The case settled on terms favorable to the client. (AAA Arbitration 2021)
  • Lead counsel for developers of a $1 billion Las Vegas commercial real estate project, defending against claims brought by disgruntled investors in multiple jurisdictions. Following eight years of litigation, including actions brought in arbitration and venues. The case settled on favorable terms to the client. (New York Supreme Court, Los Angeles Superior Court, Delaware Court of Chancery 2008-2016)
  • Lead counsel for the developer of a 15-story, 114-unit residential condominium in Brooklyn on claims by investors seeking to enforce alleged guaranty of construction loans. (U.S. District Court for the Eastern District of New York 2012-16)
  • Represented employees who left their company to start a competing business and were sued by former employer for misappropriation of trade secrets. Brought counterclaims for antitrust and violation of federal procurement regulations, which were promptly resolved with a “walkaway” settlement and mutual releases. (Los Angeles County Superior Court 2012)
  • Represented British Virgin Islands company in arbitration of a dispute over escrowed funds following acquisition of a target corporation. (AAA Arbitration 2013)

China-Related Litigation

  • Kent frequently works with colleagues in Dorsey’s China offices to defend Chinese companies that are sued or need to bring claims in the U.S.
  • Defended Chinese manufacturers in defending against claims brought by U.S. distributor alleging breach of non-circumvention provisions. (U.S. District Court for the Central District of California 2025)
  • Led a team of lawyers in successfully defending a Chinese company and its CEO in a complex shareholder derivative lawsuit filed in San Francisco. Prevailed on a motion to dismiss and obtained sanctions against opposing counsel for filing a frivolous claim. Filed a parallel lawsuit against the plaintiff/minority shareholder which resulted in a $12 million judgment in favor of the corporation and against the shareholders that had brought the San Francisco lawsuit. (U.S. District Court for the Northern District of California and Superior Court of Fulton County, Georgia 2013)
  • Represented Chinese travel broker in state and federal lawsuits brought by a competitor alleging misappropriation of trade secrets, wrongful solicitation of employees and copyright infringement of marketing materials. In response to counterclaims, the plaintiff which initiated the action voluntarily dismissed its own claims and paid a substantial portion of attorney fees incurred by the client as part of a settlement. (U.S. District Court for the Central District of California and Los Angeles Superior Court 2016)
  • Defended Chinese food and beverage company in connection with direct and derivative shareholder claims brought by minority investors alleging breach of fiduciary duty and self-dealing. Case settled on favorable terms. (Los Angeles Superior Court 2018)

First Amendment and Other Speech Related Litigation Including Anti-SLAPP Challenges

  • Represented two doctors/bloggers in a defamation action against multiple defendants who attacked the doctors’/bloggers’ qualifications and engaged in related tortious conduct. Defeated anti-SLAPP motion in trial court and order was affirmed on appeal. (Orange County Superior Court, 2015 Settlement)
  • Represented architect and interior design professional on claims of defamation against home owner association for statement. (Pre-Lawsuit Settlement)
  • Defended individual sued by candidate for public office asserting claims for defamation and other torts. Plaintiff dismissed the lawsuit with prejudice hours before the Court of Appeal oral argument on the anti-SLAPP challenge. (San Diego Superior Court and California Court of Appeal 2016-2017)
  • Worked with two other Dorsey partners representing publisher Penguin Group (USA) LLC in consumer fraud class action brought on behalf of the California residents who purchased Lance Armstrong’s book, It’s Not About the Bike. Case dismissed with prejudice and no liability to client on basis of First Amendment principles and California’s anti-SLAPP challenge. Stutzman v. Armstrong, et al., 2013 U.S.Dist. LEXIS 129204. (E.D. Cal., Sep. 9, 2013) (counsel for publisher defendant)
  • Multiple trial court and appellate wins under California’s anti-SLAPP statute, both as the moving party and opposing party.

Securities and Financial Institutions Litigation

  • Represented financial advisor in a lawsuit alleging breach of fiduciary duty and conflict of interest in connection with an accredited investor’s investment losses. (Orange County Superior Court 2018-19)
  • Successfully resolved various disputes and issues arising in connection with an investigation by the SEC and the FDIC following a client’s acquisition of a failed bank in California. (2010)
  • Represented broker-dealer in multiple arbitrations brought by customers alleging unsuitability of investments and similar claims. (experience with NASD, NYSE and FINRA arbitrations)
  • Represented Canadian financial institution in a class action, prevailing on a motion to dismiss for lack of personal jurisdiction.
  • Represented securities clearing firm in successfully asserting claims against venture capital firm that failed to pay for multi-million stock purchase; also filed claims against the customer’s accountant for fraudulent statements made in connection with the transaction and the customer’s broker. (NASD arbitration)
  • Represented broker-dealer in multi-state actions arising from sale of annuities issued by former affiliate. Actions were brought by ten separate state guaranty associations to recover payments to policyholders. (Various Courts 1998)
  • Obtained dismissal of federal class action against venture capital firm and acquiring corporation for alleged securities law violations in connection with tender offer. (U.S. District Court for the Northern District of California 2002)
  • Successfully defended national bank in action for alleged unfair business practices regarding safe deposit box access by successor trustees. (U.S. District Court for the Central District of California 2008)

Entertainment Litigation

  • Represented technology company in connection with a licensing dispute relating to a $4.5 million license of entertainment content from Hasbro Studios. (U.S. District Court for the Central District of California 2018)
  • Represented management company in disputes concerning commissions from Guns N’ Roses following the breakup of the band. (U.S. District Court for the Central District of California 2005-2006)
  • Represented musical band *NSYNC securing dismissal of action claiming copyright infringement relating to the group's alleged sale of merchandise using photos of plaintiff’s puppets created for the American Music Awards. (U.S. District Court for the Central District 2004)

Indian & Gaming

  • Represent various Native American tribes in litigation relating to tribal matters, including contracts with gaming companies, internal investigation, disputes with outside vendors and other business enterprises.
  • Represented casino management companies in litigation brought by Native American tribe alleging a variety of contract, tort and antitrust claims. Case settled on favorable terms. (San Diego County Superior Court 2006-2011)
  • Obtained dismissal of a counterclaim in U.S. District Court based on tribal client’s sovereign immunity. (U.S. District Court for the Central District of California 2009)
  • Dorsey represented a California Tribe and development and gaming management company in connection with a series of lawsuits filed in opposition to the development of a casino. The lawsuits were brought by a variety of individuals and entities ranging from dissenting tribal members to neighborhood organizations opposed to the project. Parallel and overlapping lawsuits were filed in state and federal courts as well as tribal courts and required coordinating with California and federal agencies such as CalTrans, the California Attorney General, and the Bureau of Indian Affair on matters including highway design, archeological and cultural objections, legitimacy of tribal elections, federal recognition of the tribe, and environmental impact concerns. (San Diego Superior Court, U.S. District Court for the Central District of California 2007-2013)
  • Represented tribal entities in claims relating to arm-of-the-tribe doctrine and whether a business entity formed by the tribe enjoys sovereign immunity. (Various Courts 2016-2017)

Firm Highlights

News

Dorsey Recognized in Inaugural 2026 IAM/WTR Copyright 1000

Dorsey & Whitney LLP is pleased to announce its recognition in the inaugural edition of the Copyright 1000: The World’s Leading Copyright Professionals, published by IAM and World Trademark Review (WTR). Nine Dorsey attorneys were individually recognized, and the Firm’s Denver, Minneapolis, New York, Salt Lake City, and Seattle offices were recognized in the firm rankings. The following Dorsey attorneys were recognized in the inaugural guide: Lindsey Sadler Gregory Tamkin Charlene Krogh Evan Everist Jeffrey Cadwell Fara Sunderji Bruce Ewing Catherine Parrish Lake J. Michael Keyes The Copyright 1000 is the first dedicated ranking focused solely on the world’s leading copyright practitioners. The guide identifies leading copyright firms and practitioners across key jurisdictions worldwide. Dorsey’s intellectual property attorneys advise clients on a wide range of copyright matters, including protection, enforcement, licensing, litigation, transactions, and issues involving emerging technologies and digital content. The inaugural Copyright 1000 rankings are published by IAM and WTR.

News

Dorsey’s London Corporate Practice and Partners Earn Chambers UK 2027 Rankings

Insights

The Supreme Court Update - October 8, 2026

On September 29, 2026, the Supreme Court granted certiorari in one case: Department of Homeland Security v. D.V.D., No. 26-426: This case concerns the Trump Administration’s “third-country removal” procedures, where immigrants are deported to countries not listed in the removal orders. In granting certiorari, the Court granted the Government’s application to stay a lower court decision halting the practice, which will allow third-country removals to continue pending resolution of the case. The issues presented are: (1) Whether the district court had jurisdiction over respondents’ claims; (2) whether the district court had authority to enter class-wide declaratory relief and APA vacatur under 8 U.S.C. § 1252(f)(1); (3) whether the Government’s guidance on third-country removals is unlawful under 8 U.S.C. § 1231(b), the due process clause, or FARRA/CAT and its implementing regulations; and (4) such other questions that the Government determines are appropriate for the proper disposition of the case. On October 1, 2026, the Court granted certiorari in three additional cases: Rhoney v. Barbosa da Cunha, No. 26-104: Immigration officials detained Ricardo Aparecido Barbosa da Cunha—a Brazilian citizen who had lived in the United States for approximately twenty years after entering without inspection—and denied him a bond hearing under 8 U.S.C. § 1225(b)(2)(A). The Second Circuit held that his detention was instead governed by § 1226(a), which permits release on bond, because § 1225(b)(2)(A)’s mandatory-detention requirement applies only to noncitizens apprehended while entering the country or shortly thereafter. The question presented is: Whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like Barbosa da Cunha, are present in the United States without having been admitted. Missionaries of St. John the Baptist, Inc. v. Frederic, No. 25-113: A Catholic religious organization sought to build a shrine to the Virgin Mary on land the organization owned adjacent to its church in Park Hills, Kentucky. Local zoning restrictions prohibited the proposed construction. The question presented is: Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a). Marschner v. Marschner, No. 25-1349: Under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), a veteran’s longevity-based retirement pay can be divided in a divorce, but retirement pay based on disability and retirement pay that was waived to receive disability pay are indivisible. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in a divorce settlement agreement?

Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

News

Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

News

Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

Insights

Energy Law: Month in Review - September 2026

Welcome to Dorsey’s Energy Law: Month in Review. We provide this update to our clients to identify significant developments in the previous month. Please reach out to any of the authors, listed above, to discuss these issues. Regulatory Developments Massachusetts Ratchets Up State and Local Regulation of AI Data Centers In early September, Governor Maura Healey of Massachusetts signed an executive order requiring that artificial intelligence data centers secure the approval of local communities as a precondition to proceeding with a given project. According to the terms of the order, data center developers will need to secure a “community benefits agreement” as a precondition to receiving permits from numerous state agencies, including the Department of Environmental Protection, the Energy Facilities Siting Board, and the Massachusetts Environmental Policy Act Office. Beyond requiring community benefits agreements, the order also mandates that developers mitigate utility costs to consumers, prohibits the use of nondisclosure agreements, and requires various state agencies to develop measures to limit data center impacts on the environment. North Carolina Regulators Decline Approval of Duke Energy Gas Turbine On September 18, 2026, North Carolina Utilities Commission (NCUC) denied Duke Energy’s application for a certificate of public convenience and necessity required to construct a gas-fueled combustion turbine at its Smith Energy Complex in North Carolina. The NCUC objected strongly to the $584 million price tag and noted that Duke appeared to be constructing the facility “based on anticipated data center customer additions.” The NCUC rejected that anticipated growth as “insufficiently reliable for the Commission to act at this point.” In rejecting Duke’s application, the NCUC also noted that Duke had signed the White House Ratepayer Protection Pledge, in which it represented that it would not shift data center costs to consumers. The NCUC observed that the record did not demonstrate how Duke “intends to adhere to its commitments under the Ratepayer Protection Pledge with regard to the Proposed Facility.” Notably, commission staff had actually supported the construction of the turbine, citing concerns about Duke’s reserve margins. The NCUC noted that it “understands the Public Staff’s expressed concerns,” but those concerns were outweighed by the NCUC’s reservations, including questions of demand. Department of Energy Approves Funds for Grid Improvement The U.S. Department of Energy (DOE) recently announced that it would fund 31 grid-improvement projects in 26 states. The funding initiative is part of the DOE’s “SPARK” initiative. The funding will include $1.9 billion in federal funding from DOE and $3.35 billion in recipient cost-sharing funding. The funds will go to projects designed to improve grid reliability and lower electricity costs. Recipients plan to reconductor over 1,500 miles of transmission lines and will deploy grid-enhancing technologies across approximately 21,000 miles. DOE stated that this initiative will make available over 23 additional gigawatts of electricity. Texas Moderates Rules Governing Data Center Interconnection The Texas Public Utility Commission adopted new regulations governing large-load interconnections. The rules impose a flat study fee of $100,000 for all proposed interconnections, which departs from the initial proposal to impose study fees using a tiered system based on project size. Additionally, the final rule eliminates the PUC’s previous proposal to impose a non-refundable interconnection fee of $50,000 per MW of contracted peak demand. The final rule also moderates the initially proposed regulations governing Electric Reliability Council of Texas (ERCOT) notifications for large-load customers’ non-utilized capacity. The proposed rules would have required notifying ERCOT within 30 days of missing a scheduled energization milestone by six months. The final rules, however, do not require informing ERCOT unless a scheduled energization milestone is missed by 24 months. FERC Denies TransAlta 202(c) Cost-Recovery Plan The Federal Energy Regulatory Commission (FERC) recently rejected TransAlta’s plan to recover $19.9 million in expenses stemming from a DOE order in which DOE prohibited TransAlta from retiring its coal-powered Centralia power plant. TransAlta had previously intended to retire the facility at the end of 2025. TransAlta’s cost recovery plan proposed spending an additional $23 million on repairs to continue operating the unit. FERC’s main objection had to do with geographic scope. TransAlta’s recovery plan called for recovering costs from California Independent System Operator (CAISO) and the Southwest Power Pool (SPP), but the DOE’s order requiring operation of the plant was designed to ensure reliability in the Northwest assessment area (Montana, Oregon, Washington, and parts of northern California and northern Idaho). Accordingly, FERC was unwilling to allow cost recovery from CAISO and SPP when the order that precipitated the additional costs only related to the Northwest assessment area. FERC informed TransAlta that it would only approve cost recovery from load-serving entities in the Northwest assessment area. FERC’s decision comes amid a rush of DOE emergency orders requiring the continued operation of coal-fired generating units. Litigation Appeals Court Upholds Washington Hydropower Plant With Caveats In a September 21, 2026, opinion, the Washington Court of Appeals largely upheld a Clean Water Act water quality certification by the Washington Department of Ecology for the Goldendale Energy Storage Project, a proposed pumped-water storage hydropower system adjacent to, but off-stream from, the Columbia River. A nonprofit (Columbia Riverkeeper) and the Confederated Tribes and Bands of the Yakama Nation appealed the certification, contending that it failed to impose necessary conditions and monitoring requirements to protect the water quality of the Columbia River. Most saliently, the plaintiffs argued that the project had the potential to leak 100 acre-feet of water per year into tributaries of the Columbia River. The Court of Appeals broadly rejected plaintiffs’ challenge to the state’s conclusion that “the project was designed not to leak.” That said, the Court of Appeals did reverse on one narrow issue. Specifically, the court determined that the state’s conclusion that “leakage from the project’s tunnels would be monitored and reported” was not supported by the evidence because the certification “does not explicitly require monitoring and reporting to determine whether there is any leakage.” Accordingly, the court remanded the matter to the state to impose monitoring and reporting requirements but otherwise affirmed the certification. Legislative Developments California Legislates Restrictions on Data Center Energy Use and Grid Costs On September 21, 2026, California Governor Gavin Newsom signed seven bills broadly regulating data centers in the state. SB 1168 directed the California Public Utilities Commission to assess the energy used by data centers. It also requires the PUC to pass costs of transmission and distribution upgrades and load increases on to data centers, rather than customers. SB 886 and SB 887 compel data centers to pay for infrastructure upgrade and generation costs, and wildfire mitigation costs, in addition to imposing environmental review. The statutes additionally increase local oversight of data centers. AB 1577 imposes a monthly reporting requirement that requires data centers to supply energy consumption and efficiency data to the California Energy Commission. AB 2383 contains incentives for data centers to use onsite clean energy generation. Finally, AB 2469 and AB 2619 require data center developments to assess water supply and develop a water scarcity plan. The statutes also mandate statewide water reporting as a precondition to obtaining and renewing business licenses.

Insights

EPA Limits Title V Re-Litigation of NSR Permits

Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. Under this framework, Title V is not a vehicle for re-examining underlying NSR permitting decisions. EPA does not intend to use the Title V process to revisit applicability determinations, emissions calculations, control technology determinations, permit conditions, or other issues resolved through the NSR permitting process. This principle applies regardless of the stage of the Title V proceeding; whether the NSR permit was issued pursuant to a SIP or FIP; the type of NSR issue involved; or whether the NSR permit is incorporated into Title V sequentially or concurrently. Limited Exceptions EPA recognizes several circumstances in which NSR issues may still be reviewed through the Title V program: No NSR permit was issued at all; The permit was issued without public notice and an opportunity for comment and judicial review; or The issue involves substantive overlap between Title V and NSR requirements, such as the adequacy of monitoring provisions. As a result, the rule does not insulate unpermitted projects or foreclose review of matters that independently arise under Title V. Key Regulatory Amendments The rule revises the definition of “applicable requirement” in 40 C.F.R. §§ 70.2 and 71.2. Paragraph (1): Where an NSR permit is issued with public notice and an opportunity for comment and judicial review, the permit establishes and defines the applicable SIP or FIP requirements for Title V purposes. Paragraph (2): All NSR permit terms, including terms contained in minor NSR permits, constitute applicable requirements that must be incorporated into Title V permits. Paragraph (4): CAA section 112(r)(1) (the General Duty Clause) is expressly excluded from the definition of “applicable requirement,” while section 112(r)(7) Risk Management Program requirements remain included. EPA also amended 40 C.F.R. §§ 70.8 and 70.12 to clarify that alleged defects in requirements established outside the Title V process generally do not provide a basis for EPA objection to a Title V permit or for a Title V citizen petition. General Duty Clause Exclusion The rule also codifies EPA’s longstanding position that the General Duty Clause in CAA section 112(r)(1) is not an “applicable requirement” for Title V purposes. EPA points to several considerations supporting that conclusion, including the distinction between the General Duty Clause and Title V permit terms, the provision’s origins in the Occupational Safety and Health Act’s general duty clause, and the different enforcement structures applicable to the General Duty Clause and Title V permit requirements. Importantly, excluding section 112(r)(1) from the definition of “applicable requirement” does not eliminate EPA’s authority to enforce the General Duty Clause independently of the Title V program. The final rule instead clarifies that the General Duty Clause need not—and should not—be incorporated into Title V permits as an applicable requirement. Practical Implications for Regulated Sources Greater Finality for NSR Permits  For projects requiring PSD, nonattainment NSR, or minor NSR permits, the permitting process becomes the primary forum for resolving disputes regarding applicability determinations, emissions calculations, control technology requirements, offsets, and permit conditions. Once an NSR permit is issued through a qualifying public process, regulated sources should face substantially reduced risk that those same issues will be challenged years later through Title V permit proceedings. Reduced Risk of Collateral Permit Challenges Stakeholders have sometimes sought to use Title V permit issuance, renewal, revision, or citizen-petition proceedings to challenge underlying NSR determinations. The final rule makes clear that Title V is not the appropriate vehicle for challenging whether an applicable requirement was correctly established in the first instance. This should reduce the risk of permit delays and uncertainty associated with collateral challenges to previously issued NSR permits. The rule does not, however, eliminate all Title V challenges relating to an NSR permit. Challenges concerning the Title V permit itself—including whether it appropriately incorporates applicable requirements or contains adequate compliance provisions—remain possible. Increased Importance of the Initial NSR Proceeding Because Title V generally will not provide a second opportunity to challenge the substantive validity of an NSR determination, the administrative record developed during the NSR process becomes increasingly important. Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. Some permitting authorities may conclude that greater public participation at the NSR stage is preferable to uncertainty during subsequent Title V proceedings. Conclusion The final rule is principally a permitting-certainty measure. For sources that obtain NSR permits through a public process, EPA has substantially limited the ability of third parties to revisit underlying NSR determinations through the Title V program. As a result, regulated entities should benefit from greater finality regarding key permitting decisions, reduced risk of collateral permit challenges, and increased certainty when planning and implementing capital projects.

Insights

SEC Proposes Expansion of Investment Adviser Performance-Based Compensation Rule

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which provides an exemption from the general prohibition under Section 205(a)(1) of the Advisers Act on registered investment advisers receiving performance-based compensation (the “Proposal”) so long as performance-based compensation is limited to “qualified clients”.1 Most notably for private fund sponsors, the Proposal would expand the definition of “qualified client” to include any investors that satisfy the “accredited investor” definition under Regulation D. The Proposal may also have implications for private fund managers that rely on exemptions from investment adviser registration under state law because certain state-level investment adviser registration exemptions incorporate or otherwise reference the federal qualified client definition. Expansion of the Qualified Client Definition Under the current Rule 205-3, an investor generally may qualify as a qualified client if, among other alternatives, the investor has at least $1.4 million under management with the adviser or has a net worth exceeding $2.7 million. These thresholds are higher than the financial thresholds applicable to many accredited investors under Regulation D. As a result, an investor may currently qualify as an accredited investor for purposes of investing in a private offering without qualifying as a qualified client for purposes of paying performance-based compensation. The Proposal would expand the qualified client definition to include any natural person or legal entity investor that satisfies the accredited investor definition under Regulation D. The Proposal would also remove the assets under management and net worth thresholds under the current Rule 205-3 qualified client test. For private funds relying on Section 3(c)(1) of the Investment Company Act of 1940, this change could reduce the need to apply a separate qualified client standard to investors that already qualify as accredited investors. Dorsey Observations and Next Steps If adopted as proposed, the expanded qualified client definition could be particularly significant for private fund managers. Most private fund offerings are already limited to accredited investors under Regulation D. However, the Proposal could expand the pool of prospective investors available to emerging private fund managers while reducing the regulatory burden associated with complying with Rule 205-3. The Proposal could also benefit advisers operating below the SEC registration threshold that rely on a state private fund adviser exemption. A number of states have adopted exemptions modeled on the North American Securities Administrators Association (“NASAA”) private fund adviser exemption, which may condition relief for advisers to certain funds relying on Section 3(c)(1) on each beneficial owner satisfying the federal qualified client definition. However, state requirements vary, and any effect of the Proposal would depend on the text of the applicable state exemption and how it incorporates Rule 205-3. Many emerging private fund managers may have a larger network of accredited investor relationships than qualified client relationships during the early stages of their investment advisory business. Currently, under Rule 205-3, private fund managers may receive performance-based compensation from investors who do not satisfy the qualified client definition if those investors were admitted to their private funds prior to registration with the SEC. Following registration with the SEC, however, managers may continue to permit investors that are not qualified clients to invest in future private funds but may not receive performance-based compensation from those investors with respect to such investments. In addition, because the net worth and assets under management thresholds for qualified client status are adjusted for inflation every five years, the pool of qualified client investors may diminish over time as previously eligible investors no longer satisfy the applicable thresholds. The Proposal could provide the dual benefit of greater flexibility for private fund managers to establish and maintain relationships with accredited investors as their businesses scale and they become registered with the SEC, and greater flexibility for certain accredited investors to participate in investment strategies that historically have been restricted to much larger institutional investors. Unless and until the Proposal is adopted, investment advisers should continue to comply with the existing qualified client requirements. If the Proposal is adopted, private fund sponsors should consider whether corresponding changes are appropriate for their subscription documents, investor questionnaires, and other offering materials. Advisers that are state-registered or rely on a state-level exemption should also consult the laws and regulations of each relevant jurisdiction before changing investor eligibility standards or performance-based compensation practices, because adoption of the federal amendments may not automatically modify state requirements. Comments on the Proposal will be due 60 days after publication in the Federal Register. 1 Investment Adviser Performance-Based Compensation Modernization, Investment Advisers Act Release No. IA-7022 (Sept. 30, 2026), available at https://www.sec.gov/rules-regulations/2026/09/s7-2026-28#33-11443proposed.

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The Supreme Court Update - October 14, 2026

Regulatory Affairs Partner Randy Dann Joins Dorsey

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Regulatory Affairs Partner Randy Dann Joins Dorsey