University of Baltimore Law Review

Airbnb’s Extenuating Circumstances Policy: Travelers Left High and Dry After Hurricane Ian Dampens Plans

*Devyn King

I. Introduction

Last year, Airbnb published users’ travel trends for Summer 2022.[1] Perhaps unsurprisingly, domestic travelers sought mostly coastal stays.[2] Florida was the application’s top destination for summer travel.[3] However, in late September 2022, Hurricane Ian made landfall in Florida.[4] The storm was a category four hurricane and caused as much as a foot of rain, flooding some areas of the state.[5] The flooding led to widespread power outages, blocked roadways, and placed some cities under evacuation orders.[6] The havoc Hurricane Ian caused made it impossible for travelers with Florida vacation plans to follow through with their reservations.[7] After canceling their Airbnb reservations due to the hurricane, many travelers were surprised to learn that Airbnb’s Extenuating Circumstances policy did not allow them to cancel without penalty but instead placed them at the mercy of their individual hosts for a refund.[8] Some hosts were understanding enough to issue full refunds, but others were not.[9]

II. Take a Rain Check: Force Majeure Clauses

A force majeure, also referred to as an “act of God,” is “an event or effect that can be neither anticipated nor controlled; especially an unexpected event that prevents someone from doing or completing something that a person had agreed or officially planned to do.”[10] The occurrence of a force majeure event will excuse performance under a contract.[11] This is premised on the idea that the law should not penalize someone for a failure to perform due to an event beyond their control, or one that they could not reasonably foresee unless they expressly agreed to assume liability in such event.[12]

When drafting a contract, parties may negotiate a force majeure clause so that each party knows which events or extenuating circumstances will prevent performance.[13] Courts typically give effect to the specific language the parties define in a contract.[14] This includes the circumstances in which the force majeure clause applies and the procedures to follow in the event one occurs.[15] Since Hurricane Katrina struck New Orleans in 2005,[16] force majeure clauses have become more critical to account for potential natural disasters.[17] However, treating hurricanes as a force majeure has caused disputes regarding foreseeability. While it may be reasonably foreseeable to experience a hurricane in an area prone to tropical storms, the possibility of catastrophic storms causing extreme flooding is statistically remote.[18]

III. When It Rains, It Pours: Airbnb’s Extenuating Circumstances Policy

Booking a short-term rental through Airbnb includes agreeing to its Extenuating Circumstances Policy, which outlines how the company handles cancellations when force majeure events “make it impracticable or illegal to complete [a] reservation.”[19] Under the policy, travelers can cancel their reservation and receive a refund or travel credit when an unforeseen event impacts their trips.[20] The policy lists scenarios that qualify as an “event”; including changes to government travel requirements, such as visa or passport issues, government-declared emergencies or epidemics, government-imposed travel restrictions that prohibit travel to or from particular locations, military actions, and “natural disasters, acts of God, large-scale outages of essential utilities, volcanic eruptions, tsunamis, and other severe and abnormal weather events.”[21]

However, the policy expressly excludes “weather or natural conditions that are common enough to be foreseeable in that location—for example, hurricanes occurring during hurricane season in Florida.”[22] The Airbnb website lists precisely which weather events—and in which months they occur—are excluded from the Extenuating Circumstances Policy.[23] From June through November, hurricanes occurring along the Gulf of Mexico, the Caribbean Sea, and practically the whole East Coast do not qualify as force majeures.[24] In such a case, a host cancellation is the only avenue for a refund.[25]

IV. Today’s Forecast: Cloudy with a Low Chance of Success

Airbnb’s Extenuating Circumstances policy allows cancellation without penalty when it is “impracticable or illegal to complete [a] reservation.”[26] Completing a reservation certainly became impracticable for travelers who faced flooded roadways, toppled infrastructure, and widespread power outages.[27] Additionally, many affected travelers canceled their reservations because their destinations had mandatory evacuation orders in place.[28] The Fifth District Court of Appeal of Florida previously stated, “a governor’s executive order is not a law, but it has the force and effect of law,”[29] but did not directly resolve the issue of whether ignoring a mandatory evacuation order would constitute a violation of a law.[30] Until the courts or the legislature clarify this issue, it is uncertain whether affected Airbnb guests could successfully challenge the Extenuating Circumstances Policy by arguing it would be illegal to complete their reservations under an evacuation order.

Nevertheless, Airbnb’s Extenuating Circumstances Policy expressly excludes hurricanes in September and October for reservations in Florida.[31] By agreeing to its terms, travelers assume the risk of a cancellation due to any non-qualifying event under the policy.[32] Because courts typically give effect to the express language agreed to by the parties, any challenges to the Extenuating Circumstances Policy by affected travelers will likely fail.[33]

V. Conclusion

Through no fault of their own, but merely due to an inauspicious force majeure clause and settled contract law principles, Airbnb guests are left to their hosts’ kindness to provide refunds after canceling in the wake of Hurricane Ian.[34] To avoid potential liability for incomplete reservations due to future unforeseen circumstances, guests should check what, if any, events are expressly excluded from the rental platform’s force majeure policy before booking a short-term rental.

*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.

[1] Airbnb 2022 Summer Release Highlights, Airbnb News (May 11, 2022), https://news.airbnb.com/airbnb-2022-summer-release-highlights/.

[2] Id.

[3] See id.

[4] See Michael Tobin, Airbnb Guests Are at the Mercy of Hosts for Hurricane Refunds, Bloomberg (Sept. 29, 2022), https://www.bloomberg.com/news/articles/2022-09-29/airbnb-guests-must-rely-on-hosts-for-hurricane-ian-refunds?leadSource=uverify%20wall.

[5] See id.

[6] See id.

[7] See id.

[8] See Hannah Towey, Airbnb’s Refund Policy Specifically Excludes Hurricanes in Florida Because They Are ‘Common Enough to be Foreseeable,’ Business Insider (Oct 5, 2022) https://www.businessinsider.com/airbnb-refund-policy-booking-host-cancellations-hurricane-ian-florida-aircover-2022-10.

[9] See id.

[10] 30 Richard A. Lord, Williston on Contracts § 77:31 (4th ed. 2022) (citing Black’s Law Dictionary (11th ed. 2019)).

[11] Id.

[12] See Farnsworth v. Sewerage & Water Bd. of New Orleans, 139 So. 638, 641 (La. 1932).

[13] See Jennifer Sniffen, In the Wake of the Storm: Nonperformance of Contract Obligations Resulting from A Natural Disaster, 31 Nova L. Rev. 551, 553 (2007).

[14] See 30 Lord, supra note 10.

[15] See Force Majeure Issues Relating to Katrina, Jones Walker (Sept. 21, 2005), https://www.joneswalker.com/images/content/1/1/v2/1176/249.pdf.

[16] Extremely Powerful Hurricane Katrina Leaves a Historic Mark on the Northern Gulf Coast, Nat’l Weather Serv. (Sept. 2022), https://www.weather.gov/mob/katrina.

[17] See Sniffen, supra note 13 at 553.

[18] Force Majeure Issues Relating to Katrina, supra note 15.

[19] Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/1320/extenuating-circumstances-policy (last visited Oct. 23, 2022).

[20] See id.

[21] Id.

[22] Id.

[23] See Weather Events, Natural Conditions, and Diseases That Are Excluded From Our Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/2930/weather-events-natural-conditions-and-diseases-that-are-excluded-from-our-extenuating-circumstances-policy (last visited Oct. 23, 2022) [hereinafter Weather Events].

[24] See id.

[25] See Tobin, supra note 4.

[26] Extenuating Circumstances Policy, supra note 19.

[27] See generally Patricia Mazzei et al., Hurricane Ian’s Staggering Scale of Wreckage Becomes Clearer in Florida, N. Y. Times (Sept. 29, 2022), https://www.nytimes.com/2022/09/29/us/hurricane-ian-florida-damage.html (explaining the damage resulting from Hurricane Ian throughout Florida).

[28] See Tobin, supra note 4.

[29] Gillyard v. Delta Health Grp., Inc., 757 So. 2d 601, 603 (Fla. Dist. Ct. App. 2000).

[30] See id.

[31] See Weather Events, supra note 23.

[32] See Extenuating Circumstances Policy, supra note 19.

[33] See 30 Lord, supra note 10.

[34] See Tobin, supra note 4.

When Pigs Won’t Fly: How the U.S. Pork Industry Could Change State Regulatory Powers in National Pork Producers Council v. Ross

*James Duffy

On October 11, 2022, the Supreme Court heard oral arguments in a case that could drastically change the future of state policymaking.[1] The case concerns a narrow issue involving a California animal welfare law.[2] In National Pork Producers Council v. Ross, the Court will decide the fate of an industry challenge to California’s Proposition 12.[3] The pork industry has challenged this law, which mandates specific welfare standards for all pork raised and sold in California, as a violation of the Dormant Commerce Clause (DCC).[4] While the Court’s ruling is pending, scholars and reporters contend that the impact of this decision could ripple far beyond animal welfare law, begetting significant consequences on states’ abilities to regulate everything from climate change to labor and reproductive rights.[5]

I. The Dispute

In November 2018, California voters passed the Prevention of Cruelty to Farm Animals Act, commonly known as Proposition 12, by an over sixty percent majority.[6] The law amended Section 25990 of California’s Health and Safety Code and prohibited businesses from selling pork in the state if the pig or its offspring was confined inhumanely.[7] Among various other animal welfare provisions, Proposition 12 targets the use of “gestation crates,” a common enclosure method of confining breeding pigs in “metal enclosures so small the pigs can’t turn around for virtually their entire lives.”[8]

A year after the law took effect, the National Pork Producers Council (the Council) filed a complaint against California state officials (defendants) in the District Court for the Southern District of California to challenge the law.[9] The Council sought a declaration that Proposition 12 violated the DCC because almost all domestic pork production (i.e., where the targeted confinement practices occur) takes place outside of California and, therefore, the law could drastically impact the national pork industry.[10] The district court granted the defendants’ motion to dismiss, holding that the Council did not sufficiently allege that Proposition 12 “impermissibly control[led] extraterritorial conduct” or “impose[d] a substantial burden on interstate commerce.”[11] The Council appealed to the Court of Appeals for the Ninth Circuit, which affirmed the lower court’s decision in favor of the defendants.[12]

II. The Ninth Circuit’s Decision

In a de novo review, the Ninth Circuit considered whether the district court abused its discretion in dismissing the complaint. The Court of Appeals reviewed the two central arguments the Council raised in their complaint: First, that Proposition 12 violated the DCC through “impermissible extraterritorial effect[s]” and second, that California’s “excessive burdens” on interstate commerce outweighed California’s local interests in the law under the balancing test established in Pike v. Bruce Church, Inc.^[13] This balancing test, which the Supreme Court has not specified a methodology for, requires courts to compare the “in-state benefits and out-of-state burdens” of a law’s impacts on interstate commerce.[14]

First, the Ninth Circuit rejected the Council’s argument that Proposition 12 had impermissible extraterritorial effects.[15] Invoking the Supreme Court’s interpretation of the extraterritoriality principle, which narrowly prohibits state “price control or price affirmation statutes” or those that regulate commerce “wholly outside” of the state’s borders, the Ninth Circuit distinguished Proposition 12’s effects from those the Supreme Court formerly deemed “impermissible.”[16] The court emphasized that the extraterritoriality principle has been applied only to those laws that seek to “regulate transactions wholly outside” of the enacting state, which they determined Proposition 12 did not.[17] Similarly, the Ninth Circuit rejected the Council’s argument that California lacked “any legitimate local interests” in the law.[18] Rather, the court held that the Council failed to establish any “significant burden” on interstate commerce, holding that an increase in compliance costs for certain out-of-state market participants alone failed to outweigh local interests in consumer protection and animal welfare under Pike.[19]

Accordingly, the Ninth Circuit affirmed the district court’s dismissal of the complaint because the Council failed to sufficiently plead a violation of the DCC.[20] The Council appealed again, and the Supreme Court granted certiorari on March 28, 2022.[21]

III. Oral Argument Before the Supreme Court

During oral argument, the Council and the state defendants received vigorous questioning from all nine Justices.[22] Arguably the most compelling issue raised before the Court, and one absent from the Ninth Circuit’s opinion, revolved around the permissibility of state commerce regulations based on morality.[23] During oral argument, the Council urged that Proposition 12 represents California’s attempt to impose its moral views on animal welfare on the rest of the nation, subsequently increasing consumer costs without reasonable justification in science or public health.[24] In effect, the Council presented the Supreme Court with a new per se rule derived from Pike, essentially asking the Court to bar the consideration of a state’s “moral” interests against the law’s burdens on interstate commerce.[25] Alternatively, the defendants argued that adoption of such a rule would prevent states from maintaining “core feature[s] of state sovereign authority,” such as regulating intrastate commerce and passing legislation based on legitimate, public welfare interests.^[26]

While it remains unclear exactly how the Supreme Court will rule in this case, both the liberal and conservative justices expressed apprehension about altering the Pike test.[27] Justice Kagan emphasized that “a lot of policy disputes can be incorporated into laws” like Proposition 12, suggesting that a decision for the Council could welcome challenges to a multitude of other state laws.[28] Justice Barrett also expressed concern about the effects of adopting this rule, asking the plaintiffs: “How many laws would fall?”[29] She also raised concerns about how courts would be able to effectively distill a state’s “moral interests” from legitimate interests in public health and safety.[30]

IV. “How Many Laws Would Fall?”

The Supreme Court’s decision in National Pork Producers Council could change the way states regulate much more than farming practices.[31] The implications of a decision for either side are perplexing.[32] On the one hand, a decision favoring the Council and adopting this per se Pike rule could lead to courts invalidating many state laws with otherwise permissible extraterritorial impacts on the basis that local interests are too “moral.”[33] Some scholars argue that state policies on clean energy, minimum wages, and even reproductive healthcare could be challenged and deemed unconstitutional under this new rule if a reviewing court found the justification to be based too broadly on a state’s “moral interests.”[34]

On the other hand, entirely rejecting the Council’s challenge could weaken the applicability of the DCC and initiate a flood of new state laws based on “morality.”[35] Legal scholars point out that even the Biden administration “weighed in on behalf of the pork industry” in this case, joining reporters on both sides of the political spectrum who fear the state laws that could be passed on the basis of “morality” if this decision serves to rubberstamp Proposition 12.[36] “[W]eakening the [DCC], even a little” in this decision could open the door to states “passing facially ridiculous laws in a race to see who can be the first to ban products produced by organized labor,” in addition to a plethora of other discriminatory regulations that would not otherwise survive the Pike balancing test.[37]

V. Conclusion

No matter how the Court rules in National Pork Producers Council v. Ross, state regulation on issues much more salient than pork confinement practices could change as a result. In the legal landscape following West Virginia v. EPA,[38] a 2022 Supreme Court decision that California Governor Gavin Newsom described as a “kneecapping” of federal regulatory powers, the stakes for this decision aimed at state regulatory powers could not be higher.[39] The Court is expected to issue a decision in National Pork Producers Council this summer.[40]

*James Duffy is a second-year day student at the University of Baltimore, where he serves as a Staff Editor for the University of Baltimore Law Review, the Vice President of the University of Baltimore’s Environmental Law Society, and a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society. During his 1L summer, he served as a Law Clerk for the Maryland Office of the Attorney General for the Department of Natural Resources. He is currently a Law Clerk in the United States Environmental Protection Agency’s Office of Enforcement and Compliance Assurance. He looks forward to continuing this internship and his work as a Naturalist with Baltimore County’s Department of Recreation and Parks through his 2L summer.

Photo credit: Wikimedia Commons user kallerna (licensed under the Creative Commons Attribution-Share Alike 4.0 International license).

[1] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[2] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[3] Id.

[4] Id.

[5] See Ian Millhiser, The Surprisingly High Stakes in a Supreme Court Case About Bacon, Vox (Oct. 9, 2022) https://www.vox.com/policy-and-politics/2022/10/9/23392575/supreme-court-national-pork-producers-ross-bacon-dormant-commerce-clause; Elie Mystal, How a Supreme Court Case About Pigs Could Further Undermine . . . Abortion Rights, Nation (October 14, 2022) https://www.thenation.com/article/society/supreme-court-pork-case-california/; Niina H. Farah, What a Supreme Court Case on Pigs Means for Renewable Energy, EnergyWire (Oct. 7, 2022) https://www.eenews.net/articles/what-a-supreme-court-case-on-pigs-means-for-renewable-energy/.

[6] Proposition 12 sought “to prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.” Cal. Proposition 12, § 2 (2018). See also Robert Barnes, Supreme Court Weighs Far-Reaching Effects of California Pork Restrictions, Wash. Post (Oct. 11, 2022) https://www.washingtonpost.com/politics/2022/10/11/supreme-court-california-pork-law/.

[7] Cal. Health & Safety § 25990(b)(2) (West 2022).

[8] Kenny Torrella, The Fight Over Cage-Free Eggs and Bacon in California, Explained, Vox (Aug. 10, 2021), https://www.vox.com/future-perfect/22576044/prop-12-california-eggs-pork-bacon-veal-animal-welfare-law-gestation-crates-battery-cages.

[9] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[10] Id. at 1025, 1028.

[11] Id. at 1026.

[12] Id.

[13] Id. at 1026, 1028, 1030 (discussing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

[14] Id. at 1032.

[15] Id.

[16] Id. at 1026–28 (quoting Pharm. Rsch. & Mfrs. of Am. v. Walsh, 583 U.S. 644, 669 (2003)).

[17] Id. at 1031.

[18] Id. at 1025–26.

[19] The Council argued that compliance with Proposition 12 would result in a national “9.2 percent increase in production cost” of pork. Id. at 1033.

[20] Id. at 1033–34.

[21] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[22] See Barnes, supra note 5.

[23] Transcript of Oral Argument at 20, National Pork Producers Council v. Ross, 142 S. Ct. 1413 (2022) (No. 21-468).

[24] Id. at 22–24.

[25] Id. at 31.

[26] Id. at 116–17.

[27] Id. at 30–31; 43–46.

[28] Id. at 95.

[29] Id. at 43.

[30] Id. at 43, 95–99.

[31] See Millhiser and Mystal, supra note 4.

[32] Id.

[33] Id.

[34] See supra note 4.

[35] See Mystal, supra note 4.

[36] Id.

[37] Id.

[38] West Virginia v. EPA, 142 S. Ct. 2587 (2022).

[39] Howard Goller, Reactions to U.S. Supreme Court Ruling on Carbon Emissions, Reuters (June 30, 2022, 2:06 PM) https://www.reuters.com/legal/government/reactions-us-supreme-court-ruling-carbon-emissions-2022-06-30/.

[40] Matt Regusci, Will California and the Supreme Court Cripple the Pork Industry?, Food Safety Tech (Jan. 8, 2023), https://foodsafetytech.com/column/will-california-and-the-supreme-court-cripple-the-pork-industry/.

Williams v. Kincaid: The Fourth Circuit’s Landmark Protection of Gender Dysphoria Under the ADA

*Erin Turvey

I. Introduction

On August 16, 2022, the United States Court of Appeals for the Fourth Circuit issued a landmark decision extending protection under the Americans with Disabilities Act (ADA) to people with gender dysphoria.[1] Plaintiff Kesha Williams (Williams), a transgender woman diagnosed with gender dysphoria, was incarcerated for six months in the Fairfax County Adult Detention Center.[2] Williams was initially assigned to housing on the women’s side of the prison but was moved to the men’s side (pursuant to the prison’s policy which based gender classification on genitalia) after disclosing to the prison nurse that she is transgender.[3] Williams requested that the nurse retrieve the hormone medication she had brought to prison—which she had been taking for fifteen years.[4] Instead, the nurse instructed her to fill out a medical release form.[5] After the initial delay in receiving her hormone medication, Williams allegedly experienced additional delays in receiving treatment, was consistently misgendered, and was harassed by other incarcerated people and sheriff’s deputies.[6]

Following her release in May 2019, Williams brought suit against the Fairfax County Sheriff and others, claiming violations of the ADA and the Constitution.[7] The defendants moved to dismiss, arguing that the ADA offered no basis for relief to Williams because “gender dysphoria is not a ‘disability’ under the ADA.”[8] The District Court for the Eastern District of Virginia agreed with this argument and dismissed the suit.[9] In an issue of first impression for federal appellate courts, the Court of Appeals for the Fourth Circuit reversed, holding that the exclusion under the ADA for “gender identity disorders not resulting from physical impairments” did not include gender dysphoria.[10] Thus, Williams’ ADA claim was not barred.[11]

II. Exclusions Under the ADA and Ms. Williams’ Argument

The ADA provides people with a disability protection from discrimination on account of that disability.[12] Disability is defined broadly under the ADA as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[13] However, there are a number of exclusions as to what constitutes a disability under the ADA, such as “homosexuality,” “bisexuality,”[14] and “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”[15]

In her appeal, Williams challenged the District Court’s reliance on the “gender identity disorder[] not resulting from physical impairments” exclusion as a bar to her ADA claim.[16] Williams primarily argued that categorizing gender dysphoria as a “gender identity disorder[]” is inaccurate.[17] The Fourth Circuit agreed.[18]

III. Differentiating Gender Dysphoria From Gender Identity Disorders

The Fourth Circuit relied in large part on differentiating gender dysphoria from gender identity disorders to reach its conclusion that gender dysphoria is not excluded from protection under the ADA.[19] The ADA does not define gender identity disorders, nor is gender dysphoria even mentioned in the ADA.[20] Thus, the court looked to the statute’s meaning at the time of adoption.[21] The court determined that when the ADA was adopted in 1990, “‘gender identity disorders’ did not include gender dysphoria[.]”[22] Rather, gender dysphoria had not yet been recognized as a separate diagnosis.[23]

“[I]n 1990, the gender identity disorder diagnosis marked being transgender as a mental illness,” characterized by a “discordant gender identity.”[24] After significant advances in understanding, the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), removed “gender identity disorder” and added “gender dysphoria” as a diagnosis.[25] In contrast to the focus on gender identity in the definition of the now-rejected “gender identity disorder” diagnosis, “the DSM-5 defines ‘gender dysphoria’ as the ‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex.’”[26]

The DSM-5’s shift in focus to “distress and other disabling symptoms”[27] that, if left untreated, could lead to “depression, substance use, self-mutilation, other self-harm and suicide,”[28] was enough for the court to hold that, “as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”[29] Congress gave the courts the “express instruction that courts construe the ADA in favor of maximum protection for those with disabilities.”[30] The Fourth Circuit chose not to add to the list of exclusions that Congress made, finding instead that gender dysphoria did not fall within the statute’s exclusion for “gender identity disorders.”[31]

IV. Avoiding a Constitutional Question

In further support of its conclusion, the Fourth Circuit relied on the cannon that, if an interpretation of a statute exists which can avoid a constitutional question, that construction should be adopted.[32] Here, the constitutional question was under the Equal Protection Clause: a reading of the ADA that excluded protection of “both ‘gender identity disorders’ and gender dysphoria would discriminate against transgender people as a class.”[33] To avoid deciding whether the exclusions to ADA protection are an Equal Protection violation, the court elected to adopt the statutory construction that would notraise the constitutional question—gender dysphoria is not a “gender identity disorder[].”[34]

V. Conclusion

The Fourth Circuit’s holding has far-reaching implications, including allowing ADA violation claims for the refusal of gender-affirming care for people diagnosed with gender dysphoria in the carceral context.[35] Moreover, Maryland, Virginia, West Virginia, North Carolina, and South Carolina employers will now have to provide reasonable accommodations for employees with gender dysphoria, such as inclusive restroom access and leave for gender affirming medical treatment.[36] In a time when more than a dozen states have proposed so-called “Don’t Say Gay” bills,[37] it is imperative that more protections be extended to transgender people. While there is more to be done, the Fourth Circuit’s ruling is a promising step in the right direction.

*Erin Turvey is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I, a Law Scholar for Contracts I, a Research Assistant for Professor Tiefer, and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. After receiving her J.D., Erin hopes to work in public interest law.

[1] See Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).

[2] Id. at 763.

[3] Id. at 764.

[4] Id.

[5] Id.

[6] Id. at 764–65.

[7] Id.

[8] Id. at 765.

[9] Williams v. Kincaid, No. 1:20-CV-1397, 2021 WL 2324162, at *2 (E.D. Va. June 7, 2021), rev’d, 45 F.4th 759 (4th Cir. 2022).

[10] Williams, 45 F.4th at 766.

[11] Id.

[12] Americans with Disabilities Act of 1990, 42 U.S.C. § 12132.

[13] 42 U.S.C. § 12102(1)(A).

[14] Id. § 12211(a).

[15] Id. § 12211(b)(1).

[16] Williams, 45 F.4th at 766.

[17] Id.

[18] Id. at 779–80.

[19] Id. at 767.

[20] Id.

[21] Id. at 766.

[22] Id. at 767.

[23] Id.

[24] Id. (quoting Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020)).

[25] Williams, 45 F.4th at 767.

[26] Id. (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 452–53 (American Psychiatric Publishing, 5th ed. 2013)).

[27] Williams, 45 F.4th at 768.

[28] Id. (quoting Grimm, 972 F.3d at 595).

[29] Williams, 45 F.4th at 769.

[30] Id. at 769–70.

[31] Id. at 769.

[32] Id. at 773–74.

[33] Id. at 772.

[34] Id. at 773–74.

[35] See, e.g., Zayre-Brown v. N. Carolina Dep’t off Pub. Safety, No. 3:22-CV-101-MOC-DCK, 2022 WL 4456268 at *1, *5 (W.D.N.C. Sept. 23, 2022).

[36] Ryan M. Bates, Fourth Circuit Holds That Gender Dysphoria is Protected Under the ADA, Nat’l L. Rev. (Sept. 14, 2022), https://www.natlawreview.com/article/fourth-circuit-holds-gender-dysphoria-protected-under-ada.

[37] “Don’t Say Gay” bills are, in general, geared towards prohibiting schools from incorporating discussion of topics such as gender identity and sexual orientation into curriculums. Dustin Jones & Jonathan Franklin, Not Just Florida. More Than a Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2022), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills. Such bills are largely seen by critics to be motivated by transphobia and homophobia. Id.

“Extraordinary and Compelling”: The Circuit Split Barrier to Compassionate Release Motions

*Kenneth Wyatt II

I. What is “Extraordinary and Compelling”?

For almost five decades, people incarcerated in federal prisons have faced barriers to early release from their sentences.[1] However, in 2018, Congress passed the First Step Act (FSA). The FSA, among other things, amended the U.S. Code’s compassionate release statute,[2] granting courts the ability to act on a motion for compassionate release filed by an incarcerated person.[3] Prior to the passing of the FSA, federal courts were only permitted to alter a defendant’s sentence upon a motion from the Director of the Federal Bureau of Prisons.[4] Now, a district court may modify a defendant’s term of imprisonment if:

(1) [T]he defendant [has] exhausted administrative remedies; (2) “extraordinary and compelling reasons” warrant a sentence reduction; (3) a sentence reduction is “consistent with applicable policy statements” issued by the U.S. Sentencing Commission; and (4) the district court considered the factors set forth in 18 U.S.C. § 3553(a).[5]

Congress directed the Sentencing Commission to promulgate general policy statements governing what constitutes extraordinary and compelling reasons for sentence reduction.[6] The Sentencing Commission provided a policy statement limiting “extraordinary and compelling reasons” for motions filed by the Bureau of Prisons (BOP) Director to those dealing with the incarcerated person’s medical conditions, age, family circumstances, or any other reason the BOP Director deems appropriate.[7] However, the Commission has no current policy statement pertaining to motions filed directly by incarcerated people under § 3582(c)(1)(A).[8] Several circuits agree that the Sentencing Commission’s current policy statement is not binding on district courts for prisoner-initiated motions.[9] However, there is still disagreement on the application of the phrase “extraordinary and compelling.”[10]

II. The Creation of Sentence “Stacking”

Prior to the FSA, any person charged with possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) received a mandatory minimum sentence of five years for their first conviction and twenty-five years for every subsequent conviction.[11] The U.S. Supreme Court interpreted this to mean that the twenty-five year mandatory minimum enhancement for subsequent convictions applied to multiple § 924(c) counts charged in a single proceeding, even when the defendant had no prior § 924(c) convictions.[12] This application of the law created what is now known as “924(c) stacking.”[13]

In an effort to eliminate 924(c) stacking, Congress clarified the twenty-five year enhancement rule in § 403(a) of the FSA, triggering it only by conviction of a § 924(c) charge that occurs after the initial § 924(c) conviction is final.[14] While § 403(a) nearly eliminated sentence stacking, Congress limited its application to “defendants who have not yet been sentenced for their 924(c) convictions.”[15] As a result, courts have interpreted § 403(a) as non-retroactive.[16]

To date, Congress has not addressed district courts’ discretion to consider § 403(a) in motions for compassionate release.[17] This lack of direction by Congress, has created dissonance amongst the courts.[18]

III. The Split Amongst the Courts

The Third, Seventh, and Eighth Circuits have all held that district courts cannot consider § 403(a)’s non-retroactive changes, reasoning that these changes would allow § 3582(c)(1)(A) to provide a loophole to circumvent non-retroactivity.[19]

Alternatively, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person.[20] These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release.[21] The Circuits have provided two reasons for this conclusion:

(1) None of the statutes directly addressing “extraordinary and compelling reasons” prohibit district courts from considering non-retroactive changes in sentence law; and (2) a sentence reduction under § 3582(c)(1)(A) based on extraordinary and compelling reasons is entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.[22]

IV. Self-Imposed Judicial Limitations

Congress has placed only two express limitations on extraordinary and compelling reasons warranting release: (1) that the district courts are bound by the Sentencing Commission’s Policy Statements[23] and (2) that “[r]ehabilitation . . . alone” is not extraordinary and compelling.[24] In the absence of any additional limits to the scope of information a district court may consider when modifying a sentence under the FSA, the district court’s discretion is not restrained in any further way.[25] While Congress did make § 403(a) non-retroactive,[26] it has not expressly prohibited district courts from considering non-retroactive changes in sentencing law in combination with other factors particular to each incarcerated individual.[27] Any limitations by the courts are self-imposed and belie the statute’s original intent.[28] These self-imposed limitations created disparities in time served amongst incarcerated people throughout the country. With the current circuit split, an individual may serve the entirety of their excessive sentence,[29] while another may receive compassionate release solely based on the location of their incarceration.[30]

V. The Necessary Resolution

The Supreme Court must address this issue to resolve the Circuit split. The Court should decide the split in favor of considering § 403(a)’s changes in combination with other factors when assessing a defendant’s petition for compassionate relief. This approach will combat the unduly harsh sentencing caused by the initial interpretation of 18 U.S.C. § 924(c).[31] Failure by the Supreme Court to address this split will further the discrepancy in the law’s application resulting in the continued incarceration of people whose sentences are no longer equitable.[32]

*Kenneth Wyatt II is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. He also serves as a law scholar for Professor Meyerson and as a fellow in the school’s Legal Writing Center. Kenneth interned with Judge Grimm at the United States District Court for the District of Maryland this past summer and looks forward to being a summer associate at DLA Piper during the upcoming summer of 2023.

[1]See Sentencing Reform Act, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (1984) (codified as amended in sections of 18 and 28 U.S.C.).

[2] 18 U.S.C.A. § 3582(c)(1)(A).

[3] See id.; see also Pub. L. 115-391, 132 Stat. 5239 (2018).

[4] Sentencing Reform Act, supra note 1.

[5] § 3582(c)(1)(A); see United States v. Chen, 48 F.4th 1092, 1094–95 (9th Cir. 2022).

[6] 28 U.S.C.A. § 994(t) (West 2006).

[7] U.S.S.G. § 1B1.13, cmt. n.1(A)–(D).

[8] See United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“t]here is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582 (c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.’”) (quoting United States v. Brooker, 976 F.3d 228, 230 (2nd Cir. 2020)).

[9] United States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021) (explaining that the 2nd, 4th, 6th, 7th, 9th, and 10th Circuits “have unanimously held that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.”).

[10] See discussion infra Section III.

[11] See 18 U.S.C.A. § 924(c); see also United States v. Deal, 508 U.S. 129, 130–36 (1993).

[12] See Deal, 508 U.S. at 130–36.

[13] See id.; see also Chen, 48 F.4th at 1094.

[14] See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C)).

[15] Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13.

[16]Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13. Retroactivity makes the entire class of defendants automatically eligible for relief. Instead, § 3582(c)(1)(A) only makes “defendants who can meet the heightened standard of ‘extraordinary and compelling reasons’” eligible for relief. McCoy, 981 F.3d at 287.

[17] See supra note 6–8 and accompanying text.

[18] See supra note 6–8 and accompanying text.

[19] See United States v. Andrews, 12 F.4th 255, 261 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (“[W]e will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” “[C]onsidering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”); United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022) (“[T]he discretionary authority conferred by § 3582(c)(1)(A) only goes so far. It cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only prospectively.”); United States v. Crandall, 25 F.4th 582, 586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022) (“[T]he compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”); see also See Chen, 48 F.4th at 1096.

[20] See id. at 1100 (holding that a petition for compassionate release “does not retroactively apply § 403(a)’s sentencing changes . . . allowing courts to consider § 403(a)’s changes in the extraordinary and compelling analysis does not conflict with § 403(b)’s non-retroactivity provision.”); United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law. . . . [N]o provision in the First Step Act indicates ‘Congress meant to deny the possibility of a sentence reduction, on a case-by-case basis, to a defendant premised in part on the fact that he may not have been subject to a mandatory sentence of life imprisonment had he been sentenced after the passage of the FSA.”) McCoy, 981 F.3d at 285–86 (“[C]ourts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair.”); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (holding that the defendant’s age at the time of sentencing, the length of his stacked sentences under § 924(c), the First Step Act’s elimination of sentence stacking under § 924(c), and the significant difference in the sentence received and that which would have been received if the defendant was sentenced today were a combination of factors that created extraordinary and compelling reasons for release).

[21] Id.

[22] See Chen, 48 F.4th at 1097; see also supra note 15 and accompanying text (explaining how § 3582(c)(1)(A) differs from a retroactive change in law).

[23] U.S.S.G. § 1B1.13, cmt. n.1 (A)–(D); see also supra note 6 and accompanying text. This limitation only applies when the BOP Director files the motion.

[24] See 18 U.S.C. § 3582(c)(1)(A) (2018); 28 U.S.C.A. § 994(t) (West 2006).

[25] See Concepcion v. United States, 142 S. Ct. 2389, 2396 (2022).

[26] See supra notes 14–15 and accompanying text.

[27] Ruvalcaba, 26 F.4th at 25; see also First Step Act of 2018, supra note 13.

[28] See 18 U.S.C.A. § 3582(c)(1)(A); see also McCoy, 981 F.3d at 287 (“[T]he very purpose of § 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already afford relief but ‘extraordinary and compelling reasons’ nevertheless justify a reduction.”).

[29] See supra notes 11–17 and accompanying text.

[30] See discussion supra III.

[31] See supra notes 12–14 and accompanying text.

[32] See United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“No provision in the First Step Act indicates ‘Congress meant to deny the possibility of a sentence reduction, on a case-by-case basis, to a defendant premised in part on the fact that he may not have been subject to a mandatory sentence of life imprisonment had he been sentenced after the passage of the FSA.”).

Financial Firms Struggle to Maintain Regulatory Compliance as Employees Text

*Kristine Martinez

I. Introduction

“[I]nvestment banks are required to keep copies of all business-related communications that employees send and receive” under Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) rules.[1] These requirements are “designed to deter and uncover infringements such as insider trading and ‘front-running,’ or trading on information that is not yet public,” while also “ensuring best practice in terms of treatment of customers.”[2] Technological advancements, including the “proliferation of mobile-messaging apps” and the transition to remote work during COVID-19, strained financial firms’ compliance with their mandate to “monitor business communications.”[3]

II. The Bellwether: J.P. Morgan

On December 17, 2021, the broker-dealer subsidiary of JPMorgan Chase & Co., J.P. Morgan Securities LLC, admitted and acknowledged violation of federal securities laws requiring the preservation of employees’ securities-related business communications between January 2018 and November 2020.[4] As part of the SEC settlement, J.P. Morgan Securities LLC “agreed to pay a $125 million penalty and implement robust improvements to its compliance policies and procedures.”[5] Further, the broker-dealer “admitted that these failures were firm-wide and . . . supervisors, including managing directors and other senior supervisors—the very people responsible for implementing and ensuring compliance with JPMS’s policies and procedures—used their personal devices to communicate about the firm’s securities business.”[6]

This failure meant J.P. Morgan Securities LLC was not fully responsive to subpoenas and requests from the SEC in “numerous investigations during the time period that the firm failed to maintain required records.”[7] The broker-dealer “acknowledged that its recordkeeping failures deprived the SEC staff of timely access to evidence and potential sources of information for extended periods of time and in some instances permanently.”[8] The SEC further admonished that “the firm’s actions meaningfully impacted the SEC’s ability to investigate potential violations of the federal securities laws.”[9]

III. The Get: Sixteen Wall Street Firms

The SEC investigated firms such as Barclays, Bank of America, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, Morgan Stanley, and UBS which “cooperated with the investigation by gathering communications from the personal devices of a sample of . . . senior and junior investment bankers and debt and equity traders.”[10] Starting its inquiry prior to the pandemic, the SEC found that between January 2018 and September 2021, “the firms’ employees routinely communicated about business matters using text messaging applications on their personal devices.”[11] Therefore, the firms violated the federal securities laws because they “did not maintain or preserve the substantial majority of these off-channel communications.”[12] This failure “likely deprived the Commission of these off-channel communications in various Commission investigations.”[13]

On September 27, 2022, after finding “pervasive off-channel communications,” the SEC announced that it charged fifteen broker-dealers and an affiliated investment advisor with “widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications.”[14] The firms and affiliates “acknowledged that their conduct violated recordkeeping provisions of the federal securities laws, agreed to pay combined penalties of more than $1.1 billion, and [began] implementing improvements to their compliance policies and procedures” as part of their settlement with the SEC.[15]

Observing that this “recordkeeping has been vital to preserve market integrity” since the 1930s, SEC Chair Gary Gensler emphasized the importance of fulfilling the obligation to maintain and preserve business communications exclusively conducted through official channels.[16] The Director of the SEC’s Division of Enforcement, Gurbir S. Grewal, described financial recordkeeping requirements as “sacrosanct” and warned that “[o]ther broker dealers and asset managers who are subject to similar requirements under the federal securities laws would be well-served to self-report and self-remediate any deficiencies.”[17] Gensler pointed to public policy considerations driving the enforcement of rules regulating the storage of these communications, noting that “[f]inance, ultimately, depends on trust.”[18]

IV. Unfinished Business: New Inquiries

Although settlement statements will often not acknowledge wrongdoing, the aforementioned cases have been atypical in that “all the firms admitted to actual wrongdoing.”[19] After finding that employees across many of these firms “routinely used personal mobile messaging apps to discuss official business . . . disregarding company policies that forbid them from doing just that,”[20] the SEC has not shown signs that it will let up on these investigations.

In late October 2022, the SEC sent letters to dozens of investment firms to determine whether asset managers were compliant with their record retention requirements.[21] These letters probed for information concerning the apps and devices permitted for the investment firms’ official communications and inquired if electronic records of the same were captured.[22]

V. Conclusion

To balance the convenience of mobile communications platforms with the need for fastidious recordkeeping, financial firms have turned to new technologies as a solution to their compliance woes.[23] Businesses such as Symphony and Movius seek to fill the gap in the market for software that “integrates third-party communications tools such as email, Zoom, Microsoft Teams[,] and WhatsApp into one system that can be recorded and archived.”[24] Financial institutions such as Amundi, AXA IM, BNPP AM, and JPMorgan Asset Management have adopted such technologies.[25] Additionally, many banks internally introduced text and chat platforms that ensure adherence to regulatory requirements.[26] All financial firms subject to SEC and CFTC recordkeeping and supervision rules are on notice;[27] the investigations and penalties may not stop any time soon.

*Kristine Martinez is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for the Law Review, a Royal Graham Shannonhouse III Honor Society Scholar, a Law Scholar for Professor Hubbard’s Civil Procedure II class, and a Vice President of the Women’s Bar Association. Prior to law school, Kristine spent five years working as a paralegal, primarily assisting with litigation matters. During her 1L summer, Kristine interned with The Honorable Andrea M. Leahy of the Appellate Court of Maryland. Kristine looks forward to working as a summer associate at Kramon & Graham, P.A. during the upcoming summer of 2023.

[1] Pro Say, The Shifting Politics of Courthouse Arrests, Law360, at 09:48 (Sept. 30, 2022), https://podcasts.apple.com/us/podcast/law360s-pro-say-news-analysis-on-law-and-the-legal-industry/id1240435608?i=1000581203938.

[2] Iain Withers & Sinead Cruise, Asset Managers on Alert After ‘WhatsApp’ Crackdown on Banks, Reuters (Aug. 18, 2022, 3:04 AM), https://www.reuters.com/technology/asset-managers-alert-after-whatsapp-crackdown-banks-2022-08-18/.

[3] Lydia Beyoud, SEC Expands WhatsApp Scrutiny to Money Manager Communications, Bloomberg News (Oct. 11, 2022), https://www.bnnbloomberg.ca/sec-expands-whatsapp-scrutiny-to-money-manager-communications-1.1831121.

[4] Press Release, Sec. & Exch. Comm’n, JPMorgan Admits to Widespread Recordkeeping Failures and Agrees to Pay $125 Million Penalty to Resolve SEC Charges: Firm Also Agrees to Implement Significant Improvements to Its Compliance Controls (Dec. 17, 2021), https://www.sec.gov/news/press-release/2021-262. The SEC’s civil investigation culminated in a settlement with J.P. Morgan Securities LLC. Id. The CFTC issued an order the same day settling charges against J.P. Morgan Securities LLC and affiliated entities JPMorgan Chase Bank, N.A. and J.P. Morgan Securities plc for violating regulations and the Commodity Exchange Act. Press Release, Commodity Futures Trading Comm’n, CFTC Orders JPMorgan to Pay $75 Million for Widespread Use by Employees of Unapproved Communication Methods and Related Recordkeeping and Supervision Failures: JPMorgan Admits Employees Used Texts and WhatsApp on Personal Devices to Conduct Business (Dec. 17, 2021), https://www.cftc.gov/PressRoom/PressReleases/8470-21.

[5] Press Release, Sec. & Exch. Comm’n, supra note 4

[6] Id. The CFTC’s investigation found many of the same recordkeeping and supervision violations as the SEC. Press Release, Commodity Futures Trading Comm’n, supra note 4. However, the CFTC found that the violations occurred since July 2015 and issued “a $75 million civil monetary penalty.” Id.

[7] Press Release, Sec. & Exch. Comm’n, supra note 4.

[8] Id.

[9] Id.

[10] Press Release, Sec. & Exch. Comm’n, SEC Charges 16 Wall Street Firms with Widespread Recordkeeping Failures: Firms Admit to Wrongdoing and Agree to Pay Penalties Totaling More Than $1.1 Billion (Sept. 27, 2022), https://www.sec.gov/news/press-release/2022-174.

[11] Id.

[12] Id.

[13] Id.

[14] Id. The same day, the CFTC settled with the firms and affiliates “for failing to maintain, preserve, or produce records that were required to be kept under CFTC recordkeeping requirements, and failing to diligently supervise matters related to their businesses as CFTC registrants.” Press Release, Commodity Futures Trading Comm’n, CFTC Orders 11 Financial Institutions to Pay Over $710 Million for Recordkeeping and Supervision Failures for Widespread Use of Unapproved Communication Methods: Registered Swap Dealers and FCMs Admit Use of Texts, WhatsApp and Other Unapproved Methods to Conduct Business (Sept. 27, 2022), https://www.cftc.gov/PressRoom/PressReleases/8599-22.

[15] Press Release, Sec. & Exch. Comm’n, supra note 10.

[16] Id.

[17] Id.

[18] Id.

[19] Pro Say, supra note 1, at 11:50.

[20] Id. at 08:20.

[21] Beyoud, supra note 3.

[22] Lydia Beyoud, SEC Looking Into Money Managers’ Use of Outside Messaging Apps, Bloomberg Law (Oct. 11, 2022, 5:02 PM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XEKJR0R0000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvM2E1NzYxNzdlZDg5MzRkNzBjNTA1YzRkZTZiOWE1YTciXV0–7a6218654fa0c6e3cdd437a5d6169d18cad7543a&bna_news_filter=bloomberg-law-news&criteria_id=3a576177ed8934d70c505c4de6b9a5a7.

[23] Withers & Cruise, supra note 2.

[24] Id.

[25] Id.

[26] Pro Say, supra note 1, at 12:45.

[27] Beyoud, supra note 3.