Statutory Interpretation

News & Analysis as of

One-Time Anomaly Or Potential Turning Of The Tides? A Review Of The Supreme Court's 2014-2015 Term

In a marked departure from the overwhelming success employers experienced before the Supreme Court in recent years, the less successful recently wrapped 2014-2015 term could be an indication that the judicial tides may be...more

Can The SEC Ignore Congress’ Plain Language?

In proposing executive incentive compensation clawback rules, the Securities and Exchange Commission departs materially from the plain words of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act....more

DOL Issues Guidance Reminding Employers That “Most Workers Are Employees”

On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an important Administrator’s Interpretation discussing the misclassification of employees as independent contractors. Many companies engage independent...more

DOL Issues New Guidance Regarding the Misclassification of Employees as Independent Contractors

On July 15, 2015, David Weil, the Administrator for the U.S. Department of Labor (DOL), Wage and Hour Division, issued an Administrator’s Interpretation aimed at addressing the misclassification of employees as independent...more

Louisiana Supreme Court Holds That Statute May Confer Broad Duties On Insurers

In Kelly v. State Farm Fire & Casualty Co., the Supreme Court of Louisiana recently held that an insurer can be liable for bad faith failure to settle a claim even if it has not received a firm offer to settle the claim. The...more

Trenchant Analysis or Jiggery-Pokery? U.S. Supreme Court Upholds Affordable Care Act

In a 6-3 decision on June 25, 2015 in King v. Burwell, the U.S. Supreme Court held that tax credits are available under the Patient Protection and Affordable Care Act (Affordable Care Act or PPACA) to all eligible Americans,...more

Legal Alert: Call Answered (The First Ring): FCC Issues Sweeping Package of Declaratory Rulings on TCPA Petitions

In its most significant action on the Telephone Consumer Protection Act (TCPA) since its revised TCPA rules took effect in late 2013, the Federal Communications Commission (FCC) has issued a package of declaratory rulings...more

Expect USDOL Independent-Contractor "Clarification" This Summer

Employment Law360 recently reported U.S. Wage and Hour Division Administrator David Weil's announcement that he will soon release an Administrator Interpretation stating "a very clear set of criteria" delineating the agency's...more

Federal Judge Rejects Challenge to NLRB Ambush Election Rules

Employers concerned over the impact of new National Labor Relations Board union election rules lost some hope last week that federal courts would step in to stop the regulations from going into effect. The NLRB rules...more

A CEQA Trustee Agency “Muscles Up”: Third District Holds Department of Fish and Wildlife’s Newly Exercised Power To Require Notice...

Under CEQA, a “trustee agency” is a “state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California” and “[t]he California Department of...more

Proposed White Collar Exemption Regulations are Coming . . . Soon (and Other Items of Regulatory Interest)

While much of Washington, DC, begins its preparations for the inevitable summer slowdown, the Department of Labor’s Wage and Hour Division appears to be ramping up for a summer sure to keep wage and hour lawyers across the...more

Court Does Procedural/Substantive Two-Step in Lozano

On May 13, 2015, the Court of Appeal, Second Appellate District, opined in Cynthia Lozano v. WCAB (B258000) that a 2009 amendment to Labor Code section 3212.1 may be applied retroactively to an injurious exposure which...more

Act II: Oral Argument in Amgen v. Sandoz is heard at the Court of Appeals for the Federal Circuit

The Court of Appeals for the Federal Circuit yesterday heard oral arguments on the applicability and interpretation of two key provisions of the Biologics Price Competition and Innovation Act (BPCIA). Briefly, oral argument...more

The DMCA and fair use: Has anti-circumvention gone too far?

With the passage of the Digital Millennium Copyright Act (DMCA) in 1999, Congress expanded copyright law and the rights afforded owners of copyrighted works. At the time, copyright holders — worried that the increased access...more

Washington Court of Appeals: No Transactional Nexus Requirement or Dissociation for Washington B&O Tax

On April 29, 2015, the Washington Court of Appeals issued an important tax decision in Avnet, Inc. v. Washington Department of Revenue, Dkt. No. 45108-5-II. In its most significant holding, the court of appeals effectively...more

The Big and Small Implications in Perez v. Mortgage Bankers Association

There are two important takeaways from Perez v. Mortgage Bankers Association, one with a broad scope and the other much narrower. The broader ruling exempts agency interpretations of laws and regulations from any notice and...more

New Volcker Rule FAQ Allows Non-U.S. Banks to Make Certain Investments Despite Offerings to U.S. Residents

Federal regulators recently issued a new interpretation of Title VI of the Dodd-Frank Wall Street Reform and Consumer Protection Act — commonly referred to as the "Volcker Rule" — that makes it significantly easier for...more

A Tip for Employers: Be Aware of How the Department of Labor Interprets Its Regulations

This story applies directly only to the restaurant industry, but it is a cautionary tale for every employer in Connecticut subject to the Department of Labor’s authority to write and interpret its regulations....more

MassDEP Provided Substantial Discretion to Interpret Legislative Mandate in Global Warming Solutions Act

Just how much discretion will the courts give to the MassDEP to interpret legislative intent when it implements legislative directives such as a requirement to develop rules under the Global Warming Solutions Act? The...more

Supreme Court Signaling That Agencies May Have a Shorter Leash in the Future

The automotive industry, as much as any industry operating in the United States, has a substantial federal regulatory burden, with an alphabet soup of agencies charged with regulating under the authority of an alphabet soup...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

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

Agencies Must Aim for Recovery of the Species When Designating Critical Habitat

In a decision issued earlier this week, a U.S. District Court rejected the U.S. Fish and Wildlife Service’s (Service) interpretation of the Endangered Species Act (ESA), finding that its interpretation of the critical habitat...more

Inconsistent Administrative Tribunal Decisions: The Alberta Court of Appeal Weighs In

Conflicting interpretations of the same statute by an administrative tribunal are unlikely to be reasonable, let alone correct, the Alberta Court of Appeal recently held in Altus Group Limited v Calgary (City), 2015 ABCA 86...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

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