The Effect of DOGE and Its Efforts to Reduce the Federal Government Footprint

The last few months have been a whirlwind in American politics. Much of the news, especially during the early months of 2025, revolved around the Department of Governmental Efficiency (“DOGE”). The department, led publicly by Elon Musk, has set out to reduce federal spending in a myriad of ways, including reducing the government workforce, rescinding federal contracts, and reducing the federal government’s real estate footprint. 

Unsurprisingly, DOGE’s work so far has been extremely polarizing within the United States (for a long list of valid reasons). However, the initiative to reduce the amount of commercial real estate owned and leased by the federal government is not a novel initiative; in 2015, President Obama’s administration released Budget Memorandum M-12-12, Promoting Efficient Spending to Support Agency Operations, colloquially known as the “Reduce the Footprint” memorandum. The current focus on reducing the federal real estate footprint presents an interesting opportunity for real estate developers, and the federal government’s rush to sell buildings and terminate its existing leases may have a profound impact on the local communities. 

Patent and Trademark Applicants Could See Big Delays in 2025

Patent and trademark applicants are likely to see significant changes with their applications in 2025. First, numerous fee increases have recently taken effect – on January 18 for trademark applications and January 19 for patent applications. Second, applicants are also likely to see lengthened delays in the processing of new applications due to recent decisions by the new Trump Administration which may slow the operations of the U.S. Patent & Trademark Office (USPTO).

Two of President Trump’s “first day” Executive Orders issued on January 20 may present a pair of challenges to the USPTO’s efforts to review pending patent and trademark applications in an efficient and timely manner. A Presidential Memorandum was issued requiring all federal employees to return to in-person work. The USPTO employs about 14,000 employees, with 13,000 employees currently working remotely. The Memorandum could create changes in the available workforce depending on how it is enforced. Additionally, one of new Director Coke Morgan Stewart’s first actions as head of the USPTO, in response to a President Trump directive to shrink the federal workforce, was to put a freeze on new hires at the agency. This overturned a USPTO announcement in mid-2024 to hire 800 new employees – mostly new patent examiners – in an effort to address the increased backlogs of patent applications. The confluence of these two decisions could lead to fewer USPTO employees available, which would directly lead to greater increases in wait time for pending applications.

The Regulation Burden and Small Businesses

Ever since the passage of the Corporate Transparency Act (CTA) in 2021, business attorneys (and, hopefully, small business owners) have been analyzing, preparing for, complaining about, and deciphering the CTA and the required beneficial ownership reports required by it. Recently, several events have increased the emphasis on the CTA, including the fast-approaching original deadline of January 1, 2025 for companies formed prior to 2024, and the decision by a Federal Court in Texas to grant a nationwide preliminary injunction against the enforcement of the CTA. After having spent a year in the CTA trenches, I’ve seen first-hand how burdensome it can be for business owners to satisfy, and it piqued my curiosity as to the cost of complying with regulations as a small business owner in the United States.

The regulation burden in the United States – while having its merit for protecting individuals and consumers – is staggering. I recently reviewed a study conducted for the National Association of Manufacturers entitled “The Cost of Federal Regulation to the U.S. Economy, Manufacturing and Small Business.” In this study, the National Association of Manufacturers found that the cost of federal regulations to the U.S. economy totaled $3.079 trillion dollars (yes, trillion with a “T”) in 2022, with an average annual compliance cost to a U.S. firm of $277,000 dollars. For small manufacturers (as defined in the study), the cost was about $50,100 per employee to comply with these regulations.

A Tourist’s Guide to the Corporate Transparency Act

If you’re involved in the legal or business world, it is likely that you have heard talk of the Corporate Transparency Act (“CTA”) and the Beneficial Ownership Information Reports (“BOIRs”) the CTA requires.

The CTA was passed in 2021, and since that time the Financial Crimes Enforcement Network (“FinCEN”) has been issuing regulations. Beginning January 1, 2024, millions of businesses are now required to report. In this post, I write about my personal experience with the CTA and filing BOIRs. I also include here a general update on the latest happenings related to the CTA.

Philip Bump, The Aftermath: The Last Days of the Baby Boom and the Future of America (Viking, 2023)

I write this sitting in front of a window open on a fine summer’s morning. On any other day, I’d be in an equally fine mood, but today I find my internet connection has suddenly gone missing and, after seven hours on the phone with my “helpful” ISP, I am still accessing the online world through a supremely unstable iPhone hotspot. Insert “OK, Boomer” comment here.

Yes, this is a first-world problem, but it’s one problem those of us in the Boomer generation would never have anticipated—let alone imagined—30 years ago. It is a problem, as Bump argues here in this biography of my generation, that arises from the shift in society’s focus away from us old-timers. “Younger Americans,” he writes, “now dominate a cultural conversation that often depends on the sort of technologies that have emerged only relatively recently.”

Brian Klaas, Corruptible: Who Gets Power and How It Changes Us (Scribner, 2021)

It’s a view of human nature that we all accept. It tends to shape how we view our political affairs, our economic institutions, our business practices, and really any realm of human endeavor. It is expressed as an aphorism of only two words: “power corrupts.”

Political Scientist Brian Klaas—a Minnesotan, a contemporary of one of my daughters at a local high school, a graduate of two institutions of higher learning with which I am familiar, and now a professor at the University of London—has set out to examine this idea in light of the question, “Does power corrupt or are corrupt people drawn to power?”

The answer, it seems, is yes—both are true. While Klaas’s analysis focuses on obviously nefarious activities, he includes some aspects of corporate endeavor and business behavior along the same spectrum. His focus is on people who have wielded “enormous power,” be they “cult leaders, war criminals, despots, coup plotters, torturers, mercenaries, generals, propagandists, rebels, corrupt CEOs, [or] convicted criminals.”

The UI Fund: Why You Should be Watching

Author: David Woger 

The spotlight always seems to shine on the federal political scene but, with the Minnesota legislature in session, it is time to illuminate what’s happening closer to home. As we (hopefully) round the bend on the Omicron variant and as a return to a “new normal” no longer seems so out of reach, Minnesotans should turn their attention to the current state legislative session. This year, the legislature will tackle many important topics with lasting financial and practical impacts on the business community, including the looming tax base rate increase for the Unemployment Insurance Trust Fund (UI Fund).

LET THE LAWSUITS BEGIN. ARE YOU READY FOR CCPA 2.0?

My last post discussed the California Consumer Privacy Act (CCPA), the importance of getting ready
for enforcement by the California Attorney General beginning last July 1, and the likelihood of lawsuits under the CCPA’s “first of its kind” private right of action.

We have not yet seen any government enforcement actions by the California Attorney General’s Office, but warning notices have apparently been sent to businesses alleging violations of the CCPA. While the content of these notices is confidential, Stacey Schesser, California’s supervising deputy AG, shared some information at an International Association of Privacy Professionals event in July. According to Schesser, the letters mainly targeted businesses that were missing key privacy disclosures (such as a “Do Not Sell” link) on their websites or weren’t properly responding to consumer rights requests, including those relating to the right of access or deletion. The CCPA allows a business 30 days to cure its violation before the AG takes any action.

While waiting for government enforcement actions, we have seen at least 34 class actions filed under the CCPA, including one against Walmart. The retail giant was allegedly hacked, resulting in credit card information of Walmart customers being sold on the dark web where criminals and fraudsters operate with relative impunity.

Roger Scruton, Where We Are: The State of Britain Now (Bloomsbury, 2017).

No matter where you find yourself on the political spectrum, you can’t help but notice a certain isolationist trend sweeping across the globe. In our own country, there are tariffs, the wall, and stronger immigration controls. One might reasonably conclude that these policies can be traced, more or less, to this condition.

The United States is by no means the only nation affected. Many observers argue that reaction to the open-border policy dictated by its membership in the European Union lies behind the narrow referendum victory supporting the United Kingdom’s secession from that organization. This, of course, is an over-simplified view of the arguments supporting Brexit.

In fact, as the late Roger Scruton argues in Where We Are, the resentments arising out of the EEC’s open-border policy are merely a symptom of globalization, driven by advances in technology and the boundary-free nature of cyberspace. Cyberspace is “everywhere and nowhere,” a “world of constant information” connecting people to “networks rather than places.”  The internet, Scruton tells us, “is an unpoliced nowhere, a kind of Hobbesian state of nature in cyberspace . . . that cannot compete with the trustworthy somewhere for which all people yearn.”

For the entrepreneur, the direction of the global economy is clear: “In 2006 only one of the six most valuable companies in the Fortune 500 index was an information technology company; in 2016 only one was not such a company.” The unanswered question is whether the yearning for a homogenous “home” is an unavoidable byproduct of globalization and transformation to an information economy. 

My Valentine to the Presidents

It is February. Entrepreneurs are all about competition, so while we celebrate the birthdays of Washington and Lincoln, and enter the 2020 presidential election season in earnest, let’s have some fun and test your knowledge about our past presidents. (Answers are below)

Family Relations
1. Two pairs of father-son presidents.
2. Grandfather and grandson presidents.
3. Distant cousins.
4. Related to 11 presidents by blood or marriage (according to genealogists).

Birth
5. First American-born president
6. First president born outside of original 13 states
7. First president born west of the Mississippi
8. Presidents that were adopted
9. First president born in a hospital

Physical Attributes/Age
10. Tallest president
11. Shortest president
12. Youngest president (at time of taking office)
13. Oldest president (at time of taking office)

Marriage
14. Only bachelor president (never married)
15. Three presidents married while in office
16. Three presidents whose wives died while they were in office
17. First divorced president

Children
18. Only president to have a baby while in office
19. Most children
20. Only president with twins

Education
21. Nine presidents who did not go to college
22. President taught to read and write by his wife
23. First president to hold a doctorate degree

Will 2020 See a Comprehensive Federal Privacy Law?

I just finished presenting my second webinar on the new California Consumer Privacy Act (CCPA), which becomes effective January 1, 2020.  Not a lot of time left to get ready.

Businesses are frantically performing data mapping to find out what personal information they collect on California residents and for what purposes, revising their website privacy policies, implementing data security safeguards, reviewing vendor agreements, creating new procedures to respond to consumer requests for access to or deletion of data, purchasing cybersecurity insurance, and other activities necessary to comply with the CCPA.

Many are fearful of the lawsuits likely to follow as a result of the CCPA’s private right of action and provision for statutory damages of up to $750 per incident in the event of a data breach. If records of 50,000 California residents are involved in a data breach, and the business failed to have reasonable data security in place to protect against the breach, a potential claim under the CCPA could exceed $37.5 million. What’s more, under the CCPA, a plaintiff’s lawyer does not need to show any actual harm to an individual caused by such a data breach.  

This private right of action — and potential class action lawsuits enabled by this right — are scary.  

Similar to the CCPA, the Illinois Biometric Information Privacy Act (BIPA) — that regulates the collection, capture, and storage of biometric identifiers such as fingerprints, voiceprints, and retina/iris scans — also provides for a private right of action. Under the BIPA, a person can recover liquidated damages of up to $5,000 or actual damages, whichever amount is greater, for an intentional or reckless violation of the BIPA. In 2019 alone, there have already been over 160 class actions filed asserting BIPA violations. The Telephone Consumer Protection Act (TCPA) is another privacy related law with a private right of action that has led to an explosion of private lawsuits and multi-million dollar settlements. 

With statutory damages, private rights of action, and no need to allege or prove any actual injury or harm, BIPA, TCPA, and now the CCPA are open invitations to plaintiffs’ lawyers looking for potentially lucrative class actions.

Musings of a Privacy Professional

My random hopes, fears, thoughts, predictions, advice, and personal observations on GDPR, CCPA, NSA, and other privacy and data security matters:

• Despite the intense lobbying efforts of tech companies and others, Congress — fearful of the California Consumer Privacy Protection Act (CCPA), which becomes effective January 1, 2020 — will not pass a new comprehensive federal privacy and data security law this year.
• Plaintiffs’ lawyers will start gearing up for the class action lawsuits they hope to bring under the CCPA. Lawyers who have already benefited enormously from the Telephone Consumer Protection Act (TCPA) private right of action for noncompliant text messages and robo calls will likely add this new lucrative specialty to their practices.
• Regarding the General Data Protection Regulation (GDPR), fatigue has set in and, except for one large fine against Google, we have seen limited enforcement actions by the Europeans. Expect to see more actions against companies who have failed to comply with GDPR requirements regarding transparency, data breach, cross-border data transfer, and data access requests. It is never too late to consider a GDPR compliance review.

“Those who cannot remember the past are condemned to repeat it.” - George Santayana

I’m going to depart from discussing my usual intellectual property and technology subjects and step on my colleague Dave Morehouse’s toes with discussion of a book. Actually three books—Ken Follett’s Century Trilogy.  

The first book, “Fall of Giants,” follows five interrelated families from Wales, England, Russia, Germany, and the U.S. as they experience social and political issues at the time of the First World War. The second book, “Winter of the World,” continues with these five groups through the rise of the Third Reich, World War II, and the beginning of the Cold War. The third and final book, “Edge of Eternity,” continues the families’ stories in the 60’s, 70’s, and 80’s.

I first read these books as they were published between 2011 and 2014. While I don’t often reread books, particularly when they are this voluminous, I was recently drawn to them for a second look. If you have read Follett, you are familiar with his creative and interesting use of fictional characters and occurrences to illustrate and explain actual historical events. But unlike dry historical narratives, he gives you a sense of the human side of why things happened. In my initial read, I found the human stories to be most compelling, but viewed them largely in their historical context—things that happened 100, 80, and 50 years ago. In my second reading, I am drawn to the broader backdrop and some striking relevance to current social and political behavior.  

Ha-Joon Chang, 23 Things They Don't Tell You About Capitalism (Bloomsbury Press, 2012)

An interesting story popped up in my Facebook feed a couple of days ago. (Yes, my children have made me aware that Facebook is now so last decade.) The item called attention to the 10th anniversary of the collapse of Lehman Brothers, the former high-flying investment banking house whose bankruptcy presaged the coming of the Great Recession.

That got me thinking about how—or even whether—things have changed over the ensuing decade. This further led me to think about 23 Things, which, written by a Korean economist at Cambridge University, argues that “none of the causes of the crisis—toxic assets crippling balance sheets, collapse in housing markets, excessive personal and corporate debts—have been resolved.” Though perhaps a bit dated now, many of Chang’s specific points still hold up.

Let’s get one potential canard out of the way: Chang is no wild-eyed radical; from the outset, he makes clear his belief that, to paraphrase Winston Churchill, “capitalism is the worst economic system except for all the others.” That said, he offers a number of focused criticisms of dogmatic neoliberal beliefs about capitalism, each treated as one of the “23 Things” mentioned in the title. All of these “Things” expose fallacies in the belief that there is such a thing as a “free-market economy.”

MORE FAKE NEWS: INTERNET PRIVACY DEAD

Congress recently overturned online privacy rules created by the Federal Communications Commission (FCC) that would have applied to broadband providers like Comcast and Verizon who operate as internet service providers (ISPs).

The overturned rules were adopted last October under the Obama administration and had not yet gone into effect.  They would have required ISPs to obtain customer consent in advance – otherwise known as opt-in consent – before using or sharing sensitive information, including precise location, financial, and health information, social security numbers, web browsing history, app usage, and the contents of communications. The rules would have allowed ISPs to use less sensitive information (such as email addresses), unless customers specifically opted out or indicated that such use was not permitted. The ISPs would also have been required to clearly explain their privacy practices and implement best practices to maintain data security.

WWBD-What Would Brandeis Do?

In 1890 Louis Brandeis, as a young lawyer, was concerned about the use of the Kodak portable Brownie camera and journalists who wrote unseemly articles about celebrities, so much so that he and his law partner Samuel Warren developed the “right to be let alone” articulated in their article “The Right to Privacy” for the Harvard Law Review. Years later, Supreme Court Justice Brandeis expanded upon this concept in his famous 1928 dissenting opinion in Olmstead v. United States, enshrining the concept as a constitutional right to privacy.

Brandeis was one of the first to recognize the perils of technology and its impact on personal privacy and national security.  Modern jurists continue to cite Brandeis in their legal opinions regarding privacy rights, and his 1890 article continues to be one of the most cited law review articles. 

As If We Didn't Get Enough During the Campaign...

If you shop on Amazon, or watch the late night talk shows, you have probably seen the Make America Great Again Red Cap ornament (available at prices ranging from roughly $150 to over $200). It is listed on Amazon as “by Trump”.  Of course it is.

But just to be sure, I checked the United States Patent and Trademark Office records and confirmed that Donald Trump had indeed registered the mark MAKE AMERICA GREAT AGAIN for political action committee services and fundraising in the field of politics, as well as clothing, bags, buttons, bumper stickers, signage and similar items typically associated with political campaigns.  (The mark was assigned to the non-profit corporation Donald J. Trump for President, Inc., which currently owns the registrations, so “by Trump” may not be technically correct, but who really cares so long as the revenues are reported by the correct party.)

No Free Speech Rights Under Private Employers

Last week, we held a presidential election in this country. You may have heard about it.

When I woke up Wednesday morning (after very little sleep, like a lot of Americans), I found social media ablaze with fuel being thrown from all sides. I was barely two steps into Facebook when I found my first post from an employee (in addition to practicing law, I own a few companies, including a retail business) spewing some nasty words at another candidate’s voters. Jump two posts away, there’s a different employee posting a personal letter directed at all voters for the other top candidate.

John Meacham, Franklin and Winston: An Intimate Portrait of an Epic Friendship (Random House, 2004).

“The future is unknowable, but the past should give us hope.”

—Winston Churchill 

I write these words on the eve of the first debate between the two major party candidates for the American presidency in 2016. This year’s contest has me, like many of you, shaking my head with despair. Yes, I will vote for one of these candidates, but not with any enthusiasm. In that respect, I think I share something with most other Americans, regardless of whom they support. We’re choosing who we perceive to be the lesser evil, or even choosing one candidate simply because that candidate is not the other candidate.

Although this election has plumbed new depths when it comes to the popularity—or lack thereof—of the major party nominees, I have to remind myself that at times in the past the best of our leaders have been neither popular nor even merely likable. Jon Meacham, in his Franklin and Winston: An Intimate Portrait of an Epic Friendship, reminds us that neither Franklin Roosevelt nor Winston Churchill was a pillar of virtue, but “together they managed to bring order out of chaos,” which is a skill that is also useful if you are to be a successful entrepreneur.

Snowden: A Hero Or Traitor? Privacy vs. Security

Shortly after watching the new Oliver Stone film Snowden, I heard the news of bombs going off in New York City neighborhoods and an ISIL terrorist attack at a Minnesota shopping mall. Such terrorist attacks can color one’s view as to whether or not Snowden acted as a hero or traitor in his revelations concerning the mass government surveillance by United States government agencies.

In earlier blog posts I have written about privacy concerns vs. security, themes thoroughly explored in Snowden and Citizenfour (the more compelling Academy Award winning 2014 documentary), both of which I highly recommend. You should not, however, reach any conclusion as to whether or not Snowden is an ethical whistleblower or traitor simply based on these two films.

Both films make a strong case in support of a pardon for Snowden. The ACLU, Human Rights Watch, and Amnesty International are behind the campaign to pardon him.