News & Analysis as of

The Supreme Court

The Supreme Court of the United States issued decisions in four cases today: Campbell-Ewald v. Gomez, No. 14-857: Respondent Jose Gomez received Navy recruitment text messages without his consent. He filed a nationwide...more

Supreme Court grants Certiorari in Texas v. USA

Tuesday, the Supreme Court granted certiorari in Texas v. USA, setting the stage for a blockbuster opinion on the legality of the centerpiece of President Obama’s program to lift the threat of deportation and provide...more

Supreme Court Agrees to Review Major Immigration Case Just as the Presidential Election Heats Up

Immigration is already a major issue in this year’s presidential race, as candidates from both parties try to score political points out of the presence of roughly eleven million undocumented immigrants in the country and the...more

Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial...

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen The Supreme Court of the United States (SCOTUS) agreed on Friday to review an important Clean Water Act (CWA) decision issued by the Eighth Circuit in Hawkes Co.,...more

U.S. Supreme Court Agrees to Decide Important Case Affecting Development in Wetlands

A critical part of the permitting process for many development projects is obtaining federal and state wetland permits. The key wetland authorization is usually a Section 404 permit from the U.S. Army Corps of Engineers...more

Overview of Comments on the USPTO's July 2015 Update to the Interim Examination Guidance

In late July, the USPTO issued its July 2015 Update to the 2014 Interim Section 101 Patent Eligibility Guidance (IEG). The July 2015 Update addresses a number of the issues and concerns raised in the public comments to the...more

Who Controls the Water? The Answer is Now On Hold.

With due respect to Norman Maclean’s famous quote, environmental lawyers and the regulated public continue to be “haunted by waters.” The question of “who controls the water?” is raging throughout the nation, and is...more

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more

Alabama Department of Revenue Issues Controversial Proposed Regulation Taxing Out-of-State Vendors

Consistent with Governor Robert Bentley’s public statement last week that he hopes Amazon.com or another internet e-tailer will sue the state of Alabama regarding its position on nexus, the Alabama Department of Revenue...more

2015 Mid-Year Securities Litigation and Enforcement Highlights

Welcome to the 2015 Mid-Year Report from the BakerHostetler Securities Litigation and Regulatory Enforcement Practice Team. The purpose is to provide a periodic survey, apart from our team Executive Alerts, on matters we...more

Beware Offering "Examples" In Comments To USDOL

Comments on the U.S. Labor Department's proposed changes in regulations defining the federal Fair Labor Standards Act's Section 13(a)(1) exemptions are, for the moment, still due on Friday, September 4, 2015. USDOL is...more

How Broad is Broad? New DOL Guidance Determines "Most Workers Are Employees"

In a move that is expected to have far-reaching consequences for employers, the U.S. Department of Labor issued new guidance on the classification of independent contractors as employees under the Fair Labor Standards Act...more

DOL Guidance Suggests Many Independent Contractors are Misclassified and Should be Covered by The FLSA

On July 15, the Department of Labor’s Wage Hour Division (WHD) issued guidance on how to identify employees who are misclassified as independent contractors. In a 15-page administrator’s interpretation (AI), WHD head David...more

US Department of Labor Issues Administrator’s Interpretation Aimed At Limiting Independent Contractor Classification

As forecast in our June 12, 2015 blog post David Weil, Administrator of the Department of Labor’s Wage and Hour Division (WHD) has released Administrator’s Interpretation (AI) No. 2015-1, entitled “The Application of the Fair...more

U.S. Supreme Court Upholds Privacy Rights for Los Angeles Hotel Operators

In a win for privacy advocates, the U.S. Supreme Court ruled that a City of Los Angeles municipal ordinance permitting warrantless police searches of hotel registries is unconstitutional. The subject ordinance (Los Angeles...more

Developments in Judicial Deference of Administrative Agency Actions

In my post of April 2, Divided Supreme Court Restricts Provider Challenges to State Medicaid Rates, I wrote about the March 31st Supreme Court decision that providers may not sue in federal court over the adequacy of state...more

Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process

In March, the Supreme Court upheld an agency’s reversal of its own regulatory interpretation without requiring notice-and-comment rulemaking. Regulated entities now face considerable uncertainty in relying on agencies’...more

Open Season on Provider-controlled Licensing Boards

In a closely followed decision with significant consequences for state licensing boards and their members, the Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101...more

How might the Supreme Court’s decision in Perez v. MBA affect the CFPB?

The U.S. Supreme Court’s recent decision in Perez v. Mortgage Bankers Ass’n invalidated a significant line of D.C. Circuit case law known, after the leading case, as the Paralyzed Veterans doctrine. A case involving a series...more

Supreme Court Allows Agencies to Reinterpret the Law at Their Discretion

In a decision published on March 9, 2015, the Supreme Court ended the D.C. Circuit Court’s Paralyzed Veterans doctrine, which required administrative agencies to utilize the Administrative Procedure Act’s (APA)...more

Notice-and-Comment is Not Required for Changes Made to Interpretive Rules

On March 9, 2015, Justice Sotomayor, writing on behalf of the majority, overturned the Paralyzed Veterans doctrine, which requires federal agencies to use a notice-and-comment process before making a significant revision to...more

Supreme Court’s Perez Decision Shines the Light on Federal Agencies’ Authority to Use “Interpretations” (Often called Shadow...

Over the last three decades, federal agencies have increasingly used “interpretations” to “explain” what a formal regulation means, rather than to go through the more expensive, complicated and slow process of changing the...more

U.S. Supreme Court Upholds Validity of Department of Labor’s Interpretation on Overtime Pay for Mortgage Loan Officers

For the past several years, an action by the Mortgage Bankers Association has been brewing in the courts challenging the U.S. Department of Labor (“DOL”) for issuing contradictory opinion letters on whether mortgage loan...more

Federal Bank Supervisory Agencies May Change Guidance Without Notice-and- Comment Rulemaking

New rulemakings to implement financial reforms leave banking organizations facing a host of uncertainties. Guidance or “interpretative rules” from the financial regulators on the intended scope and application of new rules...more

Supreme Court Holds Notice-and-Comment Rulemaking Not Required to Change An Interpretive Rule

When federal agencies change their interpretive rules, they are exempt from the formal notice-and-comment rulemaking requirements of the Administrative Procedures Act (APA), says the Supreme Court in its recent ruling in...more

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