Featured Expert Contributor — Antitrust & Competition, U.S. Department of Justice
Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP
In April of this year President Obama issued an executive order designed to “protect American consumers and workers and encourage competition in the U.S. economy … .” The order aimed to expand competition policy beyond just the Justice Department Antitrust Division (DOJ) and the Federal Trade Commission (FTC), and encouraged every federal agency to consider ways to enhance competition when drafting and enforcing each given agency’s regulations. A notable element of the President’s executive order was the promotion of competition in labor markets. The order asserted that the economic growth that flows from competitive markets “creates opportunity for American workers,” and that anticompetitive practices can reduce those opportunities. Continue reading
Tomorrow 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
When 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
*Michelle Stilwell, the Mary G. Waterman Fellow at WLF, significantly contributed to this post.
In what is poised to become an extremely influential case, the US Court of Appeals for the Federal Circuit is currently deciding what to do after the federal government unlawfully took over the equity and leadership of one of America’s largest private insurance companies, American International Group, Inc. (AIG), during the 2008 financial crisis. The government, in order to prevent AIG from declaring bankruptcy, offered it the customary Federal Reserve Act § 13(3) loan in the extraordinary sum of $85 billion. However, in a virtually unprecedented move, the government conditioned this loan on receiving 80% of AIG’s equity via preferred stock. This was an offer AIG couldn’t refuse, and it effectively diluted AIG’s shares and all but eliminated the voting and equity rights of the existing shareholders. So what did AIG’s shareholders receive in return for the extreme devaluing of their shares? Nothing. Not yet anyway. The lower court below held, in a lawsuit brought by AIG’s largest shareholder at the time, that the government’s action was illegal, but that no damages would be awarded. It is now up to the Federal Circuit to provide justice for AIG’s shareholders—and to make sure that the government has an incentive to obey the law in future financial crises. Continue reading
Prior to the US Supreme Court’s 2014 decision in Daimler AG v. Bauman, general jurisdiction existed over a business defendant in any state where it was incorporated, had its principal place of business, or its contacts were so “continuous and systematic” as to render them essentially at home in the forum state. Under this expansive interpretation, corporations could be subject to lawsuits in unpredictable and often remote jurisdictions.
Daimler significantly narrowed the reach of general jurisdiction by holding that because Daimler and MBUSA were neither incorporated nor had their principal place of business in California, Daimler’s contacts with California were not enough to render it at home in the state. Continue reading
By Grace Galvin, Washington Legal Foundation*
Technology is constantly changing, and the Federal Communications Commission (FCC), like everyone else, feels the need to keep up with the times. The agency’s recent efforts to maintain its role as the core regulator of the communications sector, however, has gotten it into a bit of trouble.
Washington Legal Foundation brought a panel of experts together on October 20, 2016, including FCC Commissioner Ajit Pai, former FCC Commissioner Harold Furchtgott-Roth, and administrative law attorney Brett Shumate of the Wiley Rein LLP, to discuss FCC’s increasing tendency to overreach the limits placed on it by the federal Telecommunication Act and the US Constitution.
Commissioner Pai looked back on recent years and said FCC has gotten into trouble with the courts “by forging ahead with what it considered to be good policy, regardless of legal consequences.” Federal circuit courts outside of D.C. have been quick to admonish the FCC for overstepping its statutory and constitutional boundaries. Continue reading