Featured Expert Column:
Antitrust & Competition Policy — Federal Trade Commission
By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office, and Ashley M. Rogers, an Associate Attorney in the firm’s Dallas, TX office.
On July 17, 2017, Federal Trade Commission (FTC) Acting Chairman Maureen K. Ohlhausen announced internal process reforms that aim to “streamline information requests and improve transparency” in the agency’s consumer-protection investigations. According to the announcement, going forward the Bureau of Consumer Protection will:
- provide “plain language” descriptions of the civil investigative demand (CID) process the agency uses as its primary tool for gathering information during investigations on a compulsory basis;
- provide “more detailed” descriptions of the scope and purpose of investigations;
- limit the relevant time periods covered by CID informational requests;
- “significantly” reduce the length and complexity of CID instructions for providing electronically stored data; and
- increase the time available to respondents to respond to agency CIDs.
The Centers for Medicare and Medicaid Services (CMS) is ramping up efforts to limit patients’ access to pain medication without giving affected parties sufficient notice or opportunity for comment. Since the start of 2017, CMS has released three separate guidance documents on how insurers and payers should impose new limits on the use of opioids. While opioid abuse undoubtedly presents a serious public health issue, CMS should take steps to foster transparency and avoid harming patients and providers alike by offering them a meaningful opportunity to participate in the development of policies that could limit pain management. CMS also must do more to ensure that it adheres to statutes requiring complete openness whenever it solicits advice from advisory committees that include members who are not federal government employees. Continue reading
On the eve of the inauguration, many industries and businesses await the changes a new administration will bring. In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”
Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses. Not surprisingly, however, the initiative quickly expanded. By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading
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
On May 24, 2016 a subcommittee of the House of Representatives Energy and Commerce Committee held a hearing on a number of bills (17, to be exact) regarding the Federal Trade Commission’s consumer-protection mission. A number of proposals seek to fortify the vigor and transparency of the economic analysis FTC must perform when taking action against alleged “unfair” acts or practices under § 5 of the FTC Act. Some observers, (including former FTC Commissioner Josh Wright, who testified at the hearing) feel the Commission often gives short shrift to the “not-outweighed-by-countervailing-benefits-to-consumers-or-competition” language in the statute’s Unfairness Statement.
Wright’s testimony offers as an example the Commission’s 2014-2015 actions against several mobile app sellers’ “in-app purchase” sales practices. While on the Commission, Wright dissented from FTC’s complaint that Apple acted unfairly in how it designed the mechanism for app buyers to make purchases within the app. FTC alleged that Apple did not do enough to prevent children from making in-app purchases their parents did not authorize. In his dissent, Wright criticized FTC for failing to consider the countervailing benefits of Apple’s approach, such as relieving consumers of the need to constantly enter passwords, as well as the costs associated with government micromanagement of app design. Continue reading
Returning 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
In 1996, a heavily armed team of EPA criminal investigators raided a facility of Louisiana company Trinity Marine Products, Inc. Three years later, the federal government indicted the company and manager of the raided facility, Hubert Vidrine, for illegally storing hazardous waste without a permit. The U.S. Attorney dismissed the indictment in 2003. On February 8, 2016, 20 years after the EPA raid, the U.S. Court of Appeals for the Fifth Circuit has cleared the path for the company to at last pursue Federal Tort Claims Act (FTCA) remedies against the government. As we explained in a WLF Legal Pulse post, Mr. Vidrine, with assistance from WLF attorneys, won a $1.7 million malicious-prosecution claim under the same law in 2011. Continue reading