Administrative Agency Civil Procedure

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NY regulator settles lawsuit filed using Dodd-Frank authority

A settlement has been announced in the lawsuit filed by Benjamin Lawsky, the Superintendent of the New York Department of Financial Services, using his Dodd-Frank Section 1042 authority. Section 1042 allows state attorneys...more

Court Vacates Imminent Bar To Third-Party Employer's Claiming Companionship/Live-In Domestic Exemptions

We have reported that the U.S. Labor Department's changes in its regulatory provisions affecting the federal Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and the FLSA's Section 13(b)(21) overtime...more

Top 5 Securities and Corporate Governance Litigation Developments of 2014

This year will be remembered as the year of the Super Bowl of securities litigation, Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”), 134 S. Ct. 2398 (2014), the case that finally gave the Supreme Court the...more

Accidental Disclosure Waives Privilege Under Public Records Act

Court of Appeal Says Privilege Removed Under PRA By Inadvertent Disclosure of Privileged Documents - If a privileged document is accidentally released to the public during compliance with a Public Records Act request,...more

SEC’s Second Amicus Brief On Whether Dodd-Frank Protects Internal Reports

On December 11, 2014, the SEC filed an amicus brief in support of Plaintiff-Appellant Mikael Safarian asking the Third Circuit to revive his Dodd-Frank whistleblower claim and endorse the agency’s definition of...more

D.C. District Court Dismisses Lawsuit Challenging Backlog of Medicare Appeals

On December 18, 2014, the U.S. District Court for the District of Columbia dismissed a lawsuit filed by the American Hospital Association (AHA) and others to compel the Secretary of HHS to process Medicare reimbursement...more

District Court Rejects Constitutional Challenge to SEC Administrative Proceedings

We recently wrote that critics, including Judge Jed Rakoff, have been questioning the SEC’s policy of increasingly bringing enforcement actions in its administrative forum rather than federal court. We noted that several...more

No Need to Mail Process to the Government on a Saturday, Even if the Post Office Is Open

In Wisconsin, a party seeking judicial review of an administrative decision must, within 30 days of service of the agency decision, file a petition for review in the trial court and serve the agency with a copy of the...more

California Court of Appeal Holds the Six Month Time Limitation for Government Claims Was Extended When Parents of Molestation...

In J.P. v. Carlsbad Unified School District, the California Court of Appeal for the Fourth District found that CUSD could not assert that government claims were untimely when CUSD prevented the parents of molestation victims...more

District Court Limits Tiering of Biological Opinions

On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to...more

Procedural Errors Don’t Alter Standard of Review In ERISA Claim for Benefits

The Ninth Circuit recently held that where an ERISA plan provides the plan administrator discretionary authority to determine benefit claims, procedural violations that occur during the course of the administrative claims...more

Judge Koh Awards Double Victory in “Natural” Labeling Class Action Against Dole, Granting Decertification and Summary Judgment

As the food “misbranding” litigation continues to fill courts’ dockets, Judge Lucy H. Koh recently put an end to the two-year battle against Dole’s packaged fruit labeling in the Northern District of California. Dole...more

Don’t Tell the Government “It Wasn’t Me”: ASBCA Holds Contract Void Ab Initio for Fraud

In the Appeal of Vertex Construction & Engineering, ASBCA No. 58988, decided last month, the Armed Services Board of Contract Appeals (“ASBCA”) exercised a “harsh” remedy in declaring Appellant’s contract void ab initio...more

Searching for Greener Pastures: SEC Insider Trading Enforcement in a Post-Newman Era

In United States v. Newman, the U.S. Court of Appeals for the Second Circuit dealt a substantial blow to federal prosecutors’ epic crackdown on insider trading by raising the bar for the government’s burden of proof in...more

Illinois Supreme Court Agrees to Decide Whether Pension Board's Disability Finding is Preclusive in Employee Benefits Act...

In the closing days of its November term, the Illinois Supreme Court agreed to decide whether a pension board’s finding that an officer is disabled for pension purposes is preclusive of the employer’s liability for health...more

Illinois Supreme Court Agrees to Decide FutureGen Clean Coal Dispute

In the closing days of its November term, the Illinois Supreme Court agreed to decide an issue of potentially enormous consequence to a major Illinois utility, agreeing to review an order of the Illinois Commerce Commission...more

Illinois Supreme Court to Tackle Election Law and Sovereign Immunity on Thursday

The Illinois Supreme Court just announced that on Thursday morning, it will hand down decisions in two civil cases: Bettis v. Marsaglia, No. 117050 – “Does a plaintiff’s failure to name the Electoral Board as a party...more

Inadvertent Disclosure of Privileged Documents in Response to a Public Records Act Request Converts the Document Into a Public...

The Court of Appeal, Second Appellate District, delivered a sobering reminder to public agencies to carefully review documents produced in response to the Public Records Act (“PRA”) to avoid disclosure of documents protected...more

Seventh Circuit Finds No ADA Liability for Employer Not Involved in Decisionmaking

Joyce Whitaker began working for Milwaukee County as a corrections officer in 2001. In 2005, she sustained a work-related back injury and subsequently was diagnosed with several related medical conditions. As a result, her...more

SEC Seeks To “Overrule” Fifth Circuit Whistleblower Interpretation

In Asadi v. G.E. Energy United States, L.L.C., 720 F.3d 620 (5th Cir. 2013), the Fifth Circuit Court of Appeals held that an employee who reported a suspected Foreign Corrupt Practices Act violation internally but not to the...more

Suit to Enjoin SEC Forum Selection Dismissed

Many have expressed concern regarding the increasing use of administrative proceedings by the SEC. Those concerns range from the fairness of the forum to the impact of its lack of discovery on complex cases to the right to a...more

FERC Will Seek Supreme Court Review of the Decision Striking Down Order 745

Last Friday, FERC sought a further stay of the decision by the D.C. Circuit Court of Appeals striking down FERC Order 745. Whereas the United States had previously only indicated that it was considering filing a cert....more

Pitchess Motions in Administrative Hearings

California Supreme Court Holds Administrative Hearing Officers Have Authority to Grant Pitchess Motions for Discovery of Personnel Disciplinary Records - Overview: The California Supreme Court has ruled that...more

Appeals Court Vacates DOL Rule Authorizing Use of Skill-Based Private Wage Surveys in H-2B Temporary Labor Certification...

On December 5, 2014, a panel of the U.S. Court of Appeals for the Third Circuit issued an opinion vacating the Department of Labor (DOL) regulation and related guidance memorandum authorizing DOL, at the request of the...more

AHA Proposes Putting RACs on the Rack

The American Hospital Association formally proposed last week that Recovery Audit Contractors (RACs) be fined when their denials are overturned on appeal....more

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