D-Link Enforcement Action Inspires New Challenge to FTC’s Jurisdiction Over Data Security

wimmer-kurtskeath-calebGuest Commentary

By Kurt Wimmer, a Partner, and Caleb Skeath, an Associate, with Covington & Burling LLP

The Federal Trade Commission (FTC) has commenced a new data security enforcement action, alleging that security weaknesses in D-Link’s routers and webcams violated Section 5 of the FTC Act.  The complaint highlights many of the FTC’s data security best practices, as examined in Washington Legal Foundation’s recent Working Paper, but also highlights new data security issues that the FTC has not previously referenced in its data security enforcement actions.  Unlike most FTC data security enforcement targets, D-Link has chosen to defend against the complaint instead of entering into a settlement agreement—and the FTC has decided to file its complaint against D-Link in federal court.  This action sets the stage for the next in a recent line of cases challenging the FTC’s data security enforcement authority.  Continue reading

FEDERAL REGULATORY READING LIST: Resources for New Leaders at the FCC

FCC*Note: This is the second in a planned series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To see the first post in the series, discussing DOL, OSHA, EEOC, and NLRB, click here.

Rapid technological change has altered the way people communicate and consume information.  For the past eight years, the Federal Communications Commission (FCC) has been scrambling to adapt to this new reality while expanding its regulatory turf.  In the process, FCC has cut corners and imposed new regulations that chill innovation and investment.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over FCC’s policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas. Continue reading

Update: Colorado Sues Boulder County Over Divergent Oil and Gas Regulation

coloradoagA February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.

After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.

The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:

The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development.  Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance.  It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado.  Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.

A Q&A with Federal Regulation Scholar Susan Dudley on Reconsidering Regulations

dudleysusan-2015_crop_webSusan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.

WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation.  Let’s first talk about what Congress is doing.

Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it.  The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading

Fifth Circuit Rejects Rigid Interpretation of Removal Statute in Asbestos-Liability Case

5thCirWhen attempting to remove civil lawsuits from state to federal court, business defendants often must contend with not one, but two opponents. One opponent, of course, is the plaintiff, who prefers the home cooking of a local judge and jury. The second opponent is the federal district court judge, who may be loath to inflate the size of his docket. The US Court of Appeals for the Fifth Circuit late last month reversed one district court judge’s crabbed interpretation of a removal statute which consigned an asbestos-liability defendant to the notoriously pro-plaintiff Louisiana state courts. Continue reading

Third Circuit Hears Oral Argument in ‘In re Zoloft Products Liability Litigation’

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

A panel of the US Court of Appeals for the Third Circuit (Judges Chagares, Restrepo, and Roth) recently heard oral argument (audio recording here) in an important products-liability case that raises significant questions about the scope of Daubert.

In In re Zoloft Products Liability Litigation, plaintiffs allege that Zoloft—a prescription drug manufactured by Pfizer that is used to treat depression and anxiety—causes cardiovascular birth defects when used by a mother in the early stages of pregnancy. Because ethical concerns prohibit double-blind, randomized studies on pregnant women, research on birth defects must rely on less rigorous observational studies. Common scientific practice dictates that, even when a correlation has been found to be statistically significant within a narrow confidence interval, a single study remains insufficient to establish causation given the potential for random error, bias, confounding variables, or some other flaw with the study. Accordingly, scientists look to whether an observational study’s results can be replicated to determine whether causation exists. Continue reading

Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium

coloradoagIn the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.

That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading