SCOTUS Report: A Fruitful Term for Free Enterprise, the Rule of Law—and WLF

supreme courtAn economic system based on free enterprise requires an objective, clear, predictable, stable, and uniform body of rules around which commercial enterprises can organize their business affairs. For 40 years, Washington Legal Foundation (WLF) has championed fundamental free-enterprise principles in courts and regulatory agencies, as well as in the court of public opinion.

Because the US Supreme Court has the last word on many laws and regulations that affect free enterprise, WLF focuses a significant portion of its litigation activities each year on convincing the justices to decide cases in a manner that promotes legal clarity and uniformity. This past term, which concluded at the end of June, was one of WLF’s most successful in its long history of Supreme Court advocacy. Our view not only prevailed in 8 of the 10 cases in which we filed amicus briefs on the merits, but in 6 of those 10 cases, WLF also successfully supported the Petitioner’s effort to obtain Supreme Court review. Below is a list of those cases with links to press releases and related WLF commentary:

Cases in which WLF filed briefs at the cert. and merits stages

Cases in which WLF filed a brief only at the merits stage

Most of those decisions, and others that impact America’s free-enterprise system, were discussed at WLF’s 28th annual end-of-the-term Supreme Court briefing:

Will “Kokesh v. SEC” Put a Kink in the Federal Trade Commission’s Disgorgement Hose?

Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

06633 - Royall, M. Sean ( Dallas )By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office.*

Ed. Note: This is Mr. Royall’s debut column as the WLF Legal Pulse‘s new Antitrust & Competition Policy, FTC “Featured Expert Contributor.” WLF recognizes and appreciates former FTC Featured Expert Contributor Andrea Murino‘s four years of serving in that pro bono position.

On June 5th, 2017, the Supreme Court held in Kokesh v. SEC that disgorgement is a “penalty” subject to a five-year statute of limitations under 28 U.S.C. § 2462.  With that ruling, the Court explicitly rejected the long-standing assertion of the Security and Exchange Commission (SEC) that it possesses authority to reach back indefinitely when seeking the disgorgement of ill-gotten gains.  While the Kokesh opinion explicitly limits its holding to disgorgement “as it is applied in SEC enforcement proceedings,”1 the Court’s logic extends to disgorgement actions brought by other agencies proceeding under analogous statutory authority, including the Federal Trade Commission (FTC). Continue reading

An Economic Reality: Uniform Regulatory Definition Needed for Who Is an “Employee”

DOLLast month, the Department of Labor (DOL) announced that its was withdrawing controversial policies that reflected how its Wage and Hour Division defined the terms “employer” and “employee” when enforcing the Fair Labor Standards Act (FLSA). DOL merited the applause its action received from regulated entities, but it is merely one small step in the direction of what franchisors, franchisees, “gig” economy participants, independent contractors, and other businesses desperately need: clear, uniform, and reliable standards that put an end to the “gotcha” game regulators and lawyers have been playing in recent years.

This part will focus here on standards for the term “employee”; a future post will address the need for uniformity in what constitutes an “employer.” Continue reading

As CMS Considers Restricting Access to Pain Medication, Greater Opportunities for Public Input Are Required

CMSThe 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

Briefing Program Assesses WLF’s Supreme Court Cert Petition in “Gordon v. CFPB”

Gordon v. CFPB: Will the High Court Halt an End-Run Around the Appointments Clause?

screen shot Gordon MB

To view this WLF Media Briefing program on our IBM Cloud Video channel click here.
To view the program on our YouTube channel, click here.

The program featured commentary on WLF cert petition on behalf of our client Chance Gordon currently pending before the US Supreme Court. The Court may decide as early as this Thursday, May 25, on our review request. WLF’s petition argues that the Consumer Financial Protection Bureau could not lawfully prosecute a claim against Mr. Gordon at a point when the agency lacked a lawfully appointed director.

Our Gordon v. CFPB page, which contains our briefs and press releases in the case, is available here.

Corrosive Legal Uncertainty Remains after DC Circuit’s Rehearing Denial in “Net Neutrality” Case

RothGuest Commentary

By Arielle Roth, The Hudson Institute*

It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case.  As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.

On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading

Department of Labor’s Fiduciary Rule Is Vulnerable on First Amendment Grounds

DOLPromulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading