FTC Must Refocus on Harm to Consumers and Competition

FTC_Man_Controlling_Trade

Federal agencies regularly use statistics to demonstrate their relevance and justify their exorbitant budgets. The Justice Department, for instance, boasts about the billions it brought in from False Claims Act lawsuits last year. The Environmental Protection Agency brags about the amount of fines and years in jail resulting from its enforcement actions in 2016. But the public is rarely provided concrete evidence of how those incarcerations and billions in fines, say, actually reduce contracting fraud or improve the environment.

So, too, with the Federal Trade Commission. In recent years, FTC hasn’t missed an opportunity to tout its statistical successes to the public and congressional appropriators. In the process of piling up the number of cases brought and fines extracted trumpeted by Chairwoman Edith Ramirez in her resignation press release, however, a critical limitation on FTC’s mission and authority has taken a backseat: the need to prove consumer harm. 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

FEDERAL REGULATORY READING LIST: Resources for New Employment and Workplace Agency Leaders

*Note: This is the first 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.

For the past eight years, employers have faced a dizzying array of new employment and workplace-safety regulations, guidance documents, and enforcement policies from the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB). Some of those new rules and directives departed dramatically from decades-old agency policies and practices.

Through its public-interest litigating, publishing, and communications capabilities, WLF influenced debates over those agencies’ 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 those agencies.  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

A 2017 Food-Court Resolution: End Regulation-through-Litigation Crusade Against Trans Fat

Partially hydrogenated oil chemical structure

Partially hydrogenated oil
chemical structure

In 2016, class-action lawsuits alleging that a processed food product or its labeling violated state consumer-protection laws continued to clog the federal courts, especially in California. The number of new food-related consumer class actions filed last year nearly equaled the number filed in 2015, according to a report in Food Navigator USA. It’s unclear whether these trends will hold in 2017, but there is one set of blatantly frivolous claims that should disappear this year: those that seek judicial regulation of products that contain partially hydrogenated oil (PHO), the main source of trans fat. A December 13, 2016 Southern District of California decision should frustrate such claims in the short term, and a forthcoming US Court of Appeals for the Ninth Circuit decision in a pending case may (and should) end them permanently. Continue reading

‘Amicus’ Briefs Support WLF’s ‘Gordon v. CFPB’ Cert Petition on Appointments Clause and Standing Issues

supreme courtOn November 17, 2016, Washington Legal Foundation petitioned the US Supreme Court to review a US Court of Appeals for the Ninth Circuit decision, Gordon v. Consumer Financial Protection Bureau. CFPB had pursued a substantial fine against WLF’s client, Chance Gordon, in June 2013, a time during which the Bureau lacked a properly appointed Director. Mr. Gordon’s petition argues that the attempted corrective action Richard Cordray took once he lawfully became CFPB Director—a blanket, retroactive ratification of all actions taken during his unconstitutional recess appointment—runs afoul of the US Constitution’s Appointments Clause (contained in Article II). Mr. Gordon also argues that because Mr. Cordray had not been properly appointed, CFPB lacked standing to pursue a claim against him in federal court.

This week, three organizations filed amicus curiae briefs with the Supreme Court in support of Mr. Gordon’s writ of certiorari. The briefs positively reinforce WLF’s two major justifications for the Court’s review of Gordon v. CFPB. The petition first argues that the Ninth Circuit’s acceptance of Director Cordray’s blanket ratification severely undermines a fundamental check on Executive power: the requirement that Congress must first approve presidential nominees before they can be lawfully appointed. The Gordon decision is also contrary to Supreme Court precedent and furthers a split in the circuit courts over when ratification of ultra vires administrative action is permissible. 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

A Sharing-Economy Giant Asserts its First Amendment Rights to Oppose Government Censorship

indexWhen prohibiting or reducing “harmful” economic conduct proves either politically unpalatable or otherwise unachievable, governmental regulators often target speech about the conduct as a convenient alternative. Rather than ban the sale of tobacco or sugary drinks, for instance, federal, state, and local governments have imposed restrictions on advertising and other promotional speech. Unable to generate support for a second Prohibition, temperance proponents have attempted to chill alcohol consumption through speech limits, such as proscribing disclosure of alcohol-by-volume percentage on beer labels and even censoring ads for happy hours. In 2016, the so-called sharing economy became the government’s latest target regulating conduct by proxy. Thankfully, online short-term rental platforms like Airbnb are fighting back with First Amendment challenges. Continue reading