Proposed FCC Privacy Rule Takes Unauthorized Aim at ISPs and the First Amendment

FCC*Jared McClain, WLF staff attorney, contributed to this post.

On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading

Justice Thomas’s Denial-of-Review Dissent in Judicial Deference Case Embraced View of WLF’s Amicus Brief

supreme courtForcefully dissenting from the Supreme Court’s denial of certiorari this week in United Student Aid Funds v. Bible, Justice Clarence Thomas repeated his clarion call to overturn Auer/Seminole Rock deference. That doctrine requires reviewing courts to give an agency’s interpretation of its own regulatory rules controlling weight, so long as that interpretation is not “plainly erroneous.”

WLF filed an amicus brief in the case urging certiorari. WLF’s brief, joined by Professor Philip Hamburger of Columbia University Law School, argued that by requiring judges to reflexively defer to the legal interpretations of federal bureaucrats in administrative agencies, Auer asks jurists to abandon their Article III duty of independent judgment. Even worse, we contended, when the agency to which a court must defer under Auer is a party to the litigation, Auer undermines the rule of law by creating a systematic bias in favor of the federal government in violation of due process of law.

Justice Thomas echoed similar concerns in his dissent, criticizing what he viewed as a “metastasized” deference doctrine “on its last gasp”:

More broadly, by deferring to an agency’s litigating position under the guise of Seminole Rock, courts force regulated entities like petitioner here to ‘divine the agency’s interpretations in advance,’ lest they ‘be held liable when the agency announces its interpretations for the first time’ in litigation. Christopher, supra, at ___ (slip op., at 14). By enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ in later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.’ Talk America, Inc., supra, at 69 (Scalia, J., concurring).

Over the past few years, Justices Alito and Roberts, as well as the late Justice Scalia, leveled similar criticisms at Auer deference. Here’s hoping that Justice Thomas’s jeremiad does not fall on deaf ears when a ninth justice is ultimately confirmed to the high court.

Feds Should Absolutely, Positively Abandon Bizarre Prosecution of FedEx—Overnight

barsLast term, in the now-infamous Yates case, the U.S. Supreme Court rejected the Department of Justice’s outrageous contention that an undersized Red Grouper thrown overboard by a commercial fisherman in the Gulf of Mexico was a “record, document, or tangible object” under the “anti-shredding” provision of the Sarbanes-Oxley Act.  By so doing, the Court prevented a law passed in the wake of corporate accounting scandals at Enron and WorldCom from becoming an all-purpose hammer for prosecutors.  Yates quickly became the poster child for the “overcriminalization” phenomenon.

Unfortunately, it appears that DOJ has not learned its lesson.  Although the phrase “tangible object” at issue in Yates was overbroad and ambiguous, in other cases the problem of overcriminalization arises when the government seeks to attribute a new, nonobvious meaning to long-understood, perfectly plain statutory language.  Nowhere is that problem better epitomized than in the federal government’s utterly bizarre ongoing criminal prosecution of FedEx, which is slated for trial next month in federal court in San Francisco. Continue reading

EPA Poised to Attempt Fracking Ban Through Orchestrated Settlements?

white flagReturning to the topic of hydraulic fracturing (see Mark Chenoweth’s May 4 post below), we note the lawsuit that the Natural Resources Defense Council (NRDC) and other environmental activists filed on May 4 against EPA, alleging that the agency simply is not doing enough to regulate fracking. Just two days earlier, the Colorado Supreme Court held that state law preempts efforts by local governments to regulate fracking. Perhaps that outcome dictated the timing of NRDC’s action. Such local ordinances are part of NRDC’s three-pronged approach to attacking this oil and natural-gas extraction method. The coalition of plaintiffs includes Earthworks, which intervened to defend the local ordinance in one of the Colorado cases. Continue reading

New Hampshire Court Deals Setback to Contingency-Fee “Parens Patriae” Suits

new hampshireFollowing the Supreme Court’s decision in Mississippi ex rel. Hood v. AU Optronics, state attorneys-general and their trial bar friends have been able to avoid federal court altogether by simply bringing their class and mass actions through the AG’s office as a parens patriae suit. Not only does this clever maneuver treat courtrooms as cash registers and corrode the integrity of the judicial process, but it also constitutes a staggering conflict of interest, as WLF has long argued. Continue reading

San Francisco’s Sweetened-Beverage Warning Mandate and Ad Ban Tread on First Amendment

GoldenGateIn past posts, we’ve characterized California as the “too much information” state. Under the everything-gives-you-cancer Proposition 65 law, even parking lots and coffee houses must post warning signs. San Francisco tried, and failed, to impose health warning signs at cellphone dealers. Undaunted, Berkeley passed its own cellphone warning ordinance this year, which faces a First Amendment challenge. And in the compelled speech spirit of those laws, Oakland has adopted an ordinance requiring builders to devote a certain square footage of new buildings to “public” art.

So it’s not surprising that San Francisco recently became the first city in America to require warnings on billboards and other media that promote “sweetened” beverages. Not content to simply compel speech, the Board of Supervisors also passed a sweeping ban on beverage advertising in certain city locales. The ordinances are so blatantly disrespectful of advertisers’ and consumers’ First Amendment rights, it’s not a question of whether a court will strike them down, but on which grounds it will do so. Continue reading

With “Ascertainability” Missing from Rule 23 Draft Reforms, Focus Remains on Courts

uscourtsThe WLF Legal Pulse has devoted a lot of digital ink to the issue of whether the members of a class action must be “ascertainable”—that is, capable of being feasibly identified. Opinions on this implicit class action procedural requirement have varied among the federal circuits and even within specific federal district courts. As an organization that generally favors uniformity, WLF was intrigued by reports that those responsible for making and amending the federal rules of civil procedure had ascertainability on their radar screen for class action rule reform.

The October 30-31, 2014 Agenda Book of the Advisory Committee on Civil Rules dumped cold water on the chances for a rule on ascertainability. The committee discussed the split among federal courts and concluded “in light of the likely difficulty of drafting rule provisions on class definition, the question is whether the problems described warrant making the effort.”

We can’t say we’re surprised, then, that the Advisory Committee’s Rule 23 Subcommittee left ascertainability out of its “draft concept amendments” for the class action rules, which can be read in the April 10-11 Agenda Book (starting on page 243). Considering what fellow legal reform enthusiast Andrew Trask of McGuire Woods LLP wrote on his blog about the Subcommittee’s proposals, perhaps we should be relieved ascertainability wasn’t also included. In any event, for the time being, class action defendants will have to continue fighting a court-by-court battle over this implied requirement.

As we’ve discussed previously, the U.S. Court of Appeals for the Ninth Circuit is poised to offer some clarity on ascertainability in Jones v. ConAgra. District courts in the circuit, especially within the Northern District of California (N.D. Cal., a/k/a The Food Court), have expressed divergent views on whether and how plaintiffs must demonstrate ascertainability.

For instance, in the Jones district court opinion, N.D. Cal. Judge Charles Breyer held that the plaintiffs must offer an objective and feasible method of identifying class members, though their failure to do so was not, by itself, fatal to their motion for class certification. Fellow N.D. Cal. Judge Samuel Conti, however, in Sethavanish v. ZonePerfect Nutrition Co., denied plaintiffs’ class certification motion entirely on the ground that they failed to demonstrate ascertainability. Continue reading