Insights

Those familiar with the supplier and buyer contracting realm will have likely heard of a “requirements contract” or a “blanket purchase order” which essentially allows parties to mutually guarantee that they will buy and sell to each other for a specific period of time, but lets the parties figure out the exact amount of a product later, often on an order-by-order basis. This approach is often favored for its reliability in knowing your supply needs are met (or you have a reliable buyer), while letting the supply move up or down based on real and variable demand. These arrangements are particularly prevalent in supply agreements in the automobile industry.

On January 24, 2025, the United States Supreme Court agreed to hear a case that could resolve whether putative Rule 23(b)(3) classes may be certified in the federal courts when some of the class members are uninjured. Or, as the Supreme Court put the certified question in the case, Laboratory Corporation of America Holdings, dba Labcorp, v. Luke Davis, et al., No. 22-55873:

On December 28, 2023, the Department of Transportation (DOT) published a final rule increasing the statutory maximum monetary civil penalty for regulated entities. The final rule raised the minimum and maximum fines for 2024 by about 3.2 percent from the 2023 level across most DOT modes. The new fine amounts became effective on December 28, 2023 and will only apply to violations that take place after that date.

Last week, the House passed the Drone Infrastructure Inspection Grant Act, which establishes programs within the Department of Transportation (DOT) to support the use of small unmanned aircraft systems (sUAS) when inspecting, repairing, or constructing a variety of types of infrastructure, including roads, electric grids, water, and other critical infrastructure. 

President Biden will soon sign into law the Inflation Reduction Act (IRA), which provides $750 billion in funding and major federal policy changes impacting the U.S. energy, environment, healthcare and tax sectors. On August 7, 2022, the IRA passed the U.S. Senate by an all-Democrat 50-50 party line vote, with Vice President Harris breaking the tie and ensuring passage. On August 12, 2022, the IRA passed the U.S. House by a vote of 220 to 207. The President's signature, will make the bill law, and allow President Biden, U.S. Senate Majority Leader Chuck Schumer (D-NY), and U.S. House Speaker Nancy Pelosi (D-CA) to claim a major victory while making progress on a portion of the President's Build Back Better agenda just three months before the mid-term elections on November 8, 2022.

After 100 days in office, President Joe Biden has made it clear that he is not afraid to go it alone to pursue policy to match his campaign rhetoric and promises. The first 100 days of the administration were marked by a significant number of executive orders, a historic economic stimulus package passed with only Democratic support in Congress, and sweeping proposals that – if enacted – could transform everyday life for a significant number of Americans.

This week, the FAA delivered on its promise to the drone industry that it would release a final rule of both Remote Identification of Unmanned Aircraft Systems (Remote ID) and Operations Over People before we all put 2020 in the rear view mirror. The release of the final rules is a major milestone for the drone industry; once fully implemented, the rules will enable routine, complex unmanned aircraft system (UAS or drone) operations, such as operations beyond visual line of sight (BVLOS) and operations over people, and will lay the groundwork for an Unmanned Traffic Management System that will allow for full integration of drones into the National Airspace System.

Transportation policy is a central feature of the incoming Biden administration’s “Build Back Better” economic recovery plan, which includes a $2 trillion infrastructure plan that would reimagine the nation’s transportation sector to one that takes advantage of new technology, new energy sources, and new workers. President-Elect Biden announced Pete Buttigieg, the former mayor of South Bend, Indiana and presidential rival, as the nominee to serve as Secretary of Transportation. If confirmed, Buttigieg is expected to play a key role in steering President Biden’s infrastructure plan through Congress and ensuring it does not go off the rails (pun intended). To deliver these changes as promised, Congress and the incoming Biden administration will need to tackle a number of tricky policy issues that have bedeviled previous reform efforts.

Lawmakers continue to negotiate the 2021 National Defense Authorization Act (“NDAA”), which could prohibit federal procurement or operation of certain foreign-made drones, including those from China, due to national security concerns.  Meanwhile, some executive agencies are moving forward with agency-specific restrictions on use of federal funds for drone operations that rely on Chinese-made aircraft.  The most recent updates come from the Department of Interior (“DOI”) and the Department of Justice (“DOJ”).

The COVID-19 pandemic is disrupting performance of contracts throughout the business world.  Supplies are locked down, deliveries are disrupted or delayed, and shelter-in-place orders are keeping products and services from reaching customers, all along the supply chain. These changes bring a host of vexing challenges and a common and crucial one is this:  Where a business is able to supply some but not all of its customers’ demand as a result of COVID-19 disruption, how does it decide who among its customers gets limited inventory?  Buyers, in turn, will have to evaluate whether any of its orders will be impacted, to what extent, and, if so, whether it can effectively challenge its own allotted allocation.  This alert offers five practical pointers central to most allocation efforts. 

On April 8, 2020, Massachusetts Governor Charlie Baker exercised his powers as an “Authority Having Jurisdiction” to issue a directive designating specific activities to which Public Readiness and Emergency Preparedness (“PREP”) Act immunity will apply in Massachusetts. The PREP Act provides expansive immunity from liability for claims of loss related to designated “Covered Countermeasures,” and was recently activated with respect to medical countermeasures against COVID-19 pursuant to a declaration issued by the Secretary of the Department of Health and Human Services.  However, certain restrictions apply, and there is little precedent to provide guidance as to how PREP Act immunity may attach in practice.

Everyone wants to help by providing necessary equipment to the COVID-19 frontline: hospitals, doctors, nurses, and other healthcare providers battling COVID-19 need ventilators, masks, gowns and other supplies.

The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) took its first leap toward removing unintentional regulatory roadblocks for autonomous vehicle (AV) developers. On March 17, NHTSA released a notice of proposed rulemaking (NPRM) to modernize numerous Federal Motor Vehicle Safety Standards (FMVSS), and clarify ambiguities in current occupant protection standards for vehicles equipped with automated driving systems (ADS) that are designed without traditional manual controls.

The FAA recently released a Notice of Proposed Rulemaking for Remote Identification of Unmanned Aircraft Systems. The long-awaited rule will require almost all unmanned aircraft systems (“drones”) flying in U.S. airspace to transmit certain identifying information to other aircraft and to people on the ground. Remote ID is an important step in building a robust air traffic system for UAS. The identity and location information will promote safety by providing increased situational awareness for manned and unmanned aircraft and quick access to crucial data for law enforcement and public safety officials. Because implementation of Remote ID is essential to enabling complex drone operations, such as operations beyond visual line of sight (BVLOS), industry stakeholders should carefully review the proposed rule (available here) and consider commenting on the new requirements. Comments to the proposed rule are due to the FAA by March 2, 2020.

On October 28, 2019, the House and Senate circulated draft legislative text for three sections of an autonomous vehicle bill. The three address federal advisory committees, AV testing expansions, and exemptions to allow for vehicles with novel designs. House and Senate committee staff emphasize that this was only a first cut, indicating there would be more to follow.

Last week, the University of Alaska, in partnership with Iris Automation, Skyfront, Echodyne, and Alyeska Pipeline Service Company, completed the first-ever beyond-visual-line-of sight (BVLOS) drone flight without a ground-based visual observer. This successful flight is a breakthrough in both regulatory and operational respects and could pave the way for expanded commercial drone operations in the United States for a variety of drone users, including the energy, agriculture, and insurance industries. The mission also illustrates the gathering momentum for complex BVLOS operations; the FAA’s approval for the University of Alaska comes just seven months after insurer State Farm became the first operator to receive FAA approval for nationwide BVLOS flights using a visual observer.

Yesterday, the Federal Aviation Administration (FAA) posted in the Federal Register the Notice of Proposed Rulemaking for Operations of Small Unmanned Aircraft Systems over People and the Advanced Notice of Proposed Rulemaking for Safe and Secure Operations of Small Unmanned Aircraft Systems. The substance and implications of the draft rules were explored in previous client alerts and can be accessed here and here. Comments to both notices are due April 15, 2019.

Last week, the FAA moved forward with rulemaking on expanded drone operations with the release of several key documents: (1) a Draft Notice of Proposed Rulemaking (NPRM) for Operation of Small Unmanned Aircraft Systems over People, (2) a Draft Advanced Notice of Proposed Rulemaking (ANPRM) for Safe and Secure Operations of Small Unmanned Aircraft Systems, and (3) the announcement of the Unmanned Traffic Management (UTM) Pilot Program. This alert, the second of two, addresses the Draft ANPRM for safety and security and the UTM Pilot Program. The first alert, which addressed the Draft NPRM, can be found here.

On November 28, the International Organization for Standardization (ISO) released the first ever draft global standard for unmanned aircraft systems (UAS) operations. The standard, titled Draft International Standard for Unmanned Aircraft Systems Operations, represents an important step in standardizing UAS operations around the world. Although ISO will publish the standard for global adoption starting in 2019, compliance is not mandatory. The standard is nevertheless important because the Federal Aviation Administration (FAA) and sister agencies worldwide will likely use it as a foundation for future rulemaking. Operators, service providers, and manufacturers should thus strongly consider early adoption of the standard in preparing for forthcoming regulation.

Last week the National Academies of Sciences, Engineering, and Medicine released a study commissioned by the Federal Aviation Administration to assess the risks of, and provide recommendations for, integration of unmanned aircraft systems (UAS) into the national airspace. The report focused on the FAA’s current processes for approving UAS operations, limitations to these processes, and alternative approaches. The study was prepared by a committee that included high-level representatives from both academia and industry.