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  Grant & Eisenhofer P.A.
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• Designated Defendants’ Counsel: Matthew A. Eisenstein
  Arnold & Porter Kaye Scholer LLP
  601 Massachusetts Ave., NW
  Washington, DC 20001-3743

Inside the Beltway Update

With possible action on a foreign aid package that may cost Speaker Mike Johnson (R-LA) his gavel, it’s safe to say this was a big week in Washington. More on that further down, but first, the Senate this week was unable to pass a bill that would have prevented implementation of the agency’s light-duty vehicle emissions rule until the end of the year. The bill, S. 4072, led by Sen. Mike Crapo (R-ID), was unable to garner the 60 votes required for passage. Even so, the bill garnered votes from some prominent Democrats, including Senate Banking Committee Chair Sherrod Brown (D-OH). Republican Conference Chair noted that the rule Republicans were seeking to repeal “is a crusade against consumer choice and convenience and affordability.” It’s also worth noting that President Biden had promised to veto this measure had it been passed, so it had no path forward, despite its bipartisan 52-46 final tally.

Also, this week, the House Ways and Means committee marked up and favorably reported two significant pieces of legislation aimed at preventing China and Chinese companies from dominating the EV market. The first bill, introduced by Rep. Carol Miller (R-WV), HR 7980, would tweak the tax credit qualifications that provide funds to individuals who purchase specific EVs. Specifically, it would bar any Chinese-made cars from qualifying for the EV tax breaks. The second, HR 7981, was led by Rep. Chris Smith (R-NJ) and would block “import of cobalt or lithium mined using child or forced labor.” It is particularly target at Chinese exploitation of Congolese child labor.

Additionally, a coalition of 25 states sued EPA over its light-duty emissions rule just hours after it was published in the Federal Register. “The Biden Administration is willing to sacrifice the American auto industry and its workers in service of its radical green agenda,” Attorney General Russell Coleman, who led the lawsuit, said in a statement.

Meanwhile, EMA signed onto a letter asking Congress to appropriate adequate funding for the Federal Trade Commission (FTC) in the upcoming FY 2025 Appropriations process so that the FTC can promote competition by strengthening enforcement of the Robinson-Patman Act (“RPA”). The RPA is the only federal price discrimination law to ensure a level playing field for the benefit of both businesses and consumers. Increased funding for the FTC will help with its authority under the RPA to bring enforcement actions against anticompetitive price discrimination. This price discrimination favors, among others, super stores and big box retailers, who gain a competitive advantage by purchasing merchandise at lower prices than their smaller to medium-sized competitors. In other words, convenience stores are at a competitive disadvantage when compared to other channels, be it big box, grocery or dollar stores, which often offer less expensive food and beverage products at retail than convenience retailers can obtain from the wholesale level. Some convenience store retailers have tried to purchase items at big box retailers since it can be cheaper than the wholesale price. Unfortunately, convenience store retailers receive retaliatory action from food and beverage suppliers and producers.

Unfortunately, the FTC has not brought a case under the RPA in more than 20 years. The FTC should investigate unlawful price discrimination at every level of trade that impacts the energy marketing industry. This should include the important issue of whether “channels of trade” distinctions are being used to evade laws against price discrimination. EMA backs the funding increase because it will strengthen FTC’s RPA enforcement efforts. Click here to read the letter.

And finally, the tension in the House. Earlier this week, after months of inaction, Speaker Mike Johnson released his plan for foreign aid funding that would provide aid to Ukraine, Taiwan, and Israel, as well as some other provisions around border security and the banning of TikTok. Unlike the combined package the Senate passed several months ago, the Speaker broke it into four separate bills and will seek to pass it this week. Like what he did when he broke the clean continuing resolutions into two separate, laddered bills. Unfortunately for Mr. Johnson, Rep. Marjorie Taylor Greene (R-GA) and a growing contingent of his party are threatening to remove him from his speakership should he move forward on this action. Given that Republicans have but a 2-seat majority in the House, the Speaker’s gavel is in jeopardy much like his predecessor’s. At this time, all signs seem to point to Democrats providing sufficient votes to block the ouster, however, we won’t know for sure until they’re forced to do so. If this contingent manages to oust the Speaker, it is unclear if they have a viable replacement that can garner the 50 percent of votes necessary to become Speaker and, almost more critically, until a new Speaker is elected, all other action in the House would stall. We expect this tension to come to a head over the weekend and will know more next week.

FTC to Finalize Non-Competes Rule Next Week

The Federal Trade Commission (FTC) will hold a special open meeting next Tuesday, April 23, to vote on whether to promulgate a final rule that would prohibit employers from enforcing non-compete agreements against most employees. The FTC issued a proposed rulemaking in January 2023, that broadly seeks to prohibit employers from imposing non-competes on workers (including independent contractors and unpaid workers), and the Commission’s ban would extend to all contract provisions that create “de facto” non-compete clauses. The proposed rule provides that the use of non-competes is an “unfair method of competition” that violates Section 5 of the FTC Act. Violations of the statute can result in fines, penalties, and injunctive relief.

Importantly, if the FTC finalizes the rule as proposed, it will apply retroactively and will require employers to proactively rescind most non-competes. Additionally, the FTC rule likely will preempt all contrary state laws. The Commission received over 26,000 comments on its proposed rulemaking, including oral testimony from EMA. Before the FTC can enforce the final rule, it must be published in the Federal Register, with employers required to comply 180 days after publication. However, delays in compliance are anticipated based on promised legal challenges from a number of business groups.

Energy Marketers of America Small Business Committee (SBC) PAC Co-Chairs Mike Downs and Tim Keigher would like to thank Ned Bowman and the Florida Petroleum Marketers Association, Inc. (FPMA), Philip Chamblee and the Mississippi Petroleum Marketers and CSA (MPM&CSA), Tim Keigher and the Nebraska Petroleum Marketers and Convenience Store Association (NPCA), Kris DeLair and the Empire State Energy Association, Inc. (ESEA), Mike Rud and the North Dakota Petroleum Marketers Association (NDPMA), and Emily LeRoy and the Tennessee Fuel & Convenience Store Association (TFCA) for donating auction items to support the EMA SBC PAC Auction and Raffle.

FPMA donated an All-in-1 multi-purpose tool for the home chef which offers the greatest functionality on the market, a set of four Apple Airtags with accessories that makes it super easy to keep track of your personal stuff, and an Ecovacs Deebot N10 Plus – Robot Vacuum and Mop Combo that’s a perfect solution for a clean home.

MPM&CSA donated an Indestructible Bluetooth Boombox that plays as hard as you do. Using the best Bluetooth wireless sound technology and an ultra-rugged Pelican case, this speaker is the toughest sound system around, and would certainly stand up to any adventures you've got lined up.

ESEA donated a Bottle of Blanton’s SFTB – it’s perfect for the connoisseur. The Blanton’s Straight from the Barrel brings forth a deep, delicious, and powerful tasting experience.

TFCA donated a Rory Sequins and Pearls Bracelet Stack - that you can feel the energy of the rainbow as you adorn your wrists, a Dolly Parton Rockstar Collectible Guitar Mini Skillet - perfect for a single portion of cornbread or to serve as a decorative item, a “Naked and Covered in Oil” Lodge Collectible Skillet is ready to bring cast iron cooking fun to your kitchen, grill, or campfire and both skillets come with the Skillet Full Cookbook. The Historic Preservation Society of South Pittsburg, Tennessee embraces the rich tradition of passing recipes from generation to generation with this cookbook.

NDPMA donated a 1998 Shell Tanker Truck that can be displayed in your office or at home. The tanker has a light, engine start-up, back-up alert and sounds. It is an eye catcher and a great item for a collector.

NPCA donated the PAC raffle item. The winner will enjoy one box of 24 Alec Bradley Magic Toast Toro Natural cigars, which deliver a medium to full-bodied smoke with a slight natural sweetness and one bottle of Whistle Pig 15, a subtle and nuanced whiskey, and an expression of Vermont’s finest, two 8 oz handblown Camels Hump Tumblers with USGS data of Camels Hump – Vermont’s most iconic peak standing at 4,083 ft – molded into the base of the glass and a set of 2 coasters of laser-cut birch with a cork backer. Tickets are $50 a piece, or 3 for $100.

The proceeds of the raffle will benefit the EMA SBC PAC. The money distributed to the PAC is used to benefit federal legislators who support the industry and have a solid record on key industry legislative issues.

We want to remind you about our format for the Annual Silent Auction and Raffle. This is our sixth year with C2Auctions. They will organize the EMA PAC Silent Auction during our EMA Day on the Hill Conference. All EMA members are eligible to participate from anywhere in the United States if they download the C2Auction App on their mobile phone. The PAC auction event is now live.

To access the bidding platform:

1. Text the word EMA to 71760

2. Click the text message reply link

3. Follow instructions to complete your registration

Once you have accessed your account, browse all items or search by item name to begin bidding. On each item, you will see various options:

1. ​Bid: Bid at the pre-assigned increment

2. Watch: Clicking "Watch" will put this item in your "My Items" box in the menu for easy access

3. Set Auto-Bid: Allows you to set a maximum bid. As others bid on this item, the system will automatically increase your bid, up to your maximum bid limit.

As you enter a winning bid or are outbid, you will receive a message alerting you of your status. You will be notified at the end of the Silent Auction if you are a winning bidder!

The Auction will take place in conjunction with Energy Marketers of America’s Washington Conference May 15-17 and bidding is now open and will close May 17 at 9 am Eastern. The auction items will be displayed at the Welcome reception on May 15. Last year there was tremendous support in contributions for the auction and EMA SBC PAC Co-Chairs Mike Downs and Tim Keigher urge your participation this year as well! Mike and Tim wish to remind you that donations can include use of personal vacation properties.

If you have items that you would like to contribute for the Silent Auction, please contact Sabrina Pitcher at 703-351-8000.

One of the most critical challenges facing family businesses is how to plan for the next generation. Issues include balancing the needs and expectations of family members, addressing conflicts, and ensuring the selection of capable successors.

Based on their skills and interests, there are distinct roles that rising family members might assume within a business — and the capabilities required can be very different. Implementing a business succession plan that encompasses these dynamics is a critical step towards success.

Please click here to read about Federated’s planning strategies and questions on this topic.

This article is for general information and risk prevention only and should not be considered legal or other expert advice. The recommendations herein may help reduce, but are not guaranteed to eliminate, any or all risk of loss. The information herein may be subject to, and is not a substitute for, any laws or regulations that may apply. Qualified counsel should be sought with questions specific to your circumstances. © 2024 Federated Mutual Insurance Company