Three Federal Agency Proposals Exemplify Revived Commitment to Quantifying Costs and Benefits

redtapeAs part of the White House’s strategy to reform the administrative state, several federal agencies have proposed measures to improve the efficiency and transparency of the regulatory process. In recent months, the Environmental Protection Agency (EPA) and the Fish and Wildlife Service (FWS) have requested comments on cost-benefit analysis standards, while the Treasury Department and Internal Revenue Service (IRS) have proposed an economically significant rule that would require cost-benefit analysis.

Under previous administrations, agencies such as EPA and the Department of the Interior experimented with “social” harms and benefits, eschewing consideration of the economic effects of proposed and enacted regulations. The current administration has a justifiably low opinion of such amorphous measurements, and seeks to refocus regulators on quantifiable harms and benefits. Continue reading “Three Federal Agency Proposals Exemplify Revived Commitment to Quantifying Costs and Benefits”

Fourth Circuit Expands Federal Court Split on Standing in Data Breach Lawsuits

zucker_tFeatured Expert Contributor—Civil Justice/Class Actions

Talia M. Zucker, a Partner with Shook, Hardy & Bacon L.L.P. in its Miami, FL office, with Rachel Forman, an Associate with the firm.

Ed. Note: Ms. Zucker is pinch hitting in this Featured Expert Contributor column for our regular blogger, her partner Frank Cruz-Alvarez.

The U.S. Court of Appeals for the Fourth Circuit, in the consolidated appeal of Hutton v. National Board of Examiners in Optometry, No. 17-1506 (4th Cir. June 12, 2018), recently issued another opinion on Article III standing in a data breach case.  This time, however, the court found that the putative class members had Article III standing unlike the plaintiffs in Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), a case previously discussed in this column here.  In Hutton, the Fourth Circuit vacated and remanded the district court’s dismissal of the plaintiffs’ complaints against the National Board of Examiners in Optometry (“NBEO”) for lack of subject-matter jurisdiction and held that the plaintiffs sufficiently alleged the necessary injury in fact for Article III standing and that the injuries suffered were fairly traceable to the NBEO’s conduct.  Continue reading “Fourth Circuit Expands Federal Court Split on Standing in Data Breach Lawsuits”

Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

New “WLF Month in Review” Chronicles Our Litigation and Regulatory Filings and Results

WLF Month in ReviewWashington Legal Foundation has released the inaugural edition of a newsletter, “WLF Month in Review,” that will keep our supporters, friends, and other interested parties informed about the litigation briefs we have filed and the regulatory proceedings in which we are participating.

The August 2018 edition includes developments from June and July, and can be viewed here. If there is a particular item you are interested in, clicking on that item on the first page will take you to a full description.

Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant

GLFoodCourtWhen judges defer to an administrative agency’s interpretation of its own rule, targets of government regulation normally lose out. Private enterprises and organizations like Washington Legal Foundation have been urging the U.S. Supreme Court to reconsider Auer v. Robbins, the precedent that unleashed this doctrine that allows the proverbial fox to guard the hen house. We also routinely criticize class action lawsuits alleging that true statements on food labels are unlawfully false, misleading, unfair, or illegal.

It is not without a sense of irony, then, that we applaud a July 30, 2018 Central District of California opinion in Wilson v. Odwalla, which relied on “Auer deference” in granting the defenant’s motion for summary judgment in a consumer class action suit. The district court faithfully applied Auer to reach the correct decision. The Food and Drug Administration rule at issue in Wilson is clearly ambiguous—a key factor in the Auer analysis. Continue reading “Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant”

Supreme Court to Once Again Examine Limits of Rule 10b-5 Liability in October Term 2018 Case “Lorenzo v. SEC”

bainbridgeFeatured Expert Contributor, Corporate Governance/Securities Law

Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Rule 10b-5 long has been the centerpiece of the Securities and Exchange Commission’s antifraud enforcement efforts. At times, in fact, the SEC’s interpretation of the Rule has been so broad that the rule threatened to “become a universal solvent, encompassing not only virtually the entire universe of securities fraud, but also much of state corporate law.”[1] In a long series of cases, however, the U.S. Supreme Court has gradually imposed a series of important limits on the SEC’s scope.[2] By taking cert in Lorenzo v. SEC, the Court has given itself an opportunity to impose another such limit. Continue reading “Supreme Court to Once Again Examine Limits of Rule 10b-5 Liability in October Term 2018 Case “Lorenzo v. SEC””

Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge

FirstAmendmentBy Courtney Dean, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Restrictions on the speech of “disfavored” products merit all the more judicial scrutiny because they are easy targets for creating precedents. Earlier this summer, a federal court in the Western District of Missouri rightfully struck down three state restrictions on alcoholic beverage advertising. The court in Missouri Broadcasters Association v. Taylor reinforced the principle that states cannot arbitrarily stifle truthful, non-misleading commercial speech. Continue reading “Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge”