D-Link Enforcement Action Inspires New Challenge to FTC’s Jurisdiction Over Data Security

wimmer-kurtskeath-calebGuest Commentary

By Kurt Wimmer, a Partner, and Caleb Skeath, an Associate, with Covington & Burling LLP

The Federal Trade Commission (FTC) has commenced a new data security enforcement action, alleging that security weaknesses in D-Link’s routers and webcams violated Section 5 of the FTC Act.  The complaint highlights many of the FTC’s data security best practices, as examined in Washington Legal Foundation’s recent Working Paper, but also highlights new data security issues that the FTC has not previously referenced in its data security enforcement actions.  Unlike most FTC data security enforcement targets, D-Link has chosen to defend against the complaint instead of entering into a settlement agreement—and the FTC has decided to file its complaint against D-Link in federal court.  This action sets the stage for the next in a recent line of cases challenging the FTC’s data security enforcement authority.  Continue reading

FEDERAL REGULATORY READING LIST: Resources for New Leaders at the FCC

FCC*Note: This is the second 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. To see the first post in the series, discussing DOL, OSHA, EEOC, and NLRB, click here.

Rapid technological change has altered the way people communicate and consume information.  For the past eight years, the Federal Communications Commission (FCC) has been scrambling to adapt to this new reality while expanding its regulatory turf.  In the process, FCC has cut corners and imposed new regulations that chill innovation and investment.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over FCC’s 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 the agency.  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

Update: Colorado Sues Boulder County Over Divergent Oil and Gas Regulation

coloradoagA February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.

After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.

The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:

The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development.  Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance.  It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado.  Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.

A Q&A with Federal Regulation Scholar Susan Dudley on Reconsidering Regulations

dudleysusan-2015_crop_webSusan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.

WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation.  Let’s first talk about what Congress is doing.

Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it.  The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading

Third Circuit Hears Oral Argument in ‘In re Zoloft Products Liability Litigation’

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

A panel of the US Court of Appeals for the Third Circuit (Judges Chagares, Restrepo, and Roth) recently heard oral argument (audio recording here) in an important products-liability case that raises significant questions about the scope of Daubert.

In In re Zoloft Products Liability Litigation, plaintiffs allege that Zoloft—a prescription drug manufactured by Pfizer that is used to treat depression and anxiety—causes cardiovascular birth defects when used by a mother in the early stages of pregnancy. Because ethical concerns prohibit double-blind, randomized studies on pregnant women, research on birth defects must rely on less rigorous observational studies. Common scientific practice dictates that, even when a correlation has been found to be statistically significant within a narrow confidence interval, a single study remains insufficient to establish causation given the potential for random error, bias, confounding variables, or some other flaw with the study. Accordingly, scientists look to whether an observational study’s results can be replicated to determine whether causation exists. 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

Will Antitrust Class Action Involving Digital Store Dismantle ‘Illinois Brick’ Rule on Indirect Purchasers?

Antitrust & Competition — U.S. Department of Justice

swisherAnthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP, with Jody Boudreault, a Senior Associate with the firm.

In a departure from well-settled case law, the US Court of Appeals for the Ninth Circuit recently handed down a decision that may undermine the longstanding Illinois Brick doctrine. The policy implications of the decision bear further watching, as courts grapple with the rationale underlying the doctrine in an ever-evolving technological landscape.

The Illinois Brick doctrine has long been a tool to limit attenuated antitrust lawsuits, and ensure that those directly harmed by an antitrust violation are the ones who can recover damages caused by the violation. Simply put, the doctrine—so-called because it flows from the Supreme Court’s holding in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)—holds that the only parties who may recover damages for an antitrust violation are those who purchased directly from the offending firm. Indirect purchasers—i.e., the customers of the direct purchasers—are barred from recovery. Continue reading