EPA Uses “Sue and Settle” to Impose Regulations on Unsuspecting Industries

EPA-LogoIn recent years, EPA and other federal agencies have sought ways to circumvent the strictures of notice-and-comment rulemaking. One popular method became known as “sue and settle.”

Here’s how it works: An advocacy group files suit demanding that a federal agency impose new or stricter regulatory standards on a business or even an entire industry. Instead of defending, the agency accedes to the activist group’s demands, negotiates a private agreement, and then seeks court approval through the consent-decree process. Some consent decrees have arisen from lawsuits that demand an agency perform a nondiscretionary statutory mandate that it has failed to implement, while others call for entirely new uses of regulators’ discretionary authority. Sue-and-settle agreements frequently shorten the amount of time for public comment on the agency action arising from the settlement or curtail the time an agency has to review public comments before finalizing a rule. Continue reading


DOJ*Note: This is the third in a 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 read posts addressing other federal agencies, click here.

As the federal government’s primary prosecutor, the Department of Justice (DOJ) serves an important role in enforcing criminal penalties.  However, DOJ frequently oversteps its bounds and advances overzealous enforcement policies.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over DOJ’s recent policies and actions with timely papers and blog commentaries, and weighed in directly through amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  This post provides a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.

Overcriminalization Timeline

In November 2015, WLF released the third edition of its Timeline: Federal Erosion of Business Civil Liberties (Overcriminalization Timeline).  Each category in the Timeline reflects a separate concern with DOJ’s approach to white-collar criminal enforcement: mens rea, DOJ criminal enforcement, attorney-client and work product privileges, deferred prosecution and non-prosecution agreements, and criminal sentencing. Continue reading

US House of Representatives Disapproves OSHA Rule Recently Analyzed in WLF Paper

oshaThe US House of Representatives passed a resolution on March 1, 2017 under the Congressional Review Act (CRA) disapproving an Occupational Safety and Health Administration (OSHA) rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”

A February 24, 2017 Washington Legal Foundation Legal Opinion Letter, OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission, explained how the late-December 2016 rule essentially overturned a 2012 federal appeals court decision. That decision held that an OSHA recordkeeping rule’s continuing obligation to make or update records conflicted directly with the Occupational Safety and Health Act’s six-month statute of limitations. The WLF paper’s author, Eric J. Conn, Co-Founder and Chair of the OSHA Practice at Conn Maciel Carey PLLC, wrote of the rule acted on by the House:

This is an untenable policy for the nation’s employers, which are entitled to a short, fixed period of repose in order to fairly defend OSHA citations.  The new rule also undermines the OSH Act’s intent to encourage prompt resolution of workplace-safety hazards.  Following OSHA’s logic, were OSHA to extend the retention period in § 1904.33(a) from five to ten to 30 years, the statute of limitations for recordkeeping citations would be extended with it, further subverting Congress’ intent.

Action of the OSHA rule now moves to the US Senate, which would consider a similar CRA resolution.

Change Coming for SEC’s Controversial Conflict Minerals Rule

Featured Expert Contributor — Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Section 1502 of the 2010 Dodd-Frank Act required the Securities and Exchange Commission (SEC) to develop disclosure rules requiring public companies to disclose whether their products contained “conflict minerals.” The minerals in question included cassiterite, columbite-tantalite, gold, wolframite, or their derivatives, all of which are used in a variety of common products, including computers, smart phones, and other everyday technology. In order to be deemed conflict minerals, they had to be sourced from the Democratic Republic of the Congo (DRC) or its adjoining countries. Continue reading

Are Anti-SLAPP Statutes Toothless in Federal Courts?

cnnAs the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly. Continue reading

Fourth Circuit Reaffirms “Daubert”’s Scope and Reliability Requirement in Important Products-Liability Case

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.

Even though Daubert v. Merrell Dow Pharmaceuticals, Inc. has been the law of the land for over two decades, questions about its scope and the responsibility of the district courts to serve as gatekeepers continue to abound. In Nease v. Ford Motor Co., a recent US Court of Appeals for the Fourth Circuit case, the district court allowed an engineer to testify as an expert even though he had never tested his hypothesis, had no examples of his hypothesis occurring in the real world (including in the instant case), and had relied on an outdated safety manual in forming his conclusions. This abdication of the district court’s gatekeeping responsibilities resulted in the admission of junk science masquerading as expert testimony and a $3 million jury verdict in the plaintiffs’ favor. The Fourth Circuit unanimously reversed in an opinion that strongly reaffirms Daubert’s breadth and importance. Continue reading

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