US Supreme Court’s ‘Salman v. US’ Decision Answers One Insider-Trading Question, Leaves Others Unresolved

bainbridgeFeatured Expert Contributor — Corporate Governance/Securities Law

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

In Salman v. United States, the US Supreme Court returned to the problem of insider trading for the first time in almost two decades. The Court reaffirmed a rule from prior insider-trade caselaw that a gift of information between friends and family constitutes the requisite benefit. Justice Alito’s very brief opinion for a unanimous Court, however, left a number of more difficult questions unresolved.

Bassam Salman was convicted of insider trading for using information he had received from a friend and relative by marriage named Michael Kara who, in turn, had received the information his brother Maher Kara, who was a Citigroup investment banker. Salman argued that liability in such cases should arise only when “there is proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” citing the Second Circuit’s decision in United States v. Newman. Continue reading

Ninth Circuit Holds Anti-GMO Regulations in Hawaii Preempted by Federal and State Law

9thCirOn November 18, the US Court of Appeals for the Ninth Circuit held that federal and state law preempted three county laws in Hawaii that put restrictions on commercial farmers’ planting of genetically-engineered seeds.  The WLF Legal Pulse blogged about the oral arguments this summer.  The decisions, Atay v. County of Maui, Hawaii Papaya Industry Assoc. v. County of Hawaii, and Syngenta Seeds, Inc. v. County of Kauai, collectively represent a win in the fight against unscientific regulations on so-called Genetically Modified Organisms (GMO), and highlight the need for uniform, national rules.

The cases arose when the three Hawaii counties, Maui, Hawaii, and Kauai, passed anti-GMO ordinances.  Those of Maui and Hawaii banned outright the growing of genetically modified crops, while Kauai’s ordinance created an extensive public-disclosure scheme for anyone using certain pesticides—the application of which is an essential part of modern commercial farming.  Local farmers and seed suppliers challenged the three ordinances, alleging that they were preempted by federal and state law. Continue reading

DOJ Announces Intent to Go Criminal in Wage-Fixing and No-Poaching Antitrust Cases

swisherFeatured Expert Contributor — Antitrust & Competition, U.S. Department of Justice

Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP

In April of this year President Obama issued an executive order designed to “protect American consumers and workers and encourage competition in the U.S. economy … .” The order aimed to expand competition policy beyond just the Justice Department Antitrust Division (DOJ) and the Federal Trade Commission (FTC), and encouraged every federal agency to consider ways to enhance competition when drafting and enforcing each given agency’s regulations. A notable element of the President’s executive order was the promotion of competition in labor markets. The order asserted that the economic growth that flows from competitive markets “creates opportunity for American workers,” and that anticompetitive practices can reduce those opportunities. Continue reading

CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech

rublin_burt_102_recodelnero_daniel_2Guest Commentary

By Burt M. Rublin, Partner, and Daniel L. Delnero, Associate, Ballard Spahr LLP

Prior restraints on speech are highly disfavored and presumptively unconstitutional. See Tory v. Cochran, 544 U.S. 734, 738 (2005) (“Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”). Yet the Consumer Financial Protection Bureau (CFPB) proposed exactly that in its Proposed Rule Relating to Disclosure of Records and Information (Proposed Rule), CFPB-2016-0039, 81 Fed. Reg. 58310 (Aug. 24, 2016). CFPB seeks to prohibit the recipient of a civil investigative demand (CID) or letter from the agency providing notice and opportunity to respond and advise (NORA letters) from disclosing the CID or NORA letter to third parties without prior written consent of a high-ranking CFPB official.  In effect, this would constitute a “gag” rule that would stifle constitutionally protected speech.

The proposed gag rule is not only ill-advised as a matter of public policy, it is also unconstitutional both as a prior restraint on speech and a content-based restriction.  It would be subject to strict scrutiny, and the CFPB would have to show a compelling government interest to justify it, which it could not.  Indeed, CFPB has not claimed, nor could it claim, that the absence of a similar gag rule since the creation of CFPB has hindered or impaired its effectiveness.  Continue reading

Bad-Faith Federal Litigation Tactics Compel Court to Award Small Business Attorneys’ Fees

usctfedclaimsTomorrow is “Small Business Saturday,” (November 26), so it’s a good time to reflect upon the especially challenging regulatory and legal environments such businesses have faced in recent years. Even though the federal government maintains an entire agency whose mission is purportedly to assist small businesses—the Small Business Administration—regulators seem ever oblivious to their impact on entrepreneurs. The National Labor Relations Board’s (NLRB) effort to redefine who is an “employer” and the NLRB’s and the Department of Labor’s (DOL) enmity toward independent contracting are two current examples. A third is DOL’s so-called Fiduciary Rule, which hits sole-practitioner and small-business investment and insurance advisors especially hard.

Small businesses are also at a particular disadvantage when disputes with the government end up in court. A recent US Court of Federal Claims decision, SUFI Network Services, Inc. v. US, exhibits government’s unfortunate willingness to exploit its power in disputes with a small business and the role courts can play in protecting entrepreneurs’ rights. Continue reading

Supreme Court Given Opportunity to Clarify Specific Personal Jurisdiction

eric-millerGuest Commentary

By Eric D. Miller, Partner, Perkins Coie LLP*

A pending petition for a writ of certiorari presents the United States Supreme Court with an opportunity to clarify whether a state may exercise personal jurisdiction over a nonresident defendant based solely on the defendant’s sale of components to third parties who incorporate those parts into finished products that are then sold in the forum State.

That question has divided the lower courts since Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). In that case, Asahi, a Japanese manufacturer, had delivered tire-valve assemblies to a Taiwanese tire manufacturer that sold tires throughout the world, including in California. After a California resident was injured in an accident caused by a defective valve, he sued Asahi in California state court. The Supreme Court held that Asahi was not subject to personal jurisdiction in California, but no rationale commanded a majority of the Court. Justice O’Connor, writing for four justices, concluded that the connection between the defendant and the forum state necessary to establish specific personal jurisdiction “must come about by an action of the defendant purposefully directed toward the forum state.” In her view, placing a product “into the stream of commerce, without more,” is not such an act. Justice Brennan, on the other hand, wrote for four justices who believed that placement of goods into the stream of commerce, with the knowledge that they will ultimately be sold in a state, can be sufficient for jurisdiction in that state. Continue reading

Federal Judge “SLAPPs” Down Lawsuit Demanding “R” Rating for All Movies Depicting Tobacco Use

ratingsOn November 10, 2016, a California federal judge dismissed a putative class-action lawsuit designed to force the Classifications and Rating Administration (CARA) to give an “R” rating to any film containing tobacco use.  Alleging that around 200,000 young people would start smoking every year after seeing tobacco use in G, PG, and PG-13 rated movies, the plaintiff in Forsyth v. Motion Picture Association of America, Inc. sued the Motion Picture Association of America (MPAA) (CARA is operated as a division of the association), the National Association of Theater Owners, and various major movie studios.  Because injunctive relief alone isn’t enough in most class actions, the complaint also sought $20 million in damages. Continue reading