FCC Should Not Remain Silent on Berkeley’s Junk-Science Wireless Warnings

harold_frRothGuest Commentary

By Harold Furchtgott-Roth and Arielle Roth, The Hudson Institute*

In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.

The ordinance requires that cell phone retailers inform customers of the following:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.

The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort. Continue reading

‘Chevron’ Deference Conflicts with the Administrative Procedure Act

faulkFeatured Expert Column − Complex Serial and Mass Tort Litigation

Richard O. Faulk, Hollingsworth LLP*


“It is emphatically the province and duty of the Judicial Department to say what the law is.”
Marbury v. Madison, U.S. 137, 177-78 (1803) (per Marshall, C.J.)

Judicial deference to agency interpretations of statutes and regulations is nothing new—but a trend toward more critical review is emerging. In the October 2014 term of the United States Supreme Court alone, three serious concerns about deferential review were recognized:

  • First, in King v. Burwell, the Court refused to defer to the Internal Revenue Service’s interpretations of the Affordable Care Act—because Congress did not expressly delegate interpretive power regarding this question of “deep economic and political significance” to the IRS, and because the IRS has no special competence in health care issues.
  • Second, in Perez v. Mortgage Bankers Ass’n, members of the Court expressed grave concerns about deference to an agency’s interpretation of vague and ambiguous regulations—especially when the agency itself was responsible for the ambiguities.
  • Finally, Justice Thomas wrote a compelling concurring opinion in Michigan v. EPA, in which he stressed that the Court’s continued allegiance to “Chevron deference”—under which courts defer to agencies’ interpretations of the statutes they are charged to administer—raises “serious” constitutional questions under the “separation of powers” doctrine.

Continue reading

Jay B. Stephens Succeeds Dick Thornburgh as Chairman of WLF Legal Policy Advisory Board

stephensWashington Legal Foundation today named Jay B. Stephens as Chairman of its Legal Policy Advisory Board. Mr. Stephens succeeds The Honorable Dick Thornburgh, who served as Chairman for 18 years. WLF’s Legal Policy Advisory Board includes over forty distinguished professionals from the government, private sector, academic, and public policy legal communities.

Mr. Stephens recently retired from Raytheon Company after serving for nearly 13 years as a member of the company’s senior leadership team. As Senior Vice President, General Counsel, and Corporate Secretary at Raytheon, he led the company’s corporate governance, risk management, and global compliance and ethics programs as well as its legal function, and participated in the company’s operational management and strategic planning.

Prior to joining Raytheon, Mr. Stephens had a distinguished career in the public and private sectors, serving as Associate Attorney General of the United States (2001-2002); United States Attorney for the District of Columbia (1988-1993); Deputy Counsel to the President of the United States (1986-1988); Deputy General Counsel of Honeywell International; and as a partner in the Washington office of a national law firm. In 2014, National Law Journal named him among the top fifty general counsel in America, and in 2015 the New York Stock Exchange Governance Services honored him with its Lifetime Achievement award.

Constance Larcher, WLF’s President and CEO, praised Governor Thornburgh for his nearly two decades of leadership of WLF’s Legal Policy Advisory Board:

We deeply appreciate Dick’s humble guidance, extensive involvement in WLF’s litigation, publishing, and communications programs, and devoted friendship. WLF is honored to have Jay Stephens as Dick’s successor, and we look forward to his direction of the Board and his engagement in WLF’s public-interest mission.

Mr. Stephens noted,

I am delighted to have the opportunity to work with the talented and dedicated team at WLF and to provide leadership to its very capable Advisory Board as together we advance the important public interest mission of WLF.  I look forward to building on Dick Thornburgh’s many significant contributions to the success of the Foundation’s mission of being an advocate for freedom, justice, and free enterprise.

With Recent Use of Disgorgement, FTC Continues to Sharpen its Enforcement Tools

amurinoFeatured Expert Column – Antitrust/Federal Trade Commission

Andrea Agathoklis Murino, Goodwin Proctor LLP

One need only check the headlines to see that enforcement of the antitrust laws is alive and well at the Federal Trade Commission (“FTC”) today. On both the merger and conduct front, the FTC’s Bureau of Competition has proven incredibly active—and successful. In a continuing example of its willingness to use all tools in its competition enforcement arsenal, the FTC resurrected use of its disgorgement authority in dramatic fashion, collecting nearly $27 million from Cardinal Health, Inc. (“Cardinal”) for conduct dating back to the early and mid- 2000s. The FTC’s willingness to challenge Cardinal’s conduct and the significance of the fine serve as reminders that the agency’s powers are broad and that under Chairwoman Edith Ramirez, the FTC will not hesitate to seek bold relief. Continue reading

Health Canada Gets it Right, While FDA Goes Further Astray, on “Added Sugars” Labeling

FDAIn a comment critical of his former employer’s proposal to mandate “added sugars” labeling, a former Director of the Food and Drug Administration’s Office of Food Labeling  wrote, “‘Added Sugar’ is the ‘bête noir‘ of this decade for many in the nutrition community.” That community’s obsession with added sugars has hit an all-time high (or low) with FDA’s July 27 release of a proposed rule that “supplements” its March 3, 2014 proposed revision of the ubiquitous food Nutrition Facts panel. While U.S. regulators have been busy affirming the righteousness of their irrational approach, health officials in neighboring Canada have taken a far more reasoned stance. The contrast between the latter’s position and FDA’s proposal is quite instructive.

“Added Sugars” Charade.  Sound science and the history of government nutrition policy dictate that narrowly focusing on one food, ingredient, or nutrient is exactly the wrong way to reduce obesity. Past government pronouncements on the evils of fat and cholesterol pushed consumers away from items such as lean meat and eggs, and toward products like fat-free cookies packed with sweeteners. Now, government is admitting that we shouldn’t worry so much about fat. It’s also no longer clear that salt deserves its status as a longtime public-health bogeyman. Continue reading

Fifth Circuit Requires Labor Department to Pay Attorneys’ Fees in Bad Faith Independent Contractor Suit

DOLGuest Commentary

By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.

In recent years, federal and state workplace regulators have put intense pressure on employers to move away from the use of independent contractors. This pressure was thrown into sharp relief in a recent U.S. Court of Appeals for the Fifth Circuit decision, Gate Guard Services L. P. v. Perez, involving a highly-questionable investigation and lawsuit by the Department of Labor (DOL).

Gate Guard Services is a company that provides gate attendants to oil companies at remote drilling sites. Gate Guard classifies its attendants as independent contractors because the attendants find their own relief workers, are not evaluated based on performance, are not restricted from working for competitors, and are not supervised by Gate Guard. The federal investigation arose from a conversation DOL investigator David Rapstine had with a friend, who complained about the wages he received when formerly working at Gate Guard. Rapstine believed Gate Guard attendants were employees and not independent contractors, and therefore believed Gate Guard may have violated the Fair Labor Standards Act (FLSA) by not paying overtime or keeping accurate records of attendants’ working hours. Continue reading

The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

supreme courtThe usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.

Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.

The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail.       Continue reading