Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregBy Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Thomas J. Krysa, a Shareholder with the firm in its Denver, CO office.

In a much watched Foreign Corrupt Practices Act (FCPA) case that originated in the U.S. District Court for the District of Connecticut, the U.S. Court of Appeals for the Second Circuit recently held in U.S. v Hoskins that a foreign national who is not employed by a U.S. company cannot be guilty of violating the law as an accomplice or co-conspirator. In so ruling, the court directly contradicted a 2012 FCPA guide promulgated jointly by the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ).  A unanimous three-judge panel held that “the government may not expand the extraterritorial reach of the FCPA by recourse to the conspiracy and complicity statutes.”  This decision is significant because it clarifies federal regulators’ and prosecutors’ jurisdiction over nonresident foreign nationals. Continue reading “Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA”

FDA-Mandated Listing of Drug Prices in Ads Would Flunk Legal and Constitutional Tests

first-amendmentWe’ve read with amusement the recent, overblown claims of some constitutional-law commentators and even U.S. Supreme Court justices that the First Amendment has been “weaponized” as a tool of deregulation. Of course, First Amendment challenges increasingly have become indispensable as politicians and regulators target more and more speech rather than regulate conduct directly.

Consider, for instance, the advertising-disclosure requirement floated last May as a part of the Department of Health and Human Services’ (HHS) blueprint to lower prescription drug prices. HHS asked the Food and Drug Administration (FDA) “to evaluate the inclusion of list prices in direct-to-consumer advertising.” The proposal appears to be under serious consideration. HHS Secretary Alex Azar has specifically invoked it when briefing the press and testifying before two Senate committees (here and here). And FDA Commissioner Scott Gottlieb indicated (in a May interview) that an agency working group will soon study the idea.

If that study includes a dispassionate legal and constitutional analysis, the working group should recommend that HHS scrub the list-price mandate from its policy blueprint. Not only does FDA lack the statutory authority to impose the mandate, but even if it could legally do so, the regulation cannot survive a First Amendment challenge. Continue reading “FDA-Mandated Listing of Drug Prices in Ads Would Flunk Legal and Constitutional Tests”

Wake Up, California Millennials: Rent Control is a Generational Con Game

In 2012 the IGM Forum polled some economists about rent control. Each economist was asked to agree or disagshell gameree that rent control promotes affordable housing, and to state the degree of confidence, on a scale of 1 to 10, he invested in his response. Weighted for confidence, 95 percent of the economists disagreed, four percent felt unsure, and one percent agreed. Support for rent control received one vote, with a confidence of 3.

Nobel laureate Angus Deaton, a dedicated analyst of the causes of poverty, voted “strongly disagree,” confidence 9. Richard Thaler, another Nobel Prize winner, likened rent control to geocentrism.

In 1995 California barred cities from imposing rent control on houses or new apartments. This November Californians will vote on Proposition 10, a repeal of that ban. California’s ruling party asked its executive board whether to endorse the measure. Ninety-five percent said yes. Continue reading “Wake Up, California Millennials: Rent Control is a Generational Con Game”

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.